The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CCCLXV. Butler and Baker's Case. Mich. 33 & 34 Eliz. In the Kings Bench.

SEe the principal Case Reported in Cook, 3 Part, 25.* 1.1 The Argument of Egerton, Solicitor General, in the said Case, under his own hand, was as followeth; viz. The disagreement by the Wife in pais, is good by the Common Law. An Agreement may be by word, Ergo, a Disagreement. If Husband and Wife Lease for years, rendring Rent, the Husband dieth, the Wife ac∣cepteth of the Rent, that Acceptance shall bind her, 15 E. 4. 17. 3 H. 6. 48. 48 E. 3. 13. 16 E. 4. 8. 11 H. 7. 13. 9 H. 6. 44. 10 H. 6. 24.

Tenant in tail makes a Lease for years not warranted by the Statute, rendring Rent, and dieth, and afterwards the Issue accepteth the Rent, the same shall bind him; 21 H. 7. 38. 21 H. 6. 25. 14 H. 6. 26. 19 H. 6. 43. An Enfant Leaseth for years, rendring Rent, and at his full age accepts the Rent, 11 H. 7. 13. 21 H. 6. 24. 14 H. 8. 35. So where the Succes∣sor accepts of a Rent upon a Lease made by the Predecessor, 37 H. 6. 4. 8 H. 5. 10. 4 E. 4. 14. The same Law in Exchan∣ges and Partitions, If the Wife accepteth of Dower of the Land which her Husband hath taken in Exchange, she shall be barred of that Land which her Husband gave in Exchange, 6 E. 3. 50. 15 E. 3. tit. Bar. 125. 12 H. 4. 12. &c. And in all these Cases where there is an Agreement; and therein an Agreement implyed, scil. An Agreement to the Lease, and a Disagreement to have the Possession, &c. And so Agreement to the Land received in Exchange, and Disagreement to the Land given in Exchange; and all that by word and act in pais.

And so here in these Cases, Estates are affirmed, and entred, and benefit of the possession waived and refused. So it is also of a Right and Title of Action, 21 H. 6. 25. The Lord entitu∣led

to have a Writ of Right upon Disclaimer, accepts a Rent of the Tenant; Now he is barred of his Action. 13 Ass. 3. The Disseisee accepts homage of the Disseisor, it is a good bar in an Assise. 21 Ass. 6. Pendant a Cessavit, the Tenant aliened, the Lord accepted the Services of the Alienee, his Action is gone, 11 E. 3. tit. Dower, 63. A Woman entituled to Dower, accept∣eth Homage of the Ter-Tenant, the same is a Bar of her Dower: And as it hath been said of Entries and Actions, of which a Man may refuse the benefit by word and Acceptance in pais: So is the Law also in Cases of Estates vested, if the party doth not Enter.

Husband and Wife Tenants in special tail; the Husband levy∣eth a Fine to his own use, and afterwards Deviseth the Land to his Wife for life, the Remainder over, rendring Rent; the Hus∣band dieth: The Wife Enters and pays the Rent; now she hath waived her Remitter, 18 Eliz. Dyer, 351. 10 E. 4. 12. The Tenant enfeoffed the Lord and a stranger, and made Livery to the stranger, although the Freehold vested in them both, yet if the Lord disagreeth to the Feoffment in futuro, he cannot enter and occupy the Land, and he may distrain for the services, &c. If a Disseisin be made to the use of the Husband and Wife, and the Husband agreeth to it; the Freehold vests in the Husband and Wife; but the Wife is not a Disseisor, and after the death of the Husband, she may disagree unto the Estate by word. 12 E. 4. 7. And also an Agreement shall make her a Dissessisor. See to the same intent, 7 E. 4. 7. and Litt. 129. Although that in such and the like Cases, the Estate vests in some manner, yet it shall ne∣ver vest to the prejudice of the party without an express and actual agreement. And, that disagreement to an Estate in such manner vested, may be in pais and by word, seems by a Clause in the Sta∣tute of 27 H. 8. cap. 1. Where a Ioynture is made after Mar∣riage, there the Wife after the death of her Husband may at her pleasure refuse her Ioynture, and have and demand, and take her Dower, her Writ of Dower, or otherwise; scil. by word, and Acceptance in pais. And if in a Writ of Dower, the Tenant will bar the Demandant, by Ioynture made during the Coverture, he ought to say, Quod intrando agreeavit. See Litt. in Dower ad Ostium Ecclesiae; If the Wife entreth and agreeth, the same is a good Bar in Dower, Littl. 8.

Now in the principal Case, When the Wife agreeth to the Devise of Thoby, and the same is executed by entry; now the same is a full Disagreement to Hinton.

It was afterwards Objected, That although it be clear, That the Wife may waive her Ioynture in Hinton, by word and act in pais, without matter of Record; Yet some conceived, That this manner of Devise of Thoby is void by the Statute of 32 & 34 H. 8. The Statute enables to Devise two parts, or so much as

amounts to two parts in value at the time of the death of the De∣visor, for then the Will takes effect; which cannot be here in this Case; for at the time of his death the Ioynture of Hinton was in force, and so continued, until the disagreement after∣wards.

Also the words of the Statute are, Having a sole Estate in Fee∣simple; but here the Devisor had but a Reversion in Fee expectant upon an Estate tail, &c.

As to the first Point, it was answered, That the Disagree∣ment doth relate to the death of the Husband, and is now, as if no Ioynture had been made ab initio. And here the Heir shall have Hinton by descent, and he shall be Tenant to every Praecipe; and if it be brought against him the same day that the Husband dieth, the Writ shall be good by the Disagreement after, and the Heir shall have his age, &c. And if the Father had been a Disseisor, and had Conveyed the Land, ut supra; now by this argeement of the Wife, the Heir shall be accounted in by descent, and thereby the Entry of the Disseisee taken away.

And if the Heir in such case taketh a Wife, and dieth, by this dis∣agreement after, the Wife shall have Dower of Hinton; and hath such a possession, quod faciet sororem esse haeredem.

And if that the same day that the Husband dieth, the Heir levy∣eth a Fine, or acknowledge a Statute; or maketh by Inden∣ture enrolled a Bargain and Sale of it; by the said agreement, Hinton shall be subject to such Acts of the Heir. All which Cases prove, That the Devisor upon this matter at the time of his death, had a sole Estate in Feesimple in the Mannor of Hinton; and that the third part in value descended to the Heir: and so the Devise of Thoby good.

It hath been Objected, That here is not an immediate descent of which the Statute of 34 H. 8. speaks; And here the Mannor of Hinton doth not descend immediatly; for there was a mean time between the Death, and the Disagreement; and so the Will void for Thoby.

To that it was answered, That this word, [immediatè] sumitur dupliciter, re, & tempore, and shall be taken here immediatè re & statu, scil. That a Reversion, or a Remainder dependant up∣on a particular Estate in possession which is mean, shall not be al∣lowed for the third part descended; For a Descent which takes away an Entry, ought to be immediate; for a mediate descent doth not take away an Entry, Litt. 92. as the descent of a Rever∣sion or Remainder.

And if this word [Immediatè] had not been in the Statute, Then the Statute might have been construed, That it should be sufficient to leave the third part to descend in Reversion or Re∣mainder; but this word [Immediatè] makes it clear. And there∣fore the third part which descends, ought to descend immediatè in

re, & Statu. Yet a Reversion upon a Lease for years, or for life, with the ancient Rent reserved, is sufficient, and is a good and im∣mediate descent of the third part.

And this word here [immmediatè] to be construed ratione tempo∣ris, is a frivolous Construction; for the wore, Descent, implys that; For there cannot be an expectant and future descent; For descent is clearly immediate without mean time. But here in this case, the word, immediate, is to be taken in both senses, et re, et tempore; For by the Relation of the Waiver, it is, as if no Ioynture had been made, and the Heir is to have the profits of the Land from the death of his Ancestor: And so the descent of Hin∣ton immediatè, et re, et tempore; And, that the same time hath had such reasonable Construction, is now to see: The Statute of 18 H. 6 Cap. 1. is, That the Chancellor shall make Patents to bear date the same day that the Warrant was made, and not be∣fore.

It hath been taken, That if the Patents bear date after the Warrant entred, they are good. Which see, 19 Eliz. Plow. Com. 492. in Ludford and Gretton's Case.

The Statute of Acton Burnel is, That if the Extendors extend the Land too high, statim respondeant illi qui fecerunt extent. This word of time (statim) shall not be construed, that the Extendors shall pay presently, but that they shall pay without delay; i.e. at the day limited in the Statute. See 2 H. 4. 17, 18.

It hath been Objected, That it is a great inconvenience, that the King for his third part should attend the pleasure of the Wife, the time of her Election; and therefore the Will shall be void.

But the same is no inconvenience, for the Ioynture never was actually in the Wife, to her prejudice, until she entred into the Land, &c. And now by the Waiver, the Ioynture is avoi∣ded ab initio to all intents, as if it never had been made: So as the King shall be answered of the entire profits after the time of the death of the Husband; and may seize the whole Land pre∣sently, without staying the Election of the Wife, or taking notice of her Ioynture.

And so are the words of the Diem clausit Extremum; Tibi prae∣cipimus quod omnia Terras & Tenementa, of which, &c. et ea salvò Custodias donec aliud tibi praeceperimus; And that may be before any Office found: And those who have any Interest in the Land, or otherwise may shew the same upon the Traverse of the Office, or in the Court of Wards, and have allowance of it; And so there is not any prejudice to the King: No more, than when Tenant in Knight-service Deviseth all his Lands, There Di∣vision is to be made, and the King hath not any prejudice by it.

In the true Construction of this Statute, it is very necessary to consider the intention and meaning of both Statutes. And it is certain, That the said Statutes were made for the benefit of the Subjects, to enable them to dispose of their Lands for the prefer∣ment of their Wives, advancement of their Children, and pay∣ment of their Debts, whereof they were restrained by the Statute of 27 H. 8. of Uses.

The Savings in the said Statute are for the benefit of the King and the Lords; So as Provision is made not only for the benefit of the Subjects, but also for the profit of the King and other Lords.

The disability of the subjects to dispose of their Lands, to the intents aforesaid, appears in the Preface of the Statute of 32 H. 8.

And the favour and grace of the said King towards his Sub∣jects, to supply the necessity of Subjects, appeareth by the Pre∣faces of both Statutes.

The later Statute, is an Explanation of the former in divers Points.

The first Statute to persons, Having Mannors, &c. Ex vi termini, includes Tenants in tail, Ioynt-Tenants, Enfants, Idiots, Feme-Coverts; but the same is explained by the later Act, to be of Feesimple only, and of sole Estates, and to persons of sound memory, not of Coverture. And so, If the Kings Tenant Deviseth all his Land, the same is good for two parts of it; so if he Devise all which he hath in Feesimple, and leaveth the third part to descend in tail.

This Statute shall be taken strict against the Heir: For the whole Scope and Intent of the Parliament was, to bind the Heirs, and to enable their Fathers to dispose, so as the third part be saved to the King and the Lords. And that is manifest, For the Estates made by Collusion are preserved, and by an express Clause in the Statute kept in force against the Heir; but void as to the Lords.

As to certain Readers Cases, which have been put to prove, That these Statutes ought to have a strict Construction, I con∣ceive, Nihil operatur. A Man seised of one Acre by Disseisin, and of two Acres by good Title, all holden in chief by Knight-service, Deviseth the two Acres which he hath by good Title, and dieth, so as the Acre which he hath by Disseisin descends to the Heir being within age; the King seiseth, the third Acre is devested by Eigne Title; the Devise of the other two Acres is good against the Heir; for it is within the express words of the Statute, Having a sole Estate in Fee-simple. And yet by another Branch of 34 H. 8. the King for his time, shall have recompence out of the other two Acres; and he agreed the Law to be so: but the same doth not conclude our Case.

A Man seised of two Acres in Socage, and of one Acre holden by Knight-service in Chief of equal value, is disseised of the Acre holden in Chief, and Deviseth the other two Acres in Fee, the same is a good devise; for it is within the first branch expresly, Having a sole Estate in Feesimple, and not having any Lands holden by Knight-service; for during the disseisin, he hath not the Land whereof he was disseised, and therefore the devise is good for the benefit of the Devisee, and the Lord is not at any Mischief: For the Disseisee notwithstanding the Disseisin, remains Tenant of the Lord as to the Avowry, and the Lord shall have the Wardship of such Heir, and may enter upon the Disseisor, and so have a third part. And that Case was put out of Gilbert's Reading.

A Man seised in Fee of two Mannors of equal value holden by Knights-service in Capite; and a third Mannor of the same value is conveyed to him by Deed of Bargain and Sale acknow∣ledged; and before Enrollment, he deviseth the two first Man∣nors to J.S. in Fee, and dieth; and afterwards the Indenture is enrolled; yet the devise is not good for the said two Mannors by any Relation of the Bargain and Sale enrolled. That Case may well be agreed to be Law; For the Estate doth not vest in the Vendee before Enrollment, and so the Estate was not perfectly in the Devisor at the time of the Will; For although that the Enrollment shall relate to prevent all acts and charges made mean by the Vendor; yet it shall not relate to vest the Estate, from the time of the delivery of the Deed, For the Vendee cannot punish a Trespass Mean; And if the Vendee hath a Wife, and the Ven∣dee dieth before Enrollment, and afterwards the Deed is enrol∣led, she shall not be endowed: but here shall be some descent to take away an Entry, yet the Heir shall have his age. But in our Case, it is otherwise; for by the Waiver, the Ioynture was wai∣ved ab initio.

And he cited Carrs Case, 29 Eliz. in the Court of Wards, The King granted the Mannor of C. to George Owen in Fee, tenend. in Socage, and rendring 94 l. per annum; And afterwards granted 54 l. parcel of the said Rent, to the Earl of Huntington in Fee to be holden by Knight-service in Capite; and afterwards purchased the said Rent in Fee; And afterwards of the same Mannor enfeoffed William Carr, who devised the same for the payment of his Debts; And it was holden, That the devise was good against the Heir. And the King was not entituled to Livery or Primer Seisin: And therefore the Defendant was dismissed. But peradventure the Queen shall have benefit of the Act. See Cook 3 Part, 30, 31. Butler and Baker's Case.

The King gives Lands unto A. in Fee, to hold by Knights-ser∣vice during his life, and afterwards to hold in Socage; He may devise the whole: For at the time when the devise took effect, he was Tenant in Socage.

Lands holden in Knight-service, are given to J.S. in tail, scil. to the Heirs Males of his Body, the Remainder to the right Heirs of J.S. J.S. deviseth these Lands, and afterwards dieth without Issue Male, the same is good for two parts; yet during his life, he had not an Estate in Fee in possession.

The Father disseiseth his Son and Heir apparent of an Acre of Land holden in Chief by Knight-service in Capite; and after∣wards purchaseth a Mannor holden in Socage, and deviseth the said Mannor, and dieth, his Heir within age, the Devise is good for the whole, and the King shall not have Wardship of any part, and that in respect of the Remitter, and yet it is within the words, Having sole Estate in Fee of Lands holden; and within the Saving.

Tenant in tail of an Acre of Land holden of the King in Chief by Knight-service, seised of two Acres in Fee, holden, ut supra, makes a Lease for three Lives of the Acre entailed, reserving the accustomed Rent, and afterwards deviseth the other two Acres in Fee; and afterwards dieth seised of the Reversion and Rent; The same is a good devise of all the two Acres: And here is an immediate descent of the third part, for the same is within the words, In Possession, Reversion or Remainder, or any Rent or Service incident to any Reversion, or any Remainder. See the Statute of 34 H. 8.

A Man seised of three Acres of equal value holden by Knight-ser∣vice in Capite, assureth one to his Wife for her Ioynture by Act exe∣cuted; and deviseth another to a stranger, And the third to his Wife also; The King in this case shall have the third part of eve∣ry Acre: But if the stranger waiveth the devise, the King shall have the Acre to him devised, and the Wife shall retain the other two Acres, and it shall not go in advantage of the Heir. So if he deviseth the said three Arces severally to three several persons, to each of them one Acre, and the one Waives the devise in one Acre, The devise of the other two is good; Or otherwise, the King shall have the third part of every Acre, &c.

Notes

• * 1.1

  Poph. 87. 1 And. 348. 3 Co. 25.