Critica juris ingeniosa: or Choice cases in the common-law never published by any other author. Digested under alphabeticall heads by H.B. Esq; optimum est quod quæritur.

Discontinuance

JF Land be given to two, and to the Heirs of the body of one, and he which hath the Estate in tail makes a Feoffment, and both die, this is no Discontinuance, for any part; for he was not seised of the Estate in tail at the time of the Feoffment.

If Tenant in tail makes a Lease for life, the Remainder for life, and af∣ter Releases to him in the Remainder, and his Heirs, this is a Discontinuance. If the first Tenant for life dies in the life of Tenant in tail. If Tenant in tail makes a Gift in tail to A. and af∣ter Releaseth to him in Fee, and dies, and A. dies without Issue, the Issue in tail may enter upon the collaterall Heir of A. for the Fee was not Exe∣cuted in the life of Tenant in tail, though it passed out of him. Quaere of all these cases.

If the Grandfather be Tenant in tail, and makes a Gift to Baron & Fem in tail, the Husband dies without Is∣sue, the Grandfather dies, the Fa∣ther Releases to the Wife, being Te∣nant after possibility, and to her Heirs, and dies, the Wife dies, the Issue cannot enter upon the Heir of the

Wife; for though it be no Disconti∣nuance, yet when the Wife came to the Fee simple, the Fee was Executed, and then she died seised in Fee, and the Discent takes away the Entry. But if the Wife had been Tenant in tail, and then she had died without Issue, it had been otherwise; for then she had not died seised, but of an Estate tail in possession, and a Fee in Rever∣sion, and that will not take away an Entry.

If Tenant in tail infeoffes the Wife of the Donor, that is a Discontinu∣ance.

If Tenant in tail infeoffes the Donor and a Stranger, that is a Discontinu∣ance of all for the benefit of the Stran∣ger. If Tenant in tail of a Rent grant that in Fee, that is no Discontinuance, for the Grant endures no longer than for his own life.

If Tenant in tail makes a Lease for the life of the Lessee, and then dissei∣ses him, and makes a Feofment in Fee, the Lessee dies, and Tenant in tail dies, that is no Discontinuance; for the Fee was not Executed by lawfull means.

So if Tenant in tail makes a Lease for life, and grants the Reversion, the Grantee disseises Tenant for life,

Tenant for life, and Tenant in tail die, this is no Discontinuance, for the Fee was not executed according to the Grant. But if Tenant in tail makes a Lease for her own life, and disseises Tenant for life, and makes a Feofment, that is no Discontinuance; for by the Disseisin he was seised in Fee, and the Fee was devested out of the Donor, and then he was not Te∣nant in tail. The first case seems clee∣rer, if Tenant in tail dies, living Te∣nant for life. If Tenant in tail makes a Lease for the life of the Lessee, who is disseised, and Tenant in tail Releases to the Disseisor without Warranty, Te∣nant for life, and Tenant in tail die, this is a Discontinuance in Fee; for the Disseisor had the same Fee execu∣ted in the life of Tenant in tail which was first made, as if he had after Re∣leased to Tenant for life, which would have countervailed an Entry and Fe∣ofment.

A. makes a Gift in tail to B. who makes a Gift in tail to C. who makes a Feoffment, and dies without Issue. Nothing made a Discontinuance to the Issue of B. but the Livery of B. for by that the Reversion of the Do∣nor was discontinued. But when C. died without Issue, that Livery is de∣termined,

and the Discontinuance purged; and the Feofment of C. be∣ing a Stranger to the first in tail, can∣not be a Discontinuance, especially when there was but a Right of the Intail discontinued by the Feofment of B. and a Right cannot be discon∣tinued.

If Tenant in tail be disseised, and Re∣leases to the Disseisor with Warranty, and is attainted of Felony, and hath his pardon, and dies, that is a Dis∣continuance; for if he had purchased the Land after his pardon, it should have gone to his Issue, which proves that the blood between him and his Issue is not corrupt, as it is between him and his Ancestor; then seeing the Warranty was in being at the time of his death, there is no Impediment but that it should descend.