An exact abridgment in English, of The commentaries, or reports of the learned and famous lawyer, Edmond Plowden, an apprentice of the common law.: Concerning diverse cases and matters in law, and the arguments thereupon; in the times of the reignes of King Edward the Sixth, Queen Mary, King Philip, and Queen Mary, and Queen Elizabeth, with the exceptions to the pleadings, and answers thereunto; the resolutions of the matters in law, and all other principall matters arising upon the same. By F.H. of the Inner Temple London, Esq;

Townsends Case.

A Woman Tenant in tayle taketh husband who maketh a Feoffment in 20. H. 8. to the use of [unspec 111] himself and his wife for their lives, the remainder over, the wife is not temitted, Adjudged.

1. For that she cannot avoid the discontinuance by entry, as she might after 32. H. 8. cap. 28. but hath an action (viz.) cui in vita given to her to recontinue the possession, which she useth not, but cometh to the possession by another mean, she ought to take it in such order, and with such appen∣dances as the Law limits to such mean, & the mean which she useth here is 27. H. 8. and as the Statute appoints the possession to her, she shall be adjudged in, and not otherwise, although she be a Fem Co∣vert; For Coverture or Infancy is not materiall here; for it is not excepted in the Statute, And the Statute of 27. H. 8. of uses in the first branch of it, executes the possession according to the quanti∣ty of the State in use; And the quantity of the State in use was for that Term of the life of the husband and wife; ergo the Estate executed by the Statute, shall be to them also for their lives according to the use aforesaid. The second branch of the Statute executes the possession according to the quality of the Estate in use; But the quality and manner of this Estate was by purchase; for they shall be purchasers of the use; therefore she shall have the Land as a new purchase, and in no other manner: for the words Affirmative in the Estate includes a Negative, for that where the Statute ap∣points or limits order or form, in things which

shall not be by the Common Law before by words Affirmative, in the Statute includes a Negative, and shall not be in any other manner then the Statute appoints, as execution of uses hereby 27. H. 8. and of voucher, as if he were Tenant by W. 2. cap. 4. 14. H. 7.18. and after fo. 206. and entry for for∣feiture by Jointures, by 11. H. 7. cap. 20. before fol. 56. but contrary, and its words in the Nega∣tive, viz. and not above twenty one yeers, and the continuance of the State shall not alter the posses∣sion in other degree then the continuance made it at first, where the entry is taken away; contrary it is where the entry is lawfull, as if the disseisor maketh a Feeffment to the use of the diffeisee, and is in possession by 27. H. 8. but untill his reentry is not remitted, yet after he shall in respect of the first disseisen, and not by possession transferred by the Statute.

3. The wife here is not remitted, because the Statute of 27. H. 8. executes the possessions of the remitter, &c. And if it should be a remitter, the remainder shall be defeated and void thereby, con∣trary to the words of the Statute. And although that by the Feoffment, the freehold passeth to the wife, and she remains Tenant thereof after the death of her husband, and is Tenant to the pre∣cipe of a stranger untill her disagreement or disclaimer; yet she may use her action against him in the remainder, which is a disagree∣men in Law, to the use and possession conveyed by means thereof, and then the possession vests in the next remainder, as if the wife had not been named, or had been a dead person in Law. So if it were to the use of the wife in fee, if she refuse it, she may use her Action of Cui in vita against the Feoffor or

his Heir; for by her refusall they are Tenants to her Action, and the use reflects to the Feoffor or his Heir; for upon a Feoffment to the use of one which refuses, which is as to the use as a dead person, or of the thing insensible, as Pauls Steeple, there want∣eth considerations, and then the Feoffment shall be to the use of the Feoffor, and by using of her Action she may purge the incombrance by her husband; and so no inconveniency, if she were not remitted as was objected. It is not a remitter as the case here is, if the Estate had been made by immediate Feoffment, because the husband survives the wife (Littl. here presently fol. 150.) she is Te∣nant to the Action of the Heir of the wife; and therefore in 21. E. 3.26. & Ass. 2. that the Heir in like case enter upon the husband, bringeth an Assise, and good, no Law now by Brook, Remit∣ter, 41.