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;

Browning against Beeston.

LEase [unspec 131] for yeers by Indenture, by which the Lessee Covenants and grants to render and pay for that land, thirty seven pound yeerly, at two feasts of the yeer, naming them, or within two moneths af∣ter at a certain place out of the Land; and more∣over Covenants & grants, if the said rent and farm of thirty seven pounds be areare and not paid at the time limited without any demand of the Lessor, then the Lease shall be utterly void, extinct, and of no effect; and that it shall be lawful for the lessor to re-enter; and after the rent was not paid, and before the entry, the lessor maketh a new Lease, and the first Lessee bringeth trespas against the second Lessee, and he pleads the matter aforesaid, and pleads the condition in this manner, as in the Indenture is contained, and saith not precisely, that the Lessee had Covenanted as aforesaid; And also said, that the Rent was arear by the space of two moneths next after the said feast, and adjudged for the plantiff for these two causes only.

• 1. That the pleading of the Covenant, which is contained in the Indenture, that the first Lessee hath covenanted, is not but a recitall, and no ex∣press averment, that he hath made such a Covenant in facio fol. 143. by Bromly.
• 2. Because that the pleading of the Rent arear for two moneths, varies from the Indenture, which

• is after two moneths, fol. 143. b. by all contrary to Catlin, for he said, that this is to be intended so if necessity.

Matters in Law are left at large, but the better opinion was for the defendant.

If this Covenant and grant of the Lessee to pay thirty seven pounds yeerly, be a reservation of the Rent or not, and by Ramsey, fol. 132 it is not.

1. For that it is not issuing out of the Land by the way of Charge; for pro terra implies a cause of the grant and is not words to Charge the Land.

2. It is not a Rent service for default of words of reservation of the lessor, as reddendum, reservan∣dum, tenendum, &c. for this commences by words of the Lessee, and which amounts not to a sum in gross, because it goeth not with the revertion, as he which hath Land on the part of the mother, ma∣keth a Lease for yeers by Indenture; the Lessee Covenants and grants to pay to him and his heirs twenty shillings Rent, the Lessor dies without issue; the heir on the part of the mother, shall have the revertion; and on the part of the father, the Rent, for that it is a some in gross, and not a Rent ince∣dent to the revertion.

3. It is not farm, because it is not a Rent, be∣cause they are all one.

4. It is a void condition, if it be a condition, because it refers to the farm and Rent, where there is not any such, as a condition that the Feoffee shall infeoffe a Corporation, which is not; or his wife, is voide, because the first is impossible, and the other against Law; but the state, because it is

Precedent in defeasans of which they are made, shall stand good.

Stamford and Walsh Justices, fol. 134. It is a Rent; first this Covenant and grant is equivalent to reservation, and is by Indenture, in which the words are the words of both, and taken for the words of him which most aptly speaks them, as a Rent upon a Feoffment, Litl. 47. is a grant of the Feoffee, and in Judgment of Law shall dis∣pose words which have substance, formality, and words there shall be taken indifferently; For all parties assent, and are privy to the speaking of [unspec 134] them. But words of a deed poll, taken more avail∣able to the grantee, 20. H. 7.8. by Brian, and the Law expounds one word in the sence of another, as 10. E. 31. 14. H. 8.2. 21. E. 3.49. Reverter for Remainder, So it taketh a word spoken by one for the word spoken by another, and namely by Indenture, and although it were not a Rent, but a sum in gross, yet it extends to it, and to issue out of the Land for the Law, because it is spetially alleadged the ground of payment of a sum to be for the Land, and yeerly to be paid, and the one is executory for the other; For (before) fol. 71. if Land recovered by an elder title, shall not pay which hath not the thing which ought to pay, as 15. E. 4.4. if he may not have the ancient Pale, he is ex∣cused to make a new, so 9. E 4 10. if he will not give counsell, the other shall stay the Annuity, and 39. Assise 23. Rent for equality of partition, charge the Land parted, not mentioned because the Rent was granted and executory for the land. So 2. H. 7 5. it shall discend to the heirs of the grantee without naming, because it cometh in respect of the Land, which should discend to the heir, and

when the ground of the matter appeareth, the Law supplies the fault of the words, because the Law respects the ground of the matter and consi∣deration.

Gawdy. It is not a rent, fol. 136. in 39. H. 6.33 all [unspec 136] the words shall be taken the words of one party, viz. The first in the Indenture wherefore they are not the words of both, because it estops not the o∣ther party; and an estopple discends upon the Heir of him which is Heir at the Common Law, because he is Son by the half venter, neither Sister, or Brother by the entire bloud; and although they agree to have the same, yet how, viz. as a rent or not, is not parcel of their agreement. So it shall not be construed a rent, because words may have a reasonable construction; otherwise in 22. E. 4. in the case of the Prior of Bingham, the Covenant was of a rent which shall be intended rent service, the Fine saith not predictum redditum, but was of five acres and was for the land, and the Grantor was Tenant, so holden there to be an annuity; so here.

Morgan, it is a rent, f. 137. b. for the assent of the [unspec 137] parties is the chief matter to be considered, and not who speaks; for the Lessor shall not have debt for the rent reserved, unless it be a Contract; and it is not a Contract without the assent of all; and the words comming out of the mouth of one shall be the words of all in the operation of the Law.

Catline. To the same purpose, because words equivalent to a Reservation; for the Law takes words of substance, and not usual equivalent; and words of substance is usuall, and the Law regards the effect and substance more then form; the words

and substance will supply the form, rather then the intent of the parties shall be void; as Lessor and Lessee for life makes a Feoffment, it shall be the Feoffment of the Lessee, and confirmation of the Lessor, yet no word of Confirmation (before fol. 59.)

And so if a Tenant for years, and the Lessor make a Feoffment in Fee, this shall be taken the Livery and Feoffment of the Lessor, and surrender of the Lessee; and yet there is nor any word of surrender of the Lessee, but shall be so taken by the judgemen of Law.

So a rent granted by Tenants in common, is severall, because estates several; yet words joynt (after fol. 161.171. and Perkins fol. 22.) so renunti∣avit communiam, 9 H. 6.35. (after fol. 162.) it is a a Lease; because where words are equivalent in [unspec 141] substance, the Law will appoint how they shall en∣ure, and in Contracts it is not materiall who speaks the words, if the other agree; for the Law respects it, and the words which prove the assent and have substance sufficient.

And therefore 21. H. 6. if the words of the Ob∣ligee make a Condition, viz. the Obligee vult & concedit, if the Obligor steterit arbitrio, yet usually they are the words of the Obligor for Condition, Brooks cond. fol. 58. abridge this contrary.

So an annuity pro consilio, or a rent for Composi∣tion of Tythes, 9. E. 4.16. enure as words Condi∣tionall, and a Covenant that the Farmor shall not be impeached for waste, amounts (21. H. 6.47.) to hold without impeachment of wast, 17. E. 3.9. award assigns land of greater value then the Dower to the Widow, and the second Husband, who granted a rent by the same Deed to him, with distress for the

overplus, and the Deed recites this, the Wife Les∣see after the death of her husband, because the Grant to pay the rent for the overplus of the land, a good reservation; for otherwise he shall not be bound contrary before of a Grant for reasonable Dower, and no mention made that the land was more worth then the Dower, because without con∣sideration there, and is a Collateral thing; and so words shall enure upon Acts between the parties concerning the principal matter, and Col∣lateral matter, differ also; the summ is cer∣tainly recited, and the rent shall be this summ (for the sentence stands good, without words, rent, or farm) where those words shall be adjudged void, rather then the certainty expressed to be void; as 4.E. 4.29. I. is obligee to B. Solvendum to I. yet good, and the Count shall be to be paid to B. for the intent of the parties makes this good.

So a Grant of Remainder by the name of Re∣version of the land, a good Grant, notwithstanding the mis-terming of the thing, because the certain∣ty of the land appeareth; but by a Grant of all Re∣versions, a Remainder doth not pass, because the grant is in generalty; and so certainty by special Terms, and by general differs. So where he saith, if all rents shall be arear, and where the said rent of 37. l. 3. s. 4 d. in certain.

So words containing generalty, and incertain∣ty; and specialty, and incertainty, differ; to pay 10 s. at Michaelmas 1599, and at the same Feast of S. Michaelmas next ensuing other 10. s. there the summ is taken the like, for that it cannot be the [unspec 142] same if it come after; so one word taken for another supplies the intent of the parties.

2. That the Covenant and Grant for not pay∣ment,

that the Lease shall be void, is not a Condi∣tion by Ramsey, fol. 133. because it is not spoken by him which gives the estate; as if two Joynt-Tenants make a Lease upon Condition, and that then one Lessee enters, he shall not enter but into one moytie, for that he gave no more; and the words of one, because the Law saith, he speaketh on∣ly for his moytie, shall not make this Condition to another which speaks not. And also the Condi∣tion is subsequent in time of the Statute, which was executed before, for the Demise and habendum maketh the Lease (contrary by Stamford and Walsh. fol. 135.) for that the parties are so agreed by In∣denture, and the one party and the other assents; and therefore all one as if he had reserved the Con∣ditional payment, which is called Rent, and is a Condition annexed, for to avoid the Estate Litl. fol. 70.

So here, because the summ certainly named, be it a Rent, or summ in gross; for it is not requisite that the Lessor should speak; but if the words of the Indenture had intendment to avoid the estate, it sufficeth, and the words shall be taken agreement of every party, and not spoken by one party more then another, as provisoes are, or si contingal; and all the words of a Deed shall take effect at one in∣stant, because the delivery is at one instant; and it hath not several times proved, by 10. ass. 15. where several Deeds delivered at one and the same time, the one being a Lease for years, the other a Charter upon Condition to have Fee, if disturbed; before fol. 34.

So 9. H. 6.35. Lease without Impeachment of Waste, provided, That he makes not voluntary waste in houses is Conditional; and waste lieth

because all made by one Deed; if by two Cove∣nants, yet it is not spoken by the Lessor, more then the Lessee, but shall be taken as an agreement of both the parties.

Gawdie, Justice to the contrary, fol. 137. De∣feasance of a thing Executory, as an Obligation, Recognisance, or Warranty, 43. Ass. fol. 44. good; of a thing executed, not. As 43. E. 3. Defeasance of a release, unless delivered at one instant; nor of a Lease executed, by Morgan it is Conditional, fol. [unspec 142] 138. For Covenant lyeth not here, because that Covenant lyeth of a thing to come, and to be done by the person of some one, and not of a thing to be executed in it self; and therefore if the words e∣nure not to the effect, to determine the first Lease, here they shall be void, because it may not enure to another effect.

It is not a Condition by Brooks, because it is not restrictive and compulsarie, as are Ita quod non if the Lessee doth such an Act, or if it happens, or proviso; but a proviso alwaies maketh not a Con∣dition, as in Dockwraies case, 27. H. 8.15. be∣cause voluntary; for Leessee without words com∣pulsary of the Lessor, Covenants and Grants, That he will remove, &c. by Catlyn, fol. 142. is a condi∣tion, because it implies the intent of the parties to be Conditional, yet it hath not the usual words as a Feoffment, to pay 20. s. or instruct his Son in such an Art.

For it is a Condition, because the parties pur∣port such intent. So proviso, That the Lessee make such a thing.

So here, it shall enure as a Condition, in what∣soever manner it be called, it shall enure as a De∣termination of the Leasee because it was made at the time when the Lease began.

If the second Lease admit it be a Condition, shall be good before re-entry, or not. Ramsey, fol. 133. It is not good, because after the Condition broken, untill he enters, he hath but a Title, be∣cause he may not grant, and the Lease continues, and the possession also.

And therefore 22. E. 4.37. Lesser shall not have Trespass untill entry, 14.3. Ass. 11. Distress estop his entry, because it affirms the continuance of his Term.

Where a man may enter, he ought to enter, or not have the thing; and where he cannot enter, he ought to make claim before he shall have it As a Reversion granted upon Condition which is bro∣ken, the Rent is extinct without Claim, for that he may not have it by Claim; by Stamford and Walsh it is good, fol. 136. for that the first Lease for years commenced by words without entry, it may be determined by words without entry; Lease for life not, 2. Mar. fol. 142. because Livery and Sei∣sen, which gave the State and Entry, which ought to be avoided by entry upon Condition broken, & it is expressed here how the Lease shall be avoided, viz. by entry; and there if he enters not, or doth an Act which excludes him to Enter, as the making of an acquittance, or distraining, there the Lease is good; But the words here, are utterly extinct, dissolving the Lease without Entry, and no Act after shall make it good; and the words of the en∣try here, are surplusage, and take away the effect of the first words.

As to 22. E. 4. The Lessor cannot punish him, because the entry was first with his assent; and when the Lease ended, he was Tenant at suffer∣ance; but he may make a Lease to another, and it

determines his will; by Gawdy it is not good. Void here, shall be expounded void by Entry, as W. 2. cap. 1. before fol. 82. Finis ipsojure sit nullus, viz. to the right; yet it is a discontinuance. So by 8. H. 6. cap. 10 Outlary shall be void in Indict∣ment, or Appeal, if no Capias in the County where he dwelleth.

Common Law, 19. H. 6.2. expounds it shall be void by Writ of Error; he that hath a pos∣session in Law, may Lease before entry, after fol. 142. after a stranger hath abated, not, because an∣other hath possession in Deed.

So a Lease by the Husband for years, shall not be void of the Wives land after his death before en∣try of the Wife; for possession ought to be defeat∣ed by possession, and possession ought to be gain∣ed by entry.

Catline, fol. 142. b. By the not payment, the first Lease is determined without entry, because it may be made by word without other circumstance, (otherwise of Free-hold) and therefore may make a Lease, but cannot have Trespass without entry, as Heir (before fol. 137.) he may make a Lease be∣fore entry, but cannot have Trespess before entry, 11. H. 7.22.

So a Lessee may grant his Term before it com∣mence, 22. E. 4.37. yet he shall not have Tres∣pass before entry, 37. H. 6.18. To shew two mat∣ters where both are effectual, and answerable, makes a double plea, as 3. H. 6.32. Feoffment up-Condition to infeoff the Heir, and averment of the Collusion in Wardship of the body.

So 20. H. 6.7. Seisen in his Ancestor and him∣self, by avowing.

So 22. H. 6.37. Two continuall claims, viz.

by the predecessor, and the Plaintiff, for to avoid a discent.

So 19. E. 4.4. by Vavisor, and Brian. Two di∣scents in Fee bars not; two discents is not double in Tail, because one answer (viz.) he gave not, makes an end of all; for if he cannot shew one thing without the other, it is not double; nor if the one is pursuant to the other, as fully admini∣stred, and so nothing in his hands; for the last is but a conclusion of the former. But the other Ju∣stices, held the aforesaid two exceptions effectual for the causes aforesaid, and that the Rejoynder was vicious; wherefore they said, That it was in vain to argue them, and therefore in consideration of them onely, without respect to the other matters ri∣sing upon the Rejoynder, and before debate, they awarded for the plaintiff.

Notes

• 1 Mar in ba. Ray Trespass.