The reading upon the statute of the thirteenth of Elizabeth, chapter VII. touching bankrupts, learnedly and amply expained,: by John Stone of Gray's Inn, esquire.

Points upon the Statute.

• 1. WHether an Adventurer into Virginia, be within the Statute?
• 2. Whether an Inn keeper be within the Statute?
• 3. Whether one born within the Isle of Man be within the Statute?

• 4. Whether the keeping of one of the King's Ca∣stles, be a keeping of his House within the Statute?

2. and 3. Questions are, Whether a Feoffment made without Deed to the Husband and Wife with Livery within the view to the Wife only, and she enters, will invest any thing in the Husband?

That Livery within the view may be made with-Deed, I make no great question, It is true, that the Books are both ways.

For 38 E. 3.32.38. Ass. 2. Baron and Feme, Allford, 41 E. 3. Jo. Sees Case.

Temp. Hen. 8 Brook, It is good saith he by Deed by Livery within the view.

Thorowgood's Case, Coke, lib. 9. If of the ground, he saith, see you this Land enter according to the Deed.

Cont. 39 E. 3 Ass. 12. I vouchsafe you the Land, 42 E. 3. Fitz. Feoffment. 54. the same Case, Wich: made he a Deed to his Father, Lass. non. Wich: was the Land in vica, Ass. it was half a Mile from the Church yard. 11. Ass. 6.11 E. 3. Ass. 86. Feoff∣ment of all but one Chamber. 43. Ass. 20. per Brook, Feoffment without Deed.

But the Question is, whether a Feoffment to two or three by Deed with Livery to one is good to all, but without Deed, but to him to whom, &c.

10 E. 4.1. 8 E. 4.12. 15 E. 4.18.

But here the Baron and Feme cannot take by mole∣ties, and their Estate is but one Estate, and they are Disseisors, both at Common Law, and also by Sta∣tute, so as if the Baron consent afterwards, he con∣sents as one that consents to a Disseisin made to his use.

15. Ass. 11. by agreement to a Rescous made by a Stranger, the Tenant is a Disseisor.

37. Ass. If my Tenant at will, enter into another Man's Land, lying by my Land, or take Estovers or common, if I consent to it, I am a Disseisor.

Tenant for Years enfeoffes, two and the Lessor releases to one of them, if he shall hold his Compa∣nion out.

27 E. 3. cap. 9. gives an Ass. of novel dissm. to Te∣nant by Statute Staple against him that outs him, as against a Disseisor; yet he hath no Free-hold, for 1 E. 3. a quid juris clamat lies against him, although he be but Disseisor fictitius, yet at the election of the Disseisee, he is a Disseisor in Law, as 7 E. 4. the Vouchee is but tenens fictitius, yet a release is good to him.

If Tenant for Years infeoff two and the Lessor brings assise against one, he shall not plead that his Companion is also Tenant not named; for by the Statute of 3 E. 1. de Conjunctim feofatis, he must slew of whose Feoffment, which if he do, he over∣throws his own Estate, and must plead himself was a Disseisor, which the Law will never allow; for 1 E. 4. fol. 7. no man shall be suffered to say, that he himself was a Disseisor. Coke, Beverlies Case 4. Rep.

To stultifie himself, Herl. 5 E. 3. non sanae me∣moriae inblenisht himself, 35. Ass. 10.

It is true, that in respect of themselves, they are in by Feoffment and Title, in respect of the Lessor they are Disseisors; then the question is, who shall be in election, and who shall interpret how this re∣lease shall work, the Lessor, or the Lessee, or the third Person.

It is probable to say the Lessor, for cujus est dare &c. and H. 7. If one Man be to pay two Sums at one time and place, and pay but one, it is

in election, and interpretation of the Payer and not the Receiver, which sum was meant to be payed.

It may be said the release, &c. for the Party to whom a Deed is made, if it inure to two intents, shall, &c. as 7 H. 6. a Feoffment may be used as a confir∣mation, 15 Eliz. D. release, and grant of a Rent.

But I conclude, the third Person shall take bene∣fit, &c. First, for the reason that int. se, &c. But they are Disseisors, not at Common Law, but by Statute, for the Benefit of the Lessor, of which Sta∣tute he may take benefit if he please, or waive it: 3 E. 4. 21 H. 7.32. 19 Eliz. D. Alien and Deni∣zen challenge medietatem linguae, so here he hath his election to make him a Disseisor by bringing his Ass. or a Tenant in by Title by the release.

Baron and Feme Disseisors, and a release to a Baron whether shall this inure to the Feme, for they are seised not by parts, but by intireties, it shall go all to the Husband, for flagitiosae rei nulla est societas, it is feodum. princip. & commiatem latronum. The question hath been, if a Feme sole be a Disseisor, and marry, whether the Husband be a Disseisor or not, 6 E. 3.42. he is not, for in a Writ of Entry, sur disseisin against him and his Wife, he had the view; but in our case (I take it) that if no other thing had happened between the Disseisin and the Release, the Husband should have had all.

The Husband is made King, the question is, Ba∣ron and Feme are Disseisors, the Baron is made King, the Disseisee releases to the King what is wrought. First, when Baron and Feme are Joyn∣tenants by Disseisin, by Title, or by Disseisin, all is one, and the Husband made King; whether do they remain Joyn tenants, or else they are Tenants in Common? Or else hath the King all? Or the

Queen all? I hold them to be Tenants in Common, although this case can be matched or compared with no case of the Law, wherein the alteration of the Persons only shall change the Estate of the Parties without making of any new conveyance of the Land. 32 H. 8. Brook Deraign.

22 H. 6.2. A Feoffment to an Abbot, and I. S. they are Tenants in Common, but a Feoffment to A. and B. and A. is made an Abbot, all shall survive to B.

So if a Feoffment to A. and B. and A. acknow∣ledgeth himself Villain to I. S. this alters nothing till I. S. enter; but whatsoever the King hath be∣fore he is King, or whatsoever descends to him, or he purchases after he is King, he holdeth all, in ju∣re coronae suae Angliae. Caluins Case, ex parte matris, Barkley's Case, Gavelkind.

Lancaster. Partition int. sorores Queen Eliz. Queen Mary, Queen Katharine, Ferdinando's Daughters.

So as the King's possession alters the very nature of the Land, and so makes him and his Wife Te∣nants in Common.

And that it makes her as it were a Feme sole, I need vouch no authorities, who all know it in Ex∣perience.

18 E. 3. fol. The Queen alone brought a Quare impedit.

49 E. 3.4. Cavendish, the King may give Lands or Goods to the Queen.

9 H. 6.13. Margery Parkers Case.

14 H. 4.67. Sci. Fac. by the Duke of Suffolk, against the Queen, to repeal the Patent whereby the King had granted to the Queen the Land of the Duke's Father, Tirwhite: In all times a Precipe hath been brought against the Queen, for she hath

always been a Person exempt, notwithstanding the Coverture, so both their Persons being changed, &c. it is as if the King were Dead.

Then have I driven it to this pass, that the re∣lease can work but to a Moiety, the question be∣ing whether it work for all or for a Moiety, or none, that it should work for none.

If a Feoffment be made to the Wife, and before agreement or disagreement, the Baron is made King; I say he comes too late now to agree or dis∣agree, no otherwise then if he had died.

Then the question is this, One makes a Disseisin to the use of I. S. and he is made King, can he now agree to the Disseisin? The rule is, The King cannot be a Disseisor; it is true, that in times past he might.

20 H. 3. Ass 431. Non habet ingressum nisi per Dis∣seisinam quam Dominus Rex facit quaerenti dum fuit in∣fra aetatene, & in Custodia Comitis de S. and the Te∣nant saith, Non habet ingressum per Disseisinam quam Rex fecit, sed habet ingressum per judicium curiae, &c.

But at this day the Law is altered:

22 E. 3.37. 23 E. 3. Entry 11. If the King Disseise one, and makes a Feoffment, the Disseisee shall have a Writ of Entry, neither in the per nor in the post, quam Dominus Rex fecit. See the Book.

1. H. 4. cap 8. It was doubted what remedy one should have, but the Statute is, That if the King enter, and grant the Land of another, if the Grantee enter, the Tenant shall have an Assise, and trebble Damages against the Grantee.

And by the same reason he may not agree to a Disseisin done before, for till agreement, the Dissei∣sor was Tenant, and nothing in the King, as 2 H. 7.16. 15 E. 4.15.

If you will say nothing but a Term passed, then in whom was it till I. S. was made King, in right of the Woman, and that it shall remain no otherwise than a Man that hath a Term in the right of his Wife, and is made King, she shall have all her Inheritance, and all her Terms, no otherwise than if he were Dead.

3 H. 7.14. The Queen and her Sisters were vouched as Heirs to E. the 4.

A Baron and Feme Alien, a Feoffment is made to the Feme, the Baron is made King, if upon Of∣fice found, the King shall have the Land?

He shall not have it.

For the Baron being made King, she is made a Denizen by relation to the Marriage, which was to prevent the relation of the Office, no otherwise than H. 7. being made K. it had such relation, that it drowned all former Offences, Forfeitures, and Attainders whatsoever.

7 E. 4.31. The King grants a Farm to the Baily and Commonalty of S. they are made Farmers, and a Corporation. 2 H. 7.

A Lord infeoffes his Villain, he hath the Land and his Freedom.

Grondon's Case Commentaries, the King grants Land to a Corporation, this is a Grant, and a Li∣cence in Mortmain.

Coke lib. 5.15. Tenant for Life grants a Rent charge to him in the reversion, and his Heirs, who grants it to one, and his Heirs, this is a grant and a confirmation.

A Disseisor makes a Lease for Life, the remain∣der to the Disseisee, the Disseisee grants this re∣mainder over, this is a grant, and a confirma∣tion.

A Parson makes a Lease to the Patron, who grants it over, this is an Assignment, and a Con∣firmation.

A Feoffment is made to Baron and Feme, the Baron is made King, if the Feme can waive.

• 1. Whether she can waive or not, as a Feme may after death of her Husband?
• 2. In whom it shall vest?
• 3. How the release should work then?
• 4. Whether a Feme Convert Disseisor can waive?

She may no otherwise than if the Baron were Dead, for she shall have all her own Land, and all her own Leases, but not her Goods.

And it is not of necessity that she expect his Death, for if a Feoffment be made to Baron and Feme, and they are Divorced, the Feme may waive.

In whom it shall vest, Whether in the King or not, because in a sort here was a partition?

But the question will be upon the release, whe∣ther that shall relate to extinguish all the right of the Disseisee in all the Land, as if the Case were, Disseisor makes a Feoffment to Baron and Feme, and I. S. the Baron, and I. S. make partition, the Disseisee releases to I. S. this inures only upon his possession for the half; the Baron dies, and the Feme waives I. S. hath all by Survivour, yet shall not the release go to all?

Also by the waiver it cannot go to the King, for that were to make him a Disseisor by the waiver, it cannot return to the Lessee, contrary to his Livery, nor to the Lessor, then will not this amount to an occupancy.

But in this Case the Queen cannot waive, but

still in regard of the Lessor she remains a Disseisor; for if a Feme Covert be a Disseisor, and her Hus∣band die, she shall not waive the possession, for so for years and days she might take the profits, and yet in the end pay nothing, which were unjust. 41 E. 3. An Infant may be a Disseisor, and cannot waive a descent.

It may be probably alledged, that she might waive, for being a Feme Covert, she may alledge ignorance of the matter of fact, that is, whether her Feoffer had but an Estate for years, or was seised in Fee∣simple, and we find in our Books, that great wrongs have been excused by the ignorance of a Man in what wrong he did, and waiving the thing wrong∣fully taken. As,

22. Ass. 85. vid. lib. faux imprison. Heire son frere prise, per Scots.

7 H. 6.27. One brought an Action of Trespass for taking his Swans; the Defendant pleaded that he was Lord of such a Mannor, and that in a River within his Mannor, he found the Swans, and took them for strays; but after he had notice whose they were, he waived the possession of them, and let them go; this was a good excuse both of the Tres∣pass and Damage.

21 H. 6.14. One brings Trespass, Quare filium suum rapuit, &c. He answered, you married my Sister, and had by her this Son, and you being out of the Country, it was reported you were Dead; whereupon I, as next kin to your Son, seized him, but when I heard you were alive, I sent him home again to his Nurse. Thus rightly did he waive, and avoid his wrong for want of true intelligence, which in Law we call Notice.

But in all those Cases, these wrongs were with

intents to do right, and the parties were of opinion they were in the right; but our case is of a Disseisor, which is always intended a wrong-doer.

But you will say, this Woman is no Disseisor at Common Law, her entry was not malum per se, but malum prohibitum, a Statute Disseisor, and she being a Feme Covert, is not bound by Statute.

But I say she is bound by the Statute, for in all Statutes where a Feme Covert is not expresly ex∣cepted, she is bound, as the Statute of 13 H. 6. Dis∣seisin 1. per Martin. Baron and Feme may both be Disseisors.

35. Ass. 5. Baron and Feme Disseisors, Assise a∣gainst the Baron sole abated.

15 E. 4.15. Disseisin is made to anothers use, the Disseisor is Tenant untill agreement.

21 E. 4.53. Tenant is issuing out of Land of the Wife, the Husband and Wife make a Rescous, they are both Disseisors.

That as I have argued the Lessor enters his entry is congeable for a Moiety, that is, the Queen's part.

Tenant in tail makes a Feoffment to a Feme Co∣vert without Licence, the Husband dies, the Feme waives.