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Institutes of the Laws of England ;
COMMENTARY UPON LITTLETON.
NOT THE NAME OF THE AUTHOR ONLY, BUT OF THE LAW ITSELF.
Quid te vana juvant miseræ ludibria charta?
Major hæreditas venit unicuique nostrum à jure et legibus, quàm à parentibus.
HÆC EGO GRANDEVUS POSUI TIBI, CANDIDE LECTOR,
AUTHORE EDWARDO COKE, MILITE.
With Additions of NOTES, REFERENCES, and PROPER TABLES,
The NOTES of Lord Chief Justice HALE and Lord Chancellor NOTTINGHAM;
An ANALYSIS of LITTLETON, written by an unknown Hand in 1658-9.
BY CHARLES BUTLER, Esq.
THE EIGHTEENTH EDITION, CORRECTED.
IN TWO VOLUMES.
PRINTED FOR J. & W. T. CLARKE, R. PHENEY; AND S. BROOKE.
PARCENERS are of two sorts, to wit; parceners according to the course of the common law, and parceners according to the custome. Parceners after the course of the common law are, where a man, or woman, seised of certaine lands or tenements in fee simple or in taile, hath no issue
(1) In the vellum MSS. of Littleton, belonging to the public library at Cambridge, there is the following argument or introduction to this third book: "En cest tierce liver ascun chose sera dit a toy, mon fitz, de parceners, “de jointenantez, de tenantez in comen, de estatez de terrez et tenementez "sur condition, de discentez que tollount entrez, de continuell clayme, de "releissez et confirmationz, de garrantiez liniall et collaterall et de garrantiez "que comensont per disseisin, de attornament, de surrenderons, de discon"tinuance, de remitterez, de tenant per elegit, de tenant per estatut merchant, "de tenant per estatut de la staple, &c."
On this addition to the printed copies of Littleton, sir William Jones, who kindly favoured me with the readings from the two Cambridge manuscripts, writes this observation." It is very remarkable, that in this argument a "Chapter is promised concerning surrenders, of which Littleton has not ex"pressly and separately treated. The word surrenderons, which is abbreviated "by the transcriber, seems completely to have puzzled a former owner of "the manuscript. He says in the margin, ceste parole est en auter fragment
que jeo ay: quære ce que il signifie. Since then surrenders are mentioned "in two manuscripts as one of the heads of the third book; it is not impro"bable, that the author intended to have written a distinct chapter concerning "them, as he did write concerning tenants by ELEGIT, and by STATUTE "MERCHANT and STAPLE.' See Sect. 324, where Littleton refers to a Chapter on elegits. -[Note 1.]
but daughters, and dieth, and the tenements descend to the issues (2), and the daughters enter into the lands or tenements so descended to them, then they are called parceners, and be but one heire to their ancestor (Parceners solonque le course del common ley sont, lou home, ou feme, seisie de certaine terres ou tenements en fee simple ou en taile, n'ad issue forsque files, et devie, et les tenements discendont a les issues, et les files entront en les terres ou tenements issint discendus a eux, donques els sont appels parceners, et quaunt a files els sont (1) * forsque un heire a lour ancestor): And they are called parceners; because by the writ, which is called breve de participatione faciendâ, the law will constraine them, that partition shall be made among them. And if there be two daughters to whom the land descendeth, then they be called two parceners; and if there be three daughters, they be called three parceners; and four daughters, four parceners; and so forth (2) †.
OUR author having treated in his two former bookes, first of
estates of lands and tenements, and in his second booke of tenures whereby the same have beene holden, now in his third booke doth teach us divers things concerning both of them; as, 1. The qualities of their estates. 2. In what cases the entry of him that right hath may be taken away. 3. The remedies, and in what cases the same may be prevented, or avoyded. 4. How a man may be barred of his right for ever, and in what cases the same may be prevented or avoyded.
For the first, he, having spoken of sole estates, divideth the quality of estates into individed and conditionall. Individed, into coparcenary, joyntenancy, and tenancy in common. Coparcenary into parceners by the common law, and parceners by the custome; and he beginneth his Vide Sect. 385. third book with parceners claiming by descent, which, comming by the act of law and right of bloud, is the noblest and worthiest meanes whereby lands do fall from one to another. Conditional, into conditions expresse or in deed, and conditions in law. Conditions in deed, into gages; which he divideth into vadia mortua and radia viva. Vadia mortua, so called because either money or land may be lost: and viva, because neither money nor land can be lost, but both preserved. Then speaketh he of descents, wherby the entry of him that right hath may be taken away. And next to that of the remedy how to prevent the same, viz. by continuall claim. Then he teacheth, how a man, having a defeasible or an imperfect estate, may perfect and establish the same by three meanes, viz. by release, by confirmation, and attournment, where that is requisite. Having spoken of a descent, being an act in law which taketh away an entry, he doth then speake of a discontinuance, the act of the party, whereby the entry of them that right have shall be taken away. And next unto that he teacheth in what case the same may be avoided by remitter. After he had treated of descents and discontinuances which take away entries, but bar not actions, lastly, he setteth forth the learning of warranties, (a curious and cunning kind of learn
+ These are notes 1, and 2, of 163. b. in the 13th and 14th editions.
(2) In L. and M. and in Roh. it is daughters instead of issues.
(2) † in L. and M. and in Roh. an &c. comes in here.
ing I assure you) whereby both entry, action, and right may be barred, and the remedies how they may be prevented before they fall, and in what cases they may be avoyded after they be fallen. And thus have you an account of the thirteene severall chapters of his third booke. And now his method being understood, let us heare what our author will say unto us concerning parceners.
"Et quant a files els sont forsque un heire a lour [a] ancester." This is false printed; for the originall is, et quanque files els sont, els sont parcêners, et sont forsque un heire a lour auncestor (3).
"Parceners." [b] Jus descendit quasi uni hæredi propter juris unitatem, sicut sunt plures filiæ, &c. Et ubi omnes simul et in solidum hæredes sunt, plures cohæredes sunt quasi unum corpus, propter unitatem juris quod habent. Whereupon it followeth, that albeit where there be two parceners [c] they have moities in the lands descended to them, yet are they both but one heyre; and one of them is not the moity of an heire, but both of them are but unus hæres.
[a] Bract. lib. 2. fo. 66. 71, &c.
& 76, &c. and lib. 5. fo. 443. Brit. fo. 58.112.
li. 6. ca.
128. 183, 184, 185. 189. 193. Flet. lib. 5. ca. 9. Glan. li. 7. ca. 3. li. 13. c. 11. [b] Bract. li. 2. fo. 66. 76. Flet. ubi supr. Brit. ubi sup. & Statut. de Hibern.
[c] Vide Sect. 8. vers. fin.
[d] Fleta, lib. 5. ca 9. Fleta, lib. 6. ca. 47.
And it is to be observed, that there is a diversity betweene a descent, which is an act of the law, and a purchase, which is an act of the party. [d] For if a man be seised of lands in fee, and hath issue two daughters, and one of the daughters is attainted of felony, the father dieth both daughters being alive; the one moitie shall descend to the one daughter, and the other moitie shall escheat. But if a man make a lease for life, the remainder to the right heires of A. being dead, who hath issue two daughters, whereof the one is attainted of felony; in this case some have said, that the remainder is not good for a moitie, but voyd for the whole, for that both the daughters should have beene (as Littleton saith) but one heire (4).
A man makes a gift in taile, reserving two (Post. 196. b.) shillings rent to himselfe during his life, and if he die a. his heire within age then reserving a rent of twentie shillings to his heires for ever; he dieth having issue two daughters, the one of full age, the other within age: in this case the donee shall hold by fealty onely, insomuch as the one daughter as well as the other is his heire, and both of them (as Littleton saith) make but one heire, ergo, his heire is not within age, neither is his heire in that case of full age. But if the reservation had been, " and if he die, his heire neither being within age, nor of full age, "&c." in this case the reservation had beene good. And if it doth not begin in his next heire, it shall never begin as this case is, for that the precedencie is not performed. [e] But yet if one of [e] Temps E. 1. them be of age, and the other within age, she shall have her age Age, 128. 8 E.2. and other priviledges and advantages that an heire within age shall Judgement,240.
30 E. 3. 7.
29 Ass. 25.57.
44 E. 3. Age, 47. 26 Ass. 65. 13 E. 3. Age, 51. 28 Ass. 22.
(3) The words are as here corrected by lord Coke both in L. and M. and in Roh.
(4) See ant. 25. b. 26. b. and post. 196. b. 374. b. Here lord Hale introduces the following note.-Donee in tail on condition not to discontinue. Donee has issue two daughters. One discontinues. The donor may enter. R. 26 Eliz. C. B. sir W. Moore's case. Hal. MSS.-[Note 2.]