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sac sargain and seil lands where of he a hengt á his see, this is good s le: therwise, it is where a bishop is ย 3 im and his successors, to the use of s heirs, that is not good, no, not for ups ife, Jut the use is merely void.

the term, and it shall not inure by way of dis charge, although the husband may dispose of the wife's term.

So if the lord of whom the land is held be infeoffed to the use of a person attainted, the lord shall not hold by way of discharge of the use, because of the king's title, annum, diem et castum.

A person uncertain is not within the statute, nor any estate in nubibus or suspense executed; as if I give land to I. S. the remainder to the right heirs of L. D. to the use of I. N. and his heirs, I. N. is not seised of the fee-simple of an estate pour vie of I. S. till I. D. be dead, and then fee-simple.

Contrary law of tenant in tail; for, If I give land by tail in deed, since the statute, to A., to the use of B. and his mrs: 3. at a fee-simple determinable upon ron without issue. And like law, ved out before the statute was; for the ason which bred the doubt before the 2. vas wecause tenant in tail could not exe-in stave without wrong; but that since the spute taken away, because the statute sight of entail, as the statute of 1 R. ... and that reason likewise might have uswered before the statute, in regard of the

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Ce covert or an infant be infeoffed to a since the statute, the infant or baron Nascalate to discharge or root up the feoffment; a infaut be infeofled to the use of himself actis, and I. D. pay such a sum of money pne use of 1 G. and his heirs, the infant may agree and overthrow the contingent use. Coatraty law, if the infant be infeoffed to the 4 of anuself for life, the remainder to the use 1. S. and his heirs, he may disagree to the see deal as to his own estate, but not to divest to ea under, but it shall remain to the benefit of **** remainder,

And yes, it an attainted person be infeoffed to 4 be king's title, after office found, shall neveat the use, and relate above it; but until Vollows the practque use is seised of the land.

Ito law of an alien; for if land be given to am alioa to a use, the use is not void ab initio, yet device alien or attainted person can maintain an accolo defend the land.

Like law, if, before the statute, I give land to I. S. pour autr. vie to a use, and I. S. dieth, living cestuy que use, whereby the freehold is in suspense, the statute cometh, and no occupant entereth: the use is not executed cut of the freehold in suspense for the occupant, the disseisor, the lord by escheat. The feoffee upon consideration, not having notice, and all other persons which shall be seised to use, not in regard of their persons but of their title; I refer them to my division touching disturbance and interruption of uses. It followeth now to see what person 2. What persin may be a cestuy que use. The king may be cestuy que use; but it behoveth ***** both the declaration of the use, and the convey ance itself, to be matter of record, because the king's title is compounded of both; I say, not appearing of record, but by conveyance of record. And, therefore, if I covenant with I. S. to levy a fine to him to the king's use, which I do accordingly; and this deed of covenant be not enrolled, and the deed be found by office, the use vesteth not. E converso, if enrolled. If I corenant with I. S. to infeoff him to the king's use, and the deed be enrolled, and the feoffment also be found by office, the use vesteth.

But if I levy a fine, or suffer a recovery to the king's use, and declare the use by deed of covenant enrolled, though the king be not party, yet it is good enough.

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A corporation may take a use, and yet it is not material whether the feoffment or the declaration be by deed; but I may infeoff I. S. to the use of a corporation, and this use may be averred. A use to a person uncertain is not void in the first limitation, but executeth not till the person be in esse; so that this is positive, that a use shall never be in no king's villain, if he be infeoffed to a use, abeyance as a remainder may be, but ever in a và xonga title shall relate above the use; other-person certain upon the words of the statute, and the estate of the feoffees shall be in him or them which have the use. The reason is, because no confidence can be reposed in a person unknown and uncertain; and, therefore, if 1 make a feoffment to the use of I. S. for life, and then to the use of the right heirs of I. D., the remainder is not in abeyance, but the reversion is in the feoffor,

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to it the lord be infeoffed to the use of his Pou, the use neither riseth, but the lord is in by poumon law, and not by the statute disvaged of the use.

fit the husband be infeoffed to the use of how with for years, if he die, the wife shall have

quousque. So that upon the matter all persons uncertain in use are like conditions or limitations precedent.

Like law, if I infeoff one to the use of I. S. for years, the remainder to the right heirs of I. D. this is not executed in abeyance, and therefore not void.

Like law, if I make a feoffment to the use of my wife that shall be, or to such persons as I shall maintain, though I limit no particular estate at all; yet the use is good, and shall in the interim return to the feoffor.

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Contrary law, if I once limit the whole fee-simple of the use out of me, ugh and part thereof to a person uncertain, Rit shall never return to the feoffor by way of fraction of the use; but look how it should have gone unto the feoffor; if I begin with a contingent use, so it shall go to the remainder; if I enSed tail a contingent use, both estates are alike subject to the contingent use when it falleth; as when I make a feoffment in fee to the use of my wife for life, the remainder to my first begotten son; I having no son at that time, the reYer. S. mainder to my brother and his heirs: if my wife die before I have any son, the use shall not be in me, but in my brother. And yet if I marry again, and have a son, it shall divest from my brother, and be in my son, which is the skipping they talk so much of.

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So if I limit a use jointly to two persons, not in esse, and the one cometh to be in esse, he shall take the entire use; and yet if the other afterward come in esse, he shall take jointly with the former; as if I make a feoffment to the use of my wife that shall be, and my first begotten son for their lives, and I marry; my wife taketh the whole use, and if I afterwards have a son, he taketh jointly with my wife.

But yet where words of abeyance work to an estate executed in course of possession, it shall do the like in uses; as if I infeoff A. to the use of B. for life, the remainder to C. for life, the remainder to the right heirs of B. this is a good remainder executed.

So if I infeoff A. to the use of his right heirs, A. is in the fee-simple, not by the statute, but by the common law.

Now are we to examine a special point of the disability of persons as take by the statute: and that upon the words of the statute, where divers persons are seised to the use of other persons; so that by the letter of the statute, no use is contained: but where the feoffor is one, and cestuy que use is another.

Therefore it is to be seen in what cases the same persons shall be both seised to the use and cestuy que use, and yet in by the statute; and in what cases they shall be diverse persons, and ye VOL. III.—10

|

in by the common law wherein I observe unto you three things: First, that the letter is full in the point. Secondly, that it is strongly urged by the clause of joint estates following. Thirdly, that the whole scope of the statute was to remit the common law, and never to intermeddle where the common law executed an estate; therefore the statute ought to be expounded, that where the party seised to the use, and the cestuy que use is one person, he never taketh by the statute, except there be a direct impossibility or impertinency for the use, to take effect by the common law.

As if I give land to I. S. to the use of himself and his heirs, and if I. D. pay a sum of money, then to the use of I. D. and his heirs, I. S. is in by the common law, and not by the statutes.

Like law is, if I give lands to I. S. and his heirs, to the use of himself for life or for years, and then to the use of I. D. and his heirs, I. S. is in of an estate for life, or for years, by way of abridgment of estate in course of possession, and I. D. in of the fee-simple by the statute.

So if I bargain and sell my land after seven years, the inheritance of the use only passeth; and there remains an estate for years by a kind of subtraction of the inheritance or reoccupier of my estate, but merely at the common law.

3. Contr. the

fee simple re

maius, per Id.

C.J Hale, in

Weale v. Lower, Poll. 65, 66. and Gilb.

of infra. 2 Raym.

856.

But if I infeoff I. S. to the use himself in tail, and then to the use of I. D. in fee, or covenant to stand seised to the use of myself in tail, and then to the use of my wife in fee; in both these cases the estate tail is executed by this statute: because an estate tail cannot be reoccupied out of a fee-simple, being a new estate, and not like a particular estate for life or years, which are but portions of the absolute fee; and, therefore, if I bargain and sell my land to I. S. after my death without issue, it doth not leave an estate tail in me, nor vesteth any present fee in the bargain, but is a use expectant.

See Mr. Sun

den's remarks ed. Sugd. 162.

in Glb. V. & T.

Ans. 17.
1 And. 328.

So if I infeoff I. S. to the use of I. D. for life, and then to the use of himself and his heirs, he is in of the fee-simple merely in course of possession, and as of a reversion, and not of a remainder.

Contrary law, if I infeoff I. S. to the use of I. D. for life, then to the use of himself for life, the remainder to the use of I. N. in fee: now the law will not admit fraction of estates; but I. S. is in with the rest by the statute.

So if I infeoff I. S. to the use of himself and a stranger, they shall be both in by the statute, because they could not take jointly, taking by several titles.

Like law, if I infeoff a bishop and Gilb. ' 70 his heirs to the use of himself and his ed. Sugd. 15. successors, he is in by the statute in the right of his see.

And as I cannot raise a present use to one out 2 D

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Aw right, when Curse of possesweth in by the session; but it eciding of many warranties, actions, sns, and divers

The king upon his letters patent may declare a use, though the patent itself implieth a use, if none be declared.

If the king gives lands by his letters patent to I. S. and his heirs, to the use of I. S. for life, the king hath the inheritance of the use by implication of the patent, and no office needeth; for implication out of matter of record amounteth ever to matter of record.

If the queen give land to I. S. and his heirs to the use of the churchwardens of the church of Dale, the patentee is seised to his own use, upon that confidence or intent; but if a common person had given land in that manner, the use had been void by the statute of 23 H. VIII., and the use had returned to the feoffor and his heirs. A corpora tion may take a use without deed, as hath been said before; but can limit no use without deed.

mercommitted waste: me to stand seised and after to the use is ante dies; if he be punish the waste; sail not punish it. warranty, and I cove- An infant may limit a use upon a feoffment, to the use of my-fine, or recovery, and he cannot countermand or “......... and his heirs; if I be avoid the use, except he avoid the conveyance: any warranty is gone; contrary, if an infant covenant in consideration of e law, it is doubtful. blood or marriage to stand seised to a use, the use , and be infeoffed to is merely void. en to the use of myself L. D. in fee, I. S. dieth. ́aw, I cannot waive my the feoffiment; but if I Yet I am not remitted, bemy own aet: but I may waive action presently; for my by one of the savings in the other side it is to be e is a seisin to the use of and yet it is out of the ch is in special cases upon ver cestuy que use had reby course of common ever worketh; and thereCada were committed to a use, it is Coron law upon agreement. So paut to the use of another, it

If an infant bargain and sell his land for money, for commons or teaching, it is good with aver ment; if for money, otherwise; if it be proved it is avoidable; for money recited and not paid, it is void; and yet in the case of a man of full age the recital sufficeth.

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If baron and feme be seised in the right of the feme, or by joint purchase with case, de during the coverture, and they join in fol. 57. a fine, the baron cannot declare the use for longer time than the coverture, and the feme cannot declare alone; but the use goeth, according to the limitation of law, unto the feme and her heirs; but they may both join in declaration of the use in fee; and if they sever, then it is good for so much of the inheritance as they concurred in; for the law accounteth all one, as if they joined; as if the baron and feme declare a use to I. S. and his heirs, and the feme another to I. D. for life, and then to I. S. and his heirs,sus, the use is good to I. S. in fee.

See Gilb. Th.

449.

And if upon examination the feme will declare the use to the judge, and her husband agree not to it, it is void, and the baron's use is only good; the rest of the use goeth according to the limitation of law.

THE

OFFICE OF CONSTABLES,

ORIGINAL AND USE OF

COURTS LEET, SHERIFF'S TURN, ETC.,

WITH

THE ANSWERS TO THE QUESTIONS PROPOUNDED

BY SIR ALEXANDER HAY, KNIGHT, TOUCHING THE OFFICE OF CONSTABLES. A. D. 1608.

1. Question. WHAT is the original of constables? | and the petty constable is over the town or Answer. To the first question of the original of village. constables it may be said, caput inter nubila condit; for the authority was granted upon the ancient laws and customs of this kingdom practised long before the conquest, and intended and executed for conservation of peace, and repression of all manner of disturbance and hurt of the people, and that as well by way of prevention as punishment; but yet so, as they have no judicial power, to hear and determine any cause, but only a ministerial power, as in the answer to the seventh article is demonstrated.

As for the office of high or head constable, the original of that is yet more obscure; for though the high constable's authority hath the more ample circuit, he being over the hundred, and the petty constable over the village; yet I do not find that the petty constable is subordinate to the high constable, or to be ordered or commanded by him; and therefore, I doubt, the high constable was not ab origine; but that when the business of the county increased, the authority of justices of peace was enlarged by divers statutes, and then, for conveniency sake, the office of high constable grew in use for the receiving of the commandments and prescripts from the justices of peace, and distributing them to the petty constables: and in token of this, the election of high constable in most parts of the kingdom is by the appointment of the justices of the peace, whereas, the election of the petty constable is by the people.

But there are two things unto which the office of constables hath special reference, and which, of necessity, or at least a kind of congruity, must precede the jurisdiction of that office; either the things themselves, or something that hath a similitude or analogy towards them.

1. The division of the territory, or gross of the shires, into hundreds, villages, and towns; for the high constable is officer over the hundred,

2. The court-leet, unto which the constable is attendant and minister; for there the constables are chosen by the jury, there sworn, and there that part of their office which concerneth information is principally to be performed: for the jury being to present offences and offenders, are chiefly to take light from the constable of all matters of disturbance and nuisance of the people: which they, in respect of their office, are presumed to have best and most particular knowledge of.

The jurisdiction of the court-leet is to three ends. 1. To take the ancient oath of allegiance of all males above twelve years.

2. To inquire of all offences against the peace; and for those that are against the crown and peace of both, to inquire of only, and certify to the justices of jail delivery; but those that are against the peace simply, they are to inquire of and punish.

3. To inquire of, punish, and remove all public nuisances and grievances concerning infection of air, corruption of victuals, ease of chaffer, and contract of all other things that may hurt or grieve the people in general, in their health, quiet, and welfare.

And to these three ends, as matters of policy subordinate, the court-leet hath power to call upon the pledges that are to be taken of the good behaviour of the resiants that are not tenants, and to inquire of all defaults of officers, as constables, ale-tasters, and the like: and likewise for the choice of constables, as was said.

The jurisdiction of these leets is either remain ing in the king, and in that case exercised by the sheriff in his turn, which is the grand leet, or granted over to subjects; but yet it is still the king's court.

of his own seisin; future use to one bel no seised, but alte the execution of same reason an! same difference

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For matters of nuisance, disturbance, and urter, although they be not accompanied with ence and breach of the peace.

First, for pacifying of quarrel begun, the conle may, upon hot words given, or likelihood I reach of the peace to ensue, command them a the king's name to keep peace, and depart, and Curbear: and so he may, where an affray is made - part of the same, and 'keep the parties asunder, and arrest and commit the breakers of the peace, en if they will not obey; and call power to assist him for that purpose.

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For punishment of breach of peace past, the 4 nere law is very sparing in giving any authority to tution; constables because they have not power judicial, to be of and the use of his office is rather for preventing save that or staying of mischief, than for punishment of e bodies in offences; for in that part he is rather to execute neir place; the warrants of the justices; or when sudden The high matter ariseth upon his view, or notorious cirfreeholders, cumstances, to apprehend offenders, and to carry ext to the them before the justices of peace, and generally be incum- to imprison in like cases of necessity, where the ayer of a town, case will not endure the present carrying of the party before the justices. And so much for peace. Secondly, for matters of the crown, the office of the constable consisteth chiefly in these four parts:

ve the con

wance, but are geir office gratis ; Jecause it is but seep or maintain sers, for that every in their limits are

ay refuse to do their

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the said justice may
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again it is original, or
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1. To arrest.

2. To make hue and cry.

3. To search.

4. To seize goods.

All which the constable may perform of his own authority, without any warrant from the justices of the peace.

1. For, first, if any man will lay murder or felony to another's charge, or do suspect him of murder or felony, he may declare it to the constable, and the constable ought, upon such declaration or complaint, to carry him before a justice of peace; and if by common voice or fame any man be suspected, the constable of duty ought to arrest him, and bring him before a justice of peace, though there be no other accusation or declaration.

2. If any house be suspected for receiving or harbouring of any felon, the constable, upon com plaint or common fame, may search.

3. If any fly upon the felony, the constable ought to raise hue and cry.

4. And the constable ought to seize his goods, and keep them safe without impairing, and in ventary them in presence of honest neighbours.

Thirdly, for matters of common nuisance and grievances, they are of very variable nature, according to the several comforts which man's life and society requireth, and the contraries which infest the same.

In all which, be it a matter of corrupting air, water, or victuals, stopping, straightening, or endangering of passages, or general deceits in

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