CALTHORPES case case of a conveyance by a by estate execute with warranty to  several use in consideration of a marriage which shall he have six year  afterward between a cousin and heir of c and the daughter of another of the  party but which marriage never take place and c afterward marry and have issue  see more S c who put several point as determine therein sir Francis Calthorpe  knight be seize of diverse manor land and tenement in the county of Norfolk  and Suffolk and of the manor of Northmorton in the county of Berkshire have no  issue of his body and one Edward Calthorpe his cousin and heirapparent S the  son of his brother by indenture tripartite make between the say sir Francis of  the one party and the say Ed ware Calthorpe of the second part and one E lmond  Wyndham of the three part bear date the day of January the year of the reign  of king Henry do covenant with the say Edmond Wyndham that one Edmond  Calthorpe old son of the say Ed ware Caltharpe be then of the age of nine year  by the sufferance of God shall before the Feast of saint Michael the dyer a er  p Archangel in the year of our Lord dyer which be six year after marry with  Elizabeth the daughter of the say Edmond Wyndham if the say daughter will  hereunto agree and the say Edmond Wyndham make the like covenant with they for  his daughter if the say Edmond Calthorpe will hereunto agree and the charge of  the marriage and apparel to be at the several cost and charge respective of  their father in consideration of which say marriage to he have and solemnize  and other covenant bargain grant payment promise and agreement for and in  consideration of the say marriage in the say indenture afterward specify the  say sir Francis Calthorpe alone do covenant with the say Edmond Wyndham alone  that he before the Feast of saint Michael the Archangel then next ensue shall  make or cause to be make a good and sufficient estate in feesimple of the say  manor of Northmorton in the county of Berkshire and of all his land and  tenement in the county of Norfolk and Suffolk to Richard Southwell and other  and to their heir to such use and intent as in the say indenture thereafter  ensue fizz of the say land in Suffolk to the use of the say sir Francis and  dame Elizabeth his wife for term of their life and the long liver of they  without impeachment of waste and after their deceases and carnal copulation  have betwixt the say Edmond Calthorpe and Elizabeth Wyndham then to the use of  the say Edmond and Elizabeth and of the heir of the body of the same Edmond  lawful beget upon the body of the same Elizabeth and for default of such issue  to the use of the say Edmond in general tail and for default of such issue to  the use of Edward Calthorpe his father in general tail and for default of such  issue to the use of the right heir of the say sir Francis for ever and of part  of the premise in the county of Norfolk and also of as much land tenement rend  and service of the say manor of Northmorton as shall amount to the clear  yearly value of twenty mark to the use of the say sir Francis and dame  Elizabeth and the long liver of they and after their decease to the use of the  say Edward Calthorpe for term of his life and after his decease and carnal  copulation have betwixt the say Edmond Calthorpe and Elizabeth Wyndham then to  the use of the same Edmond and Elizabeth and of the heir of the same Edmond in  special dyer tail as be aforesaid and for default of such issue to the use of  the same Edmond in general tail and for default of such issue to the use of  the say Edward Calthorpe in general tail and for default of such issue to the  use of the right heir of the say sir Francis for ever and of the residue of  the land in Norfolk and of the residue of the say manor of Northmorton over  and beside the say twenty mark to the use of the say sir Francis and dame  Elizabeth and the long liver of they and after their decease then to the use  of the say Edward Calthorpe and of the heir of his body lawful beget and for  default of such issue to the use of the right heir of the say sir Francis for  ever and of the residue of the land in Norfolk to the use of the say sir  Francis only for term of his life without impeachment of waste and after his  decease to the use of the say Edward Calthorpe in general tail and for lack of  such issue to the right heir of the say sir Francis for ever item a proviso  that if it shall happen the say dame Elizabeth to die during the life of the  say sir Francis that then the say sir Francis may at his pleasure give or  bequeathe any of the premise not appoint for the jointure of the say Elizabeth  Wyndham to such wife or wife as he shall fortune to marry for term of the life  or life of such wife or wife so that the same do not exceed above the clear  yearly value of fourscore mark and another proviso also that he by dyer a er p  his last will may give or bequeathe the issue or prordts of some of the land  in Norfolk for term of twenty year for payment of his debt and performance of  his will item a covenant of the say sir Francis to the say Edward Calthorpe to  super all such land as shall descend or come to he as heir to sir Philip  Calthorpe immediate after his death to descend or come to the say Edward  Calthorpe and to the heir of his body lawful beget accord to the old entail  thereof have item a covenant of the say sir Francis to the say sir Edward  Calthorpe only to make further assurance of the premise within the space of  two year as by the say Edward Calthorpe and at his cost and charge shall be  devise accord to the true intent and meaning of the covenant aforesaid item a  further candescent and agreement between all the say party that the say  Richard Southwell and the other after such assurance make unto they of the  premise shall fr be dyer and after such estate make from thenceforth stand and  remain still seize without make after that any estate to the say sir Francis  Edward Calthorpe or Edmond Calthorpe or to any other person or person by  matter in deed or of record whereby any use right interest or title of the  premise shall be extinguish or alter except it be by the full consent of the  say Edmond Wyndham and in consideration of the say marriage to he have and  solemnize as be aforesaid as also for the other covenant and agreement in the  same indenture of the part of the say sir Francis to be perform the say Edward  Calthorpe shall by the indenture pay mark to the say sir Francis which be all  pay item a covenant of the say Edmond Wyndham to the say Edward Calthorpe to  pay he a hundred pound at a day for the same marriage and if the marriage take  none effect the same hundred pound to be repay again as by the indenture more  at large appear and accord thereto estate be execute by fine and recovery have  and suffer by the say sir Francis to the say Richard Southwell and the other  feoff for the say marriage and of for and concern the accomplishment of the  say manor of Northmorton before Michaelmas then next ensue in which fine there  be a warranty of the say sir f and of his heir against himself and his heir  which recovery and fine afterwar ds wet e aver by the counsel in evidence to  the jury to be to the use and behoofs contain in the say indenture and also  the payment of the mark but no annual value of the say manor of Northmorton be  express declare in evidence by the counsel to the jury nor mention of any  election make by any person of the say annual value of twenty mark and that  therefore the say feoff will stand seize of the estate aforesaid to the use  aforesaid until the statute of h S c of transfer use into possession be make  and after that the say dame Elizabeth die after who death sir f take his wife  one e Barney and have issue by her one W Calth who be now live and that after  this the say sir f die and the say e Calth and W Calth both survive he and  that no marriage or carnal knowledge be ever have between the say I dmond c  and e Wynd now whether the use of the premise always continue or be determine  so that the say sir W c as son and heir of the say f ought to enter and enjoy  the premise as a feesimple descend in possession from his father or that the  say Edward Calth and his heir in tail as in remainder after the decease of the  say sir f shall or may enter and enjoy they by virtue of the indenture fine  and recovery aforesaid or not be demurrer in law upon the evidence give dyer  upon the issue of not guilty in a ejection strong and it be argue at the bar  pro dyer a er p and contra but not at the bench but it seem that the case be  hard for William Calthorpe the son of sir f c and for the argument of the case  see these note following Firstly a plain intention of all the party and a hope  of a marriage to join the heir and heritage of the Calthorpes to the blood of  theWyndhams in consideration of which estate be execute to diverse use but to  the person who shall be marry no present use appoint until marriage and carnal  knowledge first have which be do the use to continue in their posterity and in  the collateral line of sir Francis c and not in his lineal succession these  estate and use never to be change alter or extinguish without the full consent  of Edmond Wyndham which be never obtain a proviso for a jointure of any wife  of sir Francis a for term of life only and another proviso to declare his will  for year money pay for remainder and no present possession the charge of  assurance pay by the cousin and heirapparent a consideration be a cause or  meritorious occasion require a mutual recompense in fact or in law contract  and bargain have a quid pro quo exchange annuity for counsel or service rend  service and tenor for demesne of land as frankalmoin frankmarriage homage  auncestral for warranty and acquittal common for cause of vicinage or service  demise of the wife cause matriquanli prceloGuti c also the mode of give ad  faciendum tale quid or at to make tale ad intention or Edward qzlentiore light  c ad efectaqn condition consideration executory future and continual and  consideration execute present do and determine on one part ferment to instruct  the feoff in a mystery or art the motor die before instruction the heir shall  not reenter e pound b pl grant of a office and for the exercise of it a fee  the office be determine the fee determine ante a pl m e b pl e a pl b pl a  usual or accustom attendance of a corodian upon the superior of the monastery  upon festival not perform determine the corody it be a reward for the  attendance but a lease of it to the superior suspend that exchange not execute  on each part at first be defensible e pl a portion of tithe grant by indenture  for ever without challenge or contradiction c and a annuity grant for the  portion aforesaid c also a composition by the ordinary between two abbot for  tithe in variance the one to have the tithe in feefarm the other to pay annual  S as long as he shall have and perceive they the tithe be refuse for the two  dyer yet the S remain difference when the consideration precede the gift and  contra and when it be express by one man and in a deed and when by another man  in a deed c Elizabeth h pound b also to have a way for my life I give a  annuity of S without limit how long the rend shall last that be only during my  life c also a termor by indenture in consideration of pound to be pay at the  next midsummer grant his term he fail of payment c he may not rehave his term  be no condition therein the like be h pl of a bargain of cesiqy rae use no day  appoint for the money the use pass clear and the vendor put to his action for  the money also a rehearsal of a consideration pass whether it be true or false  do not dissolve the gift as because he serve I in the war abroad I have give c  although it be false be not material by Bracton in quodis donationuqn even in  the case of the king accord to Fitzherbert e livre in the end of a traverse  fol and in Feb Elizabeth the title be determine by the award of the two chief  justice and a annuity of pound in tail and also of pound during life to the  sheltons the father and son dyer b er p and pound in money be give by the  Calthorpe lineal heir for redemption of the title of Shelton one of the coheir  of Edward c c HUMERESTONS case h convey by Latin deed senior bolero of his  body and afterward levy a fine to the same use which be do to the old child  Puero shall now be construe of either sex and a elder daughter shall take  before a young son the manor of Humfreston be convey by one W Humfreston to  make his wife a jointure by a deed in Latin make by his recoverer to himself  and to his wife for term of their life the reversion senior bolero of the body  of the say W and the heir of his body lawful beget remainder thereof to the  husband in tail general remainder over to one Kinersley in fee c and afterward  by indenture between he and the say Kinersley in English he covenant that he  and his wife shall levy a fine to b and c to the use of himself and his wife  for term of their life remainder to the use of the old child of the say  William and of the heir of the body of such old child remainder over as before  and the fine be levy accord and afterward the wife die without issue the  husband take another wife and by her have issue a daughter the old and a son  the young which of the two shall have the remainder be demurrer in law in b r  and argue this term and in the term of next easter where by the opinion of  Southcote and Wray chief justice the daughter and not the son shall have the  remainder for that be the intention of the ancestor as they think although  bolero in Latin be intendable rather of the male sex than of the female and  yet many author and writer in the law have take the word indifferent for  either gender c and the old child be the daughter c but gawdy e contra