proferentem accipienda sunt Bacon Eliz. f. 11. As if I demise omnes boscos meos in villa de Dale for years this passeth the soile 14. H. 8.28 H. 8. Dyer 17. And if I sowe my Land with Corne and let it for for yeares the Corne passeth to my Lessee And if I grant ten pounds rent to Baron and Feme and if the Baron dye the Feme shall have three pounds rent because these words rest ambiguous whether I intend three pounds by way of addition or three pounds by way of deduction out of the rent of ten pounds it shall be taken strongest against me that it is three pounds addition to the ten pound of which more hereafter So Coke fol. 303. b. Ambiguum placitum interpretari debet contra proferentem An ambiguous Plea shall be taken strongest against the pleader for every one is presumed to make the best of his own Case and Coke l. 10. f. 50. Ambigua responfio contra proferentem est accipienda the Bishop of Sarums Case vide ibidem In obscuris secundum magis similius est judicandum vel quod plerumque inspici solet Regula I. C. and Coke l. 4.13 14. Sensus verborum ex causa dicendi accipiendus est sermones semper accipiendi secundum subjectam materiam In obscure and dark sayings we are to judge according to that which is most likely and which is wont to be and the sense of the words is to be collected from the cause of the speech and to be taken according to the subject of the matter which rule seemeth to qualify and moderate the other two vide ibidem S. Cromwells Case as first in words the Plaintiff bringeth an action upon the case for calling of him Murderer to which the Defendant said that as he was speaking with the Plaintiff concerning unlawfull hunting the Plaintiff confessed that he had killed diverse Hares with Engins to which the Defendant answered that he was a murtherer innuendo a murtherer of Hares and it was resolved that the justification was good for upon an action of slander the likeliest sense of words is to be taken and collected out of the occasion of the speech Coke ibidem And so in Deeds as if I have a free Warren in my land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren 32. H. 6. which is the more likely meaning for otherwise the Lessor would have excepted the Warren Vnivocum denoteth words of a certaine and distinct signification and expresseth the thing cleerly without any obscurity or Ambiguity of which the Law taketh especiall notice for that certainty in all contracts and conveyances is the cause of quiet and setlement of estates but incertainty is the author of variance and dissention from whence we have these notable grounds and maximes Misera est servitus ubi jus est vagum Coke l. 5. f. 42. a. God forbid that the inheritances of men should depend upon incertaines and it is a miserable servitude where the Law is wavering and therefore Ployd f. 28. a. In every Common-wealth it is necessary and requisite that things should bee certainely conveyed for certainty engendreth repose and incertainty contention The occasions of which contention our Law foreseeing hath prevented and therefore ordained that certaine ceremonies should be used in the transmutation of things from one man to another and namely of Frank-tenements which are of greatest estimation in our lawes to know the certaine times when things do passe and therefore in every Feoffment the Law ordeineth that livery and seisin shall bee made and in every grant of a reversion or rents that attornement should be made which are points certaine containing time wherefore it is well observed by Sir Edward Coke in his Preface to the second part of his Reports that in all his time there have not beene moved in the Courts of Justice of England two questions touching the rights of descent escheats or the like fundamentall points of the common-Law so certaine sure and without question are the principles and grounds thereof That as Sir John Davis in his preface there is no art nor science which standeth upon discourse and reason which hath her Rules and Maxims so certaine and infallible and so little subject to diverse interpretations as the common Law of England Whence Sir Edw. Coke is bold to pronounce that the Common Law of England is not incertaine in the abstract but in the concrete and that the incertainty thereof is hominis vitium non professionis the imperfection of man and not of the profession and lib. 6. f. 43. a. in particular blameth hee the subtile inventions imaginations of men in the practise of uses which have introduced many mischiefs inconveniences contrary to the ancient common law which hath certain rules to direct the estates and inheritances of men and therefore is it without comparison better to have Estates and Inheritances directed by the certaine rule of the common Law which harh beene the ancient true and faithfull servant to this Common-wealth then by incertaine imaginations and conjectures of any of those new inventors of uses without any approved ground of law or reason Coke l. 6. f. 43. a. And therefore in all cases law and equity will that incertainty bee avoided as the author of contention and that there bee an end of all controversies according to equity and right which is the finall intention of all Lawes Coke l. 8. 53. And Coke l. 1. f. 85. a. The Judges ought to know the intention of the parties by certaine and sensible words which are agreeable and consonant to the rules of Law as if Land bee given by deed to two to have and to hold to them and haeredibus it is void for the insensibility and incertainty and though it hath a clause of warranty to them and their heires that shall not make the first wordes which are incertaine and insensible to bee of force and effect in Law although his intent appeareth but his intent ought to bee declared by words certain and consonant to Law So Coke comment f. 20. b. If a man letteth Lands to A. for life the remainder to B. in taile the remainder to C. in forma praedicta the remainder is void for the incertainty And therefore Ployd f. 272. a. giveth this ground that every contract sufficient to make a Lease for yeares ought to have certainty in three limitations in the beginning of the terme in the continuance and in the end of the same all which ought to be known at the beginning of the Lease and the Lease that wanteth them Mr. Brown said is but bibble babble vide ibidem Fullers case and Coke l. 6. f. 35. the Bishop of Bathes case Ployd f. 14. a. If I give all my mony in my purse to I. S. hee cannot have an action for it unlesse hee alledge the certainty of it so as without certainety the action is not maintainable according to
holdeth his Lands and things by the Lawes of the Land wherein hee liveth and this commonly called the law of proeprty Nihil dat quod non habet Arist nemo potest plus juris in alium transferre quam ipse habet Coke com f. 309. b it is a common erudition in the Law that no man can grant that hee hath not Perkins f 15. for that is requisite that he who by his contract shall make another possessor of any thing should bee the proâ—rietor of the thing it selfe otherwise his contract is void Ployd f. 432 b. as if I possessed of an horse sell the Horse upon condition to another that he pay to mee at the feast of Christmas forty shillings for it and before the said feast I sell the horse to another and after the feast the first Vendee failes of payment by which I reseise the horse the second Vendee shall not have the horse for at the time of the second contract I had neither interest nor property nor possession of the horse but onely a condition which is not sufficient to make me able to contract for the property and possession therefore it is meerely void Ployden So if a man grant a rent charge out of the Mannor of Dale and in truth he hath nothing in the Mannor of Dale and after purchaseth the Mannor of Dale yet hee shall hold it discharged Perkins H. 15. So if one not seised of Lands maketh a Lease to another it is a good Plea for the Lessee to say that the Lessor had nothing in the Tenements at the time of the Lease Litt. and the reason of this is for that in every contract there must be quid pro quo for contractus est quasi actus contra actum and therefore if the Lessor had nothing in the land the Lessee hath not quid pro quo nor any thing for which he should pay his Rent and in that case he may plead that the Lessor non dimisit Coke Com. ibidem f. 41. b. vide ibidem plura If the Conusee of a Fine before any Attornement bargaineth and selleth the Signiory to another the Bargainee shall not distraine because the Grantor could not distrain for no man can transfer more right to another then he himselfe hath Coke Com. 309. b. Coke l. 6. f. 57. b. He that hath no seisin in the Land charged cannot give seisin of Rent vide plura Bredimans for no man can give that he hath not The King pardoneth one for making a bridge this is onely good for the fine and he must make up the Bridge because the Kings Subjects have interest in it 37. H. 8.4 Da tua dum tua sunt post mortem tunc tua non sunt Ployd 280. a. when one hath property in goods the property cannot be in him no longer then he liveth for after his death the goods belong unto another Nemo videtur rem amittere cujus propria non fuit Reg. I. C. no man can loose that of which he hath no property and therefore in a Replevin if the Defendant claim property the Sheriff cannot proceed for it is a rule in Law the property ought to be tryed by writ and therefore in this case where the tryall is by plaint the Plaintiff may have a writ de proprietate probanda directed to the Sheriff to trye the property and if thereupon it be found for the Plaintiff the Sheriff shall make deliverance Coke Com. f. 145. b. F. n. b. f. 77. If A. endict B. for stealing of Horses or other goods he must say de bonis catallis cujusdam A. For if there were no property there could be no stealing or injury for nemini vim facere videtur qui suo non alieno utitur Reg. I. c. Nemo reditum invito domino percipere possidere potest Coke Com. 303. b. no man can receive or possesse another mans Rents against the will of the Lord as if one hold of me by Rent which is service ingrosse and another which hath no right claimeth the rent and receiveth it of my Tenant by coertion of distresse or otherwise yet by the payment of my Rent to a stranger I cannot be disseised or ousted without my will or election but that I may distrain my Tenant for the Rent or have an assize against the â—ernor Lit. for a man cannot be disseised of a a Rent-service in grosse Rent-charge or Rent-seck by Attornment or payment of Rent to a stranger but at his election for the rule of the Law is no man can receive or possesse an other mans rent against his will Coke ibidem Quod meum est id amplius meum esse non potest Coke Com. f. 49. b. And therfore if lessee for years enter he is in actuall possession and then Livery cannot e made to him that is in actual possession whereby the Franke-Tenement or fee may inure to him in the remainder for that which is once mine cannot be more mine ibidem Thirdly From the Anteprecedents Aequivocum and Univocum AEQuivocum denoteth words of ambiguous and many significations which as Boetius signifies nothing nisi ad quasque res secundum voluntatem significantis applicetur unlesse they be applyed to the thing according to the will of him that declareth or expoundeth them of which the Law taketh notice and giveth these grounds and maximes Nobiliores benigniores presumptiones in dubijs sunt praeferendae Reg. P. C. And Coke l. 4. f. 13. b. Benignior sententia in rebus generalibus dubijs est praeferenda In doubtfull speeches and sentences the more favorable presumption and opinion is to be perferred As if one doth charge another that he hath forsworne himselfe by the Law it is not actionable for it may be he hath forsworne himself in usuall conversation but an action is onely maintainable against him that hath forsworn himself in Court of Record so ibidem f. 21. An Action upon the case was brought for these wordes for my Lands in Dallinson they seek my life adjudged not actionable because he may seek his life upon just cause which are the more favorable constructions So verba accipienda sunt in meliori sensu Hub. f. 106. Coke l. 4. f. 13. Wordes are to be taken at the best for the speaker though some of them cannot stand with that construction As thou art a Theefe and hast stolen a Tree it shall be adjudged of a Tree standing not felled which is not actionable But as it is said there in Hubberd 106. This rule holdeth not in Deeds and Pleas for in those words are taken more strongly against the speaker of which this reason may be given because commonly words in common language proceed of a sudden from choler and heat whereas words in Deeds and Pleas are grounded upon mature deliberation and consideration and therfore in Deeds this is a general ground Ambiguum pactum contra venditorem interpretandum est Reg. I. C. and Ambigua verba contra
making of the banks of a River to be contributory to it for Qui sentit commodum c. Coke l. 7. f. 39. b. If a man grant a Rent-charge for life out of his land and the rent is behind and the Grantor enfeoff A. and the rent is behind in his time and after A. enfeoffeth B. and the rent is behind in his time and then the Grantee dyeth the Executor shall have an action of debt against every of them for the rent behind in his time for qui sâ—ntit commodum c. and so was it holden in Ognels case l. 4. f. 49. a. 50. Barons uses f. 27. If a man bind himself and his Heires in an Obligation or do covenant in writing for him and his Heires or do grant an annuity for him and his Heirs or do make a Warranty of land binding him and his Heires to warranty in all these cases the Heir after the death of the Ancestor is by Law charged with this Obligation Covenant Annuity and Warranty yet with these three cautions 1. That the party must by speciall name bind himself and his Heires 2. That some action must be brought against the Heir whilest the land or other inheritance rested in him unaliened except the land was conveyed away by fraud and one purpose to prevent the Suit intended against him And 3. That no Heire is further to be charged then the value of the land descended unto him from the same Ancestor c. nor to be sold out-right for the debt to be kept in extent at a yearely value untill the debt or damage be run out Neverthelesse for his false plea shall he be charged of his own lands for this Deed of his Ancestor and the reason of this charge is Qui sentit commodum sentire debet incommodum onus vide ibidem plura Dilationes sunt in lege odiosae Ployd f. 75. b. Delaies are tedious in the Law and therefore doth the Law favour Assise because they are the more speedy Suits the Law hath given as the Statute of W. 2. c. 25. in its recitall saith Et quia non est aliquod breve in Cancelaria per quod quaerentes habent tam festinum remedium sicut per breve Nove disseisinae And therefore because it is the more speedy Suit the Law the more greatly favoureth it ibidem For for speed to the Plaintiff the Jurors shal have the view before appearance by the words of the Writ And though Warranties are favoured in Law yet none shall vouch in Assise any one if he be not present and that is for the speed of the Plaintiff No. Nat. br f. 178. And a protection will not defend the party against an assise but assises are accepted by the words of protection p. 2. H. 6. 42. Bâ— protection 53. And all things and pleas which go in retardation or abatement of Assises are esteemed odious and therefore exceptions which will abate other Writs shall not abate Assises if it be so that there is a Disseisor and a Tenant for it is the substance of the Suit and therefore the misnaming of one of the Defendants shall not abate the assise if there be another Disseisin and Tenant and yet the Writ was alwaies false Ploâ—d f. 98. a. b. And if the Tenant plead Joynt-tenancy with a stranger not named although the Plaintiff confesse it yet it shall not abate his assise but for it onely for the remnant the Writ and Plaint shall stand in his force and yet the Plaint was altogether false and if there be a Disseisor and Tenant for any part then it sufficeth for other verity in the Writ or Plaint the Law requireth none and to say that one named in the Writ is dead before the Writ purchased or that there was never any such in rerum natura is alone and shall be adjudged no plea in abatement of the Writ but if there be another Disseisor and a Tenant the Writ shall be good against them Ployd f 90. a. vide ibidem plura And though in actions reall as the weight of the cause requireth there are longer times given in their proceedings then in personall actions yet it appeareth by Fortescue de lib. l. A. c. 5. 3. that they are not too long nor admitted without just cause Crebro enim saith he deliberationibus iuâ—icia matur scunt sed in accelerato processu numquam And as Hobert saith f. 133. Festinatio jâ—stitiae est nâ—verca infortunii Festination of Justice is the step-mother of mischief but many times by deliberations Judgments grow to ripenesse but in over hasty processe never yet the Demandant shall come to a finall end by these actions which he shall never do by prosecution of personall actions for the tryall of a Freehold or Inheritance Co. ep ad lectorem lib. 8. And in all cases the Law favoureth speeding of mens Causes and hateth delayes as 3 H. 6. 15. b. He that pleadeth a Record in delay as to prove the Plaintiff excommunicate must have it ready to shew but otherwise it is if he plead in bar In dilatory pleas both Defendants must joyne 12 H. 7. 1. A Plea in bar that is dilatory must be good to every common intent 8 H. 7. 9. One who is in Court ready to joyn with the Defendant may do it without processe As the Vouchee the Plaintiffs Lessor being prayed in aid of when the Defendant in a Replevin avoweth upon him or the Mesne when the Lord Paramount voweth upon him But Joynder in aid cannot be by an Attorney without processe 2 H. 6. 1. b. One who is a Debtor to the King of Record in the Exchequer if he be seen in the Court may be brought in to answer 2 H. 6 4. b. An assise of Darrein presentment was brought and it was pleaded in abatement of the Writ that the same Plaintiff had brought a Quare impedit against the Defendant for the same Church and the Court was of opinion that it was a good plea for the Quare impedit is of an higher nature for the right and possession and the Statute of W. 2. l. 5. saith that it may be in the election of one to have an assise of Darrein-presentment or a Quare impedit ergo not both And it was adjudged p. 15 Jaco that one cannot have two Quare Impedits of one Church for one avoidance Hutton f. 403. When the Law giveth a man severall remedies for a thing he cannot have both of them together as Littleton saith for then he should recover one thing twice which should be a double charge and a double vexation to the Defendant Co. Com. 145. a. as if I grant by Deed a Rent-charge to another the Grantee hath election to bring a Writ of Annuity and charge the person onely to make it personall or to distrain upon the land and make it reall but he cannot have both after the Grantee hath determined his election but this determination of election must be by action in
generall words imply no certainty and with that accordeth 21. E. 4. If a man be bound to be nonsued in all Actions that he hath against him in the Common Bench he may say that he hath no action therein otherwise if the condition be particular to wit that he shall be non-sued in a Formedon c. so as that it appeareth that generall words imply no certainty neither do they conclude any person to say that he hath nothing there vide ibidem plura Cok. lib. 8.78 a. Bospols Case In an arbitrament when the submission is generall of all Actions and Demands c. that may well stand with the generality of the words that there was but one cause depending in controversy between them For generall speeches imply no certainty and the awaâ—d for one is good notwithstanding the generality of the words for though there were many matters in controversy yet if one onely was made known to the Arbitrator he may make an award of it For the Arbitrator is in place of a Judge and his office is to determine secundum alligata probata the duty of the parties which are greived and know their particular greifes is to make known the causes of controversy to the Arbitrator for they are privy to them and the Arbitrator is a stranger and every one is to do that which lyeth in his knowledge but when the condition is in speciall and with a proviso and condition that an award shall be made of the premises or words which amount to so much there the Arbitrator ought to make Arbitrement of all or else the award is void Generalibus semper specialia derogant Reg. f. c. Derg 180. Quando charta continet generalem clausulam posteaque descenâ—it ad verba specialia quae clausulae generali sunt consentanea interpretanda est charta secundum verba specialia f. 134. b. in Edward Althams Case Which rule is almost word for word put and agreed of by both parties In. 7. E. 3. f. 10. Margery Mortimers Case to wit where a Deede speaketh by general words and then descendeth to special words if the words special agree with the words general the deed shall be understood according to the words speciall As if a man grant a rent in the mannor of P. to be taken in an hundred Acres of Land parcell of that Mannor with a clause of distresse in those hundred Acres the Rent shall issue out of the hundred Acres onely and the generall words shall be construed according to the words speciall so if a man grant a Rent and go no further those generall words shall create an estate for life but if the Habâ—ndum be for years that shall qualify the words generall 7. E. 3. So if a man give Lands to one and his Heirs Habendum to him and the Heirs of his body He shall have onely an estate tayle and no fee expectant for the Habendum qualifieth the generall words precedent Ployd f. 541. a. A man maketh a Feoffment by Deede to one to have and to hold to him and his Heirs and if it happen that the feoffee dyeth without heire of his body that then the Land shall revert The generality of that gift to him and his Heires shall be corrected by the speciall branch after so as the Donee shall have but an estate tayle 13. R. 2. in Formedon Dyer 261. b. A man seised in fee deviseth all his Lands in one village and in one of the two Hamlets by name and there were two Hamlets in the said Village The opinion of divers Justices was that none of the Lands in the other Hamlet should passe for it is intendable that the intent and meaning of the devisor was that nothing more should passe then what he had expressed A. acknowledgeth a fine of the mannor of P. with an advowson and regrants the mannor with the Appurtenances the advowson shall not passe Temp. E. 1. F. title grants Ployd 173. b. If I give or lease all my Lands to one and stay there he shall have all my Lands in England but if I say further in the manner of Dale there it is now restrained but if the specialty limiteth a thing which is void and so appeareth it is otherwise as if I lease to one all my Lands in Dale which I have by descent of the part of my mother and in truth I have no Lands in Dale which I have by descent of the part of my mother if the Lessor have other Lands in Dale he shall not have those Ployd 160. a. A man giveth Lands to two Habendum to one for life and after his decease to the other and his Heirs the one shall have the entierly for his life onely notwithstanding the Joynture given in the Premisses by the better opinion in terme M. 8. E 3.427 Generalibus sempâ—r specialia insunt Reg. f. c. Specialls are alwayes contained in the generals and the universalls allwayes comprehend the particularâ— Ployd f. 68. a. The plurall number containeth the singular and more and therefore was it resolved by all the Judges That a pretensed right and title was within the penalty of the Statute of 32. H. 8. for the buying of pretensed rights and titles for pretensed rights and titles in the plurall number did containe a pretensed right and title in the singular number And whereas the Statute of 5 R. 2. c. 5. forbiddeth that none make entry into any Lands or Tenements unlesse in case where entry is given by the Law yet if one enter into a Tenement he shall be punished though the Statute speaketh in the plurall number and likewise whereas the Statute of 1. H. 5. speaketh of false Deeds in the plural number yet if one bring but one false Deed he shall be punished by the Statute as it is holden in many Bookes Ployd f. 467. b. The Statute of Gloucester giveth an Action of Waste against him which holdeth for years which is spoken in the plural number yet may it be taken for him which holdeth for a year or half a yeare vide ibidem plura Generalis clausula non porrigitur ad ea quae sunt specialiter comprehenfa Coke l. 8. 118. b. It is a ground and maxime in the Law that a generall clause is not extended to those things which are specially comprehended Doctor Bonhams Case by the Statutes of 10 14. H. 8. it was enactd that no man should exercise the faculty of Physike within the City of London or within seven miles of the said City unlesse he be admitted thereunto by the President and Colledge of the faculty of Physike and there is another speciall clause contained in the said Acts that any who evilly and not well exercise the said faculty c. shall be punished by Fine and imprisonment c. and it was adjudged that the said generall clause that none should exercise the said faculty of Physike unlesse he be admitted c shall not be extended to the speciall clause
renunciaverit amplius repetere non potest n. f. 139. a. As a Retraxit is a bar of all other actions of the like or inferior nature for he which once renounceth his action can no more renew it It is a generall rule that non-suite before appearance is not peremptory in any case for that a stranger may purchase a writ in the name of him who hath cause of action and regularly a non suit after appearance is not peremptory but that he may commence an action of like nature againe for it may be he hath mistaken something in that action or was not provided of his proofes or mistaken the day or the like But yet for some speciall reasons non-suit in some actions is peremptory as in a quare impedit if the Plaintiff bee non-suit after apparance the Defendant shall make a title and have a Writ to the Bishop and this is peremptory to the Plaintiff and is a good bar in another quare impedit and the reason is because the Defendant had by the judgement of the Court a writ to the Bishop and the incumbent which commeth in by that writ shall never be removed which is a flat barre as to that presentation and for the same law and upon the same reason so it is in the case upon a discontinuance Coke com f. 139. a. vide ibidem plura Actio personalis moritur cum persona a personall action dieth with the person Went. off of executors f. 1. 97. As if a keeper of a Prison suffereth one in execution to escape and dieth no action lyeth against his Executors If Lessee for yeares doth wast and dieth an Action of wast lyeth not against his Executor or Administrator for wast done before that time Coke com f. 53. b. so if the tenant doth wast and he in the reversion dieth the heire shall not have an Action of wast for the wast done in the life of his Ancestor nor the master of an Hospitall or a parson for wâ—st done in the life of the predecessor ibidem The Lessor covenants to pay quit rent during the terme and dieth his Executors shall not pay it because it is a personall covenant in the Lessor onely Dier 114. Yet if there be three copartners and they Lease the land and one of them die and hath issue and the Lessee commit wast and one of them die and hath issue the Aunt and the issue shall joyne in an Action of wast and the issue shall recover one moyety of the Land wasted and the Aunt the other notwithstanding that actio injuriarum moritur cum persona But in favorabilibus magis attenditur quod prodest quam quod nocet in indifferent and favourable things that which profiteth is more respected then that which hurteth Relatio tunc fieri non debet si per eam actus destruatur Reg. I. c. Decius 363. Quando dispositio referri potest ad duas res ita quod secundum relationeÌ„ una vitiatur secunduÌ„ aliaÌ„ utilis sit tunc facienda est relatio ad illam ut valeatdispositio semper ita fiat relatio ut valeat dispositio C. l. 6. f. 76. b. a. A relation then ought not to be when by it an Act is destroyed As in the statutes of 32. and 34. H. 8. concerning Wills whereof is provided that every person having any Mannors Lands c. holden in capite shall have full power c. to dispose by his last will in writing or otherwise by any Act or Acts lawfully executed in his life two parts of the same Mannor c. for the advancement of his wife preferment of his children and payment of his debt or otherwise at his will and pleasure any Law statute c. those words or otherwise at his wil pleasure have reference relation only to the last wil not to the acts executed for otherwise none might have devised two parts but onely for the advancement of his wife and preferment of his children or payment of his debts which is not the intention of the Act but that he may devise two parts to whom he will so that the third descend and it was in vaine to referre those words or otherwise at his will and pleasure to Acts executed for he can do that without any authority given to him by that act And therefore when the disposition may be referred to two things so as according to the relation one of them may be destroyed and according to the other shall be commodious then the relation is to be made to that that the disposition may be of force and alwayes the relation is so to be that the disposition may availe in Sir G. Cursons case So Coke l. 3. f. 28. b. Butler and Bakers case relation is a fiction in law to make a nullity of a thing from the beginning to a certaine intent which in truth had being and the rather for necessities sake ut res magis valeat quam pareat As if a man make a gift in taile to Baron and feme and afterwards grants the reversion of those Lands and since the Baron dies and the feme to have her dower waiveth and disagreeth to the estate taile now in regard of her it is a nullity of the estate from the beginning and to such an intent the Law faineth that the estate was onely made to the baron but as to the grant of the reversion that is a collaterall Act and her refusall shall not have such relation for she may be endowed though that estate stand and so no necessity and therefore without necessity ut res magis valeat the Law will not faine any nullity but in a destruction of a loyall estate vested the law will never make any fiction vide ibidem plura So relation shall make things have been as if as if they never had been 1. H. 7. 16 The husband disagreeth to a Feoffement made by his wife it is void from the beginning so that he may plead ne infeosse pas so 14. H. 8. 10. A devise is that the Executors may sell land c. when they sell all meane charges made by the heire in the interim shall be avoided by relation to the time of the death of the Testator so 14. H. 8 18. I disseise A. to the use of B. the dissiesee releaseth to mee and then B. agreeth with the disseisee this agreement by relation shall be as if he had agreed before the release and so shall defeat it Jurors alien their Lands away between the teste of the Writ of attaint and judgement yet they shall be charged to the King for the estreptment by relation 22. E. 3. 16. Caufe of Assise brought for rescuing a distresse taken for rent and then an Office is found which entitleth the King who seiseth the Land and then an Ouster le maine is sued the Assise is gone for ever because the King shall be said to be in possession at the time of the rescous
incurreth for which day the husband maketh an acquittance supposing the receit of the rent for the said yeare last past and notwithstanding that acquittance his servant distraineth for the rent of half a yeare of the first year being behinde but though the last arrearages before the last terme were due to the feme dum sola fuit yet Harper and Dyer were of opinion that all the arrearages were discharged by the acquittance of the last terme because it is an antient principle That all the arrearages are discharged by the acquittance of the last terme and we ought not to deny principles Coke l. 10. f. 40. a. No man ought to dispute against recoveries the legall pillars of common assurances because we are not to dispute against principles and which St. Germins Doctor and Student c. 26. approveth to binde both in Law and conscience and by the Statute of 23. Eliz. C. 4. That for the avoyding of the dangers of assurances of Lands and the advancement of common recoveries it is provided that any common recovery shall not be avoided for any want of forme in words and not in matter of substance And Sir James Dyer then chiefe Justice did with great gravity and some bitternesse reprove an utter Barrister who rashly inveyed against common recoveries not knowing the reason and foundation of them and said that he was not worthy to be of the profession of the Law who durst speake against common recoveries which were the sinews of assurances and inheritances and founded upon great reason and authority Mary Portingtons Case vide ibidem â—lura Coke Com. f. 343. a. Principium est quasi primum caput a principle is as it were the first head from which many cases have their beginning which is so strong as it suffereth no contradiction and therefore is it said in our Books that ancient principles of the Law ought not to be disputed 11. H. 4. 9. 2. As that of every Land there is a fee-simple and that every Land in fee-simple may be charged in fee by one way or other Littleton ibidem Cessante statu primitivo cessat derivativus Coke l. 8. f. 34. a. The primitive state ceasing the derivative doth cease As if Tenant in taile maketh a lease for lives according to the Statute of 32. H. 8. c. 28. and then dyeth without issue the lease being derived out of the Estate taile shall not continue longer than the Estate taile against the opinion in 33. H. 8. 48. Dyer which was granted by the whole Court Derivativa potestas non potest esse major primitiva Noy max. f 4. A derivative power cannot be greater than it fâ—om which it is derived As the Attorny of one that is disseised cannot make claime of the Land it the disseisee durst have gone to the Land Littleton The Bayliff of a disseisor shall not say that the Plaintiff never had any thing in the Land for the Master himselfe shall not have that Plea because he is not Tenant of the Free-hold 28. Ass Pl. 4. The Servant shall be estopped to say the Free-hold is his Masters by recovery against his Master though the servant himselfe be a stranger to it for he shall not be in better condition tâ—an he whose right he claimeth 2. E. 4. 16. He that gaineth a thing on high shall neither have gaine nor losse thereby Noy Max. f. 11. As if one Joyn-tenant maketh a lease of his Joyntee and dyeth the heire which surviveth shall have the reversion of his Joynture but not the rent because he cometh in by the first Feoffor and not under his companion Dyer 187. So when the Husband is Lessee for years in the right of his wife reserving a rent if he dyeth the wife shall have the residue of the terme but not of the rent ibidem An executor recovereth and dieth intestate Administration of the goods of the Testator is committed to I. S. I. S. shall not sue execution upon this recovery Dower cannot be assigned reserving a rent or with a remainder over for shee is in from the husband and not from him who assigneth Dower Finch f. 13. Quod dignius est prius est minus digno The Law preferreth every thing according to its worthinesse Ployd f. 169. a. and therefore is every thing placed in Writs by the rule of the Register according to its dignity as the Messuage is placed before Lands the Land before Meadow and the Meadow before Pasture and the like and this dignity is taken from necessity for to have an house to inhabite and to defend his body from tempest and violence of weather is more necessary than to have Land to plow it for bread and also to have Land for bread is more necessary than to have Meadow for Hay to feed Cattell and likewise to have Meadow for Hay which will serve all the yeare is more necessary than Pasture c. ibidem And so in the Register the entire thing which is more worthy shall be demanded before the moyety part or parts As in a Replevin if it be of two beasts the one quick the other dead the living thing shall first be demanded Register Quod prius est verius est quod prius jure est potius est tempore Coke Com. f. 347. b. As in a remitter the Law preferreth the first and antient right before the latter and a sure right though it be little before a great estate by wrong which jumpeth with the rule of the Civill Law Quoties duplici jure defertur alicui successio repudiato novo jure quod ante defertur superest vetus Paulus 17. quest As if Tenant in taile discontinueth the taile and after disseiseth the discontinuee and so dyeth seised This is a remitter to the tenant in taile because the Law shall put and adjudge him to be in by force of the tayle which is his antient title for if he should be in by force of the descent then the discontinuee may have a writ of Entry sur disseissin in the per against him and recover the tenement and his damages but being in by force of the taile the title of the discontinuee is quite nullified Qualis causa talis effectus Ployd f. 292. a. Things are construed according to that which is the cause thereof as if an Executor assigne Auditors to one who was accountant to the Testator and the Auditors finde him in arrearages the Action of debt which the Executors shall have shall be in the detinet onely for the debt shall be in them as Executors and have respect to the foundation and cause 11. H. 6. f. 16. by Paston and Newton So if one have a villaine for years as Executor if the villaine purchase Land and the Executors enter the Land shall be to the use of the Testator and it shall be assets in his hands because the villain who was the cause of it was to that use Ibidem Pas 32. H. 8. E. villenage 146. Ployd f. 524. 525.
Ward within Lond. but God forbid but that the Jurors may find assets by descent in any other county within England for the Law is that the Plaintiff in such case shall have execution of all the Lands the heire had and peradventure he might have Lands in diverse counties and therefore though a place be named for necessity sake yet the Jurors may find all that which by law may be chargeable in such a case in whatsoever City and County it lyeth and so was the principall case resolved after in 10. Eliz. though it be not reported there and with it agreeeth 10. H. 6. 13. And the conceit of Brook 2. Mar. Attaint 104. that the jurors of one county are not compellable to find transitory things in another county was altogether denyed by the whole Court for they are bound under the paine of attaint to finde assets in any other county whatsoever for it may be that the executors have goods of the Testators in divers severall counties and that in none of those counties had by him there is assets vide ibidem plura And if the Excutors have any goods of the Testators in any part of the world he shall be charged in respect of them or if Merchants and others which have goods of great value beyond the Seas be indebted in England if those goods should not be liable to their debts it would be a great defect in Law Ib. Coke com f. 282. a. It is an ancient principle of the Law that for transitory actions the Plaintiff may alledge the same in what place or county he will and the Jurors upon not guilty pleaded are to be made to find for the Plaintiff neither can the assault battery or finding of goods c. alledged in another county be traversed without special cause of justification which extendeth to some speciall place as if a Constable of a towne in another County arresteth the body of a man that breaketh the peace there he may traverse the County but he must not rest there but all other places saving in the town where he is Constable vide ibidem plura But in the case of felony the triall shall be by the common Law in the same place where the offence was and shall not be supposed in any other place for in criminall causes the rule holdeth Ubi quis deliquit ibi punietur Coke l. 6. f. 47. b. where one offendeth there he shall be punished yet this rule faileth in treason to adhere to the enemy of the King without the Realme which is declared to be treason by the common Law by the statute of 25. E. 3. de proditionibus for least there should be a want of triall in matter of such consequence the adherence without the Realme must be alledged in some place within England and if upon the indictment they shall find any adherences out of the realme they shall finde the Delinquent guilty 5. R. 2. triall 24 but commonly they did indite him in that county where his Lands did lie which were to be forfeited and so it is declared by the statute of 35. H. 8. c. 2 vide Coke com 261. f. b. Saepe locus in delcto auget vel minuit culpam Reg. I. C. The place doth often augment or diminish the offence as he who striketh a man in Westmin Hall shall have his right hand cut off his Lands Chattels forfeited so if he strike a Juror and besides shall be committed to perpetuall Prison Finch Nâ—mot f. 25. If men tilt or turney in the presence of the King and if two masters of defence play their prizes on the stage and kill one another it is not felony Heb. Rep. f. 89. So tâ—e felonious taking of goods out of any Church or Chappel is sacriledge and a felony more hainous then ordinary and therefore more severely punished It was King Alureds Law Qui in templo quid clepscrit valorem solvito mulctampretio rei congruam pendito manum quacumque furatus est praecidito nec redimere manum potest nisi propria capitis aestimatione whosoever shall steale any thing in a Church let him restore the value let him pay a fine answerable to the worth of the thing let that hand with which he did steale be cut off neither could he redeem his hand but with the price of his life which in those antient times wherein offences were not so frequent was a grievous punishment wherin their was chiefly censured with satisfaction but in the succeeding worser times by the statute of 23. H. 8. It was made capitall without the benefit of Clergy So to kill the Kings Chancellor Treasurer Justices in Eyre and Assise of Oyer and Terminer being in his place and doing his Office is high treason Dalt 226. Si desit obedientia non adjuvat locus Coke l. 7. f. 24. b In Calvins case If obedience be wanting the place furthereth not Samaria in Syria was the cheife City of the ten Tribes but being conquered by the King of Syria and the Jews taken Prisoners and carried away into captivity was after inhabited by the Paynims yet because the people of Samaria were not under actuall obedience by the judgement of the chiefe Justice of the whole world they were adjudged alienigenae Aliens Luke c. 17. Where one of them who was cleansed of his Leprosy by our Saviour being a Samaritan returned and gave praise to God and is by our Saviour called an alien that is a stranger borne because he had the place but wanted the obedience and where obedience is wanting the place helpeth not And this agreeth with the divine saying Si locus salvare potuisset Satan de coelo pro sua inobedientia non cecidisset Adam in Paradiso non cecidisset Lot in Monte non cecidisset sed potius in Sodom If the place could save one Satan for his disobedience had not fallen from heaven Adam had not fallen in Paradise and Lot in the Mountain had not fallen but rather in Sodom A Paribus from equals PArium eadem est ratio things are to be construed according to equality of reason Coke l. 3. f. 12. b. As upon a recognisance acknowledged by the Ancestor or in a judgement upon an action of debt given against him if he dieth sâ—ised of two Acres whereof one is holden in Burrough english or having issue two daughters which make partition in this case if one be onely charged the other shall have contribution because they are in aequali jure in equall right So if a man be bound in a statute or recognisance and after his death some of the land descendeth to the heir of the part of the father and some to the heire of the part of the mother in this case one onely shall not be charged and if he be he shall have contribution against the other So in dower if the tenant vouch the heire in three severall wards every one shall be equally charged as it is agreed 11. H 7. 22. Ibidem
by his Will or grant a rent-charge out of it for shee hath an estate in it before and at the time of his death which shall prevent the Devisee and shee surviving is remitted to the terme and therefore shall avoide the rent-charge 14. Eliz. Ployd 418 b. If Lessee for yeares granteth his terme to a Feme-covert and another or if a feme-sole and another are Joyn-tenants for years and shee taketh an husband the Joynture is not dissolved but continueth and the Survivor of the feme or the stranger shall have all the terme because the terme is a Chattell reall and the marriage of the feme shall not devest the terme out of the feme but shee had an estate in it as shee had before so that if an estranger oust them the feme ought to joyne with the baron in the suite of ejectione firme and the feme shall have judgement as well as the baron Ployd ibidem So in an action of debt upon arrearages of account against one who was receivor to the feme whilst shee was sole they both must joyne though the Auditors were assigned during the coverture for the very cause of action that is the receipt was in her right 16. E. 4. 8. The husband hath power also to dispose of things in action and his release of an obligation made to the feme or where goods were taken from her whilst shee was sole shall be good against the wife and he dye 87. H. 8. 1. But if he dye without making such a release the Wife shall have an Action upon the Obligation and not the Executors of the husband likewise the wife or her Executor if shee dye shall have those things in action and not the husband but shee may make her husband her Executor and then he shall recover them to her use 39. H. 6. 27. The wife is unable to contract with any without the consent of her husband and upon a Feoffment to a feme covert shee taketh nothing unlesse her husband will agree and where one is bound to enfeoff the husband and wife the husbands refusall is the refusall of them both Finch Nomot f. 44. And where the husband and wife are joynt Purchasers the husband may make a Feoffment and livery upon the Land which shall worke a discontinuance though the wife be in presence upon the Land and will not agree But if the husband and wife bargaine and sell the wives Lands by Indenture and the Vendee grant unto them for the same a yearly rent her acceptance of this rent after her husbands death doth not bar her of the Land although the acceptance be an agreement to the bargaine but the bargaine being but a contract is the bargaine of the husband onely and not of the wife for a wife is sub potestate viri cui invita contradicere non potest and therefore is the Writ cui invita given to the wife by Law for the recovery of her Land after her husbands death being aliened by him and therfore it is that Judges when a woman is to acknowledge any fine of any Lands doe examine her apart from her husband to know whether shee be willing or come to doe it by compulsion of the husband Offi of Ex. f. 210. And upon a joynt purchase of the husband and wife during coverture if the husband alien shee shall recover the whole after her husbands decease unlesse shee acknowledge a Fine and a cui invita is given to the feme by the Statute of Westminster 2. c. 3. upon a recovery by default against baron and feme and by the equity of it a feme divorced shall have a cui ante divortium to recover the Land lost by baron and feme by default before the divorce Ployd f. 58. a. And if Lands be given in Frank-marriage and a divorce had afterwards the feme shall have all the Land ibidem the reason that he there giveth is because the marriages of women and their advancement by it are much favoured in Law as if a woman give Lands to a man causa matrimonij praelocuti and he will not marry her shee shall have a Writ to recover the Land ibidem and Dyer f. 13. A man giveth certaine goods to his Daughter in marriage upon a divorce the feme shal have al the goods so given that are not spent because they were given for her advancement so as it is regularly true In omnibus fere uxori sub potestate viri succurritur Coke l. 9. f. 84. b. In all things almost the Law helpeth the wife because shee is under the power of her husband as if baron and feme as in right of the wife have right to enter into Lands and the Tenant dyeth seised the entry of the husband is taken away upon the heire which is in by descent but if the husband dye the wife or her heires may well enter upon the issue for the laches of her husband shall not turne to the prejudice of the wife or her heires Littl. but otherwise it is if the wrong was done to the feme sole before shee took husband Coke Com. f. 24. a. vide ibidem plura and unlesse it be for the performance of a condition annexed to the estate of Land as if a feme be infeoffed either before or after marriage reserving a rent and for default of non-payment a re-entry in that case the laches of the baron shall dis-inherit the wife for ever ibidem b. Ubi nullam matrimonium ibi nulla dos Bracton Coke com f. 32. a. where there is no marriage there is no dower Ployd f. 375. a. for the marriage of the woman is the principall cause of her dower and though the seisin of the baron and death of the husband are causes sine qua non without which a dower cannot be had yet the procatartique and impulsive cause of the dower of the woman is the paines and burden shee endureth under the power and yoke of matrimony for as Tholosanus Tholosanus Synt. L. 9. c. 11. matrimonium is quasi matris munus a matre potius quam a patre dictum because shee beareth the burden in her wombe and with painfull labour delivereth it and is very indulgent to nourish it and for those reasons as Bracton saith dowers were instituted for a competent livelyhood for the wife during her life to wit propter onus matrimonij ad sustentationem uxoris ad educationem liberorum si vir premoriatur for the burden of matrimony and sustentation of the wife and education of the children if the husband dy before l. 5. c. 22. which Ockam expresseth in a more affectionate terme and calleth her dower praemium pudoris the reward of her chastity and love f. 40. And therfore though it be not necessary that the seisin of the land shal continue during the coverture for notwithstanding the alienation of the husband the wife shall be endowed yet is it necessary the marriage shall continue for if
upon a false consideration the heire shall not be received to aver a false consideration against his ancestor Dier Ex nudo pacto non oritur actio Ployd 305. a. and 308. b. from a bare contract or promise no action riseth for it is not much argued by the laws of England what diversity is betweene a contract and a promise and a gift for the intent of the law is to have the matter argued not the termes A Nude contract is where a man maketh a bargaine and sale of his goods or lands without any recompence appointed for it As if I say to you I sell you all my lands or all my goods and nothing is assigned that the other shall give or pay for it this is a nude contract and is void in law and the vendee cannot bring an action for them Dr. and Student c. 24. And a nude promise is when a man promiseth to give a man certaine mony at such a day or to do him certaine service and nothing is assigned for them As if I promise to give you twenty pound to make your house anew there you shall have no action against me for the 20 l. because it is a nude promise as it is affirmed by Townsend T. 17. E. 4. Ployd f. 308. b. So if a Carpenter by word covenanteth and undertaketh to make a new house and he doth not and for not making it the Plaintiff bringeth an action of covenant against the Carpenter and it doth not appeare that he had any thing for making of the house it was adjudged in 11 H. 4. f. 33. that the Plaintiff should not take any thing by his writ Ployd 309. a. And if I promise to another to keep his goods safely till such a time and after I refuse to take them no action lieth against me but if I take them and after they be lost or impaired through my negligent keeping an Action lieth Doctor and Stud. c. 24. But otherwise it is if he to whom the promise is made have a charge by reason of the promise which he hath also performed then in that case hee shall have an Action for that thing is promised As if a man give land in Frankal-moine they are bound to make prayers to God for him and in consideration of such prayers he is bound to pay to the cheife Lord all the rents and services issuing out of that land Lit. a. Frankal And in 17. E. 4. 5. It is taken by diverse that if I promise a Surgeon a certaine summe to cure such a poor man or if I promise to a labourer certaine mony to repaire such a way which is in the high way that he shall have an action of debt for it for it is a thing of charity and I merit thankes of them for it and therefore shall not be called Nudum pactum Ployd f. 306. a. If I contract with another that if he will marry my daughter that I will give him 20 l. in this case if he take her to wife he shall have an action of debt for the 20 l. 22. E. l. Assi Pl. 70. by Thorp and yet I have nothing for it and if a man hath no regard to nature it shall be nudum pactum but because my daughter is advanced by it that is a good consideration to me Ployd f. 305. a. So Dr. and Stud. c. 24. f. 104. It is a good promise because he hath quid pro quo the preferement of his Daughter for his money But if a man promise to another 20 l. with his daughter in marriage if he marry the daughter and the money be not paid he shall not have an action of debt or an action of the case at the common law but he must sue for his money in the spirituall Court for here is no good forme of contract F. n. b. f. 44. a. And as Bracton saith matrimonium est principale ejusdem juris id est jurisdictionis eâ—â—e debet accessorium matrimony is the principall and the accessory ought to be of the same jurisdiction Gardiner brought an assumpsit and declared that the Defendant in consideration that he was indebted to the Plaintiff in 10 l. for pasturing and feeding of certaine beasts in the Plaintiffs grounds and for wheat and other Marchandises had and received by the said defendant did assume to pay to the said Plaintiff the debt that he had paid Vpon issue non-assumpsit was found for the Plaintiff and upon a Writ of error in the Exchequor-chamber that there must be some certaine cause of the debt assigned for it is not sufficient to say generally he was indebted for it might be for rents upon leases or for debts upon specialties but it was adjudged certaine enough and required not so much certainty as an action of debt upon a contract Hob. rep f. 7. Wolastone brought an assumpsit against W. and declared that whereas W. promised him 30 l. in consideration that the Plaintiff on the twentieth of August 1610. had given day to the said defendant for the payment of the same money untill the ninth of October following the Defendant did assume to pay him the same ninth day and upon issue non-assumpsit it was found for the Plaintiff and damages given Hob. f. 26. Wolastons case vide ibidem L. brought an assumpsit against B. and declared that whereas the defendant had felloniously slaine one P. M. the defendant afterwards required the Plaintiff to labour and doe his endeavour to obtaine his pardon from the King whereupon the Plaintiff upon the same request did labour c. to obtaine pardon for the said defendant and afterwards fi c. in consideration of the Premisses the defendant did promise to the Plaintiff to give him a hundred pounds and that he had not c. upon non-assumpsit it is found for the Plaintiff 100 l. ibidem f. 147. vide ibid. plura B. bringeth an action of the case against C. executor of Reade and counteth that whereas he had in M. terme 14. Jac. presented an attachment of priviledge against Reade rerurn in H. terme the testator knowing of it in consideration that at his request the Plaintiff would forbeare to prosecute the said writ did promise to pay him 50 l. and then averred c. and after verdict for the Plaintiff and exceptions in arrest of judgement the Court gave sentence Bedwels case vide ibidem plura A promise made for a thing past is void as if I promise one ten pounds because he hath builded me an house an action lyeth not there and if I promise to give another 10 l. in recompence of such a trespass that he hath done him an action lieth not against him the reason is because a contract properly is where a man for his goods shal have by the assent of the other party certaine goods or some other profit at the time of the contract or after but if the thing be promised fot a cause that is past by way of a recompence
case whence springeth this often used assertion Non est regula quin fallit for as Cato saith vix ulla lex fieri potest quae omnibus commoda sit sed si majori parti prospiciat utilis est there can scarce any Law be made which shall fit all men but if it provideth for the greater part it is profitable and therefore the ordainers and interpretors of Laws respect rather those things which may often happen and not every particular circumstance for the which though they would they shall not be able by any positive Law to make provision and for the like reason Mr. Ploydon saith that Law is reasonable that provideth for the multitude though that some persons loose by it f. 369. b. By reason whereof they doe permit the rules actions and propositions of the Common Law upon discourse and disputation of reason to be restrained by exceptions which are grounded upon two causes the one is equity the other is some ground or rule proposed wherein for conformities sake and that no absurdity or contradiction be permitted certaine exceptions are framed which doe not onely knit and conjoyne one rule of reason to another but by meanes of their equity temper the rigor of the Law which upon some certaine circumstances in every of the said rules might happen and fall out omnia bene aequiparat as Bracton saith Nomot f. 14. But as Sir Hen. Fi. saith this crossing and encountring of one ground and maxime with another if the greatest difficulty we finde in the arguing of our cases but to help this we are to prefer those and those are to prevaile that carry the more excellent perfect reason and equity with them and Sir Francis Bacon saith it is a point worthy to be observed generally in the rules of the Law that where they encounter or crosse one another in any case it be understood that the Law holdeth worthier and which rules are of more equity or humanity but now to give you some examples of them which allwayes doe illustrate Coke com 183. It is a maxime in the Law Quaelibet concessio fortissime contra donatorem interpretanda est every grant shall be taken most strongly against himselfe as if Lands be letten or a rent granted an estate for life passeth for that is most strongly against himselfe which is to be understood that no wrong be thereby done for there is another rule in the Civill Law ea est accipienda interpretatio quae vitio caret and a maxime in our Law that legis constructio non facie injuriam the interpretative construction of Law shall wrong no man and therefore if tenant for life maketh a lease generally it shall be taken for his own life or else it should worke a wrong to him in reversion and so it is if tenant in taile should make a lease generally for otherwise it should worke a discontinuance and a wrong vide ibidem So if tenant in fee maketh a lease for life without mentioning for whose life it shall be deemed for the life of the Lessee and shall be taken more strongly against the Lessor but if tenant entaile maketh such a lease for life without expressing for whose life this shall be taken for the life of the Lessor because otherwise it would work a wrong Coke Com. f. 42. a. So if an Executor grant all his Goods and Chattells the goods which he hath as Executor will not passe because it may be a devestation and a wrong yet against the trespassor he shall declare quod bona sua cepit 10. E. 4.1 So it is a rule verba ita sunt intelligenda ut res magis valeat quam pereat words are so to be understood that the matter may prevaile rather then perish as if I give Lands to I. S. and his Heires rendring five pounds yearly to I. S. and his Heires this implyeth a condition to me that am the Grantor yet were it a stronger exposition against me to say the limitation should be void and the Feoffment absolute Bacon Max. f. 15. If the Chancelor dyeth before his servants priviledge discussed in bank 35. H. 6. 3. 172. b. yet it shall be allowed contrary to the rule sublata causa tollitur effectus but there is another rule actus legis nulli facit injuriam the act of the Law prejudiceth no man and for that reason the Court shall not prejudice him where no folly was in himselfe It is a ground qui male agit odit lucem and therefore the Law countenanceth more things done in the day then in the night as the party hath all the day till night to pay his rent and if it be a great sum he must be ready as long before the Sun set as the mony may be told for the other is not bound to tell it in the night and a man must not distraine in the night time for rent behind yet is there another ground in the Law quod necessarium est licitum and therefore when there is a necessity of doing things they may be done in the night time as an arbitrement made and delivered in writing the last day after the Sun set is good enough for judgements and arbitrements require long advice so may goods be distrained for in the night for damage feasant and a man may be arrested in the night for otherwise peradventure he shall not doe it at all It is a ground in the Law nihil agit in seipsum no man can doe an act to himself yet if one of the Chapter enfeoff the Deane and Chapter by that he he himselfe shall take by his own livery because the Law in that case cannot doe otherwise so a feme tenant in Socage may endow her selfe and an Executor pay himselfe It is a ground in the Law certa debet esse natratio counts and declarations must be certaine yet things which containe a necessary implication are good enough for it is another ground non refert quid ex aequipollentibus fiat it mattereth not what is done by equippollent or words which amount to such a sense as in an Ejectione firmae c. In a count of a lease made by tenant for life it sufficeth to say that the Lessor is yet seised without the alledging of his life expresly because it amounteth to the same sense by necessary implication So in an information upon the Statute of usury and he counts that the Defendant took per viam medium corruptae mutnationis by the way and means of corrupt borrowing whereas it should be accomodationis plaudingo and yet good enough It is a ground qui facit per alium facit per se things done by another are as it were done by himselfe yet is there another rule that corporall and personall things cannot be done by another as suite of Court cannot be done by another 7. H. 4.9 Otium est mater omnium vitiorum Coke l 11. f. 53. b. As all vertue consisteth in action so vice
of Magna Charta c. 11. might enter into anothers Woods and cut the Trees for reparations of Castles but by that Statute he did restrain himself so to do Ployd 3. 22. b. vide ibidem plura A Mil-stone that is lifted up to be picked and beaten cannot be distrained for it remaineth parcel of the Mill which is a thing for the Common-weale weale 14 H. 1 25. Things brought into an Inn Faire or Market shall not be distrained 22 E. 4. 49. No more shall Cloath lying in a Taylors Shop or an Horse that is a shooing shall not be distrained for the rent issuing out of the Shop Coke Com. f. 47. a. When a man and a woman are riding on a horse or Axe in a mans hand cutting of wood and the like they are for that time priviledged and cannot be distrained Valuable things shall not be distrained for rent for benefit and maintenance of Trade which by consequence are for the Common-weale and are there by authority of Law as an horse in the Hostrey nor the materials in a Weavers Shop for making of cloath nor sacks of Corn or meal in a Mill nor in a Market nor any thing distrained for damage feasant for it is in custody of the Law and the like So Beasts belonging to a Plow averia carucae shall not be distrained and no man shall be distrained for the Instruments of his Trade or profession as the Axe of a Carpenter or the Books of a Scholar whilest Goods or other Beasts may be distrained ibidem Coke l. 10. f. 139. b. An action of the case was brought against D. and counts that D. was seised of certain lands in Kent by reason of which his ancestors and all the Ter tenants from the time whence c. have made and repaired when it shall be materiall so many perches of the walls of the Sea in K. c. and for default of repairing c. the water entred and over-flowed the lands ef the Plaintiff the Defendant traversed the Prescription and it was found for the Plaintiff and that there was a default in the Wall for not repairing by which the Plaintiff recovered Damage and a Writ awarded to the Sheriff to distrain B. to repair the wall there where it was materiall Note this judgment in an action of the case and the reason is pro bono publico for Salus populi est suprema lex and therefore is that part of the judgment in this action of the case that the Defendant shall be distrained to repair the wall ibidem Publica utilitas privatorum commodis est praeferenda Reg. I. C Publicum bonum privato est praeferendum the publick utility and good is to be pâ—eferred before private gaine and profit and therefore shall be more favourably expounded by the Law then when it is onely for private Coke comm f. 181. b. As the Tenant holdeth of the Lord by fealty and one grain of wheat c. and the Lord purchaseth part the whole shall be extinct because it is entire but if an entire service be pro bono publico as Knights-service Castle-guard Cornage c. for defence of the Realm or to repair a Bridge or a way or to keep a Beacon or to keep the Kings Records or for advancement of Justice and Fence as to aid the Sheriff or to be Constable of England though the Lord purchaseth part the service remaineth and so it is pro opere devotionis pietatis for works of devotion and piety Coke comm f. 149. a. Coke l. f. 63. a. In the Chamberlain of Londons case the Inhabitants of a Village may make Ordinances or by-Lawes for the reparation of a Church or of an high-way or any such thing as is for the publick good generally and in such case the greater part shall bind all without any custome So Corporations cannot make Ordinanccs or constitution or By-lawes without custome or charter unlesse it be for things which concern the publick good as reparations of Churches common-waies or the like So in Corporations such Ordinances or Bylawes are allowed by Law which are made for the due execution of the Lawes and Statutes of this Realm and for the good or due government of the body Corporate And the Ordinance of the Mayor Aldermen and Comminalty of London that all Citizens Free-men and strangers shall not put any broad cloath to sale within the City before it be carried to Blackwell Hall to be viewed and searched so that it may appear to be vendible and that hallage be paid for it to wit 1 d. was good and allowable by Law because it was for the better execution of the Statutes made in that behalf without deceit and also that the assesment of the said peny for hallage was good and reasonable because it was pro bono publico vide ibidem plura Coke comm f. 181 b. If a Charter of Feoffment be made and a Letter of Attorney to four or three joyntly and severally to deliver Seisin two of them cannot make Livery because it is neither by the four or three joyntly nor any of them severally but if the Sheriff upon a Capias directed to him make a Warrant to foure or three joyntly and severally to arrest the Defendants two of them may arrest him because it is for the execution of Justice which is pro bono publico jura publica privato promiscue decidi non debunt and publick Lawes ought not promiscuously to be decided by the private ibidem Coke com f. 165. a. If a Castle that is used for the necessary defence of the Realm descend to two ot more Coparceners this Castle might be divided by Chambers and Rooms as other houses be but yet that it is pro bono publico defensione regni for the publick good and defence of the Realm it shall not be divided for the right of the Sword as Britton saith which suffereth not division that the force of the Realm do not fail so much but Castles of habitation for private use and that are not for the necessary defence of the Realm ought to be parted between Coparceners as other houses ib. And for the same reason a woman shal not be endowed of a Castle that is maintained for the necessary defence of the Realm because it ought not to be divided and the publick shall be preferred before the private but of a Castle that is for private use and habitation she shall be endowed Co. com f 31 b. vide ibidem plura So a protection cum clausula volumus is of two sorts the one concerneth services of War as a Kings Souldier c. the other wisdome and counsell as the Kings Ambassador and Messenger pro negotiis regni both these being for the publick good of the Realm private mens actions and suits must be suspended for a convenient time for the publick is to be put before the private but the cause of granting the protection must be expressed in the protection to the end
7. Quicquid non excutitur justitia non putatur Reg. I.C. Coke l. 6. f. 52. a. Quicunque aliquid statueret parte inaudita altera aequum licet statuerit haud aequum fecerit whatsoever is not discussed and tried is not to be reputed Justice and if any one shall decree any thing one of the parties being not heard though he doth decree that is right yet hath he not done that is just and equall in Bosewels case where it was resolved that no Incumbent shall be removed by a Quare Impedit or an Assise of Darrein presentment purchased within the six moneths unlesse the Incumbent be named in the Writ although the Incumbent be in a defeasible Title for then he shall be removed and adjudged not being heard Quicunque aliquid c. So Coke l. 11. f. 99. a. in James Baggs case though the Mayor and Counsel-chamber of Plymmouth have lawfull authority either by their Charter or Prescriprion to remove any one from his freedome and that they have just cause to remove him yet if it appear by the return that they have proceeded against him without hearing him to answer to what is objected or that he was not reasonably warned such a removement is void and shall not bind the party In ancient times where any were found guilty by the good people by Inquest for any mortall Offence the King gave order to execute them without any answer Mirror of Justice which custome may seem to be derived from the Dictators power among the Romans who had authority to cast any into prison and to punish him with death indicta causa And which also was a custome among the Gauls De Laud. l. Aug. 4. 82. whom now we call French which as Fortescue saith in his time remained among them to wit That the King usually calling his Nobles into his Counsel-chamber without any form of judgment were adjudged criminous by the Conscience of the Prince and thereupon were they presently by the Marshals servants put into Sacks and in the night by them precipitated into deep rivers and so drowned And which custome also was used in Almaine But King Alfred in compassion of the frailty of man who cannot keep himself from sinning without the assistance of the grace of God abrogated that custome and decreed that no Appelle or Inditee should be condemned or executed without answer Mirror of Justice l. 2 f. 3. which still continueth and therefore saith Coke l. 2. Epist ad lectorem are our Lawes commended above other which punisheth not the greatest Offenders though it be for Treason but by just and equall proceedings in Law according to the ancient Lawes of England declared by the generall Charter Nulli vendemus nulli negabimus justitiam rectum And therefore saith Fortescue De Laud. l. A. f. 122. It is part of the charge of the Judges Oath not for any command of the Prince either by Letters or by word of mouth to deviate from Justice or to deny right to any but to minister justice and right indifferently to all as well enemies as friends and accordingly saith he Queen Elizabeths charge to the Justices was That for no commandment of hers common right should be disturbed or delayed Whereas in other Countries the Judges had rather misconster the Law and do injustice then to displease the Kings humour according to the old Sarchasme Ad libitum regis sonuit sententia legis For which unlawfull and wilfull perversness some of our later Kings have been blamed and for which as Frossard saith l. 2. c. 3. Edward the second was condemned quod in audita causa aliquos proceres de medio tollebat that he did punish with death some of his Nobles without hearing their case neither was the stupendious proceeding of Henry the eigth against his new created darling the Lord Cromwell commendable Hen 8. f. 71 or allowable though acted by Parliament who being accused of high Treason and Heresie as Godwin saith inauditus damnatur is condemned without hearing his answer Neither is David's unjust judgment in condemning Mephibosheth being absent 2 Kings 16. and unheard upon the false accusation of Siba approved for whosoever shall decree any thing the other being not heard though the decree be right yet it is not just and equall Quicunque jussu judicis aliquid fecerit non videtur dolo malo fecisse quia parere necesse est Coke l. 10. f. 70. b. He that doth any thing by commandment of the judge seemeth not to have done any thing with a fraudulent intent because he needs must obey And therefore the Officers and Ministers of a Court are not to be punished for executing the precept and warrant of the Court whereas if they had refused to do it the Court would have punished them for their disobedience As in 16 E 3. 70. it is taken for a Maxime that the thing which the Officer doth by Precept or warrant of the Court cannot be said to be against the peace Dr. Stud. f. 150. The Officers of the King are bound to execute the Writs of the King at their perill But this diversity is to be taken that when a Court hath jurisdiction of a Cause and proceedeth erroniously there the party who sueth or the Officers and Ministers of the Court that execute the precept and proces of the Court are not liable to an action but when the Court hath no jurisdiction of the Cause and all the proceeding is coram non Judice actions do lye against them without any regard to the precept or proces for when he hath no jurisdiction he is no judge and it is not of necessito obey him who is no judge no more then a meer stranger for it is a rule Extra terratorium jus dicente non paretur impune He that obeyeth in prescribing Lawes beyond his jurisdiction shall not go without punishment Co. ibid. f. 57. A B. And therefore 22 E. 4.33 Pigot said that if the Court hath not power and authority their proceeding is coram non Judice As if the Court of the Common Bench hold plea in an appeal of death robbery c. and the Defendant is attaint it is coram non Judice but if the same Court in an a plea of debt award a Capias against a Duke c. which by the Law lyeth not against him and it appeareth in the Writ it self yet if the Sheriff arrest him by force of that Capias because the Court hath jurisdiction of the Cause the Sheriff is excused though the writ is against the Law And so if a Capias commeth unto him without an Originall and he serveth it it is excusable in false imprisonment Dyer f 60. pl. 26. So if a Iustice of Peace make a Warrant to arrest one for felony which is not indicted though the Iustice of Peace erre in the Warrant of it yet he that maketh the Arrest by force of that Warrant shall not be punished by a Writ