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A43077 A treatise concerning statutes, or acts of Parliament, and the exposition thereof written by Sir Christopher Hatton ... Hatton, Christopher, Sir, 1540-1591. 1677 (1677) Wing H1142; ESTC R14799 17,009 104

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if he have Assets to him in Fee-simple descended from the same Ancestor he shall be barred but if he have not Assets to him already descended but that after they shall descend then the Tenant shall have recovery by Writ of Judgment that shall issue out of the Roll of the Justices before whom the Plea was pleaded and by the equity of the same Statute if with Assets garranty of the Tenant in tail be pleaded where he hath not Assets but after Assets is to descend there the Tenant shall have Scire facias to have the Assets and not the Land tailed because that the Issue might after recover that from him and so the Statute giveth to the Tenant the thing aliened and to the Issue the Assets and by the equity the Issue shall have the thing aliened and the Tenant shall have the Assets and this is because that former law would not suffer the Land entailed effectually to recompence the party disherited and so the Statute should have served to little purpose or none if it had not been thus expounded 32 H. 8. A Statute was made against buying of Titles of Land which Justice Mountague in the Commentaries expoundeth thus Except such Person and Persons have been in possession thereof making a full point there or of reversion or remainder thereof making another point there or have taken the Rents or Profits thereof by the space of one year so that these words by the space of one year shall be referred only to the last clause of receiving Rents and so he in the reversion or in the remainder or he that hath been in possession though it were but an hour hath power to alien for he saith that understanding the Statute according to the letter the Baron being possessed by the space of a year in the right of his Feme Tenant in tail might make a Lease or alien and he that should enter for mortmain or by escheat or recover by any title might be restrained for a year All which is inconvenient and to avoid such inconvenience the Statute is expounded by such pointing and reference The Statute of Articuli super chartas against Champerty hindreth not the Father from infeoffing his Son and Heir And the Statute of Westm. 2. cap. 11. which saith that in Appeals it shall be inquired who be Abettors extendeth not to the Heir that abetteth his Mother Anno 5 E. 6. A Statute was made that if any Treasurer Receiver or other Minister Accomptant or Deputy or Deputies to them receive of any person any sum of Money or other Profits of or for the payment of any Fees Annuities Pensions or Warrants more or otherwise than he might by former Statutes in such cases provided that then the Treasurer c. so offending should pay for every penny or penny worth so taken by way of forfeit vis viii d. to be recovered in any of the Kings Courts c. though these words extend to all mens Officers yet they are restrained to the Kings Officers only even for the evidence of Reason for other men may be spoken with themselves especially to remedy injustice offered by their Officers and there is no Statute that limiteth the Fees of other mens Officers besides the Kings and by the Preface of the Act it may appear to be a remedy for those that the Kings Officers defrauded of their Pensions granted out of Religious houses and Justice Dyer saith that the Preface is the Key to open the intent of the Makers of Acts of Parliament and Civilians say that Cessante statuti prooemio cessat ipsum statutum for Reason hath been so forcible against the words of Statutes that even in the Princes Prerogative the words of Statutes have been controlled as the Statute of Prerogativa Regis saith Dominus Rex habebit custodiam omnium terrarum eorum qui de ipso tenent in capite per servitium militare de quibus ipsi tenentes seisui fuerunt in dominico suo ut de feodo die quo obierunt de quocunque tenuerunt Yet if the Kings Tenants have Lands in Knights Service holden of the King and other Lands descending from the Mother holden of another Lord and die without Issue the Lands descending from the Mother shall not be in the Kings hands for they go to the next heir of the Mothers side and the heir of the Father shall not have them wherefore the King who is but to have the custody of the heir of the Father shall have but those Lands that to him descended and not those that went to another heir The Statute of Westm. 2. touching View which provideth that View shall not be granted in the second Writ if the Party abate the first Per exceptionem dilatoriam is restrained where it is abated by such an exception dilatory as the Court or another Tanquam amicus Curiae might abate it by An Act of Parliament confirmeth all the Customs of a Town there are some against Law and Reason those are not confirmed 3 H. 7. cap. 1. It is ordained That the Chancellor and Treasurer of England for the time being and Keeper of the Privy Seal or two of them calling to them a Bishop and a Temporal Lord of the King 's most honourable Privy Council and the two Chief Justices of the King's Bench and the Court of Common Pleas or in their absence two other Justices have Authority to examine Riots c. And it is holden that none are Judges in this Court but the Chancellor and Treasurer and Keeper or two of them and the other are but Assistants and not Judges yet it is held an error if they call not such persons as is limited by the Act for Law and Reason say Licet presentia aut consilium alicujus requiratur in aliquo actu requirens non tenetur illud sequi Finally Every Statute doth either bring forth some new thing or is declaratory of former Law and therefore every Statute must be expounded to have some good operation not as a thing needless or void The Statute of 32 H. 8. c. 13. providing that Leases for years made by Abbathies c. shall be good for 21 years only from the time of the making if so many years be by the demise lease or grant specified or else for so many years as be expressed so that the old Rent be reserved and so that the said Lease or Leases exceed not 21 years This first so that is expounded to be conditional and the second so that is but declaratory for if the old Rent be not reserved all is void through breach of the condition but the second so that the said Lease or Leases exceed not 21 years doth only limit the meaning and declare that such Leases shall be good for so long and no longer and if there be mention of more years the residue that exceed 21 are void but not the whole term and if it should be otherwise expounded the latter words would overthrow all the
Statute of E. 3. ordaineth that no man upon pain of Imprisonment should give Almes to a valiant Beggar yet if one meet with such an one in so cold weather and so light apparel that if he have no cloaths given him he shall die before he shall come to any Town If a man give him Apparel he offendeth not the Law for there is an inward dispensation by the bond of Christian Charity and Compassion By the Statute De frangentibus prisonam It is Felony if a Prisoner break Prison yet if the Prison-house be on fire and the Prisoners break it they are excused by the Law of Reason And this is as evidently true as it is manifest that the Law punishing Blood-shed is not against the Barber or Surgeon that letteth Blood in exercise of his Faculty for the health of man and that the Statute Demalefactoribus in parcis Meaneth not to punish any but unlawful Hunters and not such as have leave to shoot at a Deer and shooting hit a Pale or Tree Furthermore to exceed the limits of Epicaia some Statutes are ampliative of the Common Law reforming matters needful in the Commonwealth and supplying a defect in the Common Law As the Statute that giveth Action against the Warden of the Fleet for suffering to go at large any Prisoner there being by judgment at the suit of any Party by Bail Mainprise or Baston without agreeing with the Parties and to recover the value of the debt at the Keepers hands This is extended to all Sheriffs and Gaolers or Keepers of Prisons Yet some think this Reformation to be drawn from the Statute of Westminster the 2d giving Auditors power to imprison Accomptants found in Arrearage but from whethersoever Statute the Reformation proceedeth common utility and necessity requiring that those that are justly condemned should be safely kept to satisfie the Law and that the negligence or lewdness of Gaolers or other Officers should not make the grave judgments of the Sages of the Law clusory and the hope of Suitors frustrate upholdeth this dilatation But in all Expositions by Equity there must be parity or minority of Reason and good judgment of evident utility publick and necessity for supplying defects in the Law and it would be utility or necessity proved otherwise than by circuit of argument or far borrowed circumstance that is to say plain and evident The Statute De donis conditionalibus hath but three kinds of intails specified and yet there are divers other founded upon the equity thereof though the Statute have not every mans good word but as the Doctor and Student rehearseth is calumniated of divers as brought in of self-love and singularity by those Lords and Gentlemen that were then in the Parliament-House for advancement of their Blood and perpetuation of their Honours and Names yet are all those extensions received lovingly and generally And seeing it not without some mans refragation so well born out and allowed I cannot think the contrary but that when more plain and evident utility publick and necessity for supplying defects in the Law shall be ready to warrant expositions by equity they will be allowed For if all Estates tailed were Fee-simple Conditional as they were before that Statute men would think the Law as good and perfect as now it is and as godly leaving liberty for the time to the Possessor to bestow his Land in Fee as God should move his heart which many times would be better than upon his own Blood degenerated from ancient Virtue Nevertheless these enlargements of this Statute De donis conditionalibus are quietly retained and lovingly embraced because they have the surer that is to say the abler sort to maintain them for commonly every man possessed of any good thing be it Land or whatsoever else is dear to man thinketh that Law to have good savour and relish that conveyeth and conducteth the same to his Posterity The Statute of circumspecte agatis nameth only the Bishop of Norwich and his Clergy and yet appertaineth to all the Bishops in England and is so taken of all men without exception which I suppose to be for the causes above recited that is because it maketh to publick good that is to concord between the Governours Spiritual and Temporal and to the quiet of the Subjects generally containing a distinction in very main points of the Jurisdiction Ecclesiastical from the Temporal Moreover some Statutes are expounded by Equities to reach to things of Vicine nature and condition and sometimes because the one cometh in lieu of the other and the things lie under the same necessity of Reformation that the cases expressed are under and therefore the Statute that saith that the Executor that first cometh by distress shall be taken is extended to Administrators The Statute of Westm. 2. cap. 3. saith Admittantur heredes vel illi ad quos spectat reversio and by equity of the same he in the remainder is received The Statute of 13 R. 2. giveth receipt for faint pleading and is extended to faint defending The Statute of Acton Burnell saith If Praysers prize Goods too high they should take them by the price this is construed to reach to extenders of Land The Statute of Westm. 2. that giveth Cui in vita is extended to Cui ante divortium The Statute of E. 3. That Executors shall have Action of Trespass De bonis asportatis in vita testatoris is extended to Administrators The Statute of Glouc. cap. 7. is that where Tenant in Dower alieneth he in reversion shall have Writ In casu proviso and by the equity thereof tenant by the courtesie tenant for term of life alien in reversion have Writs of Entry In casu consimili The Statute of Glouc. cap. 1. is that the Disseisee shall recover damage against every one that is found tenant after the Disseisin and by the equity thereof Writ of Intrusion is founded Sometimes Statutes are expounded by Equities because Law and Reason repugn to the open sense of the words and therefore they are reformed to consonance of Law and Reason The Statute of 25 E. 3. That by exception of non tenure of parcel no Writ shall abate reacheth not to things intire as a Mannor for non tenure of any parcel of a Manor abateth the whole Writ because a man by former Law may not demand any intire thing without foreprise of such parcel as is not in the Tenants possession and therefore the Statute is understood of things several as of Acres Perches and such like The Statute of Westm. 2. of Cessavit saith Fiant brevia de ingressu heredi petentis super heredem tenentis super eos quibus alienata fuerint hujusmodi tenementa And yet if the Demandant die the Heir shall not have the Cessavit whereby they should be recovered because the Arrearages come not to the Heir in right The Statute of Glouc. ordaineth That if Tenant by the courtesie alien and against the Heir garranty be pleaded