hidden to us if the reading of the ancients were more familiar to us As though one peradventure may know the Law upon the ancient statutes yet will he never know the true reason of the interpretation of them if he know not what was the law before the making of them Majorum precepta justa vel injusta non sunt contemnenda Reg. I. C. And Coke l. 7. f. 3. Calvins case Interroga pristinam generationem The precepts of the elders be they just or unjust are not to be contemned and enquire of the former age for out of the old fields must come the new Corne for we are but as yesterday and therefore had need of the wisdome of those which were before us and we had beene ignorant if we had not received light and knowledge from our forefathers and our daies upon the earth are but a shadow in respect of the ancient daies and times past wherein the lawes have beene by the wisdome of the most excellent men in many succession of ages by long and continuall experience fined and refined which by no man being of so short a time although he had in his head the wisdome of all the men in the world in any one age could ever be effected and attained unto and therefore it is the best rule then which there is not one more true and firme Neminem oportet esse sapientiorem legibus no man ought to take upon him to be wiser then the lawes vide ibidem â—lura Monumenta quae nos Recorda vocamus sunt veritatis vetâ—statis vestigia Cok. com f. 117. A record and inrolement are the footsteps of antiquity and truth and is a memoriall and monument of so high a nature as it importeth in it selfe such absolute verity that if it be pleaded There be no such record it shall not receive any triall by witnesse by Jury or otherwise but onely by it selfe And every Court of record is the Kings Court though another may have the profit in which if the judges doe erre a Writ of error lyeth but the county Court the Hundred Court and the Court Baron and the like are no Courts of record and therefore the proceedings there may be denied and râ—ied by Jury and upon a judgement a writ of error lyeth not but a writ of false judgement becauâ—e they are no Court of record for that they can hold no plea of debt or trespass if the dâ—bt or damage amounteth to 40. s or of any trespasse vi armis Coke l. 4. f. 71. in Hindes case Records containe in themselves truth and do conclude all men to deny any apparent thing in the record as antedate c. 37. H. 6. f. 21. but to take averrment of that which standeth with the record and that doth not impugne any thing apparent in the record the law well admitteth and alloweth As against a fine upon release to say that the Connusee had nothing at the time of the fine levyed 16 H. 7. So against letters Patents of the King under the great Seale shewed in Court none can them deny but non concessit per predictas literas patentes he hath not granted by the said Letters Patents is a good Plea for though there be such Letters Patents yet peradventure nothing may passe by them and so by consequence hee hath not granted and though an inrolement or matter of record shall not be tried by the country yet the time when the inrolement was made shall be tried by the country but the inrolement it selfe shall not be drawne in question but onely the time of it as when one pleadeth a grant of the King by his Letters Patents under the great Seal and the other pleadeth non concessit by the same his Letters Patents the Letters Parents are confessed but the effect and operation of them is denied and therefore the triall shall not be where the Letters Patents beare date but where the land lyeth as it was adjudged Coke l. 6. 15. b. So if profession be denied it shall be tried by Court Christian but if the time of his profession be in issue it shall be tried by the Country 9. H. 7. f. 2. ibidem Multitudo errantium non paâ—it errori patrocinium Coke l. f. 94. a. The multitude of them who erre doth not produce a Patronage to the error As returnes and presidents which peradventure passe without challenge of the parties or debate of the Judges thouâ—h they be many if the Court adjudge them contrary to reason they shall be amended and in this case according to 5. E. 4. f. 112. presidents and course doe not rule the law but the law shall rule them and therfore it was there said That an Outlawry was reversed because that it was ad com Lancast ibid. tent and doth not say at Lancaster or such place certain to which ibid. might be referred and though there were 100. presidents of such returnes yet notwithstanding it was reversed A fortiori if there be but one or two presidents for una hiâ—undo non facit ver Dier 105. a. but otherwise it is when presidents are judiciall and Justices by diverse successions of ages have given judgements in Actions brought there for it shall bee intended that some of the counsell with the Defendant or some of the Justices before whom the action was tried and the record read would have excepted against it but returnes of Sheriffs in case of Outlawries or entries of Clarkes the records passe in silence without exception of parties and therefore are not so authenticall as judgements upon demurrers or verdicts Coke l. 4. f. 94. a. And whereas the latter judgements doe many times crosse and contradict the former there are very few presidents of such contrary judgements scarce two in an age But yet if the reasons of the latter judgement did appeare upon record we should find them grounded upon mischiefs and inconveniences arising since the former judgements or other waighty considerations respecting the good of the Common-weale in generall Sir John Davis in his Preface From Propositions A Proposition is an oration affirming or denying aliquid de aliquo something of something and is called of the Philosopher 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a pronouncing speech shewing the thing either to be true or false Negativum nihil implicat 11. H. 7. 23. Dod. E. L f. 111. There are propositions negative which imply an affirmation and those we call negative pregnants which we doe refuse in all issues of trialls by Jurors except in some cases where the necessity of the cause doth require the same and there are also propositions meerely negative which are meere negations of which we commonly say negativum nihil implicat a negative implieth nothing As the Tenant wageth law of non Summons this doth not imply that he was tenant neither shall conclude him 22. H. 6. 41. One pleadeth ne Chasa pas he did not hunt in the free Chase of the Plaintiff this is no granting that the
Laborne in his house being one of the Seriants of the City of London Frost cometh to Laborne with a Warrant from the Sheriffs to arrest the said â— upon the Capias Utlegatum which he utterly refuseth but suffereth him to goe at large upon an action of the case brought against the Sheriffs supposing that the Sheriffs arrested him and suffered him to goe at large the Defendants pleaded that they did not suffer him to goe at large and judgment was given for the Plaintiff and the verdict warranted well the count for in judgement of Law the Sheriff and his Serjeants are words equipollent amount to so much and is all one as if the Sheriffs had arrested the said B. vide ibidem plura A Writ is to the Sheriff and he returneth virtute praecepti he hath done well for it is equipollent virtute brevis 11. H 6. 16. In a Writ it is said quam clamat esse jus this equipolleth with a Fee-simple and therefore in the subsequent part of the Writ if he instanceth in a lesser estate as ex dono for life the Writ shall abare 39. H. 5. 38. Upon an Enditement for celebrating Masse contra formam Statuti 1. El I was holden that under this terme Minister a Preist was included because a Preist is bound to celebrate and minister the holy communion c. and also it was holden by all that the terme Clerk is sufficient to prove him a Preist or a Minister Dyer f. 203. b. Coke l. 5. f. 4. b. Verus antiquus redituus the true and antient rent is not to be understood of the quality incident to it but of the quantity of the rent for that is the effect and substance of the thing reserved as if the antient reservation was of rent to be paid in Gold and the novell reservation was to be paid in Silver or if a quarter of Corne was antiently reserved and now the lease is made rendring eight bushells of Corne it is all one for the Law respecteth not the formes of words or their quality but the substance and effect of the matter parum differunt qui re concordant and they differ little which agree and equipoll in substance If one maketh his Will and committeth the Administration to one by it he shall be Executor because it is all one in substance 3. H. 6. so by the grant of a Church the advowson shal passe 7. E. 3. 15. One granteth the nomination of an Advowson Habendum the advowson the Habendum is good for it is the same thing so one granteth the remainder whereas he had a reversion it is good enough to make the thing passe 6. E. 6. Ante 134. vide Ployd 157. b. If a man lease to one an acre of Land for life reserving to himselfe the herbage the reservation is void because he hath leased the same thing in substance and the profits of the Land and the Land it selfe are all one 38. H 6. 34. Words of substance and not usuall are equivalent to words of substance and usuall Ployd 140. b. As if tenant for life and his Lessor make a Feoffment in fee it is the Feoffment of the Lessee for life and the confirmation of the Lessor though there be not a word of a confirmation in it and if tenant for yeares and the Lessor make a Feoffment in fee it shall be the livery and Feoffment of the Lessor and the surrender of the Lessee and yet there was not one word of surrender And if a commoner maketh a deed to the tenant of the Land by which he renounceth the common unto him it shall enure as a release because the words are equivalent to a release So if Land be leased by Indenture for yeares and Covenants made to render and pay for the tenements such a summ it is all one as a reservation of a rent and if the Lessor say I wil have twenty pound rent and the Lessee agree or if the Lessee say I will give twenty shillings rent and the Lessor agree it is a good reservation of a rent so if a man be bound by Obligation to en feoffe I. S. and he maketh a lease for years and a release in fee he hath performed the condition because they are all one vide ibidem Yet words of art may not be supplyed by equivalent and equipollent words though they beare the same sense and substance as in an Enditement of murder voluntarie ex mulitia praecogitata interfecit is not sufficient but the word murder avit must be so in an Enditement quod quoddam tormentum in H. L. exoneravit dans eidem H.L. cum pelletto plumbeo predicto vulnus mortale Dans ei vulnus mortale c. is not sufficient but it should have been percussit which is the word of art Coke l. 5. f. 222. b. Longes case And the reason of this is given by Coke in his Preface to Littleton that words of art are so apt and significant to expresse the true sense of the Laws and so woven into the Laws themselves as it is in a manner impossible to change them neither ought legall termes to be changed SECT 4. From naturall Philosophy NExt to Logick by whose principles as by many hands we are conducted to the knowledge of the Lawes and other Sciences naturall philosophy is to be placed which is the prime and principall part of other Sciences for by the knowledge of naturall things we are instructed to observe the diversity of the actions and manners of men according to the difference of climats and various conditions of them of which any one ignorant wil be altogether unable to judge of civill and aeconomicall affaires and therefore as Mr Ployden Have the Philosophers searched so deeply into the law of nature in their lawes and writings and for the government of the people by them given precepts to follow the rule of nature and have taken nature to be as it were a foundation to all lawes Neither have the Founders of our lawes been remisse in searching out the law of nature neither were they void of the understanding of it for their lawes argue the contrary and shew that those who made them were of more great and profound judgement and as well learned in the law of nature as in all reason and in the Law of God also for nothing in our Law is ordeined contrary to nature or contrary to reason or contrary to the Law of God but according to them all Ployd 304. a. and b. And according to it hath the law established diverse grounds and maxims 1. Quae rerum natura prohibentur nulla lege confirmata sunt Reg. I. C. Marcellus Lawes which are contrary to the Law of nature lose their force and are no lawes at all Finch Nom. f. 75. Such was that of the Egyptians to turne women to Merchandise and Common wealth affaires and men to keep within doores and of the Thracians who counted idlenesse an honest thing and stealing
remotissime vana which by the intendement of the Law never cometh into act Coke l. 2. f. 5. 2. n. b. in Sir Hugh Chomleys case vide ibidem plura And hereby the way may pertinently be observed that a possibility cannot be released as if before judgement the Plaintiff in an action of debt releaseth to the baile in the Kings Bench all demands and after judgement is given this shall not bar thee to have execution against the baile because at the time of the release he had but a meere possibility and neither jus in re or jus ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute release to the Conusor all his right in the Land yet afterward he may sue execution for he hath no right to the Land till execution but onely aâ— possibility and so have I known it adjudged Coke com f. 265. b. So if A. grant to B. that if he doe such an act he shall have an annuity of twenty pounds during his life before the Act done he cannot release the annuity Coke l. 1. in Albanys case Lex semper dabit remedium the law so favoreth right that it will suffer things against the principles of Law rather then a man to be without his remedy As a man who is outlawed may bring an action to reverse it an outlawry there is no Plea 4. H. 7. 40. The Tenant shall have a replevin against the Lord that did wrongfully distraine though the beasts be come back to himself because he can have no action of trespasse against him for that prisall and shall recover damages for the tortious prisall F. n. b. f. 69. H. A man after judgement is passed against him shall plead against the King a Charter of pardon or any such thing done in the meane betwixt the verdict and the judgement because against the King he can have no Audita querela 11. H. 7.10 otherwise it is against a common person And therefore is it a principle in Law cuicumque aliquis quid concedit concedere videtur id sine quo res ipsa esse non potest Coke l. 11. f. 52. a. Which Ploydon thus expresseth that it is held as a maxime in 2. R. 2. in trespasse that if any man hath interest to any thing by the grant and assent of another and the party who hath such interest cannot have the principall thing without doing the other thing that he may doe the said other thing and justify it because it is a meanes to come to his profit for there it is holden That if one grant to me all his Trees growing in his Woods I may cut them down and carry them through all his Land and though his Grasse be spoiled with the carriage he shall not have a Writ of trespasse of it for Trees are such things that if they be not carryed by Carts he cannot have them nor make his profit of them But if one sell all his Fish in his Pond and the Vendee dig a trench so as the water may run out that by such meanes he may take the Fish an action of trespasse will lye against the Vendee because he might take the Fish by Nets or other Engines but if there had been no other meanes to take them it had been otherwise and to come to the banks to fish he may well justify it for without it he cannot take them by any meanes so as a man shall alwayes justify the necessary circumstance where he hath title to the principall thing Ployd f. 15. 16. a. vide ibidem plura in Renigers case So when a Lessor in the Lease except the Trees and after hath an intention to sell them the Law giveth to him and to those who will buy them power as incident to the exception to enter and shew the Trees to those who will have them for without entry they cannot view and without view they cannot buy Coke l. 11. f 52. in Lisords case So 19. H. 6.29 A man seised of a mese in a Burrough c. devisable deviseth it to his wife in taile and that if his wife dye without issue that his Executor may sell it and it dispose for his soule in this case the Executor may by the Law enter into the house to see whether it be well repaired or no to the intent to know at what valew he may sell the reversion And the Law giveth power to him who will repaire a Bridge to enter in the Land and to him who hath a Conduit within the Land of another to enter into the Land for it to mend as cause shall require as it is resolved in 9. E. 4.35 Coke ibidem vide plura And Coke l. 5. f. 12. a. If a man hath Mines hidden within his Land and leaseth his Lands and all his Mines in it there the Lessor may dig for them for quando aliquis quid concedit c. and this accordeth with 9. E. 4.8 that if a man lease his Land to another in which there is a Mine to wit an hidden Mine he cannot dig for it and if he doe it is wast but if he lease his Lands and all the Mines in it it is otherwise for the reason aforesaid vide ibidem plura in Saunders case If tenant at will soweth Corne on the ground and the Lessor out him he shall have free entry egresse and regresse to carry it away for when the Law giveth any thing to any one it giveth implicitly whatsoever is necessary for the taking and enjoying of the same and the Law driveth him not to an action for the Corne but giveth him a speedy remedy to enter into the Land and to take and carry it away and compelleth not him to carry it at one time or to carry it before it be ready to be carryed and if the Lessee be disturbed of this way the Law doth give unto him he shal have his action upon the case and recover his damages for whensoever the Law giveth any thing it giveth a remedy for the same Coke com f. 56. a. If there be Lord Mesne and Tenant and the Lord purchaseth the tenancy in fee the mesnalty is extinct but whereas the tenant held of the meane by five shillings and the mesne of the Lord by twelve pence so as he hath more in advantage by foure shillings he shall have the foure shillings as a rent-seck yearly of the Lord and yet he shall distraine for it for seeing the mesnalty is extinct the Law reserveth the distresse to the rent for quando lex aliquid concedit c. And therefore if a man maketh a Lease for life reserving a rent and bindeth himselfe in a Statute and hath the rent extended and delivered unto him he shall distraine for the rent because it cometh to him by course of Law Multa constituuntur in lege ne curia Domini Regis deficeret in Justitia
shall not be intended onely of a person who hath judgement of life but also shall be extended to a person convict by confession or verdict for a person attainted is a person convict and more and every greater containeth the lesser Coke l. 5. f. 115. a. It was resolved in Woods case that if a man tendreth more then he ought to pay it is good enough for every greater containeth in it self the lesser and the other ought to accept so much of it as is due unto him Quando plus fit quam fieri debet vâ—detur etiam illud fieri quod faciendum est in mâ—jâ—ri summa continetur minor when more is done then ought to be done that seemes to be done which was to be done and the lesser sum is contained in the greater Ployd f 349. b. The disseisor maketh a Lease for life and the Disseisee confirmeth the estate of the Disseisor the Disseisee cannot enter upon the tenant for life for his right was to all the estate of the Land and if he be barred of the Fee simple he is barred from the estate for life for every greater containeth in it selfe the lesser An action of battery is brought and the evidence proveth it a maime and well because it is battery and more 31. Ass pl. 1. Omne majus continet in se suum minus 28. H. 8. b. By a pardon of Murder Manslaughter is pardoned and and an attaint supposing a verdict to have passed between two Justices whereas it passed before three good enough A recovery pleaded of three acres where it was of six is good enough Finch Nomot f. 31. Where the Custome is that a man shall not devise his Lands for any higher estate then for life yet if the devise be in fee and the Devisee claimeth but for life the devise is good Dyer 150. b. Vpton by his last will in writing deviseth an entire mannor holden by Knights service in fee and it was adjudged a good will for two parts and not void for all A Quâ—re impedit in the Register is praesentare ad Ecclesiam by this he may count pro tertia parte Coke l. 10. f. 136. b. in Richard Smiths case A Procedendo supposeth an Assize before Stouse and Burton Justices and it was also before Shard and good because three containeth two Ployd Where by the Custome of a mannor a man may demise for life he also may demise to his Wife durante viduitate because the greater containeth the lesser Coke l. 4. Non debet cui plus licet quod minus est non licere Regula I. C. Cui licet quod majus non debet quod minus est non licere Coke l. 4. f 23. a. To whom it is lawfull to doe the greater thing to him it is not unlawfull to doe the lesser As where the Custome of the mannor is that Copy-hold Lands may be granted to any one in Fee-simple there the grant to one and his Heirs of his body is within the Custome for he that may lawfully doe the greater it ought not to be unlawfull but that he may doe the lesser Coke l. 9. f. 48. b. There is a great diversity between an Assignee and a Deputy of an Office the Assignee hath an interest in the Office and maketh all things in his owne name and for whom his Grantor shall not answer unlesse it be in some speciall cases but a Deputy hath no interest in the Office but is but a shadow of an Officer and doth all things in the name of the Officer and for whom his Grantor shall answer and when an Officer hath power to make Assignes he may implicitely make a Deputy for to whom that which is greater is lawfull to him that which is lesse is not unlawfull and by consequence when an office is granted to him and his Heirs by it he may make an assignee and by consequence a Deputy Sicut beatius ita majus est dare quam accipere Coke l. â— f. 57. b. There is a manifest diversity between a receiver and giver of seisin for he that hath a terme for years may receive seisin to the benefit of him which hath the Frank-tenement and all our Bookes are that the possession of a Lessee for years or guardian is a sufficient seisin for him in the reversion but he that giveth seisin is tenant of the Frank-tenement and therefore greater then Tenant for years that receiveth for it is a greater thing to give then to receive and therefore Tenant for years by his payment cannot give seisin to binde him which hath the Franke-tenement vide ibidem plura in Bredimans case Omne magis dignum trahit ad se minus dignum Coke Com. f. 44. a. b. The more worthier thing drawâ—th unto it the lesse worthy the Charter granted by H. 3. in the ninth yeare of his reigne was of force and validity notwithstanding his nonage for that in judgement of Law the King as a King cannot be said to be a minor for when the royall politick body of the King doth meete with the naturall capacity in one person the whole body shall have the capacity of the royall politick which is the greater and the more worthy and wherin there is no minority for the more worthier thing draweth unto it the lesse worthy vid. Coke l. 2. f. 68. in Tooker's case ibidem f. 285 a. Three Joynt-tenants are disseised and they arraigne an assize and one of them releaseth to the disseisor all actions personall this shall bar him but not the other for having regard to him the realty as the more worthy shall be preferred and the greater worthy draweth to it the lesse worthy ibidem 355. b. It was said that upon a recovery had by default in an action of Wast against Tenant in Dower a quod ei de forceat did not lye because in an action of Wast Damages were the principall as most antient and that therefore cleerely no quod ei deforceat did lye but it was answered that the place wasted was the worthier being in the realty then Damages that be in the personalty though more antient omne magis dignum trahit ad se minus dignum quanquam minus dignum sit antiquius a digniori debet fieri denominatio and every more worthy draweth unto it the lesse worthy though the lesse worthy is more antient and a denomination ought to be from the more worthy vide ibidem plura Coke l. 6. f. 43 b When an action is in the realty or mixt with the realty accord with satisfaction is no Plea for accord with satisfaction is a bar for the personalty but not for the realty and when the personall is mixed with the realty it is no bar for the personalty for allwayes the greater draweth unto it the lesse vide ibidem plura in Blâ—kes case Charters are put into a box this alters the nature of the box from being a Chattel and shal go to the heire and as
disseisin the law is removed from land to land beyond these degrees which writ is given by the statute of Marlebridge c. 18. though before at the common law in respect of such long possession the demandant was driven to his writ of right vide ibidem plura Vis unita fortior Ployd f. 307. a. united force is more strong as in Sharingtons case There are three causes premised to make and raise uses in lands the first is his affection for the provision of his males the second is his affection that the lands he had should remaine in his blood the third is his Brotherly love he bore to his brother whereas every one of them had beene sufficient to raise uses yet when all are put together they are of the greater force for forces united are more strong Conjunctio maris feminae est de jure naturae Coke l. 7. f. 13. Arist 1. Polit. Nuptias non concubitus sed consensus facit Vlpian consensus non concubitus facit matrimonium Coke com f. 33. a. In matrimony there is a conjunction both of the bodies and the mindes and in contracting matrimony the consent of the mind obtaineth the chiefe and substantiall parts and corporall copulation the second and therefore is it said that the consent and not the copulation maketh the marriage for every denomination is from the greater and a woman by the common law cannot consent before she is of the age of twelve yeares nor a Man untill the age of fourteen yeares and these are called annos nubiles because at that age either of them may disagree from a former marriage Coke ibidem for a marriage infra annos nubiles underneath the marriageable yeares is inchoate and imperfect to all purposes except her dower and accordingly was it resolved in Ambrosa Gorges case Coke l. 6. f. 40. a. Who being married and her husband dying before she was of the age of ten yeares was notwithstanding the former marriage adjudged to be in ward to the Queen because the former marriage was no marriage before consent and they could not consent ante annos nubiles for the consent and not the copulation maketh the marriage And therefore is matrimony defined by Britton to be assemblee del home feme alieur deux volunts a conjunction of a man and woman according to both their wils f. 246. And which as Bracton saith l. 1. c. 5. fit per mutuam voluntatem for their mutuall consent is the efficient and necessary cause of marriage and therefore a marriage enforced contrary to the will of either party is unnaturall and illegall as Kelway 19. H. 7. 52. b. Where the case is that Margaret the now wife of Keble brought an action of trespasse against Vernon to which the defendant said that he heretofore at the Church of S. in the said county tooke the Plaintiff to wife and there were married according to the lawes of the Church and demanded judgement if action to which the Plaintiff said that those espousalls were made by menaces and duresse of imprisonment and against the will of the said Plaintiff in another county and prayed her damages and after great debate whether the espousalls were avoidable by duresse or no Frowick said that he had seen the bookes and that it seemed cleerely that the espousals were well avoided by duresse and the replication vide ibidem plura And which also seemeth to be the resolve and determination of all nations for for it Romulus himselfe was upbraided to wit for forcing the Sabine Virgins against their wils to marry the Romans and was declared by his successors the Roman Authors to be a barbarous act and a crime equivalent to a rape as Propertius l. 2. El. 6. Tu criminis author Nutritus duro Romule lacte lupae Tu rapere intactas docuisti impune Sabinas Thou hardy Romulus nurs'd by brutish care And Wolvish milk was so fierce to dare To snatch the Sabine Virgins from their Sires And force them to the nuptiall of their friendes desires A Savage crime unpunisht And by Virgill more fully Raptas sine more Sabinas That is ravished contrary to the custome of all nations for in that age when Rome most flourished the customes of the Romans were the lawes of all nations as Claudian l. 4. Stil Armorum legumque parens quae fundit in omnes Imperium primique dedit cunabula juris Rome by the power of Armes and lawes doth sway The spacious universe and did wisely lay The Plat-forme and the grounds of law and right And therefore not long after by the Romane civill law the consent of the espoused parties was ratified by an oath which being but a contract was called sponsalia de futuro which also in our law at this day is of great force for by it a precontract is a sufficient cause of divorce a vinculo matrimonii Coke com f. 285. a. Vir uxor sunt quasi unica persona quia caro una sanguis unus Cok com f. 187. b. The husband and wire are but one person in law Littleton because they are one flesh and one blood as the Scripture saith and as the Philosopher are by nature conjoyned As if a joynt estate be made to the husband and wife and to a third person the husband and wife shall have one moiety and the third person the other moiety because the husband and wife are but one person in law so if an estate be made to the husband and wife and to two others the husband and wife shall have but the third part Lit. If an estate be made to a villaine and his wife being free and to their heires they have severall capacities the villaine to purchase for the benefit of the Lord and the wife for her owne yet if the Lord of the Villaine enter and the wife survive she shall have the whole land because there was no moieties between them 40. Ass Pl. 7. If a woman marry with her obligor the debt is extinct and she shall never have action against the Obligor because the suit against her husband by inter marriage was suspended and therefore being a personall action and suspended against one it is discharged against both 21. H. 7. 29. h. So is it If a feme sole baile goods to one and marry with the bailee they are the bailees good so it is if the wife buy goods of one 33. E. 3. If husband and wife purchase lands to them and their heires and the hsband alien the land c. she shall recover the whole in a cui in vita after his death and the warranty of one of them or his Ancestors is a bar of the whole against them both 39. H. 6. 45. 21. R. 2. Judg. 63. And for the same reason the husband cannnot enfeoff the wife but upon a feoffment made unto her by a stranger he may deliver seisin unto her by a letter of attorney for thereby he giveth nothing himselfe Perk. 40. If a
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
if he be an honest man Swimb f. 210. It is an observation of a Divine that oathes ex officio had their birth from Caiphas Math. 26. who who first imposed it on our Saviour in the name of the living God saying I adjure or charge thee in the name of the living God that thou tellest us whither thou be'st Christ the Son of the living God And Mr. Pryn saith that Cardinall Woolsy the highest Priest in England was the first that invented oathes ex officio in England and that they were much inveighed against by Latimer in his Sermons and condemned by the expresse words of the petition of right providing against such oathes Prin. Vind. f. 42. Impotentia excusat legem impotency excuseth the Law Coke com f. 29. a. The Law tendreth the weaknesses and debilities of others execuseth their un-abilities ultra posse non est esse because no man is able to doe more then he can do As if a man dyeth seised of Lands in fee-simple c. and these Lands descend to his Daughter and shee taketh an husband and hath issue and dyerh before any entry the husband shall not be tenant by courtesy because it was in the power of the husband to have entred but if a man be seised of an advowson or a rent in fâ—e and hath issue a daughter who is married and hath issue and dyeth seised the wife before the rent became due or the Church became void dyeth he shall be Tenant by courtesy because he could by no industry enter or attaine to any other seisin then a seisin in Law or bring it to an actuall seisin And f. 258. b Though an Hermite or an Anachorite be shut up himself so as by his order he is not to come out in person yet to avoid a descent he may command one to make claim and such a recluse may allwayes appeare by an Attorney in such cases where others must appeare in proper person and f. 263. b. An Abbot of a Monastery dyeth and during the vacation one wrongfully entreth into a certaine parcell of the Land of the Monastery claiming the Land to him and his heirs and dyeth seised and the Land descendeth to the heire and then one is elected Abbot the Abbot may enter upon the heire for by the death of the Abbot no person is able to make continuall claime and therefore a descent in that kind shall not prejudice the succession Coke l. 1. f. 98. a. If the Lessee Covenant to leave wood in the same plight the wood was at the time of the lease and afterwards the trees be sub-verted by tempest hs is discharged of his covenant by reason of his impotency and l. 4. f. 11. a. If the Lord release to the Tenant so long as I. S. hath heire of his body and sixty years passe and then I. S. dyeth without heire of his body in this case though the sixty years be passed yet the Lord may distraine for it was impossible that she should attaine to any seisin within that time and therefore the act of limitation made in 32. H. 8. doth not extend to such rent or service that by common possibility could not happen or become due within sixty years and so if Land holden by Homage and Fealty be conveyed to a Mayor and Commonalty c. in this case they cannot doe their Homage and Fealty yet though they have enjoyed the Land above sixty years if they alien the Land the Lord may distraine for Homage and Fealty 33 H 8. Br. Tit. Fealty 15. vide ibidem pluta in Bevills case and lib. 6. f. 21. b. in Butlers case It was resolved that legall imprisonment without Covin is a good excuse of non-residency in any Parson by reason of his impotency Quod remedio destituitur ipsa revalet si culpa ab sit the thing which is destitute of remedy availeth in the matter it selfe if there be no fault or laches in the party Coke l. 6. f. 68. a. As if a man be seised of a manner part of which is in lease for life and part in lease for yeares and levieth a fâ—ne to A. to the use of B. in tail with diverse remainders over in this case B. shall avow for rent or have an Action of Wast without any Attornement for when the reversion is setled in any one in judgement of Law and he hath no meanes to compell the tenant to attorne and no laches or fault is in him there he shall avow or have an Action of Wast without Attornment As if the Lord in Mortmaine or if a villaine claimeth a reversion by this claime the Law vesteth thiS reversion in him and he hath no meanes to compell the tenant to attorne and therefore he shall avow or have an Action of Wast without Attornement the same Law is of Letters Patents and of the devise of a reversion for in all those cases culpa abest there is no fault 9. H. 6. vide ibidem plura in Sir Moile Finches case And Coke l. 8. f. 172. b. in Hales case If the heire at full age tender his livery and dyeth within three months before he hath accomplished it so as the making of his homage or suing out of his livery without default in him is become impossible by the act of God he shall have as much advantage by his tender as if he had made homage or sued out his livery for impotency in this case excuseth the Law and in the judgement of the Law the interest of the King by the said limitation is determined as if the Lord had taken homage of the heire when he made his tender vide ibidem plura Coke l. 10. f. 139. b. If tenant for life or for years doth not repaire a wall of dirt so as by his default the Land is surrounded and becometh unprofitable that is Wast but if the Land be surrounded by the extraordinary rage and violence of the Sea without any default in him that is not Wast no more then if an house was burnt by lightning or subverted by the rage of the wind or tempest without default of the Lessee for impotency excuseth the party vide ibidem plura in Kighleys case So as it is regularly true that the Law tendreth the infirmities of unable persons and excuseth their impossibilities as of men illiterate out of the Realme in Prison Infants Idiots out of their sound minde as also of blind and deafe dumbe and blind If a man illiterate be bound to make a deed he is not bound to seale or deliver any writing that shall be tendred unto him and if it be Latine or other Language which he understandeth not he may demand that one read it and expound it unto him and if none be there present to read and expound it the party may refuse to deliver it for his ignorance excuseth him Coke l. 2. f. 3. Mansers case And for that reason if the Deede be read unto him in other words then are contained within
Court of Record for albeit the Grantee bringeth a Writ of Annuity he may distrain and discharge the person but if he bring a Writ of Annuity and therupon appeare and Court this is a determination of his election in Court of Records albeit he never proceed any further as if the Wife be endowed ex assensu patris if she after her Husbands death bringeth a Writ of Dower at the Common Law and Count albeit she recover not she shall never claim her Dower ex assensu patris because she hath determined her election So if the Grantee bring an assise for rent and make his Plaint he shall never after bring a Writ of Annuity and if he distrain and avow the prisall of the Distresse in a Court of Record it is a determination of his election before any judgment gâ—ven according to the rule Electio semel facta placitum testatum non patiter regressum Co. Com. 220. a. But otherwise it is where a man hath election to have severall remedies for a thing is meerly personall or meerly reall from the beginning as if a man may have an action of debt or an action of account at his pleasure and appear to it and after is non-suit yet may he have an action of debt afterwards because both actions charge the person the like Law is an assise and a Writ of Entry in the nature of assise ibidem W. brought an action of the case against F. and declared that the Defendant had sued out a Fieri facias upon a judgment given against him for the Defendant and by virtue thereof took Goods of the Plaintiff to the value of the Damage and so made his return pro defâ—ctu emptoris and that the Defendant well knowing this to the intent to trouble vex and charge him did afterwards sue out another Fieri facias to the same Sheriff and delivered it to be exexecuted who did thereupon levie the money of other Goods of the Plaintiff and paid it over to the Defendant whereby the now Plaintiff was double charged whereupon the Defendant pleaded not guilty and it was found against him and it was adjudged for the Plaintiff because he was twice vexed and disturbed and that wilfully by the Defendant who had first one execution inchoate which he ought to have followed we all knowing it and not to have taken another but if he had been ignorant and had not known of the Goods first taken he had not been lyable to the other action Hob. 37.3 Waterers case Euilibet in sua arte perito est credendum omnes prudentes eos admittere solent qui probantur ab iis qui in sua arte bene versati sunt Arist 1. Topic. c. 6. Co. l. 7. f. 19. a. The reason of the wisest man which professeth not the Lawes of England in cases which concern the Lawes of England is not to be beleived but the legall and profound reason of such who by diligence study and long experience and observation are so learned in the Lawes of this Realm as out of the reason of the same they can rule the case in question in this sense this rule is to be taken that we are to beleive every one in his art and all wise men are wont to admit those things which are approved by them are well versed in their own Art Coke l. 4. f. 29. a. Agnes was contracted to Bunting and after married Twede Bunting libelleth against Agnes in the Court of Audience upon the said Contract and upon the proceedings of which Libell it was decreed that the said Agnes should undergo marriage with the said Bunting and thereupon it was pronounced decreed and declared the said marriage with Twede to be null And though that Twede being de facto husband of the said Agnes was neither party to the said Suit nor to the sentence in the Spirituall Court which dissolved the marriage between him and the said Agnes but rhe said Agnes only yet the sentence against the Feme onely being onely declaratory was good and shall bind the Baron de facto and in regard that the Cognisance of marriages appertain to the Ecclesiasticall Court and the same Court had given sentence in this case the Judges of our Law ought to give faith and credit to their proceedings and sentence although it be contrary to the reason of our Law and to think that their proceedings are consonant to the Law of the holy Church for we are to beleive every one is skilfull in his art vide ibidem plura Coke l. 5. f. 7. in Caudries case Quod quisque norit in hoc se exerceat Co. l. 9. f. 13. a. Let every one exercise himself in that which he hath knowledge and skill It is the wisdome of the Law to refer things to persons in which they have knowledge and shall be expert and therefore the Law will not constrain the Jurors which have no knowledge in the Law to take upon them Cognisance of the points in Law or in cases which concern Life Member or Inheritance Frank tenements Goods and Chattels but to leave them to the consideration of the Judges nor the Judges to give their opinion of questions and doubts in Law upon a suddain but in all cases to have the truth of the case and upon conference and consideration to adjudge according to the Law Coke l. 8. f. 130. a. The intent of the act of 5 Eliz. c. 4. was that no man should take upon him any Art Mystery or any Occupation but such in whom is science and knowledge and therefore the statute intended that he that used any Art Mystery or any occupation at the time of the act might use the same art or mystery for every one is to exercise himself in that art which he knoweth And it was said that the Brewers should have science and skill in brewing good and wholesome Beer for it greatly conduceth to the health of men Ployd f. 128. b. Alwaies our Predeceossors for the sense of latine words have consulted with the Grammarians and others who have knowledge therein and that sense which the Grammar warranted they have allowed as 9 H. 7. 14. One was bound in an Obligation upon the condition that he should pay five pounds in fine Gold and the Obligation was puri auri and there it appeareth that the Masters of Grammar were sent for to give their counsell what was latine for fine Gold vide ibidem plura Coke l. 11. f. 10. b. Matters in Law shall be put in issue to be tryed by the Country for sicut ad quaestionem facti non respondent judices ita ad quaestionâ—m Juris non respondent juratores As the Judges do not answer to the question of fact no more do the Jurors answer to the question in Law and if the Jurors take upon them the Cognisance of the Law and find the speciall matter mistake the Law the Judges of the Law shall give judgment upon the speciall matter according to
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
who made the rescous by action of the case but if he had been a Bayliff of a Liberty it had been a good returne The Prior of St. Joanes had a priviledge from Rome that he shall pay no Tythes for any Land quae propriis manibus aut sumptibus excolitur which is tilled with his owne hands or at his owne charge The Prior maketh a Lease for yeares before the dissolution the King after the dissolution granteth the reversion it was holden that after the terme expired the Patentee should hold it discharged si propriis manibus aut sumptibus excolitur if it be tilled by him or his servants but if he make a Lease to a farmer he shall pay tythes by the Stat. of 31. H. 8. c. 13. Dier Entry with my beast is my entry and so the Plaintiff shall declare upon a clausum fregit 15. E. 4. 29. 1. E. 4. 15. If a mans servant selleth to me cloth and warranteth it to be of a certaine length the action will lie against the master onely and not against the servant and if A do assume to cure B. of a wound and he sendeth his servant to B. to lay medicines to the wound whereby he is hurt and emparied B. shall have an action against the Master and not against the servant Fulb. l. 1. f. 4. 11. E. 4. 6. By Choke and Brian The Chancellor of the Augmentation Court delivered an obligation made to Queene Mary to his Servant to deliver to the Clerks of the Augmentation The Obligor and his servant conspire together and cancell the obligation the Master was held in this case to be chargeable Dyer 161. If a receiver or Bayliff make a deputy the Writ of account shall be brought against the Bayly only because the mony was received to his use 18. H. 8. 2. Fulb. l. 2. f. 43. A lease for years is made and a letter of Attorny to deliver possession to the Lessee if the Attorny deliver possession to the Attorny of the Lessee it is a good possession and pursuing his authority 25. Eliz. The Earle of Leisters Case Yet many personall things cannot be done by another as Sute reall at the Leete Exception or the Sheriffs turne cannot be done by another Fuâ—b l. 25 2. A man cannot excuse himselfe by an Attorny for contempt as for not serving the Kings Processe but in proper person 22. E. 4. 34. An action of debt upon an obligation the Defendant confessed the Deed and said that he had paid the summ to one C. the generall receiver of the Plaintiff who said he was ready to receive the mony and shewed to the Court the acquittance but because he shewed no warrant of the Plaintiff to pay the money to C. the acquittance that was shewed could not be the Deed of the Plaintiff and therefore the Plaintiff recovered his debt and damages 5. E. 3. 63. Fulb. l. 1. f. 4. Quod per me non possum nec per alium Coke l 4. 24. b. What I cannot doe by my selfe I cannot do by another Custome hath so established and fixed the estate of the Copyholder as by the severance of the inheritance the Copyholder of the Mannor is not distroyed for in that the Lord himselfe cannot oust the Copy-hold no more can any one claiming under him doe it for what I cannot doe by my selfe I can do by another vide ibidem the case between Marrell and Smith Coke l. 11. f. 87. a. In the case of Monopolies A patent was granted by the King unto Edward Darcy for the sole making of Cardes who had made a deputy but it was held void to both for in that it was voide to the Grantee because he was inexpert and the grant made void to him he could not make any expert deputy to supply his place for what I cannot doe by my selfe I cannot doe by another Accessorium non ducit sed sequitur suum principale An accessory doth not leade but followeth the principall Co. Com. 152 a. The incident shal passe by the grant of the principall but not the principall by the grant of the incident As a lease for terme of life rendring rent the Lessor granteth a reversion to another the tenant aturneth all the rents and services shall passe by the word reversion but if he grant the rent to another the Reversion shall not passe by it Littleton ibidem a Lease of a Mannor wherein is a Parke and Fish-ponds excepting the game and after the Lessor grants the reversion the Deeres and Fish shall passe as incidents with the reversion A Statute new made gives an action where none lay before the same Processe Judgement and Execution shall be in the same action as was in other cases at the common Law though the Statute say no such thing 10. H. 7. 10. Coke l. 5. f. 21. b. A Parson is bound to a Prior in one hundred pound upon condition that he resigne his Church within a certaine time to the Prior for a certaine pension as they should agree c. and afterwards the Prior and the Parson agreed of a pension of an hundred shillings and yet the Parson refused to resigne and by the whole Court it was holden that he needeth not to resigne untill he was sure of his pension by Deed. Ployd 235. a. When a man hath a thing by reason of another the thing which comes by reason of the other shall be said to be had in the same capacity as the other was which was the cause of it as 41. E. 3. f. 21. If a Bishop having a villain in right of his Church enter into the Land purchased by the villain he shall retaine it as in right of his Church So if the King have a signiory in right of the Crowne and the Tenant seise and disclaime by which the King recovereth the tenancy he shall hold it in right of the Crowne because in that right he held the signiory which was the occasion of the Recovery ibidem Williams case Noxa caput sequitur accessorium sequitur suum principale Reg. I. C. The offence looketh on the head and the accessory followeth the principall Coke l. 4. f. 44. b. Every Felon is either a principall or an accessory and if there be no principall there cannot be any accessory because the accessory followeth the principall and therefore was Vaux held by the Court to be a principall murtherer although he was not present at the time of the receit of the poison and if any other had procured Vaux to do it he had been accessory vide ibidem plura Vaux Case Coke Com. 57. a. b. In the highest and lowest offences there are no accessories but all principalls as in Riots Routs and forcible Entries and in other transgressions vi armis So in the highest offence as crimine laesae Majestatis there are no accessories And by our Law in murther all that be present aiding abetting or comforting him doth the murther are principall offenders though they
diversi desiderantur actus ad aliquem statum perficiendum plus respicit lex actum originalem when to the perfection of an estate or interest diverse Acts or things are required the Law hath more regard to the originall Act vide ibidem Lamperts Case When a man seised of Lands in Fee-simple or Fee-taile generall taketh a Wife to the perfection of her Dower two things are requisite lawfull matrimony and the death of her husband and if baron and feme levy a fine the feme is barred of her Dower because that the intermarriage and seisin are the fundamentall causes of Dower and the death of the baron onely the execution of it for the beginning is the principal part upon which all others are founded and therfore in such case if baron and feme grant a rent by fine out of the Land or make a lease for years rendring rent to the baron and his heires and then the feme recovereth Dower shee shall hold that charge with the rent and with the terme and the opinion of Ployden in Stowells case 373. is not holden for Law as appeareth by Dyer f 72. and in Damports case Dyer 224. it was adjudged to the contrary 2. H. 4. and now common experience without contradiction is against it and so Littleton in his Chapters of conditions f. 83. holdeth that if the Feoffee upon condition taketh a wife the Feoffee may enter for the condition broken and the reason is for that the Law hath a principall regard to the originall and fundamentall cause and yet it may be said that the title of dower is not consummate untill the death of the husband and peradventure the feme might die before the Baron vide ibidem plura So things are construed according to that which was the beginning thereof as one maketh me sweare to bring him mony to such a place or else he will kill me and I bring it him accordingly this is fellony in him 44. E. 3. 14. b. So if he make me sweare to surrender my estate unto him and I doe so afterwards this is a disseisin to mee 14. Ass Pl. 20. One imprisoned till he bee content to make an obligation at onother place and afterward he doth so being at large yet he shall avoid it by duresse of imprisonment 21. E. 4. 68. b. Outlawry in trespasse is no forfeiture of Land as outlawry of felony is for though the not appearing is the cause of the outlawry in both yet the force of the outlawry shall be esteemed according to the hainousnesse of the offence which is the principall cause and foundation of the processe 3. E. 3. 84. A man and feme sole have a villaine and afterwards enter-marry and the villaine purchaseth Land they shall not have lands by intierties but by moieties joyntly or in common as they had the villaine in the beginning Coke l. 5. f. 47. a. In Littletons case upon the generall pardon of 35. Eliz. Whether upon a bill exhibited in the Star-chamber before the Parliament and processe awarded returnable after the Parliament the suit shall be said to be hanging by bill before the returne or serving of the processe and it was resolved that it was because the bill is origo caput sectae the bill is the beginning and head of the suit Cujusque rei potissima pars principium est origo rei inspici debet Coke com f. 298. b. whereof he saith you shall make great use in the reading of our bookes A disseisor hath issue and entreth into religion by force of which the tenements descend to the issue in this case the disseisee may enter upon the issue because the discent of the issue was by the Act of the father and not by the act of God and the Law respecteth the originall Act which is his entry into religion whereas a descent doth not take away entry unlesse it commeth by death Littleton ibidem An escrowe is delivered by a feme sole if she marry or die yet by relation to the beginning it shall be good 14. 4. H. 2. Lessee for yeares is bound to I. S. to make him the best estate he can and afterwards the reversion falleth to him the Lessee shall be discharged of the Bond if he grantteh the estate he had at the bond making 12. H 8. 5. A stranger abateth after the death of the father the son dieth his wife shall not have dower for this abatement shall relate to the death of the father 21. E. 4. 60. An attainder by Act of Parliament hath relation to the first day of the Sessions 35. H. 8. b. Presentment tempore belli is not good to gaine possession from the right patron though the induction was tempore pacis Coke l. 2. Binghams case and l. 11. f. 99. b. And such an usurpation shall be construed to be in time of War A blow given by one at the time of non sanae memoriae though the party die when he is fanae memoriae it is not capitall Ployd D. Hales case So if a man of non sanae memoriae giveth himselfe a mortall wound and becommeth sanae memoriae and dieth he shall not be felo de se Coke l. 1. Shellies case f. 99. b. A man buyeth certaine beasts in Market which were stolen and selleth them out of the market and the Vendee giveth him a Crowne in earnest and afterwards they are brought into the Market and agreeth to his bargaine and payeth all his mony and also payeth toll for the beasts the property is not changed for the bargaine shall have relation to the first communication Dier f. 99. b. Tenant for life upon condition that if the Lessor die without issue the Lessee shall have see the Lessee entereth into religion and the Lessor dieth without issue the Lessee is dereyned he shall never have fee because at the time of the performance of the condition the fee could not vest in him Ployd f 489. a. In case of attainder by verdict for felony it shall have relation to the time of the fact done 30. H. 6. 5. Lands given in franke-marriage reserving a rent the reservation is void untill the fift degree is passed 26. Ass Pl. 66. One hath a Rent charge going out of his wifes Land the grantee leaseth to the husband and his heires the husband shall not have it but it shall inure to him by way of extinguishment onely as seised in right of his wife 14. H. 8. 6. The wife endowed by the heire is said to be immediately in by the husband and if the husband were a disseisor and the heire in by dissent yet the disseisee may enter upon the wife Littleton The executor refuseth the Administrator may have an action of trespasse for the goods taken out of the possession of the Executor supposing they were taken out of his possession 38. H. 6. 7. A Recovery without an originall is void and judgement given in Chancery without originall is void and an outlawry
part of my father but oâ—herwise the release is good without any averrment for the thing was certainly expressed by the first woâ—ds in which case other words were needlesse and superfluous and in vaine were it to expresse that by more words which may be expressed by fewer and 30. Ass Pl. 8. Lands given to two uni eorum diutius viventi and to the longer liver of them they make partition and one of them dyeth the Lessor shall have againe the moyety of him that dyed for uni eorum diutius viventi are but idle words Omnis propositio est aut verae aut falsa every proposition is either true or false truth as it is a congruity of an entity with the intellect instrumentally appertaineth to Logick because it directeth the minde to apprehend the truth of things and is opposite to falsity contradictorie especially in propositions for all propositions are either true or false Quae ad idem secundum idem similiter eodem tempore nunquam possunâ— simul esse verae which to the same according to the same after the same manner and in the same time never can be both true Fucatus erroâ—â—uda veritate in multis est prohabilior sepenumero multis rationibus vertiatem vincit Arist Coke l. 2. f. 72. Painted error in many things seemeth more probable then truth and oftentimes with many reasons overcometh the truth therefore hath the Law a great reâ—pect to verity and requireth that it be acknowledged and confessed in all actions under the penalty of a mercement and accordingly if the tenant doth not render the Land to the demandant as he was commanded by the Writ but persistâ—th in defence of it till judgement be given against him by the Law he is to be amerced Coke l. 5. f. 49. Va gâ—ans case And therefore one of the chiefest things which the Law requireth in counts is verity and if it appeare to the Court that falsity is uttered in lieu of verity the party which sheweth it hath annoyed and confounded himselfe Ployd f. 84. b. And therefore if a man bring an Action of debt for two payments at two dayes where one of them is not come by the shewing of the Plaintiff himself he hath by it abated his own writ because that he hath shown a falsity T. 9. H. 7. 3. And so in our case he hath grounded his matter upon a Statute by him recited where it appeareth judicially that there was no such Statute made at that time and so he hath abated his count by his own shewing ibidem Partridges case and sâ— p. 20. H. 6. f. 30. A writ of Champerty was brought which was not warranted by any Statute and there Newton said that if the party cannot shew unto them any Statute by which it was warranted that they will award that the writ shall abate And therefore abundance and reciting more then needeth shall many times hurt the party as T. 20. H. 6. f. 42. A man brought a writ for forging of false deeds and the writ was diversa facta munimenta and he counted but for one onely and by the assent of all the Justices it was awarded that the writ shall abate because the writ was for diverse Deeds and he counted but for one vide ibidem If the Writ vary from the Obligation or other specialty in name or sur-name or such like the Writ shall abate 11. E. 4. 2. As in an action of debt for twenty pound and he declareth but for ten pound both shall abate 8. E. 4. 2. An Essoine or protection varying from the originall Writ in the quantity of the tenancy or the name of the party shall be quashed 4. Ass pl. 1. 2. H. 6. 3. A Chancellors servant bringing a Writ of priviledge varying from the originall Writ as if the originall be a Writ of Trespasse and the priviledge in a Plea of debt or the originall be in an action of debt of 44 l. and the Writ in a Plea of debt 42 l. it shall be disallowed 7. H. 6. 22. Lex non requirit verificari quod apparet curiae Coke l. 9. f. 54. b. The Law doth not require that to be verified which appeareth to the Court though the Law of England be more precise in the forme of pleading then any other forraine Law as well in counts as bars wherein averrements and offers of proofes are commonly concluded as in counts the course of declaration is in the beginning of every action to offer their witnesses and therefore the conclusion is allwayes inde producit sectam which secta or suite in Law language is nothing but witnesses to prove his action as Mr. Selden upon Fortescue accurately observeth c. 21. f. 23. And so also in bars the Law doth also require that all affirmative pleadings in defence to the intent the issue and point which cometh to be tryed might be evident and cleere to the Jury should be averred that is an offâ—r made of proofes Yet Qâ—od constat clare non debet verificari that which plainly appeareth ought not to be verified Coke l. 9. f. 54. b. in Batens case As if an infant bring an assize of Mortdancester it is needlesse to aver that he is within the time of limitation for it appeareth by the infancy of the Plaintiff and 46. E. 3. In Trespasse of taking monies it is needlesse to shew the value because it appeareth vide ibidem plura Floyd f. 87. b. It is pleaded that the Lessee did surrender to the Grantee of the reversion it is needlesse to pleade an atturnement for a surrender is an atturnement and more H. 13. H. 7. 11. by Keble vide ibidem plura in Partridges case Et manifesta probatione non indigent Coke l. 7. f. 40. a. b. M nifest things need no proofe as if the Father tenant by Knights service enfeoff his Son and Heire apparent within age it needeth not to aver it to be collusion for it is apparent Wimbich case Ployd 27. H 8. Dacres case So if I covenant to stand seised to my Wife Son or Cosin it is good to raise an use without expresse words of consideration for sufficient consideration and his Fatherly love appeareth vide ibidem plura Non refert quid ex aequipollentibus siâ—t it is a rule of Law and reason It mattereth not what is done by equipollent or words which amount to such a value Coke l. 5. 122 a Longs case It was an exception taken to an enditement in that case that they gave him unum vulnus mortale one mortal wound whereas it should have been plagam one mortall stroke but it was disallowed by the whole Court and said that these words were Synonimas and signified the same though that plaga is the most usuall word in an Enditement f. 121. vide ibidem plura Coke l. 5. f. 89 a Frostes case A Capias Vtlegatum was brought to the Sheriffs of the city of London against B. who was in custody of
remainder is appointed in fee to the right heires of I. S. who dieth having a daughter which entreth after the death of tenant for life there the son after borne shall not recover the lands before vested in the daughter as purchased for thereit is a fee simple to which the son after born hath no right for the lands were in none of his Ancestors before But where the estate is an estate taile the son ought to have it per formam doni As if a feme which suffereth a recovery by covin contrary to the Statute of 11. H. 7. is defeated by entry of the daughter tenant in taile the son borne may enter and oust the daughter for that the title in taile is in him because the statute saith he shall enjoy it according to the title which is in taile and therein the common proverb is verified One shall beat the bush and the other have the bird As if a man hath land by descent of the part of the mother and maketh a feoffment on condition and dieth without issue and the heire of the part of the father entreth the heire of the part of the mother may oust him Ployd 56. b. and 57. a. In Wimbish case quod vide Infinitum injure reprebatur Coke l. 6. f. 45. What is infinite is reproved and rejected in law As if a man have a debt by simple contract and taketh an obligation for the same debt or any part of it the contract is determined 3. H. 4. 17. 11. H. 4. 9. and 9. E. 4. 50. 51. So if a man have a debt upon an obligation and by course of law hath a judgement upon it the contract by specialty is changed into a thing of record for if he that recovereth should have a new Action or a new judgement he may have infinite Actions and infinite judgements to the perpetuall charge and vexation of the defendant and he shall not have a new Action or a new judgement for what is infinite is rejected in law So upon every judgement the defendant shall be amerced and if he bee a Duke Marquess Earle Viscount or Baron he shall be amerced 100 l. and so the defendant should be infinitely amerced upon an obligation which shall be mischievous Ibid. And lib. 7. f. 45. b. It was resolved in the Court of Wards by the greater part that a Bill of reviver upon a bill of reviver shall not be admitted by reason of the infiniteness which is rejected in law And lib. 8. f. 16. b. When the first office is found against the King and the melius inquirendum also the King is bound nor to have any melius inquirendum for the same matter because there should be no end of it and that such writs might issue infinitely and infinity is condemned in law Nihil tam conveniens naturali aequitati quam voluntatem domini volentis suam rem in aliam transferre ratam haberi Bracton f. 18. God hath given to man all the land terram dedit filiis bominum So men by Gods endowment are made Lords of the land and what property a man hath in lands by law by the law of God also he hath dominion of it and therefore every man who is the lawfull owner of land may grant to what person in what manner and for what time it pleaseth him for if the land be subject to man then is it subject to his will for the will cometh from the mind which is the principall part of man because it directeth the body and all things he hath and if his land be subject to his will this his will is a sufficient consideration by which his land may pass as his will is and there is no greater consideration then the will Ployd f. 308. b. And nothing is more agreeable to naturall equity then to ratify the will of the Lord willing to transferr his substance and estate over to another And therefore at the common law the intention and will of the parties was the direction of uses for they were onely determinable and to be adjudged by the Chancellor which is the Court of conscience and equity and there is nothing more agreeable to equity then that the will of the Lord or owner and the meaning of the parties should direct the uses 31. H. 16. Tit. subpaena Fitz. 23. A man being ceste que use and having one sole daughter declared his intent and meaning to the Feoffees that after his decease his daughter should have his land and for it question was made in the Chancery whether the limitation of that use made to the daughter might be revoked and in reasoning of that case Fortescue held opinion that if ceste que use had issue a daughter and being sick declared his intention to his feoffee that his daughter shall have his land after his decease and after hee recovered his health he had issue a sonne now saith hee it is good conscience the sonne should have the Subpaena because hee is heire for conscientia dicitur a conset scio quasi simul scire cum Deo that is to know the will of God so neere as reason will and the intention of the parties is to direct the uses according to a conscionable and benigne construction Coke l. 1. f. 100. a. b. vide ibidem plura As a gift in taile may bee made upon condition that tenant in taile may alien for the profits of his issue and good and hee may alien notwithstanding the Statute of W. 2. because in that case voluntas donatoris observatur The will of the Donor is observed Coke com 224. b. If Lands be given to B. and his heires Habendum to him and the heires of his body or if given to him and the heires of his body Habendum to him and his heires he hath estate taile and a fee expectant but if Lands bee given to B. and his heires if B. have heires of his body and if he die without heires of his body that it shall revert to the Donor it is an estate taile and the reversion in the Donor for voluntas donatoris in charta doni sui manifeste expressa est observanda The will of the Donor manifestly expressed in the Charter of the gift is to be observed Coke com f. 21. a. If a common person doth without consideration give to I. S. his goods indefinitely all his goods doe pass 21. E. 4. 25. Alba of Waltams case by Brown and Genny If the King doe grant to one lands ex mero motu and though his Highnesse doth rehearse some consideration in the patent of his grant which is not true as if the consideration bee that whereas the Grantee hath done his Majesty good service on the Sea or beyond the Sea or in his Wars though the consideration bee meerely supposed and therefore no good consideration in Law yet the words ex mero motu doe make the Grant good 26 H. 8. 1. by Fitz. And if a common person doe by deed
Ed. 1. before the Statute de prerogativa regis which was made in the seventeenth year of E. 2. a long time after Britton writ which was but a declaration of the common Law Coke l. 4. f. 126. a. Neither doth this impugne the Maxime of the common Law for in this case he that is non compos mentis in no Plea that he pleadeth shall stultify or disable himselfe but all this shall be found by office by the inquisition and verdict of twelve men at the suite of the King who are not concluded to say the truth and such and office when it is found shall have relation a tempore nativitatis to avoid all mesne Acts made by one who is non compos mentis as Feoffments Gifts Leases Releases c. And after such office found if he be sued in an Action upon an obligation or writing which he hath made the King by his writ so long as the office be in force reciting the office shall command a Supersedeas to the Justices where the suite is commenced but if one of non compos mentis dye before office found after his death no office may be found and in this sense is the rule of Bracton true furiosus stipulari non potest nec aliquid negotium agere quia non intelligit quod agit A mad man cannot promise or contract for any thing or doe any businesse because he understandeth not what he doth but all such Acts may be avoided either by the King or his Heires Coke ibidem f. 126. a. b. With which the civilian rule accords furiosus nullum negotium contrahere potest But in case of non compos mentis the King hath not any interest in the Lunatick as he hath in the Idiot for that the Lunatick may recover the memory which he hath lost and therefore in the case of an Idiot the Law saith Rex habebit custodiom the King shall have the custody but in the case of non compos mentis Rex providebit the King shall provide one to have a care and charge that he that is non compos mentis and his family shall be maintained and that nothing shall be spoiled without taking any thing to his owne use but all to the use of the non compos mentis and his family and that he shall not cut down trees but for necessary House-boot Plow-boot and Cart-boote and to repaire ancient Pales as appeareth in the case of Dyer 25. b. In Trespasse against Homes quare clausuum fregit and did cut down Trees in Padington c. of one John Francis c. the Defendant pleaded that the said John Francis was a Lunatick by which the King seised his Lands by commission c. and by his Letters Patents granted custodiam gubernationem praedict Fr. sine computo reddendo the custody and government of the said Francis without rendring an account c. and he prayed aid of the King and upon demurrer it was denied and the diversity taken between the seiser of the Lands of a Lunatick and an Idiot for in the first case the King nor the Grantee shall not have any profit but they are bound to finde necessaries for him c. by the prerogative of the King but in the other case the King and his Grantee shall have the Lands to his own profit and Fitzberbert held that the Lunatick should have an account when he came to his good memory sed fuit negatum Ibid. f. 26. Pl. 164. But it seemeth by Coke lib. 4. f. 127. that he shal be accountable as a Bayly to him that is not compos mentis or to his Executors or Administrators And the King shal have the protection of an infant as well as of his Land F. n. b. 232. b. But the King shal not have the lands that the Idiot holdeth by copy for that is but an estate at wil by the common law and if the King should have the custody of it it should be a grand prejudice to the Lord of the Mannor and yet notwithstanding an alienation made by the Idiot of the copy-hold after Office found shall be avoided Dyer 302. Coke ibidem f. 126. b. But there are some acts done by a man of non compos mentis that shall not onely bind himselfe but his Heires and Executors also and therefore if he levy a fine or suffer a common recovery or acknowledge a Statute or Recognisance neither his Heire nor Executor shall avoid it for those are matters of record and cannot be avoided by a nude averrement of non sanae memoriae for the inconvenience that thereupon may ensue also such an averrement is against the office and dignity of a Judge for he ought not to take any cognisance of a fine or recognisance of him that is non compos mentis and therefore all acts that he maketh in Court of record shall bind himselfe and all others for ever and shall not have a releife in equity because it is against a ground and principle in Law that no man shall disable himselfe and if the Judge were not compos mentis yet all the Fines Judgements and all other Records which are before him shall be good because they are matters of Records Cbichell Copy-holds Vim vi repellere licet Coke com f. 162. It is lawfull to repell force by force and that by the Law of nature according to the civil rule adversus periculum naturalis ratio permittit se defendere naturall râ—â—son permitteth to defend himself against danger which is manifest in Beasts which though they have not the substance and reason of the Law yet have they a certaine shadow of it and which is not onely observed in Beasts but also in infants and children But yet as Coke in the same place saith must it be done with this caution moderamine inculpatae tutelae non ad sumendam vindictam sed ad propulsandam in juriam with the moderation of an unblameable defence not thereby to take revenge but to repulse the injury In trespasse of an assault and battery for Beasts taken the Defendant said that to all but the assault he was not guilty and for the assault he said that before the trespasse the Defendant was possessessed of an horse as of his proper Goods and of it was possessed till the Plaintiff took it out of his possession and the Defendant the same day and year requested it of the Plaintiff but the Plaintiff said that he would not deliver it and the Defendant said if he would not deliver the horse to him he would retake it in spite of him and presently took a staff which was lying on the ground and went towards the Plaintiff with it which is the same assault of which the Plaintiff hath conceived his Action Judgment if Action and the opinion of the Judges was that the assault was justifiable Kelloway 22. H. 7. f. 92. If two fight together on a suddaine and before a mortall wound be on either party the one
that it may appear to the Court that it is granted pro negotiis regni pro bono publico for the common profit of the Realm and as Britton saith for our service as to be in our force and defence of us and our people Coke comm f. 130. And it is a rule in the Civill Law which for the reasonableness of it all Nations follow Eorum qui in potestate paiâ—â—s â—unt sine voluntate ejus matrimonia jure non contrahu â—ur sed contracta non solvuntur They who under the power of their Father cannot lawfully contract Matrimony without their will and consent but being contracted are not to be dissolved Contemplatio enim utilitatis publitae privatorum commodis pâ—aefertur For the consideration of the publick good is to be preferred before private profit Fulâ— Pand. f. 28. Finis legis pax est Ployd f. 388. The Justice said that peace and concord were the end of all Lawes and for peace the Law was made And Dyer said that for peace Christ descended from Heaven on Earth and the Divine Lawes of the old and new Testament were given for peace Bacon H. 7. f. 233. And Bacon saith When Christ came into the world peace was sung and when he went â—ut of the world peace was bequeathed And Weston cited S. Aug. Concordia stat augetur respublica discordia ruil diminuitur By concord the Common weale standeth and flourisheth and by discord it is diminished runneth to ruine And Cataline said that the Charriot wherein Peace was carried was unanimity the Rector of the Charriot Love the Horses which drew it Concord and Utility and her company and consorts were Justice and Truth and Diligence and her incidents were the attainment and advancement of all Arts and Sciences and therefore peace which bringeth so many commodities ought to be preserved above all other things And Dyer said that it was one of the Atticles to which the King is sworn at his Coronation to his subjects to do that he preserve the peace for nothing of greater benefit he cannot grant to them And therefore those Lawes which bring the more peace are the more to be esteemed as the Law is touching fines which bringeth to the Possessors of Inheritances security and maketh the certainty and therefore Carus said they were the more worthy because certainty engendereth repose and incertainty contention and to avoid incertainty in Inheritances Fines were devised by the Founders of our Lawes at the beginning of Law for no point of our Law is of greater antiquity and for it Glanvill was cited by Cataline who lived in the time of Richard the first that Contingit aliquando loquelas motas in Curia domini regis per amicabiâ—em compositionem finalem concordiam te minari sed ex licentia regis vel ejus justiciariorum It happened sometimes that Libells and Suites moved in the Court of the Lord the King were ended by a loving composition and finall concord but by the licence of the King or of his Justices And Bracton therefore is it called a finall concord because finis finem litibus imponit because a fine putteth an end to all Suits vide ibidem plura And for the same reason are Recoveries advanced by the Law above all other assurances even fines themselves and as Bacon are the greatest security Purchasers have for their monies for a fine will bar the Heir entail but not the Remainder but a common Recovery barreth as well Estates taile as also all Reversions and Remainders expectant an dependant except in the Kings case where the Remainder or Reversion is in the King and then by the Statute of 34 H. 8. it barreth neither the Estate tail nor the Remainder saving where the King is the Giver of the Estate tail and leaveth the Reversion to himself Bac. Vses f. 52. 53. and Dr. Student l. 1. c. 26. And therfore by the Statute of 23 Eliz. c. 4. It s provided that for the avoiding the danger of assurances and for the advancement of common recoveries that every common recovery shall not be avoided for any want of form in words and not in matter of substance So the common Law is the preserver of peace and abhorreth all force as a capitall enemy to it and therefore is more severe against those which commit any force and subjecteth their bodies to imprisonment whereas at the common Law upon a recognizance or judgement for debts and damages a common person onely shall have execution of his Goods and Chattells and of the Corne or other present profit groweth upon the Land but it is a rule at the common Law that in all Actions Quare vi armis a Capias lyeth and where a Capias lyeth in Processe there after Judgement a Capias ad satisfaciendum lyeth which is the highest execution by which he shall loose his liberty untill he hath made satisfaction to the party and fine to the King and the King shall have a Capias pâ—o fine Coke l. 3. f. 12. a. in Herberts case vide ibidem plura And therefore all actions upon the case for corporall injuries as forcible Entries Assaults and Batteries which tend to the breach of the peace may not onely be pursued by action but Enditement and are more severely and largely taken and punished by the common Law As if foure men enter into Land and one of them entreth by force this is force in them all and may be impleaded by action or impeached by enditement 2. E. 3. 12. Communis error facit jus a common error maketh right Dr. Stud. c 26 f. 46. The Law so favoureth the publick quiet that it will permit a common error to passe for right and therefore though it be objected that common recoveries were fâ—rst had upon feyned and unlawfull ground and against the good order of conscience neverthelesse for as much as they have been used a long time so as they have been taken of diverse men that have been right well learned in manner as for Law that the buyers partly are excused so that they be not bound to restitution and therefore Ployd in Manxells case f. 2. whâ—ther a common recovery barreth an estate taile is not to be disputed because a great part of the inheritance of the Realme depend upon it So an acquittance made by a Mayor in his own name where the Towne is incorporate by the name of a Mayor Sheriff and Burgesses shall be allowed for good if there be an hundred precedents and more of like acquittances that is for common quietnesse and accordingly the Civilian Bodin saith l. 2. de repub Diuturnitas temporis efficere potest ut quod pernitioso more exemplo inveteravit potentius ipsa lege dominetur the long continuance of time may effect that what by pernitious example Custome hath grown old may rule more powerfully then the Law it selfe and therefore as learned Patricius saith Concedendum est aliquid consuetudini
of false imprisonment because that he is Iudge of the Cause 14 H. 8. 16. Factum a Judice quod ad ejus officium non pertinet ratum non est Reg. I. C. Coke l. 10. f. 76. b. Judicium a non suo Judice datum nullius est momenti An act done by a Iudge which doth not appertain to his Office is not allowed and a Judgment given by him is not his proper Iudge is of no weight nor moment As if the Sheriff who is prescribed by the Law to hold his Turn within a month after Michaelmas holdeth his Turn after the moneth and taketh an Indictment of robbery at the same Turn and the Indictment is by a Certiorari removed into the Kings Bench by advice of all the Iustices the party so indicted was discharged because the Indictment was utterly void coram non judice because at that time the Sheriff had no authority to hold it And if a man have a Leet which is holden at a day certain if he hold it another day such Court so holden is void and without Warrant but it is otherwise of a Court Baron Coke ibidem but if the Court of Common Bench holdeth plea without an Originall it is not void for they are Iudges of those pleas and it cannot be said that the proceeding is coram non judice 19 E. 4. 8. Iudgment in the Marshalsey when none of the parties be of the houshold of the King may be avoided by plea without any Writ of Error which proveth that it is void 6 N. 2. So in Trespass before the Marshall if none of the parties be of the houshold of the King it is coram non judice because they passe their power 29 E. 4. 16. If one of the Queens houshold sue another of the same houshold and the Plaintiff is put out of service the plea depending the other may shew this and abate the Writ but otherwise it is if the Defendant be put out of service Lib. de divers des Courts f. 102. b. And if a man be impleaded in the common place for lands within the Cinque-ports the Tenant may shew to the Court that the land is within the Cinque-ports and by this plea the Court shall be outed of iurisdiction but if the Tenant doth plead in bar which is found against him and the Demandant haue judgment to recover the land tâ— is judgment shall bind the Tenant for ever Ib. 107. b And so it is of land in ancient Demesne if a Writ be brought for them in the common place if the Tenant appear and plead the bar and taketh no exception to the jurisdiction and the plea is found against him so that the Demandant recovereth he shall not reverse this by a Writ of Error because he might have taken exception to the jurisdiction of the Court and that should have been allowed ibidem But the Lord may reverse this judgment by a Writ of Deceit and make the land ancient Demesne as it was before If a man devise to one lands devisable the Devisee cannot sue for these lands in the Ecclesiasticall Court but if he make a devise of goods and chattles reall as a terme of years or of a ward he may for such sue in that Court F. N. B. f. 43. b. Jurisdictio est potestas de publico introducta cum necessitate juris dicendi Coke l. 10 f. 73. Iurisdiction is a power introduced by the publick for the necessity of decreeing and doing right The Iurisdiction of the Court of the Marshally was first instituted for the necessity of the rule and governance of the Servants of the Kings house-hold and therefore was it anciently stiled placita corona aulae hospitiâ— domini regis the Pleas of the Court of the house-hold of the Lord the King by which words it is proved that the one or the other party ought at the least to be of the house-hold of the King for how can these words stand when neither of the parties be of the house-hold of the King and that is the reason that it is not necessary in suites before the Steward and Marshall to alledge that the Plaintiff or Defendant were of the house-hold of of the King for the stile of the Court doth the same imply ibidem So the jurisdiction of the Court of Py-powders was introduced for the necessity of doing right in suits and matters concerning Markets and as that Court hath not jurisdiction but for things concerning the Market so hath it not Iurisdiction for matters concerning the Market unlesse they be done in the same Market M. 42. 42. Eliz in B. R. Hall brought a Writ of Error against Jones of a judgement given in the Court of Py-powders of the Market c. for Jones one of the Registers of the Bishop of Gloucester because Hall had published slanderous words of him c. and the judgement was reversed for two errors because those words did not concerne any matter concerning the Market and therefore the Court had no jurisdiction of it but if one slander any that shall come into the Market in any thing which concerneth his trade an Action well lyeth against hims and 2. it appeareth in the count that the words were spoken before the Market and not in it for the Court hath onely jurisdiction of those things which are done and said in the Market ibidem a. b. Where there is no colour to hold Plea as in a Court Baron of Land not holden of a mannor all is void but where there is colour to hold Plea though it be by plaint where it should be by originall yet the Iudgement rendred is onely voidable by a Writ of Error ibidem Non pertinet ad judicem secularem cognoscere de ijs quae sunt spiritualibus annexa Bract. l. 5. c. 2. It doth not appertaine to the secular Iudge to take cognizance of those things which are annexed to spirituall things And therefore the branches of Trees which are priviledged from Tithes shall be also priviledged but the suite for the Tithe branches of Trees which are not priviledged shall be in the spirituall Court as well as the suite for the Tithe of Trees themselves Res judicata pro veritate accipitur Coke com 103. a. The thing adjudged is taken for truth As in an Action of debt upon an Obligation against an Abbot the Abbot acknowledgeth the Action and dyeth the successor shall not avoid execution though the Obligation was made without the assent of the Covent for he cannot falsify the recovery in an higher Action and the thing judged is taken for truth and this is but a Chattle and so is it of a Statute or Recognizance acknowledged by an Abbot and Prior ibidem And therefore doth the Law so much respect the certainty of Iudgement and the credit and authority of Iudges as it will not permit any error to be assigned that impeacheth them in their trust and office and in wilfull abuse of the same but onely
first because he requested it which implyeth an assent secondly because he accepted it which also implyeth an assent for it mattereth nor whether one giveth his assent by words or by things themselves and deeds vide ibidem in Lampeis case As if the Baron accept the Grant of a reversion that amounteth to an Attornement 44. E. 3. Fines 37. Littleton so 37. H. 6. 17. he which hath interesse termini to wit a future interest cannot by expresse words surrender it but the acceptance of a new Lease shall drowne it and in 7. E. 3. 50. The Lord demanded an heriot and the heire delivereth a Beast in which himselfe hath property in his own right to the Lord that amounteth to a guift Ibidem N.S. seised of Mannors for the preferment of Winifâ—id his wife and Anne his Daughter covenanteth to stand seised to the use of himselfe c. for life the remainder in taile to A. his Daughter with a proviso that if he shall be disposed to determine c. the said uses it shall be lawfull for him so to doe by writing indented under his hand and seale subscribed by three witnesses and to limit the said uses to any other and N. S. after by indenture subscribed by three witnesses in consideration of a joynture to his second wife covenanted to stand seised to the use of himself his second wife and it was resolved though there was no expresse signification of his purpose to determine c. the former uses yet his last Indenture to stand seised to himself and his second wife should enure to the determination of the former uses c. and that by it ipso facto the former uses did cease and also inure to the raising of other uses c. quia non refert an quis intentionem suam declaret verbis an rebus ipsis vel factis because it is no matterwhether one declareth his intention in words or in the things themselves or deeds for by the limiting of other uses he did declare his intention and purpose to determine and alter the uses before Coke l. 10. f. 144. a Scroops case Conditio beneficialis quae statum construit benigne secundum verborum intentionem est interpretanda odiosa tamen quae statum destruit stricte secundum verborum proprietatem est accipienda Coke l. 8. f. 90. b. Provisoes and conditions which goe in destruction and defeasances of estates are odious in Law and are to be taken strictly and shall not be construed to make void any other use or state which is not within the words of the proviso but beneficiall conditions which make an estate are favorably to be taken according to the intention of the words As if a Feoffment be made upon such condition that the Feoffee shall give the Land to the Feoffor and the wife of the Feoffor and to the heires of their two bodies engendred the Remainder to the right heires of the Feoffor if the Baron dye living the Feme the Feoffee by the Law must make the estate to the Feme so neer the condition that he can make it as Littleton saith to wit to lease it to the Feme for terme of her life without impeachment of wast and after her decease to the right heirs of the Baron and of her ingendred the remainder to to the right heirs of the Baron and so if the Baron Feme dye before the deed made And with it accordeth the 2. H. 4. 5. But when conditions enure to the destruction of estates then they shal be taken strictly as if a man make a Feoffment in fee of certaine Lands upon condition that the Feoffee shall not give the Land to Baron and Feme and to the heires of their bodies engendred if the Baron dyeth without issue and the Feoffee maketh a lease for the life of the Feme without impeachment of waste that is no breach of the condition for it is taken strictly because it runneth to the destruction of the Feoffment vide ibidem plura in Frances case A lease made to one upon condition that the Lessee shall not alien to A. B. and he alieneth to R. B. and it seemed that the Condition was not broken for every Condition must be taken strictly for if a man maketh a Feoffment on condition that he shall not enfeoff I. S. and dieth and his Heire enfeoffeth I. S. that is no breach of the Condition Dyer f. 45. Pl. 1. A man is bound to another in an hundred pounds that he shall discharge the Obligee and â—ave him harmlesse of all Suits and Incumbrances against I.S. and after the said I. S. sued the Obligee and proceeded unto Judgment and the Defendant pleaded non damnificatus and Beaumon Serjeant sayd That in the eye of the Law untill his Goods or Lands were actually charged he was not damnified But Walmesley Justice held that there were two sorts of damages executory and executed executory which a man may in future time sustain executed as if the Land or the person should be in present execution As if the Disseisee maketh a release to the Disseisor and a stranger cancelleth the the Deed of the Release the Disseisor may have an action of trespasse against him and yet the Disseisor doth continue in possession and is not actually damnified And the Justices said the Land in some sort was actually charged for who would buy the Land of the party but only under value because of the Judgment executory 33 Eliz. Ridgleys case If a man be bound to make a sufficient estate in Land to one according to the advice of I. S. if he make an estate according to his advice whether it be sufficient or no he is excused 7 E. 4.13 A TABLE of the grounds and RULES contained in this Treatise A. ABundans cautela non nocet An abundance of circumspection doth not hurt fol. 323 Actus Dei nemini facit injuriam The act of God doth injury to no man 6 Actio personalis moritur cum persona A personall action dieth with the person 48 Actori incumbit onus probandi stabilitur praesumptio donec probetur in contrarium The burthen of proving lyeth on the Plaintiff and the presumption is confirmed untill it be proved to the contrary 46 Accessorium sequitur suum principale An accessory followeth the principall 56 Accusare nemo se debet nisi coram Deo No man ought to accuse himself unlesse it be before God 222 Actus non facit reum nisi mens fit rea The act maketh not a man guilty unlesse the mind is guilty 231 Actus repugnans non potest in esse produci A repugnant act cannot be brought into being 124 Actus me invito factus non est meus actus An act done against my will is not my act 434 Actus legis nemini facit injuriam The act of Law doth no man injury 463. 317 Ad libitum Regis sonuit sententia legis The sentence of the Law soundeth according to the Kings