upon another Sentence nor participate thereof but stand originally of it self Secondly That the Proviso be the word of the Bargainor Foeffor Donor c. Thirdly That it be compulsory to enforce the Bargainee Foeffee Donee Lessee c. to do an Act and where these concur it is a Condition in what place soever it be placed For Cujus est dare ejus est disponere D. Debile fundamentum fallit Coke l. 6.14 a. opus 20. Ass pl. 7.49 E. 3.8.3 E. 3.74 When an Estate to which a Warranty is annexed is defeated the Warranty also is defeated Derivativa potestas non potest esse major primitivâ 28 Ass pl. 4. The Bayliff of a Disseisor shall not say that the Plaintiff ever had any thing in the Land for the Master himselfe shall not have that plea because he is not Tenant of the Free-shold Destinata tantum pro factis non habentur As if I square a Tree to make a Beam of a House and die before it be laid in the building it shall go to the Executors De fide officio Judicis non recipitur quaestio F. N. B. f. 21. sed de scientia 3 H. 6.3.8 H. 6.23.5 E. 4.3 F.N.B. 23. sive error sit Juris sive Facti As If I assign for Error that whereas the Verdict passed for me the Court received it contrary and so gave Judgement against me This shall not be received Dies Dominicus non est Juridicus Dy 168. A Scire Facias out of the Common-Bench Error assigned because the Test of it was upon a Sunday and adjudged Error because no Law-day Divinatio non interpretatio est Litt. quae omnino recedit a litera As If I have a Fee farm Rent of 10 s. issuing out of White-Acre and reciting the same Reservation grant to J. S. a Rent of 5 s. to be received out of the aforesaid Rent and out of all my Lands and Tenements in Dale with clause of Distress it is void because it is against the words and the copulation of the words shew the taking of them in an other sense Dilationes sunt in lege odiosae Ployd 75. b. Though Warranties are favoured in Law F.N.B. 178 W. 2. c. 25. Ployd 98. a. 90.8.8 H. 7.8 yet none shall vouch any one in Assize if he be not present And Dilatory Pleas must be good to every common intent Ployd Ryder's case Dispositio de interesse futuro est inutilis 19 H. 6.62 Dy. 221. pl. 18.90 pl. 8. If I devise the Mannor of D. by special name of which at that time I am not seized and after I purchase it if I make not some new publication of my Will my Devise is void Dominus non maritabit minorem in custodia sua Lit. Com. 79. b. nisi semel If the Guardian in Chivaky marry the Ward within the age of 14 years and if afterwards at the age of 14 years he disagree to the marriage the Guardian shall not make tender of a second marriage Dormit aliquando jus Lit. Com. 279. b. moritur nunquam For of such an high estimation is Right in the eye of the Law as the Law preserveth it from death and destruction When it is said that a Release of Right doth in some cases inure by way of extinguishment it is to be understood in respect of him that makes the Release Doti mulieris pareatur quia proemium pudoris est Lit. Com. 31. a. Tenant in Dower shall not be distreined for the debt due to the King F. N. B. 150. by the Husband in his life-time in the Lands which she had in Dower Dos de dote peti non debet Lit. Com. 31. a. The Father dyeth and the Wife of the Grandfather is endowed of one Acre and dyeth The Wife of the Father shall be endowed onely of the two Acres residue Dona clandestina semper sunt suspiciosa Coke l. 3.81 l. b. 72. Burrel's case The Assignment of the Lease was taken to be fraudulent because deliver'd in a secret manner to a person of mean quality E Ecclesia fungitur vice minoris Litt. Com. 141. a. 103. a. meliorem potest facere conditionem deteriorem nequaquam A person may have an action of waste and it shall be said Ad exhaere dationem ecclesiae So if he make a lease for Life he shall have a Consimili caesu during the life of the Lessee but a person cannot make a discontinuance but if he do and dye his successor may enter notwithstanding the discontinuance Executio juris nulli facit injuriam Litt. Com. 161. a. Therefore a man shall not be punished for suing of Writs in the Kings Court Hob. 266. 1. Dy. 285. Pl. 37. be it of right or wrong Expressio eorum quae tacite insunt nihil operatur Litt. Com. 299. a. 30 Ass pl. 8.1.7 E. 3.7 Coke l. 4.73 As if a man seized of Land letteth the same by Deed indented for years rendring a certain rent with clause of distresse this clause is vain for the Lessor may distrain of Common right for the rent behinde Ex nudo pacto non oritur actio Litt. Com. 47. b. And therefore in an action of debt for rent it is a good plea for the Lessee to say that the Lessor had nothing in the Tenement at the time of the Lease Expressum facit cessare tacitum Litt. Com. 210 a. As if the Condition upon a mortgage be to pay to the Mortgagee or his heirs Coke Rep. Altham's case the money c. and before the day of payment Bedel's case the Mortgagee dieth the Feoffor cannot pay the money to the Executors of the Mortgagee Extra jurisdictionem jus dicenti 22 E. 4.33 Dy. 60. Pl. 26.14 H. 8.16 non paretur impune When the proceedings are coram non judice an action lies against them that execute the processe Exteriora acta indicant interiora animi secreta Litt. Com. 100. a. When License is given to any one by the Law Coke l. 8.146 l. 9.59 and he doth amiss be shall be a trespasser from the beginning Ex verbo generali aliquid excipitur Litt. Com. 47. a. Ployd 361. a. An exception is part of the thing granted and in esse as exceptis salvo praeter and out of a generall a part may be excepted F Facinus quos inquinat aequat 40. Ass Pl. 25. A servant procureth another to kill his Master this is not petty Treason in the servant because but felony in the other Festinaâ—io Iustitiae noverca infortunii Nov. Int. 285. b. And therefore Heb. 133. Litt. 304. the Judges alwayes in cases of Demurrers have a time to consider of the matter in doubt by a Curia advisare vult And when judgement is given it is Et super hoc visis praemissis per Justiciarios hic plenius intellectis and then Ideo consideratum est As in the
Oportet ut res ceria deducatur in judicium Playter brought an action of Trespasse against one W. Wuare clausum suum fregit pisces suos cepit without shewing the number or nature of the fishes and it was resolved that the Count should have comprehended the fishes in certain that the Defendant might have a certain answer and upon which a certain Judgement might be given P. Pater est quem nuprie demonstrant Litt. Com. 123. a. And therefore if a Villain have a Bastard by a woman and marrieth her the Bistard is no Villain because the Villain cannot be said to be his father he being a Bastard Pendente lite nihil innovetur At the Common Law Litt. Com. 344. b. if hanging the Quare impedit against the Ordinary for refusing of his Clerk and before the Church were full the Patron brought a Quareimpedis against the Bishop and hanging the Suit the Bishop admit and institute a Clerk at the presentation of another In this case if Judgement be given for the Patron against the Bishop the Patron shall have a Writ to the Bishop to remove the Incumbent that came in pendente lite by usurpation But since Westm 2. among other things it is enquired Ex officie if the Church be full and of whose presentation Perspicue vera non sunt probanda The Lord Cook Litt. Com. â— 16. b. in his Commentary upon Littleton observes that Mr. Littleton never citeth any Authority through his whole Book but when the case is rare or may seem doubtfull which appeareth in this that he putteth no case but hath warrant of good authority in Law The like of Justice Fitzherbert in his Natura Brevium that he never citeth authority but when the case is rare or doubtful Plus precat author 13 H. 7.10 Stamf. l. 1. c. 45.21 E. 4.71 quam actor If one be present at the death of a man and incite another to strike and kill him by this he is principal as well as he that killed him Litt. Com. 14.6 Possessio fratris de foede simplici facit sororem esse haeredem A man seized of lands in Fee-simple hath issue a son and a daughter by one venter and a son by another venter and dieth and the eldest son enters and dies without issue the daughter shall have the land and not the youngestion The like of an Use Ib. 10. b. Propinquior exeludit propinquum propinquus remotum remotus remotiorem And therefore the Fathers brother and his posterity shall inherit before the grandfathers brother and his posterity Proximus sum egomet mihi And therefore in Legacies it is reason that the Executors shall have preferment of satisfaction before others and the Law maketh allowance to them before any others Q. Quando lex aliquid concedit concedere videtur id Litt. Com. 55. a. 153. a. Coke Rep. Lyford's case sine quo res esse non potest If Lessee at will soweth the land and the Lessor after it is sown and before the corn is ripe put him out yet the Lessee shall have the corn and shall have free entry egresse and regresse to cut and carry away the corn Quando aliquid fieri prohibetur ex directo Litt. Com. p. 23. b. prehibetur per obliquum A Feosment upon condition that the Feoffee shall not alien to such a one naming his name is good And in this case if the Feoffee infeoff J. N. of intent and purpose that he shall infeoffe J. S. some hold this a breach of the condition Quando jus Domini Regis subditi concurrunt Litt. Com. 77. a. jus Regis praeferri debet If a man hold lands of the King by Knight-service in Capite and other lands of other Lords and dieth his Heir within age the King shall have the Wardship of all the lands by his prerogative Quaelibet haereditas naturaliter ad haeredes haereditabiliter descendit Litt. Com. 11. a. nunquam naturaliter ascendit nisi a latere If there be father uncle and sonne and the son purchase land in fee-simple and die without issue living his father his uncle shall have the Land as heir to the son Quae in partes dividi nequeunt 14 E. 3. Fitz. 1. Kitchin fol. 134. a. solida a singulis praestentur If my Tenant that holdeth of me by a Harriot alien part of the land to another every one of them shall pay Harriot because it is an entire thing Quaelibet concessio fortissime contra donatorem interpretauda Litt. Com. 42. a. If Tenant in Fee make a lease for life without mentioning for whose life it shall be taken for the life of the Lessee and shall be taken more strongly against the Lessor Qui non habet in aere Hobart's Rep. fol. 133. luat in corpore And therefore the Law hath provided several executions for the executing of the Law and he that hath not to pay of his goods c. must suffer in his body by imprisonment Qui ex damnato etitu nascuntur Litt. Com. 3. b. 78. a. 123. a. inter liberos non computentur A man makes a lease to B. the remainder to the eldest issue male of B. and the heirs males of his body B. hath issue a bastard son he shall not take the remainder because in Law he is not his issue Qui haeret in litera haeret in cortice The statute of Glouc. c. 5. which giveth the action of waste against the Lessee for life or years which lay not against them at Common Law speaketh of one that holdeth for term of years in the plurall number and yet though it be a penall Law whereby treble dammages and the place wasted shall be recovered yet tenant for half a year being within the same mischief shall be within the same remedy though out of the letter of the Law Qui ad mit medium dirimit finem Litt. Com. 161. a. 26 Ass 17.3 E. 4.2 And Qui obstruit aditum destruit commodum And therefore if a man be disturbed to enter and manute his land this is a disseizin of the land it self Qui peccat ebrius Litt. Com. 247. a. luat sobrius A drunkard who is voluntarius daemon hath no priviledge thereby but what hurt or ill soever he doth his drunkennesse doth aggravate it Qui per alium facit Litt. Com. 258. a. per seipsum facere videtur If the master command the servant to go to the Land and make claim there to avoid the discent if the servant doth all that which is commanded and which his Master ought to do there it is as sufficient as if his Master did it himself Qui semel Actionem renuntiavit Litt. Com. Coke l. 8. f. 58. Beecher's case amplius repetere non potest A retraxit is a barre of all actions of like or inferiour nature Qui sentit commodum Coke l. 5.99 Rook's case c. l. 5.24 Dean and Chapter
and Wood upon black acre 1 Mar. Dy. 91. Manxel's case 10. b. that may reasonably be spared this is a void Grant unlesse it be referred to a third person's judgement what may be spared Variance If the Writ vary from the Obligation 11 E. 4.2 4 Ass pl. 2. 32 H. 6.3 7 H. 6.22 or other speciality in name sirname or such like in an action of debt and annuity brought upon it or the Count vary from the Writ As in an action of debt of 20 l. 8 E. 4.2 and declare but a debt of 10 l. both shall abate Contrariety In trespass de domo fracta muris ejusdem domus fractis 21 E. 4.36 4 E. 4.29 21 H. 7.21 2 3 P. M. 153. The defendant cannot plead not-guilty to the breaking of the house and justifie the breaking of the walls for house and walls are all one and he cannot of the same thing both justifie and plead Not-guilty for by the justification he acknowledgeth himself guilty so they are contrary And therefore It will not drive a man to justifie that he goeth about to defeat â—0 H. 7.9 He that bringeth an Assize of the Mastership of a Chappell against J. S shall not need to name J. S. the Master of the Chappell because the Plaintisse is to disprove his interest Diligence And therefore It hateth folly and negligence Litt. 95. 5 E. 3.222 A discent cast during the Coverture where the wife is disseized barreth her not of her entry after her husbands death But if a Feme-sole be disseized and then taketh a Husband there a discent during the Coverture taketh away her Entry for it was her folly to take such a Husband that entred not in time Speeding of mens causes And therefore It hateth delayes He that pleadeth a record in delay 3 H. 6.15 12 H. 7.3 8 H. 7.9 2 H. 6.1 as to prove the Plaintiff excommunicate must have it ready to shew otherwise it is if he plead it in bar Vnnecessary circumstances One that is in Court ready to joyn with the Defendant 8 H. 6.1 1 H. 6.4 may do it without process As the Vouchee the Plaintiffs lessor being praid in aid of when the defendant in a replevin avoweth upon him or the Mesne when the Lord Paramont avoweth upon him But joynder in aid cannot be by Attorney without process Circuit of action Upon the grant of a ward with warranty Manxel's case â—7 b. the Defendant in a writ of right of ward may rebutt the Plaintiss by that warranty and shall not be driven to bring an action of covenant for avoiding circuit of action The Law construeth things with equity and moderation And therefore Restraineth a general act if there be any mischief or inconvenience in it Litt. 110. Tenant for life lets to another for life without expressing whose lives it shall be taken for the lessors own life for else it were a forfeiture of his Estate Moderateth the strictness of the Law it self By abridging diminishing and taking away the severity of it and mollifying the hardness of it A morall vertue as Plowden calleth it and may appear by Aristotle who treating of it defineth it A certain correction of the Law wherein it is any way wanting because of the generality of it It is no trespass to carry away a mans wife against his will to a lawfull end As to sue a divorce against her Husband or to have the peace of him before a Justice of Peace To the best And therefore Every act to be lawfull when it standeth indifferent to be lawful or not 6 11 H. 7.5 In an action of trespasse two issues are joyned triable in two Counties One in London another in Middlesex onely without saying which of the issues it should try this shall be taken to try the issue in Middlesex onely for so the venire facias is lawful and not in both Counties which is against Law And therefore it is a discontinuance of the Issue in London and not a mis-continuance Thus far of Rules drawn from their Sciences There follow those that are proper to our selves which we call Law-constructions And these are natural or fained Of the first sort we have two notable grounds Law construeth things reasonably And therefore With a reasonable intent A bargain and fale of Land and a reversion by deed not inrolled the Reversion passeth not no more then the Land 21 H. 7.5 though the Deed without Inrolment may pass the Reversion but it was meant they should passtogether According to the effect A Deed delivered by an Infant 1 H. 6.4 cannot be delivered again at his full age for it took some effect before and was but voydable Otherwise of a Feme Covert or a Resease of one that hath nothing in the land for here the first delivery was meerly void So that he that cannot have the effect of a thing shall not have the thing it self The King shall not be received upon default of Tenant for life 4 Eliz. 241. because the Demandant cannot have the effect of the Receipt viz. to count against him which none can doe against the King but sue to him by Petition To the most validity Tenant in tail Lit. 140. b. makes a Lease for life this shall be intended the Lessee's life And therefore When any joyn in an act it maketh it his act that may do it Lit. 2 7 El. Dy. 191. The Disseizee and the heir of the Disseizor in by discent make a Feoffment by one Deed and Livery this is the Feoffment of the Heir onely and confirmation of the Disseizee When two Titles concur the best is preferred One is disseized Litt. and the disseizor lets the land to the Disseizee for term of years or at will Now if he enter the Law shall say he is in of his ancient and best title Things to be done by him that hath most skill to do them 9 E. 4.4 4 E. 6.15 4 El. 230. Litt. 22.11 E. 4.36 An Obligation upon Conditiou that the Obligee shall bring to the Obligor's shop being a Tailor three yards of Cloth which shall be shapen and the Obligor to make the Obligee a Gown of it the Obligor must shape it So a Merchant agreeth with the King's Collectors that his Merchandise shall be weighed at the Kings Beam and the King shall have his Subsidie as it riseth the Collector must weigh it Void things good to some purpose 10 H. 7.12 1 2. P. M 107. A Feoffment upon Condition to be void as if it had never been yet the Feoffee shall have an Action of Trespasse after the Feoffor's entry for the Condition broken for a Trespasse done by the Feoffor before One thing to inure as another 21 H. 7.3 15 H. 7.7 37 H. 6.4 The King grants to a Town easdem libertates quas London habet it shall be intended the like The Lessor infeoffeth his Lessee for