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
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
in ignorance or mistaking either of the Law or of the Case and matter of fact according to the rule de fide officio judicis non recipitur quaestio Bac. Max. f. 62. sed de scientia sive error sit juris sive facti there is no question to be made of the office and faith of a Iudge but of his knowledge whether it be error in Law or fact as if I will assigne for error that whereas the verdict passed for me the Court received it contrary and so gave Iudgement against me this shall not be received F. N. B. f. 21. So if I will alledge that whereas I. S. offered to pleade a sufficient bar the Court refused it and drave me from it this error shall not be allowed 3. H. 6. 3. If an appeale of maihme be brought and the Court by the assistance of the Chyrurgions adjudge it to be a maihme the party cannot bring a Writ of Error 1. Mar. 5. If a woman bring a Writ of Dower and the tenant pleadeth her husband was alive this shall be tryed by proofes and not by Iury and upon Iudgement given on either side no Error lyeth 8. H. 6. 23. If nul til Record be pleaded which is to be tryed by inspection of the Record upon Iudgement no Error lyeth 5 E. 4. 3. So if upon Iudgement given upon confession for default and the Court doe assesse damages the Defendant shall never bring a Writ though the damages be outragious F. N. B. 23. And the reasons of these cales are that the Law will not have the Iudges called in quostion in the point of their office when they undertake to discusse the issue and to examine againe what the Court had tryed were to attaint the Court yet there may be question of the Error in Law or the Error in Fact and Errors in Law and Errors in Fact or ever of such matters as were not crossed by the Record as to alledge the death of the tenant at the time of the Iudgement given and nothing appeareth on Record to the contrary so when an infant levieth a fine and it appeareth not upon Record that he is an infant then it is error in fact and shall be tryed by inspection during nonage F. N. B. 21. And you shall never alledge an error in fact contrary to the Record as if a man will assigne for error that whereas the Iudges gave judgement for him the Clerks entred it in the Roll against him this error shall not be allowed and yet it doth not touch the Iudges but the Clerks but the reason is if it be an error it is an error in fact vide Ba. Max. f. 65. Novum judicium non dat jus novum sed declarat antiqum quia judicium est quasi jurisdictum per judicium jus est noviter revelatum quod diu fuit velatum Coke l. 10. f. 42. a. A new judgement doth not give or make a new Law for judgement is the voice of the Law and by judgement the Law is newly revealed that hath long been covered as that though it seemed to be a new opinion that tenant in taile cannot be restrained from suffering a common recovery yet it appeareth by the ancient Books and Litt. also that it is not of late invention and it is true the Law sometime sleepeth but judgement it awaketh and certainely these perpetuities were born under an unfortunate constellation for in so greate a number of suits concerning them in all the Courts of Westminster they never had any one Iudgement given for them but many judgements given against them by which those fettered inheritances of the Frank-tenements of the Subjects be set at liberty according to their originall freedome vide ibidem plura Mandatum ita regulatur in superioribus sicut in privatis a voluntate mandantis Reg. I. C. a commandement is regulated from the will of the Commander as well in higher as in private things so as in every command the will of the Commander is to be considered and observed and therefore Coke com 258. a. Regularly it is true that where a man doth lesse then the commandement and authority committed to him there the commandement and authority being not pursued the act is void The King licenseth an Abbot and Covent to alien and the Abbot sole alieneth it is void 11. H. 7. 8. And the rule is given by Frowick when the King maketh any grant or licence it ought to be executed accordingly and strictly as if the King granteth to me a licence to make a Feoffment by Deed I cannot make a Feoffment without Deed nor e contra so that the licence must ever be pursued or otherwise the act done is not warranted by the licence 18. Ass Pl. ult The licence was to levy a fine of the Mannor of Dale to finde two Chaplaines and he would have levied the fine leaving out the Chaplaines and could not be suffered 3. E. 3. 5. Davis in his case of tenures f. 19. The Statute of Merton c. 3. ordaineth that in a re-disseisin the Sheriff assumptis secum custodibus placitorum coronae doe go to that tenement of which the complaint is made if the Sheriff take but one Coroner it is not good for the Act appointeth a number two at the least which number ought to be satisfied or else the authority given by them is not pursued 23 Ass 7 Ployd f. 393. So as it is manifest a nude authority must be pursued strictly both for matter or manner or the act down by colour of the authority iâ— void Dyer ibidem f. 20. Coke com f 52. a. b. If a man be disseised of black acres and white acres and a VVarrant of Attorney is made to enter into both and to make livery here if the Attorney enter into black acre onely and maketh a livery and seisin secundum formam chartae there the livery of seisin is void for the estate of the disseisor cannot be devested in white acre without an entry In a praecipe quod reddat there must be two Summoners there for Summons by one summoner is not good because he doth not pursue the authority of the Writ and if there be but one and the tenant make default and loose by default he shall have a Writ of deceite Ployd 393. 50. E. 3. 16. When a man assigneth Auditors to Accomptants and they be found in arrearages by the Statute of W. 2. c. 12. they may be arrested and by the warrant of the Auditors sent to Goale there if there be but one Auditor assigned he cannot commit the Accomptant to the Goale for the Statute limiteth such power to two at the least vide ibidem plura in the Earle of Leicesters case quod vide A Letter of Attorney to foure or three joyntly to make seisin two of them cannot make livery ibidem f. 181. b. But there is a diversity between an authority coupled with an interest and a bare authority as for example a custome
but supposalls As in a Pormedon one claimeth by descent from I. S. or a Mortdancester as sonne and Heir of I. S. yet in another Formedon he may claime from I. D. and shall not be estopped No more shall a recitall make an Estopple for they are not materiall as 33. H. 6. 10. b. where A. reciting that he is seised in fee of the Manner of D. granteth a rent out of it to B. this shall not estoppe A. to say that he had nothing in that Mannor Finch nomotec f. 32. Neither shall counts and declarations abate so long as the matter of Action is fully shewed in the Declaration and the writ as by the Statute of 36. E. 3. c. 15. it is provided And therfore in Demurrers it is alledged that the matter contained in the count is insufficient in Law and so of a plea and accordingly in the raigne of Queen Eliz. provision is made that after demurrers the Judges shall give Judgement according to the right of the cause and matter in Law without regarding any imperfection defect or want of forme in any Writ Retorne Plaint Declaration or other pleadings or course of proceedings whatsoever which Sir Edward Coke stiles an excellent and profitable Law Coke Com. 304. b. All which are more fully contained in the late Act of 11. Mar. 1649. by which it is enacted that no judgement shall at any time or times be arrested or stayed in any Court of Record for want of any matter of forme or defect whatsoever except only for matter of substance which shall be found or shewed pulickly to the Jude or Judges sitting in the said Courts of Record to be in the declaration Plea replication or other proceedings after apparance And besides in common recoveries no formall errors shall be allowed to reverse them unlesse they be substantiall and materiall as by the statute of 23. Eliz c. 4. it is provided that for the avoiding of the danger of assurance of Land and for the advancement of common recoveryes that not any common recovery shall be avoided for any want of forme in wordes and not in matter of substance so much doth the Law respect matter of substance before matter of form circumstance Coke c. f. 40.2 From the predicaments of action and passion Idem non potest esse agens paciens 14 H. 8. 31. b. nihil agit in seipsum Arist 1. de gener no man can do an act to himselfe No man can sue himself and therfore when a man having right to Land hath the freehold cast upon him by a latter title he shal be said to be in of his ancient title because there is no body against whom he may sue but himselfe and he cannot sue himself Lit. A man cannot present himselfe to a benefice or make himselfe an Officer 13. H. 8. 32. No man can summon himsele 8 H. 6.29 And therefore if a Sheriff suffer a common recovery it is error because he cannot summon himselfe Dier 188. But when two Sheriffs are the one may summon the other with speciall direction in the Writ that the other shall summon him 14 and 15. Eliz. If a Sheriff be Conusee of a Statute he cannot execute a liberate himselfe 9 E. 4. 33. Plaintiffe and Defendant Exception and Actor and Reus are relative opposites and cannot be properly in one and the selfe same action except in some speciall cases as in a writ of detinue where garnishment is required there the Defendant is to become actor against the garnishee 3 H. 6. 18. so in a quare imâ—edit where the Defendant maketh title to have a Writ to the Bishop the defendant is become actor 20 H. 6. 29. In a Replevin upon an avowry made the avowant is become actor 3 H. 6. 19. a. 23. H. 6. 45. a. 12. E. 4. 10. a. So in a Quod deforceat the demandant or Plaintiff shall defend his estate against such recovery as shall be pleaded against him and become defendant and may vouch ac si tenens esset in priori brevi by the statute of W. 1. A Sheriff who is demandant may execute all processe till it come to the Venire facias otherwise if he be Tenant 20. E. 4. 7. A Sheriff is Plaintiffe for he may take pledges himselfe and execute a Replevin against himselfe 5. H. 7. 2. The Sheriff is in seisin of a Baly-wick of a liberty he shall command himselfe as Bayliff of that liberty to execute that processe 8 E. 3. 21. F. B. N. f. 4. E. There is a Writ of prohibition in the Register directed to the Sheriff to inhibit himselfe that he hold not plea in the county upon a sorreine Plea pleaded or the Mise joyned to be tried by grand assise Actori incumbit onus probandi stabilitur praesumptio donec probetur in contrarium the burden of proving lieth on the Plaintiff and the presumption is confirmed untill it be proved to the contrary Cok. l. 4. f. 70. There is a bargainor and a bargaince if this bargainor contend to avoid the bargaine by reason of the non enrolement within six months he must make manifest proofe thereof or else it will be presumed that it was inroled within the six months omnia praesumantur legitime facta donec probentur in contrarium Coke com f. 233. b. As whereas the feoffee giveth or granteth to the feoffor the deed pol such grant is good and the property of the deed shall appertaine to the Feoffor and when the feoffor hath the deed in his hands and pleadeth it in Court it shall be rather intended that the feoffor commeth unto it by lawfull meanes then by a tortious meane For all things are presumed to be lawfully done untill they may be proved to the contrary A. and B. Tenents in common of a Mannor A. purchaseth a frank tenement mixt with the demesne Lands which were not certainly knowne B. brings a writ de partitione facienda of the Mannor onely and judgement given that partitio fieret and a Writ to the Sheriff accordingly It is held by the Justices that A. must shew the bounds of the franktenement purchased for the Jury shall be discharged if in conscience they make partition de tanto quanto praesumitur dignoscitur per praesumptiones verisimilia of so much as shall be presumed and knowne by presumptions and likelihoods Dier f. 266. Pendente lite nihil innovetur Let nothing be innovated hanging the suit Coke com 344. b. if hanging the quare impedit against the Ordinary for refusing his Clark and before the Church was full the Plaintiff brought a quare impedit against the Bishop and hanging the suit the Bishop admitted and instituted a Clark at the presentation of another if judgement be given for the patron against the Bishop the patron shall have a writ to the Bishop and remove the incumbent that came in pendente lite by usurpation for hanging the sute nothing is to be innovated Qui semel actionem
house 11. H 4. 32. From the Forme MVtata forma prope interimitur substantia rei Ulpian reg I. C. Doderidge f. 132. 133. The English Lawyer The forme being changed the substance and essence of the thing is destroyed If a man take my Barley and make Mault thereof it cannot be seised by the former owner and yet neither quantity nor outward forme is lost but it is become a thing of another nature and use because the inward forme upon which depended the use is changed So if a man of any peece of cloth which he had to keep containing twenty yeards in one whole peece will cut the same into twenty severall yeards and peeces the matter nor the quantity is not changed and yet if hee will restore the same peeces I am not bound to receive them So if a man possessed of twenty packs of Wooll by his last will deviseth all the said Wooll to I. S. and after the Testator converteth all the said Wooll into cloth and dieth possessed of the same cloth I. S. the devisee shall not have by law the cloth made of that Wooll for that the forme of the Wooll is changed though the matter remaine and is turned to a thing of another nature and the turning it into cloath is a Countermand of the Testators Will. So if a man have a dwelling house whereunto there is a Common of Estovers belonging if this house by casualty of fire or tempest be burnt or blowen downe or taken downe and a new be built in another place neere or in another forme the Common of Estovers is lost and not to be used in this new house but if the first house were not wholy pulled downe but repaired or another new house be built upon the same foundation and in the same forme with the former the Common of Estovers remaineth with the new house for that in Judgement of Law is the same house for the building on the same foundation is but a reparation ibidem So 22. H. 6. 28 It is not sufficient in a bar of a Writ of Wast of an house to say that the Defendant hath built a new house in liew of that which is fallen but the Defendant must say that it is as much in length and as much in latitude as the other was or at the least he must say that it is as profitable but when an house is ruinous at the making of the lease and after falleth and the Defendant buildeth a new it is not necessary that he make another house of equall longitude or latitude Fulb. l. 2. f. 51. From the end SApiens incipit a fine Coke l. 10 f. 25. b. Et quod primum est in intentione ultimum est in executione Suttons Hospitall case A wise man beginneth from the end and that which is first in intentions is last in Execution The pious and charitable end of Sutton was the grand motive to the King to give to him meanes by creation of a capeable body politick by way of incorporation to have a perpetuall succession to perfect and perpetuate so pious and charitable a worke Ibidem Finis rei attendendus est fines mandatorum domini regis per rescripta sua deligenter sunt observandi for the end in all humane actions is of singular regard for that all things attempted by wise men have their end and the virtue of the thing is measured by the end Doder Coke l. 5. f. 87. a. In Blunfeilds case The end and fruite of a suit is satisfaction but the execution of the body is no satisfaction but a gage for the debt 4. H. 7. 8. 33. H. 6. 47. And therefore after his death he shall resort to another execution for it should be mischeivous to the Plaintiff to lose his debt without any default in him neither is the execution of the body a valuable execution and therefore after his death he shall have a new execution untill he hath had a valueable execution out of his Lands and Goods which in Law and Equity ought to be subject to the payment of his debts but where no other satisfaction is to be had thereby Qui non habet in aere luat in corpore ne quid peccetur impune Hob. Rep. f. 133. He who hath no mony let him be punished in body least he should offend without punishment vide ibïdem Exitus acta probat finis non pugna coronat Dod. E. Law◠f. 143. Coke l. 9. f. 82. b. Finis coronat opus the Law favoureth the consummation and prefection of things for the end crowneth the worke and doth all as the end of an Attornment is to perfect a grant which the Law therfore favoureth according to the resolution of the Bookes 12. E. 4. 3. 4. where it is holden that Tenant in taile Infant or Feme-covert may be bound by an Attornment gratis in pais and in 18. H. 8. Fortescue holdeth that if one granteth the service of his Tenant which is within age who within age attorneth shall he after in an avowry be admitted to say that he was within age at the time of the Attornement I say no for he did nothing but that which he ought to doe Ibidem Ployd f. 18 a. The scope and end of every matter is principally to be considered in all things and when the scope and end of the matter is satisfied then the end of the matter is accomplished as here in Renigers case as the end of the Statute of 7. E. 6. c. 2. is that the King shall have his subsidy and if the agreement be here sufficient to give him the subsidy and to assure the King of it then the end of the Statute is performed and so here it is for the agreement authoriseth the King to weigh the Woad by his collector at what time he shall please and when that is done the King hath title to action and so is in surety So 33. E. 3. Joynder in aide 10. Vouchee cometh into the Coutt to be viewed and being viewed is awarded of full age yet he shall not be driven to answer till he come in to the same intent by another Processe So 19. E. 4 3. The Vouchee upon a Grand Cape ad valentiam shall not lose the Land though he cannot save his default for the Processe is onely to this end to have him to appeare So 51. Ass Pl. 2. A man is warned by writ to answer to a matter he shall not be driven to answer to any other matter then is contained in that writ though the King be a party As if by office it be found that Lands in cheif descended to I. S. a foole naturall and that A. occupieth them whereby a Scire facias goeth out against A. to answer why the Lands should not be seised into the Kings hands for the ideacy of I. S. A cometh in and pleadeth that I. S. when he was of perfect memory made a release to one B. who infeoffed A. this is good enough without
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
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
re-entry is good if the other party confesse the condition If twelve be sworn and one depart another of the pannell by consent may be sworn and with the eleven give verdict The Court in a Quare impedit by consent may give longer day then is limited by the Statute of Marlebridge The Statute of 2. E. 3. 20. E. 3. provide that neither for the great Seale or the petty Seale Justice shall be delayed yet when the matter concerneth the King onely if he command it it may be stayed F. N. B. 21. b. Tenure at this day may be created by consent of all notwithstanding the Statute of Quia emptores terrarum 27. H. 8. By speciall consent of parties re-entry may be made for default of payment of the rent without demande of it Dyer 78. vide by all which cases it appeareth that consent of parties altereth the forme and course of Law ibidem Coke l. 5. f. 40. Electio semel facta placitum testatum non patitur regressum 20. H. 6. 24. Coke com f. 146. a. An election once made and testified by pleading suffereth no returne As if a Rent-charge be granted to A. and B. and their heires and A distraineth the Beasts of the Grantor and he sueth a Replevin A. avoweth for himselfe and maketh conusance for B A. dyeth B. surviveth B. shall not have a Writ of Annuity for in that case the election and the avowry for the rent of A. barreth B. of any election to make it an Annuity ibidem Coke l. 4 f. 5. b. in Vernoms case If the Baron discontinue the Land of his wife and dyeth and the wife bringeth a Writ of dower against the discontinuee and recover the third part shee is by it estopped to bring a cui invita for by the Writ of Dower shee claimeth Title of Dowâ—r onely and therefore shall be estopped to claime any other right by a cui invita 10. E. 3. double Plea 8. 10. E. 3. Scire facias 13. F. N. B. 194 17 Ass Pl. 3. For when shee bringeth her Writ of Dower and hath judgement to have the third part of all by it shee affirmeth that shee hath but title of Dower and by consequence no estate and therefore shee shall be estopped to claime any part of it of which shee hath demanded by her Writ to be endowed and an acceptance of rent by her Deed indented concludeth the feme of her right 11. H 7. 10 vide ibidem plura in Christians case But here a diversity is to be observed that a man may have several remedies for a thing that is meerly personal or meerly reall As if a man may have an action of account or an action of debt at his pleasure he bringeth an action of account appeareth to it and after is non-suite yet he may have an action of debt afterwards because both actions charge the person the like case is of an assize of a writ of entry in the nature of assize and the like Coke com f. 146 a. Multa conceduntur per obliquum quae non concâ—duntur de directo Coke l. 6. f. 47. a. Many things are granted by the by which are not directly granted As when a Bar is pleaded in a reall or personall Action as a release c. in a forrain County there the Jurors which try it shall assesse damages according to the profits of the Land in another County so by that meanes enquire of things locall in another County for many things are granted by the by c. And when they try the matter of the Bar upon good and pregnant evidence they ought to finde all dependants upon it as damages c. vide ibidem plura Dispositio â—e interesse facturo lest inutilis Bacon f. 56. The grant of a future interest is vaine and void for the Law doth not allow of grants unlesse there be a foundation of an interest for the Law will not accept of Grants of Titles or of things in Action which are imperfect interests much lesse will it allow a man to grant or incumber that which is no interest at all but meerly future As a Writ of Annuity was granted by a prebend after collations admissions and institutions but before installation or induction which though it was confirmed by the ordinary who was the Patron also was adjudged void because he had but jus ad rem and a future interest but not in re for he shall not be said a prebendary to all intents nor at the Common Law without the reall possession which is by induction Dyer 221. Pl. 18. A. maketh a Lease of Land for years to B without reservation of the Woods and Trees the Lessor cannot sell all the Woods and Trees for the Woods and Trees are parcell of the Lease and passe to the Lessee as well as the Land if they be not excepted upon the Lease for all the fruites and profits coming from the fruitfull Trees belong to the Lessee and the shadow and also the branches and loppings for fire or enclosure of fences Dyer 90. Pl. 8. If I grant unto you that if you enter into an obligation to me of one hundred pounds and after procure me such a Lease that then the same obligation shall be void and you enter into such an obligation unto me and afterwards doe procure such a lease yet the obligation is simple because the defeasance was made of that which was not 20 Eliz. 19. H. 6.62 So if I grant unto you a rent-charge out of white-acre and that it shall be lawfull for you to distraine in all my other Lands whereof I am now seised and which I shall hereafter purchase although this be but a liberty of distresse and no rent save onely out of white-acre yet as to the Lands after to be purchased the clause is void 27 E. 3. If I covenant with my Son in consideration of naturall Love to stand seised to his use of the Lands I shall hereafter purchase the use is void 25. 27. Eliz. So if I devise the Mannor of D. by speciall name of which at that time I am not seised and after I purchase it except I make some new publication of my will my devise is void Ployd Rigdens case vide Bacon ibidem plura f. 57.58 Non refert an quis assensum praebat verbis an rebus factis Coke l. 10 f. 52. b. It mattereth not whether a man giveth his assent by words or by things themselves and Deeds Whereas the assent of an Executor is necessary before any legancy can be had for that debts are first to be paid and that the Executor must look to it at-his perill Offi. of Exec. 234. the assent consent and agreement of John Morris the Executor to the Legacy of William Taylor and Elizabeth his wife did appeare in that at the speciall instance and request of the said Morris the said William Taylor and Elizabeth his wife did release the said Legacy to the said Morris
that he had not white Acre by descent but had it by purchase for the relation to the descent was in vaine in that certainty appeared before ibidem vide Coke l. 3. Doughtys case f. 18. Oportet quod certae personae certae terrae certi status comprehendantur in declaratione usuum Coke l. 9. f. 9. a. Every declaration of uses upon Recoveries Fines c. of Lands Tenements and Hereditaments ought to be certaine for otherwise there shall be no certainty of inheritances and that certainty ought to be principally in three things in persons to whom in Lands c. of whom and in estate by whom uses shall be limited and declared and if certainty faile in any of them the declaration is insufficient Certa debet esse intentio narratio Bractton lib. 2. All declarations ought to be certaine so as the Defendant may know to what thing he ought to answer Ployd 84. a. As 3. E. 4. f. 21. A man retained in husbandry brings an action of debt against a Prioresse for his salary and declares that he was retained with her Predecessor and doth not shew what person retained him and by the better opinion the count shall abate for the incertainty for that it might be that one that had no Warrant retained him And so is it in a Writ Ployd ib. vi a. 22. E. 4. f. 47. It was granted by Parliament that Ashby should have a writ with Proclamations out of the Chancery against one Griffeth to answer for diverse Trespasses which were contained in the Act of Parliament and the Writ by award was abated because he made no mention of the Trespasses in certaine and there it varied from the Act but that was a private Act and therefore the non-recitall of it makes the Writ naught and so should the mis-recitall but the recitall of a generall act or the mis-recitall of a generall Act is not material but the Judges are bound to take notice of it without the monstrance of the party Oportet ut res certa deducatur in judicium Coke l. 5. f. 321. a. Playters Case P. brought an action of Trespasse against W. Quare 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 certaine that the Defendant might have a certaine answer and upon which a certaine judgment might be given as 4. H. 6. n. the writ was quare piscem cepit and counts of so many Pikes in certaine and though the writ was piscem in the singular number yet good because per se est nomen collectivum in which the plurall number is comprehended and great inconvenience otherwise would ensue for unlesse the issue hath certainty with which the Jury may be charged upon such a generall incertainty if they give a false verdict they may be charged in attaint and f. 38. a. Teyes case In a fine the same thing was granted and surrendred to severall persons and of severall estates and so repugnant and erroneous for a fine is like unto a Judgment for a Scire facias lyes to execute it as of a Judgment and oportet as Bracton saith quod certa res deducatur in Judicium Ployd Manhells Case f. 10. b. If three issues bring three severall Formedonâ— he whose writ is first returned shall have the Land for by it he hath first attached the possession in the hands of the tenant and the writ is not of Record before the returne but if all the three Writs be returned on the same day they shall all abate because it is incertain by the count if the Tenant confesse the actions to whom they shall award seisin because all their titles are alike and all returned on the same day and for that incertainty the writs shall abate as 21. R. 2. Fit avowry p. l. 262. In a Replegiare against two the one avows for Damage-feasant and the other avows that he had common in the Land and tooke the beasts as a commoner Damage-feasant and by the award of the Court both the avowrie was abated and the Plaintiff recovered damages against them because every of them could not have the returne and who should be preferred and who rejected would be incertaine to the Court vide Ployd f. 84. a. b. Partridges case In some cases the count and the writ may be generall without certainty as in assizes but there the certainty must be shewen by the replication and in some cases the writ the count and the replication also may be incertaine but the certainty shall appeare by verdict As in a Quare impedit the value of the Church doth not appeare in the count nor in the replication but it shall appeare by verdict for they shal assess double damages or damages for halfe a yeare according to the value of the Church as the case requireth so in a writ of Ward the Jury shal find if the heir be married or not and shall assesse daâ—â—ges for it and yet in the count and replication no such matter appeareth So in a detinue the valew of the goods appeareth by verdict and in many other cases So as the certainty allwayes must appeare to the Court and if it be requisite to be shewen in the count then it ought not to be left out or omitted in the count as Ployd f. 85. a. In decies tantum he must shew the certainty of the sum received because he shall recover ten times more and that he cannot unlesse he shew how much it is And in Trespasse if the Defendant pleade that it is his Frank-tenement and the Plaintiff intitles himselfe by a lease for years made by him and if the Defendant will shew that he made a Feoffment and that he entered for the forfeiture he must shew the name of the Feoffees and certainty of the Feoffment for in all cases the privy ought to shew the certainty and in case of forfeiture the Lessor in the reversion is privy to it So if the heire will pleade in bar in a writ of Dower the detainer of evidences he must shew the certainty of the evidencies for he is privy to them in that he affirmeth that they appertaine to him but if he say a bag ensealed with Charters that is good without shewing the certainty of them 18. H. 8. f. 1. B. Dower And if one be bound in an obligation to serve I. S. for seven years in mandatis omnibus suis licitis he shal pretend that he did serve him lawfully without shewing in what service or in what commandement for no servant can remember all 20. E. 4.13 So a man may aver a thing to be done by Covin without shewing how the Covin was for Covin is a secret thing contrived between two or three to the prejudice of another 4. E. 6. 46. And a man may pleade that he was chosen Knight for the Shrie by the greatest number without shewing the number for the
election may be by voyces or hands or in othâ—â— sort and it is hard to discerne the certaine number and yet easy to see who had the greatest number 2. M. 128. vide Ployd f. 121. b. Coke Com. f. 303. c. Every Plea must be direct and not by way of argument or rehersall and an argumentative Plea is not good Ployd f. 122. a. b. for there is a ground in the Law that in declarations certainty ought to be alledged by apt words of affirmation otherwise the declaration is not good As in debt upon an obligation I declare that it appears by the obligation that the Defendant is bound to me in twenty pound the declaration is not good because it was alledged in matter of fact quod tenebatur mihi in twenty pound for bond is alledged for recitall onely So 11. H. 6. In an action of debt against a goaler who had let one at large who was in execution under guarde for the sum in demand and declareth that he let him at large by which the Plaintiff exclusus fuit de debito suo and the declaration not good because he did not say that he was not satisfied when he let him at large which is the cause of the action which he hath not alledged but by implication for by implication it is alledged for if he let him go at large by which he is barred of his debt against the prisoner by it is implyed that the debt was not then paid but the count was not good because it was not affirmed by precise words and 38. H. 6. f. 14. The Plaintiff in an action of debt counts that the Defendant retained him in his service for eight years to serve him in all occupations taking for every yeare 20 s. and the Defendant gageth his Law and though the Plaintiff was retained in husbandry and the service of husbandry was implyed in the words all occupations yet the Defendant was received to his Law because it was not fully expressed that he was retained in husbandry but onely by implication which would not suffice So Ployd f. 143. b. The Covenant in the Indenture was if one moyety of the Rent was behinde and unpaid after two moneths since the Feast c. that then c. and in the rejoynder it was alledged that one moyety was behinde per duos menses by the space of two moneths which was no answer because the Indenture is if it be behinde after two moneths post duos menses and he said it was behinde per duos menses which is no affirmation that it was behinde after two moneths but by implication and argumentation and not otherwise and therefore not good Every Recovery had in our Law must be pleaded certainly to every intent Ployd 65. a. as in 22. E. 4. f. 8. in a Scire facias to have execution of two hundred Acres of Land the Tenant pleaded that since the Scire facias sued that I. B. brought a Formedon of one hundred Acres inter alia and recovered and had execution judgement of the breif for parcell and there the opinion was the Plea was not good for every Recovery ought to be pleaded certianly to every intent and those words inter alia are certaine to no intent and it is good reason for every Recovery is entire and there is one originall and one judgment upon it and so the judgement is one and entire and therefore to say that inter alia he did recover is not good but ought to plead certainly If a Bar hath matter of substance and is good to a common intent it shall suffice although it be not good to every speciall intent Ployd Colthersts Case f. 26. a. and as Coke Com. 303. There are three sorts of certainties first to a certaine intent in generall as in counts replications and other pleadings of the Plaintiff 2. A certaine intent to every particular as in Estopples 3. A certainty to a common intent and this is sufficient in a Barr which is to defend the party and to excuse him and of this certainty it is said the Bar shall be good if it be good to a common intent Ployd f. 31. a. but this common intent is not such an intent which may be indifferent but such an intent that hath more vehement presumption in intendement then any other intent hath as fully to administer all the goods which were to the testator the day of his death is a good Bar yet it may be he had other goods which were never in the hands of the Testator which are Assets as debts paid after or goods which come in liew c. but that is not the most common intent but the more common intendement is that he had not any other goods but those which were the Testators So in a Formedon in descender ne donna pass is a good Barr yet it may be he hath recovered in value in which case other Lands were given and yet the Formedon lyes but that shall not be intended but the common intendement is to expresse the plaine guift by livery but if I pleade in Bar a lease for anothers life there the Bar is not good without averring the life of cefis que vie for it was indifferent whether he was in life or no and hath no more stronge intendement the one way then the other therefore his life must be averred by expresse words so in debt upon an obligation if the Defendant pleade in Barr a release bearing date since the obligation made that Bar is not good if he doth not shew by expresse words that it was delivered since the obligation made for prima facie one will presume that it was delivered when it bore date but of the other part it shall be presumed also that the other would not bring an action of debt if the release was delivered since and so one way it hath as vehement presumption as another and for that the intendement is indifferent it is not good unlesse it be shewen by the Plea that it was delivered since the obligation made Ployd ibidem vide plura f. 26. Grounds and Maximes proceeding from the Predicaments From the Predicament of substance SVbstantia prior dignor est accidente Arist 2. de anima the substance is more worthy and before the accident and therefore doth the Law prefer matters of substance before forme and circumstance as 21. H. 7. 24. b. Pleas in Barr and replications though the Plaintiff be afterwards non-suit make an Estopple for they are expresse allegations and substantiall as in debt upon an obligation if the Defendant pleade in Barr an acquittance made at D. or if the Defendant pleade an acquittance and the Plaintiff replyeth that it was made by duress of imprisonment at D. now in another action neither the Defendant shall pleade that the acquittance nor the Plaintiff that the duress was at another place because they were materiall But the matter in the writ and the count maketh no Estopple for they are
renunciaverit amplius repetere non potest n. f. 139. a. As a Retraxit is a bar of all other actions of the like or inferior nature for he which once renounceth his action can no more renew it It is a generall rule that non-suite before appearance is not peremptory in any case for that a stranger may purchase a writ in the name of him who hath cause of action and regularly a non suit after appearance is not peremptory but that he may commence an action of like nature againe for it may be he hath mistaken something in that action or was not provided of his proofes or mistaken the day or the like But yet for some speciall reasons non-suit in some actions is peremptory as in a quare impedit if the Plaintiff bee non-suit after apparance the Defendant shall make a title and have a Writ to the Bishop and this is peremptory to the Plaintiff and is a good bar in another quare impedit and the reason is because the Defendant had by the judgement of the Court a writ to the Bishop and the incumbent which commeth in by that writ shall never be removed which is a flat barre as to that presentation and for the same law and upon the same reason so it is in the case upon a discontinuance Coke com f. 139. a. vide ibidem plura Actio personalis moritur cum persona a personall action dieth with the person Went. off of executors f. 1. 97. As if a keeper of a Prison suffereth one in execution to escape and dieth no action lyeth against his Executors If Lessee for yeares doth wast and dieth an Action of wast lyeth not against his Executor or Administrator for wast done before that time Coke com f. 53. b. so if the tenant doth wast and he in the reversion dieth the heire shall not have an Action of wast for the wast done in the life of his Ancestor nor the master of an Hospitall or a parson for wâ—st done in the life of the predecessor ibidem The Lessor covenants to pay quit rent during the terme and dieth his Executors shall not pay it because it is a personall covenant in the Lessor onely Dier 114. Yet if there be three copartners and they Lease the land and one of them die and hath issue and the Lessee commit wast and one of them die and hath issue the Aunt and the issue shall joyne in an Action of wast and the issue shall recover one moyety of the Land wasted and the Aunt the other notwithstanding that actio injuriarum moritur cum persona But in favorabilibus magis attenditur quod prodest quam quod nocet in indifferent and favourable things that which profiteth is more respected then that which hurteth Relatio tunc fieri non debet si per eam actus destruatur Reg. I. c. Decius 363. Quando dispositio referri potest ad duas res ita quod secundum relationeÌ„ una vitiatur secunduÌ„ aliaÌ„ utilis sit tunc facienda est relatio ad illam ut valeatdispositio semper ita fiat relatio ut valeat dispositio C. l. 6. f. 76. b. a. A relation then ought not to be when by it an Act is destroyed As in the statutes of 32. and 34. H. 8. concerning Wills whereof is provided that every person having any Mannors Lands c. holden in capite shall have full power c. to dispose by his last will in writing or otherwise by any Act or Acts lawfully executed in his life two parts of the same Mannor c. for the advancement of his wife preferment of his children and payment of his debt or otherwise at his will and pleasure any Law statute c. those words or otherwise at his wil pleasure have reference relation only to the last wil not to the acts executed for otherwise none might have devised two parts but onely for the advancement of his wife and preferment of his children or payment of his debts which is not the intention of the Act but that he may devise two parts to whom he will so that the third descend and it was in vaine to referre those words or otherwise at his will and pleasure to Acts executed for he can do that without any authority given to him by that act And therefore when the disposition may be referred to two things so as according to the relation one of them may be destroyed and according to the other shall be commodious then the relation is to be made to that that the disposition may be of force and alwayes the relation is so to be that the disposition may availe in Sir G. Cursons case So Coke l. 3. f. 28. b. Butler and Bakers case relation is a fiction in law to make a nullity of a thing from the beginning to a certaine intent which in truth had being and the rather for necessities sake ut res magis valeat quam pareat As if a man make a gift in taile to Baron and feme and afterwards grants the reversion of those Lands and since the Baron dies and the feme to have her dower waiveth and disagreeth to the estate taile now in regard of her it is a nullity of the estate from the beginning and to such an intent the Law faineth that the estate was onely made to the baron but as to the grant of the reversion that is a collaterall Act and her refusall shall not have such relation for she may be endowed though that estate stand and so no necessity and therefore without necessity ut res magis valeat the Law will not faine any nullity but in a destruction of a loyall estate vested the law will never make any fiction vide ibidem plura So relation shall make things have been as if as if they never had been 1. H. 7. 16 The husband disagreeth to a Feoffement made by his wife it is void from the beginning so that he may plead ne infeosse pas so 14. H. 8. 10. A devise is that the Executors may sell land c. when they sell all meane charges made by the heire in the interim shall be avoided by relation to the time of the death of the Testator so 14. H. 8 18. I disseise A. to the use of B. the dissiesee releaseth to mee and then B. agreeth with the disseisee this agreement by relation shall be as if he had agreed before the release and so shall defeat it Jurors alien their Lands away between the teste of the Writ of attaint and judgement yet they shall be charged to the King for the estreptment by relation 22. E. 3. 16. Caufe of Assise brought for rescuing a distresse taken for rent and then an Office is found which entitleth the King who seiseth the Land and then an Ouster le maine is sued the Assise is gone for ever because the King shall be said to be in possession at the time of the rescous
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
very commendable Ibidem Naturae vis maxima and Catiline said Natura bis maxima The force of nature is very great or more then superlatively great Ployd 309. b. and therefore all things proceeding from nature are not onely respected in Philosophy but also in our law and are of efficacy in our law and taken for a consideration sufficient Ployd 305. and accordingly in Sharingtons case f. 309. It was adjudged that the affection of Andrew Bainton for the provision to his heires males which he had engendred and the affection that he had that the land should remaine in his blood and name of Bainton and the brotherly love that he bore to his brothers were causes sufficient to make uses in the land vide ib dem So consideration of marriage and brotherly love are greater then mâ—ny or matter of recompence to raise an use without transmutation of possession because every one of them is meerely founded on the law of nature ibidem 3 9. a. If a man seised in fee of Lands holden of I. S. by fealty and ten pounds of rent and he giveth it in frank marriage to one with his daughter the father shall pay the ten pound yearely untill the fourth degree is passed and shall have nothing of the Donees for it because it was given to his daughter in marriage for her advancement and for that reason the charge is translated from the daughter to the father and the consideration of it is nature Ib. f. 305. a. If I make a contract with another that if he will take my daughter to wife that I wil give him twenty pound if he take her to wife he shall have action of debt for the twenty pound in our Law 22. E. 3. Ass P. 70. and yet I have nothing by it and if a man hath not regard to nature it shall be nudum pactum Ibid. Yet the Law hath such respect to nature and conjunction of blood as in diverse cases it matcheth necessity of blood with the consideration of profit as the sonne may maintaine his father and one brother another 19. E. 4. 5. and Brothers and Cosins shall not wage Battaile in a Writ of Right The statute which maketh it felony to receive or give meat to one which committeth felony he knowing it extendeth not to a woman that receiveth and giveth meat and drink to her husband in such case Ployd Dyer f. 300. A feoffment to the use of himselfe and after his decease to the use of Alice which he intended to marry untill the issue which he doth beget of her shall be of the age of 21. yeares and after the son commeth to such an age then to the use of his wife during her widdow hood the husband dieth without issue it was adjudged the wife shall hold the fee it being by way of use otherwise it had been by estate executed If my brother hath a suit against my Cosin and Nephew I may maintaine the cause of my Cosin though my brother be neerer 4. H. 6. 17. 14. H. 7. 2. If a man menace me that he will imprison or hurt my father or child if I make him not such an obligation and I make it I shall avoid this by duresse as if he had menaced me 15. H. 6. 17. and 21. E. 4. 13. Exception Yet a consideration of blood in a personall contract as to give money is not good Lex respicit naturae ordinem Coke com 197. a. b. The law will not suffer any one to demand any thing contrary to nature and reason As a tenant in common may have an assise for the moiety of twenty shillings and the moiety of a pound of Pepper but for a Hawk and an Horse albeit they be tenants in common they shall joyne in an assise for the law will not permit any one to make his plaint in an assise contrary to the order of nature and which by nature he cannot recover as the moiety of an horse or any other entire thing for that were a vain thing lex neminem cogit ad vana inutilia and the Law compelleth none to vaine and unprofitable things Coke com f. 9. 2. a. The law respecteth the order and course of nature as if the tenant hold by a rose or a Bushell of Roses to pay at the feast of Saint Iohn Baptist because they are flowers not to be kept therefore are they to be delivered at the time of growing and the Lord may demur to distraine till that time neither is the tenant driven by law artificially to preserve Roses for the law in these cases respecteth nature and the course of the yeare For as Littleton here saith ars imitatur naturam art doth imitate nature Ployd f. 540. b. when diverse things are done at one and the same instant and the one cannot take effect without the other the common law shal adjudge it to precede it to follow which aptly ought to precede or follow as if a disseisor maketh a Lease for yeares and then hee and the disseisee release by deed to tenant for yeares there the law shall adjudge the release of the disseisee first to take effect and then the release of the disseisor for there is no privity or estate in the Lessee upon which the release of the disseisor may enure if the release of the disseisee doth not first inure So if tenant for life maketh a Lease for yeares and he and the other in the reversion in fee confirmeth the estate of tenant for years to have and to hold to him and his heires the estate of him for life shall passe first and then he in the remainder vide ibidem Paramors case Sicut natura in suis operationibus non facit saltum ita nec lex Arist 9. de motu animalium Coke com 238. b. as nature in her operations maketh no skips so also doth not the law as the writ de ingressu super discesinam is upon a disseisin made to the demandant or some of his Ancestors of which there are four kinds the first is against the disseisor upon a disseisin done to himselfe and this is called a writ of entrie of the nature of an assise sur disseisin en le pâ—r when the heire by descent is in the per by his Ancestor or when the disseisor maketh a Feoffment in fee gift in taile or lease for life the third is entry suâ— disseisin en le per cui as where A. being the feoffee of D. the disseisor maketh a feoffment over to B. there the disseisee shall have a Writ of entry sur disseisin of lands c. in which â— had no entry but by A. to whom D. demised the same who unjustly and without judgment disseised them These are degrees which are to be observed or else the writ is abateable for as nature so the law doth nothing by skips but by degrees The fourth is the entry sur disseisin in the post which lyeth when after the
the Deed or writing it shall not bind the party that delivered it for it is at the perill of the party to whom the writing is made that the true purport effect of the writing be declared if the party that shall deliver the writing doth require it but if the party who shall deliver the writing doth not require it he shall be bound by the Deed though it shall be contrary to his meaning and it mattereth not though a meere stranger readeth the writing which is well proved by the usuall forme of pleading in such case to wit that he was a Lay-man and not lettered and that the Deed was read to him in other words c. generally without shewing by whom it was read Coke l. 2. Thorowgoods case f. 11. b. If a disseisor dye seised the Disseissee being within age Covert Baron in Prison or out of the Realme it shall be no descent to take away the entry Finch Nomot f. 26. In omnibus fere minori atati succurritur Coke l. 9. 84. In all cases for the most part there is favour shewed to them within age As In a writ of customes and services which is in the nature of a writ of right in which finall judgement shall be given against an infant who is in by descent in 6. H. 3. Tit. page 144. It is adjudged he shall have his age so in a Cessavit against an infant who hath the tenancy by descent he shall have his age though it be upon his own cesser because he cannot know what arrearages he shall tender before judgement and that also is in the nature of a writ of right for if he make not true tender he shall lose his Land 28. E. 3. 99. But in a per quae servitia against an infant who hath the tenancy by descent he shall not have his age because he hath benefit and availe over and above the Premisses and therefore is he called tenant paravaile and it is against reason that when the heire hath profit by the tenancy that he shall not pay annuall rent and it is no mischeife unto him for notwithstanding his Attornement within age he may at his full age disclaime to hold of him or to acknowledge that he holdeth of him by lesser or other services Coke ibidem And regularly it is true that an infant may doe any thing for his own advantage and not to his prejudice as to be an Executor or to purchase without the consent of any other for it is intended his benefit and at his full age he may either agree thereunto or perfect it or without any cause alledged waive or disagree to the purchase and so may his heire if he doth not agree at his full age Coke com f. 2. b. In a writ of mesne the proceedings shall not be stayed for the nonage of the infant because it is not reason that the infant shall be distrained for the services of the mesne during his nonage and shall not have remedy untill he is at full age Coke l. 9. f. 85. a. If an infant make a Feoffment in person if he dye without heire the Land shall not escheate but otherwise it is if it be by letter of Attorny Dyer f. 10. Coke l. 4. f. 125. a. An infant shall sue by procheine amy but defend by guardian Coke com f. 135. a. If an infant buyeth Lands in fee with the mony for which he did sell his own Land yet may he avoid his own alienation Doct. Stud 21. An Execution Elegit and Statute Merchant c. shall not be sued against the heire during his infancy Coke com 290. a. An infant shall avoid matters in faite either within age or of full age but matters of Record as Statutes c. acknowledged by him a fine levied by him or recovery against him by default in a reall action must be avoided by him during his minority to wit Statute by Audita querela and the fine and recovery by a writ of error because they are judiciall acts and taken by a Court or a Judge and therefore the nonage of the party to avoid the same shall be tryed by inspection of Judges and not by the Country and because his nonage must be tryed by inspection this cannot be done at his full age but if that age be inspected by the Judges and recorded that he is within age albeit he come of full age before the reversall yet may it be reversed after his full age Coke com f. 380. b. The Law doth provide for the safety of a mans or womans estate that before the age of twenty one years they cannot alien any Lands Goods or Chattells or bind themselves by deed Coke com f. 171. b. Unlesse it be for necessary meate drink and apparrell necessary physick and such other necessaries and likewise for his good teaching and instruction whereby he may profit himselfe afterwards but it must be pro necâ—ssario vestitu for convenient apparrell and not for Gold lace 11. H 7. and ought to be suitable to his calling Popham Rep. f. 152. But if he bind himselfe in an obligation or other writing with a penalty for the payment of any of these the obligation shall not bind him also all other things of necessity shall bind him as presentation to a benefice for otherwise the lapse should incurr against him Also if an infant be Executor upon payment of any debt due to the Testator he may make an acquittance and in that case a release without payment is void ibidem f. 172. a. If a man inheritor taketh wife who have issue a Son between them and the Father dyeth and the son entreth into the land and endoweth the mother and then the mother alieneth that which she hath in dower to another in fee with warranty and then dyeth and the warranty descendeth to the Son this warranty collaterall shal bar the Son Little but if the Heir be within age at the time of the descent of the warranty he may enter and avoid the estate either within age or at any time after his full age but if he within age at the time of the alienation with warranty and become of full age before the descent of the warranty the warranty shall barr him for ever Coke com f. 380. b. Though no laches shall be adjudged in an infant in case of descent as Littleton saith yet in some other cases laches shall prejudice an infant as laches shall be adjudged in an infant if he present not to a Church within six months for the Law respecteth more the priviledge of the Church that the cure be served then the priviledge of he infant so the publicK repose of the Realme shall be preferred before the priviledge of infancy in the case of a fine where the fine beginneth in the time of the Ancestor As if a fine be levied before the act of non-claime and one of full age had right at the time of the time levied and dyeth within the
it shall be apportioned vide ibidem plura If a man be bound to appeare at a day before Justices at which day the obligor casteth him into Prison so as he cannot come the bond is saved otherwise if he were in Prison for Felony or any other misdemeanor for that is his own act and fault 32. H. 6. Bar 60. Or if he cast himselfe into Prison Nâ—y Max. f. 13. An infants appeale shall not stay for his full age for he shall not take advantage of his own wrong 27. H. 8. 11. One in Execution escapeth and the Goaler taketh him againe the party if he will may have him to remaine in Prison in execution for him still for the escape is his own wrong 13. H. 7. 1. So Coke l. 3. in Britons case If one in Prison upon execution escape if he be taken he shall not bring an Audita querela to discharge himselfe of his imprisonment for he shall not take advantage of his own wrong He that is party to a wrong shall not take advantage by the same wrong Perk. 41. b. As if Lessor and Lessee for yeares joyne in the cutting downe of twenty Oakes the Lessor shall not punish him in a Writ of Wast and take advantage of his own wrong The heire which is party to the death of his Father shall not have an appeale of it And if issue in taile disseise the Discontinuee of his Father and then enfeoff his Father and his Father then dyeth seised and the issue in tail enter he shall not be remitted If Lessee for life of one Acre of Land leaseth the same Acre to his Lessor for yeares the remainder to a stranger in fee and maketh livery and seisin to the Lessor accordingly it is no forfeiture Perkins ib. If tenant for terme of life enfeoff the feme of the Lessor of the same Land leased and maketh a Letter of Attorny to the Lessor to make livery and seisin and he doth so accordingly it is no forfeiture Perk. ibidem f. 42. a. If an house fall down by tempest the Lessee for life or yeares hath a speciall interest to take Timber to reedify the same if he will for his habitation but if the Lessee pull down the house the lessor may take the Timber as parcell of his inheritance and besides have an action of Wast and recover treble damages Coke l. 4 f. 63. a. in Harlackendems case A deviseth lands to B. untill eight hundred pounds be levied for the marriage of his daughters his Son and Heire entreth and concealeth the will receiveth the profits before the will is discovered then the devisee entreth receiveth the profits until they amount to six hundred and forty pounds the heir is to supply the rent for the heire shall not take advantage of his own wrong Coke l. 4. Dormit Lex aliquando jus moritur nunquam Coke com 279. b. For as Littleton there hath it it is commonly said that a right cannot dye For of such an high estimation is right in the eye of the Law as that the Law preserveth it from death and destruction trodden it may be but not trodden out for where it hath been said that a release of right doth in some cases enure by way of extinguishment it is so to be understood as here Littleton saith in respect of him that maketh the release or else in respect by construction of Law it enureth not alone to him to whom it is made but to others also who be strangers to the release which as hath been sayd is a quality of an inheritance extinguished As if there be Lord and Tenant and the Tenant maketh a Lease for life the remainder in fee If the Lord release to the Tenant for life the rent is wholly extinguished and he in the remainder shall take benefit thereof and even so when the heire of a disseisor is disseised and the disseisor maketh a release for life the remainder in fee if the first disseisee release to the Tenant for life this shall enure by way of extinguishment because it shall enure to him in the remainder who is a stranger to the release and yet in truth the right is nor extinguished but followeth the possession to wit the tenant for life hath it during his time and he in the remainder to him and his heirs and the right of the Inheritance is in him in the remainder for a right to Land cannot dye or be extinct in deed and therefore if after the death of tenant for life the heire of the disseisor bring a Writ of right against him in the remainder and he joyne the Mise upon the meere right it shall be found for him because in Judgement of Law he hath by the said release the right of the Disseisee for it is commonly and truly said that right never dyeth but is transferred and conveyed by Feoffments Grants Confirmations Prescriptions or Fines c. releases from one man to another so as the Species of it continually remaineth Res inter alios acta alteri nocere non debet factum unius alteri nocere non debet Coke com f. 152. b Things acted among others ought not to hurt either and one mans deed ought not to hurt another and Coke l 9 f. 59. It is the rule of Law and reason prohibetur ne quis faciat in suo quod nocere possit in alieno sic utre tuo ut alienum non laedas it is forbidden least any one should doe that in his own that may hurt another and so use your own that you injure not another If a man hath a Water-course running in a channell of a River up to his house for his necessary ules and a Glover levy a Lime pit for Calve-skins and Sheep-skins so neer his Water-course that the corruption of the Lime pit hath corrupted it by which his tenants goe out of his house for it an action of the case lyeth as is adjudged in 13. H. 6. 26. b. So he who hath severall Piscaries in his own Water shall have an action of the case against him who erecteth a Dye-house by which he maketh slime filth and other dirty things to run out of the said house into the said Piscaries by which he hath totally lost the profit of the said Piscaries vide in the Book of Entries Nusance f 406. b. vide the same in Aldreds case for erecting of a Swine-house plura alia ibidem And so also in Penruddocks case Coke l. 5. and in Batius case l. 11. 54. Where you shall find diverse notable cases to the same purpose Lessee for yeares shall so take his hedge-boote that he doth not destroy common of Estovers which another man hath there 46. E. 3. 17. He which hath common in Land not inclosed shall keep his Cattle out of a stranges Land 20 E. 4. 11. If Beasts be driven by the high way he ought at his perill to keep them out of the Lands adjacent to the high way
the Law without having regard to the conclusion of the Jurors who ought not to take upon them the judgment of the Law for quod quisque novit c. Ploâ—d Câ—m Amie Townsdens case 5 H. 17. Carus case c. Coke Com. f. 3. b. If an office either of the Grant of the King or subject which concerneth the Administration proceedings or execution of Justice or the Kings revenue or the Common-wealth or the interest benefit or safety of the Subject or the like If these or any of them be granted to a man that is unexpert and hath no skill and science to exercise or execute the same the Grant is meerly void and the party disabled by Law and uncapable to take the same pro commodo regis populi for only men of skill knowledge and ability to exercise the same are capable of the same to serve the King and his people ibidem An Infant is not capable of the Office of a Stewardship of a Mannor either in possession or reversion ibid. and the Civill Law Impubes ab omnibus officiis civilibus debet abstinere Coke l. 11. f. 87. a. The case of Monopolies a Patent made to Sir Edward Bury for the making of Cards was void because he had no skill in making them though the Patent was to him and his Deputy yet if the Grantee himself be inexpert he cannot make a Deputy who is skilfull to supply his place Quia quod per me non possum nec per alium for what I cannot do by my self I cannot do by another Imperitia culpae adnumeratur Reg. s e. Imperitia maxima est mechanicorum poena Co. l. 11. f. 57. a. Ignorance and unskilfulness is accounted a fault and is the greatest punishment of Artists and Mechanicks As 7 E. 3. 65. b. If he that taketh upon him to work be unskilfull and ignorant it is sufficient punishment to him for if any man take upon him to work and doth it amiss an action of the case lyeth against him Ignorantia Juris non excusat The ignorance of the Law doth not excuse Dr. Stud. l. 2. c 46. Ignorance of the Law though it be unvincible that is to say that they have done that in them is to know the truth doth not excuse as to the Law for every man is bound at his perill to take notice what the Law of the Realm is as well the Statutes as the Common Law for all Statutes are made in Parliament and Burgesses are the representatives of the Commons and therefore is alone as if all the Commons had been there present An Infant of the years of discretion may be a Felon and a Trespasser according to the civill Rule Pupillus qui proximus est pubertati capax est furendi injuriae faciendae An Infant who is next to the age of puberty that is of fourteen years is capable of stealing and doing injury though he be ignorant of the Law but that is by the old Maxime of the Law for the eschewing of Murthers Felony and Trespasses Dr. Stud. l. 2. c. 46. vide ibid. plura Coke l. 1. f. 177. a. b. Anthony Mildmay brought an action of the case against Roger Standish because the said Robert had said and openly published that certain lands which lawfully appertained to the said Mildmay were lawfully assured for the terme of a thousand years to Ja. Talbot and Olyff his wife and that they of the interest of that term were lawfully possessed and so for slandring his estate and title shewing all in certain and how he was prejudiced by the said speaking brought his Action And Standish in his plea justified the words upon which the Plaintiff demurred and it was adjudged for the Plaintiff although de facto the said Talbot and Olife had a limitation of those lands by the Will of Sir Henry Sharington in writing for a thousand years which was the occasion that the said Standish being a man not learned in the Law affirmed and published the same yet for that he had taken upon him the knowledge of the Law and interposed himself in a matter not concerned him judgment was given against him for Ignorantia juris not excusat If the Clark mistake Debt for a Detinet in a Writ his ignorance of the Law doth not excuse 20 E. 4. 21. But the Civilians have a Rule In paenalibus judiciis aetati imprudentiae succurritur the Law doth help the party according to his age or ignorance in criminal penal causes which accordeth with the grounds of our Law as if an infant of tender years kill a man it shall not be Felony because he had no scretion or understanding and so it is if a man dedi non sanae memoriae kill another it is not homicide because he hath no memory nor understanding and this as Ploydon saith is properly said to be done ex ignorantia where unvoluntary ignorance is adjudged the cause of the act Ployd f. 19. a. Coke l. 6. f. 54. a. A Capias was awarded against a Countesse by the Court of Common Bench that the Sheriff or his Officer by his warrant without any offence may execute it for they ought not to dispute the authority of Court but they ought to execute the Writs to them directed and to it they are sworn and though it was objected that it appeared by the Capias that shee was a Countesse against whom by Law no Capias in such case lyeth ignorantia juris non excusat and principally the Sheriffs and other Ministers of Law and Justice except in some cases as in cases of contempt yet it was resolved that the Sheriff and his Ministers ought not to examine the judiciall act of the Court but they ought to execute the Writ ibidem in the Countesse of Rutlands case so Dyer fo 60. quod vide Ignorantia facti excusat Coke 2. f. 3. b. in Mansers case the ignorance of the deed excuseth as if an illeterate man be bound to seale a deed he is not tyed to doe it if not any be present to read it if required and also to expound it if it be written in Latine c for ignorantia facti non excusat quae est vel lectionis vel linguae the ignorance of the deed excuseth whether it be of reading or of the tongues Doct. and Stud. l. 2. c. 47. If a man buy an horse in open Market of him that hath no property in him not knowing but that he had right he hath good right to the horse and his ignorance shall excuse him but if he had known the seller had no right the buying in open Market had not excused him So if a man retaine another mans servant not knowing that he is retained by him the ignorance excuseth him both from the common Law and the Statute of 31. Ed. 33. and the penalty thereupon to wit paine of imprisonment if any one retaineth one servant without licence or reasonable cause and so hath the
overcometh the common Law 432 Nemo nascitur artifex No man is born an Artist 418 Neminem oportet esse sapientiorem legibus No man ought to be wiser then the Lawes 418 Nil agit exemplum litem quod lite resolvat An example is of no validity to decide a controversie 133 Nihil dat quod non habet He giveth nothing that hath nothing 24 Nimia subtilitas in jure reprobatur Too much subtlety is rejected in the Law 458 Nihil est magis justum quam quod necessarium There is nothing more just then that is necessary 432 Nihil agit in seipsum nothing acts upon its self 43 Nihil in lege intolerabilius est quam eandem rem diverso Jure teneri There is nothing more intollerable in Law then the latter Judgment to contradict the former 127 Nihil magis consentaneum est ut iisdem modis res dissolvatur quibus constituitur nihil tam conveniens est naturali aequitati unum quodque dissolvi eo ligamine quo ligatum est There is nothing more meet and convenient to naturall equity then that every thing shall be dissolved by the same means or bonds it was first bound or constituted 80 Nihil est tam conveniens naturali aequitati quam voluntatem domini volentis suam rem in alium conferre ratum habere Nothing is more convenient to naturall equity then to confirm the will of the Lord willing to transfer his estate to another Non debet cui plus licet quod minus est non licere It ought not that to whom it is lawfull to do more that it shall not be lawfull to do the lesse 120 Non debet mulieribus assignari castra in dotem quae fueraut virorum suorum quae de bello existunt Castles ought not to be assigned to women for their Dower which did appertain to their Husbands and were fortresses of war 150 Noxa caput sequitur The offence followeth the head Non est regula quin fallit There is no rule but faileth 315 Non licet quod dispendio licet That is not lawfull which is lawfull to my losse 466 Non valet impedimentum quod de jure non sertitur effectum The impediment availeth not which taketh not effect from the Law 247 Nomen non sufficit si res non sit de jure aut de facto The name of the thing is not sufficient unlesse the matter be of right or fact 259 Non valet pactum de re mea non alienanda A Contract that I shall not alien what is my own is of no force 29 Non refert quid ex aequipollentibus fiat It mattereth not what is done by equipollency 138 Notationes sunt quasi rerum verae notae Notations are are as it were true signes of things Nobiliores benigniores praesumptiones in dubiis sunt praeferendae The most noble and favourable presumptions in doubts are to be preferred 26 Non impedit clausula derogatoria sive clausula de non obstante quo minus ab eadem potestate res dissolvantur a quibus constituuntur Acts which are in their nature revocable cannot with a non obstante be fixed and perpetuated 63 Non pertinet ad Judicem secularem cognoscere de iis quae sunt spiritualibus annexa It doth nor appertain to a secular Judge to take cognizance of those things which are annexed to spirituall things 378 Novum judicium non dat jus novum sed declarat antiquum A new Judgment doth not make a new Law but declareth the old Law 380 Non refert an quis assensum praebeat verbis an rebus factis It mattereth not whether a man giveth his assent by words or by things themselves and Deeds 471 Nullum simile currit quatuor pedibus Nothing that is like runneth upon foure feet and is altogether the same 116 Nullum exemplum est idem omnibus There is no example the same to all 126 Nullus commodum capere potest de injuria propria No man can take advantage of his own wrong 270 Nullus liber homo amercietur nisi secundum quantitatem delicti No man ought to be amerced but according to the quantity of his offence 301 Nunquam prospere succedunt res humanae ubi negliguntur divinae Humane affaires never succeed prosperously where Divine Rights are neglected 7 Nullum tempus occurrit regi No prescription of time prevaileth against the King 350 Nullum iniquum in jure est praesumendum No unjust thing is to be presumed by Law 248 O. OFficia magistratus non debent esse vaenalia Magistraticall Offices ought not to be exposed to sale 367 Officia Judicialia non conceduntur antequam vacent Judiciall Offices ought not to be granted before they are void 370 Omne mandatum est temporaneum All commands are temporary 385 Omnia quae movent ad mortem sunt deodanda All things which move to death or whereby death ensueth are Deodands Omnia tempus habent habent sua tempora tempus All things are subject to time and time its self hath also its time 105 Omne majus continet in se minus Every greater containeth in it the lesse 118 Omne majus dignum trahit ad se minus dignum Every greater worthy draweth unto it the lesse worthy 121 Omnis privatio praesupponit habitum Every privation presupposeth an habit 125 Omnis propositio est aut vera aut falsa Every proposition is either true or false 136 Omne actum ab agentis intentione est judicandum Every act is to be adjudged by the intention of the agent 197 Omnis ratificatio retro trahitur mandato aequiparatur Every ratification or approving of any thing looketh back and is all one as if a man had given commandment at the first 42 Oportet quod certae personae certae terrae certi status compredentur in declaratione usuum It behooveth that certain persons certain lands and certain estates be comprehended in the Declaration of uses 37 Oportet ut res certa ducatur in judicium It behoveth that a thing certain shall be brought into judgment 38 Optimi ducis est scire vincere cedere prudentur tempore It is the part of an excellent Captain to know and to overcome and wisely to yeild unto the time 415 Optima statuti interpretatio omnibus particulis ejusdem inspectis est ipsum statutum injust m est nisi tota lege inspecta una aliqua parte proposita Judicare vel respondere The best Expositers of Acts of Parliament are Acts of Parliament themselves by construction and conference of all the parts together 424 Oportet patrem familias vendacem esse non emacem A Father or a Family ought to be a Buyer nor a seller 400 Optimum est militem deligare non emeâ—e It is best to choose a Souldier and not to buy him 409 Origo rei inspici dâ—bet The beginning of a thing is to be looked into 89 P. PArte quacunque