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
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
seised by word assigned Dower to the Feme which she accepteth yet was it adjudged that that refusall of the estate of inheritance and acceptance of her Dower in pais shall not devest the Frank-tenement out of her So 13 Ric. 2. Joynt-tenancy a Charter of Feoffment was made to foure and seisin delivered to three in the name of all and after the Seisin delivered the fourth commeth and vieweth the Deed and saith by word that he will have nothing in the Land and it was adjudged that that agreement by word in pais shall not devest the Frank-tenement out of him and Thorp 35 Ed. 3. Disclaimor said that in such a case the Tenement remained in all untill a disagreement in Court of Record So if there be Lord and Tenant by Deed enfeoffeth the Lord and a stranger and maketh Livery to the stranger in the name of both if the Lord by word disagreeth to the estate it is nothing worth but if he enter into the Land generally and take the profits that amounteth to an agreement to the Feoffment but if he enter into the Land and distrain for his Seignory that act amounteth to a disagreement of the Feoffment and shall devest the Frank tenement out of him 10 E. 4. 12. by all the Justices But if Lands be given to Baron and Feme and after by the Statute of 32 H 8. the Baron alieneth the Land to the use of him and his heires and after deviseth it to his wife for life the wife enters claiming by word the estate for life this is a good agreement to the estate for life and a good disagreement to the estate of inheritance Dyer 351. b. And if A. maketh an Obligation to B. and deliver it to C. to the use of B. this is presently the Deed of A. But if he offereth it to B and he refuseth it in pais by it the Obligation shall lose his force Dyer 167. The same Law is of the gift of goods and chattels and if the goods be delivered to the use of the Donee the goods were in him presently but he may refuse them in pais and by it the property shall be determined ibidem SECT III INclusio unius est exclusio alterius Coke l. 11. f. 50. a. b The inclusion of one thing is the exclusion of another As when an act of Parliament giveth a power and interest to one certain person by that expresse designation of one all others are excluded although such a statute be in the affirmative As where the statute of 31 E. 3. c. 12. it was provided that error in the Exchequer shall be corrected and amended before the Chancellor and Treasurer and therefore it could not be corrected before any other and the generall Rule is put that when any thing is to be done before any person certain by any statute it cannot be done before any other and yet the statute of 31 E. 3. is in the affirmative Ployd 106. b. in Stradlings case So whereas by the statute of 8 H. 6. c. 9. forcible Entry is designed to the Justice of Peace to make restitution by it others be excluded though the statute be in the affirmative and therefore neither Justices of Oyer or Terminor or of Goal-delivery c. shall do it Dallisan 3 Eliz vide ibid. plura And this is true in all acts which are the introduction of a novel Law as the above said acts are but where acts of Parliaments are no introductions of a new Law it is otherwise So the act of 35 Eliz. doth not exclude those to whom the Forfeitures are limited by the act of 23 Eliz because by it they are not given to a new person but to the same person to wit the Queen and is but an act of addition to give more speedy remedy As the statute of W. 2. c. 9. in a VVrit of Mesne giveth more speedy proces and in the end fore-judger whereas the proces at the Common Law was but Distresse infinite yet the Plaintiff may take which proces he will either at the Common Law or upon the statute because they are both in the affirmative Coke l. 11. f. 64. a. And also in many cases the designation of a novell person in a latter act of Parliament shall not exclude another person that was authorized to do the same thing by an act precedent As by the statute of 8 H. 6. c. 16. after Office found he who found himself grieved might within a moneth after traverse take the Tenements to farm that then the Chancellor Treasurer or other Officer shall demise to him to farm untill c. 13 E. 4. f. 8. and yet by the statute of 1 H. 8. c. 16. he hath liberty by the space of three monthes and after by the statute of 32 H. 8. c. 40. the Master of the Court of Wards by advice of own of his Councell is authorized to make a Lease of Land in VVard or an Ideot And though the latter act design another person yet it is not the first altogether taken away for before any Lease made by the Master of the VVards the Chancellor and Treasurer may do it and so e contrario as Stanf. holdeth Prerog f. 69. a. b. VVhere he maketh mention of this Rule â—eges posteriores priores contrarias abrogant vide ibidem plura Coke com f. 210. a. If the Condition upon a Mortgage be to pay to the Mortgagee or his heires the money and before the day of payment the Mortgagee dyeth the Lessor is not to pay the money to the Executors but to the Heire for in this case designatio unius personae est exclusio alterius Consensus tolliâ— errorem Coke com f. 37. a. Consent taketh away error As Dowment ad ostium Eclesiae ex assensu patris seem to be good albeit the wife be within the age of nine years But without question for the same reason a Joynture made to her under or above the age of nine years is good ibidem Coke com f. 125. b. a. If a Venire facias be awarded to the Coroners where it ought to be to the Sheriff or the Visne cometh out of the wrong place yet by assent of the parties and so entred of Record it shall stand for all consent taketh away error ibidem Coke l. 5. f. 36. b. Dyer 367. in Bainhams case Coke l. 5. f. 40. a. b. in Dormers case A common Recovery is not to be resembled to a judgement or proceeding at the common Law for by usage and custome it is become a common assurance and conveyance of Lands and because it is done by mutuall consent errors are not to be allowed for consensus tollit errorem If the Demandant and Tenant consent that two of the foure in a Writ of Right shall be Esquires where by the Law they ought to be Knights and well because by consent Tryall of Villenage was altered from the naturall tryall by consent Pleader of a Feoffment upon condition without deed and
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
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
the obligation is good and the Obligee may declare upon a Solvendum to himselfe 4. E. 4. 29. for contraria non possunt simul esse in eodem subjecto Arist 5. Phys contraries cannot be together in the same subject Omnis privatio presupponit habitum every privation presupposeth an habit Coke com f. 341. b. and l. â—0 f. 86. b. To many purposes a Parson hath in effect but an estate for life and to many a qualified fee but the entire fee and right is not in him and that is the reason that he cannot discontinue the Fee-simple that he hath not nor ever had for every privation presupposeth an habit From authority and example ARgumentum ab authoritate firmissimum est in lege an argument from authority is the strongest in Law Coke com 254. a. our Book cases are the best proofes what the Law is and after the example of Littleton Booke cases are principally to be cited for deciding the cases in question and not any privatâ— opinion according to the rule Nulla hominis authoritas tantum apud nos valere debet ut meliora non sequeremur si quis attulerit no mans authority ought to prevaile so much with us as that we may not follow the better whosoever shall alledge it as Littleton here rejecteth the opinion of Newton and followeth the better authorities in Law Coke com f. 383. a. And whereas by the Civil Law as Sir John Davis observeth every Doctors opinion is vouched and cited of them as good authority it must needs breed distractions of opinions and variations according to which sense the logicall axiom is to be taken locus ab authoritate est infirmissimus Boethius An argument from authority is most weake and prevaileth little or nothing in resolving the question as the Poet pressely Nil agit exemplum litem quod lite resolvat to cleere a quaere example stands for nothing whereas our Law arguments are deduced from the strength of cases apt to the purpose and presidents of former times founded on the discourse of reason and consideration of the wisest and sagest Judges and are no inartificiall arguments as ipse dixit or teste me ipso but are drawn out of the termes and bowells of the issue by arguments and conclusions of reason Nullum exemplum est idem omnibus Coke com 212. a. 317. b. No example is the same to all and therefore it is the best meanes in all assurances to take counsell of learned and well experienced men and not onely to trust without advise to presidents for as the Aphorisme holdeth in the state of a mans body nullum medicamentum est idem omnibus no salve is the same to all so doth the rule in the estates and assurances of Lands no example or president is the same to all Periculosum existimo quod virorum bonorum non comprobatur exemplo Coke com f. 81. b. I deeme it dangerous that is not approved by the president of good men and therefore it appeareth how safe it is to be guided by judiciall presidents Littera scripta manet Coke com f. 115. a. A written word remaineth and therefore a record or sufficient matter in writing is a good memoriall whence it is said when we will by any record or writing commit the memory of any thing to posterity tradere memoriae and for this reason it is that regularly a man cannot prescribe a custome against a statute because it is matter of record and is the highest proof and matter of record in Law yet a man may prescribe against an Act of Parliament when by prescription and custome it is saved by an other Act of Parliament Nihil in lege intolerabilius est eandem rem diverso jure teneri Coke l. 4. f. 93 in Slades case There is nothing more intollerable in law then that the latter judgement should contradict the former and therefore 37. H. 6. f. 22. Aske said such Charters have beene allowed in the time of our Predecessors who were as sage and learned as wee and Markham 5. E. 4. f. 41. It is good for us to doe as it hath been used in former times and not to keepe one way one day for one party and another day the contrary for another party The former presidednts are enough for us to follow So 11. E 3. Title Formedon 22. It was holden that ancient formes and manner of presidents are to be maintained and observed and 34. Ass Pl. 7. That which hath not been according to usage shall not be permitted and in 2. E. 3. 29. The ancient forme and order is to be observed and 39. H. 6. 30. The opinion of Prisâ—t and all the Court was that they would not change their use notwithstanding that their opinion was to the contrary and 4. E. 4. 44. All the Justices said we cannot change the course hath been before for it should be inconvenient and it is said 3. E. 4. 1. That the course of Courts maketh a law And therefore all the Justices in ancient times and from time to time being as well in matters of forme as in deciding of doubts and questions and as well at the common law as in construction of Acts of Parliament have given great regard to the ancient presidents and judgements of the preceding judges as Ployd f. 99. b. It was advised by the Court according to the book of 7. H. 4. That an accessary shall not be arraigned as an accessary to one principall untill the other principals may be attainted because it did seeme the better way to the Court to pursue the same order that the Sages before had used And so here in Slades case in respect of the infinite presidents which the Secondary of the Prothonotaries of the Kings Bench did shew to the Court it was resolved before all the Judges of England in the Exchequer chamber that though an action of debt lyeth upon a contract yet the Bargainer may have an Action of the case or an Action of debt at his election Coke ibidem Mos retinendus fidelissimae vetustatis quae praeter consuetudinem morem majorum fiunt neque placent neque recta videntur frequentia actus multum operatur The ancient manner of the most faithfull antiquity is to be retained and what are contrary to the custome and use of the Elders doe neither please nor seem right and the frequency of acts worketh much Coke l. 4 f. 74. and therefore it was there resolved by the chief justices Popham Anderson and by Pyriam chiefe Baron and other justices that the ancient and usuall elections of Mayors Bayliffs c. by a certaine selected company of the principals of the commonalty and Burgesses commonly called the common councell c. were good and well warranted by their Charters and by their lawes also Multa ignoramus quae nobis non laterent si veterum lectio nobis fuit fâ—miliaris Coke l. 10. 73. We are ignorant of many things which would not be
est haeres viventis and the remainder is onely good upon this contingent if I. S. dieth during the life of the lessor Coke com f. 378. a. But if lands be given to A. and B. so long as they joyntly together live the remainder to the right heires of him which dieth first and warranteth the land in forma praedicta A. dieth his heire shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heire of A. have the land by descent vide ibidem 378. b. Justum non est aliquem ante natum mortuum facere Bastardum qui toto tempore suo pro legitimo habebatur Coke l. 8. f. 101. a. b. It is not just to make any one a Bastard borne before marriage being dead who all his life time was accounted legitimate For by the law of England if such a Bastard which the law termeth Bastard eigne doth continue possession in peace that is if the mulier make no entry for the Bastard eigne or continuall claime and so dieth in peace his issue is become right heire and will bar the mulier because he was legitimate by the lawes of the holy Church For though the subsequent marriage doth not make a Bastard legitimate quoad consuetudinem regni as â—ract phraseth it in regard of the custome of the Realme yet quoad sacerdotium in respect of the Canon law it doth and in this case of legitimation which in law is so precious and of so great estimation the law respecteth neither infancy or other defects in the mulier but preferreth legitimation of blood before any benefit of temporall inheritance and therfore the law saith that by the death of Bastard eigne in peace his issue is become right heire and by consequence the mulier is barred and the descent doth not onely take away the entry but the right also and therefore descent in this case shall be a bar to right as descent of services rents reversions expectant upon an estate taile shall bar the right of the mulier 14. E. 2. Bastardy 26. but not the entry or claime of the disseisee But if a Bastard eigne dieth without issue so as the land doth descend the mulier shall have it ibidem and if the Lord by escheat entreth this shall not bar the mulier because no descent Coke com 244. If there be Bastard eigne and mulier puisne and the father maketh lease for life reserving rent and the bastard eigne receiveth the rent and dieth having issue this shall barr the mulier Coke com f. 15. a. If a man hath issue a son being a Bastard eigne and a daughter and the daughter is married the father dieth and the son entreth and dieth seised this shall barre the feme covert and the descent in this case of services rents reversions expectant upon estate or for life whereupon rents are reserved c. shall bind the right of the mulier but the descent of these shall not bind them that right have to an Action Coke com f. 244. a. So if the Bastard dieth seised and his issue endoweth the wife of the Bastard the mulier cannot enter upon tenant in dower for his right was barred by the descent ibidem If the Bastard eigne entreth into land and hath issue and entreth into religion this descent shall bar the right of the mulier ibidem If a man hath issue two daughters the eldest being Bastard eigne and they enter and occupy peaceably as heires the law shall not adjudge the whole possession in the mulier so as if the Bastard had issue and died her issue shall inherit and if they make partition that partition shall binde the issue for ever Coke com 244. a. b. And such a Bastard being impleaded or vouched shall have his age If a man hath issue a Bastard eigne or mulier puisne and the Bastard in the life of the father hath issue and dieth and then the father dieth seised and the son of the Bastard entreth as heire to his Grand-father and dieth seised this descent shall bind the mulier ibidem b. If the Bastard enter and the mulier dyeth his wife being privement with a Son and the Bastard hath issue and dyeth seised the Son is borne his right is bound for ever but if the Bastard dyeth seised his wife enseint with a Son the mulier entreth and the Son is borne the issue of the Bastard is barred ibidem 244. a. If the bastard eigne entreth and the King seiseth the Land for some contempt committed by the Bastard for which the King receiveth the profits of the Land and the Bastard dyeth and his issue upon petition is restored to the possession the mulier barred for ever But when the King seiseth for a contempt of the Father c. if the issue of the Bastard eigne upon petition be restored for that the seisure was without cause the mulier is not barred for the Bastard could never enter but the possession of the King in that case shall be adjudged in the right of the mulier Coke ibidem f. 245. b. Bastardus nullius est filius Littleton Coke com f. 203. a. aut filius populi Coke l. 6. f. 6. A bastard is the Son of none or the Son of the people according to the common report Cui pater est populus pater est fibi nullus omnis Cui pater est populus non habet ille patrem To whom the people Father is to him is Father none and all To whom the people Father is well Fatherlesse we may him call For as the civilians pater est quem nuptiae demonstrant he is a Father whom the espousalls and nuptialls shew so to be And therefore if a wife have a bastard it shall not be a villaine or if a villaine have a bastard by a woman and marrieth her the bastard is no villaine because he is nullius filius though some hold the contrary as Bracton and Britton for in both cases the issue at the common Law is a bastard quasi nullius filius Coke com f. 123. a. And though a bastard be a reputed Son yet is he not such a Son in consideration whereof an use may be raised because in judgement of Law he is nullius filius Dyer 374. And for the same reason where the Statute of 32. H. 8. of wills speaketh of children bastard children are not within that statute and a bastard of a woman is no child within that Statute where the mother conveyeth Lands unto him Dyer 313. Qui ex damnato coitu oriuntur inter filios non computantur Coke com f. 3. b. Who are borne of condemned or unlawfull copulation are not to be reckoned among children as a man maketh a lease to B. for life the remainder to the issue male of B. and the heires males of his body B. hath issue a bastard Son he shall not take the remainder because
Which giveth a Writ of Formedon in the remainder against the pernors of the profits was made for oppression of covin for the Feoffment made to persons unknown to defraud them who had right to the Land was a great covin and deceite in Law and therefore a Scire facias to execute a remainder shall be maintainable against pernors of the profits Ployd f. 59 b. in Wimbishes case So in Twins case l. 3. f. 82. It was resolved by the whole Court that Statutes made against fraud shall be liberally and favorally expounded to suppresse fraud because fraud and deceite abound more in these days then in former times where you may finde in Pennyfoots case and diverse other cases to that effect and purpose Quod alias bonum justum est si per vim vel fraudèm petatur malum injustum est Coke l. 3. s 78. a. what otherwise is good and just if it be acquired by force or fraud is evill and unjust and as Ploydon saith Covin may alter the marter though the title be good and covin to have recovery may be as well where the title is good as where it is faint and bad And therefore the Book is M. 15. E. 4.4 If a feme have cause of dower and is of Covin that the tenant shall be ousted by A. against whom shee recovereth and hath execution that her estate shall be adjudged against the Disseissee by disseisin and shall not hold it but shall be a Disseiseresse and yet the title of recovery is good and true but the Covin is the cause of it Ployd f. 59. Coke l. 3. f. 78. a. So if issue in tail who hath good cause to have a Formedon in the Descender upon discontinuance be of Covin that A. shall disseise B. against whom he doth recover he shall not be remitted although his title is good but shall be adjudged a Disseisor by reason of the Covin M. 10. H. 8. And in 19. H. 8. Where one disseised tenant in taile by Covin to the intent to enfeoff the issue in taile within age who had no cognisance of the Covin and he enfeoff him he shall not be remitted by the better opinion notwithstanding his good title and the covenous intent is the cause onely Ployd f. 51. 54. And so is it there holden by six Justices Coke l. 3. f. 78. in Fermors case And the reason there given is because he that is in by him that made the Covin shall be in the same plight as he that made the Covin and yet infants are much favored in Law It was found by office that one F. that had good cause of action of ad terminum qui praeterij◠against an infant in by descent caused one H. to disseise the Heire by Covin against whom he recovered by his Writ of Entry ad terminum qui praeterjit whereupon this Office found the King of whom the land was holden had restitution to the Land during the nonage of the heires notwithstanding the plea and averment of F. in maintenance of his title so as though the title was good yet if covin was practised by him who had title to come to it he shall not be remitted Ployd f. 48. b. 41 Ass 28. For the common Law so abhorreth fraud and covin as all acts as well judiciall as others and those who of themselves are just and lawfull yet being mixed with fraud and deceit are in judgment of Law injurious and unlawfull Coke l. 3. f. 78. a. And so Coke l. 4. f. 113. a. in Adams case A man deviseth Tenements to superstitious uses and to good and charitable uses as to teach a Grammar Schoole yet because the good and charitable uses were mixt with superstitious uses and nothing in certaine was limitted to a good use in such case the commixture of the evill use with the good use infecteth the good use as a little poyson commixed with a great quantity of Wine or as truth mixed with covin turned the goodnesse of the one into the naughtinesse of the other And 19 H. 8. 12. If a man make a disseisin with the intent to make a Feoffment with warranty although he make the Feoffment twenty moneths after yet it is a warranty commenceth by disseisin Ployd f. 51. So if one make a gift in taile to another and the Uncle of the Donor disseise the Donce and maketh a Feoffment with warranty and the Uncle dyeth and the warranty descendeth upon the Donor and then the Donee dyeth without issue the Donor bringeth a Writ of Formedon in reverter and the Tenant pleadeth the Feoffment with the warranty the Demandant shall avoyd it because it commenced by disseisin and yet the disseisin was not immediately made to the Donor but to the Donee but by it his reversion was devested and yet warranties are much favoured in Law It is a rule in the Civill law Neminem ex suo dolo calliditate relevari that no man is releived by his fraud and deceite And it is an erudition in the common Law Fraus dolus nemini patrocinari debent Fraud and deceit ought not to be patronized in any Coke l. 3. f. 78. b. There is dolus bonus and dolos malus say the Civivilians dolos bonus is when a man doth devise any plot to entrap a theef or offendor and this cannot properly be called fraude but solertia and cunning and such a kind of cunning is practised in war-fare by which more victories are atcheived then by maine force as Tacitus plura consilio L. 1. An. quam vi geruntur But dolus malus is a subtile devise used to the deceiving another or the Law and this deceit doth not in out Law escape punishment but affordeth a double remedy against such who endamage others by deceit either a Writ of deceite or action upon the case As if I. present one to a Church being Patron and one T. disturbeth me and another in my name purchaseth a Quare impedit without my knowledge against the said T. and after causeth the Writ to be abated or I non-suite in the action I may have a Writ of deceit against him 55. E. 3. Quare impedit 37.20 H. 6.20 And an action of the case is maintainable against him who sueth an originall in the name of the Plaintiff against his will 7. H. 6.45 So if any one forge a Statute Merchant in my name and sue a Capias thereupon whereby I am arrested and had in execution a writ of deceit lyeth against him 19. H. 6.44 So if the guardian of an infant vouch one by covin who is not sufficient or pleadeth a bad plea whereas he might have pleaded a better the infant shall have a writ of deceit against him and recover the full value in damages 9. E. 4.34 A writ of deceit was brought against an Attorny for acknowledging satisfaction whereas his Master was not in truth satisfied 11. H. 6.34 In a Praecipe quod reddat if the Sheriff returne the
that it may appear to the Court that it is granted pro negotiis regni pro bono publico for the common profit of the Realm and as Britton saith for our service as to be in our force and defence of us and our people Coke comm f. 130. And it is a rule in the Civill Law which for the reasonableness of it all Nations follow Eorum qui in potestate paiâ—â—s â—unt sine voluntate ejus matrimonia jure non contrahu â—ur sed contracta non solvuntur They who under the power of their Father cannot lawfully contract Matrimony without their will and consent but being contracted are not to be dissolved Contemplatio enim utilitatis publitae privatorum commodis pâ—aefertur For the consideration of the publick good is to be preferred before private profit Fulâ— Pand. f. 28. Finis legis pax est Ployd f. 388. The Justice said that peace and concord were the end of all Lawes and for peace the Law was made And Dyer said that for peace Christ descended from Heaven on Earth and the Divine Lawes of the old and new Testament were given for peace Bacon H. 7. f. 233. And Bacon saith When Christ came into the world peace was sung and when he went â—ut of the world peace was bequeathed And Weston cited S. Aug. Concordia stat augetur respublica discordia ruil diminuitur By concord the Common weale standeth and flourisheth and by discord it is diminished runneth to ruine And Cataline said that the Charriot wherein Peace was carried was unanimity the Rector of the Charriot Love the Horses which drew it Concord and Utility and her company and consorts were Justice and Truth and Diligence and her incidents were the attainment and advancement of all Arts and Sciences and therefore peace which bringeth so many commodities ought to be preserved above all other things And Dyer said that it was one of the Atticles to which the King is sworn at his Coronation to his subjects to do that he preserve the peace for nothing of greater benefit he cannot grant to them And therefore those Lawes which bring the more peace are the more to be esteemed as the Law is touching fines which bringeth to the Possessors of Inheritances security and maketh the certainty and therefore Carus said they were the more worthy because certainty engendereth repose and incertainty contention and to avoid incertainty in Inheritances Fines were devised by the Founders of our Lawes at the beginning of Law for no point of our Law is of greater antiquity and for it Glanvill was cited by Cataline who lived in the time of Richard the first that Contingit aliquando loquelas motas in Curia domini regis per amicabiâ—em compositionem finalem concordiam te minari sed ex licentia regis vel ejus justiciariorum It happened sometimes that Libells and Suites moved in the Court of the Lord the King were ended by a loving composition and finall concord but by the licence of the King or of his Justices And Bracton therefore is it called a finall concord because finis finem litibus imponit because a fine putteth an end to all Suits vide ibidem plura And for the same reason are Recoveries advanced by the Law above all other assurances even fines themselves and as Bacon are the greatest security Purchasers have for their monies for a fine will bar the Heir entail but not the Remainder but a common Recovery barreth as well Estates taile as also all Reversions and Remainders expectant an dependant except in the Kings case where the Remainder or Reversion is in the King and then by the Statute of 34 H. 8. it barreth neither the Estate tail nor the Remainder saving where the King is the Giver of the Estate tail and leaveth the Reversion to himself Bac. Vses f. 52. 53. and Dr. Student l. 1. c. 26. And therfore by the Statute of 23 Eliz. c. 4. It s provided that for the avoiding the danger of assurances and for the advancement of common recoveries that every common recovery shall not be avoided for any want of form in words and not in matter of substance So the common Law is the preserver of peace and abhorreth all force as a capitall enemy to it and therefore is more severe against those which commit any force and subjecteth their bodies to imprisonment whereas at the common Law upon a recognizance or judgement for debts and damages a common person onely shall have execution of his Goods and Chattells and of the Corne or other present profit groweth upon the Land but it is a rule at the common Law that in all Actions Quare vi armis a Capias lyeth and where a Capias lyeth in Processe there after Judgement a Capias ad satisfaciendum lyeth which is the highest execution by which he shall loose his liberty untill he hath made satisfaction to the party and fine to the King and the King shall have a Capias pâ—o fine Coke l. 3. f. 12. a. in Herberts case vide ibidem plura And therefore all actions upon the case for corporall injuries as forcible Entries Assaults and Batteries which tend to the breach of the peace may not onely be pursued by action but Enditement and are more severely and largely taken and punished by the common Law As if foure men enter into Land and one of them entreth by force this is force in them all and may be impleaded by action or impeached by enditement 2. E. 3. 12. Communis error facit jus a common error maketh right Dr. Stud. c 26 f. 46. The Law so favoureth the publick quiet that it will permit a common error to passe for right and therefore though it be objected that common recoveries were fâ—rst had upon feyned and unlawfull ground and against the good order of conscience neverthelesse for as much as they have been used a long time so as they have been taken of diverse men that have been right well learned in manner as for Law that the buyers partly are excused so that they be not bound to restitution and therefore Ployd in Manxells case f. 2. whâ—ther a common recovery barreth an estate taile is not to be disputed because a great part of the inheritance of the Realme depend upon it So an acquittance made by a Mayor in his own name where the Towne is incorporate by the name of a Mayor Sheriff and Burgesses shall be allowed for good if there be an hundred precedents and more of like acquittances that is for common quietnesse and accordingly the Civilian Bodin saith l. 2. de repub Diuturnitas temporis efficere potest ut quod pernitioso more exemplo inveteravit potentius ipsa lege dominetur the long continuance of time may effect that what by pernitious example Custome hath grown old may rule more powerfully then the Law it selfe and therefore as learned Patricius saith Concedendum est aliquid consuetudini
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
affectum tribuit delinquendi minatur innocentes qui parcit nocentibus Coke l. 4. f. 45. a. Evil doings ought not to go unpunished because impunity ministreth a continuall affection of offending and he threatneth the innocent who spareth the Delinquent And Aristotle Pol. 7. Actiones justitiae sunt necessariae in civitate licet non eligibiles Though the actions of Justice that is the sentences and punishments of evill and condemned persons are not secundum se of their own nature eligible yet are they necessary in a City that the City may be the better ruled and saved for as Solon there are two things and tyes by which a Common-wealth is contained and preserved praemium poena reward and punishment and it is truly said Etsi meliores sunt quos ducit amor tamen plures sunt quos corrigit timor Thoughâ— they be the better persons whom the Love of goodness vertue draweth yet there are more whom the fear of punishment doth deter and correct and therefore the wisdome of our Law doth abhor that greater offences should pass unpunished So as that if a man be convict either of verdict or by confession upon an insufficient Indictment and no Judgment upon it given he may again be indicted and arraigned because his life was never in jeopardy and the Law wanteth his end which provideth that no evill Deeds should pass unpunished Coke l. 4. f. 45. a. for as Coke saith l. 5. f. 53 b. Oderunt peccare mali formidine penae The wicked to offend themselves refrain And from the same are scar'd for feare of pain And therefore by the Common Law is the offence of felony so severely punished and though the Judgment against such a Malefactor in that he shal be hanged by the neck untill he be dead yet implicitively he is punished First in his wife that she shall lose her Dower Secondly in his Children that they shall become base and ignoble Thirdly that he shall lose his Posterity for his blood is stained and corrupted that they cannot inherit to him or to any other Ancestor Fourthly that he shall forfeit all his Lands and Tenements which he hath in fee or in tail or for term of his life And fifthly all his Goods and Chattels And the reason was that men should fear to commit Feloâ—y ut poena ad paucos metus ad omnes perveniat that the punishment might be inflicted on few and the feare may come to all But some Acts of Parliament have altered the common Law in some of these points as by the Statute De donis conditionalibus lands in tail were not forfeited neither for Felony nor for Treason but for the life of Tenant in tail And this Law continued in force from the thirteenth year of Edward the first untill the twenty sixth year of Henry the eighth when by Act of Parliament Estates in tail are forfeited by attainder of high Treason but as for Felons the Statute De donis Conditionalibus doth still remain in force so as for attainder of Felony Lands and Tenements in tail are not forfeited but onely during the life of Tenant in tail but the Inheritance is preserved for the Issues but being attainted of high Treason or Petit treason the wife shall not be received to demand her Dower but in certain cases specially provided for Ployd f. 195. Coke com f. 392. a. b. And now the wife of a person attainted of misprision of Treason Murthâ—r or Felony is dowable by the Statute of 5 E. 6. c. 〈◊〉 c. in that case made and provided which is more favourable to the women then the Common Law was Coke ibidem Receditur a placitis Juris potius quam injuâ—iae delicta maneant impunita Bac. Max. f. 51. The Law will dispence with some grounds of the Law rather then crimes and wrongs should be unpunished quia salus populi suprema lex the safety of the people is the supream Law and the safety of the people is contained in the repressing of offences by punishment It is a positive ground that the accessory in Felony cannot be proceeded against untill the principall be tried yet if a man by subtility and malice set a mad man by some device to kill one and he doth so now forasmuch as the mad man is excused because he cannot have any will or malice the Law accounteth the Incitor as principall though he be absent rather then the Crime shall go unpunished 13 Eliz 1. So it is a ground in the Law that the appeal of Murther goeth not to the Heire where the party murthered hath a wife nor the younger brother where there is an elder yet if the wife murther the husband because she is the party Offendor the appeal leapeth over to the heire and so if the Son and Heir murther his Father it goeth to the second brother Ed. 4 M 28. 6. Stanf. l. 2 f. 60. But if the Rule be one of the higher sort of Maximes that are regulae rationales and not positivae then the Law will endure rather a particular Offence to escape without punishment then violate such a Rule As it is a Rule that penall Statutes shall not be taken by equity And the Statute of 1 E. 6. enacteth that those that are attainted for stealing of Horses shall not have their Clergy The Judge conceived that this should not extend to him that should steal but one horse and therefore procured a new act for it in 2 E. 6. c. 33. for it is not like the case upon the Statute of Gloucester that gâ—â—â—â—h an action of waste against him for term of life or years and yet if a man hold for a year he is within the Statute for penall Lawes are taken strictly and litterally onely in the point of defining and setting down the fact and punishment and in those clauses that concern them and not in generall words which are but circumstances and conveyances in the putting of the case and so note the diversity for if the Law be that for such an offence a man shall lose his right hand and the Offendor hath his right hand cut off in the Wars he shall not lose his left hand but the crime shall rather pass unpunished vide ibidem plura Nemo punitur pro alieno delicto Coke com f. 145. b. No man is punished for another mans fault And therefore the Defendant in a Replevin cannot claim property by his Bayliff or Servant and the reason is for that if the claim fall out to be false he shall be fined for his contempt which the Lord cannot be unless he maketh claim himself for no man shall be punished for anothers fault Dyer f. 66. pl. 14. It is the Law of God that every one shall bear his own burthen and receive judgment according to his proper fact and merit whether it be good or evill As whereas the Plaintiff chargeth the Defendants with an escape made and suffered by them they ought not to accuse