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
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
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
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
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
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
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
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
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
remainder is appointed in fee to the right heires of I. S. who dieth having a daughter which entreth after the death of tenant for life there the son after borne shall not recover the lands before vested in the daughter as purchased for thereit is a fee simple to which the son after born hath no right for the lands were in none of his Ancestors before But where the estate is an estate taile the son ought to have it per formam doni As if a feme which suffereth a recovery by covin contrary to the Statute of 11. H. 7. is defeated by entry of the daughter tenant in taile the son borne may enter and oust the daughter for that the title in taile is in him because the statute saith he shall enjoy it according to the title which is in taile and therein the common proverb is verified One shall beat the bush and the other have the bird As if a man hath land by descent of the part of the mother and maketh a feoffment on condition and dieth without issue and the heire of the part of the father entreth the heire of the part of the mother may oust him Ployd 56. b. and 57. a. In Wimbish case quod vide Infinitum injure reprebatur Coke l. 6. f. 45. What is infinite is reproved and rejected in law As if a man have a debt by simple contract and taketh an obligation for the same debt or any part of it the contract is determined 3. H. 4. 17. 11. H. 4. 9. and 9. E. 4. 50. 51. So if a man have a debt upon an obligation and by course of law hath a judgement upon it the contract by specialty is changed into a thing of record for if he that recovereth should have a new Action or a new judgement he may have infinite Actions and infinite judgements to the perpetuall charge and vexation of the defendant and he shall not have a new Action or a new judgement for what is infinite is rejected in law So upon every judgement the defendant shall be amerced and if he bee a Duke Marquess Earle Viscount or Baron he shall be amerced 100 l. and so the defendant should be infinitely amerced upon an obligation which shall be mischievous Ibid. And lib. 7. f. 45. b. It was resolved in the Court of Wards by the greater part that a Bill of reviver upon a bill of reviver shall not be admitted by reason of the infiniteness which is rejected in law And lib. 8. f. 16. b. When the first office is found against the King and the melius inquirendum also the King is bound nor to have any melius inquirendum for the same matter because there should be no end of it and that such writs might issue infinitely and infinity is condemned in law Nihil tam conveniens naturali aequitati quam voluntatem domini volentis suam rem in aliam transferre ratam haberi Bracton f. 18. God hath given to man all the land terram dedit filiis bominum So men by Gods endowment are made Lords of the land and what property a man hath in lands by law by the law of God also he hath dominion of it and therefore every man who is the lawfull owner of land may grant to what person in what manner and for what time it pleaseth him for if the land be subject to man then is it subject to his will for the will cometh from the mind which is the principall part of man because it directeth the body and all things he hath and if his land be subject to his will this his will is a sufficient consideration by which his land may pass as his will is and there is no greater consideration then the will Ployd f. 308. b. And nothing is more agreeable to naturall equity then to ratify the will of the Lord willing to transferr his substance and estate over to another And therefore at the common law the intention and will of the parties was the direction of uses for they were onely determinable and to be adjudged by the Chancellor which is the Court of conscience and equity and there is nothing more agreeable to equity then that the will of the Lord or owner and the meaning of the parties should direct the uses 31. H. 16. Tit. subpaena Fitz. 23. A man being ceste que use and having one sole daughter declared his intent and meaning to the Feoffees that after his decease his daughter should have his land and for it question was made in the Chancery whether the limitation of that use made to the daughter might be revoked and in reasoning of that case Fortescue held opinion that if ceste que use had issue a daughter and being sick declared his intention to his feoffee that his daughter shall have his land after his decease and after hee recovered his health he had issue a sonne now saith hee it is good conscience the sonne should have the Subpaena because hee is heire for conscientia dicitur a conset scio quasi simul scire cum Deo that is to know the will of God so neere as reason will and the intention of the parties is to direct the uses according to a conscionable and benigne construction Coke l. 1. f. 100. a. b. vide ibidem plura As a gift in taile may bee made upon condition that tenant in taile may alien for the profits of his issue and good and hee may alien notwithstanding the Statute of W. 2. because in that case voluntas donatoris observatur The will of the Donor is observed Coke com 224. b. If Lands be given to B. and his heires Habendum to him and the heires of his body or if given to him and the heires of his body Habendum to him and his heires he hath estate taile and a fee expectant but if Lands bee given to B. and his heires if B. have heires of his body and if he die without heires of his body that it shall revert to the Donor it is an estate taile and the reversion in the Donor for voluntas donatoris in charta doni sui manifeste expressa est observanda The will of the Donor manifestly expressed in the Charter of the gift is to be observed Coke com f. 21. a. If a common person doth without consideration give to I. S. his goods indefinitely all his goods doe pass 21. E. 4. 25. Alba of Waltams case by Brown and Genny If the King doe grant to one lands ex mero motu and though his Highnesse doth rehearse some consideration in the patent of his grant which is not true as if the consideration bee that whereas the Grantee hath done his Majesty good service on the Sea or beyond the Sea or in his Wars though the consideration bee meerely supposed and therefore no good consideration in Law yet the words ex mero motu doe make the Grant good 26 H. 8. 1. by Fitz. And if a common person doe by deed
Coke com f. 25. a. A devise cannot direct an inheritance to descend contrary to the rules of the Common Law as if a man devise Lands to one and the heires males of his body and hath issue a Daughter who hath issue a Son the Son shall not inherit as heire male because he must convey the descent from the heires males for though a devise may create an inheritance by other words then a gift can yet can it not direct an inheritance to descend contrary to the rule of Law and no intent of the devisor appeareth that the Son of the Daughter should against the rule of the Law inherit vide Ployd f. 414. b. So if a gift be made to a man and the heirs females of his hody and hath issue a Son who hath issue a Daughter this Daughter shall never inherit vide ibidem plura Prâ—ximus sum egomet mihi Ployd f. 545 a. It is the naturall order to karve himselfe before he karve another and charity beginneth at home And therefore in legacies it is reason that the Executors shall have preferment of satisfaction before others and the Law maketh allowance to them before any others because as Lit. faith they represent the person of the Testator and Coke com f. 209. b. The Executors doe more represent the person of the Testator then the heire doth to the Ancestor for though the Executor be not named in Mortgage yet the Law appointeth him to receive the mony but so doth not the Law appoint the heire to receive the mony unlesse he be named and therefore if the Obligee maketh the Obligor his Executor it is a release in Law and if the Obligor make the Obligee his Executor the Action is gone for they are as it were the same person in law whence the law maketh allowance to them before any other For if a man devise to A. 20 l. and to B. 20 l. and to C. 20 l. and maketh his executor and dieth having goods only to the value of 20 l. now it is in the election of the executor to which of those three he will pay the 20 l. and if he pay it to one the other cannot contradict it neither hath he any remedy for his legacy so by the same reason if one of the three be made executor to the testator the law saith he may and will retaine the 20 l. in satisfaction of his legacy and the law alloweth of it for it is reason that he be next to himselfe and have regard to himselfe before another And this is the reason of the case in 12. H. 4. f. 21. where in debt upon an obligation against the heir he pleaded that the Plaintiff was executor to Lancestor which deed he put before them and administred certaine goods and Chattels to the value of the debt and more and retained the same summe with him in the name of payment and demanded judgement if Action And Hull said that if he did not retaine the same to himselfe and might have retained it and did not he shall be barred for a man is bound to be next to himself and this was the opinion of some of them for which he pleaded there that he adminstred no goods after the death of the Testator vide ibidem plura in Paramers case And for the same reason doth the law in all reciprocall acts respect mutuall recompence and consideration for if there be no consideration why should they be made Doct. and St. and it is supposed there was error in such Acts because there is no consideration of profit for every one is next unto himselfe ad suum lucrum satis sapit is sufficiently wise to project his owne emolument And therefore have considerations a great effect in lawes and customes for consideration is the beginning of all customes the grounds of all uses the reason of all rights and the causes of all duties For without consideration nothing is wrought by any conveyance no interest transferred no right removed nor duty accrued and no custome hath continuance As if the Lord of the Manner prescribe that every one who passeth the highway which lyeth in his Mannor shall pay 12. d. to him for his passage this is void and not upon good consideration but if he prescribe to have a penny of every one that passeth such a Bridge which the Lord of the Mannor doth use to repaire this is a good prescription Calthrope Copy-holds f. 35. and 36. And therefore is consideration described by Dier f 336. to be the cause or occasion of a meritorious recompence either in deed or law for all contracts and bargaines have quid pro quo contractus est quasi actus contra actum and must have quid pro quo Coke com f. 47. b. And so it is in exchanges annuities pro consilio impendendo or service rents services and tenures for dâ—meanes of Lands as Frank-almoigne Homage-auncestrell for warranty and acquittall commons for cause of vicinage or service Devise of a woman causa matrimonij praelocuti so the manner of a gift to doe such a thing or to make such a thing Considerations are either executory or executed and in considerations executory the recompence failing the Feoffment or grant ceaseth as a feoffment to instruct the feoffor in one mistery or Art if the Feoffor dieth before instruction the heir shall re-enter 21. E. 3. Grant of an Office and for the executing it a fee if the office be determined the fee is determined M. 5. E. 4. 7. and 20. E. 4. If a woman give land causa matrimonii prelocuti and he will not marry her she shall have a writ to recover the land Ployd f. 58. a. If a man make a lease for yeares rendring rent the lessee needeth not pay any rent if the Lessor had nothing in the land at the time of the lease because he had not quid pro quo Coke com f. 47. b. If I grant an annuity pro consilio impendendo if he wil not give me councell I must stay my annuity Ployd 144. b. An usuall and accustomed attendance of a corodian upon the Soveraigne of a monastery upon festivall daies determineth the corodie it being a reward for attendance Exchanges not executed by each party at the first is defeasible 9. H. 4. A portion of rithes granted by indenture for ever without cavillation or contradiction and an annuity granted for the aforesaid portion So to have a way for my life and I grant an annuity of 20 s. without limitation the annuity shall endure but during my life Dier 336. 337. Where no consideration is expressed there the consideration may be averred Dier 146. Vellies case A rehersall of a consideration past whether it be true or false shall not dissolve the gift as because he served me in the Wars beyond the Seas although it be false it is not materiall Bracton in modis donationum and so in the case of the King Dier f. 337. If A. enfeoff B.
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
remotissime vana which by the intendement of the Law never cometh into act Coke l. 2. f. 5. 2. n. b. in Sir Hugh Chomleys case vide ibidem plura And hereby the way may pertinently be observed that a possibility cannot be released as if before judgement the Plaintiff in an action of debt releaseth to the baile in the Kings Bench all demands and after judgement is given this shall not bar thee to have execution against the baile because at the time of the release he had but a meere possibility and neither jus in re or jus ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute release to the Conusor all his right in the Land yet afterward he may sue execution for he hath no right to the Land till execution but onely aâ— possibility and so have I known it adjudged Coke com f. 265. b. So if A. grant to B. that if he doe such an act he shall have an annuity of twenty pounds during his life before the Act done he cannot release the annuity Coke l. 1. in Albanys case Lex semper dabit remedium the law so favoreth right that it will suffer things against the principles of Law rather then a man to be without his remedy As a man who is outlawed may bring an action to reverse it an outlawry there is no Plea 4. H. 7. 40. The Tenant shall have a replevin against the Lord that did wrongfully distraine though the beasts be come back to himself because he can have no action of trespasse against him for that prisall and shall recover damages for the tortious prisall F. n. b. f. 69. H. A man after judgement is passed against him shall plead against the King a Charter of pardon or any such thing done in the meane betwixt the verdict and the judgement because against the King he can have no Audita querela 11. H. 7.10 otherwise it is against a common person And therefore is it a principle in Law cuicumque aliquis quid concedit concedere videtur id sine quo res ipsa esse non potest Coke l. 11. f. 52. a. Which Ploydon thus expresseth that it is held as a maxime in 2. R. 2. in trespasse that if any man hath interest to any thing by the grant and assent of another and the party who hath such interest cannot have the principall thing without doing the other thing that he may doe the said other thing and justify it because it is a meanes to come to his profit for there it is holden That if one grant to me all his Trees growing in his Woods I may cut them down and carry them through all his Land and though his Grasse be spoiled with the carriage he shall not have a Writ of trespasse of it for Trees are such things that if they be not carryed by Carts he cannot have them nor make his profit of them But if one sell all his Fish in his Pond and the Vendee dig a trench so as the water may run out that by such meanes he may take the Fish an action of trespasse will lye against the Vendee because he might take the Fish by Nets or other Engines but if there had been no other meanes to take them it had been otherwise and to come to the banks to fish he may well justify it for without it he cannot take them by any meanes so as a man shall alwayes justify the necessary circumstance where he hath title to the principall thing Ployd f. 15. 16. a. vide ibidem plura in Renigers case So when a Lessor in the Lease except the Trees and after hath an intention to sell them the Law giveth to him and to those who will buy them power as incident to the exception to enter and shew the Trees to those who will have them for without entry they cannot view and without view they cannot buy Coke l. 11. f 52. in Lisords case So 19. H. 6.29 A man seised of a mese in a Burrough c. devisable deviseth it to his wife in taile and that if his wife dye without issue that his Executor may sell it and it dispose for his soule in this case the Executor may by the Law enter into the house to see whether it be well repaired or no to the intent to know at what valew he may sell the reversion And the Law giveth power to him who will repaire a Bridge to enter in the Land and to him who hath a Conduit within the Land of another to enter into the Land for it to mend as cause shall require as it is resolved in 9. E. 4.35 Coke ibidem vide plura And Coke l. 5. f. 12. a. If a man hath Mines hidden within his Land and leaseth his Lands and all his Mines in it there the Lessor may dig for them for quando aliquis quid concedit c. and this accordeth with 9. E. 4.8 that if a man lease his Land to another in which there is a Mine to wit an hidden Mine he cannot dig for it and if he doe it is wast but if he lease his Lands and all the Mines in it it is otherwise for the reason aforesaid vide ibidem plura in Saunders case If tenant at will soweth Corne on the ground and the Lessor out him he shall have free entry egresse and regresse to carry it away for when the Law giveth any thing to any one it giveth implicitly whatsoever is necessary for the taking and enjoying of the same and the Law driveth him not to an action for the Corne but giveth him a speedy remedy to enter into the Land and to take and carry it away and compelleth not him to carry it at one time or to carry it before it be ready to be carryed and if the Lessee be disturbed of this way the Law doth give unto him he shal have his action upon the case and recover his damages for whensoever the Law giveth any thing it giveth a remedy for the same Coke com f. 56. a. If there be Lord Mesne and Tenant and the Lord purchaseth the tenancy in fee the mesnalty is extinct but whereas the tenant held of the meane by five shillings and the mesne of the Lord by twelve pence so as he hath more in advantage by foure shillings he shall have the foure shillings as a rent-seck yearly of the Lord and yet he shall distraine for it for seeing the mesnalty is extinct the Law reserveth the distresse to the rent for quando lex aliquid concedit c. And therefore if a man maketh a Lease for life reserving a rent and bindeth himselfe in a Statute and hath the rent extended and delivered unto him he shall distraine for the rent because it cometh to him by course of Law Multa constituuntur in lege ne curia Domini Regis deficeret in Justitia
tenant of the Land to be summoned whereas he was not summoned and the tenant looseth by default upon the grand Cape returned the tenant may have a writ of deceit against the recoverer and against the Sheriff for his false returne F. N. B. 97. C. and may defeate the judgement and no damages shall be recovered against the Sheriff in such case onely he shall be fined 5. E. 4 4â— And if he dye his heire may have an action of deceite and restitution of the Land 8. H. 6.5 If a man bargaine with another and assume upon consideration to enfeoff him of ceraine Land and he enfeoffeth another he to whom the assumpsit was made may have an action of deceite or an action upon the case at his pleasure 3. H. 7.14 If one selleth to another a horse which he knoweth to have a secret disease in his body or selleth Corne which is full of gravell an action of deceite lyeth 20. H. 6.36 without warranty but F.N.B. 94. C. is of the contrary opinion If the Sheriff arrest the body by a Capias ad respondendum and returneth not the Writ the party shall have an action of false imprisonment Kell way f. 3. b. The Law ordaineth that he who will be sure of his goods shall buy them in Market overt and that sale shall bind all strangers as well as vendors and yet it is agreed in 33. H. 6. That sale in open Market shall not bind him who hath right to the goods if the sale be by fraud or the Vendee hath notice that the property of the goods appertaineth to another So the Law hath ordained the Court of the common Pleas as Market-overt for the assurances of Lands by fine so as he that will be assured of Land not onely against the Vendor but against all strangers it is good for him to passe it in this Market-overt by fine yet Covin and deceite shall avoid it overt by fine yet Covin and deceite shall avoid it 〈…〉 a Feoffment by Covin which amounteth to a wrong and disseisin Fine levyed by him who is particeps criminis and who had not nor pretended to have any right to the land shall not be a bar to the Lessor Coke l. 3. f. 78. Fermors Case A resignation made by an Abbot by covin shall not abate the Writ 4 E. 2. 22. A covenous Conveyance that assets shall not descend is not of force 34 E. 3. 19. 19 E. 2. 3. And 17 E. 3.59 That an estate made to the King and Letters patents granted over and all it by covin between him that granted to the King and the Patentee to make an evasion out of the Statute of Mortmaine shall not bind but shall be repealed A presentation obtained by fraud and deceit is voyd Dyer 339. b. Letters of administration obtained by fraud and covin are voyd and shall not repeale the former administration Dyer 339. a. vide Dyer 295. many Cases there put concerning covin If I sell to one cloath and warrant it to be of such a length and it is not of such a length the buyer may have an action of the case against me by vertue of the warranty although the warranty be by word and not written but if the warranty be made at some other time after the bargaine he may not have a Writ of deceit unlesse it be made by writing F. N. B. 98. k. If a man sell to one Seeds and warranteth them to be of another Countrey if they be not a Writ of deceit lyeth but if he warrant that the Horse which he selleth should go fifty miles in a day or that the Seeds shall grow it is otherwise And a Writ of deceit lyeth for selling of corrupt Victuall without warranty but not for selling of rotten Sheep though it be with warranty but to warrant a thing which is evident to sense as to be black which is blew is voyd unlesse the buyer be blind or the thing which is bought be absent 11 E. 4 7. 3 H. 4. 1. If I sell one certaine Pipes of Wine and warrant them to be good and they be corrupt the Vendee may have an action of the case against the Vendor F.N.B. 99. b. Yet according to the opinion of some an action will lye without warranty 7 H. 4. 14. But Master Fitzherbert saith that there ought to be a warranty and his taste ought to be his judge in such case and where it is with warranty the Writ must say that the Defendant at the time of the warranty made knew that the Wine which he sold was corrupt A Writ of deceit was brought for selling a certain quantity of Wooll and warranting it to be fifty sacks whereas it wanted of that measure the Defendant pleaded in bar that it was weighed before the sale and the servants of the Plaintiffe being his Factors did accept of it and carryed it beyond the Sea whereupon the Plaintiff demurred 13 H. 4. 1. Semper qui dolo fecit quominus haberet pro eo habendus est ac si habet Reg. J. C. Alwayes whosoever shall give or grant any thing by fraud whereby he may seem not to have it he is to be esteemed as if he hath it And therefore if a man by fraud make a Deed of gift of all his goods to one of his Creditors to deceive the rest the gift by the Statute of 13 Eliz. is voyd Twins case l. 3. f. 81 quod vide where you shall finde the signes and marks of fraud accurately and fully discovered And Coke l. 5. f. 60. a. b. debt against the heire upon an obligation the Defendant pleaded Riens per descent the Plaintiff replyed that he had Assets in D. c. and the Plaintiff giveth in evidence that the father dyed seised of lands in fee the Defendant sayd that he aliened before the Writ the Plaintif averred by covin and proved that it was done by fraud to defraud the Plaintiff and therefore it was resolved to be voyd by the Statute of 13 Eliz. c. 5. and that the fraud might be wel given in evidence because the Statute saith that the estate as to the Creditors shall be voyd and therefore shall be taken by favourable interpretation for to suppresse fraud and that it shall be mischeivous to the Creditors and increase maintenance and covin if the Plaintif should be driven to plead that the Feoffment was by fraud because it is commâ—nly hatched in arbore cava and so artificially covered and concealed that the party grieved hath no meanes to find and know it and therefore jâ—dgment was given for the Plaintiff viâ—â—e ibidem And Burrels case l. 6. f. 730. a. and l. 8. f 133. in Turners case So Hobart f. 72. Humbertons Case Humberton recovered a debt against T H. and dyed and upon a Scire facias against the Ter tenants the Sheriff returned J. H. Tenant of an house that was his at the time of the judgement and J. H. came in and pleaded that T. H.
consisteth in idlenesse for idlenesse is the mother of all vices and as Coke there saith principally in young men who ought in their youth to learne profitable sciences and trades which are profitable to the weale publick of which they may reape the fruites in their old age for jeunesse oisense vilesse disettense if in our youth we be idle in our old age we shall be indigent and for that reason the common Law detesteth all Monopolies which prohibit any one to work in any Lawfull trade and that appeareth in 2. H. 5. b. A Dyer was bound that he shall not use his Diers craft for two yeares and there Hull said that the obligation was against the common Law and that by God if the Plaintiff were here he should goe to prison untill he had made fine to the King and so for the same cause if an husbandman be bound that he shall not till and sow the ground the obligation is against the common Law And therefore the act of 5. Eliz. c. 4. that prohibited any person to use or exercise any craft mistery or occupation unlesse he had been an Apprentice for seven yeares doth not make provision onely to the intent that the artificers may be skilfull but that young men shall not be idle in their youth but trained and brought up in lawfull sciences and trades and so by the same reason the common Law doth not prohibit any person to use many Arts and Misteries at his pleasure for nemo prohibitur plures negotiationes sive Artes exercere untill it was prohibited by the Act of Parliament 37. E. 3. 6. That all Artificers c. are bound every one to one mistery and that none use other mistery but that he hath chosen but because that restraint of free trade was prejudiciall to the weale publick at the next Parliament it was enacted that all people should be so free as they were before that Ordinance by which it appeareth that without Act of Parliament no man can be in any manner restrained to worke in any lawfull trade Non negligentibus sed impotentibus succurrendum Reg. I. C. Vigilantibus non dormientibus jura subveniant Ployd f. 357. b. The Law helpeth and releiveth those are impotent not those are negligent As if you disseise me of my Land and then A. bringeth a Writ of right against you and you joyn the mise upon the meer right and you make default after the mise joyned he shall recover to him and his Heires for ever quit of you and your Heires for ever and if I doe not lay my claime within a yeare a day I am barred for ever for the Law succoureth those that are watchfull and not sleepy so as non-claime by a yeare and a day upon a recovery by default where finall judgement is given was a good Bar by the common Law 5. E. 3.222 by Hor. A descent cast during the Coverture where the wife is disseised barreth her not of her entry after her husbands death but if a feme-sole be disseised and then taketh an husband there a descent during the coverture taketh away her entry for it was her folly to take such an husband that entred not in time Littleton 95. Negligentia semper habet comitem infortunium Coke l. 8. f. 133. a. Sa. Turnors case An Executor of an Administrator ought to execute his office and administereth the goods of the dead lawfully truly and diligently Lawfully in the payment of all dueties debts and legacies in such precedency and order as they ought to be paid by the Law truly to convert nothing to his own use and ought not by any practise or devise to bar or hinder any creditor of his debt but ought truly to execute his office according to the trust reposed in him And diligently as in the case at bar for when the Administrators which had judgement for one hundred pounds for sixty pounds and the Plaintiff offered a release or to acknowledge satisfaction and he deferreth it to the intent that the Judgement shall stand in force by which the Plaintiff shall be defrauded of his due debt and the Administrators to convert the goods of the debt to their private use let the agreement be precedent before the recovery or subsequent since the recovery it is all one as to the creditor who is a third person for he is defrauded as well by the one as the other and the creditor who is a stranger shall loose his debt which is by the Law due to him and if any prejudice accreweth to the Administrators in this case it is in his own default for the Plaintiff would have released to them or acknowledged satisfaction but they defer it to the intent to bar the Plaintiff of his just and true debt and negligence hath allwayes misfortune or ill luck for her companion Ibidem Coke l. 2. f. 26. b. If a creditor upon a commission upon a Statute of Bankrupt either by obstinacy doe refuse or by carelessnesse neglect to come before the Commissioners within the time limited and to crave the benefit of the Act he looseth the benefit thereof for the Law releiveth those which are vigilant and not dormant for otherwise a debt may be concealed or a creditor may absent himselfe and void the proceedings of the Commissioners and every creditor ought to take notice of the commission it being a matter of record Coke l. 4. f. 10. b. in Bevills case it was said that the Act of 32. H. 8. c. 2. by expresse words extendeth onely to actuall possession and seisin and not to releive those which for so long time had neglected to have actuall seisin of their services and namely of suite which ought to be made twice every yeare and it was said that it was crassa supina negligentia which that Law did not intend to releive for as it is commonly said vigilantibus c. Ibidem Coke l. 4. f. 82. b. in Sir Andrew Corbets case who deviseth Lands to R. C. and others to have and to hold to them and the survivor of them untill such time that the summ of eight hundred pounds c. was received out of the issues rents c. for the preferment of his Daughters it was resolved though the Devisee had notice of the devise yet if a stranger had occupied the Land the Devisee ought to take notice at his perill for vigilantibus c. and none by the Law in such case is bound to give him notice as in the case of arbitrement 1. H. 7.5.8 E. 4.1 ibidem And this is the reason of a lapse incurring for want of presentment or of a warranty barring for lack of entry or of descents barring for want of claime and a title to tenant in courtesy is lost for lack of entry and that Statutes of limitation do bar actions One seised of Lands devisable deviseth that his Executors shall sell his Land and distribute the profits for the use of the poore and dyeth If a
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
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
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