Court 34. H. 6. 43. And a maihme may be tryed by the inspection of the Court 28. Ass 38. If question be made whether they be summoners and viewers which appeare it shall be tryed by the examination of the Justices 33. H. 6. 10. So whether an Earle be an Earle or a Baron a Baron or no shall not be tryed by the Country nor by the Justices but by the writ of the King Coke l. 5. in the Countesse of Rutlands case And in Plea of an alien borne the league between the King and the Soveraign of the alien borne shall be tryed by the record of Chancery for every league is of record and generally all matters of record shall be tryed by the record it selfe and not by the Country or otherwise Coke l. 9. f. 31. vide de hoc plura ibidem And when a man is found an idiot from his nativity by office he who is so found may come into the Chancery before the Chancellor and pray that before him or such Justices or sages of the Law he may be examined whether he be an idiot or no or by his freinds may sue a Writ out of the Chancery retornable in the Chancery to bring him into the Chancery there before us or our counsell to be examined and if he be found upon that examination not to be an idiot the office so found c. is utterly void without any traverse or monstrans de droit or otherwise F. n. b. 233.10 E. 3. Title Livery 30. An Apostate shall be certified by the Abbot or other religious governor to whom he oweth obedience F. n. b. 232. In an appeale or upon an approvement the Defendant may pleade not guilty and try it with the Plaintiff by combat or battaile in person before the Justices 9. Ass Pl. 1. But the Defendant is restrained from choice of battle if there be any notorious presumption of the fact in him Finch Nomoâ— f. 422. vide ibidem plura And in a Writ of right the tenant may joyne issue upon the meere right and try it by combat or battaile by his champion with a free-man the champion of the demandant and not in person before the Justices 9. E. 4.35 If it be in question which of the Sheriffs made such a retorne it shall be tryed by the Sheriff 9. H. 4.1 If question be made if such a one be Sheriff it shall be tryed by the examination of the Sheriff himselfe 10. H. 4.7 Yet is he made by Letters Patents on record and therefore it also may be tryed by record 32. H. 6.27 A retorne made by the under Sheriff if it be denied shall be tryed by the under Sheriff and the Sheriff cannot disavow it if he confesse him to be his under Sheriff 10. H. 4.7 If an approver say that he commenced his appeale before the Coroner by duress that shall be tryed by the Coroner and if the Coroner deny it he shall be hanged 12. Ass 29. Tryall if the Statute shewed forth be a true Statute or no shall be tryed by the examination of the Mayor and Clerk of the Statutes who took the Statutes F. N. B. 104. H. In Assize the Tenant saith that the Lands are taken into the hands of the King it shall be tryed by the examination of the Escheator 9. H. 4.1 To a petit Cape the Tenant saith that he was in Prison three dayes before and three dayes after it shall be tryed by the examination of the Attorny 13. R. 2.22 Not attached within fifteen dayes in an assize shall be tryed by the examination of the Bayly So that the tenant was not summoned according to the Law of the Land shall be tryed by Law-gager and the Law-gager doth countervaile a Jury for the tenant shall make his Law duodecima manu to wit by eleven besides himselfe unlesse it be against a Corporation for then it shall for necessity be tryed by the Country because it cannot wage Law In a Writ of deceit upon a Recovery by default the tryall shall be if the judgement was given upon the petit capit by the Summoners if upon a grand Cape by the Summoners Pernors and Viewers 48. E. 3.11 So if a Recovery by default in a reall action be pleaded and the other saith not comprised it shall be tryed by the Summoners and Viewers 10. H. 4.7 and yet their is no remedy if they speake falsly and therefore ubi majus periculum ibi cautius est agendum where there is a greater danger there we ought to be more wary The cause of challenge shall be tryed by two tryers to be appointed by the Justices 9. E. 4.5 But the tryall of any one of the grand Jury shall be taken by foure Knights Tryall may be in debt upon a simple contract detinue c. either by Law gager by the Defendant himself or by the Country at the election of the Defendant 30. Ass P. 19. Coke l 9. f. 32.33 And Coke com f. 74. If a Subject of the King be killed by another of his Subjects in a forraine Country the wife or heire of the dead may have an appeale for that murder or homicide before the Constable and the Marshall whose sentence is upon testimony of witnesses or combat and their proceedings according to the civill Law and not by the oath of twelve men and so was it resolved in the twenty fifth of Elizabeth in the case of Sir Francis Drake who struck off the head of Dowty in partibut transmariuis that his Brother and Heire might have an appeale but the Queen would not constitute a Constable of England and therefore the appeale was dormant And Coke com f. 261. b. By the Statute of 25. E 3. De proditionibus it is declared that it is Treason by the common Law to adhere to the Enemies of the King within the Realme and without if he thereof be proveablement attaint of overt-fact and that he shall forfeit all his Lands c. But least the common Law declared by Parliament should be illusory and that the Delinquent might not be attainted thereof for necessities sake the adherency without the Realme must be alledged in some place within England and if upon evidence they shall finde any adherency out of the Realme they shall finde the Delinquent guilty but most commonly they endited him if he had Lands in some County where the Lands did lye that were to be forfeited and so it is declared by the Statute of 35. H. 8. And that it shall be tryed by twelve men of the County where the Kings Bench shall sit and determined before the Justices of that Bench or else before such Commissioners and in such Shire of the Realme as shall be assigned by his Majesties commission and this Statute for this point remaineth in force at this day and so was it resolved by all the Judges 33. Eliz. in Orurks case and 34 Eliz. in Sir John Perots case for Treasons done in Ireland for that it is out of the Realme
deteriorem nequaquam Cok. Com. 141. a. The Church exerciseth the Office of a minor can make its condition better but not worse for it is the cheifest reason which makes for Religion And therefore in all cases a Parson or Vicar of the Church for the benefit of the Church hath a qualified fee but in many cases to doe any thing to the prejudice of the Church he hath in effect but an estate for life As a Parson Vicar c. may have an action of Waste and in the Writ it shall be said ad exheredationem Ecclesiae So the Parson that maketh a Lease for Life shall have a consimili casu during the life of the Leasee and a Writ of Entry ad communem legem after or a Writ ad terminum qui preterijt or a quod permittat in the debet which no man can maintaine but Tenant in Fee-simple or Fee-tayle vide But a Parson cannot make a discontinuance for that should be to the prejudice of his Successor to take away his Entry and drive him to a reall action but if he dye the Successor may enter notwithstanding the discontinuance And if a Parson make a Lease for years reserving rent and dyeth the Lease is determined neither will the acceptance of the Successor make it good vide 5. Prelatus Ecclesiae suae conditionem meliorem facore potest sine consensu deteriorem vero nequaquam sine consensu Coke Com. fol. 103. a. As neither Bishop nor Parson cannot disclaim or devest any fee is invested in his house or Church But an Abbot or a Prior with his Covent or a Bishop with his Chapter or a Parson with his Patron and Ordinary may passe away any Inheritance for the wisdome of the Law would not trust one with the Inheritance of the Church which alwayes maketh for religion and the good of the Church 6. Dies dominicus non est dies juridicus Ployd 265. The Sabbath day is no day for Law As upon a Fine levyed by Proclamations according to the Statute of 4. H. 7. C. 24. If any of the Proclamations be made on the Sabbath day all the Proclamations be erronious for the Justices must not sit upon that day but it is a day exempted from such Businesses by the Common-Law for the Solempnity of it to the intent that the people may apply themselves that day to the service of God No Plea shall be holden Quindena Pasche because it is alwayes the Sabbath but shall be Crastino quindenae Pasch Fit Nat. fo 17. f. Upon a Scire facias out of the Common Bench an Error was assigned because the Teste of the Scire facias was upon a Sunday And it was adjudged Error because it was not Dies Juâ—idicus Dyer 168. No sale upon a Sunday shall be said to be sale in a Market overt to alter the property 12 E. 4 8. Although Sunday is not Dies Ju idicus and that no judiciall Act ought to be acted on that day yet ministeriall Acts as to arrest or serve Process are allowed for otherwise peradventure they should never be executed and God forbid that things of necessity should not be done on that day for bonum est bene facere die Sabathi but this distinction and exception is taken away by a late Act made in the long Parliament of England yet did that Parliament in case of necessity once sit upon the Lords day which is the high Court of Justice and from which there is no appeale By the Statute of Magna Charta Cap. 14. no spirituall Parson shall be amerced according to his spirituall benefice but according to his Lay fee Fitz. Nat. br f. 76. b. And that in favour of Religion 7. Omnia quae movent ad mortem sunt deod inda Coke l. 5. fol. 110. b. any unreasonable thing killing a man by misadventure is forfeited to the King and every thing moveing with it is forfeited also to the King As if a man being upon a Cart carrying Faggots and as he is in binding them together falleth downe by the motion of one of his Horses in the Cart and dyeth of that both that and all the Horses in the Cart and the Cart it selfe are forfeited 8. E. 2. 307. A man falleth from a stack of Corne and dyeth it is forfeited 2. E. 3 140. If any Horse strike one and I â—lien my Horse and he dyeth my Horse is forfeited because the forfeiture shall have relation to the stroke given Ployd 260. b. Kâ—llaway 68. b. but it is not forfeited untill the matter be found on record and therfore it cannot be by prescription and the Jurors that find the death must also finde and apprize the goods Coke l. 5. fol. 11. b. And therefore are they called Deodands quasi deodanda that is Elâ—emosynas eroganda to be disposed in Almes and workes of Charity 17. E 4. 2. and for that reason doth the King grant them to his Almoner to the intent they should be disposed of by him accordingly Actus dei nemini facit injuâ—iam Cok. Com fol. 148 So much is the reason of the Law ruled by Religion as it will not permit the Act of God to prejudice any one as if Tenant for another mans life granteth a Rent-charge to one for one and twenty years cesty que vie dyeth the Rent-charge is determined and yet the Grantee during the years may have a Writ of Annuity for the Arrearages incurred after the death of cesty que vie because it determined by the Act of God Cok. lâ—b 8. fol. 72. Hales Case An Office is found that the Heir is in ward who after he was of ful age tendreth his Livery and was admitted to it the Heir within three moneths which is the usuall time to sue out his Livery bargaineth part of his Lands by Deed inrolled and within the three moneths dyeth the bargaine was adjudged good and that the Heire should have no prejudice because the suing of his homage and suing out of his Livery without default in him was become impossible by the Act of God Impotentia excusat lâ—gem and is all one as if the King had taken the Homage of the Heire when the Heire made his tender vide ibidem pâ—uâ—a Coke lib. 8. fo 63 a. If an House fall by tempest or other Act of Gâ—d the Lessee for life or years hath a speciall interest to take Timber for the builâ—ing of the house againe if he will for his habitation but if he pull downe the house he shall not have Timber to builde it because it is his own Act and the Lessor shall have an Action of Waste Coke lib. 1. 98. a. If a Lessee Covenanteth to leave the Wood in as good plight as it was at the time of the Lease and after the Trees are subverted by Tempest he is dischar ed of his Covenant causa qua supra Cok. l. 5. fol. 86. a. Bâ—unfeilds Case If the Defendant in debt dyeth in Execution the Plaintiff shall have a new
exhibenda Coke l. 7. f. 4. Many things are constituted in law least the Court of the Lord the King should faile in doing of Justice by the Statute of W. 2. c. 8. It is provided that so often as from henceforth there shall be found in the Chancery that in one case there is found a Writ and in the like case falling under the same right and wanting the like remedy no Writ is found let the Clarkes of the Chancery agree in making a new Writ c. or at the next Parliament let there be a Writ by the consent of the learned in the law and the estate concludeth with the effect of the common law Quod curia domini Regis non debet deficere conquerentibus in Justitia perquirenda That the Kings Court ought not to be slack or deficient to the Complainant in seeking Justice and therefore if there be Lord and Tenant and the tenancy extend into two Counties in this case if the rents or services be behind the Lord may have severall Writs of customes and services for each County a Writ and shall have them retornable at one day in the common bench and there upon count according to his case by the commmon Law because otherwise the Court of the King should be deficient to the Plaintiffs in seeking of Justice Coke com f. 154. a. and Coke l. 7. f. 4. a. b. vide ibidem plura in Bulvers case If there be Lord Mesne and Tenant and the Mesne doth truly his services paramount and yet the Lord distraineth the Tenant paravaile for them at that time the distresse is tortious and the tenant is not distrained in default of the mesne yet in this case if the tenant paravaile request the mesne to take his Cattle out of the ground and to put in the proper Cattle of the mesne in place of them or if the tenant had replevind his own Cattle and requested the mesne to joyne and to acquit him and he refuse by that matter ex post facto the Law shall adjudge that the tenant paravaile was distrained in default of the mesne and in a Writ of mesne the mesne shall plead not distrained in his default and it shall be found against him or otherwise the tenant paravaile who is in no default shall have wrong and yet shall be without remedy and it is all one to the tenant whether the distresse was wrongfull or right if he have not any distresse 39. E. 3.34 c. By which it appeareth that the Judges in those ages did endeavour to put the rule of W. 2. in execution Curia Domini Regis non debet deficere conquerentibus in Justitia exhibenda Coke l. 9. f. 111. a. b. And Coke l. 9. f. 88. b. The Executors which in truth hath the Goods in anothers right to wit to pay the debts c. of the Testator shall not convert them to their private use without paying the just and true debts of the Testator for that shall be against Justice and right and against the Office of Executors which are but the Ministers and dispensers of the Goods of the dead and notwithstanding the death of the Testator yet the debt remaineth for death is not a discharge of debt and it should be a great defect in Law that no remedy shall be given for it curia domini regis de ficeret c. Coke l. 9. f. 88. b. And therefore an action upon the assumpsit made by the testator shall lye against the Executors because in such case the Testator could not gage his Law for by it Justice and right is advanced in that the creditor shall be paid his just and due debt ibidem So Coke com f. 74. a. There are diverse manners of trialls appointed by the Law besides the common tryall by a Jury of twelve men upon oath least the Court of the King should be defective in doing of Justice as in the time of War out of the Realme the tryall shall be by the certificate of the Marshall of the host in writing under his seale which shall be sent to the Justices so in the time of peace out of the Realme as if it be alledged for avoiding an Outlawry that the Defendant was in prison at Burdeaux in the service of the Mayor of Burdeaux it shal be tryed by certificate of the Mayor of Burdeaux and in the like cases such tryalls shall be by the Marshall of the Army or by a messenger of a thing done beyond the Seas 2. Eliz. 176. In Barrys case And for matters within the Realme the custome of London shall be certified by the Mayor and Aldermen by the mouth of the Recorder likewise by certificate of the Sheriff upon a Writ to him directed in case of priviledge if one be a Citizen or a Forrainer And by tryals of Records by certificate of the Justices in whose custody they are by Law So in causes ecclesiasticall as loyalty of marriage generall Bastardy Excommengement Profession and the reason that tryalls by certificate are peremptory because if the Court should re-examine it they have no other remedy but to write to the same officer made the certificate and it is not to be presumed that they would differ from their former certificate Bac. Max. f. 26. A Lord of Parliament upon an enditement of treason or felony shall be tryed by his peeres without oath upon their honors and allegiances but in an appeale at the suit of the Subject they shall be tryed per probos legales homines juratores 10. E. 4.6.8 Customes and Usages of every Court shall be tryed by the Judges of the same Court if they be pleaded in the same Court 11. E. 4.2.9 In dower an appeale brought of the death of her husband or in Assise brought by the feme which was the wife of B. if the Tenant or Defendant plead that the husband is alive the tryall shall not be by Jury but by Justices upon Processe made before them for the greater expedition 6. E. 3. 29. c. In a Writ of Error to reverse a fine for nonage or in an Audita quâ—rela to reverse a Statute or Recognisance for nonage there the age shall be tryed by inspection of the Judges and not by the Country And so it is if tenant vouch A. as heire within age and tenant for life vouch him in the reversion within age and prayeth that the Plea may demurr c If an infant appeare by an Attorny it is Error and shall be tryed by the Country because the making of the warrant of Attorny is the act of the party and yet the appearance of the Attorny is recorded in Court but if the Plaintiff maketh an Attorny in Court and the Defendant pleadeth that the Plaintiff is dead and one appeareth and saith that he is the Plaintiff which is denied by the other party the Judges shall adjudge whether he that now appeareth be the same person who at another time made the Attorny in
that it may appear to the Court that it is granted pro negotiis regni pro bono publico for the common profit of the Realm and as Britton saith for our service as to be in our force and defence of us and our people Coke comm f. 130. And it is a rule in the Civill Law which for the reasonableness of it all Nations follow Eorum qui in potestate paiâ—â—s â—unt sine voluntate ejus matrimonia jure non contrahu â—ur sed contracta non solvuntur They who under the power of their Father cannot lawfully contract Matrimony without their will and consent but being contracted are not to be dissolved Contemplatio enim utilitatis publitae privatorum commodis pâ—aefertur For the consideration of the publick good is to be preferred before private profit Fulâ— Pand. f. 28. Finis legis pax est Ployd f. 388. The Justice said that peace and concord were the end of all Lawes and for peace the Law was made And Dyer said that for peace Christ descended from Heaven on Earth and the Divine Lawes of the old and new Testament were given for peace Bacon H. 7. f. 233. And Bacon saith When Christ came into the world peace was sung and when he went â—ut of the world peace was bequeathed And Weston cited S. Aug. Concordia stat augetur respublica discordia ruil diminuitur By concord the Common weale standeth and flourisheth and by discord it is diminished runneth to ruine And Cataline said that the Charriot wherein Peace was carried was unanimity the Rector of the Charriot Love the Horses which drew it Concord and Utility and her company and consorts were Justice and Truth and Diligence and her incidents were the attainment and advancement of all Arts and Sciences and therefore peace which bringeth so many commodities ought to be preserved above all other things And Dyer said that it was one of the Atticles to which the King is sworn at his Coronation to his subjects to do that he preserve the peace for nothing of greater benefit he cannot grant to them And therefore those Lawes which bring the more peace are the more to be esteemed as the Law is touching fines which bringeth to the Possessors of Inheritances security and maketh the certainty and therefore Carus said they were the more worthy because certainty engendereth repose and incertainty contention and to avoid incertainty in Inheritances Fines were devised by the Founders of our Lawes at the beginning of Law for no point of our Law is of greater antiquity and for it Glanvill was cited by Cataline who lived in the time of Richard the first that Contingit aliquando loquelas motas in Curia domini regis per amicabiâ—em compositionem finalem concordiam te minari sed ex licentia regis vel ejus justiciariorum It happened sometimes that Libells and Suites moved in the Court of the Lord the King were ended by a loving composition and finall concord but by the licence of the King or of his Justices And Bracton therefore is it called a finall concord because finis finem litibus imponit because a fine putteth an end to all Suits vide ibidem plura And for the same reason are Recoveries advanced by the Law above all other assurances even fines themselves and as Bacon are the greatest security Purchasers have for their monies for a fine will bar the Heir entail but not the Remainder but a common Recovery barreth as well Estates taile as also all Reversions and Remainders expectant an dependant except in the Kings case where the Remainder or Reversion is in the King and then by the Statute of 34 H. 8. it barreth neither the Estate tail nor the Remainder saving where the King is the Giver of the Estate tail and leaveth the Reversion to himself Bac. Vses f. 52. 53. and Dr. Student l. 1. c. 26. And therfore by the Statute of 23 Eliz. c. 4. It s provided that for the avoiding the danger of assurances and for the advancement of common recoveries that every common recovery shall not be avoided for any want of form in words and not in matter of substance So the common Law is the preserver of peace and abhorreth all force as a capitall enemy to it and therefore is more severe against those which commit any force and subjecteth their bodies to imprisonment whereas at the common Law upon a recognizance or judgement for debts and damages a common person onely shall have execution of his Goods and Chattells and of the Corne or other present profit groweth upon the Land but it is a rule at the common Law that in all Actions Quare vi armis a Capias lyeth and where a Capias lyeth in Processe there after Judgement a Capias ad satisfaciendum lyeth which is the highest execution by which he shall loose his liberty untill he hath made satisfaction to the party and fine to the King and the King shall have a Capias pâ—o fine Coke l. 3. f. 12. a. in Herberts case vide ibidem plura And therefore all actions upon the case for corporall injuries as forcible Entries Assaults and Batteries which tend to the breach of the peace may not onely be pursued by action but Enditement and are more severely and largely taken and punished by the common Law As if foure men enter into Land and one of them entreth by force this is force in them all and may be impleaded by action or impeached by enditement 2. E. 3. 12. Communis error facit jus a common error maketh right Dr. Stud. c 26 f. 46. The Law so favoureth the publick quiet that it will permit a common error to passe for right and therefore though it be objected that common recoveries were fâ—rst had upon feyned and unlawfull ground and against the good order of conscience neverthelesse for as much as they have been used a long time so as they have been taken of diverse men that have been right well learned in manner as for Law that the buyers partly are excused so that they be not bound to restitution and therefore Ployd in Manxells case f. 2. whâ—ther a common recovery barreth an estate taile is not to be disputed because a great part of the inheritance of the Realme depend upon it So an acquittance made by a Mayor in his own name where the Towne is incorporate by the name of a Mayor Sheriff and Burgesses shall be allowed for good if there be an hundred precedents and more of like acquittances that is for common quietnesse and accordingly the Civilian Bodin saith l. 2. de repub Diuturnitas temporis efficere potest ut quod pernitioso more exemplo inveteravit potentius ipsa lege dominetur the long continuance of time may effect that what by pernitious example Custome hath grown old may rule more powerfully then the Law it selfe and therefore as learned Patricius saith Concedendum est aliquid consuetudini
It is not just to make any one a Bastard who all his time hath been taken for legitimate 13 L. LEX est summa ratio The Law is the chiefest reason 4â—7 Lex neminem cogit ad impossibilia The Law compelleth none to impossibilities 450 Leges non veâ—bis sed rebus sunt imposiâ—ae Lawes are not imposed on words but on thiâ—gs 425 Lex citius tolerare vult privatum damnum quam publicum malum The Law will sooner suffer a private losse then a publick evill 429 Lex non praecipit inutila The Law prescribeth no unprofitable things 462 Leges posteriores priores contrarias abrogant The latter Lawes abrogate the former which are contrary to them 452 Lex non paetitur fractiones divisiones statuum The Law doth not suffer fractions and divisions of Estates 456 Lex plus respicit acta sine verbis quam verba sine actis The Law respecteth more acts without words then words without acts 464 Lex semper dabit remedium The Law will alwaies give a remedy 257 Lex fingit ubi subsistit aequitas The Law feigneth where equity subsisteth 309 Legis constructioâ— non facit injuriam The construction of the Law doth no injury 316 Lex non requirit verificari quod apparet Curiae The Law doth not require that to be verified which appeareth to the Court 137 Lex respicit naturae ordinem The Law respecteth the order of nature 144 Licet tenenti vetus oâ—us reficere non novum facere it is lawfull for the Tenant to repair an old work but not to make a new one 85 Locus ab authoritate est infi missimus An argument from authority is most weak Locus pro solutione reditus aut pecuniae secundum conditionem demissionis aut obligationis est stricte observandus That place for the payment of money or rent according to the condition of a Lease or Obligation is strictly to be observed 108 Longum tempus longus usus qui excedit memoriam hominum sufficit pro jure Long professions and long occupation which doth exceed the memory of man sufficeth for a right 178 Lubricium linguae non facile in penam est trahendum The nimblenesse and lubricity of the Tongue is not easily to be brought into punishment 278 M. MVlta conceduntur per obliquum quae non conceduntur de directo many things are granted by the bye which are not directly granted 471 Manifesta probatione indigent manifest things neede no proofe 138 Mala Grammatica non vitiat chartam sensus abbreviationis accipiendus est ut coniessio non sit inanis false Latine doth not distroy a Charter or Deed and the sense of abbreviations is so to be taken that the grant be not void 13.14 Mandata licita strictam recipiunt interpretationem sed illicita latam extensam lawfull commandes receive a strict limitation but unlawful large and extended 385 Malesicia non debent manere impunita offences ought not remaine unpunished 387 Malitia mutat legem malice changeth the Law 299 Malum quo communius eo peius an evill the more common it is the worse it is 207 Malitiae vitium connexum est personae committentis malitiam the vice of malice is connexed to the person who committeth the malice 301 Malus usus est abolendus an evill use is to be abolished 352 Magis minus non diversificant speciem more and lesse doe not diversify the species 123 Mandatumita regulatur in superioribus sicut in privatis a voluntate mandantis a commandement is regulated according to the will of the Commander as well in higher as inferior and private things 380 Misera est servitus ubi jus est vagum it is a miserable servitude where the Law is wavering 28 Majorum praecepta justa an injusta non sunt contemnenda the precepts of the ancients whether just or unjust are not to be contemned 129 Monumenta quae nos recorda vocamus sunt veritatis vetustatis vestigia 129 Mos sidelissimae vetustatis retinendus est quae praeter consuetudinem majorum fiunt neque placent neque recta videntur frequentia actus multa operatur the manner of most faithfull antiquity is to be retained and what are made contrary to the custome of our Ancestors do neither please neither doe they seeme right and the frequency of an act worketh much 123 Modus dat legem donationi the manner giveth a Law to the guift 190 Modus conventio vincunt legem the manner and agreement overcome the Law 35 Mutata forma prope interimitur substantia rei the forme being changed the substance of the thing is destroyed 85 Multa transeunt cum universitate quae per se non transeunt many things passe with the universality which of them selevs doe not passe 23 Multa ignoramus quae nobis non laterent si veterum lectio nobis fuerit familiaris we are ignorant of many things which would not be hid from us if the reading of the ancients were to us familiar 129 Multa constituuntur in lege ne curia domini regis deficeret in justitia many things are ordained in the Law least the Court of the Lord the King should faile in Justice 260 Mutata legis ratione mutatur lex the reason of the Law being changed the Law also is changed 400 Mavult princeps domesticos milites quam stipendiarios bellicis exponere casibus a prince desireth rather to imploy in military affaires domestick Souldiers then Aliens and Stipendaries 409 Multum potest in rebus humanis occasio plurimum in bellciis occasion and opportunity prevaile much in humane things but most of all in Marshall affaires 411 Multitudo errantium non parit errori patrocinium the multitude of those which erre do not patronise an error 151 N. NAturalis possessio ad prescriptionem sufficet Naturall possession is sufficient to prescription 179 Naturae vis maxima the force of nature is very great Negativum nihil implicat A Negative implyed nothing 132 Nemo tenetur prodere seipsum No man is bound to betray himself 331 Nemo tenetur turpitudinem suam detegere No man is bound to bewray his own filth and shame 222 Negatio destruit negationem ambo faciunt affirmationem A double negative maketh an affirmative 12 Nescit generosa mens ignorantiam pati A generous mind cannot suffer ignorance 13 Nemini vim facere videtur qui suo non alieno utitur He seemeth to do injury to no man who useth his own and not anothers 25 Nemo redditum invito domino recipere potest No man can receive the rent without the Lords consent 25 Nemo potest plus juris in alium transferre quam ispe habet No man can grant more right then he hath 24 Nemo videtur rem omittere cujus propria non fuit No man doth seem to lose that in which he hath no property 24 Nrcessitas saepenumero vincit communem legem Necessity oftentimes
Melancton in his Logick addeth another ground and principle which exceedeth the Phylosophers apprehension to wit principium patefactionis divinae the principle of divine revelation which our Law also holdeth to be the prime principle and ground of all the rest for as Prisot a principal Justice of the common Pleas saith 24. H. 8. 46. 1. we ought to give credit to all such Laws as are taken out of the holy Scriptures for that it is the common Law upon which all Lawes are founded and from which all other Lawes doe proceed and therefore may be called divine Lawes as they are conjoyned with the morall Law and have divine authority as also humane Lawes as men by their knowledge doe judge all humane affaires It followeth that we now inquire of the manner of considering the grounds and rules of our Lawes which is by the extraction of them out of the roote and fountaine of other Acts and Sciences for as reason is the mother of the rules and grounds of all Acts and Sciences so are they by the same reason united and cemented together as that the grounds and rules of one Science are adjuvant and auxiliary to another which the Author hath fully expresly demonstrated in the preamble and frontispice of the first Book of this treatise to which he referreth the Reader And to which may be annexed the method which also may be called a manner and forme of considering concerning which the Judges and Sages of our Laws doe dissent and vary whether any or what manner of method is to be used in the sustemes and digests of our Lawes for the antique and neoterique reporters and writers of our Lawes respect more the matter then the method And Sir Edward Coke being advised by King James at some opportune time to reduce the common law into a more commodious method Coke l. 4. Ep. ad lectorem did much doubt of the fruites of his labour if he should undertake it and so doth Sir Francis Bacon freely professe that though he could have digested the rules of our Lawes into a certaine method and order yet doth he of purpose avoid so to doe but Sir Henry Finch hath endeavoured In his preface to his rules and maximes of the Law and fairely proceeded in reducing not onely the body of our Lawes into a compendious method but also the grounds and rules of the same into an Academicall order for which rarity he hath merited this Elogy rara avis in lege rubicula Haecque alter cantipotior sententia visa est Order being the ornament of all things and method the best art of memory to which purpose Sir John Doderidge asserteth that if there be any way extant Dod. E. Law 253. to purge the English Lawes from the great confusions of tedious and superfluous reiterations wherewith the reports are infested it may be brought to passe by the way of grounds and rules or by none for by rules and exceptions all Sciences are and have been published put downe and delivered and whereas Galene proposeth three wayes reasons and methods of teaching and learning the one way by composing and proceeding from the parts to the whole and the other by resolving the whole into parts and the third by defining which by explication of the nature of the whole examineth every particular appertaining to the whole This third and latter may aptly be applyed to the grounds and rules of Sciences as in Physick to the Aphorismes of Hippocrates and more especially to the grounds and rules of the Law which by the newer Civilians is taken for a definition who accordingly do define a rule to be a short definition or a sentence whenas indeed many like cases are concluded in a short delivery not by the expression of the particular cases but by the assignation of the same reason and is nothing else but a compendious oration Br. in regulas juris f. f. 15. 346. wherein many things are breifly and absolutely delivered and declared and so doe the Greeke interpreters call a definition 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which also may be orderly disposed into a Methodicall and an Alphabeticall Table fit and convenient both for the speedy finding of that we would seek and wish for which the Author in the Table of this treatise hath accurately observed And besides hath been diligent to reduce them into a more artificiall order by drawing the grounds and rules of our free and Municipall Laws from the Springs and Heads of the liberall Arts and Sciences and by that meanes hath brought them into a more convenient forme and method which he ingenuously acknowledgeth to have borrowed of Sir Henry Finch and Mr. Noy quia ingenuum duxi profiteri per quos profecissem and to which according to his slender skill he hath added a copious amplification seriously upon mature deliberation conceiving that all the Grounds and Principles of our Lawes may be placed disposed and contained under some of those Heads and consequently every particular case under the generall and severall grounds in every one of them for as Sir Edward Coke principium est quasi primum caput Coke com f. 345. a. a principle is the prime Head from the which many cases have their beginning and originall and therefore hath the Author disposed as many particular and severall cases under every generall and severall Heads as he could conveniently collect and accumulate having learned of the said Author that there is no particular case in the Law so sterill but that the Student at one time or another may make use of it for the defect of which Sir Francis Bacon taxeth the Civilians in his preface to his Maximes which though the Author hath not compleated yet hath he endeavoured so to doe and made way for others to effect it Et sit nobis voluisse fat But now Gentlemen the Author turneth his stile towards you who are the coronides of his labors and lucubrations and to whom they are devoted and directed for yee are legum nostrarum alumni fed and nourished with the teates and traâ—â—ates of the Law and therefore 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as proper and idoneous auditors of the Grounds and Principles thereof and did forbeare to commende them to the Rabbies and Papinians of our â—awes for that were to instruct Minerua or to submit them to the Judgement of illiterate Lozels for they would contemne what they did not conceive so as he may say of these writings as Caius Lucilius did of his quod ea que scriberet neque ab indoctissimis Cicer. de oratore l. 2. neque a doctissimis legi velle quod alteri nihil intelligerent alteri plus fortasse quam ipse de se that those things which he should write would not be read of those were most learned nor of those were not learned at all because these understood nothing and the others perhaps more then himselfe sic Pro captu lectoris habent sua fata
manerium and if there bee two distinct Mannors then shall they bee taken in the plurall number tota illa maneria that the grant be not void and 32. E. 3. A Fine was levied de maneriis B. and H. and the conclusion was quare praedictum manerium B. and H. ingressus est and good by averment that B. and H. were but one Mannor and though a Writ shall abate for false Latine because any one may purchase a new Writ at his pleasure yet in a grant it shall not because hee cannot purchase a new grant at his pleasure As 4. H. 6 f. 16. the Writ was Henricus dei gratia Rex Angliae Dus Heberniae whereas it should have beene Dns and for it in congruity the Writ did abate but in a Deed that should have beene good enough and so in a fine 9. E. 3. warranty was made in a fine eidem galfrido uxori suae where that should have been iisdem and yet good vide ibidem plura Co. l. 11. f. 3. and Coke com f. 146. ab but because such exceptions doe properly appertaine to Writs Deeds and Fines which have heretofore been composed and levied in the Latine tongue and that by the Act of 9. April 1651. it is enacted that all Patents commissions and all proceedings whatsoever in any Courts of Justice within the Common-wealth of England and which concerne the Law and administration of Justice be made and framed into the english tongue I will cease to heape more cases upon this rule they being chiefly in use for preterite Deeds conveyances and proceedings though not altogether uselesse in our English language for it also hath its grammaticall constructions and sometimes abreviations and therefore it is also in the above said Act enacted that mistranslations or variation in forme by reason of Translation or part of proceedings already begun being in Latine or part in English shall bee no error or avoide any proceedings by reason thereof Sect. 3. THe Law hath little relat ionto Rhetorick and is too strict an argumentative for that copious various and tropicall art Ornari res ipsa negat contenta doceri Doctum genus in doctorum hominum ad doceberniam vix docti But like ruggid and knotty tymber rejects the rhetoricall plaine and outward ornament which moved the critticke Erasmus to deride it and the civilian Hottaman to despise it not apprehending the depth and profundity of it for the Law as Sir Edward Coke is a deep well out of which every one drawes according to the strength of his understanding Cok. com f. 7.1 a. he which reacheth deepest seeth the admirable secrets of the Law which though in the beginning it seemeth difficult yet when the student diveth to the depth it is delightfull and therefore as the same Author in another place saith The generous student Cok. com f. 5. a. ought not to bee discouraged when he meeteth with knotty cases nescit enim generosa mens ignorantiam pati but will proceed on his reading with alacrity to know how to worke into with delight those ruffe Mines of hidden Treasure Coke com f. 235. to which worke as he also saith the knowledge of the liberall arts is requisite especially the art of Logick to labour in that various and intricate Labyrinth for it teacheth a man not onely by just argument to conclude the matter in question but to discover between truth and falsehood and to use a good method and reasonably to speake to any question for it is nothing else but ars rationandi the act of reasoning Coke com f. 344. h. and then wee are said to know the law when wee apprehend the reason of the law from whence arise these grounds and maxims and first from notations which by the consent of all Writers appertaine to Logick Notationes sunt quasi verae rerum notae Fons log and Bracton L. 4. c. 20. Ideo imposita sunt nomina ut demonstrent voluntatem dicentis utimur notis vocis ministerio notations are as it were the true notes of things sor therefore were they imposed that they might demonstrate the will of the speaker and wee use them as notes in the ministry of our Language as Socage is servitium socae i.e. carucae the service of the Plow because that the word soca was used for the Plow and the name of the court of Pypowders was derived from the dusty feet of the commers markets and faires being most frequented in Summer Lam. Arch. so religious houses were called monasteria of the solitarie life therein led which in latter daies was nothing lesse quia as one pleraque monasteria nihil minus sunt quam solitudines Dod. so the feudists in the civill law deduce homagium from hominium for by that name hee doth professe himselfe his man and Client And such notations and etymologies are not to be wrested but must bee answerable to the sound of the words and applied to the sense of which it is said by Coke com f. 68. b. that the right interpretations and etymologies of words are necessary which not only demonstrate their native conceptions but from them often produced arguments which are frequent among the Civilians as well as by the common Lawyers as Cicero arguing for Opimius then Consul useth this notation si Consul est qui consulit patria quid alius est Opimius Ployden 343 b. Testamentum est testatio mentis for of those two words is it compounded and there is no other testation of the Testators mind here but for the twelve Acres in Rigdens case So Cok l. 8. 37. a. a Barrator is derived of two legall words bar which signifieth the bar in Court where causes are debated and retium which signifieth a crime and offence because a common barrator is chiefely an offendor in moving and maintaining of quarrels at barres in Courts and Coke l. 10. f. 128. a. reditus dicitur a reddendo quia retro it to wit to the Lessor or Donor and that is the reason that the Rent so reserved is not due before the day of payment because it is to be rendred and restored of the issues and profits vide Yet as Doderidge such arguments are not to be used at all times and occasions but when necessity requireth the same or apt consequence doth offer a fit occasion or rather as Coke l. 7. f. 27. b. Calvins Case Arguments drawn from Etymologys are too weake or too light for Judges to build there Judgments on yet when they agree with the Judgment of the Law Judges may use them for Ornaments From the Predicable GEnerale nihil ponit generale nihil certum implicat Cok. l. 2. f. 33.34 in Doddingtons Case a generality determineth nothing and a generality implyeth no certainty as if a common person be bound to devise or grant all his Lands which he hath within the tenure of I. B. in W. the Obligor may say that he hath no Land there for
proferentem accipienda sunt Bacon Eliz. f. 11. As if I demise omnes boscos meos in villa de Dale for years this passeth the soile 14. H. 8.28 H. 8. Dyer 17. And if I sowe my Land with Corne and let it for for yeares the Corne passeth to my Lessee And if I grant ten pounds rent to Baron and Feme and if the Baron dye the Feme shall have three pounds rent because these words rest ambiguous whether I intend three pounds by way of addition or three pounds by way of deduction out of the rent of ten pounds it shall be taken strongest against me that it is three pounds addition to the ten pound of which more hereafter So Coke fol. 303. b. Ambiguum placitum interpretari debet contra proferentem An ambiguous Plea shall be taken strongest against the pleader for every one is presumed to make the best of his own Case and Coke l. 10. f. 50. Ambigua responfio contra proferentem est accipienda the Bishop of Sarums Case vide ibidem In obscuris secundum magis similius est judicandum vel quod plerumque inspici solet Regula I. C. and Coke l. 4.13 14. Sensus verborum ex causa dicendi accipiendus est sermones semper accipiendi secundum subjectam materiam In obscure and dark sayings we are to judge according to that which is most likely and which is wont to be and the sense of the words is to be collected from the cause of the speech and to be taken according to the subject of the matter which rule seemeth to qualify and moderate the other two vide ibidem S. Cromwells Case as first in words the Plaintiff bringeth an action upon the case for calling of him Murderer to which the Defendant said that as he was speaking with the Plaintiff concerning unlawfull hunting the Plaintiff confessed that he had killed diverse Hares with Engins to which the Defendant answered that he was a murtherer innuendo a murtherer of Hares and it was resolved that the justification was good for upon an action of slander the likeliest sense of words is to be taken and collected out of the occasion of the speech Coke ibidem And so in Deeds as if I have a free Warren in my land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren 32. H. 6. which is the more likely meaning for otherwise the Lessor would have excepted the Warren Vnivocum denoteth words of a certaine and distinct signification and expresseth the thing cleerly without any obscurity or Ambiguity of which the Law taketh especiall notice for that certainty in all contracts and conveyances is the cause of quiet and setlement of estates but incertainty is the author of variance and dissention from whence we have these notable grounds and maximes Misera est servitus ubi jus est vagum Coke l. 5. f. 42. a. God forbid that the inheritances of men should depend upon incertaines and it is a miserable servitude where the Law is wavering and therefore Ployd f. 28. a. In every Common-wealth it is necessary and requisite that things should bee certainely conveyed for certainty engendreth repose and incertainty contention The occasions of which contention our Law foreseeing hath prevented and therefore ordained that certaine ceremonies should be used in the transmutation of things from one man to another and namely of Frank-tenements which are of greatest estimation in our lawes to know the certaine times when things do passe and therefore in every Feoffment the Law ordeineth that livery and seisin shall bee made and in every grant of a reversion or rents that attornement should be made which are points certaine containing time wherefore it is well observed by Sir Edward Coke in his Preface to the second part of his Reports that in all his time there have not beene moved in the Courts of Justice of England two questions touching the rights of descent escheats or the like fundamentall points of the common-Law so certaine sure and without question are the principles and grounds thereof That as Sir John Davis in his preface there is no art nor science which standeth upon discourse and reason which hath her Rules and Maxims so certaine and infallible and so little subject to diverse interpretations as the common Law of England Whence Sir Edw. Coke is bold to pronounce that the Common Law of England is not incertaine in the abstract but in the concrete and that the incertainty thereof is hominis vitium non professionis the imperfection of man and not of the profession and lib. 6. f. 43. a. in particular blameth hee the subtile inventions imaginations of men in the practise of uses which have introduced many mischiefs inconveniences contrary to the ancient common law which hath certain rules to direct the estates and inheritances of men and therefore is it without comparison better to have Estates and Inheritances directed by the certaine rule of the common Law which harh beene the ancient true and faithfull servant to this Common-wealth then by incertaine imaginations and conjectures of any of those new inventors of uses without any approved ground of law or reason Coke l. 6. f. 43. a. And therefore in all cases law and equity will that incertainty bee avoided as the author of contention and that there bee an end of all controversies according to equity and right which is the finall intention of all Lawes Coke l. 8. 53. And Coke l. 1. f. 85. a. The Judges ought to know the intention of the parties by certaine and sensible words which are agreeable and consonant to the rules of Law as if Land bee given by deed to two to have and to hold to them and haeredibus it is void for the insensibility and incertainty and though it hath a clause of warranty to them and their heires that shall not make the first wordes which are incertaine and insensible to bee of force and effect in Law although his intent appeareth but his intent ought to bee declared by words certain and consonant to Law So Coke comment f. 20. b. If a man letteth Lands to A. for life the remainder to B. in taile the remainder to C. in forma praedicta the remainder is void for the incertainty And therefore Ployd f. 272. a. giveth this ground that every contract sufficient to make a Lease for yeares ought to have certainty in three limitations in the beginning of the terme in the continuance and in the end of the same all which ought to be known at the beginning of the Lease and the Lease that wanteth them Mr. Brown said is but bibble babble vide ibidem Fullers case and Coke l. 6. f. 35. the Bishop of Bathes case Ployd f. 14. a. If I give all my mony in my purse to I. S. hee cannot have an action for it unlesse hee alledge the certainty of it so as without certainety the action is not maintainable according to
the obligation is good and the Obligee may declare upon a Solvendum to himselfe 4. E. 4. 29. for contraria non possunt simul esse in eodem subjecto Arist 5. Phys contraries cannot be together in the same subject Omnis privatio presupponit habitum every privation presupposeth an habit Coke com f. 341. b. and l. â—0 f. 86. b. To many purposes a Parson hath in effect but an estate for life and to many a qualified fee but the entire fee and right is not in him and that is the reason that he cannot discontinue the Fee-simple that he hath not nor ever had for every privation presupposeth an habit From authority and example ARgumentum ab authoritate firmissimum est in lege an argument from authority is the strongest in Law Coke com 254. a. our Book cases are the best proofes what the Law is and after the example of Littleton Booke cases are principally to be cited for deciding the cases in question and not any privatâ— opinion according to the rule Nulla hominis authoritas tantum apud nos valere debet ut meliora non sequeremur si quis attulerit no mans authority ought to prevaile so much with us as that we may not follow the better whosoever shall alledge it as Littleton here rejecteth the opinion of Newton and followeth the better authorities in Law Coke com f. 383. a. And whereas by the Civil Law as Sir John Davis observeth every Doctors opinion is vouched and cited of them as good authority it must needs breed distractions of opinions and variations according to which sense the logicall axiom is to be taken locus ab authoritate est infirmissimus Boethius An argument from authority is most weake and prevaileth little or nothing in resolving the question as the Poet pressely Nil agit exemplum litem quod lite resolvat to cleere a quaere example stands for nothing whereas our Law arguments are deduced from the strength of cases apt to the purpose and presidents of former times founded on the discourse of reason and consideration of the wisest and sagest Judges and are no inartificiall arguments as ipse dixit or teste me ipso but are drawn out of the termes and bowells of the issue by arguments and conclusions of reason Nullum exemplum est idem omnibus Coke com 212. a. 317. b. No example is the same to all and therefore it is the best meanes in all assurances to take counsell of learned and well experienced men and not onely to trust without advise to presidents for as the Aphorisme holdeth in the state of a mans body nullum medicamentum est idem omnibus no salve is the same to all so doth the rule in the estates and assurances of Lands no example or president is the same to all Periculosum existimo quod virorum bonorum non comprobatur exemplo Coke com f. 81. b. I deeme it dangerous that is not approved by the president of good men and therefore it appeareth how safe it is to be guided by judiciall presidents Littera scripta manet Coke com f. 115. a. A written word remaineth and therefore a record or sufficient matter in writing is a good memoriall whence it is said when we will by any record or writing commit the memory of any thing to posterity tradere memoriae and for this reason it is that regularly a man cannot prescribe a custome against a statute because it is matter of record and is the highest proof and matter of record in Law yet a man may prescribe against an Act of Parliament when by prescription and custome it is saved by an other Act of Parliament Nihil in lege intolerabilius est eandem rem diverso jure teneri Coke l. 4. f. 93 in Slades case There is nothing more intollerable in law then that the latter judgement should contradict the former and therefore 37. H. 6. f. 22. Aske said such Charters have beene allowed in the time of our Predecessors who were as sage and learned as wee and Markham 5. E. 4. f. 41. It is good for us to doe as it hath been used in former times and not to keepe one way one day for one party and another day the contrary for another party The former presidednts are enough for us to follow So 11. E 3. Title Formedon 22. It was holden that ancient formes and manner of presidents are to be maintained and observed and 34. Ass Pl. 7. That which hath not been according to usage shall not be permitted and in 2. E. 3. 29. The ancient forme and order is to be observed and 39. H. 6. 30. The opinion of Prisâ—t and all the Court was that they would not change their use notwithstanding that their opinion was to the contrary and 4. E. 4. 44. All the Justices said we cannot change the course hath been before for it should be inconvenient and it is said 3. E. 4. 1. That the course of Courts maketh a law And therefore all the Justices in ancient times and from time to time being as well in matters of forme as in deciding of doubts and questions and as well at the common law as in construction of Acts of Parliament have given great regard to the ancient presidents and judgements of the preceding judges as Ployd f. 99. b. It was advised by the Court according to the book of 7. H. 4. That an accessary shall not be arraigned as an accessary to one principall untill the other principals may be attainted because it did seeme the better way to the Court to pursue the same order that the Sages before had used And so here in Slades case in respect of the infinite presidents which the Secondary of the Prothonotaries of the Kings Bench did shew to the Court it was resolved before all the Judges of England in the Exchequer chamber that though an action of debt lyeth upon a contract yet the Bargainer may have an Action of the case or an Action of debt at his election Coke ibidem Mos retinendus fidelissimae vetustatis quae praeter consuetudinem morem majorum fiunt neque placent neque recta videntur frequentia actus multum operatur The ancient manner of the most faithfull antiquity is to be retained and what are contrary to the custome and use of the Elders doe neither please nor seem right and the frequency of acts worketh much Coke l. 4 f. 74. and therefore it was there resolved by the chief justices Popham Anderson and by Pyriam chiefe Baron and other justices that the ancient and usuall elections of Mayors Bayliffs c. by a certaine selected company of the principals of the commonalty and Burgesses commonly called the common councell c. were good and well warranted by their Charters and by their lawes also Multa ignoramus quae nobis non laterent si veterum lectio nobis fuit fâ—miliaris Coke l. 10. 73. We are ignorant of many things which would not be
yeare and the right descendeth to the heire within age he shall be bound to that yeare commenced in his Father and his nonage shall not availe him there because his Father was of full age Ployd 372. a. So non-claime of a villaine of an infant by a yeare and a day who hath fled into ancient demesne shall take away the seisure of the infant And if an infant bringeth not an appeale within a yeare and a day he is barred of his appeale for ever for the Law respecteth more liberty and life then the priviledge of infancy If the King be seised of Lands and the Land descend to the successor this shall bind an infant for that the priviledge of the infant in this case holdeth not against the King Coke com f. 246. a. Though it be regularly true that no laches shall be adjudged in infants for not entry or claime to avoid descent yet laches shall be accounted in him for not performing a condition annexed to the State of Land for the laches of an infant for not performing a condition annexed to an estate either made to his Ancestor or himselfe shall bar him of the right of the Land for ever as if either of them be enfeoffed reserving a rent and for default of payment a re-entry the laches of either of them in not paying the rent shall disinherit either of them for ever But if a man maketh a feoffment in fee to another reserving a rent and that if he pay not the rent within a month ne shal double the rent and the feoffee dyeth his heir within age and the infant payeth not the rent he shall not for this laches forse it any thing for that the infant is provided for by the Statute non current usurae contra aliquem infra aetatem existentem Merton C 31. An infant is impleadable in Law and for his contempt shall be punished as a man of full age as an outlawry returned against an infant is good and not erronious so as he hath passed the age of fourteen years 2. H. 5. Dyer 104. b. and 3 H. 6. An infant was forced to answer upon breach of a prohibition in an estreapment An infant is bound by any Statute Law if he be not expresly excepted in it as in fore-judger recovery in Cessavit and fines with proclamations Doctor Student c. 45. 147. And that if he had not been excepted in those Statutes they should have bound him an infant prayeth to be received and it is traversed he shall find sureties of the meane profits as an heire of full age Dyer 104. b. An infant under the age of fifteen cannot wage Law either for a debt or default of any reall action Office of Exec. f. 346. If an infant be garden of a prison and suffereth a prisoner to escape he shall pay the debt because the Statutes are generall and by that reason he may by a penall Statute loose his Goods Doct. and Stud. C. 46. 147. If one enter into a freehold of an infant with his consent this is a disseisin because an infant cannot consent to an entry An infant under one and twenty cannot be a Bayliff receivor for want of skill or ability nor yet sworn in any Enquest or Jury and is uncapeable of a Stewardship of the Court of a Mannor in possession or reversion or any office concerning the administration of Justice Coke com f. 3. b. 157. a. And not capeable to performe grand Serjeanty at the coronation ibidem 107. b. Actus non facit reum nisi mens fit rea Coke com f. 247. b. The act doth not make one guilty unlesse the mind be guilty and therefore if an infant under the age of discretion commit an act amounting to a Felony shall stand free from the attainder and punishment incident to a Felon but if he be of the age of discretion though he be not of full age he shall suffer as a felon and regularly the age of discretion accounted by the Law is fourteen yeares and therefore shall such an one incur the like attainder os felony as one of full age Office of Executor f. 244. and Coke com f. 247. b. But non est regula quin fallit for one of much lesse yeares having attained the maturity of discretion if he commit any felonious act shall suffer as a Felon as it was resolved in the time of King Henry the seventh in the third yeare of his reigne f. 16. touching an infant but of the age of nine yeares who killing another boy of the like age with a knife and then hiding the slaine boy and excusing the blood found upon him by saying that his nose had bled it was held by the Judges that he was to be hanged as a Felon his such nonage notwithstanding and by King Ina's Law puer decem annos natus surto conscius arguatur an infant of the age of ten years shall be attainted of theft if guilty thereof but Doctor and Student applyeth an infants discretion to the knowledge of the Law so that if an infant doe a murther at such yeares as he hath discretion to know the Law he shall have the punishment of the Law as if he were of full age and this is by a maxime in the Law for eschuing of murthers and felonies and so it is of trespasses cap. 46. f. 148. If a dumbe person bring an action he shall plead by procheine amy Finch Nomot It was a time when Idiots and mad men and such as were deafe or dumb were disabled to sue because they wanted reason and understanding but at this day they all may sue but the suite must be in their names and it shall be followed by others Coke com f. 135. b. A man that is borne dumb may make a grant by delivery of his hands or signes and a man borne deafe and dumb may make a guift if he have understanding and though it be an hard matter that a man shall have understanding without hearing yet there are diverse such persons as have understanding by their sight and a man borne dumb and blind may have understanding but a man borne dumb deafe and blind cannot have understanding Perk. f. 6. Furiosus furore suo punitur Coke com f. 247. b. The Law favoreth a mad man by reason of his disability in criminall causes and because he is amens sâ—ne mente without his mind and discretion he shall not suffer for any felonious fact for the intention is the forme of Felony that is if it be done felleo animo with a bitter and mischeivous mind and therefore is he punished onely with his madnesse there are foure sorts of mad men the first is an Idiot which from his nativity by a pertuall infirmity is non compos mentis 2. is he that by sicknesse or other accident wholly loseth his understanding 3. A Lunatick who hath sometimes his understanding and sometime hath not aliquando gaudens lucidis intervallis and is called non compos mentis
of England I have been too copious in the exemplification of this ground by so many notable cases drawn on by the variety and curiosity of them they being exorbitant from the beaten tract of the common Law from which for the better effecting and doing of right the Law deemeth it convenient and necessary to swarve and deviate and that in favorem juris et recti To add one example more if an obligation be made beyond the Seas and it beareth date at Burdeaux in France where shall it be sued answere is made that it may be alledged to be made in quodam loco vocato Burdeaux in France in Islington in the County of Middlesex and there shall it be tryed for whether there be such a place in Islington or no it is not traverseable in that case Coke com 261. b. Executio juris non habet injuriam Reg. I.C. Hobaâ—t f. 266. The execution of the Law hath no injury As if a man bringeth an action upon a false surmise in a proper Court he cannot bring an action against him and charge him with it as a fault directly and ex diametro as if the suite it selfe was a wrongfull act for the execution of the Law hath no injury So Coke com f. 161. a. It is regularly true that a man shall not be punished for suing of Writs in the Kings Court be it of right or wrong ibidem And therefore 11. Eliz. a man brought a Writ of forger of false deeds the Defendant though he be found guilty could not have a scandalum magnatum and lay the charge contained in the action to be the scandall for no punishment was ever appointed for a suite in Law although it be false and upon vexation vide Dyer f. 285. Pl. 37. And so we rule it every day that if a man be imprisoned upon a formall suit though there were no just cause of suite yet if he give a bond for his release he shall not avoid it by duresse because it is incarceratio legitima Hob. 1. l. And though every thing by nature is good and as Saint Paul saith The Law is good if a man use it lawfully yet the abuse of the Law is the fact and therefore on the contrary part if you charge me with a crime in a Court that is no way capeable of the cause I shall have an action for it and lay that very complaint to be the slander as Coke l. 4. f. 14. b. Wood exhibited a bill in the Star-Chamber against Barkeley and inter alia charged him that he was a maintainer of Pirates and Murderers c. B. brought an action of the case against W. and counted that the said W. had exhibited a bill in the Star-Chamber containing inter alia that the said B. was a maintainer of murderers and pyrates c. and it was resolved that for any thing contained in the bill which was examinable in the said Court no action lyeth although the matter was meerly false because it was in course of Justice but for the said words not examinable in the said Court an action upon the case lyeth for that could not be in course of Justice vide ibidem plura And if a man sue me in a proper Court yet if his suite be utterly without ground of truth and that certainely known to himselfe and thus as the Civilians it be done animo injuriandi I may have an action upon the case against him for the undue vexation and damage that he putteth me unto by his ill practise though the suite it selfe be legall but I cannot complaine of it as it is a suite and therefore the sixteenth of E. 3. Fitz. deceipt 35. A Conusee of a Statute sued execution against his deed of defeasance whereupon the Conusor had an action of deceipt against him and his Assignee in the nature of an Audita querela yet though he was imprisoned upon the Statute could he not bring an action of false imprisonment if he had paid the mony before the day limited by the defeasance because he was imprisoned by course of Law 43 E. 3.33 And if a man sue me and hanging that suite commenceth another against me to this I have a Plea in abatement which proveth this latter suite unjust and vexatious but if he discontinue the former he may bring a new action 43. E. 3. for as Coke com f. 130. a. It may be he hath mistaken some thing in that action or was not provided of his proofes or mistaking the day or the like Likewise I hold I may have an action of the case against him who sueth me against his release or after mony duly paid yea though it be upon a single obligation Hob. ibidem But in these cases these two cautions are to be observed that the new action be not brought before the other be determined because till then it cannot appeare that the other was unjust 2. R. 1. And for this reason a Writ of conspiracy lyeth not untill the Plaintiff is acquitted The other is that besides the thing done amisse there must also be a damage either already suffered or else inevitable and therefore 19. H. 6.44 If a man forge a bond in my name I can have no action of the case yet but if I be sued I may for the wrong or damage though I may avoid it by Plea but if it were upon a recognizance or fine I shall have a deceit presently before execution for Quae incontinente aut certo fiunt in esse videntur and 43. E. 3. 10. deceit against one who procured a Formedon by collusion vide ibidem plura in Waterers case And this rule faileth in a Writ of Replevin against the Lord as if the Lord distraine for rent and the tenant bringeth a Replevin whereby the Lord is disturbed of the meanes to come to his rent this is in Law a disseisin Coke com f. 161. a. Nullus commodum capere potest de injuria sua propria Coke com f. 147. b. No man shall take advantage of his own wrong as if B maketh a lease of one Acre for life to A. and A. seised of another Acre in fee granteth a rent-charge to B. out of both Acres and doth wast in the Acre which he holdeth for life B. recovereth in wast the whole rent is not extinct but shall be apportioned and yet B. claimeth one Acre under A. and so it is if A. had made a Feoffment to B. in fee and B. had entered for the forfeiture the rent is not wholly extinct but must be apportioned and the reason hereof is for that is a maxime of Law that no man shall take advantage of his own wrong And therefore seing the wast and the forfeiture were committed by the act and wrong of the Lessee he shall not take advantage thereof to extinguish the whole rent and the whole rent cannot issue onely out of the other Acre because the Lessor hath one Acre under the estate of the Lessee and therefore
7. Quicquid non excutitur justitia non putatur Reg. I.C. Coke l. 6. f. 52. a. Quicunque aliquid statueret parte inaudita altera aequum licet statuerit haud aequum fecerit whatsoever is not discussed and tried is not to be reputed Justice and if any one shall decree any thing one of the parties being not heard though he doth decree that is right yet hath he not done that is just and equall in Bosewels case where it was resolved that no Incumbent shall be removed by a Quare Impedit or an Assise of Darrein presentment purchased within the six moneths unlesse the Incumbent be named in the Writ although the Incumbent be in a defeasible Title for then he shall be removed and adjudged not being heard Quicunque aliquid c. So Coke l. 11. f. 99. a. in James Baggs case though the Mayor and Counsel-chamber of Plymmouth have lawfull authority either by their Charter or Prescriprion to remove any one from his freedome and that they have just cause to remove him yet if it appear by the return that they have proceeded against him without hearing him to answer to what is objected or that he was not reasonably warned such a removement is void and shall not bind the party In ancient times where any were found guilty by the good people by Inquest for any mortall Offence the King gave order to execute them without any answer Mirror of Justice which custome may seem to be derived from the Dictators power among the Romans who had authority to cast any into prison and to punish him with death indicta causa And which also was a custome among the Gauls De Laud. l. Aug. 4. 82. whom now we call French which as Fortescue saith in his time remained among them to wit That the King usually calling his Nobles into his Counsel-chamber without any form of judgment were adjudged criminous by the Conscience of the Prince and thereupon were they presently by the Marshals servants put into Sacks and in the night by them precipitated into deep rivers and so drowned And which custome also was used in Almaine But King Alfred in compassion of the frailty of man who cannot keep himself from sinning without the assistance of the grace of God abrogated that custome and decreed that no Appelle or Inditee should be condemned or executed without answer Mirror of Justice l. 2 f. 3. which still continueth and therefore saith Coke l. 2. Epist ad lectorem are our Lawes commended above other which punisheth not the greatest Offenders though it be for Treason but by just and equall proceedings in Law according to the ancient Lawes of England declared by the generall Charter Nulli vendemus nulli negabimus justitiam rectum And therefore saith Fortescue De Laud. l. A. f. 122. It is part of the charge of the Judges Oath not for any command of the Prince either by Letters or by word of mouth to deviate from Justice or to deny right to any but to minister justice and right indifferently to all as well enemies as friends and accordingly saith he Queen Elizabeths charge to the Justices was That for no commandment of hers common right should be disturbed or delayed Whereas in other Countries the Judges had rather misconster the Law and do injustice then to displease the Kings humour according to the old Sarchasme Ad libitum regis sonuit sententia legis For which unlawfull and wilfull perversness some of our later Kings have been blamed and for which as Frossard saith l. 2. c. 3. Edward the second was condemned quod in audita causa aliquos proceres de medio tollebat that he did punish with death some of his Nobles without hearing their case neither was the stupendious proceeding of Henry the eigth against his new created darling the Lord Cromwell commendable Hen 8. f. 71 or allowable though acted by Parliament who being accused of high Treason and Heresie as Godwin saith inauditus damnatur is condemned without hearing his answer Neither is David's unjust judgment in condemning Mephibosheth being absent 2 Kings 16. and unheard upon the false accusation of Siba approved for whosoever shall decree any thing the other being not heard though the decree be right yet it is not just and equall Quicunque jussu judicis aliquid fecerit non videtur dolo malo fecisse quia parere necesse est Coke l. 10. f. 70. b. He that doth any thing by commandment of the judge seemeth not to have done any thing with a fraudulent intent because he needs must obey And therefore the Officers and Ministers of a Court are not to be punished for executing the precept and warrant of the Court whereas if they had refused to do it the Court would have punished them for their disobedience As in 16 E 3. 70. it is taken for a Maxime that the thing which the Officer doth by Precept or warrant of the Court cannot be said to be against the peace Dr. Stud. f. 150. The Officers of the King are bound to execute the Writs of the King at their perill But this diversity is to be taken that when a Court hath jurisdiction of a Cause and proceedeth erroniously there the party who sueth or the Officers and Ministers of the Court that execute the precept and proces of the Court are not liable to an action but when the Court hath no jurisdiction of the Cause and all the proceeding is coram non Judice actions do lye against them without any regard to the precept or proces for when he hath no jurisdiction he is no judge and it is not of necessito obey him who is no judge no more then a meer stranger for it is a rule Extra terratorium jus dicente non paretur impune He that obeyeth in prescribing Lawes beyond his jurisdiction shall not go without punishment Co. ibid. f. 57. A B. And therefore 22 E. 4.33 Pigot said that if the Court hath not power and authority their proceeding is coram non Judice As if the Court of the Common Bench hold plea in an appeal of death robbery c. and the Defendant is attaint it is coram non Judice but if the same Court in an a plea of debt award a Capias against a Duke c. which by the Law lyeth not against him and it appeareth in the Writ it self yet if the Sheriff arrest him by force of that Capias because the Court hath jurisdiction of the Cause the Sheriff is excused though the writ is against the Law And so if a Capias commeth unto him without an Originall and he serveth it it is excusable in false imprisonment Dyer f 60. pl. 26. So if a Iustice of Peace make a Warrant to arrest one for felony which is not indicted though the Iustice of Peace erre in the Warrant of it yet he that maketh the Arrest by force of that Warrant shall not be punished by a Writ
granteth a lease for life or yeares he hath the reversion in him which he may lawfully grant but the Law requireth in this case that he be not deceived in his estate and to grant the possession of the Land whereas he hath but a reversion and therefore when he granteth the Land notwithstanding that it be in lease for life or for yeares of Record or otherwise the grant is good When the words of a grant are not sufficient ex vi termini to passe the thing granted but the grant is utterly void there any non obstante cannot make the grant good vide ibidem plura Davis f. 75. In the case of Commendams By our Law what is wrong and malum insert and against the Law of God cannot be dispensed with and therefore 11 H. 7. 12. a. It is said that the King cannot dispense with any that doth nusance in the High-way and if he doth it that such a dispensation is void 8 H. 6. 19. The King cannot grant that if a man doth a trespasse to me that I shall not have an action against him or that a man shall be his own Judge and therefore it is often said in our Books that the prerogative of the King shall doe no wrong to the Subject 13 E. 3. 8 So though the King may dispense with a Statute which prohibiteth an indifferent thing to be done yet he cannot change the common Law by his Patent 37 H. 8. Patent 110. And as to the Pope it is often said in the Bishop of St. Davis case that the Bulls of the Pope cannot change the Lawes of England Notwithstanding the word non obstante was first invented and first used in the Court of Rome which as Sir John Davis observeth f. 69. b. was a mischeivous precedent to all the common Weales of Christendome for the temporall Princes perceiving that the Pope dispensed with his Canons in imitation of him have used their prerogative to dispense with their penall Lawes and Statutes and whereas before their Lawes were religiously observed as the Lawes of the Medes and Persians Davis f. 77. The Law which ordaineth that the first benefice shall be void by the acceptance of the second may be dispensed with and so is it of the Law that ordaineth that when a man is made a Bishop that his other Benefices shall be void as Thrining saith 11. H. 4. 213. b. For those Laws were made by Ecclesiasticall policy and therefore the same policy may dispense with those Laws permissio non est officium legis quia lex ad fert necessitatem Reg. I. C. permission is not the office of the Law for the Law bringeth necessity As by the Statute of W. 2. Lands were permitted to be entailed and usury also by many Statutes yet can they not properly be termed Lawes and Statutes Confessus in judicio pro judicato habetur quodam modo sua sententia damnatur Coke l. 11. f. 30. He who confesseth in the Court of Justice is holden adjudged and in a certaine manner is condemned by his own mouth or sentence And therefore the Attainder in confession is the strongest attainder may be for the vehement presumption it hath of truth for it should be absurd to say that he hath not done such a Felony since the party himselfe hath confessed it to the distruction of him and all his off-spring And the case of confession is a stronger case then guiltinesse by verdict for though he be found guilty by verdict yet may he be innocent and therefore at the common Law he may have his Clergy and make his purgation but if he had confessed the offence upon record he shall not have his Clergy at the common Law because he could not make his purgation when the Court findeth his confession on Record for in the intendement of the Law he cannot contrary his expresse and voluntary confession in Court vide ibidem plura In praesentia majoris cessat potentia minoris Manhood in Ployd f. 498. a. In the presence of the greater power the lesser power ceaseth All the Justices agreed that the Ordinary the Patron and King ought to agree in making an impropriation and the Ordinary is the principall aagent in it in that he hath the spirituall jurisdiction and the act of appropriation is a thing spirituall and what the Ordinary of the Diasis might doe that the Pope used to doe in the Realme as supreame Ordinary and was a long time suffered so to doe and did use to make appropriations without the Bishop which were taken to be good and the Bishop never contradicted but accepted them as good for in the power of the greater the power of the lesser ceaseth and in all Ecclesiasticall jurisdiction his authority was taken as absolute and did bind the Bishop as his inferior in all acts now such authority and jurisdiction as the Pope used within this Realme was acknowledged by the Parliament 25. H. 8 and other Statutes to be in the King and that he might lawfully doe all that the Pope was accustomed and used to doe within this Realme and from him it descended to his Son Edward who as superame Ordinary did make the appropriation of his own authority and jurisdiction without the Bishop and did put these words in his Charter authoritate nostra regia ecclesiastica qua fungimur vide ibidem plura Vectigal ab origine ipsa jus caesarum est patrimoniale lex imperatoria Custome from the beginning is the right and patrimony of Caesar and Emperors and are called vectigalia a mercibus evectis invectis from Merchandizes exported and imported for custom is a prerogative and benefit to which Kings and Princes are by the Law of Nations intitled And as the Law Nations were before Kings so Kings were made by the Lawes of Nations ex jure gentium originem suam traxerunt Baldus and as soone as they were made Kings presently the Law of Nations did annex the prerogative of custome to their severall Crownes so saith Baldus cum creatus fuerit Rex omnia regalia ei conceduntur competit omnibus regibus jus imponendi vectigalia when a King was created all royall incidents were granted to him and the right of imposing customes appertained to all Kings Wherein the rules of our Law as Davis observeth f. 12. are agreeable with those of the imperiall Law for we also say that custome is the ancient inheritance of the Crowne of England and that inheret sceptro and is as ancient as the Crowne it selfe and is due by common right and by prescription and not by the grant and benevolence of Merchants or by Act of Parliament Dier 165. b. And whereas by the imperiall Law Primaria vectigalium causa ac ratio fuit ut plana tutaque mercatori praetereunti itinera praestarentur Plin. l. 19. c. 4. The first cause and reason of customes was that plaine and safe voyages should be exhibited and assured to the Merchants and in our
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
will 393 Ad proximum antecedens fiat relatio let the relation be to the next antecedent 9 Ad questionem facti non respondent judices nec ad questionem juris respondent juratores The Judges are not to answer to the question of Fact nor the Jurors to the question of Law 331 Ad proximum antecedens fiat relatio nisi impediatur sententia Let the relation be to the next antecedent unlesse it be hindered by the sence 10 Aestimatio praeteriti delicti ex post facto nunquam crescit The estimation of a past fault is not amplified by any matter subsequent 305 Aequitas est verborum legis directio sufficiens qua una res solummodo cavetur verbis ut omnis alia in aequali genere iis deÌ„ caveatur verbis Equity is a sufficient direction of the words of the Law when one thing onely is provided for by words that every other thing in the same kind may be provided for by the same words 312 Aequitas est correctio legis generaliter latae qua parte deficit Equity is the correction of the Law wherein it is any way wanting by reason of the generality of it 312 Affectus punitur licet non sequatur effectus The affection to do a thing is punished though the effect doth not follow 195 Affectio tua nomen imponit operi tuo Every affection or intention giveth a name to the work 197 ffirmativum negativum implicat An Affirmative implyeth a Negative 132 Agentes consentientes pari poena plectuntur The Agent and the Consentor are to suffer the like punishment 60 Aliquis non debet esse judex in propria causa immo iniquum est aliquem esse suae rei judicem No man ought to be a judge in his own cause and it is an unjust thing that a man should be judge of his own matter 371. 351 Amor descendit Love descendeth 163 Ambiguum pactum contra venditorem interpretandum est ambigua verba contra proferentem accipienda sunt An ambiguous contract is to be expounded against the Seller and ambiguous words are to be taken against the Speaker 27 Ambiguum placitum interpretari debet contra proferentem ambigua responsio contra proferentem est accipienda An ambiguous plea shall be taken strongest against the Pleader 27. and an ambiguous answer is to be taken against the Utterer 28 A majori digniori fieri debet denominatio A denomination ought to be from the greater and worthier thing Apices juris non sunt jura The tittles or nicities of the Law are no Law 457 Argumentum a divisione est fortissimum An argument from division is strongest 133 Argumentum ab authoritate fortissimum est in lege An argument from authority is strongest in Law 126 A verbis legis non est recendum VVe ought not to go from the words of the Law 423 B. BEnedicta est expositio quando res redimitur a destructione Blessed is the exposition when a thing is redeemed from destruction 443 Benignae faciendae sunt interpretationes chartarum propter simplicitatem laicorum ut res magis valeat quam pereat Interpretations of Deeds and Charters for the simplicity of the Laity are favourably to be made that the thing may rather stand and subsist then fall and perish 144 Benignior sententia in rebus generalibus dubiis est praeferenda In generall and doubtful things the most favourable exposition is to be preferred 26 Boni judicis est lites dirimire expedit reipublicae ut sit finis litium propter communem omnium utilitatem It is the part of a good Judge to cut off Suits and it is good for the Common-wealth there may be an end of Suits for the common profit of all 387 Bonum est benefacere die sabathi It is good to do good on the Sabboth day 5 C. CHarta non est nisi vestimentum donationis A Charter is nothing else but the apparell of the Deed 199 Caveat actor Let the actor take heed what he doth 323 Caveat Emptor Let the Buyer take heed 322 Causa origo est materia negotii the cause and the beginning is the matter of the businesse 65 Cessante ratione legis cessat Lex The reason of the Law ceasing the Law ceaseth 421. 46. Certum est quod certum reddi potest That is certain which may be made certain 33 Certa debet esse intentio narratio Counts and Declarations ought to be certain 38. 318 Cessante causa cessat effectus the cause ceasing the effect ceaseth 75 Cessante causa cessat causatum The cause ceasing the thing caused ceaseth 76 Clausulae inconsuetae semper inducunt suspitionem Unaccustomed clauses alwaies induce suspition 291 Constructio juris non facit injuriam The construction of Law doth make no injury 244 Communis error facit jus Common error maketh right 344 Consuetudo est optimus legum interpres Custome is the best Interpreter of the Lawes 348 Consuetudo manerii loci est observanda The custome of the mannor and place is to be observed 348 Consuetuto vincit communem legem Custome overcometh the Common Law 350 Consuetudo tâ—llit legem Custome taketh away the Law 352 Consuetudo privat communâ—m legem Custome doth deprive the Common Law 353 Consuetudo licet sit magnae authoritatis nunquam tamen prajudicat manifestae veritati Custome although it be of great authority yet it shall never prejudicate a manifest truth 354 Consuetudo debet esse certa nam incerta pro nullis habentur A custome ought to be certain for incertain things are taken for nothing 354 Consuetudo semel reprobata non potest amplius induci A custome once cast off cannot again be brought in 355 Conjunctio maris feminis est de jure naturae The coupling of man and wife is of the Law of nature 146 Confessus in judicio projudicato habetur quodam modo sua sententia damnatur He that confesseth in the Court of Justice shall be taken judged as it were is by his own sentence condemned 397 Conditio beneficialis quae statum construit benigne secundum verborum intentionem est interpretanda â—diosa tamen quae statum destruit stricte secundum verborum proprietatem est accipienda Provisoes and Conditions which go in destruction and Defeasances of estates are odious in Law and are to be taken strictly and shall not be construed to make void any other use or estate which is not within the words of the Proviso but beneficiall Conditions which make an estate are favourably so to be taken according to the intention of the words 473 Cuicumque aliquis quid concedit concedere videtur id sine quo res ipsa esse non potest To whomsoever any one shall grant any thing he seemeth to grant that without which the thing it self cannot be 258 Cuilibet in sua arte perito credendum est We ought to beleive him that is skilfull in