within a Mannor time out of minde of man used was to grant parcell of the said Mannar in Fee-simple and never any grant was made to the heir of his body for life or for yeares and the Lord of the said Mannor did grant to one by copy for life the remainder over to another and the heires of his body and was adjudged that the grant and remainder over was good because the Lord having a custome and interest withal might grant a lesser estate for in this custome which enableth him to doe the greater enableth him to doe the lesse Coke com f. 52. b. for omne majus continet in se minns and regularly it is true that where a man doth that which he ought to doe and more there it is good for that which is warranted and void for the rest Coke com 258. a. As if a Letter of Attorney be made to I. S. to make livery of seisin in white acre and he maketh livery in white acre and black acre there he doth idem aliud and therefore it is good for white acre that is according to his authority and void for black acre which is aliud from his authority Perk. 38. But otherwise it had been if the Letter of Attorny were to make livery of one acre and he maketh livery of two acres there it is void for both because it is not named in certaine in the Feoffment of which acre livery shall be made according to 4. H. 7. And so regularly it is true that where a man doth the same thing he is authorized to doe alio modo in another manner then the authority doth warrant there it is void for the whole Davis in case of tenures f. 21. As if I command a man to make a Feoffment in my name according to a copy shewed in Latine and he maketh a Feoffment to the same effect in English it is without warrant because he doth not pursue the authority in the same Mannor 10. H. 7. 9. So a Letter of Attorney is made to deliver seisin after the death of I. S. and the Attorney maketh seisin during the life of I. S. all is void 40. Ass 38. Authorities by Deed are to be pursued strictly and precisely both for matter and manner Davis ibidem f. 17. The Plaintiff did make a charter of Feoffment to the tenant and a Letter of Attorny to deliver livery of seisin the Attorney delivereth seisin upon condition this livery is void for the authority is not pursued in the same manner 12. Ass 24. 26. So on the contrary if the Letter of Attorney had been to deliver seisin upon condition and the Attorney maketh livery without condition this is void Co. Just 258. 11. H. 4. 3. So where an authority is given to enfeoff and he levieth a fine 10. H 7. 15. It is void Omne mandatum est temporaneum Reg. I. C. all commands are temporary and are extinguished by death which is the difference that the Civilians put between an authority and a command and that the commande is determined by the death of him that commandeth but not the authority as by these verses is signified Praeceptum non pracipitat mors praecipientis Mandatum mandatore cadente cadit But some hold opinion that they both expire by the death of him that commandeth or giveth authority which Fulbech saith is more agreeable to our Law especially in matters of Bailship of which notwithstanding these diversities may be observed A man deviseth all his lands to his Sister except one Mannor which he appointeth to pay his debts and he made two Executors and dieth the one Executor dieth yet the other may sell the Mannor and pay his debts Dyer 371. But if a Letter of Attorney be made to deliver Livery of Seisin after the death of the Feoffor the Letter of Attorney is void Coke com f. 52. b. And if a Mayor and Comminalty maketh a Charter of Feoffment and a Letter of Attorney to deliver Seisin the Livery and Seisin is good after the death of the Mayor because the Corporation dieth not But if the Lessor by his Deed licence the Lessee for life or for years to alien and the Lessor dieth before the Lessee doth alien yet is death no countermand of the licence but that he may alien for this licence was executed on the part of the lessor as much as may be M. 3. Jac. c. 23. And so if the King doth licence to alien in Mortmain and dieth the Licence may be executed afterward Coke ibidem There is a diversity between authorities created by the party for private uses and an authority created by Law for execution of Iustice As for example if a man deviseth that his two Executors shall sell his land if one of them dyes the Survivor shal not sell it but if he had devised his lands to his Executors to be sold there the Survivor shall sell it coke com f. 181. b. And if a man make a Letter of Attorney to two to do any Act if one of them dye the Survivor shall not do it But if a Venire facias be made to foure Coroners to impanell and return a Iury and one of them dye yet the other shall execute and return the same vide ibidem plura And if there be two joynt Attorneys to return Livery for another and livery of Seisin is made to one of them in the name of both this is void unless the Warrant be joyntly and severally Coke com f. 49. l. vide ibidem plura Mandata licita strictam recipiunt interpretationem sed illicita latam extensam Bacon Max. 60. lawfull Commands receive a strict interpretation but unlawfull large and extensive In committing of lawfull authority to another a man may limit it as strictly as he pleaseth and if the party authorised do transgress his authority though it be in circumstance expressed it shall be in most cases void in the whole act as hath before been demonstrated and distinguished But when a man is the Author and advisor to another to commit any unlawfull act then he shall not excuse himself by circumstances pursued Therefore if I make a Letter of Attorney to I. S. to deliver Livery and Seisin in the capitall Messuage and he doth it in another place of the land or between the hours of two and three and he doth it after or before in these cases the act of the Attorney as to execute the estate is void Or if I express the Seisin to be delivered to I.D. and my Attorney deliver it to I.B. it is void but if my Attorney maketh it to his Attorney it shall be intended for it is a Livery to him in Law But on the other side if I command I. S. to rob I. D. on Shooters-hill and he doth it on Gads-hill or to rob him such a day and he doth it not himself but procureth another to do it or to kill by poyson and he doth it by violence in all these cases he
was incertaine when the Lessee would doe the act to make the Lease to begin and in the other it was incertaine when the coverture would bee dissolved for a lease certainely lymited might begin and determine upon uncertainety well enough Ployd ib. If a man maketh a Lease for twenty one yeares if I. S. live so long this is a good Lease if I. S. so long live yet it is certaine in incertainty for the life of I. S. is incertaine Coke com f. 25. b. It is a Maxime in the Law that no distresses can be taken that are not put into certainty nor can be reduced to any certainty for id certum est quod certum reddi potest as the Lord cannot distraine them which hold their Tenements in Frankalmoine if they will not doe such divine service because it is not put in certaine what service they shall do neither can it bee reduced to a certainty for upon an avowry damages cannot bee recovered for that which neither hath certainty neither can bee reduced to any certainty and yet in some cases there may bee a certainty in uncertainty As a man may hold of his Lord to sheare all the sheep depasturing in his Mannor although the Lord hath sometimes a greater number and sometimes a lesser number yet this is certaine enough the incertainty being referred to the Mannor which is certaine and the Lord may distraine for this incertainty Coke com f. 96. a. Incertainty may bee reduced to a certainty by matter ex post facto Ployd f. 6. a. b. Raingers case As a Lease for yeares rendring for every acre twelve pence though the number of Acres bee not certaine by the Lease yet by admeasurement or other triall may the rent reserved bee certainely knowne by which he may bring his action of debt So if one gives two Acres to one Habendum one for life and the other in fee it is incertaine in which he shall have the fee and which for life yet if after hee make Feoffement of one acre it shall bee said to have fee in the other ab initio so if one sell W. Acre and B. Acre for life the remainder of one of them in fee it is incertaine which Acre hee in the remainder shall have but if hee licence the Tenant for life to cut downe the trees in white Acre then hee shall bee adjudged to have the remainder of that Acre ab initio So 14. H. 8. f. 17. A grant of a terme upon condition that the Grantee shall obtaine the favour of the Lessor and pay so much as I. S. should arbitrate was good when the condition was performed and the second grant adjudged void So 17 E. 4. f 1. in trespasse for corne taken there the Defendant the Plaintiff had bargained agreed that the Defendant should go to the place where it grew and see the corne and if it pleased him upon the sight that then hee might take it paying to the Plaintiff forty pound for every Acre and it was holden a good contract notwithstanding the incertainty and quantity of the Corne and of the grosse sum shall bee paid for it because upon the circumstance the certainty might appeare Ployd ibidem Dyer f 91. b. If I bargaine with you that I will give you for your Land as much as it is reasonably worth and it is referred to the judgement of a third person hee shall ajudge it and then it is good so if I sell trees which then may easily be spared and refer the judgement of the sparing to a third person if hee give judgement of it it is good enough because by him it is reduced to a certainty with the Vendors consent In our law the time the estate the thing and the person not being sufficiently expressed by necessary coherence and relation to matter precedent they are sometimes made certaine enough first for the time if I. S. is bound to mee in twenty pound upon condition that I infeoffe him of B. Acre that then hee will pay mee ten pound if I infeoffe him presently after hee ought to pay the ten pound notwithstanding there is no time limited when it should bee paid for Perkins puts the rule if a condition hath a relation to the Act precedent and no time is limited when it shall bee done it ought to be done when the Act precedent is done Secondy for the thing though it bee put incertainly yet the communication precedent makes it certaine Dier 42. a. where one was bound to warrant I. G. and doth not shew what thing hee should warrant the Law shall make construction that hee should warrant the land of which communication was made Thirdly for the estate though it bee uncertaine yet sometimes it is made certaine by the matter precedent as steward-ship was granted for life and afterwards an annuity was granted for the exercise of that office without declaring what estate hee should have in the annuitie and resolved that he should have the annuity for life because he had the Office for life Coke l. 8. Fourthly for the person the consideration sometimes ascertaines the person and therefore if lands be given to one by deed Habendum sibi una cum filia donatoris in frank marriage this shall enure to both because the feme is causa donationis and by devorse shee shall have the whole Land and shall bee given together to the man for the advancement of the woman Dier 126. a. A man by intendment of Law the Land and the woman deviseth that his lands shall bee sold for the payment of his debts and doth not say by whom they shall be sold by his Executors because they are lyable for the payment of his debts Licet id certum est quod certum reddipotest id tamen magis certum est quod de semetipso est certum Coke l. 9. 47. a. The Patents of the King ought to be extended certainely to the thing of which the Patentee will take advantage as 2 R. 3. 7. If the King grant to me that I shall not be High-Sheriff without shewing of what County it is void for the incertainty Quia concessio per Regem oportet fieri de certitudine but if the grant was that he should not be Sheriff of such a County there such a grant is good Ployd f. 395. a. If a Lease be of the mannor of Sale in Dale which he had by descent of the mother and he had the mannor of Sale by purchase and not by descent of his mother in this case the Lessee shall have it because the mannor of Sale in Dale is enough without further certainty expressed and his saying that he had by descent is not requisit in that it was sufficiently certaine before for it is rather super-abundance then certainty so M. 2. E. 4. f. 27. If one release all his right in white Acre in Dale that he had by descent but had it by purchase there he shall not avoid the release by saying
consisteth in idlenesse for idlenesse is the mother of all vices and as Coke there saith principally in young men who ought in their youth to learne profitable sciences and trades which are profitable to the weale publick of which they may reape the fruites in their old age for jeunesse oisense vilesse disettense if in our youth we be idle in our old age we shall be indigent and for that reason the common Law detesteth all Monopolies which prohibit any one to work in any Lawfull trade and that appeareth in 2. H. 5. b. A Dyer was bound that he shall not use his Diers craft for two yeares and there Hull said that the obligation was against the common Law and that by God if the Plaintiff were here he should goe to prison untill he had made fine to the King and so for the same cause if an husbandman be bound that he shall not till and sow the ground the obligation is against the common Law And therefore the act of 5. Eliz. c. 4. that prohibited any person to use or exercise any craft mistery or occupation unlesse he had been an Apprentice for seven yeares doth not make provision onely to the intent that the artificers may be skilfull but that young men shall not be idle in their youth but trained and brought up in lawfull sciences and trades and so by the same reason the common Law doth not prohibit any person to use many Arts and Misteries at his pleasure for nemo prohibitur plures negotiationes sive Artes exercere untill it was prohibited by the Act of Parliament 37. E. 3. 6. That all Artificers c. are bound every one to one mistery and that none use other mistery but that he hath chosen but because that restraint of free trade was prejudiciall to the weale publick at the next Parliament it was enacted that all people should be so free as they were before that Ordinance by which it appeareth that without Act of Parliament no man can be in any manner restrained to worke in any lawfull trade Non negligentibus sed impotentibus succurrendum Reg. I. C. Vigilantibus non dormientibus jura subveniant Ployd f. 357. b. The Law helpeth and releiveth those are impotent not those are negligent As if you disseise me of my Land and then A. bringeth a Writ of right against you and you joyn the mise upon the meer right and you make default after the mise joyned he shall recover to him and his Heires for ever quit of you and your Heires for ever and if I doe not lay my claime within a yeare a day I am barred for ever for the Law succoureth those that are watchfull and not sleepy so as non-claime by a yeare and a day upon a recovery by default where finall judgement is given was a good Bar by the common Law 5. E. 3.222 by Hor. A descent cast during the Coverture where the wife is disseised barreth her not of her entry after her husbands death but if a feme-sole be disseised and then taketh an husband there a descent during the coverture taketh away her entry for it was her folly to take such an husband that entred not in time Littleton 95. Negligentia semper habet comitem infortunium Coke l. 8. f. 133. a. Sa. Turnors case An Executor of an Administrator ought to execute his office and administereth the goods of the dead lawfully truly and diligently Lawfully in the payment of all dueties debts and legacies in such precedency and order as they ought to be paid by the Law truly to convert nothing to his own use and ought not by any practise or devise to bar or hinder any creditor of his debt but ought truly to execute his office according to the trust reposed in him And diligently as in the case at bar for when the Administrators which had judgement for one hundred pounds for sixty pounds and the Plaintiff offered a release or to acknowledge satisfaction and he deferreth it to the intent that the Judgement shall stand in force by which the Plaintiff shall be defrauded of his due debt and the Administrators to convert the goods of the debt to their private use let the agreement be precedent before the recovery or subsequent since the recovery it is all one as to the creditor who is a third person for he is defrauded as well by the one as the other and the creditor who is a stranger shall loose his debt which is by the Law due to him and if any prejudice accreweth to the Administrators in this case it is in his own default for the Plaintiff would have released to them or acknowledged satisfaction but they defer it to the intent to bar the Plaintiff of his just and true debt and negligence hath allwayes misfortune or ill luck for her companion Ibidem Coke l. 2. f. 26. b. If a creditor upon a commission upon a Statute of Bankrupt either by obstinacy doe refuse or by carelessnesse neglect to come before the Commissioners within the time limited and to crave the benefit of the Act he looseth the benefit thereof for the Law releiveth those which are vigilant and not dormant for otherwise a debt may be concealed or a creditor may absent himselfe and void the proceedings of the Commissioners and every creditor ought to take notice of the commission it being a matter of record Coke l. 4. f. 10. b. in Bevills case it was said that the Act of 32. H. 8. c. 2. by expresse words extendeth onely to actuall possession and seisin and not to releive those which for so long time had neglected to have actuall seisin of their services and namely of suite which ought to be made twice every yeare and it was said that it was crassa supina negligentia which that Law did not intend to releive for as it is commonly said vigilantibus c. Ibidem Coke l. 4. f. 82. b. in Sir Andrew Corbets case who deviseth Lands to R. C. and others to have and to hold to them and the survivor of them untill such time that the summ of eight hundred pounds c. was received out of the issues rents c. for the preferment of his Daughters it was resolved though the Devisee had notice of the devise yet if a stranger had occupied the Land the Devisee ought to take notice at his perill for vigilantibus c. and none by the Law in such case is bound to give him notice as in the case of arbitrement 1. H. 7.5.8 E. 4.1 ibidem And this is the reason of a lapse incurring for want of presentment or of a warranty barring for lack of entry or of descents barring for want of claime and a title to tenant in courtesy is lost for lack of entry and that Statutes of limitation do bar actions One seised of Lands devisable deviseth that his Executors shall sell his Land and distribute the profits for the use of the poore and dyeth If a
The GROUNDS of the LAWES OF ENGLAND Extracted from the Fountaines of all other Learning And digested Methodically into CASES for the Use and Benefit of all PRACTICERS and STVDENTS With a Commixtion of divers scattered Grounds concerning the reasonable Construction of the LAW Major haereditas venit unicuique nostrum a jure legibus quam ab iis a quibus illa bona relicta sunt Nam ut perveniat ad nos fundus testamento alicujus fieri potest ut retineamus quod nostrum factum est sine jure civili fieri non potest Cicero pro Cetinna The Common Law is the best and common Birth-right that the Subject hath for the safeguard and defence not only of Goods Lands and Revenews but of his Wife and Children his body fame and life also Coke Com. f. 142. By M. H. of the Middle-Temple LONDON Printed for H. Twyford T. Dring Jo. Place and W. Place and are to be sold at their Shops in Vine-Court Middle-Temple at the George in Fleetstreet at Furnivals and Grayes-Inne Gates in Holborn 1657. Magno magnae BRITANNIAE HIBERNIAE c. Principi Patri Patriae semper AVGVSTO Illustrissime princeps QUI Hispanorum papicolarum es Horror sicut piorum principum protestantium amor Cujus solum nomen alteros uti de Caesaris hostibus olim dictum somnum capere non sinit Alii vero vestra ope authoritatis scuto tecti muniti aut victores aut incolumes plerumque evadunt Macte virtute esto sententia dia Catonis Accedit etiam praeclara vestra prudentia in administratione turbulentae hujus reipublicae Ex quo enim gubernacula imperii fraena reipublicae in te suscepisti Britannia sub vestro principatu hoc didicit quantum refert gravissimis difficillimis temporibus aliquem reipublicae praeesse Qui sic suo fungitur officio ut bonorum hominum non solum expectationi sed votis satisfacere sciret Cui adjicienda est vestra frugalis aulae vestrae domesticae cura quae non uti Craesi regia magnificè sumptuose est exornata sed sicut platonis domus mundo nitore splendida Cujusque mensa non saliaribus dapibus aut Vitellii patinis est referta sed satis liberalis bene necessariis quidem rebus instructa Ita ut lauta sit sobria omnisque luxus expers vacua nullaque sit familia melius morata aut sanctius instituta quam aula vestra Quid autem memorem Justitiae vestrae solemnia exemplaria quae per totum nostrum orbem diffusa in propatulo sunt sub omnium oculorum ictu Nequeo tamen silentio praeterire gratissimum vestrum nobis opus quod leges nostras antiquas patrias haereditarias Invitis reluctantibus nonnullis innovatoribus stabilire Juramento vestro confirmare dignatus es Ita quod recte appelleris legum nostrarum fulcrum columna In eo aequans Themistoclem in acie qui fortissimus Aristidem in pace qui Justissimus erat unde saniorum omnium sententia constat summum pro merito vestro imperium vestrae Celsitudini Jure deberi Nam naturae lex est omnibus Communis ut deterioribus imperent meliores Dyonis Halicarnassaeus Hor. Sume superbiam Quaesitam meritis Haecque omnia 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sine fuco profiteri non erubesco nec pertimesco quia non est adulatio vel supparasitatio vera asseverare praedicare sed potius pusillanimitas immodesta modestia veritatem tacere celare Licetque summa petit livor eminentia invidia non Carent sit tamen Celsitudini vestrae erectus undique quadratus animus uti semper qui instar cubi nullis fortunae ventis procellis divelli aut prosterni poterit Quod ut faxit summus ille Jupiter Stator Jehova noster Orat obsecrat vester observantissimus fidissimus subditus Mich. Hawke To the Candid and Courteous Gentlemen and Students of the Colledges and Seminaries of the LAWES Originally stiled the INNES of COVRT and CHANCERY IT is the Theoreme of the Prince of Philosophers That every Discourse or Speech standeth and dependeth upon these three Pillars Qui de quo ad quem loquitur The Author the Subject and the Auditor And a Compendious Page of every one of them may not be distastfull nor incongruous to the intended scope of this Codicill In the handling of which the Author deemeth it not inconducent to invert the Order Homeri more 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and to take his Exordium from the subject or matter it self as the more worthy and to place the person of the Author in the arrear as the lesse worthy for the matter it self is more certain evident Et res ipsa loquitur is the the firmest Argument and far surmounting validity of Authority As Teste me ipso or ipse dixit For all Authors do often seem to strive and contend for supremacy Patric l. 2. de princ unius f. 65. and sometimes accuse one another of falsity as Caustrius and Lysymachus accused Ephorus Apollonius and Nicagoras Theopompus Phylostratus Sophocles and Pollio Herodotus Neither have some abstained from Plato whom Aristole though his Schollar perstringeth in many passages whom therefore Plato wittily called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a mad Colt for kicking against his Damme and Master Nay Aristotle himself who for his naturall Reasons is of greatest authority was taunted and opposed by Vives and Charronius Ramus and Mirandulanus and in this latter age by Paradoxicall Gassendus First therefore of the Subject or the Matter subjected which the Philosophers part into the thing considered or the matter handled which they call subjectum materiale or the manner of considering the matter which they call subjectum formale of both which the subject is constituted which is called Adaequatum Now to apply this to our present purpose The matter considered in this Treatise is the grounds of the Lawes of England which in the Volumnes of our Reports and other writings have divers names Et primo de nomine conveniat quia res quidem verbis natura priores sed disceptatione posteriores And first let us agree about the name because things by nature are before words but hy desceptation and discourse words are before them Sometimes they are called Principles as 8 H. 7. 4. It is a Principle An Estate of Frank tenement doth not passe without Livery but this name Originally cometh from the Grecians and in this sence was used by Aristotle in the first of his Physicks Contra negantem principia non est amplius disputandum And sometimes they are called Maximes as 34 H. 16. 33. It is a Maxime in our Law that in every action personall the Non-suite of one shall be the Non-suit of both but this name is borrowed of the Latines and is so used by Boethus in his Logick Boeth Dialect Sce. in Ar. Top. f.
renunciaverit amplius repetere non potest n. f. 139. a. As a Retraxit is a bar of all other actions of the like or inferior nature for he which once renounceth his action can no more renew it It is a generall rule that non-suite before appearance is not peremptory in any case for that a stranger may purchase a writ in the name of him who hath cause of action and regularly a non suit after appearance is not peremptory but that he may commence an action of like nature againe for it may be he hath mistaken something in that action or was not provided of his proofes or mistaken the day or the like But yet for some speciall reasons non-suit in some actions is peremptory as in a quare impedit if the Plaintiff bee non-suit after apparance the Defendant shall make a title and have a Writ to the Bishop and this is peremptory to the Plaintiff and is a good bar in another quare impedit and the reason is because the Defendant had by the judgement of the Court a writ to the Bishop and the incumbent which commeth in by that writ shall never be removed which is a flat barre as to that presentation and for the same law and upon the same reason so it is in the case upon a discontinuance Coke com f. 139. a. vide ibidem plura Actio personalis moritur cum persona a personall action dieth with the person Went. off of executors f. 1. 97. As if a keeper of a Prison suffereth one in execution to escape and dieth no action lyeth against his Executors If Lessee for yeares doth wast and dieth an Action of wast lyeth not against his Executor or Administrator for wast done before that time Coke com f. 53. b. so if the tenant doth wast and he in the reversion dieth the heire shall not have an Action of wast for the wast done in the life of his Ancestor nor the master of an Hospitall or a parson for wâ—st done in the life of the predecessor ibidem The Lessor covenants to pay quit rent during the terme and dieth his Executors shall not pay it because it is a personall covenant in the Lessor onely Dier 114. Yet if there be three copartners and they Lease the land and one of them die and hath issue and the Lessee commit wast and one of them die and hath issue the Aunt and the issue shall joyne in an Action of wast and the issue shall recover one moyety of the Land wasted and the Aunt the other notwithstanding that actio injuriarum moritur cum persona But in favorabilibus magis attenditur quod prodest quam quod nocet in indifferent and favourable things that which profiteth is more respected then that which hurteth Relatio tunc fieri non debet si per eam actus destruatur Reg. I. c. Decius 363. Quando dispositio referri potest ad duas res ita quod secundum relationeÌ„ una vitiatur secunduÌ„ aliaÌ„ utilis sit tunc facienda est relatio ad illam ut valeatdispositio semper ita fiat relatio ut valeat dispositio C. l. 6. f. 76. b. a. A relation then ought not to be when by it an Act is destroyed As in the statutes of 32. and 34. H. 8. concerning Wills whereof is provided that every person having any Mannors Lands c. holden in capite shall have full power c. to dispose by his last will in writing or otherwise by any Act or Acts lawfully executed in his life two parts of the same Mannor c. for the advancement of his wife preferment of his children and payment of his debt or otherwise at his will and pleasure any Law statute c. those words or otherwise at his wil pleasure have reference relation only to the last wil not to the acts executed for otherwise none might have devised two parts but onely for the advancement of his wife and preferment of his children or payment of his debts which is not the intention of the Act but that he may devise two parts to whom he will so that the third descend and it was in vaine to referre those words or otherwise at his will and pleasure to Acts executed for he can do that without any authority given to him by that act And therefore when the disposition may be referred to two things so as according to the relation one of them may be destroyed and according to the other shall be commodious then the relation is to be made to that that the disposition may be of force and alwayes the relation is so to be that the disposition may availe in Sir G. Cursons case So Coke l. 3. f. 28. b. Butler and Bakers case relation is a fiction in law to make a nullity of a thing from the beginning to a certaine intent which in truth had being and the rather for necessities sake ut res magis valeat quam pareat As if a man make a gift in taile to Baron and feme and afterwards grants the reversion of those Lands and since the Baron dies and the feme to have her dower waiveth and disagreeth to the estate taile now in regard of her it is a nullity of the estate from the beginning and to such an intent the Law faineth that the estate was onely made to the baron but as to the grant of the reversion that is a collaterall Act and her refusall shall not have such relation for she may be endowed though that estate stand and so no necessity and therefore without necessity ut res magis valeat the Law will not faine any nullity but in a destruction of a loyall estate vested the law will never make any fiction vide ibidem plura So relation shall make things have been as if as if they never had been 1. H. 7. 16 The husband disagreeth to a Feoffement made by his wife it is void from the beginning so that he may plead ne infeosse pas so 14. H. 8. 10. A devise is that the Executors may sell land c. when they sell all meane charges made by the heire in the interim shall be avoided by relation to the time of the death of the Testator so 14. H. 8 18. I disseise A. to the use of B. the dissiesee releaseth to mee and then B. agreeth with the disseisee this agreement by relation shall be as if he had agreed before the release and so shall defeat it Jurors alien their Lands away between the teste of the Writ of attaint and judgement yet they shall be charged to the King for the estreptment by relation 22. E. 3. 16. Caufe of Assise brought for rescuing a distresse taken for rent and then an Office is found which entitleth the King who seiseth the Land and then an Ouster le maine is sued the Assise is gone for ever because the King shall be said to be in possession at the time of the rescous
upon whose possession no distresse could be made 31. Ass 1. Ployd 281. a b. If one taketh letters of administration of the Ordinary of the goods of one which died intestate and after the Metropolitan committeth the administration to another because the intestate had goods to the value of ten pound in diverse Diocesse there it disproveth the authority of the first administrator and shall make the second Administrator to avoide the act of the first Admistrator for the relation after the probat taketh away all imperfection that before may be alledged and shall over-reach the administration and the authority of the Administrator as the Lord Dier termes it and Keble said in this case W in H. 7. that the second Administrator shall have an Action of trespasse against the first Administrator for taking of the first goods for the first Ordinary which committed the administration had not authority to do it when the intestate had goodes to the value of ten pound in diverse Diocess but the administration and all dependance upon it were utterly disproved by the commission of the second administration vide ibidem plura in Greisbrookes case So 38. H. 6. 7 Goods taken out of the possession of an Executor which refuseth and an administration is committed to I. S. I. S. may have an action of trespasse supposing they were taken out of his possession for he by relation shal be said to be an administrator from the very time of the death of the testaor Relation is a fiction in Law and a fiction in Law is a fained construction when in a similitudinary sort the Law construeth a thing otherwise then it is in truth Finch nomot f. 66. and is of the person or the thing Of the person QVi facit per alium per se ipsum facere videtur Coke com f. 258. a. He that doth any thing by another seemeth to doe it by himselfe As the servant by command of the Master may make claime from the Land for his Master if the servant doth all that which he was commanded and which his Master ought to doe there it is as sufficient as if his master did it himselfe And if the disseisor levy a fine according to the statute with proclamations and a stranger without any command precedent enter in the name of the disseisee to avoide the fine if the disseisee after assent to the said entry of the sad stranger it shall be as sufficient as a command for omnis ratihabitio retro trahitur mandato aequiparatur Reg. 1. C. Every ratification or approving of any thing looketh back and is all one as if a man had give commandement at the first Ployd f. 290. a. Chapmans case If I will by my last will that I. S. alien my Land and he doth so it is my alienation by him and if I give authority to my Bayliff to sell my sheep or other cattle and he doth so it is my sale by him and Ployd 475. b. In Sanders case If I command one to beat another and hee beats him so as he dieth of it I shall be accessary to the murther for my commandement was the foundation of it and my commandement outreacheth to all that which followeth the fact So if I command one to burne an house feloniously in the night and he doth so and the fire thereof burneth another house I shall be accessary to the burning of the other house and if I have a pardon for the one I shall be hanged for the other but if I command one to burne such an house which he well knoweth and he burneth another I shall not be accessary or if I commanded him to rob a Goldsmith going to Sturbridge faire and he breaketh open his house in Cheapeside and stealeth his Plate I shall not be accessary to that burglary because there is no affinity between the fact and my command but if I command one to kill him with poyson and he killeth him with a Sword or to kill one in the field and he killeth him in the city or to kill him such a day and he killeth him another day it is murder in me because the death is the principall matter that hath ensued upon my commandement and the place the instrument and the time and such like are nothing but the manner and forme how he should be slaine and not the substance of the matter and the variance in manner and forme shall not discharge him from being an accessary ibidem So an accessary before the fact is subject to all the contingencies pregnant of the fact if they be pursuances of the same fact as if a man command or councell a man to rob another or beat him grieveously murther ensueth in either case he is accessary to the murther quia in criminalibus praestant accidentia 18. E. 175. If I command one to doe a trespasse I shall be a trespassor or if I consent for there are no accessaries in trespasses N. Max. f. 99. In trespass against A. the indenture is that B. did strike me by A. invitation and well 39. H. 5. 42. If a man have a Baylife or servant who is known for his servant and he send him to faires and markets to buy to sell or do any thing marketable his Master shall be charged with the payment if the thing which is Merchandised comes to his use and so if a man send his boy to Market consideratis considerandis 2. R. 2. det 3. per curiam And if a man maketh another his factor to buy things for him if he buy Marchandises of any the master shall be charged by this contract though the goods come not to his possession because he gave him such power 4. E 2. det 168. by Pigot If a servant borrow or receive mony in his masters name the master shall not be charged unlesse it be done by his masters commandement or come to his use by his consent and it is a rule in the civill Law quod jussu alterius solvitur pro eo est quasi ipfi solutum sit Noy Max. f. 99. A promise made to the wise in consideration of a thing to be performed by the husband if the husband agree and performe the consideration in an action of the case c. he shal declare the assumption made to him Ib. f. 19. An annuity is granted to one untill he be promoted to a benefice by the grantor and his heires in a Writ of annuity he sheweth that the Plaintiff was promoted by his brother at his request and well 35. E. 3. 51. Dier 241. It is no good returne for the Sheriff Mandavit baliivo Itineranti who answereth that he is arrested and made a rescous for it is the arrest of the Sheriff himselfe and if it were a capias ad satisfaciendum or a capeas utlegatum after judgement the Sheriff himselfe shall be charged with the escape unlesse it were by the enemies of the King and he shall have his remedie over against him
shewing any license of alienation to discharge himselfe for the purchase of those Lands Exitus acta probat acta exteriora indicant in teriora animi secreta Coke l. 8. f. 146. b. when entry authority or license is given any one by the Law and he doth amisse he shall be a trespassor from the beginning as the Law giveth authority to any one to enter into a common Hostlary or Taverne to the Lord to distraine to the owner of the soile to distraine for Damage-feasant to him in the reversion to view whether wast be made to the commoner to enter into Land to see his Cattell but if he which entereth into a Taverne doth trespasse as if he import any thing or if the Lord who doth distraine for rent or the owner for Damage-feasant work or kill the distresse or he who entereth to see wast doth breake the house or remaine in it one whole night or if the Commoner cut downe a tree in these cases the Law shall adjudge him to enter to that intent and purpose and because the act which demonstrated it is a Trespasse he shall be accounted a Trespassor from the beginning so if a purveyor take my Cattell by force of commission for the hostle of the King it is lawfull but if he sell them in Market the first taking is tortious 18. H. 6. 19. b. Coke l. 9 f. 59. Lambes case Any one shall be convict of a publication of a Libell if he knowing it to be a Libell write but a copy of it unlesse afterwards he can prove that he delivered it to a Magistrate to examine it Coke Com. f. 100. a. The mesne is to acquit the Tenant of any manner of services that any Lord paramount will have or demand of the Tenant and if the Tenant be distrained without default of the mesne yet if the mesne doth not afterwards put his own beasts into the pound instead of the beasts of the Tenant the distress shall be said to be in his default and the Tenant shall recover his damages and costs vide ibidem plura Destinata tantum pro factis non habentur Dod. E. Lawyer f. 143. Things destinated to an end not being applyed thereunto alter their nature and become of another consideration as if a man cut down my Timber Tree and square it of purpose to make a Beam for an house I who am the true owner may seise the same but if it be laid in the building it may not be seised by the owner although the building be not perfected for now it becometh parcell of the house or building but if a man prepare all materialls for building upon his Land and is ready to build therewith but dyeth before it be erected those materialls shall go unto the Executor or Administrtaor and not unto the Heire who should have had them had they been layen in the buildings and it may not be seised by the owner although the building be not perfected for now it becometh parcel of the house or building but if a man prepare all materials for building upon his Land and is ready to build therewith but dieth before it is erected those materials shall go unto the Executor or Administrator and not unto the Heire who should have had them had they been layen in the building because they were destinata tantum quae profactis non habentur intended onely which are not taken for acts Qui adimit medium dirimit finem Coke Com. f. 161. a. Sometimes the Law respects the beginning and sometimes the end and sometimes the means to the attaining it As to turne a streame is running to a Mill is a disseisin to the Mill it selfe and to disturbe one from entring and manuring his Land is a disseisin of the Land it selfe so rescous and replevin is a disseisin to the Lord because by them the Lord is disturbed from comming to his Rent and so also is enclosure because the Lord cannot breake downe Gates or breake downe the enclosures to take a distresse and all these are disseisins after an actuall seisin had and when the rent is behinde otherwise not any of them Finis sinem litibus imponit Ployd f. 357 a. Many times in our Law the name and denomination of a thing is drawn from the finall cause as a Fine used for the assurance of Land dicitur finis quia finem litibus imponit because it putteth a period and end to suits Dod. E. Lawyer f. 143. and therefore as Ployd f. 357. a. Fines have been of very long antiquity and as Long as any Court of Record hath been and were at the common Law the more stronger assurance because they carry in themselves the end of the Law which is repose for the Law hath no other end but repose for it was ordained to cease contention and to make peace as the Statute of 17. E. 1. sheweth that therefore they were called Fines quia finem litibus debent imponere imponunt and therefore in the commencement of a Fine there is concord and peace haec est finalis concordia and the chiefe cause is by which it maketh peace because it bindeth all strangers unlesse it be those which have defect if they enter not their claime within a yeare and a day and Brown said that a Fine for its haughtinesse and for the peace and repose that it bringeth it may be termed finis Legis fructus Legis exitus Legis effectus Legis the end of the Law the fruit of the Law and the effect of the Law and after the Plea of non-claime of Fines was made no bar by the Statute of 34. E. 3. c. 16. because the people in those troublesome times of Warrs could not attend to know the Fines and make their claimes Fines did lose their force and were in effect but Feoffments of Record which was the occasion of great contention among the Subjects of the Realme whereupon the Statute of 4. H. 7. was enacted to reforme them as by the preamble appeareth by which five years after Proclamations made upon the Fine are given to him that right hath to make his claime or pursue his action whereas the common Law gave him but a yeare and a day and also if a Fine be levyed without Proclamations or without so many as the Statute requireth then the Statute of non-claime doth extend to such a Fine Coke Com. 262. a. by which Statute the antient strength of Fines is renewed and made to be as they were heretofore the finall end and conclusion of all strifes and debates as the Statute phraseth it From the effests EVentus est qui ex causa sequitur dicitur eventus quia ex causa evenit the event of a thing is that which followeth the cause and it is called an event because it cometh from the cause Coke l. 9. f. 81. b. Agnes Gores case Who did secretly put poyson into an electuary which one Martine the Apothecary had made with an intent to
feoffment be made to a man and a woman and their heirs with warranty and they inter marry and after are impleaded and recover in value moyeties shall not be between them for though they were sole when the warranty was made yet at the time when they recovered and had execution they were husband and wife at which time they cannot take by moyeties Ployd 483. Nichols case So if a reversion be granted to a man and a woman and their heires and before attornement they inter-marry and then attornement is made they in this case shall have no moieties No more if a Charter of feoffment be made to a man and a woman with a letter of Attorney to make livery and they inter-marry and then the livery is made secundum formam chartae they shall have no moiety Coke com f. 187. a. Although at the common law a man during the coverture could neither in possession reversion or remainder limit an estate to his wife yet a man now may by the statute o 27. H. 8 Covenant with others to stand seised to the use of his wife or make a feoffment or other conveyance to the use of his wife for by it the estate is executed to such uses for an use is but a trust and confidence which by such a meane may be limited by the husband to the wife but a man cannot covenant with his wife to stand seised to her use because they are one person in Law And if cesty que vie doth devise that his wife shall sell his land and make her Executrix and dyeth and she take another husband she may sell the land to her husband for she doth it in anter droit and her husband shall be in by the devisor Coke com f. 112. a. If a free man marry a woman which is a neife she shall be free for ever although the husband dyeth and she surviveth because they are but one person in law unlesse there be some speciall Act made by the wife afterwards as devorce or cognisance in Court of record F. N. B. f. 78. g. If an english man marry an alien borne she shall be a Denizen for the same reason Abri of Ass by Brooke Demzen Iâ— the husband and wife â—aile goods to one they shall not joyne in an Action of Detinue for it is the bailement of the husband onely and void as to her The husband may have an Action of trespasse for taking away his wife F. n. b. f. 53. b. A man may have an Action at the common law de muliere abducta cum bonis viri if she hath attained to the age of consent and hath actually consented to the marriage because it is not properly a marriage till she doth consent 13. E. 1. c. 35. Yet Brooke 4. 47. E. 3. trespasse f. 420. rather thinketh that it shall be intended a good marriage till she doth disâ—ssent but where the marriage is compleat though the wife is dead or divorced at the time of the Action brought the action is maintainable but the word rapuit must be in the writ as well as abduxit 43. E. 3. and therefore it will not lie against a woman because one woman cannot ravish another 43. E. 3. 23. Fulb. l. 1. f. 79. Hereupon it is that the wife can never answer in any Action without her husband and if upon an Action of trespasse the wife cometh in upon a cepi corpus and the husband doth not appeare she must be set at large without any mainprise till her husband doth appeare but he appearing may answer without her and therefore a protection cast by the husband serveth for the wife also Finch Nomot f. 41. If tenant in taile enfeoff a woman and die and his issue within age taketh her to wife he shall be remitted for he cannot sue a Formedon in this case unlesse he will sue against his wife because by the enter-marriage he is seised in her right ibid. Si mulier nobilis nupserit ignobili desinit esse nobilis Coke l. 6. f. 53. b. and l. 4. f. 118. b. If a noble woman marry an ignoble man she ceaseth to be noble as when a Barronesse marrieth under the degree of a Baron by such marriage her dignity is determined but that is to be understood of a woman hath attained her nobility by marriage of a Duke Countesse or Baron and if such an one marry with one is ignoble she loseth her dignity to which shee hath attained by the marriage with one of nobility but if a woman be noble by descent as a Dutchesse c. though she marry one under the degree of nobility yet her birth-right shall remaine for it is annexed to her blood and it is a Character indelebilis ibidem And if a Dutchesse marry with a Baron of the Realme she remaineth a Dutchesse and loseth not her name Coke com f. 16. b. Vir est caput mulieris Bracton Coke com 1 2. a. The husband is the head of the wife for God saith Ployd f. 305. hath divided reasonable creatures into two sexes male and female and the male is more soveraine and the female more base as Aristotle l. 1. Polit. Mas est praestantior deterior vero faemina and therefore doth the female change her sir name into the name of her husband and also men for the greater part are more reasonable then women and have more discretion to guide things then women have and therefore Aristotle in the same place saith mas ad principatum aptior est natura quam faemina the man is more apt by nature to rule then the woman and as the woman is not so apt to governe in high matters so is shee not in things of a lower degree and therefore saith Bracton l. 2. c. 15. Omnia quae sunt uxoris sunt ipsius viri non habet uxor potestatem sui sed vir all things which are the wifes are the husbands and the wife hath not power of her selfe but her husband for all personall things shee hath are meerly his and at his disposing and as the office of an executor f 210. are so setled in the husband upon the marriage as any other that were his own before so as if goods be given to a Feme-covert and another the joynture is severed and the husband and the other are tenants in common and the executor of the husband shall have all the goods that were given to the wife 21. H. 7. 29. All the reall Chattells of the wife are also the husbands for as Hoberd f. 4. Radfords case though the lease were at the first the wifes and that the husband was possessed in her right so as though he had purchased the Fee-simple the Lease had not been extinct yet by the inter-marriage he had full power to alien it and if he survive the wifâ— he is to enjoy it against her Executors or Administrators vide Ployd 191. But where the wife hath a terme for yeares the husband cannot devise it to another
by his Will or grant a rent-charge out of it for shee hath an estate in it before and at the time of his death which shall prevent the Devisee and shee surviving is remitted to the terme and therefore shall avoide the rent-charge 14. Eliz. Ployd 418 b. If Lessee for yeares granteth his terme to a Feme-covert and another or if a feme-sole and another are Joyn-tenants for years and shee taketh an husband the Joynture is not dissolved but continueth and the Survivor of the feme or the stranger shall have all the terme because the terme is a Chattell reall and the marriage of the feme shall not devest the terme out of the feme but shee had an estate in it as shee had before so that if an estranger oust them the feme ought to joyne with the baron in the suite of ejectione firme and the feme shall have judgement as well as the baron Ployd ibidem So in an action of debt upon arrearages of account against one who was receivor to the feme whilst shee was sole they both must joyne though the Auditors were assigned during the coverture for the very cause of action that is the receipt was in her right 16. E. 4. 8. The husband hath power also to dispose of things in action and his release of an obligation made to the feme or where goods were taken from her whilst shee was sole shall be good against the wife and he dye 87. H. 8. 1. But if he dye without making such a release the Wife shall have an Action upon the Obligation and not the Executors of the husband likewise the wife or her Executor if shee dye shall have those things in action and not the husband but shee may make her husband her Executor and then he shall recover them to her use 39. H. 6. 27. The wife is unable to contract with any without the consent of her husband and upon a Feoffment to a feme covert shee taketh nothing unlesse her husband will agree and where one is bound to enfeoff the husband and wife the husbands refusall is the refusall of them both Finch Nomot f. 44. And where the husband and wife are joynt Purchasers the husband may make a Feoffment and livery upon the Land which shall worke a discontinuance though the wife be in presence upon the Land and will not agree But if the husband and wife bargaine and sell the wives Lands by Indenture and the Vendee grant unto them for the same a yearly rent her acceptance of this rent after her husbands death doth not bar her of the Land although the acceptance be an agreement to the bargaine but the bargaine being but a contract is the bargaine of the husband onely and not of the wife for a wife is sub potestate viri cui invita contradicere non potest and therefore is the Writ cui invita given to the wife by Law for the recovery of her Land after her husbands death being aliened by him and therfore it is that Judges when a woman is to acknowledge any fine of any Lands doe examine her apart from her husband to know whether shee be willing or come to doe it by compulsion of the husband Offi of Ex. f. 210. And upon a joynt purchase of the husband and wife during coverture if the husband alien shee shall recover the whole after her husbands decease unlesse shee acknowledge a Fine and a cui invita is given to the feme by the Statute of Westminster 2. c. 3. upon a recovery by default against baron and feme and by the equity of it a feme divorced shall have a cui ante divortium to recover the Land lost by baron and feme by default before the divorce Ployd f. 58. a. And if Lands be given in Frank-marriage and a divorce had afterwards the feme shall have all the Land ibidem the reason that he there giveth is because the marriages of women and their advancement by it are much favoured in Law as if a woman give Lands to a man causa matrimonij praelocuti and he will not marry her shee shall have a Writ to recover the Land ibidem and Dyer f. 13. A man giveth certaine goods to his Daughter in marriage upon a divorce the feme shal have al the goods so given that are not spent because they were given for her advancement so as it is regularly true In omnibus fere uxori sub potestate viri succurritur Coke l. 9. f. 84. b. In all things almost the Law helpeth the wife because shee is under the power of her husband as if baron and feme as in right of the wife have right to enter into Lands and the Tenant dyeth seised the entry of the husband is taken away upon the heire which is in by descent but if the husband dye the wife or her heires may well enter upon the issue for the laches of her husband shall not turne to the prejudice of the wife or her heires Littl. but otherwise it is if the wrong was done to the feme sole before shee took husband Coke Com. f. 24. a. vide ibidem plura and unlesse it be for the performance of a condition annexed to the estate of Land as if a feme be infeoffed either before or after marriage reserving a rent and for default of non-payment a re-entry in that case the laches of the baron shall dis-inherit the wife for ever ibidem b. Ubi nullam matrimonium ibi nulla dos Bracton Coke com f. 32. a. where there is no marriage there is no dower Ployd f. 375. a. for the marriage of the woman is the principall cause of her dower and though the seisin of the baron and death of the husband are causes sine qua non without which a dower cannot be had yet the procatartique and impulsive cause of the dower of the woman is the paines and burden shee endureth under the power and yoke of matrimony for as Tholosanus Tholosanus Synt. L. 9. c. 11. matrimonium is quasi matris munus a matre potius quam a patre dictum because shee beareth the burden in her wombe and with painfull labour delivereth it and is very indulgent to nourish it and for those reasons as Bracton saith dowers were instituted for a competent livelyhood for the wife during her life to wit propter onus matrimonij ad sustentationem uxoris ad educationem liberorum si vir premoriatur for the burden of matrimony and sustentation of the wife and education of the children if the husband dy before l. 5. c. 22. which Ockam expresseth in a more affectionate terme and calleth her dower praemium pudoris the reward of her chastity and love f. 40. And therfore though it be not necessary that the seisin of the land shal continue during the coverture for notwithstanding the alienation of the husband the wife shall be endowed yet is it necessary the marriage shall continue for if
enrolled enfeoff the King without any consideration the King shall be seised to his owne use as having such prerogative in his person that he shall not be seised to the use of any other 28. H. 8. 7. Dier Bokenghams case by Knightley Cok l. 2. f. 71. b. It is not unjust but equall that the bargain or shall annex such a condition to the State of the land as he pleaseth for cujus est dare ejus est disponere he that hath power to give hath power to dispose ibidem Coke l. 7. f. 6. Calvins case The King by his letters patents or the Parliament by thier votes may grant denizations without limitations or restraint or else limited denizations as to an alien and the heires males of his body 9. E. 4. f. 7. in Bagots case or to an alien for terme of life as to John Fenell 11. H. 6. 3. Or else upon condition whereof I have seen diverse presidents for who hath power to give hath power to dispose ibid. Modus dat domationi Fleta Ployd f. 25. a. The mannor of the gift which the donor limiteth maketh a law to the donee for though in the preamble of the Act of W. 2. there be but three estates limited to wit especiall taile franke-marriage and generall taile yet may the donor make other tailes by his limitation for his will is a law as to the taile and so heires males of the body of the donee and taile to the heires females of the body of the Donee and all other tailes are within the purview of the Act for the will of the donor is the effect of the stature and from it it followeth that the alienation of the donee shall not bind the issues nor the donor And the second wife shall not be endowed neither can the donee charge the land with a rent-charge or other encumbrance neither shall the land be forfeited for felony and all these are included in the first purview to wit that the will of the donor shall be observed and are but consequences and explanations of the first purview vide ibidem plura But if a gift bee repugnant or contrary to law Exception as a gift made upon a condition unlawfull or impossible it is void and of no effect to gain any thing by the making of it in our law As if the condition be to kill a man Ployd f. 34. b. Or if an obligation be made to save one harmeless for killing a man Ibid. f 64. b. these conditions are void So a feoffment made that the feoffee shall not alien the land is void because it is contrary to law for by the law tenant in fee-simple hath power to alien to any man for if such a condition should be good then the condition should oust him of all the power that the law hath given him which is contrary to reason Littleton The like law is upon a devise in fee upon condition that the devisee shall not alien the condition is void And so it is of a grant release or confirmation or any other conveyance whereby a fee-simple doth pass for it is absurd and repugnant to reason that he that hath no possibility to have the land revert to him should restrain his feoffee in fee-simple of all his power to alien And so it is if a man be possessed of a lease for yeares or of an horse or of any other Chattells reall or personall or give or sell his whole interest or property therein upon condition that the Donee or Vendee shall not alien the same the same is void because his whole interest and property is out of him so as hee hath no possibility of a reverter and it is against trade and traffick and bargaining and contracting betweene man and man and against reason that he should oust him of all power given him for regulariter non valei pactum de re mea non alienda a contract or condition that I shall not alien that which is my owne doth not hold and suiquum est liberis hominibus non esse liberam rerum suarum alienationem it is unjust that freemen should not have liberty to alien their owne estates But these are to be understood of conditions annexed to the grant or sale it selfe in respect of the repugnancy and not to any other collaterall thing Coke com f. 223. a. But before the statute of quia emptores terrarum A man might have made a feoffment in fee and added further that if he and his heires did alien without licence that he should pay a fine it had beene good then and then the Lord also might have restrained the alienation of the tenant by condition because the Lord had a possibility of reverter and so it is in the Kings case at this day because he may reserve a tenure to himselfe If A. be seised of black Acre in fee and B. enfeoffeth him of white Acre upon condition that A. shall not alien black Acre the condition is good for the condition is annexed to other land and ousteth not the feoffee of his power to alien the land whereof the feoffment is made and so no repugnancy to the State passed by the feoffment and so it is of gifts or sales of Chattels realls or personalls Coke ibidem But if a feoffment be made upon condition that the feoffee shall not infeoff I. S. c. This is good for he doth not restrain the feoffee of all his power and in this case if the feoffee infeoff I. N. of intent and purpose that he shall infeoff I. S. some hold that this is a breach of the condition for Quando aliquid prohibetur fieri ex directo prohibetur per obliquum for when any thing is forbidden to be done directly it is also forbidden to be done collaterally or obliquely Coke ibidem b. And a gift in taile that is made upon condition that the donee nor his heires shall not alien in fee in taile or for terme of anothers life is good to all those alienations which amount to any discontinuance of the estate taile or is against the statute of W. 2. but as to a recovery the condition is void for that is no discontinuance nor against the said statute Neither is a collaterall warranty or lineall with assets in respect of the recompence restrained by the said statute no more then a common recovery is in respect of the intended recompence Ibidem If a man make a feoffment to Baron and feme in fee upon condition they shall not alien this is good to restraine them by feoffment or alienation by deed because it is tortious but to restraine their alienation by fine is repugnant void because lawfull ibidem Voluntas reputabitur pro facto Bract. the will shall be esteemed for the deed If no place be limited where money is to be paid in the condition of a Bond and the Obligor at or after the day of payment happen in the company of the obligee and offereth
suerum cum averijs Abbot Conventus renounceth all the Common which he hath used to have of his Cattle with the Cattle of the Abbot and Covent and that release of Common was there taken void because he did not shew to whom he renounced the common yet there was a full intent for he had common in the Land of the Abbots and he had intent to release it to him but for the incertainty it was void And a Lease was made to Baron and Feme and the reversion of the Land that the Baron held was granted and it was held void notwithstanding the intent because it missed of the certainty of the particular estate H. 13. E. 3. Fitz. grants 63. And so where there were Lord and tenant of three acres and the Lord granted the signiory which he had out of one Acre it was held void in 17. E. 3. notwithstanding the intent because his intent did not agree with Law and so where a man holdeth of one by Castle garder Homage and Fealty and he granteth to another all his services it was held in 31. E. 1. that the Castle-garder cannot passe because he did not grant such a Castle but reserved it and therefore he who hath not the Castle cannot have the Castle guarder so his intent in granting al the services could not make all to passe because it was not according to Law and so the Law ruleth the intent and the intent not the Law Ployd ibidem in Throckmortons case Coke l. 1. f. 84. b. A man giveth Land to M. and 1. his Sisters and to the heirs of the bodies of them lawfully begotten by which they had a joynt estate for life and severall inheritances and the Donor intending that neither of them should break the Joynture but the Survivor should have all per jus accrescendi added this clause sub hac forma that shee that should longest live should have all the Land but because his intent is contrary to Law for this cause if the Joynture be severed by fine the Survivor shall not have the part so severed by the said clause which he hath inserted of his conceit and his own imagination contrary to Law and reason ibidem But in Wills the intent shall be observed and onely thought of because the Testator had no time to order all things according to Law by presumption but is suddenly made oftentimes and so the diversity Ployd f. 162. b. And therefore Ploy f. 414. a. The intent in devises maketh estates to passe contrary to the rules of the common Law in deeds and other gifts As if I devise Land to one A. for life whereas there is not any such the remainder in fee he in the remainder shall take the Land though there be no estate precedent And 34. E. 3. one had issue a Son and Daughter and deviseth Land devisable to one for life upon condition that if the Son disturbe tenant for life or his Executors of their Administration that then the Land shall remaine to the Daughter and dyeth the Daughter after the death of the tenant for life bringeth a Formedon in remainder against the son alledgeth that the tenant had disturbed the Tenant for life and the Executors and the Tenant traversed it upon it issue joyned and the condition took the fee out of the Son and put in the Daughter by allowance in Law in performance of the intent of the Devisee though the remainder did not vest when the first estate took effect Ployd ibidem Coke com f. 322. a. b. If a man lease Lands devisable for life c. the reversion by his testament in fee c. and dyeth and then the Tenant maketh wast the Devisee shall have a writ of Wast although the Tenant never attorned because the will of the Devisor made by his will shall be performed according to the intent of the Devisor and if the Tenant will never attorne then it shall never be performed and therefore he shall have an action of wast or distraine without Attornement Littleton for it is a maxime of the common Law ultima voluntas testatoris est perimplenda secundum veram intentionem sufam Coke ibidem for if a man devise his Tenements to another by testament Habendum sibi in perpetuum and dyeth and the Devisee entreth he hath a Fee-simple causa qua supra and yet if a feoffment had been made to him by the Devisor in his life of the same Tenements Habendum sibi in perpetuum and livery and seisin upon it made he shall have an estate onely for terme of his life Littleton Ibidem Coke com f. 9. b. Though by the common Law an estate of inheritance may not passe without these words Heires yet in devise it may as if a man devise twenty acres to another and that he shall pay to the Executors for the same ten pound he hath a Fee-simple by the intent of the Devisor albeit it be not the value of the Land 21. E. 3 16. So if a man devise Lands to give or to sell or in feodo simplici or to him or his Assignes for ever in all these cases a Fee simple doth passe by the intent of the Devisor but if the devise be to a man and his Assignes without saying for ever the devisee hath but an estate for life if I devise Land to one sanguini suo it is a Fee simple but if it be semini suo it is an estate tayle ibidem Exception Coke l. 1. f. 85. 86. in Câ—rbets case It was ruled by all the Justices that such an estate which cannot by the rules of the common Law be conveyed by act executed in his life by advice of counsell learned in the Law such an estate cannot be devised by the will of man who is intended in Law to be in ops consilij as if I devise Lands to one by will in perpetuum he hath a fee for such an estate may be conveyed by estate executed but if I devise further that if the Devisee doth such an act that then another shall have his Lands to him and his Heires that is void because such limitation if it was by act executed is void for as Dyer f. 33. pl. 12. A man cannot devise an estate in fee to one and if he doe not such an act his estate shall cease and another have it for when he hath disposed the estate in fee he hath not power in the same will to devise it to another and f. 4. pl. 7. when the intent of man who maketh a testament doth not agree with the Law the intent shall be taken void as if a man devise his Land to H. in fee and that if he dye without heir that M. shall have the Land this devise is void because one Fee-simple cannot depend upon another in law the same law is if the devise be to the Abbot of Saint Peter de W. where the foundation is to the Abbot of St. Paul
upon a false consideration the heire shall not be received to aver a false consideration against his ancestor Dier Ex nudo pacto non oritur actio Ployd 305. a. and 308. b. from a bare contract or promise no action riseth for it is not much argued by the laws of England what diversity is betweene a contract and a promise and a gift for the intent of the law is to have the matter argued not the termes A Nude contract is where a man maketh a bargaine and sale of his goods or lands without any recompence appointed for it As if I say to you I sell you all my lands or all my goods and nothing is assigned that the other shall give or pay for it this is a nude contract and is void in law and the vendee cannot bring an action for them Dr. and Student c. 24. And a nude promise is when a man promiseth to give a man certaine mony at such a day or to do him certaine service and nothing is assigned for them As if I promise to give you twenty pound to make your house anew there you shall have no action against me for the 20 l. because it is a nude promise as it is affirmed by Townsend T. 17. E. 4. Ployd f. 308. b. So if a Carpenter by word covenanteth and undertaketh to make a new house and he doth not and for not making it the Plaintiff bringeth an action of covenant against the Carpenter and it doth not appeare that he had any thing for making of the house it was adjudged in 11 H. 4. f. 33. that the Plaintiff should not take any thing by his writ Ployd 309. a. And if I promise to another to keep his goods safely till such a time and after I refuse to take them no action lieth against me but if I take them and after they be lost or impaired through my negligent keeping an Action lieth Doctor and Stud. c. 24. But otherwise it is if he to whom the promise is made have a charge by reason of the promise which he hath also performed then in that case hee shall have an Action for that thing is promised As if a man give land in Frankal-moine they are bound to make prayers to God for him and in consideration of such prayers he is bound to pay to the cheife Lord all the rents and services issuing out of that land Lit. a. Frankal And in 17. E. 4. 5. It is taken by diverse that if I promise a Surgeon a certaine summe to cure such a poor man or if I promise to a labourer certaine mony to repaire such a way which is in the high way that he shall have an action of debt for it for it is a thing of charity and I merit thankes of them for it and therefore shall not be called Nudum pactum Ployd f. 306. a. If I contract with another that if he will marry my daughter that I will give him 20 l. in this case if he take her to wife he shall have an action of debt for the 20 l. 22. E. l. Assi Pl. 70. by Thorp and yet I have nothing for it and if a man hath no regard to nature it shall be nudum pactum but because my daughter is advanced by it that is a good consideration to me Ployd f. 305. a. So Dr. and Stud. c. 24. f. 104. It is a good promise because he hath quid pro quo the preferement of his Daughter for his money But if a man promise to another 20 l. with his daughter in marriage if he marry the daughter and the money be not paid he shall not have an action of debt or an action of the case at the common law but he must sue for his money in the spirituall Court for here is no good forme of contract F. n. b. f. 44. a. And as Bracton saith matrimonium est principale ejusdem juris id est jurisdictionis eâ—â—e debet accessorium matrimony is the principall and the accessory ought to be of the same jurisdiction Gardiner brought an assumpsit and declared that the Defendant in consideration that he was indebted to the Plaintiff in 10 l. for pasturing and feeding of certaine beasts in the Plaintiffs grounds and for wheat and other Marchandises had and received by the said defendant did assume to pay to the said Plaintiff the debt that he had paid Vpon issue non-assumpsit was found for the Plaintiff and upon a Writ of error in the Exchequor-chamber that there must be some certaine cause of the debt assigned for it is not sufficient to say generally he was indebted for it might be for rents upon leases or for debts upon specialties but it was adjudged certaine enough and required not so much certainty as an action of debt upon a contract Hob. rep f. 7. Wolastone brought an assumpsit against W. and declared that whereas W. promised him 30 l. in consideration that the Plaintiff on the twentieth of August 1610. had given day to the said defendant for the payment of the same money untill the ninth of October following the Defendant did assume to pay him the same ninth day and upon issue non-assumpsit it was found for the Plaintiff and damages given Hob. f. 26. Wolastons case vide ibidem L. brought an assumpsit against B. and declared that whereas the defendant had felloniously slaine one P. M. the defendant afterwards required the Plaintiff to labour and doe his endeavour to obtaine his pardon from the King whereupon the Plaintiff upon the same request did labour c. to obtaine pardon for the said defendant and afterwards fi c. in consideration of the Premisses the defendant did promise to the Plaintiff to give him a hundred pounds and that he had not c. upon non-assumpsit it is found for the Plaintiff 100 l. ibidem f. 147. vide ibid. plura B. bringeth an action of the case against C. executor of Reade and counteth that whereas he had in M. terme 14. Jac. presented an attachment of priviledge against Reade rerurn in H. terme the testator knowing of it in consideration that at his request the Plaintiff would forbeare to prosecute the said writ did promise to pay him 50 l. and then averred c. and after verdict for the Plaintiff and exceptions in arrest of judgement the Court gave sentence Bedwels case vide ibidem plura A promise made for a thing past is void as if I promise one ten pounds because he hath builded me an house an action lyeth not there and if I promise to give another 10 l. in recompence of such a trespass that he hath done him an action lieth not against him the reason is because a contract properly is where a man for his goods shal have by the assent of the other party certaine goods or some other profit at the time of the contract or after but if the thing be promised fot a cause that is past by way of a recompence
the Deed or writing it shall not bind the party that delivered it for it is at the perill of the party to whom the writing is made that the true purport effect of the writing be declared if the party that shall deliver the writing doth require it but if the party who shall deliver the writing doth not require it he shall be bound by the Deed though it shall be contrary to his meaning and it mattereth not though a meere stranger readeth the writing which is well proved by the usuall forme of pleading in such case to wit that he was a Lay-man and not lettered and that the Deed was read to him in other words c. generally without shewing by whom it was read Coke l. 2. Thorowgoods case f. 11. b. If a disseisor dye seised the Disseissee being within age Covert Baron in Prison or out of the Realme it shall be no descent to take away the entry Finch Nomot f. 26. In omnibus fere minori atati succurritur Coke l. 9. 84. In all cases for the most part there is favour shewed to them within age As In a writ of customes and services which is in the nature of a writ of right in which finall judgement shall be given against an infant who is in by descent in 6. H. 3. Tit. page 144. It is adjudged he shall have his age so in a Cessavit against an infant who hath the tenancy by descent he shall have his age though it be upon his own cesser because he cannot know what arrearages he shall tender before judgement and that also is in the nature of a writ of right for if he make not true tender he shall lose his Land 28. E. 3. 99. But in a per quae servitia against an infant who hath the tenancy by descent he shall not have his age because he hath benefit and availe over and above the Premisses and therefore is he called tenant paravaile and it is against reason that when the heire hath profit by the tenancy that he shall not pay annuall rent and it is no mischeife unto him for notwithstanding his Attornement within age he may at his full age disclaime to hold of him or to acknowledge that he holdeth of him by lesser or other services Coke ibidem And regularly it is true that an infant may doe any thing for his own advantage and not to his prejudice as to be an Executor or to purchase without the consent of any other for it is intended his benefit and at his full age he may either agree thereunto or perfect it or without any cause alledged waive or disagree to the purchase and so may his heire if he doth not agree at his full age Coke com f. 2. b. In a writ of mesne the proceedings shall not be stayed for the nonage of the infant because it is not reason that the infant shall be distrained for the services of the mesne during his nonage and shall not have remedy untill he is at full age Coke l. 9. f. 85. a. If an infant make a Feoffment in person if he dye without heire the Land shall not escheate but otherwise it is if it be by letter of Attorny Dyer f. 10. Coke l. 4. f. 125. a. An infant shall sue by procheine amy but defend by guardian Coke com f. 135. a. If an infant buyeth Lands in fee with the mony for which he did sell his own Land yet may he avoid his own alienation Doct. Stud 21. An Execution Elegit and Statute Merchant c. shall not be sued against the heire during his infancy Coke com 290. a. An infant shall avoid matters in faite either within age or of full age but matters of Record as Statutes c. acknowledged by him a fine levied by him or recovery against him by default in a reall action must be avoided by him during his minority to wit Statute by Audita querela and the fine and recovery by a writ of error because they are judiciall acts and taken by a Court or a Judge and therefore the nonage of the party to avoid the same shall be tryed by inspection of Judges and not by the Country and because his nonage must be tryed by inspection this cannot be done at his full age but if that age be inspected by the Judges and recorded that he is within age albeit he come of full age before the reversall yet may it be reversed after his full age Coke com f. 380. b. The Law doth provide for the safety of a mans or womans estate that before the age of twenty one years they cannot alien any Lands Goods or Chattells or bind themselves by deed Coke com f. 171. b. Unlesse it be for necessary meate drink and apparrell necessary physick and such other necessaries and likewise for his good teaching and instruction whereby he may profit himselfe afterwards but it must be pro necâ—ssario vestitu for convenient apparrell and not for Gold lace 11. H 7. and ought to be suitable to his calling Popham Rep. f. 152. But if he bind himselfe in an obligation or other writing with a penalty for the payment of any of these the obligation shall not bind him also all other things of necessity shall bind him as presentation to a benefice for otherwise the lapse should incurr against him Also if an infant be Executor upon payment of any debt due to the Testator he may make an acquittance and in that case a release without payment is void ibidem f. 172. a. If a man inheritor taketh wife who have issue a Son between them and the Father dyeth and the son entreth into the land and endoweth the mother and then the mother alieneth that which she hath in dower to another in fee with warranty and then dyeth and the warranty descendeth to the Son this warranty collaterall shal bar the Son Little but if the Heir be within age at the time of the descent of the warranty he may enter and avoid the estate either within age or at any time after his full age but if he within age at the time of the alienation with warranty and become of full age before the descent of the warranty the warranty shall barr him for ever Coke com f. 380. b. Though no laches shall be adjudged in an infant in case of descent as Littleton saith yet in some other cases laches shall prejudice an infant as laches shall be adjudged in an infant if he present not to a Church within six months for the Law respecteth more the priviledge of the Church that the cure be served then the priviledge of he infant so the publicK repose of the Realme shall be preferred before the priviledge of infancy in the case of a fine where the fine beginneth in the time of the Ancestor As if a fine be levied before the act of non-claime and one of full age had right at the time of the time levied and dyeth within the
flyeth to the wall or to some other unpassable place to save his life and upon the pursuit of the other he killeth him this is man-slaughter in his own defence 3. E. 3.284 From morall Philosophy NExt in order succeeedeth morall Philosophy the exact knowledge of which as Picolonomy Inductio ad libros Civil Philos cap. 6. cannot be comprehended without the precognition of the naturall and therefore hath the precedency for the morall faculty doth instruct men to avoid vices and to cure the maladies of the mind which cannot be compleatly accomplished without the naturall contemplation of the affections of the soul it is called Ethica by the Phylosopher or institutions of manners by which the oblique manners of men are rectified and their Enormities regulated and certainly from such exorbitances of manners originally proceeded the institutions of Lawes and from whence as Doderidge all Laws are in generalty derived for in the primary age which may rather be named the Iron then the golden age when men lived like beasts Dod. English Lawyer f. 250. the one praying on the other according to the censure of the Philosophicall Poet. Quod praedae obtulerat fortuna cuique ferebat Sponte sibi quisque valere vivere doctus What fortune offered for a pray each one Layd claime to it learned to live alone And serve himselfe Then were Laws first excogitated to suppresse the barbarous Savageness of such humane beasts and to reduce them to a more civill association as the Venusine Poet rightly Jura inventa metu injusti fateare necesse est Tempora si fastosque velis evolvere mundi If we revolve the Annalls of mans time From the worlds birth we must confesse and find That Laws were founded for feare of the unjust Seeing then Laws were introduced from the depraved judgements and corrupt manners of men who will not acknowledge that the science by which they are formed and the principles deduced from it are requisite and materiall to the fundamentall knowledge of the Law From which Fountaine our Law doth draw these grounds and maximes Illud possumus quod jure possumus Reg. I.C. We can doe that which by right we can doe for as Boetius potentia non est nisi ad bonum ability and power is not but to good for the power to have liberty to doe wrong is not by such liberty augmented but diminished potentia injuriae est impotentia naturae the power to doe injury is the impotency of nature as to decay and dye is no power but in respect of the privation and diminution in the thing is rather impotency as the Angells and Saints confirmed in glory and cannot sin are more powerfull then man who through his impotency can sin So a King ruling royally and with whom whatsoever shall please him hath the power of a Law and may doe what evill he lift is more impotent then he that doth all according to the rule and square of Law and therefore doth the Law give this rule Illud Rex solum potest quod de jure potest Coke l. 3. 99. f. 123. l. 1. 11. f. 7. Solum Rex hoc non potest quod non potest injuste agere The King onely can doe that which by right he can doe and the King can onely not doe this that he cannot doe any thing unjustly as 4. E. 4. 15. the King can be no disseisor he can be no wrong doer so if the King granterh and releaseth the services to the tenant and his heires that shall not extinct the tenure in all for necessity of the tenure and the King cannot by his charter alter the Law and therefore it shall be expounded as neere to the intention of the King as may be and that is to extinguish all the services but it onely which is incident inseperably to every tenure and that is fealty for it the King cannot doe by Law Coke l. 9. f. 123. a. And Coke l. 11. f. 72. a. The King shall not be exempt by construction of Law out of the generall words of Acts made to suppresse wrong because he is the Fountaine of Justice and common right and the King being Gods Lievtenant cannot doe wrong and with it accordeth 13. E. 4. 8. in the case of Alton woods l. 1. f. 41. So Lands were given to Henry the seventh and the heires males of his body and the question was whether the King in regard that he was not expresly restrained by the Act of 13. E. 3. de donis conditionalibus post prolem masculam sussitatum might alien or no and it was adjudged he could not alien but was restrained by the said Act for it were an hard argument to grant that the Statute which restraineth men to doe wrong and evill shall permit liberty to the King to doe it Ployd f. 246. Signior Barklys case Coke ibidem vide plura Potestas regis juris est non in juriae cum sit author juris non debet inde injuriarum masci occasio unde jura mascuntur Bract. l. 2. The Kings power is of right and not injury and as he is the author of right there ought not from thence to arise occasion of injury from whence rights proceed As if one who intendeth to sell his Land and by fraude conveyed it by deed enrolled to the King to the intent to deceive the purchaser and then he selleth the Land to another for a valuable consideration maketh conveyance accordingly in this case the purchaser shal enjoy the land against the Queen by the Statute of 27. Eliz. c. 4. For though the Queen be not excepted yet the act being general made in suppressing of fraud shall bind the Queen So if tenant in tail be seised of Land the remainder over in tail or in fee and he in the remainder knowing that tenant in tail will alien the Land and by recovery bar his remainder to the intent to deprive the tenant in tail of his birth-right and power that the Law hath given him to bar the remainder and of intent and purpose to deceive the purchaser granteth his reversion to the Queen by deed enrolled and then tenant in tail for a valuable consideration alieneth the Land by common recovery and dyeth without issue the purchaser shall enjoy the Land against the Queene by the Statute of 27. Eliz. the words of which are that every conveyance c. made c. to the intent and of purpose to deceive a purchaser t. shal be deemed onely against such purchaser c. to be utterly void vide ibidem plura in Magdalen Colledges case l. 2. in Cholmlys case f. 51.52 And the King hath a prerogative above all his Subjects that where by fraude or salse suggestion he is deceived that he in that case shall avoid his owne grant jure regio 22. E. 3. 47. in the Earle of Kents case Stanf. pr. regis 84. a. As the King can neither doe himselfe injury nor others And
a fine with proclamations now by the present right he hath five years by the first favant and if after these five years A. doth dye he shall have other five years for the next remainder by the second savant which giveth them as to other persons which have a future right and if after those five yeares B. doth dye he shall have other five years by the other remainder for saith he it is the text of the civil Law when two rights meet together in one person it is all one as if they were in severall persons Ployd ibidem vide ibidem plura in the Lord Zouches case Exception Coke l. 7. Calvins case f. 14. b. This rule holdeth not in personall things that is when two persons are necessarily and inevitably required by Law as in the ease of an alien borne there is for in the case of an alien borne you must of necessity have two severall legiaries to two severall persons and no man will say that now the King of England may make a League with the King of Scotland and that because in the Kings person there concur two distinct Kingdomes it is all one as if they were in severall persons vide ibidem f. 2. Coke l. 4. f. 118. a. Though a Bishop when he is translated to an Arch-Bishoprick or a Baron be created an Earle now he hath both those dignities and as it is commonly sayd when two rights concurr in one person it is all one as if they were in severall persons yet the Act of 21 H. 8. was alwayes construed strictly against Non-residence and Pluralities as a thing much prejudiciall to the service of God and the instruction of his people and therefore within that Act an Arch-Bishop shall have no more Chaplaines then as an Arch-bishop or an Earle then as an Earle for though they have diverse dignities yet is it but one and the same person to whom the attendance and service shall be made and if a Baron be made Knight of the Garter or Warden of the Cinque Ports he shall have but three Chaplaines in all Et sic de similibus quia difficile est ut unus homo vicem duorum sustineat because it is an hard thing for one man to undergoe or sustaine the Place and Office of two persons Coke l. 4. In the case of the death of one within the Verge the Coroner of the houshold of the King and the Coroner of the County shall joyne in the Inquiry and if one be Coroner of both he shall well execute this authority Quilibet potest renunciare juri pro se introducto Coke Comment f. 99. a. Every man may renounce or refuse a Law made or brought in for himselfe as a man seised of lands may at this day give the same to a Parson Bishop c. and their successors in frank-almoigne by the consent of the King and the Lords mediate and immediate of whom the Land is holden for every one may renounce a Law brought in for himselfe and f. 223. b. The Statute of 32. H. 8. giveth power to tenant in tail to make a lease for three lives or twenty one years yet if a man make a gift in tail upon condition that he shall not make a lease for three lives or twenty one years the condition is good for the Statute doth give him power to make such leases which may be restrained by condition and by his own agreement for this power is not incident to the estate but given to him collaterally by the act according to that rule in Law Quilibet potest c. Coke l. 10. f. 101. a. In the Act of 23. H. 6. c. 10. the words upon reasonable sureties of sufficient persons are added for the security of the Sheriff and therefore if he will take but one surety be it at his perill for he shall be amerced if the Defendant appeareth not and for it the Statute doth not make the obligation void in such case for the said branch which prescribeth the forme requireth that the obligation shall be made to the Sheriff himselfe c. by the name of their office and that the prisoners shall appeare in which clause no mention is made of the sureties so as the intent of the Act was that for that it was at the perill of the Sheriff to leave it to his discretion to take one or more for his indemnity and peradventure it may be better for him sometimes to take one that is sufficient then two others and though the sureties or surety have not sufficient within the same County as the Statute mentioneth yet the obligation is good enough for those words of the Act as to that point are more for counsell and direction of the Sheriff then for precept and constraint to him and that for the safety of the Sheriff for if the Defendant cannot find two sufficient sureties having sufficient within the same County the Sheriff is not bound to let him to bail and this resolution agreeth with the ancient rule to wit Quilibet potest c. An Orphant in London exhibited a bill in the Court of request against another for discovery of part of his estate Phesant prayed a prohibition upon the custome of London but it was resolved that he might sue in what Court he would and wave his priviledge there 19. C. B. R. But this case extendeth not to any thing that is against the Common-wealth or common right Coke com f. 166. a. Summum jus summa injuria Ployd 160. b. The rigor of the Law is the extremity of injury if a man make a lease of a messuage so as he may make his profit of his houses there within he cannot abate the houses or make wast of them by the opinion of the book H. 17. E. 3. f. 7. for the intent was not such though that the words seem otherwise and sayd to pursue the words is Summum jus which the Judges ought not to doe but ought rather to pursue the intent And for the same reason the Executors of Tenant for life shall have reasonable time to remove his goods after his decease and a man shall have reasonable time wherein he shall purchase a Writ of Journys accompt Finch Nomot Jus descendit non terra 20 H. 6. 5. The right descended and not the land and Coke Inst f. 345. a. b. There is a right which includeth an estate in esse in Conveyances which he in reversion and remainder hath and hath jus in re and may be granted to a stranger with attornement or released to him in possession as if Tenant in fee-sample maketh a Lease for yeares and releaseth all his right in the Land to the Lessee and his heires the whole estate in Fee-simple passeth and also the release to him in possession with the reservation of a rent is good and there is another right which is called a bare meere and naked right and jus adrem when an estate is turned to a right
by discontinuance disseisin abatement c. and of this right is the saying to be understood that the right descendeth and not the Land which may be released to him in possession and this right is also called jus proprietatis as if a man be disseised of an Acre of Land the disseisee hath jus proprietatis and the Disseisor hath jus possessionis and if the Disseisee release to the Disseisor he hath jus proprietatis possessionis Coke com 266. a. but the reservation of a Rent upon such a release is voyd as if the disseisee release to the disseisor of Land reserving a rent the reservation is voyd Coke com 144. b. Neither can a bare right a right of entry or a thing in action be granted or transferred to a stranger by the ancient maxime of the Common Law Coke com f. 166. for that thereby is avoyded great oppression injury and injustice but if a bare right happen to be forfeited to the King he may grant the same by his Prerogative Frustra est potentia quae nunquam venit in actum Vaine is the possibility which never commeth into act Coke l. 2. f. 501. There is jus proprietatis possessionis possibilitatis and the right of possibility which dependeth upon the death of a man hath a necessary and common intendment to wit necessary in regard that all the issues of Adam must dye for statutum est omnibus hominibus semel mori and common because the death may happen at such a time that the contingency may take effect and this necessary and common possibility is called potentia propinqua which may come into act and is not therefore vaine or voyd in Law as in 15 H. 7. 10. If Lands be given to a marryed man and a marryed woman and to the heires of their two bodies ingendred this is a good estate in tail for it is of necessity that death shall ensue and in common possibility that one shall dye before the other so as the marryage may ensue but in the same case there shall not be possibility upon possibility and therefore if land be given to one man and two women there the Law shall not intend that first he shall marry one and then that shee that he shall marry shall dye and that he shall espouse the other and therefore in this case they have severall inheritances at the beginning as if Land be given to two barons and their femes and the heires of their bodies engendred in this case the Law shall not expect second marriages and therefore in this case they shall have joynt estates for life and one baron and feme one moyety in tail in common with the other baron and feme of the other moyety and so severall inheritances and with it accordeth 24. E. 3. 29. for otherwise there should be possibility upon possibility and if a man give Land to baron and feme there is an apparent possibility that they shall have issue but if after they be divorced causa praecontractus so as the possibility is dissolved the Law shall never expect the second marriage for by the divorce they have but an estate of Frank-tenement 4. H. 7. 16. 17. And a woman may enfeoff a married man causa matrimonij prae locuti for it is of necessity that death shall ensue and in common possibility that the Feme of the Feoffee shall dye before the Feoffee So in the common case of a lease for life the remainder to the right heires of I. S. the remainder is good for the necessary and common intendement vide ibidem plura in Lampets case Coke l. 10. f. 50. b. For the Law respecteth the right of possibility and will have nothing to be void that by possibility may be good As a mesnalty is given in tail reserving a rent this is good for the tenancy may escheate to the donee and then the doner shall distraine for all the arrearages 1. H. 4. 2. A man hath issue a daughter and leaveth his wife privement enseint the wife may detaine the Charters of her husbands Lands from the Daughter for the possibility it may be a Son shee goeth withall 41. E. 3. 21. b. But if A. be indebted to B. in two hundred pounds and delivereth goods to him to sell to pay his debt in the best manner he can and he is proferred two hundred pounds for them and refuseth and after selleth them for an hundred pounds A. shall answer the residue of the debt notwithstanding this possibility 18. E. 4. 5. But the possibility must be propinque and a common possibility as death or dying without issue or coverture or the like but if it be a remote possibility the Law doth judge it vaine because it shall not be intended by common intendement to happen as a remainder to a corporation which is not at the time of the limitation and remainder is void though such a corporation was after erected during the particular estate for that was potentia remota 9. H. 6. 24. For as Ployd f. 345. a. b. It is a principle in Law that all gifts be it by devise or otherwise they ought to have a donee in esse and not in posse who hath capacity to take them given when it ought to vest as devise of Lands in fee and so of goods if the devise dye before the devisor neither his Heire or Executor shall gaine any thing by this Will vide ibidem plura in Brets case So if a lease be made for life the remainder to the right heires of I. S. if at the limitation of the remainder there be not any such I. S. but during the life of tenant for life I. S. is borne and dyeth his heire shall never take as it is agreed in 2. H. 7. 13. And so in 11. E. 3. 46. the case was that upon a fine levied to R. he granted and rendred the tenements to one I. and F. his wife for their lives the remainder to G. the Son of I. in tail the remainder to the right heires of I. and at the time levied I. had not any son named G. but after he had issue named G. and in praecipe against F. it was adjudged that G. should not take the remainder in tail because he was not borne at the time of the fine levied but long after by which another who was right heire of I. S. was received for when I. had not any son named G. at the time of the fine levied the law doth not expect that he shal have a Son named G. after for that is potentia remota a remote possibility But if the remainder had been limited by a generall name as to the right heirs of I. or primogenito filio such a remainder might have been good for the common possibility But if a remainder be contrary to Law the Law shall never adjudge a grant good by reason of a possibility or expectation of a thing which is contrary to Law for that is potentia
remotissime vana which by the intendement of the Law never cometh into act Coke l. 2. f. 5. 2. n. b. in Sir Hugh Chomleys case vide ibidem plura And hereby the way may pertinently be observed that a possibility cannot be released as if before judgement the Plaintiff in an action of debt releaseth to the baile in the Kings Bench all demands and after judgement is given this shall not bar thee to have execution against the baile because at the time of the release he had but a meere possibility and neither jus in re or jus ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute release to the Conusor all his right in the Land yet afterward he may sue execution for he hath no right to the Land till execution but onely aâ— possibility and so have I known it adjudged Coke com f. 265. b. So if A. grant to B. that if he doe such an act he shall have an annuity of twenty pounds during his life before the Act done he cannot release the annuity Coke l. 1. in Albanys case Lex semper dabit remedium the law so favoreth right that it will suffer things against the principles of Law rather then a man to be without his remedy As a man who is outlawed may bring an action to reverse it an outlawry there is no Plea 4. H. 7. 40. The Tenant shall have a replevin against the Lord that did wrongfully distraine though the beasts be come back to himself because he can have no action of trespasse against him for that prisall and shall recover damages for the tortious prisall F. n. b. f. 69. H. A man after judgement is passed against him shall plead against the King a Charter of pardon or any such thing done in the meane betwixt the verdict and the judgement because against the King he can have no Audita querela 11. H. 7.10 otherwise it is against a common person And therefore is it a principle in Law cuicumque aliquis quid concedit concedere videtur id sine quo res ipsa esse non potest Coke l. 11. f. 52. a. Which Ploydon thus expresseth that it is held as a maxime in 2. R. 2. in trespasse that if any man hath interest to any thing by the grant and assent of another and the party who hath such interest cannot have the principall thing without doing the other thing that he may doe the said other thing and justify it because it is a meanes to come to his profit for there it is holden That if one grant to me all his Trees growing in his Woods I may cut them down and carry them through all his Land and though his Grasse be spoiled with the carriage he shall not have a Writ of trespasse of it for Trees are such things that if they be not carryed by Carts he cannot have them nor make his profit of them But if one sell all his Fish in his Pond and the Vendee dig a trench so as the water may run out that by such meanes he may take the Fish an action of trespasse will lye against the Vendee because he might take the Fish by Nets or other Engines but if there had been no other meanes to take them it had been otherwise and to come to the banks to fish he may well justify it for without it he cannot take them by any meanes so as a man shall alwayes justify the necessary circumstance where he hath title to the principall thing Ployd f. 15. 16. a. vide ibidem plura in Renigers case So when a Lessor in the Lease except the Trees and after hath an intention to sell them the Law giveth to him and to those who will buy them power as incident to the exception to enter and shew the Trees to those who will have them for without entry they cannot view and without view they cannot buy Coke l. 11. f 52. in Lisords case So 19. H. 6.29 A man seised of a mese in a Burrough c. devisable deviseth it to his wife in taile and that if his wife dye without issue that his Executor may sell it and it dispose for his soule in this case the Executor may by the Law enter into the house to see whether it be well repaired or no to the intent to know at what valew he may sell the reversion And the Law giveth power to him who will repaire a Bridge to enter in the Land and to him who hath a Conduit within the Land of another to enter into the Land for it to mend as cause shall require as it is resolved in 9. E. 4.35 Coke ibidem vide plura And Coke l. 5. f. 12. a. If a man hath Mines hidden within his Land and leaseth his Lands and all his Mines in it there the Lessor may dig for them for quando aliquis quid concedit c. and this accordeth with 9. E. 4.8 that if a man lease his Land to another in which there is a Mine to wit an hidden Mine he cannot dig for it and if he doe it is wast but if he lease his Lands and all the Mines in it it is otherwise for the reason aforesaid vide ibidem plura in Saunders case If tenant at will soweth Corne on the ground and the Lessor out him he shall have free entry egresse and regresse to carry it away for when the Law giveth any thing to any one it giveth implicitly whatsoever is necessary for the taking and enjoying of the same and the Law driveth him not to an action for the Corne but giveth him a speedy remedy to enter into the Land and to take and carry it away and compelleth not him to carry it at one time or to carry it before it be ready to be carryed and if the Lessee be disturbed of this way the Law doth give unto him he shal have his action upon the case and recover his damages for whensoever the Law giveth any thing it giveth a remedy for the same Coke com f. 56. a. If there be Lord Mesne and Tenant and the Lord purchaseth the tenancy in fee the mesnalty is extinct but whereas the tenant held of the meane by five shillings and the mesne of the Lord by twelve pence so as he hath more in advantage by foure shillings he shall have the foure shillings as a rent-seck yearly of the Lord and yet he shall distraine for it for seeing the mesnalty is extinct the Law reserveth the distresse to the rent for quando lex aliquid concedit c. And therefore if a man maketh a Lease for life reserving a rent and bindeth himselfe in a Statute and hath the rent extended and delivered unto him he shall distraine for the rent because it cometh to him by course of Law Multa constituuntur in lege ne curia Domini Regis deficeret in Justitia
tenant of the Land to be summoned whereas he was not summoned and the tenant looseth by default upon the grand Cape returned the tenant may have a writ of deceit against the recoverer and against the Sheriff for his false returne F. N. B. 97. C. and may defeate the judgement and no damages shall be recovered against the Sheriff in such case onely he shall be fined 5. E. 4 4â— And if he dye his heire may have an action of deceite and restitution of the Land 8. H. 6.5 If a man bargaine with another and assume upon consideration to enfeoff him of ceraine Land and he enfeoffeth another he to whom the assumpsit was made may have an action of deceite or an action upon the case at his pleasure 3. H. 7.14 If one selleth to another a horse which he knoweth to have a secret disease in his body or selleth Corne which is full of gravell an action of deceite lyeth 20. H. 6.36 without warranty but F.N.B. 94. C. is of the contrary opinion If the Sheriff arrest the body by a Capias ad respondendum and returneth not the Writ the party shall have an action of false imprisonment Kell way f. 3. b. The Law ordaineth that he who will be sure of his goods shall buy them in Market overt and that sale shall bind all strangers as well as vendors and yet it is agreed in 33. H. 6. That sale in open Market shall not bind him who hath right to the goods if the sale be by fraud or the Vendee hath notice that the property of the goods appertaineth to another So the Law hath ordained the Court of the common Pleas as Market-overt for the assurances of Lands by fine so as he that will be assured of Land not onely against the Vendor but against all strangers it is good for him to passe it in this Market-overt by fine yet Covin and deceite shall avoid it overt by fine yet Covin and deceite shall avoid it 〈…〉 a Feoffment by Covin which amounteth to a wrong and disseisin Fine levyed by him who is particeps criminis and who had not nor pretended to have any right to the land shall not be a bar to the Lessor Coke l. 3. f. 78. Fermors Case A resignation made by an Abbot by covin shall not abate the Writ 4 E. 2. 22. A covenous Conveyance that assets shall not descend is not of force 34 E. 3. 19. 19 E. 2. 3. And 17 E. 3.59 That an estate made to the King and Letters patents granted over and all it by covin between him that granted to the King and the Patentee to make an evasion out of the Statute of Mortmaine shall not bind but shall be repealed A presentation obtained by fraud and deceit is voyd Dyer 339. b. Letters of administration obtained by fraud and covin are voyd and shall not repeale the former administration Dyer 339. a. vide Dyer 295. many Cases there put concerning covin If I sell to one cloath and warrant it to be of such a length and it is not of such a length the buyer may have an action of the case against me by vertue of the warranty although the warranty be by word and not written but if the warranty be made at some other time after the bargaine he may not have a Writ of deceit unlesse it be made by writing F. N. B. 98. k. If a man sell to one Seeds and warranteth them to be of another Countrey if they be not a Writ of deceit lyeth but if he warrant that the Horse which he selleth should go fifty miles in a day or that the Seeds shall grow it is otherwise And a Writ of deceit lyeth for selling of corrupt Victuall without warranty but not for selling of rotten Sheep though it be with warranty but to warrant a thing which is evident to sense as to be black which is blew is voyd unlesse the buyer be blind or the thing which is bought be absent 11 E. 4 7. 3 H. 4. 1. If I sell one certaine Pipes of Wine and warrant them to be good and they be corrupt the Vendee may have an action of the case against the Vendor F.N.B. 99. b. Yet according to the opinion of some an action will lye without warranty 7 H. 4. 14. But Master Fitzherbert saith that there ought to be a warranty and his taste ought to be his judge in such case and where it is with warranty the Writ must say that the Defendant at the time of the warranty made knew that the Wine which he sold was corrupt A Writ of deceit was brought for selling a certain quantity of Wooll and warranting it to be fifty sacks whereas it wanted of that measure the Defendant pleaded in bar that it was weighed before the sale and the servants of the Plaintiffe being his Factors did accept of it and carryed it beyond the Sea whereupon the Plaintiff demurred 13 H. 4. 1. Semper qui dolo fecit quominus haberet pro eo habendus est ac si habet Reg. J. C. Alwayes whosoever shall give or grant any thing by fraud whereby he may seem not to have it he is to be esteemed as if he hath it And therefore if a man by fraud make a Deed of gift of all his goods to one of his Creditors to deceive the rest the gift by the Statute of 13 Eliz. is voyd Twins case l. 3. f. 81 quod vide where you shall finde the signes and marks of fraud accurately and fully discovered And Coke l. 5. f. 60. a. b. debt against the heire upon an obligation the Defendant pleaded Riens per descent the Plaintiff replyed that he had Assets in D. c. and the Plaintiff giveth in evidence that the father dyed seised of lands in fee the Defendant sayd that he aliened before the Writ the Plaintif averred by covin and proved that it was done by fraud to defraud the Plaintiff and therefore it was resolved to be voyd by the Statute of 13 Eliz. c. 5. and that the fraud might be wel given in evidence because the Statute saith that the estate as to the Creditors shall be voyd and therefore shall be taken by favourable interpretation for to suppresse fraud and that it shall be mischeivous to the Creditors and increase maintenance and covin if the Plaintif should be driven to plead that the Feoffment was by fraud because it is commâ—nly hatched in arbore cava and so artificially covered and concealed that the party grieved hath no meanes to find and know it and therefore jâ—dgment was given for the Plaintiff viâ—â—e ibidem And Burrels case l. 6. f. 730. a. and l. 8. f 133. in Turners case So Hobart f. 72. Humbertons Case Humberton recovered a debt against T H. and dyed and upon a Scire facias against the Ter tenants the Sheriff returned J. H. Tenant of an house that was his at the time of the judgement and J. H. came in and pleaded that T. H.
enfeoffed him long before the judgment in fee absque hoc that he was seised at the time of the judgement or any time after whereupon issue was taken and the Jury found the Feoffment and further sayd That it was made by covin to defraud the Plaintiff and other Creditors and it was judged for the Plaintif vide ibidem plura and fol. 166. Fraus praesumitur si insolitae clausulae apponantur Reg. J. C. and Coke l. 3. f. 81. Clausulae insuetae semper inducunt suspicionem As there in Twins case A Deed of gift was in part adjudged fraudulent because an unusuall clause was inserted in it and for that the Deed contained that the gift was made honestly truely and bona fide vide ibidem plura Dona clandestina sunt semper suspiciosa Coke l. 3. f. 81. Gifts in secret are alwayes subject to the suspition of fraud which there in Twins Case was one of the reasons alledged to prove a Deed of gift fraudulent to wit that it was made in secret And so in Burrels case l. 6. f. 72. the assignment of a Lease was taken to be fraudulent because it was delivered in a secret manner to a person of meane quality And for the same reason by livery and seisin in one County the Lands in another County will not passe Noys Max f. 3. Jus fraus nunquam cohabitant simul Coke l. 10 f. 49. a. Right and fraud never cohabit or dwell together As a Recovery cannot be sayd to be by collusion where tenant in taile is in the Recovery whether he be tenant in Deed or tenant in Law as a Vouchee For the Law hath made all the reversions and remainders as incidents to his estate subject to his pleasure and he hath right and power to bar them all ibidem And Coke l. 8 f 132 b. Covin cannot be alledged in doing of a lawfull act As in a Writ of Dower against a disseisor if the Tenant plead in abatement of the Writ entry by the disseisee the demandant shall not be received to aver the entry to be by covin to abate the writ because the entry is congeable and lawfull and mixed with no wrong as it is holden in 15. E. 4. f. 4. and if a disseisor or an abator endow a feme who hath title of dower it is good because it is a lawfull act Coke l. 5. f. 30. b. Fraus meretur fraudem Ployd f. 100. and the Poet Fraus est concessa repellere fraudâ—m Fraud and subtilty deserveth fraud and subtilty and it is a lawfull deceit to repell a deceit As in 19 E. 4. f. 27. In appeale of many who pleaded not guilty a Venire facias was awarded against them all and the Court perceiving that the prisoners were in opinion to sever in the challenge of the whole pannell of subtilty to stay the tryall at that time and that every prisoner would challenge as many as they might without danger to wit twenty and that every of them shall have his entire number of twenty so that one shall not be excluded of his number by the challenge of the other and that there was but a small number of men of sufficiency then in the City to be sworne so as by that subtilty the tryall should be stayed for the present The Court agreed that the first pannell and the Tales should be divided and made severall for every one of the prisoners And accordingly said to the prisoners We perceive your subtilty well enough which deserveth little favour of the Court and therefore tell us whether you will agree in your challenges for if you will not the Clarke shall sever the pannell and then they all agreed in their challenges and after the inquest was full evidence was given and there found and one subtilty prevented and repelled by another And this fraud by the Canonists is called Benus dolus of which they have this rule Frangenti fidem fides frangetur eidem To him who breaks his faith no faith is to be shewne And instance in the example of Salomon who did use such cunning betweene the two Harlots in searching out who was the true and naturall Mother of the childe Fulb. 2. l. f. 23. Vendens eandem rem duobus falsarius est Reg. I.C. Coke l. 1. f. 45. a. A man selling the same thing to two is a falfe dealer and therefore in the grant of the King it is dishonourable for him to grant the same possession to one that he or his Progenitors had granted to another for he that selleth the same thing to two persons is a deceiver Fraudis interpretatio non semper ex mente duntaxat sed ex consilio quoque desideratur Reg. I. C. Dolus circuitu non tollitur Coke l. 11. f. 74. a. nec purgatur Bacon Max. f. 3. The interpretation of fraude is not allwayes to be gathered out of the mind but also from the councell and consent and crafty dealing and deceite is not taken away nor purged by the circuity of shifting it from one to another and though covenous acts be conveyed through many hands and mediations yet the Law taketh hold of the corrupt beginning and proceeding As if I make a Feoffment of Lands held in Knights service to I. S. upon condition that within a certaine time he shall enfeoff I.D. which Feoffment of I. D. shall be to the use of the wife of the first feoffor for her joynture c. this Feoffment is within the Statute of 32. H. 8. Bacon ibidem So if one who hath an intention to sell his Land by fraud conveyeth it by deed enrolled to the Queen with an intent to deceive the purchasor and after selleth that Land to another for a valuable consideration and maketh a conveyance accordingly in this case the purchasor shall enjoy the Land against the Queene by the Statute of 27. Eliz. c. 4. For though the Queene be not excepted yet the act being generall and made for the suppression of fraud shâ—ll bind the Queen and whosoever maketh the Queen who is the Fountaine of Justice to be an Instrument of covin and fraud and upon it obtaineth Letters Patents such Letters Patents are void or if the Queen be indeavored to take away another mans right and to that end a man obtaineth Letters Patents they shall be repealed though such covin and fraud be not contained in the grant made to the Queen but appeareth onely by averrement dehors for fraud and deceite is not taken away or diminished by the subtility of alienations Coke ibidem in Magdalens Colledge case Non facies malum ut inde fiat bonum it is the Law of God thou shall not doe evill that good may come thereof Coke l. 5. f. 30. b. lib. 11. f 7. 4 a. What hath been said of truth and falsity may be said of good and evill and are so semblable that an apparent good is often mistaken for that which is reall Jun. s 14. Fallit enim vitium
stranger tendreth them mony for the Land and they intending to sell it more deere defer the sale for two yeares and take the profits themselves the heire for the laches and long delay may enter and put them out of the Land 38. Ass Pl. 3. 39. Ass Pl. 3. A man indebted by specialty or upon an account determined tendreth the mony to the Debtee after the day in which it was due and payable and it is refused and after mony is embased it seemeth to many that the debtor shall beare the losse although he had made tender at the very day of payment because he must say vncor prist Dyer f. 83. Pl. 76. Caveat Emptor Coke Com. f. 102. a. Let the the buyer be vigilant and wary what he buyeth for though by the Civill Law every man is bound to warrant the thing that he selleth and conveyeth yet the Common Law bindeth him nor unlesse there be a warranty either in Deed or in Law Ibi. Coke l. 4. f. 26. a. A Copy-holder who is out of possession ought not to sell his Land untill he hath gained the possession and if any one will purchase any title he is not to be favored but in such case Caveat Emptor let the buyer take heed for if any one hath a pretended right and title to Copy-hold Land bargaine and sell it to another it is within the Statute of 32. H. 8. c. 5. vide ibidem plura If I take an horse of another mans and sell him and the owner taketh him againe I may have an action of debt for the mony for the bargaine was perfect by the delivery of the horse Caveat Emptor Nay Max f. 94. If I sell my Horse to another man for ten hundred pounds who taketh his horse againe I shall have all the mony Ibidem f. 95. Qui timent caveant vitent Offi. of Exe. 251. They who feare are wary to shun dangers as an Executors office is dangerous and therefore ought to feare what encombrances fall on him and to keep goods to pay all debts if any should be concealed Non temere credere nervus est sapientiae Coke l. 5. f. 114. b. Not hastely to beleive is the sinew of wisdome and therefore the Law hath appointed the last time in the day to pay mony upon a condition that both parties may certainly meet together which is founded on the experience of the sages least any of the parties should be constrained to make a Letter of Attorny or repose confidence or trust in any other to pay it for him when he will doe it for himselfe And it is wisdome not rashly to trust any Caveat actor Reg. I. C. Let the actor beware what he doth One entreth into Bond to A. that he and A. shall stand to the Arbitrement of I. S. If A. refuse he him-himselfe shall take the forfeiture of the Bond. If a man have a Chappell which is his donation by Letters Patents and he presenteth me his clerk to the Ordinary he shal not make collation afterwards If a Parson impropriate presenteth one to a Church it maketh it disappropriate If he who holdeth his Land by homage and fealty taketh his Land of the King by office found that he holdeth it by forty shillings per annum he shall pay the rent hereafter Abundans cautela non nocet Coke l. 11 f. 6. b. An abundance of circumspection doth not hurt vide ibi Qui sentit onus sentire debet commodum Coke l. 1. f. 99. a. He who beareth the burden and taketh the paines ought to receive the profit as if a Feoffment be upon condition that if the Feoffor or his Heirs pay the sum of 20 l. or to doe any act before a certain day that they shall re-enter in this case if the father dye before the day of paymenr and the daughter for the safe-gard of the inheritance pay the mony or satisfieth the condition in this case the Son after borne shall not devest it for if the daughter had not performed the condition the Land had been utterly lost and therefore in this case a good argument may be made that the daughter shall detaine the Land for Qui sentit onus sentire debet Commodum ibidem vide Hobart Rrep fo 4. in Youngs and Radfords case Ployd f. 514. Trevilian was Tenant in tail of Tenements and he being only seised of such an estate a common recovery was had against him and Avice his wife who vouched over according to the course of common recoveries and it was found that the wife had nothing in the Tenements the husband dyeth the wife shall have nothing of the intended recompence in the case because she had nothing in the Tenements and so could lose nothing If Tenant for life or in Dower do devise the Corn growing on the ground upon the land at the time of their death this is a good Devise and he in the reversion shall not have it 4 H. 3. Devise 26. And the Statute of Merton which saith Omnes viduae possunt legare sua blada is but an affirmation of the common Law which was used in the time of H. 3. 19 H. 6. 6. A man seised of land in see in right of his wife leaseth the land to a stranger and the Lessee soweth the land and after the wife dyeth the Corn being not ripe the Lessee may devise the corn and yet his estate is determined 7 E. 3. 67. A man seised of land in the right of his wife and soweth it and deviseth the Corn growing on the ground and dyeth before it is severed the Devisee shall have it and not the wife 7. Ass pl. 19. One seised of lands in fee hath Issue a Daughter and dyeth his wife Privement Ensaint with a Son the Daughter entereth and soweth the land and before the severance a Son is born and his next friend entereth yet the Daughter may devise the Corn growing on the land If a Mannor be put in execution upon a Statute-merchant and the Conusee sow the land he may well devise the Corn growing on the ground Perkins f. 100. vide ibidem plura Qui sentit commodum sentire debet onus Cok. l. 5. f. 24. He that feeleth or reapeth the profit must bear the burthen and the charges A man leaseth an house by Indenture for years and the Lessee covenanteth for him and his Executors to repaire the house at all times necessary The Lessee assigneth it over to H. who suffereth it to decay the Lessee bringeth an action of Covenant against the Assignee and it was adjudged the action did lye in that the Lessee had taken upon him to bear the charges of reparation the annuall rent was the less which trenched to the benefit of the Assignee and he that enjoyeth the profit must bear the burthen and charges vide ibidem plura Co. l. 5. f. 100. a. The Statutes will have all those which are in perill and which are to take comodity by the
making of the banks of a River to be contributory to it for Qui sentit commodum c. Coke l. 7. f. 39. b. If a man grant a Rent-charge for life out of his land and the rent is behind and the Grantor enfeoff A. and the rent is behind in his time and after A. enfeoffeth B. and the rent is behind in his time and then the Grantee dyeth the Executor shall have an action of debt against every of them for the rent behind in his time for qui sâ—ntit commodum c. and so was it holden in Ognels case l. 4. f. 49. a. 50. Barons uses f. 27. If a man bind himself and his Heires in an Obligation or do covenant in writing for him and his Heires or do grant an annuity for him and his Heirs or do make a Warranty of land binding him and his Heires to warranty in all these cases the Heir after the death of the Ancestor is by Law charged with this Obligation Covenant Annuity and Warranty yet with these three cautions 1. That the party must by speciall name bind himself and his Heires 2. That some action must be brought against the Heir whilest the land or other inheritance rested in him unaliened except the land was conveyed away by fraud and one purpose to prevent the Suit intended against him And 3. That no Heire is further to be charged then the value of the land descended unto him from the same Ancestor c. nor to be sold out-right for the debt to be kept in extent at a yearely value untill the debt or damage be run out Neverthelesse for his false plea shall he be charged of his own lands for this Deed of his Ancestor and the reason of this charge is Qui sentit commodum sentire debet incommodum onus vide ibidem plura Dilationes sunt in lege odiosae Ployd f. 75. b. Delaies are tedious in the Law and therefore doth the Law favour Assise because they are the more speedy Suits the Law hath given as the Statute of W. 2. c. 25. in its recitall saith Et quia non est aliquod breve in Cancelaria per quod quaerentes habent tam festinum remedium sicut per breve Nove disseisinae And therefore because it is the more speedy Suit the Law the more greatly favoureth it ibidem For for speed to the Plaintiff the Jurors shal have the view before appearance by the words of the Writ And though Warranties are favoured in Law yet none shall vouch in Assise any one if he be not present and that is for the speed of the Plaintiff No. Nat. br f. 178. And a protection will not defend the party against an assise but assises are accepted by the words of protection p. 2. H. 6. 42. Bâ— protection 53. And all things and pleas which go in retardation or abatement of Assises are esteemed odious and therefore exceptions which will abate other Writs shall not abate Assises if it be so that there is a Disseisor and a Tenant for it is the substance of the Suit and therefore the misnaming of one of the Defendants shall not abate the assise if there be another Disseisin and Tenant and yet the Writ was alwaies false Ploâ—d f. 98. a. b. And if the Tenant plead Joynt-tenancy with a stranger not named although the Plaintiff confesse it yet it shall not abate his assise but for it onely for the remnant the Writ and Plaint shall stand in his force and yet the Plaint was altogether false and if there be a Disseisor and Tenant for any part then it sufficeth for other verity in the Writ or Plaint the Law requireth none and to say that one named in the Writ is dead before the Writ purchased or that there was never any such in rerum natura is alone and shall be adjudged no plea in abatement of the Writ but if there be another Disseisor and a Tenant the Writ shall be good against them Ployd f 90. a. vide ibidem plura And though in actions reall as the weight of the cause requireth there are longer times given in their proceedings then in personall actions yet it appeareth by Fortescue de lib. l. A. c. 5. 3. that they are not too long nor admitted without just cause Crebro enim saith he deliberationibus iuâ—icia matur scunt sed in accelerato processu numquam And as Hobert saith f. 133. Festinatio jâ—stitiae est nâ—verca infortunii Festination of Justice is the step-mother of mischief but many times by deliberations Judgments grow to ripenesse but in over hasty processe never yet the Demandant shall come to a finall end by these actions which he shall never do by prosecution of personall actions for the tryall of a Freehold or Inheritance Co. ep ad lectorem lib. 8. And in all cases the Law favoureth speeding of mens Causes and hateth delayes as 3 H. 6. 15. b. He that pleadeth a Record in delay as to prove the Plaintiff excommunicate must have it ready to shew but otherwise it is if he plead in bar In dilatory pleas both Defendants must joyne 12 H. 7. 1. A Plea in bar that is dilatory must be good to every common intent 8 H. 7. 9. One who is in Court ready to joyn with the Defendant may do it without processe As the Vouchee the Plaintiffs Lessor being prayed in aid of when the Defendant in a Replevin avoweth upon him or the Mesne when the Lord Paramount voweth upon him But Joynder in aid cannot be by an Attorney without processe 2 H. 6. 1. b. One who is a Debtor to the King of Record in the Exchequer if he be seen in the Court may be brought in to answer 2 H. 6 4. b. An assise of Darrein presentment was brought and it was pleaded in abatement of the Writ that the same Plaintiff had brought a Quare impedit against the Defendant for the same Church and the Court was of opinion that it was a good plea for the Quare impedit is of an higher nature for the right and possession and the Statute of W. 2. l. 5. saith that it may be in the election of one to have an assise of Darrein-presentment or a Quare impedit ergo not both And it was adjudged p. 15 Jaco that one cannot have two Quare Impedits of one Church for one avoidance Hutton f. 403. When the Law giveth a man severall remedies for a thing he cannot have both of them together as Littleton saith for then he should recover one thing twice which should be a double charge and a double vexation to the Defendant Co. Com. 145. a. as if I grant by Deed a Rent-charge to another the Grantee hath election to bring a Writ of Annuity and charge the person onely to make it personall or to distrain upon the land and make it reall but he cannot have both after the Grantee hath determined his election but this determination of election must be by action in
Quare Impedit 54. but at this day it is remedied by the act 1 E. 3 c. 12. by which it is declared that because that many people may be grieved for it that Lands and Tenements held in chief of the King as all those which hold by grand Serjanty are and alien without leave have been held as forfeited hereafter in such case let a reasonable fine be taken So since that Statute at all times when Lands holden by grand Serjanty have been aliened without licence a fine hath been taken and no seisure ever made for the forfeiture and therefore no forfeiture to be taken for Custome is the best Interpreter of the Law vide etiam L. 10. f. 70. b. Consuctudo manerii est observanda Co. com f. 63. a. consuetudo loci est observanda Brac. l. 2. f. 76. l. 4. f. 28. The custome of the Mannor and the custome of the place is to be observed for there are different customes in many Mannors and places and the customes of one Mannor in some particulars commonly varieth from another And these diversities of customes have grown by reason of the severall Nations who have had government over this Kingdome Britans Romans Saxons Danes Normans which have left part of their Language and part of their usage which difference of usage and custome is to be observed in every place and Mannor for what a Copyholder may or ought to do or not to do the custome of the Mannor must direct it and if there be no custome to the contrary wast either premissive or voluntary of a Copyholder is a forfeiture of his Copyhold Co com f. 63. a. If a Copyholder for life surrender to another in fee it is no forfeiture for that passeth by surrender to the Lord and not by Livery And Copyhold Estates shall not have the collaterall qualities that the estates of the common Law have without especiall custome for the custome of the Mannor is to be observed Coke l. 1. f. 22. a. 23. a. vide ibidem plura f. 28. b. Coke l. 6. f. 67. a. In a common recovery which is had by agreement and consent of parties of acres of land the acres shall be accounted according to the customable and usuall measure of the Country and not according to the Statute De terris mensurandis made in the 33 of Ed. 1. Sir John Buntings case 1 Eliz. So if a man bargain and sell so many acres of wood they shall be measured according to the usage of the Country and that is according to twenty foot to the Rod and not according to the said act for the custome of tho place is to be observed 47 E. 3. 18. Coke l 10. 140. a in Kighleys case It was resolved cleerly that the severall Commissioners of Sewers throughout England are not bound to pursue the Lawes and Customes of Romney Marsh but in case where any particular place within their Commission have such Lawes and Customes as Romney Marsh hath there they may pursue them for the custome of the place is to be observed Consuetudo vincit communem legem coke l. 4. f. 21. Custome overcometh and mastereth the common Law and will not alwaies be ruled by its grounds for a custome and usage of time whereof the memory of man runneth not to the contrary may create and consolidate Inheritances Coke comm f. 185. b. If a man be seised of an house and possessed of divers Heir Looms that by custome have gone with the house from Heir to Heir and by his Will deviseth away the Heir-looms this devise is void for the Wil taketh effect after his death and by his death the Heir looms by ancient custome are vested in the Heir and the Law preferreth the custome before the devise 1 H 5 Executors 108. And so it is if the Lord ought to have an Heriot when his Tenant dieth and the Tenant deviseth all his goods yet the Lord â—â—all have his Heriot for the reason aforesaid And it hath been anciently said that an Heriot shall be paid before a Mortuary wherein the Lord is preferred because the Tenure is in him Co. ibidem Ployd f. 36. b. Whereas the Statute of 1 R. 2. c. 12. doth ordain that the Warden of the Fleet shall not suffer any one who is in execution to go out of Prison by main-prize bail or baston yet it is taken by equity of the said Statute thâ—t if any other Goaler who lets such a one in execution to go out of prison with mainprize bail or baston that it shall be said to be an escape But notwithstanding that it extendeth to all other Goalers so fully as though it had been expressed by plain words yet those of London use to let such go at large with baston in any place within their jurisdiction and shall not be judged an escape in them and the reason of that is not because the statute in equity doth not extend to them but the reason of it is their prescription in that point and all their customes and prescriptions are confirmed by the Statutes by which they may prescribe against the equity and words of the statute which are contrary to their customs and prescriptions as against the statute of Silva caedua and to hold Leet at other times then the statute appointeth and such others ibidem Obtemporandum est rationabili consuetudini tanquam legi coke l. 4. 38. b. Littleton Sect. 170. consuetudo ex certa causa ratienabili usitata privat communem legem We ought to obey a reasonable custom as a Law and a custom used upon a certain reasonable cause depriveth or over cometh the common Law but a custome introduced against reason is rather an usurpation then a custome coke comm f. 113. a. and it is a Maxime in our Law that all customs and prescriptions which be against reason are void coke comm f. 140. a. As if the Lord of a Mannor prescribe a custome in generall that every Tenant in his Mannor that marrieth his Daughter to any man without the licence of the Lord shall pay a fine and have paid a fine to the Lord for the time being this prescription is void for none in such case ought to pay fines but Villains vide ibidem plura So if the Lord of a Mannor do prescribe that for the time being he hath used to distraine Cattell were upon the demeans of his Mannor for Damage-feasant and the distresse to retain till fine were to him for damages at his will this prescription is void for it is a Maxime in Law Aliquis non potest esse judex in propria causa no man can be a Judge in his own case ibidem 141. a. And therefore a Fine levied before the Bayliffs of Salop was reversed because one of the Bayliffs was a party to the fine because he cannot be a Judge and a party coke ibidem So a custome that the Lord shall take for Heriot the beast of a stranger levant and couchant upon the
Dower and distraineth the tenant albeit the grant of Mesne was to acquit him against the Lord and his heires onely yet because she continued the State of her husband and the reversion remained in the heire this grant of the acquittall did extend to his wife for Qui haeret Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba ipsa fienda est Coke l. 7. f. 24. a. So often as there is no ambiguity nor doubt in the words there no exposition against the expresse words is to be made If A. by Deed granteth rent out of the Mannor of D. to have and receive it to him and his heires and further granteth by the same Deed that if the rent be behind that the grant shall distraine in the Mannor of S. both the Mannors are charged the one with the rent the other with the distresse for the rent the one issueth out of the Land and the other is to be taken upon the Land for here a rent is granted expresly to be issuing out of the Mannor of D. and the parties have expresly limited out of which Land the rent shall issue and in which the distresse shall be taken and the Law shall not make any exposition against the expresse words and intention of the parties when it can stand with the rule of Law for where there is no ambiguity in the words there is no exposition to be made contrary to the expresse words ibidem in Calvins case Exception Yet as Mr. Ploydon saith f. 18. b. The words of the Law of nature of the Law of the Realme and the Law of God will yeild and give place to some acts and things done against the words of the same Laws and that is when they are infringed to avoid greater inconveniences or for necessity or by conpulsion For inconvenience It is a rule in the Law that factum unius alteri nocere non debet no mans deed ought to hurt another but there is another maxime that it is better to suffer a mischeife then an inconvenience which is to be preferred before it Coke com 152. b. As if there be Lord Mesne and Tenant and the Tenant holdeth of the Mesne by five shillings and the Mesne holdeth over by the service of twelve pence if the Lord purchaseth the Tenancy the Mesnalty is extinct because when the Lord hath the Tenancy he holdeth of the Lord next parament to him and if he should hold of him that was Mesne then he should hold the same Tenancy immediately of two Lords which should be inconvenient and the Law will that we rather suffer a mischeife then an inconvenience Littleton so as the rule is regularly true res inter alios acta alteri nocere non debet what thing is acted among some must not hurt an other but with this exception unlesse an inconvenience should follow Coke ibidem So it is a Maxime in the Law that a warranty of a collaterall Ancestor if it descend upon him shall bar the heire as if A. disseise B. of Land and selleth the Land and the Alienee obtaineth a warranty of the Ancestor collaterall to the Disseissee after whose death the warranty discendeth upon the Disseissee the Disseissee by descent of the warranty upon him is barred for ever in Law Doctor and Student l. 2. c. 501. but though they all offended in obtaining of the said collaterall warranty yet such an offence is not to be considered in the Law for the inconvenience that thereupon might ensue for it is holden for an inconvenience as Coke saith Com. 152 b. That any of the Maximes of the Law should be broken though a private man suffer losse for that by infringing of a Maxime not onely a generall prejudice to many but in the end a publick incertainty and confusion would follow lex citius tolerarâ— vult privatum damnum quam publicum malum and Law will sooner suffer a private injury then a publick evil neither in such cases is there any remedy to be had in the Chancery or in conscience for it was resolved in Beverlys case Coke l. 4. f. 124. a. That against an expresse maxime of the common Law no man shall have releife in Chancery for it should be in subversion of a principle or ground of Law Doctor and Student ibidem vide ibidem plura So Ployd 18. b. It is against the Law of nature and the Law of reason to beate the person of any man in any cases yet when a man is mad and of non sanae memoriae and doth much evill a man and his Parents also may take him binde him and beate him with rods and may justify it 22. Ass Pl. 56. And by the Statute of Mar. it is generally prohibited that none shall drive any distresse out of one County into another and yet it is adjudged that if one hold Land of a Mannor in another County that the Lord may distraine and drive the distresse of the Land holden of the Mannor in the County where the Mannor is and that is in avoidance of the inconvenience for it should be a great damage to the Lord if he should not drive the distresse to his owne mannor for the avoidance of which the Law is not offended although the words of the Law be broken M. 1. H. 6. Pl. f. 3. A man priviledged in some Court is sued in London and the Action is actionable no where else yet upon a supersedeas the Court shall surcease Finch Nomot And wee see also that necessity in all Lawes shall be a good excuse and that all Lawes give place to necessity according to the common proverbe necessitas non habet legem necessity hath no Law And therefore in a precipe quod reddat the tenant shall excuse his default by a flood of water and yet every default is abhorred in our Law because it is a contempt of the Court but because by perill of death he could not come the necessity of the chance in such case in regard there was no default in him shall excuse him M. 38. H. 6. 11. So the words of the Law of God may be infringed by necessity without offence to God and therefore in the old Law by the Law of God it was prohibited that none should eate of the shew bread and yet it appeareth that David for necessity of famine did eate the said bread and yet he did not breake the Law as our Saviour Christ declareth in the Gospell so the Apostles of our Saviour did pull the eares of Corne of other persons and did eate them and that for necessity of famine Ploydon f. 19 a. So if a man steale victualls to satisfie his present hunger this is no Felony nor Larceny Stanford because it is for the conservation of life And if diverse be in danger of drowning by the casting away of some Boats or Barge and one of them get to some Planke or on the Beats side to keep him above water and
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