Oportet ut res ceria deducatur in judicium Playter brought an action of Trespasse against one W. Wuare clausum suum fregit pisces suos cepit without shewing the number or nature of the fishes and it was resolved that the Count should have comprehended the fishes in certain that the Defendant might have a certain answer and upon which a certain Judgement might be given P. Pater est quem nuprie demonstrant Litt. Com. 123. a. And therefore if a Villain have a Bastard by a woman and marrieth her the Bistard is no Villain because the Villain cannot be said to be his father he being a Bastard Pendente lite nihil innovetur At the Common Law Litt. Com. 344. b. if hanging the Quare impedit against the Ordinary for refusing of his Clerk and before the Church were full the Patron brought a Quareimpedis against the Bishop and hanging the Suit the Bishop admit and institute a Clerk at the presentation of another In this case if Judgement be given for the Patron against the Bishop the Patron shall have a Writ to the Bishop to remove the Incumbent that came in pendente lite by usurpation But since Westm 2. among other things it is enquired Ex officie if the Church be full and of whose presentation Perspicue vera non sunt probanda The Lord Cook Litt. Com. â— 16. b. in his Commentary upon Littleton observes that Mr. Littleton never citeth any Authority through his whole Book but when the case is rare or may seem doubtfull which appeareth in this that he putteth no case but hath warrant of good authority in Law The like of Justice Fitzherbert in his Natura Brevium that he never citeth authority but when the case is rare or doubtful Plus precat author 13 H. 7.10 Stamf. l. 1. c. 45.21 E. 4.71 quam actor If one be present at the death of a man and incite another to strike and kill him by this he is principal as well as he that killed him Litt. Com. 14.6 Possessio fratris de foede simplici facit sororem esse haeredem A man seized of lands in Fee-simple hath issue a son and a daughter by one venter and a son by another venter and dieth and the eldest son enters and dies without issue the daughter shall have the land and not the youngestion The like of an Use Ib. 10. b. Propinquior exeludit propinquum propinquus remotum remotus remotiorem And therefore the Fathers brother and his posterity shall inherit before the grandfathers brother and his posterity Proximus sum egomet mihi And therefore in Legacies it is reason that the Executors shall have preferment of satisfaction before others and the Law maketh allowance to them before any others Q. Quando lex aliquid concedit concedere videtur id Litt. Com. 55. a. 153. a. Coke Rep. Lyford's case sine quo res esse non potest If Lessee at will soweth the land and the Lessor after it is sown and before the corn is ripe put him out yet the Lessee shall have the corn and shall have free entry egresse and regresse to cut and carry away the corn Quando aliquid fieri prohibetur ex directo Litt. Com. p. 23. b. prehibetur per obliquum A Feosment upon condition that the Feoffee shall not alien to such a one naming his name is good And in this case if the Feoffee infeoff J. N. of intent and purpose that he shall infeoffe J. S. some hold this a breach of the condition Quando jus Domini Regis subditi concurrunt Litt. Com. 77. a. jus Regis praeferri debet If a man hold lands of the King by Knight-service in Capite and other lands of other Lords and dieth his Heir within age the King shall have the Wardship of all the lands by his prerogative Quaelibet haereditas naturaliter ad haeredes haereditabiliter descendit Litt. Com. 11. a. nunquam naturaliter ascendit nisi a latere If there be father uncle and sonne and the son purchase land in fee-simple and die without issue living his father his uncle shall have the Land as heir to the son Quae in partes dividi nequeunt 14 E. 3. Fitz. 1. Kitchin fol. 134. a. solida a singulis praestentur If my Tenant that holdeth of me by a Harriot alien part of the land to another every one of them shall pay Harriot because it is an entire thing Quaelibet concessio fortissime contra donatorem interpretauda Litt. Com. 42. a. If Tenant in Fee make a lease for life without mentioning for whose life it shall be taken for the life of the Lessee and shall be taken more strongly against the Lessor Qui non habet in aere Hobart's Rep. fol. 133. luat in corpore And therefore the Law hath provided several executions for the executing of the Law and he that hath not to pay of his goods c. must suffer in his body by imprisonment Qui ex damnato etitu nascuntur Litt. Com. 3. b. 78. a. 123. a. inter liberos non computentur A man makes a lease to B. the remainder to the eldest issue male of B. and the heirs males of his body B. hath issue a bastard son he shall not take the remainder because in Law he is not his issue Qui haeret in litera haeret in cortice The statute of Glouc. c. 5. which giveth the action of waste against the Lessee for life or years which lay not against them at Common Law speaketh of one that holdeth for term of years in the plurall number and yet though it be a penall Law whereby treble dammages and the place wasted shall be recovered yet tenant for half a year being within the same mischief shall be within the same remedy though out of the letter of the Law Qui ad mit medium dirimit finem Litt. Com. 161. a. 26 Ass 17.3 E. 4.2 And Qui obstruit aditum destruit commodum And therefore if a man be disturbed to enter and manute his land this is a disseizin of the land it self Qui peccat ebrius Litt. Com. 247. a. luat sobrius A drunkard who is voluntarius daemon hath no priviledge thereby but what hurt or ill soever he doth his drunkennesse doth aggravate it Qui per alium facit Litt. Com. 258. a. per seipsum facere videtur If the master command the servant to go to the Land and make claim there to avoid the discent if the servant doth all that which is commanded and which his Master ought to do there it is as sufficient as if his Master did it himself Qui semel Actionem renuntiavit Litt. Com. Coke l. 8. f. 58. Beecher's case amplius repetere non potest A retraxit is a barre of all actions of like or inferiour nature Qui sentit commodum Coke l. 5.99 Rook's case c. l. 5.24 Dean and Chapter
of Windsors case Hob. 4. f. sentire debet onus The Commissioners in the Commission of Sewers ought to tax all which are in dammage or in danger of dammage and not only him which hath the lands next adjoyning to the river for it may be that the rage and force of the water might be such that the value of the land adjoyning would not serve to amend it therefore the statute would have all in peril 6 H. 6. c. 5. and which take commodity by the making of the Banks to be contributary to the amendment thereof Quod ab initio non valet tractu temporis non convaelescet Tenant for life of a carve of Land the reversion to the father in fee the Son and Heir apparent of the Father indoweth his Wife of this carve by the assent of the Father the Tenant for life dyeth the Husband dyeth the reversion was a Tenement in the father and yet this is no good indowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a freehold whereof he could not have indowed his own Wise though the Tenant for life dyed living the Husband Quod prius est tempore Litt. Com 14. ae potius est jure quod prius dignius And therefore among the males the eldest brother and his posterity shall inherit lands in fee simple before any younger brother or any descending from him Quod semel meum est Litt. Com. 49. b. amplius meum esse non potest And therefore if a man let land for a term of years the remainder over to another for life or in tail or in fee in this case it behoveth the Lessor to make livery of seizin to the Lessee for years otherwise nothing passeth to them in the remainder although the Lessee enters into the tenements And if the termor in this case enter before any livery of seizin made to him then is the freehold and also the reversion in the lessor And if the Lessor afterwards make livery to the Lessee it is void for by the entry of the Lessee he is in actuall possession and livery cannot be made to him that is in possession Quod semel placuit in electionibus Litt. Com. 146. a. amplius displicere non potest If a man grant by his deed a rent charge to another and the rent is behind the grantee may bring a writ of Annuity or distrain at his election but he cannot have both together For if he recover by a writ of annuity the land is discharged of the distress And if he distrain for the arrearages and the Tenant sue a Replevin and the grantee avow the taking of the distress in the land in a Court of Record then is the land charged and the person of the Grantor discharged of the Action of Annuity Quoties in verbis nulla est ambiguitas Litt. Com. 14.7 a. ibi nulla expositio contra verba expressae fienda est If a rent be granted out of the Mannour of D. and the Grantor grant over that if the rent be behind the Grantee shall distrain for the same rent in the Mannor of S. this is but a penalty in the mannor of S. For the Law needs not to make construction that this shall amount to the grant of a rent for here a rent is expresly granted to be issuing out of the Mannor of D. and the parties have expresly limited out of what land the Rent shall issue and upon what land the distress shall be taken and the Law will not make an exposition against the express words and intention of the parties Quod constat clare Coke l. 9. fol. 33. Batens case non debet verificari In a Quod permittat if it appear to the Court that the Nusance is to the dammage of the Plantiff he need not shew it specially as if the house of the Defendant hangeth over the House of the Plaintiff's Refert à quo fiat perquisitum Litt. Com. 12. a. Ployd 47. Sir Edw. Clere's case Coke l. 5. f. 76. Paget's case None shall inherit any lands as heir but only the blood of the first purchasor Remoto impedimento emergit actio If tenant for life remainder for life the remainder in fee make waste in Trees and after he in remainder for life dye an action of waste is maintainable by him in the remainder in fee for the waste done in the life of him in remainder for life because to the disinheritance of him in remainder in fee and now the impediment which was the mean estate for life is taken away Repellitur à Sacramento infamis Litt. Com. 158 a. If a Juror be attainted or convicted of Treason or Felony or of any offence to life or member or in attaint for a false verdict or for perjury be adjudged to the Pillory or the like or to be branded or stigmatized or to have any other corporall punishment whereby he becometh infamous these and the like are principal causes of challenge Res inter alios acta alteri nocere non debet Litt. Com. 152. b. And therefore if a Lessor by Covin suffer a common recovery the Lessee may falsifie it by the Stat. of 14 E. c. 1. S. Sensus verborum ex causa dicendi accipiendus est Coke l. 4. 105. Birchlye's case sermones secundum subjectam materiam sermo relatus ad personam intelligi debet de conditione personae The Defendant said to B. Clerk of the Kings Bench and sworn to deal duly without corruption You are well known to be a corrupt man and to deal corruptly adjudged that the action lyes because the words ex causa dicendi imply that he hath dealt corruptly in his profession Semper praesumitur Lit. 126. a. pro legitimatione puerorum And therefore if the Husband be within the four Seas that is within the Jurisdiction of the King of England if the Wife hath issue no proof is admitted to prove the child a bastard Si mulâ—er nebilis nupserit ignobili Litt. 16. b. Coke l. 6 53. l. 4.18 b. desinit esse nobilis If a woman gain Nobility by Marriage if she marry under the degrees of Nobility she loseth it otherwise if Noble by descent Solus Deus facere potest haeredem Litt. com 7. b 22. b. And therefore during the life of the Father he cannot be heire but heir apparent And therefore a Lease for life the remainder to the right Heirs of J. S. if Tenant for life die living J. S. the remainder cannot rest there being no heirs of J. S. but onely apparent Stabitur praesumptioni donec probetur in contrarium Lit. Com. 310. b. 393. b. If a man plead the Feoffment of a Mannor he need not plead an Atturnment of the Tenants for that shall be presumed till it bee shewn to the contrary T. Testamento cum duo inter se pugnantia reperiuntur Litt. Com. 112. b.
two-fold like those two great Lights Bracton l. 9.23 3 H. 6.55 which God hath set in the Firmament of our Heart Nature and Reason Lex naturae est ratio summa insita in hominis natura quae jubet ea quae faci enda sunt prohibetque contraria Cic. l. 1. de legibus The Law of Nature is Soveraign Reason fixed in mans nature which ministreth common Principles of good and Evill The Law of Reason is that which deduceth Principles by the discourse of sound reason The rules of Reason are of two sorts some taken from Forraign Learnings both divine and humane the rest proper to Law it self Of the first sort are the principles and sound conclusions from forraign Learnings First from Divinity the Doctrine of Religion To such Lawes of the Church as have warrant in holy Scripture 34. H. 6.40 our Law giveth credence 1. The Sabbath day is no day for Law-dayes 1 Eliz. Dy. 168. F.N.B. 17. f. 12 E. 4.8 Dies Dominicus non est juridicus If a Scire facias out of the Common Pl as bears Teste upon a Sunday it is error Of Grammar 2. Words in construction must be referred to the next Antecedent when the matter it self doth not hinder it An Indictment against I. S. serviens I. D de D. im com Mid. Butcher 9 E. 4. 4â— 32 H. 8. Dy. 46. b This is not good for Serviens is no addition and Butcher referreth to the Master which is the next Antecedent From Logick In the Maxim of Causes and Effects The Cause ceasing 5 E. 4.8 b. 7 El. D. 293. b. 13 El. 401. 13 E. 4.10 b. the Effect doth likewise cease The King granteth an Office to one at will and ten pound-fee for life 14 H. 7.2 pro officio illo Now if the King put him from his Office the Fee shall cease 4. Things are construed according to that which was the cause of it 21 E. 4. 68 b. 14 E. 3.14 b. 14 Ass pl. 20. 3 E. 3.84 One imprisoned till he be content to make an obligation at an other place and afterwards he doth so being at large yet he shall avoid it by duress of imprisonment 5. Things are construed according to that which is the beginning thereof 33 Ass pl. 7. 10 Eliz. Dy. 266. b. If a servant departed out of his Mâ—ster's service kill his Master upon malice that he bare him whilst he was his servant it is petty Treason 6. And therefore a derived power cannot be greater Litt. 6. 28 Ass pl. 4. 2 E. 4 1â— than that from which it is derived The Atturney of one that is disseized cannot make claim of from the land if the Disseizee himself durst have gone to the land 7. Things are dissolved as they be contracted 19. E. 4.1 5 H. 7.33 b. 5 H. 7.7 b. An Obligation or other matter in writing cannot be discharged by lan Agreement by word 8. Things grounded upon an ill and void beginning cannot have a good perfection 10 El. Dy. 344 An Infant or Feme covert make their Will and publish it and after dying of full age or sole yet the Will is nothing worth 9. He that claimeth paramount a thing 2 3. El. Dy. 187. shall never take benefit nor hurt by it An Executor recovereth and dieth intestate Administration of the first Testator is committed to J. S. J. S. shall not sue execution upon this Recovery for he is Administrator to the Testator Paramount the intestate 10. Things are construed according to the end 19 E. 4.3 13. E. 3. Joynder in ayd 10. 50. Ass pl. 2. Vouchee upon a Grand cape ad valentiam shall not lose the land though he cannot save his default For the Processe is onely to this end to have him to appear In the Maxim of Subjects and Adjuncts Where the foundation faileth 3. E. 3.74 b. 49 E. 3.8 all goeth to the ground A Church appropriated to a spiritual Corporation becometh disappropriate if the Corporation be dissolved Things incident cannot be severed 7 E. 4.11 12 El. 12. 381. Dy. 12 El. 12.379 19. H. 8. Br. Incidents 34. 3. E. 3 Ass 441. Lord and Tenant by fealty and homage the Lord releaseth his fealty this is void for fealty is incident to homage Things by reason of another are of the same plight Two Copereeners make partition and one covenants with the other to acquit the land 42 E. 3. 6 E 6. Dy. 72. b. F. N. B. 21. b. Now if the Covenantee abett his part the Alienee shall have a Writ of Covenant Personall things Cannot be done by another 7 H. 4.19 21. E. 4.34 Suit of Court cannot be done by another They cannot be granted over as matters of pleasure ease 12 H. 7.25 19 H. 8.10 7 H. 4.36.11.3.4.1 12 El. 179. Br. Licences 25. trust and aeuthority A license to hunt in my Parke to go to Church over my ground c. cannot be granted over So a warrant of Atturney made to one to deliver seizin he cannot grant this his authority over They dye with the person When a corporal hurt or damage is done to a man 2 H. 8.21.1.2 P. M. 114. as to beat him c. if he or the party beaten dye the Action is gone Among the disagreeable arguments First from these that differ only is a certain respect and reason not indred and in nature Things do inure diversty according to the diversity of Time Lands given in Frank marriage reserving a rent 26 Ass pl. 66. the reservation is voidâ— till the fourth degree past and afterwards good Person viz. Of the same person One that hath a rent-charge going out of the wive's lands 14. H. 8.6 releaseth it to the Husband and his Heirs the Husband yet shall not have it but it shall inure to him by way of extinguishment onely as seized in the right of his wife Severall persons A man makes a lease of a Mannor except an acre 1 2 P. M. 104. 11 E. 4.2 this acre is no part of the mannor as to the Lessor but as to him that hath right to demand the Mannor by an eign title it remaineth parcell and therefore he shall make no foreprise in his writ Then from Relatives No man can doe an act to himself 3 El. Dy. 188. 13 H. 8.22 Lit. 147. b. And therefore if the Sheriff suffer a common recovery it is error because he cannot summon himself Of Comparisons from the equalls Things are to be construed secundum equalitatem rationis If two four 26 Ass pl. 37. Coke 136. Sir Will. Herbert's case Bract. l. 1. c. 23. H. 8. Fitz. or more men being severally seized of land joyn in a recognizance all their lands must equally be extended From the greater and the lesse The greater doth contain the lesse 3 4 P. M. Dy. 150. b. By a pardon of Murder man-slaughter is pardoned A matter of
assumption or promise doth then only bind when it is made upon good consideration In Actions It yieldoth favour when for the doing of it there is necessity Br. Executor 172. A man in his own defence for the necessity of the saving of his life and a Champion in a Writ of Right for the necessity of Triall may kill another Whither refer Conformity which is a kind of necessity Rent must be demanded though no man be upon the land to pay it Of Colour If the heir indow the Ancestors wife 41 H. 3.28 22 Ass pl. 64. though she were not dowable yet she shall hold in Dower It priseth acts in Law higher then those that are done by the party 2. 3. P. M. 134. b. 29 Ass pl. 23. 49. E. 3.15 2 H. 7.5 For equality of partition among Coperceners a Rent granted shall be a Fee-simple without the word heirs and issuing out of the land without so expressing it in the Grant It reputeth that men will alwaies deal for their own best advantage And therefore Believeth against the party whatsoever is to his own prejudice For the time of doing things It countenanceth more Things done in time of peace Litt. 97. 7 E. 3. Darren presentment 2. F. N. B. 31. b. than in time of war A Diffeizin and Descent in time of war shall not toll the Entrie of the Dasseized Things done in the day more than in the night A man must not distrain in the night time for Rent behinde Where things are fit to be straitned to a time is esteemeth according to the nature of the things Sometimes a whole day sufficient Where goods are lost in War and recovered from the enemy by another of the Kings subjects the owner shall have them again if be make fresh suit before the Sun set else not Sometimes a whole year The Lord loseth his Villain for ever if a Villain flie into ancient Demeasn and there continue a year and a day without claim of the Lord. The third offence it estremeth more heinous The third Writ not returned by the Steriff is a contempt whereupon an Attachment lieth Political Precepts follow The Law savoureth Things for the Common-weal 8 E. 4 18 b. 14 H. 8. 25.29 H. 8 Dy. 36. b. Fishermen may justfie their comming upon the land adjoyning to the Sea to dry their Nets for Fishing is for the Common-wealth and fustenance of all the Realm Publick quiet And therefore Common Error goeth for Law Ploy Manxel's case f. 2. 2 R. 3.7 Whether a common Recovery be a Bar unto an Estate Tail or no is not to be disputed because a great part of the Inheritance of the Realm doth depend upon it Of this kind are those Occonomicks The Husband and the Wife are one person And therefore F. N. B. 78 Abridgement Ass pl. Brook Denisn 2. The Wife is of the same condition with her Husband Franck if he be free Denizen if he be an Englishman though she were a neise before or an alien born They cannot sue one anothâ—r 21 H. 7.29 b. Perk. 40. or make any grant unto the other or such like If a woman marry with her Obligor the Debt is extirect and she shall never have an action against the co obliger if another were bound with him because the suit against her husband by enter-marriage was suspended and therefore being a personal action and suspended against one it is discharged against both Vpon a joynt-purchase during the coverture either of them taketh the whole Litt. 65.39 H. 6.45.21 H. 2. Judgment 63. If the husband alien land c. so given she shall recover the whole in a Cui in vita alter his death and the Warranty of one of them or his Ancestors is a bar of the whole against them both The Husband is the womans head And therefore All she hath is her hurbands If goods be given to a Feme Covert 21 H. 7.29 Litt. 148.14 El. Pl. 418. 191 16 E 4.8.7 H. 6.1.39 H. 6.27 and another the Joynture is strait-way severed and the husband and the other are Tenants in common and the Executors of the husband shall have all the goods that were his wives Her will is become his will and subject unto it If an action of Trespass be brought against Husband and Wife and the wife come in by Cepi corpus and the Husband doth not appear she must be let at large without any Mainprise till her husband doth appear but he appearing may answer without her therefore a protection cast by the Husband serveth for the wise also because she cannot answer without him Last come the Morall Rules The Law favoureth right Litt. 158. When two are in a house or other Tenements and one layes claim by one Title the other by another Title the Law adjudgeth him in possession that hath the right to have the tenements And therefore Suffereth things against the principles of Law F.N.B. 69 b. 4 H. 7.40.11 H. 7.10 rather then a man to be without his remedy The Tenant shall have a replevin against the Lord that did wrongfully distraine though the beasts be come back to himsell because he can have no action of Trespasse against him Hateh wrong So that So man shall take benefit of his own wrong 13 H. 7.1.31 H. 6.60.27 H. 8.11 One in execution escapes and the Jaylor gets him again the party if he will may have him to remain in execution for him still for the escape is his own wrong And therefore Of it selfe projudiceth no man 12. E. 4.8.48 E. 3.27 He that misdemeaneth authority that Law giveth as if one come into a Tavern and will not goe out in seasonable time or distrein for rent and kill the distress shall be a wrong doer ab initio Especially for things that cannot be imputed to his own folly 35 H. 6.3.38 H. 8. Br. The Lord Chancedor's Servant impleaded at the common Law clameth priviledge of the Chancery and before it be discussed whether he shall have it or no the Lord Chancellor dyeth yet his priviledge is allowable still for the act of the Court to advise of it shall not prejudice him And therefore Driveth not a man to shew that which by intendment he knoweth not 10. E. 4.15 2 Mar. 128 4 E. 6.46 One bound in an Obligation to serve J. S. for seven years in omnibus mandatis ejus licitis shall plead that he did serve him lawfully without shewing what service or in what Commandment for no servant can remember all Truth And therefore It disfavoureth Fraud and Covin If a woman hath good title of Dower 18 H. S. 5. and cause I. S. to disseize the Tenant of the Land and recovereth her Dower against I. S. yet this is no good estate of Dower in her for she is privy to an unlawful act which should be the means of her estate Vncertainty whereby truth is inveigled A man grants all his Trees