without an originall is voide Kel f. 19. b. A remainder is limited to the King and before the inrolement of the deed the King granteth it over and then the deed is inrolled this will not make the grant good Coke l. 3. f. 29. An executor assigneth auditors to one who was accountant to the testator and his auditors find him in arrearages the Action of debt shall be brought in the Detinet onely and hath respect to the beginning 11. H. 6. If I have a villaine for yeares as executor and the villaine purchaseth land the executor entreth the land shall be to the use of the testator and assets in his hands because the villaine which was the cause of it was to such use Ployd f. 292. a. Chap-mans case Causa origo est materia negotii Cok l. 1. Shellies case f. 99. b. vide As if a servant hath an intent to kill his Master before the execution of his intent departeth out of his service being out of his service executeth his intent and killeth him which was his Master it is petit treason for the execution respects the originall cause which was the malice conceived when he was his servant vide ibidem plura I. S. buildeth a shop on the wast of a Mannor of which the Queene was seis'd the Queen granteth the Mannor to the Earle of Leicester and he never entreth nor taketh rent I. S. dieth and his sonne entreth there is no descent against the patentee because there was no disseisin against the Queene Dyer 266. b. Yet when the law giveth power and authority to doe any thing Exception the law adjudgeth of the thing by the act subsequent not precedent Coke l. 8. f. 146. b. As the law giveth me power or license to enter into a common Hostlery or Taverne or to the Lord to distraine or to the owner of the soile to distrain for damage feasant or to him in the reversion to view if wast be made and to the commoner to enter into the land to see his beasts but if he that entreth into the Hostlery or Tavern maketh trespass or if the Lord that distraineth for rent or damage fesant beat or slay the distress or if he that entreth to see wast breaketh the house or remaineth there an whole night or the commoner cut downe trees in these cases the Law shall judge by act subsequent that they entred to that purpose and shall be trespassors from the beginning for acta exteriora indicant intoriora secreta the outward acts shew the inward secrets and with what minde and with what intent he did enter So if a purveyor take my beasts for the hostle of the King by force of his commission it is legall but if he sell them in Market then the first taking is injurious Coke l. 9. f. 11. a. Tenant in taile hath issue two daughters and dieth and the elder entreth into the whole and after entry maketh a feoffment with warranty which is a lineall warranty for the one and collaterall for the other the law judgeth by the act subsequent that the entry was not generall for them both but that it was onely for her selfe and that it shall be a warranty to commence by disseisin for the one moiety Quod initio vitiosum est tractu temporis non convalescet Reg. I. Civ Quod initio non valet tractu temporis non convalescet Coke com f. 35. a. That which in the beginning is vicious or invalid cannot by tract of time bee made good or valid as tenant for life of a carve of land the reversion to the father in fee the son and heire apparent endoweth his wife of this carve by the assent of the father tenant for life dieth the husband dieth this is no good endowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a free-hold whereof hee could not have endowed his own wife Ployd f. 432. b. A. possessed of an horse selleth the horse upon condition that hee shall pay him at Christmas forty shillings for it and before the said feast he selleth the horse to another and at the feast the first buyer faileth of payment whereupon A. reseiseth the horse yet the second buyer shall not have him because at the time of the second contract A. had no interest nor property nor possession of the horse but onely a condition which was not sufficient to make the contract good A. seised of Lands in see maketh a lease for twenty yeares rendring rent to begin presently and the same day he maketh a Lease to another for the same terme the second lease is utterly void so as if the first Lessee surrendreth his terme to the Lessor or loseth the same by breach of condition or forfeiteth it by making a feoffment upon entry of the Lessor the second Lessee shall not have his terme because the Lessor at the making of the second lease had nothing in him but the reversion ibidem A feoffement to the use of the husband for life the remainder to I. S. the remainder to the wife for her joynture this is not a joynture to bar dower because it did not take effect immediately after the death of her husband Hut Rep. f. 50. An infant or a married woman makes a will and publisheth the same and afterwards dieth being of full age or sole notwithstanding this both Wills are void 10. Eliz. 344. Noy Max. f. 4. A lease for life the remainder to the Major and commonalty of B. whereas there is no such it is void though the King doth create such a corporation during the particular estate so a remainder limited to John the son of I. S. having no such son and afterwards a son is borne to him whose name is John during the particular estate it is void Doder Que malo inchoata sunt principio vix bono peraguntur fine Those things which have a bad beginning can hardly have a good end Coke l. 11. f. 78. As a man seised of Lands in fee by deed upon good consideration granteth the Land after his death to the Queene her heires and successors such grant is not made good by the generall words of the act of 18. Eliz. because it was void in the beginning and with it accordeth 38. H. 6. f. 33. The Abbeffe of Sions case and the Earle of Leicesters case Ployd f. 4000. a stronger case then it vide ibidem plura Magdalen Colledges case Coke l. 4. f. 90. a. If a son and heir apparent of a Baron reteyne a Chaplaine and giveth to him his letters under signe and seale and after his father dieth and this Chaplaine purchaseth a dispensation this retainer and those letters will not serve him in that they were not availeable at the beginning vide ibid. Dâ—uries case Coke câ—m f. 352 b. If a fine be levied without any originall it is voidable but not void but if an originall be brought and a retraxii
words contrary to the simple intent as Tully saith in his Offices is calumnia quaedam ninis callida malitiosa Juris interpretatio ex quo illud summum jus summa injuria a kind of a calumny and malitious interpretation of the law from whence that saying proceeded the rigor of right is the extremity of injury As he putteth the example of one had made a truce for 130. daies with his enemy and in the night he plundered and depopulated his possessions because he said the truce was for daies and not for the nights which Cicero accounteth meere injury and injustice and admonisheth men to avoid the like interpretation of the law and to observe the intent of the words and certainly words are but testimonialls of the intent and therefore Ployd f. 107. b. It is said it is the offices of Judges to take and expound the words as the common people doe use them to express their intent according to their intent As a Lease was made for life and that after his decease the tenements redibunt to a stranger it shall be taken as a remanebunt because to that purpose it was there used and therefore by 18. E. 3. f. 28. It shall be taken by way of remainder So a lease for life the reversion to a stranger shall be taken as a remainder for the reason abovesaid 30. M. 1. ante 157. vide ibidem plura in Hills case And so Ployd f. 291. a. Where a covenant cannot be performed according to the words it shall be performed according to the intent as neere as may bee as in the case of Littleton where a man maketh a feoffment upon condition that the feoffee shall make an estate in speciall taile to the Feoffor and his wife and the heires of their bodies if the Baron dieth before the estate made the estate shall be made as neere to the condition as may be to wit to the feme for life without impeachment of wast the remainder to the issues in taile according to the first limitation and if the feme be dead then the feoffee ought to give the lands to the issues and the heires of the bodie of his father and his mother engendred If the words be performed and not the intent the agreement is not performed Ployd f. 291. b. according to the rule of the civill law leges non ex verbis sed ex mente sunt intelligendae lawes are not to be understood and construed by the words but by sense and meaning of the parties as where the Defendant was obliged upon condition that if his feoffees of his Mannor of W. should grant to the Plaintiff an annuall rent of forty shillings out of the said Mannor that then c. and he had three feoffees and two of them granted to the Plaintiff the rent There the words of the condition were performed for the feoffees had granted the rent and yet he had not performed the condition for all the Justices there held that all the feoffees ought to have granted the rent and so it should be sure for there the third might have the land by survivor and he might avoid the rent and also more then two parts of the Mannor were not charged with the rent and so the intent is not performed though the words be M. 22. H. 6. f. 10. So if a man be bound to enfeoff me of the Mannor of D. and he maketh a feoffment ro another of parcell of it and then enfeoffeth me of the Mannor he hath performed the words but yet he hath not performed the intent which was that I should have had all the Mannor as it then was H. 3. H. 7. 4. So a remainder was limited to B. Si ipse vellet in-habitare residens esse if he would dwell and bee resident on the land during the terme there it is taken that if he was resident one week during the terme he had performed the words of the condition but not the intent for the intent was that hee should be resident all the terme 4. E. 6. ante 23. So an Abbot was Parson Emparsonee of a time c. and he had annuity for the time of which no memory runneth in right of the Parsonage and he as Abbot without naming himselfe Parson brought a Writ of annuity and counteth upon a prescription in him and his predecessors Abbots and the prescription traversed and found for the Plaintiff there every word of the Verdict is true and yet attaint lay against the Jury because he brought the Writ in the name of the Abbey and so claimed the annuity whereas he was not seised by that forme but as Parson and for that he did not claime as Parson they ought not to have found the issue with him and so the words of the Verdict and the intent of the Verdict did not agree in one M. 10. E. 4. f. 16. Ibidem in Chapmans case It is not requisite alwaies that the agreement shall be performed according to words because the intent is performed which is the principall point of the agreement Ployd f. 295. a. b As if a man be bound to pay a lesser summe upon a day certaine if I pay the summe before the day the condition is performed H. 10. H. 7. 24. So if the condition be in a Mortgage that I pay the money at such a place if I shall pay it at another place and the Mortgage accept of it it is well enough for the value is the effect So if a feoffment be made upon condition that if the feoffee doe not pay the Feoffor such a summe at such a day that then the feoffor shall enter If the feoffee before the day make a feoffment over and at the day doth not pay the summe there the second feoffee at the day may tender and pay the summe though the agreement was no other but that the first feoffee shall pay the summe Litt. vide ib. plura If a man make a feoffment on condition to enfeoff two in fee at such a time and before the time one dieth the feoffment ought to be made to the survivor and his heires onely for the intent which appeareth in the condition Ployd f. 345. 4. H. 7. f. 127. Every one who groundeth an Act with discretion hath an intention in the inception and neither beginneth any thing but to some end and in the progression hath the same intent and so in the consummation so as the same intention is the cause of every part and therefore the intention is principally respected in all humane acts and especially in those which concerne the disposition of our estates and in feoffments and grants A feoffment by deed of a Mannor with an advowson appendant and no livery made the advowson passeth not yet an advowson may pass without livery but the intention and the meaning was that the Mannor and it should pass together Finch Nomot 58. A bargaine and sale of Land and a reversion by deed not enrolled the reversion passeth
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
granteth a lease for life or yeares he hath the reversion in him which he may lawfully grant but the Law requireth in this case that he be not deceived in his estate and to grant the possession of the Land whereas he hath but a reversion and therefore when he granteth the Land notwithstanding that it be in lease for life or for yeares of Record or otherwise the grant is good When the words of a grant are not sufficient ex vi termini to passe the thing granted but the grant is utterly void there any non obstante cannot make the grant good vide ibidem plura Davis f. 75. In the case of Commendams By our Law what is wrong and malum insert and against the Law of God cannot be dispensed with and therefore 11 H. 7. 12. a. It is said that the King cannot dispense with any that doth nusance in the High-way and if he doth it that such a dispensation is void 8 H. 6. 19. The King cannot grant that if a man doth a trespasse to me that I shall not have an action against him or that a man shall be his own Judge and therefore it is often said in our Books that the prerogative of the King shall doe no wrong to the Subject 13 E. 3. 8 So though the King may dispense with a Statute which prohibiteth an indifferent thing to be done yet he cannot change the common Law by his Patent 37 H. 8. Patent 110. And as to the Pope it is often said in the Bishop of St. Davis case that the Bulls of the Pope cannot change the Lawes of England Notwithstanding the word non obstante was first invented and first used in the Court of Rome which as Sir John Davis observeth f. 69. b. was a mischeivous precedent to all the common Weales of Christendome for the temporall Princes perceiving that the Pope dispensed with his Canons in imitation of him have used their prerogative to dispense with their penall Lawes and Statutes and whereas before their Lawes were religiously observed as the Lawes of the Medes and Persians Davis f. 77. The Law which ordaineth that the first benefice shall be void by the acceptance of the second may be dispensed with and so is it of the Law that ordaineth that when a man is made a Bishop that his other Benefices shall be void as Thrining saith 11. H. 4. 213. b. For those Laws were made by Ecclesiasticall policy and therefore the same policy may dispense with those Laws permissio non est officium legis quia lex ad fert necessitatem Reg. I. C. permission is not the office of the Law for the Law bringeth necessity As by the Statute of W. 2. Lands were permitted to be entailed and usury also by many Statutes yet can they not properly be termed Lawes and Statutes Confessus in judicio pro judicato habetur quodam modo sua sententia damnatur Coke l. 11. f. 30. He who confesseth in the Court of Justice is holden adjudged and in a certaine manner is condemned by his own mouth or sentence And therefore the Attainder in confession is the strongest attainder may be for the vehement presumption it hath of truth for it should be absurd to say that he hath not done such a Felony since the party himselfe hath confessed it to the distruction of him and all his off-spring And the case of confession is a stronger case then guiltinesse by verdict for though he be found guilty by verdict yet may he be innocent and therefore at the common Law he may have his Clergy and make his purgation but if he had confessed the offence upon record he shall not have his Clergy at the common Law because he could not make his purgation when the Court findeth his confession on Record for in the intendement of the Law he cannot contrary his expresse and voluntary confession in Court vide ibidem plura In praesentia majoris cessat potentia minoris Manhood in Ployd f. 498. a. In the presence of the greater power the lesser power ceaseth All the Justices agreed that the Ordinary the Patron and King ought to agree in making an impropriation and the Ordinary is the principall aagent in it in that he hath the spirituall jurisdiction and the act of appropriation is a thing spirituall and what the Ordinary of the Diasis might doe that the Pope used to doe in the Realme as supreame Ordinary and was a long time suffered so to doe and did use to make appropriations without the Bishop which were taken to be good and the Bishop never contradicted but accepted them as good for in the power of the greater the power of the lesser ceaseth and in all Ecclesiasticall jurisdiction his authority was taken as absolute and did bind the Bishop as his inferior in all acts now such authority and jurisdiction as the Pope used within this Realme was acknowledged by the Parliament 25. H. 8 and other Statutes to be in the King and that he might lawfully doe all that the Pope was accustomed and used to doe within this Realme and from him it descended to his Son Edward who as superame Ordinary did make the appropriation of his own authority and jurisdiction without the Bishop and did put these words in his Charter authoritate nostra regia ecclesiastica qua fungimur vide ibidem plura Vectigal ab origine ipsa jus caesarum est patrimoniale lex imperatoria Custome from the beginning is the right and patrimony of Caesar and Emperors and are called vectigalia a mercibus evectis invectis from Merchandizes exported and imported for custom is a prerogative and benefit to which Kings and Princes are by the Law of Nations intitled And as the Law Nations were before Kings so Kings were made by the Lawes of Nations ex jure gentium originem suam traxerunt Baldus and as soone as they were made Kings presently the Law of Nations did annex the prerogative of custome to their severall Crownes so saith Baldus cum creatus fuerit Rex omnia regalia ei conceduntur competit omnibus regibus jus imponendi vectigalia when a King was created all royall incidents were granted to him and the right of imposing customes appertained to all Kings Wherein the rules of our Law as Davis observeth f. 12. are agreeable with those of the imperiall Law for we also say that custome is the ancient inheritance of the Crowne of England and that inheret sceptro and is as ancient as the Crowne it selfe and is due by common right and by prescription and not by the grant and benevolence of Merchants or by Act of Parliament Dier 165. b. And whereas by the imperiall Law Primaria vectigalium causa ac ratio fuit ut plana tutaque mercatori praetereunti itinera praestarentur Plin. l. 19. c. 4. The first cause and reason of customes was that plaine and safe voyages should be exhibited and assured to the Merchants and in our
the day of payment make his Executors and 〈…〉 dye and the heire enter into the Land as he ought c. the Feoffor ought to pay the monies to the Executor because the Executors as he saith l. 5. f. 99. a. represent the person of the Testator for all Goods and Chattels but if the condition upon the Mortgage be to pay the Mortgagee or his heires the mony c. and before the day of payment the Mortgagee dyeth the Feoffor cannot pay the mony to the Mortgagee but the payment ought to be made to the heire for expressum c. and the Law shall never seek out a person when the parties themselves have appointed one for designatio unius est exclusio alterius the appointment of one is the exclusion of the other But if the condition be to pay the mony to the Feoffee his Heires or Executors then the Feoffor hath election to pay it either to the Heire or Executor Coke com ibidem It is a sure ground in the Law expressum facit cessare tacitum Davis 45. in the case of Tenures and therefore the expresse reservation in Letters Patents excluded the reservations and implication in Law as if the King in his Letters Patents reserveth no tenure it shall be a capite tenure but if another tenure be expressed that shall prevaile as Coke l. 6. f. 6. where in a Patent the words of the Tenendum were Tenendum de nobis per servittum unius rosae pro omnibus servitij and wheras it was objected that no tenure can be without fealty yet in this case fealty that is an incident to all services shall be admitted to stand with the words and that then the tenure so expresly reserved was so compleate that it might well exclude the Knights service tenure which otherwise the Law would have implyed Davis Ibidem where it was also resolved that although the expresse tenure be void yet no tenure by implication of Law shall arise against the expresse tenure of reservation And so in the case of a void Habendum which standeth upon the same reason it was adjudged in B.R. between Higs and Crosse 33 and 34 Eliz. which in Bucklers case is cited by Coke l. 2. f. 55. Tenant for life maketh a Lease for years and after granteth the reversion to A. Habendum from a day to come for life after the day the Lessor for years atturneth in that case the Habendum is void and that void Habendum maketh void the whole Grant and excluded the implication of Law in the Premisses and no Estate shall pass by implication of Law in the Premisses against the express limitation of the partie in the Habendum Davis ibidem A man maketh a Lease rendring rent and doth not say to whom the rent shall be paid this by implication shall be to the Lessor and his Heirs But if the words be to the Lessor the Heir shall not have it Dyer 45. 12 Eliz. 3. c. So as an Estate by implication shall be controlled by an express limitation But if I grant to another a rent which I have in fee the grant shall be for life but if I say further Habendum after the death of I. S. there all shall be void Ployd 52.156 So if the King granteth lands by Letters Patens Habendum from a day to come there the whole grant is made void by the Habendum coke l. 5. f. 93. Barwicks case He in the reversion for life gtanteth his Estate Habendum after Michaelmas and after Michaelmas the Tenant attornes yet resolved the grant is void though if there had been no Habendum it had been good by the Premisses of the Deed coke f. 2. c. 55. Davis f. 26.27 Coke l. 7 f. 41. b If the Father by Deed indented in consideration of a hundred pounds paid by his son covenanteth to be seised to the use of his son there no use shall be raised to the son if the Deed be enrolled by the statute of 26 H 8. c. 10. for that it is in the nature of a bargain and sale and that which is expressed shall cause that which is implied to cease ibid. Coke l. 4. f. 8. a. in Nokes case It was resolved by the whole Court that an express Covenant doth qualifie the generality of the Covenant in Law and restraineth it by the mutuall assent of both parties which shall extend to no further then the express Covenant Quia clausula generalis non refertur ad expressa because a generall clause implyed in Law hath no reference to an express and particular Covenant in deed Yet Quadam tacita habentur pro expressis As if the Father Tenant by Knights-service enfeoff his son and heir within age it is not necessary to aver by collusion for it is apparant Ployd Winbichs case and 27 H. 8. Dacres case 33 H. 6. 14 c. So if I covenant to stand seised to the use of my Wife Son or Cosin that shall well raise a use without any express words of consideration for sufficient consideration appeareth because paternall love and affection appear If in a Lease the express Covenant is that the Lessee and his Executors shall repaire the house demised This shall not excuse the Assignee who by an implyed Covenant in Law adherent to the Estate is tied to repair it Coke l. A Warranty in Law is not distroyed by an express Warranty as if a man lease for life rendring rent and further bindeth himself and heirs to Warranty there the express Warranty shall not take the Warranty in Law but he may choose which he pleaseth Coke l. 4. f. 81. a. vide ibidem plura Lex neminem cogit ad impossibilia Coke com f. 231. b. l. 5. f. 75. a. The Law compelleth no man to impossibility If a Deed remain in one Court it may be pleaded in another Court without shewing forth for the Law doth not compell any one to impossibilities ibidem If a Lease be made upon condition that the Lessee dwell upon the lands demised the lease being for forty years and he dieth at the end of ten years yet the Executor shall enjoy the land because the condition is become impossible Et nemo tenetur ad impossibilia Dod. No man is bound to impossibilities 37 38 Eliz. If a man make a Lease for years of woods and it is covenanted that the Lessee shall leave the woods in as good plight as it was at the time of the Lease made and during the term the woods fell down by suddain tempest the Lessor shall not have an action of Covenant because it is impossible the Lessee shall perform it Perk. f. 142. b. Coke l. 1. f. 98. a. Coke com f. 206. a. If the condition of a Bond be impossible at the time of making the Condition the Condition is void because impossible and the Bond good As if a man be bound in an Obligation c. with Condition that if the Obligor doth go from the Church of S. Peter
the poor and the twenty pounds to the Queen and therefore doth the Statute of 3 Jac. c. 4. give a more speedy remedy for the said twelve pence yet shall they not be punished but upon one of them Yet when the latter affirmative Statute is contrary to the precedent Statute in matter the former abrogateth the latter as by the Statute of 33 H 8. c. 23 it is enacted that if any person being examined before the Councell of the King or three of them shall confess any Treason misprision of Treason or Murther or be to them vehemently suspected he shall be tried in any County where the King pleaseth by his Commission and after by the Statute of 1 2 P. M. c. 10. it was enacted That all trialls hereafter to be had for any Treason shall be had according to the course of the Common Law and not otherwise That latter act and though the latter words had not been had abrogated the first because they were contrary in matter But that doth not abrogate the Statute of 34 H. 8. c 2. of the triall of Treasons beyond the Seas notwithstanding the words are in the negative because it was not contrary in matter for it was not triable by the Common Law Dyer 132. Stanf. 89. 90. So the Statute of 1 E. 6. of Chanteries being in the affirmative doth alter the Statute of H. 2. c. 41. which giveth a Cessavit cantaria also in the affirmative for the one is contrary to the other in matter vide plura Coke l. 9. f. 63. a. But whensoever Lawes are contrary in quality that is where the first is a materiall or express affirmative and the latter an express or materiall negative and when the first is a materiall or express negative and latter affirmative there the latter Law doth abrogate the former As the Statute of 5 E. c 4. which prohibiteth every person to use or exercise any craft mystery or occupation unless he hath been an Apprentice for seven years doth alter the Common Law by which any one may in any manner worke in any lawfull Trade without any service precedent for without an Act of Parliament no man can be restrained to worke in any Trade Coke l 11. f. 54. a. in the Taylors of Ipsiches case And to conclude to this Argument with the generall ground given by Sir Edward Coke l. 1. 11. f. 67. a. That for that Acts of Parliament are established with such gravity and wisdome and the universall consent of all the Realme they ought not through any strained construction out of the generall and ambiguous words of a subsequent Act be abrogated as where the Statute of 16. R 23 c. 5. enacteth that all the Lands and Tenements of any one attainted in a Praemunire shall be forfeited to the King in the case of one Prudgion Pasch 21. Eliz. being tenant in taile of certaine Lands and Tenements who was attainted of a Praemunire the question before all the Judges of England was whether the estate taile was a bar or no and it was resolved by all the Justices that those generall words had not repealed the Statute de donis conditionalibus but that onely he shall forfeite them for his life and that the issue in taile should inherit vide ibidem plura Lex non patetur fractiones divisiones Statuum Coke l. 1. f 87. a. The Law will not suffer fractions and divisions of estates As if a man make a lease for life upon condition that if he doth not pay twenty pounds that another shall have the Land that future limitation is void Ployd f. 25. c. M. 18. H. 8. 3. And if after the Statute of 1. R. 3. before the Statute of 27. H. 8. A man had made a Feoffment to the use of one for life or in taile and after to the use of another for life or en-taile and after to the use of another in fee they in the Remainder might not make a Feoffment nor grant their estates by the generall words of that act for then there should be a fraction and division of estates which the Law will not suffer vide ibidem plura in Corbets case Coke l. 3. f. 32. b. If a man be seised of a Mannor to which a Leet waife or stray or any other hereditament which is not of any annuall value is appendant or appurtenant there by a devise of the Mannor with the appurtenances those shall passe as incidents to the Mannor for in that the Statute enableth him by expresse words to devise the Mannor by consequence it enableth him to devise the Mannor with all incidents and appendants to it and it was never the meaning or the intention of the makers of the Statute that when the Devisor hath power to devise the principall that he shall not have power to devise it that was incident and appendant to it but that the Mannor c. shall be dismembred and fractions made of things which by legall prescription have been united and annexed together Ibidem for the Law will not permit such factions in Estates Coke com f. 147. b. If a man hath a rent-charge issuing out of certaine Land and he purchaseth any part of the Land to him and his heires the whole rent-charge is extinct because the rent is entire and against common right and issuing out of every part of the Land and therefore by purchase of part is extinct in the whole and cannot be apportioned Coke com 309. b. If the reversion be granted of three acres and the Lessee agree to the said grant for one acre this is good for all three and so it is of an Attornement in Law if the reversion of three acres be granted and the Lessee surrender one of the Acres to the Grantee this Attornement shall be good for the whole Reversion of the three Acres according to the grant Apices juris non sunt jura Coke com f. 2 83. b. nimia subtilitas reprobatur in Lege Coke l. 4. 4â— b. The Law of England respecteth the effect and substance of the matter and not every nicity of forme or circumstance and too much subtility is reproved in the Law As it was alledged for an exception in the Enditement that the Enditement was taken before I. S. Coronatore in comitatu praedicto and not de comitatu praedicto or comitatus praedicti and every Coroner of one County is a Coroner in every County of England but not of every County but it was not allowed for the Coroner in the County c. shall in all reasonable intendement be taken for the Coroner of the County and so it is used in the Writ de coronatore elegendo ibidem vide plura Coke l. 5. f. 120. 122. It is a rule in Law that Enditements ought to be certaine but there are three manner of certainties the first is to a common intent and that sufficeth in Bars which are to defend the party and excuse him the second is to a generall
generall words imply no certainty and with that accordeth 21. E. 4. If a man be bound to be nonsued in all Actions that he hath against him in the Common Bench he may say that he hath no action therein otherwise if the condition be particular to wit that he shall be non-sued in a Formedon c. so as that it appeareth that generall words imply no certainty neither do they conclude any person to say that he hath nothing there vide ibidem plura Cok. lib. 8.78 a. Bospols Case In an arbitrament when the submission is generall of all Actions and Demands c. that may well stand with the generality of the words that there was but one cause depending in controversy between them For generall speeches imply no certainty and the awaâ—d for one is good notwithstanding the generality of the words for though there were many matters in controversy yet if one onely was made known to the Arbitrator he may make an award of it For the Arbitrator is in place of a Judge and his office is to determine secundum alligata probata the duty of the parties which are greived and know their particular greifes is to make known the causes of controversy to the Arbitrator for they are privy to them and the Arbitrator is a stranger and every one is to do that which lyeth in his knowledge but when the condition is in speciall and with a proviso and condition that an award shall be made of the premises or words which amount to so much there the Arbitrator ought to make Arbitrement of all or else the award is void Generalibus semper specialia derogant Reg. f. c. Derg 180. Quando charta continet generalem clausulam posteaque descenâ—it ad verba specialia quae clausulae generali sunt consentanea interpretanda est charta secundum verba specialia f. 134. b. in Edward Althams Case Which rule is almost word for word put and agreed of by both parties In. 7. E. 3. f. 10. Margery Mortimers Case to wit where a Deede speaketh by general words and then descendeth to special words if the words special agree with the words general the deed shall be understood according to the words speciall As if a man grant a rent in the mannor of P. to be taken in an hundred Acres of Land parcell of that Mannor with a clause of distresse in those hundred Acres the Rent shall issue out of the hundred Acres onely and the generall words shall be construed according to the words speciall so if a man grant a Rent and go no further those generall words shall create an estate for life but if the Habâ—ndum be for years that shall qualify the words generall 7. E. 3. So if a man give Lands to one and his Heirs Habendum to him and the Heirs of his body He shall have onely an estate tayle and no fee expectant for the Habendum qualifieth the generall words precedent Ployd f. 541. a. A man maketh a Feoffment by Deede to one to have and to hold to him and his Heirs and if it happen that the feoffee dyeth without heire of his body that then the Land shall revert The generality of that gift to him and his Heires shall be corrected by the speciall branch after so as the Donee shall have but an estate tayle 13. R. 2. in Formedon Dyer 261. b. A man seised in fee deviseth all his Lands in one village and in one of the two Hamlets by name and there were two Hamlets in the said Village The opinion of divers Justices was that none of the Lands in the other Hamlet should passe for it is intendable that the intent and meaning of the devisor was that nothing more should passe then what he had expressed A. acknowledgeth a fine of the mannor of P. with an advowson and regrants the mannor with the Appurtenances the advowson shall not passe Temp. E. 1. F. title grants Ployd 173. b. If I give or lease all my Lands to one and stay there he shall have all my Lands in England but if I say further in the manner of Dale there it is now restrained but if the specialty limiteth a thing which is void and so appeareth it is otherwise as if I lease to one all my Lands in Dale which I have by descent of the part of my mother and in truth I have no Lands in Dale which I have by descent of the part of my mother if the Lessor have other Lands in Dale he shall not have those Ployd 160. a. A man giveth Lands to two Habendum to one for life and after his decease to the other and his Heirs the one shall have the entierly for his life onely notwithstanding the Joynture given in the Premisses by the better opinion in terme M. 8. E 3.427 Generalibus sempâ—r specialia insunt Reg. f. c. Specialls are alwayes contained in the generals and the universalls allwayes comprehend the particularâ— Ployd f. 68. a. The plurall number containeth the singular and more and therefore was it resolved by all the Judges That a pretensed right and title was within the penalty of the Statute of 32. H. 8. for the buying of pretensed rights and titles for pretensed rights and titles in the plurall number did containe a pretensed right and title in the singular number And whereas the Statute of 5 R. 2. c. 5. forbiddeth that none make entry into any Lands or Tenements unlesse in case where entry is given by the Law yet if one enter into a Tenement he shall be punished though the Statute speaketh in the plurall number and likewise whereas the Statute of 1. H. 5. speaketh of false Deeds in the plural number yet if one bring but one false Deed he shall be punished by the Statute as it is holden in many Bookes Ployd f. 467. b. The Statute of Gloucester giveth an Action of Waste against him which holdeth for years which is spoken in the plural number yet may it be taken for him which holdeth for a year or half a yeare vide ibidem plura Generalis clausula non porrigitur ad ea quae sunt specialiter comprehenfa Coke l. 8. 118. b. It is a ground and maxime in the Law that a generall clause is not extended to those things which are specially comprehended Doctor Bonhams Case by the Statutes of 10 14. H. 8. it was enactd that no man should exercise the faculty of Physike within the City of London or within seven miles of the said City unlesse he be admitted thereunto by the President and Colledge of the faculty of Physike and there is another speciall clause contained in the said Acts that any who evilly and not well exercise the said faculty c. shall be punished by Fine and imprisonment c. and it was adjudged that the said generall clause that none should exercise the said faculty of Physike unlesse he be admitted c shall not be extended to the speciall clause
for the punishment of fine and imprisonment c. but that it specially shall be limitted to such onely as did offend only in not well executing and using the said faculty of Physike for a generall clâ—â—â—â— is not to bee extended to those things are specially comprehended so 34. Eliz. f. 120. ubi A. seised of the mannor of Stable in O. in the county of S in fee and also of other lands in the said O. in fee suffereth a common recovery of all and declareth the uses by Indenture that the recoveror shall stand seised of all the lands and tenements in O. to the use of him and his wife and the heires of his body and dieth and after his death the wife entreth into the said Mannor by form of the said generall wordes but it was adjudged that those generall wordâ— did not extend to the Mannor which was specially named Coke l. 4. f. 8â— b. Nokes case clausula generalis non refertur ad expressa a generall clause is not referred to those things are expressed as where the Assignee of a Lease shall have a Writ of Covenant upon those wordes demise and grant yet if there be an expresse covenant that the Lessee shall enjoy it without eviction of the Lessor or any claiming under him this expresse Covenant qualifieth the generallity of the covenant in Law and restraineth it by mutuall consent of both parties that it shall not extend to the assignee Clausula generalis non porrigitur ad ea quae antea sunt specialiter comprehensa Coke l. 4 131. l. 4. when the deed at the first containeth speciall wordes and then concludeth in words generall both the wordes as well generall as speciall shall stand as Lands given to one and the heires of his body Habendum to him and his heires hee hath an estate taile and a fee simple expectant for as Dier f. 56. b A deed by wordes subsequent may bee qualified and abridged but not destroyed Dolosus versatur in universalibus generalibus Coke l. 3. f. 8. a. Twins case it is one of the Ensignes of fraude in a Deed of gift if the gift is generall without the exceptions of his apparell or any thing of necessity for it is commonly said that the fraudulent is conversant in generalls Coke l. 3. f. 57. b. Specots case A Bishop ought not to shew a generall cause for the refusall of a Clark as that he is criminosus or non idoneus for they are too generall and the fraudulent is exercised in generalls and therefore so incertaine that no issue can be taken of them as 2. E. 3. f. 6. The heire ought to alledge some certaine cause of refusall whence issue may be taken Generalia sunt praeponenda singularibus it is a rule in the Register that in a Writ the generall shall bee put in demand or plaint before the speciall as the Mesuage before lands the Land before Meadow Meadow before Pasture and Pasture before Wood and Wood before Juncary F. a. b. f. 2. E. Ex verbo generali aliquid excipitur Coke com f. 47. a. An exception is part of the thing granted and in esse as exceptis salvo praeter and out of a generall a part may be excepted as out of a Mannor an acre but not a part out of a certainty as out of 20 Acres one Ployd f. 361. a. A Lease of all my Lands in D. except white acre is void for white acre and a gift of all my horses except my black horse is void for my black horse Coke l. 10. f. 101. b. quando verba statuti sunt specialia ratio autem generalis generaliter flatutum est intelligendum where the words of a statute are speciall and the reason generall the statute is generally to be understood as the reason of the statute of 23 H. 6. whereby it was ordeined that no Sheriff should take any obligation by colour of their office but onely to themselves and upon condition that the Prisoners appeare at the day contained in the writ was for the avoyding of extortion and oppression and therefore is to receive a benigne and favourable construction and that in equity not only a bond but an assumpsit is within the reason of that statute and so was it adjudged 27. Eliz. Trin. in the Kings Bench betweene Danhigh and Hothcot that if a Sheriff or Goaler for ease or enlargement of any who is in his custody doth take a promise of him to save him harmelesse that though the statute doth onely speake of an obligation yet it is in equall mischiefe otherwise as Wray chiefe Justice said the statute should serve for little or nothing Multa transeunt cum universitate quae per se non transeunt Coke com f. 142. a. If a man seised of land as heire of the part of his mother make a gift in taile or a Lease for life reserving a rent the heire of the part of the Mother shall have the reversion and the rent also as incident thereunto for many things passe with the generallity which by themselves doe not pass so if a man hath a rent-seck of the part of his mother and the Tenant of the Land grant a distresse to him and his heires and the Grantee dieth the distresse shall goe with the rent to the heire of part of the Mother as incident and appertenant to the rent for now is the rent-seck become a rent charge Singulare distributive sumptum e aquat plurali Dier 328. b. a singular distributively taken equalleth a plurall as in an assise the Plaint is of two Acres of Land the Tenant pleads two barrs severall for the two Acres at large and the Plaintiffe makes two severall titles at large to wit for every acre one the Tenant pleades let the assise come upon the title in the singular number and the assise found one title for the Plaintiff and the other for the Defendant against the Plaintiff and judgement was given that the Plaintiffe should recover for one Acre and be barred for the other Coke l. 10. Br. Lifiels case A Lease is for one yeare and that if they agree the Lessee shall have the Land for three yeares rendring during the said terme ten pounds yearely this reservation goeth to both termes Propria res est quae solius est sive uni soli convenit Tholoss Syntag. lib. 5. c. 1. A propriety is that which is one mans onely and appertaineth onely to one man Ploid f. 308. b God made man the Soveraigne over all living creatures and gave the rule of them all to man Terram dâ—dit filiis hominum and so men by the endowment of God were made Lords of the earth and possessors of all things in the earth but how much land or things upon the earth one man shall have and how much another God hath leased to man by lawes by them to bee made and provided and by such lawes in every Realme and Country they are provided and divided and every man
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
b. a. If Tenant for years of Land granteth a rent-charge to another for the life of the grantee the grantee shall not have an estate of Frank-tenement in the rent in that he cannot have an estate of Frank-tenement derived out of the Chattell reall but he shall have the rent during all the years though the Lessee had forty years in the Land for terme of life is greater then years and therefore the Grantee shall have all the rent for all the years if he shall live so long And f. 525. b. An Executor cannot devise a terme to another which he hath as Executor for so soone as the Executor is dead the terme is to the use of the first Testator and his Executors have it as Executors to the first Testator and to his use and not as Executors of the last Testator nor to his use for the Executors have them by relation as immediate Executors to the first Testator A. Covenanteth with B. and his Executors to make a lease of white acre before Michaelwas and the Covenantee dyeth before and A. maketh a lease to his Executor the lease shall be to the use of the Testator and assets in the Executor for the Covenant which was the cause of the Lease came to the Executor in right of the Testator and to the same use shall the lease be Ployd f. 292. a. Chap-mans case Cessante causa cessat effectus Ployd 268. Sir John Radcliffs case the cause ceasing the effect also ceaseth An office was found that after the decease of Robert Earle of Sussex and Mary the Countesse his mother certaine Lands did descend to Sir John Radcliff Knight as Son and Heire male of the body of the said Robert engendred and the body of the said Mary and Sir John Radcliff Knight was then of the age of eighteen years before the finding of the office and the Lands were holden of the King and Queene by the tenth part of a fee of Knights service in Capite And when Sir John Radcliff became of full age he prayed his livery but the Court of wards required of him for the Queene the valew of his marriage but it was alleaged that because he was made Knight before the title of the Wardship accrewed and the Wardship was due to the Lord in respect of his imbecility to doe the service of a Knight and that the making him a Knight did admit him able to doe the service of a Knight his body ought not to be in ward for defect of such ability for the cause ceasing the effect also ceaseth and that if his person was not in Wardship no marriage nor value for it shall be due to the guardian and so was it adjudged by the Court contrary to Magna Charta c. 4. which was said to be made for the advantage of the Lords vide ibidem plura Coke Com. 312. a. Cessante causa vel ratione legis cessat lex The cause and reason of the Law ceasing the Law also ceaseth as at the common Law no aid was grantable of a stranger to an avowry because the avowry was made of a certaine person and now the avowry being made by the Statute of 21. H. 8. upon no person therefore the reason of the Law being changed the Law it self is also changed and consequently in an avowry according to that act aid shall be granted to any man vide ibidem plura Coke Com. f. 76. a. Cessante causa cessat causatum As if the Lord after he hath the Wardship of the body and the Lord doth release to the infant his right in the signiory or the signiory descendeth to the infant he shal be out of ward both for the body and the Land for he was in ward in respect he was not able to doe those services which he ought to doe to his Lord which now are extinct for the cause ceasing the thing caused ceaseth and there must be a tenure continuing or no Wardship So if the Conusee in a Statute merchant be in execution and his Land also and the Conusee release to him all debts this shall discharge the executiâ—n for the debt was the cause of the execution and of the continuance of it untill the debt be satisfied therefore the discharge of the debt which was the cause discharged the execution which was the effect Coke Com. f. 76. a. So if the heire female within the age of fourteen years be in ward and after the age of fourteen years expired the Lord by the Statute of W. 1. c. 22. hath two years more to tender her a convenable marriage but if the Lord marry her within the two years her husband and shee shall prefently enter into the Lands for the cause ceasing the effect also ceaseth Coke ibidem 7 5. b. The King granteth an office to one at will and ten pound fee during life pro officio illo now if the King put him from his office the fee shall cease 5. E. 4. 8. b. The executor or husband after the death of the wife guardian in socage shal not retain the Wardship for the guardian hath it not to his owne use but to the benefit of the heire and the executor or husband hath not that affection which the testator or wife had which was the cause that the Law giveth them the Wardship 7. Eliz. 293. b. If a stroke be given the first day of May and the King pardon him the second day of May for all felonies and misdemeanors the party smitten dyeth the third day of May so as this is no felony till after the pardon yet the felony is pardoned for the misdemeanor is pardoned and therefore all things pursuing are also pardoned 13. E. 401. If two coparceners make a lease reserving a rent they shall have this rent in common as they have the reversion but if afterwards they grant the reversion excepting the rent then they shall be Joyntenants of the rent Finch mono. f. 9. It is no principall challenge to a Juror that he hath married the parties mother if shee be dead without issue for the cause of favor is removed 14. H. 7. 2. The King disparking the Parke the office of the keeper is determined and all such offices as are presumed in Law to be for the commoditie of the King as well as the Patentee and if one granteth a Stewardship of a mannor and dismembreth that mannor the office is determined if a corporation granteth the office of a towne-clark and surrendreth their patent to be renewed all their offices are determined Huttons Reports Upon a divorce the woman shal have the goods given in marriage not being spent for the goods were given in advancement of the woman and therefore it is reasonable that shee should have them in that the cause and consideration of that gift is now defeated for the cause ceasing the effect also ceaseth Dyer f. 13. p. 61. Coke l. 5. f. 59. b. Vaughans case The originall cause of the amercement being pardoned the
place and it is not materiall whether any person be there or not and if one place be as notorious as another the Lessor hath election to demand it at which he will and if the Lessor demand it at a place which is not notorious or at the back doore of the house and in pleading alledge a demand of the rent generally at the house the Lessee may traverse the demand and upon the evidence it shall be found for him for that it was a void demand Ibidem and Coke com 201. and 202. b. a. But if a rent be reserved upon the demise to be payable at a place out of the land he that shall take advantage for non-payment of the rent ought to demand the rent at the place where it is limitted to be paid and therefore the opinion in Kelwellies case Ployd f. 70. that he in the reversion may enter for the non payment of such rent without any demand made was utterly denied by the whole Court Ididem and Coke com 202. a. But if there be no place appointed where the rent is to be paid there the rent is to be tendred on the Land Coke 210. a. b. Because it issueth out of the Land but otherwise it is in such a case of a Feoffment or Mortgage for it is not sufficient for the feoffor to be upon the land there ready to pay the money to the feoffee at the day set but he must seek the feoffee if he be then in another place within the Realme of England and so it is if a man be bound in an obligation of twenty pound upon condition that he pay to the obligee at such a day 10. l. that then c. The obligor ought to seek the obligee if he be in England and at the day appointed tender the ten pound otherwise he shall forfeit the twenty pound Coke com ibidem and therefore as he adviseth it shall be good and a sure way upon such a feoffment or mortgage to appoint a speciall place where the money shall be paid and the more especiall it is the more better it is Coke com f. 211. b. And so is it also upon an obligation Ployd f. 71. a. and b. If the obligee be in his own house and the obligor come to him there and tender the mony he shall not be a trespassor for his comming there for in that by the taking of the obligation the obligee was assenting that the obligor should pay him the ten pound by necessity of reason he ought to be assenting to come to him to offer unto him the 10. l. for to come to his person precedeth the offer which he was assenting to therfore ex consequenti he shall not punish him for that thing to which himselfe was agreeing But if he had entred into the house of another man there he shall be a trespassor to the said man if the same man will take him so vide plura ibid. Kedwellies case Exception Though a common person in reversion cannot enter for non-payment of rent without demand yet if the King make such a Lease for yeares rendring rent with such a condition ut supra the King shall take advantage of the condition without any demand because the law which alwaies observeth decorum and conveniency appointeth the subject to attend upon his soveraigne and in such case to make the first act though it be in case of condition which trencheth upon the destruction of his estate But if the King granteth the reversion over his grantee shall not take advantage of the condition without demand for it is a personall prerogative annexed to the person of the King and not in respect of the nature and quality of the land Coke l. 4. f. 23. A So the King maketh a Lease for yeares rendring a rent payable at his receipt of Westminster and after the King granteth the reversion to another and his heires the grantee shall demand the rent on the Land and not at the Kings receipt at Westminster for though the law without expresse words doth appoint the Lessee in the Kings case to pay it at the Kings receipt yet in case of a subject the law appointeth the demand to be on the land Coke com f. 201. b. and Coke l. 4. f. 72. 73. Burroughs case vide ibidem plura Circumstantia loci est testis veritatis certitudinis Ployd 393. a. The place is materiall and is a circumstance and witnesse of truth and certainty As if a man will plead the Letters Patents of the King bearing date at Westminster and indeed they did beare date at another place it seemes in 38. H. 6. by Choke f. 34. by Littleton f. 36. and by Redsham Moile and Prisot f. 37. That for the variance of the place it failed and the Plea shall be adjudged against him So if the King give authority to one to arraigne one upon indictment taken against him at Dale in such a County when indeed the indictment was taken at another place in the same County he cannot arraigne him for the place declareth the certainty what indictment the King intended for it may be there were two indictments of the same matter and thing and the one of them taken in one Village the other in another and by it the expresment of the Village declared the certainty of it Dier 105. a. An outlawry was reversed because it was ad comitat Lancaster ibidem tent and did not say at Lancaster or such certain place to which ibidem might be referred Ployd f. 191. a. The place must be shewne by the Plaintiff where the things were done because the visne should come thence if the things be traversed as H. 6. E. 4. 11. Brooke lieu 55. The place ought to be shewn in the count in debt upon an obligation where the obligation was made and M. 39. H. 6. 32. Brook lieu 45. If an attornement be alledged the place ought to be pleaded where it was made and in such like things of effect that may be traversed the place ought to be shewne where the thing was done for the certainty of the triall and f. 149. b. the place ought to be shewne where the attornement was made if the attornement bee pleaded 15. H. 7. 24. Coke l. 6. f. 47. Dowdales case when the place is materiall as when it is parcell of the issue there the Jurors cannot find the point in issue in any other place for by especiall pleading the point in issue is restrained to a certaine place but when the place is named onely for conformity and necessity and when it is parcell of the issue as in the case of 10. Eliz. 271. in debt against the heire he pleaded rieâ— by descent generally in that case the Plaintiff cannot reply in such generall manner for then no triall can be had of it but in case for conformity and necessity of a triall he ought to name a certaine place as there he did in the Parish and
shall not be intended onely of a person who hath judgement of life but also shall be extended to a person convict by confession or verdict for a person attainted is a person convict and more and every greater containeth the lesser Coke l. 5. f. 115. a. It was resolved in Woods case that if a man tendreth more then he ought to pay it is good enough for every greater containeth in it self the lesser and the other ought to accept so much of it as is due unto him Quando plus fit quam fieri debet vâ—detur etiam illud fieri quod faciendum est in mâ—jâ—ri summa continetur minor when more is done then ought to be done that seemes to be done which was to be done and the lesser sum is contained in the greater Ployd f 349. b. The disseisor maketh a Lease for life and the Disseisee confirmeth the estate of the Disseisor the Disseisee cannot enter upon the tenant for life for his right was to all the estate of the Land and if he be barred of the Fee simple he is barred from the estate for life for every greater containeth in it selfe the lesser An action of battery is brought and the evidence proveth it a maime and well because it is battery and more 31. Ass pl. 1. Omne majus continet in se suum minus 28. H. 8. b. By a pardon of Murder Manslaughter is pardoned and and an attaint supposing a verdict to have passed between two Justices whereas it passed before three good enough A recovery pleaded of three acres where it was of six is good enough Finch Nomot f. 31. Where the Custome is that a man shall not devise his Lands for any higher estate then for life yet if the devise be in fee and the Devisee claimeth but for life the devise is good Dyer 150. b. Vpton by his last will in writing deviseth an entire mannor holden by Knights service in fee and it was adjudged a good will for two parts and not void for all A Quâ—re impedit in the Register is praesentare ad Ecclesiam by this he may count pro tertia parte Coke l. 10. f. 136. b. in Richard Smiths case A Procedendo supposeth an Assize before Stouse and Burton Justices and it was also before Shard and good because three containeth two Ployd Where by the Custome of a mannor a man may demise for life he also may demise to his Wife durante viduitate because the greater containeth the lesser Coke l. 4. Non debet cui plus licet quod minus est non licere Regula I. C. Cui licet quod majus non debet quod minus est non licere Coke l. 4. f 23. a. To whom it is lawfull to doe the greater thing to him it is not unlawfull to doe the lesser As where the Custome of the mannor is that Copy-hold Lands may be granted to any one in Fee-simple there the grant to one and his Heirs of his body is within the Custome for he that may lawfully doe the greater it ought not to be unlawfull but that he may doe the lesser Coke l. 9. f. 48. b. There is a great diversity between an Assignee and a Deputy of an Office the Assignee hath an interest in the Office and maketh all things in his owne name and for whom his Grantor shall not answer unlesse it be in some speciall cases but a Deputy hath no interest in the Office but is but a shadow of an Officer and doth all things in the name of the Officer and for whom his Grantor shall answer and when an Officer hath power to make Assignes he may implicitely make a Deputy for to whom that which is greater is lawfull to him that which is lesse is not unlawfull and by consequence when an office is granted to him and his Heirs by it he may make an assignee and by consequence a Deputy Sicut beatius ita majus est dare quam accipere Coke l. â— f. 57. b. There is a manifest diversity between a receiver and giver of seisin for he that hath a terme for years may receive seisin to the benefit of him which hath the Frank-tenement and all our Bookes are that the possession of a Lessee for years or guardian is a sufficient seisin for him in the reversion but he that giveth seisin is tenant of the Frank-tenement and therefore greater then Tenant for years that receiveth for it is a greater thing to give then to receive and therefore Tenant for years by his payment cannot give seisin to binde him which hath the Franke-tenement vide ibidem plura in Bredimans case Omne magis dignum trahit ad se minus dignum Coke Com. f. 44. a. b. The more worthier thing drawâ—th unto it the lesse worthy the Charter granted by H. 3. in the ninth yeare of his reigne was of force and validity notwithstanding his nonage for that in judgement of Law the King as a King cannot be said to be a minor for when the royall politick body of the King doth meete with the naturall capacity in one person the whole body shall have the capacity of the royall politick which is the greater and the more worthy and wherin there is no minority for the more worthier thing draweth unto it the lesse worthy vid. Coke l. 2. f. 68. in Tooker's case ibidem f. 285 a. Three Joynt-tenants are disseised and they arraigne an assize and one of them releaseth to the disseisor all actions personall this shall bar him but not the other for having regard to him the realty as the more worthy shall be preferred and the greater worthy draweth to it the lesse worthy ibidem 355. b. It was said that upon a recovery had by default in an action of Wast against Tenant in Dower a quod ei de forceat did not lye because in an action of Wast Damages were the principall as most antient and that therefore cleerely no quod ei deforceat did lye but it was answered that the place wasted was the worthier being in the realty then Damages that be in the personalty though more antient omne magis dignum trahit ad se minus dignum quanquam minus dignum sit antiquius a digniori debet fieri denominatio and every more worthy draweth unto it the lesse worthy though the lesse worthy is more antient and a denomination ought to be from the more worthy vide ibidem plura Coke l. 6. f. 43 b When an action is in the realty or mixt with the realty accord with satisfaction is no Plea for accord with satisfaction is a bar for the personalty but not for the realty and when the personall is mixed with the realty it is no bar for the personalty for allwayes the greater draweth unto it the lesse vide ibidem plura in Blâ—kes case Charters are put into a box this alters the nature of the box from being a Chattel and shal go to the heire and as
Plaintiff had a free Chase but he must prove it 10. E. 3. 20. Affirmativum negativum implicat Ployd f. 206. b. An affirmative includeth a negative for every statute limiting any thing to be in one forme although it be spoken in the affirmative yet it includeth in it selfe a negative as the statute of W. 2. c. 4. Of a quod ei deforceat giveth that the demandant shall vouch ac si tenens esset in priori bâ—eve includeth a negative to wit and not otherwise for it hath been taken since it that if the first writ was a Sciâ—e facias and the tenant in the Quod ei de forceat mainteineth the title of it the demandant shall not vouch for he shall vouch ac si tenens esset in priori breve which is as much as to say that he shall vouch ac si tenens esset in priore breve and in no other manner and then in the first writ it being a Scire facias he cannot vouch no more then now So the statute of W. 2. c. 11. Provideth that upon an account ended before auditors assigned and arrearages found upon the accountants they have power to send and deliver their bodies to the next Goale of the Lord the King in those parts and upon it is taken 27. H. 6. f. 8. That the auditor ought to commit him to the next Goale though it be in another County for they cannot vary from the place limited by the statute and is as much as if be had said and in no other Goale So the statute of W. 2. c. 3. giveth a Writ of second deliverance out of the Court where the first replevin was granted and a man cannot have it any where else for where the statute appointeth the place order and forme of suits then they cannot sue in any other place or any other forme if they should it shall be contrary to the purview of the statute So if tenant in taile make a feoffment to himself for life and after to the use of his issue in taile and dieth since the statute of 27. H. 8. The issue in taile shall not be remitted for the statute executed the possession in the same manner and forme as he had the use which is all one as if he should say and in no other manner and form and he had the use as a Purchaser and so he shall have the land here and not be remitted 2. M. 1. ante 114. vide ibidem plura From Division DIvisio est oratio qua totum in partes distinguiâ—ur a division is an oration by which the whole is divided into parts Argumentum a divisione est fortissimum Coke l. 6. f. 60. a. An Argument drawne from division is most strong as there are four sorts of commons common appendant common appurtenant in grosse and by reason of Vicinage but common residentiae commorationis of residence and dwelling is none of them therefore no common Res per divisionem melius aperiuntur Eract And the Civilians per divisionem melius materia intelligit by division things are more cleerely opened and by it the matter is the better undestood and therefore saith Plato speaking in the person of Socrates Si nactus fuisset autem qui bene partiri sciat se iâ—sias tanquam Dei vestigia consâ—cuturum esse if he had obtained a leader who knew well to divide he had followed him as the footsteps of God for by division the Clouds of confusion are cleered and the distinct and true nature of the thing manifested and as Lodovicus all falsehood proceedeth from conformation when through rudenesse we know not how to discerne confused things so as we are deceived with the like or things neare unto them Quae in partes dividi nequeunt solida a singulis praestant Coke l 6. f. 1. Those things which cannot be devided into parts ought wholly to be performed of every one As Lord and Tenant of three Acres of Lands by homage fealty and annuall service of a Spurrier and suit of Court if the Lord maketh a Feoffment in fee or one Acre the feoffee shall hold by homage fealty a spurrier and suit of Court by the common Law for those things which cannot bee devided shall entirely be perâ—ormed by every single person vide ibidem plura of which neverthelesse some certain ones are appointed by the statute to avoid trouble to bee performed by the eldest coheire for â—hâ— rest as homage Dod. 104. En. L. If an Ox be devised to one and the Ox dyeth without any default of the Executor whether is the Skin oâ— Hide of the Ox due to the Executor or the Devisee by the common Law the Devisee shall have the hide for it is parcell of the Ox and the Ox was an entire thing and cannot be divided but by the civill law the executor shall have it because the Ox did perish and was no Ox before the Skin was taken off but the skin was taken off from the Carcasse Fulb. 1. f. 45. b. Frustra sit per plura quod fieri potest per pauciâ—ro 9. H. 7. 24. Coke l. 8. f. 167. a. Division is a resolution of the whole into parts and ought to consist of as few parts as may be for it is vaine to doe that by more may be effected by fewer and therefore the Peripatericks approve a dicotomy or a two fold division non 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not that we should be restrained to make a division alwaies of two parts but that we may divide it into as many as the nature of the thing râ—quireth As Littleton divided rents into rent charge rent-service and rent-seck and very well because it was according to the severall nature of rents and so also did he divide warranties into lineal collaterall and comminenting by disseâ—sin so are actions devided into reall personall and mixt and also the division of fewer parts or more is to be admitted if the nature of the thing so devided doth requiâ—e it therfore were the Ramists so curious in their strict observing of a Dicotomy Coke l. 6. 167. a. If the King by his Patent reciting the estate taile doth grant the reversion and further granteth the lands in possession those severall grants in one Patent are as good and strong in law as if the King by one patent had recited the estate taile and granted the reversion and by another Patent had granted the Lands inpossession for vainly that is done by more which may be done by fewer Ploâ—d f. 191. b. If I release all the right I have in all my Lands in Dale which I have by descent of part of my father and I have no Lands dy descent of part of my father the release is void for he must aver that I had such Lands in Dale by descent of the part of my father But if the release had beene in white Acre of D. which I had by descent of part of my father and I haee no lands by descent of
remainder is appointed in fee to the right heires of I. S. who dieth having a daughter which entreth after the death of tenant for life there the son after borne shall not recover the lands before vested in the daughter as purchased for thereit is a fee simple to which the son after born hath no right for the lands were in none of his Ancestors before But where the estate is an estate taile the son ought to have it per formam doni As if a feme which suffereth a recovery by covin contrary to the Statute of 11. H. 7. is defeated by entry of the daughter tenant in taile the son borne may enter and oust the daughter for that the title in taile is in him because the statute saith he shall enjoy it according to the title which is in taile and therein the common proverb is verified One shall beat the bush and the other have the bird As if a man hath land by descent of the part of the mother and maketh a feoffment on condition and dieth without issue and the heire of the part of the father entreth the heire of the part of the mother may oust him Ployd 56. b. and 57. a. In Wimbish case quod vide Infinitum injure reprebatur Coke l. 6. f. 45. What is infinite is reproved and rejected in law As if a man have a debt by simple contract and taketh an obligation for the same debt or any part of it the contract is determined 3. H. 4. 17. 11. H. 4. 9. and 9. E. 4. 50. 51. So if a man have a debt upon an obligation and by course of law hath a judgement upon it the contract by specialty is changed into a thing of record for if he that recovereth should have a new Action or a new judgement he may have infinite Actions and infinite judgements to the perpetuall charge and vexation of the defendant and he shall not have a new Action or a new judgement for what is infinite is rejected in law So upon every judgement the defendant shall be amerced and if he bee a Duke Marquess Earle Viscount or Baron he shall be amerced 100 l. and so the defendant should be infinitely amerced upon an obligation which shall be mischievous Ibid. And lib. 7. f. 45. b. It was resolved in the Court of Wards by the greater part that a Bill of reviver upon a bill of reviver shall not be admitted by reason of the infiniteness which is rejected in law And lib. 8. f. 16. b. When the first office is found against the King and the melius inquirendum also the King is bound nor to have any melius inquirendum for the same matter because there should be no end of it and that such writs might issue infinitely and infinity is condemned in law Nihil tam conveniens naturali aequitati quam voluntatem domini volentis suam rem in aliam transferre ratam haberi Bracton f. 18. God hath given to man all the land terram dedit filiis bominum So men by Gods endowment are made Lords of the land and what property a man hath in lands by law by the law of God also he hath dominion of it and therefore every man who is the lawfull owner of land may grant to what person in what manner and for what time it pleaseth him for if the land be subject to man then is it subject to his will for the will cometh from the mind which is the principall part of man because it directeth the body and all things he hath and if his land be subject to his will this his will is a sufficient consideration by which his land may pass as his will is and there is no greater consideration then the will Ployd f. 308. b. And nothing is more agreeable to naturall equity then to ratify the will of the Lord willing to transferr his substance and estate over to another And therefore at the common law the intention and will of the parties was the direction of uses for they were onely determinable and to be adjudged by the Chancellor which is the Court of conscience and equity and there is nothing more agreeable to equity then that the will of the Lord or owner and the meaning of the parties should direct the uses 31. H. 16. Tit. subpaena Fitz. 23. A man being ceste que use and having one sole daughter declared his intent and meaning to the Feoffees that after his decease his daughter should have his land and for it question was made in the Chancery whether the limitation of that use made to the daughter might be revoked and in reasoning of that case Fortescue held opinion that if ceste que use had issue a daughter and being sick declared his intention to his feoffee that his daughter shall have his land after his decease and after hee recovered his health he had issue a sonne now saith hee it is good conscience the sonne should have the Subpaena because hee is heire for conscientia dicitur a conset scio quasi simul scire cum Deo that is to know the will of God so neere as reason will and the intention of the parties is to direct the uses according to a conscionable and benigne construction Coke l. 1. f. 100. a. b. vide ibidem plura As a gift in taile may bee made upon condition that tenant in taile may alien for the profits of his issue and good and hee may alien notwithstanding the Statute of W. 2. because in that case voluntas donatoris observatur The will of the Donor is observed Coke com 224. b. If Lands be given to B. and his heires Habendum to him and the heires of his body or if given to him and the heires of his body Habendum to him and his heires he hath estate taile and a fee expectant but if Lands bee given to B. and his heires if B. have heires of his body and if he die without heires of his body that it shall revert to the Donor it is an estate taile and the reversion in the Donor for voluntas donatoris in charta doni sui manifeste expressa est observanda The will of the Donor manifestly expressed in the Charter of the gift is to be observed Coke com f. 21. a. If a common person doth without consideration give to I. S. his goods indefinitely all his goods doe pass 21. E. 4. 25. Alba of Waltams case by Brown and Genny If the King doe grant to one lands ex mero motu and though his Highnesse doth rehearse some consideration in the patent of his grant which is not true as if the consideration bee that whereas the Grantee hath done his Majesty good service on the Sea or beyond the Sea or in his Wars though the consideration bee meerely supposed and therefore no good consideration in Law yet the words ex mero motu doe make the Grant good 26 H. 8. 1. by Fitz. And if a common person doe by deed
one may come to that and therefore Hill 37. H. 8. in the Star Chamber a Priest was branded with an P. and A. in the forehead and put upon the Pillory with a paper written for false accusation vide ibidem pluâ—a Volenti neque injuriam neque vim fieri Reg. I. C. Volenti non fit injuria f. 501. No injury can be done to a willing man If a Parson Emparsonee present another by it he hath disappropriated the advowson and maketh it presentable by his owne Act and therefore no injury A man shooteth giving warning to all and one will goe to the marke and is hurt he is without remedy 18. E. 4. 8. If I am bound to make an house if you prohibit me to come upon the land I may plead this bar 19. E. 4. 2. If there be Lord Mesne and Tenant and the King being Lord the mesne holdeth of the King in capite and the tenant holdeth of him in Socage if the tenant get a release of the meane or fore-judge the meane he shall now hold in capite for volenti non fit injuria and it shall be injurious to the King if he should lose his tenure in capite and should have in place of it a tenure in Socage Dav. 12. P. f. 67. a. If I exchange land with one hath a bad title which is knowne to me and if I know of a fraudulent conveyance and buy the Lands in both those cases the party shall have remedy though they be willing to the wrong Omne actum ab agentis intentione est judicandum Reg. I. C. Coke com f. 49. Affectio tua nomen imponit operi tuo every act is to be judged from the intention of the agent and every affection or intention giveth the name to thy work As if a man letteth lands c. for terme of yeares the remainder over to another for life in taile or in fee if the termor enter before Livery of Seisin made to him then the frank-tenement and the reversion is in the Lessor but if the Lessor and the Lessee come upon the ground of purpose for the lessor to make or the lessee to take livery the entry vesteth no actuall possession in him till livery be made because the purpose and intention giveth the name to the work and therefore if it be agreed between the disseisor and the disseisee that the disseisee shall release all his right upon the land this is a good release and the entry of the disseisee being for this purpose did not avoid the disseisin for his intent in this case did guide his entry to a speciall purpose Val. 19. Eliz. l. B. Coke ibidem The intention and agreement of the mindes of the parties is the onely thing that the law respecteth in contracts and such words as bewray the assent of the parties and have substance in them are sufficient Ployd f. 141. As if one make an obligation and the obligation is endorsed that the obligee doth will and grant that if the obligor shall stand to the arbitrement ordination and judgement of A. and B. that then the obligation shall be void there an exception was taken to the condition for that the words are the words of the obligee and not of the obligor but it was holden by the better opinion that the condition was good for there is sufficient substance of a condition and the intent of the parties appeareth and yet the words are not usuall for conditions for the words of the condition are the words of the obligors 21. H. 6. f. 55. So a grant of an annuity to one pro consilio impendendo is a grant conditionall for if he will not give counsell the annuity shall cease and yet there is not one word of a condition So T. 9. E. 4. f. 19. 22. where debate was for tithes betweene a Prior and another and the composition betweene them was that the Prior should have the tythes without challenge or contradiction of the other and the Prior granted to the other forty shillings yearly and by the better opinion the grant shal enure conditionally so as if the other disturbe the Prior in receiving his tithes the forty shillings shall cease If one make a Lease for yeares by deed and by the same deed covenanteth that the Lessee shall nor be impeached of wast that word Covenant made at the same time amounteth to as much as if he had said Habendum for years without impeachment of wast P. 21. H. 6. f. 7. I. S. did bind himselfe in an obligation of twenty pound and the obligation was Noverint universi per presentes me I. S. teneri obligari W. B. in twenty pound solvendum eidem I. c. and yet the obligation good and the Court held that the Count shall be made solvendum to the Plaintiff for the interest of the parties there appeareth and the certainty of the bond before shall not be taken away by the Solvendum after M. 4. E. 4. f. 23. So if one have a remainder of land in him and he granteth it to another by the name of a reversion of land that shall be a good grant for there the certainty of the land appeareth and then notwithstanding the mis-terming of the thing the law regardeth the intention of the parties and doth judge according to it So if I be bound to pay you at the feast of Saint Michael which shall be in the yeare of our Lord 1555. 20 s. And at the same feast of Saint Michael then next ensuing other 20 s. The law will adjudge the same feast to have the meaning of such or the like feast for it cannot be the same feast if it come after it so the law will take one word for another to supply the intent of the parties vide ibid. Ployd 141 b. Brownings case Carta non est nisi vestimentum donationis Bract. and the intent directeth gifts rather then the words Ployd 160. b. As if a receivor be bound in an obligation to his master to pay to him omnia recepta recipienda all things received and to be received in his office that by it he is not bound to pay all that he might receive but onely that which he shall receive indeed and so his intent shall rather be taken then the word H. 41. E. 3. f. 6. So where a man maketh a Lease of an house so as the lessee may make his profit of the houses within he cannot pull downe the houses or make wast of them for the intent was not such although the words seeme otherwise T. 9. E. 4. f. 22. And it was said to follow the words was summum jus and that Judges ought not to doe it but to follow the intent rather and Ployd f. 161. b. saith that such was the opinion of Bradwell in 14. H. 8. f. 22. That contracts shall be as it is concluded and agreed betweene the parties and as their intents may be taken and that cavillation with
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
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
who made the rescous by action of the case but if he had been a Bayliff of a Liberty it had been a good returne The Prior of St. Joanes had a priviledge from Rome that he shall pay no Tythes for any Land quae propriis manibus aut sumptibus excolitur which is tilled with his owne hands or at his owne charge The Prior maketh a Lease for yeares before the dissolution the King after the dissolution granteth the reversion it was holden that after the terme expired the Patentee should hold it discharged si propriis manibus aut sumptibus excolitur if it be tilled by him or his servants but if he make a Lease to a farmer he shall pay tythes by the Stat. of 31. H. 8. c. 13. Dier Entry with my beast is my entry and so the Plaintiff shall declare upon a clausum fregit 15. E. 4. 29. 1. E. 4. 15. If a mans servant selleth to me cloth and warranteth it to be of a certaine length the action will lie against the master onely and not against the servant and if A do assume to cure B. of a wound and he sendeth his servant to B. to lay medicines to the wound whereby he is hurt and emparied B. shall have an action against the Master and not against the servant Fulb. l. 1. f. 4. 11. E. 4. 6. By Choke and Brian The Chancellor of the Augmentation Court delivered an obligation made to Queene Mary to his Servant to deliver to the Clerks of the Augmentation The Obligor and his servant conspire together and cancell the obligation the Master was held in this case to be chargeable Dyer 161. If a receiver or Bayliff make a deputy the Writ of account shall be brought against the Bayly only because the mony was received to his use 18. H. 8. 2. Fulb. l. 2. f. 43. A lease for years is made and a letter of Attorny to deliver possession to the Lessee if the Attorny deliver possession to the Attorny of the Lessee it is a good possession and pursuing his authority 25. Eliz. The Earle of Leisters Case Yet many personall things cannot be done by another as Sute reall at the Leete Exception or the Sheriffs turne cannot be done by another Fuâ—b l. 25 2. A man cannot excuse himselfe by an Attorny for contempt as for not serving the Kings Processe but in proper person 22. E. 4. 34. An action of debt upon an obligation the Defendant confessed the Deed and said that he had paid the summ to one C. the generall receiver of the Plaintiff who said he was ready to receive the mony and shewed to the Court the acquittance but because he shewed no warrant of the Plaintiff to pay the money to C. the acquittance that was shewed could not be the Deed of the Plaintiff and therefore the Plaintiff recovered his debt and damages 5. E. 3. 63. Fulb. l. 1. f. 4. Quod per me non possum nec per alium Coke l 4. 24. b. What I cannot doe by my selfe I cannot do by another Custome hath so established and fixed the estate of the Copyholder as by the severance of the inheritance the Copyholder of the Mannor is not distroyed for in that the Lord himselfe cannot oust the Copy-hold no more can any one claiming under him doe it for what I cannot doe by my selfe I can do by another vide ibidem the case between Marrell and Smith Coke l. 11. f. 87. a. In the case of Monopolies A patent was granted by the King unto Edward Darcy for the sole making of Cardes who had made a deputy but it was held void to both for in that it was voide to the Grantee because he was inexpert and the grant made void to him he could not make any expert deputy to supply his place for what I cannot doe by my selfe I cannot doe by another Accessorium non ducit sed sequitur suum principale An accessory doth not leade but followeth the principall Co. Com. 152 a. The incident shal passe by the grant of the principall but not the principall by the grant of the incident As a lease for terme of life rendring rent the Lessor granteth a reversion to another the tenant aturneth all the rents and services shall passe by the word reversion but if he grant the rent to another the Reversion shall not passe by it Littleton ibidem a Lease of a Mannor wherein is a Parke and Fish-ponds excepting the game and after the Lessor grants the reversion the Deeres and Fish shall passe as incidents with the reversion A Statute new made gives an action where none lay before the same Processe Judgement and Execution shall be in the same action as was in other cases at the common Law though the Statute say no such thing 10. H. 7. 10. Coke l. 5. f. 21. b. A Parson is bound to a Prior in one hundred pound upon condition that he resigne his Church within a certaine time to the Prior for a certaine pension as they should agree c. and afterwards the Prior and the Parson agreed of a pension of an hundred shillings and yet the Parson refused to resigne and by the whole Court it was holden that he needeth not to resigne untill he was sure of his pension by Deed. Ployd 235. a. When a man hath a thing by reason of another the thing which comes by reason of the other shall be said to be had in the same capacity as the other was which was the cause of it as 41. E. 3. f. 21. If a Bishop having a villain in right of his Church enter into the Land purchased by the villain he shall retaine it as in right of his Church So if the King have a signiory in right of the Crowne and the Tenant seise and disclaime by which the King recovereth the tenancy he shall hold it in right of the Crowne because in that right he held the signiory which was the occasion of the Recovery ibidem Williams case Noxa caput sequitur accessorium sequitur suum principale Reg. I. C. The offence looketh on the head and the accessory followeth the principall Coke l. 4. f. 44. b. Every Felon is either a principall or an accessory and if there be no principall there cannot be any accessory because the accessory followeth the principall and therefore was Vaux held by the Court to be a principall murtherer although he was not present at the time of the receit of the poison and if any other had procured Vaux to do it he had been accessory vide ibidem plura Vaux Case Coke Com. 57. a. b. In the highest and lowest offences there are no accessories but all principalls as in Riots Routs and forcible Entries and in other transgressions vi armis So in the highest offence as crimine laesae Majestatis there are no accessories And by our Law in murther all that be present aiding abetting or comforting him doth the murther are principall offenders though they
diversi desiderantur actus ad aliquem statum perficiendum plus respicit lex actum originalem when to the perfection of an estate or interest diverse Acts or things are required the Law hath more regard to the originall Act vide ibidem Lamperts Case When a man seised of Lands in Fee-simple or Fee-taile generall taketh a Wife to the perfection of her Dower two things are requisite lawfull matrimony and the death of her husband and if baron and feme levy a fine the feme is barred of her Dower because that the intermarriage and seisin are the fundamentall causes of Dower and the death of the baron onely the execution of it for the beginning is the principal part upon which all others are founded and therfore in such case if baron and feme grant a rent by fine out of the Land or make a lease for years rendring rent to the baron and his heires and then the feme recovereth Dower shee shall hold that charge with the rent and with the terme and the opinion of Ployden in Stowells case 373. is not holden for Law as appeareth by Dyer f 72. and in Damports case Dyer 224. it was adjudged to the contrary 2. H. 4. and now common experience without contradiction is against it and so Littleton in his Chapters of conditions f. 83. holdeth that if the Feoffee upon condition taketh a wife the Feoffee may enter for the condition broken and the reason is for that the Law hath a principall regard to the originall and fundamentall cause and yet it may be said that the title of dower is not consummate untill the death of the husband and peradventure the feme might die before the Baron vide ibidem plura So things are construed according to that which was the beginning thereof as one maketh me sweare to bring him mony to such a place or else he will kill me and I bring it him accordingly this is fellony in him 44. E. 3. 14. b. So if he make me sweare to surrender my estate unto him and I doe so afterwards this is a disseisin to mee 14. Ass Pl. 20. One imprisoned till he bee content to make an obligation at onother place and afterward he doth so being at large yet he shall avoid it by duresse of imprisonment 21. E. 4. 68. b. Outlawry in trespasse is no forfeiture of Land as outlawry of felony is for though the not appearing is the cause of the outlawry in both yet the force of the outlawry shall be esteemed according to the hainousnesse of the offence which is the principall cause and foundation of the processe 3. E. 3. 84. A man and feme sole have a villaine and afterwards enter-marry and the villaine purchaseth Land they shall not have lands by intierties but by moieties joyntly or in common as they had the villaine in the beginning Coke l. 5. f. 47. a. In Littletons case upon the generall pardon of 35. Eliz. Whether upon a bill exhibited in the Star-chamber before the Parliament and processe awarded returnable after the Parliament the suit shall be said to be hanging by bill before the returne or serving of the processe and it was resolved that it was because the bill is origo caput sectae the bill is the beginning and head of the suit Cujusque rei potissima pars principium est origo rei inspici debet Coke com f. 298. b. whereof he saith you shall make great use in the reading of our bookes A disseisor hath issue and entreth into religion by force of which the tenements descend to the issue in this case the disseisee may enter upon the issue because the discent of the issue was by the Act of the father and not by the act of God and the Law respecteth the originall Act which is his entry into religion whereas a descent doth not take away entry unlesse it commeth by death Littleton ibidem An escrowe is delivered by a feme sole if she marry or die yet by relation to the beginning it shall be good 14. 4. H. 2. Lessee for yeares is bound to I. S. to make him the best estate he can and afterwards the reversion falleth to him the Lessee shall be discharged of the Bond if he grantteh the estate he had at the bond making 12. H 8. 5. A stranger abateth after the death of the father the son dieth his wife shall not have dower for this abatement shall relate to the death of the father 21. E. 4. 60. An attainder by Act of Parliament hath relation to the first day of the Sessions 35. H. 8. b. Presentment tempore belli is not good to gaine possession from the right patron though the induction was tempore pacis Coke l. 2. Binghams case and l. 11. f. 99. b. And such an usurpation shall be construed to be in time of War A blow given by one at the time of non sanae memoriae though the party die when he is fanae memoriae it is not capitall Ployd D. Hales case So if a man of non sanae memoriae giveth himselfe a mortall wound and becommeth sanae memoriae and dieth he shall not be felo de se Coke l. 1. Shellies case f. 99. b. A man buyeth certaine beasts in Market which were stolen and selleth them out of the market and the Vendee giveth him a Crowne in earnest and afterwards they are brought into the Market and agreeth to his bargaine and payeth all his mony and also payeth toll for the beasts the property is not changed for the bargaine shall have relation to the first communication Dier f. 99. b. Tenant for life upon condition that if the Lessor die without issue the Lessee shall have see the Lessee entereth into religion and the Lessor dieth without issue the Lessee is dereyned he shall never have fee because at the time of the performance of the condition the fee could not vest in him Ployd f 489. a. In case of attainder by verdict for felony it shall have relation to the time of the fact done 30. H. 6. 5. Lands given in franke-marriage reserving a rent the reservation is void untill the fift degree is passed 26. Ass Pl. 66. One hath a Rent charge going out of his wifes Land the grantee leaseth to the husband and his heires the husband shall not have it but it shall inure to him by way of extinguishment onely as seised in right of his wife 14. H. 8. 6. The wife endowed by the heire is said to be immediately in by the husband and if the husband were a disseisor and the heire in by dissent yet the disseisee may enter upon the wife Littleton The executor refuseth the Administrator may have an action of trespasse for the goods taken out of the possession of the Executor supposing they were taken out of his possession 38. H. 6. 7. A Recovery without an originall is void and judgement given in Chancery without originall is void and an outlawry
a directory and doe not bind the estate or interest of the land yet if the fine or recovery or other assurance be pursued according to the Indentures there cannot be any bare averment against the Indentures to be taken in such case that after the making of the Indentures or before the assurance by mutuall agreement of parts was concluded and agreed that the assurance shall bee to other uses but if other agreement or limitation of uses bee made by writing or by other matter so high or more high then the last agreement shall stand for every contract and agreement must be dissolved by a matter of as high a nature as the other was vide ibidem plura in the Earle of Rutlands case Coke l. 6. f. 43. b. Blakes case A writ of Covenant and the breach was for not reparing of the house and the Defendant pleaded accord betweene him and the Plaintiff with satisfaction and though it be regularly true that arbitrement or accord with satisfaction is no plea where the action is founded upon a deed for every thing is to be discharged by a matter of as high a nature as it is obliged yet there is a diversity where the duty accrueth by the deed in certainty tempore confectionis as by covenant bill or obligation to pay a sum of mony there it is a certaine duty and ought to bee discharged by a matter of as high a nature but where there is no certaine duty accrueth by deed but onely a wrong or default subsequent together with the Deed which onely giveth an Action to recover damages as for default of reparations there an accord with satisfaction is a good Plea because the end of the action is onely to have damages in the personalty for the action is not meerely grounded on the deed but also from the deed and the wrong subsequent and generally in all Actions where damages are only to bee recovered arbitrement or accord with satisfaction is a good plea vide ibidem plura Vnum quod que dissolvitur eo modo quo constituitur Nay Max. f. 4. As an obligation or matter in writing cannot be discharged by an agreement by word but by writing and though in abatement as a receipt of part upon a deed it shall not bee admitted without a deed of it 19. E. 4. 1. b. In an annuity growing by prescription rien arreare is a good plea for a prescription is no matter in deed but in an annuity by deed it is no good plea without shewing an acquittance 3 H. 7. 33. An Act of Parliament cannot bee avoid but by Parliament The submission of an arbitrement by deed must be countermanded by deed Things may bee avoided and determined by the ceremonies and Acts like unto those by which they were created Bacon uses c. as Livery and Seisin by entry a grant by claime and charge by discharge and an use which is raised by declaration and limitation may cease by words of declaration and limitation Non impedit clausula derogatoria sine clausula de non obstanâ—e de futuro quo minus ab cadem potestateres dissolvantur a quibus constituuntur Bacon Max f. 67. Acts which are in their nature revocable cannot by strength of words be fixed or perpetuated the law judgeth it to bee idle and of no force to deprive men of that which is most incident to humane condition and that is alteration and repentance As if I make my will and in the end thereof adde this clause Also my will is if I shall revoke this present will or declare any new will unless it bee in writing subscribed with the hands of two witnesses c. that such revoration shall he void any such pretended will to the contrary notwithstanding yet may I by paroll without any writing repeale the same and make a new one So if a statute bee made that no sheriff shall continue in his office above a yeare and if any patent be made to the contrary though it bee with a clausula de non obstante it shall be void yet notwithstanding such a Patent of the Sheriffs Office made by the King with a non obstante will be good in law because it is an inseperable prerogative of the Crowne to dispence with politike statutes and of that kind notwithstanding any derogatory clause 28. E. 3. c. 7. 24. E. 3. c. 9. 2 H. 7. 6. If the Parliament should enact that there should be no Parliament but that the King should have the authority of Parliament and rule by the ancient lege regia it were good in Law quia potestas suprema seipsum dissolvere potest because the highest power may dissolve it selfe Bacon From the matter DEbile fundamentum fallit opus Noy Max. f. 5. when the foundation faileth all goeth to the ground As when an estate to which a warranty is annexed is defeated the warranty also is defeated as if Tenant in taile discontinue and the discontinuee is diseised or maketh a Feoffment upon condition in whose possession a collaterall ancestor of the issue in taile releaseth and dieth the issue is barred but if the discontinuee enter upon the disseisor or upon the Feoffor for the condition broken the issue is restored to his formedon Lit. Coke l. 6. f. 14. a. Burton was deprived for adultery and afterwards by a generall pardon adultery was pardoned and though the deprivation was in force and that he that after the deprivation was admitted instituted and inducted remained Parson yet by force of the said pardon is hee become Parson againe without any sentence declaring the deprivation to bee void for by the pardon the adultery which was the foundation of the deprivation was discharged and by consequence all that was depending on the said foundation is discharged for sublato fundamento corruit opus So if an execution bee sued upon a statute and then the connusee maketh a defeasance upon the statute upon the payment of twenty pound if the twenty pound be paid the execution shall be defeated as well as the statute 20. Assize Pl. 7. If there be a disseisor of Lands in ancient demesne and the Lord confirmeth to him to hold at the common Law the disseisee reentreth now the land shall be ancient demesne again for the estate wherupon the confirmation should enure is defeated 49 E. 3. 8. A Church appropriated to a spirituall corporation becommeth disappropriate if the corporation be dissolved 3. E. 3. 74. b. Licet tenenti vetus opus reficere non novum facere Febl 2. f. 51. A Tenant may repair an old work but not make a new one As by our law the Tenant may cut downe trees for the amendment of houses or reparation of them 44. E. 3. 21. and 44. 11. H. 4 32. But if the necessity of a new house commeth in question as to build a Stable or no house be built upon the Land at the time of the Lease the Lessee may not cut downe trees to make a
a difference between inheritances executed and inheritances executory as if Lands be executed by livery they cannot by Indenture of defeasance be defeated afterward or if the disseisee release to a disseisor it cannot be defeated by Indentute of defeasance afterwards but at the time of the release or feoffment the same may bee defeated by Indentures of defeasance for it is a Maxime in law quae inconunenti fiunt in esse videntur But Rents Annuities Conditions Warranties such like that be inheritances executory may be defeated by defeasances made either at that time or at any time after so is the law of statutes recognisances and obligations and other things executory ib. Agreeable to this rule is the reason of the case put by Bro. judgement 148. That if a Feme suffer a recovery of her joynture against the statute of 11 H. 7. without the assent of him in the reversion and after hee in the reversion releaseth to the recoveror by Fine that assent commeth too late and cannot make the recovery good was once void and for the same reason the consent of the major part of a Chapter must bee done at one time simul semel and not scatteringly or at severall daies vide Davis Rep. f. 48. b. So Pl. f. 135. a. b. A Lease by deed for 11. yeares and in security of the terme the Lessor made a Charter upon condition that if he was disturbed of his terme he should have fee and livery and seisin was made as well upon the one Charter as the other then the Lessee was disturbed and it was adjudged that he should have fee because the Charters were delivered at one and the same time T. 10. E. 3. f. 521. Tempus est mensura motus secundum prius posterius Aâ—ist 4. Phys Time is the measure of motion according to priority and posteriority for as the motion doth measure the place so doth time the motion as a days journey is measured of a day and an houres of an houre and because all contracts and matters of entercourse doe fall within the lists and precincts of time therefore the moments and measures of time should be publikely and familiarly knowne to popular conceits For tempus est mensura rerum time is the measure of all things and as Ployd f. 555. b. the diversity of estates proceeds from the diversity of time for the estate in Land is the time in Land for he that hath a fee-simple in Land hath time in the Land without fine or the Land for time without end so he that hath land in taile hath time in it or the land for time so long as hee hath issue of his body and he which hath an estate in Land for life hath time no longer then that he shall live and so for another mans life or yeares And as the time measureth things so doth the law measure time as by the true computation the lesser yeare consisteth of 865. daies and six houres whereby in every fourth yeare there is die excrescens which maketh that yeare to have 366. daies which is called the greater yeare yet by legall computation a quarter of a year containeth 91. daies half a year containeth 162. daies for the od houres in legal computation are rejected And in the statute de annob Sextil it is provided Quod computetur dies ille excrescens dies proxime praecedens pro uno die that the day excrescent and the day precedent shall be computed for one day so as in computation the day excrescent is not accounted so a month is regularly accounted in law for twenty eight daies and not according to the Solar month nor according to the Kalender unlesse it be for the account of the Lapse in a Quare impedit or the right of the Patron Coke com f. 135. b. And Kellaway 21. H. 7. f. 75. A feast in our law beginneth in the morning and endeth at the night and the naturall day beginneth ad ortum solis and endeth ad occasum solis and so is it taken and adjudged in our Law But the feast by the law of the Church beginneth at noone in the Vigil and lasteth untill the midnight of the next day and the night which maketh burglary beginneth ad occasum solis and lasteth untill the rising of the Sunne for where a man hath broken an house after the setting of the Sun it hath beene adjudged burglary for if the night should begin so soone as the day is ended and last untill the morning of the next day it would be too hard a thing to try c. ibidem In omnibus stipulationibus id tempus spectatur a quo contrabimus Reg. I.C. Paulus 62. ad edictum in all assumpsits and contracts that time is respected from which we contract as a man seised in fee maketh a lease for ten yeares and after selleth the land and taketh it back againe to him and his wife and then the husband and wife letteth it for twenty years reserving a rent the husband dieth the wife accepteth the rent for the first ten yeares by this the second lease is not affirmed for the acceptance of the rent before the lease beginneth and is not due is no acceptance 1. E. 6. 37. Coke l. 5. f. 1. a. b. in Claytons case From henceforth in a Lease shall be accounted from the delivery of the Indentures and not from the computation of the date for from henceforth is all one to say as from the making of the Lease Et traditio loqui facit chartam delivery maketh the deed to speake where a Lease is to begin from the making of a Lease there the day of the delivery shall be taken inclusive and the day it selfe is parcell of the demise but if it be made to begin from the day of the making or the day of the date then the day it selfe shall be taken exclusive and excluded And whereas the statute of 27. H. 8. Of enrolement saith That all such writings shall be enrolled within six monthes after the date of the same writings indented if the writings have date they shall bee accounted from the date but if the date be wanting the six months shall be accounted from the delivery vide ibidem plura In obligationibus in quibus dies non ponitur presenti die debetur Pomponius nulla temporis designatio praesens denotat Reg. I. C. And it is a ground in our Law that when a man 's bound in twenty pound to pay ten pound and no day of payment is limitted the lesser sum is due presently and ought presently to bee tendred 20. E. 4. 8. 21. E. 4. 8. In the case of the Mayor of Exeter by all the Serjeants and of some of the Justices yet by the opinion of Starky the discretion of the Justice shall limit a time having regard to the distance of the place and to the space of time wherein such a thing may be performed for the Obligor is not
f. 13. a. If two four or more men being severally seised of land joyne in a recognizance all their lands must be equally extended because they are in an equall condition and case 26 Assi Pl. 37. Now custome hath created inheretances in copy-holds and that the lands shall be descendable the law doth direct the descent according to the Maxims and rules of the common law as incident to every estate descendable Coke l. 4. f. 22. So now uses have the reputation of inheritances descendable the common law shall direct the descent of those and that there shall be possessio fratris of an use as of other inheritances at the common law 5. E. 4. 7. And of lands in Burrough English the use shall descend to the puisne and now also these uses being turned into estates shall be determined in all respects as estates in possession 23. H. 8. Finch Nomot But this difference is put between inheritances in copy hold lands and inheritances in uses in that such câ—stomary inheritaners shall not have by the Law any other collaterall quallities which concerne not the descent of inheritance which uses and other inheritances at the common law have as tenancy by courtesie or asseâ—s to charge the heire in an Action of debt upon an obligation made by his Ancestor for him and his heirs Coke l. 4. f. 22. a. or descent to take away entry as if a copyholder in right of his wife surrender it to the use of another in see and dieth that shall not be any discontinuance to the feme but that she and her heires may enter Ib. f. 23. Neither shall the feme of customary tenant be endowed unless it be by speciall custome Ib. f. 30. b. and generally copy-hold estates shall not have such qualities which estates at the common Law have without speciall custome Ib. f. 23. a. A Simili from the like NVllum simile currit quatuor pedibus Coke l. 7 f. 34 no like thing runs upon four feet and Coke l. 4. f. 18. b. Nullum simile est idem nothing that is like is the same Sir Gilbert Gerrards case upon an action of slander the Plaintiffe counteth that he was seised of a Mannor c. in fee and that he was in communication to demise the said land to R. E. and that the Defendant not ignorant thereof said I have a Lease of the said Mannor for ninety yeares and that by reason of the said words the said R. E. did not accept of the said Lease to the damage c. The Defendant pleaded that tâ—lis indentura qualis in the Count was alledged came to the hands of the Defendant by finding and it was resolved that that manner of pleading was not a direct answer to the indenture mentioned in the Count for talis indentura is not eadem indentura for no like is the same Eadem simili ratione suadente idem jus statuendum est Reg. I. C. Vbi eadem est ratio ibâ— est idemjus Coke com f. 191. a. It is one of the Maximes of the common Law cited by Littleton that in all cases where there is the like reason there is the like law for reason is the soule of the law and ratio potest allegari deficiente lege and reason may be alledged where the Law is wanting and then as Bâ—actâ—n De similibus ad similia eadem ratione pâ—oâ—â—dendum est From the like unto the like by the same reason we are to proceed and so argumentum a simili iâ— good in law Et quod in uno similium valet valebit in altero what availeth in one of the likes shall availe in the other as one shall recover in value against the heire upon the Ancestors warranty Lands which the heire tooke in exchange for Lands descended 1â— H. 3. rec va 26. for the similitude of the same reason A Mannor is given by Fine A Scâ—â—e facias lyeth of a tenancy that after escheated to the said Mannor 48. E. 3. 11. If a Mannor descend to an heire within age and after a tenancy escheateth he shall have his age of it in a praecipe of the mannor it shall be assets by descent and he may vouch of this tenancy by reason of a warranty made of the Mannor for the same reason 6. H. 4 1. And for the same reason a Lease for a thousand daies is a Lease for yeares 14. H. 8. 13. And a Lease for years and a release amounteth to a feoffment Brook The Maxime of a Bastard is eigne that the mulier puisne must make an entry upon him or else he gaineth the right yet a continuall claime made by the mulier puisne destroyeth his right for it is all one as if he had entred 14. H. 4. 9. If a man licenceth one to occupy his Land for a yeare this is a Lease for a yeare 5. H. 7. 1. And this is also according to the rule of the civill law ubi est eadem ratio eadem equitas ibi debet esse eadem juris dispositio where there is the same reason and the same equity there ought to be the same disposition of right Coke com f. 10. a. As in Feoffments and grants the word heires maketh an inheritance so doth it in exchanges releases and confirmations which enure by way of enlargement of an estate as also in warranties bargaine and sales by deed indented and enrolled and the like in which the word heires is also necessary because they stand upon the same reason that feoffements and grants doe for where there is the same reason there is the same law Coke com f. 55. 56. If Lessee at will soweth the Land and the Lessor after it is sown before the corne is ripe put him out yet the Lessee shall have the corne and shall have ingresse egresse and regresse to cut and carry away the Corne and if the corne be ripe and ready to cut downe and the Lessor before the Lessee reapeth it enter and putteth out the Lessee without all question the Lessee shall have the corn for by the same reason that he shall have it where he is put out before it is ripe he shall have it where he is put out after it is ripe for where there is the same reason there is the same law A majori minori From the greater and the Lesser IN eo quod plus est semper inest minus Reg. I. C. Omne majus continet in se minus Coke l. 4. f. 46. a. The greater alwaies containeth in it the lesse as whereas by the statute of 3. H. 7. c. 1. It is provided that if Murderers and accessaries or any of them be acquitted upon inditement or the principall is attainted c. the wife or heire to him slaine may have their appeale against the persons so acâ—uitted or against the principall so attainted and that the benefit of his Clergy thereof before be not had It was resolved that the word Attaint of murther in that act
the obligation is good and the Obligee may declare upon a Solvendum to himselfe 4. E. 4. 29. for contraria non possunt simul esse in eodem subjecto Arist 5. Phys contraries cannot be together in the same subject Omnis privatio presupponit habitum every privation presupposeth an habit Coke com f. 341. b. and l. â—0 f. 86. b. To many purposes a Parson hath in effect but an estate for life and to many a qualified fee but the entire fee and right is not in him and that is the reason that he cannot discontinue the Fee-simple that he hath not nor ever had for every privation presupposeth an habit From authority and example ARgumentum ab authoritate firmissimum est in lege an argument from authority is the strongest in Law Coke com 254. a. our Book cases are the best proofes what the Law is and after the example of Littleton Booke cases are principally to be cited for deciding the cases in question and not any privatâ— opinion according to the rule Nulla hominis authoritas tantum apud nos valere debet ut meliora non sequeremur si quis attulerit no mans authority ought to prevaile so much with us as that we may not follow the better whosoever shall alledge it as Littleton here rejecteth the opinion of Newton and followeth the better authorities in Law Coke com f. 383. a. And whereas by the Civil Law as Sir John Davis observeth every Doctors opinion is vouched and cited of them as good authority it must needs breed distractions of opinions and variations according to which sense the logicall axiom is to be taken locus ab authoritate est infirmissimus Boethius An argument from authority is most weake and prevaileth little or nothing in resolving the question as the Poet pressely Nil agit exemplum litem quod lite resolvat to cleere a quaere example stands for nothing whereas our Law arguments are deduced from the strength of cases apt to the purpose and presidents of former times founded on the discourse of reason and consideration of the wisest and sagest Judges and are no inartificiall arguments as ipse dixit or teste me ipso but are drawn out of the termes and bowells of the issue by arguments and conclusions of reason Nullum exemplum est idem omnibus Coke com 212. a. 317. b. No example is the same to all and therefore it is the best meanes in all assurances to take counsell of learned and well experienced men and not onely to trust without advise to presidents for as the Aphorisme holdeth in the state of a mans body nullum medicamentum est idem omnibus no salve is the same to all so doth the rule in the estates and assurances of Lands no example or president is the same to all Periculosum existimo quod virorum bonorum non comprobatur exemplo Coke com f. 81. b. I deeme it dangerous that is not approved by the president of good men and therefore it appeareth how safe it is to be guided by judiciall presidents Littera scripta manet Coke com f. 115. a. A written word remaineth and therefore a record or sufficient matter in writing is a good memoriall whence it is said when we will by any record or writing commit the memory of any thing to posterity tradere memoriae and for this reason it is that regularly a man cannot prescribe a custome against a statute because it is matter of record and is the highest proof and matter of record in Law yet a man may prescribe against an Act of Parliament when by prescription and custome it is saved by an other Act of Parliament Nihil in lege intolerabilius est eandem rem diverso jure teneri Coke l. 4. f. 93 in Slades case There is nothing more intollerable in law then that the latter judgement should contradict the former and therefore 37. H. 6. f. 22. Aske said such Charters have beene allowed in the time of our Predecessors who were as sage and learned as wee and Markham 5. E. 4. f. 41. It is good for us to doe as it hath been used in former times and not to keepe one way one day for one party and another day the contrary for another party The former presidednts are enough for us to follow So 11. E 3. Title Formedon 22. It was holden that ancient formes and manner of presidents are to be maintained and observed and 34. Ass Pl. 7. That which hath not been according to usage shall not be permitted and in 2. E. 3. 29. The ancient forme and order is to be observed and 39. H. 6. 30. The opinion of Prisâ—t and all the Court was that they would not change their use notwithstanding that their opinion was to the contrary and 4. E. 4. 44. All the Justices said we cannot change the course hath been before for it should be inconvenient and it is said 3. E. 4. 1. That the course of Courts maketh a law And therefore all the Justices in ancient times and from time to time being as well in matters of forme as in deciding of doubts and questions and as well at the common law as in construction of Acts of Parliament have given great regard to the ancient presidents and judgements of the preceding judges as Ployd f. 99. b. It was advised by the Court according to the book of 7. H. 4. That an accessary shall not be arraigned as an accessary to one principall untill the other principals may be attainted because it did seeme the better way to the Court to pursue the same order that the Sages before had used And so here in Slades case in respect of the infinite presidents which the Secondary of the Prothonotaries of the Kings Bench did shew to the Court it was resolved before all the Judges of England in the Exchequer chamber that though an action of debt lyeth upon a contract yet the Bargainer may have an Action of the case or an Action of debt at his election Coke ibidem Mos retinendus fidelissimae vetustatis quae praeter consuetudinem morem majorum fiunt neque placent neque recta videntur frequentia actus multum operatur The ancient manner of the most faithfull antiquity is to be retained and what are contrary to the custome and use of the Elders doe neither please nor seem right and the frequency of acts worketh much Coke l. 4 f. 74. and therefore it was there resolved by the chief justices Popham Anderson and by Pyriam chiefe Baron and other justices that the ancient and usuall elections of Mayors Bayliffs c. by a certaine selected company of the principals of the commonalty and Burgesses commonly called the common councell c. were good and well warranted by their Charters and by their lawes also Multa ignoramus quae nobis non laterent si veterum lectio nobis fuit fâ—miliaris Coke l. 10. 73. We are ignorant of many things which would not be
disseisin the law is removed from land to land beyond these degrees which writ is given by the statute of Marlebridge c. 18. though before at the common law in respect of such long possession the demandant was driven to his writ of right vide ibidem plura Vis unita fortior Ployd f. 307. a. united force is more strong as in Sharingtons case There are three causes premised to make and raise uses in lands the first is his affection for the provision of his males the second is his affection that the lands he had should remaine in his blood the third is his Brotherly love he bore to his brother whereas every one of them had beene sufficient to raise uses yet when all are put together they are of the greater force for forces united are more strong Conjunctio maris feminae est de jure naturae Coke l. 7. f. 13. Arist 1. Polit. Nuptias non concubitus sed consensus facit Vlpian consensus non concubitus facit matrimonium Coke com f. 33. a. In matrimony there is a conjunction both of the bodies and the mindes and in contracting matrimony the consent of the mind obtaineth the chiefe and substantiall parts and corporall copulation the second and therefore is it said that the consent and not the copulation maketh the marriage for every denomination is from the greater and a woman by the common law cannot consent before she is of the age of twelve yeares nor a Man untill the age of fourteen yeares and these are called annos nubiles because at that age either of them may disagree from a former marriage Coke ibidem for a marriage infra annos nubiles underneath the marriageable yeares is inchoate and imperfect to all purposes except her dower and accordingly was it resolved in Ambrosa Gorges case Coke l. 6. f. 40. a. Who being married and her husband dying before she was of the age of ten yeares was notwithstanding the former marriage adjudged to be in ward to the Queen because the former marriage was no marriage before consent and they could not consent ante annos nubiles for the consent and not the copulation maketh the marriage And therefore is matrimony defined by Britton to be assemblee del home feme alieur deux volunts a conjunction of a man and woman according to both their wils f. 246. And which as Bracton saith l. 1. c. 5. fit per mutuam voluntatem for their mutuall consent is the efficient and necessary cause of marriage and therefore a marriage enforced contrary to the will of either party is unnaturall and illegall as Kelway 19. H. 7. 52. b. Where the case is that Margaret the now wife of Keble brought an action of trespasse against Vernon to which the defendant said that he heretofore at the Church of S. in the said county tooke the Plaintiff to wife and there were married according to the lawes of the Church and demanded judgement if action to which the Plaintiff said that those espousalls were made by menaces and duresse of imprisonment and against the will of the said Plaintiff in another county and prayed her damages and after great debate whether the espousalls were avoidable by duresse or no Frowick said that he had seen the bookes and that it seemed cleerely that the espousals were well avoided by duresse and the replication vide ibidem plura And which also seemeth to be the resolve and determination of all nations for for it Romulus himselfe was upbraided to wit for forcing the Sabine Virgins against their wils to marry the Romans and was declared by his successors the Roman Authors to be a barbarous act and a crime equivalent to a rape as Propertius l. 2. El. 6. Tu criminis author Nutritus duro Romule lacte lupae Tu rapere intactas docuisti impune Sabinas Thou hardy Romulus nurs'd by brutish care And Wolvish milk was so fierce to dare To snatch the Sabine Virgins from their Sires And force them to the nuptiall of their friendes desires A Savage crime unpunisht And by Virgill more fully Raptas sine more Sabinas That is ravished contrary to the custome of all nations for in that age when Rome most flourished the customes of the Romans were the lawes of all nations as Claudian l. 4. Stil Armorum legumque parens quae fundit in omnes Imperium primique dedit cunabula juris Rome by the power of Armes and lawes doth sway The spacious universe and did wisely lay The Plat-forme and the grounds of law and right And therefore not long after by the Romane civill law the consent of the espoused parties was ratified by an oath which being but a contract was called sponsalia de futuro which also in our law at this day is of great force for by it a precontract is a sufficient cause of divorce a vinculo matrimonii Coke com f. 285. a. Vir uxor sunt quasi unica persona quia caro una sanguis unus Cok com f. 187. b. The husband and wire are but one person in law Littleton because they are one flesh and one blood as the Scripture saith and as the Philosopher are by nature conjoyned As if a joynt estate be made to the husband and wife and to a third person the husband and wife shall have one moiety and the third person the other moiety because the husband and wife are but one person in law so if an estate be made to the husband and wife and to two others the husband and wife shall have but the third part Lit. If an estate be made to a villaine and his wife being free and to their heires they have severall capacities the villaine to purchase for the benefit of the Lord and the wife for her owne yet if the Lord of the Villaine enter and the wife survive she shall have the whole land because there was no moieties between them 40. Ass Pl. 7. If a woman marry with her obligor the debt is extinct and she shall never have action against the Obligor because the suit against her husband by inter marriage was suspended and therefore being a personall action and suspended against one it is discharged against both 21. H. 7. 29. h. So is it If a feme sole baile goods to one and marry with the bailee they are the bailees good so it is if the wife buy goods of one 33. E. 3. If husband and wife purchase lands to them and their heires and the hsband alien the land c. she shall recover the whole in a cui in vita after his death and the warranty of one of them or his Ancestors is a bar of the whole against them both 39. H. 6. 45. 21. R. 2. Judg. 63. And for the same reason the husband cannnot enfeoff the wife but upon a feoffment made unto her by a stranger he may deliver seisin unto her by a letter of attorney for thereby he giveth nothing himselfe Perk. 40. If a
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
entire and whereof no division can be made by metes and bounds a woman cannot be endowed of the thing it selfe yet the woman shall be endowed thereof in a speciall and certaine manner whereby shee may have satisfaction as of a Mill a woman shall not be endowed by metes and bounds nor in common with the heire but either shee may be endowed of the third tole-dish or of the whole Mill by every third moneth and so of a villaine either the third dayes worke or every third weeke or moneth So a man shall be endowed of the third part of the profits of stallage of the third part of the profits of a Faire or of the third part of the profits of the Marshalsey of the third part of the profits of keeping of a Park of the third part of the profits of a Dove-house and likewise of a third part of a Piscary by the third Fish or the third cast of the Net or the third Presentation to an advowson and a Writ of Dower lyeth for the third part of the profits issuing out of the custody of a Goale of the third part of the profits of Courts Fines and Heriots and a woman shall be endowed of tithes and the surest endowment of tithes is of the third sheafe for what Land shall be sowen is uncertaine Exception But in some cases of Lands and Tenements which are divisible and which the heire of the husband shall inherit the wife shall not be endowed as if the husband maketh a Lease for life of certaine Lands reserving a rent to him and his heires and after taketh a wife and dyeth the wife shall not be endowed neither of the reversion because there was no seisin in Deed or in Law of the free-hold or the rent because the husband had but a particular estate therein and no Fee-simple Coke com f. 32. a. vide ibidem plura Impossibile est unum corpus in duobus locis esse simul it is impossible for one body to be at two places at one and the same time Pop. Rep. 58. 3. 4. Eliz. As if a man make a lease of two Barnes rendring rent and for default of payment a re-entry if the tenant be at one of the Barnes to pay the rent and the Lessor at the other to demand the rent and no body be there to pay it yet the Lessor cannot enter for the condition broken because there was no default of the tenant he being at one Barne for it was not possible for him to be in two places together and Popbam Walmestâ— and Fenner said that also perhaps that the tenant had not money sufficient to pay it at either of the places but it is sufficient for him to have and provide one rent which cannot be at two places together ibidem Jura naturalia sunt immutabilia Bracton l. 9. c. 23. Coke l. 7. f. 15. b. The Laws of nature are unalterable as if a man have a ward by reason of a Signiory a signiory and is outlawed he forfeiteth his wardship to the King but if a man have the ward-ship of his own son or daughter which is heire apparent and is outlawed he doth not forfeit this ward-ship for nature hath annexed it to the person of the father 33. H. 6. 55. In the same manner maris faminae conjunctio est de jure naturae the conjunction of a man and a woman is of the law of nature as Bract. l. 1. c. 33. Dr. and Student c. 31. doe hold now if he that is attainted of felony or treason is slaine by one who hath no authority or executed by him who hath authority but pursueth not his warrant in this case his eldest son can have no appeale for he must bring his appeale as heire which being ex provisione hominis he loseth it by the attainder of his father but his wife if any he have shall have an appeal because she is to have her appeale as his wife which she retaineth notwithstanding the attainder because the conjunction of man and woman is by the law of nature and therefore it being to be intended of true and right matrimony is indissoluble and this is proved by the book 33. H. 6. f. 57. So if there bee mother and daughter and the daughter is attainted of felony now cannot she be heire to her mother for the cause aforesaid yet after her attainder if she killeth her mother this is parricide and petit treason for yet she remaineth her daughter for that is of nature All which accord with the rule of the civil law jura sanguinis nullo modo dirimi possunt the lawes of consanguinity and the lawes of blood can no way be broken and therefore the corruption of blood taketh away the privity of the heire which is nomen juris and not the privity of the son which is nomen naturae as if an attainted person be killed by his son this is petty treason for the privity of the son still remaineth but if a man attainted be murdered by a stranger the eldest son shall not have the appeale because the appeale is given to the heire for the youngest sons shall not have it 36. H. 6. 57. 58. 21. E. 3. 17. If the son be attainted and the father covenanteth in consideration of naturall love to stand seised of Land to his use this is a good consideration to raise an use because the privity of naturall affection remaineth So if a man attainted have a Charter of pardon and be returned on a jury betweene his son and I. S. the challenge remaineth for he may maintaine any suit of his son though the blood be corrupted If a villaine be attainted yet the Lord shall have the issues of the villaine borne before or after the attainder for the Lord hath them jure naturae as the increase of a flock Bacons Maxims f. 49. and 50. vide ibidem plura If the father be slaine the son shall have an appeale of it for it is a loss to the son to lose the father and the common law giveth the appeale to the son before any other for the earnest intent of revenge which the law supposeth to be in him against the offender for the killing of him and that the son by presumption had the more great love and affection Ployd ibid. f. 304. b. And from thence Bromly said that it was an ancient usage when a felon was found guilty in an appeale of murder that all those of the blood of him was murdered should draw the felon with a long cord to execution which was grounded upon the loss that all the blood had by the murder of one of them Ployd 406. b. Ed. 6. 3. The father being impleaded made a feoffment to his eldest son and heire apparent hanging the suit and the King brought a writ of Champerty against the father and son and by the opinion of most the action was not maintainable because by any law the son is to aide the father and
est haeres viventis and the remainder is onely good upon this contingent if I. S. dieth during the life of the lessor Coke com f. 378. a. But if lands be given to A. and B. so long as they joyntly together live the remainder to the right heires of him which dieth first and warranteth the land in forma praedicta A. dieth his heire shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heire of A. have the land by descent vide ibidem 378. b. Justum non est aliquem ante natum mortuum facere Bastardum qui toto tempore suo pro legitimo habebatur Coke l. 8. f. 101. a. b. It is not just to make any one a Bastard borne before marriage being dead who all his life time was accounted legitimate For by the law of England if such a Bastard which the law termeth Bastard eigne doth continue possession in peace that is if the mulier make no entry for the Bastard eigne or continuall claime and so dieth in peace his issue is become right heire and will bar the mulier because he was legitimate by the lawes of the holy Church For though the subsequent marriage doth not make a Bastard legitimate quoad consuetudinem regni as â—ract phraseth it in regard of the custome of the Realme yet quoad sacerdotium in respect of the Canon law it doth and in this case of legitimation which in law is so precious and of so great estimation the law respecteth neither infancy or other defects in the mulier but preferreth legitimation of blood before any benefit of temporall inheritance and therfore the law saith that by the death of Bastard eigne in peace his issue is become right heire and by consequence the mulier is barred and the descent doth not onely take away the entry but the right also and therefore descent in this case shall be a bar to right as descent of services rents reversions expectant upon an estate taile shall bar the right of the mulier 14. E. 2. Bastardy 26. but not the entry or claime of the disseisee But if a Bastard eigne dieth without issue so as the land doth descend the mulier shall have it ibidem and if the Lord by escheat entreth this shall not bar the mulier because no descent Coke com 244. If there be Bastard eigne and mulier puisne and the father maketh lease for life reserving rent and the bastard eigne receiveth the rent and dieth having issue this shall barr the mulier Coke com f. 15. a. If a man hath issue a son being a Bastard eigne and a daughter and the daughter is married the father dieth and the son entreth and dieth seised this shall barre the feme covert and the descent in this case of services rents reversions expectant upon estate or for life whereupon rents are reserved c. shall bind the right of the mulier but the descent of these shall not bind them that right have to an Action Coke com f. 244. a. So if the Bastard dieth seised and his issue endoweth the wife of the Bastard the mulier cannot enter upon tenant in dower for his right was barred by the descent ibidem If the Bastard eigne entreth into land and hath issue and entreth into religion this descent shall bar the right of the mulier ibidem If a man hath issue two daughters the eldest being Bastard eigne and they enter and occupy peaceably as heires the law shall not adjudge the whole possession in the mulier so as if the Bastard had issue and died her issue shall inherit and if they make partition that partition shall binde the issue for ever Coke com 244. a. b. And such a Bastard being impleaded or vouched shall have his age If a man hath issue a Bastard eigne or mulier puisne and the Bastard in the life of the father hath issue and dieth and then the father dieth seised and the son of the Bastard entreth as heire to his Grand-father and dieth seised this descent shall bind the mulier ibidem b. If the Bastard enter and the mulier dyeth his wife being privement with a Son and the Bastard hath issue and dyeth seised the Son is borne his right is bound for ever but if the Bastard dyeth seised his wife enseint with a Son the mulier entreth and the Son is borne the issue of the Bastard is barred ibidem 244. a. If the bastard eigne entreth and the King seiseth the Land for some contempt committed by the Bastard for which the King receiveth the profits of the Land and the Bastard dyeth and his issue upon petition is restored to the possession the mulier barred for ever But when the King seiseth for a contempt of the Father c. if the issue of the Bastard eigne upon petition be restored for that the seisure was without cause the mulier is not barred for the Bastard could never enter but the possession of the King in that case shall be adjudged in the right of the mulier Coke ibidem f. 245. b. Bastardus nullius est filius Littleton Coke com f. 203. a. aut filius populi Coke l. 6. f. 6. A bastard is the Son of none or the Son of the people according to the common report Cui pater est populus pater est fibi nullus omnis Cui pater est populus non habet ille patrem To whom the people Father is to him is Father none and all To whom the people Father is well Fatherlesse we may him call For as the civilians pater est quem nuptiae demonstrant he is a Father whom the espousalls and nuptialls shew so to be And therefore if a wife have a bastard it shall not be a villaine or if a villaine have a bastard by a woman and marrieth her the bastard is no villaine because he is nullius filius though some hold the contrary as Bracton and Britton for in both cases the issue at the common Law is a bastard quasi nullius filius Coke com f. 123. a. And though a bastard be a reputed Son yet is he not such a Son in consideration whereof an use may be raised because in judgement of Law he is nullius filius Dyer 374. And for the same reason where the Statute of 32. H. 8. of wills speaketh of children bastard children are not within that statute and a bastard of a woman is no child within that Statute where the mother conveyeth Lands unto him Dyer 313. Qui ex damnato coitu oriuntur inter filios non computantur Coke com f. 3. b. Who are borne of condemned or unlawfull copulation are not to be reckoned among children as a man maketh a lease to B. for life the remainder to the issue male of B. and the heires males of his body B. hath issue a bastard Son he shall not take the remainder because
the Counsellor what he should write who took paper and ink and writ notes breifly of his said will and every legacy that he had then declared and also the names of the Executors and went home to his house and immediatly with his own hands did write the last will and testament of B. and when he had written it he came againe to the house of the said B. with the said will to read it unto the said B. but then the said B. was dead and therefore the Counsellor delivered the said will to the Executor of B. who proved the same and after the wife of B. did enter into the tenements devised to her by the said will and the heire entred upon her and upon the generall issue it was the cleere opinion of all the Justices that it was a good will in writing according to the Statute of 32. H. 8. And as in Feoffments Grants Uses and Wills the intent shall be observed so every Statute ought to be taken according to the intent of those that made them where the words are doubtfull not uncertaine according to the rehearsall of the Statute Ployd f. 10. a. b. As in 4. E. 4. there was an information in the Exchequer that one shipped certain sacks of Wooll and had not found sureties according to the Statute of 14 E. 3. C. ultimo to wit to bring plate of Silver of two marks for every sack of Wooll and to take two marks of coyne againe for the bullion and there were two Statutes alledged to bar the said finding of sureties to wit 36. E. 3. C. 11. Where it is recited that the Commons of the Realme had granted to the King a great subsidy of every sack of Wooll for three yeares in consideration of which the King by the same Statute granted that after three years nothing shall be taken of the Commons but onely the ancient custome of halfe a marke of every sack c. and that also by the Statute of 45. E. 3. c. 4. It was established that no imposition or charge shall be put on Woolls other then the custome and subsidy granted to the King without assent of Parliament and if any were it should be repealed and holden for nothing but it was adjudged that the two last Statutes were not to discharge the bullion but onely the great subsidies and great charges upon Wools after the three years and the intents of the makers of the two last Statutes were not to discharge the bullion for all things within the generall words shall not be taken as the purview of the Statute but such thing as the makers of the Statutes meant so as the intent of the makers is judged by the words and shall abridge the generalty of them So the Statute of Wast is if any one make wast in Land which he holdeth ex dimissione c by lease yet if his estate be ex legatione by legacy he shall be punished by equity and the intent of the makers of the act So the Statute of Quia emptores terrarum restraineth men to make tenures of themselves yet there where the words are that every one shall hold of the Lord Paramount secundum quantitatem terrarum according to the quantity of their Lands it is taken and ought to be understood secundum valorem terâ—a according to the value of the Lands vide ibidem plura And Ployd f. 57. b. It is an erudition in our Law that where the termes and letter of any Statute be obscure and difficult to be conceived there we ought to resort to the intent of the makers of the Statute vide ibidem plura Where the intent appeareth the Law will include words which are not apt from their proper and common signification to the intent Ployd 154. a. As if the Disseisee agree with the heire of the Disseisor who is by discent to confirme his estate and if he make them a Deed by these words Dedi concessi the Land to him and his heirs that cannot enure in his naturall sense for the nature of a dedi is to give one a thing which he had not before but because it cannot enure so it shall enure as a confirmation and so inclineth the word out of his proper signification to the intent and so 17. E. 3. f. 8. It is holden that a Mannor may passe by name of a fee de chivaler for if the intent was that the Mannor shall passe the Law shall adjudge the better to incline the word de chivaler to it and in 10. E. 4. f. 4. Pasche it was held by the better opinion that a man may plead a demise to him of Land for a yeare by the words to licence him to occupy the Land for a yeare and so may one apply a word out of his apt signification to another signification in performance of the intent of the matter And Ployd f. 142. Words shall be construed according to the minds of the parties where they are directed to a speciall intent and those which doe imply and containe the intent of the parties to be conditionall shall be sufficient to make a condition as well as the usuall words And therefore if a man make a Feoffment ad solvendum to pay 20 â— at such a time it is a condition for the matter sheweth that the intent of the Feoffor was to have twenty shillings for the Land So if a man maketh a Feoffment in fee to one to instruct his Son in such an Art it is a condition because the words purport such an intent and yet they are not usuall words vide ibidem plura in Brownings case But Ployd f. 162. b. Exception Though it be the rule of Bract. that words ought to be inclined to the intent yet non estregula quin fallat for one ought to have words apt for the meaning or else the meaning will be void for if a man will bend the Law to the intent of the party rather then the intent of the party to the Law it would maintaine barbarousnesse and ignorance to the decay of all erudition and diligence for if a man knew that what words soever they are his meaning should onely be thought on he would be more negligent for words and then such an incertainty would rise to discusse what was the meaning that he would bring in great confusion and therefore the phrases of speech commonly declare the intents of persons as if I give you a cup of Wine you shall not have the cup but if I give you an Hogshead of Wine you shall have the Hogshead because the phrase sheweth the intent Ployd f. 86. a. 27. H. 8 27. And therefore we shall see in many cases that the intent shall be destroyed where it accordeth not with the Law as 9. H. 6. f. 45. An Abbot and Covent by deed indented gave a croft to W. in fee and for that guift and grant the said William renunciavit toti communia quam habere consuevit averiorum
this is an accord rather then a contract and upon such accord the thing in recompence must be paid or delivered in hand for upon accord there lyeth no Action Dr. and St. c. 24. f. 104. which accordeth with the resolve in Cok l. 6. f. 43. Blakes case accord with satisfaction is a good bar for the personalty but not for the realty vide ibid. plura An implicite consideration is when the law doth intend a consideration so the Host of any common Inne may detaine a mans horse if he will not pay him Dier 30. And a Taylor may deteine the apparrel untill he is paid for his labour 5. E. 4. 2. Fulb. l. 1. f. 6. Hereunto belongeth contracts in law though not arising from the consent of the parties as he that findeth another mans goods is chargeable by reason of the possession to him that right hath so he that receiveth monies to ones use or to deliver over to him is chargeable as a receivor so is he that entreth into land and receiveth the profits Finch Nomot f. 181. Exception In an action of debt upon an obligation the consideration upon which it was made is not to be enquired for it is sufficient to say that it pleased him to make the obligation Ployd 309. b. vide ibid. plura Though it be probable that upon every bond there is a contract because he confesseth the debt but if there were none the creditor needeth not to prove no more then the delivery of it And for the same reason the law respecteth matters of profit and interest more then matters of pleasure trust and authority or limitation for matters of profit shall be taken more largely and may be assigned and not be countermanded but matters of pleasure trust and authority shall be taken more strictly and may be countermanded Finch Nomot f 31. As a licence to hunt in my Park or to walke in my Garden extendeth onely to himselfe and not to his servants or other in his company for it is but a thing of pleasure otherwise it is of a licence to hunt kill and carry away the Deer for that is a matter of profit 13. H. 7. 18. A way granted to a Church over my land extendeth not to any other but to himselfe for it is but an easement 12. H. 7 25. b. A reversion granted to two joyntly and the meant attorneth to one it is a void attornement 11. H. 7. 12. b. If the Sheriff be-head one should be hanged it is felony 35. H. 5 58. b. The King licenceth one to alien the third part of his land and he alieneth all it is a void alienation for all 4. E. 6. 68. b. A lease is made to A. and B. for their lives A dieth B. shall have all during his life for it is an interest but if a lease be made to I. S. during the life of A. and B. there if one of them die the estate is utterly determined for that is a limitation A licence to come to my house to speak with me 9. E. 4. 4. b. or goods bailed over to deliver to I. S. 1. E. 5. 2. or to bestow in almes Dyer 22. or a letter of Attorney to deliver seisin Perkins all these may be countermanded before they be done because they be matters of trust Bur if I present I. S. to a Church I cannot afterwards vary and present a new for a kind of interest passeth out of me 14. E. 4. 1. So if I deliver an obligation as an escrowe into a strangers hand to be delivered to the obligee upon condition performed I cannot recall it for the obligee is as it were a party and privy to the delivery Perk. 19. b. Nemo tenetur prodere seipsum Ployd f. 32. b. The Law will not enforce any one to shew that which is against himselfe As if a man grant to one an Annuity pro consilio impendendo the Grantee shall have a Writ of Annuity without shewing that he hath given him Counsell for the shewing of it is not for his benefit and the deniall Counsell goeth in defeasance of the Annuity which ought to be shewen by the Plaintiff because he shall have the benefit of the defeasance M. 39. H. 6. f. 22. So in 15. H. 7. f. 1. It is holden if an Annuity be granted to one untill he be promoted to a benefice he shall have a writ of Annuity and shall not shew that he is not advanced to a benefice for that goeth in defeasance of the Annuity which must be shewen by him who shall take advantage of the defeasance but there it is holden that if he had granted that if the party had first done such a thing that then he shall have an Annuity that there he ought to shew the performance of the thing in his count to enable him to the Annuity in that the condition precedeth the estate and enableth him to to the estate and so the diversity vide ibidem plura in Colthirsts case Nemo tenetur turpitudinem suam detegere Reg. I C. No man is bound to bewray his own shame and crime and therefore the Law is that if a man for feare or simplicity will confesse himselfe guilty of a Felony yet the Judges must not record that confession but suffer him to pleade not guilty Finch Nomos f. 29. Accusare nemo se debet nisi coram Deo Vasques no man ought to accuse himselfe but before God and therefore no man ought to be enforced to sweare against himselfe before man and the reason thereof is given by Coke l. 4. f. 9. 5. Slades case Jurare in propria persona est saepenumero in hoc seculo praecipitium diaboli ad detrudendas miserorum anim is ad infernum to sweare in his own person is oftentimes in this world the precipice of the Devill to cast downe the soules of miserable men into hell and therefore in debt or other action where wager of Law is admitted by the Law the Judges without good admonition or due examination of the party doe not admit him to it and for this reason Coke is of opinion that where one may have severall action to wit an action upon the case upon an assumpsit or an action of debt wherein the Defendant may wage his Law it is better and lesse mischeivous to bring an action upon the case then an action of debt for now experience proveth that the consciences of men grow so large that the respect of their private commodity doth rather induce men and principally those who have declining estates to perjury according to the censure of the Satyrist Jures licet Samothracum Et nostrarum aras Juvenall contemnere fulmina pauper Creditur atque deos Swear by our Altars and the Gods of Wonder For gaine the poore will scorne them and Joves thunder And therfore by the Civil Law Rejicitur pauper pro teste a poor man is excepted against for being a witness though in our Law he is a sufficient witness
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
yeare and the right descendeth to the heire within age he shall be bound to that yeare commenced in his Father and his nonage shall not availe him there because his Father was of full age Ployd 372. a. So non-claime of a villaine of an infant by a yeare and a day who hath fled into ancient demesne shall take away the seisure of the infant And if an infant bringeth not an appeale within a yeare and a day he is barred of his appeale for ever for the Law respecteth more liberty and life then the priviledge of infancy If the King be seised of Lands and the Land descend to the successor this shall bind an infant for that the priviledge of the infant in this case holdeth not against the King Coke com f. 246. a. Though it be regularly true that no laches shall be adjudged in infants for not entry or claime to avoid descent yet laches shall be accounted in him for not performing a condition annexed to the State of Land for the laches of an infant for not performing a condition annexed to an estate either made to his Ancestor or himselfe shall bar him of the right of the Land for ever as if either of them be enfeoffed reserving a rent and for default of payment a re-entry the laches of either of them in not paying the rent shall disinherit either of them for ever But if a man maketh a feoffment in fee to another reserving a rent and that if he pay not the rent within a month ne shal double the rent and the feoffee dyeth his heir within age and the infant payeth not the rent he shall not for this laches forse it any thing for that the infant is provided for by the Statute non current usurae contra aliquem infra aetatem existentem Merton C 31. An infant is impleadable in Law and for his contempt shall be punished as a man of full age as an outlawry returned against an infant is good and not erronious so as he hath passed the age of fourteen years 2. H. 5. Dyer 104. b. and 3 H. 6. An infant was forced to answer upon breach of a prohibition in an estreapment An infant is bound by any Statute Law if he be not expresly excepted in it as in fore-judger recovery in Cessavit and fines with proclamations Doctor Student c. 45. 147. And that if he had not been excepted in those Statutes they should have bound him an infant prayeth to be received and it is traversed he shall find sureties of the meane profits as an heire of full age Dyer 104. b. An infant under the age of fifteen cannot wage Law either for a debt or default of any reall action Office of Exec. f. 346. If an infant be garden of a prison and suffereth a prisoner to escape he shall pay the debt because the Statutes are generall and by that reason he may by a penall Statute loose his Goods Doct. and Stud. C. 46. 147. If one enter into a freehold of an infant with his consent this is a disseisin because an infant cannot consent to an entry An infant under one and twenty cannot be a Bayliff receivor for want of skill or ability nor yet sworn in any Enquest or Jury and is uncapeable of a Stewardship of the Court of a Mannor in possession or reversion or any office concerning the administration of Justice Coke com f. 3. b. 157. a. And not capeable to performe grand Serjeanty at the coronation ibidem 107. b. Actus non facit reum nisi mens fit rea Coke com f. 247. b. The act doth not make one guilty unlesse the mind be guilty and therefore if an infant under the age of discretion commit an act amounting to a Felony shall stand free from the attainder and punishment incident to a Felon but if he be of the age of discretion though he be not of full age he shall suffer as a felon and regularly the age of discretion accounted by the Law is fourteen yeares and therefore shall such an one incur the like attainder os felony as one of full age Office of Executor f. 244. and Coke com f. 247. b. But non est regula quin fallit for one of much lesse yeares having attained the maturity of discretion if he commit any felonious act shall suffer as a Felon as it was resolved in the time of King Henry the seventh in the third yeare of his reigne f. 16. touching an infant but of the age of nine yeares who killing another boy of the like age with a knife and then hiding the slaine boy and excusing the blood found upon him by saying that his nose had bled it was held by the Judges that he was to be hanged as a Felon his such nonage notwithstanding and by King Ina's Law puer decem annos natus surto conscius arguatur an infant of the age of ten years shall be attainted of theft if guilty thereof but Doctor and Student applyeth an infants discretion to the knowledge of the Law so that if an infant doe a murther at such yeares as he hath discretion to know the Law he shall have the punishment of the Law as if he were of full age and this is by a maxime in the Law for eschuing of murthers and felonies and so it is of trespasses cap. 46. f. 148. If a dumbe person bring an action he shall plead by procheine amy Finch Nomot It was a time when Idiots and mad men and such as were deafe or dumb were disabled to sue because they wanted reason and understanding but at this day they all may sue but the suite must be in their names and it shall be followed by others Coke com f. 135. b. A man that is borne dumb may make a grant by delivery of his hands or signes and a man borne deafe and dumb may make a guift if he have understanding and though it be an hard matter that a man shall have understanding without hearing yet there are diverse such persons as have understanding by their sight and a man borne dumb and blind may have understanding but a man borne dumb deafe and blind cannot have understanding Perk. f. 6. Furiosus furore suo punitur Coke com f. 247. b. The Law favoreth a mad man by reason of his disability in criminall causes and because he is amens sâ—ne mente without his mind and discretion he shall not suffer for any felonious fact for the intention is the forme of Felony that is if it be done felleo animo with a bitter and mischeivous mind and therefore is he punished onely with his madnesse there are foure sorts of mad men the first is an Idiot which from his nativity by a pertuall infirmity is non compos mentis 2. is he that by sicknesse or other accident wholly loseth his understanding 3. A Lunatick who hath sometimes his understanding and sometime hath not aliquando gaudens lucidis intervallis and is called non compos mentis
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
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
quae quidem diaturnitate temporis efficit L. 1 de repub f. 2. ut nonnulla toleranda esse videantur que contra jus boni aequi esse videantur we are to yeild something to custome which certainly by long continuance of time doth effect that some things may seem to be tolerated which seem to be against the rule of right and equity so Moses tolerated and suffered the Jewes libello repudii by a bill of refusall to forsake their wives though the indissoluble bond of matrimony was ordained of God and this dispensation as our Saviour saith was permitted for the hardnesse of their hearts because their hearts through inveterate custome were hardned against that divine ordinance Consuetudo more utentiam approbata vim legis obtinet Bract. l. 3. c. 1. Coke l. 4. f. 21. Consuetudo est altera lex a custome approved by the manner of the users obtaineth the force of a Law and is another Law Arist 1. R. for those things are done by custome as the Phylosopher saith which therefore we doe because we have often done them and when a reasonable act once done was found to be beneficiall and agreeable to the people then did they use and practise it often and so by the reiteration and multiplication of the same became a custome and so being without interruption time out of mind practised for the quiet by the approbation of the people obtained the vigor of a law for as Bo. princep legum Sod de repub l. 1. c. 1. pulus morum magister the Prince is the master founder of laws ordinances and the people of manners and customes Just l. 1. tit 2. which accordeth with the description of Justian quod quisque populus sibi jus constituit id ipsius proprium civitatis est what every people ordaine to be a Law to themselves that is a proper and municipall Law of the City Cicer. in La. Maxima est vis consuetudinis saith the eminent Legist of Rome the force of custome is very great in so much that as by the Law of nature consuetudo est altera natura so by the Law of Nations consuetudo est altera lex for as Coke l. 5. Epist ad lectorem of his own knowledge professeth that at this time all Kingdomes and common Wealths are governed by Laws and that every Nation hath his peculiar and approved Customes which are the most usuall binding and firmest Lawes so as it is said per varios casus artem experientia fecit it may be said per varios usus legem experientia fecit Co. com f. 97. b. There are particular Customes and generall Customes particular Customes are such as are used in some certain County City Towne or Lord-ship and generall Customes are such as are used throughout all England which are the common Law of England In his preface for as Davis the common Law of England is nothing but the common Custome of the Realme and Coke the common Law is nothing else but a common opinion generally received and Finch the common Law is a Law used by prescription throughout the Realme of England Finch Nomot f. 75. Ployd f. 95. a. The common Law is nothing else but common use and the mirror of Justice c. 1. l. 9 The Law is ancient uses warranted by Scriptures and is called the common Law Dav. pref because given to all in generall and to conclude this point with this definition which seemeth to me to include all Custome is a reasonable act iterated multiplied and continued by the people L. 1. R. c. 3. de temps dont memoire ne court time out of minde Aristotle saith injustum est apud omnes praeter consuetudines patrias quicquam agere all Nations hold it unjust to doe any thing against the Customes of the Country which is a principle in our Law that Custome is another Law Ennig Frag. and that we may say with the ancient Roman Poet as he sung of the Romans Moribus antiquis stat resque Britanna virisque The state of England standeth on the ancient Law And though it be jus non scriptum and onely written in the memory of man yet as Sir John Davis it doth far excell our written Lawes namely our Statutes or Acts of Parliament which is manifest in this that when our Parliament have altered In his preface and changed any fundamentall point of the common Law those alterations have been found to be so inconvenient for the Common-Wealth as that the common Law hath been in effect restored againe in some points by other Acts of Parliament in succeeding ages as it is a fundamentall principle of the common Law Quod haereditarium jus omne per feodum simplex transit that all estates of inheritance are fee-simple which the Statute of 13. Ed. 1. de donis conditionalibus intended to limit and to give every man power to create a new estate in taile and establish a perpetuity of his Lands so as the same should not be aliened or letten but during the life of tenant in taile whereupon these inconveniences ensued purchases defeated leases evicted and other estates and grants made upon good consideration avoided creditors defrauded of their just debts and offendors enboldened to commit capitall offences c. who therefore were first barred by common recoveries and then docked by fines 15. E. 3. 14. by Herb. Coke l. 4. Ep. ad lectorem So the Statute of non-claime of 34. E. 3. is against a main point of the common Law whereby ensued the universall trouble of the Kings Subjects and therefore was it altered by the Statute of H. 7. c. 24. Coke ibidem 32. So by the grounds of the Law Lands were not devisable before the Statute of 32 34. H. 8. concerning which dayly experience teacheth us that many subtile and intricate questions arise concerning the construction of Wils to the ruine of many and hindrance of multitudes Coke ibi And it is a politick axiom that the alteration of any fundamentall point of the common Law which is ratified by use and experience is most dangerous and therefore we ought to vote and resolve with all the Earles and Barons in Parliament holden in the twentieth yeare of H. 3. against the Bishops who would have introduced the civil Law Nolumus leges Angliae mutare we will not change the Lawes of England To which purpose I add the asseveration of Cicero ante nostram memoriam terterum morem Frey Cil. de repub ac majorum instituta retinebant excellentes viri before our memory excellent men did retaine the custome of the ancient and the institutes of their elders Optimus legum interpres Consuetudo Co. l. 2. f. 81. a. The best expounder of the Law is custome If land holden by grand Serjanty be aliened without licence it is forfeited by the Common Law because the service of the body cannot be transferred to another 14 E. 3.
sub eo ipse sub nullo nisi tantum sub Deo Bract. l. 1. c. 8. The King is the Vicar and Minister of God upon earth every one is under him and he under none but onely under God and therefore the Lands which are in the Kings possession are free from tenure for a tenant is he which holdeth of some superior Lord by some service so as the King cannot be a tenant because he hath no superior but God for as Coke l. 8 f. 118. It would be against common right and reason that the King should hold of any or doe service to any of his Subjects and therefore all Lands holden of him mediately or immediately Co. com f. 1. and for which reason Cowell thought it not so proper in the Kings case to say that he is seised in dominico suo ut de feodo as if feodum in our Law was taken as it is in the fendall Law onely for the Lands held in Services whereas feodum as Bracton Britton Fleta and Littleton tels us idem est quod haereditas Davis case of Tenures f. 30. Neither can the King be a Joynt-tenant with any though it be of land or other things that he had in his body naturall for none can be equall with him And therefore if two purchase lands to them and their heirs and one be made King they are no more Joynt-tenants but Tenants in Common 3 Eliz 339. Nay Acts of Parliament do not bind him unless they concern the Common-wealth or he be specially named 4. E. 4 21. 1 Eliz. 223. And no man can declare against the King but he must sue by way of Petition Ployd f. 241. b. 18 Eliz 498. He hath the property of all Goods that are nullius in bonis and shall have all Tythes out of Forrests and places out of any Parish for rex est persona mixta cum sacerdote In a Writ of Error upon false Judgment given for the King no Scire facias shall go forth ad audiendum errores for the King is alwaies in Court and that is the cause that the form of Entry is in all Suits for the King in the name of his Attorney generall F.N.B. 21. b. Rex semper praesumitur attendere ardua negotia regni pro publico bono omnium Coke l. 5. f. 56. a. It is alwaies presumed that the King doth attend the weighty and hard things of the Kingdome for the publick good of all And therefore have the Grants of the King a more beneficiall interpretation then the Grants of the Subject that may attend their private Affaires which are alwaies taken more strongly against them As if the King do grant lands to I.S. and his Heirs and in truth I. S. is the Kings Villain that shall not enfranchise the Villain by Implication The same Law is of an Alien born 17. E. 3. 39. The Advowson of Pravondry holden of the King was aliened to an Abbot and his Successors and that the Successors shall hold the Provandry to their own use The King shall seise the Advowson for Alienation in Mortmain and destroy the Appropriation for he shall not be ousted of his right of Advowson by Implication So 2 R. 2. 4. If two be indebted to the King and the King release to one it shall not discharge the other for no prejudice shall accrue to the King by construction or implication upon his Grant more then he truly intended by it ibidem So if a release be made by him of all demands the right of Inheritance shall not be released 6 H. 7. 15. If the King granteth lands in fee upon condition that they do not alien it is good but in all these cases it is otherwise in the case of a common person And in many cases the King who claimeth by a Subject shall be in a better case in respect of the Prerogative incident to his Royall person then the Subject himself by whom he claimeth As if the King have a Rent-seck by Attainder of Treason or by Grant he shall distrain for it not onely in the land charged but also in all his other lands and yet the Subject by whom he claimeth shall not distrain If a Subject have Recognizance or an Obligation and after is outlawed or attainted the King shall seise all the land of the Conusor or Obligor where he himself can have but the Moyety the King shall take advantage of a Condition broken without demand whereas a common person who claimeth under the King cannot re-enter for non payment of Rent without demand made And if the King purchaseth a Lordship of which land is holden by posteriority the King shall have the priority vide ibidem plura in Knights case Davis f. 45. If a common person grant rent or any other thing which lieth in grant onely without limitation of any estate by the delivery of the deed only a Frank-tenement shall passe 17 E. 3. 43. a. If the King grant rent or land without the limitation of any estate the Grant is meerly void for the incertainty 7 Ass pl. 1. and the Grantee shall not be Tenant at Will as it is ruled in the case of Alton Wood. Ployd f. 243. The Grant of the King is taken more strongly against a stranger and more favourable to the King although the thing granted come to the King by purchase or descent Whereas it is otherwise of a common person As a grant of a Mannor by the King the Advowson shall not passe without speciall words So the King may grant a thing in action which another cannot So if the part of an entire thing commeth to the King the Common Law hath given him all As if an Obligation be made to two and one is outlawed the King shall have all the duty So he shall have an entire Horse or Oxe which one who is outlawed holdeth in Common ibidem So Coke l. 9. f. 129. b. Quando jus domini regis subditi in simul concurrunt jus regis preferri debet when the right of the King and the Subject concur and meet together the right of the King ought to be preferred as in Dame Hales case Baron and Feme Joynt tenants of a term for years the Baron is felo de se the Baron shall forfeit all Ployd Com. 262. vide ibidem plura in Quicks case The King may mend his Declaration that term that it is put in p. 13 E. 48. So the King may wave his Demurrer and traverse the plea of another M. 28 H. 6. f. 2. So if the King grant lands in fee with Warranty against all the Patentee shall not have value in recovery without express words to have value So the King may make a Lease to a stranger this reservation is good and the stranger shall distrain for it or have an action of debt after the Lease determined M. 35. H. 6. f. 36. Ployd f. 243. a. So for arrearages of Rent-charge granted to the King he may distrain in all other
affectum tribuit delinquendi minatur innocentes qui parcit nocentibus Coke l. 4. f. 45. a. Evil doings ought not to go unpunished because impunity ministreth a continuall affection of offending and he threatneth the innocent who spareth the Delinquent And Aristotle Pol. 7. Actiones justitiae sunt necessariae in civitate licet non eligibiles Though the actions of Justice that is the sentences and punishments of evill and condemned persons are not secundum se of their own nature eligible yet are they necessary in a City that the City may be the better ruled and saved for as Solon there are two things and tyes by which a Common-wealth is contained and preserved praemium poena reward and punishment and it is truly said Etsi meliores sunt quos ducit amor tamen plures sunt quos corrigit timor Thoughâ— they be the better persons whom the Love of goodness vertue draweth yet there are more whom the fear of punishment doth deter and correct and therefore the wisdome of our Law doth abhor that greater offences should pass unpunished So as that if a man be convict either of verdict or by confession upon an insufficient Indictment and no Judgment upon it given he may again be indicted and arraigned because his life was never in jeopardy and the Law wanteth his end which provideth that no evill Deeds should pass unpunished Coke l. 4. f. 45. a. for as Coke saith l. 5. f. 53 b. Oderunt peccare mali formidine penae The wicked to offend themselves refrain And from the same are scar'd for feare of pain And therefore by the Common Law is the offence of felony so severely punished and though the Judgment against such a Malefactor in that he shal be hanged by the neck untill he be dead yet implicitively he is punished First in his wife that she shall lose her Dower Secondly in his Children that they shall become base and ignoble Thirdly that he shall lose his Posterity for his blood is stained and corrupted that they cannot inherit to him or to any other Ancestor Fourthly that he shall forfeit all his Lands and Tenements which he hath in fee or in tail or for term of his life And fifthly all his Goods and Chattels And the reason was that men should fear to commit Feloâ—y ut poena ad paucos metus ad omnes perveniat that the punishment might be inflicted on few and the feare may come to all But some Acts of Parliament have altered the common Law in some of these points as by the Statute De donis conditionalibus lands in tail were not forfeited neither for Felony nor for Treason but for the life of Tenant in tail And this Law continued in force from the thirteenth year of Edward the first untill the twenty sixth year of Henry the eighth when by Act of Parliament Estates in tail are forfeited by attainder of high Treason but as for Felons the Statute De donis Conditionalibus doth still remain in force so as for attainder of Felony Lands and Tenements in tail are not forfeited but onely during the life of Tenant in tail but the Inheritance is preserved for the Issues but being attainted of high Treason or Petit treason the wife shall not be received to demand her Dower but in certain cases specially provided for Ployd f. 195. Coke com f. 392. a. b. And now the wife of a person attainted of misprision of Treason Murthâ—r or Felony is dowable by the Statute of 5 E. 6. c. 〈◊〉 c. in that case made and provided which is more favourable to the women then the Common Law was Coke ibidem Receditur a placitis Juris potius quam injuâ—iae delicta maneant impunita Bac. Max. f. 51. The Law will dispence with some grounds of the Law rather then crimes and wrongs should be unpunished quia salus populi suprema lex the safety of the people is the supream Law and the safety of the people is contained in the repressing of offences by punishment It is a positive ground that the accessory in Felony cannot be proceeded against untill the principall be tried yet if a man by subtility and malice set a mad man by some device to kill one and he doth so now forasmuch as the mad man is excused because he cannot have any will or malice the Law accounteth the Incitor as principall though he be absent rather then the Crime shall go unpunished 13 Eliz 1. So it is a ground in the Law that the appeal of Murther goeth not to the Heire where the party murthered hath a wife nor the younger brother where there is an elder yet if the wife murther the husband because she is the party Offendor the appeal leapeth over to the heire and so if the Son and Heir murther his Father it goeth to the second brother Ed. 4 M 28. 6. Stanf. l. 2 f. 60. But if the Rule be one of the higher sort of Maximes that are regulae rationales and not positivae then the Law will endure rather a particular Offence to escape without punishment then violate such a Rule As it is a Rule that penall Statutes shall not be taken by equity And the Statute of 1 E. 6. enacteth that those that are attainted for stealing of Horses shall not have their Clergy The Judge conceived that this should not extend to him that should steal but one horse and therefore procured a new act for it in 2 E. 6. c. 33. for it is not like the case upon the Statute of Gloucester that gâ—â—â—â—h an action of waste against him for term of life or years and yet if a man hold for a year he is within the Statute for penall Lawes are taken strictly and litterally onely in the point of defining and setting down the fact and punishment and in those clauses that concern them and not in generall words which are but circumstances and conveyances in the putting of the case and so note the diversity for if the Law be that for such an offence a man shall lose his right hand and the Offendor hath his right hand cut off in the Wars he shall not lose his left hand but the crime shall rather pass unpunished vide ibidem plura Nemo punitur pro alieno delicto Coke com f. 145. b. No man is punished for another mans fault And therefore the Defendant in a Replevin cannot claim property by his Bayliff or Servant and the reason is for that if the claim fall out to be false he shall be fined for his contempt which the Lord cannot be unless he maketh claim himself for no man shall be punished for anothers fault Dyer f. 66. pl. 14. It is the Law of God that every one shall bear his own burthen and receive judgment according to his proper fact and merit whether it be good or evill As whereas the Plaintiff chargeth the Defendants with an escape made and suffered by them they ought not to accuse
Law Wafrages and protection to the passing Merchants of the Sea was one of the principall causes of the payments of those duties Davis ibidem f. 12. And Dyer f. 43. Putteth a difference between a custome and a subsidy and saith that the custome for Merchandizes to be transported out of the Realme is an inheritance of the King and by the common Law and not given by any Statute and that appeareth by the Statute of 14. E. 3. which was the first Statute which maketh mention of any custome and that Statute doth not give or limit any Custome to the King but abridgeth and abateth the custome which was paid for Wool or Leather but a subsidy saith he is a Tax assessed by Parliament and granted to the King by the Commoners during the life of every King only which is made cleer by the case reported by Dyer 1 Mar. f. 92. where King Edward the sixth had granted a Licence to a Merchant stranger to transport all Merchandizes paying pro custumis subsidiis tot tantas denariorum summas quot quantas any english Merchant and Denizen should pay and no more And it was resolved by all the Judges after the death of Edward the sixth the grant was good for the Customes but void tor the Subsidies because the King had an Inheritance in the Custome as a Prorogative annexed to the Crown but in the Subsidies he had an estate only for life by act of Parliament But there is a third kind of duty payable for Merchandizes which are called Imposts or Impositions and these were sometimes rated and assessed by Parliament and then were they of the nature of Subsidies and sometimes were imposed by the Prerogative Royall to support the necessary charges of the Crown and then as the ancient Senator of Rome said Nihil magis justum est quam quod necessarium est There is nothing more just then that which is necessary Davis f. 12. vide ibidem plura The Impost upon Wines was first assessed by Parliament and limited to be paid for certain years which being expired is now continued by Parliament ibidem Opoâ—tet patrem familias vendacem esses non emacem Cato major Davis f. 10. The Master and Father of a Family ought to be a buyer and not a seller By the Grecians Kings were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pastors of the people and Emperors by the Romans Patres Patriae Fathers of their Country for their vigilant and Paternal care they were to take for the preservation and provision for the people for he is the publique Pater familias and is to bend his thoughts to the utility and commodity of the publique and as he is reputed a provident Father of a Family who hath more commodites to sell then occasions to buy so ought he to be a seller rather then a buyer and to provide that more native commodities be exported for sale and the less forrein Merchandizes imported to the buyer And therefore the little custome of forrein Commodties was then accepted of the King when but a little quantity of such forrein Wares were imported into England For in the time of Edward the first and after that in the times of Edward the third the native Commodities of England exported were of greater quantity and value by two parts of three at the least then the forrein Merchandizes imported by which King Edward the third raised so great a revenue out of the Native Commodities of his Dominions that it was noted for good Husbandry in that King for a Father of a Family ought rather to be a buyer then a seller but now it is altogether contrary for at this time the Out-gate is lesser then the In-gate and the forrein Commodities imported are of greater quantity and value by two parts then our native Commodities exported which is a great shame to our Nation to be so enamoured with Mercery and Grocery Wares imported by strangers and to expend upon those more then the value of all the Staple Commodities of our Country which will be in the end the decay and ruine of the Common-weale Davis ibid. Thesaurus regis est pacis vinculum bellorum nervi Coke l. 3. f. 12. b. The treasure of the King is the bond of peace and the sinewes of war And therefore the Common Law preferreth and advanceth the right of the King insomuch as Sir Henry Finch observeth you shall find it to be Law almost in every case of the King that is not Law in case of the Subjects and that with an intention to inhaunce the Kings Treasure and to replenish his Coffers whereby he may in time of peace advance the glory and honour of the Nation and in time of War be enabled to protect the Common-wealth against forrein incursions and invasions for the Kings Treasure is the bond of peace and sinewes of war And therefore in the case of the King which is not so in the case of a common person the body the lands and the goods of the Accomptant or Debtor of the King at the Common Law were liable to the execution of the King Dyer 234. before the Statute of 33 H. 8. c. 38. Coke ibidem and upon the same reason is this principall grounded Quando jus domini regis Subditi in simul concurrunt jus regis preferri debet Coke l. 9. 3. 129. b. when the right of the King and the Subject concur together the right of the King ought to be preferred As in Dame Hales case Ployd 262. Baron and Feme were Joynt-tenants of a term for years the Baron is selo de se he shall forfeit all and yet till the Office it surviveth but after the Office it hath relation before or at the least at the time of the death vide ibidem plura in Quicks case So Ploâ—d f. 263. b. If a Feme take husband and hath Issue and the land descend to the Feme and the Baron enter so that he is intituled to be Tenant by the Curtesie and then the Feme is found an Ideot and her Estate in the land is also found the King shall have the land and if the Feme dye the Baron shall never have the land by Curtesie for by the first possession of the Feme the Baron was entituled to be Tenant by Curtesie and when the Office is found the Title of the King shall have relation also to the first possession and so both the Titles commence at the same time but the King shall have the preheminence and because the Title of the King is in this case to the Frank-tenement of the land in that that he shall have the custody of it during the life of the Feme it shall utterly take away the Title of the Baron which before the Office found was vested in the Baron and therefore after the death of the Feme he shall not be Tenant by courtesie but the Issue shall have the lands out of the hands of the King if it be not
other Souldiers but English L. 1. de repub c. 21. though he had enjoyed and lived in peace for the space of thirty yeares whereas the French were continually conversant exercised in the Italian Warrs yet that prudent King who knew well that he had so ordered the Realme that in the time of peace the feats of armes were practised and military discipline exercised both attempted the conquest of France and fortunately effected it The same Encomium doth he give of Epominondas who redeeming the Thebans from the servitude of the Spartans so instructed them in the forme of military discipline that through their aid though effeminated by service he gave the Spartans a mighty defeate and overthrow for the care and faith of Domestick and Native Souldiers is greater and firmer and for the honour of their Prince and glory of their Country will fight more fiercely ita ut consensu quodum saith Seneca protegendi amandique regem conspirasse intelliguntur so as they are conceived to have conspired with an unanimous consent of protecting and loving their King Whereas mercenaries and strangers are commonly tumultuous and refractory and love not to be commanded Tac. 4. hist Tac. theagiae or governed but as Tacitus omniae ex libidine agunt love to doe what they lift and which is most perilous are perfidious non fide non affectu tenentur are not held nor kept by faith and affection but there faith dependeth on fortune which inclining to the Enemy thither doe they for the most part bend their mindes and forces by which meanes as one truly externo pessundata milite regna and as Curtius insidiosae fiunt illorum domini Kingdomes are sometimes ruined and by treachery they themselves become Lords and Masters of their leaders L. 1. f. 13. Polibius relateth that Carthaginians waging Warr with the Romans had their army mixed with Spaniards French and fugetive Grecians and that having made peace with the Romans intended to dismiss them who amounted to the number of twenty thousand which they perceiving suddenly drew themselves into a military body and made head against the Carthaginians and forced some of their Cities to subject their Forts to their Forces in so much as the Carthaginians were compelled to crave aid of the Romans to resist and repell them through whose assistance Hamilcar circumvented and inclosed them in narrow streites and places so as more of them perished by famine then the sword and Hamilcar by the consent of all was called salvator patriae the Saviour of his Country to this purpose I could plaustra exemplorum accumulare accumulate Cart-loades of examples how dangerous a thing it is to call in strangers to their aid and especially in any great number which plainely appeareth by the perfidiousnesse of the Saxons who though they came at the first as Mercenaries yet once admitted and sensible of their own power they soone grew Masters and Lords of the Brittons and therefore Livy giveth this sound counsell to them who are necessitated to introduce the aid of strangers that their Captaines be so circumspect quod non ita externis credant auxillijs ut non plus sui roboris suarumque pâ—oprie virium in castris habeant Livy l. 25. that they doe not confide so much in externall aid that they have no more of them in their army then their own strength and power will keepe in awe Multum potest in rebus humanis occasio plurimum in bellicis Poly. b. Coke com 71. a. Occasion and opertunity prevaile much in humane things but most of all in Marshall affaires In ancient time Kings had the supremacy over others of commanding 2. Reg. c. 8. or commencing War as appeareth by the sacred History yet sometimes upon necessary cause if there be danger in delay or the soveraigne Commander be absent War may be undertaken without the commandement of the Prince if it be upon necessary occasion of just defence which by the Law of nature is granted to every one So though the Consull Marcellus had the supreame command in Sicily yet L. Pinarius who was Captaine of the Garrison of Enna in Sicily when he did foresee the revolt and defection of the Citizens of Enna to the Carthaginians Livy l. 24. and he could not send Ambassadors to the Consull Marcellus though he was not far from thence suddenly he did kill all the Carthaginians by which Act Enna was still retained for the Romans and Marcellus did not disallow the fact And therefore Cicero commendeth the enterprise of Octavius Caesar who not expecting the decree of the Senate did of his own head make War against Antonius for if he had then omitted the time of battaile he did well foresee that the common Wealth would be suppressed and that then nothing could be decreed by the Senate and the Senate did after allow by publick authority the War undertaken by Octavius of his own private advice so Scipio Nasica did deserve exceeding commendation who voluntary without any decreed authority did offer himselfe a Captaine to all good Romans for the suppressing of Tibeâ—ius Gracchus and his treacherous confederates for it is necessary in such perturbations and tumults rather to obey times then customes for in peace we must obey custome in War the times and occasions Inter arma silent leges Coke l. 9. Ep. ad Lectorem When Armes and Weapons sway The Lawes are at a stay War was first brought in by necessity for in that decisions in Courts of Law and the determining of controversies by their rules could not be between two strange Princes of equall power unlesse they should willingly agree to such an order because they have no superior nor ordinary Judge but are supreame and publick persons and therefore the judgement of Armes is necessary because such War against them cannot be bridled by Law and by this and many other cases War is lawfull though many mischeefes doe staine it for good doth ensue of it and Princes by it obtain their rights and rebells are reduced to obedience and peace accorded and that whose end is good is also good it self to which and to common equity without bloodshed and these injuries of war men do seldome attain But when the Lawes of War and Arms do rule the civill Lawes of peace are silent and of little or no force As in the Conquerors time the Lawes did seem to be silent for in all the time of his Raign either his Sword was alwaies drawn or his hand was continually on the Hilt ready again to be drawn and as Bacon the Conqueror got by right of conquest all the lands of the Realm into his own hands in demesne taking from every man all Estate Terme property and liberty of the same except Religious and church-Church-lands and the lands of Kent and still as he gave any of it out of his own hand he reserved some retribution of rents or services or both to him and to his Heirs which reservation
of a Grant be good in parcels and for parcels not that which is for the advantage of the Grantee shall be taken to be good As if a man granteth unto me an annuity provided that it shall not charge his person the Proviso is void and the Grant good 20 E. 4 8. by Townsend 14 H. 4. 30. by Hank And if an annuity be granted pro consilio impendendo though the Grantee be well skilled in divers professions of art yet counsell shall be given in that faculty onely which was intended at the time of the Grant 4. 1. E. 3. 6. If the King grant to a man that he and his Heirs shall be quit of Tax for the lands which they have this is a good Grant though there be no Tax at the time of the Grant 38 H. 6. 10. And so is the Law of Tenths and fifteens ibidem Ployd f. 29. a. If a man maketh a Lease for life and after the decease of Tenant for life that the lands redibus to A. B. in fee it is held a good remainder because it is held for a principle that the Livery of every one shall be taken more strong against him 18 E. 3. f. 28. If a man give land to one haeredibus it shall be a Fee-simple without the word suis and though he doth not give him a Fee-simple expresly yet every mans livery shal be taken strongest against him Ployd f. 18 b.a. If I make a lease for years upon condition that one moneth after he shall have fee he shall have it after the moneth accordingly for the thing shall pass according to the convention more strong against the Donor Ployd ibidem So if I make a lease to two upon condition that if one doth dye within seven years that then after the death of the other it shall remain to a stranger in fee that remainder is good for the reason of the condition to give the estate to privies or strangers is all one in regard that he had first given an estate to which the condition may be annexed for the livery and limitation shall be taken strongest against him that made it ibidem If I give land to one filio suo primogenito and he hath no Son at the time of the gift and after he hath a Son that son shall have the land by way of remainder and yet the remainder was not out of the Lessor neither did it vest at the time of livery but the Law construeth the livery and limitation more strong against the Lessor P. 17 E. 3. f. 29. Ployd vide ibidem plura If two Tenants in Common grant a rent of ten shillings this is severall and the Grantees shall have twenty shillings But if they make a Lease and reserve ten shillings they shall have onely ten shillings between them So an Obligation to pay ten shillings at the feast of our Lord God it is no plea to say that he did pay it but he must shew at what time or else it will be taken that he paid it after the feast for every act shall be taken more strictly against him that made it Noy Max. f. 15. 2 E. 3. p. M f. 140 b. 161. b. A generall pardon ought to be taken more beneficially for the Subject against the King 37 H. 8. f. 21. Coke l. 4. Vaughans case If I. S. submit himselfe to arbitrement of all Actions and Suites between him and I D. and I. N. it shall be intended collective of joynt Actions and distributive of severall Actions also because the words shall be taken stronger against him that speaketh 2. R. 3. 18. 21. H. 7. 29. If I grant 10 l. rent to Baron and Feme and if the Baron dye the Feme shall have three pound rent it shall be strongest taken against me the grantor for three pounds addition to the ten 8. Ass Pl. 10. So if I sow all my Land with Corne and let it for yeares the Corne passeth to the Lessee if I except it not So if I have a free Warren in my owne Land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren discharged and extracted during the Lease 8. A. 7 32. H. 6. If I. give Lands to I. S. and his heires males this is a good Fee-simple and the words males is void Bac. Max. f. 12. vide ibidem plura Yet this rule also faileth when another which the Law holdeth worthier cometh in place and which is of more equity and humanity It is a rule in the Civill Law valeant eo modo quo valere possunt and at the Common Law Benignae faciendae sunt interpretationes chartarum propter simplicitatem laicorum ut res magis valeat quam pereat Coke com f. 30 b. The interpretations of Deeds and charters because of the simplicity of the people are favorably to be made that the thing may rather stand and subsist then fall and perish and let all things stand by the same meanes they may stand And therefore if I give Lands to I. S. and his heires rendring five pounds yearly to I. D. and his heires this implyeth a condition to me that am the grantor Littleton yet were it a stronger exposition against me to say that the limitation shall be void and the Feoffment absolute So if a man make a lease to A. for yeares and after by his Deed the Lessor voluit quod haberet teneret terram pro termino vitae willeth that he should have and hold the Land for terme of his life this is adjudged by the word volo to be a good confirmation for life Coke com f. 301. b. Though it were stronger to say those words are void because they are not proper words of confirmation So if the Disseisor granteth a rent to the Disseisee and he by his Deed granteth it over and after doth re-enter in this case one and the same words doe amount to a grant and a confirmation So if the Disseisor maketh a Lease for life or in taile the remainder to the Disseisse in fee and the Disseissor by his Deed granteth over the remainder and the particular tenant atturneth the Disseissee shall not enter upon the tenant for life or in taile for then he should avoid his own grant which amounteth to a grant of the estates and a confirmation also ne pereat Coke ibidem 302. So if A enfeoffeth another upon condition that he and his heires shall render to a stranger and his heires a yearely rent of twenty shillings although this reservation be meerly void for that no estate moveth from the stranger and that he is not party to the Deed and therefore can be no rent yet shall it be taken for a penalty or for an annuall summ in grosse so as if they will not pay it according to the forme of the Indenture they shall loose the Land by the entry of the Feoffor and his heires which is to be observed that
at Westminster to the Church of S. Peter at Rome within three hours that then the Obligation shall be void the Condition is void impossible and the obligation standeth good And so it is of a Feoffment upon condition that the Feoffee shall go as is aforesaid the Feoffment is absolute and the Condition void because it is a Condition subsequent for there is a precedent Condition and a subsequent Condition If a Condition subsequent to a Feoffment in fee be impossible the state of the Feoffee is absolute but if the Condition precedent be impossible no state or interest groweth thereupon As if a man make a Lease for life upon Condition that if the Lessee go to Rome as aforesaid that then he shall have fee the Condition precedent is and therefore no Fee-simple followeth Coke ibid. The statute appointeth that in re-disseisin the Sheriff shall go to the place and there shall take the Inquest If then the re-disseisin is of severall lands in divers Counties so as he cannot be at all at once it is sufficient to take the Inquest at one of them because of the impossibility 40 Ass 23. If a man be bound by recognizance or Bond with Condition that he shall appear the next term in such a Court and before the day the Conuzee or the Conuzor dieth the Obligation is saved And in all cases where a condition of a Bond or Recognizance c. is possible at the time of making of the Condition and before the same can be performed the Condition becometh impossible by the act of God or of the Law or of the Obligee there the Obligation is saved But otherwise in case of a Feoffment as if a man maketh a Feoffment on condition that if the Feoffor shall appear in such a Court the next term that then it may be lawfull for the Feoffor to re-enter and presently after the Feoffor dieth the estate of the Feoffee is become absolute And the reason of this diversity is because the estate of the land is executed and setled in the Feoffees and cannot be returned back but by matter subsequent viz. The performance of the Condition But a Bond or Recognizance is a thing in action and executory and whereof no advantage can be taken untill there is a default in the Obligor Coke com f. 260. a. vide ibid. plura Vltima prioribus derogant Reg. I. C. Leges posteriores priores contrarias abrogant Coke l. 11 f. 62. 63. The last Laws derogate and abrogate the first which are contrary Though the wisdome of the Judges and sages of the Law have all wages suppressed subtle and new inventions in derogation of the Common Law and will not change the Law that hath been used 38 E. 3. 1 so as if it be not altered by Parliament it remaineth still yet as Cato said Vix ulla lex fieri potest que omnibus commoda sit And as Sir Edward Coke rerum progressui ostendunt multa quae initio praecaveri provideri non possint It is impossible for any Law to be which may be commodious to all and the progress and proceeding of things shew and present many things which at the first could neither be presaged nor prevented From whence it proceedeth that no Law can be so absolute but that may in some particulars prove defective and amendable and yet as Ployd f. 369. that Law is reasonable which provideth for the multitude though some especiall persons lose by it which hath been the occasionall cause of the alteration of the Common Law in many points Yet the Common Law hath no controller but the high Court of Parliament and the wisdome and custome of this State hath alwaies had such regard and respect to the Common law that they would by no meanes change it but by the great Councell of Parliament wherein all things are transacted not onely by the prudency of the Prince but by the cheifest and sagest Senators of the whole Nation and that not upon the consultation and declaration of one or two hundred but as Fortescue by more and three hundred elect men by which number the Senate of Rome was ruled who alwaies have been cautious and vigilant not to introduce any forrein Law as Sir John Davis in his Preface observeth That in the Parliament of Merton when motion was made by the Clergy that Children borne before marriage might be adjudged legitimate The great and wise men of England made answer with one voice Nolumus leges Angliae mutari And again in 11 R. 2. when a new course of proceeding in criminall Causes according to the form of the Civill Law was propounded in that unruly Parliament Answer was made by all the States That the Realm of England had not been in former times nor hereafter should be ruled by the Civill Law And therefore for the most part Magna Charta which is the foundation of other Acts of Parliament and other ancient Statutes are but the affirmations and declarations of the Common Law And that whereas the words of the Statute are generall the construction thereof shall be according to the reason of the Common Law Coke com 81 b. 282. b. So cautious have our grave and prudent Senators been not to subject the common-law to any mutations unless for necessary and impulsive causes reasonably arising from the publick mischeifs and inconveniencies which happen in the Common-weal through the injurious abuses of the ancient and former Lawes upon which grounds other Lawes were constituted for the remedy of such mischeifs and inconveniencies which did abrogate the former from whence grew this ground Leges postertores priores abrogant To illustrate this by examples It is regularly true that Statutes in the affirmative shall not take away precedent acts affirmative unless it be in speciall cases As the Statute of Wills 32. 34 H. 8. doth not take away a custome to devise lands as often hath been adjudged So it is enacted that the King shall have Wreckum Maris per totum regnum yet this shall not take the wreck from one who hath wreck by prescription unless the prescription had been per totam Angliam Coke l 5. in Sir Henry Constables case So the Statute of 21 H. 8. c. 13. enacteth that if one â—ath a Benefice of the value of eight pounds and taketh another and is inducted the first is void doth not take away the Law which was before that if one who had a Benefice with cure did accept another the first is void only that in that case no lapse shall incur without notice Coke l. 4. in Hollands case and in this point is the Statute nothing else but a confirmation and affirmance of the Law before ibid. So the Statute of 23 Eliz. that inflicteth the penalty of twenty pounds by the moneth hath not taken away the Statute of 1 Eliz. which hath given the forfeiture of twelve pence for every Sunday and Holy-day but both shall be paid the twelve pence onely to
may have a Quare impedit against another if shee be disturbed of her presentment by turne so cannont Joyn-tenants or tenants in common F. N. B. 34 I. For equality of partition among Coparceners a rent granted shall be a Fee-simple without the word heires Coke com f. 10. a. Coke com 102. a. Homage ancestrell is a speciall Warranty in Law and the Lands generally which the Lord hath at the time of the Voucher shall be lyable to execution in value whether he hath them by descent or purchase but in the case of an expresse warranty the heire shall be charged onely with such Lands as he hath by descent from the same Ancestor so in this case Firmior potentior est operatio legis quam dispositio hominis Lease upon condition that if it happen that the Lessee make any wast in or upon the Premisses it shall be lawfull for the Lessor to re-enter and the Lessee suffereth the house to fall in default of covering and reparations Dyer and Wash said that the Lessor might re-enter for such wast is punishable by the statute of Gloucester for destructionem facere in domibus Dyer 281. b. and so it is if he suffer wast to be done by a stranger Doct. Stud. l. 2. c. 4. yet if the Tenant had been bound in an Obligation that he shall do no wast he shall not forfeit his Bond by the wast of a stranger for greater is the operation of the Law c. A man is seised of three Mannors of equall value and taketh a wife and she taketh one entire Mannor for her Dower which is charged with a rent she shall hold it charged otherwise it is if she had recovered her Dower by a Writ of Dower and had had a third part of each assigned to her Inutilis labor sine fructu non est effectus legis Non licet quod dispendio licet Sapiens incipit a fine Et lex non praecipit in utilia Coke com f. 127. b. The Law commandeth no vain chargeable and unprofitable things As a Villain by the Law shall not have an appeal of Mayhem against his Lord for in an appeal the Mayhem man shall onely recover damages and if the Villain in this case recovereth damages against his Lord and thereupon hath execution the Lord may take it that the Villain hath in execution from the Villain and so the recovery void inutilis labor stultus and unprofitable labour is foolish and idle which the Law prescribeth not Coke com f. 197. a. Tenants in Common of an Hawk and an Horse shall joyn in Assise for otherwise they would be without remedy for one of them cannot make his plaint in an Assise of the Moyety of an Hawk or Horse because the Law will never inforce a man to demand that which he cannot recover as the Moyety of an Hawk or an Horse or any other entire thing for Lex neminem cogit ad vana in utilia Coke com f. 319. b. If a Lease be made for term of life the remainder to another in tail the remainder over to the right Heirs of the Tenant for life and Tenant for life granteth his remainder in fee to another by his Deed the remainder shall presently pass without any Attornment for none can atturn but himself and it were in vain that he should atturn upon his own Grant for quod vanum est lex non requirit Coke l. 5. 84. a. Where a man is in custody of the Sheriff by process of Law and after another Writ is delivered to him to take the body of him who is in custody presently he is in his custody by force of the second Writ by judgment of Law although he make not an actuall arrest of him for to what purpose shall he be arrested of him who is and was before in his custody for the Law prescribeth no fruitless things Actus legis nemini facit injuriam Coke com 178. a The Act of Law doth injury to none As if the land out of which a rent-charge is granted be recovered by an elder Title and thereby the rent-charge is voided yet the Grantee shall have a Writ of Annuity because the rent-charge is avoided by course of Law So if Tenant for another mans life grant a rent-charge by Deed to one for one and twenty years Cestuy que use dieth the rent-charge is determined yet may the Grantee have during the years a Writ of Annuity for the arrearages incurred after the death of Cestuy que use because the rent-charge did determine by the act of God and course in Law which wrong no man ibid. Coke l. 5. f. 87. a. If the Defendant in debt dieth in execution the Plaintiff shall have a new execution by Elegit or Fieir facias because otherwise the Plaintiff should lose his debt without any default in him and the act of God and the act in Law will not prejudice any one Trewgrijard being a Burgess of the Parliament who was taken upon an Exigent post capias and yet upon his Writ of priviledge of Parliament the Sheriff let him go at large for the King and the Realm hath an interest in the body of every Subject and the Common-wealth shall be preferred yet the party of the Parliament may be taken in execution again after the Plaintiff shall not be prejudiced in his execution by the act of Law which doth no man wrong neither is the Sheriff chargeable because his Office consists chiefly in the execution and service of writs and is sworn to do it Dyer 60. Lex plus respicit acta sine verbis quam verba sine actis Coke l. 3. f. 26. The Law respecteth more acts without words then words without acts As at the Common Law if lands be given to Baron and Feme in taile or in fee and the Baron dieth there the Feme cannot devest the Frank-Tenement out of her by any verball waiver or disagreement in pais as if before any entry made by her she saith that she waiveth and altogether disagreeth to the said state and that she never will take or accept of it yet the Frank-tenement remaineth in her and she may enter when she pleaseth and waive it in Court of Record for the Law more respecteth Acts without words then words without Acts and therefore if she entreth and taketh the profits although she say nothing it is a good agreement in Law And so it is adjudged in Mich. 34 E. 1. Avowry 232. That if a man take a distress for one thing yet when he cometh in Court of Record he may make an Avowry for what thing he pleaseth a multo fortiori when a Frank-tenement is vested in him it cannot be devested by nude words in pais and with it accordeth 17 E 3. 6. 17. Where the Baron alieneth his lands and retaketh the estate to him and his wife in taile the Baron dieth the Lord of whom the land was holden by Knights-service supposing that the Baron died sole
seised by word assigned Dower to the Feme which she accepteth yet was it adjudged that that refusall of the estate of inheritance and acceptance of her Dower in pais shall not devest the Frank-tenement out of her So 13 Ric. 2. Joynt-tenancy a Charter of Feoffment was made to foure and seisin delivered to three in the name of all and after the Seisin delivered the fourth commeth and vieweth the Deed and saith by word that he will have nothing in the Land and it was adjudged that that agreement by word in pais shall not devest the Frank-tenement out of him and Thorp 35 Ed. 3. Disclaimor said that in such a case the Tenement remained in all untill a disagreement in Court of Record So if there be Lord and Tenant by Deed enfeoffeth the Lord and a stranger and maketh Livery to the stranger in the name of both if the Lord by word disagreeth to the estate it is nothing worth but if he enter into the Land generally and take the profits that amounteth to an agreement to the Feoffment but if he enter into the Land and distrain for his Seignory that act amounteth to a disagreement of the Feoffment and shall devest the Frank tenement out of him 10 E. 4. 12. by all the Justices But if Lands be given to Baron and Feme and after by the Statute of 32 H 8. the Baron alieneth the Land to the use of him and his heires and after deviseth it to his wife for life the wife enters claiming by word the estate for life this is a good agreement to the estate for life and a good disagreement to the estate of inheritance Dyer 351. b. And if A. maketh an Obligation to B. and deliver it to C. to the use of B. this is presently the Deed of A. But if he offereth it to B and he refuseth it in pais by it the Obligation shall lose his force Dyer 167. The same Law is of the gift of goods and chattels and if the goods be delivered to the use of the Donee the goods were in him presently but he may refuse them in pais and by it the property shall be determined ibidem SECT III INclusio unius est exclusio alterius Coke l. 11. f. 50. a. b The inclusion of one thing is the exclusion of another As when an act of Parliament giveth a power and interest to one certain person by that expresse designation of one all others are excluded although such a statute be in the affirmative As where the statute of 31 E. 3. c. 12. it was provided that error in the Exchequer shall be corrected and amended before the Chancellor and Treasurer and therefore it could not be corrected before any other and the generall Rule is put that when any thing is to be done before any person certain by any statute it cannot be done before any other and yet the statute of 31 E. 3. is in the affirmative Ployd 106. b. in Stradlings case So whereas by the statute of 8 H. 6. c. 9. forcible Entry is designed to the Justice of Peace to make restitution by it others be excluded though the statute be in the affirmative and therefore neither Justices of Oyer or Terminor or of Goal-delivery c. shall do it Dallisan 3 Eliz vide ibid. plura And this is true in all acts which are the introduction of a novel Law as the above said acts are but where acts of Parliaments are no introductions of a new Law it is otherwise So the act of 35 Eliz. doth not exclude those to whom the Forfeitures are limited by the act of 23 Eliz because by it they are not given to a new person but to the same person to wit the Queen and is but an act of addition to give more speedy remedy As the statute of W. 2. c. 9. in a VVrit of Mesne giveth more speedy proces and in the end fore-judger whereas the proces at the Common Law was but Distresse infinite yet the Plaintiff may take which proces he will either at the Common Law or upon the statute because they are both in the affirmative Coke l. 11. f. 64. a. And also in many cases the designation of a novell person in a latter act of Parliament shall not exclude another person that was authorized to do the same thing by an act precedent As by the statute of 8 H. 6. c. 16. after Office found he who found himself grieved might within a moneth after traverse take the Tenements to farm that then the Chancellor Treasurer or other Officer shall demise to him to farm untill c. 13 E. 4. f. 8. and yet by the statute of 1 H. 8. c. 16. he hath liberty by the space of three monthes and after by the statute of 32 H. 8. c. 40. the Master of the Court of Wards by advice of own of his Councell is authorized to make a Lease of Land in VVard or an Ideot And though the latter act design another person yet it is not the first altogether taken away for before any Lease made by the Master of the VVards the Chancellor and Treasurer may do it and so e contrario as Stanf. holdeth Prerog f. 69. a. b. VVhere he maketh mention of this Rule â—eges posteriores priores contrarias abrogant vide ibidem plura Coke com f. 210. a. If the Condition upon a Mortgage be to pay to the Mortgagee or his heires the money and before the day of payment the Mortgagee dyeth the Lessor is not to pay the money to the Executors but to the Heire for in this case designatio unius personae est exclusio alterius Consensus tolliâ— errorem Coke com f. 37. a. Consent taketh away error As Dowment ad ostium Eclesiae ex assensu patris seem to be good albeit the wife be within the age of nine years But without question for the same reason a Joynture made to her under or above the age of nine years is good ibidem Coke com f. 125. b. a. If a Venire facias be awarded to the Coroners where it ought to be to the Sheriff or the Visne cometh out of the wrong place yet by assent of the parties and so entred of Record it shall stand for all consent taketh away error ibidem Coke l. 5. f. 36. b. Dyer 367. in Bainhams case Coke l. 5. f. 40. a. b. in Dormers case A common Recovery is not to be resembled to a judgement or proceeding at the common Law for by usage and custome it is become a common assurance and conveyance of Lands and because it is done by mutuall consent errors are not to be allowed for consensus tollit errorem If the Demandant and Tenant consent that two of the foure in a Writ of Right shall be Esquires where by the Law they ought to be Knights and well because by consent Tryall of Villenage was altered from the naturall tryall by consent Pleader of a Feoffment upon condition without deed and
first because he requested it which implyeth an assent secondly because he accepted it which also implyeth an assent for it mattereth nor whether one giveth his assent by words or by things themselves and deeds vide ibidem in Lampeis case As if the Baron accept the Grant of a reversion that amounteth to an Attornement 44. E. 3. Fines 37. Littleton so 37. H. 6. 17. he which hath interesse termini to wit a future interest cannot by expresse words surrender it but the acceptance of a new Lease shall drowne it and in 7. E. 3. 50. The Lord demanded an heriot and the heire delivereth a Beast in which himselfe hath property in his own right to the Lord that amounteth to a guift Ibidem N.S. seised of Mannors for the preferment of Winifâ—id his wife and Anne his Daughter covenanteth to stand seised to the use of himselfe c. for life the remainder in taile to A. his Daughter with a proviso that if he shall be disposed to determine c. the said uses it shall be lawfull for him so to doe by writing indented under his hand and seale subscribed by three witnesses and to limit the said uses to any other and N. S. after by indenture subscribed by three witnesses in consideration of a joynture to his second wife covenanted to stand seised to the use of himself his second wife and it was resolved though there was no expresse signification of his purpose to determine c. the former uses yet his last Indenture to stand seised to himself and his second wife should enure to the determination of the former uses c. and that by it ipso facto the former uses did cease and also inure to the raising of other uses c. quia non refert an quis intentionem suam declaret verbis an rebus ipsis vel factis because it is no matterwhether one declareth his intention in words or in the things themselves or deeds for by the limiting of other uses he did declare his intention and purpose to determine and alter the uses before Coke l. 10. f. 144. a Scroops case Conditio beneficialis quae statum construit benigne secundum verborum intentionem est interpretanda odiosa tamen quae statum destruit stricte secundum verborum proprietatem est accipienda Coke l. 8. f. 90. b. Provisoes and conditions which goe in destruction and defeasances of estates are odious in Law and are to be taken strictly and shall not be construed to make void any other use or state which is not within the words of the proviso but beneficiall conditions which make an estate are favorably to be taken according to the intention of the words As if a Feoffment be made upon such condition that the Feoffee shall give the Land to the Feoffor and the wife of the Feoffor and to the heires of their two bodies engendred the Remainder to the right heires of the Feoffor if the Baron dye living the Feme the Feoffee by the Law must make the estate to the Feme so neer the condition that he can make it as Littleton saith to wit to lease it to the Feme for terme of her life without impeachment of wast and after her decease to the right heirs of the Baron and of her ingendred the remainder to to the right heirs of the Baron and so if the Baron Feme dye before the deed made And with it accordeth the 2. H. 4. 5. But when conditions enure to the destruction of estates then they shal be taken strictly as if a man make a Feoffment in fee of certaine Lands upon condition that the Feoffee shall not give the Land to Baron and Feme and to the heires of their bodies engendred if the Baron dyeth without issue and the Feoffee maketh a lease for the life of the Feme without impeachment of waste that is no breach of the condition for it is taken strictly because it runneth to the destruction of the Feoffment vide ibidem plura in Frances case A lease made to one upon condition that the Lessee shall not alien to A. B. and he alieneth to R. B. and it seemed that the Condition was not broken for every Condition must be taken strictly for if a man maketh a Feoffment on condition that he shall not enfeoff I. S. and dieth and his Heire enfeoffeth I. S. that is no breach of the Condition Dyer f. 45. Pl. 1. A man is bound to another in an hundred pounds that he shall discharge the Obligee and â—ave him harmlesse of all Suits and Incumbrances against I.S. and after the said I. S. sued the Obligee and proceeded unto Judgment and the Defendant pleaded non damnificatus and Beaumon Serjeant sayd That in the eye of the Law untill his Goods or Lands were actually charged he was not damnified But Walmesley Justice held that there were two sorts of damages executory and executed executory which a man may in future time sustain executed as if the Land or the person should be in present execution As if the Disseisee maketh a release to the Disseisor and a stranger cancelleth the the Deed of the Release the Disseisor may have an action of trespasse against him and yet the Disseisor doth continue in possession and is not actually damnified And the Justices said the Land in some sort was actually charged for who would buy the Land of the party but only under value because of the Judgment executory 33 Eliz. Ridgleys case If a man be bound to make a sufficient estate in Land to one according to the advice of I. S. if he make an estate according to his advice whether it be sufficient or no he is excused 7 E. 4.13 A TABLE of the grounds and RULES contained in this Treatise A. ABundans cautela non nocet An abundance of circumspection doth not hurt fol. 323 Actus Dei nemini facit injuriam The act of God doth injury to no man 6 Actio personalis moritur cum persona A personall action dieth with the person 48 Actori incumbit onus probandi stabilitur praesumptio donec probetur in contrarium The burthen of proving lyeth on the Plaintiff and the presumption is confirmed untill it be proved to the contrary 46 Accessorium sequitur suum principale An accessory followeth the principall 56 Accusare nemo se debet nisi coram Deo No man ought to accuse himself unlesse it be before God 222 Actus non facit reum nisi mens fit rea The act maketh not a man guilty unlesse the mind is guilty 231 Actus repugnans non potest in esse produci A repugnant act cannot be brought into being 124 Actus me invito factus non est meus actus An act done against my will is not my act 434 Actus legis nemini facit injuriam The act of Law doth no man injury 463. 317 Ad libitum Regis sonuit sententia legis The sentence of the Law soundeth according to the Kings