renunciaverit amplius repetere non potest n. f. 139. a. As a Retraxit is a bar of all other actions of the like or inferior nature for he which once renounceth his action can no more renew it It is a generall rule that non-suite before appearance is not peremptory in any case for that a stranger may purchase a writ in the name of him who hath cause of action and regularly a non suit after appearance is not peremptory but that he may commence an action of like nature againe for it may be he hath mistaken something in that action or was not provided of his proofes or mistaken the day or the like But yet for some speciall reasons non-suit in some actions is peremptory as in a quare impedit if the Plaintiff bee non-suit after apparance the Defendant shall make a title and have a Writ to the Bishop and this is peremptory to the Plaintiff and is a good bar in another quare impedit and the reason is because the Defendant had by the judgement of the Court a writ to the Bishop and the incumbent which commeth in by that writ shall never be removed which is a flat barre as to that presentation and for the same law and upon the same reason so it is in the case upon a discontinuance Coke com f. 139. a. vide ibidem plura Actio personalis moritur cum persona a personall action dieth with the person Went. off of executors f. 1. 97. As if a keeper of a Prison suffereth one in execution to escape and dieth no action lyeth against his Executors If Lessee for yeares doth wast and dieth an Action of wast lyeth not against his Executor or Administrator for wast done before that time Coke com f. 53. b. so if the tenant doth wast and he in the reversion dieth the heire shall not have an Action of wast for the wast done in the life of his Ancestor nor the master of an Hospitall or a parson for wâ—st done in the life of the predecessor ibidem The Lessor covenants to pay quit rent during the terme and dieth his Executors shall not pay it because it is a personall covenant in the Lessor onely Dier 114. Yet if there be three copartners and they Lease the land and one of them die and hath issue and the Lessee commit wast and one of them die and hath issue the Aunt and the issue shall joyne in an Action of wast and the issue shall recover one moyety of the Land wasted and the Aunt the other notwithstanding that actio injuriarum moritur cum persona But in favorabilibus magis attenditur quod prodest quam quod nocet in indifferent and favourable things that which profiteth is more respected then that which hurteth Relatio tunc fieri non debet si per eam actus destruatur Reg. I. c. Decius 363. Quando dispositio referri potest ad duas res ita quod secundum relationeÌ„ una vitiatur secunduÌ„ aliaÌ„ utilis sit tunc facienda est relatio ad illam ut valeatdispositio semper ita fiat relatio ut valeat dispositio C. l. 6. f. 76. b. a. A relation then ought not to be when by it an Act is destroyed As in the statutes of 32. and 34. H. 8. concerning Wills whereof is provided that every person having any Mannors Lands c. holden in capite shall have full power c. to dispose by his last will in writing or otherwise by any Act or Acts lawfully executed in his life two parts of the same Mannor c. for the advancement of his wife preferment of his children and payment of his debt or otherwise at his will and pleasure any Law statute c. those words or otherwise at his wil pleasure have reference relation only to the last wil not to the acts executed for otherwise none might have devised two parts but onely for the advancement of his wife and preferment of his children or payment of his debts which is not the intention of the Act but that he may devise two parts to whom he will so that the third descend and it was in vaine to referre those words or otherwise at his will and pleasure to Acts executed for he can do that without any authority given to him by that act And therefore when the disposition may be referred to two things so as according to the relation one of them may be destroyed and according to the other shall be commodious then the relation is to be made to that that the disposition may be of force and alwayes the relation is so to be that the disposition may availe in Sir G. Cursons case So Coke l. 3. f. 28. b. Butler and Bakers case relation is a fiction in law to make a nullity of a thing from the beginning to a certaine intent which in truth had being and the rather for necessities sake ut res magis valeat quam pareat As if a man make a gift in taile to Baron and feme and afterwards grants the reversion of those Lands and since the Baron dies and the feme to have her dower waiveth and disagreeth to the estate taile now in regard of her it is a nullity of the estate from the beginning and to such an intent the Law faineth that the estate was onely made to the baron but as to the grant of the reversion that is a collaterall Act and her refusall shall not have such relation for she may be endowed though that estate stand and so no necessity and therefore without necessity ut res magis valeat the Law will not faine any nullity but in a destruction of a loyall estate vested the law will never make any fiction vide ibidem plura So relation shall make things have been as if as if they never had been 1. H. 7. 16 The husband disagreeth to a Feoffement made by his wife it is void from the beginning so that he may plead ne infeosse pas so 14. H. 8. 10. A devise is that the Executors may sell land c. when they sell all meane charges made by the heire in the interim shall be avoided by relation to the time of the death of the Testator so 14. H. 8 18. I disseise A. to the use of B. the dissiesee releaseth to mee and then B. agreeth with the disseisee this agreement by relation shall be as if he had agreed before the release and so shall defeat it Jurors alien their Lands away between the teste of the Writ of attaint and judgement yet they shall be charged to the King for the estreptment by relation 22. E. 3. 16. Caufe of Assise brought for rescuing a distresse taken for rent and then an Office is found which entitleth the King who seiseth the Land and then an Ouster le maine is sued the Assise is gone for ever because the King shall be said to be in possession at the time of the rescous
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
incurreth for which day the husband maketh an acquittance supposing the receit of the rent for the said yeare last past and notwithstanding that acquittance his servant distraineth for the rent of half a yeare of the first year being behinde but though the last arrearages before the last terme were due to the feme dum sola fuit yet Harper and Dyer were of opinion that all the arrearages were discharged by the acquittance of the last terme because it is an antient principle That all the arrearages are discharged by the acquittance of the last terme and we ought not to deny principles Coke l. 10. f. 40. a. No man ought to dispute against recoveries the legall pillars of common assurances because we are not to dispute against principles and which St. Germins Doctor and Student c. 26. approveth to binde both in Law and conscience and by the Statute of 23. Eliz. C. 4. That for the avoyding of the dangers of assurances of Lands and the advancement of common recoveries it is provided that any common recovery shall not be avoided for any want of forme in words and not in matter of substance And Sir James Dyer then chiefe Justice did with great gravity and some bitternesse reprove an utter Barrister who rashly inveyed against common recoveries not knowing the reason and foundation of them and said that he was not worthy to be of the profession of the Law who durst speake against common recoveries which were the sinews of assurances and inheritances and founded upon great reason and authority Mary Portingtons Case vide ibidem â—lura Coke Com. f. 343. a. Principium est quasi primum caput a principle is as it were the first head from which many cases have their beginning which is so strong as it suffereth no contradiction and therefore is it said in our Books that ancient principles of the Law ought not to be disputed 11. H. 4. 9. 2. As that of every Land there is a fee-simple and that every Land in fee-simple may be charged in fee by one way or other Littleton ibidem Cessante statu primitivo cessat derivativus Coke l. 8. f. 34. a. The primitive state ceasing the derivative doth cease As if Tenant in taile maketh a lease for lives according to the Statute of 32. H. 8. c. 28. and then dyeth without issue the lease being derived out of the Estate taile shall not continue longer than the Estate taile against the opinion in 33. H. 8. 48. Dyer which was granted by the whole Court Derivativa potestas non potest esse major primitiva Noy max. f 4. A derivative power cannot be greater than it fâ—om which it is derived As the Attorny of one that is disseised cannot make claime of the Land it the disseisee durst have gone to the Land Littleton The Bayliff of a disseisor shall not say that the Plaintiff never had any thing in the Land for the Master himselfe shall not have that Plea because he is not Tenant of the Free-hold 28. Ass Pl. 4. The Servant shall be estopped to say the Free-hold is his Masters by recovery against his Master though the servant himselfe be a stranger to it for he shall not be in better condition tâ—an he whose right he claimeth 2. E. 4. 16. He that gaineth a thing on high shall neither have gaine nor losse thereby Noy Max. f. 11. As if one Joyn-tenant maketh a lease of his Joyntee and dyeth the heire which surviveth shall have the reversion of his Joynture but not the rent because he cometh in by the first Feoffor and not under his companion Dyer 187. So when the Husband is Lessee for years in the right of his wife reserving a rent if he dyeth the wife shall have the residue of the terme but not of the rent ibidem An executor recovereth and dieth intestate Administration of the goods of the Testator is committed to I. S. I. S. shall not sue execution upon this recovery Dower cannot be assigned reserving a rent or with a remainder over for shee is in from the husband and not from him who assigneth Dower Finch f. 13. Quod dignius est prius est minus digno The Law preferreth every thing according to its worthinesse Ployd f. 169. a. and therefore is every thing placed in Writs by the rule of the Register according to its dignity as the Messuage is placed before Lands the Land before Meadow and the Meadow before Pasture and the like and this dignity is taken from necessity for to have an house to inhabite and to defend his body from tempest and violence of weather is more necessary than to have Land to plow it for bread and also to have Land for bread is more necessary than to have Meadow for Hay to feed Cattell and likewise to have Meadow for Hay which will serve all the yeare is more necessary than Pasture c. ibidem And so in the Register the entire thing which is more worthy shall be demanded before the moyety part or parts As in a Replevin if it be of two beasts the one quick the other dead the living thing shall first be demanded Register Quod prius est verius est quod prius jure est potius est tempore Coke Com. f. 347. b. As in a remitter the Law preferreth the first and antient right before the latter and a sure right though it be little before a great estate by wrong which jumpeth with the rule of the Civill Law Quoties duplici jure defertur alicui successio repudiato novo jure quod ante defertur superest vetus Paulus 17. quest As if Tenant in taile discontinueth the taile and after disseiseth the discontinuee and so dyeth seised This is a remitter to the tenant in taile because the Law shall put and adjudge him to be in by force of the tayle which is his antient title for if he should be in by force of the descent then the discontinuee may have a writ of Entry sur disseissin in the per against him and recover the tenement and his damages but being in by force of the taile the title of the discontinuee is quite nullified Qualis causa talis effectus Ployd f. 292. a. Things are construed according to that which is the cause thereof as if an Executor assigne Auditors to one who was accountant to the Testator and the Auditors finde him in arrearages the Action of debt which the Executors shall have shall be in the detinet onely for the debt shall be in them as Executors and have respect to the foundation and cause 11. H. 6. f. 16. by Paston and Newton So if one have a villaine for years as Executor if the villaine purchase Land and the Executors enter the Land shall be to the use of the Testator and it shall be assets in his hands because the villain who was the cause of it was to that use Ibidem Pas 32. H. 8. E. villenage 146. Ployd f. 524. 525.
remotissime vana which by the intendement of the Law never cometh into act Coke l. 2. f. 5. 2. n. b. in Sir Hugh Chomleys case vide ibidem plura And hereby the way may pertinently be observed that a possibility cannot be released as if before judgement the Plaintiff in an action of debt releaseth to the baile in the Kings Bench all demands and after judgement is given this shall not bar thee to have execution against the baile because at the time of the release he had but a meere possibility and neither jus in re or jus ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute release to the Conusor all his right in the Land yet afterward he may sue execution for he hath no right to the Land till execution but onely aâ— possibility and so have I known it adjudged Coke com f. 265. b. So if A. grant to B. that if he doe such an act he shall have an annuity of twenty pounds during his life before the Act done he cannot release the annuity Coke l. 1. in Albanys case Lex semper dabit remedium the law so favoreth right that it will suffer things against the principles of Law rather then a man to be without his remedy As a man who is outlawed may bring an action to reverse it an outlawry there is no Plea 4. H. 7. 40. The Tenant shall have a replevin against the Lord that did wrongfully distraine though the beasts be come back to himself because he can have no action of trespasse against him for that prisall and shall recover damages for the tortious prisall F. n. b. f. 69. H. A man after judgement is passed against him shall plead against the King a Charter of pardon or any such thing done in the meane betwixt the verdict and the judgement because against the King he can have no Audita querela 11. H. 7.10 otherwise it is against a common person And therefore is it a principle in Law cuicumque aliquis quid concedit concedere videtur id sine quo res ipsa esse non potest Coke l. 11. f. 52. a. Which Ploydon thus expresseth that it is held as a maxime in 2. R. 2. in trespasse that if any man hath interest to any thing by the grant and assent of another and the party who hath such interest cannot have the principall thing without doing the other thing that he may doe the said other thing and justify it because it is a meanes to come to his profit for there it is holden That if one grant to me all his Trees growing in his Woods I may cut them down and carry them through all his Land and though his Grasse be spoiled with the carriage he shall not have a Writ of trespasse of it for Trees are such things that if they be not carryed by Carts he cannot have them nor make his profit of them But if one sell all his Fish in his Pond and the Vendee dig a trench so as the water may run out that by such meanes he may take the Fish an action of trespasse will lye against the Vendee because he might take the Fish by Nets or other Engines but if there had been no other meanes to take them it had been otherwise and to come to the banks to fish he may well justify it for without it he cannot take them by any meanes so as a man shall alwayes justify the necessary circumstance where he hath title to the principall thing Ployd f. 15. 16. a. vide ibidem plura in Renigers case So when a Lessor in the Lease except the Trees and after hath an intention to sell them the Law giveth to him and to those who will buy them power as incident to the exception to enter and shew the Trees to those who will have them for without entry they cannot view and without view they cannot buy Coke l. 11. f 52. in Lisords case So 19. H. 6.29 A man seised of a mese in a Burrough c. devisable deviseth it to his wife in taile and that if his wife dye without issue that his Executor may sell it and it dispose for his soule in this case the Executor may by the Law enter into the house to see whether it be well repaired or no to the intent to know at what valew he may sell the reversion And the Law giveth power to him who will repaire a Bridge to enter in the Land and to him who hath a Conduit within the Land of another to enter into the Land for it to mend as cause shall require as it is resolved in 9. E. 4.35 Coke ibidem vide plura And Coke l. 5. f. 12. a. If a man hath Mines hidden within his Land and leaseth his Lands and all his Mines in it there the Lessor may dig for them for quando aliquis quid concedit c. and this accordeth with 9. E. 4.8 that if a man lease his Land to another in which there is a Mine to wit an hidden Mine he cannot dig for it and if he doe it is wast but if he lease his Lands and all the Mines in it it is otherwise for the reason aforesaid vide ibidem plura in Saunders case If tenant at will soweth Corne on the ground and the Lessor out him he shall have free entry egresse and regresse to carry it away for when the Law giveth any thing to any one it giveth implicitly whatsoever is necessary for the taking and enjoying of the same and the Law driveth him not to an action for the Corne but giveth him a speedy remedy to enter into the Land and to take and carry it away and compelleth not him to carry it at one time or to carry it before it be ready to be carryed and if the Lessee be disturbed of this way the Law doth give unto him he shal have his action upon the case and recover his damages for whensoever the Law giveth any thing it giveth a remedy for the same Coke com f. 56. a. If there be Lord Mesne and Tenant and the Lord purchaseth the tenancy in fee the mesnalty is extinct but whereas the tenant held of the meane by five shillings and the mesne of the Lord by twelve pence so as he hath more in advantage by foure shillings he shall have the foure shillings as a rent-seck yearly of the Lord and yet he shall distraine for it for seeing the mesnalty is extinct the Law reserveth the distresse to the rent for quando lex aliquid concedit c. And therefore if a man maketh a Lease for life reserving a rent and bindeth himselfe in a Statute and hath the rent extended and delivered unto him he shall distraine for the rent because it cometh to him by course of Law Multa constituuntur in lege ne curia Domini Regis deficeret in Justitia
consisteth in idlenesse for idlenesse is the mother of all vices and as Coke there saith principally in young men who ought in their youth to learne profitable sciences and trades which are profitable to the weale publick of which they may reape the fruites in their old age for jeunesse oisense vilesse disettense if in our youth we be idle in our old age we shall be indigent and for that reason the common Law detesteth all Monopolies which prohibit any one to work in any Lawfull trade and that appeareth in 2. H. 5. b. A Dyer was bound that he shall not use his Diers craft for two yeares and there Hull said that the obligation was against the common Law and that by God if the Plaintiff were here he should goe to prison untill he had made fine to the King and so for the same cause if an husbandman be bound that he shall not till and sow the ground the obligation is against the common Law And therefore the act of 5. Eliz. c. 4. that prohibited any person to use or exercise any craft mistery or occupation unlesse he had been an Apprentice for seven yeares doth not make provision onely to the intent that the artificers may be skilfull but that young men shall not be idle in their youth but trained and brought up in lawfull sciences and trades and so by the same reason the common Law doth not prohibit any person to use many Arts and Misteries at his pleasure for nemo prohibitur plures negotiationes sive Artes exercere untill it was prohibited by the Act of Parliament 37. E. 3. 6. That all Artificers c. are bound every one to one mistery and that none use other mistery but that he hath chosen but because that restraint of free trade was prejudiciall to the weale publick at the next Parliament it was enacted that all people should be so free as they were before that Ordinance by which it appeareth that without Act of Parliament no man can be in any manner restrained to worke in any lawfull trade Non negligentibus sed impotentibus succurrendum Reg. I. C. Vigilantibus non dormientibus jura subveniant Ployd f. 357. b. The Law helpeth and releiveth those are impotent not those are negligent As if you disseise me of my Land and then A. bringeth a Writ of right against you and you joyn the mise upon the meer right and you make default after the mise joyned he shall recover to him and his Heires for ever quit of you and your Heires for ever and if I doe not lay my claime within a yeare a day I am barred for ever for the Law succoureth those that are watchfull and not sleepy so as non-claime by a yeare and a day upon a recovery by default where finall judgement is given was a good Bar by the common Law 5. E. 3.222 by Hor. A descent cast during the Coverture where the wife is disseised barreth her not of her entry after her husbands death but if a feme-sole be disseised and then taketh an husband there a descent during the coverture taketh away her entry for it was her folly to take such an husband that entred not in time Littleton 95. Negligentia semper habet comitem infortunium Coke l. 8. f. 133. a. Sa. Turnors case An Executor of an Administrator ought to execute his office and administereth the goods of the dead lawfully truly and diligently Lawfully in the payment of all dueties debts and legacies in such precedency and order as they ought to be paid by the Law truly to convert nothing to his own use and ought not by any practise or devise to bar or hinder any creditor of his debt but ought truly to execute his office according to the trust reposed in him And diligently as in the case at bar for when the Administrators which had judgement for one hundred pounds for sixty pounds and the Plaintiff offered a release or to acknowledge satisfaction and he deferreth it to the intent that the Judgement shall stand in force by which the Plaintiff shall be defrauded of his due debt and the Administrators to convert the goods of the debt to their private use let the agreement be precedent before the recovery or subsequent since the recovery it is all one as to the creditor who is a third person for he is defrauded as well by the one as the other and the creditor who is a stranger shall loose his debt which is by the Law due to him and if any prejudice accreweth to the Administrators in this case it is in his own default for the Plaintiff would have released to them or acknowledged satisfaction but they defer it to the intent to bar the Plaintiff of his just and true debt and negligence hath allwayes misfortune or ill luck for her companion Ibidem Coke l. 2. f. 26. b. If a creditor upon a commission upon a Statute of Bankrupt either by obstinacy doe refuse or by carelessnesse neglect to come before the Commissioners within the time limited and to crave the benefit of the Act he looseth the benefit thereof for the Law releiveth those which are vigilant and not dormant for otherwise a debt may be concealed or a creditor may absent himselfe and void the proceedings of the Commissioners and every creditor ought to take notice of the commission it being a matter of record Coke l. 4. f. 10. b. in Bevills case it was said that the Act of 32. H. 8. c. 2. by expresse words extendeth onely to actuall possession and seisin and not to releive those which for so long time had neglected to have actuall seisin of their services and namely of suite which ought to be made twice every yeare and it was said that it was crassa supina negligentia which that Law did not intend to releive for as it is commonly said vigilantibus c. Ibidem Coke l. 4. f. 82. b. in Sir Andrew Corbets case who deviseth Lands to R. C. and others to have and to hold to them and the survivor of them untill such time that the summ of eight hundred pounds c. was received out of the issues rents c. for the preferment of his Daughters it was resolved though the Devisee had notice of the devise yet if a stranger had occupied the Land the Devisee ought to take notice at his perill for vigilantibus c. and none by the Law in such case is bound to give him notice as in the case of arbitrement 1. H. 7.5.8 E. 4.1 ibidem And this is the reason of a lapse incurring for want of presentment or of a warranty barring for lack of entry or of descents barring for want of claime and a title to tenant in courtesy is lost for lack of entry and that Statutes of limitation do bar actions One seised of Lands devisable deviseth that his Executors shall sell his Land and distribute the profits for the use of the poore and dyeth If a
within a Mannor time out of minde of man used was to grant parcell of the said Mannar in Fee-simple and never any grant was made to the heir of his body for life or for yeares and the Lord of the said Mannor did grant to one by copy for life the remainder over to another and the heires of his body and was adjudged that the grant and remainder over was good because the Lord having a custome and interest withal might grant a lesser estate for in this custome which enableth him to doe the greater enableth him to doe the lesse Coke com f. 52. b. for omne majus continet in se minns and regularly it is true that where a man doth that which he ought to doe and more there it is good for that which is warranted and void for the rest Coke com 258. a. As if a Letter of Attorney be made to I. S. to make livery of seisin in white acre and he maketh livery in white acre and black acre there he doth idem aliud and therefore it is good for white acre that is according to his authority and void for black acre which is aliud from his authority Perk. 38. But otherwise it had been if the Letter of Attorny were to make livery of one acre and he maketh livery of two acres there it is void for both because it is not named in certaine in the Feoffment of which acre livery shall be made according to 4. H. 7. And so regularly it is true that where a man doth the same thing he is authorized to doe alio modo in another manner then the authority doth warrant there it is void for the whole Davis in case of tenures f. 21. As if I command a man to make a Feoffment in my name according to a copy shewed in Latine and he maketh a Feoffment to the same effect in English it is without warrant because he doth not pursue the authority in the same Mannor 10. H. 7. 9. So a Letter of Attorney is made to deliver seisin after the death of I. S. and the Attorney maketh seisin during the life of I. S. all is void 40. Ass 38. Authorities by Deed are to be pursued strictly and precisely both for matter and manner Davis ibidem f. 17. The Plaintiff did make a charter of Feoffment to the tenant and a Letter of Attorny to deliver livery of seisin the Attorney delivereth seisin upon condition this livery is void for the authority is not pursued in the same manner 12. Ass 24. 26. So on the contrary if the Letter of Attorney had been to deliver seisin upon condition and the Attorney maketh livery without condition this is void Co. Just 258. 11. H. 4. 3. So where an authority is given to enfeoff and he levieth a fine 10. H 7. 15. It is void Omne mandatum est temporaneum Reg. I. C. all commands are temporary and are extinguished by death which is the difference that the Civilians put between an authority and a command and that the commande is determined by the death of him that commandeth but not the authority as by these verses is signified Praeceptum non pracipitat mors praecipientis Mandatum mandatore cadente cadit But some hold opinion that they both expire by the death of him that commandeth or giveth authority which Fulbech saith is more agreeable to our Law especially in matters of Bailship of which notwithstanding these diversities may be observed A man deviseth all his lands to his Sister except one Mannor which he appointeth to pay his debts and he made two Executors and dieth the one Executor dieth yet the other may sell the Mannor and pay his debts Dyer 371. But if a Letter of Attorney be made to deliver Livery of Seisin after the death of the Feoffor the Letter of Attorney is void Coke com f. 52. b. And if a Mayor and Comminalty maketh a Charter of Feoffment and a Letter of Attorney to deliver Seisin the Livery and Seisin is good after the death of the Mayor because the Corporation dieth not But if the Lessor by his Deed licence the Lessee for life or for years to alien and the Lessor dieth before the Lessee doth alien yet is death no countermand of the licence but that he may alien for this licence was executed on the part of the lessor as much as may be M. 3. Jac. c. 23. And so if the King doth licence to alien in Mortmain and dieth the Licence may be executed afterward Coke ibidem There is a diversity between authorities created by the party for private uses and an authority created by Law for execution of Iustice As for example if a man deviseth that his two Executors shall sell his land if one of them dyes the Survivor shal not sell it but if he had devised his lands to his Executors to be sold there the Survivor shall sell it coke com f. 181. b. And if a man make a Letter of Attorney to two to do any Act if one of them dye the Survivor shall not do it But if a Venire facias be made to foure Coroners to impanell and return a Iury and one of them dye yet the other shall execute and return the same vide ibidem plura And if there be two joynt Attorneys to return Livery for another and livery of Seisin is made to one of them in the name of both this is void unless the Warrant be joyntly and severally Coke com f. 49. l. vide ibidem plura Mandata licita strictam recipiunt interpretationem sed illicita latam extensam Bacon Max. 60. lawfull Commands receive a strict interpretation but unlawfull large and extensive In committing of lawfull authority to another a man may limit it as strictly as he pleaseth and if the party authorised do transgress his authority though it be in circumstance expressed it shall be in most cases void in the whole act as hath before been demonstrated and distinguished But when a man is the Author and advisor to another to commit any unlawfull act then he shall not excuse himself by circumstances pursued Therefore if I make a Letter of Attorney to I. S. to deliver Livery and Seisin in the capitall Messuage and he doth it in another place of the land or between the hours of two and three and he doth it after or before in these cases the act of the Attorney as to execute the estate is void Or if I express the Seisin to be delivered to I.D. and my Attorney deliver it to I.B. it is void but if my Attorney maketh it to his Attorney it shall be intended for it is a Livery to him in Law But on the other side if I command I. S. to rob I. D. on Shooters-hill and he doth it on Gads-hill or to rob him such a day and he doth it not himself but procureth another to do it or to kill by poyson and he doth it by violence in all these cases he
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
not though a deed without an inrolement may pass the reversion but it was meant they should pass together if one disseise another of two Acres in Dale and the disseisee release to the Disseisor all his right in all his Lands in Dale and delivereth the release as an escrow to be delivered to the disseisor as his deed before the second of May and before that day the disseisor disseiseth him of another Acre in D. and then the releafe is delivered unto him the second day of May the right to the third Acre shall not pass because it was not his intent to release it Ployd One reciting by his Deed that whereas by prescription he hath used to finde a Chaplaine because some controversie hath growne of it granteth by the same deed to doe it this determineth not the prescription for the intent of the Deed reciting the prescription was to confirme it and not make a new grant 21. H. 7. 6. Though it be a generall rule that the words which the common people use to expresse their intent ought to be taken according to the intent and not according to the very definition in Hills and Granges case f. 170. And that generalis regula generaliter est intelligenda yet this rule is principally to be observed in cases of uses which were onely trusts and confidences between man and man Coke l. 6. f. 64. vide ibidem plura in Sir Moile Finches case And Coke l. 1. f. 100. Shelleys case we finde in diverse cases of our Books that the intention of parties is the direction of uses by a conscionable and benigne construction as if a man seised of Lands of the part of his mother maketh a feoffment in fee reserving a rent to him and his heirs by the common Law the rent shall goe to the heir of the part of the father Lit. But if a man be seised of lands of the part of the mother and maketh a Feoffment in fee to the use of him and his Heirs such use shall not goe to the heire at the common Law but in regard the Land moved from the part of the mother therfore in equity the use which is nothing else but a trust and confidence shall also goe to the heirs of the part of the mother 5. E. 4. f. 4. And though Littleton saith that a man in a Feoffment and grant shall not have a Fee-simple without these words Heirs yet if a man before the Statute of 27. H. 8. had bargained and sold his Land for mony without these words heires the bargainee had a Fee-simple because at the common Law nothing passed from the bargainer but an use which is guided by the intention of the parties which was to convey Land wholly to the bargainee for that the Law intendeth that the bargainee paid the true value of the Land for it is in equity and according to the intent of the parties the bargainee had a Fee-simple without these words heires 27. H. 8. f. 5. Coke ibidem And as Ployd f. 345. a. A fortiori the intent saith he shall be observed in wills where the words cannot be performed for Testamentum est testatio mentis but that which is other then the intention is not the testation of the minde and therefore as he saith also f. 54. b. It is the office of Judges to marshall the words of wills according to the intentions of the parties for the most part of them are made in extremity and when there is no counsell of Law ready or present and the testators themselves are not for the most part learned in the Law and are accounted inopes consilij neither have they knowledge to put words in good order and therefore the ignorance and simplicity of those which make their wills require a favorable interpretation of the words of the will according to the intent As Lands were devised to one for life the remainder for life the remainder Ecclesiae sancti Audreae in Holborne and since the death of tenants for life the Parson of the said Church sued an ex gravi querela and it was pleaded in Judgement that the remainder took no effect because the Church was not a Parson capable and upon that was a demurrer and adjudged that the devise was good and that the Parson shall have execution and yet the Parson was not named in the devise but was comprehended in it Pas 21. R. 2. If a man devise the Mannor of D. and had nothing in it at the time of making the will and that since he purchased it it shall passe by the devise for it shall be taken his intention was to purchase it and if it should not passe the will should be void to all intents Ployd f. 344. a. So if one devise Land to the wife of I. S. and I. S. dyeth and shee taketh to husband another and after the devisor dyeth shee shall have the Land and yet shee was not the wife of I. S. when the devisor dyed nor shall not take it as his wife but the intent was that shee that was the wife of I. S. at the time of the making of the Will shall have it And if a man devise Lands to Alexander Nowell Deane of Pauls and to the Chapter there and their Successors and Alexander Nowell dyeth and a new Deane is made and then the devisor dyeth the land shall vest in the new Deane and Chapter and yet it vesteth not according to the words but according to the intent for the cheife intent was to convey it unto the Deane and the Chapter and their Successors for ever and the singular person of Alexander Nowell was not the principall cause but by chance was one of the causes Ployd 344. b. If one devise by will in writing Land to one and his Heirs and then in another clause after he deviseth out of that Land a rent-charge to him and his heirs it shall be good to the one for the rent and to the other for the Land and the rent in construction of Law shall be taken to be first devised although it be last in words and so one part shall stand with the other and good sence shall be made and the intent of the testator shall be observed in both Ployd f. 541. contrary to the rule of the civill Law ubi pugnantia inter se in testamento jubentur neutrum ratum est If in the Premisses of a will one deviseth Lands to one in fee and in the end of the will he deviseth it to another in fee the latter part shall confound the former because he had last such an intent and as the last will shall repeale the former will by the same reason the last part of the will shall repeale the former part of the will which is contrary to it ibidem vide plura in Paramors case Bendloes Rep. f. 209. B. Being sick sent for a Councellor and desired him to write his last will and testament of his Lands and declared unto
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
Ed. 1. before the Statute de prerogativa regis which was made in the seventeenth year of E. 2. a long time after Britton writ which was but a declaration of the common Law Coke l. 4. f. 126. a. Neither doth this impugne the Maxime of the common Law for in this case he that is non compos mentis in no Plea that he pleadeth shall stultify or disable himselfe but all this shall be found by office by the inquisition and verdict of twelve men at the suite of the King who are not concluded to say the truth and such and office when it is found shall have relation a tempore nativitatis to avoid all mesne Acts made by one who is non compos mentis as Feoffments Gifts Leases Releases c. And after such office found if he be sued in an Action upon an obligation or writing which he hath made the King by his writ so long as the office be in force reciting the office shall command a Supersedeas to the Justices where the suite is commenced but if one of non compos mentis dye before office found after his death no office may be found and in this sense is the rule of Bracton true furiosus stipulari non potest nec aliquid negotium agere quia non intelligit quod agit A mad man cannot promise or contract for any thing or doe any businesse because he understandeth not what he doth but all such Acts may be avoided either by the King or his Heires Coke ibidem f. 126. a. b. With which the civilian rule accords furiosus nullum negotium contrahere potest But in case of non compos mentis the King hath not any interest in the Lunatick as he hath in the Idiot for that the Lunatick may recover the memory which he hath lost and therefore in the case of an Idiot the Law saith Rex habebit custodiom the King shall have the custody but in the case of non compos mentis Rex providebit the King shall provide one to have a care and charge that he that is non compos mentis and his family shall be maintained and that nothing shall be spoiled without taking any thing to his owne use but all to the use of the non compos mentis and his family and that he shall not cut down trees but for necessary House-boot Plow-boot and Cart-boote and to repaire ancient Pales as appeareth in the case of Dyer 25. b. In Trespasse against Homes quare clausuum fregit and did cut down Trees in Padington c. of one John Francis c. the Defendant pleaded that the said John Francis was a Lunatick by which the King seised his Lands by commission c. and by his Letters Patents granted custodiam gubernationem praedict Fr. sine computo reddendo the custody and government of the said Francis without rendring an account c. and he prayed aid of the King and upon demurrer it was denied and the diversity taken between the seiser of the Lands of a Lunatick and an Idiot for in the first case the King nor the Grantee shall not have any profit but they are bound to finde necessaries for him c. by the prerogative of the King but in the other case the King and his Grantee shall have the Lands to his own profit and Fitzberbert held that the Lunatick should have an account when he came to his good memory sed fuit negatum Ibid. f. 26. Pl. 164. But it seemeth by Coke lib. 4. f. 127. that he shal be accountable as a Bayly to him that is not compos mentis or to his Executors or Administrators And the King shal have the protection of an infant as well as of his Land F. n. b. 232. b. But the King shal not have the lands that the Idiot holdeth by copy for that is but an estate at wil by the common law and if the King should have the custody of it it should be a grand prejudice to the Lord of the Mannor and yet notwithstanding an alienation made by the Idiot of the copy-hold after Office found shall be avoided Dyer 302. Coke ibidem f. 126. b. But there are some acts done by a man of non compos mentis that shall not onely bind himselfe but his Heires and Executors also and therefore if he levy a fine or suffer a common recovery or acknowledge a Statute or Recognisance neither his Heire nor Executor shall avoid it for those are matters of record and cannot be avoided by a nude averrement of non sanae memoriae for the inconvenience that thereupon may ensue also such an averrement is against the office and dignity of a Judge for he ought not to take any cognisance of a fine or recognisance of him that is non compos mentis and therefore all acts that he maketh in Court of record shall bind himselfe and all others for ever and shall not have a releife in equity because it is against a ground and principle in Law that no man shall disable himselfe and if the Judge were not compos mentis yet all the Fines Judgements and all other Records which are before him shall be good because they are matters of Records Cbichell Copy-holds Vim vi repellere licet Coke com f. 162. It is lawfull to repell force by force and that by the Law of nature according to the civil rule adversus periculum naturalis ratio permittit se defendere naturall râ—â—son permitteth to defend himself against danger which is manifest in Beasts which though they have not the substance and reason of the Law yet have they a certaine shadow of it and which is not onely observed in Beasts but also in infants and children But yet as Coke in the same place saith must it be done with this caution moderamine inculpatae tutelae non ad sumendam vindictam sed ad propulsandam in juriam with the moderation of an unblameable defence not thereby to take revenge but to repulse the injury In trespasse of an assault and battery for Beasts taken the Defendant said that to all but the assault he was not guilty and for the assault he said that before the trespasse the Defendant was possessessed of an horse as of his proper Goods and of it was possessed till the Plaintiff took it out of his possession and the Defendant the same day and year requested it of the Plaintiff but the Plaintiff said that he would not deliver it and the Defendant said if he would not deliver the horse to him he would retake it in spite of him and presently took a staff which was lying on the ground and went towards the Plaintiff with it which is the same assault of which the Plaintiff hath conceived his Action Judgment if Action and the opinion of the Judges was that the assault was justifiable Kelloway 22. H. 7. f. 92. If two fight together on a suddaine and before a mortall wound be on either party the one
specie virtatis umbra Vice fairely enbellished with virtues shape And shadow doth often men delude H. 7. f. 2. As Richard the third did many whose virtues as Sir Francis Bacon histerizeth it were feined and affected things to seek his ambition and not true qualities engendred in his judgement and nature But though as Matchevill saith such vertuous shews and shadowes are sufficient to please and delude the people yet the Law Divine and the Law Humane which dimaneth from the Divine is able and doth distinguish between good and evill and as the great Legist of Rome imperat honesta prohibet contraria commandeth that which is good and honest and inhibiteth that which is evill and impious and so doe the Justices and Judges of the Law for as Bodin saith Eodin M. hist f. 50. Qui in litibus versantur Judiciorum communione omnia mala norunt nec mala duntaxat siditiam bona sinc quibus illa constare percipi nullo modo possunt bonorum autem malornm finibus omnis humana prudentia continetur Those who are versed in suits of Law by the participation of Judgements know all evill things and not onely evill but also good things without which they can no way consist or be perceived but in the limits and bounds of good and evill all humane prudence doth consist and therefore by the Law as the same Legist saith are proposed and appointed praemia virtutibus supplicia vitiis rewards to virtues and punishments to vices and is so severe in the censure of vice and evill that it will not permit any one to doe evill that good may come thereof As the Law will not permit a Creditor who is not Executor to take and retaine the goods of the Testator to pay and satisfy himselfe though the payment of his debt be a good and honest thing for by that meanes if the goods of the Testator be not sufficient to satisfy all the Creditors the rest shall be barred and if the Law should give him that power it should be the cause and occasion of wrong and the Law of God saith you shall not do evill that good may come thereof Coke l. 5. f. 30 b. And therefore doth our Law terme such an one an Executor of his own wrong and so in 17. E. 3. 59. The Friers Carmelites who had then no habitation obtained of one I. M. who was seised of ten Acres of Land of the Bishop of Winchester to have those acres of Land for their habitation and because the said I. M. could not grant to them those ten acres by reason of the Statute of Mortmaine the said I. M. and the Carmelites by covin between them to make an evasion out of the Statute of Mortmaine granted the said ten Acres to the King his Heirs and Successoers by which the Signiory of the Bishop should be extinct to the intent that the King shal grant it over to the Friers Carmlites which was done accordingly and for that it was by covin contrived before to take the Bishop from his Signiory which was an evill act it was adjudged that the Charter shall be repealed and the Friers Carmelites should be constrained to render their Charter to be cancelled for though the Friers Carmelites were of the profession of religion and had no habitation before so as it seemed a work of piety and charity to provide an habitation for them yet you shall not doe evill that good may come thereof Coke l. 11. f. 74. a. Contra jus na urale est malum pro bono reddere Ployd f. 405. b. It is against the Law of nature to render evill for good As it was a Law in a City that strangers who did goe or clime up to the Walls of the City should be punished with death but it happened that strangers innocently passing by the City heard a noise that the Enemy would suddenly assault and sack the City whereupon the strangers more reddily then the Citizens got upon the Walls and defending the City now the debate whether they should dye as the Law commanded and it was answered not because it is against the Law of nature to render evill for good vide ibidem plura Beneficium nulâ—i obtrudiâ—ur Pap. f. 212. The Law doth not obtrude or doe good turnes to one whether he will or no and therefore an alien borne shal not have medietatem linguae unlesse he request it So Damages ex incremento are allwayes to be assessed ex petitio ne quaerentis and so are costs ex incremento and upon a Writ of Error because in the beginning of the judgement it was said ideo ad petitionem quaerentis consideratum est and not ideo consideratum est ad petitionem quaerentis and the words were displaced the Judgement was reversed for the words misplaced will not supply this defect for if the usuall forme should not be observed all would fall into a confusion and in as much as the words are misplaced it is as if they had not been put in at all and therefore void like unto the case put in Walsinghams case in Ploydon where an averrment misplaced is as if it were none vide ibidem plura in Goods case Malum quo communius eo pejus an evill thing the more common it is the worser it is Coke l. 4. 109. b. For as the more common a good thing is the better it is so the more common an evill thing is the worser it is for contrariorum contraâ—ia est ratio for as the true service of God which is in publick Churches is better then that which is in private Churches for the generall good that by it may accrew so all superstitious uses which are in publick Churches are worse then those which are in secret Chambers for the generall prejudice which may accrew by them vâ—de ibidem plura Theft in the beginning in most Nations was not punished with death but with satisfaction or some lessor punishment the Pretors of Rome did punish a theef paena quadâ—upli with a foure fold satisfaction and the Jewes with seven fold or if his goods would not amount to so much with all the goods in his house Pro 6. 31. The Misians did punish petit Larceners with whips but if a thing of good value be taken away they must render the nine fold or else be put to death Fulb. Pard f. 80. But when the malice of men did increase an iniquity did abound that as the Poet in facinus jurasse putes and that many turned the crime of stealing into a trade of living and did not gaine their lively-hood with their hands by working but with their fists by fighting and stealing as the Comedian facitely ventri pugnae dant ventri suo the detriment to the republick and community of the offence made it capitall so as though the offence and the punishment being compared that Law may seeme unjust yet as Metsner faith Cum nullam aliud supersurit remedium
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