husbands because it is possible for the husband to have got it and whose soever the Cow is his is the Calfe also Swinwood f. 18. And if the issue be borne within a month or day after marriage between parties of a full lawfull age the child is legitimate Coke Com. f. 244. a. And in the legall understanding of the common Law he is said to be haeres who is ex justis nuptijs procreatus borne of lawful matrimony haeres legitimus est quem nuptiae demonstrant and he is a lawfull heire whom marriage demonstrated so to be Coke ibidem f. 7. b. Coke l. 7. f. 44. a. One who is engendred in avowtry during the coverture is a mulier by the temporall and common Law though a bastard by the spirituall Law Jus sanguinis quod in legitimis successionibus spectatur ipso nativitatis tempore quaesitum est Reg. I. C. The right of blood which is regarded in lawfull successions or inheritances is found in the very time of the nativity and therefore jus primogeniturae the tight of the elder Brother-ship in the cause of inheritance is principally to be respected because it is in the eldest Son and his issue per modum substantiae and that which is in any person per modum substantiae is inseperable from him and cannot be extended to any other besides it is against the Laws of proximity of degrees that those which are in a remote degree should be preferred before those of the next degree and therefore in all common weales for the most part proximity of blood hath been preferred of which we have a notable example confirmed by the act of Lycurgus the judicious Law-giver as when Eunonus King of the Lacedaenonians had two Sons Polydectes the elder and Lycurgus the younger and Polydectes deceased leaving no Son living at the time of his death the Scepter of the Kingdome was seated in the hands of Lycurgus afterwards when Polydectes Widdow had brought forth a Son Lycurgus did willingly and peaceably yeeld to him the Scepter which act of Lycurgus agreeth fully with our Laws whereby it is ruled that if a man have a Son and Daughter and the Son purchaseth Land and dyeth the Daughter entreth and after the Father begetteth another Son of the same Wife this Son shall have the Land 19. H. 6. b and is also ratified by diverse examples in the successions of our Kings I will instance onely in one and the most illustrious one King Edward the third being deceased Richard the second the Son of his eldest Son obtained the Kingdome and was preferred before John Edmund and Thomas the sons of the same King wheras any of them was more worthy and fit for the Scepter yet is it granted that in succession of regall dignity jus primogeniturae is not constantly observed because in that case the good of the common-weale and commodity of the people is politically to be respected and as the Civilians the good estate of the Kingdome and Subjects is more to be heeded quam sangninis series then the pedigree of blood and so Solomon the younger Brother was advanced before the elder by the hand of David his Father and Roboam preferred Abias his younger Son yet this must be done cautiously and with a good conscience and intention and probably for the utility of the State otherwise it will neither please God nor man yet in the disposing of private estates the Law of Primogeniture is more strictly to be observed because by it confusion and dissention is avoyded which from the contrary doth proceed as is intimated by Coke l. 3. f. 40. b. Wherein our Law excelleth which preferreth the elder Brother and his issue before the younger Brother and his issue in case of descent and that jure sanguinis by his birth right as he is most worthy of blood and therefore as Coke in his com f. 14. a. The male and all descendant from him shall inherit before the female and among the males the eldest Brother and his posterity shall inherit Lands in Fee-simple as heire before any younger Brother or any descending from him whereas by the Civill Law the inheritance is divided among the males Lutleton l. 1. c. 1. There be three Brothers and the middle Brother purchaseth Lands in Fee simple and dyeth without issue the elder Brother shall have the Land by descent so also it is if the youngest purchaseth Lands in Fee and dyeth without issue the eldest shall have it jure sanguinis because he is the worthiest of blood Little So if a man enfeoffe another upon condition and the condition is broken and then the Feoffor dyeth without issue his wife privement ensaint and the Brother of the Feoffor enter for the condition broken and after a Son is borne he shall avoid the possession of the Uncle and may lawfully claime the inheritance 9. H. 7. 25. And 9. H. 8. 23. It is said that after two or more descents the heire afterwards born claiming by descent may enter into Land but he shall not have a Writ of account for the meane profits And though Littleton in defence of the custome of Gavelkind by which the issues may equally inherit alledgeth the reason that every Son is as great a Gentleman as the eldest Son is yet as Sr. Edward Coke com a. f. 14. saith Gentry and arms doth not descend to all the brethren alike for the eldest jure primogeniturae shall beare as a badg of his birth-right his Fathers armes without any difference because he is more worthy of blood but all the younger brethren shall give severall differences additio probat minoritatem and the addition demonstrateth and proveth the minority of the issue but by the Statute of 31. H. 8. A great part of Rent is made descendible to the eldest Son according to the course of the common Law for that by the meanes of that custome diverse antient and great families after a few descents came to very little or nothing according to the simile of the Poet In plures quoties rivos deducitur amnis Fit minor ac unda deficiente perit A Flood deduced into little streames Coke ibid. Soone groweth lesse and falleth by that meanes But in cases of purchase it is otherwise a. 15. E. 4. If a man devise land to a man and his heire and the devisee dieth having issue a daughter his wife privement enseint with a son who is afterwards borne the daughter shall enjoy the Land in perpetuum And 9. H. 6. 23. It is said that if the remainder cannot vest at any time when it falleth it shall not vest in him is borne afterwards where another hath entred before 2. Eliz. 190. Pl. 18. If a lease for life be made the remainder to the right heires of I. S. and I. S. is then alive the inheritance passeth presently out of the Lessor but cannot vest in the heire of I. S. for then living his father he is not in rerum natura for non
part which agreeth not with the whole Ployd f. 161. a. And therefore every part of a deed ought to be conferred with the other and one entire sense thereupon to be made as if I release all actions and stay there all actions are gone but if I say further which I have as Executor to I. S. there the generality is restrained So 17. E. 4. f. 22. The King granteth to Garter King of Heralds ten pounds for the terme of his life if he had stayed there he had had it absolutely for terme of his life but where he faith further by reason of his Office by it hee hath restrained the generality vide ibidem plura in Throgmortons case so as if he be removed from his Office he shall lose his annuity Parte quacumque sublata integrante sive necessaria tollitur totum the substantiall or necessary part of any thing being taken away the whole is destroyed Coke l. 3. f 41. in Ratcliffs case As none can be procreated but of the father and the mother and ought to have in him their two bloods which bloods commixed in him by lawfull marriage constitutes and makes him heire so none can be heire to any unlesse he hath in him both the bloods to whom he shall be made heire and therefore the heire of the halfe blood shall not inherit because hee wanteth one of the bloods which make him inheritable for the blood of the father and mother are but one blood inheritable and both are necessary to the procreation of an heire and therefore if there be Baron and Feme Donees in speciall taile and the Baron is attainted of treason and executed having issue and the Feme die the issue shall not have the Land because the father is attainted for he ought in his lineall conveyance to make himselfe heire as well of the part of his father as of the part of his mother Dier f. 332. b. And that bar and forfeiture is made by the Statute of 26. H. 8. c. 13. which provideth that every offender convict of high treason shal forfeit to the King c. All his Lands c. saving to every person all his right title interest c. so as the issues in taile are barred by that statute because the heire is disabled and cannot make himselfe heire in his lineall convâ—yance as well to the father as mother Coke l. 9 f. 140. a. upon which reason Britton saith that if one be attainted of felony by judgement the heires engendred after the attainder shall bee excluded of all manner of succession of inheritance as well of the part of the father as of the part of the mother because at the time of the generation of him the fathers blood was corrupted et ex leproso parente leprosus generatur filius Coke l. 3. f. 41. vide plura From the circumstances of time and place MOmentum instans est unum indivisibile in tempore quod non est tempus neque pars temporis ad quod tamen partes temporis copulantur Ployd 110. b. The distinction of a moment cannot be discerned or observed in the actions of men who cannot doe any thing without the space of time yet as Ployd f. 258. b. in Madam Hales case in things of instant there is a priority of time in the consideration of the Law as in a felon of himselfe the forfeiture shall have no relation but to the time of his death and the death precedeth the forfeiture and notwithstanding the forfeiture commeth at the same instant when he dieth yet in consideration of Law one shall bee said to precede the other though both shall be said to come at an instant for every instant hath the end of one time and the commencement of another and so in the death of a Felon of himselfe the death and the forfeiture commeth together and at the same time and yet there is priority to wit the end of his life is the beginning of the forfeiture and yet the forfeiture is so neere the death that there is no meane time betweene them but are conjoyned for a moment or instant is one indivisible thing in time which is not time nor part of time to which notwithstanding the parts of time are conjoyned vide ibidem plura and in the case between Fulmasten and Steward fo 110. So Fulbeck in his Pandects L. 1. f. 9. b. The existence of a moment cannot possibly be discerned and therefore is not so much as the twinckling of an eye yet the Law doth operate without compass of time in an instant but man never for every act of man must have space longer or shorter but the nature of such instants as the law doth imagine is such and so suddaine that as the Civilians omnom respuunt moâ—am and the reason is because in the operation of the law that which is imagined to be done is dicto citius presently done and whereas the act of man is mixed with the act of Law though in regard of the same thing the act of Law is momentary yet the act of man must needs beare some delay as those things by the civill law which are taken from the enemies doe incontinently become his who doth seise and take them the law doth give them unto him presently yet there must be a time to take them that the Law may give them So if a Lease be made to A. for the life of B. and A. dyeth C. entreth into the Land and enjoyeth it as occupant the Law because it will not have the freehold in suspence doth imagine that it was presently and immediately in him after the death of A. and that he entred presently but if we respect the entry as the Act of man we must needs conceive that he had some time to enter into the Land and by his entry which is an act of motion to gaine the free hold ibidem Quae incontinenti fiunt in esse videntur Coke l. 8. f. 77. a. Those things which are done in an instant seeme to be in esse or in being in Staffords case as a particular estate and the increase of a particular estate ought to take effect by the same deed or grant or â—y two deeds delivery at the same time which is all one in effect for those things which are done in an instant and at the same time seeme to be in being And the particular estate and the increase of the estate upon it is but one grant to take effect out of the same root and though that it vesteth at severall times yet when it vesteth it hath the vigor and force of the same grant 27. H. 6. f. 7. So l. 2. f. 71. a. A condition cannot precede an estate but ought to be in the said conveyance or comprised in another deed delivered at one and the same time as the books are agreed in 17. Ass 2. and 34. Assise for the above said reason vide ibidem S. Cromwels case But Coke com f. 236. putteth
in possession by the antient Law the entry of the disseisor for his negligence had beeâ— taken away which now is onely by descent many aâ—â— continuall are the mutations of the Law according to the changes of the time For the rule and ground holdeth quod perpetua lex est nullam begem humanam ac positivam esse perpetuam that it is a perpetuall Law that no humane or positive Law is perpetuall Bac. Max. f. 70. Tempus edax rerum Coke l. 3. f. 21. A. maketh a lease for years to B. and when the Terme is ended the remainder to C. the reversion is good for it is certaine enough that every terme shall end for time is the consumer and divourer of things Distingue tempora concordabis leges the times being distinguished the Law will be reconciled Coke l. 9. f. 16. b. The King by the Statute de bigammis 4. E. 1. when the heire was of full age had nothing but primam seisinam capiendo exitum the profits of the Land in effect for one yeare but could not endow the Feme because after the Heire was of age he was not guardian and for that reason he could not endow the Feme at the common Law no more then guardian in chivalry might who though after the Heir was of full age did hold the Land further for the value of the marriage no Writ of dower did lye against him because he was not guardian yet afterwards by the Statute de praerogativa regis 17. E. 2. the King had power to endow the Feme although the Heire were of full age si vidua illae voluerint so as the Statute leaveth it to the election of the Feme whether shee will be endowed in the Chancery or at the common Law so as by distinguishing the times the difference of those Laws are apparently agreed and reconciled Omnia tempus habent habenâ— sua tempora tempus Coke l. 10. f. 82. a. All things are subject to time and time it self hath also its times as by the Statute of 34 H. 8. three severall Times ought to concurr in a devise whereby the King may have the value of the third part the first is tempus habendi every person having the 2d is tempus tenendi holding of the King the third is tempus disponendi may â—ive and dispose as if a man be seised of one acroâ—â—f Land in fee in chiefe by Knights service and of two other acres in fee holden in socage and the Tenant infeoffe his youngest Son of the acre holden in chief and of one of the other acres to have to him and his heirs and afterwards purchaseth Lands holden in socage he may devise all his Lands newly purchased holden in sooage because he had no Lands holden of Knights service in Capite at the time of the devise for the acts have made a conjunction of the Lands which the Tenant holdeth in socage with the Land which he holdeth of the King by Knights service in Capite so as when the Tenant hath conveyed the Land holden in Capite to his youngest Son now when he made his Will of the Lands so newly purchased he had no Lands holden of the King in Capite at the time of the devise and the Statute restraineth only those Lands in socage which he had at the time of having of the Lands holden in Capite vide ibidem plura in Loveys case For Judicis officium est ut res ita tempora rerum Quaerere quaesitâ— tempore tutus eris A Judges part it is to ponder things with time And by the square of time sure Judgment so to finde Coke Com. f. 202. a. If a rent be granted payable at a certaine day and if it be behinde and demanded that the Grantee shall distraine for it in this case the Grantee needeth not to demand it at the day but if he demand it at any time after the day he shall distraine for it for the Grantee hath election in this case to demand it when he will to inable him to distraine But upon a Lease for years reserving a rent upon condition that if the rent be not paid at Michaelmas or within one and twenty dayes after that then he may re-enter the tenant is not bound to pay the rent or tender the mony before the last instant of the last day but if he do not then the Lessor may re-enter and have the Land and the rent also but if the Lessor be not at the time there to receive the rent he cannot re-enter though he demand the rent before Brook Intender 41. unlesse before the Lessee meets the Lessor upon the Land and tender the Rent on the same day Coke Com. f. 22. a. Ployd f. 392. 393. a. Where a thing is referred to a time which declareth certainly if it be mistaken all shall be void as Trin. 7. E. 3. 26. One bringeth a Writ and reciteth that it is contained in the Articles made in the time of Edward the second and declared further according to the statute and the writ was abated by award for that those Articles articuli super chartas C. 9. were made in the time of Edward the first So Tr. 18. E. 3. f. 25. A statute Merchant was made to be paid in the sixteenth yeare of E. 3. and the party sued execution and the Writ supposed the sum to be paid in the fourteenth yeare of E. 3. and by the suit the Feoffee was outed whereupon he sued a Writ of error in the Kings Bench and the writ was abated and it was said that the time declared certainty for it might be that there were two statutes payable at diverse severall daies and therefore the day of payment was materiall ibidem So if a defeasance be made of a statute which reciteth it to be made the tenth day of May where it beareth date the first day of May the defeasance is void for the misprision of the time for the law saith that it may be that there was two statutes the one bearing date the first day and the other the tenth day vide ibidem plura in the Earle of Leicesters case A loco from the place LOcus pro solutione reditus aut pecuniae secundum conditionem dimissionis aut obligationis est stricte observandus Coke l. 4. f. 73. a. in Burchers case The place for the payment of money or rent according to the condition of a Lease or obligation is strictly to be observed As if a common person maketh a Lease of Lands in R. reserving a rent to be generally paid at such a feast upon condition of re-entry if it be not then paid the demand must be upon the land for the land is the debtor and therfore that is the place of demand appointed by the law and if there be an house upon the land he must demand the rent at the house and not at the back doore but at the fore doore because the demand must be made at the most notorious
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
yet it is in danger of the words of the Act. In an appeale brought by the wife of the death of her husband the son being an abettor shall not render damages but shall avowe the abettment as neer in blood Cuique natuâ—ale est id quo'd procreavit tueri Ployd 304. a. As matrimony is necessary betweene man and woman and that there is a naturall desire in them and all other living creatures to procreate and relinquish a thing like unto themselves id non animi judicio not by the arbitrement of the mind nor as a thing indifferent which a man may doe or not doe but is a naturall appetite to which nature urgeth us so hath nature instilled love in the procreator to the thing procreated which urgeth him to have a care to the education of the thing procreated to provide for him all things necessary and to defend him against all perils and therefore hath the common law given to the father the custody and education of his son and if any one take him from him he shal have the writ against him Quare filium heredem suum rapuit and that law is in satisfaction of nature but in his writ he must say Cujus maritagium ad se pertinet because the marriage of his son and heire and of his daughter and heire appertaineth to him who being once married he cannot have this Writ 11. H. 4. 23. M. 33. H. 6. 55. Fulb. l. 1. 80. And if a man taketh way another mans son and heire apparent and bestoweth upon him good aparrell and the father seiseth his son he shall not be impeached for taking of the apparrell for in that he may make a good justification for the taking of the body it must needs extend to the apparrell of the body because the law considereth not bare and elementall bodies but bodies apparrelled 12. H. 4. 16. 8. E. 2. Trus. 31. 32. E. 3. Guard 32. Ibidem Amor descendit Ployd 293. b. Osbornes case it is an old saying that love descendeth which by experience is found to be more true then to ascend and for that reason the law which greatly tendreth the preservation of infants hath appropriated the custody of them and their lands in Soccage to their parents because they love their children best and in default of them to their other Ancestors more neere in blood and in naturall affection to them and that is for the profit of the infant for the guardian must keep the infant with the land and of the rest of the profits give an account to the infant and if the guardian die the executors shall not have the guard of the infant because they are voide of such naturall affection but the neerer Ancestor shall have it Quaelibet haereditas naturaliter quidem ad haeredes descendit nunquam autem naturaliter ascendit Glan l. 7. c. 1. Every inheritance doth naturally descend to the heires but never naturally ascendeth Coke l. 3. f. 4. in Ratcliffs ease of which Bracton giveth this reason quod quasi ponderosum quiddam jure naturae descendit nam omne grave fertur deorsum that as a certaine ponderous thing it by the law of nature descendeth for every heavy thing descendeth downewards to which this reason may be added that as the affection of love so doth the effects of love descend for as Aristotle the reason why parents love is so fervent and permanent to their issues is because love doth descend and their descending love appeareth in that they make provision for the present sustenance of them and future maintenance and continuance of their name and therefore as Mr. Ployden saith it is a great blessing of God upon Parents to have issue male to whom they may leave the fruits of their labours and establish their estates and inheritances in their names Ployd 305. b. to which by love and naturall instinct they are incited But on the contrary as the love and provision of children towards their Parents doth not naturally ascend for the thing procreated doth not actually provide for the procreator where it is sui juris so there estates and inheritances should not ascend and therefore as Mr. Littleton it is a maxime in our law that inheritance can lineally descend but not lineally ascend wherein the civill law unnaturally differeth from the common law for the civill law alloweth lineall ascention as well as lineall descent lineall and collaterall descent but not lineal ascention of inheritances as it doth which as Coke is one of the causes of such diversities of opinions in cases of descents in the civill law and the contrary is one of the causes of the certainty of the rules of the common law in cases of descent inheritance Coke l. 3. f 49. b. If there be father Vncle and son and the son dyeth the Vncle shall be heire to the son because inheritance cannot lineally ascend for by this maxime onely lineall ascention in the right line is prohibited and not in the collaterall Coke ib. com f. 11. b. but otherwise it is in case of purchase as if a lease bee made to the sonne the remainder to the next of blood the father in this case shall have the remainder because he is next of blood and so administration may be granted of the goods of the son or daughter to the father and mother as next of kin 5. E. 6. Coke ibidem Haeres est alter ipse filius est pars patris Arist Coke l. 3. f. 12. The heir is another son and the son is a part of the father and for that reason if a man be seised of three Acres of Land and acknowledgeth a recognisance or a statute c. and enfeoffeth A. of one Acre B. of another and the third descend to the heire in this case if execution be sued onely against the heire he shall not have contribution for the heir sitteth in the seat of his Ancestor and though the father be dead yet is he as it were not dead because he hath left his like and the heir is a second same and the son is part of the father and therefore the heire shall not have contribution against any Purchasor though in truth the purchasor came to the land without any valluable consideration for the consideration of purchase is not materiall in this case and though in the case of a recognisance statute or judgement the heire is charged as terre-tenant and not as heire 27. H. 6. Execu 135. because in either of them the heire is not bound yet hee shall not have contribution against the purchasor contrary to the opinion of Finchden in 48. E. 3. f. 5. b. for the reason abovesaid yet is the heire not charged meerely as terre-tenant for he shall have contribution against those who are heires as himselfe Popham f. 171. And for the like reason if a man bindeth him and his heires to pay a certaine sum at a day and dieth it is at the election of
if an Action of wast be brought by two joynt-tenants the release of one shall bar the other as it is holden 9. H. 5. f. 15. by the Court for in wast the personalty is the principall and though one joynt-tenant cannot prejudice the other in regard of the matter of inheritance or franke tenement yet in regard of the profits of the frank-tenement they may vide ib. plura If husband and wife purchase socage lands to them and their heires of their bodies and they having issue within fourteen yeares of age doe dy in this case if the grandmother of the part of the mother of the issue first seise the Ward she shall have the Wardship and not the grandfather of the part of the father of the issue 8. Eliz. 296. b. because they are in aequali jure and where the right is equall the condition of the possessor is the better To which obiter may be annexed the sage judgement of Augustus who after the civill wars being molested with the complaints of diverse who demanded many places of ambiguous right from the possessors because they severally were given by the Senate Pompey Caesar Lepidus or Augustus to the Souldiers gave sentence for the possessors Duo non possunt unam rem in solido possidere R g. I. C. Vlpiamus Coke com f. 368. a. Two cannot possess one and the same thing fully and wholy for dominion had its beginning from possession and as there cannot be two Lords and Masters of one and the same thing fully and wholly so cannot two fully and wholly possess one and the same thing As if A. of B. be seised of a Mese F. of G. that hath no right to enter into the same Mese claiming the said Mese to hold to him and his heires entreth into the said Mese but A. of B. is continually abiding in the same Mese In this case the possession of the frank-tenement shall alwaies be adjudged in A. of B. and not in F. of G. because where two be in one house or other tenements and the one claimeth by one title and the other by another title the law shall judge him in possession that right hath for two cannot possess one and the same thing fully and wholly But if a man hath issue two daughters Bastard eigne and mulier puisne and dieth seised and they both enter generally the sole possession shall not be adjudged onely in the puisne because they claime by one and the same title Coke ibidem Yet though the possession of one thing cannot be fully and wholly but in one yet the property may be in two as Ployd f. 5. 24. Manwood said it is not strange in our law that two should have a severall interest in one and the same terme and two properties in it for if lessee for yeares grant over his terme to another by deed indented rendting rent and that for default of payment that he shall enter and retaine till the grantee hath paid to him the rent if he doe enter for default of payment and retaine he hath one property and the grantee also hath another property for his interest is not gone but hath a property tel quel such as it is and may have all the property upon payment of the arreares So if one hath a terme for yeares and is bound in a recognisance or statute staple and execution for non pay-ment is sued against him and the terme is extended and a certaine annuall value delivered to the Connusee as it well may be for it may bee sold out-right or extended to an annuall value there the connusee hath one property for the payment of his debt and the lessee another property and upon the payment of the debt shall have the terme again A woman made a lease for yeares of mills in Kent with exception that she should have the profits and there was a great debate whether the exception were good or no because the profits of the mills was all the benefit and in effect the mills themselves but at the last the exception was judged good in law and that the woman should have the profits There if shee enter to have the profits she hath one property and the lessee another property and it is incertaine how many yeares the property of the woman will continue So if one Lease sheep for a time to manure his land or pawn his dog as the case was in 5. H. 7. The owner hath some property and he to whom the Sheep is leased or the dog pawned another Ployd ibid. Possessio fratris de feodo simplici facit sororem esse haeredem The possession of the brother of a fee simple maketh the sister to be heire Littleton Coke com f. 14. b. As if one hath issue a son and a daughter by one venter and a son by another venter and dieth seised of Lands in fee-simple and the eldest son entreth into the land and dieth without issue the Sister shall have the land and not the younger son though the younger son be heire to the father for the possession of the brother of the fee-simple maketh the sister to be heire but the brother must be in Actuall possession and there must be pedis positio a corporall fixing of his foot and entry upon the land and there must be some Act done to make her heire for she is but haeres factus by the actuall possession of her brother for the younger son is haeres natus to the father and if the eldest son had died before he had taken actuall possession the younger son might have entred and had the land as heire to the father but by the possession of the brother she being of the whole blood is made heire But in dignities where no possession can be had but such as descendeth to a man and his heires as in Dukes Earles Barons c. there can be no possession of the brother to make the sister inherit but the younger brother being heire to the father shall inherit the dignity inherent to the blood as heire to him was first created noble Coke ibid. And as Ploydon saith there is a great difference betweene lands in fee-simple and lands tailed in regard of possession for the possession of a brother of an estate taile as heire to his father shall not make the sister to be heire but it shall descend to the younger son of the halfe venter for he ought to have it per formam doni Ployd f. 57. a. And if a Bastard eigne abare in fee-simple land after the death of the father and dieth seised without interruption and his issue enter he shall hold it and the right of the mulier puisne and his heires are bound for ever Ployd ibidem So if a woman seised in fee consent to a ravishor and the daughter which is proxima de sanguine next of blood doth enter there the son after borne shall not take away the title and possession of the daughter So where a
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
tenant of the Land to be summoned whereas he was not summoned and the tenant looseth by default upon the grand Cape returned the tenant may have a writ of deceit against the recoverer and against the Sheriff for his false returne F. N. B. 97. C. and may defeate the judgement and no damages shall be recovered against the Sheriff in such case onely he shall be fined 5. E. 4 4â— And if he dye his heire may have an action of deceite and restitution of the Land 8. H. 6.5 If a man bargaine with another and assume upon consideration to enfeoff him of ceraine Land and he enfeoffeth another he to whom the assumpsit was made may have an action of deceite or an action upon the case at his pleasure 3. H. 7.14 If one selleth to another a horse which he knoweth to have a secret disease in his body or selleth Corne which is full of gravell an action of deceite lyeth 20. H. 6.36 without warranty but F.N.B. 94. C. is of the contrary opinion If the Sheriff arrest the body by a Capias ad respondendum and returneth not the Writ the party shall have an action of false imprisonment Kell way f. 3. b. The Law ordaineth that he who will be sure of his goods shall buy them in Market overt and that sale shall bind all strangers as well as vendors and yet it is agreed in 33. H. 6. That sale in open Market shall not bind him who hath right to the goods if the sale be by fraud or the Vendee hath notice that the property of the goods appertaineth to another So the Law hath ordained the Court of the common Pleas as Market-overt for the assurances of Lands by fine so as he that will be assured of Land not onely against the Vendor but against all strangers it is good for him to passe it in this Market-overt by fine yet Covin and deceite shall avoid it overt by fine yet Covin and deceite shall avoid it 〈…〉 a Feoffment by Covin which amounteth to a wrong and disseisin Fine levyed by him who is particeps criminis and who had not nor pretended to have any right to the land shall not be a bar to the Lessor Coke l. 3. f. 78. Fermors Case A resignation made by an Abbot by covin shall not abate the Writ 4 E. 2. 22. A covenous Conveyance that assets shall not descend is not of force 34 E. 3. 19. 19 E. 2. 3. And 17 E. 3.59 That an estate made to the King and Letters patents granted over and all it by covin between him that granted to the King and the Patentee to make an evasion out of the Statute of Mortmaine shall not bind but shall be repealed A presentation obtained by fraud and deceit is voyd Dyer 339. b. Letters of administration obtained by fraud and covin are voyd and shall not repeale the former administration Dyer 339. a. vide Dyer 295. many Cases there put concerning covin If I sell to one cloath and warrant it to be of such a length and it is not of such a length the buyer may have an action of the case against me by vertue of the warranty although the warranty be by word and not written but if the warranty be made at some other time after the bargaine he may not have a Writ of deceit unlesse it be made by writing F. N. B. 98. k. If a man sell to one Seeds and warranteth them to be of another Countrey if they be not a Writ of deceit lyeth but if he warrant that the Horse which he selleth should go fifty miles in a day or that the Seeds shall grow it is otherwise And a Writ of deceit lyeth for selling of corrupt Victuall without warranty but not for selling of rotten Sheep though it be with warranty but to warrant a thing which is evident to sense as to be black which is blew is voyd unlesse the buyer be blind or the thing which is bought be absent 11 E. 4 7. 3 H. 4. 1. If I sell one certaine Pipes of Wine and warrant them to be good and they be corrupt the Vendee may have an action of the case against the Vendor F.N.B. 99. b. Yet according to the opinion of some an action will lye without warranty 7 H. 4. 14. But Master Fitzherbert saith that there ought to be a warranty and his taste ought to be his judge in such case and where it is with warranty the Writ must say that the Defendant at the time of the warranty made knew that the Wine which he sold was corrupt A Writ of deceit was brought for selling a certain quantity of Wooll and warranting it to be fifty sacks whereas it wanted of that measure the Defendant pleaded in bar that it was weighed before the sale and the servants of the Plaintiffe being his Factors did accept of it and carryed it beyond the Sea whereupon the Plaintiff demurred 13 H. 4. 1. Semper qui dolo fecit quominus haberet pro eo habendus est ac si habet Reg. J. C. Alwayes whosoever shall give or grant any thing by fraud whereby he may seem not to have it he is to be esteemed as if he hath it And therefore if a man by fraud make a Deed of gift of all his goods to one of his Creditors to deceive the rest the gift by the Statute of 13 Eliz. is voyd Twins case l. 3. f. 81 quod vide where you shall finde the signes and marks of fraud accurately and fully discovered And Coke l. 5. f. 60. a. b. debt against the heire upon an obligation the Defendant pleaded Riens per descent the Plaintiff replyed that he had Assets in D. c. and the Plaintiff giveth in evidence that the father dyed seised of lands in fee the Defendant sayd that he aliened before the Writ the Plaintif averred by covin and proved that it was done by fraud to defraud the Plaintiff and therefore it was resolved to be voyd by the Statute of 13 Eliz. c. 5. and that the fraud might be wel given in evidence because the Statute saith that the estate as to the Creditors shall be voyd and therefore shall be taken by favourable interpretation for to suppresse fraud and that it shall be mischeivous to the Creditors and increase maintenance and covin if the Plaintif should be driven to plead that the Feoffment was by fraud because it is commâ—nly hatched in arbore cava and so artificially covered and concealed that the party grieved hath no meanes to find and know it and therefore jâ—dgment was given for the Plaintiff viâ—â—e ibidem And Burrels case l. 6. f. 730. a. and l. 8. f 133. in Turners case So Hobart f. 72. Humbertons Case Humberton recovered a debt against T H. and dyed and upon a Scire facias against the Ter tenants the Sheriff returned J. H. Tenant of an house that was his at the time of the judgement and J. H. came in and pleaded that T. H.
by misadventure as by an Arrow at Butts this hath a pardon of course but if a man be hurt or maimed onely an Action of Trespass lyeth though it be done against the parties will and he shall be punished in the Law as grievously as if he had done it of malice Stanf. 16.6 E. 4.7 So if a Chyrurgion authorized to practise do through negligence of his cure cause the party to dye this Chyrurgion shall not be questioned for his life yet if he do onely hurt the Wound whereby the cure is cast back and death ensueth not he is subject to an Action of the Case for it Stanf. 16. So if Baron and Feme commit Felony together the Feme in regard of the subjection of her will to her husband shal neither be principal not accessary but if they joyn in committing a Trespass upon land or otherwise the Action may be brought against them both So if an Infant wanting discretion or a mad-man kill another he shall not be impeached thereof but if they do him any corpâ—rall hurt he shall be punished in Trespass 35 H. 6. 11. So in Felony if the principall dye or be pardoned the proceeding against the accessory faileth But in a Trespass if one commandeth his man to beat you and after the Battery the Servant dyeth yet you may have an Action of Trespass against the Master 17 H 4.19 Aestimatio praeteriti delicti post facta nunquam crescit Bac. Max f. 32. In penall Lawes and Facts the Law considereth the degree of the offence not as it standeth at this time when it is committed but for any circumstance or matter subsequent the Law doth not extend or amplifie the same As if a man be wounded and the Percussor is voluntarily let to go at liberty by the Goalor and after the party wounded dyeth yet it is no Felonious escape in the Goaler 11 H. 4.12 So if one conspire the death of one who after cometh to be King not being within the Statute of 25 E. 3. this is high not high Treason but otherwise it is in civill and common cases vide ibidem Plur. Ipsae etenim leges cupiunt ut jure regantur Co. l. 2. f. 25. In omnibus quidem maxime tamen in jure aequitas est Reg. I. C. In all things but especially in the Law there is equity and the Lawes themselves desire to be ruled by equity For inasmuch as no Legislators can foresee all things which may happen it was therfore convenient as Ploydon saith that that fault should be reformed by equity And is either an amplification or diminution of the Law and no part of the Law but a morall vertue which reformeth the Law for dirigens and directum are diverse things and equity is not a Law but the emendation of the Law and therefore the Lawes themselves desire to be ruled by equity As whereas the Debtor after he is become Bankrupt may prefer one and defraud others the Act of 13 Eliz. c. 7. hath appointed certain Commissioners of indifferency and credit to releive the Creditors of the Bankrupt equally and that there shall be an equall and rateable proportion observed in the distribution of the Goods of the Bankrupt among his Creditors having regard to the quantity of their severall debts so that one shall not prevent the other but all shall be in aequali jure and so we see in many cases as well at the Common Law as upon the like statutes such constructions have been made for as Cato said Ipsae etenim leges cupiunt ut jure regantur and therefore is it holden 35 H. 8. Title Testaments V. de plura in Herberts case lib. 7. Bro. 19. A man holdeth three Mannors of three severall Lords by Knights-service every Mannor being of equall value he cannot devise two Mannors and leave the third to descend according to the generality of the Acts of 32. 34. H. 8. of Wills for then it shall prejudice the other two Lords but by equall construction he cannot devise but two parts of every Mannor and so as equality shall be observed among them and so at the Common Law an equality is required as in 11 H. 7. 12. b. a man is bound in an Obligation and his Heirs and he hath Heirs and hath lands of the part of his Father and part of his Mother both the Heirs shall be equally charged vide ibidem plura Co. Com. f. 10. a. If partition be made between Parceners of lands in Fee simple and for novelty of partition one granted a rent to the other generally the Grantee shall have a Fee-simple without this word Heirs because the Grantor hath a Fee-simple in consideration whereof he granted the rent Ipsae etenim leges c. And Co. Com. f. 271. a. b. when a Feoffment is made to a future use as to the performance of his last Will the Feoffee shall be seised to the use of the Feoffor and his Heires in the mean time for the Lawes desire to be ruled by right and equity And reason would that seeing the Feoffment is made without consideration and the Feoffor hath not disposed of the profits in the mean time that by construction and intendment of Law the Feoffor ought to occupy the same in the mean time And so it is when the Feoffor disposeth the profits for a particular time in presenti the use of the Inheritance shall be to him and his Heires as a thing not disposed of Co. ibidem Co. l. 5. f. 100. a. The Commissioners of Sewers by the Statute of 6 H. 6. c. 5. and 23 H. 8. c. 5. ought to tax all equally which are in danger to be endamaged by not repairing the Banks and not him onely who hath land adjoyning to the River for otherwise the rage and force of the water may be so great as the value of the land adjoyning shall not serve to repaire the Banks and therefore the Statutes will have all who be in the same perill and are to receive commodity by it to be contributory and the statutes require equality which well standeth with the rule of equity for equitas in Bracton est quasi aequalitas and though the Owner of the Land next adjoyning to the River was bound by prescription to repaire the banks of the River yet the Commissioners ought not to charge him only with all but to take all those which have lands in danger for otherwise it may that all the country shall be surrounded before that one person onely can repaire the Banks vide ibidem plura In Fooks case Coke l 7. f. 123. b. When the King granteth any Land without the reservation of any Tenure or without any thing from thence to be rendred or the like that land by the operation of Law shall be holden of the King in Capite by the service of Chivalry according to the rate and proportion of land that affereth to one fee of Chivalry and so of more more and of lesse lesse for the
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
their Predecessors but excuse themselves and answer for their proper fact and demeanor for it is a common erudition that the Defendant in his answer and bar ought either to traverse or confess and avoid the Plaintiff vide ibidem plura Yet in Treasons and Felonies one shall be punished for anothers offence and by our Law and not without good reason the Sons of them which are disloyall Subjects and Traytors to their Prince are barred from the Inheritance of their Ancestors that their Fathers infamy may alwaies accompany them and that their life should be a punishment to them and their Fathers fault a continuall corasive and that is done because their Fathers Ulcers are feared in them and that being bred and brought up of naughty Parents they will be prone to do the like and this penalty is used in the nature of a medicine that by suffering shame he may be deterred from crime and therefore as Coke com 5. f. 391. l. by his attainder of Treason or Felony is the blood so stained and corrupted that his Children cannot be Heires to him nor to any other Ancestor And therefore where the Tenant is outlawed of Felony it is in the Lords election to have a Writ of Escheat supposing that his Tenant was outlawed of Felony or that he died without Heir for by the attainder the blood is corrupted 48 E. 3. 2. But it seemeth by Nichols case that the party attainted ought to be dead before the land can escheat for according to Dyer and Brian in the Kings case after the attainder and till Office be found the Fee-simple shall in facto be in the person of the attainted so long as he shall live for as he hath a capacity to take lands of a new purchase so he hath power to hold his ancient possessions and he shall be Tenant to a Praecipe and if he died before Office found and the land be held of the King the land shall go to the King in nature of a common Escheat Ployd 477. Nichols case but in case of Treason the King shall be presently after the attainder in actual possession without Office found by the Statute of 33 H. 8. c. 20. If the Father purchaseth land and his eldest Son is attainted of Felony and dieth the next in degree of descent and worthiness of blood unto the Son attainted shall not have the land but it shall escheat to the immediate Lord of whom the land is held for the blood is corrupted otherwise it had been if he had died in the life of the Father having no Issue Dyer 48. An account is brought against two the one entreth into an account and it is sound against him it shall bind both 44 E. 3. 18. One is imprisoned in the Marshalsey and a stranger breaketh the Prison and the prisoner escapeth the Marshall shall be charged for the whole debt If I have a way over the lands of twenty men and one of them stoppeth the way in his land I shall have an action against all those over whose lands the way was 33 H. 6. 26. by profit A rate is put upon a Town for the fees of a Knight of the Parliament The Beasts of him hath paid his part are taken for the residue he shall not have a Replevin but the beasts shall be sold to pay his duty 11 H. 4. 2. In quo quis delinquit in eo de jure est puniendus Co. com f. 233. b. In what one offendeth in the same by right he is to be punished As if any Keeper kill any Deer without warrant or fell or cut any Trees or under-woods and committeth them to his own use it is a forfeiture of his Office for the destruction of the Deer is by a mean the destruction of the Venison And so it is if he pull down the Lodge or any house within the Park for putting of Hay into for feeding of the Deer or such like it is a forfeiture and the reason why the Office shall in such and the like case be forfeited because in what one offendeth in that he shall be punished Dispensatio mali prohibeti est de jure Domino regi concessa propter impossibilitatem providendi de omnibus particularibus dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata Coke l. 11. 88. a. The dispensation of a prohibited evill is by right granted or allowed to the King because of an impossibility for providing for all particular things and a dispensation is a provident relaxation of an evill prohibited recompensed with profit and utility As where an Act of Parliament which generally prohibiteth a thing upon penalty which is popular or where it is onely given to the Queen may be inconvenient to divers particular persons in respect of the person place or time c. therfore in such causes the Law hath given power to the Queen to dispense with particular persons But when the wisdome of Parliament hath made an Act to restrain pro bono publico the Importation of any forrein Manufactures to the intent that the Subjects may apply themselves to the making of the said Manufactures c. and by it maintain themselves and families Now for private gaine to grant the importation of them to one or divers against the said Act is a Monopoly and against the Common Law and against the end and scope of the Act it self vide ibidem plura in the case of Monopolies Coke l. 5. f. 28. Cawdrys case By the Ecclesiasticall Lawes of this Realm a Priest cannot have two Benefices nor a Bastard be a Priest but the King by his Ecclesiasticall power and jurisdiction may dispense with both these because they are mala prohibita and not mala in se The King by a clause of non obstante may dispense with the Statute-law and that if the Statute saith that dispensation shall be meerly void 2 H. 7. Grants 73. Finch f. 82. Coke comm f. 120. a. A party or Minister disabled by reason of any corrupt Contract c. by the Act of 13 Eliz. which is an absolute and direct Law cannot be dispensed withall by any Grant c. with a non obstante as it may be when any thing is prohibited sub modoâ— as upon a penalty given to the King Coke l. 4. f. 35. b. in Bozums case when the King by the common Law cannot in any manner make a grant there a non obstante of the common Law will not make the grant good against the reason of the common Law as if the King granteth a protection in an assize or Quod impedit with a non obstante of any Law to the contrary that grant is void for by the common Law a protection doth not lye in any of these cases 39. H. 39. But when the King may lawfully make a grant but the common Law requireth that he may be so instructed that he be not deceived there a non obstante may supply it as when the King
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
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
but supposalls As in a Pormedon one claimeth by descent from I. S. or a Mortdancester as sonne and Heir of I. S. yet in another Formedon he may claime from I. D. and shall not be estopped No more shall a recitall make an Estopple for they are not materiall as 33. H. 6. 10. b. where A. reciting that he is seised in fee of the Manner of D. granteth a rent out of it to B. this shall not estoppe A. to say that he had nothing in that Mannor Finch nomotec f. 32. Neither shall counts and declarations abate so long as the matter of Action is fully shewed in the Declaration and the writ as by the Statute of 36. E. 3. c. 15. it is provided And therfore in Demurrers it is alledged that the matter contained in the count is insufficient in Law and so of a plea and accordingly in the raigne of Queen Eliz. provision is made that after demurrers the Judges shall give Judgement according to the right of the cause and matter in Law without regarding any imperfection defect or want of forme in any Writ Retorne Plaint Declaration or other pleadings or course of proceedings whatsoever which Sir Edward Coke stiles an excellent and profitable Law Coke Com. 304. b. All which are more fully contained in the late Act of 11. Mar. 1649. by which it is enacted that no judgement shall at any time or times be arrested or stayed in any Court of Record for want of any matter of forme or defect whatsoever except only for matter of substance which shall be found or shewed pulickly to the Jude or Judges sitting in the said Courts of Record to be in the declaration Plea replication or other proceedings after apparance And besides in common recoveries no formall errors shall be allowed to reverse them unlesse they be substantiall and materiall as by the statute of 23. Eliz c. 4. it is provided that for the avoiding of the danger of assurance of Land and for the advancement of common recoveryes that not any common recovery shall be avoided for any want of forme in wordes and not in matter of substance so much doth the Law respect matter of substance before matter of form circumstance Coke c. f. 40.2 From the predicaments of action and passion Idem non potest esse agens paciens 14 H. 8. 31. b. nihil agit in seipsum Arist 1. de gener no man can do an act to himselfe No man can sue himself and therfore when a man having right to Land hath the freehold cast upon him by a latter title he shal be said to be in of his ancient title because there is no body against whom he may sue but himselfe and he cannot sue himself Lit. A man cannot present himselfe to a benefice or make himselfe an Officer 13. H. 8. 32. No man can summon himsele 8 H. 6.29 And therefore if a Sheriff suffer a common recovery it is error because he cannot summon himselfe Dier 188. But when two Sheriffs are the one may summon the other with speciall direction in the Writ that the other shall summon him 14 and 15. Eliz. If a Sheriff be Conusee of a Statute he cannot execute a liberate himselfe 9 E. 4. 33. Plaintiffe and Defendant Exception and Actor and Reus are relative opposites and cannot be properly in one and the selfe same action except in some speciall cases as in a writ of detinue where garnishment is required there the Defendant is to become actor against the garnishee 3 H. 6. 18. so in a quare imâ—edit where the Defendant maketh title to have a Writ to the Bishop the defendant is become actor 20 H. 6. 29. In a Replevin upon an avowry made the avowant is become actor 3 H. 6. 19. a. 23. H. 6. 45. a. 12. E. 4. 10. a. So in a Quod deforceat the demandant or Plaintiff shall defend his estate against such recovery as shall be pleaded against him and become defendant and may vouch ac si tenens esset in priori brevi by the statute of W. 1. A Sheriff who is demandant may execute all processe till it come to the Venire facias otherwise if he be Tenant 20. E. 4. 7. A Sheriff is Plaintiffe for he may take pledges himselfe and execute a Replevin against himselfe 5. H. 7. 2. The Sheriff is in seisin of a Baly-wick of a liberty he shall command himselfe as Bayliff of that liberty to execute that processe 8 E. 3. 21. F. B. N. f. 4. E. There is a Writ of prohibition in the Register directed to the Sheriff to inhibit himselfe that he hold not plea in the county upon a sorreine Plea pleaded or the Mise joyned to be tried by grand assise Actori incumbit onus probandi stabilitur praesumptio donec probetur in contrarium the burden of proving lieth on the Plaintiff and the presumption is confirmed untill it be proved to the contrary Cok. l. 4. f. 70. There is a bargainor and a bargaince if this bargainor contend to avoid the bargaine by reason of the non enrolement within six months he must make manifest proofe thereof or else it will be presumed that it was inroled within the six months omnia praesumantur legitime facta donec probentur in contrarium Coke com f. 233. b. As whereas the feoffee giveth or granteth to the feoffor the deed pol such grant is good and the property of the deed shall appertaine to the Feoffor and when the feoffor hath the deed in his hands and pleadeth it in Court it shall be rather intended that the feoffor commeth unto it by lawfull meanes then by a tortious meane For all things are presumed to be lawfully done untill they may be proved to the contrary A. and B. Tenents in common of a Mannor A. purchaseth a frank tenement mixt with the demesne Lands which were not certainly knowne B. brings a writ de partitione facienda of the Mannor onely and judgement given that partitio fieret and a Writ to the Sheriff accordingly It is held by the Justices that A. must shew the bounds of the franktenement purchased for the Jury shall be discharged if in conscience they make partition de tanto quanto praesumitur dignoscitur per praesumptiones verisimilia of so much as shall be presumed and knowne by presumptions and likelihoods Dier f. 266. Pendente lite nihil innovetur Let nothing be innovated hanging the suit Coke com 344. b. if hanging the quare impedit against the Ordinary for refusing his Clark and before the Church was full the Plaintiff brought a quare impedit against the Bishop and hanging the suit the Bishop admitted and instituted a Clark at the presentation of another if judgement be given for the patron against the Bishop the patron shall have a writ to the Bishop and remove the incumbent that came in pendente lite by usurpation for hanging the sute nothing is to be innovated Qui semel actionem
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
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
that be dissolved the dower ceaseth where the husband and wife are divorced a vinculo matrimonij as causa precontractus causa metus causa impotentiae seu frigiditatis causa affinitatis causa consanguinitatis and William Chadweth was divorced for that he did carnally know the Daughter before the marriage of the mother All these are causes of divorce preceding the marriage and dissolve the dower Coke Com. f. 32. a. 235. a. Yet it is said that if the assignement of dower ad ostium ecclesiae be specified to wit that notwithstanding any divorce shall happen yet that shee shall hold it for life that this is good ibidem but divorce a mensa thoro doth not dissolve the matrimony nor bar the feme of her dower Coke l. 7. f. 43. b. As it was adjudged T. 2. Jac. 18. 5. C. 23. S so well and Wilby dower Coke com f. 33. b. Yet if the wife elope from her husband and leave him and goeth away with the adulterer shee shall lose her dower untill her husband willingly without coertion ecclesiasticall be reconciled unto her and permit her to cohabite with him according to the vulgar verses Sponte virum mulier fugiens adultera facta Dote sua careat nisi sponsi sponte retracta And this is true although shee remaineth not continually with the adulterer or if shee tarrieth with him against her will or he turne her away or co-habiteth with her husband by censure of the Church in all these cases shee loseth her Dower Coke ibidem 32. b. yet though shee be barred of her dower shee may have an appeale and the reason is because the Statute of W. 2. c. 34. barreth her of her dower but not of her appeale Coke com f. 33. b. And for the abovesaid reasons dower is one of the three things are principally favoured in our Law and the Law by that name doth give her many freedomes for the very name Dos doth give her a freedome as according to the custome of the Kingdome mulieres viduae debem esse quietae de tallagijs Regist 142. 143. and tenant in dower shall not be distrained for the debt due to the King by the husband in his life time for the Lands which shee holdeth in dower of which Ockam yeeldeth this reason Doti ejus parcatur quia praemium pudoris est let her dower be spared because it is a reward of her chastity Coke com f. 31. a. By the Statutes of 1. E. 5. c. 2. 5. E. 6. c. 31. A wife shall not lose any title of dower which to her was accrued by the attainder of her husband by misprision of treason or any manner of murder or felony whatsoever but if the husband be attainted of high treason or petit treason shee shall be barred of her dower at this day so long as the attainder standeth in force which is more favourable to the woman then the common Law was Coke com f. 392. b. vide ibidem plura And a woman shall be endowed of a seisin in Law as where Lands or Tenements descend to the husband before entry he hath but a seisin in Law and yet the wife shall be endowed albeit it be not reduced to an actuall possession for it lyeth not in the power of the wife to bring it to an actuall possession as the husband may doe of his wifes Land when he is to be tenant by courtesy Coke com f. 31. a. If a man taketh a wife of the age of seven yeares and alieneth his Land and after she attaineth to the age of nine yeares the husband dyeth the wife shall be endowed for albeit shee was not absolutely dowable at the time of her marriage yet was she conditionably dowable to wit if she attained to the age of nine yeares before the death of her husband ibidem f. 33. a. An husband seised in fee of Lands giveth it in exchange and taketh others in exchange so as he was seised of both the wife shall not be endowed of both but she may take her election to be endowed of which she will Coke ibidem 31. If the wife be of the age of nine yeares and her husband dyeth she shall be endowed though her husband be but four years old ibidem or of what age soever the husband be quia non obstabit mulieri petenti dotem minor aetus viri because the inferior and lesser age of the man shall hinder the woman from demanding her dower and that albeit consensus non concubitus facit matrimonium and that a woman cannot consent before twelve nor a man before fourteen yet this inchoate and imperfect marriage from the which either of the parties at the age of consent may disagree after the death of the husband shall give dower to the wife and is accounted in Law legitimum matrimonium quo ad dotem a lawfull marriage in respect of her dower Coke com f. 33. a. If the husband alien his land and then the wife is attainted of felony now is she disabled but if she be pardoned before the death of her husband shee shall be indowed ibidem Dos de dote peti non debet Coke com f. 32. Dower ought not to be demanded of Dower as if there be Grandfather Father and Son and the Grandfather is of three acres of Land in fee and taketh wife and dyeth this Land descendeth to the Father who dyeth the wife of the Grandfather is endowed of one acre and dyeth the wife of the Father shall onely be endowed of two acres for dower must not be demanded of dower but otherwise it had been if the father had come to the Land by Feoffment from the Grandfather or by guift in taile the wife of the Father after the decease of the Grandfathers wife should have been endowed of that part assigned to the Grandmother for that the seisin that descended after the decease of the Grandfather is avoided by the indowment of the Grandmother whose title was consummated by the death of the Grandfather Non debent mulieribus assignari castra in dotem quae fuerunt virorum suorum quae de guerra existant Coke com f. 31. a. Castles ought not to be assigned to women for their dower which appertained to their husbands and which are for war and therefore of a Castle which is maintained for the necessary defence of the Realme a woman shall not be indowed because it ought not to be divided and the publick shall be preferred before the private but of a Castle which is onely for the use and private habitation of the owner a woman shall be endowed and that in the 7 th of Magna charta nisi domas illa sit castrum is taken for a Castle of publick defence De nullo quod est sua natura in divisibile divisionem non patitur nullam partem habebit uxor pro dote sua sed satisfaciat ei ad valentiam Bracton Coke com f. 32. Albeit of many Inheritances which be
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
in Law he is no issue for he that is born of unlawful copulation is not to be accounted among children so it is if a man make a lease for life to B. the remainder to the eldest issue male of B. to be begotten of Jane S. whether the same be legitimate or not legitimate B. hath issue a bastard on the body of Jane S. this Son or issue shall not take the remainder because he is no issue ibidem and for the same cause if after the birth of the issue B. had married I. S. so as he became bastard eigne and had a possibility to inherit yet he shall not take the Remainder Ibidem And though a bastard having gotten a name by reputation may purchase by his reputed and known name to him and his heires yet he can have no heir but of his body and if he hath no issue the Land shall escheate if he purchase any Finch Nomot f. 130. The Pope Emperor and Prince himselfe cannot legitimate a bastard to enjoy any benefit of our Law the Parliament hath onely that power Com. of England f. 242. And it is related by Bodin l. 2. de repub That one Ieane Navarre calling himselfe Count Palatine by virtue of the power he said he had of the Pope made many bastards of France legitimate for which he was condemned by arrest of Parliament as laesae majestatis reus wherein their Law seemeth to accord with ours for it is onely in the power of the King and Parliament to make a bastard legitimate but the King may dispense with a bastard to be a Preist Davis Reports f. 37. a. The civill Law depriveth the adulterous issue of all benefit the Ecclesiasticall Law alloweth things needfull for sustentation but by the Laws of this Realme one may give or devise all to a bastard Swinborne testaments f. 230. And by our Law if a grant be made to a bastard by the name of him who is supposed to engender him it is good if he be known by that name so if a remainder be limited to Richard the Son of Richard Marwood it is good although he be a bastard so in case of purchase a bastard eigne in respect of the subsequent marriage is capable of his reputed Fathers guifts for though by the civill Law his right of Primogeniture is remitted by the subsequent marriage according to the rule subsequens matrimonium tollit peccatum praecedens yet by the common Law he is in it rejected and hee made uncapable of any inheritance by descent though in case of purchase it may be sufficient as 39 E. 3. Richard Thompson having issue by one Ioane before marriage one Agnes and after inter-married with Ioane and made a Feoffment in fee and re-taked the estate unto himselfe for life the remainder to Agnes the Daughter of the said Richard and Ioane and agreed that it was a good remainder without any averrement that shee was known to be their Daughter but it was there objected that a bastard is not their Daughter in Law and therfore the remainder void but Finch den gave the rule and said it is found that the Daughter was borne before the espousalls so that by their espousalls after shee is their Daughter so as though by the common Law shee was not their Daughter yet in so much that she hath colour by the Ecclesiasticall Law which saith that subsequens matrimonium tollit peccatum praecedena it is sufficient in case of conveyance to make the remainder good Coke l. 6. f. 65. a. vide ibidem plura Dominum a possessione cepissi dicitur Reg. I. C. paulus Dominion is said to have his begining from possession and that jure naturali for we gaine Dominion of some things by the Law of nature that is as Cicero hath it veteri occupatione ut qui quondam in vacua venerunt by long occupation and possession of those things into which being void we have entred which no man can take from us but by injury and therefore doe the Civilians derive possession a pedum possessione from the fixing our feete upon any particular thing and by long possession is turned into right longa enim possessio est pacis jus Bracton f. 50. Long possession is the right of peace And therefore in the case of a Charter of Feoffment if all the witnesses to the Deed be dead as no man can keepe his witnesses alive and time weareth all things then violent presumption which standeth for a truth is continuall and quiet possession for ex d uturnitate temporis omnia praesumantur solenmiter esse acta Glanvill for by long continuance of time all things are presumed to be solemnely acted Coke com f. 6. b. And therupon Bracton giveth the rule Longum tempus longus usus quiexcedit memoriam hominum sufficit pro jure Long possession long occupation which doth exceed the memory of man sufficeth for a right l. 4. f. 230. But what measure of time maketh such a right by which a Fee-simple may be attainted diverse have differed in opinions some judging the same to be according to the computation of years from the time of King Henry the first to the Statute of Merton which amounteth to seventy six yeares and others have limited it to an hundred years which according to the civil law is longissimum vitae hominum tempus the longest time of the life of men but the true measure of it according to Mr. Littleton is where things have been used so long as the memory of man cannot remember the contrary that is either by the knowledge and memory of proofe or by record or sufficient matter in writing so as if there be any sufficient proofe of record or writing to the contrary albeit it exceedeth the memory or knowledge of any man living yet is it within the memory of man Coke com 115. a. And as by the course of nature time is the measure and consumer of all things Nullaque res majus tempore rebor habet There nothing is which hath more strength then time So doth Art and Law imitate nature which giveth unto it such power and authority as to change to raise to alter and to establish titles wherein the Civill and the common Law do square for by the civill Law there is required a just title bona fides and continuall possession to make a title of prescription but the common Law onely requireth continuall possession and that naturalis possessio ad praescriptionem sufficit naturall possession sufficeth for a prescription As if a man prescribe to have a rent and likewise to distraine for the same it cannot be avoided by pleading that the rent hath allwayes been paid by coertion or that it began by wrong Coke com 114. a. So Jeptha pleaded prescription against the Ammonites these Lands saith he have we possessed these 700. yeares And the reason why this long usage and prescription was brought in to be of the force and strength to make a right
and a Law was that thereby there might be certainty of titles and a peaceable possession without contradiction and as a Civilian saith ut sit finis litium that there might be an end of suits and therefore were the Statutes of limitation made within which the demandant that bringeth the action must prove himselfe or some of his Ancestors to be seised and in antient time the limitation in a Writ of right was from the time of H. 1. after that by the Statute of Merton the limitation was from the time of Henry the second and by the Statute of Westminster the first the limitation was from the time of Richard the first but because that limitation of the writ of right was for so long time passed the limitation of a writ of right was changed by the Statute of 32. H. 8. and reduced to threescore years next before the Teste of the Writ and so of other actions Coke com f. 115. a. vide ibidem plura And afterwards another Act was made 21. Jacob. that for the avoiding of suits all writs of Formedon in Descender Formedon in Remainder and Formedon in Reverter for any Mannors c. shall be sued and taken within twenty years and that after the twenty years expired none such or any of their heires shall have any such writ and that no person that hath right or title of entry into any Mannors c. shall thereunto enter but within twenty years vide ibidem cap. 6. plura But it is to be observed that time of limitation is twofold first in writs that is by diverse acts of Parliament the second is to make a title of inheritance and that is as hath been said to pleade a prescription de tempore cujus contrarium memoria hominum non existit Coke com f. 14. 15. which is by the common Law And this also accordeth with the rule of Bracton Longa possessio sicut jus parit jus possidendi tollit actionem a vero domino l. 2. f. 52. Long possession as right begetteth a right and taketh away an action from the true Lord and owner And so in antient times if the disseisor had been long in possession the Disseisee could not have entred upon him neither could the Disseisee have entred upon the Feoffee of the Disseisor if he had continued a yeare and a day in quiet possession and though the Law be now changed yet at this day the Disseisor dying seised being an act in Law barreth the disseisee of his entrance upon the heire and for that many advantages follow the possession and tenant the law taketh away the entry of him that would not enter upon the Ancestor who is presumed to know his title and driveth him to his Action against the heire that may be ignorant thereof Coke com f. 237. b. And for the above said reason the law yieldeth diverse utilities and advantages to the possessor for it is better to be a possessor then to complaine of others who are possessors because it imposeth the burden of proving on the Plaintiff so as if he can prove nothing he which possesseth shall be acquitted neither can possession be avoided but by possession Ployd 137 b. As if I make a lease for years of the lands of my wife and die the lease is not void before entry made by the wife for possession must be avoided by possession and such possession must be gained by entry But if my father die and his land descend to me a Lease for yeares made before my entry is good because I have possession in law and none hath possession in deed but if a stranger abate a lease made by me after is void for the stranger hath possession indeed before my entry upon him Ployd ibid. If an Executor bring an Action of trespasse for goods taken out of his possession it is not needfull to shew the Testament but if hee not ever was possessed of them but doth demand the thing then hee ought to have shewn the testament Ployd f. 46. a. And regularly it holdeth true that when the naked right of Land is released to one that hath jus possessionis and the other by a meane title recovereth the land from him the right in possession shall draw the naked right with it and shall not leave a right in him to whom the release is made as if the heire of the disseisor being in by descent is disseised by A. and the disseisee release to A. now hath A. the meere right to the land but if the heire of the disseisor enter into the Land and regaineth possession that shall draw with it the meere right to the land and shall not regaine the possession onely and leave the meere right in A. but the recontinuance of the possession the meere right is therewith vested in the heire of the disseisor Coke com 266. a. If a woman possessed of a terme for yeares take an husband and the wife dieth though during the life of the wife the terme was not devested out of the wife yet by her death it is vested in the husband and it is given to him by Act in law because it is a thing in possession and not in Action Pl f. 192. b. In pari causa possessor potior haberi debet Reg. I. C. In aequali jure â—elior est conditio possidentis Coke l. 4. f. 90. a As the Lord who is allowed but three Chaplaines retaineth six by his letters testimoniall at one and the same time and all the six are prefeâ—red to six severall plurallities the three which are first promoted are warranted by the statutes and yet the retainer was not according to the statute for in aequali jure melior est conditio possidentis In equall right better is the condition of him who is in possession ibidem If a man purchaseth severall lands at one time which are holden of several Lords by Knights service and dieth the Lord who first seiseth the ward shall have him because they are in aequali jure and there is no priority betweene them which if there were the elder Lord shall have him Perk. f. 6. If ten Mannors be conveyed to two severall persons by one deed which of them happeneth to get the Deed first may detaine it Two Attorneys are retained conjunctim divisim joyntly and severally the plea of him that first pleadeth shall stand because they are in aequali jure to plead If there be two joynt-tenants and one of them taketh all the profits of the land or all the rent the other hath no remedy Coke l. 2. f. 68. a. So the release of all Actions personall by one barreth the other but otherwise it is if the personalty be mixed with the realty and if there be two joynt-tenants Lords and the tenant holdeth by Knights service and the tenant dieth his heire within age and one Lord seiseth the Ward and the other distraineth for the services he that first seiseth or distraineth shall bind the other And
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
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
it shall be apportioned vide ibidem plura If a man be bound to appeare at a day before Justices at which day the obligor casteth him into Prison so as he cannot come the bond is saved otherwise if he were in Prison for Felony or any other misdemeanor for that is his own act and fault 32. H. 6. Bar 60. Or if he cast himselfe into Prison Nâ—y Max. f. 13. An infants appeale shall not stay for his full age for he shall not take advantage of his own wrong 27. H. 8. 11. One in Execution escapeth and the Goaler taketh him againe the party if he will may have him to remaine in Prison in execution for him still for the escape is his own wrong 13. H. 7. 1. So Coke l. 3. in Britons case If one in Prison upon execution escape if he be taken he shall not bring an Audita querela to discharge himselfe of his imprisonment for he shall not take advantage of his own wrong He that is party to a wrong shall not take advantage by the same wrong Perk. 41. b. As if Lessor and Lessee for yeares joyne in the cutting downe of twenty Oakes the Lessor shall not punish him in a Writ of Wast and take advantage of his own wrong The heire which is party to the death of his Father shall not have an appeale of it And if issue in taile disseise the Discontinuee of his Father and then enfeoff his Father and his Father then dyeth seised and the issue in tail enter he shall not be remitted If Lessee for life of one Acre of Land leaseth the same Acre to his Lessor for yeares the remainder to a stranger in fee and maketh livery and seisin to the Lessor accordingly it is no forfeiture Perkins ib. If tenant for terme of life enfeoff the feme of the Lessor of the same Land leased and maketh a Letter of Attorny to the Lessor to make livery and seisin and he doth so accordingly it is no forfeiture Perk. ibidem f. 42. a. If an house fall down by tempest the Lessee for life or yeares hath a speciall interest to take Timber to reedify the same if he will for his habitation but if the Lessee pull down the house the lessor may take the Timber as parcell of his inheritance and besides have an action of Wast and recover treble damages Coke l. 4 f. 63. a. in Harlackendems case A deviseth lands to B. untill eight hundred pounds be levied for the marriage of his daughters his Son and Heire entreth and concealeth the will receiveth the profits before the will is discovered then the devisee entreth receiveth the profits until they amount to six hundred and forty pounds the heir is to supply the rent for the heire shall not take advantage of his own wrong Coke l. 4. Dormit Lex aliquando jus moritur nunquam Coke com 279. b. For as Littleton there hath it it is commonly said that a right cannot dye For of such an high estimation is right in the eye of the Law as that the Law preserveth it from death and destruction trodden it may be but not trodden out for where it hath been said that a release of right doth in some cases enure by way of extinguishment it is so to be understood as here Littleton saith in respect of him that maketh the release or else in respect by construction of Law it enureth not alone to him to whom it is made but to others also who be strangers to the release which as hath been sayd is a quality of an inheritance extinguished As if there be Lord and Tenant and the Tenant maketh a Lease for life the remainder in fee If the Lord release to the Tenant for life the rent is wholly extinguished and he in the remainder shall take benefit thereof and even so when the heire of a disseisor is disseised and the disseisor maketh a release for life the remainder in fee if the first disseisee release to the Tenant for life this shall enure by way of extinguishment because it shall enure to him in the remainder who is a stranger to the release and yet in truth the right is nor extinguished but followeth the possession to wit the tenant for life hath it during his time and he in the remainder to him and his heirs and the right of the Inheritance is in him in the remainder for a right to Land cannot dye or be extinct in deed and therefore if after the death of tenant for life the heire of the disseisor bring a Writ of right against him in the remainder and he joyne the Mise upon the meere right it shall be found for him because in Judgement of Law he hath by the said release the right of the Disseisee for it is commonly and truly said that right never dyeth but is transferred and conveyed by Feoffments Grants Confirmations Prescriptions or Fines c. releases from one man to another so as the Species of it continually remaineth Res inter alios acta alteri nocere non debet factum unius alteri nocere non debet Coke com f. 152. b Things acted among others ought not to hurt either and one mans deed ought not to hurt another and Coke l 9 f. 59. It is the rule of Law and reason prohibetur ne quis faciat in suo quod nocere possit in alieno sic utre tuo ut alienum non laedas it is forbidden least any one should doe that in his own that may hurt another and so use your own that you injure not another If a man hath a Water-course running in a channell of a River up to his house for his necessary ules and a Glover levy a Lime pit for Calve-skins and Sheep-skins so neer his Water-course that the corruption of the Lime pit hath corrupted it by which his tenants goe out of his house for it an action of the case lyeth as is adjudged in 13. H. 6. 26. b. So he who hath severall Piscaries in his own Water shall have an action of the case against him who erecteth a Dye-house by which he maketh slime filth and other dirty things to run out of the said house into the said Piscaries by which he hath totally lost the profit of the said Piscaries vide in the Book of Entries Nusance f 406. b. vide the same in Aldreds case for erecting of a Swine-house plura alia ibidem And so also in Penruddocks case Coke l. 5. and in Batius case l. 11. 54. Where you shall find diverse notable cases to the same purpose Lessee for yeares shall so take his hedge-boote that he doth not destroy common of Estovers which another man hath there 46. E. 3. 17. He which hath common in Land not inclosed shall keep his Cattle out of a stranges Land 20 E. 4. 11. If Beasts be driven by the high way he ought at his perill to keep them out of the Lands adjacent to the high way
of the Law when one thing is provided for in the words that every other thing in the like kind shall be provided for in the same words And so when the words of a Statute enact one thing they enact all other things which are in the semblable degree As whereas the Statute of 9 E. 3. c 31. ordaineth that in an Action of Debt against Executors he that commeth in by distresse shall answer the said Act shall be extended by equity to Administrators for whosoever of them commeth in first by distress shall answer by the equity of the said Act because they are in the like degree So the Statute of 4 H. 4. c. 8. giveth an especiall Assise to him who is disseised and ousted of his land by force against the Disseisor and it is enacted that he shall recover against him double damages And so it is in an Assise of Nusance to turn the course of the water from the Mills of the Plaintiff with force it was adjudged that he should recover double damages and yet he was not put out of his land neither was there a disseisin but the Nusance was to the damage of his Frank-tenement and so by the equity of the said act the Plaintiff recovered double damages because the Nusance was in the like kind So the Statute of Gleucester giveth an Action of Wast c. against him who holdeth for life or for yeares and by the equity of it a man shall have an action of Wast against him who holdeth for a yeare or for twenty weeks and yet it is out of the words of the act because it is in the like degree and the cases which are of such degree in our Law are infinite Ployd f. 165. a. And there is another sort of equity which abridgeth and taketh from the letter and is a correction of the generall words Ethie 30. l. 10. and is defined by Aristotle to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a correction of a Law wherein it is any way wanting because of the generality of it which also in our Law is of much use As when an act of Parliament is made that whosoever shall do such an act shall be a Felon and be put to death and yet a man non sarae memoriae or an Infant of tender age who hath no discretion doth it they shall not be Felons c. or if a Statute be made that all persons who shall receive or give meat or drink or other aid to one who shall do a felonious act shall be accessory to the Offence and be put to death yet if one doth such an act and commeth to his wife who knowing it receiveth him and giveth meat and drink unto him she shall not be accessory nor Felon for in the generality of the said words of the Law he of non sanae memoriae nor Infant nor a Wife shall not be included and so equity correcteth the generality of the Law in those cases and the words generall are by equity abridged so the Statute of Champerty W. 2. l. 49. Arti. super Chart. contra probatos men generally do receive Lands and Tenements while the thing is in plea yet M. 16. R. 2. accord it was said by the whole Court in a Writ of Champerty that if I bargaine any lands before any Writ brought and after the Writ purchased I deliver Seisin That the Writ of Champerty doth not lye because it shall not be intended that the Bargain was made for such cause and that by equity for when he bargained and promised the land upon just consideration before any action brought against him it was his act to perform it notwithstanding the action And Costle promoter of the King brought an action of Extortion H. 21. H. 7. 16. against an under-Sheriff grounded upon the Statute of 23 H. 6. c. 10. which ordaineth that neither the Sheriff Goaler or Ministers nor any of them by colour of their Office shall take any thing profit c. of any person for fine fee or ease of prison but for the Sheriff 20 d. the Bayliff 4 d. and the Goaler 4 d. supposing that he had taken 20 d. above the same limited upon the Statute and upon demurrer it appeared upon evidence to the Court that all under Sherifs of the same county have used from the time whereof memory doth not run to have of every prisoner in their ward for suspition of Felony when they are acquitted twenty pence called the Bar fee and the twenty pence supposed to be taken were taken from the person named in the count being acquitted for a Bar-fee and the opinion of the whole Court was that it was out of the raise of the Statute though it was within the words of the Statute for that the sum of a Bar-fee was assigned to the Sheriff at the beginning by the order and discretion of the Court in respect of his labour and charge he had with the prisoners and for his attendance and for his ministry when the prisoners are brought to their delivery and so that payment was with reason and good conscience which the intent of the makers of the act was not to take away and so equity did put an exception to the generality of that text of the Statute Law So the Statute of W. 2. c. 4. ordaineth that where a man rat or dog escapeth alive out of a Ship neither the Ship nor any thing that is within it shall be adjudged wrack but all the things shall be saved and kept by the view of the Sheriff c. in the hands of those of the Towne where the things were found so that if any one can prove that they are his within a yeare and a day they shall be restored to him and whosoever doth otherwise shall be awarded to prison and remaine at the will of the King and render damages yet if the goods within the Ship be such things as will not endure for a yeare and a day the Sheriff may sell them and deliver the mony taken for them to the Towne to answer for it and that by equity though it be against the words of the said Act. So the Act of 2. E. 6. c. 14. Which giveth to the King all Lands and Tenements by any assurance conveyance given assigned or limited to find any preacher to have continuance for ever c. if the words of that act should be taken generally they give to the King al the houses and glebe Lands of all Parsons and Vicars but equity putteth in that text the exception of Parsonages and Vicarages because it was not the intention of the makers of that Act Ployd f. 466. vide ibidem plura There is another excellent use of equity which consisteth in guiding the grounds and maxims of of things which seem to crosse and thwart one another for as Sir John Doderidge English Lawyer f. 209. it is scarcely possible to make any second rule of Law but that it shall faile in some particular
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
is an Accessary Ployd 175. But if it be to kill I. S. and he killeth I. D. mistaking him for I.S. then he is no accessary because it is different in substance And if I bid I. S. to steal such things out of an house without breaking of the house and yet he breaketh the house I am accessary to the Burglary But if a man bid one rob I. S. as he goeth to Sturbridge Faire and he rob him in his house he is not accessary for the variance is of substance Ployd ib. 175. Quando aliquid mandatur mandatur omne per quod pervenitur ad illud Coke l. 5. f. 115. b. when any thing is commanded every thing is commanded whereby we may come to it Whereas a Writ of Estrepment will lye in an action of Wast because he cannot receive more damages then are contained in the Count and can assign no Wast after the Writ purchased if a Writ of Estrepment commeth to the Sheriff by virtue of it he may resist those which will make waste and if otherwise he cannot yet it is lawfull for him to imprison them and to make Warrants to others to do the same and if it be necessary he may take a Posse commitatus for his aid though the words of the Writ onely be that he shall personally go to the Messuage and altogether take order that no wast or estrepment of the said Messuage be according to the foâ—m of the statute whilest the said plea hangeth indiscussed because when any thing is commanded every thing also is commanded by which we may come to it Quando aliquid prohibetur prohibetur id per quod pervenitur ad illud Col. 9. f. 57. a. then any thing is forbidden that also is forbidden by which we come to it As confederation and combination among men uniting themselves together either by obligation or by promise to execute any unlawfull act is punishable by Law before the unlawfull act be executed and the Law punisheth the combination and the confederacy to the end to prevent the unlawfull act and therefore the usuall commission of Oyer and Terminer giveth power to the Commissioners to enquire of all combinations confederacies and false allegiancies and false allegiance is a false binding of anyâ— one to another by Obligation or promise to execute an illoyall act Boni judicis est lites dirimeâ—e expedit reipub ut sit finis litium propter communem omnium utilitatem Coke l. 5. f. 73. b. It is the part of a good Judge to cut off strifes and it is profitable to a Common-weal that there be an end of Suits for the common good of all in Williams case When a Chappell is not private to the Lord and his Family but is publick and common to all the Tenants of the same Mannor who may be many and of great number there no action upon the case lieth against the Vicar who ought and is bound by prescription by himself or some other to celebrate Divine Service in his Chappell c. for then every one of his Tenants may also have an action upon the case as well as the Lord himself and so infinite actions for one default but it is the part of a good Judge to break and put of suits and strifes c. and it is profitable to the Common-wealth that there be an end of suits for otherwise great oppression may be under the colour and pretext of Law For as Coke l. 6 f. 9. a. If there should be no end of suits then a rich and malicious man will by actions and suits infinitely vex him who hath right and in the end because he cannot attain to any end compell him to redeem his charge and vexation and to leave and relinquish his right vide ibidem plura And therefore Coke l. 9. f. 73. b. Accords with satisfaction are much favoured in Law for the interest of the Common wealth that there may be an end of suits and Coke com f. 306 b. every plea ought to be tryable for without tryall the case will never come to an end which would be discommodious to the republick And therefore doth the Law shun circuity of actions and such actions as are needless and may be saved and as Coke l. 5 f. 31. Circuitus est evitandus As if he that hath ten pounds issuing out of certain land disseiseth the Tenant of the land In an assise brought by the Disseisee the Disseisor shall cut off the rent in the damages insomuch as if the mean profits of the land were at the value of thirteen pounds the Disseisee shall recover but three l. 3 H. 6. 18. and the Disseisor shall cut of all the damages he hath expended in repairing the houses 14 E. 3. 92. and if Rent-service happen during the Disseisin it shall be cut off 9 E. 3. 8. and the reason of the cutting off in such case is because that otherwise the arrearages of the rent-service charge or seck shall be revived and therefore to avoid cercuity of action the arrearages during the Disseisin shall be cut off in damages Coke com f. 265. a. If there be Father and Son and the Father be disseised and the Son living the Father releaseth to the Disseisor all his right which he hath or may have in the same Tenements without clause of Warranty and then the Father dieth the Son may lawfully enter upon the possession of the Disseisor because he had no right in the land in his Fathers life but the right descended to him after the release made yet if there had been a Warranty annexed to the release then the Son should be barred for the Warranty may rebutt and bar him and his Heires of a future right which was not in him at that time and the reason wherefore a Warranty shall bar a future right is for avoiding of circuit of action as he that made the Warranty should recover the land against the Ter-tenant and he by force of the Warranty to have as much in value against the same person ibidem Upon the grant of a Ward with Warranty the Defendant in a Writ of right of Ward may rebutt the Plaintiff by that Warranty and shall not be driven to bring an action of Covenant for avoiding circuit of action Finch f. 55. In an action of Waste upon a lease of yeares by Deed and in the same Deed the Lessor granteth to the Lessee that he shall not be impeached of waste the Lessee may plead this in an action of waste and shall not be driven to bring an action of Covenant for avoiding circuit of action When a Father enfeoffeth his Son and Heir with Warranty and dieth now the Son in a Praecipe brought against him may vouch the Feoffor of his Father for the Law will not suffer him to vouch himself and when he cometh in as Voucher then to deigne the Warranty for the circuity of Voucher Malificia non debent manere impunita impunitas continuum
when we apprehend the reason of the Law that is when we bring the reason of the Law to our own reason that we may perfectly understand in as our own ibidem and therefore we use to say in argument that reason will that such a thing be done or that reason will not that such a thing be done Noy max. f. 1. for as Ployd f 34. our Law hath reasonable constructions in all things As if I be bound to perform the Covenants in such an Indenture it shall be intended all the Covenants or that my Feoffees shall make an Estate it shall be intended all my Feoffees Lex est summa ratio Coke com 97. b. the Law is the chiefest reason that is an artificiall and legall reason warranted by authority in Law ibid. 62. a. and therefore Littleton saith Semper quaere de dubiis quia per rationes pervenitur ad legitimam rationem Alwaies enquire of doubts for by reason you shall come to a lawfull reason for reason is radius divini luminis and by the reasoning and debating of grave learned men the darkness of ignorance is expelled and by the light of legall reason the right is discerned and thereupon judgment given according to Law which is the perfection of reason Coke com f. 232. b. Nay the Common Law it self is nothing but reason which is to be understood of an artificiall perfection of reason gotten by long study observation and experience and not of every mans naturall reasons for Nemo nascitur artifex No man is born an Artist This legall reason is summa ratio And therefore if all the reason that is dispersed into so many severall heads were united into one yet could he not make such a Law as the Law of England is because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men and by long experince grown to such a perfection as the old rule may be verified Neminen oportet esse sapientiorem legibus No man ought out of his own private person to be wiser then the Law which is the perfection of reason Co. com f. 97. b. And though the Jurisdiction of the Court of Parliament is so transcendent that it maketh enlargeth diminisheth repealeth and reviveth Lawes Statutes Acts and Ordinances concerning matters Ecclesiasticall Capitall Criminall Common Civill Martiall Maritine and the rest Coke comm f. 110. a. yet cannot a Parliament confirm any thing which is against Law and reason And therefore if a Town hath customes which are against Law and reason and their customes be confirmed by Parliament Danby chief Justice in such case saith M 5. E. 4. f. 40. 41. That such confirmation shall not extend to such customes For a thing used meerly against Law and reason is not custome notwithstanding the usage as the Law saith and therefore the Act of Parliament which confirmeth their customes is referred to that which is not for they are not customs and therefore shall be void Ployd f. 399. b. vide ibidem plura Quod est contra rationem est illicium Coke com f. 97. b. what is contrary to reason is unlawfull And therefore Tenant in Franck-marriage shall do fealty to the Lord before the 4th degree passed for it should be inconvenient and against reason that a man shall be Tenant of an an Estate of an Inheritance to another and yet the Lord shall receive no manner of service of him and therefore he shall do fealty for all service ibid. And all positive Lawes which are contrary to the Lawes of nature and the Law of reason lose their force and are no Lawes at all Such was that of the Aegyptians to turn weomen to Merchandizes and Common-wealth affaires and to keep men within doors And such was the Law of the Thracians who accounted stealing very commendable and idleness an honest thing Finch Nom. l. 75. Quod est inconveniens contra rationem non est permissum in lege Whatsoever is convenient and contrary to reason is not permitted in the Law Coke com 178. a. If a man be seised of lands in Fee-simple and hath issue two daughters and the eldest is married and the Father giveth parcell of the lands to the Baron with his Daughter in Franck-marriage and dieth seised of the remnant which are of the greater value by the year then those lands given in Frank-marriage In this case the Baron and the Feme shall have nothing for their pur-party of the said remnant unless they will put their lands given in Frank-marriage in hotch pot with their remnant of the land with the Sister And if they will not do so then the younger may hold and occupy the same remainder and take to her the profits only for if the other partner should have nothing of it is given in Frank marriage of this a thing would ensue an inconvenience and a thing against reason which the Law will not suffer and therefore if the Baron and Feme will not put their lands in Frank-marriage in hotch pot they shall have nothing of the remnant because it shall be intended by the Law that she is sufficiently advanced to which advancement she agreeth holdeth her self content Littleton ibidem Mutata legis ratione mutatar lex Coke l. 7. f. 7. The reason of the Law being changed the Law it self is changed As though by the Common Law a man cannot distrain for rent or service in the night 12 E. 3.17.11 H. 7.5 accord yet for damage-feasant a man may distrain in the night for the necessity of the case for otherwise peradventure he shall not distrain at all for before the day they may be taken or strayed out of the ground 10 E. 3. f 37. In the Statute of Winchester it is provided that in Cities or great Villages which are inclosed the gates ought to be shut from the setting of the Sun to the Sun rising and since that Statute if in such Village or City inclosed any murther or manslaughter be done in the day or in the night and the Offender escape such City or Village shall be amerced which Act changed the reason of the Law for at the common Law if a man was slain in the night and the Offender escape there it was not any default in the City and Village but now if they do not guard their Gates strongly according to the Statute by which the Offendor escapeth then it is a default and negligence in them 3 E. 3. tit Coronae 290. So if divers commit a robbery by the Statute of 13 E. 3. those of the hundred ought to apprehend all the Felons and though they apprehend any of them that is not sufficient to excuse them for the words of the Act are that they shall answer for the bodies of the Offenders but now by the Statute of 27 Eliz. c. 13. it is provided that none shall have an action upon the said statute if not that the party robbed so soon as he can
re-entry is good if the other party confesse the condition If twelve be sworn and one depart another of the pannell by consent may be sworn and with the eleven give verdict The Court in a Quare impedit by consent may give longer day then is limited by the Statute of Marlebridge The Statute of 2. E. 3. 20. E. 3. provide that neither for the great Seale or the petty Seale Justice shall be delayed yet when the matter concerneth the King onely if he command it it may be stayed F. N. B. 21. b. Tenure at this day may be created by consent of all notwithstanding the Statute of Quia emptores terrarum 27. H. 8. By speciall consent of parties re-entry may be made for default of payment of the rent without demande of it Dyer 78. vide by all which cases it appeareth that consent of parties altereth the forme and course of Law ibidem Coke l. 5. f. 40. Electio semel facta placitum testatum non patitur regressum 20. H. 6. 24. Coke com f. 146. a. An election once made and testified by pleading suffereth no returne As if a Rent-charge be granted to A. and B. and their heires and A distraineth the Beasts of the Grantor and he sueth a Replevin A. avoweth for himselfe and maketh conusance for B A. dyeth B. surviveth B. shall not have a Writ of Annuity for in that case the election and the avowry for the rent of A. barreth B. of any election to make it an Annuity ibidem Coke l. 4 f. 5. b. in Vernoms case If the Baron discontinue the Land of his wife and dyeth and the wife bringeth a Writ of dower against the discontinuee and recover the third part shee is by it estopped to bring a cui invita for by the Writ of Dower shee claimeth Title of Dowâ—r onely and therefore shall be estopped to claime any other right by a cui invita 10. E. 3. double Plea 8. 10. E. 3. Scire facias 13. F. N. B. 194 17 Ass Pl. 3. For when shee bringeth her Writ of Dower and hath judgement to have the third part of all by it shee affirmeth that shee hath but title of Dower and by consequence no estate and therefore shee shall be estopped to claime any part of it of which shee hath demanded by her Writ to be endowed and an acceptance of rent by her Deed indented concludeth the feme of her right 11. H 7. 10 vide ibidem plura in Christians case But here a diversity is to be observed that a man may have several remedies for a thing that is meerly personal or meerly reall As if a man may have an action of account or an action of debt at his pleasure he bringeth an action of account appeareth to it and after is non-suite yet he may have an action of debt afterwards because both actions charge the person the like case is of an assize of a writ of entry in the nature of assize and the like Coke com f. 146 a. Multa conceduntur per obliquum quae non concâ—duntur de directo Coke l. 6. f. 47. a. Many things are granted by the by which are not directly granted As when a Bar is pleaded in a reall or personall Action as a release c. in a forrain County there the Jurors which try it shall assesse damages according to the profits of the Land in another County so by that meanes enquire of things locall in another County for many things are granted by the by c. And when they try the matter of the Bar upon good and pregnant evidence they ought to finde all dependants upon it as damages c. vide ibidem plura Dispositio â—e interesse facturo lest inutilis Bacon f. 56. The grant of a future interest is vaine and void for the Law doth not allow of grants unlesse there be a foundation of an interest for the Law will not accept of Grants of Titles or of things in Action which are imperfect interests much lesse will it allow a man to grant or incumber that which is no interest at all but meerly future As a Writ of Annuity was granted by a prebend after collations admissions and institutions but before installation or induction which though it was confirmed by the ordinary who was the Patron also was adjudged void because he had but jus ad rem and a future interest but not in re for he shall not be said a prebendary to all intents nor at the Common Law without the reall possession which is by induction Dyer 221. Pl. 18. A. maketh a Lease of Land for years to B without reservation of the Woods and Trees the Lessor cannot sell all the Woods and Trees for the Woods and Trees are parcell of the Lease and passe to the Lessee as well as the Land if they be not excepted upon the Lease for all the fruites and profits coming from the fruitfull Trees belong to the Lessee and the shadow and also the branches and loppings for fire or enclosure of fences Dyer 90. Pl. 8. If I grant unto you that if you enter into an obligation to me of one hundred pounds and after procure me such a Lease that then the same obligation shall be void and you enter into such an obligation unto me and afterwards doe procure such a lease yet the obligation is simple because the defeasance was made of that which was not 20 Eliz. 19. H. 6.62 So if I grant unto you a rent-charge out of white-acre and that it shall be lawfull for you to distraine in all my other Lands whereof I am now seised and which I shall hereafter purchase although this be but a liberty of distresse and no rent save onely out of white-acre yet as to the Lands after to be purchased the clause is void 27 E. 3. If I covenant with my Son in consideration of naturall Love to stand seised to his use of the Lands I shall hereafter purchase the use is void 25. 27. Eliz. So if I devise the Mannor of D. by speciall name of which at that time I am not seised and after I purchase it except I make some new publication of my will my devise is void Ployd Rigdens case vide Bacon ibidem plura f. 57.58 Non refert an quis assensum praebat verbis an rebus factis Coke l. 10 f. 52. b. It mattereth not whether a man giveth his assent by words or by things themselves and Deeds Whereas the assent of an Executor is necessary before any legancy can be had for that debts are first to be paid and that the Executor must look to it at-his perill Offi. of Exec. 234. the assent consent and agreement of John Morris the Executor to the Legacy of William Taylor and Elizabeth his wife did appeare in that at the speciall instance and request of the said Morris the said William Taylor and Elizabeth his wife did release the said Legacy to the said Morris