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
one may come to that and therefore Hill 37. H. 8. in the Star Chamber a Priest was branded with an P. and A. in the forehead and put upon the Pillory with a paper written for false accusation vide ibidem pluâ—a Volenti neque injuriam neque vim fieri Reg. I. C. Volenti non fit injuria f. 501. No injury can be done to a willing man If a Parson Emparsonee present another by it he hath disappropriated the advowson and maketh it presentable by his owne Act and therefore no injury A man shooteth giving warning to all and one will goe to the marke and is hurt he is without remedy 18. E. 4. 8. If I am bound to make an house if you prohibit me to come upon the land I may plead this bar 19. E. 4. 2. If there be Lord Mesne and Tenant and the King being Lord the mesne holdeth of the King in capite and the tenant holdeth of him in Socage if the tenant get a release of the meane or fore-judge the meane he shall now hold in capite for volenti non fit injuria and it shall be injurious to the King if he should lose his tenure in capite and should have in place of it a tenure in Socage Dav. 12. P. f. 67. a. If I exchange land with one hath a bad title which is knowne to me and if I know of a fraudulent conveyance and buy the Lands in both those cases the party shall have remedy though they be willing to the wrong Omne actum ab agentis intentione est judicandum Reg. I. C. Coke com f. 49. Affectio tua nomen imponit operi tuo every act is to be judged from the intention of the agent and every affection or intention giveth the name to thy work As if a man letteth lands c. for terme of yeares the remainder over to another for life in taile or in fee if the termor enter before Livery of Seisin made to him then the frank-tenement and the reversion is in the Lessor but if the Lessor and the Lessee come upon the ground of purpose for the lessor to make or the lessee to take livery the entry vesteth no actuall possession in him till livery be made because the purpose and intention giveth the name to the work and therefore if it be agreed between the disseisor and the disseisee that the disseisee shall release all his right upon the land this is a good release and the entry of the disseisee being for this purpose did not avoid the disseisin for his intent in this case did guide his entry to a speciall purpose Val. 19. Eliz. l. B. Coke ibidem The intention and agreement of the mindes of the parties is the onely thing that the law respecteth in contracts and such words as bewray the assent of the parties and have substance in them are sufficient Ployd f. 141. As if one make an obligation and the obligation is endorsed that the obligee doth will and grant that if the obligor shall stand to the arbitrement ordination and judgement of A. and B. that then the obligation shall be void there an exception was taken to the condition for that the words are the words of the obligee and not of the obligor but it was holden by the better opinion that the condition was good for there is sufficient substance of a condition and the intent of the parties appeareth and yet the words are not usuall for conditions for the words of the condition are the words of the obligors 21. H. 6. f. 55. So a grant of an annuity to one pro consilio impendendo is a grant conditionall for if he will not give counsell the annuity shall cease and yet there is not one word of a condition So T. 9. E. 4. f. 19. 22. where debate was for tithes betweene a Prior and another and the composition betweene them was that the Prior should have the tythes without challenge or contradiction of the other and the Prior granted to the other forty shillings yearly and by the better opinion the grant shal enure conditionally so as if the other disturbe the Prior in receiving his tithes the forty shillings shall cease If one make a Lease for yeares by deed and by the same deed covenanteth that the Lessee shall nor be impeached of wast that word Covenant made at the same time amounteth to as much as if he had said Habendum for years without impeachment of wast P. 21. H. 6. f. 7. I. S. did bind himselfe in an obligation of twenty pound and the obligation was Noverint universi per presentes me I. S. teneri obligari W. B. in twenty pound solvendum eidem I. c. and yet the obligation good and the Court held that the Count shall be made solvendum to the Plaintiff for the interest of the parties there appeareth and the certainty of the bond before shall not be taken away by the Solvendum after M. 4. E. 4. f. 23. So if one have a remainder of land in him and he granteth it to another by the name of a reversion of land that shall be a good grant for there the certainty of the land appeareth and then notwithstanding the mis-terming of the thing the law regardeth the intention of the parties and doth judge according to it So if I be bound to pay you at the feast of Saint Michael which shall be in the yeare of our Lord 1555. 20 s. And at the same feast of Saint Michael then next ensuing other 20 s. The law will adjudge the same feast to have the meaning of such or the like feast for it cannot be the same feast if it come after it so the law will take one word for another to supply the intent of the parties vide ibid. Ployd 141 b. Brownings case Carta non est nisi vestimentum donationis Bract. and the intent directeth gifts rather then the words Ployd 160. b. As if a receivor be bound in an obligation to his master to pay to him omnia recepta recipienda all things received and to be received in his office that by it he is not bound to pay all that he might receive but onely that which he shall receive indeed and so his intent shall rather be taken then the word H. 41. E. 3. f. 6. So where a man maketh a Lease of an house so as the lessee may make his profit of the houses within he cannot pull downe the houses or make wast of them for the intent was not such although the words seeme otherwise T. 9. E. 4. f. 22. And it was said to follow the words was summum jus and that Judges ought not to doe it but to follow the intent rather and Ployd f. 161. b. saith that such was the opinion of Bradwell in 14. H. 8. f. 22. That contracts shall be as it is concluded and agreed betweene the parties and as their intents may be taken and that cavillation with
granteth a lease for life or yeares he hath the reversion in him which he may lawfully grant but the Law requireth in this case that he be not deceived in his estate and to grant the possession of the Land whereas he hath but a reversion and therefore when he granteth the Land notwithstanding that it be in lease for life or for yeares of Record or otherwise the grant is good When the words of a grant are not sufficient ex vi termini to passe the thing granted but the grant is utterly void there any non obstante cannot make the grant good vide ibidem plura Davis f. 75. In the case of Commendams By our Law what is wrong and malum insert and against the Law of God cannot be dispensed with and therefore 11 H. 7. 12. a. It is said that the King cannot dispense with any that doth nusance in the High-way and if he doth it that such a dispensation is void 8 H. 6. 19. The King cannot grant that if a man doth a trespasse to me that I shall not have an action against him or that a man shall be his own Judge and therefore it is often said in our Books that the prerogative of the King shall doe no wrong to the Subject 13 E. 3. 8 So though the King may dispense with a Statute which prohibiteth an indifferent thing to be done yet he cannot change the common Law by his Patent 37 H. 8. Patent 110. And as to the Pope it is often said in the Bishop of St. Davis case that the Bulls of the Pope cannot change the Lawes of England Notwithstanding the word non obstante was first invented and first used in the Court of Rome which as Sir John Davis observeth f. 69. b. was a mischeivous precedent to all the common Weales of Christendome for the temporall Princes perceiving that the Pope dispensed with his Canons in imitation of him have used their prerogative to dispense with their penall Lawes and Statutes and whereas before their Lawes were religiously observed as the Lawes of the Medes and Persians Davis f. 77. The Law which ordaineth that the first benefice shall be void by the acceptance of the second may be dispensed with and so is it of the Law that ordaineth that when a man is made a Bishop that his other Benefices shall be void as Thrining saith 11. H. 4. 213. b. For those Laws were made by Ecclesiasticall policy and therefore the same policy may dispense with those Laws permissio non est officium legis quia lex ad fert necessitatem Reg. I. C. permission is not the office of the Law for the Law bringeth necessity As by the Statute of W. 2. Lands were permitted to be entailed and usury also by many Statutes yet can they not properly be termed Lawes and Statutes Confessus in judicio pro judicato habetur quodam modo sua sententia damnatur Coke l. 11. f. 30. He who confesseth in the Court of Justice is holden adjudged and in a certaine manner is condemned by his own mouth or sentence And therefore the Attainder in confession is the strongest attainder may be for the vehement presumption it hath of truth for it should be absurd to say that he hath not done such a Felony since the party himselfe hath confessed it to the distruction of him and all his off-spring And the case of confession is a stronger case then guiltinesse by verdict for though he be found guilty by verdict yet may he be innocent and therefore at the common Law he may have his Clergy and make his purgation but if he had confessed the offence upon record he shall not have his Clergy at the common Law because he could not make his purgation when the Court findeth his confession on Record for in the intendement of the Law he cannot contrary his expresse and voluntary confession in Court vide ibidem plura In praesentia majoris cessat potentia minoris Manhood in Ployd f. 498. a. In the presence of the greater power the lesser power ceaseth All the Justices agreed that the Ordinary the Patron and King ought to agree in making an impropriation and the Ordinary is the principall aagent in it in that he hath the spirituall jurisdiction and the act of appropriation is a thing spirituall and what the Ordinary of the Diasis might doe that the Pope used to doe in the Realme as supreame Ordinary and was a long time suffered so to doe and did use to make appropriations without the Bishop which were taken to be good and the Bishop never contradicted but accepted them as good for in the power of the greater the power of the lesser ceaseth and in all Ecclesiasticall jurisdiction his authority was taken as absolute and did bind the Bishop as his inferior in all acts now such authority and jurisdiction as the Pope used within this Realme was acknowledged by the Parliament 25. H. 8 and other Statutes to be in the King and that he might lawfully doe all that the Pope was accustomed and used to doe within this Realme and from him it descended to his Son Edward who as superame Ordinary did make the appropriation of his own authority and jurisdiction without the Bishop and did put these words in his Charter authoritate nostra regia ecclesiastica qua fungimur vide ibidem plura Vectigal ab origine ipsa jus caesarum est patrimoniale lex imperatoria Custome from the beginning is the right and patrimony of Caesar and Emperors and are called vectigalia a mercibus evectis invectis from Merchandizes exported and imported for custom is a prerogative and benefit to which Kings and Princes are by the Law of Nations intitled And as the Law Nations were before Kings so Kings were made by the Lawes of Nations ex jure gentium originem suam traxerunt Baldus and as soone as they were made Kings presently the Law of Nations did annex the prerogative of custome to their severall Crownes so saith Baldus cum creatus fuerit Rex omnia regalia ei conceduntur competit omnibus regibus jus imponendi vectigalia when a King was created all royall incidents were granted to him and the right of imposing customes appertained to all Kings Wherein the rules of our Law as Davis observeth f. 12. are agreeable with those of the imperiall Law for we also say that custome is the ancient inheritance of the Crowne of England and that inheret sceptro and is as ancient as the Crowne it selfe and is due by common right and by prescription and not by the grant and benevolence of Merchants or by Act of Parliament Dier 165. b. And whereas by the imperiall Law Primaria vectigalium causa ac ratio fuit ut plana tutaque mercatori praetereunti itinera praestarentur Plin. l. 19. c. 4. The first cause and reason of customes was that plaine and safe voyages should be exhibited and assured to the Merchants and in our
the day of payment make his Executors and 〈…〉 dye and the heire enter into the Land as he ought c. the Feoffor ought to pay the monies to the Executor because the Executors as he saith l. 5. f. 99. a. represent the person of the Testator for all Goods and Chattels but if the condition upon the Mortgage be to pay the Mortgagee or his heires the mony c. and before the day of payment the Mortgagee dyeth the Feoffor cannot pay the mony to the Mortgagee but the payment ought to be made to the heire for expressum c. and the Law shall never seek out a person when the parties themselves have appointed one for designatio unius est exclusio alterius the appointment of one is the exclusion of the other But if the condition be to pay the mony to the Feoffee his Heires or Executors then the Feoffor hath election to pay it either to the Heire or Executor Coke com ibidem It is a sure ground in the Law expressum facit cessare tacitum Davis 45. in the case of Tenures and therefore the expresse reservation in Letters Patents excluded the reservations and implication in Law as if the King in his Letters Patents reserveth no tenure it shall be a capite tenure but if another tenure be expressed that shall prevaile as Coke l. 6. f. 6. where in a Patent the words of the Tenendum were Tenendum de nobis per servittum unius rosae pro omnibus servitij and wheras it was objected that no tenure can be without fealty yet in this case fealty that is an incident to all services shall be admitted to stand with the words and that then the tenure so expresly reserved was so compleate that it might well exclude the Knights service tenure which otherwise the Law would have implyed Davis Ibidem where it was also resolved that although the expresse tenure be void yet no tenure by implication of Law shall arise against the expresse tenure of reservation And so in the case of a void Habendum which standeth upon the same reason it was adjudged in B.R. between Higs and Crosse 33 and 34 Eliz. which in Bucklers case is cited by Coke l. 2. f. 55. Tenant for life maketh a Lease for years and after granteth the reversion to A. Habendum from a day to come for life after the day the Lessor for years atturneth in that case the Habendum is void and that void Habendum maketh void the whole Grant and excluded the implication of Law in the Premisses and no Estate shall pass by implication of Law in the Premisses against the express limitation of the partie in the Habendum Davis ibidem A man maketh a Lease rendring rent and doth not say to whom the rent shall be paid this by implication shall be to the Lessor and his Heirs But if the words be to the Lessor the Heir shall not have it Dyer 45. 12 Eliz. 3. c. So as an Estate by implication shall be controlled by an express limitation But if I grant to another a rent which I have in fee the grant shall be for life but if I say further Habendum after the death of I. S. there all shall be void Ployd 52.156 So if the King granteth lands by Letters Patens Habendum from a day to come there the whole grant is made void by the Habendum coke l. 5. f. 93. Barwicks case He in the reversion for life gtanteth his Estate Habendum after Michaelmas and after Michaelmas the Tenant attornes yet resolved the grant is void though if there had been no Habendum it had been good by the Premisses of the Deed coke f. 2. c. 55. Davis f. 26.27 Coke l. 7 f. 41. b If the Father by Deed indented in consideration of a hundred pounds paid by his son covenanteth to be seised to the use of his son there no use shall be raised to the son if the Deed be enrolled by the statute of 26 H 8. c. 10. for that it is in the nature of a bargain and sale and that which is expressed shall cause that which is implied to cease ibid. Coke l. 4. f. 8. a. in Nokes case It was resolved by the whole Court that an express Covenant doth qualifie the generality of the Covenant in Law and restraineth it by the mutuall assent of both parties which shall extend to no further then the express Covenant Quia clausula generalis non refertur ad expressa because a generall clause implyed in Law hath no reference to an express and particular Covenant in deed Yet Quadam tacita habentur pro expressis As if the Father Tenant by Knights-service enfeoff his son and heir within age it is not necessary to aver by collusion for it is apparant Ployd Winbichs case and 27 H. 8. Dacres case 33 H. 6. 14 c. So if I covenant to stand seised to the use of my Wife Son or Cosin that shall well raise a use without any express words of consideration for sufficient consideration appeareth because paternall love and affection appear If in a Lease the express Covenant is that the Lessee and his Executors shall repaire the house demised This shall not excuse the Assignee who by an implyed Covenant in Law adherent to the Estate is tied to repair it Coke l. A Warranty in Law is not distroyed by an express Warranty as if a man lease for life rendring rent and further bindeth himself and heirs to Warranty there the express Warranty shall not take the Warranty in Law but he may choose which he pleaseth Coke l. 4. f. 81. a. vide ibidem plura Lex neminem cogit ad impossibilia Coke com f. 231. b. l. 5. f. 75. a. The Law compelleth no man to impossibility If a Deed remain in one Court it may be pleaded in another Court without shewing forth for the Law doth not compell any one to impossibilities ibidem If a Lease be made upon condition that the Lessee dwell upon the lands demised the lease being for forty years and he dieth at the end of ten years yet the Executor shall enjoy the land because the condition is become impossible Et nemo tenetur ad impossibilia Dod. No man is bound to impossibilities 37 38 Eliz. If a man make a Lease for years of woods and it is covenanted that the Lessee shall leave the woods in as good plight as it was at the time of the Lease made and during the term the woods fell down by suddain tempest the Lessor shall not have an action of Covenant because it is impossible the Lessee shall perform it Perk. f. 142. b. Coke l. 1. f. 98. a. Coke com f. 206. a. If the condition of a Bond be impossible at the time of making the Condition the Condition is void because impossible and the Bond good As if a man be bound in an Obligation c. with Condition that if the Obligor doth go from the Church of S. Peter
the poor and the twenty pounds to the Queen and therefore doth the Statute of 3 Jac. c. 4. give a more speedy remedy for the said twelve pence yet shall they not be punished but upon one of them Yet when the latter affirmative Statute is contrary to the precedent Statute in matter the former abrogateth the latter as by the Statute of 33 H 8. c. 23 it is enacted that if any person being examined before the Councell of the King or three of them shall confess any Treason misprision of Treason or Murther or be to them vehemently suspected he shall be tried in any County where the King pleaseth by his Commission and after by the Statute of 1 2 P. M. c. 10. it was enacted That all trialls hereafter to be had for any Treason shall be had according to the course of the Common Law and not otherwise That latter act and though the latter words had not been had abrogated the first because they were contrary in matter But that doth not abrogate the Statute of 34 H. 8. c 2. of the triall of Treasons beyond the Seas notwithstanding the words are in the negative because it was not contrary in matter for it was not triable by the Common Law Dyer 132. Stanf. 89. 90. So the Statute of 1 E. 6. of Chanteries being in the affirmative doth alter the Statute of H. 2. c. 41. which giveth a Cessavit cantaria also in the affirmative for the one is contrary to the other in matter vide plura Coke l. 9. f. 63. a. But whensoever Lawes are contrary in quality that is where the first is a materiall or express affirmative and the latter an express or materiall negative and when the first is a materiall or express negative and latter affirmative there the latter Law doth abrogate the former As the Statute of 5 E. c 4. which prohibiteth every person to use or exercise any craft mystery or occupation unless he hath been an Apprentice for seven years doth alter the Common Law by which any one may in any manner worke in any lawfull Trade without any service precedent for without an Act of Parliament no man can be restrained to worke in any Trade Coke l 11. f. 54. a. in the Taylors of Ipsiches case And to conclude to this Argument with the generall ground given by Sir Edward Coke l. 1. 11. f. 67. a. That for that Acts of Parliament are established with such gravity and wisdome and the universall consent of all the Realme they ought not through any strained construction out of the generall and ambiguous words of a subsequent Act be abrogated as where the Statute of 16. R 23 c. 5. enacteth that all the Lands and Tenements of any one attainted in a Praemunire shall be forfeited to the King in the case of one Prudgion Pasch 21. Eliz. being tenant in taile of certaine Lands and Tenements who was attainted of a Praemunire the question before all the Judges of England was whether the estate taile was a bar or no and it was resolved by all the Justices that those generall words had not repealed the Statute de donis conditionalibus but that onely he shall forfeite them for his life and that the issue in taile should inherit vide ibidem plura Lex non patetur fractiones divisiones Statuum Coke l. 1. f 87. a. The Law will not suffer fractions and divisions of estates As if a man make a lease for life upon condition that if he doth not pay twenty pounds that another shall have the Land that future limitation is void Ployd f. 25. c. M. 18. H. 8. 3. And if after the Statute of 1. R. 3. before the Statute of 27. H. 8. A man had made a Feoffment to the use of one for life or in taile and after to the use of another for life or en-taile and after to the use of another in fee they in the Remainder might not make a Feoffment nor grant their estates by the generall words of that act for then there should be a fraction and division of estates which the Law will not suffer vide ibidem plura in Corbets case Coke l. 3. f. 32. b. If a man be seised of a Mannor to which a Leet waife or stray or any other hereditament which is not of any annuall value is appendant or appurtenant there by a devise of the Mannor with the appurtenances those shall passe as incidents to the Mannor for in that the Statute enableth him by expresse words to devise the Mannor by consequence it enableth him to devise the Mannor with all incidents and appendants to it and it was never the meaning or the intention of the makers of the Statute that when the Devisor hath power to devise the principall that he shall not have power to devise it that was incident and appendant to it but that the Mannor c. shall be dismembred and fractions made of things which by legall prescription have been united and annexed together Ibidem for the Law will not permit such factions in Estates Coke com f. 147. b. If a man hath a rent-charge issuing out of certaine Land and he purchaseth any part of the Land to him and his heires the whole rent-charge is extinct because the rent is entire and against common right and issuing out of every part of the Land and therefore by purchase of part is extinct in the whole and cannot be apportioned Coke com 309. b. If the reversion be granted of three acres and the Lessee agree to the said grant for one acre this is good for all three and so it is of an Attornement in Law if the reversion of three acres be granted and the Lessee surrender one of the Acres to the Grantee this Attornement shall be good for the whole Reversion of the three Acres according to the grant Apices juris non sunt jura Coke com f. 2 83. b. nimia subtilitas reprobatur in Lege Coke l. 4. 4â— b. The Law of England respecteth the effect and substance of the matter and not every nicity of forme or circumstance and too much subtility is reproved in the Law As it was alledged for an exception in the Enditement that the Enditement was taken before I. S. Coronatore in comitatu praedicto and not de comitatu praedicto or comitatus praedicti and every Coroner of one County is a Coroner in every County of England but not of every County but it was not allowed for the Coroner in the County c. shall in all reasonable intendement be taken for the Coroner of the County and so it is used in the Writ de coronatore elegendo ibidem vide plura Coke l. 5. f. 120. 122. It is a rule in Law that Enditements ought to be certaine but there are three manner of certainties the first is to a common intent and that sufficeth in Bars which are to defend the party and excuse him the second is to a generall
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
place and it is not materiall whether any person be there or not and if one place be as notorious as another the Lessor hath election to demand it at which he will and if the Lessor demand it at a place which is not notorious or at the back doore of the house and in pleading alledge a demand of the rent generally at the house the Lessee may traverse the demand and upon the evidence it shall be found for him for that it was a void demand Ibidem and Coke com 201. and 202. b. a. But if a rent be reserved upon the demise to be payable at a place out of the land he that shall take advantage for non-payment of the rent ought to demand the rent at the place where it is limitted to be paid and therefore the opinion in Kelwellies case Ployd f. 70. that he in the reversion may enter for the non payment of such rent without any demand made was utterly denied by the whole Court Ididem and Coke com 202. a. But if there be no place appointed where the rent is to be paid there the rent is to be tendred on the Land Coke 210. a. b. Because it issueth out of the Land but otherwise it is in such a case of a Feoffment or Mortgage for it is not sufficient for the feoffor to be upon the land there ready to pay the money to the feoffee at the day set but he must seek the feoffee if he be then in another place within the Realme of England and so it is if a man be bound in an obligation of twenty pound upon condition that he pay to the obligee at such a day 10. l. that then c. The obligor ought to seek the obligee if he be in England and at the day appointed tender the ten pound otherwise he shall forfeit the twenty pound Coke com ibidem and therefore as he adviseth it shall be good and a sure way upon such a feoffment or mortgage to appoint a speciall place where the money shall be paid and the more especiall it is the more better it is Coke com f. 211. b. And so is it also upon an obligation Ployd f. 71. a. and b. If the obligee be in his own house and the obligor come to him there and tender the mony he shall not be a trespassor for his comming there for in that by the taking of the obligation the obligee was assenting that the obligor should pay him the ten pound by necessity of reason he ought to be assenting to come to him to offer unto him the 10. l. for to come to his person precedeth the offer which he was assenting to therfore ex consequenti he shall not punish him for that thing to which himselfe was agreeing But if he had entred into the house of another man there he shall be a trespassor to the said man if the same man will take him so vide plura ibid. Kedwellies case Exception Though a common person in reversion cannot enter for non-payment of rent without demand yet if the King make such a Lease for yeares rendring rent with such a condition ut supra the King shall take advantage of the condition without any demand because the law which alwaies observeth decorum and conveniency appointeth the subject to attend upon his soveraigne and in such case to make the first act though it be in case of condition which trencheth upon the destruction of his estate But if the King granteth the reversion over his grantee shall not take advantage of the condition without demand for it is a personall prerogative annexed to the person of the King and not in respect of the nature and quality of the land Coke l. 4. f. 23. A So the King maketh a Lease for yeares rendring a rent payable at his receipt of Westminster and after the King granteth the reversion to another and his heires the grantee shall demand the rent on the Land and not at the Kings receipt at Westminster for though the law without expresse words doth appoint the Lessee in the Kings case to pay it at the Kings receipt yet in case of a subject the law appointeth the demand to be on the land Coke com f. 201. b. and Coke l. 4. f. 72. 73. Burroughs case vide ibidem plura Circumstantia loci est testis veritatis certitudinis Ployd 393. a. The place is materiall and is a circumstance and witnesse of truth and certainty As if a man will plead the Letters Patents of the King bearing date at Westminster and indeed they did beare date at another place it seemes in 38. H. 6. by Choke f. 34. by Littleton f. 36. and by Redsham Moile and Prisot f. 37. That for the variance of the place it failed and the Plea shall be adjudged against him So if the King give authority to one to arraigne one upon indictment taken against him at Dale in such a County when indeed the indictment was taken at another place in the same County he cannot arraigne him for the place declareth the certainty what indictment the King intended for it may be there were two indictments of the same matter and thing and the one of them taken in one Village the other in another and by it the expresment of the Village declared the certainty of it Dier 105. a. An outlawry was reversed because it was ad comitat Lancaster ibidem tent and did not say at Lancaster or such certain place to which ibidem might be referred Ployd f. 191. a. The place must be shewne by the Plaintiff where the things were done because the visne should come thence if the things be traversed as H. 6. E. 4. 11. Brooke lieu 55. The place ought to be shewn in the count in debt upon an obligation where the obligation was made and M. 39. H. 6. 32. Brook lieu 45. If an attornement be alledged the place ought to be pleaded where it was made and in such like things of effect that may be traversed the place ought to be shewne where the thing was done for the certainty of the triall and f. 149. b. the place ought to be shewne where the attornement was made if the attornement bee pleaded 15. H. 7. 24. Coke l. 6. f. 47. Dowdales case when the place is materiall as when it is parcell of the issue there the Jurors cannot find the point in issue in any other place for by especiall pleading the point in issue is restrained to a certaine place but when the place is named onely for conformity and necessity and when it is parcell of the issue as in the case of 10. Eliz. 271. in debt against the heire he pleaded rieâ— by descent generally in that case the Plaintiff cannot reply in such generall manner for then no triall can be had of it but in case for conformity and necessity of a triall he ought to name a certaine place as there he did in the Parish and
words contrary to the simple intent as Tully saith in his Offices is calumnia quaedam ninis callida malitiosa Juris interpretatio ex quo illud summum jus summa injuria a kind of a calumny and malitious interpretation of the law from whence that saying proceeded the rigor of right is the extremity of injury As he putteth the example of one had made a truce for 130. daies with his enemy and in the night he plundered and depopulated his possessions because he said the truce was for daies and not for the nights which Cicero accounteth meere injury and injustice and admonisheth men to avoid the like interpretation of the law and to observe the intent of the words and certainly words are but testimonialls of the intent and therefore Ployd f. 107. b. It is said it is the offices of Judges to take and expound the words as the common people doe use them to express their intent according to their intent As a Lease was made for life and that after his decease the tenements redibunt to a stranger it shall be taken as a remanebunt because to that purpose it was there used and therefore by 18. E. 3. f. 28. It shall be taken by way of remainder So a lease for life the reversion to a stranger shall be taken as a remainder for the reason abovesaid 30. M. 1. ante 157. vide ibidem plura in Hills case And so Ployd f. 291. a. Where a covenant cannot be performed according to the words it shall be performed according to the intent as neere as may bee as in the case of Littleton where a man maketh a feoffment upon condition that the feoffee shall make an estate in speciall taile to the Feoffor and his wife and the heires of their bodies if the Baron dieth before the estate made the estate shall be made as neere to the condition as may be to wit to the feme for life without impeachment of wast the remainder to the issues in taile according to the first limitation and if the feme be dead then the feoffee ought to give the lands to the issues and the heires of the bodie of his father and his mother engendred If the words be performed and not the intent the agreement is not performed Ployd f. 291. b. according to the rule of the civill law leges non ex verbis sed ex mente sunt intelligendae lawes are not to be understood and construed by the words but by sense and meaning of the parties as where the Defendant was obliged upon condition that if his feoffees of his Mannor of W. should grant to the Plaintiff an annuall rent of forty shillings out of the said Mannor that then c. and he had three feoffees and two of them granted to the Plaintiff the rent There the words of the condition were performed for the feoffees had granted the rent and yet he had not performed the condition for all the Justices there held that all the feoffees ought to have granted the rent and so it should be sure for there the third might have the land by survivor and he might avoid the rent and also more then two parts of the Mannor were not charged with the rent and so the intent is not performed though the words be M. 22. H. 6. f. 10. So if a man be bound to enfeoff me of the Mannor of D. and he maketh a feoffment ro another of parcell of it and then enfeoffeth me of the Mannor he hath performed the words but yet he hath not performed the intent which was that I should have had all the Mannor as it then was H. 3. H. 7. 4. So a remainder was limited to B. Si ipse vellet in-habitare residens esse if he would dwell and bee resident on the land during the terme there it is taken that if he was resident one week during the terme he had performed the words of the condition but not the intent for the intent was that hee should be resident all the terme 4. E. 6. ante 23. So an Abbot was Parson Emparsonee of a time c. and he had annuity for the time of which no memory runneth in right of the Parsonage and he as Abbot without naming himselfe Parson brought a Writ of annuity and counteth upon a prescription in him and his predecessors Abbots and the prescription traversed and found for the Plaintiff there every word of the Verdict is true and yet attaint lay against the Jury because he brought the Writ in the name of the Abbey and so claimed the annuity whereas he was not seised by that forme but as Parson and for that he did not claime as Parson they ought not to have found the issue with him and so the words of the Verdict and the intent of the Verdict did not agree in one M. 10. E. 4. f. 16. Ibidem in Chapmans case It is not requisite alwaies that the agreement shall be performed according to words because the intent is performed which is the principall point of the agreement Ployd f. 295. a. b As if a man be bound to pay a lesser summe upon a day certaine if I pay the summe before the day the condition is performed H. 10. H. 7. 24. So if the condition be in a Mortgage that I pay the money at such a place if I shall pay it at another place and the Mortgage accept of it it is well enough for the value is the effect So if a feoffment be made upon condition that if the feoffee doe not pay the Feoffor such a summe at such a day that then the feoffor shall enter If the feoffee before the day make a feoffment over and at the day doth not pay the summe there the second feoffee at the day may tender and pay the summe though the agreement was no other but that the first feoffee shall pay the summe Litt. vide ib. plura If a man make a feoffment on condition to enfeoff two in fee at such a time and before the time one dieth the feoffment ought to be made to the survivor and his heires onely for the intent which appeareth in the condition Ployd f. 345. 4. H. 7. f. 127. Every one who groundeth an Act with discretion hath an intention in the inception and neither beginneth any thing but to some end and in the progression hath the same intent and so in the consummation so as the same intention is the cause of every part and therefore the intention is principally respected in all humane acts and especially in those which concerne the disposition of our estates and in feoffments and grants A feoffment by deed of a Mannor with an advowson appendant and no livery made the advowson passeth not yet an advowson may pass without livery but the intention and the meaning was that the Mannor and it should pass together Finch Nomot 58. A bargaine and sale of Land and a reversion by deed not enrolled the reversion passeth
suerum cum averijs Abbot Conventus renounceth all the Common which he hath used to have of his Cattle with the Cattle of the Abbot and Covent and that release of Common was there taken void because he did not shew to whom he renounced the common yet there was a full intent for he had common in the Land of the Abbots and he had intent to release it to him but for the incertainty it was void And a Lease was made to Baron and Feme and the reversion of the Land that the Baron held was granted and it was held void notwithstanding the intent because it missed of the certainty of the particular estate H. 13. E. 3. Fitz. grants 63. And so where there were Lord and tenant of three acres and the Lord granted the signiory which he had out of one Acre it was held void in 17. E. 3. notwithstanding the intent because his intent did not agree with Law and so where a man holdeth of one by Castle garder Homage and Fealty and he granteth to another all his services it was held in 31. E. 1. that the Castle-garder cannot passe because he did not grant such a Castle but reserved it and therefore he who hath not the Castle cannot have the Castle guarder so his intent in granting al the services could not make all to passe because it was not according to Law and so the Law ruleth the intent and the intent not the Law Ployd ibidem in Throckmortons case Coke l. 1. f. 84. b. A man giveth Land to M. and 1. his Sisters and to the heirs of the bodies of them lawfully begotten by which they had a joynt estate for life and severall inheritances and the Donor intending that neither of them should break the Joynture but the Survivor should have all per jus accrescendi added this clause sub hac forma that shee that should longest live should have all the Land but because his intent is contrary to Law for this cause if the Joynture be severed by fine the Survivor shall not have the part so severed by the said clause which he hath inserted of his conceit and his own imagination contrary to Law and reason ibidem But in Wills the intent shall be observed and onely thought of because the Testator had no time to order all things according to Law by presumption but is suddenly made oftentimes and so the diversity Ployd f. 162. b. And therefore Ploy f. 414. a. The intent in devises maketh estates to passe contrary to the rules of the common Law in deeds and other gifts As if I devise Land to one A. for life whereas there is not any such the remainder in fee he in the remainder shall take the Land though there be no estate precedent And 34. E. 3. one had issue a Son and Daughter and deviseth Land devisable to one for life upon condition that if the Son disturbe tenant for life or his Executors of their Administration that then the Land shall remaine to the Daughter and dyeth the Daughter after the death of the tenant for life bringeth a Formedon in remainder against the son alledgeth that the tenant had disturbed the Tenant for life and the Executors and the Tenant traversed it upon it issue joyned and the condition took the fee out of the Son and put in the Daughter by allowance in Law in performance of the intent of the Devisee though the remainder did not vest when the first estate took effect Ployd ibidem Coke com f. 322. a. b. If a man lease Lands devisable for life c. the reversion by his testament in fee c. and dyeth and then the Tenant maketh wast the Devisee shall have a writ of Wast although the Tenant never attorned because the will of the Devisor made by his will shall be performed according to the intent of the Devisor and if the Tenant will never attorne then it shall never be performed and therefore he shall have an action of wast or distraine without Attornement Littleton for it is a maxime of the common Law ultima voluntas testatoris est perimplenda secundum veram intentionem sufam Coke ibidem for if a man devise his Tenements to another by testament Habendum sibi in perpetuum and dyeth and the Devisee entreth he hath a Fee-simple causa qua supra and yet if a feoffment had been made to him by the Devisor in his life of the same Tenements Habendum sibi in perpetuum and livery and seisin upon it made he shall have an estate onely for terme of his life Littleton Ibidem Coke com f. 9. b. Though by the common Law an estate of inheritance may not passe without these words Heires yet in devise it may as if a man devise twenty acres to another and that he shall pay to the Executors for the same ten pound he hath a Fee-simple by the intent of the Devisor albeit it be not the value of the Land 21. E. 3 16. So if a man devise Lands to give or to sell or in feodo simplici or to him or his Assignes for ever in all these cases a Fee simple doth passe by the intent of the Devisor but if the devise be to a man and his Assignes without saying for ever the devisee hath but an estate for life if I devise Land to one sanguini suo it is a Fee simple but if it be semini suo it is an estate tayle ibidem Exception Coke l. 1. f. 85. 86. in Câ—rbets case It was ruled by all the Justices that such an estate which cannot by the rules of the common Law be conveyed by act executed in his life by advice of counsell learned in the Law such an estate cannot be devised by the will of man who is intended in Law to be in ops consilij as if I devise Lands to one by will in perpetuum he hath a fee for such an estate may be conveyed by estate executed but if I devise further that if the Devisee doth such an act that then another shall have his Lands to him and his Heires that is void because such limitation if it was by act executed is void for as Dyer f. 33. pl. 12. A man cannot devise an estate in fee to one and if he doe not such an act his estate shall cease and another have it for when he hath disposed the estate in fee he hath not power in the same will to devise it to another and f. 4. pl. 7. when the intent of man who maketh a testament doth not agree with the Law the intent shall be taken void as if a man devise his Land to H. in fee and that if he dye without heir that M. shall have the Land this devise is void because one Fee-simple cannot depend upon another in law the same law is if the devise be to the Abbot of Saint Peter de W. where the foundation is to the Abbot of St. Paul
this is an accord rather then a contract and upon such accord the thing in recompence must be paid or delivered in hand for upon accord there lyeth no Action Dr. and St. c. 24. f. 104. which accordeth with the resolve in Cok l. 6. f. 43. Blakes case accord with satisfaction is a good bar for the personalty but not for the realty vide ibid. plura An implicite consideration is when the law doth intend a consideration so the Host of any common Inne may detaine a mans horse if he will not pay him Dier 30. And a Taylor may deteine the apparrel untill he is paid for his labour 5. E. 4. 2. Fulb. l. 1. f. 6. Hereunto belongeth contracts in law though not arising from the consent of the parties as he that findeth another mans goods is chargeable by reason of the possession to him that right hath so he that receiveth monies to ones use or to deliver over to him is chargeable as a receivor so is he that entreth into land and receiveth the profits Finch Nomot f. 181. Exception In an action of debt upon an obligation the consideration upon which it was made is not to be enquired for it is sufficient to say that it pleased him to make the obligation Ployd 309. b. vide ibid. plura Though it be probable that upon every bond there is a contract because he confesseth the debt but if there were none the creditor needeth not to prove no more then the delivery of it And for the same reason the law respecteth matters of profit and interest more then matters of pleasure trust and authority or limitation for matters of profit shall be taken more largely and may be assigned and not be countermanded but matters of pleasure trust and authority shall be taken more strictly and may be countermanded Finch Nomot f 31. As a licence to hunt in my Park or to walke in my Garden extendeth onely to himselfe and not to his servants or other in his company for it is but a thing of pleasure otherwise it is of a licence to hunt kill and carry away the Deer for that is a matter of profit 13. H. 7. 18. A way granted to a Church over my land extendeth not to any other but to himselfe for it is but an easement 12. H. 7 25. b. A reversion granted to two joyntly and the meant attorneth to one it is a void attornement 11. H. 7. 12. b. If the Sheriff be-head one should be hanged it is felony 35. H. 5 58. b. The King licenceth one to alien the third part of his land and he alieneth all it is a void alienation for all 4. E. 6. 68. b. A lease is made to A. and B. for their lives A dieth B. shall have all during his life for it is an interest but if a lease be made to I. S. during the life of A. and B. there if one of them die the estate is utterly determined for that is a limitation A licence to come to my house to speak with me 9. E. 4. 4. b. or goods bailed over to deliver to I. S. 1. E. 5. 2. or to bestow in almes Dyer 22. or a letter of Attorney to deliver seisin Perkins all these may be countermanded before they be done because they be matters of trust Bur if I present I. S. to a Church I cannot afterwards vary and present a new for a kind of interest passeth out of me 14. E. 4. 1. So if I deliver an obligation as an escrowe into a strangers hand to be delivered to the obligee upon condition performed I cannot recall it for the obligee is as it were a party and privy to the delivery Perk. 19. b. Nemo tenetur prodere seipsum Ployd f. 32. b. The Law will not enforce any one to shew that which is against himselfe As if a man grant to one an Annuity pro consilio impendendo the Grantee shall have a Writ of Annuity without shewing that he hath given him Counsell for the shewing of it is not for his benefit and the deniall Counsell goeth in defeasance of the Annuity which ought to be shewen by the Plaintiff because he shall have the benefit of the defeasance M. 39. H. 6. f. 22. So in 15. H. 7. f. 1. It is holden if an Annuity be granted to one untill he be promoted to a benefice he shall have a writ of Annuity and shall not shew that he is not advanced to a benefice for that goeth in defeasance of the Annuity which must be shewen by him who shall take advantage of the defeasance but there it is holden that if he had granted that if the party had first done such a thing that then he shall have an Annuity that there he ought to shew the performance of the thing in his count to enable him to the Annuity in that the condition precedeth the estate and enableth him to to the estate and so the diversity vide ibidem plura in Colthirsts case Nemo tenetur turpitudinem suam detegere Reg. I C. No man is bound to bewray his own shame and crime and therefore the Law is that if a man for feare or simplicity will confesse himselfe guilty of a Felony yet the Judges must not record that confession but suffer him to pleade not guilty Finch Nomos f. 29. Accusare nemo se debet nisi coram Deo Vasques no man ought to accuse himselfe but before God and therefore no man ought to be enforced to sweare against himselfe before man and the reason thereof is given by Coke l. 4. f. 9. 5. Slades case Jurare in propria persona est saepenumero in hoc seculo praecipitium diaboli ad detrudendas miserorum anim is ad infernum to sweare in his own person is oftentimes in this world the precipice of the Devill to cast downe the soules of miserable men into hell and therefore in debt or other action where wager of Law is admitted by the Law the Judges without good admonition or due examination of the party doe not admit him to it and for this reason Coke is of opinion that where one may have severall action to wit an action upon the case upon an assumpsit or an action of debt wherein the Defendant may wage his Law it is better and lesse mischeivous to bring an action upon the case then an action of debt for now experience proveth that the consciences of men grow so large that the respect of their private commodity doth rather induce men and principally those who have declining estates to perjury according to the censure of the Satyrist Jures licet Samothracum Et nostrarum aras Juvenall contemnere fulmina pauper Creditur atque deos Swear by our Altars and the Gods of Wonder For gaine the poore will scorne them and Joves thunder And therfore by the Civil Law Rejicitur pauper pro teste a poor man is excepted against for being a witness though in our Law he is a sufficient witness
flyeth to the wall or to some other unpassable place to save his life and upon the pursuit of the other he killeth him this is man-slaughter in his own defence 3. E. 3.284 From morall Philosophy NExt in order succeeedeth morall Philosophy the exact knowledge of which as Picolonomy Inductio ad libros Civil Philos cap. 6. cannot be comprehended without the precognition of the naturall and therefore hath the precedency for the morall faculty doth instruct men to avoid vices and to cure the maladies of the mind which cannot be compleatly accomplished without the naturall contemplation of the affections of the soul it is called Ethica by the Phylosopher or institutions of manners by which the oblique manners of men are rectified and their Enormities regulated and certainly from such exorbitances of manners originally proceeded the institutions of Lawes and from whence as Doderidge all Laws are in generalty derived for in the primary age which may rather be named the Iron then the golden age when men lived like beasts Dod. English Lawyer f. 250. the one praying on the other according to the censure of the Philosophicall Poet. Quod praedae obtulerat fortuna cuique ferebat Sponte sibi quisque valere vivere doctus What fortune offered for a pray each one Layd claime to it learned to live alone And serve himselfe Then were Laws first excogitated to suppresse the barbarous Savageness of such humane beasts and to reduce them to a more civill association as the Venusine Poet rightly Jura inventa metu injusti fateare necesse est Tempora si fastosque velis evolvere mundi If we revolve the Annalls of mans time From the worlds birth we must confesse and find That Laws were founded for feare of the unjust Seeing then Laws were introduced from the depraved judgements and corrupt manners of men who will not acknowledge that the science by which they are formed and the principles deduced from it are requisite and materiall to the fundamentall knowledge of the Law From which Fountaine our Law doth draw these grounds and maximes Illud possumus quod jure possumus Reg. I.C. We can doe that which by right we can doe for as Boetius potentia non est nisi ad bonum ability and power is not but to good for the power to have liberty to doe wrong is not by such liberty augmented but diminished potentia injuriae est impotentia naturae the power to doe injury is the impotency of nature as to decay and dye is no power but in respect of the privation and diminution in the thing is rather impotency as the Angells and Saints confirmed in glory and cannot sin are more powerfull then man who through his impotency can sin So a King ruling royally and with whom whatsoever shall please him hath the power of a Law and may doe what evill he lift is more impotent then he that doth all according to the rule and square of Law and therefore doth the Law give this rule Illud Rex solum potest quod de jure potest Coke l. 3. 99. f. 123. l. 1. 11. f. 7. Solum Rex hoc non potest quod non potest injuste agere The King onely can doe that which by right he can doe and the King can onely not doe this that he cannot doe any thing unjustly as 4. E. 4. 15. the King can be no disseisor he can be no wrong doer so if the King granterh and releaseth the services to the tenant and his heires that shall not extinct the tenure in all for necessity of the tenure and the King cannot by his charter alter the Law and therefore it shall be expounded as neere to the intention of the King as may be and that is to extinguish all the services but it onely which is incident inseperably to every tenure and that is fealty for it the King cannot doe by Law Coke l. 9. f. 123. a. And Coke l. 11. f. 72. a. The King shall not be exempt by construction of Law out of the generall words of Acts made to suppresse wrong because he is the Fountaine of Justice and common right and the King being Gods Lievtenant cannot doe wrong and with it accordeth 13. E. 4. 8. in the case of Alton woods l. 1. f. 41. So Lands were given to Henry the seventh and the heires males of his body and the question was whether the King in regard that he was not expresly restrained by the Act of 13. E. 3. de donis conditionalibus post prolem masculam sussitatum might alien or no and it was adjudged he could not alien but was restrained by the said Act for it were an hard argument to grant that the Statute which restraineth men to doe wrong and evill shall permit liberty to the King to doe it Ployd f. 246. Signior Barklys case Coke ibidem vide plura Potestas regis juris est non in juriae cum sit author juris non debet inde injuriarum masci occasio unde jura mascuntur Bract. l. 2. The Kings power is of right and not injury and as he is the author of right there ought not from thence to arise occasion of injury from whence rights proceed As if one who intendeth to sell his Land and by fraude conveyed it by deed enrolled to the King to the intent to deceive the purchaser and then he selleth the Land to another for a valuable consideration maketh conveyance accordingly in this case the purchaser shal enjoy the land against the Queen by the Statute of 27. Eliz. c. 4. For though the Queen be not excepted yet the act being general made in suppressing of fraud shall bind the Queen So if tenant in tail be seised of Land the remainder over in tail or in fee and he in the remainder knowing that tenant in tail will alien the Land and by recovery bar his remainder to the intent to deprive the tenant in tail of his birth-right and power that the Law hath given him to bar the remainder and of intent and purpose to deceive the purchaser granteth his reversion to the Queen by deed enrolled and then tenant in tail for a valuable consideration alieneth the Land by common recovery and dyeth without issue the purchaser shall enjoy the Land against the Queene by the Statute of 27. Eliz. the words of which are that every conveyance c. made c. to the intent and of purpose to deceive a purchaser t. shal be deemed onely against such purchaser c. to be utterly void vide ibidem plura in Magdalen Colledges case l. 2. in Cholmlys case f. 51.52 And the King hath a prerogative above all his Subjects that where by fraude or salse suggestion he is deceived that he in that case shall avoid his owne grant jure regio 22. E. 3. 47. in the Earle of Kents case Stanf. pr. regis 84. a. As the King can neither doe himselfe injury nor others And
a fine with proclamations now by the present right he hath five years by the first favant and if after these five years A. doth dye he shall have other five years for the next remainder by the second savant which giveth them as to other persons which have a future right and if after those five yeares B. doth dye he shall have other five years by the other remainder for saith he it is the text of the civil Law when two rights meet together in one person it is all one as if they were in severall persons Ployd ibidem vide ibidem plura in the Lord Zouches case Exception Coke l. 7. Calvins case f. 14. b. This rule holdeth not in personall things that is when two persons are necessarily and inevitably required by Law as in the ease of an alien borne there is for in the case of an alien borne you must of necessity have two severall legiaries to two severall persons and no man will say that now the King of England may make a League with the King of Scotland and that because in the Kings person there concur two distinct Kingdomes it is all one as if they were in severall persons vide ibidem f. 2. Coke l. 4. f. 118. a. Though a Bishop when he is translated to an Arch-Bishoprick or a Baron be created an Earle now he hath both those dignities and as it is commonly sayd when two rights concurr in one person it is all one as if they were in severall persons yet the Act of 21 H. 8. was alwayes construed strictly against Non-residence and Pluralities as a thing much prejudiciall to the service of God and the instruction of his people and therefore within that Act an Arch-Bishop shall have no more Chaplaines then as an Arch-bishop or an Earle then as an Earle for though they have diverse dignities yet is it but one and the same person to whom the attendance and service shall be made and if a Baron be made Knight of the Garter or Warden of the Cinque Ports he shall have but three Chaplaines in all Et sic de similibus quia difficile est ut unus homo vicem duorum sustineat because it is an hard thing for one man to undergoe or sustaine the Place and Office of two persons Coke l. 4. In the case of the death of one within the Verge the Coroner of the houshold of the King and the Coroner of the County shall joyne in the Inquiry and if one be Coroner of both he shall well execute this authority Quilibet potest renunciare juri pro se introducto Coke Comment f. 99. a. Every man may renounce or refuse a Law made or brought in for himselfe as a man seised of lands may at this day give the same to a Parson Bishop c. and their successors in frank-almoigne by the consent of the King and the Lords mediate and immediate of whom the Land is holden for every one may renounce a Law brought in for himselfe and f. 223. b. The Statute of 32. H. 8. giveth power to tenant in tail to make a lease for three lives or twenty one years yet if a man make a gift in tail upon condition that he shall not make a lease for three lives or twenty one years the condition is good for the Statute doth give him power to make such leases which may be restrained by condition and by his own agreement for this power is not incident to the estate but given to him collaterally by the act according to that rule in Law Quilibet potest c. Coke l. 10. f. 101. a. In the Act of 23. H. 6. c. 10. the words upon reasonable sureties of sufficient persons are added for the security of the Sheriff and therefore if he will take but one surety be it at his perill for he shall be amerced if the Defendant appeareth not and for it the Statute doth not make the obligation void in such case for the said branch which prescribeth the forme requireth that the obligation shall be made to the Sheriff himselfe c. by the name of their office and that the prisoners shall appeare in which clause no mention is made of the sureties so as the intent of the Act was that for that it was at the perill of the Sheriff to leave it to his discretion to take one or more for his indemnity and peradventure it may be better for him sometimes to take one that is sufficient then two others and though the sureties or surety have not sufficient within the same County as the Statute mentioneth yet the obligation is good enough for those words of the Act as to that point are more for counsell and direction of the Sheriff then for precept and constraint to him and that for the safety of the Sheriff for if the Defendant cannot find two sufficient sureties having sufficient within the same County the Sheriff is not bound to let him to bail and this resolution agreeth with the ancient rule to wit Quilibet potest c. An Orphant in London exhibited a bill in the Court of request against another for discovery of part of his estate Phesant prayed a prohibition upon the custome of London but it was resolved that he might sue in what Court he would and wave his priviledge there 19. C. B. R. But this case extendeth not to any thing that is against the Common-wealth or common right Coke com f. 166. a. Summum jus summa injuria Ployd 160. b. The rigor of the Law is the extremity of injury if a man make a lease of a messuage so as he may make his profit of his houses there within he cannot abate the houses or make wast of them by the opinion of the book H. 17. E. 3. f. 7. for the intent was not such though that the words seem otherwise and sayd to pursue the words is Summum jus which the Judges ought not to doe but ought rather to pursue the intent And for the same reason the Executors of Tenant for life shall have reasonable time to remove his goods after his decease and a man shall have reasonable time wherein he shall purchase a Writ of Journys accompt Finch Nomot Jus descendit non terra 20 H. 6. 5. The right descended and not the land and Coke Inst f. 345. a. b. There is a right which includeth an estate in esse in Conveyances which he in reversion and remainder hath and hath jus in re and may be granted to a stranger with attornement or released to him in possession as if Tenant in fee-sample maketh a Lease for yeares and releaseth all his right in the Land to the Lessee and his heires the whole estate in Fee-simple passeth and also the release to him in possession with the reservation of a rent is good and there is another right which is called a bare meere and naked right and jus adrem when an estate is turned to a right
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
Dower and distraineth the tenant albeit the grant of Mesne was to acquit him against the Lord and his heires onely yet because she continued the State of her husband and the reversion remained in the heire this grant of the acquittall did extend to his wife for Qui haeret Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba ipsa fienda est Coke l. 7. f. 24. a. So often as there is no ambiguity nor doubt in the words there no exposition against the expresse words is to be made If A. by Deed granteth rent out of the Mannor of D. to have and receive it to him and his heires and further granteth by the same Deed that if the rent be behind that the grant shall distraine in the Mannor of S. both the Mannors are charged the one with the rent the other with the distresse for the rent the one issueth out of the Land and the other is to be taken upon the Land for here a rent is granted expresly to be issuing out of the Mannor of D. and the parties have expresly limited out of which Land the rent shall issue and in which the distresse shall be taken and the Law shall not make any exposition against the expresse words and intention of the parties when it can stand with the rule of Law for where there is no ambiguity in the words there is no exposition to be made contrary to the expresse words ibidem in Calvins case Exception Yet as Mr. Ploydon saith f. 18. b. The words of the Law of nature of the Law of the Realme and the Law of God will yeild and give place to some acts and things done against the words of the same Laws and that is when they are infringed to avoid greater inconveniences or for necessity or by conpulsion For inconvenience It is a rule in the Law that factum unius alteri nocere non debet no mans deed ought to hurt another but there is another maxime that it is better to suffer a mischeife then an inconvenience which is to be preferred before it Coke com 152. b. As if there be Lord Mesne and Tenant and the Tenant holdeth of the Mesne by five shillings and the Mesne holdeth over by the service of twelve pence if the Lord purchaseth the Tenancy the Mesnalty is extinct because when the Lord hath the Tenancy he holdeth of the Lord next parament to him and if he should hold of him that was Mesne then he should hold the same Tenancy immediately of two Lords which should be inconvenient and the Law will that we rather suffer a mischeife then an inconvenience Littleton so as the rule is regularly true res inter alios acta alteri nocere non debet what thing is acted among some must not hurt an other but with this exception unlesse an inconvenience should follow Coke ibidem So it is a Maxime in the Law that a warranty of a collaterall Ancestor if it descend upon him shall bar the heire as if A. disseise B. of Land and selleth the Land and the Alienee obtaineth a warranty of the Ancestor collaterall to the Disseissee after whose death the warranty discendeth upon the Disseissee the Disseissee by descent of the warranty upon him is barred for ever in Law Doctor and Student l. 2. c. 501. but though they all offended in obtaining of the said collaterall warranty yet such an offence is not to be considered in the Law for the inconvenience that thereupon might ensue for it is holden for an inconvenience as Coke saith Com. 152 b. That any of the Maximes of the Law should be broken though a private man suffer losse for that by infringing of a Maxime not onely a generall prejudice to many but in the end a publick incertainty and confusion would follow lex citius tolerarâ— vult privatum damnum quam publicum malum and Law will sooner suffer a private injury then a publick evil neither in such cases is there any remedy to be had in the Chancery or in conscience for it was resolved in Beverlys case Coke l. 4. f. 124. a. That against an expresse maxime of the common Law no man shall have releife in Chancery for it should be in subversion of a principle or ground of Law Doctor and Student ibidem vide ibidem plura So Ployd 18. b. It is against the Law of nature and the Law of reason to beate the person of any man in any cases yet when a man is mad and of non sanae memoriae and doth much evill a man and his Parents also may take him binde him and beate him with rods and may justify it 22. Ass Pl. 56. And by the Statute of Mar. it is generally prohibited that none shall drive any distresse out of one County into another and yet it is adjudged that if one hold Land of a Mannor in another County that the Lord may distraine and drive the distresse of the Land holden of the Mannor in the County where the Mannor is and that is in avoidance of the inconvenience for it should be a great damage to the Lord if he should not drive the distresse to his owne mannor for the avoidance of which the Law is not offended although the words of the Law be broken M. 1. H. 6. Pl. f. 3. A man priviledged in some Court is sued in London and the Action is actionable no where else yet upon a supersedeas the Court shall surcease Finch Nomot And wee see also that necessity in all Lawes shall be a good excuse and that all Lawes give place to necessity according to the common proverbe necessitas non habet legem necessity hath no Law And therefore in a precipe quod reddat the tenant shall excuse his default by a flood of water and yet every default is abhorred in our Law because it is a contempt of the Court but because by perill of death he could not come the necessity of the chance in such case in regard there was no default in him shall excuse him M. 38. H. 6. 11. So the words of the Law of God may be infringed by necessity without offence to God and therefore in the old Law by the Law of God it was prohibited that none should eate of the shew bread and yet it appeareth that David for necessity of famine did eate the said bread and yet he did not breake the Law as our Saviour Christ declareth in the Gospell so the Apostles of our Saviour did pull the eares of Corne of other persons and did eate them and that for necessity of famine Ploydon f. 19 a. So if a man steale victualls to satisfie his present hunger this is no Felony nor Larceny Stanford because it is for the conservation of life And if diverse be in danger of drowning by the casting away of some Boats or Barge and one of them get to some Planke or on the Beats side to keep him above water and
a Bond or a Deed Coke com 253 b for the Law hath a speciall regard to the safety and liberty of man If one make me swear to surrender my estate unto him and I do so afterwards this is a Disseisin to me 14 Ass pl. 20. One imprisoned untill he maketh an obligation at another place and after he doth so when he is at large it is by duresse of imprisonment 21 E. 4. 28. If I threaten you in one County to make an Obligation of twenty pounds and after I find you in another County and demand the Obligation the Obligation is avoidable because it hath respect to the first threatning Kelleway f. 52. b. vide ibidem 2 marriage procured by duresse to be avoidable If a stranger threaten A. to make a Deed to B. A. shall avoid the Deed by such threatning Coke l. 2. f 9. B. as well as if B. himself had made the threatning but it is no plea without making the Obligee party to the plea. If the hand of any man be drawen by compulsion and the weapon in his hand killeth another it shall not be felony Ployd f. 18. a. Modus conventio vincunt legem Coke com f. H. 41 b. Manner and Covenant overcome the Law As to every Tenant for life or for years by Law are incident three kinds of Estovers House-boot which is twofold aedificandi ardendi Plow-boot estoverium arandi and lastly Hay-boot that is estoverium claudendi and these Estovers must be reasonable and therefore are they caâ—â—ed rationabilia estoveria and those the Lessee may take upon the land without any assignment unless held or restrained by a speciall Covenant for Modus conventio vincunt legem ibidem Coke l. 2. f. 73. b. Though Recoveries and Fines do extinguish all other Rights and Titles yet the Covenants and Conditions shall be saved for modus c. vide ibidem plura in Cromwels case Coke l. 7. f. 28. a. In Maunds case a rent granted to one and his Assignes pro consilio impendendo it may be assigned over by the expresse words of the Grant which granteth it to him and his Assignes though otherwise it could not for modus c. The Law doth not determine to whom the tender shall be made when the parties themselves expresly agree to whom it shall be made Dy. As it is resolved in Goodales case l. 5. f. 97. a. That the payment to the Assignee had not been good because the Heires Executors and Administrators are expresly named and not Assignes as Littleton upon a Mortgage upon condition that he pay to the Feoffee or his Heires the tender ought to be made to the Heir and not to the Executors because the Heir was expresly named Glanvil saith Generaliter est verum quod conventio vincit legem Magna Charta conventio legi dorogat An agreement overcometh and barreth the Law and Ployd f. 29. a. the manner and form of the Gift altereth the Law As if houses let for years be overthrown by tempests and wind the Law will excuse the Lessor in wast but if he had covenanted to repair them and leave them well repaired at the end of the term an action of Covenant will lye against them A Termor did covenant and agree pro se executoribus to repair and maintain the houses and to find principall Timber which is decayed by the default of him or his Executors and dieth and the house is burnt in default of the Executors and it was adjudged â—hat a Writ of Covenant in this case will lye against the Executors and that damages should be recovered of the Goods of the Testator and yet this hapned by casualty Dyer 324. but the reason is Modus c Fulb. l. 2 f. 52. And Dyer 33. The Lessee of a Meadow did covenant and agree to keep and maintain the banks in good repair and the said banks were drowned or overflowen by high water or suddain flood yet the Lessee is bound to repair and maintain them because of his Covenant but according to the opinion of Fitz. and Shelley because the decay of the banks were the act of God he ought to have convenient time to repair them If I be bond to I. S. to entermarry with such a Daughter before such a day and before the day often tender my self to the Daughter of the Obligee to marry her and she refuseth yet I have forfeited my Obligation Perk. f. 146. b. vide ibidem plura Sheep are letten and the Lessee covenanteth to render the poles at the end of the tearm if they dye of Murren he shall answer for them 40 E. 3. 2. Et sic interpretari concordare leges legibus est optimus interpretandi modus And so to expound and to make Lawes to agree together is the best manner of expounding is the generall rule given by Sir Edward Coke when the grounds and authorities of the Law seem to be at difference and variance between themselves Coke l. 8. f. 169. a. and which Mr. Ployden also declareth that Maximes by reason ought to be conferred and compared the one against the other although they do not vary or by reason ought to be discussed what thing is more neer to the Maxime or the mean between the Maximes and what not Ployd f 29 a. Verba fortius acciptuntur contra proferentem Bac. Max. f. 9. words are to be taken strongest against the Speaker which rule as he saith is drawn out of the depth of reason for first it maketh a man watchfull in his own business and grants And secondly it is the Author of much quiet and certainty because it favoureth conveyances executed taking them beneficially for the Grantees and Possessors as also because it maketh an end of many doubts concerning the construction of words for if the intention of the parties should only be picked out every Judge would have a severall sense wheras by this rule they may know the Law more certainly And this rule hath a speciall force in Grants according to the ground Quaelibet concessio forâ—issime contra danatorem interpretanda est Coke com 183. a. As if lands be letten and a rent granted the generall intendment is that an estate for life passeth but if the Habendum limit the same for years or for life or at will the habendum doth qualifie the generall intendment of the Premises and the reason is because every mans grant shall be taken by construction of Law most forcible against himself and the reason thereof given by the Civilians is because the Grantor might have expressed his meaning in more full large and manifest words and therefore when the Grant is incertain and the words of the Grant ambiguous the Grant must be taken most strongly against the Grantor As if a man grant an Annuity out of certain land and he hath no land at the time of the Grant yet the Grant shall charge his person T. 9. H. 6. 12. by Babington And if a Deed
of a Grant be good in parcels and for parcels not that which is for the advantage of the Grantee shall be taken to be good As if a man granteth unto me an annuity provided that it shall not charge his person the Proviso is void and the Grant good 20 E. 4 8. by Townsend 14 H. 4. 30. by Hank And if an annuity be granted pro consilio impendendo though the Grantee be well skilled in divers professions of art yet counsell shall be given in that faculty onely which was intended at the time of the Grant 4. 1. E. 3. 6. If the King grant to a man that he and his Heirs shall be quit of Tax for the lands which they have this is a good Grant though there be no Tax at the time of the Grant 38 H. 6. 10. And so is the Law of Tenths and fifteens ibidem Ployd f. 29. a. If a man maketh a Lease for life and after the decease of Tenant for life that the lands redibus to A. B. in fee it is held a good remainder because it is held for a principle that the Livery of every one shall be taken more strong against him 18 E. 3. f. 28. If a man give land to one haeredibus it shall be a Fee-simple without the word suis and though he doth not give him a Fee-simple expresly yet every mans livery shal be taken strongest against him Ployd f. 18 b.a. If I make a lease for years upon condition that one moneth after he shall have fee he shall have it after the moneth accordingly for the thing shall pass according to the convention more strong against the Donor Ployd ibidem So if I make a lease to two upon condition that if one doth dye within seven years that then after the death of the other it shall remain to a stranger in fee that remainder is good for the reason of the condition to give the estate to privies or strangers is all one in regard that he had first given an estate to which the condition may be annexed for the livery and limitation shall be taken strongest against him that made it ibidem If I give land to one filio suo primogenito and he hath no Son at the time of the gift and after he hath a Son that son shall have the land by way of remainder and yet the remainder was not out of the Lessor neither did it vest at the time of livery but the Law construeth the livery and limitation more strong against the Lessor P. 17 E. 3. f. 29. Ployd vide ibidem plura If two Tenants in Common grant a rent of ten shillings this is severall and the Grantees shall have twenty shillings But if they make a Lease and reserve ten shillings they shall have onely ten shillings between them So an Obligation to pay ten shillings at the feast of our Lord God it is no plea to say that he did pay it but he must shew at what time or else it will be taken that he paid it after the feast for every act shall be taken more strictly against him that made it Noy Max. f. 15. 2 E. 3. p. M f. 140 b. 161. b. A generall pardon ought to be taken more beneficially for the Subject against the King 37 H. 8. f. 21. Coke l. 4. Vaughans case If I. S. submit himselfe to arbitrement of all Actions and Suites between him and I D. and I. N. it shall be intended collective of joynt Actions and distributive of severall Actions also because the words shall be taken stronger against him that speaketh 2. R. 3. 18. 21. H. 7. 29. If I grant 10 l. rent to Baron and Feme and if the Baron dye the Feme shall have three pound rent it shall be strongest taken against me the grantor for three pounds addition to the ten 8. Ass Pl. 10. So if I sow all my Land with Corne and let it for yeares the Corne passeth to the Lessee if I except it not So if I have a free Warren in my owne Land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren discharged and extracted during the Lease 8. A. 7 32. H. 6. If I. give Lands to I. S. and his heires males this is a good Fee-simple and the words males is void Bac. Max. f. 12. vide ibidem plura Yet this rule also faileth when another which the Law holdeth worthier cometh in place and which is of more equity and humanity It is a rule in the Civill Law valeant eo modo quo valere possunt and at the Common Law Benignae faciendae sunt interpretationes chartarum propter simplicitatem laicorum ut res magis valeat quam pereat Coke com f. 30 b. The interpretations of Deeds and charters because of the simplicity of the people are favorably to be made that the thing may rather stand and subsist then fall and perish and let all things stand by the same meanes they may stand And therefore if I give Lands to I. S. and his heires rendring five pounds yearly to I. D. and his heires this implyeth a condition to me that am the grantor Littleton yet were it a stronger exposition against me to say that the limitation shall be void and the Feoffment absolute So if a man make a lease to A. for yeares and after by his Deed the Lessor voluit quod haberet teneret terram pro termino vitae willeth that he should have and hold the Land for terme of his life this is adjudged by the word volo to be a good confirmation for life Coke com f. 301. b. Though it were stronger to say those words are void because they are not proper words of confirmation So if the Disseisor granteth a rent to the Disseisee and he by his Deed granteth it over and after doth re-enter in this case one and the same words doe amount to a grant and a confirmation So if the Disseisor maketh a Lease for life or in taile the remainder to the Disseisse in fee and the Disseissor by his Deed granteth over the remainder and the particular tenant atturneth the Disseissee shall not enter upon the tenant for life or in taile for then he should avoid his own grant which amounteth to a grant of the estates and a confirmation also ne pereat Coke ibidem 302. So if A enfeoffeth another upon condition that he and his heires shall render to a stranger and his heires a yearely rent of twenty shillings although this reservation be meerly void for that no estate moveth from the stranger and that he is not party to the Deed and therefore can be no rent yet shall it be taken for a penalty or for an annuall summ in grosse so as if they will not pay it according to the forme of the Indenture they shall loose the Land by the entry of the Feoffor and his heires which is to be observed that
Execution by Elegit or Fieri facias because the death of the Defendant is the Act of God which prejudiceth no man Nunquam prospere succedunt res humaâ—ae ubi negliguntur res divinae Cok. Com. fo 54 b. humane affaires never succeed well where divine rites are neglected And therefore doth that great Legist prescribe these Rules to the Students of the Law for their dayly practice Sex horas somno totidem des legibus aequis Quatuor orabis des epulisque â—uas Quod super est ultra sacris largire Camaenis To sleep six hours allot to the Laws twice three Four to your prayers two to your Feasts may be And what remains give to the Muse Divine Sect. 2. IN the next place the art of Grammer is to be ranked which amongst the Liberall Siences hath the Precedency for it is Janua omnium artium the portall by which we enter into the knowledge of all Arts and by which we communicate our selves and studies to others hence proceede these rules and maximes Ignoratis terminis ignoratur ars Cok. Com. 177. a. As in Schoole Divinity Civill Law Logick and other Arts there are words of Art which are more significant then Grammaticall so are there in our Law termes drawn from the Legall French which are more apt and significant to expresse the sense of our Lawes then any other Which words of Art being not conceived that Art cannot be comprehended Whence he inferreth that the significations of words in all Arts and Sciences are necessary which Mr. Littleton in his Tenures ordinarily observeth for certainly names which are instituted and imposed according to the rationall Analogy with things by wise understanding men are as Plato calleth them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 instructive instruments by which we are guided and directed to the knowledg of the thing And therefore in our discourse and disputation this ever is to be observed principium in omni re disputatione est nomen the words are first to be considered Cok. Com. 68. a. 2. Loquendum ut vulgus Coke l. 4. fo 46. a. words shall be taken according to their vulgar and ordinary construction as though a person attainted be a person convict and more Yet in the Statute of 25 E. 3. c. 2. It is said that an attaint by virdict is taken as convict by virdict so also it is taken 3. H. 7. c. 1. and oftentimes in common speech the person convict is termed Attaint for we are to speak as the people use to speak a grant of one hundred Acres of Land in such a Feild and sixty in such a Feild and twenty Acres of meadow in such a Meadow the Acres shall be taken as they are known by estimation But if I have a Close by estimation twenty Acres and by the Statute eighteene if I grant ten of these Acres he shall have them according to the measure of the Statute Popham fol. 191. And therefore saith Ployd fo 169. It is the part of Judges to know the common Language of the people and to adjudge of those onely according to the common course For he that taketh a Lease for Lands in the North Country called a tack and in Lancashire it is called a firme-holte and in Essex a Week and if he have taken it by these words used in that Country there is no reason that he should loose his Farme because he hath used no other Language then is used in his own Country But the Judge ought to search and know the sense of these words and shall judge them according to the common usage otherwise he shall make great disturbance and confusion in the Common Wealth ib. for verba valent usu sicut nummi and Cok. l. 6. fol. 64. b. concludeth that it is well said in Hills and Granges Case 170. It is the office of Judges to take and expound the words which the common people use to express their intent according to their intent and not according to the true definition vide ibidem plura Sr. Moyle Finches Case and so Coke lib. 7. fol. 11. b. Calvins Case whereas diverse books and acts speake of the Leagiance of England all these and others speaking breefly in a vulgar manner and not pleading are to be understood of the Legiance due from the people of England to the King and therefore loquendum ut vulgus sed sentiendum ut docti for no man will affirme that England it selfe taking it for the continent thereof doth owe any legiance and faith or that any allegiance or faith should be due to that But it manifestly appeareth that the Legiance and faith of the Subject is proprium quarto modo to the King ibidem 3. Ad proximum antecedens fiat relatio Dyer fo 14. b. It is a rule in the Grammar that when a thing is dubious and may be referred to a double intent let the relation be to the next Antecedent As the Condition of the Obligation for marriage money was That if the wife dye before Michaelmas without Issue dyed adjudged the Obligation was void for then living relates to the first Antecedent that is Michaelmas and not to the death of the woman ibidem Dyer fo 46 b. A man was endicted of Felony per nomâ—n I. S. de in C m. pre serviens W. B. in eodem Com. Yeoman and for defect of a sufficient addition to I.S. he was discharged upon the Enditement for Yeoman ought to be referred to the master as the next Antecedent and not to I.S. and servant is not a sufficient addition 9. E. 4. So one Sibylla Batersby nuper de T. in Comitatu Ebor. uxor Johanis Batersby nuper Spinster was endited of Felony and murther and for defect of the addition she was discharged for Spinster being an indifferent addition for man or woman for in Norfolke there are diverse men which are worsted spinsters must be referred to Johanis Batersby the next Antecedent Tenant for life the Remaindâ—r to B. in Tayle the Remainder to C. in eadem forma this is a good estate Tayle for idem refertur proximo antecedenti Cok. Com. fo 20. b. Ad proximum antecedens fiat relatio nisi impediatur sententia Cok. l. 2. fol. 71 a. Sr. Cromwells Case and Dyer fo 13 b. although the rule be true that the relation for the most part ought to be ad proximum antecedens yet many times if it be hindred by the sense and meaning it is otherwise for sensus est anima legis Cok l. 5. f 2 sense is the soul of the Law and hath a speciall sway and rule in all Cases so a man is bound to abide the award of I. S. and he awards that the one party shall pay before such a feast ten pound to another and that then he shall make him a release Tunc shall not be referred to the Feast but to the time of the payments cleerly So I.S. bargaineth and selleth his Land to I N. for ten pound predictus Johanes Covenanteth
to deliver the Evidences of the Land it shall be understood of the first Iohanes S. the vendor who by common intendment hath the Evidences so a man granteth to one a pention that I. B. had donec sibi provisum fuerit de competenti beneficio this word sibi shall be referred to the grantee and not to I. B. so in a cui vita brought by a Feme the Writ is cui ipsa in vita contradicere non potest the word shall not be referred to the next antecedent ipsa but to the husband otherwise the sense should be imperfect Dyer Ibidem f. 15. b. So Dyer f. 46. b. I. G. was indited before the Coronor of the death of Emelin Gager his wife and the Inditement was that the said Emelin was in pace domini regis quousque ante dictus Iohanes Gager vir prefate Emelin Gager de Hambridge predicta in commitatu predicto Yeoman and the Inditement was held good and that there was no defect in the addition for the word Yeoman could not bee addition to the Feme though the next antecedent but must necessarily be referred to the husband according to the sense and meaning A Writ brought of rescuing goods and denying to pay towle contra pacem shall bee referred to the rescouse and not to the towle 30. E. 3. 15. because in it consisted the breach of the peace Coke l. 8. f. 119. Adam de Clidrow brought a precipe against Iohn de Clidrow and the Writ was quod juste c. reddat manerium de Wincomb duas carrucatas terre cum pertinentiis in Clidrow in this case the Village of Clidrow shall not relate to the Mannor because it wanteth not it for a Mannor may be demanded without mention made that it lyeth in any Village but cum pertinentiis though it come after the Village relateth to the Mannor because it wanteth it Quia verba posteriora propter certitudinem addita ad priora quae certitudine indigent sunt referenda 6. E. 3. 12. Impersonalitas non concludit nec ligat Cok. com 352. b impersonals doe not conclude or binde and therefore every estopple ought to bee a precise affirmation of that which maketh the estopple and not to be spoken impersonally as if it bee said ut dicitur because impersonality doth not conclude any man for impersonalitas dicitur quasi sine parsona ibidem Negatio destruit negationem ambo faciunt affirmationem Coke Com. f. 146. b. according to Grammaticall construction a double negative maketh an affirmative a distresse was pro infecto servicio the Defendant saith quod non fuit infectum and ruled as good as if he had said it was done but Grammaticall curiosity shall not prevaile in like cases to avoide a Grant as upon a Rent charge issuing out of Land the Proviso was quod non presens scriptum nec aliquid in eo specificatum non aliqualiter se extendat ad onerandam personam meam Nec non in Grammatical construction doth make an affirmation but the Law that principally respecteth the substance doth judge the Proviso to be a negative according to the intent of the parties so as the sense of those words according to the construction of the Law is provided that this present writing nor any thing therein specified shall any way extend to charge my person Coke Com. f. 146. a. b. so ibidem f. 223. b. If Lands bee given in taile sub conditione quod ipse nec heredes sui non alienarent that he nor his heires shall not alien in legall construction shall bee taken negatively notwithstanding the double negative In disjunctivis sufficit alterum esse verum Coke lib. 10. f. 59. a. The Bishop of Sarums case whereas the avowant did avow that the Office supervisoris omnium maneriorum suorum had been granted to such person or persons as it pleased the Bishop and the Defendant pleaded in the negative that the said office had not been granted but for the life of one that exception was not allowed because in that the advowant did not alledg that the said office had been granted to diverse but onely to such person or persons and in disjunctives it is sufficient that one of them be true ibidem So Coke Com. f. 225. a If the condition bee in the disjunctive it is sufficient to obey either of them according to the rule Si plures conditiones ascriptae fuâ—rint donationi divisim cuilibet vel alteri eorum satis est obtemperare in disjunctivis sufficit alterum esse verum If many coditions bee annexed to a guift severally or disjunctively it is sufficient to obey every one or any one in disjunctives it is sufficient if either of them be true Si plures conditiones ascriptae sunt donationi conjunctim omnibus est parendum ad veritatem copulatiâ—vam requiritur quod utraque pars sit vera Bracton lib. 2 f. 19 Coke com f. 225. a. If many conditions be joyntly annexed to a gift all of them must be obeyed and to a copulative truth it is required that every part be true in a condition consisting of diverse parts in the conjunctive both parts must bee performed as if a man give Lands in taile upon condition that if Tenant in Taile or his heires alien in fee or in taile c. and also if all the issues comming of tenant in taile bee dead without issue that then it shall bee lawfull for the Donor and his heires to enter if tenant in taile in this case or his heires make any discontinuance he in the reversion and his heires may enter after the estate taile is determined for want of issue for the reason abovesaid But if the condition or limitation bee both in the conjunctive and disjunctive what then as a Lease to the husband and wife for 21 yeares if the husband wife or any child betweene them shall so long live and the wife dieth without issue the Lease shall continue during the life of the husband for the disjunctive referreth to the whole and disjoyneth not onely the latter part as to the child but also to the Baron and feme And so it is that if an use be limitted to certaine persons until A. shall come from beyond the Seas and attain to his ful age or die if he doe come from beyond the Seas or attaine to his full age the use doth cease Coke ibidem f. 225. e. Grammatica falsa non vitiat instrumentum Reg. I.C. decius 3. f. 10. mala grammatica non vitiat cartam sensus abreviationis accipiendus est ut concessio non sit inanis Coke l. 9. f. 48. a. false latine doth not destroy a Deed or a Charter and the sense of dashes or abreviations is so to bee taken that the grant be not voide as if the King grant tat il mannur of C. and D. and in truth there is but one Mannor then those abreviations shall bee taken in the singular number totum illud
for the punishment of fine and imprisonment c. but that it specially shall be limitted to such onely as did offend only in not well executing and using the said faculty of Physike for a generall clâ—â—â—â— is not to bee extended to those things are specially comprehended so 34. Eliz. f. 120. ubi A. seised of the mannor of Stable in O. in the county of S in fee and also of other lands in the said O. in fee suffereth a common recovery of all and declareth the uses by Indenture that the recoveror shall stand seised of all the lands and tenements in O. to the use of him and his wife and the heires of his body and dieth and after his death the wife entreth into the said Mannor by form of the said generall wordes but it was adjudged that those generall wordâ— did not extend to the Mannor which was specially named Coke l. 4. f. 8â— b. Nokes case clausula generalis non refertur ad expressa a generall clause is not referred to those things are expressed as where the Assignee of a Lease shall have a Writ of Covenant upon those wordes demise and grant yet if there be an expresse covenant that the Lessee shall enjoy it without eviction of the Lessor or any claiming under him this expresse Covenant qualifieth the generallity of the covenant in Law and restraineth it by mutuall consent of both parties that it shall not extend to the assignee Clausula generalis non porrigitur ad ea quae antea sunt specialiter comprehensa Coke l. 4 131. l. 4. when the deed at the first containeth speciall wordes and then concludeth in words generall both the wordes as well generall as speciall shall stand as Lands given to one and the heires of his body Habendum to him and his heires hee hath an estate taile and a fee simple expectant for as Dier f. 56. b A deed by wordes subsequent may bee qualified and abridged but not destroyed Dolosus versatur in universalibus generalibus Coke l. 3. f. 8. a. Twins case it is one of the Ensignes of fraude in a Deed of gift if the gift is generall without the exceptions of his apparell or any thing of necessity for it is commonly said that the fraudulent is conversant in generalls Coke l. 3. f. 57. b. Specots case A Bishop ought not to shew a generall cause for the refusall of a Clark as that he is criminosus or non idoneus for they are too generall and the fraudulent is exercised in generalls and therefore so incertaine that no issue can be taken of them as 2. E. 3. f. 6. The heire ought to alledge some certaine cause of refusall whence issue may be taken Generalia sunt praeponenda singularibus it is a rule in the Register that in a Writ the generall shall bee put in demand or plaint before the speciall as the Mesuage before lands the Land before Meadow Meadow before Pasture and Pasture before Wood and Wood before Juncary F. a. b. f. 2. E. Ex verbo generali aliquid excipitur Coke com f. 47. a. An exception is part of the thing granted and in esse as exceptis salvo praeter and out of a generall a part may be excepted as out of a Mannor an acre but not a part out of a certainty as out of 20 Acres one Ployd f. 361. a. A Lease of all my Lands in D. except white acre is void for white acre and a gift of all my horses except my black horse is void for my black horse Coke l. 10. f. 101. b. quando verba statuti sunt specialia ratio autem generalis generaliter flatutum est intelligendum where the words of a statute are speciall and the reason generall the statute is generally to be understood as the reason of the statute of 23 H. 6. whereby it was ordeined that no Sheriff should take any obligation by colour of their office but onely to themselves and upon condition that the Prisoners appeare at the day contained in the writ was for the avoyding of extortion and oppression and therefore is to receive a benigne and favourable construction and that in equity not only a bond but an assumpsit is within the reason of that statute and so was it adjudged 27. Eliz. Trin. in the Kings Bench betweene Danhigh and Hothcot that if a Sheriff or Goaler for ease or enlargement of any who is in his custody doth take a promise of him to save him harmelesse that though the statute doth onely speake of an obligation yet it is in equall mischiefe otherwise as Wray chiefe Justice said the statute should serve for little or nothing Multa transeunt cum universitate quae per se non transeunt Coke com f. 142. a. If a man seised of land as heire of the part of his mother make a gift in taile or a Lease for life reserving a rent the heire of the part of the Mother shall have the reversion and the rent also as incident thereunto for many things passe with the generallity which by themselves doe not pass so if a man hath a rent-seck of the part of his mother and the Tenant of the Land grant a distresse to him and his heires and the Grantee dieth the distresse shall goe with the rent to the heire of part of the Mother as incident and appertenant to the rent for now is the rent-seck become a rent charge Singulare distributive sumptum e aquat plurali Dier 328. b. a singular distributively taken equalleth a plurall as in an assise the Plaint is of two Acres of Land the Tenant pleads two barrs severall for the two Acres at large and the Plaintiffe makes two severall titles at large to wit for every acre one the Tenant pleades let the assise come upon the title in the singular number and the assise found one title for the Plaintiff and the other for the Defendant against the Plaintiff and judgement was given that the Plaintiffe should recover for one Acre and be barred for the other Coke l. 10. Br. Lifiels case A Lease is for one yeare and that if they agree the Lessee shall have the Land for three yeares rendring during the said terme ten pounds yearely this reservation goeth to both termes Propria res est quae solius est sive uni soli convenit Tholoss Syntag. lib. 5. c. 1. A propriety is that which is one mans onely and appertaineth onely to one man Ploid f. 308. b God made man the Soveraigne over all living creatures and gave the rule of them all to man Terram dâ—dit filiis hominum and so men by the endowment of God were made Lords of the earth and possessors of all things in the earth but how much land or things upon the earth one man shall have and how much another God hath leased to man by lawes by them to bee made and provided and by such lawes in every Realme and Country they are provided and divided and every man
without an originall is voide Kel f. 19. b. A remainder is limited to the King and before the inrolement of the deed the King granteth it over and then the deed is inrolled this will not make the grant good Coke l. 3. f. 29. An executor assigneth auditors to one who was accountant to the testator and his auditors find him in arrearages the Action of debt shall be brought in the Detinet onely and hath respect to the beginning 11. H. 6. If I have a villaine for yeares as executor and the villaine purchaseth land the executor entreth the land shall be to the use of the testator and assets in his hands because the villaine which was the cause of it was to such use Ployd f. 292. a. Chap-mans case Causa origo est materia negotii Cok l. 1. Shellies case f. 99. b. vide As if a servant hath an intent to kill his Master before the execution of his intent departeth out of his service being out of his service executeth his intent and killeth him which was his Master it is petit treason for the execution respects the originall cause which was the malice conceived when he was his servant vide ibidem plura I. S. buildeth a shop on the wast of a Mannor of which the Queene was seis'd the Queen granteth the Mannor to the Earle of Leicester and he never entreth nor taketh rent I. S. dieth and his sonne entreth there is no descent against the patentee because there was no disseisin against the Queene Dyer 266. b. Yet when the law giveth power and authority to doe any thing Exception the law adjudgeth of the thing by the act subsequent not precedent Coke l. 8. f. 146. b. As the law giveth me power or license to enter into a common Hostlery or Taverne or to the Lord to distraine or to the owner of the soile to distrain for damage feasant or to him in the reversion to view if wast be made and to the commoner to enter into the land to see his beasts but if he that entreth into the Hostlery or Tavern maketh trespass or if the Lord that distraineth for rent or damage fesant beat or slay the distress or if he that entreth to see wast breaketh the house or remaineth there an whole night or the commoner cut downe trees in these cases the Law shall judge by act subsequent that they entred to that purpose and shall be trespassors from the beginning for acta exteriora indicant intoriora secreta the outward acts shew the inward secrets and with what minde and with what intent he did enter So if a purveyor take my beasts for the hostle of the King by force of his commission it is legall but if he sell them in Market then the first taking is injurious Coke l. 9. f. 11. a. Tenant in taile hath issue two daughters and dieth and the elder entreth into the whole and after entry maketh a feoffment with warranty which is a lineall warranty for the one and collaterall for the other the law judgeth by the act subsequent that the entry was not generall for them both but that it was onely for her selfe and that it shall be a warranty to commence by disseisin for the one moiety Quod initio vitiosum est tractu temporis non convalescet Reg. I. Civ Quod initio non valet tractu temporis non convalescet Coke com f. 35. a. That which in the beginning is vicious or invalid cannot by tract of time bee made good or valid as tenant for life of a carve of land the reversion to the father in fee the son and heire apparent endoweth his wife of this carve by the assent of the father tenant for life dieth the husband dieth this is no good endowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a free-hold whereof hee could not have endowed his own wife Ployd f. 432. b. A. possessed of an horse selleth the horse upon condition that hee shall pay him at Christmas forty shillings for it and before the said feast he selleth the horse to another and at the feast the first buyer faileth of payment whereupon A. reseiseth the horse yet the second buyer shall not have him because at the time of the second contract A. had no interest nor property nor possession of the horse but onely a condition which was not sufficient to make the contract good A. seised of Lands in see maketh a lease for twenty yeares rendring rent to begin presently and the same day he maketh a Lease to another for the same terme the second lease is utterly void so as if the first Lessee surrendreth his terme to the Lessor or loseth the same by breach of condition or forfeiteth it by making a feoffment upon entry of the Lessor the second Lessee shall not have his terme because the Lessor at the making of the second lease had nothing in him but the reversion ibidem A feoffement to the use of the husband for life the remainder to I. S. the remainder to the wife for her joynture this is not a joynture to bar dower because it did not take effect immediately after the death of her husband Hut Rep. f. 50. An infant or a married woman makes a will and publisheth the same and afterwards dieth being of full age or sole notwithstanding this both Wills are void 10. Eliz. 344. Noy Max. f. 4. A lease for life the remainder to the Major and commonalty of B. whereas there is no such it is void though the King doth create such a corporation during the particular estate so a remainder limited to John the son of I. S. having no such son and afterwards a son is borne to him whose name is John during the particular estate it is void Doder Que malo inchoata sunt principio vix bono peraguntur fine Those things which have a bad beginning can hardly have a good end Coke l. 11. f. 78. As a man seised of Lands in fee by deed upon good consideration granteth the Land after his death to the Queene her heires and successors such grant is not made good by the generall words of the act of 18. Eliz. because it was void in the beginning and with it accordeth 38. H. 6. f. 33. The Abbeffe of Sions case and the Earle of Leicesters case Ployd f. 4000. a stronger case then it vide ibidem plura Magdalen Colledges case Coke l. 4. f. 90. a. If a son and heir apparent of a Baron reteyne a Chaplaine and giveth to him his letters under signe and seale and after his father dieth and this Chaplaine purchaseth a dispensation this retainer and those letters will not serve him in that they were not availeable at the beginning vide ibid. Dâ—uries case Coke câ—m f. 352 b. If a fine be levied without any originall it is voidable but not void but if an originall be brought and a retraxii
entred and after that a concord is made or a fine levied this is void in respect the verity appeareth on record for where the verity is apparent in the record the adverse party shall not be estopped to take advantage of the truth for he cannot be estopped to alleage the truth an impropriation is made after the death of the Incumbent to a Bishop and his successors the Bishop by indenture demiseth the parsonage for forty yeares to begin after the death of the incumbent the Deane and Chapter confirmeth it the incumbent dieth this demise shall not conclude because it appeareth that he had nothing in the appropriation till after the death of the incumbent ibid. Coke l. 10 f. 62. a. If a Bishop maketh a Lease of Lands for four lives and one of them dieth in his life so as now there be but three and after he dieth yet it shall not bind the successor for those things which have a bad beginning can scarcely be brought to a good end Ployd f. 344. a. If a Feme covert giveth Lands devisable by the common law by will and publish it and after the Baron dieth after the wife dieth the devise is void because the foundation is founded on the first parts to wit the making and publiâ—hing which are void though at the time of her death she was discovert but the death without a good beginning giveth no effect so if an infant maketh a Will and publish it and after is at full age it is not of effect causa qua supra ibidem Ployd f. 344. a. If one disseise one of two acres in Dale and the disseisee releaseth to the disseisor all his right he haâ—h in all the lands in Dale and delivereth the release as an escrowl to be delivered to the disseisor as his deed the last day of May before that time the disseisor diseiseth him of another acre in D. and after the deed is delivered to the disseisor the last day of May the right which hee hath in the third acre shall not pass for the beginning and the intent is to be respected in all acts So if one have a reversion in fee of two acres which I. S. holdeth for life and granteth to another the reversion of all the acres that I. S. holdeth for life and then the grantor purchaseth the reversion of another acre I. S. holdeth for life and after I. S. attorneth to the grantee for all the three acres the third acre shall not pass for the reason abovesaid If a man devise the manner of Dale or white acre Excepton and have nothing in it at the time of making the Will and after purchaseth it there it shall pass to the devisee for it shall be taken that his intent was to purchase it Ployd f. 344. a. If I let B. acre by deed indented in which I have nothing and I purchase it afterwardes it is a good Lease 8. f. 3. 24. F. n. b. f. 73. c. If a man be distrained in any liberty and he sue a replevin there by plaint or by Writ and after hanging the plaint in the Liberty he be distrained again for the same cause by the same person who distrained he shall not have a Writ of recaption because the plaint is not holden before the Sheriff c. nor before the Justices but if the plaint bee removed by pone and out of the Liberty before the Justices there the party shall have a Writ of recaption as well for the reprisall before the Writ as for the reprisall after whereas otherwise before the removal a recaption did not lie upon the reprisall of a distress in case a replevin was sued in a Mannor or Liberty and not in the County Coke l. 8. f. 78. a. Tenant in taile is the remainder in taile of the grant of the King if tenant in taile acknowledgeth a fine or suffereth a common recovery it shall not barre the issues because the reversion was in the King but if after the reversion be granted and put out of the crowne the fine shall bar the issues Coke com f. 14. a. Quod prius est dignius est qui pâ—ior est tempore potior est jure Eract l. 2. c. 10. and therefore among the males the eldest brother and his posterity descending from him shall inherit before any yonger brother because Littleton saith he is most worthy of blood and Bracton Siquis plures filios habuerit jus proprietatis primo descendit ad primogenitum eo quod inventus est primo in rerum natura whosoever hath many sons the right of propriety shall descend to the first borne in that hee first is found in the nature of things and in King Alfreds time Knights fees descended to the eldest son Glanvill l. 7. c. 3. vide ibidem plura Coke l. 4. Druties case f. 90. a. Though a Countess may have as many â—haplaines as she will by the Common Law yet by the statute can shee have but two capable of dispensation and reason requireth that he that hath served longest should be first preferred for he that is the former in time is the more worthy in Law Ployd f. 259. a. D. Hales case Baron and Feme are joyntenants of a Lease for two yeares there are no moieties between them but every of them hath the whole and if the husband charge the Land shee after her death shall avoid it 7. H. 6. f. 1. for she is remitted to the terme and is in upon a title parameunt the grant So if a man alien trees growing upon the ground entailed or in land which he hath in right of his wife and dieth before they are cut downe the alienee shall not fell them because the issue in taile is in upon a title paramount the alienâ—tion P. 18. E. 4. f. 5. 14. H. 4. f. 32. The Lord may take his Ward which is an apprentice out of the possession of his master because his title to his body accrueth in respect of his signiory which is more ancient than his apprentiship Ployd ibidem When one hath a presentment to a Church two turnes and another a third turne if he that hath the third turne bring a â—uare impedit he shall not begin with his owne turne first but with the other two turnes Vnumquodque principior um est sibimetipsi fides cum ea negantibus non est disputandum quia ad principia non est ratio Fortescue de laudibus legum Angl. f. 11. Dyer 271. a. There are principles of being so all causes are the principles of their effects and there are principles of knowledge so a proposition by which as the more knowen another is conceived is a principle and of this principle it is said That every principle is of credit to it selfe and that we ought not to dispute against denyers of principles As arrearages of Rent-charge being due to a woman sole and after shee taketh an husband and then another day of payment
amercement is pardoned vide ibidem The husband and wife make a lease by Deed the husband dyeth the wife accepteth the rent if the Lessee lose the Deed of the Lease the wife shall avoid it 15. E. 4. 17. Coke l. 1. f. 2. Buchuâ—sts case If the Feoffor make a Feoffment with warranty the Feoffee shall not have the Charters unlesse by expresse grant but the Feoffor shall have all the Charters and Evidences which are materiall for the maintenance of the title of the Land and upon which he may maintain his warranty paramount but if the warranty be determined he shall have them no longer Ployd f. 382. a. Nevills case The King grants to two for their lives and the life of the survivor of them the Sheriff-wike of Chester and one of them was attainted of high Treason all the Office was forfeited because the Office was entire and could not be severed ibidem The King granteth the Office of the keeper of a Parke to two and the one faileth in discharge of his duty the whole fee shall determine so it is if an annuity be granted to two for Counsell and one of them refuse because the Office and Grant is entire and cannot be severed and the cause ceasing but in one the whole annuity shall cease Exception Dyer 320. Pl. 13. An Arbitrement was between two of diverse things and among others there was one article that one party should have yearly for the space of six yeares twenty shillings toward the keeping and honest education of A. B. and A. B. dyeth before the fourth year of the sixth yeare yet the payment of the 20 s. shall not cease during the six years which is a certaine terme and is a duty to the party himselfe towards the finding of A. B. Dier 141. Pl. 44. King Ed. 6. granteth to the Lady Mary his Sister the Mannor of D. for terme of her life according to the Tenor and effect of the last Will of H. 8. which was that shee should have it so long as she was unmarried afterwards she granted a rent charge out of that Mannor after which grant K. E. dieth by whose death the reversion came to her being Queene and afterwards shee married Philip King c. and it was doubted whether the rent charge should remaine or no. Davis 3. a. b. In ancient times a great part of tenements were holden of their Lords by Socage which was that the Tenants ought to come with their sokes by certaine daies by the yeare to plow and sow the demesne of the Lords and because such workes were made for the livelyhood and sustenance of their Lords they were quitted of all other services and after such services were changed into monies by consent of the Lords though the Lords did alien their demesnes and had no lands to plow or sow yet payed they their rents yearely to the Lords so the Church and religious houses after the procuration of Victualls was reduced to a certaine sum did pay it to the Ordinary yearely though he made no visitation so as the rule The cause ceasing the effect also ceased held not in those cases So Coke l. 4. in Capels case it was resolved that where a man held certaine land by rent for Castle-guard though the Castle was ruined or decayed yet the rent remained and pro doth not import a condition as in the case of an annuity granted pro consilio impendendo but a full and perpetuall recompence and satisfaction Vide Davis plura ibidem In jure non remota sed proxima causa spectatur Bacon Max. f. 1. 2. In the Law the next and not the remote cause is respected For it were infinite for the law to judge of the cause of causes and therefore judgeth of acts by the immediate and next cause as Bar. Empsons case f. 2. An annuity is granted pro consitio seu impendendo and the grantee committeth treason whereby hee is imprisoned that the grantor cannot come unto him for counsell yet the annuity is not determined by this non fesans for the law looketh not on the remote cause to wit the grantors offence which was the cause of the imprisonment but excuseth it because his not giving of counsell was compulsory and not voluntary in regard of the imprisonment which was the immediate cause So if a parson maketh a Lease and be deprived or resigneth the successors shall avoid the Lease for the law regardeth not the cause of the deprivation or the resignation which is the act of the party but the act of the Ordinary in the admission of the new incumbent 2. H. 4. 3. 26. H. 8. 2. A foeffment in fee upon condition that the Feoffee shall enfeoff over and if the feoffee bee disseised and a dissent case and then the feoffee bindeth himselfe in a statute which statute is discharged before the recovery of the Land this is no breach of the condition because the land was never lyable to the statute and the possibility which was the remote cause that it should bee lyable upon the recovery the law doth not respect Coke l. 2. Winningtons case This rule faileth in covenous act where the law taketh heed to the corrupt beginning and also in criminall acts where the law principally regardeth the first motive vide ibidem plura Nihil magis consentaneum est us iisdem modis res dissolvatur quibus constituitur Reg. I.C. and Bracton Nihil tam conveniens est naturali aequitati unumquodque dissalvi eo ligamine quo ligatum est Cok. l. 2. f. 53. a. There is nothing more agreeing to naturall equity then that every thing should be dissolved by the same meanes it was bound As no estate can be vested in the King without matter of record so no estate can be devested out of him without matter of record Ployd f. 553. Walsinghams case and 180. Nevils case 12. H. 7. and many other bookes for nothing is so convenient to naturall equity then that every thing should be dissolved by the same band it was tied and Coke l. 4. f. 57. b. In case of attainder and office the King is entitled by double matter of record and therefore the party grieved ought to avoid it by double matter of record and not by single travers or Monstrans de droit but is driven to his petition vide ibidem plura But when a man avoideth the Kings title by as high a matter of record as the King claimeth though the King be entitled by double matter of Record he may have it by way of Plea as one is attainted of treason by Parliament an office findeth his lands by which the King seiseth them the party may alledge restitution by Parliament and a repeale of the former Act 4. H. 7. 7. b. Finch Nomot 12. Coke l. 5. f. 26. a. Indentures being made for declaring of the uses of a subsequent fine recovery or other assurance to certaine persons and within a certaine time and to certaine uses are but
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
the obligee to sue the heire Executors or Administrators of the obligor and if the executors have assets in their hands yet the obligee may sue the heire if he will because he hath bound the heire as well as himselfe neither can the heire plead that there is assets in the hands of the executors day of the writ purchased as heretofore in some ancient bookes it hath beene done but he must pleade rien by descent 10. H. 7. f. 8. Ployd f. 440. Davis case For now the law is changed and it is accounted his owne debt and debt will lie against the heire of the heire to many generations as Dier affirmeth f. 868. albeit of this Mr. Ployden maketh a doubt but his plea that he had nothing at the day of the writ purchased nor ever after is good for if he before aliened the assets he is discharged of the debt Popham f. 151. But if the heire doth not confesse the Action and shew the certainty of the assets but pleadeth rien by descent is condemned by default of answer the Plaintiff shall have execution of his other Land or of his goods or of his body by capias ad satisfaciendum as he might have had for the debt of the heire himselfe if he had made the obligation vide 21. E. 3. f. 9. ibidem plura and Coke l. 3. Sir William Herberts case where the case is upon a Scire facias against the heire But otherwise if the executor in debt pleadeth rien entre mains c. and is found against him nothing shall bee put in execution but the goods of the dead because the debt is not the debt of the executor but of the testator and is charged in anothers right and hath the goods in anothers right whereas when the heire denieth assets c. and it is found that he hath assets the debt of his Ancestor is become his debt in respect of the assets which he hath in his owne right and so the property which he hath in his own right of the land maketh the debt his own proper debt and for that reason the writ shall be in the debet and detinet and the Plaintiff may have execution by elegit of the moiety of all his Lands as a fieri facias of his goods Ployd ibidem f. 441. But in Popham f. 151. it is said by Iones and Crew that a generall judgement shall be given against the heire if he doth plead falsly that he hath no assets and not upon a nihil dicit Haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeter quam d ebita regis tantum Flet a. l. 2. c 55. An heire is not bound in England to pay the debt of his Ancestor unlesse it be the debts of the King Coke com f. 386. a As if a man bind himselfe by warranty and bindeth not his heire they are not bound for he must say Ego haeâ—edes mei warrantiabimus I and my heires will warrant ibidem Coke com 144 b. If a rent charge be granted to one and his heires he shall not have a writ of Annuity against the heire of the grantor albeit he hath assets unlesse the grant be for him and his heires And the heire by the grant of an Annuity by the Ancestor shall not be bound unlesse hee have assets And it is a Maxime at the common law that the heire shall never be bound to any expresse warranty but where the Ancestor was bound by the same warranty for if the Ancestor be not bound it cannot descend upon the heire as if a man maketh a feoffement in fee and bindeth his heirs to warranty this is a void warranty because the Ancestor himselfe was not bound as also if a man bind his heirs to pay a sum of money this is void Coke com f. 386. a. Exception Customary inheritances shall not be assets to charge the heire in an Action of debt upon an obligation made by his Ancestors although he bind him and his heires And for the same reason issue in taile shall never avoid things done by his Ancestor but such things which are or may be to his disadvantage and not for the benefit of the issue as T 44. E. 5. f. 21. Where tenant in taile was upon a defeasible title and to have a release of right of him that had right he granted to him a Rent-charge of twenty pound and that the charge should be levied upon the issue in taile and because the rent was for the release of right and the issue had benefit by it it was adjudged that the issue shall not avoid the grant and 46. E. 3. f. 4. If Lands be given in taile so as the Donee may alien for the profit of his issue that is a good condition or power limited to him And so if tenant in taile suffer a common recovery in which he is vouched and hath recompence the issue shall be bound and so if he alien with warranty and leaveth assets to his issue the issue shall not avoid the warranty because it is not to his disadvantage Ployd f. 437. b. in Smiths case vide Semper praesumitur pro legitimatione purorum filiatio non potest probari Coke l. 5. f. 98. b. Burys case Legitimation of Children is allwayes presumed and begetting of Children cannot be proved Bury was divorced from his first wife a vinculâ— matrimonâ—j causa frigiditatis and as he lawfully might married a second wife and had issue by her and it was adjudged that the issue of the second wife was legitimate for notwithstanding his naturall imbecility deposed before the divorce it was said that a man might be habilis and inhabilis diversis temporibus and that though the second marriage was yet it remaineth a marriage untill it is dissolved and by consequence the issue which was had during the coverture if no divorce was had in the life of the parties is lawfull for lawfulnesse of Children is allwayes presumed and filiation cannot be proved Ibidem Coke Com. 126. a. A man leaveth his wife enseint with child issue shall not be taken that shee was not enseint by her husband for filiatio non potest probari but the issue must be whether shee were ensciut at the day of her death ibidem f. 244. If the husband be within the foure Seas that is within the jurisdiction of the King of England if the wife hath issue no proofe is admitted to prove the child a bastard for filiatio non potest probari unlesse the husband hath an apparent impossibility of procreation as if the husband be but eight years old or under the age of pro-creation such issue is a bastard albeit he be born within marriage The Law supposeth that to be true which is false because it may be true as a man marrying a woman that was with-child before marriage the Law supposeth the child to be the
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
enrolled enfeoff the King without any consideration the King shall be seised to his owne use as having such prerogative in his person that he shall not be seised to the use of any other 28. H. 8. 7. Dier Bokenghams case by Knightley Cok l. 2. f. 71. b. It is not unjust but equall that the bargain or shall annex such a condition to the State of the land as he pleaseth for cujus est dare ejus est disponere he that hath power to give hath power to dispose ibidem Coke l. 7. f. 6. Calvins case The King by his letters patents or the Parliament by thier votes may grant denizations without limitations or restraint or else limited denizations as to an alien and the heires males of his body 9. E. 4. f. 7. in Bagots case or to an alien for terme of life as to John Fenell 11. H. 6. 3. Or else upon condition whereof I have seen diverse presidents for who hath power to give hath power to dispose ibid. Modus dat domationi Fleta Ployd f. 25. a. The mannor of the gift which the donor limiteth maketh a law to the donee for though in the preamble of the Act of W. 2. there be but three estates limited to wit especiall taile franke-marriage and generall taile yet may the donor make other tailes by his limitation for his will is a law as to the taile and so heires males of the body of the donee and taile to the heires females of the body of the Donee and all other tailes are within the purview of the Act for the will of the donor is the effect of the stature and from it it followeth that the alienation of the donee shall not bind the issues nor the donor And the second wife shall not be endowed neither can the donee charge the land with a rent-charge or other encumbrance neither shall the land be forfeited for felony and all these are included in the first purview to wit that the will of the donor shall be observed and are but consequences and explanations of the first purview vide ibidem plura But if a gift bee repugnant or contrary to law Exception as a gift made upon a condition unlawfull or impossible it is void and of no effect to gain any thing by the making of it in our law As if the condition be to kill a man Ployd f. 34. b. Or if an obligation be made to save one harmeless for killing a man Ibid. f 64. b. these conditions are void So a feoffment made that the feoffee shall not alien the land is void because it is contrary to law for by the law tenant in fee-simple hath power to alien to any man for if such a condition should be good then the condition should oust him of all the power that the law hath given him which is contrary to reason Littleton The like law is upon a devise in fee upon condition that the devisee shall not alien the condition is void And so it is of a grant release or confirmation or any other conveyance whereby a fee-simple doth pass for it is absurd and repugnant to reason that he that hath no possibility to have the land revert to him should restrain his feoffee in fee-simple of all his power to alien And so it is if a man be possessed of a lease for yeares or of an horse or of any other Chattells reall or personall or give or sell his whole interest or property therein upon condition that the Donee or Vendee shall not alien the same the same is void because his whole interest and property is out of him so as hee hath no possibility of a reverter and it is against trade and traffick and bargaining and contracting betweene man and man and against reason that he should oust him of all power given him for regulariter non valei pactum de re mea non alienda a contract or condition that I shall not alien that which is my owne doth not hold and suiquum est liberis hominibus non esse liberam rerum suarum alienationem it is unjust that freemen should not have liberty to alien their owne estates But these are to be understood of conditions annexed to the grant or sale it selfe in respect of the repugnancy and not to any other collaterall thing Coke com f. 223. a. But before the statute of quia emptores terrarum A man might have made a feoffment in fee and added further that if he and his heires did alien without licence that he should pay a fine it had beene good then and then the Lord also might have restrained the alienation of the tenant by condition because the Lord had a possibility of reverter and so it is in the Kings case at this day because he may reserve a tenure to himselfe If A. be seised of black Acre in fee and B. enfeoffeth him of white Acre upon condition that A. shall not alien black Acre the condition is good for the condition is annexed to other land and ousteth not the feoffee of his power to alien the land whereof the feoffment is made and so no repugnancy to the State passed by the feoffment and so it is of gifts or sales of Chattels realls or personalls Coke ibidem But if a feoffment be made upon condition that the feoffee shall not infeoff I. S. c. This is good for he doth not restrain the feoffee of all his power and in this case if the feoffee infeoff I. N. of intent and purpose that he shall infeoff I. S. some hold that this is a breach of the condition for Quando aliquid prohibetur fieri ex directo prohibetur per obliquum for when any thing is forbidden to be done directly it is also forbidden to be done collaterally or obliquely Coke ibidem b. And a gift in taile that is made upon condition that the donee nor his heires shall not alien in fee in taile or for terme of anothers life is good to all those alienations which amount to any discontinuance of the estate taile or is against the statute of W. 2. but as to a recovery the condition is void for that is no discontinuance nor against the said statute Neither is a collaterall warranty or lineall with assets in respect of the recompence restrained by the said statute no more then a common recovery is in respect of the intended recompence Ibidem If a man make a feoffment to Baron and feme in fee upon condition they shall not alien this is good to restraine them by feoffment or alienation by deed because it is tortious but to restraine their alienation by fine is repugnant void because lawfull ibidem Voluntas reputabitur pro facto Bract. the will shall be esteemed for the deed If no place be limited where money is to be paid in the condition of a Bond and the Obligor at or after the day of payment happen in the company of the obligee and offereth
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
case whence springeth this often used assertion Non est regula quin fallit for as Cato saith vix ulla lex fieri potest quae omnibus commoda sit sed si majori parti prospiciat utilis est there can scarce any Law be made which shall fit all men but if it provideth for the greater part it is profitable and therefore the ordainers and interpretors of Laws respect rather those things which may often happen and not every particular circumstance for the which though they would they shall not be able by any positive Law to make provision and for the like reason Mr. Ploydon saith that Law is reasonable that provideth for the multitude though that some persons loose by it f. 369. b. By reason whereof they doe permit the rules actions and propositions of the Common Law upon discourse and disputation of reason to be restrained by exceptions which are grounded upon two causes the one is equity the other is some ground or rule proposed wherein for conformities sake and that no absurdity or contradiction be permitted certaine exceptions are framed which doe not onely knit and conjoyne one rule of reason to another but by meanes of their equity temper the rigor of the Law which upon some certaine circumstances in every of the said rules might happen and fall out omnia bene aequiparat as Bracton saith Nomot f. 14. But as Sir Hen. Fi. saith this crossing and encountring of one ground and maxime with another if the greatest difficulty we finde in the arguing of our cases but to help this we are to prefer those and those are to prevaile that carry the more excellent perfect reason and equity with them and Sir Francis Bacon saith it is a point worthy to be observed generally in the rules of the Law that where they encounter or crosse one another in any case it be understood that the Law holdeth worthier and which rules are of more equity or humanity but now to give you some examples of them which allwayes doe illustrate Coke com 183. It is a maxime in the Law Quaelibet concessio fortissime contra donatorem interpretanda est every grant shall be taken most strongly against himselfe as if Lands be letten or a rent granted an estate for life passeth for that is most strongly against himselfe which is to be understood that no wrong be thereby done for there is another rule in the Civill Law ea est accipienda interpretatio quae vitio caret and a maxime in our Law that legis constructio non facie injuriam the interpretative construction of Law shall wrong no man and therefore if tenant for life maketh a lease generally it shall be taken for his own life or else it should worke a wrong to him in reversion and so it is if tenant in taile should make a lease generally for otherwise it should worke a discontinuance and a wrong vide ibidem So if tenant in fee maketh a lease for life without mentioning for whose life it shall be deemed for the life of the Lessee and shall be taken more strongly against the Lessor but if tenant entaile maketh such a lease for life without expressing for whose life this shall be taken for the life of the Lessor because otherwise it would work a wrong Coke Com. f. 42. a. So if an Executor grant all his Goods and Chattells the goods which he hath as Executor will not passe because it may be a devestation and a wrong yet against the trespassor he shall declare quod bona sua cepit 10. E. 4.1 So it is a rule verba ita sunt intelligenda ut res magis valeat quam pereat words are so to be understood that the matter may prevaile rather then perish as if I give Lands to I. S. and his Heires rendring five pounds yearly to I. S. and his Heires this implyeth a condition to me that am the Grantor yet were it a stronger exposition against me to say the limitation should be void and the Feoffment absolute Bacon Max. f. 15. If the Chancelor dyeth before his servants priviledge discussed in bank 35. H. 6. 3. 172. b. yet it shall be allowed contrary to the rule sublata causa tollitur effectus but there is another rule actus legis nulli facit injuriam the act of the Law prejudiceth no man and for that reason the Court shall not prejudice him where no folly was in himselfe It is a ground qui male agit odit lucem and therefore the Law countenanceth more things done in the day then in the night as the party hath all the day till night to pay his rent and if it be a great sum he must be ready as long before the Sun set as the mony may be told for the other is not bound to tell it in the night and a man must not distraine in the night time for rent behind yet is there another ground in the Law quod necessarium est licitum and therefore when there is a necessity of doing things they may be done in the night time as an arbitrement made and delivered in writing the last day after the Sun set is good enough for judgements and arbitrements require long advice so may goods be distrained for in the night for damage feasant and a man may be arrested in the night for otherwise peradventure he shall not doe it at all It is a ground in the Law nihil agit in seipsum no man can doe an act to himself yet if one of the Chapter enfeoff the Deane and Chapter by that he he himselfe shall take by his own livery because the Law in that case cannot doe otherwise so a feme tenant in Socage may endow her selfe and an Executor pay himselfe It is a ground in the Law certa debet esse natratio counts and declarations must be certaine yet things which containe a necessary implication are good enough for it is another ground non refert quid ex aequipollentibus fiat it mattereth not what is done by equippollent or words which amount to such a sense as in an Ejectione firmae c. In a count of a lease made by tenant for life it sufficeth to say that the Lessor is yet seised without the alledging of his life expresly because it amounteth to the same sense by necessary implication So in an information upon the Statute of usury and he counts that the Defendant took per viam medium corruptae mutnationis by the way and means of corrupt borrowing whereas it should be accomodationis plaudingo and yet good enough It is a ground qui facit per alium facit per se things done by another are as it were done by himselfe yet is there another rule that corporall and personall things cannot be done by another as suite of Court cannot be done by another 7. H. 4.9 Otium est mater omnium vitiorum Coke l 11. f. 53. b. As all vertue consisteth in action so vice
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