diversi desiderantur actus ad aliquem statum perficiendum plus respicit lex actum originalem when to the perfection of an estate or interest diverse Acts or things are required the Law hath more regard to the originall Act vide ibidem Lamperts Case When a man seised of Lands in Fee-simple or Fee-taile generall taketh a Wife to the perfection of her Dower two things are requisite lawfull matrimony and the death of her husband and if baron and feme levy a fine the feme is barred of her Dower because that the intermarriage and seisin are the fundamentall causes of Dower and the death of the baron onely the execution of it for the beginning is the principal part upon which all others are founded and therfore in such case if baron and feme grant a rent by fine out of the Land or make a lease for years rendring rent to the baron and his heires and then the feme recovereth Dower shee shall hold that charge with the rent and with the terme and the opinion of Ployden in Stowells case 373. is not holden for Law as appeareth by Dyer f 72. and in Damports case Dyer 224. it was adjudged to the contrary 2. H. 4. and now common experience without contradiction is against it and so Littleton in his Chapters of conditions f. 83. holdeth that if the Feoffee upon condition taketh a wife the Feoffee may enter for the condition broken and the reason is for that the Law hath a principall regard to the originall and fundamentall cause and yet it may be said that the title of dower is not consummate untill the death of the husband and peradventure the feme might die before the Baron vide ibidem plura So things are construed according to that which was the beginning thereof as one maketh me sweare to bring him mony to such a place or else he will kill me and I bring it him accordingly this is fellony in him 44. E. 3. 14. b. So if he make me sweare to surrender my estate unto him and I doe so afterwards this is a disseisin to mee 14. Ass Pl. 20. One imprisoned till he bee content to make an obligation at onother place and afterward he doth so being at large yet he shall avoid it by duresse of imprisonment 21. E. 4. 68. b. Outlawry in trespasse is no forfeiture of Land as outlawry of felony is for though the not appearing is the cause of the outlawry in both yet the force of the outlawry shall be esteemed according to the hainousnesse of the offence which is the principall cause and foundation of the processe 3. E. 3. 84. A man and feme sole have a villaine and afterwards enter-marry and the villaine purchaseth Land they shall not have lands by intierties but by moieties joyntly or in common as they had the villaine in the beginning Coke l. 5. f. 47. a. In Littletons case upon the generall pardon of 35. Eliz. Whether upon a bill exhibited in the Star-chamber before the Parliament and processe awarded returnable after the Parliament the suit shall be said to be hanging by bill before the returne or serving of the processe and it was resolved that it was because the bill is origo caput sectae the bill is the beginning and head of the suit Cujusque rei potissima pars principium est origo rei inspici debet Coke com f. 298. b. whereof he saith you shall make great use in the reading of our bookes A disseisor hath issue and entreth into religion by force of which the tenements descend to the issue in this case the disseisee may enter upon the issue because the discent of the issue was by the Act of the father and not by the act of God and the Law respecteth the originall Act which is his entry into religion whereas a descent doth not take away entry unlesse it commeth by death Littleton ibidem An escrowe is delivered by a feme sole if she marry or die yet by relation to the beginning it shall be good 14. 4. H. 2. Lessee for yeares is bound to I. S. to make him the best estate he can and afterwards the reversion falleth to him the Lessee shall be discharged of the Bond if he grantteh the estate he had at the bond making 12. H 8. 5. A stranger abateth after the death of the father the son dieth his wife shall not have dower for this abatement shall relate to the death of the father 21. E. 4. 60. An attainder by Act of Parliament hath relation to the first day of the Sessions 35. H. 8. b. Presentment tempore belli is not good to gaine possession from the right patron though the induction was tempore pacis Coke l. 2. Binghams case and l. 11. f. 99. b. And such an usurpation shall be construed to be in time of War A blow given by one at the time of non sanae memoriae though the party die when he is fanae memoriae it is not capitall Ployd D. Hales case So if a man of non sanae memoriae giveth himselfe a mortall wound and becommeth sanae memoriae and dieth he shall not be felo de se Coke l. 1. Shellies case f. 99. b. A man buyeth certaine beasts in Market which were stolen and selleth them out of the market and the Vendee giveth him a Crowne in earnest and afterwards they are brought into the Market and agreeth to his bargaine and payeth all his mony and also payeth toll for the beasts the property is not changed for the bargaine shall have relation to the first communication Dier f. 99. b. Tenant for life upon condition that if the Lessor die without issue the Lessee shall have see the Lessee entereth into religion and the Lessor dieth without issue the Lessee is dereyned he shall never have fee because at the time of the performance of the condition the fee could not vest in him Ployd f 489. a. In case of attainder by verdict for felony it shall have relation to the time of the fact done 30. H. 6. 5. Lands given in franke-marriage reserving a rent the reservation is void untill the fift degree is passed 26. Ass Pl. 66. One hath a Rent charge going out of his wifes Land the grantee leaseth to the husband and his heires the husband shall not have it but it shall inure to him by way of extinguishment onely as seised in right of his wife 14. H. 8. 6. The wife endowed by the heire is said to be immediately in by the husband and if the husband were a disseisor and the heire in by dissent yet the disseisee may enter upon the wife Littleton The executor refuseth the Administrator may have an action of trespasse for the goods taken out of the possession of the Executor supposing they were taken out of his possession 38. H. 6. 7. A Recovery without an originall is void and judgement given in Chancery without originall is void and an outlawry
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
Laborne in his house being one of the Seriants of the City of London Frost cometh to Laborne with a Warrant from the Sheriffs to arrest the said â— upon the Capias Utlegatum which he utterly refuseth but suffereth him to goe at large upon an action of the case brought against the Sheriffs supposing that the Sheriffs arrested him and suffered him to goe at large the Defendants pleaded that they did not suffer him to goe at large and judgment was given for the Plaintiff and the verdict warranted well the count for in judgement of Law the Sheriff and his Serjeants are words equipollent amount to so much and is all one as if the Sheriffs had arrested the said B. vide ibidem plura A Writ is to the Sheriff and he returneth virtute praecepti he hath done well for it is equipollent virtute brevis 11. H 6. 16. In a Writ it is said quam clamat esse jus this equipolleth with a Fee-simple and therefore in the subsequent part of the Writ if he instanceth in a lesser estate as ex dono for life the Writ shall abare 39. H. 5. 38. Upon an Enditement for celebrating Masse contra formam Statuti 1. El I was holden that under this terme Minister a Preist was included because a Preist is bound to celebrate and minister the holy communion c. and also it was holden by all that the terme Clerk is sufficient to prove him a Preist or a Minister Dyer f. 203. b. Coke l. 5. f. 4. b. Verus antiquus redituus the true and antient rent is not to be understood of the quality incident to it but of the quantity of the rent for that is the effect and substance of the thing reserved as if the antient reservation was of rent to be paid in Gold and the novell reservation was to be paid in Silver or if a quarter of Corne was antiently reserved and now the lease is made rendring eight bushells of Corne it is all one for the Law respecteth not the formes of words or their quality but the substance and effect of the matter parum differunt qui re concordant and they differ little which agree and equipoll in substance If one maketh his Will and committeth the Administration to one by it he shall be Executor because it is all one in substance 3. H. 6. so by the grant of a Church the advowson shal passe 7. E. 3. 15. One granteth the nomination of an Advowson Habendum the advowson the Habendum is good for it is the same thing so one granteth the remainder whereas he had a reversion it is good enough to make the thing passe 6. E. 6. Ante 134. vide Ployd 157. b. If a man lease to one an acre of Land for life reserving to himselfe the herbage the reservation is void because he hath leased the same thing in substance and the profits of the Land and the Land it selfe are all one 38. H 6. 34. Words of substance and not usuall are equivalent to words of substance and usuall Ployd 140. b. As if tenant for life and his Lessor make a Feoffment in fee it is the Feoffment of the Lessee for life and the confirmation of the Lessor though there be not a word of a confirmation in it and if tenant for yeares and the Lessor make a Feoffment in fee it shall be the livery and Feoffment of the Lessor and the surrender of the Lessee and yet there was not one word of surrender And if a commoner maketh a deed to the tenant of the Land by which he renounceth the common unto him it shall enure as a release because the words are equivalent to a release So if Land be leased by Indenture for yeares and Covenants made to render and pay for the tenements such a summ it is all one as a reservation of a rent and if the Lessor say I wil have twenty pound rent and the Lessee agree or if the Lessee say I will give twenty shillings rent and the Lessor agree it is a good reservation of a rent so if a man be bound by Obligation to en feoffe I. S. and he maketh a lease for years and a release in fee he hath performed the condition because they are all one vide ibidem Yet words of art may not be supplyed by equivalent and equipollent words though they beare the same sense and substance as in an Enditement of murder voluntarie ex mulitia praecogitata interfecit is not sufficient but the word murder avit must be so in an Enditement quod quoddam tormentum in H. L. exoneravit dans eidem H.L. cum pelletto plumbeo predicto vulnus mortale Dans ei vulnus mortale c. is not sufficient but it should have been percussit which is the word of art Coke l. 5. f. 222. b. Longes case And the reason of this is given by Coke in his Preface to Littleton that words of art are so apt and significant to expresse the true sense of the Laws and so woven into the Laws themselves as it is in a manner impossible to change them neither ought legall termes to be changed SECT 4. From naturall Philosophy NExt to Logick by whose principles as by many hands we are conducted to the knowledge of the Lawes and other Sciences naturall philosophy is to be placed which is the prime and principall part of other Sciences for by the knowledge of naturall things we are instructed to observe the diversity of the actions and manners of men according to the difference of climats and various conditions of them of which any one ignorant wil be altogether unable to judge of civill and aeconomicall affaires and therefore as Mr Ployden Have the Philosophers searched so deeply into the law of nature in their lawes and writings and for the government of the people by them given precepts to follow the rule of nature and have taken nature to be as it were a foundation to all lawes Neither have the Founders of our lawes been remisse in searching out the law of nature neither were they void of the understanding of it for their lawes argue the contrary and shew that those who made them were of more great and profound judgement and as well learned in the law of nature as in all reason and in the Law of God also for nothing in our Law is ordeined contrary to nature or contrary to reason or contrary to the Law of God but according to them all Ployd 304. a. and b. And according to it hath the law established diverse grounds and maxims 1. Quae rerum natura prohibentur nulla lege confirmata sunt Reg. I. C. Marcellus Lawes which are contrary to the Law of nature lose their force and are no lawes at all Finch Nom. f. 75. Such was that of the Egyptians to turne women to Merchandise and Common wealth affaires and men to keep within doores and of the Thracians who counted idlenesse an honest thing and stealing
Coke com f. 25. a. A devise cannot direct an inheritance to descend contrary to the rules of the Common Law as if a man devise Lands to one and the heires males of his body and hath issue a Daughter who hath issue a Son the Son shall not inherit as heire male because he must convey the descent from the heires males for though a devise may create an inheritance by other words then a gift can yet can it not direct an inheritance to descend contrary to the rule of Law and no intent of the devisor appeareth that the Son of the Daughter should against the rule of the Law inherit vide Ployd f. 414. b. So if a gift be made to a man and the heirs females of his hody and hath issue a Son who hath issue a Daughter this Daughter shall never inherit vide ibidem plura Prâ—ximus sum egomet mihi Ployd f. 545 a. It is the naturall order to karve himselfe before he karve another and charity beginneth at home And therefore in legacies it is reason that the Executors shall have preferment of satisfaction before others and the Law maketh allowance to them before any others because as Lit. faith they represent the person of the Testator and Coke com f. 209. b. The Executors doe more represent the person of the Testator then the heire doth to the Ancestor for though the Executor be not named in Mortgage yet the Law appointeth him to receive the mony but so doth not the Law appoint the heire to receive the mony unlesse he be named and therefore if the Obligee maketh the Obligor his Executor it is a release in Law and if the Obligor make the Obligee his Executor the Action is gone for they are as it were the same person in law whence the law maketh allowance to them before any other For if a man devise to A. 20 l. and to B. 20 l. and to C. 20 l. and maketh his executor and dieth having goods only to the value of 20 l. now it is in the election of the executor to which of those three he will pay the 20 l. and if he pay it to one the other cannot contradict it neither hath he any remedy for his legacy so by the same reason if one of the three be made executor to the testator the law saith he may and will retaine the 20 l. in satisfaction of his legacy and the law alloweth of it for it is reason that he be next to himselfe and have regard to himselfe before another And this is the reason of the case in 12. H. 4. f. 21. where in debt upon an obligation against the heir he pleaded that the Plaintiff was executor to Lancestor which deed he put before them and administred certaine goods and Chattels to the value of the debt and more and retained the same summe with him in the name of payment and demanded judgement if Action And Hull said that if he did not retaine the same to himselfe and might have retained it and did not he shall be barred for a man is bound to be next to himself and this was the opinion of some of them for which he pleaded there that he adminstred no goods after the death of the Testator vide ibidem plura in Paramers case And for the same reason doth the law in all reciprocall acts respect mutuall recompence and consideration for if there be no consideration why should they be made Doct. and St. and it is supposed there was error in such Acts because there is no consideration of profit for every one is next unto himselfe ad suum lucrum satis sapit is sufficiently wise to project his owne emolument And therefore have considerations a great effect in lawes and customes for consideration is the beginning of all customes the grounds of all uses the reason of all rights and the causes of all duties For without consideration nothing is wrought by any conveyance no interest transferred no right removed nor duty accrued and no custome hath continuance As if the Lord of the Manner prescribe that every one who passeth the highway which lyeth in his Mannor shall pay 12. d. to him for his passage this is void and not upon good consideration but if he prescribe to have a penny of every one that passeth such a Bridge which the Lord of the Mannor doth use to repaire this is a good prescription Calthrope Copy-holds f. 35. and 36. And therefore is consideration described by Dier f 336. to be the cause or occasion of a meritorious recompence either in deed or law for all contracts and bargaines have quid pro quo contractus est quasi actus contra actum and must have quid pro quo Coke com f. 47. b. And so it is in exchanges annuities pro consilio impendendo or service rents services and tenures for dâ—meanes of Lands as Frank-almoigne Homage-auncestrell for warranty and acquittall commons for cause of vicinage or service Devise of a woman causa matrimonij praelocuti so the manner of a gift to doe such a thing or to make such a thing Considerations are either executory or executed and in considerations executory the recompence failing the Feoffment or grant ceaseth as a feoffment to instruct the feoffor in one mistery or Art if the Feoffor dieth before instruction the heir shall re-enter 21. E. 3. Grant of an Office and for the executing it a fee if the office be determined the fee is determined M. 5. E. 4. 7. and 20. E. 4. If a woman give land causa matrimonii prelocuti and he will not marry her she shall have a writ to recover the land Ployd f. 58. a. If a man make a lease for yeares rendring rent the lessee needeth not pay any rent if the Lessor had nothing in the land at the time of the lease because he had not quid pro quo Coke com f. 47. b. If I grant an annuity pro consilio impendendo if he wil not give me councell I must stay my annuity Ployd 144. b. An usuall and accustomed attendance of a corodian upon the Soveraigne of a monastery upon festivall daies determineth the corodie it being a reward for attendance Exchanges not executed by each party at the first is defeasible 9. H. 4. A portion of rithes granted by indenture for ever without cavillation or contradiction and an annuity granted for the aforesaid portion So to have a way for my life and I grant an annuity of 20 s. without limitation the annuity shall endure but during my life Dier 336. 337. Where no consideration is expressed there the consideration may be averred Dier 146. Vellies case A rehersall of a consideration past whether it be true or false shall not dissolve the gift as because he served me in the Wars beyond the Seas although it be false it is not materiall Bracton in modis donationum and so in the case of the King Dier f. 337. If A. enfeoff B.
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
re-entry is good if the other party confesse the condition If twelve be sworn and one depart another of the pannell by consent may be sworn and with the eleven give verdict The Court in a Quare impedit by consent may give longer day then is limited by the Statute of Marlebridge The Statute of 2. E. 3. 20. E. 3. provide that neither for the great Seale or the petty Seale Justice shall be delayed yet when the matter concerneth the King onely if he command it it may be stayed F. N. B. 21. b. Tenure at this day may be created by consent of all notwithstanding the Statute of Quia emptores terrarum 27. H. 8. By speciall consent of parties re-entry may be made for default of payment of the rent without demande of it Dyer 78. vide by all which cases it appeareth that consent of parties altereth the forme and course of Law ibidem Coke l. 5. f. 40. Electio semel facta placitum testatum non patitur regressum 20. H. 6. 24. Coke com f. 146. a. An election once made and testified by pleading suffereth no returne As if a Rent-charge be granted to A. and B. and their heires and A distraineth the Beasts of the Grantor and he sueth a Replevin A. avoweth for himselfe and maketh conusance for B A. dyeth B. surviveth B. shall not have a Writ of Annuity for in that case the election and the avowry for the rent of A. barreth B. of any election to make it an Annuity ibidem Coke l. 4 f. 5. b. in Vernoms case If the Baron discontinue the Land of his wife and dyeth and the wife bringeth a Writ of dower against the discontinuee and recover the third part shee is by it estopped to bring a cui invita for by the Writ of Dower shee claimeth Title of Dowâ—r onely and therefore shall be estopped to claime any other right by a cui invita 10. E. 3. double Plea 8. 10. E. 3. Scire facias 13. F. N. B. 194 17 Ass Pl. 3. For when shee bringeth her Writ of Dower and hath judgement to have the third part of all by it shee affirmeth that shee hath but title of Dower and by consequence no estate and therefore shee shall be estopped to claime any part of it of which shee hath demanded by her Writ to be endowed and an acceptance of rent by her Deed indented concludeth the feme of her right 11. H 7. 10 vide ibidem plura in Christians case But here a diversity is to be observed that a man may have several remedies for a thing that is meerly personal or meerly reall As if a man may have an action of account or an action of debt at his pleasure he bringeth an action of account appeareth to it and after is non-suite yet he may have an action of debt afterwards because both actions charge the person the like case is of an assize of a writ of entry in the nature of assize and the like Coke com f. 146 a. Multa conceduntur per obliquum quae non concâ—duntur de directo Coke l. 6. f. 47. a. Many things are granted by the by which are not directly granted As when a Bar is pleaded in a reall or personall Action as a release c. in a forrain County there the Jurors which try it shall assesse damages according to the profits of the Land in another County so by that meanes enquire of things locall in another County for many things are granted by the by c. And when they try the matter of the Bar upon good and pregnant evidence they ought to finde all dependants upon it as damages c. vide ibidem plura Dispositio â—e interesse facturo lest inutilis Bacon f. 56. The grant of a future interest is vaine and void for the Law doth not allow of grants unlesse there be a foundation of an interest for the Law will not accept of Grants of Titles or of things in Action which are imperfect interests much lesse will it allow a man to grant or incumber that which is no interest at all but meerly future As a Writ of Annuity was granted by a prebend after collations admissions and institutions but before installation or induction which though it was confirmed by the ordinary who was the Patron also was adjudged void because he had but jus ad rem and a future interest but not in re for he shall not be said a prebendary to all intents nor at the Common Law without the reall possession which is by induction Dyer 221. Pl. 18. A. maketh a Lease of Land for years to B without reservation of the Woods and Trees the Lessor cannot sell all the Woods and Trees for the Woods and Trees are parcell of the Lease and passe to the Lessee as well as the Land if they be not excepted upon the Lease for all the fruites and profits coming from the fruitfull Trees belong to the Lessee and the shadow and also the branches and loppings for fire or enclosure of fences Dyer 90. Pl. 8. If I grant unto you that if you enter into an obligation to me of one hundred pounds and after procure me such a Lease that then the same obligation shall be void and you enter into such an obligation unto me and afterwards doe procure such a lease yet the obligation is simple because the defeasance was made of that which was not 20 Eliz. 19. H. 6.62 So if I grant unto you a rent-charge out of white-acre and that it shall be lawfull for you to distraine in all my other Lands whereof I am now seised and which I shall hereafter purchase although this be but a liberty of distresse and no rent save onely out of white-acre yet as to the Lands after to be purchased the clause is void 27 E. 3. If I covenant with my Son in consideration of naturall Love to stand seised to his use of the Lands I shall hereafter purchase the use is void 25. 27. Eliz. So if I devise the Mannor of D. by speciall name of which at that time I am not seised and after I purchase it except I make some new publication of my will my devise is void Ployd Rigdens case vide Bacon ibidem plura f. 57.58 Non refert an quis assensum praebat verbis an rebus factis Coke l. 10 f. 52. b. It mattereth not whether a man giveth his assent by words or by things themselves and Deeds Whereas the assent of an Executor is necessary before any legancy can be had for that debts are first to be paid and that the Executor must look to it at-his perill Offi. of Exec. 234. the assent consent and agreement of John Morris the Executor to the Legacy of William Taylor and Elizabeth his wife did appeare in that at the speciall instance and request of the said Morris the said William Taylor and Elizabeth his wife did release the said Legacy to the said Morris
generall words imply no certainty and with that accordeth 21. E. 4. If a man be bound to be nonsued in all Actions that he hath against him in the Common Bench he may say that he hath no action therein otherwise if the condition be particular to wit that he shall be non-sued in a Formedon c. so as that it appeareth that generall words imply no certainty neither do they conclude any person to say that he hath nothing there vide ibidem plura Cok. lib. 8.78 a. Bospols Case In an arbitrament when the submission is generall of all Actions and Demands c. that may well stand with the generality of the words that there was but one cause depending in controversy between them For generall speeches imply no certainty and the awaâ—d for one is good notwithstanding the generality of the words for though there were many matters in controversy yet if one onely was made known to the Arbitrator he may make an award of it For the Arbitrator is in place of a Judge and his office is to determine secundum alligata probata the duty of the parties which are greived and know their particular greifes is to make known the causes of controversy to the Arbitrator for they are privy to them and the Arbitrator is a stranger and every one is to do that which lyeth in his knowledge but when the condition is in speciall and with a proviso and condition that an award shall be made of the premises or words which amount to so much there the Arbitrator ought to make Arbitrement of all or else the award is void Generalibus semper specialia derogant Reg. f. c. Derg 180. Quando charta continet generalem clausulam posteaque descenâ—it ad verba specialia quae clausulae generali sunt consentanea interpretanda est charta secundum verba specialia f. 134. b. in Edward Althams Case Which rule is almost word for word put and agreed of by both parties In. 7. E. 3. f. 10. Margery Mortimers Case to wit where a Deede speaketh by general words and then descendeth to special words if the words special agree with the words general the deed shall be understood according to the words speciall As if a man grant a rent in the mannor of P. to be taken in an hundred Acres of Land parcell of that Mannor with a clause of distresse in those hundred Acres the Rent shall issue out of the hundred Acres onely and the generall words shall be construed according to the words speciall so if a man grant a Rent and go no further those generall words shall create an estate for life but if the Habâ—ndum be for years that shall qualify the words generall 7. E. 3. So if a man give Lands to one and his Heirs Habendum to him and the Heirs of his body He shall have onely an estate tayle and no fee expectant for the Habendum qualifieth the generall words precedent Ployd f. 541. a. A man maketh a Feoffment by Deede to one to have and to hold to him and his Heirs and if it happen that the feoffee dyeth without heire of his body that then the Land shall revert The generality of that gift to him and his Heires shall be corrected by the speciall branch after so as the Donee shall have but an estate tayle 13. R. 2. in Formedon Dyer 261. b. A man seised in fee deviseth all his Lands in one village and in one of the two Hamlets by name and there were two Hamlets in the said Village The opinion of divers Justices was that none of the Lands in the other Hamlet should passe for it is intendable that the intent and meaning of the devisor was that nothing more should passe then what he had expressed A. acknowledgeth a fine of the mannor of P. with an advowson and regrants the mannor with the Appurtenances the advowson shall not passe Temp. E. 1. F. title grants Ployd 173. b. If I give or lease all my Lands to one and stay there he shall have all my Lands in England but if I say further in the manner of Dale there it is now restrained but if the specialty limiteth a thing which is void and so appeareth it is otherwise as if I lease to one all my Lands in Dale which I have by descent of the part of my mother and in truth I have no Lands in Dale which I have by descent of the part of my mother if the Lessor have other Lands in Dale he shall not have those Ployd 160. a. A man giveth Lands to two Habendum to one for life and after his decease to the other and his Heirs the one shall have the entierly for his life onely notwithstanding the Joynture given in the Premisses by the better opinion in terme M. 8. E 3.427 Generalibus sempâ—r specialia insunt Reg. f. c. Specialls are alwayes contained in the generals and the universalls allwayes comprehend the particularâ— Ployd f. 68. a. The plurall number containeth the singular and more and therefore was it resolved by all the Judges That a pretensed right and title was within the penalty of the Statute of 32. H. 8. for the buying of pretensed rights and titles for pretensed rights and titles in the plurall number did containe a pretensed right and title in the singular number And whereas the Statute of 5 R. 2. c. 5. forbiddeth that none make entry into any Lands or Tenements unlesse in case where entry is given by the Law yet if one enter into a Tenement he shall be punished though the Statute speaketh in the plurall number and likewise whereas the Statute of 1. H. 5. speaketh of false Deeds in the plural number yet if one bring but one false Deed he shall be punished by the Statute as it is holden in many Bookes Ployd f. 467. b. The Statute of Gloucester giveth an Action of Waste against him which holdeth for years which is spoken in the plural number yet may it be taken for him which holdeth for a year or half a yeare vide ibidem plura Generalis clausula non porrigitur ad ea quae sunt specialiter comprehenfa Coke l. 8. 118. b. It is a ground and maxime in the Law that a generall clause is not extended to those things which are specially comprehended Doctor Bonhams Case by the Statutes of 10 14. H. 8. it was enactd that no man should exercise the faculty of Physike within the City of London or within seven miles of the said City unlesse he be admitted thereunto by the President and Colledge of the faculty of Physike and there is another speciall clause contained in the said Acts that any who evilly and not well exercise the said faculty c. shall be punished by Fine and imprisonment c. and it was adjudged that the said generall clause that none should exercise the said faculty of Physike unlesse he be admitted c shall not be extended to the speciall clause
for the punishment of fine and imprisonment c. but that it specially shall be limitted to such onely as did offend only in not well executing and using the said faculty of Physike for a generall clâ—â—â—â— is not to bee extended to those things are specially comprehended so 34. Eliz. f. 120. ubi A. seised of the mannor of Stable in O. in the county of S in fee and also of other lands in the said O. in fee suffereth a common recovery of all and declareth the uses by Indenture that the recoveror shall stand seised of all the lands and tenements in O. to the use of him and his wife and the heires of his body and dieth and after his death the wife entreth into the said Mannor by form of the said generall wordes but it was adjudged that those generall wordâ— did not extend to the Mannor which was specially named Coke l. 4. f. 8â— b. Nokes case clausula generalis non refertur ad expressa a generall clause is not referred to those things are expressed as where the Assignee of a Lease shall have a Writ of Covenant upon those wordes demise and grant yet if there be an expresse covenant that the Lessee shall enjoy it without eviction of the Lessor or any claiming under him this expresse Covenant qualifieth the generallity of the covenant in Law and restraineth it by mutuall consent of both parties that it shall not extend to the assignee Clausula generalis non porrigitur ad ea quae antea sunt specialiter comprehensa Coke l. 4 131. l. 4. when the deed at the first containeth speciall wordes and then concludeth in words generall both the wordes as well generall as speciall shall stand as Lands given to one and the heires of his body Habendum to him and his heires hee hath an estate taile and a fee simple expectant for as Dier f. 56. b A deed by wordes subsequent may bee qualified and abridged but not destroyed Dolosus versatur in universalibus generalibus Coke l. 3. f. 8. a. Twins case it is one of the Ensignes of fraude in a Deed of gift if the gift is generall without the exceptions of his apparell or any thing of necessity for it is commonly said that the fraudulent is conversant in generalls Coke l. 3. f. 57. b. Specots case A Bishop ought not to shew a generall cause for the refusall of a Clark as that he is criminosus or non idoneus for they are too generall and the fraudulent is exercised in generalls and therefore so incertaine that no issue can be taken of them as 2. E. 3. f. 6. The heire ought to alledge some certaine cause of refusall whence issue may be taken Generalia sunt praeponenda singularibus it is a rule in the Register that in a Writ the generall shall bee put in demand or plaint before the speciall as the Mesuage before lands the Land before Meadow Meadow before Pasture and Pasture before Wood and Wood before Juncary F. a. b. f. 2. E. Ex verbo generali aliquid excipitur Coke com f. 47. a. An exception is part of the thing granted and in esse as exceptis salvo praeter and out of a generall a part may be excepted as out of a Mannor an acre but not a part out of a certainty as out of 20 Acres one Ployd f. 361. a. A Lease of all my Lands in D. except white acre is void for white acre and a gift of all my horses except my black horse is void for my black horse Coke l. 10. f. 101. b. quando verba statuti sunt specialia ratio autem generalis generaliter flatutum est intelligendum where the words of a statute are speciall and the reason generall the statute is generally to be understood as the reason of the statute of 23 H. 6. whereby it was ordeined that no Sheriff should take any obligation by colour of their office but onely to themselves and upon condition that the Prisoners appeare at the day contained in the writ was for the avoyding of extortion and oppression and therefore is to receive a benigne and favourable construction and that in equity not only a bond but an assumpsit is within the reason of that statute and so was it adjudged 27. Eliz. Trin. in the Kings Bench betweene Danhigh and Hothcot that if a Sheriff or Goaler for ease or enlargement of any who is in his custody doth take a promise of him to save him harmelesse that though the statute doth onely speake of an obligation yet it is in equall mischiefe otherwise as Wray chiefe Justice said the statute should serve for little or nothing Multa transeunt cum universitate quae per se non transeunt Coke com f. 142. a. If a man seised of land as heire of the part of his mother make a gift in taile or a Lease for life reserving a rent the heire of the part of the Mother shall have the reversion and the rent also as incident thereunto for many things passe with the generallity which by themselves doe not pass so if a man hath a rent-seck of the part of his mother and the Tenant of the Land grant a distresse to him and his heires and the Grantee dieth the distresse shall goe with the rent to the heire of part of the Mother as incident and appertenant to the rent for now is the rent-seck become a rent charge Singulare distributive sumptum e aquat plurali Dier 328. b. a singular distributively taken equalleth a plurall as in an assise the Plaint is of two Acres of Land the Tenant pleads two barrs severall for the two Acres at large and the Plaintiffe makes two severall titles at large to wit for every acre one the Tenant pleades let the assise come upon the title in the singular number and the assise found one title for the Plaintiff and the other for the Defendant against the Plaintiff and judgement was given that the Plaintiffe should recover for one Acre and be barred for the other Coke l. 10. Br. Lifiels case A Lease is for one yeare and that if they agree the Lessee shall have the Land for three yeares rendring during the said terme ten pounds yearely this reservation goeth to both termes Propria res est quae solius est sive uni soli convenit Tholoss Syntag. lib. 5. c. 1. A propriety is that which is one mans onely and appertaineth onely to one man Ploid f. 308. b God made man the Soveraigne over all living creatures and gave the rule of them all to man Terram dâ—dit filiis hominum and so men by the endowment of God were made Lords of the earth and possessors of all things in the earth but how much land or things upon the earth one man shall have and how much another God hath leased to man by lawes by them to bee made and provided and by such lawes in every Realme and Country they are provided and divided and every man
holdeth his Lands and things by the Lawes of the Land wherein hee liveth and this commonly called the law of proeprty Nihil dat quod non habet Arist nemo potest plus juris in alium transferre quam ipse habet Coke com f. 309. b it is a common erudition in the Law that no man can grant that hee hath not Perkins f 15. for that is requisite that he who by his contract shall make another possessor of any thing should bee the proâ—rietor of the thing it selfe otherwise his contract is void Ployd f. 432 b. as if I possessed of an horse sell the Horse upon condition to another that he pay to mee at the feast of Christmas forty shillings for it and before the said feast I sell the horse to another and after the feast the first Vendee failes of payment by which I reseise the horse the second Vendee shall not have the horse for at the time of the second contract I had neither interest nor property nor possession of the horse but onely a condition which is not sufficient to make me able to contract for the property and possession therefore it is meerely void Ployden So if a man grant a rent charge out of the Mannor of Dale and in truth he hath nothing in the Mannor of Dale and after purchaseth the Mannor of Dale yet hee shall hold it discharged Perkins H. 15. So if one not seised of Lands maketh a Lease to another it is a good Plea for the Lessee to say that the Lessor had nothing in the Tenements at the time of the Lease Litt. and the reason of this is for that in every contract there must be quid pro quo for contractus est quasi actus contra actum and therefore if the Lessor had nothing in the land the Lessee hath not quid pro quo nor any thing for which he should pay his Rent and in that case he may plead that the Lessor non dimisit Coke Com. ibidem f. 41. b. vide ibidem plura If the Conusee of a Fine before any Attornement bargaineth and selleth the Signiory to another the Bargainee shall not distraine because the Grantor could not distrain for no man can transfer more right to another then he himselfe hath Coke Com. 309. b. Coke l. 6. f. 57. b. He that hath no seisin in the Land charged cannot give seisin of Rent vide plura Bredimans for no man can give that he hath not The King pardoneth one for making a bridge this is onely good for the fine and he must make up the Bridge because the Kings Subjects have interest in it 37. H. 8.4 Da tua dum tua sunt post mortem tunc tua non sunt Ployd 280. a. when one hath property in goods the property cannot be in him no longer then he liveth for after his death the goods belong unto another Nemo videtur rem amittere cujus propria non fuit Reg. I. C. no man can loose that of which he hath no property and therefore in a Replevin if the Defendant claim property the Sheriff cannot proceed for it is a rule in Law the property ought to be tryed by writ and therefore in this case where the tryall is by plaint the Plaintiff may have a writ de proprietate probanda directed to the Sheriff to trye the property and if thereupon it be found for the Plaintiff the Sheriff shall make deliverance Coke Com. f. 145. b. F. n. b. f. 77. If A. endict B. for stealing of Horses or other goods he must say de bonis catallis cujusdam A. For if there were no property there could be no stealing or injury for nemini vim facere videtur qui suo non alieno utitur Reg. I. c. Nemo reditum invito domino percipere possidere potest Coke Com. 303. b. no man can receive or possesse another mans Rents against the will of the Lord as if one hold of me by Rent which is service ingrosse and another which hath no right claimeth the rent and receiveth it of my Tenant by coertion of distresse or otherwise yet by the payment of my Rent to a stranger I cannot be disseised or ousted without my will or election but that I may distrain my Tenant for the Rent or have an assize against the â—ernor Lit. for a man cannot be disseised of a a Rent-service in grosse Rent-charge or Rent-seck by Attornment or payment of Rent to a stranger but at his election for the rule of the Law is no man can receive or possesse an other mans rent against his will Coke ibidem Quod meum est id amplius meum esse non potest Coke Com. f. 49. b. And therfore if lessee for years enter he is in actuall possession and then Livery cannot e made to him that is in actual possession whereby the Franke-Tenement or fee may inure to him in the remainder for that which is once mine cannot be more mine ibidem Thirdly From the Anteprecedents Aequivocum and Univocum AEQuivocum denoteth words of ambiguous and many significations which as Boetius signifies nothing nisi ad quasque res secundum voluntatem significantis applicetur unlesse they be applyed to the thing according to the will of him that declareth or expoundeth them of which the Law taketh notice and giveth these grounds and maximes Nobiliores benigniores presumptiones in dubijs sunt praeferendae Reg. P. C. And Coke l. 4. f. 13. b. Benignior sententia in rebus generalibus dubijs est praeferenda In doubtfull speeches and sentences the more favorable presumption and opinion is to be perferred As if one doth charge another that he hath forsworne himselfe by the Law it is not actionable for it may be he hath forsworne himself in usuall conversation but an action is onely maintainable against him that hath forsworn himself in Court of Record so ibidem f. 21. An Action upon the case was brought for these wordes for my Lands in Dallinson they seek my life adjudged not actionable because he may seek his life upon just cause which are the more favorable constructions So verba accipienda sunt in meliori sensu Hub. f. 106. Coke l. 4. f. 13. Wordes are to be taken at the best for the speaker though some of them cannot stand with that construction As thou art a Theefe and hast stolen a Tree it shall be adjudged of a Tree standing not felled which is not actionable But as it is said there in Hubberd 106. This rule holdeth not in Deeds and Pleas for in those words are taken more strongly against the speaker of which this reason may be given because commonly words in common language proceed of a sudden from choler and heat whereas words in Deeds and Pleas are grounded upon mature deliberation and consideration and therfore in Deeds this is a general ground Ambiguum pactum contra venditorem interpretandum est Reg. I. C. and Ambigua verba contra
renunciaverit amplius repetere non potest n. f. 139. a. As a Retraxit is a bar of all other actions of the like or inferior nature for he which once renounceth his action can no more renew it It is a generall rule that non-suite before appearance is not peremptory in any case for that a stranger may purchase a writ in the name of him who hath cause of action and regularly a non suit after appearance is not peremptory but that he may commence an action of like nature againe for it may be he hath mistaken something in that action or was not provided of his proofes or mistaken the day or the like But yet for some speciall reasons non-suit in some actions is peremptory as in a quare impedit if the Plaintiff bee non-suit after apparance the Defendant shall make a title and have a Writ to the Bishop and this is peremptory to the Plaintiff and is a good bar in another quare impedit and the reason is because the Defendant had by the judgement of the Court a writ to the Bishop and the incumbent which commeth in by that writ shall never be removed which is a flat barre as to that presentation and for the same law and upon the same reason so it is in the case upon a discontinuance Coke com f. 139. a. vide ibidem plura Actio personalis moritur cum persona a personall action dieth with the person Went. off of executors f. 1. 97. As if a keeper of a Prison suffereth one in execution to escape and dieth no action lyeth against his Executors If Lessee for yeares doth wast and dieth an Action of wast lyeth not against his Executor or Administrator for wast done before that time Coke com f. 53. b. so if the tenant doth wast and he in the reversion dieth the heire shall not have an Action of wast for the wast done in the life of his Ancestor nor the master of an Hospitall or a parson for wâ—st done in the life of the predecessor ibidem The Lessor covenants to pay quit rent during the terme and dieth his Executors shall not pay it because it is a personall covenant in the Lessor onely Dier 114. Yet if there be three copartners and they Lease the land and one of them die and hath issue and the Lessee commit wast and one of them die and hath issue the Aunt and the issue shall joyne in an Action of wast and the issue shall recover one moyety of the Land wasted and the Aunt the other notwithstanding that actio injuriarum moritur cum persona But in favorabilibus magis attenditur quod prodest quam quod nocet in indifferent and favourable things that which profiteth is more respected then that which hurteth Relatio tunc fieri non debet si per eam actus destruatur Reg. I. c. Decius 363. Quando dispositio referri potest ad duas res ita quod secundum relationeÌ„ una vitiatur secunduÌ„ aliaÌ„ utilis sit tunc facienda est relatio ad illam ut valeatdispositio semper ita fiat relatio ut valeat dispositio C. l. 6. f. 76. b. a. A relation then ought not to be when by it an Act is destroyed As in the statutes of 32. and 34. H. 8. concerning Wills whereof is provided that every person having any Mannors Lands c. holden in capite shall have full power c. to dispose by his last will in writing or otherwise by any Act or Acts lawfully executed in his life two parts of the same Mannor c. for the advancement of his wife preferment of his children and payment of his debt or otherwise at his will and pleasure any Law statute c. those words or otherwise at his wil pleasure have reference relation only to the last wil not to the acts executed for otherwise none might have devised two parts but onely for the advancement of his wife and preferment of his children or payment of his debts which is not the intention of the Act but that he may devise two parts to whom he will so that the third descend and it was in vaine to referre those words or otherwise at his will and pleasure to Acts executed for he can do that without any authority given to him by that act And therefore when the disposition may be referred to two things so as according to the relation one of them may be destroyed and according to the other shall be commodious then the relation is to be made to that that the disposition may be of force and alwayes the relation is so to be that the disposition may availe in Sir G. Cursons case So Coke l. 3. f. 28. b. Butler and Bakers case relation is a fiction in law to make a nullity of a thing from the beginning to a certaine intent which in truth had being and the rather for necessities sake ut res magis valeat quam pareat As if a man make a gift in taile to Baron and feme and afterwards grants the reversion of those Lands and since the Baron dies and the feme to have her dower waiveth and disagreeth to the estate taile now in regard of her it is a nullity of the estate from the beginning and to such an intent the Law faineth that the estate was onely made to the baron but as to the grant of the reversion that is a collaterall Act and her refusall shall not have such relation for she may be endowed though that estate stand and so no necessity and therefore without necessity ut res magis valeat the Law will not faine any nullity but in a destruction of a loyall estate vested the law will never make any fiction vide ibidem plura So relation shall make things have been as if as if they never had been 1. H. 7. 16 The husband disagreeth to a Feoffement made by his wife it is void from the beginning so that he may plead ne infeosse pas so 14. H. 8. 10. A devise is that the Executors may sell land c. when they sell all meane charges made by the heire in the interim shall be avoided by relation to the time of the death of the Testator so 14. H. 8 18. I disseise A. to the use of B. the dissiesee releaseth to mee and then B. agreeth with the disseisee this agreement by relation shall be as if he had agreed before the release and so shall defeat it Jurors alien their Lands away between the teste of the Writ of attaint and judgement yet they shall be charged to the King for the estreptment by relation 22. E. 3. 16. Caufe of Assise brought for rescuing a distresse taken for rent and then an Office is found which entitleth the King who seiseth the Land and then an Ouster le maine is sued the Assise is gone for ever because the King shall be said to be in possession at the time of the rescous
without an originall is voide Kel f. 19. b. A remainder is limited to the King and before the inrolement of the deed the King granteth it over and then the deed is inrolled this will not make the grant good Coke l. 3. f. 29. An executor assigneth auditors to one who was accountant to the testator and his auditors find him in arrearages the Action of debt shall be brought in the Detinet onely and hath respect to the beginning 11. H. 6. If I have a villaine for yeares as executor and the villaine purchaseth land the executor entreth the land shall be to the use of the testator and assets in his hands because the villaine which was the cause of it was to such use Ployd f. 292. a. Chap-mans case Causa origo est materia negotii Cok l. 1. Shellies case f. 99. b. vide As if a servant hath an intent to kill his Master before the execution of his intent departeth out of his service being out of his service executeth his intent and killeth him which was his Master it is petit treason for the execution respects the originall cause which was the malice conceived when he was his servant vide ibidem plura I. S. buildeth a shop on the wast of a Mannor of which the Queene was seis'd the Queen granteth the Mannor to the Earle of Leicester and he never entreth nor taketh rent I. S. dieth and his sonne entreth there is no descent against the patentee because there was no disseisin against the Queene Dyer 266. b. Yet when the law giveth power and authority to doe any thing Exception the law adjudgeth of the thing by the act subsequent not precedent Coke l. 8. f. 146. b. As the law giveth me power or license to enter into a common Hostlery or Taverne or to the Lord to distraine or to the owner of the soile to distrain for damage feasant or to him in the reversion to view if wast be made and to the commoner to enter into the land to see his beasts but if he that entreth into the Hostlery or Tavern maketh trespass or if the Lord that distraineth for rent or damage fesant beat or slay the distress or if he that entreth to see wast breaketh the house or remaineth there an whole night or the commoner cut downe trees in these cases the Law shall judge by act subsequent that they entred to that purpose and shall be trespassors from the beginning for acta exteriora indicant intoriora secreta the outward acts shew the inward secrets and with what minde and with what intent he did enter So if a purveyor take my beasts for the hostle of the King by force of his commission it is legall but if he sell them in Market then the first taking is injurious Coke l. 9. f. 11. a. Tenant in taile hath issue two daughters and dieth and the elder entreth into the whole and after entry maketh a feoffment with warranty which is a lineall warranty for the one and collaterall for the other the law judgeth by the act subsequent that the entry was not generall for them both but that it was onely for her selfe and that it shall be a warranty to commence by disseisin for the one moiety Quod initio vitiosum est tractu temporis non convalescet Reg. I. Civ Quod initio non valet tractu temporis non convalescet Coke com f. 35. a. That which in the beginning is vicious or invalid cannot by tract of time bee made good or valid as tenant for life of a carve of land the reversion to the father in fee the son and heire apparent endoweth his wife of this carve by the assent of the father tenant for life dieth the husband dieth this is no good endowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a free-hold whereof hee could not have endowed his own wife Ployd f. 432. b. A. possessed of an horse selleth the horse upon condition that hee shall pay him at Christmas forty shillings for it and before the said feast he selleth the horse to another and at the feast the first buyer faileth of payment whereupon A. reseiseth the horse yet the second buyer shall not have him because at the time of the second contract A. had no interest nor property nor possession of the horse but onely a condition which was not sufficient to make the contract good A. seised of Lands in see maketh a lease for twenty yeares rendring rent to begin presently and the same day he maketh a Lease to another for the same terme the second lease is utterly void so as if the first Lessee surrendreth his terme to the Lessor or loseth the same by breach of condition or forfeiteth it by making a feoffment upon entry of the Lessor the second Lessee shall not have his terme because the Lessor at the making of the second lease had nothing in him but the reversion ibidem A feoffement to the use of the husband for life the remainder to I. S. the remainder to the wife for her joynture this is not a joynture to bar dower because it did not take effect immediately after the death of her husband Hut Rep. f. 50. An infant or a married woman makes a will and publisheth the same and afterwards dieth being of full age or sole notwithstanding this both Wills are void 10. Eliz. 344. Noy Max. f. 4. A lease for life the remainder to the Major and commonalty of B. whereas there is no such it is void though the King doth create such a corporation during the particular estate so a remainder limited to John the son of I. S. having no such son and afterwards a son is borne to him whose name is John during the particular estate it is void Doder Que malo inchoata sunt principio vix bono peraguntur fine Those things which have a bad beginning can hardly have a good end Coke l. 11. f. 78. As a man seised of Lands in fee by deed upon good consideration granteth the Land after his death to the Queene her heires and successors such grant is not made good by the generall words of the act of 18. Eliz. because it was void in the beginning and with it accordeth 38. H. 6. f. 33. The Abbeffe of Sions case and the Earle of Leicesters case Ployd f. 4000. a stronger case then it vide ibidem plura Magdalen Colledges case Coke l. 4. f. 90. a. If a son and heir apparent of a Baron reteyne a Chaplaine and giveth to him his letters under signe and seale and after his father dieth and this Chaplaine purchaseth a dispensation this retainer and those letters will not serve him in that they were not availeable at the beginning vide ibid. Dâ—uries case Coke câ—m f. 352 b. If a fine be levied without any originall it is voidable but not void but if an originall be brought and a retraxii
a difference between inheritances executed and inheritances executory as if Lands be executed by livery they cannot by Indenture of defeasance be defeated afterward or if the disseisee release to a disseisor it cannot be defeated by Indentute of defeasance afterwards but at the time of the release or feoffment the same may bee defeated by Indentures of defeasance for it is a Maxime in law quae inconunenti fiunt in esse videntur But Rents Annuities Conditions Warranties such like that be inheritances executory may be defeated by defeasances made either at that time or at any time after so is the law of statutes recognisances and obligations and other things executory ib. Agreeable to this rule is the reason of the case put by Bro. judgement 148. That if a Feme suffer a recovery of her joynture against the statute of 11 H. 7. without the assent of him in the reversion and after hee in the reversion releaseth to the recoveror by Fine that assent commeth too late and cannot make the recovery good was once void and for the same reason the consent of the major part of a Chapter must bee done at one time simul semel and not scatteringly or at severall daies vide Davis Rep. f. 48. b. So Pl. f. 135. a. b. A Lease by deed for 11. yeares and in security of the terme the Lessor made a Charter upon condition that if he was disturbed of his terme he should have fee and livery and seisin was made as well upon the one Charter as the other then the Lessee was disturbed and it was adjudged that he should have fee because the Charters were delivered at one and the same time T. 10. E. 3. f. 521. Tempus est mensura motus secundum prius posterius Aâ—ist 4. Phys Time is the measure of motion according to priority and posteriority for as the motion doth measure the place so doth time the motion as a days journey is measured of a day and an houres of an houre and because all contracts and matters of entercourse doe fall within the lists and precincts of time therefore the moments and measures of time should be publikely and familiarly knowne to popular conceits For tempus est mensura rerum time is the measure of all things and as Ployd f. 555. b. the diversity of estates proceeds from the diversity of time for the estate in Land is the time in Land for he that hath a fee-simple in Land hath time in the Land without fine or the Land for time without end so he that hath land in taile hath time in it or the land for time so long as hee hath issue of his body and he which hath an estate in Land for life hath time no longer then that he shall live and so for another mans life or yeares And as the time measureth things so doth the law measure time as by the true computation the lesser yeare consisteth of 865. daies and six houres whereby in every fourth yeare there is die excrescens which maketh that yeare to have 366. daies which is called the greater yeare yet by legall computation a quarter of a year containeth 91. daies half a year containeth 162. daies for the od houres in legal computation are rejected And in the statute de annob Sextil it is provided Quod computetur dies ille excrescens dies proxime praecedens pro uno die that the day excrescent and the day precedent shall be computed for one day so as in computation the day excrescent is not accounted so a month is regularly accounted in law for twenty eight daies and not according to the Solar month nor according to the Kalender unlesse it be for the account of the Lapse in a Quare impedit or the right of the Patron Coke com f. 135. b. And Kellaway 21. H. 7. f. 75. A feast in our law beginneth in the morning and endeth at the night and the naturall day beginneth ad ortum solis and endeth ad occasum solis and so is it taken and adjudged in our Law But the feast by the law of the Church beginneth at noone in the Vigil and lasteth untill the midnight of the next day and the night which maketh burglary beginneth ad occasum solis and lasteth untill the rising of the Sunne for where a man hath broken an house after the setting of the Sun it hath beene adjudged burglary for if the night should begin so soone as the day is ended and last untill the morning of the next day it would be too hard a thing to try c. ibidem In omnibus stipulationibus id tempus spectatur a quo contrabimus Reg. I.C. Paulus 62. ad edictum in all assumpsits and contracts that time is respected from which we contract as a man seised in fee maketh a lease for ten yeares and after selleth the land and taketh it back againe to him and his wife and then the husband and wife letteth it for twenty years reserving a rent the husband dieth the wife accepteth the rent for the first ten yeares by this the second lease is not affirmed for the acceptance of the rent before the lease beginneth and is not due is no acceptance 1. E. 6. 37. Coke l. 5. f. 1. a. b. in Claytons case From henceforth in a Lease shall be accounted from the delivery of the Indentures and not from the computation of the date for from henceforth is all one to say as from the making of the Lease Et traditio loqui facit chartam delivery maketh the deed to speake where a Lease is to begin from the making of a Lease there the day of the delivery shall be taken inclusive and the day it selfe is parcell of the demise but if it be made to begin from the day of the making or the day of the date then the day it selfe shall be taken exclusive and excluded And whereas the statute of 27. H. 8. Of enrolement saith That all such writings shall be enrolled within six monthes after the date of the same writings indented if the writings have date they shall bee accounted from the date but if the date be wanting the six months shall be accounted from the delivery vide ibidem plura In obligationibus in quibus dies non ponitur presenti die debetur Pomponius nulla temporis designatio praesens denotat Reg. I. C. And it is a ground in our Law that when a man 's bound in twenty pound to pay ten pound and no day of payment is limitted the lesser sum is due presently and ought presently to bee tendred 20. E. 4. 8. 21. E. 4. 8. In the case of the Mayor of Exeter by all the Serjeants and of some of the Justices yet by the opinion of Starky the discretion of the Justice shall limit a time having regard to the distance of the place and to the space of time wherein such a thing may be performed for the Obligor is not
by his Will or grant a rent-charge out of it for shee hath an estate in it before and at the time of his death which shall prevent the Devisee and shee surviving is remitted to the terme and therefore shall avoide the rent-charge 14. Eliz. Ployd 418 b. If Lessee for yeares granteth his terme to a Feme-covert and another or if a feme-sole and another are Joyn-tenants for years and shee taketh an husband the Joynture is not dissolved but continueth and the Survivor of the feme or the stranger shall have all the terme because the terme is a Chattell reall and the marriage of the feme shall not devest the terme out of the feme but shee had an estate in it as shee had before so that if an estranger oust them the feme ought to joyne with the baron in the suite of ejectione firme and the feme shall have judgement as well as the baron Ployd ibidem So in an action of debt upon arrearages of account against one who was receivor to the feme whilst shee was sole they both must joyne though the Auditors were assigned during the coverture for the very cause of action that is the receipt was in her right 16. E. 4. 8. The husband hath power also to dispose of things in action and his release of an obligation made to the feme or where goods were taken from her whilst shee was sole shall be good against the wife and he dye 87. H. 8. 1. But if he dye without making such a release the Wife shall have an Action upon the Obligation and not the Executors of the husband likewise the wife or her Executor if shee dye shall have those things in action and not the husband but shee may make her husband her Executor and then he shall recover them to her use 39. H. 6. 27. The wife is unable to contract with any without the consent of her husband and upon a Feoffment to a feme covert shee taketh nothing unlesse her husband will agree and where one is bound to enfeoff the husband and wife the husbands refusall is the refusall of them both Finch Nomot f. 44. And where the husband and wife are joynt Purchasers the husband may make a Feoffment and livery upon the Land which shall worke a discontinuance though the wife be in presence upon the Land and will not agree But if the husband and wife bargaine and sell the wives Lands by Indenture and the Vendee grant unto them for the same a yearly rent her acceptance of this rent after her husbands death doth not bar her of the Land although the acceptance be an agreement to the bargaine but the bargaine being but a contract is the bargaine of the husband onely and not of the wife for a wife is sub potestate viri cui invita contradicere non potest and therefore is the Writ cui invita given to the wife by Law for the recovery of her Land after her husbands death being aliened by him and therfore it is that Judges when a woman is to acknowledge any fine of any Lands doe examine her apart from her husband to know whether shee be willing or come to doe it by compulsion of the husband Offi of Ex. f. 210. And upon a joynt purchase of the husband and wife during coverture if the husband alien shee shall recover the whole after her husbands decease unlesse shee acknowledge a Fine and a cui invita is given to the feme by the Statute of Westminster 2. c. 3. upon a recovery by default against baron and feme and by the equity of it a feme divorced shall have a cui ante divortium to recover the Land lost by baron and feme by default before the divorce Ployd f. 58. a. And if Lands be given in Frank-marriage and a divorce had afterwards the feme shall have all the Land ibidem the reason that he there giveth is because the marriages of women and their advancement by it are much favoured in Law as if a woman give Lands to a man causa matrimonij praelocuti and he will not marry her shee shall have a Writ to recover the Land ibidem and Dyer f. 13. A man giveth certaine goods to his Daughter in marriage upon a divorce the feme shal have al the goods so given that are not spent because they were given for her advancement so as it is regularly true In omnibus fere uxori sub potestate viri succurritur Coke l. 9. f. 84. b. In all things almost the Law helpeth the wife because shee is under the power of her husband as if baron and feme as in right of the wife have right to enter into Lands and the Tenant dyeth seised the entry of the husband is taken away upon the heire which is in by descent but if the husband dye the wife or her heires may well enter upon the issue for the laches of her husband shall not turne to the prejudice of the wife or her heires Littl. but otherwise it is if the wrong was done to the feme sole before shee took husband Coke Com. f. 24. a. vide ibidem plura and unlesse it be for the performance of a condition annexed to the estate of Land as if a feme be infeoffed either before or after marriage reserving a rent and for default of non-payment a re-entry in that case the laches of the baron shall dis-inherit the wife for ever ibidem b. Ubi nullam matrimonium ibi nulla dos Bracton Coke com f. 32. a. where there is no marriage there is no dower Ployd f. 375. a. for the marriage of the woman is the principall cause of her dower and though the seisin of the baron and death of the husband are causes sine qua non without which a dower cannot be had yet the procatartique and impulsive cause of the dower of the woman is the paines and burden shee endureth under the power and yoke of matrimony for as Tholosanus Tholosanus Synt. L. 9. c. 11. matrimonium is quasi matris munus a matre potius quam a patre dictum because shee beareth the burden in her wombe and with painfull labour delivereth it and is very indulgent to nourish it and for those reasons as Bracton saith dowers were instituted for a competent livelyhood for the wife during her life to wit propter onus matrimonij ad sustentationem uxoris ad educationem liberorum si vir premoriatur for the burden of matrimony and sustentation of the wife and education of the children if the husband dy before l. 5. c. 22. which Ockam expresseth in a more affectionate terme and calleth her dower praemium pudoris the reward of her chastity and love f. 40. And therfore though it be not necessary that the seisin of the land shal continue during the coverture for notwithstanding the alienation of the husband the wife shall be endowed yet is it necessary the marriage shall continue for if
entire and whereof no division can be made by metes and bounds a woman cannot be endowed of the thing it selfe yet the woman shall be endowed thereof in a speciall and certaine manner whereby shee may have satisfaction as of a Mill a woman shall not be endowed by metes and bounds nor in common with the heire but either shee may be endowed of the third tole-dish or of the whole Mill by every third moneth and so of a villaine either the third dayes worke or every third weeke or moneth So a man shall be endowed of the third part of the profits of stallage of the third part of the profits of a Faire or of the third part of the profits of the Marshalsey of the third part of the profits of keeping of a Park of the third part of the profits of a Dove-house and likewise of a third part of a Piscary by the third Fish or the third cast of the Net or the third Presentation to an advowson and a Writ of Dower lyeth for the third part of the profits issuing out of the custody of a Goale of the third part of the profits of Courts Fines and Heriots and a woman shall be endowed of tithes and the surest endowment of tithes is of the third sheafe for what Land shall be sowen is uncertaine Exception But in some cases of Lands and Tenements which are divisible and which the heire of the husband shall inherit the wife shall not be endowed as if the husband maketh a Lease for life of certaine Lands reserving a rent to him and his heires and after taketh a wife and dyeth the wife shall not be endowed neither of the reversion because there was no seisin in Deed or in Law of the free-hold or the rent because the husband had but a particular estate therein and no Fee-simple Coke com f. 32. a. vide ibidem plura Impossibile est unum corpus in duobus locis esse simul it is impossible for one body to be at two places at one and the same time Pop. Rep. 58. 3. 4. Eliz. As if a man make a lease of two Barnes rendring rent and for default of payment a re-entry if the tenant be at one of the Barnes to pay the rent and the Lessor at the other to demand the rent and no body be there to pay it yet the Lessor cannot enter for the condition broken because there was no default of the tenant he being at one Barne for it was not possible for him to be in two places together and Popbam Walmestâ— and Fenner said that also perhaps that the tenant had not money sufficient to pay it at either of the places but it is sufficient for him to have and provide one rent which cannot be at two places together ibidem Jura naturalia sunt immutabilia Bracton l. 9. c. 23. Coke l. 7. f. 15. b. The Laws of nature are unalterable as if a man have a ward by reason of a Signiory a signiory and is outlawed he forfeiteth his wardship to the King but if a man have the ward-ship of his own son or daughter which is heire apparent and is outlawed he doth not forfeit this ward-ship for nature hath annexed it to the person of the father 33. H. 6. 55. In the same manner maris faminae conjunctio est de jure naturae the conjunction of a man and a woman is of the law of nature as Bract. l. 1. c. 33. Dr. and Student c. 31. doe hold now if he that is attainted of felony or treason is slaine by one who hath no authority or executed by him who hath authority but pursueth not his warrant in this case his eldest son can have no appeale for he must bring his appeale as heire which being ex provisione hominis he loseth it by the attainder of his father but his wife if any he have shall have an appeal because she is to have her appeale as his wife which she retaineth notwithstanding the attainder because the conjunction of man and woman is by the law of nature and therefore it being to be intended of true and right matrimony is indissoluble and this is proved by the book 33. H. 6. f. 57. So if there bee mother and daughter and the daughter is attainted of felony now cannot she be heire to her mother for the cause aforesaid yet after her attainder if she killeth her mother this is parricide and petit treason for yet she remaineth her daughter for that is of nature All which accord with the rule of the civil law jura sanguinis nullo modo dirimi possunt the lawes of consanguinity and the lawes of blood can no way be broken and therefore the corruption of blood taketh away the privity of the heire which is nomen juris and not the privity of the son which is nomen naturae as if an attainted person be killed by his son this is petty treason for the privity of the son still remaineth but if a man attainted be murdered by a stranger the eldest son shall not have the appeale because the appeale is given to the heire for the youngest sons shall not have it 36. H. 6. 57. 58. 21. E. 3. 17. If the son be attainted and the father covenanteth in consideration of naturall love to stand seised of Land to his use this is a good consideration to raise an use because the privity of naturall affection remaineth So if a man attainted have a Charter of pardon and be returned on a jury betweene his son and I. S. the challenge remaineth for he may maintaine any suit of his son though the blood be corrupted If a villaine be attainted yet the Lord shall have the issues of the villaine borne before or after the attainder for the Lord hath them jure naturae as the increase of a flock Bacons Maxims f. 49. and 50. vide ibidem plura If the father be slaine the son shall have an appeale of it for it is a loss to the son to lose the father and the common law giveth the appeale to the son before any other for the earnest intent of revenge which the law supposeth to be in him against the offender for the killing of him and that the son by presumption had the more great love and affection Ployd ibid. f. 304. b. And from thence Bromly said that it was an ancient usage when a felon was found guilty in an appeale of murder that all those of the blood of him was murdered should draw the felon with a long cord to execution which was grounded upon the loss that all the blood had by the murder of one of them Ployd 406. b. Ed. 6. 3. The father being impleaded made a feoffment to his eldest son and heire apparent hanging the suit and the King brought a writ of Champerty against the father and son and by the opinion of most the action was not maintainable because by any law the son is to aide the father and
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
by misadventure as by an Arrow at Butts this hath a pardon of course but if a man be hurt or maimed onely an Action of Trespass lyeth though it be done against the parties will and he shall be punished in the Law as grievously as if he had done it of malice Stanf. 16.6 E. 4.7 So if a Chyrurgion authorized to practise do through negligence of his cure cause the party to dye this Chyrurgion shall not be questioned for his life yet if he do onely hurt the Wound whereby the cure is cast back and death ensueth not he is subject to an Action of the Case for it Stanf. 16. So if Baron and Feme commit Felony together the Feme in regard of the subjection of her will to her husband shal neither be principal not accessary but if they joyn in committing a Trespass upon land or otherwise the Action may be brought against them both So if an Infant wanting discretion or a mad-man kill another he shall not be impeached thereof but if they do him any corpâ—rall hurt he shall be punished in Trespass 35 H. 6. 11. So in Felony if the principall dye or be pardoned the proceeding against the accessory faileth But in a Trespass if one commandeth his man to beat you and after the Battery the Servant dyeth yet you may have an Action of Trespass against the Master 17 H 4.19 Aestimatio praeteriti delicti post facta nunquam crescit Bac. Max f. 32. In penall Lawes and Facts the Law considereth the degree of the offence not as it standeth at this time when it is committed but for any circumstance or matter subsequent the Law doth not extend or amplifie the same As if a man be wounded and the Percussor is voluntarily let to go at liberty by the Goalor and after the party wounded dyeth yet it is no Felonious escape in the Goaler 11 H. 4.12 So if one conspire the death of one who after cometh to be King not being within the Statute of 25 E. 3. this is high not high Treason but otherwise it is in civill and common cases vide ibidem Plur. Ipsae etenim leges cupiunt ut jure regantur Co. l. 2. f. 25. In omnibus quidem maxime tamen in jure aequitas est Reg. I. C. In all things but especially in the Law there is equity and the Lawes themselves desire to be ruled by equity For inasmuch as no Legislators can foresee all things which may happen it was therfore convenient as Ploydon saith that that fault should be reformed by equity And is either an amplification or diminution of the Law and no part of the Law but a morall vertue which reformeth the Law for dirigens and directum are diverse things and equity is not a Law but the emendation of the Law and therefore the Lawes themselves desire to be ruled by equity As whereas the Debtor after he is become Bankrupt may prefer one and defraud others the Act of 13 Eliz. c. 7. hath appointed certain Commissioners of indifferency and credit to releive the Creditors of the Bankrupt equally and that there shall be an equall and rateable proportion observed in the distribution of the Goods of the Bankrupt among his Creditors having regard to the quantity of their severall debts so that one shall not prevent the other but all shall be in aequali jure and so we see in many cases as well at the Common Law as upon the like statutes such constructions have been made for as Cato said Ipsae etenim leges cupiunt ut jure regantur and therefore is it holden 35 H. 8. Title Testaments V. de plura in Herberts case lib. 7. Bro. 19. A man holdeth three Mannors of three severall Lords by Knights-service every Mannor being of equall value he cannot devise two Mannors and leave the third to descend according to the generality of the Acts of 32. 34. H. 8. of Wills for then it shall prejudice the other two Lords but by equall construction he cannot devise but two parts of every Mannor and so as equality shall be observed among them and so at the Common Law an equality is required as in 11 H. 7. 12. b. a man is bound in an Obligation and his Heirs and he hath Heirs and hath lands of the part of his Father and part of his Mother both the Heirs shall be equally charged vide ibidem plura Co. Com. f. 10. a. If partition be made between Parceners of lands in Fee simple and for novelty of partition one granted a rent to the other generally the Grantee shall have a Fee-simple without this word Heirs because the Grantor hath a Fee-simple in consideration whereof he granted the rent Ipsae etenim leges c. And Co. Com. f. 271. a. b. when a Feoffment is made to a future use as to the performance of his last Will the Feoffee shall be seised to the use of the Feoffor and his Heires in the mean time for the Lawes desire to be ruled by right and equity And reason would that seeing the Feoffment is made without consideration and the Feoffor hath not disposed of the profits in the mean time that by construction and intendment of Law the Feoffor ought to occupy the same in the mean time And so it is when the Feoffor disposeth the profits for a particular time in presenti the use of the Inheritance shall be to him and his Heires as a thing not disposed of Co. ibidem Co. l. 5. f. 100. a. The Commissioners of Sewers by the Statute of 6 H. 6. c. 5. and 23 H. 8. c. 5. ought to tax all equally which are in danger to be endamaged by not repairing the Banks and not him onely who hath land adjoyning to the River for otherwise the rage and force of the water may be so great as the value of the land adjoyning shall not serve to repaire the Banks and therefore the Statutes will have all who be in the same perill and are to receive commodity by it to be contributory and the statutes require equality which well standeth with the rule of equity for equitas in Bracton est quasi aequalitas and though the Owner of the Land next adjoyning to the River was bound by prescription to repaire the banks of the River yet the Commissioners ought not to charge him only with all but to take all those which have lands in danger for otherwise it may that all the country shall be surrounded before that one person onely can repaire the Banks vide ibidem plura In Fooks case Coke l 7. f. 123. b. When the King granteth any Land without the reservation of any Tenure or without any thing from thence to be rendred or the like that land by the operation of Law shall be holden of the King in Capite by the service of Chivalry according to the rate and proportion of land that affereth to one fee of Chivalry and so of more more and of lesse lesse for the
making of the banks of a River to be contributory to it for Qui sentit commodum c. Coke l. 7. f. 39. b. If a man grant a Rent-charge for life out of his land and the rent is behind and the Grantor enfeoff A. and the rent is behind in his time and after A. enfeoffeth B. and the rent is behind in his time and then the Grantee dyeth the Executor shall have an action of debt against every of them for the rent behind in his time for qui sâ—ntit commodum c. and so was it holden in Ognels case l. 4. f. 49. a. 50. Barons uses f. 27. If a man bind himself and his Heires in an Obligation or do covenant in writing for him and his Heires or do grant an annuity for him and his Heirs or do make a Warranty of land binding him and his Heires to warranty in all these cases the Heir after the death of the Ancestor is by Law charged with this Obligation Covenant Annuity and Warranty yet with these three cautions 1. That the party must by speciall name bind himself and his Heires 2. That some action must be brought against the Heir whilest the land or other inheritance rested in him unaliened except the land was conveyed away by fraud and one purpose to prevent the Suit intended against him And 3. That no Heire is further to be charged then the value of the land descended unto him from the same Ancestor c. nor to be sold out-right for the debt to be kept in extent at a yearely value untill the debt or damage be run out Neverthelesse for his false plea shall he be charged of his own lands for this Deed of his Ancestor and the reason of this charge is Qui sentit commodum sentire debet incommodum onus vide ibidem plura Dilationes sunt in lege odiosae Ployd f. 75. b. Delaies are tedious in the Law and therefore doth the Law favour Assise because they are the more speedy Suits the Law hath given as the Statute of W. 2. c. 25. in its recitall saith Et quia non est aliquod breve in Cancelaria per quod quaerentes habent tam festinum remedium sicut per breve Nove disseisinae And therefore because it is the more speedy Suit the Law the more greatly favoureth it ibidem For for speed to the Plaintiff the Jurors shal have the view before appearance by the words of the Writ And though Warranties are favoured in Law yet none shall vouch in Assise any one if he be not present and that is for the speed of the Plaintiff No. Nat. br f. 178. And a protection will not defend the party against an assise but assises are accepted by the words of protection p. 2. H. 6. 42. Bâ— protection 53. And all things and pleas which go in retardation or abatement of Assises are esteemed odious and therefore exceptions which will abate other Writs shall not abate Assises if it be so that there is a Disseisor and a Tenant for it is the substance of the Suit and therefore the misnaming of one of the Defendants shall not abate the assise if there be another Disseisin and Tenant and yet the Writ was alwaies false Ploâ—d f. 98. a. b. And if the Tenant plead Joynt-tenancy with a stranger not named although the Plaintiff confesse it yet it shall not abate his assise but for it onely for the remnant the Writ and Plaint shall stand in his force and yet the Plaint was altogether false and if there be a Disseisor and Tenant for any part then it sufficeth for other verity in the Writ or Plaint the Law requireth none and to say that one named in the Writ is dead before the Writ purchased or that there was never any such in rerum natura is alone and shall be adjudged no plea in abatement of the Writ but if there be another Disseisor and a Tenant the Writ shall be good against them Ployd f 90. a. vide ibidem plura And though in actions reall as the weight of the cause requireth there are longer times given in their proceedings then in personall actions yet it appeareth by Fortescue de lib. l. A. c. 5. 3. that they are not too long nor admitted without just cause Crebro enim saith he deliberationibus iuâ—icia matur scunt sed in accelerato processu numquam And as Hobert saith f. 133. Festinatio jâ—stitiae est nâ—verca infortunii Festination of Justice is the step-mother of mischief but many times by deliberations Judgments grow to ripenesse but in over hasty processe never yet the Demandant shall come to a finall end by these actions which he shall never do by prosecution of personall actions for the tryall of a Freehold or Inheritance Co. ep ad lectorem lib. 8. And in all cases the Law favoureth speeding of mens Causes and hateth delayes as 3 H. 6. 15. b. He that pleadeth a Record in delay as to prove the Plaintiff excommunicate must have it ready to shew but otherwise it is if he plead in bar In dilatory pleas both Defendants must joyne 12 H. 7. 1. A Plea in bar that is dilatory must be good to every common intent 8 H. 7. 9. One who is in Court ready to joyn with the Defendant may do it without processe As the Vouchee the Plaintiffs Lessor being prayed in aid of when the Defendant in a Replevin avoweth upon him or the Mesne when the Lord Paramount voweth upon him But Joynder in aid cannot be by an Attorney without processe 2 H. 6. 1. b. One who is a Debtor to the King of Record in the Exchequer if he be seen in the Court may be brought in to answer 2 H. 6 4. b. An assise of Darrein presentment was brought and it was pleaded in abatement of the Writ that the same Plaintiff had brought a Quare impedit against the Defendant for the same Church and the Court was of opinion that it was a good plea for the Quare impedit is of an higher nature for the right and possession and the Statute of W. 2. l. 5. saith that it may be in the election of one to have an assise of Darrein-presentment or a Quare impedit ergo not both And it was adjudged p. 15 Jaco that one cannot have two Quare Impedits of one Church for one avoidance Hutton f. 403. When the Law giveth a man severall remedies for a thing he cannot have both of them together as Littleton saith for then he should recover one thing twice which should be a double charge and a double vexation to the Defendant Co. Com. 145. a. as if I grant by Deed a Rent-charge to another the Grantee hath election to bring a Writ of Annuity and charge the person onely to make it personall or to distrain upon the land and make it reall but he cannot have both after the Grantee hath determined his election but this determination of election must be by action in
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
corrodit vistera textus a viperous exposition which should tear the bowels of the Text ibidem Coke l. 8. f. 1. 7. a. b. The better Expositors of all Letters Patents and Acts of Parliaments are the Letters Patents and Acts of Parliament themselves by construction and conference of all the parts of them together for optima Statuti interpretatrix est omnibus particulis ejusdem inspectis ipsum Statutum Injustum est nisi tota lege inspecta una aliqua particula proposita judicare vel respondere The best expounder of a statute is the statute it self all the parts of the same being looked into and it is an unjust thing One particular being propounded to judge and answer unless the whole Law be looked into ibidem in Dr. Bonhams case Coke l. 10. f. 24. b The better exposition of the Charter of the King is upon consideration of all the Charter to expound the Charter by the Charter it self and the Letters Patents in this case are the bowels of the Text and therefore all the parts of the Letters Patents should be considered and every part of it explained according to the true and genuine sense for verba chartae regi aeque portant suam expositionem For the words of the Kings Charter do equally carry their own exposition ibid. Divinatio non interpretatio est quae omnino recedit a littera Bac Max. f. 16. It is a divination and not an interpretation which leaveth the Letter As if I have a fee-farm Rent of ten shillings issuing out of White-acre and I reciting the same reservation do grant to I. S. the rent of five shillings to be received out of the aforesaid rent and out of all my Lands and Tenements in Dale with clause of distress Though there be an Attornment nothing passeth out of my former rent because for that it is against the words and the copulation of the words shew the taking of them in another sense but if I reciting that I seised of such a rent of ten shillings do grant five shillings to be received of the same rent it is good enough without attornment because percipiendum de to be received of may well be taken for parcella de parcell of without violence of the words but if it had been of the aforesaid rent it had been void vide ibidem But as Ployden saith f. 162. Exception Non est regula quin fallit There is no Rule but faileth and as hath been said the more reasonable and equitable rule is alwaies to be preferred when they encounter and meet in opposition as contrary to this is the rule of the Civilians Leges non verbis sed rebus esse impositas And Coke l. 11. 34. b. Qui haeret in littera haeret in cortice Lawes are not imposed upon words but upon things and he that sticketh in the letter sticketh in the bark or outside of the matter and not attaineth to the inside of the sense As by the statute of 27 E. 3. c. 1. It was provided that he that draweth one to the Court of Rome in a plea which was determined in the court of the King or of other things whereof judgment is given in the Court of the King c. to defeat the judgments given in the Court of the King shall have day containing the space of two moneths c. and if they come not within the meane time in proper person they shall be put out of protection c. and the question was moved in 30. E. 3. 11. If the Defendant appeareth pleadeth and be condemned whether he shall have the Judgement of a Praemunire given by the said Act but since in 39. E. 3. f. 7. Iudgement was given against the Bishop of Chicester who appeared although the letter of the Statute is that if they come not at the same day c. they shall be put out of protection and therefore a multo fortiori when the defendant in such case appeareth pleadeth and shall be found guilty he shall have Iudgement upon the said Statute 44. E. 3. 36. and yet it is out of the words of the Act which speake onely of a default for Qui haeret in littera c. So by the Statute of 25. E 3. the killing of his Master is adjudged Treason yet by construction is it extended to his Mistresse as it is holden in 19. H. 6. 47. And whereas by the Statute of 25. H. 8. house burners were deprived of Clergy and in the Statute of 5. 6. E. 6 there was no mention of that offence in particular but onely that the said Statute should stand in force concerning the tryall of offendors in another County yet by another sentence in the said Act that every clause and sentence in the said Act touching Clergy c. shall from henceforth concerning such offences remaine and be in full strength and virtue it was adjudged that the said clause should extend to all the Act of 25. H. 8. because by that construction such an hainous offence should not passe in effect without capitall impunity and that such Malefactors shall not be encouraged to burne not onely Houses but Villages and Cities And it is frequent in our Books that penall Statutes have been taken by intendement beside the letter to the end that they shall take effect according to the expresse intention of the makers of the Act to remedy the mischeife in advancement of Justice and suppression of hainous crimes Coke ibidem vide ibidem plura And though it is a Maxime that penall Lawes are to be taken it may be conceived of such as concerne inferior and not hainous offences Coke Com. 365. b. A man seised of Lands in fee levied a fine to the use of himselfe for life and after to the use of his wife and of the heire males of her body by him begotten for her Joynture und after he and his wife levied a fine and suffered a common recovery the husband and wife dyed and the issue male entered by force of the Statute of 11. H. 7. And it was holden that the entry of the issue male was lawfull and yet this case was out of the letter of the Statute for shee never levied a fine being sole or with any other after taken husband but is by her selfe with the husband that made the loynture but this case being in the same mischeife is therefore within the remedy of the Statute by the intendement of the makers of the same to avoid the dis-inherison of heires who were provided for by the said Ioynture and especially by the husband himselfe that made the Ioynture which as it was said was a stronger case then any set down in the Statute for Qui haeret in littera vide ibidem plura Coke com 241. a. If there be Lord Mesne and Tenant and the Mesne doth grant to the Tenant to acquit him against the Lord and his heires the Lord dyeth his wife hath the signiory assigned to her for the
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
words in a condition shal be taken out of their proper sense ut res magis valeat quam pereat Coke com 213. a. If one giveth Lands to two and the heires of their two bodies ingendred the Donees have joynt estates for life and severall inheritances for if one of the Donees hath issue and dyeth the other shall have all by survivor during his life but if the Survivor hath issue and dyeth then the issue of the one shall have the one moiety and the issue of the other the other moiety of the Land and shall hold the Land together in common and the cause why they shall have severall inheritances is for that they cannot by any possibility have an heire between them engendred and when the grant is impossible to take effect by the letter there the Law shall-make such constâ—uction as the guift by possibility may take effect Co. 83. b. If Lessor of an house for twenty yeares maketh a Lease for two yeares rendring rent and after granteth all his terme and interest to another if the Lessee atturne the Reversion shall passe and if no Atturnement be had yet the ieterest in the Reversion shall passe so as the Grantee shall have the Land after the two yeares determined for the grant of one shall not be adjudged void if to any intent it may take effect Coke l. 4. f. 53. b. If a Termor grant his Terme Habendum immediate post mortem suam the Grantee shall have it presently ut res magis valeat quam periat Noy Max. f. 16. So if a man make a Lease for ten yeares and after for twenty yeares the latter shall be a good Lease for ten yeares after the first is expired Ibidem A release of all Actions against a Prior and Covent shall be construed all Actions against the Prior for an Action cannot be brought against the Covent Coke l. 1. f. 76. Gardiner and Bredons case Tenant for life of Land the Remainder in taile Tenant for life and he in the first Remainder in taile joyne in a fine sur conusans de droite come ceo c. to another in fee who granted a Rent charge of forty pounds to tenant for life it was agreed by all the Justices that the fine levied by tenant for life him in the first Remainder was no discontinuance of the first Remainder in taile nor of the second because every of them did only give that they may lawfully give and no forfeiture in the case be cause the law which abhorreth all wrong shal conster it first to be the grant of him in the Remainder in taile and then the grant of Tenant for life ut res magis valeat quam pereat but if a Feoffment had been made by word then it is the surrender of Tenant for life and the Feoffment of him in the Remainder Ibidem Coke l. 1. f. 45 a. In 2. R. 3. 4. it is holden by Starky and others that if the Patent of the King may be taken to two intents good then it shall be taken more beneficially for the King but if it may be taken to one intent good and to another intent void then it shall be taken to that intent to make the grant good and not to that intent to make it void ut res magis valeat c. vide ibidem plura in Alton Woods case Coke l. 5. f. 8. a. In Cessavit where the Tenure is alledged by Homage Fealty and Rent and the Demandant counteth that in doing the said services he did cease it shall be taken by construction to such services onely of which a man may cease 6. H. 7. 7. as of Rent and not of Homage and Fealty and the reason of this is ne res destruatur least the thing should perish vide ibidem plura Ployd f. 197. b. Anthony Browne Justice said that it is an office of a Judge to expound the thing ut res magis valeat quam pereat and to make all parts of the Deed and intention of the parties also to agree together Coke l. 4. f. 4. If I grant to you that you and your heires shall distraine for a rent of forty shillings to wit within my Mannor of S. that by construction of Law shall amount to a grant of a Rent out of my Mannor of S. for if it shall not amount to a grant of a rent the grant would be of little force or effect if the Grantee shall not have but a nude distresse and no rent in him for then he shall never have an Assize of it and for that reason it hath been often times ruled that it shall amount to the grant of a Rent by construction of Law ut res magis valeat 3. E. 3. 12. c. Benedicta est expositio quando res redimitur a destructione Coke l. 4. f. 25. b. Blessed is the exposition when the thing is redeemed from destruction every Mannor which consisteth of Frank-tenements and Copy-holders hath two severall Courts the Court of Frank-tenements wherein the Suitors are Judges and is called the Court Baron and the Court of Copy-holders wherein the Lord or Steward of the Mannor are Judges and if all the Tenements escheate or the Lord release the tenure and service of his Frank-tenements yet the Lord may hold his Court of Copy-holds and make admittance and grant of them ne res destruatur it is a ground in Law verba debent intelligi ut aliquid operetur Coke l. 8. f. 24 words must so be understood that they must worke some thing and not be idle and frivolous in Edward Foxes case wherein it was resolved that a demise and grant upon consideration of fifty pound for ninty nine yeares amounted to a bargaine and sale for the said yeares for when a Frank tenement or tenement passeth by Deed indented and inrolled it is not necessary to have those precise words of bargaine and sale but words which amount to so much are sufficient as if a man covenant in consideration of mony to stand seised to the use of his Son in fee if the Deed be enrolled it is a good bargaine and sale and yet there are no words of a bargaine and sale but amount to as much Coke l. 7. f. 40. So if a man for mony alien and grant Land to one and his heires or in tail or for life by Deed indented and enrolled it shall amount to a bargaine and sale and the Land shall passe without any livery and seisin It is a ground in Law verba sunt accipienda cum effectu Coke l. 4. f. 51. a. b. Words are to be taken with effect as if a man hath in the right of his wife any estate in Fee-simple Fee-taile or for terme of life c. the Baron shall have all the arrerages as well before marriage as after the death of his wife by the Statute of 10. H. 6. 11. for though by the Common Law the Executors c. of the wife might have an Action
manerium and if there bee two distinct Mannors then shall they bee taken in the plurall number tota illa maneria that the grant be not void and 32. E. 3. A Fine was levied de maneriis B. and H. and the conclusion was quare praedictum manerium B. and H. ingressus est and good by averment that B. and H. were but one Mannor and though a Writ shall abate for false Latine because any one may purchase a new Writ at his pleasure yet in a grant it shall not because hee cannot purchase a new grant at his pleasure As 4. H. 6 f. 16. the Writ was Henricus dei gratia Rex Angliae Dus Heberniae whereas it should have beene Dns and for it in congruity the Writ did abate but in a Deed that should have beene good enough and so in a fine 9. E. 3. warranty was made in a fine eidem galfrido uxori suae where that should have been iisdem and yet good vide ibidem plura Co. l. 11. f. 3. and Coke com f. 146. ab but because such exceptions doe properly appertaine to Writs Deeds and Fines which have heretofore been composed and levied in the Latine tongue and that by the Act of 9. April 1651. it is enacted that all Patents commissions and all proceedings whatsoever in any Courts of Justice within the Common-wealth of England and which concerne the Law and administration of Justice be made and framed into the english tongue I will cease to heape more cases upon this rule they being chiefly in use for preterite Deeds conveyances and proceedings though not altogether uselesse in our English language for it also hath its grammaticall constructions and sometimes abreviations and therefore it is also in the above said Act enacted that mistranslations or variation in forme by reason of Translation or part of proceedings already begun being in Latine or part in English shall bee no error or avoide any proceedings by reason thereof Sect. 3. THe Law hath little relat ionto Rhetorick and is too strict an argumentative for that copious various and tropicall art Ornari res ipsa negat contenta doceri Doctum genus in doctorum hominum ad doceberniam vix docti But like ruggid and knotty tymber rejects the rhetoricall plaine and outward ornament which moved the critticke Erasmus to deride it and the civilian Hottaman to despise it not apprehending the depth and profundity of it for the Law as Sir Edward Coke is a deep well out of which every one drawes according to the strength of his understanding Cok. com f. 7.1 a. he which reacheth deepest seeth the admirable secrets of the Law which though in the beginning it seemeth difficult yet when the student diveth to the depth it is delightfull and therefore as the same Author in another place saith The generous student Cok. com f. 5. a. ought not to bee discouraged when he meeteth with knotty cases nescit enim generosa mens ignorantiam pati but will proceed on his reading with alacrity to know how to worke into with delight those ruffe Mines of hidden Treasure Coke com f. 235. to which worke as he also saith the knowledge of the liberall arts is requisite especially the art of Logick to labour in that various and intricate Labyrinth for it teacheth a man not onely by just argument to conclude the matter in question but to discover between truth and falsehood and to use a good method and reasonably to speake to any question for it is nothing else but ars rationandi the act of reasoning Coke com f. 344. h. and then wee are said to know the law when wee apprehend the reason of the law from whence arise these grounds and maxims and first from notations which by the consent of all Writers appertaine to Logick Notationes sunt quasi verae rerum notae Fons log and Bracton L. 4. c. 20. Ideo imposita sunt nomina ut demonstrent voluntatem dicentis utimur notis vocis ministerio notations are as it were the true notes of things sor therefore were they imposed that they might demonstrate the will of the speaker and wee use them as notes in the ministry of our Language as Socage is servitium socae i.e. carucae the service of the Plow because that the word soca was used for the Plow and the name of the court of Pypowders was derived from the dusty feet of the commers markets and faires being most frequented in Summer Lam. Arch. so religious houses were called monasteria of the solitarie life therein led which in latter daies was nothing lesse quia as one pleraque monasteria nihil minus sunt quam solitudines Dod. so the feudists in the civill law deduce homagium from hominium for by that name hee doth professe himselfe his man and Client And such notations and etymologies are not to be wrested but must bee answerable to the sound of the words and applied to the sense of which it is said by Coke com f. 68. b. that the right interpretations and etymologies of words are necessary which not only demonstrate their native conceptions but from them often produced arguments which are frequent among the Civilians as well as by the common Lawyers as Cicero arguing for Opimius then Consul useth this notation si Consul est qui consulit patria quid alius est Opimius Ployden 343 b. Testamentum est testatio mentis for of those two words is it compounded and there is no other testation of the Testators mind here but for the twelve Acres in Rigdens case So Cok l. 8. 37. a. a Barrator is derived of two legall words bar which signifieth the bar in Court where causes are debated and retium which signifieth a crime and offence because a common barrator is chiefely an offendor in moving and maintaining of quarrels at barres in Courts and Coke l. 10. f. 128. a. reditus dicitur a reddendo quia retro it to wit to the Lessor or Donor and that is the reason that the Rent so reserved is not due before the day of payment because it is to be rendred and restored of the issues and profits vide Yet as Doderidge such arguments are not to be used at all times and occasions but when necessity requireth the same or apt consequence doth offer a fit occasion or rather as Coke l. 7. f. 27. b. Calvins Case Arguments drawn from Etymologys are too weake or too light for Judges to build there Judgments on yet when they agree with the Judgment of the Law Judges may use them for Ornaments From the Predicable GEnerale nihil ponit generale nihil certum implicat Cok. l. 2. f. 33.34 in Doddingtons Case a generality determineth nothing and a generality implyeth no certainty as if a common person be bound to devise or grant all his Lands which he hath within the tenure of I. B. in W. the Obligor may say that he hath no Land there for
was incertaine when the Lessee would doe the act to make the Lease to begin and in the other it was incertaine when the coverture would bee dissolved for a lease certainely lymited might begin and determine upon uncertainety well enough Ployd ib. If a man maketh a Lease for twenty one yeares if I. S. live so long this is a good Lease if I. S. so long live yet it is certaine in incertainty for the life of I. S. is incertaine Coke com f. 25. b. It is a Maxime in the Law that no distresses can be taken that are not put into certainty nor can be reduced to any certainty for id certum est quod certum reddi potest as the Lord cannot distraine them which hold their Tenements in Frankalmoine if they will not doe such divine service because it is not put in certaine what service they shall do neither can it bee reduced to a certainty for upon an avowry damages cannot bee recovered for that which neither hath certainty neither can bee reduced to any certainty and yet in some cases there may bee a certainty in uncertainty As a man may hold of his Lord to sheare all the sheep depasturing in his Mannor although the Lord hath sometimes a greater number and sometimes a lesser number yet this is certaine enough the incertainty being referred to the Mannor which is certaine and the Lord may distraine for this incertainty Coke com f. 96. a. Incertainty may bee reduced to a certainty by matter ex post facto Ployd f. 6. a. b. Raingers case As a Lease for yeares rendring for every acre twelve pence though the number of Acres bee not certaine by the Lease yet by admeasurement or other triall may the rent reserved bee certainely knowne by which he may bring his action of debt So if one gives two Acres to one Habendum one for life and the other in fee it is incertaine in which he shall have the fee and which for life yet if after hee make Feoffement of one acre it shall bee said to have fee in the other ab initio so if one sell W. Acre and B. Acre for life the remainder of one of them in fee it is incertaine which Acre hee in the remainder shall have but if hee licence the Tenant for life to cut downe the trees in white Acre then hee shall bee adjudged to have the remainder of that Acre ab initio So 14. H. 8. f. 17. A grant of a terme upon condition that the Grantee shall obtaine the favour of the Lessor and pay so much as I. S. should arbitrate was good when the condition was performed and the second grant adjudged void So 17 E. 4. f 1. in trespasse for corne taken there the Defendant the Plaintiff had bargained agreed that the Defendant should go to the place where it grew and see the corne and if it pleased him upon the sight that then hee might take it paying to the Plaintiff forty pound for every Acre and it was holden a good contract notwithstanding the incertainty and quantity of the Corne and of the grosse sum shall bee paid for it because upon the circumstance the certainty might appeare Ployd ibidem Dyer f 91. b. If I bargaine with you that I will give you for your Land as much as it is reasonably worth and it is referred to the judgement of a third person hee shall ajudge it and then it is good so if I sell trees which then may easily be spared and refer the judgement of the sparing to a third person if hee give judgement of it it is good enough because by him it is reduced to a certainty with the Vendors consent In our law the time the estate the thing and the person not being sufficiently expressed by necessary coherence and relation to matter precedent they are sometimes made certaine enough first for the time if I. S. is bound to mee in twenty pound upon condition that I infeoffe him of B. Acre that then hee will pay mee ten pound if I infeoffe him presently after hee ought to pay the ten pound notwithstanding there is no time limited when it should bee paid for Perkins puts the rule if a condition hath a relation to the Act precedent and no time is limited when it shall bee done it ought to be done when the Act precedent is done Secondy for the thing though it bee put incertainly yet the communication precedent makes it certaine Dier 42. a. where one was bound to warrant I. G. and doth not shew what thing hee should warrant the Law shall make construction that hee should warrant the land of which communication was made Thirdly for the estate though it bee uncertaine yet sometimes it is made certaine by the matter precedent as steward-ship was granted for life and afterwards an annuity was granted for the exercise of that office without declaring what estate hee should have in the annuitie and resolved that he should have the annuity for life because he had the Office for life Coke l. 8. Fourthly for the person the consideration sometimes ascertaines the person and therefore if lands be given to one by deed Habendum sibi una cum filia donatoris in frank marriage this shall enure to both because the feme is causa donationis and by devorse shee shall have the whole Land and shall bee given together to the man for the advancement of the woman Dier 126. a. A man by intendment of Law the Land and the woman deviseth that his lands shall bee sold for the payment of his debts and doth not say by whom they shall be sold by his Executors because they are lyable for the payment of his debts Licet id certum est quod certum reddipotest id tamen magis certum est quod de semetipso est certum Coke l. 9. 47. a. The Patents of the King ought to be extended certainely to the thing of which the Patentee will take advantage as 2 R. 3. 7. If the King grant to me that I shall not be High-Sheriff without shewing of what County it is void for the incertainty Quia concessio per Regem oportet fieri de certitudine but if the grant was that he should not be Sheriff of such a County there such a grant is good Ployd f. 395. a. If a Lease be of the mannor of Sale in Dale which he had by descent of the mother and he had the mannor of Sale by purchase and not by descent of his mother in this case the Lessee shall have it because the mannor of Sale in Dale is enough without further certainty expressed and his saying that he had by descent is not requisit in that it was sufficiently certaine before for it is rather super-abundance then certainty so M. 2. E. 4. f. 27. If one release all his right in white Acre in Dale that he had by descent but had it by purchase there he shall not avoid the release by saying
incurreth for which day the husband maketh an acquittance supposing the receit of the rent for the said yeare last past and notwithstanding that acquittance his servant distraineth for the rent of half a yeare of the first year being behinde but though the last arrearages before the last terme were due to the feme dum sola fuit yet Harper and Dyer were of opinion that all the arrearages were discharged by the acquittance of the last terme because it is an antient principle That all the arrearages are discharged by the acquittance of the last terme and we ought not to deny principles Coke l. 10. f. 40. a. No man ought to dispute against recoveries the legall pillars of common assurances because we are not to dispute against principles and which St. Germins Doctor and Student c. 26. approveth to binde both in Law and conscience and by the Statute of 23. Eliz. C. 4. That for the avoyding of the dangers of assurances of Lands and the advancement of common recoveries it is provided that any common recovery shall not be avoided for any want of forme in words and not in matter of substance And Sir James Dyer then chiefe Justice did with great gravity and some bitternesse reprove an utter Barrister who rashly inveyed against common recoveries not knowing the reason and foundation of them and said that he was not worthy to be of the profession of the Law who durst speake against common recoveries which were the sinews of assurances and inheritances and founded upon great reason and authority Mary Portingtons Case vide ibidem â—lura Coke Com. f. 343. a. Principium est quasi primum caput a principle is as it were the first head from which many cases have their beginning which is so strong as it suffereth no contradiction and therefore is it said in our Books that ancient principles of the Law ought not to be disputed 11. H. 4. 9. 2. As that of every Land there is a fee-simple and that every Land in fee-simple may be charged in fee by one way or other Littleton ibidem Cessante statu primitivo cessat derivativus Coke l. 8. f. 34. a. The primitive state ceasing the derivative doth cease As if Tenant in taile maketh a lease for lives according to the Statute of 32. H. 8. c. 28. and then dyeth without issue the lease being derived out of the Estate taile shall not continue longer than the Estate taile against the opinion in 33. H. 8. 48. Dyer which was granted by the whole Court Derivativa potestas non potest esse major primitiva Noy max. f 4. A derivative power cannot be greater than it fâ—om which it is derived As the Attorny of one that is disseised cannot make claime of the Land it the disseisee durst have gone to the Land Littleton The Bayliff of a disseisor shall not say that the Plaintiff never had any thing in the Land for the Master himselfe shall not have that Plea because he is not Tenant of the Free-hold 28. Ass Pl. 4. The Servant shall be estopped to say the Free-hold is his Masters by recovery against his Master though the servant himselfe be a stranger to it for he shall not be in better condition tâ—an he whose right he claimeth 2. E. 4. 16. He that gaineth a thing on high shall neither have gaine nor losse thereby Noy Max. f. 11. As if one Joyn-tenant maketh a lease of his Joyntee and dyeth the heire which surviveth shall have the reversion of his Joynture but not the rent because he cometh in by the first Feoffor and not under his companion Dyer 187. So when the Husband is Lessee for years in the right of his wife reserving a rent if he dyeth the wife shall have the residue of the terme but not of the rent ibidem An executor recovereth and dieth intestate Administration of the goods of the Testator is committed to I. S. I. S. shall not sue execution upon this recovery Dower cannot be assigned reserving a rent or with a remainder over for shee is in from the husband and not from him who assigneth Dower Finch f. 13. Quod dignius est prius est minus digno The Law preferreth every thing according to its worthinesse Ployd f. 169. a. and therefore is every thing placed in Writs by the rule of the Register according to its dignity as the Messuage is placed before Lands the Land before Meadow and the Meadow before Pasture and the like and this dignity is taken from necessity for to have an house to inhabite and to defend his body from tempest and violence of weather is more necessary than to have Land to plow it for bread and also to have Land for bread is more necessary than to have Meadow for Hay to feed Cattell and likewise to have Meadow for Hay which will serve all the yeare is more necessary than Pasture c. ibidem And so in the Register the entire thing which is more worthy shall be demanded before the moyety part or parts As in a Replevin if it be of two beasts the one quick the other dead the living thing shall first be demanded Register Quod prius est verius est quod prius jure est potius est tempore Coke Com. f. 347. b. As in a remitter the Law preferreth the first and antient right before the latter and a sure right though it be little before a great estate by wrong which jumpeth with the rule of the Civill Law Quoties duplici jure defertur alicui successio repudiato novo jure quod ante defertur superest vetus Paulus 17. quest As if Tenant in taile discontinueth the taile and after disseiseth the discontinuee and so dyeth seised This is a remitter to the tenant in taile because the Law shall put and adjudge him to be in by force of the tayle which is his antient title for if he should be in by force of the descent then the discontinuee may have a writ of Entry sur disseissin in the per against him and recover the tenement and his damages but being in by force of the taile the title of the discontinuee is quite nullified Qualis causa talis effectus Ployd f. 292. a. Things are construed according to that which is the cause thereof as if an Executor assigne Auditors to one who was accountant to the Testator and the Auditors finde him in arrearages the Action of debt which the Executors shall have shall be in the detinet onely for the debt shall be in them as Executors and have respect to the foundation and cause 11. H. 6. f. 16. by Paston and Newton So if one have a villaine for years as Executor if the villaine purchase Land and the Executors enter the Land shall be to the use of the Testator and it shall be assets in his hands because the villain who was the cause of it was to that use Ibidem Pas 32. H. 8. E. villenage 146. Ployd f. 524. 525.
b. a. If Tenant for years of Land granteth a rent-charge to another for the life of the grantee the grantee shall not have an estate of Frank-tenement in the rent in that he cannot have an estate of Frank-tenement derived out of the Chattell reall but he shall have the rent during all the years though the Lessee had forty years in the Land for terme of life is greater then years and therefore the Grantee shall have all the rent for all the years if he shall live so long And f. 525. b. An Executor cannot devise a terme to another which he hath as Executor for so soone as the Executor is dead the terme is to the use of the first Testator and his Executors have it as Executors to the first Testator and to his use and not as Executors of the last Testator nor to his use for the Executors have them by relation as immediate Executors to the first Testator A. Covenanteth with B. and his Executors to make a lease of white acre before Michaelwas and the Covenantee dyeth before and A. maketh a lease to his Executor the lease shall be to the use of the Testator and assets in the Executor for the Covenant which was the cause of the Lease came to the Executor in right of the Testator and to the same use shall the lease be Ployd f. 292. a. Chap-mans case Cessante causa cessat effectus Ployd 268. Sir John Radcliffs case the cause ceasing the effect also ceaseth An office was found that after the decease of Robert Earle of Sussex and Mary the Countesse his mother certaine Lands did descend to Sir John Radcliff Knight as Son and Heire male of the body of the said Robert engendred and the body of the said Mary and Sir John Radcliff Knight was then of the age of eighteen years before the finding of the office and the Lands were holden of the King and Queene by the tenth part of a fee of Knights service in Capite And when Sir John Radcliff became of full age he prayed his livery but the Court of wards required of him for the Queene the valew of his marriage but it was alleaged that because he was made Knight before the title of the Wardship accrewed and the Wardship was due to the Lord in respect of his imbecility to doe the service of a Knight and that the making him a Knight did admit him able to doe the service of a Knight his body ought not to be in ward for defect of such ability for the cause ceasing the effect also ceaseth and that if his person was not in Wardship no marriage nor value for it shall be due to the guardian and so was it adjudged by the Court contrary to Magna Charta c. 4. which was said to be made for the advantage of the Lords vide ibidem plura Coke Com. 312. a. Cessante causa vel ratione legis cessat lex The cause and reason of the Law ceasing the Law also ceaseth as at the common Law no aid was grantable of a stranger to an avowry because the avowry was made of a certaine person and now the avowry being made by the Statute of 21. H. 8. upon no person therefore the reason of the Law being changed the Law it self is also changed and consequently in an avowry according to that act aid shall be granted to any man vide ibidem plura Coke Com. f. 76. a. Cessante causa cessat causatum As if the Lord after he hath the Wardship of the body and the Lord doth release to the infant his right in the signiory or the signiory descendeth to the infant he shal be out of ward both for the body and the Land for he was in ward in respect he was not able to doe those services which he ought to doe to his Lord which now are extinct for the cause ceasing the thing caused ceaseth and there must be a tenure continuing or no Wardship So if the Conusee in a Statute merchant be in execution and his Land also and the Conusee release to him all debts this shall discharge the executiâ—n for the debt was the cause of the execution and of the continuance of it untill the debt be satisfied therefore the discharge of the debt which was the cause discharged the execution which was the effect Coke Com. f. 76. a. So if the heire female within the age of fourteen years be in ward and after the age of fourteen years expired the Lord by the Statute of W. 1. c. 22. hath two years more to tender her a convenable marriage but if the Lord marry her within the two years her husband and shee shall prefently enter into the Lands for the cause ceasing the effect also ceaseth Coke ibidem 7 5. b. The King granteth an office to one at will and ten pound fee during life pro officio illo now if the King put him from his office the fee shall cease 5. E. 4. 8. b. The executor or husband after the death of the wife guardian in socage shal not retain the Wardship for the guardian hath it not to his owne use but to the benefit of the heire and the executor or husband hath not that affection which the testator or wife had which was the cause that the Law giveth them the Wardship 7. Eliz. 293. b. If a stroke be given the first day of May and the King pardon him the second day of May for all felonies and misdemeanors the party smitten dyeth the third day of May so as this is no felony till after the pardon yet the felony is pardoned for the misdemeanor is pardoned and therefore all things pursuing are also pardoned 13. E. 401. If two coparceners make a lease reserving a rent they shall have this rent in common as they have the reversion but if afterwards they grant the reversion excepting the rent then they shall be Joyntenants of the rent Finch mono. f. 9. It is no principall challenge to a Juror that he hath married the parties mother if shee be dead without issue for the cause of favor is removed 14. H. 7. 2. The King disparking the Parke the office of the keeper is determined and all such offices as are presumed in Law to be for the commoditie of the King as well as the Patentee and if one granteth a Stewardship of a mannor and dismembreth that mannor the office is determined if a corporation granteth the office of a towne-clark and surrendreth their patent to be renewed all their offices are determined Huttons Reports Upon a divorce the woman shal have the goods given in marriage not being spent for the goods were given in advancement of the woman and therefore it is reasonable that shee should have them in that the cause and consideration of that gift is now defeated for the cause ceasing the effect also ceaseth Dyer f. 13. p. 61. Coke l. 5. f. 59. b. Vaughans case The originall cause of the amercement being pardoned the
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
shewing any license of alienation to discharge himselfe for the purchase of those Lands Exitus acta probat acta exteriora indicant in teriora animi secreta Coke l. 8. f. 146. b. when entry authority or license is given any one by the Law and he doth amisse he shall be a trespassor from the beginning as the Law giveth authority to any one to enter into a common Hostlary or Taverne to the Lord to distraine to the owner of the soile to distraine for Damage-feasant to him in the reversion to view whether wast be made to the commoner to enter into Land to see his Cattell but if he which entereth into a Taverne doth trespasse as if he import any thing or if the Lord who doth distraine for rent or the owner for Damage-feasant work or kill the distresse or he who entereth to see wast doth breake the house or remaine in it one whole night or if the Commoner cut downe a tree in these cases the Law shall adjudge him to enter to that intent and purpose and because the act which demonstrated it is a Trespasse he shall be accounted a Trespassor from the beginning so if a purveyor take my Cattell by force of commission for the hostle of the King it is lawfull but if he sell them in Market the first taking is tortious 18. H. 6. 19. b. Coke l. 9 f. 59. Lambes case Any one shall be convict of a publication of a Libell if he knowing it to be a Libell write but a copy of it unlesse afterwards he can prove that he delivered it to a Magistrate to examine it Coke Com. f. 100. a. The mesne is to acquit the Tenant of any manner of services that any Lord paramount will have or demand of the Tenant and if the Tenant be distrained without default of the mesne yet if the mesne doth not afterwards put his own beasts into the pound instead of the beasts of the Tenant the distress shall be said to be in his default and the Tenant shall recover his damages and costs vide ibidem plura Destinata tantum pro factis non habentur Dod. E. Lawyer f. 143. Things destinated to an end not being applyed thereunto alter their nature and become of another consideration as if a man cut down my Timber Tree and square it of purpose to make a Beam for an house I who am the true owner may seise the same but if it be laid in the building it may not be seised by the owner although the building be not perfected for now it becometh parcell of the house or building but if a man prepare all materialls for building upon his Land and is ready to build therewith but dyeth before it be erected those materialls shall go unto the Executor or Administrtaor and not unto the Heire who should have had them had they been layen in the buildings and it may not be seised by the owner although the building be not perfected for now it becometh parcel of the house or building but if a man prepare all materials for building upon his Land and is ready to build therewith but dieth before it is erected those materials shall go unto the Executor or Administrator and not unto the Heire who should have had them had they been layen in the building because they were destinata tantum quae profactis non habentur intended onely which are not taken for acts Qui adimit medium dirimit finem Coke Com. f. 161. a. Sometimes the Law respects the beginning and sometimes the end and sometimes the means to the attaining it As to turne a streame is running to a Mill is a disseisin to the Mill it selfe and to disturbe one from entring and manuring his Land is a disseisin of the Land it selfe so rescous and replevin is a disseisin to the Lord because by them the Lord is disturbed from comming to his Rent and so also is enclosure because the Lord cannot breake downe Gates or breake downe the enclosures to take a distresse and all these are disseisins after an actuall seisin had and when the rent is behinde otherwise not any of them Finis sinem litibus imponit Ployd f. 357 a. Many times in our Law the name and denomination of a thing is drawn from the finall cause as a Fine used for the assurance of Land dicitur finis quia finem litibus imponit because it putteth a period and end to suits Dod. E. Lawyer f. 143. and therefore as Ployd f. 357. a. Fines have been of very long antiquity and as Long as any Court of Record hath been and were at the common Law the more stronger assurance because they carry in themselves the end of the Law which is repose for the Law hath no other end but repose for it was ordained to cease contention and to make peace as the Statute of 17. E. 1. sheweth that therefore they were called Fines quia finem litibus debent imponere imponunt and therefore in the commencement of a Fine there is concord and peace haec est finalis concordia and the chiefe cause is by which it maketh peace because it bindeth all strangers unlesse it be those which have defect if they enter not their claime within a yeare and a day and Brown said that a Fine for its haughtinesse and for the peace and repose that it bringeth it may be termed finis Legis fructus Legis exitus Legis effectus Legis the end of the Law the fruit of the Law and the effect of the Law and after the Plea of non-claime of Fines was made no bar by the Statute of 34. E. 3. c. 16. because the people in those troublesome times of Warrs could not attend to know the Fines and make their claimes Fines did lose their force and were in effect but Feoffments of Record which was the occasion of great contention among the Subjects of the Realme whereupon the Statute of 4. H. 7. was enacted to reforme them as by the preamble appeareth by which five years after Proclamations made upon the Fine are given to him that right hath to make his claime or pursue his action whereas the common Law gave him but a yeare and a day and also if a Fine be levyed without Proclamations or without so many as the Statute requireth then the Statute of non-claime doth extend to such a Fine Coke Com. 262. a. by which Statute the antient strength of Fines is renewed and made to be as they were heretofore the finall end and conclusion of all strifes and debates as the Statute phraseth it From the effests EVentus est qui ex causa sequitur dicitur eventus quia ex causa evenit the event of a thing is that which followeth the cause and it is called an event because it cometh from the cause Coke l. 9. f. 81. b. Agnes Gores case Who did secretly put poyson into an electuary which one Martine the Apothecary had made with an intent to
compellable to pay the mony within an houre neither may he deferre the payment for seven yeares but the time must be adjudged by law Ib. So if I prescribe to have common by viâ—inage in such a village namely every yeare after the Corne is severed and carried away to put my beasts into the field and all the terr tenants of the village have carried away their corne and hay except one man onely the law shall adjudge whether he had sufficient time to carry away his corne and hay when his neighbours did carry it away Ibidem by Starky and Fairfax and so in the case before the discretion of the Judges ought to measure the time and surely his opinion seemeth reasonable unto me though I dare not affirme it to be Law for every mans businesse ought to be rated by a convenient time Fulb. l. 1. f 14. a. So Coke l. 3. f. 28. b. Whereas by the statute of 34. and 35. H. 8. of wils and the statute of 32. H 8. of wills shall be expounded that the King shall take for his full part c. of all such Mannors and Lands as shall by any meanes descend or come by descent c. immediately after the decease of the same devisor c. It was said that the word immediately shall not have a strict construction that iâ— ought to bee done in ipso articulo temporis in the same instant of time but shall bee satisfied if it be done in convenient time as in 18. E. 4. 22. If a man be bound to make an obligation immediately yet hee shall have convenient time to make it Ibidem And by the civill law when no day of payment is limitted when the Venâ—ee is to pay his money c. the law doth limit a time and assigne to the pâ—rty charged with the payment the space of threescore daies Fulb. f. 14. l. 1. a. Quam longum debet esse rationabile tempus non definitur in jure sed pendet ex discretione justiciorum Coke cam f. 56. b. A reasonable time shall be adjudged by the discretion of the Judges before whom the cause dependeth As if a man be seised of a Mesuage in fee simple fee taile or for terme of life who hath certaine goods within the same house and maketh his Executors and dieth yet the executors shall have free entry egresse and regresse to carry out of the same house the goods of their testator by a reasonable time which reasonable time shall be adjudged by the discretion of the Judges And so it is if the Lessoroust his Tenant at will he shall have free entry egresse and regress into the said house by reasonable time to carry away his goods and Vtensils So also is it of reasonble fines customes and services upon the true estate of the cause depending before them for reasonablenesse in these cases belongeth to the knowledge of the law and therefore to be decided by the Justices and this being said of time the like may be said of things incertaine which ought to be reasonable for nothing that is contrary to reason is consonant to law ibidem Proprietas temporis fingenda est secundum subjectam materiam Reg. I. C. The propriety of time is to be feined or fitted according to the subject of the matter As if one deviseth by will in writing land to one and his heires and after in another clause he deviseth out of that Land a rent charge to one and his heires that shall be good and the rent in construction of law shall be taken to be first devised though it be last in words Ployd f. 541. a. So if one deviseth a terme for yeares to his son and that the wife shall have it during the sons minority this is first a devisere the wife and afterwards to the son when he commeth of full age vide ibidem plura Qui male agit odit lucem Coke l. 7. f. 66. a. and therefore it was resolved by all the Justices and Barons of the Exchequer that an arrest in the night was lawfull as well at the suite of the Subject as the suite of the King for the Officer and Minister of Justice ought to arrest him when he can finde him for otherwise peradventure he shall never finde him for he that doth evill hateth the light and if the Officer doth not arrest him when he findeth him and may arrest him the Plaintiff shall have an action upon the case and shall recover all his losse and damages and it is like unto the case for Damage-feasant and therefore one may distraine in the night or otherwise peradventure he shall not distraine vide ibidem in Mackallyes case He that doth evill hateth the light quia nocte latent mendae because offences are hidden in the night and therefore as the Civilians fur diurnus differt a nocturno a nocturnall theife differeth from a diurnall and receiveth a different and more greivous punishment with which the common Law accordeth for he that breaketh a dwelling house in the night although he carrieth away nothing committeth felony and burglary and by the Law is deprived of Clergy and suffereth death without mercy whereas if it had been committed in the day he had been capeable of mercy and clergy Qui male agit odit lucam omnia delicta in aperto leviora funt Coke l. 8. f. 127. a. He that doth evill hateth the light and all open offences are the more lightly to be punished as a Forrainer who keepeth an inward shop is a greater offender then he that keepeth an open Shop for hidden places and corners are more dangerous and offensive for there they may use deceit and not be subject to the search and therfore if a forrainer which hath an open Shop shall forfeit forty shillings he that is a Forrainer and offender in secret places is worthy to forfeit five pound for it is the rule of Law and reason quod clam delâ—nquens magis punitur quâ—m paâ—am he that privately offended shall be more punished then he that offendeth openly Tempora mutantur nos mutamur in illis Coke l. 6. f. 78. Times and seasons are changed and so in them are we as at the first the Leases were distributed in decurias or decennas and therefore were called decennarij and out of every ten one of them was called capitalis plegius the Cheife pledge and every of them were pledges for another and at this day in some places is called the Tithingman and in Yorke-shire Tenmantale in respect of the other inferior pledges so as the returne of the Constable or the presentment of the Jury doth not make a man a cheife pledge but the times are changed and the true institution of this Court is vanished vide ibidem Bullens case At the common Law upon a Fine the party had a yeare and a day to make his claime but now by the Statute he hath five years and if the disseisor had continued a year and day
in possession by the antient Law the entry of the disseisor for his negligence had beeâ— taken away which now is onely by descent many aâ—â— continuall are the mutations of the Law according to the changes of the time For the rule and ground holdeth quod perpetua lex est nullam begem humanam ac positivam esse perpetuam that it is a perpetuall Law that no humane or positive Law is perpetuall Bac. Max. f. 70. Tempus edax rerum Coke l. 3. f. 21. A. maketh a lease for years to B. and when the Terme is ended the remainder to C. the reversion is good for it is certaine enough that every terme shall end for time is the consumer and divourer of things Distingue tempora concordabis leges the times being distinguished the Law will be reconciled Coke l. 9. f. 16. b. The King by the Statute de bigammis 4. E. 1. when the heire was of full age had nothing but primam seisinam capiendo exitum the profits of the Land in effect for one yeare but could not endow the Feme because after the Heire was of age he was not guardian and for that reason he could not endow the Feme at the common Law no more then guardian in chivalry might who though after the Heir was of full age did hold the Land further for the value of the marriage no Writ of dower did lye against him because he was not guardian yet afterwards by the Statute de praerogativa regis 17. E. 2. the King had power to endow the Feme although the Heire were of full age si vidua illae voluerint so as the Statute leaveth it to the election of the Feme whether shee will be endowed in the Chancery or at the common Law so as by distinguishing the times the difference of those Laws are apparently agreed and reconciled Omnia tempus habent habenâ— sua tempora tempus Coke l. 10. f. 82. a. All things are subject to time and time it self hath also its times as by the Statute of 34 H. 8. three severall Times ought to concurr in a devise whereby the King may have the value of the third part the first is tempus habendi every person having the 2d is tempus tenendi holding of the King the third is tempus disponendi may â—ive and dispose as if a man be seised of one acroâ—â—f Land in fee in chiefe by Knights service and of two other acres in fee holden in socage and the Tenant infeoffe his youngest Son of the acre holden in chief and of one of the other acres to have to him and his heirs and afterwards purchaseth Lands holden in socage he may devise all his Lands newly purchased holden in sooage because he had no Lands holden of Knights service in Capite at the time of the devise for the acts have made a conjunction of the Lands which the Tenant holdeth in socage with the Land which he holdeth of the King by Knights service in Capite so as when the Tenant hath conveyed the Land holden in Capite to his youngest Son now when he made his Will of the Lands so newly purchased he had no Lands holden of the King in Capite at the time of the devise and the Statute restraineth only those Lands in socage which he had at the time of having of the Lands holden in Capite vide ibidem plura in Loveys case For Judicis officium est ut res ita tempora rerum Quaerere quaesitâ— tempore tutus eris A Judges part it is to ponder things with time And by the square of time sure Judgment so to finde Coke Com. f. 202. a. If a rent be granted payable at a certaine day and if it be behinde and demanded that the Grantee shall distraine for it in this case the Grantee needeth not to demand it at the day but if he demand it at any time after the day he shall distraine for it for the Grantee hath election in this case to demand it when he will to inable him to distraine But upon a Lease for years reserving a rent upon condition that if the rent be not paid at Michaelmas or within one and twenty dayes after that then he may re-enter the tenant is not bound to pay the rent or tender the mony before the last instant of the last day but if he do not then the Lessor may re-enter and have the Land and the rent also but if the Lessor be not at the time there to receive the rent he cannot re-enter though he demand the rent before Brook Intender 41. unlesse before the Lessee meets the Lessor upon the Land and tender the Rent on the same day Coke Com. f. 22. a. Ployd f. 392. 393. a. Where a thing is referred to a time which declareth certainly if it be mistaken all shall be void as Trin. 7. E. 3. 26. One bringeth a Writ and reciteth that it is contained in the Articles made in the time of Edward the second and declared further according to the statute and the writ was abated by award for that those Articles articuli super chartas C. 9. were made in the time of Edward the first So Tr. 18. E. 3. f. 25. A statute Merchant was made to be paid in the sixteenth yeare of E. 3. and the party sued execution and the Writ supposed the sum to be paid in the fourteenth yeare of E. 3. and by the suit the Feoffee was outed whereupon he sued a Writ of error in the Kings Bench and the writ was abated and it was said that the time declared certainty for it might be that there were two statutes payable at diverse severall daies and therefore the day of payment was materiall ibidem So if a defeasance be made of a statute which reciteth it to be made the tenth day of May where it beareth date the first day of May the defeasance is void for the misprision of the time for the law saith that it may be that there was two statutes the one bearing date the first day and the other the tenth day vide ibidem plura in the Earle of Leicesters case A loco from the place LOcus pro solutione reditus aut pecuniae secundum conditionem dimissionis aut obligationis est stricte observandus Coke l. 4. f. 73. a. in Burchers case The place for the payment of money or rent according to the condition of a Lease or obligation is strictly to be observed As if a common person maketh a Lease of Lands in R. reserving a rent to be generally paid at such a feast upon condition of re-entry if it be not then paid the demand must be upon the land for the land is the debtor and therfore that is the place of demand appointed by the law and if there be an house upon the land he must demand the rent at the house and not at the back doore but at the fore doore because the demand must be made at the most notorious
f. 13. a. If two four or more men being severally seised of land joyne in a recognizance all their lands must be equally extended because they are in an equall condition and case 26 Assi Pl. 37. Now custome hath created inheretances in copy-holds and that the lands shall be descendable the law doth direct the descent according to the Maxims and rules of the common law as incident to every estate descendable Coke l. 4. f. 22. So now uses have the reputation of inheritances descendable the common law shall direct the descent of those and that there shall be possessio fratris of an use as of other inheritances at the common law 5. E. 4. 7. And of lands in Burrough English the use shall descend to the puisne and now also these uses being turned into estates shall be determined in all respects as estates in possession 23. H. 8. Finch Nomot But this difference is put between inheritances in copy hold lands and inheritances in uses in that such câ—stomary inheritaners shall not have by the Law any other collaterall quallities which concerne not the descent of inheritance which uses and other inheritances at the common law have as tenancy by courtesie or asseâ—s to charge the heire in an Action of debt upon an obligation made by his Ancestor for him and his heirs Coke l. 4. f. 22. a. or descent to take away entry as if a copyholder in right of his wife surrender it to the use of another in see and dieth that shall not be any discontinuance to the feme but that she and her heires may enter Ib. f. 23. Neither shall the feme of customary tenant be endowed unless it be by speciall custome Ib. f. 30. b. and generally copy-hold estates shall not have such qualities which estates at the common Law have without speciall custome Ib. f. 23. a. A Simili from the like NVllum simile currit quatuor pedibus Coke l. 7 f. 34 no like thing runs upon four feet and Coke l. 4. f. 18. b. Nullum simile est idem nothing that is like is the same Sir Gilbert Gerrards case upon an action of slander the Plaintiffe counteth that he was seised of a Mannor c. in fee and that he was in communication to demise the said land to R. E. and that the Defendant not ignorant thereof said I have a Lease of the said Mannor for ninety yeares and that by reason of the said words the said R. E. did not accept of the said Lease to the damage c. The Defendant pleaded that tâ—lis indentura qualis in the Count was alledged came to the hands of the Defendant by finding and it was resolved that that manner of pleading was not a direct answer to the indenture mentioned in the Count for talis indentura is not eadem indentura for no like is the same Eadem simili ratione suadente idem jus statuendum est Reg. I. C. Vbi eadem est ratio ibâ— est idemjus Coke com f. 191. a. It is one of the Maximes of the common Law cited by Littleton that in all cases where there is the like reason there is the like law for reason is the soule of the law and ratio potest allegari deficiente lege and reason may be alledged where the Law is wanting and then as Bâ—actâ—n De similibus ad similia eadem ratione pâ—oâ—â—dendum est From the like unto the like by the same reason we are to proceed and so argumentum a simili iâ— good in law Et quod in uno similium valet valebit in altero what availeth in one of the likes shall availe in the other as one shall recover in value against the heire upon the Ancestors warranty Lands which the heire tooke in exchange for Lands descended 1â— H. 3. rec va 26. for the similitude of the same reason A Mannor is given by Fine A Scâ—â—e facias lyeth of a tenancy that after escheated to the said Mannor 48. E. 3. 11. If a Mannor descend to an heire within age and after a tenancy escheateth he shall have his age of it in a praecipe of the mannor it shall be assets by descent and he may vouch of this tenancy by reason of a warranty made of the Mannor for the same reason 6. H. 4 1. And for the same reason a Lease for a thousand daies is a Lease for yeares 14. H. 8. 13. And a Lease for years and a release amounteth to a feoffment Brook The Maxime of a Bastard is eigne that the mulier puisne must make an entry upon him or else he gaineth the right yet a continuall claime made by the mulier puisne destroyeth his right for it is all one as if he had entred 14. H. 4. 9. If a man licenceth one to occupy his Land for a yeare this is a Lease for a yeare 5. H. 7. 1. And this is also according to the rule of the civill law ubi est eadem ratio eadem equitas ibi debet esse eadem juris dispositio where there is the same reason and the same equity there ought to be the same disposition of right Coke com f. 10. a. As in Feoffments and grants the word heires maketh an inheritance so doth it in exchanges releases and confirmations which enure by way of enlargement of an estate as also in warranties bargaine and sales by deed indented and enrolled and the like in which the word heires is also necessary because they stand upon the same reason that feoffements and grants doe for where there is the same reason there is the same law Coke com f. 55. 56. If Lessee at will soweth the Land and the Lessor after it is sown before the corne is ripe put him out yet the Lessee shall have the corne and shall have ingresse egresse and regresse to cut and carry away the Corne and if the corne be ripe and ready to cut downe and the Lessor before the Lessee reapeth it enter and putteth out the Lessee without all question the Lessee shall have the corn for by the same reason that he shall have it where he is put out before it is ripe he shall have it where he is put out after it is ripe for where there is the same reason there is the same law A majori minori From the greater and the Lesser IN eo quod plus est semper inest minus Reg. I. C. Omne majus continet in se minus Coke l. 4. f. 46. a. The greater alwaies containeth in it the lesse as whereas by the statute of 3. H. 7. c. 1. It is provided that if Murderers and accessaries or any of them be acquitted upon inditement or the principall is attainted c. the wife or heire to him slaine may have their appeale against the persons so acâ—uitted or against the principall so attainted and that the benefit of his Clergy thereof before be not had It was resolved that the word Attaint of murther in that act
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
very commendable Ibidem Naturae vis maxima and Catiline said Natura bis maxima The force of nature is very great or more then superlatively great Ployd 309. b. and therefore all things proceeding from nature are not onely respected in Philosophy but also in our law and are of efficacy in our law and taken for a consideration sufficient Ployd 305. and accordingly in Sharingtons case f. 309. It was adjudged that the affection of Andrew Bainton for the provision to his heires males which he had engendred and the affection that he had that the land should remaine in his blood and name of Bainton and the brotherly love that he bore to his brothers were causes sufficient to make uses in the land vide ib dem So consideration of marriage and brotherly love are greater then mâ—ny or matter of recompence to raise an use without transmutation of possession because every one of them is meerely founded on the law of nature ibidem 3 9. a. If a man seised in fee of Lands holden of I. S. by fealty and ten pounds of rent and he giveth it in frank marriage to one with his daughter the father shall pay the ten pound yearely untill the fourth degree is passed and shall have nothing of the Donees for it because it was given to his daughter in marriage for her advancement and for that reason the charge is translated from the daughter to the father and the consideration of it is nature Ib. f. 305. a. If I make a contract with another that if he will take my daughter to wife that I wil give him twenty pound if he take her to wife he shall have action of debt for the twenty pound in our Law 22. E. 3. Ass P. 70. and yet I have nothing by it and if a man hath not regard to nature it shall be nudum pactum Ibid. Yet the Law hath such respect to nature and conjunction of blood as in diverse cases it matcheth necessity of blood with the consideration of profit as the sonne may maintaine his father and one brother another 19. E. 4. 5. and Brothers and Cosins shall not wage Battaile in a Writ of Right The statute which maketh it felony to receive or give meat to one which committeth felony he knowing it extendeth not to a woman that receiveth and giveth meat and drink to her husband in such case Ployd Dyer f. 300. A feoffment to the use of himselfe and after his decease to the use of Alice which he intended to marry untill the issue which he doth beget of her shall be of the age of 21. yeares and after the son commeth to such an age then to the use of his wife during her widdow hood the husband dieth without issue it was adjudged the wife shall hold the fee it being by way of use otherwise it had been by estate executed If my brother hath a suit against my Cosin and Nephew I may maintaine the cause of my Cosin though my brother be neerer 4. H. 6. 17. 14. H. 7. 2. If a man menace me that he will imprison or hurt my father or child if I make him not such an obligation and I make it I shall avoid this by duresse as if he had menaced me 15. H. 6. 17. and 21. E. 4. 13. Exception Yet a consideration of blood in a personall contract as to give money is not good Lex respicit naturae ordinem Coke com 197. a. b. The law will not suffer any one to demand any thing contrary to nature and reason As a tenant in common may have an assise for the moiety of twenty shillings and the moiety of a pound of Pepper but for a Hawk and an Horse albeit they be tenants in common they shall joyne in an assise for the law will not permit any one to make his plaint in an assise contrary to the order of nature and which by nature he cannot recover as the moiety of an horse or any other entire thing for that were a vain thing lex neminem cogit ad vana inutilia and the Law compelleth none to vaine and unprofitable things Coke com f. 9. 2. a. The law respecteth the order and course of nature as if the tenant hold by a rose or a Bushell of Roses to pay at the feast of Saint Iohn Baptist because they are flowers not to be kept therefore are they to be delivered at the time of growing and the Lord may demur to distraine till that time neither is the tenant driven by law artificially to preserve Roses for the law in these cases respecteth nature and the course of the yeare For as Littleton here saith ars imitatur naturam art doth imitate nature Ployd f. 540. b. when diverse things are done at one and the same instant and the one cannot take effect without the other the common law shal adjudge it to precede it to follow which aptly ought to precede or follow as if a disseisor maketh a Lease for yeares and then hee and the disseisee release by deed to tenant for yeares there the law shall adjudge the release of the disseisee first to take effect and then the release of the disseisor for there is no privity or estate in the Lessee upon which the release of the disseisor may enure if the release of the disseisee doth not first inure So if tenant for life maketh a Lease for yeares and he and the other in the reversion in fee confirmeth the estate of tenant for years to have and to hold to him and his heires the estate of him for life shall passe first and then he in the remainder vide ibidem Paramors case Sicut natura in suis operationibus non facit saltum ita nec lex Arist 9. de motu animalium Coke com 238. b. as nature in her operations maketh no skips so also doth not the law as the writ de ingressu super discesinam is upon a disseisin made to the demandant or some of his Ancestors of which there are four kinds the first is against the disseisor upon a disseisin done to himselfe and this is called a writ of entrie of the nature of an assise sur disseisin en le pâ—r when the heire by descent is in the per by his Ancestor or when the disseisor maketh a Feoffment in fee gift in taile or lease for life the third is entry suâ— disseisin en le per cui as where A. being the feoffee of D. the disseisor maketh a feoffment over to B. there the disseisee shall have a Writ of entry sur disseisin of lands c. in which â— had no entry but by A. to whom D. demised the same who unjustly and without judgment disseised them These are degrees which are to be observed or else the writ is abateable for as nature so the law doth nothing by skips but by degrees The fourth is the entry sur disseisin in the post which lyeth when after the
and a Law was that thereby there might be certainty of titles and a peaceable possession without contradiction and as a Civilian saith ut sit finis litium that there might be an end of suits and therefore were the Statutes of limitation made within which the demandant that bringeth the action must prove himselfe or some of his Ancestors to be seised and in antient time the limitation in a Writ of right was from the time of H. 1. after that by the Statute of Merton the limitation was from the time of Henry the second and by the Statute of Westminster the first the limitation was from the time of Richard the first but because that limitation of the writ of right was for so long time passed the limitation of a writ of right was changed by the Statute of 32. H. 8. and reduced to threescore years next before the Teste of the Writ and so of other actions Coke com f. 115. a. vide ibidem plura And afterwards another Act was made 21. Jacob. that for the avoiding of suits all writs of Formedon in Descender Formedon in Remainder and Formedon in Reverter for any Mannors c. shall be sued and taken within twenty years and that after the twenty years expired none such or any of their heires shall have any such writ and that no person that hath right or title of entry into any Mannors c. shall thereunto enter but within twenty years vide ibidem cap. 6. plura But it is to be observed that time of limitation is twofold first in writs that is by diverse acts of Parliament the second is to make a title of inheritance and that is as hath been said to pleade a prescription de tempore cujus contrarium memoria hominum non existit Coke com f. 14. 15. which is by the common Law And this also accordeth with the rule of Bracton Longa possessio sicut jus parit jus possidendi tollit actionem a vero domino l. 2. f. 52. Long possession as right begetteth a right and taketh away an action from the true Lord and owner And so in antient times if the disseisor had been long in possession the Disseisee could not have entred upon him neither could the Disseisee have entred upon the Feoffee of the Disseisor if he had continued a yeare and a day in quiet possession and though the Law be now changed yet at this day the Disseisor dying seised being an act in Law barreth the disseisee of his entrance upon the heire and for that many advantages follow the possession and tenant the law taketh away the entry of him that would not enter upon the Ancestor who is presumed to know his title and driveth him to his Action against the heire that may be ignorant thereof Coke com f. 237. b. And for the above said reason the law yieldeth diverse utilities and advantages to the possessor for it is better to be a possessor then to complaine of others who are possessors because it imposeth the burden of proving on the Plaintiff so as if he can prove nothing he which possesseth shall be acquitted neither can possession be avoided but by possession Ployd 137 b. As if I make a lease for years of the lands of my wife and die the lease is not void before entry made by the wife for possession must be avoided by possession and such possession must be gained by entry But if my father die and his land descend to me a Lease for yeares made before my entry is good because I have possession in law and none hath possession in deed but if a stranger abate a lease made by me after is void for the stranger hath possession indeed before my entry upon him Ployd ibid. If an Executor bring an Action of trespasse for goods taken out of his possession it is not needfull to shew the Testament but if hee not ever was possessed of them but doth demand the thing then hee ought to have shewn the testament Ployd f. 46. a. And regularly it holdeth true that when the naked right of Land is released to one that hath jus possessionis and the other by a meane title recovereth the land from him the right in possession shall draw the naked right with it and shall not leave a right in him to whom the release is made as if the heire of the disseisor being in by descent is disseised by A. and the disseisee release to A. now hath A. the meere right to the land but if the heire of the disseisor enter into the Land and regaineth possession that shall draw with it the meere right to the land and shall not regaine the possession onely and leave the meere right in A. but the recontinuance of the possession the meere right is therewith vested in the heire of the disseisor Coke com 266. a. If a woman possessed of a terme for yeares take an husband and the wife dieth though during the life of the wife the terme was not devested out of the wife yet by her death it is vested in the husband and it is given to him by Act in law because it is a thing in possession and not in Action Pl f. 192. b. In pari causa possessor potior haberi debet Reg. I. C. In aequali jure â—elior est conditio possidentis Coke l. 4. f. 90. a As the Lord who is allowed but three Chaplaines retaineth six by his letters testimoniall at one and the same time and all the six are prefeâ—red to six severall plurallities the three which are first promoted are warranted by the statutes and yet the retainer was not according to the statute for in aequali jure melior est conditio possidentis In equall right better is the condition of him who is in possession ibidem If a man purchaseth severall lands at one time which are holden of several Lords by Knights service and dieth the Lord who first seiseth the ward shall have him because they are in aequali jure and there is no priority betweene them which if there were the elder Lord shall have him Perk. f. 6. If ten Mannors be conveyed to two severall persons by one deed which of them happeneth to get the Deed first may detaine it Two Attorneys are retained conjunctim divisim joyntly and severally the plea of him that first pleadeth shall stand because they are in aequali jure to plead If there be two joynt-tenants and one of them taketh all the profits of the land or all the rent the other hath no remedy Coke l. 2. f. 68. a. So the release of all Actions personall by one barreth the other but otherwise it is if the personalty be mixed with the realty and if there be two joynt-tenants Lords and the tenant holdeth by Knights service and the tenant dieth his heire within age and one Lord seiseth the Ward and the other distraineth for the services he that first seiseth or distraineth shall bind the other And
remainder is appointed in fee to the right heires of I. S. who dieth having a daughter which entreth after the death of tenant for life there the son after borne shall not recover the lands before vested in the daughter as purchased for thereit is a fee simple to which the son after born hath no right for the lands were in none of his Ancestors before But where the estate is an estate taile the son ought to have it per formam doni As if a feme which suffereth a recovery by covin contrary to the Statute of 11. H. 7. is defeated by entry of the daughter tenant in taile the son borne may enter and oust the daughter for that the title in taile is in him because the statute saith he shall enjoy it according to the title which is in taile and therein the common proverb is verified One shall beat the bush and the other have the bird As if a man hath land by descent of the part of the mother and maketh a feoffment on condition and dieth without issue and the heire of the part of the father entreth the heire of the part of the mother may oust him Ployd 56. b. and 57. a. In Wimbish case quod vide Infinitum injure reprebatur Coke l. 6. f. 45. What is infinite is reproved and rejected in law As if a man have a debt by simple contract and taketh an obligation for the same debt or any part of it the contract is determined 3. H. 4. 17. 11. H. 4. 9. and 9. E. 4. 50. 51. So if a man have a debt upon an obligation and by course of law hath a judgement upon it the contract by specialty is changed into a thing of record for if he that recovereth should have a new Action or a new judgement he may have infinite Actions and infinite judgements to the perpetuall charge and vexation of the defendant and he shall not have a new Action or a new judgement for what is infinite is rejected in law So upon every judgement the defendant shall be amerced and if he bee a Duke Marquess Earle Viscount or Baron he shall be amerced 100 l. and so the defendant should be infinitely amerced upon an obligation which shall be mischievous Ibid. And lib. 7. f. 45. b. It was resolved in the Court of Wards by the greater part that a Bill of reviver upon a bill of reviver shall not be admitted by reason of the infiniteness which is rejected in law And lib. 8. f. 16. b. When the first office is found against the King and the melius inquirendum also the King is bound nor to have any melius inquirendum for the same matter because there should be no end of it and that such writs might issue infinitely and infinity is condemned in law Nihil tam conveniens naturali aequitati quam voluntatem domini volentis suam rem in aliam transferre ratam haberi Bracton f. 18. God hath given to man all the land terram dedit filiis bominum So men by Gods endowment are made Lords of the land and what property a man hath in lands by law by the law of God also he hath dominion of it and therefore every man who is the lawfull owner of land may grant to what person in what manner and for what time it pleaseth him for if the land be subject to man then is it subject to his will for the will cometh from the mind which is the principall part of man because it directeth the body and all things he hath and if his land be subject to his will this his will is a sufficient consideration by which his land may pass as his will is and there is no greater consideration then the will Ployd f. 308. b. And nothing is more agreeable to naturall equity then to ratify the will of the Lord willing to transferr his substance and estate over to another And therefore at the common law the intention and will of the parties was the direction of uses for they were onely determinable and to be adjudged by the Chancellor which is the Court of conscience and equity and there is nothing more agreeable to equity then that the will of the Lord or owner and the meaning of the parties should direct the uses 31. H. 16. Tit. subpaena Fitz. 23. A man being ceste que use and having one sole daughter declared his intent and meaning to the Feoffees that after his decease his daughter should have his land and for it question was made in the Chancery whether the limitation of that use made to the daughter might be revoked and in reasoning of that case Fortescue held opinion that if ceste que use had issue a daughter and being sick declared his intention to his feoffee that his daughter shall have his land after his decease and after hee recovered his health he had issue a sonne now saith hee it is good conscience the sonne should have the Subpaena because hee is heire for conscientia dicitur a conset scio quasi simul scire cum Deo that is to know the will of God so neere as reason will and the intention of the parties is to direct the uses according to a conscionable and benigne construction Coke l. 1. f. 100. a. b. vide ibidem plura As a gift in taile may bee made upon condition that tenant in taile may alien for the profits of his issue and good and hee may alien notwithstanding the Statute of W. 2. because in that case voluntas donatoris observatur The will of the Donor is observed Coke com 224. b. If Lands be given to B. and his heires Habendum to him and the heires of his body or if given to him and the heires of his body Habendum to him and his heires he hath estate taile and a fee expectant but if Lands bee given to B. and his heires if B. have heires of his body and if he die without heires of his body that it shall revert to the Donor it is an estate taile and the reversion in the Donor for voluntas donatoris in charta doni sui manifeste expressa est observanda The will of the Donor manifestly expressed in the Charter of the gift is to be observed Coke com f. 21. a. If a common person doth without consideration give to I. S. his goods indefinitely all his goods doe pass 21. E. 4. 25. Alba of Waltams case by Brown and Genny If the King doe grant to one lands ex mero motu and though his Highnesse doth rehearse some consideration in the patent of his grant which is not true as if the consideration bee that whereas the Grantee hath done his Majesty good service on the Sea or beyond the Sea or in his Wars though the consideration bee meerely supposed and therefore no good consideration in Law yet the words ex mero motu doe make the Grant good 26 H. 8. 1. by Fitz. And if a common person doe by deed
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
not though a deed without an inrolement may pass the reversion but it was meant they should pass together if one disseise another of two Acres in Dale and the disseisee release to the Disseisor all his right in all his Lands in Dale and delivereth the release as an escrow to be delivered to the disseisor as his deed before the second of May and before that day the disseisor disseiseth him of another Acre in D. and then the releafe is delivered unto him the second day of May the right to the third Acre shall not pass because it was not his intent to release it Ployd One reciting by his Deed that whereas by prescription he hath used to finde a Chaplaine because some controversie hath growne of it granteth by the same deed to doe it this determineth not the prescription for the intent of the Deed reciting the prescription was to confirme it and not make a new grant 21. H. 7. 6. Though it be a generall rule that the words which the common people use to expresse their intent ought to be taken according to the intent and not according to the very definition in Hills and Granges case f. 170. And that generalis regula generaliter est intelligenda yet this rule is principally to be observed in cases of uses which were onely trusts and confidences between man and man Coke l. 6. f. 64. vide ibidem plura in Sir Moile Finches case And Coke l. 1. f. 100. Shelleys case we finde in diverse cases of our Books that the intention of parties is the direction of uses by a conscionable and benigne construction as if a man seised of Lands of the part of his mother maketh a feoffment in fee reserving a rent to him and his heirs by the common Law the rent shall goe to the heir of the part of the father Lit. But if a man be seised of lands of the part of the mother and maketh a Feoffment in fee to the use of him and his Heirs such use shall not goe to the heire at the common Law but in regard the Land moved from the part of the mother therfore in equity the use which is nothing else but a trust and confidence shall also goe to the heirs of the part of the mother 5. E. 4. f. 4. And though Littleton saith that a man in a Feoffment and grant shall not have a Fee-simple without these words Heirs yet if a man before the Statute of 27. H. 8. had bargained and sold his Land for mony without these words heires the bargainee had a Fee-simple because at the common Law nothing passed from the bargainer but an use which is guided by the intention of the parties which was to convey Land wholly to the bargainee for that the Law intendeth that the bargainee paid the true value of the Land for it is in equity and according to the intent of the parties the bargainee had a Fee-simple without these words heires 27. H. 8. f. 5. Coke ibidem And as Ployd f. 345. a. A fortiori the intent saith he shall be observed in wills where the words cannot be performed for Testamentum est testatio mentis but that which is other then the intention is not the testation of the minde and therefore as he saith also f. 54. b. It is the office of Judges to marshall the words of wills according to the intentions of the parties for the most part of them are made in extremity and when there is no counsell of Law ready or present and the testators themselves are not for the most part learned in the Law and are accounted inopes consilij neither have they knowledge to put words in good order and therefore the ignorance and simplicity of those which make their wills require a favorable interpretation of the words of the will according to the intent As Lands were devised to one for life the remainder for life the remainder Ecclesiae sancti Audreae in Holborne and since the death of tenants for life the Parson of the said Church sued an ex gravi querela and it was pleaded in Judgement that the remainder took no effect because the Church was not a Parson capable and upon that was a demurrer and adjudged that the devise was good and that the Parson shall have execution and yet the Parson was not named in the devise but was comprehended in it Pas 21. R. 2. If a man devise the Mannor of D. and had nothing in it at the time of making the will and that since he purchased it it shall passe by the devise for it shall be taken his intention was to purchase it and if it should not passe the will should be void to all intents Ployd f. 344. a. So if one devise Land to the wife of I. S. and I. S. dyeth and shee taketh to husband another and after the devisor dyeth shee shall have the Land and yet shee was not the wife of I. S. when the devisor dyed nor shall not take it as his wife but the intent was that shee that was the wife of I. S. at the time of the making of the Will shall have it And if a man devise Lands to Alexander Nowell Deane of Pauls and to the Chapter there and their Successors and Alexander Nowell dyeth and a new Deane is made and then the devisor dyeth the land shall vest in the new Deane and Chapter and yet it vesteth not according to the words but according to the intent for the cheife intent was to convey it unto the Deane and the Chapter and their Successors for ever and the singular person of Alexander Nowell was not the principall cause but by chance was one of the causes Ployd 344. b. If one devise by will in writing Land to one and his Heirs and then in another clause after he deviseth out of that Land a rent-charge to him and his heirs it shall be good to the one for the rent and to the other for the Land and the rent in construction of Law shall be taken to be first devised although it be last in words and so one part shall stand with the other and good sence shall be made and the intent of the testator shall be observed in both Ployd f. 541. contrary to the rule of the civill Law ubi pugnantia inter se in testamento jubentur neutrum ratum est If in the Premisses of a will one deviseth Lands to one in fee and in the end of the will he deviseth it to another in fee the latter part shall confound the former because he had last such an intent and as the last will shall repeale the former will by the same reason the last part of the will shall repeale the former part of the will which is contrary to it ibidem vide plura in Paramors case Bendloes Rep. f. 209. B. Being sick sent for a Councellor and desired him to write his last will and testament of his Lands and declared unto
suerum cum averijs Abbot Conventus renounceth all the Common which he hath used to have of his Cattle with the Cattle of the Abbot and Covent and that release of Common was there taken void because he did not shew to whom he renounced the common yet there was a full intent for he had common in the Land of the Abbots and he had intent to release it to him but for the incertainty it was void And a Lease was made to Baron and Feme and the reversion of the Land that the Baron held was granted and it was held void notwithstanding the intent because it missed of the certainty of the particular estate H. 13. E. 3. Fitz. grants 63. And so where there were Lord and tenant of three acres and the Lord granted the signiory which he had out of one Acre it was held void in 17. E. 3. notwithstanding the intent because his intent did not agree with Law and so where a man holdeth of one by Castle garder Homage and Fealty and he granteth to another all his services it was held in 31. E. 1. that the Castle-garder cannot passe because he did not grant such a Castle but reserved it and therefore he who hath not the Castle cannot have the Castle guarder so his intent in granting al the services could not make all to passe because it was not according to Law and so the Law ruleth the intent and the intent not the Law Ployd ibidem in Throckmortons case Coke l. 1. f. 84. b. A man giveth Land to M. and 1. his Sisters and to the heirs of the bodies of them lawfully begotten by which they had a joynt estate for life and severall inheritances and the Donor intending that neither of them should break the Joynture but the Survivor should have all per jus accrescendi added this clause sub hac forma that shee that should longest live should have all the Land but because his intent is contrary to Law for this cause if the Joynture be severed by fine the Survivor shall not have the part so severed by the said clause which he hath inserted of his conceit and his own imagination contrary to Law and reason ibidem But in Wills the intent shall be observed and onely thought of because the Testator had no time to order all things according to Law by presumption but is suddenly made oftentimes and so the diversity Ployd f. 162. b. And therefore Ploy f. 414. a. The intent in devises maketh estates to passe contrary to the rules of the common Law in deeds and other gifts As if I devise Land to one A. for life whereas there is not any such the remainder in fee he in the remainder shall take the Land though there be no estate precedent And 34. E. 3. one had issue a Son and Daughter and deviseth Land devisable to one for life upon condition that if the Son disturbe tenant for life or his Executors of their Administration that then the Land shall remaine to the Daughter and dyeth the Daughter after the death of the tenant for life bringeth a Formedon in remainder against the son alledgeth that the tenant had disturbed the Tenant for life and the Executors and the Tenant traversed it upon it issue joyned and the condition took the fee out of the Son and put in the Daughter by allowance in Law in performance of the intent of the Devisee though the remainder did not vest when the first estate took effect Ployd ibidem Coke com f. 322. a. b. If a man lease Lands devisable for life c. the reversion by his testament in fee c. and dyeth and then the Tenant maketh wast the Devisee shall have a writ of Wast although the Tenant never attorned because the will of the Devisor made by his will shall be performed according to the intent of the Devisor and if the Tenant will never attorne then it shall never be performed and therefore he shall have an action of wast or distraine without Attornement Littleton for it is a maxime of the common Law ultima voluntas testatoris est perimplenda secundum veram intentionem sufam Coke ibidem for if a man devise his Tenements to another by testament Habendum sibi in perpetuum and dyeth and the Devisee entreth he hath a Fee-simple causa qua supra and yet if a feoffment had been made to him by the Devisor in his life of the same Tenements Habendum sibi in perpetuum and livery and seisin upon it made he shall have an estate onely for terme of his life Littleton Ibidem Coke com f. 9. b. Though by the common Law an estate of inheritance may not passe without these words Heires yet in devise it may as if a man devise twenty acres to another and that he shall pay to the Executors for the same ten pound he hath a Fee-simple by the intent of the Devisor albeit it be not the value of the Land 21. E. 3 16. So if a man devise Lands to give or to sell or in feodo simplici or to him or his Assignes for ever in all these cases a Fee simple doth passe by the intent of the Devisor but if the devise be to a man and his Assignes without saying for ever the devisee hath but an estate for life if I devise Land to one sanguini suo it is a Fee simple but if it be semini suo it is an estate tayle ibidem Exception Coke l. 1. f. 85. 86. in Câ—rbets case It was ruled by all the Justices that such an estate which cannot by the rules of the common Law be conveyed by act executed in his life by advice of counsell learned in the Law such an estate cannot be devised by the will of man who is intended in Law to be in ops consilij as if I devise Lands to one by will in perpetuum he hath a fee for such an estate may be conveyed by estate executed but if I devise further that if the Devisee doth such an act that then another shall have his Lands to him and his Heires that is void because such limitation if it was by act executed is void for as Dyer f. 33. pl. 12. A man cannot devise an estate in fee to one and if he doe not such an act his estate shall cease and another have it for when he hath disposed the estate in fee he hath not power in the same will to devise it to another and f. 4. pl. 7. when the intent of man who maketh a testament doth not agree with the Law the intent shall be taken void as if a man devise his Land to H. in fee and that if he dye without heir that M. shall have the Land this devise is void because one Fee-simple cannot depend upon another in law the same law is if the devise be to the Abbot of Saint Peter de W. where the foundation is to the Abbot of St. Paul
upon a false consideration the heire shall not be received to aver a false consideration against his ancestor Dier Ex nudo pacto non oritur actio Ployd 305. a. and 308. b. from a bare contract or promise no action riseth for it is not much argued by the laws of England what diversity is betweene a contract and a promise and a gift for the intent of the law is to have the matter argued not the termes A Nude contract is where a man maketh a bargaine and sale of his goods or lands without any recompence appointed for it As if I say to you I sell you all my lands or all my goods and nothing is assigned that the other shall give or pay for it this is a nude contract and is void in law and the vendee cannot bring an action for them Dr. and Student c. 24. And a nude promise is when a man promiseth to give a man certaine mony at such a day or to do him certaine service and nothing is assigned for them As if I promise to give you twenty pound to make your house anew there you shall have no action against me for the 20 l. because it is a nude promise as it is affirmed by Townsend T. 17. E. 4. Ployd f. 308. b. So if a Carpenter by word covenanteth and undertaketh to make a new house and he doth not and for not making it the Plaintiff bringeth an action of covenant against the Carpenter and it doth not appeare that he had any thing for making of the house it was adjudged in 11 H. 4. f. 33. that the Plaintiff should not take any thing by his writ Ployd 309. a. And if I promise to another to keep his goods safely till such a time and after I refuse to take them no action lieth against me but if I take them and after they be lost or impaired through my negligent keeping an Action lieth Doctor and Stud. c. 24. But otherwise it is if he to whom the promise is made have a charge by reason of the promise which he hath also performed then in that case hee shall have an Action for that thing is promised As if a man give land in Frankal-moine they are bound to make prayers to God for him and in consideration of such prayers he is bound to pay to the cheife Lord all the rents and services issuing out of that land Lit. a. Frankal And in 17. E. 4. 5. It is taken by diverse that if I promise a Surgeon a certaine summe to cure such a poor man or if I promise to a labourer certaine mony to repaire such a way which is in the high way that he shall have an action of debt for it for it is a thing of charity and I merit thankes of them for it and therefore shall not be called Nudum pactum Ployd f. 306. a. If I contract with another that if he will marry my daughter that I will give him 20 l. in this case if he take her to wife he shall have an action of debt for the 20 l. 22. E. l. Assi Pl. 70. by Thorp and yet I have nothing for it and if a man hath no regard to nature it shall be nudum pactum but because my daughter is advanced by it that is a good consideration to me Ployd f. 305. a. So Dr. and Stud. c. 24. f. 104. It is a good promise because he hath quid pro quo the preferement of his Daughter for his money But if a man promise to another 20 l. with his daughter in marriage if he marry the daughter and the money be not paid he shall not have an action of debt or an action of the case at the common law but he must sue for his money in the spirituall Court for here is no good forme of contract F. n. b. f. 44. a. And as Bracton saith matrimonium est principale ejusdem juris id est jurisdictionis eâ—â—e debet accessorium matrimony is the principall and the accessory ought to be of the same jurisdiction Gardiner brought an assumpsit and declared that the Defendant in consideration that he was indebted to the Plaintiff in 10 l. for pasturing and feeding of certaine beasts in the Plaintiffs grounds and for wheat and other Marchandises had and received by the said defendant did assume to pay to the said Plaintiff the debt that he had paid Vpon issue non-assumpsit was found for the Plaintiff and upon a Writ of error in the Exchequor-chamber that there must be some certaine cause of the debt assigned for it is not sufficient to say generally he was indebted for it might be for rents upon leases or for debts upon specialties but it was adjudged certaine enough and required not so much certainty as an action of debt upon a contract Hob. rep f. 7. Wolastone brought an assumpsit against W. and declared that whereas W. promised him 30 l. in consideration that the Plaintiff on the twentieth of August 1610. had given day to the said defendant for the payment of the same money untill the ninth of October following the Defendant did assume to pay him the same ninth day and upon issue non-assumpsit it was found for the Plaintiff and damages given Hob. f. 26. Wolastons case vide ibidem L. brought an assumpsit against B. and declared that whereas the defendant had felloniously slaine one P. M. the defendant afterwards required the Plaintiff to labour and doe his endeavour to obtaine his pardon from the King whereupon the Plaintiff upon the same request did labour c. to obtaine pardon for the said defendant and afterwards fi c. in consideration of the Premisses the defendant did promise to the Plaintiff to give him a hundred pounds and that he had not c. upon non-assumpsit it is found for the Plaintiff 100 l. ibidem f. 147. vide ibid. plura B. bringeth an action of the case against C. executor of Reade and counteth that whereas he had in M. terme 14. Jac. presented an attachment of priviledge against Reade rerurn in H. terme the testator knowing of it in consideration that at his request the Plaintiff would forbeare to prosecute the said writ did promise to pay him 50 l. and then averred c. and after verdict for the Plaintiff and exceptions in arrest of judgement the Court gave sentence Bedwels case vide ibidem plura A promise made for a thing past is void as if I promise one ten pounds because he hath builded me an house an action lyeth not there and if I promise to give another 10 l. in recompence of such a trespass that he hath done him an action lieth not against him the reason is because a contract properly is where a man for his goods shal have by the assent of the other party certaine goods or some other profit at the time of the contract or after but if the thing be promised fot a cause that is past by way of a recompence
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
if he be an honest man Swimb f. 210. It is an observation of a Divine that oathes ex officio had their birth from Caiphas Math. 26. who who first imposed it on our Saviour in the name of the living God saying I adjure or charge thee in the name of the living God that thou tellest us whither thou be'st Christ the Son of the living God And Mr. Pryn saith that Cardinall Woolsy the highest Priest in England was the first that invented oathes ex officio in England and that they were much inveighed against by Latimer in his Sermons and condemned by the expresse words of the petition of right providing against such oathes Prin. Vind. f. 42. Impotentia excusat legem impotency excuseth the Law Coke com f. 29. a. The Law tendreth the weaknesses and debilities of others execuseth their un-abilities ultra posse non est esse because no man is able to doe more then he can do As if a man dyeth seised of Lands in fee-simple c. and these Lands descend to his Daughter and shee taketh an husband and hath issue and dyerh before any entry the husband shall not be tenant by courtesy because it was in the power of the husband to have entred but if a man be seised of an advowson or a rent in fâ—e and hath issue a daughter who is married and hath issue and dyeth seised the wife before the rent became due or the Church became void dyeth he shall be Tenant by courtesy because he could by no industry enter or attaine to any other seisin then a seisin in Law or bring it to an actuall seisin And f. 258. b Though an Hermite or an Anachorite be shut up himself so as by his order he is not to come out in person yet to avoid a descent he may command one to make claim and such a recluse may allwayes appeare by an Attorney in such cases where others must appeare in proper person and f. 263. b. An Abbot of a Monastery dyeth and during the vacation one wrongfully entreth into a certaine parcell of the Land of the Monastery claiming the Land to him and his heirs and dyeth seised and the Land descendeth to the heire and then one is elected Abbot the Abbot may enter upon the heire for by the death of the Abbot no person is able to make continuall claime and therefore a descent in that kind shall not prejudice the succession Coke l. 1. f. 98. a. If the Lessee Covenant to leave wood in the same plight the wood was at the time of the lease and afterwards the trees be sub-verted by tempest hs is discharged of his covenant by reason of his impotency and l. 4. f. 11. a. If the Lord release to the Tenant so long as I. S. hath heire of his body and sixty years passe and then I. S. dyeth without heire of his body in this case though the sixty years be passed yet the Lord may distraine for it was impossible that she should attaine to any seisin within that time and therefore the act of limitation made in 32. H. 8. doth not extend to such rent or service that by common possibility could not happen or become due within sixty years and so if Land holden by Homage and Fealty be conveyed to a Mayor and Commonalty c. in this case they cannot doe their Homage and Fealty yet though they have enjoyed the Land above sixty years if they alien the Land the Lord may distraine for Homage and Fealty 33 H 8. Br. Tit. Fealty 15. vide ibidem pluta in Bevills case and lib. 6. f. 21. b. in Butlers case It was resolved that legall imprisonment without Covin is a good excuse of non-residency in any Parson by reason of his impotency Quod remedio destituitur ipsa revalet si culpa ab sit the thing which is destitute of remedy availeth in the matter it selfe if there be no fault or laches in the party Coke l. 6. f. 68. a. As if a man be seised of a manner part of which is in lease for life and part in lease for yeares and levieth a fâ—ne to A. to the use of B. in tail with diverse remainders over in this case B. shall avow for rent or have an Action of Wast without any Attornement for when the reversion is setled in any one in judgement of Law and he hath no meanes to compell the tenant to attorne and no laches or fault is in him there he shall avow or have an Action of Wast without Attornment As if the Lord in Mortmaine or if a villaine claimeth a reversion by this claime the Law vesteth thiS reversion in him and he hath no meanes to compell the tenant to attorne and therefore he shall avow or have an Action of Wast without Attornement the same Law is of Letters Patents and of the devise of a reversion for in all those cases culpa abest there is no fault 9. H. 6. vide ibidem plura in Sir Moile Finches case And Coke l. 8. f. 172. b. in Hales case If the heire at full age tender his livery and dyeth within three months before he hath accomplished it so as the making of his homage or suing out of his livery without default in him is become impossible by the act of God he shall have as much advantage by his tender as if he had made homage or sued out his livery for impotency in this case excuseth the Law and in the judgement of the Law the interest of the King by the said limitation is determined as if the Lord had taken homage of the heire when he made his tender vide ibidem plura Coke l. 10. f. 139. b. If tenant for life or for years doth not repaire a wall of dirt so as by his default the Land is surrounded and becometh unprofitable that is Wast but if the Land be surrounded by the extraordinary rage and violence of the Sea without any default in him that is not Wast no more then if an house was burnt by lightning or subverted by the rage of the wind or tempest without default of the Lessee for impotency excuseth the party vide ibidem plura in Kighleys case So as it is regularly true that the Law tendreth the infirmities of unable persons and excuseth their impossibilities as of men illiterate out of the Realme in Prison Infants Idiots out of their sound minde as also of blind and deafe dumbe and blind If a man illiterate be bound to make a deed he is not bound to seale or deliver any writing that shall be tendred unto him and if it be Latine or other Language which he understandeth not he may demand that one read it and expound it unto him and if none be there present to read and expound it the party may refuse to deliver it for his ignorance excuseth him Coke l. 2. f. 3. Mansers case And for that reason if the Deede be read unto him in other words then are contained within
yeare and the right descendeth to the heire within age he shall be bound to that yeare commenced in his Father and his nonage shall not availe him there because his Father was of full age Ployd 372. a. So non-claime of a villaine of an infant by a yeare and a day who hath fled into ancient demesne shall take away the seisure of the infant And if an infant bringeth not an appeale within a yeare and a day he is barred of his appeale for ever for the Law respecteth more liberty and life then the priviledge of infancy If the King be seised of Lands and the Land descend to the successor this shall bind an infant for that the priviledge of the infant in this case holdeth not against the King Coke com f. 246. a. Though it be regularly true that no laches shall be adjudged in infants for not entry or claime to avoid descent yet laches shall be accounted in him for not performing a condition annexed to the State of Land for the laches of an infant for not performing a condition annexed to an estate either made to his Ancestor or himselfe shall bar him of the right of the Land for ever as if either of them be enfeoffed reserving a rent and for default of payment a re-entry the laches of either of them in not paying the rent shall disinherit either of them for ever But if a man maketh a feoffment in fee to another reserving a rent and that if he pay not the rent within a month ne shal double the rent and the feoffee dyeth his heir within age and the infant payeth not the rent he shall not for this laches forse it any thing for that the infant is provided for by the Statute non current usurae contra aliquem infra aetatem existentem Merton C 31. An infant is impleadable in Law and for his contempt shall be punished as a man of full age as an outlawry returned against an infant is good and not erronious so as he hath passed the age of fourteen years 2. H. 5. Dyer 104. b. and 3 H. 6. An infant was forced to answer upon breach of a prohibition in an estreapment An infant is bound by any Statute Law if he be not expresly excepted in it as in fore-judger recovery in Cessavit and fines with proclamations Doctor Student c. 45. 147. And that if he had not been excepted in those Statutes they should have bound him an infant prayeth to be received and it is traversed he shall find sureties of the meane profits as an heire of full age Dyer 104. b. An infant under the age of fifteen cannot wage Law either for a debt or default of any reall action Office of Exec. f. 346. If an infant be garden of a prison and suffereth a prisoner to escape he shall pay the debt because the Statutes are generall and by that reason he may by a penall Statute loose his Goods Doct. and Stud. C. 46. 147. If one enter into a freehold of an infant with his consent this is a disseisin because an infant cannot consent to an entry An infant under one and twenty cannot be a Bayliff receivor for want of skill or ability nor yet sworn in any Enquest or Jury and is uncapeable of a Stewardship of the Court of a Mannor in possession or reversion or any office concerning the administration of Justice Coke com f. 3. b. 157. a. And not capeable to performe grand Serjeanty at the coronation ibidem 107. b. Actus non facit reum nisi mens fit rea Coke com f. 247. b. The act doth not make one guilty unlesse the mind be guilty and therefore if an infant under the age of discretion commit an act amounting to a Felony shall stand free from the attainder and punishment incident to a Felon but if he be of the age of discretion though he be not of full age he shall suffer as a felon and regularly the age of discretion accounted by the Law is fourteen yeares and therefore shall such an one incur the like attainder os felony as one of full age Office of Executor f. 244. and Coke com f. 247. b. But non est regula quin fallit for one of much lesse yeares having attained the maturity of discretion if he commit any felonious act shall suffer as a Felon as it was resolved in the time of King Henry the seventh in the third yeare of his reigne f. 16. touching an infant but of the age of nine yeares who killing another boy of the like age with a knife and then hiding the slaine boy and excusing the blood found upon him by saying that his nose had bled it was held by the Judges that he was to be hanged as a Felon his such nonage notwithstanding and by King Ina's Law puer decem annos natus surto conscius arguatur an infant of the age of ten years shall be attainted of theft if guilty thereof but Doctor and Student applyeth an infants discretion to the knowledge of the Law so that if an infant doe a murther at such yeares as he hath discretion to know the Law he shall have the punishment of the Law as if he were of full age and this is by a maxime in the Law for eschuing of murthers and felonies and so it is of trespasses cap. 46. f. 148. If a dumbe person bring an action he shall plead by procheine amy Finch Nomot It was a time when Idiots and mad men and such as were deafe or dumb were disabled to sue because they wanted reason and understanding but at this day they all may sue but the suite must be in their names and it shall be followed by others Coke com f. 135. b. A man that is borne dumb may make a grant by delivery of his hands or signes and a man borne deafe and dumb may make a guift if he have understanding and though it be an hard matter that a man shall have understanding without hearing yet there are diverse such persons as have understanding by their sight and a man borne dumb and blind may have understanding but a man borne dumb deafe and blind cannot have understanding Perk. f. 6. Furiosus furore suo punitur Coke com f. 247. b. The Law favoreth a mad man by reason of his disability in criminall causes and because he is amens sâ—ne mente without his mind and discretion he shall not suffer for any felonious fact for the intention is the forme of Felony that is if it be done felleo animo with a bitter and mischeivous mind and therefore is he punished onely with his madnesse there are foure sorts of mad men the first is an Idiot which from his nativity by a pertuall infirmity is non compos mentis 2. is he that by sicknesse or other accident wholly loseth his understanding 3. A Lunatick who hath sometimes his understanding and sometime hath not aliquando gaudens lucidis intervallis and is called non compos mentis
flyeth to the wall or to some other unpassable place to save his life and upon the pursuit of the other he killeth him this is man-slaughter in his own defence 3. E. 3.284 From morall Philosophy NExt in order succeeedeth morall Philosophy the exact knowledge of which as Picolonomy Inductio ad libros Civil Philos cap. 6. cannot be comprehended without the precognition of the naturall and therefore hath the precedency for the morall faculty doth instruct men to avoid vices and to cure the maladies of the mind which cannot be compleatly accomplished without the naturall contemplation of the affections of the soul it is called Ethica by the Phylosopher or institutions of manners by which the oblique manners of men are rectified and their Enormities regulated and certainly from such exorbitances of manners originally proceeded the institutions of Lawes and from whence as Doderidge all Laws are in generalty derived for in the primary age which may rather be named the Iron then the golden age when men lived like beasts Dod. English Lawyer f. 250. the one praying on the other according to the censure of the Philosophicall Poet. Quod praedae obtulerat fortuna cuique ferebat Sponte sibi quisque valere vivere doctus What fortune offered for a pray each one Layd claime to it learned to live alone And serve himselfe Then were Laws first excogitated to suppresse the barbarous Savageness of such humane beasts and to reduce them to a more civill association as the Venusine Poet rightly Jura inventa metu injusti fateare necesse est Tempora si fastosque velis evolvere mundi If we revolve the Annalls of mans time From the worlds birth we must confesse and find That Laws were founded for feare of the unjust Seeing then Laws were introduced from the depraved judgements and corrupt manners of men who will not acknowledge that the science by which they are formed and the principles deduced from it are requisite and materiall to the fundamentall knowledge of the Law From which Fountaine our Law doth draw these grounds and maximes Illud possumus quod jure possumus Reg. I.C. We can doe that which by right we can doe for as Boetius potentia non est nisi ad bonum ability and power is not but to good for the power to have liberty to doe wrong is not by such liberty augmented but diminished potentia injuriae est impotentia naturae the power to doe injury is the impotency of nature as to decay and dye is no power but in respect of the privation and diminution in the thing is rather impotency as the Angells and Saints confirmed in glory and cannot sin are more powerfull then man who through his impotency can sin So a King ruling royally and with whom whatsoever shall please him hath the power of a Law and may doe what evill he lift is more impotent then he that doth all according to the rule and square of Law and therefore doth the Law give this rule Illud Rex solum potest quod de jure potest Coke l. 3. 99. f. 123. l. 1. 11. f. 7. Solum Rex hoc non potest quod non potest injuste agere The King onely can doe that which by right he can doe and the King can onely not doe this that he cannot doe any thing unjustly as 4. E. 4. 15. the King can be no disseisor he can be no wrong doer so if the King granterh and releaseth the services to the tenant and his heires that shall not extinct the tenure in all for necessity of the tenure and the King cannot by his charter alter the Law and therefore it shall be expounded as neere to the intention of the King as may be and that is to extinguish all the services but it onely which is incident inseperably to every tenure and that is fealty for it the King cannot doe by Law Coke l. 9. f. 123. a. And Coke l. 11. f. 72. a. The King shall not be exempt by construction of Law out of the generall words of Acts made to suppresse wrong because he is the Fountaine of Justice and common right and the King being Gods Lievtenant cannot doe wrong and with it accordeth 13. E. 4. 8. in the case of Alton woods l. 1. f. 41. So Lands were given to Henry the seventh and the heires males of his body and the question was whether the King in regard that he was not expresly restrained by the Act of 13. E. 3. de donis conditionalibus post prolem masculam sussitatum might alien or no and it was adjudged he could not alien but was restrained by the said Act for it were an hard argument to grant that the Statute which restraineth men to doe wrong and evill shall permit liberty to the King to doe it Ployd f. 246. Signior Barklys case Coke ibidem vide plura Potestas regis juris est non in juriae cum sit author juris non debet inde injuriarum masci occasio unde jura mascuntur Bract. l. 2. The Kings power is of right and not injury and as he is the author of right there ought not from thence to arise occasion of injury from whence rights proceed As if one who intendeth to sell his Land and by fraude conveyed it by deed enrolled to the King to the intent to deceive the purchaser and then he selleth the Land to another for a valuable consideration maketh conveyance accordingly in this case the purchaser shal enjoy the land against the Queen by the Statute of 27. Eliz. c. 4. For though the Queen be not excepted yet the act being general made in suppressing of fraud shall bind the Queen So if tenant in tail be seised of Land the remainder over in tail or in fee and he in the remainder knowing that tenant in tail will alien the Land and by recovery bar his remainder to the intent to deprive the tenant in tail of his birth-right and power that the Law hath given him to bar the remainder and of intent and purpose to deceive the purchaser granteth his reversion to the Queen by deed enrolled and then tenant in tail for a valuable consideration alieneth the Land by common recovery and dyeth without issue the purchaser shall enjoy the Land against the Queene by the Statute of 27. Eliz. the words of which are that every conveyance c. made c. to the intent and of purpose to deceive a purchaser t. shal be deemed onely against such purchaser c. to be utterly void vide ibidem plura in Magdalen Colledges case l. 2. in Cholmlys case f. 51.52 And the King hath a prerogative above all his Subjects that where by fraude or salse suggestion he is deceived that he in that case shall avoid his owne grant jure regio 22. E. 3. 47. in the Earle of Kents case Stanf. pr. regis 84. a. As the King can neither doe himselfe injury nor others And
and his Heires shall not alien the bond is good yet he may notwithstanding alien if he will forfeit his bond that he himselfe hath made So a bond with condition that the Feoffee shall not take the profits is good so a bond upon condition to enfeoff his wife is good though it be against a maxime in Law Coke com f. 206. And if the husband be bound to pay his wife mony the bond is good Non valet impedimentum quod de jure non sertitur effectuum Reg. I. C. Coke l. 4. 31. a. The let or impediment availeth not which taketh not his effect from the Law as if the Lord be disseised and the disseisor dyeth seised or if the Land be recovered from him by verdict or erronious judgement in these cases untill the Land is recovered or the judgment annihilated by the Law the land is not demisable and yet after the land be re-continued it is grantable againe by copy but if copy-hold lands be forfeited to the Lord or escheate and before any new grant made those lands be extended upon a Statute or Recognisance acknowledged by the Lord or if the wife of the Lord in a writ of dower hath that land assigned to her though those impediments be acts in law yet for that that those interruptions are legall the lands shall never after be granted by copy ibidem The words of an Act of Parliament must be taken in a lawfull and rightfull sense as where by the Statute of Gloucester it is forbidden that the husband shal not alien the lands he hath in right of his wife whereof no fine is levied in the Kings court those words are to be understood where no fine is lawfully levied in the Kings Court and therefore a fine levied by the husband alone is not within the meaning of that Statute for that fine should worke a wrong to the wife but a fine levied by the husband and wife is intended by the Statute and that is lawfull and worketh no wrong for generally the rule is non praestat impedimentum quod de jure non sortitur effectum so the Statute of W. 2. c. 5. Ita quod episcopus ecclesiam conferat is construed ita quod episcopus ecclesiam legitime conferat Coke com f. 361. b. Nullam iniquam in jure praesumendum Coke l. 4. f. 71. No injurious thing is to be presumed in the law for the law so abhorreth injury that it granteth writs of anticipation to prevent them quia timet because a man feareth them and that before any molestation distresse or impleading and there are six sorts of such writs first a man may have his writ of Mesne before he be distrained 2. a Warrantia Cartae before he be impleaded 3. a Monstraverunt before any distresse or vexation 4. an Audita quereta before any execution sued 5. a Curia claudenda before any default of inclosure and is a ne Injuste vexes before any distresse or molestation Coke com f. 100. a. And such an Antipathy there is between the Law and injury that no injury is to be presumed in the law and as Coke l. 10 f. 56. a. Odiosa in honesta non sunt in lege praesumenda in facto quod se habet ad bonum ad malum magis de bono quam de malo praesumendum est odious and dishonest things are not presumed to be in the law and in a deed or action which hath in it both good and evil it ought to be more presumed of the good then of the evill as there in the case of the Chancellor of Oxford it was resolved that covin and fraud shall never be intended or presumed in the law unlesse it be expresly averred and in the case of Tier and Meriell Trin. 10. Jacob. That if no fraude be found by the Jurors the Judges shall not adjudge a Feoffment fraudulent and that though the Jurors have found circumstances and presumptions to intitle the Jurors to find fraude it is but evidence to the Jury and not any matter upon which the Court may adjudge fraude and the office of the Jurors is to adjudge upon the evidence concerning matter of fact and upon it to give their verdict and not to leave matter of evidence to the Court to judge which doth not appeare to them as if A. bring an action of the case against B. upon trover and conversion of Plate and Jewells and the Defendant pleadeth not guilty now it is good evidence to prove the conversion that the Plaintiff requested the Defendant to deliver them and he refused it and by it it shall be presumed that he hath converted them to his use yet notwithstanding that is but evidence and if it be found by a speciall verdict that the Plaintiff requested them of the Defendant and he refused it that is not matter upon which the Court can adjudge any conversion for the conversion ought to alter the action of detinue into a trespasse upon the case which a denier cannot in law make for in every action of Detinue there is alledged in the count a request and a refusall yet it is good evidence and hath allwayes been allowed to prove a conversion that the Plaintiff demanded the goods and the Defendant refused to deliver them Coke l. 10. In the case of the Chancellor of Oxford vide ibidem plura Nomen non sufficit si res non sit de jure aut de facto the name of a thing is not sufficient if the matter and substance be not of right or deed Coke l. 4. f. 107. b. Pope Vrbane at the request of Ralph Baron of Greystack founded a Colledge of a Master and six Preists resident at Greystock and assigned to every one of his Preists five markes by the year besides his Bed and Chamber and the Master forty pounds by the yeare and this certified in the Book of first fruits and tenths Rectoriam Collegium of Greystock and the said Colledge was in being five years before the Act of 1. E. 6. And it was resolved by all the Judges that such a reputative Colledge was not given to the King by the Act of 1. E. 6. because it had no lawfull beginning nor the countenance of a lawfull beginning for the Pope cannot found or incorporate a Colledge within this Realme nor to assigne or license others to assigne temporall livings to it for it ought to be done by the King and no other for the name doth suffice if the matter be not of right or deed Dier 81. Quando duo jura in una persona concurrunt aequum est ac si essent in diversis Reg. I. C. Ployd f. 368. a. when two rights concur meet together in one person it is all one as if they were in severall persons As if one hath an estate for the life of A. the remainder to him for the life of B. the remainder to him for the life of C. and he is disseised and the disseisor levieth
by discontinuance disseisin abatement c. and of this right is the saying to be understood that the right descendeth and not the Land which may be released to him in possession and this right is also called jus proprietatis as if a man be disseised of an Acre of Land the disseisee hath jus proprietatis and the Disseisor hath jus possessionis and if the Disseisee release to the Disseisor he hath jus proprietatis possessionis Coke com 266. a. but the reservation of a Rent upon such a release is voyd as if the disseisee release to the disseisor of Land reserving a rent the reservation is voyd Coke com 144. b. Neither can a bare right a right of entry or a thing in action be granted or transferred to a stranger by the ancient maxime of the Common Law Coke com f. 166. for that thereby is avoyded great oppression injury and injustice but if a bare right happen to be forfeited to the King he may grant the same by his Prerogative Frustra est potentia quae nunquam venit in actum Vaine is the possibility which never commeth into act Coke l. 2. f. 501. There is jus proprietatis possessionis possibilitatis and the right of possibility which dependeth upon the death of a man hath a necessary and common intendment to wit necessary in regard that all the issues of Adam must dye for statutum est omnibus hominibus semel mori and common because the death may happen at such a time that the contingency may take effect and this necessary and common possibility is called potentia propinqua which may come into act and is not therefore vaine or voyd in Law as in 15 H. 7. 10. If Lands be given to a marryed man and a marryed woman and to the heires of their two bodies ingendred this is a good estate in tail for it is of necessity that death shall ensue and in common possibility that one shall dye before the other so as the marryage may ensue but in the same case there shall not be possibility upon possibility and therefore if land be given to one man and two women there the Law shall not intend that first he shall marry one and then that shee that he shall marry shall dye and that he shall espouse the other and therefore in this case they have severall inheritances at the beginning as if Land be given to two barons and their femes and the heires of their bodies engendred in this case the Law shall not expect second marriages and therefore in this case they shall have joynt estates for life and one baron and feme one moyety in tail in common with the other baron and feme of the other moyety and so severall inheritances and with it accordeth 24. E. 3. 29. for otherwise there should be possibility upon possibility and if a man give Land to baron and feme there is an apparent possibility that they shall have issue but if after they be divorced causa praecontractus so as the possibility is dissolved the Law shall never expect the second marriage for by the divorce they have but an estate of Frank-tenement 4. H. 7. 16. 17. And a woman may enfeoff a married man causa matrimonij prae locuti for it is of necessity that death shall ensue and in common possibility that the Feme of the Feoffee shall dye before the Feoffee So in the common case of a lease for life the remainder to the right heires of I. S. the remainder is good for the necessary and common intendement vide ibidem plura in Lampets case Coke l. 10. f. 50. b. For the Law respecteth the right of possibility and will have nothing to be void that by possibility may be good As a mesnalty is given in tail reserving a rent this is good for the tenancy may escheate to the donee and then the doner shall distraine for all the arrearages 1. H. 4. 2. A man hath issue a daughter and leaveth his wife privement enseint the wife may detaine the Charters of her husbands Lands from the Daughter for the possibility it may be a Son shee goeth withall 41. E. 3. 21. b. But if A. be indebted to B. in two hundred pounds and delivereth goods to him to sell to pay his debt in the best manner he can and he is proferred two hundred pounds for them and refuseth and after selleth them for an hundred pounds A. shall answer the residue of the debt notwithstanding this possibility 18. E. 4. 5. But the possibility must be propinque and a common possibility as death or dying without issue or coverture or the like but if it be a remote possibility the Law doth judge it vaine because it shall not be intended by common intendement to happen as a remainder to a corporation which is not at the time of the limitation and remainder is void though such a corporation was after erected during the particular estate for that was potentia remota 9. H. 6. 24. For as Ployd f. 345. a. b. It is a principle in Law that all gifts be it by devise or otherwise they ought to have a donee in esse and not in posse who hath capacity to take them given when it ought to vest as devise of Lands in fee and so of goods if the devise dye before the devisor neither his Heire or Executor shall gaine any thing by this Will vide ibidem plura in Brets case So if a lease be made for life the remainder to the right heires of I. S. if at the limitation of the remainder there be not any such I. S. but during the life of tenant for life I. S. is borne and dyeth his heire shall never take as it is agreed in 2. H. 7. 13. And so in 11. E. 3. 46. the case was that upon a fine levied to R. he granted and rendred the tenements to one I. and F. his wife for their lives the remainder to G. the Son of I. in tail the remainder to the right heires of I. and at the time levied I. had not any son named G. but after he had issue named G. and in praecipe against F. it was adjudged that G. should not take the remainder in tail because he was not borne at the time of the fine levied but long after by which another who was right heire of I. S. was received for when I. had not any son named G. at the time of the fine levied the law doth not expect that he shal have a Son named G. after for that is potentia remota a remote possibility But if the remainder had been limited by a generall name as to the right heirs of I. or primogenito filio such a remainder might have been good for the common possibility But if a remainder be contrary to Law the Law shall never adjudge a grant good by reason of a possibility or expectation of a thing which is contrary to Law for that is potentia
remotissime vana which by the intendement of the Law never cometh into act Coke l. 2. f. 5. 2. n. b. in Sir Hugh Chomleys case vide ibidem plura And hereby the way may pertinently be observed that a possibility cannot be released as if before judgement the Plaintiff in an action of debt releaseth to the baile in the Kings Bench all demands and after judgement is given this shall not bar thee to have execution against the baile because at the time of the release he had but a meere possibility and neither jus in re or jus ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute release to the Conusor all his right in the Land yet afterward he may sue execution for he hath no right to the Land till execution but onely aâ— possibility and so have I known it adjudged Coke com f. 265. b. So if A. grant to B. that if he doe such an act he shall have an annuity of twenty pounds during his life before the Act done he cannot release the annuity Coke l. 1. in Albanys case Lex semper dabit remedium the law so favoreth right that it will suffer things against the principles of Law rather then a man to be without his remedy As a man who is outlawed may bring an action to reverse it an outlawry there is no Plea 4. H. 7. 40. The Tenant shall have a replevin against the Lord that did wrongfully distraine though the beasts be come back to himself because he can have no action of trespasse against him for that prisall and shall recover damages for the tortious prisall F. n. b. f. 69. H. A man after judgement is passed against him shall plead against the King a Charter of pardon or any such thing done in the meane betwixt the verdict and the judgement because against the King he can have no Audita querela 11. H. 7.10 otherwise it is against a common person And therefore is it a principle in Law cuicumque aliquis quid concedit concedere videtur id sine quo res ipsa esse non potest Coke l. 11. f. 52. a. Which Ploydon thus expresseth that it is held as a maxime in 2. R. 2. in trespasse that if any man hath interest to any thing by the grant and assent of another and the party who hath such interest cannot have the principall thing without doing the other thing that he may doe the said other thing and justify it because it is a meanes to come to his profit for there it is holden That if one grant to me all his Trees growing in his Woods I may cut them down and carry them through all his Land and though his Grasse be spoiled with the carriage he shall not have a Writ of trespasse of it for Trees are such things that if they be not carryed by Carts he cannot have them nor make his profit of them But if one sell all his Fish in his Pond and the Vendee dig a trench so as the water may run out that by such meanes he may take the Fish an action of trespasse will lye against the Vendee because he might take the Fish by Nets or other Engines but if there had been no other meanes to take them it had been otherwise and to come to the banks to fish he may well justify it for without it he cannot take them by any meanes so as a man shall alwayes justify the necessary circumstance where he hath title to the principall thing Ployd f. 15. 16. a. vide ibidem plura in Renigers case So when a Lessor in the Lease except the Trees and after hath an intention to sell them the Law giveth to him and to those who will buy them power as incident to the exception to enter and shew the Trees to those who will have them for without entry they cannot view and without view they cannot buy Coke l. 11. f 52. in Lisords case So 19. H. 6.29 A man seised of a mese in a Burrough c. devisable deviseth it to his wife in taile and that if his wife dye without issue that his Executor may sell it and it dispose for his soule in this case the Executor may by the Law enter into the house to see whether it be well repaired or no to the intent to know at what valew he may sell the reversion And the Law giveth power to him who will repaire a Bridge to enter in the Land and to him who hath a Conduit within the Land of another to enter into the Land for it to mend as cause shall require as it is resolved in 9. E. 4.35 Coke ibidem vide plura And Coke l. 5. f. 12. a. If a man hath Mines hidden within his Land and leaseth his Lands and all his Mines in it there the Lessor may dig for them for quando aliquis quid concedit c. and this accordeth with 9. E. 4.8 that if a man lease his Land to another in which there is a Mine to wit an hidden Mine he cannot dig for it and if he doe it is wast but if he lease his Lands and all the Mines in it it is otherwise for the reason aforesaid vide ibidem plura in Saunders case If tenant at will soweth Corne on the ground and the Lessor out him he shall have free entry egresse and regresse to carry it away for when the Law giveth any thing to any one it giveth implicitly whatsoever is necessary for the taking and enjoying of the same and the Law driveth him not to an action for the Corne but giveth him a speedy remedy to enter into the Land and to take and carry it away and compelleth not him to carry it at one time or to carry it before it be ready to be carryed and if the Lessee be disturbed of this way the Law doth give unto him he shal have his action upon the case and recover his damages for whensoever the Law giveth any thing it giveth a remedy for the same Coke com f. 56. a. If there be Lord Mesne and Tenant and the Lord purchaseth the tenancy in fee the mesnalty is extinct but whereas the tenant held of the meane by five shillings and the mesne of the Lord by twelve pence so as he hath more in advantage by foure shillings he shall have the foure shillings as a rent-seck yearly of the Lord and yet he shall distraine for it for seeing the mesnalty is extinct the Law reserveth the distresse to the rent for quando lex aliquid concedit c. And therefore if a man maketh a Lease for life reserving a rent and bindeth himselfe in a Statute and hath the rent extended and delivered unto him he shall distraine for the rent because it cometh to him by course of Law Multa constituuntur in lege ne curia Domini Regis deficeret in Justitia
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
consisteth in idlenesse for idlenesse is the mother of all vices and as Coke there saith principally in young men who ought in their youth to learne profitable sciences and trades which are profitable to the weale publick of which they may reape the fruites in their old age for jeunesse oisense vilesse disettense if in our youth we be idle in our old age we shall be indigent and for that reason the common Law detesteth all Monopolies which prohibit any one to work in any Lawfull trade and that appeareth in 2. H. 5. b. A Dyer was bound that he shall not use his Diers craft for two yeares and there Hull said that the obligation was against the common Law and that by God if the Plaintiff were here he should goe to prison untill he had made fine to the King and so for the same cause if an husbandman be bound that he shall not till and sow the ground the obligation is against the common Law And therefore the act of 5. Eliz. c. 4. that prohibited any person to use or exercise any craft mistery or occupation unlesse he had been an Apprentice for seven yeares doth not make provision onely to the intent that the artificers may be skilfull but that young men shall not be idle in their youth but trained and brought up in lawfull sciences and trades and so by the same reason the common Law doth not prohibit any person to use many Arts and Misteries at his pleasure for nemo prohibitur plures negotiationes sive Artes exercere untill it was prohibited by the Act of Parliament 37. E. 3. 6. That all Artificers c. are bound every one to one mistery and that none use other mistery but that he hath chosen but because that restraint of free trade was prejudiciall to the weale publick at the next Parliament it was enacted that all people should be so free as they were before that Ordinance by which it appeareth that without Act of Parliament no man can be in any manner restrained to worke in any lawfull trade Non negligentibus sed impotentibus succurrendum Reg. I. C. Vigilantibus non dormientibus jura subveniant Ployd f. 357. b. The Law helpeth and releiveth those are impotent not those are negligent As if you disseise me of my Land and then A. bringeth a Writ of right against you and you joyn the mise upon the meer right and you make default after the mise joyned he shall recover to him and his Heires for ever quit of you and your Heires for ever and if I doe not lay my claime within a yeare a day I am barred for ever for the Law succoureth those that are watchfull and not sleepy so as non-claime by a yeare and a day upon a recovery by default where finall judgement is given was a good Bar by the common Law 5. E. 3.222 by Hor. A descent cast during the Coverture where the wife is disseised barreth her not of her entry after her husbands death but if a feme-sole be disseised and then taketh an husband there a descent during the coverture taketh away her entry for it was her folly to take such an husband that entred not in time Littleton 95. Negligentia semper habet comitem infortunium Coke l. 8. f. 133. a. Sa. Turnors case An Executor of an Administrator ought to execute his office and administereth the goods of the dead lawfully truly and diligently Lawfully in the payment of all dueties debts and legacies in such precedency and order as they ought to be paid by the Law truly to convert nothing to his own use and ought not by any practise or devise to bar or hinder any creditor of his debt but ought truly to execute his office according to the trust reposed in him And diligently as in the case at bar for when the Administrators which had judgement for one hundred pounds for sixty pounds and the Plaintiff offered a release or to acknowledge satisfaction and he deferreth it to the intent that the Judgement shall stand in force by which the Plaintiff shall be defrauded of his due debt and the Administrators to convert the goods of the debt to their private use let the agreement be precedent before the recovery or subsequent since the recovery it is all one as to the creditor who is a third person for he is defrauded as well by the one as the other and the creditor who is a stranger shall loose his debt which is by the Law due to him and if any prejudice accreweth to the Administrators in this case it is in his own default for the Plaintiff would have released to them or acknowledged satisfaction but they defer it to the intent to bar the Plaintiff of his just and true debt and negligence hath allwayes misfortune or ill luck for her companion Ibidem Coke l. 2. f. 26. b. If a creditor upon a commission upon a Statute of Bankrupt either by obstinacy doe refuse or by carelessnesse neglect to come before the Commissioners within the time limited and to crave the benefit of the Act he looseth the benefit thereof for the Law releiveth those which are vigilant and not dormant for otherwise a debt may be concealed or a creditor may absent himselfe and void the proceedings of the Commissioners and every creditor ought to take notice of the commission it being a matter of record Coke l. 4. f. 10. b. in Bevills case it was said that the Act of 32. H. 8. c. 2. by expresse words extendeth onely to actuall possession and seisin and not to releive those which for so long time had neglected to have actuall seisin of their services and namely of suite which ought to be made twice every yeare and it was said that it was crassa supina negligentia which that Law did not intend to releive for as it is commonly said vigilantibus c. Ibidem Coke l. 4. f. 82. b. in Sir Andrew Corbets case who deviseth Lands to R. C. and others to have and to hold to them and the survivor of them untill such time that the summ of eight hundred pounds c. was received out of the issues rents c. for the preferment of his Daughters it was resolved though the Devisee had notice of the devise yet if a stranger had occupied the Land the Devisee ought to take notice at his perill for vigilantibus c. and none by the Law in such case is bound to give him notice as in the case of arbitrement 1. H. 7.5.8 E. 4.1 ibidem And this is the reason of a lapse incurring for want of presentment or of a warranty barring for lack of entry or of descents barring for want of claime and a title to tenant in courtesy is lost for lack of entry and that Statutes of limitation do bar actions One seised of Lands devisable deviseth that his Executors shall sell his Land and distribute the profits for the use of the poore and dyeth If a
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
is an Accessary Ployd 175. But if it be to kill I. S. and he killeth I. D. mistaking him for I.S. then he is no accessary because it is different in substance And if I bid I. S. to steal such things out of an house without breaking of the house and yet he breaketh the house I am accessary to the Burglary But if a man bid one rob I. S. as he goeth to Sturbridge Faire and he rob him in his house he is not accessary for the variance is of substance Ployd ib. 175. Quando aliquid mandatur mandatur omne per quod pervenitur ad illud Coke l. 5. f. 115. b. when any thing is commanded every thing is commanded whereby we may come to it Whereas a Writ of Estrepment will lye in an action of Wast because he cannot receive more damages then are contained in the Count and can assign no Wast after the Writ purchased if a Writ of Estrepment commeth to the Sheriff by virtue of it he may resist those which will make waste and if otherwise he cannot yet it is lawfull for him to imprison them and to make Warrants to others to do the same and if it be necessary he may take a Posse commitatus for his aid though the words of the Writ onely be that he shall personally go to the Messuage and altogether take order that no wast or estrepment of the said Messuage be according to the foâ—m of the statute whilest the said plea hangeth indiscussed because when any thing is commanded every thing also is commanded by which we may come to it Quando aliquid prohibetur prohibetur id per quod pervenitur ad illud Col. 9. f. 57. a. then any thing is forbidden that also is forbidden by which we come to it As confederation and combination among men uniting themselves together either by obligation or by promise to execute any unlawfull act is punishable by Law before the unlawfull act be executed and the Law punisheth the combination and the confederacy to the end to prevent the unlawfull act and therefore the usuall commission of Oyer and Terminer giveth power to the Commissioners to enquire of all combinations confederacies and false allegiancies and false allegiance is a false binding of anyâ— one to another by Obligation or promise to execute an illoyall act Boni judicis est lites dirimeâ—e expedit reipub ut sit finis litium propter communem omnium utilitatem Coke l. 5. f. 73. b. It is the part of a good Judge to cut off strifes and it is profitable to a Common-weal that there be an end of Suits for the common good of all in Williams case When a Chappell is not private to the Lord and his Family but is publick and common to all the Tenants of the same Mannor who may be many and of great number there no action upon the case lieth against the Vicar who ought and is bound by prescription by himself or some other to celebrate Divine Service in his Chappell c. for then every one of his Tenants may also have an action upon the case as well as the Lord himself and so infinite actions for one default but it is the part of a good Judge to break and put of suits and strifes c. and it is profitable to the Common-wealth that there be an end of suits for otherwise great oppression may be under the colour and pretext of Law For as Coke l. 6 f. 9. a. If there should be no end of suits then a rich and malicious man will by actions and suits infinitely vex him who hath right and in the end because he cannot attain to any end compell him to redeem his charge and vexation and to leave and relinquish his right vide ibidem plura And therefore Coke l. 9. f. 73. b. Accords with satisfaction are much favoured in Law for the interest of the Common wealth that there may be an end of suits and Coke com f. 306 b. every plea ought to be tryable for without tryall the case will never come to an end which would be discommodious to the republick And therefore doth the Law shun circuity of actions and such actions as are needless and may be saved and as Coke l. 5 f. 31. Circuitus est evitandus As if he that hath ten pounds issuing out of certain land disseiseth the Tenant of the land In an assise brought by the Disseisee the Disseisor shall cut off the rent in the damages insomuch as if the mean profits of the land were at the value of thirteen pounds the Disseisee shall recover but three l. 3 H. 6. 18. and the Disseisor shall cut of all the damages he hath expended in repairing the houses 14 E. 3. 92. and if Rent-service happen during the Disseisin it shall be cut off 9 E. 3. 8. and the reason of the cutting off in such case is because that otherwise the arrearages of the rent-service charge or seck shall be revived and therefore to avoid cercuity of action the arrearages during the Disseisin shall be cut off in damages Coke com f. 265. a. If there be Father and Son and the Father be disseised and the Son living the Father releaseth to the Disseisor all his right which he hath or may have in the same Tenements without clause of Warranty and then the Father dieth the Son may lawfully enter upon the possession of the Disseisor because he had no right in the land in his Fathers life but the right descended to him after the release made yet if there had been a Warranty annexed to the release then the Son should be barred for the Warranty may rebutt and bar him and his Heires of a future right which was not in him at that time and the reason wherefore a Warranty shall bar a future right is for avoiding of circuit of action as he that made the Warranty should recover the land against the Ter-tenant and he by force of the Warranty to have as much in value against the same person ibidem Upon the grant of a Ward with Warranty the Defendant in a Writ of right of Ward may rebutt the Plaintiff by that Warranty and shall not be driven to bring an action of Covenant for avoiding circuit of action Finch f. 55. In an action of Waste upon a lease of yeares by Deed and in the same Deed the Lessor granteth to the Lessee that he shall not be impeached of waste the Lessee may plead this in an action of waste and shall not be driven to bring an action of Covenant for avoiding circuit of action When a Father enfeoffeth his Son and Heir with Warranty and dieth now the Son in a Praecipe brought against him may vouch the Feoffor of his Father for the Law will not suffer him to vouch himself and when he cometh in as Voucher then to deigne the Warranty for the circuity of Voucher Malificia non debent manere impunita impunitas continuum
other Souldiers but English L. 1. de repub c. 21. though he had enjoyed and lived in peace for the space of thirty yeares whereas the French were continually conversant exercised in the Italian Warrs yet that prudent King who knew well that he had so ordered the Realme that in the time of peace the feats of armes were practised and military discipline exercised both attempted the conquest of France and fortunately effected it The same Encomium doth he give of Epominondas who redeeming the Thebans from the servitude of the Spartans so instructed them in the forme of military discipline that through their aid though effeminated by service he gave the Spartans a mighty defeate and overthrow for the care and faith of Domestick and Native Souldiers is greater and firmer and for the honour of their Prince and glory of their Country will fight more fiercely ita ut consensu quodum saith Seneca protegendi amandique regem conspirasse intelliguntur so as they are conceived to have conspired with an unanimous consent of protecting and loving their King Whereas mercenaries and strangers are commonly tumultuous and refractory and love not to be commanded Tac. 4. hist Tac. theagiae or governed but as Tacitus omniae ex libidine agunt love to doe what they lift and which is most perilous are perfidious non fide non affectu tenentur are not held nor kept by faith and affection but there faith dependeth on fortune which inclining to the Enemy thither doe they for the most part bend their mindes and forces by which meanes as one truly externo pessundata milite regna and as Curtius insidiosae fiunt illorum domini Kingdomes are sometimes ruined and by treachery they themselves become Lords and Masters of their leaders L. 1. f. 13. Polibius relateth that Carthaginians waging Warr with the Romans had their army mixed with Spaniards French and fugetive Grecians and that having made peace with the Romans intended to dismiss them who amounted to the number of twenty thousand which they perceiving suddenly drew themselves into a military body and made head against the Carthaginians and forced some of their Cities to subject their Forts to their Forces in so much as the Carthaginians were compelled to crave aid of the Romans to resist and repell them through whose assistance Hamilcar circumvented and inclosed them in narrow streites and places so as more of them perished by famine then the sword and Hamilcar by the consent of all was called salvator patriae the Saviour of his Country to this purpose I could plaustra exemplorum accumulare accumulate Cart-loades of examples how dangerous a thing it is to call in strangers to their aid and especially in any great number which plainely appeareth by the perfidiousnesse of the Saxons who though they came at the first as Mercenaries yet once admitted and sensible of their own power they soone grew Masters and Lords of the Brittons and therefore Livy giveth this sound counsell to them who are necessitated to introduce the aid of strangers that their Captaines be so circumspect quod non ita externis credant auxillijs ut non plus sui roboris suarumque pâ—oprie virium in castris habeant Livy l. 25. that they doe not confide so much in externall aid that they have no more of them in their army then their own strength and power will keepe in awe Multum potest in rebus humanis occasio plurimum in bellicis Poly. b. Coke com 71. a. Occasion and opertunity prevaile much in humane things but most of all in Marshall affaires In ancient time Kings had the supremacy over others of commanding 2. Reg. c. 8. or commencing War as appeareth by the sacred History yet sometimes upon necessary cause if there be danger in delay or the soveraigne Commander be absent War may be undertaken without the commandement of the Prince if it be upon necessary occasion of just defence which by the Law of nature is granted to every one So though the Consull Marcellus had the supreame command in Sicily yet L. Pinarius who was Captaine of the Garrison of Enna in Sicily when he did foresee the revolt and defection of the Citizens of Enna to the Carthaginians Livy l. 24. and he could not send Ambassadors to the Consull Marcellus though he was not far from thence suddenly he did kill all the Carthaginians by which Act Enna was still retained for the Romans and Marcellus did not disallow the fact And therefore Cicero commendeth the enterprise of Octavius Caesar who not expecting the decree of the Senate did of his own head make War against Antonius for if he had then omitted the time of battaile he did well foresee that the common Wealth would be suppressed and that then nothing could be decreed by the Senate and the Senate did after allow by publick authority the War undertaken by Octavius of his own private advice so Scipio Nasica did deserve exceeding commendation who voluntary without any decreed authority did offer himselfe a Captaine to all good Romans for the suppressing of Tibeâ—ius Gracchus and his treacherous confederates for it is necessary in such perturbations and tumults rather to obey times then customes for in peace we must obey custome in War the times and occasions Inter arma silent leges Coke l. 9. Ep. ad Lectorem When Armes and Weapons sway The Lawes are at a stay War was first brought in by necessity for in that decisions in Courts of Law and the determining of controversies by their rules could not be between two strange Princes of equall power unlesse they should willingly agree to such an order because they have no superior nor ordinary Judge but are supreame and publick persons and therefore the judgement of Armes is necessary because such War against them cannot be bridled by Law and by this and many other cases War is lawfull though many mischeefes doe staine it for good doth ensue of it and Princes by it obtain their rights and rebells are reduced to obedience and peace accorded and that whose end is good is also good it self to which and to common equity without bloodshed and these injuries of war men do seldome attain But when the Lawes of War and Arms do rule the civill Lawes of peace are silent and of little or no force As in the Conquerors time the Lawes did seem to be silent for in all the time of his Raign either his Sword was alwaies drawn or his hand was continually on the Hilt ready again to be drawn and as Bacon the Conqueror got by right of conquest all the lands of the Realm into his own hands in demesne taking from every man all Estate Terme property and liberty of the same except Religious and church-Church-lands and the lands of Kent and still as he gave any of it out of his own hand he reserved some retribution of rents or services or both to him and to his Heirs which reservation
shall give notice of the said felony to some of the Inhabitants of any Village or Hamler next the place where the robbery was done and that if in their pursuit they take any of the Offenders that shall excuse them though they do not take all See there in that Statute the reason of the alteration Co. l. 6. f. 50. a. b. At the common Law a man that had once the benefit of the Clergy shall have it another time and so in infinitum which was remedied by the Act of 4 H. 7. So as the burning in the hand was not to other purpose but to notifie to the Judge whether he had had his Clergy before or no ibid. So if one be attainted at the Common Law for forging false Deeds the King cannot pardon it yet the King may pardon the corporall punishment in case of forgery in the Star-chamber because all Suites in the Star-chamber are but informations for the King though the Suit be exhibited by the party ibidem So before the Statute of 18 Eliz. c. 7. the King might in case of Inditement of Man slaughter pardon the Imprisonment 15 H. 7.9 but not in an appeal but after the Statute of 18 Eliz. by which it is provided that after Clergy allowed and burning in the hand the Prisoner shall presently be enlarged and delivered out of prison It was resolved that that Act did extend as well to the case of appeal as to the case of Inditements otherwise the party shall lawfully be discharged of his punishment and yet remain in perpetual prison ib. vide examen legum Angliae f. 29. Cessante ratione legis câ—ssat lex Coke com f. 70. b. The reason of the Law ceasing the Law it self ceaseth As he that holdeth his land by Escuage when the King maketh a Voyage royall into Scotland to subdue the Scots then he that holdeth by the service of one Knights fee ought to be with the King conveniently arrayed for the War for forty daies c. yet needeth he not go with the King himself if he will find another man and this seemeth to be good reason for it may be he is languishing so that he cannot go nor ride Also an Abbot or another man of religion or a Feme-sole which hold by such services ought not go in proper person Littleton ibidem Quia multa In jure communi propter rationabilem causam omittenda sunt for many things for a reasonable cause are to be omitted If the King give lands to an Abbot and his Successors to hold by Knights service this had been good and shall do homage and fine a man but there was no wardship or releif or other incident belonging thereunto but if the Abbot and his Heirs had conveyed the land to a natural man and his heirs now the wardship releif or other incident belonged of common right to the King So if the King give lands to a Mayor and Comminalty and their successors to be holden in Knights-service the Patentee shall do no homage neither shall there be any wardship or releif onely they shall find a man but if they convey the land to any naturall man and his heirs now marriage homage ward releif or other incidents belong hereunto for the reason of the Law being changed the Law its self is changed and the immunity which was in respect of the body politique by conveyance over ceaseth Coke ibid. Qui rationem in omnibus quaerunt rationem subvertant Theophrastus Coke l. 2 f. 7.30 who do seek reason in all things overthrow reason As if a man make a Lease of Indenture for life of lands in severall Counties and maketh livery of seisin in one County and divers daies after he maketh livery in the other County yet an intire rent shall issue out of the land in both Counties and yet the livery by which the Estate passed was made at severall times and therefore it may be argued that presently by the first livery the rent issued out of it But the Law shall not adjudge by parcels in subversion of the intent and agreement of the parties but after all Acts are made in performance of the originall contract and agreement of the parties the Law shall adjudge upon all as done at one and the same time So if a man make a Charter of Feoffment with warranty and deliver the Deed to the Feoffee and after at another time make livery secundum formam chartae yet the Warranty is good and yet it may be objected that when the Deed was delivered no estate passed to which the warranty may be annexed nor no estate was in the Feoffee by which the Deed might enure and so by nice construction upon the distinction of time the warranty shall be subverted but the Deed which comprehended the warranty took effect presently by the delivery of the Deed before livery and seisin and therefore the sentence is true that who do seek reason in all things subvert reason ibidem SECT II. A Verbis legis non est recedendum Coke l. 5. f. 118. b. we ought not to go from the words of the Law Edriches casc A. deviseth rent with distress to B. for the life of C. the heire leaseth the land for life to D. the remainder to E. in see the rent is behind in the life of D. D. dieth C. dieth B. distraineth for the arrearages of E. in remainder and resolved that he shall be charged by the second branch of 32 H. 8. c. 37. which giveth a distress for the arrearages upon such lands out of which the said rents were issuing in such manner and form as if Cestuy que vie had been living And the Judges said that they ought not to make any interpretation against the express letter of the statute for nothing can so express the intent of the makers of the act as their direct words themselves for Index animi seâ—mo and it shall be perilous to give scope to make construction in any case against the express words when the intent of the makers appeareth not to the contrary and when no inconvenience upon it shall arise for we ought not to go from the words of the Law vide ibidem plura Coke l. 10 f. 105. a. b. If in an Assise so many of the Recognitors make default that there be not twelve the Justices of Assise cannot award Tales de circumstantibus for though the Justices of Assise are named in the said Act of 35 H. 8. as well as the Justices of Nisi prius yet insomuch as the said Act doth not give power to Justices of Assise or Nisi prius but where the tryall shall be by twelve men in any Writ of Habeas Corpora or Distringas with Nisi prius and it cannot be in an Assise for Assisae capiamur in proprio Comitatu and can never be taken by Nisi prius in proprio commitatu and no exposition can be made against the express words for that shall be viperina expositio quae
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
of debt for the arreaâ—ages before the coverture yet when as the Statute giveth to the Baron an Action of debt for the arrearages the words shall be taken with effect and shall be construed for the arreages due before It is a rule in the Law that verba restringuntur ad habilitatem personae vel ad aptitudinem rei Bac. Max. f. 14. Generall words are to be restrained to the condition of the person or fitnesse of the thing as if a man grant to another common inter metas bundas villa de Dale and part of the vill is his severall and part of his wast common the Grantee shall not have common in the severall yet this is the strongest exposition against the Grantor so by all the precedent rules and grounds it appeareth that the rule that words shall be taken more strongly against the Grantor doth yeild to them as the more worthy and equitable vide ibidem plura where this rule with its differences and exceptions is amply and accurately discussed The grant of a common person shall be taken more strong against him but the grant of the King shall be taken more strong against a stranger and more favorable for him Ployd f. 243. a. As a Mannor granted by the King the advowson shall not passe without speciall words 2. H. 7. 8. So the King may grant a thing in action Ibidem And if the King grant a Mannor or Land without limitation of any estate the grant is void for the incetrainty and the Grantee shal not be tenant at the will of the Lord Davis Rep f 45. vide ibidem plura This rule hath no place in Acts of Parliament Verdicts Judgements or Devise Bacon f. Max. 21. Expressio eorum qâ—ae tacite insunt nihil operatur Coke l. 4. f. 73. b. The expression of those things which are covertly implyed worketh nothing for the expression of a clause which the Law implyeth operateth nothing as in 30. Ass Pl. 8. A Lease is made to two for terme of their lives diutius eorum viventi and after they made partition and the one dyeth and he in reversion entereth and his entry adjudged lawfull notwithstanding the said words diutius eorum viventi for without those so much was covertly implyed by the Law 17 E. 3. 7. Hulls case whereupon Coke giveth this observation that in case of lease for life it is more beneficiall for the Lessor to have the joynture severed then to have it continue but otherwise it is in a Lease for yeares for if a man makes a Lease for yeares to two with a proviso that if the Lessees dye within the terme that the terme shall cease the Lessees make partition or one alieneth his part and dyeth the Lessee shall not enter into his part that is dead but the Grantee or the Executors of the Lessee shall 〈…〉 So if the King maketh a Lease for yeares rendring rent without limiting of any place or to whose hands it shall be paid the Lessor may by the Law pay it either to the receipt of the Exchequer of the King or to the hands of the Bailiffs or receivors of the King whom the King hath authorized to such purpose and therefore the usuall and speciall limitation of the payment of rent at the receipt of the Exchequer c. doth import no more then the Law will imply and therefore nihil operatur Ibidem Coke l. 8. f. 26. b. If the King reciting that another holdeth the Mannor of D. for life granteth the said Mannor to B. for his life in this case the Law implyeth that the second grant shall begin and take effect after the determination of the first grant and therefore there is no incertainty in the grant though it be not expressed so for the expression of a clause which the Law implyeth operateth nothing ibidem in the Earle of Rutlands case Coke l. 10. f. 39. a. By the Statute of 32. H 8. Tenant in taile may make a Lease for three lives or ten yeares and by the Statute of 4. H. 2. c. 24. he may levy a fine and by the Statute of 32. H. 8. c. 36. by it bar the issues and therefore if a man make a guift in tail and further grant that he may lease for life or for yeares or levy a fine with proclamations to bar the Issues nihil operatur for when one maketh a tacit guift in taile he giveth those incidents to it Ibidem And therefore are such conditions and expressions called by Sir Francis Bacon clausula vel dipositio inutilis an unprofitable clause and disposition and to no use because the act or the words do express no more then the Law by intendment would have supplyed and that therefore the doubling and iterating of that and no more then which the conceite of the Law doth in a sort prevent and preoccupate is reputed nugation And thâ—refore if a man devise Land at this day to that they must worke some thing and not be idle and frivolous in Edward Foxes case wherein it was his Son and heire it is void because the disposition of the Law did cast the same upon the heir by descent 32. H. 8. Gourd 39. Ber. And yet if it be by Knights service Land and the heire within age if he take by the devise he shall have two parts of the profits to his own use and the guardian shall have the benefit but of the third Brooke devise 41. But if a man devise Lands to his two Daughters havnig no Sons then the devise is good because he doth alter the disposition of the Law for by the Law they shall take in coparcenary but by the devise they all take joyntly Dyer 12. Bacon f. 74.75 vide ibidem plura Yet Littleton saith it is well done to put in such clauses to declare and expresse to the lay people which are not learned in the Law what the Law is in such cases Co. lib. 4. f. 73. b. Expresum facit cessare tacitum Coke com f. 183. b. A matter or thing expressed causeth that to cease or to be of no effect which by intendement of Law was implyed and not expressed As if one grant Lands to two without expressing what estate they shall have they have a joynt estate for terme of their lives but if a Lease be made to two Habendum to the one for life the remainder to the other for life this doth alter the generall intendement of the promises so if a Lease be made to two Habendum the one moiety to one and the other moiety to the other the Habendum doth make them tenants in common for that which is expressed doth make that which is secretly intended to cease Ibidem for as he in another case saith if the generall words should stand without any qualification then the speciall words should be altogether vaine Coke l. 8. f. 154. in Edward Althans case quod vide Coke Com. f. 210. a. b. If the Feoffee in mortgage before
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
intent which is required in Inditements Counts and Replications c. for that they are to excuse or charge the party the third is a certaine intent to every particular and this certainty is rejected in Law for nimia subtilitas in jure reprobatur and such certainty confoundeth certainty vide ibidem plura in Longs case Coke l. 8. f 56. b. Whereas the Queen granted a Mannor to B. and his heires to have and to hold the said Mannor to B. and his assignes omitting the words heires in the Habeâ—dum it was resolved in Auditor Kings case by the whole Court that the fee of the Mannor passed by the Premisses of the Letters Patents and that the Habendum was void for the Premisses were certaine enough to passe the Fee-simple and the omission of his heires in the Habendum shall not subvert it was certaine in the Premisses for the intention of the Queen appeareth to passe the Fee-simple by the Premisses and her grant ought to be interpreted in intentionem non in deceptionem Regis and when as a litterall and strict construction is made to make his grant void contrary to the intention of the King it soundeth in deceite of the King and it is a great indignity to him for nicities in Law to make his Charter under the great Seale of England of things which may be lawfully granted void and of none effect for Apices juris non sunt jura and it was said by Coke Lord cheife Justice and affirmed by the other Justices that of latter times such nice and strict constructions have been strayned by some of Letters Patents to subvert the force and effect of them that many good Letters Patents are drawn into question to the dishonor of the King and disinherison of the Subject contrary to the true reason and ancient rule of Law for as it is said Co. l. 4. f. 5. b. Simplicitas legibus amica Coke l. 10. f. 125. b. In the Mayor c. of Lynns case it is said that untill these latter times it was never read in any of our Books that any body politick or corporate did endeavour or attempt by any suite to avoid any of their Leases Grants and Conveyances made to them by the misnaming of the very name of the Corporation but God forbid that their Leases and Grants should be defeated for every curious and nice misnomer vide ibidem plura in the Mayor c. of Linns case where it was adjudged that a bond made to the Mayor and Burgesses of Linn was good though therein was omitted the Burrough of Kings Linn which was their name given them by their Patent because it was idem re sensu though not idem litteris Syllabis Fortior potentior est dispositio Legis quam hominis Coke com f. 224. a. The disposition of the Law is of more force and stronger then the disposition of man If a man grant to another by his deed the office of a Parkship of a Park to have and occupy the said office for terme of life he hath an estate in that office upon condition in Law to wit that the Parker shall well and lawfully keep the said Parke and shall doe that which to such office appertaineth to doe or otherwise it shall be well lawfull to the Grantor and his heires to oust him and grant it to another and such a condition in Law annexed to a thing is as strong as if the condition had been put in wrting Littleton ibidem If a man hath title to enter upon tenant in taile if he maketh a claime to the land then is the estate taile defeated for this claime is an entry made by him and is of the same effect in Law and if the tenant in taile after such claime continueth his occupation that is a disseisin to him that made such claime and as often as his adversary doth wrong and injury to him so often may he bring a Writ of Trespasse or a Quare clausum fregit for the wrong disseisin Littleton whereby it appeareth that continuall claime which is an entry in Law is as strong as an entry in deed Coke com f. 236. b. Coke com f. 338. a. A surrender in Law in some cases is of greater force then a surrender in deed as if a man maketh a lease for yeares to begin at Michaelmas next this future interest cannot be surrendred because there is no reversion wherein it may be drowned that by a surrender in Law it may be drowned as if the Lessee before Michaelmas take a new Lease for yeares either to begin presently or at Michaelmas this is a surrender in Law of the former lease and in this case Fortior aequior est dispositio legis quam hominis Coke l. 10. f. 67. b. 37. H. 6. 16. And if the Lessees be a corporation aggregated of many so as they cannot make an expresse surrender without deed in writing under their seale yet they can by act in Law surrender their terme without any writing So if the Prior by consent of the Covent maketh a Lease for yeares rendring rent if the prior by Deed expresly releaseth the rent and dyeth the Successor shall recover the arrerages but if the Prior oust the Lessee and dyeth that discharge in Law shall discharge the rent which incurreth during the ouster against the Successor 34. H. 6. 21. Coke l. 10. f. 67. If an heire within age assigne more dower then he ought to have done yet the guardian in right may have a Writ of Admeasurement of dower but if he grant over his estate his Assignee which is guardian in faire shal not have the Writ because it was a thing in action given to the Lessor F. N. B. 149. 9. Coke l. 6. 38. b. When a Deed is requisite ex institutione legis it ought to be shewn though it be collaterall and convey nothing as a Mayor and Comminalty Tenant Pur autre vie if he attorne to the Grantee in reversion the Law requireth that it be done by deed and that in pleading the deede of Attornement be shewen but when it is requisite ex provisione hominis not as when a man maketh a Lease for yeares of Land to A. upon condition that he shall not assigne it over but by deed onely and not by word in this case ex provisione hominis the Assignement ought to be by deed but because ex institutione legis the Deed is not necessary to the Assignee he may plead the Assignement without shewing of the Deed and in quo minus by the fermor of the King he ought to alledge that he is a fermor of the King to enable him to sue there but he need not shew it to the Court because a collaterall action ibidem So the Collector shall not shew it 22. H. 6. 42. neither shall the Sub-Collector shew it 21. E. 4. 50. And the Devisor shall not shew the Testament for it appertaineth to the Executor 4. Ass 20. One Parcener
may have a Quare impedit against another if shee be disturbed of her presentment by turne so cannont Joyn-tenants or tenants in common F. N. B. 34 I. For equality of partition among Coparceners a rent granted shall be a Fee-simple without the word heires Coke com f. 10. a. Coke com 102. a. Homage ancestrell is a speciall Warranty in Law and the Lands generally which the Lord hath at the time of the Voucher shall be lyable to execution in value whether he hath them by descent or purchase but in the case of an expresse warranty the heire shall be charged onely with such Lands as he hath by descent from the same Ancestor so in this case Firmior potentior est operatio legis quam dispositio hominis Lease upon condition that if it happen that the Lessee make any wast in or upon the Premisses it shall be lawfull for the Lessor to re-enter and the Lessee suffereth the house to fall in default of covering and reparations Dyer and Wash said that the Lessor might re-enter for such wast is punishable by the statute of Gloucester for destructionem facere in domibus Dyer 281. b. and so it is if he suffer wast to be done by a stranger Doct. Stud. l. 2. c. 4. yet if the Tenant had been bound in an Obligation that he shall do no wast he shall not forfeit his Bond by the wast of a stranger for greater is the operation of the Law c. A man is seised of three Mannors of equall value and taketh a wife and she taketh one entire Mannor for her Dower which is charged with a rent she shall hold it charged otherwise it is if she had recovered her Dower by a Writ of Dower and had had a third part of each assigned to her Inutilis labor sine fructu non est effectus legis Non licet quod dispendio licet Sapiens incipit a fine Et lex non praecipit in utilia Coke com f. 127. b. The Law commandeth no vain chargeable and unprofitable things As a Villain by the Law shall not have an appeal of Mayhem against his Lord for in an appeal the Mayhem man shall onely recover damages and if the Villain in this case recovereth damages against his Lord and thereupon hath execution the Lord may take it that the Villain hath in execution from the Villain and so the recovery void inutilis labor stultus and unprofitable labour is foolish and idle which the Law prescribeth not Coke com f. 197. a. Tenants in Common of an Hawk and an Horse shall joyn in Assise for otherwise they would be without remedy for one of them cannot make his plaint in an Assise of the Moyety of an Hawk or Horse because the Law will never inforce a man to demand that which he cannot recover as the Moyety of an Hawk or an Horse or any other entire thing for Lex neminem cogit ad vana in utilia Coke com f. 319. b. If a Lease be made for term of life the remainder to another in tail the remainder over to the right Heirs of the Tenant for life and Tenant for life granteth his remainder in fee to another by his Deed the remainder shall presently pass without any Attornment for none can atturn but himself and it were in vain that he should atturn upon his own Grant for quod vanum est lex non requirit Coke l. 5. 84. a. Where a man is in custody of the Sheriff by process of Law and after another Writ is delivered to him to take the body of him who is in custody presently he is in his custody by force of the second Writ by judgment of Law although he make not an actuall arrest of him for to what purpose shall he be arrested of him who is and was before in his custody for the Law prescribeth no fruitless things Actus legis nemini facit injuriam Coke com 178. a The Act of Law doth injury to none As if the land out of which a rent-charge is granted be recovered by an elder Title and thereby the rent-charge is voided yet the Grantee shall have a Writ of Annuity because the rent-charge is avoided by course of Law So if Tenant for another mans life grant a rent-charge by Deed to one for one and twenty years Cestuy que use dieth the rent-charge is determined yet may the Grantee have during the years a Writ of Annuity for the arrearages incurred after the death of Cestuy que use because the rent-charge did determine by the act of God and course in Law which wrong no man ibid. Coke l. 5. f. 87. a. If the Defendant in debt dieth in execution the Plaintiff shall have a new execution by Elegit or Fieir facias because otherwise the Plaintiff should lose his debt without any default in him and the act of God and the act in Law will not prejudice any one Trewgrijard being a Burgess of the Parliament who was taken upon an Exigent post capias and yet upon his Writ of priviledge of Parliament the Sheriff let him go at large for the King and the Realm hath an interest in the body of every Subject and the Common-wealth shall be preferred yet the party of the Parliament may be taken in execution again after the Plaintiff shall not be prejudiced in his execution by the act of Law which doth no man wrong neither is the Sheriff chargeable because his Office consists chiefly in the execution and service of writs and is sworn to do it Dyer 60. Lex plus respicit acta sine verbis quam verba sine actis Coke l. 3. f. 26. The Law respecteth more acts without words then words without acts As at the Common Law if lands be given to Baron and Feme in taile or in fee and the Baron dieth there the Feme cannot devest the Frank-Tenement out of her by any verball waiver or disagreement in pais as if before any entry made by her she saith that she waiveth and altogether disagreeth to the said state and that she never will take or accept of it yet the Frank-tenement remaineth in her and she may enter when she pleaseth and waive it in Court of Record for the Law more respecteth Acts without words then words without Acts and therefore if she entreth and taketh the profits although she say nothing it is a good agreement in Law And so it is adjudged in Mich. 34 E. 1. Avowry 232. That if a man take a distress for one thing yet when he cometh in Court of Record he may make an Avowry for what thing he pleaseth a multo fortiori when a Frank-tenement is vested in him it cannot be devested by nude words in pais and with it accordeth 17 E 3. 6. 17. Where the Baron alieneth his lands and retaketh the estate to him and his wife in taile the Baron dieth the Lord of whom the land was holden by Knights-service supposing that the Baron died sole
lands of the Grantor H. 13 E. 4. f. 6. So if the Title appeareth to the King upon Plea of other parties the Court of Office shall adjudge it for the King though he be not party to the Issue Ployd f. 243. b. vide ibidem plura And as the Common Law cannot bind the King no more can private Customes and therefore the custome of that if one pawn Goods that he that hath the pawn shall hold them whose soever they be untill the mony for which they were pawned be paid unto him shall not bind the King where his goods were pawned by a stranger So sale of goods made by a stranger â—n Market-overt shall not alter the property nor bind him M. 3. H. 6. 28. And if a man have wrack of the Sea if the Goods of the King be wracked he shall gain no property by it against the King And so it is of Prescription to have goods waved or estrayed M. 35 H. 6. 27. Ployd ibidem vide plura Nullum tempus occurrit regi Ployd f. 243. No Prescription of time runs against the King As if right of entry descend to the King and the Disseisor dieth seised it shall not take away the entry of the King M. 35. H. 6. 27. So if a Villain alien his land the Lord may enter when he pleaseth Coke com f. 41. b. If Tenant for life or Tenant in Dower grant over his or her estate and the Grantee dieth there shall be an Occupant but against the King there shall be no Occupant because nullum tempus occurrit regi Coke l. 6 f. 29. b. At the Common Law if any one had usurped upon the King and his Presentee had been admitted instituted and inducted for without Induction the Church is not full against the King yet the King may have a Quare Impedit and by it he shall remove the Incumbent for no act of the Bishop or any other can bar the King of his right nullum tempus c. vide ibidem plura Ployd 243. a. Coke l. 7. f. 28. If Title to present by Lapse be devolved to the Queen and the Patron presenteth a Clark who is admitted instituted and inducted and dieth the King hath lost his Title to present by Lapse for the King had but unam unicam presentationem hac vice which cannot be extended to the second avoidance and the statute de prerogativa regis quod nullum tempus occurrie regi is to be understood when the King hath a certain permanent interest and not when he hath an interest specially limited vide ibidem plura in Baskerviles case All which proceed from the Prerogative the Common Law giveth the Prince which is so large Nom. f. 85. Davis in his Preface as Sir Henry Finch saith that you shall find that to be Law almost in every case of the King that is Law in no case of the Subject And therefore Sir John Davis confidently averreth that the Common Law doth excell all other Lawes in upholding a free Monarchy which is the most excellent form of Government exalting the Prerogative Royall and being tender and watchfull to preserve it And yet maintaining all the ingenuous libertie of the Subject Davis ibidem But though the Common Law allow so many Prerogatives to the King yet shall he not hurt others by them As if a Bridge be repairable by the Subject and is in decay the pardon of the King shall not excuse him who ought to do it because others to wit the Subjects of the Realm have an interest in it So if one have Jewels in pawn for ten pounds and he that putteth them to pawn is attainted the King shall not have the Jewels unless he pay ten pounds for his Prerogative will not prejudice another Ployd f. 487. a. b. So the Earle of Kent had the return of certain Cattell in Replevin in 13 R. 2. and the Proprietor of the Cattell was attainted There it is holden that the Earle of Kent shall retaine the Cattell against the King untill he is satisfied for the thing and the Prerogative of the King will not discharge them of the return because the Prerogative will not give prejudice to another vide ibidem plura in Nichols case Rex est caput salus reipublicae a capite bona valetudo transit in omnes Coke l. 4. f. 124. b. The King is the head and safety of the Common-weale and as from the head health is conveyed to the body so from the King safety is conveyed to the Common-weale which is the body of the Kingdome for from him Justice is distilled to all by which all men are preserved in peace and safety as Ployd f. 242. b. All justice tranquility and repose is derived from him as the Fountain of it and therefore by Bracton he is called Author juris L. 3. c. 9. the Author of right by whom right is separated from injury equity from iniquity that all subject to him may live honestly that not one should hurt another and that to every one what is his be by a right contribution restored And by Homer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Gods Schollars and by a more divine Poet Gods themselves especially because they sit on Gods own Seat when they minister justice to the people Dixi quod dii estis and that the Rules of Justice be their principall Lesson Which like the Sun in the Firmament to which Justice is rightly resembled he is to communicate to all the Creatures of his Common-weale And as the King is the Sun and Fountain of Justice so are the Judges and Professors of the Law but Conduit Pipes to convey the streames of his Justice throughout all the Kingdome L. 4 Ep ad l. A. Chron. 19.6 7. Whereupon Sir Edward Coke hath this observation from the divine Text videte Judices Take heed you Judges what yee do for yee judge not for man but for the Lord who is with you in the Judgment wherefore let the fear of the Lord be upon you take heed and do it for there is no iniquity with the Lord our God nor respect of persons nor taking gifts And so saith he must every Judge be just without respect to give every man his own Protectio trahit subjectionem subjectio protectionem Coke l. 7. f. 5. Calv. case Protection draweth subjection and subjection protection Legiance is the mutuall Bond and Obligation between the King and his Subjects whereby Subjects are called his leige Subjects because they are bound to obey and serve him and he is called their leige Lord because he shall maintain and defend them And as there ought to be a mutuall connexion of dominion and fidelity between the Lord and Tenant ita quod quantum debet domino ex homagio tantum illi debet dominus ex dominio as Glanvil saith so that how much the Tenant oweth the Lord by homage and service so much doth the Lord owe the Tenant by his power and