dieth she had but a seizin in Law and yet he shall be tenant by the courtesie because he could by no industry attain to any other seizin Idem non potest esse agens patiens 14 H. 8.31 13 H. 8 32. 8 H. 6.29 9 L. 4.32 Dye 188. And therefore a man cannot present himself to a Benefice No man can summon himself And therefore if a Sheriff suffer a common recovery it is error because he cannot summon himself Impersonalitas non concludit nec ligat Coke Lit. 352. b. And therefore every Estoppell ought to be a precise affirmation Imperitia maxima est maechanicorum poena 7 E. 3.65 b. Coke l. 11.57 a. Therfore if he that taketh upon him to work be unskilful and ignorant it is sufficient punishment for him for if any take upon him to work and doth it amiss an action of the case lyeth against him Inclusio unius est exclusio alterius Lit. Com. 210. a Coke l. 11.50 A morgage with the money to be paid to the Morgagee and his heirs Ployden 106. it shall not be paid to his Executors Infinitum in jure repro batur Coke l. 6.45 l. 7.456 l. 8.16 b. 3 H. 4.17.11 H. 4.9.9 E. 4.50 51. As if a man have a debt by a simple contract and taketh an obligation for the same debt or any part of it the contract is determined So of a Judgement upon an obligation In fictione legis semper est aequitas Litt. Com 150. a. Coke l. 11.46 Liford's case As if one seized in Fee take Wife and make a Feoffment in Fee the Feoffee grants a Rent-charge of 10 l. to the Feoffer and his Wife and the heirs of the Husband the Husband dieth the Wife recovereth the moity for her Dower by the Custome the Rent shall be apportioned and she may distrain for five pound which is the moity for albeit the Dower by fiction of Law be above the Rent yet when she recovereth Dower she shall not have the entire Rent but of the residue for fiction of Law shall never work a wrong to a third person In aequali jure melior est conditio possidentis 9 H. 5.15 Coke l. 4.90 a. l. 2.68 Perk. fol. 6. If a man purchase severall Lands at one time which are holden of severall Lords by Knights service and dieth the Lord who first seizeth the Ward shall have him Injuria illata in corpus non potest remitti I itt Com. 1 27. a. 1 61. b. Vita membra sunt in manu regis 19 Ed. 1. rotul 36 And therefore if a Lord Mayheme his villain the King shall punish him for mayming his Subjects by Fine Ransome and imprisonment In ambiguis casibus semper praesumitur pro rege 22. Ass pl. 19. Stamf. fol 10. And the reason that Treasure Trove belongs to the King is Quia dominus rei non apparet ideo cujus sit incertum est and therefore presumed it is the Kings In disjuctivis sufficit alterum esse verum Coke l. 10.59 a. Bishop of Sarum's case Whereas the Avowant did avow that the Office supravisoris omnium maneriorum suorum to such Person or Persons as it pleased the Bishop and the Defendant pleaded in the negative that the Office had not been but for the life of one that exception was not allowed because he did not say that the said Office had been granted to divers but only to such person or persons and in disjunctives it is sufficient that one of them be true In jure non remota sed proxima causa spectatur 2 H. 4.3 26 H. 8.2 If a person make a Lease and be deprived or resigneth the Successours shall avoid the Lease for the Law regardeth not the cause of Deprivation or Resignation which is the Act of the party but the act of the Ordinary in the admission of the new Incumbent In maleficiis plerumque spectatur exitus 1 H. 3.144 Coke l. 2.84 non voluntas If I hurt another only with an intention to beat him and he dieth it is Felony So the ancient Law is altered wherein it was a Rule of Law In maleficiis spectatur voluntas non exitus as Bracton hath it vid. 1. E. 3. In omnibus fere minori aetati succurritur In a cessavit against an infant who hath the Tenancy by descent he shall have his age though it be upon his own Cesser because he cannot tell what arrearages to tender before the Judgement Impossibile est unum corpus in duobus locis esse simul Pop. Rep. 58. As if a man make a lease of two Barns rendring Rent and for default of payment a re-entry If the Tenant be at one of the Barns to pay the Rent and the Lessor at the other to demand the Rent and there is no body 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 Barn for it is not possible for him to be in two places together In praesentia majoris Ployd 498. a. cessat potentia minoris Appropriations made by the Pope Patron and King were good before Stat. 25. H. 8. without the Bishop because in the power of the greater the lesser ceaseth the Pope being supreme Ordinary In quo quis deliquit Coke Litt. 233. b. Groke Rep. fol. 183. Litt. 233. b. in eo de jure puniendus est If the Keeper of the Park pull down the Lodge or any House within the Park for putting of Hay into it for feeding of the Deer or such like it is a Forfeiture and the reason why the Office is forfeited is that he may be punished in that wherein he offended In omnibus obligationibus quibns dies non ponitur 20 E. 4.8 21 E. 4.8 praesenti die debetur Et nulla temporis d signatio praesens denotat When one is bound in Twenty Pounds to pay Ten Pound and no day of payment is limited the lesser sum is due presently to be rendred Judicis est judicare secundum allegata probata Dy. fol. 12. pl. 50. Ployd 83.6 7. H. 4.31 In a Formedon if the demandant count upon a Foeffment in Fee and not in Taile if the Tenant demurre upon it the Court cannot maintain the Declaration to be true because the Judge is to judge according to what is alledged Judicium pro veritate accipitur And therefore common recoveries suffered by the Tenant in Fee of the Lands of his Lessee for Life could not bee avoided or satisfied till the Stat. 14. Eliz. c. 8. And in Attaint the first Judgment is so favoured that the Plaintiffe shall have no other evidence but what he had at the first Triall but the Juty as many as they will to confirm the first Verdict Judicium à non suo judice datum Coke l. 10.76 b. nullius est momenti As if the Sheriff who is prohibited by the Law to
life by Dedi Concessi this shall inure as a confimation In one thing all things pursuant to be included 2 R. 2. Bar. 309. Upon a Grant of Trees the Grantee may come upon the Land to cut them down and with his carriage carry them thorow the Land 14 H. 8.1 10 E. 3.17 And the Vendee of all ones fishes in his pond may justifie the comming upon the banks to fish but not the digging of a trench to let out the water to take the fish for he might take them by Nets and other devices But if there were no other means to take them he might dig a trench Strongest against him that doth them 2 3. P. M. 140. b. 161. b. Two Tenants in common grant a Rent of 20 s. the Grantee shall have forty shillings But if they reserve twenty shillings upon a Lease they shall have onely one twenty shillings And therefore A man shall not qualifie his own act As 21 H. 7.23 b. if the Obligee releaseth his debt till Michaelmas the debt is gone for ever So a reversion of three acres of land is granted 18 E. 3.53 17 Eliz. Dy. 339. the tenant atturns for one it is a good atturnment for all The construction which otherwise Law would make is altered by the parties Special agreement Lessee for years is excused for waste 40 E. 3.5 Peck 55.56 if the houses be blown down by sudden storm or tempests But in that case if he covenant to keep reparations an action of covenant lies against him Speciall words As a Lease reserving a Rent 27 H. 8.19 30 H. 8. Dy. 42. b. the heir of the Lessor after his death shall have the Rent otherwise if the Lease be reserving to the Lessor Surplusage of words An information upon a Statute made such a day 6 E. 6.84 9 E. 4.28 h. and the day is mistaken is nought though he needed not to have recited the day 9 El. Dy. 255. b. A fained construction which we call a fiction in Law is when in a similitudinary sort the Law construeth a thing otherwise than it is in truth and is of the person thing action and the circumstances thereof time and place Of the person Things done by another are as if they wert done by one's selfe 27. H. 8.24 A promise to one's wife in consideration of a thing to be performed by the husband if the husband upon his comming home agree and perform the consideration he may plead this promise as made to himself So if my servant sell my goods and I agree I shall have an action of debt supposing be bought of me Of the thing we have these two Rules A thing that cometh in lieu of another 18 E. 3. rec in val 26.48 E. 3 11.6 H. 4.1 to be as if it were the same One shall recover in value against the heir upon the Ancestors Warranty lands which the heir took in exchange for lands descended A thing to be all one with that whereunto it doth amount The Maxime of a Bastard eigne is that the mulier puisne must make an entry upon him or else he gaineth the right yet a continual claim made by the mulier puisue 14 H. 4.9 14 H. 8.13 5 H. 7.1 destroyeth his right for it amounteth to an Entry So a Lease for years and a Release amount to a Feoffment And therefore A thing that should not be done to be as if it were not done 20 El. Dyer 362.18 El. Dyer 362. A man makes a Lease for years of a house with certain implements reserving a Rent The Executors after the Testators death receive the Rent yet it is no assetts in their hands for the whole Rent belongeth to the Heir So of a thing done in a time that it should not A man seized in fee le ts for ten years 1 E. b. Br. 18. and after selleth the land and taketh it back to him and his wife and then the husband and wife let it for 20 years reserving a Rent The husband dieth the wife accepts this rent during the first ten yeares By this the second Lease is not affirmed 21 El. 563. for the acceptance of a Rent before the Lease beginneth and so before any Rent be due is no acceptance at all To the circumstance of Time these two Rules pertain Priority of time is imagined in things Done together One deviseth a term for years to his son 21 El. 540. and that the wife shall have it during the son's minority This is first a Devise to his wife and after to the son when he cometh of full age Happening in an instant A Mesualty descends to the Tenant of the Land 11 H. 7.12 7 H. 46. 9 E. 4.21 Though the Mesualty be at the same time and instant extinct yet the Tenant shall pay relief if he be of full age or be in Ward if he be within age viz. where it is holden by Knights service Things relating to a time long before be Litt. 92.36 H. 6.7 as if they were done immediately from that time Where the wife is endowed by the heir of the husband's lands she shall be said to be in immediately from the husband And therefore if the husband were a Disseizor and the heir in by discent yet the Disseizee may enter upon the wife These Rules of common reason do many times cross and encounter one aenother which is the greatest difficulty that is found in the arguing of Cases But to help this the generall ground is according to the former Rule that Those prevail Litt. 110. b. 140. b. 32 H. 8. that carry the more excellent and perfect reason with them Tenant for life makes a Lease for life Br. gar 18.28 E. 3.20 b. Br. gar 17.35 H. 6.3 9 El. Dy. 264. b. 11 H. 7.9 Perk. 41.13 H. 8.15.7 H. â— 9 without naming whose life this shall be intended for his own life Rule 74. for else it were a wrong But if Tenant in tail make such a Lease for life this is a discontinuance and for life of the Grantee Rule 86. for it is strongest against the Grantor and most beneficiall for the Grantee FINIS
Oportet ut res ceria deducatur in judicium Playter brought an action of Trespasse against one W. Wuare clausum suum fregit pisces suos cepit without shewing the number or nature of the fishes and it was resolved that the Count should have comprehended the fishes in certain that the Defendant might have a certain answer and upon which a certain Judgement might be given P. Pater est quem nuprie demonstrant Litt. Com. 123. a. And therefore if a Villain have a Bastard by a woman and marrieth her the Bistard is no Villain because the Villain cannot be said to be his father he being a Bastard Pendente lite nihil innovetur At the Common Law Litt. Com. 344. b. if hanging the Quare impedit against the Ordinary for refusing of his Clerk and before the Church were full the Patron brought a Quareimpedis against the Bishop and hanging the Suit the Bishop admit and institute a Clerk at the presentation of another In this case if Judgement be given for the Patron against the Bishop the Patron shall have a Writ to the Bishop to remove the Incumbent that came in pendente lite by usurpation But since Westm 2. among other things it is enquired Ex officie if the Church be full and of whose presentation Perspicue vera non sunt probanda The Lord Cook Litt. Com. â— 16. b. in his Commentary upon Littleton observes that Mr. Littleton never citeth any Authority through his whole Book but when the case is rare or may seem doubtfull which appeareth in this that he putteth no case but hath warrant of good authority in Law The like of Justice Fitzherbert in his Natura Brevium that he never citeth authority but when the case is rare or doubtful Plus precat author 13 H. 7.10 Stamf. l. 1. c. 45.21 E. 4.71 quam actor If one be present at the death of a man and incite another to strike and kill him by this he is principal as well as he that killed him Litt. Com. 14.6 Possessio fratris de foede simplici facit sororem esse haeredem A man seized of lands in Fee-simple hath issue a son and a daughter by one venter and a son by another venter and dieth and the eldest son enters and dies without issue the daughter shall have the land and not the youngestion The like of an Use Ib. 10. b. Propinquior exeludit propinquum propinquus remotum remotus remotiorem And therefore the Fathers brother and his posterity shall inherit before the grandfathers brother and his posterity Proximus sum egomet mihi 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 Q. Quando lex aliquid concedit concedere videtur id Litt. Com. 55. a. 153. a. Coke Rep. Lyford's case sine quo res esse non potest If Lessee at will soweth the land and the Lessor after it is sown and before the corn is ripe put him out yet the Lessee shall have the corn and shall have free entry egresse and regresse to cut and carry away the corn Quando aliquid fieri prohibetur ex directo Litt. Com. p. 23. b. prehibetur per obliquum A Feosment upon condition that the Feoffee shall not alien to such a one naming his name is good And in this case if the Feoffee infeoff J. N. of intent and purpose that he shall infeoffe J. S. some hold this a breach of the condition Quando jus Domini Regis subditi concurrunt Litt. Com. 77. a. jus Regis praeferri debet If a man hold lands of the King by knight-Knight-service in Capite and other lands of other Lords and dieth his Heir within age the King shall have the Wardship of all the lands by his prerogative Quaelibet haereditas naturaliter ad haeredes haereditabiliter descendit Litt. Com. 11. a. nunquam naturaliter ascendit nisi a latere If there be father uncle and sonne and the son purchase land in fee-simple and die without issue living his father his uncle shall have the Land as heir to the son Quae in partes dividi nequeunt 14 E. 3. Fitz. 1. Kitchin fol. 134. a. solida a singulis praestentur If my Tenant that holdeth of me by a Harriot alien part of the land to another every one of them shall pay Harriot because it is an entire thing Quaelibet concessio fortissime contra donatorem interpretauda Litt. Com. 42. a. If Tenant in Fee make a lease for life without mentioning for whose life it shall be taken for the life of the Lessee and shall be taken more strongly against the Lessor Qui non habet in aere Hobart's Rep. fol. 133. luat in corpore And therefore the Law hath provided several executions for the executing of the Law and he that hath not to pay of his goods c. must suffer in his body by imprisonment Qui ex damnato etitu nascuntur Litt. Com. 3. b. 78. a. 123. a. inter liberos non computentur A man makes a lease to B. the remainder to the eldest issue male of B. and the heirs males of his body B. hath issue a bastard son he shall not take the remainder because in Law he is not his issue Qui haeret in litera haeret in cortice The statute of Glouc. c. 5. which giveth the action of waste against the Lessee for life or years which lay not against them at Common Law speaketh of one that holdeth for term of years in the plurall number and yet though it be a penall Law whereby treble dammages and the place wasted shall be recovered yet tenant for half a year being within the same mischief shall be within the same remedy though out of the letter of the Law Qui ad mit medium dirimit finem Litt. Com. 161. a. 26 Ass 17.3 E. 4.2 And Qui obstruit aditum destruit commodum And therefore if a man be disturbed to enter and manute his land this is a disseizin of the land it self Qui peccat ebrius Litt. Com. 247. a. luat sobrius A drunkard who is voluntarius daemon hath no priviledge thereby but what hurt or ill soever he doth his drunkennesse doth aggravate it Qui per alium facit Litt. Com. 258. a. per seipsum facere videtur If the master command the servant to go to the Land and make claim there to avoid the discent if the servant doth all that which is commanded and which his Master ought to do there it is as sufficient as if his Master did it himself Qui semel Actionem renuntiavit Litt. Com. Coke l. 8. f. 58. Beecher's case amplius repetere non potest A retraxit is a barre of all actions of like or inferiour nature Qui sentit commodum Coke l. 5.99 Rook's case c. l. 5.24 Dean and Chapter
and against reason that a man shall be Tenant of an estate of inheritance to another and the Lord should not have any manner of service for if he does not fealty hee shall not do any manner of services to his Lord Litt. Com. 188. a Ployd 419. Bracebridge's case Nihil de re accrescit ei qui nihil in re quando jus accresceret habet If two joynt Tenants be of a Rent and one of them disseize the Tenant of the Land this is a severance of the Joynture for a time for the moity of the Rent is suspended by unity of possession and therefore cannot stand in Joynture with the other moiety in possession And here if one of them die there shall be no survi vour For there shall never be any survivour unlesse the thing be in joynture at the instant of the death of him that first dieth Non refert an quis assensum praebeat verbis au rebus factis 44 E. 3. fines 37.37 H. 6.17 7. E. 3.50 If the Baron accept the grant of a Reversion that amounteth to an Attornment 44. E. 3.37 Hee which hath interesse termini cannot by express words surrender it but the acceptance of a new Lease shall drown it Non valet impedimentum quod de jure non sortitur effectum Coke l. 4.31 Frenches ease Litt. 361. h. Quod contralegem sit pro infecto habotur If Copy-hold Lands be forfeited or escheat and the Lord Lease them for years or life or any other estate by Deed or without Deed this Land can never again be granted by Copy for the Custom is destroyed For during these Estates the Land was not demisable by Copy But if the interruption be tortious as by Disseizin and Discent false Verdict or erroneous Judgement there it may be granted again by Copy Non afficit conatus nisi Coke l. 6.4 Mildmay's case sequatur effectus A gift in tail upon condition that his Estate shall cease if he go about to alien c. This condition is void for endeavour of a breach is not a breach Non est baeres viventis Litt. Com. 22. b. 217. a. If a man by Deed make a Lease for years the remainder to the right heirs of J. S. and the Lessor make livery to the Lessee secundum formam Chartae this Livery is void because during the life of J. S. his right heir cannot take and in that case the Free-hold shall not remain in the Lessor and expect the death of J. S. during the term For albeit J. S. dye during the term yet the remainder is void because a Livery of seizin cannot expect Non valet pactum de re meanon alienanda Litt. Com. 223. a. As a Feofment upon condition that the Feoffee shall not alien the condition is void Nullum iniquum in jure praesumendum Coke l. 4. fol. 70. Hynde's case Records are so high and sacred that they import in themselves inviolable verity which if any gainsay they shall be tryed only by themselves and not by the Country And if averment against a Record should be permitted then the effect and validity of the Record should be tryed by the Country which is against the Rule of Law Nullum iniquum est in jure praesumendum Nullum tempus occurrit Regi Litt. Com. 118. a. 90. b. 119. a. Ployd 156.159 9 H. 6.21.12 H. 7.12 For if the villain of the King purchase any lands and alien before the King upon and office found for him doth enter yet the King after Office found shall have the Land Nullum semile est idem Litt. Com. 43. b. Tenant by Statute Merchant Staple or Elegit are said to hold land ut liberum tenementum untill their debt be paid Yet in truth they have not Freehold but a Chattle which shall go to the Executors and the Executors if ousted shall have an Assize But is similitudinaric because they shall by the Statutes have an Assize as a Tenant of the Freehold shall have and in that respect hath similitude of a Freehold but no like is the same thing Nullus commodum capere potest de injuria sua propria Litt. Com. 148. b. If B. make a Lease of one Acre for life to A. and A. is seized of another Acre in Fee and A. granteth a rent-charge to B. out of both Acres and doth waste in that Acre which he holdeth for life B. recovereth in waste The whole Rent is not extinct but shall be apportioned and yet B. claimeth one Acre under A So if A. had aliened in Fee and B. had entred for the forfeiture O. Oninis privatio praesupponit habitum A person maketh the Lease for years reserving a Rent and dieth the Lease is determined by his death Also in a reall action a Parson Vicar Archdeacon Prebend shall have did of the Patron and Ordinary as Tenant for life shall have So that to many purposes a person hath in effect but an estate for life and to many a qualified Fee simple But the entire Fee and Right is not in him and therefore he cannot discontinue the Fee simple that he hath not nor ever had for Omnis privatio praesupponit habitum Omnia quae movent ad mortem sunt deodanda Coke l. 5.190 Foxley's case Stamf. l. 1. c. 12. fol. 20 If a man ride in a Chariot and the Chariot fall upon him and kill him the Horses as well as the Chariot shall be a Deodand Omne testamentum morte consummatum est Coke l. 4. fol. 60. Forse and Hemblings case Lit. 112. b. The making of a Will is but an inception thereof and it doth not take any effect till the death of the Devisor Omne majus continet in se minus Coke l. 5. 114. Wade's case If a man be bound in a Bond for a sum of money to be paid at a certain day and at the day the Obligee tender more than the summe yet it is a good tender for the reason above-said Litt. Com. 43. b. Omne majus trahit ad se minus The King cannot be said to be a Minor for when the Royall Body Politick of the King doth meet with the naturall capacity in one person the whole Body shall have the quality of the Body politick which is the greater and more worthy and wherein is no minority Omnia quae sunt uxoris sunt ipsius viri Litt. Com. 112. a. b. And therefore she is disabled to contract with any without the consent of the husband neither hath she power to dispose of any personal estate in her own right Omnis ratihabitio retrotrahitur Litt. Com. 180. b. mandato aequiparatur As if A. disseize one to the use of B. who knoweth not of it and B. assent to it in this case till the agreement A. was Tenant to the Land and after agreement B. is Tenant of the Land but both be disseizors Coke l. 5. fol. 321. Playters case