entred and after that a concord is made or a fine levied this is void in respect the verity appeareth on record for where the verity is apparent in the record the adverse party shall not be estopped to take advantage of the truth for he cannot be estopped to alleage the truth an impropriation is made after the death of the Incumbent to a Bishop and his successors the Bishop by indenture demiseth the parsonage for forty yeares to begin after the death of the incumbent the Deane and Chapter confirmeth it the incumbent dieth this demise shall not conclude because it appeareth that he had nothing in the appropriation till after the death of the incumbent ibid. Coke l. 10 f. 62. a. If a Bishop maketh a Lease of Lands for four lives and one of them dieth in his life so as now there be but three and after he dieth yet it shall not bind the successor for those things which have a bad beginning can scarcely be brought to a good end Ployd f. 344. a. If a Feme covert giveth Lands devisable by the common law by will and publish it and after the Baron dieth after the wife dieth the devise is void because the foundation is founded on the first parts to wit the making and publiâ—hing which are void though at the time of her death she was discovert but the death without a good beginning giveth no effect so if an infant maketh a Will and publish it and after is at full age it is not of effect causa qua supra ibidem Ployd f. 344. a. If one disseise one of two acres in Dale and the disseisee releaseth to the disseisor all his right he haâ—h in all the lands in Dale and delivereth the release as an escrowl to be delivered to the disseisor as his deed the last day of May before that time the disseisor diseiseth him of another acre in D. and after the deed is delivered to the disseisor the last day of May the right which hee hath in the third acre shall not pass for the beginning and the intent is to be respected in all acts So if one have a reversion in fee of two acres which I. S. holdeth for life and granteth to another the reversion of all the acres that I. S. holdeth for life and then the grantor purchaseth the reversion of another acre I. S. holdeth for life and after I. S. attorneth to the grantee for all the three acres the third acre shall not pass for the reason abovesaid If a man devise the manner of Dale or white acre Excepton and have nothing in it at the time of making the Will and after purchaseth it there it shall pass to the devisee for it shall be taken that his intent was to purchase it Ployd f. 344. a. If I let B. acre by deed indented in which I have nothing and I purchase it afterwardes it is a good Lease 8. f. 3. 24. F. n. b. f. 73. c. If a man be distrained in any liberty and he sue a replevin there by plaint or by Writ and after hanging the plaint in the Liberty he be distrained again for the same cause by the same person who distrained he shall not have a Writ of recaption because the plaint is not holden before the Sheriff c. nor before the Justices but if the plaint bee removed by pone and out of the Liberty before the Justices there the party shall have a Writ of recaption as well for the reprisall before the Writ as for the reprisall after whereas otherwise before the removal a recaption did not lie upon the reprisall of a distress in case a replevin was sued in a Mannor or Liberty and not in the County Coke l. 8. f. 78. a. Tenant in taile is the remainder in taile of the grant of the King if tenant in taile acknowledgeth a fine or suffereth a common recovery it shall not barre the issues because the reversion was in the King but if after the reversion be granted and put out of the crowne the fine shall bar the issues Coke com f. 14. a. Quod prius est dignius est qui pâ—ior est tempore potior est jure Eract l. 2. c. 10. and therefore among the males the eldest brother and his posterity descending from him shall inherit before any yonger brother because Littleton saith he is most worthy of blood and Bracton Siquis plures filios habuerit jus proprietatis primo descendit ad primogenitum eo quod inventus est primo in rerum natura whosoever hath many sons the right of propriety shall descend to the first borne in that hee first is found in the nature of things and in King Alfreds time Knights fees descended to the eldest son Glanvill l. 7. c. 3. vide ibidem plura Coke l. 4. Druties case f. 90. a. Though a Countess may have as many â—haplaines as she will by the Common Law yet by the statute can shee have but two capable of dispensation and reason requireth that he that hath served longest should be first preferred for he that is the former in time is the more worthy in Law Ployd f. 259. a. D. Hales case Baron and Feme are joyntenants of a Lease for two yeares there are no moieties between them but every of them hath the whole and if the husband charge the Land shee after her death shall avoid it 7. H. 6. f. 1. for she is remitted to the terme and is in upon a title parameunt the grant So if a man alien trees growing upon the ground entailed or in land which he hath in right of his wife and dieth before they are cut downe the alienee shall not fell them because the issue in taile is in upon a title paramount the alienâ—tion P. 18. E. 4. f. 5. 14. H. 4. f. 32. The Lord may take his Ward which is an apprentice out of the possession of his master because his title to his body accrueth in respect of his signiory which is more ancient than his apprentiship Ployd ibidem When one hath a presentment to a Church two turnes and another a third turne if he that hath the third turne bring a â—uare impedit he shall not begin with his owne turne first but with the other two turnes Vnumquodque principior um est sibimetipsi fides cum ea negantibus non est disputandum quia ad principia non est ratio Fortescue de laudibus legum Angl. f. 11. Dyer 271. a. There are principles of being so all causes are the principles of their effects and there are principles of knowledge so a proposition by which as the more knowen another is conceived is a principle and of this principle it is said That every principle is of credit to it selfe and that we ought not to dispute against denyers of principles As arrearages of Rent-charge being due to a woman sole and after shee taketh an husband and then another day of payment
to deliver the Evidences of the Land it shall be understood of the first Iohanes S. the vendor who by common intendment hath the Evidences so a man granteth to one a pention that I. B. had donec sibi provisum fuerit de competenti beneficio this word sibi shall be referred to the grantee and not to I. B. so in a cui vita brought by a Feme the Writ is cui ipsa in vita contradicere non potest the word shall not be referred to the next antecedent ipsa but to the husband otherwise the sense should be imperfect Dyer Ibidem f. 15. b. So Dyer f. 46. b. I. G. was indited before the Coronor of the death of Emelin Gager his wife and the Inditement was that the said Emelin was in pace domini regis quousque ante dictus Iohanes Gager vir prefate Emelin Gager de Hambridge predicta in commitatu predicto Yeoman and the Inditement was held good and that there was no defect in the addition for the word Yeoman could not bee addition to the Feme though the next antecedent but must necessarily be referred to the husband according to the sense and meaning A Writ brought of rescuing goods and denying to pay towle contra pacem shall bee referred to the rescouse and not to the towle 30. E. 3. 15. because in it consisted the breach of the peace Coke l. 8. f. 119. Adam de Clidrow brought a precipe against Iohn de Clidrow and the Writ was quod juste c. reddat manerium de Wincomb duas carrucatas terre cum pertinentiis in Clidrow in this case the Village of Clidrow shall not relate to the Mannor because it wanteth not it for a Mannor may be demanded without mention made that it lyeth in any Village but cum pertinentiis though it come after the Village relateth to the Mannor because it wanteth it Quia verba posteriora propter certitudinem addita ad priora quae certitudine indigent sunt referenda 6. E. 3. 12. Impersonalitas non concludit nec ligat Cok. com 352. b impersonals doe not conclude or binde and therefore every estopple ought to bee a precise affirmation of that which maketh the estopple and not to be spoken impersonally as if it bee said ut dicitur because impersonality doth not conclude any man for impersonalitas dicitur quasi sine parsona ibidem Negatio destruit negationem ambo faciunt affirmationem Coke Com. f. 146. b. according to Grammaticall construction a double negative maketh an affirmative a distresse was pro infecto servicio the Defendant saith quod non fuit infectum and ruled as good as if he had said it was done but Grammaticall curiosity shall not prevaile in like cases to avoide a Grant as upon a Rent charge issuing out of Land the Proviso was quod non presens scriptum nec aliquid in eo specificatum non aliqualiter se extendat ad onerandam personam meam Nec non in Grammatical construction doth make an affirmation but the Law that principally respecteth the substance doth judge the Proviso to be a negative according to the intent of the parties so as the sense of those words according to the construction of the Law is provided that this present writing nor any thing therein specified shall any way extend to charge my person Coke Com. f. 146. a. b. so ibidem f. 223. b. If Lands bee given in taile sub conditione quod ipse nec heredes sui non alienarent that he nor his heires shall not alien in legall construction shall bee taken negatively notwithstanding the double negative In disjunctivis sufficit alterum esse verum Coke lib. 10. f. 59. a. The Bishop of Sarums case whereas the avowant did avow that the Office supervisoris omnium maneriorum suorum had been granted to such person or persons as it pleased the Bishop and the Defendant pleaded in the negative that the said office had not been granted but for the life of one that exception was not allowed because in that the advowant did not alledg that the said office had been granted to diverse but onely to such person or persons and in disjunctives it is sufficient that one of them be true ibidem So Coke Com. f. 225. a If the condition bee in the disjunctive it is sufficient to obey either of them according to the rule Si plures conditiones ascriptae fuâ—rint donationi divisim cuilibet vel alteri eorum satis est obtemperare in disjunctivis sufficit alterum esse verum If many coditions bee annexed to a guift severally or disjunctively it is sufficient to obey every one or any one in disjunctives it is sufficient if either of them be true Si plures conditiones ascriptae sunt donationi conjunctim omnibus est parendum ad veritatem copulatiâ—vam requiritur quod utraque pars sit vera Bracton lib. 2 f. 19 Coke com f. 225. a. If many conditions be joyntly annexed to a gift all of them must be obeyed and to a copulative truth it is required that every part be true in a condition consisting of diverse parts in the conjunctive both parts must bee performed as if a man give Lands in taile upon condition that if Tenant in Taile or his heires alien in fee or in taile c. and also if all the issues comming of tenant in taile bee dead without issue that then it shall bee lawfull for the Donor and his heires to enter if tenant in taile in this case or his heires make any discontinuance he in the reversion and his heires may enter after the estate taile is determined for want of issue for the reason abovesaid But if the condition or limitation bee both in the conjunctive and disjunctive what then as a Lease to the husband and wife for 21 yeares if the husband wife or any child betweene them shall so long live and the wife dieth without issue the Lease shall continue during the life of the husband for the disjunctive referreth to the whole and disjoyneth not onely the latter part as to the child but also to the Baron and feme And so it is that if an use be limitted to certaine persons until A. shall come from beyond the Seas and attain to his ful age or die if he doe come from beyond the Seas or attaine to his full age the use doth cease Coke ibidem f. 225. e. Grammatica falsa non vitiat instrumentum Reg. I.C. decius 3. f. 10. mala grammatica non vitiat cartam sensus abreviationis accipiendus est ut concessio non sit inanis Coke l. 9. f. 48. a. false latine doth not destroy a Deed or a Charter and the sense of dashes or abreviations is so to bee taken that the grant be not voide as if the King grant tat il mannur of C. and D. and in truth there is but one Mannor then those abreviations shall bee taken in the singular number totum illud
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
part which agreeth not with the whole Ployd f. 161. a. And therefore every part of a deed ought to be conferred with the other and one entire sense thereupon to be made as if I release all actions and stay there all actions are gone but if I say further which I have as Executor to I. S. there the generality is restrained So 17. E. 4. f. 22. The King granteth to Garter King of Heralds ten pounds for the terme of his life if he had stayed there he had had it absolutely for terme of his life but where he faith further by reason of his Office by it hee hath restrained the generality vide ibidem plura in Throgmortons case so as if he be removed from his Office he shall lose his annuity Parte quacumque sublata integrante sive necessaria tollitur totum the substantiall or necessary part of any thing being taken away the whole is destroyed Coke l. 3. f 41. in Ratcliffs case As none can be procreated but of the father and the mother and ought to have in him their two bloods which bloods commixed in him by lawfull marriage constitutes and makes him heire so none can be heire to any unlesse he hath in him both the bloods to whom he shall be made heire and therefore the heire of the halfe blood shall not inherit because hee wanteth one of the bloods which make him inheritable for the blood of the father and mother are but one blood inheritable and both are necessary to the procreation of an heire and therefore if there be Baron and Feme Donees in speciall taile and the Baron is attainted of treason and executed having issue and the Feme die the issue shall not have the Land because the father is attainted for he ought in his lineall conveyance to make himselfe heire as well of the part of his father as of the part of his mother Dier f. 332. b. And that bar and forfeiture is made by the Statute of 26. H. 8. c. 13. which provideth that every offender convict of high treason shal forfeit to the King c. All his Lands c. saving to every person all his right title interest c. so as the issues in taile are barred by that statute because the heire is disabled and cannot make himselfe heire in his lineall convâ—yance as well to the father as mother Coke l. 9 f. 140. a. upon which reason Britton saith that if one be attainted of felony by judgement the heires engendred after the attainder shall bee excluded of all manner of succession of inheritance as well of the part of the father as of the part of the mother because at the time of the generation of him the fathers blood was corrupted et ex leproso parente leprosus generatur filius Coke l. 3. f. 41. vide plura From the circumstances of time and place MOmentum instans est unum indivisibile in tempore quod non est tempus neque pars temporis ad quod tamen partes temporis copulantur Ployd 110. b. The distinction of a moment cannot be discerned or observed in the actions of men who cannot doe any thing without the space of time yet as Ployd f. 258. b. in Madam Hales case in things of instant there is a priority of time in the consideration of the Law as in a felon of himselfe the forfeiture shall have no relation but to the time of his death and the death precedeth the forfeiture and notwithstanding the forfeiture commeth at the same instant when he dieth yet in consideration of Law one shall bee said to precede the other though both shall be said to come at an instant for every instant hath the end of one time and the commencement of another and so in the death of a Felon of himselfe the death and the forfeiture commeth together and at the same time and yet there is priority to wit the end of his life is the beginning of the forfeiture and yet the forfeiture is so neere the death that there is no meane time betweene them but are conjoyned for a moment or instant is one indivisible thing in time which is not time nor part of time to which notwithstanding the parts of time are conjoyned vide ibidem plura and in the case between Fulmasten and Steward fo 110. So Fulbeck in his Pandects L. 1. f. 9. b. The existence of a moment cannot possibly be discerned and therefore is not so much as the twinckling of an eye yet the Law doth operate without compass of time in an instant but man never for every act of man must have space longer or shorter but the nature of such instants as the law doth imagine is such and so suddaine that as the Civilians omnom respuunt moâ—am and the reason is because in the operation of the law that which is imagined to be done is dicto citius presently done and whereas the act of man is mixed with the act of Law though in regard of the same thing the act of Law is momentary yet the act of man must needs beare some delay as those things by the civill law which are taken from the enemies doe incontinently become his who doth seise and take them the law doth give them unto him presently yet there must be a time to take them that the Law may give them So if a Lease be made to A. for the life of B. and A. dyeth C. entreth into the Land and enjoyeth it as occupant the Law because it will not have the freehold in suspence doth imagine that it was presently and immediately in him after the death of A. and that he entred presently but if we respect the entry as the Act of man we must needs conceive that he had some time to enter into the Land and by his entry which is an act of motion to gaine the free hold ibidem Quae incontinenti fiunt in esse videntur Coke l. 8. f. 77. a. Those things which are done in an instant seeme to be in esse or in being in Staffords case as a particular estate and the increase of a particular estate ought to take effect by the same deed or grant or â—y two deeds delivery at the same time which is all one in effect for those things which are done in an instant and at the same time seeme to be in being And the particular estate and the increase of the estate upon it is but one grant to take effect out of the same root and though that it vesteth at severall times yet when it vesteth it hath the vigor and force of the same grant 27. H. 6. f. 7. So l. 2. f. 71. a. A condition cannot precede an estate but ought to be in the said conveyance or comprised in another deed delivered at one and the same time as the books are agreed in 17. Ass 2. and 34. Assise for the above said reason vide ibidem S. Cromwels case But Coke com f. 236. putteth
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
that be dissolved the dower ceaseth where the husband and wife are divorced a vinculo matrimonij as causa precontractus causa metus causa impotentiae seu frigiditatis causa affinitatis causa consanguinitatis and William Chadweth was divorced for that he did carnally know the Daughter before the marriage of the mother All these are causes of divorce preceding the marriage and dissolve the dower Coke Com. f. 32. a. 235. a. Yet it is said that if the assignement of dower ad ostium ecclesiae be specified to wit that notwithstanding any divorce shall happen yet that shee shall hold it for life that this is good ibidem but divorce a mensa thoro doth not dissolve the matrimony nor bar the feme of her dower Coke l. 7. f. 43. b. As it was adjudged T. 2. Jac. 18. 5. C. 23. S so well and Wilby dower Coke com f. 33. b. Yet if the wife elope from her husband and leave him and goeth away with the adulterer shee shall lose her dower untill her husband willingly without coertion ecclesiasticall be reconciled unto her and permit her to cohabite with him according to the vulgar verses Sponte virum mulier fugiens adultera facta Dote sua careat nisi sponsi sponte retracta And this is true although shee remaineth not continually with the adulterer or if shee tarrieth with him against her will or he turne her away or co-habiteth with her husband by censure of the Church in all these cases shee loseth her Dower Coke ibidem 32. b. yet though shee be barred of her dower shee may have an appeale and the reason is because the Statute of W. 2. c. 34. barreth her of her dower but not of her appeale Coke com f. 33. b. And for the abovesaid reasons dower is one of the three things are principally favoured in our Law and the Law by that name doth give her many freedomes for the very name Dos doth give her a freedome as according to the custome of the Kingdome mulieres viduae debem esse quietae de tallagijs Regist 142. 143. and tenant in dower shall not be distrained for the debt due to the King by the husband in his life time for the Lands which shee holdeth in dower of which Ockam yeeldeth this reason Doti ejus parcatur quia praemium pudoris est let her dower be spared because it is a reward of her chastity Coke com f. 31. a. By the Statutes of 1. E. 5. c. 2. 5. E. 6. c. 31. A wife shall not lose any title of dower which to her was accrued by the attainder of her husband by misprision of treason or any manner of murder or felony whatsoever but if the husband be attainted of high treason or petit treason shee shall be barred of her dower at this day so long as the attainder standeth in force which is more favourable to the woman then the common Law was Coke com f. 392. b. vide ibidem plura And a woman shall be endowed of a seisin in Law as where Lands or Tenements descend to the husband before entry he hath but a seisin in Law and yet the wife shall be endowed albeit it be not reduced to an actuall possession for it lyeth not in the power of the wife to bring it to an actuall possession as the husband may doe of his wifes Land when he is to be tenant by courtesy Coke com f. 31. a. If a man taketh a wife of the age of seven yeares and alieneth his Land and after she attaineth to the age of nine yeares the husband dyeth the wife shall be endowed for albeit shee was not absolutely dowable at the time of her marriage yet was she conditionably dowable to wit if she attained to the age of nine yeares before the death of her husband ibidem f. 33. a. An husband seised in fee of Lands giveth it in exchange and taketh others in exchange so as he was seised of both the wife shall not be endowed of both but she may take her election to be endowed of which she will Coke ibidem 31. If the wife be of the age of nine yeares and her husband dyeth she shall be endowed though her husband be but four years old ibidem or of what age soever the husband be quia non obstabit mulieri petenti dotem minor aetus viri because the inferior and lesser age of the man shall hinder the woman from demanding her dower and that albeit consensus non concubitus facit matrimonium and that a woman cannot consent before twelve nor a man before fourteen yet this inchoate and imperfect marriage from the which either of the parties at the age of consent may disagree after the death of the husband shall give dower to the wife and is accounted in Law legitimum matrimonium quo ad dotem a lawfull marriage in respect of her dower Coke com f. 33. a. If the husband alien his land and then the wife is attainted of felony now is she disabled but if she be pardoned before the death of her husband shee shall be indowed ibidem Dos de dote peti non debet Coke com f. 32. Dower ought not to be demanded of Dower as if there be Grandfather Father and Son and the Grandfather is of three acres of Land in fee and taketh wife and dyeth this Land descendeth to the Father who dyeth the wife of the Grandfather is endowed of one acre and dyeth the wife of the Father shall onely be endowed of two acres for dower must not be demanded of dower but otherwise it had been if the father had come to the Land by Feoffment from the Grandfather or by guift in taile the wife of the Father after the decease of the Grandfathers wife should have been endowed of that part assigned to the Grandmother for that the seisin that descended after the decease of the Grandfather is avoided by the indowment of the Grandmother whose title was consummated by the death of the Grandfather Non debent mulieribus assignari castra in dotem quae fuerunt virorum suorum quae de guerra existant Coke com f. 31. a. Castles ought not to be assigned to women for their dower which appertained to their husbands and which are for war and therefore of a Castle which is maintained for the necessary defence of the Realme a woman shall not be indowed because it ought not to be divided and the publick shall be preferred before the private but of a Castle which is onely for the use and private habitation of the owner a woman shall be endowed and that in the 7 th of Magna charta nisi domas illa sit castrum is taken for a Castle of publick defence De nullo quod est sua natura in divisibile divisionem non patitur nullam partem habebit uxor pro dote sua sed satisfaciat ei ad valentiam Bracton Coke com f. 32. Albeit of many Inheritances which be
the obligee to sue the heire Executors or Administrators of the obligor and if the executors have assets in their hands yet the obligee may sue the heire if he will because he hath bound the heire as well as himselfe neither can the heire plead that there is assets in the hands of the executors day of the writ purchased as heretofore in some ancient bookes it hath beene done but he must pleade rien by descent 10. H. 7. f. 8. Ployd f. 440. Davis case For now the law is changed and it is accounted his owne debt and debt will lie against the heire of the heire to many generations as Dier affirmeth f. 868. albeit of this Mr. Ployden maketh a doubt but his plea that he had nothing at the day of the writ purchased nor ever after is good for if he before aliened the assets he is discharged of the debt Popham f. 151. But if the heire doth not confesse the Action and shew the certainty of the assets but pleadeth rien by descent is condemned by default of answer the Plaintiff shall have execution of his other Land or of his goods or of his body by capias ad satisfaciendum as he might have had for the debt of the heire himselfe if he had made the obligation vide 21. E. 3. f. 9. ibidem plura and Coke l. 3. Sir William Herberts case where the case is upon a Scire facias against the heire But otherwise if the executor in debt pleadeth rien entre mains c. and is found against him nothing shall bee put in execution but the goods of the dead because the debt is not the debt of the executor but of the testator and is charged in anothers right and hath the goods in anothers right whereas when the heire denieth assets c. and it is found that he hath assets the debt of his Ancestor is become his debt in respect of the assets which he hath in his owne right and so the property which he hath in his own right of the land maketh the debt his own proper debt and for that reason the writ shall be in the debet and detinet and the Plaintiff may have execution by elegit of the moiety of all his Lands as a fieri facias of his goods Ployd ibidem f. 441. But in Popham f. 151. it is said by Iones and Crew that a generall judgement shall be given against the heire if he doth plead falsly that he hath no assets and not upon a nihil dicit Haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeter quam d ebita regis tantum Flet a. l. 2. c 55. An heire is not bound in England to pay the debt of his Ancestor unlesse it be the debts of the King Coke com f. 386. a As if a man bind himselfe by warranty and bindeth not his heire they are not bound for he must say Ego haeâ—edes mei warrantiabimus I and my heires will warrant ibidem Coke com 144 b. If a rent charge be granted to one and his heires he shall not have a writ of Annuity against the heire of the grantor albeit he hath assets unlesse the grant be for him and his heires And the heire by the grant of an Annuity by the Ancestor shall not be bound unlesse hee have assets And it is a Maxime at the common law that the heire shall never be bound to any expresse warranty but where the Ancestor was bound by the same warranty for if the Ancestor be not bound it cannot descend upon the heire as if a man maketh a feoffement in fee and bindeth his heirs to warranty this is a void warranty because the Ancestor himselfe was not bound as also if a man bind his heirs to pay a sum of money this is void Coke com f. 386. a. Exception Customary inheritances shall not be assets to charge the heire in an Action of debt upon an obligation made by his Ancestors although he bind him and his heires And for the same reason issue in taile shall never avoid things done by his Ancestor but such things which are or may be to his disadvantage and not for the benefit of the issue as T 44. E. 5. f. 21. Where tenant in taile was upon a defeasible title and to have a release of right of him that had right he granted to him a Rent-charge of twenty pound and that the charge should be levied upon the issue in taile and because the rent was for the release of right and the issue had benefit by it it was adjudged that the issue shall not avoid the grant and 46. E. 3. f. 4. If Lands be given in taile so as the Donee may alien for the profit of his issue that is a good condition or power limited to him And so if tenant in taile suffer a common recovery in which he is vouched and hath recompence the issue shall be bound and so if he alien with warranty and leaveth assets to his issue the issue shall not avoid the warranty because it is not to his disadvantage Ployd f. 437. b. in Smiths case vide Semper praesumitur pro legitimatione purorum filiatio non potest probari Coke l. 5. f. 98. b. Burys case Legitimation of Children is allwayes presumed and begetting of Children cannot be proved Bury was divorced from his first wife a vinculâ— matrimonâ—j causa frigiditatis and as he lawfully might married a second wife and had issue by her and it was adjudged that the issue of the second wife was legitimate for notwithstanding his naturall imbecility deposed before the divorce it was said that a man might be habilis and inhabilis diversis temporibus and that though the second marriage was yet it remaineth a marriage untill it is dissolved and by consequence the issue which was had during the coverture if no divorce was had in the life of the parties is lawfull for lawfulnesse of Children is allwayes presumed and filiation cannot be proved Ibidem Coke Com. 126. a. A man leaveth his wife enseint with child issue shall not be taken that shee was not enseint by her husband for filiatio non potest probari but the issue must be whether shee were ensciut at the day of her death ibidem f. 244. If the husband be within the foure Seas that is within the jurisdiction of the King of England if the wife hath issue no proofe is admitted to prove the child a bastard for filiatio non potest probari unlesse the husband hath an apparent impossibility of procreation as if the husband be but eight years old or under the age of pro-creation such issue is a bastard albeit he be born within marriage The Law supposeth that to be true which is false because it may be true as a man marrying a woman that was with-child before marriage the Law supposeth the child to be the
if an Action of wast be brought by two joynt-tenants the release of one shall bar the other as it is holden 9. H. 5. f. 15. by the Court for in wast the personalty is the principall and though one joynt-tenant cannot prejudice the other in regard of the matter of inheritance or franke tenement yet in regard of the profits of the frank-tenement they may vide ib. plura If husband and wife purchase socage lands to them and their heires of their bodies and they having issue within fourteen yeares of age doe dy in this case if the grandmother of the part of the mother of the issue first seise the Ward she shall have the Wardship and not the grandfather of the part of the father of the issue 8. Eliz. 296. b. because they are in aequali jure and where the right is equall the condition of the possessor is the better To which obiter may be annexed the sage judgement of Augustus who after the civill wars being molested with the complaints of diverse who demanded many places of ambiguous right from the possessors because they severally were given by the Senate Pompey Caesar Lepidus or Augustus to the Souldiers gave sentence for the possessors Duo non possunt unam rem in solido possidere R g. I. C. Vlpiamus Coke com f. 368. a. Two cannot possess one and the same thing fully and wholy for dominion had its beginning from possession and as there cannot be two Lords and Masters of one and the same thing fully and wholly so cannot two fully and wholly possess one and the same thing As if A. of B. be seised of a Mese F. of G. that hath no right to enter into the same Mese claiming the said Mese to hold to him and his heires entreth into the said Mese but A. of B. is continually abiding in the same Mese In this case the possession of the frank-tenement shall alwaies be adjudged in A. of B. and not in F. of G. because where two be in one house or other tenements and the one claimeth by one title and the other by another title the law shall judge him in possession that right hath for two cannot possess one and the same thing fully and wholly But if a man hath issue two daughters Bastard eigne and mulier puisne and dieth seised and they both enter generally the sole possession shall not be adjudged onely in the puisne because they claime by one and the same title Coke ibidem Yet though the possession of one thing cannot be fully and wholly but in one yet the property may be in two as Ployd f. 5. 24. Manwood said it is not strange in our law that two should have a severall interest in one and the same terme and two properties in it for if lessee for yeares grant over his terme to another by deed indented rendting rent and that for default of payment that he shall enter and retaine till the grantee hath paid to him the rent if he doe enter for default of payment and retaine he hath one property and the grantee also hath another property for his interest is not gone but hath a property tel quel such as it is and may have all the property upon payment of the arreares So if one hath a terme for yeares and is bound in a recognisance or statute staple and execution for non pay-ment is sued against him and the terme is extended and a certaine annuall value delivered to the Connusee as it well may be for it may bee sold out-right or extended to an annuall value there the connusee hath one property for the payment of his debt and the lessee another property and upon the payment of the debt shall have the terme again A woman made a lease for yeares of mills in Kent with exception that she should have the profits and there was a great debate whether the exception were good or no because the profits of the mills was all the benefit and in effect the mills themselves but at the last the exception was judged good in law and that the woman should have the profits There if shee enter to have the profits she hath one property and the lessee another property and it is incertaine how many yeares the property of the woman will continue So if one Lease sheep for a time to manure his land or pawn his dog as the case was in 5. H. 7. The owner hath some property and he to whom the Sheep is leased or the dog pawned another Ployd ibid. Possessio fratris de feodo simplici facit sororem esse haeredem The possession of the brother of a fee simple maketh the sister to be heire Littleton Coke com f. 14. b. As if one hath issue a son and a daughter by one venter and a son by another venter and dieth seised of Lands in fee-simple and the eldest son entreth into the land and dieth without issue the Sister shall have the land and not the younger son though the younger son be heire to the father for the possession of the brother of the fee-simple maketh the sister to be heire but the brother must be in Actuall possession and there must be pedis positio a corporall fixing of his foot and entry upon the land and there must be some Act done to make her heire for she is but haeres factus by the actuall possession of her brother for the younger son is haeres natus to the father and if the eldest son had died before he had taken actuall possession the younger son might have entred and had the land as heire to the father but by the possession of the brother she being of the whole blood is made heire But in dignities where no possession can be had but such as descendeth to a man and his heires as in Dukes Earles Barons c. there can be no possession of the brother to make the sister inherit but the younger brother being heire to the father shall inherit the dignity inherent to the blood as heire to him was first created noble Coke ibid. And as Ploydon saith there is a great difference betweene lands in fee-simple and lands tailed in regard of possession for the possession of a brother of an estate taile as heire to his father shall not make the sister to be heire but it shall descend to the younger son of the halfe venter for he ought to have it per formam doni Ployd f. 57. a. And if a Bastard eigne abare in fee-simple land after the death of the father and dieth seised without interruption and his issue enter he shall hold it and the right of the mulier puisne and his heires are bound for ever Ployd ibidem So if a woman seised in fee consent to a ravishor and the daughter which is proxima de sanguine next of blood doth enter there the son after borne shall not take away the title and possession of the daughter So where a
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
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
affectum tribuit delinquendi minatur innocentes qui parcit nocentibus Coke l. 4. f. 45. a. Evil doings ought not to go unpunished because impunity ministreth a continuall affection of offending and he threatneth the innocent who spareth the Delinquent And Aristotle Pol. 7. Actiones justitiae sunt necessariae in civitate licet non eligibiles Though the actions of Justice that is the sentences and punishments of evill and condemned persons are not secundum se of their own nature eligible yet are they necessary in a City that the City may be the better ruled and saved for as Solon there are two things and tyes by which a Common-wealth is contained and preserved praemium poena reward and punishment and it is truly said Etsi meliores sunt quos ducit amor tamen plures sunt quos corrigit timor Thoughâ— they be the better persons whom the Love of goodness vertue draweth yet there are more whom the fear of punishment doth deter and correct and therefore the wisdome of our Law doth abhor that greater offences should pass unpunished So as that if a man be convict either of verdict or by confession upon an insufficient Indictment and no Judgment upon it given he may again be indicted and arraigned because his life was never in jeopardy and the Law wanteth his end which provideth that no evill Deeds should pass unpunished Coke l. 4. f. 45. a. for as Coke saith l. 5. f. 53 b. Oderunt peccare mali formidine penae The wicked to offend themselves refrain And from the same are scar'd for feare of pain And therefore by the Common Law is the offence of felony so severely punished and though the Judgment against such a Malefactor in that he shal be hanged by the neck untill he be dead yet implicitively he is punished First in his wife that she shall lose her Dower Secondly in his Children that they shall become base and ignoble Thirdly that he shall lose his Posterity for his blood is stained and corrupted that they cannot inherit to him or to any other Ancestor Fourthly that he shall forfeit all his Lands and Tenements which he hath in fee or in tail or for term of his life And fifthly all his Goods and Chattels And the reason was that men should fear to commit Feloâ—y ut poena ad paucos metus ad omnes perveniat that the punishment might be inflicted on few and the feare may come to all But some Acts of Parliament have altered the common Law in some of these points as by the Statute De donis conditionalibus lands in tail were not forfeited neither for Felony nor for Treason but for the life of Tenant in tail And this Law continued in force from the thirteenth year of Edward the first untill the twenty sixth year of Henry the eighth when by Act of Parliament Estates in tail are forfeited by attainder of high Treason but as for Felons the Statute De donis Conditionalibus doth still remain in force so as for attainder of Felony Lands and Tenements in tail are not forfeited but onely during the life of Tenant in tail but the Inheritance is preserved for the Issues but being attainted of high Treason or Petit treason the wife shall not be received to demand her Dower but in certain cases specially provided for Ployd f. 195. Coke com f. 392. a. b. And now the wife of a person attainted of misprision of Treason Murthâ—r or Felony is dowable by the Statute of 5 E. 6. c. 〈◊〉 c. in that case made and provided which is more favourable to the women then the Common Law was Coke ibidem Receditur a placitis Juris potius quam injuâ—iae delicta maneant impunita Bac. Max. f. 51. The Law will dispence with some grounds of the Law rather then crimes and wrongs should be unpunished quia salus populi suprema lex the safety of the people is the supream Law and the safety of the people is contained in the repressing of offences by punishment It is a positive ground that the accessory in Felony cannot be proceeded against untill the principall be tried yet if a man by subtility and malice set a mad man by some device to kill one and he doth so now forasmuch as the mad man is excused because he cannot have any will or malice the Law accounteth the Incitor as principall though he be absent rather then the Crime shall go unpunished 13 Eliz 1. So it is a ground in the Law that the appeal of Murther goeth not to the Heire where the party murthered hath a wife nor the younger brother where there is an elder yet if the wife murther the husband because she is the party Offendor the appeal leapeth over to the heire and so if the Son and Heir murther his Father it goeth to the second brother Ed. 4 M 28. 6. Stanf. l. 2 f. 60. But if the Rule be one of the higher sort of Maximes that are regulae rationales and not positivae then the Law will endure rather a particular Offence to escape without punishment then violate such a Rule As it is a Rule that penall Statutes shall not be taken by equity And the Statute of 1 E. 6. enacteth that those that are attainted for stealing of Horses shall not have their Clergy The Judge conceived that this should not extend to him that should steal but one horse and therefore procured a new act for it in 2 E. 6. c. 33. for it is not like the case upon the Statute of Gloucester that gâ—â—â—â—h an action of waste against him for term of life or years and yet if a man hold for a year he is within the Statute for penall Lawes are taken strictly and litterally onely in the point of defining and setting down the fact and punishment and in those clauses that concern them and not in generall words which are but circumstances and conveyances in the putting of the case and so note the diversity for if the Law be that for such an offence a man shall lose his right hand and the Offendor hath his right hand cut off in the Wars he shall not lose his left hand but the crime shall rather pass unpunished vide ibidem plura Nemo punitur pro alieno delicto Coke com f. 145. b. No man is punished for another mans fault And therefore the Defendant in a Replevin cannot claim property by his Bayliff or Servant and the reason is for that if the claim fall out to be false he shall be fined for his contempt which the Lord cannot be unless he maketh claim himself for no man shall be punished for anothers fault Dyer f. 66. pl. 14. It is the Law of God that every one shall bear his own burthen and receive judgment according to his proper fact and merit whether it be good or evill As whereas the Plaintiff chargeth the Defendants with an escape made and suffered by them they ought not to accuse
Law Wafrages and protection to the passing Merchants of the Sea was one of the principall causes of the payments of those duties Davis ibidem f. 12. And Dyer f. 43. Putteth a difference between a custome and a subsidy and saith that the custome for Merchandizes to be transported out of the Realme is an inheritance of the King and by the common Law and not given by any Statute and that appeareth by the Statute of 14. E. 3. which was the first Statute which maketh mention of any custome and that Statute doth not give or limit any Custome to the King but abridgeth and abateth the custome which was paid for Wool or Leather but a subsidy saith he is a Tax assessed by Parliament and granted to the King by the Commoners during the life of every King only which is made cleer by the case reported by Dyer 1 Mar. f. 92. where King Edward the sixth had granted a Licence to a Merchant stranger to transport all Merchandizes paying pro custumis subsidiis tot tantas denariorum summas quot quantas any english Merchant and Denizen should pay and no more And it was resolved by all the Judges after the death of Edward the sixth the grant was good for the Customes but void tor the Subsidies because the King had an Inheritance in the Custome as a Prorogative annexed to the Crown but in the Subsidies he had an estate only for life by act of Parliament But there is a third kind of duty payable for Merchandizes which are called Imposts or Impositions and these were sometimes rated and assessed by Parliament and then were they of the nature of Subsidies and sometimes were imposed by the Prerogative Royall to support the necessary charges of the Crown and then as the ancient Senator of Rome said Nihil magis justum est quam quod necessarium est There is nothing more just then that which is necessary Davis f. 12. vide ibidem plura The Impost upon Wines was first assessed by Parliament and limited to be paid for certain years which being expired is now continued by Parliament ibidem Opoâ—tet patrem familias vendacem esses non emacem Cato major Davis f. 10. The Master and Father of a Family ought to be a buyer and not a seller By the Grecians Kings were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pastors of the people and Emperors by the Romans Patres Patriae Fathers of their Country for their vigilant and Paternal care they were to take for the preservation and provision for the people for he is the publique Pater familias and is to bend his thoughts to the utility and commodity of the publique and as he is reputed a provident Father of a Family who hath more commodites to sell then occasions to buy so ought he to be a seller rather then a buyer and to provide that more native commodities be exported for sale and the less forrein Merchandizes imported to the buyer And therefore the little custome of forrein Commodties was then accepted of the King when but a little quantity of such forrein Wares were imported into England For in the time of Edward the first and after that in the times of Edward the third the native Commodities of England exported were of greater quantity and value by two parts of three at the least then the forrein Merchandizes imported by which King Edward the third raised so great a revenue out of the Native Commodities of his Dominions that it was noted for good Husbandry in that King for a Father of a Family ought rather to be a buyer then a seller but now it is altogether contrary for at this time the Out-gate is lesser then the In-gate and the forrein Commodities imported are of greater quantity and value by two parts then our native Commodities exported which is a great shame to our Nation to be so enamoured with Mercery and Grocery Wares imported by strangers and to expend upon those more then the value of all the Staple Commodities of our Country which will be in the end the decay and ruine of the Common-weale Davis ibid. Thesaurus regis est pacis vinculum bellorum nervi Coke l. 3. f. 12. b. The treasure of the King is the bond of peace and the sinewes of war And therefore the Common Law preferreth and advanceth the right of the King insomuch as Sir Henry Finch observeth you shall find it to be Law almost in every case of the King that is not Law in case of the Subjects and that with an intention to inhaunce the Kings Treasure and to replenish his Coffers whereby he may in time of peace advance the glory and honour of the Nation and in time of War be enabled to protect the Common-wealth against forrein incursions and invasions for the Kings Treasure is the bond of peace and sinewes of war And therefore in the case of the King which is not so in the case of a common person the body the lands and the goods of the Accomptant or Debtor of the King at the Common Law were liable to the execution of the King Dyer 234. before the Statute of 33 H. 8. c. 38. Coke ibidem and upon the same reason is this principall grounded Quando jus domini regis Subditi in simul concurrunt jus regis preferri debet Coke l. 9. 3. 129. b. when the right of the King and the Subject concur together the right of the King ought to be preferred As in Dame Hales case Ployd 262. Baron and Feme were Joynt-tenants of a term for years the Baron is selo de se he shall forfeit all and yet till the Office it surviveth but after the Office it hath relation before or at the least at the time of the death vide ibidem plura in Quicks case So Ploâ—d f. 263. b. If a Feme take husband and hath Issue and the land descend to the Feme and the Baron enter so that he is intituled to be Tenant by the Curtesie and then the Feme is found an Ideot and her Estate in the land is also found the King shall have the land and if the Feme dye the Baron shall never have the land by Curtesie for by the first possession of the Feme the Baron was entituled to be Tenant by Curtesie and when the Office is found the Title of the King shall have relation also to the first possession and so both the Titles commence at the same time but the King shall have the preheminence and because the Title of the King is in this case to the Frank-tenement of the land in that that he shall have the custody of it during the life of the Feme it shall utterly take away the Title of the Baron which before the Office found was vested in the Baron and therefore after the death of the Feme he shall not be Tenant by courtesie but the Issue shall have the lands out of the hands of the King if it be not
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
proferentem accipienda sunt Bacon Eliz. f. 11. As if I demise omnes boscos meos in villa de Dale for years this passeth the soile 14. H. 8.28 H. 8. Dyer 17. And if I sowe my Land with Corne and let it for for yeares the Corne passeth to my Lessee And if I grant ten pounds rent to Baron and Feme and if the Baron dye the Feme shall have three pounds rent because these words rest ambiguous whether I intend three pounds by way of addition or three pounds by way of deduction out of the rent of ten pounds it shall be taken strongest against me that it is three pounds addition to the ten pound of which more hereafter So Coke fol. 303. b. Ambiguum placitum interpretari debet contra proferentem An ambiguous Plea shall be taken strongest against the pleader for every one is presumed to make the best of his own Case and Coke l. 10. f. 50. Ambigua responfio contra proferentem est accipienda the Bishop of Sarums Case vide ibidem In obscuris secundum magis similius est judicandum vel quod plerumque inspici solet Regula I. C. and Coke l. 4.13 14. Sensus verborum ex causa dicendi accipiendus est sermones semper accipiendi secundum subjectam materiam In obscure and dark sayings we are to judge according to that which is most likely and which is wont to be and the sense of the words is to be collected from the cause of the speech and to be taken according to the subject of the matter which rule seemeth to qualify and moderate the other two vide ibidem S. Cromwells Case as first in words the Plaintiff bringeth an action upon the case for calling of him Murderer to which the Defendant said that as he was speaking with the Plaintiff concerning unlawfull hunting the Plaintiff confessed that he had killed diverse Hares with Engins to which the Defendant answered that he was a murtherer innuendo a murtherer of Hares and it was resolved that the justification was good for upon an action of slander the likeliest sense of words is to be taken and collected out of the occasion of the speech Coke ibidem And so in Deeds as if I have a free Warren in my land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren 32. H. 6. which is the more likely meaning for otherwise the Lessor would have excepted the Warren Vnivocum denoteth words of a certaine and distinct signification and expresseth the thing cleerly without any obscurity or Ambiguity of which the Law taketh especiall notice for that certainty in all contracts and conveyances is the cause of quiet and setlement of estates but incertainty is the author of variance and dissention from whence we have these notable grounds and maximes Misera est servitus ubi jus est vagum Coke l. 5. f. 42. a. God forbid that the inheritances of men should depend upon incertaines and it is a miserable servitude where the Law is wavering and therefore Ployd f. 28. a. In every Common-wealth it is necessary and requisite that things should bee certainely conveyed for certainty engendreth repose and incertainty contention The occasions of which contention our Law foreseeing hath prevented and therefore ordained that certaine ceremonies should be used in the transmutation of things from one man to another and namely of Frank-tenements which are of greatest estimation in our lawes to know the certaine times when things do passe and therefore in every Feoffment the Law ordeineth that livery and seisin shall bee made and in every grant of a reversion or rents that attornement should be made which are points certaine containing time wherefore it is well observed by Sir Edward Coke in his Preface to the second part of his Reports that in all his time there have not beene moved in the Courts of Justice of England two questions touching the rights of descent escheats or the like fundamentall points of the common-Law so certaine sure and without question are the principles and grounds thereof That as Sir John Davis in his preface there is no art nor science which standeth upon discourse and reason which hath her Rules and Maxims so certaine and infallible and so little subject to diverse interpretations as the common Law of England Whence Sir Edw. Coke is bold to pronounce that the Common Law of England is not incertaine in the abstract but in the concrete and that the incertainty thereof is hominis vitium non professionis the imperfection of man and not of the profession and lib. 6. f. 43. a. in particular blameth hee the subtile inventions imaginations of men in the practise of uses which have introduced many mischiefs inconveniences contrary to the ancient common law which hath certain rules to direct the estates and inheritances of men and therefore is it without comparison better to have Estates and Inheritances directed by the certaine rule of the common Law which harh beene the ancient true and faithfull servant to this Common-wealth then by incertaine imaginations and conjectures of any of those new inventors of uses without any approved ground of law or reason Coke l. 6. f. 43. a. And therefore in all cases law and equity will that incertainty bee avoided as the author of contention and that there bee an end of all controversies according to equity and right which is the finall intention of all Lawes Coke l. 8. 53. And Coke l. 1. f. 85. a. The Judges ought to know the intention of the parties by certaine and sensible words which are agreeable and consonant to the rules of Law as if Land bee given by deed to two to have and to hold to them and haeredibus it is void for the insensibility and incertainty and though it hath a clause of warranty to them and their heires that shall not make the first wordes which are incertaine and insensible to bee of force and effect in Law although his intent appeareth but his intent ought to bee declared by words certain and consonant to Law So Coke comment f. 20. b. If a man letteth Lands to A. for life the remainder to B. in taile the remainder to C. in forma praedicta the remainder is void for the incertainty And therefore Ployd f. 272. a. giveth this ground that every contract sufficient to make a Lease for yeares ought to have certainty in three limitations in the beginning of the terme in the continuance and in the end of the same all which ought to be known at the beginning of the Lease and the Lease that wanteth them Mr. Brown said is but bibble babble vide ibidem Fullers case and Coke l. 6. f. 35. the Bishop of Bathes case Ployd f. 14. a. If I give all my mony in my purse to I. S. hee cannot have an action for it unlesse hee alledge the certainty of it so as without certainety the action is not maintainable according to
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-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
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
the writings are so is the chests and the box they are in because the Charters and Writings are the more worthy Noy Max. f. 7. 11. H. 4. 30. If one be instituted and inducted the tryall shall be by the Jury by reason of the induction because the realty as the more worthy is to be preferred 22. H. 8. 27. 43. E. 3 13. A Lease is of a Chamber and a Bed rendring rent in debt for the rent the Defendant shall not wage Law for the rent because the Chamber is magis dignum 21. E. 4. 3. An adulterer taketh away a mans wife and putteth her into new clothes the husband may take the wife with her clothes 11. H. 4. 31. A base mine where there is royal ore shall be the Kings for the worthinesse of the ore Ployd 318. A villaine shall make free Land to be villaine Land but villaine Land shall not make a Freeman to be a villain for the body of a man is more worthy then Land and therefore the Land shall follow the nature of the person 3. Eli. 238. So the Kings Land which he hath in his naturall capacity shall be demeaned according to the priviledge and prerogative of his body royall If a man be condemned in trespasse or re-disseisin and is in execution for the fine of the King or if he be outlawed of Felony his body shall not be in prison at the suite of the party for that the King hath an interest in his body who is magis dignus A majori digniori fieri debet denominatio Coke Com. f. 355. b. As Husband and wife are joynt Executors the Writ shall be executoribus non executricibus 22. H. 6. 30. A convenient proportion of Gold and Silver ore shall give the name to be a Mine royall Ployd f. 323. The grant of the Office of the Kings Tennis-Court the Play of the House is included in the grant because that onely giveth the name Coke l. 8. f. 45. in Woods case Dyer 314. Where speech is of a will it shall be intended of the last will for the will and the last will are taken for all one Quod in minori valet valebit in majori what is of force in the lesser shall be of force in the greater Coke com f. 260 a. As if a man in prison shall not be bound by a Recovery by default for want of answer in Court of Record in a reall action which is matter of Record a multo fortiori a descent in the Country which is matter of deed shall not for want of claime binde him that is in prison specially seeing he could not goe out of prison to make his continuall claime and the argument a minori ad majus doth ever hold affirmatively and the argument a majori ad minus doth ever hold negatively for it is also a rule quod in majori non valet non valebit in minori what is not of force in the greater shall not be of force in the lesser Magis minus non diversificant speciem Arist 2. Top. the greater and lesser doth not make the species and essence of things to differ the reason why great woods of the age of twenty one years are exempted from the payment of tithes is not because they are part of the free-hold or inheritance and that men use not to pay their tithes out of their free-hold but out of those things which spring out of their free-hold as out of corne grasse fruite and the like for the greatest Tree is no more part of the freehold then the lowest bramble and are both equall part of the ground wherin they grow do take a like sustenance and nourishment from the same neither do they differ as they are Trees one from the other secunduÌ„ magis minus but that the one Tree is a great Tree and the other a small shrub for the greater and the lesser doe not diversify the species But the cause of the provision in England by the Stat. of 45 E. 3. Ployd f. 470. b. why great Trees of the age of twenty one years doe not pay tithes is for that the one yeeldeth more profit to the common wealth and are Timber and serve for any use for building and therefore the cutting downe of them is made more penall then the other as in the like case by the Civill Law whosoever privily cutteth downe or barketh a Vine an Olive or a Figtree and doth any other unlawfull act whereby any fruitfull tree or any Timber tree doth perish and decay it is theft and is punished in the double value of the hurt which is done and if he be tenant of the ground who hath done it he loseth his hold because the Law respecteth the necessary use of them Ridleys view of the Law f. 207. Actus repugnans non potest in esse produci Reg. I. C. A repugnant act cannot be brought into being Ployd f. 355. a. Any man who is a legall owner of Land may give it unto any person in what manner and at what time he pleaseth so that his guift be not contrary to Law or repugnant As if an entaile be made upon condition that if the Donee alien that then it shall remaine unto another that is repugnant and therefore void for when he hath aliened it to a stranger then it is contrary to the alienation of a remainder over by it Coke l. 1. f. 84. a. Corbets case upon an estate the proviso was that if tenant in taile c. be resolved c to procure or attempt any act by which the estate taile may be barred and determined that then the uses and estates to him limited in respect of such person so attempting shall cease as if he were naturally dead the said proviso was adjudged repugnant and contrary to Law for the death of the tenant in taile is not the ceasing of the estate taile but the death of the tenant in taile that hath no issue of his body vide ibidem plura A Feoffment in fee of two acres unto two men Habendum one acre to one and the other to the other this Habendum is void for the contrariety for the Premisses give him an interest in both acres and the Habendum eâ—cludeth him from one 2. P.M. 153. In a trespasse de domo fracta muris ejusdem domus fractis the Defendant cannot pleade guilty to the breaking of the house and justify the breaking of the Walls for the house and the walls are all one and cannot of the same thing both justify and pleade not guilty for the one is contrary to the other and according to the rule cantraria allegâ—ns non est audiendus 21. H. 7. 21. He is not to be heard who alledgeth contrarieties an obligation is made solvendum nunquam this Solvendum is void for the contrariety and the thing presently due 21. E. 4. 36. A. is bound to B. Solvendum eidem A. the Solvendum is void for the contrariety and
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
disseisin the law is removed from land to land beyond these degrees which writ is given by the statute of Marlebridge c. 18. though before at the common law in respect of such long possession the demandant was driven to his writ of right vide ibidem plura Vis unita fortior Ployd f. 307. a. united force is more strong as in Sharingtons case There are three causes premised to make and raise uses in lands the first is his affection for the provision of his males the second is his affection that the lands he had should remaine in his blood the third is his Brotherly love he bore to his brother whereas every one of them had beene sufficient to raise uses yet when all are put together they are of the greater force for forces united are more strong Conjunctio maris feminae est de jure naturae Coke l. 7. f. 13. Arist 1. Polit. Nuptias non concubitus sed consensus facit Vlpian consensus non concubitus facit matrimonium Coke com f. 33. a. In matrimony there is a conjunction both of the bodies and the mindes and in contracting matrimony the consent of the mind obtaineth the chiefe and substantiall parts and corporall copulation the second and therefore is it said that the consent and not the copulation maketh the marriage for every denomination is from the greater and a woman by the common law cannot consent before she is of the age of twelve yeares nor a Man untill the age of fourteen yeares and these are called annos nubiles because at that age either of them may disagree from a former marriage Coke ibidem for a marriage infra annos nubiles underneath the marriageable yeares is inchoate and imperfect to all purposes except her dower and accordingly was it resolved in Ambrosa Gorges case Coke l. 6. f. 40. a. Who being married and her husband dying before she was of the age of ten yeares was notwithstanding the former marriage adjudged to be in ward to the Queen because the former marriage was no marriage before consent and they could not consent ante annos nubiles for the consent and not the copulation maketh the marriage And therefore is matrimony defined by Britton to be assemblee del home feme alieur deux volunts a conjunction of a man and woman according to both their wils f. 246. And which as Bracton saith l. 1. c. 5. fit per mutuam voluntatem for their mutuall consent is the efficient and necessary cause of marriage and therefore a marriage enforced contrary to the will of either party is unnaturall and illegall as Kelway 19. H. 7. 52. b. Where the case is that Margaret the now wife of Keble brought an action of trespasse against Vernon to which the defendant said that he heretofore at the Church of S. in the said county tooke the Plaintiff to wife and there were married according to the lawes of the Church and demanded judgement if action to which the Plaintiff said that those espousalls were made by menaces and duresse of imprisonment and against the will of the said Plaintiff in another county and prayed her damages and after great debate whether the espousalls were avoidable by duresse or no Frowick said that he had seen the bookes and that it seemed cleerely that the espousals were well avoided by duresse and the replication vide ibidem plura And which also seemeth to be the resolve and determination of all nations for for it Romulus himselfe was upbraided to wit for forcing the Sabine Virgins against their wils to marry the Romans and was declared by his successors the Roman Authors to be a barbarous act and a crime equivalent to a rape as Propertius l. 2. El. 6. Tu criminis author Nutritus duro Romule lacte lupae Tu rapere intactas docuisti impune Sabinas Thou hardy Romulus nurs'd by brutish care And Wolvish milk was so fierce to dare To snatch the Sabine Virgins from their Sires And force them to the nuptiall of their friendes desires A Savage crime unpunisht And by Virgill more fully Raptas sine more Sabinas That is ravished contrary to the custome of all nations for in that age when Rome most flourished the customes of the Romans were the lawes of all nations as Claudian l. 4. Stil Armorum legumque parens quae fundit in omnes Imperium primique dedit cunabula juris Rome by the power of Armes and lawes doth sway The spacious universe and did wisely lay The Plat-forme and the grounds of law and right And therefore not long after by the Romane civill law the consent of the espoused parties was ratified by an oath which being but a contract was called sponsalia de futuro which also in our law at this day is of great force for by it a precontract is a sufficient cause of divorce a vinculo matrimonii Coke com f. 285. a. Vir uxor sunt quasi unica persona quia caro una sanguis unus Cok com f. 187. b. The husband and wire are but one person in law Littleton because they are one flesh and one blood as the Scripture saith and as the Philosopher are by nature conjoyned As if a joynt estate be made to the husband and wife and to a third person the husband and wife shall have one moiety and the third person the other moiety because the husband and wife are but one person in law so if an estate be made to the husband and wife and to two others the husband and wife shall have but the third part Lit. If an estate be made to a villaine and his wife being free and to their heires they have severall capacities the villaine to purchase for the benefit of the Lord and the wife for her owne yet if the Lord of the Villaine enter and the wife survive she shall have the whole land because there was no moieties between them 40. Ass Pl. 7. If a woman marry with her obligor the debt is extinct and she shall never have action against the Obligor because the suit against her husband by inter marriage was suspended and therefore being a personall action and suspended against one it is discharged against both 21. H. 7. 29. h. So is it If a feme sole baile goods to one and marry with the bailee they are the bailees good so it is if the wife buy goods of one 33. E. 3. If husband and wife purchase lands to them and their heires and the hsband alien the land c. she shall recover the whole in a cui in vita after his death and the warranty of one of them or his Ancestors is a bar of the whole against them both 39. H. 6. 45. 21. R. 2. Judg. 63. And for the same reason the husband cannnot enfeoff the wife but upon a feoffment made unto her by a stranger he may deliver seisin unto her by a letter of attorney for thereby he giveth nothing himselfe Perk. 40. If a
feoffment be made to a man and a woman and their heirs with warranty and they inter marry and after are impleaded and recover in value moyeties shall not be between them for though they were sole when the warranty was made yet at the time when they recovered and had execution they were husband and wife at which time they cannot take by moyeties Ployd 483. Nichols case So if a reversion be granted to a man and a woman and their heires and before attornement they inter-marry and then attornement is made they in this case shall have no moieties No more if a Charter of feoffment be made to a man and a woman with a letter of Attorney to make livery and they inter-marry and then the livery is made secundum formam chartae they shall have no moiety Coke com f. 187. a. Although at the common law a man during the coverture could neither in possession reversion or remainder limit an estate to his wife yet a man now may by the statute o 27. H. 8 Covenant with others to stand seised to the use of his wife or make a feoffment or other conveyance to the use of his wife for by it the estate is executed to such uses for an use is but a trust and confidence which by such a meane may be limited by the husband to the wife but a man cannot covenant with his wife to stand seised to her use because they are one person in Law And if cesty que vie doth devise that his wife shall sell his land and make her Executrix and dyeth and she take another husband she may sell the land to her husband for she doth it in anter droit and her husband shall be in by the devisor Coke com f. 112. a. If a free man marry a woman which is a neife she shall be free for ever although the husband dyeth and she surviveth because they are but one person in law unlesse there be some speciall Act made by the wife afterwards as devorce or cognisance in Court of record F. N. B. f. 78. g. If an english man marry an alien borne she shall be a Denizen for the same reason Abri of Ass by Brooke Demzen Iâ— the husband and wife â—aile goods to one they shall not joyne in an Action of Detinue for it is the bailement of the husband onely and void as to her The husband may have an Action of trespasse for taking away his wife F. n. b. f. 53. b. A man may have an Action at the common law de muliere abducta cum bonis viri if she hath attained to the age of consent and hath actually consented to the marriage because it is not properly a marriage till she doth consent 13. E. 1. c. 35. Yet Brooke 4. 47. E. 3. trespasse f. 420. rather thinketh that it shall be intended a good marriage till she doth disâ—ssent but where the marriage is compleat though the wife is dead or divorced at the time of the Action brought the action is maintainable but the word rapuit must be in the writ as well as abduxit 43. E. 3. and therefore it will not lie against a woman because one woman cannot ravish another 43. E. 3. 23. Fulb. l. 1. f. 79. Hereupon it is that the wife can never answer in any Action without her husband and if upon an Action of trespasse the wife cometh in upon a cepi corpus and the husband doth not appeare she must be set at large without any mainprise till her husband doth appeare but he appearing may answer without her and therefore a protection cast by the husband serveth for the wife also Finch Nomot f. 41. If tenant in taile enfeoff a woman and die and his issue within age taketh her to wife he shall be remitted for he cannot sue a Formedon in this case unlesse he will sue against his wife because by the enter-marriage he is seised in her right ibid. Si mulier nobilis nupserit ignobili desinit esse nobilis Coke l. 6. f. 53. b. and l. 4. f. 118. b. If a noble woman marry an ignoble man she ceaseth to be noble as when a Barronesse marrieth under the degree of a Baron by such marriage her dignity is determined but that is to be understood of a woman hath attained her nobility by marriage of a Duke Countesse or Baron and if such an one marry with one is ignoble she loseth her dignity to which shee hath attained by the marriage with one of nobility but if a woman be noble by descent as a Dutchesse c. though she marry one under the degree of nobility yet her birth-right shall remaine for it is annexed to her blood and it is a Character indelebilis ibidem And if a Dutchesse marry with a Baron of the Realme she remaineth a Dutchesse and loseth not her name Coke com f. 16. b. Vir est caput mulieris Bracton Coke com 1 2. a. The husband is the head of the wife for God saith Ployd f. 305. hath divided reasonable creatures into two sexes male and female and the male is more soveraine and the female more base as Aristotle l. 1. Polit. Mas est praestantior deterior vero faemina and therefore doth the female change her sir name into the name of her husband and also men for the greater part are more reasonable then women and have more discretion to guide things then women have and therefore Aristotle in the same place saith mas ad principatum aptior est natura quam faemina the man is more apt by nature to rule then the woman and as the woman is not so apt to governe in high matters so is shee not in things of a lower degree and therefore saith Bracton l. 2. c. 15. Omnia quae sunt uxoris sunt ipsius viri non habet uxor potestatem sui sed vir all things which are the wifes are the husbands and the wife hath not power of her selfe but her husband for all personall things shee hath are meerly his and at his disposing and as the office of an executor f 210. are so setled in the husband upon the marriage as any other that were his own before so as if goods be given to a Feme-covert and another the joynture is severed and the husband and the other are tenants in common and the executor of the husband shall have all the goods that were given to the wife 21. H. 7. 29. All the reall Chattells of the wife are also the husbands for as Hoberd f. 4. Radfords case though the lease were at the first the wifes and that the husband was possessed in her right so as though he had purchased the Fee-simple the Lease had not been extinct yet by the inter-marriage he had full power to alien it and if he survive the wifâ— he is to enjoy it against her Executors or Administrators vide Ployd 191. But where the wife hath a terme for yeares the husband cannot devise it to another
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
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
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
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
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
quae quidem diaturnitate temporis efficit L. 1 de repub f. 2. ut nonnulla toleranda esse videantur que contra jus boni aequi esse videantur we are to yeild something to custome which certainly by long continuance of time doth effect that some things may seem to be tolerated which seem to be against the rule of right and equity so Moses tolerated and suffered the Jewes libello repudii by a bill of refusall to forsake their wives though the indissoluble bond of matrimony was ordained of God and this dispensation as our Saviour saith was permitted for the hardnesse of their hearts because their hearts through inveterate custome were hardned against that divine ordinance Consuetudo more utentiam approbata vim legis obtinet Bract. l. 3. c. 1. Coke l. 4. f. 21. Consuetudo est altera lex a custome approved by the manner of the users obtaineth the force of a Law and is another Law Arist 1. R. for those things are done by custome as the Phylosopher saith which therefore we doe because we have often done them and when a reasonable act once done was found to be beneficiall and agreeable to the people then did they use and practise it often and so by the reiteration and multiplication of the same became a custome and so being without interruption time out of mind practised for the quiet by the approbation of the people obtained the vigor of a law for as Bo. princep legum Sod de repub l. 1. c. 1. pulus morum magister the Prince is the master founder of laws ordinances and the people of manners and customes Just l. 1. tit 2. which accordeth with the description of Justian quod quisque populus sibi jus constituit id ipsius proprium civitatis est what every people ordaine to be a Law to themselves that is a proper and municipall Law of the City Cicer. in La. Maxima est vis consuetudinis saith the eminent Legist of Rome the force of custome is very great in so much that as by the Law of nature consuetudo est altera natura so by the Law of Nations consuetudo est altera lex for as Coke l. 5. Epist ad lectorem of his own knowledge professeth that at this time all Kingdomes and common Wealths are governed by Laws and that every Nation hath his peculiar and approved Customes which are the most usuall binding and firmest Lawes so as it is said per varios casus artem experientia fecit it may be said per varios usus legem experientia fecit Co. com f. 97. b. There are particular Customes and generall Customes particular Customes are such as are used in some certain County City Towne or Lord-ship and generall Customes are such as are used throughout all England which are the common Law of England In his preface for as Davis the common Law of England is nothing but the common Custome of the Realme and Coke the common Law is nothing else but a common opinion generally received and Finch the common Law is a Law used by prescription throughout the Realme of England Finch Nomot f. 75. Ployd f. 95. a. The common Law is nothing else but common use and the mirror of Justice c. 1. l. 9 The Law is ancient uses warranted by Scriptures and is called the common Law Dav. pref because given to all in generall and to conclude this point with this definition which seemeth to me to include all Custome is a reasonable act iterated multiplied and continued by the people L. 1. R. c. 3. de temps dont memoire ne court time out of minde Aristotle saith injustum est apud omnes praeter consuetudines patrias quicquam agere all Nations hold it unjust to doe any thing against the Customes of the Country which is a principle in our Law that Custome is another Law Ennig Frag. and that we may say with the ancient Roman Poet as he sung of the Romans Moribus antiquis stat resque Britanna virisque The state of England standeth on the ancient Law And though it be jus non scriptum and onely written in the memory of man yet as Sir John Davis it doth far excell our written Lawes namely our Statutes or Acts of Parliament which is manifest in this that when our Parliament have altered In his preface and changed any fundamentall point of the common Law those alterations have been found to be so inconvenient for the Common-Wealth as that the common Law hath been in effect restored againe in some points by other Acts of Parliament in succeeding ages as it is a fundamentall principle of the common Law Quod haereditarium jus omne per feodum simplex transit that all estates of inheritance are fee-simple which the Statute of 13. Ed. 1. de donis conditionalibus intended to limit and to give every man power to create a new estate in taile and establish a perpetuity of his Lands so as the same should not be aliened or letten but during the life of tenant in taile whereupon these inconveniences ensued purchases defeated leases evicted and other estates and grants made upon good consideration avoided creditors defrauded of their just debts and offendors enboldened to commit capitall offences c. who therefore were first barred by common recoveries and then docked by fines 15. E. 3. 14. by Herb. Coke l. 4. Ep. ad lectorem So the Statute of non-claime of 34. E. 3. is against a main point of the common Law whereby ensued the universall trouble of the Kings Subjects and therefore was it altered by the Statute of H. 7. c. 24. Coke ibidem 32. So by the grounds of the Law Lands were not devisable before the Statute of 32 34. H. 8. concerning which dayly experience teacheth us that many subtile and intricate questions arise concerning the construction of Wils to the ruine of many and hindrance of multitudes Coke ibi And it is a politick axiom that the alteration of any fundamentall point of the common Law which is ratified by use and experience is most dangerous and therefore we ought to vote and resolve with all the Earles and Barons in Parliament holden in the twentieth yeare of H. 3. against the Bishops who would have introduced the civil Law Nolumus leges Angliae mutare we will not change the Lawes of England To which purpose I add the asseveration of Cicero ante nostram memoriam terterum morem Frey Cil. de repub ac majorum instituta retinebant excellentes viri before our memory excellent men did retaine the custome of the ancient and the institutes of their elders Optimus legum interpres Consuetudo Co. l. 2. f. 81. a. The best expounder of the Law is custome If land holden by grand Serjanty be aliened without licence it is forfeited by the Common Law because the service of the body cannot be transferred to another 14 E. 3.
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
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