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
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
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
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
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
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
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
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
if an Action of wast be brought by two joynt-tenants the release of one shall bar the other as it is holden 9. H. 5. f. 15. by the Court for in wast the personalty is the principall and though one joynt-tenant cannot prejudice the other in regard of the matter of inheritance or franke tenement yet in regard of the profits of the frank-tenement they may vide ib. plura If husband and wife purchase socage lands to them and their heires of their bodies and they having issue within fourteen yeares of age doe dy in this case if the grandmother of the part of the mother of the issue first seise the Ward she shall have the Wardship and not the grandfather of the part of the father of the issue 8. Eliz. 296. b. because they are in aequali jure and where the right is equall the condition of the possessor is the better To which obiter may be annexed the sage judgement of Augustus who after the civill wars being molested with the complaints of diverse who demanded many places of ambiguous right from the possessors because they severally were given by the Senate Pompey Caesar Lepidus or Augustus to the Souldiers gave sentence for the possessors Duo non possunt unam rem in solido possidere R g. I. C. Vlpiamus Coke com f. 368. a. Two cannot possess one and the same thing fully and wholy for dominion had its beginning from possession and as there cannot be two Lords and Masters of one and the same thing fully and wholly so cannot two fully and wholly possess one and the same thing As if A. of B. be seised of a Mese F. of G. that hath no right to enter into the same Mese claiming the said Mese to hold to him and his heires entreth into the said Mese but A. of B. is continually abiding in the same Mese In this case the possession of the frank-tenement shall alwaies be adjudged in A. of B. and not in F. of G. because where two be in one house or other tenements and the one claimeth by one title and the other by another title the law shall judge him in possession that right hath for two cannot possess one and the same thing fully and wholly But if a man hath issue two daughters Bastard eigne and mulier puisne and dieth seised and they both enter generally the sole possession shall not be adjudged onely in the puisne because they claime by one and the same title Coke ibidem Yet though the possession of one thing cannot be fully and wholly but in one yet the property may be in two as Ployd f. 5. 24. Manwood said it is not strange in our law that two should have a severall interest in one and the same terme and two properties in it for if lessee for yeares grant over his terme to another by deed indented rendting rent and that for default of payment that he shall enter and retaine till the grantee hath paid to him the rent if he doe enter for default of payment and retaine he hath one property and the grantee also hath another property for his interest is not gone but hath a property tel quel such as it is and may have all the property upon payment of the arreares So if one hath a terme for yeares and is bound in a recognisance or statute staple and execution for non pay-ment is sued against him and the terme is extended and a certaine annuall value delivered to the Connusee as it well may be for it may bee sold out-right or extended to an annuall value there the connusee hath one property for the payment of his debt and the lessee another property and upon the payment of the debt shall have the terme again A woman made a lease for yeares of mills in Kent with exception that she should have the profits and there was a great debate whether the exception were good or no because the profits of the mills was all the benefit and in effect the mills themselves but at the last the exception was judged good in law and that the woman should have the profits There if shee enter to have the profits she hath one property and the lessee another property and it is incertaine how many yeares the property of the woman will continue So if one Lease sheep for a time to manure his land or pawn his dog as the case was in 5. H. 7. The owner hath some property and he to whom the Sheep is leased or the dog pawned another Ployd ibid. Possessio fratris de feodo simplici facit sororem esse haeredem The possession of the brother of a fee simple maketh the sister to be heire Littleton Coke com f. 14. b. As if one hath issue a son and a daughter by one venter and a son by another venter and dieth seised of Lands in fee-simple and the eldest son entreth into the land and dieth without issue the Sister shall have the land and not the younger son though the younger son be heire to the father for the possession of the brother of the fee-simple maketh the sister to be heire but the brother must be in Actuall possession and there must be pedis positio a corporall fixing of his foot and entry upon the land and there must be some Act done to make her heire for she is but haeres factus by the actuall possession of her brother for the younger son is haeres natus to the father and if the eldest son had died before he had taken actuall possession the younger son might have entred and had the land as heire to the father but by the possession of the brother she being of the whole blood is made heire But in dignities where no possession can be had but such as descendeth to a man and his heires as in Dukes Earles Barons c. there can be no possession of the brother to make the sister inherit but the younger brother being heire to the father shall inherit the dignity inherent to the blood as heire to him was first created noble Coke ibid. And as Ploydon saith there is a great difference betweene lands in fee-simple and lands tailed in regard of possession for the possession of a brother of an estate taile as heire to his father shall not make the sister to be heire but it shall descend to the younger son of the halfe venter for he ought to have it per formam doni Ployd f. 57. a. And if a Bastard eigne abare in fee-simple land after the death of the father and dieth seised without interruption and his issue enter he shall hold it and the right of the mulier puisne and his heires are bound for ever Ployd ibidem So if a woman seised in fee consent to a ravishor and the daughter which is proxima de sanguine next of blood doth enter there the son after borne shall not take away the title and possession of the daughter So where a
not though a deed without an inrolement may pass the reversion but it was meant they should pass together if one disseise another of two Acres in Dale and the disseisee release to the Disseisor all his right in all his Lands in Dale and delivereth the release as an escrow to be delivered to the disseisor as his deed before the second of May and before that day the disseisor disseiseth him of another Acre in D. and then the releafe is delivered unto him the second day of May the right to the third Acre shall not pass because it was not his intent to release it Ployd One reciting by his Deed that whereas by prescription he hath used to finde a Chaplaine because some controversie hath growne of it granteth by the same deed to doe it this determineth not the prescription for the intent of the Deed reciting the prescription was to confirme it and not make a new grant 21. H. 7. 6. Though it be a generall rule that the words which the common people use to expresse their intent ought to be taken according to the intent and not according to the very definition in Hills and Granges case f. 170. And that generalis regula generaliter est intelligenda yet this rule is principally to be observed in cases of uses which were onely trusts and confidences between man and man Coke l. 6. f. 64. vide ibidem plura in Sir Moile Finches case And Coke l. 1. f. 100. Shelleys case we finde in diverse cases of our Books that the intention of parties is the direction of uses by a conscionable and benigne construction as if a man seised of Lands of the part of his mother maketh a feoffment in fee reserving a rent to him and his heirs by the common Law the rent shall goe to the heir of the part of the father Lit. But if a man be seised of lands of the part of the mother and maketh a Feoffment in fee to the use of him and his Heirs such use shall not goe to the heire at the common Law but in regard the Land moved from the part of the mother therfore in equity the use which is nothing else but a trust and confidence shall also goe to the heirs of the part of the mother 5. E. 4. f. 4. And though Littleton saith that a man in a Feoffment and grant shall not have a Fee-simple without these words Heirs yet if a man before the Statute of 27. H. 8. had bargained and sold his Land for mony without these words heires the bargainee had a Fee-simple because at the common Law nothing passed from the bargainer but an use which is guided by the intention of the parties which was to convey Land wholly to the bargainee for that the Law intendeth that the bargainee paid the true value of the Land for it is in equity and according to the intent of the parties the bargainee had a Fee-simple without these words heires 27. H. 8. f. 5. Coke ibidem And as Ployd f. 345. a. A fortiori the intent saith he shall be observed in wills where the words cannot be performed for Testamentum est testatio mentis but that which is other then the intention is not the testation of the minde and therefore as he saith also f. 54. b. It is the office of Judges to marshall the words of wills according to the intentions of the parties for the most part of them are made in extremity and when there is no counsell of Law ready or present and the testators themselves are not for the most part learned in the Law and are accounted inopes consilij neither have they knowledge to put words in good order and therefore the ignorance and simplicity of those which make their wills require a favorable interpretation of the words of the will according to the intent As Lands were devised to one for life the remainder for life the remainder Ecclesiae sancti Audreae in Holborne and since the death of tenants for life the Parson of the said Church sued an ex gravi querela and it was pleaded in Judgement that the remainder took no effect because the Church was not a Parson capable and upon that was a demurrer and adjudged that the devise was good and that the Parson shall have execution and yet the Parson was not named in the devise but was comprehended in it Pas 21. R. 2. If a man devise the Mannor of D. and had nothing in it at the time of making the will and that since he purchased it it shall passe by the devise for it shall be taken his intention was to purchase it and if it should not passe the will should be void to all intents Ployd f. 344. a. So if one devise Land to the wife of I. S. and I. S. dyeth and shee taketh to husband another and after the devisor dyeth shee shall have the Land and yet shee was not the wife of I. S. when the devisor dyed nor shall not take it as his wife but the intent was that shee that was the wife of I. S. at the time of the making of the Will shall have it And if a man devise Lands to Alexander Nowell Deane of Pauls and to the Chapter there and their Successors and Alexander Nowell dyeth and a new Deane is made and then the devisor dyeth the land shall vest in the new Deane and Chapter and yet it vesteth not according to the words but according to the intent for the cheife intent was to convey it unto the Deane and the Chapter and their Successors for ever and the singular person of Alexander Nowell was not the principall cause but by chance was one of the causes Ployd 344. b. If one devise by will in writing Land to one and his Heirs and then in another clause after he deviseth out of that Land a rent-charge to him and his heirs it shall be good to the one for the rent and to the other for the Land and the rent in construction of Law shall be taken to be first devised although it be last in words and so one part shall stand with the other and good sence shall be made and the intent of the testator shall be observed in both Ployd f. 541. contrary to the rule of the civill Law ubi pugnantia inter se in testamento jubentur neutrum ratum est If in the Premisses of a will one deviseth Lands to one in fee and in the end of the will he deviseth it to another in fee the latter part shall confound the former because he had last such an intent and as the last will shall repeale the former will by the same reason the last part of the will shall repeale the former part of the will which is contrary to it ibidem vide plura in Paramors case Bendloes Rep. f. 209. B. Being sick sent for a Councellor and desired him to write his last will and testament of his Lands and declared unto
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
re-entry is good if the other party confesse the condition If twelve be sworn and one depart another of the pannell by consent may be sworn and with the eleven give verdict The Court in a Quare impedit by consent may give longer day then is limited by the Statute of Marlebridge The Statute of 2. E. 3. 20. E. 3. provide that neither for the great Seale or the petty Seale Justice shall be delayed yet when the matter concerneth the King onely if he command it it may be stayed F. N. B. 21. b. Tenure at this day may be created by consent of all notwithstanding the Statute of Quia emptores terrarum 27. H. 8. By speciall consent of parties re-entry may be made for default of payment of the rent without demande of it Dyer 78. vide by all which cases it appeareth that consent of parties altereth the forme and course of Law ibidem Coke l. 5. f. 40. Electio semel facta placitum testatum non patitur regressum 20. H. 6. 24. Coke com f. 146. a. An election once made and testified by pleading suffereth no returne As if a Rent-charge be granted to A. and B. and their heires and A distraineth the Beasts of the Grantor and he sueth a Replevin A. avoweth for himselfe and maketh conusance for B A. dyeth B. surviveth B. shall not have a Writ of Annuity for in that case the election and the avowry for the rent of A. barreth B. of any election to make it an Annuity ibidem Coke l. 4 f. 5. b. in Vernoms case If the Baron discontinue the Land of his wife and dyeth and the wife bringeth a Writ of dower against the discontinuee and recover the third part shee is by it estopped to bring a cui invita for by the Writ of Dower shee claimeth Title of Dowâ—r onely and therefore shall be estopped to claime any other right by a cui invita 10. E. 3. double Plea 8. 10. E. 3. Scire facias 13. F. N. B. 194 17 Ass Pl. 3. For when shee bringeth her Writ of Dower and hath judgement to have the third part of all by it shee affirmeth that shee hath but title of Dower and by consequence no estate and therefore shee shall be estopped to claime any part of it of which shee hath demanded by her Writ to be endowed and an acceptance of rent by her Deed indented concludeth the feme of her right 11. H 7. 10 vide ibidem plura in Christians case But here a diversity is to be observed that a man may have several remedies for a thing that is meerly personal or meerly reall As if a man may have an action of account or an action of debt at his pleasure he bringeth an action of account appeareth to it and after is non-suite yet he may have an action of debt afterwards because both actions charge the person the like case is of an assize of a writ of entry in the nature of assize and the like Coke com f. 146 a. Multa conceduntur per obliquum quae non concâ—duntur de directo Coke l. 6. f. 47. a. Many things are granted by the by which are not directly granted As when a Bar is pleaded in a reall or personall Action as a release c. in a forrain County there the Jurors which try it shall assesse damages according to the profits of the Land in another County so by that meanes enquire of things locall in another County for many things are granted by the by c. And when they try the matter of the Bar upon good and pregnant evidence they ought to finde all dependants upon it as damages c. vide ibidem plura Dispositio â—e interesse facturo lest inutilis Bacon f. 56. The grant of a future interest is vaine and void for the Law doth not allow of grants unlesse there be a foundation of an interest for the Law will not accept of Grants of Titles or of things in Action which are imperfect interests much lesse will it allow a man to grant or incumber that which is no interest at all but meerly future As a Writ of Annuity was granted by a prebend after collations admissions and institutions but before installation or induction which though it was confirmed by the ordinary who was the Patron also was adjudged void because he had but jus ad rem and a future interest but not in re for he shall not be said a prebendary to all intents nor at the Common Law without the reall possession which is by induction Dyer 221. Pl. 18. A. maketh a Lease of Land for years to B without reservation of the Woods and Trees the Lessor cannot sell all the Woods and Trees for the Woods and Trees are parcell of the Lease and passe to the Lessee as well as the Land if they be not excepted upon the Lease for all the fruites and profits coming from the fruitfull Trees belong to the Lessee and the shadow and also the branches and loppings for fire or enclosure of fences Dyer 90. Pl. 8. If I grant unto you that if you enter into an obligation to me of one hundred pounds and after procure me such a Lease that then the same obligation shall be void and you enter into such an obligation unto me and afterwards doe procure such a lease yet the obligation is simple because the defeasance was made of that which was not 20 Eliz. 19. H. 6.62 So if I grant unto you a rent-charge out of white-acre and that it shall be lawfull for you to distraine in all my other Lands whereof I am now seised and which I shall hereafter purchase although this be but a liberty of distresse and no rent save onely out of white-acre yet as to the Lands after to be purchased the clause is void 27 E. 3. If I covenant with my Son in consideration of naturall Love to stand seised to his use of the Lands I shall hereafter purchase the use is void 25. 27. Eliz. So if I devise the Mannor of D. by speciall name of which at that time I am not seised and after I purchase it except I make some new publication of my will my devise is void Ployd Rigdens case vide Bacon ibidem plura f. 57.58 Non refert an quis assensum praebat verbis an rebus factis Coke l. 10 f. 52. b. It mattereth not whether a man giveth his assent by words or by things themselves and Deeds Whereas the assent of an Executor is necessary before any legancy can be had for that debts are first to be paid and that the Executor must look to it at-his perill Offi. of Exec. 234. the assent consent and agreement of John Morris the Executor to the Legacy of William Taylor and Elizabeth his wife did appeare in that at the speciall instance and request of the said Morris the said William Taylor and Elizabeth his wife did release the said Legacy to the said Morris
that he had not white Acre by descent but had it by purchase for the relation to the descent was in vaine in that certainty appeared before ibidem vide Coke l. 3. Doughtys case f. 18. Oportet quod certae personae certae terrae certi status comprehendantur in declaratione usuum Coke l. 9. f. 9. a. Every declaration of uses upon Recoveries Fines c. of Lands Tenements and Hereditaments ought to be certaine for otherwise there shall be no certainty of inheritances and that certainty ought to be principally in three things in persons to whom in Lands c. of whom and in estate by whom uses shall be limited and declared and if certainty faile in any of them the declaration is insufficient Certa debet esse intentio narratio Bractton lib. 2. All declarations ought to be certaine so as the Defendant may know to what thing he ought to answer Ployd 84. a. As 3. E. 4. f. 21. A man retained in husbandry brings an action of debt against a Prioresse for his salary and declares that he was retained with her Predecessor and doth not shew what person retained him and by the better opinion the count shall abate for the incertainty for that it might be that one that had no Warrant retained him And so is it in a Writ Ployd ib. vi a. 22. E. 4. f. 47. It was granted by Parliament that Ashby should have a writ with Proclamations out of the Chancery against one Griffeth to answer for diverse Trespasses which were contained in the Act of Parliament and the Writ by award was abated because he made no mention of the Trespasses in certaine and there it varied from the Act but that was a private Act and therefore the non-recitall of it makes the Writ naught and so should the mis-recitall but the recitall of a generall act or the mis-recitall of a generall Act is not material but the Judges are bound to take notice of it without the monstrance of the party Oportet ut res certa deducatur in judicium Coke l. 5. f. 321. a. Playters Case P. brought an action of Trespasse against W. Quare clausum suum fregit pisces suos cepit without shewing the number or nature of the Fishes and it was resolved that the count should have comprehended the Fishes in certaine that the Defendant might have a certaine answer and upon which a certaine judgment might be given as 4. H. 6. n. the writ was quare piscem cepit and counts of so many Pikes in certaine and though the writ was piscem in the singular number yet good because per se est nomen collectivum in which the plurall number is comprehended and great inconvenience otherwise would ensue for unlesse the issue hath certainty with which the Jury may be charged upon such a generall incertainty if they give a false verdict they may be charged in attaint and f. 38. a. Teyes case In a fine the same thing was granted and surrendred to severall persons and of severall estates and so repugnant and erroneous for a fine is like unto a Judgment for a Scire facias lyes to execute it as of a Judgment and oportet as Bracton saith quod certa res deducatur in Judicium Ployd Manhells Case f. 10. b. If three issues bring three severall Formedonâ— he whose writ is first returned shall have the Land for by it he hath first attached the possession in the hands of the tenant and the writ is not of Record before the returne but if all the three Writs be returned on the same day they shall all abate because it is incertain by the count if the Tenant confesse the actions to whom they shall award seisin because all their titles are alike and all returned on the same day and for that incertainty the writs shall abate as 21. R. 2. Fit avowry p. l. 262. In a Replegiare against two the one avows for Damage-feasant and the other avows that he had common in the Land and tooke the beasts as a commoner Damage-feasant and by the award of the Court both the avowrie was abated and the Plaintiff recovered damages against them because every of them could not have the returne and who should be preferred and who rejected would be incertaine to the Court vide Ployd f. 84. a. b. Partridges case In some cases the count and the writ may be generall without certainty as in assizes but there the certainty must be shewen by the replication and in some cases the writ the count and the replication also may be incertaine but the certainty shall appeare by verdict As in a Quare impedit the value of the Church doth not appeare in the count nor in the replication but it shall appeare by verdict for they shal assess double damages or damages for halfe a yeare according to the value of the Church as the case requireth so in a writ of Ward the Jury shal find if the heir be married or not and shall assesse daâ—â—ges for it and yet in the count and replication no such matter appeareth So in a detinue the valew of the goods appeareth by verdict and in many other cases So as the certainty allwayes must appeare to the Court and if it be requisite to be shewen in the count then it ought not to be left out or omitted in the count as Ployd f. 85. a. In decies tantum he must shew the certainty of the sum received because he shall recover ten times more and that he cannot unlesse he shew how much it is And in Trespasse if the Defendant pleade that it is his Frank-tenement and the Plaintiff intitles himselfe by a lease for years made by him and if the Defendant will shew that he made a Feoffment and that he entered for the forfeiture he must shew the name of the Feoffees and certainty of the Feoffment for in all cases the privy ought to shew the certainty and in case of forfeiture the Lessor in the reversion is privy to it So if the heire will pleade in bar in a writ of Dower the detainer of evidences he must shew the certainty of the evidencies for he is privy to them in that he affirmeth that they appertaine to him but if he say a bag ensealed with Charters that is good without shewing the certainty of them 18. H. 8. f. 1. B. Dower And if one be bound in an obligation to serve I. S. for seven years in mandatis omnibus suis licitis he shal pretend that he did serve him lawfully without shewing in what service or in what commandement for no servant can remember all 20. E. 4.13 So a man may aver a thing to be done by Covin without shewing how the Covin was for Covin is a secret thing contrived between two or three to the prejudice of another 4. E. 6. 46. And a man may pleade that he was chosen Knight for the Shrie by the greatest number without shewing the number for the
but supposalls As in a Pormedon one claimeth by descent from I. S. or a Mortdancester as sonne and Heir of I. S. yet in another Formedon he may claime from I. D. and shall not be estopped No more shall a recitall make an Estopple for they are not materiall as 33. H. 6. 10. b. where A. reciting that he is seised in fee of the Manner of D. granteth a rent out of it to B. this shall not estoppe A. to say that he had nothing in that Mannor Finch nomotec f. 32. Neither shall counts and declarations abate so long as the matter of Action is fully shewed in the Declaration and the writ as by the Statute of 36. E. 3. c. 15. it is provided And therfore in Demurrers it is alledged that the matter contained in the count is insufficient in Law and so of a plea and accordingly in the raigne of Queen Eliz. provision is made that after demurrers the Judges shall give Judgement according to the right of the cause and matter in Law without regarding any imperfection defect or want of forme in any Writ Retorne Plaint Declaration or other pleadings or course of proceedings whatsoever which Sir Edward Coke stiles an excellent and profitable Law Coke Com. 304. b. All which are more fully contained in the late Act of 11. Mar. 1649. by which it is enacted that no judgement shall at any time or times be arrested or stayed in any Court of Record for want of any matter of forme or defect whatsoever except only for matter of substance which shall be found or shewed pulickly to the Jude or Judges sitting in the said Courts of Record to be in the declaration Plea replication or other proceedings after apparance And besides in common recoveries no formall errors shall be allowed to reverse them unlesse they be substantiall and materiall as by the statute of 23. Eliz c. 4. it is provided that for the avoiding of the danger of assurance of Land and for the advancement of common recoveryes that not any common recovery shall be avoided for any want of forme in wordes and not in matter of substance so much doth the Law respect matter of substance before matter of form circumstance Coke c. f. 40.2 From the predicaments of action and passion Idem non potest esse agens paciens 14 H. 8. 31. b. nihil agit in seipsum Arist 1. de gener no man can do an act to himselfe No man can sue himself and therfore when a man having right to Land hath the freehold cast upon him by a latter title he shal be said to be in of his ancient title because there is no body against whom he may sue but himselfe and he cannot sue himself Lit. A man cannot present himselfe to a benefice or make himselfe an Officer 13. H. 8. 32. No man can summon himsele 8 H. 6.29 And therefore if a Sheriff suffer a common recovery it is error because he cannot summon himselfe Dier 188. But when two Sheriffs are the one may summon the other with speciall direction in the Writ that the other shall summon him 14 and 15. Eliz. If a Sheriff be Conusee of a Statute he cannot execute a liberate himselfe 9 E. 4. 33. Plaintiffe and Defendant Exception and Actor and Reus are relative opposites and cannot be properly in one and the selfe same action except in some speciall cases as in a writ of detinue where garnishment is required there the Defendant is to become actor against the garnishee 3 H. 6. 18. so in a quare imâ—edit where the Defendant maketh title to have a Writ to the Bishop the defendant is become actor 20 H. 6. 29. In a Replevin upon an avowry made the avowant is become actor 3 H. 6. 19. a. 23. H. 6. 45. a. 12. E. 4. 10. a. So in a Quod deforceat the demandant or Plaintiff shall defend his estate against such recovery as shall be pleaded against him and become defendant and may vouch ac si tenens esset in priori brevi by the statute of W. 1. A Sheriff who is demandant may execute all processe till it come to the Venire facias otherwise if he be Tenant 20. E. 4. 7. A Sheriff is Plaintiffe for he may take pledges himselfe and execute a Replevin against himselfe 5. H. 7. 2. The Sheriff is in seisin of a Baly-wick of a liberty he shall command himselfe as Bayliff of that liberty to execute that processe 8 E. 3. 21. F. B. N. f. 4. E. There is a Writ of prohibition in the Register directed to the Sheriff to inhibit himselfe that he hold not plea in the county upon a sorreine Plea pleaded or the Mise joyned to be tried by grand assise Actori incumbit onus probandi stabilitur praesumptio donec probetur in contrarium the burden of proving lieth on the Plaintiff and the presumption is confirmed untill it be proved to the contrary Cok. l. 4. f. 70. There is a bargainor and a bargaince if this bargainor contend to avoid the bargaine by reason of the non enrolement within six months he must make manifest proofe thereof or else it will be presumed that it was inroled within the six months omnia praesumantur legitime facta donec probentur in contrarium Coke com f. 233. b. As whereas the feoffee giveth or granteth to the feoffor the deed pol such grant is good and the property of the deed shall appertaine to the Feoffor and when the feoffor hath the deed in his hands and pleadeth it in Court it shall be rather intended that the feoffor commeth unto it by lawfull meanes then by a tortious meane For all things are presumed to be lawfully done untill they may be proved to the contrary A. and B. Tenents in common of a Mannor A. purchaseth a frank tenement mixt with the demesne Lands which were not certainly knowne B. brings a writ de partitione facienda of the Mannor onely and judgement given that partitio fieret and a Writ to the Sheriff accordingly It is held by the Justices that A. must shew the bounds of the franktenement purchased for the Jury shall be discharged if in conscience they make partition de tanto quanto praesumitur dignoscitur per praesumptiones verisimilia of so much as shall be presumed and knowne by presumptions and likelihoods Dier f. 266. Pendente lite nihil innovetur Let nothing be innovated hanging the suit Coke com 344. b. if hanging the quare impedit against the Ordinary for refusing his Clark and before the Church was full the Plaintiff brought a quare impedit against the Bishop and hanging the suit the Bishop admitted and instituted a Clark at the presentation of another if judgement be given for the patron against the Bishop the patron shall have a writ to the Bishop and remove the incumbent that came in pendente lite by usurpation for hanging the sute nothing is to be innovated Qui semel actionem
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
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
house 11. H 4. 32. From the Forme MVtata forma prope interimitur substantia rei Ulpian reg I. C. Doderidge f. 132. 133. The English Lawyer The forme being changed the substance and essence of the thing is destroyed If a man take my Barley and make Mault thereof it cannot be seised by the former owner and yet neither quantity nor outward forme is lost but it is become a thing of another nature and use because the inward forme upon which depended the use is changed So if a man of any peece of cloth which he had to keep containing twenty yeards in one whole peece will cut the same into twenty severall yeards and peeces the matter nor the quantity is not changed and yet if hee will restore the same peeces I am not bound to receive them So if a man possessed of twenty packs of Wooll by his last will deviseth all the said Wooll to I. S. and after the Testator converteth all the said Wooll into cloth and dieth possessed of the same cloth I. S. the devisee shall not have by law the cloth made of that Wooll for that the forme of the Wooll is changed though the matter remaine and is turned to a thing of another nature and the turning it into cloath is a Countermand of the Testators Will. So if a man have a dwelling house whereunto there is a Common of Estovers belonging if this house by casualty of fire or tempest be burnt or blowen downe or taken downe and a new be built in another place neere or in another forme the Common of Estovers is lost and not to be used in this new house but if the first house were not wholy pulled downe but repaired or another new house be built upon the same foundation and in the same forme with the former the Common of Estovers remaineth with the new house for that in Judgement of Law is the same house for the building on the same foundation is but a reparation ibidem So 22. H. 6. 28 It is not sufficient in a bar of a Writ of Wast of an house to say that the Defendant hath built a new house in liew of that which is fallen but the Defendant must say that it is as much in length and as much in latitude as the other was or at the least he must say that it is as profitable but when an house is ruinous at the making of the lease and after falleth and the Defendant buildeth a new it is not necessary that he make another house of equall longitude or latitude Fulb. l. 2. f. 51. From the end SApiens incipit a fine Coke l. 10 f. 25. b. Et quod primum est in intentione ultimum est in executione Suttons Hospitall case A wise man beginneth from the end and that which is first in intentions is last in Execution The pious and charitable end of Sutton was the grand motive to the King to give to him meanes by creation of a capeable body politick by way of incorporation to have a perpetuall succession to perfect and perpetuate so pious and charitable a worke Ibidem Finis rei attendendus est fines mandatorum domini regis per rescripta sua deligenter sunt observandi for the end in all humane actions is of singular regard for that all things attempted by wise men have their end and the virtue of the thing is measured by the end Doder Coke l. 5. f. 87. a. In Blunfeilds case The end and fruite of a suit is satisfaction but the execution of the body is no satisfaction but a gage for the debt 4. H. 7. 8. 33. H. 6. 47. And therefore after his death he shall resort to another execution for it should be mischeivous to the Plaintiff to lose his debt without any default in him neither is the execution of the body a valuable execution and therefore after his death he shall have a new execution untill he hath had a valueable execution out of his Lands and Goods which in Law and Equity ought to be subject to the payment of his debts but where no other satisfaction is to be had thereby Qui non habet in aere luat in corpore ne quid peccetur impune Hob. Rep. f. 133. He who hath no mony let him be punished in body least he should offend without punishment vide ibïdem Exitus acta probat finis non pugna coronat Dod. E. Law◠f. 143. Coke l. 9. f. 82. b. Finis coronat opus the Law favoureth the consummation and prefection of things for the end crowneth the worke and doth all as the end of an Attornment is to perfect a grant which the Law therfore favoureth according to the resolution of the Bookes 12. E. 4. 3. 4. where it is holden that Tenant in taile Infant or Feme-covert may be bound by an Attornment gratis in pais and in 18. H. 8. Fortescue holdeth that if one granteth the service of his Tenant which is within age who within age attorneth shall he after in an avowry be admitted to say that he was within age at the time of the Attornement I say no for he did nothing but that which he ought to doe Ibidem Ployd f. 18 a. The scope and end of every matter is principally to be considered in all things and when the scope and end of the matter is satisfied then the end of the matter is accomplished as here in Renigers case as the end of the Statute of 7. E. 6. c. 2. is that the King shall have his subsidy and if the agreement be here sufficient to give him the subsidy and to assure the King of it then the end of the Statute is performed and so here it is for the agreement authoriseth the King to weigh the Woad by his collector at what time he shall please and when that is done the King hath title to action and so is in surety So 33. E. 3. Joynder in aide 10. Vouchee cometh into the Coutt to be viewed and being viewed is awarded of full age yet he shall not be driven to answer till he come in to the same intent by another Processe So 19. E. 4 3. The Vouchee upon a Grand Cape ad valentiam shall not lose the Land though he cannot save his default for the Processe is onely to this end to have him to appeare So 51. Ass Pl. 2. A man is warned by writ to answer to a matter he shall not be driven to answer to any other matter then is contained in that writ though the King be a party As if by office it be found that Lands in cheif descended to I. S. a foole naturall and that A. occupieth them whereby a Scire facias goeth out against A. to answer why the Lands should not be seised into the Kings hands for the ideacy of I. S. A cometh in and pleadeth that I. S. when he was of perfect memory made a release to one B. who infeoffed A. this is good enough without
in possession by the antient Law the entry of the disseisor for his negligence had beeâ— taken away which now is onely by descent many aâ—â— continuall are the mutations of the Law according to the changes of the time For the rule and ground holdeth quod perpetua lex est nullam begem humanam ac positivam esse perpetuam that it is a perpetuall Law that no humane or positive Law is perpetuall Bac. Max. f. 70. Tempus edax rerum Coke l. 3. f. 21. A. maketh a lease for years to B. and when the Terme is ended the remainder to C. the reversion is good for it is certaine enough that every terme shall end for time is the consumer and divourer of things Distingue tempora concordabis leges the times being distinguished the Law will be reconciled Coke l. 9. f. 16. b. The King by the Statute de bigammis 4. E. 1. when the heire was of full age had nothing but primam seisinam capiendo exitum the profits of the Land in effect for one yeare but could not endow the Feme because after the Heire was of age he was not guardian and for that reason he could not endow the Feme at the common Law no more then guardian in chivalry might who though after the Heir was of full age did hold the Land further for the value of the marriage no Writ of dower did lye against him because he was not guardian yet afterwards by the Statute de praerogativa regis 17. E. 2. the King had power to endow the Feme although the Heire were of full age si vidua illae voluerint so as the Statute leaveth it to the election of the Feme whether shee will be endowed in the Chancery or at the common Law so as by distinguishing the times the difference of those Laws are apparently agreed and reconciled Omnia tempus habent habenâ— sua tempora tempus Coke l. 10. f. 82. a. All things are subject to time and time it self hath also its times as by the Statute of 34 H. 8. three severall Times ought to concurr in a devise whereby the King may have the value of the third part the first is tempus habendi every person having the 2d is tempus tenendi holding of the King the third is tempus disponendi may â—ive and dispose as if a man be seised of one acroâ—â—f Land in fee in chiefe by Knights service and of two other acres in fee holden in socage and the Tenant infeoffe his youngest Son of the acre holden in chief and of one of the other acres to have to him and his heirs and afterwards purchaseth Lands holden in socage he may devise all his Lands newly purchased holden in sooage because he had no Lands holden of Knights service in Capite at the time of the devise for the acts have made a conjunction of the Lands which the Tenant holdeth in socage with the Land which he holdeth of the King by Knights service in Capite so as when the Tenant hath conveyed the Land holden in Capite to his youngest Son now when he made his Will of the Lands so newly purchased he had no Lands holden of the King in Capite at the time of the devise and the Statute restraineth only those Lands in socage which he had at the time of having of the Lands holden in Capite vide ibidem plura in Loveys case For Judicis officium est ut res ita tempora rerum Quaerere quaesitâ— tempore tutus eris A Judges part it is to ponder things with time And by the square of time sure Judgment so to finde Coke Com. f. 202. a. If a rent be granted payable at a certaine day and if it be behinde and demanded that the Grantee shall distraine for it in this case the Grantee needeth not to demand it at the day but if he demand it at any time after the day he shall distraine for it for the Grantee hath election in this case to demand it when he will to inable him to distraine But upon a Lease for years reserving a rent upon condition that if the rent be not paid at Michaelmas or within one and twenty dayes after that then he may re-enter the tenant is not bound to pay the rent or tender the mony before the last instant of the last day but if he do not then the Lessor may re-enter and have the Land and the rent also but if the Lessor be not at the time there to receive the rent he cannot re-enter though he demand the rent before Brook Intender 41. unlesse before the Lessee meets the Lessor upon the Land and tender the Rent on the same day Coke Com. f. 22. a. Ployd f. 392. 393. a. Where a thing is referred to a time which declareth certainly if it be mistaken all shall be void as Trin. 7. E. 3. 26. One bringeth a Writ and reciteth that it is contained in the Articles made in the time of Edward the second and declared further according to the statute and the writ was abated by award for that those Articles articuli super chartas C. 9. were made in the time of Edward the first So Tr. 18. E. 3. f. 25. A statute Merchant was made to be paid in the sixteenth yeare of E. 3. and the party sued execution and the Writ supposed the sum to be paid in the fourteenth yeare of E. 3. and by the suit the Feoffee was outed whereupon he sued a Writ of error in the Kings Bench and the writ was abated and it was said that the time declared certainty for it might be that there were two statutes payable at diverse severall daies and therefore the day of payment was materiall ibidem So if a defeasance be made of a statute which reciteth it to be made the tenth day of May where it beareth date the first day of May the defeasance is void for the misprision of the time for the law saith that it may be that there was two statutes the one bearing date the first day and the other the tenth day vide ibidem plura in the Earle of Leicesters case A loco from the place LOcus pro solutione reditus aut pecuniae secundum conditionem dimissionis aut obligationis est stricte observandus Coke l. 4. f. 73. a. in Burchers case The place for the payment of money or rent according to the condition of a Lease or obligation is strictly to be observed As if a common person maketh a Lease of Lands in R. reserving a rent to be generally paid at such a feast upon condition of re-entry if it be not then paid the demand must be upon the land for the land is the debtor and therfore that is the place of demand appointed by the law and if there be an house upon the land he must demand the rent at the house and not at the back doore but at the fore doore because the demand must be made at the most notorious
part of my father but oâ—herwise the release is good without any averrment for the thing was certainly expressed by the first woâ—ds in which case other words were needlesse and superfluous and in vaine were it to expresse that by more words which may be expressed by fewer and 30. Ass Pl. 8. Lands given to two uni eorum diutius viventi and to the longer liver of them they make partition and one of them dyeth the Lessor shall have againe the moyety of him that dyed for uni eorum diutius viventi are but idle words Omnis propositio est aut verae aut falsa every proposition is either true or false truth as it is a congruity of an entity with the intellect instrumentally appertaineth to Logick because it directeth the minde to apprehend the truth of things and is opposite to falsity contradictorie especially in propositions for all propositions are either true or false Quae ad idem secundum idem similiter eodem tempore nunquam possunâ— simul esse verae which to the same according to the same after the same manner and in the same time never can be both true Fucatus erroâ—â—uda veritate in multis est prohabilior sepenumero multis rationibus vertiatem vincit Arist Coke l. 2. f. 72. Painted error in many things seemeth more probable then truth and oftentimes with many reasons overcometh the truth therefore hath the Law a great reâ—pect to verity and requireth that it be acknowledged and confessed in all actions under the penalty of a mercement and accordingly if the tenant doth not render the Land to the demandant as he was commanded by the Writ but persistâ—th in defence of it till judgement be given against him by the Law he is to be amerced Coke l. 5. f. 49. Va gâ—ans case And therefore one of the chiefest things which the Law requireth in counts is verity and if it appeare to the Court that falsity is uttered in lieu of verity the party which sheweth it hath annoyed and confounded himselfe Ployd f. 84. b. And therefore if a man bring an Action of debt for two payments at two dayes where one of them is not come by the shewing of the Plaintiff himself he hath by it abated his own writ because that he hath shown a falsity T. 9. H. 7. 3. And so in our case he hath grounded his matter upon a Statute by him recited where it appeareth judicially that there was no such Statute made at that time and so he hath abated his count by his own shewing ibidem Partridges case and sâ— p. 20. H. 6. f. 30. A writ of Champerty was brought which was not warranted by any Statute and there Newton said that if the party cannot shew unto them any Statute by which it was warranted that they will award that the writ shall abate And therefore abundance and reciting more then needeth shall many times hurt the party as T. 20. H. 6. f. 42. A man brought a writ for forging of false deeds and the writ was diversa facta munimenta and he counted but for one onely and by the assent of all the Justices it was awarded that the writ shall abate because the writ was for diverse Deeds and he counted but for one vide ibidem If the Writ vary from the Obligation or other specialty in name or sur-name or such like the Writ shall abate 11. E. 4. 2. As in an action of debt for twenty pound and he declareth but for ten pound both shall abate 8. E. 4. 2. An Essoine or protection varying from the originall Writ in the quantity of the tenancy or the name of the party shall be quashed 4. Ass pl. 1. 2. H. 6. 3. A Chancellors servant bringing a Writ of priviledge varying from the originall Writ as if the originall be a Writ of Trespasse and the priviledge in a Plea of debt or the originall be in an action of debt of 44 l. and the Writ in a Plea of debt 42 l. it shall be disallowed 7. H. 6. 22. Lex non requirit verificari quod apparet curiae Coke l. 9. f. 54. b. The Law doth not require that to be verified which appeareth to the Court though the Law of England be more precise in the forme of pleading then any other forraine Law as well in counts as bars wherein averrements and offers of proofes are commonly concluded as in counts the course of declaration is in the beginning of every action to offer their witnesses and therefore the conclusion is allwayes inde producit sectam which secta or suite in Law language is nothing but witnesses to prove his action as Mr. Selden upon Fortescue accurately observeth c. 21. f. 23. And so also in bars the Law doth also require that all affirmative pleadings in defence to the intent the issue and point which cometh to be tryed might be evident and cleere to the Jury should be averred that is an offâ—r made of proofes Yet Qâ—od constat clare non debet verificari that which plainly appeareth ought not to be verified Coke l. 9. f. 54. b. in Batens case As if an infant bring an assize of Mortdancester it is needlesse to aver that he is within the time of limitation for it appeareth by the infancy of the Plaintiff and 46. E. 3. In Trespasse of taking monies it is needlesse to shew the value because it appeareth vide ibidem plura Floyd f. 87. b. It is pleaded that the Lessee did surrender to the Grantee of the reversion it is needlesse to pleade an atturnement for a surrender is an atturnement and more H. 13. H. 7. 11. by Keble vide ibidem plura in Partridges case Et manifesta probatione non indigent Coke l. 7. f. 40. a. b. M nifest things need no proofe as if the Father tenant by Knights service enfeoff his Son and Heire apparent within age it needeth not to aver it to be collusion for it is apparent Wimbich case Ployd 27. H 8. Dacres case So if I covenant to stand seised to my Wife Son or Cosin it is good to raise an use without expresse words of consideration for sufficient consideration and his Fatherly love appeareth vide ibidem plura Non refert quid ex aequipollentibus siâ—t it is a rule of Law and reason It mattereth not what is done by equipollent or words which amount to such a value Coke l. 5. 122 a Longs case It was an exception taken to an enditement in that case that they gave him unum vulnus mortale one mortal wound whereas it should have been plagam one mortall stroke but it was disallowed by the whole Court and said that these words were Synonimas and signified the same though that plaga is the most usuall word in an Enditement f. 121. vide ibidem plura Coke l. 5. f. 89 a Frostes case A Capias Vtlegatum was brought to the Sheriffs of the city of London against B. who was in custody of
very commendable Ibidem Naturae vis maxima and Catiline said Natura bis maxima The force of nature is very great or more then superlatively great Ployd 309. b. and therefore all things proceeding from nature are not onely respected in Philosophy but also in our law and are of efficacy in our law and taken for a consideration sufficient Ployd 305. and accordingly in Sharingtons case f. 309. It was adjudged that the affection of Andrew Bainton for the provision to his heires males which he had engendred and the affection that he had that the land should remaine in his blood and name of Bainton and the brotherly love that he bore to his brothers were causes sufficient to make uses in the land vide ib dem So consideration of marriage and brotherly love are greater then mâ—ny or matter of recompence to raise an use without transmutation of possession because every one of them is meerely founded on the law of nature ibidem 3 9. a. If a man seised in fee of Lands holden of I. S. by fealty and ten pounds of rent and he giveth it in frank marriage to one with his daughter the father shall pay the ten pound yearely untill the fourth degree is passed and shall have nothing of the Donees for it because it was given to his daughter in marriage for her advancement and for that reason the charge is translated from the daughter to the father and the consideration of it is nature Ib. f. 305. a. If I make a contract with another that if he will take my daughter to wife that I wil give him twenty pound if he take her to wife he shall have action of debt for the twenty pound in our Law 22. E. 3. Ass P. 70. and yet I have nothing by it and if a man hath not regard to nature it shall be nudum pactum Ibid. Yet the Law hath such respect to nature and conjunction of blood as in diverse cases it matcheth necessity of blood with the consideration of profit as the sonne may maintaine his father and one brother another 19. E. 4. 5. and Brothers and Cosins shall not wage Battaile in a Writ of Right The statute which maketh it felony to receive or give meat to one which committeth felony he knowing it extendeth not to a woman that receiveth and giveth meat and drink to her husband in such case Ployd Dyer f. 300. A feoffment to the use of himselfe and after his decease to the use of Alice which he intended to marry untill the issue which he doth beget of her shall be of the age of 21. yeares and after the son commeth to such an age then to the use of his wife during her widdow hood the husband dieth without issue it was adjudged the wife shall hold the fee it being by way of use otherwise it had been by estate executed If my brother hath a suit against my Cosin and Nephew I may maintaine the cause of my Cosin though my brother be neerer 4. H. 6. 17. 14. H. 7. 2. If a man menace me that he will imprison or hurt my father or child if I make him not such an obligation and I make it I shall avoid this by duresse as if he had menaced me 15. H. 6. 17. and 21. E. 4. 13. Exception Yet a consideration of blood in a personall contract as to give money is not good Lex respicit naturae ordinem Coke com 197. a. b. The law will not suffer any one to demand any thing contrary to nature and reason As a tenant in common may have an assise for the moiety of twenty shillings and the moiety of a pound of Pepper but for a Hawk and an Horse albeit they be tenants in common they shall joyne in an assise for the law will not permit any one to make his plaint in an assise contrary to the order of nature and which by nature he cannot recover as the moiety of an horse or any other entire thing for that were a vain thing lex neminem cogit ad vana inutilia and the Law compelleth none to vaine and unprofitable things Coke com f. 9. 2. a. The law respecteth the order and course of nature as if the tenant hold by a rose or a Bushell of Roses to pay at the feast of Saint Iohn Baptist because they are flowers not to be kept therefore are they to be delivered at the time of growing and the Lord may demur to distraine till that time neither is the tenant driven by law artificially to preserve Roses for the law in these cases respecteth nature and the course of the yeare For as Littleton here saith ars imitatur naturam art doth imitate nature Ployd f. 540. b. when diverse things are done at one and the same instant and the one cannot take effect without the other the common law shal adjudge it to precede it to follow which aptly ought to precede or follow as if a disseisor maketh a Lease for yeares and then hee and the disseisee release by deed to tenant for yeares there the law shall adjudge the release of the disseisee first to take effect and then the release of the disseisor for there is no privity or estate in the Lessee upon which the release of the disseisor may enure if the release of the disseisee doth not first inure So if tenant for life maketh a Lease for yeares and he and the other in the reversion in fee confirmeth the estate of tenant for years to have and to hold to him and his heires the estate of him for life shall passe first and then he in the remainder vide ibidem Paramors case Sicut natura in suis operationibus non facit saltum ita nec lex Arist 9. de motu animalium Coke com 238. b. as nature in her operations maketh no skips so also doth not the law as the writ de ingressu super discesinam is upon a disseisin made to the demandant or some of his Ancestors of which there are four kinds the first is against the disseisor upon a disseisin done to himselfe and this is called a writ of entrie of the nature of an assise sur disseisin en le pâ—r when the heire by descent is in the per by his Ancestor or when the disseisor maketh a Feoffment in fee gift in taile or lease for life the third is entry suâ— disseisin en le per cui as where A. being the feoffee of D. the disseisor maketh a feoffment over to B. there the disseisee shall have a Writ of entry sur disseisin of lands c. in which â— had no entry but by A. to whom D. demised the same who unjustly and without judgment disseised them These are degrees which are to be observed or else the writ is abateable for as nature so the law doth nothing by skips but by degrees The fourth is the entry sur disseisin in the post which lyeth when after the
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
husbands because it is possible for the husband to have got it and whose soever the Cow is his is the Calfe also Swinwood f. 18. And if the issue be borne within a month or day after marriage between parties of a full lawfull age the child is legitimate Coke Com. f. 244. a. And in the legall understanding of the common Law he is said to be haeres who is ex justis nuptijs procreatus borne of lawful matrimony haeres legitimus est quem nuptiae demonstrant and he is a lawfull heire whom marriage demonstrated so to be Coke ibidem f. 7. b. Coke l. 7. f. 44. a. One who is engendred in avowtry during the coverture is a mulier by the temporall and common Law though a bastard by the spirituall Law Jus sanguinis quod in legitimis successionibus spectatur ipso nativitatis tempore quaesitum est Reg. I. C. The right of blood which is regarded in lawfull successions or inheritances is found in the very time of the nativity and therefore jus primogeniturae the tight of the elder Brother-ship in the cause of inheritance is principally to be respected because it is in the eldest Son and his issue per modum substantiae and that which is in any person per modum substantiae is inseperable from him and cannot be extended to any other besides it is against the Laws of proximity of degrees that those which are in a remote degree should be preferred before those of the next degree and therefore in all common weales for the most part proximity of blood hath been preferred of which we have a notable example confirmed by the act of Lycurgus the judicious Law-giver as when Eunonus King of the Lacedaenonians had two Sons Polydectes the elder and Lycurgus the younger and Polydectes deceased leaving no Son living at the time of his death the Scepter of the Kingdome was seated in the hands of Lycurgus afterwards when Polydectes Widdow had brought forth a Son Lycurgus did willingly and peaceably yeeld to him the Scepter which act of Lycurgus agreeth fully with our Laws whereby it is ruled that if a man have a Son and Daughter and the Son purchaseth Land and dyeth the Daughter entreth and after the Father begetteth another Son of the same Wife this Son shall have the Land 19. H. 6. b and is also ratified by diverse examples in the successions of our Kings I will instance onely in one and the most illustrious one King Edward the third being deceased Richard the second the Son of his eldest Son obtained the Kingdome and was preferred before John Edmund and Thomas the sons of the same King wheras any of them was more worthy and fit for the Scepter yet is it granted that in succession of regall dignity jus primogeniturae is not constantly observed because in that case the good of the common-weale and commodity of the people is politically to be respected and as the Civilians the good estate of the Kingdome and Subjects is more to be heeded quam sangninis series then the pedigree of blood and so Solomon the younger Brother was advanced before the elder by the hand of David his Father and Roboam preferred Abias his younger Son yet this must be done cautiously and with a good conscience and intention and probably for the utility of the State otherwise it will neither please God nor man yet in the disposing of private estates the Law of Primogeniture is more strictly to be observed because by it confusion and dissention is avoyded which from the contrary doth proceed as is intimated by Coke l. 3. f. 40. b. Wherein our Law excelleth which preferreth the elder Brother and his issue before the younger Brother and his issue in case of descent and that jure sanguinis by his birth right as he is most worthy of blood and therefore as Coke in his com f. 14. a. The male and all descendant from him shall inherit before the female and among the males the eldest Brother and his posterity shall inherit Lands in Fee-simple as heire before any younger Brother or any descending from him whereas by the Civill Law the inheritance is divided among the males Lutleton l. 1. c. 1. There be three Brothers and the middle Brother purchaseth Lands in Fee simple and dyeth without issue the elder Brother shall have the Land by descent so also it is if the youngest purchaseth Lands in Fee and dyeth without issue the eldest shall have it jure sanguinis because he is the worthiest of blood Little So if a man enfeoffe another upon condition and the condition is broken and then the Feoffor dyeth without issue his wife privement ensaint and the Brother of the Feoffor enter for the condition broken and after a Son is borne he shall avoid the possession of the Uncle and may lawfully claime the inheritance 9. H. 7. 25. And 9. H. 8. 23. It is said that after two or more descents the heire afterwards born claiming by descent may enter into Land but he shall not have a Writ of account for the meane profits And though Littleton in defence of the custome of Gavelkind by which the issues may equally inherit alledgeth the reason that every Son is as great a Gentleman as the eldest Son is yet as Sr. Edward Coke com a. f. 14. saith Gentry and arms doth not descend to all the brethren alike for the eldest jure primogeniturae shall beare as a badg of his birth-right his Fathers armes without any difference because he is more worthy of blood but all the younger brethren shall give severall differences additio probat minoritatem and the addition demonstrateth and proveth the minority of the issue but by the Statute of 31. H. 8. A great part of Rent is made descendible to the eldest Son according to the course of the common Law for that by the meanes of that custome diverse antient and great families after a few descents came to very little or nothing according to the simile of the Poet In plures quoties rivos deducitur amnis Fit minor ac unda deficiente perit A Flood deduced into little streames Coke ibid. Soone groweth lesse and falleth by that meanes But in cases of purchase it is otherwise a. 15. E. 4. If a man devise land to a man and his heire and the devisee dieth having issue a daughter his wife privement enseint with a son who is afterwards borne the daughter shall enjoy the Land in perpetuum And 9. H. 6. 23. It is said that if the remainder cannot vest at any time when it falleth it shall not vest in him is borne afterwards where another hath entred before 2. Eliz. 190. Pl. 18. If a lease for life be made the remainder to the right heires of I. S. and I. S. is then alive the inheritance passeth presently out of the Lessor but cannot vest in the heire of I. S. for then living his father he is not in rerum natura for non
Coke com f. 25. a. A devise cannot direct an inheritance to descend contrary to the rules of the Common Law as if a man devise Lands to one and the heires males of his body and hath issue a Daughter who hath issue a Son the Son shall not inherit as heire male because he must convey the descent from the heires males for though a devise may create an inheritance by other words then a gift can yet can it not direct an inheritance to descend contrary to the rule of Law and no intent of the devisor appeareth that the Son of the Daughter should against the rule of the Law inherit vide Ployd f. 414. b. So if a gift be made to a man and the heirs females of his hody and hath issue a Son who hath issue a Daughter this Daughter shall never inherit vide ibidem plura Prâ—ximus sum egomet mihi Ployd f. 545 a. It is the naturall order to karve himselfe before he karve another and charity beginneth at home And therefore in legacies it is reason that the Executors shall have preferment of satisfaction before others and the Law maketh allowance to them before any others because as Lit. faith they represent the person of the Testator and Coke com f. 209. b. The Executors doe more represent the person of the Testator then the heire doth to the Ancestor for though the Executor be not named in Mortgage yet the Law appointeth him to receive the mony but so doth not the Law appoint the heire to receive the mony unlesse he be named and therefore if the Obligee maketh the Obligor his Executor it is a release in Law and if the Obligor make the Obligee his Executor the Action is gone for they are as it were the same person in law whence the law maketh allowance to them before any other For if a man devise to A. 20 l. and to B. 20 l. and to C. 20 l. and maketh his executor and dieth having goods only to the value of 20 l. now it is in the election of the executor to which of those three he will pay the 20 l. and if he pay it to one the other cannot contradict it neither hath he any remedy for his legacy so by the same reason if one of the three be made executor to the testator the law saith he may and will retaine the 20 l. in satisfaction of his legacy and the law alloweth of it for it is reason that he be next to himselfe and have regard to himselfe before another And this is the reason of the case in 12. H. 4. f. 21. where in debt upon an obligation against the heir he pleaded that the Plaintiff was executor to Lancestor which deed he put before them and administred certaine goods and Chattels to the value of the debt and more and retained the same summe with him in the name of payment and demanded judgement if Action And Hull said that if he did not retaine the same to himselfe and might have retained it and did not he shall be barred for a man is bound to be next to himself and this was the opinion of some of them for which he pleaded there that he adminstred no goods after the death of the Testator vide ibidem plura in Paramers case And for the same reason doth the law in all reciprocall acts respect mutuall recompence and consideration for if there be no consideration why should they be made Doct. and St. and it is supposed there was error in such Acts because there is no consideration of profit for every one is next unto himselfe ad suum lucrum satis sapit is sufficiently wise to project his owne emolument And therefore have considerations a great effect in lawes and customes for consideration is the beginning of all customes the grounds of all uses the reason of all rights and the causes of all duties For without consideration nothing is wrought by any conveyance no interest transferred no right removed nor duty accrued and no custome hath continuance As if the Lord of the Manner prescribe that every one who passeth the highway which lyeth in his Mannor shall pay 12. d. to him for his passage this is void and not upon good consideration but if he prescribe to have a penny of every one that passeth such a Bridge which the Lord of the Mannor doth use to repaire this is a good prescription Calthrope Copy-holds f. 35. and 36. And therefore is consideration described by Dier f 336. to be the cause or occasion of a meritorious recompence either in deed or law for all contracts and bargaines have quid pro quo contractus est quasi actus contra actum and must have quid pro quo Coke com f. 47. b. And so it is in exchanges annuities pro consilio impendendo or service rents services and tenures for dâ—meanes of Lands as Frank-almoigne Homage-auncestrell for warranty and acquittall commons for cause of vicinage or service Devise of a woman causa matrimonij praelocuti so the manner of a gift to doe such a thing or to make such a thing Considerations are either executory or executed and in considerations executory the recompence failing the Feoffment or grant ceaseth as a feoffment to instruct the feoffor in one mistery or Art if the Feoffor dieth before instruction the heir shall re-enter 21. E. 3. Grant of an Office and for the executing it a fee if the office be determined the fee is determined M. 5. E. 4. 7. and 20. E. 4. If a woman give land causa matrimonii prelocuti and he will not marry her she shall have a writ to recover the land Ployd f. 58. a. If a man make a lease for yeares rendring rent the lessee needeth not pay any rent if the Lessor had nothing in the land at the time of the lease because he had not quid pro quo Coke com f. 47. b. If I grant an annuity pro consilio impendendo if he wil not give me councell I must stay my annuity Ployd 144. b. An usuall and accustomed attendance of a corodian upon the Soveraigne of a monastery upon festivall daies determineth the corodie it being a reward for attendance Exchanges not executed by each party at the first is defeasible 9. H. 4. A portion of rithes granted by indenture for ever without cavillation or contradiction and an annuity granted for the aforesaid portion So to have a way for my life and I grant an annuity of 20 s. without limitation the annuity shall endure but during my life Dier 336. 337. Where no consideration is expressed there the consideration may be averred Dier 146. Vellies case A rehersall of a consideration past whether it be true or false shall not dissolve the gift as because he served me in the Wars beyond the Seas although it be false it is not materiall Bracton in modis donationum and so in the case of the King Dier f. 337. If A. enfeoff B.
remotissime vana which by the intendement of the Law never cometh into act Coke l. 2. f. 5. 2. n. b. in Sir Hugh Chomleys case vide ibidem plura And hereby the way may pertinently be observed that a possibility cannot be released as if before judgement the Plaintiff in an action of debt releaseth to the baile in the Kings Bench all demands and after judgement is given this shall not bar thee to have execution against the baile because at the time of the release he had but a meere possibility and neither jus in re or jus ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute release to the Conusor all his right in the Land yet afterward he may sue execution for he hath no right to the Land till execution but onely aâ— possibility and so have I known it adjudged Coke com f. 265. b. So if A. grant to B. that if he doe such an act he shall have an annuity of twenty pounds during his life before the Act done he cannot release the annuity Coke l. 1. in Albanys case Lex semper dabit remedium the law so favoreth right that it will suffer things against the principles of Law rather then a man to be without his remedy As a man who is outlawed may bring an action to reverse it an outlawry there is no Plea 4. H. 7. 40. The Tenant shall have a replevin against the Lord that did wrongfully distraine though the beasts be come back to himself because he can have no action of trespasse against him for that prisall and shall recover damages for the tortious prisall F. n. b. f. 69. H. A man after judgement is passed against him shall plead against the King a Charter of pardon or any such thing done in the meane betwixt the verdict and the judgement because against the King he can have no Audita querela 11. H. 7.10 otherwise it is against a common person And therefore is it a principle in Law cuicumque aliquis quid concedit concedere videtur id sine quo res ipsa esse non potest Coke l. 11. f. 52. a. Which Ploydon thus expresseth that it is held as a maxime in 2. R. 2. in trespasse that if any man hath interest to any thing by the grant and assent of another and the party who hath such interest cannot have the principall thing without doing the other thing that he may doe the said other thing and justify it because it is a meanes to come to his profit for there it is holden That if one grant to me all his Trees growing in his Woods I may cut them down and carry them through all his Land and though his Grasse be spoiled with the carriage he shall not have a Writ of trespasse of it for Trees are such things that if they be not carryed by Carts he cannot have them nor make his profit of them But if one sell all his Fish in his Pond and the Vendee dig a trench so as the water may run out that by such meanes he may take the Fish an action of trespasse will lye against the Vendee because he might take the Fish by Nets or other Engines but if there had been no other meanes to take them it had been otherwise and to come to the banks to fish he may well justify it for without it he cannot take them by any meanes so as a man shall alwayes justify the necessary circumstance where he hath title to the principall thing Ployd f. 15. 16. a. vide ibidem plura in Renigers case So when a Lessor in the Lease except the Trees and after hath an intention to sell them the Law giveth to him and to those who will buy them power as incident to the exception to enter and shew the Trees to those who will have them for without entry they cannot view and without view they cannot buy Coke l. 11. f 52. in Lisords case So 19. H. 6.29 A man seised of a mese in a Burrough c. devisable deviseth it to his wife in taile and that if his wife dye without issue that his Executor may sell it and it dispose for his soule in this case the Executor may by the Law enter into the house to see whether it be well repaired or no to the intent to know at what valew he may sell the reversion And the Law giveth power to him who will repaire a Bridge to enter in the Land and to him who hath a Conduit within the Land of another to enter into the Land for it to mend as cause shall require as it is resolved in 9. E. 4.35 Coke ibidem vide plura And Coke l. 5. f. 12. a. If a man hath Mines hidden within his Land and leaseth his Lands and all his Mines in it there the Lessor may dig for them for quando aliquis quid concedit c. and this accordeth with 9. E. 4.8 that if a man lease his Land to another in which there is a Mine to wit an hidden Mine he cannot dig for it and if he doe it is wast but if he lease his Lands and all the Mines in it it is otherwise for the reason aforesaid vide ibidem plura in Saunders case If tenant at will soweth Corne on the ground and the Lessor out him he shall have free entry egresse and regresse to carry it away for when the Law giveth any thing to any one it giveth implicitly whatsoever is necessary for the taking and enjoying of the same and the Law driveth him not to an action for the Corne but giveth him a speedy remedy to enter into the Land and to take and carry it away and compelleth not him to carry it at one time or to carry it before it be ready to be carryed and if the Lessee be disturbed of this way the Law doth give unto him he shal have his action upon the case and recover his damages for whensoever the Law giveth any thing it giveth a remedy for the same Coke com f. 56. a. If there be Lord Mesne and Tenant and the Lord purchaseth the tenancy in fee the mesnalty is extinct but whereas the tenant held of the meane by five shillings and the mesne of the Lord by twelve pence so as he hath more in advantage by foure shillings he shall have the foure shillings as a rent-seck yearly of the Lord and yet he shall distraine for it for seeing the mesnalty is extinct the Law reserveth the distresse to the rent for quando lex aliquid concedit c. And therefore if a man maketh a Lease for life reserving a rent and bindeth himselfe in a Statute and hath the rent extended and delivered unto him he shall distraine for the rent because it cometh to him by course of Law Multa constituuntur in lege ne curia Domini Regis deficeret in Justitia
it shall be apportioned vide ibidem plura If a man be bound to appeare at a day before Justices at which day the obligor casteth him into Prison so as he cannot come the bond is saved otherwise if he were in Prison for Felony or any other misdemeanor for that is his own act and fault 32. H. 6. Bar 60. Or if he cast himselfe into Prison Nâ—y Max. f. 13. An infants appeale shall not stay for his full age for he shall not take advantage of his own wrong 27. H. 8. 11. One in Execution escapeth and the Goaler taketh him againe the party if he will may have him to remaine in Prison in execution for him still for the escape is his own wrong 13. H. 7. 1. So Coke l. 3. in Britons case If one in Prison upon execution escape if he be taken he shall not bring an Audita querela to discharge himselfe of his imprisonment for he shall not take advantage of his own wrong He that is party to a wrong shall not take advantage by the same wrong Perk. 41. b. As if Lessor and Lessee for yeares joyne in the cutting downe of twenty Oakes the Lessor shall not punish him in a Writ of Wast and take advantage of his own wrong The heire which is party to the death of his Father shall not have an appeale of it And if issue in taile disseise the Discontinuee of his Father and then enfeoff his Father and his Father then dyeth seised and the issue in tail enter he shall not be remitted If Lessee for life of one Acre of Land leaseth the same Acre to his Lessor for yeares the remainder to a stranger in fee and maketh livery and seisin to the Lessor accordingly it is no forfeiture Perkins ib. If tenant for terme of life enfeoff the feme of the Lessor of the same Land leased and maketh a Letter of Attorny to the Lessor to make livery and seisin and he doth so accordingly it is no forfeiture Perk. ibidem f. 42. a. If an house fall down by tempest the Lessee for life or yeares hath a speciall interest to take Timber to reedify the same if he will for his habitation but if the Lessee pull down the house the lessor may take the Timber as parcell of his inheritance and besides have an action of Wast and recover treble damages Coke l. 4 f. 63. a. in Harlackendems case A deviseth lands to B. untill eight hundred pounds be levied for the marriage of his daughters his Son and Heire entreth and concealeth the will receiveth the profits before the will is discovered then the devisee entreth receiveth the profits until they amount to six hundred and forty pounds the heir is to supply the rent for the heire shall not take advantage of his own wrong Coke l. 4. Dormit Lex aliquando jus moritur nunquam Coke com 279. b. For as Littleton there hath it it is commonly said that a right cannot dye For of such an high estimation is right in the eye of the Law as that the Law preserveth it from death and destruction trodden it may be but not trodden out for where it hath been said that a release of right doth in some cases enure by way of extinguishment it is so to be understood as here Littleton saith in respect of him that maketh the release or else in respect by construction of Law it enureth not alone to him to whom it is made but to others also who be strangers to the release which as hath been sayd is a quality of an inheritance extinguished As if there be Lord and Tenant and the Tenant maketh a Lease for life the remainder in fee If the Lord release to the Tenant for life the rent is wholly extinguished and he in the remainder shall take benefit thereof and even so when the heire of a disseisor is disseised and the disseisor maketh a release for life the remainder in fee if the first disseisee release to the Tenant for life this shall enure by way of extinguishment because it shall enure to him in the remainder who is a stranger to the release and yet in truth the right is nor extinguished but followeth the possession to wit the tenant for life hath it during his time and he in the remainder to him and his heirs and the right of the Inheritance is in him in the remainder for a right to Land cannot dye or be extinct in deed and therefore if after the death of tenant for life the heire of the disseisor bring a Writ of right against him in the remainder and he joyne the Mise upon the meere right it shall be found for him because in Judgement of Law he hath by the said release the right of the Disseisee for it is commonly and truly said that right never dyeth but is transferred and conveyed by Feoffments Grants Confirmations Prescriptions or Fines c. releases from one man to another so as the Species of it continually remaineth Res inter alios acta alteri nocere non debet factum unius alteri nocere non debet Coke com f. 152. b Things acted among others ought not to hurt either and one mans deed ought not to hurt another and Coke l 9 f. 59. It is the rule of Law and reason prohibetur ne quis faciat in suo quod nocere possit in alieno sic utre tuo ut alienum non laedas it is forbidden least any one should doe that in his own that may hurt another and so use your own that you injure not another If a man hath a Water-course running in a channell of a River up to his house for his necessary ules and a Glover levy a Lime pit for Calve-skins and Sheep-skins so neer his Water-course that the corruption of the Lime pit hath corrupted it by which his tenants goe out of his house for it an action of the case lyeth as is adjudged in 13. H. 6. 26. b. So he who hath severall Piscaries in his own Water shall have an action of the case against him who erecteth a Dye-house by which he maketh slime filth and other dirty things to run out of the said house into the said Piscaries by which he hath totally lost the profit of the said Piscaries vide in the Book of Entries Nusance f 406. b. vide the same in Aldreds case for erecting of a Swine-house plura alia ibidem And so also in Penruddocks case Coke l. 5. and in Batius case l. 11. 54. Where you shall find diverse notable cases to the same purpose Lessee for yeares shall so take his hedge-boote that he doth not destroy common of Estovers which another man hath there 46. E. 3. 17. He which hath common in Land not inclosed shall keep his Cattle out of a stranges Land 20 E. 4. 11. If Beasts be driven by the high way he ought at his perill to keep them out of the Lands adjacent to the high way
tenant of the Land to be summoned whereas he was not summoned and the tenant looseth by default upon the grand Cape returned the tenant may have a writ of deceit against the recoverer and against the Sheriff for his false returne F. N. B. 97. C. and may defeate the judgement and no damages shall be recovered against the Sheriff in such case onely he shall be fined 5. E. 4 4â— And if he dye his heire may have an action of deceite and restitution of the Land 8. H. 6.5 If a man bargaine with another and assume upon consideration to enfeoff him of ceraine Land and he enfeoffeth another he to whom the assumpsit was made may have an action of deceite or an action upon the case at his pleasure 3. H. 7.14 If one selleth to another a horse which he knoweth to have a secret disease in his body or selleth Corne which is full of gravell an action of deceite lyeth 20. H. 6.36 without warranty but F.N.B. 94. C. is of the contrary opinion If the Sheriff arrest the body by a Capias ad respondendum and returneth not the Writ the party shall have an action of false imprisonment Kell way f. 3. b. The Law ordaineth that he who will be sure of his goods shall buy them in Market overt and that sale shall bind all strangers as well as vendors and yet it is agreed in 33. H. 6. That sale in open Market shall not bind him who hath right to the goods if the sale be by fraud or the Vendee hath notice that the property of the goods appertaineth to another So the Law hath ordained the Court of the common Pleas as Market-overt for the assurances of Lands by fine so as he that will be assured of Land not onely against the Vendor but against all strangers it is good for him to passe it in this Market-overt by fine yet Covin and deceite shall avoid it overt by fine yet Covin and deceite shall avoid it 〈…〉 a Feoffment by Covin which amounteth to a wrong and disseisin Fine levyed by him who is particeps criminis and who had not nor pretended to have any right to the land shall not be a bar to the Lessor Coke l. 3. f. 78. Fermors Case A resignation made by an Abbot by covin shall not abate the Writ 4 E. 2. 22. A covenous Conveyance that assets shall not descend is not of force 34 E. 3. 19. 19 E. 2. 3. And 17 E. 3.59 That an estate made to the King and Letters patents granted over and all it by covin between him that granted to the King and the Patentee to make an evasion out of the Statute of Mortmaine shall not bind but shall be repealed A presentation obtained by fraud and deceit is voyd Dyer 339. b. Letters of administration obtained by fraud and covin are voyd and shall not repeale the former administration Dyer 339. a. vide Dyer 295. many Cases there put concerning covin If I sell to one cloath and warrant it to be of such a length and it is not of such a length the buyer may have an action of the case against me by vertue of the warranty although the warranty be by word and not written but if the warranty be made at some other time after the bargaine he may not have a Writ of deceit unlesse it be made by writing F. N. B. 98. k. If a man sell to one Seeds and warranteth them to be of another Countrey if they be not a Writ of deceit lyeth but if he warrant that the Horse which he selleth should go fifty miles in a day or that the Seeds shall grow it is otherwise And a Writ of deceit lyeth for selling of corrupt Victuall without warranty but not for selling of rotten Sheep though it be with warranty but to warrant a thing which is evident to sense as to be black which is blew is voyd unlesse the buyer be blind or the thing which is bought be absent 11 E. 4 7. 3 H. 4. 1. If I sell one certaine Pipes of Wine and warrant them to be good and they be corrupt the Vendee may have an action of the case against the Vendor F.N.B. 99. b. Yet according to the opinion of some an action will lye without warranty 7 H. 4. 14. But Master Fitzherbert saith that there ought to be a warranty and his taste ought to be his judge in such case and where it is with warranty the Writ must say that the Defendant at the time of the warranty made knew that the Wine which he sold was corrupt A Writ of deceit was brought for selling a certain quantity of Wooll and warranting it to be fifty sacks whereas it wanted of that measure the Defendant pleaded in bar that it was weighed before the sale and the servants of the Plaintiffe being his Factors did accept of it and carryed it beyond the Sea whereupon the Plaintiff demurred 13 H. 4. 1. Semper qui dolo fecit quominus haberet pro eo habendus est ac si habet Reg. J. C. Alwayes whosoever shall give or grant any thing by fraud whereby he may seem not to have it he is to be esteemed as if he hath it And therefore if a man by fraud make a Deed of gift of all his goods to one of his Creditors to deceive the rest the gift by the Statute of 13 Eliz. is voyd Twins case l. 3. f. 81 quod vide where you shall finde the signes and marks of fraud accurately and fully discovered And Coke l. 5. f. 60. a. b. debt against the heire upon an obligation the Defendant pleaded Riens per descent the Plaintiff replyed that he had Assets in D. c. and the Plaintiff giveth in evidence that the father dyed seised of lands in fee the Defendant sayd that he aliened before the Writ the Plaintif averred by covin and proved that it was done by fraud to defraud the Plaintiff and therefore it was resolved to be voyd by the Statute of 13 Eliz. c. 5. and that the fraud might be wel given in evidence because the Statute saith that the estate as to the Creditors shall be voyd and therefore shall be taken by favourable interpretation for to suppresse fraud and that it shall be mischeivous to the Creditors and increase maintenance and covin if the Plaintif should be driven to plead that the Feoffment was by fraud because it is commâ—nly hatched in arbore cava and so artificially covered and concealed that the party grieved hath no meanes to find and know it and therefore jâ—dgment was given for the Plaintiff viâ—â—e ibidem And Burrels case l. 6. f. 730. a. and l. 8. f 133. in Turners case So Hobart f. 72. Humbertons Case Humberton recovered a debt against T H. and dyed and upon a Scire facias against the Ter tenants the Sheriff returned J. H. Tenant of an house that was his at the time of the judgement and J. H. came in and pleaded that T. H.
by misadventure as by an Arrow at Butts this hath a pardon of course but if a man be hurt or maimed onely an Action of Trespass lyeth though it be done against the parties will and he shall be punished in the Law as grievously as if he had done it of malice Stanf. 16.6 E. 4.7 So if a Chyrurgion authorized to practise do through negligence of his cure cause the party to dye this Chyrurgion shall not be questioned for his life yet if he do onely hurt the Wound whereby the cure is cast back and death ensueth not he is subject to an Action of the Case for it Stanf. 16. So if Baron and Feme commit Felony together the Feme in regard of the subjection of her will to her husband shal neither be principal not accessary but if they joyn in committing a Trespass upon land or otherwise the Action may be brought against them both So if an Infant wanting discretion or a mad-man kill another he shall not be impeached thereof but if they do him any corpâ—rall hurt he shall be punished in Trespass 35 H. 6. 11. So in Felony if the principall dye or be pardoned the proceeding against the accessory faileth But in a Trespass if one commandeth his man to beat you and after the Battery the Servant dyeth yet you may have an Action of Trespass against the Master 17 H 4.19 Aestimatio praeteriti delicti post facta nunquam crescit Bac. Max f. 32. In penall Lawes and Facts the Law considereth the degree of the offence not as it standeth at this time when it is committed but for any circumstance or matter subsequent the Law doth not extend or amplifie the same As if a man be wounded and the Percussor is voluntarily let to go at liberty by the Goalor and after the party wounded dyeth yet it is no Felonious escape in the Goaler 11 H. 4.12 So if one conspire the death of one who after cometh to be King not being within the Statute of 25 E. 3. this is high not high Treason but otherwise it is in civill and common cases vide ibidem Plur. Ipsae etenim leges cupiunt ut jure regantur Co. l. 2. f. 25. In omnibus quidem maxime tamen in jure aequitas est Reg. I. C. In all things but especially in the Law there is equity and the Lawes themselves desire to be ruled by equity For inasmuch as no Legislators can foresee all things which may happen it was therfore convenient as Ploydon saith that that fault should be reformed by equity And is either an amplification or diminution of the Law and no part of the Law but a morall vertue which reformeth the Law for dirigens and directum are diverse things and equity is not a Law but the emendation of the Law and therefore the Lawes themselves desire to be ruled by equity As whereas the Debtor after he is become Bankrupt may prefer one and defraud others the Act of 13 Eliz. c. 7. hath appointed certain Commissioners of indifferency and credit to releive the Creditors of the Bankrupt equally and that there shall be an equall and rateable proportion observed in the distribution of the Goods of the Bankrupt among his Creditors having regard to the quantity of their severall debts so that one shall not prevent the other but all shall be in aequali jure and so we see in many cases as well at the Common Law as upon the like statutes such constructions have been made for as Cato said Ipsae etenim leges cupiunt ut jure regantur and therefore is it holden 35 H. 8. Title Testaments V. de plura in Herberts case lib. 7. Bro. 19. A man holdeth three Mannors of three severall Lords by Knights-service every Mannor being of equall value he cannot devise two Mannors and leave the third to descend according to the generality of the Acts of 32. 34. H. 8. of Wills for then it shall prejudice the other two Lords but by equall construction he cannot devise but two parts of every Mannor and so as equality shall be observed among them and so at the Common Law an equality is required as in 11 H. 7. 12. b. a man is bound in an Obligation and his Heirs and he hath Heirs and hath lands of the part of his Father and part of his Mother both the Heirs shall be equally charged vide ibidem plura Co. Com. f. 10. a. If partition be made between Parceners of lands in Fee simple and for novelty of partition one granted a rent to the other generally the Grantee shall have a Fee-simple without this word Heirs because the Grantor hath a Fee-simple in consideration whereof he granted the rent Ipsae etenim leges c. And Co. Com. f. 271. a. b. when a Feoffment is made to a future use as to the performance of his last Will the Feoffee shall be seised to the use of the Feoffor and his Heires in the mean time for the Lawes desire to be ruled by right and equity And reason would that seeing the Feoffment is made without consideration and the Feoffor hath not disposed of the profits in the mean time that by construction and intendment of Law the Feoffor ought to occupy the same in the mean time And so it is when the Feoffor disposeth the profits for a particular time in presenti the use of the Inheritance shall be to him and his Heires as a thing not disposed of Co. ibidem Co. l. 5. f. 100. a. The Commissioners of Sewers by the Statute of 6 H. 6. c. 5. and 23 H. 8. c. 5. ought to tax all equally which are in danger to be endamaged by not repairing the Banks and not him onely who hath land adjoyning to the River for otherwise the rage and force of the water may be so great as the value of the land adjoyning shall not serve to repaire the Banks and therefore the Statutes will have all who be in the same perill and are to receive commodity by it to be contributory and the statutes require equality which well standeth with the rule of equity for equitas in Bracton est quasi aequalitas and though the Owner of the Land next adjoyning to the River was bound by prescription to repaire the banks of the River yet the Commissioners ought not to charge him only with all but to take all those which have lands in danger for otherwise it may that all the country shall be surrounded before that one person onely can repaire the Banks vide ibidem plura In Fooks case Coke l 7. f. 123. b. When the King granteth any Land without the reservation of any Tenure or without any thing from thence to be rendred or the like that land by the operation of Law shall be holden of the King in Capite by the service of Chivalry according to the rate and proportion of land that affereth to one fee of Chivalry and so of more more and of lesse lesse for the
of the Law when one thing is provided for in the words that every other thing in the like kind shall be provided for in the same words And so when the words of a Statute enact one thing they enact all other things which are in the semblable degree As whereas the Statute of 9 E. 3. c 31. ordaineth that in an Action of Debt against Executors he that commeth in by distresse shall answer the said Act shall be extended by equity to Administrators for whosoever of them commeth in first by distress shall answer by the equity of the said Act because they are in the like degree So the Statute of 4 H. 4. c. 8. giveth an especiall Assise to him who is disseised and ousted of his land by force against the Disseisor and it is enacted that he shall recover against him double damages And so it is in an Assise of Nusance to turn the course of the water from the Mills of the Plaintiff with force it was adjudged that he should recover double damages and yet he was not put out of his land neither was there a disseisin but the Nusance was to the damage of his Frank-tenement and so by the equity of the said act the Plaintiff recovered double damages because the Nusance was in the like kind So the Statute of Gleucester giveth an Action of Wast c. against him who holdeth for life or for yeares and by the equity of it a man shall have an action of Wast against him who holdeth for a yeare or for twenty weeks and yet it is out of the words of the act because it is in the like degree and the cases which are of such degree in our Law are infinite Ployd f. 165. a. And there is another sort of equity which abridgeth and taketh from the letter and is a correction of the generall words Ethie 30. l. 10. and is defined by Aristotle to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a correction of a Law wherein it is any way wanting because of the generality of it which also in our Law is of much use As when an act of Parliament is made that whosoever shall do such an act shall be a Felon and be put to death and yet a man non sarae memoriae or an Infant of tender age who hath no discretion doth it they shall not be Felons c. or if a Statute be made that all persons who shall receive or give meat or drink or other aid to one who shall do a felonious act shall be accessory to the Offence and be put to death yet if one doth such an act and commeth to his wife who knowing it receiveth him and giveth meat and drink unto him she shall not be accessory nor Felon for in the generality of the said words of the Law he of non sanae memoriae nor Infant nor a Wife shall not be included and so equity correcteth the generality of the Law in those cases and the words generall are by equity abridged so the Statute of Champerty W. 2. l. 49. Arti. super Chart. contra probatos men generally do receive Lands and Tenements while the thing is in plea yet M. 16. R. 2. accord it was said by the whole Court in a Writ of Champerty that if I bargaine any lands before any Writ brought and after the Writ purchased I deliver Seisin That the Writ of Champerty doth not lye because it shall not be intended that the Bargain was made for such cause and that by equity for when he bargained and promised the land upon just consideration before any action brought against him it was his act to perform it notwithstanding the action And Costle promoter of the King brought an action of Extortion H. 21. H. 7. 16. against an under-Sheriff grounded upon the Statute of 23 H. 6. c. 10. which ordaineth that neither the Sheriff Goaler or Ministers nor any of them by colour of their Office shall take any thing profit c. of any person for fine fee or ease of prison but for the Sheriff 20 d. the Bayliff 4 d. and the Goaler 4 d. supposing that he had taken 20 d. above the same limited upon the Statute and upon demurrer it appeared upon evidence to the Court that all under Sherifs of the same county have used from the time whereof memory doth not run to have of every prisoner in their ward for suspition of Felony when they are acquitted twenty pence called the Bar fee and the twenty pence supposed to be taken were taken from the person named in the count being acquitted for a Bar-fee and the opinion of the whole Court was that it was out of the raise of the Statute though it was within the words of the Statute for that the sum of a Bar-fee was assigned to the Sheriff at the beginning by the order and discretion of the Court in respect of his labour and charge he had with the prisoners and for his attendance and for his ministry when the prisoners are brought to their delivery and so that payment was with reason and good conscience which the intent of the makers of the act was not to take away and so equity did put an exception to the generality of that text of the Statute Law So the Statute of W. 2. c. 4. ordaineth that where a man rat or dog escapeth alive out of a Ship neither the Ship nor any thing that is within it shall be adjudged wrack but all the things shall be saved and kept by the view of the Sheriff c. in the hands of those of the Towne where the things were found so that if any one can prove that they are his within a yeare and a day they shall be restored to him and whosoever doth otherwise shall be awarded to prison and remaine at the will of the King and render damages yet if the goods within the Ship be such things as will not endure for a yeare and a day the Sheriff may sell them and deliver the mony taken for them to the Towne to answer for it and that by equity though it be against the words of the said Act. So the Act of 2. E. 6. c. 14. Which giveth to the King all Lands and Tenements by any assurance conveyance given assigned or limited to find any preacher to have continuance for ever c. if the words of that act should be taken generally they give to the King al the houses and glebe Lands of all Parsons and Vicars but equity putteth in that text the exception of Parsonages and Vicarages because it was not the intention of the makers of that Act Ployd f. 466. vide ibidem plura There is another excellent use of equity which consisteth in guiding the grounds and maxims of of things which seem to crosse and thwart one another for as Sir John Doderidge English Lawyer f. 209. it is scarcely possible to make any second rule of Law but that it shall faile in some particular
consisteth in idlenesse for idlenesse is the mother of all vices and as Coke there saith principally in young men who ought in their youth to learne profitable sciences and trades which are profitable to the weale publick of which they may reape the fruites in their old age for jeunesse oisense vilesse disettense if in our youth we be idle in our old age we shall be indigent and for that reason the common Law detesteth all Monopolies which prohibit any one to work in any Lawfull trade and that appeareth in 2. H. 5. b. A Dyer was bound that he shall not use his Diers craft for two yeares and there Hull said that the obligation was against the common Law and that by God if the Plaintiff were here he should goe to prison untill he had made fine to the King and so for the same cause if an husbandman be bound that he shall not till and sow the ground the obligation is against the common Law And therefore the act of 5. Eliz. c. 4. that prohibited any person to use or exercise any craft mistery or occupation unlesse he had been an Apprentice for seven yeares doth not make provision onely to the intent that the artificers may be skilfull but that young men shall not be idle in their youth but trained and brought up in lawfull sciences and trades and so by the same reason the common Law doth not prohibit any person to use many Arts and Misteries at his pleasure for nemo prohibitur plures negotiationes sive Artes exercere untill it was prohibited by the Act of Parliament 37. E. 3. 6. That all Artificers c. are bound every one to one mistery and that none use other mistery but that he hath chosen but because that restraint of free trade was prejudiciall to the weale publick at the next Parliament it was enacted that all people should be so free as they were before that Ordinance by which it appeareth that without Act of Parliament no man can be in any manner restrained to worke in any lawfull trade Non negligentibus sed impotentibus succurrendum Reg. I. C. Vigilantibus non dormientibus jura subveniant Ployd f. 357. b. The Law helpeth and releiveth those are impotent not those are negligent As if you disseise me of my Land and then A. bringeth a Writ of right against you and you joyn the mise upon the meer right and you make default after the mise joyned he shall recover to him and his Heires for ever quit of you and your Heires for ever and if I doe not lay my claime within a yeare a day I am barred for ever for the Law succoureth those that are watchfull and not sleepy so as non-claime by a yeare and a day upon a recovery by default where finall judgement is given was a good Bar by the common Law 5. E. 3.222 by Hor. A descent cast during the Coverture where the wife is disseised barreth her not of her entry after her husbands death but if a feme-sole be disseised and then taketh an husband there a descent during the coverture taketh away her entry for it was her folly to take such an husband that entred not in time Littleton 95. Negligentia semper habet comitem infortunium Coke l. 8. f. 133. a. Sa. Turnors case An Executor of an Administrator ought to execute his office and administereth the goods of the dead lawfully truly and diligently Lawfully in the payment of all dueties debts and legacies in such precedency and order as they ought to be paid by the Law truly to convert nothing to his own use and ought not by any practise or devise to bar or hinder any creditor of his debt but ought truly to execute his office according to the trust reposed in him And diligently as in the case at bar for when the Administrators which had judgement for one hundred pounds for sixty pounds and the Plaintiff offered a release or to acknowledge satisfaction and he deferreth it to the intent that the Judgement shall stand in force by which the Plaintiff shall be defrauded of his due debt and the Administrators to convert the goods of the debt to their private use let the agreement be precedent before the recovery or subsequent since the recovery it is all one as to the creditor who is a third person for he is defrauded as well by the one as the other and the creditor who is a stranger shall loose his debt which is by the Law due to him and if any prejudice accreweth to the Administrators in this case it is in his own default for the Plaintiff would have released to them or acknowledged satisfaction but they defer it to the intent to bar the Plaintiff of his just and true debt and negligence hath allwayes misfortune or ill luck for her companion Ibidem Coke l. 2. f. 26. b. If a creditor upon a commission upon a Statute of Bankrupt either by obstinacy doe refuse or by carelessnesse neglect to come before the Commissioners within the time limited and to crave the benefit of the Act he looseth the benefit thereof for the Law releiveth those which are vigilant and not dormant for otherwise a debt may be concealed or a creditor may absent himselfe and void the proceedings of the Commissioners and every creditor ought to take notice of the commission it being a matter of record Coke l. 4. f. 10. b. in Bevills case it was said that the Act of 32. H. 8. c. 2. by expresse words extendeth onely to actuall possession and seisin and not to releive those which for so long time had neglected to have actuall seisin of their services and namely of suite which ought to be made twice every yeare and it was said that it was crassa supina negligentia which that Law did not intend to releive for as it is commonly said vigilantibus c. Ibidem Coke l. 4. f. 82. b. in Sir Andrew Corbets case who deviseth Lands to R. C. and others to have and to hold to them and the survivor of them untill such time that the summ of eight hundred pounds c. was received out of the issues rents c. for the preferment of his Daughters it was resolved though the Devisee had notice of the devise yet if a stranger had occupied the Land the Devisee ought to take notice at his perill for vigilantibus c. and none by the Law in such case is bound to give him notice as in the case of arbitrement 1. H. 7.5.8 E. 4.1 ibidem And this is the reason of a lapse incurring for want of presentment or of a warranty barring for lack of entry or of descents barring for want of claime and a title to tenant in courtesy is lost for lack of entry and that Statutes of limitation do bar actions One seised of Lands devisable deviseth that his Executors shall sell his Land and distribute the profits for the use of the poore and dyeth If a
of Magna Charta c. 11. might enter into anothers Woods and cut the Trees for reparations of Castles but by that Statute he did restrain himself so to do Ployd 3. 22. b. vide ibidem plura A Mil-stone that is lifted up to be picked and beaten cannot be distrained for it remaineth parcel of the Mill which is a thing for the Common-weale weale 14 H. 1 25. Things brought into an Inn Faire or Market shall not be distrained 22 E. 4. 49. No more shall Cloath lying in a Taylors Shop or an Horse that is a shooing shall not be distrained for the rent issuing out of the Shop Coke Com. f. 47. a. When a man and a woman are riding on a horse or Axe in a mans hand cutting of wood and the like they are for that time priviledged and cannot be distrained Valuable things shall not be distrained for rent for benefit and maintenance of Trade which by consequence are for the Common-weale and are there by authority of Law as an horse in the Hostrey nor the materials in a Weavers Shop for making of cloath nor sacks of Corn or meal in a Mill nor in a Market nor any thing distrained for damage feasant for it is in custody of the Law and the like So Beasts belonging to a Plow averia carucae shall not be distrained and no man shall be distrained for the Instruments of his Trade or profession as the Axe of a Carpenter or the Books of a Scholar whilest Goods or other Beasts may be distrained ibidem Coke l. 10. f. 139. b. An action of the case was brought against D. and counts that D. was seised of certain lands in Kent by reason of which his ancestors and all the Ter tenants from the time whence c. have made and repaired when it shall be materiall so many perches of the walls of the Sea in K. c. and for default of repairing c. the water entred and over-flowed the lands ef the Plaintiff the Defendant traversed the Prescription and it was found for the Plaintiff and that there was a default in the Wall for not repairing by which the Plaintiff recovered Damage and a Writ awarded to the Sheriff to distrain B. to repair the wall there where it was materiall Note this judgment in an action of the case and the reason is pro bono publico for Salus populi est suprema lex and therefore is that part of the judgment in this action of the case that the Defendant shall be distrained to repair the wall ibidem Publica utilitas privatorum commodis est praeferenda Reg. I. C Publicum bonum privato est praeferendum the publick utility and good is to be pâ—eferred before private gaine and profit and therefore shall be more favourably expounded by the Law then when it is onely for private Coke comm f. 181. b. As the Tenant holdeth of the Lord by fealty and one grain of wheat c. and the Lord purchaseth part the whole shall be extinct because it is entire but if an entire service be pro bono publico as Knights-service Castle-guard Cornage c. for defence of the Realm or to repair a Bridge or a way or to keep a Beacon or to keep the Kings Records or for advancement of Justice and Fence as to aid the Sheriff or to be Constable of England though the Lord purchaseth part the service remaineth and so it is pro opere devotionis pietatis for works of devotion and piety Coke comm f. 149. a. Coke l. f. 63. a. In the Chamberlain of Londons case the Inhabitants of a Village may make Ordinances or by-Lawes for the reparation of a Church or of an high-way or any such thing as is for the publick good generally and in such case the greater part shall bind all without any custome So Corporations cannot make Ordinanccs or constitution or By-lawes without custome or charter unlesse it be for things which concern the publick good as reparations of Churches common-waies or the like So in Corporations such Ordinances or Bylawes are allowed by Law which are made for the due execution of the Lawes and Statutes of this Realm and for the good or due government of the body Corporate And the Ordinance of the Mayor Aldermen and Comminalty of London that all Citizens Free-men and strangers shall not put any broad cloath to sale within the City before it be carried to Blackwell Hall to be viewed and searched so that it may appear to be vendible and that hallage be paid for it to wit 1 d. was good and allowable by Law because it was for the better execution of the Statutes made in that behalf without deceit and also that the assesment of the said peny for hallage was good and reasonable because it was pro bono publico vide ibidem plura Coke comm f. 181 b. If a Charter of Feoffment be made and a Letter of Attorney to four or three joyntly and severally to deliver Seisin two of them cannot make Livery because it is neither by the four or three joyntly nor any of them severally but if the Sheriff upon a Capias directed to him make a Warrant to foure or three joyntly and severally to arrest the Defendants two of them may arrest him because it is for the execution of Justice which is pro bono publico jura publica privato promiscue decidi non debunt and publick Lawes ought not promiscuously to be decided by the private ibidem Coke com f. 165. a. If a Castle that is used for the necessary defence of the Realm descend to two ot more Coparceners this Castle might be divided by Chambers and Rooms as other houses be but yet that it is pro bono publico defensione regni for the publick good and defence of the Realm it shall not be divided for the right of the Sword as Britton saith which suffereth not division that the force of the Realm do not fail so much but Castles of habitation for private use and that are not for the necessary defence of the Realm ought to be parted between Coparceners as other houses ib. And for the same reason a woman shal not be endowed of a Castle that is maintained for the necessary defence of the Realm because it ought not to be divided and the publick shall be preferred before the private but of a Castle that is for private use and habitation she shall be endowed Co. com f 31 b. vide ibidem plura So a protection cum clausula volumus is of two sorts the one concerneth services of War as a Kings Souldier c. the other wisdome and counsell as the Kings Ambassador and Messenger pro negotiis regni both these being for the publick good of the Realm private mens actions and suits must be suspended for a convenient time for the publick is to be put before the private but the cause of granting the protection must be expressed in the protection to the end
of false imprisonment because that he is Iudge of the Cause 14 H. 8. 16. Factum a Judice quod ad ejus officium non pertinet ratum non est Reg. I. C. Coke l. 10. f. 76. b. Judicium a non suo Judice datum nullius est momenti An act done by a Iudge which doth not appertain to his Office is not allowed and a Judgment given by him is not his proper Iudge is of no weight nor moment As if the Sheriff who is prescribed by the Law to hold his Turn within a month after Michaelmas holdeth his Turn after the moneth and taketh an Indictment of robbery at the same Turn and the Indictment is by a Certiorari removed into the Kings Bench by advice of all the Iustices the party so indicted was discharged because the Indictment was utterly void coram non judice because at that time the Sheriff had no authority to hold it And if a man have a Leet which is holden at a day certain if he hold it another day such Court so holden is void and without Warrant but it is otherwise of a Court Baron Coke ibidem but if the Court of Common Bench holdeth plea without an Originall it is not void for they are Iudges of those pleas and it cannot be said that the proceeding is coram non judice 19 E. 4. 8. Iudgment in the Marshalsey when none of the parties be of the houshold of the King may be avoided by plea without any Writ of Error which proveth that it is void 6 N. 2. So in Trespass before the Marshall if none of the parties be of the houshold of the King it is coram non judice because they passe their power 29 E. 4. 16. If one of the Queens houshold sue another of the same houshold and the Plaintiff is put out of service the plea depending the other may shew this and abate the Writ but otherwise it is if the Defendant be put out of service Lib. de divers des Courts f. 102. b. And if a man be impleaded in the common place for lands within the Cinque-ports the Tenant may shew to the Court that the land is within the Cinque-ports and by this plea the Court shall be outed of iurisdiction but if the Tenant doth plead in bar which is found against him and the Demandant haue judgment to recover the land tâ— is judgment shall bind the Tenant for ever Ib. 107. b And so it is of land in ancient Demesne if a Writ be brought for them in the common place if the Tenant appear and plead the bar and taketh no exception to the jurisdiction and the plea is found against him so that the Demandant recovereth he shall not reverse this by a Writ of Error because he might have taken exception to the jurisdiction of the Court and that should have been allowed ibidem But the Lord may reverse this judgment by a Writ of Deceit and make the land ancient Demesne as it was before If a man devise to one lands devisable the Devisee cannot sue for these lands in the Ecclesiasticall Court but if he make a devise of goods and chattles reall as a terme of years or of a ward he may for such sue in that Court F. N. B. f. 43. b. Jurisdictio est potestas de publico introducta cum necessitate juris dicendi Coke l. 10 f. 73. Iurisdiction is a power introduced by the publick for the necessity of decreeing and doing right The Iurisdiction of the Court of the Marshally was first instituted for the necessity of the rule and governance of the Servants of the Kings house-hold and therefore was it anciently stiled placita corona aulae hospitiâ— domini regis the Pleas of the Court of the house-hold of the Lord the King by which words it is proved that the one or the other party ought at the least to be of the house-hold of the King for how can these words stand when neither of the parties be of the house-hold of the King and that is the reason that it is not necessary in suites before the Steward and Marshall to alledge that the Plaintiff or Defendant were of the house-hold of of the King for the stile of the Court doth the same imply ibidem So the jurisdiction of the Court of Py-powders was introduced for the necessity of doing right in suits and matters concerning Markets and as that Court hath not jurisdiction but for things concerning the Market so hath it not Iurisdiction for matters concerning the Market unlesse they be done in the same Market M. 42. 42. Eliz in B. R. Hall brought a Writ of Error against Jones of a judgement given in the Court of Py-powders of the Market c. for Jones one of the Registers of the Bishop of Gloucester because Hall had published slanderous words of him c. and the judgement was reversed for two errors because those words did not concerne any matter concerning the Market and therefore the Court had no jurisdiction of it but if one slander any that shall come into the Market in any thing which concerneth his trade an Action well lyeth against hims and 2. it appeareth in the count that the words were spoken before the Market and not in it for the Court hath onely jurisdiction of those things which are done and said in the Market ibidem a. b. Where there is no colour to hold Plea as in a Court Baron of Land not holden of a mannor all is void but where there is colour to hold Plea though it be by plaint where it should be by originall yet the Iudgement rendred is onely voidable by a Writ of Error ibidem Non pertinet ad judicem secularem cognoscere de ijs quae sunt spiritualibus annexa Bract. l. 5. c. 2. It doth not appertaine to the secular Iudge to take cognizance of those things which are annexed to spirituall things And therefore the branches of Trees which are priviledged from Tithes shall be also priviledged but the suite for the Tithe branches of Trees which are not priviledged shall be in the spirituall Court as well as the suite for the Tithe of Trees themselves Res judicata pro veritate accipitur Coke com 103. a. The thing adjudged is taken for truth As in an Action of debt upon an Obligation against an Abbot the Abbot acknowledgeth the Action and dyeth the successor shall not avoid execution though the Obligation was made without the assent of the Covent for he cannot falsify the recovery in an higher Action and the thing judged is taken for truth and this is but a Chattle and so is it of a Statute or Recognizance acknowledged by an Abbot and Prior ibidem And therefore doth the Law so much respect the certainty of Iudgement and the credit and authority of Iudges as it will not permit any error to be assigned that impeacheth them in their trust and office and in wilfull abuse of the same but onely
is an Accessary Ployd 175. But if it be to kill I. S. and he killeth I. D. mistaking him for I.S. then he is no accessary because it is different in substance And if I bid I. S. to steal such things out of an house without breaking of the house and yet he breaketh the house I am accessary to the Burglary But if a man bid one rob I. S. as he goeth to Sturbridge Faire and he rob him in his house he is not accessary for the variance is of substance Ployd ib. 175. Quando aliquid mandatur mandatur omne per quod pervenitur ad illud Coke l. 5. f. 115. b. when any thing is commanded every thing is commanded whereby we may come to it Whereas a Writ of Estrepment will lye in an action of Wast because he cannot receive more damages then are contained in the Count and can assign no Wast after the Writ purchased if a Writ of Estrepment commeth to the Sheriff by virtue of it he may resist those which will make waste and if otherwise he cannot yet it is lawfull for him to imprison them and to make Warrants to others to do the same and if it be necessary he may take a Posse commitatus for his aid though the words of the Writ onely be that he shall personally go to the Messuage and altogether take order that no wast or estrepment of the said Messuage be according to the foâ—m of the statute whilest the said plea hangeth indiscussed because when any thing is commanded every thing also is commanded by which we may come to it Quando aliquid prohibetur prohibetur id per quod pervenitur ad illud Col. 9. f. 57. a. then any thing is forbidden that also is forbidden by which we come to it As confederation and combination among men uniting themselves together either by obligation or by promise to execute any unlawfull act is punishable by Law before the unlawfull act be executed and the Law punisheth the combination and the confederacy to the end to prevent the unlawfull act and therefore the usuall commission of Oyer and Terminer giveth power to the Commissioners to enquire of all combinations confederacies and false allegiancies and false allegiance is a false binding of anyâ— one to another by Obligation or promise to execute an illoyall act Boni judicis est lites dirimeâ—e expedit reipub ut sit finis litium propter communem omnium utilitatem Coke l. 5. f. 73. b. It is the part of a good Judge to cut off strifes and it is profitable to a Common-weal that there be an end of Suits for the common good of all in Williams case When a Chappell is not private to the Lord and his Family but is publick and common to all the Tenants of the same Mannor who may be many and of great number there no action upon the case lieth against the Vicar who ought and is bound by prescription by himself or some other to celebrate Divine Service in his Chappell c. for then every one of his Tenants may also have an action upon the case as well as the Lord himself and so infinite actions for one default but it is the part of a good Judge to break and put of suits and strifes c. and it is profitable to the Common-wealth that there be an end of suits for otherwise great oppression may be under the colour and pretext of Law For as Coke l. 6 f. 9. a. If there should be no end of suits then a rich and malicious man will by actions and suits infinitely vex him who hath right and in the end because he cannot attain to any end compell him to redeem his charge and vexation and to leave and relinquish his right vide ibidem plura And therefore Coke l. 9. f. 73. b. Accords with satisfaction are much favoured in Law for the interest of the Common wealth that there may be an end of suits and Coke com f. 306 b. every plea ought to be tryable for without tryall the case will never come to an end which would be discommodious to the republick And therefore doth the Law shun circuity of actions and such actions as are needless and may be saved and as Coke l. 5 f. 31. Circuitus est evitandus As if he that hath ten pounds issuing out of certain land disseiseth the Tenant of the land In an assise brought by the Disseisee the Disseisor shall cut off the rent in the damages insomuch as if the mean profits of the land were at the value of thirteen pounds the Disseisee shall recover but three l. 3 H. 6. 18. and the Disseisor shall cut of all the damages he hath expended in repairing the houses 14 E. 3. 92. and if Rent-service happen during the Disseisin it shall be cut off 9 E. 3. 8. and the reason of the cutting off in such case is because that otherwise the arrearages of the rent-service charge or seck shall be revived and therefore to avoid cercuity of action the arrearages during the Disseisin shall be cut off in damages Coke com f. 265. a. If there be Father and Son and the Father be disseised and the Son living the Father releaseth to the Disseisor all his right which he hath or may have in the same Tenements without clause of Warranty and then the Father dieth the Son may lawfully enter upon the possession of the Disseisor because he had no right in the land in his Fathers life but the right descended to him after the release made yet if there had been a Warranty annexed to the release then the Son should be barred for the Warranty may rebutt and bar him and his Heires of a future right which was not in him at that time and the reason wherefore a Warranty shall bar a future right is for avoiding of circuit of action as he that made the Warranty should recover the land against the Ter-tenant and he by force of the Warranty to have as much in value against the same person ibidem Upon the grant of a Ward with Warranty the Defendant in a Writ of right of Ward may rebutt the Plaintiff by that Warranty and shall not be driven to bring an action of Covenant for avoiding circuit of action Finch f. 55. In an action of Waste upon a lease of yeares by Deed and in the same Deed the Lessor granteth to the Lessee that he shall not be impeached of waste the Lessee may plead this in an action of waste and shall not be driven to bring an action of Covenant for avoiding circuit of action When a Father enfeoffeth his Son and Heir with Warranty and dieth now the Son in a Praecipe brought against him may vouch the Feoffor of his Father for the Law will not suffer him to vouch himself and when he cometh in as Voucher then to deigne the Warranty for the circuity of Voucher Malificia non debent manere impunita impunitas continuum
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
another to save his life thrust him from it whereby he is drowned this is neither se defendendo nor by misadventure but is justifiable Bac. Max. f. 25. So if diverse Felons be in a Goale and the Goale by casualty is set on fire whereby the prisoners get forth this is no escape nor breach of prison 15. H. 7. 2. by Keble So if a man have right to Land and doth not make his claime for feare of force the Law alloweth him continuall claime which shall be as beneficiall to him as any entry 12. H. 4. 20. Lit. So where Baron and Feme commit a Felony the Feme can neither be principall nor accessary because the Law intendeth her to have no will in regard of the obedience and subjection shee oweth to her husband Stanf. 26 2. E. 3. 1â—0 Cor. Fitz. So one reason why Embassadors are used to be excused of practises against the State where they reside unlesse it be in point of conspiracy which is against the Law of Nations and Society is because it doth not appeare whether they have it in Mandatis and then they are excused by necessity of obedience Bacon Max f. 26. So if I be tenant for yeares of an house and it by the Act of God or a stranger be over-throwne by great tempest or by sudden floods or invasion of Enemies in all these cases I am excused in wast 42. E. 3. 6. 19. E. 3. by Fitz. wast Ployd f. 9. b. Any man in his defence or a Champion upon tryall may kill others and that is for the necessity of the salvation of his life in his defence and by the common Custome of the Realme the Hostelers shall be charged with the Goods of the Guests lossed and taken out of their houses yet if their houses be broken by the Kings enemies and the goods of the guests lessened or embezelled they shall not be charged with them because they could not resist them ibidem So for necessity the funerall expences shall be first paid by the Executors Broh executor 162. So a man may milk a Cow that he hath by return irrepleaible and that is for necessity Finch Nom. I. S. 35. Davis 122. 1. Nihil magis est justum quam quod necessarium est Nothing is more just then what is necessary So the King by his Prerogative for the necessary charges of the Crown may decree Imposts and Impositions payable upon Merchandizes contrary to the petition of right and property Though a man may not be punished for an act he doth by necessity of obedience yet if the act be unlawfull he is not the less to be blamed or if it be not necessitas culpabilis As those which releived Sir John Oldcastle with provision were not punished because they did it pro timore mortis for feare of death Steel in the C. of M. H. Coke com l. 5. f. 40. b. Necessitas saepenumero vincit communem legem Necessity for the most part overcommeth the common Law As if two Joynt-tenants be of land to them and the heires of one of them they shall not joyn in a Writ of Right But two Joynt tenants and the heires of one of them in a Writ of Advowson shall joyn in a Writ of right of Advowson And the reason of the diversity is because that in the first case they have severall means and remedies as it is agreed in 46 E. 3. 21. But in the other case if Tenant for life shall not joyn with him that hath the fee neither the one nor the other shall have any remedy and therfore in this case necessity overcometh the Law ibidem Coke l. 10 f. 61. a. Illud quod alias licitum non est necessitas facit licitum necessitas inducit privilegium quod jure privatur Bract. f. 247. that which is not otherwise lawfull necessity maketh lawfull and necessity introduceth a priviledge which is deprived by Law As if a Bishop granteth an Annuity-out of his Bishoprick that is restrained by the Statute of 1 Eliz because it is a diminution of its revenues and depauperation of its successors But if a Bishop grant an Office to one only that is not restrained by the statute of 1 Eliz. because such Grants are for necessity for if the Bishop should not have power to grant such Offices of service and necessity for the life of the Grantees no sufficient persous would serve them in such Offices or at the least would not discharge it with such alacrity if they had no estate for their lives but that their estates did depend upon uncertains as the death or translation of the Bishop Bacon Max. f 17. Privilegium non valet contra rempublicam The necessity of priviledge prevaileth not against the Common wealth for publick necessity is greater then private and therefore in all cases if the act be against the Common-wealth necessity excuseth it And accordingly the Law imposeth on every Subject that he prefer the urgent service of his Prince and Country before the safety of his life As in a tempest if those in a Ship throw over their Goods they are not answerable But if upon command they have Ordinance and amunition to releive any of the Kings Townes they cannot justifie the throwing of them over ibidem So in the case of Husband and Wife if they joyn in committing Treason the necessity of obedience doth not excuse the wife as in felony because it is against the Common-wealth 13 H 8.16 by Shelly So if a fire be taken in a street I may justifie the pulling down of the Wall or House of another mans to save the row from the spreading of the fire 12 H. 10 by Brook 22 Assise pl. 66 But if I be assailed in my House City or Town and distressed and to save my life set fire on my house which taketh hold upon other houses adjoyning I am subject to their action of the case because I cannot rescue my own life by any thing which is against the Common wealth but if it had been but a private trespass as the going over anothers ground or the breaking of his inclosure when I am pursued for the safety of my life it is justifiable 6 E. 4. 7. But necessitas culpabilis excuseth not as to kill one se defendendo is not matter of justification because quarrels are presumed not to grow without some wrong and the Law supposeth the party not to be without some malice and therefore it putteth him to sue out his pardon of course and punisheth him with the loss of his Goods Bacon Max. f 28. Compulsion also is a good excuse in our Law against the words of the Law And therefore whatsoever I do by duresse is not my act but may be avoided according to the rule Actus me invito factus non est meus actus An act done against my will is not my act as when I am compelled for fear of imprisonment to make a Bond or a Deed such a fear sufficeth to avoid
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
seised by word assigned Dower to the Feme which she accepteth yet was it adjudged that that refusall of the estate of inheritance and acceptance of her Dower in pais shall not devest the Frank-tenement out of her So 13 Ric. 2. Joynt-tenancy a Charter of Feoffment was made to foure and seisin delivered to three in the name of all and after the Seisin delivered the fourth commeth and vieweth the Deed and saith by word that he will have nothing in the Land and it was adjudged that that agreement by word in pais shall not devest the Frank-tenement out of him and Thorp 35 Ed. 3. Disclaimor said that in such a case the Tenement remained in all untill a disagreement in Court of Record So if there be Lord and Tenant by Deed enfeoffeth the Lord and a stranger and maketh Livery to the stranger in the name of both if the Lord by word disagreeth to the estate it is nothing worth but if he enter into the Land generally and take the profits that amounteth to an agreement to the Feoffment but if he enter into the Land and distrain for his Seignory that act amounteth to a disagreement of the Feoffment and shall devest the Frank tenement out of him 10 E. 4. 12. by all the Justices But if Lands be given to Baron and Feme and after by the Statute of 32 H 8. the Baron alieneth the Land to the use of him and his heires and after deviseth it to his wife for life the wife enters claiming by word the estate for life this is a good agreement to the estate for life and a good disagreement to the estate of inheritance Dyer 351. b. And if A. maketh an Obligation to B. and deliver it to C. to the use of B. this is presently the Deed of A. But if he offereth it to B and he refuseth it in pais by it the Obligation shall lose his force Dyer 167. The same Law is of the gift of goods and chattels and if the goods be delivered to the use of the Donee the goods were in him presently but he may refuse them in pais and by it the property shall be determined ibidem SECT III INclusio unius est exclusio alterius Coke l. 11. f. 50. a. b The inclusion of one thing is the exclusion of another As when an act of Parliament giveth a power and interest to one certain person by that expresse designation of one all others are excluded although such a statute be in the affirmative As where the statute of 31 E. 3. c. 12. it was provided that error in the Exchequer shall be corrected and amended before the Chancellor and Treasurer and therefore it could not be corrected before any other and the generall Rule is put that when any thing is to be done before any person certain by any statute it cannot be done before any other and yet the statute of 31 E. 3. is in the affirmative Ployd 106. b. in Stradlings case So whereas by the statute of 8 H. 6. c. 9. forcible Entry is designed to the Justice of Peace to make restitution by it others be excluded though the statute be in the affirmative and therefore neither Justices of Oyer or Terminor or of Goal-delivery c. shall do it Dallisan 3 Eliz vide ibid. plura And this is true in all acts which are the introduction of a novel Law as the above said acts are but where acts of Parliaments are no introductions of a new Law it is otherwise So the act of 35 Eliz. doth not exclude those to whom the Forfeitures are limited by the act of 23 Eliz because by it they are not given to a new person but to the same person to wit the Queen and is but an act of addition to give more speedy remedy As the statute of W. 2. c. 9. in a VVrit of Mesne giveth more speedy proces and in the end fore-judger whereas the proces at the Common Law was but Distresse infinite yet the Plaintiff may take which proces he will either at the Common Law or upon the statute because they are both in the affirmative Coke l. 11. f. 64. a. And also in many cases the designation of a novell person in a latter act of Parliament shall not exclude another person that was authorized to do the same thing by an act precedent As by the statute of 8 H. 6. c. 16. after Office found he who found himself grieved might within a moneth after traverse take the Tenements to farm that then the Chancellor Treasurer or other Officer shall demise to him to farm untill c. 13 E. 4. f. 8. and yet by the statute of 1 H. 8. c. 16. he hath liberty by the space of three monthes and after by the statute of 32 H. 8. c. 40. the Master of the Court of Wards by advice of own of his Councell is authorized to make a Lease of Land in VVard or an Ideot And though the latter act design another person yet it is not the first altogether taken away for before any Lease made by the Master of the VVards the Chancellor and Treasurer may do it and so e contrario as Stanf. holdeth Prerog f. 69. a. b. VVhere he maketh mention of this Rule â—eges posteriores priores contrarias abrogant vide ibidem plura Coke com f. 210. a. If the Condition upon a Mortgage be to pay to the Mortgagee or his heires the money and before the day of payment the Mortgagee dyeth the Lessor is not to pay the money to the Executors but to the Heire for in this case designatio unius personae est exclusio alterius Consensus tolliâ— errorem Coke com f. 37. a. Consent taketh away error As Dowment ad ostium Eclesiae ex assensu patris seem to be good albeit the wife be within the age of nine years But without question for the same reason a Joynture made to her under or above the age of nine years is good ibidem Coke com f. 125. b. a. If a Venire facias be awarded to the Coroners where it ought to be to the Sheriff or the Visne cometh out of the wrong place yet by assent of the parties and so entred of Record it shall stand for all consent taketh away error ibidem Coke l. 5. f. 36. b. Dyer 367. in Bainhams case Coke l. 5. f. 40. a. b. in Dormers case A common Recovery is not to be resembled to a judgement or proceeding at the common Law for by usage and custome it is become a common assurance and conveyance of Lands and because it is done by mutuall consent errors are not to be allowed for consensus tollit errorem If the Demandant and Tenant consent that two of the foure in a Writ of Right shall be Esquires where by the Law they ought to be Knights and well because by consent Tryall of Villenage was altered from the naturall tryall by consent Pleader of a Feoffment upon condition without deed and
making of the banks of a River to be contributory to it for Qui sentit commodum c. Coke l. 7. f. 39. b. If a man grant a Rent-charge for life out of his land and the rent is behind and the Grantor enfeoff A. and the rent is behind in his time and after A. enfeoffeth B. and the rent is behind in his time and then the Grantee dyeth the Executor shall have an action of debt against every of them for the rent behind in his time for qui sâ—ntit commodum c. and so was it holden in Ognels case l. 4. f. 49. a. 50. Barons uses f. 27. If a man bind himself and his Heires in an Obligation or do covenant in writing for him and his Heires or do grant an annuity for him and his Heirs or do make a Warranty of land binding him and his Heires to warranty in all these cases the Heir after the death of the Ancestor is by Law charged with this Obligation Covenant Annuity and Warranty yet with these three cautions 1. That the party must by speciall name bind himself and his Heires 2. That some action must be brought against the Heir whilest the land or other inheritance rested in him unaliened except the land was conveyed away by fraud and one purpose to prevent the Suit intended against him And 3. That no Heire is further to be charged then the value of the land descended unto him from the same Ancestor c. nor to be sold out-right for the debt to be kept in extent at a yearely value untill the debt or damage be run out Neverthelesse for his false plea shall he be charged of his own lands for this Deed of his Ancestor and the reason of this charge is Qui sentit commodum sentire debet incommodum onus vide ibidem plura Dilationes sunt in lege odiosae Ployd f. 75. b. Delaies are tedious in the Law and therefore doth the Law favour Assise because they are the more speedy Suits the Law hath given as the Statute of W. 2. c. 25. in its recitall saith Et quia non est aliquod breve in Cancelaria per quod quaerentes habent tam festinum remedium sicut per breve Nove disseisinae And therefore because it is the more speedy Suit the Law the more greatly favoureth it ibidem For for speed to the Plaintiff the Jurors shal have the view before appearance by the words of the Writ And though Warranties are favoured in Law yet none shall vouch in Assise any one if he be not present and that is for the speed of the Plaintiff No. Nat. br f. 178. And a protection will not defend the party against an assise but assises are accepted by the words of protection p. 2. H. 6. 42. Bâ— protection 53. And all things and pleas which go in retardation or abatement of Assises are esteemed odious and therefore exceptions which will abate other Writs shall not abate Assises if it be so that there is a Disseisor and a Tenant for it is the substance of the Suit and therefore the misnaming of one of the Defendants shall not abate the assise if there be another Disseisin and Tenant and yet the Writ was alwaies false Ploâ—d f. 98. a. b. And if the Tenant plead Joynt-tenancy with a stranger not named although the Plaintiff confesse it yet it shall not abate his assise but for it onely for the remnant the Writ and Plaint shall stand in his force and yet the Plaint was altogether false and if there be a Disseisor and Tenant for any part then it sufficeth for other verity in the Writ or Plaint the Law requireth none and to say that one named in the Writ is dead before the Writ purchased or that there was never any such in rerum natura is alone and shall be adjudged no plea in abatement of the Writ but if there be another Disseisor and a Tenant the Writ shall be good against them Ployd f 90. a. vide ibidem plura And though in actions reall as the weight of the cause requireth there are longer times given in their proceedings then in personall actions yet it appeareth by Fortescue de lib. l. A. c. 5. 3. that they are not too long nor admitted without just cause Crebro enim saith he deliberationibus iuâ—icia matur scunt sed in accelerato processu numquam And as Hobert saith f. 133. Festinatio jâ—stitiae est nâ—verca infortunii Festination of Justice is the step-mother of mischief but many times by deliberations Judgments grow to ripenesse but in over hasty processe never yet the Demandant shall come to a finall end by these actions which he shall never do by prosecution of personall actions for the tryall of a Freehold or Inheritance Co. ep ad lectorem lib. 8. And in all cases the Law favoureth speeding of mens Causes and hateth delayes as 3 H. 6. 15. b. He that pleadeth a Record in delay as to prove the Plaintiff excommunicate must have it ready to shew but otherwise it is if he plead in bar In dilatory pleas both Defendants must joyne 12 H. 7. 1. A Plea in bar that is dilatory must be good to every common intent 8 H. 7. 9. One who is in Court ready to joyn with the Defendant may do it without processe As the Vouchee the Plaintiffs Lessor being prayed in aid of when the Defendant in a Replevin avoweth upon him or the Mesne when the Lord Paramount voweth upon him But Joynder in aid cannot be by an Attorney without processe 2 H. 6. 1. b. One who is a Debtor to the King of Record in the Exchequer if he be seen in the Court may be brought in to answer 2 H. 6 4. b. An assise of Darrein presentment was brought and it was pleaded in abatement of the Writ that the same Plaintiff had brought a Quare impedit against the Defendant for the same Church and the Court was of opinion that it was a good plea for the Quare impedit is of an higher nature for the right and possession and the Statute of W. 2. l. 5. saith that it may be in the election of one to have an assise of Darrein-presentment or a Quare impedit ergo not both And it was adjudged p. 15 Jaco that one cannot have two Quare Impedits of one Church for one avoidance Hutton f. 403. When the Law giveth a man severall remedies for a thing he cannot have both of them together as Littleton saith for then he should recover one thing twice which should be a double charge and a double vexation to the Defendant Co. Com. 145. a. as if I grant by Deed a Rent-charge to another the Grantee hath election to bring a Writ of Annuity and charge the person onely to make it personall or to distrain upon the land and make it reall but he cannot have both after the Grantee hath determined his election but this determination of election must be by action in
Court of Record for albeit the Grantee bringeth a Writ of Annuity he may distrain and discharge the person but if he bring a Writ of Annuity and therupon appeare and Court this is a determination of his election in Court of Records albeit he never proceed any further as if the Wife be endowed ex assensu patris if she after her Husbands death bringeth a Writ of Dower at the Common Law and Count albeit she recover not she shall never claim her Dower ex assensu patris because she hath determined her election So if the Grantee bring an assise for rent and make his Plaint he shall never after bring a Writ of Annuity and if he distrain and avow the prisall of the Distresse in a Court of Record it is a determination of his election before any judgment gâ—ven according to the rule Electio semel facta placitum testatum non patiter regressum Co. Com. 220. a. But otherwise it is where a man hath election to have severall remedies for a thing is meerly personall or meerly reall from the beginning as if a man may have an action of debt or an action of account at his pleasure and appear to it and after is non-suit yet may he have an action of debt afterwards because both actions charge the person the like Law is an assise and a Writ of Entry in the nature of assise ibidem W. brought an action of the case against F. and declared that the Defendant had sued out a Fieri facias upon a judgment given against him for the Defendant and by virtue thereof took Goods of the Plaintiff to the value of the Damage and so made his return pro defâ—ctu emptoris and that the Defendant well knowing this to the intent to trouble vex and charge him did afterwards sue out another Fieri facias to the same Sheriff and delivered it to be exexecuted who did thereupon levie the money of other Goods of the Plaintiff and paid it over to the Defendant whereby the now Plaintiff was double charged whereupon the Defendant pleaded not guilty and it was found against him and it was adjudged for the Plaintiff because he was twice vexed and disturbed and that wilfully by the Defendant who had first one execution inchoate which he ought to have followed we all knowing it and not to have taken another but if he had been ignorant and had not known of the Goods first taken he had not been lyable to the other action Hob. 37.3 Waterers case Euilibet in sua arte perito est credendum omnes prudentes eos admittere solent qui probantur ab iis qui in sua arte bene versati sunt Arist 1. Topic. c. 6. Co. l. 7. f. 19. a. The reason of the wisest man which professeth not the Lawes of England in cases which concern the Lawes of England is not to be beleived but the legall and profound reason of such who by diligence study and long experience and observation are so learned in the Lawes of this Realm as out of the reason of the same they can rule the case in question in this sense this rule is to be taken that we are to beleive every one in his art and all wise men are wont to admit those things which are approved by them are well versed in their own Art Coke l. 4. f. 29. a. Agnes was contracted to Bunting and after married Twede Bunting libelleth against Agnes in the Court of Audience upon the said Contract and upon the proceedings of which Libell it was decreed that the said Agnes should undergo marriage with the said Bunting and thereupon it was pronounced decreed and declared the said marriage with Twede to be null And though that Twede being de facto husband of the said Agnes was neither party to the said Suit nor to the sentence in the Spirituall Court which dissolved the marriage between him and the said Agnes but rhe said Agnes only yet the sentence against the Feme onely being onely declaratory was good and shall bind the Baron de facto and in regard that the Cognisance of marriages appertain to the Ecclesiasticall Court and the same Court had given sentence in this case the Judges of our Law ought to give faith and credit to their proceedings and sentence although it be contrary to the reason of our Law and to think that their proceedings are consonant to the Law of the holy Church for we are to beleive every one is skilfull in his art vide ibidem plura Coke l. 5. f. 7. in Caudries case Quod quisque norit in hoc se exerceat Co. l. 9. f. 13. a. Let every one exercise himself in that which he hath knowledge and skill It is the wisdome of the Law to refer things to persons in which they have knowledge and shall be expert and therefore the Law will not constrain the Jurors which have no knowledge in the Law to take upon them Cognisance of the points in Law or in cases which concern Life Member or Inheritance Frank tenements Goods and Chattels but to leave them to the consideration of the Judges nor the Judges to give their opinion of questions and doubts in Law upon a suddain but in all cases to have the truth of the case and upon conference and consideration to adjudge according to the Law Coke l. 8. f. 130. a. The intent of the act of 5 Eliz. c. 4. was that no man should take upon him any Art Mystery or any Occupation but such in whom is science and knowledge and therefore the statute intended that he that used any Art Mystery or any occupation at the time of the act might use the same art or mystery for every one is to exercise himself in that art which he knoweth And it was said that the Brewers should have science and skill in brewing good and wholesome Beer for it greatly conduceth to the health of men Ployd f. 128. b. Alwaies our Predeceossors for the sense of latine words have consulted with the Grammarians and others who have knowledge therein and that sense which the Grammar warranted they have allowed as 9 H. 7. 14. One was bound in an Obligation upon the condition that he should pay five pounds in fine Gold and the Obligation was puri auri and there it appeareth that the Masters of Grammar were sent for to give their counsell what was latine for fine Gold vide ibidem plura Coke l. 11. f. 10. b. Matters in Law shall be put in issue to be tryed by the Country for sicut ad quaestionem facti non respondent judices ita ad quaestionâ—m Juris non respondent juratores As the Judges do not answer to the question of fact no more do the Jurors answer to the question in Law and if the Jurors take upon them the Cognisance of the Law and find the speciall matter mistake the Law the Judges of the Law shall give judgment upon the speciall matter according to