taketh place ib. Traditio loqui facis chartum Delivery makes the Deed valid 103 U Vana est potentia quae nunquam venit in actum That power is frustraneous which is never produced into act ib. Vbi non est principalis ibi non patest esse accessarius Where there is no principal there can be no accessary 104 Vbi endem ratio ibi idem jus The same reason the same Law 105 Vbi nullum matrimonium ibi nulla dos No marriage no dower 106 Verba accipienda sunt in mitiori sensu Words are to be taken in a favourable sence 107 Verba sunt accipienda cum effectu Words are to be taken with the effect ib. Verba aquivoca intelliguntur digniere sensu Doubtful words are to be taken in the more worthy sence 108 Verba rolat a hoe maxime operantur per referentiam ut in esse videantur Relative words do especially work this by reference as they may seem in being 109 Verba chartarum fortius accipiuntur contra proferentem The words of a Deed are most strongly taken against the Grantor ib. Vnumquodque dissolvitur eo ligamine quo ligatur Every thing is dissolved by the same it obliges ib. Vltima voluntas testatoris perimplendae est secundum veram intentionem The Will of the Testator is exactly to be performed 110 Voluntas testatoris ambulatoria est usque ad mortem The last Wil only stands 111 Volenti non fit injuria To him that is willing there is no injury done ib. Vtile per inutile non vitiatur That which is profitable is not destroyed by that which is frustrane ous 112. Vxor non est sui juris sed sub potestate viri The Wife has not her own swing but is under the power of her husband Law-Principles Reduc'd to Practice A. ACcessorium non ducit sed sequitur suum Principale As if a man letteth Lands for life rendring certain rent if he grant in Reversion to another and the Tenant attorn all the Rent and Service pass by this word Reversion because the Rent in such case is incident to the Reversion But albeit he granteth the Rent to another 10 H. 7.10 Coke l. 5.21 Ployd 235. a. the Reversion doth not pass by such grant Litt. 152. a. 33. H. 6.33 A communi observantia non est recedendum A common opinion is good authority in Law Lit. 186. a. Coke Actio personalis moritur cum persona If a Lessee for years doth waste and dyeth Litt 53. b. Dy. 114. a Writ of waste lieth not against his Executor or Administrator for waste done in his life-time Actus Deinemini facit injuriam As Cokel 1.98 a. Coke l. 148. Coke l. 8.72.63 a. l. 5.86 If a Lessee covenant to leave the wood in as good a plight as it was at the time of the Lease and after the trees are subverted by tempests he is discharged of the Covenant Actus Legis nulli facit injuriam If Land out of which Rent-charge is granted be recovered by an older Title and thereby the Rent-charge is avoided yet the Grantee shall have a Writ of Annuity for that the Rent-charge is avoided by the course of Law Coke Lit. 148. a. 178. a Coke l. 5.87 Dy 60. Actus non facit reum nisi mens sit rea And therefore in criminal Causes as Felony the Act and Wrong of a mad-man shal not be imputed to him Lit. Com. 247. b. Doct. Stud. 148. Actus repugnans non Coke l. 1. potest in esse produci Corbet's Case Dy. 153.21 E. 436.4 E. 4.29 Ployd 255. a. As if a Gift in Tail upon condition that if the Donee aliene that then it shall remain to another it is repugnant for after alienation it cannot remain An Obligation solvendum nunquam the Solvendum is void for the contrariety and the thing presently due Actus me invito factus Lit. Com. 253. b. 14. Ass pl. 20.21 E. 4.28 Coke l. 2.9 Ployd 18. a. Coke l. 4.70 Lit. Com. 233. b. non est meus As when one is compelled for fear of Imprisonment to make a Bond or other Deed such fear sufficeth to avoid the same Actori incumbit onus probandi Bargainee and Bargainee if the Bargainer intend to avoid the Bargain by reason of non-inrollment within six months he must make manifest proof thereof or else it will be presumed that it was inrolled Additio probat minoritatem When it is said any where Lit. Com. 139. a. that a man is seized in Fee it shall be intended Fee-simple and not Fee-tail unless there be added to it this addition Fee-tail Ad proximum antecedens fiat relatio Litt. Com. 20. b. Dy. 14. b. 46. b. Coke l. 2.71 Cromwel's Case If a man let Land to A. for life the remainder to B. in Tail the remainder to C in formâ praedictâ this remainder is void for the uncertainty But if the remainder had been to C. in eadem forma this had been a good Estate Tail for Idem semper proximo antecedenti refertur Ad quaestionem facti non respondent Indiecs Lit. Com. 155. b. Ad quaestionem Iuris non respondent Iuratores The most usual trial of matters of fact is by twelve men And matters in ' Law the Judges ought to decide Aestimatio praeteriti delicti post factum nunquam crescit 11 H. 4.12 If the Gaoler let the Parcussor voluntarily to go at liberty and after the party wounded dyeth yet it is no feloninus escape Affectio nomen imponit operi Lit. Com. 49. b. If it be agreed between the Disseisor and Disseised Ployd 86. 141.21 H. 6.55 1 E. 4.11 4 E. 4.23 that the Disseised shall release all his right to the Disseisor upon the Land and accordingly the Disseised entreth into the Land and delivereth the Release to the Disseisor upon the Land This is a good Release and the Entry of the Disseizee being to this purpose shall not avoid the Disseizin for his intent in this case did guide his Entry to a special purpose Affectus punitur licet non sequatur effectus 34 H. 6.26.27 Ass pl. 44.19 R. 2. Breife 726. To give money to one returned on the Jury though he be not sworn is Maintenance Affirmativum negativum implicat Coke l. 9.56 As W. 2. 2.6.11 Westm c. 3. 4. Ployd 206. b. That upon account before Auditors and Arre-ages they have power to send their Bodies to the next Gool of the Lord their King in those parts Hence it is that it is herd 27 H. 6.8 That the Auditor ought to commit him to the next Gaol though another County Agentes consentientes pari poena plectuntur 22. Ass pl. 82. Coke l. 5.80 a. A. maimeth B. by the consent of C. An Appeal lyeth against A. and C. and damages equally against both Aliquis non potest esse Judex in propriâ causa Litt. Com. 141. a. Coke l. 8.118 Dy. 65.12 H. 8.11
judgement between the King and the Prior of Worcester concerning an Appropriation Et examinatis intellectis recordo et processu coram toto Concilio c. Finis rei attendendus Coke l. 5. 87. The end and fruit of a Suit is satisfaction 14 H. 7.8.33 H. 6.47 but execution of the body is no satisfaction but a gage for the debt And therefore after his death he shall resort to another execution Filiatio non potest probari Litt. Com. 126. a. A man leaveth his wise enseint with a child issue shall not be taken that she was not enseint by her Husband on the day of his death for Filiatio non potest probari Firmior est operatio legis quam dispositio hominis Litt. Com. 224. a. A Lease upon condition Coke l. 10.67 b. that if the Lessee make any waste 37 H. 6.16 a re-entry if a stranger doth waste Dy. 281. Doct. stud l. 2. c. 4. he may re-enter Yet if the Tenant had been bound in an obligation that he shall do no waste he shall not forfeit his Bond by the waste of a stranger Frustra sit per plura quod fieri potest per pauciora Coke l. 6.167 a. Ployd 191. b. 9 H. 7.24 If the King by his Patent reciting the estate tail grant the reversion and further grant the Lands in possession those several Grants in one Patent are as strong in Law as if the King by one Patent had recited the estate tail and granted the reversion and by another patent the Lands in possession Furiosus furore suo punitur Litt. Com 247. b. Ployd 19. a. Litt. 124. b. And therefore if a Mad man commit Felony he shall not dye for it for though he hath broken the words of the Law yet he hath not broken the Law G Generale nil certum implicat Coke l. 2. fol. 33. Doddington lib. 8.98 a. Baspoles case If a man be bound to be Non suited in all actions that he hath against another in the common Bench he may say that he hath no action therein otherwise if the condition be particular viz. that he shall be non-suited in a Formedon So in arbitrement when the submâ—ssion is general an award of one cause though there were more between them is good Generalibus semper specialia insunt Ployd 467. b. 68. a. As the Stat. of Gloucester giveth an action of wast against him which holdeth for years which is in the plurall number yet it may be taken for him that holdeth for a year or half a year Generalis clausula ad expressa non refertur Coke l. 4. fol. 80. Noke's Case An Assignee of a lease shall have a Writ of Covenant upon the words Demise and Graunt yet if there be an expresse Covenant that the Lessee shall enjoy it without eviction of the lessor or any claiming under him this express covenant qualifieth the generality of the covenant in Law and restraineth it by mutuall consent of both parties that it shall not extend to the Assignee Generalis clausula non porrig itur ad ea Coke l. 4.131 Dy. 56.6 quae antea sunt spicialiter comprehensa When a deed at first contains special words and then concludeth in words general both shall stand As Lands given to one and the heirs of his body habendum to him and his heirs he hath an estate tail and a fee simple expectant Generalia sunt praeponenda sin gularibus Fâ—â—z Nat. B ev 2. a. As in a Writ or Plaint the general shall be put in demand before the special as Messâ—age before lands Lands before Meadow Mendow before Pasture Pasture before Wood Wood before Jancary c. H. Haeres est pars antecessoris Lit. Com. 22. b. Coke l. 7.12.10 H. 7.8 Dy. 868. Kep 151. And therefore if Lands be given to a man and his heirs all his heirs are so totally in him as he may give the Lands to whom he will Haeres legitimus Coke l. 7.44 a. Litt. 7.6 est quem nuptiae demonstrant One who is ingendred in a vowtry during the coverture is a Mulier by the temporal and common Law Haeres non tenetur ad debita antecessoris reddenda Britton fol. 65. b. Litt. Com. 209. a. 383. b. nisi per antecessorem ad hoc fuerit obligatus praeterquam debita regis tantum If the heir be not named in the obligation he shall not be bound by the deed of his Ancestor except to the King Hermaphrodita tam masculo quam faeminae Litt. Com. 8. a. g. b. comparatur secundum praevalescentiam sexus incalescentis An Hermaphrodite shall be heir either as male or female according to that kind of the sex which doth prevail and accordingly it ought to be baptized I Id certum est Litt. Com. 45. b. 43. b. 96. a. Ployd 273. b. Dy. 91. b. 44. a. quod certum reddi potest Albeit there appear no certainty of years in a lease yet if by reference to a certainty it may be made certain it sufficeth As a lease to A. 11 H. 11. 7.17 for so many years as B. shall name when B. hath named the years it is a good lease for so many Idem semper proximo antecedenti refertur Litt. Com. 20. b. As if a man let Lands to A. for life the remainder to B. in taile the remainder to C. in forma praedicta this remainder is void for the incertainty But if it had been the remainder to C. in eadem forma this had been a good estate-tail Ignorantia juris non excusat Doct. St. 2. c. 46. Coke l. 1. fol. 177. Mildmay's Case If a statute penall be made and it is enacted that the statute shall be proclaimed by such a day in every Shire and it is not proclaimed before the day yet if any offend against this statute he shall not be excused for the not proclaiming of it for he is bound to take notice of the Law at his peril Ignorantia facti excusat Coke l. 2. fol. 3. b. Mauser Doct. Stud. l. 2. c. 47. 31 E. 3.3 As if an illiterate man be bound to seal a Deed he is not tyed to do it if there be not some present to read it if required or if it be read amisse he may plead non est factum Ignoratis terminis Coke Lit. 177. a. 2. a. 68. a. ignoratur ars Every art hath its vocabula artis which being not conceived that art cannot be comprehended Therefore the significations of words in all arts and sciences are necessary which Master Littleton and Coke upon him ordinarily observe Impotentia excusat legem Coke Litt. 29. a. 258. b. 263. b. Coke Rep. Laughter case Coke l. 98. A man seized of an advowson or rent in fee hath issue a daughter who is married and hath issue and dies seized the wife before the rent became due or the Church became void
and against reason that a man shall be Tenant of an estate of inheritance to another and the Lord should not have any manner of service for if he does not fealty hee shall not do any manner of services to his Lord Litt. Com. 188. a Ployd 419. Bracebridge's case Nihil de re accrescit ei qui nihil in re quando jus accresceret habet If two joynt Tenants be of a Rent and one of them disseize the Tenant of the Land this is a severance of the Joynture for a time for the moity of the Rent is suspended by unity of possession and therefore cannot stand in Joynture with the other moiety in possession And here if one of them die there shall be no survi vour For there shall never be any survivour unlesse the thing be in joynture at the instant of the death of him that first dieth Non refert an quis assensum praebeat verbis au rebus factis 44 E. 3. fines 37.37 H. 6.17 7. E. 3.50 If the Baron accept the grant of a Reversion that amounteth to an Attornment 44. E. 3.37 Hee which hath interesse termini cannot by express words surrender it but the acceptance of a new Lease shall drown it Non valet impedimentum quod de jure non sortitur effectum Coke l. 4.31 Frenches ease Litt. 361. h. Quod contralegem sit pro infecto habotur If Copy-hold Lands be forfeited or escheat and the Lord Lease them for years or life or any other estate by Deed or without Deed this Land can never again be granted by Copy for the Custom is destroyed For during these Estates the Land was not demisable by Copy But if the interruption be tortious as by Disseizin and Discent false Verdict or erroneous Judgement there it may be granted again by Copy Non afficit conatus nisi Coke l. 6.4 Mildmay's case sequatur effectus A gift in tail upon condition that his Estate shall cease if he go about to alien c. This condition is void for endeavour of a breach is not a breach Non est baeres viventis Litt. Com. 22. b. 217. a. If a man by Deed make a Lease for years the remainder to the right heirs of J. S. and the Lessor make livery to the Lessee secundum formam Chartae this Livery is void because during the life of J. S. his right heir cannot take and in that case the Free-hold shall not remain in the Lessor and expect the death of J. S. during the term For albeit J. S. dye during the term yet the remainder is void because a Livery of seizin cannot expect Non valet pactum de re meanon alienanda Litt. Com. 223. a. As a Feofment upon condition that the Feoffee shall not alien the condition is void Nullum iniquum in jure praesumendum Coke l. 4. fol. 70. Hynde's case Records are so high and sacred that they import in themselves inviolable verity which if any gainsay they shall be tryed only by themselves and not by the Country And if averment against a Record should be permitted then the effect and validity of the Record should be tryed by the Country which is against the Rule of Law Nullum iniquum est in jure praesumendum Nullum tempus occurrit Regi Litt. Com. 118. a. 90. b. 119. a. Ployd 156.159 9 H. 6.21.12 H. 7.12 For if the villain of the King purchase any lands and alien before the King upon and office found for him doth enter yet the King after Office found shall have the Land Nullum semile est idem Litt. Com. 43. b. Tenant by Statute Merchant Staple or Elegit are said to hold land ut liberum tenementum untill their debt be paid Yet in truth they have not Freehold but a Chattle which shall go to the Executors and the Executors if ousted shall have an Assize But is similitudinaric because they shall by the Statutes have an Assize as a Tenant of the Freehold shall have and in that respect hath similitude of a Freehold but no like is the same thing Nullus commodum capere potest de injuria sua propria Litt. Com. 148. b. If B. make a Lease of one Acre for life to A. and A. is seized of another Acre in Fee and A. granteth a rent-charge to B. out of both Acres and doth waste in that Acre which he holdeth for life B. recovereth in waste The whole Rent is not extinct but shall be apportioned and yet B. claimeth one Acre under A So if A. had aliened in Fee and B. had entred for the forfeiture O. Oninis privatio praesupponit habitum A person maketh the Lease for years reserving a Rent and dieth the Lease is determined by his death Also in a reall action a Parson Vicar Archdeacon Prebend shall have did of the Patron and Ordinary as Tenant for life shall have So that to many purposes a person hath in effect but an estate for life and to many a qualified Fee simple But the entire Fee and Right is not in him and therefore he cannot discontinue the Fee simple that he hath not nor ever had for Omnis privatio praesupponit habitum Omnia quae movent ad mortem sunt deodanda Coke l. 5.190 Foxley's case Stamf. l. 1. c. 12. fol. 20 If a man ride in a Chariot and the Chariot fall upon him and kill him the Horses as well as the Chariot shall be a Deodand Omne testamentum morte consummatum est Coke l. 4. fol. 60. Forse and Hemblings case Lit. 112. b. The making of a Will is but an inception thereof and it doth not take any effect till the death of the Devisor Omne majus continet in se minus Coke l. 5. 114. Wade's case If a man be bound in a Bond for a sum of money to be paid at a certain day and at the day the Obligee tender more than the summe yet it is a good tender for the reason above-said Litt. Com. 43. b. Omne majus trahit ad se minus The King cannot be said to be a Minor for when the Royall Body Politick of the King doth meet with the naturall capacity in one person the whole Body shall have the quality of the Body politick which is the greater and more worthy and wherein is no minority Omnia quae sunt uxoris sunt ipsius viri Litt. Com. 112. a. b. And therefore she is disabled to contract with any without the consent of the husband neither hath she power to dispose of any personal estate in her own right Omnis ratihabitio retrotrahitur Litt. Com. 180. b. mandato aequiparatur As if A. disseize one to the use of B. who knoweth not of it and B. assent to it in this case till the agreement A. was Tenant to the Land and after agreement B. is Tenant of the Land but both be disseizors Coke l. 5. fol. 321. Playters case
of Windsors case Hob. 4. f. sentire debet onus The Commissioners in the Commission of Sewers ought to tax all which are in dammage or in danger of dammage and not only him which hath the lands next adjoyning to the river for it may be that the rage and force of the water might be such that the value of the land adjoyning would not serve to amend it therefore the statute would have all in peril 6 H. 6. c. 5. and which take commodity by the making of the Banks to be contributary to the amendment thereof Quod ab initio non valet tractu temporis non convaelescet Tenant for life of a carve of Land the reversion to the father in fee the Son and Heir apparent of the Father indoweth his Wife of this carve by the assent of the Father the Tenant for life dyeth the Husband dyeth the reversion was a Tenement in the father and yet this is no good indowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a freehold whereof he could not have indowed his own Wise though the Tenant for life dyed living the Husband Quod prius est tempore Litt. Com 14. ae potius est jure quod prius dignius And therefore among the males the eldest brother and his posterity shall inherit lands in fee simple before any younger brother or any descending from him Quod semel meum est Litt. Com. 49. b. amplius meum esse non potest And therefore if a man let land for a term of years the remainder over to another for life or in tail or in fee in this case it behoveth the Lessor to make livery of seizin to the Lessee for years otherwise nothing passeth to them in the remainder although the Lessee enters into the tenements And if the termor in this case enter before any livery of seizin made to him then is the freehold and also the reversion in the lessor And if the Lessor afterwards make livery to the Lessee it is void for by the entry of the Lessee he is in actuall possession and livery cannot be made to him that is in possession Quod semel placuit in electionibus Litt. Com. 146. a. amplius displicere non potest If a man grant by his deed a rent charge to another and the rent is behind the grantee may bring a writ of Annuity or distrain at his election but he cannot have both together For if he recover by a writ of annuity the land is discharged of the distress And if he distrain for the arrearages and the Tenant sue a Replevin and the grantee avow the taking of the distress in the land in a Court of Record then is the land charged and the person of the Grantor discharged of the Action of Annuity Quoties in verbis nulla est ambiguitas Litt. Com. 14.7 a. ibi nulla expositio contra verba expressae fienda est If a rent be granted out of the Mannour of D. and the Grantor grant over that if the rent be behind the Grantee shall distrain for the same rent in the Mannor of S. this is but a penalty in the mannor of S. For the Law needs not to make construction that this shall amount to the grant of a rent for here a rent is expresly granted to be issuing out of the Mannor of D. and the parties have expresly limited out of what land the Rent shall issue and upon what land the distress shall be taken and the Law will not make an exposition against the express words and intention of the parties Quod constat clare Coke l. 9. fol. 33. Batens case non debet verificari In a Quod permittat if it appear to the Court that the Nusance is to the dammage of the Plantiff he need not shew it specially as if the house of the Defendant hangeth over the House of the Plaintiff's Refert à quo fiat perquisitum Litt. Com. 12. a. Ployd 47. Sir Edw. Clere's case Coke l. 5. f. 76. Paget's case None shall inherit any lands as heir but only the blood of the first purchasor Remoto impedimento emergit actio If tenant for life remainder for life the remainder in fee make waste in Trees and after he in remainder for life dye an action of waste is maintainable by him in the remainder in fee for the waste done in the life of him in remainder for life because to the disinheritance of him in remainder in fee and now the impediment which was the mean estate for life is taken away Repellitur à Sacramento infamis Litt. Com. 158 a. If a Juror be attainted or convicted of Treason or Felony or of any offence to life or member or in attaint for a false verdict or for perjury be adjudged to the Pillory or the like or to be branded or stigmatized or to have any other corporall punishment whereby he becometh infamous these and the like are principal causes of challenge Res inter alios acta alteri nocere non debet Litt. Com. 152. b. And therefore if a Lessor by Covin suffer a common recovery the Lessee may falsifie it by the Stat. of 14 E. c. 1. S. Sensus verborum ex causa dicendi accipiendus est Coke l. 4. 105. Birchlye's case sermones secundum subjectam materiam sermo relatus ad personam intelligi debet de conditione personae The Defendant said to B. Clerk of the Kings Bench and sworn to deal duly without corruption You are well known to be a corrupt man and to deal corruptly adjudged that the action lyes because the words ex causa dicendi imply that he hath dealt corruptly in his profession Semper praesumitur Lit. 126. a. pro legitimatione puerorum And therefore if the Husband be within the four Seas that is within the Jurisdiction of the King of England if the Wife hath issue no proof is admitted to prove the child a bastard Si mulâ—er nebilis nupserit ignobili Litt. 16. b. Coke l. 6 53. l. 4.18 b. desinit esse nobilis If a woman gain Nobility by Marriage if she marry under the degrees of Nobility she loseth it otherwise if Noble by descent Solus Deus facere potest haeredem Litt. com 7. b 22. b. And therefore during the life of the Father he cannot be heire but heir apparent And therefore a Lease for life the remainder to the right Heirs of J. S. if Tenant for life die living J. S. the remainder cannot rest there being no heirs of J. S. but onely apparent Stabitur praesumptioni donec probetur in contrarium Lit. Com. 310. b. 393. b. If a man plead the Feoffment of a Mannor he need not plead an Atturnment of the Tenants for that shall be presumed till it bee shewn to the contrary T. Testamento cum duo inter se pugnantia reperiuntur Litt. Com. 112. b.
ultimum ratum est In one Will where there be diverse devises of one thing the last devise taketh place Traditio loqui facit chartam A Lease dated 26. May. 25 Coke l. 5. f. 1. Claylon's case Eliz. to hold from three years henceforth it was delivered at three of the Clock in the afternnon of the 20th of Junt after from henceforth shall be taken the day of the delivery inclusive for the day of the delivery is parcel of the term but à die confectionis or à die datus the term beginneth the day after the date V. Vana est potentia quae nunquam venit in actum Coke l. 2. fol. 50. Tenant in Tail Cholmley's case the remainder in Tail the remainder bargains and sells the land and all his estate to I. S. for the life of Tenant in Tail the remainder to the Queen the remainder to the Queen is void because the Grantee for life of Tenant in Tail took nothing for it is a void Grant And a remainder dicitur quasi terra remauens which cannot be here And the remainder must take effect when the particular estate ends and here it never begins Et vana est illa potentia quae nunquam venit in actum Vbi factum nullum ibi fortia nulla Coke l. 4. fol. 43. Syers case ubi non est principalis non potest esse accessarius If the principall be pardoned or hath his Clergy the Accessary cannot be arraigned for none can bee principall before it be so adjudged by Law viz. by Judgement upon the Verdict or Confession or by Outlary And it sufficeth not that in truth he be principall and the acceptance of pardon or prayer of Clergy is an argument but no judgment in Law that he is guilty Vbi eadem ratio ibi idom jus Litt. Com. 232. a. 191. a. If two men do a trespass to another who releases to one of them by his Deed all actions personall and notwithstanding sueth an action of Trespasse against the other the Defendant may shew that the Trespasse was done by him and by another his fellow and that the Plantiff by his Deed which he sheweth forth release to his fellow all actions personal and demand the Judgment And yet such Deed belongeth to his fellow and not to him But because he may have advantage by the Deed if he will shew the Deed to the Court he may plead this By the same reason may the Feoffer if he is come by the Deed Poll when he ought to have advantage by the Condition comprised within the Deed Poll. Lit. Com. 32. c. Vbi nullum matrimenium ibi nulla dos To the having of Dower it is necessary that the Marriage do continue for if that be dissolved the Dower ceaseth Verba accipienda sunt in mitiori sensu As Coke l. 4.13 Thou art a Thief and hast stollen a Tree spoken of another it shall be intended a Tree standing Verba accipienda sunt cum effectu Cok. Rep. l. 4. f. 48. Ognel's case Litt. Com. 183. b. 112. b. Coke l. 3.23 Ployd 197. b. 213. c. ◠If Lands be given to two men and to the heirs of their two bodies begotten the Donees have a joynt Estate for the tearm of their lives and yet they have severall inheritances inasmuch as they cannot have an heir between them ingendred the Law will that their estate be such as is reasonable according to the form and effect of the words of the Gift viz. the Heirs which the one shall beget of his body by any of his wives and so of the other Verba aequivoca in dubie posita intelliguntur digniori potentiori sensu Coke l. 6. fol. 20. Gregorie's case secundum excellentiam As if the speech or writing be of I. S. generally it shall be intended of the father where the father and son are both of a name So if of two brothers of one name it shall be intended of the eldest for these are more worthy So where the Statute of 4. 5. Phil. Mar. speaketh in any Court of Record it shall be intended of the four Courts at Westminster because the King's Atturney it Attendant there Verba relata hoc maxime operantur per referentiam ut in esse videantur Litt. Com. 9. b. As if the father infeoff the son to have and to hold to him and his heirs And the son infeoffeth the father as fully as the father infeoffed him By this the father hath a fee-simple Verba chartarum fortius accipiuntur contra proferentem As If two joynt-Tenants grant a Rent of 10 s. the Grantee shall have a Rent of 20 s. out of the land Vnumquodque dissolvitur eo ligamine quo ligatur Litt. 5 H. 7.33 4 H. 7.7 b. In an Annuity growing by prescription rien arrear is a good plea for this prescription is matter in fact But in an Annuity by Deed it is no good plea without shewing an Acquittance Vltima voluntas Testatoris perimplenda est secundum veram intentionem Litt. Com. 322. a. b. If a man let lands devisable to another for life or for years and deviseth the Reversion by his Testament to another in Fee or in Tail and dyeth and after the Tenant commits waste He to whom the Devise was made shall have writ of waste although the Tenant never Atturn And the reason is for that the Will of the Devisor may be performed according to his intent And if the effect of this should lie upon the Attournment of the Tenant then perchance the Tenant would never Attorn and then the Will of the Devisor should never be perform'd And for this the Devisee may distrain c. or bring an action of Waste without Attournment Voluntas testatoris ambulatoria est usque ad mortem Litt. 112. a. b. Coke l. 4. f. 60. Forse and Hemling's case And therefore if a man at divers times make divers Devises and Testaments yet the last Devise and Will made by him shall stand and the other are void for the latter Will doth countermand the first Volenti non fit injuria Pop. 9. As if Lessee for twenty yeares accept another Lease for ten years the first Lease is void and gone being the acceptance of the second is in Law the surrender of the first and no wrong in the Lessor Vtile per inutile non vitiatur Litt. com 227. a. If the Jury give a Verdict of the whole issue and of more c. that which is more is surplusage and shall not stay Judgment Vxor non est sui-juris sed sub potestate viri Litt. com 112. a. And therefore during the Coverture she is disabled to contract with any without the consent of the husband Rules and Principles of Law LAW is an Art of well ordering a civil Society Lawes are Native or Positive Native are those Laws which are in us of themselves and therefore unchangeable and perpetual These are
assumption or promise doth then only bind when it is made upon good consideration In Actions It yieldoth favour when for the doing of it there is necessity Br. Executor 172. A man in his own defence for the necessity of the saving of his life and a Champion in a Writ of Right for the necessity of Triall may kill another Whither refer Conformity which is a kind of necessity Rent must be demanded though no man be upon the land to pay it Of Colour If the heir indow the Ancestors wife 41 H. 3.28 22 Ass pl. 64. though she were not dowable yet she shall hold in Dower It priseth acts in Law higher then those that are done by the party 2. 3. P. M. 134. b. 29 Ass pl. 23. 49. E. 3.15 2 H. 7.5 For equality of partition among Coperceners a Rent granted shall be a Fee-simple without the word heirs and issuing out of the land without so expressing it in the Grant It reputeth that men will alwaies deal for their own best advantage And therefore Believeth against the party whatsoever is to his own prejudice For the time of doing things It countenanceth more Things done in time of peace Litt. 97. 7 E. 3. Darren presentment 2. F. N. B. 31. b. than in time of war A Diffeizin and Descent in time of war shall not toll the Entrie of the Dasseized Things done in the day more than in the night A man must not distrain in the night time for Rent behinde Where things are fit to be straitned to a time is esteemeth according to the nature of the things Sometimes a whole day sufficient Where goods are lost in War and recovered from the enemy by another of the Kings subjects the owner shall have them again if be make fresh suit before the Sun set else not Sometimes a whole year The Lord loseth his Villain for ever if a Villain flie into ancient Demeasn and there continue a year and a day without claim of the Lord. The third offence it estremeth more heinous The third Writ not returned by the Steriff is a contempt whereupon an Attachment lieth Political Precepts follow The Law savoureth Things for the Common-weal 8 E. 4 18 b. 14 H. 8. 25.29 H. 8 Dy. 36. b. Fishermen may justfie their comming upon the land adjoyning to the Sea to dry their Nets for Fishing is for the Common-wealth and fustenance of all the Realm Publick quiet And therefore Common Error goeth for Law Ploy Manxel's case f. 2. 2 R. 3.7 Whether a common Recovery be a Bar unto an Estate Tail or no is not to be disputed because a great part of the Inheritance of the Realm doth depend upon it Of this kind are those Occonomicks The Husband and the Wife are one person And therefore F. N. B. 78 Abridgement Ass pl. Brook Denisn 2. The Wife is of the same condition with her Husband Franck if he be free Denizen if he be an Englishman though she were a neise before or an alien born They cannot sue one anothâ—r 21 H. 7.29 b. Perk. 40. or make any grant unto the other or such like If a woman marry with her Obligor the Debt is extirect and she shall never have an action against the co obliger if another were bound with him because the suit against her husband by enter-marriage was suspended and therefore being a personal action and suspended against one it is discharged against both Vpon a joynt-purchase during the coverture either of them taketh the whole Litt. 65.39 H. 6.45.21 H. 2. Judgment 63. If the husband alien land c. so given she shall recover the whole in a Cui in vita alter his death and the Warranty of one of them or his Ancestors is a bar of the whole against them both The Husband is the womans head And therefore All she hath is her hurbands If goods be given to a Feme Covert 21 H. 7.29 Litt. 148.14 El. Pl. 418. 191 16 E 4.8.7 H. 6.1.39 H. 6.27 and another the Joynture is strait-way severed and the husband and the other are Tenants in common and the Executors of the husband shall have all the goods that were his wives Her will is become his will and subject unto it If an action of Trespass be brought against Husband and Wife and the wife come in by Cepi corpus and the Husband doth not appear she must be let at large without any Mainprise till her husband doth appear but he appearing may answer without her therefore a protection cast by the Husband serveth for the wise also because she cannot answer without him Last come the Morall Rules The Law favoureth right Litt. 158. When two are in a house or other Tenements and one layes claim by one Title the other by another Title the Law adjudgeth him in possession that hath the right to have the tenements And therefore Suffereth things against the principles of Law F.N.B. 69 b. 4 H. 7.40.11 H. 7.10 rather then a man to be without his remedy The Tenant shall have a replevin against the Lord that did wrongfully distraine though the beasts be come back to himsell because he can have no action of Trespasse against him Hateh wrong So that So man shall take benefit of his own wrong 13 H. 7.1.31 H. 6.60.27 H. 8.11 One in execution escapes and the Jaylor gets him again the party if he will may have him to remain in execution for him still for the escape is his own wrong And therefore Of it selfe projudiceth no man 12. E. 4.8.48 E. 3.27 He that misdemeaneth authority that Law giveth as if one come into a Tavern and will not goe out in seasonable time or distrein for rent and kill the distress shall be a wrong doer ab initio Especially for things that cannot be imputed to his own folly 35 H. 6.3.38 H. 8. Br. The Lord Chancedor's Servant impleaded at the common Law clameth priviledge of the Chancery and before it be discussed whether he shall have it or no the Lord Chancellor dyeth yet his priviledge is allowable still for the act of the Court to advise of it shall not prejudice him And therefore Driveth not a man to shew that which by intendment he knoweth not 10. E. 4.15 2 Mar. 128 4 E. 6.46 One bound in an Obligation to serve J. S. for seven years in omnibus mandatis ejus licitis shall plead that he did serve him lawfully without shewing what service or in what Commandment for no servant can remember all Truth And therefore It disfavoureth Fraud and Covin If a woman hath good title of Dower 18 H. S. 5. and cause I. S. to disseize the Tenant of the Land and recovereth her Dower against I. S. yet this is no good estate of Dower in her for she is privy to an unlawful act which should be the means of her estate Vncertainty whereby truth is inveigled A man grants all his Trees
life by Dedi Concessi this shall inure as a confimation In one thing all things pursuant to be included 2 R. 2. Bar. 309. Upon a Grant of Trees the Grantee may come upon the Land to cut them down and with his carriage carry them thorow the Land 14 H. 8.1 10 E. 3.17 And the Vendee of all ones fishes in his pond may justifie the comming upon the banks to fish but not the digging of a trench to let out the water to take the fish for he might take them by Nets and other devices But if there were no other means to take them he might dig a trench Strongest against him that doth them 2 3. P. M. 140. b. 161. b. Two Tenants in common grant a Rent of 20 s. the Grantee shall have forty shillings But if they reserve twenty shillings upon a Lease they shall have onely one twenty shillings And therefore A man shall not qualifie his own act As 21 H. 7.23 b. if the Obligee releaseth his debt till Michaelmas the debt is gone for ever So a reversion of three acres of land is granted 18 E. 3.53 17 Eliz. Dy. 339. the tenant atturns for one it is a good atturnment for all The construction which otherwise Law would make is altered by the parties Special agreement Lessee for years is excused for waste 40 E. 3.5 Peck 55.56 if the houses be blown down by sudden storm or tempests But in that case if he covenant to keep reparations an action of covenant lies against him Speciall words As a Lease reserving a Rent 27 H. 8.19 30 H. 8. Dy. 42. b. the heir of the Lessor after his death shall have the Rent otherwise if the Lease be reserving to the Lessor Surplusage of words An information upon a Statute made such a day 6 E. 6.84 9 E. 4.28 h. and the day is mistaken is nought though he needed not to have recited the day 9 El. Dy. 255. b. A fained construction which we call a fiction in Law is when in a similitudinary sort the Law construeth a thing otherwise than it is in truth and is of the person thing action and the circumstances thereof time and place Of the person Things done by another are as if they wert done by one's selfe 27. H. 8.24 A promise to one's wife in consideration of a thing to be performed by the husband if the husband upon his comming home agree and perform the consideration he may plead this promise as made to himself So if my servant sell my goods and I agree I shall have an action of debt supposing be bought of me Of the thing we have these two Rules A thing that cometh in lieu of another 18 E. 3. rec in val 26.48 E. 3 11.6 H. 4.1 to be as if it were the same One shall recover in value against the heir upon the Ancestors Warranty lands which the heir took in exchange for lands descended A thing to be all one with that whereunto it doth amount The Maxime of a Bastard eigne is that the mulier puisne must make an entry upon him or else he gaineth the right yet a continual claim made by the mulier puisue 14 H. 4.9 14 H. 8.13 5 H. 7.1 destroyeth his right for it amounteth to an Entry So a Lease for years and a Release amount to a Feoffment And therefore A thing that should not be done to be as if it were not done 20 El. Dyer 362.18 El. Dyer 362. A man makes a Lease for years of a house with certain implements reserving a Rent The Executors after the Testators death receive the Rent yet it is no assetts in their hands for the whole Rent belongeth to the Heir So of a thing done in a time that it should not A man seized in fee le ts for ten years 1 E. b. Br. 18. and after selleth the land and taketh it back to him and his wife and then the husband and wife let it for 20 years reserving a Rent The husband dieth the wife accepts this rent during the first ten yeares By this the second Lease is not affirmed 21 El. 563. for the acceptance of a Rent before the Lease beginneth and so before any Rent be due is no acceptance at all To the circumstance of Time these two Rules pertain Priority of time is imagined in things Done together One deviseth a term for years to his son 21 El. 540. and that the wife shall have it during the son's minority This is first a Devise to his wife and after to the son when he cometh of full age Happening in an instant A Mesualty descends to the Tenant of the Land 11 H. 7.12 7 H. 46. 9 E. 4.21 Though the Mesualty be at the same time and instant extinct yet the Tenant shall pay relief if he be of full age or be in Ward if he be within age viz. where it is holden by Knights service Things relating to a time long before be Litt. 92.36 H. 6.7 as if they were done immediately from that time Where the wife is endowed by the heir of the husband's lands she shall be said to be in immediately from the husband And therefore if the husband were a Disseizor and the heir in by discent yet the Disseizee may enter upon the wife These Rules of common reason do many times cross and encounter one aenother which is the greatest difficulty that is found in the arguing of Cases But to help this the generall ground is according to the former Rule that Those prevail Litt. 110. b. 140. b. 32 H. 8. that carry the more excellent and perfect reason with them Tenant for life makes a Lease for life Br. gar 18.28 E. 3.20 b. Br. gar 17.35 H. 6.3 9 El. Dy. 264. b. 11 H. 7.9 Perk. 41.13 H. 8.15.7 H. â— 9 without naming whose life this shall be intended for his own life Rule 74. for else it were a wrong But if Tenant in tail make such a Lease for life this is a discontinuance and for life of the Grantee Rule 86. for it is strongest against the Grantor and most beneficiall for the Grantee FINIS