generall words imply no certainty and with that accordeth 21. E. 4. If a man be bound to be nonsued in all Actions that he hath against him in the Common Bench he may say that he hath no action therein otherwise if the condition be particular to wit that he shall be non-sued in a Formedon c. so as that it appeareth that generall words imply no certainty neither do they conclude any person to say that he hath nothing there vide ibidem plura Cok. lib. 8.78 a. Bospols Case In an arbitrament when the submission is generall of all Actions and Demands c. that may well stand with the generality of the words that there was but one cause depending in controversy between them For generall speeches imply no certainty and the awaâ—d for one is good notwithstanding the generality of the words for though there were many matters in controversy yet if one onely was made known to the Arbitrator he may make an award of it For the Arbitrator is in place of a Judge and his office is to determine secundum alligata probata the duty of the parties which are greived and know their particular greifes is to make known the causes of controversy to the Arbitrator for they are privy to them and the Arbitrator is a stranger and every one is to do that which lyeth in his knowledge but when the condition is in speciall and with a proviso and condition that an award shall be made of the premises or words which amount to so much there the Arbitrator ought to make Arbitrement of all or else the award is void Generalibus semper specialia derogant Reg. f. c. Derg 180. Quando charta continet generalem clausulam posteaque descenâ—it ad verba specialia quae clausulae generali sunt consentanea interpretanda est charta secundum verba specialia f. 134. b. in Edward Althams Case Which rule is almost word for word put and agreed of by both parties In. 7. E. 3. f. 10. Margery Mortimers Case to wit where a Deede speaketh by general words and then descendeth to special words if the words special agree with the words general the deed shall be understood according to the words speciall As if a man grant a rent in the mannor of P. to be taken in an hundred Acres of Land parcell of that Mannor with a clause of distresse in those hundred Acres the Rent shall issue out of the hundred Acres onely and the generall words shall be construed according to the words speciall so if a man grant a Rent and go no further those generall words shall create an estate for life but if the Habâ—ndum be for years that shall qualify the words generall 7. E. 3. So if a man give Lands to one and his Heirs Habendum to him and the Heirs of his body He shall have onely an estate tayle and no fee expectant for the Habendum qualifieth the generall words precedent Ployd f. 541. a. A man maketh a Feoffment by Deede to one to have and to hold to him and his Heirs and if it happen that the feoffee dyeth without heire of his body that then the Land shall revert The generality of that gift to him and his Heires shall be corrected by the speciall branch after so as the Donee shall have but an estate tayle 13. R. 2. in Formedon Dyer 261. b. A man seised in fee deviseth all his Lands in one village and in one of the two Hamlets by name and there were two Hamlets in the said Village The opinion of divers Justices was that none of the Lands in the other Hamlet should passe for it is intendable that the intent and meaning of the devisor was that nothing more should passe then what he had expressed A. acknowledgeth a fine of the mannor of P. with an advowson and regrants the mannor with the Appurtenances the advowson shall not passe Temp. E. 1. F. title grants Ployd 173. b. If I give or lease all my Lands to one and stay there he shall have all my Lands in England but if I say further in the manner of Dale there it is now restrained but if the specialty limiteth a thing which is void and so appeareth it is otherwise as if I lease to one all my Lands in Dale which I have by descent of the part of my mother and in truth I have no Lands in Dale which I have by descent of the part of my mother if the Lessor have other Lands in Dale he shall not have those Ployd 160. a. A man giveth Lands to two Habendum to one for life and after his decease to the other and his Heirs the one shall have the entierly for his life onely notwithstanding the Joynture given in the Premisses by the better opinion in terme M. 8. E 3.427 Generalibus sempâ—r specialia insunt Reg. f. c. Specialls are alwayes contained in the generals and the universalls allwayes comprehend the particularâ— Ployd f. 68. a. The plurall number containeth the singular and more and therefore was it resolved by all the Judges That a pretensed right and title was within the penalty of the Statute of 32. H. 8. for the buying of pretensed rights and titles for pretensed rights and titles in the plurall number did containe a pretensed right and title in the singular number And whereas the Statute of 5 R. 2. c. 5. forbiddeth that none make entry into any Lands or Tenements unlesse in case where entry is given by the Law yet if one enter into a Tenement he shall be punished though the Statute speaketh in the plurall number and likewise whereas the Statute of 1. H. 5. speaketh of false Deeds in the plural number yet if one bring but one false Deed he shall be punished by the Statute as it is holden in many Bookes Ployd f. 467. b. The Statute of Gloucester giveth an Action of Waste against him which holdeth for years which is spoken in the plural number yet may it be taken for him which holdeth for a year or half a yeare vide ibidem plura Generalis clausula non porrigitur ad ea quae sunt specialiter comprehenfa Coke l. 8. 118. b. It is a ground and maxime in the Law that a generall clause is not extended to those things which are specially comprehended Doctor Bonhams Case by the Statutes of 10 14. H. 8. it was enactd that no man should exercise the faculty of Physike within the City of London or within seven miles of the said City unlesse he be admitted thereunto by the President and Colledge of the faculty of Physike and there is another speciall clause contained in the said Acts that any who evilly and not well exercise the said faculty c. shall be punished by Fine and imprisonment c. and it was adjudged that the said generall clause that none should exercise the said faculty of Physike unlesse he be admitted c shall not be extended to the speciall clause
for the punishment of fine and imprisonment c. but that it specially shall be limitted to such onely as did offend only in not well executing and using the said faculty of Physike for a generall clâ—â—â—â— is not to bee extended to those things are specially comprehended so 34. Eliz. f. 120. ubi A. seised of the mannor of Stable in O. in the county of S in fee and also of other lands in the said O. in fee suffereth a common recovery of all and declareth the uses by Indenture that the recoveror shall stand seised of all the lands and tenements in O. to the use of him and his wife and the heires of his body and dieth and after his death the wife entreth into the said Mannor by form of the said generall wordes but it was adjudged that those generall wordâ— did not extend to the Mannor which was specially named Coke l. 4. f. 8â— b. Nokes case clausula generalis non refertur ad expressa a generall clause is not referred to those things are expressed as where the Assignee of a Lease shall have a Writ of Covenant upon those wordes demise and grant yet if there be an expresse covenant that the Lessee shall enjoy it without eviction of the Lessor or any claiming under him this expresse Covenant qualifieth the generallity of the covenant in Law and restraineth it by mutuall consent of both parties that it shall not extend to the assignee Clausula generalis non porrigitur ad ea quae antea sunt specialiter comprehensa Coke l. 4 131. l. 4. when the deed at the first containeth speciall wordes and then concludeth in words generall both the wordes as well generall as speciall shall stand as Lands given to one and the heires of his body Habendum to him and his heires hee hath an estate taile and a fee simple expectant for as Dier f. 56. b A deed by wordes subsequent may bee qualified and abridged but not destroyed Dolosus versatur in universalibus generalibus Coke l. 3. f. 8. a. Twins case it is one of the Ensignes of fraude in a Deed of gift if the gift is generall without the exceptions of his apparell or any thing of necessity for it is commonly said that the fraudulent is conversant in generalls Coke l. 3. f. 57. b. Specots case A Bishop ought not to shew a generall cause for the refusall of a Clark as that he is criminosus or non idoneus for they are too generall and the fraudulent is exercised in generalls and therefore so incertaine that no issue can be taken of them as 2. E. 3. f. 6. The heire ought to alledge some certaine cause of refusall whence issue may be taken Generalia sunt praeponenda singularibus it is a rule in the Register that in a Writ the generall shall bee put in demand or plaint before the speciall as the Mesuage before lands the Land before Meadow Meadow before Pasture and Pasture before Wood and Wood before Juncary F. a. b. f. 2. E. Ex verbo generali aliquid excipitur Coke com f. 47. a. An exception is part of the thing granted and in esse as exceptis salvo praeter and out of a generall a part may be excepted as out of a Mannor an acre but not a part out of a certainty as out of 20 Acres one Ployd f. 361. a. A Lease of all my Lands in D. except white acre is void for white acre and a gift of all my horses except my black horse is void for my black horse Coke l. 10. f. 101. b. quando verba statuti sunt specialia ratio autem generalis generaliter flatutum est intelligendum where the words of a statute are speciall and the reason generall the statute is generally to be understood as the reason of the statute of 23 H. 6. whereby it was ordeined that no Sheriff should take any obligation by colour of their office but onely to themselves and upon condition that the Prisoners appeare at the day contained in the writ was for the avoyding of extortion and oppression and therefore is to receive a benigne and favourable construction and that in equity not only a bond but an assumpsit is within the reason of that statute and so was it adjudged 27. Eliz. Trin. in the Kings Bench betweene Danhigh and Hothcot that if a Sheriff or Goaler for ease or enlargement of any who is in his custody doth take a promise of him to save him harmelesse that though the statute doth onely speake of an obligation yet it is in equall mischiefe otherwise as Wray chiefe Justice said the statute should serve for little or nothing Multa transeunt cum universitate quae per se non transeunt Coke com f. 142. a. If a man seised of land as heire of the part of his mother make a gift in taile or a Lease for life reserving a rent the heire of the part of the Mother shall have the reversion and the rent also as incident thereunto for many things passe with the generallity which by themselves doe not pass so if a man hath a rent-seck of the part of his mother and the Tenant of the Land grant a distresse to him and his heires and the Grantee dieth the distresse shall goe with the rent to the heire of part of the Mother as incident and appertenant to the rent for now is the rent-seck become a rent charge Singulare distributive sumptum e aquat plurali Dier 328. b. a singular distributively taken equalleth a plurall as in an assise the Plaint is of two Acres of Land the Tenant pleads two barrs severall for the two Acres at large and the Plaintiffe makes two severall titles at large to wit for every acre one the Tenant pleades let the assise come upon the title in the singular number and the assise found one title for the Plaintiff and the other for the Defendant against the Plaintiff and judgement was given that the Plaintiffe should recover for one Acre and be barred for the other Coke l. 10. Br. Lifiels case A Lease is for one yeare and that if they agree the Lessee shall have the Land for three yeares rendring during the said terme ten pounds yearely this reservation goeth to both termes Propria res est quae solius est sive uni soli convenit Tholoss Syntag. lib. 5. c. 1. A propriety is that which is one mans onely and appertaineth onely to one man Ploid f. 308. b God made man the Soveraigne over all living creatures and gave the rule of them all to man Terram dâ—dit filiis hominum and so men by the endowment of God were made Lords of the earth and possessors of all things in the earth but how much land or things upon the earth one man shall have and how much another God hath leased to man by lawes by them to bee made and provided and by such lawes in every Realme and Country they are provided and divided and every man
est haeres viventis and the remainder is onely good upon this contingent if I. S. dieth during the life of the lessor Coke com f. 378. a. But if lands be given to A. and B. so long as they joyntly together live the remainder to the right heires of him which dieth first and warranteth the land in forma praedicta A. dieth his heire shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heire of A. have the land by descent vide ibidem 378. b. Justum non est aliquem ante natum mortuum facere Bastardum qui toto tempore suo pro legitimo habebatur Coke l. 8. f. 101. a. b. It is not just to make any one a Bastard borne before marriage being dead who all his life time was accounted legitimate For by the law of England if such a Bastard which the law termeth Bastard eigne doth continue possession in peace that is if the mulier make no entry for the Bastard eigne or continuall claime and so dieth in peace his issue is become right heire and will bar the mulier because he was legitimate by the lawes of the holy Church For though the subsequent marriage doth not make a Bastard legitimate quoad consuetudinem regni as â—ract phraseth it in regard of the custome of the Realme yet quoad sacerdotium in respect of the Canon law it doth and in this case of legitimation which in law is so precious and of so great estimation the law respecteth neither infancy or other defects in the mulier but preferreth legitimation of blood before any benefit of temporall inheritance and therfore the law saith that by the death of Bastard eigne in peace his issue is become right heire and by consequence the mulier is barred and the descent doth not onely take away the entry but the right also and therefore descent in this case shall be a bar to right as descent of services rents reversions expectant upon an estate taile shall bar the right of the mulier 14. E. 2. Bastardy 26. but not the entry or claime of the disseisee But if a Bastard eigne dieth without issue so as the land doth descend the mulier shall have it ibidem and if the Lord by escheat entreth this shall not bar the mulier because no descent Coke com 244. If there be Bastard eigne and mulier puisne and the father maketh lease for life reserving rent and the bastard eigne receiveth the rent and dieth having issue this shall barr the mulier Coke com f. 15. a. If a man hath issue a son being a Bastard eigne and a daughter and the daughter is married the father dieth and the son entreth and dieth seised this shall barre the feme covert and the descent in this case of services rents reversions expectant upon estate or for life whereupon rents are reserved c. shall bind the right of the mulier but the descent of these shall not bind them that right have to an Action Coke com f. 244. a. So if the Bastard dieth seised and his issue endoweth the wife of the Bastard the mulier cannot enter upon tenant in dower for his right was barred by the descent ibidem If the Bastard eigne entreth into land and hath issue and entreth into religion this descent shall bar the right of the mulier ibidem If a man hath issue two daughters the eldest being Bastard eigne and they enter and occupy peaceably as heires the law shall not adjudge the whole possession in the mulier so as if the Bastard had issue and died her issue shall inherit and if they make partition that partition shall binde the issue for ever Coke com 244. a. b. And such a Bastard being impleaded or vouched shall have his age If a man hath issue a Bastard eigne or mulier puisne and the Bastard in the life of the father hath issue and dieth and then the father dieth seised and the son of the Bastard entreth as heire to his Grand-father and dieth seised this descent shall bind the mulier ibidem b. If the Bastard enter and the mulier dyeth his wife being privement with a Son and the Bastard hath issue and dyeth seised the Son is borne his right is bound for ever but if the Bastard dyeth seised his wife enseint with a Son the mulier entreth and the Son is borne the issue of the Bastard is barred ibidem 244. a. If the bastard eigne entreth and the King seiseth the Land for some contempt committed by the Bastard for which the King receiveth the profits of the Land and the Bastard dyeth and his issue upon petition is restored to the possession the mulier barred for ever But when the King seiseth for a contempt of the Father c. if the issue of the Bastard eigne upon petition be restored for that the seisure was without cause the mulier is not barred for the Bastard could never enter but the possession of the King in that case shall be adjudged in the right of the mulier Coke ibidem f. 245. b. Bastardus nullius est filius Littleton Coke com f. 203. a. aut filius populi Coke l. 6. f. 6. A bastard is the Son of none or the Son of the people according to the common report Cui pater est populus pater est fibi nullus omnis Cui pater est populus non habet ille patrem To whom the people Father is to him is Father none and all To whom the people Father is well Fatherlesse we may him call For as the civilians pater est quem nuptiae demonstrant he is a Father whom the espousalls and nuptialls shew so to be And therefore if a wife have a bastard it shall not be a villaine or if a villaine have a bastard by a woman and marrieth her the bastard is no villaine because he is nullius filius though some hold the contrary as Bracton and Britton for in both cases the issue at the common Law is a bastard quasi nullius filius Coke com f. 123. a. And though a bastard be a reputed Son yet is he not such a Son in consideration whereof an use may be raised because in judgement of Law he is nullius filius Dyer 374. And for the same reason where the Statute of 32. H. 8. of wills speaketh of children bastard children are not within that statute and a bastard of a woman is no child within that Statute where the mother conveyeth Lands unto him Dyer 313. Qui ex damnato coitu oriuntur inter filios non computantur Coke com f. 3. b. Who are borne of condemned or unlawfull copulation are not to be reckoned among children as a man maketh a lease to B. for life the remainder to the issue male of B. and the heires males of his body B. hath issue a bastard Son he shall not take the remainder because
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.
upon a false consideration the heire shall not be received to aver a false consideration against his ancestor Dier Ex nudo pacto non oritur actio Ployd 305. a. and 308. b. from a bare contract or promise no action riseth for it is not much argued by the laws of England what diversity is betweene a contract and a promise and a gift for the intent of the law is to have the matter argued not the termes A Nude contract is where a man maketh a bargaine and sale of his goods or lands without any recompence appointed for it As if I say to you I sell you all my lands or all my goods and nothing is assigned that the other shall give or pay for it this is a nude contract and is void in law and the vendee cannot bring an action for them Dr. and Student c. 24. And a nude promise is when a man promiseth to give a man certaine mony at such a day or to do him certaine service and nothing is assigned for them As if I promise to give you twenty pound to make your house anew there you shall have no action against me for the 20 l. because it is a nude promise as it is affirmed by Townsend T. 17. E. 4. Ployd f. 308. b. So if a Carpenter by word covenanteth and undertaketh to make a new house and he doth not and for not making it the Plaintiff bringeth an action of covenant against the Carpenter and it doth not appeare that he had any thing for making of the house it was adjudged in 11 H. 4. f. 33. that the Plaintiff should not take any thing by his writ Ployd 309. a. And if I promise to another to keep his goods safely till such a time and after I refuse to take them no action lieth against me but if I take them and after they be lost or impaired through my negligent keeping an Action lieth Doctor and Stud. c. 24. But otherwise it is if he to whom the promise is made have a charge by reason of the promise which he hath also performed then in that case hee shall have an Action for that thing is promised As if a man give land in Frankal-moine they are bound to make prayers to God for him and in consideration of such prayers he is bound to pay to the cheife Lord all the rents and services issuing out of that land Lit. a. Frankal And in 17. E. 4. 5. It is taken by diverse that if I promise a Surgeon a certaine summe to cure such a poor man or if I promise to a labourer certaine mony to repaire such a way which is in the high way that he shall have an action of debt for it for it is a thing of charity and I merit thankes of them for it and therefore shall not be called Nudum pactum Ployd f. 306. a. If I contract with another that if he will marry my daughter that I will give him 20 l. in this case if he take her to wife he shall have an action of debt for the 20 l. 22. E. l. Assi Pl. 70. by Thorp and yet I have nothing for it and if a man hath no regard to nature it shall be nudum pactum but because my daughter is advanced by it that is a good consideration to me Ployd f. 305. a. So Dr. and Stud. c. 24. f. 104. It is a good promise because he hath quid pro quo the preferement of his Daughter for his money But if a man promise to another 20 l. with his daughter in marriage if he marry the daughter and the money be not paid he shall not have an action of debt or an action of the case at the common law but he must sue for his money in the spirituall Court for here is no good forme of contract F. n. b. f. 44. a. And as Bracton saith matrimonium est principale ejusdem juris id est jurisdictionis eâ—â—e debet accessorium matrimony is the principall and the accessory ought to be of the same jurisdiction Gardiner brought an assumpsit and declared that the Defendant in consideration that he was indebted to the Plaintiff in 10 l. for pasturing and feeding of certaine beasts in the Plaintiffs grounds and for wheat and other Marchandises had and received by the said defendant did assume to pay to the said Plaintiff the debt that he had paid Vpon issue non-assumpsit was found for the Plaintiff and upon a Writ of error in the Exchequor-chamber that there must be some certaine cause of the debt assigned for it is not sufficient to say generally he was indebted for it might be for rents upon leases or for debts upon specialties but it was adjudged certaine enough and required not so much certainty as an action of debt upon a contract Hob. rep f. 7. Wolastone brought an assumpsit against W. and declared that whereas W. promised him 30 l. in consideration that the Plaintiff on the twentieth of August 1610. had given day to the said defendant for the payment of the same money untill the ninth of October following the Defendant did assume to pay him the same ninth day and upon issue non-assumpsit it was found for the Plaintiff and damages given Hob. f. 26. Wolastons case vide ibidem L. brought an assumpsit against B. and declared that whereas the defendant had felloniously slaine one P. M. the defendant afterwards required the Plaintiff to labour and doe his endeavour to obtaine his pardon from the King whereupon the Plaintiff upon the same request did labour c. to obtaine pardon for the said defendant and afterwards fi c. in consideration of the Premisses the defendant did promise to the Plaintiff to give him a hundred pounds and that he had not c. upon non-assumpsit it is found for the Plaintiff 100 l. ibidem f. 147. vide ibid. plura B. bringeth an action of the case against C. executor of Reade and counteth that whereas he had in M. terme 14. Jac. presented an attachment of priviledge against Reade rerurn in H. terme the testator knowing of it in consideration that at his request the Plaintiff would forbeare to prosecute the said writ did promise to pay him 50 l. and then averred c. and after verdict for the Plaintiff and exceptions in arrest of judgement the Court gave sentence Bedwels case vide ibidem plura A promise made for a thing past is void as if I promise one ten pounds because he hath builded me an house an action lyeth not there and if I promise to give another 10 l. in recompence of such a trespass that he hath done him an action lieth not against him the reason is because a contract properly is where a man for his goods shal have by the assent of the other party certaine goods or some other profit at the time of the contract or after but if the thing be promised fot a cause that is past by way of a recompence
if he be an honest man Swimb f. 210. It is an observation of a Divine that oathes ex officio had their birth from Caiphas Math. 26. who who first imposed it on our Saviour in the name of the living God saying I adjure or charge thee in the name of the living God that thou tellest us whither thou be'st Christ the Son of the living God And Mr. Pryn saith that Cardinall Woolsy the highest Priest in England was the first that invented oathes ex officio in England and that they were much inveighed against by Latimer in his Sermons and condemned by the expresse words of the petition of right providing against such oathes Prin. Vind. f. 42. Impotentia excusat legem impotency excuseth the Law Coke com f. 29. a. The Law tendreth the weaknesses and debilities of others execuseth their un-abilities ultra posse non est esse because no man is able to doe more then he can do As if a man dyeth seised of Lands in fee-simple c. and these Lands descend to his Daughter and shee taketh an husband and hath issue and dyerh before any entry the husband shall not be tenant by courtesy because it was in the power of the husband to have entred but if a man be seised of an advowson or a rent in fâ—e and hath issue a daughter who is married and hath issue and dyeth seised the wife before the rent became due or the Church became void dyeth he shall be Tenant by courtesy because he could by no industry enter or attaine to any other seisin then a seisin in Law or bring it to an actuall seisin And f. 258. b Though an Hermite or an Anachorite be shut up himself so as by his order he is not to come out in person yet to avoid a descent he may command one to make claim and such a recluse may allwayes appeare by an Attorney in such cases where others must appeare in proper person and f. 263. b. An Abbot of a Monastery dyeth and during the vacation one wrongfully entreth into a certaine parcell of the Land of the Monastery claiming the Land to him and his heirs and dyeth seised and the Land descendeth to the heire and then one is elected Abbot the Abbot may enter upon the heire for by the death of the Abbot no person is able to make continuall claime and therefore a descent in that kind shall not prejudice the succession Coke l. 1. f. 98. a. If the Lessee Covenant to leave wood in the same plight the wood was at the time of the lease and afterwards the trees be sub-verted by tempest hs is discharged of his covenant by reason of his impotency and l. 4. f. 11. a. If the Lord release to the Tenant so long as I. S. hath heire of his body and sixty years passe and then I. S. dyeth without heire of his body in this case though the sixty years be passed yet the Lord may distraine for it was impossible that she should attaine to any seisin within that time and therefore the act of limitation made in 32. H. 8. doth not extend to such rent or service that by common possibility could not happen or become due within sixty years and so if Land holden by Homage and Fealty be conveyed to a Mayor and Commonalty c. in this case they cannot doe their Homage and Fealty yet though they have enjoyed the Land above sixty years if they alien the Land the Lord may distraine for Homage and Fealty 33 H 8. Br. Tit. Fealty 15. vide ibidem pluta in Bevills case and lib. 6. f. 21. b. in Butlers case It was resolved that legall imprisonment without Covin is a good excuse of non-residency in any Parson by reason of his impotency Quod remedio destituitur ipsa revalet si culpa ab sit the thing which is destitute of remedy availeth in the matter it selfe if there be no fault or laches in the party Coke l. 6. f. 68. a. As if a man be seised of a manner part of which is in lease for life and part in lease for yeares and levieth a fâ—ne to A. to the use of B. in tail with diverse remainders over in this case B. shall avow for rent or have an Action of Wast without any Attornement for when the reversion is setled in any one in judgement of Law and he hath no meanes to compell the tenant to attorne and no laches or fault is in him there he shall avow or have an Action of Wast without Attornment As if the Lord in Mortmaine or if a villaine claimeth a reversion by this claime the Law vesteth thiS reversion in him and he hath no meanes to compell the tenant to attorne and therefore he shall avow or have an Action of Wast without Attornement the same Law is of Letters Patents and of the devise of a reversion for in all those cases culpa abest there is no fault 9. H. 6. vide ibidem plura in Sir Moile Finches case And Coke l. 8. f. 172. b. in Hales case If the heire at full age tender his livery and dyeth within three months before he hath accomplished it so as the making of his homage or suing out of his livery without default in him is become impossible by the act of God he shall have as much advantage by his tender as if he had made homage or sued out his livery for impotency in this case excuseth the Law and in the judgement of the Law the interest of the King by the said limitation is determined as if the Lord had taken homage of the heire when he made his tender vide ibidem plura Coke l. 10. f. 139. b. If tenant for life or for years doth not repaire a wall of dirt so as by his default the Land is surrounded and becometh unprofitable that is Wast but if the Land be surrounded by the extraordinary rage and violence of the Sea without any default in him that is not Wast no more then if an house was burnt by lightning or subverted by the rage of the wind or tempest without default of the Lessee for impotency excuseth the party vide ibidem plura in Kighleys case So as it is regularly true that the Law tendreth the infirmities of unable persons and excuseth their impossibilities as of men illiterate out of the Realme in Prison Infants Idiots out of their sound minde as also of blind and deafe dumbe and blind If a man illiterate be bound to make a deed he is not bound to seale or deliver any writing that shall be tendred unto him and if it be Latine or other Language which he understandeth not he may demand that one read it and expound it unto him and if none be there present to read and expound it the party may refuse to deliver it for his ignorance excuseth him Coke l. 2. f. 3. Mansers case And for that reason if the Deede be read unto him in other words then are contained within
corrodit vistera textus a viperous exposition which should tear the bowels of the Text ibidem Coke l. 8. f. 1. 7. a. b. The better Expositors of all Letters Patents and Acts of Parliaments are the Letters Patents and Acts of Parliament themselves by construction and conference of all the parts of them together for optima Statuti interpretatrix est omnibus particulis ejusdem inspectis ipsum Statutum Injustum est nisi tota lege inspecta una aliqua particula proposita judicare vel respondere The best expounder of a statute is the statute it self all the parts of the same being looked into and it is an unjust thing One particular being propounded to judge and answer unless the whole Law be looked into ibidem in Dr. Bonhams case Coke l. 10. f. 24. b The better exposition of the Charter of the King is upon consideration of all the Charter to expound the Charter by the Charter it self and the Letters Patents in this case are the bowels of the Text and therefore all the parts of the Letters Patents should be considered and every part of it explained according to the true and genuine sense for verba chartae regi aeque portant suam expositionem For the words of the Kings Charter do equally carry their own exposition ibid. Divinatio non interpretatio est quae omnino recedit a littera Bac Max. f. 16. It is a divination and not an interpretation which leaveth the Letter As if I have a fee-farm Rent of ten shillings issuing out of White-acre and I reciting the same reservation do grant to I. S. the rent of five shillings to be received out of the aforesaid rent and out of all my Lands and Tenements in Dale with clause of distress Though there be an Attornment nothing passeth out of my former rent because for that it is against the words and the copulation of the words shew the taking of them in another sense but if I reciting that I seised of such a rent of ten shillings do grant five shillings to be received of the same rent it is good enough without attornment because percipiendum de to be received of may well be taken for parcella de parcell of without violence of the words but if it had been of the aforesaid rent it had been void vide ibidem But as Ployden saith f. 162. Exception Non est regula quin fallit There is no Rule but faileth and as hath been said the more reasonable and equitable rule is alwaies to be preferred when they encounter and meet in opposition as contrary to this is the rule of the Civilians Leges non verbis sed rebus esse impositas And Coke l. 11. 34. b. Qui haeret in littera haeret in cortice Lawes are not imposed upon words but upon things and he that sticketh in the letter sticketh in the bark or outside of the matter and not attaineth to the inside of the sense As by the statute of 27 E. 3. c. 1. It was provided that he that draweth one to the Court of Rome in a plea which was determined in the court of the King or of other things whereof judgment is given in the Court of the King c. to defeat the judgments given in the Court of the King shall have day containing the space of two moneths c. and if they come not within the meane time in proper person they shall be put out of protection c. and the question was moved in 30. E. 3. 11. If the Defendant appeareth pleadeth and be condemned whether he shall have the Judgement of a Praemunire given by the said Act but since in 39. E. 3. f. 7. Iudgement was given against the Bishop of Chicester who appeared although the letter of the Statute is that if they come not at the same day c. they shall be put out of protection and therefore a multo fortiori when the defendant in such case appeareth pleadeth and shall be found guilty he shall have Iudgement upon the said Statute 44. E. 3. 36. and yet it is out of the words of the Act which speake onely of a default for Qui haeret in littera c. So by the Statute of 25. E 3. the killing of his Master is adjudged Treason yet by construction is it extended to his Mistresse as it is holden in 19. H. 6. 47. And whereas by the Statute of 25. H. 8. house burners were deprived of Clergy and in the Statute of 5. 6. E. 6 there was no mention of that offence in particular but onely that the said Statute should stand in force concerning the tryall of offendors in another County yet by another sentence in the said Act that every clause and sentence in the said Act touching Clergy c. shall from henceforth concerning such offences remaine and be in full strength and virtue it was adjudged that the said clause should extend to all the Act of 25. H. 8. because by that construction such an hainous offence should not passe in effect without capitall impunity and that such Malefactors shall not be encouraged to burne not onely Houses but Villages and Cities And it is frequent in our Books that penall Statutes have been taken by intendement beside the letter to the end that they shall take effect according to the expresse intention of the makers of the Act to remedy the mischeife in advancement of Justice and suppression of hainous crimes Coke ibidem vide ibidem plura And though it is a Maxime that penall Lawes are to be taken it may be conceived of such as concerne inferior and not hainous offences Coke Com. 365. b. A man seised of Lands in fee levied a fine to the use of himselfe for life and after to the use of his wife and of the heire males of her body by him begotten for her Joynture und after he and his wife levied a fine and suffered a common recovery the husband and wife dyed and the issue male entered by force of the Statute of 11. H. 7. And it was holden that the entry of the issue male was lawfull and yet this case was out of the letter of the Statute for shee never levied a fine being sole or with any other after taken husband but is by her selfe with the husband that made the loynture but this case being in the same mischeife is therefore within the remedy of the Statute by the intendement of the makers of the same to avoid the dis-inherison of heires who were provided for by the said Ioynture and especially by the husband himselfe that made the Ioynture which as it was said was a stronger case then any set down in the Statute for Qui haeret in littera vide ibidem plura Coke com 241. a. If there be Lord Mesne and Tenant and the Mesne doth grant to the Tenant to acquit him against the Lord and his heires the Lord dyeth his wife hath the signiory assigned to her for the
the poor and the twenty pounds to the Queen and therefore doth the Statute of 3 Jac. c. 4. give a more speedy remedy for the said twelve pence yet shall they not be punished but upon one of them Yet when the latter affirmative Statute is contrary to the precedent Statute in matter the former abrogateth the latter as by the Statute of 33 H 8. c. 23 it is enacted that if any person being examined before the Councell of the King or three of them shall confess any Treason misprision of Treason or Murther or be to them vehemently suspected he shall be tried in any County where the King pleaseth by his Commission and after by the Statute of 1 2 P. M. c. 10. it was enacted That all trialls hereafter to be had for any Treason shall be had according to the course of the Common Law and not otherwise That latter act and though the latter words had not been had abrogated the first because they were contrary in matter But that doth not abrogate the Statute of 34 H. 8. c 2. of the triall of Treasons beyond the Seas notwithstanding the words are in the negative because it was not contrary in matter for it was not triable by the Common Law Dyer 132. Stanf. 89. 90. So the Statute of 1 E. 6. of Chanteries being in the affirmative doth alter the Statute of H. 2. c. 41. which giveth a Cessavit cantaria also in the affirmative for the one is contrary to the other in matter vide plura Coke l. 9. f. 63. a. But whensoever Lawes are contrary in quality that is where the first is a materiall or express affirmative and the latter an express or materiall negative and when the first is a materiall or express negative and latter affirmative there the latter Law doth abrogate the former As the Statute of 5 E. c 4. which prohibiteth every person to use or exercise any craft mystery or occupation unless he hath been an Apprentice for seven years doth alter the Common Law by which any one may in any manner worke in any lawfull Trade without any service precedent for without an Act of Parliament no man can be restrained to worke in any Trade Coke l 11. f. 54. a. in the Taylors of Ipsiches case And to conclude to this Argument with the generall ground given by Sir Edward Coke l. 1. 11. f. 67. a. That for that Acts of Parliament are established with such gravity and wisdome and the universall consent of all the Realme they ought not through any strained construction out of the generall and ambiguous words of a subsequent Act be abrogated as where the Statute of 16. R 23 c. 5. enacteth that all the Lands and Tenements of any one attainted in a Praemunire shall be forfeited to the King in the case of one Prudgion Pasch 21. Eliz. being tenant in taile of certaine Lands and Tenements who was attainted of a Praemunire the question before all the Judges of England was whether the estate taile was a bar or no and it was resolved by all the Justices that those generall words had not repealed the Statute de donis conditionalibus but that onely he shall forfeite them for his life and that the issue in taile should inherit vide ibidem plura Lex non patetur fractiones divisiones Statuum Coke l. 1. f 87. a. The Law will not suffer fractions and divisions of estates As if a man make a lease for life upon condition that if he doth not pay twenty pounds that another shall have the Land that future limitation is void Ployd f. 25. c. M. 18. H. 8. 3. And if after the Statute of 1. R. 3. before the Statute of 27. H. 8. A man had made a Feoffment to the use of one for life or in taile and after to the use of another for life or en-taile and after to the use of another in fee they in the Remainder might not make a Feoffment nor grant their estates by the generall words of that act for then there should be a fraction and division of estates which the Law will not suffer vide ibidem plura in Corbets case Coke l. 3. f. 32. b. If a man be seised of a Mannor to which a Leet waife or stray or any other hereditament which is not of any annuall value is appendant or appurtenant there by a devise of the Mannor with the appurtenances those shall passe as incidents to the Mannor for in that the Statute enableth him by expresse words to devise the Mannor by consequence it enableth him to devise the Mannor with all incidents and appendants to it and it was never the meaning or the intention of the makers of the Statute that when the Devisor hath power to devise the principall that he shall not have power to devise it that was incident and appendant to it but that the Mannor c. shall be dismembred and fractions made of things which by legall prescription have been united and annexed together Ibidem for the Law will not permit such factions in Estates Coke com f. 147. b. If a man hath a rent-charge issuing out of certaine Land and he purchaseth any part of the Land to him and his heires the whole rent-charge is extinct because the rent is entire and against common right and issuing out of every part of the Land and therefore by purchase of part is extinct in the whole and cannot be apportioned Coke com 309. b. If the reversion be granted of three acres and the Lessee agree to the said grant for one acre this is good for all three and so it is of an Attornement in Law if the reversion of three acres be granted and the Lessee surrender one of the Acres to the Grantee this Attornement shall be good for the whole Reversion of the three Acres according to the grant Apices juris non sunt jura Coke com f. 2 83. b. nimia subtilitas reprobatur in Lege Coke l. 4. 4â— b. The Law of England respecteth the effect and substance of the matter and not every nicity of forme or circumstance and too much subtility is reproved in the Law As it was alledged for an exception in the Enditement that the Enditement was taken before I. S. Coronatore in comitatu praedicto and not de comitatu praedicto or comitatus praedicti and every Coroner of one County is a Coroner in every County of England but not of every County but it was not allowed for the Coroner in the County c. shall in all reasonable intendement be taken for the Coroner of the County and so it is used in the Writ de coronatore elegendo ibidem vide plura Coke l. 5. f. 120. 122. It is a rule in Law that Enditements ought to be certaine but there are three manner of certainties the first is to a common intent and that sufficeth in Bars which are to defend the party and excuse him the second is to a generall
holdeth his Lands and things by the Lawes of the Land wherein hee liveth and this commonly called the law of proeprty Nihil dat quod non habet Arist nemo potest plus juris in alium transferre quam ipse habet Coke com f. 309. b it is a common erudition in the Law that no man can grant that hee hath not Perkins f 15. for that is requisite that he who by his contract shall make another possessor of any thing should bee the proâ—rietor of the thing it selfe otherwise his contract is void Ployd f. 432 b. as if I possessed of an horse sell the Horse upon condition to another that he pay to mee at the feast of Christmas forty shillings for it and before the said feast I sell the horse to another and after the feast the first Vendee failes of payment by which I reseise the horse the second Vendee shall not have the horse for at the time of the second contract I had neither interest nor property nor possession of the horse but onely a condition which is not sufficient to make me able to contract for the property and possession therefore it is meerely void Ployden So if a man grant a rent charge out of the Mannor of Dale and in truth he hath nothing in the Mannor of Dale and after purchaseth the Mannor of Dale yet hee shall hold it discharged Perkins H. 15. So if one not seised of Lands maketh a Lease to another it is a good Plea for the Lessee to say that the Lessor had nothing in the Tenements at the time of the Lease Litt. and the reason of this is for that in every contract there must be quid pro quo for contractus est quasi actus contra actum and therefore if the Lessor had nothing in the land the Lessee hath not quid pro quo nor any thing for which he should pay his Rent and in that case he may plead that the Lessor non dimisit Coke Com. ibidem f. 41. b. vide ibidem plura If the Conusee of a Fine before any Attornement bargaineth and selleth the Signiory to another the Bargainee shall not distraine because the Grantor could not distrain for no man can transfer more right to another then he himselfe hath Coke Com. 309. b. Coke l. 6. f. 57. b. He that hath no seisin in the Land charged cannot give seisin of Rent vide plura Bredimans for no man can give that he hath not The King pardoneth one for making a bridge this is onely good for the fine and he must make up the Bridge because the Kings Subjects have interest in it 37. H. 8.4 Da tua dum tua sunt post mortem tunc tua non sunt Ployd 280. a. when one hath property in goods the property cannot be in him no longer then he liveth for after his death the goods belong unto another Nemo videtur rem amittere cujus propria non fuit Reg. I. C. no man can loose that of which he hath no property and therefore in a Replevin if the Defendant claim property the Sheriff cannot proceed for it is a rule in Law the property ought to be tryed by writ and therefore in this case where the tryall is by plaint the Plaintiff may have a writ de proprietate probanda directed to the Sheriff to trye the property and if thereupon it be found for the Plaintiff the Sheriff shall make deliverance Coke Com. f. 145. b. F. n. b. f. 77. If A. endict B. for stealing of Horses or other goods he must say de bonis catallis cujusdam A. For if there were no property there could be no stealing or injury for nemini vim facere videtur qui suo non alieno utitur Reg. I. c. Nemo reditum invito domino percipere possidere potest Coke Com. 303. b. no man can receive or possesse another mans Rents against the will of the Lord as if one hold of me by Rent which is service ingrosse and another which hath no right claimeth the rent and receiveth it of my Tenant by coertion of distresse or otherwise yet by the payment of my Rent to a stranger I cannot be disseised or ousted without my will or election but that I may distrain my Tenant for the Rent or have an assize against the â—ernor Lit. for a man cannot be disseised of a a Rent-service in grosse Rent-charge or Rent-seck by Attornment or payment of Rent to a stranger but at his election for the rule of the Law is no man can receive or possesse an other mans rent against his will Coke ibidem Quod meum est id amplius meum esse non potest Coke Com. f. 49. b. And therfore if lessee for years enter he is in actuall possession and then Livery cannot e made to him that is in actual possession whereby the Franke-Tenement or fee may inure to him in the remainder for that which is once mine cannot be more mine ibidem Thirdly From the Anteprecedents Aequivocum and Univocum AEQuivocum denoteth words of ambiguous and many significations which as Boetius signifies nothing nisi ad quasque res secundum voluntatem significantis applicetur unlesse they be applyed to the thing according to the will of him that declareth or expoundeth them of which the Law taketh notice and giveth these grounds and maximes Nobiliores benigniores presumptiones in dubijs sunt praeferendae Reg. P. C. And Coke l. 4. f. 13. b. Benignior sententia in rebus generalibus dubijs est praeferenda In doubtfull speeches and sentences the more favorable presumption and opinion is to be perferred As if one doth charge another that he hath forsworne himselfe by the Law it is not actionable for it may be he hath forsworne himself in usuall conversation but an action is onely maintainable against him that hath forsworn himself in Court of Record so ibidem f. 21. An Action upon the case was brought for these wordes for my Lands in Dallinson they seek my life adjudged not actionable because he may seek his life upon just cause which are the more favorable constructions So verba accipienda sunt in meliori sensu Hub. f. 106. Coke l. 4. f. 13. Wordes are to be taken at the best for the speaker though some of them cannot stand with that construction As thou art a Theefe and hast stolen a Tree it shall be adjudged of a Tree standing not felled which is not actionable But as it is said there in Hubberd 106. This rule holdeth not in Deeds and Pleas for in those words are taken more strongly against the speaker of which this reason may be given because commonly words in common language proceed of a sudden from choler and heat whereas words in Deeds and Pleas are grounded upon mature deliberation and consideration and therfore in Deeds this is a general ground Ambiguum pactum contra venditorem interpretandum est Reg. I. C. and Ambigua verba contra
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
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
diversi desiderantur actus ad aliquem statum perficiendum plus respicit lex actum originalem when to the perfection of an estate or interest diverse Acts or things are required the Law hath more regard to the originall Act vide ibidem Lamperts Case When a man seised of Lands in Fee-simple or Fee-taile generall taketh a Wife to the perfection of her Dower two things are requisite lawfull matrimony and the death of her husband and if baron and feme levy a fine the feme is barred of her Dower because that the intermarriage and seisin are the fundamentall causes of Dower and the death of the baron onely the execution of it for the beginning is the principal part upon which all others are founded and therfore in such case if baron and feme grant a rent by fine out of the Land or make a lease for years rendring rent to the baron and his heires and then the feme recovereth Dower shee shall hold that charge with the rent and with the terme and the opinion of Ployden in Stowells case 373. is not holden for Law as appeareth by Dyer f 72. and in Damports case Dyer 224. it was adjudged to the contrary 2. H. 4. and now common experience without contradiction is against it and so Littleton in his Chapters of conditions f. 83. holdeth that if the Feoffee upon condition taketh a wife the Feoffee may enter for the condition broken and the reason is for that the Law hath a principall regard to the originall and fundamentall cause and yet it may be said that the title of dower is not consummate untill the death of the husband and peradventure the feme might die before the Baron vide ibidem plura So things are construed according to that which was the beginning thereof as one maketh me sweare to bring him mony to such a place or else he will kill me and I bring it him accordingly this is fellony in him 44. E. 3. 14. b. So if he make me sweare to surrender my estate unto him and I doe so afterwards this is a disseisin to mee 14. Ass Pl. 20. One imprisoned till he bee content to make an obligation at onother place and afterward he doth so being at large yet he shall avoid it by duresse of imprisonment 21. E. 4. 68. b. Outlawry in trespasse is no forfeiture of Land as outlawry of felony is for though the not appearing is the cause of the outlawry in both yet the force of the outlawry shall be esteemed according to the hainousnesse of the offence which is the principall cause and foundation of the processe 3. E. 3. 84. A man and feme sole have a villaine and afterwards enter-marry and the villaine purchaseth Land they shall not have lands by intierties but by moieties joyntly or in common as they had the villaine in the beginning Coke l. 5. f. 47. a. In Littletons case upon the generall pardon of 35. Eliz. Whether upon a bill exhibited in the Star-chamber before the Parliament and processe awarded returnable after the Parliament the suit shall be said to be hanging by bill before the returne or serving of the processe and it was resolved that it was because the bill is origo caput sectae the bill is the beginning and head of the suit Cujusque rei potissima pars principium est origo rei inspici debet Coke com f. 298. b. whereof he saith you shall make great use in the reading of our bookes A disseisor hath issue and entreth into religion by force of which the tenements descend to the issue in this case the disseisee may enter upon the issue because the discent of the issue was by the Act of the father and not by the act of God and the Law respecteth the originall Act which is his entry into religion whereas a descent doth not take away entry unlesse it commeth by death Littleton ibidem An escrowe is delivered by a feme sole if she marry or die yet by relation to the beginning it shall be good 14. 4. H. 2. Lessee for yeares is bound to I. S. to make him the best estate he can and afterwards the reversion falleth to him the Lessee shall be discharged of the Bond if he grantteh the estate he had at the bond making 12. H 8. 5. A stranger abateth after the death of the father the son dieth his wife shall not have dower for this abatement shall relate to the death of the father 21. E. 4. 60. An attainder by Act of Parliament hath relation to the first day of the Sessions 35. H. 8. b. Presentment tempore belli is not good to gaine possession from the right patron though the induction was tempore pacis Coke l. 2. Binghams case and l. 11. f. 99. b. And such an usurpation shall be construed to be in time of War A blow given by one at the time of non sanae memoriae though the party die when he is fanae memoriae it is not capitall Ployd D. Hales case So if a man of non sanae memoriae giveth himselfe a mortall wound and becommeth sanae memoriae and dieth he shall not be felo de se Coke l. 1. Shellies case f. 99. b. A man buyeth certaine beasts in Market which were stolen and selleth them out of the market and the Vendee giveth him a Crowne in earnest and afterwards they are brought into the Market and agreeth to his bargaine and payeth all his mony and also payeth toll for the beasts the property is not changed for the bargaine shall have relation to the first communication Dier f. 99. b. Tenant for life upon condition that if the Lessor die without issue the Lessee shall have see the Lessee entereth into religion and the Lessor dieth without issue the Lessee is dereyned he shall never have fee because at the time of the performance of the condition the fee could not vest in him Ployd f 489. a. In case of attainder by verdict for felony it shall have relation to the time of the fact done 30. H. 6. 5. Lands given in franke-marriage reserving a rent the reservation is void untill the fift degree is passed 26. Ass Pl. 66. One hath a Rent charge going out of his wifes Land the grantee leaseth to the husband and his heires the husband shall not have it but it shall inure to him by way of extinguishment onely as seised in right of his wife 14. H. 8. 6. The wife endowed by the heire is said to be immediately in by the husband and if the husband were a disseisor and the heire in by dissent yet the disseisee may enter upon the wife Littleton The executor refuseth the Administrator may have an action of trespasse for the goods taken out of the possession of the Executor supposing they were taken out of his possession 38. H. 6. 7. A Recovery without an originall is void and judgement given in Chancery without originall is void and an outlawry
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
shewing any license of alienation to discharge himselfe for the purchase of those Lands Exitus acta probat acta exteriora indicant in teriora animi secreta Coke l. 8. f. 146. b. when entry authority or license is given any one by the Law and he doth amisse he shall be a trespassor from the beginning as the Law giveth authority to any one to enter into a common Hostlary or Taverne to the Lord to distraine to the owner of the soile to distraine for Damage-feasant to him in the reversion to view whether wast be made to the commoner to enter into Land to see his Cattell but if he which entereth into a Taverne doth trespasse as if he import any thing or if the Lord who doth distraine for rent or the owner for Damage-feasant work or kill the distresse or he who entereth to see wast doth breake the house or remaine in it one whole night or if the Commoner cut downe a tree in these cases the Law shall adjudge him to enter to that intent and purpose and because the act which demonstrated it is a Trespasse he shall be accounted a Trespassor from the beginning so if a purveyor take my Cattell by force of commission for the hostle of the King it is lawfull but if he sell them in Market the first taking is tortious 18. H. 6. 19. b. Coke l. 9 f. 59. Lambes case Any one shall be convict of a publication of a Libell if he knowing it to be a Libell write but a copy of it unlesse afterwards he can prove that he delivered it to a Magistrate to examine it Coke Com. f. 100. a. The mesne is to acquit the Tenant of any manner of services that any Lord paramount will have or demand of the Tenant and if the Tenant be distrained without default of the mesne yet if the mesne doth not afterwards put his own beasts into the pound instead of the beasts of the Tenant the distress shall be said to be in his default and the Tenant shall recover his damages and costs vide ibidem plura Destinata tantum pro factis non habentur Dod. E. Lawyer f. 143. Things destinated to an end not being applyed thereunto alter their nature and become of another consideration as if a man cut down my Timber Tree and square it of purpose to make a Beam for an house I who am the true owner may seise the same but if it be laid in the building it may not be seised by the owner although the building be not perfected for now it becometh parcell of the house or building but if a man prepare all materialls for building upon his Land and is ready to build therewith but dyeth before it be erected those materialls shall go unto the Executor or Administrtaor and not unto the Heire who should have had them had they been layen in the buildings and it may not be seised by the owner although the building be not perfected for now it becometh parcel of the house or building but if a man prepare all materials for building upon his Land and is ready to build therewith but dieth before it is erected those materials shall go unto the Executor or Administrator and not unto the Heire who should have had them had they been layen in the building because they were destinata tantum quae profactis non habentur intended onely which are not taken for acts Qui adimit medium dirimit finem Coke Com. f. 161. a. Sometimes the Law respects the beginning and sometimes the end and sometimes the means to the attaining it As to turne a streame is running to a Mill is a disseisin to the Mill it selfe and to disturbe one from entring and manuring his Land is a disseisin of the Land it selfe so rescous and replevin is a disseisin to the Lord because by them the Lord is disturbed from comming to his Rent and so also is enclosure because the Lord cannot breake downe Gates or breake downe the enclosures to take a distresse and all these are disseisins after an actuall seisin had and when the rent is behinde otherwise not any of them Finis sinem litibus imponit Ployd f. 357 a. Many times in our Law the name and denomination of a thing is drawn from the finall cause as a Fine used for the assurance of Land dicitur finis quia finem litibus imponit because it putteth a period and end to suits Dod. E. Lawyer f. 143. and therefore as Ployd f. 357. a. Fines have been of very long antiquity and as Long as any Court of Record hath been and were at the common Law the more stronger assurance because they carry in themselves the end of the Law which is repose for the Law hath no other end but repose for it was ordained to cease contention and to make peace as the Statute of 17. E. 1. sheweth that therefore they were called Fines quia finem litibus debent imponere imponunt and therefore in the commencement of a Fine there is concord and peace haec est finalis concordia and the chiefe cause is by which it maketh peace because it bindeth all strangers unlesse it be those which have defect if they enter not their claime within a yeare and a day and Brown said that a Fine for its haughtinesse and for the peace and repose that it bringeth it may be termed finis Legis fructus Legis exitus Legis effectus Legis the end of the Law the fruit of the Law and the effect of the Law and after the Plea of non-claime of Fines was made no bar by the Statute of 34. E. 3. c. 16. because the people in those troublesome times of Warrs could not attend to know the Fines and make their claimes Fines did lose their force and were in effect but Feoffments of Record which was the occasion of great contention among the Subjects of the Realme whereupon the Statute of 4. H. 7. was enacted to reforme them as by the preamble appeareth by which five years after Proclamations made upon the Fine are given to him that right hath to make his claime or pursue his action whereas the common Law gave him but a yeare and a day and also if a Fine be levyed without Proclamations or without so many as the Statute requireth then the Statute of non-claime doth extend to such a Fine Coke Com. 262. a. by which Statute the antient strength of Fines is renewed and made to be as they were heretofore the finall end and conclusion of all strifes and debates as the Statute phraseth it From the effests EVentus est qui ex causa sequitur dicitur eventus quia ex causa evenit the event of a thing is that which followeth the cause and it is called an event because it cometh from the cause Coke l. 9. f. 81. b. Agnes Gores case Who did secretly put poyson into an electuary which one Martine the Apothecary had made with an intent to
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
place and it is not materiall whether any person be there or not and if one place be as notorious as another the Lessor hath election to demand it at which he will and if the Lessor demand it at a place which is not notorious or at the back doore of the house and in pleading alledge a demand of the rent generally at the house the Lessee may traverse the demand and upon the evidence it shall be found for him for that it was a void demand Ibidem and Coke com 201. and 202. b. a. But if a rent be reserved upon the demise to be payable at a place out of the land he that shall take advantage for non-payment of the rent ought to demand the rent at the place where it is limitted to be paid and therefore the opinion in Kelwellies case Ployd f. 70. that he in the reversion may enter for the non payment of such rent without any demand made was utterly denied by the whole Court Ididem and Coke com 202. a. But if there be no place appointed where the rent is to be paid there the rent is to be tendred on the Land Coke 210. a. b. Because it issueth out of the Land but otherwise it is in such a case of a Feoffment or Mortgage for it is not sufficient for the feoffor to be upon the land there ready to pay the money to the feoffee at the day set but he must seek the feoffee if he be then in another place within the Realme of England and so it is if a man be bound in an obligation of twenty pound upon condition that he pay to the obligee at such a day 10. l. that then c. The obligor ought to seek the obligee if he be in England and at the day appointed tender the ten pound otherwise he shall forfeit the twenty pound Coke com ibidem and therefore as he adviseth it shall be good and a sure way upon such a feoffment or mortgage to appoint a speciall place where the money shall be paid and the more especiall it is the more better it is Coke com f. 211. b. And so is it also upon an obligation Ployd f. 71. a. and b. If the obligee be in his own house and the obligor come to him there and tender the mony he shall not be a trespassor for his comming there for in that by the taking of the obligation the obligee was assenting that the obligor should pay him the ten pound by necessity of reason he ought to be assenting to come to him to offer unto him the 10. l. for to come to his person precedeth the offer which he was assenting to therfore ex consequenti he shall not punish him for that thing to which himselfe was agreeing But if he had entred into the house of another man there he shall be a trespassor to the said man if the same man will take him so vide plura ibid. Kedwellies case Exception Though a common person in reversion cannot enter for non-payment of rent without demand yet if the King make such a Lease for yeares rendring rent with such a condition ut supra the King shall take advantage of the condition without any demand because the law which alwaies observeth decorum and conveniency appointeth the subject to attend upon his soveraigne and in such case to make the first act though it be in case of condition which trencheth upon the destruction of his estate But if the King granteth the reversion over his grantee shall not take advantage of the condition without demand for it is a personall prerogative annexed to the person of the King and not in respect of the nature and quality of the land Coke l. 4. f. 23. A So the King maketh a Lease for yeares rendring a rent payable at his receipt of Westminster and after the King granteth the reversion to another and his heires the grantee shall demand the rent on the Land and not at the Kings receipt at Westminster for though the law without expresse words doth appoint the Lessee in the Kings case to pay it at the Kings receipt yet in case of a subject the law appointeth the demand to be on the land Coke com f. 201. b. and Coke l. 4. f. 72. 73. Burroughs case vide ibidem plura Circumstantia loci est testis veritatis certitudinis Ployd 393. a. The place is materiall and is a circumstance and witnesse of truth and certainty As if a man will plead the Letters Patents of the King bearing date at Westminster and indeed they did beare date at another place it seemes in 38. H. 6. by Choke f. 34. by Littleton f. 36. and by Redsham Moile and Prisot f. 37. That for the variance of the place it failed and the Plea shall be adjudged against him So if the King give authority to one to arraigne one upon indictment taken against him at Dale in such a County when indeed the indictment was taken at another place in the same County he cannot arraigne him for the place declareth the certainty what indictment the King intended for it may be there were two indictments of the same matter and thing and the one of them taken in one Village the other in another and by it the expresment of the Village declared the certainty of it Dier 105. a. An outlawry was reversed because it was ad comitat Lancaster ibidem tent and did not say at Lancaster or such certain place to which ibidem might be referred Ployd f. 191. a. The place must be shewne by the Plaintiff where the things were done because the visne should come thence if the things be traversed as H. 6. E. 4. 11. Brooke lieu 55. The place ought to be shewn in the count in debt upon an obligation where the obligation was made and M. 39. H. 6. 32. Brook lieu 45. If an attornement be alledged the place ought to be pleaded where it was made and in such like things of effect that may be traversed the place ought to be shewne where the thing was done for the certainty of the triall and f. 149. b. the place ought to be shewne where the attornement was made if the attornement bee pleaded 15. H. 7. 24. Coke l. 6. f. 47. Dowdales case when the place is materiall as when it is parcell of the issue there the Jurors cannot find the point in issue in any other place for by especiall pleading the point in issue is restrained to a certaine place but when the place is named onely for conformity and necessity and when it is parcell of the issue as in the case of 10. Eliz. 271. in debt against the heire he pleaded rieâ— by descent generally in that case the Plaintiff cannot reply in such generall manner for then no triall can be had of it but in case for conformity and necessity of a triall he ought to name a certaine place as there he did in the Parish and
Laborne in his house being one of the Seriants of the City of London Frost cometh to Laborne with a Warrant from the Sheriffs to arrest the said â— upon the Capias Utlegatum which he utterly refuseth but suffereth him to goe at large upon an action of the case brought against the Sheriffs supposing that the Sheriffs arrested him and suffered him to goe at large the Defendants pleaded that they did not suffer him to goe at large and judgment was given for the Plaintiff and the verdict warranted well the count for in judgement of Law the Sheriff and his Serjeants are words equipollent amount to so much and is all one as if the Sheriffs had arrested the said B. vide ibidem plura A Writ is to the Sheriff and he returneth virtute praecepti he hath done well for it is equipollent virtute brevis 11. H 6. 16. In a Writ it is said quam clamat esse jus this equipolleth with a Fee-simple and therefore in the subsequent part of the Writ if he instanceth in a lesser estate as ex dono for life the Writ shall abare 39. H. 5. 38. Upon an Enditement for celebrating Masse contra formam Statuti 1. El I was holden that under this terme Minister a Preist was included because a Preist is bound to celebrate and minister the holy communion c. and also it was holden by all that the terme Clerk is sufficient to prove him a Preist or a Minister Dyer f. 203. b. Coke l. 5. f. 4. b. Verus antiquus redituus the true and antient rent is not to be understood of the quality incident to it but of the quantity of the rent for that is the effect and substance of the thing reserved as if the antient reservation was of rent to be paid in Gold and the novell reservation was to be paid in Silver or if a quarter of Corne was antiently reserved and now the lease is made rendring eight bushells of Corne it is all one for the Law respecteth not the formes of words or their quality but the substance and effect of the matter parum differunt qui re concordant and they differ little which agree and equipoll in substance If one maketh his Will and committeth the Administration to one by it he shall be Executor because it is all one in substance 3. H. 6. so by the grant of a Church the advowson shal passe 7. E. 3. 15. One granteth the nomination of an Advowson Habendum the advowson the Habendum is good for it is the same thing so one granteth the remainder whereas he had a reversion it is good enough to make the thing passe 6. E. 6. Ante 134. vide Ployd 157. b. If a man lease to one an acre of Land for life reserving to himselfe the herbage the reservation is void because he hath leased the same thing in substance and the profits of the Land and the Land it selfe are all one 38. H 6. 34. Words of substance and not usuall are equivalent to words of substance and usuall Ployd 140. b. As if tenant for life and his Lessor make a Feoffment in fee it is the Feoffment of the Lessee for life and the confirmation of the Lessor though there be not a word of a confirmation in it and if tenant for yeares and the Lessor make a Feoffment in fee it shall be the livery and Feoffment of the Lessor and the surrender of the Lessee and yet there was not one word of surrender And if a commoner maketh a deed to the tenant of the Land by which he renounceth the common unto him it shall enure as a release because the words are equivalent to a release So if Land be leased by Indenture for yeares and Covenants made to render and pay for the tenements such a summ it is all one as a reservation of a rent and if the Lessor say I wil have twenty pound rent and the Lessee agree or if the Lessee say I will give twenty shillings rent and the Lessor agree it is a good reservation of a rent so if a man be bound by Obligation to en feoffe I. S. and he maketh a lease for years and a release in fee he hath performed the condition because they are all one vide ibidem Yet words of art may not be supplyed by equivalent and equipollent words though they beare the same sense and substance as in an Enditement of murder voluntarie ex mulitia praecogitata interfecit is not sufficient but the word murder avit must be so in an Enditement quod quoddam tormentum in H. L. exoneravit dans eidem H.L. cum pelletto plumbeo predicto vulnus mortale Dans ei vulnus mortale c. is not sufficient but it should have been percussit which is the word of art Coke l. 5. f. 222. b. Longes case And the reason of this is given by Coke in his Preface to Littleton that words of art are so apt and significant to expresse the true sense of the Laws and so woven into the Laws themselves as it is in a manner impossible to change them neither ought legall termes to be changed SECT 4. From naturall Philosophy NExt to Logick by whose principles as by many hands we are conducted to the knowledge of the Lawes and other Sciences naturall philosophy is to be placed which is the prime and principall part of other Sciences for by the knowledge of naturall things we are instructed to observe the diversity of the actions and manners of men according to the difference of climats and various conditions of them of which any one ignorant wil be altogether unable to judge of civill and aeconomicall affaires and therefore as Mr Ployden Have the Philosophers searched so deeply into the law of nature in their lawes and writings and for the government of the people by them given precepts to follow the rule of nature and have taken nature to be as it were a foundation to all lawes Neither have the Founders of our lawes been remisse in searching out the law of nature neither were they void of the understanding of it for their lawes argue the contrary and shew that those who made them were of more great and profound judgement and as well learned in the law of nature as in all reason and in the Law of God also for nothing in our Law is ordeined contrary to nature or contrary to reason or contrary to the Law of God but according to them all Ployd 304. a. and b. And according to it hath the law established diverse grounds and maxims 1. Quae rerum natura prohibentur nulla lege confirmata sunt Reg. I. C. Marcellus Lawes which are contrary to the Law of nature lose their force and are no lawes at all Finch Nom. f. 75. Such was that of the Egyptians to turne women to Merchandise and Common wealth affaires and men to keep within doores and of the Thracians who counted idlenesse an honest thing and stealing
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
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
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
in Law he is no issue for he that is born of unlawful copulation is not to be accounted among children so it is if a man make a lease for life to B. the remainder to the eldest issue male of B. to be begotten of Jane S. whether the same be legitimate or not legitimate B. hath issue a bastard on the body of Jane S. this Son or issue shall not take the remainder because he is no issue ibidem and for the same cause if after the birth of the issue B. had married I. S. so as he became bastard eigne and had a possibility to inherit yet he shall not take the Remainder Ibidem And though a bastard having gotten a name by reputation may purchase by his reputed and known name to him and his heires yet he can have no heir but of his body and if he hath no issue the Land shall escheate if he purchase any Finch Nomot f. 130. The Pope Emperor and Prince himselfe cannot legitimate a bastard to enjoy any benefit of our Law the Parliament hath onely that power Com. of England f. 242. And it is related by Bodin l. 2. de repub That one Ieane Navarre calling himselfe Count Palatine by virtue of the power he said he had of the Pope made many bastards of France legitimate for which he was condemned by arrest of Parliament as laesae majestatis reus wherein their Law seemeth to accord with ours for it is onely in the power of the King and Parliament to make a bastard legitimate but the King may dispense with a bastard to be a Preist Davis Reports f. 37. a. The civill Law depriveth the adulterous issue of all benefit the Ecclesiasticall Law alloweth things needfull for sustentation but by the Laws of this Realme one may give or devise all to a bastard Swinborne testaments f. 230. And by our Law if a grant be made to a bastard by the name of him who is supposed to engender him it is good if he be known by that name so if a remainder be limited to Richard the Son of Richard Marwood it is good although he be a bastard so in case of purchase a bastard eigne in respect of the subsequent marriage is capable of his reputed Fathers guifts for though by the civill Law his right of Primogeniture is remitted by the subsequent marriage according to the rule subsequens matrimonium tollit peccatum praecedens yet by the common Law he is in it rejected and hee made uncapable of any inheritance by descent though in case of purchase it may be sufficient as 39 E. 3. Richard Thompson having issue by one Ioane before marriage one Agnes and after inter-married with Ioane and made a Feoffment in fee and re-taked the estate unto himselfe for life the remainder to Agnes the Daughter of the said Richard and Ioane and agreed that it was a good remainder without any averrement that shee was known to be their Daughter but it was there objected that a bastard is not their Daughter in Law and therfore the remainder void but Finch den gave the rule and said it is found that the Daughter was borne before the espousalls so that by their espousalls after shee is their Daughter so as though by the common Law shee was not their Daughter yet in so much that she hath colour by the Ecclesiasticall Law which saith that subsequens matrimonium tollit peccatum praecedena it is sufficient in case of conveyance to make the remainder good Coke l. 6. f. 65. a. vide ibidem plura Dominum a possessione cepissi dicitur Reg. I. C. paulus Dominion is said to have his begining from possession and that jure naturali for we gaine Dominion of some things by the Law of nature that is as Cicero hath it veteri occupatione ut qui quondam in vacua venerunt by long occupation and possession of those things into which being void we have entred which no man can take from us but by injury and therefore doe the Civilians derive possession a pedum possessione from the fixing our feete upon any particular thing and by long possession is turned into right longa enim possessio est pacis jus Bracton f. 50. Long possession is the right of peace And therefore in the case of a Charter of Feoffment if all the witnesses to the Deed be dead as no man can keepe his witnesses alive and time weareth all things then violent presumption which standeth for a truth is continuall and quiet possession for ex d uturnitate temporis omnia praesumantur solenmiter esse acta Glanvill for by long continuance of time all things are presumed to be solemnely acted Coke com f. 6. b. And therupon Bracton giveth the rule Longum tempus longus usus quiexcedit memoriam hominum sufficit pro jure Long possession long occupation which doth exceed the memory of man sufficeth for a right l. 4. f. 230. But what measure of time maketh such a right by which a Fee-simple may be attainted diverse have differed in opinions some judging the same to be according to the computation of years from the time of King Henry the first to the Statute of Merton which amounteth to seventy six yeares and others have limited it to an hundred years which according to the civil law is longissimum vitae hominum tempus the longest time of the life of men but the true measure of it according to Mr. Littleton is where things have been used so long as the memory of man cannot remember the contrary that is either by the knowledge and memory of proofe or by record or sufficient matter in writing so as if there be any sufficient proofe of record or writing to the contrary albeit it exceedeth the memory or knowledge of any man living yet is it within the memory of man Coke com 115. a. And as by the course of nature time is the measure and consumer of all things Nullaque res majus tempore rebor habet There nothing is which hath more strength then time So doth Art and Law imitate nature which giveth unto it such power and authority as to change to raise to alter and to establish titles wherein the Civill and the common Law do square for by the civill Law there is required a just title bona fides and continuall possession to make a title of prescription but the common Law onely requireth continuall possession and that naturalis possessio ad praescriptionem sufficit naturall possession sufficeth for a prescription As if a man prescribe to have a rent and likewise to distraine for the same it cannot be avoided by pleading that the rent hath allwayes been paid by coertion or that it began by wrong Coke com 114. a. So Jeptha pleaded prescription against the Ammonites these Lands saith he have we possessed these 700. yeares And the reason why this long usage and prescription was brought in to be of the force and strength to make a right
words contrary to the simple intent as Tully saith in his Offices is calumnia quaedam ninis callida malitiosa Juris interpretatio ex quo illud summum jus summa injuria a kind of a calumny and malitious interpretation of the law from whence that saying proceeded the rigor of right is the extremity of injury As he putteth the example of one had made a truce for 130. daies with his enemy and in the night he plundered and depopulated his possessions because he said the truce was for daies and not for the nights which Cicero accounteth meere injury and injustice and admonisheth men to avoid the like interpretation of the law and to observe the intent of the words and certainly words are but testimonialls of the intent and therefore Ployd f. 107. b. It is said it is the offices of Judges to take and expound the words as the common people doe use them to express their intent according to their intent As a Lease was made for life and that after his decease the tenements redibunt to a stranger it shall be taken as a remanebunt because to that purpose it was there used and therefore by 18. E. 3. f. 28. It shall be taken by way of remainder So a lease for life the reversion to a stranger shall be taken as a remainder for the reason abovesaid 30. M. 1. ante 157. vide ibidem plura in Hills case And so Ployd f. 291. a. Where a covenant cannot be performed according to the words it shall be performed according to the intent as neere as may bee as in the case of Littleton where a man maketh a feoffment upon condition that the feoffee shall make an estate in speciall taile to the Feoffor and his wife and the heires of their bodies if the Baron dieth before the estate made the estate shall be made as neere to the condition as may be to wit to the feme for life without impeachment of wast the remainder to the issues in taile according to the first limitation and if the feme be dead then the feoffee ought to give the lands to the issues and the heires of the bodie of his father and his mother engendred If the words be performed and not the intent the agreement is not performed Ployd f. 291. b. according to the rule of the civill law leges non ex verbis sed ex mente sunt intelligendae lawes are not to be understood and construed by the words but by sense and meaning of the parties as where the Defendant was obliged upon condition that if his feoffees of his Mannor of W. should grant to the Plaintiff an annuall rent of forty shillings out of the said Mannor that then c. and he had three feoffees and two of them granted to the Plaintiff the rent There the words of the condition were performed for the feoffees had granted the rent and yet he had not performed the condition for all the Justices there held that all the feoffees ought to have granted the rent and so it should be sure for there the third might have the land by survivor and he might avoid the rent and also more then two parts of the Mannor were not charged with the rent and so the intent is not performed though the words be M. 22. H. 6. f. 10. So if a man be bound to enfeoff me of the Mannor of D. and he maketh a feoffment ro another of parcell of it and then enfeoffeth me of the Mannor he hath performed the words but yet he hath not performed the intent which was that I should have had all the Mannor as it then was H. 3. H. 7. 4. So a remainder was limited to B. Si ipse vellet in-habitare residens esse if he would dwell and bee resident on the land during the terme there it is taken that if he was resident one week during the terme he had performed the words of the condition but not the intent for the intent was that hee should be resident all the terme 4. E. 6. ante 23. So an Abbot was Parson Emparsonee of a time c. and he had annuity for the time of which no memory runneth in right of the Parsonage and he as Abbot without naming himselfe Parson brought a Writ of annuity and counteth upon a prescription in him and his predecessors Abbots and the prescription traversed and found for the Plaintiff there every word of the Verdict is true and yet attaint lay against the Jury because he brought the Writ in the name of the Abbey and so claimed the annuity whereas he was not seised by that forme but as Parson and for that he did not claime as Parson they ought not to have found the issue with him and so the words of the Verdict and the intent of the Verdict did not agree in one M. 10. E. 4. f. 16. Ibidem in Chapmans case It is not requisite alwaies that the agreement shall be performed according to words because the intent is performed which is the principall point of the agreement Ployd f. 295. a. b As if a man be bound to pay a lesser summe upon a day certaine if I pay the summe before the day the condition is performed H. 10. H. 7. 24. So if the condition be in a Mortgage that I pay the money at such a place if I shall pay it at another place and the Mortgage accept of it it is well enough for the value is the effect So if a feoffment be made upon condition that if the feoffee doe not pay the Feoffor such a summe at such a day that then the feoffor shall enter If the feoffee before the day make a feoffment over and at the day doth not pay the summe there the second feoffee at the day may tender and pay the summe though the agreement was no other but that the first feoffee shall pay the summe Litt. vide ib. plura If a man make a feoffment on condition to enfeoff two in fee at such a time and before the time one dieth the feoffment ought to be made to the survivor and his heires onely for the intent which appeareth in the condition Ployd f. 345. 4. H. 7. f. 127. Every one who groundeth an Act with discretion hath an intention in the inception and neither beginneth any thing but to some end and in the progression hath the same intent and so in the consummation so as the same intention is the cause of every part and therefore the intention is principally respected in all humane acts and especially in those which concerne the disposition of our estates and in feoffments and grants A feoffment by deed of a Mannor with an advowson appendant and no livery made the advowson passeth not yet an advowson may pass without livery but the intention and the meaning was that the Mannor and it should pass together Finch Nomot 58. A bargaine and sale of Land and a reversion by deed not enrolled the reversion passeth
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
so long as he hath no understanding Lastly he that by his own vicious act for a time depriveth himselfe of his memory and understanding as he is that is drunk Coke com 147. a. Coke l. 4. 124. b. And for the three first sorts of mad men the Law is that they shall not lose their lives for felony or murder because they want reason and understand not what they doe neither can the punishment of a mad man who is deprived of reason and understanding be an example to others And therefore as Ployd f. 19. a. If a man of non sanae memoriae kill another although he hath broken the words of the Law yet he hath not broken the Law because he had not any memory nor understanding but meere ignorance which cometh unto him by the hand of God and therefore it is called unvoluntary ignorance to which the Law imputeth the act done because no default iâ— in him and therefore he shall be excused in that he is ignorant by compulsion and such an act is called and termed ex ignorantia to wit in that involuntary ignorance is the cause and God provided a speciall remedy that he who doth such a thing by such ignorance shall not be punished for it as Deut. 19. if a laborer be at labor with an hatchet and the head of the hatchet flyeth off and killeth another that such a laborer shall not be put to death because he did it by un-voluntary ignorance but if a man breake the Law by un-voluntary ignorance there he shall not be excused As if at man be drunk and kill another this is Felony and he shall be hanged for it and yet he did this by ignorance for when he was drunk he had neither memory nor understanding but because that ignorance came unto him by his own act and folly and he might resist this ignorance he shall not be priviledged by it because he is voluntarius daemon Coke com f. 247. and as Aristotle saith is worthy of double punishment because he hath dâ—ubly offended to wit in being drunke to the ill example of others and also in doing of the act and this act is called and said to be done ignoranter to wit that he is the cause of his owne ignorance and so there is a diversity of a thing done ex ignorantia ignoranter Ployd ibidem And Coke com f. 247. a. Omne crimen ebrietatis incendit detegit and what hurt or ill soever he doth in his drunkennesse doth aggravate it and that as well in case touching his life his Lands his Goods or any other thing concerneth him Coke l. 4. f. 125. Also for the same reason non compos mentis cannot commit petit treason as if a wife non compos mentis slay her husband as appeareth 12. H. 3. Tit. forfeiture 33. But in some cases non compos mentis may commit high Treason as if he slay or offer to slay the King this is high Treason for the King is caput Reipub the head and safety of the Common-wealth and from the head good health is conveyed to all and for this cause their persons are so sacred that none ought to offer them violence but he shall be reus laesae majestatis guilty of high Treason Coke l. 4. f. 124. b. And likewise for the same reason many are the priviledges which the Law giveth to one who is not compos mentis and his heires as if an idiot or non compos mentis maketh a Feoffment in person and dyeth his heire within age he shall not be in ward and if he dyeth without heire the Land shall not eschcate but if he make a Feoffment by Letter of Attorny although the Feoffor can never avoid it yet as to others in judgment of Law the State was void and therefore in such case if the heir be within age he shall be in ward and if he dyeth without heires the Land shall escheate and that is the true reason of the bookes in 7. H. 4. 5. and 7. H. 4. 12. And so is there a great diversity between an estate made by the person of a mad man and by his Attorny Coke l. 4. 125. Also an idiot in an action brought against him shall appeare in proper person and he that can plead best for him shall be admitted 33. H. 6. 18. otherwise it is of him who becometh non compos mentis for he shall appeare by his guardian if he be within age and by an Attorny if be be of full age Coke ibidem f. 124. b. So if a man of non sanae memoria â—ath cause to enter into tenements and a descent is had in his life during the time he was of non sana memoriae and then dyeth his heire may enter upon him is in by descent Littleton and though Littleton there saith that the Ancestor who had the same title could not enter during his life yet in case of a bar of his right he may As if a man of non compos mentis be disseised and the disseisor levieth a fine in this case at the common Law though the yeare and the day be passed yet he that was non compos mentis shall not be bound by it but that he might well enter Coke l. 4. f. 125. vide ibidem plura But if an Idiot or a non compos mentis by accident or qui lucidis gaudet intervallis maketh a Feoffment in fee he shall in pleading never avoid it by saying that he was an Idiot c. at the time of the Feoffment because it is a maxime in the common Law that no man of full age shall be received in any Plea by the Law to disable himselfe contrary to the opinion of some that he may avoid his own act by Entry or Plea and others that he may avoid it by Writ and not by Plea and others as Fitzherbert in his Writ of dum fuit non compos mentis that he may avoid either by Plea or by Writ but Littleton here is of opinion that neither by Plea Writ or otherwise he himselfe shall avoid it and herewith the greatest authorities of ouâ— Books doe agree and so was it resolved in Beverlyes case Coke l. 4. Though this Maxime holdeth not in criminall causes as before hath been said Coke com f. 247. Yet doth not the Law leave one who is non compos mentis destitute of remedy in this case but that upon an office found for the King the King shall avoid the Feoffment of him who is of non compos mentis for the benefit of him whose custody the Law giveth to the King and all that he hath for the King is bound by the Lawes to defend his Subjects and their Goods and Chattells Lands and Tenements as Fitzherbert saith N. B. 232. and therefore the King of right ought to have and to order him his Lands and Goods and this was by the common Law as appeareth by Britton f. 16. who writ in the fifth yeare of
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
Act in Law respecteth equity and will never charge any one with more or lesse then in reason and equity it ought For as Bracton saith jus respicit aequum If two four or more being severally seised in land joyn in a Recognizance all their lands must be equally extended An house that hath Copyhold and other lands usually occupyed with it is let for yeares with the lands appertaining yet the Copyholds passe not without speciall naming for then it were a forfeiture of them for the Law construeth all things according to equity and constraineth a generall Act if there be any mischief or inconvenience in it Finch Nomot f. 54. So a Corody granted to one and his Servants to sit at his Messe he cannot bring a Servant that hath some stinking and noisome disease And if Estovers be granted out of a Mannor the Grantee shall not cut down Fruit-trees So a Common granted to one for all his Beasts he shall not have Common for Goats and Geese nor other Beasts not Commonable Finch ibidem It is no Trespasse for a man to beat his Apprentice which is but reasonable correction for equity moderateth the strictnesse of the Law Finch Nomot f. 57. No more is it to carry away a mans Wife against his will to a lawfull end as to sue a divorce against her husband or to have the Peace of him before a Justice of Peace So if the Lessor commeth upon the ground it shall be intended that he came to see if Wast were done for equity turneth all to the best and maketh every Act to be lawfull when it is indifferent whether it be lawfull or not Finch Nomot f. 57. And if the Disseisee come it shall be taken that he meant to be remitted And in an Action of Trespasse if two Issues be joyned triable in two Counties as one in London and another in Middlesex without saying which of the Issues it should try this shall be taken to try the Issue in Middlesex onely for so the Venire facias is lawfull and not in both Counties which is against Law and therefore it is a discontinuance in the City of London and no discontinuance Finch ibidem And such a desire hath the Law to be ruled by equity as that it will feigne a thing in shew and colour whereby the reall right and equity of the thing may more certainly be found according to the ground Lex fingit ubi subsistit aequitas The Law faigneth where equity subsisteth Coke l. 10. f. 90. a. As the reason why the Law will give a colour in a Writ of Entry Sur-disseisin Writ of Entry in nature of Assise Trespass c. is that the Law which preferreth and favoureth certainty as the Mother of quiet and repose to the intent that either the Court shall adjudge upon it if the Plaintiff demurr or that a certaine Issue may be taken upon a certaine point requireth that the Defendant when he pleadeth such a speciall Plea that yet notwithstanding the Plaintiff may have right the Defendant shall give colour to the Plaintiff to the end that the plea shall not amount to the generall issue and so to leave all the matter at large to the Jurors which shall be full of multiplicity and perplexity of matter and though the colour be but a fiction yet the Law feigneth where equity subsisteth So f. 40. a. Common Recoveries are fictions in Law and for the equity that in them is transacted they are not onely allowed by the Common Law for the intended recompence but warranted by statutes for their equitable use And therefore the statute of 7 H. 8. c. 1. reciteth that divers as well Nobles as Commons have suffered Recoveries against them of divers of their Mannors for the performance of their Will for assurance of Joyntures to their Wives c. The same act in approbation of common recoveries giveth remedy to such recoveries in divers cases And in Dr. Student c. 26. it is determined that common recoveries do bind as well in conscience as in Law for semper in fictione legis subsistit aequitas And by the statute of 23 Eliz. c. 4. it is provided that for the avoiding of danger to common assurances in lands and for the advancement of common recoveries that not any common recovery shall be avoided by any want of form in words and not in matter of substance vide ibidem plura in Mary Portingtons case So Co. l. 11. f. 51. a. If one disseise me and during the Disseisin he cutteth down Trees Grass or the Corn and then I re-enter I shall have an Action of Trespasse against him vi armis for the Trees Grass and Corn for after my regresse the Law as to the Disseisor and his Servants supposeth that the Frank-tenement hath alwaies continued in me but if my Disseisor make a Feoffment in fee gift in tail lease for life or yeares and after I re-enter I shall not have trespasse vi armis against them who come in by Title for this fiction in Law that the Frank-tenement hath continued alwaies in me shall not have relation to make him that cometh in by Title to be a wrong doer vi armis for in a fiction of Law alwaies equity existeth vide ibidem plura And by these cases it appeareth that equity hath a vigorous use in the exposition of the Common Law But this bright Star more cleerly shineth and sheweth forth its lustre in the construction of Statutes for as Co. Comm. f. 24. b. equity is a construction made by the Judges what cases out of the letter of the Statute yet being within the same mischief or cause of the making of the same shall be within the same remedy that the statute provideth and the reason hereof is for that Law-makers could not possibly set down all cases in expresse termes and Co. Com. f. 271. b. when Lands and Tenements are conveyed upon confidences uses and trusts if any question groweth upon them they are to be ruled and decided by the Judges of the Law for they are within the intendment and construction of the Lawes of the Realm Rhet. l. 1. c. 3. And therefore Aristotle well adviseth Legislators and Makers of Lawes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to design and determine of things and to leave as little as may be to the descretion of the Judges But as Co. lib. 6 f. 40. b. Rerum progressus ostendâ—nt multa quae initio praecaveri provideri non possint The progresse and proceeding of things do declare and shew many things which at the beginning could not be heeded or provided for and therefore is equity required to replenish and fill up those chincks and deserts which seem to be in the letter of the Law which is therefore accordingly thus defined Aequitas est verborum legis directio sufficiens cum una res solummodo cavetur verbis ut omnis alia in aequali genere iisdem caveatur verbis Equity is a sufficient direction of the words
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
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
Quare Impedit 54. but at this day it is remedied by the act 1 E. 3 c. 12. by which it is declared that because that many people may be grieved for it that Lands and Tenements held in chief of the King as all those which hold by grand Serjanty are and alien without leave have been held as forfeited hereafter in such case let a reasonable fine be taken So since that Statute at all times when Lands holden by grand Serjanty have been aliened without licence a fine hath been taken and no seisure ever made for the forfeiture and therefore no forfeiture to be taken for Custome is the best Interpreter of the Law vide etiam L. 10. f. 70. b. Consuctudo manerii est observanda Co. com f. 63. a. consuetudo loci est observanda Brac. l. 2. f. 76. l. 4. f. 28. The custome of the Mannor and the custome of the place is to be observed for there are different customes in many Mannors and places and the customes of one Mannor in some particulars commonly varieth from another And these diversities of customes have grown by reason of the severall Nations who have had government over this Kingdome Britans Romans Saxons Danes Normans which have left part of their Language and part of their usage which difference of usage and custome is to be observed in every place and Mannor for what a Copyholder may or ought to do or not to do the custome of the Mannor must direct it and if there be no custome to the contrary wast either premissive or voluntary of a Copyholder is a forfeiture of his Copyhold Co com f. 63. a. If a Copyholder for life surrender to another in fee it is no forfeiture for that passeth by surrender to the Lord and not by Livery And Copyhold Estates shall not have the collaterall qualities that the estates of the common Law have without especiall custome for the custome of the Mannor is to be observed Coke l. 1. f. 22. a. 23. a. vide ibidem plura f. 28. b. Coke l. 6. f. 67. a. In a common recovery which is had by agreement and consent of parties of acres of land the acres shall be accounted according to the customable and usuall measure of the Country and not according to the Statute De terris mensurandis made in the 33 of Ed. 1. Sir John Buntings case 1 Eliz. So if a man bargain and sell so many acres of wood they shall be measured according to the usage of the Country and that is according to twenty foot to the Rod and not according to the said act for the custome of tho place is to be observed 47 E. 3. 18. Coke l 10. 140. a in Kighleys case It was resolved cleerly that the severall Commissioners of Sewers throughout England are not bound to pursue the Lawes and Customes of Romney Marsh but in case where any particular place within their Commission have such Lawes and Customes as Romney Marsh hath there they may pursue them for the custome of the place is to be observed Consuetudo vincit communem legem coke l. 4. f. 21. Custome overcometh and mastereth the common Law and will not alwaies be ruled by its grounds for a custome and usage of time whereof the memory of man runneth not to the contrary may create and consolidate Inheritances Coke comm f. 185. b. If a man be seised of an house and possessed of divers Heir Looms that by custome have gone with the house from Heir to Heir and by his Will deviseth away the Heir-looms this devise is void for the Wil taketh effect after his death and by his death the Heir looms by ancient custome are vested in the Heir and the Law preferreth the custome before the devise 1 H 5 Executors 108. And so it is if the Lord ought to have an Heriot when his Tenant dieth and the Tenant deviseth all his goods yet the Lord â—â—all have his Heriot for the reason aforesaid And it hath been anciently said that an Heriot shall be paid before a Mortuary wherein the Lord is preferred because the Tenure is in him Co. ibidem Ployd f. 36. b. Whereas the Statute of 1 R. 2. c. 12. doth ordain that the Warden of the Fleet shall not suffer any one who is in execution to go out of Prison by main-prize bail or baston yet it is taken by equity of the said Statute thâ—t if any other Goaler who lets such a one in execution to go out of prison with mainprize bail or baston that it shall be said to be an escape But notwithstanding that it extendeth to all other Goalers so fully as though it had been expressed by plain words yet those of London use to let such go at large with baston in any place within their jurisdiction and shall not be judged an escape in them and the reason of that is not because the statute in equity doth not extend to them but the reason of it is their prescription in that point and all their customes and prescriptions are confirmed by the Statutes by which they may prescribe against the equity and words of the statute which are contrary to their customs and prescriptions as against the statute of Silva caedua and to hold Leet at other times then the statute appointeth and such others ibidem Obtemporandum est rationabili consuetudini tanquam legi coke l. 4. 38. b. Littleton Sect. 170. consuetudo ex certa causa ratienabili usitata privat communem legem We ought to obey a reasonable custom as a Law and a custom used upon a certain reasonable cause depriveth or over cometh the common Law but a custome introduced against reason is rather an usurpation then a custome coke comm f. 113. a. and it is a Maxime in our Law that all customs and prescriptions which be against reason are void coke comm f. 140. a. As if the Lord of a Mannor prescribe a custome in generall that every Tenant in his Mannor that marrieth his Daughter to any man without the licence of the Lord shall pay a fine and have paid a fine to the Lord for the time being this prescription is void for none in such case ought to pay fines but Villains vide ibidem plura So if the Lord of a Mannor do prescribe that for the time being he hath used to distraine Cattell were upon the demeans of his Mannor for Damage-feasant and the distresse to retain till fine were to him for damages at his will this prescription is void for it is a Maxime in Law Aliquis non potest esse judex in propria causa no man can be a Judge in his own case ibidem 141. a. And therefore a Fine levied before the Bayliffs of Salop was reversed because one of the Bayliffs was a party to the fine because he cannot be a Judge and a party coke ibidem So a custome that the Lord shall take for Heriot the beast of a stranger levant and couchant upon the
sub eo ipse sub nullo nisi tantum sub Deo Bract. l. 1. c. 8. The King is the Vicar and Minister of God upon earth every one is under him and he under none but onely under God and therefore the Lands which are in the Kings possession are free from tenure for a tenant is he which holdeth of some superior Lord by some service so as the King cannot be a tenant because he hath no superior but God for as Coke l. 8 f. 118. It would be against common right and reason that the King should hold of any or doe service to any of his Subjects and therefore all Lands holden of him mediately or immediately Co. com f. 1. and for which reason Cowell thought it not so proper in the Kings case to say that he is seised in dominico suo ut de feodo as if feodum in our Law was taken as it is in the fendall Law onely for the Lands held in Services whereas feodum as Bracton Britton Fleta and Littleton tels us idem est quod haereditas Davis case of Tenures f. 30. Neither can the King be a Joynt-tenant with any though it be of land or other things that he had in his body naturall for none can be equall with him And therefore if two purchase lands to them and their heirs and one be made King they are no more Joynt-tenants but Tenants in Common 3 Eliz 339. Nay Acts of Parliament do not bind him unless they concern the Common-wealth or he be specially named 4. E. 4 21. 1 Eliz. 223. And no man can declare against the King but he must sue by way of Petition Ployd f. 241. b. 18 Eliz 498. He hath the property of all Goods that are nullius in bonis and shall have all Tythes out of Forrests and places out of any Parish for rex est persona mixta cum sacerdote In a Writ of Error upon false Judgment given for the King no Scire facias shall go forth ad audiendum errores for the King is alwaies in Court and that is the cause that the form of Entry is in all Suits for the King in the name of his Attorney generall F.N.B. 21. b. Rex semper praesumitur attendere ardua negotia regni pro publico bono omnium Coke l. 5. f. 56. a. It is alwaies presumed that the King doth attend the weighty and hard things of the Kingdome for the publick good of all And therefore have the Grants of the King a more beneficiall interpretation then the Grants of the Subject that may attend their private Affaires which are alwaies taken more strongly against them As if the King do grant lands to I.S. and his Heirs and in truth I. S. is the Kings Villain that shall not enfranchise the Villain by Implication The same Law is of an Alien born 17. E. 3. 39. The Advowson of Pravondry holden of the King was aliened to an Abbot and his Successors and that the Successors shall hold the Provandry to their own use The King shall seise the Advowson for Alienation in Mortmain and destroy the Appropriation for he shall not be ousted of his right of Advowson by Implication So 2 R. 2. 4. If two be indebted to the King and the King release to one it shall not discharge the other for no prejudice shall accrue to the King by construction or implication upon his Grant more then he truly intended by it ibidem So if a release be made by him of all demands the right of Inheritance shall not be released 6 H. 7. 15. If the King granteth lands in fee upon condition that they do not alien it is good but in all these cases it is otherwise in the case of a common person And in many cases the King who claimeth by a Subject shall be in a better case in respect of the Prerogative incident to his Royall person then the Subject himself by whom he claimeth As if the King have a Rent-seck by Attainder of Treason or by Grant he shall distrain for it not onely in the land charged but also in all his other lands and yet the Subject by whom he claimeth shall not distrain If a Subject have Recognizance or an Obligation and after is outlawed or attainted the King shall seise all the land of the Conusor or Obligor where he himself can have but the Moyety the King shall take advantage of a Condition broken without demand whereas a common person who claimeth under the King cannot re-enter for non payment of Rent without demand made And if the King purchaseth a Lordship of which land is holden by posteriority the King shall have the priority vide ibidem plura in Knights case Davis f. 45. If a common person grant rent or any other thing which lieth in grant onely without limitation of any estate by the delivery of the deed only a Frank-tenement shall passe 17 E. 3. 43. a. If the King grant rent or land without the limitation of any estate the Grant is meerly void for the incertainty 7 Ass pl. 1. and the Grantee shall not be Tenant at Will as it is ruled in the case of Alton Wood. Ployd f. 243. The Grant of the King is taken more strongly against a stranger and more favourable to the King although the thing granted come to the King by purchase or descent Whereas it is otherwise of a common person As a grant of a Mannor by the King the Advowson shall not passe without speciall words So the King may grant a thing in action which another cannot So if the part of an entire thing commeth to the King the Common Law hath given him all As if an Obligation be made to two and one is outlawed the King shall have all the duty So he shall have an entire Horse or Oxe which one who is outlawed holdeth in Common ibidem So Coke l. 9. f. 129. b. Quando jus domini regis subditi in simul concurrunt jus regis preferri debet when the right of the King and the Subject concur and meet together the right of the King ought to be preferred as in Dame Hales case Baron and Feme Joynt tenants of a term for years the Baron is felo de se the Baron shall forfeit all Ployd Com. 262. vide ibidem plura in Quicks case The King may mend his Declaration that term that it is put in p. 13 E. 48. So the King may wave his Demurrer and traverse the plea of another M. 28 H. 6. f. 2. So if the King grant lands in fee with Warranty against all the Patentee shall not have value in recovery without express words to have value So the King may make a Lease to a stranger this reservation is good and the stranger shall distrain for it or have an action of debt after the Lease determined M. 35. H. 6. f. 36. Ployd f. 243. a. So for arrearages of Rent-charge granted to the King he may distrain in all other
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
affectum tribuit delinquendi minatur innocentes qui parcit nocentibus Coke l. 4. f. 45. a. Evil doings ought not to go unpunished because impunity ministreth a continuall affection of offending and he threatneth the innocent who spareth the Delinquent And Aristotle Pol. 7. Actiones justitiae sunt necessariae in civitate licet non eligibiles Though the actions of Justice that is the sentences and punishments of evill and condemned persons are not secundum se of their own nature eligible yet are they necessary in a City that the City may be the better ruled and saved for as Solon there are two things and tyes by which a Common-wealth is contained and preserved praemium poena reward and punishment and it is truly said Etsi meliores sunt quos ducit amor tamen plures sunt quos corrigit timor Thoughâ— they be the better persons whom the Love of goodness vertue draweth yet there are more whom the fear of punishment doth deter and correct and therefore the wisdome of our Law doth abhor that greater offences should pass unpunished So as that if a man be convict either of verdict or by confession upon an insufficient Indictment and no Judgment upon it given he may again be indicted and arraigned because his life was never in jeopardy and the Law wanteth his end which provideth that no evill Deeds should pass unpunished Coke l. 4. f. 45. a. for as Coke saith l. 5. f. 53 b. Oderunt peccare mali formidine penae The wicked to offend themselves refrain And from the same are scar'd for feare of pain And therefore by the Common Law is the offence of felony so severely punished and though the Judgment against such a Malefactor in that he shal be hanged by the neck untill he be dead yet implicitively he is punished First in his wife that she shall lose her Dower Secondly in his Children that they shall become base and ignoble Thirdly that he shall lose his Posterity for his blood is stained and corrupted that they cannot inherit to him or to any other Ancestor Fourthly that he shall forfeit all his Lands and Tenements which he hath in fee or in tail or for term of his life And fifthly all his Goods and Chattels And the reason was that men should fear to commit Feloâ—y ut poena ad paucos metus ad omnes perveniat that the punishment might be inflicted on few and the feare may come to all But some Acts of Parliament have altered the common Law in some of these points as by the Statute De donis conditionalibus lands in tail were not forfeited neither for Felony nor for Treason but for the life of Tenant in tail And this Law continued in force from the thirteenth year of Edward the first untill the twenty sixth year of Henry the eighth when by Act of Parliament Estates in tail are forfeited by attainder of high Treason but as for Felons the Statute De donis Conditionalibus doth still remain in force so as for attainder of Felony Lands and Tenements in tail are not forfeited but onely during the life of Tenant in tail but the Inheritance is preserved for the Issues but being attainted of high Treason or Petit treason the wife shall not be received to demand her Dower but in certain cases specially provided for Ployd f. 195. Coke com f. 392. a. b. And now the wife of a person attainted of misprision of Treason Murthâ—r or Felony is dowable by the Statute of 5 E. 6. c. 〈◊〉 c. in that case made and provided which is more favourable to the women then the Common Law was Coke ibidem Receditur a placitis Juris potius quam injuâ—iae delicta maneant impunita Bac. Max. f. 51. The Law will dispence with some grounds of the Law rather then crimes and wrongs should be unpunished quia salus populi suprema lex the safety of the people is the supream Law and the safety of the people is contained in the repressing of offences by punishment It is a positive ground that the accessory in Felony cannot be proceeded against untill the principall be tried yet if a man by subtility and malice set a mad man by some device to kill one and he doth so now forasmuch as the mad man is excused because he cannot have any will or malice the Law accounteth the Incitor as principall though he be absent rather then the Crime shall go unpunished 13 Eliz 1. So it is a ground in the Law that the appeal of Murther goeth not to the Heire where the party murthered hath a wife nor the younger brother where there is an elder yet if the wife murther the husband because she is the party Offendor the appeal leapeth over to the heire and so if the Son and Heir murther his Father it goeth to the second brother Ed. 4 M 28. 6. Stanf. l. 2 f. 60. But if the Rule be one of the higher sort of Maximes that are regulae rationales and not positivae then the Law will endure rather a particular Offence to escape without punishment then violate such a Rule As it is a Rule that penall Statutes shall not be taken by equity And the Statute of 1 E. 6. enacteth that those that are attainted for stealing of Horses shall not have their Clergy The Judge conceived that this should not extend to him that should steal but one horse and therefore procured a new act for it in 2 E. 6. c. 33. for it is not like the case upon the Statute of Gloucester that gâ—â—â—â—h an action of waste against him for term of life or years and yet if a man hold for a year he is within the Statute for penall Lawes are taken strictly and litterally onely in the point of defining and setting down the fact and punishment and in those clauses that concern them and not in generall words which are but circumstances and conveyances in the putting of the case and so note the diversity for if the Law be that for such an offence a man shall lose his right hand and the Offendor hath his right hand cut off in the Wars he shall not lose his left hand but the crime shall rather pass unpunished vide ibidem plura Nemo punitur pro alieno delicto Coke com f. 145. b. No man is punished for another mans fault And therefore the Defendant in a Replevin cannot claim property by his Bayliff or Servant and the reason is for that if the claim fall out to be false he shall be fined for his contempt which the Lord cannot be unless he maketh claim himself for no man shall be punished for anothers fault Dyer f. 66. pl. 14. It is the Law of God that every one shall bear his own burthen and receive judgment according to his proper fact and merit whether it be good or evill As whereas the Plaintiff chargeth the Defendants with an escape made and suffered by them they ought not to accuse
other Souldiers but English L. 1. de repub c. 21. though he had enjoyed and lived in peace for the space of thirty yeares whereas the French were continually conversant exercised in the Italian Warrs yet that prudent King who knew well that he had so ordered the Realme that in the time of peace the feats of armes were practised and military discipline exercised both attempted the conquest of France and fortunately effected it The same Encomium doth he give of Epominondas who redeeming the Thebans from the servitude of the Spartans so instructed them in the forme of military discipline that through their aid though effeminated by service he gave the Spartans a mighty defeate and overthrow for the care and faith of Domestick and Native Souldiers is greater and firmer and for the honour of their Prince and glory of their Country will fight more fiercely ita ut consensu quodum saith Seneca protegendi amandique regem conspirasse intelliguntur so as they are conceived to have conspired with an unanimous consent of protecting and loving their King Whereas mercenaries and strangers are commonly tumultuous and refractory and love not to be commanded Tac. 4. hist Tac. theagiae or governed but as Tacitus omniae ex libidine agunt love to doe what they lift and which is most perilous are perfidious non fide non affectu tenentur are not held nor kept by faith and affection but there faith dependeth on fortune which inclining to the Enemy thither doe they for the most part bend their mindes and forces by which meanes as one truly externo pessundata milite regna and as Curtius insidiosae fiunt illorum domini Kingdomes are sometimes ruined and by treachery they themselves become Lords and Masters of their leaders L. 1. f. 13. Polibius relateth that Carthaginians waging Warr with the Romans had their army mixed with Spaniards French and fugetive Grecians and that having made peace with the Romans intended to dismiss them who amounted to the number of twenty thousand which they perceiving suddenly drew themselves into a military body and made head against the Carthaginians and forced some of their Cities to subject their Forts to their Forces in so much as the Carthaginians were compelled to crave aid of the Romans to resist and repell them through whose assistance Hamilcar circumvented and inclosed them in narrow streites and places so as more of them perished by famine then the sword and Hamilcar by the consent of all was called salvator patriae the Saviour of his Country to this purpose I could plaustra exemplorum accumulare accumulate Cart-loades of examples how dangerous a thing it is to call in strangers to their aid and especially in any great number which plainely appeareth by the perfidiousnesse of the Saxons who though they came at the first as Mercenaries yet once admitted and sensible of their own power they soone grew Masters and Lords of the Brittons and therefore Livy giveth this sound counsell to them who are necessitated to introduce the aid of strangers that their Captaines be so circumspect quod non ita externis credant auxillijs ut non plus sui roboris suarumque pâ—oprie virium in castris habeant Livy l. 25. that they doe not confide so much in externall aid that they have no more of them in their army then their own strength and power will keepe in awe Multum potest in rebus humanis occasio plurimum in bellicis Poly. b. Coke com 71. a. Occasion and opertunity prevaile much in humane things but most of all in Marshall affaires In ancient time Kings had the supremacy over others of commanding 2. Reg. c. 8. or commencing War as appeareth by the sacred History yet sometimes upon necessary cause if there be danger in delay or the soveraigne Commander be absent War may be undertaken without the commandement of the Prince if it be upon necessary occasion of just defence which by the Law of nature is granted to every one So though the Consull Marcellus had the supreame command in Sicily yet L. Pinarius who was Captaine of the Garrison of Enna in Sicily when he did foresee the revolt and defection of the Citizens of Enna to the Carthaginians Livy l. 24. and he could not send Ambassadors to the Consull Marcellus though he was not far from thence suddenly he did kill all the Carthaginians by which Act Enna was still retained for the Romans and Marcellus did not disallow the fact And therefore Cicero commendeth the enterprise of Octavius Caesar who not expecting the decree of the Senate did of his own head make War against Antonius for if he had then omitted the time of battaile he did well foresee that the common Wealth would be suppressed and that then nothing could be decreed by the Senate and the Senate did after allow by publick authority the War undertaken by Octavius of his own private advice so Scipio Nasica did deserve exceeding commendation who voluntary without any decreed authority did offer himselfe a Captaine to all good Romans for the suppressing of Tibeâ—ius Gracchus and his treacherous confederates for it is necessary in such perturbations and tumults rather to obey times then customes for in peace we must obey custome in War the times and occasions Inter arma silent leges Coke l. 9. Ep. ad Lectorem When Armes and Weapons sway The Lawes are at a stay War was first brought in by necessity for in that decisions in Courts of Law and the determining of controversies by their rules could not be between two strange Princes of equall power unlesse they should willingly agree to such an order because they have no superior nor ordinary Judge but are supreame and publick persons and therefore the judgement of Armes is necessary because such War against them cannot be bridled by Law and by this and many other cases War is lawfull though many mischeefes doe staine it for good doth ensue of it and Princes by it obtain their rights and rebells are reduced to obedience and peace accorded and that whose end is good is also good it self to which and to common equity without bloodshed and these injuries of war men do seldome attain But when the Lawes of War and Arms do rule the civill Lawes of peace are silent and of little or no force As in the Conquerors time the Lawes did seem to be silent for in all the time of his Raign either his Sword was alwaies drawn or his hand was continually on the Hilt ready again to be drawn and as Bacon the Conqueror got by right of conquest all the lands of the Realm into his own hands in demesne taking from every man all Estate Terme property and liberty of the same except Religious and Church-lands and the lands of Kent and still as he gave any of it out of his own hand he reserved some retribution of rents or services or both to him and to his Heirs which reservation
is that which is called Tenure of land in which reservation he had four serviceable Institutions suitable to the state of a Conqueror 1. Marriage of the Wards Male and Female 2. Horse for service 3. Homage and Fealty And fourthly Primer Seisin Bacons uses f. 30. vide ibidem plura But Sir John Davis is of opinion Davis 21. f. 41. that though William the Conqueror made a more absolute and entire Conquest of England then Henry the second did of Ireland yet he did not seise all and had not the actuall possession of all the lands within the Realm of England vested in him by the Conquest yet he acknowledged that the book of Domesday which is an exact discription of all the Realm was made in the time of the Conqueror and that by it appeareth that the Conqueror had certain lands in Demesne which lands were in the hands of Edward the Confessor and are intituled Terrae Edwardi regis and other lands which himself had seised upon the Conquest and are entituled terrae regis and called them the ancient Demesnes of the King and of the Crown of England but he maketh no mention of the lands which he conferred on the Normans which without doubt were very great and whom by Mannors as well as by Honours he made predominant in England as to Hugh Lupus the son of his Mother Lotte and one Hoclewin a Noble man of Normandy whom she had married he gave the Earldome of Chester to hold of him as freely by his sword as he held the Crown of England by vertue of which Grant the said Hugh ordained under him four Barons B. Cr. f. 34. such an honour as no Subject in England ever enjoyed the like which also is manifest by the Grant he made to Warren a Norman of principall qualitie of the Castle of Shirburn in Norfolk B. cr f. 33. which afterwards he restored to the Heir because he had never born Armes against him by which this consequence may probably be inferred that notwithstancting his universall Conquest he had such a moderate respect to those who were neither Actors nor Opposites to his atchievement of the Crown that though upon suspitious informations he had by Grants deprived them of their estates yet in consideration of their submissive homage and fealty he gratiously restored them But to the point in hand upon this Conquest the ancient Lawes did seem to be silent Co. l. 3 71. ad lectorem for he abrogated many of them and in their stead brought in other Lawes which Sir Edward Coke confesseth efficacissima ad regni pacem tuendam were effectuall and forcible to maintain the peace of the Kingdome commanding them to be written in French and also that all causes should be pleaded and all matters of form dispatched in French thereby intending to make the Normans Language as predominant as their persons and therein intimating the Romans who upon their Conquest of any Country as well as England introduced and used their Language in all matters of state and Courts of Judicature both which are altered and changed by our Parliaments as an ancient badge of conquests and servitude So Edward the first made a Conquest of the Dominion of Wales and changed their Lawes and Customs as he hath expressed in his Charter as the Statute of Rutland whereas to their Lawes and Customes he saith Quasdam illarum de consilio procerum regni nostri de levimas quasdam correximus ac etiam quasdum alias adjiciendas faciendas decrevimus c. Some of them by the advice of the Nobles of our Kingdome we have abolished some we have corrected also some we have decreed to add and make Optimi ducis est Scire vincerâ— cerdere prudenter tempori Coke com f. 71. a. It is the part of an excellent Captain to know and to overcome and wisely to yeild unto the time Men must not fight onely with War-like Weapons and Engines but with the force of his wit and ingeny for dolus cunning and policy is much used in military affaires and standeth in equall ballance with strength and might according to the poeticall sentence Nil refert armis contingat palma dolove Nam dolus an virtus surit quis in hoste requiret By might and slight to conquer yea or no It is no matter for either in a foe Who doth require Nay often times prudent subtlety prevaileth more in such War-like enterprises then might and strength of hand and therefore are Stratagems more commonly more commodious then plain and equall encounters which a compleat Generall will alwaies practise upon a convenient occasion as Vegetius prescribeth Boni duces non aperto morte praelium in quo est commune periculum sed ex occulto semper attentant ut integris suis viribus quantum possint hostes interrimant certe vel terreant Good Captains will not fight in open field in which the danger is common and equal but will invade them unawares that with all their forces in what they can they may either destroy the enemy or otherwise put them into a fear and fright And therefore the Lacedominans when they over-came the enemy by Stratagem did sacrifice to Mars an Oxe but when by open strength a Cock of which Plutarch giveth the reason that so they might accustome their Leaders that they should not onely be valiant but also by subtle wiliness which is requisite in an Emperor they should excell in Stratagems And which by the Law of God is more to be desired for God commanded Joshua Josh 8. to lye in ambush for the City of Aye behind it and so did David when he was to fight with the Philistims Thou shalt not go up but fetch a compass behind them and come upon them over against the Mulberry Trees So it is a cunning policy in the besieged that they pretend to abound in those things which they most want So the Romans when the Capitall was besieged by the French and were pressed with the extream necessity of famine did cast down loafes of bred among their enemies Val. Max. l. 7. c. 4. that they might seem to abound in provision by which device the enemy was induced by compact to leave the siege And so in such a siege it is a commodious thing to a Captain to move in treaty of agreement and to make truce with the enemy for certain daies which usually maketh the enemy more negligent so as he may the more easily get out of their hands By this way Sylla delivered himself twice from the enemy and by the same deceit Asdruball in Spain got out from the force of Claudius Nero who had besieged him Match l. 6. f. 89. vide ibidem plura Lib. II. MISCELLANEA or an Hotch-pot Or divers scattered grounds concerning the reasonable construction of the LAW SECT I RAtio est anima legis Coke com f. 394. b. Reason is the life of the Law for then we are said to know the Law
shall give notice of the said felony to some of the Inhabitants of any Village or Hamler next the place where the robbery was done and that if in their pursuit they take any of the Offenders that shall excuse them though they do not take all See there in that Statute the reason of the alteration Co. l. 6. f. 50. a. b. At the common Law a man that had once the benefit of the Clergy shall have it another time and so in infinitum which was remedied by the Act of 4 H. 7. So as the burning in the hand was not to other purpose but to notifie to the Judge whether he had had his Clergy before or no ibid. So if one be attainted at the Common Law for forging false Deeds the King cannot pardon it yet the King may pardon the corporall punishment in case of forgery in the Star-chamber because all Suites in the Star-chamber are but informations for the King though the Suit be exhibited by the party ibidem So before the Statute of 18 Eliz. c. 7. the King might in case of Inditement of Man slaughter pardon the Imprisonment 15 H. 7.9 but not in an appeal but after the Statute of 18 Eliz. by which it is provided that after Clergy allowed and burning in the hand the Prisoner shall presently be enlarged and delivered out of prison It was resolved that that Act did extend as well to the case of appeal as to the case of Inditements otherwise the party shall lawfully be discharged of his punishment and yet remain in perpetual prison ib. vide examen legum Angliae f. 29. Cessante ratione legis câ—ssat lex Coke com f. 70. b. The reason of the Law ceasing the Law it self ceaseth As he that holdeth his land by Escuage when the King maketh a Voyage royall into Scotland to subdue the Scots then he that holdeth by the service of one Knights fee ought to be with the King conveniently arrayed for the War for forty daies c. yet needeth he not go with the King himself if he will find another man and this seemeth to be good reason for it may be he is languishing so that he cannot go nor ride Also an Abbot or another man of religion or a Feme-sole which hold by such services ought not go in proper person Littleton ibidem Quia multa In jure communi propter rationabilem causam omittenda sunt for many things for a reasonable cause are to be omitted If the King give lands to an Abbot and his Successors to hold by Knights service this had been good and shall do homage and fine a man but there was no wardship or releif or other incident belonging thereunto but if the Abbot and his Heirs had conveyed the land to a natural man and his heirs now the wardship releif or other incident belonged of common right to the King So if the King give lands to a Mayor and Comminalty and their successors to be holden in Knights-service the Patentee shall do no homage neither shall there be any wardship or releif onely they shall find a man but if they convey the land to any naturall man and his heirs now marriage homage ward releif or other incidents belong hereunto for the reason of the Law being changed the Law its self is changed and the immunity which was in respect of the body politique by conveyance over ceaseth Coke ibid. Qui rationem in omnibus quaerunt rationem subvertant Theophrastus Coke l. 2 f. 7.30 who do seek reason in all things overthrow reason As if a man make a Lease of Indenture for life of lands in severall Counties and maketh livery of seisin in one County and divers daies after he maketh livery in the other County yet an intire rent shall issue out of the land in both Counties and yet the livery by which the Estate passed was made at severall times and therefore it may be argued that presently by the first livery the rent issued out of it But the Law shall not adjudge by parcels in subversion of the intent and agreement of the parties but after all Acts are made in performance of the originall contract and agreement of the parties the Law shall adjudge upon all as done at one and the same time So if a man make a Charter of Feoffment with warranty and deliver the Deed to the Feoffee and after at another time make livery secundum formam chartae yet the Warranty is good and yet it may be objected that when the Deed was delivered no estate passed to which the warranty may be annexed nor no estate was in the Feoffee by which the Deed might enure and so by nice construction upon the distinction of time the warranty shall be subverted but the Deed which comprehended the warranty took effect presently by the delivery of the Deed before livery and seisin and therefore the sentence is true that who do seek reason in all things subvert reason ibidem SECT II. A Verbis legis non est recedendum Coke l. 5. f. 118. b. we ought not to go from the words of the Law Edriches casc A. deviseth rent with distress to B. for the life of C. the heire leaseth the land for life to D. the remainder to E. in see the rent is behind in the life of D. D. dieth C. dieth B. distraineth for the arrearages of E. in remainder and resolved that he shall be charged by the second branch of 32 H. 8. c. 37. which giveth a distress for the arrearages upon such lands out of which the said rents were issuing in such manner and form as if Cestuy que vie had been living And the Judges said that they ought not to make any interpretation against the express letter of the statute for nothing can so express the intent of the makers of the act as their direct words themselves for Index animi seâ—mo and it shall be perilous to give scope to make construction in any case against the express words when the intent of the makers appeareth not to the contrary and when no inconvenience upon it shall arise for we ought not to go from the words of the Law vide ibidem plura Coke l. 10 f. 105. a. b. If in an Assise so many of the Recognitors make default that there be not twelve the Justices of Assise cannot award Tales de circumstantibus for though the Justices of Assise are named in the said Act of 35 H. 8. as well as the Justices of Nisi prius yet insomuch as the said Act doth not give power to Justices of Assise or Nisi prius but where the tryall shall be by twelve men in any Writ of Habeas Corpora or Distringas with Nisi prius and it cannot be in an Assise for Assisae capiamur in proprio Comitatu and can never be taken by Nisi prius in proprio commitatu and no exposition can be made against the express words for that shall be viperina expositio quae
Dower and distraineth the tenant albeit the grant of Mesne was to acquit him against the Lord and his heires onely yet because she continued the State of her husband and the reversion remained in the heire this grant of the acquittall did extend to his wife for Qui haeret Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba ipsa fienda est Coke l. 7. f. 24. a. So often as there is no ambiguity nor doubt in the words there no exposition against the expresse words is to be made If A. by Deed granteth rent out of the Mannor of D. to have and receive it to him and his heires and further granteth by the same Deed that if the rent be behind that the grant shall distraine in the Mannor of S. both the Mannors are charged the one with the rent the other with the distresse for the rent the one issueth out of the Land and the other is to be taken upon the Land for here a rent is granted expresly to be issuing out of the Mannor of D. and the parties have expresly limited out of which Land the rent shall issue and in which the distresse shall be taken and the Law shall not make any exposition against the expresse words and intention of the parties when it can stand with the rule of Law for where there is no ambiguity in the words there is no exposition to be made contrary to the expresse words ibidem in Calvins case Exception Yet as Mr. Ploydon saith f. 18. b. The words of the Law of nature of the Law of the Realme and the Law of God will yeild and give place to some acts and things done against the words of the same Laws and that is when they are infringed to avoid greater inconveniences or for necessity or by conpulsion For inconvenience It is a rule in the Law that factum unius alteri nocere non debet no mans deed ought to hurt another but there is another maxime that it is better to suffer a mischeife then an inconvenience which is to be preferred before it Coke com 152. b. As if there be Lord Mesne and Tenant and the Tenant holdeth of the Mesne by five shillings and the Mesne holdeth over by the service of twelve pence if the Lord purchaseth the Tenancy the Mesnalty is extinct because when the Lord hath the Tenancy he holdeth of the Lord next parament to him and if he should hold of him that was Mesne then he should hold the same Tenancy immediately of two Lords which should be inconvenient and the Law will that we rather suffer a mischeife then an inconvenience Littleton so as the rule is regularly true res inter alios acta alteri nocere non debet what thing is acted among some must not hurt an other but with this exception unlesse an inconvenience should follow Coke ibidem So it is a Maxime in the Law that a warranty of a collaterall Ancestor if it descend upon him shall bar the heire as if A. disseise B. of Land and selleth the Land and the Alienee obtaineth a warranty of the Ancestor collaterall to the Disseissee after whose death the warranty discendeth upon the Disseissee the Disseissee by descent of the warranty upon him is barred for ever in Law Doctor and Student l. 2. c. 501. but though they all offended in obtaining of the said collaterall warranty yet such an offence is not to be considered in the Law for the inconvenience that thereupon might ensue for it is holden for an inconvenience as Coke saith Com. 152 b. That any of the Maximes of the Law should be broken though a private man suffer losse for that by infringing of a Maxime not onely a generall prejudice to many but in the end a publick incertainty and confusion would follow lex citius tolerarâ— vult privatum damnum quam publicum malum and Law will sooner suffer a private injury then a publick evil neither in such cases is there any remedy to be had in the Chancery or in conscience for it was resolved in Beverlys case Coke l. 4. f. 124. a. That against an expresse maxime of the common Law no man shall have releife in Chancery for it should be in subversion of a principle or ground of Law Doctor and Student ibidem vide ibidem plura So Ployd 18. b. It is against the Law of nature and the Law of reason to beate the person of any man in any cases yet when a man is mad and of non sanae memoriae and doth much evill a man and his Parents also may take him binde him and beate him with rods and may justify it 22. Ass Pl. 56. And by the Statute of Mar. it is generally prohibited that none shall drive any distresse out of one County into another and yet it is adjudged that if one hold Land of a Mannor in another County that the Lord may distraine and drive the distresse of the Land holden of the Mannor in the County where the Mannor is and that is in avoidance of the inconvenience for it should be a great damage to the Lord if he should not drive the distresse to his owne mannor for the avoidance of which the Law is not offended although the words of the Law be broken M. 1. H. 6. Pl. f. 3. A man priviledged in some Court is sued in London and the Action is actionable no where else yet upon a supersedeas the Court shall surcease Finch Nomot And wee see also that necessity in all Lawes shall be a good excuse and that all Lawes give place to necessity according to the common proverbe necessitas non habet legem necessity hath no Law And therefore in a precipe quod reddat the tenant shall excuse his default by a flood of water and yet every default is abhorred in our Law because it is a contempt of the Court but because by perill of death he could not come the necessity of the chance in such case in regard there was no default in him shall excuse him M. 38. H. 6. 11. So the words of the Law of God may be infringed by necessity without offence to God and therefore in the old Law by the Law of God it was prohibited that none should eate of the shew bread and yet it appeareth that David for necessity of famine did eate the said bread and yet he did not breake the Law as our Saviour Christ declareth in the Gospell so the Apostles of our Saviour did pull the eares of Corne of other persons and did eate them and that for necessity of famine Ploydon f. 19 a. So if a man steale victualls to satisfie his present hunger this is no Felony nor Larceny Stanford because it is for the conservation of life And if diverse be in danger of drowning by the casting away of some Boats or Barge and one of them get to some Planke or on the Beats side to keep him above water and
of a Grant be good in parcels and for parcels not that which is for the advantage of the Grantee shall be taken to be good As if a man granteth unto me an annuity provided that it shall not charge his person the Proviso is void and the Grant good 20 E. 4 8. by Townsend 14 H. 4. 30. by Hank And if an annuity be granted pro consilio impendendo though the Grantee be well skilled in divers professions of art yet counsell shall be given in that faculty onely which was intended at the time of the Grant 4. 1. E. 3. 6. If the King grant to a man that he and his Heirs shall be quit of Tax for the lands which they have this is a good Grant though there be no Tax at the time of the Grant 38 H. 6. 10. And so is the Law of Tenths and fifteens ibidem Ployd f. 29. a. If a man maketh a Lease for life and after the decease of Tenant for life that the lands redibus to A. B. in fee it is held a good remainder because it is held for a principle that the Livery of every one shall be taken more strong against him 18 E. 3. f. 28. If a man give land to one haeredibus it shall be a Fee-simple without the word suis and though he doth not give him a Fee-simple expresly yet every mans livery shal be taken strongest against him Ployd f. 18 b.a. If I make a lease for years upon condition that one moneth after he shall have fee he shall have it after the moneth accordingly for the thing shall pass according to the convention more strong against the Donor Ployd ibidem So if I make a lease to two upon condition that if one doth dye within seven years that then after the death of the other it shall remain to a stranger in fee that remainder is good for the reason of the condition to give the estate to privies or strangers is all one in regard that he had first given an estate to which the condition may be annexed for the livery and limitation shall be taken strongest against him that made it ibidem If I give land to one filio suo primogenito and he hath no Son at the time of the gift and after he hath a Son that son shall have the land by way of remainder and yet the remainder was not out of the Lessor neither did it vest at the time of livery but the Law construeth the livery and limitation more strong against the Lessor P. 17 E. 3. f. 29. Ployd vide ibidem plura If two Tenants in Common grant a rent of ten shillings this is severall and the Grantees shall have twenty shillings But if they make a Lease and reserve ten shillings they shall have onely ten shillings between them So an Obligation to pay ten shillings at the feast of our Lord God it is no plea to say that he did pay it but he must shew at what time or else it will be taken that he paid it after the feast for every act shall be taken more strictly against him that made it Noy Max. f. 15. 2 E. 3. p. M f. 140 b. 161. b. A generall pardon ought to be taken more beneficially for the Subject against the King 37 H. 8. f. 21. Coke l. 4. Vaughans case If I. S. submit himselfe to arbitrement of all Actions and Suites between him and I D. and I. N. it shall be intended collective of joynt Actions and distributive of severall Actions also because the words shall be taken stronger against him that speaketh 2. R. 3. 18. 21. H. 7. 29. If I grant 10 l. rent to Baron and Feme and if the Baron dye the Feme shall have three pound rent it shall be strongest taken against me the grantor for three pounds addition to the ten 8. Ass Pl. 10. So if I sow all my Land with Corne and let it for yeares the Corne passeth to the Lessee if I except it not So if I have a free Warren in my owne Land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren discharged and extracted during the Lease 8. A. 7 32. H. 6. If I. give Lands to I. S. and his heires males this is a good Fee-simple and the words males is void Bac. Max. f. 12. vide ibidem plura Yet this rule also faileth when another which the Law holdeth worthier cometh in place and which is of more equity and humanity It is a rule in the Civill Law valeant eo modo quo valere possunt and at the Common Law Benignae faciendae sunt interpretationes chartarum propter simplicitatem laicorum ut res magis valeat quam pereat Coke com f. 30 b. The interpretations of Deeds and charters because of the simplicity of the people are favorably to be made that the thing may rather stand and subsist then fall and perish and let all things stand by the same meanes they may stand And therefore if I give Lands to I. S. and his heires rendring five pounds yearly to I. D. and his heires this implyeth a condition to me that am the grantor Littleton yet were it a stronger exposition against me to say that the limitation shall be void and the Feoffment absolute So if a man make a lease to A. for yeares and after by his Deed the Lessor voluit quod haberet teneret terram pro termino vitae willeth that he should have and hold the Land for terme of his life this is adjudged by the word volo to be a good confirmation for life Coke com f. 301. b. Though it were stronger to say those words are void because they are not proper words of confirmation So if the Disseisor granteth a rent to the Disseisee and he by his Deed granteth it over and after doth re-enter in this case one and the same words doe amount to a grant and a confirmation So if the Disseisor maketh a Lease for life or in taile the remainder to the Disseisse in fee and the Disseissor by his Deed granteth over the remainder and the particular tenant atturneth the Disseissee shall not enter upon the tenant for life or in taile for then he should avoid his own grant which amounteth to a grant of the estates and a confirmation also ne pereat Coke ibidem 302. So if A enfeoffeth another upon condition that he and his heires shall render to a stranger and his heires a yearely rent of twenty shillings although this reservation be meerly void for that no estate moveth from the stranger and that he is not party to the Deed and therefore can be no rent yet shall it be taken for a penalty or for an annuall summ in grosse so as if they will not pay it according to the forme of the Indenture they shall loose the Land by the entry of the Feoffor and his heires which is to be observed that
the day of payment make his Executors and 〈…〉 dye and the heire enter into the Land as he ought c. the Feoffor ought to pay the monies to the Executor because the Executors as he saith l. 5. f. 99. a. represent the person of the Testator for all Goods and Chattels but if the condition upon the Mortgage be to pay the Mortgagee or his heires the mony c. and before the day of payment the Mortgagee dyeth the Feoffor cannot pay the mony to the Mortgagee but the payment ought to be made to the heire for expressum c. and the Law shall never seek out a person when the parties themselves have appointed one for designatio unius est exclusio alterius the appointment of one is the exclusion of the other But if the condition be to pay the mony to the Feoffee his Heires or Executors then the Feoffor hath election to pay it either to the Heire or Executor Coke com ibidem It is a sure ground in the Law expressum facit cessare tacitum Davis 45. in the case of Tenures and therefore the expresse reservation in Letters Patents excluded the reservations and implication in Law as if the King in his Letters Patents reserveth no tenure it shall be a capite tenure but if another tenure be expressed that shall prevaile as Coke l. 6. f. 6. where in a Patent the words of the Tenendum were Tenendum de nobis per servittum unius rosae pro omnibus servitij and wheras it was objected that no tenure can be without fealty yet in this case fealty that is an incident to all services shall be admitted to stand with the words and that then the tenure so expresly reserved was so compleate that it might well exclude the Knights service tenure which otherwise the Law would have implyed Davis Ibidem where it was also resolved that although the expresse tenure be void yet no tenure by implication of Law shall arise against the expresse tenure of reservation And so in the case of a void Habendum which standeth upon the same reason it was adjudged in B.R. between Higs and Crosse 33 and 34 Eliz. which in Bucklers case is cited by Coke l. 2. f. 55. Tenant for life maketh a Lease for years and after granteth the reversion to A. Habendum from a day to come for life after the day the Lessor for years atturneth in that case the Habendum is void and that void Habendum maketh void the whole Grant and excluded the implication of Law in the Premisses and no Estate shall pass by implication of Law in the Premisses against the express limitation of the partie in the Habendum Davis ibidem A man maketh a Lease rendring rent and doth not say to whom the rent shall be paid this by implication shall be to the Lessor and his Heirs But if the words be to the Lessor the Heir shall not have it Dyer 45. 12 Eliz. 3. c. So as an Estate by implication shall be controlled by an express limitation But if I grant to another a rent which I have in fee the grant shall be for life but if I say further Habendum after the death of I. S. there all shall be void Ployd 52.156 So if the King granteth lands by Letters Patens Habendum from a day to come there the whole grant is made void by the Habendum coke l. 5. f. 93. Barwicks case He in the reversion for life gtanteth his Estate Habendum after Michaelmas and after Michaelmas the Tenant attornes yet resolved the grant is void though if there had been no Habendum it had been good by the Premisses of the Deed coke f. 2. c. 55. Davis f. 26.27 Coke l. 7 f. 41. b If the Father by Deed indented in consideration of a hundred pounds paid by his son covenanteth to be seised to the use of his son there no use shall be raised to the son if the Deed be enrolled by the statute of 26 H 8. c. 10. for that it is in the nature of a bargain and sale and that which is expressed shall cause that which is implied to cease ibid. Coke l. 4. f. 8. a. in Nokes case It was resolved by the whole Court that an express Covenant doth qualifie the generality of the Covenant in Law and restraineth it by the mutuall assent of both parties which shall extend to no further then the express Covenant Quia clausula generalis non refertur ad expressa because a generall clause implyed in Law hath no reference to an express and particular Covenant in deed Yet Quadam tacita habentur pro expressis As if the Father Tenant by Knights-service enfeoff his son and heir within age it is not necessary to aver by collusion for it is apparant Ployd Winbichs case and 27 H. 8. Dacres case 33 H. 6. 14 c. So if I covenant to stand seised to the use of my Wife Son or Cosin that shall well raise a use without any express words of consideration for sufficient consideration appeareth because paternall love and affection appear If in a Lease the express Covenant is that the Lessee and his Executors shall repaire the house demised This shall not excuse the Assignee who by an implyed Covenant in Law adherent to the Estate is tied to repair it Coke l. A Warranty in Law is not distroyed by an express Warranty as if a man lease for life rendring rent and further bindeth himself and heirs to Warranty there the express Warranty shall not take the Warranty in Law but he may choose which he pleaseth Coke l. 4. f. 81. a. vide ibidem plura Lex neminem cogit ad impossibilia Coke com f. 231. b. l. 5. f. 75. a. The Law compelleth no man to impossibility If a Deed remain in one Court it may be pleaded in another Court without shewing forth for the Law doth not compell any one to impossibilities ibidem If a Lease be made upon condition that the Lessee dwell upon the lands demised the lease being for forty years and he dieth at the end of ten years yet the Executor shall enjoy the land because the condition is become impossible Et nemo tenetur ad impossibilia Dod. No man is bound to impossibilities 37 38 Eliz. If a man make a Lease for years of woods and it is covenanted that the Lessee shall leave the woods in as good plight as it was at the time of the Lease made and during the term the woods fell down by suddain tempest the Lessor shall not have an action of Covenant because it is impossible the Lessee shall perform it Perk. f. 142. b. Coke l. 1. f. 98. a. Coke com f. 206. a. If the condition of a Bond be impossible at the time of making the Condition the Condition is void because impossible and the Bond good As if a man be bound in an Obligation c. with Condition that if the Obligor doth go from the Church of S. Peter
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
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