taketh place ib. Traditio loqui facis chartum Delivery makes the Deed valid 103 U Vana est potentia quae nunquam venit in actum That power is frustraneous which is never produced into act ib. Vbi non est principalis ibi non patest esse accessarius Where there is no principal there can be no accessary 104 Vbi endem ratio ibi idem jus The same reason the same Law 105 Vbi nullum matrimonium ibi nulla dos No marriage no dower 106 Verba accipienda sunt in mitiori sensu Words are to be taken in a favourable sence 107 Verba sunt accipienda cum effectu Words are to be taken with the effect ib. Verba aquivoca intelliguntur digniere sensu Doubtful words are to be taken in the more worthy sence 108 Verba rolat a hoe maxime operantur per referentiam ut in esse videantur Relative words do especially work this by reference as they may seem in being 109 Verba chartarum fortius accipiuntur contra proferentem The words of a Deed are most strongly taken against the Grantor ib. Vnumquodque dissolvitur eo ligamine quo ligatur Every thing is dissolved by the same it obliges ib. Vltima voluntas testatoris perimplendae est secundum veram intentionem The Will of the Testator is exactly to be performed 110 Voluntas testatoris ambulatoria est usque ad mortem The last Wil only stands 111 Volenti non fit injuria To him that is willing there is no injury done ib. Vtile per inutile non vitiatur That which is profitable is not destroyed by that which is frustrane ous 112. Vxor non est sui juris sed sub potestate viri The Wife has not her own swing but is under the power of her husband Law-Principles Reduc'd to Practice A. ACcessorium non ducit sed sequitur suum Principale As if a man letteth Lands for life rendring certain rent if he grant in Reversion to another and the Tenant attorn all the Rent and Service pass by this word Reversion because the Rent in such case is incident to the Reversion But albeit he granteth the Rent to another 10 H. 7.10 Coke l. 5.21 Ployd 235. a. the Reversion doth not pass by such grant Litt. 152. a. 33. H. 6.33 A communi observantia non est recedendum A common opinion is good authority in Law Lit. 186. a. Coke Actio personalis moritur cum persona If a Lessee for years doth waste and dyeth Litt 53. b. Dy. 114. a Writ of waste lieth not against his Executor or Administrator for waste done in his life-time Actus Deinemini facit injuriam As Cokel 1.98 a. Coke l. 148. Coke l. 8.72.63 a. l. 5.86 If a Lessee covenant to leave the wood in as good a plight as it was at the time of the Lease and after the trees are subverted by tempests he is discharged of the Covenant Actus Legis nulli facit injuriam If Land out of which Rent-charge is granted be recovered by an older Title and thereby the Rent-charge is avoided yet the Grantee shall have a Writ of Annuity for that the Rent-charge is avoided by the course of Law Coke Lit. 148. a. 178. a Coke l. 5.87 Dy 60. Actus non facit reum nisi mens sit rea And therefore in criminal Causes as Felony the Act and Wrong of a mad-man shal not be imputed to him Lit. Com. 247. b. Doct. Stud. 148. Actus repugnans non Coke l. 1. potest in esse produci Corbet's Case Dy. 153.21 E. 436.4 E. 4.29 Ployd 255. a. As if a Gift in Tail upon condition that if the Donee aliene that then it shall remain to another it is repugnant for after alienation it cannot remain An Obligation solvendum nunquam the Solvendum is void for the contrariety and the thing presently due Actus me invito factus Lit. Com. 253. b. 14. Ass pl. 20.21 E. 4.28 Coke l. 2.9 Ployd 18. a. Coke l. 4.70 Lit. Com. 233. b. non est meus As when one is compelled for fear of Imprisonment to make a Bond or other Deed such fear sufficeth to avoid the same Actori incumbit onus probandi Bargainee and Bargainee if the Bargainer intend to avoid the Bargain by reason of non-inrollment within six months he must make manifest proof thereof or else it will be presumed that it was inrolled Additio probat minoritatem When it is said any where Lit. Com. 139. a. that a man is seized in Fee it shall be intended Fee-simple and not Fee-tail unless there be added to it this addition Fee-tail Ad proximum antecedens fiat relatio Litt. Com. 20. b. Dy. 14. b. 46. b. Coke l. 2.71 Cromwel's Case If a man let Land to A. for life the remainder to B. in Tail the remainder to C in formâ praedictâ this remainder is void for the uncertainty But if the remainder had been to C. in eadem forma this had been a good Estate Tail for Idem semper proximo antecedenti refertur Ad quaestionem facti non respondent Indiecs Lit. Com. 155. b. Ad quaestionem Iuris non respondent Iuratores The most usual trial of matters of fact is by twelve men And matters in ' Law the Judges ought to decide Aestimatio praeteriti delicti post factum nunquam crescit 11 H. 4.12 If the Gaoler let the Parcussor voluntarily to go at liberty and after the party wounded dyeth yet it is no feloninus escape Affectio nomen imponit operi Lit. Com. 49. b. If it be agreed between the Disseisor and Disseised Ployd 86. 141.21 H. 6.55 1 E. 4.11 4 E. 4.23 that the Disseised shall release all his right to the Disseisor upon the Land and accordingly the Disseised entreth into the Land and delivereth the Release to the Disseisor upon the Land This is a good Release and the Entry of the Disseizee being to this purpose shall not avoid the Disseizin for his intent in this case did guide his Entry to a special purpose Affectus punitur licet non sequatur effectus 34 H. 6.26.27 Ass pl. 44.19 R. 2. Breife 726. To give money to one returned on the Jury though he be not sworn is Maintenance Affirmativum negativum implicat Coke l. 9.56 As W. 2. 2.6.11 Westm c. 3. 4. Ployd 206. b. That upon account before Auditors and Arre-ages they have power to send their Bodies to the next Gool of the Lord their King in those parts Hence it is that it is herd 27 H. 6.8 That the Auditor ought to commit him to the next Gaol though another County Agentes consentientes pari poena plectuntur 22. Ass pl. 82. Coke l. 5.80 a. A. maimeth B. by the consent of C. An Appeal lyeth against A. and C. and damages equally against both Aliquis non potest esse Judex in propriâ causa Litt. Com. 141. a. Coke l. 8.118 Dy. 65.12 H. 8.11
of Windsors case Hob. 4. f. sentire debet onus The Commissioners in the Commission of Sewers ought to tax all which are in dammage or in danger of dammage and not only him which hath the lands next adjoyning to the river for it may be that the rage and force of the water might be such that the value of the land adjoyning would not serve to amend it therefore the statute would have all in peril 6 H. 6. c. 5. and which take commodity by the making of the Banks to be contributary to the amendment thereof Quod ab initio non valet tractu temporis non convaelescet Tenant for life of a carve of Land the reversion to the father in fee the Son and Heir apparent of the Father indoweth his Wife of this carve by the assent of the Father the Tenant for life dyeth the Husband dyeth the reversion was a Tenement in the father and yet this is no good indowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a freehold whereof he could not have indowed his own Wise though the Tenant for life dyed living the Husband Quod prius est tempore Litt. Com 14. ae potius est jure quod prius dignius And therefore among the males the eldest brother and his posterity shall inherit lands in fee simple before any younger brother or any descending from him Quod semel meum est Litt. Com. 49. b. amplius meum esse non potest And therefore if a man let land for a term of years the remainder over to another for life or in tail or in fee in this case it behoveth the Lessor to make livery of seizin to the Lessee for years otherwise nothing passeth to them in the remainder although the Lessee enters into the tenements And if the termor in this case enter before any livery of seizin made to him then is the freehold and also the reversion in the lessor And if the Lessor afterwards make livery to the Lessee it is void for by the entry of the Lessee he is in actuall possession and livery cannot be made to him that is in possession Quod semel placuit in electionibus Litt. Com. 146. a. amplius displicere non potest If a man grant by his deed a rent charge to another and the rent is behind the grantee may bring a writ of Annuity or distrain at his election but he cannot have both together For if he recover by a writ of annuity the land is discharged of the distress And if he distrain for the arrearages and the Tenant sue a Replevin and the grantee avow the taking of the distress in the land in a Court of Record then is the land charged and the person of the Grantor discharged of the Action of Annuity Quoties in verbis nulla est ambiguitas Litt. Com. 14.7 a. ibi nulla expositio contra verba expressae fienda est If a rent be granted out of the Mannour of D. and the Grantor grant over that if the rent be behind the Grantee shall distrain for the same rent in the Mannor of S. this is but a penalty in the mannor of S. For the Law needs not to make construction that this shall amount to the grant of a rent for here a rent is expresly granted to be issuing out of the Mannor of D. and the parties have expresly limited out of what land the Rent shall issue and upon what land the distress shall be taken and the Law will not make an exposition against the express words and intention of the parties Quod constat clare Coke l. 9. fol. 33. Batens case non debet verificari In a Quod permittat if it appear to the Court that the Nusance is to the dammage of the Plantiff he need not shew it specially as if the house of the Defendant hangeth over the House of the Plaintiff's Refert à quo fiat perquisitum Litt. Com. 12. a. Ployd 47. Sir Edw. Clere's case Coke l. 5. f. 76. Paget's case None shall inherit any lands as heir but only the blood of the first purchasor Remoto impedimento emergit actio If tenant for life remainder for life the remainder in fee make waste in Trees and after he in remainder for life dye an action of waste is maintainable by him in the remainder in fee for the waste done in the life of him in remainder for life because to the disinheritance of him in remainder in fee and now the impediment which was the mean estate for life is taken away Repellitur à Sacramento infamis Litt. Com. 158 a. If a Juror be attainted or convicted of Treason or Felony or of any offence to life or member or in attaint for a false verdict or for perjury be adjudged to the Pillory or the like or to be branded or stigmatized or to have any other corporall punishment whereby he becometh infamous these and the like are principal causes of challenge Res inter alios acta alteri nocere non debet Litt. Com. 152. b. And therefore if a Lessor by Covin suffer a common recovery the Lessee may falsifie it by the Stat. of 14 E. c. 1. S. Sensus verborum ex causa dicendi accipiendus est Coke l. 4. 105. Birchlye's case sermones secundum subjectam materiam sermo relatus ad personam intelligi debet de conditione personae The Defendant said to B. Clerk of the Kings Bench and sworn to deal duly without corruption You are well known to be a corrupt man and to deal corruptly adjudged that the action lyes because the words ex causa dicendi imply that he hath dealt corruptly in his profession Semper praesumitur Lit. 126. a. pro legitimatione puerorum And therefore if the Husband be within the four Seas that is within the Jurisdiction of the King of England if the Wife hath issue no proof is admitted to prove the child a bastard Si mulâ—er nebilis nupserit ignobili Litt. 16. b. Coke l. 6 53. l. 4.18 b. desinit esse nobilis If a woman gain Nobility by Marriage if she marry under the degrees of Nobility she loseth it otherwise if Noble by descent Solus Deus facere potest haeredem Litt. com 7. b 22. b. And therefore during the life of the Father he cannot be heire but heir apparent And therefore a Lease for life the remainder to the right Heirs of J. S. if Tenant for life die living J. S. the remainder cannot rest there being no heirs of J. S. but onely apparent Stabitur praesumptioni donec probetur in contrarium Lit. Com. 310. b. 393. b. If a man plead the Feoffment of a Mannor he need not plead an Atturnment of the Tenants for that shall be presumed till it bee shewn to the contrary T. Testamento cum duo inter se pugnantia reperiuntur Litt. Com. 112. b.
ultimum ratum est In one Will where there be diverse devises of one thing the last devise taketh place Traditio loqui facit chartam A Lease dated 26. May. 25 Coke l. 5. f. 1. Claylon's case Eliz. to hold from three years henceforth it was delivered at three of the Clock in the afternnon of the 20th of Junt after from henceforth shall be taken the day of the delivery inclusive for the day of the delivery is parcel of the term but à die confectionis or à die datus the term beginneth the day after the date V. Vana est potentia quae nunquam venit in actum Coke l. 2. fol. 50. Tenant in Tail Cholmley's case the remainder in Tail the remainder bargains and sells the land and all his estate to I. S. for the life of Tenant in Tail the remainder to the Queen the remainder to the Queen is void because the Grantee for life of Tenant in Tail took nothing for it is a void Grant And a remainder dicitur quasi terra remauens which cannot be here And the remainder must take effect when the particular estate ends and here it never begins Et vana est illa potentia quae nunquam venit in actum Vbi factum nullum ibi fortia nulla Coke l. 4. fol. 43. Syers case ubi non est principalis non potest esse accessarius If the principall be pardoned or hath his Clergy the Accessary cannot be arraigned for none can bee principall before it be so adjudged by Law viz. by Judgement upon the Verdict or Confession or by Outlary And it sufficeth not that in truth he be principall and the acceptance of pardon or prayer of Clergy is an argument but no judgment in Law that he is guilty Vbi eadem ratio ibi idom jus Litt. Com. 232. a. 191. a. If two men do a trespass to another who releases to one of them by his Deed all actions personall and notwithstanding sueth an action of Trespasse against the other the Defendant may shew that the Trespasse was done by him and by another his fellow and that the Plantiff by his Deed which he sheweth forth release to his fellow all actions personal and demand the Judgment And yet such Deed belongeth to his fellow and not to him But because he may have advantage by the Deed if he will shew the Deed to the Court he may plead this By the same reason may the Feoffer if he is come by the Deed Poll when he ought to have advantage by the Condition comprised within the Deed Poll. Lit. Com. 32. c. Vbi nullum matrimenium ibi nulla dos To the having of Dower it is necessary that the Marriage do continue for if that be dissolved the Dower ceaseth Verba accipienda sunt in mitiori sensu As Coke l. 4.13 Thou art a Thief and hast stollen a Tree spoken of another it shall be intended a Tree standing Verba accipienda sunt cum effectu Cok. Rep. l. 4. f. 48. Ognel's case Litt. Com. 183. b. 112. b. Coke l. 3.23 Ployd 197. b. 213. c. ◠If Lands be given to two men and to the heirs of their two bodies begotten the Donees have a joynt Estate for the tearm of their lives and yet they have severall inheritances inasmuch as they cannot have an heir between them ingendred the Law will that their estate be such as is reasonable according to the form and effect of the words of the Gift viz. the Heirs which the one shall beget of his body by any of his wives and so of the other Verba aequivoca in dubie posita intelliguntur digniori potentiori sensu Coke l. 6. fol. 20. Gregorie's case secundum excellentiam As if the speech or writing be of I. S. generally it shall be intended of the father where the father and son are both of a name So if of two brothers of one name it shall be intended of the eldest for these are more worthy So where the Statute of 4. 5. Phil. Mar. speaketh in any Court of Record it shall be intended of the four Courts at Westminster because the King's Atturney it Attendant there Verba relata hoc maxime operantur per referentiam ut in esse videantur Litt. Com. 9. b. As if the father infeoff the son to have and to hold to him and his heirs And the son infeoffeth the father as fully as the father infeoffed him By this the father hath a fee-simple Verba chartarum fortius accipiuntur contra proferentem As If two joynt-Tenants grant a Rent of 10 s. the Grantee shall have a Rent of 20 s. out of the land Vnumquodque dissolvitur eo ligamine quo ligatur Litt. 5 H. 7.33 4 H. 7.7 b. In an Annuity growing by prescription rien arrear is a good plea for this prescription is matter in fact But in an Annuity by Deed it is no good plea without shewing an Acquittance Vltima voluntas Testatoris perimplenda est secundum veram intentionem Litt. Com. 322. a. b. If a man let lands devisable to another for life or for years and deviseth the Reversion by his Testament to another in Fee or in Tail and dyeth and after the Tenant commits waste He to whom the Devise was made shall have writ of waste although the Tenant never Atturn And the reason is for that the Will of the Devisor may be performed according to his intent And if the effect of this should lie upon the Attournment of the Tenant then perchance the Tenant would never Attorn and then the Will of the Devisor should never be perform'd And for this the Devisee may distrain c. or bring an action of Waste without Attournment Voluntas testatoris ambulatoria est usque ad mortem Litt. 112. a. b. Coke l. 4. f. 60. Forse and Hemling's case And therefore if a man at divers times make divers Devises and Testaments yet the last Devise and Will made by him shall stand and the other are void for the latter Will doth countermand the first Volenti non fit injuria Pop. 9. As if Lessee for twenty yeares accept another Lease for ten years the first Lease is void and gone being the acceptance of the second is in Law the surrender of the first and no wrong in the Lessor Vtile per inutile non vitiatur Litt. com 227. a. If the Jury give a Verdict of the whole issue and of more c. that which is more is surplusage and shall not stay Judgment Vxor non est sui-juris sed sub potestate viri Litt. com 112. a. And therefore during the Coverture she is disabled to contract with any without the consent of the husband Rules and Principles of Law LAW is an Art of well ordering a civil Society Lawes are Native or Positive Native are those Laws which are in us of themselves and therefore unchangeable and perpetual These are
judgement between the King and the Prior of Worcester concerning an Appropriation Et examinatis intellectis recordo et processu coram toto Concilio c. Finis rei attendendus Coke l. 5. 87. The end and fruit of a Suit is satisfaction 14 H. 7.8.33 H. 6.47 but execution of the body is no satisfaction but a gage for the debt And therefore after his death he shall resort to another execution Filiatio non potest probari Litt. Com. 126. a. A man leaveth his wise enseint with a child issue shall not be taken that she was not enseint by her Husband on the day of his death for Filiatio non potest probari Firmior est operatio legis quam dispositio hominis Litt. Com. 224. a. A Lease upon condition Coke l. 10.67 b. that if the Lessee make any waste 37 H. 6.16 a re-entry if a stranger doth waste Dy. 281. Doct. stud l. 2. c. 4. he may re-enter Yet if the Tenant had been bound in an obligation that he shall do no waste he shall not forfeit his Bond by the waste of a stranger Frustra sit per plura quod fieri potest per pauciora Coke l. 6.167 a. Ployd 191. b. 9 H. 7.24 If the King by his Patent reciting the estate tail grant the reversion and further grant the Lands in possession those several Grants in one Patent are as strong in Law as if the King by one Patent had recited the estate tail and granted the reversion and by another patent the Lands in possession Furiosus furore suo punitur Litt. Com 247. b. Ployd 19. a. Litt. 124. b. And therefore if a Mad man commit Felony he shall not dye for it for though he hath broken the words of the Law yet he hath not broken the Law G Generale nil certum implicat Coke l. 2. fol. 33. Doddington lib. 8.98 a. Baspoles case If a man be bound to be Non suited in all actions that he hath against another in the common Bench he may say that he hath no action therein otherwise if the condition be particular viz. that he shall be non-suited in a Formedon So in arbitrement when the submâ—ssion is general an award of one cause though there were more between them is good Generalibus semper specialia insunt Ployd 467. b. 68. a. As the Stat. of Gloucester giveth an action of wast against him which holdeth for years which is in the plurall number yet it may be taken for him that holdeth for a year or half a year Generalis clausula ad expressa non refertur Coke l. 4. fol. 80. Noke's Case An Assignee of a lease shall have a Writ of Covenant upon the words Demise and Graunt yet if there be an expresse Covenant that the Lessee shall enjoy it without eviction of the lessor or any claiming under him this express covenant qualifieth the generality of the covenant in Law and restraineth it by mutuall consent of both parties that it shall not extend to the Assignee Generalis clausula non porrig itur ad ea Coke l. 4.131 Dy. 56.6 quae antea sunt spicialiter comprehensa When a deed at first contains special words and then concludeth in words general both shall stand As Lands given to one and the heirs of his body habendum to him and his heirs he hath an estate tail and a fee simple expectant Generalia sunt praeponenda sin gularibus Fâ—â—z Nat. B ev 2. a. As in a Writ or Plaint the general shall be put in demand before the special as Messâ—age before lands Lands before Meadow Mendow before Pasture Pasture before Wood Wood before Jancary c. H. Haeres est pars antecessoris Lit. Com. 22. b. Coke l. 7.12.10 H. 7.8 Dy. 868. Kep 151. And therefore if Lands be given to a man and his heirs all his heirs are so totally in him as he may give the Lands to whom he will Haeres legitimus Coke l. 7.44 a. Litt. 7.6 est quem nuptiae demonstrant One who is ingendred in a vowtry during the coverture is a Mulier by the temporal and common Law Haeres non tenetur ad debita antecessoris reddenda Britton fol. 65. b. Litt. Com. 209. a. 383. b. nisi per antecessorem ad hoc fuerit obligatus praeterquam debita regis tantum If the heir be not named in the obligation he shall not be bound by the deed of his Ancestor except to the King Hermaphrodita tam masculo quam faeminae Litt. Com. 8. a. g. b. comparatur secundum praevalescentiam sexus incalescentis An Hermaphrodite shall be heir either as male or female according to that kind of the sex which doth prevail and accordingly it ought to be baptized I Id certum est Litt. Com. 45. b. 43. b. 96. a. Ployd 273. b. Dy. 91. b. 44. a. quod certum reddi potest Albeit there appear no certainty of years in a lease yet if by reference to a certainty it may be made certain it sufficeth As a lease to A. 11 H. 11. 7.17 for so many years as B. shall name when B. hath named the years it is a good lease for so many Idem semper proximo antecedenti refertur Litt. Com. 20. b. As if a man let Lands to A. for life the remainder to B. in taile the remainder to C. in forma praedicta this remainder is void for the incertainty But if it had been the remainder to C. in eadem forma this had been a good estate-tail Ignorantia juris non excusat Doct. St. 2. c. 46. Coke l. 1. fol. 177. Mildmay's Case If a statute penall be made and it is enacted that the statute shall be proclaimed by such a day in every Shire and it is not proclaimed before the day yet if any offend against this statute he shall not be excused for the not proclaiming of it for he is bound to take notice of the Law at his peril Ignorantia facti excusat Coke l. 2. fol. 3. b. Mauser Doct. Stud. l. 2. c. 47. 31 E. 3.3 As if an illiterate man be bound to seal a Deed he is not tyed to do it if there be not some present to read it if required or if it be read amisse he may plead non est factum Ignoratis terminis Coke Lit. 177. a. 2. a. 68. a. ignoratur ars Every art hath its vocabula artis which being not conceived that art cannot be comprehended Therefore the significations of words in all arts and sciences are necessary which Master Littleton and Coke upon him ordinarily observe Impotentia excusat legem Coke Litt. 29. a. 258. b. 263. b. Coke Rep. Laughter case Coke l. 98. A man seized of an advowson or rent in fee hath issue a daughter who is married and hath issue and dies seized the wife before the rent became due or the Church became void
life by Dedi Concessi this shall inure as a confimation In one thing all things pursuant to be included 2 R. 2. Bar. 309. Upon a Grant of Trees the Grantee may come upon the Land to cut them down and with his carriage carry them thorow the Land 14 H. 8.1 10 E. 3.17 And the Vendee of all ones fishes in his pond may justifie the comming upon the banks to fish but not the digging of a trench to let out the water to take the fish for he might take them by Nets and other devices But if there were no other means to take them he might dig a trench Strongest against him that doth them 2 3. P. M. 140. b. 161. b. Two Tenants in common grant a Rent of 20 s. the Grantee shall have forty shillings But if they reserve twenty shillings upon a Lease they shall have onely one twenty shillings And therefore A man shall not qualifie his own act As 21 H. 7.23 b. if the Obligee releaseth his debt till Michaelmas the debt is gone for ever So a reversion of three acres of land is granted 18 E. 3.53 17 Eliz. Dy. 339. the tenant atturns for one it is a good atturnment for all The construction which otherwise Law would make is altered by the parties Special agreement Lessee for years is excused for waste 40 E. 3.5 Peck 55.56 if the houses be blown down by sudden storm or tempests But in that case if he covenant to keep reparations an action of covenant lies against him Speciall words As a Lease reserving a Rent 27 H. 8.19 30 H. 8. Dy. 42. b. the heir of the Lessor after his death shall have the Rent otherwise if the Lease be reserving to the Lessor Surplusage of words An information upon a Statute made such a day 6 E. 6.84 9 E. 4.28 h. and the day is mistaken is nought though he needed not to have recited the day 9 El. Dy. 255. b. A fained construction which we call a fiction in Law is when in a similitudinary sort the Law construeth a thing otherwise than it is in truth and is of the person thing action and the circumstances thereof time and place Of the person Things done by another are as if they wert done by one's selfe 27. H. 8.24 A promise to one's wife in consideration of a thing to be performed by the husband if the husband upon his comming home agree and perform the consideration he may plead this promise as made to himself So if my servant sell my goods and I agree I shall have an action of debt supposing be bought of me Of the thing we have these two Rules A thing that cometh in lieu of another 18 E. 3. rec in val 26.48 E. 3 11.6 H. 4.1 to be as if it were the same One shall recover in value against the heir upon the Ancestors Warranty lands which the heir took in exchange for lands descended A thing to be all one with that whereunto it doth amount The Maxime of a Bastard eigne is that the mulier puisne must make an entry upon him or else he gaineth the right yet a continual claim made by the mulier puisue 14 H. 4.9 14 H. 8.13 5 H. 7.1 destroyeth his right for it amounteth to an Entry So a Lease for years and a Release amount to a Feoffment And therefore A thing that should not be done to be as if it were not done 20 El. Dyer 362.18 El. Dyer 362. A man makes a Lease for years of a house with certain implements reserving a Rent The Executors after the Testators death receive the Rent yet it is no assetts in their hands for the whole Rent belongeth to the Heir So of a thing done in a time that it should not A man seized in fee le ts for ten years 1 E. b. Br. 18. and after selleth the land and taketh it back to him and his wife and then the husband and wife let it for 20 years reserving a Rent The husband dieth the wife accepts this rent during the first ten yeares By this the second Lease is not affirmed 21 El. 563. for the acceptance of a Rent before the Lease beginneth and so before any Rent be due is no acceptance at all To the circumstance of Time these two Rules pertain Priority of time is imagined in things Done together One deviseth a term for years to his son 21 El. 540. and that the wife shall have it during the son's minority This is first a Devise to his wife and after to the son when he cometh of full age Happening in an instant A Mesualty descends to the Tenant of the Land 11 H. 7.12 7 H. 46. 9 E. 4.21 Though the Mesualty be at the same time and instant extinct yet the Tenant shall pay relief if he be of full age or be in Ward if he be within age viz. where it is holden by Knights service Things relating to a time long before be Litt. 92.36 H. 6.7 as if they were done immediately from that time Where the wife is endowed by the heir of the husband's lands she shall be said to be in immediately from the husband And therefore if the husband were a Disseizor and the heir in by discent yet the Disseizee may enter upon the wife These Rules of common reason do many times cross and encounter one aenother which is the greatest difficulty that is found in the arguing of Cases But to help this the generall ground is according to the former Rule that Those prevail Litt. 110. b. 140. b. 32 H. 8. that carry the more excellent and perfect reason with them Tenant for life makes a Lease for life Br. gar 18.28 E. 3.20 b. Br. gar 17.35 H. 6.3 9 El. Dy. 264. b. 11 H. 7.9 Perk. 41.13 H. 8.15.7 H. â— 9 without naming whose life this shall be intended for his own life Rule 74. for else it were a wrong But if Tenant in tail make such a Lease for life this is a discontinuance and for life of the Grantee Rule 86. for it is strongest against the Grantor and most beneficiall for the Grantee FINIS
dieth she had but a seizin in Law and yet he shall be tenant by the courtesie because he could by no industry attain to any other seizin Idem non potest esse agens patiens 14 H. 8.31 13 H. 8 32. 8 H. 6.29 9 L. 4.32 Dye 188. And therefore a man cannot present himself to a Benefice No man can summon himself And therefore if a Sheriff suffer a common recovery it is error because he cannot summon himself Impersonalitas non concludit nec ligat Coke Lit. 352. b. And therefore every Estoppell ought to be a precise affirmation Imperitia maxima est maechanicorum poena 7 E. 3.65 b. Coke l. 11.57 a. Therfore if he that taketh upon him to work be unskilful and ignorant it is sufficient punishment for him for if any take upon him to work and doth it amiss an action of the case lyeth against him Inclusio unius est exclusio alterius Lit. Com. 210. a Coke l. 11.50 A morgage with the money to be paid to the Morgagee and his heirs Ployden 106. it shall not be paid to his Executors Infinitum in jure repro batur Coke l. 6.45 l. 7.456 l. 8.16 b. 3 H. 4.17.11 H. 4.9.9 E. 4.50 51. As if a man have a debt by a simple contract and taketh an obligation for the same debt or any part of it the contract is determined So of a Judgement upon an obligation In fictione legis semper est aequitas Litt. Com 150. a. Coke l. 11.46 Liford's case As if one seized in Fee take Wife and make a Feoffment in Fee the Feoffee grants a Rent-charge of 10 l. to the Feoffer and his Wife and the heirs of the Husband the Husband dieth the Wife recovereth the moity for her Dower by the Custome the Rent shall be apportioned and she may distrain for five pound which is the moity for albeit the Dower by fiction of Law be above the Rent yet when she recovereth Dower she shall not have the entire Rent but of the residue for fiction of Law shall never work a wrong to a third person In aequali jure melior est conditio possidentis 9 H. 5.15 Coke l. 4.90 a. l. 2.68 Perk. fol. 6. If a man purchase severall Lands at one time which are holden of severall Lords by Knights service and dieth the Lord who first seizeth the Ward shall have him Injuria illata in corpus non potest remitti I itt Com. 1 27. a. 1 61. b. Vita membra sunt in manu regis 19 Ed. 1. rotul 36 And therefore if a Lord Mayheme his villain the King shall punish him for mayming his Subjects by Fine Ransome and imprisonment In ambiguis casibus semper praesumitur pro rege 22. Ass pl. 19. Stamf. fol 10. And the reason that Treasure Trove belongs to the King is Quia dominus rei non apparet ideo cujus sit incertum est and therefore presumed it is the Kings In disjuctivis sufficit alterum esse verum Coke l. 10.59 a. Bishop of Sarum's case Whereas the Avowant did avow that the Office supravisoris omnium maneriorum suorum to such Person or Persons as it pleased the Bishop and the Defendant pleaded in the negative that the Office had not been but for the life of one that exception was not allowed because he did not say that the said Office had been granted to divers but only to such person or persons and in disjunctives it is sufficient that one of them be true In jure non remota sed proxima causa spectatur 2 H. 4.3 26 H. 8.2 If a person make a Lease and be deprived or resigneth the Successours shall avoid the Lease for the Law regardeth not the cause of Deprivation or Resignation which is the Act of the party but the act of the Ordinary in the admission of the new Incumbent In maleficiis plerumque spectatur exitus 1 H. 3.144 Coke l. 2.84 non voluntas If I hurt another only with an intention to beat him and he dieth it is Felony So the ancient Law is altered wherein it was a Rule of Law In maleficiis spectatur voluntas non exitus as Bracton hath it vid. 1. E. 3. In omnibus fere minori aetati succurritur In a cessavit against an infant who hath the Tenancy by descent he shall have his age though it be upon his own Cesser because he cannot tell what arrearages to tender before the Judgement Impossibile est unum corpus in duobus locis esse simul Pop. Rep. 58. As if a man make a lease of two Barns rendring Rent and for default of payment a re-entry If the Tenant be at one of the Barns to pay the Rent and the Lessor at the other to demand the Rent and there is no body there to pay it yet the Lessor cannot enter for the condition broken because there was no default of the Tenant he being at one Barn for it is not possible for him to be in two places together In praesentia majoris Ployd 498. a. cessat potentia minoris Appropriations made by the Pope Patron and King were good before Stat. 25. H. 8. without the Bishop because in the power of the greater the lesser ceaseth the Pope being supreme Ordinary In quo quis deliquit Coke Litt. 233. b. Groke Rep. fol. 183. Litt. 233. b. in eo de jure puniendus est If the Keeper of the Park pull down the Lodge or any House within the Park for putting of Hay into it for feeding of the Deer or such like it is a Forfeiture and the reason why the Office is forfeited is that he may be punished in that wherein he offended In omnibus obligationibus quibns dies non ponitur 20 E. 4.8 21 E. 4.8 praesenti die debetur Et nulla temporis d signatio praesens denotat When one is bound in Twenty Pounds to pay Ten Pound and no day of payment is limited the lesser sum is due presently to be rendred Judicis est judicare secundum allegata probata Dy. fol. 12. pl. 50. Ployd 83.6 7. H. 4.31 In a Formedon if the demandant count upon a Foeffment in Fee and not in Taile if the Tenant demurre upon it the Court cannot maintain the Declaration to be true because the Judge is to judge according to what is alledged Judicium pro veritate accipitur And therefore common recoveries suffered by the Tenant in Fee of the Lands of his Lessee for Life could not bee avoided or satisfied till the Stat. 14. Eliz. c. 8. And in Attaint the first Judgment is so favoured that the Plaintiffe shall have no other evidence but what he had at the first Triall but the Juty as many as they will to confirm the first Verdict Judicium à non suo judice datum Coke l. 10.76 b. nullius est momenti As if the Sheriff who is prohibited by the Law to
and Wood upon black acre 1 Mar. Dy. 91. Manxel's case 10. b. that may reasonably be spared this is a void Grant unlesse it be referred to a third person's judgement what may be spared Variance If the Writ vary from the Obligation 11 E. 4.2 4 Ass pl. 2. 32 H. 6.3 7 H. 6.22 or other speciality in name sirname or such like in an action of debt and annuity brought upon it or the Count vary from the Writ As in an action of debt of 20 l. 8 E. 4.2 and declare but a debt of 10 l. both shall abate Contrariety In trespass de domo fracta muris ejusdem domus fractis 21 E. 4.36 4 E. 4.29 21 H. 7.21 2 3 P. M. 153. The defendant cannot plead not-guilty to the breaking of the house and justifie the breaking of the walls for house and walls are all one and he cannot of the same thing both justifie and plead Not-guilty for by the justification he acknowledgeth himself guilty so they are contrary And therefore It will not drive a man to justifie that he goeth about to defeat â—0 H. 7.9 He that bringeth an Assize of the Mastership of a Chappell against J. S shall not need to name J. S. the Master of the Chappell because the Plaintisse is to disprove his interest Diligence And therefore It hateth folly and negligence Litt. 95. 5 E. 3.222 A discent cast during the Coverture where the wife is disseized barreth her not of her entry after her husbands death But if a Feme-sole be disseized and then taketh a Husband there a discent during the Coverture taketh away her Entry for it was her folly to take such a Husband that entred not in time Speeding of mens causes And therefore It hateth delayes He that pleadeth a record in delay 3 H. 6.15 12 H. 7.3 8 H. 7.9 2 H. 6.1 as to prove the Plaintiff excommunicate must have it ready to shew otherwise it is if he plead it in bar Vnnecessary circumstances One that is in Court ready to joyn with the Defendant 8 H. 6.1 1 H. 6.4 may do it without process As the Vouchee the Plaintiffs lessor being praid in aid of when the defendant in a replevin avoweth upon him or the Mesne when the Lord Paramont avoweth upon him But joynder in aid cannot be by Attorney without process Circuit of action Upon the grant of a ward with warranty Manxel's case â—7 b. the Defendant in a writ of right of ward may rebutt the Plaintiss by that warranty and shall not be driven to bring an action of covenant for avoiding circuit of action The Law construeth things with equity and moderation And therefore Restraineth a general act if there be any mischief or inconvenience in it Litt. 110. Tenant for life lets to another for life without expressing whose lives it shall be taken for the lessors own life for else it were a forfeiture of his Estate Moderateth the strictness of the Law it self By abridging diminishing and taking away the severity of it and mollifying the hardness of it A morall vertue as Plowden calleth it and may appear by Aristotle who treating of it defineth it A certain correction of the Law wherein it is any way wanting because of the generality of it It is no trespass 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 To the best And therefore Every act to be lawfull when it standeth indifferent to be lawful or not 6 11 H. 7.5 In an action of trespasse two issues are joyned triable in two Counties One in London another in Middlesex onely 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 lawful and not in both Counties which is against Law And therefore it is a discontinuance of the Issue in London and not a mis-continuance Thus far of Rules drawn from their Sciences There follow those that are proper to our selves which we call Law-constructions And these are natural or fained Of the first sort we have two notable grounds Law construeth things reasonably And therefore With a reasonable intent A bargain and fale of Land and a reversion by deed not inrolled the Reversion passeth not no more then the Land 21 H. 7.5 though the Deed without Inrolment may pass the Reversion but it was meant they should passtogether According to the effect A Deed delivered by an Infant 1 H. 6.4 cannot be delivered again at his full age for it took some effect before and was but voydable Otherwise of a Feme Covert or a Resease of one that hath nothing in the land for here the first delivery was meerly void So that he that cannot have the effect of a thing shall not have the thing it self The King shall not be received upon default of Tenant for life 4 Eliz. 241. because the Demandant cannot have the effect of the Receipt viz. to count against him which none can doe against the King but sue to him by Petition To the most validity Tenant in tail Lit. 140. b. makes a Lease for life this shall be intended the Lessee's life And therefore When any joyn in an act it maketh it his act that may do it Lit. 2 7 El. Dy. 191. The Disseizee and the heir of the Disseizor in by discent make a Feoffment by one Deed and Livery this is the Feoffment of the Heir onely and confirmation of the Disseizee When two Titles concur the best is preferred One is disseized Litt. and the disseizor lets the land to the Disseizee for term of years or at will Now if he enter the Law shall say he is in of his ancient and best title Things to be done by him that hath most skill to do them 9 E. 4.4 4 E. 6.15 4 El. 230. Litt. 22.11 E. 4.36 An Obligation upon Conditiou that the Obligee shall bring to the Obligor's shop being a Tailor three yards of Cloth which shall be shapen and the Obligor to make the Obligee a Gown of it the Obligor must shape it So a Merchant agreeth with the King's Collectors that his Merchandise shall be weighed at the Kings Beam and the King shall have his Subsidie as it riseth the Collector must weigh it Void things good to some purpose 10 H. 7.12 1 2. P. M 107. A Feoffment upon Condition to be void as if it had never been yet the Feoffee shall have an Action of Trespasse after the Feoffor's entry for the Condition broken for a Trespasse done by the Feoffor before One thing to inure as another 21 H. 7.3 15 H. 7.7 37 H. 6.4 The King grants to a Town easdem libertates quas London habet it shall be intended the like The Lessor infeoffeth his Lessee for