deteriorem nequaquam Cok. Com. 141. a. The Church exerciseth the Office of a minor can make its condition better but not worse for it is the cheifest reason which makes for Religion And therefore in all cases a Parson or Vicar of the Church for the benefit of the Church hath a qualified fee but in many cases to doe any thing to the prejudice of the Church he hath in effect but an estate for life As a Parson Vicar c. may have an action of Waste and in the Writ it shall be said ad exheredationem Ecclesiae So the Parson that maketh a Lease for Life shall have a consimili casu during the life of the Leasee and a Writ of Entry ad communem legem after or a Writ ad terminum qui preterijt or a quod permittat in the debet which no man can maintaine but Tenant in Fee-simple or fee-Fee-tayle vide But a Parson cannot make a discontinuance for that should be to the prejudice of his Successor to take away his Entry and drive him to a reall action but if he dye the Successor may enter notwithstanding the discontinuance And if a Parson make a Lease for years reserving rent and dyeth the Lease is determined neither will the acceptance of the Successor make it good vide 5. Prelatus Ecclesiae suae conditionem meliorem facore potest sine consensu deteriorem vero nequaquam sine consensu Coke Com. fol. 103. a. As neither Bishop nor Parson cannot disclaim or devest any fee is invested in his house or Church But an Abbot or a Prior with his Covent or a Bishop with his Chapter or a Parson with his Patron and Ordinary may passe away any Inheritance for the wisdome of the Law would not trust one with the Inheritance of the Church which alwayes maketh for religion and the good of the Church 6. Dies dominicus non est dies juridicus Ployd 265. The Sabbath day is no day for Law As upon a Fine levyed by Proclamations according to the Statute of 4. H. 7. C. 24. If any of the Proclamations be made on the Sabbath day all the Proclamations be erronious for the Justices must not sit upon that day but it is a day exempted from such Businesses by the Common-Law for the Solempnity of it to the intent that the people may apply themselves that day to the service of God No Plea shall be holden Quindena Pasche because it is alwayes the Sabbath but shall be Crastino quindenae Pasch Fit Nat. fo 17. f. Upon a Scire facias out of the Common Bench an Error was assigned because the Teste of the Scire facias was upon a Sunday And it was adjudged Error because it was not Dies Juâ—idicus Dyer 168. No sale upon a Sunday shall be said to be sale in a Market overt to alter the property 12 E. 4 8. Although Sunday is not Dies Ju idicus and that no judiciall Act ought to be acted on that day yet ministeriall Acts as to arrest or serve Process are allowed for otherwise peradventure they should never be executed and God forbid that things of necessity should not be done on that day for bonum est bene facere die Sabathi but this distinction and exception is taken away by a late Act made in the long Parliament of England yet did that Parliament in case of necessity once sit upon the Lords day which is the high Court of Justice and from which there is no appeale By the Statute of Magna Charta Cap. 14. no spirituall Parson shall be amerced according to his spirituall benefice but according to his Lay fee Fitz. Nat. br f. 76. b. And that in favour of Religion 7. Omnia quae movent ad mortem sunt deod inda Coke l. 5. fol. 110. b. any unreasonable thing killing a man by misadventure is forfeited to the King and every thing moveing with it is forfeited also to the King As if a man being upon a Cart carrying Faggots and as he is in binding them together falleth downe by the motion of one of his Horses in the Cart and dyeth of that both that and all the Horses in the Cart and the Cart it selfe are forfeited 8. E. 2. 307. A man falleth from a stack of Corne and dyeth it is forfeited 2. E. 3 140. If any Horse strike one and I â—lien my Horse and he dyeth my Horse is forfeited because the forfeiture shall have relation to the stroke given Ployd 260. b. Kâ—llaway 68. b. but it is not forfeited untill the matter be found on record and therfore it cannot be by prescription and the Jurors that find the death must also finde and apprize the goods Coke l. 5. fol. 11. b. And therefore are they called Deodands quasi deodanda that is Elâ—emosynas eroganda to be disposed in Almes and workes of Charity 17. E 4. 2. and for that reason doth the King grant them to his Almoner to the intent they should be disposed of by him accordingly Actus dei nemini facit injuâ—iam Cok. Com fol. 148 So much is the reason of the Law ruled by Religion as it will not permit the Act of God to prejudice any one as if Tenant for another mans life granteth a Rent-charge to one for one and twenty years cesty que vie dyeth the Rent-charge is determined and yet the Grantee during the years may have a Writ of Annuity for the Arrearages incurred after the death of cesty que vie because it determined by the Act of God Cok. lâ—b 8. fol. 72. Hales Case An Office is found that the Heir is in ward who after he was of ful age tendreth his Livery and was admitted to it the Heir within three moneths which is the usuall time to sue out his Livery bargaineth part of his Lands by Deed inrolled and within the three moneths dyeth the bargaine was adjudged good and that the Heire should have no prejudice because the suing of his homage and suing out of his Livery without default in him was become impossible by the Act of God Impotentia excusat lâ—gem and is all one as if the King had taken the Homage of the Heire when the Heire made his tender vide ibidem pâ—uâ—a Coke lib. 8. fo 63 a. If an House fall by tempest or other Act of Gâ—d the Lessee for life or years hath a speciall interest to take Timber for the builâ—ing of the house againe if he will for his habitation but if he pull downe the house he shall not have Timber to builde it because it is his own Act and the Lessor shall have an Action of Waste Coke lib. 1. 98. a. If a Lessee Covenanteth to leave the Wood in as good plight as it was at the time of the Lease and after the Trees are subverted by Tempest he is dischar ed of his Covenant causa qua supra Cok. l. 5. fol. 86. a. Bâ—unfeilds Case If the Defendant in debt dyeth in Execution the Plaintiff shall have a new
suerum cum averijs Abbot Conventus renounceth all the Common which he hath used to have of his Cattle with the Cattle of the Abbot and Covent and that release of Common was there taken void because he did not shew to whom he renounced the common yet there was a full intent for he had common in the Land of the Abbots and he had intent to release it to him but for the incertainty it was void And a Lease was made to Baron and Feme and the reversion of the Land that the Baron held was granted and it was held void notwithstanding the intent because it missed of the certainty of the particular estate H. 13. E. 3. Fitz. grants 63. And so where there were Lord and tenant of three acres and the Lord granted the signiory which he had out of one Acre it was held void in 17. E. 3. notwithstanding the intent because his intent did not agree with Law and so where a man holdeth of one by Castle garder Homage and Fealty and he granteth to another all his services it was held in 31. E. 1. that the Castle-garder cannot passe because he did not grant such a Castle but reserved it and therefore he who hath not the Castle cannot have the Castle guarder so his intent in granting al the services could not make all to passe because it was not according to Law and so the Law ruleth the intent and the intent not the Law Ployd ibidem in Throckmortons case Coke l. 1. f. 84. b. A man giveth Land to M. and 1. his Sisters and to the heirs of the bodies of them lawfully begotten by which they had a joynt estate for life and severall inheritances and the Donor intending that neither of them should break the Joynture but the Survivor should have all per jus accrescendi added this clause sub hac forma that shee that should longest live should have all the Land but because his intent is contrary to Law for this cause if the Joynture be severed by fine the Survivor shall not have the part so severed by the said clause which he hath inserted of his conceit and his own imagination contrary to Law and reason ibidem But in Wills the intent shall be observed and onely thought of because the Testator had no time to order all things according to Law by presumption but is suddenly made oftentimes and so the diversity Ployd f. 162. b. And therefore Ploy f. 414. a. The intent in devises maketh estates to passe contrary to the rules of the common Law in deeds and other gifts As if I devise Land to one A. for life whereas there is not any such the remainder in fee he in the remainder shall take the Land though there be no estate precedent And 34. E. 3. one had issue a Son and Daughter and deviseth Land devisable to one for life upon condition that if the Son disturbe tenant for life or his Executors of their Administration that then the Land shall remaine to the Daughter and dyeth the Daughter after the death of the tenant for life bringeth a Formedon in remainder against the son alledgeth that the tenant had disturbed the Tenant for life and the Executors and the Tenant traversed it upon it issue joyned and the condition took the fee out of the Son and put in the Daughter by allowance in Law in performance of the intent of the Devisee though the remainder did not vest when the first estate took effect Ployd ibidem Coke com f. 322. a. b. If a man lease Lands devisable for life c. the reversion by his testament in fee c. and dyeth and then the Tenant maketh wast the Devisee shall have a writ of Wast although the Tenant never attorned because the will of the Devisor made by his will shall be performed according to the intent of the Devisor and if the Tenant will never attorne then it shall never be performed and therefore he shall have an action of wast or distraine without Attornement Littleton for it is a maxime of the common Law ultima voluntas testatoris est perimplenda secundum veram intentionem sufam Coke ibidem for if a man devise his Tenements to another by testament Habendum sibi in perpetuum and dyeth and the Devisee entreth he hath a Fee-simple causa qua supra and yet if a feoffment had been made to him by the Devisor in his life of the same Tenements Habendum sibi in perpetuum and livery and seisin upon it made he shall have an estate onely for terme of his life Littleton Ibidem Coke com f. 9. b. Though by the common Law an estate of inheritance may not passe without these words Heires yet in devise it may as if a man devise twenty acres to another and that he shall pay to the Executors for the same ten pound he hath a Fee-simple by the intent of the Devisor albeit it be not the value of the Land 21. E. 3 16. So if a man devise Lands to give or to sell or in feodo simplici or to him or his Assignes for ever in all these cases a Fee simple doth passe by the intent of the Devisor but if the devise be to a man and his Assignes without saying for ever the devisee hath but an estate for life if I devise Land to one sanguini suo it is a Fee simple but if it be semini suo it is an estate tayle ibidem Exception Coke l. 1. f. 85. 86. in Câ—rbets case It was ruled by all the Justices that such an estate which cannot by the rules of the common Law be conveyed by act executed in his life by advice of counsell learned in the Law such an estate cannot be devised by the will of man who is intended in Law to be in ops consilij as if I devise Lands to one by will in perpetuum he hath a fee for such an estate may be conveyed by estate executed but if I devise further that if the Devisee doth such an act that then another shall have his Lands to him and his Heires that is void because such limitation if it was by act executed is void for as Dyer f. 33. pl. 12. A man cannot devise an estate in fee to one and if he doe not such an act his estate shall cease and another have it for when he hath disposed the estate in fee he hath not power in the same will to devise it to another and f. 4. pl. 7. when the intent of man who maketh a testament doth not agree with the Law the intent shall be taken void as if a man devise his Land to H. in fee and that if he dye without heir that M. shall have the Land this devise is void because one Fee-simple cannot depend upon another in law the same law is if the devise be to the Abbot of Saint Peter de W. where the foundation is to the Abbot of St. Paul
therefore the Law favoureth right and construeth all things according to right from whence proceedeth the ground Constructio juris non facit injuriam Coke com f. 183. a b. The construction of right or Law doth no injury As though it be a maxime in the Law that every mans grant shall by construction of Law be taken most strongly against himselfe yet is it so to be understood that no wrong be thereby done for it is another maxime in the Law that the construction of the Law doth no injury and therefore if tenant for life maketh a lease generally this shall be taken by construction of Law an estate for his own life that made the Lease for if it should be taken for the life of the Lessee it should be a wrong to him in the reversion and so it is if tenant in tail maketh a Lease generally the Law shall contrive this to be such a Lease as may be lawfully made and that is for terme of his own life for if it should be the life of the Lessee it should be a discontinuance and consequently the State which should passe by construction of Law should work a wrong Ibidem When two are in one house or tenement and one layeth claime by one title and another by another the Law shall adjudge him in possession that right hath to have the house or tenement Littleton Coke com f. 206. a. b. It is a generall rule that whensoever the words of a deed or of the parties without deed shall have a double intendement and the one standeth with Law and Right and the other is wrongfull and against Law the intendment which standeth with Law and Right shall be taken As if tenant in Fee-simple maketh a Lease of Lands to B. to have and to hold for terme of life without mentioning for whose life it shall be deemed for the life of the Lessee for it shall be taken more strongly against the Lessor for an estate of a mans owne life is higher then for the life of another but if tenant in tail maketh such a lease without expressing for whose life this shall be taken for the life of the Lessor for the reason abovesaid and also because the Law which abhorreth injury and wrong shall never so conster it as it shall work a wrong and in this case if it should be for the life of the Lessee the estate should be discontinued and a new reversion gained by wrong ibidem Where tenant in tail maketh a Lease to another for terme of life generally and after releaseth to the Lessee and his heires albeit between tenant in tail and him a Fee-simple passed It hath been adjudged that after the death of the Lessee the entry of the issue in tail was lawfull which could not be if it had been a Lease for the life of the Lessee for then by the release it had been a discontinuance executed Coke com f. 42. b. The Law more respecteth a lesser estate by right then a larger estate by wrong as if tenant for life in remainder disseâ—se tenant for life now he hath a Fee-simple but if tenant for life dyeth now is his wrongfull estate in fee by judgement in Law changed into a rightfull estate for life Coke com f. 41. c. If a man retaine a servant generally without expressing any time the Law consters it to be for one yeare according to the Statute 23. E. 3. C. 1. And for the same reason what is contrary to right and good manners is void in Law according to the rule of the Civilians Contra jus bonos more 's conventiones hominum non valent which accordeth with the ground of the common Law quod contra legem fit proinfecto habetur whatsoever is done contrary to to Law or right is accounted not done Coke l. 3. f. 74. quod vide As if a man maketh a Feoffment in fee upon condition he shall not alien this condition is repugnant and against Law and the state of the feoffee absolute Coke com f. 206. b. A Feoffment to A.B. his Heires and assignes with proviso that he shall not alien to no person is void but that he shall not alien to I.S. is good for upon the matter he hath given the Land to him and his Assignes except to I. S. Ployd f. 77. a. So if a man maketh a Feoffment in fee upon condition that the feoffee shall not take the profits this condition is repugnant and contrary to Law and the State is absolute Ibid. If a man be bound with a condition to enfeoff his wife the condition is void and against Law Ibidem A man giveth Land to two sisters and the heirs of their bodies under this forme that she which lived longest should hold the Land wholly which is void because it is contrary to Law for if the joynture be severed by fine the survivor shall not have the other part 8. Ass Pl. 33. Coke l. 1. in Corbets case So if a man maketh a Lease upon condition that if the Lessor granteth the reversion he shall have fee if the Lessor granteth the reversion by fine he shall not have fee because it is repugnant to Law 6. A. 2. Pl. 28. Pletingtons case The Testator maketh a Lease of his house and certain implements in it for years rendring Rent to him and to his Heirs and Assignes The Executors received the Rent continually after the death of the Testator The question was whether it was Assets or no and by the Judges adjudged no assets because the whole rent appertained to the heire Dier 360 b. An obligation taken by the Sheriff colore officij of any one in their custody by course of Law with a condition then for the appearance at the day mentioned in the processe is void because it is against the Statute of 23. H. 6. Coke l. 10. in Beawsages case vide ibidem plura And it is commonly holden that if the condition of a bond be against Law the bond it selfe is void Coke com 206. b. But herein the Law distinguisheth between a condition against Law for the doing of any act is malum in se and a condition against Law because it is either repugnant to the State or against some maxime or rule in Law and that common opinion is to be understood of conditions against Law for the doing of some act is malum in se As if a man be bound upon condition to kill I. S. the bond is void for an unlawfull condition is not of effect to gaine any thing by doing of it in our Law Ployd f. 34. b. But otherwise it is in a Feoffment upon condition for a Feoffment upon condition that the Feoffee shall kill I. S. the Feoffment is good and absolute and the condition void Ployd Brownings case 135. And though all Feoffments upon conditions repugnant to Law are void in bonds it is otherwise for a bond upon such conditions is good As if a Feoffee be bound in a bond that the Feoffee
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
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
words in a condition shal be taken out of their proper sense ut res magis valeat quam pereat Coke com 213. a. If one giveth Lands to two and the heires of their two bodies ingendred the Donees have joynt estates for life and severall inheritances for if one of the Donees hath issue and dyeth the other shall have all by survivor during his life but if the Survivor hath issue and dyeth then the issue of the one shall have the one moiety and the issue of the other the other moiety of the Land and shall hold the Land together in common and the cause why they shall have severall inheritances is for that they cannot by any possibility have an heire between them engendred and when the grant is impossible to take effect by the letter there the Law shall-make such constâ—uction as the guift by possibility may take effect Co. 83. b. If Lessor of an house for twenty yeares maketh a Lease for two yeares rendring rent and after granteth all his terme and interest to another if the Lessee atturne the Reversion shall passe and if no Atturnement be had yet the ieterest in the Reversion shall passe so as the Grantee shall have the Land after the two yeares determined for the grant of one shall not be adjudged void if to any intent it may take effect Coke l. 4. f. 53. b. If a Termor grant his Terme Habendum immediate post mortem suam the Grantee shall have it presently ut res magis valeat quam periat Noy Max. f. 16. So if a man make a Lease for ten yeares and after for twenty yeares the latter shall be a good Lease for ten yeares after the first is expired Ibidem A release of all Actions against a Prior and Covent shall be construed all Actions against the Prior for an Action cannot be brought against the Covent Coke l. 1. f. 76. Gardiner and Bredons case Tenant for life of Land the Remainder in taile Tenant for life and he in the first Remainder in taile joyne in a fine sur conusans de droite come ceo c. to another in fee who granted a Rent charge of forty pounds to tenant for life it was agreed by all the Justices that the fine levied by tenant for life him in the first Remainder was no discontinuance of the first Remainder in taile nor of the second because every of them did only give that they may lawfully give and no forfeiture in the case be cause the law which abhorreth all wrong shal conster it first to be the grant of him in the Remainder in taile and then the grant of Tenant for life ut res magis valeat quam pereat but if a Feoffment had been made by word then it is the surrender of Tenant for life and the Feoffment of him in the Remainder Ibidem Coke l. 1. f. 45 a. In 2. R. 3. 4. it is holden by Starky and others that if the Patent of the King may be taken to two intents good then it shall be taken more beneficially for the King but if it may be taken to one intent good and to another intent void then it shall be taken to that intent to make the grant good and not to that intent to make it void ut res magis valeat c. vide ibidem plura in Alton Woods case Coke l. 5. f. 8. a. In Cessavit where the Tenure is alledged by Homage Fealty and Rent and the Demandant counteth that in doing the said services he did cease it shall be taken by construction to such services onely of which a man may cease 6. H. 7. 7. as of Rent and not of Homage and Fealty and the reason of this is ne res destruatur least the thing should perish vide ibidem plura Ployd f. 197. b. Anthony Browne Justice said that it is an office of a Judge to expound the thing ut res magis valeat quam pereat and to make all parts of the Deed and intention of the parties also to agree together Coke l. 4. f. 4. If I grant to you that you and your heires shall distraine for a rent of forty shillings to wit within my Mannor of S. that by construction of Law shall amount to a grant of a Rent out of my Mannor of S. for if it shall not amount to a grant of a rent the grant would be of little force or effect if the Grantee shall not have but a nude distresse and no rent in him for then he shall never have an Assize of it and for that reason it hath been often times ruled that it shall amount to the grant of a Rent by construction of Law ut res magis valeat 3. E. 3. 12. c. Benedicta est expositio quando res redimitur a destructione Coke l. 4. f. 25. b. Blessed is the exposition when the thing is redeemed from destruction every Mannor which consisteth of Frank-tenements and Copy-holders hath two severall Courts the Court of Frank-tenements wherein the Suitors are Judges and is called the Court Baron and the Court of Copy-holders wherein the Lord or Steward of the Mannor are Judges and if all the Tenements escheate or the Lord release the tenure and service of his Frank-tenements yet the Lord may hold his Court of Copy-holds and make admittance and grant of them ne res destruatur it is a ground in Law verba debent intelligi ut aliquid operetur Coke l. 8. f. 24 words must so be understood that they must worke some thing and not be idle and frivolous in Edward Foxes case wherein it was resolved that a demise and grant upon consideration of fifty pound for ninty nine yeares amounted to a bargaine and sale for the said yeares for when a Frank tenement or tenement passeth by Deed indented and inrolled it is not necessary to have those precise words of bargaine and sale but words which amount to so much are sufficient as if a man covenant in consideration of mony to stand seised to the use of his Son in fee if the Deed be enrolled it is a good bargaine and sale and yet there are no words of a bargaine and sale but amount to as much Coke l. 7. f. 40. So if a man for mony alien and grant Land to one and his heires or in tail or for life by Deed indented and enrolled it shall amount to a bargaine and sale and the Land shall passe without any livery and seisin It is a ground in Law verba sunt accipienda cum effectu Coke l. 4. f. 51. a. b. Words are to be taken with effect as if a man hath in the right of his wife any estate in Fee-simple Fee-taile or for terme of life c. the Baron shall have all the arrerages as well before marriage as after the death of his wife by the Statute of 10. H. 6. 11. for though by the Common Law the Executors c. of the wife might have an Action
of debt for the arreaâ—ages before the coverture yet when as the Statute giveth to the Baron an Action of debt for the arrearages the words shall be taken with effect and shall be construed for the arreages due before It is a rule in the Law that verba restringuntur ad habilitatem personae vel ad aptitudinem rei Bac. Max. f. 14. Generall words are to be restrained to the condition of the person or fitnesse of the thing as if a man grant to another common inter metas bundas villa de Dale and part of the vill is his severall and part of his wast common the Grantee shall not have common in the severall yet this is the strongest exposition against the Grantor so by all the precedent rules and grounds it appeareth that the rule that words shall be taken more strongly against the Grantor doth yeild to them as the more worthy and equitable vide ibidem plura where this rule with its differences and exceptions is amply and accurately discussed The grant of a common person shall be taken more strong against him but the grant of the King shall be taken more strong against a stranger and more favorable for him Ployd f. 243. a. As a Mannor granted by the King the advowson shall not passe without speciall words 2. H. 7. 8. So the King may grant a thing in action Ibidem And if the King grant a Mannor or Land without limitation of any estate the grant is void for the incetrainty and the Grantee shal not be tenant at the will of the Lord Davis Rep f 45. vide ibidem plura This rule hath no place in Acts of Parliament Verdicts Judgements or Devise Bacon f. Max. 21. Expressio eorum qâ—ae tacite insunt nihil operatur Coke l. 4. f. 73. b. The expression of those things which are covertly implyed worketh nothing for the expression of a clause which the Law implyeth operateth nothing as in 30. Ass Pl. 8. A Lease is made to two for terme of their lives diutius eorum viventi and after they made partition and the one dyeth and he in reversion entereth and his entry adjudged lawfull notwithstanding the said words diutius eorum viventi for without those so much was covertly implyed by the Law 17 E. 3. 7. Hulls case whereupon Coke giveth this observation that in case of lease for life it is more beneficiall for the Lessor to have the joynture severed then to have it continue but otherwise it is in a Lease for yeares for if a man makes a Lease for yeares to two with a proviso that if the Lessees dye within the terme that the terme shall cease the Lessees make partition or one alieneth his part and dyeth the Lessee shall not enter into his part that is dead but the Grantee or the Executors of the Lessee shall 〈…〉 So if the King maketh a Lease for yeares rendring rent without limiting of any place or to whose hands it shall be paid the Lessor may by the Law pay it either to the receipt of the Exchequer of the King or to the hands of the Bailiffs or receivors of the King whom the King hath authorized to such purpose and therefore the usuall and speciall limitation of the payment of rent at the receipt of the Exchequer c. doth import no more then the Law will imply and therefore nihil operatur Ibidem Coke l. 8. f. 26. b. If the King reciting that another holdeth the Mannor of D. for life granteth the said Mannor to B. for his life in this case the Law implyeth that the second grant shall begin and take effect after the determination of the first grant and therefore there is no incertainty in the grant though it be not expressed so for the expression of a clause which the Law implyeth operateth nothing ibidem in the Earle of Rutlands case Coke l. 10. f. 39. a. By the Statute of 32. H 8. Tenant in taile may make a Lease for three lives or ten yeares and by the Statute of 4. H. 2. c. 24. he may levy a fine and by the Statute of 32. H. 8. c. 36. by it bar the issues and therefore if a man make a guift in tail and further grant that he may lease for life or for yeares or levy a fine with proclamations to bar the Issues nihil operatur for when one maketh a tacit guift in taile he giveth those incidents to it Ibidem And therefore are such conditions and expressions called by Sir Francis Bacon clausula vel dipositio inutilis an unprofitable clause and disposition and to no use because the act or the words do express no more then the Law by intendment would have supplyed and that therefore the doubling and iterating of that and no more then which the conceite of the Law doth in a sort prevent and preoccupate is reputed nugation And thâ—refore if a man devise Land at this day to that they must worke some thing and not be idle and frivolous in Edward Foxes case wherein it was his Son and heire it is void because the disposition of the Law did cast the same upon the heir by descent 32. H. 8. Gourd 39. Ber. And yet if it be by Knights service Land and the heire within age if he take by the devise he shall have two parts of the profits to his own use and the guardian shall have the benefit but of the third Brooke devise 41. But if a man devise Lands to his two Daughters havnig no Sons then the devise is good because he doth alter the disposition of the Law for by the Law they shall take in coparcenary but by the devise they all take joyntly Dyer 12. Bacon f. 74.75 vide ibidem plura Yet Littleton saith it is well done to put in such clauses to declare and expresse to the lay people which are not learned in the Law what the Law is in such cases Co. lib. 4. f. 73. b. Expresum facit cessare tacitum Coke com f. 183. b. A matter or thing expressed causeth that to cease or to be of no effect which by intendement of Law was implyed and not expressed As if one grant Lands to two without expressing what estate they shall have they have a joynt estate for terme of their lives but if a Lease be made to two Habendum to the one for life the remainder to the other for life this doth alter the generall intendement of the promises so if a Lease be made to two Habendum the one moiety to one and the other moiety to the other the Habendum doth make them tenants in common for that which is expressed doth make that which is secretly intended to cease Ibidem for as he in another case saith if the generall words should stand without any qualification then the speciall words should be altogether vaine Coke l. 8. f. 154. in Edward Althans case quod vide Coke Com. f. 210. a. b. If the Feoffee in mortgage before
give no stroke for the stroke of him that woundeth is the wounding of all the others in Law 4. H. 7. 18. Ployd 100. a. Facinus quos inquinat aequat An offence equalleth those are tainted with it If one receiveth the goods and not the felon he is accessory to the Felony if he knoweth the goods to be stolen If a man receive a man is attainted of Felony by Outlawry in the same County though he be ignorant of it yet is he accessory to the Felony because the Outlawry is a matter of Record of which every one ought to take notice A Servant procureth another to kill his Master this is no pety Treason in the Servant because it is but Felony in the other which is the principall 40. Ass Pl. 25. For things accessary are of the nature of the principall Principio dato sequantur câ—â—comitantia Reg. I. C. A Parson granteth an Annuity with a nomine poenae the Successor shall be charged with a nomin poenae due in his Predecessors life and not his Executors 7. H. 6. 190. The profits of the office of Filizer cannot be put in Execution upon a Recognizance or Statute because the office it selfe being an office of trust cannot 26. H. 1. Dyer 7. b. Tithe is not payable of Okes Ash and Elme usually lopped and topped though it be every seven or eight years for the brâ—nches are of the nature of the principall for which no tithes are to be paid if they be of twenty years standing according to the Statute of 5. E. 3 c. 3. Ployd f. 470. b. Molins Case Ployd 381. a. If one grant estovers to another to be burnt in such an house it is appurtenant to the house so if common be granted in such a place to one for his beasts levant and couchant in his Farme of Dale the common is appurtenant to it so as he who hath the house after by what title soever he cometh to it shall have the estovers and he that afterwards cometh to the Farme shall have the common and they shall not be severed unlesse by extinguishment vide ibidem plura 12. Eliz. 381. 5. H. 7. 7. 26. H. 8. 4. common Lord and Tenant by fealty and homage the Lord releaseth his fealty this is voide for fealty is incident to homage 7. E. 4. 11. Court-baron is incident to a Mannor Court of Pypowders to a Faire therefore one cannot grant the Mannor or Faire reserving those Courts 19 H. 8. Bro. Incidents Coke Com. f. 3 49. b. If a man be remitted to the principall he shall be remitted to the appendant and accessory as if Tenant in taile of a Mannor whereunto an advowson is appendant be disseised and the disseisor suffereth an usurpation if the disseisee enter into the mannor he is also remitted to the advowson vide ibidem plura Quod non valebit in principali in accessorio consequenti non valebit what doth not availe in the principall shall not availe in the consequent and accessory Coke l. 8. f. 78. b. As tenant in taile the Remainder in fee and the Tenant in taile suffereth a common Recovery The reason of the Bar for the estate of him in the Remainder who is an estranger to the Recovery is by consequence because a common Recovery barreth the Estate of Tenant in taile who is a party to the Recovery and by consequent all the Reversions and Remainders of common persons expectant upon it But when the Act of 34. H. 8. provides that no common Recovery had against Tenant in taile who is party to the Recovery shall not bar his Issues when the King is in Reversion by it it is included that the Act preserveth the reversion and remalnder in taile of the grant of the King for they cannot be barred but when the estate taile upon which they depend is barred for that which not availeth in the principall wil not availe in the accessory and consequent vide Ployd f. 38. c. b. The office of the King of Heralds was granted to Garter cum feodis proficuis ab antiquo etiam concessit illi 10 l. pro officio illo and the question was whether if the office be gone the Annuity was expired and it was affirmed by all the Justices that it was gone and is determinable by the office determined And Choke said that he was of Councell with one I. who had an Annuity granted unto him by the King in these words to I. Clerico coronae pro termino vitae and after he was discharged of the office and the opinion of all the Justices was that the Annuity was determined for it shall be intended that the Annuity was granted by reason of the office and so it appeareth in these cases that a fee though newly granted is annexed to the office and determinable with the office and shall continue with the office as an incident inseperable for the principall failing the accessory also faileth Agentes consentientes pari paena plectuntur Coke l. 5. f. 80. a. b. As Tenant for life the Remainder to his Son and Heire apparent in taile by Covin and agreement between him A. and B. maketh a Lease for years to A. who maketh a Feoffment in fee to B. to whom the Father Tenant for life releaseth with warranty and after the Father dyeth and the Warranty descended on the Son and it was resolved that the Warranty did not bar the Son for the Feoffment of the Lessee for years was a disseisin and that though the disseisin was to the Father himselfe who made the release yet in that the Father agreed and consented to the disseisin it shall not hinder but that the Warranty shall begin by disseisin vide ibidem Fitzherberts Case A. maimeth B. by the consent of C. An appeale lyeth against A. and C. and Damages equally against both 22. Ass Pl. 82. From the Post-praedicaments or as Keker-man from such termes as are series of the Predicaments and yet conduce to the fuller understanding of them AND first from the principle and then from the cause for every cause is a principle but e-every principle is not a cause as punctum is the beginning of a line but not the cause of the line As Aquinas in his Sam. part 1. q. 33. a. 1. Omnis causa est principium sed omne principium non est causa ut pater in divinis est principium filij sed non causa omnis causa importat diversitaem substantiae dependentiam unius ab altero sed nomine principij ordinem solum significamus and every cause imports a diversity of substance and a dependency of one thing from the other but by the name of the principle we signifie onely the order as the Father in the Deity is the principle or beginning of the Son but not the cause Cujus que rei potissima pars principium est Coke l. 10. f. 49. a. The beginning is the principall part upon which all others are founded quando
shall not be intended onely of a person who hath judgement of life but also shall be extended to a person convict by confession or verdict for a person attainted is a person convict and more and every greater containeth the lesser Coke l. 5. f. 115. a. It was resolved in Woods case that if a man tendreth more then he ought to pay it is good enough for every greater containeth in it self the lesser and the other ought to accept so much of it as is due unto him Quando plus fit quam fieri debet vâ—detur etiam illud fieri quod faciendum est in mâ—jâ—ri summa continetur minor when more is done then ought to be done that seemes to be done which was to be done and the lesser sum is contained in the greater Ployd f 349. b. The disseisor maketh a Lease for life and the Disseisee confirmeth the estate of the Disseisor the Disseisee cannot enter upon the tenant for life for his right was to all the estate of the Land and if he be barred of the Fee simple he is barred from the estate for life for every greater containeth in it selfe the lesser An action of battery is brought and the evidence proveth it a maime and well because it is battery and more 31. Ass pl. 1. Omne majus continet in se suum minus 28. H. 8. b. By a pardon of Murder Manslaughter is pardoned and and an attaint supposing a verdict to have passed between two Justices whereas it passed before three good enough A recovery pleaded of three acres where it was of six is good enough Finch Nomot f. 31. Where the Custome is that a man shall not devise his Lands for any higher estate then for life yet if the devise be in fee and the Devisee claimeth but for life the devise is good Dyer 150. b. Vpton by his last will in writing deviseth an entire mannor holden by Knights service in fee and it was adjudged a good will for two parts and not void for all A Quâ—re impedit in the Register is praesentare ad Ecclesiam by this he may count pro tertia parte Coke l. 10. f. 136. b. in Richard Smiths case A Procedendo supposeth an Assize before Stouse and Burton Justices and it was also before Shard and good because three containeth two Ployd Where by the Custome of a mannor a man may demise for life he also may demise to his Wife durante viduitate because the greater containeth the lesser Coke l. 4. Non debet cui plus licet quod minus est non licere Regula I. C. Cui licet quod majus non debet quod minus est non licere Coke l. 4. f 23. a. To whom it is lawfull to doe the greater thing to him it is not unlawfull to doe the lesser As where the Custome of the mannor is that Copy-hold Lands may be granted to any one in Fee-simple there the grant to one and his Heirs of his body is within the Custome for he that may lawfully doe the greater it ought not to be unlawfull but that he may doe the lesser Coke l. 9. f. 48. b. There is a great diversity between an Assignee and a Deputy of an Office the Assignee hath an interest in the Office and maketh all things in his owne name and for whom his Grantor shall not answer unlesse it be in some speciall cases but a Deputy hath no interest in the Office but is but a shadow of an Officer and doth all things in the name of the Officer and for whom his Grantor shall answer and when an Officer hath power to make Assignes he may implicitely make a Deputy for to whom that which is greater is lawfull to him that which is lesse is not unlawfull and by consequence when an office is granted to him and his Heirs by it he may make an assignee and by consequence a Deputy Sicut beatius ita majus est dare quam accipere Coke l. â— f. 57. b. There is a manifest diversity between a receiver and giver of seisin for he that hath a terme for years may receive seisin to the benefit of him which hath the Frank-tenement and all our Bookes are that the possession of a Lessee for years or guardian is a sufficient seisin for him in the reversion but he that giveth seisin is tenant of the Frank-tenement and therefore greater then Tenant for years that receiveth for it is a greater thing to give then to receive and therefore Tenant for years by his payment cannot give seisin to binde him which hath the Franke-tenement vide ibidem plura in Bredimans case Omne magis dignum trahit ad se minus dignum Coke Com. f. 44. a. b. The more worthier thing drawâ—th unto it the lesse worthy the Charter granted by H. 3. in the ninth yeare of his reigne was of force and validity notwithstanding his nonage for that in judgement of Law the King as a King cannot be said to be a minor for when the royall politick body of the King doth meete with the naturall capacity in one person the whole body shall have the capacity of the royall politick which is the greater and the more worthy and wherin there is no minority for the more worthier thing draweth unto it the lesse worthy vid. Coke l. 2. f. 68. in Tooker's case ibidem f. 285 a. Three Joynt-tenants are disseised and they arraigne an assize and one of them releaseth to the disseisor all actions personall this shall bar him but not the other for having regard to him the realty as the more worthy shall be preferred and the greater worthy draweth to it the lesse worthy ibidem 355. b. It was said that upon a recovery had by default in an action of Wast against Tenant in Dower a quod ei de forceat did not lye because in an action of Wast Damages were the principall as most antient and that therefore cleerely no quod ei deforceat did lye but it was answered that the place wasted was the worthier being in the realty then Damages that be in the personalty though more antient omne magis dignum trahit ad se minus dignum quanquam minus dignum sit antiquius a digniori debet fieri denominatio and every more worthy draweth unto it the lesse worthy though the lesse worthy is more antient and a denomination ought to be from the more worthy vide ibidem plura Coke l. 6. f. 43 b When an action is in the realty or mixt with the realty accord with satisfaction is no Plea for accord with satisfaction is a bar for the personalty but not for the realty and when the personall is mixed with the realty it is no bar for the personalty for allwayes the greater draweth unto it the lesse vide ibidem plura in Blâ—kes case Charters are put into a box this alters the nature of the box from being a Chattel and shal go to the heire and as
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
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
case whence springeth this often used assertion Non est regula quin fallit for as Cato saith vix ulla lex fieri potest quae omnibus commoda sit sed si majori parti prospiciat utilis est there can scarce any Law be made which shall fit all men but if it provideth for the greater part it is profitable and therefore the ordainers and interpretors of Laws respect rather those things which may often happen and not every particular circumstance for the which though they would they shall not be able by any positive Law to make provision and for the like reason Mr. Ploydon saith that Law is reasonable that provideth for the multitude though that some persons loose by it f. 369. b. By reason whereof they doe permit the rules actions and propositions of the Common Law upon discourse and disputation of reason to be restrained by exceptions which are grounded upon two causes the one is equity the other is some ground or rule proposed wherein for conformities sake and that no absurdity or contradiction be permitted certaine exceptions are framed which doe not onely knit and conjoyne one rule of reason to another but by meanes of their equity temper the rigor of the Law which upon some certaine circumstances in every of the said rules might happen and fall out omnia bene aequiparat as Bracton saith Nomot f. 14. But as Sir Hen. Fi. saith this crossing and encountring of one ground and maxime with another if the greatest difficulty we finde in the arguing of our cases but to help this we are to prefer those and those are to prevaile that carry the more excellent perfect reason and equity with them and Sir Francis Bacon saith it is a point worthy to be observed generally in the rules of the Law that where they encounter or crosse one another in any case it be understood that the Law holdeth worthier and which rules are of more equity or humanity but now to give you some examples of them which allwayes doe illustrate Coke com 183. It is a maxime in the Law Quaelibet concessio fortissime contra donatorem interpretanda est every grant shall be taken most strongly against himselfe as if Lands be letten or a rent granted an estate for life passeth for that is most strongly against himselfe which is to be understood that no wrong be thereby done for there is another rule in the Civill Law ea est accipienda interpretatio quae vitio caret and a maxime in our Law that legis constructio non facie injuriam the interpretative construction of Law shall wrong no man and therefore if tenant for life maketh a lease generally it shall be taken for his own life or else it should worke a wrong to him in reversion and so it is if tenant in taile should make a lease generally for otherwise it should worke a discontinuance and a wrong vide ibidem So if tenant in fee maketh a lease for life without mentioning for whose life it shall be deemed for the life of the Lessee and shall be taken more strongly against the Lessor but if tenant entaile maketh such a lease for life without expressing for whose life this shall be taken for the life of the Lessor because otherwise it would work a wrong Coke Com. f. 42. a. So if an Executor grant all his Goods and Chattells the goods which he hath as Executor will not passe because it may be a devestation and a wrong yet against the trespassor he shall declare quod bona sua cepit 10. E. 4.1 So it is a rule verba ita sunt intelligenda ut res magis valeat quam pereat words are so to be understood that the matter may prevaile rather then perish as if I give Lands to I. S. and his Heires rendring five pounds yearly to I. S. and his Heires this implyeth a condition to me that am the Grantor yet were it a stronger exposition against me to say the limitation should be void and the Feoffment absolute Bacon Max. f. 15. If the Chancelor dyeth before his servants priviledge discussed in bank 35. H. 6. 3. 172. b. yet it shall be allowed contrary to the rule sublata causa tollitur effectus but there is another rule actus legis nulli facit injuriam the act of the Law prejudiceth no man and for that reason the Court shall not prejudice him where no folly was in himselfe It is a ground qui male agit odit lucem and therefore the Law countenanceth more things done in the day then in the night as the party hath all the day till night to pay his rent and if it be a great sum he must be ready as long before the Sun set as the mony may be told for the other is not bound to tell it in the night and a man must not distraine in the night time for rent behind yet is there another ground in the Law quod necessarium est licitum and therefore when there is a necessity of doing things they may be done in the night time as an arbitrement made and delivered in writing the last day after the Sun set is good enough for judgements and arbitrements require long advice so may goods be distrained for in the night for damage feasant and a man may be arrested in the night for otherwise peradventure he shall not doe it at all It is a ground in the Law nihil agit in seipsum no man can doe an act to himself yet if one of the Chapter enfeoff the Deane and Chapter by that he he himselfe shall take by his own livery because the Law in that case cannot doe otherwise so a feme tenant in Socage may endow her selfe and an Executor pay himselfe It is a ground in the Law certa debet esse natratio counts and declarations must be certaine yet things which containe a necessary implication are good enough for it is another ground non refert quid ex aequipollentibus fiat it mattereth not what is done by equippollent or words which amount to such a sense as in an Ejectione firmae c. In a count of a lease made by tenant for life it sufficeth to say that the Lessor is yet seised without the alledging of his life expresly because it amounteth to the same sense by necessary implication So in an information upon the Statute of usury and he counts that the Defendant took per viam medium corruptae mutnationis by the way and means of corrupt borrowing whereas it should be accomodationis plaudingo and yet good enough It is a ground qui facit per alium facit per se things done by another are as it were done by himselfe yet is there another rule that corporall and personall things cannot be done by another as suite of Court cannot be done by another 7. H. 4.9 Otium est mater omnium vitiorum Coke l 11. f. 53. b. As all vertue consisteth in action so vice
quae quidem diaturnitate temporis efficit L. 1 de repub f. 2. ut nonnulla toleranda esse videantur que contra jus boni aequi esse videantur we are to yeild something to custome which certainly by long continuance of time doth effect that some things may seem to be tolerated which seem to be against the rule of right and equity so Moses tolerated and suffered the Jewes libello repudii by a bill of refusall to forsake their wives though the indissoluble bond of matrimony was ordained of God and this dispensation as our Saviour saith was permitted for the hardnesse of their hearts because their hearts through inveterate custome were hardned against that divine ordinance Consuetudo more utentiam approbata vim legis obtinet Bract. l. 3. c. 1. Coke l. 4. f. 21. Consuetudo est altera lex a custome approved by the manner of the users obtaineth the force of a Law and is another Law Arist 1. R. for those things are done by custome as the Phylosopher saith which therefore we doe because we have often done them and when a reasonable act once done was found to be beneficiall and agreeable to the people then did they use and practise it often and so by the reiteration and multiplication of the same became a custome and so being without interruption time out of mind practised for the quiet by the approbation of the people obtained the vigor of a law for as Bo. princep legum Sod de repub l. 1. c. 1. pulus morum magister the Prince is the master founder of laws ordinances and the people of manners and customes Just l. 1. tit 2. which accordeth with the description of Justian quod quisque populus sibi jus constituit id ipsius proprium civitatis est what every people ordaine to be a Law to themselves that is a proper and municipall Law of the City Cicer. in La. Maxima est vis consuetudinis saith the eminent Legist of Rome the force of custome is very great in so much that as by the Law of nature consuetudo est altera natura so by the Law of Nations consuetudo est altera lex for as Coke l. 5. Epist ad lectorem of his own knowledge professeth that at this time all Kingdomes and common Wealths are governed by Laws and that every Nation hath his peculiar and approved Customes which are the most usuall binding and firmest Lawes so as it is said per varios casus artem experientia fecit it may be said per varios usus legem experientia fecit Co. com f. 97. b. There are particular Customes and generall Customes particular Customes are such as are used in some certain County City Towne or Lord-ship and generall Customes are such as are used throughout all England which are the common Law of England In his preface for as Davis the common Law of England is nothing but the common Custome of the Realme and Coke the common Law is nothing else but a common opinion generally received and Finch the common Law is a Law used by prescription throughout the Realme of England Finch Nomot f. 75. Ployd f. 95. a. The common Law is nothing else but common use and the mirror of Justice c. 1. l. 9 The Law is ancient uses warranted by Scriptures and is called the common Law Dav. pref because given to all in generall and to conclude this point with this definition which seemeth to me to include all Custome is a reasonable act iterated multiplied and continued by the people L. 1. R. c. 3. de temps dont memoire ne court time out of minde Aristotle saith injustum est apud omnes praeter consuetudines patrias quicquam agere all Nations hold it unjust to doe any thing against the Customes of the Country which is a principle in our Law that Custome is another Law Ennig Frag. and that we may say with the ancient Roman Poet as he sung of the Romans Moribus antiquis stat resque Britanna virisque The state of England standeth on the ancient Law And though it be jus non scriptum and onely written in the memory of man yet as Sir John Davis it doth far excell our written Lawes namely our Statutes or Acts of Parliament which is manifest in this that when our Parliament have altered In his preface and changed any fundamentall point of the common Law those alterations have been found to be so inconvenient for the Common-Wealth as that the common Law hath been in effect restored againe in some points by other Acts of Parliament in succeeding ages as it is a fundamentall principle of the common Law Quod haereditarium jus omne per feodum simplex transit that all estates of inheritance are fee-simple which the Statute of 13. Ed. 1. de donis conditionalibus intended to limit and to give every man power to create a new estate in taile and establish a perpetuity of his Lands so as the same should not be aliened or letten but during the life of tenant in taile whereupon these inconveniences ensued purchases defeated leases evicted and other estates and grants made upon good consideration avoided creditors defrauded of their just debts and offendors enboldened to commit capitall offences c. who therefore were first barred by common recoveries and then docked by fines 15. E. 3. 14. by Herb. Coke l. 4. Ep. ad lectorem So the Statute of non-claime of 34. E. 3. is against a main point of the common Law whereby ensued the universall trouble of the Kings Subjects and therefore was it altered by the Statute of H. 7. c. 24. Coke ibidem 32. So by the grounds of the Law Lands were not devisable before the Statute of 32 34. H. 8. concerning which dayly experience teacheth us that many subtile and intricate questions arise concerning the construction of Wils to the ruine of many and hindrance of multitudes Coke ibi And it is a politick axiom that the alteration of any fundamentall point of the common Law which is ratified by use and experience is most dangerous and therefore we ought to vote and resolve with all the Earles and Barons in Parliament holden in the twentieth yeare of H. 3. against the Bishops who would have introduced the civil Law Nolumus leges Angliae mutare we will not change the Lawes of England To which purpose I add the asseveration of Cicero ante nostram memoriam terterum morem Frey Cil. de repub ac majorum instituta retinebant excellentes viri before our memory excellent men did retaine the custome of the ancient and the institutes of their elders Optimus legum interpres Consuetudo Co. l. 2. f. 81. a. The best expounder of the Law is custome If land holden by grand Serjanty be aliened without licence it is forfeited by the Common Law because the service of the body cannot be transferred to another 14 E. 3.
Law Wafrages and protection to the passing Merchants of the Sea was one of the principall causes of the payments of those duties Davis ibidem f. 12. And Dyer f. 43. Putteth a difference between a custome and a subsidy and saith that the custome for Merchandizes to be transported out of the Realme is an inheritance of the King and by the common Law and not given by any Statute and that appeareth by the Statute of 14. E. 3. which was the first Statute which maketh mention of any custome and that Statute doth not give or limit any Custome to the King but abridgeth and abateth the custome which was paid for Wool or Leather but a subsidy saith he is a Tax assessed by Parliament and granted to the King by the Commoners during the life of every King only which is made cleer by the case reported by Dyer 1 Mar. f. 92. where King Edward the sixth had granted a Licence to a Merchant stranger to transport all Merchandizes paying pro custumis subsidiis tot tantas denariorum summas quot quantas any english Merchant and Denizen should pay and no more And it was resolved by all the Judges after the death of Edward the sixth the grant was good for the Customes but void tor the Subsidies because the King had an Inheritance in the Custome as a Prorogative annexed to the Crown but in the Subsidies he had an estate only for life by act of Parliament But there is a third kind of duty payable for Merchandizes which are called Imposts or Impositions and these were sometimes rated and assessed by Parliament and then were they of the nature of Subsidies and sometimes were imposed by the Prerogative Royall to support the necessary charges of the Crown and then as the ancient Senator of Rome said Nihil magis justum est quam quod necessarium est There is nothing more just then that which is necessary Davis f. 12. vide ibidem plura The Impost upon Wines was first assessed by Parliament and limited to be paid for certain years which being expired is now continued by Parliament ibidem Opoâ—tet patrem familias vendacem esses non emacem Cato major Davis f. 10. The Master and Father of a Family ought to be a buyer and not a seller By the Grecians Kings were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pastors of the people and Emperors by the Romans Patres Patriae Fathers of their Country for their vigilant and Paternal care they were to take for the preservation and provision for the people for he is the publique Pater familias and is to bend his thoughts to the utility and commodity of the publique and as he is reputed a provident Father of a Family who hath more commodites to sell then occasions to buy so ought he to be a seller rather then a buyer and to provide that more native commodities be exported for sale and the less forrein Merchandizes imported to the buyer And therefore the little custome of forrein Commodties was then accepted of the King when but a little quantity of such forrein Wares were imported into England For in the time of Edward the first and after that in the times of Edward the third the native Commodities of England exported were of greater quantity and value by two parts of three at the least then the forrein Merchandizes imported by which King Edward the third raised so great a revenue out of the Native Commodities of his Dominions that it was noted for good Husbandry in that King for a Father of a Family ought rather to be a buyer then a seller but now it is altogether contrary for at this time the Out-gate is lesser then the In-gate and the forrein Commodities imported are of greater quantity and value by two parts then our native Commodities exported which is a great shame to our Nation to be so enamoured with Mercery and Grocery Wares imported by strangers and to expend upon those more then the value of all the Staple Commodities of our Country which will be in the end the decay and ruine of the Common-weale Davis ibid. Thesaurus regis est pacis vinculum bellorum nervi Coke l. 3. f. 12. b. The treasure of the King is the bond of peace and the sinewes of war And therefore the Common Law preferreth and advanceth the right of the King insomuch as Sir Henry Finch observeth you shall find it to be Law almost in every case of the King that is not Law in case of the Subjects and that with an intention to inhaunce the Kings Treasure and to replenish his Coffers whereby he may in time of peace advance the glory and honour of the Nation and in time of War be enabled to protect the Common-wealth against forrein incursions and invasions for the Kings Treasure is the bond of peace and sinewes of war And therefore in the case of the King which is not so in the case of a common person the body the lands and the goods of the Accomptant or Debtor of the King at the Common Law were liable to the execution of the King Dyer 234. before the Statute of 33 H. 8. c. 38. Coke ibidem and upon the same reason is this principall grounded Quando jus domini regis Subditi in simul concurrunt jus regis preferri debet Coke l. 9. 3. 129. b. when the right of the King and the Subject concur together the right of the King ought to be preferred As in Dame Hales case Ployd 262. Baron and Feme were Joynt-tenants of a term for years the Baron is selo de se he shall forfeit all and yet till the Office it surviveth but after the Office it hath relation before or at the least at the time of the death vide ibidem plura in Quicks case So Ploâ—d f. 263. b. If a Feme take husband and hath Issue and the land descend to the Feme and the Baron enter so that he is intituled to be Tenant by the Curtesie and then the Feme is found an Ideot and her Estate in the land is also found the King shall have the land and if the Feme dye the Baron shall never have the land by Curtesie for by the first possession of the Feme the Baron was entituled to be Tenant by Curtesie and when the Office is found the Title of the King shall have relation also to the first possession and so both the Titles commence at the same time but the King shall have the preheminence and because the Title of the King is in this case to the Frank-tenement of the land in that that he shall have the custody of it during the life of the Feme it shall utterly take away the Title of the Baron which before the Office found was vested in the Baron and therefore after the death of the Feme he shall not be Tenant by courtesie but the Issue shall have the lands out of the hands of the King if it be not
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
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
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
to deliver the Evidences of the Land it shall be understood of the first Iohanes S. the vendor who by common intendment hath the Evidences so a man granteth to one a pention that I. B. had donec sibi provisum fuerit de competenti beneficio this word sibi shall be referred to the grantee and not to I. B. so in a cui vita brought by a Feme the Writ is cui ipsa in vita contradicere non potest the word shall not be referred to the next antecedent ipsa but to the husband otherwise the sense should be imperfect Dyer Ibidem f. 15. b. So Dyer f. 46. b. I. G. was indited before the Coronor of the death of Emelin Gager his wife and the Inditement was that the said Emelin was in pace domini regis quousque ante dictus Iohanes Gager vir prefate Emelin Gager de Hambridge predicta in commitatu predicto Yeoman and the Inditement was held good and that there was no defect in the addition for the word Yeoman could not bee addition to the Feme though the next antecedent but must necessarily be referred to the husband according to the sense and meaning A Writ brought of rescuing goods and denying to pay towle contra pacem shall bee referred to the rescouse and not to the towle 30. E. 3. 15. because in it consisted the breach of the peace Coke l. 8. f. 119. Adam de Clidrow brought a precipe against Iohn de Clidrow and the Writ was quod juste c. reddat manerium de Wincomb duas carrucatas terre cum pertinentiis in Clidrow in this case the Village of Clidrow shall not relate to the Mannor because it wanteth not it for a Mannor may be demanded without mention made that it lyeth in any Village but cum pertinentiis though it come after the Village relateth to the Mannor because it wanteth it Quia verba posteriora propter certitudinem addita ad priora quae certitudine indigent sunt referenda 6. E. 3. 12. Impersonalitas non concludit nec ligat Cok. com 352. b impersonals doe not conclude or binde and therefore every estopple ought to bee a precise affirmation of that which maketh the estopple and not to be spoken impersonally as if it bee said ut dicitur because impersonality doth not conclude any man for impersonalitas dicitur quasi sine parsona ibidem Negatio destruit negationem ambo faciunt affirmationem Coke Com. f. 146. b. according to Grammaticall construction a double negative maketh an affirmative a distresse was pro infecto servicio the Defendant saith quod non fuit infectum and ruled as good as if he had said it was done but Grammaticall curiosity shall not prevaile in like cases to avoide a Grant as upon a Rent charge issuing out of Land the Proviso was quod non presens scriptum nec aliquid in eo specificatum non aliqualiter se extendat ad onerandam personam meam Nec non in Grammatical construction doth make an affirmation but the Law that principally respecteth the substance doth judge the Proviso to be a negative according to the intent of the parties so as the sense of those words according to the construction of the Law is provided that this present writing nor any thing therein specified shall any way extend to charge my person Coke Com. f. 146. a. b. so ibidem f. 223. b. If Lands bee given in taile sub conditione quod ipse nec heredes sui non alienarent that he nor his heires shall not alien in legall construction shall bee taken negatively notwithstanding the double negative In disjunctivis sufficit alterum esse verum Coke lib. 10. f. 59. a. The Bishop of Sarums case whereas the avowant did avow that the Office supervisoris omnium maneriorum suorum had been granted to such person or persons as it pleased the Bishop and the Defendant pleaded in the negative that the said office had not been granted but for the life of one that exception was not allowed because in that the advowant did not alledg that the said office had been granted to diverse but onely to such person or persons and in disjunctives it is sufficient that one of them be true ibidem So Coke Com. f. 225. a If the condition bee in the disjunctive it is sufficient to obey either of them according to the rule Si plures conditiones ascriptae fuâ—rint donationi divisim cuilibet vel alteri eorum satis est obtemperare in disjunctivis sufficit alterum esse verum If many coditions bee annexed to a guift severally or disjunctively it is sufficient to obey every one or any one in disjunctives it is sufficient if either of them be true Si plures conditiones ascriptae sunt donationi conjunctim omnibus est parendum ad veritatem copulatiâ—vam requiritur quod utraque pars sit vera Bracton lib. 2 f. 19 Coke com f. 225. a. If many conditions be joyntly annexed to a gift all of them must be obeyed and to a copulative truth it is required that every part be true in a condition consisting of diverse parts in the conjunctive both parts must bee performed as if a man give Lands in taile upon condition that if Tenant in Taile or his heires alien in fee or in taile c. and also if all the issues comming of tenant in taile bee dead without issue that then it shall bee lawfull for the Donor and his heires to enter if tenant in taile in this case or his heires make any discontinuance he in the reversion and his heires may enter after the estate taile is determined for want of issue for the reason abovesaid But if the condition or limitation bee both in the conjunctive and disjunctive what then as a Lease to the husband and wife for 21 yeares if the husband wife or any child betweene them shall so long live and the wife dieth without issue the Lease shall continue during the life of the husband for the disjunctive referreth to the whole and disjoyneth not onely the latter part as to the child but also to the Baron and feme And so it is that if an use be limitted to certaine persons until A. shall come from beyond the Seas and attain to his ful age or die if he doe come from beyond the Seas or attaine to his full age the use doth cease Coke ibidem f. 225. e. Grammatica falsa non vitiat instrumentum Reg. I.C. decius 3. f. 10. mala grammatica non vitiat cartam sensus abreviationis accipiendus est ut concessio non sit inanis Coke l. 9. f. 48. a. false latine doth not destroy a Deed or a Charter and the sense of dashes or abreviations is so to bee taken that the grant be not voide as if the King grant tat il mannur of C. and D. and in truth there is but one Mannor then those abreviations shall bee taken in the singular number totum illud
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
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
was incertaine when the Lessee would doe the act to make the Lease to begin and in the other it was incertaine when the coverture would bee dissolved for a lease certainely lymited might begin and determine upon uncertainety well enough Ployd ib. If a man maketh a Lease for twenty one yeares if I. S. live so long this is a good Lease if I. S. so long live yet it is certaine in incertainty for the life of I. S. is incertaine Coke com f. 25. b. It is a Maxime in the Law that no distresses can be taken that are not put into certainty nor can be reduced to any certainty for id certum est quod certum reddi potest as the Lord cannot distraine them which hold their Tenements in Frankalmoine if they will not doe such divine service because it is not put in certaine what service they shall do neither can it bee reduced to a certainty for upon an avowry damages cannot bee recovered for that which neither hath certainty neither can bee reduced to any certainty and yet in some cases there may bee a certainty in uncertainty As a man may hold of his Lord to sheare all the sheep depasturing in his Mannor although the Lord hath sometimes a greater number and sometimes a lesser number yet this is certaine enough the incertainty being referred to the Mannor which is certaine and the Lord may distraine for this incertainty Coke com f. 96. a. Incertainty may bee reduced to a certainty by matter ex post facto Ployd f. 6. a. b. Raingers case As a Lease for yeares rendring for every acre twelve pence though the number of Acres bee not certaine by the Lease yet by admeasurement or other triall may the rent reserved bee certainely knowne by which he may bring his action of debt So if one gives two Acres to one Habendum one for life and the other in fee it is incertaine in which he shall have the fee and which for life yet if after hee make Feoffement of one acre it shall bee said to have fee in the other ab initio so if one sell W. Acre and B. Acre for life the remainder of one of them in fee it is incertaine which Acre hee in the remainder shall have but if hee licence the Tenant for life to cut downe the trees in white Acre then hee shall bee adjudged to have the remainder of that Acre ab initio So 14. H. 8. f. 17. A grant of a terme upon condition that the Grantee shall obtaine the favour of the Lessor and pay so much as I. S. should arbitrate was good when the condition was performed and the second grant adjudged void So 17 E. 4. f 1. in trespasse for corne taken there the Defendant the Plaintiff had bargained agreed that the Defendant should go to the place where it grew and see the corne and if it pleased him upon the sight that then hee might take it paying to the Plaintiff forty pound for every Acre and it was holden a good contract notwithstanding the incertainty and quantity of the Corne and of the grosse sum shall bee paid for it because upon the circumstance the certainty might appeare Ployd ibidem Dyer f 91. b. If I bargaine with you that I will give you for your Land as much as it is reasonably worth and it is referred to the judgement of a third person hee shall ajudge it and then it is good so if I sell trees which then may easily be spared and refer the judgement of the sparing to a third person if hee give judgement of it it is good enough because by him it is reduced to a certainty with the Vendors consent In our law the time the estate the thing and the person not being sufficiently expressed by necessary coherence and relation to matter precedent they are sometimes made certaine enough first for the time if I. S. is bound to mee in twenty pound upon condition that I infeoffe him of B. Acre that then hee will pay mee ten pound if I infeoffe him presently after hee ought to pay the ten pound notwithstanding there is no time limited when it should bee paid for Perkins puts the rule if a condition hath a relation to the Act precedent and no time is limited when it shall bee done it ought to be done when the Act precedent is done Secondy for the thing though it bee put incertainly yet the communication precedent makes it certaine Dier 42. a. where one was bound to warrant I. G. and doth not shew what thing hee should warrant the Law shall make construction that hee should warrant the land of which communication was made Thirdly for the estate though it bee uncertaine yet sometimes it is made certaine by the matter precedent as steward-ship was granted for life and afterwards an annuity was granted for the exercise of that office without declaring what estate hee should have in the annuitie and resolved that he should have the annuity for life because he had the Office for life Coke l. 8. Fourthly for the person the consideration sometimes ascertaines the person and therefore if lands be given to one by deed Habendum sibi una cum filia donatoris in frank marriage this shall enure to both because the feme is causa donationis and by devorse shee shall have the whole Land and shall bee given together to the man for the advancement of the woman Dier 126. a. A man by intendment of Law the Land and the woman deviseth that his lands shall bee sold for the payment of his debts and doth not say by whom they shall be sold by his Executors because they are lyable for the payment of his debts Licet id certum est quod certum reddipotest id tamen magis certum est quod de semetipso est certum Coke l. 9. 47. a. The Patents of the King ought to be extended certainely to the thing of which the Patentee will take advantage as 2 R. 3. 7. If the King grant to me that I shall not be High-Sheriff without shewing of what County it is void for the incertainty Quia concessio per Regem oportet fieri de certitudine but if the grant was that he should not be Sheriff of such a County there such a grant is good Ployd f. 395. a. If a Lease be of the mannor of Sale in Dale which he had by descent of the mother and he had the mannor of Sale by purchase and not by descent of his mother in this case the Lessee shall have it because the mannor of Sale in Dale is enough without further certainty expressed and his saying that he had by descent is not requisit in that it was sufficiently certaine before for it is rather super-abundance then certainty so M. 2. E. 4. f. 27. If one release all his right in white Acre in Dale that he had by descent but had it by purchase there he shall not avoid the release by saying
election may be by voyces or hands or in othâ—â— sort and it is hard to discerne the certaine number and yet easy to see who had the greatest number 2. M. 128. vide Ployd f. 121. b. Coke Com. f. 303. c. Every Plea must be direct and not by way of argument or rehersall and an argumentative Plea is not good Ployd f. 122. a. b. for there is a ground in the Law that in declarations certainty ought to be alledged by apt words of affirmation otherwise the declaration is not good As in debt upon an obligation I declare that it appears by the obligation that the Defendant is bound to me in twenty pound the declaration is not good because it was alledged in matter of fact quod tenebatur mihi in twenty pound for bond is alledged for recitall onely So 11. H. 6. In an action of debt against a goaler who had let one at large who was in execution under guarde for the sum in demand and declareth that he let him at large by which the Plaintiff exclusus fuit de debito suo and the declaration not good because he did not say that he was not satisfied when he let him at large which is the cause of the action which he hath not alledged but by implication for by implication it is alledged for if he let him go at large by which he is barred of his debt against the prisoner by it is implyed that the debt was not then paid but the count was not good because it was not affirmed by precise words and 38. H. 6. f. 14. The Plaintiff in an action of debt counts that the Defendant retained him in his service for eight years to serve him in all occupations taking for every yeare 20 s. and the Defendant gageth his Law and though the Plaintiff was retained in husbandry and the service of husbandry was implyed in the words all occupations yet the Defendant was received to his Law because it was not fully expressed that he was retained in husbandry but onely by implication which would not suffice So Ployd f. 143. b. The Covenant in the Indenture was if one moyety of the Rent was behinde and unpaid after two moneths since the Feast c. that then c. and in the rejoynder it was alledged that one moyety was behinde per duos menses by the space of two moneths which was no answer because the Indenture is if it be behinde after two moneths post duos menses and he said it was behinde per duos menses which is no affirmation that it was behinde after two moneths but by implication and argumentation and not otherwise and therefore not good Every Recovery had in our Law must be pleaded certainly to every intent Ployd 65. a. as in 22. E. 4. f. 8. in a Scire facias to have execution of two hundred Acres of Land the Tenant pleaded that since the Scire facias sued that I. B. brought a Formedon of one hundred Acres inter alia and recovered and had execution judgement of the breif for parcell and there the opinion was the Plea was not good for every Recovery ought to be pleaded certianly to every intent and those words inter alia are certaine to no intent and it is good reason for every Recovery is entire and there is one originall and one judgment upon it and so the judgement is one and entire and therefore to say that inter alia he did recover is not good but ought to plead certainly If a Bar hath matter of substance and is good to a common intent it shall suffice although it be not good to every speciall intent Ployd Colthersts Case f. 26. a. and as Coke Com. 303. There are three sorts of certainties first to a certaine intent in generall as in counts replications and other pleadings of the Plaintiff 2. A certaine intent to every particular as in Estopples 3. A certainty to a common intent and this is sufficient in a Barr which is to defend the party and to excuse him and of this certainty it is said the Bar shall be good if it be good to a common intent Ployd f. 31. a. but this common intent is not such an intent which may be indifferent but such an intent that hath more vehement presumption in intendement then any other intent hath as fully to administer all the goods which were to the testator the day of his death is a good Bar yet it may be he had other goods which were never in the hands of the Testator which are Assets as debts paid after or goods which come in liew c. but that is not the most common intent but the more common intendement is that he had not any other goods but those which were the Testators So in a Formedon in descender ne donna pass is a good Barr yet it may be he hath recovered in value in which case other Lands were given and yet the Formedon lyes but that shall not be intended but the common intendement is to expresse the plaine guift by livery but if I pleade in Bar a lease for anothers life there the Bar is not good without averring the life of cefis que vie for it was indifferent whether he was in life or no and hath no more stronge intendement the one way then the other therefore his life must be averred by expresse words so in debt upon an obligation if the Defendant pleade in Barr a release bearing date since the obligation made that Bar is not good if he doth not shew by expresse words that it was delivered since the obligation made for prima facie one will presume that it was delivered when it bore date but of the other part it shall be presumed also that the other would not bring an action of debt if the release was delivered since and so one way it hath as vehement presumption as another and for that the intendement is indifferent it is not good unlesse it be shewen by the Plea that it was delivered since the obligation made Ployd ibidem vide plura f. 26. Grounds and Maximes proceeding from the Predicaments From the Predicament of substance SVbstantia prior dignor est accidente Arist 2. de anima the substance is more worthy and before the accident and therefore doth the Law prefer matters of substance before forme and circumstance as 21. H. 7. 24. b. Pleas in Barr and replications though the Plaintiff be afterwards non-suit make an Estopple for they are expresse allegations and substantiall as in debt upon an obligation if the Defendant pleade in Barr an acquittance made at D. or if the Defendant pleade an acquittance and the Plaintiff replyeth that it was made by duress of imprisonment at D. now in another action neither the Defendant shall pleade that the acquittance nor the Plaintiff that the duress was at another place because they were materiall But the matter in the writ and the count maketh no Estopple for they are
who made the rescous by action of the case but if he had been a Bayliff of a Liberty it had been a good returne The Prior of St. Joanes had a priviledge from Rome that he shall pay no Tythes for any Land quae propriis manibus aut sumptibus excolitur which is tilled with his owne hands or at his owne charge The Prior maketh a Lease for yeares before the dissolution the King after the dissolution granteth the reversion it was holden that after the terme expired the Patentee should hold it discharged si propriis manibus aut sumptibus excolitur if it be tilled by him or his servants but if he make a Lease to a farmer he shall pay tythes by the Stat. of 31. H. 8. c. 13. Dier Entry with my beast is my entry and so the Plaintiff shall declare upon a clausum fregit 15. E. 4. 29. 1. E. 4. 15. If a mans servant selleth to me cloth and warranteth it to be of a certaine length the action will lie against the master onely and not against the servant and if A do assume to cure B. of a wound and he sendeth his servant to B. to lay medicines to the wound whereby he is hurt and emparied B. shall have an action against the Master and not against the servant Fulb. l. 1. f. 4. 11. E. 4. 6. By Choke and Brian The Chancellor of the Augmentation Court delivered an obligation made to Queene Mary to his Servant to deliver to the Clerks of the Augmentation The Obligor and his servant conspire together and cancell the obligation the Master was held in this case to be chargeable Dyer 161. If a receiver or Bayliff make a deputy the Writ of account shall be brought against the Bayly only because the mony was received to his use 18. H. 8. 2. Fulb. l. 2. f. 43. A lease for years is made and a letter of Attorny to deliver possession to the Lessee if the Attorny deliver possession to the Attorny of the Lessee it is a good possession and pursuing his authority 25. Eliz. The Earle of Leisters Case Yet many personall things cannot be done by another as Sute reall at the Leete Exception or the Sheriffs turne cannot be done by another Fuâ—b l. 25 2. A man cannot excuse himselfe by an Attorny for contempt as for not serving the Kings Processe but in proper person 22. E. 4. 34. An action of debt upon an obligation the Defendant confessed the Deed and said that he had paid the summ to one C. the generall receiver of the Plaintiff who said he was ready to receive the mony and shewed to the Court the acquittance but because he shewed no warrant of the Plaintiff to pay the money to C. the acquittance that was shewed could not be the Deed of the Plaintiff and therefore the Plaintiff recovered his debt and damages 5. E. 3. 63. Fulb. l. 1. f. 4. Quod per me non possum nec per alium Coke l 4. 24. b. What I cannot doe by my selfe I cannot do by another Custome hath so established and fixed the estate of the Copyholder as by the severance of the inheritance the Copyholder of the Mannor is not distroyed for in that the Lord himselfe cannot oust the Copy-hold no more can any one claiming under him doe it for what I cannot doe by my selfe I can do by another vide ibidem the case between Marrell and Smith Coke l. 11. f. 87. a. In the case of Monopolies A patent was granted by the King unto Edward Darcy for the sole making of Cardes who had made a deputy but it was held void to both for in that it was voide to the Grantee because he was inexpert and the grant made void to him he could not make any expert deputy to supply his place for what I cannot doe by my selfe I cannot doe by another Accessorium non ducit sed sequitur suum principale An accessory doth not leade but followeth the principall Co. Com. 152 a. The incident shal passe by the grant of the principall but not the principall by the grant of the incident As a lease for terme of life rendring rent the Lessor granteth a reversion to another the tenant aturneth all the rents and services shall passe by the word reversion but if he grant the rent to another the Reversion shall not passe by it Littleton ibidem a Lease of a Mannor wherein is a Parke and Fish-ponds excepting the game and after the Lessor grants the reversion the Deeres and Fish shall passe as incidents with the reversion A Statute new made gives an action where none lay before the same Processe Judgement and Execution shall be in the same action as was in other cases at the common Law though the Statute say no such thing 10. H. 7. 10. Coke l. 5. f. 21. b. A Parson is bound to a Prior in one hundred pound upon condition that he resigne his Church within a certaine time to the Prior for a certaine pension as they should agree c. and afterwards the Prior and the Parson agreed of a pension of an hundred shillings and yet the Parson refused to resigne and by the whole Court it was holden that he needeth not to resigne untill he was sure of his pension by Deed. Ployd 235. a. When a man hath a thing by reason of another the thing which comes by reason of the other shall be said to be had in the same capacity as the other was which was the cause of it as 41. E. 3. f. 21. If a Bishop having a villain in right of his Church enter into the Land purchased by the villain he shall retaine it as in right of his Church So if the King have a signiory in right of the Crowne and the Tenant seise and disclaime by which the King recovereth the tenancy he shall hold it in right of the Crowne because in that right he held the signiory which was the occasion of the Recovery ibidem Williams case Noxa caput sequitur accessorium sequitur suum principale Reg. I. C. The offence looketh on the head and the accessory followeth the principall Coke l. 4. f. 44. b. Every Felon is either a principall or an accessory and if there be no principall there cannot be any accessory because the accessory followeth the principall and therefore was Vaux held by the Court to be a principall murtherer although he was not present at the time of the receit of the poison and if any other had procured Vaux to do it he had been accessory vide ibidem plura Vaux Case Coke Com. 57. a. b. In the highest and lowest offences there are no accessories but all principalls as in Riots Routs and forcible Entries and in other transgressions vi armis So in the highest offence as crimine laesae Majestatis there are no accessories And by our Law in murther all that be present aiding abetting or comforting him doth the murther are principall offenders though they
without an originall is voide Kel f. 19. b. A remainder is limited to the King and before the inrolement of the deed the King granteth it over and then the deed is inrolled this will not make the grant good Coke l. 3. f. 29. An executor assigneth auditors to one who was accountant to the testator and his auditors find him in arrearages the Action of debt shall be brought in the Detinet onely and hath respect to the beginning 11. H. 6. If I have a villaine for yeares as executor and the villaine purchaseth land the executor entreth the land shall be to the use of the testator and assets in his hands because the villaine which was the cause of it was to such use Ployd f. 292. a. Chap-mans case Causa origo est materia negotii Cok l. 1. Shellies case f. 99. b. vide As if a servant hath an intent to kill his Master before the execution of his intent departeth out of his service being out of his service executeth his intent and killeth him which was his Master it is petit treason for the execution respects the originall cause which was the malice conceived when he was his servant vide ibidem plura I. S. buildeth a shop on the wast of a Mannor of which the Queene was seis'd the Queen granteth the Mannor to the Earle of Leicester and he never entreth nor taketh rent I. S. dieth and his sonne entreth there is no descent against the patentee because there was no disseisin against the Queene Dyer 266. b. Yet when the law giveth power and authority to doe any thing Exception the law adjudgeth of the thing by the act subsequent not precedent Coke l. 8. f. 146. b. As the law giveth me power or license to enter into a common Hostlery or Taverne or to the Lord to distraine or to the owner of the soile to distrain for damage feasant or to him in the reversion to view if wast be made and to the commoner to enter into the land to see his beasts but if he that entreth into the Hostlery or Tavern maketh trespass or if the Lord that distraineth for rent or damage fesant beat or slay the distress or if he that entreth to see wast breaketh the house or remaineth there an whole night or the commoner cut downe trees in these cases the Law shall judge by act subsequent that they entred to that purpose and shall be trespassors from the beginning for acta exteriora indicant intoriora secreta the outward acts shew the inward secrets and with what minde and with what intent he did enter So if a purveyor take my beasts for the hostle of the King by force of his commission it is legall but if he sell them in Market then the first taking is injurious Coke l. 9. f. 11. a. Tenant in taile hath issue two daughters and dieth and the elder entreth into the whole and after entry maketh a feoffment with warranty which is a lineall warranty for the one and collaterall for the other the law judgeth by the act subsequent that the entry was not generall for them both but that it was onely for her selfe and that it shall be a warranty to commence by disseisin for the one moiety Quod initio vitiosum est tractu temporis non convalescet Reg. I. Civ Quod initio non valet tractu temporis non convalescet Coke com f. 35. a. That which in the beginning is vicious or invalid cannot by tract of time bee made good or valid as tenant for life of a carve of land the reversion to the father in fee the son and heire apparent endoweth his wife of this carve by the assent of the father tenant for life dieth the husband dieth this is no good endowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a free-hold whereof hee could not have endowed his own wife Ployd f. 432. b. A. possessed of an horse selleth the horse upon condition that hee shall pay him at Christmas forty shillings for it and before the said feast he selleth the horse to another and at the feast the first buyer faileth of payment whereupon A. reseiseth the horse yet the second buyer shall not have him because at the time of the second contract A. had no interest nor property nor possession of the horse but onely a condition which was not sufficient to make the contract good A. seised of Lands in see maketh a lease for twenty yeares rendring rent to begin presently and the same day he maketh a Lease to another for the same terme the second lease is utterly void so as if the first Lessee surrendreth his terme to the Lessor or loseth the same by breach of condition or forfeiteth it by making a feoffment upon entry of the Lessor the second Lessee shall not have his terme because the Lessor at the making of the second lease had nothing in him but the reversion ibidem A feoffement to the use of the husband for life the remainder to I. S. the remainder to the wife for her joynture this is not a joynture to bar dower because it did not take effect immediately after the death of her husband Hut Rep. f. 50. An infant or a married woman makes a will and publisheth the same and afterwards dieth being of full age or sole notwithstanding this both Wills are void 10. Eliz. 344. Noy Max. f. 4. A lease for life the remainder to the Major and commonalty of B. whereas there is no such it is void though the King doth create such a corporation during the particular estate so a remainder limited to John the son of I. S. having no such son and afterwards a son is borne to him whose name is John during the particular estate it is void Doder Que malo inchoata sunt principio vix bono peraguntur fine Those things which have a bad beginning can hardly have a good end Coke l. 11. f. 78. As a man seised of Lands in fee by deed upon good consideration granteth the Land after his death to the Queene her heires and successors such grant is not made good by the generall words of the act of 18. Eliz. because it was void in the beginning and with it accordeth 38. H. 6. f. 33. The Abbeffe of Sions case and the Earle of Leicesters case Ployd f. 4000. a stronger case then it vide ibidem plura Magdalen Colledges case Coke l. 4. f. 90. a. If a son and heir apparent of a Baron reteyne a Chaplaine and giveth to him his letters under signe and seale and after his father dieth and this Chaplaine purchaseth a dispensation this retainer and those letters will not serve him in that they were not availeable at the beginning vide ibid. Dâ—uries case Coke câ—m f. 352 b. If a fine be levied without any originall it is voidable but not void but if an originall be brought and a retraxii
amercement is pardoned vide ibidem The husband and wife make a lease by Deed the husband dyeth the wife accepteth the rent if the Lessee lose the Deed of the Lease the wife shall avoid it 15. E. 4. 17. Coke l. 1. f. 2. Buchuâ—sts case If the Feoffor make a Feoffment with warranty the Feoffee shall not have the Charters unlesse by expresse grant but the Feoffor shall have all the Charters and Evidences which are materiall for the maintenance of the title of the Land and upon which he may maintain his warranty paramount but if the warranty be determined he shall have them no longer Ployd f. 382. a. Nevills case The King grants to two for their lives and the life of the survivor of them the Sheriff-wike of Chester and one of them was attainted of high Treason all the Office was forfeited because the Office was entire and could not be severed ibidem The King granteth the Office of the keeper of a Parke to two and the one faileth in discharge of his duty the whole fee shall determine so it is if an annuity be granted to two for Counsell and one of them refuse because the Office and Grant is entire and cannot be severed and the cause ceasing but in one the whole annuity shall cease Exception Dyer 320. Pl. 13. An Arbitrement was between two of diverse things and among others there was one article that one party should have yearly for the space of six yeares twenty shillings toward the keeping and honest education of A. B. and A. B. dyeth before the fourth year of the sixth yeare yet the payment of the 20 s. shall not cease during the six years which is a certaine terme and is a duty to the party himselfe towards the finding of A. B. Dier 141. Pl. 44. King Ed. 6. granteth to the Lady Mary his Sister the Mannor of D. for terme of her life according to the Tenor and effect of the last Will of H. 8. which was that shee should have it so long as she was unmarried afterwards she granted a rent charge out of that Mannor after which grant K. E. dieth by whose death the reversion came to her being Queene and afterwards shee married Philip King c. and it was doubted whether the rent charge should remaine or no. Davis 3. a. b. In ancient times a great part of tenements were holden of their Lords by Socage which was that the Tenants ought to come with their sokes by certaine daies by the yeare to plow and sow the demesne of the Lords and because such workes were made for the livelyhood and sustenance of their Lords they were quitted of all other services and after such services were changed into monies by consent of the Lords though the Lords did alien their demesnes and had no lands to plow or sow yet payed they their rents yearely to the Lords so the Church and religious houses after the procuration of Victualls was reduced to a certaine sum did pay it to the Ordinary yearely though he made no visitation so as the rule The cause ceasing the effect also ceased held not in those cases So Coke l. 4. in Capels case it was resolved that where a man held certaine land by rent for Castle-guard though the Castle was ruined or decayed yet the rent remained and pro doth not import a condition as in the case of an annuity granted pro consilio impendendo but a full and perpetuall recompence and satisfaction Vide Davis plura ibidem In jure non remota sed proxima causa spectatur Bacon Max. f. 1. 2. In the Law the next and not the remote cause is respected For it were infinite for the law to judge of the cause of causes and therefore judgeth of acts by the immediate and next cause as Bar. Empsons case f. 2. An annuity is granted pro consitio seu impendendo and the grantee committeth treason whereby hee is imprisoned that the grantor cannot come unto him for counsell yet the annuity is not determined by this non fesans for the law looketh not on the remote cause to wit the grantors offence which was the cause of the imprisonment but excuseth it because his not giving of counsell was compulsory and not voluntary in regard of the imprisonment which was the immediate cause So if a parson maketh a Lease and be deprived or resigneth the successors shall avoid the Lease for the law regardeth not the cause of the deprivation or the resignation which is the act of the party but the act of the Ordinary in the admission of the new incumbent 2. H. 4. 3. 26. H. 8. 2. A foeffment in fee upon condition that the Feoffee shall enfeoff over and if the feoffee bee disseised and a dissent case and then the feoffee bindeth himselfe in a statute which statute is discharged before the recovery of the Land this is no breach of the condition because the land was never lyable to the statute and the possibility which was the remote cause that it should bee lyable upon the recovery the law doth not respect Coke l. 2. Winningtons case This rule faileth in covenous act where the law taketh heed to the corrupt beginning and also in criminall acts where the law principally regardeth the first motive vide ibidem plura Nihil magis consentaneum est us iisdem modis res dissolvatur quibus constituitur Reg. I.C. and Bracton Nihil tam conveniens est naturali aequitati unumquodque dissalvi eo ligamine quo ligatum est Cok. l. 2. f. 53. a. There is nothing more agreeing to naturall equity then that every thing should be dissolved by the same meanes it was bound As no estate can be vested in the King without matter of record so no estate can be devested out of him without matter of record Ployd f. 553. Walsinghams case and 180. Nevils case 12. H. 7. and many other bookes for nothing is so convenient to naturall equity then that every thing should be dissolved by the same band it was tied and Coke l. 4. f. 57. b. In case of attainder and office the King is entitled by double matter of record and therefore the party grieved ought to avoid it by double matter of record and not by single travers or Monstrans de droit but is driven to his petition vide ibidem plura But when a man avoideth the Kings title by as high a matter of record as the King claimeth though the King be entitled by double matter of Record he may have it by way of Plea as one is attainted of treason by Parliament an office findeth his lands by which the King seiseth them the party may alledge restitution by Parliament and a repeale of the former Act 4. H. 7. 7. b. Finch Nomot 12. Coke l. 5. f. 26. a. Indentures being made for declaring of the uses of a subsequent fine recovery or other assurance to certaine persons and within a certaine time and to certaine uses are but
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
very commendable Ibidem Naturae vis maxima and Catiline said Natura bis maxima The force of nature is very great or more then superlatively great Ployd 309. b. and therefore all things proceeding from nature are not onely respected in Philosophy but also in our law and are of efficacy in our law and taken for a consideration sufficient Ployd 305. and accordingly in Sharingtons case f. 309. It was adjudged that the affection of Andrew Bainton for the provision to his heires males which he had engendred and the affection that he had that the land should remaine in his blood and name of Bainton and the brotherly love that he bore to his brothers were causes sufficient to make uses in the land vide ib dem So consideration of marriage and brotherly love are greater then mâ—ny or matter of recompence to raise an use without transmutation of possession because every one of them is meerely founded on the law of nature ibidem 3 9. a. If a man seised in fee of Lands holden of I. S. by fealty and ten pounds of rent and he giveth it in frank marriage to one with his daughter the father shall pay the ten pound yearely untill the fourth degree is passed and shall have nothing of the Donees for it because it was given to his daughter in marriage for her advancement and for that reason the charge is translated from the daughter to the father and the consideration of it is nature Ib. f. 305. a. If I make a contract with another that if he will take my daughter to wife that I wil give him twenty pound if he take her to wife he shall have action of debt for the twenty pound in our Law 22. E. 3. Ass P. 70. and yet I have nothing by it and if a man hath not regard to nature it shall be nudum pactum Ibid. Yet the Law hath such respect to nature and conjunction of blood as in diverse cases it matcheth necessity of blood with the consideration of profit as the sonne may maintaine his father and one brother another 19. E. 4. 5. and Brothers and Cosins shall not wage Battaile in a Writ of Right The statute which maketh it felony to receive or give meat to one which committeth felony he knowing it extendeth not to a woman that receiveth and giveth meat and drink to her husband in such case Ployd Dyer f. 300. A feoffment to the use of himselfe and after his decease to the use of Alice which he intended to marry untill the issue which he doth beget of her shall be of the age of 21. yeares and after the son commeth to such an age then to the use of his wife during her widdow hood the husband dieth without issue it was adjudged the wife shall hold the fee it being by way of use otherwise it had been by estate executed If my brother hath a suit against my Cosin and Nephew I may maintaine the cause of my Cosin though my brother be neerer 4. H. 6. 17. 14. H. 7. 2. If a man menace me that he will imprison or hurt my father or child if I make him not such an obligation and I make it I shall avoid this by duresse as if he had menaced me 15. H. 6. 17. and 21. E. 4. 13. Exception Yet a consideration of blood in a personall contract as to give money is not good Lex respicit naturae ordinem Coke com 197. a. b. The law will not suffer any one to demand any thing contrary to nature and reason As a tenant in common may have an assise for the moiety of twenty shillings and the moiety of a pound of Pepper but for a Hawk and an Horse albeit they be tenants in common they shall joyne in an assise for the law will not permit any one to make his plaint in an assise contrary to the order of nature and which by nature he cannot recover as the moiety of an horse or any other entire thing for that were a vain thing lex neminem cogit ad vana inutilia and the Law compelleth none to vaine and unprofitable things Coke com f. 9. 2. a. The law respecteth the order and course of nature as if the tenant hold by a rose or a Bushell of Roses to pay at the feast of Saint Iohn Baptist because they are flowers not to be kept therefore are they to be delivered at the time of growing and the Lord may demur to distraine till that time neither is the tenant driven by law artificially to preserve Roses for the law in these cases respecteth nature and the course of the yeare For as Littleton here saith ars imitatur naturam art doth imitate nature Ployd f. 540. b. when diverse things are done at one and the same instant and the one cannot take effect without the other the common law shal adjudge it to precede it to follow which aptly ought to precede or follow as if a disseisor maketh a Lease for yeares and then hee and the disseisee release by deed to tenant for yeares there the law shall adjudge the release of the disseisee first to take effect and then the release of the disseisor for there is no privity or estate in the Lessee upon which the release of the disseisor may enure if the release of the disseisee doth not first inure So if tenant for life maketh a Lease for yeares and he and the other in the reversion in fee confirmeth the estate of tenant for years to have and to hold to him and his heires the estate of him for life shall passe first and then he in the remainder vide ibidem Paramors case Sicut natura in suis operationibus non facit saltum ita nec lex Arist 9. de motu animalium Coke com 238. b. as nature in her operations maketh no skips so also doth not the law as the writ de ingressu super discesinam is upon a disseisin made to the demandant or some of his Ancestors of which there are four kinds the first is against the disseisor upon a disseisin done to himselfe and this is called a writ of entrie of the nature of an assise sur disseisin en le pâ—r when the heire by descent is in the per by his Ancestor or when the disseisor maketh a Feoffment in fee gift in taile or lease for life the third is entry suâ— disseisin en le per cui as where A. being the feoffee of D. the disseisor maketh a feoffment over to B. there the disseisee shall have a Writ of entry sur disseisin of lands c. in which â— had no entry but by A. to whom D. demised the same who unjustly and without judgment disseised them These are degrees which are to be observed or else the writ is abateable for as nature so the law doth nothing by skips but by degrees The fourth is the entry sur disseisin in the post which lyeth when after the
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
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
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
enrolled enfeoff the King without any consideration the King shall be seised to his owne use as having such prerogative in his person that he shall not be seised to the use of any other 28. H. 8. 7. Dier Bokenghams case by Knightley Cok l. 2. f. 71. b. It is not unjust but equall that the bargain or shall annex such a condition to the State of the land as he pleaseth for cujus est dare ejus est disponere he that hath power to give hath power to dispose ibidem Coke l. 7. f. 6. Calvins case The King by his letters patents or the Parliament by thier votes may grant denizations without limitations or restraint or else limited denizations as to an alien and the heires males of his body 9. E. 4. f. 7. in Bagots case or to an alien for terme of life as to John Fenell 11. H. 6. 3. Or else upon condition whereof I have seen diverse presidents for who hath power to give hath power to dispose ibid. Modus dat domationi Fleta Ployd f. 25. a. The mannor of the gift which the donor limiteth maketh a law to the donee for though in the preamble of the Act of W. 2. there be but three estates limited to wit especiall taile franke-marriage and generall taile yet may the donor make other tailes by his limitation for his will is a law as to the taile and so heires males of the body of the donee and taile to the heires females of the body of the Donee and all other tailes are within the purview of the Act for the will of the donor is the effect of the stature and from it it followeth that the alienation of the donee shall not bind the issues nor the donor And the second wife shall not be endowed neither can the donee charge the land with a rent-charge or other encumbrance neither shall the land be forfeited for felony and all these are included in the first purview to wit that the will of the donor shall be observed and are but consequences and explanations of the first purview vide ibidem plura But if a gift bee repugnant or contrary to law Exception as a gift made upon a condition unlawfull or impossible it is void and of no effect to gain any thing by the making of it in our law As if the condition be to kill a man Ployd f. 34. b. Or if an obligation be made to save one harmeless for killing a man Ibid. f 64. b. these conditions are void So a feoffment made that the feoffee shall not alien the land is void because it is contrary to law for by the law tenant in fee-simple hath power to alien to any man for if such a condition should be good then the condition should oust him of all the power that the law hath given him which is contrary to reason Littleton The like law is upon a devise in fee upon condition that the devisee shall not alien the condition is void And so it is of a grant release or confirmation or any other conveyance whereby a fee-simple doth pass for it is absurd and repugnant to reason that he that hath no possibility to have the land revert to him should restrain his feoffee in fee-simple of all his power to alien And so it is if a man be possessed of a lease for yeares or of an horse or of any other Chattells reall or personall or give or sell his whole interest or property therein upon condition that the Donee or Vendee shall not alien the same the same is void because his whole interest and property is out of him so as hee hath no possibility of a reverter and it is against trade and traffick and bargaining and contracting betweene man and man and against reason that he should oust him of all power given him for regulariter non valei pactum de re mea non alienda a contract or condition that I shall not alien that which is my owne doth not hold and suiquum est liberis hominibus non esse liberam rerum suarum alienationem it is unjust that freemen should not have liberty to alien their owne estates But these are to be understood of conditions annexed to the grant or sale it selfe in respect of the repugnancy and not to any other collaterall thing Coke com f. 223. a. But before the statute of quia emptores terrarum A man might have made a feoffment in fee and added further that if he and his heires did alien without licence that he should pay a fine it had beene good then and then the Lord also might have restrained the alienation of the tenant by condition because the Lord had a possibility of reverter and so it is in the Kings case at this day because he may reserve a tenure to himselfe If A. be seised of black Acre in fee and B. enfeoffeth him of white Acre upon condition that A. shall not alien black Acre the condition is good for the condition is annexed to other land and ousteth not the feoffee of his power to alien the land whereof the feoffment is made and so no repugnancy to the State passed by the feoffment and so it is of gifts or sales of Chattels realls or personalls Coke ibidem But if a feoffment be made upon condition that the feoffee shall not infeoff I. S. c. This is good for he doth not restrain the feoffee of all his power and in this case if the feoffee infeoff I. N. of intent and purpose that he shall infeoff I. S. some hold that this is a breach of the condition for Quando aliquid prohibetur fieri ex directo prohibetur per obliquum for when any thing is forbidden to be done directly it is also forbidden to be done collaterally or obliquely Coke ibidem b. And a gift in taile that is made upon condition that the donee nor his heires shall not alien in fee in taile or for terme of anothers life is good to all those alienations which amount to any discontinuance of the estate taile or is against the statute of W. 2. but as to a recovery the condition is void for that is no discontinuance nor against the said statute Neither is a collaterall warranty or lineall with assets in respect of the recompence restrained by the said statute no more then a common recovery is in respect of the intended recompence Ibidem If a man make a feoffment to Baron and feme in fee upon condition they shall not alien this is good to restraine them by feoffment or alienation by deed because it is tortious but to restraine their alienation by fine is repugnant void because lawfull ibidem Voluntas reputabitur pro facto Bract. the will shall be esteemed for the deed If no place be limited where money is to be paid in the condition of a Bond and the Obligor at or after the day of payment happen in the company of the obligee and offereth
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
it shall be apportioned vide ibidem plura If a man be bound to appeare at a day before Justices at which day the obligor casteth him into Prison so as he cannot come the bond is saved otherwise if he were in Prison for Felony or any other misdemeanor for that is his own act and fault 32. H. 6. Bar 60. Or if he cast himselfe into Prison Nâ—y Max. f. 13. An infants appeale shall not stay for his full age for he shall not take advantage of his own wrong 27. H. 8. 11. One in Execution escapeth and the Goaler taketh him againe the party if he will may have him to remaine in Prison in execution for him still for the escape is his own wrong 13. H. 7. 1. So Coke l. 3. in Britons case If one in Prison upon execution escape if he be taken he shall not bring an Audita querela to discharge himselfe of his imprisonment for he shall not take advantage of his own wrong He that is party to a wrong shall not take advantage by the same wrong Perk. 41. b. As if Lessor and Lessee for yeares joyne in the cutting downe of twenty Oakes the Lessor shall not punish him in a Writ of Wast and take advantage of his own wrong The heire which is party to the death of his Father shall not have an appeale of it And if issue in taile disseise the Discontinuee of his Father and then enfeoff his Father and his Father then dyeth seised and the issue in tail enter he shall not be remitted If Lessee for life of one Acre of Land leaseth the same Acre to his Lessor for yeares the remainder to a stranger in fee and maketh livery and seisin to the Lessor accordingly it is no forfeiture Perkins ib. If tenant for terme of life enfeoff the feme of the Lessor of the same Land leased and maketh a Letter of Attorny to the Lessor to make livery and seisin and he doth so accordingly it is no forfeiture Perk. ibidem f. 42. a. If an house fall down by tempest the Lessee for life or yeares hath a speciall interest to take Timber to reedify the same if he will for his habitation but if the Lessee pull down the house the lessor may take the Timber as parcell of his inheritance and besides have an action of Wast and recover treble damages Coke l. 4 f. 63. a. in Harlackendems case A deviseth lands to B. untill eight hundred pounds be levied for the marriage of his daughters his Son and Heire entreth and concealeth the will receiveth the profits before the will is discovered then the devisee entreth receiveth the profits until they amount to six hundred and forty pounds the heir is to supply the rent for the heire shall not take advantage of his own wrong Coke l. 4. Dormit Lex aliquando jus moritur nunquam Coke com 279. b. For as Littleton there hath it it is commonly said that a right cannot dye For of such an high estimation is right in the eye of the Law as that the Law preserveth it from death and destruction trodden it may be but not trodden out for where it hath been said that a release of right doth in some cases enure by way of extinguishment it is so to be understood as here Littleton saith in respect of him that maketh the release or else in respect by construction of Law it enureth not alone to him to whom it is made but to others also who be strangers to the release which as hath been sayd is a quality of an inheritance extinguished As if there be Lord and Tenant and the Tenant maketh a Lease for life the remainder in fee If the Lord release to the Tenant for life the rent is wholly extinguished and he in the remainder shall take benefit thereof and even so when the heire of a disseisor is disseised and the disseisor maketh a release for life the remainder in fee if the first disseisee release to the Tenant for life this shall enure by way of extinguishment because it shall enure to him in the remainder who is a stranger to the release and yet in truth the right is nor extinguished but followeth the possession to wit the tenant for life hath it during his time and he in the remainder to him and his heirs and the right of the Inheritance is in him in the remainder for a right to Land cannot dye or be extinct in deed and therefore if after the death of tenant for life the heire of the disseisor bring a Writ of right against him in the remainder and he joyne the Mise upon the meere right it shall be found for him because in Judgement of Law he hath by the said release the right of the Disseisee for it is commonly and truly said that right never dyeth but is transferred and conveyed by Feoffments Grants Confirmations Prescriptions or Fines c. releases from one man to another so as the Species of it continually remaineth Res inter alios acta alteri nocere non debet factum unius alteri nocere non debet Coke com f. 152. b Things acted among others ought not to hurt either and one mans deed ought not to hurt another and Coke l 9 f. 59. It is the rule of Law and reason prohibetur ne quis faciat in suo quod nocere possit in alieno sic utre tuo ut alienum non laedas it is forbidden least any one should doe that in his own that may hurt another and so use your own that you injure not another If a man hath a Water-course running in a channell of a River up to his house for his necessary ules and a Glover levy a Lime pit for Calve-skins and Sheep-skins so neer his Water-course that the corruption of the Lime pit hath corrupted it by which his tenants goe out of his house for it an action of the case lyeth as is adjudged in 13. H. 6. 26. b. So he who hath severall Piscaries in his own Water shall have an action of the case against him who erecteth a Dye-house by which he maketh slime filth and other dirty things to run out of the said house into the said Piscaries by which he hath totally lost the profit of the said Piscaries vide in the Book of Entries Nusance f 406. b. vide the same in Aldreds case for erecting of a Swine-house plura alia ibidem And so also in Penruddocks case Coke l. 5. and in Batius case l. 11. 54. Where you shall find diverse notable cases to the same purpose Lessee for yeares shall so take his hedge-boote that he doth not destroy common of Estovers which another man hath there 46. E. 3. 17. He which hath common in Land not inclosed shall keep his Cattle out of a stranges Land 20 E. 4. 11. If Beasts be driven by the high way he ought at his perill to keep them out of the Lands adjacent to the high way
menace me in my goods and that he will burne certaine evidences of my Land which he hath in his hands if I will not make him a bond and if I enter into bond by this terror I cannot avoid it by plea because the Law holdeth it an inconvenience to avoid a specialty by such matter of averrement and therefore I am put to my action against such a menacer But if he restraine my person or threaten me with a battery or with burning of my house which is a protection to my person or with burning an Instrument of Manumission which is an evidence of my En-franchisement if upon such menace or duresse I make a bond I shall ovoid it by Plea 7. E. 4. 21. So if a Trespassor drive away my Beasts over anothers ground and I pursue them to rescue them I am a Trespassor to him upon whose ground I came but if a man assaile my person and I fly over anothers ground I am no Trespassor 13. H. 8.15 21. H. 7. 28. Bacon F. Max. s 29 30. vide ibidem plura An injury is two-fold either in factis or in verbis in factis as when a man is assaulted or beaten in verbis when a man is slandred and by termes diffamed the grounds of the first injury we have already surveyed which consisted in assaults and corporall injuries now are those of the second sort to be set forth which are grounded on slanders and diffamations from whence arise these grounds Lubricam linguae non facile in paenam est trabendum R.I.C. The lightnesse and rashnesse of the tongue is not easily to be drawn into punishment There are diffamatory words which proceed from the weaknesse or lightnesse of the braine or any rashnesse in the tongue which because they are not thought to be spoken malitiously passe for the most part unpunished for in all such cases words of collor and in heate as to call one cousener and crafty knave common extortioner and drunkard witch rogue Pillory knave villaine and unlesse he say villaine to such a man or regardant to such a mannor will beare no action for these are not malitiously spoken Finch Nomot f. 186. b. And by reciprocall reason the malice of those which bring actions of slanders debilitateth their cases and therefore Coke l. 4. f. 15. b. It was the resolutions of the Judges that actions of slanders shall not be maintained by any strained constructions or any favour shewn for the supportation of them because they abound more in these dayes then heretofore and the malice of men encreaseth malitijs hominum est obviandum But of such light hasty and rash speeches the civill Law also taketh no cognisance no though a man in this case speaketh ill of the Prince himselfe and the civill Law is so far from taking hold of such words that the Emperor himselfe hath said of them thus Siquis imperatori malediceret si id ex levitate processerit contemnendum est si ex in sania miseratione dignissimum If any should speak evill of the Emperor if it proceeded from lightnesse it is to be contemned if from madnesse it is most worthy of commiseration But in case that such workes be of hatred and malice as if one reprocheth another with any thing in his state and condition wherwith he is not justly to be charged then is it altogether punishable for that thereby charity between man and man is violated and the peace of the Common-wealth is many times broken and disturbed and as Coke saith l. 4. f. 15. b. ad verbis ad verbera perventum est and in this sense the rule of the Cannon Law may be taken to be true Omnis qui detrahit fratri suo homicida est every one who detracteth from his brother is a man-slayer to wit in fo ropoli for whosoever hateth his Brother is a murtherer 1. Joh. 3.15 And therefore at the common Law if a man malitiously utter any false slander to the indangering of one in Law as to say that he hath reported that mony is fallen for he shall be punished for such a report if it be false 9. E 1. Vttings case Or if he touch him with some hainous crime as that he went about to get poison to kill the child that such a woman goeth with and yet it is no Felony Or lie in waite to rob him or procured another or agreed with another to murder him though he were not murdered in deed or sought his life for his Land 17. Eliz. Hacks case Or for impairing his trade of life as to call a Merchant a banquerupt for it is his living but so it is not of a Gentleman or an Attorny an Ambodexter or to say he dealeth corruptly Finch Nomot f. 186. Or to call the Plaintiff theefe 27. H. 8.22 Or for calling a man a false or perjured man 28. H. 8. B. or for calling the Plaintiff a false Justice of Peace 4. E. 6. 112. An action of the case will lye for those are words of eminent slanders and of great import and such as concerne the estate condition and life of man and therefore Coke l. 44.15 In our Books actions for slanders are most rare and those that are brought are for words of eminent and great import Albeit diffamations and scandalls properly consist in words yet may they also be done by writings as by diffamatory Libels which by Bracton are called Carmina famosa and by Senica Contumeliosi Libelli infamous Rhimes and contumelious Libells which flow from malice and pride and tend to contempt and dissention and therefore Plato banished such out of his Common-wealth and the Romans punished them with death L. 1. de Civ Dei c. 12. St. Augustine Romani probris injurijs poetarum subjectam vitam famanque habere noluerunt capite etiam puniri sancientes tale carmen condere siquis auderet the Romans would not have their lives and fame Subject to the scofs and injuries of Poets ordaining that whosoever should dare to compose any such verse to be punished with death which also was one of the Laws of the twelve Tables ibidem c. 9. And they appointed the Aediles and Triumviri capitales to foresee that no prejudice should grow to the Common-wealth by Libells to sow the seeds of sedition and novelty whose prudent example the wise King Henry the seventh was induced to pursue Bacon Hen. 7. f. 138. who as Sir Francis Bacon historizeth it hanged and executed five meane persons for spreading of swarmes volleys of Libels against his Highnesse and contriving and dispersing thereof which as he saith are the femalls of sedition and which also in conscience is a hainous crime and little inferior to high treason and therefore particularly prohibited by the Law of God Exodus 22.28 Thou shalt not revile the Prince and according to the originall Gods nor curse the ruler of thy people and Ecclesiastes 10.20 Curse not the King no not in thy thought wherein Magistrates
are included because it concerneth the scandall of government and by the civill Law in generall this diffamatory crime is made capitall as if any man doe devise any slanderous Libell against one and it happeneth that another find it and he doth not cancell it and teare it in peeces but doth publish it to others he is punished with capitall punishment and so is the author likewise punished Fulb. l. 2. f. 27. Which description of a Libell accordeth with ours at the common Law as in Lambs case it was resolved Coke l. 4. f. 59. b. That every man who shall be convicted for the publication of a Libell either he ought to be contriver of the Libell or the procurer of the contriving of it or a malitious publisher of it knowing it to be a Libell and saith it is a great evidence that he doth publish when as he knowing it to be a Libell doth write a copy of it unlesse that afterwards he can prove that he delivered it to a Magistrate to examine it for then the act subsequent explaineth the condition precedent and though our Law be a charitable dealing mother and in all cases favoreth the life of man even above the other two which are most favored in the Law There are three things most favored in the Law life liberty and Dower Coke Com. so as it doth not punish this offence with capitall punishment yet doth it detest condemne and punish it as a step dam to rancor and violent speeches the abortive children of malice and as a more odious and perilous crime then other open scandalls For as Coke l. 5. f. 125. b. The nature of Libelling is secret and robbeth a man of his good name which ought to be more precious unto him then his life and it is a very difficult matter to finde out the Author and therefore when the offendor is known he ought to be severely punished as one who poisoneth another secretly is a greater offendor then he that killeth a man openly because the offendor cannot be so easiy prevented or inverted it mattereth not whether it be true or if the party against whom it is made be of good fame or evill fame for in a setled state of government the party greived ought to complaine for every injury done to him in the ordinary course of Law and not by any meanes to revenge himselfe either by the unlawfull course of Libels or otherwise and it is not materiall whether the Libell be in writing or without writing or whether in rime or prose or whether by Picture as to paint the party in any shamefull or ignominious manner or by signes as to fix a Gallowes or any other reprochfull or dâ—shonorable signes at the house of the party or elsewhere and therefore for the reasons abovesaid and that though the Libell be made against one yet doth it incite those who are of the same family or society to revenge and so tendeth to the breach of peace and may be the cause of effusion of blood It was resolved that a Libeller shall be punished by enditement at the common Law or by bill if it be denied or ore tenus by confession in the Star-Chamber and according to the quality of his offence he may either be punished by fine or imprisonment and in an exorbitant case by Pillory and losse of his eares vide ibidem plura Veritas nihil veretur nisi abscondi Coke l. 9. f. 20. b. Truth feareth nothing but to be hid and concealed Truth considered principally appertaineth to the Metaphysicks materially to naturall Phylophy instrumentally to Logick but practically to the Ethicks or morall Phylosophy and is nothing else but an affection of our speech and actions agreeing with the mind and is properly called veracitas that is a speaking of truth and of this truth is the ground to be understood that it is afraid of nothing then to be obscured for covin is so mixt with truth or truth with covin that it often deceiveth a prudent observer But though truth be so mixt with covin that evill herbe as Ploydon phraseth it such a conjunction and mixture will prove unsavorie and the goodness is turned to mischeivousnesse and the law wil never permit covin and falsity to suppresse verity and fidelity but in all cases laboureth to discover and censure them As if there be Lord and Tenant by fealty and rent and the tenant maketh a Lease for yeares and the Lessor hath made fealty and paid the rent continually and yet the Lord distraineth the Cattle of the Lessee for the rent where in truth nothing is behind and avoweth upon a meere stranger who never had any thing as if he were his very tenant for the arrearages of rent this false avowry of the Lord upon a stranger that is not his tenant shall not hurt the Lessee against the truth of the case but upon speciall matter disclosed he shall have aid of his Lessor who is the true tenant and therefore if the Lessee in such case alledge that his Lessor was and still is seised of the tenancy in his demesne as in fee and so holdeth it of the Lord by the services c. of which services the Lord hath been and yet is seised by the hands of the Lessor and that the tenant hath leased the Land to him and that the Lord hath charged the Plaintiff unjustly to avow upon one who hath nothing in the tenancy and therfore he prayeth in aid of the Lessor in this case upon the speciall matter he shall have aid for that without his Lessor he cannot plead this matter in abatement of the avowry neither shall the Lord be compelled to avow upon the Lessor and the false avowry of the Lord upon a stranger that is not his tenant shall not hurt the tenant contrary to the truth of the case for truth feareth nothing but to be concealed and the Law will never permit falsity to suppresse a truth Coke ibidem vide plura The Statute of W. 2. c. 3. giveth a Cui invita upon recovery by default before which such recovery was a wrong to the feme and an hard thing as the Statute saith and therefore a Cui ante devortium is given by the equity of that Statute for it goeth in oppression of falsity and advancement of verity so the Statute of Marlebridge cap. 6. maketh an ordinance against those who use to enfeoff their first borne and heires within age and yet if his first Son dyeth and he enfeoffed his second Son who is his heire it is within the equity of the Statute or if he levy a fine to him which is matter of record it shall be within the equity of the Statute and yet the Statute speaketh of a Feoffment and the cause is for that covin is allwayes abhorred in our Law and states made in suppression of it are for the publick good and therefore shall be extended by equity And therefore the Statute of 1. H. 7. c. 1.
quo malitia hominum compesci tranquilitas conservari potuerit absolute injusta non est ideoque fures merito illi subjiciuntur when no other remedy remained by which the malice of men might be allayed and tranquility conserved it is not absolutely unjust and therefore deservedly are the eves subject unto it for which reason most Nations of the universe justly inflicted capital punishment on such notorious Delinquents as by the Law of the twelve Tables if any man did cause his beasts to feed upon or himselfe did cut and carry away Corne growing upon the ground if he were of full age he was ordained to be hanged and to be sacrificed to Ceres if not he was whipped and yeelded either the damage and if he were obstinate the double So by our common Law the stealing of a Doe which is tame and domesticall is Felony but as Mr. Stanford it seemeth that he that stealeth it should have certaine knowledge it is tame but if the Doe be killed and then stolen this certainly is Felony Stanford l. 1. c. 25. And likewise if a man cut Trees and at the same time carry them away this is a Trespasse and is but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but if they lye upon the ground a long time as the goods of the owner of the soile this is Felony and is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 22. E. 3. Cor. 156. 10. E. 4. 15. and Stanf. 25. And for the like reason as this offence is more nocumentall to the common good of some Countries or some Cityes it is more severely and suddenly there punished as among the Phrygians he was put to death that stole any instrument of husbandry or did kill an Oxe was fit for the Plough because the living of those Countrys did much consist of husbandry so in Hallifax he that stealeth but a yard of cloath is presently put to death because the whole livelihood of most of them consisteth in cloath Malitia mutat legem Dyer f. 104. b. malice altereth the Law as an infant in case of murder shall be tryed for his life where malice appeareth and not otherwise because as Dyer there saith malitia supplet aetatem 3. H. 7. And malice in homicide altereth the Law in those are of full age as mans slaughter is a fact lesse hainous because it is done on a suddaine without malice precedent as if two of a suddaine fight together without precogitated malice and after many blowes given the one flyeth from the other and the other goeth in the next house for a weapon and incontinently pursueth and killeth him that flyeth this is but man slaughter by the common Law because it was done in a continuall fury and shall have his Clergy but shall forfeite his goods Cromp. I. p. 23. So if two without any malice precedent did fight together and one cometh to part them and is killed by one of them it is man slaughter in him that killed him ibidem but if they had fought together ex malitia praecogitata having a purpose to kill it is Felony in them both 25 Ass 180. But where a man killeth another upon malice fore-thought whether he killeth him openly or secretly or whether he that is slain be an English man or of another Nation if he live in this Realme under the Queenes protection Stanf. f. 18 he cannot have the benefit of Clergy So it is if one kill another upon malice implyed which is when one killeth another without any defence on the part of the other as a Goaler had malice to a prisoner in his custody because he suspected he was too familiar with his wife and the prisoner purposing to goe out of prison as he was wont for his disport the Gaoler suddenly struck the prisoner on the head so that he fell to the ground whereupon he dyed and it was adjudged murder Cromp. I. P. f. 20. So if a theef rob another man and kill him this is murder though he never saw him before neither had any inveterate malice against him yet he had malice before the murder to this intent that he would rather kill him then be disappointed of his purpose Ployd com 474. If the Justice of peace with the Sheriff come to suppresse Riotors and one of their attendance is slain by one of the Riotors this is murder of him and all the Riotors being present Cromp. I. P. 21. And if one without quarrell killeth another standing by this is implicit murder ibidem f. 22. A writ of conspiracy will not lye unlesse malice appeareth in the prosecution and therfore the Writ saith quod ipsum in prisona nostra detineri falso malitiose procuraverat that he procured him to be falsely and malitiously detained in prison F. N. B. f. 115. G. and 15. Car. B. R. A man endited others at the Sessions in the old Bayly who were acquitted and the Defendants removed the enditement into the Kings bench and prayed a copy thereof to the end they might bring a Writ of conspiracy and it was denied by the Court unlesse the Recorder will say that there appeared malice in the prosecution for a man shall not be punished for lawfull prosecution upon a just surmise without malice Semel malus semper praesumitur esse malus Reg. I. C. who once is evill is allwayes presumed so to be which as the Civilians is to be understood in eodem genere mali in the same kind of evill as if a Souldier hath behaved himself â—ill in the Militia he is no more to be trusted and so perjured persons who have once forsworne themselves and for it be convicted cannot be admitted after to give Testimony in any cause and this is so holden both in the Civill Law the Common Law no more also can another like infamous persons as if one be attainted of a false verdict or of a conspiracy at the suite of the King or convicted of a Premunire or of forgery upon the Statute of 5. Eliz. c. 14. and not upon the Statute of 1. H. 5. c. 3. Or convict of Felony or by Judgement lost his eares or stood upon the Pillory or tumbrell or been stigmaized or branded or the like whereby they become infamous for some offences for quae minoris sunt culpae majoris sunt infamiae Coke com f. 6. b. Malitiae vitium connexum est personae committentis malitiam Reg. I. C. the vice of malice is connexed to the person of him who committeth the malice As if I have a malitious intent to kill one man and in the execution of my malice I kill another the malicious intent shall be connexed to my person and I shall be adjudged a murtherer as if one of malice prepense shooteth at another intending to kill him and his Arrow killeth another to whom he bore no malice it shall be murder in him for he intended in his act to murder and that intention shall be connexed to his person and it shall not be an excuse for him to say
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
Court of Record for albeit the Grantee bringeth a Writ of Annuity he may distrain and discharge the person but if he bring a Writ of Annuity and therupon appeare and Court this is a determination of his election in Court of Records albeit he never proceed any further as if the Wife be endowed ex assensu patris if she after her Husbands death bringeth a Writ of Dower at the Common Law and Count albeit she recover not she shall never claim her Dower ex assensu patris because she hath determined her election So if the Grantee bring an assise for rent and make his Plaint he shall never after bring a Writ of Annuity and if he distrain and avow the prisall of the Distresse in a Court of Record it is a determination of his election before any judgment gâ—ven according to the rule Electio semel facta placitum testatum non patiter regressum Co. Com. 220. a. But otherwise it is where a man hath election to have severall remedies for a thing is meerly personall or meerly reall from the beginning as if a man may have an action of debt or an action of account at his pleasure and appear to it and after is non-suit yet may he have an action of debt afterwards because both actions charge the person the like Law is an assise and a Writ of Entry in the nature of assise ibidem W. brought an action of the case against F. and declared that the Defendant had sued out a Fieri facias upon a judgment given against him for the Defendant and by virtue thereof took Goods of the Plaintiff to the value of the Damage and so made his return pro defâ—ctu emptoris and that the Defendant well knowing this to the intent to trouble vex and charge him did afterwards sue out another Fieri facias to the same Sheriff and delivered it to be exexecuted who did thereupon levie the money of other Goods of the Plaintiff and paid it over to the Defendant whereby the now Plaintiff was double charged whereupon the Defendant pleaded not guilty and it was found against him and it was adjudged for the Plaintiff because he was twice vexed and disturbed and that wilfully by the Defendant who had first one execution inchoate which he ought to have followed we all knowing it and not to have taken another but if he had been ignorant and had not known of the Goods first taken he had not been lyable to the other action Hob. 37.3 Waterers case Euilibet in sua arte perito est credendum omnes prudentes eos admittere solent qui probantur ab iis qui in sua arte bene versati sunt Arist 1. Topic. c. 6. Co. l. 7. f. 19. a. The reason of the wisest man which professeth not the Lawes of England in cases which concern the Lawes of England is not to be beleived but the legall and profound reason of such who by diligence study and long experience and observation are so learned in the Lawes of this Realm as out of the reason of the same they can rule the case in question in this sense this rule is to be taken that we are to beleive every one in his art and all wise men are wont to admit those things which are approved by them are well versed in their own Art Coke l. 4. f. 29. a. Agnes was contracted to Bunting and after married Twede Bunting libelleth against Agnes in the Court of Audience upon the said Contract and upon the proceedings of which Libell it was decreed that the said Agnes should undergo marriage with the said Bunting and thereupon it was pronounced decreed and declared the said marriage with Twede to be null And though that Twede being de facto husband of the said Agnes was neither party to the said Suit nor to the sentence in the Spirituall Court which dissolved the marriage between him and the said Agnes but rhe said Agnes only yet the sentence against the Feme onely being onely declaratory was good and shall bind the Baron de facto and in regard that the Cognisance of marriages appertain to the Ecclesiasticall Court and the same Court had given sentence in this case the Judges of our Law ought to give faith and credit to their proceedings and sentence although it be contrary to the reason of our Law and to think that their proceedings are consonant to the Law of the holy Church for we are to beleive every one is skilfull in his art vide ibidem plura Coke l. 5. f. 7. in Caudries case Quod quisque norit in hoc se exerceat Co. l. 9. f. 13. a. Let every one exercise himself in that which he hath knowledge and skill It is the wisdome of the Law to refer things to persons in which they have knowledge and shall be expert and therefore the Law will not constrain the Jurors which have no knowledge in the Law to take upon them Cognisance of the points in Law or in cases which concern Life Member or Inheritance Frank tenements Goods and Chattels but to leave them to the consideration of the Judges nor the Judges to give their opinion of questions and doubts in Law upon a suddain but in all cases to have the truth of the case and upon conference and consideration to adjudge according to the Law Coke l. 8. f. 130. a. The intent of the act of 5 Eliz. c. 4. was that no man should take upon him any Art Mystery or any Occupation but such in whom is science and knowledge and therefore the statute intended that he that used any Art Mystery or any occupation at the time of the act might use the same art or mystery for every one is to exercise himself in that art which he knoweth And it was said that the Brewers should have science and skill in brewing good and wholesome Beer for it greatly conduceth to the health of men Ployd f. 128. b. Alwaies our Predeceossors for the sense of latine words have consulted with the Grammarians and others who have knowledge therein and that sense which the Grammar warranted they have allowed as 9 H. 7. 14. One was bound in an Obligation upon the condition that he should pay five pounds in fine Gold and the Obligation was puri auri and there it appeareth that the Masters of Grammar were sent for to give their counsell what was latine for fine Gold vide ibidem plura Coke l. 11. f. 10. b. Matters in Law shall be put in issue to be tryed by the Country for sicut ad quaestionem facti non respondent judices ita ad quaestionâ—m Juris non respondent juratores As the Judges do not answer to the question of fact no more do the Jurors answer to the question in Law and if the Jurors take upon them the Cognisance of the Law and find the speciall matter mistake the Law the Judges of the Law shall give judgment upon the speciall matter according to
lands of the Grantor H. 13 E. 4. f. 6. So if the Title appeareth to the King upon Plea of other parties the Court of Office shall adjudge it for the King though he be not party to the Issue Ployd f. 243. b. vide ibidem plura And as the Common Law cannot bind the King no more can private Customes and therefore the custome of that if one pawn Goods that he that hath the pawn shall hold them whose soever they be untill the mony for which they were pawned be paid unto him shall not bind the King where his goods were pawned by a stranger So sale of goods made by a stranger â—n Market-overt shall not alter the property nor bind him M. 3. H. 6. 28. And if a man have wrack of the Sea if the Goods of the King be wracked he shall gain no property by it against the King And so it is of Prescription to have goods waved or estrayed M. 35 H. 6. 27. Ployd ibidem vide plura Nullum tempus occurrit regi Ployd f. 243. No Prescription of time runs against the King As if right of entry descend to the King and the Disseisor dieth seised it shall not take away the entry of the King M. 35. H. 6. 27. So if a Villain alien his land the Lord may enter when he pleaseth Coke com f. 41. b. If Tenant for life or Tenant in Dower grant over his or her estate and the Grantee dieth there shall be an Occupant but against the King there shall be no Occupant because nullum tempus occurrit regi Coke l. 6 f. 29. b. At the Common Law if any one had usurped upon the King and his Presentee had been admitted instituted and inducted for without Induction the Church is not full against the King yet the King may have a Quare Impedit and by it he shall remove the Incumbent for no act of the Bishop or any other can bar the King of his right nullum tempus c. vide ibidem plura Ployd 243. a. Coke l. 7. f. 28. If Title to present by Lapse be devolved to the Queen and the Patron presenteth a Clark who is admitted instituted and inducted and dieth the King hath lost his Title to present by Lapse for the King had but unam unicam presentationem hac vice which cannot be extended to the second avoidance and the statute de prerogativa regis quod nullum tempus occurrie regi is to be understood when the King hath a certain permanent interest and not when he hath an interest specially limited vide ibidem plura in Baskerviles case All which proceed from the Prerogative the Common Law giveth the Prince which is so large Nom. f. 85. Davis in his Preface as Sir Henry Finch saith that you shall find that to be Law almost in every case of the King that is Law in no case of the Subject And therefore Sir John Davis confidently averreth that the Common Law doth excell all other Lawes in upholding a free Monarchy which is the most excellent form of Government exalting the Prerogative Royall and being tender and watchfull to preserve it And yet maintaining all the ingenuous libertie of the Subject Davis ibidem But though the Common Law allow so many Prerogatives to the King yet shall he not hurt others by them As if a Bridge be repairable by the Subject and is in decay the pardon of the King shall not excuse him who ought to do it because others to wit the Subjects of the Realm have an interest in it So if one have Jewels in pawn for ten pounds and he that putteth them to pawn is attainted the King shall not have the Jewels unless he pay ten pounds for his Prerogative will not prejudice another Ployd f. 487. a. b. So the Earle of Kent had the return of certain Cattell in Replevin in 13 R. 2. and the Proprietor of the Cattell was attainted There it is holden that the Earle of Kent shall retaine the Cattell against the King untill he is satisfied for the thing and the Prerogative of the King will not discharge them of the return because the Prerogative will not give prejudice to another vide ibidem plura in Nichols case Rex est caput salus reipublicae a capite bona valetudo transit in omnes Coke l. 4. f. 124. b. The King is the head and safety of the Common-weale and as from the head health is conveyed to the body so from the King safety is conveyed to the Common-weale which is the body of the Kingdome for from him Justice is distilled to all by which all men are preserved in peace and safety as Ployd f. 242. b. All justice tranquility and repose is derived from him as the Fountain of it and therefore by Bracton he is called Author juris L. 3. c. 9. the Author of right by whom right is separated from injury equity from iniquity that all subject to him may live honestly that not one should hurt another and that to every one what is his be by a right contribution restored And by Homer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Gods Schollars and by a more divine Poet Gods themselves especially because they sit on Gods own Seat when they minister justice to the people Dixi quod dii estis and that the Rules of Justice be their principall Lesson Which like the Sun in the Firmament to which Justice is rightly resembled he is to communicate to all the Creatures of his Common-weale And as the King is the Sun and Fountain of Justice so are the Judges and Professors of the Law but Conduit Pipes to convey the streames of his Justice throughout all the Kingdome L. 4 Ep ad l. A. Chron. 19.6 7. Whereupon Sir Edward Coke hath this observation from the divine Text videte Judices Take heed you Judges what yee do for yee judge not for man but for the Lord who is with you in the Judgment wherefore let the fear of the Lord be upon you take heed and do it for there is no iniquity with the Lord our God nor respect of persons nor taking gifts And so saith he must every Judge be just without respect to give every man his own Protectio trahit subjectionem subjectio protectionem Coke l. 7. f. 5. Calv. case Protection draweth subjection and subjection protection Legiance is the mutuall Bond and Obligation between the King and his Subjects whereby Subjects are called his leige Subjects because they are bound to obey and serve him and he is called their leige Lord because he shall maintain and defend them And as there ought to be a mutuall connexion of dominion and fidelity between the Lord and Tenant ita quod quantum debet domino ex homagio tantum illi debet dominus ex dominio as Glanvil saith so that how much the Tenant oweth the Lord by homage and service so much doth the Lord owe the Tenant by his power and
within a Mannor time out of minde of man used was to grant parcell of the said Mannar in Fee-simple and never any grant was made to the heir of his body for life or for yeares and the Lord of the said Mannor did grant to one by copy for life the remainder over to another and the heires of his body and was adjudged that the grant and remainder over was good because the Lord having a custome and interest withal might grant a lesser estate for in this custome which enableth him to doe the greater enableth him to doe the lesse Coke com f. 52. b. for omne majus continet in se minns and regularly it is true that where a man doth that which he ought to doe and more there it is good for that which is warranted and void for the rest Coke com 258. a. As if a Letter of Attorney be made to I. S. to make livery of seisin in white acre and he maketh livery in white acre and black acre there he doth idem aliud and therefore it is good for white acre that is according to his authority and void for black acre which is aliud from his authority Perk. 38. But otherwise it had been if the Letter of Attorny were to make livery of one acre and he maketh livery of two acres there it is void for both because it is not named in certaine in the Feoffment of which acre livery shall be made according to 4. H. 7. And so regularly it is true that where a man doth the same thing he is authorized to doe alio modo in another manner then the authority doth warrant there it is void for the whole Davis in case of tenures f. 21. As if I command a man to make a Feoffment in my name according to a copy shewed in Latine and he maketh a Feoffment to the same effect in English it is without warrant because he doth not pursue the authority in the same Mannor 10. H. 7. 9. So a Letter of Attorney is made to deliver seisin after the death of I. S. and the Attorney maketh seisin during the life of I. S. all is void 40. Ass 38. Authorities by Deed are to be pursued strictly and precisely both for matter and manner Davis ibidem f. 17. The Plaintiff did make a charter of Feoffment to the tenant and a Letter of Attorny to deliver livery of seisin the Attorney delivereth seisin upon condition this livery is void for the authority is not pursued in the same manner 12. Ass 24. 26. So on the contrary if the Letter of Attorney had been to deliver seisin upon condition and the Attorney maketh livery without condition this is void Co. Just 258. 11. H. 4. 3. So where an authority is given to enfeoff and he levieth a fine 10. H 7. 15. It is void Omne mandatum est temporaneum Reg. I. C. all commands are temporary and are extinguished by death which is the difference that the Civilians put between an authority and a command and that the commande is determined by the death of him that commandeth but not the authority as by these verses is signified Praeceptum non pracipitat mors praecipientis Mandatum mandatore cadente cadit But some hold opinion that they both expire by the death of him that commandeth or giveth authority which Fulbech saith is more agreeable to our Law especially in matters of Bailship of which notwithstanding these diversities may be observed A man deviseth all his lands to his Sister except one Mannor which he appointeth to pay his debts and he made two Executors and dieth the one Executor dieth yet the other may sell the Mannor and pay his debts Dyer 371. But if a Letter of Attorney be made to deliver Livery of Seisin after the death of the Feoffor the Letter of Attorney is void Coke com f. 52. b. And if a Mayor and Comminalty maketh a Charter of Feoffment and a Letter of Attorney to deliver Seisin the Livery and Seisin is good after the death of the Mayor because the Corporation dieth not But if the Lessor by his Deed licence the Lessee for life or for years to alien and the Lessor dieth before the Lessee doth alien yet is death no countermand of the licence but that he may alien for this licence was executed on the part of the lessor as much as may be M. 3. Jac. c. 23. And so if the King doth licence to alien in Mortmain and dieth the Licence may be executed afterward Coke ibidem There is a diversity between authorities created by the party for private uses and an authority created by Law for execution of Iustice As for example if a man deviseth that his two Executors shall sell his land if one of them dyes the Survivor shal not sell it but if he had devised his lands to his Executors to be sold there the Survivor shall sell it coke com f. 181. b. And if a man make a Letter of Attorney to two to do any Act if one of them dye the Survivor shall not do it But if a Venire facias be made to foure Coroners to impanell and return a Iury and one of them dye yet the other shall execute and return the same vide ibidem plura And if there be two joynt Attorneys to return Livery for another and livery of Seisin is made to one of them in the name of both this is void unless the Warrant be joyntly and severally Coke com f. 49. l. vide ibidem plura Mandata licita strictam recipiunt interpretationem sed illicita latam extensam Bacon Max. 60. lawfull Commands receive a strict interpretation but unlawfull large and extensive In committing of lawfull authority to another a man may limit it as strictly as he pleaseth and if the party authorised do transgress his authority though it be in circumstance expressed it shall be in most cases void in the whole act as hath before been demonstrated and distinguished But when a man is the Author and advisor to another to commit any unlawfull act then he shall not excuse himself by circumstances pursued Therefore if I make a Letter of Attorney to I. S. to deliver Livery and Seisin in the capitall Messuage and he doth it in another place of the land or between the hours of two and three and he doth it after or before in these cases the act of the Attorney as to execute the estate is void Or if I express the Seisin to be delivered to I.D. and my Attorney deliver it to I.B. it is void but if my Attorney maketh it to his Attorney it shall be intended for it is a Livery to him in Law But on the other side if I command I. S. to rob I. D. on Shooters-hill and he doth it on Gads-hill or to rob him such a day and he doth it not himself but procureth another to do it or to kill by poyson and he doth it by violence in all these cases he
granteth a lease for life or yeares he hath the reversion in him which he may lawfully grant but the Law requireth in this case that he be not deceived in his estate and to grant the possession of the Land whereas he hath but a reversion and therefore when he granteth the Land notwithstanding that it be in lease for life or for yeares of Record or otherwise the grant is good When the words of a grant are not sufficient ex vi termini to passe the thing granted but the grant is utterly void there any non obstante cannot make the grant good vide ibidem plura Davis f. 75. In the case of Commendams By our Law what is wrong and malum insert and against the Law of God cannot be dispensed with and therefore 11 H. 7. 12. a. It is said that the King cannot dispense with any that doth nusance in the High-way and if he doth it that such a dispensation is void 8 H. 6. 19. The King cannot grant that if a man doth a trespasse to me that I shall not have an action against him or that a man shall be his own Judge and therefore it is often said in our Books that the prerogative of the King shall doe no wrong to the Subject 13 E. 3. 8 So though the King may dispense with a Statute which prohibiteth an indifferent thing to be done yet he cannot change the common Law by his Patent 37 H. 8. Patent 110. And as to the Pope it is often said in the Bishop of St. Davis case that the Bulls of the Pope cannot change the Lawes of England Notwithstanding the word non obstante was first invented and first used in the Court of Rome which as Sir John Davis observeth f. 69. b. was a mischeivous precedent to all the common Weales of Christendome for the temporall Princes perceiving that the Pope dispensed with his Canons in imitation of him have used their prerogative to dispense with their penall Lawes and Statutes and whereas before their Lawes were religiously observed as the Lawes of the Medes and Persians Davis f. 77. The Law which ordaineth that the first benefice shall be void by the acceptance of the second may be dispensed with and so is it of the Law that ordaineth that when a man is made a Bishop that his other Benefices shall be void as Thrining saith 11. H. 4. 213. b. For those Laws were made by Ecclesiasticall policy and therefore the same policy may dispense with those Laws permissio non est officium legis quia lex ad fert necessitatem Reg. I. C. permission is not the office of the Law for the Law bringeth necessity As by the Statute of W. 2. Lands were permitted to be entailed and usury also by many Statutes yet can they not properly be termed Lawes and Statutes Confessus in judicio pro judicato habetur quodam modo sua sententia damnatur Coke l. 11. f. 30. He who confesseth in the Court of Justice is holden adjudged and in a certaine manner is condemned by his own mouth or sentence And therefore the Attainder in confession is the strongest attainder may be for the vehement presumption it hath of truth for it should be absurd to say that he hath not done such a Felony since the party himselfe hath confessed it to the distruction of him and all his off-spring And the case of confession is a stronger case then guiltinesse by verdict for though he be found guilty by verdict yet may he be innocent and therefore at the common Law he may have his Clergy and make his purgation but if he had confessed the offence upon record he shall not have his Clergy at the common Law because he could not make his purgation when the Court findeth his confession on Record for in the intendement of the Law he cannot contrary his expresse and voluntary confession in Court vide ibidem plura In praesentia majoris cessat potentia minoris Manhood in Ployd f. 498. a. In the presence of the greater power the lesser power ceaseth All the Justices agreed that the Ordinary the Patron and King ought to agree in making an impropriation and the Ordinary is the principall aagent in it in that he hath the spirituall jurisdiction and the act of appropriation is a thing spirituall and what the Ordinary of the Diasis might doe that the Pope used to doe in the Realme as supreame Ordinary and was a long time suffered so to doe and did use to make appropriations without the Bishop which were taken to be good and the Bishop never contradicted but accepted them as good for in the power of the greater the power of the lesser ceaseth and in all Ecclesiasticall jurisdiction his authority was taken as absolute and did bind the Bishop as his inferior in all acts now such authority and jurisdiction as the Pope used within this Realme was acknowledged by the Parliament 25. H. 8 and other Statutes to be in the King and that he might lawfully doe all that the Pope was accustomed and used to doe within this Realme and from him it descended to his Son Edward who as superame Ordinary did make the appropriation of his own authority and jurisdiction without the Bishop and did put these words in his Charter authoritate nostra regia ecclesiastica qua fungimur vide ibidem plura Vectigal ab origine ipsa jus caesarum est patrimoniale lex imperatoria Custome from the beginning is the right and patrimony of Caesar and Emperors and are called vectigalia a mercibus evectis invectis from Merchandizes exported and imported for custom is a prerogative and benefit to which Kings and Princes are by the Law of Nations intitled And as the Law Nations were before Kings so Kings were made by the Lawes of Nations ex jure gentium originem suam traxerunt Baldus and as soone as they were made Kings presently the Law of Nations did annex the prerogative of custome to their severall Crownes so saith Baldus cum creatus fuerit Rex omnia regalia ei conceduntur competit omnibus regibus jus imponendi vectigalia when a King was created all royall incidents were granted to him and the right of imposing customes appertained to all Kings Wherein the rules of our Law as Davis observeth f. 12. are agreeable with those of the imperiall Law for we also say that custome is the ancient inheritance of the Crowne of England and that inheret sceptro and is as ancient as the Crowne it selfe and is due by common right and by prescription and not by the grant and benevolence of Merchants or by Act of Parliament Dier 165. b. And whereas by the imperiall Law Primaria vectigalium causa ac ratio fuit ut plana tutaque mercatori praetereunti itinera praestarentur Plin. l. 19. c. 4. The first cause and reason of customes was that plaine and safe voyages should be exhibited and assured to the Merchants and in our
another to save his life thrust him from it whereby he is drowned this is neither se defendendo nor by misadventure but is justifiable Bac. Max. f. 25. So if diverse Felons be in a Goale and the Goale by casualty is set on fire whereby the prisoners get forth this is no escape nor breach of prison 15. H. 7. 2. by Keble So if a man have right to Land and doth not make his claime for feare of force the Law alloweth him continuall claime which shall be as beneficiall to him as any entry 12. H. 4. 20. Lit. So where Baron and Feme commit a Felony the Feme can neither be principall nor accessary because the Law intendeth her to have no will in regard of the obedience and subjection shee oweth to her husband Stanf. 26 2. E. 3. 1â—0 Cor. Fitz. So one reason why Embassadors are used to be excused of practises against the State where they reside unlesse it be in point of conspiracy which is against the Law of Nations and Society is because it doth not appeare whether they have it in Mandatis and then they are excused by necessity of obedience Bacon Max f. 26. So if I be tenant for yeares of an house and it by the Act of God or a stranger be over-throwne by great tempest or by sudden floods or invasion of Enemies in all these cases I am excused in wast 42. E. 3. 6. 19. E. 3. by Fitz. wast Ployd f. 9. b. Any man in his defence or a Champion upon tryall may kill others and that is for the necessity of the salvation of his life in his defence and by the common Custome of the Realme the Hostelers shall be charged with the Goods of the Guests lossed and taken out of their houses yet if their houses be broken by the Kings enemies and the goods of the guests lessened or embezelled they shall not be charged with them because they could not resist them ibidem So for necessity the funerall expences shall be first paid by the Executors Broh executor 162. So a man may milk a Cow that he hath by return irrepleaible and that is for necessity Finch Nom. I. S. 35. Davis 122. 1. Nihil magis est justum quam quod necessarium est Nothing is more just then what is necessary So the King by his Prerogative for the necessary charges of the Crown may decree Imposts and Impositions payable upon Merchandizes contrary to the petition of right and property Though a man may not be punished for an act he doth by necessity of obedience yet if the act be unlawfull he is not the less to be blamed or if it be not necessitas culpabilis As those which releived Sir John Oldcastle with provision were not punished because they did it pro timore mortis for feare of death Steel in the C. of M. H. Coke com l. 5. f. 40. b. Necessitas saepenumero vincit communem legem Necessity for the most part overcommeth the common Law As if two Joynt-tenants be of land to them and the heires of one of them they shall not joyn in a Writ of Right But two Joynt tenants and the heires of one of them in a Writ of Advowson shall joyn in a Writ of right of Advowson And the reason of the diversity is because that in the first case they have severall means and remedies as it is agreed in 46 E. 3. 21. But in the other case if Tenant for life shall not joyn with him that hath the fee neither the one nor the other shall have any remedy and therfore in this case necessity overcometh the Law ibidem Coke l. 10 f. 61. a. Illud quod alias licitum non est necessitas facit licitum necessitas inducit privilegium quod jure privatur Bract. f. 247. that which is not otherwise lawfull necessity maketh lawfull and necessity introduceth a priviledge which is deprived by Law As if a Bishop granteth an Annuity-out of his Bishoprick that is restrained by the Statute of 1 Eliz because it is a diminution of its revenues and depauperation of its successors But if a Bishop grant an Office to one only that is not restrained by the statute of 1 Eliz. because such Grants are for necessity for if the Bishop should not have power to grant such Offices of service and necessity for the life of the Grantees no sufficient persous would serve them in such Offices or at the least would not discharge it with such alacrity if they had no estate for their lives but that their estates did depend upon uncertains as the death or translation of the Bishop Bacon Max. f 17. Privilegium non valet contra rempublicam The necessity of priviledge prevaileth not against the Common wealth for publick necessity is greater then private and therefore in all cases if the act be against the Common-wealth necessity excuseth it And accordingly the Law imposeth on every Subject that he prefer the urgent service of his Prince and Country before the safety of his life As in a tempest if those in a Ship throw over their Goods they are not answerable But if upon command they have Ordinance and amunition to releive any of the Kings Townes they cannot justifie the throwing of them over ibidem So in the case of Husband and Wife if they joyn in committing Treason the necessity of obedience doth not excuse the wife as in felony because it is against the Common-wealth 13 H 8.16 by Shelly So if a fire be taken in a street I may justifie the pulling down of the Wall or House of another mans to save the row from the spreading of the fire 12 H. 10 by Brook 22 Assise pl. 66 But if I be assailed in my House City or Town and distressed and to save my life set fire on my house which taketh hold upon other houses adjoyning I am subject to their action of the case because I cannot rescue my own life by any thing which is against the Common wealth but if it had been but a private trespass as the going over anothers ground or the breaking of his inclosure when I am pursued for the safety of my life it is justifiable 6 E. 4. 7. But necessitas culpabilis excuseth not as to kill one se defendendo is not matter of justification because quarrels are presumed not to grow without some wrong and the Law supposeth the party not to be without some malice and therefore it putteth him to sue out his pardon of course and punisheth him with the loss of his Goods Bacon Max. f 28. Compulsion also is a good excuse in our Law against the words of the Law And therefore whatsoever I do by duresse is not my act but may be avoided according to the rule Actus me invito factus non est meus actus An act done against my will is not my act as when I am compelled for fear of imprisonment to make a Bond or a Deed such a fear sufficeth to avoid
their Predecessors but excuse themselves and answer for their proper fact and demeanor for it is a common erudition that the Defendant in his answer and bar ought either to traverse or confess and avoid the Plaintiff vide ibidem plura Yet in Treasons and Felonies one shall be punished for anothers offence and by our Law and not without good reason the Sons of them which are disloyall Subjects and Traytors to their Prince are barred from the Inheritance of their Ancestors that their Fathers infamy may alwaies accompany them and that their life should be a punishment to them and their Fathers fault a continuall corasive and that is done because their Fathers Ulcers are feared in them and that being bred and brought up of naughty Parents they will be prone to do the like and this penalty is used in the nature of a medicine that by suffering shame he may be deterred from crime and therefore as Coke com 5. f. 391. l. by his attainder of Treason or Felony is the blood so stained and corrupted that his Children cannot be Heires to him nor to any other Ancestor And therefore where the Tenant is outlawed of Felony it is in the Lords election to have a Writ of Escheat supposing that his Tenant was outlawed of Felony or that he died without Heir for by the attainder the blood is corrupted 48 E. 3. 2. But it seemeth by Nichols case that the party attainted ought to be dead before the land can escheat for according to Dyer and Brian in the Kings case after the attainder and till Office be found the Fee-simple shall in facto be in the person of the attainted so long as he shall live for as he hath a capacity to take lands of a new purchase so he hath power to hold his ancient possessions and he shall be Tenant to a Praecipe and if he died before Office found and the land be held of the King the land shall go to the King in nature of a common Escheat Ployd 477. Nichols case but in case of Treason the King shall be presently after the attainder in actual possession without Office found by the Statute of 33 H. 8. c. 20. If the Father purchaseth land and his eldest Son is attainted of Felony and dieth the next in degree of descent and worthiness of blood unto the Son attainted shall not have the land but it shall escheat to the immediate Lord of whom the land is held for the blood is corrupted otherwise it had been if he had died in the life of the Father having no Issue Dyer 48. An account is brought against two the one entreth into an account and it is sound against him it shall bind both 44 E. 3. 18. One is imprisoned in the Marshalsey and a stranger breaketh the Prison and the prisoner escapeth the Marshall shall be charged for the whole debt If I have a way over the lands of twenty men and one of them stoppeth the way in his land I shall have an action against all those over whose lands the way was 33 H. 6. 26. by profit A rate is put upon a Town for the fees of a Knight of the Parliament The Beasts of him hath paid his part are taken for the residue he shall not have a Replevin but the beasts shall be sold to pay his duty 11 H. 4. 2. In quo quis delinquit in eo de jure est puniendus Co. com f. 233. b. In what one offendeth in the same by right he is to be punished As if any Keeper kill any Deer without warrant or fell or cut any Trees or under-woods and committeth them to his own use it is a forfeiture of his Office for the destruction of the Deer is by a mean the destruction of the Venison And so it is if he pull down the Lodge or any house within the Park for putting of Hay into for feeding of the Deer or such like it is a forfeiture and the reason why the Office shall in such and the like case be forfeited because in what one offendeth in that he shall be punished Dispensatio mali prohibeti est de jure Domino regi concessa propter impossibilitatem providendi de omnibus particularibus dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata Coke l. 11. 88. a. The dispensation of a prohibited evill is by right granted or allowed to the King because of an impossibility for providing for all particular things and a dispensation is a provident relaxation of an evill prohibited recompensed with profit and utility As where an Act of Parliament which generally prohibiteth a thing upon penalty which is popular or where it is onely given to the Queen may be inconvenient to divers particular persons in respect of the person place or time c. therfore in such causes the Law hath given power to the Queen to dispense with particular persons But when the wisdome of Parliament hath made an Act to restrain pro bono publico the Importation of any forrein Manufactures to the intent that the Subjects may apply themselves to the making of the said Manufactures c. and by it maintain themselves and families Now for private gaine to grant the importation of them to one or divers against the said Act is a Monopoly and against the Common Law and against the end and scope of the Act it self vide ibidem plura in the case of Monopolies Coke l. 5. f. 28. Cawdrys case By the Ecclesiasticall Lawes of this Realm a Priest cannot have two Benefices nor a Bastard be a Priest but the King by his Ecclesiasticall power and jurisdiction may dispense with both these because they are mala prohibita and not mala in se The King by a clause of non obstante may dispense with the Statute-law and that if the Statute saith that dispensation shall be meerly void 2 H. 7. Grants 73. Finch f. 82. Coke comm f. 120. a. A party or Minister disabled by reason of any corrupt Contract c. by the Act of 13 Eliz. which is an absolute and direct Law cannot be dispensed withall by any Grant c. with a non obstante as it may be when any thing is prohibited sub modoâ— as upon a penalty given to the King Coke l. 4. f. 35. b. in Bozums case when the King by the common Law cannot in any manner make a grant there a non obstante of the common Law will not make the grant good against the reason of the common Law as if the King granteth a protection in an assize or Quod impedit with a non obstante of any Law to the contrary that grant is void for by the common Law a protection doth not lye in any of these cases 39. H. 39. But when the King may lawfully make a grant but the common Law requireth that he may be so instructed that he be not deceived there a non obstante may supply it as when the King