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
remainder is appointed in fee to the right heires of I. S. who dieth having a daughter which entreth after the death of tenant for life there the son after borne shall not recover the lands before vested in the daughter as purchased for thereit is a fee simple to which the son after born hath no right for the lands were in none of his Ancestors before But where the estate is an estate taile the son ought to have it per formam doni As if a feme which suffereth a recovery by covin contrary to the Statute of 11. H. 7. is defeated by entry of the daughter tenant in taile the son borne may enter and oust the daughter for that the title in taile is in him because the statute saith he shall enjoy it according to the title which is in taile and therein the common proverb is verified One shall beat the bush and the other have the bird As if a man hath land by descent of the part of the mother and maketh a feoffment on condition and dieth without issue and the heire of the part of the father entreth the heire of the part of the mother may oust him Ployd 56. b. and 57. a. In Wimbish case quod vide Infinitum injure reprebatur Coke l. 6. f. 45. What is infinite is reproved and rejected in law As if a man have a debt by simple contract and taketh an obligation for the same debt or any part of it the contract is determined 3. H. 4. 17. 11. H. 4. 9. and 9. E. 4. 50. 51. So if a man have a debt upon an obligation and by course of law hath a judgement upon it the contract by specialty is changed into a thing of record for if he that recovereth should have a new Action or a new judgement he may have infinite Actions and infinite judgements to the perpetuall charge and vexation of the defendant and he shall not have a new Action or a new judgement for what is infinite is rejected in law So upon every judgement the defendant shall be amerced and if he bee a Duke Marquess Earle Viscount or Baron he shall be amerced 100 l. and so the defendant should be infinitely amerced upon an obligation which shall be mischievous Ibid. And lib. 7. f. 45. b. It was resolved in the Court of Wards by the greater part that a Bill of reviver upon a bill of reviver shall not be admitted by reason of the infiniteness which is rejected in law And lib. 8. f. 16. b. When the first office is found against the King and the melius inquirendum also the King is bound nor to have any melius inquirendum for the same matter because there should be no end of it and that such writs might issue infinitely and infinity is condemned in law Nihil tam conveniens naturali aequitati quam voluntatem domini volentis suam rem in aliam transferre ratam haberi Bracton f. 18. God hath given to man all the land terram dedit filiis bominum So men by Gods endowment are made Lords of the land and what property a man hath in lands by law by the law of God also he hath dominion of it and therefore every man who is the lawfull owner of land may grant to what person in what manner and for what time it pleaseth him for if the land be subject to man then is it subject to his will for the will cometh from the mind which is the principall part of man because it directeth the body and all things he hath and if his land be subject to his will this his will is a sufficient consideration by which his land may pass as his will is and there is no greater consideration then the will Ployd f. 308. b. And nothing is more agreeable to naturall equity then to ratify the will of the Lord willing to transferr his substance and estate over to another And therefore at the common law the intention and will of the parties was the direction of uses for they were onely determinable and to be adjudged by the Chancellor which is the Court of conscience and equity and there is nothing more agreeable to equity then that the will of the Lord or owner and the meaning of the parties should direct the uses 31. H. 16. Tit. subpaena Fitz. 23. A man being ceste que use and having one sole daughter declared his intent and meaning to the Feoffees that after his decease his daughter should have his land and for it question was made in the Chancery whether the limitation of that use made to the daughter might be revoked and in reasoning of that case Fortescue held opinion that if ceste que use had issue a daughter and being sick declared his intention to his feoffee that his daughter shall have his land after his decease and after hee recovered his health he had issue a sonne now saith hee it is good conscience the sonne should have the Subpaena because hee is heire for conscientia dicitur a conset scio quasi simul scire cum Deo that is to know the will of God so neere as reason will and the intention of the parties is to direct the uses according to a conscionable and benigne construction Coke l. 1. f. 100. a. b. vide ibidem plura As a gift in taile may bee made upon condition that tenant in taile may alien for the profits of his issue and good and hee may alien notwithstanding the Statute of W. 2. because in that case voluntas donatoris observatur The will of the Donor is observed Coke com 224. b. If Lands be given to B. and his heires Habendum to him and the heires of his body or if given to him and the heires of his body Habendum to him and his heires he hath estate taile and a fee expectant but if Lands bee given to B. and his heires if B. have heires of his body and if he die without heires of his body that it shall revert to the Donor it is an estate taile and the reversion in the Donor for voluntas donatoris in charta doni sui manifeste expressa est observanda The will of the Donor manifestly expressed in the Charter of the gift is to be observed Coke com f. 21. a. If a common person doth without consideration give to I. S. his goods indefinitely all his goods doe pass 21. E. 4. 25. Alba of Waltams case by Brown and Genny If the King doe grant to one lands ex mero motu and though his Highnesse doth rehearse some consideration in the patent of his grant which is not true as if the consideration bee that whereas the Grantee hath done his Majesty good service on the Sea or beyond the Sea or in his Wars though the consideration bee meerely supposed and therefore no good consideration in Law yet the words ex mero motu doe make the Grant good 26 H. 8. 1. by Fitz. And if a common person doe by deed
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
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
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
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
first because he requested it which implyeth an assent secondly because he accepted it which also implyeth an assent for it mattereth nor whether one giveth his assent by words or by things themselves and deeds vide ibidem in Lampeis case As if the Baron accept the Grant of a reversion that amounteth to an Attornement 44. E. 3. Fines 37. Littleton so 37. H. 6. 17. he which hath interesse termini to wit a future interest cannot by expresse words surrender it but the acceptance of a new Lease shall drowne it and in 7. E. 3. 50. The Lord demanded an heriot and the heire delivereth a Beast in which himselfe hath property in his own right to the Lord that amounteth to a guift Ibidem N.S. seised of Mannors for the preferment of Winifâ—id his wife and Anne his Daughter covenanteth to stand seised to the use of himselfe c. for life the remainder in taile to A. his Daughter with a proviso that if he shall be disposed to determine c. the said uses it shall be lawfull for him so to doe by writing indented under his hand and seale subscribed by three witnesses and to limit the said uses to any other and N. S. after by indenture subscribed by three witnesses in consideration of a joynture to his second wife covenanted to stand seised to the use of himself his second wife and it was resolved though there was no expresse signification of his purpose to determine c. the former uses yet his last Indenture to stand seised to himself and his second wife should enure to the determination of the former uses c. and that by it ipso facto the former uses did cease and also inure to the raising of other uses c. quia non refert an quis intentionem suam declaret verbis an rebus ipsis vel factis because it is no matterwhether one declareth his intention in words or in the things themselves or deeds for by the limiting of other uses he did declare his intention and purpose to determine and alter the uses before Coke l. 10. f. 144. a Scroops case Conditio beneficialis quae statum construit benigne secundum verborum intentionem est interpretanda odiosa tamen quae statum destruit stricte secundum verborum proprietatem est accipienda Coke l. 8. f. 90. b. Provisoes and conditions which goe in destruction and defeasances of estates are odious in Law and are to be taken strictly and shall not be construed to make void any other use or state which is not within the words of the proviso but beneficiall conditions which make an estate are favorably to be taken according to the intention of the words As if a Feoffment be made upon such condition that the Feoffee shall give the Land to the Feoffor and the wife of the Feoffor and to the heires of their two bodies engendred the Remainder to the right heires of the Feoffor if the Baron dye living the Feme the Feoffee by the Law must make the estate to the Feme so neer the condition that he can make it as Littleton saith to wit to lease it to the Feme for terme of her life without impeachment of wast and after her decease to the right heirs of the Baron and of her ingendred the remainder to to the right heirs of the Baron and so if the Baron Feme dye before the deed made And with it accordeth the 2. H. 4. 5. But when conditions enure to the destruction of estates then they shal be taken strictly as if a man make a Feoffment in fee of certaine Lands upon condition that the Feoffee shall not give the Land to Baron and Feme and to the heires of their bodies engendred if the Baron dyeth without issue and the Feoffee maketh a lease for the life of the Feme without impeachment of waste that is no breach of the condition for it is taken strictly because it runneth to the destruction of the Feoffment vide ibidem plura in Frances case A lease made to one upon condition that the Lessee shall not alien to A. B. and he alieneth to R. B. and it seemed that the Condition was not broken for every Condition must be taken strictly for if a man maketh a Feoffment on condition that he shall not enfeoff I. S. and dieth and his Heire enfeoffeth I. S. that is no breach of the Condition Dyer f. 45. Pl. 1. A man is bound to another in an hundred pounds that he shall discharge the Obligee and â—ave him harmlesse of all Suits and Incumbrances against I.S. and after the said I. S. sued the Obligee and proceeded unto Judgment and the Defendant pleaded non damnificatus and Beaumon Serjeant sayd That in the eye of the Law untill his Goods or Lands were actually charged he was not damnified But Walmesley Justice held that there were two sorts of damages executory and executed executory which a man may in future time sustain executed as if the Land or the person should be in present execution As if the Disseisee maketh a release to the Disseisor and a stranger cancelleth the the Deed of the Release the Disseisor may have an action of trespasse against him and yet the Disseisor doth continue in possession and is not actually damnified And the Justices said the Land in some sort was actually charged for who would buy the Land of the party but only under value because of the Judgment executory 33 Eliz. Ridgleys case If a man be bound to make a sufficient estate in Land to one according to the advice of I. S. if he make an estate according to his advice whether it be sufficient or no he is excused 7 E. 4.13 A TABLE of the grounds and RULES contained in this Treatise A. ABundans cautela non nocet An abundance of circumspection doth not hurt fol. 323 Actus Dei nemini facit injuriam The act of God doth injury to no man 6 Actio personalis moritur cum persona A personall action dieth with the person 48 Actori incumbit onus probandi stabilitur praesumptio donec probetur in contrarium The burthen of proving lyeth on the Plaintiff and the presumption is confirmed untill it be proved to the contrary 46 Accessorium sequitur suum principale An accessory followeth the principall 56 Accusare nemo se debet nisi coram Deo No man ought to accuse himself unlesse it be before God 222 Actus non facit reum nisi mens fit rea The act maketh not a man guilty unlesse the mind is guilty 231 Actus repugnans non potest in esse produci A repugnant act cannot be brought into being 124 Actus me invito factus non est meus actus An act done against my will is not my act 434 Actus legis nemini facit injuriam The act of Law doth no man injury 463. 317 Ad libitum Regis sonuit sententia legis The sentence of the Law soundeth according to the Kings
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
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
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
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
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
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
of a Grant be good in parcels and for parcels not that which is for the advantage of the Grantee shall be taken to be good As if a man granteth unto me an annuity provided that it shall not charge his person the Proviso is void and the Grant good 20 E. 4 8. by Townsend 14 H. 4. 30. by Hank And if an annuity be granted pro consilio impendendo though the Grantee be well skilled in divers professions of art yet counsell shall be given in that faculty onely which was intended at the time of the Grant 4. 1. E. 3. 6. If the King grant to a man that he and his Heirs shall be quit of Tax for the lands which they have this is a good Grant though there be no Tax at the time of the Grant 38 H. 6. 10. And so is the Law of Tenths and fifteens ibidem Ployd f. 29. a. If a man maketh a Lease for life and after the decease of Tenant for life that the lands redibus to A. B. in fee it is held a good remainder because it is held for a principle that the Livery of every one shall be taken more strong against him 18 E. 3. f. 28. If a man give land to one haeredibus it shall be a Fee-simple without the word suis and though he doth not give him a Fee-simple expresly yet every mans livery shal be taken strongest against him Ployd f. 18 b.a. If I make a lease for years upon condition that one moneth after he shall have fee he shall have it after the moneth accordingly for the thing shall pass according to the convention more strong against the Donor Ployd ibidem So if I make a lease to two upon condition that if one doth dye within seven years that then after the death of the other it shall remain to a stranger in fee that remainder is good for the reason of the condition to give the estate to privies or strangers is all one in regard that he had first given an estate to which the condition may be annexed for the livery and limitation shall be taken strongest against him that made it ibidem If I give land to one filio suo primogenito and he hath no Son at the time of the gift and after he hath a Son that son shall have the land by way of remainder and yet the remainder was not out of the Lessor neither did it vest at the time of livery but the Law construeth the livery and limitation more strong against the Lessor P. 17 E. 3. f. 29. Ployd vide ibidem plura If two Tenants in Common grant a rent of ten shillings this is severall and the Grantees shall have twenty shillings But if they make a Lease and reserve ten shillings they shall have onely ten shillings between them So an Obligation to pay ten shillings at the feast of our Lord God it is no plea to say that he did pay it but he must shew at what time or else it will be taken that he paid it after the feast for every act shall be taken more strictly against him that made it Noy Max. f. 15. 2 E. 3. p. M f. 140 b. 161. b. A generall pardon ought to be taken more beneficially for the Subject against the King 37 H. 8. f. 21. Coke l. 4. Vaughans case If I. S. submit himselfe to arbitrement of all Actions and Suites between him and I D. and I. N. it shall be intended collective of joynt Actions and distributive of severall Actions also because the words shall be taken stronger against him that speaketh 2. R. 3. 18. 21. H. 7. 29. If I grant 10 l. rent to Baron and Feme and if the Baron dye the Feme shall have three pound rent it shall be strongest taken against me the grantor for three pounds addition to the ten 8. Ass Pl. 10. So if I sow all my Land with Corne and let it for yeares the Corne passeth to the Lessee if I except it not So if I have a free Warren in my owne Land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren discharged and extracted during the Lease 8. A. 7 32. H. 6. If I. give Lands to I. S. and his heires males this is a good Fee-simple and the words males is void Bac. Max. f. 12. vide ibidem plura Yet this rule also faileth when another which the Law holdeth worthier cometh in place and which is of more equity and humanity It is a rule in the Civill Law valeant eo modo quo valere possunt and at the Common Law Benignae faciendae sunt interpretationes chartarum propter simplicitatem laicorum ut res magis valeat quam pereat Coke com f. 30 b. The interpretations of Deeds and charters because of the simplicity of the people are favorably to be made that the thing may rather stand and subsist then fall and perish and let all things stand by the same meanes they may stand And therefore if I give Lands to I. S. and his heires rendring five pounds yearly to I. D. and his heires this implyeth a condition to me that am the grantor Littleton yet were it a stronger exposition against me to say that the limitation shall be void and the Feoffment absolute So if a man make a lease to A. for yeares and after by his Deed the Lessor voluit quod haberet teneret terram pro termino vitae willeth that he should have and hold the Land for terme of his life this is adjudged by the word volo to be a good confirmation for life Coke com f. 301. b. Though it were stronger to say those words are void because they are not proper words of confirmation So if the Disseisor granteth a rent to the Disseisee and he by his Deed granteth it over and after doth re-enter in this case one and the same words doe amount to a grant and a confirmation So if the Disseisor maketh a Lease for life or in taile the remainder to the Disseisse in fee and the Disseissor by his Deed granteth over the remainder and the particular tenant atturneth the Disseissee shall not enter upon the tenant for life or in taile for then he should avoid his own grant which amounteth to a grant of the estates and a confirmation also ne pereat Coke ibidem 302. So if A enfeoffeth another upon condition that he and his heires shall render to a stranger and his heires a yearely rent of twenty shillings although this reservation be meerly void for that no estate moveth from the stranger and that he is not party to the Deed and therefore can be no rent yet shall it be taken for a penalty or for an annuall summ in grosse so as if they will not pay it according to the forme of the Indenture they shall loose the Land by the entry of the Feoffor and his heires which is to be observed that
the 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
Execution by Elegit or Fieri facias because the death of the Defendant is the Act of God which prejudiceth no man Nunquam prospere succedunt res humaâ—ae ubi negliguntur res divinae Cok. Com. fo 54 b. humane affaires never succeed well where divine rites are neglected And therefore doth that great Legist prescribe these Rules to the Students of the Law for their dayly practice Sex horas somno totidem des legibus aequis Quatuor orabis des epulisque â—uas Quod super est ultra sacris largire Camaenis To sleep six hours allot to the Laws twice three Four to your prayers two to your Feasts may be And what remains give to the Muse Divine Sect. 2. IN the next place the art of Grammer is to be ranked which amongst the Liberall Siences hath the Precedency for it is Janua omnium artium the portall by which we enter into the knowledge of all Arts and by which we communicate our selves and studies to others hence proceede these rules and maximes Ignoratis terminis ignoratur ars Cok. Com. 177. a. As in Schoole Divinity Civill Law Logick and other Arts there are words of Art which are more significant then Grammaticall so are there in our Law termes drawn from the Legall French which are more apt and significant to expresse the sense of our Lawes then any other Which words of Art being not conceived that Art cannot be comprehended Whence he inferreth that the significations of words in all Arts and Sciences are necessary which Mr. Littleton in his Tenures ordinarily observeth for certainly names which are instituted and imposed according to the rationall Analogy with things by wise understanding men are as Plato calleth them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 instructive instruments by which we are guided and directed to the knowledg of the thing And therefore in our discourse and disputation this ever is to be observed principium in omni re disputatione est nomen the words are first to be considered Cok. Com. 68. a. 2. Loquendum ut vulgus Coke l. 4. fo 46. a. words shall be taken according to their vulgar and ordinary construction as though a person attainted be a person convict and more Yet in the Statute of 25 E. 3. c. 2. It is said that an attaint by virdict is taken as convict by virdict so also it is taken 3. H. 7. c. 1. and oftentimes in common speech the person convict is termed Attaint for we are to speak as the people use to speak a grant of one hundred Acres of Land in such a Feild and sixty in such a Feild and twenty Acres of meadow in such a Meadow the Acres shall be taken as they are known by estimation But if I have a Close by estimation twenty Acres and by the Statute eighteene if I grant ten of these Acres he shall have them according to the measure of the Statute Popham fol. 191. And therefore saith Ployd fo 169. It is the part of Judges to know the common Language of the people and to adjudge of those onely according to the common course For he that taketh a Lease for Lands in the North Country called a tack and in Lancashire it is called a firme-holte and in Essex a Week and if he have taken it by these words used in that Country there is no reason that he should loose his Farme because he hath used no other Language then is used in his own Country But the Judge ought to search and know the sense of these words and shall judge them according to the common usage otherwise he shall make great disturbance and confusion in the Common Wealth ib. for verba valent usu sicut nummi and Cok. l. 6. fol. 64. b. concludeth that it is well said in Hills and Granges Case 170. It is the office of Judges to take and expound the words which the common people use to express their intent according to their intent and not according to the true definition vide ibidem plura Sr. Moyle Finches Case and so Coke lib. 7. fol. 11. b. Calvins Case whereas diverse books and acts speake of the Leagiance of England all these and others speaking breefly in a vulgar manner and not pleading are to be understood of the Legiance due from the people of England to the King and therefore loquendum ut vulgus sed sentiendum ut docti for no man will affirme that England it selfe taking it for the continent thereof doth owe any legiance and faith or that any allegiance or faith should be due to that But it manifestly appeareth that the Legiance and faith of the Subject is proprium quarto modo to the King ibidem 3. Ad proximum antecedens fiat relatio Dyer fo 14. b. It is a rule in the Grammar that when a thing is dubious and may be referred to a double intent let the relation be to the next Antecedent As the Condition of the Obligation for marriage money was That if the wife dye before Michaelmas without Issue dyed adjudged the Obligation was void for then living relates to the first Antecedent that is Michaelmas and not to the death of the woman ibidem Dyer fo 46 b. A man was endicted of Felony per nomâ—n I. S. de in C m. pre serviens W. B. in eodem Com. Yeoman and for defect of a sufficient addition to I.S. he was discharged upon the Enditement for Yeoman ought to be referred to the master as the next Antecedent and not to I.S. and servant is not a sufficient addition 9. E. 4. So one Sibylla Batersby nuper de T. in Comitatu Ebor. uxor Johanis Batersby nuper Spinster was endited of Felony and murther and for defect of the addition she was discharged for Spinster being an indifferent addition for man or woman for in Norfolke there are diverse men which are worsted spinsters must be referred to Johanis Batersby the next Antecedent Tenant for life the Remaindâ—r to B. in Tayle the Remainder to C. in eadem forma this is a good estate Tayle for idem refertur proximo antecedenti Cok. Com. fo 20. b. Ad proximum antecedens fiat relatio nisi impediatur sententia Cok. l. 2. fol. 71 a. Sr. Cromwells Case and Dyer fo 13 b. although the rule be true that the relation for the most part ought to be ad proximum antecedens yet many times if it be hindred by the sense and meaning it is otherwise for sensus est anima legis Cok l. 5. f 2 sense is the soul of the Law and hath a speciall sway and rule in all Cases so a man is bound to abide the award of I. S. and he awards that the one party shall pay before such a feast ten pound to another and that then he shall make him a release Tunc shall not be referred to the Feast but to the time of the payments cleerly So I.S. bargaineth and selleth his Land to I N. for ten pound predictus Johanes Covenanteth
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
proferentem accipienda sunt Bacon Eliz. f. 11. As if I demise omnes boscos meos in villa de Dale for years this passeth the soile 14. H. 8.28 H. 8. Dyer 17. And if I sowe my Land with Corne and let it for for yeares the Corne passeth to my Lessee And if I grant ten pounds rent to Baron and Feme and if the Baron dye the Feme shall have three pounds rent because these words rest ambiguous whether I intend three pounds by way of addition or three pounds by way of deduction out of the rent of ten pounds it shall be taken strongest against me that it is three pounds addition to the ten pound of which more hereafter So Coke fol. 303. b. Ambiguum placitum interpretari debet contra proferentem An ambiguous Plea shall be taken strongest against the pleader for every one is presumed to make the best of his own Case and Coke l. 10. f. 50. Ambigua responfio contra proferentem est accipienda the Bishop of Sarums Case vide ibidem In obscuris secundum magis similius est judicandum vel quod plerumque inspici solet Regula I. C. and Coke l. 4.13 14. Sensus verborum ex causa dicendi accipiendus est sermones semper accipiendi secundum subjectam materiam In obscure and dark sayings we are to judge according to that which is most likely and which is wont to be and the sense of the words is to be collected from the cause of the speech and to be taken according to the subject of the matter which rule seemeth to qualify and moderate the other two vide ibidem S. Cromwells Case as first in words the Plaintiff bringeth an action upon the case for calling of him Murderer to which the Defendant said that as he was speaking with the Plaintiff concerning unlawfull hunting the Plaintiff confessed that he had killed diverse Hares with Engins to which the Defendant answered that he was a murtherer innuendo a murtherer of Hares and it was resolved that the justification was good for upon an action of slander the likeliest sense of words is to be taken and collected out of the occasion of the speech Coke ibidem And so in Deeds as if I have a free Warren in my land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren 32. H. 6. which is the more likely meaning for otherwise the Lessor would have excepted the Warren Vnivocum denoteth words of a certaine and distinct signification and expresseth the thing cleerly without any obscurity or Ambiguity of which the Law taketh especiall notice for that certainty in all contracts and conveyances is the cause of quiet and setlement of estates but incertainty is the author of variance and dissention from whence we have these notable grounds and maximes Misera est servitus ubi jus est vagum Coke l. 5. f. 42. a. God forbid that the inheritances of men should depend upon incertaines and it is a miserable servitude where the Law is wavering and therefore Ployd f. 28. a. In every Common-wealth it is necessary and requisite that things should bee certainely conveyed for certainty engendreth repose and incertainty contention The occasions of which contention our Law foreseeing hath prevented and therefore ordained that certaine ceremonies should be used in the transmutation of things from one man to another and namely of Frank-tenements which are of greatest estimation in our lawes to know the certaine times when things do passe and therefore in every Feoffment the Law ordeineth that livery and seisin shall bee made and in every grant of a reversion or rents that attornement should be made which are points certaine containing time wherefore it is well observed by Sir Edward Coke in his Preface to the second part of his Reports that in all his time there have not beene moved in the Courts of Justice of England two questions touching the rights of descent escheats or the like fundamentall points of the common-Law so certaine sure and without question are the principles and grounds thereof That as Sir John Davis in his preface there is no art nor science which standeth upon discourse and reason which hath her Rules and Maxims so certaine and infallible and so little subject to diverse interpretations as the common Law of England Whence Sir Edw. Coke is bold to pronounce that the Common Law of England is not incertaine in the abstract but in the concrete and that the incertainty thereof is hominis vitium non professionis the imperfection of man and not of the profession and lib. 6. f. 43. a. in particular blameth hee the subtile inventions imaginations of men in the practise of uses which have introduced many mischiefs inconveniences contrary to the ancient common law which hath certain rules to direct the estates and inheritances of men and therefore is it without comparison better to have Estates and Inheritances directed by the certaine rule of the common Law which harh beene the ancient true and faithfull servant to this Common-wealth then by incertaine imaginations and conjectures of any of those new inventors of uses without any approved ground of law or reason Coke l. 6. f. 43. a. And therefore in all cases law and equity will that incertainty bee avoided as the author of contention and that there bee an end of all controversies according to equity and right which is the finall intention of all Lawes Coke l. 8. 53. And Coke l. 1. f. 85. a. The Judges ought to know the intention of the parties by certaine and sensible words which are agreeable and consonant to the rules of Law as if Land bee given by deed to two to have and to hold to them and haeredibus it is void for the insensibility and incertainty and though it hath a clause of warranty to them and their heires that shall not make the first wordes which are incertaine and insensible to bee of force and effect in Law although his intent appeareth but his intent ought to bee declared by words certain and consonant to Law So Coke comment f. 20. b. If a man letteth Lands to A. for life the remainder to B. in taile the remainder to C. in forma praedicta the remainder is void for the incertainty And therefore Ployd f. 272. a. giveth this ground that every contract sufficient to make a Lease for yeares ought to have certainty in three limitations in the beginning of the terme in the continuance and in the end of the same all which ought to be known at the beginning of the Lease and the Lease that wanteth them Mr. Brown said is but bibble babble vide ibidem Fullers case and Coke l. 6. f. 35. the Bishop of Bathes case Ployd f. 14. a. If I give all my mony in my purse to I. S. hee cannot have an action for it unlesse hee alledge the certainty of it so as without certainety the action is not maintainable according to
the rule given by Bracton incertae rei nulla est donatio l. 5. c. 4. Ployd f. 273. b. If a Lease bee made untill I. S. who hath execution of a Statute Marchant is satisfied of the duty for which hee hath sued execution this is not a good Lease and shall not bee called a terme for yeares for it is not certaine how long the Lease shall endure either for six years or for twelve yeares so there is an incertainty of time at the end of the Lease for a terme containeth certainty So if a Lease bee made from three yeares to three yeares and so from three yeares to three yeares duering the life of I. S. it shall bee but a Lease for six yeares for for six yeares there is certainty and when he saith and so from three yeares to three yeares it is all one as if hee had said the first three yeares during the other three yeares which containeth certainty but when hee goeth further and saith and so from three yeares to three yeares for the life of I. S. that containeth no certainty in it for it is incertaine how many three yeares I. S. shall live so that in the beginning the end is not knowne of the number of yeares intended which is contrary to the nature of a Lease for yeares Coke comm f. 45. b. and Browne and Dier said it had beene so adjudged vid. ibid. Ployd saies and Fullers case So if a parson maketh a lease of his glebe for so many yeares as he shall be parson there this cannot be made certaine by any meanes for nothing is more uncertain then the time of his death terminus vitae incertus est quanquam nihil est certius ipsa morte nihil tamen incertius est hora mortis Coke com 45. b. A grant to I. S or I. N is void for the incertainty and if it bee delivered to I. S. the delivery of the deed will not make a voide grant good 11. H. 7. 13. Noy Max. f. 67. Coke com f. 310. b. If a reversion be granted for life and after it is granted to the same grantee for yeares aâ—â—â—he Lessee attorne to both grants they are void for the incertainty So if the Lord by Deed granteth his signiory to I. Bishop of London and his heires and by another Deed to I. Bishop of London and his Successors and the Tenant attorneth to both grants the attornment is void for both grants for albeit the grant bee but to one yet hee hath severall capatities and the grants are severall and the attornment is not according to either of the grants ibidem A gift made to one of the Infants of I. S. is void for the incertainty 11. E. 41. and Dier f. 91. A grant is made for so many trees as may bee reasonably spared it is void for the incertainty for who shall bee judge of the sparing the Vendor or the Vendee and it seemeth that neither of them yet by common intendment the Vendor hath most knowledge which may bee spared So if I bargaine with you that I give you for your Land so much as it is reasonably worth it is voide for default of certainty So a grant seniori dignissimo filio is void for the incertainty for some will say that he who is most learned and knowing is the most worthy man and some will say the most valiant man and some the most liberall man and so the multitude can never agree Scinditur incertum studia â—â—ontraria vulgus And by that the most potent man was alwaies preferred which is contrary to all Lawes inde datae leges ne fortior omnia possit Dav. l. 33.36 case of Tanistry vide Coke com So a release doth not discharge Bayle before judgement because it is contingent and incertaine Coke l. 5. Samons case B. in consideration of six l. assumes to pay twenty pound to A. If hee doe not performe the award of I. S. which was that hee should enter in obligation to A. that A. and his wife should enjoy the Lands were in controversie between them B. would not enter into obligation and it was adjudged the award was voide for the incertainty because it doth not appeare of what summe the obligation should be for the Arbitrators are Judges and their award must be certaine to decide the controversie Certum est quod certum reddi potest Coke com f. 43. b. Though it be Bractons rule Terminus annorum debet esse certus determinatus as in every lease for years the terme must have a certaine beginning and a certaine ending yet allbeit there appeare no certainty of yeares in the Lease if by reference to a certainty it may be made certaine it sufficeth for that is certaine which may be made certaine As if A. leaseth his Lands to B. for so many yeares as B. hath in the Mannor of Dale and B. hath then in the said Mannor a terme for ten yeares this is a good Lease to B. for ten yeares If a man make a Lease to I. N. for so many yeares as I. N. shall name this at the beginning is incertaine but when I. N. hath named yeares then is it a good Lease for so many yeares Ployd f. 273. b. For it is my demise and my contentment that hee name the yeares which by my reference to his nomination is as much as if I my selfe had named But if a Lease bee made for so many yeares as my Executors shall name and then I die and my Exâ—â—â—â—s name the yeares the Lease shall not bee good because they neither did nor could name the yeares during my life ibidem So if I make a Lease untill I. S. who is in Prison for hunting shall be in Prison for it by order of Law that is all one as if hee had made the Lease for two yeares for by the statute of W. 1. c. 10. hee shall bee imprisoned so long so if I make a Lease for yeares rendring five pound rent by the yeare and then I grant the rent and reversion to another untill hee hath received of the rent twenty pound that is all one as if I had granted the reversion for four yeares and therefore the Lease containeth such certainty of time by the reference So if a Lease bee made during the nonage of I. S. who is of the age of fifteen yeares it is a Lease for six yeares if I. S. live so long for the reference to the time certaine is as much as if hee had expressed the nomination of the time contained in the reference So if I make a Lease for ten yeares and so from ten yeares to ten yeares during a 100. yeares it is a good Lease Ployd ib. E. Coke l. 6. f. 20. The Bishop of Bathes case So a Lease for years after the Lessee shall make such an act is good so a Lease for twenty yeares if the coverture betweene I. S. and his wife continue so long although in one case it
renunciaverit amplius repetere non potest n. f. 139. a. As a Retraxit is a bar of all other actions of the like or inferior nature for he which once renounceth his action can no more renew it It is a generall rule that non-suite before appearance is not peremptory in any case for that a stranger may purchase a writ in the name of him who hath cause of action and regularly a non suit after appearance is not peremptory but that he may commence an action of like nature againe for it may be he hath mistaken something in that action or was not provided of his proofes or mistaken the day or the like But yet for some speciall reasons non-suit in some actions is peremptory as in a quare impedit if the Plaintiff bee non-suit after apparance the Defendant shall make a title and have a Writ to the Bishop and this is peremptory to the Plaintiff and is a good bar in another quare impedit and the reason is because the Defendant had by the judgement of the Court a writ to the Bishop and the incumbent which commeth in by that writ shall never be removed which is a flat barre as to that presentation and for the same law and upon the same reason so it is in the case upon a discontinuance Coke com f. 139. a. vide ibidem plura Actio personalis moritur cum persona a personall action dieth with the person Went. off of executors f. 1. 97. As if a keeper of a Prison suffereth one in execution to escape and dieth no action lyeth against his Executors If Lessee for yeares doth wast and dieth an Action of wast lyeth not against his Executor or Administrator for wast done before that time Coke com f. 53. b. so if the tenant doth wast and he in the reversion dieth the heire shall not have an Action of wast for the wast done in the life of his Ancestor nor the master of an Hospitall or a parson for wâ—st done in the life of the predecessor ibidem The Lessor covenants to pay quit rent during the terme and dieth his Executors shall not pay it because it is a personall covenant in the Lessor onely Dier 114. Yet if there be three copartners and they Lease the land and one of them die and hath issue and the Lessee commit wast and one of them die and hath issue the Aunt and the issue shall joyne in an Action of wast and the issue shall recover one moyety of the Land wasted and the Aunt the other notwithstanding that actio injuriarum moritur cum persona But in favorabilibus magis attenditur quod prodest quam quod nocet in indifferent and favourable things that which profiteth is more respected then that which hurteth Relatio tunc fieri non debet si per eam actus destruatur Reg. I. c. Decius 363. Quando dispositio referri potest ad duas res ita quod secundum relationeÌ„ una vitiatur secunduÌ„ aliaÌ„ utilis sit tunc facienda est relatio ad illam ut valeatdispositio semper ita fiat relatio ut valeat dispositio C. l. 6. f. 76. b. a. A relation then ought not to be when by it an Act is destroyed As in the statutes of 32. and 34. H. 8. concerning Wills whereof is provided that every person having any Mannors Lands c. holden in capite shall have full power c. to dispose by his last will in writing or otherwise by any Act or Acts lawfully executed in his life two parts of the same Mannor c. for the advancement of his wife preferment of his children and payment of his debt or otherwise at his will and pleasure any Law statute c. those words or otherwise at his wil pleasure have reference relation only to the last wil not to the acts executed for otherwise none might have devised two parts but onely for the advancement of his wife and preferment of his children or payment of his debts which is not the intention of the Act but that he may devise two parts to whom he will so that the third descend and it was in vaine to referre those words or otherwise at his will and pleasure to Acts executed for he can do that without any authority given to him by that act And therefore when the disposition may be referred to two things so as according to the relation one of them may be destroyed and according to the other shall be commodious then the relation is to be made to that that the disposition may be of force and alwayes the relation is so to be that the disposition may availe in Sir G. Cursons case So Coke l. 3. f. 28. b. Butler and Bakers case relation is a fiction in law to make a nullity of a thing from the beginning to a certaine intent which in truth had being and the rather for necessities sake ut res magis valeat quam pareat As if a man make a gift in taile to Baron and feme and afterwards grants the reversion of those Lands and since the Baron dies and the feme to have her dower waiveth and disagreeth to the estate taile now in regard of her it is a nullity of the estate from the beginning and to such an intent the Law faineth that the estate was onely made to the baron but as to the grant of the reversion that is a collaterall Act and her refusall shall not have such relation for she may be endowed though that estate stand and so no necessity and therefore without necessity ut res magis valeat the Law will not faine any nullity but in a destruction of a loyall estate vested the law will never make any fiction vide ibidem plura So relation shall make things have been as if as if they never had been 1. H. 7. 16 The husband disagreeth to a Feoffement made by his wife it is void from the beginning so that he may plead ne infeosse pas so 14. H. 8. 10. A devise is that the Executors may sell land c. when they sell all meane charges made by the heire in the interim shall be avoided by relation to the time of the death of the Testator so 14. H. 8 18. I disseise A. to the use of B. the dissiesee releaseth to mee and then B. agreeth with the disseisee this agreement by relation shall be as if he had agreed before the release and so shall defeat it Jurors alien their Lands away between the teste of the Writ of attaint and judgement yet they shall be charged to the King for the estreptment by relation 22. E. 3. 16. Caufe of Assise brought for rescuing a distresse taken for rent and then an Office is found which entitleth the King who seiseth the Land and then an Ouster le maine is sued the Assise is gone for ever because the King shall be said to be in possession at the time of the rescous
entred and after that a concord is made or a fine levied this is void in respect the verity appeareth on record for where the verity is apparent in the record the adverse party shall not be estopped to take advantage of the truth for he cannot be estopped to alleage the truth an impropriation is made after the death of the Incumbent to a Bishop and his successors the Bishop by indenture demiseth the parsonage for forty yeares to begin after the death of the incumbent the Deane and Chapter confirmeth it the incumbent dieth this demise shall not conclude because it appeareth that he had nothing in the appropriation till after the death of the incumbent ibid. Coke l. 10 f. 62. a. If a Bishop maketh a Lease of Lands for four lives and one of them dieth in his life so as now there be but three and after he dieth yet it shall not bind the successor for those things which have a bad beginning can scarcely be brought to a good end Ployd f. 344. a. If a Feme covert giveth Lands devisable by the common law by will and publish it and after the Baron dieth after the wife dieth the devise is void because the foundation is founded on the first parts to wit the making and publiâ—hing which are void though at the time of her death she was discovert but the death without a good beginning giveth no effect so if an infant maketh a Will and publish it and after is at full age it is not of effect causa qua supra ibidem Ployd f. 344. a. If one disseise one of two acres in Dale and the disseisee releaseth to the disseisor all his right he haâ—h in all the lands in Dale and delivereth the release as an escrowl to be delivered to the disseisor as his deed the last day of May before that time the disseisor diseiseth him of another acre in D. and after the deed is delivered to the disseisor the last day of May the right which hee hath in the third acre shall not pass for the beginning and the intent is to be respected in all acts So if one have a reversion in fee of two acres which I. S. holdeth for life and granteth to another the reversion of all the acres that I. S. holdeth for life and then the grantor purchaseth the reversion of another acre I. S. holdeth for life and after I. S. attorneth to the grantee for all the three acres the third acre shall not pass for the reason abovesaid If a man devise the manner of Dale or white acre Excepton and have nothing in it at the time of making the Will and after purchaseth it there it shall pass to the devisee for it shall be taken that his intent was to purchase it Ployd f. 344. a. If I let B. acre by deed indented in which I have nothing and I purchase it afterwardes it is a good Lease 8. f. 3. 24. F. n. b. f. 73. c. If a man be distrained in any liberty and he sue a replevin there by plaint or by Writ and after hanging the plaint in the Liberty he be distrained again for the same cause by the same person who distrained he shall not have a Writ of recaption because the plaint is not holden before the Sheriff c. nor before the Justices but if the plaint bee removed by pone and out of the Liberty before the Justices there the party shall have a Writ of recaption as well for the reprisall before the Writ as for the reprisall after whereas otherwise before the removal a recaption did not lie upon the reprisall of a distress in case a replevin was sued in a Mannor or Liberty and not in the County Coke l. 8. f. 78. a. Tenant in taile is the remainder in taile of the grant of the King if tenant in taile acknowledgeth a fine or suffereth a common recovery it shall not barre the issues because the reversion was in the King but if after the reversion be granted and put out of the crowne the fine shall bar the issues Coke com f. 14. a. Quod prius est dignius est qui pâ—ior est tempore potior est jure Eract l. 2. c. 10. and therefore among the males the eldest brother and his posterity descending from him shall inherit before any yonger brother because Littleton saith he is most worthy of blood and Bracton Siquis plures filios habuerit jus proprietatis primo descendit ad primogenitum eo quod inventus est primo in rerum natura whosoever hath many sons the right of propriety shall descend to the first borne in that hee first is found in the nature of things and in King Alfreds time Knights fees descended to the eldest son Glanvill l. 7. c. 3. vide ibidem plura Coke l. 4. Druties case f. 90. a. Though a Countess may have as many â—haplaines as she will by the Common Law yet by the statute can shee have but two capable of dispensation and reason requireth that he that hath served longest should be first preferred for he that is the former in time is the more worthy in Law Ployd f. 259. a. D. Hales case Baron and Feme are joyntenants of a Lease for two yeares there are no moieties between them but every of them hath the whole and if the husband charge the Land shee after her death shall avoid it 7. H. 6. f. 1. for she is remitted to the terme and is in upon a title parameunt the grant So if a man alien trees growing upon the ground entailed or in land which he hath in right of his wife and dieth before they are cut downe the alienee shall not fell them because the issue in taile is in upon a title paramount the alienâ—tion P. 18. E. 4. f. 5. 14. H. 4. f. 32. The Lord may take his Ward which is an apprentice out of the possession of his master because his title to his body accrueth in respect of his signiory which is more ancient than his apprentiship Ployd ibidem When one hath a presentment to a Church two turnes and another a third turne if he that hath the third turne bring a â—uare impedit he shall not begin with his owne turne first but with the other two turnes Vnumquodque principior um est sibimetipsi fides cum ea negantibus non est disputandum quia ad principia non est ratio Fortescue de laudibus legum Angl. f. 11. Dyer 271. a. There are principles of being so all causes are the principles of their effects and there are principles of knowledge so a proposition by which as the more knowen another is conceived is a principle and of this principle it is said That every principle is of credit to it selfe and that we ought not to dispute against denyers of principles As arrearages of Rent-charge being due to a woman sole and after shee taketh an husband and then another day of payment
husbands because it is possible for the husband to have got it and whose soever the Cow is his is the Calfe also Swinwood f. 18. And if the issue be borne within a month or day after marriage between parties of a full lawfull age the child is legitimate Coke Com. f. 244. a. And in the legall understanding of the common Law he is said to be haeres who is ex justis nuptijs procreatus borne of lawful matrimony haeres legitimus est quem nuptiae demonstrant and he is a lawfull heire whom marriage demonstrated so to be Coke ibidem f. 7. b. Coke l. 7. f. 44. a. One who is engendred in avowtry during the coverture is a mulier by the temporall and common Law though a bastard by the spirituall Law Jus sanguinis quod in legitimis successionibus spectatur ipso nativitatis tempore quaesitum est Reg. I. C. The right of blood which is regarded in lawfull successions or inheritances is found in the very time of the nativity and therefore jus primogeniturae the tight of the elder Brother-ship in the cause of inheritance is principally to be respected because it is in the eldest Son and his issue per modum substantiae and that which is in any person per modum substantiae is inseperable from him and cannot be extended to any other besides it is against the Laws of proximity of degrees that those which are in a remote degree should be preferred before those of the next degree and therefore in all common weales for the most part proximity of blood hath been preferred of which we have a notable example confirmed by the act of Lycurgus the judicious Law-giver as when Eunonus King of the Lacedaenonians had two Sons Polydectes the elder and Lycurgus the younger and Polydectes deceased leaving no Son living at the time of his death the Scepter of the Kingdome was seated in the hands of Lycurgus afterwards when Polydectes Widdow had brought forth a Son Lycurgus did willingly and peaceably yeeld to him the Scepter which act of Lycurgus agreeth fully with our Laws whereby it is ruled that if a man have a Son and Daughter and the Son purchaseth Land and dyeth the Daughter entreth and after the Father begetteth another Son of the same Wife this Son shall have the Land 19. H. 6. b and is also ratified by diverse examples in the successions of our Kings I will instance onely in one and the most illustrious one King Edward the third being deceased Richard the second the Son of his eldest Son obtained the Kingdome and was preferred before John Edmund and Thomas the sons of the same King wheras any of them was more worthy and fit for the Scepter yet is it granted that in succession of regall dignity jus primogeniturae is not constantly observed because in that case the good of the common-weale and commodity of the people is politically to be respected and as the Civilians the good estate of the Kingdome and Subjects is more to be heeded quam sangninis series then the pedigree of blood and so Solomon the younger Brother was advanced before the elder by the hand of David his Father and Roboam preferred Abias his younger Son yet this must be done cautiously and with a good conscience and intention and probably for the utility of the State otherwise it will neither please God nor man yet in the disposing of private estates the Law of Primogeniture is more strictly to be observed because by it confusion and dissention is avoyded which from the contrary doth proceed as is intimated by Coke l. 3. f. 40. b. Wherein our Law excelleth which preferreth the elder Brother and his issue before the younger Brother and his issue in case of descent and that jure sanguinis by his birth right as he is most worthy of blood and therefore as Coke in his com f. 14. a. The male and all descendant from him shall inherit before the female and among the males the eldest Brother and his posterity shall inherit Lands in Fee-simple as heire before any younger Brother or any descending from him whereas by the Civill Law the inheritance is divided among the males Lutleton l. 1. c. 1. There be three Brothers and the middle Brother purchaseth Lands in Fee simple and dyeth without issue the elder Brother shall have the Land by descent so also it is if the youngest purchaseth Lands in Fee and dyeth without issue the eldest shall have it jure sanguinis because he is the worthiest of blood Little So if a man enfeoffe another upon condition and the condition is broken and then the Feoffor dyeth without issue his wife privement ensaint and the Brother of the Feoffor enter for the condition broken and after a Son is borne he shall avoid the possession of the Uncle and may lawfully claime the inheritance 9. H. 7. 25. And 9. H. 8. 23. It is said that after two or more descents the heire afterwards born claiming by descent may enter into Land but he shall not have a Writ of account for the meane profits And though Littleton in defence of the custome of Gavelkind by which the issues may equally inherit alledgeth the reason that every Son is as great a Gentleman as the eldest Son is yet as Sr. Edward Coke com a. f. 14. saith Gentry and arms doth not descend to all the brethren alike for the eldest jure primogeniturae shall beare as a badg of his birth-right his Fathers armes without any difference because he is more worthy of blood but all the younger brethren shall give severall differences additio probat minoritatem and the addition demonstrateth and proveth the minority of the issue but by the Statute of 31. H. 8. A great part of Rent is made descendible to the eldest Son according to the course of the common Law for that by the meanes of that custome diverse antient and great families after a few descents came to very little or nothing according to the simile of the Poet In plures quoties rivos deducitur amnis Fit minor ac unda deficiente perit A Flood deduced into little streames Coke ibid. Soone groweth lesse and falleth by that meanes But in cases of purchase it is otherwise a. 15. E. 4. If a man devise land to a man and his heire and the devisee dieth having issue a daughter his wife privement enseint with a son who is afterwards borne the daughter shall enjoy the Land in perpetuum And 9. H. 6. 23. It is said that if the remainder cannot vest at any time when it falleth it shall not vest in him is borne afterwards where another hath entred before 2. Eliz. 190. Pl. 18. If a lease for life be made the remainder to the right heires of I. S. and I. S. is then alive the inheritance passeth presently out of the Lessor but cannot vest in the heire of I. S. for then living his father he is not in rerum natura for non
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
and a Law was that thereby there might be certainty of titles and a peaceable possession without contradiction and as a Civilian saith ut sit finis litium that there might be an end of suits and therefore were the Statutes of limitation made within which the demandant that bringeth the action must prove himselfe or some of his Ancestors to be seised and in antient time the limitation in a Writ of right was from the time of H. 1. after that by the Statute of Merton the limitation was from the time of Henry the second and by the Statute of Westminster the first the limitation was from the time of Richard the first but because that limitation of the writ of right was for so long time passed the limitation of a writ of right was changed by the Statute of 32. H. 8. and reduced to threescore years next before the Teste of the Writ and so of other actions Coke com f. 115. a. vide ibidem plura And afterwards another Act was made 21. Jacob. that for the avoiding of suits all writs of Formedon in Descender Formedon in Remainder and Formedon in Reverter for any Mannors c. shall be sued and taken within twenty years and that after the twenty years expired none such or any of their heires shall have any such writ and that no person that hath right or title of entry into any Mannors c. shall thereunto enter but within twenty years vide ibidem cap. 6. plura But it is to be observed that time of limitation is twofold first in writs that is by diverse acts of Parliament the second is to make a title of inheritance and that is as hath been said to pleade a prescription de tempore cujus contrarium memoria hominum non existit Coke com f. 14. 15. which is by the common Law And this also accordeth with the rule of Bracton Longa possessio sicut jus parit jus possidendi tollit actionem a vero domino l. 2. f. 52. Long possession as right begetteth a right and taketh away an action from the true Lord and owner And so in antient times if the disseisor had been long in possession the Disseisee could not have entred upon him neither could the Disseisee have entred upon the Feoffee of the Disseisor if he had continued a yeare and a day in quiet possession and though the Law be now changed yet at this day the Disseisor dying seised being an act in Law barreth the disseisee of his entrance upon the heire and for that many advantages follow the possession and tenant the law taketh away the entry of him that would not enter upon the Ancestor who is presumed to know his title and driveth him to his Action against the heire that may be ignorant thereof Coke com f. 237. b. And for the above said reason the law yieldeth diverse utilities and advantages to the possessor for it is better to be a possessor then to complaine of others who are possessors because it imposeth the burden of proving on the Plaintiff so as if he can prove nothing he which possesseth shall be acquitted neither can possession be avoided but by possession Ployd 137 b. As if I make a lease for years of the lands of my wife and die the lease is not void before entry made by the wife for possession must be avoided by possession and such possession must be gained by entry But if my father die and his land descend to me a Lease for yeares made before my entry is good because I have possession in law and none hath possession in deed but if a stranger abate a lease made by me after is void for the stranger hath possession indeed before my entry upon him Ployd ibid. If an Executor bring an Action of trespasse for goods taken out of his possession it is not needfull to shew the Testament but if hee not ever was possessed of them but doth demand the thing then hee ought to have shewn the testament Ployd f. 46. a. And regularly it holdeth true that when the naked right of Land is released to one that hath jus possessionis and the other by a meane title recovereth the land from him the right in possession shall draw the naked right with it and shall not leave a right in him to whom the release is made as if the heire of the disseisor being in by descent is disseised by A. and the disseisee release to A. now hath A. the meere right to the land but if the heire of the disseisor enter into the Land and regaineth possession that shall draw with it the meere right to the land and shall not regaine the possession onely and leave the meere right in A. but the recontinuance of the possession the meere right is therewith vested in the heire of the disseisor Coke com 266. a. If a woman possessed of a terme for yeares take an husband and the wife dieth though during the life of the wife the terme was not devested out of the wife yet by her death it is vested in the husband and it is given to him by Act in law because it is a thing in possession and not in Action Pl f. 192. b. In pari causa possessor potior haberi debet Reg. I. C. In aequali jure â—elior est conditio possidentis Coke l. 4. f. 90. a As the Lord who is allowed but three Chaplaines retaineth six by his letters testimoniall at one and the same time and all the six are prefeâ—red to six severall plurallities the three which are first promoted are warranted by the statutes and yet the retainer was not according to the statute for in aequali jure melior est conditio possidentis In equall right better is the condition of him who is in possession ibidem If a man purchaseth severall lands at one time which are holden of several Lords by Knights service and dieth the Lord who first seiseth the ward shall have him because they are in aequali jure and there is no priority betweene them which if there were the elder Lord shall have him Perk. f. 6. If ten Mannors be conveyed to two severall persons by one deed which of them happeneth to get the Deed first may detaine it Two Attorneys are retained conjunctim divisim joyntly and severally the plea of him that first pleadeth shall stand because they are in aequali jure to plead If there be two joynt-tenants and one of them taketh all the profits of the land or all the rent the other hath no remedy Coke l. 2. f. 68. a. So the release of all Actions personall by one barreth the other but otherwise it is if the personalty be mixed with the realty and if there be two joynt-tenants Lords and the tenant holdeth by Knights service and the tenant dieth his heire within age and one Lord seiseth the Ward and the other distraineth for the services he that first seiseth or distraineth shall bind the other And
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
this is an accord rather then a contract and upon such accord the thing in recompence must be paid or delivered in hand for upon accord there lyeth no Action Dr. and St. c. 24. f. 104. which accordeth with the resolve in Cok l. 6. f. 43. Blakes case accord with satisfaction is a good bar for the personalty but not for the realty vide ibid. plura An implicite consideration is when the law doth intend a consideration so the Host of any common Inne may detaine a mans horse if he will not pay him Dier 30. And a Taylor may deteine the apparrel untill he is paid for his labour 5. E. 4. 2. Fulb. l. 1. f. 6. Hereunto belongeth contracts in law though not arising from the consent of the parties as he that findeth another mans goods is chargeable by reason of the possession to him that right hath so he that receiveth monies to ones use or to deliver over to him is chargeable as a receivor so is he that entreth into land and receiveth the profits Finch Nomot f. 181. Exception In an action of debt upon an obligation the consideration upon which it was made is not to be enquired for it is sufficient to say that it pleased him to make the obligation Ployd 309. b. vide ibid. plura Though it be probable that upon every bond there is a contract because he confesseth the debt but if there were none the creditor needeth not to prove no more then the delivery of it And for the same reason the law respecteth matters of profit and interest more then matters of pleasure trust and authority or limitation for matters of profit shall be taken more largely and may be assigned and not be countermanded but matters of pleasure trust and authority shall be taken more strictly and may be countermanded Finch Nomot f 31. As a licence to hunt in my Park or to walke in my Garden extendeth onely to himselfe and not to his servants or other in his company for it is but a thing of pleasure otherwise it is of a licence to hunt kill and carry away the Deer for that is a matter of profit 13. H. 7. 18. A way granted to a Church over my land extendeth not to any other but to himselfe for it is but an easement 12. H. 7 25. b. A reversion granted to two joyntly and the meant attorneth to one it is a void attornement 11. H. 7. 12. b. If the Sheriff be-head one should be hanged it is felony 35. H. 5 58. b. The King licenceth one to alien the third part of his land and he alieneth all it is a void alienation for all 4. E. 6. 68. b. A lease is made to A. and B. for their lives A dieth B. shall have all during his life for it is an interest but if a lease be made to I. S. during the life of A. and B. there if one of them die the estate is utterly determined for that is a limitation A licence to come to my house to speak with me 9. E. 4. 4. b. or goods bailed over to deliver to I. S. 1. E. 5. 2. or to bestow in almes Dyer 22. or a letter of Attorney to deliver seisin Perkins all these may be countermanded before they be done because they be matters of trust Bur if I present I. S. to a Church I cannot afterwards vary and present a new for a kind of interest passeth out of me 14. E. 4. 1. So if I deliver an obligation as an escrowe into a strangers hand to be delivered to the obligee upon condition performed I cannot recall it for the obligee is as it were a party and privy to the delivery Perk. 19. b. Nemo tenetur prodere seipsum Ployd f. 32. b. The Law will not enforce any one to shew that which is against himselfe As if a man grant to one an Annuity pro consilio impendendo the Grantee shall have a Writ of Annuity without shewing that he hath given him Counsell for the shewing of it is not for his benefit and the deniall Counsell goeth in defeasance of the Annuity which ought to be shewen by the Plaintiff because he shall have the benefit of the defeasance M. 39. H. 6. f. 22. So in 15. H. 7. f. 1. It is holden if an Annuity be granted to one untill he be promoted to a benefice he shall have a writ of Annuity and shall not shew that he is not advanced to a benefice for that goeth in defeasance of the Annuity which must be shewen by him who shall take advantage of the defeasance but there it is holden that if he had granted that if the party had first done such a thing that then he shall have an Annuity that there he ought to shew the performance of the thing in his count to enable him to the Annuity in that the condition precedeth the estate and enableth him to to the estate and so the diversity vide ibidem plura in Colthirsts case Nemo tenetur turpitudinem suam detegere Reg. I C. No man is bound to bewray his own shame and crime and therefore the Law is that if a man for feare or simplicity will confesse himselfe guilty of a Felony yet the Judges must not record that confession but suffer him to pleade not guilty Finch Nomos f. 29. Accusare nemo se debet nisi coram Deo Vasques no man ought to accuse himselfe but before God and therefore no man ought to be enforced to sweare against himselfe before man and the reason thereof is given by Coke l. 4. f. 9. 5. Slades case Jurare in propria persona est saepenumero in hoc seculo praecipitium diaboli ad detrudendas miserorum anim is ad infernum to sweare in his own person is oftentimes in this world the precipice of the Devill to cast downe the soules of miserable men into hell and therefore in debt or other action where wager of Law is admitted by the Law the Judges without good admonition or due examination of the party doe not admit him to it and for this reason Coke is of opinion that where one may have severall action to wit an action upon the case upon an assumpsit or an action of debt wherein the Defendant may wage his Law it is better and lesse mischeivous to bring an action upon the case then an action of debt for now experience proveth that the consciences of men grow so large that the respect of their private commodity doth rather induce men and principally those who have declining estates to perjury according to the censure of the Satyrist Jures licet Samothracum Et nostrarum aras Juvenall contemnere fulmina pauper Creditur atque deos Swear by our Altars and the Gods of Wonder For gaine the poore will scorne them and Joves thunder And therfore by the Civil Law Rejicitur pauper pro teste a poor man is excepted against for being a witness though in our Law he is a sufficient witness
if he be an honest man Swimb f. 210. It is an observation of a Divine that oathes ex officio had their birth from Caiphas Math. 26. who who first imposed it on our Saviour in the name of the living God saying I adjure or charge thee in the name of the living God that thou tellest us whither thou be'st Christ the Son of the living God And Mr. Pryn saith that Cardinall Woolsy the highest Priest in England was the first that invented oathes ex officio in England and that they were much inveighed against by Latimer in his Sermons and condemned by the expresse words of the petition of right providing against such oathes Prin. Vind. f. 42. Impotentia excusat legem impotency excuseth the Law Coke com f. 29. a. The Law tendreth the weaknesses and debilities of others execuseth their un-abilities ultra posse non est esse because no man is able to doe more then he can do As if a man dyeth seised of Lands in fee-simple c. and these Lands descend to his Daughter and shee taketh an husband and hath issue and dyerh before any entry the husband shall not be tenant by courtesy because it was in the power of the husband to have entred but if a man be seised of an advowson or a rent in fâ—e and hath issue a daughter who is married and hath issue and dyeth seised the wife before the rent became due or the Church became void dyeth he shall be Tenant by courtesy because he could by no industry enter or attaine to any other seisin then a seisin in Law or bring it to an actuall seisin And f. 258. b Though an Hermite or an Anachorite be shut up himself so as by his order he is not to come out in person yet to avoid a descent he may command one to make claim and such a recluse may allwayes appeare by an Attorney in such cases where others must appeare in proper person and f. 263. b. An Abbot of a Monastery dyeth and during the vacation one wrongfully entreth into a certaine parcell of the Land of the Monastery claiming the Land to him and his heirs and dyeth seised and the Land descendeth to the heire and then one is elected Abbot the Abbot may enter upon the heire for by the death of the Abbot no person is able to make continuall claime and therefore a descent in that kind shall not prejudice the succession Coke l. 1. f. 98. a. If the Lessee Covenant to leave wood in the same plight the wood was at the time of the lease and afterwards the trees be sub-verted by tempest hs is discharged of his covenant by reason of his impotency and l. 4. f. 11. a. If the Lord release to the Tenant so long as I. S. hath heire of his body and sixty years passe and then I. S. dyeth without heire of his body in this case though the sixty years be passed yet the Lord may distraine for it was impossible that she should attaine to any seisin within that time and therefore the act of limitation made in 32. H. 8. doth not extend to such rent or service that by common possibility could not happen or become due within sixty years and so if Land holden by Homage and Fealty be conveyed to a Mayor and Commonalty c. in this case they cannot doe their Homage and Fealty yet though they have enjoyed the Land above sixty years if they alien the Land the Lord may distraine for Homage and Fealty 33 H 8. Br. Tit. Fealty 15. vide ibidem pluta in Bevills case and lib. 6. f. 21. b. in Butlers case It was resolved that legall imprisonment without Covin is a good excuse of non-residency in any Parson by reason of his impotency Quod remedio destituitur ipsa revalet si culpa ab sit the thing which is destitute of remedy availeth in the matter it selfe if there be no fault or laches in the party Coke l. 6. f. 68. a. As if a man be seised of a manner part of which is in lease for life and part in lease for yeares and levieth a fâ—ne to A. to the use of B. in tail with diverse remainders over in this case B. shall avow for rent or have an Action of Wast without any Attornement for when the reversion is setled in any one in judgement of Law and he hath no meanes to compell the tenant to attorne and no laches or fault is in him there he shall avow or have an Action of Wast without Attornment As if the Lord in Mortmaine or if a villaine claimeth a reversion by this claime the Law vesteth thiS reversion in him and he hath no meanes to compell the tenant to attorne and therefore he shall avow or have an Action of Wast without Attornement the same Law is of Letters Patents and of the devise of a reversion for in all those cases culpa abest there is no fault 9. H. 6. vide ibidem plura in Sir Moile Finches case And Coke l. 8. f. 172. b. in Hales case If the heire at full age tender his livery and dyeth within three months before he hath accomplished it so as the making of his homage or suing out of his livery without default in him is become impossible by the act of God he shall have as much advantage by his tender as if he had made homage or sued out his livery for impotency in this case excuseth the Law and in the judgement of the Law the interest of the King by the said limitation is determined as if the Lord had taken homage of the heire when he made his tender vide ibidem plura Coke l. 10. f. 139. b. If tenant for life or for years doth not repaire a wall of dirt so as by his default the Land is surrounded and becometh unprofitable that is Wast but if the Land be surrounded by the extraordinary rage and violence of the Sea without any default in him that is not Wast no more then if an house was burnt by lightning or subverted by the rage of the wind or tempest without default of the Lessee for impotency excuseth the party vide ibidem plura in Kighleys case So as it is regularly true that the Law tendreth the infirmities of unable persons and excuseth their impossibilities as of men illiterate out of the Realme in Prison Infants Idiots out of their sound minde as also of blind and deafe dumbe and blind If a man illiterate be bound to make a deed he is not bound to seale or deliver any writing that shall be tendred unto him and if it be Latine or other Language which he understandeth not he may demand that one read it and expound it unto him and if none be there present to read and expound it the party may refuse to deliver it for his ignorance excuseth him Coke l. 2. f. 3. Mansers case And for that reason if the Deede be read unto him in other words then are contained within
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
and his Heires shall not alien the bond is good yet he may notwithstanding alien if he will forfeit his bond that he himselfe hath made So a bond with condition that the Feoffee shall not take the profits is good so a bond upon condition to enfeoff his wife is good though it be against a maxime in Law Coke com f. 206. And if the husband be bound to pay his wife mony the bond is good Non valet impedimentum quod de jure non sertitur effectuum Reg. I. C. Coke l. 4. 31. a. The let or impediment availeth not which taketh not his effect from the Law as if the Lord be disseised and the disseisor dyeth seised or if the Land be recovered from him by verdict or erronious judgement in these cases untill the Land is recovered or the judgment annihilated by the Law the land is not demisable and yet after the land be re-continued it is grantable againe by copy but if copy-hold lands be forfeited to the Lord or escheate and before any new grant made those lands be extended upon a Statute or Recognisance acknowledged by the Lord or if the wife of the Lord in a writ of dower hath that land assigned to her though those impediments be acts in law yet for that that those interruptions are legall the lands shall never after be granted by copy ibidem The words of an Act of Parliament must be taken in a lawfull and rightfull sense as where by the Statute of Gloucester it is forbidden that the husband shal not alien the lands he hath in right of his wife whereof no fine is levied in the Kings court those words are to be understood where no fine is lawfully levied in the Kings Court and therefore a fine levied by the husband alone is not within the meaning of that Statute for that fine should worke a wrong to the wife but a fine levied by the husband and wife is intended by the Statute and that is lawfull and worketh no wrong for generally the rule is non praestat impedimentum quod de jure non sortitur effectum so the Statute of W. 2. c. 5. Ita quod episcopus ecclesiam conferat is construed ita quod episcopus ecclesiam legitime conferat Coke com f. 361. b. Nullam iniquam in jure praesumendum Coke l. 4. f. 71. No injurious thing is to be presumed in the law for the law so abhorreth injury that it granteth writs of anticipation to prevent them quia timet because a man feareth them and that before any molestation distresse or impleading and there are six sorts of such writs first a man may have his writ of Mesne before he be distrained 2. a Warrantia Cartae before he be impleaded 3. a Monstraverunt before any distresse or vexation 4. an Audita quereta before any execution sued 5. a Curia claudenda before any default of inclosure and is a ne Injuste vexes before any distresse or molestation Coke com f. 100. a. And such an Antipathy there is between the Law and injury that no injury is to be presumed in the law and as Coke l. 10 f. 56. a. Odiosa in honesta non sunt in lege praesumenda in facto quod se habet ad bonum ad malum magis de bono quam de malo praesumendum est odious and dishonest things are not presumed to be in the law and in a deed or action which hath in it both good and evil it ought to be more presumed of the good then of the evill as there in the case of the Chancellor of Oxford it was resolved that covin and fraud shall never be intended or presumed in the law unlesse it be expresly averred and in the case of Tier and Meriell Trin. 10. Jacob. That if no fraude be found by the Jurors the Judges shall not adjudge a Feoffment fraudulent and that though the Jurors have found circumstances and presumptions to intitle the Jurors to find fraude it is but evidence to the Jury and not any matter upon which the Court may adjudge fraude and the office of the Jurors is to adjudge upon the evidence concerning matter of fact and upon it to give their verdict and not to leave matter of evidence to the Court to judge which doth not appeare to them as if A. bring an action of the case against B. upon trover and conversion of Plate and Jewells and the Defendant pleadeth not guilty now it is good evidence to prove the conversion that the Plaintiff requested the Defendant to deliver them and he refused it and by it it shall be presumed that he hath converted them to his use yet notwithstanding that is but evidence and if it be found by a speciall verdict that the Plaintiff requested them of the Defendant and he refused it that is not matter upon which the Court can adjudge any conversion for the conversion ought to alter the action of detinue into a trespasse upon the case which a denier cannot in law make for in every action of Detinue there is alledged in the count a request and a refusall yet it is good evidence and hath allwayes been allowed to prove a conversion that the Plaintiff demanded the goods and the Defendant refused to deliver them Coke l. 10. In the case of the Chancellor of Oxford vide ibidem plura Nomen non sufficit si res non sit de jure aut de facto the name of a thing is not sufficient if the matter and substance be not of right or deed Coke l. 4. f. 107. b. Pope Vrbane at the request of Ralph Baron of Greystack founded a Colledge of a Master and six Preists resident at Greystock and assigned to every one of his Preists five markes by the year besides his Bed and Chamber and the Master forty pounds by the yeare and this certified in the Book of first fruits and tenths Rectoriam Collegium of Greystock and the said Colledge was in being five years before the Act of 1. E. 6. And it was resolved by all the Judges that such a reputative Colledge was not given to the King by the Act of 1. E. 6. because it had no lawfull beginning nor the countenance of a lawfull beginning for the Pope cannot found or incorporate a Colledge within this Realme nor to assigne or license others to assigne temporall livings to it for it ought to be done by the King and no other for the name doth suffice if the matter be not of right or deed Dier 81. Quando duo jura in una persona concurrunt aequum est ac si essent in diversis Reg. I. C. Ployd f. 368. a. when two rights concur meet together in one person it is all one as if they were in severall persons As if one hath an estate for the life of A. the remainder to him for the life of B. the remainder to him for the life of C. and he is disseised and the disseisor levieth
by misadventure as by an Arrow at Butts this hath a pardon of course but if a man be hurt or maimed onely an Action of Trespass lyeth though it be done against the parties will and he shall be punished in the Law as grievously as if he had done it of malice Stanf. 16.6 E. 4.7 So if a Chyrurgion authorized to practise do through negligence of his cure cause the party to dye this Chyrurgion shall not be questioned for his life yet if he do onely hurt the Wound whereby the cure is cast back and death ensueth not he is subject to an Action of the Case for it Stanf. 16. So if Baron and Feme commit Felony together the Feme in regard of the subjection of her will to her husband shal neither be principal not accessary but if they joyn in committing a Trespass upon land or otherwise the Action may be brought against them both So if an Infant wanting discretion or a mad-man kill another he shall not be impeached thereof but if they do him any corpâ—rall hurt he shall be punished in Trespass 35 H. 6. 11. So in Felony if the principall dye or be pardoned the proceeding against the accessory faileth But in a Trespass if one commandeth his man to beat you and after the Battery the Servant dyeth yet you may have an Action of Trespass against the Master 17 H 4.19 Aestimatio praeteriti delicti post facta nunquam crescit Bac. Max f. 32. In penall Lawes and Facts the Law considereth the degree of the offence not as it standeth at this time when it is committed but for any circumstance or matter subsequent the Law doth not extend or amplifie the same As if a man be wounded and the Percussor is voluntarily let to go at liberty by the Goalor and after the party wounded dyeth yet it is no Felonious escape in the Goaler 11 H. 4.12 So if one conspire the death of one who after cometh to be King not being within the Statute of 25 E. 3. this is high not high Treason but otherwise it is in civill and common cases vide ibidem Plur. Ipsae etenim leges cupiunt ut jure regantur Co. l. 2. f. 25. In omnibus quidem maxime tamen in jure aequitas est Reg. I. C. In all things but especially in the Law there is equity and the Lawes themselves desire to be ruled by equity For inasmuch as no Legislators can foresee all things which may happen it was therfore convenient as Ploydon saith that that fault should be reformed by equity And is either an amplification or diminution of the Law and no part of the Law but a morall vertue which reformeth the Law for dirigens and directum are diverse things and equity is not a Law but the emendation of the Law and therefore the Lawes themselves desire to be ruled by equity As whereas the Debtor after he is become Bankrupt may prefer one and defraud others the Act of 13 Eliz. c. 7. hath appointed certain Commissioners of indifferency and credit to releive the Creditors of the Bankrupt equally and that there shall be an equall and rateable proportion observed in the distribution of the Goods of the Bankrupt among his Creditors having regard to the quantity of their severall debts so that one shall not prevent the other but all shall be in aequali jure and so we see in many cases as well at the Common Law as upon the like statutes such constructions have been made for as Cato said Ipsae etenim leges cupiunt ut jure regantur and therefore is it holden 35 H. 8. Title Testaments V. de plura in Herberts case lib. 7. Bro. 19. A man holdeth three Mannors of three severall Lords by Knights-service every Mannor being of equall value he cannot devise two Mannors and leave the third to descend according to the generality of the Acts of 32. 34. H. 8. of Wills for then it shall prejudice the other two Lords but by equall construction he cannot devise but two parts of every Mannor and so as equality shall be observed among them and so at the Common Law an equality is required as in 11 H. 7. 12. b. a man is bound in an Obligation and his Heirs and he hath Heirs and hath lands of the part of his Father and part of his Mother both the Heirs shall be equally charged vide ibidem plura Co. Com. f. 10. a. If partition be made between Parceners of lands in Fee simple and for novelty of partition one granted a rent to the other generally the Grantee shall have a Fee-simple without this word Heirs because the Grantor hath a Fee-simple in consideration whereof he granted the rent Ipsae etenim leges c. And Co. Com. f. 271. a. b. when a Feoffment is made to a future use as to the performance of his last Will the Feoffee shall be seised to the use of the Feoffor and his Heires in the mean time for the Lawes desire to be ruled by right and equity And reason would that seeing the Feoffment is made without consideration and the Feoffor hath not disposed of the profits in the mean time that by construction and intendment of Law the Feoffor ought to occupy the same in the mean time And so it is when the Feoffor disposeth the profits for a particular time in presenti the use of the Inheritance shall be to him and his Heires as a thing not disposed of Co. ibidem Co. l. 5. f. 100. a. The Commissioners of Sewers by the Statute of 6 H. 6. c. 5. and 23 H. 8. c. 5. ought to tax all equally which are in danger to be endamaged by not repairing the Banks and not him onely who hath land adjoyning to the River for otherwise the rage and force of the water may be so great as the value of the land adjoyning shall not serve to repaire the Banks and therefore the Statutes will have all who be in the same perill and are to receive commodity by it to be contributory and the statutes require equality which well standeth with the rule of equity for equitas in Bracton est quasi aequalitas and though the Owner of the Land next adjoyning to the River was bound by prescription to repaire the banks of the River yet the Commissioners ought not to charge him only with all but to take all those which have lands in danger for otherwise it may that all the country shall be surrounded before that one person onely can repaire the Banks vide ibidem plura In Fooks case Coke l 7. f. 123. b. When the King granteth any Land without the reservation of any Tenure or without any thing from thence to be rendred or the like that land by the operation of Law shall be holden of the King in Capite by the service of Chivalry according to the rate and proportion of land that affereth to one fee of Chivalry and so of more more and of lesse lesse for the
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
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
is an Accessary Ployd 175. But if it be to kill I. S. and he killeth I. D. mistaking him for I.S. then he is no accessary because it is different in substance And if I bid I. S. to steal such things out of an house without breaking of the house and yet he breaketh the house I am accessary to the Burglary But if a man bid one rob I. S. as he goeth to Sturbridge Faire and he rob him in his house he is not accessary for the variance is of substance Ployd ib. 175. Quando aliquid mandatur mandatur omne per quod pervenitur ad illud Coke l. 5. f. 115. b. when any thing is commanded every thing is commanded whereby we may come to it Whereas a Writ of Estrepment will lye in an action of Wast because he cannot receive more damages then are contained in the Count and can assign no Wast after the Writ purchased if a Writ of Estrepment commeth to the Sheriff by virtue of it he may resist those which will make waste and if otherwise he cannot yet it is lawfull for him to imprison them and to make Warrants to others to do the same and if it be necessary he may take a Posse commitatus for his aid though the words of the Writ onely be that he shall personally go to the Messuage and altogether take order that no wast or estrepment of the said Messuage be according to the foâ—m of the statute whilest the said plea hangeth indiscussed because when any thing is commanded every thing also is commanded by which we may come to it Quando aliquid prohibetur prohibetur id per quod pervenitur ad illud Col. 9. f. 57. a. then any thing is forbidden that also is forbidden by which we come to it As confederation and combination among men uniting themselves together either by obligation or by promise to execute any unlawfull act is punishable by Law before the unlawfull act be executed and the Law punisheth the combination and the confederacy to the end to prevent the unlawfull act and therefore the usuall commission of Oyer and Terminer giveth power to the Commissioners to enquire of all combinations confederacies and false allegiancies and false allegiance is a false binding of anyâ— one to another by Obligation or promise to execute an illoyall act Boni judicis est lites dirimeâ—e expedit reipub ut sit finis litium propter communem omnium utilitatem Coke l. 5. f. 73. b. It is the part of a good Judge to cut off strifes and it is profitable to a Common-weal that there be an end of Suits for the common good of all in Williams case When a Chappell is not private to the Lord and his Family but is publick and common to all the Tenants of the same Mannor who may be many and of great number there no action upon the case lieth against the Vicar who ought and is bound by prescription by himself or some other to celebrate Divine Service in his Chappell c. for then every one of his Tenants may also have an action upon the case as well as the Lord himself and so infinite actions for one default but it is the part of a good Judge to break and put of suits and strifes c. and it is profitable to the Common-wealth that there be an end of suits for otherwise great oppression may be under the colour and pretext of Law For as Coke l. 6 f. 9. a. If there should be no end of suits then a rich and malicious man will by actions and suits infinitely vex him who hath right and in the end because he cannot attain to any end compell him to redeem his charge and vexation and to leave and relinquish his right vide ibidem plura And therefore Coke l. 9. f. 73. b. Accords with satisfaction are much favoured in Law for the interest of the Common wealth that there may be an end of suits and Coke com f. 306 b. every plea ought to be tryable for without tryall the case will never come to an end which would be discommodious to the republick And therefore doth the Law shun circuity of actions and such actions as are needless and may be saved and as Coke l. 5 f. 31. Circuitus est evitandus As if he that hath ten pounds issuing out of certain land disseiseth the Tenant of the land In an assise brought by the Disseisee the Disseisor shall cut off the rent in the damages insomuch as if the mean profits of the land were at the value of thirteen pounds the Disseisee shall recover but three l. 3 H. 6. 18. and the Disseisor shall cut of all the damages he hath expended in repairing the houses 14 E. 3. 92. and if Rent-service happen during the Disseisin it shall be cut off 9 E. 3. 8. and the reason of the cutting off in such case is because that otherwise the arrearages of the rent-service charge or seck shall be revived and therefore to avoid cercuity of action the arrearages during the Disseisin shall be cut off in damages Coke com f. 265. a. If there be Father and Son and the Father be disseised and the Son living the Father releaseth to the Disseisor all his right which he hath or may have in the same Tenements without clause of Warranty and then the Father dieth the Son may lawfully enter upon the possession of the Disseisor because he had no right in the land in his Fathers life but the right descended to him after the release made yet if there had been a Warranty annexed to the release then the Son should be barred for the Warranty may rebutt and bar him and his Heires of a future right which was not in him at that time and the reason wherefore a Warranty shall bar a future right is for avoiding of circuit of action as he that made the Warranty should recover the land against the Ter-tenant and he by force of the Warranty to have as much in value against the same person ibidem Upon the grant of a Ward with Warranty the Defendant in a Writ of right of Ward may rebutt the Plaintiff by that Warranty and shall not be driven to bring an action of Covenant for avoiding circuit of action Finch f. 55. In an action of Waste upon a lease of yeares by Deed and in the same Deed the Lessor granteth to the Lessee that he shall not be impeached of waste the Lessee may plead this in an action of waste and shall not be driven to bring an action of Covenant for avoiding circuit of action When a Father enfeoffeth his Son and Heir with Warranty and dieth now the Son in a Praecipe brought against him may vouch the Feoffor of his Father for the Law will not suffer him to vouch himself and when he cometh in as Voucher then to deigne the Warranty for the circuity of Voucher Malificia non debent manere impunita impunitas continuum
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
shall give notice of the said felony to some of the Inhabitants of any Village or Hamler next the place where the robbery was done and that if in their pursuit they take any of the Offenders that shall excuse them though they do not take all See there in that Statute the reason of the alteration Co. l. 6. f. 50. a. b. At the common Law a man that had once the benefit of the Clergy shall have it another time and so in infinitum which was remedied by the Act of 4 H. 7. So as the burning in the hand was not to other purpose but to notifie to the Judge whether he had had his Clergy before or no ibid. So if one be attainted at the Common Law for forging false Deeds the King cannot pardon it yet the King may pardon the corporall punishment in case of forgery in the Star-chamber because all Suites in the Star-chamber are but informations for the King though the Suit be exhibited by the party ibidem So before the Statute of 18 Eliz. c. 7. the King might in case of Inditement of Man slaughter pardon the Imprisonment 15 H. 7.9 but not in an appeal but after the Statute of 18 Eliz. by which it is provided that after Clergy allowed and burning in the hand the Prisoner shall presently be enlarged and delivered out of prison It was resolved that that Act did extend as well to the case of appeal as to the case of Inditements otherwise the party shall lawfully be discharged of his punishment and yet remain in perpetual prison ib. vide examen legum Angliae f. 29. Cessante ratione legis câ—ssat lex Coke com f. 70. b. The reason of the Law ceasing the Law it self ceaseth As he that holdeth his land by Escuage when the King maketh a Voyage royall into Scotland to subdue the Scots then he that holdeth by the service of one Knights fee ought to be with the King conveniently arrayed for the War for forty daies c. yet needeth he not go with the King himself if he will find another man and this seemeth to be good reason for it may be he is languishing so that he cannot go nor ride Also an Abbot or another man of religion or a Feme-sole which hold by such services ought not go in proper person Littleton ibidem Quia multa In jure communi propter rationabilem causam omittenda sunt for many things for a reasonable cause are to be omitted If the King give lands to an Abbot and his Successors to hold by Knights service this had been good and shall do homage and fine a man but there was no wardship or releif or other incident belonging thereunto but if the Abbot and his Heirs had conveyed the land to a natural man and his heirs now the wardship releif or other incident belonged of common right to the King So if the King give lands to a Mayor and Comminalty and their successors to be holden in Knights-service the Patentee shall do no homage neither shall there be any wardship or releif onely they shall find a man but if they convey the land to any naturall man and his heirs now marriage homage ward releif or other incidents belong hereunto for the reason of the Law being changed the Law its self is changed and the immunity which was in respect of the body politique by conveyance over ceaseth Coke ibid. Qui rationem in omnibus quaerunt rationem subvertant Theophrastus Coke l. 2 f. 7.30 who do seek reason in all things overthrow reason As if a man make a Lease of Indenture for life of lands in severall Counties and maketh livery of seisin in one County and divers daies after he maketh livery in the other County yet an intire rent shall issue out of the land in both Counties and yet the livery by which the Estate passed was made at severall times and therefore it may be argued that presently by the first livery the rent issued out of it But the Law shall not adjudge by parcels in subversion of the intent and agreement of the parties but after all Acts are made in performance of the originall contract and agreement of the parties the Law shall adjudge upon all as done at one and the same time So if a man make a Charter of Feoffment with warranty and deliver the Deed to the Feoffee and after at another time make livery secundum formam chartae yet the Warranty is good and yet it may be objected that when the Deed was delivered no estate passed to which the warranty may be annexed nor no estate was in the Feoffee by which the Deed might enure and so by nice construction upon the distinction of time the warranty shall be subverted but the Deed which comprehended the warranty took effect presently by the delivery of the Deed before livery and seisin and therefore the sentence is true that who do seek reason in all things subvert reason ibidem SECT II. A Verbis legis non est recedendum Coke l. 5. f. 118. b. we ought not to go from the words of the Law Edriches casc A. deviseth rent with distress to B. for the life of C. the heire leaseth the land for life to D. the remainder to E. in see the rent is behind in the life of D. D. dieth C. dieth B. distraineth for the arrearages of E. in remainder and resolved that he shall be charged by the second branch of 32 H. 8. c. 37. which giveth a distress for the arrearages upon such lands out of which the said rents were issuing in such manner and form as if Cestuy que vie had been living And the Judges said that they ought not to make any interpretation against the express letter of the statute for nothing can so express the intent of the makers of the act as their direct words themselves for Index animi seâ—mo and it shall be perilous to give scope to make construction in any case against the express words when the intent of the makers appeareth not to the contrary and when no inconvenience upon it shall arise for we ought not to go from the words of the Law vide ibidem plura Coke l. 10 f. 105. a. b. If in an Assise so many of the Recognitors make default that there be not twelve the Justices of Assise cannot award Tales de circumstantibus for though the Justices of Assise are named in the said Act of 35 H. 8. as well as the Justices of Nisi prius yet insomuch as the said Act doth not give power to Justices of Assise or Nisi prius but where the tryall shall be by twelve men in any Writ of Habeas Corpora or Distringas with Nisi prius and it cannot be in an Assise for Assisae capiamur in proprio Comitatu and can never be taken by Nisi prius in proprio commitatu and no exposition can be made against the express words for that shall be viperina expositio quae
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
a fine with proclamations now by the present right he hath five years by the first favant and if after these five years A. doth dye he shall have other five years for the next remainder by the second savant which giveth them as to other persons which have a future right and if after those five yeares B. doth dye he shall have other five years by the other remainder for saith he it is the text of the civil Law when two rights meet together in one person it is all one as if they were in severall persons Ployd ibidem vide ibidem plura in the Lord Zouches case Exception Coke l. 7. Calvins case f. 14. b. This rule holdeth not in personall things that is when two persons are necessarily and inevitably required by Law as in the ease of an alien borne there is for in the case of an alien borne you must of necessity have two severall legiaries to two severall persons and no man will say that now the King of England may make a League with the King of Scotland and that because in the Kings person there concur two distinct Kingdomes it is all one as if they were in severall persons vide ibidem f. 2. Coke l. 4. f. 118. a. Though a Bishop when he is translated to an Arch-Bishoprick or a Baron be created an Earle now he hath both those dignities and as it is commonly sayd when two rights concurr in one person it is all one as if they were in severall persons yet the Act of 21 H. 8. was alwayes construed strictly against Non-residence and Pluralities as a thing much prejudiciall to the service of God and the instruction of his people and therefore within that Act an Arch-Bishop shall have no more Chaplaines then as an Arch-bishop or an Earle then as an Earle for though they have diverse dignities yet is it but one and the same person to whom the attendance and service shall be made and if a Baron be made Knight of the Garter or Warden of the Cinque Ports he shall have but three Chaplaines in all Et sic de similibus quia difficile est ut unus homo vicem duorum sustineat because it is an hard thing for one man to undergoe or sustaine the Place and Office of two persons Coke l. 4. In the case of the death of one within the Verge the Coroner of the houshold of the King and the Coroner of the County shall joyne in the Inquiry and if one be Coroner of both he shall well execute this authority Quilibet potest renunciare juri pro se introducto Coke Comment f. 99. a. Every man may renounce or refuse a Law made or brought in for himselfe as a man seised of lands may at this day give the same to a Parson Bishop c. and their successors in frank-almoigne by the consent of the King and the Lords mediate and immediate of whom the Land is holden for every one may renounce a Law brought in for himselfe and f. 223. b. The Statute of 32. H. 8. giveth power to tenant in tail to make a lease for three lives or twenty one years yet if a man make a gift in tail upon condition that he shall not make a lease for three lives or twenty one years the condition is good for the Statute doth give him power to make such leases which may be restrained by condition and by his own agreement for this power is not incident to the estate but given to him collaterally by the act according to that rule in Law Quilibet potest c. Coke l. 10. f. 101. a. In the Act of 23. H. 6. c. 10. the words upon reasonable sureties of sufficient persons are added for the security of the Sheriff and therefore if he will take but one surety be it at his perill for he shall be amerced if the Defendant appeareth not and for it the Statute doth not make the obligation void in such case for the said branch which prescribeth the forme requireth that the obligation shall be made to the Sheriff himselfe c. by the name of their office and that the prisoners shall appeare in which clause no mention is made of the sureties so as the intent of the Act was that for that it was at the perill of the Sheriff to leave it to his discretion to take one or more for his indemnity and peradventure it may be better for him sometimes to take one that is sufficient then two others and though the sureties or surety have not sufficient within the same County as the Statute mentioneth yet the obligation is good enough for those words of the Act as to that point are more for counsell and direction of the Sheriff then for precept and constraint to him and that for the safety of the Sheriff for if the Defendant cannot find two sufficient sureties having sufficient within the same County the Sheriff is not bound to let him to bail and this resolution agreeth with the ancient rule to wit Quilibet potest c. An Orphant in London exhibited a bill in the Court of request against another for discovery of part of his estate Phesant prayed a prohibition upon the custome of London but it was resolved that he might sue in what Court he would and wave his priviledge there 19. C. B. R. But this case extendeth not to any thing that is against the Common-wealth or common right Coke com f. 166. a. Summum jus summa injuria Ployd 160. b. The rigor of the Law is the extremity of injury if a man make a lease of a messuage so as he may make his profit of his houses there within he cannot abate the houses or make wast of them by the opinion of the book H. 17. E. 3. f. 7. for the intent was not such though that the words seem otherwise and sayd to pursue the words is Summum jus which the Judges ought not to doe but ought rather to pursue the intent And for the same reason the Executors of Tenant for life shall have reasonable time to remove his goods after his decease and a man shall have reasonable time wherein he shall purchase a Writ of Journys accompt Finch Nomot Jus descendit non terra 20 H. 6. 5. The right descended and not the land and Coke Inst f. 345. a. b. There is a right which includeth an estate in esse in Conveyances which he in reversion and remainder hath and hath jus in re and may be granted to a stranger with attornement or released to him in possession as if Tenant in fee-sample maketh a Lease for yeares and releaseth all his right in the Land to the Lessee and his heires the whole estate in Fee-simple passeth and also the release to him in possession with the reservation of a rent is good and there is another right which is called a bare meere and naked right and jus adrem when an estate is turned to a right