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
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
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
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
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
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
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
est haeres viventis and the remainder is onely good upon this contingent if I. S. dieth during the life of the lessor Coke com f. 378. a. But if lands be given to A. and B. so long as they joyntly together live the remainder to the right heires of him which dieth first and warranteth the land in forma praedicta A. dieth his heire shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heire of A. have the land by descent vide ibidem 378. b. Justum non est aliquem ante natum mortuum facere Bastardum qui toto tempore suo pro legitimo habebatur Coke l. 8. f. 101. a. b. It is not just to make any one a Bastard borne before marriage being dead who all his life time was accounted legitimate For by the law of England if such a Bastard which the law termeth Bastard eigne doth continue possession in peace that is if the mulier make no entry for the Bastard eigne or continuall claime and so dieth in peace his issue is become right heire and will bar the mulier because he was legitimate by the lawes of the holy Church For though the subsequent marriage doth not make a Bastard legitimate quoad consuetudinem regni as â—ract phraseth it in regard of the custome of the Realme yet quoad sacerdotium in respect of the Canon law it doth and in this case of legitimation which in law is so precious and of so great estimation the law respecteth neither infancy or other defects in the mulier but preferreth legitimation of blood before any benefit of temporall inheritance and therfore the law saith that by the death of Bastard eigne in peace his issue is become right heire and by consequence the mulier is barred and the descent doth not onely take away the entry but the right also and therefore descent in this case shall be a bar to right as descent of services rents reversions expectant upon an estate taile shall bar the right of the mulier 14. E. 2. Bastardy 26. but not the entry or claime of the disseisee But if a Bastard eigne dieth without issue so as the land doth descend the mulier shall have it ibidem and if the Lord by escheat entreth this shall not bar the mulier because no descent Coke com 244. If there be Bastard eigne and mulier puisne and the father maketh lease for life reserving rent and the bastard eigne receiveth the rent and dieth having issue this shall barr the mulier Coke com f. 15. a. If a man hath issue a son being a Bastard eigne and a daughter and the daughter is married the father dieth and the son entreth and dieth seised this shall barre the feme covert and the descent in this case of services rents reversions expectant upon estate or for life whereupon rents are reserved c. shall bind the right of the mulier but the descent of these shall not bind them that right have to an Action Coke com f. 244. a. So if the Bastard dieth seised and his issue endoweth the wife of the Bastard the mulier cannot enter upon tenant in dower for his right was barred by the descent ibidem If the Bastard eigne entreth into land and hath issue and entreth into religion this descent shall bar the right of the mulier ibidem If a man hath issue two daughters the eldest being Bastard eigne and they enter and occupy peaceably as heires the law shall not adjudge the whole possession in the mulier so as if the Bastard had issue and died her issue shall inherit and if they make partition that partition shall binde the issue for ever Coke com 244. a. b. And such a Bastard being impleaded or vouched shall have his age If a man hath issue a Bastard eigne or mulier puisne and the Bastard in the life of the father hath issue and dieth and then the father dieth seised and the son of the Bastard entreth as heire to his Grand-father and dieth seised this descent shall bind the mulier ibidem b. If the Bastard enter and the mulier dyeth his wife being privement with a Son and the Bastard hath issue and dyeth seised the Son is borne his right is bound for ever but if the Bastard dyeth seised his wife enseint with a Son the mulier entreth and the Son is borne the issue of the Bastard is barred ibidem 244. a. If the bastard eigne entreth and the King seiseth the Land for some contempt committed by the Bastard for which the King receiveth the profits of the Land and the Bastard dyeth and his issue upon petition is restored to the possession the mulier barred for ever But when the King seiseth for a contempt of the Father c. if the issue of the Bastard eigne upon petition be restored for that the seisure was without cause the mulier is not barred for the Bastard could never enter but the possession of the King in that case shall be adjudged in the right of the mulier Coke ibidem f. 245. b. Bastardus nullius est filius Littleton Coke com f. 203. a. aut filius populi Coke l. 6. f. 6. A bastard is the Son of none or the Son of the people according to the common report Cui pater est populus pater est fibi nullus omnis Cui pater est populus non habet ille patrem To whom the people Father is to him is Father none and all To whom the people Father is well Fatherlesse we may him call For as the civilians pater est quem nuptiae demonstrant he is a Father whom the espousalls and nuptialls shew so to be And therefore if a wife have a bastard it shall not be a villaine or if a villaine have a bastard by a woman and marrieth her the bastard is no villaine because he is nullius filius though some hold the contrary as Bracton and Britton for in both cases the issue at the common Law is a bastard quasi nullius filius Coke com f. 123. a. And though a bastard be a reputed Son yet is he not such a Son in consideration whereof an use may be raised because in judgement of Law he is nullius filius Dyer 374. And for the same reason where the Statute of 32. H. 8. of wills speaketh of children bastard children are not within that statute and a bastard of a woman is no child within that Statute where the mother conveyeth Lands unto him Dyer 313. Qui ex damnato coitu oriuntur inter filios non computantur Coke com f. 3. b. Who are borne of condemned or unlawfull copulation are not to be reckoned among children as a man maketh a lease to B. for life the remainder to the issue male of B. and the heires males of his body B. hath issue a bastard Son he shall not take the remainder because
in Law he is no issue for he that is born of unlawful copulation is not to be accounted among children so it is if a man make a lease for life to B. the remainder to the eldest issue male of B. to be begotten of Jane S. whether the same be legitimate or not legitimate B. hath issue a bastard on the body of Jane S. this Son or issue shall not take the remainder because he is no issue ibidem and for the same cause if after the birth of the issue B. had married I. S. so as he became bastard eigne and had a possibility to inherit yet he shall not take the Remainder Ibidem And though a bastard having gotten a name by reputation may purchase by his reputed and known name to him and his heires yet he can have no heir but of his body and if he hath no issue the Land shall escheate if he purchase any Finch Nomot f. 130. The Pope Emperor and Prince himselfe cannot legitimate a bastard to enjoy any benefit of our Law the Parliament hath onely that power Com. of England f. 242. And it is related by Bodin l. 2. de repub That one Ieane Navarre calling himselfe Count Palatine by virtue of the power he said he had of the Pope made many bastards of France legitimate for which he was condemned by arrest of Parliament as laesae majestatis reus wherein their Law seemeth to accord with ours for it is onely in the power of the King and Parliament to make a bastard legitimate but the King may dispense with a bastard to be a Preist Davis Reports f. 37. a. The civill Law depriveth the adulterous issue of all benefit the Ecclesiasticall Law alloweth things needfull for sustentation but by the Laws of this Realme one may give or devise all to a bastard Swinborne testaments f. 230. And by our Law if a grant be made to a bastard by the name of him who is supposed to engender him it is good if he be known by that name so if a remainder be limited to Richard the Son of Richard Marwood it is good although he be a bastard so in case of purchase a bastard eigne in respect of the subsequent marriage is capable of his reputed Fathers guifts for though by the civill Law his right of Primogeniture is remitted by the subsequent marriage according to the rule subsequens matrimonium tollit peccatum praecedens yet by the common Law he is in it rejected and hee made uncapable of any inheritance by descent though in case of purchase it may be sufficient as 39 E. 3. Richard Thompson having issue by one Ioane before marriage one Agnes and after inter-married with Ioane and made a Feoffment in fee and re-taked the estate unto himselfe for life the remainder to Agnes the Daughter of the said Richard and Ioane and agreed that it was a good remainder without any averrement that shee was known to be their Daughter but it was there objected that a bastard is not their Daughter in Law and therfore the remainder void but Finch den gave the rule and said it is found that the Daughter was borne before the espousalls so that by their espousalls after shee is their Daughter so as though by the common Law shee was not their Daughter yet in so much that she hath colour by the Ecclesiasticall Law which saith that subsequens matrimonium tollit peccatum praecedena it is sufficient in case of conveyance to make the remainder good Coke l. 6. f. 65. a. vide ibidem plura Dominum a possessione cepissi dicitur Reg. I. C. paulus Dominion is said to have his begining from possession and that jure naturali for we gaine Dominion of some things by the Law of nature that is as Cicero hath it veteri occupatione ut qui quondam in vacua venerunt by long occupation and possession of those things into which being void we have entred which no man can take from us but by injury and therefore doe the Civilians derive possession a pedum possessione from the fixing our feete upon any particular thing and by long possession is turned into right longa enim possessio est pacis jus Bracton f. 50. Long possession is the right of peace And therefore in the case of a Charter of Feoffment if all the witnesses to the Deed be dead as no man can keepe his witnesses alive and time weareth all things then violent presumption which standeth for a truth is continuall and quiet possession for ex d uturnitate temporis omnia praesumantur solenmiter esse acta Glanvill for by long continuance of time all things are presumed to be solemnely acted Coke com f. 6. b. And therupon Bracton giveth the rule Longum tempus longus usus quiexcedit memoriam hominum sufficit pro jure Long possession long occupation which doth exceed the memory of man sufficeth for a right l. 4. f. 230. But what measure of time maketh such a right by which a Fee-simple may be attainted diverse have differed in opinions some judging the same to be according to the computation of years from the time of King Henry the first to the Statute of Merton which amounteth to seventy six yeares and others have limited it to an hundred years which according to the civil law is longissimum vitae hominum tempus the longest time of the life of men but the true measure of it according to Mr. Littleton is where things have been used so long as the memory of man cannot remember the contrary that is either by the knowledge and memory of proofe or by record or sufficient matter in writing so as if there be any sufficient proofe of record or writing to the contrary albeit it exceedeth the memory or knowledge of any man living yet is it within the memory of man Coke com 115. a. And as by the course of nature time is the measure and consumer of all things Nullaque res majus tempore rebor habet There nothing is which hath more strength then time So doth Art and Law imitate nature which giveth unto it such power and authority as to change to raise to alter and to establish titles wherein the Civill and the common Law do square for by the civill Law there is required a just title bona fides and continuall possession to make a title of prescription but the common Law onely requireth continuall possession and that naturalis possessio ad praescriptionem sufficit naturall possession sufficeth for a prescription As if a man prescribe to have a rent and likewise to distraine for the same it cannot be avoided by pleading that the rent hath allwayes been paid by coertion or that it began by wrong Coke com 114. a. So Jeptha pleaded prescription against the Ammonites these Lands saith he have we possessed these 700. yeares And the reason why this long usage and prescription was brought in to be of the force and strength to make a right
enrolled enfeoff the King without any consideration the King shall be seised to his owne use as having such prerogative in his person that he shall not be seised to the use of any other 28. H. 8. 7. Dier Bokenghams case by Knightley Cok l. 2. f. 71. b. It is not unjust but equall that the bargain or shall annex such a condition to the State of the land as he pleaseth for cujus est dare ejus est disponere he that hath power to give hath power to dispose ibidem Coke l. 7. f. 6. Calvins case The King by his letters patents or the Parliament by thier votes may grant denizations without limitations or restraint or else limited denizations as to an alien and the heires males of his body 9. E. 4. f. 7. in Bagots case or to an alien for terme of life as to John Fenell 11. H. 6. 3. Or else upon condition whereof I have seen diverse presidents for who hath power to give hath power to dispose ibid. Modus dat domationi Fleta Ployd f. 25. a. The mannor of the gift which the donor limiteth maketh a law to the donee for though in the preamble of the Act of W. 2. there be but three estates limited to wit especiall taile franke-marriage and generall taile yet may the donor make other tailes by his limitation for his will is a law as to the taile and so heires males of the body of the donee and taile to the heires females of the body of the Donee and all other tailes are within the purview of the Act for the will of the donor is the effect of the stature and from it it followeth that the alienation of the donee shall not bind the issues nor the donor And the second wife shall not be endowed neither can the donee charge the land with a rent-charge or other encumbrance neither shall the land be forfeited for felony and all these are included in the first purview to wit that the will of the donor shall be observed and are but consequences and explanations of the first purview vide ibidem plura But if a gift bee repugnant or contrary to law Exception as a gift made upon a condition unlawfull or impossible it is void and of no effect to gain any thing by the making of it in our law As if the condition be to kill a man Ployd f. 34. b. Or if an obligation be made to save one harmeless for killing a man Ibid. f 64. b. these conditions are void So a feoffment made that the feoffee shall not alien the land is void because it is contrary to law for by the law tenant in fee-simple hath power to alien to any man for if such a condition should be good then the condition should oust him of all the power that the law hath given him which is contrary to reason Littleton The like law is upon a devise in fee upon condition that the devisee shall not alien the condition is void And so it is of a grant release or confirmation or any other conveyance whereby a fee-simple doth pass for it is absurd and repugnant to reason that he that hath no possibility to have the land revert to him should restrain his feoffee in fee-simple of all his power to alien And so it is if a man be possessed of a lease for yeares or of an horse or of any other Chattells reall or personall or give or sell his whole interest or property therein upon condition that the Donee or Vendee shall not alien the same the same is void because his whole interest and property is out of him so as hee hath no possibility of a reverter and it is against trade and traffick and bargaining and contracting betweene man and man and against reason that he should oust him of all power given him for regulariter non valei pactum de re mea non alienda a contract or condition that I shall not alien that which is my owne doth not hold and suiquum est liberis hominibus non esse liberam rerum suarum alienationem it is unjust that freemen should not have liberty to alien their owne estates But these are to be understood of conditions annexed to the grant or sale it selfe in respect of the repugnancy and not to any other collaterall thing Coke com f. 223. a. But before the statute of quia emptores terrarum A man might have made a feoffment in fee and added further that if he and his heires did alien without licence that he should pay a fine it had beene good then and then the Lord also might have restrained the alienation of the tenant by condition because the Lord had a possibility of reverter and so it is in the Kings case at this day because he may reserve a tenure to himselfe If A. be seised of black Acre in fee and B. enfeoffeth him of white Acre upon condition that A. shall not alien black Acre the condition is good for the condition is annexed to other land and ousteth not the feoffee of his power to alien the land whereof the feoffment is made and so no repugnancy to the State passed by the feoffment and so it is of gifts or sales of Chattels realls or personalls Coke ibidem But if a feoffment be made upon condition that the feoffee shall not infeoff I. S. c. This is good for he doth not restrain the feoffee of all his power and in this case if the feoffee infeoff I. N. of intent and purpose that he shall infeoff I. S. some hold that this is a breach of the condition for Quando aliquid prohibetur fieri ex directo prohibetur per obliquum for when any thing is forbidden to be done directly it is also forbidden to be done collaterally or obliquely Coke ibidem b. And a gift in taile that is made upon condition that the donee nor his heires shall not alien in fee in taile or for terme of anothers life is good to all those alienations which amount to any discontinuance of the estate taile or is against the statute of W. 2. but as to a recovery the condition is void for that is no discontinuance nor against the said statute Neither is a collaterall warranty or lineall with assets in respect of the recompence restrained by the said statute no more then a common recovery is in respect of the intended recompence Ibidem If a man make a feoffment to Baron and feme in fee upon condition they shall not alien this is good to restraine them by feoffment or alienation by deed because it is tortious but to restraine their alienation by fine is repugnant void because lawfull ibidem Voluntas reputabitur pro facto Bract. the will shall be esteemed for the deed If no place be limited where money is to be paid in the condition of a Bond and the Obligor at or after the day of payment happen in the company of the obligee and offereth
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
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
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
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 a Grant be good in parcels and for parcels not that which is for the advantage of the Grantee shall be taken to be good As if a man granteth unto me an annuity provided that it shall not charge his person the Proviso is void and the Grant good 20 E. 4 8. by Townsend 14 H. 4. 30. by Hank And if an annuity be granted pro consilio impendendo though the Grantee be well skilled in divers professions of art yet counsell shall be given in that faculty onely which was intended at the time of the Grant 4. 1. E. 3. 6. If the King grant to a man that he and his Heirs shall be quit of Tax for the lands which they have this is a good Grant though there be no Tax at the time of the Grant 38 H. 6. 10. And so is the Law of Tenths and fifteens ibidem Ployd f. 29. a. If a man maketh a Lease for life and after the decease of Tenant for life that the lands redibus to A. B. in fee it is held a good remainder because it is held for a principle that the Livery of every one shall be taken more strong against him 18 E. 3. f. 28. If a man give land to one haeredibus it shall be a Fee-simple without the word suis and though he doth not give him a Fee-simple expresly yet every mans livery shal be taken strongest against him Ployd f. 18 b.a. If I make a lease for years upon condition that one moneth after he shall have fee he shall have it after the moneth accordingly for the thing shall pass according to the convention more strong against the Donor Ployd ibidem So if I make a lease to two upon condition that if one doth dye within seven years that then after the death of the other it shall remain to a stranger in fee that remainder is good for the reason of the condition to give the estate to privies or strangers is all one in regard that he had first given an estate to which the condition may be annexed for the livery and limitation shall be taken strongest against him that made it ibidem If I give land to one filio suo primogenito and he hath no Son at the time of the gift and after he hath a Son that son shall have the land by way of remainder and yet the remainder was not out of the Lessor neither did it vest at the time of livery but the Law construeth the livery and limitation more strong against the Lessor P. 17 E. 3. f. 29. Ployd vide ibidem plura If two Tenants in Common grant a rent of ten shillings this is severall and the Grantees shall have twenty shillings But if they make a Lease and reserve ten shillings they shall have onely ten shillings between them So an Obligation to pay ten shillings at the feast of our Lord God it is no plea to say that he did pay it but he must shew at what time or else it will be taken that he paid it after the feast for every act shall be taken more strictly against him that made it Noy Max. f. 15. 2 E. 3. p. M f. 140 b. 161. b. A generall pardon ought to be taken more beneficially for the Subject against the King 37 H. 8. f. 21. Coke l. 4. Vaughans case If I. S. submit himselfe to arbitrement of all Actions and Suites between him and I D. and I. N. it shall be intended collective of joynt Actions and distributive of severall Actions also because the words shall be taken stronger against him that speaketh 2. R. 3. 18. 21. H. 7. 29. If I grant 10 l. rent to Baron and Feme and if the Baron dye the Feme shall have three pound rent it shall be strongest taken against me the grantor for three pounds addition to the ten 8. Ass Pl. 10. So if I sow all my Land with Corne and let it for yeares the Corne passeth to the Lessee if I except it not So if I have a free Warren in my owne Land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren discharged and extracted during the Lease 8. A. 7 32. H. 6. If I. give Lands to I. S. and his heires males this is a good Fee-simple and the words males is void Bac. Max. f. 12. vide ibidem plura Yet this rule also faileth when another which the Law holdeth worthier cometh in place and which is of more equity and humanity It is a rule in the Civill Law valeant eo modo quo valere possunt and at the Common Law Benignae faciendae sunt interpretationes chartarum propter simplicitatem laicorum ut res magis valeat quam pereat Coke com f. 30 b. The interpretations of Deeds and charters because of the simplicity of the people are favorably to be made that the thing may rather stand and subsist then fall and perish and let all things stand by the same meanes they may stand And therefore if I give Lands to I. S. and his heires rendring five pounds yearly to I. D. and his heires this implyeth a condition to me that am the grantor Littleton yet were it a stronger exposition against me to say that the limitation shall be void and the Feoffment absolute So if a man make a lease to A. for yeares and after by his Deed the Lessor voluit quod haberet teneret terram pro termino vitae willeth that he should have and hold the Land for terme of his life this is adjudged by the word volo to be a good confirmation for life Coke com f. 301. b. Though it were stronger to say those words are void because they are not proper words of confirmation So if the Disseisor granteth a rent to the Disseisee and he by his Deed granteth it over and after doth re-enter in this case one and the same words doe amount to a grant and a confirmation So if the Disseisor maketh a Lease for life or in taile the remainder to the Disseisse in fee and the Disseissor by his Deed granteth over the remainder and the particular tenant atturneth the Disseissee shall not enter upon the tenant for life or in taile for then he should avoid his own grant which amounteth to a grant of the estates and a confirmation also ne pereat Coke ibidem 302. So if A enfeoffeth another upon condition that he and his heires shall render to a stranger and his heires a yearely rent of twenty shillings although this reservation be meerly void for that no estate moveth from the stranger and that he is not party to the Deed and therefore can be no rent yet shall it be taken for a penalty or for an annuall summ in grosse so as if they will not pay it according to the forme of the Indenture they shall loose the Land by the entry of the Feoffor and his heires which is to be observed that
words in a condition shal be taken out of their proper sense ut res magis valeat quam pereat Coke com 213. a. If one giveth Lands to two and the heires of their two bodies ingendred the Donees have joynt estates for life and severall inheritances for if one of the Donees hath issue and dyeth the other shall have all by survivor during his life but if the Survivor hath issue and dyeth then the issue of the one shall have the one moiety and the issue of the other the other moiety of the Land and shall hold the Land together in common and the cause why they shall have severall inheritances is for that they cannot by any possibility have an heire between them engendred and when the grant is impossible to take effect by the letter there the Law shall-make such constâ—uction as the guift by possibility may take effect Co. 83. b. If Lessor of an house for twenty yeares maketh a Lease for two yeares rendring rent and after granteth all his terme and interest to another if the Lessee atturne the Reversion shall passe and if no Atturnement be had yet the ieterest in the Reversion shall passe so as the Grantee shall have the Land after the two yeares determined for the grant of one shall not be adjudged void if to any intent it may take effect Coke l. 4. f. 53. b. If a Termor grant his Terme Habendum immediate post mortem suam the Grantee shall have it presently ut res magis valeat quam periat Noy Max. f. 16. So if a man make a Lease for ten yeares and after for twenty yeares the latter shall be a good Lease for ten yeares after the first is expired Ibidem A release of all Actions against a Prior and Covent shall be construed all Actions against the Prior for an Action cannot be brought against the Covent Coke l. 1. f. 76. Gardiner and Bredons case Tenant for life of Land the Remainder in taile Tenant for life and he in the first Remainder in taile joyne in a fine sur conusans de droite come ceo c. to another in fee who granted a Rent charge of forty pounds to tenant for life it was agreed by all the Justices that the fine levied by tenant for life him in the first Remainder was no discontinuance of the first Remainder in taile nor of the second because every of them did only give that they may lawfully give and no forfeiture in the case be cause the law which abhorreth all wrong shal conster it first to be the grant of him in the Remainder in taile and then the grant of Tenant for life ut res magis valeat quam pereat but if a Feoffment had been made by word then it is the surrender of Tenant for life and the Feoffment of him in the Remainder Ibidem Coke l. 1. f. 45 a. In 2. R. 3. 4. it is holden by Starky and others that if the Patent of the King may be taken to two intents good then it shall be taken more beneficially for the King but if it may be taken to one intent good and to another intent void then it shall be taken to that intent to make the grant good and not to that intent to make it void ut res magis valeat c. vide ibidem plura in Alton Woods case Coke l. 5. f. 8. a. In Cessavit where the Tenure is alledged by Homage Fealty and Rent and the Demandant counteth that in doing the said services he did cease it shall be taken by construction to such services onely of which a man may cease 6. H. 7. 7. as of Rent and not of Homage and Fealty and the reason of this is ne res destruatur least the thing should perish vide ibidem plura Ployd f. 197. b. Anthony Browne Justice said that it is an office of a Judge to expound the thing ut res magis valeat quam pereat and to make all parts of the Deed and intention of the parties also to agree together Coke l. 4. f. 4. If I grant to you that you and your heires shall distraine for a rent of forty shillings to wit within my Mannor of S. that by construction of Law shall amount to a grant of a Rent out of my Mannor of S. for if it shall not amount to a grant of a rent the grant would be of little force or effect if the Grantee shall not have but a nude distresse and no rent in him for then he shall never have an Assize of it and for that reason it hath been often times ruled that it shall amount to the grant of a Rent by construction of Law ut res magis valeat 3. E. 3. 12. c. Benedicta est expositio quando res redimitur a destructione Coke l. 4. f. 25. b. Blessed is the exposition when the thing is redeemed from destruction every Mannor which consisteth of Frank-tenements and Copy-holders hath two severall Courts the Court of Frank-tenements wherein the Suitors are Judges and is called the Court Baron and the Court of Copy-holders wherein the Lord or Steward of the Mannor are Judges and if all the Tenements escheate or the Lord release the tenure and service of his Frank-tenements yet the Lord may hold his Court of Copy-holds and make admittance and grant of them ne res destruatur it is a ground in Law verba debent intelligi ut aliquid operetur Coke l. 8. f. 24 words must so be understood that they must worke some thing and not be idle and frivolous in Edward Foxes case wherein it was resolved that a demise and grant upon consideration of fifty pound for ninty nine yeares amounted to a bargaine and sale for the said yeares for when a Frank tenement or tenement passeth by Deed indented and inrolled it is not necessary to have those precise words of bargaine and sale but words which amount to so much are sufficient as if a man covenant in consideration of mony to stand seised to the use of his Son in fee if the Deed be enrolled it is a good bargaine and sale and yet there are no words of a bargaine and sale but amount to as much Coke l. 7. f. 40. So if a man for mony alien and grant Land to one and his heires or in tail or for life by Deed indented and enrolled it shall amount to a bargaine and sale and the Land shall passe without any livery and seisin It is a ground in Law verba sunt accipienda cum effectu Coke l. 4. f. 51. a. b. Words are to be taken with effect as if a man hath in the right of his wife any estate in Fee-simple Fee-taile or for terme of life c. the Baron shall have all the arrerages as well before marriage as after the death of his wife by the Statute of 10. H. 6. 11. for though by the Common Law the Executors c. of the wife might have an Action
the day of payment make his Executors and 〈…〉 dye and the heire enter into the Land as he ought c. the Feoffor ought to pay the monies to the Executor because the Executors as he saith l. 5. f. 99. a. represent the person of the Testator for all Goods and Chattels but if the condition upon the Mortgage be to pay the Mortgagee or his heires the mony c. and before the day of payment the Mortgagee dyeth the Feoffor cannot pay the mony to the Mortgagee but the payment ought to be made to the heire for expressum c. and the Law shall never seek out a person when the parties themselves have appointed one for designatio unius est exclusio alterius the appointment of one is the exclusion of the other But if the condition be to pay the mony to the Feoffee his Heires or Executors then the Feoffor hath election to pay it either to the Heire or Executor Coke com ibidem It is a sure ground in the Law expressum facit cessare tacitum Davis 45. in the case of Tenures and therefore the expresse reservation in Letters Patents excluded the reservations and implication in Law as if the King in his Letters Patents reserveth no tenure it shall be a capite tenure but if another tenure be expressed that shall prevaile as Coke l. 6. f. 6. where in a Patent the words of the Tenendum were Tenendum de nobis per servittum unius rosae pro omnibus servitij and wheras it was objected that no tenure can be without fealty yet in this case fealty that is an incident to all services shall be admitted to stand with the words and that then the tenure so expresly reserved was so compleate that it might well exclude the Knights service tenure which otherwise the Law would have implyed Davis Ibidem where it was also resolved that although the expresse tenure be void yet no tenure by implication of Law shall arise against the expresse tenure of reservation And so in the case of a void Habendum which standeth upon the same reason it was adjudged in B.R. between Higs and Crosse 33 and 34 Eliz. which in Bucklers case is cited by Coke l. 2. f. 55. Tenant for life maketh a Lease for years and after granteth the reversion to A. Habendum from a day to come for life after the day the Lessor for years atturneth in that case the Habendum is void and that void Habendum maketh void the whole Grant and excluded the implication of Law in the Premisses and no Estate shall pass by implication of Law in the Premisses against the express limitation of the partie in the Habendum Davis ibidem A man maketh a Lease rendring rent and doth not say to whom the rent shall be paid this by implication shall be to the Lessor and his Heirs But if the words be to the Lessor the Heir shall not have it Dyer 45. 12 Eliz. 3. c. So as an Estate by implication shall be controlled by an express limitation But if I grant to another a rent which I have in fee the grant shall be for life but if I say further Habendum after the death of I. S. there all shall be void Ployd 52.156 So if the King granteth lands by Letters Patens Habendum from a day to come there the whole grant is made void by the Habendum coke l. 5. f. 93. Barwicks case He in the reversion for life gtanteth his Estate Habendum after Michaelmas and after Michaelmas the Tenant attornes yet resolved the grant is void though if there had been no Habendum it had been good by the Premisses of the Deed coke f. 2. c. 55. Davis f. 26.27 Coke l. 7 f. 41. b If the Father by Deed indented in consideration of a hundred pounds paid by his son covenanteth to be seised to the use of his son there no use shall be raised to the son if the Deed be enrolled by the statute of 26 H 8. c. 10. for that it is in the nature of a bargain and sale and that which is expressed shall cause that which is implied to cease ibid. Coke l. 4. f. 8. a. in Nokes case It was resolved by the whole Court that an express Covenant doth qualifie the generality of the Covenant in Law and restraineth it by the mutuall assent of both parties which shall extend to no further then the express Covenant Quia clausula generalis non refertur ad expressa because a generall clause implyed in Law hath no reference to an express and particular Covenant in deed Yet Quadam tacita habentur pro expressis As if the Father Tenant by Knights-service enfeoff his son and heir within age it is not necessary to aver by collusion for it is apparant Ployd Winbichs case and 27 H. 8. Dacres case 33 H. 6. 14 c. So if I covenant to stand seised to the use of my Wife Son or Cosin that shall well raise a use without any express words of consideration for sufficient consideration appeareth because paternall love and affection appear If in a Lease the express Covenant is that the Lessee and his Executors shall repaire the house demised This shall not excuse the Assignee who by an implyed Covenant in Law adherent to the Estate is tied to repair it Coke l. A Warranty in Law is not distroyed by an express Warranty as if a man lease for life rendring rent and further bindeth himself and heirs to Warranty there the express Warranty shall not take the Warranty in Law but he may choose which he pleaseth Coke l. 4. f. 81. a. vide ibidem plura Lex neminem cogit ad impossibilia Coke com f. 231. b. l. 5. f. 75. a. The Law compelleth no man to impossibility If a Deed remain in one Court it may be pleaded in another Court without shewing forth for the Law doth not compell any one to impossibilities ibidem If a Lease be made upon condition that the Lessee dwell upon the lands demised the lease being for forty years and he dieth at the end of ten years yet the Executor shall enjoy the land because the condition is become impossible Et nemo tenetur ad impossibilia Dod. No man is bound to impossibilities 37 38 Eliz. If a man make a Lease for years of woods and it is covenanted that the Lessee shall leave the woods in as good plight as it was at the time of the Lease made and during the term the woods fell down by suddain tempest the Lessor shall not have an action of Covenant because it is impossible the Lessee shall perform it Perk. f. 142. b. Coke l. 1. f. 98. a. Coke com f. 206. a. If the condition of a Bond be impossible at the time of making the Condition the Condition is void because impossible and the Bond good As if a man be bound in an Obligation c. with Condition that if the Obligor doth go from the Church of S. Peter
deteriorem nequaquam Cok. Com. 141. a. The Church exerciseth the Office of a minor can make its condition better but not worse for it is the cheifest reason which makes for Religion And therefore in all cases a Parson or Vicar of the Church for the benefit of the Church hath a qualified fee but in many cases to doe any thing to the prejudice of the Church he hath in effect but an estate for life As a Parson Vicar c. may have an action of Waste and in the Writ it shall be said ad exheredationem Ecclesiae So the Parson that maketh a Lease for Life shall have a consimili casu during the life of the Leasee and a Writ of Entry ad communem legem after or a Writ ad terminum qui preterijt or a quod permittat in the debet which no man can maintaine but Tenant in Fee-simple or Fee-tayle vide But a Parson cannot make a discontinuance for that should be to the prejudice of his Successor to take away his Entry and drive him to a reall action but if he dye the Successor may enter notwithstanding the discontinuance And if a Parson make a Lease for years reserving rent and dyeth the Lease is determined neither will the acceptance of the Successor make it good vide 5. Prelatus Ecclesiae suae conditionem meliorem facore potest sine consensu deteriorem vero nequaquam sine consensu Coke Com. fol. 103. a. As neither Bishop nor Parson cannot disclaim or devest any fee is invested in his house or Church But an Abbot or a Prior with his Covent or a Bishop with his Chapter or a Parson with his Patron and Ordinary may passe away any Inheritance for the wisdome of the Law would not trust one with the Inheritance of the Church which alwayes maketh for religion and the good of the Church 6. Dies dominicus non est dies juridicus Ployd 265. The Sabbath day is no day for Law As upon a Fine levyed by Proclamations according to the Statute of 4. H. 7. C. 24. If any of the Proclamations be made on the Sabbath day all the Proclamations be erronious for the Justices must not sit upon that day but it is a day exempted from such Businesses by the Common-Law for the Solempnity of it to the intent that the people may apply themselves that day to the service of God No Plea shall be holden Quindena Pasche because it is alwayes the Sabbath but shall be Crastino quindenae Pasch Fit Nat. fo 17. f. Upon a Scire facias out of the Common Bench an Error was assigned because the Teste of the Scire facias was upon a Sunday And it was adjudged Error because it was not Dies Juâ—idicus Dyer 168. No sale upon a Sunday shall be said to be sale in a Market overt to alter the property 12 E. 4 8. Although Sunday is not Dies Ju idicus and that no judiciall Act ought to be acted on that day yet ministeriall Acts as to arrest or serve Process are allowed for otherwise peradventure they should never be executed and God forbid that things of necessity should not be done on that day for bonum est bene facere die Sabathi but this distinction and exception is taken away by a late Act made in the long Parliament of England yet did that Parliament in case of necessity once sit upon the Lords day which is the high Court of Justice and from which there is no appeale By the Statute of Magna Charta Cap. 14. no spirituall Parson shall be amerced according to his spirituall benefice but according to his Lay fee Fitz. Nat. br f. 76. b. And that in favour of Religion 7. Omnia quae movent ad mortem sunt deod inda Coke l. 5. fol. 110. b. any unreasonable thing killing a man by misadventure is forfeited to the King and every thing moveing with it is forfeited also to the King As if a man being upon a Cart carrying Faggots and as he is in binding them together falleth downe by the motion of one of his Horses in the Cart and dyeth of that both that and all the Horses in the Cart and the Cart it selfe are forfeited 8. E. 2. 307. A man falleth from a stack of Corne and dyeth it is forfeited 2. E. 3 140. If any Horse strike one and I â—lien my Horse and he dyeth my Horse is forfeited because the forfeiture shall have relation to the stroke given Ployd 260. b. Kâ—llaway 68. b. but it is not forfeited untill the matter be found on record and therfore it cannot be by prescription and the Jurors that find the death must also finde and apprize the goods Coke l. 5. fol. 11. b. And therefore are they called Deodands quasi deodanda that is Elâ—emosynas eroganda to be disposed in Almes and workes of Charity 17. E 4. 2. and for that reason doth the King grant them to his Almoner to the intent they should be disposed of by him accordingly Actus dei nemini facit injuâ—iam Cok. Com fol. 148 So much is the reason of the Law ruled by Religion as it will not permit the Act of God to prejudice any one as if Tenant for another mans life granteth a Rent-charge to one for one and twenty years cesty que vie dyeth the Rent-charge is determined and yet the Grantee during the years may have a Writ of Annuity for the Arrearages incurred after the death of cesty que vie because it determined by the Act of God Cok. lâ—b 8. fol. 72. Hales Case An Office is found that the Heir is in ward who after he was of ful age tendreth his Livery and was admitted to it the Heir within three moneths which is the usuall time to sue out his Livery bargaineth part of his Lands by Deed inrolled and within the three moneths dyeth the bargaine was adjudged good and that the Heire should have no prejudice because the suing of his homage and suing out of his Livery without default in him was become impossible by the Act of God Impotentia excusat lâ—gem and is all one as if the King had taken the Homage of the Heire when the Heire made his tender vide ibidem pâ—uâ—a Coke lib. 8. fo 63 a. If an House fall by tempest or other Act of Gâ—d the Lessee for life or years hath a speciall interest to take Timber for the builâ—ing of the house againe if he will for his habitation but if he pull downe the house he shall not have Timber to builde it because it is his own Act and the Lessor shall have an Action of Waste Coke lib. 1. 98. a. If a Lessee Covenanteth to leave the Wood in as good plight as it was at the time of the Lease and after the Trees are subverted by Tempest he is dischar ed of his Covenant causa qua supra Cok. l. 5. fol. 86. a. Bâ—unfeilds Case If the Defendant in debt dyeth in Execution the Plaintiff shall have a new
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
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
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
incurreth for which day the husband maketh an acquittance supposing the receit of the rent for the said yeare last past and notwithstanding that acquittance his servant distraineth for the rent of half a yeare of the first year being behinde but though the last arrearages before the last terme were due to the feme dum sola fuit yet Harper and Dyer were of opinion that all the arrearages were discharged by the acquittance of the last terme because it is an antient principle That all the arrearages are discharged by the acquittance of the last terme and we ought not to deny principles Coke l. 10. f. 40. a. No man ought to dispute against recoveries the legall pillars of common assurances because we are not to dispute against principles and which St. Germins Doctor and Student c. 26. approveth to binde both in Law and conscience and by the Statute of 23. Eliz. C. 4. That for the avoyding of the dangers of assurances of Lands and the advancement of common recoveries it is provided that any common recovery shall not be avoided for any want of forme in words and not in matter of substance And Sir James Dyer then chiefe Justice did with great gravity and some bitternesse reprove an utter Barrister who rashly inveyed against common recoveries not knowing the reason and foundation of them and said that he was not worthy to be of the profession of the Law who durst speake against common recoveries which were the sinews of assurances and inheritances and founded upon great reason and authority Mary Portingtons Case vide ibidem â—lura Coke Com. f. 343. a. Principium est quasi primum caput a principle is as it were the first head from which many cases have their beginning which is so strong as it suffereth no contradiction and therefore is it said in our Books that ancient principles of the Law ought not to be disputed 11. H. 4. 9. 2. As that of every Land there is a fee-simple and that every Land in fee-simple may be charged in fee by one way or other Littleton ibidem Cessante statu primitivo cessat derivativus Coke l. 8. f. 34. a. The primitive state ceasing the derivative doth cease As if Tenant in taile maketh a lease for lives according to the Statute of 32. H. 8. c. 28. and then dyeth without issue the lease being derived out of the Estate taile shall not continue longer than the Estate taile against the opinion in 33. H. 8. 48. Dyer which was granted by the whole Court Derivativa potestas non potest esse major primitiva Noy max. f 4. A derivative power cannot be greater than it fâ—om which it is derived As the Attorny of one that is disseised cannot make claime of the Land it the disseisee durst have gone to the Land Littleton The Bayliff of a disseisor shall not say that the Plaintiff never had any thing in the Land for the Master himselfe shall not have that Plea because he is not Tenant of the Free-hold 28. Ass Pl. 4. The Servant shall be estopped to say the Free-hold is his Masters by recovery against his Master though the servant himselfe be a stranger to it for he shall not be in better condition tâ—an he whose right he claimeth 2. E. 4. 16. He that gaineth a thing on high shall neither have gaine nor losse thereby Noy Max. f. 11. As if one Joyn-tenant maketh a lease of his Joyntee and dyeth the heire which surviveth shall have the reversion of his Joynture but not the rent because he cometh in by the first Feoffor and not under his companion Dyer 187. So when the Husband is Lessee for years in the right of his wife reserving a rent if he dyeth the wife shall have the residue of the terme but not of the rent ibidem An executor recovereth and dieth intestate Administration of the goods of the Testator is committed to I. S. I. S. shall not sue execution upon this recovery Dower cannot be assigned reserving a rent or with a remainder over for shee is in from the husband and not from him who assigneth Dower Finch f. 13. Quod dignius est prius est minus digno The Law preferreth every thing according to its worthinesse Ployd f. 169. a. and therefore is every thing placed in Writs by the rule of the Register according to its dignity as the Messuage is placed before Lands the Land before Meadow and the Meadow before Pasture and the like and this dignity is taken from necessity for to have an house to inhabite and to defend his body from tempest and violence of weather is more necessary than to have Land to plow it for bread and also to have Land for bread is more necessary than to have Meadow for Hay to feed Cattell and likewise to have Meadow for Hay which will serve all the yeare is more necessary than Pasture c. ibidem And so in the Register the entire thing which is more worthy shall be demanded before the moyety part or parts As in a Replevin if it be of two beasts the one quick the other dead the living thing shall first be demanded Register Quod prius est verius est quod prius jure est potius est tempore Coke Com. f. 347. b. As in a remitter the Law preferreth the first and antient right before the latter and a sure right though it be little before a great estate by wrong which jumpeth with the rule of the Civill Law Quoties duplici jure defertur alicui successio repudiato novo jure quod ante defertur superest vetus Paulus 17. quest As if Tenant in taile discontinueth the taile and after disseiseth the discontinuee and so dyeth seised This is a remitter to the tenant in taile because the Law shall put and adjudge him to be in by force of the tayle which is his antient title for if he should be in by force of the descent then the discontinuee may have a writ of Entry sur disseissin in the per against him and recover the tenement and his damages but being in by force of the taile the title of the discontinuee is quite nullified Qualis causa talis effectus Ployd f. 292. a. Things are construed according to that which is the cause thereof as if an Executor assigne Auditors to one who was accountant to the Testator and the Auditors finde him in arrearages the Action of debt which the Executors shall have shall be in the detinet onely for the debt shall be in them as Executors and have respect to the foundation and cause 11. H. 6. f. 16. by Paston and Newton So if one have a villaine for years as Executor if the villaine purchase Land and the Executors enter the Land shall be to the use of the Testator and it shall be assets in his hands because the villain who was the cause of it was to that use Ibidem Pas 32. H. 8. E. villenage 146. Ployd f. 524. 525.
b. a. If Tenant for years of Land granteth a rent-charge to another for the life of the grantee the grantee shall not have an estate of Frank-tenement in the rent in that he cannot have an estate of Frank-tenement derived out of the Chattell reall but he shall have the rent during all the years though the Lessee had forty years in the Land for terme of life is greater then years and therefore the Grantee shall have all the rent for all the years if he shall live so long And f. 525. b. An Executor cannot devise a terme to another which he hath as Executor for so soone as the Executor is dead the terme is to the use of the first Testator and his Executors have it as Executors to the first Testator and to his use and not as Executors of the last Testator nor to his use for the Executors have them by relation as immediate Executors to the first Testator A. Covenanteth with B. and his Executors to make a lease of white acre before Michaelwas and the Covenantee dyeth before and A. maketh a lease to his Executor the lease shall be to the use of the Testator and assets in the Executor for the Covenant which was the cause of the Lease came to the Executor in right of the Testator and to the same use shall the lease be Ployd f. 292. a. Chap-mans case Cessante causa cessat effectus Ployd 268. Sir John Radcliffs case the cause ceasing the effect also ceaseth An office was found that after the decease of Robert Earle of Sussex and Mary the Countesse his mother certaine Lands did descend to Sir John Radcliff Knight as Son and Heire male of the body of the said Robert engendred and the body of the said Mary and Sir John Radcliff Knight was then of the age of eighteen years before the finding of the office and the Lands were holden of the King and Queene by the tenth part of a fee of Knights service in Capite And when Sir John Radcliff became of full age he prayed his livery but the Court of wards required of him for the Queene the valew of his marriage but it was alleaged that because he was made Knight before the title of the Wardship accrewed and the Wardship was due to the Lord in respect of his imbecility to doe the service of a Knight and that the making him a Knight did admit him able to doe the service of a Knight his body ought not to be in ward for defect of such ability for the cause ceasing the effect also ceaseth and that if his person was not in Wardship no marriage nor value for it shall be due to the guardian and so was it adjudged by the Court contrary to Magna Charta c. 4. which was said to be made for the advantage of the Lords vide ibidem plura Coke Com. 312. a. Cessante causa vel ratione legis cessat lex The cause and reason of the Law ceasing the Law also ceaseth as at the common Law no aid was grantable of a stranger to an avowry because the avowry was made of a certaine person and now the avowry being made by the Statute of 21. H. 8. upon no person therefore the reason of the Law being changed the Law it self is also changed and consequently in an avowry according to that act aid shall be granted to any man vide ibidem plura Coke Com. f. 76. a. Cessante causa cessat causatum As if the Lord after he hath the Wardship of the body and the Lord doth release to the infant his right in the signiory or the signiory descendeth to the infant he shal be out of ward both for the body and the Land for he was in ward in respect he was not able to doe those services which he ought to doe to his Lord which now are extinct for the cause ceasing the thing caused ceaseth and there must be a tenure continuing or no Wardship So if the Conusee in a Statute merchant be in execution and his Land also and the Conusee release to him all debts this shall discharge the executiâ—n for the debt was the cause of the execution and of the continuance of it untill the debt be satisfied therefore the discharge of the debt which was the cause discharged the execution which was the effect Coke Com. f. 76. a. So if the heire female within the age of fourteen years be in ward and after the age of fourteen years expired the Lord by the Statute of W. 1. c. 22. hath two years more to tender her a convenable marriage but if the Lord marry her within the two years her husband and shee shall prefently enter into the Lands for the cause ceasing the effect also ceaseth Coke ibidem 7 5. b. The King granteth an office to one at will and ten pound fee during life pro officio illo now if the King put him from his office the fee shall cease 5. E. 4. 8. b. The executor or husband after the death of the wife guardian in socage shal not retain the Wardship for the guardian hath it not to his owne use but to the benefit of the heire and the executor or husband hath not that affection which the testator or wife had which was the cause that the Law giveth them the Wardship 7. Eliz. 293. b. If a stroke be given the first day of May and the King pardon him the second day of May for all felonies and misdemeanors the party smitten dyeth the third day of May so as this is no felony till after the pardon yet the felony is pardoned for the misdemeanor is pardoned and therefore all things pursuing are also pardoned 13. E. 401. If two coparceners make a lease reserving a rent they shall have this rent in common as they have the reversion but if afterwards they grant the reversion excepting the rent then they shall be Joyntenants of the rent Finch mono. f. 9. It is no principall challenge to a Juror that he hath married the parties mother if shee be dead without issue for the cause of favor is removed 14. H. 7. 2. The King disparking the Parke the office of the keeper is determined and all such offices as are presumed in Law to be for the commoditie of the King as well as the Patentee and if one granteth a Stewardship of a mannor and dismembreth that mannor the office is determined if a corporation granteth the office of a towne-clark and surrendreth their patent to be renewed all their offices are determined Huttons Reports Upon a divorce the woman shal have the goods given in marriage not being spent for the goods were given in advancement of the woman and therefore it is reasonable that shee should have them in that the cause and consideration of that gift is now defeated for the cause ceasing the effect also ceaseth Dyer f. 13. p. 61. Coke l. 5. f. 59. b. Vaughans case The originall cause of the amercement being pardoned the
compellable to pay the mony within an houre neither may he deferre the payment for seven yeares but the time must be adjudged by law Ib. So if I prescribe to have common by viâ—inage in such a village namely every yeare after the Corne is severed and carried away to put my beasts into the field and all the terr tenants of the village have carried away their corne and hay except one man onely the law shall adjudge whether he had sufficient time to carry away his corne and hay when his neighbours did carry it away Ibidem by Starky and Fairfax and so in the case before the discretion of the Judges ought to measure the time and surely his opinion seemeth reasonable unto me though I dare not affirme it to be Law for every mans businesse ought to be rated by a convenient time Fulb. l. 1. f 14. a. So Coke l. 3. f. 28. b. Whereas by the statute of 34. and 35. H. 8. of wils and the statute of 32. H 8. of wills shall be expounded that the King shall take for his full part c. of all such Mannors and Lands as shall by any meanes descend or come by descent c. immediately after the decease of the same devisor c. It was said that the word immediately shall not have a strict construction that iâ— ought to bee done in ipso articulo temporis in the same instant of time but shall bee satisfied if it be done in convenient time as in 18. E. 4. 22. If a man be bound to make an obligation immediately yet hee shall have convenient time to make it Ibidem And by the civill law when no day of payment is limitted when the Venâ—ee is to pay his money c. the law doth limit a time and assigne to the pâ—rty charged with the payment the space of threescore daies Fulb. f. 14. l. 1. a. Quam longum debet esse rationabile tempus non definitur in jure sed pendet ex discretione justiciorum Coke cam f. 56. b. A reasonable time shall be adjudged by the discretion of the Judges before whom the cause dependeth As if a man be seised of a Mesuage in fee simple fee taile or for terme of life who hath certaine goods within the same house and maketh his Executors and dieth yet the executors shall have free entry egresse and regresse to carry out of the same house the goods of their testator by a reasonable time which reasonable time shall be adjudged by the discretion of the Judges And so it is if the Lessoroust his Tenant at will he shall have free entry egresse and regress into the said house by reasonable time to carry away his goods and Vtensils So also is it of reasonble fines customes and services upon the true estate of the cause depending before them for reasonablenesse in these cases belongeth to the knowledge of the law and therefore to be decided by the Justices and this being said of time the like may be said of things incertaine which ought to be reasonable for nothing that is contrary to reason is consonant to law ibidem Proprietas temporis fingenda est secundum subjectam materiam Reg. I. C. The propriety of time is to be feined or fitted according to the subject of the matter As if one deviseth by will in writing land to one and his heires and after in another clause he deviseth out of that Land a rent charge to one and his heires that shall be good and the rent in construction of law shall be taken to be first devised though it be last in words Ployd f. 541. a. So if one deviseth a terme for yeares to his son and that the wife shall have it during the sons minority this is first a devisere the wife and afterwards to the son when he commeth of full age vide ibidem plura Qui male agit odit lucem Coke l. 7. f. 66. a. and therefore it was resolved by all the Justices and Barons of the Exchequer that an arrest in the night was lawfull as well at the suite of the Subject as the suite of the King for the Officer and Minister of Justice ought to arrest him when he can finde him for otherwise peradventure he shall never finde him for he that doth evill hateth the light and if the Officer doth not arrest him when he findeth him and may arrest him the Plaintiff shall have an action upon the case and shall recover all his losse and damages and it is like unto the case for Damage-feasant and therefore one may distraine in the night or otherwise peradventure he shall not distraine vide ibidem in Mackallyes case He that doth evill hateth the light quia nocte latent mendae because offences are hidden in the night and therefore as the Civilians fur diurnus differt a nocturno a nocturnall theife differeth from a diurnall and receiveth a different and more greivous punishment with which the common Law accordeth for he that breaketh a dwelling house in the night although he carrieth away nothing committeth felony and burglary and by the Law is deprived of Clergy and suffereth death without mercy whereas if it had been committed in the day he had been capeable of mercy and clergy Qui male agit odit lucam omnia delicta in aperto leviora funt Coke l. 8. f. 127. a. He that doth evill hateth the light and all open offences are the more lightly to be punished as a Forrainer who keepeth an inward shop is a greater offender then he that keepeth an open Shop for hidden places and corners are more dangerous and offensive for there they may use deceit and not be subject to the search and therfore if a forrainer which hath an open Shop shall forfeit forty shillings he that is a Forrainer and offender in secret places is worthy to forfeit five pound for it is the rule of Law and reason quod clam delâ—nquens magis punitur quâ—m paâ—am he that privately offended shall be more punished then he that offendeth openly Tempora mutantur nos mutamur in illis Coke l. 6. f. 78. Times and seasons are changed and so in them are we as at the first the Leases were distributed in decurias or decennas and therefore were called decennarij and out of every ten one of them was called capitalis plegius the Cheife pledge and every of them were pledges for another and at this day in some places is called the Tithingman and in Yorke-shire Tenmantale in respect of the other inferior pledges so as the returne of the Constable or the presentment of the Jury doth not make a man a cheife pledge but the times are changed and the true institution of this Court is vanished vide ibidem Bullens case At the common Law upon a Fine the party had a yeare and a day to make his claime but now by the Statute he hath five years and if the disseisor had continued a year and day
shall not be intended onely of a person who hath judgement of life but also shall be extended to a person convict by confession or verdict for a person attainted is a person convict and more and every greater containeth the lesser Coke l. 5. f. 115. a. It was resolved in Woods case that if a man tendreth more then he ought to pay it is good enough for every greater containeth in it self the lesser and the other ought to accept so much of it as is due unto him Quando plus fit quam fieri debet vâ—detur etiam illud fieri quod faciendum est in mâ—jâ—ri summa continetur minor when more is done then ought to be done that seemes to be done which was to be done and the lesser sum is contained in the greater Ployd f 349. b. The disseisor maketh a Lease for life and the Disseisee confirmeth the estate of the Disseisor the Disseisee cannot enter upon the tenant for life for his right was to all the estate of the Land and if he be barred of the Fee simple he is barred from the estate for life for every greater containeth in it selfe the lesser An action of battery is brought and the evidence proveth it a maime and well because it is battery and more 31. Ass pl. 1. Omne majus continet in se suum minus 28. H. 8. b. By a pardon of Murder Manslaughter is pardoned and and an attaint supposing a verdict to have passed between two Justices whereas it passed before three good enough A recovery pleaded of three acres where it was of six is good enough Finch Nomot f. 31. Where the Custome is that a man shall not devise his Lands for any higher estate then for life yet if the devise be in fee and the Devisee claimeth but for life the devise is good Dyer 150. b. Vpton by his last will in writing deviseth an entire mannor holden by Knights service in fee and it was adjudged a good will for two parts and not void for all A Quâ—re impedit in the Register is praesentare ad Ecclesiam by this he may count pro tertia parte Coke l. 10. f. 136. b. in Richard Smiths case A Procedendo supposeth an Assize before Stouse and Burton Justices and it was also before Shard and good because three containeth two Ployd Where by the Custome of a mannor a man may demise for life he also may demise to his Wife durante viduitate because the greater containeth the lesser Coke l. 4. Non debet cui plus licet quod minus est non licere Regula I. C. Cui licet quod majus non debet quod minus est non licere Coke l. 4. f 23. a. To whom it is lawfull to doe the greater thing to him it is not unlawfull to doe the lesser As where the Custome of the mannor is that Copy-hold Lands may be granted to any one in Fee-simple there the grant to one and his Heirs of his body is within the Custome for he that may lawfully doe the greater it ought not to be unlawfull but that he may doe the lesser Coke l. 9. f. 48. b. There is a great diversity between an Assignee and a Deputy of an Office the Assignee hath an interest in the Office and maketh all things in his owne name and for whom his Grantor shall not answer unlesse it be in some speciall cases but a Deputy hath no interest in the Office but is but a shadow of an Officer and doth all things in the name of the Officer and for whom his Grantor shall answer and when an Officer hath power to make Assignes he may implicitely make a Deputy for to whom that which is greater is lawfull to him that which is lesse is not unlawfull and by consequence when an office is granted to him and his Heirs by it he may make an assignee and by consequence a Deputy Sicut beatius ita majus est dare quam accipere Coke l. â— f. 57. b. There is a manifest diversity between a receiver and giver of seisin for he that hath a terme for years may receive seisin to the benefit of him which hath the Frank-tenement and all our Bookes are that the possession of a Lessee for years or guardian is a sufficient seisin for him in the reversion but he that giveth seisin is tenant of the Frank-tenement and therefore greater then Tenant for years that receiveth for it is a greater thing to give then to receive and therefore Tenant for years by his payment cannot give seisin to binde him which hath the Franke-tenement vide ibidem plura in Bredimans case Omne magis dignum trahit ad se minus dignum Coke Com. f. 44. a. b. The more worthier thing drawâ—th unto it the lesse worthy the Charter granted by H. 3. in the ninth yeare of his reigne was of force and validity notwithstanding his nonage for that in judgement of Law the King as a King cannot be said to be a minor for when the royall politick body of the King doth meete with the naturall capacity in one person the whole body shall have the capacity of the royall politick which is the greater and the more worthy and wherin there is no minority for the more worthier thing draweth unto it the lesse worthy vid. Coke l. 2. f. 68. in Tooker's case ibidem f. 285 a. Three Joynt-tenants are disseised and they arraigne an assize and one of them releaseth to the disseisor all actions personall this shall bar him but not the other for having regard to him the realty as the more worthy shall be preferred and the greater worthy draweth to it the lesse worthy ibidem 355. b. It was said that upon a recovery had by default in an action of Wast against Tenant in Dower a quod ei de forceat did not lye because in an action of Wast Damages were the principall as most antient and that therefore cleerely no quod ei deforceat did lye but it was answered that the place wasted was the worthier being in the realty then Damages that be in the personalty though more antient omne magis dignum trahit ad se minus dignum quanquam minus dignum sit antiquius a digniori debet fieri denominatio and every more worthy draweth unto it the lesse worthy though the lesse worthy is more antient and a denomination ought to be from the more worthy vide ibidem plura Coke l. 6. f. 43 b When an action is in the realty or mixt with the realty accord with satisfaction is no Plea for accord with satisfaction is a bar for the personalty but not for the realty and when the personall is mixed with the realty it is no bar for the personalty for allwayes the greater draweth unto it the lesse vide ibidem plura in Blâ—kes case Charters are put into a box this alters the nature of the box from being a Chattel and shal go to the heire and as
Laborne in his house being one of the Seriants of the City of London Frost cometh to Laborne with a Warrant from the Sheriffs to arrest the said â— upon the Capias Utlegatum which he utterly refuseth but suffereth him to goe at large upon an action of the case brought against the Sheriffs supposing that the Sheriffs arrested him and suffered him to goe at large the Defendants pleaded that they did not suffer him to goe at large and judgment was given for the Plaintiff and the verdict warranted well the count for in judgement of Law the Sheriff and his Serjeants are words equipollent amount to so much and is all one as if the Sheriffs had arrested the said B. vide ibidem plura A Writ is to the Sheriff and he returneth virtute praecepti he hath done well for it is equipollent virtute brevis 11. H 6. 16. In a Writ it is said quam clamat esse jus this equipolleth with a Fee-simple and therefore in the subsequent part of the Writ if he instanceth in a lesser estate as ex dono for life the Writ shall abare 39. H. 5. 38. Upon an Enditement for celebrating Masse contra formam Statuti 1. El I was holden that under this terme Minister a Preist was included because a Preist is bound to celebrate and minister the holy communion c. and also it was holden by all that the terme Clerk is sufficient to prove him a Preist or a Minister Dyer f. 203. b. Coke l. 5. f. 4. b. Verus antiquus redituus the true and antient rent is not to be understood of the quality incident to it but of the quantity of the rent for that is the effect and substance of the thing reserved as if the antient reservation was of rent to be paid in Gold and the novell reservation was to be paid in Silver or if a quarter of Corne was antiently reserved and now the lease is made rendring eight bushells of Corne it is all one for the Law respecteth not the formes of words or their quality but the substance and effect of the matter parum differunt qui re concordant and they differ little which agree and equipoll in substance If one maketh his Will and committeth the Administration to one by it he shall be Executor because it is all one in substance 3. H. 6. so by the grant of a Church the advowson shal passe 7. E. 3. 15. One granteth the nomination of an Advowson Habendum the advowson the Habendum is good for it is the same thing so one granteth the remainder whereas he had a reversion it is good enough to make the thing passe 6. E. 6. Ante 134. vide Ployd 157. b. If a man lease to one an acre of Land for life reserving to himselfe the herbage the reservation is void because he hath leased the same thing in substance and the profits of the Land and the Land it selfe are all one 38. H 6. 34. Words of substance and not usuall are equivalent to words of substance and usuall Ployd 140. b. As if tenant for life and his Lessor make a Feoffment in fee it is the Feoffment of the Lessee for life and the confirmation of the Lessor though there be not a word of a confirmation in it and if tenant for yeares and the Lessor make a Feoffment in fee it shall be the livery and Feoffment of the Lessor and the surrender of the Lessee and yet there was not one word of surrender And if a commoner maketh a deed to the tenant of the Land by which he renounceth the common unto him it shall enure as a release because the words are equivalent to a release So if Land be leased by Indenture for yeares and Covenants made to render and pay for the tenements such a summ it is all one as a reservation of a rent and if the Lessor say I wil have twenty pound rent and the Lessee agree or if the Lessee say I will give twenty shillings rent and the Lessor agree it is a good reservation of a rent so if a man be bound by Obligation to en feoffe I. S. and he maketh a lease for years and a release in fee he hath performed the condition because they are all one vide ibidem Yet words of art may not be supplyed by equivalent and equipollent words though they beare the same sense and substance as in an Enditement of murder voluntarie ex mulitia praecogitata interfecit is not sufficient but the word murder avit must be so in an Enditement quod quoddam tormentum in H. L. exoneravit dans eidem H.L. cum pelletto plumbeo predicto vulnus mortale Dans ei vulnus mortale c. is not sufficient but it should have been percussit which is the word of art Coke l. 5. f. 222. b. Longes case And the reason of this is given by Coke in his Preface to Littleton that words of art are so apt and significant to expresse the true sense of the Laws and so woven into the Laws themselves as it is in a manner impossible to change them neither ought legall termes to be changed SECT 4. From naturall Philosophy NExt to Logick by whose principles as by many hands we are conducted to the knowledge of the Lawes and other Sciences naturall philosophy is to be placed which is the prime and principall part of other Sciences for by the knowledge of naturall things we are instructed to observe the diversity of the actions and manners of men according to the difference of climats and various conditions of them of which any one ignorant wil be altogether unable to judge of civill and aeconomicall affaires and therefore as Mr Ployden Have the Philosophers searched so deeply into the law of nature in their lawes and writings and for the government of the people by them given precepts to follow the rule of nature and have taken nature to be as it were a foundation to all lawes Neither have the Founders of our lawes been remisse in searching out the law of nature neither were they void of the understanding of it for their lawes argue the contrary and shew that those who made them were of more great and profound judgement and as well learned in the law of nature as in all reason and in the Law of God also for nothing in our Law is ordeined contrary to nature or contrary to reason or contrary to the Law of God but according to them all Ployd 304. a. and b. And according to it hath the law established diverse grounds and maxims 1. Quae rerum natura prohibentur nulla lege confirmata sunt Reg. I. C. Marcellus Lawes which are contrary to the Law of nature lose their force and are no lawes at all Finch Nom. f. 75. Such was that of the Egyptians to turne women to Merchandise and Common wealth affaires and men to keep within doores and of the Thracians who counted idlenesse an honest thing and stealing
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
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
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
of England I have been too copious in the exemplification of this ground by so many notable cases drawn on by the variety and curiosity of them they being exorbitant from the beaten tract of the common Law from which for the better effecting and doing of right the Law deemeth it convenient and necessary to swarve and deviate and that in favorem juris et recti To add one example more if an obligation be made beyond the Seas and it beareth date at Burdeaux in France where shall it be sued answere is made that it may be alledged to be made in quodam loco vocato Burdeaux in France in Islington in the County of Middlesex and there shall it be tryed for whether there be such a place in Islington or no it is not traverseable in that case Coke com 261. b. Executio juris non habet injuriam Reg. I.C. Hobaâ—t f. 266. The execution of the Law hath no injury As if a man bringeth an action upon a false surmise in a proper Court he cannot bring an action against him and charge him with it as a fault directly and ex diametro as if the suite it selfe was a wrongfull act for the execution of the Law hath no injury So Coke com f. 161. a. It is regularly true that a man shall not be punished for suing of Writs in the Kings Court be it of right or wrong ibidem And therefore 11. Eliz. a man brought a Writ of forger of false deeds the Defendant though he be found guilty could not have a scandalum magnatum and lay the charge contained in the action to be the scandall for no punishment was ever appointed for a suite in Law although it be false and upon vexation vide Dyer f. 285. Pl. 37. And so we rule it every day that if a man be imprisoned upon a formall suit though there were no just cause of suite yet if he give a bond for his release he shall not avoid it by duresse because it is incarceratio legitima Hob. 1. l. And though every thing by nature is good and as Saint Paul saith The Law is good if a man use it lawfully yet the abuse of the Law is the fact and therefore on the contrary part if you charge me with a crime in a Court that is no way capeable of the cause I shall have an action for it and lay that very complaint to be the slander as Coke l. 4. f. 14. b. Wood exhibited a bill in the Star-Chamber against Barkeley and inter alia charged him that he was a maintainer of Pirates and Murderers c. B. brought an action of the case against W. and counted that the said W. had exhibited a bill in the Star-Chamber containing inter alia that the said B. was a maintainer of murderers and pyrates c. and it was resolved that for any thing contained in the bill which was examinable in the said Court no action lyeth although the matter was meerly false because it was in course of Justice but for the said words not examinable in the said Court an action upon the case lyeth for that could not be in course of Justice vide ibidem plura And if a man sue me in a proper Court yet if his suite be utterly without ground of truth and that certainely known to himselfe and thus as the Civilians it be done animo injuriandi I may have an action upon the case against him for the undue vexation and damage that he putteth me unto by his ill practise though the suite it selfe be legall but I cannot complaine of it as it is a suite and therefore the sixteenth of E. 3. Fitz. deceipt 35. A Conusee of a Statute sued execution against his deed of defeasance whereupon the Conusor had an action of deceipt against him and his Assignee in the nature of an Audita querela yet though he was imprisoned upon the Statute could he not bring an action of false imprisonment if he had paid the mony before the day limited by the defeasance because he was imprisoned by course of Law 43 E. 3.33 And if a man sue me and hanging that suite commenceth another against me to this I have a Plea in abatement which proveth this latter suite unjust and vexatious but if he discontinue the former he may bring a new action 43. E. 3. for as Coke com f. 130. a. It may be he hath mistaken some thing in that action or was not provided of his proofes or mistaking the day or the like Likewise I hold I may have an action of the case against him who sueth me against his release or after mony duly paid yea though it be upon a single obligation Hob. ibidem But in these cases these two cautions are to be observed that the new action be not brought before the other be determined because till then it cannot appeare that the other was unjust 2. R. 1. And for this reason a Writ of conspiracy lyeth not untill the Plaintiff is acquitted The other is that besides the thing done amisse there must also be a damage either already suffered or else inevitable and therefore 19. H. 6.44 If a man forge a bond in my name I can have no action of the case yet but if I be sued I may for the wrong or damage though I may avoid it by Plea but if it were upon a recognizance or fine I shall have a deceit presently before execution for Quae incontinente aut certo fiunt in esse videntur and 43. E. 3. 10. deceit against one who procured a Formedon by collusion vide ibidem plura in Waterers case And this rule faileth in a Writ of Replevin against the Lord as if the Lord distraine for rent and the tenant bringeth a Replevin whereby the Lord is disturbed of the meanes to come to his rent this is in Law a disseisin Coke com f. 161. a. Nullus commodum capere potest de injuria sua propria Coke com f. 147. b. No man shall take advantage of his own wrong as if B maketh a lease of one Acre for life to A. and A. seised of another Acre in fee granteth a rent-charge to B. out of both Acres and doth wast in the Acre which he holdeth for life B. recovereth in wast the whole rent is not extinct but shall be apportioned and yet B. claimeth one Acre under A. and so it is if A. had made a Feoffment to B. in fee and B. had entered for the forfeiture the rent is not wholly extinct but must be apportioned and the reason hereof is for that is a maxime of Law that no man shall take advantage of his own wrong And therefore seing the wast and the forfeiture were committed by the act and wrong of the Lessee he shall not take advantage thereof to extinguish the whole rent and the whole rent cannot issue onely out of the other Acre because the Lessor hath one Acre under the estate of the Lessee and therefore
Act in Law respecteth equity and will never charge any one with more or lesse then in reason and equity it ought For as Bracton saith jus respicit aequum If two four or more being severally seised in land joyn in a Recognizance all their lands must be equally extended An house that hath Copyhold and other lands usually occupyed with it is let for yeares with the lands appertaining yet the Copyholds passe not without speciall naming for then it were a forfeiture of them for the Law construeth all things according to equity and constraineth a generall Act if there be any mischief or inconvenience in it Finch Nomot f. 54. So a Corody granted to one and his Servants to sit at his Messe he cannot bring a Servant that hath some stinking and noisome disease And if Estovers be granted out of a Mannor the Grantee shall not cut down Fruit-trees So a Common granted to one for all his Beasts he shall not have Common for Goats and Geese nor other Beasts not Commonable Finch ibidem It is no Trespasse for a man to beat his Apprentice which is but reasonable correction for equity moderateth the strictnesse of the Law Finch Nomot f. 57. No more is it to carry away a mans Wife against his will to a lawfull end as to sue a divorce against her husband or to have the Peace of him before a Justice of Peace So if the Lessor commeth upon the ground it shall be intended that he came to see if Wast were done for equity turneth all to the best and maketh every Act to be lawfull when it is indifferent whether it be lawfull or not Finch Nomot f. 57. And if the Disseisee come it shall be taken that he meant to be remitted And in an Action of Trespasse if two Issues be joyned triable in two Counties as one in London and another in Middlesex without saying which of the Issues it should try this shall be taken to try the Issue in Middlesex onely for so the Venire facias is lawfull and not in both Counties which is against Law and therefore it is a discontinuance in the City of London and no discontinuance Finch ibidem And such a desire hath the Law to be ruled by equity as that it will feigne a thing in shew and colour whereby the reall right and equity of the thing may more certainly be found according to the ground Lex fingit ubi subsistit aequitas The Law faigneth where equity subsisteth Coke l. 10. f. 90. a. As the reason why the Law will give a colour in a Writ of Entry Sur-disseisin Writ of Entry in nature of Assise Trespass c. is that the Law which preferreth and favoureth certainty as the Mother of quiet and repose to the intent that either the Court shall adjudge upon it if the Plaintiff demurr or that a certaine Issue may be taken upon a certaine point requireth that the Defendant when he pleadeth such a speciall Plea that yet notwithstanding the Plaintiff may have right the Defendant shall give colour to the Plaintiff to the end that the plea shall not amount to the generall issue and so to leave all the matter at large to the Jurors which shall be full of multiplicity and perplexity of matter and though the colour be but a fiction yet the Law feigneth where equity subsisteth So f. 40. a. Common Recoveries are fictions in Law and for the equity that in them is transacted they are not onely allowed by the Common Law for the intended recompence but warranted by statutes for their equitable use And therefore the statute of 7 H. 8. c. 1. reciteth that divers as well Nobles as Commons have suffered Recoveries against them of divers of their Mannors for the performance of their Will for assurance of Joyntures to their Wives c. The same act in approbation of common recoveries giveth remedy to such recoveries in divers cases And in Dr. Student c. 26. it is determined that common recoveries do bind as well in conscience as in Law for semper in fictione legis subsistit aequitas And by the statute of 23 Eliz. c. 4. it is provided that for the avoiding of danger to common assurances in lands and for the advancement of common recoveries that not any common recovery shall be avoided by any want of form in words and not in matter of substance vide ibidem plura in Mary Portingtons case So Co. l. 11. f. 51. a. If one disseise me and during the Disseisin he cutteth down Trees Grass or the Corn and then I re-enter I shall have an Action of Trespasse against him vi armis for the Trees Grass and Corn for after my regresse the Law as to the Disseisor and his Servants supposeth that the Frank-tenement hath alwaies continued in me but if my Disseisor make a Feoffment in fee gift in tail lease for life or yeares and after I re-enter I shall not have trespasse vi armis against them who come in by Title for this fiction in Law that the Frank-tenement hath continued alwaies in me shall not have relation to make him that cometh in by Title to be a wrong doer vi armis for in a fiction of Law alwaies equity existeth vide ibidem plura And by these cases it appeareth that equity hath a vigorous use in the exposition of the Common Law But this bright Star more cleerly shineth and sheweth forth its lustre in the construction of Statutes for as Co. Comm. f. 24. b. equity is a construction made by the Judges what cases out of the letter of the Statute yet being within the same mischief or cause of the making of the same shall be within the same remedy that the statute provideth and the reason hereof is for that Law-makers could not possibly set down all cases in expresse termes and Co. Com. f. 271. b. when Lands and Tenements are conveyed upon confidences uses and trusts if any question groweth upon them they are to be ruled and decided by the Judges of the Law for they are within the intendment and construction of the Lawes of the Realm Rhet. l. 1. c. 3. And therefore Aristotle well adviseth Legislators and Makers of Lawes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to design and determine of things and to leave as little as may be to the descretion of the Judges But as Co. lib. 6 f. 40. b. Rerum progressus ostendâ—nt multa quae initio praecaveri provideri non possint The progresse and proceeding of things do declare and shew many things which at the beginning could not be heeded or provided for and therefore is equity required to replenish and fill up those chincks and deserts which seem to be in the letter of the Law which is therefore accordingly thus defined Aequitas est verborum legis directio sufficiens cum una res solummodo cavetur verbis ut omnis alia in aequali genere iisdem caveatur verbis Equity is a sufficient direction of the words
case whence springeth this often used assertion Non est regula quin fallit for as Cato saith vix ulla lex fieri potest quae omnibus commoda sit sed si majori parti prospiciat utilis est there can scarce any Law be made which shall fit all men but if it provideth for the greater part it is profitable and therefore the ordainers and interpretors of Laws respect rather those things which may often happen and not every particular circumstance for the which though they would they shall not be able by any positive Law to make provision and for the like reason Mr. Ploydon saith that Law is reasonable that provideth for the multitude though that some persons loose by it f. 369. b. By reason whereof they doe permit the rules actions and propositions of the Common Law upon discourse and disputation of reason to be restrained by exceptions which are grounded upon two causes the one is equity the other is some ground or rule proposed wherein for conformities sake and that no absurdity or contradiction be permitted certaine exceptions are framed which doe not onely knit and conjoyne one rule of reason to another but by meanes of their equity temper the rigor of the Law which upon some certaine circumstances in every of the said rules might happen and fall out omnia bene aequiparat as Bracton saith Nomot f. 14. But as Sir Hen. Fi. saith this crossing and encountring of one ground and maxime with another if the greatest difficulty we finde in the arguing of our cases but to help this we are to prefer those and those are to prevaile that carry the more excellent perfect reason and equity with them and Sir Francis Bacon saith it is a point worthy to be observed generally in the rules of the Law that where they encounter or crosse one another in any case it be understood that the Law holdeth worthier and which rules are of more equity or humanity but now to give you some examples of them which allwayes doe illustrate Coke com 183. It is a maxime in the Law Quaelibet concessio fortissime contra donatorem interpretanda est every grant shall be taken most strongly against himselfe as if Lands be letten or a rent granted an estate for life passeth for that is most strongly against himselfe which is to be understood that no wrong be thereby done for there is another rule in the Civill Law ea est accipienda interpretatio quae vitio caret and a maxime in our Law that legis constructio non facie injuriam the interpretative construction of Law shall wrong no man and therefore if tenant for life maketh a lease generally it shall be taken for his own life or else it should worke a wrong to him in reversion and so it is if tenant in taile should make a lease generally for otherwise it should worke a discontinuance and a wrong vide ibidem So if tenant in fee maketh a lease for life without mentioning for whose life it shall be deemed for the life of the Lessee and shall be taken more strongly against the Lessor but if tenant entaile maketh such a lease for life without expressing for whose life this shall be taken for the life of the Lessor because otherwise it would work a wrong Coke Com. f. 42. a. So if an Executor grant all his Goods and Chattells the goods which he hath as Executor will not passe because it may be a devestation and a wrong yet against the trespassor he shall declare quod bona sua cepit 10. E. 4.1 So it is a rule verba ita sunt intelligenda ut res magis valeat quam pereat words are so to be understood that the matter may prevaile rather then perish as if I give Lands to I. S. and his Heires rendring five pounds yearly to I. S. and his Heires this implyeth a condition to me that am the Grantor yet were it a stronger exposition against me to say the limitation should be void and the Feoffment absolute Bacon Max. f. 15. If the Chancelor dyeth before his servants priviledge discussed in bank 35. H. 6. 3. 172. b. yet it shall be allowed contrary to the rule sublata causa tollitur effectus but there is another rule actus legis nulli facit injuriam the act of the Law prejudiceth no man and for that reason the Court shall not prejudice him where no folly was in himselfe It is a ground qui male agit odit lucem and therefore the Law countenanceth more things done in the day then in the night as the party hath all the day till night to pay his rent and if it be a great sum he must be ready as long before the Sun set as the mony may be told for the other is not bound to tell it in the night and a man must not distraine in the night time for rent behind yet is there another ground in the Law quod necessarium est licitum and therefore when there is a necessity of doing things they may be done in the night time as an arbitrement made and delivered in writing the last day after the Sun set is good enough for judgements and arbitrements require long advice so may goods be distrained for in the night for damage feasant and a man may be arrested in the night for otherwise peradventure he shall not doe it at all It is a ground in the Law nihil agit in seipsum no man can doe an act to himself yet if one of the Chapter enfeoff the Deane and Chapter by that he he himselfe shall take by his own livery because the Law in that case cannot doe otherwise so a feme tenant in Socage may endow her selfe and an Executor pay himselfe It is a ground in the Law certa debet esse natratio counts and declarations must be certaine yet things which containe a necessary implication are good enough for it is another ground non refert quid ex aequipollentibus fiat it mattereth not what is done by equippollent or words which amount to such a sense as in an Ejectione firmae c. In a count of a lease made by tenant for life it sufficeth to say that the Lessor is yet seised without the alledging of his life expresly because it amounteth to the same sense by necessary implication So in an information upon the Statute of usury and he counts that the Defendant took per viam medium corruptae mutnationis by the way and means of corrupt borrowing whereas it should be accomodationis plaudingo and yet good enough It is a ground qui facit per alium facit per se things done by another are as it were done by himselfe yet is there another rule that corporall and personall things cannot be done by another as suite of Court cannot be done by another 7. H. 4.9 Otium est mater omnium vitiorum Coke l 11. f. 53. b. As all vertue consisteth in action so vice
in Auditor Carles case offices committed to many are more safely discharged And therefore by the Statute of 32. H. 8. it is provided that there shall be two persons named to the Kings highnesse which shall be called the Auditors of the Lands of his graces Wards and the King cannot constitute one onely for the subject by the Act hath an interest in it and more safely are the businesses dispatched which are committed to many and therefore though the words of the grant be conjuctim divisim alterius eorum diutius viventi yet are they not materiall for if an office be granted to two pro termino vitarum suarum without more by the death of one of them the grant shall be void for being an office of trust there shall be no Survivor And in this case no Survivor shall be because the Act saith there shall be two persons and though the King may constitute one at one time and another at another time yet he that is first chosen shal have no judicial voice until the other is constituted and to this purpose there may be a Survivor of one of the persons to whom another shall be added Plus vident oculi quam oculus nemo potest supplere vicem duarum personarum Coke l. 4. f. 46. a. Two eyes see more then one and no person can supply the place of two and f. 118. a. As if a baron be made Knight of the Garter or Warden of the Cinque Ports hee shall have but three Chaplaines in all notwithstanding the Statute of 21. H. 8. for though he hath diverse dignities yet is he the same person to whom the attendance is to be made for it is a difficult matter for one man to supply the place of two and though it be a ground quando duo jura in una persona conveniunt aequum est ac in diversis when two rights concur meet together it is all one as if it were in several yet this Act was allwayes construed strictly against non-residencies and pluralities as a thing very prejudiciall to the service of God and instruction of the people and therefore if a Bishop be translated to an Arch Bishopwrick or a Baron be created an Earle and now hath both those dignities yet by this act he shall have but so many Chaplaines as an Arch-Bishop or an Earle may have for the reason abovesaid Ibi. Minister legis non tenetur in executione officij sui sugere aut recedere Coke l. 9. f. 68. a. in Makalies case An Officer or Minister of Justice is not bound in the execution of his office to flye or to goe back and therefore an Officer and Minister of the Law in the execution of his office if there be any resistance and assault is not bound to flye to the wall c. as other Subjects are for the life of the Law is more favored then the life of man and the execution of the Processe of Law and the offices of the conservators of the peace are the soul and life of the Law and the meanes by which Iustice is administred and the peace of the Realme guarded Officia judicialia non concedantur ante quam vacant Coke l. 11. f. 4. in Auditor Curles case judiciall offices ought not to be granted before they are void and therefore was it resolved in that case that the grant made by the King to John Churchill and John Tooke in reversion after the death of T. and C. was void partly because it was a judicial office for these Auditors are one of the Iudges of the Court and as none can give any judgement of things which happen in future so none can be a Iudge in future and great inconvenience would thereupon ensue for he who at the time of the grant of the reversion may be able and sufficient to supply the place of judicature and administer Iustice to the Subjects of the King before the office fall may become unable and insufficient to performe it and it was resolved that neither the office of master of the Wards nor of the Survivor nor of the Attorney of the same Court may be granted in reversion because they are judiall offices But ministeriall and secular offices may be granted in fee in tail for life or at will as the offices of the Constable of England Marshall Vis-count or the Warden of the Fleete and the reason is because those temporall officers have their offices in their naturall capacity and the King in policy may suppresse and revive those offices pro loco tempore and by consequence may limit temporall estates in them Davis f. 45. b. So the office of keeping of our Lady of Lincolne was entailed and a Formedon brought upon that guift of the Office by the Issue in taile 18 E. 3. 27. The Office of one of the Chamberlains of the Exchequer was entailed 1 H. 7. 8. The Office of a Fostership was entailed 4 H. 7. 10. 9. Coke comm f. 20. a. vide ibidem plura Aliquis non debet esse judex in propria causa immo iniquum est aliquem suae rei esse judicem Coke l. 8. f. 118. a. No man ought to be Judge in his own case yea it is a partiall and unequall thing that any one should be a Judge in his own matter In Dr. Borhams case in which case one of the reasons there alledged was that the censors had not power to commit Dr. Bonham because they could not be Judges Ministers and Parties Judges to give sentence Ministers to make summons and Parties to have the Moyety of the forfeiture for no man can be a Judge in his own case one cannot be a Judge and an Attorney 3 E. 6. f. 65. Dyer If any act of Parliament give to any one power to hold or have Cognizance of all manner of pleas before him arising within his Mannor of D. yet he cannot hold plea to which he himself is a party for it is unequall for any one to be a judge in his own matter vide ibidem plura Yet in some cases one shall be his own Judge Pay-master and Carver As if the Lessor covenant to repair the house if he do not and the Lessee do it he may pay himself out of the rent 12 H. 8. 1. Guardians of a Church at their own costs repaire the Church and for amends detain ten load of stones of the Parishioners for which the Successors Guardians bring an action of account and adjudged that they may lawfully detain them 37 Eliz. Metholl and Winge So Taylors and Hostlers may detain the Robe or Horse c. untill reasonable satisfaction is given If one to whom the Testator is indebted will not receive Goods in recompence then it is lawfull for the Executor to pay him with his own money and retain so much Goods of the Testator for it may be there is a penalty which will be forfeited before that he can sell the Goods of the Testator Dyer f. 2. pl.
affectum tribuit delinquendi minatur innocentes qui parcit nocentibus Coke l. 4. f. 45. a. Evil doings ought not to go unpunished because impunity ministreth a continuall affection of offending and he threatneth the innocent who spareth the Delinquent And Aristotle Pol. 7. Actiones justitiae sunt necessariae in civitate licet non eligibiles Though the actions of Justice that is the sentences and punishments of evill and condemned persons are not secundum se of their own nature eligible yet are they necessary in a City that the City may be the better ruled and saved for as Solon there are two things and tyes by which a Common-wealth is contained and preserved praemium poena reward and punishment and it is truly said Etsi meliores sunt quos ducit amor tamen plures sunt quos corrigit timor Thoughâ— they be the better persons whom the Love of goodness vertue draweth yet there are more whom the fear of punishment doth deter and correct and therefore the wisdome of our Law doth abhor that greater offences should pass unpunished So as that if a man be convict either of verdict or by confession upon an insufficient Indictment and no Judgment upon it given he may again be indicted and arraigned because his life was never in jeopardy and the Law wanteth his end which provideth that no evill Deeds should pass unpunished Coke l. 4. f. 45. a. for as Coke saith l. 5. f. 53 b. Oderunt peccare mali formidine penae The wicked to offend themselves refrain And from the same are scar'd for feare of pain And therefore by the Common Law is the offence of felony so severely punished and though the Judgment against such a Malefactor in that he shal be hanged by the neck untill he be dead yet implicitively he is punished First in his wife that she shall lose her Dower Secondly in his Children that they shall become base and ignoble Thirdly that he shall lose his Posterity for his blood is stained and corrupted that they cannot inherit to him or to any other Ancestor Fourthly that he shall forfeit all his Lands and Tenements which he hath in fee or in tail or for term of his life And fifthly all his Goods and Chattels And the reason was that men should fear to commit Feloâ—y ut poena ad paucos metus ad omnes perveniat that the punishment might be inflicted on few and the feare may come to all But some Acts of Parliament have altered the common Law in some of these points as by the Statute De donis conditionalibus lands in tail were not forfeited neither for Felony nor for Treason but for the life of Tenant in tail And this Law continued in force from the thirteenth year of Edward the first untill the twenty sixth year of Henry the eighth when by Act of Parliament Estates in tail are forfeited by attainder of high Treason but as for Felons the Statute De donis Conditionalibus doth still remain in force so as for attainder of Felony Lands and Tenements in tail are not forfeited but onely during the life of Tenant in tail but the Inheritance is preserved for the Issues but being attainted of high Treason or Petit treason the wife shall not be received to demand her Dower but in certain cases specially provided for Ployd f. 195. Coke com f. 392. a. b. And now the wife of a person attainted of misprision of Treason Murthâ—r or Felony is dowable by the Statute of 5 E. 6. c. 〈◊〉 c. in that case made and provided which is more favourable to the women then the Common Law was Coke ibidem Receditur a placitis Juris potius quam injuâ—iae delicta maneant impunita Bac. Max. f. 51. The Law will dispence with some grounds of the Law rather then crimes and wrongs should be unpunished quia salus populi suprema lex the safety of the people is the supream Law and the safety of the people is contained in the repressing of offences by punishment It is a positive ground that the accessory in Felony cannot be proceeded against untill the principall be tried yet if a man by subtility and malice set a mad man by some device to kill one and he doth so now forasmuch as the mad man is excused because he cannot have any will or malice the Law accounteth the Incitor as principall though he be absent rather then the Crime shall go unpunished 13 Eliz 1. So it is a ground in the Law that the appeal of Murther goeth not to the Heire where the party murthered hath a wife nor the younger brother where there is an elder yet if the wife murther the husband because she is the party Offendor the appeal leapeth over to the heire and so if the Son and Heir murther his Father it goeth to the second brother Ed. 4 M 28. 6. Stanf. l. 2 f. 60. But if the Rule be one of the higher sort of Maximes that are regulae rationales and not positivae then the Law will endure rather a particular Offence to escape without punishment then violate such a Rule As it is a Rule that penall Statutes shall not be taken by equity And the Statute of 1 E. 6. enacteth that those that are attainted for stealing of Horses shall not have their Clergy The Judge conceived that this should not extend to him that should steal but one horse and therefore procured a new act for it in 2 E. 6. c. 33. for it is not like the case upon the Statute of Gloucester that gâ—â—â—â—h an action of waste against him for term of life or years and yet if a man hold for a year he is within the Statute for penall Lawes are taken strictly and litterally onely in the point of defining and setting down the fact and punishment and in those clauses that concern them and not in generall words which are but circumstances and conveyances in the putting of the case and so note the diversity for if the Law be that for such an offence a man shall lose his right hand and the Offendor hath his right hand cut off in the Wars he shall not lose his left hand but the crime shall rather pass unpunished vide ibidem plura Nemo punitur pro alieno delicto Coke com f. 145. b. No man is punished for another mans fault And therefore the Defendant in a Replevin cannot claim property by his Bayliff or Servant and the reason is for that if the claim fall out to be false he shall be fined for his contempt which the Lord cannot be unless he maketh claim himself for no man shall be punished for anothers fault Dyer f. 66. pl. 14. It is the Law of God that every one shall bear his own burthen and receive judgment according to his proper fact and merit whether it be good or evill As whereas the Plaintiff chargeth the Defendants with an escape made and suffered by them they ought not to accuse
corrodit vistera textus a viperous exposition which should tear the bowels of the Text ibidem Coke l. 8. f. 1. 7. a. b. The better Expositors of all Letters Patents and Acts of Parliaments are the Letters Patents and Acts of Parliament themselves by construction and conference of all the parts of them together for optima Statuti interpretatrix est omnibus particulis ejusdem inspectis ipsum Statutum Injustum est nisi tota lege inspecta una aliqua particula proposita judicare vel respondere The best expounder of a statute is the statute it self all the parts of the same being looked into and it is an unjust thing One particular being propounded to judge and answer unless the whole Law be looked into ibidem in Dr. Bonhams case Coke l. 10. f. 24. b The better exposition of the Charter of the King is upon consideration of all the Charter to expound the Charter by the Charter it self and the Letters Patents in this case are the bowels of the Text and therefore all the parts of the Letters Patents should be considered and every part of it explained according to the true and genuine sense for verba chartae regi aeque portant suam expositionem For the words of the Kings Charter do equally carry their own exposition ibid. Divinatio non interpretatio est quae omnino recedit a littera Bac Max. f. 16. It is a divination and not an interpretation which leaveth the Letter As if I have a fee-farm Rent of ten shillings issuing out of White-acre and I reciting the same reservation do grant to I. S. the rent of five shillings to be received out of the aforesaid rent and out of all my Lands and Tenements in Dale with clause of distress Though there be an Attornment nothing passeth out of my former rent because for that it is against the words and the copulation of the words shew the taking of them in another sense but if I reciting that I seised of such a rent of ten shillings do grant five shillings to be received of the same rent it is good enough without attornment because percipiendum de to be received of may well be taken for parcella de parcell of without violence of the words but if it had been of the aforesaid rent it had been void vide ibidem But as Ployden saith f. 162. Exception Non est regula quin fallit There is no Rule but faileth and as hath been said the more reasonable and equitable rule is alwaies to be preferred when they encounter and meet in opposition as contrary to this is the rule of the Civilians Leges non verbis sed rebus esse impositas And Coke l. 11. 34. b. Qui haeret in littera haeret in cortice Lawes are not imposed upon words but upon things and he that sticketh in the letter sticketh in the bark or outside of the matter and not attaineth to the inside of the sense As by the statute of 27 E. 3. c. 1. It was provided that he that draweth one to the Court of Rome in a plea which was determined in the court of the King or of other things whereof judgment is given in the Court of the King c. to defeat the judgments given in the Court of the King shall have day containing the space of two moneths c. and if they come not within the meane time in proper person they shall be put out of protection c. and the question was moved in 30. E. 3. 11. If the Defendant appeareth pleadeth and be condemned whether he shall have the Judgement of a Praemunire given by the said Act but since in 39. E. 3. f. 7. Iudgement was given against the Bishop of Chicester who appeared although the letter of the Statute is that if they come not at the same day c. they shall be put out of protection and therefore a multo fortiori when the defendant in such case appeareth pleadeth and shall be found guilty he shall have Iudgement upon the said Statute 44. E. 3. 36. and yet it is out of the words of the Act which speake onely of a default for Qui haeret in littera c. So by the Statute of 25. E 3. the killing of his Master is adjudged Treason yet by construction is it extended to his Mistresse as it is holden in 19. H. 6. 47. And whereas by the Statute of 25. H. 8. house burners were deprived of Clergy and in the Statute of 5. 6. E. 6 there was no mention of that offence in particular but onely that the said Statute should stand in force concerning the tryall of offendors in another County yet by another sentence in the said Act that every clause and sentence in the said Act touching Clergy c. shall from henceforth concerning such offences remaine and be in full strength and virtue it was adjudged that the said clause should extend to all the Act of 25. H. 8. because by that construction such an hainous offence should not passe in effect without capitall impunity and that such Malefactors shall not be encouraged to burne not onely Houses but Villages and Cities And it is frequent in our Books that penall Statutes have been taken by intendement beside the letter to the end that they shall take effect according to the expresse intention of the makers of the Act to remedy the mischeife in advancement of Justice and suppression of hainous crimes Coke ibidem vide ibidem plura And though it is a Maxime that penall Lawes are to be taken it may be conceived of such as concerne inferior and not hainous offences Coke Com. 365. b. A man seised of Lands in fee levied a fine to the use of himselfe for life and after to the use of his wife and of the heire males of her body by him begotten for her Joynture und after he and his wife levied a fine and suffered a common recovery the husband and wife dyed and the issue male entered by force of the Statute of 11. H. 7. And it was holden that the entry of the issue male was lawfull and yet this case was out of the letter of the Statute for shee never levied a fine being sole or with any other after taken husband but is by her selfe with the husband that made the loynture but this case being in the same mischeife is therefore within the remedy of the Statute by the intendement of the makers of the same to avoid the dis-inherison of heires who were provided for by the said Ioynture and especially by the husband himselfe that made the Ioynture which as it was said was a stronger case then any set down in the Statute for Qui haeret in littera vide ibidem plura Coke com 241. a. If there be Lord Mesne and Tenant and the Mesne doth grant to the Tenant to acquit him against the Lord and his heires the Lord dyeth his wife hath the signiory assigned to her for the
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
at Westminster to the Church of S. Peter at Rome within three hours that then the Obligation shall be void the Condition is void impossible and the obligation standeth good And so it is of a Feoffment upon condition that the Feoffee shall go as is aforesaid the Feoffment is absolute and the Condition void because it is a Condition subsequent for there is a precedent Condition and a subsequent Condition If a Condition subsequent to a Feoffment in fee be impossible the state of the Feoffee is absolute but if the Condition precedent be impossible no state or interest groweth thereupon As if a man make a Lease for life upon Condition that if the Lessee go to Rome as aforesaid that then he shall have fee the Condition precedent is and therefore no Fee-simple followeth Coke ibid. The statute appointeth that in re-disseisin the Sheriff shall go to the place and there shall take the Inquest If then the re-disseisin is of severall lands in divers Counties so as he cannot be at all at once it is sufficient to take the Inquest at one of them because of the impossibility 40 Ass 23. If a man be bound by recognizance or Bond with Condition that he shall appear the next term in such a Court and before the day the Conuzee or the Conuzor dieth the Obligation is saved And in all cases where a condition of a Bond or Recognizance c. is possible at the time of making of the Condition and before the same can be performed the Condition becometh impossible by the act of God or of the Law or of the Obligee there the Obligation is saved But otherwise in case of a Feoffment as if a man maketh a Feoffment on condition that if the Feoffor shall appear in such a Court the next term that then it may be lawfull for the Feoffor to re-enter and presently after the Feoffor dieth the estate of the Feoffee is become absolute And the reason of this diversity is because the estate of the land is executed and setled in the Feoffees and cannot be returned back but by matter subsequent viz. The performance of the Condition But a Bond or Recognizance is a thing in action and executory and whereof no advantage can be taken untill there is a default in the Obligor Coke com f. 260. a. vide ibid. plura Vltima prioribus derogant Reg. I. C. Leges posteriores priores contrarias abrogant Coke l. 11 f. 62. 63. The last Laws derogate and abrogate the first which are contrary Though the wisdome of the Judges and sages of the Law have all wages suppressed subtle and new inventions in derogation of the Common Law and will not change the Law that hath been used 38 E. 3. 1 so as if it be not altered by Parliament it remaineth still yet as Cato said Vix ulla lex fieri potest que omnibus commoda sit And as Sir Edward Coke rerum progressui ostendunt multa quae initio praecaveri provideri non possint It is impossible for any Law to be which may be commodious to all and the progress and proceeding of things shew and present many things which at the first could neither be presaged nor prevented From whence it proceedeth that no Law can be so absolute but that may in some particulars prove defective and amendable and yet as Ployd f. 369. that Law is reasonable which provideth for the multitude though some especiall persons lose by it which hath been the occasionall cause of the alteration of the Common Law in many points Yet the Common Law hath no controller but the high Court of Parliament and the wisdome and custome of this State hath alwaies had such regard and respect to the Common law that they would by no meanes change it but by the great Councell of Parliament wherein all things are transacted not onely by the prudency of the Prince but by the cheifest and sagest Senators of the whole Nation and that not upon the consultation and declaration of one or two hundred but as Fortescue by more and three hundred elect men by which number the Senate of Rome was ruled who alwaies have been cautious and vigilant not to introduce any forrein Law as Sir John Davis in his Preface observeth That in the Parliament of Merton when motion was made by the Clergy that Children borne before marriage might be adjudged legitimate The great and wise men of England made answer with one voice Nolumus leges Angliae mutari And again in 11 R. 2. when a new course of proceeding in criminall Causes according to the form of the Civill Law was propounded in that unruly Parliament Answer was made by all the States That the Realm of England had not been in former times nor hereafter should be ruled by the Civill Law And therefore for the most part Magna Charta which is the foundation of other Acts of Parliament and other ancient Statutes are but the affirmations and declarations of the Common Law And that whereas the words of the Statute are generall the construction thereof shall be according to the reason of the Common Law Coke com 81 b. 282. b. So cautious have our grave and prudent Senators been not to subject the common-law to any mutations unless for necessary and impulsive causes reasonably arising from the publick mischeifs and inconveniencies which happen in the Common-weal through the injurious abuses of the ancient and former Lawes upon which grounds other Lawes were constituted for the remedy of such mischeifs and inconveniencies which did abrogate the former from whence grew this ground Leges postertores priores abrogant To illustrate this by examples It is regularly true that Statutes in the affirmative shall not take away precedent acts affirmative unless it be in speciall cases As the Statute of Wills 32. 34 H. 8. doth not take away a custome to devise lands as often hath been adjudged So it is enacted that the King shall have Wreckum Maris per totum regnum yet this shall not take the wreck from one who hath wreck by prescription unless the prescription had been per totam Angliam Coke l 5. in Sir Henry Constables case So the Statute of 21 H. 8. c. 13. enacteth that if one â—ath a Benefice of the value of eight pounds and taketh another and is inducted the first is void doth not take away the Law which was before that if one who had a Benefice with cure did accept another the first is void only that in that case no lapse shall incur without notice Coke l. 4. in Hollands case and in this point is the Statute nothing else but a confirmation and affirmance of the Law before ibid. So the Statute of 23 Eliz. that inflicteth the penalty of twenty pounds by the moneth hath not taken away the Statute of 1 Eliz. which hath given the forfeiture of twelve pence for every Sunday and Holy-day but both shall be paid the twelve pence onely to
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
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