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
yet it is in danger of the words of the Act. In an appeale brought by the wife of the death of her husband the son being an abettor shall not render damages but shall avowe the abettment as neer in blood Cuique natuâ—ale est id quo'd procreavit tueri Ployd 304. a. As matrimony is necessary betweene man and woman and that there is a naturall desire in them and all other living creatures to procreate and relinquish a thing like unto themselves id non animi judicio not by the arbitrement of the mind nor as a thing indifferent which a man may doe or not doe but is a naturall appetite to which nature urgeth us so hath nature instilled love in the procreator to the thing procreated which urgeth him to have a care to the education of the thing procreated to provide for him all things necessary and to defend him against all perils and therefore hath the common law given to the father the custody and education of his son and if any one take him from him he shal have the writ against him Quare filium heredem suum rapuit and that law is in satisfaction of nature but in his writ he must say Cujus maritagium ad se pertinet because the marriage of his son and heire and of his daughter and heire appertaineth to him who being once married he cannot have this Writ 11. H. 4. 23. M. 33. H. 6. 55. Fulb. l. 1. 80. And if a man taketh way another mans son and heire apparent and bestoweth upon him good aparrell and the father seiseth his son he shall not be impeached for taking of the apparrell for in that he may make a good justification for the taking of the body it must needs extend to the apparrell of the body because the law considereth not bare and elementall bodies but bodies apparrelled 12. H. 4. 16. 8. E. 2. Trus. 31. 32. E. 3. Guard 32. Ibidem Amor descendit Ployd 293. b. Osbornes case it is an old saying that love descendeth which by experience is found to be more true then to ascend and for that reason the law which greatly tendreth the preservation of infants hath appropriated the custody of them and their lands in Soccage to their parents because they love their children best and in default of them to their other Ancestors more neere in blood and in naturall affection to them and that is for the profit of the infant for the guardian must keep the infant with the land and of the rest of the profits give an account to the infant and if the guardian die the executors shall not have the guard of the infant because they are voide of such naturall affection but the neerer Ancestor shall have it Quaelibet haereditas naturaliter quidem ad haeredes descendit nunquam autem naturaliter ascendit Glan l. 7. c. 1. Every inheritance doth naturally descend to the heires but never naturally ascendeth Coke l. 3. f. 4. in Ratcliffs ease of which Bracton giveth this reason quod quasi ponderosum quiddam jure naturae descendit nam omne grave fertur deorsum that as a certaine ponderous thing it by the law of nature descendeth for every heavy thing descendeth downewards to which this reason may be added that as the affection of love so doth the effects of love descend for as Aristotle the reason why parents love is so fervent and permanent to their issues is because love doth descend and their descending love appeareth in that they make provision for the present sustenance of them and future maintenance and continuance of their name and therefore as Mr. Ployden saith it is a great blessing of God upon Parents to have issue male to whom they may leave the fruits of their labours and establish their estates and inheritances in their names Ployd 305. b. to which by love and naturall instinct they are incited But on the contrary as the love and provision of children towards their Parents doth not naturally ascend for the thing procreated doth not actually provide for the procreator where it is sui juris so there estates and inheritances should not ascend and therefore as Mr. Littleton it is a maxime in our law that inheritance can lineally descend but not lineally ascend wherein the civill law unnaturally differeth from the common law for the civill law alloweth lineall ascention as well as lineall descent lineall and collaterall descent but not lineal ascention of inheritances as it doth which as Coke is one of the causes of such diversities of opinions in cases of descents in the civill law and the contrary is one of the causes of the certainty of the rules of the common law in cases of descent inheritance Coke l. 3. f 49. b. If there be father Vncle and son and the son dyeth the Vncle shall be heire to the son because inheritance cannot lineally ascend for by this maxime onely lineall ascention in the right line is prohibited and not in the collaterall Coke ib. com f. 11. b. but otherwise it is in case of purchase as if a lease bee made to the sonne the remainder to the next of blood the father in this case shall have the remainder because he is next of blood and so administration may be granted of the goods of the son or daughter to the father and mother as next of kin 5. E. 6. Coke ibidem Haeres est alter ipse filius est pars patris Arist Coke l. 3. f. 12. The heir is another son and the son is a part of the father and for that reason if a man be seised of three Acres of Land and acknowledgeth a recognisance or a statute c. and enfeoffeth A. of one Acre B. of another and the third descend to the heire in this case if execution be sued onely against the heire he shall not have contribution for the heir sitteth in the seat of his Ancestor and though the father be dead yet is he as it were not dead because he hath left his like and the heir is a second same and the son is part of the father and therefore the heire shall not have contribution against any Purchasor though in truth the purchasor came to the land without any valluable consideration for the consideration of purchase is not materiall in this case and though in the case of a recognisance statute or judgement the heire is charged as terre-tenant and not as heire 27. H. 6. Execu 135. because in either of them the heire is not bound yet hee shall not have contribution against the purchasor contrary to the opinion of Finchden in 48. E. 3. f. 5. b. for the reason abovesaid yet is the heire not charged meerely as terre-tenant for he shall have contribution against those who are heires as himselfe Popham f. 171. And for the like reason if a man bindeth him and his heires to pay a certaine sum at a day and dieth it is at the election of
husbands because it is possible for the husband to have got it and whose soever the Cow is his is the Calfe also Swinwood f. 18. And if the issue be borne within a month or day after marriage between parties of a full lawfull age the child is legitimate Coke Com. f. 244. a. And in the legall understanding of the common Law he is said to be haeres who is ex justis nuptijs procreatus borne of lawful matrimony haeres legitimus est quem nuptiae demonstrant and he is a lawfull heire whom marriage demonstrated so to be Coke ibidem f. 7. b. Coke l. 7. f. 44. a. One who is engendred in avowtry during the coverture is a mulier by the temporall and common Law though a bastard by the spirituall Law Jus sanguinis quod in legitimis successionibus spectatur ipso nativitatis tempore quaesitum est Reg. I. C. The right of blood which is regarded in lawfull successions or inheritances is found in the very time of the nativity and therefore jus primogeniturae the tight of the elder Brother-ship in the cause of inheritance is principally to be respected because it is in the eldest Son and his issue per modum substantiae and that which is in any person per modum substantiae is inseperable from him and cannot be extended to any other besides it is against the Laws of proximity of degrees that those which are in a remote degree should be preferred before those of the next degree and therefore in all common weales for the most part proximity of blood hath been preferred of which we have a notable example confirmed by the act of Lycurgus the judicious Law-giver as when Eunonus King of the Lacedaenonians had two Sons Polydectes the elder and Lycurgus the younger and Polydectes deceased leaving no Son living at the time of his death the Scepter of the Kingdome was seated in the hands of Lycurgus afterwards when Polydectes Widdow had brought forth a Son Lycurgus did willingly and peaceably yeeld to him the Scepter which act of Lycurgus agreeth fully with our Laws whereby it is ruled that if a man have a Son and Daughter and the Son purchaseth Land and dyeth the Daughter entreth and after the Father begetteth another Son of the same Wife this Son shall have the Land 19. H. 6. b and is also ratified by diverse examples in the successions of our Kings I will instance onely in one and the most illustrious one King Edward the third being deceased Richard the second the Son of his eldest Son obtained the Kingdome and was preferred before John Edmund and Thomas the sons of the same King wheras any of them was more worthy and fit for the Scepter yet is it granted that in succession of regall dignity jus primogeniturae is not constantly observed because in that case the good of the common-weale and commodity of the people is politically to be respected and as the Civilians the good estate of the Kingdome and Subjects is more to be heeded quam sangninis series then the pedigree of blood and so Solomon the younger Brother was advanced before the elder by the hand of David his Father and Roboam preferred Abias his younger Son yet this must be done cautiously and with a good conscience and intention and probably for the utility of the State otherwise it will neither please God nor man yet in the disposing of private estates the Law of Primogeniture is more strictly to be observed because by it confusion and dissention is avoyded which from the contrary doth proceed as is intimated by Coke l. 3. f. 40. b. Wherein our Law excelleth which preferreth the elder Brother and his issue before the younger Brother and his issue in case of descent and that jure sanguinis by his birth right as he is most worthy of blood and therefore as Coke in his com f. 14. a. The male and all descendant from him shall inherit before the female and among the males the eldest Brother and his posterity shall inherit Lands in Fee-simple as heire before any younger Brother or any descending from him whereas by the Civill Law the inheritance is divided among the males Lutleton l. 1. c. 1. There be three Brothers and the middle Brother purchaseth Lands in Fee simple and dyeth without issue the elder Brother shall have the Land by descent so also it is if the youngest purchaseth Lands in Fee and dyeth without issue the eldest shall have it jure sanguinis because he is the worthiest of blood Little So if a man enfeoffe another upon condition and the condition is broken and then the Feoffor dyeth without issue his wife privement ensaint and the Brother of the Feoffor enter for the condition broken and after a Son is borne he shall avoid the possession of the Uncle and may lawfully claime the inheritance 9. H. 7. 25. And 9. H. 8. 23. It is said that after two or more descents the heire afterwards born claiming by descent may enter into Land but he shall not have a Writ of account for the meane profits And though Littleton in defence of the custome of Gavelkind by which the issues may equally inherit alledgeth the reason that every Son is as great a Gentleman as the eldest Son is yet as Sr. Edward Coke com a. f. 14. saith Gentry and arms doth not descend to all the brethren alike for the eldest jure primogeniturae shall beare as a badg of his birth-right his Fathers armes without any difference because he is more worthy of blood but all the younger brethren shall give severall differences additio probat minoritatem and the addition demonstrateth and proveth the minority of the issue but by the Statute of 31. H. 8. A great part of Rent is made descendible to the eldest Son according to the course of the common Law for that by the meanes of that custome diverse antient and great families after a few descents came to very little or nothing according to the simile of the Poet In plures quoties rivos deducitur amnis Fit minor ac unda deficiente perit A Flood deduced into little streames Coke ibid. Soone groweth lesse and falleth by that meanes But in cases of purchase it is otherwise a. 15. E. 4. If a man devise land to a man and his heire and the devisee dieth having issue a daughter his wife privement enseint with a son who is afterwards borne the daughter shall enjoy the Land in perpetuum And 9. H. 6. 23. It is said that if the remainder cannot vest at any time when it falleth it shall not vest in him is borne afterwards where another hath entred before 2. Eliz. 190. Pl. 18. If a lease for life be made the remainder to the right heires of I. S. and I. S. is then alive the inheritance passeth presently out of the Lessor but cannot vest in the heire of I. S. for then living his father he is not in rerum natura for non
in Law he is no issue for he that is born of unlawful copulation is not to be accounted among children so it is if a man make a lease for life to B. the remainder to the eldest issue male of B. to be begotten of Jane S. whether the same be legitimate or not legitimate B. hath issue a bastard on the body of Jane S. this Son or issue shall not take the remainder because he is no issue ibidem and for the same cause if after the birth of the issue B. had married I. S. so as he became bastard eigne and had a possibility to inherit yet he shall not take the Remainder Ibidem And though a bastard having gotten a name by reputation may purchase by his reputed and known name to him and his heires yet he can have no heir but of his body and if he hath no issue the Land shall escheate if he purchase any Finch Nomot f. 130. The Pope Emperor and Prince himselfe cannot legitimate a bastard to enjoy any benefit of our Law the Parliament hath onely that power Com. of England f. 242. And it is related by Bodin l. 2. de repub That one Ieane Navarre calling himselfe Count Palatine by virtue of the power he said he had of the Pope made many bastards of France legitimate for which he was condemned by arrest of Parliament as laesae majestatis reus wherein their Law seemeth to accord with ours for it is onely in the power of the King and Parliament to make a bastard legitimate but the King may dispense with a bastard to be a Preist Davis Reports f. 37. a. The civill Law depriveth the adulterous issue of all benefit the Ecclesiasticall Law alloweth things needfull for sustentation but by the Laws of this Realme one may give or devise all to a bastard Swinborne testaments f. 230. And by our Law if a grant be made to a bastard by the name of him who is supposed to engender him it is good if he be known by that name so if a remainder be limited to Richard the Son of Richard Marwood it is good although he be a bastard so in case of purchase a bastard eigne in respect of the subsequent marriage is capable of his reputed Fathers guifts for though by the civill Law his right of Primogeniture is remitted by the subsequent marriage according to the rule subsequens matrimonium tollit peccatum praecedens yet by the common Law he is in it rejected and hee made uncapable of any inheritance by descent though in case of purchase it may be sufficient as 39 E. 3. Richard Thompson having issue by one Ioane before marriage one Agnes and after inter-married with Ioane and made a Feoffment in fee and re-taked the estate unto himselfe for life the remainder to Agnes the Daughter of the said Richard and Ioane and agreed that it was a good remainder without any averrement that shee was known to be their Daughter but it was there objected that a bastard is not their Daughter in Law and therfore the remainder void but Finch den gave the rule and said it is found that the Daughter was borne before the espousalls so that by their espousalls after shee is their Daughter so as though by the common Law shee was not their Daughter yet in so much that she hath colour by the Ecclesiasticall Law which saith that subsequens matrimonium tollit peccatum praecedena it is sufficient in case of conveyance to make the remainder good Coke l. 6. f. 65. a. vide ibidem plura Dominum a possessione cepissi dicitur Reg. I. C. paulus Dominion is said to have his begining from possession and that jure naturali for we gaine Dominion of some things by the Law of nature that is as Cicero hath it veteri occupatione ut qui quondam in vacua venerunt by long occupation and possession of those things into which being void we have entred which no man can take from us but by injury and therefore doe the Civilians derive possession a pedum possessione from the fixing our feete upon any particular thing and by long possession is turned into right longa enim possessio est pacis jus Bracton f. 50. Long possession is the right of peace And therefore in the case of a Charter of Feoffment if all the witnesses to the Deed be dead as no man can keepe his witnesses alive and time weareth all things then violent presumption which standeth for a truth is continuall and quiet possession for ex d uturnitate temporis omnia praesumantur solenmiter esse acta Glanvill for by long continuance of time all things are presumed to be solemnely acted Coke com f. 6. b. And therupon Bracton giveth the rule Longum tempus longus usus quiexcedit memoriam hominum sufficit pro jure Long possession long occupation which doth exceed the memory of man sufficeth for a right l. 4. f. 230. But what measure of time maketh such a right by which a Fee-simple may be attainted diverse have differed in opinions some judging the same to be according to the computation of years from the time of King Henry the first to the Statute of Merton which amounteth to seventy six yeares and others have limited it to an hundred years which according to the civil law is longissimum vitae hominum tempus the longest time of the life of men but the true measure of it according to Mr. Littleton is where things have been used so long as the memory of man cannot remember the contrary that is either by the knowledge and memory of proofe or by record or sufficient matter in writing so as if there be any sufficient proofe of record or writing to the contrary albeit it exceedeth the memory or knowledge of any man living yet is it within the memory of man Coke com 115. a. And as by the course of nature time is the measure and consumer of all things Nullaque res majus tempore rebor habet There nothing is which hath more strength then time So doth Art and Law imitate nature which giveth unto it such power and authority as to change to raise to alter and to establish titles wherein the Civill and the common Law do square for by the civill Law there is required a just title bona fides and continuall possession to make a title of prescription but the common Law onely requireth continuall possession and that naturalis possessio ad praescriptionem sufficit naturall possession sufficeth for a prescription As if a man prescribe to have a rent and likewise to distraine for the same it cannot be avoided by pleading that the rent hath allwayes been paid by coertion or that it began by wrong Coke com 114. a. So Jeptha pleaded prescription against the Ammonites these Lands saith he have we possessed these 700. yeares And the reason why this long usage and prescription was brought in to be of the force and strength to make a right
if an Action of wast be brought by two joynt-tenants the release of one shall bar the other as it is holden 9. H. 5. f. 15. by the Court for in wast the personalty is the principall and though one joynt-tenant cannot prejudice the other in regard of the matter of inheritance or franke tenement yet in regard of the profits of the frank-tenement they may vide ib. plura If husband and wife purchase socage lands to them and their heires of their bodies and they having issue within fourteen yeares of age doe dy in this case if the grandmother of the part of the mother of the issue first seise the Ward she shall have the Wardship and not the grandfather of the part of the father of the issue 8. Eliz. 296. b. because they are in aequali jure and where the right is equall the condition of the possessor is the better To which obiter may be annexed the sage judgement of Augustus who after the civill wars being molested with the complaints of diverse who demanded many places of ambiguous right from the possessors because they severally were given by the Senate Pompey Caesar Lepidus or Augustus to the Souldiers gave sentence for the possessors Duo non possunt unam rem in solido possidere R g. I. C. Vlpiamus Coke com f. 368. a. Two cannot possess one and the same thing fully and wholy for dominion had its beginning from possession and as there cannot be two Lords and Masters of one and the same thing fully and wholly so cannot two fully and wholly possess one and the same thing As if A. of B. be seised of a Mese F. of G. that hath no right to enter into the same Mese claiming the said Mese to hold to him and his heires entreth into the said Mese but A. of B. is continually abiding in the same Mese In this case the possession of the frank-tenement shall alwaies be adjudged in A. of B. and not in F. of G. because where two be in one house or other tenements and the one claimeth by one title and the other by another title the law shall judge him in possession that right hath for two cannot possess one and the same thing fully and wholly But if a man hath issue two daughters Bastard eigne and mulier puisne and dieth seised and they both enter generally the sole possession shall not be adjudged onely in the puisne because they claime by one and the same title Coke ibidem Yet though the possession of one thing cannot be fully and wholly but in one yet the property may be in two as Ployd f. 5. 24. Manwood said it is not strange in our law that two should have a severall interest in one and the same terme and two properties in it for if lessee for yeares grant over his terme to another by deed indented rendting rent and that for default of payment that he shall enter and retaine till the grantee hath paid to him the rent if he doe enter for default of payment and retaine he hath one property and the grantee also hath another property for his interest is not gone but hath a property tel quel such as it is and may have all the property upon payment of the arreares So if one hath a terme for yeares and is bound in a recognisance or statute staple and execution for non pay-ment is sued against him and the terme is extended and a certaine annuall value delivered to the Connusee as it well may be for it may bee sold out-right or extended to an annuall value there the connusee hath one property for the payment of his debt and the lessee another property and upon the payment of the debt shall have the terme again A woman made a lease for yeares of mills in Kent with exception that she should have the profits and there was a great debate whether the exception were good or no because the profits of the mills was all the benefit and in effect the mills themselves but at the last the exception was judged good in law and that the woman should have the profits There if shee enter to have the profits she hath one property and the lessee another property and it is incertaine how many yeares the property of the woman will continue So if one Lease sheep for a time to manure his land or pawn his dog as the case was in 5. H. 7. The owner hath some property and he to whom the Sheep is leased or the dog pawned another Ployd ibid. Possessio fratris de feodo simplici facit sororem esse haeredem The possession of the brother of a fee simple maketh the sister to be heire Littleton Coke com f. 14. b. As if one hath issue a son and a daughter by one venter and a son by another venter and dieth seised of Lands in fee-simple and the eldest son entreth into the land and dieth without issue the Sister shall have the land and not the younger son though the younger son be heire to the father for the possession of the brother of the fee-simple maketh the sister to be heire but the brother must be in Actuall possession and there must be pedis positio a corporall fixing of his foot and entry upon the land and there must be some Act done to make her heire for she is but haeres factus by the actuall possession of her brother for the younger son is haeres natus to the father and if the eldest son had died before he had taken actuall possession the younger son might have entred and had the land as heire to the father but by the possession of the brother she being of the whole blood is made heire But in dignities where no possession can be had but such as descendeth to a man and his heires as in Dukes Earles Barons c. there can be no possession of the brother to make the sister inherit but the younger brother being heire to the father shall inherit the dignity inherent to the blood as heire to him was first created noble Coke ibid. And as Ploydon saith there is a great difference betweene lands in fee-simple and lands tailed in regard of possession for the possession of a brother of an estate taile as heire to his father shall not make the sister to be heire but it shall descend to the younger son of the halfe venter for he ought to have it per formam doni Ployd f. 57. a. And if a Bastard eigne abare in fee-simple land after the death of the father and dieth seised without interruption and his issue enter he shall hold it and the right of the mulier puisne and his heires are bound for ever Ployd ibidem So if a woman seised in fee consent to a ravishor and the daughter which is proxima de sanguine next of blood doth enter there the son after borne shall not take away the title and possession of the daughter So where a
stranger tendreth them mony for the Land and they intending to sell it more deere defer the sale for two yeares and take the profits themselves the heire for the laches and long delay may enter and put them out of the Land 38. Ass Pl. 3. 39. Ass Pl. 3. A man indebted by specialty or upon an account determined tendreth the mony to the Debtee after the day in which it was due and payable and it is refused and after mony is embased it seemeth to many that the debtor shall beare the losse although he had made tender at the very day of payment because he must say vncor prist Dyer f. 83. Pl. 76. Caveat Emptor Coke Com. f. 102. a. Let the the buyer be vigilant and wary what he buyeth for though by the Civill Law every man is bound to warrant the thing that he selleth and conveyeth yet the Common Law bindeth him nor unlesse there be a warranty either in Deed or in Law Ibi. Coke l. 4. f. 26. a. A Copy-holder who is out of possession ought not to sell his Land untill he hath gained the possession and if any one will purchase any title he is not to be favored but in such case Caveat Emptor let the buyer take heed for if any one hath a pretended right and title to Copy-hold Land bargaine and sell it to another it is within the Statute of 32. H. 8. c. 5. vide ibidem plura If I take an horse of another mans and sell him and the owner taketh him againe I may have an action of debt for the mony for the bargaine was perfect by the delivery of the horse Caveat Emptor Nay Max f. 94. If I sell my Horse to another man for ten hundred pounds who taketh his horse againe I shall have all the mony Ibidem f. 95. Qui timent caveant vitent Offi. of Exe. 251. They who feare are wary to shun dangers as an Executors office is dangerous and therefore ought to feare what encombrances fall on him and to keep goods to pay all debts if any should be concealed Non temere credere nervus est sapientiae Coke l. 5. f. 114. b. Not hastely to beleive is the sinew of wisdome and therefore the Law hath appointed the last time in the day to pay mony upon a condition that both parties may certainly meet together which is founded on the experience of the sages least any of the parties should be constrained to make a Letter of Attorny or repose confidence or trust in any other to pay it for him when he will doe it for himselfe And it is wisdome not rashly to trust any Caveat actor Reg. I. C. Let the actor beware what he doth One entreth into Bond to A. that he and A. shall stand to the Arbitrement of I. S. If A. refuse he him-himselfe shall take the forfeiture of the Bond. If a man have a Chappell which is his donation by Letters Patents and he presenteth me his clerk to the Ordinary he shal not make collation afterwards If a Parson impropriate presenteth one to a Church it maketh it disappropriate If he who holdeth his Land by homage and fealty taketh his Land of the King by office found that he holdeth it by forty shillings per annum he shall pay the rent hereafter Abundans cautela non nocet Coke l. 11 f. 6. b. An abundance of circumspection doth not hurt vide ibi Qui sentit onus sentire debet commodum Coke l. 1. f. 99. a. He who beareth the burden and taketh the paines ought to receive the profit as if a Feoffment be upon condition that if the Feoffor or his Heirs pay the sum of 20 l. or to doe any act before a certain day that they shall re-enter in this case if the father dye before the day of paymenr and the daughter for the safe-gard of the inheritance pay the mony or satisfieth the condition in this case the Son after borne shall not devest it for if the daughter had not performed the condition the Land had been utterly lost and therefore in this case a good argument may be made that the daughter shall detaine the Land for Qui sentit onus sentire debet Commodum ibidem vide Hobart Rrep fo 4. in Youngs and Radfords case Ployd f. 514. Trevilian was Tenant in tail of Tenements and he being only seised of such an estate a common recovery was had against him and Avice his wife who vouched over according to the course of common recoveries and it was found that the wife had nothing in the Tenements the husband dyeth the wife shall have nothing of the intended recompence in the case because she had nothing in the Tenements and so could lose nothing If Tenant for life or in Dower do devise the Corn growing on the ground upon the land at the time of their death this is a good Devise and he in the reversion shall not have it 4 H. 3. Devise 26. And the Statute of Merton which saith Omnes viduae possunt legare sua blada is but an affirmation of the common Law which was used in the time of H. 3. 19 H. 6. 6. A man seised of land in see in right of his wife leaseth the land to a stranger and the Lessee soweth the land and after the wife dyeth the Corn being not ripe the Lessee may devise the corn and yet his estate is determined 7 E. 3. 67. A man seised of land in the right of his wife and soweth it and deviseth the Corn growing on the ground and dyeth before it is severed the Devisee shall have it and not the wife 7. Ass pl. 19. One seised of lands in fee hath Issue a Daughter and dyeth his wife Privement Ensaint with a Son the Daughter entereth and soweth the land and before the severance a Son is born and his next friend entereth yet the Daughter may devise the Corn growing on the land If a Mannor be put in execution upon a Statute-merchant and the Conusee sow the land he may well devise the Corn growing on the ground Perkins f. 100. vide ibidem plura Qui sentit commodum sentire debet onus Cok. l. 5. f. 24. He that feeleth or reapeth the profit must bear the burthen and the charges A man leaseth an house by Indenture for years and the Lessee covenanteth for him and his Executors to repaire the house at all times necessary The Lessee assigneth it over to H. who suffereth it to decay the Lessee bringeth an action of Covenant against the Assignee and it was adjudged the action did lye in that the Lessee had taken upon him to bear the charges of reparation the annuall rent was the less which trenched to the benefit of the Assignee and he that enjoyeth the profit must bear the burthen and charges vide ibidem plura Co. l. 5. f. 100. a. The Statutes will have all those which are in perill and which are to take comodity by the
kill her hushand part of which her husband and her Father having eaten were greivously sick whereof her Father complaining to the said Martin Martin stirring the electuary did eate part of it the one and twentieth of May and dyed the 22th of May and it was resolved that Agnes was guilty of the Murther of the said Martin for the Law conjoyneth the murtherous intention of Agnes in putting poyson into the electuary to kill her husband with the event that followed upon it to wit the death of the said Martin for the putting of poyson in the electuary was the cause of the poysoning and death of the said Martin was the event for that is the event which followeth the cause and are called events because they come from the cause and the stirring of the electuary by Martin without putting in the poyson by Agnes could not have been the cause of his death ibidem Frustra expectatur eventus cujus effectus nullus sequitur it is in vaine to expect the event where no effect followeth Coke l. 5 f. 15. b. Cawdrys case As if an excommunication under the Popes bull is not of force to disable any man in England and that if it being the extreame and finall end of any suite in the Court of Rome be not to be allowed in England it consequently followeth that by the antient common Law of England no suite for any cause though it be spirituall arising within this Realme ought to be determined in the Court of Rome for in vaine an event is to be expected of which no effect followeth and that the Bishops of England are the immediate Officers and Ministers to the Kings Courts ibidem Plus virium habent argumenta ex effectis Fons Log. Arguments from the effects are of greater force and therefore doth the Law commonly conster things according to the effects As if a Deed be delivered by an infant it cannot be delivered againe at his full age for it took some effect before and was but voydable 1. H. 6. 4. But a deed delivered by a Feme-covert or a release delivered to one who had nothing in the Land may be delivered againe to wit when shee cometh to be sole or the party to have somewhat in the Land for the first delivery was meerly void and of no effect at all From the whole and the part TOtum praefertur unicuique parti the whole is preferred before either part Coke l. 3. f. 41. in Ratcliffs case As the blood which is between every Heire and his Ancester maketh him Heire for without blood none can inherit and therefore it is great reason that he who hath the whole and entire blood shall inherit before him who hath but part of the blood of his Ancester because by the order of nature the whole is to be preferred before the part And therefore saith Bracton Proptâ—r jus sanguinis duplicatum dicitur haeires tam ex parte matris quam ex parte patris propinquior soror quum frater de alia uxore that from the double right of blood as well from the part of the father as from the part of the Mother the Sister is said to be the neerer heire then the brother of the other wife and Britton saith that the right of blood in this case maketh the Female to exclude the male ibidem And therefore by the common Law of England if a common person have issue a Son and a Daughter by one venter and a Son by another venter and dyeth seised of Lands in Fee-simple and the eldest Son entereth into the Land and dyeth without issue the Sister of the whole blood shall inherit to him and not the brother of the halfe blood Coke ibidem 40. b. Vbi major pars ibi totum where the major part is there is the whole 21. E. 4. 27. 14. H. 8. 27. The Deane and major part of the Chapter maketh the Croporation and their act is the act of the Corporation though the others doe not agree which accordeth with the rule of the Canon Law authoritas potestas capituli consistit in majore pare ejus saniâ—ri sic totum capitulum facere dicitur quod facit major sanior pars Panorâ—â—tanus The authority and power of a Chapter consisteth in the greater and sounder part and so the whole Chapter is said to doe what the major and sounder part doth But here this difference is to be taken that in Colledges and Corporations the major part of the Members ought to give their voices in a distinct number and not in a confused and incertaine number as in the election of the Knights of Parliament or the Coronors or Virderors in the County Court the greater voice and acclamation is sufficient to shew the assâ—nt of the greater part of the Free-holders who make the election Ployd 126. a. So as the major part of the Chapter doth consent in making this confirmation and this consent ought to be expressed by the fixing of the Seale 14. H. 6. 17. So ought they to sit in one place and at one time for otherwise it may be called an assent and not a consent where the lease ought to be confirmed by the assent and consent of the Deane and Chapter for as the body naturall cannot make any perfect act if it be dismembred no more can a body politique but the persons which are members of it ought to be capitulariter congregati in a certaine place otherwise if they be scattered or dispersed in severall places that which they doe shall not be said to be the Act of the Corporation but factum singulorum as 15. E. 4. 2. a. where the major part of the Monkes had subscribed their hands to a deed of the Abbot but it was not expressed that it was done with the assent and consent of the Covent it was said to be done by those particular persons which had subscribed and not by the Corporation and such a deed shall not bind the house yet the Deane and Chapter are not confined to their Chapter-house but they may meet to and make their Acts elsewhere and therefore it is holden 21. E. 4. 26 That where a Deed did beare date in domâ— capituli averrement might be that the deed was delivered at another place yet the major part ought to be present in the same place and therefore the election of Coroners ought to be in pleno comitatu as appeareth by the Writ de coronatore eligendo So the consent of the major part of the Chapter ought to be at the same time simul semel and not scatteringly and upon severall daies for it is not a consent unlesse it be simul for consensus est voluntas multoâ—um ad ques res pertinet simul juncta for consent is the will of many joyned together concerning those things which appertaine unto them Davis f. 48. vide ibidem plura Turpâ—s est pars quae cum suo toto non convenit It is a foule and deformed
remainder is appointed in fee to the right heires of I. S. who dieth having a daughter which entreth after the death of tenant for life there the son after borne shall not recover the lands before vested in the daughter as purchased for thereit is a fee simple to which the son after born hath no right for the lands were in none of his Ancestors before But where the estate is an estate taile the son ought to have it per formam doni As if a feme which suffereth a recovery by covin contrary to the Statute of 11. H. 7. is defeated by entry of the daughter tenant in taile the son borne may enter and oust the daughter for that the title in taile is in him because the statute saith he shall enjoy it according to the title which is in taile and therein the common proverb is verified One shall beat the bush and the other have the bird As if a man hath land by descent of the part of the mother and maketh a feoffment on condition and dieth without issue and the heire of the part of the father entreth the heire of the part of the mother may oust him Ployd 56. b. and 57. a. In Wimbish case quod vide Infinitum injure reprebatur Coke l. 6. f. 45. What is infinite is reproved and rejected in law As if a man have a debt by simple contract and taketh an obligation for the same debt or any part of it the contract is determined 3. H. 4. 17. 11. H. 4. 9. and 9. E. 4. 50. 51. So if a man have a debt upon an obligation and by course of law hath a judgement upon it the contract by specialty is changed into a thing of record for if he that recovereth should have a new Action or a new judgement he may have infinite Actions and infinite judgements to the perpetuall charge and vexation of the defendant and he shall not have a new Action or a new judgement for what is infinite is rejected in law So upon every judgement the defendant shall be amerced and if he bee a Duke Marquess Earle Viscount or Baron he shall be amerced 100 l. and so the defendant should be infinitely amerced upon an obligation which shall be mischievous Ibid. And lib. 7. f. 45. b. It was resolved in the Court of Wards by the greater part that a Bill of reviver upon a bill of reviver shall not be admitted by reason of the infiniteness which is rejected in law And lib. 8. f. 16. b. When the first office is found against the King and the melius inquirendum also the King is bound nor to have any melius inquirendum for the same matter because there should be no end of it and that such writs might issue infinitely and infinity is condemned in law Nihil tam conveniens naturali aequitati quam voluntatem domini volentis suam rem in aliam transferre ratam haberi Bracton f. 18. God hath given to man all the land terram dedit filiis bominum So men by Gods endowment are made Lords of the land and what property a man hath in lands by law by the law of God also he hath dominion of it and therefore every man who is the lawfull owner of land may grant to what person in what manner and for what time it pleaseth him for if the land be subject to man then is it subject to his will for the will cometh from the mind which is the principall part of man because it directeth the body and all things he hath and if his land be subject to his will this his will is a sufficient consideration by which his land may pass as his will is and there is no greater consideration then the will Ployd f. 308. b. And nothing is more agreeable to naturall equity then to ratify the will of the Lord willing to transferr his substance and estate over to another And therefore at the common law the intention and will of the parties was the direction of uses for they were onely determinable and to be adjudged by the Chancellor which is the Court of conscience and equity and there is nothing more agreeable to equity then that the will of the Lord or owner and the meaning of the parties should direct the uses 31. H. 16. Tit. subpaena Fitz. 23. A man being ceste que use and having one sole daughter declared his intent and meaning to the Feoffees that after his decease his daughter should have his land and for it question was made in the Chancery whether the limitation of that use made to the daughter might be revoked and in reasoning of that case Fortescue held opinion that if ceste que use had issue a daughter and being sick declared his intention to his feoffee that his daughter shall have his land after his decease and after hee recovered his health he had issue a sonne now saith hee it is good conscience the sonne should have the Subpaena because hee is heire for conscientia dicitur a conset scio quasi simul scire cum Deo that is to know the will of God so neere as reason will and the intention of the parties is to direct the uses according to a conscionable and benigne construction Coke l. 1. f. 100. a. b. vide ibidem plura As a gift in taile may bee made upon condition that tenant in taile may alien for the profits of his issue and good and hee may alien notwithstanding the Statute of W. 2. because in that case voluntas donatoris observatur The will of the Donor is observed Coke com 224. b. If Lands be given to B. and his heires Habendum to him and the heires of his body or if given to him and the heires of his body Habendum to him and his heires he hath estate taile and a fee expectant but if Lands bee given to B. and his heires if B. have heires of his body and if he die without heires of his body that it shall revert to the Donor it is an estate taile and the reversion in the Donor for voluntas donatoris in charta doni sui manifeste expressa est observanda The will of the Donor manifestly expressed in the Charter of the gift is to be observed Coke com f. 21. a. If a common person doth without consideration give to I. S. his goods indefinitely all his goods doe pass 21. E. 4. 25. Alba of Waltams case by Brown and Genny If the King doe grant to one lands ex mero motu and though his Highnesse doth rehearse some consideration in the patent of his grant which is not true as if the consideration bee that whereas the Grantee hath done his Majesty good service on the Sea or beyond the Sea or in his Wars though the consideration bee meerely supposed and therefore no good consideration in Law yet the words ex mero motu doe make the Grant good 26 H. 8. 1. by Fitz. And if a common person doe by deed
suerum cum averijs Abbot Conventus renounceth all the Common which he hath used to have of his Cattle with the Cattle of the Abbot and Covent and that release of Common was there taken void because he did not shew to whom he renounced the common yet there was a full intent for he had common in the Land of the Abbots and he had intent to release it to him but for the incertainty it was void And a Lease was made to Baron and Feme and the reversion of the Land that the Baron held was granted and it was held void notwithstanding the intent because it missed of the certainty of the particular estate H. 13. E. 3. Fitz. grants 63. And so where there were Lord and tenant of three acres and the Lord granted the signiory which he had out of one Acre it was held void in 17. E. 3. notwithstanding the intent because his intent did not agree with Law and so where a man holdeth of one by Castle garder Homage and Fealty and he granteth to another all his services it was held in 31. E. 1. that the Castle-garder cannot passe because he did not grant such a Castle but reserved it and therefore he who hath not the Castle cannot have the Castle guarder so his intent in granting al the services could not make all to passe because it was not according to Law and so the Law ruleth the intent and the intent not the Law Ployd ibidem in Throckmortons case Coke l. 1. f. 84. b. A man giveth Land to M. and 1. his Sisters and to the heirs of the bodies of them lawfully begotten by which they had a joynt estate for life and severall inheritances and the Donor intending that neither of them should break the Joynture but the Survivor should have all per jus accrescendi added this clause sub hac forma that shee that should longest live should have all the Land but because his intent is contrary to Law for this cause if the Joynture be severed by fine the Survivor shall not have the part so severed by the said clause which he hath inserted of his conceit and his own imagination contrary to Law and reason ibidem But in Wills the intent shall be observed and onely thought of because the Testator had no time to order all things according to Law by presumption but is suddenly made oftentimes and so the diversity Ployd f. 162. b. And therefore Ploy f. 414. a. The intent in devises maketh estates to passe contrary to the rules of the common Law in deeds and other gifts As if I devise Land to one A. for life whereas there is not any such the remainder in fee he in the remainder shall take the Land though there be no estate precedent And 34. E. 3. one had issue a Son and Daughter and deviseth Land devisable to one for life upon condition that if the Son disturbe tenant for life or his Executors of their Administration that then the Land shall remaine to the Daughter and dyeth the Daughter after the death of the tenant for life bringeth a Formedon in remainder against the son alledgeth that the tenant had disturbed the Tenant for life and the Executors and the Tenant traversed it upon it issue joyned and the condition took the fee out of the Son and put in the Daughter by allowance in Law in performance of the intent of the Devisee though the remainder did not vest when the first estate took effect Ployd ibidem Coke com f. 322. a. b. If a man lease Lands devisable for life c. the reversion by his testament in fee c. and dyeth and then the Tenant maketh wast the Devisee shall have a writ of Wast although the Tenant never attorned because the will of the Devisor made by his will shall be performed according to the intent of the Devisor and if the Tenant will never attorne then it shall never be performed and therefore he shall have an action of wast or distraine without Attornement Littleton for it is a maxime of the common Law ultima voluntas testatoris est perimplenda secundum veram intentionem sufam Coke ibidem for if a man devise his Tenements to another by testament Habendum sibi in perpetuum and dyeth and the Devisee entreth he hath a Fee-simple causa qua supra and yet if a feoffment had been made to him by the Devisor in his life of the same Tenements Habendum sibi in perpetuum and livery and seisin upon it made he shall have an estate onely for terme of his life Littleton Ibidem Coke com f. 9. b. Though by the common Law an estate of inheritance may not passe without these words Heires yet in devise it may as if a man devise twenty acres to another and that he shall pay to the Executors for the same ten pound he hath a Fee-simple by the intent of the Devisor albeit it be not the value of the Land 21. E. 3 16. So if a man devise Lands to give or to sell or in feodo simplici or to him or his Assignes for ever in all these cases a Fee simple doth passe by the intent of the Devisor but if the devise be to a man and his Assignes without saying for ever the devisee hath but an estate for life if I devise Land to one sanguini suo it is a Fee simple but if it be semini suo it is an estate tayle ibidem Exception Coke l. 1. f. 85. 86. in Câ—rbets case It was ruled by all the Justices that such an estate which cannot by the rules of the common Law be conveyed by act executed in his life by advice of counsell learned in the Law such an estate cannot be devised by the will of man who is intended in Law to be in ops consilij as if I devise Lands to one by will in perpetuum he hath a fee for such an estate may be conveyed by estate executed but if I devise further that if the Devisee doth such an act that then another shall have his Lands to him and his Heires that is void because such limitation if it was by act executed is void for as Dyer f. 33. pl. 12. A man cannot devise an estate in fee to one and if he doe not such an act his estate shall cease and another have it for when he hath disposed the estate in fee he hath not power in the same will to devise it to another and f. 4. pl. 7. when the intent of man who maketh a testament doth not agree with the Law the intent shall be taken void as if a man devise his Land to H. in fee and that if he dye without heir that M. shall have the Land this devise is void because one Fee-simple cannot depend upon another in law the same law is if the devise be to the Abbot of Saint Peter de W. where the foundation is to the Abbot of St. Paul
Coke com f. 25. a. A devise cannot direct an inheritance to descend contrary to the rules of the Common Law as if a man devise Lands to one and the heires males of his body and hath issue a Daughter who hath issue a Son the Son shall not inherit as heire male because he must convey the descent from the heires males for though a devise may create an inheritance by other words then a gift can yet can it not direct an inheritance to descend contrary to the rule of Law and no intent of the devisor appeareth that the Son of the Daughter should against the rule of the Law inherit vide Ployd f. 414. b. So if a gift be made to a man and the heirs females of his hody and hath issue a Son who hath issue a Daughter this Daughter shall never inherit vide ibidem plura Prâ—ximus sum egomet mihi Ployd f. 545 a. It is the naturall order to karve himselfe before he karve another and charity beginneth at home And therefore in legacies it is reason that the Executors shall have preferment of satisfaction before others and the Law maketh allowance to them before any others because as Lit. faith they represent the person of the Testator and Coke com f. 209. b. The Executors doe more represent the person of the Testator then the heire doth to the Ancestor for though the Executor be not named in Mortgage yet the Law appointeth him to receive the mony but so doth not the Law appoint the heire to receive the mony unlesse he be named and therefore if the Obligee maketh the Obligor his Executor it is a release in Law and if the Obligor make the Obligee his Executor the Action is gone for they are as it were the same person in law whence the law maketh allowance to them before any other For if a man devise to A. 20 l. and to B. 20 l. and to C. 20 l. and maketh his executor and dieth having goods only to the value of 20 l. now it is in the election of the executor to which of those three he will pay the 20 l. and if he pay it to one the other cannot contradict it neither hath he any remedy for his legacy so by the same reason if one of the three be made executor to the testator the law saith he may and will retaine the 20 l. in satisfaction of his legacy and the law alloweth of it for it is reason that he be next to himselfe and have regard to himselfe before another And this is the reason of the case in 12. H. 4. f. 21. where in debt upon an obligation against the heir he pleaded that the Plaintiff was executor to Lancestor which deed he put before them and administred certaine goods and Chattels to the value of the debt and more and retained the same summe with him in the name of payment and demanded judgement if Action And Hull said that if he did not retaine the same to himselfe and might have retained it and did not he shall be barred for a man is bound to be next to himself and this was the opinion of some of them for which he pleaded there that he adminstred no goods after the death of the Testator vide ibidem plura in Paramers case And for the same reason doth the law in all reciprocall acts respect mutuall recompence and consideration for if there be no consideration why should they be made Doct. and St. and it is supposed there was error in such Acts because there is no consideration of profit for every one is next unto himselfe ad suum lucrum satis sapit is sufficiently wise to project his owne emolument And therefore have considerations a great effect in lawes and customes for consideration is the beginning of all customes the grounds of all uses the reason of all rights and the causes of all duties For without consideration nothing is wrought by any conveyance no interest transferred no right removed nor duty accrued and no custome hath continuance As if the Lord of the Manner prescribe that every one who passeth the highway which lyeth in his Mannor shall pay 12. d. to him for his passage this is void and not upon good consideration but if he prescribe to have a penny of every one that passeth such a Bridge which the Lord of the Mannor doth use to repaire this is a good prescription Calthrope Copy-holds f. 35. and 36. And therefore is consideration described by Dier f 336. to be the cause or occasion of a meritorious recompence either in deed or law for all contracts and bargaines have quid pro quo contractus est quasi actus contra actum and must have quid pro quo Coke com f. 47. b. And so it is in exchanges annuities pro consilio impendendo or service rents services and tenures for dâ—meanes of Lands as Frank-almoigne Homage-auncestrell for warranty and acquittall commons for cause of vicinage or service Devise of a woman causa matrimonij praelocuti so the manner of a gift to doe such a thing or to make such a thing Considerations are either executory or executed and in considerations executory the recompence failing the Feoffment or grant ceaseth as a feoffment to instruct the feoffor in one mistery or Art if the Feoffor dieth before instruction the heir shall re-enter 21. E. 3. Grant of an Office and for the executing it a fee if the office be determined the fee is determined M. 5. E. 4. 7. and 20. E. 4. If a woman give land causa matrimonii prelocuti and he will not marry her she shall have a writ to recover the land Ployd f. 58. a. If a man make a lease for yeares rendring rent the lessee needeth not pay any rent if the Lessor had nothing in the land at the time of the lease because he had not quid pro quo Coke com f. 47. b. If I grant an annuity pro consilio impendendo if he wil not give me councell I must stay my annuity Ployd 144. b. An usuall and accustomed attendance of a corodian upon the Soveraigne of a monastery upon festivall daies determineth the corodie it being a reward for attendance Exchanges not executed by each party at the first is defeasible 9. H. 4. A portion of rithes granted by indenture for ever without cavillation or contradiction and an annuity granted for the aforesaid portion So to have a way for my life and I grant an annuity of 20 s. without limitation the annuity shall endure but during my life Dier 336. 337. Where no consideration is expressed there the consideration may be averred Dier 146. Vellies case A rehersall of a consideration past whether it be true or false shall not dissolve the gift as because he served me in the Wars beyond the Seas although it be false it is not materiall Bracton in modis donationum and so in the case of the King Dier f. 337. If A. enfeoff B.
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
is that which is called Tenure of land in which reservation he had four serviceable Institutions suitable to the state of a Conqueror 1. Marriage of the Wards Male and Female 2. Horse for service 3. Homage and Fealty And fourthly Primer Seisin Bacons uses f. 30. vide ibidem plura But Sir John Davis is of opinion Davis 21. f. 41. that though William the Conqueror made a more absolute and entire Conquest of England then Henry the second did of Ireland yet he did not seise all and had not the actuall possession of all the lands within the Realm of England vested in him by the Conquest yet he acknowledged that the book of Domesday which is an exact discription of all the Realm was made in the time of the Conqueror and that by it appeareth that the Conqueror had certain lands in Demesne which lands were in the hands of Edward the Confessor and are intituled Terrae Edwardi regis and other lands which himself had seised upon the Conquest and are entituled terrae regis and called them the ancient Demesnes of the King and of the Crown of England but he maketh no mention of the lands which he conferred on the Normans which without doubt were very great and whom by Mannors as well as by Honours he made predominant in England as to Hugh Lupus the son of his Mother Lotte and one Hoclewin a Noble man of Normandy whom she had married he gave the Earldome of Chester to hold of him as freely by his sword as he held the Crown of England by vertue of which Grant the said Hugh ordained under him four Barons B. Cr. f. 34. such an honour as no Subject in England ever enjoyed the like which also is manifest by the Grant he made to Warren a Norman of principall qualitie of the Castle of Shirburn in Norfolk B. cr f. 33. which afterwards he restored to the Heir because he had never born Armes against him by which this consequence may probably be inferred that notwithstancting his universall Conquest he had such a moderate respect to those who were neither Actors nor Opposites to his atchievement of the Crown that though upon suspitious informations he had by Grants deprived them of their estates yet in consideration of their submissive homage and fealty he gratiously restored them But to the point in hand upon this Conquest the ancient Lawes did seem to be silent Co. l. 3 71. ad lectorem for he abrogated many of them and in their stead brought in other Lawes which Sir Edward Coke confesseth efficacissima ad regni pacem tuendam were effectuall and forcible to maintain the peace of the Kingdome commanding them to be written in French and also that all causes should be pleaded and all matters of form dispatched in French thereby intending to make the Normans Language as predominant as their persons and therein intimating the Romans who upon their Conquest of any Country as well as England introduced and used their Language in all matters of state and Courts of Judicature both which are altered and changed by our Parliaments as an ancient badge of conquests and servitude So Edward the first made a Conquest of the Dominion of Wales and changed their Lawes and Customs as he hath expressed in his Charter as the Statute of Rutland whereas to their Lawes and Customes he saith Quasdam illarum de consilio procerum regni nostri de levimas quasdam correximus ac etiam quasdum alias adjiciendas faciendas decrevimus c. Some of them by the advice of the Nobles of our Kingdome we have abolished some we have corrected also some we have decreed to add and make Optimi ducis est Scire vincerâ— cerdere prudenter tempori Coke com f. 71. a. It is the part of an excellent Captain to know and to overcome and wisely to yeild unto the time Men must not fight onely with War-like Weapons and Engines but with the force of his wit and ingeny for dolus cunning and policy is much used in military affaires and standeth in equall ballance with strength and might according to the poeticall sentence Nil refert armis contingat palma dolove Nam dolus an virtus surit quis in hoste requiret By might and slight to conquer yea or no It is no matter for either in a foe Who doth require Nay often times prudent subtlety prevaileth more in such War-like enterprises then might and strength of hand and therefore are Stratagems more commonly more commodious then plain and equall encounters which a compleat Generall will alwaies practise upon a convenient occasion as Vegetius prescribeth Boni duces non aperto morte praelium in quo est commune periculum sed ex occulto semper attentant ut integris suis viribus quantum possint hostes interrimant certe vel terreant Good Captains will not fight in open field in which the danger is common and equal but will invade them unawares that with all their forces in what they can they may either destroy the enemy or otherwise put them into a fear and fright And therefore the Lacedominans when they over-came the enemy by Stratagem did sacrifice to Mars an Oxe but when by open strength a Cock of which Plutarch giveth the reason that so they might accustome their Leaders that they should not onely be valiant but also by subtle wiliness which is requisite in an Emperor they should excell in Stratagems And which by the Law of God is more to be desired for God commanded Joshua Josh 8. to lye in ambush for the City of Aye behind it and so did David when he was to fight with the Philistims Thou shalt not go up but fetch a compass behind them and come upon them over against the Mulberry Trees So it is a cunning policy in the besieged that they pretend to abound in those things which they most want So the Romans when the Capitall was besieged by the French and were pressed with the extream necessity of famine did cast down loafes of bred among their enemies Val. Max. l. 7. c. 4. that they might seem to abound in provision by which device the enemy was induced by compact to leave the siege And so in such a siege it is a commodious thing to a Captain to move in treaty of agreement and to make truce with the enemy for certain daies which usually maketh the enemy more negligent so as he may the more easily get out of their hands By this way Sylla delivered himself twice from the enemy and by the same deceit Asdruball in Spain got out from the force of Claudius Nero who had besieged him Match l. 6. f. 89. vide ibidem plura Lib. II. MISCELLANEA or an Hotch-pot Or divers scattered grounds concerning the reasonable construction of the LAW SECT I RAtio est anima legis Coke com f. 394. b. Reason is the life of the Law for then we are said to know the Law
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