amercement is pardoned vide ibidem The husband and wife make a lease by Deed the husband dyeth the wife accepteth the rent if the Lessee lose the Deed of the Lease the wife shall avoid it 15. E. 4. 17. Coke l. 1. f. 2. Buchuâ—sts case If the Feoffor make a Feoffment with warranty the Feoffee shall not have the Charters unlesse by expresse grant but the Feoffor shall have all the Charters and Evidences which are materiall for the maintenance of the title of the Land and upon which he may maintain his warranty paramount but if the warranty be determined he shall have them no longer Ployd f. 382. a. Nevills case The King grants to two for their lives and the life of the survivor of them the Sheriff-wike of Chester and one of them was attainted of high Treason all the Office was forfeited because the Office was entire and could not be severed ibidem The King granteth the Office of the keeper of a Parke to two and the one faileth in discharge of his duty the whole fee shall determine so it is if an annuity be granted to two for Counsell and one of them refuse because the Office and Grant is entire and cannot be severed and the cause ceasing but in one the whole annuity shall cease Exception Dyer 320. Pl. 13. An Arbitrement was between two of diverse things and among others there was one article that one party should have yearly for the space of six yeares twenty shillings toward the keeping and honest education of A. B. and A. B. dyeth before the fourth year of the sixth yeare yet the payment of the 20 s. shall not cease during the six years which is a certaine terme and is a duty to the party himselfe towards the finding of A. B. Dier 141. Pl. 44. King Ed. 6. granteth to the Lady Mary his Sister the Mannor of D. for terme of her life according to the Tenor and effect of the last Will of H. 8. which was that shee should have it so long as she was unmarried afterwards she granted a rent charge out of that Mannor after which grant K. E. dieth by whose death the reversion came to her being Queene and afterwards shee married Philip King c. and it was doubted whether the rent charge should remaine or no. Davis 3. a. b. In ancient times a great part of tenements were holden of their Lords by Socage which was that the Tenants ought to come with their sokes by certaine daies by the yeare to plow and sow the demesne of the Lords and because such workes were made for the livelyhood and sustenance of their Lords they were quitted of all other services and after such services were changed into monies by consent of the Lords though the Lords did alien their demesnes and had no lands to plow or sow yet payed they their rents yearely to the Lords so the Church and religious houses after the procuration of Victualls was reduced to a certaine sum did pay it to the Ordinary yearely though he made no visitation so as the rule The cause ceasing the effect also ceased held not in those cases So Coke l. 4. in Capels case it was resolved that where a man held certaine land by rent for Castle-guard though the Castle was ruined or decayed yet the rent remained and pro doth not import a condition as in the case of an annuity granted pro consilio impendendo but a full and perpetuall recompence and satisfaction Vide Davis plura ibidem In jure non remota sed proxima causa spectatur Bacon Max. f. 1. 2. In the Law the next and not the remote cause is respected For it were infinite for the law to judge of the cause of causes and therefore judgeth of acts by the immediate and next cause as Bar. Empsons case f. 2. An annuity is granted pro consitio seu impendendo and the grantee committeth treason whereby hee is imprisoned that the grantor cannot come unto him for counsell yet the annuity is not determined by this non fesans for the law looketh not on the remote cause to wit the grantors offence which was the cause of the imprisonment but excuseth it because his not giving of counsell was compulsory and not voluntary in regard of the imprisonment which was the immediate cause So if a parson maketh a Lease and be deprived or resigneth the successors shall avoid the Lease for the law regardeth not the cause of the deprivation or the resignation which is the act of the party but the act of the Ordinary in the admission of the new incumbent 2. H. 4. 3. 26. H. 8. 2. A foeffment in fee upon condition that the Feoffee shall enfeoff over and if the feoffee bee disseised and a dissent case and then the feoffee bindeth himselfe in a statute which statute is discharged before the recovery of the Land this is no breach of the condition because the land was never lyable to the statute and the possibility which was the remote cause that it should bee lyable upon the recovery the law doth not respect Coke l. 2. Winningtons case This rule faileth in covenous act where the law taketh heed to the corrupt beginning and also in criminall acts where the law principally regardeth the first motive vide ibidem plura Nihil magis consentaneum est us iisdem modis res dissolvatur quibus constituitur Reg. I.C. and Bracton Nihil tam conveniens est naturali aequitati unumquodque dissalvi eo ligamine quo ligatum est Cok. l. 2. f. 53. a. There is nothing more agreeing to naturall equity then that every thing should be dissolved by the same meanes it was bound As no estate can be vested in the King without matter of record so no estate can be devested out of him without matter of record Ployd f. 553. Walsinghams case and 180. Nevils case 12. H. 7. and many other bookes for nothing is so convenient to naturall equity then that every thing should be dissolved by the same band it was tied and Coke l. 4. f. 57. b. In case of attainder and office the King is entitled by double matter of record and therefore the party grieved ought to avoid it by double matter of record and not by single travers or Monstrans de droit but is driven to his petition vide ibidem plura But when a man avoideth the Kings title by as high a matter of record as the King claimeth though the King be entitled by double matter of Record he may have it by way of Plea as one is attainted of treason by Parliament an office findeth his lands by which the King seiseth them the party may alledge restitution by Parliament and a repeale of the former Act 4. H. 7. 7. b. Finch Nomot 12. Coke l. 5. f. 26. a. Indentures being made for declaring of the uses of a subsequent fine recovery or other assurance to certaine persons and within a certaine time and to certaine uses are but
Ed. 1. before the Statute de prerogativa regis which was made in the seventeenth year of E. 2. a long time after Britton writ which was but a declaration of the common Law Coke l. 4. f. 126. a. Neither doth this impugne the Maxime of the common Law for in this case he that is non compos mentis in no Plea that he pleadeth shall stultify or disable himselfe but all this shall be found by office by the inquisition and verdict of twelve men at the suite of the King who are not concluded to say the truth and such and office when it is found shall have relation a tempore nativitatis to avoid all mesne Acts made by one who is non compos mentis as Feoffments Gifts Leases Releases c. And after such office found if he be sued in an Action upon an obligation or writing which he hath made the King by his writ so long as the office be in force reciting the office shall command a Supersedeas to the Justices where the suite is commenced but if one of non compos mentis dye before office found after his death no office may be found and in this sense is the rule of Bracton true furiosus stipulari non potest nec aliquid negotium agere quia non intelligit quod agit A mad man cannot promise or contract for any thing or doe any businesse because he understandeth not what he doth but all such Acts may be avoided either by the King or his Heires Coke ibidem f. 126. a. b. With which the civilian rule accords furiosus nullum negotium contrahere potest But in case of non compos mentis the King hath not any interest in the Lunatick as he hath in the Idiot for that the Lunatick may recover the memory which he hath lost and therefore in the case of an Idiot the Law saith Rex habebit custodiom the King shall have the custody but in the case of non compos mentis Rex providebit the King shall provide one to have a care and charge that he that is non compos mentis and his family shall be maintained and that nothing shall be spoiled without taking any thing to his owne use but all to the use of the non compos mentis and his family and that he shall not cut down trees but for necessary House-boot Plow-boot and Cart-boote and to repaire ancient Pales as appeareth in the case of Dyer 25. b. In Trespasse against Homes quare clausuum fregit and did cut down Trees in Padington c. of one John Francis c. the Defendant pleaded that the said John Francis was a Lunatick by which the King seised his Lands by commission c. and by his Letters Patents granted custodiam gubernationem praedict Fr. sine computo reddendo the custody and government of the said Francis without rendring an account c. and he prayed aid of the King and upon demurrer it was denied and the diversity taken between the seiser of the Lands of a Lunatick and an Idiot for in the first case the King nor the Grantee shall not have any profit but they are bound to finde necessaries for him c. by the prerogative of the King but in the other case the King and his Grantee shall have the Lands to his own profit and Fitzberbert held that the Lunatick should have an account when he came to his good memory sed fuit negatum Ibid. f. 26. Pl. 164. But it seemeth by Coke lib. 4. f. 127. that he shal be accountable as a Bayly to him that is not compos mentis or to his Executors or Administrators And the King shal have the protection of an infant as well as of his Land F. n. b. 232. b. But the King shal not have the lands that the Idiot holdeth by copy for that is but an estate at wil by the common law and if the King should have the custody of it it should be a grand prejudice to the Lord of the Mannor and yet notwithstanding an alienation made by the Idiot of the copy-hold after Office found shall be avoided Dyer 302. Coke ibidem f. 126. b. But there are some acts done by a man of non compos mentis that shall not onely bind himselfe but his Heires and Executors also and therefore if he levy a fine or suffer a common recovery or acknowledge a Statute or Recognisance neither his Heire nor Executor shall avoid it for those are matters of record and cannot be avoided by a nude averrement of non sanae memoriae for the inconvenience that thereupon may ensue also such an averrement is against the office and dignity of a Judge for he ought not to take any cognisance of a fine or recognisance of him that is non compos mentis and therefore all acts that he maketh in Court of record shall bind himselfe and all others for ever and shall not have a releife in equity because it is against a ground and principle in Law that no man shall disable himselfe and if the Judge were not compos mentis yet all the Fines Judgements and all other Records which are before him shall be good because they are matters of Records Cbichell Copy-holds Vim vi repellere licet Coke com f. 162. It is lawfull to repell force by force and that by the Law of nature according to the civil rule adversus periculum naturalis ratio permittit se defendere naturall râ—â—son permitteth to defend himself against danger which is manifest in Beasts which though they have not the substance and reason of the Law yet have they a certaine shadow of it and which is not onely observed in Beasts but also in infants and children But yet as Coke in the same place saith must it be done with this caution moderamine inculpatae tutelae non ad sumendam vindictam sed ad propulsandam in juriam with the moderation of an unblameable defence not thereby to take revenge but to repulse the injury In trespasse of an assault and battery for Beasts taken the Defendant said that to all but the assault he was not guilty and for the assault he said that before the trespasse the Defendant was possessessed of an horse as of his proper Goods and of it was possessed till the Plaintiff took it out of his possession and the Defendant the same day and year requested it of the Plaintiff but the Plaintiff said that he would not deliver it and the Defendant said if he would not deliver the horse to him he would retake it in spite of him and presently took a staff which was lying on the ground and went towards the Plaintiff with it which is the same assault of which the Plaintiff hath conceived his Action Judgment if Action and the opinion of the Judges was that the assault was justifiable Kelloway 22. H. 7. f. 92. If two fight together on a suddaine and before a mortall wound be on either party the one
after be demised by Custome as a Copyhold for as continuance maketh custome discontinuance destroyeth it for unum quodque dissolvitur eodem modo quo ligatum est ibidem But a Title being once gained by prescription or custome cannot be lost by interruption of possession for ten or twenty years but by interruption in the right As a Modus decimandi was alledged by prescription time out of mind for tyth Lambs and thereupon issue joyned and the Jury found before twenty years last past there was such a prescription and that for these ten years he paid tythe Lambs in specie and it was objected that the party by payment of tythes in specie had waved the custome but it was adjudged for the Plaintiff in the Prohibition for albeit the modus decimandi had not been paid by the space of ten years yet the prescription being found the substance of the Issue is found for the Plaintiff Mich. 43. 4. Eliz. betwixt Nowell and Hicks Coke comm f. 114. b. vide ibidem plura Vbi non est gubernator dessipabitur populus Ployd 177. b. Where there is no governor the people will be dispersed and where there is no King or governor every one will doe what is right in his own eyes that is where there is no Magistrate fearing God there is no true religion or civill order for when the reignes of government are let loose to the many headed multitude an ataxy of all things will ensue and every one by rapins and robberies and as Cicero per caedem Cicero orat pro pub Sestio de jure magistratus f. 15. vulnera by wounds and slaughters will snatch and catch what they can to themselves so as one truly totum genus humanum periret si magistratus non constituerentur qui boâ—os tuerentur improbos vero coercerent all man kind would perish if Magistrates were not constituted which may protect the good and restrain the evill for government and obedience are the two Pillars of a Society without which it cannot subsist government is the office of a Prince and obedience in the duty of a Subject which are not onely necessary but profitable as the Phylosopher to rule and obey is not onely 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist l. 1. Pol. c. 3. necessary that impious and rebellous persons may be coerced by the sword and profitable that the upright and peaceable be encouraged by rewards and therefore as Tacitus L. 1. Histo praestat esse sub malo principe quam sub nullo it is better to be under an evil Prince then none and as Kekerman Polit. f. 21. a Tyrany is better then an Anarchy for where there is no governor the people will be out of all good order for though in the multitude of people is the honor and strength of a King yet are they murmuring gaine-saying stifnecked and rebellious if they be not by a Moses powerfully ruled and as Florus in the like case of the Romans saith F. l. 3. f. 68. Regum gentium arbiter populus ipse se regere non potest though the people be the Umpires of all Kings and Nations yet cannot they rule themselves And therefore have the Lawes of this Realme utterly exploded the election of the supreame governor because after the fate of one before another can be elected usually the seeds of dissention are sown whereby the peoples mindes are dissipated and divided the Hydra of which evills yet remaineth in the memories of men wherewith the Nobles and people of Poland were greiviously distracted concernining the election of their governour some demanding the Arch-Duke of Austria and others Sigismund for their King which at this day are revived by the valorous and just sword of the King of the Swedes But our Law to prevent such factions mischeifes and many other dis-commodities have excluded interreguum Coke l. 4. Ep. ad lectorum Com. 177. and introduced hereditary succession and such a King as Mr. Ploydon saith whose name is a name of continuance which shall last allwayes as the head and governor of the people so long as the people shall remaine and the King in that name shall never dye for as Sir Edward Coke it is a maxime in our Law Coke f. 4. Ep. ad lectorem Ployd 177. b. Regem Angliae nunquam mori that the King of England never dyeth and therefore the death of such a person as is the King is called in Law the demise of the King because that by it he demiseth his Kingdome to another and leaveth another to have the function and so the dignity continueth allwayes whichs certainly is true in respect of his politicall capacity which allwayes endureth and never dyeth And as Sir Edwaâ—d Coke Coke l. 4. Ep. ad lectorem the State of our Kingdome is monarchicall and from the beginning by the right of inheritance hath been successive which is the most absolute and perfect forme of government and therefore as Mr. Ploydon the Heir and Successor may have the terme of Soverain Lord and may be called our Soverain Lord ibidem and for this same reason the guift of a King without saying more trencheth to his Successors Finch Nomot f. 83. Yet sometimes have our Kings whâ—n as it might be upon reasonable ground presaged that in case of succession and descent of the royall issue or for some other States suspicions civil dissentions might arise to avoid future combustions have conferred their principalities to whom they pleased counting it as lawfull to appoint their Successors after them as substitutes under them Ba. Cron. 4. 27. So Edward the confessor appointed the Crowne after his decease sometimes to William the conqueror sometimes to Edgar Atheline and sometimes to Harold and Harold after his decease upon the title and appointment of King Edward was Crowned by the Arch-Bishop of Yorke and so shortly after William Duke of Normandy when he had defeated Ibidem f. 31. and slaine Harold at the battaile of Hastings claimed the Kingdome by the nomination of Edward the confessor as well as by his conquest and in these latter times the Duke of Northumberland prevailed with King Edward the sixt to appoint the Lady Jane Daughter to the Duke of Suffolke by his Letters Patents to succeed him Ibid. 451. which were suddenly vacuated by Queen Mary but the most authenticall and legall way and course in such cases was the nomination and appointment of Henry the eighth to whom the Parliament granted power by his last Wil and Testament in writing signed with his hand to make conditions limitations what he would concerning the inheritance of the Crowne who by his last Wil and Testament took order that his Son Edward should succeed him in the Crown he dying without â—ssue his Daughter Mary and she dying without issue his Daughter Elizabeth who all succeeded one another in the same order Rex est vicarius minister Dei in terra omnis quidem
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
for the punishment of fine and imprisonment c. but that it specially shall be limitted to such onely as did offend only in not well executing and using the said faculty of Physike for a generall clâ—â—â—â— is not to bee extended to those things are specially comprehended so 34. Eliz. f. 120. ubi A. seised of the mannor of Stable in O. in the county of S in fee and also of other lands in the said O. in fee suffereth a common recovery of all and declareth the uses by Indenture that the recoveror shall stand seised of all the lands and tenements in O. to the use of him and his wife and the heires of his body and dieth and after his death the wife entreth into the said Mannor by form of the said generall wordes but it was adjudged that those generall wordâ— did not extend to the Mannor which was specially named Coke l. 4. f. 8â— b. Nokes case clausula generalis non refertur ad expressa a generall clause is not referred to those things are expressed as where the Assignee of a Lease shall have a Writ of Covenant upon those wordes demise and grant yet if there be an expresse covenant that the Lessee shall enjoy it without eviction of the Lessor or any claiming under him this expresse Covenant qualifieth the generallity of the covenant in Law and restraineth it by mutuall consent of both parties that it shall not extend to the assignee Clausula generalis non porrigitur ad ea quae antea sunt specialiter comprehensa Coke l. 4 131. l. 4. when the deed at the first containeth speciall wordes and then concludeth in words generall both the wordes as well generall as speciall shall stand as Lands given to one and the heires of his body Habendum to him and his heires hee hath an estate taile and a fee simple expectant for as Dier f. 56. b A deed by wordes subsequent may bee qualified and abridged but not destroyed Dolosus versatur in universalibus generalibus Coke l. 3. f. 8. a. Twins case it is one of the Ensignes of fraude in a Deed of gift if the gift is generall without the exceptions of his apparell or any thing of necessity for it is commonly said that the fraudulent is conversant in generalls Coke l. 3. f. 57. b. Specots case A Bishop ought not to shew a generall cause for the refusall of a Clark as that he is criminosus or non idoneus for they are too generall and the fraudulent is exercised in generalls and therefore so incertaine that no issue can be taken of them as 2. E. 3. f. 6. The heire ought to alledge some certaine cause of refusall whence issue may be taken Generalia sunt praeponenda singularibus it is a rule in the Register that in a Writ the generall shall bee put in demand or plaint before the speciall as the Mesuage before lands the Land before Meadow Meadow before Pasture and Pasture before Wood and Wood before Juncary F. a. b. f. 2. E. Ex verbo generali aliquid excipitur Coke com f. 47. a. An exception is part of the thing granted and in esse as exceptis salvo praeter and out of a generall a part may be excepted as out of a Mannor an acre but not a part out of a certainty as out of 20 Acres one Ployd f. 361. a. A Lease of all my Lands in D. except white acre is void for white acre and a gift of all my horses except my black horse is void for my black horse Coke l. 10. f. 101. b. quando verba statuti sunt specialia ratio autem generalis generaliter flatutum est intelligendum where the words of a statute are speciall and the reason generall the statute is generally to be understood as the reason of the statute of 23 H. 6. whereby it was ordeined that no Sheriff should take any obligation by colour of their office but onely to themselves and upon condition that the Prisoners appeare at the day contained in the writ was for the avoyding of extortion and oppression and therefore is to receive a benigne and favourable construction and that in equity not only a bond but an assumpsit is within the reason of that statute and so was it adjudged 27. Eliz. Trin. in the Kings Bench betweene Danhigh and Hothcot that if a Sheriff or Goaler for ease or enlargement of any who is in his custody doth take a promise of him to save him harmelesse that though the statute doth onely speake of an obligation yet it is in equall mischiefe otherwise as Wray chiefe Justice said the statute should serve for little or nothing Multa transeunt cum universitate quae per se non transeunt Coke com f. 142. a. If a man seised of land as heire of the part of his mother make a gift in taile or a Lease for life reserving a rent the heire of the part of the Mother shall have the reversion and the rent also as incident thereunto for many things passe with the generallity which by themselves doe not pass so if a man hath a rent-seck of the part of his mother and the Tenant of the Land grant a distresse to him and his heires and the Grantee dieth the distresse shall goe with the rent to the heire of part of the Mother as incident and appertenant to the rent for now is the rent-seck become a rent charge Singulare distributive sumptum e aquat plurali Dier 328. b. a singular distributively taken equalleth a plurall as in an assise the Plaint is of two Acres of Land the Tenant pleads two barrs severall for the two Acres at large and the Plaintiffe makes two severall titles at large to wit for every acre one the Tenant pleades let the assise come upon the title in the singular number and the assise found one title for the Plaintiff and the other for the Defendant against the Plaintiff and judgement was given that the Plaintiffe should recover for one Acre and be barred for the other Coke l. 10. Br. Lifiels case A Lease is for one yeare and that if they agree the Lessee shall have the Land for three yeares rendring during the said terme ten pounds yearely this reservation goeth to both termes Propria res est quae solius est sive uni soli convenit Tholoss Syntag. lib. 5. c. 1. A propriety is that which is one mans onely and appertaineth onely to one man Ploid f. 308. b God made man the Soveraigne over all living creatures and gave the rule of them all to man Terram dâ—dit filiis hominum and so men by the endowment of God were made Lords of the earth and possessors of all things in the earth but how much land or things upon the earth one man shall have and how much another God hath leased to man by lawes by them to bee made and provided and by such lawes in every Realme and Country they are provided and divided and every man
diversi desiderantur actus ad aliquem statum perficiendum plus respicit lex actum originalem when to the perfection of an estate or interest diverse Acts or things are required the Law hath more regard to the originall Act vide ibidem Lamperts Case When a man seised of Lands in Fee-simple or Fee-taile generall taketh a Wife to the perfection of her Dower two things are requisite lawfull matrimony and the death of her husband and if baron and feme levy a fine the feme is barred of her Dower because that the intermarriage and seisin are the fundamentall causes of Dower and the death of the baron onely the execution of it for the beginning is the principal part upon which all others are founded and therfore in such case if baron and feme grant a rent by fine out of the Land or make a lease for years rendring rent to the baron and his heires and then the feme recovereth Dower shee shall hold that charge with the rent and with the terme and the opinion of Ployden in Stowells case 373. is not holden for Law as appeareth by Dyer f 72. and in Damports case Dyer 224. it was adjudged to the contrary 2. H. 4. and now common experience without contradiction is against it and so Littleton in his Chapters of conditions f. 83. holdeth that if the Feoffee upon condition taketh a wife the Feoffee may enter for the condition broken and the reason is for that the Law hath a principall regard to the originall and fundamentall cause and yet it may be said that the title of dower is not consummate untill the death of the husband and peradventure the feme might die before the Baron vide ibidem plura So things are construed according to that which was the beginning thereof as one maketh me sweare to bring him mony to such a place or else he will kill me and I bring it him accordingly this is fellony in him 44. E. 3. 14. b. So if he make me sweare to surrender my estate unto him and I doe so afterwards this is a disseisin to mee 14. Ass Pl. 20. One imprisoned till he bee content to make an obligation at onother place and afterward he doth so being at large yet he shall avoid it by duresse of imprisonment 21. E. 4. 68. b. Outlawry in trespasse is no forfeiture of Land as outlawry of felony is for though the not appearing is the cause of the outlawry in both yet the force of the outlawry shall be esteemed according to the hainousnesse of the offence which is the principall cause and foundation of the processe 3. E. 3. 84. A man and feme sole have a villaine and afterwards enter-marry and the villaine purchaseth Land they shall not have lands by intierties but by moieties joyntly or in common as they had the villaine in the beginning Coke l. 5. f. 47. a. In Littletons case upon the generall pardon of 35. Eliz. Whether upon a bill exhibited in the Star-chamber before the Parliament and processe awarded returnable after the Parliament the suit shall be said to be hanging by bill before the returne or serving of the processe and it was resolved that it was because the bill is origo caput sectae the bill is the beginning and head of the suit Cujusque rei potissima pars principium est origo rei inspici debet Coke com f. 298. b. whereof he saith you shall make great use in the reading of our bookes A disseisor hath issue and entreth into religion by force of which the tenements descend to the issue in this case the disseisee may enter upon the issue because the discent of the issue was by the Act of the father and not by the act of God and the Law respecteth the originall Act which is his entry into religion whereas a descent doth not take away entry unlesse it commeth by death Littleton ibidem An escrowe is delivered by a feme sole if she marry or die yet by relation to the beginning it shall be good 14. 4. H. 2. Lessee for yeares is bound to I. S. to make him the best estate he can and afterwards the reversion falleth to him the Lessee shall be discharged of the Bond if he grantteh the estate he had at the bond making 12. H 8. 5. A stranger abateth after the death of the father the son dieth his wife shall not have dower for this abatement shall relate to the death of the father 21. E. 4. 60. An attainder by Act of Parliament hath relation to the first day of the Sessions 35. H. 8. b. Presentment tempore belli is not good to gaine possession from the right patron though the induction was tempore pacis Coke l. 2. Binghams case and l. 11. f. 99. b. And such an usurpation shall be construed to be in time of War A blow given by one at the time of non sanae memoriae though the party die when he is fanae memoriae it is not capitall Ployd D. Hales case So if a man of non sanae memoriae giveth himselfe a mortall wound and becommeth sanae memoriae and dieth he shall not be felo de se Coke l. 1. Shellies case f. 99. b. A man buyeth certaine beasts in Market which were stolen and selleth them out of the market and the Vendee giveth him a Crowne in earnest and afterwards they are brought into the Market and agreeth to his bargaine and payeth all his mony and also payeth toll for the beasts the property is not changed for the bargaine shall have relation to the first communication Dier f. 99. b. Tenant for life upon condition that if the Lessor die without issue the Lessee shall have see the Lessee entereth into religion and the Lessor dieth without issue the Lessee is dereyned he shall never have fee because at the time of the performance of the condition the fee could not vest in him Ployd f 489. a. In case of attainder by verdict for felony it shall have relation to the time of the fact done 30. H. 6. 5. Lands given in franke-marriage reserving a rent the reservation is void untill the fift degree is passed 26. Ass Pl. 66. One hath a Rent charge going out of his wifes Land the grantee leaseth to the husband and his heires the husband shall not have it but it shall inure to him by way of extinguishment onely as seised in right of his wife 14. H. 8. 6. The wife endowed by the heire is said to be immediately in by the husband and if the husband were a disseisor and the heire in by dissent yet the disseisee may enter upon the wife Littleton The executor refuseth the Administrator may have an action of trespasse for the goods taken out of the possession of the Executor supposing they were taken out of his possession 38. H. 6. 7. A Recovery without an originall is void and judgement given in Chancery without originall is void and an outlawry
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
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
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
part which agreeth not with the whole Ployd f. 161. a. And therefore every part of a deed ought to be conferred with the other and one entire sense thereupon to be made as if I release all actions and stay there all actions are gone but if I say further which I have as Executor to I. S. there the generality is restrained So 17. E. 4. f. 22. The King granteth to Garter King of Heralds ten pounds for the terme of his life if he had stayed there he had had it absolutely for terme of his life but where he faith further by reason of his Office by it hee hath restrained the generality vide ibidem plura in Throgmortons case so as if he be removed from his Office he shall lose his annuity Parte quacumque sublata integrante sive necessaria tollitur totum the substantiall or necessary part of any thing being taken away the whole is destroyed Coke l. 3. f 41. in Ratcliffs case As none can be procreated but of the father and the mother and ought to have in him their two bloods which bloods commixed in him by lawfull marriage constitutes and makes him heire so none can be heire to any unlesse he hath in him both the bloods to whom he shall be made heire and therefore the heire of the halfe blood shall not inherit because hee wanteth one of the bloods which make him inheritable for the blood of the father and mother are but one blood inheritable and both are necessary to the procreation of an heire and therefore if there be Baron and Feme Donees in speciall taile and the Baron is attainted of treason and executed having issue and the Feme die the issue shall not have the Land because the father is attainted for he ought in his lineall conveyance to make himselfe heire as well of the part of his father as of the part of his mother Dier f. 332. b. And that bar and forfeiture is made by the Statute of 26. H. 8. c. 13. which provideth that every offender convict of high treason shal forfeit to the King c. All his Lands c. saving to every person all his right title interest c. so as the issues in taile are barred by that statute because the heire is disabled and cannot make himselfe heire in his lineall convâ—yance as well to the father as mother Coke l. 9 f. 140. a. upon which reason Britton saith that if one be attainted of felony by judgement the heires engendred after the attainder shall bee excluded of all manner of succession of inheritance as well of the part of the father as of the part of the mother because at the time of the generation of him the fathers blood was corrupted et ex leproso parente leprosus generatur filius Coke l. 3. f. 41. vide plura From the circumstances of time and place MOmentum instans est unum indivisibile in tempore quod non est tempus neque pars temporis ad quod tamen partes temporis copulantur Ployd 110. b. The distinction of a moment cannot be discerned or observed in the actions of men who cannot doe any thing without the space of time yet as Ployd f. 258. b. in Madam Hales case in things of instant there is a priority of time in the consideration of the Law as in a felon of himselfe the forfeiture shall have no relation but to the time of his death and the death precedeth the forfeiture and notwithstanding the forfeiture commeth at the same instant when he dieth yet in consideration of Law one shall bee said to precede the other though both shall be said to come at an instant for every instant hath the end of one time and the commencement of another and so in the death of a Felon of himselfe the death and the forfeiture commeth together and at the same time and yet there is priority to wit the end of his life is the beginning of the forfeiture and yet the forfeiture is so neere the death that there is no meane time betweene them but are conjoyned for a moment or instant is one indivisible thing in time which is not time nor part of time to which notwithstanding the parts of time are conjoyned vide ibidem plura and in the case between Fulmasten and Steward fo 110. So Fulbeck in his Pandects L. 1. f. 9. b. The existence of a moment cannot possibly be discerned and therefore is not so much as the twinckling of an eye yet the Law doth operate without compass of time in an instant but man never for every act of man must have space longer or shorter but the nature of such instants as the law doth imagine is such and so suddaine that as the Civilians omnom respuunt moâ—am and the reason is because in the operation of the law that which is imagined to be done is dicto citius presently done and whereas the act of man is mixed with the act of Law though in regard of the same thing the act of Law is momentary yet the act of man must needs beare some delay as those things by the civill law which are taken from the enemies doe incontinently become his who doth seise and take them the law doth give them unto him presently yet there must be a time to take them that the Law may give them So if a Lease be made to A. for the life of B. and A. dyeth C. entreth into the Land and enjoyeth it as occupant the Law because it will not have the freehold in suspence doth imagine that it was presently and immediately in him after the death of A. and that he entred presently but if we respect the entry as the Act of man we must needs conceive that he had some time to enter into the Land and by his entry which is an act of motion to gaine the free hold ibidem Quae incontinenti fiunt in esse videntur Coke l. 8. f. 77. a. Those things which are done in an instant seeme to be in esse or in being in Staffords case as a particular estate and the increase of a particular estate ought to take effect by the same deed or grant or â—y two deeds delivery at the same time which is all one in effect for those things which are done in an instant and at the same time seeme to be in being And the particular estate and the increase of the estate upon it is but one grant to take effect out of the same root and though that it vesteth at severall times yet when it vesteth it hath the vigor and force of the same grant 27. H. 6. f. 7. So l. 2. f. 71. a. A condition cannot precede an estate but ought to be in the said conveyance or comprised in another deed delivered at one and the same time as the books are agreed in 17. Ass 2. and 34. Assise for the above said reason vide ibidem S. Cromwels case But Coke com f. 236. putteth
that be dissolved the dower ceaseth where the husband and wife are divorced a vinculo matrimonij as causa precontractus causa metus causa impotentiae seu frigiditatis causa affinitatis causa consanguinitatis and William Chadweth was divorced for that he did carnally know the Daughter before the marriage of the mother All these are causes of divorce preceding the marriage and dissolve the dower Coke Com. f. 32. a. 235. a. Yet it is said that if the assignement of dower ad ostium ecclesiae be specified to wit that notwithstanding any divorce shall happen yet that shee shall hold it for life that this is good ibidem but divorce a mensa thoro doth not dissolve the matrimony nor bar the feme of her dower Coke l. 7. f. 43. b. As it was adjudged T. 2. Jac. 18. 5. C. 23. S so well and Wilby dower Coke com f. 33. b. Yet if the wife elope from her husband and leave him and goeth away with the adulterer shee shall lose her dower untill her husband willingly without coertion ecclesiasticall be reconciled unto her and permit her to cohabite with him according to the vulgar verses Sponte virum mulier fugiens adultera facta Dote sua careat nisi sponsi sponte retracta And this is true although shee remaineth not continually with the adulterer or if shee tarrieth with him against her will or he turne her away or co-habiteth with her husband by censure of the Church in all these cases shee loseth her Dower Coke ibidem 32. b. yet though shee be barred of her dower shee may have an appeale and the reason is because the Statute of W. 2. c. 34. barreth her of her dower but not of her appeale Coke com f. 33. b. And for the abovesaid reasons dower is one of the three things are principally favoured in our Law and the Law by that name doth give her many freedomes for the very name Dos doth give her a freedome as according to the custome of the Kingdome mulieres viduae debem esse quietae de tallagijs Regist 142. 143. and tenant in dower shall not be distrained for the debt due to the King by the husband in his life time for the Lands which shee holdeth in dower of which Ockam yeeldeth this reason Doti ejus parcatur quia praemium pudoris est let her dower be spared because it is a reward of her chastity Coke com f. 31. a. By the Statutes of 1. E. 5. c. 2. 5. E. 6. c. 31. A wife shall not lose any title of dower which to her was accrued by the attainder of her husband by misprision of treason or any manner of murder or felony whatsoever but if the husband be attainted of high treason or petit treason shee shall be barred of her dower at this day so long as the attainder standeth in force which is more favourable to the woman then the common Law was Coke com f. 392. b. vide ibidem plura And a woman shall be endowed of a seisin in Law as where Lands or Tenements descend to the husband before entry he hath but a seisin in Law and yet the wife shall be endowed albeit it be not reduced to an actuall possession for it lyeth not in the power of the wife to bring it to an actuall possession as the husband may doe of his wifes Land when he is to be tenant by courtesy Coke com f. 31. a. If a man taketh a wife of the age of seven yeares and alieneth his Land and after she attaineth to the age of nine yeares the husband dyeth the wife shall be endowed for albeit shee was not absolutely dowable at the time of her marriage yet was she conditionably dowable to wit if she attained to the age of nine yeares before the death of her husband ibidem f. 33. a. An husband seised in fee of Lands giveth it in exchange and taketh others in exchange so as he was seised of both the wife shall not be endowed of both but she may take her election to be endowed of which she will Coke ibidem 31. If the wife be of the age of nine yeares and her husband dyeth she shall be endowed though her husband be but four years old ibidem or of what age soever the husband be quia non obstabit mulieri petenti dotem minor aetus viri because the inferior and lesser age of the man shall hinder the woman from demanding her dower and that albeit consensus non concubitus facit matrimonium and that a woman cannot consent before twelve nor a man before fourteen yet this inchoate and imperfect marriage from the which either of the parties at the age of consent may disagree after the death of the husband shall give dower to the wife and is accounted in Law legitimum matrimonium quo ad dotem a lawfull marriage in respect of her dower Coke com f. 33. a. If the husband alien his land and then the wife is attainted of felony now is she disabled but if she be pardoned before the death of her husband shee shall be indowed ibidem Dos de dote peti non debet Coke com f. 32. Dower ought not to be demanded of Dower as if there be Grandfather Father and Son and the Grandfather is of three acres of Land in fee and taketh wife and dyeth this Land descendeth to the Father who dyeth the wife of the Grandfather is endowed of one acre and dyeth the wife of the Father shall onely be endowed of two acres for dower must not be demanded of dower but otherwise it had been if the father had come to the Land by Feoffment from the Grandfather or by guift in taile the wife of the Father after the decease of the Grandfathers wife should have been endowed of that part assigned to the Grandmother for that the seisin that descended after the decease of the Grandfather is avoided by the indowment of the Grandmother whose title was consummated by the death of the Grandfather Non debent mulieribus assignari castra in dotem quae fuerunt virorum suorum quae de guerra existant Coke com f. 31. a. Castles ought not to be assigned to women for their dower which appertained to their husbands and which are for war and therefore of a Castle which is maintained for the necessary defence of the Realme a woman shall not be indowed because it ought not to be divided and the publick shall be preferred before the private but of a Castle which is onely for the use and private habitation of the owner a woman shall be endowed and that in the 7 th of Magna charta nisi domas illa sit castrum is taken for a Castle of publick defence De nullo quod est sua natura in divisibile divisionem non patitur nullam partem habebit uxor pro dote sua sed satisfaciat ei ad valentiam Bracton Coke com f. 32. Albeit of many Inheritances which be
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
and a Law was that thereby there might be certainty of titles and a peaceable possession without contradiction and as a Civilian saith ut sit finis litium that there might be an end of suits and therefore were the Statutes of limitation made within which the demandant that bringeth the action must prove himselfe or some of his Ancestors to be seised and in antient time the limitation in a Writ of right was from the time of H. 1. after that by the Statute of Merton the limitation was from the time of Henry the second and by the Statute of Westminster the first the limitation was from the time of Richard the first but because that limitation of the writ of right was for so long time passed the limitation of a writ of right was changed by the Statute of 32. H. 8. and reduced to threescore years next before the Teste of the Writ and so of other actions Coke com f. 115. a. vide ibidem plura And afterwards another Act was made 21. Jacob. that for the avoiding of suits all writs of Formedon in Descender Formedon in Remainder and Formedon in Reverter for any Mannors c. shall be sued and taken within twenty years and that after the twenty years expired none such or any of their heires shall have any such writ and that no person that hath right or title of entry into any Mannors c. shall thereunto enter but within twenty years vide ibidem cap. 6. plura But it is to be observed that time of limitation is twofold first in writs that is by diverse acts of Parliament the second is to make a title of inheritance and that is as hath been said to pleade a prescription de tempore cujus contrarium memoria hominum non existit Coke com f. 14. 15. which is by the common Law And this also accordeth with the rule of Bracton Longa possessio sicut jus parit jus possidendi tollit actionem a vero domino l. 2. f. 52. Long possession as right begetteth a right and taketh away an action from the true Lord and owner And so in antient times if the disseisor had been long in possession the Disseisee could not have entred upon him neither could the Disseisee have entred upon the Feoffee of the Disseisor if he had continued a yeare and a day in quiet possession and though the Law be now changed yet at this day the Disseisor dying seised being an act in Law barreth the disseisee of his entrance upon the heire and for that many advantages follow the possession and tenant the law taketh away the entry of him that would not enter upon the Ancestor who is presumed to know his title and driveth him to his Action against the heire that may be ignorant thereof Coke com f. 237. b. And for the above said reason the law yieldeth diverse utilities and advantages to the possessor for it is better to be a possessor then to complaine of others who are possessors because it imposeth the burden of proving on the Plaintiff so as if he can prove nothing he which possesseth shall be acquitted neither can possession be avoided but by possession Ployd 137 b. As if I make a lease for years of the lands of my wife and die the lease is not void before entry made by the wife for possession must be avoided by possession and such possession must be gained by entry But if my father die and his land descend to me a Lease for yeares made before my entry is good because I have possession in law and none hath possession in deed but if a stranger abate a lease made by me after is void for the stranger hath possession indeed before my entry upon him Ployd ibid. If an Executor bring an Action of trespasse for goods taken out of his possession it is not needfull to shew the Testament but if hee not ever was possessed of them but doth demand the thing then hee ought to have shewn the testament Ployd f. 46. a. And regularly it holdeth true that when the naked right of Land is released to one that hath jus possessionis and the other by a meane title recovereth the land from him the right in possession shall draw the naked right with it and shall not leave a right in him to whom the release is made as if the heire of the disseisor being in by descent is disseised by A. and the disseisee release to A. now hath A. the meere right to the land but if the heire of the disseisor enter into the Land and regaineth possession that shall draw with it the meere right to the land and shall not regaine the possession onely and leave the meere right in A. but the recontinuance of the possession the meere right is therewith vested in the heire of the disseisor Coke com 266. a. If a woman possessed of a terme for yeares take an husband and the wife dieth though during the life of the wife the terme was not devested out of the wife yet by her death it is vested in the husband and it is given to him by Act in law because it is a thing in possession and not in Action Pl f. 192. b. In pari causa possessor potior haberi debet Reg. I. C. In aequali jure â—elior est conditio possidentis Coke l. 4. f. 90. a As the Lord who is allowed but three Chaplaines retaineth six by his letters testimoniall at one and the same time and all the six are prefeâ—red to six severall plurallities the three which are first promoted are warranted by the statutes and yet the retainer was not according to the statute for in aequali jure melior est conditio possidentis In equall right better is the condition of him who is in possession ibidem If a man purchaseth severall lands at one time which are holden of several Lords by Knights service and dieth the Lord who first seiseth the ward shall have him because they are in aequali jure and there is no priority betweene them which if there were the elder Lord shall have him Perk. f. 6. If ten Mannors be conveyed to two severall persons by one deed which of them happeneth to get the Deed first may detaine it Two Attorneys are retained conjunctim divisim joyntly and severally the plea of him that first pleadeth shall stand because they are in aequali jure to plead If there be two joynt-tenants and one of them taketh all the profits of the land or all the rent the other hath no remedy Coke l. 2. f. 68. a. So the release of all Actions personall by one barreth the other but otherwise it is if the personalty be mixed with the realty and if there be two joynt-tenants Lords and the tenant holdeth by Knights service and the tenant dieth his heire within age and one Lord seiseth the Ward and the other distraineth for the services he that first seiseth or distraineth shall bind the other And
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
to tender him the money and the other shifteth away to prevent him it seemeth in this case he shall be excused because he hath done his endeavour 8. E. 4. 1. by Catesby One was indited quod burglariter fregit intravit ecclesiam nocte ad depraedandum bona parochianorum in eadem existentia and good though he took nothing away for his will was to have taken Dier f. 99 and 58. A man giveth a juror money to embrace him though the verdict pass against him he shall be punished for this 28. H. 6. 12. A man carrieth his sick father into a croft whereby he dyeth it is felony An Harlot hid her child with leaves in a thicket and a Kite striketh it and killeth it it is felony A Bull Beare or Dog accustomed to doe hurt of which the master and owner well knowing doth not tie him up but suffereth him to goe at large and being so at large he killeth a man this is held by Fitzherbert to be felony in the owner of the Beast for thereby the owner seemeth to have a will to kill vide Wilson office of Coroner f. 11. And by the civill law if a man be bitten of another mans dog the owner of the dog is chargeable unto him that is hurt because he did not tie up his dog and musle him Fulb. Pand. f. 76. For it is a rule in the civill law voluntatem pro facto reputari A wife after the death of her husband being a copy-holder came into the Court and challenged her right of Frank-bank and prayed to be admitted but the steward refused to admit her yet was it adjudged an admittance in law So if a tenant alien and the feoffee tendreth his services and giveth a fine and the Lord refuseth the Lord shall be compelled to avow upon him and so continuall claime amounteth to an entry Huttons rep f. 18. And therefore the deniall to doe any thing is a breach of covenant as if a man be bound to doe an act when I request him and I doe request him and he will not doe it he hath forfeited his band 15. E. 4. 21. 34. H. 8. 23. Exitus plerumque in maleficiis spectatur non voluntas the act and not the will in evill facts is respected and considered though in ancient times the will was so materiall in felonious attempts that it was taken for the fact it selfe and so adjudged as one intending the death of another man woundeth him so grievously that he leaveth him for dead and afterward flyeth and the man wounded revived it was then adjudged to be felony in so much as his will appeared to have killed him 1. E. 3. with which Bractons saying accordeth in maleficiis spectatur voluntas non exitus but this law is not now in force for he must be dead indeed before it be adjudged felony and though the will be wanting the evill deed is alway censured for felony As if I hurt another onely with an intention to beat him and he dieth it is felony So upon the malicious words of a woman two men fought and the one killed the other the woman in this case was arraigned for the death of the slaine man Three men goe together to diffame one and one of them killeth a man the other two are principalls though they had no such will and intention Non efficit conatus nisi sequatur effectus non efficit affectus nisi sequatur effectus Coke l. 11. f. 98. b. A conation and an affection hurteth not unless the Act and effect ensue As those who have Offices of trust and confidences shall not forfeit them by conations and intentions to doe Acts although they declare them by express words unless the Act it selfe ensue As if one who hath the custody of a Park shall say that hee will kill the game in his custody or that hee will cut downe the trees in the Park yet doth hee neither kill the game or cut downe the trees that is no forfeiture sic de similibus for in all such cases there ought to be such a fact or a negligence which amounteth to as much to wit as to the destruction of the game If a Bishop Arch-Deacon or Parson c abateth all the trees it is a good cause of deprivation 9. E. 4. 34. If a Prior make dilapidation it is a good cause to deprive him 29. E. 3. 16. 20. H. 6. 36. But if it be but a conation or enterprise without any Act done in none of these cases it is cause of deprivation for in these cases voluntas non reputabitur pro facto the will shall not be reputed for the deed So a conation or an enterprise cannot be the cause of the disfranchisement of a Citizen or Burgesse for he may repent before the execution of it and then no prejudice will ensue but the matter which shall be the cause of a disfranchisement must be an Act or a deed against the trust and duty of his freedome or to the prejudice of the publike good of the City or Burrough vide ibidem plura in James Baggs case Affectus punitur licet non sequatur effectus Coke l. 9. f. 56. 57. in the Poulters case The affection or will to doe a thing is punished though the effect followeth not Though a Writ of conspiracy doth not lie unless that the party be indited legitimo modo acquietatus for so are the words of the writ yet false confederacy among diverse persons shall be punished though that nothing was put in ure as 27. Ass Pl. 44. Two were indited of confederacy either of them to maintaine the other though the matter was true or false and though nothing was supposed to be put in ure yet the parties were put to answer to it for that such a thing is forbidden by the law And in the next Article of the same book enquiry shall be made of conspirators and confederators which confederate among themselves c. falsely to endite and acquit and of the manner of their alliance and betweene whom which proveth that confederation to endite and acquit is punishable by the law though that nothing was executed And it is holden 19. R. 2. title briefe 726. A man shall have a writ of confederacy though as they do nothing but confederate together and shall recover damages and may be indited for it also Also the usuall commission of Oyer and Terminer giveth power to the Commissioners to enquire de omnibus coadunationibuâ— confederationibus falsis alligantiis coadunatio is an uniting them together confederation is a combination between them and falsa alligantia is a false alliance one with another by obligation or promise to execute any unlawfull Act which the law punisheth before any fact is executed to the end to prevent the unlawfull act quia quando aliquid prohibetur prohibetur illud per quod pervenitur ad illud for when any thing is forbidden that also is forbidden by which
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
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
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
by misadventure as by an Arrow at Butts this hath a pardon of course but if a man be hurt or maimed onely an Action of Trespass lyeth though it be done against the parties will and he shall be punished in the Law as grievously as if he had done it of malice Stanf. 16.6 E. 4.7 So if a Chyrurgion authorized to practise do through negligence of his cure cause the party to dye this Chyrurgion shall not be questioned for his life yet if he do onely hurt the Wound whereby the cure is cast back and death ensueth not he is subject to an Action of the Case for it Stanf. 16. So if Baron and Feme commit Felony together the Feme in regard of the subjection of her will to her husband shal neither be principal not accessary but if they joyn in committing a Trespass upon land or otherwise the Action may be brought against them both So if an Infant wanting discretion or a mad-man kill another he shall not be impeached thereof but if they do him any corpâ—rall hurt he shall be punished in Trespass 35 H. 6. 11. So in Felony if the principall dye or be pardoned the proceeding against the accessory faileth But in a Trespass if one commandeth his man to beat you and after the Battery the Servant dyeth yet you may have an Action of Trespass against the Master 17 H 4.19 Aestimatio praeteriti delicti post facta nunquam crescit Bac. Max f. 32. In penall Lawes and Facts the Law considereth the degree of the offence not as it standeth at this time when it is committed but for any circumstance or matter subsequent the Law doth not extend or amplifie the same As if a man be wounded and the Percussor is voluntarily let to go at liberty by the Goalor and after the party wounded dyeth yet it is no Felonious escape in the Goaler 11 H. 4.12 So if one conspire the death of one who after cometh to be King not being within the Statute of 25 E. 3. this is high not high Treason but otherwise it is in civill and common cases vide ibidem Plur. Ipsae etenim leges cupiunt ut jure regantur Co. l. 2. f. 25. In omnibus quidem maxime tamen in jure aequitas est Reg. I. C. In all things but especially in the Law there is equity and the Lawes themselves desire to be ruled by equity For inasmuch as no Legislators can foresee all things which may happen it was therfore convenient as Ploydon saith that that fault should be reformed by equity And is either an amplification or diminution of the Law and no part of the Law but a morall vertue which reformeth the Law for dirigens and directum are diverse things and equity is not a Law but the emendation of the Law and therefore the Lawes themselves desire to be ruled by equity As whereas the Debtor after he is become Bankrupt may prefer one and defraud others the Act of 13 Eliz. c. 7. hath appointed certain Commissioners of indifferency and credit to releive the Creditors of the Bankrupt equally and that there shall be an equall and rateable proportion observed in the distribution of the Goods of the Bankrupt among his Creditors having regard to the quantity of their severall debts so that one shall not prevent the other but all shall be in aequali jure and so we see in many cases as well at the Common Law as upon the like statutes such constructions have been made for as Cato said Ipsae etenim leges cupiunt ut jure regantur and therefore is it holden 35 H. 8. Title Testaments V. de plura in Herberts case lib. 7. Bro. 19. A man holdeth three Mannors of three severall Lords by Knights-service every Mannor being of equall value he cannot devise two Mannors and leave the third to descend according to the generality of the Acts of 32. 34. H. 8. of Wills for then it shall prejudice the other two Lords but by equall construction he cannot devise but two parts of every Mannor and so as equality shall be observed among them and so at the Common Law an equality is required as in 11 H. 7. 12. b. a man is bound in an Obligation and his Heirs and he hath Heirs and hath lands of the part of his Father and part of his Mother both the Heirs shall be equally charged vide ibidem plura Co. Com. f. 10. a. If partition be made between Parceners of lands in Fee simple and for novelty of partition one granted a rent to the other generally the Grantee shall have a Fee-simple without this word Heirs because the Grantor hath a Fee-simple in consideration whereof he granted the rent Ipsae etenim leges c. And Co. Com. f. 271. a. b. when a Feoffment is made to a future use as to the performance of his last Will the Feoffee shall be seised to the use of the Feoffor and his Heires in the mean time for the Lawes desire to be ruled by right and equity And reason would that seeing the Feoffment is made without consideration and the Feoffor hath not disposed of the profits in the mean time that by construction and intendment of Law the Feoffor ought to occupy the same in the mean time And so it is when the Feoffor disposeth the profits for a particular time in presenti the use of the Inheritance shall be to him and his Heires as a thing not disposed of Co. ibidem Co. l. 5. f. 100. a. The Commissioners of Sewers by the Statute of 6 H. 6. c. 5. and 23 H. 8. c. 5. ought to tax all equally which are in danger to be endamaged by not repairing the Banks and not him onely who hath land adjoyning to the River for otherwise the rage and force of the water may be so great as the value of the land adjoyning shall not serve to repaire the Banks and therefore the Statutes will have all who be in the same perill and are to receive commodity by it to be contributory and the statutes require equality which well standeth with the rule of equity for equitas in Bracton est quasi aequalitas and though the Owner of the Land next adjoyning to the River was bound by prescription to repaire the banks of the River yet the Commissioners ought not to charge him only with all but to take all those which have lands in danger for otherwise it may that all the country shall be surrounded before that one person onely can repaire the Banks vide ibidem plura In Fooks case Coke l 7. f. 123. b. When the King granteth any Land without the reservation of any Tenure or without any thing from thence to be rendred or the like that land by the operation of Law shall be holden of the King in Capite by the service of Chivalry according to the rate and proportion of land that affereth to one fee of Chivalry and so of more more and of lesse lesse for the
stranger tendreth them mony for the Land and they intending to sell it more deere defer the sale for two yeares and take the profits themselves the heire for the laches and long delay may enter and put them out of the Land 38. Ass Pl. 3. 39. Ass Pl. 3. A man indebted by specialty or upon an account determined tendreth the mony to the Debtee after the day in which it was due and payable and it is refused and after mony is embased it seemeth to many that the debtor shall beare the losse although he had made tender at the very day of payment because he must say vncor prist Dyer f. 83. Pl. 76. Caveat Emptor Coke Com. f. 102. a. Let the the buyer be vigilant and wary what he buyeth for though by the Civill Law every man is bound to warrant the thing that he selleth and conveyeth yet the Common Law bindeth him nor unlesse there be a warranty either in Deed or in Law Ibi. Coke l. 4. f. 26. a. A Copy-holder who is out of possession ought not to sell his Land untill he hath gained the possession and if any one will purchase any title he is not to be favored but in such case Caveat Emptor let the buyer take heed for if any one hath a pretended right and title to Copy-hold Land bargaine and sell it to another it is within the Statute of 32. H. 8. c. 5. vide ibidem plura If I take an horse of another mans and sell him and the owner taketh him againe I may have an action of debt for the mony for the bargaine was perfect by the delivery of the horse Caveat Emptor Nay Max f. 94. If I sell my Horse to another man for ten hundred pounds who taketh his horse againe I shall have all the mony Ibidem f. 95. Qui timent caveant vitent Offi. of Exe. 251. They who feare are wary to shun dangers as an Executors office is dangerous and therefore ought to feare what encombrances fall on him and to keep goods to pay all debts if any should be concealed Non temere credere nervus est sapientiae Coke l. 5. f. 114. b. Not hastely to beleive is the sinew of wisdome and therefore the Law hath appointed the last time in the day to pay mony upon a condition that both parties may certainly meet together which is founded on the experience of the sages least any of the parties should be constrained to make a Letter of Attorny or repose confidence or trust in any other to pay it for him when he will doe it for himselfe And it is wisdome not rashly to trust any Caveat actor Reg. I. C. Let the actor beware what he doth One entreth into Bond to A. that he and A. shall stand to the Arbitrement of I. S. If A. refuse he him-himselfe shall take the forfeiture of the Bond. If a man have a Chappell which is his donation by Letters Patents and he presenteth me his clerk to the Ordinary he shal not make collation afterwards If a Parson impropriate presenteth one to a Church it maketh it disappropriate If he who holdeth his Land by homage and fealty taketh his Land of the King by office found that he holdeth it by forty shillings per annum he shall pay the rent hereafter Abundans cautela non nocet Coke l. 11 f. 6. b. An abundance of circumspection doth not hurt vide ibi Qui sentit onus sentire debet commodum Coke l. 1. f. 99. a. He who beareth the burden and taketh the paines ought to receive the profit as if a Feoffment be upon condition that if the Feoffor or his Heirs pay the sum of 20 l. or to doe any act before a certain day that they shall re-enter in this case if the father dye before the day of paymenr and the daughter for the safe-gard of the inheritance pay the mony or satisfieth the condition in this case the Son after borne shall not devest it for if the daughter had not performed the condition the Land had been utterly lost and therefore in this case a good argument may be made that the daughter shall detaine the Land for Qui sentit onus sentire debet Commodum ibidem vide Hobart Rrep fo 4. in Youngs and Radfords case Ployd f. 514. Trevilian was Tenant in tail of Tenements and he being only seised of such an estate a common recovery was had against him and Avice his wife who vouched over according to the course of common recoveries and it was found that the wife had nothing in the Tenements the husband dyeth the wife shall have nothing of the intended recompence in the case because she had nothing in the Tenements and so could lose nothing If Tenant for life or in Dower do devise the Corn growing on the ground upon the land at the time of their death this is a good Devise and he in the reversion shall not have it 4 H. 3. Devise 26. And the Statute of Merton which saith Omnes viduae possunt legare sua blada is but an affirmation of the common Law which was used in the time of H. 3. 19 H. 6. 6. A man seised of land in see in right of his wife leaseth the land to a stranger and the Lessee soweth the land and after the wife dyeth the Corn being not ripe the Lessee may devise the corn and yet his estate is determined 7 E. 3. 67. A man seised of land in the right of his wife and soweth it and deviseth the Corn growing on the ground and dyeth before it is severed the Devisee shall have it and not the wife 7. Ass pl. 19. One seised of lands in fee hath Issue a Daughter and dyeth his wife Privement Ensaint with a Son the Daughter entereth and soweth the land and before the severance a Son is born and his next friend entereth yet the Daughter may devise the Corn growing on the land If a Mannor be put in execution upon a Statute-merchant and the Conusee sow the land he may well devise the Corn growing on the ground Perkins f. 100. vide ibidem plura Qui sentit commodum sentire debet onus Cok. l. 5. f. 24. He that feeleth or reapeth the profit must bear the burthen and the charges A man leaseth an house by Indenture for years and the Lessee covenanteth for him and his Executors to repaire the house at all times necessary The Lessee assigneth it over to H. who suffereth it to decay the Lessee bringeth an action of Covenant against the Assignee and it was adjudged the action did lye in that the Lessee had taken upon him to bear the charges of reparation the annuall rent was the less which trenched to the benefit of the Assignee and he that enjoyeth the profit must bear the burthen and charges vide ibidem plura Co. l. 5. f. 100. a. The Statutes will have all those which are in perill and which are to take comodity by the
within a Mannor time out of minde of man used was to grant parcell of the said Mannar in Fee-simple and never any grant was made to the heir of his body for life or for yeares and the Lord of the said Mannor did grant to one by copy for life the remainder over to another and the heires of his body and was adjudged that the grant and remainder over was good because the Lord having a custome and interest withal might grant a lesser estate for in this custome which enableth him to doe the greater enableth him to doe the lesse Coke com f. 52. b. for omne majus continet in se minns and regularly it is true that where a man doth that which he ought to doe and more there it is good for that which is warranted and void for the rest Coke com 258. a. As if a Letter of Attorney be made to I. S. to make livery of seisin in white acre and he maketh livery in white acre and black acre there he doth idem aliud and therefore it is good for white acre that is according to his authority and void for black acre which is aliud from his authority Perk. 38. But otherwise it had been if the Letter of Attorny were to make livery of one acre and he maketh livery of two acres there it is void for both because it is not named in certaine in the Feoffment of which acre livery shall be made according to 4. H. 7. And so regularly it is true that where a man doth the same thing he is authorized to doe alio modo in another manner then the authority doth warrant there it is void for the whole Davis in case of tenures f. 21. As if I command a man to make a Feoffment in my name according to a copy shewed in Latine and he maketh a Feoffment to the same effect in English it is without warrant because he doth not pursue the authority in the same Mannor 10. H. 7. 9. So a Letter of Attorney is made to deliver seisin after the death of I. S. and the Attorney maketh seisin during the life of I. S. all is void 40. Ass 38. Authorities by Deed are to be pursued strictly and precisely both for matter and manner Davis ibidem f. 17. The Plaintiff did make a charter of Feoffment to the tenant and a Letter of Attorny to deliver livery of seisin the Attorney delivereth seisin upon condition this livery is void for the authority is not pursued in the same manner 12. Ass 24. 26. So on the contrary if the Letter of Attorney had been to deliver seisin upon condition and the Attorney maketh livery without condition this is void Co. Just 258. 11. H. 4. 3. So where an authority is given to enfeoff and he levieth a fine 10. H 7. 15. It is void Omne mandatum est temporaneum Reg. I. C. all commands are temporary and are extinguished by death which is the difference that the Civilians put between an authority and a command and that the commande is determined by the death of him that commandeth but not the authority as by these verses is signified Praeceptum non pracipitat mors praecipientis Mandatum mandatore cadente cadit But some hold opinion that they both expire by the death of him that commandeth or giveth authority which Fulbech saith is more agreeable to our Law especially in matters of Bailship of which notwithstanding these diversities may be observed A man deviseth all his lands to his Sister except one Mannor which he appointeth to pay his debts and he made two Executors and dieth the one Executor dieth yet the other may sell the Mannor and pay his debts Dyer 371. But if a Letter of Attorney be made to deliver Livery of Seisin after the death of the Feoffor the Letter of Attorney is void Coke com f. 52. b. And if a Mayor and Comminalty maketh a Charter of Feoffment and a Letter of Attorney to deliver Seisin the Livery and Seisin is good after the death of the Mayor because the Corporation dieth not But if the Lessor by his Deed licence the Lessee for life or for years to alien and the Lessor dieth before the Lessee doth alien yet is death no countermand of the licence but that he may alien for this licence was executed on the part of the lessor as much as may be M. 3. Jac. c. 23. And so if the King doth licence to alien in Mortmain and dieth the Licence may be executed afterward Coke ibidem There is a diversity between authorities created by the party for private uses and an authority created by Law for execution of Iustice As for example if a man deviseth that his two Executors shall sell his land if one of them dyes the Survivor shal not sell it but if he had devised his lands to his Executors to be sold there the Survivor shall sell it coke com f. 181. b. And if a man make a Letter of Attorney to two to do any Act if one of them dye the Survivor shall not do it But if a Venire facias be made to foure Coroners to impanell and return a Iury and one of them dye yet the other shall execute and return the same vide ibidem plura And if there be two joynt Attorneys to return Livery for another and livery of Seisin is made to one of them in the name of both this is void unless the Warrant be joyntly and severally Coke com f. 49. l. vide ibidem plura Mandata licita strictam recipiunt interpretationem sed illicita latam extensam Bacon Max. 60. lawfull Commands receive a strict interpretation but unlawfull large and extensive In committing of lawfull authority to another a man may limit it as strictly as he pleaseth and if the party authorised do transgress his authority though it be in circumstance expressed it shall be in most cases void in the whole act as hath before been demonstrated and distinguished But when a man is the Author and advisor to another to commit any unlawfull act then he shall not excuse himself by circumstances pursued Therefore if I make a Letter of Attorney to I. S. to deliver Livery and Seisin in the capitall Messuage and he doth it in another place of the land or between the hours of two and three and he doth it after or before in these cases the act of the Attorney as to execute the estate is void Or if I express the Seisin to be delivered to I.D. and my Attorney deliver it to I.B. it is void but if my Attorney maketh it to his Attorney it shall be intended for it is a Livery to him in Law But on the other side if I command I. S. to rob I. D. on Shooters-hill and he doth it on Gads-hill or to rob him such a day and he doth it not himself but procureth another to do it or to kill by poyson and he doth it by violence in all these cases he
of a Grant be good in parcels and for parcels not that which is for the advantage of the Grantee shall be taken to be good As if a man granteth unto me an annuity provided that it shall not charge his person the Proviso is void and the Grant good 20 E. 4 8. by Townsend 14 H. 4. 30. by Hank And if an annuity be granted pro consilio impendendo though the Grantee be well skilled in divers professions of art yet counsell shall be given in that faculty onely which was intended at the time of the Grant 4. 1. E. 3. 6. If the King grant to a man that he and his Heirs shall be quit of Tax for the lands which they have this is a good Grant though there be no Tax at the time of the Grant 38 H. 6. 10. And so is the Law of Tenths and fifteens ibidem Ployd f. 29. a. If a man maketh a Lease for life and after the decease of Tenant for life that the lands redibus to A. B. in fee it is held a good remainder because it is held for a principle that the Livery of every one shall be taken more strong against him 18 E. 3. f. 28. If a man give land to one haeredibus it shall be a Fee-simple without the word suis and though he doth not give him a Fee-simple expresly yet every mans livery shal be taken strongest against him Ployd f. 18 b.a. If I make a lease for years upon condition that one moneth after he shall have fee he shall have it after the moneth accordingly for the thing shall pass according to the convention more strong against the Donor Ployd ibidem So if I make a lease to two upon condition that if one doth dye within seven years that then after the death of the other it shall remain to a stranger in fee that remainder is good for the reason of the condition to give the estate to privies or strangers is all one in regard that he had first given an estate to which the condition may be annexed for the livery and limitation shall be taken strongest against him that made it ibidem If I give land to one filio suo primogenito and he hath no Son at the time of the gift and after he hath a Son that son shall have the land by way of remainder and yet the remainder was not out of the Lessor neither did it vest at the time of livery but the Law construeth the livery and limitation more strong against the Lessor P. 17 E. 3. f. 29. Ployd vide ibidem plura If two Tenants in Common grant a rent of ten shillings this is severall and the Grantees shall have twenty shillings But if they make a Lease and reserve ten shillings they shall have onely ten shillings between them So an Obligation to pay ten shillings at the feast of our Lord God it is no plea to say that he did pay it but he must shew at what time or else it will be taken that he paid it after the feast for every act shall be taken more strictly against him that made it Noy Max. f. 15. 2 E. 3. p. M f. 140 b. 161. b. A generall pardon ought to be taken more beneficially for the Subject against the King 37 H. 8. f. 21. Coke l. 4. Vaughans case If I. S. submit himselfe to arbitrement of all Actions and Suites between him and I D. and I. N. it shall be intended collective of joynt Actions and distributive of severall Actions also because the words shall be taken stronger against him that speaketh 2. R. 3. 18. 21. H. 7. 29. If I grant 10 l. rent to Baron and Feme and if the Baron dye the Feme shall have three pound rent it shall be strongest taken against me the grantor for three pounds addition to the ten 8. Ass Pl. 10. So if I sow all my Land with Corne and let it for yeares the Corne passeth to the Lessee if I except it not So if I have a free Warren in my owne Land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren discharged and extracted during the Lease 8. A. 7 32. H. 6. If I. give Lands to I. S. and his heires males this is a good Fee-simple and the words males is void Bac. Max. f. 12. vide ibidem plura Yet this rule also faileth when another which the Law holdeth worthier cometh in place and which is of more equity and humanity It is a rule in the Civill Law valeant eo modo quo valere possunt and at the Common Law Benignae faciendae sunt interpretationes chartarum propter simplicitatem laicorum ut res magis valeat quam pereat Coke com f. 30 b. The interpretations of Deeds and charters because of the simplicity of the people are favorably to be made that the thing may rather stand and subsist then fall and perish and let all things stand by the same meanes they may stand And therefore if I give Lands to I. S. and his heires rendring five pounds yearly to I. D. and his heires this implyeth a condition to me that am the grantor Littleton yet were it a stronger exposition against me to say that the limitation shall be void and the Feoffment absolute So if a man make a lease to A. for yeares and after by his Deed the Lessor voluit quod haberet teneret terram pro termino vitae willeth that he should have and hold the Land for terme of his life this is adjudged by the word volo to be a good confirmation for life Coke com f. 301. b. Though it were stronger to say those words are void because they are not proper words of confirmation So if the Disseisor granteth a rent to the Disseisee and he by his Deed granteth it over and after doth re-enter in this case one and the same words doe amount to a grant and a confirmation So if the Disseisor maketh a Lease for life or in taile the remainder to the Disseisse in fee and the Disseissor by his Deed granteth over the remainder and the particular tenant atturneth the Disseissee shall not enter upon the tenant for life or in taile for then he should avoid his own grant which amounteth to a grant of the estates and a confirmation also ne pereat Coke ibidem 302. So if A enfeoffeth another upon condition that he and his heires shall render to a stranger and his heires a yearely rent of twenty shillings although this reservation be meerly void for that no estate moveth from the stranger and that he is not party to the Deed and therefore can be no rent yet shall it be taken for a penalty or for an annuall summ in grosse so as if they will not pay it according to the forme of the Indenture they shall loose the Land by the entry of the Feoffor and his heires which is to be observed that
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