higher nature determineth a matter of lower nature 21 H. 7.5.33 H. 8. Dy. 50. A man hath liberty by prescription and after taketh a grant of those liberties by Letters Patents from the King this determneth the prescriptions for a matter in writing determineth a matter in fair The more worthy draweth to it things of less worthiness 11 H. 4.31 10 El. 321 b. 3. Eliz. 238. An adulterer if he takes away another mans wife and puts her in New cloaths the Husband may take the wife with her cloaths And therefore Things accessary are of the nature of the Principal 40 Ass pl. 25. 7 H. 6.19 b. 26 H. 8. Dy. 7. b. A Servant procureth another to kill his Master This is not petty Treason in the Servant because it is but felony in the other which is the principal A Man 's own words are void when the Law speaketh as much 30 Ass pl. S. Lands given to two uni corum diutius viventi they make partition and one dyeth yet the lessor shall have again the moyety of him that dyeth for uni corum diuâ—ius viventi are but idle words because without them the joyntenant by course of Law is to have all if he do survive From the Rule of Method In things of Formality The Generals must go before The Rule of the Register and the Specialls follow after In a writ the general shall be put in demand and in plaint before the speciall as land before prede pasture wood c. wood before Alders Willows c. The more worthy is to be set before the less worthy The entire thing shall be demanded before the moiety ibid. part ibid. or parts The thing of greater dignity before that which is of less as a Mease before Land a Castle before a messuage or mannor Next are the precepts of Natural Philosophy Law respecteth the bonds of nature As the Son may maintain his father and one brother another The Law judgeth and esteemeth of all according to their nature both persons and their ages things actions and the time of the doing them In persons It looketh to the excellency of some and giveth them singular priviledges and preheminencies above the rest As to the King the Queen his Wife Noble-men and Peers of the Realm Also unto them of the Church It tendreth the weakness and debilities of others As of men out of the Realm or in prison femes Covert and therefore favoureth them for their Dowers infants men unlettered Ideots c. If a disseizor die seized the disseizee being all the while within age Covert-Baron in prison or out of the Realm it shall be no discent to toll the entrie of the disseizee And an Ideot or man of nonsane memory may enter or have an action to avoid their own Peoffments It favoreth strangers not parties nor privies Lessee for years grants a rent-charge 1 El. 198. and surrenders yet the rent shall be paid during the years And therefore things done in anothers right A person Out-lawed or Excommunicated may have an Action as Executor of another man It dis-favoureth othersome Aliens neither borne within the Realme nor free Denizons that they shall not participate of the Priviledges of natural-born subjects Especially Alient that are enemies Alien enemies shall not have so much as a personal action which other Aliens may Touching their Ages It holdeth 21 their full age to make good any act they do 14 their age of discretion And therefore That a competent age to binde a man in matter of marriage 12 to binde the woman 9 to deserve her Dower In things It respecteth every one according to worthiness As. Life and liberty most the person above his Possessions Freehold and Inheritance more than it doth Chattels Real Chattels more then Personal A Villain infranchised for an hour is free for ever So if infranchised upon condition the condition is void and the infranchisment absolute A matter in right more then a matter in Possession 3 E. 3.88 In Avowrie or Annuity aid shall not be of a person if the Plaintiff be seized by the hands of the same person because it is of the person 's own wrong to deny it Otherwise in a Cessavit for that is in the right for the land Yet it favoureth Possession where the right is equall A man purchaseth at one time several lands 8 El. 296. holden of severall Lords by Knights-service and dyeth the Lord that first can happe the Wardship of his heir shall have it It favoureth Matters of Profit and Interest largely of Pleasure 13 H. 7.13 12 H. 7.25.11 H. 7.12.35 H. 6.58 4 E. 6.68 b. Ease Trust Anthority or limitation strictly Way granted to Church over my Land extends not to to any other but himself for it is but an Easement If the Sheriffe behead one that should be hanged it is felon y. A Lease to A and B c. for their liv s. A dieth B shall have all during his life for it is an interest But if a Lease be made to J. S. during the life of A. and B. there if one of them die the estate is determined for that is a limitation Therefore These may be countermanded 9 E. 4.4 b. 1 E. 5.2 28 H. 8. Dy. 22. 14 E. 4.2 Perk. 19. b. so cannot those A licence to come to my house to speak with me Goods bailed over to deliver to J. S. or to bestow in almes A Letter of Attourney to deliver seizin All these may bee countermanded before they be dones But if I present J. S. to a Church I cannot after vary and present a new for a kind of interest passeth out of me It favovreth matters of Substance more then matters of Circumstance Pleas in Bar and Replications though the Plaintiff be afterwards Non-suite make an Estoppell for they are express allegations and material As 21 H. 7.24 b. in Debt upon Obligacion if the. 33 H. 6.10 b. Defendant plead in Barre an Acquittance made at D. Or if the Defendant plead an Acquittance and the Plaintiff reply That it was made by duress of Imprisonment at D. Now in another action neither the Defendant shall plead that the Acquittance nor the Plaintiff that the duress was at another place But a matter in the Writ or Count makes no Estoppel for they are but supposals 20 H. 7.11.32 H. 8. Br. Darrein Preâ—â—…ments Things executed and done more then things executory and to do A Feofment to the use of ones Will if this Will be declared before or at the time of hit Feoffment it cannot be altered because it is executed It favoureth possibility of things And therefore 1 H. 4.1.15 H. 7.10.41 E. 3.11 Nothing to be void that by possibility may be good A messualtie is given in Tail reserving a Rent this is good for the Tenancie may Escheat to the Doriee and then the Donor shall distrain for all his arrerager It favoureth a mutual recompence An
dieth she had but a seizin in Law and yet he shall be tenant by the courtesie because he could by no industry attain to any other seizin Idem non potest esse agens patiens 14 H. 8.31 13 H. 8 32. 8 H. 6.29 9 L. 4.32 Dye 188. And therefore a man cannot present himself to a Benefice No man can summon himself And therefore if a Sheriff suffer a common recovery it is error because he cannot summon himself Impersonalitas non concludit nec ligat Coke Lit. 352. b. And therefore every Estoppell ought to be a precise affirmation Imperitia maxima est maechanicorum poena 7 E. 3.65 b. Coke l. 11.57 a. Therfore if he that taketh upon him to work be unskilful and ignorant it is sufficient punishment for him for if any take upon him to work and doth it amiss an action of the case lyeth against him Inclusio unius est exclusio alterius Lit. Com. 210. a Coke l. 11.50 A morgage with the money to be paid to the Morgagee and his heirs Ployden 106. it shall not be paid to his Executors Infinitum in jure repro batur Coke l. 6.45 l. 7.456 l. 8.16 b. 3 H. 4.17.11 H. 4.9.9 E. 4.50 51. As if a man have a debt by a simple contract and taketh an obligation for the same debt or any part of it the contract is determined So of a Judgement upon an obligation In fictione legis semper est aequitas Litt. Com 150. a. Coke l. 11.46 Liford's case As if one seized in Fee take Wife and make a Feoffment in Fee the Feoffee grants a Rent-charge of 10 l. to the Feoffer and his Wife and the heirs of the Husband the Husband dieth the Wife recovereth the moity for her Dower by the Custome the Rent shall be apportioned and she may distrain for five pound which is the moity for albeit the Dower by fiction of Law be above the Rent yet when she recovereth Dower she shall not have the entire Rent but of the residue for fiction of Law shall never work a wrong to a third person In aequali jure melior est conditio possidentis 9 H. 5.15 Coke l. 4.90 a. l. 2.68 Perk. fol. 6. If a man purchase severall Lands at one time which are holden of severall Lords by Knights service and dieth the Lord who first seizeth the Ward shall have him Injuria illata in corpus non potest remitti I itt Com. 1 27. a. 1 61. b. Vita membra sunt in manu regis 19 Ed. 1. rotul 36 And therefore if a Lord Mayheme his villain the King shall punish him for mayming his Subjects by Fine Ransome and imprisonment In ambiguis casibus semper praesumitur pro rege 22. Ass pl. 19. Stamf. fol 10. And the reason that Treasure Trove belongs to the King is Quia dominus rei non apparet ideo cujus sit incertum est and therefore presumed it is the Kings In disjuctivis sufficit alterum esse verum Coke l. 10.59 a. Bishop of Sarum's case Whereas the Avowant did avow that the Office supravisoris omnium maneriorum suorum to such Person or Persons as it pleased the Bishop and the Defendant pleaded in the negative that the Office had not been but for the life of one that exception was not allowed because he did not say that the said Office had been granted to divers but only to such person or persons and in disjunctives it is sufficient that one of them be true In jure non remota sed proxima causa spectatur 2 H. 4.3 26 H. 8.2 If a person make a Lease and be deprived or resigneth the Successours shall avoid the Lease for the Law regardeth not the cause of Deprivation or Resignation which is the Act of the party but the act of the Ordinary in the admission of the new Incumbent In maleficiis plerumque spectatur exitus 1 H. 3.144 Coke l. 2.84 non voluntas If I hurt another only with an intention to beat him and he dieth it is Felony So the ancient Law is altered wherein it was a Rule of Law In maleficiis spectatur voluntas non exitus as Bracton hath it vid. 1. E. 3. In omnibus fere minori aetati succurritur In a cessavit against an infant who hath the Tenancy by descent he shall have his age though it be upon his own Cesser because he cannot tell what arrearages to tender before the Judgement Impossibile est unum corpus in duobus locis esse simul Pop. Rep. 58. As if a man make a lease of two Barns rendring Rent and for default of payment a re-entry If the Tenant be at one of the Barns to pay the Rent and the Lessor at the other to demand the Rent and there is no body there to pay it yet the Lessor cannot enter for the condition broken because there was no default of the Tenant he being at one Barn for it is not possible for him to be in two places together In praesentia majoris Ployd 498. a. cessat potentia minoris Appropriations made by the Pope Patron and King were good before Stat. 25. H. 8. without the Bishop because in the power of the greater the lesser ceaseth the Pope being supreme Ordinary In quo quis deliquit Coke Litt. 233. b. Groke Rep. fol. 183. Litt. 233. b. in eo de jure puniendus est If the Keeper of the Park pull down the Lodge or any House within the Park for putting of Hay into it for feeding of the Deer or such like it is a Forfeiture and the reason why the Office is forfeited is that he may be punished in that wherein he offended In omnibus obligationibus quibns dies non ponitur 20 E. 4.8 21 E. 4.8 praesenti die debetur Et nulla temporis d signatio praesens denotat When one is bound in Twenty Pounds to pay Ten Pound and no day of payment is limited the lesser sum is due presently to be rendred Judicis est judicare secundum allegata probata Dy. fol. 12. pl. 50. Ployd 83.6 7. H. 4.31 In a Formedon if the demandant count upon a Foeffment in Fee and not in Taile if the Tenant demurre upon it the Court cannot maintain the Declaration to be true because the Judge is to judge according to what is alledged Judicium pro veritate accipitur And therefore common recoveries suffered by the Tenant in Fee of the Lands of his Lessee for Life could not bee avoided or satisfied till the Stat. 14. Eliz. c. 8. And in Attaint the first Judgment is so favoured that the Plaintiffe shall have no other evidence but what he had at the first Triall but the Juty as many as they will to confirm the first Verdict Judicium à non suo judice datum Coke l. 10.76 b. nullius est momenti As if the Sheriff who is prohibited by the Law to
hold his Turn within a Moneth after Michaelmas holdeth his Turn after the Moneth and take an Indictment of Robbery at that Turn and the Indictment is removed by Certiorari into the Kings Bench by advice of all the Justices the party was discharged because not within the time limited Junior non potest dotem promereri Coke Litt. 33. a. nec obstavit mulieri minor atas viri If the Woman be not of the age of nine years she shall not have Dower but if she be of that age it matters not what age the husband be of though but four or five Jura naturalia sunt immutabilia Coke l. 7.15 b. Bracton l. 9. c. 23.33 H. 6.55 As if a man have a Ward by reason of a Seigniory and is out-lawed he forfeiteth his Wardship to the King but if he have the Wardship of his Son or Daughter which is heir apparent and is out-lawed he doth not forfeit this Wardship for Nature hath annexed it to the person of the Father Ipsae etenim leges cupiunt ut jure regantur Lit. Com. 10. a. 271. a. Coke l. 5.100 If partition be made beween partners of Land in Fee simple and for owelty of partition one granteth a Rent to the other generally the grantee shall have a Fee simple without the word heirs becaus the grantor hath a Fee simple in consideration whereof he granteth the Rent Jura publica anteferenda privatis Litt. Com. 130. a. jura publica ex privatis promiscue decidi non debent And therefore in protection either for being in the Kings service Mirror c. 3. Sect. Britton 281. as the Kings Souldier or of his Councell as the Kings Ambassadour pro negotiis regni both these things for the publick good of the realm private mens actions and suit must be suspended for a convenient time Jus accrescendi praefertur oneribus Litt. com 185. a. 453.3.13 As if one joynt-tenant grant a common pasture or of Turbary Estovers or Corody c. out of his part or a way over the Land this shall not bind the survivour Jas accrescendi praefertur ultimae voluntati If Litt. Com. 185. b. two joyn-tenants be of Land in fee simple and one of them deviseth that which to him belongeth by his testament and dyeth this devise is void because the Survivour claimeth by the first Feoffor Jus descendit non terra Litt. com 345. a. b. As when an estate is turned to a right by disseizin discontinuance c. but in case of a title the Land descends Justum non est aliquem ante matrimonium natum Coke l. 8.101.14 E. 2. bastard 26. mortuum facere bastardum qui toto tempore suo pro legitimo habebatur Doc. Stud. If bastard Eigne after the fathers death enter into the land and occupy it during his life without interruption of the mulier puisne and dye seized the mulier is barred for ever L. Lex est summa ratio Litt. Com. 97. b. The common Law is nothing else but Reason which is to be understood of an artificial perfection of reason gotten by long study observation and experience and not of every mans naturall reason for nemo nascitur artifex This legall reason is ratio summa And therefore if all the reason that is dispersed into so many severall heads were united into one yet could he not make such a law as the Law of England is because by succession of many ages it hath been refined by an infinite number of grave and learned men Licet Tenenti vetus opus reficere 44 E. 3.21 44.11 H. 4.32 non novum facere A Tenant may cut down Trees for the amend ment of houses or reparation of them But if the necessity of a new house comes in Question as to build a Stable or if no house be built upon the Land at the time of the lease the Lessee may not cut down Trees to make a house Loquendum ut vulgus Coke l. 4.46 a. Ployd 169. Coke l. 4.64 b. l. 7.11 Words shall be taken according to the vulgar and ordinary construction as though a person attainted be a person convict and more And therefore it is the office of Judges to take and expound the words which the common people use to expresse their intent by according to their intent and not according to the true definition Lex non praecipit inutilia Litt. Com. 126.127.79 a. 197. a. A villain shall not by the Law have any appeal against his Lord for in appeal of Mayhem a man shall recover but his damages and if the Villain in that case recover damages against his Lord and from the villain and so the recovery void Lex semper intend't quod convenit rationi Litt. com 78. b. 182. a. The Guardian in Chivalry shall have the custody of the heir and his land untill become to his full age of one and twenty years because by intendment of Law the heir is not able to do Knights service before that age which is grounded upon apparant reason Lex spectat natura ordinem Litt. com 92 a 97. Ployd 540. If tenant in socage hold of the Lord by Fealtie and a rose the Lord shall have for his reliefe a Rose c. or other flowers the tenant dyeth in winter the Lord cannot distrain for his relief untill the time that roses by course of the year may have their growth Lex non cogit ad impossibilia Litt. Com. 231. b. If a deed remain in one Court it may be pleaded in another Court without sueing forth Lex libertati dat favorem Litt. Com. 124. b. 139. a. If a villain sue an action of trespass or any other action against his Lord in one County and the Lord saith that he shall not be answered because he is his villain regardant to his Mannor in another County and the Plantiff saith that he is free and of a free estate and not a villain this shall be tryed in the County where the Plantiff hath conceived his action and not in the County where the Mannor is and this is in favour of Liberty Lex citiùs tolerare vult privatum damnum Litt. Com. 152. b. quà m publicum malum If there be Lord Mesne and Tenant and the Tenant holdeth of the Mesne by service of five shillings and the Mesne holdeth over by service of twelve pence If the Lord Paramont purchase the Tenancie in see then the service of the mesnalty is extinct because when the Lord Paramont hath the Tenancy he holdeth of his Lord next Paramont to him and if he should hold this of him which was Mesne then he should hold the same tenancy immediately of divers Lords by divers services which should be inconvenient and the Law will sooner suffer a mischief then an inconvenience and therefore the Signiory of the mesualty is extinct Liberata pecunia non liberat offerentem Litt. com 207. a. If an
and against reason that a man shall be Tenant of an estate of inheritance to another and the Lord should not have any manner of service for if he does not fealty hee shall not do any manner of services to his Lord Litt. Com. 188. a Ployd 419. Bracebridge's case Nihil de re accrescit ei qui nihil in re quando jus accresceret habet If two joynt Tenants be of a Rent and one of them disseize the Tenant of the Land this is a severance of the Joynture for a time for the moity of the Rent is suspended by unity of possession and therefore cannot stand in Joynture with the other moiety in possession And here if one of them die there shall be no survi vour For there shall never be any survivour unlesse the thing be in joynture at the instant of the death of him that first dieth Non refert an quis assensum praebeat verbis au rebus factis 44 E. 3. fines 37.37 H. 6.17 7. E. 3.50 If the Baron accept the grant of a Reversion that amounteth to an Attornment 44. E. 3.37 Hee which hath interesse termini cannot by express words surrender it but the acceptance of a new Lease shall drown it Non valet impedimentum quod de jure non sortitur effectum Coke l. 4.31 Frenches ease Litt. 361. h. Quod contralegem sit pro infecto habotur If Copy-hold Lands be forfeited or escheat and the Lord Lease them for years or life or any other estate by Deed or without Deed this Land can never again be granted by Copy for the Custom is destroyed For during these Estates the Land was not demisable by Copy But if the interruption be tortious as by Disseizin and Discent false Verdict or erroneous Judgement there it may be granted again by Copy Non afficit conatus nisi Coke l. 6.4 Mildmay's case sequatur effectus A gift in tail upon condition that his Estate shall cease if he go about to alien c. This condition is void for endeavour of a breach is not a breach Non est baeres viventis Litt. Com. 22. b. 217. a. If a man by Deed make a Lease for years the remainder to the right heirs of J. S. and the Lessor make livery to the Lessee secundum formam Chartae this Livery is void because during the life of J. S. his right heir cannot take and in that case the Free-hold shall not remain in the Lessor and expect the death of J. S. during the term For albeit J. S. dye during the term yet the remainder is void because a Livery of seizin cannot expect Non valet pactum de re meanon alienanda Litt. Com. 223. a. As a Feofment upon condition that the Feoffee shall not alien the condition is void Nullum iniquum in jure praesumendum Coke l. 4. fol. 70. Hynde's case Records are so high and sacred that they import in themselves inviolable verity which if any gainsay they shall be tryed only by themselves and not by the Country And if averment against a Record should be permitted then the effect and validity of the Record should be tryed by the Country which is against the Rule of Law Nullum iniquum est in jure praesumendum Nullum tempus occurrit Regi Litt. Com. 118. a. 90. b. 119. a. Ployd 156.159 9 H. 6.21.12 H. 7.12 For if the villain of the King purchase any lands and alien before the King upon and office found for him doth enter yet the King after Office found shall have the Land Nullum semile est idem Litt. Com. 43. b. Tenant by Statute Merchant Staple or Elegit are said to hold land ut liberum tenementum untill their debt be paid Yet in truth they have not Freehold but a Chattle which shall go to the Executors and the Executors if ousted shall have an Assize But is similitudinaric because they shall by the Statutes have an Assize as a Tenant of the Freehold shall have and in that respect hath similitude of a Freehold but no like is the same thing Nullus commodum capere potest de injuria sua propria Litt. Com. 148. b. If B. make a Lease of one Acre for life to A. and A. is seized of another Acre in Fee and A. granteth a rent-charge to B. out of both Acres and doth waste in that Acre which he holdeth for life B. recovereth in waste The whole Rent is not extinct but shall be apportioned and yet B. claimeth one Acre under A So if A. had aliened in Fee and B. had entred for the forfeiture O. Oninis privatio praesupponit habitum A person maketh the Lease for years reserving a Rent and dieth the Lease is determined by his death Also in a reall action a Parson Vicar Archdeacon Prebend shall have did of the Patron and Ordinary as Tenant for life shall have So that to many purposes a person hath in effect but an estate for life and to many a qualified Fee simple But the entire Fee and Right is not in him and therefore he cannot discontinue the Fee simple that he hath not nor ever had for Omnis privatio praesupponit habitum Omnia quae movent ad mortem sunt deodanda Coke l. 5.190 Foxley's case Stamf. l. 1. c. 12. fol. 20 If a man ride in a Chariot and the Chariot fall upon him and kill him the Horses as well as the Chariot shall be a Deodand Omne testamentum morte consummatum est Coke l. 4. fol. 60. Forse and Hemblings case Lit. 112. b. The making of a Will is but an inception thereof and it doth not take any effect till the death of the Devisor Omne majus continet in se minus Coke l. 5. 114. Wade's case If a man be bound in a Bond for a sum of money to be paid at a certain day and at the day the Obligee tender more than the summe yet it is a good tender for the reason above-said Litt. Com. 43. b. Omne majus trahit ad se minus The King cannot be said to be a Minor for when the Royall Body Politick of the King doth meet with the naturall capacity in one person the whole Body shall have the quality of the Body politick which is the greater and more worthy and wherein is no minority Omnia quae sunt uxoris sunt ipsius viri Litt. Com. 112. a. b. And therefore she is disabled to contract with any without the consent of the husband neither hath she power to dispose of any personal estate in her own right Omnis ratihabitio retrotrahitur Litt. Com. 180. b. mandato aequiparatur As if A. disseize one to the use of B. who knoweth not of it and B. assent to it in this case till the agreement A. was Tenant to the Land and after agreement B. is Tenant of the Land but both be disseizors Coke l. 5. fol. 321. Playters case
two-fold like those two great Lights Bracton l. 9.23 3 H. 6.55 which God hath set in the Firmament of our Heart Nature and Reason Lex naturae est ratio summa insita in hominis natura quae jubet ea quae faci enda sunt prohibetque contraria Cic. l. 1. de legibus The Law of Nature is Soveraign Reason fixed in mans nature which ministreth common Principles of good and Evill The Law of Reason is that which deduceth Principles by the discourse of sound reason The rules of Reason are of two sorts some taken from Forraign Learnings both divine and humane the rest proper to Law it self Of the first sort are the principles and sound conclusions from forraign Learnings First from Divinity the Doctrine of Religion To such Lawes of the Church as have warrant in holy Scripture 34. H. 6.40 our Law giveth credence 1. The Sabbath day is no day for Law-dayes 1 Eliz. Dy. 168. F.N.B. 17. f. 12 E. 4.8 Dies Dominicus non est juridicus If a Scire facias out of the Common Pl as bears Teste upon a Sunday it is error Of Grammar 2. Words in construction must be referred to the next Antecedent when the matter it self doth not hinder it An Indictment against I. S. serviens I. D de D. im com Mid. Butcher 9 E. 4. 4â— 32 H. 8. Dy. 46. b This is not good for Serviens is no addition and Butcher referreth to the Master which is the next Antecedent From Logick In the Maxim of Causes and Effects The Cause ceasing 5 E. 4.8 b. 7 El. D. 293. b. 13 El. 401. 13 E. 4.10 b. the Effect doth likewise cease The King granteth an Office to one at will and ten pound-fee for life 14 H. 7.2 pro officio illo Now if the King put him from his Office the Fee shall cease 4. Things are construed according to that which was the cause of it 21 E. 4. 68 b. 14 E. 3.14 b. 14 Ass pl. 20. 3 E. 3.84 One imprisoned till he be content to make an obligation at an other place and afterwards he doth so being at large yet he shall avoid it by duress of imprisonment 5. Things are construed according to that which is the beginning thereof 33 Ass pl. 7. 10 Eliz. Dy. 266. b. If a servant departed out of his Mâ—ster's service kill his Master upon malice that he bare him whilst he was his servant it is petty Treason 6. And therefore a derived power cannot be greater Litt. 6. 28 Ass pl. 4. 2 E. 4 1â— than that from which it is derived The Atturney of one that is disseized cannot make claim of from the land if the Disseizee himself durst have gone to the land 7. Things are dissolved as they be contracted 19. E. 4.1 5 H. 7.33 b. 5 H. 7.7 b. An Obligation or other matter in writing cannot be discharged by lan Agreement by word 8. Things grounded upon an ill and void beginning cannot have a good perfection 10 El. Dy. 344 An Infant or Feme covert make their Will and publish it and after dying of full age or sole yet the Will is nothing worth 9. He that claimeth paramount a thing 2 3. El. Dy. 187. shall never take benefit nor hurt by it An Executor recovereth and dieth intestate Administration of the first Testator is committed to J. S. J. S. shall not sue execution upon this Recovery for he is Administrator to the Testator Paramount the intestate 10. Things are construed according to the end 19 E. 4.3 13. E. 3. Joynder in ayd 10. 50. Ass pl. 2. Vouchee upon a Grand cape ad valentiam shall not lose the land though he cannot save his default For the Processe is onely to this end to have him to appear In the Maxim of Subjects and Adjuncts Where the foundation faileth 3. E. 3.74 b. 49 E. 3.8 all goeth to the ground A Church appropriated to a spiritual Corporation becometh disappropriate if the Corporation be dissolved Things incident cannot be severed 7 E. 4.11 12 El. 12. 381. Dy. 12 El. 12.379 19. H. 8. Br. Incidents 34. 3. E. 3 Ass 441. Lord and Tenant by fealty and homage the Lord releaseth his fealty this is void for fealty is incident to homage Things by reason of another are of the same plight Two Copereeners make partition and one covenants with the other to acquit the land 42 E. 3. 6 E 6. Dy. 72. b. F. N. B. 21. b. Now if the Covenantee abett his part the Alienee shall have a Writ of Covenant Personall things Cannot be done by another 7 H. 4.19 21. E. 4.34 Suit of Court cannot be done by another They cannot be granted over as matters of pleasure ease 12 H. 7.25 19 H. 8.10 7 H. 4.36.11.3.4.1 12 El. 179. Br. Licences 25. trust and aeuthority A license to hunt in my Parke to go to Church over my ground c. cannot be granted over So a warrant of Atturney made to one to deliver seizin he cannot grant this his authority over They dye with the person When a corporal hurt or damage is done to a man 2 H. 8.21.1.2 P. M. 114. as to beat him c. if he or the party beaten dye the Action is gone Among the disagreeable arguments First from these that differ only is a certain respect and reason not indred and in nature Things do inure diversty according to the diversity of Time Lands given in Frank marriage reserving a rent 26 Ass pl. 66. the reservation is voidâ— till the fourth degree past and afterwards good Person viz. Of the same person One that hath a rent-charge going out of the wive's lands 14. H. 8.6 releaseth it to the Husband and his Heirs the Husband yet shall not have it but it shall inure to him by way of extinguishment onely as seized in the right of his wife Severall persons A man makes a lease of a Mannor except an acre 1 2 P. M. 104. 11 E. 4.2 this acre is no part of the mannor as to the Lessor but as to him that hath right to demand the Mannor by an eign title it remaineth parcell and therefore he shall make no foreprise in his writ Then from Relatives No man can doe an act to himself 3 El. Dy. 188. 13 H. 8.22 Lit. 147. b. And therefore if the Sheriff suffer a common recovery it is error because he cannot summon himself Of Comparisons from the equalls Things are to be construed secundum equalitatem rationis If two four 26 Ass pl. 37. Coke 136. Sir Will. Herbert's case Bract. l. 1. c. 23. H. 8. Fitz. or more men being severally seized of land joyn in a recognizance all their lands must equally be extended From the greater and the lesse The greater doth contain the lesse 3 4 P. M. Dy. 150. b. By a pardon of Murder man-slaughter is pardoned A matter of
assumption or promise doth then only bind when it is made upon good consideration In Actions It yieldoth favour when for the doing of it there is necessity Br. Executor 172. A man in his own defence for the necessity of the saving of his life and a Champion in a Writ of Right for the necessity of Triall may kill another Whither refer Conformity which is a kind of necessity Rent must be demanded though no man be upon the land to pay it Of Colour If the heir indow the Ancestors wife 41 H. 3.28 22 Ass pl. 64. though she were not dowable yet she shall hold in Dower It priseth acts in Law higher then those that are done by the party 2. 3. P. M. 134. b. 29 Ass pl. 23. 49. E. 3.15 2 H. 7.5 For equality of partition among Coperceners a Rent granted shall be a Fee-simple without the word heirs and issuing out of the land without so expressing it in the Grant It reputeth that men will alwaies deal for their own best advantage And therefore Believeth against the party whatsoever is to his own prejudice For the time of doing things It countenanceth more Things done in time of peace Litt. 97. 7 E. 3. Darren presentment 2. F. N. B. 31. b. than in time of war A Diffeizin and Descent in time of war shall not toll the Entrie of the Dasseized Things done in the day more than in the night A man must not distrain in the night time for Rent behinde Where things are fit to be straitned to a time is esteemeth according to the nature of the things Sometimes a whole day sufficient Where goods are lost in War and recovered from the enemy by another of the Kings subjects the owner shall have them again if be make fresh suit before the Sun set else not Sometimes a whole year The Lord loseth his Villain for ever if a Villain flie into ancient Demeasn and there continue a year and a day without claim of the Lord. The third offence it estremeth more heinous The third Writ not returned by the Steriff is a contempt whereupon an Attachment lieth Political Precepts follow The Law savoureth Things for the Common-weal 8 E. 4 18 b. 14 H. 8. 25.29 H. 8 Dy. 36. b. Fishermen may justfie their comming upon the land adjoyning to the Sea to dry their Nets for Fishing is for the Common-wealth and fustenance of all the Realm Publick quiet And therefore Common Error goeth for Law Ploy Manxel's case f. 2. 2 R. 3.7 Whether a common Recovery be a Bar unto an Estate Tail or no is not to be disputed because a great part of the Inheritance of the Realm doth depend upon it Of this kind are those Occonomicks The Husband and the Wife are one person And therefore F. N. B. 78 Abridgement Ass pl. Brook Denisn 2. The Wife is of the same condition with her Husband Franck if he be free Denizen if he be an Englishman though she were a neise before or an alien born They cannot sue one anothâ—r 21 H. 7.29 b. Perk. 40. or make any grant unto the other or such like If a woman marry with her Obligor the Debt is extirect and she shall never have an action against the co obliger if another were bound with him because the suit against her husband by enter-marriage was suspended and therefore being a personal action and suspended against one it is discharged against both Vpon a joynt-purchase during the coverture either of them taketh the whole Litt. 65.39 H. 6.45.21 H. 2. Judgment 63. If the husband alien land c. so given she shall recover the whole in a Cui in vita alter his death and the Warranty of one of them or his Ancestors is a bar of the whole against them both The Husband is the womans head And therefore All she hath is her hurbands If goods be given to a Feme Covert 21 H. 7.29 Litt. 148.14 El. Pl. 418. 191 16 E 4.8.7 H. 6.1.39 H. 6.27 and another the Joynture is strait-way severed and the husband and the other are Tenants in common and the Executors of the husband shall have all the goods that were his wives Her will is become his will and subject unto it If an action of Trespass be brought against Husband and Wife and the wife come in by Cepi corpus and the Husband doth not appear she must be let at large without any Mainprise till her husband doth appear but he appearing may answer without her therefore a protection cast by the Husband serveth for the wise also because she cannot answer without him Last come the Morall Rules The Law favoureth right Litt. 158. When two are in a house or other Tenements and one layes claim by one Title the other by another Title the Law adjudgeth him in possession that hath the right to have the tenements And therefore Suffereth things against the principles of Law F.N.B. 69 b. 4 H. 7.40.11 H. 7.10 rather then a man to be without his remedy The Tenant shall have a replevin against the Lord that did wrongfully distraine though the beasts be come back to himsell because he can have no action of Trespasse against him Hateh wrong So that So man shall take benefit of his own wrong 13 H. 7.1.31 H. 6.60.27 H. 8.11 One in execution escapes and the Jaylor gets him again the party if he will may have him to remain in execution for him still for the escape is his own wrong And therefore Of it selfe projudiceth no man 12. E. 4.8.48 E. 3.27 He that misdemeaneth authority that Law giveth as if one come into a Tavern and will not goe out in seasonable time or distrein for rent and kill the distress shall be a wrong doer ab initio Especially for things that cannot be imputed to his own folly 35 H. 6.3.38 H. 8. Br. The Lord Chancedor's Servant impleaded at the common Law clameth priviledge of the Chancery and before it be discussed whether he shall have it or no the Lord Chancellor dyeth yet his priviledge is allowable still for the act of the Court to advise of it shall not prejudice him And therefore Driveth not a man to shew that which by intendment he knoweth not 10. E. 4.15 2 Mar. 128 4 E. 6.46 One bound in an Obligation to serve J. S. for seven years in omnibus mandatis ejus licitis shall plead that he did serve him lawfully without shewing what service or in what Commandment for no servant can remember all Truth And therefore It disfavoureth Fraud and Covin If a woman hath good title of Dower 18 H. S. 5. and cause I. S. to disseize the Tenant of the Land and recovereth her Dower against I. S. yet this is no good estate of Dower in her for she is privy to an unlawful act which should be the means of her estate Vncertainty whereby truth is inveigled A man grants all his Trees
life by Dedi Concessi this shall inure as a confimation In one thing all things pursuant to be included 2 R. 2. Bar. 309. Upon a Grant of Trees the Grantee may come upon the Land to cut them down and with his carriage carry them thorow the Land 14 H. 8.1 10 E. 3.17 And the Vendee of all ones fishes in his pond may justifie the comming upon the banks to fish but not the digging of a trench to let out the water to take the fish for he might take them by Nets and other devices But if there were no other means to take them he might dig a trench Strongest against him that doth them 2 3. P. M. 140. b. 161. b. Two Tenants in common grant a Rent of 20 s. the Grantee shall have forty shillings But if they reserve twenty shillings upon a Lease they shall have onely one twenty shillings And therefore A man shall not qualifie his own act As 21 H. 7.23 b. if the Obligee releaseth his debt till Michaelmas the debt is gone for ever So a reversion of three acres of land is granted 18 E. 3.53 17 Eliz. Dy. 339. the tenant atturns for one it is a good atturnment for all The construction which otherwise Law would make is altered by the parties Special agreement Lessee for years is excused for waste 40 E. 3.5 Peck 55.56 if the houses be blown down by sudden storm or tempests But in that case if he covenant to keep reparations an action of covenant lies against him Speciall words As a Lease reserving a Rent 27 H. 8.19 30 H. 8. Dy. 42. b. the heir of the Lessor after his death shall have the Rent otherwise if the Lease be reserving to the Lessor Surplusage of words An information upon a Statute made such a day 6 E. 6.84 9 E. 4.28 h. and the day is mistaken is nought though he needed not to have recited the day 9 El. Dy. 255. b. A fained construction which we call a fiction in Law is when in a similitudinary sort the Law construeth a thing otherwise than it is in truth and is of the person thing action and the circumstances thereof time and place Of the person Things done by another are as if they wert done by one's selfe 27. H. 8.24 A promise to one's wife in consideration of a thing to be performed by the husband if the husband upon his comming home agree and perform the consideration he may plead this promise as made to himself So if my servant sell my goods and I agree I shall have an action of debt supposing be bought of me Of the thing we have these two Rules A thing that cometh in lieu of another 18 E. 3. rec in val 26.48 E. 3 11.6 H. 4.1 to be as if it were the same One shall recover in value against the heir upon the Ancestors Warranty lands which the heir took in exchange for lands descended A thing to be all one with that whereunto it doth amount The Maxime of a Bastard eigne is that the mulier puisne must make an entry upon him or else he gaineth the right yet a continual claim made by the mulier puisue 14 H. 4.9 14 H. 8.13 5 H. 7.1 destroyeth his right for it amounteth to an Entry So a Lease for years and a Release amount to a Feoffment And therefore A thing that should not be done to be as if it were not done 20 El. Dyer 362.18 El. Dyer 362. A man makes a Lease for years of a house with certain implements reserving a Rent The Executors after the Testators death receive the Rent yet it is no assetts in their hands for the whole Rent belongeth to the Heir So of a thing done in a time that it should not A man seized in fee le ts for ten years 1 E. b. Br. 18. and after selleth the land and taketh it back to him and his wife and then the husband and wife let it for 20 years reserving a Rent The husband dieth the wife accepts this rent during the first ten yeares By this the second Lease is not affirmed 21 El. 563. for the acceptance of a Rent before the Lease beginneth and so before any Rent be due is no acceptance at all To the circumstance of Time these two Rules pertain Priority of time is imagined in things Done together One deviseth a term for years to his son 21 El. 540. and that the wife shall have it during the son's minority This is first a Devise to his wife and after to the son when he cometh of full age Happening in an instant A Mesualty descends to the Tenant of the Land 11 H. 7.12 7 H. 46. 9 E. 4.21 Though the Mesualty be at the same time and instant extinct yet the Tenant shall pay relief if he be of full age or be in Ward if he be within age viz. where it is holden by Knights service Things relating to a time long before be Litt. 92.36 H. 6.7 as if they were done immediately from that time Where the wife is endowed by the heir of the husband's lands she shall be said to be in immediately from the husband And therefore if the husband were a Disseizor and the heir in by discent yet the Disseizee may enter upon the wife These Rules of common reason do many times cross and encounter one aenother which is the greatest difficulty that is found in the arguing of Cases But to help this the generall ground is according to the former Rule that Those prevail Litt. 110. b. 140. b. 32 H. 8. that carry the more excellent and perfect reason with them Tenant for life makes a Lease for life Br. gar 18.28 E. 3.20 b. Br. gar 17.35 H. 6.3 9 El. Dy. 264. b. 11 H. 7.9 Perk. 41.13 H. 8.15.7 H. â— 9 without naming whose life this shall be intended for his own life Rule 74. for else it were a wrong But if Tenant in tail make such a Lease for life this is a discontinuance and for life of the Grantee Rule 86. for it is strongest against the Grantor and most beneficiall for the Grantee FINIS