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
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
Oportet ut res ceria deducatur in judicium Playter brought an action of Trespasse against one W. Wuare clausum suum fregit pisces suos cepit without shewing the number or nature of the fishes and it was resolved that the Count should have comprehended the fishes in certain that the Defendant might have a certain answer and upon which a certain Judgement might be given P. Pater est quem nuprie demonstrant Litt. Com. 123. a. And therefore if a Villain have a Bastard by a woman and marrieth her the Bistard is no Villain because the Villain cannot be said to be his father he being a Bastard Pendente lite nihil innovetur At the Common Law Litt. Com. 344. b. if hanging the Quare impedit against the Ordinary for refusing of his Clerk and before the Church were full the Patron brought a Quareimpedis against the Bishop and hanging the Suit the Bishop admit and institute a Clerk at the presentation of another In this case if Judgement be given for the Patron against the Bishop the Patron shall have a Writ to the Bishop to remove the Incumbent that came in pendente lite by usurpation But since Westm 2. among other things it is enquired Ex officie if the Church be full and of whose presentation Perspicue vera non sunt probanda The Lord Cook Litt. Com. â— 16. b. in his Commentary upon Littleton observes that Mr. Littleton never citeth any Authority through his whole Book but when the case is rare or may seem doubtfull which appeareth in this that he putteth no case but hath warrant of good authority in Law The like of Justice Fitzherbert in his Natura Brevium that he never citeth authority but when the case is rare or doubtful Plus precat author 13 H. 7.10 Stamf. l. 1. c. 45.21 E. 4.71 quam actor If one be present at the death of a man and incite another to strike and kill him by this he is principal as well as he that killed him Litt. Com. 14.6 Possessio fratris de foede simplici facit sororem esse haeredem A man seized of lands in Fee-simple hath issue a son and a daughter by one venter and a son by another venter and dieth and the eldest son enters and dies without issue the daughter shall have the land and not the youngestion The like of an Use Ib. 10. b. Propinquior exeludit propinquum propinquus remotum remotus remotiorem And therefore the Fathers brother and his posterity shall inherit before the grandfathers brother and his posterity Proximus sum egomet mihi And therefore in Legacies it is reason that the Executors shall have preferment of satisfaction before others and the Law maketh allowance to them before any others Q. Quando lex aliquid concedit concedere videtur id Litt. Com. 55. a. 153. a. Coke Rep. Lyford's case sine quo res esse non potest If Lessee at will soweth the land and the Lessor after it is sown and before the corn is ripe put him out yet the Lessee shall have the corn and shall have free entry egresse and regresse to cut and carry away the corn Quando aliquid fieri prohibetur ex directo Litt. Com. p. 23. b. prehibetur per obliquum A Feosment upon condition that the Feoffee shall not alien to such a one naming his name is good And in this case if the Feoffee infeoff J. N. of intent and purpose that he shall infeoffe J. S. some hold this a breach of the condition Quando jus Domini Regis subditi concurrunt Litt. Com. 77. a. jus Regis praeferri debet If a man hold lands of the King by Knight-service in Capite and other lands of other Lords and dieth his Heir within age the King shall have the Wardship of all the lands by his prerogative Quaelibet haereditas naturaliter ad haeredes haereditabiliter descendit Litt. Com. 11. a. nunquam naturaliter ascendit nisi a latere If there be father uncle and sonne and the son purchase land in fee-simple and die without issue living his father his uncle shall have the Land as heir to the son Quae in partes dividi nequeunt 14 E. 3. Fitz. 1. Kitchin fol. 134. a. solida a singulis praestentur If my Tenant that holdeth of me by a Harriot alien part of the land to another every one of them shall pay Harriot because it is an entire thing Quaelibet concessio fortissime contra donatorem interpretauda Litt. Com. 42. a. If Tenant in Fee make a lease for life without mentioning for whose life it shall be taken for the life of the Lessee and shall be taken more strongly against the Lessor Qui non habet in aere Hobart's Rep. fol. 133. luat in corpore And therefore the Law hath provided several executions for the executing of the Law and he that hath not to pay of his goods c. must suffer in his body by imprisonment Qui ex damnato etitu nascuntur Litt. Com. 3. b. 78. a. 123. a. inter liberos non computentur A man makes a lease to B. the remainder to the eldest issue male of B. and the heirs males of his body B. hath issue a bastard son he shall not take the remainder because in Law he is not his issue Qui haeret in litera haeret in cortice The statute of Glouc. c. 5. which giveth the action of waste against the Lessee for life or years which lay not against them at Common Law speaketh of one that holdeth for term of years in the plurall number and yet though it be a penall Law whereby treble dammages and the place wasted shall be recovered yet tenant for half a year being within the same mischief shall be within the same remedy though out of the letter of the Law Qui ad mit medium dirimit finem Litt. Com. 161. a. 26 Ass 17.3 E. 4.2 And Qui obstruit aditum destruit commodum And therefore if a man be disturbed to enter and manute his land this is a disseizin of the land it self Qui peccat ebrius Litt. Com. 247. a. luat sobrius A drunkard who is voluntarius daemon hath no priviledge thereby but what hurt or ill soever he doth his drunkennesse doth aggravate it Qui per alium facit Litt. Com. 258. a. per seipsum facere videtur If the master command the servant to go to the Land and make claim there to avoid the discent if the servant doth all that which is commanded and which his Master ought to do there it is as sufficient as if his Master did it himself Qui semel Actionem renuntiavit Litt. Com. Coke l. 8. f. 58. Beecher's case amplius repetere non potest A retraxit is a barre of all actions of like or inferiour nature Qui sentit commodum Coke l. 5.99 Rook's case c. l. 5.24 Dean and Chapter
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
judgement between the King and the Prior of Worcester concerning an Appropriation Et examinatis intellectis recordo et processu coram toto Concilio c. Finis rei attendendus Coke l. 5. 87. The end and fruit of a Suit is satisfaction 14 H. 7.8.33 H. 6.47 but execution of the body is no satisfaction but a gage for the debt And therefore after his death he shall resort to another execution Filiatio non potest probari Litt. Com. 126. a. A man leaveth his wise enseint with a child issue shall not be taken that she was not enseint by her Husband on the day of his death for Filiatio non potest probari Firmior est operatio legis quam dispositio hominis Litt. Com. 224. a. A Lease upon condition Coke l. 10.67 b. that if the Lessee make any waste 37 H. 6.16 a re-entry if a stranger doth waste Dy. 281. Doct. stud l. 2. c. 4. he may re-enter Yet if the Tenant had been bound in an obligation that he shall do no waste he shall not forfeit his Bond by the waste of a stranger Frustra sit per plura quod fieri potest per pauciora Coke l. 6.167 a. Ployd 191. b. 9 H. 7.24 If the King by his Patent reciting the estate tail grant the reversion and further grant the Lands in possession those several Grants in one Patent are as strong in Law as if the King by one Patent had recited the estate tail and granted the reversion and by another patent the Lands in possession Furiosus furore suo punitur Litt. Com 247. b. Ployd 19. a. Litt. 124. b. And therefore if a Mad man commit Felony he shall not dye for it for though he hath broken the words of the Law yet he hath not broken the Law G Generale nil certum implicat Coke l. 2. fol. 33. Doddington lib. 8.98 a. Baspoles case If a man be bound to be Non suited in all actions that he hath against another in the common Bench he may say that he hath no action therein otherwise if the condition be particular viz. that he shall be non-suited in a Formedon So in arbitrement when the submâ—ssion is general an award of one cause though there were more between them is good Generalibus semper specialia insunt Ployd 467. b. 68. a. As the Stat. of Gloucester giveth an action of wast against him which holdeth for years which is in the plurall number yet it may be taken for him that holdeth for a year or half a year Generalis clausula ad expressa non refertur Coke l. 4. fol. 80. Noke's Case An Assignee of a lease shall have a Writ of Covenant upon the words Demise and Graunt yet if there be an expresse Covenant that the Lessee shall enjoy it without eviction of the lessor or any claiming under him this express covenant qualifieth the generality of the covenant in Law and restraineth it by mutuall consent of both parties that it shall not extend to the Assignee Generalis clausula non porrig itur ad ea Coke l. 4.131 Dy. 56.6 quae antea sunt spicialiter comprehensa When a deed at first contains special words and then concludeth in words general both shall stand As Lands given to one and the heirs of his body habendum to him and his heirs he hath an estate tail and a fee simple expectant Generalia sunt praeponenda sin gularibus Fâ—â—z Nat. B ev 2. a. As in a Writ or Plaint the general shall be put in demand before the special as Messâ—age before lands Lands before Meadow Mendow before Pasture Pasture before Wood Wood before Jancary c. H. Haeres est pars antecessoris Lit. Com. 22. b. Coke l. 7.12.10 H. 7.8 Dy. 868. Kep 151. And therefore if Lands be given to a man and his heirs all his heirs are so totally in him as he may give the Lands to whom he will Haeres legitimus Coke l. 7.44 a. Litt. 7.6 est quem nuptiae demonstrant One who is ingendred in a vowtry during the coverture is a Mulier by the temporal and common Law Haeres non tenetur ad debita antecessoris reddenda Britton fol. 65. b. Litt. Com. 209. a. 383. b. nisi per antecessorem ad hoc fuerit obligatus praeterquam debita regis tantum If the heir be not named in the obligation he shall not be bound by the deed of his Ancestor except to the King Hermaphrodita tam masculo quam faeminae Litt. Com. 8. a. g. b. comparatur secundum praevalescentiam sexus incalescentis An Hermaphrodite shall be heir either as male or female according to that kind of the sex which doth prevail and accordingly it ought to be baptized I Id certum est Litt. Com. 45. b. 43. b. 96. a. Ployd 273. b. Dy. 91. b. 44. a. quod certum reddi potest Albeit there appear no certainty of years in a lease yet if by reference to a certainty it may be made certain it sufficeth As a lease to A. 11 H. 11. 7.17 for so many years as B. shall name when B. hath named the years it is a good lease for so many Idem semper proximo antecedenti refertur Litt. Com. 20. b. As if a man let Lands to A. for life the remainder to B. in taile the remainder to C. in forma praedicta this remainder is void for the incertainty But if it had been the remainder to C. in eadem forma this had been a good estate-tail Ignorantia juris non excusat Doct. St. 2. c. 46. Coke l. 1. fol. 177. Mildmay's Case If a statute penall be made and it is enacted that the statute shall be proclaimed by such a day in every Shire and it is not proclaimed before the day yet if any offend against this statute he shall not be excused for the not proclaiming of it for he is bound to take notice of the Law at his peril Ignorantia facti excusat Coke l. 2. fol. 3. b. Mauser Doct. Stud. l. 2. c. 47. 31 E. 3.3 As if an illiterate man be bound to seal a Deed he is not tyed to do it if there be not some present to read it if required or if it be read amisse he may plead non est factum Ignoratis terminis Coke Lit. 177. a. 2. a. 68. a. ignoratur ars Every art hath its vocabula artis which being not conceived that art cannot be comprehended Therefore the significations of words in all arts and sciences are necessary which Master Littleton and Coke upon him ordinarily observe Impotentia excusat legem Coke Litt. 29. a. 258. b. 263. b. Coke Rep. Laughter case Coke l. 98. A man seized of an advowson or rent in fee hath issue a daughter who is married and hath issue and dies seized the wife before the rent became due or the Church became void
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
and Wood upon black acre 1 Mar. Dy. 91. Manxel's case 10. b. that may reasonably be spared this is a void Grant unlesse it be referred to a third person's judgement what may be spared Variance If the Writ vary from the Obligation 11 E. 4.2 4 Ass pl. 2. 32 H. 6.3 7 H. 6.22 or other speciality in name sirname or such like in an action of debt and annuity brought upon it or the Count vary from the Writ As in an action of debt of 20 l. 8 E. 4.2 and declare but a debt of 10 l. both shall abate Contrariety In trespass de domo fracta muris ejusdem domus fractis 21 E. 4.36 4 E. 4.29 21 H. 7.21 2 3 P. M. 153. The defendant cannot plead not-guilty to the breaking of the house and justifie the breaking of the walls for house and walls are all one and he cannot of the same thing both justifie and plead Not-guilty for by the justification he acknowledgeth himself guilty so they are contrary And therefore It will not drive a man to justifie that he goeth about to defeat â—0 H. 7.9 He that bringeth an Assize of the Mastership of a Chappell against J. S shall not need to name J. S. the Master of the Chappell because the Plaintisse is to disprove his interest Diligence And therefore It hateth folly and negligence Litt. 95. 5 E. 3.222 A discent cast during the Coverture where the wife is disseized barreth her not of her entry after her husbands death But if a Feme-sole be disseized and then taketh a Husband there a discent during the Coverture taketh away her Entry for it was her folly to take such a Husband that entred not in time Speeding of mens causes And therefore It hateth delayes He that pleadeth a record in delay 3 H. 6.15 12 H. 7.3 8 H. 7.9 2 H. 6.1 as to prove the Plaintiff excommunicate must have it ready to shew otherwise it is if he plead it in bar Vnnecessary circumstances One that is in Court ready to joyn with the Defendant 8 H. 6.1 1 H. 6.4 may do it without process As the Vouchee the Plaintiffs lessor being praid in aid of when the defendant in a replevin avoweth upon him or the Mesne when the Lord Paramont avoweth upon him But joynder in aid cannot be by Attorney without process Circuit of action Upon the grant of a ward with warranty Manxel's case â—7 b. the Defendant in a writ of right of ward may rebutt the Plaintiss by that warranty and shall not be driven to bring an action of covenant for avoiding circuit of action The Law construeth things with equity and moderation And therefore Restraineth a general act if there be any mischief or inconvenience in it Litt. 110. Tenant for life lets to another for life without expressing whose lives it shall be taken for the lessors own life for else it were a forfeiture of his Estate Moderateth the strictness of the Law it self By abridging diminishing and taking away the severity of it and mollifying the hardness of it A morall vertue as Plowden calleth it and may appear by Aristotle who treating of it defineth it A certain correction of the Law wherein it is any way wanting because of the generality of it It is no trespass to carry away a mans wife against his will to a lawfull end As to sue a divorce against her Husband or to have the peace of him before a Justice of Peace To the best And therefore Every act to be lawfull when it standeth indifferent to be lawful or not 6 11 H. 7.5 In an action of trespasse two issues are joyned triable in two Counties One in London another in Middlesex onely without saying which of the issues it should try this shall be taken to try the issue in Middlesex onely for so the venire facias is lawful and not in both Counties which is against Law And therefore it is a discontinuance of the Issue in London and not a mis-continuance Thus far of Rules drawn from their Sciences There follow those that are proper to our selves which we call Law-constructions And these are natural or fained Of the first sort we have two notable grounds Law construeth things reasonably And therefore With a reasonable intent A bargain and fale of Land and a reversion by deed not inrolled the Reversion passeth not no more then the Land 21 H. 7.5 though the Deed without Inrolment may pass the Reversion but it was meant they should passtogether According to the effect A Deed delivered by an Infant 1 H. 6.4 cannot be delivered again at his full age for it took some effect before and was but voydable Otherwise of a Feme Covert or a Resease of one that hath nothing in the land for here the first delivery was meerly void So that he that cannot have the effect of a thing shall not have the thing it self The King shall not be received upon default of Tenant for life 4 Eliz. 241. because the Demandant cannot have the effect of the Receipt viz. to count against him which none can doe against the King but sue to him by Petition To the most validity Tenant in tail Lit. 140. b. makes a Lease for life this shall be intended the Lessee's life And therefore When any joyn in an act it maketh it his act that may do it Lit. 2 7 El. Dy. 191. The Disseizee and the heir of the Disseizor in by discent make a Feoffment by one Deed and Livery this is the Feoffment of the Heir onely and confirmation of the Disseizee When two Titles concur the best is preferred One is disseized Litt. and the disseizor lets the land to the Disseizee for term of years or at will Now if he enter the Law shall say he is in of his ancient and best title Things to be done by him that hath most skill to do them 9 E. 4.4 4 E. 6.15 4 El. 230. Litt. 22.11 E. 4.36 An Obligation upon Conditiou that the Obligee shall bring to the Obligor's shop being a Tailor three yards of Cloth which shall be shapen and the Obligor to make the Obligee a Gown of it the Obligor must shape it So a Merchant agreeth with the King's Collectors that his Merchandise shall be weighed at the Kings Beam and the King shall have his Subsidie as it riseth the Collector must weigh it Void things good to some purpose 10 H. 7.12 1 2. P. M 107. A Feoffment upon Condition to be void as if it had never been yet the Feoffee shall have an Action of Trespasse after the Feoffor's entry for the Condition broken for a Trespasse done by the Feoffor before One thing to inure as another 21 H. 7.3 15 H. 7.7 37 H. 6.4 The King grants to a Town easdem libertates quas London habet it shall be intended the like The Lessor infeoffeth his Lessee for