Quare Impedit 54. but at this day it is remedied by the act 1 E. 3 c. 12. by which it is declared that because that many people may be grieved for it that Lands and Tenements held in chief of the King as all those which hold by grand Serjanty are and alien without leave have been held as forfeited hereafter in such case let a reasonable fine be taken So since that Statute at all times when Lands holden by grand Serjanty have been aliened without licence a fine hath been taken and no seisure ever made for the forfeiture and therefore no forfeiture to be taken for Custome is the best Interpreter of the Law vide etiam L. 10. f. 70. b. Consuctudo manerii est observanda Co. com f. 63. a. consuetudo loci est observanda Brac. l. 2. f. 76. l. 4. f. 28. The custome of the Mannor and the custome of the place is to be observed for there are different customes in many Mannors and places and the customes of one Mannor in some particulars commonly varieth from another And these diversities of customes have grown by reason of the severall Nations who have had government over this Kingdome Britans Romans Saxons Danes Normans which have left part of their Language and part of their usage which difference of usage and custome is to be observed in every place and Mannor for what a Copyholder may or ought to do or not to do the custome of the Mannor must direct it and if there be no custome to the contrary wast either premissive or voluntary of a Copyholder is a forfeiture of his Copyhold Co com f. 63. a. If a Copyholder for life surrender to another in fee it is no forfeiture for that passeth by surrender to the Lord and not by Livery And Copyhold Estates shall not have the collaterall qualities that the estates of the common Law have without especiall custome for the custome of the Mannor is to be observed Coke l. 1. f. 22. a. 23. a. vide ibidem plura f. 28. b. Coke l. 6. f. 67. a. In a common recovery which is had by agreement and consent of parties of acres of land the acres shall be accounted according to the customable and usuall measure of the Country and not according to the Statute De terris mensurandis made in the 33 of Ed. 1. Sir John Buntings case 1 Eliz. So if a man bargain and sell so many acres of wood they shall be measured according to the usage of the Country and that is according to twenty foot to the Rod and not according to the said act for the custome of tho place is to be observed 47 E. 3. 18. Coke l 10. 140. a in Kighleys case It was resolved cleerly that the severall Commissioners of Sewers throughout England are not bound to pursue the Lawes and Customes of Romney Marsh but in case where any particular place within their Commission have such Lawes and Customes as Romney Marsh hath there they may pursue them for the custome of the place is to be observed Consuetudo vincit communem legem coke l. 4. f. 21. Custome overcometh and mastereth the common Law and will not alwaies be ruled by its grounds for a custome and usage of time whereof the memory of man runneth not to the contrary may create and consolidate Inheritances Coke comm f. 185. b. If a man be seised of an house and possessed of divers Heir Looms that by custome have gone with the house from Heir to Heir and by his Will deviseth away the Heir-looms this devise is void for the Wil taketh effect after his death and by his death the Heir looms by ancient custome are vested in the Heir and the Law preferreth the custome before the devise 1 H 5 Executors 108. And so it is if the Lord ought to have an Heriot when his Tenant dieth and the Tenant deviseth all his goods yet the Lord â—â—all have his Heriot for the reason aforesaid And it hath been anciently said that an Heriot shall be paid before a Mortuary wherein the Lord is preferred because the Tenure is in him Co. ibidem Ployd f. 36. b. Whereas the Statute of 1 R. 2. c. 12. doth ordain that the Warden of the Fleet shall not suffer any one who is in execution to go out of Prison by main-prize bail or baston yet it is taken by equity of the said Statute thâ—t if any other Goaler who lets such a one in execution to go out of prison with mainprize bail or baston that it shall be said to be an escape But notwithstanding that it extendeth to all other Goalers so fully as though it had been expressed by plain words yet those of London use to let such go at large with baston in any place within their jurisdiction and shall not be judged an escape in them and the reason of that is not because the statute in equity doth not extend to them but the reason of it is their prescription in that point and all their customes and prescriptions are confirmed by the Statutes by which they may prescribe against the equity and words of the statute which are contrary to their customs and prescriptions as against the statute of Silva caedua and to hold Leet at other times then the statute appointeth and such others ibidem Obtemporandum est rationabili consuetudini tanquam legi coke l. 4. 38. b. Littleton Sect. 170. consuetudo ex certa causa ratienabili usitata privat communem legem We ought to obey a reasonable custom as a Law and a custom used upon a certain reasonable cause depriveth or over cometh the common Law but a custome introduced against reason is rather an usurpation then a custome coke comm f. 113. a. and it is a Maxime in our Law that all customs and prescriptions which be against reason are void coke comm f. 140. a. As if the Lord of a Mannor prescribe a custome in generall that every Tenant in his Mannor that marrieth his Daughter to any man without the licence of the Lord shall pay a fine and have paid a fine to the Lord for the time being this prescription is void for none in such case ought to pay fines but Villains vide ibidem plura So if the Lord of a Mannor do prescribe that for the time being he hath used to distraine Cattell were upon the demeans of his Mannor for Damage-feasant and the distresse to retain till fine were to him for damages at his will this prescription is void for it is a Maxime in Law Aliquis non potest esse judex in propria causa no man can be a Judge in his own case ibidem 141. a. And therefore a Fine levied before the Bayliffs of Salop was reversed because one of the Bayliffs was a party to the fine because he cannot be a Judge and a party coke ibidem So a custome that the Lord shall take for Heriot the beast of a stranger levant and couchant upon the
renunciaverit amplius repetere non potest n. f. 139. a. As a Retraxit is a bar of all other actions of the like or inferior nature for he which once renounceth his action can no more renew it It is a generall rule that non-suite before appearance is not peremptory in any case for that a stranger may purchase a writ in the name of him who hath cause of action and regularly a non suit after appearance is not peremptory but that he may commence an action of like nature againe for it may be he hath mistaken something in that action or was not provided of his proofes or mistaken the day or the like But yet for some speciall reasons non-suit in some actions is peremptory as in a quare impedit if the Plaintiff bee non-suit after apparance the Defendant shall make a title and have a Writ to the Bishop and this is peremptory to the Plaintiff and is a good bar in another quare impedit and the reason is because the Defendant had by the judgement of the Court a writ to the Bishop and the incumbent which commeth in by that writ shall never be removed which is a flat barre as to that presentation and for the same law and upon the same reason so it is in the case upon a discontinuance Coke com f. 139. a. vide ibidem plura Actio personalis moritur cum persona a personall action dieth with the person Went. off of executors f. 1. 97. As if a keeper of a Prison suffereth one in execution to escape and dieth no action lyeth against his Executors If Lessee for yeares doth wast and dieth an Action of wast lyeth not against his Executor or Administrator for wast done before that time Coke com f. 53. b. so if the tenant doth wast and he in the reversion dieth the heire shall not have an Action of wast for the wast done in the life of his Ancestor nor the master of an Hospitall or a parson for wâ—st done in the life of the predecessor ibidem The Lessor covenants to pay quit rent during the terme and dieth his Executors shall not pay it because it is a personall covenant in the Lessor onely Dier 114. Yet if there be three copartners and they Lease the land and one of them die and hath issue and the Lessee commit wast and one of them die and hath issue the Aunt and the issue shall joyne in an Action of wast and the issue shall recover one moyety of the Land wasted and the Aunt the other notwithstanding that actio injuriarum moritur cum persona But in favorabilibus magis attenditur quod prodest quam quod nocet in indifferent and favourable things that which profiteth is more respected then that which hurteth Relatio tunc fieri non debet si per eam actus destruatur Reg. I. c. Decius 363. Quando dispositio referri potest ad duas res ita quod secundum relationeÌ„ una vitiatur secunduÌ„ aliaÌ„ utilis sit tunc facienda est relatio ad illam ut valeatdispositio semper ita fiat relatio ut valeat dispositio C. l. 6. f. 76. b. a. A relation then ought not to be when by it an Act is destroyed As in the statutes of 32. and 34. H. 8. concerning Wills whereof is provided that every person having any Mannors Lands c. holden in capite shall have full power c. to dispose by his last will in writing or otherwise by any Act or Acts lawfully executed in his life two parts of the same Mannor c. for the advancement of his wife preferment of his children and payment of his debt or otherwise at his will and pleasure any Law statute c. those words or otherwise at his wil pleasure have reference relation only to the last wil not to the acts executed for otherwise none might have devised two parts but onely for the advancement of his wife and preferment of his children or payment of his debts which is not the intention of the Act but that he may devise two parts to whom he will so that the third descend and it was in vaine to referre those words or otherwise at his will and pleasure to Acts executed for he can do that without any authority given to him by that act And therefore when the disposition may be referred to two things so as according to the relation one of them may be destroyed and according to the other shall be commodious then the relation is to be made to that that the disposition may be of force and alwayes the relation is so to be that the disposition may availe in Sir G. Cursons case So Coke l. 3. f. 28. b. Butler and Bakers case relation is a fiction in law to make a nullity of a thing from the beginning to a certaine intent which in truth had being and the rather for necessities sake ut res magis valeat quam pareat As if a man make a gift in taile to Baron and feme and afterwards grants the reversion of those Lands and since the Baron dies and the feme to have her dower waiveth and disagreeth to the estate taile now in regard of her it is a nullity of the estate from the beginning and to such an intent the Law faineth that the estate was onely made to the baron but as to the grant of the reversion that is a collaterall Act and her refusall shall not have such relation for she may be endowed though that estate stand and so no necessity and therefore without necessity ut res magis valeat the Law will not faine any nullity but in a destruction of a loyall estate vested the law will never make any fiction vide ibidem plura So relation shall make things have been as if as if they never had been 1. H. 7. 16 The husband disagreeth to a Feoffement made by his wife it is void from the beginning so that he may plead ne infeosse pas so 14. H. 8. 10. A devise is that the Executors may sell land c. when they sell all meane charges made by the heire in the interim shall be avoided by relation to the time of the death of the Testator so 14. H. 8 18. I disseise A. to the use of B. the dissiesee releaseth to mee and then B. agreeth with the disseisee this agreement by relation shall be as if he had agreed before the release and so shall defeat it Jurors alien their Lands away between the teste of the Writ of attaint and judgement yet they shall be charged to the King for the estreptment by relation 22. E. 3. 16. Caufe of Assise brought for rescuing a distresse taken for rent and then an Office is found which entitleth the King who seiseth the Land and then an Ouster le maine is sued the Assise is gone for ever because the King shall be said to be in possession at the time of the rescous
in possession by the antient Law the entry of the disseisor for his negligence had beeâ— taken away which now is onely by descent many aâ—â— continuall are the mutations of the Law according to the changes of the time For the rule and ground holdeth quod perpetua lex est nullam begem humanam ac positivam esse perpetuam that it is a perpetuall Law that no humane or positive Law is perpetuall Bac. Max. f. 70. Tempus edax rerum Coke l. 3. f. 21. A. maketh a lease for years to B. and when the Terme is ended the remainder to C. the reversion is good for it is certaine enough that every terme shall end for time is the consumer and divourer of things Distingue tempora concordabis leges the times being distinguished the Law will be reconciled Coke l. 9. f. 16. b. The King by the Statute de bigammis 4. E. 1. when the heire was of full age had nothing but primam seisinam capiendo exitum the profits of the Land in effect for one yeare but could not endow the Feme because after the Heire was of age he was not guardian and for that reason he could not endow the Feme at the common Law no more then guardian in chivalry might who though after the Heir was of full age did hold the Land further for the value of the marriage no Writ of dower did lye against him because he was not guardian yet afterwards by the Statute de praerogativa regis 17. E. 2. the King had power to endow the Feme although the Heire were of full age si vidua illae voluerint so as the Statute leaveth it to the election of the Feme whether shee will be endowed in the Chancery or at the common Law so as by distinguishing the times the difference of those Laws are apparently agreed and reconciled Omnia tempus habent habenâ— sua tempora tempus Coke l. 10. f. 82. a. All things are subject to time and time it self hath also its times as by the Statute of 34 H. 8. three severall Times ought to concurr in a devise whereby the King may have the value of the third part the first is tempus habendi every person having the 2d is tempus tenendi holding of the King the third is tempus disponendi may â—ive and dispose as if a man be seised of one acroâ—â—f Land in fee in chiefe by Knights service and of two other acres in fee holden in socage and the Tenant infeoffe his youngest Son of the acre holden in chief and of one of the other acres to have to him and his heirs and afterwards purchaseth Lands holden in socage he may devise all his Lands newly purchased holden in sooage because he had no Lands holden of Knights service in Capite at the time of the devise for the acts have made a conjunction of the Lands which the Tenant holdeth in socage with the Land which he holdeth of the King by Knights service in Capite so as when the Tenant hath conveyed the Land holden in Capite to his youngest Son now when he made his Will of the Lands so newly purchased he had no Lands holden of the King in Capite at the time of the devise and the Statute restraineth only those Lands in socage which he had at the time of having of the Lands holden in Capite vide ibidem plura in Loveys case For Judicis officium est ut res ita tempora rerum Quaerere quaesitâ— tempore tutus eris A Judges part it is to ponder things with time And by the square of time sure Judgment so to finde Coke Com. f. 202. a. If a rent be granted payable at a certaine day and if it be behinde and demanded that the Grantee shall distraine for it in this case the Grantee needeth not to demand it at the day but if he demand it at any time after the day he shall distraine for it for the Grantee hath election in this case to demand it when he will to inable him to distraine But upon a Lease for years reserving a rent upon condition that if the rent be not paid at Michaelmas or within one and twenty dayes after that then he may re-enter the tenant is not bound to pay the rent or tender the mony before the last instant of the last day but if he do not then the Lessor may re-enter and have the Land and the rent also but if the Lessor be not at the time there to receive the rent he cannot re-enter though he demand the rent before Brook Intender 41. unlesse before the Lessee meets the Lessor upon the Land and tender the Rent on the same day Coke Com. f. 22. a. Ployd f. 392. 393. a. Where a thing is referred to a time which declareth certainly if it be mistaken all shall be void as Trin. 7. E. 3. 26. One bringeth a Writ and reciteth that it is contained in the Articles made in the time of Edward the second and declared further according to the statute and the writ was abated by award for that those Articles articuli super chartas C. 9. were made in the time of Edward the first So Tr. 18. E. 3. f. 25. A statute Merchant was made to be paid in the sixteenth yeare of E. 3. and the party sued execution and the Writ supposed the sum to be paid in the fourteenth yeare of E. 3. and by the suit the Feoffee was outed whereupon he sued a Writ of error in the Kings Bench and the writ was abated and it was said that the time declared certainty for it might be that there were two statutes payable at diverse severall daies and therefore the day of payment was materiall ibidem So if a defeasance be made of a statute which reciteth it to be made the tenth day of May where it beareth date the first day of May the defeasance is void for the misprision of the time for the law saith that it may be that there was two statutes the one bearing date the first day and the other the tenth day vide ibidem plura in the Earle of Leicesters case A loco from the place LOcus pro solutione reditus aut pecuniae secundum conditionem dimissionis aut obligationis est stricte observandus Coke l. 4. f. 73. a. in Burchers case The place for the payment of money or rent according to the condition of a Lease or obligation is strictly to be observed As if a common person maketh a Lease of Lands in R. reserving a rent to be generally paid at such a feast upon condition of re-entry if it be not then paid the demand must be upon the land for the land is the debtor and therfore that is the place of demand appointed by the law and if there be an house upon the land he must demand the rent at the house and not at the back doore but at the fore doore because the demand must be made at the most notorious
the writings are so is the chests and the box they are in because the Charters and Writings are the more worthy Noy Max. f. 7. 11. H. 4. 30. If one be instituted and inducted the tryall shall be by the Jury by reason of the induction because the realty as the more worthy is to be preferred 22. H. 8. 27. 43. E. 3 13. A Lease is of a Chamber and a Bed rendring rent in debt for the rent the Defendant shall not wage Law for the rent because the Chamber is magis dignum 21. E. 4. 3. An adulterer taketh away a mans wife and putteth her into new clothes the husband may take the wife with her clothes 11. H. 4. 31. A base mine where there is royal ore shall be the Kings for the worthinesse of the ore Ployd 318. A villaine shall make free Land to be villaine Land but villaine Land shall not make a Freeman to be a villain for the body of a man is more worthy then Land and therefore the Land shall follow the nature of the person 3. Eli. 238. So the Kings Land which he hath in his naturall capacity shall be demeaned according to the priviledge and prerogative of his body royall If a man be condemned in trespasse or re-disseisin and is in execution for the fine of the King or if he be outlawed of Felony his body shall not be in prison at the suite of the party for that the King hath an interest in his body who is magis dignus A majori digniori fieri debet denominatio Coke Com. f. 355. b. As Husband and wife are joynt Executors the Writ shall be executoribus non executricibus 22. H. 6. 30. A convenient proportion of Gold and Silver ore shall give the name to be a Mine royall Ployd f. 323. The grant of the Office of the Kings Tennis-Court the Play of the House is included in the grant because that onely giveth the name Coke l. 8. f. 45. in Woods case Dyer 314. Where speech is of a will it shall be intended of the last will for the will and the last will are taken for all one Quod in minori valet valebit in majori what is of force in the lesser shall be of force in the greater Coke com f. 260 a. As if a man in prison shall not be bound by a Recovery by default for want of answer in Court of Record in a reall action which is matter of Record a multo fortiori a descent in the Country which is matter of deed shall not for want of claime binde him that is in prison specially seeing he could not goe out of prison to make his continuall claime and the argument a minori ad majus doth ever hold affirmatively and the argument a majori ad minus doth ever hold negatively for it is also a rule quod in majori non valet non valebit in minori what is not of force in the greater shall not be of force in the lesser Magis minus non diversificant speciem Arist 2. Top. the greater and lesser doth not make the species and essence of things to differ the reason why great woods of the age of twenty one years are exempted from the payment of tithes is not because they are part of the free-hold or inheritance and that men use not to pay their tithes out of their free-hold but out of those things which spring out of their free-hold as out of corne grasse fruite and the like for the greatest Tree is no more part of the freehold then the lowest bramble and are both equall part of the ground wherin they grow do take a like sustenance and nourishment from the same neither do they differ as they are Trees one from the other secunduÌ„ magis minus but that the one Tree is a great Tree and the other a small shrub for the greater and the lesser doe not diversify the species But the cause of the provision in England by the Stat. of 45 E. 3. Ployd f. 470. b. why great Trees of the age of twenty one years doe not pay tithes is for that the one yeeldeth more profit to the common wealth and are Timber and serve for any use for building and therefore the cutting downe of them is made more penall then the other as in the like case by the Civill Law whosoever privily cutteth downe or barketh a Vine an Olive or a Figtree and doth any other unlawfull act whereby any fruitfull tree or any Timber tree doth perish and decay it is theft and is punished in the double value of the hurt which is done and if he be tenant of the ground who hath done it he loseth his hold because the Law respecteth the necessary use of them Ridleys view of the Law f. 207. Actus repugnans non potest in esse produci Reg. I. C. A repugnant act cannot be brought into being Ployd f. 355. a. Any man who is a legall owner of Land may give it unto any person in what manner and at what time he pleaseth so that his guift be not contrary to Law or repugnant As if an entaile be made upon condition that if the Donee alien that then it shall remaine unto another that is repugnant and therefore void for when he hath aliened it to a stranger then it is contrary to the alienation of a remainder over by it Coke l. 1. f. 84. a. Corbets case upon an estate the proviso was that if tenant in taile c. be resolved c to procure or attempt any act by which the estate taile may be barred and determined that then the uses and estates to him limited in respect of such person so attempting shall cease as if he were naturally dead the said proviso was adjudged repugnant and contrary to Law for the death of the tenant in taile is not the ceasing of the estate taile but the death of the tenant in taile that hath no issue of his body vide ibidem plura A Feoffment in fee of two acres unto two men Habendum one acre to one and the other to the other this Habendum is void for the contrariety for the Premisses give him an interest in both acres and the Habendum eâ—cludeth him from one 2. P.M. 153. In a trespasse de domo fracta muris ejusdem domus fractis the Defendant cannot pleade guilty to the breaking of the house and justify the breaking of the Walls for the house and the walls are all one and cannot of the same thing both justify and pleade not guilty for the one is contrary to the other and according to the rule cantraria allegâ—ns non est audiendus 21. H. 7. 21. He is not to be heard who alledgeth contrarieties an obligation is made solvendum nunquam this Solvendum is void for the contrariety and the thing presently due 21. E. 4. 36. A. is bound to B. Solvendum eidem A. the Solvendum is void for the contrariety and
that be dissolved the dower ceaseth where the husband and wife are divorced a vinculo matrimonij as causa precontractus causa metus causa impotentiae seu frigiditatis causa affinitatis causa consanguinitatis and William Chadweth was divorced for that he did carnally know the Daughter before the marriage of the mother All these are causes of divorce preceding the marriage and dissolve the dower Coke Com. f. 32. a. 235. a. Yet it is said that if the assignement of dower ad ostium ecclesiae be specified to wit that notwithstanding any divorce shall happen yet that shee shall hold it for life that this is good ibidem but divorce a mensa thoro doth not dissolve the matrimony nor bar the feme of her dower Coke l. 7. f. 43. b. As it was adjudged T. 2. Jac. 18. 5. C. 23. S so well and Wilby dower Coke com f. 33. b. Yet if the wife elope from her husband and leave him and goeth away with the adulterer shee shall lose her dower untill her husband willingly without coertion ecclesiasticall be reconciled unto her and permit her to cohabite with him according to the vulgar verses Sponte virum mulier fugiens adultera facta Dote sua careat nisi sponsi sponte retracta And this is true although shee remaineth not continually with the adulterer or if shee tarrieth with him against her will or he turne her away or co-habiteth with her husband by censure of the Church in all these cases shee loseth her Dower Coke ibidem 32. b. yet though shee be barred of her dower shee may have an appeale and the reason is because the Statute of W. 2. c. 34. barreth her of her dower but not of her appeale Coke com f. 33. b. And for the abovesaid reasons dower is one of the three things are principally favoured in our Law and the Law by that name doth give her many freedomes for the very name Dos doth give her a freedome as according to the custome of the Kingdome mulieres viduae debem esse quietae de tallagijs Regist 142. 143. and tenant in dower shall not be distrained for the debt due to the King by the husband in his life time for the Lands which shee holdeth in dower of which Ockam yeeldeth this reason Doti ejus parcatur quia praemium pudoris est let her dower be spared because it is a reward of her chastity Coke com f. 31. a. By the Statutes of 1. E. 5. c. 2. 5. E. 6. c. 31. A wife shall not lose any title of dower which to her was accrued by the attainder of her husband by misprision of treason or any manner of murder or felony whatsoever but if the husband be attainted of high treason or petit treason shee shall be barred of her dower at this day so long as the attainder standeth in force which is more favourable to the woman then the common Law was Coke com f. 392. b. vide ibidem plura And a woman shall be endowed of a seisin in Law as where Lands or Tenements descend to the husband before entry he hath but a seisin in Law and yet the wife shall be endowed albeit it be not reduced to an actuall possession for it lyeth not in the power of the wife to bring it to an actuall possession as the husband may doe of his wifes Land when he is to be tenant by courtesy Coke com f. 31. a. If a man taketh a wife of the age of seven yeares and alieneth his Land and after she attaineth to the age of nine yeares the husband dyeth the wife shall be endowed for albeit shee was not absolutely dowable at the time of her marriage yet was she conditionably dowable to wit if she attained to the age of nine yeares before the death of her husband ibidem f. 33. a. An husband seised in fee of Lands giveth it in exchange and taketh others in exchange so as he was seised of both the wife shall not be endowed of both but she may take her election to be endowed of which she will Coke ibidem 31. If the wife be of the age of nine yeares and her husband dyeth she shall be endowed though her husband be but four years old ibidem or of what age soever the husband be quia non obstabit mulieri petenti dotem minor aetus viri because the inferior and lesser age of the man shall hinder the woman from demanding her dower and that albeit consensus non concubitus facit matrimonium and that a woman cannot consent before twelve nor a man before fourteen yet this inchoate and imperfect marriage from the which either of the parties at the age of consent may disagree after the death of the husband shall give dower to the wife and is accounted in Law legitimum matrimonium quo ad dotem a lawfull marriage in respect of her dower Coke com f. 33. a. If the husband alien his land and then the wife is attainted of felony now is she disabled but if she be pardoned before the death of her husband shee shall be indowed ibidem Dos de dote peti non debet Coke com f. 32. Dower ought not to be demanded of Dower as if there be Grandfather Father and Son and the Grandfather is of three acres of Land in fee and taketh wife and dyeth this Land descendeth to the Father who dyeth the wife of the Grandfather is endowed of one acre and dyeth the wife of the Father shall onely be endowed of two acres for dower must not be demanded of dower but otherwise it had been if the father had come to the Land by Feoffment from the Grandfather or by guift in taile the wife of the Father after the decease of the Grandfathers wife should have been endowed of that part assigned to the Grandmother for that the seisin that descended after the decease of the Grandfather is avoided by the indowment of the Grandmother whose title was consummated by the death of the Grandfather Non debent mulieribus assignari castra in dotem quae fuerunt virorum suorum quae de guerra existant Coke com f. 31. a. Castles ought not to be assigned to women for their dower which appertained to their husbands and which are for war and therefore of a Castle which is maintained for the necessary defence of the Realme a woman shall not be indowed because it ought not to be divided and the publick shall be preferred before the private but of a Castle which is onely for the use and private habitation of the owner a woman shall be endowed and that in the 7 th of Magna charta nisi domas illa sit castrum is taken for a Castle of publick defence De nullo quod est sua natura in divisibile divisionem non patitur nullam partem habebit uxor pro dote sua sed satisfaciat ei ad valentiam Bracton Coke com f. 32. Albeit of many Inheritances which be
remainder is appointed in fee to the right heires of I. S. who dieth having a daughter which entreth after the death of tenant for life there the son after borne shall not recover the lands before vested in the daughter as purchased for thereit is a fee simple to which the son after born hath no right for the lands were in none of his Ancestors before But where the estate is an estate taile the son ought to have it per formam doni As if a feme which suffereth a recovery by covin contrary to the Statute of 11. H. 7. is defeated by entry of the daughter tenant in taile the son borne may enter and oust the daughter for that the title in taile is in him because the statute saith he shall enjoy it according to the title which is in taile and therein the common proverb is verified One shall beat the bush and the other have the bird As if a man hath land by descent of the part of the mother and maketh a feoffment on condition and dieth without issue and the heire of the part of the father entreth the heire of the part of the mother may oust him Ployd 56. b. and 57. a. In Wimbish case quod vide Infinitum injure reprebatur Coke l. 6. f. 45. What is infinite is reproved and rejected in law As if a man have a debt by simple contract and taketh an obligation for the same debt or any part of it the contract is determined 3. H. 4. 17. 11. H. 4. 9. and 9. E. 4. 50. 51. So if a man have a debt upon an obligation and by course of law hath a judgement upon it the contract by specialty is changed into a thing of record for if he that recovereth should have a new Action or a new judgement he may have infinite Actions and infinite judgements to the perpetuall charge and vexation of the defendant and he shall not have a new Action or a new judgement for what is infinite is rejected in law So upon every judgement the defendant shall be amerced and if he bee a Duke Marquess Earle Viscount or Baron he shall be amerced 100 l. and so the defendant should be infinitely amerced upon an obligation which shall be mischievous Ibid. And lib. 7. f. 45. b. It was resolved in the Court of Wards by the greater part that a Bill of reviver upon a bill of reviver shall not be admitted by reason of the infiniteness which is rejected in law And lib. 8. f. 16. b. When the first office is found against the King and the melius inquirendum also the King is bound nor to have any melius inquirendum for the same matter because there should be no end of it and that such writs might issue infinitely and infinity is condemned in law Nihil tam conveniens naturali aequitati quam voluntatem domini volentis suam rem in aliam transferre ratam haberi Bracton f. 18. God hath given to man all the land terram dedit filiis bominum So men by Gods endowment are made Lords of the land and what property a man hath in lands by law by the law of God also he hath dominion of it and therefore every man who is the lawfull owner of land may grant to what person in what manner and for what time it pleaseth him for if the land be subject to man then is it subject to his will for the will cometh from the mind which is the principall part of man because it directeth the body and all things he hath and if his land be subject to his will this his will is a sufficient consideration by which his land may pass as his will is and there is no greater consideration then the will Ployd f. 308. b. And nothing is more agreeable to naturall equity then to ratify the will of the Lord willing to transferr his substance and estate over to another And therefore at the common law the intention and will of the parties was the direction of uses for they were onely determinable and to be adjudged by the Chancellor which is the Court of conscience and equity and there is nothing more agreeable to equity then that the will of the Lord or owner and the meaning of the parties should direct the uses 31. H. 16. Tit. subpaena Fitz. 23. A man being ceste que use and having one sole daughter declared his intent and meaning to the Feoffees that after his decease his daughter should have his land and for it question was made in the Chancery whether the limitation of that use made to the daughter might be revoked and in reasoning of that case Fortescue held opinion that if ceste que use had issue a daughter and being sick declared his intention to his feoffee that his daughter shall have his land after his decease and after hee recovered his health he had issue a sonne now saith hee it is good conscience the sonne should have the Subpaena because hee is heire for conscientia dicitur a conset scio quasi simul scire cum Deo that is to know the will of God so neere as reason will and the intention of the parties is to direct the uses according to a conscionable and benigne construction Coke l. 1. f. 100. a. b. vide ibidem plura As a gift in taile may bee made upon condition that tenant in taile may alien for the profits of his issue and good and hee may alien notwithstanding the Statute of W. 2. because in that case voluntas donatoris observatur The will of the Donor is observed Coke com 224. b. If Lands be given to B. and his heires Habendum to him and the heires of his body or if given to him and the heires of his body Habendum to him and his heires he hath estate taile and a fee expectant but if Lands bee given to B. and his heires if B. have heires of his body and if he die without heires of his body that it shall revert to the Donor it is an estate taile and the reversion in the Donor for voluntas donatoris in charta doni sui manifeste expressa est observanda The will of the Donor manifestly expressed in the Charter of the gift is to be observed Coke com f. 21. a. If a common person doth without consideration give to I. S. his goods indefinitely all his goods doe pass 21. E. 4. 25. Alba of Waltams case by Brown and Genny If the King doe grant to one lands ex mero motu and though his Highnesse doth rehearse some consideration in the patent of his grant which is not true as if the consideration bee that whereas the Grantee hath done his Majesty good service on the Sea or beyond the Sea or in his Wars though the consideration bee meerely supposed and therefore no good consideration in Law yet the words ex mero motu doe make the Grant good 26 H. 8. 1. by Fitz. And if a common person doe by deed
Ed. 1. before the Statute de prerogativa regis which was made in the seventeenth year of E. 2. a long time after Britton writ which was but a declaration of the common Law Coke l. 4. f. 126. a. Neither doth this impugne the Maxime of the common Law for in this case he that is non compos mentis in no Plea that he pleadeth shall stultify or disable himselfe but all this shall be found by office by the inquisition and verdict of twelve men at the suite of the King who are not concluded to say the truth and such and office when it is found shall have relation a tempore nativitatis to avoid all mesne Acts made by one who is non compos mentis as Feoffments Gifts Leases Releases c. And after such office found if he be sued in an Action upon an obligation or writing which he hath made the King by his writ so long as the office be in force reciting the office shall command a Supersedeas to the Justices where the suite is commenced but if one of non compos mentis dye before office found after his death no office may be found and in this sense is the rule of Bracton true furiosus stipulari non potest nec aliquid negotium agere quia non intelligit quod agit A mad man cannot promise or contract for any thing or doe any businesse because he understandeth not what he doth but all such Acts may be avoided either by the King or his Heires Coke ibidem f. 126. a. b. With which the civilian rule accords furiosus nullum negotium contrahere potest But in case of non compos mentis the King hath not any interest in the Lunatick as he hath in the Idiot for that the Lunatick may recover the memory which he hath lost and therefore in the case of an Idiot the Law saith Rex habebit custodiom the King shall have the custody but in the case of non compos mentis Rex providebit the King shall provide one to have a care and charge that he that is non compos mentis and his family shall be maintained and that nothing shall be spoiled without taking any thing to his owne use but all to the use of the non compos mentis and his family and that he shall not cut down trees but for necessary House-boot Plow-boot and Cart-boote and to repaire ancient Pales as appeareth in the case of Dyer 25. b. In Trespasse against Homes quare clausuum fregit and did cut down Trees in Padington c. of one John Francis c. the Defendant pleaded that the said John Francis was a Lunatick by which the King seised his Lands by commission c. and by his Letters Patents granted custodiam gubernationem praedict Fr. sine computo reddendo the custody and government of the said Francis without rendring an account c. and he prayed aid of the King and upon demurrer it was denied and the diversity taken between the seiser of the Lands of a Lunatick and an Idiot for in the first case the King nor the Grantee shall not have any profit but they are bound to finde necessaries for him c. by the prerogative of the King but in the other case the King and his Grantee shall have the Lands to his own profit and Fitzberbert held that the Lunatick should have an account when he came to his good memory sed fuit negatum Ibid. f. 26. Pl. 164. But it seemeth by Coke lib. 4. f. 127. that he shal be accountable as a Bayly to him that is not compos mentis or to his Executors or Administrators And the King shal have the protection of an infant as well as of his Land F. n. b. 232. b. But the King shal not have the lands that the Idiot holdeth by copy for that is but an estate at wil by the common law and if the King should have the custody of it it should be a grand prejudice to the Lord of the Mannor and yet notwithstanding an alienation made by the Idiot of the copy-hold after Office found shall be avoided Dyer 302. Coke ibidem f. 126. b. But there are some acts done by a man of non compos mentis that shall not onely bind himselfe but his Heires and Executors also and therefore if he levy a fine or suffer a common recovery or acknowledge a Statute or Recognisance neither his Heire nor Executor shall avoid it for those are matters of record and cannot be avoided by a nude averrement of non sanae memoriae for the inconvenience that thereupon may ensue also such an averrement is against the office and dignity of a Judge for he ought not to take any cognisance of a fine or recognisance of him that is non compos mentis and therefore all acts that he maketh in Court of record shall bind himselfe and all others for ever and shall not have a releife in equity because it is against a ground and principle in Law that no man shall disable himselfe and if the Judge were not compos mentis yet all the Fines Judgements and all other Records which are before him shall be good because they are matters of Records Cbichell Copy-holds Vim vi repellere licet Coke com f. 162. It is lawfull to repell force by force and that by the Law of nature according to the civil rule adversus periculum naturalis ratio permittit se defendere naturall râ—â—son permitteth to defend himself against danger which is manifest in Beasts which though they have not the substance and reason of the Law yet have they a certaine shadow of it and which is not onely observed in Beasts but also in infants and children But yet as Coke in the same place saith must it be done with this caution moderamine inculpatae tutelae non ad sumendam vindictam sed ad propulsandam in juriam with the moderation of an unblameable defence not thereby to take revenge but to repulse the injury In trespasse of an assault and battery for Beasts taken the Defendant said that to all but the assault he was not guilty and for the assault he said that before the trespasse the Defendant was possessessed of an horse as of his proper Goods and of it was possessed till the Plaintiff took it out of his possession and the Defendant the same day and year requested it of the Plaintiff but the Plaintiff said that he would not deliver it and the Defendant said if he would not deliver the horse to him he would retake it in spite of him and presently took a staff which was lying on the ground and went towards the Plaintiff with it which is the same assault of which the Plaintiff hath conceived his Action Judgment if Action and the opinion of the Judges was that the assault was justifiable Kelloway 22. H. 7. f. 92. If two fight together on a suddaine and before a mortall wound be on either party the one
Law Wafrages and protection to the passing Merchants of the Sea was one of the principall causes of the payments of those duties Davis ibidem f. 12. And Dyer f. 43. Putteth a difference between a custome and a subsidy and saith that the custome for Merchandizes to be transported out of the Realme is an inheritance of the King and by the common Law and not given by any Statute and that appeareth by the Statute of 14. E. 3. which was the first Statute which maketh mention of any custome and that Statute doth not give or limit any Custome to the King but abridgeth and abateth the custome which was paid for Wool or Leather but a subsidy saith he is a Tax assessed by Parliament and granted to the King by the Commoners during the life of every King only which is made cleer by the case reported by Dyer 1 Mar. f. 92. where King Edward the sixth had granted a Licence to a Merchant stranger to transport all Merchandizes paying pro custumis subsidiis tot tantas denariorum summas quot quantas any english Merchant and Denizen should pay and no more And it was resolved by all the Judges after the death of Edward the sixth the grant was good for the Customes but void tor the Subsidies because the King had an Inheritance in the Custome as a Prorogative annexed to the Crown but in the Subsidies he had an estate only for life by act of Parliament But there is a third kind of duty payable for Merchandizes which are called Imposts or Impositions and these were sometimes rated and assessed by Parliament and then were they of the nature of Subsidies and sometimes were imposed by the Prerogative Royall to support the necessary charges of the Crown and then as the ancient Senator of Rome said Nihil magis justum est quam quod necessarium est There is nothing more just then that which is necessary Davis f. 12. vide ibidem plura The Impost upon Wines was first assessed by Parliament and limited to be paid for certain years which being expired is now continued by Parliament ibidem Opoâ—tet patrem familias vendacem esses non emacem Cato major Davis f. 10. The Master and Father of a Family ought to be a buyer and not a seller By the Grecians Kings were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pastors of the people and Emperors by the Romans Patres Patriae Fathers of their Country for their vigilant and Paternal care they were to take for the preservation and provision for the people for he is the publique Pater familias and is to bend his thoughts to the utility and commodity of the publique and as he is reputed a provident Father of a Family who hath more commodites to sell then occasions to buy so ought he to be a seller rather then a buyer and to provide that more native commodities be exported for sale and the less forrein Merchandizes imported to the buyer And therefore the little custome of forrein Commodties was then accepted of the King when but a little quantity of such forrein Wares were imported into England For in the time of Edward the first and after that in the times of Edward the third the native Commodities of England exported were of greater quantity and value by two parts of three at the least then the forrein Merchandizes imported by which King Edward the third raised so great a revenue out of the Native Commodities of his Dominions that it was noted for good Husbandry in that King for a Father of a Family ought rather to be a buyer then a seller but now it is altogether contrary for at this time the Out-gate is lesser then the In-gate and the forrein Commodities imported are of greater quantity and value by two parts then our native Commodities exported which is a great shame to our Nation to be so enamoured with Mercery and Grocery Wares imported by strangers and to expend upon those more then the value of all the Staple Commodities of our Country which will be in the end the decay and ruine of the Common-weale Davis ibid. Thesaurus regis est pacis vinculum bellorum nervi Coke l. 3. f. 12. b. The treasure of the King is the bond of peace and the sinewes of war And therefore the Common Law preferreth and advanceth the right of the King insomuch as Sir Henry Finch observeth you shall find it to be Law almost in every case of the King that is not Law in case of the Subjects and that with an intention to inhaunce the Kings Treasure and to replenish his Coffers whereby he may in time of peace advance the glory and honour of the Nation and in time of War be enabled to protect the Common-wealth against forrein incursions and invasions for the Kings Treasure is the bond of peace and sinewes of war And therefore in the case of the King which is not so in the case of a common person the body the lands and the goods of the Accomptant or Debtor of the King at the Common Law were liable to the execution of the King Dyer 234. before the Statute of 33 H. 8. c. 38. Coke ibidem and upon the same reason is this principall grounded Quando jus domini regis Subditi in simul concurrunt jus regis preferri debet Coke l. 9. 3. 129. b. when the right of the King and the Subject concur together the right of the King ought to be preferred As in Dame Hales case Ployd 262. Baron and Feme were Joynt-tenants of a term for years the Baron is selo de se he shall forfeit all and yet till the Office it surviveth but after the Office it hath relation before or at the least at the time of the death vide ibidem plura in Quicks case So Ploâ—d f. 263. b. If a Feme take husband and hath Issue and the land descend to the Feme and the Baron enter so that he is intituled to be Tenant by the Curtesie and then the Feme is found an Ideot and her Estate in the land is also found the King shall have the land and if the Feme dye the Baron shall never have the land by Curtesie for by the first possession of the Feme the Baron was entituled to be Tenant by Curtesie and when the Office is found the Title of the King shall have relation also to the first possession and so both the Titles commence at the same time but the King shall have the preheminence and because the Title of the King is in this case to the Frank-tenement of the land in that that he shall have the custody of it during the life of the Feme it shall utterly take away the Title of the Baron which before the Office found was vested in the Baron and therefore after the death of the Feme he shall not be Tenant by courtesie but the Issue shall have the lands out of the hands of the King if it be not
Common Law of England every navigable River so high as the Sea floweth and refloweth in it is flumen regale and the Piscary of it is also royall Piscary and belongeth to the King as his Prerogative but in any other river not navigable In the Piscary of such River the Ter-tenants of either side of the water have an interest of common right and the reason why the King hath interest in such navigable Rivers so high as the Sea floweth and refloweth in it is because such River participateth of the nature of the Sea and is said to be a brach of the Sea so far as it floweth or refloweth 12 Ass pl. 93. And though the King permitteth his people for their ease and Commodities to have common passage yet he hath the sole interest in the soil of such Rivers as also in the Piscary although the profit of it is not commonly taken by the King and appropriated by the King unless it be of extraordinary and certain annuall value So the King granted to Strangewaies totam illam liberam piscarim all that free Priscary called the Fleet in Abboesbury which is a bay and creek of the Sea And though the Abbot had the Piscary before the dissolution it is to be understood that the Abbot at the beginning had it by grant of the King it being a severall piscary upon the brach of the Seas and therefore by consequent royall piscary vide Ployd 315. b. And therefore in the case of the royall piscary of Bann Davis 57. It was resolved that the River of Bann so far as the Sea did flow and reflow in it is a royall River and the fishing of Salmon there a royall piscary which belongeth to the King as a severall piscary and not to those which have the soile ex utraque parte aquae on either side of the water vide ibidem plura Tributum est victoriae praemium Cicero in vere poenabelli Tribute is the reward of victory and penalty of Warr. A Conqueror may command tribute and all that comes in under the Conqueror by the Law of Nations and therefore the Roman Generall said unto the French men Tac. l. 4. histro Deut. 20.11 jure victoriae tributum vobis addidimus by the right of victory we have imposed tribute upon you and tribute for the same reason is due by the Law of God which cleerly appeareth by the answere of our Saviour to the Iewes who because they would have Christ to have challenged their earthly Kingdome by that meanes to draw him into hatred with Caesar demanded of him whether it were lawfull to give tribute to Caesar but he that allwayes professed that his Kingdome was not of this World Matt. 22. gave them a bone to gnaw saying give unto Caesar all the things which are Caesars and to God the things that are Gods for indeed tribute are allowed by the Law of God So William the Conqueror after his universall conquest was the first that commanded and imposed tribute in England and not unjustly which as yet is continued as a remembrance of a conquest yet doe the English seeme rather to offer a tribute to their Monarch then the Monarch to command it for the courtesy of England is great and the clemency of their Princes greater and as Fulbeck protesteth sithence the conquest of England tribute and subsidy have been as justly by the Law of God and the Law of Nations paid England as in Jury Fulb. Pand. c. 10. f. 99. In republica maxime conservanda sunt jura belli Coke com f. 10. b. In a Common-wealth the Laws of Warr are principally to be preserved for to invert the position of Justinian and yet to retain the sense imperatoriam Majestatem non solum legibus oportet esse armatam Just Institutes sed etiam armis decoratam ut utrumque tempus bollorum pacis recte possit gubernari the imperiall Majestie ought not only to be armed with Laws but also adorned with armes that the time of War and peace may be rightly governed for experience the mistresse of all Arts and Sciences teacheth us that there is nothing more necessary for the observation of peace and Administration of Justice then the conservation of the Lawes of armes and that in consideration of the ambition of the world and factions of people it is impossible for any Realme to continue in peace and tranquility where the protection of the Sword is not eminent and iminent and therefore Cicero summus illo administrandae reipub Magister Buchan de Cicerone propoundeth the cheifest Master of the administration of a common wealth propoundeth this sentence to be practised as a State Aphorisme Ideo suscipienda sunt bella ut in pace sine injuria vivamus therefore are Wars to be undertaken that we may live in peace without injury Tullys Offi. for without the assistance of the Militia and Sword a State cannot be constantly cleered and freed from publick or private injuries and it was Catos sage advice by which the continuall rebellions of the Spaniard might surely be suppressed id uno modo caveri potest si effectum erit ne possint rebellare that by one onely meanes may be prevented if such course be taken that they cannot rebell and the very like course did Lentulus prescribe against the Perfidious Carthaginians quoniam illoram Persidiam non possumus tollere ideo debilitemus potentiam because we cannot eradicate their persidiousnesse therefore let us debilitate their power both which by continuance and force of armes was effected Mavult princeps domesticos milites quam stipendiarios bellicis apponere casibus Coke com f. 69. a. A Prince will rather imploy Domestick and Native Souldiers then Stipendiaries and Forreners It was the wisdome of the antient Kings of England to be served in the Wars by their own Subjects and therefore did give Lands to their Subjects to hold of them by Knights services that when the King did make a royall voyage to Scotland Wales c. according to their severall tenures they ought to be with the King for a certaine time limited conveniently arrayed for the War and though they onely who held immediately of the King were to doe this service yet every man by his tenure is bound to defend his Lord and he and his Lord the King to which the military rule of Galba is consonant optimum est militem deligere non autem emere it is the best course to choose a Souldier but not to buy him and then are Princes said to choose their Souldiers when they conscribe their own Subjects and to buy them when they purchase strangers with their pay And as another satius est erudire suos quam conducere alienos it is better to instruct your own people in armes then to procure expert strangers for which Machavell that subtil Secretary of State extolleth the King of England that when he invaded France for many years agoe would not accept any
is that which is called Tenure of land in which reservation he had four serviceable Institutions suitable to the state of a Conqueror 1. Marriage of the Wards Male and Female 2. Horse for service 3. Homage and Fealty And fourthly Primer Seisin Bacons uses f. 30. vide ibidem plura But Sir John Davis is of opinion Davis 21. f. 41. that though William the Conqueror made a more absolute and entire Conquest of England then Henry the second did of Ireland yet he did not seise all and had not the actuall possession of all the lands within the Realm of England vested in him by the Conquest yet he acknowledged that the book of Domesday which is an exact discription of all the Realm was made in the time of the Conqueror and that by it appeareth that the Conqueror had certain lands in Demesne which lands were in the hands of Edward the Confessor and are intituled Terrae Edwardi regis and other lands which himself had seised upon the Conquest and are entituled terrae regis and called them the ancient Demesnes of the King and of the Crown of England but he maketh no mention of the lands which he conferred on the Normans which without doubt were very great and whom by Mannors as well as by Honours he made predominant in England as to Hugh Lupus the son of his Mother Lotte and one Hoclewin a Noble man of Normandy whom she had married he gave the Earldome of Chester to hold of him as freely by his sword as he held the Crown of England by vertue of which Grant the said Hugh ordained under him four Barons B. Cr. f. 34. such an honour as no Subject in England ever enjoyed the like which also is manifest by the Grant he made to Warren a Norman of principall qualitie of the Castle of Shirburn in Norfolk B. cr f. 33. which afterwards he restored to the Heir because he had never born Armes against him by which this consequence may probably be inferred that notwithstancting his universall Conquest he had such a moderate respect to those who were neither Actors nor Opposites to his atchievement of the Crown that though upon suspitious informations he had by Grants deprived them of their estates yet in consideration of their submissive homage and fealty he gratiously restored them But to the point in hand upon this Conquest the ancient Lawes did seem to be silent Co. l. 3 71. ad lectorem for he abrogated many of them and in their stead brought in other Lawes which Sir Edward Coke confesseth efficacissima ad regni pacem tuendam were effectuall and forcible to maintain the peace of the Kingdome commanding them to be written in French and also that all causes should be pleaded and all matters of form dispatched in French thereby intending to make the Normans Language as predominant as their persons and therein intimating the Romans who upon their Conquest of any Country as well as England introduced and used their Language in all matters of state and Courts of Judicature both which are altered and changed by our Parliaments as an ancient badge of conquests and servitude So Edward the first made a Conquest of the Dominion of Wales and changed their Lawes and Customs as he hath expressed in his Charter as the Statute of Rutland whereas to their Lawes and Customes he saith Quasdam illarum de consilio procerum regni nostri de levimas quasdam correximus ac etiam quasdum alias adjiciendas faciendas decrevimus c. Some of them by the advice of the Nobles of our Kingdome we have abolished some we have corrected also some we have decreed to add and make Optimi ducis est Scire vincerâ— cerdere prudenter tempori Coke com f. 71. a. It is the part of an excellent Captain to know and to overcome and wisely to yeild unto the time Men must not fight onely with War-like Weapons and Engines but with the force of his wit and ingeny for dolus cunning and policy is much used in military affaires and standeth in equall ballance with strength and might according to the poeticall sentence Nil refert armis contingat palma dolove Nam dolus an virtus surit quis in hoste requiret By might and slight to conquer yea or no It is no matter for either in a foe Who doth require Nay often times prudent subtlety prevaileth more in such War-like enterprises then might and strength of hand and therefore are Stratagems more commonly more commodious then plain and equall encounters which a compleat Generall will alwaies practise upon a convenient occasion as Vegetius prescribeth Boni duces non aperto morte praelium in quo est commune periculum sed ex occulto semper attentant ut integris suis viribus quantum possint hostes interrimant certe vel terreant Good Captains will not fight in open field in which the danger is common and equal but will invade them unawares that with all their forces in what they can they may either destroy the enemy or otherwise put them into a fear and fright And therefore the Lacedominans when they over-came the enemy by Stratagem did sacrifice to Mars an Oxe but when by open strength a Cock of which Plutarch giveth the reason that so they might accustome their Leaders that they should not onely be valiant but also by subtle wiliness which is requisite in an Emperor they should excell in Stratagems And which by the Law of God is more to be desired for God commanded Joshua Josh 8. to lye in ambush for the City of Aye behind it and so did David when he was to fight with the Philistims Thou shalt not go up but fetch a compass behind them and come upon them over against the Mulberry Trees So it is a cunning policy in the besieged that they pretend to abound in those things which they most want So the Romans when the Capitall was besieged by the French and were pressed with the extream necessity of famine did cast down loafes of bred among their enemies Val. Max. l. 7. c. 4. that they might seem to abound in provision by which device the enemy was induced by compact to leave the siege And so in such a siege it is a commodious thing to a Captain to move in treaty of agreement and to make truce with the enemy for certain daies which usually maketh the enemy more negligent so as he may the more easily get out of their hands By this way Sylla delivered himself twice from the enemy and by the same deceit Asdruball in Spain got out from the force of Claudius Nero who had besieged him Match l. 6. f. 89. vide ibidem plura Lib. II. MISCELLANEA or an Hotch-pot Or divers scattered grounds concerning the reasonable construction of the LAW SECT I RAtio est anima legis Coke com f. 394. b. Reason is the life of the Law for then we are said to know the Law
shall give notice of the said felony to some of the Inhabitants of any Village or Hamler next the place where the robbery was done and that if in their pursuit they take any of the Offenders that shall excuse them though they do not take all See there in that Statute the reason of the alteration Co. l. 6. f. 50. a. b. At the common Law a man that had once the benefit of the Clergy shall have it another time and so in infinitum which was remedied by the Act of 4 H. 7. So as the burning in the hand was not to other purpose but to notifie to the Judge whether he had had his Clergy before or no ibid. So if one be attainted at the Common Law for forging false Deeds the King cannot pardon it yet the King may pardon the corporall punishment in case of forgery in the Star-chamber because all Suites in the Star-chamber are but informations for the King though the Suit be exhibited by the party ibidem So before the Statute of 18 Eliz. c. 7. the King might in case of Inditement of Man slaughter pardon the Imprisonment 15 H. 7.9 but not in an appeal but after the Statute of 18 Eliz. by which it is provided that after Clergy allowed and burning in the hand the Prisoner shall presently be enlarged and delivered out of prison It was resolved that that Act did extend as well to the case of appeal as to the case of Inditements otherwise the party shall lawfully be discharged of his punishment and yet remain in perpetual prison ib. vide examen legum Angliae f. 29. Cessante ratione legis câ—ssat lex Coke com f. 70. b. The reason of the Law ceasing the Law it self ceaseth As he that holdeth his land by Escuage when the King maketh a Voyage royall into Scotland to subdue the Scots then he that holdeth by the service of one Knights fee ought to be with the King conveniently arrayed for the War for forty daies c. yet needeth he not go with the King himself if he will find another man and this seemeth to be good reason for it may be he is languishing so that he cannot go nor ride Also an Abbot or another man of religion or a Feme-sole which hold by such services ought not go in proper person Littleton ibidem Quia multa In jure communi propter rationabilem causam omittenda sunt for many things for a reasonable cause are to be omitted If the King give lands to an Abbot and his Successors to hold by Knights service this had been good and shall do homage and fine a man but there was no wardship or releif or other incident belonging thereunto but if the Abbot and his Heirs had conveyed the land to a natural man and his heirs now the wardship releif or other incident belonged of common right to the King So if the King give lands to a Mayor and Comminalty and their successors to be holden in Knights-service the Patentee shall do no homage neither shall there be any wardship or releif onely they shall find a man but if they convey the land to any naturall man and his heirs now marriage homage ward releif or other incidents belong hereunto for the reason of the Law being changed the Law its self is changed and the immunity which was in respect of the body politique by conveyance over ceaseth Coke ibid. Qui rationem in omnibus quaerunt rationem subvertant Theophrastus Coke l. 2 f. 7.30 who do seek reason in all things overthrow reason As if a man make a Lease of Indenture for life of lands in severall Counties and maketh livery of seisin in one County and divers daies after he maketh livery in the other County yet an intire rent shall issue out of the land in both Counties and yet the livery by which the Estate passed was made at severall times and therefore it may be argued that presently by the first livery the rent issued out of it But the Law shall not adjudge by parcels in subversion of the intent and agreement of the parties but after all Acts are made in performance of the originall contract and agreement of the parties the Law shall adjudge upon all as done at one and the same time So if a man make a Charter of Feoffment with warranty and deliver the Deed to the Feoffee and after at another time make livery secundum formam chartae yet the Warranty is good and yet it may be objected that when the Deed was delivered no estate passed to which the warranty may be annexed nor no estate was in the Feoffee by which the Deed might enure and so by nice construction upon the distinction of time the warranty shall be subverted but the Deed which comprehended the warranty took effect presently by the delivery of the Deed before livery and seisin and therefore the sentence is true that who do seek reason in all things subvert reason ibidem SECT II. A Verbis legis non est recedendum Coke l. 5. f. 118. b. we ought not to go from the words of the Law Edriches casc A. deviseth rent with distress to B. for the life of C. the heire leaseth the land for life to D. the remainder to E. in see the rent is behind in the life of D. D. dieth C. dieth B. distraineth for the arrearages of E. in remainder and resolved that he shall be charged by the second branch of 32 H. 8. c. 37. which giveth a distress for the arrearages upon such lands out of which the said rents were issuing in such manner and form as if Cestuy que vie had been living And the Judges said that they ought not to make any interpretation against the express letter of the statute for nothing can so express the intent of the makers of the act as their direct words themselves for Index animi seâ—mo and it shall be perilous to give scope to make construction in any case against the express words when the intent of the makers appeareth not to the contrary and when no inconvenience upon it shall arise for we ought not to go from the words of the Law vide ibidem plura Coke l. 10 f. 105. a. b. If in an Assise so many of the Recognitors make default that there be not twelve the Justices of Assise cannot award Tales de circumstantibus for though the Justices of Assise are named in the said Act of 35 H. 8. as well as the Justices of Nisi prius yet insomuch as the said Act doth not give power to Justices of Assise or Nisi prius but where the tryall shall be by twelve men in any Writ of Habeas Corpora or Distringas with Nisi prius and it cannot be in an Assise for Assisae capiamur in proprio Comitatu and can never be taken by Nisi prius in proprio commitatu and no exposition can be made against the express words for that shall be viperina expositio quae
of a Grant be good in parcels and for parcels not that which is for the advantage of the Grantee shall be taken to be good As if a man granteth unto me an annuity provided that it shall not charge his person the Proviso is void and the Grant good 20 E. 4 8. by Townsend 14 H. 4. 30. by Hank And if an annuity be granted pro consilio impendendo though the Grantee be well skilled in divers professions of art yet counsell shall be given in that faculty onely which was intended at the time of the Grant 4. 1. E. 3. 6. If the King grant to a man that he and his Heirs shall be quit of Tax for the lands which they have this is a good Grant though there be no Tax at the time of the Grant 38 H. 6. 10. And so is the Law of Tenths and fifteens ibidem Ployd f. 29. a. If a man maketh a Lease for life and after the decease of Tenant for life that the lands redibus to A. B. in fee it is held a good remainder because it is held for a principle that the Livery of every one shall be taken more strong against him 18 E. 3. f. 28. If a man give land to one haeredibus it shall be a Fee-simple without the word suis and though he doth not give him a Fee-simple expresly yet every mans livery shal be taken strongest against him Ployd f. 18 b.a. If I make a lease for years upon condition that one moneth after he shall have fee he shall have it after the moneth accordingly for the thing shall pass according to the convention more strong against the Donor Ployd ibidem So if I make a lease to two upon condition that if one doth dye within seven years that then after the death of the other it shall remain to a stranger in fee that remainder is good for the reason of the condition to give the estate to privies or strangers is all one in regard that he had first given an estate to which the condition may be annexed for the livery and limitation shall be taken strongest against him that made it ibidem If I give land to one filio suo primogenito and he hath no Son at the time of the gift and after he hath a Son that son shall have the land by way of remainder and yet the remainder was not out of the Lessor neither did it vest at the time of livery but the Law construeth the livery and limitation more strong against the Lessor P. 17 E. 3. f. 29. Ployd vide ibidem plura If two Tenants in Common grant a rent of ten shillings this is severall and the Grantees shall have twenty shillings But if they make a Lease and reserve ten shillings they shall have onely ten shillings between them So an Obligation to pay ten shillings at the feast of our Lord God it is no plea to say that he did pay it but he must shew at what time or else it will be taken that he paid it after the feast for every act shall be taken more strictly against him that made it Noy Max. f. 15. 2 E. 3. p. M f. 140 b. 161. b. A generall pardon ought to be taken more beneficially for the Subject against the King 37 H. 8. f. 21. Coke l. 4. Vaughans case If I. S. submit himselfe to arbitrement of all Actions and Suites between him and I D. and I. N. it shall be intended collective of joynt Actions and distributive of severall Actions also because the words shall be taken stronger against him that speaketh 2. R. 3. 18. 21. H. 7. 29. If I grant 10 l. rent to Baron and Feme and if the Baron dye the Feme shall have three pound rent it shall be strongest taken against me the grantor for three pounds addition to the ten 8. Ass Pl. 10. So if I sow all my Land with Corne and let it for yeares the Corne passeth to the Lessee if I except it not So if I have a free Warren in my owne Land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren discharged and extracted during the Lease 8. A. 7 32. H. 6. If I. give Lands to I. S. and his heires males this is a good Fee-simple and the words males is void Bac. Max. f. 12. vide ibidem plura Yet this rule also faileth when another which the Law holdeth worthier cometh in place and which is of more equity and humanity It is a rule in the Civill Law valeant eo modo quo valere possunt and at the Common Law Benignae faciendae sunt interpretationes chartarum propter simplicitatem laicorum ut res magis valeat quam pereat Coke com f. 30 b. The interpretations of Deeds and charters because of the simplicity of the people are favorably to be made that the thing may rather stand and subsist then fall and perish and let all things stand by the same meanes they may stand And therefore if I give Lands to I. S. and his heires rendring five pounds yearly to I. D. and his heires this implyeth a condition to me that am the grantor Littleton yet were it a stronger exposition against me to say that the limitation shall be void and the Feoffment absolute So if a man make a lease to A. for yeares and after by his Deed the Lessor voluit quod haberet teneret terram pro termino vitae willeth that he should have and hold the Land for terme of his life this is adjudged by the word volo to be a good confirmation for life Coke com f. 301. b. Though it were stronger to say those words are void because they are not proper words of confirmation So if the Disseisor granteth a rent to the Disseisee and he by his Deed granteth it over and after doth re-enter in this case one and the same words doe amount to a grant and a confirmation So if the Disseisor maketh a Lease for life or in taile the remainder to the Disseisse in fee and the Disseissor by his Deed granteth over the remainder and the particular tenant atturneth the Disseissee shall not enter upon the tenant for life or in taile for then he should avoid his own grant which amounteth to a grant of the estates and a confirmation also ne pereat Coke ibidem 302. So if A enfeoffeth another upon condition that he and his heires shall render to a stranger and his heires a yearely rent of twenty shillings although this reservation be meerly void for that no estate moveth from the stranger and that he is not party to the Deed and therefore can be no rent yet shall it be taken for a penalty or for an annuall summ in grosse so as if they will not pay it according to the forme of the Indenture they shall loose the Land by the entry of the Feoffor and his heires which is to be observed that
holdeth his Lands and things by the Lawes of the Land wherein hee liveth and this commonly called the law of proeprty Nihil dat quod non habet Arist nemo potest plus juris in alium transferre quam ipse habet Coke com f. 309. b it is a common erudition in the Law that no man can grant that hee hath not Perkins f 15. for that is requisite that he who by his contract shall make another possessor of any thing should bee the proâ—rietor of the thing it selfe otherwise his contract is void Ployd f. 432 b. as if I possessed of an horse sell the Horse upon condition to another that he pay to mee at the feast of Christmas forty shillings for it and before the said feast I sell the horse to another and after the feast the first Vendee failes of payment by which I reseise the horse the second Vendee shall not have the horse for at the time of the second contract I had neither interest nor property nor possession of the horse but onely a condition which is not sufficient to make me able to contract for the property and possession therefore it is meerely void Ployden So if a man grant a rent charge out of the Mannor of Dale and in truth he hath nothing in the Mannor of Dale and after purchaseth the Mannor of Dale yet hee shall hold it discharged Perkins H. 15. So if one not seised of Lands maketh a Lease to another it is a good Plea for the Lessee to say that the Lessor had nothing in the Tenements at the time of the Lease Litt. and the reason of this is for that in every contract there must be quid pro quo for contractus est quasi actus contra actum and therefore if the Lessor had nothing in the land the Lessee hath not quid pro quo nor any thing for which he should pay his Rent and in that case he may plead that the Lessor non dimisit Coke Com. ibidem f. 41. b. vide ibidem plura If the Conusee of a Fine before any Attornement bargaineth and selleth the Signiory to another the Bargainee shall not distraine because the Grantor could not distrain for no man can transfer more right to another then he himselfe hath Coke Com. 309. b. Coke l. 6. f. 57. b. He that hath no seisin in the Land charged cannot give seisin of Rent vide plura Bredimans for no man can give that he hath not The King pardoneth one for making a bridge this is onely good for the fine and he must make up the Bridge because the Kings Subjects have interest in it 37. H. 8.4 Da tua dum tua sunt post mortem tunc tua non sunt Ployd 280. a. when one hath property in goods the property cannot be in him no longer then he liveth for after his death the goods belong unto another Nemo videtur rem amittere cujus propria non fuit Reg. I. C. no man can loose that of which he hath no property and therefore in a Replevin if the Defendant claim property the Sheriff cannot proceed for it is a rule in Law the property ought to be tryed by writ and therefore in this case where the tryall is by plaint the Plaintiff may have a writ de proprietate probanda directed to the Sheriff to trye the property and if thereupon it be found for the Plaintiff the Sheriff shall make deliverance Coke Com. f. 145. b. F. n. b. f. 77. If A. endict B. for stealing of Horses or other goods he must say de bonis catallis cujusdam A. For if there were no property there could be no stealing or injury for nemini vim facere videtur qui suo non alieno utitur Reg. I. c. Nemo reditum invito domino percipere possidere potest Coke Com. 303. b. no man can receive or possesse another mans Rents against the will of the Lord as if one hold of me by Rent which is service ingrosse and another which hath no right claimeth the rent and receiveth it of my Tenant by coertion of distresse or otherwise yet by the payment of my Rent to a stranger I cannot be disseised or ousted without my will or election but that I may distrain my Tenant for the Rent or have an assize against the â—ernor Lit. for a man cannot be disseised of a a Rent-service in grosse Rent-charge or Rent-seck by Attornment or payment of Rent to a stranger but at his election for the rule of the Law is no man can receive or possesse an other mans rent against his will Coke ibidem Quod meum est id amplius meum esse non potest Coke Com. f. 49. b. And therfore if lessee for years enter he is in actuall possession and then Livery cannot e made to him that is in actual possession whereby the Franke-Tenement or fee may inure to him in the remainder for that which is once mine cannot be more mine ibidem Thirdly From the Anteprecedents Aequivocum and Univocum AEQuivocum denoteth words of ambiguous and many significations which as Boetius signifies nothing nisi ad quasque res secundum voluntatem significantis applicetur unlesse they be applyed to the thing according to the will of him that declareth or expoundeth them of which the Law taketh notice and giveth these grounds and maximes Nobiliores benigniores presumptiones in dubijs sunt praeferendae Reg. P. C. And Coke l. 4. f. 13. b. Benignior sententia in rebus generalibus dubijs est praeferenda In doubtfull speeches and sentences the more favorable presumption and opinion is to be perferred As if one doth charge another that he hath forsworne himselfe by the Law it is not actionable for it may be he hath forsworne himself in usuall conversation but an action is onely maintainable against him that hath forsworn himself in Court of Record so ibidem f. 21. An Action upon the case was brought for these wordes for my Lands in Dallinson they seek my life adjudged not actionable because he may seek his life upon just cause which are the more favorable constructions So verba accipienda sunt in meliori sensu Hub. f. 106. Coke l. 4. f. 13. Wordes are to be taken at the best for the speaker though some of them cannot stand with that construction As thou art a Theefe and hast stolen a Tree it shall be adjudged of a Tree standing not felled which is not actionable But as it is said there in Hubberd 106. This rule holdeth not in Deeds and Pleas for in those words are taken more strongly against the speaker of which this reason may be given because commonly words in common language proceed of a sudden from choler and heat whereas words in Deeds and Pleas are grounded upon mature deliberation and consideration and therfore in Deeds this is a general ground Ambiguum pactum contra venditorem interpretandum est Reg. I. C. and Ambigua verba contra
without an originall is voide Kel f. 19. b. A remainder is limited to the King and before the inrolement of the deed the King granteth it over and then the deed is inrolled this will not make the grant good Coke l. 3. f. 29. An executor assigneth auditors to one who was accountant to the testator and his auditors find him in arrearages the Action of debt shall be brought in the Detinet onely and hath respect to the beginning 11. H. 6. If I have a villaine for yeares as executor and the villaine purchaseth land the executor entreth the land shall be to the use of the testator and assets in his hands because the villaine which was the cause of it was to such use Ployd f. 292. a. Chap-mans case Causa origo est materia negotii Cok l. 1. Shellies case f. 99. b. vide As if a servant hath an intent to kill his Master before the execution of his intent departeth out of his service being out of his service executeth his intent and killeth him which was his Master it is petit treason for the execution respects the originall cause which was the malice conceived when he was his servant vide ibidem plura I. S. buildeth a shop on the wast of a Mannor of which the Queene was seis'd the Queen granteth the Mannor to the Earle of Leicester and he never entreth nor taketh rent I. S. dieth and his sonne entreth there is no descent against the patentee because there was no disseisin against the Queene Dyer 266. b. Yet when the law giveth power and authority to doe any thing Exception the law adjudgeth of the thing by the act subsequent not precedent Coke l. 8. f. 146. b. As the law giveth me power or license to enter into a common Hostlery or Taverne or to the Lord to distraine or to the owner of the soile to distrain for damage feasant or to him in the reversion to view if wast be made and to the commoner to enter into the land to see his beasts but if he that entreth into the Hostlery or Tavern maketh trespass or if the Lord that distraineth for rent or damage fesant beat or slay the distress or if he that entreth to see wast breaketh the house or remaineth there an whole night or the commoner cut downe trees in these cases the Law shall judge by act subsequent that they entred to that purpose and shall be trespassors from the beginning for acta exteriora indicant intoriora secreta the outward acts shew the inward secrets and with what minde and with what intent he did enter So if a purveyor take my beasts for the hostle of the King by force of his commission it is legall but if he sell them in Market then the first taking is injurious Coke l. 9. f. 11. a. Tenant in taile hath issue two daughters and dieth and the elder entreth into the whole and after entry maketh a feoffment with warranty which is a lineall warranty for the one and collaterall for the other the law judgeth by the act subsequent that the entry was not generall for them both but that it was onely for her selfe and that it shall be a warranty to commence by disseisin for the one moiety Quod initio vitiosum est tractu temporis non convalescet Reg. I. Civ Quod initio non valet tractu temporis non convalescet Coke com f. 35. a. That which in the beginning is vicious or invalid cannot by tract of time bee made good or valid as tenant for life of a carve of land the reversion to the father in fee the son and heire apparent endoweth his wife of this carve by the assent of the father tenant for life dieth the husband dieth this is no good endowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a free-hold whereof hee could not have endowed his own wife Ployd f. 432. b. A. possessed of an horse selleth the horse upon condition that hee shall pay him at Christmas forty shillings for it and before the said feast he selleth the horse to another and at the feast the first buyer faileth of payment whereupon A. reseiseth the horse yet the second buyer shall not have him because at the time of the second contract A. had no interest nor property nor possession of the horse but onely a condition which was not sufficient to make the contract good A. seised of Lands in see maketh a lease for twenty yeares rendring rent to begin presently and the same day he maketh a Lease to another for the same terme the second lease is utterly void so as if the first Lessee surrendreth his terme to the Lessor or loseth the same by breach of condition or forfeiteth it by making a feoffment upon entry of the Lessor the second Lessee shall not have his terme because the Lessor at the making of the second lease had nothing in him but the reversion ibidem A feoffement to the use of the husband for life the remainder to I. S. the remainder to the wife for her joynture this is not a joynture to bar dower because it did not take effect immediately after the death of her husband Hut Rep. f. 50. An infant or a married woman makes a will and publisheth the same and afterwards dieth being of full age or sole notwithstanding this both Wills are void 10. Eliz. 344. Noy Max. f. 4. A lease for life the remainder to the Major and commonalty of B. whereas there is no such it is void though the King doth create such a corporation during the particular estate so a remainder limited to John the son of I. S. having no such son and afterwards a son is borne to him whose name is John during the particular estate it is void Doder Que malo inchoata sunt principio vix bono peraguntur fine Those things which have a bad beginning can hardly have a good end Coke l. 11. f. 78. As a man seised of Lands in fee by deed upon good consideration granteth the Land after his death to the Queene her heires and successors such grant is not made good by the generall words of the act of 18. Eliz. because it was void in the beginning and with it accordeth 38. H. 6. f. 33. The Abbeffe of Sions case and the Earle of Leicesters case Ployd f. 4000. a stronger case then it vide ibidem plura Magdalen Colledges case Coke l. 4. f. 90. a. If a son and heir apparent of a Baron reteyne a Chaplaine and giveth to him his letters under signe and seale and after his father dieth and this Chaplaine purchaseth a dispensation this retainer and those letters will not serve him in that they were not availeable at the beginning vide ibid. Dâ—uries case Coke câ—m f. 352 b. If a fine be levied without any originall it is voidable but not void but if an originall be brought and a retraxii
entred and after that a concord is made or a fine levied this is void in respect the verity appeareth on record for where the verity is apparent in the record the adverse party shall not be estopped to take advantage of the truth for he cannot be estopped to alleage the truth an impropriation is made after the death of the Incumbent to a Bishop and his successors the Bishop by indenture demiseth the parsonage for forty yeares to begin after the death of the incumbent the Deane and Chapter confirmeth it the incumbent dieth this demise shall not conclude because it appeareth that he had nothing in the appropriation till after the death of the incumbent ibid. Coke l. 10 f. 62. a. If a Bishop maketh a Lease of Lands for four lives and one of them dieth in his life so as now there be but three and after he dieth yet it shall not bind the successor for those things which have a bad beginning can scarcely be brought to a good end Ployd f. 344. a. If a Feme covert giveth Lands devisable by the common law by will and publish it and after the Baron dieth after the wife dieth the devise is void because the foundation is founded on the first parts to wit the making and publiâ—hing which are void though at the time of her death she was discovert but the death without a good beginning giveth no effect so if an infant maketh a Will and publish it and after is at full age it is not of effect causa qua supra ibidem Ployd f. 344. a. If one disseise one of two acres in Dale and the disseisee releaseth to the disseisor all his right he haâ—h in all the lands in Dale and delivereth the release as an escrowl to be delivered to the disseisor as his deed the last day of May before that time the disseisor diseiseth him of another acre in D. and after the deed is delivered to the disseisor the last day of May the right which hee hath in the third acre shall not pass for the beginning and the intent is to be respected in all acts So if one have a reversion in fee of two acres which I. S. holdeth for life and granteth to another the reversion of all the acres that I. S. holdeth for life and then the grantor purchaseth the reversion of another acre I. S. holdeth for life and after I. S. attorneth to the grantee for all the three acres the third acre shall not pass for the reason abovesaid If a man devise the manner of Dale or white acre Excepton and have nothing in it at the time of making the Will and after purchaseth it there it shall pass to the devisee for it shall be taken that his intent was to purchase it Ployd f. 344. a. If I let B. acre by deed indented in which I have nothing and I purchase it afterwardes it is a good Lease 8. f. 3. 24. F. n. b. f. 73. c. If a man be distrained in any liberty and he sue a replevin there by plaint or by Writ and after hanging the plaint in the Liberty he be distrained again for the same cause by the same person who distrained he shall not have a Writ of recaption because the plaint is not holden before the Sheriff c. nor before the Justices but if the plaint bee removed by pone and out of the Liberty before the Justices there the party shall have a Writ of recaption as well for the reprisall before the Writ as for the reprisall after whereas otherwise before the removal a recaption did not lie upon the reprisall of a distress in case a replevin was sued in a Mannor or Liberty and not in the County Coke l. 8. f. 78. a. Tenant in taile is the remainder in taile of the grant of the King if tenant in taile acknowledgeth a fine or suffereth a common recovery it shall not barre the issues because the reversion was in the King but if after the reversion be granted and put out of the crowne the fine shall bar the issues Coke com f. 14. a. Quod prius est dignius est qui pâ—ior est tempore potior est jure Eract l. 2. c. 10. and therefore among the males the eldest brother and his posterity descending from him shall inherit before any yonger brother because Littleton saith he is most worthy of blood and Bracton Siquis plures filios habuerit jus proprietatis primo descendit ad primogenitum eo quod inventus est primo in rerum natura whosoever hath many sons the right of propriety shall descend to the first borne in that hee first is found in the nature of things and in King Alfreds time Knights fees descended to the eldest son Glanvill l. 7. c. 3. vide ibidem plura Coke l. 4. Druties case f. 90. a. Though a Countess may have as many â—haplaines as she will by the Common Law yet by the statute can shee have but two capable of dispensation and reason requireth that he that hath served longest should be first preferred for he that is the former in time is the more worthy in Law Ployd f. 259. a. D. Hales case Baron and Feme are joyntenants of a Lease for two yeares there are no moieties between them but every of them hath the whole and if the husband charge the Land shee after her death shall avoid it 7. H. 6. f. 1. for she is remitted to the terme and is in upon a title parameunt the grant So if a man alien trees growing upon the ground entailed or in land which he hath in right of his wife and dieth before they are cut downe the alienee shall not fell them because the issue in taile is in upon a title paramount the alienâ—tion P. 18. E. 4. f. 5. 14. H. 4. f. 32. The Lord may take his Ward which is an apprentice out of the possession of his master because his title to his body accrueth in respect of his signiory which is more ancient than his apprentiship Ployd ibidem When one hath a presentment to a Church two turnes and another a third turne if he that hath the third turne bring a â—uare impedit he shall not begin with his owne turne first but with the other two turnes Vnumquodque principior um est sibimetipsi fides cum ea negantibus non est disputandum quia ad principia non est ratio Fortescue de laudibus legum Angl. f. 11. Dyer 271. a. There are principles of being so all causes are the principles of their effects and there are principles of knowledge so a proposition by which as the more knowen another is conceived is a principle and of this principle it is said That every principle is of credit to it selfe and that we ought not to dispute against denyers of principles As arrearages of Rent-charge being due to a woman sole and after shee taketh an husband and then another day of payment
amercement is pardoned vide ibidem The husband and wife make a lease by Deed the husband dyeth the wife accepteth the rent if the Lessee lose the Deed of the Lease the wife shall avoid it 15. E. 4. 17. Coke l. 1. f. 2. Buchuâ—sts case If the Feoffor make a Feoffment with warranty the Feoffee shall not have the Charters unlesse by expresse grant but the Feoffor shall have all the Charters and Evidences which are materiall for the maintenance of the title of the Land and upon which he may maintain his warranty paramount but if the warranty be determined he shall have them no longer Ployd f. 382. a. Nevills case The King grants to two for their lives and the life of the survivor of them the Sheriff-wike of Chester and one of them was attainted of high Treason all the Office was forfeited because the Office was entire and could not be severed ibidem The King granteth the Office of the keeper of a Parke to two and the one faileth in discharge of his duty the whole fee shall determine so it is if an annuity be granted to two for Counsell and one of them refuse because the Office and Grant is entire and cannot be severed and the cause ceasing but in one the whole annuity shall cease Exception Dyer 320. Pl. 13. An Arbitrement was between two of diverse things and among others there was one article that one party should have yearly for the space of six yeares twenty shillings toward the keeping and honest education of A. B. and A. B. dyeth before the fourth year of the sixth yeare yet the payment of the 20 s. shall not cease during the six years which is a certaine terme and is a duty to the party himselfe towards the finding of A. B. Dier 141. Pl. 44. King Ed. 6. granteth to the Lady Mary his Sister the Mannor of D. for terme of her life according to the Tenor and effect of the last Will of H. 8. which was that shee should have it so long as she was unmarried afterwards she granted a rent charge out of that Mannor after which grant K. E. dieth by whose death the reversion came to her being Queene and afterwards shee married Philip King c. and it was doubted whether the rent charge should remaine or no. Davis 3. a. b. In ancient times a great part of tenements were holden of their Lords by Socage which was that the Tenants ought to come with their sokes by certaine daies by the yeare to plow and sow the demesne of the Lords and because such workes were made for the livelyhood and sustenance of their Lords they were quitted of all other services and after such services were changed into monies by consent of the Lords though the Lords did alien their demesnes and had no lands to plow or sow yet payed they their rents yearely to the Lords so the Church and religious houses after the procuration of Victualls was reduced to a certaine sum did pay it to the Ordinary yearely though he made no visitation so as the rule The cause ceasing the effect also ceased held not in those cases So Coke l. 4. in Capels case it was resolved that where a man held certaine land by rent for Castle-guard though the Castle was ruined or decayed yet the rent remained and pro doth not import a condition as in the case of an annuity granted pro consilio impendendo but a full and perpetuall recompence and satisfaction Vide Davis plura ibidem In jure non remota sed proxima causa spectatur Bacon Max. f. 1. 2. In the Law the next and not the remote cause is respected For it were infinite for the law to judge of the cause of causes and therefore judgeth of acts by the immediate and next cause as Bar. Empsons case f. 2. An annuity is granted pro consitio seu impendendo and the grantee committeth treason whereby hee is imprisoned that the grantor cannot come unto him for counsell yet the annuity is not determined by this non fesans for the law looketh not on the remote cause to wit the grantors offence which was the cause of the imprisonment but excuseth it because his not giving of counsell was compulsory and not voluntary in regard of the imprisonment which was the immediate cause So if a parson maketh a Lease and be deprived or resigneth the successors shall avoid the Lease for the law regardeth not the cause of the deprivation or the resignation which is the act of the party but the act of the Ordinary in the admission of the new incumbent 2. H. 4. 3. 26. H. 8. 2. A foeffment in fee upon condition that the Feoffee shall enfeoff over and if the feoffee bee disseised and a dissent case and then the feoffee bindeth himselfe in a statute which statute is discharged before the recovery of the Land this is no breach of the condition because the land was never lyable to the statute and the possibility which was the remote cause that it should bee lyable upon the recovery the law doth not respect Coke l. 2. Winningtons case This rule faileth in covenous act where the law taketh heed to the corrupt beginning and also in criminall acts where the law principally regardeth the first motive vide ibidem plura Nihil magis consentaneum est us iisdem modis res dissolvatur quibus constituitur Reg. I.C. and Bracton Nihil tam conveniens est naturali aequitati unumquodque dissalvi eo ligamine quo ligatum est Cok. l. 2. f. 53. a. There is nothing more agreeing to naturall equity then that every thing should be dissolved by the same meanes it was bound As no estate can be vested in the King without matter of record so no estate can be devested out of him without matter of record Ployd f. 553. Walsinghams case and 180. Nevils case 12. H. 7. and many other bookes for nothing is so convenient to naturall equity then that every thing should be dissolved by the same band it was tied and Coke l. 4. f. 57. b. In case of attainder and office the King is entitled by double matter of record and therefore the party grieved ought to avoid it by double matter of record and not by single travers or Monstrans de droit but is driven to his petition vide ibidem plura But when a man avoideth the Kings title by as high a matter of record as the King claimeth though the King be entitled by double matter of Record he may have it by way of Plea as one is attainted of treason by Parliament an office findeth his lands by which the King seiseth them the party may alledge restitution by Parliament and a repeale of the former Act 4. H. 7. 7. b. Finch Nomot 12. Coke l. 5. f. 26. a. Indentures being made for declaring of the uses of a subsequent fine recovery or other assurance to certaine persons and within a certaine time and to certaine uses are but
a directory and doe not bind the estate or interest of the land yet if the fine or recovery or other assurance be pursued according to the Indentures there cannot be any bare averment against the Indentures to be taken in such case that after the making of the Indentures or before the assurance by mutuall agreement of parts was concluded and agreed that the assurance shall bee to other uses but if other agreement or limitation of uses bee made by writing or by other matter so high or more high then the last agreement shall stand for every contract and agreement must be dissolved by a matter of as high a nature as the other was vide ibidem plura in the Earle of Rutlands case Coke l. 6. f. 43. b. Blakes case A writ of Covenant and the breach was for not reparing of the house and the Defendant pleaded accord betweene him and the Plaintiff with satisfaction and though it be regularly true that arbitrement or accord with satisfaction is no plea where the action is founded upon a deed for every thing is to be discharged by a matter of as high a nature as it is obliged yet there is a diversity where the duty accrueth by the deed in certainty tempore confectionis as by covenant bill or obligation to pay a sum of mony there it is a certaine duty and ought to bee discharged by a matter of as high a nature but where there is no certaine duty accrueth by deed but onely a wrong or default subsequent together with the Deed which onely giveth an Action to recover damages as for default of reparations there an accord with satisfaction is a good Plea because the end of the action is onely to have damages in the personalty for the action is not meerely grounded on the deed but also from the deed and the wrong subsequent and generally in all Actions where damages are only to bee recovered arbitrement or accord with satisfaction is a good plea vide ibidem plura Vnum quod que dissolvitur eo modo quo constituitur Nay Max. f. 4. As an obligation or matter in writing cannot be discharged by an agreement by word but by writing and though in abatement as a receipt of part upon a deed it shall not bee admitted without a deed of it 19. E. 4. 1. b. In an annuity growing by prescription rien arreare is a good plea for a prescription is no matter in deed but in an annuity by deed it is no good plea without shewing an acquittance 3 H. 7. 33. An Act of Parliament cannot bee avoid but by Parliament The submission of an arbitrement by deed must be countermanded by deed Things may bee avoided and determined by the ceremonies and Acts like unto those by which they were created Bacon uses c. as Livery and Seisin by entry a grant by claime and charge by discharge and an use which is raised by declaration and limitation may cease by words of declaration and limitation Non impedit clausula derogatoria sine clausula de non obstanâ—e de futuro quo minus ab cadem potestateres dissolvantur a quibus constituuntur Bacon Max f. 67. Acts which are in their nature revocable cannot by strength of words be fixed or perpetuated the law judgeth it to bee idle and of no force to deprive men of that which is most incident to humane condition and that is alteration and repentance As if I make my will and in the end thereof adde this clause Also my will is if I shall revoke this present will or declare any new will unless it bee in writing subscribed with the hands of two witnesses c. that such revoration shall he void any such pretended will to the contrary notwithstanding yet may I by paroll without any writing repeale the same and make a new one So if a statute bee made that no sheriff shall continue in his office above a yeare and if any patent be made to the contrary though it bee with a clausula de non obstante it shall be void yet notwithstanding such a Patent of the Sheriffs Office made by the King with a non obstante will be good in law because it is an inseperable prerogative of the Crowne to dispence with politike statutes and of that kind notwithstanding any derogatory clause 28. E. 3. c. 7. 24. E. 3. c. 9. 2 H. 7. 6. If the Parliament should enact that there should be no Parliament but that the King should have the authority of Parliament and rule by the ancient lege regia it were good in Law quia potestas suprema seipsum dissolvere potest because the highest power may dissolve it selfe Bacon From the matter DEbile fundamentum fallit opus Noy Max. f. 5. when the foundation faileth all goeth to the ground As when an estate to which a warranty is annexed is defeated the warranty also is defeated as if Tenant in taile discontinue and the discontinuee is diseised or maketh a Feoffment upon condition in whose possession a collaterall ancestor of the issue in taile releaseth and dieth the issue is barred but if the discontinuee enter upon the disseisor or upon the Feoffor for the condition broken the issue is restored to his formedon Lit. Coke l. 6. f. 14. a. Burton was deprived for adultery and afterwards by a generall pardon adultery was pardoned and though the deprivation was in force and that he that after the deprivation was admitted instituted and inducted remained Parson yet by force of the said pardon is hee become Parson againe without any sentence declaring the deprivation to bee void for by the pardon the adultery which was the foundation of the deprivation was discharged and by consequence all that was depending on the said foundation is discharged for sublato fundamento corruit opus So if an execution bee sued upon a statute and then the connusee maketh a defeasance upon the statute upon the payment of twenty pound if the twenty pound be paid the execution shall be defeated as well as the statute 20. Assize Pl. 7. If there be a disseisor of Lands in ancient demesne and the Lord confirmeth to him to hold at the common Law the disseisee reentreth now the land shall be ancient demesne again for the estate wherupon the confirmation should enure is defeated 49 E. 3. 8. A Church appropriated to a spirituall corporation becommeth disappropriate if the corporation be dissolved 3. E. 3. 74. b. Licet tenenti vetus opus reficere non novum facere Febl 2. f. 51. A Tenant may repair an old work but not make a new one As by our law the Tenant may cut downe trees for the amendment of houses or reparation of them 44. E. 3. 21. and 44. 11. H. 4 32. But if the necessity of a new house commeth in question as to build a Stable or no house be built upon the Land at the time of the Lease the Lessee may not cut downe trees to make a
house 11. H 4. 32. From the Forme MVtata forma prope interimitur substantia rei Ulpian reg I. C. Doderidge f. 132. 133. The English Lawyer The forme being changed the substance and essence of the thing is destroyed If a man take my Barley and make Mault thereof it cannot be seised by the former owner and yet neither quantity nor outward forme is lost but it is become a thing of another nature and use because the inward forme upon which depended the use is changed So if a man of any peece of cloth which he had to keep containing twenty yeards in one whole peece will cut the same into twenty severall yeards and peeces the matter nor the quantity is not changed and yet if hee will restore the same peeces I am not bound to receive them So if a man possessed of twenty packs of Wooll by his last will deviseth all the said Wooll to I. S. and after the Testator converteth all the said Wooll into cloth and dieth possessed of the same cloth I. S. the devisee shall not have by law the cloth made of that Wooll for that the forme of the Wooll is changed though the matter remaine and is turned to a thing of another nature and the turning it into cloath is a Countermand of the Testators Will. So if a man have a dwelling house whereunto there is a Common of Estovers belonging if this house by casualty of fire or tempest be burnt or blowen downe or taken downe and a new be built in another place neere or in another forme the Common of Estovers is lost and not to be used in this new house but if the first house were not wholy pulled downe but repaired or another new house be built upon the same foundation and in the same forme with the former the Common of Estovers remaineth with the new house for that in Judgement of Law is the same house for the building on the same foundation is but a reparation ibidem So 22. H. 6. 28 It is not sufficient in a bar of a Writ of Wast of an house to say that the Defendant hath built a new house in liew of that which is fallen but the Defendant must say that it is as much in length and as much in latitude as the other was or at the least he must say that it is as profitable but when an house is ruinous at the making of the lease and after falleth and the Defendant buildeth a new it is not necessary that he make another house of equall longitude or latitude Fulb. l. 2. f. 51. From the end SApiens incipit a fine Coke l. 10 f. 25. b. Et quod primum est in intentione ultimum est in executione Suttons Hospitall case A wise man beginneth from the end and that which is first in intentions is last in Execution The pious and charitable end of Sutton was the grand motive to the King to give to him meanes by creation of a capeable body politick by way of incorporation to have a perpetuall succession to perfect and perpetuate so pious and charitable a worke Ibidem Finis rei attendendus est fines mandatorum domini regis per rescripta sua deligenter sunt observandi for the end in all humane actions is of singular regard for that all things attempted by wise men have their end and the virtue of the thing is measured by the end Doder Coke l. 5. f. 87. a. In Blunfeilds case The end and fruite of a suit is satisfaction but the execution of the body is no satisfaction but a gage for the debt 4. H. 7. 8. 33. H. 6. 47. And therefore after his death he shall resort to another execution for it should be mischeivous to the Plaintiff to lose his debt without any default in him neither is the execution of the body a valuable execution and therefore after his death he shall have a new execution untill he hath had a valueable execution out of his Lands and Goods which in Law and Equity ought to be subject to the payment of his debts but where no other satisfaction is to be had thereby Qui non habet in aere luat in corpore ne quid peccetur impune Hob. Rep. f. 133. He who hath no mony let him be punished in body least he should offend without punishment vide ibïdem Exitus acta probat finis non pugna coronat Dod. E. Law◠f. 143. Coke l. 9. f. 82. b. Finis coronat opus the Law favoureth the consummation and prefection of things for the end crowneth the worke and doth all as the end of an Attornment is to perfect a grant which the Law therfore favoureth according to the resolution of the Bookes 12. E. 4. 3. 4. where it is holden that Tenant in taile Infant or Feme-covert may be bound by an Attornment gratis in pais and in 18. H. 8. Fortescue holdeth that if one granteth the service of his Tenant which is within age who within age attorneth shall he after in an avowry be admitted to say that he was within age at the time of the Attornement I say no for he did nothing but that which he ought to doe Ibidem Ployd f. 18 a. The scope and end of every matter is principally to be considered in all things and when the scope and end of the matter is satisfied then the end of the matter is accomplished as here in Renigers case as the end of the Statute of 7. E. 6. c. 2. is that the King shall have his subsidy and if the agreement be here sufficient to give him the subsidy and to assure the King of it then the end of the Statute is performed and so here it is for the agreement authoriseth the King to weigh the Woad by his collector at what time he shall please and when that is done the King hath title to action and so is in surety So 33. E. 3. Joynder in aide 10. Vouchee cometh into the Coutt to be viewed and being viewed is awarded of full age yet he shall not be driven to answer till he come in to the same intent by another Processe So 19. E. 4 3. The 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 appeare So 51. Ass Pl. 2. A man is warned by writ to answer to a matter he shall not be driven to answer to any other matter then is contained in that writ though the King be a party As if by office it be found that Lands in cheif descended to I. S. a foole naturall and that A. occupieth them whereby a Scire facias goeth out against A. to answer why the Lands should not be seised into the Kings hands for the ideacy of I. S. A cometh in and pleadeth that I. S. when he was of perfect memory made a release to one B. who infeoffed A. this is good enough without
part which agreeth not with the whole Ployd f. 161. a. And therefore every part of a deed ought to be conferred with the other and one entire sense thereupon to be made as if I release all actions and stay there all actions are gone but if I say further which I have as Executor to I. S. there the generality is restrained So 17. E. 4. f. 22. The King granteth to Garter King of Heralds ten pounds for the terme of his life if he had stayed there he had had it absolutely for terme of his life but where he faith further by reason of his Office by it hee hath restrained the generality vide ibidem plura in Throgmortons case so as if he be removed from his Office he shall lose his annuity Parte quacumque sublata integrante sive necessaria tollitur totum the substantiall or necessary part of any thing being taken away the whole is destroyed Coke l. 3. f 41. in Ratcliffs case As none can be procreated but of the father and the mother and ought to have in him their two bloods which bloods commixed in him by lawfull marriage constitutes and makes him heire so none can be heire to any unlesse he hath in him both the bloods to whom he shall be made heire and therefore the heire of the halfe blood shall not inherit because hee wanteth one of the bloods which make him inheritable for the blood of the father and mother are but one blood inheritable and both are necessary to the procreation of an heire and therefore if there be Baron and Feme Donees in speciall taile and the Baron is attainted of treason and executed having issue and the Feme die the issue shall not have the Land because the father is attainted for he ought in his lineall conveyance to make himselfe heire as well of the part of his father as of the part of his mother Dier f. 332. b. And that bar and forfeiture is made by the Statute of 26. H. 8. c. 13. which provideth that every offender convict of high treason shal forfeit to the King c. All his Lands c. saving to every person all his right title interest c. so as the issues in taile are barred by that statute because the heire is disabled and cannot make himselfe heire in his lineall convâ—yance as well to the father as mother Coke l. 9 f. 140. a. upon which reason Britton saith that if one be attainted of felony by judgement the heires engendred after the attainder shall bee excluded of all manner of succession of inheritance as well of the part of the father as of the part of the mother because at the time of the generation of him the fathers blood was corrupted et ex leproso parente leprosus generatur filius Coke l. 3. f. 41. vide plura From the circumstances of time and place MOmentum instans est unum indivisibile in tempore quod non est tempus neque pars temporis ad quod tamen partes temporis copulantur Ployd 110. b. The distinction of a moment cannot be discerned or observed in the actions of men who cannot doe any thing without the space of time yet as Ployd f. 258. b. in Madam Hales case in things of instant there is a priority of time in the consideration of the Law as in a felon of himselfe the forfeiture shall have no relation but to the time of his death and the death precedeth the forfeiture and notwithstanding the forfeiture commeth at the same instant when he dieth yet in consideration of Law one shall bee said to precede the other though both shall be said to come at an instant for every instant hath the end of one time and the commencement of another and so in the death of a Felon of himselfe the death and the forfeiture commeth together and at the same time and yet there is priority to wit the end of his life is the beginning of the forfeiture and yet the forfeiture is so neere the death that there is no meane time betweene them but are conjoyned for a moment or instant is one indivisible thing in time which is not time nor part of time to which notwithstanding the parts of time are conjoyned vide ibidem plura and in the case between Fulmasten and Steward fo 110. So Fulbeck in his Pandects L. 1. f. 9. b. The existence of a moment cannot possibly be discerned and therefore is not so much as the twinckling of an eye yet the Law doth operate without compass of time in an instant but man never for every act of man must have space longer or shorter but the nature of such instants as the law doth imagine is such and so suddaine that as the Civilians omnom respuunt moâ—am and the reason is because in the operation of the law that which is imagined to be done is dicto citius presently done and whereas the act of man is mixed with the act of Law though in regard of the same thing the act of Law is momentary yet the act of man must needs beare some delay as those things by the civill law which are taken from the enemies doe incontinently become his who doth seise and take them the law doth give them unto him presently yet there must be a time to take them that the Law may give them So if a Lease be made to A. for the life of B. and A. dyeth C. entreth into the Land and enjoyeth it as occupant the Law because it will not have the freehold in suspence doth imagine that it was presently and immediately in him after the death of A. and that he entred presently but if we respect the entry as the Act of man we must needs conceive that he had some time to enter into the Land and by his entry which is an act of motion to gaine the free hold ibidem Quae incontinenti fiunt in esse videntur Coke l. 8. f. 77. a. Those things which are done in an instant seeme to be in esse or in being in Staffords case as a particular estate and the increase of a particular estate ought to take effect by the same deed or grant or â—y two deeds delivery at the same time which is all one in effect for those things which are done in an instant and at the same time seeme to be in being And the particular estate and the increase of the estate upon it is but one grant to take effect out of the same root and though that it vesteth at severall times yet when it vesteth it hath the vigor and force of the same grant 27. H. 6. f. 7. So l. 2. f. 71. a. A condition cannot precede an estate but ought to be in the said conveyance or comprised in another deed delivered at one and the same time as the books are agreed in 17. Ass 2. and 34. Assise for the above said reason vide ibidem S. Cromwels case But Coke com f. 236. putteth
a difference between inheritances executed and inheritances executory as if Lands be executed by livery they cannot by Indenture of defeasance be defeated afterward or if the disseisee release to a disseisor it cannot be defeated by Indentute of defeasance afterwards but at the time of the release or feoffment the same may bee defeated by Indentures of defeasance for it is a Maxime in law quae inconunenti fiunt in esse videntur But Rents Annuities Conditions Warranties such like that be inheritances executory may be defeated by defeasances made either at that time or at any time after so is the law of statutes recognisances and obligations and other things executory ib. Agreeable to this rule is the reason of the case put by Bro. judgement 148. That if a Feme suffer a recovery of her joynture against the statute of 11 H. 7. without the assent of him in the reversion and after hee in the reversion releaseth to the recoveror by Fine that assent commeth too late and cannot make the recovery good was once void and for the same reason the consent of the major part of a Chapter must bee done at one time simul semel and not scatteringly or at severall daies vide Davis Rep. f. 48. b. So Pl. f. 135. a. b. A Lease by deed for 11. yeares and in security of the terme the Lessor made a Charter upon condition that if he was disturbed of his terme he should have fee and livery and seisin was made as well upon the one Charter as the other then the Lessee was disturbed and it was adjudged that he should have fee because the Charters were delivered at one and the same time T. 10. E. 3. f. 521. Tempus est mensura motus secundum prius posterius Aâ—ist 4. Phys Time is the measure of motion according to priority and posteriority for as the motion doth measure the place so doth time the motion as a days journey is measured of a day and an houres of an houre and because all contracts and matters of entercourse doe fall within the lists and precincts of time therefore the moments and measures of time should be publikely and familiarly knowne to popular conceits For tempus est mensura rerum time is the measure of all things and as Ployd f. 555. b. the diversity of estates proceeds from the diversity of time for the estate in Land is the time in Land for he that hath a fee-simple in Land hath time in the Land without fine or the Land for time without end so he that hath land in taile hath time in it or the land for time so long as hee hath issue of his body and he which hath an estate in Land for life hath time no longer then that he shall live and so for another mans life or yeares And as the time measureth things so doth the law measure time as by the true computation the lesser yeare consisteth of 865. daies and six houres whereby in every fourth yeare there is die excrescens which maketh that yeare to have 366. daies which is called the greater yeare yet by legall computation a quarter of a year containeth 91. daies half a year containeth 162. daies for the od houres in legal computation are rejected And in the statute de annob Sextil it is provided Quod computetur dies ille excrescens dies proxime praecedens pro uno die that the day excrescent and the day precedent shall be computed for one day so as in computation the day excrescent is not accounted so a month is regularly accounted in law for twenty eight daies and not according to the Solar month nor according to the Kalender unlesse it be for the account of the Lapse in a Quare impedit or the right of the Patron Coke com f. 135. b. And Kellaway 21. H. 7. f. 75. A feast in our law beginneth in the morning and endeth at the night and the naturall day beginneth ad ortum solis and endeth ad occasum solis and so is it taken and adjudged in our Law But the feast by the law of the Church beginneth at noone in the Vigil and lasteth untill the midnight of the next day and the night which maketh burglary beginneth ad occasum solis and lasteth untill the rising of the Sunne for where a man hath broken an house after the setting of the Sun it hath beene adjudged burglary for if the night should begin so soone as the day is ended and last untill the morning of the next day it would be too hard a thing to try c. ibidem In omnibus stipulationibus id tempus spectatur a quo contrabimus Reg. I.C. Paulus 62. ad edictum in all assumpsits and contracts that time is respected from which we contract as a man seised in fee maketh a lease for ten yeares and after selleth the land and taketh it back againe to him and his wife and then the husband and wife letteth it for twenty years reserving a rent the husband dieth the wife accepteth the rent for the first ten yeares by this the second lease is not affirmed for the acceptance of the rent before the lease beginneth and is not due is no acceptance 1. E. 6. 37. Coke l. 5. f. 1. a. b. in Claytons case From henceforth in a Lease shall be accounted from the delivery of the Indentures and not from the computation of the date for from henceforth is all one to say as from the making of the Lease Et traditio loqui facit chartam delivery maketh the deed to speake where a Lease is to begin from the making of a Lease there the day of the delivery shall be taken inclusive and the day it selfe is parcell of the demise but if it be made to begin from the day of the making or the day of the date then the day it selfe shall be taken exclusive and excluded And whereas the statute of 27. H. 8. Of enrolement saith That all such writings shall be enrolled within six monthes after the date of the same writings indented if the writings have date they shall bee accounted from the date but if the date be wanting the six months shall be accounted from the delivery vide ibidem plura In obligationibus in quibus dies non ponitur presenti die debetur Pomponius nulla temporis designatio praesens denotat Reg. I. C. And it is a ground in our Law that when a man 's bound in twenty pound to pay ten pound and no day of payment is limitted the lesser sum is due presently and ought presently to bee tendred 20. E. 4. 8. 21. E. 4. 8. In the case of the Mayor of Exeter by all the Serjeants and of some of the Justices yet by the opinion of Starky the discretion of the Justice shall limit a time having regard to the distance of the place and to the space of time wherein such a thing may be performed for the Obligor is not
compellable to pay the mony within an houre neither may he deferre the payment for seven yeares but the time must be adjudged by law Ib. So if I prescribe to have common by viâ—inage in such a village namely every yeare after the Corne is severed and carried away to put my beasts into the field and all the terr tenants of the village have carried away their corne and hay except one man onely the law shall adjudge whether he had sufficient time to carry away his corne and hay when his neighbours did carry it away Ibidem by Starky and Fairfax and so in the case before the discretion of the Judges ought to measure the time and surely his opinion seemeth reasonable unto me though I dare not affirme it to be Law for every mans businesse ought to be rated by a convenient time Fulb. l. 1. f 14. a. So Coke l. 3. f. 28. b. Whereas by the statute of 34. and 35. H. 8. of wils and the statute of 32. H 8. of wills shall be expounded that the King shall take for his full part c. of all such Mannors and Lands as shall by any meanes descend or come by descent c. immediately after the decease of the same devisor c. It was said that the word immediately shall not have a strict construction that iâ— ought to bee done in ipso articulo temporis in the same instant of time but shall bee satisfied if it be done in convenient time as in 18. E. 4. 22. If a man be bound to make an obligation immediately yet hee shall have convenient time to make it Ibidem And by the civill law when no day of payment is limitted when the Venâ—ee is to pay his money c. the law doth limit a time and assigne to the pâ—rty charged with the payment the space of threescore daies Fulb. f. 14. l. 1. a. Quam longum debet esse rationabile tempus non definitur in jure sed pendet ex discretione justiciorum Coke cam f. 56. b. A reasonable time shall be adjudged by the discretion of the Judges before whom the cause dependeth As if a man be seised of a Mesuage in fee simple fee taile or for terme of life who hath certaine goods within the same house and maketh his Executors and dieth yet the executors shall have free entry egresse and regresse to carry out of the same house the goods of their testator by a reasonable time which reasonable time shall be adjudged by the discretion of the Judges And so it is if the Lessoroust his Tenant at will he shall have free entry egresse and regress into the said house by reasonable time to carry away his goods and Vtensils So also is it of reasonble fines customes and services upon the true estate of the cause depending before them for reasonablenesse in these cases belongeth to the knowledge of the law and therefore to be decided by the Justices and this being said of time the like may be said of things incertaine which ought to be reasonable for nothing that is contrary to reason is consonant to law ibidem Proprietas temporis fingenda est secundum subjectam materiam Reg. I. C. The propriety of time is to be feined or fitted according to the subject of the matter As if one deviseth by will in writing land to one and his heires and after in another clause he deviseth out of that Land a rent charge to one and his heires that shall be good and the rent in construction of law shall be taken to be first devised though it be last in words Ployd f. 541. a. So if one deviseth a terme for yeares to his son and that the wife shall have it during the sons minority this is first a devisere the wife and afterwards to the son when he commeth of full age vide ibidem plura Qui male agit odit lucem Coke l. 7. f. 66. a. and therefore it was resolved by all the Justices and Barons of the Exchequer that an arrest in the night was lawfull as well at the suite of the Subject as the suite of the King for the Officer and Minister of Justice ought to arrest him when he can finde him for otherwise peradventure he shall never finde him for he that doth evill hateth the light and if the Officer doth not arrest him when he findeth him and may arrest him the Plaintiff shall have an action upon the case and shall recover all his losse and damages and it is like unto the case for Damage-feasant and therefore one may distraine in the night or otherwise peradventure he shall not distraine vide ibidem in Mackallyes case He that doth evill hateth the light quia nocte latent mendae because offences are hidden in the night and therefore as the Civilians fur diurnus differt a nocturno a nocturnall theife differeth from a diurnall and receiveth a different and more greivous punishment with which the common Law accordeth for he that breaketh a dwelling house in the night although he carrieth away nothing committeth felony and burglary and by the Law is deprived of Clergy and suffereth death without mercy whereas if it had been committed in the day he had been capeable of mercy and clergy Qui male agit odit lucam omnia delicta in aperto leviora funt Coke l. 8. f. 127. a. He that doth evill hateth the light and all open offences are the more lightly to be punished as a Forrainer who keepeth an inward shop is a greater offender then he that keepeth an open Shop for hidden places and corners are more dangerous and offensive for there they may use deceit and not be subject to the search and therfore if a forrainer which hath an open Shop shall forfeit forty shillings he that is a Forrainer and offender in secret places is worthy to forfeit five pound for it is the rule of Law and reason quod clam delâ—nquens magis punitur quâ—m paâ—am he that privately offended shall be more punished then he that offendeth openly Tempora mutantur nos mutamur in illis Coke l. 6. f. 78. Times and seasons are changed and so in them are we as at the first the Leases were distributed in decurias or decennas and therefore were called decennarij and out of every ten one of them was called capitalis plegius the Cheife pledge and every of them were pledges for another and at this day in some places is called the Tithingman and in Yorke-shire Tenmantale in respect of the other inferior pledges so as the returne of the Constable or the presentment of the Jury doth not make a man a cheife pledge but the times are changed and the true institution of this Court is vanished vide ibidem Bullens case At the common Law upon a Fine the party had a yeare and a day to make his claime but now by the Statute he hath five years and if the disseisor had continued a year and day
place and it is not materiall whether any person be there or not and if one place be as notorious as another the Lessor hath election to demand it at which he will and if the Lessor demand it at a place which is not notorious or at the back doore of the house and in pleading alledge a demand of the rent generally at the house the Lessee may traverse the demand and upon the evidence it shall be found for him for that it was a void demand Ibidem and Coke com 201. and 202. b. a. But if a rent be reserved upon the demise to be payable at a place out of the land he that shall take advantage for non-payment of the rent ought to demand the rent at the place where it is limitted to be paid and therefore the opinion in Kelwellies case Ployd f. 70. that he in the reversion may enter for the non payment of such rent without any demand made was utterly denied by the whole Court Ididem and Coke com 202. a. But if there be no place appointed where the rent is to be paid there the rent is to be tendred on the Land Coke 210. a. b. Because it issueth out of the Land but otherwise it is in such a case of a Feoffment or Mortgage for it is not sufficient for the feoffor to be upon the land there ready to pay the money to the feoffee at the day set but he must seek the feoffee if he be then in another place within the Realme of England and so it is if a man be bound in an obligation of twenty pound upon condition that he pay to the obligee at such a day 10. l. that then c. The obligor ought to seek the obligee if he be in England and at the day appointed tender the ten pound otherwise he shall forfeit the twenty pound Coke com ibidem and therefore as he adviseth it shall be good and a sure way upon such a feoffment or mortgage to appoint a speciall place where the money shall be paid and the more especiall it is the more better it is Coke com f. 211. b. And so is it also upon an obligation Ployd f. 71. a. and b. If the obligee be in his own house and the obligor come to him there and tender the mony he shall not be a trespassor for his comming there for in that by the taking of the obligation the obligee was assenting that the obligor should pay him the ten pound by necessity of reason he ought to be assenting to come to him to offer unto him the 10. l. for to come to his person precedeth the offer which he was assenting to therfore ex consequenti he shall not punish him for that thing to which himselfe was agreeing But if he had entred into the house of another man there he shall be a trespassor to the said man if the same man will take him so vide plura ibid. Kedwellies case Exception Though a common person in reversion cannot enter for non-payment of rent without demand yet if the King make such a Lease for yeares rendring rent with such a condition ut supra the King shall take advantage of the condition without any demand because the law which alwaies observeth decorum and conveniency appointeth the subject to attend upon his soveraigne and in such case to make the first act though it be in case of condition which trencheth upon the destruction of his estate But if the King granteth the reversion over his grantee shall not take advantage of the condition without demand for it is a personall prerogative annexed to the person of the King and not in respect of the nature and quality of the land Coke l. 4. f. 23. A So the King maketh a Lease for yeares rendring a rent payable at his receipt of Westminster and after the King granteth the reversion to another and his heires the grantee shall demand the rent on the Land and not at the Kings receipt at Westminster for though the law without expresse words doth appoint the Lessee in the Kings case to pay it at the Kings receipt yet in case of a subject the law appointeth the demand to be on the land Coke com f. 201. b. and Coke l. 4. f. 72. 73. Burroughs case vide ibidem plura Circumstantia loci est testis veritatis certitudinis Ployd 393. a. The place is materiall and is a circumstance and witnesse of truth and certainty As if a man will plead the Letters Patents of the King bearing date at Westminster and indeed they did beare date at another place it seemes in 38. H. 6. by Choke f. 34. by Littleton f. 36. and by Redsham Moile and Prisot f. 37. That for the variance of the place it failed and the Plea shall be adjudged against him So if the King give authority to one to arraigne one upon indictment taken against him at Dale in such a County when indeed the indictment was taken at another place in the same County he cannot arraigne him for the place declareth the certainty what indictment the King intended for it may be there were two indictments of the same matter and thing and the one of them taken in one Village the other in another and by it the expresment of the Village declared the certainty of it Dier 105. a. An outlawry was reversed because it was ad comitat Lancaster ibidem tent and did not say at Lancaster or such certain place to which ibidem might be referred Ployd f. 191. a. The place must be shewne by the Plaintiff where the things were done because the visne should come thence if the things be traversed as H. 6. E. 4. 11. Brooke lieu 55. The place ought to be shewn in the count in debt upon an obligation where the obligation was made and M. 39. H. 6. 32. Brook lieu 45. If an attornement be alledged the place ought to be pleaded where it was made and in such like things of effect that may be traversed the place ought to be shewne where the thing was done for the certainty of the triall and f. 149. b. the place ought to be shewne where the attornement was made if the attornement bee pleaded 15. H. 7. 24. Coke l. 6. f. 47. Dowdales case when the place is materiall as when it is parcell of the issue there the Jurors cannot find the point in issue in any other place for by especiall pleading the point in issue is restrained to a certaine place but when the place is named onely for conformity and necessity and when it is parcell of the issue as in the case of 10. Eliz. 271. in debt against the heire he pleaded rieâ— by descent generally in that case the Plaintiff cannot reply in such generall manner for then no triall can be had of it but in case for conformity and necessity of a triall he ought to name a certaine place as there he did in the Parish and
hidden to us if the reading of the ancients were more familiar to us As though one peradventure may know the Law upon the ancient statutes yet will he never know the true reason of the interpretation of them if he know not what was the law before the making of them Majorum precepta justa vel injusta non sunt contemnenda Reg. I. C. And Coke l. 7. f. 3. Calvins case Interroga pristinam generationem The precepts of the elders be they just or unjust are not to be contemned and enquire of the former age for out of the old fields must come the new Corne for we are but as yesterday and therefore had need of the wisdome of those which were before us and we had beene ignorant if we had not received light and knowledge from our forefathers and our daies upon the earth are but a shadow in respect of the ancient daies and times past wherein the lawes have beene by the wisdome of the most excellent men in many succession of ages by long and continuall experience fined and refined which by no man being of so short a time although he had in his head the wisdome of all the men in the world in any one age could ever be effected and attained unto and therefore it is the best rule then which there is not one more true and firme Neminem oportet esse sapientiorem legibus no man ought to take upon him to be wiser then the lawes vide ibidem â—lura Monumenta quae nos Recorda vocamus sunt veritatis vetâ—statis vestigia Cok. com f. 117. A record and inrolement are the footsteps of antiquity and truth and is a memoriall and monument of so high a nature as it importeth in it selfe such absolute verity that if it be pleaded There be no such record it shall not receive any triall by witnesse by Jury or otherwise but onely by it selfe And every Court of record is the Kings Court though another may have the profit in which if the judges doe erre a Writ of error lyeth but the county Court the Hundred Court and the Court Baron and the like are no Courts of record and therefore the proceedings there may be denied and râ—ied by Jury and upon a judgement a writ of error lyeth not but a writ of false judgement becauâ—e they are no Court of record for that they can hold no plea of debt or trespass if the dâ—bt or damage amounteth to 40. s or of any trespasse vi armis Coke l. 4. f. 71. in Hindes case Records containe in themselves truth and do conclude all men to deny any apparent thing in the record as antedate c. 37. H. 6. f. 21. but to take averrment of that which standeth with the record and that doth not impugne any thing apparent in the record the law well admitteth and alloweth As against a fine upon release to say that the Connusee had nothing at the time of the fine levyed 16 H. 7. So against letters Patents of the King under the great Seale shewed in Court none can them deny but non concessit per predictas literas patentes he hath not granted by the said Letters Patents is a good Plea for though there be such Letters Patents yet peradventure nothing may passe by them and so by consequence hee hath not granted and though an inrolement or matter of record shall not be tried by the country yet the time when the inrolement was made shall be tried by the country but the inrolement it selfe shall not be drawne in question but onely the time of it as when one pleadeth a grant of the King by his Letters Patents under the great Seal and the other pleadeth non concessit by the same his Letters Patents the Letters Parents are confessed but the effect and operation of them is denied and therefore the triall shall not be where the Letters Patents beare date but where the land lyeth as it was adjudged Coke l. 6. 15. b. So if profession be denied it shall be tried by Court Christian but if the time of his profession be in issue it shall be tried by the Country 9. H. 7. f. 2. ibidem Multitudo errantium non paâ—it errori patrocinium Coke l. f. 94. a. The multitude of them who erre doth not produce a Patronage to the error As returnes and presidents which peradventure passe without challenge of the parties or debate of the Judges thouâ—h they be many if the Court adjudge them contrary to reason they shall be amended and in this case according to 5. E. 4. f. 112. presidents and course doe not rule the law but the law shall rule them and therfore it was there said That an Outlawry was reversed because that it was ad com Lancast ibid. tent and doth not say at Lancaster or such place certain to which ibid. might be referred and though there were 100. presidents of such returnes yet notwithstanding it was reversed A fortiori if there be but one or two presidents for una hiâ—undo non facit ver Dier 105. a. but otherwise it is when presidents are judiciall and Justices by diverse successions of ages have given judgements in Actions brought there for it shall bee intended that some of the counsell with the Defendant or some of the Justices before whom the action was tried and the record read would have excepted against it but returnes of Sheriffs in case of Outlawries or entries of Clarkes the records passe in silence without exception of parties and therefore are not so authenticall as judgements upon demurrers or verdicts Coke l. 4. f. 94. a. And whereas the latter judgements doe many times crosse and contradict the former there are very few presidents of such contrary judgements scarce two in an age But yet if the reasons of the latter judgement did appeare upon record we should find them grounded upon mischiefs and inconveniences arising since the former judgements or other waighty considerations respecting the good of the Common-weale in generall Sir John Davis in his Preface From Propositions A Proposition is an oration affirming or denying aliquid de aliquo something of something and is called of the Philosopher 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a pronouncing speech shewing the thing either to be true or false Negativum nihil implicat 11. H. 7. 23. Dod. E. L f. 111. There are propositions negative which imply an affirmation and those we call negative pregnants which we doe refuse in all issues of trialls by Jurors except in some cases where the necessity of the cause doth require the same and there are also propositions meerely negative which are meere negations of which we commonly say negativum nihil implicat a negative implieth nothing As the Tenant wageth law of non Summons this doth not imply that he was tenant neither shall conclude him 22. H. 6. 41. One pleadeth ne Chasa pas he did not hunt in the free Chase of the Plaintiff this is no granting that the
Plaintiff had a free Chase but he must prove it 10. E. 3. 20. Affirmativum negativum implicat Ployd f. 206. b. An affirmative includeth a negative for every statute limiting any thing to be in one forme although it be spoken in the affirmative yet it includeth in it selfe a negative as the statute of W. 2. c. 4. Of a quod ei deforceat giveth that the demandant shall vouch ac si tenens esset in priori bâ—eve includeth a negative to wit and not otherwise for it hath been taken since it that if the first writ was a Sciâ—e facias and the tenant in the Quod ei de forceat mainteineth the title of it the demandant shall not vouch for he shall vouch ac si tenens esset in priori breve which is as much as to say that he shall vouch ac si tenens esset in priore breve and in no other manner and then in the first writ it being a Scire facias he cannot vouch no more then now So the statute of W. 2. c. 11. Provideth that upon an account ended before auditors assigned and arrearages found upon the accountants they have power to send and deliver their bodies to the next Goale of the Lord the King in those parts and upon it is taken 27. H. 6. f. 8. That the auditor ought to commit him to the next Goale though it be in another County for they cannot vary from the place limited by the statute and is as much as if be had said and in no other Goale So the statute of W. 2. c. 3. giveth a Writ of second deliverance out of the Court where the first replevin was granted and a man cannot have it any where else for where the statute appointeth the place order and forme of suits then they cannot sue in any other place or any other forme if they should it shall be contrary to the purview of the statute So if tenant in taile make a feoffment to himself for life and after to the use of his issue in taile and dieth since the statute of 27. H. 8. The issue in taile shall not be remitted for the statute executed the possession in the same manner and forme as he had the use which is all one as if he should say and in no other manner and form and he had the use as a Purchaser and so he shall have the land here and not be remitted 2. M. 1. ante 114. vide ibidem plura From Division DIvisio est oratio qua totum in partes distinguiâ—ur a division is an oration by which the whole is divided into parts Argumentum a divisione est fortissimum Coke l. 6. f. 60. a. An Argument drawne from division is most strong as there are four sorts of commons common appendant common appurtenant in grosse and by reason of Vicinage but common residentiae commorationis of residence and dwelling is none of them therefore no common Res per divisionem melius aperiuntur Eract And the Civilians per divisionem melius materia intelligit by division things are more cleerely opened and by it the matter is the better undestood and therefore saith Plato speaking in the person of Socrates Si nactus fuisset autem qui bene partiri sciat se iâ—sias tanquam Dei vestigia consâ—cuturum esse if he had obtained a leader who knew well to divide he had followed him as the footsteps of God for by division the Clouds of confusion are cleered and the distinct and true nature of the thing manifested and as Lodovicus all falsehood proceedeth from conformation when through rudenesse we know not how to discerne confused things so as we are deceived with the like or things neare unto them Quae in partes dividi nequeunt solida a singulis praestant Coke l 6. f. 1. Those things which cannot be devided into parts ought wholly to be performed of every one As Lord and Tenant of three Acres of Lands by homage fealty and annuall service of a Spurrier and suit of Court if the Lord maketh a Feoffment in fee or one Acre the feoffee shall hold by homage fealty a spurrier and suit of Court by the common Law for those things which cannot bee devided shall entirely be perâ—ormed by every single person vide ibidem plura of which neverthelesse some certain ones are appointed by the statute to avoid trouble to bee performed by the eldest coheire for â—hâ— rest as homage Dod. 104. En. L. If an Ox be devised to one and the Ox dyeth without any default of the Executor whether is the Skin oâ— Hide of the Ox due to the Executor or the Devisee by the common Law the Devisee shall have the hide for it is parcell of the Ox and the Ox was an entire thing and cannot be divided but by the civill law the executor shall have it because the Ox did perish and was no Ox before the Skin was taken off but the skin was taken off from the Carcasse Fulb. 1. f. 45. b. Frustra sit per plura quod fieri potest per pauciâ—ro 9. H. 7. 24. Coke l. 8. f. 167. a. Division is a resolution of the whole into parts and ought to consist of as few parts as may be for it is vaine to doe that by more may be effected by fewer and therefore the Peripatericks approve a dicotomy or a two fold division non 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not that we should be restrained to make a division alwaies of two parts but that we may divide it into as many as the nature of the thing râ—quireth As Littleton divided rents into rent charge rent-service and rent-seck and very well because it was according to the severall nature of rents and so also did he divide warranties into lineal collaterall and comminenting by disseâ—sin so are actions devided into reall personall and mixt and also the division of fewer parts or more is to be admitted if the nature of the thing so devided doth requiâ—e it therfore were the Ramists so curious in their strict observing of a Dicotomy Coke l. 6. 167. a. If the King by his Patent reciting the estate taile doth grant the reversion and further granteth the lands in possession those severall grants in one Patent are as good and strong in law as if the King by one patent had recited the estate taile and granted the reversion and by another Patent had granted the Lands inpossession for vainly that is done by more which may be done by fewer Ploâ—d f. 191. b. If I release all the right I have in all my Lands in Dale which I have by descent of part of my father and I have no Lands dy descent of part of my father the release is void for he must aver that I had such Lands in Dale by descent of the part of my father But if the release had beene in white Acre of D. which I had by descent of part of my father and I haee no lands by descent of
husbands because it is possible for the husband to have got it and whose soever the Cow is his is the Calfe also Swinwood f. 18. And if the issue be borne within a month or day after marriage between parties of a full lawfull age the child is legitimate Coke Com. f. 244. a. And in the legall understanding of the common Law he is said to be haeres who is ex justis nuptijs procreatus borne of lawful matrimony haeres legitimus est quem nuptiae demonstrant and he is a lawfull heire whom marriage demonstrated so to be Coke ibidem f. 7. b. Coke l. 7. f. 44. a. One who is engendred in avowtry during the coverture is a mulier by the temporall and common Law though a bastard by the spirituall Law Jus sanguinis quod in legitimis successionibus spectatur ipso nativitatis tempore quaesitum est Reg. I. C. The right of blood which is regarded in lawfull successions or inheritances is found in the very time of the nativity and therefore jus primogeniturae the tight of the elder Brother-ship in the cause of inheritance is principally to be respected because it is in the eldest Son and his issue per modum substantiae and that which is in any person per modum substantiae is inseperable from him and cannot be extended to any other besides it is against the Laws of proximity of degrees that those which are in a remote degree should be preferred before those of the next degree and therefore in all common weales for the most part proximity of blood hath been preferred of which we have a notable example confirmed by the act of Lycurgus the judicious Law-giver as when Eunonus King of the Lacedaenonians had two Sons Polydectes the elder and Lycurgus the younger and Polydectes deceased leaving no Son living at the time of his death the Scepter of the Kingdome was seated in the hands of Lycurgus afterwards when Polydectes Widdow had brought forth a Son Lycurgus did willingly and peaceably yeeld to him the Scepter which act of Lycurgus agreeth fully with our Laws whereby it is ruled that if a man have a Son and Daughter and the Son purchaseth Land and dyeth the Daughter entreth and after the Father begetteth another Son of the same Wife this Son shall have the Land 19. H. 6. b and is also ratified by diverse examples in the successions of our Kings I will instance onely in one and the most illustrious one King Edward the third being deceased Richard the second the Son of his eldest Son obtained the Kingdome and was preferred before John Edmund and Thomas the sons of the same King wheras any of them was more worthy and fit for the Scepter yet is it granted that in succession of regall dignity jus primogeniturae is not constantly observed because in that case the good of the common-weale and commodity of the people is politically to be respected and as the Civilians the good estate of the Kingdome and Subjects is more to be heeded quam sangninis series then the pedigree of blood and so Solomon the younger Brother was advanced before the elder by the hand of David his Father and Roboam preferred Abias his younger Son yet this must be done cautiously and with a good conscience and intention and probably for the utility of the State otherwise it will neither please God nor man yet in the disposing of private estates the Law of Primogeniture is more strictly to be observed because by it confusion and dissention is avoyded which from the contrary doth proceed as is intimated by Coke l. 3. f. 40. b. Wherein our Law excelleth which preferreth the elder Brother and his issue before the younger Brother and his issue in case of descent and that jure sanguinis by his birth right as he is most worthy of blood and therefore as Coke in his com f. 14. a. The male and all descendant from him shall inherit before the female and among the males the eldest Brother and his posterity shall inherit Lands in Fee-simple as heire before any younger Brother or any descending from him whereas by the Civill Law the inheritance is divided among the males Lutleton l. 1. c. 1. There be three Brothers and the middle Brother purchaseth Lands in Fee simple and dyeth without issue the elder Brother shall have the Land by descent so also it is if the youngest purchaseth Lands in Fee and dyeth without issue the eldest shall have it jure sanguinis because he is the worthiest of blood Little So if a man enfeoffe another upon condition and the condition is broken and then the Feoffor dyeth without issue his wife privement ensaint and the Brother of the Feoffor enter for the condition broken and after a Son is borne he shall avoid the possession of the Uncle and may lawfully claime the inheritance 9. H. 7. 25. And 9. H. 8. 23. It is said that after two or more descents the heire afterwards born claiming by descent may enter into Land but he shall not have a Writ of account for the meane profits And though Littleton in defence of the custome of Gavelkind by which the issues may equally inherit alledgeth the reason that every Son is as great a Gentleman as the eldest Son is yet as Sr. Edward Coke com a. f. 14. saith Gentry and arms doth not descend to all the brethren alike for the eldest jure primogeniturae shall beare as a badg of his birth-right his Fathers armes without any difference because he is more worthy of blood but all the younger brethren shall give severall differences additio probat minoritatem and the addition demonstrateth and proveth the minority of the issue but by the Statute of 31. H. 8. A great part of Rent is made descendible to the eldest Son according to the course of the common Law for that by the meanes of that custome diverse antient and great families after a few descents came to very little or nothing according to the simile of the Poet In plures quoties rivos deducitur amnis Fit minor ac unda deficiente perit A Flood deduced into little streames Coke ibid. Soone groweth lesse and falleth by that meanes But in cases of purchase it is otherwise a. 15. E. 4. If a man devise land to a man and his heire and the devisee dieth having issue a daughter his wife privement enseint with a son who is afterwards borne the daughter shall enjoy the Land in perpetuum And 9. H. 6. 23. It is said that if the remainder cannot vest at any time when it falleth it shall not vest in him is borne afterwards where another hath entred before 2. Eliz. 190. Pl. 18. If a lease for life be made the remainder to the right heires of I. S. and I. S. is then alive the inheritance passeth presently out of the Lessor but cannot vest in the heire of I. S. for then living his father he is not in rerum natura for non
est haeres viventis and the remainder is onely good upon this contingent if I. S. dieth during the life of the lessor Coke com f. 378. a. But if lands be given to A. and B. so long as they joyntly together live the remainder to the right heires of him which dieth first and warranteth the land in forma praedicta A. dieth his heire shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heire of A. have the land by descent vide ibidem 378. b. Justum non est aliquem ante natum mortuum facere Bastardum qui toto tempore suo pro legitimo habebatur Coke l. 8. f. 101. a. b. It is not just to make any one a Bastard borne before marriage being dead who all his life time was accounted legitimate For by the law of England if such a Bastard which the law termeth Bastard eigne doth continue possession in peace that is if the mulier make no entry for the Bastard eigne or continuall claime and so dieth in peace his issue is become right heire and will bar the mulier because he was legitimate by the lawes of the holy Church For though the subsequent marriage doth not make a Bastard legitimate quoad consuetudinem regni as â—ract phraseth it in regard of the custome of the Realme yet quoad sacerdotium in respect of the Canon law it doth and in this case of legitimation which in law is so precious and of so great estimation the law respecteth neither infancy or other defects in the mulier but preferreth legitimation of blood before any benefit of temporall inheritance and therfore the law saith that by the death of Bastard eigne in peace his issue is become right heire and by consequence the mulier is barred and the descent doth not onely take away the entry but the right also and therefore descent in this case shall be a bar to right as descent of services rents reversions expectant upon an estate taile shall bar the right of the mulier 14. E. 2. Bastardy 26. but not the entry or claime of the disseisee But if a Bastard eigne dieth without issue so as the land doth descend the mulier shall have it ibidem and if the Lord by escheat entreth this shall not bar the mulier because no descent Coke com 244. If there be Bastard eigne and mulier puisne and the father maketh lease for life reserving rent and the bastard eigne receiveth the rent and dieth having issue this shall barr the mulier Coke com f. 15. a. If a man hath issue a son being a Bastard eigne and a daughter and the daughter is married the father dieth and the son entreth and dieth seised this shall barre the feme covert and the descent in this case of services rents reversions expectant upon estate or for life whereupon rents are reserved c. shall bind the right of the mulier but the descent of these shall not bind them that right have to an Action Coke com f. 244. a. So if the Bastard dieth seised and his issue endoweth the wife of the Bastard the mulier cannot enter upon tenant in dower for his right was barred by the descent ibidem If the Bastard eigne entreth into land and hath issue and entreth into religion this descent shall bar the right of the mulier ibidem If a man hath issue two daughters the eldest being Bastard eigne and they enter and occupy peaceably as heires the law shall not adjudge the whole possession in the mulier so as if the Bastard had issue and died her issue shall inherit and if they make partition that partition shall binde the issue for ever Coke com 244. a. b. And such a Bastard being impleaded or vouched shall have his age If a man hath issue a Bastard eigne or mulier puisne and the Bastard in the life of the father hath issue and dieth and then the father dieth seised and the son of the Bastard entreth as heire to his Grand-father and dieth seised this descent shall bind the mulier ibidem b. If the Bastard enter and the mulier dyeth his wife being privement with a Son and the Bastard hath issue and dyeth seised the Son is borne his right is bound for ever but if the Bastard dyeth seised his wife enseint with a Son the mulier entreth and the Son is borne the issue of the Bastard is barred ibidem 244. a. If the bastard eigne entreth and the King seiseth the Land for some contempt committed by the Bastard for which the King receiveth the profits of the Land and the Bastard dyeth and his issue upon petition is restored to the possession the mulier barred for ever But when the King seiseth for a contempt of the Father c. if the issue of the Bastard eigne upon petition be restored for that the seisure was without cause the mulier is not barred for the Bastard could never enter but the possession of the King in that case shall be adjudged in the right of the mulier Coke ibidem f. 245. b. Bastardus nullius est filius Littleton Coke com f. 203. a. aut filius populi Coke l. 6. f. 6. A bastard is the Son of none or the Son of the people according to the common report Cui pater est populus pater est fibi nullus omnis Cui pater est populus non habet ille patrem To whom the people Father is to him is Father none and all To whom the people Father is well Fatherlesse we may him call For as the civilians pater est quem nuptiae demonstrant he is a Father whom the espousalls and nuptialls shew so to be And therefore if a wife have a bastard it shall not be a villaine or if a villaine have a bastard by a woman and marrieth her the bastard is no villaine because he is nullius filius though some hold the contrary as Bracton and Britton for in both cases the issue at the common Law is a bastard quasi nullius filius Coke com f. 123. a. And though a bastard be a reputed Son yet is he not such a Son in consideration whereof an use may be raised because in judgement of Law he is nullius filius Dyer 374. And for the same reason where the Statute of 32. H. 8. of wills speaketh of children bastard children are not within that statute and a bastard of a woman is no child within that Statute where the mother conveyeth Lands unto him Dyer 313. Qui ex damnato coitu oriuntur inter filios non computantur Coke com f. 3. b. Who are borne of condemned or unlawfull copulation are not to be reckoned among children as a man maketh a lease to B. for life the remainder to the issue male of B. and the heires males of his body B. hath issue a bastard Son he shall not take the remainder because
and a Law was that thereby there might be certainty of titles and a peaceable possession without contradiction and as a Civilian saith ut sit finis litium that there might be an end of suits and therefore were the Statutes of limitation made within which the demandant that bringeth the action must prove himselfe or some of his Ancestors to be seised and in antient time the limitation in a Writ of right was from the time of H. 1. after that by the Statute of Merton the limitation was from the time of Henry the second and by the Statute of Westminster the first the limitation was from the time of Richard the first but because that limitation of the writ of right was for so long time passed the limitation of a writ of right was changed by the Statute of 32. H. 8. and reduced to threescore years next before the Teste of the Writ and so of other actions Coke com f. 115. a. vide ibidem plura And afterwards another Act was made 21. Jacob. that for the avoiding of suits all writs of Formedon in Descender Formedon in Remainder and Formedon in Reverter for any Mannors c. shall be sued and taken within twenty years and that after the twenty years expired none such or any of their heires shall have any such writ and that no person that hath right or title of entry into any Mannors c. shall thereunto enter but within twenty years vide ibidem cap. 6. plura But it is to be observed that time of limitation is twofold first in writs that is by diverse acts of Parliament the second is to make a title of inheritance and that is as hath been said to pleade a prescription de tempore cujus contrarium memoria hominum non existit Coke com f. 14. 15. which is by the common Law And this also accordeth with the rule of Bracton Longa possessio sicut jus parit jus possidendi tollit actionem a vero domino l. 2. f. 52. Long possession as right begetteth a right and taketh away an action from the true Lord and owner And so in antient times if the disseisor had been long in possession the Disseisee could not have entred upon him neither could the Disseisee have entred upon the Feoffee of the Disseisor if he had continued a yeare and a day in quiet possession and though the Law be now changed yet at this day the Disseisor dying seised being an act in Law barreth the disseisee of his entrance upon the heire and for that many advantages follow the possession and tenant the law taketh away the entry of him that would not enter upon the Ancestor who is presumed to know his title and driveth him to his Action against the heire that may be ignorant thereof Coke com f. 237. b. And for the above said reason the law yieldeth diverse utilities and advantages to the possessor for it is better to be a possessor then to complaine of others who are possessors because it imposeth the burden of proving on the Plaintiff so as if he can prove nothing he which possesseth shall be acquitted neither can possession be avoided but by possession Ployd 137 b. As if I make a lease for years of the lands of my wife and die the lease is not void before entry made by the wife for possession must be avoided by possession and such possession must be gained by entry But if my father die and his land descend to me a Lease for yeares made before my entry is good because I have possession in law and none hath possession in deed but if a stranger abate a lease made by me after is void for the stranger hath possession indeed before my entry upon him Ployd ibid. If an Executor bring an Action of trespasse for goods taken out of his possession it is not needfull to shew the Testament but if hee not ever was possessed of them but doth demand the thing then hee ought to have shewn the testament Ployd f. 46. a. And regularly it holdeth true that when the naked right of Land is released to one that hath jus possessionis and the other by a meane title recovereth the land from him the right in possession shall draw the naked right with it and shall not leave a right in him to whom the release is made as if the heire of the disseisor being in by descent is disseised by A. and the disseisee release to A. now hath A. the meere right to the land but if the heire of the disseisor enter into the Land and regaineth possession that shall draw with it the meere right to the land and shall not regaine the possession onely and leave the meere right in A. but the recontinuance of the possession the meere right is therewith vested in the heire of the disseisor Coke com 266. a. If a woman possessed of a terme for yeares take an husband and the wife dieth though during the life of the wife the terme was not devested out of the wife yet by her death it is vested in the husband and it is given to him by Act in law because it is a thing in possession and not in Action Pl f. 192. b. In pari causa possessor potior haberi debet Reg. I. C. In aequali jure â—elior est conditio possidentis Coke l. 4. f. 90. a As the Lord who is allowed but three Chaplaines retaineth six by his letters testimoniall at one and the same time and all the six are prefeâ—red to six severall plurallities the three which are first promoted are warranted by the statutes and yet the retainer was not according to the statute for in aequali jure melior est conditio possidentis In equall right better is the condition of him who is in possession ibidem If a man purchaseth severall lands at one time which are holden of several Lords by Knights service and dieth the Lord who first seiseth the ward shall have him because they are in aequali jure and there is no priority betweene them which if there were the elder Lord shall have him Perk. f. 6. If ten Mannors be conveyed to two severall persons by one deed which of them happeneth to get the Deed first may detaine it Two Attorneys are retained conjunctim divisim joyntly and severally the plea of him that first pleadeth shall stand because they are in aequali jure to plead If there be two joynt-tenants and one of them taketh all the profits of the land or all the rent the other hath no remedy Coke l. 2. f. 68. a. So the release of all Actions personall by one barreth the other but otherwise it is if the personalty be mixed with the realty and if there be two joynt-tenants Lords and the tenant holdeth by Knights service and the tenant dieth his heire within age and one Lord seiseth the Ward and the other distraineth for the services he that first seiseth or distraineth shall bind the other And
enrolled enfeoff the King without any consideration the King shall be seised to his owne use as having such prerogative in his person that he shall not be seised to the use of any other 28. H. 8. 7. Dier Bokenghams case by Knightley Cok l. 2. f. 71. b. It is not unjust but equall that the bargain or shall annex such a condition to the State of the land as he pleaseth for cujus est dare ejus est disponere he that hath power to give hath power to dispose ibidem Coke l. 7. f. 6. Calvins case The King by his letters patents or the Parliament by thier votes may grant denizations without limitations or restraint or else limited denizations as to an alien and the heires males of his body 9. E. 4. f. 7. in Bagots case or to an alien for terme of life as to John Fenell 11. H. 6. 3. Or else upon condition whereof I have seen diverse presidents for who hath power to give hath power to dispose ibid. Modus dat domationi Fleta Ployd f. 25. a. The mannor of the gift which the donor limiteth maketh a law to the donee for though in the preamble of the Act of W. 2. there be but three estates limited to wit especiall taile franke-marriage and generall taile yet may the donor make other tailes by his limitation for his will is a law as to the taile and so heires males of the body of the donee and taile to the heires females of the body of the Donee and all other tailes are within the purview of the Act for the will of the donor is the effect of the stature and from it it followeth that the alienation of the donee shall not bind the issues nor the donor And the second wife shall not be endowed neither can the donee charge the land with a rent-charge or other encumbrance neither shall the land be forfeited for felony and all these are included in the first purview to wit that the will of the donor shall be observed and are but consequences and explanations of the first purview vide ibidem plura But if a gift bee repugnant or contrary to law Exception as a gift made upon a condition unlawfull or impossible it is void and of no effect to gain any thing by the making of it in our law As if the condition be to kill a man Ployd f. 34. b. Or if an obligation be made to save one harmeless for killing a man Ibid. f 64. b. these conditions are void So a feoffment made that the feoffee shall not alien the land is void because it is contrary to law for by the law tenant in fee-simple hath power to alien to any man for if such a condition should be good then the condition should oust him of all the power that the law hath given him which is contrary to reason Littleton The like law is upon a devise in fee upon condition that the devisee shall not alien the condition is void And so it is of a grant release or confirmation or any other conveyance whereby a fee-simple doth pass for it is absurd and repugnant to reason that he that hath no possibility to have the land revert to him should restrain his feoffee in fee-simple of all his power to alien And so it is if a man be possessed of a lease for yeares or of an horse or of any other Chattells reall or personall or give or sell his whole interest or property therein upon condition that the Donee or Vendee shall not alien the same the same is void because his whole interest and property is out of him so as hee hath no possibility of a reverter and it is against trade and traffick and bargaining and contracting betweene man and man and against reason that he should oust him of all power given him for regulariter non valei pactum de re mea non alienda a contract or condition that I shall not alien that which is my owne doth not hold and suiquum est liberis hominibus non esse liberam rerum suarum alienationem it is unjust that freemen should not have liberty to alien their owne estates But these are to be understood of conditions annexed to the grant or sale it selfe in respect of the repugnancy and not to any other collaterall thing Coke com f. 223. a. But before the statute of quia emptores terrarum A man might have made a feoffment in fee and added further that if he and his heires did alien without licence that he should pay a fine it had beene good then and then the Lord also might have restrained the alienation of the tenant by condition because the Lord had a possibility of reverter and so it is in the Kings case at this day because he may reserve a tenure to himselfe If A. be seised of black Acre in fee and B. enfeoffeth him of white Acre upon condition that A. shall not alien black Acre the condition is good for the condition is annexed to other land and ousteth not the feoffee of his power to alien the land whereof the feoffment is made and so no repugnancy to the State passed by the feoffment and so it is of gifts or sales of Chattels realls or personalls Coke ibidem But if a feoffment be made upon condition that the feoffee shall not infeoff I. S. c. This is good for he doth not restrain the feoffee of all his power and in this case if the feoffee infeoff I. N. of intent and purpose that he shall infeoff I. S. some hold that this is a breach of the condition for Quando aliquid prohibetur fieri ex directo prohibetur per obliquum for when any thing is forbidden to be done directly it is also forbidden to be done collaterally or obliquely Coke ibidem b. And a gift in taile that is made upon condition that the donee nor his heires shall not alien in fee in taile or for terme of anothers life is good to all those alienations which amount to any discontinuance of the estate taile or is against the statute of W. 2. but as to a recovery the condition is void for that is no discontinuance nor against the said statute Neither is a collaterall warranty or lineall with assets in respect of the recompence restrained by the said statute no more then a common recovery is in respect of the intended recompence Ibidem If a man make a feoffment to Baron and feme in fee upon condition they shall not alien this is good to restraine them by feoffment or alienation by deed because it is tortious but to restraine their alienation by fine is repugnant void because lawfull ibidem Voluntas reputabitur pro facto Bract. the will shall be esteemed for the deed If no place be limited where money is to be paid in the condition of a Bond and the Obligor at or after the day of payment happen in the company of the obligee and offereth
one may come to that and therefore Hill 37. H. 8. in the Star Chamber a Priest was branded with an P. and A. in the forehead and put upon the Pillory with a paper written for false accusation vide ibidem pluâ—a Volenti neque injuriam neque vim fieri Reg. I. C. Volenti non fit injuria f. 501. No injury can be done to a willing man If a Parson Emparsonee present another by it he hath disappropriated the advowson and maketh it presentable by his owne Act and therefore no injury A man shooteth giving warning to all and one will goe to the marke and is hurt he is without remedy 18. E. 4. 8. If I am bound to make an house if you prohibit me to come upon the land I may plead this bar 19. E. 4. 2. If there be Lord Mesne and Tenant and the King being Lord the mesne holdeth of the King in capite and the tenant holdeth of him in Socage if the tenant get a release of the meane or fore-judge the meane he shall now hold in capite for volenti non fit injuria and it shall be injurious to the King if he should lose his tenure in capite and should have in place of it a tenure in Socage Dav. 12. P. f. 67. a. If I exchange land with one hath a bad title which is knowne to me and if I know of a fraudulent conveyance and buy the Lands in both those cases the party shall have remedy though they be willing to the wrong Omne actum ab agentis intentione est judicandum Reg. I. C. Coke com f. 49. Affectio tua nomen imponit operi tuo every act is to be judged from the intention of the agent and every affection or intention giveth the name to thy work As if a man letteth lands c. for terme of yeares the remainder over to another for life in taile or in fee if the termor enter before Livery of Seisin made to him then the frank-tenement and the reversion is in the Lessor but if the Lessor and the Lessee come upon the ground of purpose for the lessor to make or the lessee to take livery the entry vesteth no actuall possession in him till livery be made because the purpose and intention giveth the name to the work and therefore if it be agreed between the disseisor and the disseisee that the disseisee shall release all his right upon the land this is a good release and the entry of the disseisee being for this purpose did not avoid the disseisin for his intent in this case did guide his entry to a speciall purpose Val. 19. Eliz. l. B. Coke ibidem The intention and agreement of the mindes of the parties is the onely thing that the law respecteth in contracts and such words as bewray the assent of the parties and have substance in them are sufficient Ployd f. 141. As if one make an obligation and the obligation is endorsed that the obligee doth will and grant that if the obligor shall stand to the arbitrement ordination and judgement of A. and B. that then the obligation shall be void there an exception was taken to the condition for that the words are the words of the obligee and not of the obligor but it was holden by the better opinion that the condition was good for there is sufficient substance of a condition and the intent of the parties appeareth and yet the words are not usuall for conditions for the words of the condition are the words of the obligors 21. H. 6. f. 55. So a grant of an annuity to one pro consilio impendendo is a grant conditionall for if he will not give counsell the annuity shall cease and yet there is not one word of a condition So T. 9. E. 4. f. 19. 22. where debate was for tithes betweene a Prior and another and the composition betweene them was that the Prior should have the tythes without challenge or contradiction of the other and the Prior granted to the other forty shillings yearly and by the better opinion the grant shal enure conditionally so as if the other disturbe the Prior in receiving his tithes the forty shillings shall cease If one make a Lease for yeares by deed and by the same deed covenanteth that the Lessee shall nor be impeached of wast that word Covenant made at the same time amounteth to as much as if he had said Habendum for years without impeachment of wast P. 21. H. 6. f. 7. I. S. did bind himselfe in an obligation of twenty pound and the obligation was Noverint universi per presentes me I. S. teneri obligari W. B. in twenty pound solvendum eidem I. c. and yet the obligation good and the Court held that the Count shall be made solvendum to the Plaintiff for the interest of the parties there appeareth and the certainty of the bond before shall not be taken away by the Solvendum after M. 4. E. 4. f. 23. So if one have a remainder of land in him and he granteth it to another by the name of a reversion of land that shall be a good grant for there the certainty of the land appeareth and then notwithstanding the mis-terming of the thing the law regardeth the intention of the parties and doth judge according to it So if I be bound to pay you at the feast of Saint Michael which shall be in the yeare of our Lord 1555. 20 s. And at the same feast of Saint Michael then next ensuing other 20 s. The law will adjudge the same feast to have the meaning of such or the like feast for it cannot be the same feast if it come after it so the law will take one word for another to supply the intent of the parties vide ibid. Ployd 141 b. Brownings case Carta non est nisi vestimentum donationis Bract. and the intent directeth gifts rather then the words Ployd 160. b. As if a receivor be bound in an obligation to his master to pay to him omnia recepta recipienda all things received and to be received in his office that by it he is not bound to pay all that he might receive but onely that which he shall receive indeed and so his intent shall rather be taken then the word H. 41. E. 3. f. 6. So where a man maketh a Lease of an house so as the lessee may make his profit of the houses within he cannot pull downe the houses or make wast of them for the intent was not such although the words seeme otherwise T. 9. E. 4. f. 22. And it was said to follow the words was summum jus and that Judges ought not to doe it but to follow the intent rather and Ployd f. 161. b. saith that such was the opinion of Bradwell in 14. H. 8. f. 22. That contracts shall be as it is concluded and agreed betweene the parties and as their intents may be taken and that cavillation with
not though a deed without an inrolement may pass the reversion but it was meant they should pass together if one disseise another of two Acres in Dale and the disseisee release to the Disseisor all his right in all his Lands in Dale and delivereth the release as an escrow to be delivered to the disseisor as his deed before the second of May and before that day the disseisor disseiseth him of another Acre in D. and then the releafe is delivered unto him the second day of May the right to the third Acre shall not pass because it was not his intent to release it Ployd One reciting by his Deed that whereas by prescription he hath used to finde a Chaplaine because some controversie hath growne of it granteth by the same deed to doe it this determineth not the prescription for the intent of the Deed reciting the prescription was to confirme it and not make a new grant 21. H. 7. 6. Though it be a generall rule that the words which the common people use to expresse their intent ought to be taken according to the intent and not according to the very definition in Hills and Granges case f. 170. And that generalis regula generaliter est intelligenda yet this rule is principally to be observed in cases of uses which were onely trusts and confidences between man and man Coke l. 6. f. 64. vide ibidem plura in Sir Moile Finches case And Coke l. 1. f. 100. Shelleys case we finde in diverse cases of our Books that the intention of parties is the direction of uses by a conscionable and benigne construction as if a man seised of Lands of the part of his mother maketh a feoffment in fee reserving a rent to him and his heirs by the common Law the rent shall goe to the heir of the part of the father Lit. But if a man be seised of lands of the part of the mother and maketh a Feoffment in fee to the use of him and his Heirs such use shall not goe to the heire at the common Law but in regard the Land moved from the part of the mother therfore in equity the use which is nothing else but a trust and confidence shall also goe to the heirs of the part of the mother 5. E. 4. f. 4. And though Littleton saith that a man in a Feoffment and grant shall not have a Fee-simple without these words Heirs yet if a man before the Statute of 27. H. 8. had bargained and sold his Land for mony without these words heires the bargainee had a Fee-simple because at the common Law nothing passed from the bargainer but an use which is guided by the intention of the parties which was to convey Land wholly to the bargainee for that the Law intendeth that the bargainee paid the true value of the Land for it is in equity and according to the intent of the parties the bargainee had a Fee-simple without these words heires 27. H. 8. f. 5. Coke ibidem And as Ployd f. 345. a. A fortiori the intent saith he shall be observed in wills where the words cannot be performed for Testamentum est testatio mentis but that which is other then the intention is not the testation of the minde and therefore as he saith also f. 54. b. It is the office of Judges to marshall the words of wills according to the intentions of the parties for the most part of them are made in extremity and when there is no counsell of Law ready or present and the testators themselves are not for the most part learned in the Law and are accounted inopes consilij neither have they knowledge to put words in good order and therefore the ignorance and simplicity of those which make their wills require a favorable interpretation of the words of the will according to the intent As Lands were devised to one for life the remainder for life the remainder Ecclesiae sancti Audreae in Holborne and since the death of tenants for life the Parson of the said Church sued an ex gravi querela and it was pleaded in Judgement that the remainder took no effect because the Church was not a Parson capable and upon that was a demurrer and adjudged that the devise was good and that the Parson shall have execution and yet the Parson was not named in the devise but was comprehended in it Pas 21. R. 2. If a man devise the Mannor of D. and had nothing in it at the time of making the will and that since he purchased it it shall passe by the devise for it shall be taken his intention was to purchase it and if it should not passe the will should be void to all intents Ployd f. 344. a. So if one devise Land to the wife of I. S. and I. S. dyeth and shee taketh to husband another and after the devisor dyeth shee shall have the Land and yet shee was not the wife of I. S. when the devisor dyed nor shall not take it as his wife but the intent was that shee that was the wife of I. S. at the time of the making of the Will shall have it And if a man devise Lands to Alexander Nowell Deane of Pauls and to the Chapter there and their Successors and Alexander Nowell dyeth and a new Deane is made and then the devisor dyeth the land shall vest in the new Deane and Chapter and yet it vesteth not according to the words but according to the intent for the cheife intent was to convey it unto the Deane and the Chapter and their Successors for ever and the singular person of Alexander Nowell was not the principall cause but by chance was one of the causes Ployd 344. b. If one devise by will in writing Land to one and his Heirs and then in another clause after he deviseth out of that Land a rent-charge to him and his heirs it shall be good to the one for the rent and to the other for the Land and the rent in construction of Law shall be taken to be first devised although it be last in words and so one part shall stand with the other and good sence shall be made and the intent of the testator shall be observed in both Ployd f. 541. contrary to the rule of the civill Law ubi pugnantia inter se in testamento jubentur neutrum ratum est If in the Premisses of a will one deviseth Lands to one in fee and in the end of the will he deviseth it to another in fee the latter part shall confound the former because he had last such an intent and as the last will shall repeale the former will by the same reason the last part of the will shall repeale the former part of the will which is contrary to it ibidem vide plura in Paramors case Bendloes Rep. f. 209. B. Being sick sent for a Councellor and desired him to write his last will and testament of his Lands and declared unto
Coke com f. 25. a. A devise cannot direct an inheritance to descend contrary to the rules of the Common Law as if a man devise Lands to one and the heires males of his body and hath issue a Daughter who hath issue a Son the Son shall not inherit as heire male because he must convey the descent from the heires males for though a devise may create an inheritance by other words then a gift can yet can it not direct an inheritance to descend contrary to the rule of Law and no intent of the devisor appeareth that the Son of the Daughter should against the rule of the Law inherit vide Ployd f. 414. b. So if a gift be made to a man and the heirs females of his hody and hath issue a Son who hath issue a Daughter this Daughter shall never inherit vide ibidem plura Prâ—ximus sum egomet mihi Ployd f. 545 a. It is the naturall order to karve himselfe before he karve another and charity beginneth at home And therefore in legacies it is reason that the Executors shall have preferment of satisfaction before others and the Law maketh allowance to them before any others because as Lit. faith they represent the person of the Testator and Coke com f. 209. b. The Executors doe more represent the person of the Testator then the heire doth to the Ancestor for though the Executor be not named in Mortgage yet the Law appointeth him to receive the mony but so doth not the Law appoint the heire to receive the mony unlesse he be named and therefore if the Obligee maketh the Obligor his Executor it is a release in Law and if the Obligor make the Obligee his Executor the Action is gone for they are as it were the same person in law whence the law maketh allowance to them before any other For if a man devise to A. 20 l. and to B. 20 l. and to C. 20 l. and maketh his executor and dieth having goods only to the value of 20 l. now it is in the election of the executor to which of those three he will pay the 20 l. and if he pay it to one the other cannot contradict it neither hath he any remedy for his legacy so by the same reason if one of the three be made executor to the testator the law saith he may and will retaine the 20 l. in satisfaction of his legacy and the law alloweth of it for it is reason that he be next to himselfe and have regard to himselfe before another And this is the reason of the case in 12. H. 4. f. 21. where in debt upon an obligation against the heir he pleaded that the Plaintiff was executor to Lancestor which deed he put before them and administred certaine goods and Chattels to the value of the debt and more and retained the same summe with him in the name of payment and demanded judgement if Action And Hull said that if he did not retaine the same to himselfe and might have retained it and did not he shall be barred for a man is bound to be next to himself and this was the opinion of some of them for which he pleaded there that he adminstred no goods after the death of the Testator vide ibidem plura in Paramers case And for the same reason doth the law in all reciprocall acts respect mutuall recompence and consideration for if there be no consideration why should they be made Doct. and St. and it is supposed there was error in such Acts because there is no consideration of profit for every one is next unto himselfe ad suum lucrum satis sapit is sufficiently wise to project his owne emolument And therefore have considerations a great effect in lawes and customes for consideration is the beginning of all customes the grounds of all uses the reason of all rights and the causes of all duties For without consideration nothing is wrought by any conveyance no interest transferred no right removed nor duty accrued and no custome hath continuance As if the Lord of the Manner prescribe that every one who passeth the highway which lyeth in his Mannor shall pay 12. d. to him for his passage this is void and not upon good consideration but if he prescribe to have a penny of every one that passeth such a Bridge which the Lord of the Mannor doth use to repaire this is a good prescription Calthrope Copy-holds f. 35. and 36. And therefore is consideration described by Dier f 336. to be the cause or occasion of a meritorious recompence either in deed or law for all contracts and bargaines have quid pro quo contractus est quasi actus contra actum and must have quid pro quo Coke com f. 47. b. And so it is in exchanges annuities pro consilio impendendo or service rents services and tenures for dâ—meanes of Lands as Frank-almoigne Homage-auncestrell for warranty and acquittall commons for cause of vicinage or service Devise of a woman causa matrimonij praelocuti so the manner of a gift to doe such a thing or to make such a thing Considerations are either executory or executed and in considerations executory the recompence failing the Feoffment or grant ceaseth as a feoffment to instruct the feoffor in one mistery or Art if the Feoffor dieth before instruction the heir shall re-enter 21. E. 3. Grant of an Office and for the executing it a fee if the office be determined the fee is determined M. 5. E. 4. 7. and 20. E. 4. If a woman give land causa matrimonii prelocuti and he will not marry her she shall have a writ to recover the land Ployd f. 58. a. If a man make a lease for yeares rendring rent the lessee needeth not pay any rent if the Lessor had nothing in the land at the time of the lease because he had not quid pro quo Coke com f. 47. b. If I grant an annuity pro consilio impendendo if he wil not give me councell I must stay my annuity Ployd 144. b. An usuall and accustomed attendance of a corodian upon the Soveraigne of a monastery upon festivall daies determineth the corodie it being a reward for attendance Exchanges not executed by each party at the first is defeasible 9. H. 4. A portion of rithes granted by indenture for ever without cavillation or contradiction and an annuity granted for the aforesaid portion So to have a way for my life and I grant an annuity of 20 s. without limitation the annuity shall endure but during my life Dier 336. 337. Where no consideration is expressed there the consideration may be averred Dier 146. Vellies case A rehersall of a consideration past whether it be true or false shall not dissolve the gift as because he served me in the Wars beyond the Seas although it be false it is not materiall Bracton in modis donationum and so in the case of the King Dier f. 337. If A. enfeoff B.
this is an accord rather then a contract and upon such accord the thing in recompence must be paid or delivered in hand for upon accord there lyeth no Action Dr. and St. c. 24. f. 104. which accordeth with the resolve in Cok l. 6. f. 43. Blakes case accord with satisfaction is a good bar for the personalty but not for the realty vide ibid. plura An implicite consideration is when the law doth intend a consideration so the Host of any common Inne may detaine a mans horse if he will not pay him Dier 30. And a Taylor may deteine the apparrel untill he is paid for his labour 5. E. 4. 2. Fulb. l. 1. f. 6. Hereunto belongeth contracts in law though not arising from the consent of the parties as he that findeth another mans goods is chargeable by reason of the possession to him that right hath so he that receiveth monies to ones use or to deliver over to him is chargeable as a receivor so is he that entreth into land and receiveth the profits Finch Nomot f. 181. Exception In an action of debt upon an obligation the consideration upon which it was made is not to be enquired for it is sufficient to say that it pleased him to make the obligation Ployd 309. b. vide ibid. plura Though it be probable that upon every bond there is a contract because he confesseth the debt but if there were none the creditor needeth not to prove no more then the delivery of it And for the same reason the law respecteth matters of profit and interest more then matters of pleasure trust and authority or limitation for matters of profit shall be taken more largely and may be assigned and not be countermanded but matters of pleasure trust and authority shall be taken more strictly and may be countermanded Finch Nomot f 31. As a licence to hunt in my Park or to walke in my Garden extendeth onely to himselfe and not to his servants or other in his company for it is but a thing of pleasure otherwise it is of a licence to hunt kill and carry away the Deer for that is a matter of profit 13. H. 7. 18. A way granted to a Church over my land extendeth not to any other but to himselfe for it is but an easement 12. H. 7 25. b. A reversion granted to two joyntly and the meant attorneth to one it is a void attornement 11. H. 7. 12. b. If the Sheriff be-head one should be hanged it is felony 35. H. 5 58. b. The King licenceth one to alien the third part of his land and he alieneth all it is a void alienation for all 4. E. 6. 68. b. A lease is made to A. and B. for their lives A dieth B. shall have all during his life for it is an interest but if a lease be made to I. S. during the life of A. and B. there if one of them die the estate is utterly determined for that is a limitation A licence to come to my house to speak with me 9. E. 4. 4. b. or goods bailed over to deliver to I. S. 1. E. 5. 2. or to bestow in almes Dyer 22. or a letter of Attorney to deliver seisin Perkins all these may be countermanded before they be done because they be matters of trust Bur if I present I. S. to a Church I cannot afterwards vary and present a new for a kind of interest passeth out of me 14. E. 4. 1. So if I deliver an obligation as an escrowe into a strangers hand to be delivered to the obligee upon condition performed I cannot recall it for the obligee is as it were a party and privy to the delivery Perk. 19. b. Nemo tenetur prodere seipsum Ployd f. 32. b. The Law will not enforce any one to shew that which is against himselfe As if a man grant to one an Annuity pro consilio impendendo the Grantee shall have a Writ of Annuity without shewing that he hath given him Counsell for the shewing of it is not for his benefit and the deniall Counsell goeth in defeasance of the Annuity which ought to be shewen by the Plaintiff because he shall have the benefit of the defeasance M. 39. H. 6. f. 22. So in 15. H. 7. f. 1. It is holden if an Annuity be granted to one untill he be promoted to a benefice he shall have a writ of Annuity and shall not shew that he is not advanced to a benefice for that goeth in defeasance of the Annuity which must be shewen by him who shall take advantage of the defeasance but there it is holden that if he had granted that if the party had first done such a thing that then he shall have an Annuity that there he ought to shew the performance of the thing in his count to enable him to the Annuity in that the condition precedeth the estate and enableth him to to the estate and so the diversity vide ibidem plura in Colthirsts case Nemo tenetur turpitudinem suam detegere Reg. I C. No man is bound to bewray his own shame and crime and therefore the Law is that if a man for feare or simplicity will confesse himselfe guilty of a Felony yet the Judges must not record that confession but suffer him to pleade not guilty Finch Nomos f. 29. Accusare nemo se debet nisi coram Deo Vasques no man ought to accuse himselfe but before God and therefore no man ought to be enforced to sweare against himselfe before man and the reason thereof is given by Coke l. 4. f. 9. 5. Slades case Jurare in propria persona est saepenumero in hoc seculo praecipitium diaboli ad detrudendas miserorum anim is ad infernum to sweare in his own person is oftentimes in this world the precipice of the Devill to cast downe the soules of miserable men into hell and therefore in debt or other action where wager of Law is admitted by the Law the Judges without good admonition or due examination of the party doe not admit him to it and for this reason Coke is of opinion that where one may have severall action to wit an action upon the case upon an assumpsit or an action of debt wherein the Defendant may wage his Law it is better and lesse mischeivous to bring an action upon the case then an action of debt for now experience proveth that the consciences of men grow so large that the respect of their private commodity doth rather induce men and principally those who have declining estates to perjury according to the censure of the Satyrist Jures licet Samothracum Et nostrarum aras Juvenall contemnere fulmina pauper Creditur atque deos Swear by our Altars and the Gods of Wonder For gaine the poore will scorne them and Joves thunder And therfore by the Civil Law Rejicitur pauper pro teste a poor man is excepted against for being a witness though in our Law he is a sufficient witness
the Deed or writing it shall not bind the party that delivered it for it is at the perill of the party to whom the writing is made that the true purport effect of the writing be declared if the party that shall deliver the writing doth require it but if the party who shall deliver the writing doth not require it he shall be bound by the Deed though it shall be contrary to his meaning and it mattereth not though a meere stranger readeth the writing which is well proved by the usuall forme of pleading in such case to wit that he was a Lay-man and not lettered and that the Deed was read to him in other words c. generally without shewing by whom it was read Coke l. 2. Thorowgoods case f. 11. b. If a disseisor dye seised the Disseissee being within age Covert Baron in Prison or out of the Realme it shall be no descent to take away the entry Finch Nomot f. 26. In omnibus fere minori atati succurritur Coke l. 9. 84. In all cases for the most part there is favour shewed to them within age As In a writ of customes and services which is in the nature of a writ of right in which finall judgement shall be given against an infant who is in by descent in 6. H. 3. Tit. page 144. It is adjudged he shall have his age so 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 know what arrearages he shall tender before judgement and that also is in the nature of a writ of right for if he make not true tender he shall lose his Land 28. E. 3. 99. But in a per quae servitia against an infant who hath the tenancy by descent he shall not have his age because he hath benefit and availe over and above the Premisses and therefore is he called tenant paravaile and it is against reason that when the heire hath profit by the tenancy that he shall not pay annuall rent and it is no mischeife unto him for notwithstanding his Attornement within age he may at his full age disclaime to hold of him or to acknowledge that he holdeth of him by lesser or other services Coke ibidem And regularly it is true that an infant may doe any thing for his own advantage and not to his prejudice as to be an Executor or to purchase without the consent of any other for it is intended his benefit and at his full age he may either agree thereunto or perfect it or without any cause alledged waive or disagree to the purchase and so may his heire if he doth not agree at his full age Coke com f. 2. b. In a writ of mesne the proceedings shall not be stayed for the nonage of the infant because it is not reason that the infant shall be distrained for the services of the mesne during his nonage and shall not have remedy untill he is at full age Coke l. 9. f. 85. a. If an infant make a Feoffment in person if he dye without heire the Land shall not escheate but otherwise it is if it be by letter of Attorny Dyer f. 10. Coke l. 4. f. 125. a. An infant shall sue by procheine amy but defend by guardian Coke com f. 135. a. If an infant buyeth Lands in fee with the mony for which he did sell his own Land yet may he avoid his own alienation Doct. Stud 21. An Execution Elegit and Statute Merchant c. shall not be sued against the heire during his infancy Coke com 290. a. An infant shall avoid matters in faite either within age or of full age but matters of Record as Statutes c. acknowledged by him a fine levied by him or recovery against him by default in a reall action must be avoided by him during his minority to wit Statute by Audita querela and the fine and recovery by a writ of error because they are judiciall acts and taken by a Court or a Judge and therefore the nonage of the party to avoid the same shall be tryed by inspection of Judges and not by the Country and because his nonage must be tryed by inspection this cannot be done at his full age but if that age be inspected by the Judges and recorded that he is within age albeit he come of full age before the reversall yet may it be reversed after his full age Coke com f. 380. b. The Law doth provide for the safety of a mans or womans estate that before the age of twenty one years they cannot alien any Lands Goods or Chattells or bind themselves by deed Coke com f. 171. b. Unlesse it be for necessary meate drink and apparrell necessary physick and such other necessaries and likewise for his good teaching and instruction whereby he may profit himselfe afterwards but it must be pro necâ—ssario vestitu for convenient apparrell and not for Gold lace 11. H 7. and ought to be suitable to his calling Popham Rep. f. 152. But if he bind himselfe in an obligation or other writing with a penalty for the payment of any of these the obligation shall not bind him also all other things of necessity shall bind him as presentation to a benefice for otherwise the lapse should incurr against him Also if an infant be Executor upon payment of any debt due to the Testator he may make an acquittance and in that case a release without payment is void ibidem f. 172. a. If a man inheritor taketh wife who have issue a Son between them and the Father dyeth and the son entreth into the land and endoweth the mother and then the mother alieneth that which she hath in dower to another in fee with warranty and then dyeth and the warranty descendeth to the Son this warranty collaterall shal bar the Son Little but if the Heir be within age at the time of the descent of the warranty he may enter and avoid the estate either within age or at any time after his full age but if he within age at the time of the alienation with warranty and become of full age before the descent of the warranty the warranty shall barr him for ever Coke com f. 380. b. Though no laches shall be adjudged in an infant in case of descent as Littleton saith yet in some other cases laches shall prejudice an infant as laches shall be adjudged in an infant if he present not to a Church within six months for the Law respecteth more the priviledge of the Church that the cure be served then the priviledge of he infant so the publicK repose of the Realme shall be preferred before the priviledge of infancy in the case of a fine where the fine beginneth in the time of the Ancestor As if a fine be levied before the act of non-claime and one of full age had right at the time of the time levied and dyeth within the
yeare and the right descendeth to the heire within age he shall be bound to that yeare commenced in his Father and his nonage shall not availe him there because his Father was of full age Ployd 372. a. So non-claime of a villaine of an infant by a yeare and a day who hath fled into ancient demesne shall take away the seisure of the infant And if an infant bringeth not an appeale within a yeare and a day he is barred of his appeale for ever for the Law respecteth more liberty and life then the priviledge of infancy If the King be seised of Lands and the Land descend to the successor this shall bind an infant for that the priviledge of the infant in this case holdeth not against the King Coke com f. 246. a. Though it be regularly true that no laches shall be adjudged in infants for not entry or claime to avoid descent yet laches shall be accounted in him for not performing a condition annexed to the State of Land for the laches of an infant for not performing a condition annexed to an estate either made to his Ancestor or himselfe shall bar him of the right of the Land for ever as if either of them be enfeoffed reserving a rent and for default of payment a re-entry the laches of either of them in not paying the rent shall disinherit either of them for ever But if a man maketh a feoffment in fee to another reserving a rent and that if he pay not the rent within a month ne shal double the rent and the feoffee dyeth his heir within age and the infant payeth not the rent he shall not for this laches forse it any thing for that the infant is provided for by the Statute non current usurae contra aliquem infra aetatem existentem Merton C 31. An infant is impleadable in Law and for his contempt shall be punished as a man of full age as an outlawry returned against an infant is good and not erronious so as he hath passed the age of fourteen years 2. H. 5. Dyer 104. b. and 3 H. 6. An infant was forced to answer upon breach of a prohibition in an estreapment An infant is bound by any Statute Law if he be not expresly excepted in it as in fore-judger recovery in Cessavit and fines with proclamations Doctor Student c. 45. 147. And that if he had not been excepted in those Statutes they should have bound him an infant prayeth to be received and it is traversed he shall find sureties of the meane profits as an heire of full age Dyer 104. b. An infant under the age of fifteen cannot wage Law either for a debt or default of any reall action Office of Exec. f. 346. If an infant be garden of a prison and suffereth a prisoner to escape he shall pay the debt because the Statutes are generall and by that reason he may by a penall Statute loose his Goods Doct. and Stud. C. 46. 147. If one enter into a freehold of an infant with his consent this is a disseisin because an infant cannot consent to an entry An infant under one and twenty cannot be a Bayliff receivor for want of skill or ability nor yet sworn in any Enquest or Jury and is uncapeable of a Stewardship of the Court of a Mannor in possession or reversion or any office concerning the administration of Justice Coke com f. 3. b. 157. a. And not capeable to performe grand Serjeanty at the coronation ibidem 107. b. Actus non facit reum nisi mens fit rea Coke com f. 247. b. The act doth not make one guilty unlesse the mind be guilty and therefore if an infant under the age of discretion commit an act amounting to a Felony shall stand free from the attainder and punishment incident to a Felon but if he be of the age of discretion though he be not of full age he shall suffer as a felon and regularly the age of discretion accounted by the Law is fourteen yeares and therefore shall such an one incur the like attainder os felony as one of full age Office of Executor f. 244. and Coke com f. 247. b. But non est regula quin fallit for one of much lesse yeares having attained the maturity of discretion if he commit any felonious act shall suffer as a Felon as it was resolved in the time of King Henry the seventh in the third yeare of his reigne f. 16. touching an infant but of the age of nine yeares who killing another boy of the like age with a knife and then hiding the slaine boy and excusing the blood found upon him by saying that his nose had bled it was held by the Judges that he was to be hanged as a Felon his such nonage notwithstanding and by King Ina's Law puer decem annos natus surto conscius arguatur an infant of the age of ten years shall be attainted of theft if guilty thereof but Doctor and Student applyeth an infants discretion to the knowledge of the Law so that if an infant doe a murther at such yeares as he hath discretion to know the Law he shall have the punishment of the Law as if he were of full age and this is by a maxime in the Law for eschuing of murthers and felonies and so it is of trespasses cap. 46. f. 148. If a dumbe person bring an action he shall plead by procheine amy Finch Nomot It was a time when Idiots and mad men and such as were deafe or dumb were disabled to sue because they wanted reason and understanding but at this day they all may sue but the suite must be in their names and it shall be followed by others Coke com f. 135. b. A man that is borne dumb may make a grant by delivery of his hands or signes and a man borne deafe and dumb may make a guift if he have understanding and though it be an hard matter that a man shall have understanding without hearing yet there are diverse such persons as have understanding by their sight and a man borne dumb and blind may have understanding but a man borne dumb deafe and blind cannot have understanding Perk. f. 6. Furiosus furore suo punitur Coke com f. 247. b. The Law favoreth a mad man by reason of his disability in criminall causes and because he is amens sâ—ne mente without his mind and discretion he shall not suffer for any felonious fact for the intention is the forme of Felony that is if it be done felleo animo with a bitter and mischeivous mind and therefore is he punished onely with his madnesse there are foure sorts of mad men the first is an Idiot which from his nativity by a pertuall infirmity is non compos mentis 2. is he that by sicknesse or other accident wholly loseth his understanding 3. A Lunatick who hath sometimes his understanding and sometime hath not aliquando gaudens lucidis intervallis and is called non compos mentis
so long as he hath no understanding Lastly he that by his own vicious act for a time depriveth himselfe of his memory and understanding as he is that is drunk Coke com 147. a. Coke l. 4. 124. b. And for the three first sorts of mad men the Law is that they shall not lose their lives for felony or murder because they want reason and understand not what they doe neither can the punishment of a mad man who is deprived of reason and understanding be an example to others And therefore as Ployd f. 19. a. If a man of non sanae memoriae kill another although he hath broken the words of the Law yet he hath not broken the Law because he had not any memory nor understanding but meere ignorance which cometh unto him by the hand of God and therefore it is called unvoluntary ignorance to which the Law imputeth the act done because no default iâ— in him and therefore he shall be excused in that he is ignorant by compulsion and such an act is called and termed ex ignorantia to wit in that involuntary ignorance is the cause and God provided a speciall remedy that he who doth such a thing by such ignorance shall not be punished for it as Deut. 19. if a laborer be at labor with an hatchet and the head of the hatchet flyeth off and killeth another that such a laborer shall not be put to death because he did it by un-voluntary ignorance but if a man breake the Law by un-voluntary ignorance there he shall not be excused As if at man be drunk and kill another this is Felony and he shall be hanged for it and yet he did this by ignorance for when he was drunk he had neither memory nor understanding but because that ignorance came unto him by his own act and folly and he might resist this ignorance he shall not be priviledged by it because he is voluntarius daemon Coke com f. 247. and as Aristotle saith is worthy of double punishment because he hath dâ—ubly offended to wit in being drunke to the ill example of others and also in doing of the act and this act is called and said to be done ignoranter to wit that he is the cause of his owne ignorance and so there is a diversity of a thing done ex ignorantia ignoranter Ployd ibidem And Coke com f. 247. a. Omne crimen ebrietatis incendit detegit and what hurt or ill soever he doth in his drunkennesse doth aggravate it and that as well in case touching his life his Lands his Goods or any other thing concerneth him Coke l. 4. f. 125. Also for the same reason non compos mentis cannot commit petit treason as if a wife non compos mentis slay her husband as appeareth 12. H. 3. Tit. forfeiture 33. But in some cases non compos mentis may commit high Treason as if he slay or offer to slay the King this is high Treason for the King is caput Reipub the head and safety of the Common-wealth and from the head good health is conveyed to all and for this cause their persons are so sacred that none ought to offer them violence but he shall be reus laesae majestatis guilty of high Treason Coke l. 4. f. 124. b. And likewise for the same reason many are the priviledges which the Law giveth to one who is not compos mentis and his heires as if an idiot or non compos mentis maketh a Feoffment in person and dyeth his heire within age he shall not be in ward and if he dyeth without heire the Land shall not eschcate but if he make a Feoffment by Letter of Attorny although the Feoffor can never avoid it yet as to others in judgment of Law the State was void and therefore in such case if the heir be within age he shall be in ward and if he dyeth without heires the Land shall escheate and that is the true reason of the bookes in 7. H. 4. 5. and 7. H. 4. 12. And so is there a great diversity between an estate made by the person of a mad man and by his Attorny Coke l. 4. 125. Also an idiot in an action brought against him shall appeare in proper person and he that can plead best for him shall be admitted 33. H. 6. 18. otherwise it is of him who becometh non compos mentis for he shall appeare by his guardian if he be within age and by an Attorny if be be of full age Coke ibidem f. 124. b. So if a man of non sanae memoria â—ath cause to enter into tenements and a descent is had in his life during the time he was of non sana memoriae and then dyeth his heire may enter upon him is in by descent Littleton and though Littleton there saith that the Ancestor who had the same title could not enter during his life yet in case of a bar of his right he may As if a man of non compos mentis be disseised and the disseisor levieth a fine in this case at the common Law though the yeare and the day be passed yet he that was non compos mentis shall not be bound by it but that he might well enter Coke l. 4. f. 125. vide ibidem plura But if an Idiot or a non compos mentis by accident or qui lucidis gaudet intervallis maketh a Feoffment in fee he shall in pleading never avoid it by saying that he was an Idiot c. at the time of the Feoffment because it is a maxime in the common Law that no man of full age shall be received in any Plea by the Law to disable himselfe contrary to the opinion of some that he may avoid his own act by Entry or Plea and others that he may avoid it by Writ and not by Plea and others as Fitzherbert in his Writ of dum fuit non compos mentis that he may avoid either by Plea or by Writ but Littleton here is of opinion that neither by Plea Writ or otherwise he himselfe shall avoid it and herewith the greatest authorities of ouâ— Books doe agree and so was it resolved in Beverlyes case Coke l. 4. Though this Maxime holdeth not in criminall causes as before hath been said Coke com f. 247. Yet doth not the Law leave one who is non compos mentis destitute of remedy in this case but that upon an office found for the King the King shall avoid the Feoffment of him who is of non compos mentis for the benefit of him whose custody the Law giveth to the King and all that he hath for the King is bound by the Lawes to defend his Subjects and their Goods and Chattells Lands and Tenements as Fitzherbert saith N. B. 232. and therefore the King of right ought to have and to order him his Lands and Goods and this was by the common Law as appeareth by Britton f. 16. who writ in the fifth yeare of
flyeth to the wall or to some other unpassable place to save his life and upon the pursuit of the other he killeth him this is man-slaughter in his own defence 3. E. 3.284 From morall Philosophy NExt in order succeeedeth morall Philosophy the exact knowledge of which as Picolonomy Inductio ad libros Civil Philos cap. 6. cannot be comprehended without the precognition of the naturall and therefore hath the precedency for the morall faculty doth instruct men to avoid vices and to cure the maladies of the mind which cannot be compleatly accomplished without the naturall contemplation of the affections of the soul it is called Ethica by the Phylosopher or institutions of manners by which the oblique manners of men are rectified and their Enormities regulated and certainly from such exorbitances of manners originally proceeded the institutions of Lawes and from whence as Doderidge all Laws are in generalty derived for in the primary age which may rather be named the Iron then the golden age when men lived like beasts Dod. English Lawyer f. 250. the one praying on the other according to the censure of the Philosophicall Poet. Quod praedae obtulerat fortuna cuique ferebat Sponte sibi quisque valere vivere doctus What fortune offered for a pray each one Layd claime to it learned to live alone And serve himselfe Then were Laws first excogitated to suppresse the barbarous Savageness of such humane beasts and to reduce them to a more civill association as the Venusine Poet rightly Jura inventa metu injusti fateare necesse est Tempora si fastosque velis evolvere mundi If we revolve the Annalls of mans time From the worlds birth we must confesse and find That Laws were founded for feare of the unjust Seeing then Laws were introduced from the depraved judgements and corrupt manners of men who will not acknowledge that the science by which they are formed and the principles deduced from it are requisite and materiall to the fundamentall knowledge of the Law From which Fountaine our Law doth draw these grounds and maximes Illud possumus quod jure possumus Reg. I.C. We can doe that which by right we can doe for as Boetius potentia non est nisi ad bonum ability and power is not but to good for the power to have liberty to doe wrong is not by such liberty augmented but diminished potentia injuriae est impotentia naturae the power to doe injury is the impotency of nature as to decay and dye is no power but in respect of the privation and diminution in the thing is rather impotency as the Angells and Saints confirmed in glory and cannot sin are more powerfull then man who through his impotency can sin So a King ruling royally and with whom whatsoever shall please him hath the power of a Law and may doe what evill he lift is more impotent then he that doth all according to the rule and square of Law and therefore doth the Law give this rule Illud Rex solum potest quod de jure potest Coke l. 3. 99. f. 123. l. 1. 11. f. 7. Solum Rex hoc non potest quod non potest injuste agere The King onely can doe that which by right he can doe and the King can onely not doe this that he cannot doe any thing unjustly as 4. E. 4. 15. the King can be no disseisor he can be no wrong doer so if the King granterh and releaseth the services to the tenant and his heires that shall not extinct the tenure in all for necessity of the tenure and the King cannot by his charter alter the Law and therefore it shall be expounded as neere to the intention of the King as may be and that is to extinguish all the services but it onely which is incident inseperably to every tenure and that is fealty for it the King cannot doe by Law Coke l. 9. f. 123. a. And Coke l. 11. f. 72. a. The King shall not be exempt by construction of Law out of the generall words of Acts made to suppresse wrong because he is the Fountaine of Justice and common right and the King being Gods Lievtenant cannot doe wrong and with it accordeth 13. E. 4. 8. in the case of Alton woods l. 1. f. 41. So Lands were given to Henry the seventh and the heires males of his body and the question was whether the King in regard that he was not expresly restrained by the Act of 13. E. 3. de donis conditionalibus post prolem masculam sussitatum might alien or no and it was adjudged he could not alien but was restrained by the said Act for it were an hard argument to grant that the Statute which restraineth men to doe wrong and evill shall permit liberty to the King to doe it Ployd f. 246. Signior Barklys case Coke ibidem vide plura Potestas regis juris est non in juriae cum sit author juris non debet inde injuriarum masci occasio unde jura mascuntur Bract. l. 2. The Kings power is of right and not injury and as he is the author of right there ought not from thence to arise occasion of injury from whence rights proceed As if one who intendeth to sell his Land and by fraude conveyed it by deed enrolled to the King to the intent to deceive the purchaser and then he selleth the Land to another for a valuable consideration maketh conveyance accordingly in this case the purchaser shal enjoy the land against the Queen by the Statute of 27. Eliz. c. 4. For though the Queen be not excepted yet the act being general made in suppressing of fraud shall bind the Queen So if tenant in tail be seised of Land the remainder over in tail or in fee and he in the remainder knowing that tenant in tail will alien the Land and by recovery bar his remainder to the intent to deprive the tenant in tail of his birth-right and power that the Law hath given him to bar the remainder and of intent and purpose to deceive the purchaser granteth his reversion to the Queen by deed enrolled and then tenant in tail for a valuable consideration alieneth the Land by common recovery and dyeth without issue the purchaser shall enjoy the Land against the Queene by the Statute of 27. Eliz. the words of which are that every conveyance c. made c. to the intent and of purpose to deceive a purchaser t. shal be deemed onely against such purchaser c. to be utterly void vide ibidem plura in Magdalen Colledges case l. 2. in Cholmlys case f. 51.52 And the King hath a prerogative above all his Subjects that where by fraude or salse suggestion he is deceived that he in that case shall avoid his owne grant jure regio 22. E. 3. 47. in the Earle of Kents case Stanf. pr. regis 84. a. As the King can neither doe himselfe injury nor others And
a fine with proclamations now by the present right he hath five years by the first favant and if after these five years A. doth dye he shall have other five years for the next remainder by the second savant which giveth them as to other persons which have a future right and if after those five yeares B. doth dye he shall have other five years by the other remainder for saith he it is the text of the civil Law when two rights meet together in one person it is all one as if they were in severall persons Ployd ibidem vide ibidem plura in the Lord Zouches case Exception Coke l. 7. Calvins case f. 14. b. This rule holdeth not in personall things that is when two persons are necessarily and inevitably required by Law as in the ease of an alien borne there is for in the case of an alien borne you must of necessity have two severall legiaries to two severall persons and no man will say that now the King of England may make a League with the King of Scotland and that because in the Kings person there concur two distinct Kingdomes it is all one as if they were in severall persons vide ibidem f. 2. Coke l. 4. f. 118. a. Though a Bishop when he is translated to an Arch-Bishoprick or a Baron be created an Earle now he hath both those dignities and as it is commonly sayd when two rights concurr in one person it is all one as if they were in severall persons yet the Act of 21 H. 8. was alwayes construed strictly against Non-residence and Pluralities as a thing much prejudiciall to the service of God and the instruction of his people and therefore within that Act an Arch-Bishop shall have no more Chaplaines then as an Arch-bishop or an Earle then as an Earle for though they have diverse dignities yet is it but one and the same person to whom the attendance and service shall be made and if a Baron be made Knight of the Garter or Warden of the Cinque Ports he shall have but three Chaplaines in all Et sic de similibus quia difficile est ut unus homo vicem duorum sustineat because it is an hard thing for one man to undergoe or sustaine the Place and Office of two persons Coke l. 4. In the case of the death of one within the Verge the Coroner of the houshold of the King and the Coroner of the County shall joyne in the Inquiry and if one be Coroner of both he shall well execute this authority Quilibet potest renunciare juri pro se introducto Coke Comment f. 99. a. Every man may renounce or refuse a Law made or brought in for himselfe as a man seised of lands may at this day give the same to a Parson Bishop c. and their successors in frank-almoigne by the consent of the King and the Lords mediate and immediate of whom the Land is holden for every one may renounce a Law brought in for himselfe and f. 223. b. The Statute of 32. H. 8. giveth power to tenant in tail to make a lease for three lives or twenty one years yet if a man make a gift in tail upon condition that he shall not make a lease for three lives or twenty one years the condition is good for the Statute doth give him power to make such leases which may be restrained by condition and by his own agreement for this power is not incident to the estate but given to him collaterally by the act according to that rule in Law Quilibet potest c. Coke l. 10. f. 101. a. In the Act of 23. H. 6. c. 10. the words upon reasonable sureties of sufficient persons are added for the security of the Sheriff and therefore if he will take but one surety be it at his perill for he shall be amerced if the Defendant appeareth not and for it the Statute doth not make the obligation void in such case for the said branch which prescribeth the forme requireth that the obligation shall be made to the Sheriff himselfe c. by the name of their office and that the prisoners shall appeare in which clause no mention is made of the sureties so as the intent of the Act was that for that it was at the perill of the Sheriff to leave it to his discretion to take one or more for his indemnity and peradventure it may be better for him sometimes to take one that is sufficient then two others and though the sureties or surety have not sufficient within the same County as the Statute mentioneth yet the obligation is good enough for those words of the Act as to that point are more for counsell and direction of the Sheriff then for precept and constraint to him and that for the safety of the Sheriff for if the Defendant cannot find two sufficient sureties having sufficient within the same County the Sheriff is not bound to let him to bail and this resolution agreeth with the ancient rule to wit Quilibet potest c. An Orphant in London exhibited a bill in the Court of request against another for discovery of part of his estate Phesant prayed a prohibition upon the custome of London but it was resolved that he might sue in what Court he would and wave his priviledge there 19. C. B. R. But this case extendeth not to any thing that is against the Common-wealth or common right Coke com f. 166. a. Summum jus summa injuria Ployd 160. b. The rigor of the Law is the extremity of injury if a man make a lease of a messuage so as he may make his profit of his houses there within he cannot abate the houses or make wast of them by the opinion of the book H. 17. E. 3. f. 7. for the intent was not such though that the words seem otherwise and sayd to pursue the words is Summum jus which the Judges ought not to doe but ought rather to pursue the intent And for the same reason the Executors of Tenant for life shall have reasonable time to remove his goods after his decease and a man shall have reasonable time wherein he shall purchase a Writ of Journys accompt Finch Nomot Jus descendit non terra 20 H. 6. 5. The right descended and not the land and Coke Inst f. 345. a. b. There is a right which includeth an estate in esse in Conveyances which he in reversion and remainder hath and hath jus in re and may be granted to a stranger with attornement or released to him in possession as if Tenant in fee-sample maketh a Lease for yeares and releaseth all his right in the Land to the Lessee and his heires the whole estate in Fee-simple passeth and also the release to him in possession with the reservation of a rent is good and there is another right which is called a bare meere and naked right and jus adrem when an estate is turned to a right
remotissime vana which by the intendement of the Law never cometh into act Coke l. 2. f. 5. 2. n. b. in Sir Hugh Chomleys case vide ibidem plura And hereby the way may pertinently be observed that a possibility cannot be released as if before judgement the Plaintiff in an action of debt releaseth to the baile in the Kings Bench all demands and after judgement is given this shall not bar thee to have execution against the baile because at the time of the release he had but a meere possibility and neither jus in re or jus ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute release to the Conusor all his right in the Land yet afterward he may sue execution for he hath no right to the Land till execution but onely aâ— possibility and so have I known it adjudged Coke com f. 265. b. So if A. grant to B. that if he doe such an act he shall have an annuity of twenty pounds during his life before the Act done he cannot release the annuity Coke l. 1. in Albanys case Lex semper dabit remedium the law so favoreth right that it will suffer things against the principles of Law rather then a man to be without his remedy As a man who is outlawed may bring an action to reverse it an outlawry there is no Plea 4. H. 7. 40. The Tenant shall have a replevin against the Lord that did wrongfully distraine though the beasts be come back to himself because he can have no action of trespasse against him for that prisall and shall recover damages for the tortious prisall F. n. b. f. 69. H. A man after judgement is passed against him shall plead against the King a Charter of pardon or any such thing done in the meane betwixt the verdict and the judgement because against the King he can have no Audita querela 11. H. 7.10 otherwise it is against a common person And therefore is it a principle in Law cuicumque aliquis quid concedit concedere videtur id sine quo res ipsa esse non potest Coke l. 11. f. 52. a. Which Ploydon thus expresseth that it is held as a maxime in 2. R. 2. in trespasse that if any man hath interest to any thing by the grant and assent of another and the party who hath such interest cannot have the principall thing without doing the other thing that he may doe the said other thing and justify it because it is a meanes to come to his profit for there it is holden That if one grant to me all his Trees growing in his Woods I may cut them down and carry them through all his Land and though his Grasse be spoiled with the carriage he shall not have a Writ of trespasse of it for Trees are such things that if they be not carryed by Carts he cannot have them nor make his profit of them But if one sell all his Fish in his Pond and the Vendee dig a trench so as the water may run out that by such meanes he may take the Fish an action of trespasse will lye against the Vendee because he might take the Fish by Nets or other Engines but if there had been no other meanes to take them it had been otherwise and to come to the banks to fish he may well justify it for without it he cannot take them by any meanes so as a man shall alwayes justify the necessary circumstance where he hath title to the principall thing Ployd f. 15. 16. a. vide ibidem plura in Renigers case So when a Lessor in the Lease except the Trees and after hath an intention to sell them the Law giveth to him and to those who will buy them power as incident to the exception to enter and shew the Trees to those who will have them for without entry they cannot view and without view they cannot buy Coke l. 11. f 52. in Lisords case So 19. H. 6.29 A man seised of a mese in a Burrough c. devisable deviseth it to his wife in taile and that if his wife dye without issue that his Executor may sell it and it dispose for his soule in this case the Executor may by the Law enter into the house to see whether it be well repaired or no to the intent to know at what valew he may sell the reversion And the Law giveth power to him who will repaire a Bridge to enter in the Land and to him who hath a Conduit within the Land of another to enter into the Land for it to mend as cause shall require as it is resolved in 9. E. 4.35 Coke ibidem vide plura And Coke l. 5. f. 12. a. If a man hath Mines hidden within his Land and leaseth his Lands and all his Mines in it there the Lessor may dig for them for quando aliquis quid concedit c. and this accordeth with 9. E. 4.8 that if a man lease his Land to another in which there is a Mine to wit an hidden Mine he cannot dig for it and if he doe it is wast but if he lease his Lands and all the Mines in it it is otherwise for the reason aforesaid vide ibidem plura in Saunders case If tenant at will soweth Corne on the ground and the Lessor out him he shall have free entry egresse and regresse to carry it away for when the Law giveth any thing to any one it giveth implicitly whatsoever is necessary for the taking and enjoying of the same and the Law driveth him not to an action for the Corne but giveth him a speedy remedy to enter into the Land and to take and carry it away and compelleth not him to carry it at one time or to carry it before it be ready to be carryed and if the Lessee be disturbed of this way the Law doth give unto him he shal have his action upon the case and recover his damages for whensoever the Law giveth any thing it giveth a remedy for the same Coke com f. 56. a. If there be Lord Mesne and Tenant and the Lord purchaseth the tenancy in fee the mesnalty is extinct but whereas the tenant held of the meane by five shillings and the mesne of the Lord by twelve pence so as he hath more in advantage by foure shillings he shall have the foure shillings as a rent-seck yearly of the Lord and yet he shall distraine for it for seeing the mesnalty is extinct the Law reserveth the distresse to the rent for quando lex aliquid concedit c. And therefore if a man maketh a Lease for life reserving a rent and bindeth himselfe in a Statute and hath the rent extended and delivered unto him he shall distraine for the rent because it cometh to him by course of Law Multa constituuntur in lege ne curia Domini Regis deficeret in Justitia
Court 34. H. 6. 43. And a maihme may be tryed by the inspection of the Court 28. Ass 38. If question be made whether they be summoners and viewers which appeare it shall be tryed by the examination of the Justices 33. H. 6. 10. So whether an Earle be an Earle or a Baron a Baron or no shall not be tryed by the Country nor by the Justices but by the writ of the King Coke l. 5. in the Countesse of Rutlands case And in Plea of an alien borne the league between the King and the Soveraign of the alien borne shall be tryed by the record of Chancery for every league is of record and generally all matters of record shall be tryed by the record it selfe and not by the Country or otherwise Coke l. 9. f. 31. vide de hoc plura ibidem And when a man is found an idiot from his nativity by office he who is so found may come into the Chancery before the Chancellor and pray that before him or such Justices or sages of the Law he may be examined whether he be an idiot or no or by his freinds may sue a Writ out of the Chancery retornable in the Chancery to bring him into the Chancery there before us or our counsell to be examined and if he be found upon that examination not to be an idiot the office so found c. is utterly void without any traverse or monstrans de droit or otherwise F. n. b. 233.10 E. 3. Title Livery 30. An Apostate shall be certified by the Abbot or other religious governor to whom he oweth obedience F. n. b. 232. In an appeale or upon an approvement the Defendant may pleade not guilty and try it with the Plaintiff by combat or battaile in person before the Justices 9. Ass Pl. 1. But the Defendant is restrained from choice of battle if there be any notorious presumption of the fact in him Finch Nomoâ— f. 422. vide ibidem plura And in a Writ of right the tenant may joyne issue upon the meere right and try it by combat or battaile by his champion with a free-man the champion of the demandant and not in person before the Justices 9. E. 4.35 If it be in question which of the Sheriffs made such a retorne it shall be tryed by the Sheriff 9. H. 4.1 If question be made if such a one be Sheriff it shall be tryed by the examination of the Sheriff himselfe 10. H. 4.7 Yet is he made by Letters Patents on record and therefore it also may be tryed by record 32. H. 6.27 A retorne made by the under Sheriff if it be denied shall be tryed by the under Sheriff and the Sheriff cannot disavow it if he confesse him to be his under Sheriff 10. H. 4.7 If an approver say that he commenced his appeale before the Coroner by duress that shall be tryed by the Coroner and if the Coroner deny it he shall be hanged 12. Ass 29. Tryall if the Statute shewed forth be a true Statute or no shall be tryed by the examination of the Mayor and Clerk of the Statutes who took the Statutes F. N. B. 104. H. In Assize the Tenant saith that the Lands are taken into the hands of the King it shall be tryed by the examination of the Escheator 9. H. 4.1 To a petit Cape the Tenant saith that he was in Prison three dayes before and three dayes after it shall be tryed by the examination of the Attorny 13. R. 2.22 Not attached within fifteen dayes in an assize shall be tryed by the examination of the Bayly So that the tenant was not summoned according to the Law of the Land shall be tryed by Law-gager and the Law-gager doth countervaile a Jury for the tenant shall make his Law duodecima manu to wit by eleven besides himselfe unlesse it be against a Corporation for then it shall for necessity be tryed by the Country because it cannot wage Law In a Writ of deceit upon a Recovery by default the tryall shall be if the judgement was given upon the petit capit by the Summoners if upon a grand Cape by the Summoners Pernors and Viewers 48. E. 3.11 So if a Recovery by default in a reall action be pleaded and the other saith not comprised it shall be tryed by the Summoners and Viewers 10. H. 4.7 and yet their is no remedy if they speake falsly and therefore ubi majus periculum ibi cautius est agendum where there is a greater danger there we ought to be more wary The cause of challenge shall be tryed by two tryers to be appointed by the Justices 9. E. 4.5 But the tryall of any one of the grand Jury shall be taken by foure Knights Tryall may be in debt upon a simple contract detinue c. either by Law gager by the Defendant himself or by the Country at the election of the Defendant 30. Ass P. 19. Coke l 9. f. 32.33 And Coke com f. 74. If a Subject of the King be killed by another of his Subjects in a forraine Country the wife or heire of the dead may have an appeale for that murder or homicide before the Constable and the Marshall whose sentence is upon testimony of witnesses or combat and their proceedings according to the civill Law and not by the oath of twelve men and so was it resolved in the twenty fifth of Elizabeth in the case of Sir Francis Drake who struck off the head of Dowty in partibut transmariuis that his Brother and Heire might have an appeale but the Queen would not constitute a Constable of England and therefore the appeale was dormant And Coke com f. 261. b. By the Statute of 25. E 3. De proditionibus it is declared that it is Treason by the common Law to adhere to the Enemies of the King within the Realme and without if he thereof be proveablement attaint of overt-fact and that he shall forfeit all his Lands c. But least the common Law declared by Parliament should be illusory and that the Delinquent might not be attainted thereof for necessities sake the adherency without the Realme must be alledged in some place within England and if upon evidence they shall finde any adherency out of the Realme they shall finde the Delinquent guilty but most commonly they endited him if he had Lands in some County where the Lands did lye that were to be forfeited and so it is declared by the Statute of 35. H. 8. And that it shall be tryed by twelve men of the County where the Kings Bench shall sit and determined before the Justices of that Bench or else before such Commissioners and in such Shire of the Realme as shall be assigned by his Majesties commission and this Statute for this point remaineth in force at this day and so was it resolved by all the Judges 33. Eliz. in Orurks case and 34 Eliz. in Sir John Perots case for Treasons done in Ireland for that it is out of the Realme
Which giveth a Writ of Formedon in the remainder against the pernors of the profits was made for oppression of covin for the Feoffment made to persons unknown to defraud them who had right to the Land was a great covin and deceite in Law and therefore a Scire facias to execute a remainder shall be maintainable against pernors of the profits Ployd f. 59 b. in Wimbishes case So in Twins case l. 3. f. 82. It was resolved by the whole Court that Statutes made against fraud shall be liberally and favorally expounded to suppresse fraud because fraud and deceite abound more in these days then in former times where you may finde in Pennyfoots case and diverse other cases to that effect and purpose Quod alias bonum justum est si per vim vel fraudèm petatur malum injustum est Coke l. 3. s 78. a. what otherwise is good and just if it be acquired by force or fraud is evill and unjust and as Ploydon saith Covin may alter the marter though the title be good and covin to have recovery may be as well where the title is good as where it is faint and bad And therefore the Book is M. 15. E. 4.4 If a feme have cause of dower and is of Covin that the tenant shall be ousted by A. against whom shee recovereth and hath execution that her estate shall be adjudged against the Disseissee by disseisin and shall not hold it but shall be a Disseiseresse and yet the title of recovery is good and true but the Covin is the cause of it Ployd f. 59. Coke l. 3. f. 78. a. So if issue in tail who hath good cause to have a Formedon in the Descender upon discontinuance be of Covin that A. shall disseise B. against whom he doth recover he shall not be remitted although his title is good but shall be adjudged a Disseisor by reason of the Covin M. 10. H. 8. And in 19. H. 8. Where one disseised tenant in taile by Covin to the intent to enfeoff the issue in taile within age who had no cognisance of the Covin and he enfeoff him he shall not be remitted by the better opinion notwithstanding his good title and the covenous intent is the cause onely Ployd f. 51. 54. And so is it there holden by six Justices Coke l. 3. f. 78. in Fermors case And the reason there given is because he that is in by him that made the Covin shall be in the same plight as he that made the Covin and yet infants are much favored in Law It was found by office that one F. that had good cause of action of ad terminum qui praeterij◠against an infant in by descent caused one H. to disseise the Heire by Covin against whom he recovered by his Writ of Entry ad terminum qui praeterjit whereupon this Office found the King of whom the land was holden had restitution to the Land during the nonage of the heires notwithstanding the plea and averment of F. in maintenance of his title so as though the title was good yet if covin was practised by him who had title to come to it he shall not be remitted Ployd f. 48. b. 41 Ass 28. For the common Law so abhorreth fraud and covin as all acts as well judiciall as others and those who of themselves are just and lawfull yet being mixed with fraud and deceit are in judgment of Law injurious and unlawfull Coke l. 3. f. 78. a. And so Coke l. 4. f. 113. a. in Adams case A man deviseth Tenements to superstitious uses and to good and charitable uses as to teach a Grammar Schoole yet because the good and charitable uses were mixt with superstitious uses and nothing in certaine was limitted to a good use in such case the commixture of the evill use with the good use infecteth the good use as a little poyson commixed with a great quantity of Wine or as truth mixed with covin turned the goodnesse of the one into the naughtinesse of the other And 19 H. 8. 12. If a man make a disseisin with the intent to make a Feoffment with warranty although he make the Feoffment twenty moneths after yet it is a warranty commenceth by disseisin Ployd f. 51. So if one make a gift in taile to another and the Uncle of the Donor disseise the Donce and maketh a Feoffment with warranty and the Uncle dyeth and the warranty descendeth upon the Donor and then the Donee dyeth without issue the Donor bringeth a Writ of Formedon in reverter and the Tenant pleadeth the Feoffment with the warranty the Demandant shall avoyd it because it commenced by disseisin and yet the disseisin was not immediately made to the Donor but to the Donee but by it his reversion was devested and yet warranties are much favoured in Law It is a rule in the Civill law Neminem ex suo dolo calliditate relevari that no man is releived by his fraud and deceite And it is an erudition in the common Law Fraus dolus nemini patrocinari debent Fraud and deceit ought not to be patronized in any Coke l. 3. f. 78. b. There is dolus bonus and dolos malus say the Civivilians dolos bonus is when a man doth devise any plot to entrap a theef or offendor and this cannot properly be called fraude but solertia and cunning and such a kind of cunning is practised in war-fare by which more victories are atcheived then by maine force as Tacitus plura consilio L. 1. An. quam vi geruntur But dolus malus is a subtile devise used to the deceiving another or the Law and this deceit doth not in out Law escape punishment but affordeth a double remedy against such who endamage others by deceit either a Writ of deceite or action upon the case As if I. present one to a Church being Patron and one T. disturbeth me and another in my name purchaseth a Quare impedit without my knowledge against the said T. and after causeth the Writ to be abated or I non-suite in the action I may have a Writ of deceit against him 55. E. 3. Quare impedit 37.20 H. 6.20 And an action of the case is maintainable against him who sueth an originall in the name of the Plaintiff against his will 7. H. 6.45 So if any one forge a Statute Merchant in my name and sue a Capias thereupon whereby I am arrested and had in execution a writ of deceit lyeth against him 19. H. 6.44 So if the guardian of an infant vouch one by covin who is not sufficient or pleadeth a bad plea whereas he might have pleaded a better the infant shall have a writ of deceit against him and recover the full value in damages 9. E. 4.34 A writ of deceit was brought against an Attorny for acknowledging satisfaction whereas his Master was not in truth satisfied 11. H. 6.34 In a Praecipe quod reddat if the Sheriff returne the
enfeoffed him long before the judgment in fee absque hoc that he was seised at the time of the judgement or any time after whereupon issue was taken and the Jury found the Feoffment and further sayd That it was made by covin to defraud the Plaintiff and other Creditors and it was judged for the Plaintif vide ibidem plura and fol. 166. Fraus praesumitur si insolitae clausulae apponantur Reg. J. C. and Coke l. 3. f. 81. Clausulae insuetae semper inducunt suspicionem As there in Twins case A Deed of gift was in part adjudged fraudulent because an unusuall clause was inserted in it and for that the Deed contained that the gift was made honestly truely and bona fide vide ibidem plura Dona clandestina sunt semper suspiciosa Coke l. 3. f. 81. Gifts in secret are alwayes subject to the suspition of fraud which there in Twins Case was one of the reasons alledged to prove a Deed of gift fraudulent to wit that it was made in secret And so in Burrels case l. 6. f. 72. the assignment of a Lease was taken to be fraudulent because it was delivered in a secret manner to a person of meane quality And for the same reason by livery and seisin in one County the Lands in another County will not passe Noys Max f. 3. Jus fraus nunquam cohabitant simul Coke l. 10 f. 49. a. Right and fraud never cohabit or dwell together As a Recovery cannot be sayd to be by collusion where tenant in taile is in the Recovery whether he be tenant in Deed or tenant in Law as a Vouchee For the Law hath made all the reversions and remainders as incidents to his estate subject to his pleasure and he hath right and power to bar them all ibidem And Coke l. 8 f 132 b. Covin cannot be alledged in doing of a lawfull act As in a Writ of Dower against a disseisor if the Tenant plead in abatement of the Writ entry by the disseisee the demandant shall not be received to aver the entry to be by covin to abate the writ because the entry is congeable and lawfull and mixed with no wrong as it is holden in 15. E. 4. f. 4. and if a disseisor or an abator endow a feme who hath title of dower it is good because it is a lawfull act Coke l. 5. f. 30. b. Fraus meretur fraudem Ployd f. 100. and the Poet Fraus est concessa repellere fraudâ—m Fraud and subtilty deserveth fraud and subtilty and it is a lawfull deceit to repell a deceit As in 19 E. 4. f. 27. In appeale of many who pleaded not guilty a Venire facias was awarded against them all and the Court perceiving that the prisoners were in opinion to sever in the challenge of the whole pannell of subtilty to stay the tryall at that time and that every prisoner would challenge as many as they might without danger to wit twenty and that every of them shall have his entire number of twenty so that one shall not be excluded of his number by the challenge of the other and that there was but a small number of men of sufficiency then in the City to be sworne so as by that subtilty the tryall should be stayed for the present The Court agreed that the first pannell and the Tales should be divided and made severall for every one of the prisoners And accordingly said to the prisoners We perceive your subtilty well enough which deserveth little favour of the Court and therefore tell us whether you will agree in your challenges for if you will not the Clarke shall sever the pannell and then they all agreed in their challenges and after the inquest was full evidence was given and there found and one subtilty prevented and repelled by another And this fraud by the Canonists is called Benus dolus of which they have this rule Frangenti fidem fides frangetur eidem To him who breaks his faith no faith is to be shewne And instance in the example of Salomon who did use such cunning betweene the two Harlots in searching out who was the true and naturall Mother of the childe Fulb. 2. l. f. 23. Vendens eandem rem duobus falsarius est Reg. I.C. Coke l. 1. f. 45. a. A man selling the same thing to two is a falfe dealer and therefore in the grant of the King it is dishonourable for him to grant the same possession to one that he or his Progenitors had granted to another for he that selleth the same thing to two persons is a deceiver Fraudis interpretatio non semper ex mente duntaxat sed ex consilio quoque desideratur Reg. I. C. Dolus circuitu non tollitur Coke l. 11. f. 74. a. nec purgatur Bacon Max. f. 3. The interpretation of fraude is not allwayes to be gathered out of the mind but also from the councell and consent and crafty dealing and deceite is not taken away nor purged by the circuity of shifting it from one to another and though covenous acts be conveyed through many hands and mediations yet the Law taketh hold of the corrupt beginning and proceeding As if I make a Feoffment of Lands held in Knights service to I. S. upon condition that within a certaine time he shall enfeoff I.D. which Feoffment of I. D. shall be to the use of the wife of the first feoffor for her joynture c. this Feoffment is within the Statute of 32. H. 8. Bacon ibidem So if one who hath an intention to sell his Land by fraud conveyeth it by deed enrolled to the Queen with an intent to deceive the purchasor and after selleth that Land to another for a valuable consideration and maketh a conveyance accordingly in this case the purchasor shall enjoy the Land against the Queene by the Statute of 27. Eliz. c. 4. For though the Queene be not excepted yet the act being generall and made for the suppression of fraud shâ—ll bind the Queen and whosoever maketh the Queen who is the Fountaine of Justice to be an Instrument of covin and fraud and upon it obtaineth Letters Patents such Letters Patents are void or if the Queen be indeavored to take away another mans right and to that end a man obtaineth Letters Patents they shall be repealed though such covin and fraud be not contained in the grant made to the Queen but appeareth onely by averrement dehors for fraud and deceite is not taken away or diminished by the subtility of alienations Coke ibidem in Magdalens Colledge case Non facies malum ut inde fiat bonum it is the Law of God thou shall not doe evill that good may come thereof Coke l. 5. f. 30. b. lib. 11. f 7. 4 a. What hath been said of truth and falsity may be said of good and evill and are so semblable that an apparent good is often mistaken for that which is reall Jun. s 14. Fallit enim vitium
by misadventure as by an Arrow at Butts this hath a pardon of course but if a man be hurt or maimed onely an Action of Trespass lyeth though it be done against the parties will and he shall be punished in the Law as grievously as if he had done it of malice Stanf. 16.6 E. 4.7 So if a Chyrurgion authorized to practise do through negligence of his cure cause the party to dye this Chyrurgion shall not be questioned for his life yet if he do onely hurt the Wound whereby the cure is cast back and death ensueth not he is subject to an Action of the Case for it Stanf. 16. So if Baron and Feme commit Felony together the Feme in regard of the subjection of her will to her husband shal neither be principal not accessary but if they joyn in committing a Trespass upon land or otherwise the Action may be brought against them both So if an Infant wanting discretion or a mad-man kill another he shall not be impeached thereof but if they do him any corpâ—rall hurt he shall be punished in Trespass 35 H. 6. 11. So in Felony if the principall dye or be pardoned the proceeding against the accessory faileth But in a Trespass if one commandeth his man to beat you and after the Battery the Servant dyeth yet you may have an Action of Trespass against the Master 17 H 4.19 Aestimatio praeteriti delicti post facta nunquam crescit Bac. Max f. 32. In penall Lawes and Facts the Law considereth the degree of the offence not as it standeth at this time when it is committed but for any circumstance or matter subsequent the Law doth not extend or amplifie the same As if a man be wounded and the Percussor is voluntarily let to go at liberty by the Goalor and after the party wounded dyeth yet it is no Felonious escape in the Goaler 11 H. 4.12 So if one conspire the death of one who after cometh to be King not being within the Statute of 25 E. 3. this is high not high Treason but otherwise it is in civill and common cases vide ibidem Plur. Ipsae etenim leges cupiunt ut jure regantur Co. l. 2. f. 25. In omnibus quidem maxime tamen in jure aequitas est Reg. I. C. In all things but especially in the Law there is equity and the Lawes themselves desire to be ruled by equity For inasmuch as no Legislators can foresee all things which may happen it was therfore convenient as Ploydon saith that that fault should be reformed by equity And is either an amplification or diminution of the Law and no part of the Law but a morall vertue which reformeth the Law for dirigens and directum are diverse things and equity is not a Law but the emendation of the Law and therefore the Lawes themselves desire to be ruled by equity As whereas the Debtor after he is become Bankrupt may prefer one and defraud others the Act of 13 Eliz. c. 7. hath appointed certain Commissioners of indifferency and credit to releive the Creditors of the Bankrupt equally and that there shall be an equall and rateable proportion observed in the distribution of the Goods of the Bankrupt among his Creditors having regard to the quantity of their severall debts so that one shall not prevent the other but all shall be in aequali jure and so we see in many cases as well at the Common Law as upon the like statutes such constructions have been made for as Cato said Ipsae etenim leges cupiunt ut jure regantur and therefore is it holden 35 H. 8. Title Testaments V. de plura in Herberts case lib. 7. Bro. 19. A man holdeth three Mannors of three severall Lords by Knights-service every Mannor being of equall value he cannot devise two Mannors and leave the third to descend according to the generality of the Acts of 32. 34. H. 8. of Wills for then it shall prejudice the other two Lords but by equall construction he cannot devise but two parts of every Mannor and so as equality shall be observed among them and so at the Common Law an equality is required as in 11 H. 7. 12. b. a man is bound in an Obligation and his Heirs and he hath Heirs and hath lands of the part of his Father and part of his Mother both the Heirs shall be equally charged vide ibidem plura Co. Com. f. 10. a. If partition be made between Parceners of lands in Fee simple and for novelty of partition one granted a rent to the other generally the Grantee shall have a Fee-simple without this word Heirs because the Grantor hath a Fee-simple in consideration whereof he granted the rent Ipsae etenim leges c. And Co. Com. f. 271. a. b. when a Feoffment is made to a future use as to the performance of his last Will the Feoffee shall be seised to the use of the Feoffor and his Heires in the mean time for the Lawes desire to be ruled by right and equity And reason would that seeing the Feoffment is made without consideration and the Feoffor hath not disposed of the profits in the mean time that by construction and intendment of Law the Feoffor ought to occupy the same in the mean time And so it is when the Feoffor disposeth the profits for a particular time in presenti the use of the Inheritance shall be to him and his Heires as a thing not disposed of Co. ibidem Co. l. 5. f. 100. a. The Commissioners of Sewers by the Statute of 6 H. 6. c. 5. and 23 H. 8. c. 5. ought to tax all equally which are in danger to be endamaged by not repairing the Banks and not him onely who hath land adjoyning to the River for otherwise the rage and force of the water may be so great as the value of the land adjoyning shall not serve to repaire the Banks and therefore the Statutes will have all who be in the same perill and are to receive commodity by it to be contributory and the statutes require equality which well standeth with the rule of equity for equitas in Bracton est quasi aequalitas and though the Owner of the Land next adjoyning to the River was bound by prescription to repaire the banks of the River yet the Commissioners ought not to charge him only with all but to take all those which have lands in danger for otherwise it may that all the country shall be surrounded before that one person onely can repaire the Banks vide ibidem plura In Fooks case Coke l 7. f. 123. b. When the King granteth any Land without the reservation of any Tenure or without any thing from thence to be rendred or the like that land by the operation of Law shall be holden of the King in Capite by the service of Chivalry according to the rate and proportion of land that affereth to one fee of Chivalry and so of more more and of lesse lesse for the
of the Law when one thing is provided for in the words that every other thing in the like kind shall be provided for in the same words And so when the words of a Statute enact one thing they enact all other things which are in the semblable degree As whereas the Statute of 9 E. 3. c 31. ordaineth that in an Action of Debt against Executors he that commeth in by distresse shall answer the said Act shall be extended by equity to Administrators for whosoever of them commeth in first by distress shall answer by the equity of the said Act because they are in the like degree So the Statute of 4 H. 4. c. 8. giveth an especiall Assise to him who is disseised and ousted of his land by force against the Disseisor and it is enacted that he shall recover against him double damages And so it is in an Assise of Nusance to turn the course of the water from the Mills of the Plaintiff with force it was adjudged that he should recover double damages and yet he was not put out of his land neither was there a disseisin but the Nusance was to the damage of his Frank-tenement and so by the equity of the said act the Plaintiff recovered double damages because the Nusance was in the like kind So the Statute of Gleucester giveth an Action of Wast c. against him who holdeth for life or for yeares and by the equity of it a man shall have an action of Wast against him who holdeth for a yeare or for twenty weeks and yet it is out of the words of the act because it is in the like degree and the cases which are of such degree in our Law are infinite Ployd f. 165. a. And there is another sort of equity which abridgeth and taketh from the letter and is a correction of the generall words Ethie 30. l. 10. and is defined by Aristotle to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a correction of a Law wherein it is any way wanting because of the generality of it which also in our Law is of much use As when an act of Parliament is made that whosoever shall do such an act shall be a Felon and be put to death and yet a man non sarae memoriae or an Infant of tender age who hath no discretion doth it they shall not be Felons c. or if a Statute be made that all persons who shall receive or give meat or drink or other aid to one who shall do a felonious act shall be accessory to the Offence and be put to death yet if one doth such an act and commeth to his wife who knowing it receiveth him and giveth meat and drink unto him she shall not be accessory nor Felon for in the generality of the said words of the Law he of non sanae memoriae nor Infant nor a Wife shall not be included and so equity correcteth the generality of the Law in those cases and the words generall are by equity abridged so the Statute of Champerty W. 2. l. 49. Arti. super Chart. contra probatos men generally do receive Lands and Tenements while the thing is in plea yet M. 16. R. 2. accord it was said by the whole Court in a Writ of Champerty that if I bargaine any lands before any Writ brought and after the Writ purchased I deliver Seisin That the Writ of Champerty doth not lye because it shall not be intended that the Bargain was made for such cause and that by equity for when he bargained and promised the land upon just consideration before any action brought against him it was his act to perform it notwithstanding the action And Costle promoter of the King brought an action of Extortion H. 21. H. 7. 16. against an under-Sheriff grounded upon the Statute of 23 H. 6. c. 10. which ordaineth that neither the Sheriff Goaler or Ministers nor any of them by colour of their Office shall take any thing profit c. of any person for fine fee or ease of prison but for the Sheriff 20 d. the Bayliff 4 d. and the Goaler 4 d. supposing that he had taken 20 d. above the same limited upon the Statute and upon demurrer it appeared upon evidence to the Court that all under Sherifs of the same county have used from the time whereof memory doth not run to have of every prisoner in their ward for suspition of Felony when they are acquitted twenty pence called the Bar fee and the twenty pence supposed to be taken were taken from the person named in the count being acquitted for a Bar-fee and the opinion of the whole Court was that it was out of the raise of the Statute though it was within the words of the Statute for that the sum of a Bar-fee was assigned to the Sheriff at the beginning by the order and discretion of the Court in respect of his labour and charge he had with the prisoners and for his attendance and for his ministry when the prisoners are brought to their delivery and so that payment was with reason and good conscience which the intent of the makers of the act was not to take away and so equity did put an exception to the generality of that text of the Statute Law So the Statute of W. 2. c. 4. ordaineth that where a man rat or dog escapeth alive out of a Ship neither the Ship nor any thing that is within it shall be adjudged wrack but all the things shall be saved and kept by the view of the Sheriff c. in the hands of those of the Towne where the things were found so that if any one can prove that they are his within a yeare and a day they shall be restored to him and whosoever doth otherwise shall be awarded to prison and remaine at the will of the King and render damages yet if the goods within the Ship be such things as will not endure for a yeare and a day the Sheriff may sell them and deliver the mony taken for them to the Towne to answer for it and that by equity though it be against the words of the said Act. So the Act of 2. E. 6. c. 14. Which giveth to the King all Lands and Tenements by any assurance conveyance given assigned or limited to find any preacher to have continuance for ever c. if the words of that act should be taken generally they give to the King al the houses and glebe Lands of all Parsons and Vicars but equity putteth in that text the exception of Parsonages and Vicarages because it was not the intention of the makers of that Act Ployd f. 466. vide ibidem plura There is another excellent use of equity which consisteth in guiding the grounds and maxims of of things which seem to crosse and thwart one another for as Sir John Doderidge English Lawyer f. 209. it is scarcely possible to make any second rule of Law but that it shall faile in some particular
consisteth in idlenesse for idlenesse is the mother of all vices and as Coke there saith principally in young men who ought in their youth to learne profitable sciences and trades which are profitable to the weale publick of which they may reape the fruites in their old age for jeunesse oisense vilesse disettense if in our youth we be idle in our old age we shall be indigent and for that reason the common Law detesteth all Monopolies which prohibit any one to work in any Lawfull trade and that appeareth in 2. H. 5. b. A Dyer was bound that he shall not use his Diers craft for two yeares and there Hull said that the obligation was against the common Law and that by God if the Plaintiff were here he should goe to prison untill he had made fine to the King and so for the same cause if an husbandman be bound that he shall not till and sow the ground the obligation is against the common Law And therefore the act of 5. Eliz. c. 4. that prohibited any person to use or exercise any craft mistery or occupation unlesse he had been an Apprentice for seven yeares doth not make provision onely to the intent that the artificers may be skilfull but that young men shall not be idle in their youth but trained and brought up in lawfull sciences and trades and so by the same reason the common Law doth not prohibit any person to use many Arts and Misteries at his pleasure for nemo prohibitur plures negotiationes sive Artes exercere untill it was prohibited by the Act of Parliament 37. E. 3. 6. That all Artificers c. are bound every one to one mistery and that none use other mistery but that he hath chosen but because that restraint of free trade was prejudiciall to the weale publick at the next Parliament it was enacted that all people should be so free as they were before that Ordinance by which it appeareth that without Act of Parliament no man can be in any manner restrained to worke in any lawfull trade Non negligentibus sed impotentibus succurrendum Reg. I. C. Vigilantibus non dormientibus jura subveniant Ployd f. 357. b. The Law helpeth and releiveth those are impotent not those are negligent As if you disseise me of my Land and then A. bringeth a Writ of right against you and you joyn the mise upon the meer right and you make default after the mise joyned he shall recover to him and his Heires for ever quit of you and your Heires for ever and if I doe not lay my claime within a yeare a day I am barred for ever for the Law succoureth those that are watchfull and not sleepy so as non-claime by a yeare and a day upon a recovery by default where finall judgement is given was a good Bar by the common Law 5. E. 3.222 by Hor. A descent cast during the Coverture where the wife is disseised barreth her not of her entry after her husbands death but if a feme-sole be disseised and then taketh an husband there a descent during the coverture taketh away her entry for it was her folly to take such an husband that entred not in time Littleton 95. Negligentia semper habet comitem infortunium Coke l. 8. f. 133. a. Sa. Turnors case An Executor of an Administrator ought to execute his office and administereth the goods of the dead lawfully truly and diligently Lawfully in the payment of all dueties debts and legacies in such precedency and order as they ought to be paid by the Law truly to convert nothing to his own use and ought not by any practise or devise to bar or hinder any creditor of his debt but ought truly to execute his office according to the trust reposed in him And diligently as in the case at bar for when the Administrators which had judgement for one hundred pounds for sixty pounds and the Plaintiff offered a release or to acknowledge satisfaction and he deferreth it to the intent that the Judgement shall stand in force by which the Plaintiff shall be defrauded of his due debt and the Administrators to convert the goods of the debt to their private use let the agreement be precedent before the recovery or subsequent since the recovery it is all one as to the creditor who is a third person for he is defrauded as well by the one as the other and the creditor who is a stranger shall loose his debt which is by the Law due to him and if any prejudice accreweth to the Administrators in this case it is in his own default for the Plaintiff would have released to them or acknowledged satisfaction but they defer it to the intent to bar the Plaintiff of his just and true debt and negligence hath allwayes misfortune or ill luck for her companion Ibidem Coke l. 2. f. 26. b. If a creditor upon a commission upon a Statute of Bankrupt either by obstinacy doe refuse or by carelessnesse neglect to come before the Commissioners within the time limited and to crave the benefit of the Act he looseth the benefit thereof for the Law releiveth those which are vigilant and not dormant for otherwise a debt may be concealed or a creditor may absent himselfe and void the proceedings of the Commissioners and every creditor ought to take notice of the commission it being a matter of record Coke l. 4. f. 10. b. in Bevills case it was said that the Act of 32. H. 8. c. 2. by expresse words extendeth onely to actuall possession and seisin and not to releive those which for so long time had neglected to have actuall seisin of their services and namely of suite which ought to be made twice every yeare and it was said that it was crassa supina negligentia which that Law did not intend to releive for as it is commonly said vigilantibus c. Ibidem Coke l. 4. f. 82. b. in Sir Andrew Corbets case who deviseth Lands to R. C. and others to have and to hold to them and the survivor of them untill such time that the summ of eight hundred pounds c. was received out of the issues rents c. for the preferment of his Daughters it was resolved though the Devisee had notice of the devise yet if a stranger had occupied the Land the Devisee ought to take notice at his perill for vigilantibus c. and none by the Law in such case is bound to give him notice as in the case of arbitrement 1. H. 7.5.8 E. 4.1 ibidem And this is the reason of a lapse incurring for want of presentment or of a warranty barring for lack of entry or of descents barring for want of claime and a title to tenant in courtesy is lost for lack of entry and that Statutes of limitation do bar actions One seised of Lands devisable deviseth that his Executors shall sell his Land and distribute the profits for the use of the poore and dyeth If a
stranger tendreth them mony for the Land and they intending to sell it more deere defer the sale for two yeares and take the profits themselves the heire for the laches and long delay may enter and put them out of the Land 38. Ass Pl. 3. 39. Ass Pl. 3. A man indebted by specialty or upon an account determined tendreth the mony to the Debtee after the day in which it was due and payable and it is refused and after mony is embased it seemeth to many that the debtor shall beare the losse although he had made tender at the very day of payment because he must say vncor prist Dyer f. 83. Pl. 76. Caveat Emptor Coke Com. f. 102. a. Let the the buyer be vigilant and wary what he buyeth for though by the Civill Law every man is bound to warrant the thing that he selleth and conveyeth yet the Common Law bindeth him nor unlesse there be a warranty either in Deed or in Law Ibi. Coke l. 4. f. 26. a. A Copy-holder who is out of possession ought not to sell his Land untill he hath gained the possession and if any one will purchase any title he is not to be favored but in such case Caveat Emptor let the buyer take heed for if any one hath a pretended right and title to Copy-hold Land bargaine and sell it to another it is within the Statute of 32. H. 8. c. 5. vide ibidem plura If I take an horse of another mans and sell him and the owner taketh him againe I may have an action of debt for the mony for the bargaine was perfect by the delivery of the horse Caveat Emptor Nay Max f. 94. If I sell my Horse to another man for ten hundred pounds who taketh his horse againe I shall have all the mony Ibidem f. 95. Qui timent caveant vitent Offi. of Exe. 251. They who feare are wary to shun dangers as an Executors office is dangerous and therefore ought to feare what encombrances fall on him and to keep goods to pay all debts if any should be concealed Non temere credere nervus est sapientiae Coke l. 5. f. 114. b. Not hastely to beleive is the sinew of wisdome and therefore the Law hath appointed the last time in the day to pay mony upon a condition that both parties may certainly meet together which is founded on the experience of the sages least any of the parties should be constrained to make a Letter of Attorny or repose confidence or trust in any other to pay it for him when he will doe it for himselfe And it is wisdome not rashly to trust any Caveat actor Reg. I. C. Let the actor beware what he doth One entreth into Bond to A. that he and A. shall stand to the Arbitrement of I. S. If A. refuse he him-himselfe shall take the forfeiture of the Bond. If a man have a Chappell which is his donation by Letters Patents and he presenteth me his clerk to the Ordinary he shal not make collation afterwards If a Parson impropriate presenteth one to a Church it maketh it disappropriate If he who holdeth his Land by homage and fealty taketh his Land of the King by office found that he holdeth it by forty shillings per annum he shall pay the rent hereafter Abundans cautela non nocet Coke l. 11 f. 6. b. An abundance of circumspection doth not hurt vide ibi Qui sentit onus sentire debet commodum Coke l. 1. f. 99. a. He who beareth the burden and taketh the paines ought to receive the profit as if a Feoffment be upon condition that if the Feoffor or his Heirs pay the sum of 20 l. or to doe any act before a certain day that they shall re-enter in this case if the father dye before the day of paymenr and the daughter for the safe-gard of the inheritance pay the mony or satisfieth the condition in this case the Son after borne shall not devest it for if the daughter had not performed the condition the Land had been utterly lost and therefore in this case a good argument may be made that the daughter shall detaine the Land for Qui sentit onus sentire debet Commodum ibidem vide Hobart Rrep fo 4. in Youngs and Radfords case Ployd f. 514. Trevilian was Tenant in tail of Tenements and he being only seised of such an estate a common recovery was had against him and Avice his wife who vouched over according to the course of common recoveries and it was found that the wife had nothing in the Tenements the husband dyeth the wife shall have nothing of the intended recompence in the case because she had nothing in the Tenements and so could lose nothing If Tenant for life or in Dower do devise the Corn growing on the ground upon the land at the time of their death this is a good Devise and he in the reversion shall not have it 4 H. 3. Devise 26. And the Statute of Merton which saith Omnes viduae possunt legare sua blada is but an affirmation of the common Law which was used in the time of H. 3. 19 H. 6. 6. A man seised of land in see in right of his wife leaseth the land to a stranger and the Lessee soweth the land and after the wife dyeth the Corn being not ripe the Lessee may devise the corn and yet his estate is determined 7 E. 3. 67. A man seised of land in the right of his wife and soweth it and deviseth the Corn growing on the ground and dyeth before it is severed the Devisee shall have it and not the wife 7. Ass pl. 19. One seised of lands in fee hath Issue a Daughter and dyeth his wife Privement Ensaint with a Son the Daughter entereth and soweth the land and before the severance a Son is born and his next friend entereth yet the Daughter may devise the Corn growing on the land If a Mannor be put in execution upon a Statute-merchant and the Conusee sow the land he may well devise the Corn growing on the ground Perkins f. 100. vide ibidem plura Qui sentit commodum sentire debet onus Cok. l. 5. f. 24. He that feeleth or reapeth the profit must bear the burthen and the charges A man leaseth an house by Indenture for years and the Lessee covenanteth for him and his Executors to repaire the house at all times necessary The Lessee assigneth it over to H. who suffereth it to decay the Lessee bringeth an action of Covenant against the Assignee and it was adjudged the action did lye in that the Lessee had taken upon him to bear the charges of reparation the annuall rent was the less which trenched to the benefit of the Assignee and he that enjoyeth the profit must bear the burthen and charges vide ibidem plura Co. l. 5. f. 100. a. The Statutes will have all those which are in perill and which are to take comodity by the
making of the banks of a River to be contributory to it for Qui sentit commodum c. Coke l. 7. f. 39. b. If a man grant a Rent-charge for life out of his land and the rent is behind and the Grantor enfeoff A. and the rent is behind in his time and after A. enfeoffeth B. and the rent is behind in his time and then the Grantee dyeth the Executor shall have an action of debt against every of them for the rent behind in his time for qui sâ—ntit commodum c. and so was it holden in Ognels case l. 4. f. 49. a. 50. Barons uses f. 27. If a man bind himself and his Heires in an Obligation or do covenant in writing for him and his Heires or do grant an annuity for him and his Heirs or do make a Warranty of land binding him and his Heires to warranty in all these cases the Heir after the death of the Ancestor is by Law charged with this Obligation Covenant Annuity and Warranty yet with these three cautions 1. That the party must by speciall name bind himself and his Heires 2. That some action must be brought against the Heir whilest the land or other inheritance rested in him unaliened except the land was conveyed away by fraud and one purpose to prevent the Suit intended against him And 3. That no Heire is further to be charged then the value of the land descended unto him from the same Ancestor c. nor to be sold out-right for the debt to be kept in extent at a yearely value untill the debt or damage be run out Neverthelesse for his false plea shall he be charged of his own lands for this Deed of his Ancestor and the reason of this charge is Qui sentit commodum sentire debet incommodum onus vide ibidem plura Dilationes sunt in lege odiosae Ployd f. 75. b. Delaies are tedious in the Law and therefore doth the Law favour Assise because they are the more speedy Suits the Law hath given as the Statute of W. 2. c. 25. in its recitall saith Et quia non est aliquod breve in Cancelaria per quod quaerentes habent tam festinum remedium sicut per breve Nove disseisinae And therefore because it is the more speedy Suit the Law the more greatly favoureth it ibidem For for speed to the Plaintiff the Jurors shal have the view before appearance by the words of the Writ And though Warranties are favoured in Law yet none shall vouch in Assise any one if he be not present and that is for the speed of the Plaintiff No. Nat. br f. 178. And a protection will not defend the party against an assise but assises are accepted by the words of protection p. 2. H. 6. 42. Bâ— protection 53. And all things and pleas which go in retardation or abatement of Assises are esteemed odious and therefore exceptions which will abate other Writs shall not abate Assises if it be so that there is a Disseisor and a Tenant for it is the substance of the Suit and therefore the misnaming of one of the Defendants shall not abate the assise if there be another Disseisin and Tenant and yet the Writ was alwaies false Ploâ—d f. 98. a. b. And if the Tenant plead Joynt-tenancy with a stranger not named although the Plaintiff confesse it yet it shall not abate his assise but for it onely for the remnant the Writ and Plaint shall stand in his force and yet the Plaint was altogether false and if there be a Disseisor and Tenant for any part then it sufficeth for other verity in the Writ or Plaint the Law requireth none and to say that one named in the Writ is dead before the Writ purchased or that there was never any such in rerum natura is alone and shall be adjudged no plea in abatement of the Writ but if there be another Disseisor and a Tenant the Writ shall be good against them Ployd f 90. a. vide ibidem plura And though in actions reall as the weight of the cause requireth there are longer times given in their proceedings then in personall actions yet it appeareth by Fortescue de lib. l. A. c. 5. 3. that they are not too long nor admitted without just cause Crebro enim saith he deliberationibus iuâ—icia matur scunt sed in accelerato processu numquam And as Hobert saith f. 133. Festinatio jâ—stitiae est nâ—verca infortunii Festination of Justice is the step-mother of mischief but many times by deliberations Judgments grow to ripenesse but in over hasty processe never yet the Demandant shall come to a finall end by these actions which he shall never do by prosecution of personall actions for the tryall of a Freehold or Inheritance Co. ep ad lectorem lib. 8. And in all cases the Law favoureth speeding of mens Causes and hateth delayes as 3 H. 6. 15. b. He that pleadeth a Record in delay as to prove the Plaintiff excommunicate must have it ready to shew but otherwise it is if he plead in bar In dilatory pleas both Defendants must joyne 12 H. 7. 1. A Plea in bar that is dilatory must be good to every common intent 8 H. 7. 9. One who is in Court ready to joyn with the Defendant may do it without processe As the Vouchee the Plaintiffs Lessor being prayed in aid of when the Defendant in a Replevin avoweth upon him or the Mesne when the Lord Paramount voweth upon him But Joynder in aid cannot be by an Attorney without processe 2 H. 6. 1. b. One who is a Debtor to the King of Record in the Exchequer if he be seen in the Court may be brought in to answer 2 H. 6 4. b. An assise of Darrein presentment was brought and it was pleaded in abatement of the Writ that the same Plaintiff had brought a Quare impedit against the Defendant for the same Church and the Court was of opinion that it was a good plea for the Quare impedit is of an higher nature for the right and possession and the Statute of W. 2. l. 5. saith that it may be in the election of one to have an assise of Darrein-presentment or a Quare impedit ergo not both And it was adjudged p. 15 Jaco that one cannot have two Quare Impedits of one Church for one avoidance Hutton f. 403. When the Law giveth a man severall remedies for a thing he cannot have both of them together as Littleton saith for then he should recover one thing twice which should be a double charge and a double vexation to the Defendant Co. Com. 145. a. as if I grant by Deed a Rent-charge to another the Grantee hath election to bring a Writ of Annuity and charge the person onely to make it personall or to distrain upon the land and make it reall but he cannot have both after the Grantee hath determined his election but this determination of election must be by action in
of Magna Charta c. 11. might enter into anothers Woods and cut the Trees for reparations of Castles but by that Statute he did restrain himself so to do Ployd 3. 22. b. vide ibidem plura A Mil-stone that is lifted up to be picked and beaten cannot be distrained for it remaineth parcel of the Mill which is a thing for the Common-weale weale 14 H. 1 25. Things brought into an Inn Faire or Market shall not be distrained 22 E. 4. 49. No more shall Cloath lying in a Taylors Shop or an Horse that is a shooing shall not be distrained for the rent issuing out of the Shop Coke Com. f. 47. a. When a man and a woman are riding on a horse or Axe in a mans hand cutting of wood and the like they are for that time priviledged and cannot be distrained Valuable things shall not be distrained for rent for benefit and maintenance of Trade which by consequence are for the Common-weale and are there by authority of Law as an horse in the Hostrey nor the materials in a Weavers Shop for making of cloath nor sacks of Corn or meal in a Mill nor in a Market nor any thing distrained for damage feasant for it is in custody of the Law and the like So Beasts belonging to a Plow averia carucae shall not be distrained and no man shall be distrained for the Instruments of his Trade or profession as the Axe of a Carpenter or the Books of a Scholar whilest Goods or other Beasts may be distrained ibidem Coke l. 10. f. 139. b. An action of the case was brought against D. and counts that D. was seised of certain lands in Kent by reason of which his ancestors and all the Ter tenants from the time whence c. have made and repaired when it shall be materiall so many perches of the walls of the Sea in K. c. and for default of repairing c. the water entred and over-flowed the lands ef the Plaintiff the Defendant traversed the Prescription and it was found for the Plaintiff and that there was a default in the Wall for not repairing by which the Plaintiff recovered Damage and a Writ awarded to the Sheriff to distrain B. to repair the wall there where it was materiall Note this judgment in an action of the case and the reason is pro bono publico for Salus populi est suprema lex and therefore is that part of the judgment in this action of the case that the Defendant shall be distrained to repair the wall ibidem Publica utilitas privatorum commodis est praeferenda Reg. I. C Publicum bonum privato est praeferendum the publick utility and good is to be pâ—eferred before private gaine and profit and therefore shall be more favourably expounded by the Law then when it is onely for private Coke comm f. 181. b. As the Tenant holdeth of the Lord by fealty and one grain of wheat c. and the Lord purchaseth part the whole shall be extinct because it is entire but if an entire service be pro bono publico as Knights-service Castle-guard Cornage c. for defence of the Realm or to repair a Bridge or a way or to keep a Beacon or to keep the Kings Records or for advancement of Justice and Fence as to aid the Sheriff or to be Constable of England though the Lord purchaseth part the service remaineth and so it is pro opere devotionis pietatis for works of devotion and piety Coke comm f. 149. a. Coke l. f. 63. a. In the Chamberlain of Londons case the Inhabitants of a Village may make Ordinances or by-Lawes for the reparation of a Church or of an high-way or any such thing as is for the publick good generally and in such case the greater part shall bind all without any custome So Corporations cannot make Ordinanccs or constitution or By-lawes without custome or charter unlesse it be for things which concern the publick good as reparations of Churches common-waies or the like So in Corporations such Ordinances or Bylawes are allowed by Law which are made for the due execution of the Lawes and Statutes of this Realm and for the good or due government of the body Corporate And the Ordinance of the Mayor Aldermen and Comminalty of London that all Citizens Free-men and strangers shall not put any broad cloath to sale within the City before it be carried to Blackwell Hall to be viewed and searched so that it may appear to be vendible and that hallage be paid for it to wit 1 d. was good and allowable by Law because it was for the better execution of the Statutes made in that behalf without deceit and also that the assesment of the said peny for hallage was good and reasonable because it was pro bono publico vide ibidem plura Coke comm f. 181 b. If a Charter of Feoffment be made and a Letter of Attorney to four or three joyntly and severally to deliver Seisin two of them cannot make Livery because it is neither by the four or three joyntly nor any of them severally but if the Sheriff upon a Capias directed to him make a Warrant to foure or three joyntly and severally to arrest the Defendants two of them may arrest him because it is for the execution of Justice which is pro bono publico jura publica privato promiscue decidi non debunt and publick Lawes ought not promiscuously to be decided by the private ibidem Coke com f. 165. a. If a Castle that is used for the necessary defence of the Realm descend to two ot more Coparceners this Castle might be divided by Chambers and Rooms as other houses be but yet that it is pro bono publico defensione regni for the publick good and defence of the Realm it shall not be divided for the right of the Sword as Britton saith which suffereth not division that the force of the Realm do not fail so much but Castles of habitation for private use and that are not for the necessary defence of the Realm ought to be parted between Coparceners as other houses ib. And for the same reason a woman shal not be endowed of a Castle that is maintained for the necessary defence of the Realm because it ought not to be divided and the publick shall be preferred before the private but of a Castle that is for private use and habitation she shall be endowed Co. com f 31 b. vide ibidem plura So a protection cum clausula volumus is of two sorts the one concerneth services of War as a Kings Souldier c. the other wisdome and counsell as the Kings Ambassador and Messenger pro negotiis regni both these being for the publick good of the Realm private mens actions and suits must be suspended for a convenient time for the publick is to be put before the private but the cause of granting the protection must be expressed in the protection to the end
quae quidem diaturnitate temporis efficit L. 1 de repub f. 2. ut nonnulla toleranda esse videantur que contra jus boni aequi esse videantur we are to yeild something to custome which certainly by long continuance of time doth effect that some things may seem to be tolerated which seem to be against the rule of right and equity so Moses tolerated and suffered the Jewes libello repudii by a bill of refusall to forsake their wives though the indissoluble bond of matrimony was ordained of God and this dispensation as our Saviour saith was permitted for the hardnesse of their hearts because their hearts through inveterate custome were hardned against that divine ordinance Consuetudo more utentiam approbata vim legis obtinet Bract. l. 3. c. 1. Coke l. 4. f. 21. Consuetudo est altera lex a custome approved by the manner of the users obtaineth the force of a Law and is another Law Arist 1. R. for those things are done by custome as the Phylosopher saith which therefore we doe because we have often done them and when a reasonable act once done was found to be beneficiall and agreeable to the people then did they use and practise it often and so by the reiteration and multiplication of the same became a custome and so being without interruption time out of mind practised for the quiet by the approbation of the people obtained the vigor of a law for as Bo. princep legum Sod de repub l. 1. c. 1. pulus morum magister the Prince is the master founder of laws ordinances and the people of manners and customes Just l. 1. tit 2. which accordeth with the description of Justian quod quisque populus sibi jus constituit id ipsius proprium civitatis est what every people ordaine to be a Law to themselves that is a proper and municipall Law of the City Cicer. in La. Maxima est vis consuetudinis saith the eminent Legist of Rome the force of custome is very great in so much that as by the Law of nature consuetudo est altera natura so by the Law of Nations consuetudo est altera lex for as Coke l. 5. Epist ad lectorem of his own knowledge professeth that at this time all Kingdomes and common Wealths are governed by Laws and that every Nation hath his peculiar and approved Customes which are the most usuall binding and firmest Lawes so as it is said per varios casus artem experientia fecit it may be said per varios usus legem experientia fecit Co. com f. 97. b. There are particular Customes and generall Customes particular Customes are such as are used in some certain County City Towne or Lord-ship and generall Customes are such as are used throughout all England which are the common Law of England In his preface for as Davis the common Law of England is nothing but the common Custome of the Realme and Coke the common Law is nothing else but a common opinion generally received and Finch the common Law is a Law used by prescription throughout the Realme of England Finch Nomot f. 75. Ployd f. 95. a. The common Law is nothing else but common use and the mirror of Justice c. 1. l. 9 The Law is ancient uses warranted by Scriptures and is called the common Law Dav. pref because given to all in generall and to conclude this point with this definition which seemeth to me to include all Custome is a reasonable act iterated multiplied and continued by the people L. 1. R. c. 3. de temps dont memoire ne court time out of minde Aristotle saith injustum est apud omnes praeter consuetudines patrias quicquam agere all Nations hold it unjust to doe any thing against the Customes of the Country which is a principle in our Law that Custome is another Law Ennig Frag. and that we may say with the ancient Roman Poet as he sung of the Romans Moribus antiquis stat resque Britanna virisque The state of England standeth on the ancient Law And though it be jus non scriptum and onely written in the memory of man yet as Sir John Davis it doth far excell our written Lawes namely our Statutes or Acts of Parliament which is manifest in this that when our Parliament have altered In his preface and changed any fundamentall point of the common Law those alterations have been found to be so inconvenient for the Common-Wealth as that the common Law hath been in effect restored againe in some points by other Acts of Parliament in succeeding ages as it is a fundamentall principle of the common Law Quod haereditarium jus omne per feodum simplex transit that all estates of inheritance are fee-simple which the Statute of 13. Ed. 1. de donis conditionalibus intended to limit and to give every man power to create a new estate in taile and establish a perpetuity of his Lands so as the same should not be aliened or letten but during the life of tenant in taile whereupon these inconveniences ensued purchases defeated leases evicted and other estates and grants made upon good consideration avoided creditors defrauded of their just debts and offendors enboldened to commit capitall offences c. who therefore were first barred by common recoveries and then docked by fines 15. E. 3. 14. by Herb. Coke l. 4. Ep. ad lectorem So the Statute of non-claime of 34. E. 3. is against a main point of the common Law whereby ensued the universall trouble of the Kings Subjects and therefore was it altered by the Statute of H. 7. c. 24. Coke ibidem 32. So by the grounds of the Law Lands were not devisable before the Statute of 32 34. H. 8. concerning which dayly experience teacheth us that many subtile and intricate questions arise concerning the construction of Wils to the ruine of many and hindrance of multitudes Coke ibi And it is a politick axiom that the alteration of any fundamentall point of the common Law which is ratified by use and experience is most dangerous and therefore we ought to vote and resolve with all the Earles and Barons in Parliament holden in the twentieth yeare of H. 3. against the Bishops who would have introduced the civil Law Nolumus leges Angliae mutare we will not change the Lawes of England To which purpose I add the asseveration of Cicero ante nostram memoriam terterum morem Frey Cil. de repub ac majorum instituta retinebant excellentes viri before our memory excellent men did retaine the custome of the ancient and the institutes of their elders Optimus legum interpres Consuetudo Co. l. 2. f. 81. a. The best expounder of the Law is custome If land holden by grand Serjanty be aliened without licence it is forfeited by the Common Law because the service of the body cannot be transferred to another 14 E. 3.
sub eo ipse sub nullo nisi tantum sub Deo Bract. l. 1. c. 8. The King is the Vicar and Minister of God upon earth every one is under him and he under none but onely under God and therefore the Lands which are in the Kings possession are free from tenure for a tenant is he which holdeth of some superior Lord by some service so as the King cannot be a tenant because he hath no superior but God for as Coke l. 8 f. 118. It would be against common right and reason that the King should hold of any or doe service to any of his Subjects and therefore all Lands holden of him mediately or immediately Co. com f. 1. and for which reason Cowell thought it not so proper in the Kings case to say that he is seised in dominico suo ut de feodo as if feodum in our Law was taken as it is in the fendall Law onely for the Lands held in Services whereas feodum as Bracton Britton Fleta and Littleton tels us idem est quod haereditas Davis case of Tenures f. 30. Neither can the King be a Joynt-tenant with any though it be of land or other things that he had in his body naturall for none can be equall with him And therefore if two purchase lands to them and their heirs and one be made King they are no more Joynt-tenants but Tenants in Common 3 Eliz 339. Nay Acts of Parliament do not bind him unless they concern the Common-wealth or he be specially named 4. E. 4 21. 1 Eliz. 223. And no man can declare against the King but he must sue by way of Petition Ployd f. 241. b. 18 Eliz 498. He hath the property of all Goods that are nullius in bonis and shall have all Tythes out of Forrests and places out of any Parish for rex est persona mixta cum sacerdote In a Writ of Error upon false Judgment given for the King no Scire facias shall go forth ad audiendum errores for the King is alwaies in Court and that is the cause that the form of Entry is in all Suits for the King in the name of his Attorney generall F.N.B. 21. b. Rex semper praesumitur attendere ardua negotia regni pro publico bono omnium Coke l. 5. f. 56. a. It is alwaies presumed that the King doth attend the weighty and hard things of the Kingdome for the publick good of all And therefore have the Grants of the King a more beneficiall interpretation then the Grants of the Subject that may attend their private Affaires which are alwaies taken more strongly against them As if the King do grant lands to I.S. and his Heirs and in truth I. S. is the Kings Villain that shall not enfranchise the Villain by Implication The same Law is of an Alien born 17. E. 3. 39. The Advowson of Pravondry holden of the King was aliened to an Abbot and his Successors and that the Successors shall hold the Provandry to their own use The King shall seise the Advowson for Alienation in Mortmain and destroy the Appropriation for he shall not be ousted of his right of Advowson by Implication So 2 R. 2. 4. If two be indebted to the King and the King release to one it shall not discharge the other for no prejudice shall accrue to the King by construction or implication upon his Grant more then he truly intended by it ibidem So if a release be made by him of all demands the right of Inheritance shall not be released 6 H. 7. 15. If the King granteth lands in fee upon condition that they do not alien it is good but in all these cases it is otherwise in the case of a common person And in many cases the King who claimeth by a Subject shall be in a better case in respect of the Prerogative incident to his Royall person then the Subject himself by whom he claimeth As if the King have a Rent-seck by Attainder of Treason or by Grant he shall distrain for it not onely in the land charged but also in all his other lands and yet the Subject by whom he claimeth shall not distrain If a Subject have Recognizance or an Obligation and after is outlawed or attainted the King shall seise all the land of the Conusor or Obligor where he himself can have but the Moyety the King shall take advantage of a Condition broken without demand whereas a common person who claimeth under the King cannot re-enter for non payment of Rent without demand made And if the King purchaseth a Lordship of which land is holden by posteriority the King shall have the priority vide ibidem plura in Knights case Davis f. 45. If a common person grant rent or any other thing which lieth in grant onely without limitation of any estate by the delivery of the deed only a Frank-tenement shall passe 17 E. 3. 43. a. If the King grant rent or land without the limitation of any estate the Grant is meerly void for the incertainty 7 Ass pl. 1. and the Grantee shall not be Tenant at Will as it is ruled in the case of Alton Wood. Ployd f. 243. The Grant of the King is taken more strongly against a stranger and more favourable to the King although the thing granted come to the King by purchase or descent Whereas it is otherwise of a common person As a grant of a Mannor by the King the Advowson shall not passe without speciall words So the King may grant a thing in action which another cannot So if the part of an entire thing commeth to the King the Common Law hath given him all As if an Obligation be made to two and one is outlawed the King shall have all the duty So he shall have an entire Horse or Oxe which one who is outlawed holdeth in Common ibidem So Coke l. 9. f. 129. b. Quando jus domini regis subditi in simul concurrunt jus regis preferri debet when the right of the King and the Subject concur and meet together the right of the King ought to be preferred as in Dame Hales case Baron and Feme Joynt tenants of a term for years the Baron is felo de se the Baron shall forfeit all Ployd Com. 262. vide ibidem plura in Quicks case The King may mend his Declaration that term that it is put in p. 13 E. 48. So the King may wave his Demurrer and traverse the plea of another M. 28 H. 6. f. 2. So if the King grant lands in fee with Warranty against all the Patentee shall not have value in recovery without express words to have value So the King may make a Lease to a stranger this reservation is good and the stranger shall distrain for it or have an action of debt after the Lease determined M. 35. H. 6. f. 36. Ployd f. 243. a. So for arrearages of Rent-charge granted to the King he may distrain in all other
lands of the Grantor H. 13 E. 4. f. 6. So if the Title appeareth to the King upon Plea of other parties the Court of Office shall adjudge it for the King though he be not party to the Issue Ployd f. 243. b. vide ibidem plura And as the Common Law cannot bind the King no more can private Customes and therefore the custome of that if one pawn Goods that he that hath the pawn shall hold them whose soever they be untill the mony for which they were pawned be paid unto him shall not bind the King where his goods were pawned by a stranger So sale of goods made by a stranger â—n Market-overt shall not alter the property nor bind him M. 3. H. 6. 28. And if a man have wrack of the Sea if the Goods of the King be wracked he shall gain no property by it against the King And so it is of Prescription to have goods waved or estrayed M. 35 H. 6. 27. Ployd ibidem vide plura Nullum tempus occurrit regi Ployd f. 243. No Prescription of time runs against the King As if right of entry descend to the King and the Disseisor dieth seised it shall not take away the entry of the King M. 35. H. 6. 27. So if a Villain alien his land the Lord may enter when he pleaseth Coke com f. 41. b. If Tenant for life or Tenant in Dower grant over his or her estate and the Grantee dieth there shall be an Occupant but against the King there shall be no Occupant because nullum tempus occurrit regi Coke l. 6 f. 29. b. At the Common Law if any one had usurped upon the King and his Presentee had been admitted instituted and inducted for without Induction the Church is not full against the King yet the King may have a Quare Impedit and by it he shall remove the Incumbent for no act of the Bishop or any other can bar the King of his right nullum tempus c. vide ibidem plura Ployd 243. a. Coke l. 7. f. 28. If Title to present by Lapse be devolved to the Queen and the Patron presenteth a Clark who is admitted instituted and inducted and dieth the King hath lost his Title to present by Lapse for the King had but unam unicam presentationem hac vice which cannot be extended to the second avoidance and the statute de prerogativa regis quod nullum tempus occurrie regi is to be understood when the King hath a certain permanent interest and not when he hath an interest specially limited vide ibidem plura in Baskerviles case All which proceed from the Prerogative the Common Law giveth the Prince which is so large Nom. f. 85. Davis in his Preface as Sir Henry Finch saith that you shall find that to be Law almost in every case of the King that is Law in no case of the Subject And therefore Sir John Davis confidently averreth that the Common Law doth excell all other Lawes in upholding a free Monarchy which is the most excellent form of Government exalting the Prerogative Royall and being tender and watchfull to preserve it And yet maintaining all the ingenuous libertie of the Subject Davis ibidem But though the Common Law allow so many Prerogatives to the King yet shall he not hurt others by them As if a Bridge be repairable by the Subject and is in decay the pardon of the King shall not excuse him who ought to do it because others to wit the Subjects of the Realm have an interest in it So if one have Jewels in pawn for ten pounds and he that putteth them to pawn is attainted the King shall not have the Jewels unless he pay ten pounds for his Prerogative will not prejudice another Ployd f. 487. a. b. So the Earle of Kent had the return of certain Cattell in Replevin in 13 R. 2. and the Proprietor of the Cattell was attainted There it is holden that the Earle of Kent shall retaine the Cattell against the King untill he is satisfied for the thing and the Prerogative of the King will not discharge them of the return because the Prerogative will not give prejudice to another vide ibidem plura in Nichols case Rex est caput salus reipublicae a capite bona valetudo transit in omnes Coke l. 4. f. 124. b. The King is the head and safety of the Common-weale and as from the head health is conveyed to the body so from the King safety is conveyed to the Common-weale which is the body of the Kingdome for from him Justice is distilled to all by which all men are preserved in peace and safety as Ployd f. 242. b. All justice tranquility and repose is derived from him as the Fountain of it and therefore by Bracton he is called Author juris L. 3. c. 9. the Author of right by whom right is separated from injury equity from iniquity that all subject to him may live honestly that not one should hurt another and that to every one what is his be by a right contribution restored And by Homer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Gods Schollars and by a more divine Poet Gods themselves especially because they sit on Gods own Seat when they minister justice to the people Dixi quod dii estis and that the Rules of Justice be their principall Lesson Which like the Sun in the Firmament to which Justice is rightly resembled he is to communicate to all the Creatures of his Common-weale And as the King is the Sun and Fountain of Justice so are the Judges and Professors of the Law but Conduit Pipes to convey the streames of his Justice throughout all the Kingdome L. 4 Ep ad l. A. Chron. 19.6 7. Whereupon Sir Edward Coke hath this observation from the divine Text videte Judices Take heed you Judges what yee do for yee judge not for man but for the Lord who is with you in the Judgment wherefore let the fear of the Lord be upon you take heed and do it for there is no iniquity with the Lord our God nor respect of persons nor taking gifts And so saith he must every Judge be just without respect to give every man his own Protectio trahit subjectionem subjectio protectionem Coke l. 7. f. 5. Calv. case Protection draweth subjection and subjection protection Legiance is the mutuall Bond and Obligation between the King and his Subjects whereby Subjects are called his leige Subjects because they are bound to obey and serve him and he is called their leige Lord because he shall maintain and defend them And as there ought to be a mutuall connexion of dominion and fidelity between the Lord and Tenant ita quod quantum debet domino ex homagio tantum illi debet dominus ex dominio as Glanvil saith so that how much the Tenant oweth the Lord by homage and service so much doth the Lord owe the Tenant by his power and
in Auditor Carles case offices committed to many are more safely discharged And therefore by the Statute of 32. H. 8. it is provided that there shall be two persons named to the Kings highnesse which shall be called the Auditors of the Lands of his graces Wards and the King cannot constitute one onely for the subject by the Act hath an interest in it and more safely are the businesses dispatched which are committed to many and therefore though the words of the grant be conjuctim divisim alterius eorum diutius viventi yet are they not materiall for if an office be granted to two pro termino vitarum suarum without more by the death of one of them the grant shall be void for being an office of trust there shall be no Survivor And in this case no Survivor shall be because the Act saith there shall be two persons and though the King may constitute one at one time and another at another time yet he that is first chosen shal have no judicial voice until the other is constituted and to this purpose there may be a Survivor of one of the persons to whom another shall be added Plus vident oculi quam oculus nemo potest supplere vicem duarum personarum Coke l. 4. f. 46. a. Two eyes see more then one and no person can supply the place of two and f. 118. a. As if a baron be made Knight of the Garter or Warden of the Cinque Ports hee shall have but three Chaplaines in all notwithstanding the Statute of 21. H. 8. for though he hath diverse dignities yet is he the same person to whom the attendance is to be made for it is a difficult matter for one man to supply the place of two and though it be a ground quando duo jura in una persona conveniunt aequum est ac in diversis when two rights concur meet together it is all one as if it were in several yet this Act was allwayes construed strictly against non-residencies and pluralities as a thing very prejudiciall to the service of God and instruction of the people and therefore if a Bishop be translated to an Arch Bishopwrick or a Baron be created an Earle and now hath both those dignities yet by this act he shall have but so many Chaplaines as an Arch-Bishop or an Earle may have for the reason abovesaid Ibi. Minister legis non tenetur in executione officij sui sugere aut recedere Coke l. 9. f. 68. a. in Makalies case An Officer or Minister of Justice is not bound in the execution of his office to flye or to goe back and therefore an Officer and Minister of the Law in the execution of his office if there be any resistance and assault is not bound to flye to the wall c. as other Subjects are for the life of the Law is more favored then the life of man and the execution of the Processe of Law and the offices of the conservators of the peace are the soul and life of the Law and the meanes by which Iustice is administred and the peace of the Realme guarded Officia judicialia non concedantur ante quam vacant Coke l. 11. f. 4. in Auditor Curles case judiciall offices ought not to be granted before they are void and therefore was it resolved in that case that the grant made by the King to John Churchill and John Tooke in reversion after the death of T. and C. was void partly because it was a judicial office for these Auditors are one of the Iudges of the Court and as none can give any judgement of things which happen in future so none can be a Iudge in future and great inconvenience would thereupon ensue for he who at the time of the grant of the reversion may be able and sufficient to supply the place of judicature and administer Iustice to the Subjects of the King before the office fall may become unable and insufficient to performe it and it was resolved that neither the office of master of the Wards nor of the Survivor nor of the Attorney of the same Court may be granted in reversion because they are judiall offices But ministeriall and secular offices may be granted in fee in tail for life or at will as the offices of the Constable of England Marshall Vis-count or the Warden of the Fleete and the reason is because those temporall officers have their offices in their naturall capacity and the King in policy may suppresse and revive those offices pro loco tempore and by consequence may limit temporall estates in them Davis f. 45. b. So the office of keeping of our Lady of Lincolne was entailed and a Formedon brought upon that guift of the Office by the Issue in taile 18 E. 3. 27. The Office of one of the Chamberlains of the Exchequer was entailed 1 H. 7. 8. The Office of a Fostership was entailed 4 H. 7. 10. 9. Coke comm f. 20. a. vide ibidem plura Aliquis non debet esse judex in propria causa immo iniquum est aliquem suae rei esse judicem Coke l. 8. f. 118. a. No man ought to be Judge in his own case yea it is a partiall and unequall thing that any one should be a Judge in his own matter In Dr. Borhams case in which case one of the reasons there alledged was that the censors had not power to commit Dr. Bonham because they could not be Judges Ministers and Parties Judges to give sentence Ministers to make summons and Parties to have the Moyety of the forfeiture for no man can be a Judge in his own case one cannot be a Judge and an Attorney 3 E. 6. f. 65. Dyer If any act of Parliament give to any one power to hold or have Cognizance of all manner of pleas before him arising within his Mannor of D. yet he cannot hold plea to which he himself is a party for it is unequall for any one to be a judge in his own matter vide ibidem plura Yet in some cases one shall be his own Judge Pay-master and Carver As if the Lessor covenant to repair the house if he do not and the Lessee do it he may pay himself out of the rent 12 H. 8. 1. Guardians of a Church at their own costs repaire the Church and for amends detain ten load of stones of the Parishioners for which the Successors Guardians bring an action of account and adjudged that they may lawfully detain them 37 Eliz. Metholl and Winge So Taylors and Hostlers may detain the Robe or Horse c. untill reasonable satisfaction is given If one to whom the Testator is indebted will not receive Goods in recompence then it is lawfull for the Executor to pay him with his own money and retain so much Goods of the Testator for it may be there is a penalty which will be forfeited before that he can sell the Goods of the Testator Dyer f. 2. pl.
their Predecessors but excuse themselves and answer for their proper fact and demeanor for it is a common erudition that the Defendant in his answer and bar ought either to traverse or confess and avoid the Plaintiff vide ibidem plura Yet in Treasons and Felonies one shall be punished for anothers offence and by our Law and not without good reason the Sons of them which are disloyall Subjects and Traytors to their Prince are barred from the Inheritance of their Ancestors that their Fathers infamy may alwaies accompany them and that their life should be a punishment to them and their Fathers fault a continuall corasive and that is done because their Fathers Ulcers are feared in them and that being bred and brought up of naughty Parents they will be prone to do the like and this penalty is used in the nature of a medicine that by suffering shame he may be deterred from crime and therefore as Coke com 5. f. 391. l. by his attainder of Treason or Felony is the blood so stained and corrupted that his Children cannot be Heires to him nor to any other Ancestor And therefore where the Tenant is outlawed of Felony it is in the Lords election to have a Writ of Escheat supposing that his Tenant was outlawed of Felony or that he died without Heir for by the attainder the blood is corrupted 48 E. 3. 2. But it seemeth by Nichols case that the party attainted ought to be dead before the land can escheat for according to Dyer and Brian in the Kings case after the attainder and till Office be found the Fee-simple shall in facto be in the person of the attainted so long as he shall live for as he hath a capacity to take lands of a new purchase so he hath power to hold his ancient possessions and he shall be Tenant to a Praecipe and if he died before Office found and the land be held of the King the land shall go to the King in nature of a common Escheat Ployd 477. Nichols case but in case of Treason the King shall be presently after the attainder in actual possession without Office found by the Statute of 33 H. 8. c. 20. If the Father purchaseth land and his eldest Son is attainted of Felony and dieth the next in degree of descent and worthiness of blood unto the Son attainted shall not have the land but it shall escheat to the immediate Lord of whom the land is held for the blood is corrupted otherwise it had been if he had died in the life of the Father having no Issue Dyer 48. An account is brought against two the one entreth into an account and it is sound against him it shall bind both 44 E. 3. 18. One is imprisoned in the Marshalsey and a stranger breaketh the Prison and the prisoner escapeth the Marshall shall be charged for the whole debt If I have a way over the lands of twenty men and one of them stoppeth the way in his land I shall have an action against all those over whose lands the way was 33 H. 6. 26. by profit A rate is put upon a Town for the fees of a Knight of the Parliament The Beasts of him hath paid his part are taken for the residue he shall not have a Replevin but the beasts shall be sold to pay his duty 11 H. 4. 2. In quo quis delinquit in eo de jure est puniendus Co. com f. 233. b. In what one offendeth in the same by right he is to be punished As if any Keeper kill any Deer without warrant or fell or cut any Trees or under-woods and committeth them to his own use it is a forfeiture of his Office for the destruction of the Deer is by a mean the destruction of the Venison And so it is if he pull down the Lodge or any house within the Park for putting of Hay into for feeding of the Deer or such like it is a forfeiture and the reason why the Office shall in such and the like case be forfeited because in what one offendeth in that he shall be punished Dispensatio mali prohibeti est de jure Domino regi concessa propter impossibilitatem providendi de omnibus particularibus dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata Coke l. 11. 88. a. The dispensation of a prohibited evill is by right granted or allowed to the King because of an impossibility for providing for all particular things and a dispensation is a provident relaxation of an evill prohibited recompensed with profit and utility As where an Act of Parliament which generally prohibiteth a thing upon penalty which is popular or where it is onely given to the Queen may be inconvenient to divers particular persons in respect of the person place or time c. therfore in such causes the Law hath given power to the Queen to dispense with particular persons But when the wisdome of Parliament hath made an Act to restrain pro bono publico the Importation of any forrein Manufactures to the intent that the Subjects may apply themselves to the making of the said Manufactures c. and by it maintain themselves and families Now for private gaine to grant the importation of them to one or divers against the said Act is a Monopoly and against the Common Law and against the end and scope of the Act it self vide ibidem plura in the case of Monopolies Coke l. 5. f. 28. Cawdrys case By the Ecclesiasticall Lawes of this Realm a Priest cannot have two Benefices nor a Bastard be a Priest but the King by his Ecclesiasticall power and jurisdiction may dispense with both these because they are mala prohibita and not mala in se The King by a clause of non obstante may dispense with the Statute-law and that if the Statute saith that dispensation shall be meerly void 2 H. 7. Grants 73. Finch f. 82. Coke comm f. 120. a. A party or Minister disabled by reason of any corrupt Contract c. by the Act of 13 Eliz. which is an absolute and direct Law cannot be dispensed withall by any Grant c. with a non obstante as it may be when any thing is prohibited sub modoâ— as upon a penalty given to the King Coke l. 4. f. 35. b. in Bozums case when the King by the common Law cannot in any manner make a grant there a non obstante of the common Law will not make the grant good against the reason of the common Law as if the King granteth a protection in an assize or Quod impedit with a non obstante of any Law to the contrary that grant is void for by the common Law a protection doth not lye in any of these cases 39. H. 39. But when the King may lawfully make a grant but the common Law requireth that he may be so instructed that he be not deceived there a non obstante may supply it as when the King
holden of the King and if it be the King shall have it for the Wardship of him during the nonage and upon the same reason was this principall also founded Thesaurus competit domino regi non domino libertatis nisi sit per verba specialia Fitz. Coro 281. 436. It is a firm conclusion in the Common Law that Treasure belongeth to the Lord the King and not to the Lord of the Liberty unlesse it be by speciall words Adrianus Caesar made a Law that if any man found treasure in his own ground himselfe should have it if in another mans ground he shall give the half to the owner of the Soil if in a publick place he shall devide it equally with the Treasury but now and long time ago the Civill Law hath transferred it to the Prince which is thus defined by Justinian Vetus depositio pecuniae vel alterius metalli cujus non extat modo memoria ut dominum non habeat An ancient deposition or hiding of money or some other metall of which for the present no memory is extant that it may have a Lord or owner Wherein the Common Law of this Realm accordeth with the Civill Law which holdeth that Treasure hid in the earth not upon the earth nor in the Sea and Coyne though not hidden being found is the Kings which we call Treasure trove Stanf. f. 10. 27 Ass pl. 19. 10. Eliz. Ployd 322. And Mr. Stanfords reason why such Treasure should belong to the King is un-answerable and it is this Quia dominus rei non apparet ideo cujus sit incertum est because the Lord and Owner of the thing doth not appear therfore whose it is it is uncertain 22 Ass pl. 19. And it is a currant rule in all Nations In ambiguis casibus semper praesumitur pro rege and in doubtfull cases it is alwaies presumed and taken for the King Many other benefits and prerogatives there be which the Common Law of England giveth to the King in regard of the exceeding charge and cost he is at in the defending and governing the Common-wealth of which I may plainly say as Cicero said of the Romans That all the Revenue and Treasure is scarce able to Lips de Mag. Rom. l. 1. c. 4 5. maintain the Army both by Sea and Land and therefore hath need of many Prerogatives and benefits It were tedious to touch them all and will onely name some which I deem pertinent to the precedent principle As the Mines of Gold and Silver which by the Law of Nations as well as the Common Law belong to the King and Prince for to whom should Gold and Silver appertain but to him that hath authority to coyne it as his own according to the answer of our Saviour Matth. 22. v. 20. Date quod est Caesaris Caesari and therefore moneta dicitur a monendo quia impressione nos monit cujus est Moneta Davis f. 19. And therefore the Judgment given in the case between the Queens Majesty and the Earle of Northumberland seemeth to be sound and grounded upon invincible reason although the Grant was Omnium singularum Minerarum of all and singular Mines for the diversity is there well taken by Wray that there be two sorts of Mines Mines royall and base Mines and Mines royall may be sub-divided into two other kinds those which contain in them Silver or Gold entirely or which have Brass or Copper in them and have some veines of Gold intermixt both these belong to the Prince for the Gold as the more worthy draweth to its self the less worthy But such as have in them meerly Brass Copper or Lead may belong unto a Subject by a special Title And that in such case the Proprietor of the land and Soil shall have the Ore and Mine and not the King by his Prerogative which was the opinion of all the Judges and they all also agreed that a Mine royall be it of base Mettal or pure Gold or Silver may by grant of the King be severed from the Crown and granted to any other for it is not an incident inseparable to the Crown but the King may sever it by apt and precise words but not by the words of all and singular Mines Ployd f. 333. 335. vide ibidem plura in the case of Mines There is another speciall Prerogative which the King hath in the Sea for the Sea is not onely under the Dominion of the King as it is said 6 R. 2. Fitz. protection 46. The Sea is of the legiance of the King as of the Crown of England but is also his proper Inheritance and therefore the King shall have the land gained out of the Sea Dyer 226. Also the King shall have the great possessions of the Sea as Whales Sturgeons c. which are royall Fishes and no Subject can have them without special grant of the King Prerog regis c. 10. Stanf. 37 38. And the King shall have wild Swans as volatilia regalia upon thâ— Sea and the Braches of the Sea Coke l. 7. f. 17. in the case of Swans So the wreck of the Sea is a perquisit royall Coke l. 5. 107. Sir Henâ—y Constables case And upon this reason before the Statute of 18 E. 3. no Subject might pass beyond the Seas without speciall licence of the King but there it is enacted that the Sea shall be open to all Merchants And all Havens and Ports quae sunt ostia Janua regni appertaine to the King because he is custos totius regni F.N.B. 113. a. And the King ought by right to save and defend his Subjects against the Seas as against his Enemy And therfore the Commission of Sewers was awarded by the King by vertue of his Prerogative royall before any Statute made in such case extendeth not only to the walls and banks of the Sea but also to all navigable Rivers and Fresh-waters F. N. B. 113. a. And in the Statute of 25 H. 8. c. 10 The King by reason of his Prerogative royall ought to pâ—ovide that navigable streams be made passable And the City of London by the Charter of the King have the River of Thames granted to them and purchased another Charter by which the King granted to them solum fundum of the said River by force of which Grant the City receiveth the rents of them which fix posts or make Wharfs or other Edifices upon the Soil of the said River so as the King hath the same Prerogative in the Braches of the Seas and navigable Rivers and fresh-waters so high as the Sea floweth and refloweth in them as he hath in Alto mari And though the Civillians say that Flumina portas publica sunt ideoque jus piscandi omnibus commune est in portu fluminibusque that Rivers and Havens are publick things and therefore the right of fishing is common to all in Rivers and Havens which rule is found in Bracton l 2. c. 12. Yet by the
a Bond or a Deed Coke com 253 b for the Law hath a speciall regard to the safety and liberty of man If one make me swear to surrender my estate unto him and I do so afterwards this is a Disseisin to me 14 Ass pl. 20. One imprisoned untill he maketh an obligation at another place and after he doth so when he is at large it is by duresse of imprisonment 21 E. 4. 28. If I threaten you in one County to make an Obligation of twenty pounds and after I find you in another County and demand the Obligation the Obligation is avoidable because it hath respect to the first threatning Kelleway f. 52. b. vide ibidem 2 marriage procured by duresse to be avoidable If a stranger threaten A. to make a Deed to B. A. shall avoid the Deed by such threatning Coke l. 2. f 9. B. as well as if B. himself had made the threatning but it is no plea without making the Obligee party to the plea. If the hand of any man be drawen by compulsion and the weapon in his hand killeth another it shall not be felony Ployd f. 18. a. Modus conventio vincunt legem Coke com f. H. 41 b. Manner and Covenant overcome the Law As to every Tenant for life or for years by Law are incident three kinds of Estovers House-boot which is twofold aedificandi ardendi Plow-boot estoverium arandi and lastly Hay-boot that is estoverium claudendi and these Estovers must be reasonable and therefore are they caâ—â—ed rationabilia estoveria and those the Lessee may take upon the land without any assignment unless held or restrained by a speciall Covenant for Modus conventio vincunt legem ibidem Coke l. 2. f. 73. b. Though Recoveries and Fines do extinguish all other Rights and Titles yet the Covenants and Conditions shall be saved for modus c. vide ibidem plura in Cromwels case Coke l. 7. f. 28. a. In Maunds case a rent granted to one and his Assignes pro consilio impendendo it may be assigned over by the expresse words of the Grant which granteth it to him and his Assignes though otherwise it could not for modus c. The Law doth not determine to whom the tender shall be made when the parties themselves expresly agree to whom it shall be made Dy. As it is resolved in Goodales case l. 5. f. 97. a. That the payment to the Assignee had not been good because the Heires Executors and Administrators are expresly named and not Assignes as Littleton upon a Mortgage upon condition that he pay to the Feoffee or his Heires the tender ought to be made to the Heir and not to the Executors because the Heir was expresly named Glanvil saith Generaliter est verum quod conventio vincit legem Magna Charta conventio legi dorogat An agreement overcometh and barreth the Law and Ployd f. 29. a. the manner and form of the Gift altereth the Law As if houses let for years be overthrown by tempests and wind the Law will excuse the Lessor in wast but if he had covenanted to repair them and leave them well repaired at the end of the term an action of Covenant will lye against them A Termor did covenant and agree pro se executoribus to repair and maintain the houses and to find principall Timber which is decayed by the default of him or his Executors and dieth and the house is burnt in default of the Executors and it was adjudged â—hat a Writ of Covenant in this case will lye against the Executors and that damages should be recovered of the Goods of the Testator and yet this hapned by casualty Dyer 324. but the reason is Modus c Fulb. l. 2 f. 52. And Dyer 33. The Lessee of a Meadow did covenant and agree to keep and maintain the banks in good repair and the said banks were drowned or overflowen by high water or suddain flood yet the Lessee is bound to repair and maintain them because of his Covenant but according to the opinion of Fitz. and Shelley because the decay of the banks were the act of God he ought to have convenient time to repair them If I be bond to I. S. to entermarry with such a Daughter before such a day and before the day often tender my self to the Daughter of the Obligee to marry her and she refuseth yet I have forfeited my Obligation Perk. f. 146. b. vide ibidem plura Sheep are letten and the Lessee covenanteth to render the poles at the end of the tearm if they dye of Murren he shall answer for them 40 E. 3. 2. Et sic interpretari concordare leges legibus est optimus interpretandi modus And so to expound and to make Lawes to agree together is the best manner of expounding is the generall rule given by Sir Edward Coke when the grounds and authorities of the Law seem to be at difference and variance between themselves Coke l. 8. f. 169. a. and which Mr. Ployden also declareth that Maximes by reason ought to be conferred and compared the one against the other although they do not vary or by reason ought to be discussed what thing is more neer to the Maxime or the mean between the Maximes and what not Ployd f 29 a. Verba fortius acciptuntur contra proferentem Bac. Max. f. 9. words are to be taken strongest against the Speaker which rule as he saith is drawn out of the depth of reason for first it maketh a man watchfull in his own business and grants And secondly it is the Author of much quiet and certainty because it favoureth conveyances executed taking them beneficially for the Grantees and Possessors as also because it maketh an end of many doubts concerning the construction of words for if the intention of the parties should only be picked out every Judge would have a severall sense wheras by this rule they may know the Law more certainly And this rule hath a speciall force in Grants according to the ground Quaelibet concessio forâ—issime contra danatorem interpretanda est Coke com 183. a. As if lands be letten and a rent granted the generall intendment is that an estate for life passeth but if the Habendum limit the same for years or for life or at will the habendum doth qualifie the generall intendment of the Premises and the reason is because every mans grant shall be taken by construction of Law most forcible against himself and the reason thereof given by the Civilians is because the Grantor might have expressed his meaning in more full large and manifest words and therefore when the Grant is incertain and the words of the Grant ambiguous the Grant must be taken most strongly against the Grantor As if a man grant an Annuity out of certain land and he hath no land at the time of the Grant yet the Grant shall charge his person T. 9. H. 6. 12. by Babington And if a Deed
of debt for the arreaâ—ages before the coverture yet when as the Statute giveth to the Baron an Action of debt for the arrearages the words shall be taken with effect and shall be construed for the arreages due before It is a rule in the Law that verba restringuntur ad habilitatem personae vel ad aptitudinem rei Bac. Max. f. 14. Generall words are to be restrained to the condition of the person or fitnesse of the thing as if a man grant to another common inter metas bundas villa de Dale and part of the vill is his severall and part of his wast common the Grantee shall not have common in the severall yet this is the strongest exposition against the Grantor so by all the precedent rules and grounds it appeareth that the rule that words shall be taken more strongly against the Grantor doth yeild to them as the more worthy and equitable vide ibidem plura where this rule with its differences and exceptions is amply and accurately discussed The grant of a common person shall be taken more strong against him but the grant of the King shall be taken more strong against a stranger and more favorable for him Ployd f. 243. a. As a Mannor granted by the King the advowson shall not passe without speciall words 2. H. 7. 8. So the King may grant a thing in action Ibidem And if the King grant a Mannor or Land without limitation of any estate the grant is void for the incetrainty and the Grantee shal not be tenant at the will of the Lord Davis Rep f 45. vide ibidem plura This rule hath no place in Acts of Parliament Verdicts Judgements or Devise Bacon f. Max. 21. Expressio eorum qâ—ae tacite insunt nihil operatur Coke l. 4. f. 73. b. The expression of those things which are covertly implyed worketh nothing for the expression of a clause which the Law implyeth operateth nothing as in 30. Ass Pl. 8. A Lease is made to two for terme of their lives diutius eorum viventi and after they made partition and the one dyeth and he in reversion entereth and his entry adjudged lawfull notwithstanding the said words diutius eorum viventi for without those so much was covertly implyed by the Law 17 E. 3. 7. Hulls case whereupon Coke giveth this observation that in case of lease for life it is more beneficiall for the Lessor to have the joynture severed then to have it continue but otherwise it is in a Lease for yeares for if a man makes a Lease for yeares to two with a proviso that if the Lessees dye within the terme that the terme shall cease the Lessees make partition or one alieneth his part and dyeth the Lessee shall not enter into his part that is dead but the Grantee or the Executors of the Lessee shall 〈…〉 So if the King maketh a Lease for yeares rendring rent without limiting of any place or to whose hands it shall be paid the Lessor may by the Law pay it either to the receipt of the Exchequer of the King or to the hands of the Bailiffs or receivors of the King whom the King hath authorized to such purpose and therefore the usuall and speciall limitation of the payment of rent at the receipt of the Exchequer c. doth import no more then the Law will imply and therefore nihil operatur Ibidem Coke l. 8. f. 26. b. If the King reciting that another holdeth the Mannor of D. for life granteth the said Mannor to B. for his life in this case the Law implyeth that the second grant shall begin and take effect after the determination of the first grant and therefore there is no incertainty in the grant though it be not expressed so for the expression of a clause which the Law implyeth operateth nothing ibidem in the Earle of Rutlands case Coke l. 10. f. 39. a. By the Statute of 32. H 8. Tenant in taile may make a Lease for three lives or ten yeares and by the Statute of 4. H. 2. c. 24. he may levy a fine and by the Statute of 32. H. 8. c. 36. by it bar the issues and therefore if a man make a guift in tail and further grant that he may lease for life or for yeares or levy a fine with proclamations to bar the Issues nihil operatur for when one maketh a tacit guift in taile he giveth those incidents to it Ibidem And therefore are such conditions and expressions called by Sir Francis Bacon clausula vel dipositio inutilis an unprofitable clause and disposition and to no use because the act or the words do express no more then the Law by intendment would have supplyed and that therefore the doubling and iterating of that and no more then which the conceite of the Law doth in a sort prevent and preoccupate is reputed nugation And thâ—refore if a man devise Land at this day to that they must worke some thing and not be idle and frivolous in Edward Foxes case wherein it was his Son and heire it is void because the disposition of the Law did cast the same upon the heir by descent 32. H. 8. Gourd 39. Ber. And yet if it be by Knights service Land and the heire within age if he take by the devise he shall have two parts of the profits to his own use and the guardian shall have the benefit but of the third Brooke devise 41. But if a man devise Lands to his two Daughters havnig no Sons then the devise is good because he doth alter the disposition of the Law for by the Law they shall take in coparcenary but by the devise they all take joyntly Dyer 12. Bacon f. 74.75 vide ibidem plura Yet Littleton saith it is well done to put in such clauses to declare and expresse to the lay people which are not learned in the Law what the Law is in such cases Co. lib. 4. f. 73. b. Expresum facit cessare tacitum Coke com f. 183. b. A matter or thing expressed causeth that to cease or to be of no effect which by intendement of Law was implyed and not expressed As if one grant Lands to two without expressing what estate they shall have they have a joynt estate for terme of their lives but if a Lease be made to two Habendum to the one for life the remainder to the other for life this doth alter the generall intendement of the promises so if a Lease be made to two Habendum the one moiety to one and the other moiety to the other the Habendum doth make them tenants in common for that which is expressed doth make that which is secretly intended to cease Ibidem for as he in another case saith if the generall words should stand without any qualification then the speciall words should be altogether vaine Coke l. 8. f. 154. in Edward Althans case quod vide Coke Com. f. 210. a. b. If the Feoffee in mortgage before
the day of payment make his Executors and 〈…〉 dye and the heire enter into the Land as he ought c. the Feoffor ought to pay the monies to the Executor because the Executors as he saith l. 5. f. 99. a. represent the person of the Testator for all Goods and Chattels but if the condition upon the Mortgage be to pay the Mortgagee or his heires the mony c. and before the day of payment the Mortgagee dyeth the Feoffor cannot pay the mony to the Mortgagee but the payment ought to be made to the heire for expressum c. and the Law shall never seek out a person when the parties themselves have appointed one for designatio unius est exclusio alterius the appointment of one is the exclusion of the other But if the condition be to pay the mony to the Feoffee his Heires or Executors then the Feoffor hath election to pay it either to the Heire or Executor Coke com ibidem It is a sure ground in the Law expressum facit cessare tacitum Davis 45. in the case of Tenures and therefore the expresse reservation in Letters Patents excluded the reservations and implication in Law as if the King in his Letters Patents reserveth no tenure it shall be a capite tenure but if another tenure be expressed that shall prevaile as Coke l. 6. f. 6. where in a Patent the words of the Tenendum were Tenendum de nobis per servittum unius rosae pro omnibus servitij and wheras it was objected that no tenure can be without fealty yet in this case fealty that is an incident to all services shall be admitted to stand with the words and that then the tenure so expresly reserved was so compleate that it might well exclude the Knights service tenure which otherwise the Law would have implyed Davis Ibidem where it was also resolved that although the expresse tenure be void yet no tenure by implication of Law shall arise against the expresse tenure of reservation And so in the case of a void Habendum which standeth upon the same reason it was adjudged in B.R. between Higs and Crosse 33 and 34 Eliz. which in Bucklers case is cited by Coke l. 2. f. 55. Tenant for life maketh a Lease for years and after granteth the reversion to A. Habendum from a day to come for life after the day the Lessor for years atturneth in that case the Habendum is void and that void Habendum maketh void the whole Grant and excluded the implication of Law in the Premisses and no Estate shall pass by implication of Law in the Premisses against the express limitation of the partie in the Habendum Davis ibidem A man maketh a Lease rendring rent and doth not say to whom the rent shall be paid this by implication shall be to the Lessor and his Heirs But if the words be to the Lessor the Heir shall not have it Dyer 45. 12 Eliz. 3. c. So as an Estate by implication shall be controlled by an express limitation But if I grant to another a rent which I have in fee the grant shall be for life but if I say further Habendum after the death of I. S. there all shall be void Ployd 52.156 So if the King granteth lands by Letters Patens Habendum from a day to come there the whole grant is made void by the Habendum coke l. 5. f. 93. Barwicks case He in the reversion for life gtanteth his Estate Habendum after Michaelmas and after Michaelmas the Tenant attornes yet resolved the grant is void though if there had been no Habendum it had been good by the Premisses of the Deed coke f. 2. c. 55. Davis f. 26.27 Coke l. 7 f. 41. b If the Father by Deed indented in consideration of a hundred pounds paid by his son covenanteth to be seised to the use of his son there no use shall be raised to the son if the Deed be enrolled by the statute of 26 H 8. c. 10. for that it is in the nature of a bargain and sale and that which is expressed shall cause that which is implied to cease ibid. Coke l. 4. f. 8. a. in Nokes case It was resolved by the whole Court that an express Covenant doth qualifie the generality of the Covenant in Law and restraineth it by the mutuall assent of both parties which shall extend to no further then the express Covenant Quia clausula generalis non refertur ad expressa because a generall clause implyed in Law hath no reference to an express and particular Covenant in deed Yet Quadam tacita habentur pro expressis As if the Father Tenant by Knights-service enfeoff his son and heir within age it is not necessary to aver by collusion for it is apparant Ployd Winbichs case and 27 H. 8. Dacres case 33 H. 6. 14 c. So if I covenant to stand seised to the use of my Wife Son or Cosin that shall well raise a use without any express words of consideration for sufficient consideration appeareth because paternall love and affection appear If in a Lease the express Covenant is that the Lessee and his Executors shall repaire the house demised This shall not excuse the Assignee who by an implyed Covenant in Law adherent to the Estate is tied to repair it Coke l. A Warranty in Law is not distroyed by an express Warranty as if a man lease for life rendring rent and further bindeth himself and heirs to Warranty there the express Warranty shall not take the Warranty in Law but he may choose which he pleaseth Coke l. 4. f. 81. a. vide ibidem plura Lex neminem cogit ad impossibilia Coke com f. 231. b. l. 5. f. 75. a. The Law compelleth no man to impossibility If a Deed remain in one Court it may be pleaded in another Court without shewing forth for the Law doth not compell any one to impossibilities ibidem If a Lease be made upon condition that the Lessee dwell upon the lands demised the lease being for forty years and he dieth at the end of ten years yet the Executor shall enjoy the land because the condition is become impossible Et nemo tenetur ad impossibilia Dod. No man is bound to impossibilities 37 38 Eliz. If a man make a Lease for years of woods and it is covenanted that the Lessee shall leave the woods in as good plight as it was at the time of the Lease made and during the term the woods fell down by suddain tempest the Lessor shall not have an action of Covenant because it is impossible the Lessee shall perform it Perk. f. 142. b. Coke l. 1. f. 98. a. Coke com f. 206. a. If the condition of a Bond be impossible at the time of making the Condition the Condition is void because impossible and the Bond good As if a man be bound in an Obligation c. with Condition that if the Obligor doth go from the Church of S. Peter
the poor and the twenty pounds to the Queen and therefore doth the Statute of 3 Jac. c. 4. give a more speedy remedy for the said twelve pence yet shall they not be punished but upon one of them Yet when the latter affirmative Statute is contrary to the precedent Statute in matter the former abrogateth the latter as by the Statute of 33 H 8. c. 23 it is enacted that if any person being examined before the Councell of the King or three of them shall confess any Treason misprision of Treason or Murther or be to them vehemently suspected he shall be tried in any County where the King pleaseth by his Commission and after by the Statute of 1 2 P. M. c. 10. it was enacted That all trialls hereafter to be had for any Treason shall be had according to the course of the Common Law and not otherwise That latter act and though the latter words had not been had abrogated the first because they were contrary in matter But that doth not abrogate the Statute of 34 H. 8. c 2. of the triall of Treasons beyond the Seas notwithstanding the words are in the negative because it was not contrary in matter for it was not triable by the Common Law Dyer 132. Stanf. 89. 90. So the Statute of 1 E. 6. of Chanteries being in the affirmative doth alter the Statute of H. 2. c. 41. which giveth a Cessavit cantaria also in the affirmative for the one is contrary to the other in matter vide plura Coke l. 9. f. 63. a. But whensoever Lawes are contrary in quality that is where the first is a materiall or express affirmative and the latter an express or materiall negative and when the first is a materiall or express negative and latter affirmative there the latter Law doth abrogate the former As the Statute of 5 E. c 4. which prohibiteth every person to use or exercise any craft mystery or occupation unless he hath been an Apprentice for seven years doth alter the Common Law by which any one may in any manner worke in any lawfull Trade without any service precedent for without an Act of Parliament no man can be restrained to worke in any Trade Coke l 11. f. 54. a. in the Taylors of Ipsiches case And to conclude to this Argument with the generall ground given by Sir Edward Coke l. 1. 11. f. 67. a. That for that Acts of Parliament are established with such gravity and wisdome and the universall consent of all the Realme they ought not through any strained construction out of the generall and ambiguous words of a subsequent Act be abrogated as where the Statute of 16. R 23 c. 5. enacteth that all the Lands and Tenements of any one attainted in a Praemunire shall be forfeited to the King in the case of one Prudgion Pasch 21. Eliz. being tenant in taile of certaine Lands and Tenements who was attainted of a Praemunire the question before all the Judges of England was whether the estate taile was a bar or no and it was resolved by all the Justices that those generall words had not repealed the Statute de donis conditionalibus but that onely he shall forfeite them for his life and that the issue in taile should inherit vide ibidem plura Lex non patetur fractiones divisiones Statuum Coke l. 1. f 87. a. The Law will not suffer fractions and divisions of estates As if a man make a lease for life upon condition that if he doth not pay twenty pounds that another shall have the Land that future limitation is void Ployd f. 25. c. M. 18. H. 8. 3. And if after the Statute of 1. R. 3. before the Statute of 27. H. 8. A man had made a Feoffment to the use of one for life or in taile and after to the use of another for life or en-taile and after to the use of another in fee they in the Remainder might not make a Feoffment nor grant their estates by the generall words of that act for then there should be a fraction and division of estates which the Law will not suffer vide ibidem plura in Corbets case Coke l. 3. f. 32. b. If a man be seised of a Mannor to which a Leet waife or stray or any other hereditament which is not of any annuall value is appendant or appurtenant there by a devise of the Mannor with the appurtenances those shall passe as incidents to the Mannor for in that the Statute enableth him by expresse words to devise the Mannor by consequence it enableth him to devise the Mannor with all incidents and appendants to it and it was never the meaning or the intention of the makers of the Statute that when the Devisor hath power to devise the principall that he shall not have power to devise it that was incident and appendant to it but that the Mannor c. shall be dismembred and fractions made of things which by legall prescription have been united and annexed together Ibidem for the Law will not permit such factions in Estates Coke com f. 147. b. If a man hath a rent-charge issuing out of certaine Land and he purchaseth any part of the Land to him and his heires the whole rent-charge is extinct because the rent is entire and against common right and issuing out of every part of the Land and therefore by purchase of part is extinct in the whole and cannot be apportioned Coke com 309. b. If the reversion be granted of three acres and the Lessee agree to the said grant for one acre this is good for all three and so it is of an Attornement in Law if the reversion of three acres be granted and the Lessee surrender one of the Acres to the Grantee this Attornement shall be good for the whole Reversion of the three Acres according to the grant Apices juris non sunt jura Coke com f. 2 83. b. nimia subtilitas reprobatur in Lege Coke l. 4. 4â— b. The Law of England respecteth the effect and substance of the matter and not every nicity of forme or circumstance and too much subtility is reproved in the Law As it was alledged for an exception in the Enditement that the Enditement was taken before I. S. Coronatore in comitatu praedicto and not de comitatu praedicto or comitatus praedicti and every Coroner of one County is a Coroner in every County of England but not of every County but it was not allowed for the Coroner in the County c. shall in all reasonable intendement be taken for the Coroner of the County and so it is used in the Writ de coronatore elegendo ibidem vide plura Coke l. 5. f. 120. 122. It is a rule in Law that Enditements ought to be certaine but there are three manner of certainties the first is to a common intent and that sufficeth in Bars which are to defend the party and excuse him the second is to a generall
may have a Quare impedit against another if shee be disturbed of her presentment by turne so cannont Joyn-tenants or tenants in common F. N. B. 34 I. For equality of partition among Coparceners a rent granted shall be a Fee-simple without the word heires Coke com f. 10. a. Coke com 102. a. Homage ancestrell is a speciall Warranty in Law and the Lands generally which the Lord hath at the time of the Voucher shall be lyable to execution in value whether he hath them by descent or purchase but in the case of an expresse warranty the heire shall be charged onely with such Lands as he hath by descent from the same Ancestor so in this case Firmior potentior est operatio legis quam dispositio hominis Lease upon condition that if it happen that the Lessee make any wast in or upon the Premisses it shall be lawfull for the Lessor to re-enter and the Lessee suffereth the house to fall in default of covering and reparations Dyer and Wash said that the Lessor might re-enter for such wast is punishable by the statute of Gloucester for destructionem facere in domibus Dyer 281. b. and so it is if he suffer wast to be done by a stranger Doct. Stud. l. 2. c. 4. yet if the Tenant had been bound in an Obligation that he shall do no wast he shall not forfeit his Bond by the wast of a stranger for greater is the operation of the Law c. A man is seised of three Mannors of equall value and taketh a wife and she taketh one entire Mannor for her Dower which is charged with a rent she shall hold it charged otherwise it is if she had recovered her Dower by a Writ of Dower and had had a third part of each assigned to her Inutilis labor sine fructu non est effectus legis Non licet quod dispendio licet Sapiens incipit a fine Et lex non praecipit in utilia Coke com f. 127. b. The Law commandeth no vain chargeable and unprofitable things As a Villain by the Law shall not have an appeal of Mayhem against his Lord for in an appeal the Mayhem man shall onely recover damages and if the Villain in this case recovereth damages against his Lord and thereupon hath execution the Lord may take it that the Villain hath in execution from the Villain and so the recovery void inutilis labor stultus and unprofitable labour is foolish and idle which the Law prescribeth not Coke com f. 197. a. Tenants in Common of an Hawk and an Horse shall joyn in Assise for otherwise they would be without remedy for one of them cannot make his plaint in an Assise of the Moyety of an Hawk or Horse because the Law will never inforce a man to demand that which he cannot recover as the Moyety of an Hawk or an Horse or any other entire thing for Lex neminem cogit ad vana in utilia Coke com f. 319. b. If a Lease be made for term of life the remainder to another in tail the remainder over to the right Heirs of the Tenant for life and Tenant for life granteth his remainder in fee to another by his Deed the remainder shall presently pass without any Attornment for none can atturn but himself and it were in vain that he should atturn upon his own Grant for quod vanum est lex non requirit Coke l. 5. 84. a. Where a man is in custody of the Sheriff by process of Law and after another Writ is delivered to him to take the body of him who is in custody presently he is in his custody by force of the second Writ by judgment of Law although he make not an actuall arrest of him for to what purpose shall he be arrested of him who is and was before in his custody for the Law prescribeth no fruitless things Actus legis nemini facit injuriam Coke com 178. a The Act of Law doth injury to none As if the land out of which a rent-charge is granted be recovered by an elder Title and thereby the rent-charge is voided yet the Grantee shall have a Writ of Annuity because the rent-charge is avoided by course of Law So if Tenant for another mans life grant a rent-charge by Deed to one for one and twenty years Cestuy que use dieth the rent-charge is determined yet may the Grantee have during the years a Writ of Annuity for the arrearages incurred after the death of Cestuy que use because the rent-charge did determine by the act of God and course in Law which wrong no man ibid. Coke l. 5. f. 87. a. If the Defendant in debt dieth in execution the Plaintiff shall have a new execution by Elegit or Fieir facias because otherwise the Plaintiff should lose his debt without any default in him and the act of God and the act in Law will not prejudice any one Trewgrijard being a Burgess of the Parliament who was taken upon an Exigent post capias and yet upon his Writ of priviledge of Parliament the Sheriff let him go at large for the King and the Realm hath an interest in the body of every Subject and the Common-wealth shall be preferred yet the party of the Parliament may be taken in execution again after the Plaintiff shall not be prejudiced in his execution by the act of Law which doth no man wrong neither is the Sheriff chargeable because his Office consists chiefly in the execution and service of writs and is sworn to do it Dyer 60. Lex plus respicit acta sine verbis quam verba sine actis Coke l. 3. f. 26. The Law respecteth more acts without words then words without acts As at the Common Law if lands be given to Baron and Feme in taile or in fee and the Baron dieth there the Feme cannot devest the Frank-Tenement out of her by any verball waiver or disagreement in pais as if before any entry made by her she saith that she waiveth and altogether disagreeth to the said state and that she never will take or accept of it yet the Frank-tenement remaineth in her and she may enter when she pleaseth and waive it in Court of Record for the Law more respecteth Acts without words then words without Acts and therefore if she entreth and taketh the profits although she say nothing it is a good agreement in Law And so it is adjudged in Mich. 34 E. 1. Avowry 232. That if a man take a distress for one thing yet when he cometh in Court of Record he may make an Avowry for what thing he pleaseth a multo fortiori when a Frank-tenement is vested in him it cannot be devested by nude words in pais and with it accordeth 17 E 3. 6. 17. Where the Baron alieneth his lands and retaketh the estate to him and his wife in taile the Baron dieth the Lord of whom the land was holden by Knights-service supposing that the Baron died sole
re-entry is good if the other party confesse the condition If twelve be sworn and one depart another of the pannell by consent may be sworn and with the eleven give verdict The Court in a Quare impedit by consent may give longer day then is limited by the Statute of Marlebridge The Statute of 2. E. 3. 20. E. 3. provide that neither for the great Seale or the petty Seale Justice shall be delayed yet when the matter concerneth the King onely if he command it it may be stayed F. N. B. 21. b. Tenure at this day may be created by consent of all notwithstanding the Statute of Quia emptores terrarum 27. H. 8. By speciall consent of parties re-entry may be made for default of payment of the rent without demande of it Dyer 78. vide by all which cases it appeareth that consent of parties altereth the forme and course of Law ibidem Coke l. 5. f. 40. Electio semel facta placitum testatum non patitur regressum 20. H. 6. 24. Coke com f. 146. a. An election once made and testified by pleading suffereth no returne As if a Rent-charge be granted to A. and B. and their heires and A distraineth the Beasts of the Grantor and he sueth a Replevin A. avoweth for himselfe and maketh conusance for B A. dyeth B. surviveth B. shall not have a Writ of Annuity for in that case the election and the avowry for the rent of A. barreth B. of any election to make it an Annuity ibidem Coke l. 4 f. 5. b. in Vernoms case If the Baron discontinue the Land of his wife and dyeth and the wife bringeth a Writ of dower against the discontinuee and recover the third part shee is by it estopped to bring a cui invita for by the Writ of Dower shee claimeth Title of Dowâ—r onely and therefore shall be estopped to claime any other right by a cui invita 10. E. 3. double Plea 8. 10. E. 3. Scire facias 13. F. N. B. 194 17 Ass Pl. 3. For when shee bringeth her Writ of Dower and hath judgement to have the third part of all by it shee affirmeth that shee hath but title of Dower and by consequence no estate and therefore shee shall be estopped to claime any part of it of which shee hath demanded by her Writ to be endowed and an acceptance of rent by her Deed indented concludeth the feme of her right 11. H 7. 10 vide ibidem plura in Christians case But here a diversity is to be observed that a man may have several remedies for a thing that is meerly personal or meerly reall As if a man may have an action of account or an action of debt at his pleasure he bringeth an action of account appeareth to it and after is non-suite yet he may have an action of debt afterwards because both actions charge the person the like case is of an assize of a writ of entry in the nature of assize and the like Coke com f. 146 a. Multa conceduntur per obliquum quae non concâ—duntur de directo Coke l. 6. f. 47. a. Many things are granted by the by which are not directly granted As when a Bar is pleaded in a reall or personall Action as a release c. in a forrain County there the Jurors which try it shall assesse damages according to the profits of the Land in another County so by that meanes enquire of things locall in another County for many things are granted by the by c. And when they try the matter of the Bar upon good and pregnant evidence they ought to finde all dependants upon it as damages c. vide ibidem plura Dispositio â—e interesse facturo lest inutilis Bacon f. 56. The grant of a future interest is vaine and void for the Law doth not allow of grants unlesse there be a foundation of an interest for the Law will not accept of Grants of Titles or of things in Action which are imperfect interests much lesse will it allow a man to grant or incumber that which is no interest at all but meerly future As a Writ of Annuity was granted by a prebend after collations admissions and institutions but before installation or induction which though it was confirmed by the ordinary who was the Patron also was adjudged void because he had but jus ad rem and a future interest but not in re for he shall not be said a prebendary to all intents nor at the Common Law without the reall possession which is by induction Dyer 221. Pl. 18. A. maketh a Lease of Land for years to B without reservation of the Woods and Trees the Lessor cannot sell all the Woods and Trees for the Woods and Trees are parcell of the Lease and passe to the Lessee as well as the Land if they be not excepted upon the Lease for all the fruites and profits coming from the fruitfull Trees belong to the Lessee and the shadow and also the branches and loppings for fire or enclosure of fences Dyer 90. Pl. 8. If I grant unto you that if you enter into an obligation to me of one hundred pounds and after procure me such a Lease that then the same obligation shall be void and you enter into such an obligation unto me and afterwards doe procure such a lease yet the obligation is simple because the defeasance was made of that which was not 20 Eliz. 19. H. 6.62 So if I grant unto you a rent-charge out of white-acre and that it shall be lawfull for you to distraine in all my other Lands whereof I am now seised and which I shall hereafter purchase although this be but a liberty of distresse and no rent save onely out of white-acre yet as to the Lands after to be purchased the clause is void 27 E. 3. If I covenant with my Son in consideration of naturall Love to stand seised to his use of the Lands I shall hereafter purchase the use is void 25. 27. Eliz. So if I devise the Mannor of D. by speciall name of which at that time I am not seised and after I purchase it except I make some new publication of my will my devise is void Ployd Rigdens case vide Bacon ibidem plura f. 57.58 Non refert an quis assensum praebat verbis an rebus factis Coke l. 10 f. 52. b. It mattereth not whether a man giveth his assent by words or by things themselves and Deeds Whereas the assent of an Executor is necessary before any legancy can be had for that debts are first to be paid and that the Executor must look to it at-his perill Offi. of Exec. 234. the assent consent and agreement of John Morris the Executor to the Legacy of William Taylor and Elizabeth his wife did appeare in that at the speciall instance and request of the said Morris the said William Taylor and Elizabeth his wife did release the said Legacy to the said Morris
first because he requested it which implyeth an assent secondly because he accepted it which also implyeth an assent for it mattereth nor whether one giveth his assent by words or by things themselves and deeds vide ibidem in Lampeis case As if the Baron accept the Grant of a reversion that amounteth to an Attornement 44. E. 3. Fines 37. Littleton so 37. H. 6. 17. he which hath interesse termini to wit a future interest cannot by expresse words surrender it but the acceptance of a new Lease shall drowne it and in 7. E. 3. 50. The Lord demanded an heriot and the heire delivereth a Beast in which himselfe hath property in his own right to the Lord that amounteth to a guift Ibidem N.S. seised of Mannors for the preferment of Winifâ—id his wife and Anne his Daughter covenanteth to stand seised to the use of himselfe c. for life the remainder in taile to A. his Daughter with a proviso that if he shall be disposed to determine c. the said uses it shall be lawfull for him so to doe by writing indented under his hand and seale subscribed by three witnesses and to limit the said uses to any other and N. S. after by indenture subscribed by three witnesses in consideration of a joynture to his second wife covenanted to stand seised to the use of himself his second wife and it was resolved though there was no expresse signification of his purpose to determine c. the former uses yet his last Indenture to stand seised to himself and his second wife should enure to the determination of the former uses c. and that by it ipso facto the former uses did cease and also inure to the raising of other uses c. quia non refert an quis intentionem suam declaret verbis an rebus ipsis vel factis because it is no matterwhether one declareth his intention in words or in the things themselves or deeds for by the limiting of other uses he did declare his intention and purpose to determine and alter the uses before Coke l. 10. f. 144. a Scroops case Conditio beneficialis quae statum construit benigne secundum verborum intentionem est interpretanda odiosa tamen quae statum destruit stricte secundum verborum proprietatem est accipienda Coke l. 8. f. 90. b. Provisoes and conditions which goe in destruction and defeasances of estates are odious in Law and are to be taken strictly and shall not be construed to make void any other use or state which is not within the words of the proviso but beneficiall conditions which make an estate are favorably to be taken according to the intention of the words As if a Feoffment be made upon such condition that the Feoffee shall give the Land to the Feoffor and the wife of the Feoffor and to the heires of their two bodies engendred the Remainder to the right heires of the Feoffor if the Baron dye living the Feme the Feoffee by the Law must make the estate to the Feme so neer the condition that he can make it as Littleton saith to wit to lease it to the Feme for terme of her life without impeachment of wast and after her decease to the right heirs of the Baron and of her ingendred the remainder to to the right heirs of the Baron and so if the Baron Feme dye before the deed made And with it accordeth the 2. H. 4. 5. But when conditions enure to the destruction of estates then they shal be taken strictly as if a man make a Feoffment in fee of certaine Lands upon condition that the Feoffee shall not give the Land to Baron and Feme and to the heires of their bodies engendred if the Baron dyeth without issue and the Feoffee maketh a lease for the life of the Feme without impeachment of waste that is no breach of the condition for it is taken strictly because it runneth to the destruction of the Feoffment vide ibidem plura in Frances case A lease made to one upon condition that the Lessee shall not alien to A. B. and he alieneth to R. B. and it seemed that the Condition was not broken for every Condition must be taken strictly for if a man maketh a Feoffment on condition that he shall not enfeoff I. S. and dieth and his Heire enfeoffeth I. S. that is no breach of the Condition Dyer f. 45. Pl. 1. A man is bound to another in an hundred pounds that he shall discharge the Obligee and â—ave him harmlesse of all Suits and Incumbrances against I.S. and after the said I. S. sued the Obligee and proceeded unto Judgment and the Defendant pleaded non damnificatus and Beaumon Serjeant sayd That in the eye of the Law untill his Goods or Lands were actually charged he was not damnified But Walmesley Justice held that there were two sorts of damages executory and executed executory which a man may in future time sustain executed as if the Land or the person should be in present execution As if the Disseisee maketh a release to the Disseisor and a stranger cancelleth the the Deed of the Release the Disseisor may have an action of trespasse against him and yet the Disseisor doth continue in possession and is not actually damnified And the Justices said the Land in some sort was actually charged for who would buy the Land of the party but only under value because of the Judgment executory 33 Eliz. Ridgleys case If a man be bound to make a sufficient estate in Land to one according to the advice of I. S. if he make an estate according to his advice whether it be sufficient or no he is excused 7 E. 4.13 A TABLE of the grounds and RULES contained in this Treatise A. ABundans cautela non nocet An abundance of circumspection doth not hurt fol. 323 Actus Dei nemini facit injuriam The act of God doth injury to no man 6 Actio personalis moritur cum persona A personall action dieth with the person 48 Actori incumbit onus probandi stabilitur praesumptio donec probetur in contrarium The burthen of proving lyeth on the Plaintiff and the presumption is confirmed untill it be proved to the contrary 46 Accessorium sequitur suum principale An accessory followeth the principall 56 Accusare nemo se debet nisi coram Deo No man ought to accuse himself unlesse it be before God 222 Actus non facit reum nisi mens fit rea The act maketh not a man guilty unlesse the mind is guilty 231 Actus repugnans non potest in esse produci A repugnant act cannot be brought into being 124 Actus me invito factus non est meus actus An act done against my will is not my act 434 Actus legis nemini facit injuriam The act of Law doth no man injury 463. 317 Ad libitum Regis sonuit sententia legis The sentence of the Law soundeth according to the Kings
granteth a lease for life or yeares he hath the reversion in him which he may lawfully grant but the Law requireth in this case that he be not deceived in his estate and to grant the possession of the Land whereas he hath but a reversion and therefore when he granteth the Land notwithstanding that it be in lease for life or for yeares of Record or otherwise the grant is good When the words of a grant are not sufficient ex vi termini to passe the thing granted but the grant is utterly void there any non obstante cannot make the grant good vide ibidem plura Davis f. 75. In the case of Commendams By our Law what is wrong and malum insert and against the Law of God cannot be dispensed with and therefore 11 H. 7. 12. a. It is said that the King cannot dispense with any that doth nusance in the High-way and if he doth it that such a dispensation is void 8 H. 6. 19. The King cannot grant that if a man doth a trespasse to me that I shall not have an action against him or that a man shall be his own Judge and therefore it is often said in our Books that the prerogative of the King shall doe no wrong to the Subject 13 E. 3. 8 So though the King may dispense with a Statute which prohibiteth an indifferent thing to be done yet he cannot change the common Law by his Patent 37 H. 8. Patent 110. And as to the Pope it is often said in the Bishop of St. Davis case that the Bulls of the Pope cannot change the Lawes of England Notwithstanding the word non obstante was first invented and first used in the Court of Rome which as Sir John Davis observeth f. 69. b. was a mischeivous precedent to all the common Weales of Christendome for the temporall Princes perceiving that the Pope dispensed with his Canons in imitation of him have used their prerogative to dispense with their penall Lawes and Statutes and whereas before their Lawes were religiously observed as the Lawes of the Medes and Persians Davis f. 77. The Law which ordaineth that the first benefice shall be void by the acceptance of the second may be dispensed with and so is it of the Law that ordaineth that when a man is made a Bishop that his other Benefices shall be void as Thrining saith 11. H. 4. 213. b. For those Laws were made by Ecclesiasticall policy and therefore the same policy may dispense with those Laws permissio non est officium legis quia lex ad fert necessitatem Reg. I. C. permission is not the office of the Law for the Law bringeth necessity As by the Statute of W. 2. Lands were permitted to be entailed and usury also by many Statutes yet can they not properly be termed Lawes and Statutes Confessus in judicio pro judicato habetur quodam modo sua sententia damnatur Coke l. 11. f. 30. He who confesseth in the Court of Justice is holden adjudged and in a certaine manner is condemned by his own mouth or sentence And therefore the Attainder in confession is the strongest attainder may be for the vehement presumption it hath of truth for it should be absurd to say that he hath not done such a Felony since the party himselfe hath confessed it to the distruction of him and all his off-spring And the case of confession is a stronger case then guiltinesse by verdict for though he be found guilty by verdict yet may he be innocent and therefore at the common Law he may have his Clergy and make his purgation but if he had confessed the offence upon record he shall not have his Clergy at the common Law because he could not make his purgation when the Court findeth his confession on Record for in the intendement of the Law he cannot contrary his expresse and voluntary confession in Court vide ibidem plura In praesentia majoris cessat potentia minoris Manhood in Ployd f. 498. a. In the presence of the greater power the lesser power ceaseth All the Justices agreed that the Ordinary the Patron and King ought to agree in making an impropriation and the Ordinary is the principall aagent in it in that he hath the spirituall jurisdiction and the act of appropriation is a thing spirituall and what the Ordinary of the Diasis might doe that the Pope used to doe in the Realme as supreame Ordinary and was a long time suffered so to doe and did use to make appropriations without the Bishop which were taken to be good and the Bishop never contradicted but accepted them as good for in the power of the greater the power of the lesser ceaseth and in all Ecclesiasticall jurisdiction his authority was taken as absolute and did bind the Bishop as his inferior in all acts now such authority and jurisdiction as the Pope used within this Realme was acknowledged by the Parliament 25. H. 8 and other Statutes to be in the King and that he might lawfully doe all that the Pope was accustomed and used to doe within this Realme and from him it descended to his Son Edward who as superame Ordinary did make the appropriation of his own authority and jurisdiction without the Bishop and did put these words in his Charter authoritate nostra regia ecclesiastica qua fungimur vide ibidem plura Vectigal ab origine ipsa jus caesarum est patrimoniale lex imperatoria Custome from the beginning is the right and patrimony of Caesar and Emperors and are called vectigalia a mercibus evectis invectis from Merchandizes exported and imported for custom is a prerogative and benefit to which Kings and Princes are by the Law of Nations intitled And as the Law Nations were before Kings so Kings were made by the Lawes of Nations ex jure gentium originem suam traxerunt Baldus and as soone as they were made Kings presently the Law of Nations did annex the prerogative of custome to their severall Crownes so saith Baldus cum creatus fuerit Rex omnia regalia ei conceduntur competit omnibus regibus jus imponendi vectigalia when a King was created all royall incidents were granted to him and the right of imposing customes appertained to all Kings Wherein the rules of our Law as Davis observeth f. 12. are agreeable with those of the imperiall Law for we also say that custome is the ancient inheritance of the Crowne of England and that inheret sceptro and is as ancient as the Crowne it selfe and is due by common right and by prescription and not by the grant and benevolence of Merchants or by Act of Parliament Dier 165. b. And whereas by the imperiall Law Primaria vectigalium causa ac ratio fuit ut plana tutaque mercatori praetereunti itinera praestarentur Plin. l. 19. c. 4. The first cause and reason of customes was that plaine and safe voyages should be exhibited and assured to the Merchants and in our