joynt-Tenants But if goods be given to her and to another her husband and the other are Tenants in common The Husband may release an Obligation or trespass for goods taken when his wife was sole and it shall be good against the woman if he die but if he die without making any such Release the woman shall have the Action not the Executor of her husband The woman surviving shall have all things in Action or her Executors if she die The Husband shall be charged with the debts of his wife but during her life 32 The will of the Wife is subject to the will of her husband Note a Feoffment made to the wife she shall have nothing if her husband do not thereunto agree MORALL RULES 33. THe Law favoureth works of Charitie right and truth and abhorreth fraud coven and incertainties which obscure the truth contrarieties delayes unnecessary circumstances and such like 34. Dolus fraus una in parte sanari debet No man shall take benefit of his own wrong if a man be bound to appear at a day and before the day the Obligee casts him in prison the bond is void A Grant of all his woods in B. Acre which may be reasonably spared is a void Grant if it be not reserved to a third person to appoint what may be spared A Feoffment made in Fee of two Acres to two men Habend one acre to one and the other acre to the other this Habend is void 35. Lex neminem cogit ad impossibilia c. The Law compelleth no man to shew that which by intendment he doth not know as if a servant be bound to serve his Master in all his commandements lawfull it is a good Plea to say he served him lawfully A Covenant to make a new Lease upon the Surrender of the old Lease and after the Covenanter doth make a Lease by Fine for more years to estrange the Covenant is broken although the Lessee did not surrender the which by the words ought to be the first Act for that the other had disabled to take or to make LAW CONSTRUCTIONS THe Law expoundeth things with equity and moderation to moderate the strictness it is no Trespass to beat his Apprentice with a reasonable correction or to go with a woman to a Justice of Peace to have the peace of her husband against the will of her husband which equity doth restrain the generality if there be any mischief or inconvenience in it As if a man make a feoffment of his lands in and with Common in all his Lands in C. the Common shall be intended within his Lands in C. and not in his other Lands he shall have else-where 36. Every Act shall be taken most strictly against him that made it As if two Tenats in Common grant a Rent of 10. shillings this is several and the Grantees shall have 20. shillings but if they make a Lease and reserve 10. shillings they shall have onely 10. shillings between them So an obligation to pay 10. shillings at the feast of our Lord God it is no Plea to say that he did pay it but he must show at what time or else it will be taken he paid it after the feast 37. He that cannot have the effect of a thing shall have the thing it self Vtres magis valeat quam pereat As if a Termor grant his Terme Habendum immediat è post mortem suam the Grantee shall have it presently 38. When many joyn in one Act the Law saith it is the Act of him that could best do it and that thing should be done by those of best skill As the Disseizee and the heir of the Disseizor who is in by discent joyn in a Feoffment This shall be the Feoffment of the heire onely and the confirmation of the Disseizee And the Merchant shall weigh the Wares and not the Collectors 39 When two titles concur the elder shall be preferred 40 By an acquittance for the last payment all other Arrerages are discharged 41 One thing shall enure for another If the Leasor enfeoff the Lessee for life it shall be taken for a confirmation 42. In one thing all things following shall be concluded in granting demanding or prohibiting If one except a Close or a Wood the Law will give him a way to it 43. A man cannot qualifie his own Act. As to release an Obligation untill such a time 44. The construction of the Law may be altered by the special agreement of the parties If a house be blown down by the wind the Lessee is excused in waste but if he have covenanted to repair it there an Action of Covenant doth lie by the agreement of the parties 45. The Law regardeth the intent of the parties and will imply their words thereunto and that which is taken by common intendment shall be taken to the intent of the parties and common intendment is not such an intendment as doth stand indifferent but such an intent as hath the most vehement presumption All incertaintie may be known by circumstances every deed being done to some purpose reason would that it should be construed to some purpose and variance shall be taken most beneficial for him to whom it is made and at election 46. An intendment of the parties shall be ordered according to the Law If a man make a Lease to a man and to his heires for ten years intending his heires shall have it if he die notwithstanding the intent the Executors shall have it 47. Qui per alium facit per seipsum facere videtur A promise made to the Wife in consideration of a thing to be performed by her Husband if he agree and perform the Consideration in an Action of the case he shall declare the assumption was made to him And if my servant sell my goods to another in deqt I shall suppose he bought them of me CUSTOMES Consuetude est altera lex CUstomes are of two sorts General Customes in use throughout the whole Realme called Maximes and particular Customes used in some certain County Citie Towne or Lordship whereof some have been specified before and some follow here and where occasion is offered GENERAL CUSTOMES THe Kings Excellencie is so high in the Law that no Freehold may be given to him nor derived from him but by matter of Record Every Maxim is a sufficient authority to itself and which is a Maxime and which is not shall alwayes be determined by the Judges because they are known to none but to the learned A Maxime shall be taken strict A particular Custom except the same be a Record in some Court shall be pleaded and tryed by 12. men CHAP. II. Statutes THe last ground of the Laws of England standeth in divers Statutes made by our Soveraigne Lord the King and his Progenitors and by the Lords Spiritual and Temporal and the Commons in divers Parliaments in such cases where the former Laws seemed not sufficient to punish evill men and to reward the good
A TREATISE OF THE PRINCIPAL GROUNDS AND MAXIMES OF THE LAWES Of this Nation Very usefull and commodious for all Students and such others as desire the knowledg and understanding of the Laws Lex plus laudatur quando Ratione probatur Written by that most Excellent and Learned Expositor of the Law W. N. of Lincolns-Inn Esquire The second Edition with Additions LONDON Printed by T. N. for W. Lee D. Pakeman R. Best and G. Bedell and are to be sold at their shops in Fleetstreet and Grays-Inn gate 1651. An Analysis of the Laws of England by the honorable and most learned William Noy Esq Atturney Gen and of the Privy Councel to the late King Justice is a constant perpetuall will to render every man his own right It is Naturall According to law whereare considered Law Divine Law of Reason Law Humane Forreign English Common where is treated I. Of law where is considered The law it self which is By Tradition which is General and belongs to * Written Statute Injuries forbiden by that Law Private against The person and goods Publique against the King Commonwealth 2. Of the manner of delivering that Law Civill Ecclesiastical Temporal In peace the Admiral In warr the Marshal * The Person where is considered the Quality as Name the King the subject who is of Baptism Creation Natural who is Politick Free who is Villain In his own Power where is considered Not in his own Power Intention Action there Cause Time Place Efficient Material Formal Final by Nature Action of the person by common law or the Kings Charter The Thing which is universal which is Of natural Right Out of divers causes Particular in which dominion may be gained Where are considered Peculiar which belongs to the King to the Subject according to his prerogative Legal ordinary Regal absolute According to peculiar Custom of place prescription of persons 1. Things or goods themselves which are Real Personal Primary Secondary Simple Compound Of the land Upon it Corporate Incorporate 2. To have ownership which is by Estate and Propriety by Right By his own Right Right of another Single Joint by Possession Possibility Of franktenement Chattels Hereditary Frank-tenement alone in Fee in Tail absolute conditional qualified general special by Law by Gift as Dower curtesy of Engl. for Life or Life of another Real Personal Term of years at Will Animate Inanimate Remote Near reversion remainder Parceners joint tenants Tenants in common Interest and Propriety Use Authority of Action of Entry 3. The manner of acquiring ownership by Law by Purchase Discent or Forfeiture absolute With consideration by Writing by Word by Devise by Record by Deed Fine Recovery Executed Executory with Voucher without Single Double Feoffment Grant with atturny Barg sale inrol'd by Grant Ratification Release Confirmation Render Election Concord Assignment by Common-law by Statute 4. The manner of admitting ownership by operation of Law by act of the party Extinguishment Suspension Discent which takes away Entry Commission Omission Discontinuance Warranty Estoppell Forfeiture II. The manner of delivering the law is By Law By act of the party Immediate Mediate by actions in Courts where are considered Claim Entry 1. The diverse Actions in which Right is given Writs Plaints Original Judicial Real Personal Mixt For the Right The possession For the Person The Goods Of Right of law Of the Kings grace Of Course Magistral Pleas of the Crown Common Pleas 2. The divers Courts where remedy is had here are considered The Courts themselvs Their jurisdictions there Temporal Of the King The subject Superior Inferior Of Record Of Barony The persons Pleas Of the Courts In them Judges Ministers Demand ' Tenant Real Personal Plaintiff Defend ' Of the Crown Common 3. The manner of prosecution in Courts Direct Collaterall By Processe By Pleading with that Pleas Tryall Judgment Execution by the Court-Adjornment by persons in the Court as-Essoin 4. The manner of defeating the Process by Prohibition assignation of Errors 5. The manner of taking away the punishment Flight Pardon CHAP. I. The Laws of England are threefold Common Laws Customes and Statutes THE COMMON LAW THE Common Law is grounded on the Rules of reason and therefore we use to say in Argument That reason will that such a thing be done or that reason will not that such a thing be done The rules of reason are of two sorts some taken from Learning as well Divine as Humane and some proper to itself onely OF THEOLOGIE 1. Summa ratio est quae pro Religione facit ATenure to finde a Preacher if the Lord purchase parcell of the Land yet the whole service remaineth because it is for the advancement of RELIGION 2. Dies Dominicus non est Juridicus Sale on a Sunday shall not be said Sale in a Market to alter the property of the Goods OF GRAMMBR OF Grammer the rules are infinite in the Etymologie of a Word and in the construction thereof what is nature is single 3. Ad proxium antecedens fiat relatio nisi impediatur Sententia As an inditement against I. S. servant to I. D. in the County of Middlesex Butcher c. is not good for servant is no Addition and Butcher shall be referred to I. D. which is the next Antecedent OF LOGICK 4. Cessante causa cessat effectus THe Executor nor the husband after the death of a woman Guardian in soccage shall not have the Wardship because viz. the natural affection is removed which was the cause thereof Some things shall be construed according to the original cause thereof 5. The Executor may release before the probate of the Will because his title and interest is by the Will and not by the probate To make a man swear to bring me money upon pain of killing and he bringeth it accordingly it is felony Outlawry in Trespass is no forfeiture of Land as outlawry in felony is for although the non-appearance is the cause of the Outlawry in both yet the force of the Outlawry shall be esteemed according to the heynousness of the offence which is the principal cause of the Process 6. According to the beginning thereof As if a Servant which is out of his Masters service kill his Master through the malice which he bare him when he was his servant this is petty Treason 7. According to the end thereof As if a man warned to answer a matter in a Writ there he shall not answer to any other matter then is contained in the Writ for that â—as the end of his coming 8. Derivativa potestas non potest esse majus primitiva A Servant shall be stopped to say the Frank-Tenement is belonging to his Master by a recovery against his Master although the servant be a stranger to the Recovery for he shall not be in better case then he is in whose Right he claimeth or justifieth 9. Quod ab initio non valet in tractu temporis non convalescit If an Infant or a married woman
to smile and alledge that it cannot defend it selfe in bello Grammaticali which I easily confesse but what then what can they inferre from hence will they therefore utterly condemne the use thereof me thinkes they should not but might give Lawyers leave to speakin their owne Dialect But what if some take exceptions at this word having occasion to meete with it here what would they do should they read the volums of the Law where instead of bellum they shall find guerra instead of Sylva they shall sind boscus and subboscus with a thousand the like Surely as saith Erasmus they might commend or else condemn what they could not understand or happily understanding might admire from whence such uncouth words should proceed for their better information if I thought they would thank me for my labour I could tell them that because the Saxons Danes and Normans have all had some hand or at least a finger in our lawes therefore through the commixtion of their several Languages it comes to pass that such difficult termes and harsh Latin words if I may so call them are frequenly obvious in the books and writings of the Law And indeed I see no reason why any man should object or cavil against the usage of such words though they be not classical seeing that aswel in the Art of Logick as in Philosophy there are found many words which they call Vocabulaartis vocables of Art which can no better stand according to the strict rules of Grammar then the ancient words of Law which cannot be changed without much inconvenience Acra Acra in English an Acre seemeth to come from the Latin word ager an acre is taken to be a quantity of Land containing 40 perches in length and 4 in breadth Master Crompton in his Jurisdiction of Courts saith that a Perch is in some places more and in some places less according to the different usages in different Countries and so then it must needs be of an Acre But ordinarily or for the most part a Perch is accounted and esteemed to contain 16 foot and an half in length I take it to be the same with that measure which we call a Rodde or Pole A Perch in Law-latin is called pertica or perticata See the Ordinance made for measuring of Land anno 34. Ed. 3. in Pulton's abr titl Weights and Measures Quaren Quarentena in English a Furlong or Furrow long Firlingus or firlingum is the same it hath been sometime accepted and taken for the eighth part of a mile anno 35. El. c. 6. and I have read that Firlingus or ferlingus terrae continet 32. acras The Latins call it Stadium Abbutt Abbutto is a verbe used by Lawyers to shew how the heads of Lands do lie and upon what other Lands or places denoting for the more certainty what Lands c. are adjacent about the Lands c. abbuttelled And now that I may speak once for all in regard that Lawyers do use to abbreviate their words in writing the reason is not as some ignorantly have supposed because they cannot express their terminations and endings as they ought to be but because of the multiplicity of business which they are to go through oftentimes requiring very suddain dispatch Yet I could wish that the custome of short writing alicui scriptori non esset dispendium but I fear me too many hereby take occasion to be wilfully ignorant which otherwise peradventure they would not do Militis Miles amongst the Latins signifieth a souldier and in this place and the like Miles is to be Englished a Knight which as Master Cambden noteth is derived from the Saxon Gnite or Cnight The Heraldes will enform you of divers and sundry orders of Knights if you please to consult with them or their writings thereabouts A Knight at this day is and anciently hath been reputed and taken for one who for his valour and Prowess or other service for the good of the Common-wealth performed hath by the Kings Majesty or his sufficient Deputy on that behalf been as it were lifted up on high advanced above or separated from the common sort of Gentlemen The Romans called Knights Celeres and sometimes Equites from the performance of their service upon horse-back and amongst them there was an order of Gentility stiled Ordo Equestris but distinguished from those they called Celeres as several Roman Histories do plainly testifie The Spaniards call them Cavalleroes The French men Chivaliers And the Germanes Rieters all which appellations evidently enough appear to proceed from the Horse which may be some restimony of the manner of the execution of their warlike exercises And surely it is a very commendable policy in States to dignifie well deserving persons with honorable Titles that others may thereby be stirred up to enterprize and undertake Heroick Acts and encouraged to the imitation of worthy and renowned vertues Armig. Armiger in English signifieth Esquire from the French Escuier and perhaps an Esquire may be called Armiger quasi arma gerens from his bearing of armes Ancient Writers and Chronologers make mention of some who were called Armigeri whose office was to carry the shield of some Nobleman Master Cambden cals them Scutiferi which seems to import as much and homines ad arma dicti they are esteemed and accounted of amongst us next in Order to Knights Clerici Clericus in English we read Clerke It hath with us two sundry kindes of acceptations In the first sense it noteth such a one who by his practise and course of life doth exercise his pen in any the Kings Majesties Courts or elsewhere making it his calling or profession hereupon you shal find in the current of Law mention made of divers Clerkes as for example The Clerke of the Crown The Clerke of Assise The Clerke of the Warrrants The Clerke of the Market The Clerke of the Peace with many others In the second sense it denoteth such a one as belongeth to and is imployed about the Ministry of the Church that being his function in which signification it is to be taken in this place and in the like for I for my part did never find Clerk in the first sense appropriated to any as an addition simply We have the use of the word Clericus from Clerus or Clerecutus signifying the Clergy that is to say the whole number of those which properly so called or rather strictly are de Clero domini i. e. Hereditate sive sorte domini for Clerus cometh from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Greekword signifying the same with sors in Latine namely a lot or portion The Habendum Habend ' THe Office of the Habendum is to name again the Feoffee and to limit the certainty of the estate and it may and doth sometimes qualifie the generall implication of the estate which by construction and intendment of Law passeth in the premisses for an example whereof see Bucklers case in the second Book of Sir Ed. Cokes Reports and Throgmortons case
Of general Statutes the Judges will take notice if they be not pleaded but not of special or particular All Acts of Parliaments as well private as general shall be taken by reasonable construction be collected out of the words of the Act only according to the true intention and meaning of the maker Foure lessons to be observed where contrary Laws come in question 1. The inferiour Law must give place to the superiour 2. The law General must yeild to the Law special 3. Mans laws to Gods Laws 4. An old law to a new law And oftentimes all these laws must be joyned together to help a man to his right as if a man disseized and the disseizor made a Feoffment to defrand the plaintiff in this case it appears that the said unlawfull entrie is prohibited by the law of Reason But the Plaintiff shall recover double dammage and that is by the Statute of 8 Hen. 6. And that the dammage shall be sessed by 12. men that is by the custome of the Realm and so in some case these three laws do maintain the Plaintiff's right And these laws concern either mens possessions or the punishment of offences And so much shall be sufficient to be said touching common Law Customes and Statutes CONCERNING POSSESSIONS The difference between Possession and Seizin is Lease for years is possessed and yet the Lessor is still seized and therefore the termes of the Law are that of Chattels a man is possessed whereas in Feoffments gifts in tayle and Leases for life he is called seized CHAP. III. Of possession of Frank-Tenement TEnant in Fee-simple is he which hath Lands or Tenements to hold to him and his heires for ever It is the best Inheritance a man may have He may sell or grant or make his Will of those Lands And if a man die they do discend to his heire of the whole blood CHAP. IV. FEE-TAYLE Fee-Tayle is of what body he shall come that shall inherit Tenant in Tayle is said to be in two manners Tenant in Tayle General and Tenant in Tayle Special GEneral Tayle is where Lands or Tenements be given to a man and his wife and to the Heires of their two bodies or to his heires males or to his heires females Tenant in Tayle is not punishable for waste Tenant in Tayle cannot Will his Lands nor bargain sell or grant but for terme of his life without a Fine or Recovery If a man will purchase lands in Fee it behoveth him to have these words Heires in his purchase If a man would grant Lands in Tayle it behoveth him to appoint what body they shall come of Yet a devise of lands to a man and his heires males is a good Intayle and of lands to a man for ever a good Free-Simple How Lands shall discend Inheritance is an estate which doth discend it may not lineally ascend from the son which purchaseth in Fee and dyeth to his Father but discendeth to his Uncle or Brother and to his heires which is the next of the whole blood for the half blood shall not inherit But the most worthy of Blood as of the blood of the Father before the Mother of the elder Brother before the other and borne within espousall A discent shall be intended to the heire of him which was last actually seized That the Sister of the whole blood where the elder Brother did enter after the death of his Father and not his Brother of the halfe blood nor any other collaterall Cosen shall inherit yet notwithstanding such a one is heire to a common Ancester in which Rule every word is to be observed and so in every Maxim if the Land Rent Advowson or such like do discend to the elder Son and he die before any entry or receit of the rent or presentment to the Church the younger son shall have and inherit and the reason is because that in all inheritances in possession he which claimeth title there unto as heire ought to make himself heire to him that was last actually seized Here the possession of the Lessee for years or of the Guardian shall invest the actual possession and Frank-Tenement in the elder brother But he dying seized of a Reversion or a Remainder or an estate for life or in tayle There he which claimeth the Reversion or Remainder as heire ought to make himself heire to him that had the Gift or made the purchase Feodo excludeth an estate tayle where the second son shall inherit before the daughter And if the Lands be once settled in the blood of the father the heire of the mother shall never have them because they are not of the blood of him that was last seized And to the heire of the blood of the first Purchaser As if the Father purchase Lands and it discendeth to the son who entreth and dieth without heires of the Fathers part then the Lands shall discend to the heires of the mother or father of the father and not to the heires of the mother of the son although they are more neer of blood to him that was last seized yet they are not of the blood of the first Purchaser If the heires be females in equal distance as Daughters Sisters Aunts and so forth they shall inherit together and are but one heire and are called Parceners Gavill-kinde Doth discend to all the sons and if no sons to all the daughters And may be given by Will by the Custome CHAP. V. PARCENERS Parceners are of two sorts Women and their heires by the Common law Men by the Custom THey may have a Writ of Partition and the Sheriff may go to the Lands and by the oath of 12 men make Partition between them and the eldest shall have the Capitall Messuage by the Common Law and the youngest by the Custome Where the parties will not shew to the Jewry the certaintie there they shall be discharged in conscience if they make Partition of so much as is presumed and known by presumptions and likelyhoods Parceners may by agreement make partition by Deed or by Word and the eldest first choose unless their agreement be to the contrary Every part at the time of the partition must be of an even yearly value without incumbrance Rent may be reserved for equality or Partition and may be distrained for without a Deed. Parceners by divers discents before partition being disseized shall have one assize A Parcener before partition may charge or demised her part The entrie or Act of one Copartner or joynt-Tenant shall be the Act of both when it is for their good If a Parcener after Partition be entred she may enter upon her Sisters part and hold it with her in Parcenary and have a new Partition if she hold none of her part before she was outed viz. in exchange CHAP. VI. JOYNT-TENANTS IOynt-Tenants be such as have joynt estates in goods or lands where he that surviveth shal have all without incumbrance if the Tenements abide in the same plight as they