The GROUNDS of the LAWES OF ENGLAND; Extracted from the Fountaines of all other Learning: And digeſted Methodically into CASES, for the Uſe and Benefit of all PRACTICERS, and STƲDENTS.
With a Commixtion of divers ſcattered Grounds concerning the reaſonable Conſtruction of the LAW.
By M. H. of the Middle-Temple.
LONDON, Printed for H. Twyford, T. Dring, Jo. Place, and W. Place, and are to be ſold at their Shops in Vine-Court Middle-Temple, at the George in Fleetſtreet, at Furnivals, and Grayes-Inne Gates in Holborn, 1657.
QUI & Hiſpanorum, & papicolarum es Horror, ſicut & piorum principum, & proteſtantium amor: Cujus ſolum nomen alteros (uti de Caeſaris hoſtibus olim dictum) ſomnum capere non ſinit; Alii vero veſtra ope, & authoritatis ſcuto tecti, & muniti, aut victores, aut incolumes plerumque evadunt,Macte virtute eſto, ſententia dia Catonis.Accedit etiam praeclara veſtra prudentia in adminiſtratione turbulentae hujus reipublicae: Ex quo enim gubernacula imperii & fraena reipublicae in te ſuſcepiſti, Britannia ſub veſtro principatu hoc didicit, quantum refert, graviſſimis, & difficillimis temporibus aliquem reipublicae praeeſſe. Qui ſic ſuo fungitur officio, ut bonorum hominum non ſolum expectationi, ſed votis ſatisfacere ſciret.
Cui adjicienda eſt veſtra frugalis aulae veſtrae domeſticae cura, quae non uti Craeſi regia magnificè, & ſumptuoſe eſt exornata, ſed ſicut platonis domus mundo nitore ſplendida: Cujuſque menſa non ſaliaribus dapibus, aut Vitellii patinis eſt referta, ſed ſatis liberalis, & bene neceſſariis quidem rebus inſtructa: Ita ut lauta ſit, & ſobria, omniſque luxus expers, & vacua, nullaque ſit familia melius morata, aut ſanctius inſtituta quam aula veſtra.
Quid autem memorem Juſtitiae veſtrae ſolemnia exemplaria, quae per totum noſtrum orbem diffuſa, in propatulo ſunt, & ſub omnium oculorum ictu. Nequeo tamen ſilentio praeterire, gratiſſimum veſtrum nobis opus, quod leges noſtras antiquas, patrias, & haereditarias, Invitis, & reluctantibus nonnullis innovatoribus, ſtabilire, & Juramento veſtro confirmare dignatus es: Ita quod recte appelleris legum noſtrarum fulcrum, & columna: In eo aequans Themiſtoclem in acie, qui fortiſſimus, & Ariſtidem in pace, qui Juſtiſſimus erat: unde ſaniorum omnium ſententia conſtat, ſummum pro merito veſtro imperium veſtrae Celſitudini Jure deberi: Nam naturae lex eſt omnibus Communis, ut deterioribus imperent meliores. Dyoniſ. Halicarnaſſaeus. Hor.
Haecque omnia〈…〉〈 in non-Latin alphabet 〉& ſine fuco profiteri non erubeſco, nec pertimeſco, quia non eſt adulatio, vel ſupparaſitatio, vera aſſeverare & praedicare, ſed potius puſillanimitas, & immodeſta modeſtia, veritatem tacere, & celare. Licetque ſumma petit livor, & eminentia invidia non Carent, ſit tamen Celſitudini veſtrae, erectus, & undiquequadratus animus uti ſemper, qui inſtar cubi, nullis fortunae ventis, & procellis divelli, aut proſterni poterit. Quod ut faxit ſummus ille Jupiter Stator, & Jehova noſter.
IT is the Theoreme of the Prince of Philoſophers, That every Diſcourſe, or Speech ſtandeth and dependeth upon theſe three Pillars, Qui, de quo, ad quem loquitur, The Author, the Subject, and the Auditor. And a Compendious Page of every one of them may not be diſtaſtfull, nor incongruous to the intended ſcope of this Codicill. In the handling of which, the Author deemeth it not inconducent to invert the Order, Homeri more〈…〉〈 in non-Latin alphabet 〉, and to take his Exordium from the ſubject, or matter it ſelf, as the more worthy, and to place the perſon of the Author in the arrear, as the leſſe worthy; for the matter it ſelf is more certain & evident, Et res ipſa loquitur, is the the firmeſt Argument, and far ſurmounting validity of Authority; As Teſte me ipſo, or ipſe dixit: For all Authors do often ſeem to ſtrive and contend for ſupremacy,Patric. l. 2. de princ. unius f. 65. and ſometimes accuſe one another of falſity: as Cauſtrius and Lyſymachus accuſed Ephorus: Apollonius and Nicagoras, Theopompus: Phyloſtratus Sophocles, and Pollio Herodotus; Neither have ſome abſtained from Plato, whom Ariſtole though his Schollar perſtringeth in many paſſages, whom therefore Plato wittily called〈…〉〈 in non-Latin alphabet 〉, a mad Colt for kicking againſt his Damme and Maſter: Nay Ariſtotle himſelf, who for his naturall Reaſons is of greateſt authority, was taunted and oppoſed by Vives, and Charronius, Ramus, and Mirandulanus, and in this latter age by Paradoxicall Gaſſendus.
Firſt therefore of the Subject, or the Matter ſubjected, which the Philoſophers part into the thing conſidered, or the matter handled, which they call ſubjectum materiale, or the manner of conſidering the matter, which they call ſubjectum formale, of both which the ſubject is conſtituted, which is called Adaequatum. Now to apply this to our preſent purpoſe, The matter conſidered in this Treatiſe is the grounds of the Lawes of England, which in the Volumnes of our Reports, and other writings have divers names, Et primo de nomine conveniat, quia res quidem verbis natura priores, ſed diſceptatione poſteriores: And firſt let us agree about the name, becauſe things by nature are before words, but hy deſceptation and diſcourſe words are before them.
Sometimes they are called Principles, as 8 H. 7. 4. It is a Principle, An Eſtate of Frank tenement doth not paſſe without Livery, but this name Originally cometh from the Grecians, and in this ſence was uſed by Ariſtotle in the firſt of his Phyſicks, Contra negantem principia non eſt amplius diſputandum.
And ſometimes they are called Maximes, as 34 H. 16. 33. It is a Maxime in our Law, that in every action perſonall, the Non-ſuite of one, ſhall be the Non-ſuit of both; but this name is borrowed of the Latines, and is ſo uſed by Boethus in his Logick,Boeth. Dialect. Sce. in Ar. Top. f. 3. and is all one as Sceglius ſaith, with a Topicall Axiome; for which reaſon Sir Edward Coke giveth it this latine Etymoligy, that they are called Maximes, Quia maxima eſt eorum dignitas,Coke com. & certiſſima authoritas, atque quod maxime omnibus probetur.
They are alſo ſometimes called Eruditions, as by Dyer f. 66. It is a common erudition, that in that County where the wrong is commenced, the Action ſhall be brought; which name alſo received its Origin from the Romans.
But they are many times called grounds, as Dyer f. 30. There is another ground of Tenure in chief, that it ought to be immediately from the King, and ought to begin and take his Originall creation by the King himſelf, and by none of his Subjects, with infinite others, which name only hath the ſound and ſenſe of an Engliſh Notation, and therefore is this name prefixed to the Title of the Author, moſt proper to our Law and Language: For a ground is a foundation in Law, upon whoſe reaſon the ſtructure of many particular Caſes doth ſtand. But now the Name, or Shell is cracked and opened, the Kernell and nature of the thing may more clearly be diſcovered, And this alſo must be by diſtinction, which is the prime way of inſtruction: for qui bene diſtinguit bene docet, and therefore premiſe that there are grounds and principles of eſſence and being from which things have their beginning and constitution: and ſo are all cauſes the grounds and principles of their effects, and there are grounds and principles of knowledge, which are univerſall propoſitions, by which as the more worthy and better known, other things are conceived, which are the materiall ſubject of•hi•Treatiſe.
Ariſt. 1. poſt.And theſe are either〈…〉〈 in non-Latin alphabet 〉, or〈…〉〈 in non-Latin alphabet 〉, naturall, or poſitive, as the Phyloſopher diſtinguiſheth them, naturall grounds and principles are thoſe, to which the humane intellect by its native propenſity doth aſſent without any ratiocination, and are either ſpeculative, or practick, ſpeculative are thoſe which immediately appertaine to contemplation, as impoſſible eſt idem eſſe, & non eſſe, it is impoſſible for the ſame thing to be, and not to be, & totum majus eſt ſua parte, the whole is greater then the part, and practicall are thoſe which reflect on the honeſty and manners of men, as parentes ſunt colendi, Parents are to be honored, & non eſt faciendum alteri, quod tibi non vis, you ought not to doe that to another you would not have done to your ſelfe: So vim virepellere licet, it is lawful to repel force by force; both which are called〈…〉〈 in non-Latin alphabet 〉, common notions, & theſe, ſaith the Phyloſopher, are called prime principles, quia non ab alijs, ſed a ſeipſis fidem habent, becauſe they have not their credit and authority from others, but from themſelves, and of theſe eſpecially is the rule cited by Sir Edward Coke, to be underſtood, principia probant, non probantur,Coke com. 343. becauſe the proofe ought to be from an higher cauſe, and there is nothing more ſupreme then a principle, yet if any be ſo abſurd to deny them, they may be proved a poſteriori, or by induction, as if one ſhould deny, totum eſſe majus ſua parte, it may be proved by the examination, and proportion of every particular part, and if any one ſhould deny the fire to be hot, let his hand be put to it, and it is proofe ſufficient.
Thetick and poſitive grounds and principles are thoſe, which are placed in Arts and Sciences to manifest, and prove their propoſitions and concluſions, and are drawn from the ſecondary Law of nature and reaſon,Dod. Eng. Lawy. 208. and therefore by Cicero are called, conſequentia naturae, as the others prima naturae, and by Sir John Doderidge, primary, and ſecondary propoſitions, primary which are known notions, whoſe clearneſſe, and evidence cauſeth every one to yeild to their conſent; and ſecondary, which are deſcended and derived from the branches as from a root, or rivers from a Fountaine, as ſublata cauſa tollitur effectus, the cauſe being taken away, the effect alſo ceaſeth, & qui tacet, conſentire videtur, he which is ſilent ſeemeth to conſent.
And theſe generall grounds and propoſitions, are the foundations of all Arts and Sciences, for the courſe and proceeding in every one of them is deduced from generall grounds and precepts, which are ſo neceſſary, that without them we cannot attaine to the knowledge of the Species,Dod. Eng. Law. f. and individualls, for the Phyſitian when he undertaketh the cure of a malady in ſome ſingular perſon, he effecteth it not by ſenſe and Symptomes, but by reaſon and Aphoriſmes, and ſo alſo doth the Legiſt, who though he exerciſeth his practiſe on particular mens caſes, yet doth he judge of the right by univerſall grounds and maximes,Coke com. f. 11. which therefore by Sir Edward Coke are called the grounds of Art and concluſions of reaſon,Ployd. f. 29. and by Mr. Ploydon, the foundation of the Lawes,Forteſc. de Leg. Ang. f. 21. and concluſions of reaſon; ſo alſo ſaith Sir Iohn Forteſcue, that the principles, and efficient cauſes of our Lawes are certaine univerſalls, which the learned in the Lawes of England call grounds and maximes.
Yet is not the Art and Science of the Law of the like certainty with other Arts and Sciences, by reaſon of the variable condition of the ſubject whereupon it is imployed, conſiſting onely upon a mans changeable, and inconſtant converſation, from whence the grounds and knowledge of all Lawes are in generality derived, and upon which they are commonly exerciſed, and therefore to that purpoſe ſaith the Phyloſopher,Ariſt. 1. Eth. c. 3 that〈…〉〈 in non-Latin alphabet 〉, honeſt and just things of which the politick, and civill Science conſidereth, contain in them, ſo great differences, and errors as they ſeem only to conſiſt by Law, and opinion, and not by nature, whereupon Sir John Doderidge judiciouſly collecteth, that it is almoſt impoſſible to make any ſecondary ground of Law, but that it will faile in ſome particular caſe, whence ſpringeth this often uſed aſſertion, non eſt regula quin fallit, there is no rule but faileth, and therefore the ordainers,Dod. 3. L. f. 209. and interpreters of Lawes, reſpect rather thoſe things which may often happen and not every particular circumſtance, for which, though they would, they ſhould not be able by any poſitive Law to make proviſion.
By reaſon whereof they doe permit, the Grounds and Maximes of the common Law, upon argument and diſputation of reaſon to be reſtrained by exceptions.
Yet doth not the exception ſo framed upon any ground or rule to which it is annexed, impeach the credit of the ſaid ground, but as Sir Edward Coke, and Sir John Doderidge, firmat regulam in omnibus caſibus non exceptis,Coke com. Dod. E. Laws f. 210. corroborateth the rule in all caſes which are not excepted.
Melancton in his Logick addeth another ground and principle which exceedeth the Phyloſophers apprehenſion, to wit, principium patefactionis divinae, the principle of divine revelation, which our Law alſo holdeth to be the prime principle, and ground of all the reſt, for as Priſot a principal Juſtice of the common Pleas ſaith,24. H. 8. 46. 1. we ought to give credit to all ſuch Laws as are taken out of the holy Scriptures, for that it is the common Law upon which all Lawes are founded, and from which all other Lawes doe proceed, and therefore may be called divine Lawes as they are conjoyned with the morall Law, and have divine authority, as alſo humane Lawes as men by their knowledge doe judge all humane affaires.
It followeth that we now inquire, of the manner of conſidering the grounds and rules of our Lawes, which is by the extraction of them out of the roote, and fountaine of other Acts, and Sciences, for as reaſon is the mother of the rules, and grounds of all Acts, and Sciences, ſo are they by the ſame reaſon united, and cemented together, as that the grounds and rules of one Science are adjuvant, and auxiliary to another, which the Author hath fully & expreſly demonſtrated in the preamble, and frontiſpice of the firſt Book of this treatiſe, to which he referreth the Reader; And to which may be annexed the method which alſo may be called a manner, and forme of conſidering, concerning which the Judges and Sages of our Laws doe diſſent and vary, whether any, or what manner of method is to be uſed in the ſuſtemes and digeſts of our Lawes, for the antique, and neoterique reporters and writers of our Lawes reſpect more the matter then the method; And Sir Edward Coke, being adviſed by King James at ſome opportune time to reduce the common law into a more commodious method,Coke l. 4. Ep. ad lectorem. did much doubt of the fruites of his labour, if he ſhould undertake it, and ſo doth Sir Francis Bacon freely profeſſe, that though he could have digeſted the rules of our Lawes into a certaine method, and order, yet doth he of purpoſe avoid ſo to doe, but Sir Henry Finch hath endeavoured,In his preface to his rules and maximes of the Law. and fairely proceeded in reducing not onely the body of our Lawes into a compendious method, but alſo the grounds and rules of the ſame into an Academicall order, for which rarity he hath merited this Elogy, rara avis in lege rubicula.
Order being the ornament of all things, and method the beſt art of memory to which purpoſe Sir John Doderidge aſſerteth, that if there be any way extant,Dod. E. Law. 253. to purge the Engliſh Lawes, from the great confuſions of tedious, and ſuperfluous reiterations; wherewith the reports are infeſted, it may be brought to paſſe by the way of grounds and rules, or by none, for by rules and exceptions, all Sciences are, and have been publiſhed, put downe and delivered, and whereas Galene propoſeth three wayes, reaſons, and methods of teaching and learning, the one way by compoſing, and proceeding from the parts to the whole, and the other by reſolving the whole into parts, and the third by defining, which by explication of the nature of the whole, examineth every particular appertaining to the whole. This third and latter may aptly be applyed to the grounds and rules of Sciences; as in Phyſick, to the Aphoriſmes of Hippocrates, and more eſpecially to the grounds and rules of the Law, which by the newer Civilians is taken for a definition, who accordingly do define a rule to be a ſhort definition, or a ſentence, whenas indeed many like caſes are concluded in a ſhort delivery, not by the expreſſion of the particular caſes, but by the aſſignation of the ſame reaſon, and is nothing elſe but a compendious oration,Br. in regulas juris, f. f. 15. & 346. wherein many things are breifly and abſolutely delivered and declared, and ſo doe the Greeke interpreters call a definition〈…〉〈 in non-Latin alphabet 〉, which alſo may be orderly diſpoſed into a Methodicall, and an Alphabeticall Table, fit and convenient both for the ſpeedy finding of that we would ſeek, and wiſh for which the Author in the Table of this treatiſe hath accurately obſerved.
And beſides hath been diligent to reduce them into a more artificiall order, by drawing the grounds and rules of our free and Municipall Laws, from the Springs and Heads of the liberall Arts and Sciences, and by that meanes hath brought them into a more convenient forme, and method, which he ingenuouſly acknowledgeth to have borrowed of Sir Henry Finch, and Mr. Noy, quia ingenuum duxi, profiteri per quos profeciſſem, and to which according to his ſlender skill he hath added, a copious amplification, ſeriouſly upon mature, deliberation, conceiving that all the Grounds, and Principles of our Lawes may be placed, diſpoſed, and contained under ſome of thoſe Heads; and conſequently every particular caſe under the generall, and ſeverall grounds in every one of them, for as Sir Edward Coke, principium eſt quaſi primum caput,Coke com. f. 345. a. a principle is the prime Head, from the which many caſes have their beginning, and originall, and therefore hath the Author diſpoſed as many particular and ſeverall caſes under every generall and ſeverall Heads, as he could conveniently collect, and accumulate having learned of the ſaid Author, that there is no particular caſe in the Law ſo ſterill, but that the Student at one time, or another may make uſe of it, for the defect of which Sir Francis Bacon taxeth the Civilians in his preface to his Maximes, which though the Author hath not compleated, yet hath he endeavoured ſo to doe, and made way for others to effect it,Et ſit nobis voluiſſe fat.
But now Gentlemen the Author turneth his ſtile towards you who are the coronides of his labors, and lucubrations, and to whom they are devoted, and directed; for yee are legum noſtrarum alumni, fed and nouriſhed with the teates and tra••ates of the Law, and therefore〈…〉〈 in non-Latin alphabet 〉, as proper and idoneous auditors of the Grounds and Principles thereof, and did forbeare to commende them to the Rabbies, and Papinians of our•awes for that were to inſtruct Minerua, or to ſubmit them to the Judgement of illiterate Lozels, for they would contemne what they did not conceive, ſo as he may ſay of theſe writings, as Caius Lucilius did of his quod ea que ſcriberet, neque ab indoctiſſimis,Cicer. de oratore l. 2. neque a doctiſſimis legi velle, quod alteri nihil intelligerent, alteri plus fortaſſe quam ipſe de ſe, that thoſe things, which he ſhould write, would not be read of thoſe were moſt learned, nor of thoſe were not learned at all, becauſe theſe underſtood nothing, and the others perhaps more then himſelfe, & ſic,Pro captu lectoris habent ſua fata libellis,
To youre therefore indifferent and debonaire Judgements hath the Author deſtinated this diſcourſe, as the immediate, and adequate object of the ſame, it neither tranſcending, or ſurmounting your capacities, nor being inferior, or ſubordinate to your conditions, or proficiencies whence he is uſed to preſume on your affable and gracious acceptance, becauſe by nature all men are rapaces ſimilium, and covetous of thoſe things are conformable to their conceptions and conditions, and for this reaſon confidently aſſumeth to himſelfe, that the conſideration of theſe grounds and principles will be conſonant and pleaſing to your affections, eſpecially when you ſhall perceive the great and various utility, which from the election of them may proceed, for as in naturall operations, the neceſſity, and utility of the thing is predominant, ſo in morall and civill affaires, the uſe and commodity is prevalent, and as Galen in all things, Vincat utilitas,
The prime uſe therefore which accrueth from the collection of theſe Grounds & Principles, is the confirmation of our memory, which is the treaſury and perfection of all learning and erudition, for whereas our annalls, and reports doe conſiſt of particular caſes, and every particular caſe hath his ſeverall circumstance, and circumſtances are ſingular, and in regard of us infinite, and therefore hardly, if not impoſſible to be retained in memory, according to the dictate of Bracton, omnia in memoria tenere divinum eſt potius quam humanum, yet by theſe Grounds and Principles, is this oblivious defect ſalved and re-remedied, for by the obſervation of theſe grounds, he will be inſtructed to remember the reaſon of them, by which he ſhall reſolve all doubts of like degree, as if he had remembred the expreſſe caſes from which the ſame reaſon and ground is reduced; ſo as by their brevity they ſtrengthen us, and coroborate the memory:Quintil. l. 2. For as Quintilian, ſententiae feriunt animum, & uno ictu frequenter impellunt, & ipſa brevitate magis haerent, Sentences ſtrike the mind & with one blow, commonly conquer it, and by their brevity ſtick more firmely, that, is in the memory: And therefore did Pythagoras, and the ancient Philoſophers deliver their morall and civill Diſcipline by Aphoriſticall Precepts, and Laconicque ſentences, that they might more eaſily apprehend and retain them in memory, wch alſo may appear by the Proverbs of Solomon, and by the Aphoriſmes of Hyppocratis, and the Precepts of Theognis,Bacon in his Preface to his Rules and Maximes. & Phocilides, but chiefly as Sir Francis Bacon obſerveth by the Praecedents of the Roman Civill Law, who have taken the ſame courſe with their Rules:Dod. E. l. f. 56. From whence as Sir John Dodridge collecteth that many Axioms & Rules are borrowed and uſually frequented in our Law, which do more aptly and fitly expreſſe the ſame reaſon in ſhortneſſe of ſpeech: which by Mr. Ployden are ſometimes cited and called the Text of the civil Law,Ployd. f. 368. & by Sir Ed. Coke oftner, but for the moſt part by him concealed, in ſometimes altered, which may be obſerved or the paſſages of the Author, who commonly conjoyneth the Civill Rule, with our Common Law ground.
Beſides, it is not unknown almoſt to every Puny, what a laudable and difficult task it is to argue a caſe accurately upon a Quaere, or Demurrer in Law, wherein by the election of Grounds and Maximes, the Lawyer is taught to abound in matter fit for Argument; For as Mr. Ployden,Ployd. f. 27. b. there are two principall things upon which Arguments may be made, to wit, Maximes and reaſon the Mother of all Laws: and Maximes, ſaith he, are the foundations of Lawes, and concluſions of reaſon; whereby is manifeſted the help and aſſiſtance, that Grounds and Maxims do yeild in the diſcuſſing of ſuch Arguments, which conſiſt in the apt application of the ſaid Grounds and Maximes, unto ſuch particular Caſes falling in debate.
To which the Author will onely add one Ʋſe more, leaſt he ſhould exceed the limits of a better, which according to Cicero's example, ought to be ſhort and pithy, and that is the accumulation of the Grounds and Maixms, into a breviary, and compendium collected out of the claſsick and authentick Authors of our Lawes, which as Politian eligantly, Laborioſius ille fuit quā ſibillae folia colligere, was more laborious to him, then to collect the ſcattered leaves of the Sibils: and in framing of which he may ſay with the witty Poet,Saepe caput ſcaberet & vivos roderet ungues.And of which he may not unfitly ſay with Lucretius,
All which though through the brevity of time and importunity of the Preſſe, he could not compoſe into a compendious lump, yet hath he gathered together the chiefeſt and choicest of them, and more then any other Collector before him, to the number two a hundred.
All which compriſed, Tanquam in pala annuli, into a little compaſs the Author affectionately preſenteth to your benigne animadverſion, which you have here, Ad manum, prepared to your hand, to make uſe of them upon any fit and opportune occaſion.
But now is it high time for the Author to appeare on the Stage, who though in the flowre of his age was initiated into the honourable houſe of the Middle Temple, and for the ſpace of theſe twenty Summers, hath principally devoted his ſtudies to the knowledge and pract•ce of our Lawes: Et ſic tractent fabrilia fabri: yet doth he modeſtly acknowledge, that the theme of this Tractate, is an Obje•too high for his inferior flight, and not to be reached by a Musket, or a Sparrow-Hawk, but by an Eagle, or Birds of a more ſoaring, or ſurmounting flight. Howſoever propoſing unto himſelf the Pattern and Proteſtation of Cicero, Quod omnes ii ſumus,Cic. l. 2. de Orat. ut ſine ſtudiis nullam vitam eſſe dicamus, That we are all of that opinion, that without ſtudy and labour there is no life: And the advice of Sir Edward Coke, Omnes debere juriſprudentiae libris componedis animum adjicere, That all men ought to addict their mindes to the compoſing of Books of the Law. He did rather chooſe to incur the cenſure of temerity and audacity, then to undergo the ignominy of oſcitation and idleneſſe, of which, as Cato ſaith, Every one ought to give a reaſoable account, eſpecially thoſe who are stepped into years, in whom nothing is more diſhonourable, and ignominious, according to the ſentence of Sedulous Seneca,Cricitas de hon. diſ. l. 1. c. 8. Nihil eſt turpius, quam grandis natu ſenex, qui nullum habet vitae ſuae argumentum, quo diu ſe vixiſſe dicat, praeter aetatem, There is nothing more fowle and filthy then a very aged man, who hath no other argument of his life, by which he may ſignifie he hath lived, beſide his old age. And though it is the obſervation of the Philoſopher,〈…〉〈 in non-Latin alphabet 〉. All men love their own Works,Ariſt. 4. Eth. c. 1. as Parents and Poets do: yet doth the Author acknowledge with Cicero, Quod nihil meorum magnopere miror, That he never admired any of his own works, but ſaith with Ovid,Ipſe mihi nunquam Judice me placui.That he could never as yet by his own Judgment pleaſe himſelf, though it alwaies hath been his ambition to pleaſe others, according to the option of the Conſular Poet,Optabam ut placeam, ſin minus ut taceam.And this modeſt leſſon hath the Author learned of the great Legiſt Sir Edw. Coke, Nulla ſcientia,Coke com. f. 494. nulla virtus locum ſuum, & dignitatem conſervare poteſt ſine modeſtia, no ſcience, nor virtue can preſerve its place, and dignity without modeſty, and accordingly doth he cloſe up his diſcourſe with the concluſion of Bracton, poſtulans a Lectore,Brac. l. 1. f. 1. ut ſiquid ſuperfluum, vel perperam poſitum in hoc opere invenerit, illud corrigat, vel emendet, vel connuiventibus oculis pertranſeat, requeſting this of the Reader, that if he ſhall finde any thing ſuperfluous or placed amiſſe in this worke, that he will either correct or amend it, or with conniving eyes paſſe it by.
Or rather with our great Maſter Littleton.
That he would not have you beleive, that all that he hath ſaid in this Booke is Law, for he will not preſume to take that upon him, but of ſuch things, which are not Law enquire, and learne of his Sage Maſters learned in the Law.
IT is the obſervation of Cicero who excelled in the knowledge of all humane Arts and Sciences,Cic. 3. de. orot. Omnes a•tes quae ad humanitatem pertinent habent commune quoddam vinculum & quaſi cognatione quadam inter ſe continentur. All Arts and Sciences which appertaine unto humanity, have a certain common bond and tye, and are as it were contained by a certain alliance and affinity amongſt themſelves, and truly, for they are the iſſue of one Womb deſcending from the ſame intellect, and are by nature ſo linked and chained together, that thoſe principles which are true in one Art and ſcience are reciprocally true in the other, for truth,2 abſolutely and materially is one and the ſame, though formally or relatively, either in reſpect of the Artiſts or the diverſe objects of Sciences, it bee ſevered, which proceeds from the various mode of the application and conſideration of it. Neither is Theologicall and Philoſophicall truth oppoſite but ſubordinate, and Theologie is not againſt Philoſophie but above it, neither doe the principles of one ſcience ſupplant the principles of another ſcience, but mutually aide and aſſiſt each other with their principles in ſearching and ſifting out of the truth, which is practically app•rent in the art and diſcipline of the Law,Nomot. f. 6. which borroweth moſt of her principles from other ſciences; in ſo much, as Sir Henry Finch elegantly, The ſparks of all Sciences are raked up in the aſhes of the Law, for which reaſon Sir Edward Coke aptly ſtileth it ſcientia ſocialis,L. 5. •8. a ſociable ſcience becauſe it agreeth with other excellent ſciences both divine and humane, and therefore the Author deemeth it operae p ecium, a work worth the labour, to demonſtrate as it were in a mirror and blazon the affinity and aliance that the gr•unds of the Lawes of Eng•and have with the principles of other arts and ſciences, who by an intellectuall chaine are divinely linked and conjoyned: and becauſe Theologie is the prime and divine Metaphyſicks, ars•rtium, & ſcientia ſcientiarum, and the cynoſure of all lawes, for as Auguſtine, in illa temporali l•ge nihil eſt juſtum ac legitimum, quod non ex hac aete•na homines derivaverint, in this temporall Law nothing is juſt and lawfull, that men have not derived from the law eternall, and therefore doth the Author deduce his exordium from it, becauſe as Sir Edwa d•oke, it is cauſa cauſarum, and that the common law is grounded on the Law of God, and as the mirror of juſtice, the common Law is nothing elſe but ancient uſages warranted by Scriptures, from hence are drawne theſe grounds and maxims.
1. Summa ratio eſt quae p•o religione facit, Reg. l. c. Coke l. 5. f. 18, a. it is the cheifeſt reaſon which3 makes for religion, as in many caſes the King is bound by Act of Parliament, though he be not named in it, nor bound by expreſſe words. And therefore all Statutes which are made for ſuppreſſing of wrong or to prevent the decay of religion, ſhall bind the King though he be not named, lor religion and juſtice are the ſure ſupporters of the Crowne, and diadem of Kings. So the act of 1 Eliz. which reſtraineth eccleſiaſticall perſons from ſpoyling and waſting their poſſeſſions, which were given to maintaine the ſervice of God, ſhall bind the King unleſſe that ſpeciall proviſion had been made to the contrary by the ſaid Act
2. Coke l. 11. f. 70. a. b. Magdalens Colledge Caſe, the Maſter and fellowes of Magdalens Colledge by Indenture inrowlled, did grant to the Queene an houſe paying fifteen pounds rent yearely, &c. and it was reſolved by all the Judges that the Act of the 13. Eliz. did extend to reſtraine them to convey the ſaid houſe (parcell of the ſaid colledge) to the Queene, though ſhe was not in that expreſly named, becauſe it was for the advancement of Religion &c. for out of thoſe Colledges the Church was furniſhed with grave and reverend Divines, for the inſtruction of Chriſtians in the true Religion, which is a maine Pillar of the Crowne, and if the King ſhould be exempted out of it, the utter impoveriſhment of the ſucceſſors, and by conſequence, the decay of Religion would enſue, vide.
3. Coke l. 2. f. 44. b. A lay man concerning payment of Tythes, may preſcribe in modo decimandi, but not in non decimando, becauſe he is not but in ſpeciall caſes capable of Tythes by the common Law, and therefore without ſpeciall matter ſhewed, he ſhall not bee intended to have a legall diſcharge: And therefore in favour of religion and the Church, though he may have a legall beginning, yet the law will not ſuffer ſuch a preſcription in this caſe, nor put it upon the triall of the lay people, who will rather ſtraine their conſciences for their owne private gaine4 and benefit, then give the Church its due: And the Law hath great policy in it, for the decay of the Revenues of the Church in the end will be the ſubverſion of Religion and the ſervice of God, &c. vide.
4 Eccleſia fungitur vice minoris, meliorem facere poteſt conditionem, deteriorem nequaquam, Cok. Com. 141. a. The Church exerciſeth the Office of a minor & can make its condition better but not worſe, for it is the cheifeſt reaſon which makes for Religion: And therefore in all caſes a Parſon or Vicar of the Church for the benefit of the Church hath a qualified fee, but in many caſes to doe any thing to the prejudice of the Church he hath in effect but an eſtate for life.
As a Parſon, Vicar, &c. may have an action of Waſte, and in the Writ it ſhall be ſaid, ad exheredationem Eccleſiae. So the Parſon that maketh a Leaſe for Life ſhall have a conſimili caſu during the life of the Leaſee, and a Writ of Entry ad communem legem after, or a Writ ad terminum qui preterijt, or a quod permittat in the debet, which no man can maintaine but Tenant in Fee-ſimple or Fee-tayle, vide.
But a Parſon cannot make a diſcontinuance, for that ſhould be to the prejudice of his Succeſſor to take away his Entry and drive him to a reall action, but if he dye, the Succeſſor may enter notwithſtanding the diſcontinuance. And if a Parſon make a Leaſe for years reſerving rent and dyeth, the Leaſe is determined, neither will the acceptance of the Succeſſor make it good, vide.
5. Prelatus Eccleſiae ſuae conditionem meliorem facore poteſt ſine conſenſu, deteriorem vero nequaquam ſine conſenſu, Coke Com. fol. 103. a. As neither Biſhop nor Parſon cannot diſclaim or deveſt any fee is inveſted in his houſe or Church. But an Abbot or a Prior with his Covent, or a Biſhop with his Chapter, or a Parſon with his Patron and Ordinary, may paſſe away any Inheritance, for the wiſdome of the Law would not truſt one with the Inheritance5 of the Church; which alwayes maketh for religion and the good of the Church.
6. Dies dominicus non eſt dies juridicus, Ployd. 265. The Sabbath day is no day for Law: As upon a Fine levyed by Proclamations according to the Statute of 4. H. 7. C. 24. If any of the Proclamations be made on the Sabbath day, all the Proclamations be erronious, for the Juſtices muſt not ſit upon that day, but it is a day exempted from ſuch Buſineſſes by the Common-Law, for the Solempnity of it; to the intent that the people may apply themſelves that day to the ſervice of God.
No Plea ſhall be holden Quindena Paſche, becauſe it is alwayes the Sabbath, but ſhall be Craſtino quindenae Paſch. Fit. Nat. fo. 17. f.
Upon a Scire facias out of the Common Bench, an Error was aſſigned becauſe the Teſte of the Scire facias was upon a Sunday: And it was adjudged Error, becauſe it was not Dies Ju•idicus, Dyer 168.
No ſale upon a Sunday ſhall be ſaid to be ſale in a Market overt to alter the property, 12 E. 4 8.
Although Sunday is not Dies Ju idicus, and that no judiciall Act ought to be acted on that day, yet miniſteriall Acts, as to arreſt or ſerve Proceſs are allowed, for otherwiſe peradventure they ſhould never be executed, and God forbid that things of neceſſity ſhould not be done on that day, for bonum eſt bene facere die Sabathi, but this diſtinction and exception is taken away by a late Act made in the long Parliament of England, yet did that Parliament in caſe of neceſſity once ſit upon the Lords day, which is the high Court of Juſtice, and from which there is no appeale.
By the Statute of Magna Charta, Cap. 14. no ſpirituall Parſon ſhall be amerced according to his ſpirituall benefice but according to his Lay fee, Fitz. Nat. br. f. 76. b. And that in favour of Religion.
7. Omnia quae movent ad mortem ſunt deod inda, Coke l. 5. fol. 110. b. any unreaſonable thing killing a man by miſadventure is forfeited to the King, and6 every thing moveing with it is forfeited alſo to the King: As if a man being upon a Cart carrying Faggots, and as he is in binding them together falleth downe by the motion of one of his Horſes in the Cart and dyeth of that, both that and all the Horſes in the Cart, and the Cart it ſelfe are forfeited, 8. E. 2. 307. A man falleth from a ſtack of Corne and dyeth, it is forfeited, 2. E. 3 140.
If any Horſe ſtrike one and I•lien my Horſe, and he dyeth, my Horſe is forfeited, becauſe the forfeiture ſhall have relation to the ſtroke given, Ployd. 260. b. K•llaway, 68. b. but it is not forfeited untill the matter be found on record, and therfore it cannot be by preſcription, and the Jurors that find the death muſt alſo finde and apprize the goods, Coke l. 5. fol. 11. b.
And therefore are they called Deodands, quaſi deodanda, that is, El•emoſynas eroganda, to be diſpoſed in Almes and workes of Charity, 17. E 4. 2. and for that reaſon doth the King grant them to his Almoner, to the intent they ſhould be diſpoſed of by him accordingly.
Actus dei nemini facit inju•iam, Cok. Com fol. 148 So much is the reaſon of the Law ruled by Religion, as it will not permit the Act of God to prejudice any one, as if Tenant for another mans life granteth a Rent-charge to one for one and twenty years ceſty que vie dyeth, the Rent-charge is determined, and yet the Grantee during the years may have a Writ of Annuity for the Arrearages incurred after the death of ceſty que vie, becauſe it determined by the Act of God.
Cok. l•b 8. fol. 72. Hales Caſe. An Office is found that the Heir is in ward, who after he was of ful age tendreth his Livery, and was admitted to it, the Heir within three moneths, which is the uſuall time to ſue out his Livery, bargaineth part of his Lands by Deed inrolled, and within the three moneths dyeth, the bargaine was adjudged good, and that the Heire ſhould have no prejudice, becauſe the ſuing7 of his homage, and ſuing out of his Livery, without default in him was become impoſſible by the Act of God, & Impotentia excuſat l•gem; and is all one as if the King had taken the Homage of the Heire, when the Heire made his tender, vide ibidem p•u•a.
Coke lib. 8. fo. 63 a. If an Houſe fall by tempeſt or other Act of G•d, the Leſſee for life or years hath a ſpeciall intereſt to take Timber for the buil•ing of the houſe againe, if he will, for his habitation, but if he pull downe the houſe he ſhall not have Timber to builde it, becauſe it is his own Act, and the Leſſor ſhall have an Action of Waſte.
Coke lib. 1. 98. a. If a Leſſee Covenanteth to leave the Wood in as good plight as it was at the time of the Leaſe, and after the Trees are ſubverted by Tempeſt, he is diſchar ed of his Covenant, cauſa qua ſupra, Cok. l. 5. fol. 86. a. B•unfeilds Caſe. If the Defendant in debt, dyeth in Execution, the Plaintiff ſhall have a new Execution, by Elegit or Fieri facias, becauſe the death of the Defendant is the Act of God, which prejudiceth no man.
Nunquam proſpere ſuccedunt res huma•ae ubi negliguntur res divinae, Cok. Com. fo. 54 b. humane affaires never ſucceed well where divine rites are neglected. And therefore doth that great Legiſt preſcribe theſe Rules, to the Students of the Law for their dayly practice.
IN the next place the art of Grammer is to be ranked, which amongſt the Liberall Siences hath the Precedency, for it is Janua omnium artium, the8 portall by which we enter into the knowledge of all Arts, and by which we communicate our ſelves and ſtudies to others; hence proceede theſe rules and maximes.
Ignoratis terminis ignoratur ars, Cok. Com. 177. a. As in Schoole Divinity, Civill Law, Logick, and other Arts, there are words of Art, which are more ſignificant, then Grammaticall, ſo are there in our Law termes drawn from the Legall French, which are more apt and ſignificant to expreſſe the ſenſe of our Lawes then any other. Which words of Art being not conceived, that Art cannot be comprehended. Whence he inferreth that the ſignifications of words in all Arts and Sciences are neceſſary, which Mr. Littleton in his Tenures ordinarily obſerveth, for certainly names which are inſtituted and impoſed according to the rationall Analogy with things by wiſe & underſtanding men are as Plato calleth them〈…〉〈 in non-Latin alphabet 〉inſtructive inſtruments by which we are guided and directed to the knowledg of the thing: And therefore in our diſcourſe and diſputation this ever is to be obſerved, principium in omni re, & diſputatione eſt nomen, the words are firſt to be conſidered, Cok. Com. 68. a.
2. Loquendum ut vulgus, Coke l. 4. fo. 46. a. words ſhall be taken according to their vulgar and ordinary conſtruction, as though a perſon attainted be a perſon convict and more.
Yet in the Statute of 25 E. 3. c. 2. It is ſaid that an attaint by virdict is taken as convict by virdict, ſo alſo it is taken, 3. H. 7. c. 1. and oftentimes in common ſpeech, the perſon convict is termed Attaint, for we are to ſpeak as the people uſe to ſpeak; a grant of one hundred Acres of Land in ſuch a Feild, and ſixty in ſuch a Feild, and twenty Acres of meadow in ſuch a Meadow, the Acres ſhall be taken as they are known by eſtimation. But if I have a Cloſe by eſtimation twenty Acres, and by the Statute eighteene, if I grant ten of theſe Acres, he ſhall have them according to the meaſure of the9 Statute, Popham fol. 191. And therefore ſaith Ployd. fo. 169. It is the part of Judges to know the common Language of the people, and to adjudge of thoſe onely according to the common courſe. For he that taketh a Leaſe for Lands in the North Country called a tack, and in Lancaſhire it is called a firme-holte, and in Eſſex a Week, and if he have taken it by theſe words uſed in that Country, there is no reaſon that he ſhould looſe his Farme becauſe he hath uſed no other Language then is uſed in his own Country: But the Judge ought to ſearch and know the ſenſe of theſe words, and ſhall judge them according to the common uſage, otherwiſe he ſhall make great diſturbance and confuſion in the Common Wealth, ib. for verba valent uſu ſicut nummi, and Cok. l. 6. fol. 64. b. concludeth that it is well ſaid in Hills and Granges Caſe 170. It is the office of Judges to take and expound the words which the common people uſe to expreſs their intent, according to their intent and not according to the true definition, vide ibidem plura, Sr. Moyle Finches Caſe, and ſo Coke lib. 7. fol. 11. b. Calvins Caſe, whereas diverſe books and acts ſpeake of the Leagiance of England, all theſe and others ſpeaking breefly in a vulgar manner and not pleading are to be underſtood of the Legiance due from the people of England to the King; and therefore loquendum ut vulgus ſed ſentiendum ut docti for no man will affirme that England it ſelfe taking it for the continent thereof doth owe any legiance and faith, or that any allegiance, or faith ſhould be due to that: But it manifeſtly appeareth that the Legiance and faith of the Subject is proprium quarto modo, to the King, ibidem.
3. Ad proximum antecedens fiat relatio, Dyer fo. 14. b. It is a rule in the Grammar, that when a thing is dubious and may be referred to a double intent, let the relation be to the next Antecedent: As the Condition of the Obligation for marriage money, was: That if the wife dye before Michaelmas, without10 Iſſue dyed, adjudged the Obligation was void, for then living relates to the firſt Antecedent that is Michaelmas, and not to the death of the woman, ibidem.
Dyer fo. 46 b. A man was endicted of Felony per nom•n I. S. de in C m. pre. ſerviens W. B. in eodem Com. Yeoman, and for defect of a ſufficient addition to I.S. he was diſcharged upon the Enditement, for Yeoman ought to be referred to the maſter as the next Antecedent, and not to I.S. and ſervant is not a ſufficient addition 9. E. 4. So one Sibylla Baterſby nuper de T. in Comitatu Ebor. uxor Johanis Baterſby nuper Spinſter was endited of Felony and murther, and for defect of the addition, ſhe was diſcharged, for Spinſter being an indifferent addition for man or woman (for in Norfolke there are diverſe men which are worſted ſpinſters) muſt be referred to Johanis Baterſby the next Antecedent.
Tenant for life, the Remaind•r to B. in Tayle, the Remainder to C. in eadem forma, this is a good eſtate Tayle, for idem refertur proximo antecedenti, Cok. Com. fo. 20. b.
Ad proximum antecedens fiat relatio niſi impediatur ſententia, Cok. l. 2. fol. 71 a. Sr. Cromwells, Caſe and Dyer. fo. 13 b. although the rule be true, that the relation for the moſt part ought to be ad proximum antecedens, yet many times if it be hindred by the ſenſe and meaning it is otherwiſe, for ſenſus eſt anima legis. Cok l. 5. f 2 ſenſe is the ſoul of the Law, and hath a ſpeciall ſway and rule in all Caſes, ſo a man is bound to abide the award of I. S. and he awards that the one party ſhall pay before ſuch a feaſt ten pound to another, and that then he ſhall make him a releaſe, Tunc ſhall not be referred to the Feaſt but to the time of the payments cleerly.
So I.S. bargaineth and ſelleth his Land to I N. for ten pound & predictus Johanes Covenanteth to deliver the Evidences of the Land, it ſhall be underſtood of the firſt Iohanes S. the vendor, who by common intendment hath the Evidences, ſo a man11 granteth to one a pention, that I. B. had donec ſibi proviſum fuerit de competenti beneficio: this word ſibi ſhall be referred to the grantee, and not to I. B. ſo in a cui vita, brought by a Feme, the Writ is cui ipſa in vita contradicere non poteſt, the word ſhall not be referred to the next antecedent ipſa but to the husband, otherwiſe the ſenſe ſhould be imperfect, Dyer, Ibidem f. 15. b.
So Dyer f. 46. b. I. G. was indited before the Coronor of the death of Emelin Gager his wife, and the Inditement was that the ſaid Emelin was in pace domini regis, quouſque ante dictus Iohanes Gager vir prefate Emelin Gager de Hambridge predicta in commitatu predicto, Yeoman, and the Inditement was held good, and that there was no defect in the addition, for the word Yeoman could not bee addition to the Feme, though the next antecedent, but muſt neceſſarily be referred to the husband, according to the ſenſe and meaning
A Writ brought of reſcuing goods, and denying to pay towle contra pacem, ſhall bee referred to the reſcouſe and not to the towle 30. E. 3. 15. becauſe in it conſiſted the breach of the peace.
Coke l. 8. f. 119. Adam de Clidrow brought a precipe againſt Iohn de Clidrow, and the Writ was quod juſte &c. reddat manerium de Wincomb & duas carrucatas terre cum pertinentiis in Clidrow, in this caſe the Village of Clidrow ſhall not relate to the Mannor, becauſe it wanteth not it, for a Mannor may be demanded without mention made, that it lyeth in any Village, but cum pertinentiis though it come after the Village relateth to the Mannor, becauſe it wanteth it, Quia verba poſteriora propter certitudinem addita ad priora quae certitudine indigent ſunt referenda, 6. E. 3. 12.
Imperſonalitas non concludit nec ligat, Cok. com. 352. b imperſonals doe not conclude or binde, and therefore every eſtopple ought to bee a preciſe affirmation of that which maketh the eſtopple and not to be ſpoken imperſonally, as if it bee ſaid ut dicitur becauſe12 imperſonality doth not conclude any man; for imperſonalitas dicitur quaſi ſine parſona, ibidem.
Negatio deſtruit negationem & ambo faciunt affirmationem, Coke Com. f. 146. b. according to Grammaticall conſtruction a double negative maketh an affirmative, a diſtreſſe was pro infecto ſervicio, the Defendant ſaith, quod non fuit infectum, and ruled as good as if he had ſaid it was done, but Grammaticall curioſity ſhall not prevaile in like caſes, to avoide a Grant, as upon a Rent charge iſſuing out of Land, the Proviſo was, quod non preſens ſcriptum nec aliquid in eo ſpecificatum non aliqualiter ſe extendat ad onerandam perſonam meam. Nec non, in Grammatical conſtruction doth make an affirmation, but the Law that principally reſpecteth the ſubſtance doth judge the Proviſo to be a negative according to the intent of the parties, ſo as the ſenſe of thoſe words according to the conſtruction of the Law is, provided that this preſent writing nor any thing therein ſpecified ſhall any way extend to charge my perſon, Coke Com. f. 146. a. b. ſo ibidem f. 223. b. If Lands bee given in taile, ſub conditione quod ipſe nec heredes ſui non alienarent, that he nor his heires ſhall not alien, in legall conſtruction ſhall bee taken negatively, notwithſtanding the double negative.
In disjunctivis ſufficit alterum eſſe verum, Coke lib. 10. f. 59. a. The Biſhop of Sarums caſe, whereas the avowant did avow that the Office ſuperviſoris omnium maneriorum ſuorum, had been granted to ſuch perſon or perſons as it pleaſed the Biſhop, and the Defendant pleaded in the negative, that the ſaid office had not been granted, but for the life of one; that exception was not allowed, becauſe in that the advowant did not alledg that the ſaid office had been granted to diverſe, but onely to ſuch perſon or perſons, and in disjunctives it is ſufficient that one of them be true, ibidem.
So Coke Com. f. 225. a If the condition bee in the disjunctive it is ſufficient to obey either of them, according to the rule Si plures conditiones aſcriptae fu•rint13 donationi diviſim cuilibet, vel alteri eorum ſatis eſt obtemperare & in disjunctivis ſufficit alterum eſse verum. If many coditions bee annexed to a guift ſeverally or disjunctively it is ſufficient to obey every one or any one; & in disjunctives, it is ſufficient if either of them be true.
Si plures conditiones aſcriptae ſunt donationi conjunctim, omnibus eſt parendum, & ad veritatem copulati•vam requiritur quod utraque pars ſit vera, Bracton lib. 2 f. 19 Coke com. f. 225. a. If many conditions be joyntly annexed to a gift, all of them muſt be obeyed, and to a copulative truth, it is required that every part be true, & in a condition conſiſting of diverſe parts, in the conjunctive both parts muſt bee performed, as if a man give Lands in taile upon condition that if Tenant in Taile, or his heires, alien in fee or in taile &c. and alſo if all the iſſues comming of tenant in taile bee dead without iſſue, that then it ſhall bee lawfull for the Donor and his heires to enter, if tenant in taile in this caſe, or his heires make any diſcontinuance, he in the reverſion and his heires may enter after the eſtate taile is determined for want of iſſue, for the reaſon aboveſaid.
But if the condition or limitation bee both in the conjunctive and disjunctive, what then? as a Leaſe to the husband and wife for 21 yeares, if the husband, wife, or any child betweene them ſhall ſo long live, and the wife dieth without iſſue, the Leaſe ſhall continue during the life of the husband, for the disjunctive referreth to the whole, and disjoyneth not onely the latter part as to the child but alſo to the Baron and feme.
And ſo it is that if an uſe be limitted to certaine perſons until A. ſhall come from beyond the Seas, and attain to his ful age, or die, if he doe come from beyond the Seas, or attaine to his full age, the uſe doth ceaſe, Coke ibidem f. 225. e.
Grammatica falſa non vitiat inſtrumentum, Reg. I.C. decius, 3. f. 10. mala grammatica non vitiat cartam, & ſenſus abreviationis accipiendus eſt, ut conceſſio non ſit14 inanis Coke l. 9. f. 48. a. falſe latine doth not deſtroy a Deed, or a Charter, and the ſenſe of daſhes, or abreviations is ſo to bee taken, that the grant be not voide, as if the King grant tat. il. mannur. of C. and D. and in truth there is but one Mannor, then thoſe abreviations ſhall bee taken in the ſingular number, totum illud manerium, and if there bee two diſtinct Mannors, then ſhall they bee taken in the plurall number, tota illa maneria, that the grant be not void, and 32. E. 3. A Fine was levied de maneriis B. and H. and the concluſion was quare praedictum manerium B. and H. ingreſſus eſt, and good by averment, that B. and H. were but one Mannor, and though a Writ ſhall abate for falſe Latine, becauſe any one may purchaſe a new Writ at his pleaſure, yet in a grant it ſhall not, becauſe hee cannot purchaſe a new grant at his pleaſure.
As 4. H. 6 f. 16. the Writ was Henricus dei gratia Rex Angliae & Dus Heberniae, whereas it ſhould have beene Dns and for it in congruity the Writ did abate, but in a Deed that ſhould have beene good enough, and ſo in a fine 9. E. 3. warranty was made in a fine eidem galfrido & uxori ſuae, where that ſhould have been iiſdem, and yet good, vide ibidem plura, & Co. l. 11. f. 3. and Coke com. f. 146. ab. but becauſe ſuch exceptions doe properly appertaine to Writs, Deeds, and Fines, which have heretofore been compoſed and levied in the Latine tongue, and that by the Act of 9. April. 1651. it is enacted that all Patents, commiſſions, and all proceedings whatſoever, in any Courts of Juſtice within the Common-wealth of England, and which concerne the Law and adminiſtration of Juſtice, be made, and framed into the engliſh tongue. I will ceaſe to heape more caſes upon this rule they being chiefly in uſe, for preterite Deeds, conveyances, and proceedings, though not altogether uſeleſſe in our Engliſh language, for it alſo hath its grammaticall conſtructions, and ſometimes abreviations, and therefore it is alſo in the above ſaid Act enacted, that15 miſtranſlations or variation in forme by reaſon of Tranſlation or part of proceedings already begun being in Latine, or part in Engliſh, ſhall bee no error or avoide any proceedings by reaſon thereof.
THe Law hath little relat ionto Rhetorick, and is too ſtrict an argumentative for that copious, various, and tropicall art.
But like ruggid and knotty tymber rejects the rhetoricall plaine and outward ornament, which moved the critticke Eraſmus to deride it, and the civilian Hottaman to deſpiſe it, not apprehending the depth and profundity of it, for the Law as Sir Edward Coke is a deep well, out of which every one drawes according to the ſtrength of his underſtanding,Cok. com. f. 7.1 a.. he which reacheth deepeſt ſeeth the admirable ſecrets of the Law, which though in the beginning it ſeemeth difficult, yet when the ſtudent diveth to the depth, it is delightfull, and therefore as the ſame Author in another place ſaith, The generous ſtudent,Cok. com. f. 5. a. ought not to bee diſcouraged when he meeteth with knotty caſes, neſcit enim generoſa mens ignorantiam pati, but will proceed on his reading with alacrity, to know how to worke into with delight, thoſe ruffe Mines of hidden Treaſure,Coke com. f. 235. to which worke as he alſo ſaith, the knowledge of the liberall arts is requiſite, eſpecially the art of Logick to labour in that various and intricate Labyrinth, for it teacheth a man not onely by juſt argument to conclude the matter in queſtion, but to diſcover between truth and falſehood, and to uſe a good method, and reaſonably to ſpeake to any queſtion, for it is nothing elſe but ars rationandi, the act of reaſoning,Coke com. f. 344. h. and then wee are ſaid to know the law when wee apprehend the reaſon of the law, from whence ariſe theſe grounds and maxims, and firſt from16 notations which by the conſent of all Writers appertaine to Logick.
Notationes ſunt quaſi verae rerum notae Fonſ. log. and Bracton L. 4. c. 20. Ideo impoſita ſunt nomina ut demonſtrent voluntatem dicentis, & utimur notis vocis miniſterio, notations are as it were the true notes of things, ſor therefore were they impoſed that they might demonſtrate the will of the ſpeaker, and wee uſe them as notes in the miniſtry of our Language, as Socage is ſervitium ſocae i.e. carucae, the ſervice of the Plow, becauſe that the word ſoca was uſed for the Plow and the name of the court of Pypowders was derived from the duſty feet of the commers, markets and faires being moſt frequented in Summer, Lam. Arch. ſo religious houſes were called monaſteria, of the ſolitarie life therein led, which in latter daies was nothing leſſe, quia, as one, pleraque monaſteria nihil minus ſunt quam ſolitudines, Dod. ſo the feudiſts in the civill law deduce homagium from hominium, for by that name hee doth profeſſe himſelfe his man and Client.
And ſuch notations and etymologies are not to be wreſted, but muſt bee anſwerable to the ſound of the words, and applied to the ſenſe, of which it is ſaid by Coke com. f. 68. b. that the right interpretations and etymologies of words are neceſſary, which not only demonſtrate their native conceptions, but from them often produced arguments, which are frequent among the Civilians, as well as by the common Lawyers, as Cicero arguing for Opimius, then Conſul, uſeth this notation, ſi Conſul eſt qui conſulit patria, quid alius eſt Opimius, & Ployden 343 b. Teſtamentum eſt teſtatio mentis, for of thoſe two words is it compounded, and there is no other teſtation of the Teſtators mind here, but for the twelve Acres, in Rigdens caſe, So Cok l. 8. 37. a. a Barrator is derived of two legall words, bar which ſignifieth the bar in Court where cauſes are debated, and retium which ſignifieth a crime and offence, becauſe a common barrator is chiefely an offendor, in moving and maintaining of quarrels at barres in Courts,17 and Coke l. 10. f. 128. a. reditus dicitur a reddendo quia retro it, to wit to the Leſſor or Donor, and that is the reaſon, that the Rent ſo reſerved is not due before the day of payment, becauſe it is to be rendred and reſtored of the iſſues and profits, vide.
Yet as Doderidge, ſuch arguments are not to be uſed at all times, and occaſions, but when neceſſity requireth the ſame, or apt conſequence doth offer a fit occaſion, or rather as Coke l. 7. f. 27. b. Calvins Caſe. Arguments drawn from Etymologys are too weake, or too light for Judges to build there Judgments on, yet when they agree with the Judgment of the Law, Judges may uſe them for Ornaments.
GEnerale nihil ponit, generale nihil certum implicat, Cok. l. 2. f. 33.34. in Doddingtons Caſe, a generality determineth nothing, and a generality implyeth no certainty, as if a common perſon be bound to deviſe, or grant all his Lands which he hath within the tenure of I. B. in W. the Obligor may ſay that he hath no Land there, for generall words imply no certainty: and with that accordeth 21. E. 4. If a man be bound to be nonſued in all Actions, that he hath againſt him in the Common Bench, he may ſay that he hath no action therein, otherwiſe if the condition be particular to wit that he ſhall be non-ſued in a Formedon, &c. ſo as that it appeareth, that generall words imply no certainty, neither do they conclude any perſon to ſay that he hath nothing there, vide ibidem plura.
Cok. lib. 8.78. a. Boſpols Caſe. In an arbitrament when the ſubmiſſion is generall of all Actions and Demands, &c. that may well ſtand with the generality of the words, that there was but one cauſe depending in controverſy between them. For generall ſpeeches imply no certainty, and the awa•d for one is good, notwithſtanding the generality of the18 words, for though there were many matters in controverſy, yet if one onely was made known to the Arbitrator, he may make an award of it: For the Arbitrator is in place of a Judge, and his office is to determine ſecundum alligata, & probata, & the duty of the parties which are greived, and know their particular greifes is to make known the cauſes of controverſy to the Arbitrator, for they are privy to them, and the Arbitrator is a ſtranger, and every one is to do that which lyeth in his knowledge, but when the condition is in ſpeciall, and with a proviſo and condition that an award ſhall be made of the premiſes, or words which amount to ſo much, there the Arbitrator ought to make Arbitrement of all, or elſe the award is void.
Generalibus ſemper ſpecialia derogant, Reg. f. c. Derg. 180. Quando charta continet generalem clauſulam, poſteaque deſcen•it ad verba ſpecialia, quae clauſulae generali ſunt conſentanea, interpretanda eſt charta ſecundum verba ſpecialia. f. 134. b. in Edward Althams Caſe. Which rule is almoſt word for word put, and agreed of by both parties, In. 7. E. 3. f. 10. Margery Mortimers Caſe, to wit, where a Deede ſpeaketh by general words, and then deſcendeth to ſpecial words if the words ſpecial agree with the words general, the deed ſhall be underſtood according to the words ſpeciall: As if a man grant a rent in the mannor of P. to be taken in an hundred Acres of Land parcell of that Mannor, with a clauſe of diſtreſſe in thoſe hundred Acres, the Rent ſhall iſſue out of the hundred Acres onely, and the generall words ſhall be conſtrued according to the words ſpeciall, ſo if a man grant a Rent and go no further, thoſe generall words ſhall create an eſtate for life, but if the Hab•ndum be for years, that ſhall qualify the words generall, 7. E. 3. So if a man give Lands to one and his Heirs Habendum to him, and the Heirs of his body: He ſhall have onely an eſtate tayle, and no fee expectant, for the Habendum qualifieth the generall words precedent, Ployd. f. 541. a. A man maketh a19 Feoffment by Deede to one to have, and to hold to him and his Heirs, and if it happen that the feoffee dyeth without heire of his body, that then the Land ſhall revert: The generality of that gift to him, and his Heires ſhall be corrected by the ſpeciall branch after, ſo as the Donee ſhall have but an eſtate tayle, 13. R. 2. in Formedon.
Dyer 261. b. A man ſeiſed in fee deviſeth all his Lands in one village, and in one of the two Hamlets by name, and there were two Hamlets in the ſaid Village. The opinion of divers Juſtices was, that none of the Lands in the other Hamlet ſhould paſſe, for it is intendable that the intent, and meaning of the deviſor was, that nothing more ſhould paſſe, then what he had expreſſed.
A. acknowledgeth a fine of the mannor of P. with an advowſon, and regrants the mannor with the Appurtenances, the advowſon ſhall not paſſe, Temp. E. 1. F. title grants.
Ployd. 173. b. If I give or leaſe all my Lands to one and ſtay there, he ſhall have all my Lands in England, but if I ſay further, in the manner of Dale there it is now reſtrained, but if the ſpecialty limiteth a thing which is void, and ſo appeareth, it is otherwiſe, as if I leaſe to one all my Lands in Dale, which I have by deſcent of the part of my mother, and in truth I have no Lands in Dale, which I have by deſcent of the part of my mother, if the Leſſor have other Lands in Dale he ſhall not have thoſe.
Ployd. 160. a. A man giveth Lands to two, Habendum to one for life, and after his deceaſe to the other and his Heirs, the one ſhall have the entierly for his life onely, notwithſtanding the Joynture given in the Premiſſes, by the better opinion in terme M. 8. E 3.427.
Generalibus ſemp•r ſpecialia inſunt, Reg. f. c. Specialls are alwayes contained in the generals, and the univerſalls allwayes comprehend the particular•, Ployd. f. 68. a. The plurall number containeth the ſingular and more, and therefore was it reſolved by20 all the Judges: That a pretenſed right and title was within the penalty of the Statute of 32. H. 8. for the buying of pretenſed rights, and titles, for pretenſed rights and titles in the plurall number did containe a pretenſed right and title in the ſingular number. And whereas the Statute of 5 R. 2. c. 5. forbiddeth that none make entry into any Lands, or Tenements unleſſe in caſe where entry is given by the Law, yet if one enter into a Tenement he ſhall be puniſhed, though the Statute ſpeaketh in the plurall number, and likewiſe whereas the Statute of 1. H. 5. ſpeaketh of falſe Deeds in the plural number, yet if one bring but one falſe Deed he ſhall be puniſhed by the Statute as it is holden in many Bookes.
Ployd. f. 467. b. The Statute of Glouceſter giveth an Action of Waſte againſt him which holdeth for years, which is ſpoken in the plural number, yet may it be taken for him which holdeth for a year, or half a yeare, vide ibidem plura. Generalis clauſula non porrigitur ad ea, quae ſunt ſpecialiter comprehenfa, Coke l. 8. 118. b. It is a ground and maxime in the Law, that a generall clauſe is not extended to thoſe things, which are ſpecially comprehended, Doctor Bonhams Caſe, by the Statutes of 10 & 14. H. 8. it was enactd, that no man ſhould exerciſe the faculty of Phyſike within the City of London, or within ſeven miles of the ſaid City unleſſe he be admitted thereunto by the Preſident, and Colledge of the faculty of Phyſike, and there is another ſpeciall clauſe contained in the ſaid Acts, that any who evilly and not well exerciſe the ſaid faculty, &c. ſhall be puniſhed by Fine and impriſonment, &c. and it was adjudged that the ſaid generall clauſe, that none ſhould exerciſe the ſaid faculty of Phyſike, unleſſe he be admitted, &c ſhall not be extended to the ſpeciall clauſe for the puniſhment of fine and impriſonment, &c. but that it ſpecially ſhall be limitted to ſuch onely as did offend only in not well executing and uſing the ſaid faculty of Phyſike, for a generall cl••••is not to bee extended to thoſe21 things are ſpecially comprehended, ſo 34. Eliz. f. 120. ubi A. ſeiſed of the mannor of Stable in O. in the county of S in fee, and alſo of other lands in the ſaid O. in fee, ſuffereth a common recovery of all, and declareth the uſes by Indenture, that the recoveror ſhall ſtand ſeiſed of all the lands and tenements in O. to the uſe of him and his wife, and the heires of his body, and dieth, and after his death the wife entreth into the ſaid Mannor, by form of the ſaid generall wordes, but it was adjudged that thoſe generall word•did not extend to the Mannor which was ſpecially named.
Coke l. 4. f. 8•. b. Nokes caſe, clauſula generalis non refertur ad expreſſa, a generall clauſe is not referred to thoſe things are expreſſed, as where the Aſſignee of a Leaſe ſhall have a Writ of Covenant upon thoſe wordes demiſe, and grant, yet if there be an expreſſe covenant that the Leſſee ſhall enjoy it without eviction of the Leſſor, or any claiming under him, this expreſſe Covenant qualifieth the generallity of the covenant in Law, and reſtraineth it by mutuall conſent of both parties that it ſhall not extend to the aſſignee.
Clauſula generalis non porrigitur ad ea quae antea ſunt ſpecialiter comprehenſa, Coke, l. 4 131. l. 4. when the deed at the firſt containeth ſpeciall wordes, and then concludeth in words generall, both the wordes as well generall as ſpeciall ſhall ſtand, as Lands given to one and the heires of his body, Habendum to him and his heires, hee hath an eſtate taile, and a fee ſimple expectant, for as Dier. f. 56. b A deed by wordes ſubſequent may bee qualified and abridged, but not deſtroyed.
Coke l. 3. f. 8. a. Twins caſe, it is one of the Enſignes of fraude in a Deed of gift, if the gift is generall without the exceptions of his apparell or any thing of neceſſity, for it is commonly ſaid that the fraudulent is converſant in generalls.
Coke l. 3. f. 57. b. Specots caſe, A Biſhop ought22 not to ſhew a generall cauſe for the refuſall of a Clark, as that he is criminoſus, or non idoneus, for they are too generall, and the fraudulent is exerciſed in generalls, and therefore ſo incertaine that no iſſue can be taken of them, as 2. E. 3. f. 6. The heire ought to alledge ſome certaine cauſe of refuſall, whence iſſue may be taken.
Generalia ſunt praeponenda ſingularibus, it is a rule in the Regiſter, that in a Writ the generall ſhall bee put in demand, or plaint before the ſpeciall, as the Meſuage before lands, the Land before Meadow, Meadow before Paſture, and Paſture before Wood, and Wood before Juncary, F. a. b. f. 2. E.
Ex verbo generali aliquid excipitur, Coke com. f. 47. a. An exception is part of the thing granted, and in eſſe as exceptis, ſalvo, praeter, and out of a generall, a part may be excepted, as out of a Mannor an acre, but not a part out of a certainty, as out of 20, Acres one, Ployd. f. 361. a. A Leaſe of all my Lands in D. except white acre, is void for white acre, and a gift of all my horſes except my black horſe is void for my black horſe.
Coke l. 10. f. 101. b. quando verba ſtatuti ſunt ſpecialia ratio autem generalis, generaliter flatutum eſt intelligendum, where the words of a ſtatute are ſpeciall and the reaſon generall, the ſtatute is generally to be underſtood; as the reaſon of the ſtatute of 23 H. 6. whereby it was ordeined that no Sheriff ſhould take any obligation by colour of their office, but onely to themſelves, and upon condition that the Priſoners appeare at the day contained in the writ, was for the avoyding of extortion and oppreſſion, and therefore is to receive a benigne and favourable conſtruction, and that in equity not only a bond but an aſſumpſit is within the reaſon of that ſtatute; and ſo was it adjudged 27. Eliz. Trin. in the Kings Bench betweene Danhigh and Hothcot, that if a Sheriff or Goaler for eaſe, or enlargement of any who is in his cuſtody, doth take a promiſe of him to ſave him harmeleſſe, that though the ſtatute doth onely ſpeake of an obligation,23 yet it is in equall miſchiefe, otherwiſe as Wray chiefe Juſtice ſaid, the ſtatute ſhould ſerve for little or nothing.
Multa tranſeunt cum univerſitate, quae per ſe non tranſeunt, Coke com. f. 142. a. If a man ſeiſed of land as heire of the part of his mother, make a gift in taile, or a Leaſe for life reſerving a rent, the heire of the part of the Mother ſhall have the reverſion, and the rent alſo as incident thereunto, for many things paſſe with the generallity which by themſelves doe not paſs, ſo if a man hath a rent-ſeck of the part of his mother, and the Tenant of the Land grant a diſtreſſe to him and his heires, and the Grantee dieth, the diſtreſſe ſhall goe with the rent to the heire of part of the Mother, as incident and appertenant to the rent, for now is the rent-ſeck become a rent charge.
Singulare diſtributive ſumptum e aquat plurali, Dier. 328.. b. a ſingular diſtributively taken, equalleth a plurall, as in an aſſiſe, the Plaint is of two Acres of Land, the Tenant pleads two barrs ſeverall for the two Acres at large, and the Plaintiffe makes two ſeverall titles at large, to wit for every acre one, the Tenant pleades, let the aſſiſe come upon the title in the ſingular number, and the aſſiſe found one title for the Plaintiff and the other for the Defendant againſt the Plaintiff, and judgement was given that the Plaintiffe ſhould recover for one Acre, and be barred for the other.
Coke l. 10. Br. Lifiels caſe, A Leaſe is for one yeare, and that if they agree, the Leſſee ſhall have the Land for three yeares, rendring, during the ſaid terme ten pounds yearely, this reſervation goeth to both termes.
Propria res eſt, quae ſolius eſt, ſive uni ſoli convenit, Tholoſſ. Syntag. lib. 5. c. 1. A propriety is that which is one mans onely, and appertaineth onely to one man, Ploid. f. 308. b God made man the Soveraigne over all living creatures, and gave the rule of them all to man, Terram d•dit filiis hominum, and24 ſo men by the endowment of God were made Lords of the earth and poſſeſſors of all things in the earth, but how much land or things upon the earth one man ſhall have and how much another, God hath leaſed to man by lawes by them to bee made and provided, and by ſuch lawes in every Realme and Country they are provided and divided, and every man 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 pro•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, the25 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 ſervice26 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•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.
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 maintainable27 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 proferentem accipienda ſunt, Bacon Eliz. f. 11. As if I demiſe omnes boſcos meos in villa de Dale for years, this paſſeth the ſoile, 14. H. 8.28. H. 8. Dyer 17.
And if I ſowe my Land with Corne, and let it for for yeares, the Corne paſſeth to my Leſſee.
And if I grant ten pounds rent to Baron and Feme, and if the Baron dye the Feme ſhall have three pounds rent, becauſe theſe words reſt ambiguous, whether I intend three pounds by way of addition, or three pounds by way of deduction out of the rent of ten pounds, it ſhall be taken ſtrongeſt againſt me, that it is three pounds addition to the ten pound; of which more hereafter.
So Coke fol. 303. b. Ambiguum placitum interpretari debet contra proferentem. An ambiguous Plea ſhall be taken ſtrongeſt againſt the pleader, for every one is preſumed to make the beſt of his own Caſe, and Coke l. 10. f. 50. Ambigua reſponfio contra proferentem28 eſt accipienda, the Biſhop of Sarums Caſe, vide ibidem.
In obſcuris ſecundum magis ſimilius eſt judicandum, vel quod plerumque inſpici ſolet. Regula. I. C. and Coke l. 4.13. & 14. Senſus verborum ex cauſa dicendi accipiendus eſt, & ſermones ſemper accipiendi ſecundum ſubjectam materiam. In obſcure and dark ſayings we are to judge according to that which is moſt likely, and which is wont to be, and the ſenſe of the words is to be collected from the cauſe of the ſpeech, and to be taken according to the ſubject of the matter. which rule ſeemeth to qualify, and moderate the other two, vide ibidem. S. Cromwells Caſe, as firſt in words, the Plaintiff bringeth an action upon the caſe for calling of him Murderer, to which the Defendant ſaid that as he was ſpeaking with the Plaintiff concerning unlawfull hunting, the Plaintiff confeſſed that he had killed diverſe Hares with Engins, to which the Defendant anſwered that he was a murtherer, innuendo a murtherer of Hares, and it was reſolved that the juſtification was good, for upon an action of ſlander the likelieſt ſenſe of words is to be taken, and collected out of the occaſion of the ſpeech, Coke ibidem.
And ſo in Deeds, as if I have a free Warren in my land, and let my Land for life, not mentioning the Warren, yet the Leſſee by implication ſhall have the Warren, 32. H. 6. which is the more likely meaning, for otherwiſe the Leſſor would have excepted the Warren.
Ʋnivocum denoteth words of a certaine and diſtinct ſignification and expreſſeth the thing cleerly without any obſcurity, or Ambiguity of which the Law taketh eſpeciall notice, for that certainty in all contracts, and conveyances is the cauſe of quiet and ſetlement of eſtates, but incertainty is the author of variance, and diſſention, from whence we have theſe notable grounds and maximes.
Miſera eſt ſervitus ubi jus eſt vagum, Coke l. 5. f. 42. a. God forbid that the inheritances of men ſhould29 depend upon incertaines, and it is a miſerable ſervitude where the Law is wavering, and therefore Ployd. f. 28. a. In every Common-wealth it is neceſſary and requiſite that things ſhould bee certainely conveyed, for certainty engendreth repoſe, and incertainty contention. The occaſions of which contention, our Law foreſeeing hath prevented, and therefore ordained that certaine ceremonies ſhould be uſed in the tranſmutation of things from one man to another, and namely of Frank-tenements which are of greateſt eſtimation in our lawes, to know the certaine times, when things do paſſe, and therefore in every Feoffment, the Law ordeineth that livery and ſeiſin ſhall bee made, and in every grant of a reverſion or rents that attornement ſhould be made, which are points certaine containing time, wherefore it is well obſerved by Sir Edward Coke in his Preface to the ſecond part of his Reports, that in all his time there have not beene moved in the Courts of Juſtice of England, two queſtions touching the rights of deſcent, eſcheats, or the like fundamentall points of the common-Law, ſo certaine, ſure and without queſtion are the principles and grounds thereof. That as Sir John Davis in his preface, there is no art nor ſcience which ſtandeth upon diſcourſe and reaſon, which hath her Rules and Maxims ſo certaine and infallible, and ſo little ſubject to diverſe interpretations as the common Law of England. Whence Sir Edw. Coke is bold to pronounce that the Common Law of England is not incertaine in the abſtract, but in the concrete, and that the incertainty thereof is hominis vitium non profeſſionis, the imperfection of man and not of the profeſſion, and lib. 6. f. 43. a. in particular blameth hee the ſubtile inventions, imaginations of men in the practiſe of uſes, which have introduced many miſchiefs & inconveniences, contrary to the ancient common law, which hath certain rules to direct the eſtates and inheritances of men, and therefore is it without compariſon30 better to have Eſtates and Inheritances directed by the certaine rule of the common Law, which harh beene the ancient, true and faithfull ſervant to this Common-wealth, then by incertaine imaginations and conjectures of any of thoſe new inventors of uſes without any approved ground of law or reaſon, Coke l. 6. f. 43. a.
And therefore in all caſes law and equity will that incertainty bee avoided, as the author of contention, and that there bee an end of all controverſies according to equity and right, which is the finall intention of all Lawes, Coke l. 8. 53.
And Coke l. 1. f. 85. a. The Judges ought to know the intention of the parties by certaine and ſenſible words which are agreeable and conſonant to the rules of Law, as if Land bee given by deed to two, to have and to hold to them and haeredibus, it is void for the inſenſibility and incertainty, and though it hath a clauſe of warranty to them and their heires, that ſhall not make the firſt wordes which are incertaine and inſenſible to bee of force and effect in Law, although his intent appeareth, but his intent ought to bee declared by words certain and conſonant to Law.
So Coke comment. f. 20. b. If a man letteth Lands to A. for life, the remainder to B. in taile, the remainder to C. in forma praedicta, the remainder is void for the incertainty.
And therefore Ployd f. 272. a. giveth this ground, that every contract ſufficient to make a Leaſe for yeares, ought to have certainty in three limitations, in the beginning of the terme, in the continuance, and in the end of the ſame, all which ought to be known at the beginning of the Leaſe, and the Leaſe that wanteth them, Mr. Brown, ſaid is but bibble babble, vide ibidem Fullers caſe, and Coke l. 6. f. 35. the Biſhop of Bathes caſe.
Ployd. f. 14. a. If I give all my mony in my purſe to I. S. hee cannot have an action for it, unleſſe hee alledge the certainty of it, ſo as without certainety31 the action is not maintainable according to the rule given by Bracton, incertae rei nulla eſt donatio, l. 5. c. 4. Ployd. f. 273. b. If a Leaſe bee made untill I. S. who hath execution of a Statute Marchant, is ſatiſfied of the duty for which hee hath ſued execution, this is not a good Leaſe and ſhall not bee called a terme for yeares, for it is not certaine how long the Leaſe ſhall endure, either for ſix years or for twelve yeares, ſo there is an incertainty of time at the end of the Leaſe, for a terme containeth certainty.
So if a Leaſe bee made from three yeares to three yeares, and ſo from three yeares to three yeares duering the life of I. S. it ſhall bee but a Leaſe for ſix yeares, for for ſix yeares there is certainty, and when he ſaith, and ſo from three yeares to three yeares it is all one as if hee had ſaid the firſt three yeares, during the other three yeares, which containeth certainty, but when hee goeth further and ſaith, and ſo from three yeares to three yeares, for the life of I. S. that containeth no certainty in it, for it is incertaine how many three yeares I. S. ſhall live, ſo that in the beginning the end is not knowne of the number of yeares intended, which is contrary to the nature of a Leaſe for yeares, Coke comm. f. 45. b. and Browne, and Dier ſaid it had beene ſo adjudged, vid. ibid. Ployd. ſaies, and Fullers caſe. So if a parſon maketh a leaſe of his glebe for ſo many yeares as he ſhall be parſon there, this cannot be made certaine by any meanes, for nothing is more uncertain then the time of his death, terminus vitae incertus eſt, & quanquam nihil eſt certius ipſa morte, nihil tamen incertius eſt hora mortis, Coke com. 45. b.
A grant to I. S or I. N is void for the incertainty, and if it bee delivered to I. S. the delivery of the deed will not make a voide grant good. 11. H. 7. 13. Noy. Max. f. 67.
Coke com. f. 310. b. If a reverſion be granted for life, and after it is granted to the ſame grantee for yeares, a•••he Leſſee attorne to both grants, they32 are void for the incertainty. So if the Lord by Deed granteth his ſigniory to I. Biſhop of London, and his heires, and by another Deed to I. Biſhop of London, and his Succeſſors, and the Tenant attorneth to both grants, the attornment is void for both grants, for albeit the grant bee but to one, yet hee hath ſeverall capatities, and the grants are ſeverall, and the attornment is not according to either of the grants, ibidem.
A gift made to one of the Infants of I. S. is void for the incertainty 11. E. 41. and Dier. f. 91. A grant is made for ſo many trees as may bee reaſonably ſpared, it is void for the incertainty, for who ſhall bee judge of the ſparing, the Vendor or the Vendee, and it ſeemeth that neither of them, yet by common intendment, the Vendor hath moſt knowledge which may bee ſpared. So if I bargaine with you that I give you for your Land ſo much as it is reaſonably worth, it is voide for default of certainty.
So a grant ſeniori & digniſſimo filio is void for the incertainty, for ſome will ſay that he who is moſt learned and knowing is the moſt worthy man, and ſome will ſay the moſt valiant man, and ſome the moſt liberall man, and ſo the multitude can never agree.
And by that the moſt potent man was alwaies preferred which is contrary to all Lawes, inde datae leges ne fortior omnia poſſit, Dav. l. 33.36. caſe of Taniſtry vide.
Coke com. So a releaſe doth not diſcharge Bayle before judgement becauſe it is contingent, and incertaine.
Coke l. 5. Samons caſe. B. in conſideration of ſix l. aſſumes to pay twenty pound to A. If hee doe not performe the award of I. S. which was that hee ſhould enter in obligation to A. that A. and his wife ſhould enjoy the Lands were in controverſie between them. B. would not enter into obligation, and it was adjudged the award was voide, for the33 incertainty becauſe it doth not appeare of what ſumme the obligation ſhould be, for the Arbitrators are Judges, and their award muſt be certaine to decide the controverſie.
Certum eſt quod certum reddi poteſt, Coke com. f. 43. b.
Though it be Bractons rule Terminus annorum debet eſſe certus & determinatus, as in every leaſe for years the terme muſt have a certaine beginning and a certaine ending, yet allbeit there appeare no certainty of yeares in the Leaſe, if by reference to a certainty, it may be made certaine, it ſufficeth, for that is certaine which may be made certaine. As if A. leaſeth his Lands to B. for ſo many yeares as B. hath in the Mannor of Dale, and B. hath then in the ſaid Mannor a terme for ten yeares, this is a good Leaſe to B. for ten yeares.
If a man make a Leaſe to I. N. for ſo many yeares as I. N. ſhall name, this at the beginning is incertaine, but when I. N. hath named yeares then is it a good Leaſe for ſo many yeares Ployd. f. 273. b.
For it is my demiſe and my contentment that hee name the yeares, which by my reference to his nomination, is as much as if I my ſelfe had named. But if a Leaſe bee made for ſo many yeares as my Executors ſhall name, and then I die, and my Ex••••s name the yeares, the Leaſe ſhall not bee good, becauſe they neither did nor could name the yeares during my life ibidem.
So if I make a Leaſe untill I. S. who is in Priſon for hunting, ſhall be in Priſon for it by order of Law, that is all one as if hee had made the Leaſe for two yeares, for by the ſtatute of W. 1. c. 10. hee ſhall bee impriſoned ſo long, ſo if I make a Leaſe for yeares, rendring five pound rent by the yeare, and then I grant the rent and reverſion to another untill hee hath received of the rent twenty pound, that is all one as if I had granted the reverſion for four yeares, and therefore the Leaſe containeth ſuch certainty34 of time by the reference. So if a Leaſe bee made during the nonage of I. S. who is of the age of fifteen yeares, it is a Leaſe for ſix yeares, if I. S. live ſo long, for the reference to the time certaine, is as much as if hee had expreſſed the nomination of the time contained in the reference. So if I make a Leaſe for ten yeares, and ſo from ten yeares to ten yeares, during a 100. yeares it is a good Leaſe, Ployd. ib. E. Coke l. 6. f. 20. The Biſhop of Bathes caſe. So a Leaſe for years after the Leſſee ſhall make ſuch an act is good, ſo a Leaſe for twenty yeares if the coverture betweene I. S. and his wife continue ſo long, although in one caſe, it was incertaine when the Leſſee would doe the act to make the Leaſe to begin, and in the other it was incertaine when the coverture would bee diſſolved, for a leaſe certainely lymited might begin, and determine upon uncertainety well enough, Ployd. ib.
If a man maketh a Leaſe for twenty one yeares, if I. S. live ſo long, this is a good Leaſe, if I. S. ſo long live, yet it is certaine in incertainty, for the life of I. S. is incertaine, Coke com. f. 25. b.
It is a Maxime in the Law, that no diſtreſſes can be taken that are not put into certainty, nor can be reduced to any certainty, for, id certum eſt, quod certum reddi poteſt, as the Lord cannot diſtraine them which hold their Tenements in Frankalmoine, if they will not doe ſuch divine ſervice, becauſe it is not put in certaine what ſervice they ſhall do, neither can it bee reduced to a certainty, for upon an avowry damages cannot bee recovered, for that which neither hath certainty, neither can bee reduced to any certainty, and yet in ſome caſes there may bee a certainty in uncertainty. As a man may hold of his Lord to ſheare all the ſheep depaſturing in his Mannor, although the Lord hath ſometimes a greater number and ſometimes a leſſer number, yet this is certaine enough, the incertainty being referred to the Mannor which is certaine, and the Lord may diſtraine for this incertainty, Coke com. f. 96. a.
35Incertainty may bee reduced to a certainty by matter, ex poſt facto, Ployd. f. 6. a. b. Raingers caſe. As a Leaſe for yeares rendring for every acre twelve pence, though the number of Acres bee not certaine by the Leaſe, yet by admeaſurement or other triall may the rent reſerved bee certainely knowne, by which he may bring his action of debt.
So if one gives two Acres to one Habendum, one for life, and the other in fee, it is incertaine, in which he ſhall have the fee, and which for life, yet if after hee make Feoffement of one acre, it ſhall bee ſaid to have fee, in the other ab initio, ſo if one ſell W. Acre, and B. Acre for life, the remainder of one of them in fee, it is incertaine which Acre hee in the remainder ſhall have, but if hee licence the Tenant for life to cut downe the trees in white Acre, then hee ſhall bee adjudged to have the remainder of that Acre ab initio. So 14. H. 8. f. 17. A grant of a terme upon condition that the Grantee ſhall obtaine the favour of the Leſſor, and pay ſo much as I. S. ſhould arbitrate, was good when the condition was performed, and the ſecond grant adjudged void. So 17 E. 4. f 1. in trespaſſe for corne taken, there the Defendant & the Plaintiff had bargained, & agreed that the Defendant ſhould go to the place where it grew and ſee the corne, and if it pleaſed him upon the ſight, that then hee might take it, paying to the Plaintiff forty pound for every Acre, and it was holden a good contract notwithſtanding the incertainty and quantity of the Corne, and of the groſſe ſum ſhall bee paid for it, becauſe upon the circumſtance the certainty might appeare, Ployd. ibidem.
Dyer. f 91. b. If I bargaine with you that I will give you for your Land as much as it is reaſonably worth, and it is referred to the judgement of a third perſon, hee ſhall ajudge it and then it is good, ſo if I ſell trees which then may eaſily be ſpared, and refer the judgement of the ſparing to a third perſon, if hee give judgement of it, it is good enough, becauſe36 by him it is reduced to a certainty with the Vendors conſent.
In our law the time, the eſtate, the thing, and the perſon not being ſufficiently expreſſed, by neceſſary coherence and relation to matter precedent, they are ſometimes made certaine enough, firſt for the time, if I. S. is bound to mee in twenty pound upon condition that I infeoffe him of B. Acre, that then hee will pay mee ten pound, if I infeoffe him preſently after, hee ought to pay the ten pound notwithſtanding there is no time limited when it ſhould bee paid, for Perkins puts the rule, if a condition hath a relation to the Act precedent, and no time is limited when it ſhall bee done, it ought to be done, when the Act precedent is done.
Secondy for the thing, though it bee put incertainly, yet the communication precedent makes it certaine, Dier. 42. a. where one was bound to warrant I. G. and doth not ſhew what thing hee ſhould warrant, the Law ſhall make conſtruction that hee ſhould warrant the land of which communication was made.
Thirdly, for the eſtate though it bee uncertaine, yet ſometimes it is made certaine by the matter precedent, as ſteward-ſhip was granted for life, and afterwards an annuity was granted for the exerciſe of that office, without declaring what eſtate hee ſhould have in the annuitie, and reſolved that he ſhould have the annuity for life, becauſe he had the Office for life, Coke l. 8.
Fourthly, for the perſon, the conſideration ſometimes aſcertaines the perſon, and therefore if lands be given to one by deed, Habendum ſibi una cum filia donatoris, in frank marriage, this ſhall enure to both, becauſe the feme is cauſa donationis, and by devorſe ſhee ſhall have the whole Land, and ſhall bee given together to the man for the advancement of the woman, Dier. 126. a. A man by intendment of Law the Land and the woman deviſeth that his lands ſhall bee ſold for the payment37 of his debts, and doth not ſay by whom, they ſhall be ſold by his Executors, becauſe they are lyable for the payment of his debts.
Licet id certum eſt, quod certum reddipoteſt id tamen magis certum eſt quod de ſemetipſo eſt certum. Coke l. 9. 47. a. The Patents of the King ought to be extended certainely to the thing of which the Patentee will take advantage, as 2 R. 3. 7. If the King grant to me that I ſhall not be High-Sheriff without ſhewing of what County, it is void for the incertainty. Quia conceſſio per Regem oportet fieri de certitudine, but if the grant was that he ſhould not be Sheriff of ſuch a County, there ſuch a grant is good.
Ployd. f. 395. a. If a Leaſe be of the mannor of Sale in Dale, which he had by deſcent of the mother, and he had the mannor of Sale by purchaſe and not by deſcent of his mother, in this caſe the Leſſee ſhall have it, becauſe the mannor of Sale in Dale is enough without further certainty expreſſed, and his ſaying that he had by deſcent is not requiſit, in that it was ſufficiently certaine before, for it is rather ſuper-abundance, then certainty, ſo M. 2. E. 4. f. 27. If one releaſe all his right in white Acre in Dale that he had by deſcent, but had it by purchaſe there he ſhall not avoid the releaſe by ſaying that he had not white Acre by deſcent, but had it by purchaſe, for the relation to the deſcent was in vaine, in that certainty appeared before ibidem, vide Coke l. 3. Doughtys caſe, f. 18.
Oportet quod certae perſonae, certae terrae, & certi ſtatus comprehendantur in declaratione uſuum, Coke l. 9. f. 9. a. Every declaration of uſes upon Recoveries, Fines, &c. of Lands, Tenements, and Hereditaments ought to be certaine, for otherwiſe there ſhall be no certainty of inheritances, and that certainty ought to be principally in three things, in perſons to whom, in Lands, &c. of whom, and in eſtate by whom uſes ſhall be limited, and declared, and if certainty faile in any of them, the declaration is inſufficient.
38Certa debet eſſe intentio, & narratio, Bractton, lib. 2. All declarations ought to be certaine, ſo as the Defendant may know to what thing he ought to anſwer, Ployd. 84. a. As 3. E. 4. f. 21. A man retained in husbandry brings an action of debt againſt a Prioreſſe for his ſalary, and declares that he was retained with her Predeceſſor, and doth not ſhew what perſon retained him, and by the better opinion the count ſhall abate for the incertainty, for that it might be that one that had no Warrant retained him. And ſo is it in a Writ, Ployd. ib. vi. a. 22. E. 4. f. 47. It was granted by Parliament that Aſhby ſhould have a writ with Proclamations out of the Chancery againſt one Griffeth to anſwer for diverſe Treſpaſſes which were contained in the Act of Parliament, and the Writ by award was abated becauſe he made no mention of the Treſpaſſes in certaine, and there it varied from the Act, but that was a private Act, and therefore the non-recitall of it makes the Writ naught, and ſo ſhould the miſ-recitall, but the recitall of a generall act, or the miſ-recitall of a generall Act is not material, but the Judges are bound to take notice of it without the monſtrance of the party.
Oportet ut res certa deducatur in judicium, Coke l. 5. f. 321. a. Playters Caſe, P. brought an action of Treſpaſſe againſt W. Quare clauſum ſuum fregit, & piſces ſuos cepit, without ſhewing the number or nature of the Fiſhes, and it was reſolved that the count ſhould have comprehended the Fiſhes in certaine, that the Defendant might have a certaine anſwer, and upon which a certaine judgment might be given, as 4. H. 6. n. the writ was quare piſcem cepit, and counts of ſo many Pikes in certaine, and though the writ was piſcem in the ſingular number, yet good becauſe per ſe eſt nomen collectivum, in which the plurall number is comprehended, and great inconvenience otherwiſe would enſue, for unleſſe the iſſue hath certainty with which the Jury may be charged: upon ſuch a generall incertainty, if they give a falſe verdict, they may be charged in attaint, and f. 38.39 a. Teyes caſe, In a fine the ſame thing was granted and ſurrendred to ſeverall perſons, and of ſeverall eſtates, and ſo repugnant and erroneous, for a fine is like unto a Judgment, for a Scire facias lyes to execute it as of a Judgment, and oportet, as Bracton ſaith, quod certa res deducatur in Judicium.
Ployd. Manhells Caſe, f. 10. b. If three iſſues bring three ſeverall Formedon•, he whoſe writ is firſt returned ſhall have the Land, for by it he hath firſt attached the poſſeſſion in the hands of the tenant, and the writ is not of Record before the returne, but if all the three Writs be returned on the ſame day, they ſhall all abate, becauſe it is incertain by the count, if the Tenant confeſſe the actions, to whom they ſhall award ſeiſin, becauſe all their titles are alike, and all returned on the ſame day, and for that incertainty the writs ſhall abate, as 21. R. 2. Fit. avowry p. l. 262. In a Replegiare againſt two, the one avows for Damage-feaſant, and the other avows that he had common in the Land, and tooke the beaſts as a commoner Damage-feaſant, and by the award of the Court both the avowrie was abated, and the Plaintiff recovered damages againſt them, becauſe every of them could not have the returne, and who ſhould be preferred, and who rejected would be incertaine to the Court, vide.
Ployd. f. 84. a. b. Partridges caſe, In ſome caſes the count and the writ may be generall without certainty as in aſſizes, but there the certainty muſt be ſhewen by the replication, and in ſome caſes the writ, the count, and the replication alſo may be incertaine, but the certainty ſhall appeare by verdict. As in a Quare impedit the value of the Church doth not appeare in the count, nor in the replication but it ſhall appeare by verdict, for they ſhal aſſeſs double damages, or damages for halfe a yeare according to the value of the Church as the caſe requireth, ſo in a writ of Ward, the Jury ſhal find if the heir be married or not, and ſhall aſſeſſe da••ges for it, and yet in the count, and replication, no ſuch matter appeareth. 40So in a detinue the valew of the goods appeareth by verdict, and in many other caſes. So as the certainty allwayes muſt appeare to the Court, and if it be requiſite to be ſhewen in the count; then it ought not to be left out, or omitted in the count, as Ployd. f. 85. a. In decies tantum he muſt ſhew the certainty of the ſum received, becauſe he ſhall recover ten times more, and that he cannot unleſſe he ſhew how much it is.
And in Treſpaſſe if the Defendant pleade that it is his Frank-tenement, and the Plaintiff intitles himſelfe by a leaſe for years made by him, and if the Defendant will ſhew that he made a Feoffment, and that he entered for the forfeiture, he muſt ſhew the name of the Feoffees, and certainty of the Feoffment, for in all caſes the privy ought to ſhew the certainty, and in caſe of forfeiture, the Leſſor in the reverſion is privy to it.
So if the heire will pleade in bar in a writ of Dower, the detainer of evidences, he muſt ſhew the certainty of the evidencies, for he is privy to them in that he affirmeth that they appertaine to him, but if he ſay a bag enſealed with Charters, that is good without ſhewing the certainty of them, 18. H. 8. f. 1. B. Dower.
And if one be bound in an obligation to ſerve I. S. for ſeven years in mandatis omnibus ſuis licitis, he ſhal pretend that he did ſerve him lawfully, without ſhewing in what ſervice, or in what commandement, for no ſervant can remember all, 20. E. 4.13.
So a man may aver a thing to be done by Covin without ſhewing how the Covin was, for Covin is a ſecret thing contrived between two or three to the prejudice of another, 4. E. 6. 46.
And a man may pleade that he was choſen Knight for the Shrie, by the greateſt number without ſhewing the number, for the election may be by voyces, or hands, or in oth••ſort, and it is hard to diſcerne the certaine number, and yet eaſy to ſee who had41 the greateſt number, 2. M. 128. vide Ployd. f. 121. b.
Coke Com. f. 303. c. Every Plea muſt be direct and not by way of argument or reherſall, and an argumentative Plea is not good, Ployd. f. 122. a. b. for there is a ground in the Law, that in declarations certainty ought to be alledged by apt words of affirmation, otherwiſe the declaration is not good. As in debt upon an obligation I declare that it appears by the obligation that the Defendant is bound to me in twenty pound, the declaration is not good, becauſe it was alledged in matter of fact quod tenebatur mihi in twenty pound, for bond is alledged for recitall onely. So 11. H. 6. In an action of debt againſt a goaler, who had let one at large who was in execution under guarde for the ſum in demand, and declareth that he let him at large by which the Plaintiff excluſus fuit de debito ſuo, and the declaration not good, becauſe he did not ſay that he was not ſatisfied when he let him at large, which is the cauſe of the action, which he hath not alledged but by implication, for by implication it is alledged, for if he let him go at large by which he is barred of his debt againſt the priſoner, by it is implyed, that the debt was not then paid, but the count was not good, becauſe it was not affirmed by preciſe words, and 38. H. 6. f. 14. The Plaintiff in an action of debt counts that the Defendant retained him in his ſervice for eight years, to ſerve him in all occupations, taking for every yeare 20 s. and the Defendant gageth his Law, and though the Plaintiff was retained in husbandry, and the ſervice of husbandry was implyed in the words all occupations, yet the Defendant was received to his Law, becauſe it was not fully expreſſed that he was retained in husbandry, but onely by implication, which would not ſuffice, So Ployd. f. 143. b. The Covenant in the Indenture was, if one moyety of the Rent was behinde and unpaid after two moneths ſince the Feaſt, &c. that then, &c. and in the rejoynder it42 was alledged that one moyety was behinde per duos menſes, by the ſpace of two moneths, which was no anſwer, becauſe the Indenture is if it be behinde after two moneths poſt duos menſes, and he ſaid it was behinde per duos menſes which is no affirmation that it was behinde after two moneths, but by implication, and argumentation, and not otherwiſe, and therefore not good.
Every Recovery had in our Law muſt be pleaded certainly to every intent, Ployd. 65. a. as in 22. E. 4. f. 8. in a Scire facias to have execution of two hundred Acres of Land, the Tenant pleaded that ſince the Scire facias ſued that I. B. brought a Formedon of one hundred Acres inter alia, and recovered and had execution, judgement of the breif for parcell, and there the opinion was, the Plea was not good, for every Recovery ought to be pleaded certianly to every intent, and thoſe words inter alia are certaine to no intent, and it is good reaſon, for every Recovery is entire, and there is one originall, and one judgment upon it, and ſo the judgement is one and entire, and therefore to ſay that inter alia he did recover is not good, but ought to plead certainly.
If a Bar hath matter of ſubſtance, and is good to a common intent, it ſhall ſuffice, although it be not good to every ſpeciall intent, Ployd. Coltherſts Caſe, f. 26. a. and as Coke Com. 303. There are three ſorts of certainties, firſt to a certaine intent in generall as in counts, replications, and other pleadings of the Plaintiff, 2. A certaine intent to every particular as in Eſtopples, 3. A certainty to a common intent, and this is ſufficient in a Barr which is to defend the party, and to excuſe him; and of this certainty it is ſaid the Bar ſhall be good, if it be good to a common intent, Ployd. f. 31. a. but this common intent is not ſuch an intent, which may be indifferent, but ſuch an intent that hath more vehement preſumption in intendement, then any other intent hath, as fully to adminiſter all the goods which were to the teſtator the day of his death, is a good Bar, yet43 it may be he had other goods which were never in the hands of the Teſtator, which are Aſſets, as debts paid after, or goods which come in liew, &c. but that is not the moſt common intent, but the more common intendement is, that he had not any other goods but thoſe which were the Teſtators; So in a Formedon in deſcender, ne donna paſs is a good Barr, yet it may be he hath recovered in value, in which caſe other Lands were given, and yet the Formedon lyes, but that ſhall not be intended, but the common intendement is to expreſſe the plaine guift by livery, but if I pleade in Bar a leaſe for anothers life, there the Bar is not good without averring the life of cefis que vie, for it was indifferent whether he was in life or no, and hath no more ſtronge intendement the one way then the other, & therefore his life muſt be averred by expreſſe words, ſo in debt upon an obligation, if the Defendant pleade in Barr a releaſe, bearing date ſince the obligation made, that Bar is not good, if he doth not ſhew by expreſſe words that it was delivered ſince the obligation made, for prima facie one will preſume that it was delivered when it bore date, but of the other part it ſhall be preſumed alſo, that the other would not bring an action of debt, if the releaſe was delivered ſince, and ſo one way it hath as vehement preſumption as another, and for that the intendement is indifferent, it is not good unleſſe it be ſhewen by the Plea that it was delivered ſince the obligation made, Ployd. ibidem vide plura f. 26.
SƲbſtantia prior & dignor eſt accidente, Ariſt. 2. de anima, the ſubſtance is more worthy, and before the accident, and therefore doth the Law prefer matters of ſubſtance before forme and circumſtance, as 21. 44H. 7. 24. b. Pleas in Barr, and replications, though the Plaintiff be afterwards non-ſuit, make an Eſtopple, for they are expreſſe allegations, and ſubſtantiall, as in debt upon an obligation if the Defendant pleade in Barr, an acquittance made at D. or if the Defendant pleade an acquittance, and the Plaintiff replyeth that it was made by dureſs of imprisonment at D. now in another action, neither the Defendant ſhall pleade that the acquittance, nor the Plaintiff that the dureſs was at another place becauſe they were materiall. But the matter in the writ, and the count maketh no Eſtopple, for they are but ſuppoſalls. As in a Pormedon, one claimeth by deſcent from I. S. or a Mortdanceſter as ſonne, and Heir of I. S. yet in another Formedon, he may claime from I. D. and ſhall not be eſtopped.
No more ſhall a recitall make an Eſtopple, for they are not materiall, as 33. H. 6. 10. b. where A. reciting that he is ſeiſed in fee of the Manner of D. granteth a rent out of it to B. this ſhall not eſtoppe A. to ſay that he had nothing in that Mannor, Finch, nomotec. f. 32.
Neither ſhall counts and declarations abate, ſo long as the matter of Action, is fully ſhewed in the Declaration, and the writ, as by the Statute of 36. E. 3. c. 15. it is provided.
And therfore in Demurrers it is alledged that the matter contained in the count, is inſufficient in Law, and ſo of a plea, and accordingly in the raigne of Queen Eliz. proviſion is made, that after demurrers the Judges ſhall give Judgement according to the right of the cauſe, and matter in Law, without regarding any imperfection, defect, or want of forme in any Writ, Retorne, Plaint, Declaration, or other pleadings, or courſe of proceedings whatſoever, which Sir Edward Coke ſtiles an excellent, and profitable Law, Coke Com. 304. b. All which are more fully contained in the late Act of 11. Mar. 1649. by which it is enacted, that no judgement ſhall at any time or times be arreſted or ſtayed in any Court of Record for want of any matter of forme, or defect45 whatſoever except only for matter of ſubſtance which ſhall be found or ſhewed pulickly to the Jude or Judges ſitting in the ſaid Courts of Record, to be in the declaration, Plea, replication or other proceedings after apparance.
And beſides in common recoveries no formall errors ſhall be allowed to reverſe them unleſſe they be ſubſtantiall and materiall, as by the ſtatute of 23. Eliz c. 4. it is provided that for the avoiding of the danger of aſſurance of Land, and for the advancement of common recoveryes, that not any common recovery ſhall be avoided for any want of forme in wordes and not in matter of ſubſtance, ſo much doth the Law reſpect matter of ſubſtance, before matter of form & circumſtance, Coke c. f. 40.2.
Idem non poteſt eſſe agens & paciens. 14 H. 8. 31. b. nihil agit in ſeipſum. Ariſt. 1. de gener. no man can do an act to himſelfe.
No man can ſue himſelf, and therfore when a man having right to Land hath the freehold caſt upon him by a latter title, he ſhal be ſaid to be in of his ancient title, becauſe there is no body againſt whom he may ſue but himſelfe, and he cannot ſue himſelf, Lit.
A man cannot preſent himſelfe to a benefice, or make himſelfe an Officer, 13. H. 8. 32. No man can ſummon himſele, 8 H. 6.29. And therefore if a Sheriff ſuffer a common recovery, it is error, becauſe he cannot ſummon himſelfe, Dier. 188. But when two Sheriffs are, the one may ſummon the other with ſpeciall direction in the Writ, that the other ſhall ſummon him, 14 and 15. Eliz. If a Sheriff be Conuſee of a Statute he cannot execute a liberate himſelfe, 9 E. 4. 33.
Plaintiffe and Defendant,Exception. and Actor and Reus are relative oppoſites, and cannot be properly in one, and the ſelfe ſame action, except in ſome ſpeciall caſes, as in a writ of detinue where garniſhment is required, there the Defendant is to become actor againſt the garniſhee, 3 H. 6. 18. ſo in a quare im•edit where the Defendant maketh title46 to have a Writ to the Biſhop, the defendant is become actor, 20 H. 6. 29.
In a Replevin upon an avowry made, the avowant is become actor, 3 H. 6. 19. a. 23. H. 6. 45. a. 12. E. 4. 10. a.
So in a Quod deforceat the demandant or Plaintiff ſhall defend his eſtate againſt ſuch recovery as ſhall be pleaded againſt him and become defendant, and may vouch ac ſi tenens eſset in priori brevi, by the ſtatute of W. 1.
A Sheriff who is demandant, may execute all proceſſe till it come to the Venire facias, otherwiſe if he be Tenant 20. E. 4. 7.
A Sheriff is Plaintiffe, for he may take pledges himſelfe and execute a Replevin againſt himſelfe, 5. H. 7. 2.
The Sheriff is in ſeiſin of a Baly-wick of a liberty, he ſhall command himſelfe as Bayliff of that liberty to execute that proceſſe, 8 E. 3. 21. F. B. N. f. 4. E. There is a Writ of prohibition in the Regiſter directed to the Sheriff to inhibit himſelfe that he hold not plea in the county upon a ſorreine Plea pleaded, or the Miſe joyned to be tried by grand aſſiſe.
Actori incumbit onus probandi & ſtabilitur praeſumptio donec probetur in contrarium, the burden of proving lieth on the Plaintiff, and the preſumption is confirmed untill it be proved to the contrary, Cok. l. 4. f. 70. There is a bargainor and a bargaince, if this bargainor contend to avoid the bargaine by reaſon of the non enrolement within ſix months, he muſt make manifeſt proofe thereof, or elſe it will be preſumed that it was inroled within the ſix months, omnia praeſumantur legitime facta, donec probentur in contrarium, Coke com. f. 233. b. As whereas the feoffee giveth or granteth to the feoffor the deed pol, ſuch grant is good, and the property of the deed ſhall appertaine to the Feoffor, and when the feoffor hath the deed in his hands and pleadeth it in Court, it ſhall be rather47 intended that the feoffor commeth unto it by lawfull meanes then by a tortious meane. For all things are preſumed to be lawfully done untill they may be proved to the contrary. A. and B. Tenents in common of a Mannor, A. purchaſeth a frank tenement mixt with the demeſne Lands, which were not certainly knowne. B. brings a writ de partitione facienda of the Mannor onely, and judgement given, that partitio fieret and a Writ to the Sheriff accordingly. It is held by the Juſtices that A. muſt ſhew the bounds of the franktenement purchaſed, for the Jury ſhall be diſcharged, if in conſcience they make partition de tanto quanto praeſumitur & dignoſcitur per praeſumptiones & veriſimilia of ſo much as ſhall be preſumed and knowne by preſumptions and likelihoods, Dier. f. 266.
Pendente lite nihil innovetur, Let nothing be innovated hanging the ſuit, Coke com. 344. b. if hanging the quare impedit againſt the Ordinary for refuſing his Clark, and before the Church was full, the Plaintiff brought a quare impedit againſt the Biſhop, and hanging the ſuit, the Biſhop admitted and inſtituted a Clark at the preſentation of another, if judgement be given for the patron againſt the Biſhop, the patron ſhall have a writ to the Biſhop, and remove the incumbent that came in pendente lite by uſurpation, for hanging the ſute nothing is to be innovated.
Qui ſemel actionem 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 the48 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 w•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 quod49 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 relationē una vitiatur & ſecundū aliā 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 a50 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 the51 reſcous, upon whoſe poſſeſſion no diſtreſſe could be made, 31. Aſſ. 1.
Ployd. 281. a b. If one taketh letters of adminiſtration of the Ordinary, of the goods of one which died inteſtate, and after the Metropolitan committeth the adminiſtration to another, becauſe the inteſtate had goods to the value of ten pound in diverſe Dioceſſe, there it diſproveth the authority of the firſt adminiſtrator, and ſhall make the ſecond Adminiſtrator to avoide the act of the firſt Admiſtrator, for the relation after the probat taketh away all imperfection that before may be alledged, and ſhall over-reach the adminiſtration and the authority of the Adminiſtrator, as the Lord Dier termes it, and Keble ſaid in this caſe W in H. 7. that the ſecond Adminiſtrator ſhall have an Action of treſpaſſe againſt the firſt Adminiſtrator, for taking of the firſt goods, for the firſt Ordinary which committed the adminiſtration had not authority to do it, when the inteſtate had goodes to the value of ten pound in diverſe Dioceſs, but the adminiſtration and all dependance upon it were utterly diſproved by the commiſſion of the ſecond adminiſtration, vide ibidem plura, in Greisbrookes caſe.
So 38. H. 6. 7, Goods taken out of the poſſeſſion of an Executor which refuſeth, and an adminiſtration is committed to I. S. I. S. may have an action of treſpaſſe ſuppoſing they were taken out of his poſſeſſion, for he by relation ſhal be ſaid to be an adminiſtrator from the very time of the death of the teſtaor.
Relation is a fiction in Law, and a fiction in Law is a fained conſtruction, when in a ſimilitudinary ſort the Law conſtrueth a thing otherwiſe then it is in truth Finch nomot. f. 66. and is of the perſon or the thing.
QƲi facit per alium per ſe ipſum facere videtur, Coke com. f. 258. a. He that doth any thing by another ſeemeth to doe it by himſelfe, As the ſervant by52 command of the Maſter may make claime from the Land for his Maſter, if the ſervant doth all that which he was commanded, and which his Maſter ought to doe, there it is as ſufficient as if his maſter did it himſelfe. And if the diſſeiſor levy a fine according to the ſtatute, with proclamations, and a ſtranger without any command precedent, enter in the name of the diſſeiſee to avoide the fine, if the diſſeiſee after aſſent to the ſaid entry of the ſad ſtranger, it ſhall be as ſufficient as a command, for omnis ratihabitio retro trahitur & mandato aequiparatur, Reg. 1. C.
Every ratification or approving of any thing looketh back, and is all one as if a man had give commandement at the firſt.
Ployd. f. 290. a. Chapmans caſe. If I will by my laſt will that I. S. alien my Land, and he doth ſo, it is my alienation by him, and if I give authority to my Bayliff to ſell my ſheep or other cattle, and he doth ſo, it is my ſale by him, and Ployd. 475. b. In Sanders caſe.
If I command one to beat another, and hee beats him ſo as he dieth of it, I ſhall be acceſſary to the murther, for my commandement was the foundation of it, and my commandement outreacheth to all that which followeth the fact. So if I command one to burne an houſe feloniouſly in the night, and he doth ſo, and the fire thereof burneth another houſe, I ſhall be acceſſary to the burning of the other houſe, and if I have a pardon for the one, I ſhall be hanged for the other, but if I command one to burne ſuch an houſe which he well knoweth, and he burneth, another I ſhall not be acceſſary, or if I commanded him to rob a Goldſmith, going to Sturbridge faire, and he breaketh open his houſe in Cheapeſide and ſtealeth his Plate, I ſhall not be acceſſary to that burglary, becauſe there is no affinity between the fact and my command, but if I command one to kill him with poyſon and he killeth him with a Sword, or to kill one in the field,53 and he killeth him in the city, or to kill him ſuch a day and he killeth him another day, it is murder in me, becauſe the death is the principall matter that hath enſued upon my commandement, and the place, the inſtrument, and the time, and ſuch like are nothing, but the manner, and forme, how he ſhould be ſlaine, and not the ſubſtance of the matter, and the variance in manner and forme ſhall not diſcharge him from being an acceſſary, ibidem.
So an acceſſary before the fact is ſubject to all the contingencies pregnant of the fact, if they be purſuances of the ſame fact, as if a man command, or councell a man to rob another, or beat him grieveouſly, & murther enſueth, in either caſe he is acceſſary to the murther, quia in criminalibus praeſtant accidentia, 18. E. 175.
If I command one to doe a treſpaſſe, I ſhall be a treſpaſſor, or if I conſent, for there are no acceſſaries in treſpaſſes, N. Max. f. 99. In treſpaſs againſt A. the indenture is that B. did ſtrike me by A. invitation, and well, 39. H. 5. 42.
If a man have a Baylife or ſervant, who is known for his ſervant, and he ſend him to faires and markets to buy, to ſell, or do any thing marketable, his Maſter ſhall be charged with the payment, if the thing which is Merchandiſed comes to his uſe, and ſo if a man ſend his boy to Market, conſideratis conſiderandis, 2. R. 2. det. 3. per curiam. And if a man maketh another his factor to buy things for him, if he buy Marchandiſes of any, the maſter ſhall be charged by this contract, though the goods come not to his poſſeſſion, becauſe he gave him ſuch power. 4. E 2. det. 168. by Pigot.
If a ſervant borrow or receive mony in his maſters name, the maſter ſhall not be charged, unleſſe it be done by his maſters commandement or come to his uſe by his conſent, and it is a rule in the civill Law, quod juſſu alterius ſolvitur pro eo eſt, quaſi ipfi ſolutum ſit, Noy, Max. f. 99.
A promiſe made to the wiſe in conſideration of a54 thing to be performed by the husband, if the husband agree and performe the conſideration in an action of the caſe, &c. he ſhal declare the aſſumption made to him, Ib. f. 19.
An annuity is granted to one untill he be promoted to a benefice by the grantor and his heires, in a Writ of annuity he ſheweth that the Plaintiff was promoted by his brother at his requeſt, and well, 35. E. 3. 51. Dier. 241. It is no good returne for the Sheriff, Mandavit baliivo Itineranti, who anſwereth, that he is arreſted and made a reſcous, for it is the arreſt of the Sheriff himſelfe, and if it were a capias ad ſatisfaciendum, or a capeas utlegatum after judgement, the Sheriff himſelfe ſhall be charged with the eſcape, unleſſe it were by the enemies of the King, and he ſhall have his remedie over againſt him who made the reſcous by action of the caſe, but if he had been a Bayliff of a Liberty it had been a good returne.
The Prior of St. Joanes had a priviledge from Rome, that he ſhall pay no Tythes for any Land, quae propriis manibus aut ſumptibus excolitur, which is tilled with his owne hands or at his owne charge.
The Prior maketh a Leaſe for yeares before the diſſolution, the King after the diſſolution granteth the reverſion, it was holden that after the terme expired the Patentee ſhould hold it diſcharged, ſi propriis manibus aut ſumptibus excolitur, if it be tilled by him or his ſervants, but if he make a Leaſe to a farmer he ſhall pay tythes by the Stat. of 31. H. 8. c. 13. Dier. Entry with my beaſt is my entry, and ſo the Plaintiff ſhall declare upon a clauſum fregit, 15. E. 4. 29. 1. E. 4. 15.
If a mans ſervant ſelleth to me cloth, and warranteth it to be of a certaine length, the action will lie againſt the maſter onely and not againſt the ſervant, and if A do aſſume to cure B. of a wound, and he ſendeth his ſervant to B. to lay medicines to the wound whereby he is hurt, and emparied, B. ſhall have an action againſt the Maſter and not againſt55 the ſervant, Fulb. l. 1. f. 4. 11. E. 4. 6. By Choke and Brian. The Chancellor of the Augmentation Court, delivered an obligation made to Queene Mary, to his Servant to deliver to the Clerks of the Augmentation; The Obligor, and his ſervant conſpire together, and cancell the obligation, the Maſter was held in this caſe to be chargeable, Dyer 161. If a receiver, or Bayliff make a deputy, the Writ of account ſhall be brought againſt the Bayly only, becauſe the mony was received to his uſe, 18. H. 8. 2. Fulb. l. 2. f. 43.
A leaſe for years is made, and a letter of Attorny, to deliver poſſeſſion to the Leſſee, if the Attorny deliver poſſeſſion to the Attorny of the Leſſee, it is a good poſſeſſion, and purſuing his authority, 25. Eliz. The Earle of Leiſters Caſe.
Yet many perſonall things cannot be done by another, as Sute reall at the Leete,Exception. or the Sheriffs turne cannot be done by another, Fu•b. l. 25 2.
A man cannot excuſe himſelfe by an Attorny for contempt, as for not ſerving the Kings Proceſſe, but in proper perſon, 22. E. 4. 34.
An action of debt upon an obligation, the Defendant confeſſed the Deed, and ſaid that he had paid the ſumm to one C. the generall receiver of the Plaintiff, who ſaid he was ready to receive the mony, and ſhewed to the Court the acquittance, but becauſe he ſhewed no warrant of the Plaintiff to pay the money to C. the acquittance that was ſhewed could not be the Deed of the Plaintiff, and therefore the Plaintiff recovered his debt and damages, 5. E. 3. 63. Fulb. l. 1. f. 4.
Quod per me non poſsum, nec per alium, Coke l 4. 24. b. What I cannot doe by my ſelfe, I cannot do by another, Cuſtome hath ſo eſtabliſhed, and fixed the eſtate of the Copyholder, as by the ſeverance of the inheritance, the Copyholder of the Mannor is not diſtroyed, for in that the Lord himſelfe cannot ouſt the Copy-hold, no more can any one claiming under him doe it, for what I cannot doe by my ſelfe56 I can do by another, vide ibidem, the caſe between Marrell and Smith.
Coke l. 11. f. 87. a. In the caſe of Monopolies, A patent was granted by the King unto Edward Darcy for the ſole making of Cardes, who had made a deputy, but it was held void to both, for in that it was voide to the Grantee becauſe he was inexpert, and the grant made void to him, he could not make any expert deputy to ſupply his place, for what I cannot doe by my ſelfe I cannot doe by another.
Acceſſorium non ducit, ſed ſequitur ſuum principale. An acceſſory doth not leade, but followeth the principall, Co. Com. 152: a. The incident ſhal paſſe by the grant of the principall, but not the principall by the grant of the incident. As a leaſe for terme of life rendring rent, the Leſſor granteth a reverſion to another, the tenant aturneth, all the rents and ſervices ſhall paſſe by the word reverſion, but if he grant the rent to another, the Reverſion ſhall not paſſe by it, Littleton ibidem, a Leaſe of a Mannor wherein is a Parke, and Fiſh-ponds, excepting the game, and after the Leſſor grants the reverſion, the Deeres and Fiſh ſhall paſſe as incidents with the reverſion.
A Statute new made gives an action where none lay before, the ſame Proceſſe, Judgement and Execution ſhall be in the ſame action as was in other caſes at the common Law, though the Statute ſay no ſuch thing, 10. H. 7. 10.
Coke l. 5. f. 21. b. A Parſon is bound to a Prior in one hundred pound, upon condition that he reſigne his Church within a certaine time to the Prior for a certaine penſion, as they ſhould agree, &c. and afterwards the Prior, and the Parſon agreed of a penſion of an hundred ſhillings, and yet the Parſon refuſed to reſigne, and by the whole Court it was holden that he needeth not to reſigne untill he was ſure of his penſion by Deed.
Ployd. 235. a. When a man hath a thing by reaſon57 of another, the thing which comes by reaſon of the other ſhall be ſaid to be had in the ſame capacity as the other was which was the cauſe of it, as 41. E. 3. f. 21. If a Biſhop having a villain in right of his Church, enter into the Land purchaſed by the villain, he ſhall retaine it as in right of his Church. So if the King have a ſigniory in right of the Crowne, and the Tenant ſeiſe, and diſclaime, by which the King recovereth the tenancy, he ſhall hold it in right of the Crowne, becauſe in that right he held the ſigniory which was the occaſion of the Recovery, ibidem, Williams caſe.
Noxa caput ſequitur, & acceſſorium ſequitur ſuum principale, Reg. I. C. The offence looketh on the head, and the acceſſory followeth the principall. Coke l. 4. f. 44. b. Every Felon is either a principall or an acceſſory, and if there be no principall, there cannot be any acceſſory, becauſe the acceſſory followeth the principall, and therefore was Vaux held by the Court to be a principall murtherer, although he was not preſent at the time of the receit of the poiſon, and if any other had procured Vaux to do it, he had been acceſſory, vide ibidem plura, Vaux Caſe.
Coke Com. 57. a. b. In the higheſt and loweſt offences, there are no acceſſories but all principalls, as in Riots, Routs, and forcible Entries, and in other tranſgreſſions vi & armis, So in the higheſt offence as crimine laeſae Majeſtatis, there are no acceſſories.
And by our Law in murther all that be preſent, aiding, abetting, or comforting him doth the murther, are principall offenders though they give no ſtroke, for the ſtroke of him that woundeth is the wounding of all the others in Law, 4. H. 7. 18. Ployd. 100. a.
Facinus quos inquinat aequat. An offence equalleth thoſe are tainted with it. If one receiveth the goods and not the felon, he is acceſſory to the Felony, if he knoweth the goods to be ſtolen.
58If a man receive a man is attainted of Felony by Outlawry in the ſame County, though he be ignorant of it, yet is he acceſſory to the Felony, becauſe the Outlawry is a matter of Record of which every one ought to take notice.
A Servant procureth another to kill his Maſter, this is no pety Treaſon in the Servant, becauſe it is but Felony in the other which is the principall, 40. Aſſ. Pl. 25. For things acceſſary are of the nature of the principall. Principio dato ſequantur c••comitantia, Reg. I. C.
A Parſon granteth an Annuity with a nomine poenae, the Succeſſor ſhall be charged with a nomin poenae, due in his Predeceſſors life, and not his Executors, 7. H. 6. 190.
The profits of the office of Filizer cannot be put in Execution upon a Recognizance, or Statute, becauſe the office it ſelfe being an office of truſt cannot, 26. H. 1. Dyer. 7. b.
Tithe is not payable of Okes, Aſh, and Elme, uſually lopped, and topped, though it be every ſeven or eight years, for the br•nches are of the nature of the principall, for which no tithes are to be paid, if they be of twenty years ſtanding, according to the Statute of 5. E. 3 c. 3. Ployd. f. 470. b. Molins Caſe.
Ployd. 381. a. If one grant eſtovers to another to be burnt in ſuch an houſe, it is appurtenant to the houſe, ſo if common be granted in ſuch a place to one for his beaſts levant and couchant in his Farme of Dale, the common is appurtenant to it, ſo as he who hath the houſe after, by what title ſoever he cometh to it, ſhall have the eſtovers, and he that afterwards cometh to the Farme ſhall have the common, and they ſhall not be ſevered unleſſe by extinguiſhment, vide ibidem plura, 12. Eliz. 381. 5. H. 7. 7. 26. H. 8. 4. common.
Lord and Tenant by fealty, and homage, the Lord releaſeth his fealty, this is voide, for fealty is incident to homage, 7. E. 4. 11.
Court-baron is incident to a Mannor, Court of59 Pypowders to a Faire, therefore one cannot grant the Mannor or Faire reſerving thoſe Courts, 19 H. 8. Bro. Incidents.
Coke Com. f. 3 49. b. If a man be remitted to the principall, he ſhall be remitted to the appendant and acceſſory, as if Tenant in taile of a Mannor whereunto an advowſon is appendant be diſſeiſed, and the diſſeiſor ſuffereth an uſurpation, if the diſſeiſee enter into the mannor, he is alſo remitted to the advowſon, vide ibidem plura.
Quod non valebit in principali, in acceſſorio & conſequenti, non valebit, what doth not availe in the principall, ſhall not availe in the conſequent, and acceſſory, Coke l. 8. f. 78. b. As tenant in taile, the Remainder in fee, and the Tenant in taile ſuffereth a common Recovery: The reaſon of the Bar for the eſtate of him in the Remainder who is an eſtranger to the Recovery, is by conſequence, becauſe a common Recovery barreth the Eſtate of Tenant in taile who is a party to the Recovery, and by conſequent all the Reverſions, and Remainders of common perſons expectant upon it: But when the Act of 34. H. 8. provides, that no common Recovery had againſt Tenant in taile, who is party to the Recovery ſhall not bar his Iſſues when the King is in Reverſion, by it it is included that the Act preſerveth the reverſion, and remalnder in taile of the grant of the King, for they cannot be barred, but when the eſtate taile upon which they depend is barred; for that which not availeth in the principall wil not availe in the acceſſory, and conſequent, vide.
Ployd. f. 38. c. b. The office of the King of Heralds was granted to Garter, cum feodis, & proficuis ab antiquo, & etiam conceſſit illi 10 l. pro officio illo, and the queſtion, was whether if the office be gone, the Annuity was expired, and it was affirmed by all the Juſtices that it was gone, and is determinable by the office determined. And Choke ſaid that he was of Councell with one I. who had an Annuity granted unto him by the King in theſe words, to I. Clerico60 coronae pro termino vitae, and after he was diſcharged of the office, and the opinion of all the Juſtices was that the Annuity was determined, for it ſhall be intended that the Annuity was granted by reaſon of the office, and ſo it appeareth in theſe caſes, that a fee, though newly granted is annexed to the office, and determinable with the office, and ſhall continue with the office as an incident inſeperable, for the principall failing the acceſſory alſo faileth.
Agentes, & conſentientes pari paena plectuntur, Coke l. 5. f. 80. a. b. As Tenant for life, the Remainder to his Son and Heire apparent in taile by Covin and agreement between him, A. and B. maketh a Leaſe for years to A. who maketh a Feoffment in fee to B. to whom the Father Tenant for life releaſeth with warranty, and after the Father dyeth, and the Warranty deſcended on the Son, and it was reſolved that the Warranty did not bar the Son, for the Feoffment of the Leſſee for years was a diſſeiſin, and that though the diſſeiſin was to the Father himſelfe, who made the releaſe, yet in that the Father agreed, and conſented to the diſſeiſin, it ſhall not hinder, but that the Warranty ſhall begin by diſſeiſin, vide ibidem, Fitzherberts Caſe. A. maimeth B. by the conſent of C. An appeale lyeth againſt A. and C. and Damages equally againſt both, 22. Aſſ. Pl. 82.
AND firſt from the principle, and then from the cauſe, for every cauſe is a principle, but eevery principle is not a cauſe, as punctum is the beginning of a line, but not the cauſe of the line. As Aquinas in his Sam. part 1. q. 33. a. 1. Omnis cauſa eſt principium, ſed omne principium non eſt cauſa,61 ut pater in divinis eſt principium filij, ſed non cauſa, & omnis cauſa importat diverſitaem ſubſtantiae & dependentiam unius ab altero, ſed nomine principij ordinem ſolum ſignificamus, and every cauſe imports a diverſity of ſubſtance, and a dependency of one thing from the other, but by the name of the principle, we ſignifie onely the order, as the Father in the Deity is the principle, or beginning of the Son, but not the cauſe.
Cujus que rei potiſſima pars principium eſt, Coke l. 10. f. 49. a. The beginning is the principall part upon which all others are founded, & quando diverſi deſiderantur actus ad aliquem ſtatum perficiendum, plus reſpicit lex actum originalem, when to the perfection of an eſtate or intereſt, diverſe Acts or things are required, the Law hath more regard to the originall Act, vide ibidem, Lamperts Caſe.
When a man ſeiſed of Lands in Fee-ſimple or Fee-taile generall, taketh a Wife, to the perfection of her Dower two things are requiſite, lawfull matrimony, and the death of her husband, and if baron and feme levy a fine, the feme is barred of her Dower, becauſe that the intermarriage, and ſeiſin are the fundamentall cauſes of Dower, and the death of the baron onely the execution of it, for the beginning is the principal part upon which all others are founded, and therfore in ſuch caſe if baron and feme grant a rent by fine out of the Land, or make a leaſe for years rendring rent to the baron and his heires, and then the feme recovereth Dower, ſhee ſhall hold that charge with the rent, and with the terme, and the opinion of Ployden in Stowells caſe, 373. is not holden for Law, as appeareth by Dyer f: 72. and in Damports caſe, Dyer 224. it was adjudged to the contrary, 2. H. 4. and now common experience without contradiction is againſt it, and ſo Littleton in his Chapters of conditions f. 83. holdeth, that if the Feoffee upon condition taketh a wife, the Feoffee may enter for the condition broken, and the reaſon is for that the Law62 hath a principall regard to the originall, and fundamentall cauſe, and yet it may be ſaid that the title of dower is not conſummate untill the death of the husband, and peradventure the feme might die before the Baron, vide ibidem plura.
So things are conſtrued according to that which was the beginning thereof, as one maketh me ſweare to bring him mony to ſuch a place or elſe he will kill me, and I bring it him accordingly, this is fellony in him, 44. E. 3. 14. b. So if he make me ſweare to ſurrender my eſtate unto him, and I doe ſo afterwards, this is a diſſeiſin to mee, 14. Aſſ. Pl. 20.
One impriſoned till he bee content to make an obligation at onother place, and afterward he doth ſo being at large, yet he ſhall avoid it by dureſſe of impriſonment, 21. E. 4. 68. b.
Outlawry in treſpaſſe is no forfeiture of Land, as outlawry of felony is, for though the not appearing is the cauſe of the outlawry in both, yet the force of the outlawry ſhall be eſteemed according to the hainouſneſſe of the offence which is the principall cauſe and foundation of the proceſſe, 3. E. 3. 84.
A man and feme ſole have a villaine, and afterwards enter-marry, and the villaine purchaſeth Land, they ſhall not have lands by intierties, but by moieties joyntly, or in common, as they had the villaine in the beginning. Coke l. 5. f. 47. a. In Littletons caſe, upon the generall pardon of 35. Eliz. Whether upon a bill exhibited in the Star-chamber, before the Parliament, and proceſſe awarded returnable after the Parliament, the ſuit ſhall be ſaid to be hanging by bill, before the returne or ſerving of the proceſſe, and it was reſolved that it was, becauſe the bill is origo & caput ſectae, the bill is the beginning and head of the ſuit.
Cujuſque rei potiſſima pars principium eſt, & origo rei inſpici debet, Coke com. f. 298. b. whereof he ſaith you ſhall make great uſe in the reading of our bookes,63 A diſſeiſor hath iſſue, and entreth into religion, by force of which the tenements deſcend to the iſſue, in this caſe the diſſeiſee may enter upon the iſſue, becauſe the diſcent of the iſſue was by the Act of the father and not by the act of God, and the Law reſpecteth the originall Act, which is his entry into religion, whereas a deſcent doth not take away entry unleſſe it commeth by death, Littleton ibidem. An eſcrowe is delivered by a feme ſole; if ſhe marry or die, yet by relation to the beginning it ſhall be good, 14. 4. H. 2.
Leſſee for yeares is bound to I. S. to make him the beſt eſtate he can, and afterwards the reverſion falleth to him, the Leſſee ſhall be diſcharged of the Bond, if he grantteh the eſtate he had at the bond making, 12. H 8. 5.
A ſtranger abateth after the death of the father, the ſon dieth, his wife ſhall not have dower, for this abatement ſhall relate to the death of the father, 21. E. 4. 60.
An attainder by Act of Parliament hath relation to the firſt day of the Seſſions, 35. H. 8. b.
Preſentment, tempore belli, is not good to gaine poſſeſſion from the right patron, though the induction was tempore pacis, Coke l. 2. Binghams caſe, and l. 11. f. 99. b. And ſuch an uſurpation ſhall be conſtrued to be in time of War.
A blow given by one at the time of non ſanae memoriae, though the party die, when he is fanae memoriae, it is not capitall, Ployd. D. Hales caſe.
So if a man of non ſanae memoriae giveth himſelfe a mortall wound, and becommeth ſanae memoriae, and dieth, he ſhall not be felo de ſe, Coke l. 1. Shellies caſe, f. 99. b.
A man buyeth certaine beaſts in Market, which were ſtolen, and ſelleth them out of the market, and the Vendee giveth him a Crowne in earneſt, and afterwards they are brought into the Market, and agreeth to his bargaine and payeth all his mony, and alſo payeth toll for the beaſts, the property64 is not changed, for the bargaine ſhall have relation to the firſt communication, Dier. f. 99. b.
Tenant for life upon condition that if the Leſſor die without iſſue the Leſſee ſhall have ſee, the Leſſee entereth into religion, and the Leſſor dieth without iſſue, the Leſſee is dereyned, he ſhall never have fee becauſe at the time of the performance of the condition the fee could not veſt in him, Ployd. f 489. a.
In caſe of attainder by verdict for felony, it ſhall have relation to the time of the fact done, 30. H. 6. 5. Lands given in franke-marriage, reſerving a rent, the reſervation is void untill the fift degree is paſſed. 26. Aſſ. Pl. 66.
One hath a Rent charge going out of his wifes Land, the grantee leaſeth to the husband and his heires, the husband ſhall not have it, but it ſhall inure to him by way of extinguiſhment onely as ſeiſed in right of his wife. 14. H. 8. 6.
The wife endowed by the heire is ſaid to be immediately in by the husband, and if the husband were a diſſeiſor and the heire in by diſſent, yet the diſſeiſee may enter upon the wife, Littleton.
The executor refuſeth; the Adminiſtrator may have an action of treſpaſſe for the goods taken out of the poſſeſſion of the Executor, ſuppoſing they were taken out of his poſſeſſion, 38. H. 6. 7.
A Recovery without an originall is void, and judgement given in Chancery without originall is void, and an outlawry without an originall is voide, Kel. f. 19. b.
A remainder is limited to the King, and before the inrolement of the deed, the King granteth it over, and then the deed is inrolled, this will not make the grant good, Coke l. 3. f. 29.
An executor aſſigneth auditors to one who was accountant to the teſtator, and his auditors find him in arrearages, the Action of debt ſhall be brought in the Detinet onely, and hath reſpect to the beginning, 11. H. 6.
65If 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, and66 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 the67 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 reteyne68 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. D•uries caſe.
Coke c•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 publi•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 ha•h in all the lands in Dale, and delivereth69 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.
70Coke com. f. 14. a. Quod prius eſt, dignius eſt, & qui p•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•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 alien•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•uare impedit, he ſhall not begin71 with his owne turne firſt, but with the other two turnes.
Ʋnumquodque 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 incurreth, for which day the husband maketh an acquittance ſuppoſing the receit of the rent for the ſaid yeare laſt paſt, and notwithſtanding that acquittance, his ſervant diſtraineth for the rent of half a yeare of the firſt year being behinde, but though the laſt arrearages before the laſt terme were due to the feme dum ſola fuit, yet Harper and Dyer were of opinion that all the arrearages were diſcharged by the acquittance of the laſt terme, becauſe it is an antient principle, That all the arrearages are diſcharged by the acquittance of the laſt terme, and we ought not to deny principles.
Coke l. 10. f. 40. a. No man ought to diſpute againſt recoveries, the legall pillars of common aſſurances, becauſe we are not to diſpute againſt principles, and which St. Germins Doctor and Student, c. 26. approveth to binde both in Law and conſcience, and by the Statute of 23. Eliz. C. 4. That for the avoyding of the dangers of aſſurances of Lands, and the advancement of common recoveries, it is provided that any common recovery ſhall not be avoided for any want of forme in words, and not in matter of ſubſtance. And Sir James Dyer then chiefe Juſtice did with great gravity, and ſome bitterneſſe reprove an utter Barriſter, who raſhly inveyed72 againſt common recoveries, not knowing the reaſon and foundation of them, and ſaid that he was not worthy to be of the profeſſion of the Law, who durſt ſpeake againſt common recoveries, which were the ſinews of aſſurances, and inheritances, and founded upon great reaſon and authority, Mary Portingtons Caſe, vide ibidem•lura.
Coke Com. f. 343. a. Principium eſt quaſi primum caput, a principle is as it were the firſt head, from which many caſes have their beginning, which is ſo ſtrong as it ſuffereth no contradiction, and therefore is it ſaid in our Books, that ancient principles of the Law ought not to be diſputed, 11. H. 4. 9. 2. As that of every Land there is a fee-ſimple, and that every Land in fee-ſimple may be charged in fee by one way or other, Littleton ibidem.
Ceſſante ſtatu primitivo ceſſat derivativus, Coke l. 8. f. 34. a. The primitive ſtate ceaſing, the derivative doth ceaſe. As if Tenant in taile maketh a leaſe for lives, according to the Statute of 32. H. 8. c. 28. and then dyeth without iſſue, the leaſe being derived out of the Eſtate taile ſhall not continue longer than the Eſtate taile, againſt the opinion in 33. H. 8. 48. Dyer, which was granted by the whole Court.
Derivativa poteſtas, non poteſt eſse major primitiva. Noy. max. f 4. A derivative power cannot be greater than it f•om which it is derived. As the Attorny of one that is diſſeiſed cannot make claime of the Land, it the diſſeiſee durſt have gone to the Land, Littleton. The Bayliff of a diſſeiſor ſhall not ſay that the Plaintiff never had any thing in the Land, for the Maſter himſelfe ſhall not have that Plea, becauſe he is not Tenant of the Free-hold, 28. Aſſ. Pl. 4.
The Servant ſhall be eſtopped to ſay the Free-hold is his Maſters, by recovery againſt his Maſter, though the ſervant himſelfe be a ſtranger to it, for he ſhall not be in better condition t•an he whoſe right he claimeth, 2. E. 4. 16.
73He that gaineth a thing on high, ſhall neither have gaine nor loſſe thereby, Noy. Max. f. 11. As if one Joyn-tenant maketh a leaſe of his Joyntee, and dyeth, the heire which ſurviveth ſhall have the reverſion of his Joynture, but not the rent, becauſe he cometh in by the firſt Feoffor, and not under his companion, Dyer 187.
So when the Husband is Leſſee for years in the right of his wife reſerving a rent, if he dyeth the wife ſhall have the reſidue of the terme, but not of the rent, ibidem.
An executor recovereth, and dieth inteſtate: Adminiſtration of the goods of the Teſtator is committed to I. S. I. S. ſhall not ſue execution upon this recovery.
Dower cannot be aſſigned reſerving a rent, or with a remainder over, for ſhee is in from the husband, and not from him who aſſigneth Dower Finch, f. 13.
Quod dignius eſt, prius eſt minus digno. The Law preferreth every thing according to its worthineſſe, Ployd. f. 169. a. and therefore is every thing placed in Writs by the rule of the Regiſter according to its dignity, as the Meſſuage is placed before Lands, the Land before Meadow, and the Meadow before Paſture, and the like, and this dignity is taken from neceſſity, for to have an houſe to inhabite, and to defend his body from tempeſt and violence of weather, is more neceſſary than to have Land to plow it for bread, and alſo to have Land for bread is more neceſſary, than to have Meadow for Hay to feed Cattell, and likewiſe to have Meadow for Hay, which will ſerve all the yeare, is more neceſſary than Paſture, &c. ibidem. And ſo in the Regiſter the entire thing which is more worthy ſhall be demanded before the moyety, part, or parts: As in a Replevin, if it be of two beaſts, the one quick & the other dead, the living thing ſhall firſt be demanded, Regiſter.
74Quod prius eſt, verius eſt, & quod prius jure eſt, potius eſt tempore, Coke Com. f. 347. b. As in a remitter the Law preferreth the firſt and antient right before the latter, and a ſure right though it be little before a great eſtate by wrong, which jumpeth with the rule of the Civill Law; Quoties duplici jure defertur alicui ſucceſſio, repudiato novo jure quod ante defertur, ſupereſt vetus, Paulus 17. queſt. As if Tenant in taile diſcontinueth the taile, and after diſſeiſeth the diſcontinuee, and ſo dyeth ſeiſed; This is a remitter to the tenant in taile, becauſe the Law ſhall put and adjudge him to be in by force of the tayle, which is his antient title, for if he ſhould be in by force of the deſcent, then the diſcontinuee may have a writ of Entry ſur diſſeiſſin in the per againſt him, and recover the tenement, and his damages, but being in by force of the taile, the title of the diſcontinuee is quite nullified.
Qualis cauſa talis effectus, Ployd. f. 292. a. Things are conſtrued according to that which is the cauſe thereof, as if an Executor aſſigne Auditors to one, who was accountant to the Teſtator, and the Auditors finde him in arrearages, the Action of debt, which the Executors ſhall have, ſhall be in the detinet onely, for the debt ſhall be in them as Executors and have reſpect to the foundation and cauſe, 11. H. 6. f. 16. by Paſton and Newton. So if one have a villaine for years as Executor, if the villaine purchaſe Land, and the Executors enter, the Land ſhall be to the uſe of the Teſtator, and it ſhall be aſſets in his hands, becauſe the villain, who was the cauſe of it, was to that uſe, Ibidem, Paſ. 32. H. 8. E. villenage 146.
Ployd. f. 524. & 525. b. a. If Tenant for years of Land granteth a rent-charge to another for the life of the grantee, the grantee ſhall not have an eſtate of Frank-tenement in the rent, in that he cannot have an eſtate of Frank-tenement derived out of the Chattell reall, but he ſhall have the rent during all the years, though the Leſſee had forty75 years in the Land, for terme of life is greater then years, and therefore the Grantee ſhall have all the rent for all the years, if he ſhall live ſo long.
And f. 525. b. An Executor cannot deviſe a terme to another, which he hath as Executor, for ſo ſoone as the Executor is dead, the terme is to the uſe of the firſt Teſtator, and his Executors have it as Executors to the firſt Teſtator, and to his uſe, and not as Executors of the laſt Teſtator, nor to his uſe, for the Executors have them by relation as immediate Executors to the firſt Teſtator.
A. Covenanteth with B. and his Executors, to make a leaſe of white acre before Michaelwas, and the Covenantee dyeth before, and A. maketh a leaſe to his Executor, the leaſe ſhall be to the uſe of the Teſtator, and aſſets in the Executor, for the Covenant, which was the cauſe of the Leaſe, came to the Executor in right of the Teſtator, and to the ſame uſe ſhall the leaſe be, Ployd. f. 292. a. Chap-mans caſe.
Ceſſante cauſa ceſſat effectus, Ployd. 268. Sir John Radcliffs caſe, the cauſe ceaſing the effect alſo ceaſeth. An office was found that after the deceaſe of Robert Earle of Suſsex, and Mary the Counteſſe his mother, certaine Lands did deſcend to Sir John Radcliff Knight as Son and Heire male of the body of the ſaid Robert engendred, and the body of the ſaid Mary, and Sir John Radcliff Knight was then of the age of eighteen years before the finding of the office, and the Lands were holden of the King, and Queene by the tenth part of a fee of Knights ſervice in Capite: And when Sir John Radcliff became of full age, he prayed his livery, but the Court of wards required of him for the Queene, the valew of his marriage; but it was alleaged that becauſe he was made Knight before the title of the Wardſhip accrewed, and the Wardſhip was due to the Lord in reſpect of his imbecility to doe the ſervice of a Knight, and that the making him a Knight, did admit him able to doe the ſervice of a Knight, his body ought76 not to be in ward for defect of ſuch ability, for the cauſe ceaſing, the effect alſo ceaſeth, and that if his perſon was not in Wardſhip, no marriage, nor value for it ſhall be due to the guardian, and ſo was it adjudged by the Court contrary to Magna Charta c. 4. which was ſaid to be made for the advantage of the Lords, vide ibidem plura.
Coke Com. 312. a. Ceſſante cauſa, vel ratione legis, ceſſat lex. The cauſe and reaſon of the Law ceaſing the Law alſo ceaſeth; as at the common Law no aid was grantable of a ſtranger to an avowry becauſe the avowry was made of a certaine perſon, and now the avowry being made by the Statute of 21. H. 8. upon no perſon, therefore the reaſon of the Law being changed, the Law it ſelf is alſo changed, and conſequently in an avowry according to that act, aid ſhall be granted to any man, vide ibidem plura.
Coke Com. f. 76. a. Ceſsante cauſa ceſsat cauſatum. As if the Lord after he hath the Wardſhip of the body, and the Lord doth releaſe to the infant his right in the ſigniory, or the ſigniory deſcendeth to the infant, he ſhal be out of ward both for the body and the Land, for he was in ward in reſpect he was not able to doe thoſe ſervices which he ought to doe to his Lord, which now are extinct, for the cauſe ceaſing the thing cauſed ceaſeth, and there muſt be a tenure continuing or no Wardſhip.
So if the Conuſee in a Statute merchant be in execution, and his Land alſo, and the Conuſee releaſe to him all debts, this ſhall diſcharge the executi•n, for the debt was the cauſe of the execution, and of the continuance of it untill the debt be ſatisfied, therefore the diſcharge of the debt, which was the cauſe, diſcharged the execution which was the effect, Coke Com. f. 76. a.
So if the heire female within the age of fourteen years be in ward and after the age of fourteen years expired, the Lord by the Statute of W. 1. c. 22. hath two years more to tender her a convenable marriage, but if the Lord marry her within the two years77 her husband and ſhee ſhall prefently enter into the Lands, for the cauſe ceaſing the effect alſo ceaſeth, Coke ibidem, 7 5. b.
The King granteth an office to one at will, and ten pound fee during life pro officio illo, now if the King put him from his office, the fee ſhall ceaſe, 5. E. 4. 8. b.
The executor, or husband after the death of the wife guardian in ſocage ſhal not retain the Wardſhip, for the guardian hath it not to his owne uſe, but to the benefit of the heire, and the executor or husband hath not that affection which the teſtator, or wife had, which was the cauſe that the Law giveth them the Wardſhip, 7. Eliz. 293. b.
If a ſtroke be given the firſt day of May, and the King pardon him the ſecond day of May for all felonies, and miſdemeanors, the party ſmitten dyeth the third day of May, ſo as this is no felony till after the pardon, yet the felony is pardoned, for the miſdemeanor is pardoned, and therefore all things purſuing are alſo pardoned, 13. E. 401.
If two coparceners make a leaſe reſerving a rent, they ſhall have this rent in common, as they have the reverſion, but if afterwards they grant the reverſion, excepting the rent, then they ſhall be Joyntenants of the rent, Finch mono. f. 9. It is no principall challenge to a Juror, that he hath married the parties mother, if ſhee be dead without iſſue, for the cauſe of favor is removed, 14. H. 7. 2.
The King diſparking the Parke, the office of the keeper is determined, and all ſuch offices as are preſumed in Law to be for the commoditie of the King as well as the Patentee, and if one granteth a Stewardſhip of a mannor, and diſmembreth that mannor, the office is determined; if a corporation granteth the office of a towne-clark, and ſurrendreth their patent to be renewed, all their offices are determined, Huttons Reports.
Upon a divorce, the woman ſhal have the goods given in marriage not being ſpent, for the goods were78 given in advancement of the woman, and therefore it is reaſonable that ſhee ſhould have them, in that the cauſe and conſideration of that gift is now defeated; for the cauſe ceaſing the effect alſo ceaſeth, Dyer f. 13. p. 61.
Coke l. 5. f. 59. b. Vaughans caſe, The originall cauſe of the amercement being pardoned the 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. Buchu•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 ſix79 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.
80In 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 unumquodquediſsalvi eo ligamine quo ligatum eſt, Cok. l. 2. f. 53. a.
There is nothing more agreeing to naturall equity81 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 high82 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.
Ʋnum 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.
83The 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 obſtan•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 ſuprema84 ſeipſum diſſolvere poteſt, becauſe the higheſt power may diſſolve it ſelfe, Bacon.
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.
85A 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.
MƲtata 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 turned86 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.
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.
87Finis 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, and88 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 ſhewing any licenſe of alienation, to diſcharge himſelfe for the purchaſe of thoſe Lands.
Exitus acta probat, & acta exteriora indicant in teriora animi ſecreta, Coke l. 8. f. 146. b. when entry, authority, or licenſe is given any one by the Law, and he doth amiſſe, he ſhall be a treſpaſſor from the beginning, as the Law giveth authority to any one to enter into a common Hoſtlary or Taverne, to the Lord to diſtraine, to the owner of the ſoile to diſtraine for Damage-feaſant, to him in the reverſion89 to view whether waſt be made, to the commoner to enter into Land to ſee his Cattell; but if he which entereth into a Taverne doth treſpaſſe, as if he import any thing, or if the Lord who doth diſtraine for rent, or the owner for Damage-feaſant work or kill the diſtreſſe, or he who entereth to ſee waſt doth breake the houſe, or remaine in it one whole night, or if the Commoner cut downe a tree, in theſe caſes the Law ſhall adjudge him to enter to that intent and purpoſe, and becauſe the act which demonſtrated it is a Treſpaſſe he ſhall be accounted a Treſpaſſor from the beginning, ſo if a purveyor take my Cattell by force of commiſſion for the hoſtle of the King, it is lawfull; but if he ſell them in Market the firſt taking is tortious, 18. H. 6. 19. b.
Coke l. 9 f. 59. Lambes caſe. Any one ſhall be convict of a publication of a Libell, if he knowing it to be a Libell, write but a copy of it, unleſſe afterwards he can prove that he delivered it to a Magiſtrate to examine it.
Coke Com. f. 100. a. The meſne is to acquit the Tenant of any manner of ſervices, that any Lord paramount will have or demand of the Tenant, and if the Tenant be diſtrained without default of the meſne, yet if the meſne doth not afterwards put his own beaſts into the pound inſtead of the beaſts of the Tenant, the diſtreſs ſhall be ſaid to be in his default, and the Tenant ſhall recover his damages, and coſts, vide ibidem plura.
Deſtinata tantum pro factis non habentur, Dod. E. Lawyer f. 143. Things deſtinated to an end, not being applyed thereunto, alter their nature and become of another conſideration, as if a man cut down my Timber Tree, and ſquare it of purpoſe to make a Beam for an houſe, I who am the true owner may ſeiſe the ſame, but if it be laid in the building it may not be ſeiſed by the owner, although the building be not perfected, for now it becometh parcell of the houſe or building, but if a man prepare all materialls for building upon his Land, and is ready to build90 therewith, but dyeth before it be erected, thoſe materialls ſhall go unto the Executor, or Adminiſtrtaor, and not unto the Heire, who ſhould have had them had they been layen in the buildings, and it may not be ſeiſed by the owner although the building be not perfected, for now it becometh parcel of the houſe or building; but if a man prepare all materials for building upon his Land, and is ready to build therewith, but dieth before it is erected, thoſe materials ſhall go unto the Executor or Adminiſtrator, and not unto the Heire, who ſhould have had them had they been layen in the building, becauſe they were deſtinata tantum quae profactis non habentur, intended onely, which are not taken for acts.
Qui adimit medium dirimit finem, Coke Com. f. 161. a. Sometimes the Law reſpects the beginning, and ſometimes the end, and ſometimes the means to the attaining it. As to turne a ſtreame is running to a Mill, is a diſſeiſin to the Mill it ſelfe, and to diſturbe one from entring and manuring his Land, is a diſſeiſin of the Land it ſelfe, ſo reſcous and replevin is a diſſeiſin to the Lord, becauſe by them the Lord is diſturbed from comming to his Rent, and ſo alſo is encloſure, becauſe the Lord cannot breake downe Gates, or breake downe the encloſures to take a diſtreſſe, and all theſe are diſſeiſins after an actuall ſeiſin had, and when the rent is behinde; otherwiſe not any of them.
Finis ſinem litibus imponit, Ployd. f. 357 a. Many times in our Law, the name and denomination of a thing is drawn from the finall cauſe, as a Fine uſed for the aſſurance of Land, dicitur finis quia finem litibus imponit, becauſe it putteth a period and end to ſuits, Dod. E. Lawyer. f. 143. and therefore as Ployd. f. 357. a. Fines have been of very long antiquity, and as Long as any Court of Record hath been, and were at the common Law the more ſtronger aſſurance, becauſe they carry in themſelves the end of the Law, which is repoſe, for the Law hath no other end but repoſe, for it was ordained to ceaſe contention,91 and to make peace, as the Statute of 17. E. 1. ſheweth that therefore they were called Fines, quia finem litibus debent imponere & imponunt, and therefore in the commencement of a Fine, there is concord and peace, haec eſt finalis concordia, and the chiefe cauſe is by which it maketh peace, becauſe it bindeth all ſtrangers unleſſe it be thoſe which have defect, if they enter not their claime within a yeare and a day, and Brown ſaid, that a Fine for its haughtineſſe, and for the peace and repoſe that it bringeth, it may be termed finis Legis, fructus Legis, exitus Legis, & effectus Legis, the end of the Law, the fruit of the Law, and the effect of the Law; and after the Plea of non-claime of Fines was made no bar, by the Statute of 34. E. 3. c. 16. becauſe the people in thoſe troubleſome times of Warrs, could not attend to know the Fines, and make their claimes, Fines did loſe their force, and were in effect, but Feoffments of Record, which was the occaſion of great contention among the Subjects of the Realme; whereupon the Statute of 4. H. 7. was enacted to reforme them, as by the preamble appeareth, by which five years after Proclamations made upon the Fine, are given to him that right hath to make his claime or purſue his action, whereas the common Law gave him but a yeare and a day, and alſo if a Fine be levyed without Proclamations, or without ſo many as the Statute requireth, then the Statute of non-claime doth extend to ſuch a Fine, Coke Com. 262. a. by which Statute the antient ſtrength of Fines is renewed, and made to be as they were heretofore; the finall end and concluſion of all ſtrifes and debates, as the Statute phraſeth it.
EVentus eſt, qui ex cauſa ſequitur, & dicitur eventus quia ex cauſa evenit, the event of a thing is that which followeth the cauſe, and it is92 called an event becauſe it cometh from the cauſe.
Coke l. 9. f. 81. b. Agnes Gores caſe. Who did ſecretly put poyſon into an electuary, which one Martine the Apothecary had made, with an intent to kill her hushand, part of which her husband and her Father having eaten were greivouſly ſick; whereof her Father complaining to the ſaid Martin, Martin ſtirring the electuary did eate part of it the one and twentieth of May, and dyed the 22th. of May, and it was reſolved that Agnes was guilty of the Murther of the ſaid Martin, for the Law conjoyneth the murtherous intention of Agnes in putting poyſon into the electuary to kill her husband, with the event that followed upon it, to wit the death of the ſaid Martin, for the putting of poyſon in the electuary was the cauſe of the poyſoning, and death of the ſaid Martin was the event, for that is the event which followeth the cauſe, and are called events becauſe they come from the cauſe, and the ſtirring of the electuary by Martin without putting in the poyſon by Agnes could not have been the cauſe of his death, ibidem.
Fruſtra expectatur eventus, cujus effectus nullus ſequitur, it is in vaine to expect the event, where no effect followeth, Coke l. 5 f. 15. b. Cawdrys caſe. As if an excommunication under the Popes bull is not of force to diſable any man in England, and that if it, being the extreame and finall end of any ſuite in the Court of Rome, be not to be allowed in England, it conſequently followeth, that by the antient common Law of England, no ſuite for any cauſe, though it be ſpirituall ariſing within this Realme, ought to be determined in the Court of Rome, for in vaine an event is to be expected of which no effect followeth, and that the Biſhops of England are the immediate Officers, and Miniſters to the Kings Courts, ibidem.
Plus virium habent argumenta ex effectis, Fonſ. Log. Arguments from the effects are of greater force, and therefore doth the Law commonly conſter things according to the effects.
93As if a Deed be delivered by an infant, it cannot be delivered againe at his full age, for it took ſome effect before, and was but voydable, 1. H. 6. 4.
But a deed delivered by a Feme-covert, or a releaſe delivered to one, who had nothing in the Land may be delivered againe, to wit, when ſhee cometh to be ſole, or the party to have ſomewhat in the Land, for the firſt delivery was meerly void and of no effect at all.
TOtum praefertur unicuique parti, the whole is preferred before either part, Coke l. 3. f. 41. in Ratcliffs caſe. As the blood which is between every Heire and his Anceſter maketh him Heire, for without blood none can inherit, and therefore it is great reaſon, that he who hath the whole, and entire blood ſhall inherit before him who hath but part of the blood of his Anceſter, becauſe by the order of nature the whole is to be preferred before the part. And therefore ſaith Bracton, Propt•r jus ſanguinis duplicatum dicitur haeires tam ex parte matris quam ex parte patris propinquior ſoror, quum frater de alia uxore, that from the double right of blood, as well from the part of the father, as from the part of the Mother, the Siſter is ſaid to be the neerer heire, then the brother of the other wife, and Britton ſaith, that the right of blood in this caſe maketh the Female to exclude the male, ibidem.
And therefore by the common Law of England, if a common perſon have iſſue a Son, and a Daughter by one venter, and a Son by another venter, and dyeth ſeiſed of Lands in Fee-ſimple, and the eldeſt Son entereth into the Land, and dyeth without iſſue, the Siſter of the whole blood ſhall inherit to him, and not the brother of the halfe blood, Coke ibidem, 40. b.
94Ʋbi major pars ibi totum, where the major part is there is the whole, 21. E. 4. 27. & 14. H. 8. 27. The Deane and major part of the Chapter maketh the Croporation, and their act is the act of the Corporation, though the others doe not agree, which accordeth with the rule of the Canon Law, authoritas, & poteſtas capituli conſiſtit in majore pare ejus, & ſani•ri & ſic totum capitulum facere dicitur quod facit major, & ſanior pars, Panor••tanus. The authority and power of a Chapter conſiſteth in the greater, and ſounder part, and ſo the whole Chapter is ſaid to doe what the major and ſounder part doth.
But here this difference is to be taken, that in Colledges and Corporations the major part of the Members ought to give their voices in a diſtinct number, and not in a confuſed, and incertaine number, as in the election of the Knights of Parliament, or the Coronors, or Virderors in the County Court, the greater voice and acclamation is ſufficient to ſhew the aſſ•nt of the greater part of the Free-holders, who make the election, Ployd. 126. a.
So as the major part of the Chapter doth conſent in making this confirmation, and this conſent ought to be expreſſed by the fixing of the Seale, 14. H. 6. 17. So ought they to ſit in one place and at one time, for otherwiſe it may be called an aſſent, and not a conſent, where the leaſe ought to be confirmed by the aſſent and conſent of the Deane and Chapter; for as the body naturall cannot make any perfect act if it be diſmembred, no more can a body politique, but the perſons which are members of it ought to be capitulariter congregati, in a certaine place, otherwiſe if they be ſcattered, or diſperſed in ſeverall places, that which they doe ſhall not be ſaid to be the Act of the Corporation, but factum ſingulorum, as 15. E. 4. 2. a. where the major part of the Monkes had ſubſcribed their hands to a deed of the Abbot, but it was not expreſſed, that it was done with the aſſent and conſent of the Covent, it was ſaid to be done by thoſe particular perſons which had ſubſcribed, and95 not by the Corporation, and ſuch a deed ſhall not bind the houſe, yet the Deane and Chapter are not confined to their Chapter-houſe, but they may meet to and make their Acts elſewhere; and therefore it is holden, 21. E. 4. 26 That where a Deed did beare date in dom•capituli, averrement might be, that the deed was delivered at another place, yet the major part ought to be preſent in the ſame place, and therefore the election of Coroners ought to be in pleno comitatu, as appeareth by the Writ de coronatore eligendo.
So the conſent of the major part of the Chapter, ought to be at the ſame time, ſimul & ſemel, and not ſcatteringly and upon ſeverall daies, for it is not a conſent unleſſe it be ſimul, for conſenſus eſt voluntas multo•um ad ques res pertinet ſimul juncta, for conſent is the will of many joyned together, concerning thoſe things which appertaine unto them, Davis f. 48. vide ibidem plura.
Turp•s eſt pars quae cum ſuo toto non convenit. It is a foule and deformed part which agreeth not with the whole, Ployd. f. 161. a.
And therefore every part of a deed ought to be conferred with the other, and one entire ſenſe thereupon to be made, as if I releaſe all actions and ſtay there, all actions are gone, but if I ſay further, which I have as Executor to I. S. there the generality is reſtrained. So 17. E. 4. f. 22. The King granteth to Garter King of Heralds ten pounds for the terme of his life, if he had ſtayed there, he had had it abſolutely for terme of his life, but where he faith further, by reaſon of his Office, by it hee hath reſtrained the generality, vide ibidem plura, in Throgmortons caſe, ſo as if he be removed from his Office he ſhall loſe his annuity.
Parte quacumque ſublata integrante, ſive neceſſaria tollitur totum, the ſubſtantiall or neceſſary part of any thing being taken away, the whole is deſtroyed, Coke l. 3. f 41. in Ratcliffs caſe, As none can be procreated but of the father and the mother,96 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 conv•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.
MOmentum & inſtans eſt unum indiviſibile in tempore, quod non eſt tempus neque pars temporis, ad97 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 mo•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 taken98 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•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,99 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, A•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 diverſity100 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 the101 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 ought102 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 vi•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 i•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 Ven•ee is to pay his money, &c. the law doth limit a time, and aſſigne to the103 p•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.
104Qui 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 Damagefeaſant, 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 del•nquens magis punitur qu•m pa•am, he that105 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 in poſſeſſion, by the antient Law the entry of the diſſeiſor for his negligence had bee•taken away, which now is onely by deſcent, many a••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 was106 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, & haben•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•ive and diſpoſe, as if a man be ſeiſed of one acro••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 at107 the time of having of the Lands holden in Capite, vide ibidem plura, in Loveys caſe. For
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, and108 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.
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 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 alledge109 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 of110 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 they111 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 rie•102by 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 Ward within Lond. but God forbid but that the Jurors may find aſſets by deſcent in any other county within England, for the Law is, that the Plaintiff in ſuch caſe ſhall have execution of all the Lands the heire had, and peradventure he might have Lands in diverſe counties: and therefore though a place be named for neceſſity ſake, yet the Jurors may find all that which by law may be chargeable in ſuch a caſe, in whatſoever City and County it lyeth; and ſo was the principall caſe reſolved after in 10. Eliz. though it be not reported there, and with it agreeeth 10. H. 6. 13. And the conceit of Brook. 2. Mar. Attaint 104. that the jurors of one county are not compellable to find tranſitory things in another county, was altogether denyed by the whole Court, for they are bound under the paine of attaint to finde aſſets in any other county whatſoever, for it may be that the executors have goods of the Teſtators in divers ſeverall counties, and that in none of thoſe counties had by him there is aſſets, vide ibidem plura: And if the Excutors have any goods of the Teſtators in any part of the world, he ſhall be charged in reſpect of them, or if Merchants and others which have goods of great value beyond the Seas, be indebted in England, if thoſe goods ſhould not be liable to their debts, it would be a great defect in Law, Ib.
Coke com. f. 282. a. It is an ancient principle of the Law, that for tranſitory actions the Plaintiff may alledge the ſame in what place or county he will, and the Jurors upon not guilty pleaded are to be made to find for the Plaintiff, neither can the aſſault, battery, or finding of goods &c. alledged in another county be traverſed without ſpecial cauſe of juſtification, which extendeth to ſome ſpeciall place,113 as if a Conſtable of a towne in another County arreſteth the body of a man that breaketh the peace, there he may traverſe the County, but he muſt not reſt there, but all other places ſaving in the town where he is Conſtable, vide ibidem plura.
But in the caſe of felony the triall ſhall be by the common Law in the ſame place where the offence was, and ſhall not be ſuppoſed in any other place, for in criminall cauſes the rule holdeth, Ubi quis deliquit ibi punietur, Coke l. 6. f. 47. b. where one offendeth there he ſhall be puniſhed, yet this rule faileth in treaſon, to adhere to the enemy of the King without the Realme, which is declared to be treaſon by the common Law, by the ſtatute of 25. E. 3. de proditionibus, for leaſt there ſhould be a want of triall in matter of ſuch conſequence, the adherence without the Realme muſt be alledged in ſome place within England: and if upon the indictment they ſhall find any adherences out of the realme they ſhall finde the Delinquent guilty, 5. R. 2. triall 24 but commonly they did indite him in that county where his Lands did lie, which were to be forfeited, and ſo it is declared by the ſtatute of 35. H. 8. c. 2 vide Coke com. 261. f. b.
Saepe locus in delcto auget vel minuit culpam Reg. I. C. The place doth often augment or diminiſh the offence, as he who ſtriketh a man in Weſtmin. Hall, ſhall have his right hand cut off & his Lands & Chattels forfeited, ſo if he ſtrike a Juror; and beſides ſhall be committed to perpetuall Priſon. Finch N•mot. f. 25.
If men tilt or turney in the preſence of the King, and if two maſters of defence play their prizes on the ſtage, and kill one another, it is not felony, Heb. Rep. f. 89.
So t•e felonious taking of goods out of any Church or Chappel is ſacriledge, and a felony more hainous then ordinary, and therefore more ſeverely puniſhed. It was King Alureds Law, Qui in templo quid clepſcrit, valorem ſolvito, mulctampretio rei congruam pendito, & manum quacumque furatus eſt praecidito114 nec redimere manum poteſt niſi propria capitis aeſtimatione, whoſoever ſhall ſteale any thing in a Church, let him reſtore the value, let him pay a fine anſwerable to the worth of the thing, let that hand with which he did ſteale be cut off, neither could he redeem his hand but with the price of his life, which in thoſe antient times wherein offences were not ſo frequent, was a grievous puniſhment, wherin their was chiefly cenſured with ſatisfaction, but in the ſucceeding worſer times by the ſtatute of 23. H. 8. It was made capitall without the benefit of Clergy.
So to kill the Kings Chancellor, Treaſurer, Juſtices in Eyre, and Aſſiſe of Oyer and Terminer being in his place, and doing his Office is high treaſon Dalt. 226.
Si deſit obedientia non adjuvat locus, Coke l. 7. f. 24. b In Calvins caſe, If obedience be wanting the place furthereth not.
Samaria in Syria was the cheife City of the ten Tribes, but being conquered by the King of Syria, and the Jews taken Priſoners, and carried away into captivity, was after inhabited by the Paynims, yet becauſe the people of Samaria were not under actuall obedience by the judgement of the chiefe Juſtice of the whole world, they were adjudged alienigenae, Aliens, Luke c. 17. Where one of them who was cleanſed of his Leproſy by our Saviour, being a Samaritan, returned, and gave praiſe to God, and is by our Saviour called an alien, that is, a ſtranger borne, becauſe he had the place but wanted the obedience, and where obedience is wanting, the place helpeth not. And this agreeth with the divine ſaying, Si locus ſalvare potuiſset, Satan de coelo pro ſua inobedientia non cecidiſſet, Adam in Paradiſo non cecidiſſet, Lot in Monte non cecidiſſet, ſed potius in Sodom. If the place could ſave one, Satan for his diſobedience had not fallen from heaven, Adam had not fallen in Paradiſe, and Lot in the Mountain had not fallen, but rather in Sodom.
PArium eadem eſt ratio, things are to be conſtrued according to equality of reaſon, Coke l. 3. f. 12. b. As upon a recogniſance acknowledged by the Anceſtor, or in a judgement upon an action of debt given againſt him: if he dieth ſ•iſed of two Acres, whereof one is holden in Burrough engliſh, or having iſſue two daughters which make partition, in this caſe if one be onely charged the other ſhall have contribution, becauſe they are in aequali jure in equall right. So if a man be bound in a ſtatute or recogniſance, and after his death ſome of the land deſcendeth to the heir of the part of the father, and ſome to the heire of the part of the mother, in this caſe one onely ſhall not be charged, and if he be, he ſhall have contribution againſt the other.
So in dower if the tenant vouch the heire in three ſeverall wards, every one ſhall be equally charged, as it is agreed, 11. H 7. 22. Ibidem f. 13. a.
If two, four, or more men being ſeverally ſeiſed of land, joyne in a recognizance, all their lands muſt be equally extended, becauſe they are in an equall condition and caſe, 26 Aſſi. Pl. 37.
Now cuſtome hath created inheretances in copy-holds, and that the lands ſhall be deſcendable, the law doth direct the deſcent according to the Maxims and rules of the common law, as incident to every eſtate deſcendable, Coke l. 4. f. 22. So now uſes have the reputation of inheritances deſcendable, the common law ſhall direct the deſcent of thoſe; and that there ſhall be poſſeſſio fratris of an uſe as of other inheritances at the common law, 5. E. 4. 7. And of lands in Burrough Engliſh, the uſe ſhall deſcend to the puiſne, and now alſo theſe uſes being turned into eſtates ſhall be determined in all reſpects as eſtates in poſſeſſion, 23. H. 8. Finch. Nomot.
116But this difference is put between inheritances in copy hold lands and inheritances in uſes, in that ſuch c•ſtomary inheritaners ſhall not have by the Law any other collaterall quallities which concerne not the deſcent of inheritance, which uſes and other inheritances at the common law have, as tenancy by courteſie, or aſſe•s to charge the heire in an Action of debt upon an obligation made by his Anceſtor for him and his heirs, Coke l. 4. f. 22. a. or deſcent to take away entry; as if a copyholder in right of his wife ſurrender it to the uſe of another in ſee, and dieth, that ſhall not be any diſcontinuance to the feme, but that ſhe and her heires may enter, Ib. f. 23. Neither ſhall the feme of cuſtomary tenant be endowed, unleſs it be by ſpeciall cuſtome, Ib. f. 30. b. and generally copy-hold eſtates ſhall not have ſuch qualities which eſtates at the common Law have, without ſpeciall cuſtome, Ib. f. 23. a.
NƲllum ſimile currit quatuor pedibus, Coke. l. 7 f. 34 no like thing runs upon four feet, and Coke l. 4. f. 18. b.
Nullum ſimile eſt idem, nothing that is like is the ſame, Sir Gilbert Gerrards caſe, upon an action of ſlander, the Plaintiffe counteth, that he was ſeiſed of a Mannor &c. in fee, and that he was in communication to demiſe the ſaid land to R. E. and that the Defendant not ignorant thereof ſaid, I have a Leaſe of the ſaid Mannor for ninety yeares, and that by reaſon of the ſaid words the ſaid R. E. did not accept of the ſaid Leaſe, to the damage &c. The Defendant pleaded, that t•lis indentura qualis in the Count was alledged, came to the hands of the Defendant by finding: and it was reſolved that that manner of pleading was not a direct anſwer to the indenture mentioned in the Count, for talis indentura,117 is not eadem indentura, for no like is the ſame.
Eadem & ſimili ratione ſuadente, idem jus ſtatuendum eſt, Reg. I. C. Ʋbi eadem eſt ratio ib•eſt idemjus, Coke com. f. 191. a.
It is one of the Maximes of the common Law cited by Littleton, that in all caſes where there is the like reaſon there is the like law, for reaſon is the ſoule of the law, and ratio poteſt allegari deficiente lege, and reaſon may be alledged where the Law is wanting, and then as B•act•n De ſimilibus ad ſimilia eadem ratione p•o••dendum eſt. From the like unto the like by the ſame reaſon we are to proceed, and ſo argumentum a ſimili i•good in law, Et quod in uno ſimilium valet valebit in altero, what availeth in one of the likes ſhall availe in the other; as one ſhall recover in value againſt the heire upon the Anceſtors warranty, Lands which the heire tooke in exchange for Lands deſcended, 1•. H. 3. rec. va. 26. for the ſimilitude of the ſame reaſon.
A Mannor is given by Fine, A Sc••e facias lyeth of a tenancy that after eſcheated to the ſaid Mannor, 48. E. 3. 11.
If a Mannor deſcend to an heire within age, and after a tenancy eſcheateth, he ſhall have his age of it in a praecipe of the mannor, it ſhall be aſſets by deſcent, and he may vouch of this tenancy, by reaſon of a warranty made of the Mannor, for the ſame reaſon. 6. H. 4 1.
And for the ſame reaſon a Leaſe for a thouſand daies is a Leaſe for yeares, 14. H. 8. 13. And a Leaſe for years, and a releaſe amounteth to a feoffment Brook.
The Maxime of a Baſtard is eigne, that the mulier puiſne muſt make an entry upon him, or elſe he gaineth the right, yet a continuall claime made by the mulier puiſne deſtroyeth his right, for it is all one as if he had entred, 14. H. 4. 9.
If a man licenceth one to occupy his Land for a yeare, this is a Leaſe for a yeare, 5. H. 7. 1. And,118 this is alſo according to the rule of the civill law, ubi eſt eadem ratio & eadem equitas ibi debet eſſe eadem juris diſpoſitio, where there is the ſame reaſon and the ſame equity, there ought to be the ſame diſpoſition of right, Coke com. f. 10. a. As in Feoffments, and grants, the word heires maketh an inheritance, ſo doth it in exchanges, releaſes, and confirmations, which enure by way of enlargement of an eſtate, as alſo in warranties bargaine, and ſales by deed indented and enrolled, and the like, in which the word heires is alſo neceſſary, becauſe they ſtand upon the ſame reaſon, that feoffements and grants doe, for where there is the ſame reaſon, there is the ſame law.
Coke com. f. 55. 56. If Leſſee at will ſoweth the Land, and the Leſſor after it is ſown & before the corne is ripe put him out, yet the Leſſee ſhall have the corne, and ſhall have ingreſſe, egreſſe, and regreſſe to cut and carry away the Corne, and if the corne be ripe and ready to cut downe, and the Leſſor before the Leſſee reapeth it, enter and putteth out the Leſſee, without all queſtion the Leſſee ſhall have the corn, for by the ſame reaſon that he ſhall have it where he is put out before it is ripe, he ſhall have it where he is put out after it is ripe, for where there is the ſame reaſon there is the ſame law.
IN eo quod plus eſt, ſemper ineſt minus, Reg. I. C. Omne majus continet in ſe minus, Coke l. 4. f. 46. a. The greater alwaies containeth in it the leſſe, as whereas by the ſtatute of 3. H. 7. c. 1. It is provided, that if Murderers and acceſſaries or any of them be acquitted upon inditement, or the principall is attainted &c. the wife or heire to him ſlaine may have their appeale againſt the perſons ſo ac•uitted or againſt the principall ſo attainted, and119 that the benefit of his Clergy thereof before be not had: It was reſolved, that the word Attaint of murther in that act ſhall not be intended onely of a perſon who hath judgement of life, but alſo ſhall be extended to a perſon convict by confeſſion or verdict, for a perſon attainted is a perſon convict, and more and every greater containeth the leſſer.
Coke l. 5. f. 115. a. It was reſolved in Woods caſe, that if a man tendreth more then he ought to pay, it is good enough, for every greater containeth in it ſelf the leſſer, and the other ought to accept ſo much of it, as is due unto him, Quando plus fit quam fieri debet, v•detur etiam illud fieri quod faciendum eſt, & in m•j•ri ſumma continetur minor, when more is done then ought to be done, that ſeemes to be done which was to be done, and the leſſer ſum is contained in the greater.
Ployd. f 349. b. The diſſeiſor maketh a Leaſe for life, and the Diſſeiſee confirmeth the eſtate of the Diſſeiſor, the Diſſeiſee cannot enter upon the tenant for life, for his right was to all the eſtate of the Land, and if he be barred of the Fee ſimple he is barred from the eſtate for life, for every greater containeth in it ſelfe the leſſer.
An action of battery is brought, and the evidence proveth it a maime, and well, becauſe it is battery, and more, 31. Aſs. pl. 1.
Omne majus continet in ſe ſuum minus. 28. H. 8. b. By a pardon of Murder, Manſlaughter is pardoned, and and an attaint ſuppoſing a verdict to have paſſed between two Juſtices, whereas it paſſed before three good enough.
A recovery pleaded of three acres, where it was of ſix, is good enough, Finch. Nomot. f. 31.
Where the Cuſtome is, that a man ſhall not deviſe his Lands for any higher eſtate then for life, yet if the deviſe be in fee, and the Deviſee claimeth but for life, the deviſe is good.
Dyer 150. b. Ʋpton by his laſt will in writing deviſeth an entire mannor holden by Knights ſervice120 in fee, and it was adjudged a good will for two parts and not void for all.
A Qu•re impedit in the Regiſter is praeſentare ad Eccleſiam, by this he may count pro tertia parte, Coke l. 10. f. 136. b. in Richard Smiths caſe.
A Procedendo ſuppoſeth an Aſſize before Stouſe and Burton Juſtices, and it was alſo before Shard, and good, becauſe three containeth two, Ployd.
Where, by the Cuſtome of a mannor a man may demiſe for life, he alſo may demiſe to his Wife durante viduitate, becauſe the greater containeth the leſſer, Coke l. 4.
Non debet cui plus licet, quod minus eſt non licere, Regula I. C.
Cui licet quod majus, non debet quod minus eſt non licere, Coke l. 4. f 23. a. To whom it is lawfull to doe the greater thing, to him it is not unlawfull to doe the leſſer. As where the Cuſtome of the mannor is, that Copy-hold Lands may be granted to any one in Fee-ſimple, there the grant to one and his Heirs of his body is within the Cuſtome: for he that may lawfully doe the greater, it ought not to be unlawfull but that he may doe the leſſer.
Coke l. 9. f. 48. b. There is a great diverſity between an Aſſignee and a Deputy of an Office, the Aſſignee hath an intereſt in the Office, and maketh all things in his owne name, and for whom his Grantor ſhall not anſwer, unleſſe it be in ſome ſpeciall caſes; but a Deputy hath no intereſt in the Office but is but a ſhadow of an Officer, and doth all things in the name of the Officer, and for whom his Grantor ſhall anſwer, and when an Officer hath power to make Aſſignes, he may implicitely make a Deputy, for to whom that which is greater is lawfull, to him that which is leſſe is not unlawfull, and by conſequence, when an office is granted to him and his Heirs, by it he may make an aſſignee, and by conſequence a Deputy.
Sicut beatius ita majus eſt dare, quam accipere, Coke l. •. f. 57. b. There is a manifeſt diverſity between121 a receiver, and giver of ſeiſin, for he that hath a terme for years, may receive ſeiſin to the benefit of him which hath the Frank-tenement, and all our Bookes are, that the poſſeſſion of a Leſſee for years, or guardian is a ſufficient ſeiſin for him in the reverſion, but he that giveth ſeiſin is tenant of the Frank-tenement, and therefore greater then Tenant for years that receiveth, for it is a greater thing to give then to receive, and therefore Tenant for years by his payment cannot give ſeiſin to binde him, which hath the Franke-tenement, vide ibidem plura, in Bredimans caſe.
Omne magis dignum trahit ad ſe minus dignum, Coke Com. f. 44. a. b. The more worthier thing draw•th unto it the leſſe worthy, the Charter granted by H. 3. in the ninth yeare of his reigne was of force and validity, notwithſtanding his nonage, for that in judgement of Law, the King, as a King, cannot be ſaid to be a minor, for when the royall politick body of the King doth meete with the naturall capacity in one perſon, the whole body ſhall have the capacity of the royall politick, which is the greater, and the more worthy, and wherin there is no minority, for the more worthier thing draweth unto it the leſſe worthy, vid. Coke l. 2. f. 68. in Tooker's caſe, ibidem f. 285 a. Three Joynt-tenants are diſſeiſed, and they arraigne an aſſize, and one of them releaſeth to the diſſeiſor all actions perſonall, this ſhall bar him, but not the other, for having regard to him, the realty as the more worthy ſhall be preferred, and the greater worthy draweth to it the leſſe worthy, & ibidem 355. b. It was ſaid that upon a recovery had by default in an action of Waſt againſt Tenant in Dower, a quod ei de forceat did not lye, becauſe in an action of Waſt, Damages were the principall, as moſt antient, and that therefore cleerely no quod ei deforceat did lye, but it was anſwered, that the place waſted was the worthier being in the realty, then Damages that be in the perſonalty, though more122 antient, & omne magis dignum trahit ad ſe minus dignum, quanquam minus dignum ſit antiquius, & a digniori debet fieri denominatio, and every more worthy draweth unto it the leſſe worthy, though the leſſe worthy is more antient, and a denomination ought to be from the more worthy, vide ibidem plura.
Coke l. 6. f. 43 b When an action is in the realty, or mixt with the realty, accord with ſatisfaction is no Plea, for accord with ſatisfaction is a bar for the perſonalty, but not for the realty, and when the perſonall is mixed with the realty it is no bar for the perſonalty, for allwayes the greater draweth unto it the leſſe, vide ibidem plura. in Bl•kes caſe.
Charters are put into a box, this alters the nature of the box from being a Chattel, and ſhal go to the heire, and as 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,123 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 men124 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 ſecundū 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 which125 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 e•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 alleg•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 the obligation is good, and the Obligee may declare upon a Solvendum to himſelfe, 4. E. 4. 29. for contraria non poſſunt ſimul eſſe in eodem ſubjecto, Ariſt. 5. Phyſ. contraries cannot be together in the ſame ſubject.
Omnis privatio preſupponit habitum, every privation preſuppoſeth an habit, Coke com. f. 341. b. and l. •0. f. 86. b. To many purpoſes a Parſon hath in effect, but an eſtate for life, and to many a qualified fee, but the entire fee and right is not in him, and that is the reaſon that he cannot diſcontinue the Fee-ſimple that he hath not, nor ever had, for every privation preſuppoſeth an habit.
ARgumentum ab authoritate firmiſſimum eſt in lege, an argument from authority is the ſtrongeſt in Law Coke com. 254. a. our Book caſes are the beſt proofes what the Law is, and after the example of Littleton, Booke caſes are principally to be cited for deciding the caſes in queſtion, and not any privat•opinion, according to the rule, Nulla hominis authoritas tantum apud nos valere debet, ut meliora non ſequeremur ſi quis attulerit, no mans authority ought to prevaile ſo much with us, as that we may not follow the better whoſoever ſhall alledge it, as Littleton here rejecteth the opinion of Newton, and followeth the better authorities in Law, Coke com. f. 383. a. And whereas by the Civil Law, as Sir John Davis obſerveth, every Doctors opinion is vouched, and cited of them as good authority, it muſt needs breed diſtractions of opinions, and variations, according to which ſenſe the logicall axiom, is to be taken locus ab authoritate eſt infirmiſſimus, Boethius. An argument from authority is moſt weake, and prevaileth little or nothing in reſolving the queſtion, as the Poet preſſely Nil agit exemplum, litem quod lite reſolvat, to cleere a quaere, example ſtands for nothing, whereas our Law arguments are deduced from the ſtrength of caſes apt to the purpoſe, and preſidents of former times founded on the diſcourſe of reaſon, and conſideration of the wiſeſt and ſageſt Judges, and are no inartificiall arguments, as ipſe dixit, or teſte me ipſo, but are drawn out of the termes, and bowells of the iſſue by arguments, and concluſions of reaſon.
Nullum exemplum eſt idem omnibus, Coke com. 212. a. & 317. b. No example is the ſame to all, and therefore it is the beſt meanes in all aſſurances to take counſell of learned and well experienced men, and not onely to truſt without adviſe to preſidents127 for as the Aphoriſme holdeth in the ſtate of a mans body, nullum medicamentum eſt idem omnibus, no ſalve is the ſame to all: ſo doth the rule in the eſtates and aſſurances of Lands, no example or preſident is the ſame to all.
Periculoſum exiſtimo, quod virorum bonorum non comprobatur exemplo, Coke. com. f. 81. b. I deeme it dangerous that is not approved by the preſident of good men, and therefore it appeareth how ſafe it is to be guided by judiciall preſidents.
Littera ſcripta manet, Coke com. f. 115. a. A written word remaineth, and therefore a record or ſufficient matter in writing is a good memoriall, whence it is ſaid, when we will by any record or writing, commit the memory of any thing to poſterity, tradere memoriae, and for this reaſon it is that regularly a man cannot preſcribe a cuſtome againſt a ſtatute, becauſe it is matter of record, and is the higheſt proof and matter of record in Law, yet a man may preſcribe againſt an Act of Parliament, when by preſcription and cuſtome it is ſaved by an other Act of Parliament.
Nihil in lege intolerabilius eſt eandem rem diverſo jure teneri, Coke l. 4. f. 93, in Slades caſe. There is nothing more intollerable in law, then that the latter judgement ſhould contradict the former, and therefore 37. H. 6. f. 22. Aske ſaid, ſuch Charters have beene allowed in the time of our Predeceſſors, who were as ſage and learned as wee, and Markham, 5. E. 4. f. 41. It is good for us to doe as it hath been uſed in former times, and not to keepe one way one day for one party, and another day the contrary for another party. The former preſidednts are enough for us to follow.
So 11. E 3. Title Formedon, 22. It was holden that ancient formes and manner of preſidents are to be maintained and obſerved, and 34. Aſſ. Pl. 7. That which hath not been according to uſage ſhall not be permitted, and in 2. E. 3. 29. The ancient forme and order is to be obſerved, and 39. H. 6. 30. 128The opinion of Priſ•t and all the Court was, that they would not change their uſe, notwithſtanding that their opinion was to the contrary, and 4. E. 4. 44. All the Juſtices ſaid, we cannot change the courſe hath been before, for it ſhould be inconvenient, and it is ſaid 3. E. 4. 1. That the courſe of Courts maketh a law. And therefore all the Juſtices in ancient times, and from time to time, being as well in matters of forme as in deciding of doubts, and queſtions, and as well at the common law as in conſtruction of Acts of Parliament, have given great regard to the ancient preſidents and judgements of the preceding judges, as Ployd. f. 99. b. It was adviſed by the Court according to the book of 7. H. 4. That an acceſſary ſhall not be arraigned as an acceſſary to one principall untill the other principals may be attainted, becauſe it did ſeeme the better way to the Court to purſue the ſame order that the Sages before had uſed. And ſo here in Slades caſe in reſpect of the infinite preſidents which the Secondary of the Prothonotaries of the Kings Bench did ſhew to the Court, it was reſolved before all the Judges of England in the Exchequer chamber, that though an action of debt lyeth upon a contract, yet the Bargainer may have an Action of the caſe or an Action of debt at his election, Coke ibidem.
Mos retinendus fideliſſimae vetuſtatis & quae praeter conſuetudinem, & morem majorum fiunt neque placent neque recta videntur, & frequentia actus multum operatur. The ancient manner of the moſt faithfull antiquity is to be retained and what are contrary to the cuſtome and uſe of the Elders doe neither pleaſe nor ſeem right, and the frequency of acts worketh much, Coke l. 4 f. 74. and therefore it was there reſolved by the chief juſtices Popham, Anderſon, and by Pyriam chiefe Baron, and other juſtices, that the ancient and uſuall elections of Mayors, Bayliffs, &c. by a certaine ſelected company of the principals of the commonalty and Burgeſſes, commonly called the common councell &c. were good and129 well warranted by their Charters and by their lawes alſo.
Multa ignoramus quae nobis non laterent ſi veterum lectio nobis fuit f•miliaris, Coke l. 10. 73. We are ignorant of many things which would not be 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•lura.
Monumenta quae nos Recorda vocamus ſunt veritatis & vet•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 by130 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 r•ied by Jury, and upon a judgement a writ of error lyeth not, but a writ of falſe judgement, becau•e they are no Court of record, for that they can hold no plea of debt or treſpaſs, if the d•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, but131 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 pa•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, thou•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 hi•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 inconveniences132 ariſing ſince the former judgements or other waighty conſiderations, reſpecting the good of the Common-weale in generall, Sir John Davis in his Preface.
A Propoſition is an oration affirming or denying aliquid de aliquo ſomething of ſomething, and is called of the Philoſopher〈…〉〈 in non-Latin alphabet 〉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 b•eve, includeth a negative to wit and not otherwiſe, for it hath been taken ſince it, that if the firſt writ was a Sci•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.
133So 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.
DIviſio eſt oratio qua totum in partes diſtingui•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,134 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 i•ſias tanquam Dei veſtigia conſ•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 per•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•h•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 o•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 pauci•ro, 9. H. 7. 24. Coke l. 8. f. 167. a. Diviſion is a reſolution of the whole into parts and ought to conſiſt of135 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〈…〉〈 in non-Latin alphabet 〉, 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 r•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 diſſe•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 requi•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. Plo•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 part of my father but o•herwiſe the releaſe is good without any averrment, for the thing was certainly expreſſed by the firſt wo•ds, in which caſe other words were needleſſe and ſuperfluous, and in vaine were it to expreſſe that by more words which may be expreſſed by fewer, and 30. Aſſ. Pl. 8. Lands given to two, & uni eorum diutius viventi and to the longer liver of them, they make partition, and one136 of them dyeth, the Leſſor ſhall have againe the moyety of him that dyed, for uni eorum diutius viventi, are but idle words.
Omnis propoſitio eſt aut verae, aut falſa, every propoſition is either true, or falſe, truth as it is a congruity of an entity with the intellect, inſtrumentally appertaineth to Logick, becauſe it directeth the minde to apprehend the truth of things, and is oppoſite to falſity contradictorie, eſpecially in propoſitions, for all propoſitions are either true, or falſe, Quae ad idem, ſecundum idem ſimiliter & eodem tempore nunquam poſsun•ſimul eſſe verae, which to the ſame, according to the ſame, after the ſame manner, and in the ſame time, never can be both true.
Fucatus erro••uda veritate in multis eſt prohabilior, & ſepenumero multis rationibus vertiatem vincit, Ariſt. Coke l. 2. f. 72. Painted error in many things ſeemeth more probable then truth, and oftentimes with many reaſons overcometh the truth, therefore hath the Law a great re•pect to verity and requireth that it be acknowledged and confeſſed in all actions, under the penalty of a mercement, and accordingly if the tenant doth not render the Land to the demandant, as he was commanded by the Writ, but perſiſt•th in defence of it till judgement be given againſt him, by the Law he is to be amerced, Coke. l. 5. f. 49. Va g•ans caſe.
And therefore one of the chiefeſt things which the Law requireth in counts, is verity, and if it appeare to the Court, that falſity is uttered in lieu of verity, the party which ſheweth it, hath annoyed and confounded himſelfe, Ployd. f. 84. b. And therefore if a man bring an Action of debt for two payments at two dayes, where one of them is not come, by the ſhewing of the Plaintiff himſelf he hath by it abated his own writ, becauſe that he hath ſhown a falſity, T. 9. H. 7. 3. And ſo in our caſe he hath grounded his matter upon a Statute by him recited, where it appeareth judicially, that there was no ſuch Statute137 made at that time, and ſo he hath abated his count by his own ſhewing, ibidem, Partridges caſe, and ſ•. p. 20. H. 6. f. 30. A writ of Champerty was brought, which was not warranted by any Statute, and there Newton ſaid, that if the party cannot ſhew unto them any Statute, by which it was warranted, that they will award that the writ ſhall abate.
And therefore abundance and reciting more then needeth, ſhall many times hurt the party, as T. 20. H. 6. f. 42. A man brought a writ for forging of falſe deeds, and the writ was diverſa facta, & munimenta, and he counted but for one onely and by the aſſent of all the Juſtices, it was awarded that the writ ſhall abate, becauſe the writ was for diverſe Deeds, and he counted but for one, vide ibidem.
If the Writ vary from the Obligation, or other ſpecialty in name, or ſur-name or ſuch like, the Writ ſhall abate, 11. E. 4. 2. As in an action of debt for twenty pound, and he declareth but for ten pound, both ſhall abate, 8. E. 4. 2.
An Eſſoine or protection, varying from the originall Writ in the quantity of the tenancy, or the name of the party, ſhall be quaſhed, 4. Aſſ. pl. 1. 2. H. 6. 3.
A Chancellors ſervant bringing a Writ of priviledge varying from the originall Writ, as if the originall be a Writ of Treſpaſſe, and the priviledge in a Plea of debt, or the originall be in an action of debt of 44 l. and the Writ in a Plea of debt 42 l. it ſhall be diſallowed, 7. H. 6. 22.
Lex non requirit verificari, quod apparet curiae, Coke l. 9. f. 54. b. The Law doth not require that to be verified which appeareth to the Court, though the Law of England be more preciſe in the forme of pleading then any other forraine Law, as well in counts, as bars, wherein averrements and offers of proofes are commonly concluded, as in counts the courſe of declaration is, in the beginning of every action to offer their witneſſes, and therefore the concluſion is allwayes, & inde producit ſectam, which138 ſecta or ſuite in Law language is nothing but witneſſes, to prove his action, as Mr. Selden upon Forteſcue accurately obſerveth, c. 21. f. 23. And ſo alſo in bars the Law doth alſo require, that all affirmative pleadings in defence (to the intent the iſſue, and point which cometh to be tryed might be evident, and cleere to the Jury) ſhould be averred, that is, an off•r made of proofes. Yet,
Q•od conſtat clare non debet verificari, that which plainly appeareth ought not to be verified, Coke l. 9. f. 54. b. in Batens caſe. As if an infant bring an aſſize of Mortdanceſter, it is needleſſe to aver that he is within the time of limitation, for it appeareth by the infancy of the Plaintiff, and 46. E. 3. In Treſpaſſe of taking monies, it is needleſſe to ſhew the value, becauſe it appeareth, vide ibidem plura.
Floyd f. 87. b. It is pleaded that the Leſſee did ſurrender to the Grantee of the reverſion, it is needleſſe to pleade an atturnement, for a ſurrender is an atturnement, and more, H. 13. H. 7. 11. by Keble, vide ibidem plura, in Partridges caſe.
Et manifeſta probatione non indigent, Coke l. 7. f. 40. a. b. M nifeſt things need no proofe, as if the Father, tenant by Knights ſervice, enfeoff his Son, and Heire apparent within age, it needeth not to aver it to be colluſion, for it is apparent, Wimbich caſe, Ployd. & 27. H 8. Dacres caſe. So if I covenant to ſtand ſeiſed to my Wife, Son, or Coſin, it is good to raiſe an uſe without expreſſe words of conſideration, for ſufficient conſideration, and his Fatherly love appeareth, vide ibidem plura.
Non refert quid ex aequipollentibus ſi•t, it is a rule of Law and reaſon, It mattereth not what is done by equipollent, or words which amount to ſuch a value, Coke l. 5. 122 a Longs caſe. It was an exception taken to an enditement in that caſe, that they gave him unum vulnus mortale, one mortal wound, whereas it ſhould have been plagam, one mortall ſtroke but it was diſallowed by the whole Court, and ſaid, that theſe words were Synonimas, and ſignified the ſame,139 though that plaga is the moſt uſuall word in an Enditement, f. 121. vide ibidem plura, & Coke l. 5. f. 89 a Froſtes caſe. A Capias Ʋtlegatum was brought to the Sheriffs of the city of London againſt B. who was in cuſtody of Laborne in his houſe, being one of the Seriants of the City of London, Froſt cometh to Laborne with a Warrant from the Sheriffs to arreſt the ſaid•. upon the Capias Utlegatum, which he utterly refuſeth, but ſuffereth him to goe at large upon an action of the caſe brought againſt the Sheriffs, ſuppoſing that the Sheriffs arreſted him, and ſuffered him to goe at large, the Defendants pleaded that they did not ſuffer him to goe at large, and judgment was given for the Plaintiff, and the verdict warranted well the count, for in judgement of Law the Sheriff, and his Serjeants are words equipollent, & amount to ſo much, and is all one as if the Sheriffs had arreſted the ſaid B. vide ibidem plura.
A Writ is to the Sheriff, and he returneth virtute praecepti, he hath done well, for it is equipollent virtute brevis, 11. H 6. 16. In a Writ it is ſaid quam clamat eſſe jus, this equipolleth with a Fee-ſimple, and therefore in the ſubſequent part of the Writ if he inſtanceth in a leſſer eſtate, as ex dono for life, the Writ ſhall abare, 39. H. 5. 38.
Upon an Enditement for celebrating Maſſe, contra formam Statuti, 1. El I was holden that under this terme Miniſter, a Preiſt was included, becauſe a Preiſt is bound to celebrate and miniſter the holy communion, &c. and alſo it was holden by all, that the terme Clerk is ſufficient to prove him a Preiſt, or a Miniſter, Dyer f. 203. b.
Coke l. 5. f. 4. b. Verus, & antiquus redituus, the true and antient rent is not to be underſtood of the quality incident to it, but of the quantity of the rent, for that is the effect, and ſubſtance of the thing reſerved, as if the antient reſervation was of rent to be paid in Gold, and the novell reſervation was to be paid in Silver, or if a quarter of Corne was antiently140 reſerved, and now the leaſe is made, rendring eight buſhells of Corne, it is all one, for the Law reſpecteth not the formes of words, or their quality, but the ſubſtance, and effect of the matter & parum differunt, qui re concordant and they differ little, which agree and equipoll in ſubſtance.
If one maketh his Will, and committeth the Adminiſtration to one, by it he ſhall be Executor, becauſe it is all one in ſubſtance, 3. H. 6. ſo by the grant of a Church the advowſon ſhal paſſe, 7. E. 3. 15.
One granteth the nomination of an Advowſon, Habendum the advowſon, the Habendum is good, for it is the ſame thing, ſo one granteth the remainder whereas he had a reverſion, it is good enough to make the thing paſſe, 6. E. 6. Ante 134. vide Ployd. 157. b.
If a man leaſe to one an acre of Land for life, reſerving to himſelfe the herbage, the reſervation is void, becauſe he hath leaſed the ſame thing in ſubſtance, and the profits of the Land, and the Land it ſelfe, are all one, 38. H 6. 34.
Words of ſubſtance, and not uſuall, are equivalent to words of ſubſtance, and uſuall, Ployd. 140. b. As if tenant for life, and his Leſſor make a Feoffment in fee, it is the Feoffment of the Leſſee for life, and the confirmation of the Leſſor, though there be not a word of a confirmation in it, and if tenant for yeares, and the Leſſor make a Feoffment in fee, it ſhall be the livery, and Feoffment of the Leſſor, and the ſurrender of the Leſſee, and yet there was not one word of ſurrender; And if a commoner maketh a deed to the tenant of the Land, by which he renounceth the common unto him, it ſhall enure as a releaſe, becauſe the words are equivalent to a releaſe. So if Land be leaſed by Indenture for yeares, and Covenants made to render and pay for the tenements ſuch a ſumm, it is all one as a reſervation of a rent, and if the Leſſor ſay I wil have twenty pound rent, and the Leſſee agree, or if the Leſſee ſay, I will give twenty ſhillings rent, and the Leſſor141 agree, it is a good reſervation of a rent, ſo if a man be bound by Obligation to en feoffe I. S. and he maketh a leaſe for years, and a releaſe in fee, he hath performed the condition, becauſe they are all one, vide ibidem.
Yet words of art may not be ſupplyed by equivalent and equipollent words, though they beare the ſame ſenſe and ſubſtance, as in an Enditement of murder, voluntarie & ex mulitia praecogitata interfecit, is not ſufficient, but the word murder avit muſt be, ſo in an Enditement, quod quoddam tormentum in H. L. exoneravit dans eidem, H.L. cum pelletto plumbeo predicto vulnus mortale. Dans ei vulnus mortale, &c. is not ſufficient but it ſhould have been percuſſit which is the word of art, Coke l. 5. f. 222. b. Longes caſe. And the reaſon of this is given by Coke in his Preface to Littleton, that words of art are ſo apt and ſignificant to expreſſe the true ſenſe of the Laws, and ſo woven into the Laws themſelves, as it is in a manner impoſſible to change them, neither ought legall termes to be changed.
NExt to Logick by whoſe principles as by many hands, we are conducted to the knowledge of the Lawes and other Sciences, naturall philoſophy is to be placed, which is the prime and principall part of other Sciences, for by the knowledge of naturall things we are inſtructed to obſerve the diverſity of the actions and manners of men, according to the difference of climats and various conditions of them, of which any one ignorant wil be altogether unable to judge of civill, and aeconomicall affaires,142 and therefore as Mr Ployden, Have the Philoſophers ſearched ſo deeply into the law of nature, in their lawes and writings, and for the government of the people by them, given precepts to follow the rule of nature, and have taken nature to be, as it were, a foundation to all lawes? Neither have the Founders of our lawes been remiſſe in ſearching out the law of nature, neither were they void of the underſtanding of it, for their lawes argue the contrary, and ſhew, that thoſe who made them, were of more great and profound judgement, and as well learned in the law of nature as in all reaſon, and in the Law of God alſo, for nothing in our Law is ordeined contrary to nature, or contrary to reaſon, or contrary to the Law of God, but according to them all, Ployd. 304. a. and b.
And according to it hath the law eſtabliſhed diverſe grounds and maxims.
1. Quae rerum natura prohibentur nulla lege confirmata ſunt, Reg. I. C. Marcellus. Lawes which are contrary to the Law of nature loſe their force and are no lawes at all, Finch. Nom. f. 75. Such was that of the Egyptians to turne women to Merchandiſe, and Common wealth affaires, and men to keep within doores, and of the Thracians, who counted idleneſſe an honeſt thing, and ſtealing very commendable, Ibidem.
Naturae vis maxima, and Catiline ſaid, Natura bis maxima. The force of nature is very great or more then ſuperlatively great, Ployd. 309. b. and therefore all things proceeding from nature are not onely reſpected in Philoſophy but alſo in our law, and are of efficacy in our law, and taken for a conſideration ſufficient, Ployd. 305. and accordingly in Sharingtons caſe, f. 309.
It was adjudged that the affection of Andrew Bainton for the proviſion to his heires males, which he had engendred, and the affection that he had, that the land ſhould remaine in his blood, and name of Bainton, and the brotherly love that he bore143 to his brothers, were cauſes ſufficient to make uſes in the land, vide ib dem.
So conſideration of marriage and brotherly love are greater then m•ny or matter of recompence to raiſe an uſe without tranſmutation of poſſeſſion, becauſe every one of them is meerely founded on the law of nature, ibidem 3 9. a.
If a man ſeiſed in fee of Lands holden of I. S. by fealty and ten pounds of rent, and he giveth it in frank marriage to one with his daughter, the father ſhall pay the ten pound yearely untill the fourth degree is paſſed, and ſhall have nothing of the Donees for it, becauſe it was given to his daughter in marriage for her advancement, and for that reaſon the charge is tranſlated from the daughter to the father, and the conſideration of it is nature, Ib. f. 305. a.
If I make a contract with another, that if he will take my daughter to wife, that I wil give him twenty pound, if he take her to wife, he ſhall have action of debt for the twenty pound in our Law 22. E. 3. Aſſ. P. 70. and yet I have nothing by it, and if a man hath not regard to nature, it ſhall be nudum pactum, Ibid. Yet the Law hath ſuch reſpect to nature and conjunction of blood, as in diverſe caſes it matcheth neceſſity of blood with the conſideration of profit, as the ſonne may maintaine his father, and one brother another, 19. E. 4. 5. and Brothers and Coſins ſhall not wage Battaile in a Writ of Right. The ſtatute which maketh it felony to receive or give meat to one which committeth felony, he knowing it, extendeth not to a woman that receiveth and giveth meat and drink to her husband in ſuch caſe, Ployd.
Dyer. f. 300. A feoffment to the uſe of himſelfe, and after his deceaſe to the uſe of Alice which he intended to marry, untill the iſſue which he doth beget of her ſhall be of the age of 21. yeares, and after the ſon commeth to ſuch an age, then to the144 uſe of his wife during her widdow hood, the husband dieth without iſſue, it was adjudged the wife ſhall hold the fee, it being by way of uſe, otherwiſe it had been by eſtate executed. If my brother hath a ſuit againſt my Coſin and Nephew I may maintaine the cauſe of my Coſin though my brother be neerer 4. H. 6. 17. 14. H. 7. 2.
If a man menace me that he will impriſon or hurt my father or child, if I make him not ſuch an obligation, and I make it, I ſhall avoid this by dureſſe as if he had menaced me, 15. H. 6. 17. and 21. E. 4. 13.
Exception.Yet a conſideration of blood in a perſonall contract, as to give money, is not good.
Lex reſpicit naturae ordinem, Coke com. 197. a. b. The law will not ſuffer any one to demand any thing contrary to nature and reaſon. As a tenant in common may have an aſſiſe for the moiety of twenty ſhillings, and the moiety of a pound of Pepper, but for a Hawk and an Horſe, albeit they be tenants in common they ſhall joyne in an aſſiſe, for the law will not permit any one to make his plaint in an aſſiſe contrary to the order of nature, and which by nature he cannot recover as the moiety of an horſe, or any other entire thing, for that were a vain thing, & lex neminem cogit ad vana & inutilia, and the Law compelleth none to vaine and unprofitable things.
Coke com. f. 9. 2. a. The law reſpecteth the order and courſe of nature, as if the tenant hold by a roſe or a Buſhell of Roſes to pay at the feaſt of Saint Iohn Baptiſt, becauſe they are flowers not to be kept, therefore are they to be delivered at the time of growing, and the Lord may demur to diſtraine till that time: neither is the tenant driven by law artificially to preſerve Roſes, for the law in theſe caſes reſpecteth nature and the courſe of the yeare. For as Littleton here ſaith ars imitatur naturam, art doth imitate nature, Ployd. f. 540. b. when diverſe things are done at one and the ſame145 inſtant, and the one cannot take effect without the other, the common law ſhal adjudge it to precede, & it to follow which aptly ought to precede or follow, as if a diſſeiſor maketh a Leaſe for yeares, and then hee and the diſſeiſee releaſe by deed to tenant for yeares, there the law ſhall adjudge the releaſe of the diſſeiſee firſt to take effect, and then the releaſe of the diſſeiſor, for there is no privity or eſtate in the Leſſee upon which the releaſe of the diſſeiſor may enure, if the releaſe of the diſſeiſee doth not firſt inure. So if tenant for life maketh a Leaſe for yeares, and he and the other in the reverſion in fee confirmeth the eſtate of tenant for years, to have and to hold to him and his heires the eſtate of him for life ſhall paſſe firſt, and then he in the remainder, vide ibidem Paramors caſe.
Sicut natura in ſuis operationibus non facit ſaltum ita nec lex Ariſt. 9. de motu animalium, Coke com. 238. b. as nature in her operations maketh no skips ſo alſo doth not the law, as the writ de ingreſſu ſuper diſceſinam, is upon a diſſeiſin made to the demandant or ſome of his Anceſtors, of which there are four kinds, the firſt is againſt the diſſeiſor upon a diſſeiſin done to himſelfe, and this is called a writ of entrie, of the nature of an aſſiſe ſur diſſeiſin en le p•r, when the heire by deſcent is in the per by his Anceſtor, or when the diſſeiſor maketh a Feoffment in fee, gift in taile, or leaſe for life: the third is entry, ſu•diſſeiſin en le per & cui, as where A. being the feoffee of D. the diſſeiſor maketh a feoffment over to B. there the diſſeiſee ſhall have a Writ of entry ſur diſseiſin of lands &c. in which•. had no entry but by A. to whom D. demiſed the ſame, who unjuſtly and without judgment diſſeiſed them. Theſe are degrees which are to be obſerved, or elſe the writ is abateable, for as nature, ſo the law doth nothing by skips, but by degrees. The fourth is the entry ſur diſſeiſin in the poſt, which lyeth, when after the diſſeiſin the law is removed from land to land beyond146 theſe degrees, which writ is given by the ſtatute of Marlebridge, c. 18. though before at the common law in reſpect of ſuch long poſſeſſion, the demandant was driven to his writ of right, vide ibidem plura.
Vis unita fortior, Ployd. f. 307. a. united force is more ſtrong, as in Sharingtons caſe. There are three cauſes premiſed to make and raiſe uſes in lands, the firſt is his affection for the proviſion of his males, the ſecond is his affection that the lands he had ſhould remaine in his blood, the third is his Brotherly love he bore to his brother, whereas every one of them had beene ſufficient to raiſe uſes, yet when all are put together, they are of the greater force, for forces united are more ſtrong.
Conjunctio maris & feminae eſt de jure naturae, Coke l. 7. f. 13. Ariſt. 1. Polit. Nuptias non concubitus ſed conſenſus facit. Ʋlpian, & conſenſus non concubitus facit matrimonium, Coke com. f. 33. a. In matrimony there is a conjunction both of the bodies and the mindes, and in contracting matrimony, the conſent of the mind obtaineth the chiefe and ſubſtantiall parts, and corporall copulation the ſecond, and therefore is it ſaid, that the conſent and not the copulation maketh the marriage, for every denomination is from the greater, and a woman by the common law cannot conſent before ſhe is of the age of twelve yeares, nor a Man untill the age of fourteen yeares, and theſe are called annos nubiles, becauſe at that age, either of them may diſagree from a former marriage, Coke ibidem, for a marriage infra annos nubiles, underneath the marriageable yeares, is inchoate and imperfect to all purpoſes, except her dower, and accordingly was it reſolved in Ambroſa Gorges caſe, Coke l. 6. f. 40. a. Who being married, and her husband dying before ſhe was of the age of ten yeares, was notwithſtanding the former marriage adjudged to be in ward to the Queen, becauſe the former marriage was no marriage before conſent, and they could not conſent, ante annos nubiles,147 for the conſent and not the copulation maketh the marriage. And therefore is matrimony defined by Britton to be aſsemblee del home, & feme alieur deux volunts, a conjunction of a man and woman according to both their wils, f. 246. And which as Bracton ſaith, l. 1. c. 5. fit per mutuam voluntatem, for their mutuall conſent is the efficient and neceſſary cauſe of marriage, and therefore a marriage enforced, contrary to the will of either party, is unnaturall and illegall, as Kelway 19. H. 7. 52. b. Where the caſe is, that Margaret the now wife of Keble brought an action of treſpaſſe againſt Vernon, to which the defendant ſaid, that he heretofore at the Church of S. in the ſaid county tooke the Plaintiff to wife, and there were married according to the lawes of the Church, and demanded judgement if action: to which the Plaintiff ſaid, that thoſe eſpouſalls were made by menaces and dureſſe of impriſonment, and againſt the will of the ſaid Plaintiff in another county, and prayed her damages, and after great debate whether the eſpouſalls were avoidable by dureſſe or no, Frowick ſaid, that he had ſeen the bookes, and that it ſeemed cleerely that the eſpouſals were well avoided by dureſſe, and the replication, vide ibidem plura: And which alſo ſeemeth to be the reſolve and determination of all nations, for for it Romulus himſelfe was upbraided, to wit, for forcing the Sabine Virgins againſt their wils to marry the Romans, and was declared by his ſucceſſors the Roman Authors, to be a barbarous act, and a crime equivalent to a rape, as Propertius l. 2. El. 6.
And by Virgill more fully, Raptas ſine more Sabinas, That is, raviſhed contrary to the cuſtome of all nations, for in that age when Rome moſt flouriſhed, the cuſtomes of the Romans were the lawes of all nations, as Claudian l. 4. Stil.
And therefore not long after by the Romane civill law, the conſent of the eſpouſed parties was ratified by an oath, which being but a contract, was called ſponſalia de futuro, which alſo in our law at this day is of great force, for by it a precontract is a ſufficient cauſe of divorce, a vinculo matrimonii, Coke com. f. 285. a.
Vir & uxor ſunt quaſi unica perſona quia caro una & ſanguis unus, Cok com. f. 187. b. The husband and wire are but one perſon in law, Littleton. becauſe they are one fleſh and one blood, as the Scripture ſaith, and as the Philoſopher, are by nature conjoyned.
As if a joynt eſtate be made to the husband and wife and to a third perſon, the husband and wife ſhall have one moiety, and the third perſon the other moiety, becauſe the husband and wife are but one perſon in law, ſo if an eſtate be made to the husband and wife and to two others, the husband and wife ſhall have but the third part, Lit.
If an eſtate be made to a villaine and his wife, being free, and to their heires, they have ſeverall capacities, the villaine to purchaſe for the benefit of the Lord and the wife for her owne, yet if the149 Lord of the Villaine enter and the wife ſurvive, ſhe ſhall have the whole land, becauſe there was no moieties between them, 40. Aſſ. Pl. 7.
If a woman marry with her obligor, the debt is extinct, and ſhe ſhall never have action againſt the Obligor, becauſe the ſuit againſt her husband by inter marriage was ſuſpended, and therefore being a perſonall action and ſuſpended againſt one it is diſcharged againſt both, 21. H. 7. 29. h. So is it If a feme ſole baile goods to one, and marry with the bailee, they are the bailees good, ſo it is if the wife buy goods of one 33. E. 3. If husband and wife purchaſe lands to them and their heires and the hsband alien the land &c. ſhe ſhall recover the whole in a cui in vita, after his death, and the warranty of one of them, or his Anceſtors, is a bar of the whole againſt them both, 39. H. 6. 45. 21. R. 2. Judg. 63.
And for the ſame reaſon the husband cannnot enfeoff the wife, but upon a feoffment made unto her by a ſtranger, he may deliver ſeiſin unto her by a letter of attorney, for thereby he giveth nothing himſelfe, Perk. 40.
If a feoffment be made to a man and a woman, and their heirs with warranty, and they inter marry, and after are impleaded and recover in value, moyeties ſhall not be between them, for though they were ſole when the warranty was made, yet at the time when they recovered and had execution they were husband and wife, at which time they cannot take by moyeties Ployd. 483. Nichols caſe.
So if a reverſion be granted to a man and a woman and their heires, and before attornement they inter-marry, and then attornement is made, they in this caſe ſhall have no moieties. No more if a Charter of feoffment be made to a man and a woman with a letter of Attorney to make livery, and they inter-marry, and then the livery is made ſecundum150 formam chartae, they ſhall have no moiety, Coke com. f. 187. a.
Although at the common law, a man during the coverture could neither in poſſeſſion, reverſion, or remainder, limit an eſtate to his wife, yet a man now may by the ſtatute o 27. H. 8 Covenant with others to ſtand ſeiſed to the uſe of his wife, or make a feoffment or other conveyance to the uſe of his wife, for by it the eſtate is executed to ſuch uſes, for an uſe is but a truſt and confidence, which by ſuch a meane may be limited by the husband to the wife, but a man cannot covenant with his wife to ſtand ſeiſed to her uſe, becauſe they are one perſon in Law.
And if ceſty que vie doth deviſe that his wife ſhall ſell his land, and make her Executrix and dyeth, and ſhe take another husband, ſhe may ſell the land to her husband, for ſhe doth it in anter droit, and her husband ſhall be in by the deviſor, Coke com. f. 112. a.
If a free man marry a woman which is a neife, ſhe ſhall be free for ever, although the husband dyeth and ſhe ſurviveth becauſe they are but one perſon in law, unleſſe there be ſome ſpeciall Act made by the wife afterwards, as devorce or cogniſance in Court of record F. N. B. f. 78. g.
If an engliſh man marry an alien borne, ſhe ſhall be a Denizen for the ſame reaſon, Abri. of Aſſ. by Brooke, Demzen.
I•the husband and wife•aile goods to one, they ſhall not joyne in an Action of Detinue, for it is the bailement of the husband onely, and void as to her.
The husband may have an Action of treſpaſſe for taking away his wife, F. n. b. f. 53. b.
A man may have an Action at the common law, de muliere abducta cum bonis viri, if ſhe hath attained to the age of conſent, and hath actually conſented to the marriage, becauſe it is not properly a marriage till ſhe doth conſent, 13. E. 1. c. 35. Yet151 Brooke 4. 47. E. 3. treſpaſſe f. 420. rather thinketh that it ſhall be intended a good marriage till ſhe doth diſ•ſſent, but where the marriage is compleat, though the wife is dead or divorced at the time of the Action brought, the action is maintainable, but the word rapuit muſt be in the writ as well as abduxit, 43. E. 3. and therefore it will not lie againſt a woman, becauſe one woman cannot raviſh another, 43. E. 3. 23. Fulb. l. 1. f. 79.
Hereupon it is that the wife can never anſwer in any Action without her husband, and if upon an Action of treſpaſſe the wife cometh in upon a cepi corpus, and the husband doth not appeare, ſhe muſt be ſet at large without any mainpriſe, till her husband doth appeare, but he appearing may anſwer without her, and therefore a protection caſt by the husband ſerveth for the wife alſo, Finch. Nomot. f. 41.
If tenant in taile enfeoff a woman and die, and his iſſue within age taketh her to wife, he ſhall be remitted, for he cannot ſue a Formedon in this caſe, unleſſe he will ſue againſt his wife, becauſe by the enter-marriage he is ſeiſed in her right, ibid.
Si mulier nobilis nupſerit ignobili deſinit eſſe nobilis, Coke l. 6. f. 53. b. and l. 4. f. 118. b. If a noble woman marry an ignoble man, ſhe ceaſeth to be noble, as when a Barroneſſe marrieth under the degree of a Baron, by ſuch marriage her dignity is determined, but that is to be underſtood of a woman hath attained her nobility by marriage of a Duke, Counteſſe or Baron, and if ſuch an one marry with one is ignoble, ſhe loſeth her dignity to which ſhee hath attained by the marriage with one of nobility, but if a woman be noble by deſcent, as a Dutcheſſe &c. though ſhe marry one under the degree of nobility, yet her birth-right ſhall remaine, for it is annexed to her blood, and it is a Character indelebilis, ibidem. And if a Dutcheſſe marry with a Baron of the Realme, ſhe remaineth a Dutcheſſe, and loſeth not her name, Coke com. f. 16. b.
152Vir eſt caput mulieris, Bracton. Coke com. 1 2. a. The husband is the head of the wife, for God, ſaith Ployd. f. 305. hath divided reaſonable creatures into two ſexes, male and female, and the male is more ſoveraine, and the female more baſe, as Ariſtotle l. 1. Polit. Mas eſt praeſtantior, deterior vero faemina and therefore doth the female change her ſir name into the name of her husband, and alſo men for the greater part are more reaſonable then women, and have more diſcretion to guide things, then women have, and therefore Ariſtotle in the ſame place ſaith mas ad principatum aptior eſt natura, quam faemina, the man is more apt by nature to rule then the woman, and as the woman is not ſo apt to governe in high matters, ſo is ſhee not in things of a lower degree, and therefore ſaith Bracton, l. 2. c. 15. Omnia quae ſunt uxoris ſunt ipſius viri, non habet uxor poteſtatem ſui ſed vir, all things which are the wifes are the husbands and the wife hath not power of her ſelfe, but her husband, for all perſonall things ſhee hath are meerly his, and at his diſpoſing; and as the office of an executor f 210. are ſo ſetled in the husband upon the marriage as any other that were his own before, ſo as if goods be given to a Feme-covert, and another the joynture is ſevered, and the husband, and the other are tenants in common, and the executor of the husband ſhall have all the goods that were given to the wife, 21. H. 7. 29.
All the reall Chattells of the wife, are alſo the husbands, for as Hoberd f. 4. Radfords caſe, though the leaſe were at the firſt the wifes, and that the husband was poſſeſſed in her right, ſo as though he had purchaſed the Fee-ſimple, the Leaſe had not been extinct, yet by the inter-marriage he had full power to alien it, and if he ſurvive the wif•, he is to enjoy it againſt her Executors or Adminiſtrators, vide Ployd. 191.
But where the wife hath a terme for yeares, the husband cannot deviſe it to another by his Will,153 or grant a rent-charge out of it (for ſhee hath an eſtate in it before, and at the time of his death, which ſhall prevent the Deviſee) and ſhee ſurviving is remitted to the terme, and therefore ſhall avoide the rent-charge, 14. Eliz. Ployd. 418 b. If Leſſee for yeares granteth his terme to a Feme-covert, and another, or if a feme-ſole, and another are Joyn-tenants for years, and ſhee taketh an husband, the Joynture is not diſſolved but continueth, and the Survivor of the feme, or the ſtranger ſhall have all the terme, becauſe the terme is a Chattell reall, and the marriage of the feme ſhall not deveſt the terme out of the feme, but ſhee had an eſtate in it, as ſhee had before, ſo that if an eſtranger ouſt them, the feme ought to joyne with the baron in the ſuite of ejectione firme, and the feme ſhall have judgement as well as the baron, Ployd. ibidem.
So in an action of debt upon arrearages of account againſt one who was receivor to the feme whilſt ſhee was ſole, they both muſt joyne, though the Auditors were aſſigned during the coverture, for the very cauſe of action, that is the receipt, was in her right, 16. E. 4. 8.
The husband hath power alſo to diſpoſe of things in action, and his releaſe of an obligation made to the feme, or where goods were taken from her whilſt ſhee was ſole, ſhall be good againſt the wife, and he dye, 87. H. 8. 1.
But if he dye without making ſuch a releaſe, the Wife ſhall have an Action upon the Obligation, and not the Executors of the husband, likewiſe the wife, or her Executor if ſhee dye ſhall have thoſe things in action, and not the husband, but ſhee may make her husband her Executor, and then he ſhall recover them to her uſe, 39. H. 6. 27.
The wife is unable to contract with any, without the conſent of her husband, and upon a Feoffment to a feme covert, ſhee taketh nothing unleſſe her husband will agree, and where one is bound to enfeoff the husband and wife, the husbands refuſall is154 the refuſall of them both, Finch. Nomot. f. 44.
And where the husband and wife are joynt Purchaſers, the husband may make a Feoffment and livery upon the Land, which ſhall worke a diſcontinuance, though the wife be in preſence upon the Land, and will not agree.
But if the husband and wife bargaine and ſell the wives Lands by Indenture, and the Vendee grant unto them for the ſame a yearly rent, her acceptance of this rent after her husbands death doth not bar her of the Land, although the acceptance be an agreement to the bargaine, but the bargaine being but a contract is the bargaine of the husband onely, and not of the wife, for a wife is ſub poteſtate viri cui invita contradicere non poteſt, and therefore is the Writ cui invita given to the wife by Law, for the recovery of her Land after her husbands death, being aliened by him, and therfore it is that Judges, when a woman is to acknowledge any fine of any Lands, doe examine her apart from her husband, to know whether ſhee be willing or come to doe it by compulſion of the husband. Offi of Ex. f. 210.
And upon a joynt purchaſe of the husband and wife during coverture, if the husband alien, ſhee ſhall recover the whole after her husbands deceaſe, unleſſe ſhee acknowledge a Fine, and a cui invita is given to the feme by the Statute of Weſtminſter 2. c. 3. upon a recovery by default againſt baron and feme, and by the equity of it a feme divorced ſhall have a cui ante divortium to recover the Land loſt by baron and feme by default before the divorce, Ployd. f. 58. a. And if Lands be given in Frank-marriage, and a divorce had afterwards, the feme ſhall have all the Land, ibidem. & the reaſon that he there giveth, is becauſe the marriages of women, and their advancement by it are much favoured in Law, as if a woman give Lands to a man cauſa matrimonij praelocuti, and he will not marry her, ſhee ſhall have a Writ to recover the Land, ibidem, and Dyer f. 13. A man giveth certaine goods to his Daughter155 in marriage, upon a divorce the feme ſhal have al the goods ſo given that are not ſpent, becauſe they were given for her advancement, ſo as it is regularly true. In omnibus fere uxori ſub poteſtate viri ſuccurritur, Coke l. 9. f. 84. b. In all things almoſt the Law helpeth the wife, becauſe ſhee is under the power of her husband, as if baron and feme, as in right of the wife, have right to enter into Lands, and the Tenant dyeth ſeiſed, the entry of the husband is taken away upon the heire which is in by deſcent, but if the husband dye, the wife or her heires may well enter upon the iſſue, for the laches of her husband ſhall not turne to the prejudice of the wife, or her heires, Littl. but otherwiſe it is if the wrong was done to the feme ſole before ſhee took husband, Coke Com. f. 24. a. vide ibidem plura, and unleſſe it be for the performance of a condition annexed to the eſtate of Land, as if a feme be infeoffed either before or after marriage, reſerving a rent, and for default of non-payment a re-entry, in that caſe the laches of the baron ſhall diſ-inherit the wife for ever, ibidem b.
Ubi nullam matrimonium ibi nulla dos, Bracton Coke com. f. 32. a. where there is no marriage there is no dower,Ployd. f. 375. a. for the marriage of the woman is the principall cauſe of her dower, and though the ſeiſin of the baron, and death of the husband are cauſes, ſine qua non, without which a dower cannot be had, yet the procatartique and impulſive cauſe of the dower of the woman, is the paines and burden ſhee endureth under the power, and yoke of matrimony, for as Tholoſanus,Tholoſanus Synt. L. 9. c. 11. matrimonium is quaſi matris munus & a matre potius, quam a patre dictum, becauſe ſhee beareth the burden in her wombe, and with painfull labour delivereth it, and is very indulgent to nouriſh it, and for thoſe reaſons as Bracton ſaith, dowers were inſtituted for a competent livelyhood for the wife during her life, to wit, propter onus matrimonij, & ad ſuſtentationem uxoris, & ad educationem156 liberorum ſi vir premoriatur, for the burden of matrimony and ſuſtentation of the wife, and education of the children if the husband dy before, l. 5. c. 22. which Ockam expreſſeth in a more affectionate terme, and calleth her dower praemium pudoris the reward of her chaſtity, and love, f. 40. And therfore though it be not neceſſary, that the ſeiſin of the land ſhal continue during the coverture, for notwithſtanding the alienation of the husband, the wife ſhall be endowed, yet is it neceſſary the marriage ſhall continue, for if 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,
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-habiteth157 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 to158 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 it159 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 entire, and whereof no diviſion can be made by metes and bounds, a woman cannot be endowed of the thing it ſelfe, yet the woman ſhall be endowed thereof in a ſpeciall, and certaine manner, whereby ſhee may have ſatisfaction, as of a Mill a woman ſhall not be endowed by metes and bounds, nor in common with the heire, but either ſhee may be endowed of the third tole-diſh, or of the whole Mill by every third moneth, and ſo of a villaine, either the third dayes worke, or every third weeke, or moneth.
So a man ſhall be endowed of the third part of the profits of ſtallage, of the third part of the profits of a Faire, or of the third part of the profits of the Marſhalſey, of the third part of the profits of keeping160 of a Park, of the third part of the profits of a Dovehouſe, and likewiſe of a third part of a Piſcary, by the third Fiſh, or the third caſt of the Net, or the third Preſentation to an advowſon, and a Writ of Dower lyeth for the third part of the profits iſſuing out of the cuſtody of a Goale, of the third part of the profits of Courts, Fines, and Heriots, and a woman ſhall be endowed of tithes, and the ſureſt endowment of tithes is of the third ſheafe, for what Land ſhall be ſowen, is uncertaine.
Exception.But in ſome caſes of Lands and Tenements which are diviſible and which the heire of the husband ſhall inherit, the wife ſhall not be endowed, as if the husband maketh a Leaſe for life of certaine Lands, reſerving a rent to him and his heires, and after taketh a wife, and dyeth, the wife ſhall not be endowed neither of the reverſion, becauſe there was no ſeiſin in Deed or in Law of the free-hold, or the rent, becauſe the husband had but a particular eſtate therein, and no Fee-ſimple, Coke com. f. 32. a. vide ibidem plura.
Impoſſibile eſt unum corpus in duobus locis eſſe ſimul. it is impoſſible for one body to be at two places at one and the ſame time, Pop. Rep. 58. 3. & 4. Eliz. As if a man make a leaſe of two Barnes rendring rent, and for default of payment a re-entry, if the tenant be at one of the Barnes to pay the rent, and the Leſſor at the other to demand the rent, and no body be there to pay it, yet the Leſſor cannot enter for the condition broken, becauſe there was no default of the tenant, he being at one Barne, for it was not poſſible for him to be in two places together, and Popbam, Walmeſt•, and Fenner ſaid that alſo perhaps that the tenant had not money ſufficient to pay it at either of the places, but it is ſufficient for him to have and provide one rent, which cannot be at two places together, ibidem.
Jura naturalia ſunt immutabilia, Bracton l. 9. c. 23. Coke l. 7. f. 15. b. The Laws of nature are unalterable, as if a man have a ward by reaſon of a Signiory161 a ſigniory and is outlawed, he forfeiteth his wardſhip to the King, but if a man have the ward-ſhip of his own ſon or daughter which is heire apparent, and is outlawed, he doth not forfeit this ward-ſhip, for nature hath annexed it to the perſon of the father, 33. H. 6. 55.
In the ſame manner, maris & faminae conjunctio eſt de jure naturae the conjunction of a man and a woman is of the law of nature as Bract. l. 1. c. 33. Dr. and Student, c. 31. doe hold; now if he that is attainted of felony or treaſon, is ſlaine by one who hath no authority, or executed by him who hath authority, but purſueth not his warrant, in this caſe his eldeſt ſon can have no appeale, for he muſt bring his appeale as heire, which being ex proviſione hominis, he loſeth it by the attainder of his father, but his wife, if any he have, ſhall have an appeal, becauſe ſhe is to have her appeale as his wife, which ſhe retaineth, notwithſtanding the attainder, becauſe the conjunction of man and woman is by the law of nature, and therefore it being to be intended of true and right matrimony is indiſſoluble, and this is proved by the book 33. H. 6. f. 57.
So if there bee mother and daughter, and the daughter is attainted of felony, now cannot ſhe be heire to her mother for the cauſe aforeſaid: yet after her attainder if ſhe killeth her mother, this is parricide and petit treaſon, for yet ſhe remaineth her daughter, for that is of nature.
All which accord with the rule of the civil law, jura ſanguinis nullo modo dirimi poſſunt, the lawes of conſanguinity and the lawes of blood can no way be broken, and therefore the corruption of blood taketh away the privity of the heire, which is nomen juris, and not the privity of the ſon, which is nomen naturae, as if an attainted perſon be killed by his ſon, this is petty treaſon, for the privity of the ſon ſtill remaineth, but if a man attainted be murdered by a ſtranger, the eldeſt ſon ſhall not have the appeale, becauſe the appeale is given to the heire162 for the youngeſt ſons ſhall not have it, 36. H. 6. 57. 58. 21. E. 3. 17.
If the ſon be attainted and the father covenanteth in conſideration of naturall love to ſtand ſeiſed of Land to his uſe, this is a good conſideration to raiſe an uſe, becauſe the privity of naturall affection remaineth. So if a man attainted have a Charter of pardon, and be returned on a jury betweene his ſon and I. S. the challenge remaineth, for he may maintaine any ſuit of his ſon though the blood be corrupted.
If a villaine be attainted, yet the Lord ſhall have the iſſues of the villaine borne before or after the attainder, for the Lord hath them jure naturae, as the increaſe of a flock, Bacons Maxims f. 49. and 50. vide ibidem plura.
If the father be ſlaine, the ſon ſhall have an appeale of it, for it is a loſs to the ſon to loſe the father, and the common law giveth the appeale to the ſon before any other, for the earneſt intent of revenge, which the law ſuppoſeth to be in him againſt the offender for the killing of him, and that the ſon by preſumption had the more great love and affection Ployd. ibid. f. 304. b.
And from thence Bromly ſaid, that it was an ancient uſage when a felon was found guilty in an appeale of murder, that all thoſe of the blood of him was murdered, ſhould draw the felon with a long cord to execution, which was grounded upon the loſs, that all the blood had, by the murder of one of them Ployd. 406. b.
Ed. 6. 3. The father being impleaded made a feoffment to his eldeſt ſon and heire apparent hanging the ſuit, and the King brought a writ of Champerty againſt the father and ſon, and by the opinion of moſt, the action was not maintainable, becauſe by any law the ſon is to aide the father, and yet it is in danger of the words of the Act.
In an appeale brought by the wife of the death of her husband, the ſon being an abettor ſhall not163 render damages but ſhall avowe the abettment, as neer in blood.
Cuique natu•ale eſt id quo'd procreavit tueri, Ployd. 304. a. As matrimony is neceſſary betweene man and woman, and that there is a naturall deſire in them and all other living creatures to procreate and relinquiſh a thing like unto themſelves, & id non animi judicio, not by the arbitrement of the mind nor as a thing indifferent, which a man may doe or not doe, but is a naturall appetite, to which nature urgeth us, ſo hath nature inſtilled love in the procreator to the thing procreated, which urgeth him to have a care to the education of the thing procreated, to provide for him all things neceſſary, and to defend him againſt all perils, and therefore hath the common law given to the father, the cuſtody and education of his ſon, and if any one take him from him he ſhal have the writ againſt him Quare filium & heredem ſuum rapuit, and that law is in ſatiſfaction of nature, but in his writ he muſt ſay Cujus maritagium ad ſe pertinet, becauſe the marriage of his ſon and heire and of his daughter and heire appertaineth to him, who being once married, he cannot have this Writ, 11. H. 4. 23. M. 33. H. 6. 55. Fulb. l. 1. 80. And if a man taketh way another mans ſon and heire apparent, and beſtoweth upon him good aparrell, and the father ſeiſeth his ſon, he ſhall not be impeached for taking of the apparrell, for in that he may make a good juſtification for the taking of the body, it muſt needs extend to the apparrell of the body, becauſe the law conſidereth not bare and elementall bodies, but bodies apparrelled, 12. H. 4. 16. 8. E. 2. Trus. 31. 32. E. 3. Guard. 32. Ibidem.
Amor deſcendit, Ployd. 293. b. Oſbornes caſe, it is an old ſaying that love deſcendeth, which by experience is found to be more true then to aſcend, and for that reaſon the law which greatly tendreth the preſervation of infants, hath appropriated the cuſtody of them and their lands in Soccage to their164 parents, becauſe they love their children beſt, and in default of them, to their other Anceſtors more neere in blood and in naturall affection to them, and that is for the profit of the infant: for the guardian muſt keep the infant with the land, and of the reſt of the profits give an account to the infant, and if the guardian die, the executors ſhall not have the guard of the infant, becauſe they are voide of ſuch naturall affection, but the neerer Anceſtor ſhall have it.
Quaelibet haereditas naturaliter quidem ad haeredes deſcendit, nunquam autem naturaliter aſcendit, Glan. l. 7. c. 1. Every inheritance doth naturally deſcend to the heires, but never naturally aſcendeth, Coke l. 3. f. 4. in Ratcliffs eaſe, of which Bracton giveth this reaſon, quod quaſi ponderoſum quiddam jure naturae deſcendit, nam omne grave fertur deorſum, that as a certaine ponderous thing, it by the law of nature deſcendeth, for every heavy thing deſcendeth downewards, to which this reaſon may be added, that as the affection of love ſo doth the effects of love deſcend; for as Ariſtotle, the reaſon why parents love is ſo fervent and permanent to their iſſues, is, becauſe love doth deſcend, and their deſcending love appeareth, in that they make proviſion for the preſent ſuſtenance of them, and future maintenance and continuance of their name, and therefore as Mr. Ployden ſaith, it is a great bleſſing of God upon Parents to have iſſue male, to whom they may leave the fruits of their labours, and eſtabliſh their eſtates and inheritances in their names, Ployd. 305. b. to which by love and naturall inſtinct they are incited.
But on the contrary, as the love and proviſion of children, towards their Parents doth not naturally aſcend for the thing procreated, doth not actually provide for the procreator where it is ſui juris, ſo there eſtates and inheritances ſhould not aſcend, and therefore, as Mr. Littleton, it is a maxime in our law, that inheritance can lineally deſcend, but not lineally165 aſcend, wherein the civill law unnaturally differeth from the common law, for the civill law alloweth lineall aſcention as well as lineall deſcent, lineall and collaterall deſcent, but not lineal aſcention of inheritances as it doth, which, as Coke, is one of the cauſes of ſuch diverſities of opinions in caſes of deſcents in the civill law, and the contrary is one of the cauſes of the certainty of the rules of the common law in caſes of deſcent & inheritance. Coke l. 3. f 49. b.
If there be father, Vncle, and ſon, and the ſon dyeth, the Vncle ſhall be heire to the ſon, becauſe inheritance cannot lineally aſcend; for by this maxime onely lineall aſcention in the right line is prohibited, and not in the collaterall, Coke ib. & com. f. 11. b. but otherwiſe it is in caſe of purchaſe, as if a leaſe bee made to the ſonne, the remainder to the next of blood, the father in this caſe ſhall have the remainder, becauſe he is next of blood, and ſo adminiſtration may be granted of the goods of the ſon or daughter to the father and mother, as next of kin, 5. E. 6. Coke ibidem.
Haeres eſt alter ipſe & filius eſt pars patris, Ariſt. Coke l. 3. f. 12. The heir is another ſon, and the ſon is a part of the father, and for that reaſon if a man be ſeiſed of three Acres of Land, and acknowledgeth a recogniſance or a ſtatute &c. and enfeoffeth A. of one Acre, B. of another, and the third deſcend to the heire, in this caſe if execution be ſued onely againſt the heire, he ſhall not have contribution, for the heir ſitteth in the ſeat of his Anceſtor, and though the father be dead, yet is he as it were not dead, becauſe he hath left his like, and the heir is a ſecond ſame, and the ſon is part of the father, and therefore the heire ſhall not have contribution againſt any Purchaſor, though in truth the purchaſor came to the land without any valluable conſideration, for the conſideration of purchaſe is not materiall in this caſe, and though in the caſe of a recogniſance, ſtatute or judgement, the heire is166 charged as terre-tenant, and not as heire, 27. H. 6. Execu. 135. becauſe in either of them the heire is not bound, yet hee ſhall not have contribution againſt the purchaſor, contrary to the opinion of Finchden in 48. E. 3. f. 5. b. for the reaſon aboveſaid, yet is the heire not charged meerely as terretenant, for he ſhall have contribution againſt thoſe who are heires, as himſelfe, Popham, f. 171.
And for the like reaſon, if a man bindeth him and his heires, to pay a certaine ſum at a day, and dieth, it is at the election of the obligee to ſue the heire, Executors or Adminiſtrators of the obligor, and if the executors have aſſets in their hands, yet the obligee may ſue the heire if he will, becauſe he hath bound the heire as well as himſelfe, neither can the heire plead that there is aſſets in the hands of the executors, day of the writ purchaſed as heretofore in ſome ancient bookes it hath beene done, but he muſt pleade rien by deſcent, 10. H. 7. f. 8. Ployd. f. 440. Davis caſe, For now the law is changed, and it is accounted his owne debt, and debt will lie againſt the heire of the heire to many generations, as Dier affirmeth f. 868. albeit of this Mr. Ployden maketh a doubt, but his plea, that he had nothing at the day of the writ purchaſed, nor ever after, is good, for if he before aliened the aſſets he is diſcharged of the debt, Popham. f. 151.
But if the heire doth not confeſſe the Action, and ſhew the certainty of the aſſets, but pleadeth rien by deſcent, is condemned by default of anſwer, the Plaintiff ſhall have execution of his other Land, or of his goods, or of his body by capias ad ſatisfaciendum, as he might have had for the debt of the heire himſelfe, if he had made the obligation, vide 21. E. 3. f. 9. & ibidem plura, and Coke l. 3. Sir William Herberts caſe, where the caſe is upon a Scire facias againſt the heire. But otherwiſe if the executor in debt pleadeth rien entre mains &c. and is found againſt him, nothing ſhall bee put in execution, but the goods of the dead, becauſe167 the debt is not the debt of the executor, but of the teſtator, and is charged in anothers right, and hath the goods in anothers right, whereas when the heire denieth aſſets &c. and it is found that he hath aſſets, the debt of his Anceſtor is become his debt, in reſpect of the aſſets which he hath in his owne right, and ſo the property which he hath in his own right of the land, maketh the debt his own proper debt, and for that reaſon the writ ſhall be in the debet and detinet, and the Plaintiff may have execution by elegit of the moiety of all his Lands, as a fieri facias of his goods, Ployd. ibidem f. 441. But in Popham f. 151. it is ſaid by Iones and Crew that a generall judgement ſhall be given againſt the heire, if he doth plead falſly, that he hath no aſſets, and not upon a nihil dicit.
Haeres non tenetur in Anglia ad debita anteceſſoris reddenda, niſi per anteceſſorem ad hoc fuerit obligatus praeter quam d ebita regis tantum, Flet a. l. 2. c 55. An heire is not bound in England to pay the debt of his Anceſtor, unleſſe it be the debts of the King, Coke com. f. 386. a As if a man bind himſelfe by warranty, and bindeth not his heire, they are not bound, for he muſt ſay, Ego & hae•edes mei warrantiabimus, I and my heires will warrant, ibidem.
Coke com. 144 b. If a rent charge be granted to one and his heires, he ſhall not have a writ of Annuity againſt the heire of the grantor, albeit he hath aſſets, unleſſe the grant be for him and his heires.
And the heire by the grant of an Annuity by the Anceſtor, ſhall not be bound, unleſſe hee have aſſets
And it is a Maxime at the common law, that the heire ſhall never be bound to any expreſſe warranty, but where the Anceſtor was bound by the ſame warranty, for if the Anceſtor be not bound, it cannot deſcend upon the heire, as if a man maketh a feoffement in fee, and bindeth his heirs to warranty, this is a void warranty, becauſe the Anceſtor himſelfe was not bound, as alſo if a man bind his heirs168 to pay a ſum of money, this is void, Coke com. f. 386. a.
Exception.Cuſtomary inheritances ſhall not be aſſets to charge the heire in an Action of debt upon an obligation made by his Anceſtors, although he bind him and his heires.
And for the ſame reaſon iſſue in taile ſhall never avoid things done by his Anceſtor, but ſuch things which are, or may be to his diſadvantage, and not for the benefit of the iſſue, as T 44. E. 5. f. 21. Where tenant in taile was upon a defeaſible title, and to have a releaſe of right of him that had right, he granted to him a Rent-charge of twenty pound, and that the charge ſhould be levied upon the iſſue in taile, and becauſe the rent was for the releaſe of right, and the iſſue had benefit by it, it was adjudged that the iſſue ſhall not avoid the grant, and 46. E. 3. f. 4. If Lands be given in taile, ſo as the Donee may alien for the profit of his iſſue, that is a good condition or power limited to him; And ſo if tenant in taile ſuffer a common recovery, in which he is vouched, and hath recompence, the iſſue ſhall be bound, and ſo if he alien with warranty, and leaveth aſſets to his iſſue, the iſſue ſhall not avoid the warranty, becauſe it is not to his diſadvantage, Ployd. f. 437. b. in Smiths caſe, vide.
Semper praeſumitur pro legitimatione purorum, & filiatio non poteſt probari, Coke l. 5. f. 98. b. Burys caſe. Legitimation of Children is allwayes preſumed, and begetting of Children cannot be proved, Bury was divorced from his firſt wife, a vincul•matrimon•j, cauſa frigiditatis, and as he lawfully might married a ſecond wife and had iſſue by her, and it was adjudged that the iſſue of the ſecond wife was legitimate, for notwithſtanding his naturall imbecility depoſed before the divorce, it was ſaid, that a man might be habilis and inhabilis diverſis temporibus, and that though the ſecond marriage was, yet it remaineth a marriage untill it is diſſolved, and by conſequence the iſſue which was had during the coverture169 if no divorce was had in the life of the parties is lawfull, for lawfulneſſe of Children is allwayes preſumed, and filiation cannot be proved, Ibidem.
Coke Com. 126. a. A man leaveth his wife enſeint with child, iſſue ſhall not be taken that ſhee was not enſeint by her husband, for filiatio non poteſt probari, but the iſſue muſt be, whether ſhee were enſciut at the day of her death, & ibidem. f. 244. If the husband be within the foure Seas, that is, within the jurisdiction of the King of England, if the wife hath iſſue, no proofe is admitted to prove the child a baſtard, for filiatio non poteſt probari, unleſſe the husband hath an apparent impoſſibility of procreation, as if the husband be but eight years old, or under the age of pro-creation, ſuch iſſue is a baſtard, albeit he be born within marriage.
The Law ſuppoſeth that to be true, which is falſe, becauſe it may be true, as a man marrying a woman that was with-child before marriage, the Law ſuppoſeth the child to be the 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 inheritance170 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 his171 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 great172 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 birthright, 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,
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.
173But 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•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.
174But 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.
175If 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,
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 caſes176 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 in Law he is no iſſue, for he that is born of unlawful copulation, is not to be accounted among children, ſo it is if a man make a leaſe for life to B. the remainder to the eldeſt iſſue male of B. to be begotten of Jane S. whether the ſame be legitimate or not legitimate, B. hath iſſue a baſtard on the body of Jane S. this Son or iſſue shall not take the remainder, becauſe he is no iſſue, ibidem, and for the ſame cauſe if after the birth of the iſſue, B. had married I. S. ſo as he became baſtard eigne, and had a poſſibility to inherit, yet he shall not take the Remainder. Ibidem.
And though a baſtard having gotten a name by reputation, may purchaſe by his reputed and known name, to him and his heires, yet he can have no heir but of his body, and if he hath no iſſue, the Land shall eſcheate, if he purchaſe any, Finch Nomot. f. 130.
The Pope, Emperor, and Prince himſelfe, cannot legitimate a baſtard to enjoy any benefit of our Law, the Parliament hath onely that power, Com. of England, f. 242. And it is related by Bodin, l. 2.177 de repub. That one Ieane Navarre calling himſelfe Count Palatine, by virtue of the power he ſaid he had of the Pope made many baſtards of France legitimate, for which he was condemned by arreſt of Parliament as laeſae majeſtatis reus, wherein their Law ſeemeth to accord with ours, for it is onely in the power of the King and Parliament to make a baſtard legitimate, but the King may diſpenſe with a baſtard to be a Preiſt, Davis Reports f. 37. a.
The civill Law depriveth the adulterous iſſue of all benefit, the Eccleſiaſticall Law alloweth things needfull for ſuſtentation, but by the Laws of this Realme one may give or deviſe all to a baſtard. Swinborne teſtaments, f. 230.
And by our Law if a grant be made to a baſtard by the name of him who is ſuppoſed to engender him, it is good if he be known by that name, ſo if a remainder be limited to Richard the Son of Richard Marwood, it is good, although he be a baſtard, ſo in caſe of purchaſe, a baſtard eigne in reſpect of the ſubſequent marriage is capable of his reputed Fathers guifts, for though by the civill Law his right of Primogeniture is remitted by the ſubſequent marriage, according to the rule ſubſequens matrimonium tollit peccatum praecedens, yet by the common Law he is in it rejected, and hee made uncapable of any inheritance by deſcent, though in caſe of purchaſe it may be ſufficient, as 39 E. 3. Richard Thompſon having iſſue by one Ioane before marriage one Agnes, and after inter-married with Ioane, and made a Feoffment in fee, and re-taked the eſtate unto himſelfe for life, the remainder to Agnes the Daughter of the ſaid Richard and Ioane, and agreed that it was a good remainder without any averrement that ſhee was known to be their Daughter, but it was there objected, that a baſtard is not their Daughter in Law, and therfore the remainder void; but Finch den gave the rule, and ſaid it is found that the Daughter was borne before the eſpouſalls, ſo that178 by their eſpouſalls after ſhee is their Daughter, ſo as though by the common Law shee was not their Daughter, yet in ſo much that ſhe hath colour by the Eccleſiaſticall Law, which ſaith, that ſubſequens matrimonium tollit peccatum praecedena, it is ſufficient in caſe of conveyance to make the remainder good, Coke l. 6. f. 65. a. vide ibidem plura.
Dominum a poſſeſſione cepiſſi dicitur, Reg. I. C. paulus, Dominion is ſaid to have his begining from poſſeſſion, and that jure naturali, for we gaine Dominion of ſome things by the Law of nature, that is, as Cicero hath it, veteri occupatione, ut qui quondam in vacua venerunt, by long occupation and poſſeſſion of thoſe things into which being void we have entred, which no man can take from us but by injury, and therefore doe the Civilians derive poſſeſſion, a pedum poſseſſione, from the fixing our feete upon any particular thing, and by long poſſeſſion is turned into right, longa enim poſſeſſio eſt pacis jus, Bracton, f. 50. Long poſſeſſion is the right of peace. And therefore in the caſe of a Charter of Feoffment, if all the witneſſes to the Deed be dead (as no man can keepe his witneſſes alive, and time weareth all things) then violent preſumption, which ſtandeth for a truth, is continuall, and quiet poſſeſſion; for ex d uturnitate temporis omnia praeſumantur ſolenmiter eſſe acta, Glanvill, for by long continuance of time all things are preſumed to be ſolemnely acted, Coke com. f. 6. b. And therupon Bracton giveth the rule, Longum tempus & longus uſus, quiexcedit memoriam hominum ſufficit pro jure. Long poſſeſſion, & long occupation, which doth exceed the memory of man, ſufficeth for a right, l. 4. f. 230. But what meaſure of time maketh ſuch a right, by which a Fee-ſimple may be attainted diverſe have differed in opinions, ſome judging the ſame to be according to the computation of years from the time of King Henry the firſt, to the Statute of Merton, which amounteth to ſeventy ſix yeares, and others have limited it to an hundred years, which according to the civil law is longiſſimum179 vitae hominum tempus, the longeſt time of the life of men, but the true meaſure of it according to Mr. Littleton, is, where things have been uſed ſo long as the memory of man cannot remember the contrary, that is, either by the knowledge, and memory of proofe, or by record, or ſufficient matter in writing, ſo as if there be any ſufficient proofe of record or writing to the contrary, albeit it exceedeth the memory, or knowledge of any man living, yet is it within the memory of man, Coke com. 115. a.
And as by the courſe of nature, time is the meaſure, and conſumer of all things.
So doth Art and Law imitate nature, which giveth unto it ſuch power and authority, as to change, to raiſe, to alter, and to eſtabliſh titles, wherein the Civill, and the common Law do ſquare, for by the civill Law there is required a juſt title bona fides, and continuall poſſeſſion, to make a title of preſcription, but the common Law onely requireth, continuall poſſeſſion, and that naturalis poſſeſſio ad praeſcriptionem ſufficit, naturall poſſeſſion ſufficeth for a preſcription. As if a man preſcribe to have a rent, and likewiſe to diſtraine for the ſame, it cannot be avoided by pleading, that the rent hath allwayes been paid by coertion, or that it began by wrong, Coke com. 114. a. So Jeptha pleaded preſcription againſt the Ammonites, theſe Lands, ſaith he, have we poſſeſſed theſe 700. yeares.
And the reaſon why this long uſage and preſcription was brought in to be of the force and ſtrength to make a right, 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 Anceſtors180 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,181 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 heire182 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•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 prefe•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, barreth183 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 if an Action of waſt be brought by two joynt-tenants, the releaſe of one ſhall bar the other, as it is holden, 9. H. 5. f. 15. by the Court, for in waſt the perſonalty is the principall; and though one joynt-tenant cannot prejudice the other in regard of the matter of inheritance or franke tenement, yet in regard of the profits of the frank-tenement they may, vide ib. plura.
If husband and wife purchaſe ſocage lands to them and their heires of their bodies, and they having iſſue within fourteen yeares of age doe dy, in this caſe if the grandmother of the part of the mother of the iſſue, firſt ſeiſe the Ward, ſhe ſhall have the Wardſhip, and not the grandfather of the part of the father of the iſſue, 8. Eliz. 296. b. becauſe they are in aequali jure, and where the right is equall the condition of the poſſeſſor is the better. To which obiter may be annexed the ſage judgement of Auguſtus, who after the civill wars, being moleſted with the complaints of diverſe who demanded many places of ambiguous right, from the poſſeſſors, becauſe they ſeverally were given by the Senate, Pompey, Caeſar, Lepidus, or Auguſtus to the Souldiers, gave ſentence for the poſſeſſors.
Duo non poſſunt unam rem in ſolido poſſidere, R g. I. C. Ʋlpiamus, & Coke com. f. 368. a. Two cannot poſſeſs one and the ſame thing fully and wholy, for dominion had its beginning from poſſeſſion, and as there cannot be two Lords and Maſters of one and the ſame thing fully and wholly, ſo cannot two fully and wholly poſſeſs one and the ſame thing.
As if A. of B. be ſeiſed of a Meſe, & F. of G. that hath no right to enter into the ſame Meſe claiming the ſaid Meſe to hold to him and his heires, entreth184 into the ſaid Meſe, but A. of B. is continually abiding in the ſame Meſe. In this caſe the poſſeſſion of the frank-tenement ſhall alwaies be adjudged in A. of B. and not in F. of G. becauſe where two be in one houſe or other tenements, and the one claimeth by one title, and the other by another title, the law ſhall judge him in poſſeſſion that right hath, for two cannot poſſeſs one and the ſame thing fully and wholly. But if a man hath iſſue two daughters, Baſtard eigne and mulier puiſne, and dieth ſeiſed, and they both enter generally, the ſole poſſeſſion ſhall not be adjudged onely in the puiſne, becauſe they claime by one and the ſame title. Coke ibidem.
Yet though the poſſeſſion of one thing cannot be fully and wholly but in one, yet the property may be in two, as Ployd. f. 5. 24. Manwood ſaid, it is not ſtrange in our law that two ſhould have a ſeverall intereſt in one and the ſame terme, and two properties in it, for if leſſee for yeares grant over his terme to another by deed indented rendting rent, and that for default of payment, that he ſhall enter and retaine till the grantee hath paid to him the rent, if he doe enter for default of payment and retaine, he hath one property and the grantee alſo hath another property, for his intereſt is not gone; but hath a property tel quel, ſuch as it is, and may have all the property upon payment of the arreares.
So if one hath a terme for yeares, and is bound in a recogniſance or ſtatute ſtaple, and execution for non pay-ment is ſued againſt him, and the terme is extended, and a certaine annuall value delivered to the Connuſee, as it well may be (for it may bee ſold out-right, or extended to an annuall value) there the connuſee hath one property for the payment of his debt, and the leſſee another property, and upon the payment of the debt ſhall have the terme again.
185A woman made a leaſe for yeares of mills in Kent, with exception that ſhe ſhould have the profits, and there was a great debate, whether the exception were good or no, becauſe the profits of the mills was all the benefit, and in effect the mills themſelves, but at the laſt the exception was judged good in law, and that the woman ſhould have the profits. There if ſhee enter to have the profits ſhe hath one property, and the leſſee another property, and it is incertaine how many yeares the property of the woman will continue. So if one Leaſe ſheep for a time to manure his land, or pawn his dog, as the caſe was in 5. H. 7. The owner hath ſome property, and he to whom the Sheep is leaſed or the dog pawned, another, Ployd. ibid.
Poſſeſſio fratris de feodo ſimplici facit ſororem eſſe haeredem, The poſſeſſion of the brother of a fee ſimple maketh the ſiſter to be heire, Littleton. Coke com. f. 14. b. As if one hath iſſue a ſon and a daughter by one venter, and a ſon by another venter, and dieth ſeiſed of Lands in fee-ſimple, and the eldeſt ſon entreth into the land, and dieth without iſſue, the Siſter ſhall have the land, and not the younger ſon, though the younger ſon be heire to the father, for the poſſeſſion of the brother of the fee-ſimple maketh the ſiſter to be heire, but the brother muſt be in Actuall poſſeſſion, and there muſt be pedis poſitio, a corporall fixing of his foot, and entry upon the land; and there muſt be ſome Act done to make her heire, for ſhe is but haeres factus by the actuall poſſeſſion of her brother, for the younger ſon is, haeres natus to the father, and if the eldeſt ſon had died before he had taken actuall poſſeſſion, the younger ſon might have entred and had the land as heire to the father, but by the poſſeſſion of the brother, ſhe being of the whole blood, is made heire.
But in dignities where no poſſeſſion can be had, but ſuch as deſcendeth to a man and his heires,186 as in Dukes, Earles, Barons, &c. there can be no poſſeſſion of the brother to make the ſiſter inherit, but the younger brother being heire to the father ſhall inherit the dignity inherent to the blood as heire to him was firſt created noble, Coke ibid.
And as Ploydon ſaith, there is a great difference betweene lands in fee-ſimple and lands tailed, in regard of poſſeſſion, for the poſſeſſion of a brother of an eſtate taile as heire to his father, ſhall not make the ſiſter to be heire, but it ſhall deſcend to the younger ſon of the halfe venter, for he ought to have it, per formam doni, Ployd. f. 57. a.
And if a Baſtard eigne abare in fee-ſimple land after the death of the father, and dieth ſeiſed without interruption, and his iſſue enter, he ſhall hold it, and the right of the mulier puiſne and his heires, are bound for ever, Ployd. ibidem.
So if a woman ſeiſed in fee, conſent to a raviſhor, and the daughter which is proxima de ſanguine next of blood doth enter, there the ſon after borne ſhall not take away the title and poſſeſſion of the daughter. So where a 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, and187 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 of188 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 of189 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.
190And if a common perſon doe by deed 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,191 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 their192 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 lineall193 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 to tender him the money, and the other ſhifteth away to prevent him, it ſeemeth in this caſe he ſhall be excuſed, becauſe he hath done his endeavour, 8. E. 4. 1. by Catesby.
One was indited quod burglariter fregit & intravit eccleſiam nocte ad depraedandum bona parochianorum in eadem exiſtentia, and good, though he took nothing away, for his will was to have taken, Dier. f. 99 and 58.
A man giveth a juror money to embrace him, though the verdict paſs againſt him, he ſhall be puniſhed for this, 28. H. 6. 12.
A man carrieth his ſick father into a croft, whereby he dyeth, it is felony. An Harlot hid her child with leaves in a thicket, and a Kite ſtriketh it and killeth it, it is felony.
A Bull, Beare, or Dog, accuſtomed to doe hurt, of which the maſter and owner well knowing, doth not tie him up but ſuffereth him to goe at large, and being ſo at large he killeth a man, this is held by Fitzherbert to be felony in the owner of the Beaſt, for thereby the owner ſeemeth to have a will to kill vide Wilſon, office of Coroner f. 11.
And by the civill law, if a man be bitten of another mans dog, the owner of the dog is chargeable194 unto him that is hurt, becauſe he did not tie up his dog, and muſle him, Fulb. Pand. f. 76. For it is a rule in the civill law, voluntatem pro facto reputari, A wife after the death of her husband, being a copy-holder came into the Court, and challenged her right of Frank-bank, and prayed to be admitted, but the ſteward refuſed to admit her, yet was it adjudged an admittance in law. So if a tenant alien and the feoffee tendreth his ſervices and giveth a fine, and the Lord refuſeth, the Lord ſhall be compelled to avow upon him, and ſo continuall claime amounteth to an entry, Huttons rep. f. 18.
And therefore the deniall to doe any thing is a breach of covenant, as if a man be bound to doe an act when I requeſt him, and I doe requeſt him, and he will not doe it, he hath forfeited his band, 15. E. 4. 21. 34. H. 8. 23.
Exitus plerumque in maleficiis ſpectatur, non voluntas, the act, and not the will, in evill facts is reſpected and conſidered, though in ancient times, the will was ſo materiall in felonious attempts, that it was taken for the fact it ſelfe, and ſo adjudged, as one intending the death of another man, woundeth him ſo grievouſly that he leaveth him for dead, and afterward flyeth, and the man wounded revived, it was then adjudged to be felony, in ſo much as his will appeared to have killed him, 1. E. 3. with which Bractons ſaying accordeth, in maleficiis ſpectatur voluntas & non exitus, but this law is not now in force, for he muſt be dead indeed before it be adjudged felony, and though the will be wanting the evill deed is alway cenſured for felony.
As if I hurt another, onely with an intention to beat him and he dieth, it is felony. So upon the malicious words of a woman two men fought, and the one killed the other, the woman in this caſe was arraigned for the death of the ſlaine man.
Three men goe together to diffame one, and one of them killeth a man, the other two are principalls, though they had no ſuch will and intention.
195Non efficit conatus, niſi ſequatur effectus, & non efficit affectus niſi ſequatur effectus, Coke l. 11. f. 98. b. A conation and an affection hurteth not, unleſs the Act and effect enſue.
As thoſe who have Offices of truſt and confidences, ſhall not forfeit them by conations and intentions to doe Acts, although they declare them by expreſs words, unleſs the Act it ſelfe enſue.
As if one who hath the cuſtody of a Park, ſhall ſay that hee will kill the game in his cuſtody, or that hee will cut downe the trees in the Park, yet doth hee neither kill the game, or cut downe the trees, that is no forfeiture, & ſic de ſimilibus, for in all ſuch caſes there ought to be ſuch a fact or a negligence which amounteth to as much, to wit, as to the deſtruction of the game.
If a Biſhop, Arch-Deacon, or Parſon, &c, abateth all the trees, it is a good cauſe of deprivation, 9. E. 4. 34. If a Prior make dilapidation, it is a good cauſe to deprive him, 29. E. 3. 16. 20. H. 6. 36. But if it be but a conation or enterpriſe without any Act done, in none of theſe caſes, it is cauſe of deprivation, for in theſe caſes voluntas non reputabitur pro facto, the will ſhall not be reputed for the deed.
So a conation or an enterpriſe cannot be the cauſe of the disfranchiſement of a Citizen or Burgeſſe, for he may repent before the execution of it, and then no prejudice will enſue, but the matter which ſhall be the cauſe of a disfranchiſement muſt be an Act or a deed againſt the truſt and duty of his freedome, or to the prejudice of the publike good of the City or Burrough, vide ibidem plura, in James Baggs caſe.
Affectus punitur licet non ſequatur effectus, Coke l. 9. f. 56. 57. in the Poulters caſe, The affection or will to doe a thing is puniſhed, though the effect followeth not.
Though a Writ of conſpiracy doth not lie, unleſs that the party be indited, & legitimo modo acquietatus, for ſo are the words of the writ, yet falſe confederacy196 among diverſe perſons ſhall be puniſhed, though that nothing was put in ure, as 27. Aſs. Pl. 44. Two were indited of confederacy, either of them to maintaine the other, though the matter was true or falſe, and though nothing was ſuppoſed to be put in ure, yet the parties were put to anſwer to it, for that ſuch a thing is forbidden by the law.
And in the next Article of the ſame book, enquiry ſhall be made of conſpirators and confederators, which confederate among themſelves &c. falſely to endite and acquit, and of the manner of their alliance, and betweene whom, which proveth that confederation to endite, and acquit, is puniſhable by the law though that nothing was executed. And it is holden 19. R. 2. title briefe 726. A man ſhall have a writ of confederacy, though as they do nothing but confederate together, and ſhall recover damages and may be indited for it alſo. Alſo the uſuall commiſſion of Oyer and Terminer giveth power to the Commiſſioners, to enquire de omnibus coadunationibu•, confederationibus, & falſis alligantiis & coadunatio is an uniting them together, confederation is a combination between them, and falſa alligantia is a falſe alliance one with another by obligation or promiſe, to execute any unlawfull Act, which the law puniſheth before any fact is executed, to the end, to prevent the unlawfull act, quia quando aliquid prohibetur, prohibetur & illud per quod pervenitur ad illud for when any thing is forbidden, that alſo is forbidden, by which 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 plu•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 maketh197 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 forejudge 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 being198 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 as199 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 the200 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 words contrary to the ſimple intent, as Tully ſaith in his Offices is calumnia quaedam & ninis callida & malitioſa Juris interpretatio, ex quo illud, ſummum jus ſumma injuria, a kind of a calumny and malitious interpretation of the law, from whence that ſaying proceeded, the rigor of right is the extremity of injury.
As he putteth the example of one had made a truce for 130. daies with his enemy, and in the night he plundered and depopulated his poſſeſſions, becauſe he ſaid the truce was for daies, and not for the nights, which Cicero accounteth meere injury and injuſtice, and admoniſheth men to avoid the like interpretation of the law, and to obſerve the intent of the words, and certainly words are but teſtimonialls of the intent, and therefore Ployd. f. 107. b. It is ſaid, it is the offices of Judges to take and expound the words, as the common people doe uſe them, to expreſs their intent according to their intent: As a Leaſe was made for life, and that after his deceaſe the tenements redibunt to a ſtranger, it ſhall be taken as a remanebunt becauſe to that purpoſe it was there uſed, and therefore by 18. E. 3. f. 28. It ſhall be taken by way of remainder. So a leaſe for life, the reverſion to a ſtranger ſhall be taken as a remainder, for the reaſon aboveſaid, 30. M. 1. ante 157. vide ibidem plura, in Hills caſe.
And ſo Ployd. f. 291. a. Where a covenant cannot be performed according to the words, it ſhall be performed according to the intent as neere as may bee, as in the caſe of Littleton, where a man maketh a feoffment upon condition, that the feoffee ſhall make an eſtate in ſpeciall taile to the201 Feoffor, and his wife, and the heires of their bodies, if the Baron dieth before the eſtate made, the eſtate ſhall be made as neere to the condition as may be, to wit, to the feme for life, without impeachment of waſt, the remainder to the iſſues in taile, according to the firſt limitation, and if the feme be dead, then the feoffee ought to give the lands to the iſſues and the heires of the bodie of his father and his mother engendred.
If the words be performed, and not the intent, the agreement is not performed, Ployd. f. 291. b. according to the rule of the civill law, leges non ex verbis ſed ex mente ſunt intelligendae, lawes are not to be underſtood and conſtrued by the words, but by ſenſe and meaning of the parties, as where the Defendant was obliged upon condition, that if his feoffees of his Mannor of W. ſhould grant to the Plaintiff an annuall rent of forty ſhillings out of the ſaid Mannor, that then &c. and he had three feoffees, and two of them granted to the Plaintiff the rent: There the words of the condition were performed, for the feoffees had granted the rent, and yet he had not performed the condition, for all the Juſtices there held, that all the feoffees ought to have granted the rent, and ſo it ſhould be ſure, for there the third might have the land by ſurvivor, and he might avoid the rent, and alſo more then two parts of the Mannor were not charged with the rent, and ſo the intent is not performed though the words be M. 22. H. 6. f. 10.
So if a man be bound to enfeoff me of the Mannor of D. and he maketh a feoffment ro another of parcell of it, and then enfeoffeth me of the Mannor, he hath performed the words, but yet he hath not performed the intent, which was, that I ſhould have had all the Mannor as it then was, H. 3. H. 7. 4.
So a remainder was limited to B. Si ipſe vellet in-habitare & reſidens eſſe, if he would dwell and bee reſident on the land during the terme, there it is202 taken that if he was reſident one week during the terme, he had performed the words of the condition but not the intent, for the intent was, that hee ſhould be reſident all the terme, 4. E. 6. ante 23.
So an Abbot was Parſon Emparſonee of a time &c. and he had annuity for the time, of which no memory runneth in right of the Parſonage, and he as Abbot without naming himſelfe Parſon, brought a Writ of annuity, and counteth upon a preſcription in him, and his predeceſſors Abbots, and the preſcription traverſed and found for the Plaintiff, there every word of the Verdict is true, and yet attaint lay againſt the Jury, becauſe he brought the Writ in the name of the Abbey and ſo claimed the annuity, whereas he was not ſeiſed by that forme, but as Parſon, and for that he did not claime as Parſon, they ought not to have found the iſſue with him, and ſo the words of the Verdict and the intent of the Verdict did not agree in one, M. 10. E. 4. f. 16. Ibidem, in Chapmans caſe.
It is not requiſite alwaies that the agreement ſhall be performed according to words, becauſe the intent is performed, which is the principall point of the agreement, Ployd. f. 295. a. b As if a man be bound to pay a leſſer ſumme upon a day certaine, if I pay the ſumme before the day, the condition is performed, H. 10. H. 7. 24. So if the condition be in a Mortgage, that I pay the money at ſuch a place, if I ſhall pay it at another place, and the Mortgage accept of it, it is well enough, for the value is the effect.
So if a feoffment be made, upon condition, that if the feoffee doe not pay the Feoffor ſuch a ſumme at ſuch a day, that then the feoffor ſhall enter; If the feoffee before the day make a feoffment over, and at the day doth not pay the ſumme, there the ſecond feoffee at the day may tender and pay the ſumme, though the agreement was no other but that the203 firſt feoffee ſhall pay the ſumme, Litt. vide ib. plura.
If a man make a feoffment, on condition to enfeoff two in fee at ſuch a time, and before the time one dieth, the feoffment ought to be made to the ſurvivor and his heires onely, for the intent which appeareth in the condition, Ployd. f. 345. 4. H. 7. f. 127.
Every one who groundeth an Act with diſcretion, hath an intention in the inception, and neither beginneth any thing but to ſome end, and in the progreſſion hath the ſame intent, and ſo in the conſummation; ſo as the ſame intention is the cauſe of every part, and therefore the intention is principally reſpected in all humane acts, and eſpecially in thoſe which concerne the diſpoſition of our eſtates, and in feoffments and grants: A feoffment by deed, of a Mannor with an advowſon appendant, and no livery made, the advowſon paſſeth not, yet an advowſon may paſs without livery, but the intention and the meaning was, that the Mannor and it ſhould paſs together, Finch Nomot. 58.
A bargaine and ſale of Land, and a reverſion by deed not enrolled, the reverſion paſſeth 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.
204Though 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 teſtatio205 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 their206 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 the Counſellor what he ſhould write, who took paper and ink, and writ notes breifly of his ſaid will, and every legacy that he had then declared, and alſo the names of the Executors, and went home to his houſe, and immediatly with his own hands did write the laſt will and teſtament of B. and when he had written it, he came againe to the houſe of the ſaid B. with the ſaid will to read it unto the ſaid B.207 but then the ſaid B. was dead, and therefore the Counſellor delivered the ſaid will to the Executor of B. who proved the ſame, and after the wife of B. did enter into the tenements deviſed to her by the ſaid will, and the heire entred upon her, and upon the generall iſſue, it was the cleere opinion of all the Juſtices, that it was a good will in writing, according to the Statute of 32. H. 8. And as in Feoffments, Grants, Uſes, and Wills, the intent ſhall be obſerved, ſo every Statute ought to be taken according to the intent of thoſe that made them, where the words are doubtfull, & not uncertaine, according to the rehearſall of the Statute, Ployd. f. 10. a. b.
As in 4. E. 4. there was an information in the Exchequer, that one ſhipped certain ſacks of Wooll, and had not found ſureties according to the Statute of 14, E. 3. C. ultimo, to wit, to bring plate of Silver of two marks for every ſack of Wooll, and to take two marks of coyne againe for the bullion, and there were two Statutes alledged to bar the ſaid finding of ſureties, to wit, 36. E. 3. C. 11. Where it is recited, that the Commons of the Realme had granted to the King a great ſubſidy of every ſack of Wooll for three yeares, in conſideration of which the King by the ſame Statute granted, that after three years nothing ſhall be taken of the Commons, but onely the ancient cuſtome of halfe a marke of every ſack, &c. and that alſo by the Statute of 45. E. 3. c. 4. It was eſtabliſhed, that no impoſition, or charge ſhall be put on Woolls, other then the cuſtome and ſubſidy granted to the King without aſſent of Parliament, and if any were, it ſhould be repealed, and holden for nothing, but it was adjudged that the two laſt Statutes were not to diſcharge the bullion, but onely the great ſubſidies, and great charges upon Wools after the three years, and the intents of the makers of the two laſt Statutes were not to diſcharge the bullion, for all things within the generall words ſhall not be taken208 as the purview of the Statute, but ſuch thing as the makers of the Statutes meant, ſo as the intent of the makers is judged by the words, and ſhall abridge the generalty of them.
So the Statute of Waſt is, if any one make waſt in Land, which he holdeth ex dimiſſione, &c by leaſe, yet if his eſtate be ex legatione, by legacy, he ſhall be puniſhed by equity, and the intent of the makers of the act. So the Statute of Quia emptores terrarum, reſtraineth men to make tenures of themſelves, yet there where the words are, that every one ſhall hold of the Lord Paramount, ſecundum quantitatem terrarum, according to the quantity of their Lands, it is taken and ought to be underſtood, ſecundum valorem ter•a, according to the value of the Lands, vide ibidem plura.
And Ployd. f. 57. b. It is an erudition in our Law that where the termes, and letter of any Statute be obſcure, and difficult to be conceived, there we ought to reſort to the intent of the makers of the Statute, vide ibidem plura.
Where the intent appeareth the Law will include words, which are not apt, from their proper and common ſignification, to the intent, Ployd. 154. a. As if the Diſſeiſee agree with the heire of the Diſſeiſor, who is by diſcent to confirme his eſtate, and if he make them a Deed by theſe words, Dedi & conceſſi, the Land to him and his heirs, that cannot enure in his naturall ſenſe, for the nature of a dedi is to give one a thing which he had not before, but becauſe it cannot enure, ſo it ſhall enure as a confirmation, and ſo inclineth the word out of his proper ſignification to the intent and ſo 17. E. 3. f. 8. It is holden that a Mannor may paſſe by name of a fee de chivaler, for if the intent was that the Mannor ſhall paſſe, the Law ſhall adjudge the better, to incline the word (de chivaler) to it, and in 10. E. 4. f. 4. Paſche, it was held by the better opinion, that a man may plead a demiſe to him of Land for a yeare, by the words, to licence him to occupy the Land for209 a yeare, and ſo may one apply a word out of his apt ſignification to another ſignification, in performance of the intent of the matter.
And Ployd. f. 142. Words ſhall be conſtrued according to the minds of the parties, where they are directed to a ſpeciall intent, and thoſe which doe imply and containe the intent of the parties to be conditionall, ſhall be ſufficient to make a condition as well as the uſuall words. And therefore if a man make a Feoffment, ad ſolvendum, to pay 20•. at ſuch a time, it is a condition, for the matter ſheweth that the intent of the Feoffor was to have twenty ſhillings for the Land. So if a man maketh a Feoffment in fee to one, to inſtruct his Son in ſuch an Art, it is a condition, becauſe the words purport ſuch an intent, and yet they are not uſuall words, vide ibidem plura, in Brownings caſe.
But Ployd. f. 162. b. Exception.Though it be the rule of Bract. that words ought to be inclined to the intent, yet non eſtregula quin fallat, for one ought to have words apt for the meaning, or elſe the meaning will be void, for if a man will bend the Law to the intent of the party, rather then the intent of the party to the Law, it would maintaine barbarouſneſſe and ignorance, to the decay of all erudition, and diligence, for if a man knew that what words ſoever they are, his meaning ſhould onely be thought on, he would be more negligent for words, and then ſuch an incertainty would riſe to diſcuſſe what was the meaning, that he would bring in great confuſion, and therefore the phraſes of ſpeech commonly declare the intents of perſons, as if I give you a cup of Wine you ſhall not have the cup, but if I give you an Hogſhead of Wine, you ſhall have the Hogſhead, becauſe the phraſe ſheweth the intent, Ployd. f. 86. a. 27. H. 8 27.
And therefore we ſhall ſee in many caſes, that the intent ſhall be deſtroyed, where it accordeth not with the Law, as 9. H. 6. f. 45. An Abbot and Covent by deed indented, gave a croft to W. in fee, and for210 that guift and grant, the ſaid William, renunciavit toti communia, quam habere conſuevit averiorum ſuerum cum averijs Abbot & Conventus renounceth all the Common which he hath uſed to have of his Cattle, with the Cattle of the Abbot and Covent, and that releaſe of Common was there taken void, becauſe he did not ſhew to whom he renounced the common, yet there was a full intent, for he had common in the Land of the Abbots, and he had intent to releaſe it to him, but for the incertainty it was void. And a Leaſe was made to Baron and Feme, and the reverſion of the Land that the Baron held was granted, and it was held void, notwithſtanding the intent, becauſe it miſſed of the certainty of the particular eſtate, H. 13. E. 3. Fitz. grants 63. And ſo where there were Lord and tenant of three acres, and the Lord granted the ſigniory which he had out of one Acre, it was held void in 17. E. 3. notwithſtanding the intent, becauſe his intent did not agree with Law, and ſo where a man holdeth of one by Caſtle garder, Homage, and Fealty, and he granteth to another all his ſervices, it was held in 31. E. 1. that the Caſtle-garder cannot paſſe, becauſe he did not grant ſuch a Caſtle, but reſerved it, and therefore he who hath not the Caſtle cannot have the Caſtle guarder, & ſo his intent in granting al the ſervices, could not make all to paſſe, becauſe it was not according to Law, and ſo the Law ruleth the intent, and the intent not the Law, Ployd. ibidem, in Throckmortons caſe.
Coke l. 1. f. 84. b. A man giveth Land to M. and 1. his Siſters, and to the heirs of the bodies of them lawfully begotten (by which they had a joynt eſtate for life, and ſeverall inheritances) and the Donor intending that neither of them ſhould break the Joynture, but the Survivor ſhould have all per jus accreſcendi, added this clauſe, ſub hac forma, that ſhee that ſhould longeſt live ſhould have all the Land, but becauſe his intent is contrary to Law, for this cauſe, if the Joynture be ſevered by fine, the211 Survivor ſhall not have the part ſo ſevered by the ſaid clauſe, which he hath inſerted of his conceit, and his own imagination, contrary to Law and reaſon, ibidem.
But in Wills the intent ſhall be obſerved, and onely thought of, becauſe the Teſtator had no time to order all things according to Law by preſumption, but is ſuddenly made oftentimes, and ſo the diverſity, Ployd. f. 162. b. And therefore Ploy. f. 414. a. The intent in deviſes maketh eſtates to paſſe contrary to the rules of the common Law in deeds and other gifts. As if I deviſe Land to one A. for life, whereas there is not any ſuch, the remainder in fee, he in the remainder ſhall take the Land, though there be no eſtate precedent.
And 34. E. 3. one had iſſue a Son, and Daughter, and deviſeth Land deviſable to one for life, upon condition that if the Son diſturbe tenant for life, or his Executors of their Adminiſtration, that then the Land ſhall remaine to the Daughter, and dyeth; the Daughter after the death of the tenant for life, bringeth a Formedon in remainder againſt the ſon, & alledgeth that the tenant had diſturbed the Tenant for life, and the Executors, and the Tenant traverſed it, & upon it iſſue joyned, and the condition took the fee out of the Son, and put in the Daughter by allowance in Law, in performance of the intent of the Deviſee, though the remainder did not veſt when the firſt eſtate took effect Ployd. ibidem.
Coke com. f. 322. a. b. If a man leaſe Lands deviſable for life, &c. the reverſion by his teſtament in fee, &c. and dyeth, and then the Tenant maketh waſt, the Deviſee ſhall have a writ of Waſt, although the Tenant never attorned, becauſe the will of the Deviſor, made by his will, ſhall be performed according to the intent of the Deviſor, and if the Tenant will never attorne, then it ſhall never be performed, and therefore he ſhall have an action of waſt, or diſtraine without Attornement, Littleton, for it is a maxime of the common Law, ultima voluntas teſtatoris212 eſt perimplenda ſecundum veram intentionem ſufam, Coke ibidem, for if a man deviſe his Tenements to another by teſtament, Habendum ſibi in perpetuum, and dyeth, and the Deviſee entreth, he hath a Fee-ſimple, cauſa qua ſupra, and yet if a feoffment had been made to him by the Deviſor in his life, of the ſame Tenements, Habendum ſibi in perpetuum, and livery and ſeiſin upon it made, he ſhall have an eſtate onely for terme of his life, Littleton, Ibidem.
Coke com. f. 9. b. Though by the common Law an eſtate of inheritance may not paſſe without theſe words, Heires, yet in deviſe it may, as if a man deviſe twenty acres to another, and that he ſhall pay to the Executors for the ſame ten pound, he hath a Fee-ſimple by the intent of the Deviſor, albeit it be not the value of the Land, 21. E. 3 16. So if a man deviſe Lands to give or to ſell, or in feodo ſimplici, or to him or his Aſſignes for ever, in all theſe caſes a Fee ſimple doth paſſe by the intent of the Deviſor, but if the deviſe be to a man, and his Aſſignes, without ſaying for ever, the deviſee hath but an eſtate for life, if I deviſe Land to one, & ſanguini ſuo, it is a Fee ſimple, but if it be ſemini ſuo, it is an eſtate tayle, ibidem.
Exception.Coke. l. 1. f. 85. 86. in C•rbets caſe. It was ruled by all the Juſtices, that ſuch an eſtate which cannot by the rules of the common Law be conveyed, by act executed in his life by advice of counſell learned in the Law, ſuch an eſtate cannot be deviſed by the will of man, who is intended in Law to be in ops conſilij, as if I deviſe Lands to one by will in perpetuum, he hath a fee, for ſuch an eſtate may be conveyed by eſtate executed, but if I deviſe further, that if the Deviſee doth ſuch an act, that then another ſhall have his Lands to him and his Heires, that is void, becauſe ſuch limitation, if it was by act executed, is void, for as Dyer f. 33. pl. 12. A man cannot deviſe an eſtate in fee to one, and if he doe not ſuch an act, his eſtate ſhall ceaſe, and another213 have it, for when he hath diſpoſed the eſtate in fee, he hath not power in the ſame will to deviſe it to another, and f. 4. pl. 7. when the intent of man, who maketh a teſtament doth not agree with the Law, the intent ſhall be taken void, as if a man deviſe his Land to H. in fee, and that if he dye without heir, that M. ſhall have the Land, this deviſe is void, becauſe one Fee-ſimple cannot depend upon another in law, the ſame law is if the deviſe be to the Abbot of Saint Peter de W. where the foundation is to the Abbot of St. Paul.
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.
Pr•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 the214 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, &215 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 d•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 not216 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. upon a falſe conſideration, the heire ſhall not be received to aver a falſe conſideration againſt his anceſtor, Dier.
Ex nudo pacto non oritur actio, Ployd. 305. a. and 308. b. from a bare contract or promiſe no action riſeth, for it is not much argued by the laws of England, what diverſity is betweene a contract and a promiſe and a gift; for the intent of the law is to have the matter argued, not the termes.
A Nude contract is where a man maketh a bargaine and ſale of his goods or lands without any recompence appointed for it: As if I ſay to you. 217I ſell you all my lands or all my goods, and nothing is aſſigned, that the other ſhall give or pay for it, this is a nude contract, and is void in law, and the vendee cannot bring an action for them, Dr. and Student c. 24.
And a nude promiſe is, when a man promiſeth to give a man certaine mony at ſuch a day, or to do him certaine ſervice, and nothing is aſſigned for them.
As if I promiſe to give you twenty pound to make your houſe anew, there you ſhall have no action againſt me for the 20 l. becauſe it is a nude promiſe, as it is affirmed by Townſend, T. 17. E. 4. Ployd. f. 308. b. So if a Carpenter by word covenanteth and undertaketh to make a new houſe, and he doth not, and for not making it, the Plaintiff bringeth an action of covenant againſt the Carpenter, and it doth not appeare that he had any thing for making of the houſe, it was adjudged in 11 H. 4. f. 33. that the Plaintiff ſhould not take any thing by his writ, Ployd. 309. a.
And if I promiſe to another to keep his goods ſafely till ſuch a time, and after I refuſe to take them, no action lieth againſt me, but if I take them, and after they be loſt or impaired through my negligent keeping, an Action lieth, Doctor and Stud. c. 24.
But otherwiſe it is, if he to whom the promiſe is made, have a charge by reaſon of the promiſe, which he hath alſo performed, then in that caſe hee ſhall have an Action for that thing is promiſed.
As if a man give land in Frankal-moine, they are bound to make prayers to God for him, and in conſideration of ſuch prayers, he is bound to pay to the cheife Lord, all the rents and ſervices iſſuing out of that land, Lit. a. Frankal.
And in 17. E. 4. 5. It is taken by diverſe, that if I promiſe a Surgeon a certaine ſumme to cure ſuch a poor man, or if I promiſe to a labourer certaine mony, to repaire ſuch a way which is in the high way, that he ſhall have an action of debt for it, for it is218 a thing of charity, and I merit thankes of them for it, and therefore ſhall not be called, Nudum pactum, Ployd. f. 306. a.
If I contract with another, that if he will marry my daughter, that I will give him 20 l. in this caſe if he take her to wife he ſhall have an action of debt for the 20 l. 22. E. l. Aſſi. Pl. 70. by Thorp. and yet I have nothing for it, and if a man hath no regard to nature, it ſhall be nudum pactum, but becauſe my daughter is advanced by it, that is a good conſideration to me, Ployd. f. 305. a. So Dr. and Stud. c. 24. f. 104. It is a good promiſe, becauſe he hath quid pro quo, the preferement of his Daughter for his money.
But if a man promiſe to another 20 l. with his daughter in marriage, if he marry the daughter, and the money be not paid, he ſhall not have an action of debt or an action of the caſe at the common law, but he muſt ſue for his money in the ſpirituall Court, for here is no good forme of contract, F. n. b. f. 44. a. And as Bracton ſaith, matrimonium eſt principale & ejuſdem juris id eſt juriſdictionis e••e debet acceſſorium, matrimony is the principall, and the acceſſory ought to be of the ſame juriſdiction.
Gardiner brought an aſſumpſit, and declared that the Defendant in conſideration that he was indebted to the Plaintiff in 10 l. for paſturing, and feeding of certaine beaſts in the Plaintiffs grounds, and for wheat and other Marchandiſes had and received by the ſaid defendant, did aſſume to pay to the ſaid Plaintiff the debt that he had paid. Vpon iſſue, non-aſſumpſit was found for the Plaintiff, and upon a Writ of error in the Exchequor-chamber, that there muſt be ſome certaine cauſe of the debt aſſigned, for it is not ſufficient to ſay generally, he was indebted, for it might be for rents upon leaſes, or for debts upon ſpecialties, but it was adjudged certaine enough, and required not ſo much certainty as an action of debt upon a contract, Hob. rep. f. 7.
219Wolaſtone brought an aſſumpſit againſt W. and declared, that whereas W. promiſed him 30 l. in conſideration that the Plaintiff on the twentieth of Auguſt 1610. had given day to the ſaid defendant for the payment of the ſame money untill the ninth of October following, the Defendant did aſſume to pay him the ſame ninth day, and upon iſſue non-aſſumpſit it was found for the Plaintiff, and damages given, Hob. f. 26. Wolaſtons caſe vide ibidem.
L. brought an aſſumpſit againſt B. and declared that whereas the defendant had felloniouſly ſlaine one P. M. the defendant afterwards required the Plaintiff to labour and doe his endeavour to obtaine his pardon from the King, whereupon the Plaintiff upon the ſame requeſt did labour &c. to obtaine pardon for the ſaid defendant, and afterwards fi. &c. in conſideration of the Premiſſes, the defendant did promiſe to the Plaintiff to give him a hundred pounds, and that he had not &c. upon non-aſſumpſit, it is found for the Plaintiff 100 l. ibidem f. 147. vide ibid. plura.
B. bringeth an action of the caſe againſt C. executor of Reade, and counteth that whereas he had in M. terme 14. Jac. preſented an attachment of priviledge againſt Reade, rerurn. in H. terme, the teſtator knowing of it, in conſideration that at his requeſt the Plaintiff would forbeare to proſecute the ſaid writ, did promiſe to pay him 50 l. and then averred &c. and after verdict for the Plaintiff, and exceptions in arreſt of judgement, the Court gave ſentence. Bedwels caſe, vide ibidem plura.
A promiſe made for a thing paſt is void, as if I promiſe one ten pounds becauſe he hath builded me an houſe, an action lyeth not there, and if I promiſe to give another 10 l. in recompence of ſuch a treſpaſs that he hath done him, an action lieth not againſt him, & the reaſon is becauſe a contract properly is, where a man for his goods ſhal have by the aſſent of the other party certaine goods or ſome other profit at the time of the contract, or after, but if the thing220 be promiſed fot a cauſe that is paſt by way of a recompence, 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.
221As 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 ſhall222 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 not223 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
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, if he be an honeſt man, Swimb. f. 210.
It is an obſervation of a Divine, that oathes ex officio had their birth from Caiphas, Math. 26. who who firſt impoſed it on our Saviour in the name of the living God, ſaying, I adjure or charge thee in the name of the living God, that thou telleſt us whither thou be'ſt Chriſt the Son of the living God. And Mr. Pryn ſaith, that Cardinall Woolſy the higheſt Prieſt in England was the firſt that invented oathes ex officio in England, and that they were much inveighed againſt by Latimer in his Sermons, and condemned by the expreſſe words of the petition of right, providing againſt ſuch oathes, Prin. Vind. f. 42.
Impotentia excuſat legem, impotency excuſeth the Law, Coke com. f. 29. a. The Law tendreth the224 weakneſſes, and debilities of others, execuſeth their un-abilities, ultra poſſe non eſt eſſe, becauſe no man is able to doe more then he can do.
As if a man dyeth ſeiſed of Lands in fee-ſimple, &c. and theſe Lands deſcend to his Daughter, and ſhee taketh an husband, and hath iſſue, and dyerh before any entry, the husband ſhall not be tenant by courteſy, becauſe it was in the power of the husband to have entred, but if a man be ſeiſed of an advowſon, or a rent in f•e, and hath iſſue a daughter who is married and hath iſſue, and dyeth ſeiſed, the wife before the rent became due, or the Church became void, dyeth, he ſhall be Tenant by courteſy becauſe he could by no induſtry enter, or attaine to any other ſeiſin, then a ſeiſin in Law, or bring it to an actuall ſeiſin. And f. 258. b Though an Hermite or an Anachorite, be ſhut up himſelf, ſo as by his order he is not to come out in perſon, yet to avoid a deſcent he may command one to make claim, and ſuch a recluſe may allwayes appeare by an Attorney in ſuch caſes, where others muſt appeare in proper perſon, and f. 263. b. An Abbot of a Monaſtery dyeth, and during the vacation, one wrongfully entreth into a certaine parcell of the Land of the Monaſtery, claiming the Land to him and his heirs, and dyeth ſeiſed, and the Land deſcendeth to the heire, and then one is elected Abbot, the Abbot may enter upon the heire, for by the death of the Abbot no perſon is able to make continuall claime, and therefore a deſcent in that kind ſhall not prejudice the ſucceſſion.
Coke l. 1. f. 98. a. If the Leſſee Covenant to leave wood in the ſame plight, the wood was at the time of the leaſe, and afterwards the trees be ſub-verted by tempeſt, hs is diſcharged of his covenant, by reaſon of his impotency, and l. 4. f. 11. a. If the Lord releaſe to the Tenant ſo long as I. S. hath heire of his body, and ſixty years paſſe, and then I. S. dyeth without heire of his body, in this caſe though the ſixty years be paſſed, yet the Lord225 may diſtraine, for it was impoſſible that ſhe ſhould attaine to any ſeiſin within that time, and therefore the act of limitation made in 32. H. 8. doth not extend to ſuch rent or ſervice, that by common poſſibility could not happen or become due within ſixty years, and ſo if Land holden by Homage, and Fealty, be conveyed to a Mayor and Commonalty, &c. in this caſe they cannot doe their Homage and Fealty, yet though they have enjoyed the Land above ſixty years, if they alien the Land, the Lord may diſtraine for Homage and Fealty, 33 H 8. Br. Tit. Fealty, 15. vide ibidem pluta, in Bevills caſe, and lib. 6. f. 21. b. in Butlers caſe, It was reſolved that legall impriſonment without Covin is a good excuſe of non-reſidency in any Parſon by reaſon of his impotency.
Quod remedio deſtituitur, ipſa revalet, ſi culpa ab ſit, the thing which is deſtitute of remedy, availeth in the matter it ſelfe, if there be no fault or laches in the party, Coke. l. 6. f. 68. a. As if a man be ſeiſed of a manner, part of which is in leaſe for life, and part in leaſe for yeares, and levieth a f•ne to A. to the uſe of B. in tail, with diverſe remainders over, in this caſe B. ſhall avow for rent, or have an Action of Waſt without any Attornement, for when the reverſion is ſetled in any one in judgement of Law, and he hath no meanes to compell the tenant to attorne, and no laches or fault is in him, there he ſhall avow, or have an Action of Waſt without Attornment: As if the Lord in Mortmaine, or if a villaine claimeth a reverſion, by this claime the Law veſteth thiS reverſion in him, and he hath no meanes to compell the tenant to attorne, and therefore he ſhall avow, or have an Action of Waſt without Attornement, the ſame Law is of Letters Patents, and of the deviſe of a reverſion, for in all thoſe caſes culpa abeſt, there is no fault, 9. H. 6. vide ibidem plura, in Sir Moile Finches caſe.
And Coke l. 8. f. 172. b. in Hales caſe. If the heire at full age tender his livery, and dyeth within226 three months before he hath accompliſhed it, ſo as the making of his homage, or ſuing out of his livery, without default in him, is become impoſſible by the act of God, he ſhall have as much advantage by his tender, as if he had made homage, or ſued out his livery, for impotency in this caſe excuſeth the Law, and in the judgement of the Law, the intereſt of the King by the ſaid limitation is determined, as if the Lord had taken homage of the heire, when he made his tender, vide ibidem plura.
Coke l. 10. f. 139. b. If tenant for life, or for years, doth not repaire a wall of dirt, ſo as by his default, the Land is ſurrounded, and becometh unprofitable, that is Waſt, but if the Land be ſurrounded by the extraordinary rage and violence of the Sea, without any default in him, that is not Waſt, no more then if an houſe was burnt by lightning, or ſubverted by the rage of the wind or tempeſt, without default of the Leſſee, for impotency excuſeth the party, vide ibidem plura in Kighleys caſe.
So as it is regularly true that the Law tendreth the infirmities of unable perſons, and excuſeth their impoſſibilities, as of men illiterate, out of the Realme, in Priſon, Infants, Idiots, out of their ſound minde, as alſo of blind and deafe, dumbe, and blind.
If a man illiterate, be bound to make a deed, he is not bound to ſeale, or deliver any writing that ſhall be tendred unto him, and if it be Latine, or other Language, which he underſtandeth not, he may demand that one read it, and expound it unto him, and if none be there preſent to read, and expound it, the party may refuſe to deliver it, for his ignorance excuſeth him, Coke l. 2. f. 3. Manſers caſe.
And for that reaſon if the Deede be read unto him, in other words then are contained within 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 who227 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 an228 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.
229The 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 nec•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 be230 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.
231An 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 ſhall232 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,233 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, ſ•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,234 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 i•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 d•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 commit235 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•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 not236 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 ou•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.