From the Predicable.

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 the [Page 18] 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 a [Page 19] 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 by [Page 20] 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 those [Page 21] 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 ought [Page 22] 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, [Page 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, and [Page 24] 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, the [Page 25] Lessee hath not quid pro quo, nor any thing for which he should pay his Rent, and in that case he may plead that the Lessor non dimisit, Coke Com. ibidem f. 41. b. vide ibidem plura.

If the Conusee of a Fine, before any Attorne­ment, bargaineth and selleth the Signiory to ano­ther, the Bargainee shall not distraine, because the Grantor could not distrain, for no man can transfer more right to another then he himselfe hath, Coke Com. 309. b.

Coke l. 6. f. 57. b. He that hath no seisin in the Land charged cannot give seisin of Rent, vide plura Bredimans; for no man can give that he hath not.

The King pardoneth one for making a bridge, this is onely good for the fine, and he must make up the Bridge, because the Kings Subjects have interest in it, 37. H. 8.4.

Da tua dum tua sunt, post mortem tunc tua non sunt, Ployd. 280. a. when one hath property in goods, the property cannot be in him no longer then he liveth, for after his death the goods belong unto another.

Nemo videtur rem amittere cujus propria non fuit Reg. I. C. no man can loose that of which he hath no property, and therefore in a Replevin if the De­fendant claim property, the Sheriff cannot proceed, for it is a rule in Law, the property ought to be try­ed by writ, and therefore in this case where the try­all is by plaint the Plaintiff may have a writ de pro­prietate probanda directed to the Sheriff to trye the property, and if thereupon it be found for the Plain­tiff, the Sheriff shall make deliverance, Coke Com. f. 145. b. F. n. b. f. 77. If A. endict B. for stealing of Horses, or other goods he must say de bonis, & ca­tallis cujusdam, A. For if there were no property there could be no stealing, or injury, for nemini vim facere videtur, qui suo, & non alieno utitur, Reg. I. c.

Nemo reditum invito domino percipere, & posside­re potest, Coke Com. 303. b. no man can receive, or possesse another mans Rents against the will of the Lord, as if one hold of me by Rent, which is service [Page 26] 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.

Thirdly, From the Anteprecedents. Aequivocum and Univocum.

AEQuivocum denoteth words of ambiguous, and many significations, which as Boetius, signifies nothing, nisi ad quasque res secundum voluntatem significantis applicetur, unlesse they be applyed to the thing according to the will of him that declareth, or expoundeth them, of which the Law taketh no­tice, and giveth these grounds, and maximes,

Nobiliores, & benigniores presumptiones in dubijs, sunt praeferendae, Reg. P. C. And Coke l. 4. f. 13. b. Be­nignior sententia in rebus generalibus, & dubijs est praeferenda. In doubtfull speeches, and sentences, the more favorable presumption, and opinion is to be perferred. As if one doth charge another that he hath forsworne himselfe, by the Law it is not actionable, for it may be he hath forsworne himself in usuall conversation, but an action is onely main­tainable [Page 27] 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 pro­ferentem [Page 28] 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 should [Page 29] 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 compa­rison [Page 30] 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 certainety [Page 31] 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, they [Page 32] 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 the [Page 33] 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 certainty [Page 34] 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.

Incertainty 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, be­cause [Page 36] 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 pay­ment [Page 37] 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.

Certa 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. [Page 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. [Page 40] So 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 had [Page 41] 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 it [Page 42] 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, yet [Page 43] 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.

Grounds and Maximes proceeding from the Predicaments.

Of the person.

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 by [Page 52] 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, [Page 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 a [Page 54] 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 against [Page 55] 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 selfe [Page 56] 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 rea­son [Page 57] 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.

If 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 of [Page 59] 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. Clerico [Page 60] 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.

From the Post-praedicaments, or as Keker-man, from such termes as are series of the Predicaments, and yet conduce to the ful­ler understanding of them.

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, [Page 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 Law [Page 62] 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, [Page 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 property [Page 64] 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.

If I have a villaine for yeares as executor, and the villaine purchaseth land, the executor entreth, the land shall be to the use of the testator, and as­sets in his hands, because the villaine which was the cause of it was to such use, Ployd. f. 292. a. Chap-mans case.

Causa & origo est materia negotii, Cok l. 1. Shellies case f. 99. b. vide. As if a servant hath an intent to kill his Master, & before the execution of his intent depar­teth out of his service, & being out of his service ex­ecuteth his intent, and killeth him which was his Master, it is petit treason, for the execution respects the originall cause, which was the malice conceived when he was his servant, vide ibidem plura.

I. S. buildeth a shop on the wast of a Mannor of which the Queene was seis'd, the Queen granteth the Mannor to the Earle of Leicester, and he never entreth nor taketh rent, I. S. dieth and his sonne entreth, there is no descent against the patentee, because there was no disseisin against the Queene, Dyer. 266. b.

Yet when the law giveth power and authority to doe any thing,Exception. the law adjudgeth of the thing by the act subsequent not precedent, Coke l. 8. f. 146. b. As the law giveth me power or license to enter into a common Hostlery or Taverne, or to the Lord to distraine, or to the owner of the soile to distrain, for damage feasant, or to him in the reversion to view if wast be made, and to the commoner to en­ter into the land to see his beasts, but if he that entreth into the Hostlery or Tavern maketh trespass, or if the Lord that distraineth for rent, or damage fesant, beat or slay the distress, or if he that en­treth to see wast, breaketh the house, or remaineth there an whole night, or the commoner cut downe trees, in these cases the Law shall judge by act subsequent, that they entred to that purpose, and shall be trespassors from the beginning, for acta exteriora indicant intoriora secreta, the outward acts shew the inward secrets, and [Page 66] with what minde, and with what intent he did en­ter. So if a purveyor take my beasts for the hostle of the King by force of his commission, it is legall, but if he sell them in Market, then the first taking is injurious.

Coke l. 9. f. 11. a. Tenant in taile hath issue two daughters and dieth, and the elder entreth into the whole, and after entry maketh a feoffment with warranty, which is a lineall warranty for the one and collaterall for the other; the law judg­eth by the act subsequent that the entry was not generall for them both, but that it was onely for her selfe, and that it shall be a warranty to com­mence by disseisin for the one moiety.

Quod initio vitiosum est, tractu temporis non conva­lescet, Reg. I. Civ.

Quod initio non valet, tractu temporis non convales­cet, Coke com. f. 35. a.

That which in the beginning is vicious or inva­lid, cannot by tract of time bee made good, or valid, as tenant for life of a carve of land, the re­version to the father in fee, the son and heire ap­parent endoweth his wife of this carve by the as­sent of the father, tenant for life dieth, the husband dieth, this is no good endowment, ex assensu patris, because the father at the time of the assent had but a reversion expectant upon a free-hold, whereof hee could not have endowed his own wife.

Ployd. f. 432. b. A. possessed of an horse, selleth the horse, upon condition that hee shall pay him at Christmas forty shillings for it, and before the said feast he selleth the horse to another, and at the feast the first buyer faileth of payment, whereupon A. reseiseth the horse, yet the second buyer shall not have him, because at the time of the second con­tract A. had no interest nor property, nor possession of the horse, but onely a condition which was not sufficient to make the contract good.

A. seised of Lands in see maketh a lease for twen­ty yeares, rendring rent, to begin presently, and the [Page 67] same day he maketh a Lease to another for the same terme, the second lease is utterly void, so as if the first Lessee surrendreth his terme to the Lessor, or loseth the same by breach of condition, or for­feiteth it by making a feoffment upon entry of the Lessor, the second Lessee shall not have his terme, because the Lessor at the making of the second lease had nothing in him but the reversion, ibi­dem.

A feoffement to the use of the husband for life, the remainder to I. S. the remainder to the wife for her joynture, this is not a joynture to bar dower, be­cause it did not take effect immediately after the death of her husband, Hut. Rep. f. 50.

An infant or a married woman makes a will, and publisheth the same, and afterwards dieth being of full age or sole, notwithstanding this both Wills are void, 10. Eliz. 344. Noy. Max. f. 4.

A lease for life the remainder to the Major and commonalty of B. whereas there is no such, it is void, though the King doth create such a cor­poration during the particular estate, so a remain­der limited to John the son of I. S. having no such, son, and afterwards a son is borne to him whose name is John during the particular estate, it is void Doder.

Que malo inchoata sunt principio, vix bono pera­guntur fine. Those things which have a bad begin­ning can hardly have a good end. Coke. l. 11. f. 78. As a man seised of Lands in fee by deed, upon good consideration granteth the Land af­ter his death to the Queene, her heires and successors, such grant is not made good by the ge­nerall words of the act of 18. Eliz. because it was void in the beginning, and with it accordeth 38. H. 6. f. 33.

The Abbeffe of Sions case, and the Earle of Lei­cesters case, Ployd. f. 4000. a stronger case then it, vide ibidem plura, Magdalen Colledges case, Coke l. 4. f. 90. a. If a son and heir apparent of a Baron re­teyne [Page 68] 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 de­livereth [Page 69] the release as an escrowl to be delivered to the disseisor as his deed the last day of May, & before that time the disseisor diseiseth him of another acre in D. and after the deed is delivered to the disseisor the last day of May the right which hee hath in the third acre shall not pass, for the beginning, and the intent is to be respected in all acts. So if one have a reversion in fee of two acres which I. S. holdeth for life, and granteth to another the reversion of all the acres that I. S. holdeth for life, and then the grantor purchaseth the reversion of another acre, I. S. holdeth for life, and after I. S. attorneth to the grantee for all the three acres, the third acre shall not pass for the reason abovesaid.

If a man devise the manner of Dale or white acre,Excepton. and have nothing in it at the time of making the Will, and after purchaseth it, there it shall pass to the devisee, for it shall be taken that his intent was to purchase it, Ployd. f. 344. a.

If I let B. acre by deed indented, in which I have nothing, and I purchase it afterwardes, it is a good Lease 8. f. 3. 24. F. n. b. f. 73. c. If a man be di­strained in any liberty, and he sue a replevin there by plaint or by Writ, and after hanging the plaint in the Liberty, he be distrained again for the same cause, by the same person who distrained, he shall not have a Writ of recaption, because the plaint is not holden before the Sheriff, &c. nor before the Justices, but if the plaint bee removed by pone, and out of the Liberty before the Justices, there the party shall have a Writ of recaption as well for the reprisall before the Writ as for the reprisall after, whereas otherwise before the removal a recaption did not lie upon the reprisall of a distress in case a replevin was sued in a Mannor or Liberty, and not in the County.

Coke l. 8. f. 78. a. Tenant in taile is, the remainder in taile of the grant of the King, if tenant in taile acknowledgeth a fine or suffereth a common reco­very, it shall not barre the issues because the rever­sion was in the King, but if after the reversion be granted and put out of the crowne, the fine shall bar the issues.

Coke com. f. 14. a. Quod prius est, dignius est, & qui 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 be­gin [Page 71] 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 in­veyed [Page 72] 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.

He 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.

Quod 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 forty [Page 75] 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 ought [Page 76] 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 years [Page 77] 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 were [Page 78] 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 six [Page 79] years, which is a certaine terme, and is a duty to the party himselfe towards the finding of A. B.

Dier 141. Pl. 44. King Ed. 6. granteth to the Lady Mary his Sister the Mannor of D. for terme of her life, according to the Tenor and effect of the last Will of H. 8. which was that shee should have it so long as she was unmarried, afterwards she granted a rent charge out of that Mannor, after which grant K. E. dieth, by whose death the reversion came to her being Queene, and afterwards shee married Philip King, &c. and it was doubted whether the rent charge should remaine or no.

Davis 3. a. b. In ancient times a great part of tene­ments were holden of their Lords by Socage, which was that the Tenants ought to come with their sokes by certaine daies by the yeare to plow, and sow the demesne of the Lords, and because such workes were made for the livelyhood and sustenance of their Lords, they were quitted of all other services: and after such services were changed into monies by consent of the Lords, though the Lords did alien their demesnes and had no lands to plow or sow, yet payed they their rents yearely to the Lords: so the Church and reli­gious houses after the procuration of Victualls was reduced to a certaine sum, did pay it to the Ordi­nary yearely, though he made no visitation, so as the rule, The cause ceasing the effect also ceased, held not in those cases.

So Coke l. 4. in Capels case, it was resolved that where a man held certaine land by rent for Castle-guard, though the Castle was ruined or decayed, yet the rent remained, and pro doth not import a condition, as in the case of an annuity granted pro consilio impendendo, but a full and perpetuall recompence and satisfaction, Vide Davis plura ibi­dem.

In jure non remota, sed proxima causa spectatur, Ba­con Max. f. 1. 2.

In the Law the next and not the remote cause is re­spected.

For it were infinite for the law to judge of the cause of causes, and therefore judgeth of acts by the immediate and next cause, as Bar. Empsons case f. 2. An annuity is granted pro consitio seu impendendo, and the grantee committeth treason whereby hee is imprisoned, that the grantor cannot come un­to him for counsell, yet the annuity is not deter­mined, by this non fesans; for the law looketh not on the remote cause, to wit, the grantors offence which was the cause of the imprisonment but excu­seth it, because his not giving of counsell was com­pulsory, and not voluntary in regard of the impri­sonment which was the immediate cause.

So if a parson maketh a Lease, and be deprived, or resigneth, the successors shall avoid the Lease, for the law regardeth not the cause of the deprivation, or the resignation, which is the act of the party but the act of the Ordinary in the admission of the new incumbent, 2. H. 4. 3. 26. H. 8. 2.

A foeffment in fee upon condition that the Feof­fee shall enfeoff over, and if the feoffee bee dissei­sed, and a dissent case, and then the feoffee bin­deth himselfe in a statute, which statute is dischar­ged before the recovery of the Land, this is no breach of the condition, because the land was never lyable to the statute, and the possibility which was the remote cause that it should bee lyable upon the recovery, the law doth not respect.

Coke l. 2. Winningtons case, This rule faileth in covenous act, where the law taketh heed to the cor­rupt beginning and also in criminall acts, where the law principally regardeth the first motive, vide ibidem plura.

Nihil magis consentaneum est, us iisdem modis res dissolvatur quibus constituitur. Reg. I.C. and Bracton, Nihil tam conveniens est naturali aequitati unumquod (que) dissalvi eo ligamine quo ligatum est, Cok. l. 2. f. 53. a.

There is nothing more agreeing to naturall equi­ty [Page 81] then that every thing should be dissolved by the same meanes it was bound.

As no estate can be vested in the King without matter of record: so no estate can be devested out of him without matter of record, Ployd. f. 553. Walsing­hams case, and 180. Nevils case, 12. H. 7. and many other bookes, for nothing is so convenient to natu­rall equity then that every thing should be dissol­ved by the same band it was tied, and Coke l. 4. f. 57. b. In case of attainder and office, the King is en­titled by double matter of record, and therefore the party grieved ought to avoid it by double mat­ter of record, and not by single travers or Monstrans de droit but is driven to his petition, vide ibidem. plura.

But when a man avoideth the Kings title by as high a matter of record as the King claimeth, though the King be entitled by double matter of Record, he may have it by way of Plea, as one is attainted of treason by Parliament, an office findeth his lands by which the King seiseth them, the party may al­ledge restitution by Parliament, and a repeale of the former Act, 4. H. 7. 7. b. Finch Nomot. 12.

Coke l. 5. f. 26. a. Indentures being made for de­claring of the uses of a subsequent fine, recovery, or other assurance to certaine persons, and within a certaine time, and to certaine uses, are but a di­rectory and doe not bind the estate or interest of the land, yet if the fine or recovery or other assu­rance be pursued according to the Indentures, there cannot be any bare averment against the Indentures to be taken in such case, that after the making of the Indentures or before the assurance by mutuall agreement of parts was concluded, and agreed that the assurance shall bee to other uses, but if other agreement or limitation of uses bee made by writing or by other matter so high or more high: then the last agreement shall stand, for every contract and agreement must be dissolved by a matter of as high [Page 82] 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.

The submission of an arbitrement by deed, must be countermanded by deed.

Things may bee avoided, and determined by the ceremonies and Acts, like unto those by which they were created, Bacon uses &c. as Livery and Seisin by entry, a grant by claime and charge by discharge, and an use which is raised by declaration and limi­tation, may cease by words of declaration and limi­tation.

Non impedit clausula derogatoria sine clausula de non 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 suprema [Page 84] seipsum dissolvere potest, because the highest power may dissolve it selfe, Bacon.

From the matter.

DEbile fundamentum fallit opus, Noy. Max. f. 5. when the foundation faileth all goeth to the ground. As when an estate to which a warranty is annexed, is defeated, the warranty also is defeated, as if Tenant in taile discontinue, and the disconti­nuee is diseised, or maketh a Feoffment upon condi­tion, in whose possession a collaterall ancestor of the issue in taile releaseth and dieth, the issue is barred: but if the discontinuee enter upon the disseisor or upon the Feoffor for the condition broken, the issue is restored to his formedon, Lit.

Coke l. 6. f. 14. a. Burton was deprived for adul­tery, and afterwards by a generall pardon adultery was pardoned, and though the deprivation was in force, and that he that after the deprivation was ad­mitted, instituted and inducted, remained Parson, yet by force of the said pardon is hee become Parson againe without any sentence declaring the depriva­tion to bee void, for by the pardon the adultery which was the foundation of the deprivation was discharged, and by consequence all that was depen­ding on the said foundation is discharged, for sublato fundamento corruit opus.

So if an execution bee sued upon a statute: and then the connusee maketh a defeasance upon the statute upon the payment of twenty pound, if the twenty pound be paid the execution shall be defea­ted as well as the statute, 20. Assize Pl. 7.

If there be a disseisor of Lands in ancient demes­ne, and the Lord confirmeth to him to hold at the common Law, the disseisee reentreth: now the land shall be ancient demesne again, for the estate wher­upon the confirmation should enure is defeated, 49 E. 3. 8.

A Church appropriated to a spirituall corpora­tion becommeth disappropriate if the corporation be dissolved 3. E. 3. 74. b.

Licet tenenti vetus opus reficere non novum facere Febl. 2. f. 51. A Tenant may repair an old work, but not make a new one. As by our law the Tenant may cut downe trees for the amendment of houses or repa­ration of them, 44. E. 3. 21. and 44. 11. H. 4, 32. But if the necessity of a new house commeth in question, as to build a Stable, or no house be built upon the Land at the time of the Lease, the Lessee may not cut downe trees to make a house. 11. H 4. 32.

From the Forme.

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 turn­ed [Page 86] to a thing of another nature, and the turning it into cloath is a Countermand of the Testators Will.

So if a man have a dwelling house, whereunto there is a Common of Estovers belonging, if this house by casualty of fire, or tempest be burnt, or blowen downe, or taken downe, and a new be built in another place neere, or in another forme, the Common of Estovers is lost, and not to be used in this new house, but if the first house were not wholy pulled downe but repaired, or another new house be built upon the same foundation, and in the same forme with the former, the Common of Esto­vers remaineth with the new house, for that in Judgement of Law is the same house, for the buil­ding on the same foundation is but a reparation, ibidem.

So 22. H. 6. 28 It is not sufficient in a bar of a Writ of Wast of an house, to say that, the Defendant hath built a new house in liew of that which is fal­len, but the Defendant must say that, it is as much in length and as much in latitude as the other was, or at the least he must say, that it is as profitable, but when an house is ruinous at the making of the lease, and after falleth, and the Defendant buildeth a new, it is not necessary that he make another house of equall longitude or latitude, Fulb. l. 2. f. 51.

From the end.

SApiens incipit a fine, Coke l. 10 f. 25. b. Et quod primum est in intentione, ultimum est in executione, Suttons Hospitall case. A wise man beginneth from the end, and that which is first in intentions is last in Execution. The pious and charitable end of Sut­ton was the grand motive to the King to give to him meanes by creation of a capeable body politick by way of incorporation, to have a perpetuall suc­cession, to perfect, and perpetuate so pious and cha­ritable a worke, Ibidem.

Finis rei attendendus est, & fines mandatorum do­mini regis per rescripta sua deligenter sunt observandi, for the end in all humane actions is of singular re­gard, for that all things attempted by wise men have their end, and the virtue of the thing is mea­sured by the end, Doder. Coke l. 5. f. 87. a. In Blunfeilds case. The end and fruite of a suit is satisfaction, but the execution of the body is no satisfaction, but a gage for the debt, 4. H. 7. 8. 33. H. 6. 47. And therefore after his death he shall resort to another execution, for it should be mischeivous to the Plaintiff to lose his debt without any default in him, neither is the execution of the body a valuable execution, and therefore af­ter his death he shall have a new execution, untill he hath had a valueable execution out of his Lands and Goods, which in Law and Equity ought to be subject to the payment of his debts, but where no other satisfaction is to be had thereby: Qui non habet in aere luat in corpore, ne quid peccetur impune, Hob. Rep. f. 133. He who hath no mony, let him be pun­ished in body, least he should offend without punish­ment, vide ibïdem.

Exitus acta probat, finis, non pugna, coronat, Dod. E. Law [...]. f. 143. Coke l. 9. f. 82. b. Finis coronat opus, the Law favoureth the consummation and prefection of things, for the end crowneth the worke, and doth all: as the end of an Attornment is to perfect a grant, which the Law therfore favoureth, according to the resolution of the Bookes, 12. E. 4. 3. & 4. where it is holden that Tenant in taile, Infant, or Feme-covert may be bound by an Attornment gratis in pais: and in 18. H. 8. Fortescue holdeth, that if one granteth the service of his Tenant which is within age, who within age attorneth, shall he after in an avowry be admitted to say that he was within age at the time of the Attornement? I say no, for he did nothing but that which he ought to doe, Ibidem.

Ployd. f. 18 a. The scope and end of every mat­ter is principally to be considered in all things, and [Page 88] 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 rever­sion [Page 89] 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 build [Page 90] 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, [Page 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.

From the effests.

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 is [Page 92] 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.

As 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.

From the whole, and the part.

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.

Ʋbi 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, and [Page 95] 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, [Page 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.

From the circumstances of time and place.

MOmentum & instans est unum indivisibile in tem­pore, quod non est tempus neque pars temporis, ad [Page 97] 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 ta­ken [Page 98] 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, [Page 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 di­versity [Page 100] of time, for the estate in Land is the time in Land, for he that hath a fee-simple in Land hath time in the Land without fine, or the Land for time without end, so he that hath land in taile hath time in it, or the land for time, so long as hee hath issue of his body, and he which hath an estate in Land for life, hath time no longer then that he shall live, and so for another mans life or yeares.

And as the time measureth things, so doth the law measure time, as by the true computation the lesser yeare consisteth of 865. daies, and six houres, whereby in every fourth yeare there is die excrescens, which maketh that yeare to have 366. daies, which is called the greater yeare, yet by legall computation, a quarter of a year containeth 91. daies, & half a year containeth 162. daies for the od houres in legal com­putation are rejected: And in the statute de annob. Sextil. it is provided, Quod computetur dies ille ex­crescens, & dies proxime praecedens pro uno die, that the day excrescent and the day precedent shall be computed for one day, so as in computation the day excrescent is not accounted, so a month is regularly accounted in law for twenty eight daies, and not according to the Solar month, nor accor­ding to the Kalender, unlesse it be for the account of the Lapse in a Quare impedit or the right of the Pa­tron.

Coke com. f. 135. b. And Kellaway 21. H. 7. f. 75. A feast in our law beginneth in the morning and endeth at the night, and the naturall day be­ginneth ad ortum solis, and endeth ad occasum solis, and so is it taken and adjudged in our Law. But the feast by the law of the Church begin­neth at noone in the Vigil, and lasteth untill the midnight of the next day, and the night which maketh burglary, beginneth ad occasum solis, and lasteth untill the rising of the Sunne, for where a man hath broken an house after the setting of the Sun, it hath beene adjudged burglary, for if the [Page 101] night should begin so soone as the day is ended, and last untill the morning of the next day, it would be too hard a thing to try &c. ibidem.

In omnibus stipulationibus id tempus spectatur, a quo contrabimus, Reg. I.C. Paulus 62. ad edictum, in all assumpsits and contracts, that time is respected from which we contract, as a man seised in fee, ma­keth a lease for ten yeares, and after selleth the land and taketh it back againe to him and his wife: and then the husband and wife letteth it for twenty years, reserving a rent, the husband dieth, the wife accepteth the rent for the first ten yeares, by this the second lease is not affirmed, for the acceptance of the rent before the lease beginneth, and is not due, is no acceptance, 1. E. 6. 37.

Coke l. 5. f. 1. a. b. in Claytons case, From hence­forth in a Lease shall be accounted from the deli­very of the Indentures, and not from the computa­tion of the date, for from henceforth is all one to say as from the making of the Lease. Et traditio lo­qui facit chartam, delivery maketh the deed to speake; where a Lease is to begin from the making of a Lease, there the day of the delivery shall be taken inclusive, and the day it selfe is parcell of the demise, but if it be made to begin from the day of the making or the day of the date, then the day it selfe shall be taken exclusive, and excluded.

And whereas the statute of 27. H. 8. Of enrole­ment, saith, That all such writings shall be enrolled within six monthes after the date of the same wri­tings indented, if the writings have date, they shall bee accounted from the date, but if the date be wanting, the six months shall be accounted from the delivery, vide ibidem plura.

In obligationibus in quibus dies non ponitur presen­ti die debetur Pomponius, & nulla temporis designatio praesens denotat, Reg. I. C. And it is a ground in our Law, that when a man's bound in twenty pound to pay ten pound, and no day of payment is limitted, the lesser sum is due presently, and ought [Page 102] 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 the [Page 103] 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.

Qui male agit, odit lucem, Coke l. 7. f. 66. a. and there­fore it was resolved by all the Justices, and Barons of the Exchequer, that an arrest in the night was law­full, as well at the suite of the Subject, as the suite of the King, for the Officer and Minister of Justice ought to arrest him when he can finde him, for o­therwise peradventure he shall never finde him, for he that doth evill hateth the light; and if the Offi­cer doth not arrest him when he findeth him, and may arrest him, the Plaintiff shall have an action upon the case, and shall recover all his losse and damages, and it is like unto the case for 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 that [Page 105] 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 was [Page 106] 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 at [Page 107] 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, and [Page 108] the Writ supposed the sum to be paid in the four­teenth yeare of E. 3. and by the suit the Feoffee was outed, whereupon he sued a Writ of error in the Kings Bench, and the writ was abated, and it was said, that the time declared certainty, for it might be that there were two statutes payable at diverse severall daies, and therefore the day of payment was materiall, ibidem.

So if a defeasance be made of a statute which reciteth it to be made the tenth day of May, where it beareth date the first day of May, the defeasance is void for the misprision of the time, for the law saith, that it may be that there was two statutes, the one bearing date the first day, and the other the tenth day, vide ibidem plura, in the Earle of Leice­sters case.

A loco, from the place.

LOcus pro solutione reditus aut pecuniae secundum conditionem dimissionis aut obligationis est stricte observandus, Coke l. 4. f. 73. a. in Burchers case. The place for the payment of money or rent, accor­ding to the condition of a Lease or obligation, is strictly to be observed. As if a common person ma­keth a Lease of Lands in R. reserving a rent to be ge­nerally paid at such a feast, upon condition of re-en­try if it be not then paid, the demand must be upon the land, for the land is the debtor, and therfore that is the place of demand appointed by the law: and if there be an house upon the land, he must demand the rent at the house, and not at the back doore but at the fore doore, because the demand must be made at the most notorious place, and it is not materiall whether any person be there or not, and if one place be as notorious as another, the Lessor hath electi­on to demand it at which he will, and if the Lessor demand it at a place which is not notorious, or at the back doore of the house, and in pleading alledge [Page 109] a demand of the rent generally at the house, the Lessee may traverse the demand, and upon the evi­dence it shall be found for him, for that it was a void demand, Ibidem; and Coke com. 201. and 202. b. a.

But if a rent be reserved upon the demise, to be payable at a place out of the land, he that shall take advantage for non-payment of the rent ought to demand the rent at the place where it is limitted to be paid, and therefore the opinion in Kelwellies case, Ployd. f. 70. that he in the reversion may en­ter for the non payment of such rent without any demand made, was utterly denied by the whole Court, Ididem, and Coke, com. 202. a.

But if there be no place appointed where the rent is to be paid, there the rent is to be tendred on the Land, Coke 210. a. b. Because it issueth out of the Land, but otherwise it is in such a case of a Feoff­ment or Mortgage, for it is not sufficient for the fe­offor to be upon the land, there ready to pay the money to the feoffee at the day set, but he must seek the feoffee if he be then in another place with­in the Realme of England: and so it is if a man be bound in an obligation of twenty pound, upon condi­tion that he pay to the obligee at such a day 10. l. that then &c. The obligor ought to seek the obligee if he be in England, and at the day appointed tender the ten pound, otherwise he shall forfeit the twenty pound, Coke com. ibidem, and therefore as he adviseth, it shall be good and a sure way upon such a feoffment or mortgage to appoint a speciall place where the money shall be paid, and the more especiall it is the more better it is, Coke com. f. 211. b. And so is it also upon an obligation.

Ployd. f. 71. a. and b. If the obligee be in his own house, and the obligor come to him there, and ten­der the mony, he shall not be a trespassor for his comming there, for in that by the taking of the ob­ligation, the obligee was assenting that the obli­gor should pay him the ten pound, by necessity of [Page 110] reason he ought to be assenting to come to him to of­fer unto him the 10. l. for to come to his person prece­deth the offer which he was assenting to; & therfore ex consequenti, he shall not punish him for that thing to which himselfe was agreeing. But if he had en­tred into the house of another man, there he shall be a trespassor to the said man, if the same man will take him so, vide plura ibid. Kedwellies case.

Exception.Though a common person in reversion cannot enter for non-payment of rent without demand, yet if the King make such a Lease for yeares, rendring rent with such a condition ut supra, the King shall take advantage of the condition without any demand, because the law, which alwaies observeth decorum, and conveniency, appointeth the subject to attend upon his soveraigne, and in such case to make the first act though it be in case of condition, which trencheth upon the destruction of his estate.

But if the King granteth the reversion over, his grantee shall not take advantage of the conditi­on without demand, for it is a personall prerogative annexed to the person of the King, and not in respect of the nature and quality of the land, Coke l. 4. f. 23. A

So the King maketh a Lease for yeares, ren­dring a rent, payable at his receipt of Westminster, and after the King granteth the reversion to ano­ther and his heires, the grantee shall demand the rent on the Land, and not at the Kings receipt at Westminster, for though the law without expresse words doth appoint the Lessee in the Kings case to pay it at the Kings receipt, yet in case of a subject the law appointeth the demand to be on the land, Coke com. f. 201. b. and Coke l. 4. f. 72. 73. Burroughs case, vide ibidem plura.

Circumstantia loci est testis veritatis, & certitudi­nis, Ployd. 393. a. The place is materiall and is a circumstance and witnesse of truth and certainty: As if a man will plead the Letters Patents of the King, bearing date at Westminster, and indeed they [Page 111] 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 [...] [Page 102] by descent generally, in that case the Plaintiff can­not reply in such generall manner, for then no tri­all can be had of it, but in case for conformity and necessity of a triall, he ought to name a certaine place, as there he did in the Parish and 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, [Page 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 prae­cidito [Page 114] 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.

A Paribus, from equals.

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.

But 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.

A Simili, from the like.

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, [Page 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, [Page 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.

A majori & minori, From the greater and the Lesser.

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, and [Page 119] 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 service [Page 120] 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 between [Page 121] 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 more [Page 122] 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, [Page 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 men [Page 124] 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 which [Page 125] 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.

From authority and example.

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 presidents [Page 127] 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. [Page 128] The 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 and [Page 129] 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 by [Page 130] 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, but [Page 131] 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 inconve­niences [Page 132] arising since the former judgements or other waighty considerations, respecting the good of the Common-weale in generall, Sir John Davis in his Preface.

From Propositions.

A Proposition is an oration affirming or deny­ing aliquid de aliquo something of something, and is called of the Philosopher [...] a pronouncing speech, shewing the thing either to be true or false.

Negativum nihil implicat, 11. H. 7. 23. Dod. E. L, f. 111. There are propositions negative which imply an affirmation, and those we call negative pregnants, which we doe refuse in all issues of trialls by Jurors, except in some cases, where the necessity of the cause doth require the same, and there are also propositions meerely negative which are meere ne­gations, of which we commonly say, negativum nihil implicat, a negative implieth nothing.

As the Tenant wageth law of non Summons, this doth not imply that he was tenant, neither shall conclude him, 22. H. 6. 41. One pleadeth ne Cha­sa pas he did not hunt in the free Chase of the Plain­tiff, this is no granting that the Plaintiff had a free Chase, but he must prove it, 10. E. 3. 20.

Affirmativum negativum implicat Ployd. f. 206. b. An affirmative includeth a negative, for every sta­tute limiting any thing to be in one forme, although it be spoken in the affirmative, yet it includeth in it selfe a negative, as the statute of W. 2. c. 4. Of a quod ei deforceat giveth that the demandant shall vouch, ac si tenens esset in priori 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.

So the statute of W. 2. c. 11. Provideth that upon an account ended before auditors assigned, and ar­rearages found upon the accountants, they have power to send and deliver their bodies to the next Goale of the Lord the King in those parts, and up­on it is taken 27. H. 6. f. 8. That the auditor ought to commit him to the next Goale though it be in ano­ther County, for they cannot vary from the place li­mited by the statute, and is as much as if be had said, and in no other Goale. So the statute of W. 2. c. 3. giveth a Writ of second deliverance out of the Court where the first replevin was granted, and a man cannot have it any where else, for where the statute appointeth the place, order and, forme of suits, then they cannot sue in any other place or any other forme, if they should, it shall be contrary to the purview of the statute. So if tenant in taile make a feoffment to himself for life, and after to the use of his issue in taile, and dieth since the statute of 27. H. 8. The issue in taile shall not be remitted, for the statute executed the possession in the same man­ner and forme as he had the use, which is all one, as if he should say and in no other manner and form, and he had the use as a Purchaser, and so he shall have the land here, and not be remitted. 2. M. 1. ante 114. vide ibidem plura.

From Division.

DIvisio est oratio qua totum in partes 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, [Page 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 of [Page 135] as few parts as may be, for it is vaine to doe that by more, may be effected by fewer; and therefore the Peripatericks approve a dicotomy or a two fold division non [...], not that we should be restrained to make a division alwaies of two parts, but that we may divide it into as many as the nature of the thing 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 one [Page 136] 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 Sta­tute [Page 137] 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, which [Page 138] 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, [Page 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 an­tiently [Page 140] 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 Lessor [Page 141] 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.

From naturall Philosophy.

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, [Page 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 bore [Page 143] 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 the [Page 144] 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 same [Page 145] 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 beyond [Page 146] 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, [Page 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 the [Page 149] 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 se­cundum [Page 150] 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. Yet [Page 151] 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.

Vir 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, [Page 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 is [Page 154] 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 Daugh­ter [Page 155] 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 educa­tionem [Page 156] 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-ha­biteth [Page 157] with her husband by censure of the Church, in all these cases shee loseth her Dower, Coke ibidem, 32. b. yet though shee be barred of her dower, shee may have an appeale, and the reason is because the Statute of W. 2. c. 34. barreth her of her dower, but not of her appeale, Coke com. f. 33. b.

And for the abovesaid reasons, dower is one of the three things are principally favoured in our Law, and the Law by that name doth give her ma­ny freedomes, for the very name Dos doth give her a freedome, as according to the custome of the Kingdome, mulieres viduae debem esse quietae de talla­gijs, Regist. 142. 143. and tenant in dower shall not be distrained for the debt due to the King by the husband in his life time, for the Lands, which shee holdeth in dower, of which Ockam yeeldeth this reason: Doti ejus parcatur, quia praemium pudoris est, let her dower be spared, because it is a reward of her chastity, Coke com. f. 31. a.

By the Statutes of 1. E. 5. c. 2. & 5. E. 6. c. 31. A wife shall not lose any title of dower, which to her was accrued, by the attainder of her husband by misprision of treason, or any manner of murder, or felony whatsoever, but if the husband be attainted of high treason or petit treason shee shall be barred of her dower, at this day so long as the attainder standeth in force, which is more favourable to the woman then the common Law was, Coke com. f. 392. b. vide ibidem plura.

And a woman shall be endowed of a seisin in Law, as where Lands, or Tenements descend to the husband, before entry he hath but a seisin in Law, and yet the wife shall be endowed, albeit it be not reduced to an actuall possession, for it lyeth not in the power of the wife to bring it to an actuall pos­session, as the husband may doe of his wifes Land when he is to be tenant by courtesy, Coke com. f. 31. a.

If a man taketh a wife of the age of seven yeares and alieneth his Land, and after she attaineth to [Page 158] the age of nine yeares, the husband dyeth, the wife shall be endowed, for albeit shee was not absolute­ly dowable at the time of her marriage, yet was she conditionably dowable, to wit, if she attained to the age of nine yeares before the death of her hus­band, ibidem, f. 33. a.

An husband seised in fee of Lands, giveth it in exchange, and taketh others in exchange, so as he was seised of both, the wife shall not be endowed of both, but she may take her election to be endowed of which she will, Coke ibidem, 31.

If the wife be of the age of nine yeares, and her husband dyeth, she shall be endowed, though her husband be but four years old, ibidem, or of what age soever the husband be, quia non obstabit mulieri petenti dotem minor aetus viri, because the inferior and lesser age of the man shall hinder the woman from demanding her dower, and that albeit consen­sus non concubitus facit matrimonium, and that a wo­man cannot consent before twelve, nor a man before fourteen, yet this inchoate, and imperfect marriage, from the which either of the parties at the age of consent may disagree; after the death of the hus­band shall give dower to the wife; and is accounted in Law legitimum matrimonium quo ad dotem, a law­full marriage in respect of her dower, Coke com. f. 33. a.

If the husband alien his land, and then the wife is attainted of felony, now is she disabled, but if she be pardoned before the death of her husband shee shall be indowed, ibidem.

Dos de dote peti non debet, Coke com. f. 32. Dower ought not to be demanded of Dower, as if there be Grandfather, Father, and Son, and the Grand­father is of three acres of Land in fee, and taketh wife, and dyeth, this Land descendeth to the Fa­ther who dyeth, the wife of the Grandfather is en­dowed of one acre and dyeth, the wife of the Fa­ther shall onely be endowed of two acres, for dow­er must not be demanded of dower, but otherwise it [Page 159] 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 keeping [Page 160] 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 Signi­ory [Page 161] 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 heire [Page 162] 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 not [Page 163] 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 their [Page 164] 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 li­neally [Page 165] 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 is [Page 166] 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, because [Page 167] 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 heirs [Page 168] 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 co­verture [Page 169] 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 inhe­ritance [Page 170] is principally to be respected, because it is in the eldest Son and his issue, per modum substantiae, and that which is in any person per modum substan­tiae, is inseperable from him, and cannot be exten­ded to any other, besides it is against the Laws of proximity of degrees, that those which are in a re­mote degree should be preferred before those of the next degree, and therefore in all common weales for the most part proximity of blood hath been pre­ferred, of which we have a notable example confir­med by the act of Lycurgus the judicious Law-giver, as when Eunonus King of the Lacedaenonians had two Sons, Polydectes the elder, and Lycurgus the younger, and Polydectes deceased leaving no Son living, at the time of his death, the Scepter of the Kingdome was seated in the hands of Lycurgus, af­terwards when Polydectes Widdow had brought forth a Son, Lycurgus did willingly and peaceably yeeld to him the Scepter, which act of Lycurgus a­greeth fully with our Laws, whereby it is ruled, that if a man have a Son and Daughter, and the Son pur­chaseth Land, and dyeth, the Daughter entreth, and after the Father begetteth another Son of the same Wife, this Son shall have the Land, 19. H. 6. b, and is also ratified by diverse examples in the suc­cessions of our Kings, I will instance onely in one and the most illustrious one, King Edward the third, being deceased, Richard the second the Son of his eldest Son obtained the Kingdome, and was prefer­red before John, Edmund, and Thomas the sons of the same King, wheras any of them was more worthy and fit for the Scepter, yet is it granted, that in succession of regall dignity, jus primogeniturae is not constantly observed, because in that case the good of the com­mon-weale, and commodity of the people is politi­cally to be respected, and as the Civilians, the good estate of the Kingdome and Subjects is more to be heeded, quam sangninis series, then the pedigree of blood, and so Solomon the younger Brother was advanced before the elder by the hand of David his [Page 171] Father, and Roboam preferred Abias his younger Son yet this must be done cautiously, and with a good conscience and intention, and probably for the utility of the State, otherwise it will neither please God nor man, yet in the disposing of private estates, the Law of Primogeniture is more strictly to be ob­served, because by it confusion and dissention is a­voyded, which from the contrary doth proceed, as is intimated by Coke l. 3. f. 40. b. Wherein our Law ex­celleth, which preferreth the elder Brother and his issue before the younger Brother and his issue in case of descent, and that jure sanguinis, by his birth right, as he is most worthy of blood, and therefore as Coke in his com. f. 14. a. The male and all descen­dant from him shall inherit before the female, and among the males, the eldest Brother and his posteri­ty shall inherit Lands in Fee-simple as heire, be­fore any younger Brother, or any descending from him, whereas by the Civill Law the inheritance is divided among the males, Lutleton. l. 1. c. 1. There be three Brothers, and the middle Brother purchas­eth Lands in Fee simple, and dyeth without issue, the elder Brother shall have the Land by descent, so also it is if the youngest purchaseth Lands in Fee, and dyeth without issue the eldest shall have it jure sanguinis, because he is the worthiest of blood, Little.

So if a man enfeoffe another upon condition, and the condition is broken, and then the Feoffor dyeth without issue, his wife privement ensaint, and the Brother of the Feoffor enter for the condition bro­ken, and after a Son is borne, he shall avoid the possession of the Uncle, and may lawfully claime the inheritance, 9. H. 7. 25.

And 9. H. 8. 23. It is said, that after two, or more descents the heire afterwards born claiming by des­cent, may enter into Land, but he shall not have a Writ of account for the meane profits.

And though Littleton in defence of the custome of Gavelkind, by which the issues may equally inhe­rit, alledgeth the reason, that every Son is as great [Page 172] 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.

But if lands be given to A. and B. so long as they joyntly together live, the remainder to the right heires of him which dieth first, and warranteth the land in forma praedicta, A. dieth, his heire shall have the warranty, and yet the remainder vested not during the life of A. for the death of A. must precede the remainder, and yet shall the heire of A. have the land by descent, vide ibidem, 378. b.

Justum non est aliquem ante natum, mortuum face­re Bastardum, qui toto tempore suo pro legitimo habe­batur, Coke l. 8. f. 101. a. b. It is not just to make any one a Bastard, borne before marriage, being dead, who all his life time was accounted legitimate. For by the law of England, if such a Bastard which the law termeth Bastard eigne, doth continue pos­session in peace, (that is, if the mulier make no en­try for the Bastard eigne, or continuall claime) and so dieth in peace, his issue is become right heire and will bar the mulier, because he was legitimate by the lawes of the holy Church. For though the subse­quent marriage doth not make a Bastard legitimate, quoad consuetudinem regni, as [...]ract. phraseth it, in re­gard of the custome of the Realme, yet quoad sacer­dotium in respect of the Canon law it doth, and in this case of legitimation, which in law is so precious, and of so great estimation, the law respecteth neither infancy or other defects in the mulier, but preferreth legitimation of blood before any benefit of tempo­rall inheritance, and therfore the law saith, that by the death of Bastard eigne in peace, his issue is be­come right heire, and by consequence the mulier is barred, and the descent doth not onely take away the entry but the right also, and therefore descent in this case shall be a bar to right, as descent of services, rents, reversions expectant upon an estate taile, shall bar the right of the mulier, 14. E. 2. Bastardy 26. but not the entry or claime of the dis­seisee.

But if a Bastard eigne dieth without issue, so as the land doth descend, the mulier shall have it, ibidem, and if the Lord by escheat entreth, this shall not bar the mulier, because no descent, Coke com. 244.

If there be Bastard eigne and mulier puisne, and the father maketh lease for life, reserving rent, and the bastard eigne receiveth the rent and dieth having issue; this shall barr the mulier, Coke com. f. 15. a.

If a man hath issue a son being a Bastard eigne, and a daughter, and the daughter is married, the father dieth, and the son entreth and dieth seised, this shall barre the feme covert, and the descent in this case of services, rents, reversions, expectant upon estate, or for life, whereupon rents are reserved &c. shall bind the right of the mulier, but the des­cent of these shall not bind them that right have to an Action, Coke com. f. 244. a.

So if the Bastard dieth seised, and his issue en­doweth the wife of the Bastard, the mulier can­not enter upon tenant in dower, for his right was barred by the descent, ibidem.

If the Bastard eigne entreth into land, and hath issue, and entreth into religion, this descent shall bar the right of the mulier, ibidem.

If a man hath issue two daughters, the eldest being Bastard eigne, and they enter and occupy peaceably as heires, the law shall not adjudge the whole possession in the mulier, so as if the Bastard had issue and died, her issue shall inherit, and if they make partition, that partition shall binde the issue for ever, Coke com. 244. a. b.

And such a Bastard being impleaded or vouch­ed shall have his age. If a man hath issue a Bastard eigne, or mulier puisne, and the Bastard in the life of the father hath issue and dieth, and then the father dieth seised, and the son of the Bastard entreth as heire to his Grand-father, and dieth seised, this descent shall bind the mu­lier, ibidem b.

If the Bastard enter, and the mulier dyeth, his wife being privement with a Son, and the Bastard hath issue, and dyeth seised, the Son is borne, his right is bound for ever, but if the Bastard dyeth seised his wife enseint with a Son, the mulier en­treth, and the Son is borne, the issue of the Bastard is barred, ibidem. 244. a.

If the bastard eigne entreth, and the King seis­eth the Land for some contempt committed by the Bastard, for which the King receiveth the profits of the Land, and the Bastard dyeth, and his issue upon petition is restored to the possession, the mulier barred for ever. But when the King seiseth for a contempt of the Father, &c. if the issue of the Bastard eigne upon petition be restored, for that the seisure was without cause, the mulier is not barred, for the Bastard could never enter, but the possession of the King in that case, shall be adjudged in the right of the mulier, Coke ibidem f. 245. b.

Bastardus nullius est filius, Littleton. Coke com. f. 203. a. aut filius populi, Coke l. 6. f. 6. A bastard is the Son of none, or the Son of the people, according to the com­mon report,

For as the civilians, pater est quem nuptiae demonstrant, he is a Father, whom the espousalls, and nuptialls shew so to be.

And therefore if a wife have a bastard it shall not be a villaine, or if a villaine have a bastard, by a woman, and marrieth her, the bastard is no villaine, because he is nullius filius, though some hold the contrary, as Bracton, and Britton, for in both cases [Page 176] 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. [Page 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 that [Page 178] 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 longis­simum [Page 179] 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 An­cestors [Page 180] 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, [Page 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 heire [Page 182] 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, barreth [Page 183] 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, entreth [Page 184] 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.

A 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, [Page 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, and [Page 187] maketh a feoffment on condition, and dieth with­out issue, and the heire of the part of the father en­treth, the heire of the part of the mother may oust him, Ployd. 56. b. and 57. a. In Wimbish case, quod vide.

Infinitum injure reprebatur, Coke l. 6. f. 45. What is infinite is reproved and rejected in law. As if a man have a debt by simple contract, and taketh an obligation for the same debt or any part of it, the contract is determined, 3. H. 4. 17. 11. H. 4. 9. and 9. E. 4. 50. 51. So if a man have a debt upon an obligation, and by course of law hath a judge­ment upon it, the contract by specialty is changed into a thing of record, for if he that recovereth should have a new Action or a new judgement, he may have infinite Actions and infinite judgements, to the perpetuall charge and vexation of the de­fendant, and he shall not have a new Action or a new judgement, for what is infinite is rejected in law. So upon every judgement the defendant shall be amerced, and if he bee a Duke, Marquess, Earle, Viscount, or Baron, he shall be amerced 100 l. and so the defendant should be infinitely amerced up­on an obligation, which shall be mischievous, Ibid.

And lib. 7. f. 45. b. It was resolved in the Court of Wards, by the greater part, that a Bill of reviver upon a bill of reviver shall not be admitted, by rea­son of the infiniteness, which is rejected in law.

And lib. 8. f. 16. b. When the first office is found against the King, and the melius inquirendum also, the King is bound nor to have any melius inqui­rendum for the same matter, because there should be no end of it, and that such writs might issue infi­nitely, and infinity is condemned in law.

Nihil tam conveniens naturali aequitati quam volun­tatem domini volentis suam rem in aliam transferre ra­tam haberi, Bracton f. 18. God hath given to man all the land, terram dedit filiis bominum, So men by Gods endowment are made Lords of the land, and what property a man hath in lands by law, by the law of [Page 188] God also he hath dominion of it, and therefore every man who is the lawfull owner of land, may grant to what person, in what manner, and for what time it pleaseth him, for if the land be subject to man, then is it subject to his will, for the will com­eth from the mind, which is the principall part of man, because it directeth the body and all things he hath, and if his land be subject to his will this his will is a sufficient consideration, by which his land may pass as his will is, and there is no grea­ter consideration then the will, Ployd. f. 308. b. And nothing is more agreeable to natu­rall equity then to ratify the will of the Lord, willing to transferr his substance and estate over to ano­ther.

And therefore at the common law the intention and will of the parties was the direction of uses, for they were onely determinable and to be adjudg­ed by the Chancellor, which is the Court of con­science and equity, and there is nothing more agreeable to equity, then that the will of the Lord or owner, and the meaning of the parties should direct the uses, 31. H. 16. Tit. subpaena Fitz. 23. A man being ceste que use and having one sole daugh­ter, declared his intent and meaning to the Feoffees, that after his decease, his daughter should have his land, and for it question was made in the Chance­ry, whether the limitation of that use made to the daughter might be revoked, and in reasoning of that case Fortescue held opinion, that if ceste que use had issue a daughter, and being sick decla­red his intention to his feoffee, that his daugh­ter shall have his land after his decease, and af­ter hee recovered his health, he had issue a sonne, now saith hee it is good conscience the sonne should have the Subpaena because hee is heire, for conscientia dicitur a conset scio & quasi simul scire cum Deo, that is to know the will of God so neere as reason will, and the intention of [Page 189] the parties, is to direct the uses according to a conscionable and benigne construction, Coke l. 1. f. 100. a. b. vide ibidem plura.

As a gift in taile may bee made upon condi­tion, that tenant in taile may alien for the pro­fits of his issue and good, and hee may alien, notwithstanding the Statute of W. 2. because in that case voluntas donatoris observatur, The will of the Donor is observed. Coke com. 224. b. If Lands be given to B. and his heires, Habendum to him and the heires of his body, or if given to him and the heires of his body, Habendum to him and his heires, he hath estate taile, and a fee expectant, but if Lands bee given to B. and his heires; if B. have heires of his body, and if he die without heires of his body, that it shall revert to the Donor, it is an estate taile, and the reversion in the Donor, for voluntas donatoris in charta doni sui manifeste expressa est observanda, The will of the Donor manifestly expressed in the Charter of the gift is to be observed, Coke com. f. 21. a.

If a common person doth without considerati­on give to I. S. his goods indefinitely, all his goods doe pass, 21. E. 4. 25. Alba of Waltams case, by Brown and Genny.

If the King doe grant to one lands ex mero motu and though his Highnesse doth rehearse some consideration in the patent of his grant which is not true, as if the consideration bee, that whereas the Grantee hath done his Ma­jesty good service on the Sea or beyond the Sea, or in his Wars, though the consideration bee meerely supposed, and therefore no good con­sideration in Law, yet the words ex mero motu doe make the Grant good, 26, H. 8. 1. by Fitz.

And if a common person doe by deed 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, [Page 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 their [Page 192] owne estates. But these are to be understood of conditions annexed to the grant or sale it selfe, in respect of the repugnancy, and not to any other col­laterall thing, Coke com. f. 223. a.

But before the statute of quia emptores terrarum, A man might have made a feoffment in fee, and ad­ded further, that if he and his heires did alien with­out licence, that he should pay a fine, it had beene good then, and then the Lord also might have re­strained the alienation of the tenant by conditi­on, because the Lord had a possibility of reverter, and so it is in the Kings case at this day, because he may reserve a tenure to himselfe.

If A. be seised of black Acre in fee, and B. en­feoffeth him of white Acre, upon condition that A. shall not alien black Acre, the condition is good, for the condition is annexed to other land, and ousteth not the feoffee of his power to alien the land whereof the feoffment is made, and so no re­pugnancy to the State passed by the feoffment, and so it is of gifts or sales of Chattels, realls, or perso­nalls, Coke ibidem.

But if a feoffment be made upon condition, that the feoffee shall not infeoff I. S. &c. This is good, for he doth not restrain the feoffee of all his power, and in this case if the feoffee infeoff, I. N. of intent and purpose that he shall infeoff I. S. some hold that this is a breach of the condition, for, Quando aliquid prohibetur fieri ex directo prohibetur & per obliquum, for when any thing is forbidden to be done directly, it is also forbidden to be done collaterally or ob­liquely, Coke ibidem b.

And a gift in taile that is made upon condition, that the donee nor his heires shall not alien in fee in taile, or for terme of anothers life, is good to all those alienations which amount to any disconti­nuance of the estate taile, or is against the statute of W. 2. but as to a recovery the condition is void, for that is no discontinuance, nor against the said statute. Neither is a collaterall warranty or lineall [Page 193] 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 chargeable [Page 194] 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.

Non 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 con­federacy [Page 196] 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 maketh [Page 197] 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 being [Page 198] for this purpose did not avoid the disseisin, for his intent in this case did guide his entry to a speciall purpose, Val. 19. Eliz. l. B. Coke ibidem.

The intention and agreement of the mindes of the parties is the onely thing that the law respecteth in contracts, and such words as bewray the assent of the parties, and have substance in them, are suf­ficient, Ployd. f. 141. As if one make an obligati­on, and the obligation is endorsed, that the obligee doth will and grant, that if the obligor shall stand to the arbitrement, ordination, and judgement of A. and B. that then the obligation, shall be void, there an exception was taken to the condition, for that the words are the words of the obligee, and not of the obligor, but it was holden by the better opinion, that the condition was good, for there is sufficient substance of a condition, and the intent of the parties appeareth, and yet the words are not usuall for conditions, for the words of the condition are the words of the obligors, 21. H. 6. f. 55.

So a grant of an annuity to one, pro consilio impen­dendo, is a grant conditionall, for if he will not give counsell, the annuity shall cease, and yet there is not one word of a condition. So T. 9. E. 4. f. 19. &. 22. where debate was for tithes betweene a Prior and another, and the composition be­tweene them was, that the Prior should have the tythes without challenge or contradiction of the other, and the Prior granted to the other forty shil­lings yearly, and by the better opinion, the grant shal enure conditionally, so as if the other disturbe the Prior in receiving his tithes, the forty shillings shall cease.

If one make a Lease for yeares by deed, and by the same deed covenanteth that the Lessee shall nor be impeached of wast, that word Covenant made at the same time, amounteth to as much as [Page 199] if he had said Habendum: for years without impeach­ment of wast, P. 21. H. 6. f. 7.

I. S. did bind himselfe in an obligation of twenty pound, and the obligation was Noverint universi per presentes me, I. S. teneri & obligari W. B. in twenty pound, solvendum eidem I. &c. and yet the obli­gation good, and the Court held that the Count shall be made solvendum to the Plaintiff, for the interest of the parties there appeareth, and the cer­tainty of the bond before, shall not be taken away by the Solvendum after, M. 4. E. 4. f. 23.

So if one have a remainder of land in him, and he granteth it to another, by the name of a rever­sion of land, that shall be a good grant, for there the certainty of the land appeareth, and then notwithstanding the mis-terming of the thing, the law regardeth the intention of the par­ties, and doth judge according to it. So if I be bound to pay you at the feast of Saint Michael which shall be in the yeare of our Lord 1555. 20 s. And at the same feast of Saint Michael then next en­suing other 20 s. The law will adjudge the same feast to have the meaning of such or the like feast, for it cannot be the same feast, if it come after it, so the law will take one word for another to sup­ply the intent of the parties, vide ibid. Ployd. 141 b. Brownings case.

Carta non est nisi vestimentum donationis, Bract. and the intent directeth gifts rather then the words, Ployd. 160. b. As if a receivor be bound in an ob­ligation to his master to pay to him omnia recepta & recipienda, all things received and to be recei­ved in his office, that by it he is not bound to pay all that he might receive, but onely that which he shall receive indeed, and so his intent shall rather be taken then the word, H. 41. E. 3. f. 6.

So where a man maketh a Lease of an house, so as the lessee may make his profit of the houses with­in, he cannot pull downe the houses or make wast of them, for the intent was not such, although the [Page 200] 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 the [Page 201] 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 is [Page 202] 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 the [Page 203] 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.

Though it be a generall rule, that the words which the common people use to expresse their in­tent, ought to be taken according to the intent, and not according to the very definition, in Hills, and Granges case, f. 170. And that generalis regula generali­ter est intelligenda, yet this rule is principally to be ob­served in cases of uses, which were onely trusts, and confidences between man and man, Coke l. 6. f. 64. vide ibidem plura, in Sir Moile Finches case.

And Coke l. 1. f. 100. Shelleys case, we finde in diverse cases of our Books, that the intention of parties is the direction of uses by a conscionable, and benigne construction; as if a man seised of Lands of the part of his mother, maketh a feoffment in fee, reserving a rent to him, and his heirs by the common Law, the rent shall goe to the heir of the part of the father, Lit. But if a man be seised of lands of the part of the mother, and maketh a Feoffment in fee to the use of him and his Heirs, such use shall not goe to the heire at the common Law, but in re­gard the Land moved from the part of the mother, therfore in equity, the use, which is nothing else but a trust, and confidence shall also goe to the heirs of the part of the mother, 5. E. 4. f. 4. And though Littleton saith, that a man in a Feoffment and grant shall not have a Fee-simple without these words Heirs, yet if a man before the Statute of 27. H. 8. had bargained and sold his Land for mony without these words heires, the bargainee had a Fee-simple, because at the common Law nothing passed from the bargainer, but an use which is guided by the in­tention of the parties, which was to convey Land wholly to the bargainee, for that the Law intendeth that the bargainee paid the true value of the Land for it is in equity, and according to the intent of the parties, the bargainee had a Fee-simple without these words heires, 27. H. 8. f. 5. Coke ibidem.

And as Ployd. f. 345. a. A fortiori, the intent, saith he, shall be observed in wills, where the words cannot be performed, for Testamentum est testatio [Page 205] mentis, but that which is other then the intention, is not the testation of the minde, and therefore as he saith also, f. 54. b. It is the office of Judges to marshall the words of wills, according to the inten­tions of the parties, for the most part of them are made in extremity, and when there is no counsell of Law ready, or present, and the testators them­selves are not for the most part learned in the Law, and are accounted inopes consilij, neither have they knowledge to put words in good order, and there­fore the ignorance, and simplicity of those which make their wills, require a favorable interpretation of the words of the will according to the intent.

As Lands were devised to one for life, the re­mainder for life, the remainder Ecclesiae sancti Au­dreae in Holborne, and since the death of tenants for life, the Parson of the said Church sued an ex gravi querela, and it was pleaded in Judgement, that the remainder took no effect, because the Church was not a Parson capable, and upon that was a demur­rer; and adjudged, that the devise was good, and that the Parson shall have execution, and yet the Parson was not named in the devise, but was com­prehended in it, Pas. 21. R. 2.

If a man devise the Mannor of D. and had nothing in it at the time of making the will, and that since he purchased it, it shall passe by the devise, for it shall be taken, his intention was to purchase it, and if it should not passe, the will should be void to all intents, Ployd. f. 344. a.

So if one devise Land to the wife of I. S. and I. S. dyeth, and shee taketh to husband, another and after the devisor dyeth, shee shall have the Land, and yet shee was not the wife of I. S., when the de­visor dyed, nor shall not take it as his wife, but the intent was that shee that was the wife of I. S. at the time of the making of the Will shall have it.

And if a man devise Lands to Alexander Nowell Deane of Pauls, and to the Chapter there and their [Page 206] 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. [Page 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 taken [Page 208] 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 for [Page 209] 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 for [Page 210] 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, the [Page 211] 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 testa­toris [Page 212] 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 another [Page 213] 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 the [Page 214] 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, & [Page 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 not [Page 216] 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. [Page 217] I 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 is [Page 218] 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.

Wolastone 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 thing [Page 220] 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.

As a licence to hunt in my Park, or to walke in my Garden; extendeth onely to himselfe and not to his servants or other in his company, for it is but a thing of pleasure, otherwise it is of a licence to hunt, kill and carry away the Deer, for that is a matter of profit, 13. H. 7. 18.

A way granted to a Church over my land, exten­deth not to any other but to himselfe, for it is but an easement 12. H. 7 25. b.

A reversion granted to two joyntly, and the meant attorneth to one, it is a void attornement, 11. H. 7. 12. b.

If the Sheriff be-head one should be hanged, it is felony, 35. H. 5 58. b.

The King licenceth one to alien the third part of his land, and he alieneth all, it is a void alienati­on for all, 4. E. 6. 68. b.

A lease is made to A. and B. for their lives, A: dieth, B. shall have all during his life, for it is an interest; but if a lease be made to I. S. during the life of A. and B. there if one of them die, the estate is utterly determined, for that is a limitation.

A licence to come to my house to speak with me, 9. E. 4. 4. b. or goods bailed over to deliver to I. S. 1. E. 5. 2. or to bestow in almes, Dyer 22. or a let­ter of Attorney to deliver seisin, Perkins, all these may be countermanded before they be done, because they be matters of trust.

Bur if I present I. S. to a Church, I cannot after­wards vary and present a new, for a kind of interest passeth out of me, 14. E. 4. 1.

So if I deliver an obligation as an escrowe into a strangers hand, to be delivered to the obligee upon condition performed, I cannot recall it, for the ob­ligee is as it were a party, and privy to the delivery, Perk. 19. b.

Nemo tenetur prodere seipsum, Ployd. f. 32. b. The Law will not enforce any one to shew that which is against himselfe. As if a man grant to one an Annuity pro consilio impendendo, the Grantee shall [Page 222] have a Writ of Annuity, without shewing that he hath given him Counsell, for the shewing of it is not for his benefit, and the deniall Counsell go­eth in defeasance of the Annuity, which ought to be shewen by the Plaintiff, because he shall have the benefit of the defeasance, M. 39. H. 6. f. 22.

So in 15. H. 7. f. 1. It is holden, if an Annuity be granted to one untill he be promoted to a bene­fice, he shall have a writ of Annuity, and shall not shew that he is not advanced to a benefice, for that goeth in defeasance of the Annuity, which must be shewen by him who shall take advantage of the defeasance, but there it is holden, that if he had granted, that if the party had first done such a thing, that then he shall have an Annuity, that there he ought to shew the performance of the thing in his count, to enable him to the Annuity, in that the condition precedeth the estate, and enableth him to to the estate, and so the diversity, vide ibidem plura, in Colthirsts case.

Nemo tenetur turpitudinem suam detegere, Reg. I C. No man is bound to bewray his own shame and crime, and therefore the Law is, that if a man for feare or simplicity will confesse himselfe guilty of a Felony, yet the Judges must not record that con­fession, but suffer him to pleade not guilty, Finch. Nomos. f. 29.

Accusare nemo se debet nisi coram Deo: Vasques, no man ought to accuse himselfe but before God, and therefore no man ought to be enforced to sweare a­gainst himselfe before man, and the reason thereof is given by Coke l. 4. f. 9. 5. Slades case. Jurare in propria persona est saepenumero in hoc seculo praecipitium diaboli ad detrudendas miserorum anim is ad infer­num, to sweare in his own person is oftentimes in this world the precipice of the Devill to cast downe the soules of miserable men into hell, and therefore in debt, or other action where wager of Law is ad­mitted by the Law, the Judges without good ad­monition, or due examination of the party, doe not [Page 223] 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 the [Page 224] 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 Lord [Page 225] 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 within [Page 226] 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 who [Page 227] shall deliver the writing doth not require it, he shall be bound by the Deed, though it shall be contrary to his meaning, and it mattereth not though a meere stranger readeth the writing, which is well proved by the usuall forme of pleading in such case, to wit, that he was a Lay-man, and not lettered, and that the Deed was read to him in other words, &c. generally, without shewing by whom it was read, Coke l. 2. Thorowgoods case, f. 11. b.

If a disseisor dye seised, the Disseissee being within age, Covert Baron, in Prison, or out of the Realme, it shall be no descent to take away the en­try, Finch. Nomot. f. 26.

In omnibus fere minori atati succurritur, Coke l. 9. 84. In all cases for the most part, there is favour shewed to them within age. As,

In a writ of customes and services, (which is in the nature of a writ of right in which finall judgement shall be given) against an infant who is in by des­cent, in 6. H. 3. Tit. page 144. It is adjudged he shall have his age, so in a Cessavit against an infant who hath the tenancy by descent, he shall have his age, though it be upon his own cesser, because he cannot know what arrearages he shall tender before judge­ment, and that also is in the nature of a writ of right, for if he make not true tender he shall lose his Land, 28. E. 3. 99.

But in a per quae servitia against an infant, who hath the tenancy by descent, he shall not have his age, because he hath benefit, and availe over and above the Premisses, and therefore is he called tenant paravaile, and it is against reason, that when the heire hath profit by the tenancy, that he shall not pay annuall rent, and it is no mischeife un­to him, for notwithstanding his Attornement within age, he may at his full age disclaime to hold of him, or to acknowledge that he holdeth of him by lesser or other services, Coke ibidem. And regularly it is true, that an infant may doe any thing for his own advantage, and not to his prejudice, as to be an [Page 228] Executor, or to purchase without the consent of any other, for it is intended his benefit, and at his full age he may either agree thereunto, or perfect it, or without any cause alledged, waive or disagree to the purchase, and so may his heire if he doth not agree at his full age, Coke com. f. 2. b.

In a writ of mesne the proceedings shall not be stayed for the nonage of the infant, because it is not reason that the infant shall be distrained for the services of the mesne during his nonage, and shall not have remedy untill he is at full age, Coke l. 9. f. 85. a.

If an infant make a Feoffment in person, if he dye without heire, the Land shall not escheate, but otherwise it is if it be by letter of Attorny, Dyer f. 10. Coke l. 4. f. 125. a.

An infant shall sue by procheine amy, but defend by guardian, Coke com. f. 135. a.

If an infant buyeth Lands in fee, with the mony for which he did sell his own Land, yet may he a­void his own alienation, Doct. Stud 21.

An Execution, Elegit, and Statute Merchant, &c. shall not be sued against the heire during his infan­cy, Coke com. 290. a.

An infant shall avoid matters in faite, either within age, or of full age, but matters of Record, as Statutes, &c. acknowledged by him, a fine levied by him, or recovery against him by default in a re­all action, must be avoided by him during his mi­nority, to wit, Statute by Audita querela, and the fine and recovery by a writ of error, because they are judiciall acts, and taken by a Court, or a Judge, and therefore the nonage of the party to avoid the same shall be tryed by inspection of Judges, and not by the Country, and because his nonage must be tryed by inspection, this cannot be done at his full age, but if that age be inspected by the Judges, and recorded that he is within age, albeit he come of full age before the reversall, yet may it be reversed after his full age, Coke com. f. 380. b.

The Law doth provide for the safety of a mans or womans estate, that before the age of twenty one years they cannot alien any Lands, Goods, or Chattells, or bind themselves by deed, Coke com. f. 171. b. Unlesse it be for necessary meate, drink, and apparrell, necessary physick, and such other necessa­ries, and likewise for his good teaching and instructi­on, whereby he may profit himselfe afterwards, but it must be pro 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 be [Page 230] served, then the priviledge of he infant, so the publicK repose of the Realme shall be preferred be­fore the priviledge of infancy in the case of a fine, where the fine beginneth in the time of the Ance­stor; As if a fine be levied before the act of non-claime, and one of full age had right at the time of the time levied, and dyeth within the yeare, and the right descendeth to the heire within age, he shall be bound to that yeare commenced in his Fa­ther, and his nonage shall not availe him there, because his Father was of full age, Ployd. 372. a. So non-claime of a villaine of an infant by a yeare and a day, who hath fled into ancient demesne, shall take away the seisure of the infant. And if an infant bringeth not an appeale within a yeare and a day, he is barred of his appeale for ever, for the Law respecteth more liberty and life then the pri­viledge of infancy.

If the King be seised of Lands, and the Land des­cend to the successor, this shall bind an infant for that the priviledge of the infant, in this case holdeth not against the King, Coke com. f. 246. a.

Though it be regularly true, that no laches shall be adjudged in infants, for not entry or claime to a­void descent, yet laches shall be accounted in him for not performing a condition annexed to the State of Land, for the laches of an infant for not performing a condition annexed to an estate, either made to his Ancestor or himselfe, shall bar him of the right of the Land for ever, as if either of them be enfeoffed reserving a rent, and for default of payment a re-entry, the laches of either of them in not paying the rent shall disinherit either of them for ever. But if a man maketh a feoffment in fee to another, reser­ving a rent, and that if he pay not the rent within a month, ne shal double the rent, and the feoffee dyeth his heir within age, and the infant payeth not the rent, he shall not for this laches forse it any thing, for that the infant is provided for by the Statute, non current usurae contra aliquem infra aetatem existentem, Merton, C 31.

An infant is impleadable in Law, and for his contempt shall be punished as a man of full age, as an outlawry returned against an infant is good, and not erronious so as he hath passed the age of fourteen years, 2. H. 5. Dyer 104. b. and 3 H. 6. An infant was forced to answer upon breach of a pro­hibition in an estreapment.

An infant is bound by any Statute Law, if he be not expresly excepted in it, as in fore-judger, recovery in Cessavit, and fines with proclamations, Doctor Student, c. 45. 147. And that if he had not been ex­cepted in those Statutes, they should have bound him, an infant prayeth to be received, and it is tra­versed, he shall find sureties of the meane profits as an heire of full age, Dyer 104. b. An infant under the age of fifteen cannot wage Law either for a debt, or default of any reall action, Office of Exec. f. 346.

If an infant be garden of a prison, and suffereth a prisoner to escape, he shall pay the debt because the Statutes are generall, and by that reason he may by a penall Statute loose his Goods, Doct. and Stud. C. 46. 147.

If one enter into a freehold of an infant with his consent, this is a disseisin, because an infant cannot consent to an entry. An infant under one and twen­ty cannot be a Bayliff, receivor, for want of skill, or ability, nor yet sworn in any Enquest, or Jury, and is uncapeable of a Stewardship of the Court of a Mannor in possession, or reversion, or any office concerning the administration of Justice, Coke com. f. 3. b. 157. a. And not capeable to performe grand Serjeanty at the coronation, ibidem, 107. b.

Actus non facit reum nisi mens fit rea, Coke com. f. 247. b. The act doth not make one guilty unlesse the mind be guilty, and therefore if an infant under the age of discretion, commit an act amounting to a Felony, shall stand free from the attainder, and pun­ishment incident to a Felon, but if he be of the age of discretion, though he be not of full age he shall [Page 232] 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, [Page 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, [Page 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 commit [Page 235] 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 not [Page 236] 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. B. 232. and therefore the King of right ought to have, and to order him, his Lands, and Goods, and this was by the common Law, as appeareth by Britton f. 16. who writ in the fifth yeare of Ed. 1. before the [Page 237] Statute de prerogativa regis, which was made in the seventeenth year of E. 2. a long time after Britton writ, which was but a declaration of the common Law, Coke l. 4. f. 126. a. Neither doth this impugne the Maxime of the common Law, for in this case he that is non compos mentis, in no Plea that he pleadeth shall stultify or disable him­selfe, but all this shall be found by office by the inquisition and verdict of twelve men, at the suite of the King, who are not concluded to say the truth, and such and office when it is found shall have relation, a tempore nativitatis, to avoid all mesne Acts made by one who is non compos men­tis, as Feoffments, Gifts, Leases, Releases, &c. And after such office found if he be sued in an Action upon an obligation, or writing which he hath made, the King by his writ so long as the office be in force, reciting the office, shall command a Supersedeas to the Justices where the suite is com­menced, but if one of non compos mentis dye before office found, after his death no office may be found, and in this sense is the rule of Bracton true, furio­sus stipulari non potest nec aliquid negotium agere, quia non intelligit quod agit. A mad man cannot promise or contract for any thing, or doe any busi­nesse, because he understandeth not what, he doth, but all such Acts may be avoided either by the King or his Heires, Coke ibidem. f. 126. a. b. With which the civilian rule accords, furiosus nullum negotium contrahere potest.

But in case of non compos mentis, the King hath not any interest in the Lunatick, as he hath in the Idiot, for that the Lunatick may recover the memory which he hath lost, and therefore in the case of an Idiot, the Law saith, Rex habebit custo­diom, the King shall have the custody, but in the case of non compos mentis, Rex providebit, the King shall provide one to have a care and charge, that he that is non compos mentis, [Page 238] and his family shall be maintained, and that no­thing shall be spoiled, without taking any thing to his owne use, but all to the use of the non compos mentis, and his family, and that he shall not cut down trees but for necessary House-boot, Plow-boot, and Cart-boote, and to repaire ancient Pales, as ap­peareth in the case of Dyer, 25. b. In Trespasse a­gainst Homes, quare clausuum fregit, and did cut down Trees in Padington, &c. of one John Francis, &c. the Defendant pleaded, that the said John Francis was a Lunatick, by which the King seised his Lands by commission, &c. and by his Letters Patents granted custodiam & gubernationem praedict, Fr. sine computo reddendo, the custody, and government of the said Francis, without rendring an account, &c. and he prayed aid of the King, and upon demurrer it was denied, and the diversity taken between the seiser of the Lands of a Lunatick, and an Idiot, for in the first case the King nor the Grantee shall not have any profit, but they are bound to finde ne­cessaries for him, &c. by the prerogative of the King, but in the other case, the King and his Gran­tee shall have the Lands to his own profit, and Fitz­berbert held that the Lunatick should have an ac­count when he came to his good memory, sed fuit ne­gatum, Ibid. f. 26. Pl. 164. But it seemeth by Coke lib. 4. f. 127. that he shal be accountable as a Bayly to him that is not compos mentis, or to his Executors, or Ad­ministrators. And the King shal have the protection of an infant as well as of his Land, F. n. b. 232. b.

But the King shal not have the lands that the Idiot holdeth by copy, for that is but an estate at wil by the common law, and if the King should have the custody of it, it should be a grand prejudice to the Lord of the Mannor, and yet notwithstanding an alienation made by the Idiot of the copy-hold after Office found, shall be avoided, Dyer 302. Coke ibidem, f. 126. b.

But there are some acts done by a man of non com­pos mentis, that shall not onely bind himselfe, but [Page 239] his Heires and Executors also, and therefore if he levy a fine, or suffer a common recovery, or acknow­ledge a Statute or Recognisance, neither his Heire nor Executor shall avoid it, for those are matters of record, and cannot be avoided by a nude averre­ment of non sanae memoriae, for the inconvenience that thereupon may ensue, also such an averrement is a­gainst the office and dignity of a Judge, for he ought not to take any cognisance of a fine, or re­cognisance of him that is non compos mentis, and therefore all acts that he maketh in Court of record shall bind himselfe, and all others for ever, and shall not have a releife in equity, because it is against a ground and principle in Law, that no man shall disable himselfe, and if the Judge were not compos mentis, yet all the Fines, Judgements, and all other Records which are before him shall be good: because they are matters of Records, Cbichell, Copy-holds.

Vim vi repellere licet, Coke com. f. 162. It is law­full to repell force by force, and that by the Law of nature, according to the civil rule, adversus periculum naturalis ratio permittit se defendere, naturall r [...]son permitteth to defend himself against danger, which is manifest in Beasts, which though they have not the substance and reason of the Law, yet have they a certaine shadow of it, and which is not onely ob­served in Beasts, but also in infants, and chil­dren.

But yet as Coke in the same place saith, must it be done with this caution, moderamine inculpatae tutelae, non ad sumendam vindictam, sed ad propulsandam in juriam, with the moderation of an unblameable de­fence, not thereby to take revenge, but to repulse the injury.

In trespasse of an assault and battery for Beasts taken, the Defendant said, that to all but the as­sault he was not guilty, and for the assault he said, that before the trespasse the Defendant was posses­sessed of an horse, as of his proper Goods, and of it [Page 240] was possessed till the Plaintiff took it out of his pos­session, and the Defendant the same day and year requested it of the Plaintiff, but the Plaintiff said that he would not deliver it, and the Defendant said, if he would not deliver the horse to him, he would retake it in spite of him, and presently took a staff which was lying on the ground, and went towards the Plaintiff with it, which is the same assault, of which the Plaintiff hath conceived his Action: Judgment if Action, and the opinion of the Judges was, that the assault was justifiable, Kelloway, 22. H. 7. f. 92. If two fight together on a suddaine, and before a mortall wound be on either party, the one flyeth to the wall, or to some other unpassable place to save his life, and upon the pursuit of the other he killeth him, this is man-slaughter in his own defence, 3. E. 3.284.

From morall Philosophy.

NExt in order succeeedeth morall Philosophy, the exact knowledge of which, as Picolo­nomy, Inductio ad libros Civil. Philos. cap. 6. cannot be comprehended without the pre­cognition of the naturall, and therefore hath the precedency, for the morall faculty doth instruct men to avoid vices, and to cure the maladies of the mind, which cannot be compleatly accomplished without the naturall contemplation of the affe­ctions of the soul, it is called Ethica by the Phyloso­pher, or institutions of manners, by which the ob­lique manners of men are rectified, and their Enor­mities regulated, and certainly from such exorbi­tances of manners originally proceeded the institu­tions of Lawes, and from whence, as Doderidge, all Laws are in generalty derived, for in the primary age (which may rather be named the Iron, then the golden age) when men lived like beasts,Dod. Eng­lish Lawy­er. f. 250. the one praying on the other, according to the censure of the Philosophicall Poet.

Then were Laws first excogitated to suppresse the barbarous Savageness of such humane beasts, and to reduce them to a more civill association, as the Venusine Poet rightly,

Seeing then Laws were introduced, from the de­praved judgements and corrupt manners of men, who will not acknowledge that the science by which they are formed, and the principles deduced from it, are requisite and materiall to the fundamentall knowledge of the Law; From which Fountaine our Law doth draw these grounds and maximes.

Illud possumus, quod jure possumus, Reg. I.C. We can doe that which by right we can doe, for as Boe­tius, potentia non est nisi ad bonum, ability and power is not but to good, for the power to have liberty to doe wrong, is not by such liberty augmented, but diminished, & potentia injuriae est impotentia natu­rae, the power to doe injury is the impotency of na­ture, as to decay, and dye, is no power, but in re­spect of the privation and diminution in the thing, is rather impotency, as the Angells and Saints con­firmed in glory and cannot sin, are more powerfull then man, who through his impotency can sin. So [Page 242] a King ruling royally, and with whom whatsoever shall please him, hath the power of a Law, and may doe what evill he lift is more impotent then he that doth all according to the rule and square of Law; and therefore doth the Law give this rule, Illud Rex solum potest quod de jure potest, Coke l. 3. 99. f. 123. & l. 1. 11. f. 7. Solum Rex hoc non potest quod non potest injuste agere. The King onely can doe that which by right he can doe, and the King can onely not doe this, that he cannot doe any thing unjustly, as 4. E. 4. 15. the King can be no disseisor, he can be no wrong doer, so if the King granterh and releaseth the services to the tenant and his heires, that shall not extinct the tenure in all, for necessity of the tenure, and the King cannot by his charter alter the Law, and therefore it shall be expounded as neere to the intention of the King as may be, and that is to extinguish all the services, but it onely which is incident inseperably to every tenure, and that is fealty, for it the King cannot doe by Law, Coke l. 9. f. 123. a.

And Coke l. 11. f. 72. a. The King shall not be exempt by construction of Law, out of the generall words of Acts made to suppresse wrong, because he is the Fountaine of Justice, and common right, and the King being Gods Lievtenant cannot doe wrong, and with it accordeth, 13. E. 4. 8. in the case of Alton woods, l. 1. f. 41.

So Lands were given to Henry the seventh, and the heires males of his body, and the question was, whether the King in regard that he was not ex­presly restrained by the Act of 13. E. 3. de donis conditionalibus post prolem masculam sussitatum, might alien, or no, and it was adjudged he could not alien, but was restrained by the said Act, for it were an hard argument to grant, that the Statute which restraineth men to doe wrong and evill shall per­mit liberty to the King to doe it, Ployd. f. 246. Sig­nior Barklys case, Coke ibidem vide plura.

Potestas regis juris est non in juriae, & cum sit author [Page 243] juris non debet inde injuriarum masci occasio, unde jura mascuntur, Bract. l. 2. The Kings power is of right, and not injury, and as he is the author of right, there ought not from thence to arise occasion of in­jury from whence rights proceed.

As if one who intendeth to sell his Land, and by fraude conveyed it by deed enrolled to the King, to the intent to deceive the purchaser, and then he selleth the Land to another for a valuable conside­ration, & maketh conveyance accordingly, in this case the purchaser shal enjoy the land against the Queen by the Statute of 27. Eliz. c. 4. For though the Queen be not excepted, yet the act being general, & made in suppressing of fraud, shall bind the Queen.

So if tenant in tail be seised of Land, the remain­der over in tail, or in fee, and he in the remainder knowing that tenant in tail will alien the Land, and by recovery bar his remainder, to the intent to deprive the tenant in tail of his birth-right, and power that the Law hath given him to bar the re­mainder, and of intent and purpose to deceive the purchaser, granteth his reversion to the Queen by deed enrolled, and then tenant in tail for a valu­able consideration alieneth the Land by common recovery, and dyeth without issue, the purchaser shall enjoy the Land against the Queene, by the Statute of 27. Eliz. the words of which are, that every conveyance, &c. made, &c. to the intent and of purpose to deceive a purchaser, &t. shal be deemed onely against such purchaser, &c. to be utterly void, vide ibidem plura, in Magdalen Colledges case, & l. 2. in Cholmlys case, f. 51.52.

And the King hath a prerogative above all his Subjects, that where by fraude, or salse suggestion he is deceived, that he in that case shall avoid his owne grant, jure regio. 22. E. 3. 47. in the Earle of Kents case, Stanf. pr. regis. 84. a. As the King can neither doe himselfe injury nor others.

And therefore the Law favoureth right, and con­strueth all things according to right, from whence proceedeth the ground.

Constructio juris non facit injuriam, Coke, com. f. 183. a b. The construction of right, or Law doth no injury.

As though it be a maxime in the Law, that every mans grant shall by construction of Law be taken most strongly against himselfe, yet is it so to be un­derstood that no wrong be thereby done, for it is another maxime in the Law, that the construction of the Law doth no injury, and therefore if tenant for life maketh a lease generally, this shall be taken by construction of Law, an estate for his own life that made the Lease, for if it should be taken for the life of the Lessee, it should be a wrong to him in the reversion, and so it is if tenant in tail maketh a Lease generally, the Law shall contrive this to be such a Lease as may be lawfully made, and that is for terme of his own life, for if it should be the life of the Lessee, it should be a discontinuance, and consequently the State which should passe by con­struction of Law should work a wrong, Ibidem.

When two are in one house, or tenement, and one layeth claime by one title, and another by ano­ther, the Law shall adjudge him in possession, that right hath to have the house, or tenement, Little­ton.

Coke com. f. 206. a. b. It is a generall rule, that whensoever the words of a deed, or of the parties without deed, shall have a double intendement, and the one standeth with Law and Right, and the other is wrongfull, and against Law, the intendment which standeth with Law and Right, shall be taken: As if tenant in Fee-simple maketh a Lease of Lands to B. to have and to hold for terme of life, without mentioning for whose life, it shall be deemed for the life of the Lessee, for it shall be taken more strongly against the Lessor, for an estate of a mans owne life is higher then for the life of another, but if tenant in tail maketh such a lease, without ex­pressing for whose life, this shall be taken for the life of the Lessor, for the reason abovesaid, and [Page 245] also because the Law which abhorreth injury and wrong, shall never so conster it, as it shall work a wrong, and in this case if it should be for the life of the Lessee, the estate should be discontinued, and a new reversion gained by wrong, ibidem.

Where tenant in tail maketh a Lease to another for terme of life generally, and after releaseth to the Lessee and his heires, albeit between tenant in tail and him, a Fee-simple passed. It hath been adjudged, that after the death of the Lessee, the entry of the issue in tail was lawfull, which could not be, if it had been a Lease for the life of the Lessee, for then by the release it had been a dis­continuance executed, Coke com. f. 42. b.

The Law more respecteth a lesser estate by right, then a larger estate by wrong, as if tenant for life in remainder disse [...]se tenant for life, now he hath a Fee-simple, but if tenant for life dyeth, now is his wrongfull estate in fee by judgement in Law chang­ed into a rightfull estate for life, Coke com. f. 41. &c.

If a man retaine a servant generally, without ex­pressing any time, the Law consters it to be for one yeare, according to the Statute, 23. E. 3. C. 1.

And for the same reason, what is contrary to right and good manners is void in Law, according to the rule of the Civilians, Contra jus, & bonos mores con­ventiones hominum non valent, which accordeth with the ground of the common Law, quod contra legem fit proinfecto habetur, whatsoever is done contrary to to Law or right, is accounted not done, Coke l. 3. f. 74. quod vide.

As if a man maketh a Feoffment in fee, upon con­dition he shall not alien, this condition is repug­nant, and against Law, and the state of the feoffee absolute, Coke com. f. 206. b.

A Feoffment to A.B. his Heires and assignes, with proviso, that he shall not alien to no person, is void, but that he shall not alien to I.S. is good, for upon the matter he hath given the Land to him, [Page 246] and his Assignes except to I. S. Ployd. f. 77. a.

So if a man maketh a Feoffment in fee, upon con­dition that the feoffee shall not take the profits, this condition is repugnant, and contrary to Law, and the State is absolute, Ibid.

If a man be bound with a condition to enfeoff his wife, the condition is void and against Law, Ibi­dem.

A man giveth Land to two sisters, and the heirs of their bodies, under this forme, that she which lived longest should hold the Land wholly, which is void because it is contrary to Law, for if the joyn­ture be severed by fine, the survivor shall not have the other part, 8. Ass. Pl. 33. Coke l. 1. in Corbets case.

So if a man maketh a Lease, upon condition that if the Lessor granteth the reversion he shall have fee, if the Lessor granteth the reversion by fine, he shall not have fee, because it is repugnant to Law, 6. A. 2. Pl. 28. Pletingtons case.

The Testator maketh a Lease of his house, and certain implements in it, for years, rendring Rent to him, and to his Heirs, and Assignes, The Execu­tors received the Rent continually after the death of the Testator. The question was, whether it was Assets or no, and by the Judges adjudged no assets, because the whole rent appertained to the heire, Dier 360 b.

An obligation taken by the Sheriff colore officij of any one in their custody by course of Law, with a condition then for the appearance at the day men­tioned in the processe, is void, because it is against the Statute of 23. H. 6. Coke l. 10. in Beawsages case, vide ibidem plura.

And it is commonly holden, that if the condition of a bond be against Law, the bond it selfe is void, Coke com. 206. b.

But herein the Law distinguisheth between a con­dition against Law, for the doing of any act is malum in se, and a condition against Law, because it is [Page 247] either repugnant to the State, or against some max­ime, or rule in Law, and that common opinion is to be understood of conditions against Law, for the doing of some act is malum in se. As if a man be bound upon condition to kill I. S. the bond is void, for an unlawfull condition is not of effect to gaine any thing by doing of it in our Law, Ployd. f. 34. b.

But otherwise it is in a Feoffment upon con­dition, for a Feoffment upon condition that the Feoffee shall kill I. S. the Feoffment is good and ab­solute, and the condition void, Ployd. Brownings case, 135.

And though all Feoffments upon conditions re­pugnant to Law, are void, in bonds it is otherwise, for a bond upon such conditions is good.

As if a Feoffee be bound in a bond, that the Feoffee and his Heires shall not alien, the bond is good, yet he may notwithstanding alien, if he will forfeit his bond that he himselfe hath made.

So a bond with condition, that the Feoffee shall not take the profits, is good, so a bond upon con­dition to enfeoff his wife is good, though it be a­gainst a maxime in Law, Coke com. f. 206. And if the husband be bound to pay his wife mony, the bond is good.

Non valet impedimentum quod de jure non sertitur effectuum, Reg. I. C. Coke l. 4. 31. a. The let or im­pediment availeth not, which taketh not his effect from the Law, as if the Lord be disseised, and the disseisor dyeth seised, or if the Land be recovered from him by verdict, or erronious judgement, in these cases untill the Land is recovered, or the judg­ment annihilated by the Law, the land is not demi­sable, and yet after the land be re-continued, it is grantable againe by copy, but if copy-hold lands be forfeited to the Lord, or escheate, and before any new grant made, those lands be extended upon a Sta­tute or Recognisance acknowledged by the Lord, or if the wife of the Lord in a writ of dower hath [Page 248] that land assigned to her, though those impedi­ments be acts in law, yet for that that those in­terruptions are legall, the lands shall never after be granted by copy, ibidem.

The words of an Act of Parliament must be taken in a lawfull and rightfull sense, as where by the Sta­tute of Gloucester, it is forbidden, that the husband shal not alien the lands he hath in right of his wife, whereof no fine is levied in the Kings court; those words are to be understood, where no fine is law­fully levied in the Kings Court, and therefore a fine levied by the husband alone is not within the mean­ing of that Statute, for that fine should worke a wrong to the wife, but a fine levied by the husband and wife is intended by the Statute, and that is lawfull, and worketh no wrong, for generally the rule is non praestat impedimentum, quod de jure non sortitur effectum, so the Statute of W. 2. c. 5. Ita quod epis­copus ecclesiam conferat, is construed, ita quod episco­pus ecclesiam legitime conferat, Coke com f. 361. b.

Nullam iniquam in jure praesumendum, Coke l. 4. f. 71. No injurious thing is to be presumed in the law, for the law so abhorreth injury, that it gran­teth writs of anticipation to prevent them, quia ti­met, because a man feareth them, and that before any molestation, distresse, or impleading, and there are six sorts of such writs, first a man may have his writ of Mesne before he be distrained, 2. a Warrantia Cartae before he be impleaded, 3. a Monstraverunt before any distresse, or vexation, 4. an Audita quereta before any execution sued, 5. a Curia claudenda be­fore any default of inclosure, and is a ne Injuste vexes, before any distresse, or molestation, Coke com. f. 100. a. And such an Antipathy there is be­tween the Law and injury, that no injury is to be presumed in the law, and as Coke l. 10 f. 56. a. Odiosa & in honesta non sunt in lege praesumenda, & in facto quod se habet ad bonum, & ad malum, magis de bono, quam de malo praesumendum est, odious, and dishonest things are not presumed to be in the law, and in a [Page 249] deed or action which hath in it both good and evil, it ought to be more presumed of the good, then of the evill, as there in the case of the Chancellor of Ox­ford, it was resolved that covin and fraud shall never be intended or presumed in the law, unlesse it be ex­presly averred, and in the case of Tier and Meriell, Trin. 10. Jacob. That if no fraude be found by the Jurors, the Judges shall not adjudge a Feoffment fraudulent, and that though the Jurors have found circumstances, and presumptions to intitle the Ju­rors to find fraude, it is but evidence to the Jury, and not any matter upon which the Court may ad­judge fraude, and the office of the Jurors is to ad­judge upon the evidence concerning matter of fact, and upon it to give their verdict, and not to leave matter of evidence to the Court to judge, which doth not appeare to them, as if A. bring an action of the case against B. upon trover and conversion, of Plate and Jewells, and the Defendant pleadeth not guilty, now it is good evidence to prove the conver­sion, that the Plaintiff requested the Defendant to deliver them, and he refused it, and by it it shall be presumed that he hath converted them to his use, yet notwithstanding that is but evidence, and if it be found by a speciall verdict that the Plaintiff requested them of the Defendant, and he refused it, that is not matter upon which the Court can ad­judge any conversion, for the conversion ought to alter the action of detinue into a trespasse upon the case, which a denier cannot in law make, for in e­very action of Detinue there is alledged in the count a request, and a refusall, yet it is good evidence, and hath allwayes been allowed to prove a conversion, that the Plaintiff demanded the goods, and the De­fendant refused to deliver them, Coke l. 10. In the case of the Chancellor of Oxford, vide ibidem plura.

Nomen non sufficit, si res non sit de jure aut de facto, the name of a thing is not sufficient, if the matter and substance be not of right or deed, Coke l. 4. f. [Page 250] 107. b. Pope Ʋrbane at the request of Ralph Baron of Greystack founded a Colledge, of a Master, and six Preists resident at Greystock, and assigned to every one of his Preists, five markes by the year, besides his Bed and Chamber, and the Master forty pounds by the yeare, and this certified in the Book of first fruits, and tenths, Rectoriam, & Collegium of Grey­stock, and the said Colledge was in being five years before the Act of 1. E. 6. And it was resolved by all the Judges that such a reputative Colledge was not given to the King by the Act of 1. E. 6. because it had no lawfull beginning, nor the countenance of a lawfull beginning, for the Pope cannot found, or incorporate a Colledge within this Realme, nor to assigne, or license others to assigne temporall li­vings to it, for it ought to be done by the King, and no other, for the name doth suffice, if the matter be not of right, or deed, Dier 81.

Quando duo jura in una persona concurrunt, aequum est ac si essent in diversis, Reg. I. C. Ployd. f. 368. a. when two rights concur & meet together in one per­son, it is all one, as if they were in severall persons.

As if one hath an estate for the life of A. the re­mainder to him for the life of B. the remainder to him for the life of C. and he is disseised, and the disseisor levieth a fine with proclamations, now by the present right he hath five years by the first fa­vant, and if after these five years A. doth dye, he shall have other five years for the next remainder by the second savant, which giveth them, as to other persons, which have a future right, and if after those five yeares B. doth dye, he shall have other five years by the other remainder, for saith he, it is the text of the civil Law, when two rights meet together in one person, it is all one as if they were in severall per­sons, Ployd ibidem, vide ibidem plura, in the Lord Zouches case.

Exception. Coke l. 7. Calvins case, f. 14. b. This rule holdeth not in personall things, that is, when two persons are necessarily and inevitably required by Law, as [Page 251] in the ease of an alien borne there is; for in the case of an alien borne you must of necessity have two severall legiaries to two severall persons; and no man will say, that now the King of England may make a League with the King of Scotland, and that because in the Kings person there concur two di­stinct Kingdomes, it is all one as if they were in severall persons, vide ibidem, f. 2.

Coke l. 4. f. 118. a. Though a Bishop when he is translated to an Arch-Bishoprick, or a Baron be created an Earle, now he hath both those digni­ties, and as it is commonly sayd, when two rights concurr in one person, it is all one as if they were in severall persons; yet the Act of 21 H. 8. was alwayes construed strictly against Non-residence, and Pluralities, as a thing much prejudiciall to the service of God, and the instruction of his people; and therefore within that Act: an Arch-Bishop shall have no more Chaplaines then as an Arch-bishop; or an Earle, then as an Earle, for though they have diverse dignities, yet is it but one and the same person to whom the attendance and ser­vice shall be made; and if a Baron be made Knight of the Garter, or Warden of the Cinque Ports, he shall have but three Chaplaines in all: Et sic de similibus, quia difficile est ut unus homo vicem duorum sustineat, because it is an hard thing for one man to undergoe or sustaine the Place and Office of two persons.

Coke l. 4. In the case of the death of one within the Verge, the Coroner of the houshold of the King, and the Coroner of the County, shall joyne in the Inquiry, and if one be Coroner of both, he shall well execute this authority.

Quilibet potest renunciare juri pro se introducto, Coke Comment. f. 99. a. Every man may renounce or refuse a Law made or brought in for himselfe: as a man seised of lands may at this day give the same to a Parson, Bishop, &c. and their successors in frank-almoigne, by the consent of the King and the Lords [Page 252] mediate and immediate, of whom the Land is hol­den, for every one may renounce a Law brought in for himselfe, and f. 223. b. The Statute of 32. H. 8. giveth power to tenant in tail, to make a lease for three lives, or twenty one years, yet if a man make a gift, in tail upon condition that he shall not make a lease for three lives, or twenty one years, the condition is good, for the Statute doth give him power to make such leases which may be re­strained by condition, and by his own agreement, for this power is not incident to the estate, but gi­ven to him collaterally by the act, according to that rule in Law, Quilibet potest, &c.

Coke l. 10. f. 101. a. In the Act of 23. H. 6. c. 10. the words, upon reasonable sureties of sufficient per­sons, are added for the security of the Sheriff, and therefore if he will take but one surety, be it at his perill, for he shall be amerced if the Defendant appeareth not, and for it the Statute doth not make the obligation void in such case, for the said branch which prescribeth the forme, requireth that the ob­ligation shall be made to the Sheriff himselfe, &c. by the name of their office, and that the prisoners shall appeare, in which clause no mention is made of the sureties, so as the intent of the Act was (that for that it was at the perill of the Sheriff) to leave it to his discretion to take one or more for his in­demnity, and peradventure it may be better for him sometimes to take one that is sufficient, then two others, and though the sureties or surety have not sufficient within the same County as the Statute mentioneth, yet the obligation is good enough, for those words of the Act as to that point are more for counsell and direction of the Sheriff, then for pre­cept and constraint to him, and that for the safety of the Sheriff, for if the Defendant cannot find two sufficient sureties, having sufficient within the same County, the Sheriff is not bound to let him to bail; and this resolution agreeth with the ancient rule, to wit, Quilibet potest, &c. An Orphant in London [Page 253] exhibited a bill in the Court of request against ano­ther, for discovery of part of his estate, Phesant pray­ed a prohibition upon the custome of London, but it was resolved, that he might sue in what Court he would, and wave his priviledge there, 19. C. B. R.

But this case extendeth not to any thing that is against the Common-wealth, or common right, Coke com. f. 166. a.

Summum jus, summa injuria, Ployd. 160. b. The rigor of the Law is the extremity of injury, if a man make a lease of a messuage, so as he may make his profit of his houses there within, he cannot abate the houses or make wast of them, by the opinion of the book, H. 17. E. 3. f. 7. for the intent was not such, though that the words seem otherwise, and sayd to pursue the words is Summum jus, which the Judges ought not to doe, but ought rather to pur­sue the intent.

And for the same reason the Executors of Tenant for life shall have reasonable time to remove his goods, after his decease: and a man shall have rea­sonable time, wherein he shall purchase a Writ of Journys accompt, Finch Nomot.

Jus descendit, & non terra, 20 H. 6. 5. The right descended, and not the land; and Coke Inst. f. 345. a. b. There is a right which includeth an estate in esse, in Conveyances, which he in reversion and remainder hath, and hath jus in re, and may be granted to a stranger with attornement, or released to him in possession, as if Tenant in fee-sample mak­eth a Lease for yeares, and releaseth all his right in the Land to the Lessee and his heires, the whole estate in Fee-simple passeth, and also the release to him in possession, with the reservation of a rent is good, and there is another right, which is called a bare, meere, and naked right, and jus adrem, when an estate is turned to a right by discontinuance, dissei­sin, abatement, &c. and of this right is the saying to be understood, that the right descendeth, and not the Land, which may be released to him in posses­sion, [Page 254] and this right is also called jus proprietatis; as if a man be disseised of an Acre of Land, the disseisee hath jus proprietatis, and the Disseisor hath jus possessionis, and if the Disseisee release to the Disseisor, he hath jus proprietatis & possessionis, Coke com. 266. a. but the reservation of a Rent upon such a release is voyd; as if the disseisee release to the disseisor of Land, reserving a rent, the reser­vation is voyd, Coke com. 144. b. Neither can a bare right, a right of entry, or a thing in action, be granted, or transferred to a stranger by the ancient maxime of the Common Law, Coke com. f. 166. for that thereby is avoyded great oppression, injury, and injustice; but if a bare right happen to be forfeited to the King, he may grant the same by his Prerogative.

Frustra est potentia, quae nunquam venit in actum, Vaine is the possibility which never commeth into act, Coke l. 2. f. 501.

There is jus proprietatis possessionis, & possibilitatis, and the right of possibility which dependeth upon the death of a man, hath a necessary and common intendment, to wit, necessary in regard that all the issues of Adam must dye, for statutum est omni­bus hominibus semel mori, and common, because the death may happen at such a time that the contin­gency may take effect; and this necessary and com­mon possibility is called potentia propinqua, which may come into act, and is not therefore vaine, or voyd in Law; as in 15 H. 7. 10. If Lands be given to a marryed man and a marryed woman, and to the heires of their two bodies ingendred, this is a good estate in tail, for it is of necessity that death shall ensue; and in common possibility that one shall dye before the other, so as the marryage may ensue; but in the same case there shall not be pos­sibility upon possibility: and therefore if land be given to one man and two women, there the Law shall not intend, that first he shall marry one, and then that shee that he shall marry shall dye, and [Page 255] that he shall espouse the other, and therefore in this case they have severall inheritances at the be­ginning, as if Land be given to two barons and their femes, and the heires of their bodies engen­dred, in this case the Law shall not expect second marriages, and therefore in this case they shall have joynt estates for life, and one baron and feme one moyety in tail in common, with the other ba­ron and feme of the other moyety, and so severall inheritances; and with it accordeth, 24. E. 3. 29. for otherwise there should be possibility upon possi­bility, and if a man give Land to baron and feme, there is an apparent possibility, that they shall have issue, but if after they be divorced, causa prae­contractus, so as the possibility is dissolved, the Law shall never expect the second marriage, for by the divorce they have but an estate of Frank-tenement, 4. H. 7. 16. 17. And a woman may enfeoff a married man, causa matrimonij prae locuti, for it is of necessi­ty that death shall ensue, and in common possi­bility, that the Feme of the Feoffee shall dye be­fore the Feoffee: So in the common case of a lease for life, the remainder to the right heires of I. S. the remainder is good for the necessary and com­mon intendement, vide ibidem plura, in Lampets case, Coke l. 10. f. 50. b.

For the Law respecteth the right of possibility, and will have nothing to be void that by possibility may be good: As a mesnalty is given in tail, reser­ving a rent, this is good, for the tenancy may es­cheate to the donee, and then the doner shall di­straine for all the arrearages, 1. H. 4. 2.

A man hath issue a daughter, and leaveth his wife privement enseint, the wife may detaine the Charters of her husbands Lands from the Daughter, for the possibility, it may be a Son shee goeth withall, 41. E. 3. 21. b.

But if A. be indebted to B. in two hundred pounds and delivereth goods to him to sell to pay his debt in the best manner he can, and he is proferred two hundred pounds for them, and refuseth, and after selleth them for an hundred pounds, A. shall an­swer the residue of the debt notwithstanding this possibility, 18. E. 4. 5.

But the possibility must be propinque, and a com­mon possibility, as death, or dying without issue, or coverture, or the like, but if it be a remote possibili­ty, the Law doth judge it vaine, because it shall not be intended by common intendement to happen, as a remainder to a corporation which is not at the time of the limitation and remainder, is void, though such a corporation was after erected, during the particular estate, for that was potentia remota, 9. H. 6. 24. For as Ployd. f. 345. a. b. It is a principle in Law, that all gifts, be it by devise or otherwise, they ought to have a donee in esse and not in posse, who hath capacity to take them given, when it ought to vest; as devise of Lands in fee, and so of goods, if the devise dye before the devisor, neither his Heire or Executor shall gaine any thing by this Will, vide ibidem plura, in Brets case.

So if a lease be made for life, the remain­der to the right heires of I. S. if at the limitation of the remainder there be not any such I. S. but during the life of tenant for life I. S. is borne and dyeth, his heire shall never take, as it is agreed in 2. H. 7. 13. And so in 11. E. 3. 46. the case was, that upon a fine levied to R. he granted, and rendred the tenements to one I. and F. his wife for their lives, the remainder to G. the Son of I. in tail, the re­mainder to the right heires of I. and at the time levied I. had not any son named G. but after he had issue named G. and in praecipe against F. it was adjudged that G. should not take the remainder in tail because he was not borne at the time of the fine levied, but long after, by which another who was right heire of I. S. was received, for when I. had not [Page 257] any son named G. at the time of the fine levied, the law doth not expect that he shal have a Son named G. after, for that is potentia remota, a remote possibili­ty. But if the remainder had been limited by a ge­nerall name, as to the right heirs of I. or primogenito filio, such a remainder might have been good for the common possibility. But if a remainder be contrary to Law, the Law shall never adjudge a grant good by reason of a possibility, or expectation of a thing which is contrary to Law, for that is potentia remo­tissime & vana, which by the intendement of the Law never cometh into act, Coke l. 2. f. 5. 2. n. b. in Sir Hugh Chomleys case, vide ibidem plura.

And hereby the way may pertinently be observed, that a possibility cannot be released, as if before judgement the Plaintiff in an action of debt, releas­eth to the baile in the Kings Bench all demands, and after judgement is given, this shall not bar thee to have execution against the baile, because at the time of the release he had but a meere possibility, and neither jus in re, or jus ad rem, but the duty is to commence after upon a contingent, and there­fore could not be released presently.

So if the Conusee of a Statute release to the Conusor all his right in the Land, yet afterward he may sue execution, for he hath no right to the Land till execution, but onely a [...] possibility, and so have I known it adjudged, Coke com. f. 265. b.

So if A. grant to B. that if he doe such an act, he shall have an annuity of twenty pounds during his life, before the Act done he cannot release the an­nuity, Coke l. 1. in Albanys case.

Lex semper dabit remedium, the law so favoreth right, that it will suffer things against the principles of Law, rather then a man to be without his remedy.

As a man who is outlawed may bring an action to reverse it, & an outlawry there is no Plea, 4. H. 7. 40.

The Tenant shall have a replevin against the Lord that did wrongfully distraine, though the beasts be come back to himself (because he can have no action of trespasse against him for that prisall) [Page 258] and shall recover damages for the tortious prisall F. n. b. f. 69. H.

A man (after judgement is passed against him) shall plead against the King a Charter of pardon, or any such thing done in the meane betwixt the verdict and the judgement, because against the King he can have no Audita querela, 11. H. 7.10. otherwise it is against a common person.

And therefore is it a principle in Law, cuicumque aliquis quid concedit concedere videtur & id sine quo res ipsa esse non potest, Coke l. 11. f. 52. a. Which Ploy­don thus expresseth, that it is held as a maxime, in 2. R. 2. in trespasse, that if any man hath interest to any thing by the grant, and assent of another, and the party who hath such interest cannot have the principall thing without doing the other thing, that he may doe the said other thing, and justify it, because it is a meanes to come to his profit, for there it is holden, That if one grant to me all his Trees growing in his Woods, I may cut them down, and carry them through all his Land, and though his Grasse be spoiled with the carriage, he shall not have a Writ of trespasse of it, for Trees are such things that if they be not carryed by Carts, he cannot have them, nor make his profit of them. But if one sell all his Fish in his Pond, and the Vendee dig a trench so as the water may run out, that by such meanes he may take the Fish, an action of trespasse will lye against the Vendee, because he might take the Fish by Nets, or other Engines, but if there had been no other meanes to take them, it had been otherwise, and to come to the banks to fish he may well justify it, for without it he cannot take them by any meanes, so as a man shall alwayes justify the necessary circumstance, where he hath title to the principall thing, Ployd, f. 15. & 16. a. vide ibidem plura, in Renigers case.

So when a Lessor in the Lease except the Trees and after hath an intention to sell them, the Law giveth to him, and to those who will buy them [Page 259] power as incident to the exception to enter, and shew the Trees to those who will have them, for without entry they cannot view, and without view they cannot buy, Coke l. 11. f 52. in Lisords case.

So 19. H. 6.29. A man seised of a mese in a Burrough, &c. devisable, deviseth it to his wife in taile, and that if his wife dye without issue, that his Executor may sell it, and it dispose for his soule, in this case the Executor may by the Law enter into the house, to see whether it be well repaired, or no, to the intent to know at what valew he may sell the reversion. And the Law giveth power to him who will repaire a Bridge, to enter in the Land, and to him who hath a Conduit within the Land of another, to enter into the Land for it, to mend as cause shall require, as it is resolved in 9. E. 4.35. Coke ibidem, vide plura.

And Coke l. 5. f. 12. a. If a man hath Mines hidden within his Land, and leaseth his Lands, and all his Mines in it, there the Lessor may dig for them, for quando aliquis quid concedit, &c. and this accordeth with 9. E. 4.8. that if a man lease his Land to another, in which there is a Mine, to wit, an hidden Mine, he cannot dig for it, and if he doe, it is wast, but if he lease his Lands, and all the Mines in it, it is otherwise, for the reason aforesaid, vide ibidem plura, in Saunders case.

If tenant at will soweth Corne on the ground, and the Lessor out him, he shall have free entry, egresse, and regresse to carry it away, for when the Law giveth any thing to any one, it giveth impli­citly whatsoever is necessary for the taking and en­joying of the same, and the Law driveth him not to an action for the Corne, but giveth him a speedy remedy to enter into the Land, and to take, and carry it away, and compelleth not him to carry it at one time, or to carry it, before it be ready to be carryed, and if the Lessee be disturbed of this way the Law doth give unto him, he shal have his action upon the case and recover his damages, for when­soever [Page 260] the Law giveth any thing, it giveth a reme­dy for the same, Coke com f. 56. a. If there be Lord, Mesne, and Tenant, and the Lord purchaseth the tenancy in fee, the mesnalty is extinct, but whereas the tenant held of the meane by five shillings, and the mesne of the Lord by twelve pence, so as he hath more in advantage by foure shillings, he shall have the foure shillings as a rent-seck yearly of the Lord, and yet he shall distraine for it, for seeing the mesnalty is extinct, the Law reserveth the distresse to the rent, for quando lex aliquid concedit, &c. And therefore if a man maketh a Lease for life, reser­ving a rent, and bindeth himselfe in a Statute, and hath the rent extended, and delivered unto him, he shall distraine for the rent, because it cometh to him by course of Law.

Multa constituuntur in lege, ne curia Domini Regis deficeret in Justitia exhibenda, Coke l. 7. f. 4. Many things are constituted in law, least the Court of the Lord the King should faile in doing of Justice, by the Statute of W. 2. c. 8. It is provided, that so of­ten as from henceforth there shall be found in the Chancery, that in one case there is found a Writ, and in the like case falling under the same right, and wanting the like remedy, no Writ is found, let the Clarkes of the Chancery agree in making a new Writ, &c. or at the next Parliament, let there be a Writ by the consent of the learned in the law, and the estate concludeth with the effect of the common law, Quod curia domini Regis non debet deficere conquerentibus in Justitia perquirenda, That the Kings Court ought not to be slack or deficient to the Complainant in seeking Justice, and there­fore if there be Lord and Tenant, and the tenancy extend into two Counties, in this case, if the rents or services be behind, the Lord may have severall Writs of customes and services, for each County a Writ, and shall have them retornable at one day [Page 261] in the common bench, and there upon count accor­ding to his case by the commmon Law, because o­therwise the Court of the King should be deficient to the Plaintiffs in seeking of Justice, Coke com. f. 154. a. and Coke l. 7. f. 4. a. b. vide ibidem plura, in Bulvers case.

If there be Lord, Mesne, and Tenant, and the Mesne doth truly his services paramount, and yet the Lord distraineth the Tenant paravaile for them, at that time the distresse is tortious, and the tenant is not distrained in default of the mesne, yet in this case if the tenant paravaile request the mesne to take his Cattle out of the ground, and to put in the proper Cattle of the mesne in place of them, or if the tenant had replevind his own Cattle, and requested the mesne to joyne, and to acquit him, and he refuse, by that matter ex post facto. the Law shall adjudge that the tenant paravaile was di­strained in default of the mesne, and in a Writ of mesne, the mesne shall plead not distrained in his default, and it shall be found against him, or o­therwise the tenant paravaile who is in no default shall have wrong, and yet shall be without remedy, and it is all one to the tenant, whether the distresse was wrongfull or right if he have not any di­stresse, 39. E. 3.34 &c. By which it appeareth that the Judges in those ages did endeavour to put the rule of W. 2. in execution, Curia Domini Re­gis non debet deficere conquerentibus in Justitia exhi­benda. Coke l. 9. f. 111. a. b.

And Coke l. 9. f. 88. b. The Executors (which in truth hath the Goods in anothers right, to wit, to pay the debts, &c. of the Testator) shall not con­vert them to their private use, without paying the just and true debts of the Testator, for that shall be against Justice and right, and against the Office of Executors, which are but the Ministers and dispensers of the Goods of the dead, and notwithstanding the death of the Testator, yet the debt remaineth, for death is not a discharge of debt, [Page 262] and it should be a great defect in Law that no re­medy shall be given for it, & curia domini regis de ficeret, &c. Coke l. 9. f. 88. b. And therefore an action upon the assumpsit made by the testator, shall lye against the Executors, because in such case the Testator could not gage his Law, for by it Justice and right is advanced, in that the creditor shall be paid his just and due debt, ibidem.

So Coke com. f. 74. a. There are diverse manners of trialls appointed by the Law besides the common tryall by a Jury of twelve men upon oath, least the Court of the King should be defective in doing of Justice, as in the time of War out of the Realme, the tryall shall be by the certificate of the Marshall of the host in writing under his seale, which shall be sent to the Justices, so in the time of peace out of the Realme, as if it be alledged for avoiding an Outlawry, that the Defendant was in prison at Burdeaux, in the service of the Mayor of Burdeaux, it shal be tryed by certificate of the Mayor of Burdeaux, and in the like cases such tryalls shall be by the Marshall of the Army, or by a messenger of a thing done beyond the Seas, 2. Eliz. 176. In Barrys case. And for matters within the Realme, the custome of London shall be certified by the May­or, and Aldermen, by the mouth of the Recorder, likewise by certificate of the Sheriff, upon a Writ to him directed, in case of priviledge, if one be a Citi­zen or a Forrainer. And by tryals of Records, by certificate of the Justices in whose custody they are by Law. So in causes ecclesiasticall, as loyalty of marriage, generall Bastardy, Excommengement, Profession, and the reason, that tryalls by certificate are peremptory, because if the Court should re-exa­mine it, they have no other remedy, but to write to the same officer made the certificate, and it is not to be presumed, that they would differ from their former certificate, Bac. Max. f. 26.

A Lord of Parliament upon an enditement of treason, or felony, shall be tryed by his peeres with­out [Page 263] oath upon their honors and allegiances, but in an appeale at the suit of the Subject, they shall be tryed per probos, & legales homines juratores, 10. E. 4.6.8. Customes and Usages of every Court, shall be tryed by the Judges of the same Court, if they be pleaded in the same Court, 11. E. 4.2.9. In dow­er, an appeale brought of the death of her husband, or in Assise brought by the feme, which was the wife of B. if the Tenant or Defendant plead, that the husband is alive, the tryall shall not be by Jury, but by Justices upon Processe made before them for the greater expedition, 6. E. 3. 29. &c.

In a Writ of Error to reverse a fine for nonage, or in an Audita qu [...]rela to reverse a Statute, or Re­cognisance for nonage, there the age shall be tryed by inspection of the Judges, and not by the Coun­try, And so it is if tenant vouch A. as heire within age, and tenant for life vouch him in the reversion within age, and prayeth that the Plea may demurr, &c If an infant appeare by an Attorny, it is Error, and shall be tryed by the Coun­try, because the making of the warrant of Attorny is the act of the party, and yet the appearance of the Attorny is recorded in Court, but if the Plain­tiff maketh an Attorny in Court, and the Defen­dant pleadeth that the Plaintiff is dead, and one appeareth and saith, that he is the Plaintiff, which is denied by the other party, the Judges shall ad­judge, whether he that now appeareth be the same person, who at another time made the Attorny in Court, 34. H. 6. 43. And a maihme may be tryed by the inspection of the Court, 28. Ass. 38. If question be made whether they be summoners, and viewers which appeare, it shall be tryed by the examination of the Justices. 33. H. 6. 10.

So whether an Earle be an Earle, or a Baron a Baron or no, shall not be tryed by the Country, nor by the Justices, but by the writ of the King, Coke l. 5. in the Countesse of Rutlands case. And in Plea of an alien borne, the league between the King and [Page 264] the Soveraign of the alien borne shall be tryed by the record of Chancery, for every league is of re­cord, and generally all matters of record shall be tryed by the record it selfe, and not by the Coun­try, or otherwise, Coke l. 9. f. 31. vide de hoc plura ibidem.

And when a man is found an idiot from his na­tivity by office, he who is so found may come into the Chancery, before the Chancellor, and pray that before him or such Justices, or sages of the Law, he may be examined whether he be an idiot or no, or by his freinds may sue a Writ out of the Chancery, retornable in the Chancery, to bring him into the Chancery, there before us or our counsell to be ex­amined, and if he be found upon that examination not to be an idiot, the office so found, &c. is utter­ly void, without any traverse or monstrans de droit, or otherwise, F. n. b. 233.10. E. 3. Title Livery, 30.

An Apostate shall be certified by the Abbot, or other religious governor, to whom he oweth obedi­ence, F. n. b. 232.

In an appeale, or upon an approvement, the De­fendant may pleade not guilty, and try it with the Plaintiff by combat, or battaile in person, before the Justices▪ 9. Ass. Pl. 1. But the Defendant is re­strained from choice of battle, if there be any no­torious presumption of the fact in him, Finch. Nomo [...]. f. 422. vide ibidem plura.

And in a Writ of right, the tenant may joyne issue upon the meere right, and try it by combat or battaile by his champion with a free-man the champion of the demandant, and not in person be­fore the Justices, 9. E. 4.35. If it be in question which of the Sheriffs made such a retorne, it shall be tryed by the Sheriff, 9. H. 4.1. If question be made if such a one be Sheriff, it shall be tryed by the examination of the Sheriff himselfe, 10. H. 4.7. Yet is he made by Letters Patents on record, [Page 265] and therefore it also may be tryed by record, 32. H. 6.27. A retorne made by the under Sheriff, if it be denied, shall be tryed by the under Sheriff, and the Sheriff cannot disavow it, if he confesse him to be his under Sheriff, 10. H. 4.7. If an approver say that he commenced his appeale before the Coro­ner, by duress, that shall be tryed by the Coroner, and if the Coroner deny it, he shall be hanged, 12. Ass. 29.

Tryall, if the Statute shewed forth, be a true Statute, or no, shall be tryed by the examination of the Mayor, and Clerk of the Statutes who took the Statutes, F. N. B. 104. H.

In Assize the Tenant saith, that the Lands are taken into the hands of the King, it shall be tryed by the examination of the Escheator, 9. H. 4.1.

To a petit Cape the Tenant saith, that he was in Prison three dayes before, and three dayes after, it shall be tryed by the examination of the Attorny, 13. R. 2.22.

Not attached within fifteen dayes in an assize shall be tryed by the examination of the Bayly. So that the tenant was not summoned according to the Law of the Land, shall be tryed by Law-gager, and the Law-gager doth countervaile a Jury, for the tenant shall make his Law duodecima manu, to wit, by eleven besides himselfe, unlesse it be against a Corporation, for then it shall for necessity be tryed by the Country, because it cannot wage Law.

In a Writ of deceit upon a Recovery by de­fault, the tryall shall be (if the judgement was given upon the petit capit) by the Summoners, if upon a grand Cape by the Summoners, Pernors, and Viewers, 48. E. 3.11. So if a Recovery by default in a reall action be pleaded, and the other saith, not comprised, it shall be tryed by the Summoners, and Viewers, 10. H. 4.7. [Page 266] and yet their is no remedy if they speake falsly, and therefore ubi majus periculum ibi cautius est agen­dum, where there is a greater danger, there we ought to be more wary.

The cause of challenge shall be tryed by two try­ers to be appointed by the Justices, 9. E. 4.5. But the tryall of any one of the grand Jury shall be ta­ken by foure Knights. Tryall may be in debt upon a simple contract, detinue, &c. either by Law, gager, by the Defendant himself, or by the Country at the e­lection of the Defendant, 30. Ass. P. 19. Coke. l 9. f. 32.33.

And Coke. com. f. 74. If a Subject of the King be killed by another of his Subjects in a forraine Coun­try, the wife, or heire of the dead may have an ap­peale for that murder or homicide, before the Con­stable and the Marshall, whose sentence is upon testimony of witnesses or combat, and their pro­ceedings according to the civill Law, and not by the oath of twelve men, and so was it resolved in the twenty fifth of Elizabeth, in the case of Sir Fran­cis Drake who struck off the head of Dowty in par­tibut transmariuis, that his Brother and Heire might have an appeale, but the Queen would not consti­tute a Constable of England, and therefore the appeale was dormant. And Coke com. f. 261. b. By the Statute of 25. E, 3. De proditionibus, it is declared, that it is Treason by the common Law to adhere to the Enemies of the King within the Realme, and without, if he thereof be proveablement attaint of overt-fact, and that he shall forfeit all his Lands, &c. But least the common Law declared by Par­liament should be illusory, and that the Delinquent might not be attainted thereof, for necessities sake the adherency without the Realme must be alledg­ed in some place within England,, and if upon evi­dence they shall finde any adherency out of the Realme, they shall finde the Delinquent guilty, but most commonly they endited him if he had Lands in some County where the Lands did lye, [Page 267] that were to be forfeited, and so it is declared by the Statute of 35. H. 8. And that it shall be tryed by twelve men of the County where the Kings Bench shall sit, and determined before the Justices of that Bench, or else before such Commissioners, and in such Shire of the Realme as shall be assigned by his Majesties commission, and this Statute for this point remaineth in force at this day, and so was it resol­ved by all the Judges, 33. Eliz. in Orurks case, and 34 Eliz. in Sir John Perots case, for Treasons done in Ireland, for that it is out of the Realme of England.

I have been too copious in the exemplification of this ground by so many notable cases drawn on by the variety and curiosity of them, they being ex­orbitant from the beaten tract of the common Law, from which for the better effecting, and doing of right, the Law deemeth it convenient, and necessa­ry to swarve and deviate, and that in favorem juris et recti.

To add one example more, if an obligation be made beyond the Seas, and it beareth date at Bur­deaux in France, where shall it be sued? answere is made that it may be alledged to be made in quo­dam loco vocato Burdeaux in France, in Islington in the County of Middlesex, and there shall it be try­ed, for whether there be such a place in Islington or no, it is not traverseable in that case, Coke com. 261. b.

Executio juris non habet injuriam, Reg. I.C. & Ho­ba [...]t f. 266. The execution of the Law hath no in­jury. As if a man bringeth an action upon a false surmise in a proper Court, he cannot bring an action against him, and charge him with it as a fault dire­ctly, and ex diametro, as if the suite it selfe was a wrongfull act, for the execution of the Law hath no injury.

So Coke com. f. 161. a. It is regularly true, that a man shall not be punished for suing of Writs in the Kings Court, be it of right, or wrong, ibidem.

And therefore 11. Eliz. a man brought a Writ of forger of false deeds, the Defendant though he be found guilty, could not have a scandalum magna­tum, and lay the charge contained in the action to be the scandall, for no punishment was ever appoin­ted for a suite in Law, although it be false and upon vexation, vide Dyer f. 285. Pl. 37.

And so we rule it every day, that if a man be imprisoned upon a formall suit, though there were no just cause of suite, yet if he give a bond for his release, he shall not avoid it by duresse, because it is incarceratio legitima. Hob. 1. l.

And though every thing by nature is good, and as Saint Paul saith, The Law is good, if a man use it lawfully, yet the abuse of the Law is the fact, and therefore on the contrary part, if you charge me with a crime in a Court, that is no way cape­able of the cause, I shall have an action for it, and lay that very complaint to be the slander, as Coke l. 4. f. 14. b. Wood exhibited a bill in the Star-Chamber against Barkeley, and inter alia, charged him that he was a maintainer of Pirates, and Murderers, &c. B. brought an action of the case against W. and counted, that the said W. had exhibited a bill in the Star-Chamber containing inter alia, that the said B. was a maintainer of murderers and pyrates, &c. and it was resolved, that for any thing contained in the bill, which was examinable in the said Court, no action lyeth, although the matter was meerly false, because it was in course of Justice, but for the said words, not examinable in the said Court, an action upon the case lyeth, for that could not be in course of Justice, vide ibidem plura.

And if a man sue me in a proper Court, yet if his suite be utterly without ground of truth, and that certainely known to himselfe, and thus as the Civilians, it be done animo injuriandi, I may have an action upon the case against him for the undue vexation, and damage that he putteth me unto by his ill practise, though the suite it selfe be legall, but I cannot complaine of it as it is a [Page 269] suite, and therefore the sixteenth of E. 3. Fitz. de­ceipt, 35. A Conusee of a Statute sued execution a­gainst his deed of defeasance, whereupon the Co­nusor had an action of deceipt against him, and his Assignee, in the nature of an Audita querela, yet though he was imprisoned upon the Statute, could he not bring an action of false imprisonment, if he had paid the mony before the day limited by the defeasance, because he was imprisoned by course of Law, 43 E. 3.33.

And if a man sue me, and hanging that suite, commenceth another against me, to this I have a Plea in abatement, which proveth this latter suite unjust and vexatious, but if he discontinue the former he may bring a new action, 43. E. 3. for as Coke com. f. 130. a. It may be he hath mistaken some thing in that action, or was not provided of his proofes, or mistaking the day, or the like.

Likewise I hold I may have an action of the case against him, who sueth me against his release, or after mony duly paid, yea though it be upon a single obligation, Hob. ibidem.

But in these cases, these two cautions are to be observed, that the new action be not brought before the other be determined, because till then it can­not appeare that the other was unjust, 2. R. 1. And for this reason a Writ of conspiracy lyeth not untill the Plaintiff is acquitted.

The other is, that besides the thing done amisse, there must also be a damage either already suffered, or else inevitable, and therefore 19. H. 6.44. If a man forge a bond in my name, I can have no action of the case yet, but if I be sued I may, for the wrong or damage, though I may avoid it by Plea, but if it were upon a recognizance or fine, I shall have a deceit presently before execution, for Quae inconti­nente aut certo fiunt in esse videntur, and 43. E. 3. 10. deceit against one who procured a Formedon, by collusion, vide ibidem plura in Waterers case. And this rule faileth in a Writ of Replevin against the Lord, as if the Lord distraine for rent, [Page 270] and the tenant bringeth a Replevin, whereby the Lord is disturbed of the meanes to come to his rent, this is in Law a disseisin, Coke. com. f. 161. a.

Nullus commodum capere potest de injuria sua pro­pria, Coke com. f. 147. b. No man shall take ad­vantage of his own wrong, as if B maketh a lease of one Acre for life to A. and A. seised of another Acre in fee, granteth a rent-charge to B. out of both Acres, and doth wast in the Acre which he holdeth for life, B. recovereth in wast, the whole rent is not extinct, but shall be apportioned, and yet B. claimeth one Acre under A. and so it is if A. had made a Feoffment to B. in fee, and B. had entered for the forfeiture, the rent is not wholly extinct, but must be apportioned, and the reason hereof is, for that is a maxime of Law, that no man shall take ad­vantage of his own wrong. And therefore seing the wast and the forfeiture were committed by the act and wrong of the Lessee, he shall not take advan­tage thereof to extinguish the whole rent, and the whole rent cannot issue onely out of the other Acre, because the Lessor hath one Acre under the estate of the Lessee, and therefore it shall be apportioned, vide ibidem plura.

If a man be bound to appeare at a day before Justices, at which day the obligor casteth him into Prison, so as he cannot come, the bond is saved, otherwise if he were in Prison for Felony, or any other misdemeanor, for that is his own act and fault, 32. H. 6. Bar 60. Or if he cast himselfe into Prison, N [...]y. Max. f. 13. An infants appeale shall not stay for his full age, for he shall not take advantage of his own wrong, 27. H. 8. 11.

One in Execution escapeth, and the Goaler taketh him againe, the party if he will, may have him to remaine in Prison in execution for him still, for the escape is his own wrong, 13. H. 7. 1. So Coke l. 3. in Britons case. If one in Prison upon execu­tion escape, if he be taken he shall not bring an Au­dita querela to discharge himselfe of his imprison­ment, [Page 271] for he shall not take advantage of his own wrong. He that is party to a wrong, shall not take advantage by the same wrong, Perk. 41. b. As if Lessor and Lessee for yeares joyne in the cutting downe of twenty Oakes, the Lessor shall not punish him in a Writ of Wast, and take advantage of his own wrong. The heire which is party to the death of his Father shall not have an appeale of it.

And if issue in taile disseise the Discontinuee of his Father, and then enfeoff his Father, and his Father then dyeth seised, and the issue in tail enter, he shall not be remitted.

If Lessee for life of one Acre of Land, leaseth the same Acre to his Lessor for yeares, the remainder to a stranger in fee, and maketh livery and seisin to the Lessor accordingly, it is no forfeiture, Perkins ib.

If tenant for terme of life enfeoff the feme of the Lessor of the same Land leased, and maketh a Let­ter of Attorny to the Lessor to make livery and seisin, and he doth so accordingly, it is no forfei­ture, Perk. ibidem. f. 42. a.

If an house fall down by tempest, the Lessee for life or yeares, hath a speciall interest to take Tim­ber to reedify the same if he will, for his habitation, but if the Lessee pull down the house, the lessor may take the Timber as parcell of his inheritance, and besides have an action of Wast, and recover treble damages, Coke l. 4 f. 63. a. in Harlackendems case. A deviseth lands to B. untill eight hundred pounds be levied for the marriage of his daughters, his Son and Heire entreth, and concealeth the will & receiveth the profits before the will is discovered, then the devisee entreth, & receiveth the profits un­til they amount to six hundred and forty pounds, the heir is to supply the rent, for the heire shall not take advantage of his own wrong, Coke l. 4.

Dormit Lex aliquando, jus moritur nunquam, Coke com. 279. b. For as Littleton there hath it, it is com­monly said, that a right cannot dye.

For of such an high estimation is right in the eye [Page 272] of the Law, as that the Law preserveth it from death, and destruction, trodden it may be, but not trodden out, for where it hath been said, that a re­lease of right doth in some cases enure by way of extinguishment, it is so to be understood, as here Littleton saith, in respect of him that maketh the re­lease, or else in respect by construction of Law it en­ureth not alone to him to whom it is made, but to others also who be strangers to the release, which as hath been sayd, is a quality of an inheritance extinguished: As if there be Lord and Tenant, and the Tenant maketh a Lease for life, the remainder in fee: If the Lord release to the Tenant for life, the rent is wholly extinguished, and he in the re­mainder shall take benefit thereof, and even so when the heire of a disseisor is disseised, and the disseisor maketh a release for life, the remainder in fee: if the first disseisee release to the Tenant for life, this shall enure by way of extinguishment, be­cause it shall enure to him in the remainder who is a stranger to the release, and yet in truth the right is nor extinguished, but followeth the posses­sion, to wit, the tenant for life hath it during his time, and he in the remainder, to him and his heirs, and the right of the Inheritance is in him in the remainder, for a right to Land cannot dye, or be extinct in deed, and therefore if after the death of tenant for life, the heire of the disseisor bring a Writ of right against him in the remainder, and he joyne the Mise upon the meere right, it shall be found for him, because in Judgement of Law, he hath by the said release the right of the Disseisee, for it is commonly and truly said, that right never dyeth, but is transferred and conveyed by Feoff­ments, Grants, Confirmations, Prescriptions, or Fines, &c. releases from one man to another, so as the Species of it continually remaineth.

Res inter alios acta alteri nocere non debet, & factum unius alteri nocere non debet, Coke com. f. 152. b Things acted among others ought not to hurt either, [Page 273] and one mans deed ought not to hurt another, and Coke l 9 f. 59. It is the rule of Law, and reason, prohibetur ne quis faciat in suo, quod nocere possit in alieno, & sic utre tuo, ut alienum non laedas, it is for­bidden, least any one should doe that in his own, that may hurt another, and so use your own, that you injure not another. If a man hath a Water­course running in a channell of a River up to his house, for his necessary ules, and a Glover levy a Lime pit for Calve-skins, and Sheep-skins so neer his Water-course, that the corruption of the Lime pit hath corrupted it, by which his tenants goe out of his house, for it an action of the case lyeth, as is adjudged in 13. H. 6. 26. b. So he who hath seve­rall Piscaries in his own Water, shall have an action of the case against him, who erecteth a Dye-house, by which he maketh slime, filth, and other dirty things to run out of the said house, into the said Piscaries, by which he hath totally lost the profit of the said Piscaries, vide in the Book of Entries, Nusance. f 406. b. vide the same in Aldreds case, for erecting of a Swine-house, & plura alia ibidem. And so also in Penruddocks case, Coke l. 5. and in Batius case, l. 11. 54. Where you shall find diverse notable cases to the same purpose.

Lessee for yeares shall so take his hedge-boote, that he doth not destroy common of Estovers, which another man hath there, 46. E. 3. 17. He which hath common in Land not inclosed, shall keep his Cattle out of a stranges Land, 20 E. 4. 11.

If Beasts be driven by the high way, he ought at his perill to keep them out of the Lands adjacent to the high way, except in case where the Owner is bound to inclose, 4. E. 4 19. 10. E. 4. 7.

But if a man erect a wall, part on my Land, and part on his own, if I distroy that on my Land, and the rest by that meanes falleth downe, it is excu­sable.

If a Feoffment be made to two joyntly, one of them cannot dereigne the warranty without the o­ther, [Page 274] 48. E. 3. 17. Yet if a villaine and another purchase joyntly, and the Lord of the villaine en­ter into a moyety he may dereigne the Warranty alone, for therein the severance groweth by act in Law.

He that commeth into a Taverne, and will not goe out in reasonable time, or distraine for rent, and killeth the distresse, shall be a wrong doer, ab in­itio, 12. E. 4. 8. Because he misdemeaneth that the authority the Law giveth him.

Otherwise it is, if I lend my horse to one to ride to York, and he rideth him further, yet the riding further is not unlawfull, neither a generall action of Trespass lyeth against him upon the accord upon the case, because he misdemeaneth but the authori­ty that another hath given him, Finch. Nomot. f. 47.

If I be distrained and pay my rent, and after am denied to have my goods delivered, an action of Trespasse, or detinue lyeth, 21. H. 7.

If I deliver a chest to one, who breaketh it, Tres­passe lyeth, 2. H. 8. If a Sheriff maketh an arrest, and returneth not the Capias, an action of Trespasse lyeth, 8. E. 49.

An executor commandeth the taking of the goods of the Testator and refuseth to prove the will, a Trespasse lyeth, 8. E. 4. 9.

The Sheriff seiseth the goods of one outlawed, and doth not charge himselfe in account, the Out­lawry being reversed, or the party pardoned, he shall have an action of Trespasse against the Sheriff, 21. H. 7. 23.

Injuria illata incorpus non potest remitti, Reg. I. C. injury which is offered to the body cannot be re­mitted, and the reason given by the Civilians is, quia nemo membrorum suorum Dominus, because no man is Lord, and Master of his members, but the power of them appertaine to God our Creator, and the Prince our Protector, which accordeth with the reason of the common Law, which maintaineth, as [Page 275] Bracton saith, quod cita, & membra sunt in postate Re­gis, & as it is in the record of 19. E. 1. Rot. 36. vita & membra sunt in manu Regis, that the life and mem­ber of every Subject are under the safe-guard, and protection of the King, to the intent they may serve the King, and their Country when occasion shall be offered. Nay the Lord of a villaine for the cause aforesaid cannot maihme his villaine, but the King shall punish him for mayming of his Subjects by Fine, Ransome, and Imprisonment, untill the Fine and Ransome be paid, for that hereby, he hath disabled him to doe the King service, Coke com. f. 127. a.

And therefore also doth the Law more carefully provide for the preventing, and punishing of such forcible injury in particular between person and person, because as Coke com. f. 161. b. Max. paci sunt contraria vis, & injuria, forcible injuries are most contrary to the quiet, and repose of the Common­wealth, which is the publick felicity both of Prince and people.

As if one doe but menace another with a weapon, or staff, or if he stretch out his arme, or give any other token, whereby his intention of striking doth appeare, though never a stroake be given, yet is it actionable, 22. Ass. Pl. 60.

And upon an assault, the Writ was Quare insul­tum fecit, vulneravit & maihemavit, and though the injury did not appear to be a maihm, yet was it al­lowed, 43 E. 4. For the Law favoreth the Plaintiff in such Actions.

And though force be an enemy to peace, yet is it a maxime in our Law, Quod quisque in tutelam cor­poris sui fecerit, jure fecisse videatur, Fulb. l. 1. f. 91. whatsoever any one doth in defence of his body, it seemeth to be done by Law, according to the opini­on of the Poet.

As 2. H. 4 8. Bract. If any man beat me, I may lawfully beat him if I cannot escape without st [...]ips, wounds, or maihmes.

Nay, 9. E 4. 3. I may beate him in defence of my goods, or wife, contrary to the resolve of 43. Ass. 39. That it is not lawfull for me to beat him, if I may escape with my life.

And 9. E 4. A servant may justify a battery in defence of his Master, and 17. E. 4. 4. He that com­eth in company of him who maketh the assault, or cometh in to aid him, is a principall Trespassor, and if a Justice of Peace see a man doing of an assault, he may presently arrest him by commandment or word, to the intent that he may find surety of peace, 9. E. 4. 3

And by the civill Law, if any one do keep or nou­rish a Masty Dog, Beare, or Fox, or some like beast, which doth hurt, or damnify another man, he that receiveth the hurt shall recover damages against the Owner of the beast, Fulb. l. 1. f. 81.

And so at the common Law, if a man hath a Dog which killeth Sheep, and hath notice of the condi­tion of the Dog, the master shall be punished for it, as may be gathered out of Dyer, 28. H. 8. f. 25. Pl. 162. Otherwise if he be ignorant thereof, or if it be done without the Masters incitation, ibidem. f. 19.

And whereas in many cases that concerne Lands and Goods, the Law doth deprive a man of pre­sent remedy, and rather then to suffer an inconve­nience, turneth him over to a further remedy, yet if [Page 277] the question be of a personall paine, the Law doth give him present remedy, because he holdeth no damage a sufficient remedy for a corporall injury, which ground as Sir Francis Bacon ing [...]niously ob­serveth, some of the Canonists do aptly inferr out of Christs sacred mouth; Amen corpus est su [...]ra vesti­mentum, verily the body is more worth then ray­ment, where they say vestimentum comprehendeth all outward things appertaining to a mans conditi­on, as Lands and Goods, which they say are not in the same degree with that which is corporall, Ba­con Max. f. 30.

As if a Sheriff make a false returne, whereby I loose my Land, yet because of the inconvenience of drawing things to delays, if the Sheriffs re­turne should not be credited: I am excluded of my averrement against it, and am put to my action of deceite against the Sheriff, and Summoners, 5. E. 4. 80.

But if the Sheriff upon a Capias returne a Cepy Cor­pus, & quod languidus est in prisona, I may come in, and falsify the returne of the Sheriff to save my im­prisonment, 3. H. 6. 3. So if a man menace me in my goods, and that he will burne certaine evidences of my Land, which he hath in his hands, if I will not make him a bond: and if I enter into bond by this terror, I cannot avoid it by plea, because the Law holdeth it an inconvenience to avoid a special­ty by such matter of averrement, and therefore I am put to my action against such a menacer.

But if he restraine my person, or threaten me with a battery, or with burning of my house, which is a protection to my person, or with burning an Instrument of Manumission, which is an evidence of my En-franchisement, if upon such menace or duresse, I make a bond, I shall ovoid it by Plea, 7. E. 4. 21.

So if a Trespassor drive away my Beasts over an­others ground, and I pursue them to rescue them, I am a Trespassor to him upon whose ground I came, but if a man assaile my person, and I fly over an­others ground, I am no Trespassor, 13. H. 8.15. & 21. H. 7. 28. Bacon F. Max. s. 29 & 30. vide ibidem plura.

An injury is two-fold, either in factis, or in verbis, in factis, as when a man is assaulted, or beaten, in verbis, when a man is slandred, and by termes diffa­med; the grounds of the first injury we have already surveyed, which consisted in assaults, and corporall injuries, now are those of the second sort to be set forth, which are grounded on slanders, and diffa­mations, from whence arise these grounds.

Lubricam linguae non facile in paenam est trabendum R.I.C. The lightnesse and rashnesse of the tongue is not easily to be drawn into punishment. There are diffamatory words, which proceed from the weaknesse, or lightnesse of the braine, or any rashnesse in the tongue, which because they are not thought to be spoken malitiously, passe for the most part unpunished, for in all such cases words of col­lor, and in heate, as to call one cousener, and craf­ty knave, common extortioner, and drunkard, witch, rogue, Pillory knave, villaine, and unlesse he say villaine to such a man, or regardant to such a mannor, will beare no action, for these are not ma­litiously spoken, Finch. Nomot. f. 186. b. And by re­ciprocall reason, the malice of those which bring actions of slanders debilitateth their cases, and therefore Coke l. 4. f. 15. b. It was the resolutions of the Judges, that actions of slanders shall not be maintained by any strained constructions, or any favour shewn for the supportation of them, be­cause they abound more in these dayes, then here­tofore, and the malice of men encreaseth, & mali­tijs hominum est obviandum.

But of such light, hasty, and rash speeches, the civill Law also taketh no cognisance, no though [Page 279] a man in this case speaketh ill of the Prince him­selfe, and the civill Law is so far from taking hold of such words, that the Emperor himselfe hath said of them thus.

Siquis imperatori malediceret, si id ex levitate pro­cesserit contemnendum est, si ex in sania, miseratione dignissimum, If any should speak evill of the Empe­ror, if it proceeded from lightnesse, it is to be con­temned, if from madnesse it is most worthy of com­miseration.

But in case that such workes be of hatred, and malice, as if one reprocheth another with any thing in his state and condition, wherwith he is not justly to be charged, then is it altogether punishable, for that thereby charity between man and man is vio­lated, and the peace of the Common-wealth is ma­ny times broken and disturbed, and as Coke saith l. 4. f. 15. b. ad verbis ad verbera perventum est, and in this sense the rule of the Cannon Law may be taken to be true.

Omnis qui detrahit fratri suo homicida est, every one who detracteth from his brother is a man-slayer, to wit, in fo ropoli, for whosoever hateth his Brother is a murtherer, 1. Joh. 3.15.

And therefore at the common Law, if a man ma­litiously utter any false slander, to the indanger­ing of one in Law, as to say that he hath reported that mony is fallen, for he shall be punished for such a report if it be false, 9. E 1. Ʋttings case. Or if he touch him with some hainous crime, as that he went about to get poison to kill the child that such a woman goeth with, and yet it is no Felony. Or lie in waite to rob him, or procured another, or agreed with another to murder him, though he were not murdered in deed, or sought his life for his Land, 17. Eliz. Hacks case. Or for impai­ring his trade of life, as to call a Merchant a ban­querupt (for it is his living, but so it is not of a Gen­tleman) or an Attorny an Ambodexter, or to say he dealeth corruptly, Finch. Nomot. f. 186. Or to call [Page 280] the Plaintiff theefe, 27. H. 8.22. Or for calling a man a false or perjured man, 28. H. 8. B. or for cal­ling the Plaintiff a false Justice of Peace, 4. E. 6. 112. An action of the case will lye, for those are words of eminent slanders, and of great import, and such as concerne the estate, condition, and life of man, and therefore Coke l. 44.15. In our Books actions for slanders are most rare, and those that are brought are for words of eminent and great im­port.

Albeit, diffamations and scandalls properly con­sist in words, yet may they also be done by writings, as by diffamatory Libels, which by Bracton are called Carmina famosa, and by Senica, Contumeliosi Libelli, infamous Rhimes, and contumelious Libells, which flow from malice and pride, and tend to contempt and dissention, and therefore Plato banished such out of his Common-wealth, and the Romans pu­nished them with death.

L. 1. de Civ. Dei. c. 12.St. Augustine, Romani probris, & injurijs poetarum subjectam vitam famanque habere noluerunt, capite etiam puniri sancientes tale carmen condere siquis aude­ret, the Romans would not have their lives and fame Subject to the scofs and injuries of Poets, or­daining that whosoever should dare to compose any such verse, to be punished with death; which also was one of the Laws of the twelve Tables, ibidem c. 9.

And they appointed the Aediles, and Triumviri capitales, to foresee that no prejudice should grow to the Common-wealth by Libells, to sow the seeds of sedition, and novelty; whose prudent ex­ample, the wise King Henry the seventh was indu­ced to pursue,Bacon. Hen. 7. f. 138. who as Sir Francis Bacon historizeth it, hanged and executed five meane persons for spread­ing of swarmes & volleys of Libels against his High­nesse, and contriving and dispersing thereof, which as he saith are the femalls of sedition, and which also in conscience is a hainous crime, and little inferior to high treason, and therefore particular­ly [Page 281] prohibited by the Law of God, Exodus 22.28. Thou shalt not revile the Prince, and according to the originall, Gods, nor curse the ruler of thy people; and Ecclesiastes 10.20. Curse not the King, no not in thy thought, wherein Magistrates are included, because it concerneth the scandall of go­vernment, and by the civill Law in generall, this diffamatory crime is made capitall; as if any man doe devise any slanderous Libell against one, and it happeneth that another find it, and he doth not cancell it, and teare it in peeces, but doth publish it to others, he is punished with capitall punishment, and so is the author likewise punished, Fulb. l. 2. f. 27. Which description of a Libell accordeth with ours at the common Law, as in Lambs case it was resolved, Coke l. 4. f. 59. b. That every man who shall be convicted for the publication of a Li­bell, either he ought to be contriver of the Libell, or the procurer of the contriving of it, or a maliti­ous publisher of it, knowing it to be a Libell, and saith, it is a great evidence that he doth publish, when as he knowing it to be a Libell doth write a copy of it, unlesse that afterwards he can prove that he delivered it to a Magistrate to examine it, for then the act subsequent explaineth the condition prece­dent, and though our Law be a charitable dealing mother, and in all cases favoreth the life of man, (even above the other two, which are most favored in the Law,There are three things most favored in the Law, life, liber­ty, and Dower. Coke Com.) so as it doth not punish this offence with capitall punishment, yet doth it detest, con­demne, and punish it as a step dam to rancor and violent speeches, the abortive children of malice, and as a more odious, and perilous crime, then o­ther open scandalls.

For as Coke l. 5. f. 125. b. The nature of Libel­ling is secret, and robbeth a man of his good name, which ought to be more precious unto him then his life, and it is a very difficult matter to finde out the Author, and therefore when the offendor is known, he ought to be severely punished; [Page 282] as one who poisoneth another secretly is a greater of­fendor, then he that killeth a man openly, because the offendor cannot be so easiy prevented, or inverted: & it mattereth not whether it be true, or if the party against whom it is made be of good fame, or evill fame, for in a setled state of government, the party greived ought to complaine for every injury done to him in the ordinary course of Law, and not by any meanes to revenge himselfe, either by the un­lawfull course of Libels, or otherwise; and it is not materiall whether the Libell be in writing, or with­out writing, or whether in rime, or prose, or whe­ther by Picture, as to paint the party in any shame­full or ignominious manner, or by signes, as to fix a Gallowes, or any other reprochfull or d [...]shonorable signes at the house of the party or elsewhere, and therefore for the reasons abovesaid, and that though the Libell be made against one, yet doth it incite those, who are of the same family, or society to re­venge, and so tendeth to the breach of peace, and may be the cause of effusion of blood: It was resolved that a Libeller shall be punished by enditement at the common Law, or by bill if it be denied, or ore tenus, by confession in the Star-Chamber, and ac­cording to the quality of his offence, he may either be punished by fine or imprisonment, and in an ex­orbitant case, by Pillory and losse of his eares, vide ibidem plura.

Veritas nihil veretur nisi abscondi, Coke l. 9. f. 20. b. Truth feareth nothing but to be hid and con­cealed. Truth considered principally, appertaineth to the Metaphysicks, materially to naturall Phylo­phy, instrumentally to Logick, but practically to the Ethicks or morall Phylosophy, and is nothing else, but an affection of our speech, and actions agreeing with the mind, and is properly called veracitas, that is a speaking of truth, and of this truth is the ground to be understood, that it is afraid of nothing then to be obscured, for covin is so mixt with truth, or truth with covin, that it often deceiveth a prudent observer.

But though truth be so mixt with covin that e­vill herbe, as Ploydon phraseth it, such a conjunction and mixture will prove unsavorie, and the goodness is turned to mischeivousnesse and the law wil never permit covin, and falsity to suppresse verity and fi­delity, but in all cases laboureth to discover and censure them.

As if there be Lord and Tenant by fealty and rent, and the tenant maketh a Lease for yeares, and the Lessor hath made fealty and paid the rent con­tinually, and yet the Lord distraineth the Cattle of the Lessee for the rent, where in truth nothing is be­hind, and avoweth upon a meere stranger, who ne­ver had any thing, as if he were his very tenant, for the arrearages of rent, this false avowry of the Lord upon a stranger, that is not his tenant shall not hurt the Lessee against the truth of the case, but upon speciall matter disclosed, he shall have aid of his Lessor, who is the true tenant, and therefore if the Lessee in such case alledge that his Lessor was and still is seised of the tenancy in his demesne as in fee, and so holdeth it of the Lord by the services, &c. of which services the Lord hath been, and yet is seised by the hands of the Lessor, and that the tenant hath leased the Land to him, and that the Lord hath charged the Plaintiff unjustly to avow upon one who hath nothing in the tenancy, and therfore he prayeth in aid of the Lessor, in this case upon the speciall matter, he shall have aid, for that without his Lessor he cannot plead this matter in abatement of the avowry, neither shall the Lord be compelled to avow upon the Lessor, and the false avowry of the Lord upon a stranger that is not his tenant shall not hurt the tenant, con­trary to the truth of the case, for truth feareth nothing but to be concealed, and the Law will never permit falsity to suppresse a truth, Coke ibidem vide plura.

The Statute of W. 2. c. 3. giveth a Cui invita up­on recovery by default, before which such recovery [Page 284] was a wrong to the feme, and an hard thing, as the Statute saith, and therefore a Cui ante devortium is given by the equity of that Statute, for it goeth in oppression of falsity, and advancement of verity, so the Statute of Marlebridge, cap. 6. maketh an ordi­nance against those who use to enfeoff their first borne and heires within age, and yet if his first Son dyeth, and he enfeoffed his second Son, who is his heire, it is within the equity of the Statute, or if he levy a fine to him, which is matter of record, it shall be within the equity of the Statute, and yet the Statute speaketh of a Feoffment, and the cause is, for that covin is allwayes abhorred in our Law, and states made in suppression of it are for the publick good, and therefore shall be extended by equity: And therefore the Statute of 1. H. 7. c. 1. Which giveth a Writ of Formedon in the remain­der against the pernors of the profits, was made for oppression of covin, for the Feoffment made to per­sons unknown to defraud them, who had right to the Land was a great covin, and deceite in Law; and therefore a Scire facias to execute a remainder, shall be maintainable against pernors of the profits, Ployd. f. 59 b. in Wimbishes case.

So in Twins case, l. 3. f. 82. It was resolved by the whole Court, that Statutes made against fraud shall be liberally, and favorally expounded to sup­presse fraud, because fraud and deceite abound more in these days, then in former times, where you may finde in Pennyfoots case, and diverse other cases to that effect and purpose.

Quod alias bonum & justum est si per vim vel frau­dèm petatur malum, & injustum est, Coke l. 3. s. 78. a. what otherwise is good and just, if it be acquired by force or fraud is evill and unjust, and as Ploydon saith, Covin may alter the marter, though the title be good, and covin to have recovery may be as well where the title is good, as where it is faint and [Page 285] bad: And therefore the Book is, M. 15. E. 4.4. If a feme have cause of dower, and is of Covin that the tenant shall be ousted by A. against whom shee recovereth, and hath execution, that her estate shall be adjudged against the Disseissee by dissei­sin, and shall not hold it, but shall be a Disseiseresse, and yet the title of recovery is good and true, but the Covin is the cause of it, Ployd. f. 59. & Coke l. 3. f. 78. a.

So if issue in tail who hath good cause to have a Formedon in the Descender upon discontinuance, be of Covin, that A. shall disseise B. against whom he doth recover, he shall not be remitted, although his title is good, but shall be adjudged a Disseisor by reason of the Covin, M. 10. H. 8.

And in 19. H. 8. Where one disseised tenant in taile by Covin, to the intent to enfeoff the issue in taile within age, who had no cognisance of the Covin, and he enfeoff him, he shall not be re­mitted by the better opinion, notwithstanding his good title, and the covenous intent is the cause onely. Ployd. f. 51. & 54. And so is it there holden by six Justices, Coke l. 3. f. 78. in Fermors case.

And the reason there given is, because he that is in by him that made the Covin, shall be in the same plight, as he that made the Covin, and yet in­fants are much favored in Law.

It was found by office, that one F. that had good cause of action of ad terminum qui praeterij [...], against an infant in by descent, caused one H. to disseise the Heire by Covin, against whom he recovered by his Writ of Entry, ad terminum qui praeterjit, where­upon [Page 286] this Office found, the King of whom the land was holden, had restitution to the Land during the nonage of the heires, notwithstanding the plea, and averment of F. in maintenance of his title; so as though the title was good, yet if covin was pra­ctised by him who had title to come to it, he shall not be remitted, Ployd f. 48. b. 41 Ass. 28.

For the common Law so abhorreth fraud and co­vin, as all acts as well judiciall as others, and those who of themselves are just and lawfull, yet being mixed with fraud and deceit, are in judgment of Law injurious and unlawfull, Coke l. 3. f. 78. a.

And so Coke l. 4. f. 113. a. in Adams case, A man deviseth Tenements to superstitious uses, and to good and charitable uses, as to teach a Grammar Schoole; yet because the good and charitable uses were mixt with superstitious uses, and nothing in certaine was limitted to a good use, in such case the commixture of the evill use with the good use, infecteth the good use, as a little poyson commix­ed with a great quantity of Wine, or as truth mix­ed with covin, turned the goodnesse of the one in­to the naughtinesse of the other.

And 19 H. 8. 12. If a man make a disseisin, with the intent to make a Feoffment with warranty, al­though he make the Feoffment twenty moneths af­ter, yet it is a warranty commenceth by disseisin, Ployd. f. 51. So if one make a gift in taile to ano­ther, and the Uncle of the Donor disseise the Do­nce, and maketh a Feoffment with warranty, and the Uncle dyeth, and the warranty descendeth up­on the Donor, and then the Donee dyeth without issue, the Donor bringeth a Writ of Formedon in re­verter, and the Tenant pleadeth the Feoffment with the warranty, the Demandant shall avoyd it, because it commenced by disseisin, and yet the disseisin was not immediately made to the Donor, but to the Donee, but by it his reversion was deve­sted, and yet warranties are much favoured in Law.

It is a rule in the Civill law, Neminem ex suo dolo, [Page 287] & calliditate relevari, that no man is releived by his fraud and deceite: And it is an erudition in the common Law, Fraus & dolus nemini patrocinari, de­bent, Fraud and deceit ought not to be patronized in any, Coke l. 3. f. 78. b.

There is dolus bonus, and dolos malus, say the Civi­vilians: dolos bonus is when a man doth devise any plot to entrap a theef or offendor, and this cannot properly be called fraude, but solertia and cunning, and such a kind of cunning is practised in war-fare by which more victories are atcheived, then by maine force, as Tacitus, plura consilio, L. 1. An. quam vi ge­runtur.

But dolus malus, is a subtile devise used to the de­ceiving another, or the Law, and this deceit doth not in out Law escape punishment, but affordeth a double remedy against such who endamage others by deceit, either a Writ of deceite, or action upon the case.

As if I. present one to a Church being Patron, and one T. disturbeth me, and another in my name purchaseth a Quare impedit, without my knowledge against the said T. and after causeth the Writ to be abated, or I non-suite in the action, I may have a Writ of deceit against him, 55. E. 3. Quare impedit, 37.20. H. 6.20. And an action of the case is maintainable against him, who sueth an originall in the name of the Plaintiff against his will, 7. H. 6.45.

So if any one forge a Statute Merchant in my name, and sue a Capias thereupon, whereby I am arrested and had in execution, a writ of deceit lyeth against him, 19. H. 6.44.

So if the guardian of an infant vouch one by covin, who is not sufficient, or pleadeth a bad plea where­as he might have pleaded a better, the infant shall have a writ of deceit against him, and recover the full value in damages, 9. E. 4.34.

A writ of deceit was brought against an Attorny for acknowledging satisfaction, whereas his Master [Page 288] was not in truth satisfied, 11. H. 6.34.

In a Praecipe quod reddat, if the Sheriff returne the tenant of the Land to be summoned, whereas he was not summoned, and the tenant looseth by default upon the grand Cape returned, the tenant may have a writ of deceit against the recoverer, and against the Sheriff for his false returne, F. N. B. 97. C. and may defeate the judgement, and no damages shall be recovered against the Sheriff in such case, onely he shall be fined, 5. E. 4.4 [...]. And if he dye, his heire may have an action of deceite, and resti­tution of the Land, 8. H. 6.5.

If a man bargaine with another, and assume, upon consideration to enfeoff him of ceraine Land, and he enfeoffeth another, he to whom the assumpsit was made may have an action of deceite, or an action upon the case at his pleasure, 3. H. 7.14.

If one selleth to another a horse, which he know­eth to have a secret disease in his body, or selleth Corne, which is full of gravell, an action of deceite lyeth, 20. H. 6.36. without warranty, but F.N.B. 94. C. is of the contrary opinion. If the Sheriff arrest the body by a Capias ad respondendum, and returneth not the Writ, the party shall have an action of false imprisonment, Kell. way, f. 3. b.

The Law ordaineth, that he who will be sure of his goods, shall buy them in Market overt, and that sale shall bind all strangers as well as vendors, and yet it is agreed in 33. H. 6. That sale in open Market, shall not bind him who hath right to the goods, if the sale be by fraud, or the Vendee hath notice that the property of the goods appertaineth to another.

So the Law hath ordained the Court of the com­mon Pleas as Market-overt, for the assurances of Lands by fine, so as he that will be assured of Land, not onely against the Vendor, but against all stran­gers, it is good for him to passe it in this Market-overt by fine, yet Covin and deceite shall avoid it, overt by fine, yet Covin and deceite shall avoid it, [...] a Feoffment by [Page 289] Covin, which amounteth to a wrong and disseisin, Fine levyed by him who is particeps criminis, and who had not, nor pretended to have, any right to the land, shall not be a bar to the Lessor, Coke l. 3. f. 78. Fermors Case.

A resignation made by an Abbot by covin shall not abate the Writ, 4 E. 2. 22. A covenous Con­veyance that assets shall not descend, is not of force, 34 E. 3. 19. 19 E. 2. 3.

And 17 E. 3.59. That an estate made to the King, and Letters patents granted over, and all it by covin, between him that granted to the King, and the Patentee, to make an evasion out of the Statute of Mortmaine, shall not bind but shall be repealed.

A presentation obtained by fraud and deceit, is voyd, Dyer 339. b. Letters of administration obtain­ed by fraud and covin, are voyd, and shall not re­peale the former administration, Dyer 339. a. & vide Dyer 295. many Cases there put concerning covin.

If I sell to one cloath, and warrant it to be of such a length, and it is not of such a length, the buyer may have an action of the case against me by vertue of the warranty, although the warranty be by word and not written: but if the warranty be made at some other time after the bargaine, he may not have a Writ of deceit, unlesse it be made by writing, F. N. B. 98. k.

If a man sell to one Seeds, and warranteth them to be of another Countrey, if they be not, a Writ of deceit lyeth; but if he warrant that the Horse which he selleth should go fifty miles in a day, or that the Seeds shall grow, it is otherwise. And a Writ of deceit lyeth for selling of corrupt Victuall without warranty, but not for selling of rotten Sheep though it be with warranty; but to warrant a thing which is evident to sense, as to be black, which is blew, is voyd, unlesse the buyer be blind, or the thing which is bought be absent, 11 E. 4 7. 3 H. 4. 1.

If I sell one certaine Pipes of Wine, and warrant them to be good, and they be corrupt, the Vendee may have an action of the case against the Vendor, F.N.B. 99. b. Yet according to the opinion of some, an action will lye without warranty, 7 H. 4. 14. But Master Fitzherbert saith, that there ought to be a warranty, and his taste ought to be his judge in such case; and where it is with warranty, the Writ must say, that the Defendant at the time of the warranty made, knew that the Wine which he sold was corrupt.

A Writ of deceit was brought for selling a certain quantity of Wooll, and warranting it to be fifty sacks, whereas it wanted of that measure; the De­fendant pleaded in bar, that it was weighed before the sale, and the servants of the Plaintiffe, being his Factors, did accept of it, and carryed it be­yond the Sea, whereupon the Plaintiff demurred, 13 H. 4. 1.

Semper qui dolo fecit, quominus haberet, pro eo ha­bendus est, ac si habet, Reg. J. C. Alwayes whosoever shall give or grant any thing by fraud, whereby he may seem not to have it, he is to be esteemed as if he hath it: And therefore if a man by fraud make a Deed of gift of all his goods to one of his Credi­tors to deceive the rest, the gift by the Statute of 13 Eliz. is voyd, Twins case, l. 3. f. 81 quod vide, where you shall finde the signes and marks of fraud accurately and fully discovered.

And Coke l. 5. f. 60. a. b. debt against the heire upon an obligation, the Defendant pleaded Riens per descent, the Plaintiff replyed, that he had Assets in D. &c. and the Plaintiff giveth in evidence, that the father dyed seised of lands in fee; the Defendant sayd, that he aliened before the Writ, the Plaintif averred by covin, and proved that it was done by fraud to defraud the Plaintiff; and therefore it was resolved to be voyd by the Statute of 13 Eliz. c. 5. and that the fraud might be wel given in evidence, because the Statute saith, that the estate, as to the [Page 291] Creditors shall be voyd, and therefore shall be ta­ken by favourable interpretation for to suppresse fraud; and that it shall be mischeivous to the Cre­ditors, and increase maintenance and covin, if the Plaintif should be driven to plead, that the Feoff­ment was by fraud, because it is comm [...]nly hatched in arbore cava, and so artificially covered and con­cealed, that the party grieved hath no meanes to find and know it; and therefore j [...]dgment was gi­ven for the Plaintiff, vi [...]e ibidem. And Burrels case, l. 6. f. 730. a. and l. 8. f 133. in Turners case.

So Hobart, f. 72. Humbertons Case: Humberton recovered a debt against T H. and dyed; and up­on a Scire facias against the Ter tenants the She­riff returned J. H. Tenant of an house that was his at the time of the judgement, and J. H. came in and pleaded, that T. H. enfeoffed him long before the judgment, in fee, absque hoc, that he was seised at the time of the judgement, or any time after: whereupon issue was taken, and the Jury found the Feoffment, and further sayd, That it was made by covin to defraud the Plaintiff, and other Creditors, and it was judged for the Plaintif, vide ibidem plu­ra, and fol. 166.

Fraus praesumitur si insolitae clausulae apponantur, Reg. J. C. and Coke l. 3. f. 81. Clausulae insuetae sem­per inducunt suspicionem. As there in Twins case, A Deed of gift was in part adjudged fraudulent, be­cause an unusuall clause was inserted in it, and for that the Deed contained, that the gift was made honestly, truely, and bona fide, vide ibidem plura.

Dona clandestina sunt semper suspiciosa, Coke l. 3. f. 81. Gifts in secret are alwayes subject to the su­spition of fraud, which there in Twins Case was one of the reasons alledged to prove a Deed of gift fraudulent, to wit, that it was made in secret: And so in Burrels case, l. 6. f. 72. the assignment of a Lease was taken to be fraudulent, because it was delivered in a secret manner to a person of meane quality: And for the same reason by livery and sei­sin [Page 292] in one County, the Lands in another County will not passe, Noys Max f. 3.

Jus, & fraus nunquam cohabitant simul, Coke l. 10 f. 49. a. Right and fraud never cohabit or dwell together: As a Recovery cannot be sayd to be by collusion, where tenant in taile is in the Recovery, whether he be tenant in Deed or tenant in Law, as a Vouchee: For the Law hath made all the rever­sions and remainders, as incidents to his estate, subject to his pleasure, and he hath right and power to bar them all, ibidem.

And Coke l. 8 f 132 b. Covin cannot be al­ledged in doing of a lawfull act: As in a Writ of Dower against a disseisor, if the Tenant plead in abatement of the Writ, entry by the disseisee, the demandant shall not be received to aver the en­try to be by covin to abate the writ, because the en­try is congeable and lawfull, and mixed with no wrong; as it is holden in 15. E. 4. f. 4. and if a disseisor, or an abator endow a feme who hath title of dower, it is good , because it is a lawfull act, Coke l. 5. f. 30. b.

Fraus meretur fraudem, Ployd. f. 100. and the Poet, ‘Fraus est concessa repellere fraud [...]m.’

Fraud and subtilty deserveth fraud and subtilty, and it is a lawfull deceit to repell a deceit.

As in 19 E. 4. f. 27. In appeale of many, who pleaded not guilty, a Venire facias was awarded a­gainst them all; and the Court perceiving that the prisoners were in opinion to sever in the chal­lenge of the whole pannell, of subtilty to stay the tryall at that time, and that every prisoner would challenge as many as they might without danger; to wit, twenty, and that every of them shall have his entire number of twenty, so that one shall not be excluded of his number by the challenge of the other, and that there was but a small number of men of sufficiency then in the City to be sworne, so as by that subtilty the tryall should be stayed for [Page 293] the present. The Court agreed that the first pannell and the Tales should be divided, and made seve­rall for every one of the prisoners: And according­ly said to the prisoners, We perceive your subtilty well enough, which deserveth little favour of the Court, and therefore tell us whether you will agree in your challenges, for if you will not, the Clarke shall sever the pannell, and then they all agreed in their challenges, and after the inquest was full, evidence was given, and there found, and one subtil­ty prevented and repelled by another.

And this fraud by the Canonists is called Benus dolus, of which they have this rule,

And instance in the example of Salomon, who did use such cunning betweene the two Harlots, in searching out who was the true and naturall Mo­ther of the childe, Fulb. 2. l. f. 23.

Vendens eandem rem duobus falsarius est, Reg. I.C. Coke l. 1. f. 45. a. A man selling the same thing to two is a falfe dealer, and therefore in the grant of the King, it is dishonourable for him to grant the same possessi­on to one, that he or his Progenitors had granted to another, for he that selleth the same thing to two persons is a deceiver.

Fraudis interpretatio non semper ex mente dun­taxat, sed ex consilio quoque desideratur, Reg. I. C.

Dolus circuitu non tollitur, Coke l. 11. f. 74. a. nec purgatur, Bacon Max. f. 3. The interpretation of fraude is not allwayes to be gathered out of the mind, but also from the councell, and consent, and crafty dealing; and deceite is not taken away nor purged by the circuity of shifting it from one to another, and though covenous acts be conveyed through many hands, and mediations, yet the Law taketh hold of the corrupt beginning, and pro­ceeding. As if I make a Feoffment of Lands held in Knights service to I. S. upon condition, that within [Page 294] a certaine time he shall enfeoff I.D. which Feoff­ment of I. D. shall be to the use of the wife of the first feoffor for her joynture, &c. this Feoffment is within the Statute of 32. H. 8. Bacon ibidem.

So if one who hath an intention to sell his Land, by fraud conveyeth it by deed enrolled, to the Queen, with an intent to deceive the purchasor, and after selleth that Land to another for a valuable conside­ration, and maketh a conveyance accordingly, in this case the purchasor shall enjoy the Land against the Queene, by the Statute of 27. Eliz. c. 4. For though the Queene be not excepted, yet the act be­ing generall, and made for the suppression of fraud, sh [...]ll bind the Queen, and whosoever maketh the Queen, who is the Fountaine of Justice to be an In­strument of covin and fraud, and upon it obtaineth Letters Patents, such Letters Patents are void, or if the Queen be indeavored to take away another mans right, and to that end a man obtaineth Letters Pa­tents, they shall be repealed, though such covin and fraud be not contained in the grant made to the Queen, but appeareth onely by averrement dehors, for fraud and deceite is not taken away or dimini­shed by the subtility of alienations, Coke ibidem, in Magdalens Colledge case.

Non facies malum, ut inde fiat bonum, it is the Law of God, thou shall not doe evill that good may come thereof, Coke l. 5. f. 30. b. & lib. 11. f 7. 4 a. What hath been said of truth and falsity, may be said of good and evill, and are so semblable, that an apparent good is often mistaken for that which is reall.

H. 7. f. 2.As Richard the third did many, whose virtues as Sir Francis Bacon histerizeth it, were feined, and [Page 295] affected things to seek his ambition, and not true qualities engendred in his judgement and na­ture; But though as Matchevill saith, such vertuous shews and shadowes are sufficient to please and delude the people, yet the Law Divine, and the Law Humane, which dimaneth from the Divine, is able, and doth distinguish between good and evill; and as the great Legist of Rome, imperat honesta, & prohibet contraria, commandeth that which is good and honest, and inhibiteth that which is evill and impious; and so doe the Justices and Judges of the Law, for as Bodin saith,Eodin M. hist. f. 50. Qui in litibus versantur Ju­diciorum communione omnia mala norunt, nec mala dun­taxat siditiam bona sinc quibus illa constare, & per­cipi nullo modo possunt, bonorum autem, & malornm finibus omnis humana prudentia continetur, Those who are versed in suits of Law, by the participation of Judgements know all evill things, and not onely evill but also good things, without which they can no way consist, or be perceived, but in the limits and bounds of good and evill, all humane pru­dence doth consist; and therefore by the Law, as the same Legist saith, are proposed and appointed, prae­mia virtutibus, & supplicia vitiis, rewards to virtues, and punishments to vices, and is so severe in the censure of vice and evill, that it will not permit any one to doe evill, that good may come there­of.

As the Law will not permit a Creditor who is not Executor, to take and retaine the goods of the Testator, to pay and satisfy himselfe, though the payment of his debt be a good and honest thing, for by that meanes if the goods of the Testator be not sufficient to satisfy all the Creditors, the rest shall be barred, and if the Law should give him that power, it should be the cause and occasion of wrong; and the Law of God saith, you shall not do evill that good may come thereof, Coke l. 5. f. 30, b. And therefore doth our Law terme such an one, an Executor of his own wrong, and so in 17. E. 3. 59. [Page 296] The Friers Carmelites who had then no habitation, obtained of one I. M. who was seised of ten Acres of Land of the Bishop of Winchester, to have those acres of Land for their habitation, and because the said I. M. could not grant to them those ten acres, by reason of the Statute of Mortmaine; the said I. M. and the Carmelites by covin between them, to make an evasion out of the Statute of Mortmaine, granted the said ten Acres to the King, his Heirs, and Successoers, by which the Signiory of the Bishop should be extinct, to the intent that the King shal grant it over to the Friers Carmlites, which was done accordingly, and for that it was by covin contrived before to take the Bishop from his Signiory, which was an evill act, it was adjudged that the Charter shall be repealed, and the Friers Carmelites should be constrained to render their Charter to be cancelled, for though the Friers Car­melites were of the profession of religion, and had no habitation before, so as it seemed a work of piety and charity to provide an habitation for them, yet you shall not doe evill that good may come thereof, Coke l. 11. f. 74. a.

Contra jus na urale est malum pro bono reddere, Ployd. f. 405. b. It is against the Law of nature to render evill for good.

As it was a Law in a City, that strangers, who did goe or clime up to the Walls of the City, should be punished with death, but it happened that stran­gers innocently passing by the City heard a noise that the Enemy would suddenly assault and sack the City, whereupon the strangers more reddily then the Citizens got upon the Walls, and defen­ding the City, now the debate whether they should dye as the Law commanded, and it was answered not, because it is against the Law of nature to render evill for good, vide ibidem plura

Beneficium nul [...]i obtrudi [...]ur, Pap. f. 212. The Law doth not obtrude, or doe good turnes to one whe­ther he will or no, and therefore an alien borne shal not have medietatem linguae unlesse he request it,

So Damages, ex incremento, are allwayes to be assessed, ex petitio ne quaerentis, and so are costs ex incremento, and upon a Writ of Error, because in the beginning of the judgement, it was said, ideo ad petitionem quaerentis consideratum est, and not ideo consideratum est ad petitionem quaerentis, and the words were displaced, the Judgement was reversed, for the words misplaced will not supply this defect, for if the usuall forme should not be observed, all would fall into a confusion, and in as much as the words are misplaced, it is as if they had not been put in at all, and therefore void; like unto the case put in Walsinghams case, in Ploydon, where an averr­ment misplaced is as if it were none, vide ibidem plura, in Goods case.

Malum quo communius eo pejus, an evill thing the more common it is the worser it is, Coke l. 4. 109. b. For as the more common a good thing is, the better it is, so the more common an evill thing is, the worser it is, for contrariorum contra [...]ia est ratio, for as the true service of God which is in publick Churches, is better then that which is in private Churches, for the generall good that by it may accrew, so all superstitious uses which are in publick Churches, are worse then those which are in secret Chambers, for the generall prejudice which may accrew by them, v [...]de ibidem plura.

Theft in the beginning in most Nations was not punished with death, but with satisfaction or some lessor punishment, the Pretors of Rome did punish a theef, paena quad [...]upli, with a foure fold satisfaction, and the Jewes with seven fold, or if his goods would not amount to so much with all the goods in his house, Pro 6. 31. The Misians did punish petit Larceners with whips, but if a thing of good value be taken away they must render the nine fold, or else be put to death, Fulb. Pard. f. 80. But when the malice of men did increase, an iniquity did abound, that as the Poet, in facinus jurasse putes, and that many turned [Page 298] the crime of stealing into a trade of living, and did not gaine their lively-hood with their hands by working, but with their fists by fighting and steal­ing, as the Comedian facitely, ventri pugnae dant ventri suo, the detriment to the republick, and community of the offence made it capitall, so as though the offence and the punishment being com­pared, that Law may seeme unjust, yet as Metsner faith, Cum nullam aliud supersurit remedium, quo malitia hominum compesci, & tranquilitas conser­vari potuerit absolute injusta non est ideoque fures merito illi subjiciuntur, when no other remedy re­mained, by which the malice of men might be al­layed, and tranquility conserved, it is not absolute­ly unjust, and therefore deservedly are the eves sub­ject unto it, for which reason most Nations of the universe, justly inflicted capital punishment on such notorious Delinquents, as by the Law of the twelve Tables, if any man did cause his beasts to feed upon, or himselfe did cut, and carry away Corne growing upon the ground, if he were of full age, he was or­dained to be hanged, and to be sacrificed to Ceres; if not, he was whipped, and yeelded either the damage, and if he were obstinate the double: So by our com­mon Law the stealing of a Doe which is tame and domesticall, is Felony, but as Mr. Stanford, it seem­eth that he that stealeth it, should have certaine knowledge it is tame, but if the Doe be killed, and then stolen, this certainly is Felony, Stanford, l. 1. c. 25.

And likewise if a man cut Trees, and at the same time carry them away, this is a Trespasse, and is but [...], but if they lye upon the ground a long time, as the goods of the owner of the soile, this is Felony and is [...], 22. E. 3. Cor. 156. 10. E. 4. 15. and Stanf. 25. And for the like reason, as this offence is more nocumentall to the common good of some Countries, or some Cityes, it is more severely and suddenly there punished, as among the Phrygians, he was put to death that stole any [Page 299] instrument of husbandry, or did kill an Oxe was fit for the Plough, because the living of those Countrys did much consist of husbandry, so in Hallifax, he that stealeth but a yard of cloath is presently put to death, because the whole livelihood of most of them consisteth in cloath.

Malitia mutat legem, Dyer f. 104. b. malice alte­reth the Law, as an infant in case of murder shall be tryed for his life where malice appeareth, and not otherwise, because as Dyer there saith, malitia supplet aetatem, 3. H. 7.

And malice in homicide altereth the Law in those are of full age, as mans slaughter is a fact lesse hainous, because it is done on a suddaine without malice precedent, as if two of a suddaine fight to­gether without precogitated malice, and after many blowes given, the one flyeth from the other, and the other goeth in the next house for a weapon, and incontinently pursueth and killeth him that flyeth, this is but man slaughter by the common Law, be­cause it was done in a continuall fury, and shall have his Clergy, but shall forfeite his goods, Cromp. I. p. 23. So if two without any malice precedent, did fight together and one cometh to part them, and is killed by one of them, it is man slaugh­ter in him that killed him, ibidem, but if they had fought together, ex malitia praecogitata, having a purpose to kill, it is Felony in them both, 25 Ass. 180. But where a man killeth another upon malice, fore-thought, whether he killeth him openly or se­cretly, or whether he that is slain be an English man, or of another Nation, if he live in this Realme under the Queenes protection, Stanf. f. 18 he can­not have the benefit of Clergy.

So it is if one kill another upon malice implyed, which is when one killeth another without any de­fence on the part of the other, as a Goaler had ma­lice to a prisoner in his custody, because he suspected he was too familiar with his wife, and the prisoner purposing to goe out of prison, as he was wont, for [Page 200] his disport, the Gaoler suddenly struck the prisoner on the head, so that he fell to the ground, where­upon he dyed, and it was adjudged murder, Cromp. I. P. f. 20.

So if a theef rob another man and kill him, this is murder, though he never saw him before, neither had any inveterate malice against him, yet he had malice before the murder to this intent, that he would rather kill him then be disappointed of his purpose, Ployd. com. 474.

If the Justice of peace with the Sheriff, come to suppresse Riotors, and one of their attendance is slain by one of the Riotors, this is murder of him and all the Riotors, being present, Cromp. I. P. 21. And if one without quarrell killeth another standing by, this is implicit murder, ibidem, f. 22.

A writ of conspiracy will not lye unlesse malice appeareth in the prosecution, and therfore the Writ saith, quod ipsum in prisona nostra detineri falso, & malitiose procuraverat, that he procured him to be falsely and malitiously detained in prison, F. N. B. f. 115. G. and 15. Car. B. R. A man endited others at the Sessions in the old Bayly, who were acquit­ted, and the Defendants removed the enditement into the Kings bench, and prayed a copy thereof, to the end they might bring a Writ of conspiracy, and it was denied by the Court, unlesse the Recorder will say, that there appeared malice in the prosecu­tion, for a man shall not be punished for lawfull prosecution upon a just surmise without malice.

Semel malus semper praesumitur esse malus, Reg. I. C. who once is evill is allwayes presumed so to be, which as the Civilians, is to be understood, in eodem genere mali, in the same kind of evill, as if a Souldier hath behaved himself [...]ill in the Militia, he is no more to be trusted; and so perjured persons who have once forsworne themselves, and for it be convicted, cannot be admitted after to give Testimony in any cause, and this is so holden both in the Civill Law & the Common Law, no more also can another like in­famous [Page 301] persons, as if one be attainted of a false ver­dict, or of a conspiracy at the suite of the King, or convicted of a Premunire, or of forgery upon the Sta­tute of 5. Eliz. c. 14. and not upon the Statute of 1. H. 5. c. 3. Or convict of Felony, or by Judgement lost his eares, or stood upon the Pillory or tumbrell, or been stigmaized, or branded, or the like, whereby they become infamous, for some offences, for quae mi­noris sunt culpae majoris sunt infamiae, Coke com. f. 6. b.

Malitiae vitium connexum est personae committentis malitiam, Reg. I. C. the vice of malice is connexed to the person of him who committeth the malice: As if I have a malitious intent to kill one man, and in the execution of my malice, I kill another, the malicious intent shall be connexed to my person, and I shall be adjudged a murtherer, as if one of malice prepense, shooteth at another, intending to kill him, and his Arrow killeth another to whom he bore no malice, it shall be murder in him, for he intended in his act to murder, and that intention shall be connexed to his person, and it shall not be an excuse for him to say, that he had an intention to kill ano­ther person, Ployd. Com. f. 474. b.

So if an impoisoned apple be laid in a place to poi­son I. S. and I. D. cometh by chance and eateth it, this is murder in him that laid it, because in the ministration of it, he had a malitious intent of death, which is still connexed to his person, because he was the originall founder of his death.

But if a man lay venome in diverse parts of his house to kill Rats, and a person cometh and eateth it, and dyeth of it, it is not felony in him, because he was void of any malitious intent to hurt any reason­able creature, but otherwise it is if he had ministred it to kill a reasonable creature, and another reason­able creature had been slain by it, that he intended not, and he shall be punished for it, because he had an evill intent, vide ibidem plura, in Saunders case.

And if a man perswade another to kill himself and he be present when he doth so, he is a murderer for his evill intent, Bac. Max. f. 60.

If I discharge a Caliver with a murtherous in­tent at I.S. and the peece breaketh, and striketh into my eye, and killeth me, I am felo de me, because I had a murtherous intent, and yet had no inten­tion to hurt my selfe, ibidem.

Res profecto stulta est nequitiae modus, Coke l. 11. f. 86. b. In the case of Monopolies, it is a foolish thing verily to imagin any meane in iniquity.

As the sole trade of any mechanicall Artifice, or any other monopoly, is not onely a damage, and prejudice to those who exercise the same trade, but also to all other Subjects, for the end of all those Monopolies is the private gaine of the Patentees, and though provisions, and cautions be added to moderate them, yet it is meer folly to think that there is any measure in mischeife, or wickednesse, Ibidem.

Excessus in requalibet jure reprobatur communi, Coke l. 11. f. 44. a. Excesse in every thing is dis­allowed in the common Law, for all vertuous actions consisteth in the meane, and vicious, in the excesse and extreame, and the Law advanceth that is good and virtuous, and suppresseth what is evill and vici­ous.

Some Courts may fine and not imprison, as the Court of the Leet, and some can onely amerce, as the County Court, Hundred Court, and Court Baron, and some Courts may fine, imprison, and amerce, as the case shall require, as the Courts of Record at Westminster, or else where, for no Court can fine and imprison, but a Court of Record, F. N. B. 37. b.

Yet all Amercements and Fines which be in the excesse, are contrary to Law, as Magna charta, c. 14. Excessive Amercements are against Law, Nullus li­ber homo Amercietur nisi secundum quantitatem delicti, no Free-man may be amerced but according to the quantity of his offence, if Fines of the Copy-holder, of a Mannor be uncertaine, the Lord cannot exact expressive and unreasonable fines, and the Copy-hol­der [Page 303] may deny to pay it, and the reasonablenesse of the fine shal be determined by the Justices, &c. Quam rationabilis debet esse finis non definitur, sed omnibus cir­cumstantijs inspectis pendet ex justiciariorum discretio­ne, how reasonable the fine shal be is not defined, but all the circumstances being inspected, it de­pendeth upon the discretion of the Justices.

If tenant in dower hath villaines, or tenant at will, which are rich, and they by excessive tallages, and fines make them poore, or exuls, it is adjudg­ed to be contrary to Law, and to be wast, 13. H. 3. Title, Wast. 135. F. N. B. 178. b. because it is ad ex­haereditationem to the dis-inheritance of him in the reversion.

So excessive distresses are prohibited by the com­mon Law, 41. E. 3. f. 26. For the act, de articulis super Chartas non capietur gravis districtio, extendeth to the King onely: So excessive and outragious aid is against Law, as appeareth by the Statute of W. 1. cap. 35.

Plus peccat author quam actor, Coke l. 5. f. 99. the Author offendeth more then the actor.

The Statute of 5. Eliz. c. 9. hath two branches, the first is against procurors of perjury, and that is in matter depending in suit, by Bill, Writ, Action, or Information, so as the procurement of perjury upon enditement is out of that branch, the second branch is a purview against those who commit perjury by his or their depositions in any Court mentioned or being examined, in perpetuam rei memoriam, & though that clause be generall, and not restrained by any words to such particular suites by Bill, Writ, Action, or Information, as the first was, yet in good con­struction that branch shall have reference to the first, and shall be expounded by it, otherwise the party who suborneth perjury, and procureth him who committeth the perjury, shall passe without punish­ment, which shall be contrary to reason, and the in­tention of the makers of the Act, and some say, that the author offendeth more then the actor, and there­fore [Page 304] was Flowre who was endited upon the Statute of 5. Eliz. for perjury, in giving false evidence to the grand inquest upon an enditement of Riot, by the Judgement of the Court was discharged of that enditement, ibidem.

Peccatum peccato addit, qui culpae, quam fecit, pa­trocinia defensionis adjungit, Coke l. 5. f. 49. b. He addeth offence to offence, who adjoyneth a Patro­nage of defence to a fault he hath committed; As he who doth wrong, and at the first confesseth the fault, and obeyeth the commandment of the King by his Writ, shall not be amerced, and therefore pendenter facit, praecepto legis obtemperat, he doth wisely who obeyeth the precept of the Law, but every one who doth wrong, and being commanded by the Writ of the King, quod juste, & sine dilatione reddat, &c. that he justly and without delay re­store, &c. and he unjustly maintaineth the wrong of Record in the Court of the King, and with great delay constraineth the demandant by the course of Law, addeth offence to offence in his unjust Patro­nage of the defence of it, and therefore shall be a­merced.

Excusat aut extenuat delictum in capitalibus, quod non operatur idem in civilibus, Bac. Max. f. 314. In capitall causes, in favorem vitae the Law doth excuse or extenuate the fact of the offendor, except the malice of the will and intention appeareth, but in civill Trespasses and injuries the Law doth ra­ther consider the damage of the party wronged, then the malice of him which was the wrong doer.

As the Law maketh a difference between killing a man upon malice fore-thought, and upon present heat, but if I give a man slanderous words, whereby I damnify him in his fame, and good name, it is not materiall whether I use them upon suddaine choler and provocation, or of set malice, but in an action upon the case I shall render damages alike.

So if a man be killed by misadventure, as by an [Page 305] Arrow at Butts, this hath a pardon of course: but if a man be hurt, or maimed onely, an Action of Trespass lyeth, though it be done against the parties will, and he shall be punished in the Law as grie­vously as if he had done it of malice, Stanf. 16.6 E. 4.7.

So if a Chyrurgion authorized to practise, do, through negligence of his cure, cause the party to dye, this Chyrurgion shall not be questioned for his life: yet if he do onely hurt the Wound, where­by the cure is cast back, and death ensueth not, he is subject to an Action of the Case for it, Stanf. 16.

So if Baron and Feme commit Felony together, the Feme in regard of the subjection of her will to her husband, shal neither be principal not accessary: but if they joyn in committing a Trespass upon land or otherwise, the Action may be brought against them both.

So if an Infant wanting discretion, or a mad-man kill another, he shall not be impeached thereof; but if they do him any corp [...]rall hurt, he shall be punished in Trespass, 35 H. 6. 11.

So in Felony, if the principall dye, or be pardon­ed, the proceeding against the accessory faileth. But in a Trespass if one commandeth his man to beat you, and after the Battery the Servant dyeth, yet you may have an Action of Trespass against the Master, 17 H 4.19.

Aestimatio praeteriti delicti, post facta, nunquam crescit. Bac. Max f. 32. In penall Lawes and Facts, the Law considereth the degree of the offence, not as it standeth at this time, when it is committed, but for any circumstance, or matter subsequent, the Law doth not extend or amplifie the same.

As if a man be wounded, and the Percussor is vo­luntarily let to go at liberty by the Goalor, and af­ter the party wounded dyeth, yet it is no Felonious escape in the Goaler, 11 H. 4.12.

So if one conspire the death of one, who after cometh to be King, not being within the Statute of [Page 306] 25 E. 3. this is high, not high Treason; but otherwise it is in civill and common cases, vide ibidem Plur.

Ipsae etenim leges cupiunt, ut jure regantur, Co. l. 2. f. 25.

In omnibus quidem, maxime tamen in jure aequitas est, Reg. I. C. In all things, but especially in the Law, there is equity, and the Lawes themselves desire to be ruled by equity. For inasmuch as no Legis­lators can foresee all things which may happen, it was therfore convenient as Ploydon saith, that that fault should be reformed by equity.

And is either an amplification or diminution of the Law, and no part of the Law but a morall ver­tue, which reformeth the Law; for dirigens and directum are diverse things, and equity is not a Law but the emendation of the Law, and therefore the Lawes themselves desire to be ruled by equity.

As whereas, the Debtor after he is become Bank­rupt, may prefer one and defraud others, the Act of 13 Eliz. c. 7. hath appointed certain Commissio­ners of indifferency and credit to releive the Credi­tors of the Bankrupt equally, and that there shall be an equall and rateable proportion observed in the distribution of the Goods of the Bankrupt among his Creditors, having regard to the quantity of their severall debts, so that one shall not prevent the o­ther, but all shall be in aequali jure, and so we see in many cases, as well at the Common Law, as up­on the like statutes such constructions have been made; for as Cato said, Ipsae etenim leges cupiunt ut jure regantur, and therefore is it holden, 35 H. 8. Ti­tle Testaments, V. de plura in Her­berts case, lib. 7. Bro. 19. A man holdeth three Mannors of three severall Lords by Knights-service, every Mannor being of equall value, he cannot devise two Mannors and leave the third to descend, ac­cording to the generality of the Acts of 32. & 34. H. 8. of Wills, for then it shall prejudice the other two Lords, but by equall construction he cannot devise but two parts of every Mannor, and so as e­quality shall be observed among them, and so at the [Page 307] Common Law an equality is required, as in 11 H. 7. 12. b. a man is bound in an Obligation, and his Heirs, and he hath Heirs, and hath lands of the part of his Father and part of his Mother, both the Heirs shall be equally charged, vide ibidem plura Co. Com. f. 10. a. If partition be made between Parce­ners of lands in Fee simple, and for novelty of par­tition, one granted a rent to the other generally, the Grantee shall have a Fee-simple without this word Heirs, because the Grantor hath a Fee-simple in consideration whereof he granted the rent, Ipsae e­tenim leges, &c.

And Co. Com. f. 271. a. b. when a Feoffment is made to a future use, as to the performance of his last Will, the Feoffee shall be seised to the use of the Feoffor, and his Heires in the mean time; for the Lawes de­sire to be ruled by right and equity; And reason would, that seeing the Feoffment is made without consideration, and the Feoffor hath not disposed of the profits in the mean time, that by construction and intendment of Law, the Feoffor ought to oc­cupy the same in the mean time: And so it is when the Feoffor disposeth the profits for a particular time in presenti, the use of the Inheritance shall be to him and his Heires, as a thing not disposed of, Co. ibi­dem.

Co. l. 5. f. 100. a. The Commissioners of Sewers by the Statute of 6 H. 6. c. 5. and 23 H. 8. c. 5. ought to tax all equally, which are in danger to be endama­ged by not repairing the Banks, and not him onely who hath land adjoyning to the River; for other­wise the rage and force of the water may be so great as the value of the land adjoyning shall not serve to repaire the Banks: and therefore the Statutes will have all who be in the same perill, and are to re­ceive commodity by it to be contributory; and the statutes require equality, which well standeth with the rule of equity, for equitas, in Bracton, est quasi aequalitas, and though the Owner of the Land next adjoyning to the River, was bound by prescri­ption [Page 308] to repaire the banks of the River, yet the Commissioners ought not to charge him, only, with all, but to take all those which have lands in dan­ger, for otherwise it may, that all the country shall be surrounded, before that one person onely can repaire the Banks, vide ibidem plura In Fooks case.

Coke l 7. f. 123. b. When the King granteth any Land, without the reservation of any Tenure, or without any thing from thence to be rendred, or the like, that land by the operation of Law, shall be holden of the King in Capite, by the service of Chi­valry, according to the rate and proportion of land that affereth to one fee of Chivalry, and so of more, more, and of lesse, lesse, for the Act in Law respecteth equity, and will never charge any one with more, or lesse, then in reason and equity it ought: For as Bracton saith, jus respicit aequum. If two, four, or more, being severally seised in land, joyn in a Recognizance, all their lands must be e­qually extended.

An house that hath Copyhold, and other lands usually occupyed with it, is let for yeares with the lands appertaining, yet the Copyholds passe not without speciall naming, for then it were a for­feiture of them, for the Law construeth all things according to equity, and constraineth a generall Act, if there be any mischief, or inconvenience in it, Finch Nomot. f. 54.

So a Corody granted to one, and his Servants to sit at his Messe, he cannot bring a Servant that hath some stinking and noisome disease.

And if Estovers be granted out of a Mannor, the Grantee shall not cut down Fruit-trees.

So a Common granted to one for all his Beasts, he shall not have Common for Goats, and Geese, nor other Beasts, not Commonable, Finch ibidem.

It is no Trespasse for a man to beat his Appren­tice, which is but reasonable correction; for equity moderateth the strictnesse of the Law. Finch No­mot. f. 57.

No more is it to carry away a mans Wife against his will to a lawfull end; as to sue a divorce a­gainst her husband, or to have the Peace of him before a Justice of Peace.

So if the Lessor commeth upon the ground, it shall be intended that he came to see if Wast were done; for equity turneth all to the best, and ma­keth every Act to be lawfull, when it is indifferent, whether it be lawfull or not, Finch Nomot. f. 57. And if the Disseisee come, it shall be taken that he meant to be remitted.

And in an Action of Trespasse, if two Issues be joyned, triable in two Counties, as one in London, and another in Middlesex (without saying which of the Issues it should try) this shall be taken to try the Issue in Middlesex onely: for so the Venire facias is lawfull, and not in both Counties, which is against Law, and therefore it is a discontinuance in the City of London, and no discontinuance, Finch ibidem.

And such a desire hath the Law to be ruled by equity, as that it will feigne a thing in shew and colour, whereby the reall right and equity of the thing may more certainly be found; according to the ground, Lex fingit ubi subsistit aequitas. The Law faigneth where equity subsisteth.

Coke l. 10. f. 90. a. As the reason why the Law will give a colour in a Writ of Entry Sur-disseisin, Writ of Entry in nature of Assise, Trespass, &c. is that the Law which preferreth and favoureth cer­tainty as the Mother of quiet, and repose (to the intent, that either the Court shall adjudge upon it if the Plaintiff demurr, or that a cer­taine Issue may be taken upon a certaine point) requireth, that the Defendant when he pleadeth [Page 310] such a speciall Plea, that yet notwithstanding the Plaintiff may have right, the Defendant shall give colour to the Plaintiff, to the end that the plea shall not amount to the generall issue, and so to leave all the matter at large to the Jurors, which shall be full of multiplicity and perplexity of matter, and though the colour be but a fiction, yet the Law feigneth where equity subsisteth.

So f. 40. a. Common Recoveries are fictions in Law, and for the equity that in them is transacted, they are not onely allowed by the Common Law, for the intended recompence, but warranted by sta­tutes for their equitable use. And therefore the statute of 7 H. 8. c. 1. reciteth that divers as well No­bles as Commons have suffered Recoveries against them of divers of their Mannors for the performance of their Will, for assurance of Joyntures to their Wives, &c. The same act in approbation of common recoveries, giveth remedy to such recoveries in di­vers cases; And in Dr. & Student, c. 26. it is deter­mined, that common recoveries do bind as well in conscience as in Law, for semper in fictione legis sub­sistit aequitas: And by the statute of 23 Eliz. c. 4. it is provided, that for the avoiding of danger to com­mon assurances in lands, and for the advancement of common recoveries, that not any common reco­very shall be avoided by any want of form in words and not in matter of substance, vide ibidem plura in Mary Portingtons case.

So Co. l. 11. f. 51. a. If one disseise me, and during the Disseisin he cutteth down Trees, Grass, or the Corn, and then I re-enter, I shall have an Action of Trespasse against him, vi & armis, for the Trees, Grass, and Corn: for after my regresse, the Law, as to the Disseisor and his Servants, supposeth that the Frank-tenement hath alwaies continued in me; but if my Disseisor make a Feoffment in fee gift in tail, lease for life or yeares, and after I re-en­ter, [Page 311] I shall not have trespasse, vi & armis, against them who come in by Title; for this fiction in Law that the Frank-tenement hath continued alwaies in me, shall not have relation to make him that cometh in by Title to be a wrong doer, vi & armis: for in a fiction of Law alwaies equity existeth, vide ibidem plura.

And by these cases it appeareth that equity hath a vigorous use in the exposition of the Common Law. But this bright Star more cleerly shineth, and sheweth forth its lustre in the construction of Statutes: for as Co. Comm. f. 24. b. equity is a con­struction made by the Judges, what cases out of the letter of the Statute, yet being within the same mischief, or cause of the making of the same, shall be within the same remedy that the statute provi­deth; and the reason hereof is, for that Law­makers could not possibly set down all cases in expresse termes: and Co. Com. f. 271. b. when Lands and Tenements are conveyed upon confiden­ces, uses, and trusts, if any question groweth upon them, they are to be ruled and decided by the Judges of the Law; for they are within the intendment and construction of the Lawes of the Realm:Rhet. l. 1. c. 3. And therefore Aristotle well adviseth Legislators and Makers of Lawes, [...], to design and deter­mine of things, and to leave as little as may be to the descretion of the Judges.

But as Co. lib. 6 f. 40. b. Rerum progressus ostend [...]nt multa, quae initio praecaveri, & provideri non possint, The progresse and proceeding of things do declare and shew many things which at the beginning could not be heeded or provided for: and therefore is e­quity required to replenish and fill up those chincks and deserts which seem to be in the letter of the Law, which is therefore accordingly thus defi­ned.

Aequitas est verborum legis directio sufficiens, cum una res solummodo cavetur verbis, ut omnis alia in aequali genere iisdem caveatur verbis. Equity is a sufficient direction of the words of the Law, when one thing is provided for in the words, that every other thing in the like kind shall be provided for in the same words. And so when the words of a Statute enact one thing, they enact all other things which are in the semblable degree. As whereas the Statute of 9 E. 3. c: 31. ordaineth that in an Action of Debt against Executors, he that commeth in by distresse shall answer, the said Act shall be extended by e­quity to Administrators; for whosoever of them com­meth in first by distress shall answer by the e­quity of the said Act, because they are in the like degree. So the Statute of 4 H. 4. c. 8. giveth an especiall Assise to him who is disseised, and ousted of his land by force against the Disseisor, and it is enacted that he shall recover against him double damages: And so it is in an Assise of Nusance to turn the course of the water from the Mills of the Plaintiff with force, it was adjudged that he should recover double damages, and yet he was not put out of his land, neither was there a disseisin, but the Nusance was to the damage of his Frank-tenement, and so by the equity of the said act the Plaintiff recovered double damages, because the Nusance was in the like kind. So the Statute of Gleucester giveth an Action of Wast, &c. against him who hol­deth for life, or for yeares, and by the equity of it a man shall have an action of Wast against him who holdeth for a yeare, or for twenty weeks (and yet it is out of the words of the act) because it is in the like degree, and the cases which are of such de­gree in our Law, are infinite, Ployd. f. 165. a.

And there is another sort of equity which abrid­geth, and taketh from the letter, and is a correction of the generall words,Ethie. 30. l. 10. and is defined by Aristotle to be [...] a correction of a Law wherein it is any way want­ing, [Page 313] because of the generality of it, which also in our Law is of much use.

As when an act of Parliament is made, that who­soever shall do such an act shall be a Felon, and be put to death, and yet a man non sarae memoriae, or an Infant of tender age who hath no discretion doth it, they shall not be Felons, &c. or if a Statute be made, that all persons who shall receive or give meat or drink, or other aid to one who shall do a fe­lonious act shall be accessory to the Offence, and be put to death, yet if one doth such an act and commeth to his wife, who knowing it receiveth him and giveth meat and drink unto him, she shall not be accessory nor Felon; for in the generality of the said words of the Law, he of non sanae memoriae, nor Infant, nor a Wife shall not be included, and so e­quity correcteth the generality of the Law in those cases, and the words generall are by equity abrid­ged: so the Statute of Champerty, W. 2. l. 49. & Arti. super Chart. contra probatos, men generally do receive Lands and Tenements while the thing is in plea, yet M. 16. R. 2. accord it was said by the whole Court in a Writ of Champerty, that if I bargaine any lands before any Writ brought, and after the Writ purchased I deliver Seisin.

That the Writ of Champerty doth not lye, be­cause it shall not be intended that the Bargain was made for such cause, and that by equity, for when he bargained and promised the land upon just consi­deration, before any action brought against him, it was his act to perform it notwithstanding the action

And Costle promoter of the King, brought an acti­on of Extortion. H. 21. H. 7. 16. against an under-Sheriff grounded upon the Statute of 23 H. 6. c. 10. which ordaineth, that neither the Sheriff, Goaler, or Ministers, nor any of them by colour of their Of­fice shall take any thing, profit, &c. of any person for fine, fee or ease of prison, but for the Sheriff 20 d. the Bayliff 4 d. and the Goaler 4 d. supposing that he had taken 20 d. above the same limited upon the Statute▪ and upon demurrer it appeared upon evidence to the [Page 314] Court, that all under Sherifs of the same county, have used, from the time whereof memory doth not run, to have of every prisoner in their ward for suspition of Felony, when they are acquitted, twenty pence, called the Bar fee, and the twenty pence supposed to be taken, were taken from the person named in the count, being acquitted for a Bar-fee; and the opinion of the whole Court was, that it was out of the raise of the Statute, though it was within the words of the Statute, for that the sum of a Bar-fee was assigned to the Sheriff, at the beginning by the order, and discretion of the Court, in respect of his labour and charge he had with the prisoners, and for his attendance, and for his ministry when the prisoners are brought to their delivery, and so that payment was with reason, and good conscience, which the intent of the makers of the act was not to take away, and so equity did put an excep­tion to the generality of that text of the Statute Law.

So the Statute of W. 2. c. 4. ordaineth that where a man, rat, or dog, escapeth alive out of a Ship, neither the Ship nor any thing that is within it shall be adjudged wrack, but all the things shall be saved, and kept by the view of the Sheriff, &c. in the hands of those of the Towne where the things were found: so that if any one can prove that they are his within a yeare and a day, they shall be restored to him; and whosoever doth other­wise shall be awarded to prison, and remaine at the will of the King, and render damages: yet if the goods within the Ship be such things as will not en­dure for a yeare and a day, the Sheriff may sell them and deliver the mony taken, for them to the Towne to answer for it, and that by equity, though it be against the words of the said Act.

So the Act of 2. E. 6. c. 14. Which giveth to the King all Lands, and Tenements by any assurance, conveyance, given, assigned, or limited to find any preacher to have continuance for ever, &c. if the [Page 315] words of that act should be taken generally, they give to the King al the houses, and glebe Lands of all Par­sons and Vicars: but equity putteth in that text, the exception of Parsonages and Vicarages; because it was not the intention of the makers of that Act, Ployd. f. 466. vide ibidem plura.

There is another excellent use of equity which consisteth in guiding the grounds and maxims of of things which seem to crosse, and thwart one ano­ther; for, as Sir John Doderidge, English Lawyer, f. 209. it is scarcely possi­ble to make any second rule of Law, but that it shall faile in some particular case, whence springeth this often used assertion. Non est regula quin fallit, for as Cato saith, vix ulla lex fieri potest, quae omnibus commoda sit; sed si majori parti prospiciat utilis est; there can scarce any Law be made, which shall fit all men, but if it provideth for the greater part it is profitable; and therefore the ordainers, and inter­pretors of Laws, respect rather those things which may often happen, and not every particular cir­cumstance: for the which though they would, they shall not be able, by any positive Law, to make pro­vision; and for the like reason, Mr. Ploydon saith, that Law is reasonable, that provideth for the mul­titude, though that some persons loose by it, f. 369. b.

By reason whereof they doe permit the rules, actions, and propositions of the Common Law, upon discourse and disputation of reason, to be restrained by exceptions, which are grounded upon two causes; the one is equity, the other is some ground or rule proposed, wherein, for conformities sake, and that no absurdity, or contradiction be permitted, cer­taine exceptions are framed, which doe not onely knit and conjoyne one rule of reason to another: but by meanes of their equity, temper the rigor of the Law, which, upon some certaine circumstances, in every of the said rules might happen and fall out, & omnia bene aequiparat, as Bracton saith,Nomot. f. 14.

But as Sir Hen. Fi. saith, this crossing and encoun­tring of one ground, and maxime with another, if [Page 316] the greatest difficulty we finde in the arguing of our cases; but to help this, we are to prefer those, and those are to prevaile that carry the more ex­cellent perfect reason, and equity with them; and Sir Francis Bacon saith, it is a point worthy to be observed generally in the rules of the Law, that where they encounter or crosse one another in any case, it be understood that the Law holdeth worthi­er, and which rules are of more equity, or humanity; but now to give you some examples of them, which allwayes doe illustrate, Coke com. 183.

It is a maxime in the Law, Quaelibet concessio for­tissime contra donatorem interpretanda est, every grant shall be taken most strongly against himselfe, as if Lands be letten, or a rent granted, an estate for life passeth, for that is most strongly against himselfe, which is to be understood that no wrong be thereby done, for there is another rule in the Civill Law, ea est accipienda interpretatio, quae vitio caret, and a maxime in our Law, that legis constructio non facie injuriam; the interpretative construction of Law shall wrong no man; and therefore if tenant for life maketh a lease generally, it shall be taken for his own life, or else it should worke a wrong to him in reversion, and so it is if tenant in taile should make a lease generally, for otherwise it should worke a dis­continuance, and a wrong, vide ibidem.

So if tenant in fee maketh a lease for life, with­out mentioning for whose life, it shall be deemed for the life of the Lessee, and shall be taken more strongly against the Lessor, but if tenant entaile maketh such a lease for life without expressing for whose life, this shall be taken for the life of the Lessor, because otherwise it would work a wrong, Coke Com. f. 42. a.

So if an Executor grant all his Goods and Chat­tells, the goods which he hath as Executor will not passe, because it may be a devestation and a wrong, yet against the trespassor he shall declare, quod bona sua cepit, 10. E. 4.1.

So it is a rule, verba ita sunt intelligenda, ut res ma­gis valeat, quam pereat, words are so to be understood, that the matter may prevaile rather then perish, as if I give Lands to I. S. and his Heires rendring five pounds yearly to I. S. and his Heires, this im­plyeth a condition to me, that am the Grantor; yet were it a stronger exposition against me, to say the limitation should be void, and the Feoffment absolute, Bacon. Max. f. 15.

If the Chancelor dyeth before his servants pri­viledge discussed in bank;35. H. 6. 3. 172. b. yet it shall be allowed con­trary to the rule, sublata causa tollitur effectus, but there is another rule, actus legis nulli facit injuriam, the act of the Law prejudiceth no man, and for that reason, the Court shall not prejudice him, where no folly was in himselfe.

It is a ground, qui male agit odit lucem, and there­fore the Law countenanceth more things done in the day, then in the night, as the party hath all the day till night to pay his rent, and if it be a great sum he must be ready as long before the Sun set as the mony may be told; for the other, is not bound to tell it in the night, and a man must not distraine in the night time for rent behind, yet is there another ground in the Law, quod necessarium, est lici­tum, and therefore when there is a necessity of doing things, they may be done in the night time, as an arbitrement made, and delivered in writing the last day after the Sun set is good enough, for judgements, and arbitrements require long advice, so may goods be distrained for in the night for damage feasant, and a man may be arrested in the night, for other­wise peradventure he shall not doe it at all.

It is a ground in the Law, nihil agit in seipsum, no man can doe an act to himself, yet if one of the Chapter enfeoff the Deane and Chapter, by that he he himselfe shall take by his own livery, because the Law in that case cannot doe otherwise; so a feme tenant in Socage may endow her selfe, and an Exe­cutor pay himselfe.

It is a ground in the Law, certa debet esse natratio counts and declarations must be certaine, yet things which containe a necessary implication are good enough, for it is another ground, non refert quid ex aequipollentibus fiat, it mattereth not what is done by equippollent, or words which amount to such a sense, as in an Ejectione firmae, &c. In a count of a lease made by tenant for life, it sufficeth to say that the Lessor is yet seised without the alledging of his life expresly, because it amounteth to the same sense by necessary implication.

So in an information upon the Statute of usury, and he counts that the Defendant took, per viam, & medium corruptae mutnationis, by the way and means of corrupt borrowing, whereas it should be accomodationis plaudingo, and yet good enough.

It is a ground qui facit per alium facit per se, things done by another are as it were done by himselfe, yet is there another rule, that corporall and personall things cannot be done by another, as suite of Court cannot be done by another, 7. H. 4.9.

Otium est mater omnium vitiorum, Coke l 11. f. 53. b. As all vertue consisteth in action, so vice consisteth in idlenesse, for idlenesse is the mother of all vices, and as Coke there saith, principally in young men, who ought in their youth to learne profitable scien­ces, and trades which are profitable to the weale publick, of which they may reape the fruites in their old age, for jeunesse oisense vilesse disettense, if in our youth we be idle, in our old age we shall be indigent, and for that reason the common Law detesteth all Monopolies, which prohibit any one to work in any Lawfull trade, and that appeareth in 2. H. 5. b. A Dyer was bound, that he shall not use his Diers craft for two yeares, and there Hull said that the obligation was against the common Law, and that, by God, if the Plaintiff were here he should goe to prison untill he had made fine to the King, and so for the same cause if an husbandman be bound, that he shall not till and sow the ground, [Page 319] the obligation is against the common Law: And therefore the act of 5. Eliz. c. 4. that prohibited any person to use, or exercise any craft, mistery, or occupation, unlesse he had been an Apprentice for seven yeares, doth not make provision onely to the intent that the artificers may be skilfull, but that young men shall not be idle in their youth, but trained and brought up in lawfull sciences and trades, and so by the same reason the common Law doth not prohibit any person to use many Arts, and Misteries at his pleasure; for, nemo prohibitur plures negotiationes, sive Artes exercere, untill it was prohi­bited by the Act of Parliament, 37. E. 3. 6. That all Artificers, &c. are bound every one to one miste­ry, and that none use other mistery but that he hath chosen; but because that restraint of free trade was prejudiciall to the weale publick, at the next Par­liament it was enacted that all people should be so free as they were before that Ordinance, by which it appeareth that without Act of Parliament, no man can be in any manner restrained to worke in any lawfull trade.

Non negligentibus sed impotentibus succurrendum, Reg. I. C.

Vigilantibus non dormientibus jura subveniant, Ployd. f. 357. b. The Law helpeth, and releiveth those are impotent, not those are negligent.

As if you disseise me of my Land, and then A. bringeth a Writ of right against you, and you joyn the mise upon the meer right, and you make default after the mise joyned, he shall recover to him, and his Heires for ever, quit of you, and your Heires for ever; and if I doe not lay my claime within a yeare & a day, I am barred for ever, for the Law succoureth those that are watchfull, and not sleepy: so as non-claime by a yeare and a day, upon a recovery by de­fault, where finall judgement is given was a good Bar by the common Law, 5. E. 3.222. by Hor.

A descent cast during the Coverture (where the [Page 320] wife is disseised) barreth her not of her entry after her husbands death, but if a feme-sole be disseised, and then taketh an husband, there a descent du­ring the coverture, taketh away her entry; for it was her folly to take such an husband, that entred not in time, Littleton. 95.

Negligentia semper habet comitem infortunium, Coke l. 8. f. 133. a. Sa. Turnors case.

An Executor of an Administrator ought to exe­cute his office, and administereth the goods of the dead, lawfully, truly, and diligently, Lawfully in the payment of all dueties, debts, and legacies in such precedency, and order as they ought to be paid by the Law; truly to convert nothing to his own use, and ought not by any practise, or devise to bar, or hinder any creditor of his debt, but ought truly to execute his office according to the trust reposed in him; And diligently as in the case at bar, for when the Administrators which had judgement for one hundred pounds, for sixty pounds, and the Plaintiff offered a release, or to acknowledge satisfaction, and he deferreth it to the intent that the Judge­ment shall stand in force, by which the Plaintiff shall be defrauded of his due debt, and the Admin­istrators to convert the goods of the debt to their private use: let the agreement be precedent before the recovery, or subsequent since the recovery, it is all one, as to the creditor who is a third person, for he is defrauded as well by the one as the other, and the creditor who is a stranger shall loose his debt, which is by the Law due to him; and if any preju­dice accreweth to the Administrators, in this case it is in his own default, for the Plaintiff would have released to them, or acknowledged satisfaction, but they defer it to the intent to bar the Plaintiff of his just and true debt, and negligence hath allwayes misfortune, or ill luck for her companion, Ibi­dem.

Coke l. 2. f. 26. b. If a creditor upon a commis­sion upon a Statute of Bankrupt, either by obstinacy [Page 321] doe refuse, or by carelessnesse neglect to come be­fore the Commissioners within the time limited, and to crave the benefit of the Act, he looseth the benefit thereof; for the Law releiveth those which are vigilant, and not dormant, for otherwise a debt may be concealed; or a creditor may absent him­selfe, and void the proceedings of the Commissio­ners, and every creditor ought to take notice of the commission, it being a matter of record.

Coke l. 4. f. 10. b. in Bevills case, it was said that the Act of 32. H. 8. c. 2. by expresse words exten­deth onely to actuall possession, and seisin, and not to releive those which for so long time had neg­lected to have actuall seisin of their services, and namely of suite, which ought to be made twice eve­ry yeare, and it was said that it was crassa, & supina negligentia, which that Law did not intend to re­leive, for as it is commonly said, vigilantibus, &c. Ibidem.

Coke l. 4. f. 82. b. in Sir Andrew Corbets case, who deviseth Lands to R. C. and others to have and to hold to them, and the survivor of them, untill such time that the summ of eight hundred pounds, &c. was received out of the issues, rents, &c. for the preferment of his Daughters, it was resolved, though the Devisee had notice of the devise, yet if a stranger had occupied the Land, the Devisee ought to take notice at his perill, for vigilantibus, &c. and none by the Law in such case is bound to give him notice, as in the case of arbitrement, 1. H. 7.5.8. E. 4.1. ibidem.

And this is the reason of a lapse incurring for want of presentment, or of a warranty barring for lack of entry, or of descents barring for want of claime, and a title to tenant in courtesy is lost for lack of entry, and that Statutes of limitation do bar actions.

One seised of Lands devisable deviseth that his Executors shall sell his Land, and distribute the pro­fits for the use of the poore, and dyeth; If a stran­ger [Page 322] tendreth them mony for the Land, and they in­tending to sell it more deere, defer the sale for two yeares, and take the profits themselves, the heire for the laches, and long delay may enter and put them out of the Land, 38. Ass. Pl. 3. 39. Ass. Pl. 3.

A man indebted by specialty, or upon an account determined, tendreth the mony to the Debtee after the day in which it was due and payable, and it is refused, and after mony is embased: it seemeth to many that the debtor shall beare the losse, although he had made tender at the very day of payment, be­cause he must say, vncor prist, Dyer f. 83. Pl. 76.

Caveat Emptor, Coke Com. f. 102. a. Let the the buyer be vigilant, and wary what he buyeth, for though by the Civill Law, every man is bound to warrant the thing that he selleth, and conveyeth, yet the Common Law bindeth him nor, unlesse there be a warranty either in Deed, or in Law, Ibi.

Coke l. 4. f. 26. a. A Copy-holder who is out of possession ought not to sell his Land untill he hath gained the possession, and if any one will purchase any title he is not to be favored, but in such case Caveat Emptor, let the buyer take heed for if any one hath a pretended right and title to Copy-hold Land, bargaine and sell it to another, it is within the Sta­tute of 32. H. 8. c. 5. vide ibidem plura.

If I take an horse of another mans, and sell him, and the owner taketh him againe, I may have an action of debt for the mony, for the bargaine was perfect by the delivery of the horse, & Caveat Emptor, Nay. Max f. 94.

If I sell my Horse to another man, for ten hun­dred pounds, who taketh his horse againe, I shall have all the mony, Ibidem f. 95.

Qui timent, caveant, & vitent, Offi. of Exe. 251. They who feare are wary to shun dangers, as an Executors office is dangerous, and therefore ought to feare what encombrances fall on him, and to keep goods to pay, all debts, if any should be concealed.

Non temere credere nervus est sapientiae, Coke. l. 5. f. [Page 323] 114. b. Not hastely to beleive is the sinew of wis­dome, and therefore the Law hath appointed the last time in the day to pay mony, upon a condition that both parties may certainly meet together, which is founded on the experience of the sages, least any of the parties should be constrained to make a Letter of Attorny; or repose confidence, or trust in any other to pay it for him when he will doe it for him­selfe: And it is wisdome not rashly to trust any.

Caveat actor. Reg. I. C. Let the actor beware what he doth.

One entreth into Bond to A. that he and A. shall stand to the Arbitrement of I. S. If A. refuse, he him­himselfe shall take the forfeiture of the Bond.

If a man have a Chappell, which is his donation by Letters Patents, and he presenteth me his clerk to the Ordinary, he shal not make collation afterwards.

If a Parson impropriate, presenteth one to a Church, it maketh it disappropriate.

If he who holdeth his Land by homage, and feal­ty, taketh his Land of the King by office found that he holdeth it by forty shillings per annum, he shall pay the rent hereafter.

Abundans cautela non nocet, Coke l. 11 f. 6. b. An abundance of circumspection doth not hurt, vide ibi.

Qui sentit onus, sentire debet & commodum, Coke l. 1. f. 99. a. He who beareth the burden and taketh the paines ought to receive the profit, as if a Feoff­ment be upon condition, that if the Feoffor or his Heirs pay the sum of 20 l. or to doe any act before a certain day, that they shall re-enter in this case, if the father dye before the day of paymenr, and the daughter for the safe-gard of the inheritance pay the mony, or satisfieth the condition, in this case the Son after borne shall not devest it, for if the daugh­ter had not performed the condition, the Land had been utterly lost, and therefore in this case a good argument may be made that the daughter shall de­taine the Land, for Qui sentit onus sentire debet & Commodum, ibidem, vide Hobart Rrep. fo. 4. in Youngs, and Radfords case.

Ployd. f. 514. Trevilian was Tenant in tail of Te­nements, and he being only seised of such an estate, a common recovery was had against him, and Avice his wife, who vouched over according to the course of common recoveries, and it was found that the wife had nothing in the Tenements: the husband dyeth, the wife shall have nothing of the intended recompence in the case; because she had nothing in the Tenements, and so could lose nothing.

If Tenant for life or in Dower do devise the Corn growing on the ground upon the land at the time of their death, this is a good Devise, and he in the reversion shall not have it, 4 H. 3. Devise 26. And the Statute of Merton which saith, Omnes viduae pos­sunt legare sua blada, is but an affirmation of the common Law, which was used in the time of H. 3. 19 H. 6. 6.

A man seised of land in see, in right of his wife, leaseth the land to a stranger, and the Lessee soweth the land, and after the wife dyeth, the Corn being not ripe, the Lessee may devise the corn, and yet his estate is determined, 7 E. 3. 67.

A man seised of land in the right of his wife, and soweth it, and deviseth the Corn growing on the ground, and dyeth before it is severed, the Devisee shall have it, and not the wife, 7. Ass. pl. 19.

One seised of lands in fee, hath Issue a Daugh­ter, and dyeth, his wife Privement Ensaint with a Son, the Daughter entereth and soweth the land, and before the severance a Son is born, and his next friend entereth: yet the Daughter may devise the Corn growing on the land. If a Mannor be put in execution upon a Statute-merchant, and the Conu­see sow the land, he may well devise the Corn grow­ing on the ground, Perkins f. 100. vide ibidem plura.

Qui sentit commodum sentire debet & onus, Cok. l. 5. f. 24. He that feeleth or reapeth the profit must bear the burthen, and the charges.

A man leaseth an house by Indenture for years, [Page 325] and the Lessee covenanteth for him, and his Exe­cutors to repaire the house at all times necessary; The Lessee assigneth it over to H. who suffereth it to decay; the Lessee bringeth an action of Covenant against the Assignee, and it was adjudged the a­ction did lye, in that the Lessee had taken upon him to bear the charges of reparation, the annuall rent was the less, which trenched to the benefit of the Assignee, and he that enjoyeth the profit must bear the burthen and charges, vide ibidem plura.

Co. l. 5. f. 100. a. The Statutes will have all those which are in perill, and which are to take comodi­ty by the making of the banks of a River to be con­tributory to it: for Qui sentit commodum &c.

Coke l. 7. f. 39. b. If a man grant a Rent-charge for life out of his land, and the rent is behind, and the Grantor enfeoff A. and the rent is behind in his time, and after A. enfeoffeth B. and the rent is be­hind in his time, and then the Grantee dyeth, the Executor shall have an action of debt against every of them for the rent behind in his time, for qui s [...]ntit commodum, &c. and so was it holden in Ognels case, l. 4. f. 49. a. 50.

Barons uses, f. 27. If a man bind himself and his Heires in an Obligation, or do covenant in writing for him and his Heires, or do grant an annuity for him and his Heirs, or do make a Warranty of land binding him and his Heires to warranty, in all these cases the Heir after the death of the Ancestor is by Law charged with this Obligation, Covenant, An­nuity, and Warranty, yet with these three cautions; 1. That the party must by speciall name bind him­self and his Heires. 2. That some action must be brought against the Heir, whilest the land or other inheritance rested in him unaliened, except the land was conveyed away by fraud, and one purpose to prevent the Suit intended against him: And 3. That no Heire is further to be charged then the va­lue of the land descended unto him from the same Ancestor, &c. nor to be sold out-right for the debt [Page 326] to be kept in extent at a yearely value, untill the debt or damage be run out. Neverthelesse for his false plea shall he be charged of his own lands, for this Deed of his Ancestor, and the reason of this charge is, Qui sentit commodum sentire debet incom­modum & onus, vide ibidem plura.

Dilationes sunt in lege odiosae. Ployd. f. 75. b. De­laies are tedious in the Law, and therefore doth the Law favour Assise, because they are the more speedy Suits the Law hath given, as the Statute of W. 2. c. 25. in its recitall saith: Et quia non est a­liquod breve in Cancelaria, per quod quaerentes habent tam festinum remedium sicut per breve. Nove disseisinae. And therefore because it is the more speedy Suit, the Law the more greatly favoureth it, ibidem

For, for speed to the Plaintiff, the Jurors shal have the view before appearance by the words of the Writ. And though Warranties are favoured in Law, yet none shall vouch in Assise any one, if he be not present, and that is for the speed of the Plain­tiff, No. Nat. br. f. 178. And a protection will not de­fend the party against an assise, but assises are ac­cepted by the words of protection, p. 2. H. 6. 42. B [...]. protection 53. And all things and pleas which go in retardation, or abatement of Assises, are esteemed odious, and therefore exceptions which will abate, other Writs shall not abate Assises, if it be so, that there is a Disseisor and a Tenant, for it is the sub­stance of the Suit, and therefore the misnaming of one of the Defendants shall not abate the assise, if there be another Disseisin and Tenant, and yet the Writ was alwaies false, Plo [...]d. f. 98. a. b.

And if the Tenant plead Joynt-tenancy with a stranger not named, although the Plaintiff confesse it, yet it shall not abate his assise, but for it onely, & for the remnant, the Writ and Plaint shall stand in his force, and yet the Plaint was altogether false, and if there be a Disseisor and Tenant for any part, then it sufficeth, for other verity in the Writ or Plaint the Law requireth none, and to say that one [Page 327] named in the Writ is dead, before the Writ purcha­sed, or that there was never any such in rerum natu­ra is alone, and shall be adjudged no plea in abate­ment of the Writ, but if there be another Disseisor and a Tenant, the Writ shall be good against them, Ployd. f 90. a. vide ibidem plura.

And though in actions reall, as the weight of the cause requireth, there are longer times given in their proceedings, then in personall actions, yet it ap­peareth by Fortescue, de lib. l. A. c. 5. 3. that they are not too long, nor admitted without just cause. Cre­bro enim saith he, deliberationibus iu [...]icia matur scunt, sed in accelerato processu numquam. And as Hobert saith, f. 133. Festinatio j [...]stitiae est n [...]verca infortunii, Festination of Justice is the step-mother of mischief; but many times by deliberations Judgments grow to ripenesse, but in over hasty processe never; yet the Demandant shall come to a finall end by these actions, which he shall never do by prose­cution of personall actions for the tryall of a Free­hold or Inheritance, Co. ep. ad lectorem, lib. 8.

And in all cases the Law favoureth speeding of mens Causes, and hateth delayes, as 3 H. 6. 15. b. He that pleadeth a Record in delay, as to prove the Plaintiff excommunicate, must have it ready to shew, but otherwise it is if he plead in bar.

In dilatory pleas both Defendants must joyne, 12 H. 7. 1.

A Plea in bar that is dilatory must be good to e­very common intent, 8 H. 7. 9.

One who is in Court ready to joyn with the De­fendant may do it without processe: As the Vou­chee the Plaintiffs Lessor being prayed in aid of, when the Defendant in a Replevin avoweth upon him or the Mesne, when the Lord Paramount vow­eth upon him. But Joynder in aid cannot be by an Attorney without processe 2 H. 6. 1. b.

One who is a Debtor to the King of Record in the Exchequer, if he be seen in the Court may be brought in to answer, 2 H. 6 4. b.

An assise of Darrein presentment was brought, and it was pleaded in abatement of the Writ, that the same Plaintiff had brought a Quare impedit a­gainst the Defendant for the same Church, and the Court was of opinion that it was a good plea, for the Quare impedit is of an higher nature for the right and possession: and the Statute of W. 2. l. 5. saith, that it may be in the election of one to have an assise of Darrein-presentment, or a Quare impedit, ergo not both: And it was adjudged p. 15 Jaco. that one cannot have two Quare Impedits of one Church, for one avoidance, Hutton f. 403.

When the Law giveth a man severall remedies for a thing, he cannot have both of them together, as Littleton saith, for then he should recover one thing twice, which should be a double charge and a double vexation to the Defendant, Co. Com. 145. a. as if I grant by Deed a Rent-charge to another, the Grantee hath election to bring a Writ of Annuity, and charge, the person onely to make it personall, or to distrain upon the land and make it reall, but he cannot have both after the Grantee hath deter­mined his election, but this determination of ele­ction must be by action in Court of Record: for albeit the Grantee bringeth a Writ of Annuity, he may distrain and discharge the person, but if he bring a Writ of Annuity, and therupon appeare and Court, this is a determination of his election in Court of Records, albeit he never proceed any fur­ther: as if the Wife be endowed ex assensu patris, if she, after her Husbands death, bringeth a Writ of Dower at the Common Law, and Count, albeit she recover not, she shall never claim her Dower ex as­sensu patris, because she hath determined her electi­on. So if the Grantee bring an assise for rent, and make his Plaint, he shall never after bring a Writ of Annuity, and if he distrain and avow the prisall of the Distresse in a Court of Record, it is a determi­nation of his election before any judgment g [...]ven, ac­cording to the rule, Electio semel facta & placitum [Page 329] testatum, non patiter regressum, Co. Com. 220. a. But o­therwise it is where a man hath election to have severall remedies; for a thing is meerly personall, or meerly reall from the beginning: as if a man may have an action of debt or an action of account at his pleasure, and appear to it, and after is non-suit, yet may he have an action of debt afterwards, be­cause both actions charge the person, the like Law is an assise, and a Writ of Entry in the nature of as­sise, ibidem.

W. brought an action of the case against F. and declared that the Defendant had sued out a Fieri facias upon a judgment given against him for the Defendant, and by virtue thereof took Goods of the Plaintiff to the value of the Damage, and so made his return pro def [...]ctu emptoris, and that the Defen­dant, well knowing this, to the intent to trouble, vex, and charge him, did afterwards sue out another Fieri facias to the same Sheriff, and delivered it to be exexecuted, who did thereupon levie the money of other Goods of the Plaintiff, and paid it over to the Defendant, whereby the now Plaintiff was dou­ble charged; whereupon the Defendant pleaded not guilty, and it was found against him, and it was adjudged for the Plaintiff, because he was twice vexed and disturbed, and that wilfully by the De­fendant, who had first one execution inchoate, which he ought to have followed, we all knowing it, and not to have taken another:) but if he had been ignorant and had not known of the Goods first ta­ken, he had not been lyable to the other action, Hob. 37.3. Waterers case.

Euilibet in sua arte perito est credendum: & om­nes prudentes eos admittere solent, qui probantur ab iis qui in sua arte bene versati sunt, Arist. 1. Topic. c. 6. Co. l. 7. f. 19. a. The reason of the wisest man which professeth not the Lawes of England, in cases which concern the Lawes of England, is not to be beleived, but the legall and profound reason of such, who by diligence, study, and long experience and observa­tion, [Page 330] are so learned in the Lawes of this Realm, as out of the reason of the same they can rule the case in question, in this sense this rule is to be ta­ken, that we are to beleive every one in his art, and all wise men are wont to admit those things which are approved by them are well versed in their own Art.

Coke l. 4. f. 29. a. Agnes was contracted to Bun­ting, and after married, Twede Bunting libelleth against Agnes in the Court of Audience upon the said Contract, and upon the proceedings of which Libell, it was decreed that the said Agnes should undergo marriage with the said Bunting, and there­upon it was pronounced, decreed, and declared the said marriage with Twede to be null: And though that Twede being de facto husband of the said Ag­nes, was neither party to the said Suit, nor to the sentence in the Spirituall Court which dissolved the marriage between him and the said Agnes, but rhe said Agnes only, yet the sentence against the Feme onely being onely declaratory, was good and shall bind the Baron de facto; and in regard that the Cog­nisance of marriages appertain to the Ecclesia­sticall Court, and the same Court had given sen­tence in this case, the Judges of our Law ought to give faith and credit to their proceedings, and sen­tence, (although it be contrary to the reason of our Law) and to think that their proceedings are con­sonant to the Law of the holy Church, for we are to beleive every one is skilfull in his art, vide ibidem plura, Coke l. 5. f. 7. in Caudries case.