THE ENGLISH EXPERIENCE
ITS RECORD IN EARLY PRINTED BOOKS PUBLISHED IN FACSIMILE
OF THE COMMON LAWES
DA CAPO PRESS
THEATRVM ORBIS TERRARVM LTD. AMSTERDAM 1969 NEW YORK
The publishers acknowledge their gratitude to the Curators of the Bodleian Library, Oxford
for their permission to reproduce the Library's copy. (Shelfmark: G. Pamph.2315(4) and 4░.G.44. Art)
The title-page and quire A of volume I are reproduced,
from the copy in the British Museum (Shelfmark: 508.C.8.),
by kind permission of the Trustees.
S.T.C.No.1134 Collation: unsigned1, A-B4, *2, C-P4.Part 2: A-L4, M2
Published in 1969 by
Theatrum Orbis Terrarum Ltd,
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OF THE COM-
MON LAWES OF
Branched into a double Tract:
Contayning a Collection of some principall Rules and Maximes of the Common Law, with their Latitude and Extent.
Explicated for the more facile Introduction of such as are
studiously addicted to that noble Profession.
The Use of the Common Law, or preservation, of our Persons, Goods, and good Names.
According to the Lawes and Customs of this Land.
By the late Sir Francis Bacon Knight, Lo: Verulam and Viscount S. Alban.
LONDON, Printed by the Assignes of J. More Esq. 1630.
OF SOME PRINCIPALL
RULES and MAXIMES of the
Common Lawes of
WITH THEIR LATITUDE and EXTENT,
Explicated for the more facile Introdu-
ction of such as are studiously addicted to that noble Profession.
By Sir FRANCIS BACON, then Sollicitor
generall to the late renowned Queene Eli-
zabeth, and since Lord Chancellor
Orbe paruo sed non occiduo.
Printed by the Assignes of John Moore Esq, Anno clo.lo.c.xxx.
[The Epistle Dedicatorie.]
I Doe here most humbly present and dedicate unto your Sacred Majesty a sheafe and cluster of fruit, of the good and favourable season, which by the influence of your happy government wee enioy; for if it be true, that silent leges inter arma, it is also as true, that your Majesty is in a double respect the life of our lawes: Once, because without your authority they are but litera mortua, and againe, because you are the life of our peace, without which lawes are put to silence; and as the vitall spirits doe not onely maintaine and move the body, but also contend to perfect and renew it, so your Sacred Majesty, who is anima legis, doth not only give unto your lawes force and vigour, but also hath bin
carefull of their amendment and reforming; wherein your Majesties proceeding may be compared as in that part of your government (for if your government bee considered in all the parts, it is incomparable) with the former doings of the most excellent Princes that ever have reigned, whose study altogether hath beene alwayes to adorne and honour times of peace, with the amendment of the policy of their lawes. Of this proceeding in Augustus C´┐Żsar, the testimony yet remaines.
Pace data terris animum ad civilia vertit Iura suum, legesq; tulitiustiisimus aucttor.2 Hence was collected the difference betweene gesta in armis and acta in toga, whereof he disputeth thus. Ecquid est quod tam proprie dici potest, actum eius qui togatus in republica cum potestate imperioq; versatus sit, quam lex? qu´┐Żre acta Gracchi? leges Sempronij proferantur, qu´┐Żre Sill´┐Ż Corneli´┐Ż? quid Cu. Pom. tertius consulatus in quibus actis consistet? nempe, in legibus: ´┐Ż C´┐Żsare ipsosi qu´┐Żreres quidnam egisset in urbe, & toga leges multas se responderet & pr´┐Żclaras tulisse.
The same desire long after did spring in the Emperor Justinian, being rightly called, Ultimus Imperatorum Romanorum, who having peace in the heart of his Empire, and making his warres prosperously in the remote places of his dominions by his liuetenants, chose it for a monument and honour of his government, to revise the Romane lawes from infinite volumes, and much repugnancy, into one com-
petent and uniforme corps of law; of which matter himselfe doth speake gloriously, and yet aptly calling of it, proprium & sanctissirnum templum iustiti´┐Ż consecratum, a worke of great excellency, indeed, as may well appeare in that France, Italy, & Spaine, which have long since shaken off the yoke of the Romane Empire, doe yet neverthelesse continue to use the policy of that law; but more excellent had the worke beene, save that the mere ignorant, and obscure time undertooke to correct the more learned and flourishing time. To conclude with the domesticall example of one of your Majesties royall Ancestors; King Edward the first your Majesties famous progenitor, and the principall Law-giver of our nation, after hee had in his younger yeares given himselfe satisfaction in the glory of armes, by the enterprise of the holy land, and having inward peace, otherwise then for the invasions which himselfe made upon Wales and Scotland, parts farre distant from the Centre of the Realme, hee bent himselfe to endow his state with sundry notable and fundamentall lawes, upon which the government hath ever since principally rested: of this example, and others the like, two reasons may bee given; the one, because that Kings, which either by the moderation of their natures, or the maturity of their years and judgement, do temper their magnanimity with justice, do wisely consider & conceive of the exploits of ambitious warres, as actions rather great than good, and so distasted with that course of winning honour, they concert their mindes rather to doe somewhat for the better uniting of humane society,
than for the dissolving or disturbing of the same. Another reason is, because times of peace, for the most part drawing with them abundance of wealth, and finenesse of cunning, doe draw also in further consequence multitudes of suits, and controversies, and abuses of law by evasions, and devices; which inconveniencies in such time growing more general, do more instantly sollicite for the amendment of laws, to restraine and represse them.
Your Majesties reigne having beene blessed from the Highest with inward peace, and falling into an age wherein if science bee increased, conscience is rather decayed, and if mens wits bee great, their wills bee greater; and wherein also lawes are multiplied in number, and slackened in vigour and execution, It was not possible but that not onely suits in law should multiply and increase (whereof a great part are alwaies unjust) but also that all the indirect courses and practices to abuse law and justice should have bin much attempted and put in use,4 which no doubt had bred greater enormities, had they not by the royall policy of your Majesty, by the censure and fore-sight of your Councell table and Star-chamber, and by the gravity and integrity of your Benches beene repressed and restrained; for it may bee truly observed, that as concerning frauds in contracts, bargaines and assurances, and abuses of lawes by delayes, covins, vexations, and corruptions in Informers, Jurors, Ministers of justice, and the like; there have beene sundry excellent statutes made in your Majesties time, more in number, and more politique in provision, than in any
your Majesties predecessors times.
But I am an unworthy witnesse to your Majesty, of an higher intention and project, both by that which was published by your Chancellor in full Parliament from your royall mouth, in the 35. of your happie reigne; and much more by that which I have beene since vouchsafed to understand from your Majestie, imparting a purpose for these many yeares, infused into your Majesties breast, to enter into a generall amendment of the states of your lawes, and to reduce them to more brevity and certaintie, that the great hollownesse and unsafety in assurances of lands and goods may bee strengthened, the swarving5 penalties that lye upon many subjects removed, the execution of many profitable lawes revived, the Judge better directed in his sentence, the Counsellor better warranted in his counsaile, the Student eased in his reading, the contentious Suitor that seeketh but vexation disarmed, and the honest Suitor that seeketh but to obtaine his right, relieved; which purpose and intention as it did strike mee with great admiration, when I heard it, so it might bee acknowledged to bee one of the most chosen works, and of highest merit and beneficence towards the subject that ever entred into the minde of any King; greater than wee can imagine, because the imperfections and dangers of the lawes are covered under the clemency and excellent temper of your Majesties government. And though there bee rare presidents of it in government, as it commeth to passe in things so excellent, there being no president full in view but of Justinian, yet I must say as Cicero
4 Original has "vre".
5 Original was swaruing. Might be swarming or swareing.
said to C´┐Żsar, Nihil vulgatum te dignum videri potest, and as it is no doubt a precious seed sowne in your Majesties heart by the hand of Gods divine Majestie, so I hope in the maturity of your Majesties owne time it will come up and beare fruit. But to returne thence whither I have beene carried, observing in your Majesty, upon so notable proofes and grounds, this disposition in generall of a prudent and royall regard to the amendment of your lawes, and having by my private labour and travell collected many of the grounds of the common lawes, the better to establish and settle a certaine sense of law, which doth now too much waver in incertaintie, I conceived the nature of the subject, besides my particular obligation, was such, as I ought not to dedicate the same to any other than to your sacred Majestie; both because, though the collection bee mine, yet the lawes are yours; and because it is your Majesties reigne that hath beene as a goodly seasonable spring-weather to the advancing of all excelent arts of peace. And so concluding with a prayer answerable to the present argument, which is, That God will continue your Majesties reigne in a happy and renowned peace, and that he will guide both your policy and armes to purchase the continuance of it with suerty and honour, I most humbly crave pardon, and commend your Majesitie to the divine preservation.
Your sacred Majesties most humble and obedient subject and servant,
[I] Hold every man a debtor to his profession, from the which, as men of course doe seeke to receive countenance & profit, so ought they of duty to endeavour themselves by way of amends to bee a helpe and ornament thereunto; this is performed in some degree, by the honest and liberall practice of a profession, when men shall carry a respect not to descend into any course that is corrupt, and unworthy thereof, and preserve themselves free from the abuses wherewith the same profession is noted to bee infected; but much more is this performed, if a man bee able to visite and strengthen the roots and foundation of the science it selfe; thereby not onely gracing it in reputation and dignity, but also amplifying it in perfection and substance. Having therefore from
the beginning comne to the study of the lawes of this Realme, with a desire no lesse (if I could attaine unto it) that the same lawes should bee the better for my industry, than that my selfe should bee the better for the knowledge of them; I doe not finde, that by mine owne travell, without the helpe of authority, I can in any kinde conferre so profitable an addition unto that science, as by collecting the rules & grounds, dispersed throughout the body of the same lawes; for hereby no small light will bee given in new cases, wherein the authorities doe square and varie, to confirme the law, and to make it received one way, and in cases wherein the law is cleered by authoritie; yet neverthelesse to see more profoundly into the reason of such judgements and ruled cases, and thereby to make more use of them for the decision of other cases more doubtfull; so that the incertainty of law, which is the principall and most just challenge that is made to the lawes of our nation at this time, will, by this new strength laid to the foundation, be somewhat the more settle and corrected; Neither will the use hereof be only in deciding of doubts, and helping soundnesse of judgement, but further in gracing of argument, in correcting unprofitable subtilty, and reducing the same to a more found and substantiall sense of law, in reclaiming vulgar errors, and generally the amendment in some measure of the very nature and complection of the whole law, and ther-
fore the conclusions of reason of this kinde are worthily and aptly called by a great Civilian legum leges, lawes of lawes, for that many placita legum, that is, particular, and positive learnings of lawes doe easily decline from a good temper of justice, if they bee not rectified and governed by such rules.
Now for the manner of setting downe of them, I have in all points to the best of my understanding and fore-sight applied my selfe not to that which might seeme most for the ostentation of mine owne wit or knowledge, but to that which may yeeld most use and profit to the Students and professors of our lawes.
And therefore, whereas these rules are some of them ordinary and vulgar, that now serve but for grounds and plaine songs to the more shallow and impertinent sort of arguments: other of them are gathered and extracted out of the harmony and congruity of cases, and are such as the wisest and deepest sort of Lawyers have in judgement, and use, though they bee not able many times to expresse and ser them downe.
For the former sort, which a man that should rather write to raise an high opinion of himselfe, than to instruct others, would have omitted, as trite and within every mans compasse; yet neverthelesse I have not affected to neglect them, but have chosen out of them such as I thought good : I have reduced them to a true application, limi-
ting and defining their bounds, that they may not bee read upon at large, but restrained to a point of difference; for as both in the law and other sciences the handling of questions by Commonplace without aime or application is the weakest, so yet neverthelesse many common principles and generalities are not to bee contemned, if they bee well derived and deduced into particulars, and their limits and exclusions duely assigned: for there bee two contrary faults and extremities in the debating and sifting out of the law, which may bee best noted in two severall manner of arguments: Some argue upon generall grounds, and come not neere the point in question; others without laying any foundation of a ground or difference doe loosely put cases, which though they goe neere the point, yet being put so scattered, prove not, but rather serve to make the law appeare more doubtfull, than to make it more plaine.
Secondly, whereas some of these rules have a concurrence with the civill Romane law, and some others a diversity, and many times an opposition, such grounds which are common to our law and theirs I have not affected to disguise into other words than the Civilians use, to the end they might seem invented by me, & not borrowed or translated from them: No, but I tooke hold of it as matter of greater Authority and Majestie to see and consider the concordance be-
tweene the lawes penn'd, and as it were dicted verbatim by the same reason: on the other side, the diversities betweene the civill Romane rules of law and ours, happening either when there is such an indifferency of reason, so equally ballanced as the one law imbraceth one course, and the other the contrary, and both just after either is once positive and certaine, or where the lawes varie in regard of accomodating the law to the different considerations of estate, I have not omitted to set downe.
Thirdly, whereas I could have digested these rules into a certaine method or order, which I know would have beene more admired, as that which would have made every particular rule through coherence and relation unto other rules seeme more cunning and deepe, yet I have avoided so to doe, because this delivering of knowledge in distinct and disjoyned Aphorismes doth leave the wit of man more free to turne and tosse, and make use of that which is so delivered to more severall purposes and applications; for wee see that all the ancient wisdome and science was wont to bee delivered in that forme, as may bee seene by the parables of Solomon, and by the Aphorismes of Hippocrates, and the morall verses of Theognes and Phocilides, but chiefely the president of the Civill law, which hath taken the same course with their rules, did confirme mee in my opinion.
Fourthly, whereas I know verie well it would have beene more plausible and more currant, if the rules, with the expositions of them had beene set do une either in Latine or in English, that the harshnesse of the language might not have disgraced the matter, and that Civilians, States-men, Schollers, and other sensible men might not have beene barred from them; yet I have forsaken that grace and ornament of them, and onely taken this course: The rules themselves I have put in Latine, not purified further than the propertie of the termes of the law would permit; which language I chose as the briefest to contrive the rules compendiously, the aptest for memory, and of the greatest Authoritie and Majesty to bee avouched and alledged in argument: and for the expositions and distinctions, I have retained the peculiar language of our law, because it should not bee singular among the bookes of the same science, and because it is most familiar to the Students and professors thereof, and because that it is most significant to expresse conceits of law; and to conclude, it is a language wherein a man shall not bee inticed to hunt after words, but matter; and for the excluding of any other than professed Lawyers, it was better manners to exclude them by the strangenesse of the language, than by the obscuritie of the conceit, which is, as though it had beene written in no private and retired language, yet by those that are not Lawyers would for the
most part not have beene understood, or which is worse, mistaken.
Fiftly, whereas it might have beene more flourish and ostentation of reading, to have vouched the authorities, and sometimes to have enforced or noted upon them, yet I have abstained from that also; and the reason is, because I judged it a matter undue and preposterous to proove rules and maximes; wherein I had the example of MrLittleton and MrFitzherbert, whose writings are the institutions of the lawes of England, whereof the one forbeareth to vouch any authoritie altogether, the other never reciteth a booke, but when hee thinketh the case so weake of credit in it selfe, as it needs a surety; and these two I did far more esteeme than Mr Perckings or MrStamford that have done the contrary: well will it appeare to those that are learned in the lawes, that many of the cases are judged cases, either within the books or of fresh report, and most of them fortified by judged cases, and similitude of reason, though in some few cases I did intend expressely to weigh downe the authority by evidence of reason, and therein rather to correct the law than either to sooth a received error, or by unprofitable subtilty, which corrupteth the sense of law, to reconcile contrarieties; for these reasons I resolved not to derogate from the authority of the rules, by vouching of any of the authority of the cases, though in mine owne copy I had them quoted:
for although the meannesse of mine owne person may now at first extenuate the authority of this collection, and that every man is adventrous to controule yet surely according to Gamduells reason, if it bee of weight, time will settle and authorize it; if it bee light and weake, time will reproove it: So that, to conclude, you have here a worke without any glory of affected noveltie, or of method, or of language, or of quotations and
authorities,dedicated onely to use, and submitted onely to the censure of the learned, and chiefly of time.
Lastly, there is one point above all the rest, I accompt the most materiall for making these reasons indeed profitable and instructing, which is, that they bee not set downe alone like short darke Oracles which every man will bee content still to allow to bee true, but in the meane time they give little light or direction; but I have attended them, a matter not practised, no not in the Civill law to any purpose; and for want whereof, indeed the rules are but as proverbs and many times plaine fallacies; with a cleere and perspicuous exposition, breaking them into cases, and opening them with distinctions, and sometimes shewing the reasons above whereupon they depend, and the affinity they have with other rules: and though I have thus with as good discretion and fore-sight as I could, ordered this worke, and as I might say without all colours or showes
husbanded it best to profit, yet neverthelesse not wholly trusting to mine owne judgement, having collected 300. of them, I thought good before I brought them all into forme to publish some few, that by the taste of other mens opinions in this first, I might receive either approbation in mine owne coarse, or better advice for the altering of the other which remaine; for it is great reason that that which is intended to the profite of others, should be guided by the conceits of others.
1. In iure non remota causa, sed proxima spectatur. fol. l.
2. Non potest adduci exceptio eiusdem rei, cuius petitur dissolutio. 6.
3. Verba forti´┐Żs accipiuntur contra proferentem. 11. 4. Quod sub certa forma concessum vel reseruatum
est, non trahitur ad valorem vel compensatio-
5. Necessitas inducit priuilegium quoad iura pri-
6. Corporalis iniuria non recepit astimationem de futuro. 34.
7. Excusat aut extenuat delictum in capitalibus quod non operator idem in ciuilibus. 36.
8. AEstimatio pr´┐Żteriti delicti ex post facto nunquam crescit. 38.
9. Quod remedio destituitur ipsa re valet, si culpa absit. 40.
10. Verba generalia restringantur ad habilitatem rei vel person´┐Ż. 50
11. Iura sanguinis nullo iure Ciuili dirimi possunt. 52.
12. Receditur a placitis iuris potius quam iniuria,
ne delicta maneant impunita. 55.
13. Non accipi debent verba in demonstrationem
falsum, qua competunt in limitationem veram. 59. 14. Licet dispositio de interesse futuro sit inutilis,
tamen potest fieri declaratio pr´┐Żcedens qu´┐Ż sortia-
tur effectum interueniente nouo actu. 60.
15. In criminalibus sufficit generalis malitia inten-
tionis cum facto paris gradus. 65.
16. Mandata licita recipiunt strictam interpretationem, sedillicita latam & extensinam. 66.
17. De fide & officio Iudicis non recipitur qu´┐Żstio, sed de scientia siue sit error Iudicis siue facti. 68.
18. Persona coniuncta ´┐Żquiparatur interesse pro-
19. Non impedit clausula derogatoria qua minus
ab eadem potestate res dissoluantur ´┐Ż quibus con-
20. Actus inceptus cuius perfectio pendet ex volun-
tate partium reuocari potest, si autem pendet ex vo-
luntate terti´┐Ż person´┐Ż vel ex contingenti reuocari
non potest. 79.
21. Claustula vel dispositio inutilis per pr´┐Żsumptio-
nem remotam vel causam ex post facto non fulci-
22. Non videtur consensum retinuisse, si quis ex
pr´┐Żscripto minantis aliquid immutauit. 89. 23. Ambiguitas verborum latens verificatione sup-
pletur, nam quod ex facto oritur ambiguum veri-
ficatione facti tollitur. 90.
24. Licita bene miscentur, formula nisi iuris obstet. 91.
25. Pr´┐Żsentia corporis tollit errorem nominis, & ve-
ritas nominis tollit errorem demonstrationis. 96.
In jure non remota causa, sed proxima
IT were infinite for the law to judge the causes of causes, and their impulsions one of another; therefore it contenteth it selfe with the immediate cause, and judgeth of acts by that, without looking to any further degree.
As if an annuity be granted pro consilio impenso & impendendo, and the grantee commit treason, whereby he is imprisoned, so that the grantor cannot have accesse unto him for his counsell, yet neverthelesse the annuity is not determined by this
O. H. 8. Dys.
non feasance; yet it was the grantees act and default to commit the treason; whereby the imprisonment grew: But the law looketh not so farre, but excuseth him, because the not giving counsell was compulsary, and not voluntary, in regard of the imprisonment.
So if a Parson make a lease, and be deprived or resigne, the successors shall avoid the lease, and yet the cause of deprivation, and more strongly of a resignation, moved from the partie himselfe; but the law regardeth not that, because the admission of the new incombent is the act of the ordinary.
So if I be seised of an advouson in gross, and an usurpation bee had against mee, and at the next avoidance I usurpe arere, I shall be remitted, and yet the presentation, which is the act remoate, is mine owne act: but the admission of my Clerke, whereby the inheritance is reduced to mee, is the act of the Ordinary.
So if I covenant with I. S. a stranger in consideration of naturall love to my sonne, to stand seised to the use of the said I. S. to the intent he shall enfeoffe my sonne; by this no use ariseth to I. S. because the law doth respect that there is no immediate consideration betweene mee and I. S.
So if I be bound to enter into a statute before the Mayor of the Staple at such a day for the secu-
ritie of 100l. and the obligee before the day accept of mee a lease of an house in satisfaction, this is no plea in debt upon my obligation; and yet the end of that statute was but securitie of money: but because the entring into this statute it selfe, which is the immediate act whereunto I am bound, is a corporall act which lieth not in satisfaction, therefore the law taketh no consideration that the remoate intent was for money.
So if I make a feoffement in fee, upon condition that the feoffee shall enfeoffe over, and the feoffee be disseised, and a discent cast, and that the feoffee binde himselfe in a statute, which statute is discharged before the recoverie of the land, this is no breach of the condition, because the land was never liable to the statute, and the possibilitie that it should be liable upon the recoverie, the law doth not respect.
So if I enfeoffe two, upon condition to enfeoffe, and one of them take a wife, the condition is not broken, and yet there is a remoate possibilitie that the jointenant may die, and then the feme is intitled to dower.
So if a man purchase land in fee-simple, and die without issue, in the first degree the law respedeth dignitie of sexe and not proximity, and therefore the remote heire on the part of the father shall have it before the neere heire on the part
Litt. cap. 2. H. 4. 3. 26. H. 8. 2.
5. H. 7. 25.
M. 40. & 41. E1. Julius Winningtons case, ore report per le tresreuerend Judge, le Snr. Coke, lib. 2.
of the mother; but in any degree paramount the first the law respecteth not, and therfore the neere heire by the grand-mother on the part of the father shall have it before the remote heire of the grandfather on the part of the father.
This rule faileth in covenous acts, which though they bee conveighed through many degrees and reaches, yet the law taketh heed to the corrupt beginning, and counteth all as one intire act.
As if a feoffement bee made of lands held by Knights service to I. S. upon condition that within a certaine time hee shall enfeoffe I. D. which feoffement to I. D. shall bee to the use of the wife of the first feoffor for her jointure, &c. this feoffement is within the statute of 32. H. 8. nam dolus circuitu non purgatur.
In like manner, this rule holdeth not in criminall acts, except they have a full interruption, because when the intention is matter of substance, and that which the law doth principally behold, there the first motive will bee principally regarded, and not the last impulsion. As if I. S. of malice prepensed discharge a Pistoll at I. D. and misseth him, whereupon hee throwes downe his Pistoll, and flyes, and I. D. pursueth him to kill him, whereupon hee turneth and killeth I. D. with a Dagger; if the law should consider the last impulsive cause, it should say, that it was in his owne de-
fence; but the law is otherwise, for it is but a pursuance & execution of the first murtherous intent.
But if I. S. had fallen down his Dagger drawne, and I. D. had fallen by haste upon his Dagger, there I. D. had beene felo de se, and I. S. shall goe quit.
Also you may not confound the act, with the execution of the act; nor the entire act, with the last part or the consummation of the act.
For if a disseisor enter into religion, the immediate cause is from the party, though the discent bee cast in law; but the law doth but execute the act which the party procureth, and therefore the discent shall not binde, et sic ´┐Ż converso.
If a lease for yeares bee made rendring a rent, and the lessee make a feoffement of part, and the lessor enter, the immediate cause is from the law, in respect of the forfeiture, though the entrie bee the act of the party; but that is but the pursuance and putting in execution of the title which the law giveth, and therefore the rent or condition shall bee apportioned.
So in the binding of a right by a discent, you are to consider the whole time from the disseisin to the discent cast, and if at all times the person bee not priviledged, the discent bindes.
44. Ed. 3
Lit. cap. de disc.
24. H. 8. fo. 4, Dy.
And therefore if a feme covert bee disseised, and the Baron dieth and shee taketh a new husband, and then the discent is cast: or if a man that is not infra 4. Maria, bee disseised, and hee returne into England, and goe over sea againe, and then a discent is cast, this discent bindeth because of the interim when the persons might have entered, and the law respecteth not the state of the person at the last time of the discent cast, but a continuance from the verie disseised to the discent.
So if Baron and feme bee, and they joine in a feoffement of the wives land rendring a rent, and the Baron dye, and the feme take a new husband before any rent day and hee accepteth the rent, the feoffement is affirmed for ever.
Non potest adduci exceptio ejusdem rei, cujus petitur dissolutio.
IT were impertinent and contrary in it selfe, for the law to allow of a plea in barre of such matter as is to bee defeated by the same suite; for it is included, otherwise a man should never come to the end and effect of his suite, but bee cut off in the way.
And therefore if tenant intaile of a mannour, whereunto a villeine is regardant, discontinue and dye, and the right of the entaile discend to the vil-
leine himselfe, who brings a formedon, and the discontinued pleadeth villenage, this is no plea, because the devesting of the mannor, which is the intention of the suite, doth include this plea, because it determineth the villenage.
So if tenant in ancient demesne be disseised by the Lord, whereby the seigniory is suspended, and the disseisee bring his assize in the Court of the Lord, Francke fee is no plea, because the suite is brought to undoe the disseis, and so to revive the seigniory in ancient demesne.
So if a man be attainted and executed, and the heire bring a writ of error upon the attaindor, and the corruption of bloud by the same attaindor bee pleaded to interrupt his conveighing in the same writ of error, this is no plea, for then hee were without remedy ever to reverse the attaindor.
So if tenant intaile discontinue for life rendring a rent, and the issue brings a formedon, and the warranty of his ancestor with assets be pleaded against him, and the assets is laid to bee no other but his reversion with the rent, this is no plea, because the formedon which is brought to undoe this discontinuance doth inclusively undoe this new reversion in fee with the rent thereunto annexed.
But whether this rule may take place where the matter of plea is not to be avoided in the same suite but in an other suite, is doubtfull; and I rather take
9. H. 7. 24. 3.& 4. P. & M.
7. H. 4. 39. 7. H. 6. 44.
38. Ed. 3. 32.
the law to be that this rule doth extend to such cases, for other wise the partie were at a mischiefe, in respect; the exceptions and barres might bee pleaded crosse either of them in the contrary suite, and so the party altogether prevented and intercepted to come by his right.
So if a man bee attainted by two severall attaindors, and there is error in them both, there is no reason but that there should be a remedie open for the heire to reverse those attaindors being erroneous, as well if they bee twentie as one.
And therefore if in a writ of error brought by the heire of one of them, the attaindor should be a plea peremptorily, & so againe if in error brought of that other, the former should be a plea, these were to exclude him utterly of his right; and therefore it should be a good replication to say that hee hath a writ of error depending of that also, and so the Court shall proceed; but no judgement shall be given till both pleas bee discussed: and if either plea bee found without error, there shall bee no reversall either of the one or of the other: and if hee discontinue either writ, then shall it bee no longer a plea: and so of severall outlawries in a personall action.
And this seemeth to mee more reasonable, than that generally an outlawrie or an attaindor should bee no plea in a writ of error brought upon a di-
verse outlawrie or an attaindor, as 7. H. 4. and 7. H. 6. seeme to hold, for that is a remedy too large for the mischiefe; for there is no reason but if any of the outlawries or attaindors bee indeed without error but it should be a peremptory plea to the person in a writ of error as well as in any other action.
But if a man levy a fine Stconusaunce de droit come ceo que il ad de son done, & suffer a recoverie of the same lands, and there bee error in them both, hee cannot bring error first of the fine because by the recovery his title of error is discharged and released in law inclusiv´┐Ż, but hee must begin with the error upon the recoverie (which he may do because a fine executed barreth no titles that accrew de prisne temps after the fine levied) and so restore himselfe to his title of error upon the fine: but so it is not in the former case of the attaindor; for a writ of error to a former attaindor is not given away by a second, except it bee by expresse words of an act of Parliament, but onely it remaineth a plea to his person while hee liveth, and to the conveyance of his heire after his death.
But if a man levy a fine where he hath nothing in the land, which inureth by way of conclusion onely, and is executorie against all purchases and new titles which shall grow to the Conusor afterwards, and hee purchase the land, and suffer a recoverie to the Conusee, and in both fine and recove-
rie, there is error: This fine is Janus Bifrons, and will looke forward, and barre him of his writ of error brought of the recovery, and therefore it will come to the reason of the first case of the attaindor that hee must reply that hee hath a writ also depending of the same fine, and so demand judgement.
To returne to our first purpose, like law is it if tenant intaile of two acres make two severall discontinuances to severall persons for life rendring a rent, and bringeth a formedon of both, and in the formedon brought of white acre the reversion and rent reserved upon blacke acre is pleaded, and so contrary. I take it to bee a good replication that he hath a formedon also upon that depending whereunto the tenant hath pleaded the discent of the
reversion of white acre, and so neither shall bee a barre; and yet there is no doubt but if in a formedon the warranty of tenant intaile with assets bee pleaded, it is no replication for the issue to say that a Precipe dependeth brought by I. S. to evict the assets.
But the former case standeth upon the particular reason before mentioned.
Verta fortius accipiuntur contra
This rule that a mans deedes and his words shall be taken strongliest against himselfe, though it bee one of the most common grounds of the law, it is notwithstanding a rule drawn out of the depth of reason; for first it is a Schoole-Master of wisdome & diligence in making men watchfull in their owne businesse, next it is author of much quiet and certainty, and that in two sorts; first, because it favoureth acts and conveyances executed, taking them still beneficially for the grantees and possessors; and secondly, because it makes an end of many questions and doubts about construction of words: for if the labour were onely to picke out the intention of the parties, every Judge would have a severall sense, whereas this rule doth give them a sway to take the law more certainely one way.
But this rule, as all other which are verie generall, is but a sound in the ayre, and commeth in sometimes to helpe and make up other reasons without any great instruction or direction, except it be duely concerned in point of difference, where it taketh place, and where not; and first we will examine it ingrants, & then in pleadings.
The force of this rule is in three things, in am-
biguity of words, in implication of matter, and deducing or qualifying the exposition of such grants as were against the law, if they were taken according to their words.
And therefore if I. S. submit himselfe to arbitrament of all actions and suites betweene him and I. D. and I. N. it rests ambiguous whether the submission shall bee intended collective of joint actions onely, or distributive of severall actions also; but because the words shall be taken strongliest against I. S. that speakes them, it shall bee understood of both: for if I. S. had submitted himselfe to arbitrament of all actions and suites which hee hath now depending, except it bee such as are betweene him and I. D. and I. N. now it shall bee understood collective onely of joint actions, because in the other case large construction was hardest against him that speakes, and in this case strict construction is hardest.
So if I graunt ten pounds rent to Baron and feme, and if the Baron dye that the feme shall have three pounds rent, because these words rest ambiguous whether I intend three pounds by way of encrease or three pounds by way of restraint and abatement of the former rent of ten pounds, it shall bee taken strongliest against mee that am the grauntor, that it is 3l. addition to the ten; but if I had let land to Baron and feme for three lives, reserving 10l. per annum, and if the
Baron dye reserving three pounds, this shall bee taken contrary to the former case, to abbridge my rent onely to three pounds.
So if I demise omnes boscos meos in villa de dale for years, this passeth the soil, but if I demise all my lands in dale exceptis boscis, this extendeth to the trees onely and not to the soile.
So if I sowe my lands with come, and let it for yeares, the corne passeth to my lessee, if I except it not. but if I make a lease for life to I. S. upon condition that upon request hee shall make mee a lease for yeares, and I. S. soweth the ground, and then I make request, I. S. may well make me a lease excepting his corne, and not breake the condition.
So if I have free warren in mine owne hand, and let my land for life not mentioning the warren, yet the leasee by implication shall have the warren discharged and extract during his lease: but if I let the land una cum liber a warrenna, excepting white acre, there the warren is not by implication reserved unto mee either to bee injoyed or extinguished, but the leasee shall have warren against mee in white acre.
So if I. S. hold of mee by fealty and rent only, yet the fealty by implication shall passe, be-
2. R. 3. 18.
21. H. 7. 29.
8. Ass. p. 10.
14. H. 8. 28. H. 8. Dr 19.
8. H. 7. 32. H. 6.
29. Ass. pl. 10.
cause my grant shall be taken strongly as of a rent service and not of a rent secke.
Otherwise had it been if the seigniory had bin by homage fealty and rent, because of the dignity of the service which could not have passed by intendment by the graunt of the rent, but if I be seised of the mannor of dale in fee whereof I. S. holds by fealty and rent, and I graunt the mannor excepting the rent, the fealtie shall passe to the grauntee, and I. S. shall have but a rent secke.
So in graunts against the law, if I give land to I. S. and his heires males, this is a good fee-simple; which is a larger estate than the words seeme to intend and the word (males) is voide: But if I make a gift entaile reserving a rent to me and the heires of my body, the words (of my body) are not voide, and to leave it a rent in feesimple; but the words (heires) and all are voide, and leanes it but a rent for life, except that you will say it is but a limitation to any my heire in fee-simple which shall bee heire of my body, for it cannot bee a rent entaile by reservation.
But if I give land with my daughter in francke marriage, the remaindor to I. S. and his heires, this graunt cannot bee good in all the parts, according to the words, for it is incident to the nature of a gift in francke marriage that the donee hold it of the donor, and therefore my deed shall
bee taken so strongly against my selfe* that rather than the remainder shall be voide the franck marriage though it bee first placed in the deede shall bee voide as a francke marriage.
But if I give land in francke marriage reserving to mee and my heires ten pounds rent, now the franke marriage stands good and the reservation is voide, because it is a limitation of a benefit to my selfe and not to a stranger.
So if I let white acre, blacke acre, and greene acre to I. S. excepting white acre, his exception is voide, because it is repugnant, but if I let the three acres, aforesaid, rendring twenty shillings rent, viz. for white acre ten shillings, and for black acre ten shillings, I shall not destraine at all in greene acre, but that shall bee discharged of my rent.
So if I grant a rent to I. S. and his heires out of my mannour of dale & oblige manerium & omnia bona & catella mea super manerium pr´┐Żdictum existentia ad distringendum per Baliuum Domini Regis: this limitation of the distresse to the Kings Baliffe is voide, and it is good to give a power of distresse to I. S. the grauntee and his Baliffes.
But if I give land intaile tenend' de capitalibus Dominis per reditum viginti solidorum & fidelitatem; this limitation of tenure to the Lord is
44. Ed. 3.19.
26. ass. pl. 66.
* Qu´┐Żre car le ley seble dee le contrary, entant que in un grant quant lun part del fait ne poit estoier oue lauter le darr: serra void, auterment in un devise et accordant suit lopin:de Sur Anderson et Owen Just: contra Walmesley Just: P. 40. Eliz. in le case de Coun[-]tesse de Warwicke et Sur Barkley in com. banco.
4. H. 6. 22. 26. ass. pl. 66.
46. Ed. 3.18.
2. Ed. 4. 5.
voide, and it shall not be good, as in the other case, to make a reservation of twenty shillings good unto my selfe, but it shall bee utterly voide as if no reservation at all had beene made; and if the truth bee that I that am the donor hold of the Lord paramount by ten shillings onely, then there shall bee ten shillings onely reserved upon the gift entaile as for ovelty.
So if I give land to I. S. and the heires of his
body, and for default of such issue quod tenementum & pr´┐Żdictum revertatur ad I. N. yet these words of reservation will carry a remainder to a stranger. But if I let white acre to I. S. excepting ten shillings rent, these words of exception to mine owne benefit shall never inure to words of reservation.
But now it is to bee noted, that this rule is the last to bee resorted to, and is never to bee relied upon but whereall other rules of exposition of words faile; and if any other come in place, this giveth place. And that is a point worthy to bee observed generally in the rules of the law, that when they encounter and crosse one anothe in any case, it bee understood which the law holdeth worthier, and to bee preferred; and it is in this particular very notable to consider, that this being a rule of some strictnesse and rigour, doth not as it were it's office, but in absence of other rules which are of more equity and humanity;
which rules you shall afterwards finde set downe with their expositions and limitations.
But now to give a taste of them to this present purpose, it is a rule that generall words shall
never bee stretched too farre in intendment, which the Civilians utter thus. Verba generalia restringuntur ad habilitatem person´┐Ż, vel ad aptitudinem rei.
Therefore if a man grant to another Common intra metas & bundas vill´┐Ż de dale, and part of the ville is his severall, and part his waste and Common; the grantee shall not have Common in the Severall, and yet that is the strongest exposition against the grantor.
So it is a rule, verba ita sunt intelligenda, ut res magis valeat quam pereat: and therefore if I give land to I. S. and his heires reddend' quinque libras annatim to I. D. and his heires, this implies a condition to mee that am the grantor; yet it were a stronger exposition against mee, to say the limitation should bee voide, and the feoffement absolute.
So it is a rule, that the law will not intend a wrong, which the Civilians utter thus: Ea est accipenda interpretatio, qua vitio caret. And therefore if the executor of I. S. grant omnia bona & catella sua, the goods which they have as execu-
21. Ed. 3. 49. 31. &. 32. H. 8. Dyer 46. Plow. fo. 37.
35. H. 6. 34.
14. Ass. pl. 23.
Lit. cap. C^^^ dic.
10. Ed. 4. 80
3. H. 6. 20.
tors will not passe, because non constat whether it may bee a devastation, and so a wrong; and yet against the trespasser that taketh them out of their hand, they shall declare quod bona sua cepit.
So it is a rule, that words are so to bee understood, that they worke somewhat, and bee not idle and frivolous: verba aliquid operari debent, verba cum effectu sunt accipienda. And therefore if I buy and sell you the fourth part of my mannor of dale, and say not in how many parts to be divided, this shall bee construed foure parts of five, and not of 6. nor 7. &c. because that it is the strongest against mee; but on the other side, it shall not bee intended foure parts of foure parts, or the whole or foure quarters; and yet that were strongest of all,but then the words were idle and of none effect.
So it is a rule, Deuinatio non interpretatio est, qu´┐Ż omnino recedit ´┐Ż litera: and therefore if I have a fee farme rent issuing out of white acre often shillings, and I reciting the same reservation
doe grant to I. S. the rent of five shillings percipiend' de reddit' predict' & de omnibus terris & tenementis meis in dale with a clause of distresse, although there bee atturnement yet nothing passeth out of my former rent, and yet that were strongest against mee to have it a double rent or grant of part of that rent with an enlargement of a distresse in the other land, but for that it is a-
gainst the words, because copulatio verborum indicat acceptionem in eodem sensu, and the word de (anglice out of) may be taken in two senses, that is, either as a greater summe out of a lesse, or as a charge out of land or other principall interest; and that the coupling of it with lands & tenements[-] viz. I reciting that I am seised of such a rent of ten shillings, doe grant five shillings percipiend' de eodem reddit' it is good enough without atturnment, because percipiend de &c. may well be taken for parcella de &c. without violence to the words, but if it had beene de reddit' predict' although I. S. bee the person that payeth mee the foresaid rent of ten shillings, yet it is voide, and so it is of all other rules of exposition of grants when they meet in opposition with this rule they are preferred.
Now to examine this rule in pleadings as wee have done in grants, you shall finde that in all imperfections of pleadings whether it bee in ambiguity of words and double intendments, or want of certainty and averments, the plea shall be strictly and strongly against him that pleads.
For ambiguity of words, if in a writ of entrie upon disseisin, the tenant pleads jointenancy with I. S. of the gift and feoffement of I. D. judgement[-] de briefe the demandant saith that long time before I. D. any thing had the demandant himselfe was seised in fee quousque predict. I. D.
super possessionem eius intrauit, and made a joint feoffement, whereupon he the demandant reentred and so was seised untill by the defendant alone hee was disseised; this is no plea, because the word intrauit may bee understood either of a lawfull entrie, or of a tortious, and the hardest against him shall bee taken, which is, that it was a lawfull entrie, therefore he should have alledged precisely that I. D. disseisiuit.
So upon ambiguities that grow by reference, If an action of debt bee brought against I. N. and I. P. Sheriffes of London upon an escape, and the plaintiffe doth declare upon an execution by force of a recoverie in the prison of Ludgate sub custodia I. S. & I. D. then Sheriffes in 1. K. H. 8. and that bee so continued sub custodia I. B. & I. G. in 2. King H. 8. and so continued sub custodia I. N. & I. L. in 3. K. H. 8. and then was suffered to escape: I. N. & I. L. plead that before the escape supposed at such a day anno superius in narratione specificato the said I. D. and I. S. ad tunc vicecomites suffered him to escape, this is no good plea, because there bee three yeares specified in the declaration, and it shall be hardest taken that it was 1. or 3. H. 8. when they were out of office, and yet it is neerely induced by the ad tunc vicecomites which should leave the intendment to be of that yeare in which the declaration supposeth that they were Sheriffes, but that sufficeth not, but the yeare must be alledged
in fact, for it may bee mislaid by the plaintiffe, and therefore the defendants meaning to discharge themselves by a former escape, which was not in their time, must alledge it precisely.
For incertainty of intendment, If a warranty collaterall be pleaded in barre, and the plaintiffe by replication to avoide the warranty, saith, that hee entred upon the possession of the defendant, non constat whether this entrie was in the life of the ancestor or after the warranty attached: and therefore it shall bee taken in hardest sense, that it was after the warranty descended, if it bee not otherwise averred.
For impropriety of words, If a man pleade that his ancestor died by protestation seised, and that I. S. abated &c. this is no plea, for there cannot bee an abatement except there bee a dying seised alledged in fact, and an abatement shal not be improperly taken for disseisin in pleading ear parols sont pleas.
For repugnancie, if a man in avowrie declare that he was seised in his demesne as of fee of white acre, and being so seised did demise the said white acre to I. S. habendum the moitie for 21. yeares from the date of the deed, the other moity from the surrender, expiration, or determination of the estate of I. D. qui tenet pr´┐Żdict' medietatem ad terminum vit´┐Ż su´┐Ż reddend' xl. s.
3. Ed. 6. Dy. 66.
26. H. 8.
38. H. 6. 18. 39. H. 6. 5.
rent, this declaration is insufficient, because the seisin that he hath alledged in himselfe in his demeine as of fee in the whole, and the state for life or a moitie are repugnant, and it shall not bee cured by taking the last which is expressed to controll the former, which is but generall and formall, but the plea is naught, and yet the matter in law had bin good to have intituled him to have distrained for the whole rent.
But the same restraint followes this rule in pleading that was before noted in grants: for if the case bee such as falleth within another rule of pleading this rule may not be urged.
And therefore it is a rule that a barre is good to a common intent, though not to everie intent. As, if a debt be brought against five executors, and three of them make default, and two appeare and plead in barre a recoverie had against them two of 300l, and nothing in their hands over and above that summe. If this barre should be taken strongliest against them, it should be intended that they might have abated the first suite, because the other three were not named, and so the recovery not duely had against them; but because of this other rule the barre is good: for that the more common intent will say that they two did onely administer, and so the action well considered, rather than to imagine that they would have lost the benefit and advantage of abating the writ.
So there is another rule, that in pleading a man shall not disclose that which is against himselfe: and therefore if it be matter that is to be set forth on the other side, then the plea shall not be taken in the hardest sense but in the most beneficall, and to bee left unto the contrarie partie to alleage.
And therefore if a man bee bound in an obligation that if the feme of the obligee doe decease before the feast of Saint Jonn the Baptist which shall bee in the yeare of our Lord God 1598. without isssue of her bodie by her husband lawfully begotten then living, that then the bond shall bee void, and in debt brought upon this obligation, the defendants plead that the feme died before the said feast without issue of her bodie then living: if this plea should bee taken strongliest against the defendant, then should it be taken that the feme had issue at the time of her death, but this issue died before the feast; but that shall not bee so understood because it makes against the defendant, and it is to bee brought in of the plaintiffes side, and that without traverse.
So if in a detinue brought by a feme against the executors of her husband for her reasonable part of the goods of her husband, and her demand is of a moitie, and she declares upon the custome of the Realme by which the feme is to
9. Ed. 4.
4. Ed. 6. Plow.
28. H. 8. Dys. fol. 17.
have a moitie, if no issue bee had betweene her and her husband, and the third part if there bee issue had, and declareth that her husband dieth without issue had betweene them; if this count should bee hardliest construed against the partie, it should be intended that her husband had issue by another wife, though not by her, in which case the feme is but to have the third part likewise; but that shall not be so intended because it is matter of reply to be shewed of the other side.
And so it is of all other rules of pleadings, these being sufficient not onely for the exact expounding of these other rules, but obiter to shew how this rule which we handle is put by when it meetes with anie other rule.
As for Acts of Pa[r]liament, Virdicts, Judgements, &c. which are not words of parties: in them this rule hath no place at all, neither in devises and wils upon severall reasons; but more especially it is to bee noted, that in evidence it hath no place, which yet seemes to have some affinitie with pleadings, specially when demurrer is joined upon the evidence.
And therfore if land be given by will by H. C. to his sonne I. C. and the heires males of his bodie begotten; the remainder to F.C. and the heires males of his bodie begotten; the remainder to the heires males of the bodie of the devi-
sor, the remainder to his daughter S. C. and the heires of her bodie, with a clause of perpetuitie, and the question comes upon the point of forfeiture in an assize taken by default, and
evidence is given, and demurrer upon evidence, and In the evidence[-] given to maintain the entry of the daughter upon a forfeiture, it is not set forth not averred that the devisor had no other issue male, yet the evidence is good enough,and it shall bee so intended; and the reason hereof cannot bee, because a Jury may take knowledge of matters not within the evidence,and the Court contrariwise cannot take knowledge of any matters not within the pleas: for it is cleere, that if the evidence
had been altogether remote, and not proving the issue, there, although the Jury might find it, yet a demurrer might well bee taken upon the evidence.
But if I take the reason of difference to be betweene pleadings, which are but openings of the case, and evidences which are the proofes of an issue, for pleadings being but to open the veritie of the matter in fact indifferently on both parts, hath no scope and conclusion to direct the construction and intendment of them, and therefore must be certaine, but in evidence and proofs the issue which is the state of the question and conclusion shall encline and apply all the proofes as tending to that conclusion.
Another reason is, that pleadings must be certain, because the adverse party may know wherto to answer, or else he were at a mischief, which mischiefe is remedied by demurrer; but in
evidence if it be short, impertinent or incertaine, the adverse party is at no mischiefe, because it is to be thought that the Jury will passe against him;
yet neverthelesse the Jury is not compellable to supply the defect of evidence out of their owne knowledge, though it bee in their libertie so to doe, therefore the law alloweth a demurrer upon evidence also.
Quod sub certa forma concessum vel reseruatum est non trabitur ad valorem vel compensationem.
The Law permitteth every man to part with his owne interest, and to qualifie his owne graunt as it pleaseth himselfe, and therefore doth not admit any allowance or recompence if the thing be not taken as it is graunted.
So in all profiles a prender, if I graunt Common for ten beasts, or ten loads of wood out of my Copps, or ten loads of hay out of my Meads to be taken for three yeares, hee shall not have Common for thirty beasts, or thirty loads of wood or hay the third years if hee forbeare for
the space of two yeares; here the time is certain and precise.
So if the place be limitted, or if I graunt Estovers to bee spent in such a house, or stone towards the reparation of such a Castle, although the grauntee doe burne of his fuell and repaire of his owne charge, yet hee can demand no allowance for that he tooke it not.
So if the kinde be specified, as if I let my Park reserving to myselfe all the Deere and sufficient pasture for them, if I do decay the game whereby there is no Deere, I shall not have quantitie of pasture answerable to the feed of so many Deere as were upon the ground when I let it, but am without any remedy except I replenish the ground againe with Deere.
But it may be thought that the reason of these cases is the default and lachess of the grauntor, which is not so.
For put the case that the house where the Estovers should bee spent bee overthrown by the act of God, as by tempest, or burnt by the enemies of the King, yet there is no recompence to be made.
And in the strongest case where it is in default of the grauntor, yet he shall make void his owne
37. H. 6. 10
graunt rather than the certain forme of it should be wrested to an equitie or valuation.
As if I graunt Common ubicunque averia mea ierint, the Commoner cannot otherwise entitle himselfe, except that hee averre that in such grounds my beasts have gone and fed, and if I never put in any but occupie my grounds otherwise, hee is without remedy; but it I put in, and after by poverty or otherwise I desist, yet the Commoner may continue; contrariwise, if the words of the graunt had beene quandocunque averia mea ierint, for there it depends continually upon the putting in of my beasts, or at least the generall seasons when I put them in, not upon every houre or moment.
But if I graunt tertiam aduocationem to I. S. if hee neglect to take his turne ea vice, hee is without remedy: But if my wife bee before intituled to dower, and I dye, then my heire shall have two presentments, and my wife the third, and my grauntee shall have the fourth; and it doth not impugne this rule at all, because the graunt shall receive that construction at the first that it was intended such an avoidance as may be taken and enjoyed: as if I graunt proximam aduocationem to I. D. and then graunt proximam advocationem to I. S. this shall be intended the next to the next, which I pay lawfully graunt or dispose. Qu´┐Żre.
But if I graunt proximam aduocatinem to I. S. and I. N. is Incumbent, and I graunt by precise words illam aduocationem quam post mortem, resignationem, translationem, vel depriuationem I. N. immediate fore contigerit, now the grant is meerely voide, because I had graunted that before, and it cannot bee taken against the words.
Necessitas inducit priuilegium quoad iura priuata.
The law chargeth no man with default where the act is compulsorie, and not voluntary, and where there is not a consent and election; and therefore if either there bee an impossibility for a man to doe otherwise, or so great a perturbation of the judgement and reason as in presumption of law mans nature cannot overcome, such necessity carrieth a priviledge in it selfe.
Necessity is of three sorts, necessity of conservarion of life, necessity of obedience, and necessity of the act of God or of a stranger.
First of conservation of life, If a man steale viands to satisfie his present hunger, this is no felony nor larceney.
So if divers bee in danger of drowning by the casting away of some boate or barge, and one of
29. H. 8. Dy. 38.
4. Ed. 6. Cond
them get to some plancke, or on the boates side to keepe himselfe above water, and another to save his life thrust him from it, whereby hee is drowned; this is neither se defendendo nor by misadventure, but justifiable.
So if divers felons bee in a Jaile, and the Jaile by casualty is set on fire, whereby the prisoners get forth, this no escape, nor breaking of prison.
So upon the Statute, that every Merchant that setteth his merchandize on land without Satisfying the Customer or agreeing for it (which agreement is construed to bee incertainty) shall forfeit his merchandize, and it is so that by tempest a great quantity of the merchandize is cast over board, whereby the Merchant agrees with the Customer by estimation, which falleth out short of the truth, yet the over-quantity is not forfeited; where note that necessity dispenseth with the direct letter of a Statute law.
So if a man have right to land, and doe not make his entrie for terror of force, the law allowes him a continuall claime, which shall bee as beneficiall unto him as any entry; so shall a man save his default of appearance by cretein de cau, and avoide his debt by duresse, whereof you shall finde proper cases elsewhere.
The second necessity is of obedience, and ther-
fore where Baron and Feme commit a felony, the Feme can neither be principall nor accessary, because the law intends her to have no will, in regard of the subjection and obedience shee owes to her husband.
So one reason amongst others why Embassadors are used to bee excused of practices against the State where they reside, except it be in point of conspiracie, which is against the law of Nations, and society, is, because non constat whether they have it in mandatis, and then they are excused by necessity of obedience.
So if a warrant or precept come from the King to sell wood upon the ground whereof I am tenant for life or for yeares, I am excused in wast.
The third necessitie is of the act of God, or of a stranger, as if I bee particular tenant for yeares of a house, and it be overthrowne by grand tempest, or thunder and lightning, or by sudden flouds, or by invasion of enemies; or if I have belonging unto it some Cottage which hath beene infected, whereby I can procure none to inhabite them, no workeman to repaire them, and so they fall down, In all these cases I am excused in wast: but of this last learning when and how the act of God and strangers doe excuse, there bee other particular rules.
Cond. 13. 6. per Brook. 15. H. 7. 2. per Keble.
14. H. 7. 29. per Reade.
4. Ed. 6. pl.
4. Ed. 6. 20. con-
Lit. pl. 4. 19. 12. H. 4. 20. 14. H. 4. 30. B. 38. H. 6.11.
28. H. 6. 8. 39. H. 6. 50.
Standf. 16. 2. Ed. 3. 160. cor Fitzh.
B. 42. Ed. 3. 6.
B. Wast. 31.
42. Ed. 3. 6.
19. Ed. 3. per
30. 32. Ed. 3.
44. Ed. 3. 31.
But then it is to be noted, that necessitie priviledgeth onely quoad iura priuata, for in all cases if the act that should deliver a man out of the necessitie be against the Common-wealth, necessity excuseth not: for priuilegium non valet contra Rempublicam; and as another saith, Necessitas publica maior est quam priuata: for death is the last
and farthest point of particular necessitie, and the law imposeth it upon everie subject, that he preferre the urgent service of his Prince and Countrey before the safety of his life; As if in danger of ternpest those that are in the ship throw over other mens goods, they are not answerable: but If a man bee commanded to bring Ordnance or Munition to relieve any of the Kings towns that are distressed, then hee cannot for any danger of tempest justifie the throwing of them overboard, for there it holdeth which was spoken by the Romane when he alledged the same necessitie of weather to hold him from imbarquing, Necesse est ut eam non ut viuam. So in the case put before of husband and wife, if they joyne in committing treason, the necessity of obedience doth not excuse the offence as it doth in felony, because it is against the Common-wealth.
So if a fire be taken in a street, I may justifie the pulling down of the wall or house of another man to save the row from the spreading of the fire; but if I be assailed in my house in a Citie or
Towne, and distressed, and to save my life I set fire on mine owne house, which spreadeth and taketh hold upon other houses adjoyning, this is not justifiable, but I am subject to their action
upon the case, because I cannot rescue mine owne life by doing any thing which is against the Common-wealth: But if it had beene but a private trespasse, as the going over anothers ground, or the breaking of his inclosure when I am pursued for the safegard of my lift, it is justifiable.
This rule admitteth an exception when the Law doth intend some fault or wrong in the partie that hath brought himselfe into the necessitie: so that is necessitas culpabilis. This I take to bee the chiefe reason, why serpsum defendendo is not matter of Justification, because the law intends it hath a commencement upon an unlawfull cause, because quarrels are not presumed to grow without some wrongs either in words or deedes on either part, and the law that thinketh it a thing hardly triable in whose default the quarrell beganne, supposeth the partie that kils another in his owne defence not to bee without malice;
and therefore as it doth not touch him in the highest degree, so it putteth him to sue out his pardon of course, and punisheth him by forfeiture of goods: for where there cannot be anie malice nor wrong presumed, as where a man assailes mee to robbe mee, and I kill him that assaileth me; or if a woman kill him that assaileth
13. H. 8. 16. per
Shelley. 12. H. 8. 10.
per Brooke 12. Ass.. pl. 56.
6 Ed. 4. 7. per
4. H.7. 50.
her to ravish her it is justificable without anie pardon.
So the common case proveth this exception that is, if a mad man commit a felonie hee shall not lose his life for it, because his infirmity came by the Act of God; but if a drunken man commit a felonie, he shall not be excused because his imperfection came by his owne default; for the reason and losse of deprivation of will and election by necessitie and by infirmitie is all one, for the lacke of (arbitrum solutum) is the matter: and therefore as infirmitas culpabilis excuseth not, no more doth necessitas culpabilis
Corporalis iniuria non recipit ´┐Żstimationem de futuro.
The law in many cases that concerne lands or goods doth deprive a man of his present remedie, and turneth him over to a further Cirquit of remedie, rather than to suffer an inconvenience: but if it bee question of personall paine, the law will not compell him to sustaine it and expect remedie, because it holdeth no damage a sufficient recompence for a wrong which is corporall.
As if the Sheriffe make a false returne that I
am summoned whereby I lose my land, yet because of the inconvenience of drawing all things to incertaintie and delay, if the Sheriffes returne should not be credited, I am excluded of my averment against it, and am put to mine action of deceit against the Sheriffe and Summoners; but if the Sheriffe upon a Cap. returne a Cepi corpus & quod est languidus in prisona, there I may come in and falsifie the return of the Sheriffe to save my imprisonment.
So if a man menace me in my goods, and that he will burne certaine evidences of my land which he hath in his hand, if I will not make unto him a bond, yet if I enter into bond by this terror, I cannot avoid it by plea, because the law holdeth it an inco[n]venience to avoid a speciallitie by such matter of averrement, and therefore I am put to mine action against such a menacer: but if hee restraine my person, or threaten mee with a battery or with the burning of my house, which is a safetie and protection to my person, or with burning an instrument of manumission, which is an evidence of my enfranchisement; if upon such menace or duressse I make a deede, I shall avoid it by plea.
So if a trespasser drive away my beasts over anothers ground, I pursue them to rescue them, yet am I a trespasser to the stranger upon whose ground I came; but if a man assaile my person,
12. H. 7. 13.
3. Ed. 4. 80.
3 H. 8. 3.
7. H. 4. 28.
13. H. 3. 33. 21. H. 7. 28.
and I fly over anothers ground, now am I no trespasser.
This ground some of the Canonists doe aptly inferre out of Christs sacred mouth; Amen est corpus supra vestimentum, 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, and this was the reason of the ancient lex talionis, oculus pro oculo, dens pro dente, so that by that law corporalis iniuria de pr´┐Żterito non recepit ´┐Żst mationem: But our law when the injury is already executed and inflicted, thinketh it best satisfaction to the party grieved to relieve him in damage, and to give him rather
profit than revenge; but it will never force a man to tolerate a corporall hurt, and to depend upon that inferiour kind of satisfaction, ut in damagijs.
Excusat aut extenuat delictum in capitalibus, quod non operatur idem in ciuilibus.
In Capitall causes in fauorem vit´┐Ż, the law will not punish in so high a degree, except the malice of the will and intention appeare; but in Civill trespasses and injuries that are of an inferiour nature, the law doth rather consider the damage of the party wronged, than the malice of him that was the wrong doer; and therefore
The law makes a difference betweene killing a man upon malice fore thought, and upon present heate: But if I give a man slanderous words, whereby I damnifie him in his name and credit, 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 bee killed by misadventure, as by an arrow at Buts, this hath a pardon of course: but if a man bee hurt or maimed onely, an action of trespasse lieth, though it be done against the parties minde and will, and he shall bee punished in the law, as deepely as if hee had done it of malice.
So if a Surgeon authorized to practise, doe through negligence in his cure cause the party to dye, the Surgeon shall not bee brought in question of his life; and yet if hee doe onely hurt the wound whereby the cure is cast backe, and death ensues not, hee is subject to an action upon the case for his misfeisance.
So if Baron and Feme bee, and they commit felony together, the Feme is neither principall nor accessary, in regard of her obedience to the will of her husband; but if Baron and Feme joine in committing a trespasse upon land or otherwise, the action may bee brought against them both.
6. Ed. q. 7.
So if an infant within yeares of discretion, or a mad- man kill another, hee shall not bee impeached thereof; but if they put out a mans eye, or doe him like corporall hurt, hee shall be punished in trespasse.
So in felonies the law admitteth the difference of principall and accessarie, and if the principall dye, or bee pardoned, the proceeding against the accessary faileth; but in a trespasse, if one comnand his man to beare you, and the servant after the battery dye, yet your action of trespasse stands good against the Master.
´┐Żstimatio pr´┐Żteriti delicti ex postremo facto
The law construeth neither penall lawes, nor penall facts by intendments, but considereth the offence in degree, as it standeth at the time when it is committed; so as if any circumstance or matter bee subsequent, which laide together with the beginning should seeme to draw to it a higher nature, yet the law doth not extend or amplifie the offence.
Therefore if a man bee wounded, and the percussor is voluntarily let go at large by the Jailor, and after death ensueth of the hurt, yet this is no felonious escape in the Jailor.
So if the Villein strike the heire apparant of the Lord, and the Lord dieth before, and the person hurt who succeedeth to be Lord to the Villeine dieth after, yet this is no pettie treason.
So if a man compasse and imagineth the death of one that after commeth to bee King of the Land, not beeing any person mentioned within the Statute of 25. Ed. 3. this imagination precedent is not high treason.
So if a man use slanderous words of a person upon whom some dignitie after descends that maketh him a Peere of the Realme, yet he shall have but a simple action of the case, and not in the nature of a scandalum Magnatum upon the statute.
So if John Stile steale 6d. from mee in monie, and the King by his proclamation doth raise monies, that the weight of silver in the piece now of 6d. should goe for 12d. yet this shall remaine pettie larcenie and no felonie; and yet in all civill reckonings the alteration shall take place: as if I contract with a labourer to doe some worke for 12d. and the inhaunsing of monie commeth before I pay him, I shall satisfie my contract with a sixepenny piece so raised.
So if a man deliver goods to one to keepe, and after retain the same person into his service,
25. H. 6. 11.
17. H. 4. 19.
11. H. 4. 12.
who afterwards goeth away with his goods, this is no felony by the statute of 21. H. 8. because he was no servant at that time.
In like manner, if I deliver goods to the servant
of I. S. to keepe, and after die and make I. S. my executor, and before any new commandement of I. S. to his servant for the custodie of the same goods, his servant goeth away with them; this is also out of the same statute. quod nota.
But note that it is said pr´┐Żteriti delicti; for any accessory before the fact is subject to all the contingencies pregnant of the fact if they bee pursuances of the same fact: As if a man command or counsell one to robbe a man, or beate him grievously and murther ensue, in either case he is accessarie to the murther; quia in crimnalibus pr´┐Żstantur accidentia.
Quod remedio destituitur ipsa re valet si
The benignitie of the law is such, as when to preserve the principles and grounds of law it depriveth a man of his remedie without his owne fault, it will rather put him in a better degree and condition than in a worse; for if it disable him to pursue his action or to make his
claime, sometimes it will give him the thing it selfe by operation of law without any act of his owne, sometimes it will give him a more beneficiall remedie.
And therefore if the heire of the disseisor which is in by discent make a lease for life, the remainder for life unto the disseisee, and the lessee for life die, now the franketenement is cast upon the disseisee by act in law, and thereby hee is disabled to bring his Precipe to recover his right, whereupon the law judgeth him in his ancient right as strongly as if it had beene recovered
and executed by action, which operation of law is by an ancient terme & word of law called a remitter; but if there may bee assigned any default or laches in him, either in accepting the free hold, or in accepting the interest that drawes the free hold, then the law denieth him anie such benefit.
And therfore if the heire of the disseisor make a lease for yeares the remainder in fee to the disseisee, the disseisee is not remitted, and yet the remainder is in him without his own knowledge or assent; but because the free hold is not cast upon him by act in law it is no remitter. quod nota.
So if the heire of the disseisor infeoffe the disseisee and a stranger, and make him liverie, al-
23. H. 8. pl. 2.
18. Eliz. 175.
Lit. pl. 683.
Lit. pl. 615.
though the stranger die before any agreement or taking of the profits by the disseisee, yet he is not remitted, because though a moitie bee cast upon him by survivor, yet that is but Ius accrescendi, and it is no casting of the freehold upon him by act in law, but hee is still as an immediate purchasor, and therefore no remitter.
So if the husband bee seised in the right of his wife, and discontinue and dieth, and the feme takes another husband, who takes a feoffement from the discontinuee to him and his wife, the same is not remitted; and the reason is, because shee was once sole, and so a laches in her for not pursuing her right: but if the feoffement taken backe had been to the first husband and her selfe, she had been remitted.
Yet if the husband discontinue the lands of the wife, and the discontinuee make a feoffement to the use of the husband and wife, shee is not remitted; but that is upon a speciall reason, upon the letter of the statute of 27. H. 8. of uses, that wisheth that the cestuy que use shall have the possession in qualitie and degree as he had the use; but that holdeth place onely upon the first vesting of the use; for when the use is absolutely executed and vested, then it doth insue meerely the nature of possessions; as if the discontinuee had made a feoffement in fee to the use of I. S. for
life, the remainder to the use of baron and feme, and lessee for life die, now the feme is remitted, causa qua supra.
Also if the heire of the disseisor make a lease for life, the remainder to the disseisee who chargeth the remainder, and the lessee: for life dies, the disseisee is not remitted; and the reason is, his intermeddling with the wrongfull remainder, whereby he hath affirmed the same to be in him, and so accepted it: but if the heire of the disseisor had granted a rent charge to the disseisee, and afterwards made a lease for life, the remainder to the disseisee, and the lessee for life had died, the disseisee had been remitted, because there appeareth no assent or acceptance of anie estate in the freehold, but onely of a collaterall charge.
So if the feme be disseised and intermarry with the disseisor, who makes a lease for life, rendring rent, and dieth leaving a sonne by the same feme, and the sonne accepts the rent of the lessee for life, and then the feme dies, and the lessee for life dies, the sonne is not remitted, yet the franketenement was cast upon him by act in law, but because hee had agreed to be in the tortious reversion by acceptance of the rent, therefore no remitter.
So if tenant intaile discontinue, and the discontinuee make a lease for life, the remainder to
tale l??ment le ley dene[-] contrarie.
Lit. pl. 666.
2. M. Condic. 3.
14. H. 8. Dyer 3 10.
6. Ed. 3. 120.
28. H. 8. pl. 203.
the issue intaile beeing within age and at full age, the lessee for life surrendreth to the issue intaile and tenant intaile dies, and lessee for life dies, yet the same issue is not remitted; and yet if the issue had accepted a feoffement within age, and had continued the taking of the profits when hee came of full age, and then the tenant intaile had died, notwithstanding his taking of the profits he had beene remitted: for that which guides the remitter, is, if he be once in of the free hold without any laches: as if the heire of the disseisor enfeoffes the heire of the disseisee who dies, and it descends to a second heire upon whom the frank tenement is cast by discent, who enters and takes the profits, and then the disseisee dies, this is a remitter, causa qua supra.
Also if tenant intaile discontinue for life, and take a surrender of the leasee, now hee is remitted and seised againe by force of the taile, and yet hee commeth in by his owne act: but this case differeth from all other cases, because the discontinuance was but particular at first, and the new gained reversion is but by intendment and necessity of law; and therefore is but as it were ab initio, with a limitation to determine whensoever the particular discontinuance endeth, and the state commeth backe to the ancient right.
To proceed from cases of remitter, which is a great branch of this rule, to other cases; If exe-
cutors do redeeme goods pledged by their testator with their owne money, the law doth convert so much goods as doth amount to the value of that they hide forth, to themselves in property, and upon a plea of fully administred it shall bee allowed: the reason is, because it may hee matter of necessitie, for the well administring of the goods of the testator, and executing their trust that they disburst money of their owne: for else perhaps the goods would bee forfeited, and hee that had them in pledge would not accept other goods but money, and so it is a libertie which the law gives them, and they cannot have any suite against themselves; and therefore the law gives them leave to retaine so much goods by way of allowance: and if their bee two executors, and one of them pay the money, hee may likewise retaine against his companion if hee have notice thereof.
But if there bee an overplus of goods, above the value of that he shall disburse, then ought he by his chime to determine what goods hee doth elect to have in value,or else before such election if his companion doe sell all the goods, hee hath no remedy but in Spirituall Court: for to say he should bee tenant in common with himselfe and his companion pro rata of that hee doth lay out, the law doth reject that course for intricatenesse.
So if I have a lease for yeares worth 20l. by
Lit. pl. 3. 6
6. H. 8. pl. 3.
3. Eliz. 187. pl. 8.
the yeare, and graunt unto I. D. a rent of 10l. a yeare, and later make him my executor, now I. D. shall be charged with assets ten pounds onely and the other ten pounds shall be allowed and considered to him; and the reason is, because the not refusing shall bee accounted no laches unto him, because an executorship is pium officium, and matter of conscience and trust, and not like a purchase to a mans owne use.
Like law it is, where the debtor makes the debtee his executor, the debt shall bee considered in the assets, notwithstanding it bee a thing in action.
So if I have a rent charge, and graunt that upon condition, now though the condition be broken, the grantees estate is not defeated till I have made my claime; but if after such grant my father purchase the land, and it descend to mee, now if the condition be broken, the rent ceaseth without claime: But if I had purchased the land my selfe, then I had extincted mine owne condition, because I had disabled my selfe to make my claime, and yet a condition collaterall is not suspended by taking backe an estate; as if I make a feoffement in fee, upon condition that I. S. shall marry my daughter, and take a lease for life from my feoffee, if the feoffee breake the condition, I may claime to hold in by my fee-simple; but the case of the charge is otherwise, for it I have a
rent charge issuing out of 20. acres, and graunt the rent over upon condition, and purchase but one acre, the whole condition is extinct, and the possibilitie of the rent by reason of the condition, is as fully destroyed as if there had beene no rent in Esse.
So if the King graunt to mee the wardship of I. S. the sonne and heire of I. S. when it falleth, because an action of covenant lieth not against the King, I shall have the thing my selfe in interest.
But if I let land to I. S. rendring a rent, with a condition of reentry, and I. S. bee attainted, whereby the lease comes to the King, now the demand upon this land is gone, which should give mee benefit of reentrie, and yet I shall not have it reduced without demaund; and the reason of difference is, because my condition in this case is not taken away in right, but onely suspended by the priviledge of the possession: for if the King grant the lease over, the condition is revived as it was.
Also if my tenant for life graunt his estate to the King, now if I will graunt my reversion over, the King is not compellable to atturne, therefore it shall passe by graunt by deede without atturnment.
19. H. 8. pl. 7. in fine.
22. Ass. 52. F. Rec. in volume
2. H. 4. 21. Cond. 185. 2. H. 7. 5. 37. H. 6. 32.
6. Ed. 6. coud. 133.
Lit. pl. 135.
20 H. 7. per Pol.
25. H. 6. Fitz. Barr. 162.
30. H. 6. pl.
7. H. 6. 40.
9 Ed. 2. Fitz.
8. Ed. 6. Dy. 72.
Vide contra 2. E. 3. fo. 8. que per presentment[-] del feme l advowson est deveign disimpropriate a touts iours quel est agree in Snr Cok. Rep.7. fo. 8. a.
So if my tenant for life bee, and I graunt my reversion per auter vie, and the grantee dye, living cei que vie, now the privity betweene tenant for life and mee is not restored, and I have no tenant in esse to atturne, therefore I may passe my reversion
without atturnement. quod nota.
So if I have a nomination to a Church, and another hath the presentation, and the presentation comes to the King, now because the King cannot bee attendant, my nomination is turned to an absolute patronage.
So if a man bee seised of an advouson, and take a wife, and after title of dower given her, joine in impropriating the Church, and dieth, now because the Feme cannot have the turne because of the perpetuall incumbency, shee shall have all the turnes daring her life; for it shall not bee disimpropriated to the benefit of the heire contrary to the graunt of tenant in fee-simple.
But if a man graunt the third presentment to I. S. and his heires, and impropriate the advouson, now the grauntee is without remedy, for hee tooke his graunt subject to that mischiefe at first, and therefore it was his laches, and therefore not like the case of the dower; and this graunt of the third avoidance is not like tertia pars aduocationis, or medietas advocationis upon a tenancy in common of the advouson; for if two tenants in
common bee, and an usurpation be had against them, and the usurper doe impropriate, and one of the tenants in common do release, and the other bring his writ of right de medietate aduocationis and recover, now I take the law to bee that because tenants in common ought to joine in presentment which cannot now be, he shall have the whole patronage: for neither can there bee an apportionment, that he should present all the turnes, and his incumbent but to have a moitie of the profits, nor yet the act of impropriation shall not bee defeated. But as if two tenants in common be of a Ward, and they joine in a writ of right of Ward and one release, the other shall recover the entire Ward, because it cannot be
divided: so shall it bee in the other case, though it be an inheritance, and though he bring his action alone.
As if a disseisor be disseised, and the first disseisee release to the second dissseisor upon condition, and a descent be call, and the condition broken; now the meane disseisor whose right is revived shal enter notwithstanding this descent, because his right was taken away by the act of a stranger.
But if I devise land by the statute of 32. H. 8. and the heire of the devisor enters and makes a feoffement in fee, and the feoffee dieth seised, this descent bindeth, and there shall not bee a
45. Ed. 3.
suit resolu in Martin Trotts. case, pa. 32. Eliz. in Com. banco, & Pa. 1. Iac. ib. vide 7. R 2. Scire fac. 3. 41. E. 3. 14. per Finchden.
perpetual liberty of entry upon the reason that he never had seison whereupon he might ground his action, but hee is at a mischiefe by his owne laches; and like law is of the Kings Pattentee; for I see no reasonable difference betweene them and him in the remainder, which is Littletons case.
But note, that the Law by operation and matter in fact will never countervaile and supply a title grounded upon a matter of record, and therfore if I be entituled unto a writ of error, and the land descend unto mee, I shall never be remitted, no more shall I bee unto an attaint, except I may also have a writ of right.
So if upon my avowry for services, my tenant disclaime where I may have a Writ of right as upon disclaimer, if the land after descend to me, I I shall never be remitted.
Verba generalia restringuntur ad habilitatem rei vel person´┐Ż.
It is a rule that the Kings graunts shall not bee taken or construed to a speciall intent; it is not so with the graunts of a common person, for they shall be extended as well to a forrein intent as to a common intent; yet with this exception, that they shall never bee taken to an impertinent
or a repugnant intent: for all words, whether they bee in deedes or statutes, or otherwise if they be general and not expresse and precise, shall bee restrained unto the fitnesse of the matter or person.
As if I graunt common in omnibus terris meis in D. and I have in D. both open grounds and severall, it shall not bee stretched to my common in severall, much lesse in my Gardens and Orchards.
So if I graunt to a man omnes arbores meas crescentes super terraa meas in D. hee shall not have Apple trees or other fruit trees growing in my Gardens or Orchards if there bee any other trees upon my ground.
So if I graunt to I. S. an annuitie of x. l. a yeare pro consilio impenso & impendendo, if I. S. bee a Physitian, it shall bee understood of his counsell in Physicke; and if he bee a Lawyer, of his counsell in Law.
So if I doe let a tenement to I. S. neere by my dwelling house in a Burrough, provided that hee shall not erect or use any shop in the same without my licence, and afterwards I licence him to erect a shop, and I. S. is then a Miller, hee shall not by vertue of these generall words erect a Joiners shop.
25. H. 8. Dy. 1. 7.
Perk. pl 108.
14. H. 8. 2.
41. Ed. 3. 6. 19.
So the statute of Chantries that willeth all lands to be forfeited, given or imployed to a superstitious use shall not bee construed of the glebe lands of Parsonages: nay further, if the lands be given to the Parson of D. to say a Masse in his Church of D. this is out of the statute, because it shall bee intended but as an augmentation of his glebe; but otherwise had it beene if it had beene to say a Masse in any other Church but his owne.
So in the statute of wreckes, that willeth that goods wrackt where any live domesticall creature remaines in a vessell shall be preserved to the use of the owner that shall make his claime by the space of one yeare doth not extend to fresh victuals or the like which is impossible to keepe without perishing or destroying it; for in these and the like cases generall words may bee taken, as was laid to a rare and forreine intent, but never to an unreasonable intent.
Iura sanguinis nulla iure ciuili
They bee the very words of the Civill law, which cannot bee amended to explaine this rule. Hares est nomen Iuris, filius est nomen Natura: therefore corruption of bloud taketh away the privitie of the one, that is, of the heire. but not
of the other, that is, of the sonne; therefore if a man bee attainted and murthered by a stranger the eldest sonne shall not have the appeale, because the appeale is given to the heire, for the youngest sonnes who are equal in bloud shall not have it; but if an attainted person bee killed by his sonne, this is pettie treason, for that the privitieof a sonne remaineth: for I admit the law to be, that if the sonne kill his father or mother it is pettie treason, and that there remaineth so much in our lawes of the ancient foote-steps of Potestas patri´┐Ż and naturall obedience, which by the law of God is the very instance itselfe, and all other goverment and obedience is taken but by equitie, which I had, because some have thought to weaken the law in that point.
So if land descend to the eldest sonne of a person attainted from his ancestour, of the mother held in Knights service, the guardian shall enter, and ouste the father, because the law giveth the father that prerogative in respect hee is his sonne and heire; for of a daughter or a speciall heire intaile hee shall not have it: but if the sonne be attainted, and the father covenant in consideration of naturall love to stand seised of land to his use, this is good enough to raise an use, because the privity ofa naturall affection remaineth.
So if a man be attainted and have a Charter of pardon, and bee returned of a Jury betweene his
l8. Eliz. 337. Dyer.
36. H. 6. 57. 58.
21. Ed. 3. 17.
F. N. Br. fo. 143.
sonne and I. S. the challenge remaineth; for hee may maintaine any suite of his sonne, notwithstanding the bloud be corrupted.
So by the statute of 21. the Ordinary ought to commit the administration of his goods that was attainted, and purchase his Charter of pardon to his children, though borne before the pardon, for it is no question of inheritance: for if one brother of the halfe bloud dye, the administration ought to bee committed to his other brother of the halfe bloud, if there bee no neerer by the father.
So if the uncle by the mother be attainted, and pardoned, and land descend from the father to the sonne within age held in soccage, the uncle shall be guardian in soccage; for that savoureth so little of the privity of heire, as the possibility to inherit shutteth not.
But if a Feme tenant intaile assent to the ravisher, and have no issue, and her cousin is attainted, and pardoned, and purchaseth the reversion, hee shall not enter for a forfeiture. For though the law giveth it not in point of inheritance, but onely as a perquisite to any of the bloud so hee bee next in estate, yet the recompence is understood for the staine of his bloud, which cannot bee considered when it is once wholly corrupted before.
So if a villein bee attainted, yet the Lord shall have the issues of his villein borne before or after the attainder; for the Lord hath them Iure natur´┐Ż but as the increase of a flocke.
Quar´┐Ż whether if the eldest sonne bee attainted, and pardoned, the Lord shall have aide of his tenants to make him a Knight, and it seemeth hee shall; for the words of the writ hath filium primogenitum, and not filium & h´┐Żredem, and the like writ hath pur file marrier who is no heire.
Receditur ´┐Ż placitis iuris, potius quam iniu-
ri´┐Ż, & delicta maneant impunita.
The law hath many grounds and positive learnings, which are not of the maximes and conclusions of reason, but yet are learnings
received with the law, set downe, and will not have called in question: these may bee rather called placita iuris than regul´┐Ż iuris; with such maximes the law will dispense, rather than crimes and wrongs should bee unpunished, quia salus populi suprema lex, and salus populi is contained in the repressing offences by punishment.
Therefore if an advouson be graunted to two, and the heires of one of them, and an usurpation bee had, they both shall joine in a writ of right of advouson; and yet it is a ground in law, that a
5. Ed. 6. Adm. 47.
33. H. 6. 55.
5. Ed. 4. 5.
F. N. br. 829
writ of right lieth of no lesse estate than a feesimple; but because the tenant for life hath no other severall action in the law given him, and also that the jointure is not broken, and so the tenant in fee-simple cannot bring his writ of right alone, therefore rather than hee shall bee deprived wholly of remedy, and this wrong unpunished, hee shall joine his companion with him, notwithstanding the feeblenesse of his estate.
But if lands bee given to two, and to the heires of one of them, and they leese in a Precipe by default, now they shall not joine in a writ of right, because the tenant for life hath a severall action, viz. a quod ei deforciat, in which respect the jointure is broken.
So if tenant for life and his lessor joine in a lease for yeares, and the lessee commit waste, they shall joine in punishing this waste, and locus vastatus shall goe to the tenant for life, and the damages to him in reversion, and yet an action of waste lieth not for tenant for life, but because hee in the reversion cannot have it alone, because of the meane estate for life, therefore rather than the waste shall bee unpunished, they shall joine.
So if two coperceners bee, and they lease the land, and one of them dye, and hath issue, and the lessee commit waste, the aunt and the issue shall joine in punishing this waste, and the issue shall
recover the moity of the place wasted, and the aunt the other moity and the entire damages;
and yet actio iniuriarum moritur cum persona, but in favorabilibus magis attenditur quod prodest, quam quod nocet.
So if a man recovers by erroneous judgement, and hath issue two daughters, and one of them is attainted, the writ of error shall bee brought against the parceners, notwithstanding the privity
faile in the one.
Also it is a positive ground, that the accessary in felony cannot bee proceeded against untill the principal I bee tryed; yet if a man upon subtilty and malice set a mad man by some device to kill him, and hee doth so, now forasmuch as the mad man is excused, because hee can have no will, nor malice, the law accounteth the incitor as principall, though hee bee absent, rather than the crime shall goe unpunished.
So it is a ground of the law, that the appeale of murther goeth not to the heire where the party murthered hath a wife, nor to the younger brother where there is an elder; yet if the wife murther her husband, becauses shee is the party offendor, the appeale leaps over the heire; and so if the sonne and heire murther his father, it goeth to the second brother.
45. Ed. 3. 21.
45. Ed. 3. 3. 22. H. 6. 24.
20. Ed. 2.
F. discent. 162.
Ed. 4. M. 23. 6. Stamff. lib. 2. fol. 60.
But if the rule bee one of the higher sort of maximes, that are regul´┐Ż rationales and not positiu´┐Ż, then the law will rather endure a particular offence to escape without punishment, than violate such a rule.
As it is a rule that penall statutes shall not bee taken by equity, and the statute of 1. Ed. 6. enacts that those that are attainted tor stealing of horses shall not have their Cleargy, the Judges conceived, that this did not extend to him that should steale but one horse, and therefore procured a new act for it in 2. Ed. 6. cap. 33. and they had reason for it, as I take the law, for it is not like the case upon the statute of Glost. that gives the action of waste against him that holds pro termino vit´┐Ż vel annorum. It is true, that if a man holds but for a yeare, he is within the statute, for it is to bee noted, that penall statutes are taken strictly and literally onely in the point of defining and setting downe the fact and the punishment, & in those clauses that doe concerne them, and not generally in words that are but circumstances and conveyance in the putting of the case, and so see the diversity; for if the law bee, that for such an offence a man shall leese his right hand, and the offender hath had his right hand before cut off in the warres, hee shall not lose his left hand, but the crime shall rather passe without the punishment which the law assigned, than
the letter of the law should bee extended; but if the statute of 1. Ed. 6. had beene, that hee that should steale one horse should bee ousted of his Cleargie, then there had beene no question at all but if a man had stolne more horses than one, but that hee had beene within the statute, quia omne maius continet in se minus.
Non accipi debent verba in demonstrationem falsam qua competunt in limitationem veram,
Though falsitie of addition or demonstration doth not hurt where you give the thing a proper name, yet neverthelesse if it stand doubtfull upon the words, whether they import a false reference and demonstration, or whether they be words of restaint that limit the generality of the former name, the law will never intend error or falsehood.
Therefore if the Parish of Hurst do extend into the Counties of Wiltsh. and Barksh. and I graunt my Close called Callis, situate and lying in the Parish of Hurst in the countie of Wiltsh. and the troth is, that the whole Close lieth in the County of Barksh. yet the law is, that it passeth wellenough, because there is a certaintie sufficient in that I have given it a proper name which the false reference doth not destroy, and not upon the reason that these words, in the Countie of
Lit. cap. 46. Ed. 3. 31.
12. Eliz. 6. 295 23. Eliz. Dyer
376. 7. Ed. 6. Dy. 56.
Wiltsh. shall be taken to goe to the Parish onely, and so to bee true in some sort, and not to the Close, and so to be false. For if I had graunted omnes terras meas in Parochia de Hurst in Com. Wiltsh. and I had no lands in Wiltsh. but in Barksh. nothing had past.
But in the principall case, if the Close called Callis had extended part into Wiltsh. and part into Barksh. then onely that part had passed which lay in Wiltsh.
So if I graunt omnes & singulas terras meas in tenura I. D. quas perquesiui de I. N. in Indentura dimimissionis fact I. B. specificat. If I have land wherein some of these references are true and the rest false, and no land wherein they are all true, nothing passeth: as if I have land in the tenure of I. D. and purchased of I. N. but not specified in the Indenture to I. B. or if I have land which purchased of I. N. and specified in the Indenture of demise to I B. and not in the tenure of I. D.
But if I have some land wherin all these demonstrations are true, and some wherin part of them are true and part false, then shal they be intended words of true limitation to passe only those lands wherein all those circumstances are true.
Licet dispositio de interesse futuro sit inutilis, tamen potest fieri declaratio pr´┐Żcedens qua sortiatur effectum interueniente nouo actu.
The law doth not allow of grants except there be a foundation[-] of an interest in the grantor; for the law that will not accept of graunts of titles or of things in action which are imperfect interests, much lesse will it allow a man to graunt or incumber that which is no interest at all but meerely future.
But of declarations precedent before any interest vested, the law doth allow but with this difference, so that there be some new act or conveyance to give life & vigour to the declaration[-] precedent.
Now the best rule of distinction[-] between graunts & declarations, is, that graunts are never countermandable not in respect of the nature of the conveyance or instrument, though somtime in respect of the interest granted they are, wheras declarations evermore are countermandable[-] in their natures
And therefore if I graunt unto you, that if you enter into an obligation to me of 100 l. and after doe procure mee such a lease, that then the same obligation shall be void, and you enter into such an obligation unto me, & afterwards do procure such a lease, yet the obligation is simple, because the defeisance was made of that which was not.
So if I graunt unto you a rent charge out of white acre and that it shall be lawfull for you to distraine in all my other lands wherof I am now seised, and which I shall hereafter purchase, al-
9. Ed. 4. 7. 21. Ed. 3. 18.
19. H. 6. 63.
27 Ed. 3.
29. Ed. 3. 6. 24. Eliz.
13. 14. Eliz. 20. 21. Eliz. 25. Eliz.
M 38. &
though this bee but a libertie of distresse, and no rent save onely our of white acre, yet as to the lands afterwards to bee purchased the clause is voyd.
So if a reversion bee graunted to I. S. and I. D. a stranger by his deede doe graunt to I. S. that if he purchase the particular estate, hee will atturne to the graunt, this is a void atturnment, notwithstanding hee doth afterwards purchase the particular estate.
But of declarations the law is contrarie; as if the disseisee make a charter of feoffement to I. S. and a letter of atturney to enter and make livery and seisme, and deliver the deede of feoffement, and afterwards liverie and seisme is made accordingly, this is a good feoffement and yet hee had no other thing than a right at the time of the deliverie of the charter, but because a deede of feoffement is but matter of declaration and evidence, and there is a new act which is the liverie subsequent, therfore it is good in law.
So if a man make a feoffement to I.S. upon condition to enfeoffe I. N. within certaine dayes, and there are deedes made both of the first feoffement and the second, and letters of atturney accordingly, and both those deedes of feoffrment, and letters of atturney are delivered at a time, so that the second deede of feoffement
and letters of atturny are delivered when the first
feoffee had nothing in the land, and yet if both liveries bee made accordingly, all is good.
So if I covenant with T. S. by indenture, that before such a day I will purchase the mannour of D. and before the same day I will levy a fine of the same land, and that the same fine shall bee to certaine uses which I expresse in the same indenture, this indenture to leud uses being but matter of declaration and countermandable, at my pleasure will suffice, though the land be purchased after; because there is a new act to bee done, viz. the fine.
But if there were no new act then otherwise it is; as if I covenant with my sonne, in consideration of naturall love, to stand seised unto his use of the lands which I shall afterwards purchase, yet the use is voide; and the reason is, because there is no new act, nor transmutation of possession following to perfect this inception; for the use must bee limited by the feoffor, and not the feoffee, and hee had nothing at the time of the covenant.
So if I devise the mannour of D. by speciall name, of which at that time I am not seised, and after I purchase it, except I make some new publication of my will this device is voide; and the reason is, because that my death which is the
25. Eliz. 27. Eliz.
Com. Plowd. Rigdens case.
consummation of my will is the act of God, and nor my act, and therefore no such act as the law
But if I grant unto I. S. authority by my deed to demise for yeares, the land whereof I am now seised, or hereafter shall bee seised; and after I purchase the lands, and I. S. my Atturney doth demise them, this is a good demise, because the demise of my atturney is a new act, and all one with a demise by my selfe.
But if I morgage land, and after covenant with I. S, in consideration of money which I receive of him, that after I have entred for the condition broken, I will stand seised to the use of the same I. S. and I enter, and this deede is enrolled, and all within the six months, yet nothing passeth away, because this enrollment is no new act, but a perfective ceremony of the first deede of bargaine and sale; and the law is more strong in that case, because of the vehement relation which the enrollment hath to the time of the bargaine and sale, at what time hee had nothing but a naked condition.
So if two Jointments bee, and one of them bargaine, and sell the whole land, and before the enrollment his companion dieth, nothing passeth of the moity accrued unto him by survivor.
In criminalibus sufficit generalis malitia in-
tentionis cum facto paris gradus.
All crimes have their conception in a corrupt intent, and have their consummation and issuing in some particular fact; which though it bee not the fact at which the intention of the malefactor levelled, yet the law giveth him no
advantage of that error, if another particular ensue of as high a nature.
Therefore if an impoisoned apple bee laid in a place to poison I. S. and I. D. commeth by chance and eateth it, this is murther in the principall that is actor, and yet the malice in indiuiduo was not against I. D.
So if a thiefe finde the doore open, and come in by night and rob an house, and bee taken with the manner, and breake a doore to escape, this is burglary, yet the breaking of the doore was without any felonious intent, but it is one entire act.
So if a Caliver bee discharged with a murtherous intent at I. S. and the Peece breake, and strike into the eye of him that dischargeth it and killeth him, hee is felo de se, and yet his intention was not to hurt himselfe; for felonia de se and murther are crimina paris gradus. For if a man perswade another to kill himselfe, and bee
6. Ed. 6. Br.
18. Eliz. Sanders case com. 474.
Cr. 1. peace. 30.
present when hee doth so, hee is a murtherer.
But qu´┐Żre, if I S. lay impoisoned fruit for some other stranger his enemy, and his father or mother come and eate it, whether this bee petty treason, because it is not altogether crimen paris
Mandata licita recipiunt strictam interpreta-
tionem, sed illicita, latam & extensam.
In commiting of lawful authoritie to another a man may limit it as strictly as it pleaseth him, and if the partie authorized doe transgresse his authoritie, though it bee but in circumstance expressed, it shall be void in the whole act.
But when a man is author and monitor to another to commit an unlawfull act, then he shall not excuse himselfe by circumstances not pur-
Therefore if I make a letter of attorney to I. S. to deliver liverie and seisin in the capitall Messuage, and hee doth it in another place of the land, or betweene the houres of 2. and 3. and he doth it after or before; or if I make a Charter of feoffement to I. D.and I. B. and expresse the seisin to be delivered to I. D. and my attorney deliver it to I. B. in all these cases the act of the atturney
as to execute the estate., is void; but if I say generally to I. D. whom I meane onely to enfeoffe, and my atturney make it to his atturney, it shall be intended, for it is a livery to him in law.
But on the other side, If a man command I. S. to robbe I. D. on Shooters-hill, and hee doth it on Gads-hill, or to robbe him such a day, and he doth it not himselfe but procureth I. B. to do it;
or to kill him by poison, and hee doth it by violence; in all these cases notwithstanding the fact bee not executed, yet hee is accessary neverthelesse.
But if it be to kill I. S. and he killeth I. D. mistaking him for I. S. then the acts are distant in substance, and he is not accessary.
And be it that the facts be of differing degrees, and yet of a kinde.
As if a man bid I. S. to pilfer away such things out of a house, and precisely restraine him to doe it sometimes when he is gotten in without breaking of the house, and yet hee breaketh the house, yet hee is accessary to the burglarie: for a man cannot condition with an unlawfull act, but he must at his perill take heede how hee putteth himselfe into another mans hands.