THE PRINCIPLES OF LAW Reduced to PRACTICE. By W. PHILLIPPS. LONDON, Printed for Hen. Twyford, Thomas Dring, john Place, and are to be sold at their Shops, 1660. To the Reader. AMidst the many Complaints that have been taken up against the Law, there is not any that seems of Weight, unless it be that of its want of Method. And in truth that is not a real, but only a seeming Objection: for the Learned know that the Law of England (excepting Statutes) is a customary, and no written Law: and therefore it is no wonder, that the Professors thereof have not been curious in the methodizing of that Art, which has its force only from Custom, and was never committed to writing. But, although it be not capable of Exquisite Method; it cannot be denied, but of late times, fair Essays have been made for the better retaining of the same in memory: which has been by putting particular Cases under general Rules; which, as to the younger Students it must needs be very helpful; so, to Attorneys (whose practice will not permit them to peruse the greater Volumes of the Law,) it cannot be less useful. Having therefore at spare hours Collected the Ensuing Principles of Law, and communicated the same to some most eminent in that Profession; their approbation has been such, that it has deemed them worthy the Public view. Whereupon being secured of the skill of those Gentlemen I confidently commit them to the World, not doubting but they will have as good reception abroad, as they have met with in private. For, if I mistake not much, you will find them to come home to your Business and Occasions. Farewell. A TABLE Of the MAXIMS, Displayed in this TRACTATE. A ACcessorium non ducit sed sequitur suum Principale. The Accessary followeth the Principal: fol. 1. A communi observantiâ non est recedendum. Common opinion, a rule in Law. fol. 2. Actio personalis moritur cum persona. A personal action ends with the person. Ibid. Actus Dei nemini facit injuriam. An act of God injureth not man. ib. Actus legis nulli facit injuriam. An act of Law is injurious to none. fol. 3 Actus non facit reum nisi mens sit rea. The mind, not the act, maketh a man guilty. ib. Actus repugnans non potest produci in esse. Contradictions cannot be brought into being ib. Actus me in vito factus non est meus actus. An act done against my will, is not my act: fol. 4 Actori incumbit onus probandi: The Plaintiff must prove. ib. Additio probat minoritatem. Addition argues the less extent. fol. 5. Ad proximum antecedens fiat relatio. The Relative has respect to the next Antecedent. ib. Ad quaestionem Facti non respendent Judices. Judges do not decide matters of fact. fol. 6 Aestimatio praeteriti delicti post factum munquam crescit. No subsequent matter adds degrees of guilt to a past fault. ib. Affectio no mwn imponit operi. The intention denominates the action. ib. Affectus punitur, licet non sequatur effectus. The affection is punishable, though the effect do not follow. fol. 7 Affirmativum negativum implicat. An affirmative implieth a negative. ib. Agentes & Consentientes pari poenâ plectuntur. The actor and the consentor are equally culpable. fol. 8. Aliquis non potest esse judex in propria causa. None must be judge in his own cause. ib. Apices juris non sunt jura. Niceties of Law are no Law. fol. 9 Ambiguum placitum interpretari debet contra proferentem. A doubtful plea shall be taken strongest against the pleader. ib. B Benignae faciendae sunt interpretationes chartarum, propter simplicitatem laicorum; ut res magis valeat quam pereat. Charters admit of a favourable construction, by reason of the Lay man's ignorance; that the thing may be in force rather than perish. fol. 10. Benignior sensus in verbis dubiis est praeferendus. In doubtful things, the most favourable construction is to be preferred. 11. C Causa & origo est materia negotii. The cause of the business is the offence of it. 11. Caveat emptor. Let the buyer beware. ib. Certa debet esse intentio & narratio. Counts and Declarations ought to be certain. 12 Cessante causa, cessat effectus. The cause being gone, the effect ceaseth. ib. Charta non est nisi vestimentum donationis. Charter is, as it were, the garment of the gift. ib. Communis error facit jus. Common error constituteth a right. 13. Consensus, non concubitus, facit matrimonium. Consent, not the sheets completes the marriage. ib. Conditio bene ficialis quae statum construit, benign secundum urborum intentionem est interpretanaa-Beneficial conditions are to be taken according to the intention of the words. 14 Consensus tollit errorem. Consent takes away error. ib. Consuetudo debet esse certa. A custom ought to be certain. 15 Constructio juris nemini facit injuriam. Favourable construction of Law injures not man. ib. Consuetudo semel reprobata non potest amplius introduci. A custom once rejected cannot be used again. 16 Consuetudo tollit legem. Custom taketh away the Law. 17 Contraria aellegans non est audiendus. He that allegeth contradictions is not to be heard. ib. Cui licet quod majus est, non debet quod minus est non licere. He that may do more, can do less. ib. Cuique naturale est, illud quod procreavit tueri. The Law of Nature commands every one to defend his issue. 18 Cuilibet in arta sua perito est credendum. The Artist must be believed in his own Art. ib. Cujus est dare, ejus est disponere. The Giver may dispose of his gift. ib. D Debile fundamentum tollit opus. A weak foundation defeats the superstructure. 19 Derivativa potestas non potest esse major primitiuâ A derivative power cannot be greater than the primitive. 20 Destinata tantum, pro factis non habentur. Things intended shall not be taken for things done, ib. De fide & offieio judicis, non recipitur quaestio. A Judge's honesty ought not to be questioned. ib. Dies Dominicus non est juridieus. The Sabbath-day is no day in Law. 21 Divinatio, non interpretatio est, quae omnino recedit à litera. It is a guessing, not an interpretion, which wholly leaves the Letter. ib. Dilationes in lege sunt odiosae. Dilatory pleas are odious. 22 Dispositio de interesse futuro, est inutilis. A disposition of a future interest is null. ib. Dominus non maritabit minorem in custodia sua, nisi semel. A Ward shall be forced to marriage but once. 23 Dormit aliquando jus, moritur nunquam. A right is suspended sometimes, never extinguished. ib. Doti mulieris parcatur, quia praemium pudoris est. A woman's dower shall be spared, because it is the reward of chastity. 24 Dona clandestina semper sunt suspitiosa. Under board gifts are suspicious. ib. Does de dote peti non debet. One Dower cannot be made out of another. E Ecclesia fungitur vice minoris; meliorem potest facere conditionem, deteriorem nequaquam. The Church exercising the office of a minor, it may make his condition better, not worse: 25 Executio juris nulli facit injuram. Execution of the Law injures none. 26 Expressio eorum quae tacite insunt, nihil operatur. Expression of those things which are understood works nothing: ib. Ex nudo pacto non oritur actio. Of a bare agreement there ariseth no action. ib. Expressum facit cessare tacitum. An express drowneth an implication. 27 Extra jurisdictionem jus dicenti, non paretur impune. He that obeys a Judge beyond his commission, shall not go . ib. Exteriora acta indicant interiora animi secreta: The outward actions show the inward intentions of the mind: ib. Ex verbo gencrali aliquid excipitur. Every general rule has an exception. 28. F Facinus quos inquinat aequat. An offence equalleth those that are guilty of it. 28 Festinatio Justitiae noveroe infortunii. More haste then good speed. ib. Finis rei attendendus, Mark the end. 29 Filiatio non potest probari. Legitimation cannot be proved. 30 Firmior est operatio legis quam dispositio hominis. The disposition of the Law is stronger than any proviso of man: ib. Frustra fit per plura, quod potest fieri per pauciora. Much is needless, where less will serve the turn. ib. Furiosus furore suo punitur. A madman is punished by his own madness. 31. G Generale nihil oerti implicat. General's determine nothing. 32. Generalibus semper specialia insunt Special things are always contained in generals. 32. Generalis clausula non refertur ad expressa. A general clause is not referred to those things which are expressed. 33. Generalis clausula non porrigitur ad ea, quae antea sunt specialiter comprehensa. A general clause is not extended to those things, which were before specially comprehended. 34. Generalia sunt praeponenda singularibus. General's are to be preferred before particulars. ib. H Haeres est pars antecessoris. The son is part of the father. 35. Haeres legitimus, est, quem nuptiae demonstrant. He is a lawful heir, whom marriage connteth so: ib. Haeres non tenetur ad debita antecessoris reddenda, nisi per antecessorem ad hoc suerit obligatus; praeterquam debita Regis tantum. An heir is not bound to pay his ancestor's debts, unless to the King, if he be not bound by the deed of his ancestor. ib: Hermaphrodita tam masculo quam foeminae comparatur, secundum praevalescentiam sexus incalescentis. An Hermaphrodite inherits, according to the prevalency of the sex. 36. I Id certum est, quod certum reddi potest. That is certain, that may be made certain. ib. Ignoratio juris non excusat. Ignorance of the Law is no excuse. 37 Ignorantia facti execusat. Ignorance of the fact does excuse. 38 Ignoratis terminis, ignoratur & ars. The terms not known, the art is not understood. 38 Impotentia ex usat legem. That which cannot be helped, cannot hurt. 39 Idem non potest esse agent & patience. The same cannot be agent and patiented. ib: Impersonalitas nec concludit, nec ligat. Impersonality doth not conclude nor bind. 40 Imperitia maximae est mechanicorum poena. Ignorance is the artists greatest punishment. ib. Inclusio uninus est exclusio alterius. The including of one thing is the excluding of another. ib. Infinitum in jure reprobatur. Infinity is rejected in Law: 41 In fictione legis semper est aequitas. In the fiction of Law is quity. ib. In aequali jure melior est possessio possidentis. In an equal cause possession is best. 42 Injuria illata in corpus non potest remitti. Injuries made upon the body cannot be remitted, ib. In ambiguis casibus, semper praesumitur pro Rege. In ambiguous cases, 'tis always presumed for the King. 43 In disjunctivis, sufficit alterum esse verum: In disjunctives, 'tis sufficient if one of them be true: ib. In jure, non remota sed proxima causa spectatur. The Law respects the most immediate cause. 44. Impossibile est unum corpus in duobus locis esse simul. The same body cannot be at two places at the same time. 46. In praesentia majoris, cessat potentia minoris. A greater power drowns a less. ib. In quo quis deliquit, in eo de jure puniendus est. In what one offendeth, in the same he rightly suffers. 47 In omnibus obligationibus, quibus dies non ponitur, praesenti die debetur. Where no time is set, the debt is presently due. ib. Judic is est judicare secundum allegata & probata. The Judge ought to determine according to proof. 48. Judicium pro veritate accipitur. Judgement & truth equivalent: ib. Judicium a non suo judice datum, nullius est momenti. If Judgement be not given by the proper Judge, it is of no force. 49 Junior non potest dotem promereri. A woman under nine years cannot have dower. 50 Jura naturalia sunt immutabilia. The Laws of nature are immutable. ib. Ipsae etenim leges eupiunt ut jure regantur. Laws are ruled by equity: 51 Jura publica anteferenda privatis. Public rights are to be preferred before private. ib. Jus accrescendi praefertur oneribus. Right of increase is preferred before charge. 52. Ius accrescendi praefertur ultimae voluntati. The right of Increase is preferred before the last Testament. ib. Ius descendit & non terra. Right, not the Land descendeth. 53. Justum non est, aliquem ante matrimonium natum, mortuum, facere bastardum, qui toto tempore suo pro legitimo habebatur. It is unjust to m●ke him a bastard, when dead; who was accounted legitimate while alive. ib. L Lex est summa ratio. The Law is the perfection of Reason. 54 Licet Tenenti vetus opus reficere, non novum facere. The Tenant may repair, cannot build. 55 Lex non praecipit inutilia. The Law prescribeth not in vain. 56 Lex semper intendit quod convenit rationi. The Intendment of the Law is always consonant to reason. 57 Lex spectat naturae ordinem. The Law regardeth the order of nature. ib. Lex non cogit ad impossibilia. The Law forceth not to things impossible 58. Lex libertati das favorem: The Law favours liberty. 58 Lex citius tolerare vult privatum damnum, quam publicum malum. The Law will sooner tolerate a private injury, than a public inconvenience. 59 Liberata pecunia non liberat efferentem. Money tendered does not discharge the Obligor. 60 Linea recta semper praefertur transversali. A right line is always preferred before a collateral. 61 M Mala Grammatica non vitiat chartam. False Latin doth not destroy a Deed. 61 Maritus & uxor, animae duae sunt in una carne: Man and wife are two souls in one flesh: 62. Malus usus abolendus. An evil usage is to be abolished: 63 Maxim paci contraria sunt vis & injuria. Violence is contradictory to Peace. ib. Meliorem conditionem facere potest minor, deteriorem nequaquam. An Infant may better his condition, cannot make it worse. 64 Minor jurare non potest. An Infant cannot be upon his oath. 65 Modus & conventio vincunt legem. An agreement doth alter the Law. ib. Mulieres ad probationem status bominis admitti non debent. Women are not admitted to prove the condition of a man. 66 Multa transeunt cum universalitate, quae per se non transeunt. Many things pass in a crowd, which do not pass in themselves. ib. N Negatio nihil implicat. A negative implieth nothing. 67 Nemo debet bis puniri pro uno delicte. None ought to be punished twice for the same fault. ib. Nemo potest plus juris in alium transferre quam ipse habet: None can transfer a greater right, than he himself hath. 68 Neminem oportet esse sapientiorem legibus. None ought to aspire to be wiser than the Laws. ib. Nemo tenetur exponere se inf●rtuniis & periculis. None is bound to expose himself to peril. 69 Nemo punitur pro aliens delicto. None suffers for another's fault. ib. Nemo tenetur prodere seipsum. No man is bound to betray himself. 70 Nihil quod est inconveniens val contra rationem, est licitum. Inconveniences are unlawful. ib. Non refert an quis assensum praebeat verbis aut factis. It matters not, whether an assent be by words or deeds. 72 Non afficit con●tus, nisi sequatur effectus. The endeavour signifies nothing, unless the effect followeth. 73. Non est haeres viventis: There is no actual heir of the living predecessor. 74 Non valet pactum de re mea non alienanda. A contract, that I should not alien what is my own, is of no validity. 75 Nullum iniquum in jure est praesumendum: No injustice is presumed in the Law. ib. Nullum tempus occurrit Regi. No time prevaileth against the King. Nullum simile est idem. No like is the same. 76 Nullus commodum capere potest de injuria sua propria. None can take advantage of his own wrong. 77 O Omnis privatio praesupponit habitum. Every privation presupposeth an habit. 78 Omnia quae movent ad mortem sunt Deodanda. All things which cause death are Deodands. 79 Omne testamentum morte consummatum est. The death of the Devisor completes the Will. ib. Omne majus continet in se miuns: Every more containeth in itself a less. ib. Omnia quae sunt uxoris, sunt ipsius viri. That which is the Wive's, is the Husband's. 80 Omnis ratihabitio aequiparatur mandato. Every approve is equivalent to a command. 81 Oportes ut res certa deducatur in judicium. It behoveth, that a thing certain should be brought into judgement. ib. P Pater est quem nuptiae demonstrant Marriage proves the father. 82 Pendente lite nihil innovetur. Writ hanging, nothing must be innovated. ib. Perspicue vera non sunt probanda. Clear truths are not to be proved. 83 Plus peccat author, quam actor. The author is more guilty than the instrument. 84 Possesio fratris de foedo simplici, facit sororein else haeredem. The possession of the brother of a fee simple, m k the sister to be heir. ib. Propinquior excludit propinquum. The nearer akin excludes the more remote. 85 Proximus sum egomet mikis. I love myself best. ib. Q Quando lex aliquid concedit, concedere videtur & id, sine quo res esse non potest. When the Law granteth any thing, 〈◊〉 granteth that, without which the matter could not be. 86 Quando aliquid fieri prohibetur ex directo, prohibetur & per obliquum. A direct prohibition includes an obliqne one. ib. Quando jus Domini Regis & subditi concurrunt, jus Regis praeferri debet. When the right of the King and Subject stands in competition, the Kings is preferred. 87 Quaelibet haereditas naturaliter descendit: Every inheritance does naturally descend. ib. Quae in parts dividi nequeunt solida à singulis praestentur. Things entire must be entirely paid of several. 88 Quaelibet concessio fortissime contra donatorem interpretanda est. Every Grant is to be taken most strongly against the Grantor. ib. Qui non babet in are, luat in corpore. Either the purse pays, or the body suffers. 89. Qui ex damnato ccitu oriuntur, inter liberos non compusentur. Bastards are not accounted amongst sons. ib. Qui haeret in litera, haeret in cortice. He that sticks in the letter, sticks in the outside. ib. Qui adimit medium, dirimit sinem. He that takes away the means, takes away the end. 90 Qui peccat ebrius, luat sobrius. He that offends when he is drunk, shall suffer when he is sober. 91 Qui per alium facit, per seipsum facere videtur. He that doth by another, doth by himself. 91 Qui semel actionem renuntiavit, amplius repetere non potest. A retraxit burrs all actions. ib. Qui sentit commodum, sentire debet & onus. He that beareth the burden, aught to receive the profit. 92 Quod ab initio non valet, traccu temporis non convalescet. That which is invalid in the beginning, tract of time will not make good. ib. Quod prius est tempore, potius est jure. Priority in time prevails in Law. 93 Quod semel meum est, amplius meum esse non potest. That which is once mine, cannot be twice mine. 94 Quod semel placuit in electionibus, umplius displicere non potest: That which is preferred by election, cannot be altered. 95 Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba expressa fienda est. Where there is no ambiguity in the words, there express meaning shall be taken. 69 Quod constat clare, non debet verificari. Of that which is clear, no need of any averment. 97 R Refert, à quo fiat perquisitum. It matters from whom the purchase comes. 98 Remote impedimento, emergit actio. The impediment being removed, the action doth arise. ib. Repellitur à Sacramento infamis. A scandalous person is barred of his oath. 99 Res inter alios acta alteri nocere non debet. A thing acted amongst some, ought not to prejudice others. ib. S Sensus verborum ex causa dicendi accipiendus est. The sense of the words is to be taken from the occasion of the speech. 100 Semper praesumitur pro legitimatione puerorum. Legitimation is always presumed. 101 Si mulier nobilis nupserit ignobili, desinit esse nobilis. If a Noblewoman by marriage, marries under the degrees of Nobility, she loseth her Nobility. ib. Solus Deus facere potest her aedem. God alone can make an heir. ib. Stabitur presumptioni donee probetur in contrarium: The presumption is good, till the contrary be proved. 102 T Testamento cum duo inter se pugnantia reperiuntur, ultimum ratum est: The last taketh place. ib. Traditio loqui facis chartum. Delivery makes the Deed valid. 103 U Vana est potentia, quae nunquam venit in actum: That power is frustraneous, which is never produced into act. ib. Vbi non est principalis, ibi non patest esse accessarius. Where there is no principal, there can be no accessary: 104 Vbi endem ratio, ibi idem jus. The same reason, the same Law. 105 Vbi nullum matrimonium, ibi nulla does. No marriage, no dower. 106 Verba accipienda sunt in mitiori sensu. Words are to be taken in a favourable sense. 107 Verba sunt accipienda cum effectu. Words are to be taken with the effect. ib. Verba aquivoca intelliguntur digniere sensu. Doubtful words are to be taken in the more worthy sense. 108 Verba rolat a ho maxim operantur, per referentiam, ut in esse videantur. Relative words do especially work this by reference as they may seem in being. 109 Verba chartarum fortius accipiuntur contra proferentem. The words of a Deed are most strongly taken against the Grantor. ib. Vnumquodque dissolvitur eo ligamine quo ligatur: Every thing is dissolved by the same it obliges. ib. Vltima voluntas testatoris perimplendae est, secundum veram intentionem: The Will of the Testator is exactly to be performed. 110 Voluntas testatoris ambulatoria est usque ad mortem: The last Will only stands. 111 Volenti non fit injuria. To him that is willing, there is no injury done. ib. Vtile per inutile non vitiatur. That which is profitable is not destroyed by that which is frustrane ous. 112. Vxor non est sui juris, sed sub potestate viri. The Wife has not her own swing, but is under the power of her husband: Law-Principles Reduced to Practice. A. ACcessorium non ducit sed sequitur suum Principale. As if a man letteth Lands for life rendering certain rent, if he grant in Reversion to another, and the Tenant attorn, all the Rent and Service pass by this word Reversion; because the Rent in such case, is incident to the Reversion. But albeit he granteth the Rent to another, 10 H. 7.10. Coke l. 5.21. Ployd. 235. a. the Reversion doth not pass by such grant, Litt. 152. a. 33. H. 6.33. A communi observantia non est recedendum. A common opinion is good authority in Law. Lit. 186. a. Coke: Actio personalis moritur cum persona. If a Lessee for years doth waste, and dyeth; Litt 53. b. Dy. 114. a Writ of waste lieth not against his Executor or Administrator, for waste done in his life-time. Actus Deinemini facit injuriam. As, Cokel. 1.98. a. Coke l. 148. Coke l. 8.72.63. a. l. 5.86. If a Lessee covenant to leave the wood in as good a plight as it was at the time of the Lease; and after, the trees are subverted by tempests, he is discharged of the Covenant. Actus Legis nulli facit injuriam. If Land, out of which Rent-charge is granted, be recovered by an older Title, and thereby the Rent-charge is avoided; yet the Grantee shall have a Writ of Annuity, for that the Rent-charge is avoided by the course of Law. Coke Lit. 148. a. 178. a Coke l. 5.87. Die, 60. Actus non facit reum, nisi mens sit rea. And therefore, in criminal Causes, as Felony, the Act and Wrong of a madman shall not be imputed to him. Lit. Com. 247. b. Doct. & Stud. 148. Actus repugnans non Coke l. 1. potest in esse produci. Corbet's Case. Dy. 153.21. E. 436.4. E. 4.29. Ployd. 255. a. As if a Gift in Tail, upon condition, that if the Donee alien, that then it shall remain to another, it is repugnant; for, after alienation, it cannot remain. An Obligation, solvendum nunquam, the Solvendum is void for the contrariety, and the thing presently due. Actus me invito factus, Lit. Com. 253. b. 14. Ass. pl. 20.21: E. 4.28. Coke l. 2.9. Ployd. 18. a. Coke l. 4.70. Lit. Com. 233. b. non est meus. As, when one is compelled for fear of Imprisonment, to make a Bond, or other Deed; such fear sufficeth to avoid the same. Actori incumbit onus probandi. Bargainee and Bargainee; if the Bargainer intent to avoid the Bargain, by reason of non-inrollment within six months; he must make manifest proof thereof, or else it will be presumed, that it was enrolled. Additio probat minoritatem. When it is said any where, Lit. Com. 139. a. that a man is seized in Fee, it shall be intended Fee-simple, and not Fee-tail; unless there be added to it this addition, Fee-tail. Ad proximum antecedens fiat relatio. Litt. Com. 20. b. Dy. 14. b. 46. b. Coke. l. 2.71. Cromwel's Case. If a man let Land to A. for life, the remainder to B. in Tail, the remainder to C in formâ praedictâ; this remainder is void, for the uncertainty. But if the remainder had been to C. in eadem forma, this had been a good Estate Tail; for, Idem semper proximo antecedenti refertur. Ad quaestionem facti, non respondent Indiecs. Lit. Com. 155. b. Ad quaestionem juris, non respondent juratores. The most usual trial of matters of fact is, by twelve men. And matters in ' Law, the Judges ought to decide. Aestimatio praeteriti delicti post factum nunquam crescit. 11 H. 4.12 If the Gaoler let the Parcussor voluntarily to go at liberty; and, after, the party wounded, dyeth; yet it is no feloninus escape. Affectio nomen imponit operi. Lit. Com. 49. b. If it be agreed between the Disseisor and Disseised, Ployd. 86. 141.21. H. 6.55. 1 E. 4.11. 4 E. 4.23. that the Disseised shall release all his right to the Disseisor upon the Land; and accordingly the Disseised entereth into the Land, and delivereth the Release to the Disseisor upon the Land, This is a good Release; and the Entry of the Disseizee being to this purpose, shall not avoid the Disseizin; for his intent in this case did guide his Entry to a special purpose. Affectus punitur licet non sequatur effectus. 34 H. 6.26.27. Ass. pl. 44.19. R. 2. Brief 726. To give money to one returned on the Jury, though he be not sworn, is Maintenance. Affirmativum negativum implicat. Coke l. 9.56. As W. 2. 2.6.11. Westm. c. 3. 4. Ployd. 206. b. That upon account before Auditors, and Arreages, they have power to send their Bodies to the next Gool of the Lord their King, in those parts. Hence it is, that it is herd, 27: H. 6.8. That the Auditor ought to commit him to the next Gaol, though another County. Agentes & consentientes pari poena plectuntur. 22. Ass. pl. 82. Coke l. 5.80. a. A. maimeth B. by the consent of C. An Appeal lieth against A. and C. and damages equally against both. Aliquis non potest esse Judex in propriâ causa. Litt. Com. 141. a. Coke l. 8.118. Dy. 65.12 H. 8.11 If one will prescribe, that if any Cattle were upon the Demeans of the Manor, doing Damage; that the Lord of the Manor, for the time being, hath used to Distrein them, and the Distress to retain, till Fine made to him for the Damages, at his will; This prescription is void: for so he should be his own Judg: Apices Juris non sunt Jura. Litt. Com. 283. b. 304. b. The Law of England respecteth the effect and substance of the Matter, Coke l. 4.45. b. and not every Nicety of form or Circumstance. Ambiguum placitum interpretari debet contra proferentem. Litt. Com. 3●3. b. The Plea of every man shall be construed strongly against him that pleadeth it; for every man is presumed to make the best of his own case. B Benignae sunt faciendae interpretationes Chartarum, Lit. Com. 183. b. 112. b. propter ignorantiam laicorum, Coke l. 3.25. ut res magis valeat quam pereat. Ployd. 197. b. 213. a. pereat. As, if Lands be given to two men, and to the Heirs of their two bodies begotten; the Donors have a joynt-estate for term of their lives, and yet they have several inheritances, insomuch as they cannot by any possibility, have an heir between them engendered. The Law will, that their Estate and Inheritance be such, as is reasonable, according to the form and effect of the words of the Gift; and this is to the heirs which the one shall beget of his body, by any of his wives; and so of the other. Benignior sensus in verbis ganeralibus sen dubiis est praeferendus. Coke l. 4. fol. 15. ● As, if one charge another, that he hath forsworn himself, it is not Actionable, because it shall be intended, to be forsworn in usual communication. Coke l. 4.15. C. Causa & origo est mate. Coke l. 1. Shelley's case. Dy. 266. b. ria negotii. If a Servant have an intent to kill his Master; and, before execution of his intent, departeth out of his service, and afterwards kills him: it is petty Treason. Caveat emptor. If I sell another man's Horse, Litt. 102. a. and he take him out of the Vndees possession; yet I shall have an action of debt for the money. Certa debet esse intentio & narratio. Ployd. 84: a. 3. E. 4.21. Debt, by one retained in Husbandry, against a Prioress, for his Salary; and declares, that he was retained with her Predecessor, and doth not show by what person; it shall abate. Cessante causa cessat effect us. Coke l. 6.13. Bur●on's case. If the Lord marry the Heir female within the two years, which he hath to tender her Marriage, her Husband and she shall presently Enter. Litt. 78. b. Charta non est nisi vestimentum donationis. Ployd. 291.22. H. 6.10. And therefore if the intent be performed, though not the words of the Deed, it sufficeth: Communis error facit jus. Doct. & Stud. 46. Ployd. 2. Manxel's case. As, an Acquittance by the Mayor alone, where there are many precedents for it, is good. Consensus, non concubitus, facit Matrimonium. Coke l. 5 fol. 22. Litt. 33. a. As, in Ambrosia Gorges' case: she married Francis Gorge, which Francis died when Ambrosia was often years of age. It was resolved, that the Queen, notwithstanding the said marriage, should have the Wardship of the said Ambrosia: For, it was not a complete Marriage, because to every Marriage there ought to be a Consent; and, Consentire non possunt, ante annos nubiles. Conditio Beneficialis quae statum construit, Cokel. 8.90. b. benigué, secundum verborum intentionem, Dy. 45. p. 1. 7. E. 4.13. est interpretanda; Odiosa tamen, quae statum destruit, strictè secundum verborum proprietatem, est accipienda. A Lease to one upon condition, that the Lessee shall not alien to A. B. and he alien to R. B. the condition is not broken; for every Condition must be taken strictly. Consensus tollit errorem. If a Venire facias be awarded to the Coroners, Litt. 37. a. 126. a. where it ought to be to the Sheriff; Coke l. 5. fol. 40. or the Visno come out of a wrong place; yet, if it be per assensum partium, and so entered of Record, it shall stand. Consuetudo debet esse certa. 13. E. 2. Fit a. Dum fuit infra aetatem, 3. In Trespass for Trees carried away, the Defendant pleaded a Custom, that that Tenant of the Manor, that first came to the place where, etc. shall have the Windfalls there: Void, for the uncertainty. Constructio juris nemini facit injuriam. Litt. 18.3. a. b. It is a Rule, that whensoever the words of a Deed, Coke l. 3.74. or of the Parties without Deed▪ Ployd. 77. a. shall have a double intendment, and the one standeth with Law, and Right, and the other not; that that standeth with Law shall be taken. Consuetudo semel reprobata, non potest amplius introduci. Litt. 114. b As, if a Copyhold be Leased of the Lord of the Manor, for Life, or Years, according to the course of the Common Law, it shall never be after demised by custom, as a Copyhold. For, as continuance maketh a custom, so discontinuance destroyeth it. But a Title gained by prescription cannot be lost by interruption of Possession, but by interruption in the Right. Consuetudo tollit communem legem. Litt. 33. b. 158. b. Coke. l. 4.21. Ployd. 36. b. vid. Stat. de consuetud. Kanciae. By the custom of Gavelkind, the Wife shall be endowed of the Moiety, so long as she keeps herself sole, and without child; which she cannot wave, and take her Thirds for her life. Contraria allegans non est Audiendus. 21. H. 7.21. As, in pleading Guilty to the breaking of the House, and Not-guilty to the Walls, in Trespass, de domo fractâ & muris ejusdem domi; It is not good. Cui licet quod majus, Coke l. 9.23. a. l. 9.48. b. non debet quod minus est non licere. Where Copyhold Lands may, by custom of the Manor, be granted to any one in Fee-simple; there, a Grant to one, and the heirs of his body, is within the Custom. Cuique naturale est, id quod procreavit tueri. Ployd. 304. a. 11. H. 4.23.33 H. 6.55.12 H. 4.16. And therefore is given to the Father, the education and custody of his Son; and, if any take him from him, he shall have a Writ, Quare filium & haeredem suum rapuit. Cuilibet, in arte sua perito, esi credendum. Lit. 125. a. Coke l. 4.29. a. l. 7.19. a. In Sentence given in Causes in the Spiritual Court, the Judges of the Common Law, though it be against the Reason of the Law, shall give faith and credence to their Proceed. Cujus est dare, ejus est disponere. Coke l. 2▪ fol. 70. That a Proviso make a Condition, Cromwel's case. three thing are required; First, That the Proviso do not depend upon another Sentence, nor participate thereof; but stand originally of itself. Secondly, That the Proviso be the word of the Bargainor, Foeffor, Donor, etc. Thirdly, That it be compulsory to enforce the Bargainee, Foeffee, Donee, Lessee, etc. to do an Act, and where these concur, it is a Condition, in what place soever it be placed. For, Cujus est dare, ejus est disponere: D. Debile fundamentum fallit Coke l. 6.14. a. opus. 20. Ass. pl. 7.49. E. 3.8.3. E. 3.74. When an Estate, to which a Warranty is annexed, is defeated; the Warranty also is defeated. Derivativa potestas non potest esse major primitiuâ. 28 Ass. pl. 4. The Bailiff of a Disseisor shall not say, that the Plaintiff ever had any thing in the Land; for the Master himself shall not have that plea, because he is not Tenant of the Free-shold: Destinata tantum pro factis non habentur. As if I square a Tree to make a Beam of a House, and die before it be laid in the building; it shall go to the Executors. De fide & officio Judicis non recipitur quaestio, F. N. B. f. 21. sed de scientia, 3 H. 6.3.8 H. 6.23.5. E. 4.3. F.N.B. 23. sive error sit Juris, sive Facti. As, If I assign for Error, that whereas the Verdict passed for me, the Court received it contrary, and so gave Judgement against me; This shall not be received. Dies Dominicus non est Juridicus. Die: 168. A Scire Facias out of the Common-Bench, Error assigned, because the Test of it was upon a Sunday; and adjudged Error, because no Law-day. Divinatio non interpretatio est, Litt. quae omnino recedit a litera. As, If I have a Fee farm Rent of 10 s. issuing out of White-Acre; and, reciting the same Reservation, grant to J. S. a Rent of 5 s. to be received out of the aforesaid Rent, and out of all my Lands and Tenements in Dale, with clause of Distress; it is void, because it is against the words; and the copulation of the words show, the taking of them in an other sense. Dilationes sunt in lege odiosae. Ployd. 75. b. Though Warranties are favoured in Law, F.N.B. 178 W. 2. c. 25. Ployd. 98. a. 90.8.8 H. 7.8. yet none shall vouch any one in Assize, if he be not present. And Dilatory Pleas must be good to every common intent. Ployd. Ryder's case. Dispositio de interesse futuro, est inutilis. 19 H. 6.62. Dy. 221. pl. 18.90. pl. 8. If I devise the Manor of D. by special name, of which, at that time, I am not seized; and, after, I purchase it; if I make not some new publication of my Will, my Devise is void. Dominus non maritabit minorem in custodia sua, Lit. Com. 79. b. nisi semel. If the Guardian, in Chivaky, marry the Ward within the age of 14 years; and if afterwards, at the age of 14 years, he disagree to the marriage, the Guardian shall not make tender of a second marriage. Dormit aliquando jus, Lit. Com. 279. b. moritur nunquam. For, of such an high estimation is Right, in the eye of the Law, as the Law preserveth it from death and destruction: When it is said, that a Release of Right doth in some cases, inure by way of extinguishment; it is to be understood, in respect of him that makes the Release. Doti mulieris pareatur quia proemium pudoris est. Lit. Com. 31. a. Tenant in Dower shall not be distreined for the debt due to the King, F. N. B. 150. by the Husband in his life-time, in the Lands which she had in Dower. Does de dote peti non debet. Lit. Com. 31. a. The Father dyeth, and the Wife of the Grandfather is endowed of one Acre, and dyeth, The Wife of the Father shall be endowed only of the two Acres residue. Dona clandestina semper sunt suspiciosa. Coke: l. 3.81. l. b. 72. Burrel's case. The Assignment of the Lease was taken to be fraudulent; because delivered in a secret manner to a person of mean quality. E Ecclesia fungitur vice minoris; Litt. Com. 141. a. 103. a. meliorem potest facere conditionem, deteriorem nequaquam. A person may have an action of waste, and it shall be said, Ad exhaere dationem ecclesiae. So if he make a lease for Life, he shall have a Consimili caesu, during the life of the Lessee; but a person cannot make a discontinuance; but if he do and die, his successor may enter, notwithstanding the discontinuance. Executio juris nulli facit injuriam. Litt. Com. 161. a. Therefore a man shall not be punished for suing of Writs in the King's Court, Hob. 266. 1. Dy. 285. Pl. 37. be it of right or wrong. Expressio eorum quae tacite insunt nihil operatur. Litt. Com. 299. a. 30 Ass. pl. 8.1.7. E. 3.7. Coke l. 4.73. As if a man seized of Land, letteth the same by Deed indented for years, rendering a certain rent, with clause of distress; this clause is vain, for the Lessor may distrain of Common right for the rent behind. Ex nudo pacto non oritur actio. Litt. Com. 47. b. And therefore, in an action of debt for rent, it is a good plea for the Lessee to say, that the Lessor had nothing in the Tenement at the time of the Lease. Expressum facit cessare tacitum. Litt. Com. 210 a. As if the Condition upon a mortgage be to pay to the Mortgagee or his heirs, Coke Rep. Altham's case. the money, etc. and before the day of payment, Bedel's case. the Mortgagee dieth, the Feoffor cannot pay the money to the Executors of the Mortgagee. Extra jurisdictionem jus dicenti, 22 E. 4.33 Dy. 60. Pl. 26.14. H. 8.16. non paretur impune. When the proceed are coram non judice, an action lies against them that execute the process. Exteriora acta indicant interiora animi secreta. Litt. Com. 100 a. When Licence is given to any one by the Law, Coke l. 8.146. l. 9.59. and he doth amiss, be shall be a trespasser from the beginning. Ex verbo generali aliquid excipitur. Litt. Com. 47. a. Ployd. 361. a. An exception is part of the thing granted, and in esse, (as exceptis, salvo, praeter,) and out of a general a part may be excepted. F Facinus quos inquinat, aequat. 40. Ass. Pl. 25. A servant procureth another to kill his Master; this is not petty Treason in the servant, because but felony in the other. Festina●io justitiae noverca infortunii. Nou. Int. 285. b. And therefore, Heb. 133. Litt. 304. the Judges always in cases of Demurrers, have a time to consider of the matter in doubt, by a Curia advisare vult. And when judgement is given, it is, Et super hoc visis praemissis, & per Justiciarios hic plenius intellectis, (and then, Ideo consideratum est.) As in the judgement between the King and the Prior of Worcester, concerning an Appropriation. Et examinatis, & intellectis, recordo et processu coram toto Concilio, etc. Finis rei attendendus. Coke l. 5. 87. The end and fruit of a Suit, is satisfaction: 14 H. 7.8.33. H. 6.47. but execution of the body is no satisfaction, but a gage for the debt. And therefore, after his death he shall resort to another execution. Filiatio non potest probari. Litt. Com. 126. a. A man leaveth his wise enseint with a child: issue shall not be taken that she was not enseint by her Husband on the day of his death; for, Filiatio non potest probari. Firmior est operatio legis quam dispositio hominis. Litt. Com. 224. a. A Lease upon condition, Coke l. 10.67. b. that if the Lessee make any waste, 37 H. 6.16. a reentry; if a stranger doth waste, Dy. 281. Doct. & stud. l. 2. c. 4. he may re-enter: Yet if the Tenant had been bound in an obligation that he shall do no waste, he shall not forfeit his Bond by the waste of a stranger. Frustra sit per plura, quod fieri potest per pauciora. Coke l. 6.167. a. Ployd. 191. b. 9 H. 7.24. If the King by his Patent, reciting the estate tail, grant the reversion, and further grant the Lands in possession, those several Grants in one Patent are as strong in Law, as if the King by one Patent had recited the estate tail, and granted the reversion, and by another patent the Lands in possession. Furiosus furore suo punitur. Litt. Come 247. b. Ployd. 19 a. Litt. 124. b. And therefore if a Mad man commit Felony, he shall not die for it: for though he hath broken the words of the Law, yet he hath not broken the Law. G Generale nil certum implicat. Coke l. 2. fol. 33. Doddington. lib. 8.98. a. Baspoles case. If a man be bound to be Non suited in all actions that he hath against another in the common Bench, he may say that he hath no action therein: otherwise, if the condition be particular, viz. that he shall be nonsuited in a Formedon. So in arbitrement when the submission is general, an award of one cause, though there were more between them, is good. Generalibus semper specialia insunt. Ployd. 467. b. 68 a. As the Stat. of Gloucester giveth an action of waist against him which holdeth for years, which is in the plural number, yet it may be taken for him that holdeth for a year, or half a year. Generalis clausula ad expressa non refertur. Coke l. 4. fol. 80. Noke's Case. An Assignee of a lease, shall have a Writ of Covenant upon the words, Demise and Grant: yet if there be an express Covenant that the Lessee shall enjoy it without eviction of the lessor, or any claiming under him, this express covenant qualifieth the generality of the covenant in Law, and restraineth it by mutual consent of both parties, that it shall not extend to the Assignee. Generalis clausula non porrig itur ad ea, Coke l. 4.131. Dy. 56.6. quae antea sunt spicialiter comprehensa. When a deed at first contains special words, and then concludeth in words general, both shall stand: As Lands given to one and the heirs of his body, habendum to him and his heirs, he hath an estate tail, and a fee simple expectant. Generalia sunt praeponenda sin gularibus. F●●z Nat. B ev. 2. a. As in a Writ or Plaint, the general shall be put in demand before the special, as Message before lands, Lands before Meadow, Mendow before Pasture, Pasture before Wood, Wood before Jancary, etc. H. Haeres est pars antecessoris. Lit. Com. 22. b. Coke l. 7.12.10 H. 7.8. Dy. 868. Keep. 151. And therefore if Lands be given to a man and his heirs, all his heirs are so totally in him as he may give the Lands to whom he will. Haeres legitimus, Coke l. 7.44. a. Litt. 7.6. est quem nuptiae demonstrant. One who is engendered in a vowtry during the coverture, is a Mulier by the temporal and common Law. Haeres non tenetur ad debita antecessoris reddenda, Britton fol. 65. b. Litt. Com. 209. a. 383. b. nisi per antecessorem ad hoc fuerit obligatus; praeterquam debita regis tantum. If the heir be not named in the obligation, he shall not be bound by the deed of his Ancestor, except to the King. Hermaphrodita tam masculo quam faeminae, Litt. Com. 8. a. g. b. comparatur secundum praevalescentiam sexus incalescentis. An Hermaphrodite shall be heir either as male or female, according to that kind of the sex which doth prevail; and accordingly it ought to be baptised. I Id certum est, Litt. Com. 45. b. 43. b. 96. a. Ployd. 273. b. Dy. 91. b. 44. a. quod certum reddi potest. Albeit, there appear no certainty of years in a lease, yet if by reference to a certainty it may be made certain, it sufficeth. As a lease to A. 11 H. 11. 7.17. for so many years as B. shall name: when B. hath named the years, it is a good lease for so many. Idem semper proximo antecedenti refertur. Litt. Com. 20. b. As if a man let Lands to A. for life, the remainder to B. in tail, the remainder to C. in forma praedicta, this remainder is void for the incertainty: But if it had been the remainder to C. in eadem forma, this had been a good estate-tail. Ignorantia juris non excusat. Doct. & St. 2. c. 46. Coke l. 1. fol. 177. Mildmay's Case. If a statute penal be made, and it is enacted that the statute shall be proclaimed by such a day in every Shire, and it is not proclaimed before the day: yet if any offend against this statute, he shall not be excused for the not proclaiming of it; for he is bound to take notice of the Law at his peril. Ignorantia facti excusat. Coke l. 2. fol. 3. b. Mauser. Doct. & Stud. l. 2. c. 47. 31 E. 3.3. As if an illiterate man be bound to seal a Deed, he is not tied to do it, if there be not some present to read it, if required; or, if it be read amiss, he may plead non est factum. Ignoratis terminis, Coke Lit. 177. a. 2. a. 68 a. ignoratur & ars. Every art hath its vocabula artis, which being not conceived, that art cannot be comprehended. Therefore the significations of words in all arts and sciences are necessary, which Master Littleton and Coke upon him ordinarily observe. Impotentia excusat legem. Coke Litt. 29. a. 258. b. 263. b. Coke Rep. Laughter case. Coke l. 98. A man seized of an advowson, or rend in fee, hath issue a daughter who is married, and hath issue, and dies seized; the wife before the rent became due, or the Church became void, dieth; she had but a seizin in Law, and yet he shall be tenant by the courtesy, because he could by no industry attain to any other seizing. Idem non potest esse agens & patience. 14 H. 8.31. 13 H. 8 32. 8 H. 6.29. 9 L. 4.32. Dye. 188. And therefore a man cannot present himself to a Benefice. No man can summon himself. And therefore if a Sheriff suffer a common recovery, it is error, because he cannot summon himself. Impersonalitas non concludit nec ligat. Coke Lit. 352. b. And therefore every Estoppell ought to be a precise affirmation. Imperitia maxima est maechanicorum poena. 7 E. 3.65. b. Coke l. 11.57. a. Therefore if he that taketh upon him to work be unskilful and ignorant, it is sufficient punishment for him: for if any take upon him to work and doth it amiss, an action of the case lieth against him: Inclusio unius est exclusio alterius. Lit. Com. 210. a Coke l. 11.50. A mortgage with the money to be paid to the Morgagee and his heirs, Ployden. 106. it shall not be paid to his Executors. Infinitum in jure repro batur. Coke l. 6.45. l. 7.456. l. 8.16. b. 3 H. 4.17.11. H. 4.9.9 E. 4.50, 51. As if a man have a debt by a simple contract, and taketh an obligation for the same debt, or any part of it, the contract is determined: So of a Judgement upon an obligation. In fictione legis semper est aequitas. Litt. Com: 150. a. Coke l. 11.46. Liford's case. As if one seized in Fee, take Wife, and make a Feoffment in Fee, the Feoffee grants a Rent-charge of 10 l. to the Feoffer and his Wife, and the heirs of the Husband; the Husband dieth, the Wife recovereth the moiety for her Dower by the Custom; the Rent shall be apportioned, and she may distrain for five pound, which is the moiety: for albeit the Dower by fiction of Law be above the Rent, yet when she recovereth Dower, she shall not have the entire Rent but of the residue: for fiction of Law shall never work a wrong to a third person. In aequali jure, melior est conditio possidentis. 9 H. 5.15. Coke l. 4.90. a. l. 2.68. Perk. fol. 6. If a man purchase several Lands at one time, which are holden of several Lords by Knight's service, and dieth, the Lord who first seizeth the Ward shall have him. Injuria illata in corpus non potest remitti. I itt. Com. 1 27. a. 1 61. b. Vita & membra sunt in manu regis. 19 Ed. 1. rotul. 36: And therefore if a Lord Mayheme his villain, the King shall punish him for maiming his Subjects, by Fine, Ransom, and imprisonment. In ambiguis casibus semper praesumitur pro rege. 22. Ass. pl. 19 Stamf. fol 10. And the reason that Treasure Trove belongs to the King, is, Quia dominus rei non apparet; & ideo cujus sit incertum est, and therefore presumed it is the Kings. In disjuctivis sufficit alterum esse verum. Coke l. 10.59. a. Bishop of Sarum's case: Whereas the Avowant did avow that the Office supravisoris omnium maneriorum suorum, to such Person or Persons as it pleased the Bishop, and the Defendant pleaded in the negative, that the Office had not been but for the life of one; that exception was not allowed, because he did not say, that the said Office had been granted to divers, but only to such person or persons; and in disjunctives, it is sufficient that one of them be true. In jure, non remota sed proxima causa spectatur. 2 H. 4.3. 26 H. 8.2. If a person make a Lease and be deprived, or resigneth, the Successors shall avoid the Lease, for the Law regardeth not the cause of Deprivation or Resignation, which is the Act of the party, but the act of the Ordinary in the admission of the new Incumbent. In maleficiis plerumque spectatur exitus, 1 H. 3.144. Coke. l. 2.84. non voluntas. If I hurt another only with an intention to beat him, and he dieth, it is Felony. So the ancient Law is altered, wherein it was a Rule of Law, In maleficiis spectatur voluntas, & non exitus, as Bracton hath it, vid. 1. E. 3. In omnibus fere, minori aetati succurritur. In a cessavit against an infant, who hath the Tenancy by descent, he shall have his age, though it be upon his own Cesser, because he cannot tell what arrearages to tender before the Judgement. Impossibile est unum corpus in duobus locis esse simul. Pop. Rep. 58. As if a man make a lease of two Barns, rendering Rend, and for default of payment a reentry. If the Tenant be at one of the Barns to pay the Rent, and the Lessor at the other to demand the Rent, and there is no body there to pay it, yet the Lessor cannot enter for the condition broken; because there was no default of the Tenant, he being at one Barn; for it is not possible for him to be in two places together. In praesentia majoris, Ployd. 498. a. cessat potentia minoris. Appropriations made by the Pope, Patron, and King, were good before Stat. 25. H. 8. without the Bishop; because in the power of the greater, the lesser ceaseth, the Pope being supreme Ordinary. In quo quis deliquit, Coke Litt. 233. b. Groke Rep. fol. 183. Litt. 233. b. in eo de jure puniendus est. If the Keeper of the Park pull down the Lodge or any House within the Park, for putting of Hay into it, for feeding of the Deer, or such like; it is a Forfeiture, and the reason why the Office is forfeited, is, that he may be punished in that wherein he offended. In omnibus obligationibus quibns dies non ponitur, 20 E. 4.8. 21 E. 4.8. praesenti die debetur. Et nulla temporis d signatio praesens denotat. When one is bound in Twenty Pounds, to pay Ten Pound, and no day of payment is limited, the lesser sum is due presently to be rendered. Judicis est judicare secundum allegata & probata. Dy. fol. 12. pl. 50. Ployd. 83.6, 7. H. 4.31. In a Formedon, if the demandant count upon a Foeffment in Fee; and not in Tail, if the Tenant demur upon it, the Court cannot maintain the Declaration to be true, because the Judge is to judge according to what is alleged. Judicium pro veritate accipitur. And therefore, common recoveries suffered by the Tenant in Fee of the Lands of his Lessee for Life, could not be avoided or satisfied till the Stat. 14. Eliz. c. 8. And in Attaint, the first Judgement is so favoured, that the Plaintiff shall have no other evidence but what he had at the first Trial; but the Juty, as many as they will, to confirm the first Verdict. Judicium à non suo judice datum, Coke l. 10.76. b. nullius est momenti. As if the Sheriff, who is prohibited by the Law to hold his Turn within a Month after Michaelmas, holdeth his Turn after the Month, and take an Indictment of Robbery at that Turn, and the Indictment is removed by Certiorari into the King's Bench; by advice of all the Justices, the party was discharged, because not within the time limited. Junior non potest dotem promereri, Coke Litt. 33. a. nec obstavit mulieri, minor atas viri. If the Woman be not of the age of nine years, she shall not have Dower: but if she be of that age, it matters not what age the husband be of, though but four or five. Jura naturalia sunt immutabilia. Coke l. 7.15. b. Bracton, l. 9 c. 23.33 H. 6.55. As if a man have a Ward by reason of a Seignory, and is outlawed, he forfeiteth his Wardship to the King: but if he have the Wardship of his Son or Daughter which is heir apparent, and is outlawed, he doth not forfeit this Wardship; for Nature hath annexed it to the person of the Father. Ipsae etenim leges cupiunt ut jure regantur. Lit. Com. 10. a. 271. a. Coke l. 5.100. If partition be made between partners of Land in Fee simple, and for owelty of partition, one granteth a Rent to the other generally, the grantee shall have a Fee simple without the word [heirs] because the grantor hath a Fee simple, in consideration whereof he granteth the Rent. Jura publica anteferenda privatis; &, Litt. Com. 130. a. jura publica ex privatis promiscue decidi non debent And therefore in protection either for being in the King's service, Mirror. c. 3. Sect. Britton. 281. as the King's Soldier, or of his Council as the King's Ambassador, pro negotiis regni, both these things for the public good of the realm private men's actions, and suit must be suspended for a convenient time. Jus accrescendi praefertur oneribus. Litt. come. 185. a. 453.3.13. As if one joint-tenant grant a common pasture, or of Turbary, Estovers, or Corody etc. out of his part; or a way over the Land; this shall not bind the survivor. Jas accrescendi praefertur ultimae voluntati If Litt. Com. 185. b. two joint-tenants be of Land in fee simple, and one of them deviseth that which to him belongeth by his testament, and dyeth, this devise is void, because the Survivor claimeth by the first Feoffor. Jus descendit & non terra. Litt. come. 345. a. b. As when an estate is turned to a right by disseizin, discontinuance, etc. but in case of a title, the Land descends. Justum non est aliquem ante matrimonium natum, Coke. l. 8.101.14 E. 2. bastard. 26. mortuum, facere bastardum qui toto tempore suo pro legitimo habebatur. Doc. & Stud. If bastard Eigne after the father's death enter into the land and occupy it during his life without interruption of the mulier puisne, and die seized, the mulier is barred for ever. L. Lex est summa ratio. Litt. Com. 97. b. The common Law is nothing else but Reason; which is to be understood of an artificial perfection of reason gotten by long study, observation, and experience, and not of every man's natural reason, for nemo nascitur artifex. This legal reason is ratio summa. And therefore if all the reason that is dispersed into so many several heads were united into one, yet could he not make such a law as the Law of England is; because, by succession of many ages, it hath been refined by an infinite number of grave and learned men. Licet Tenenti vetus opus reficere, 44 E. 3.21 44.11. H. 4.32. non novum facere. A Tenant may cut down Trees for the amend meant of houses, or reparation of them. But if the necessity of a new house comes in Question, as to build a Stable; or, if no house be built upon the Land at the time of the lease, the Lessee may not cut down Trees; to make a house. Loquendum ut vulgus, Coke l. 4.46. a. Ployd. 169. Coke l. 4.64. b. l. 7.11. Words shall be taken according to the vulgar and ordinary construction as though a person attainted be a person convict and more. And therefore it is the office of Judges to take and expound the words, which the common people use to express their intent by, according to their intent, and not according to the true definition. Lex non praecipit inutilia. Litt. Com. 126.127.79, a. 197. a. A villain shall not by the Law have any appeal against his Lord, for in appeal of Mayhem a man shall recover but his damages; and if the Villain in that case recover damages against his Lord, and from the villain, and so the recovery void. Lex semper intend't quod convenit rationi. Litt. come. 78. b. 182. a. The Guardian in Chivalry shall have the custody of the heir, and his land until become to his full age of one and twenty years: because, by intendment of Law the heir is not able to do Knight's service before that age, which is grounded upon apparent reason. Lex spectat natura ordinem. Litt. come. 92 a 97. Ployd. 540. If tenant in socage hold of the Lord by Fealty, and a rose, the Lord shall have for his relief a Rose, etc. or other flowers: the tenant dyeth in winter, the Lord cannot distrain for his relief, until the time that roses by course of the year may have their growth. Lex non cogit ad impossibilia. Litt. Com. 231. b. If a deed remain in one Court, it may be pleaded in another Court without sueing forth. Lex libertati dat favorem. Litt. Com. 124. b. 139. a. If a villain sue an action of trespass or any other action against his Lord, in one County; and the Lord saith, that he shall not be answered: because, he is his villain regardant to his Manor in another County; and the Plaintiff saith, that he is free, and of a free estate, and not a villain, this shall be tried in the County where the Plaintiff hath conceived his action; and not in the County where the Manor is, and this is in favour of Liberty. Lex citiùs tolerare vult privatum damnum, Litt. Com. 152. b. quàm publicum malum. If there be Lord, Mesne, and Tenant; and the Tenant holdeth of the Mesne by service of five shillings; and the Mesne holdeth over by service of twelve pence: If the Lord Paramont purchase the tenancy, in see, than the service of the mesnalty is extinct, because when the Lord Paramont hath the Tenancy, he holdeth of his Lord next Paramont to him; and if he should hold this of him which was Mesne, than he should hold the same tenancy immediately of divers Lords, by divers services, which should be inconvenient; and the Law will sooner suffer a mischief, than an inconvenience, and therefore the Signiory of the mesualty is extinct. Liberata pecunia non liberat offerentem. Litt. come. 207. a. If an obligation of one hundred pounds be made with condition for the payment of fifty pounds at a day, the Obligor tenders the money, and the obligee refuseth the same: yet in action of debt upon the Obligation, if the Defendant plead the tender and refusal, he must also plead that he is yet ready to pay the money, tender the same in Court. Line a recta semper praefertur transversali. Litt. come. 10. b. For descents, it is a Maxim in Law, Lineal descent which is conveyed downward in a right line, (as from the Grandfather to the Father, from the Father to the Son,) shall inherit before the heir by collateral descent, which is derived from the side of the lineal as Grandfather's brother, etc. M. Mala Grammatica non vitiat chartam. Litt. 146. b. Coke. l. 9 48.4 H. 6.16 As Nec aliquid in eo specificatum non aliter se extendat, etc. Here is a double negative, Nec & non, which in Grammatical construction amounteth to an affirmative; for Negatio destruit negationem & ambo faciunt affirmativum; yet the Law that principally respecteth substance, doth judge the proviso to be a negative, according to the intent of the parties, and not according to the Grammatical construction, to the end the proviso may take effect. Maritus & uxor animae duae sunt, Litt. Com. 6. b. 41. a. 112. a. in una carne. Therefore a Wife cannot be produced either against or for her husband; for it might be a cause of implacable discord, and dissension, betwixt the Husband and Wife, and a mean of great inconvenience. Malus usus abolendus. Litt. Com. 141. a. If a man will presume that if any were upon the demeans of the Manor there doing damage, that the Lord of the Manor for the time being hath used to distrain them, and the distress to retain till fine were made to him for the damages at his will; this prescription is void, because it is against reason. And the rule is, In consuetudinibus non diuturnitas temporis, sed soliditas rationis est consideranda. Maxim paeci contraria sunt vis & injuria. Litt. Com. 161. b. And therefore Britton saith well, speaking in the person of the King. Nous volous quae touts gents pluis useant judgment quae force. And therefore is it, Ib. 254. a. that in Rent-service, Charge and Sack; Forestallment, (which is an encountering or menacing the Lord in the way, that he dare not come on the Land to distrain, or demand the rent,) is a disseizin. And in such case claim of the Land shall avoid a descent. Meliorem conditionem facere potest minor, Ib. 337. b. deteriorom nequaquem. If the infant make a feoffment; he may enter either within age, or at full age: likewise after his death his heir may enter: Minor jurare non potest. Litt. Com. 172. b. Bracton. 5. l. fol. 340. b. 46 E. 3.10.9.3.424. And therefore he cannot be of an Inquest. An Infant cannot make his Law of Non summons; therefore the default shall not prejudice him. An Infant cannot upon his oath, make his Law in action of debt. 26. E. 3.63. Dy. 7.104. 11 H. 6.40. 1. H. 7.15. Modus & Conventio vinciunt legem. Litt. come. 41. b. 〈◊〉 166. a. Bracton. l. 4. fol. 222. 21 H. 6.46: 10 B. 4.13. To every Tenant for life, the Law, as incident to his Estate, without provision of the party, giveth him three kinds of Estovers; that is, Housebote, which is twofold, viz. Estoverium aedificandi, & ardendi. Ploughbote, that is, Estoverium arandi. And lastly, Haybote, which is, Estoverium claudendi. And these Estovers must be reasonable. And these the Lessee may take upon the Land demised, without any assignment; unless he be restrained by special Covenant: for an Agreement doth alter the Law. Mulieres ad probationem status hominis, Lit. Com. 6. b. Fleta. l. 2. c. 44.23. E. 1. Villain 36, 37. 29 E. 1. Ib. 32. Lit. Com. 142. a. admitti non debent. And therefore are women, by Law, wholly excluded, to prove a man to be a villain. Multa transeunt cum universalitate, quae per se non transeunt. If a man hath a Rentseck of the part of his mother, and the Tenant of the Land grant a Distress to him and his Heirs, and the Grantee dieth; the Distress shall go with the Rent to the heir of the part of the mother, as incident and appurtenant to the Rent; for now is the Rentseck become a Rent-charge. N Negationi nihil implicat. 11 H. 7.23. 21 H. 6.41. 10. E. 3.10. If a Tenant wage his Law of non sum; this doth not imply that he was Tenant. Nemo debet bis puniri pro uno delicto. Coke l. 4. fol. 43. Hudson's case. In Appeal of Mayhem, the Defendant pleaded that before, etc. and the Plaintiff recovered in Trespass, for the same Ba ery and Wounding, 200 l. and satissaction acknowledged; and the Bar was adjudged good. Litt. Com. 309. b. Coke. l. 5. fol. III. Mallarids case. Perk. 15. Ployd. 432. b. Nemo potest plus juris in alium transserre quam ipse habet. If the Conusee of a Fine, before any Attournment by Deed Indented and Enrolled, bargaineth and selleth the Signiory to another; the Bargainee shall not distrain, because the Bargainor could not distrain. Neminem oportet esse sapientiorem legibus. Litt. Com. 97. b. The Law is the perfection of Reason. And if all the Reason that is dispersed into so many several Heads, were united into one, yet could he not make such a Law as the Law of England is; because by so many succession of Ages, it hath been refined by an infinite number of grave and learned men; so that it is ratio summa. Litt. Com. 162. a. 49 E. 3.14.49. Ass. 5.29. Ass. 49. Neme tenetur exponere se infortuniis & periculis: And therefore forestalment, with a menace of life and members, is a disseizin of rent-service, ●arge, and seck. Liet: come. 145. b. Nemo punitur pro alie●● delicto. A man cannot claim propriety by his Bailiff or Sarjeant, in Replevin; and the reason is, for that if the claim fall out to be false, he shall be fined for his contempt; which the Lord cannot be, [unless he make claim himself; for he shall not be punished for his Bailiff's offence. Ployd. 32. b. 39 H. 6.22. Nem● tenetup prodere seipsum. As if a man grant to one an Annuity, pro consilie impendende, the Grantee shall have a Writ of Annuity, without showing, that he hath given him counsel; for the showing of it is not for his benefit; and denial of counsel goeth in defeizance of the Annuity: which ought to be shown by the Defendant, because for his benefit. Nihil quod est inconueniens vel contra rationem, Lit. Com. 97. b. est licitum. Tenant in Frank marriage, shall do fealty to his Lord, before the fourth degree, be past; for it should be inconvenient, and against reason, that a man shall be Tenant of an estate of inheritance to another, and the Lord should not have any manner of service; for, if he does not fealty, he shall not do any manner of services to his Lord: Litt. Com. 188. a Ployd. 419. Bracebridge's case Nihil de re accrescit ei, qui nihil in re quando jus accresceret habet. If two joint Tenants be of a Rent, and one of them disseise the Tenant of the Land; this is a severance of the Jointure for a time, for the moiety of the Rent is suspended by unity of possession, and therefore cannot stand in Jointure with the other moiety in possession. And here, if one of them die, there shall be no survi,vour. For there shall never be any survivor, unless the thing be in jointure at the instant of the death of him that first dieth. Non refert an quis assensum praebeat verbis au rebus & factis. 44 E. 3. fines. 37.37 H. 6.17. 7. E. 3.50. If the Baron accept the grant of a Reversion, that amounteth to an Attornment. 44. E. 3.37. He which hath interest termini, cannot, by express words, surrender it, but the acceptance of a new Lease shall drown it. Non valet impedimentum quod de jure non sortitur effectum; Coke l. 4.31. Frenches ease. Litt. 361. h. &, Quod contralegem sit, pro infecto habotur. If Copyhold Lands be forfeited, or escheat, and the Lord Lease them for years or life, or any other estate by Deed, or without Deed; this Land can never again be granted by Copy, for the Custom is destroyed. For, during these Estates, the Land was not demisable by Copy. But if the interruption be tortuous, as by Disseizin and Descent, false Verdict, or erroneous Judgement; there it may be granted again by Copy. Non afficit conatus, nisi Coke l. 6.4 Mildmay's case. sequatur effectus. A gift in tail upon condition, that his Estate shall cease, if he go about to alien, etc. This condition is void; for endeavour of a breach is not a breach. Non est baeres viventis. Litt. Com. 22. b. 217. a. If a man, by Deed, make a Lease for years, the remainder to the right heirs of J. S. and the Lessor make livery to the Lessee, secundum formam Chartae; this Livery is void, because during the life of J. S. his right heir cannot take; and in that case the shall not remain in the Lessor, and expect the death of J. S. during the term. For, albeit J. S. die during the term, yet the remainder is void, because a Livery of seizin cannot expect. Non valet pactum de re meanon alienanda. Litt. Com. 223. a. As a Feoffment upon condition, that the Feoffee shall not alien, the condition is void. Nullum iniquum in jure praesumendum. Coke l. 4. fol. 70. Hynde's case. Records are so high and sacred, that they import in themselves inviolable verity, which if any gainsay, they shall be tried only by themselves, and not by the Country. And if averment against a Record should be permitted, than the effect and validity of the Record should be tried by the Country, which is against the Rule of Law, Nullum iniquum est in jure praesumendum. Nullum tempus occurrit Regi. Litt. Com. 118. a. 90. b. 119. a. Ployd. 156.159. 9 H. 6.21.12 H. 7.12 For, if the villain of the King purchase any lands, and alien, before the King (upon and office found for him) doth enter; yet the King, after Office found, shall have the Land. Nullum semile est idem. Litt. Com. 43. b. Tenant by Statute Merchant, Staple, or Elegit; are said to hold land, ut liberum tenementum, until their debt be paid: Yet in truth they have not Freehold, but a Chattel, which shall go to the Executors; and the Executors, if ousted, shall have an Assize. But is similitudinaric; because they shall by the Statutes, have an Assize, as a Tenant of the Freehold shall have; and in that respect hath similitude of a Freehold; but, no like is the same thing. Nullus commodum capere potest de injuria sua propria. Litt. Com. 148. b. If B. make a Lease of one Acre for life to A. and A. is seized of another Acre in Fee; and A. granteth a rent-charge to B. out of both Acres, and doth waste in that Acre which he holdeth for life, B. recovereth in waste. The whole Rent is not extinct, but shall be apportioned; and yet B. claimeth one Acre under A: So if A. had aliened in Fee, and B. had entered for the forfeiture. O. Oninis privatio praesupponit habitum. A person maketh the Lease for years, reserving a Rent, and dieth; the Lease is determined by his death. Also in a real action, a Parson, Vicar, Archdeacon, Prebend, shall have did of the Patron and Ordinary, as Tenant for life shall have. So that to many purposes, a person hath in effect but an estate for life, and to many a qualified Fee simple. But the entire Fee and Right is not in him, and therefore he cannot discontinue the Fee simple that he hath not, nor ever had; for, Omnis privatio praesupponit habitum. Omnia quae movent ad mortem, sunt deodanda. Coke l. 5.190. Foxley's case. Stamf. l. 1. c. 12. fol. 20 If a man ride in a Chariot, and the Chariot fall upon him and kill him, the Horses, as well as the Chariot, shall be a Deodand. Omne testamentum morte consummatum est. Coke l. 4. fol. 60. Forse and Hembling case. Lit. 112. b. The making of a Will is but an inception thereof, and it doth not take any effect till the death of the Devisor. Omne majus continet in se minus. Coke l. 5. 114. Wade's case. If a man be bound in a Bond for a sum of money, to be paid at a certain day; and at the day, the Obligee tender more than the sum; yet it is a good tender, for the reason abovesaid. Litt. Com. 43. b. Omne majus trahit ad se minus. The King cannot be said to be a Minor; for when the Royal Body Politic of the King doth meet with the natural capacity in one person, the whole Body shall have the quality of the Body politic, which is the greater, and more worthy, and wherein is no minority. Omnia quae sunt uxoris, sunt ipsius viri. Litt. Com. 112. a. b. And therefore she is disabled to contract with any; without the consent of the husband; neither hath she power to dispose of any personal estate in her own right. Omnis ratihabitio retrotrahitur, Litt. Com. 180. b. & mandato aequiparatur. As if A. disseise one to the use of B. who knoweth not of it, and B. assent to it; in this case, till the agreement, A. was Tenant to the Land; and after agreement, B. is Tenant of the Land; but both be disseizors. Coke l. 5. fol. 321. Playters case. Oportet ut res ceria deducatur in judicium. Playter brought an action of Trespass against one W. Wuare clausum suum fregit, & pisces suos cepit; without showing the number or nature of the fishes; and it was resolved, that the Count should have comprehended the fishes in certain, that the Defendant might have a certain answer; and upon which, a certain Judgement might be given. P. Pater est quem nuprie demonstrant. Litt. Com. 123. a. And therefore if a Villain have a Bastard by a woman, and marrieth her, the Bistard is no Villain, because the Villain cannot be said to be his father, he being a Bastard. Pendente lite nihil innovetur. At the Common Law, Litt. Com. 344. b. if hanging the Quare impedit against the Ordinary, for refusing of his Clerk, and before the Church were full, the Patron brought a Quareimpediss against the Bishop, and hanging the Suit, the Bishop admit and institute a Clerk, at the presentation of another: In this case, if Judgement be given for the Patron against the Bishop, the Patron shall have a Writ to the Bishop, to remove the Incumbent, that came in, pendente lite, by usurpation. But since Westm. 2. among other things, it is enquired, Ex officie, if the Church be full, and of whose presentation. Perspicue vera non sunt probanda. The Lord Cook, Litt. Com. ● 16. b. in his Commentary upon Littleton, observes, that Mr. Littleton never citeth any Authority through his whole Book, but when the case is rare, or may seem doubtful; which appeareth in this, that he putteth no case, but hath warrant of good authority in Law. The like of Justice Fitzherbert in his Natura Brevium, that he never citeth authority, but when the case is rare or doubtful. Plus precat author, 13 H. 7.10. Stamf. l. 1. c. 45.21 E. 4.71. quam actor. If one be present at the death of a man, and incite another to strike and kill him, by this he is principal, as well as he that killed him. Litt. Com. 14.6. Possessio fratris de foede simplici, facit sororem esse haeredem. A man seized of lands in Fee-simple, hath issue a son and a daughter by one venture, and a son by another venture, and dieth; and the eldest son enters, and dies without issue; the daughter shall have the land, and not the youngestion. The like of an Use. Ib. 10. b. Propinquior exeludit propinquum, & propinquus remotum, & remotus remotiorem. And therefore the Father's brother, and his posterity, shall inherit before the grandfathers brother, and his posterity. Proximus sum egomet mihi. And therefore in Legacies, it is reason, that the Executors shall have preferment of satisfaction before others; and the Law maketh allowance to them before any others. Q. Quando lex aliquid concedit, concedere videtur & id, Litt. Com. 55. a. 153. a. Coke Rep. Lyford's case. sine quo res esse non potest. If Lessee at will soweth the land, and the Lessor, after it is sown, and before the corn is ripe, put him out; yet the Lessee shall have the corn, and shall have free entry, egress and regress, to cut and carry away the corn. Quando aliquid fieri prohibetur ex directo, Litt. Com. p. 23. b. prehibetur & per obliquum. A Feosment upon condition, that the Feoffee shall not alien to such a one, naming his name, is good. And in this case, if the Feoffee infeoff J. N. of intent and purpose, that he shall infeoff J. S. some hold this a breach of the condition. Quando jus Domini Regis & subditi concurrunt, Litt. Com. 77. a. jus Regis praeferri debet. If a man hold lands of the King by Knight-service, in Capite; and other lands of other Lords, and dieth, his Heir within age; the King shall have the Wardship of all the lands, by his prerogative. Quaelibet haereditas naturaliter ad haeredes haereditabiliter descendit; Litt. Com. 11. a. nunquam naturaliter ascendit, nisi a latere. If there be father, uncle, and son; and the son purchase land in fee-simple, and die without issue, living his father; his uncle shall have the Land, as heir to the son. Quae in parts dividi nequeunt, 14 E. 3. Fitz. 1. Kitchin. fol. 134. a. solida a singulis praestentur. If my Tenant that holdeth of me by a Harriot, alien part of the land to another; every one of them shall pay Harriot, because it is an entire thing. Quaelibet concessio fortissime contra donatorem interpretauda. Litt. Com. 42. a. If Tenant in Fee make a lease for life, without mentioning for whose life, it shall be taken for the life of the Lessee, and shall be taken more strongly against the Lessor. Qui non habet in aere, Hobart's Rep. fol. 133. luat in corpore. And therefore the Law hath provided several executions for the executing of the Law; and he that hath not to pay of his goods, etc. must suffer in his body by imprisonment: Qui ex damnato etitu nascuntur, Litt. Com. 3. b. 78. a. 123. a. inter liberos non computentur. A man makes a lease to B. the remainder to the eldest issue male of B. and the heirs males of his body: B. hath issue a bastard son; he shall not take the remainder, because in Law he is not his issue. Qui haeret in litera, haeret in cortice. The statute of Glouc. c. 5. which giveth the action of waste against the Lessee for life, or years (which lay not against them at Common Law) speaketh of one that holdeth for term of years in the plural number; and yet though it be a penal Law, whereby triple damages, and the place wasted shall be recovered, yet tenant for half a year being within the same mischief, shall be within the same remedy, though out of the letter of the Law. Qui ad mit medium, dirimit finem. Litt. Com. 161. a. 26 Ass. 17.3 E. 4.2. And, Qui obstruit aditum, destruit commodum: And therefore, if a man be disturbed to enter and manute his land, this is a disseizin of the land itself. Qui peccat ebrius, Litt. Com. 247. a. luat sobrius. A drunkard who is voluntarius daemon, hath no privilege thereby, but what hurt or ill soever he doth, his drunkenness doth aggravate it. Qui per alium facit, Litt. Com. 258. a. per seipsum facere videtur. If the master command the servant to go to the Land, and make claim there to avoid the descent; if the servant doth all that which is commanded, and which his Master ought to do, there it is as sufficient, as if his Master did it himself. Qui semel Actionem renuntiavit, Litt. Com. Coke l. 8. f. 58. Beecher's case. amplius repetere non potest. A retraxit is a bar of all actions of like or inferior nature. Qui sentit commodum, Coke l. 5.99. Rook's case. c. l. 5.24. Dean and Chapter of Windsor's case. Hob. 4. f. sentire debet & onus. The Commissioners in the Commission of Sewers, aught to tax all which are in damage, or in danger of damage, and not only him which hath the lands next adjoining to the river: for it may be that the rage and force of the water might be such, that the value of the land adjoining would not serve to amend it, therefore the statute would have all in peril, 6 H. 6. c. 5. and which take commodity by the making of the Banks to be contributory to the amendment thereof. Quod ab initio non valet, tractu temporis non convaelescet. Tenant for life of a carve of Land, the reversion to the father in fee, the Son and Heir apparent of the Father indoweth his Wife of this carve by the assent of the Father, the Tenant for life dyeth, the Husband dyeth, the reversion was a Tenement in the father, and yet this is no good endowment, ex assensu patris because the father at the time of the assent had but a reversion expectant upon a freehold, (whereof he could not have endowed his own Wise) though the Tenant for life died, living the Husband. Quod prius est tempore, Litt. Com: 14.ae. potius est jure; &, quod prius dignius. And therefore among the males, the eldest brother and his posterity shall inherit lands in fee simple, before any younger brother, or any descending from him. Quod semel meum est, Litt. Com. 49. b. amplius meum esse non potest. And therefore, if a man let land for a term of years, the remainder over to another for life, or in tail, or in fee; in this case it behoveth the Lessor to make livery of seizing to the Lessee for years, otherwise nothing passeth to them in the remainder, although the Lessee enters into the tenements. And if the termor in this case enter before any livery of seizing made to him, then is the freehold, and also the reversion, in the lessor. And if the Lessor afterwards make livery to the Lessee, it is void, for by the entry of the Lessee he is in actual possession, and livery cannot be made to him that is in possession. Quod semel placuit in electionibus, Litt. Com. 146. a. amplius displicere non potest. If a man grant by his deed a rend charge to another, and the rent is behind, the grantee may bring a writ of Annuity, or distrain at his election, but he cannot have both together. For if he recover by a writ of annuity, the land is discharged of the distress. And if he distrain for the arrearages, and the Tenant sue a Replevin, and the grantee avow the taking of the distress in the land, in a Court of Record; then is the land charged, and the person of the Grantor discharged of the Action of Annuity. Quoties in verbis nulla est ambiguitas, Litt. Com. 14.7. a. ibi nulla expositio contra verba expressae fienda est. If a rent be granted out of the Manor of D. and the Grantor grant over, that if the rent be behind, the Grantee shall distrain for the same rent in the Manor of S. this is but a penalty in the manor of S. For the Law needs not to make construction, that this shall amount to the grant of a rent, for here a rent is expressly granted to be issuing out of the Manor of D. and the parties have expressly limited out of what land the Rent shall issue, and upon what land the distress shall be taken, and the Law will not make an exposition against the express words and intention of the parties. Quod constat clare, Coke l. 9 fol. 33. Batens case. non debet verificari. In a Quod permittat, if it appear to the Court that the Nuisance is to the damage of the Plaintiff, he need not show it specially; as if the house of the Defendant hangeth over the House of the Plaintiff's. Refert à quo fiat perquisitum. Litt. Com. 12. a. Ployd. 47. Sir Edw. Clere's case. Coke l. 5. f. 76. Paget's case. None shall inherit any lands as heir, but only the blood of the first purchasor. Remoto impedimento, emergit actio. If tenant for life, remainder for life, the remainder in fee, make waste in Trees, and after he in remainder for life die, an action of waste is maintainable by him in the remainder in fee, for the waste done in the life of him in remainder for life, because to the disinheritance of him in remainder in fee; and now the impediment, which was the mean estate for life, is taken away. Repellitur à Sacramento infamis. Litt. Com. 158, a. If a Juror be attainted or convicted of Treason, or Felony, or of any offence to life, or member; or in attaint for a false verdict, or for perjury, be adjudged to the Pillory, or the like; or to be branded, or stigmatised, or to have any other corporal punishment, whereby he becometh infamous; these and the like are principal causes of challenge. Res inter alios acta alteri nocere non debet. Litt. Com. 152. b. And therefore if a Lessor by Covin suffer a common recovery, the Lessee may falsify it by the Stat. of 14 E. c. 1. S. Sensus verborum ex causa dicendi accipiendus est; Coke l. 4. 105. Birchlye's case. & sermons secundum subjectam materiam: & sermo relatus ad personam intelligi debet de conditione personae. The Defendant said to B. Clerk of the King's Bench, (and sworn to deal duly without corruption,) You are well known to be a corrupt man, and to deal corruptly, adjudged that the action lies, because the words ex causa dicendi imply, that he hath dealt corruptly in his profession. Semper praesumitur, Lit. 126. a. pro legitimatione puerorum And therefore if the Husband be within the four Seas, that is within the Jurisdiction of the King of England, if the Wife hath issue, no proof is admitted to prove the child a bastard. Si mul●er nebilis nupserit ignobili, Litt. 16. b. Coke. l. 6 53. l. 4.18. b. desinit esse nobilis. If a woman gain Nobility by Marriage, if she marry under the degrees of Nobility, she loseth it; otherwise, if Noble by descent. Solus Deus facere potest haeredem. Litt. come. 7. b, 22. b. And therefore during the life of the Father he cannot be heir, but heir apparent? And therefore a Lease for life, the remainder to the right Heirs of J. S. if Tenant for life die, living J. S. the remainder cannot rest, there being no heirs of J. S. but only apparent. Stabitur praesumptioni, donec probetur in contrarium. Lit. Com. 310. b. 393. b. If a man plead the Feoffment of a Manor; he need not plead an Atturnment of the Tenants, for that shall be presumed, till it be shown to the contrary. T. Testamento cum duo inter se pugnantia reperiuntur, Litt. Com. 112. b. ultimum ratum est. In one Will where there be divers devises of one thing, the last devise taketh place. Traditio loqui facit chartam. A Lease dated 26. May. 25, Coke l. 5. f. 1. Claylon's case. Eliz. to hold from three years henceforth, it was delivered at three of the Clock in the afternnon of the 20th of Junt after, from henceforth shall be taken the day of the delivery inclusive, for the day of the delivery is parcel of the term; but à die confectionis, or à die datus, the term beginneth the day after the date. V Vana est potentia quae nunquam venit in actum. Coke l. 2. fol. 50. Tenant in Tail, Cholmley's case. the remainder in Tail, the remainder bargains and sells the land, and all his estate, to I. S. for the life of Tenant in Tail, the remainder to the Queen; the remainder to the Queen is void, because the Grantee, for life of Tenant in Tail, took nothing; for it is a void Grant. And a remainder, dicitur, quasi terra remavens, which cannot be here. And the remainder must take effect when the particular estate ends; and here it never gins. Et vana est illa potentia, quae nunquam venit in actum. Vbi factum nullum ibi fortia nulla, Coke l. 4. fol. 43. Syers case. & ubi non est principalis non potest esse accessarius. If the principal be pardoned, or hath his Clergy, the Accessary cannot be arraigned, for none can be principal before it be so adjudged by Law; viz. by Judgement upon the Verdict or Confession, or by Outlary. And it sufficeth not, that in truth he be principal, and the acceptance of pardon, or prayer of Clergy is an argument, but no judgement in Law, that he is guilty. Vbi eadem ratio ibi idom jus. Litt. Com. 232. a. 191. a. If two men do a trespass to another, who releases to one of them, by his Deed, all actions personal; and notwithstanding, sueth an action of Trespass against the, other the Defendant may show, that the Trespass was done by him, and by another his fellow; and that the Plaintiff, by his Deed, which he showeth forth, release to his fellow all actions personal, and demand the Judgement. And yet such Deed belongeth to his fellow, and not to him. But because he may have advantage by the Deed, if he will show the Deed to the Court, he may plead this. By the same reason may the Feoffer, if he is come by the Deed Poll, when he ought to have advantage by the Condition, comprised within the Deed Poll. Lit. Com. 32. c. Vbi nullum matrimenium, ibi nulla does. To the having of Dower it is necessary, that the Marriage do continue; for, if that be dissolved, the Dower ceaseth. Verba accipienda sunt in mitiori sensu As, Coke l. 4.13. Thou art a Thief, and hast stolen a Tree, (spoken of another) it shall be intended a Tree standing. Verba accipienda sunt cum effectu. Cok. Rep. l. 4. f. 48. Ognel's case. Litt. Com. 183. b. 112. b. Coke l. 3.23. Ployd, 197. b. 213. c. ●▪ If Lands be given to two men, and to the heirs of their two bodies begotten; the Donees have a joint Estate for the term of their lives, and yet they have several inheritances, inasmuch as they cannot have an heir between them engendered; the Law will, that their estate be such as is reasonable, according to the form and effect of the words of the Gift, viz. the Heirs which the one shall beget of his body by any of his wives; and, so of the other. Verba aequivoca & in dubie posita intelliguntur digniori & potentiori sensu, Coke l. 6. fol. 20. gregory's case. secundum excellentiam. As if the speech or writing be of I. S. generally, it shall be intended of the father, where the father and son are both of a name. So, if of two brothers of one name it shall be intended of the eldest; for these are more worthy. So, where the Statute of 4. & 5. Phil. & Mar. speaketh in any Court of Record, it shall be intended of the four Courts at Westminster, because the King's Attorney it Attendant there. Verba relata hoc maxime operantur per referentiam ut in esse videantur. Litt. Com. 9 b. As if the father infeoff the son, to have and to hold, to him and his heirs; And the son infeoffeth the father as fully, as the father enfeoffed him: By this the father hath a fee-simple. Verba chartarum fortius accipiuntur contra proferentem. As, If two joint-tenants grant a Rent of 10 s. the Grantee shall have a Rent of 20 s. out of the land. Vnumquodque dissolvitur eo ligamine quo ligatur. Litt. 5 H. 7.33. 4 H. 7.7. b. In an Annuity, growing by prescription, rien arrear, is a good plea; for this prescription is matter in fact: But in an Annuity by Deed, it is no good plea, without showing an Acquittance. Vltima voluntas Testatoris perimplenda est secundum veram intentionem. Litt. Com. 322. a. b. If a man let lands devisable to another for life, or for years, and deviseth the Reversion, by his Testament, to another, in Fee or in Tail, and dyeth; and after, the Tenant commits waste: He, to whom the Devise was made, shall have writ of waste, although the Tenant never Atturn. And the reason is, for that the Will of the Devisor may be performed, according to his intent. And if the effect of this should lie upon the Attournment of the Tenant, then, perchance, the Tenant would never Attorn; and then the Will of the Devisor should never be performed. And for this, the Devisee may distrain, etc. or bring an action of Waste without Attournment. Voluntas testatoris ambulatoria est usque ad mortem. Litt. 112. a. b. Coke l. 4. f. 60. Forse and Hemling's case. And therefore▪ if a man, at divers times, make divers Devises and Testaments, yet the last Devise and Will made by him, shall stand, and the other are void: for the latter Will doth countermand the first. Volenti non fit injuria. Pop. 9 As if Lessee for twenty years accept another Lease for ten years; the first Lease is void and gone, being the acceptance of the second, is, in Law, the surrender of the first: and no wrong in the Lessor. Vtile per inutile non vitiatur. Litt. come. 227. a. If the Jury give a Verdict of the whole issue, and of more▪ etc. that which is more is surplusage, and shall not stay Judgement. Vxor non est suijuris, sed sub potestate viri. Litt. come. 112. a. And therefore during the Coverture, she is disabled to contract with any, without the consent of the husband. Rules and Principles of Law. LAW is an Art of well ordering a civil Society. Laws, are Native or Positive. Native, are those Laws, which are in us of themselves, and therefore unchangeable and perpetual. These are twofold, like those two great Lights, Bracton. l. 9.23. 3 H. 6.55. which God hath set in the Firmament of our Heart, Nature and Reason. Lex naturae est ratio summa, insita in hominis natura, quae jubet ea quae faci enda sunt. prohibetque contraria. Cic. l. 1. de legibus. The Law of Nature is Sovereign Reason, fixed in man's nature, which ministereth common Principles of good and Evil. The Law of Reason is, that which deduceth Principles by the discourse of sound reason. The rules of Reason are of two sorts; some taken from Foreign Learnings, both divine and humane; the rest proper to Law itself. Of the first sort are the principles and sound conclusions, from foreign Learnings. First from Divinity the Doctrine of Religion. To such Laws of the Church as have warrant in holy Scripture, 34. H. 6.40. our Law giveth credence. 1. The Sabbath day is no day for law-days: 1 Eliz. Dy. 168. F.N.B. 17. f. 12 E. 4.8. Dies Dominicus non est juridicus. If a Scire facias out of the Common Pl as, bears Teste upon a Sunday, it is error. Of Grammar. 2. Words in construction, must be referred to the next Antecedent, when the matter itself doth not hinder it. An Indictment against I. S. serviens I. D: de D. in come. Mid. Butcher. 9 E. 4. 4●. 32 H. 8. Dy. 46. b▪ This is not good; for Serviens is no addition, and Butcher referreth to the Master, which is the next Antecedent. From Logic. In the Maxim of Causes and Effects. The Cause ceasing, 5 E. 4.8. b. 7 El. D. 293. b. 13 El. 401. 13 E. 4.10. b. the Effect doth likewise cease. The King granteth an Office to one at will, and ten pound-fee for life, 14 H. 7.2. pro officio illo. Now if the King put him from his Office, the Fee shall cease. 4. Things are construed according to that which was the cause of it. 21 E. 4. 68 b. 14 E. 3.14. b. 14 Ass. pl. 20. 3 E. 3.84. One imprisoned, till he be content to make an obligation at an other place, and afterwards he doth so, being at large; yet he shall avoid it by duress of imprisonment. 5. Things are construed according to that which is the beginning thereof. 33 Ass. pl. 7. 10 Eliz. Dy. 266. b. If a servant (departed out of his Masters' service) kill his Master, upon malice that he bore him whilst he was his servant; it is petty Treason. 6. And therefore a derived power cannot be greater, Litt. 6. 28 Ass. pl. 4. 2 E. 4. 1● than that from which it is derived. The Attorney of one that is disseized, cannot make claim of from the land, if the Disseizee himself durst have gone to the land 7. Things are dissolved as they be contracted. 19 E. 4.1. 5 H. 7.33. b. 5 H. 7.7. b. An Obligation, or other matter in writing, cannot be discharged by lan Agreement by word. 8. Things grounded upon an ill and void beginning, cannot have a good perfection. 10 El. Dy. 344▪ An Infant or Feme covert, make their Will, and publish it, and after dying of full age or sole; yet the Will is nothing worth. 9 He that claimeth paramount a thing, 2 & 3. El. Dy. 187. shall never take benefit nor hurt by it. An Executor recovereth and dieth intestate. Administration of the first Testator is committed to J. S. J. S. shall not sue execution upon this Recovery; for he is Administrator to the Testator Paramount the intestate. 10. Things are construed according to the end. 19 E. 4.3. 13. E. 3. joinder in aid 10. 50. Ass. pl. 2. Vouchee, upon a Grand cape ad valentiam, shall not lose the land, though he cannot save his default: For the Process is only to this end, to have him to appear. In the Maxim of Subjects and Adjuncts. Where the foundation faileth, 3. E. 3.74. b. 49 E. 3.8. all goeth to the ground. A Church appropriated to a spiritual Corporation becometh disappropriate, if the Corporation be dissolved. Things incident cannot be severed. 7 E. 4.11. 12 El. 12. 381. Dy. 12 El. 12.379. 19 H. 8. Br. Incidents. 34. 3. E. 3▪ Ass. 441. Lord and Tenant, by fealty and homage, the Lord releaseth his fealty; this is void: for fealty is incident to homage. Things, by reason of another, are of the same plight. Two Copereeners make partition, and one covenants with the other to acquit the land. 42 E. 3. 6 E 6. Dy. 72. b. F. N. B. 21. b. Now if the Covenantee abett his part, the Alienee shall have a Writ of Covenant. Personal things. Cannot be done by another. 7 H. 4.19. 21. E. 4.34. Suit of Court cannot be done by another. They cannot be granted over, as matters of pleasure ease, 12 H. 7.25. 19 H. 8.10. 7 H. 4.36.11.3.4.1. 12 El. 179. Br. Licences. 25. trust, and aeuthority. A licence to hunt in my Park, to go to Church over my ground, &c. cannot be granted over. So a warrant of Attorney made to one to deliver seizing, he cannot grant this his authority over. They die with the person. When a corporal hurt or damage is done to a man, 2 H. 8.21.1.2. & P. & M. 114. as to beat him, etc. if he or the party beaten die, the Action is gone. Among the disagreeable arguments. First, from these that differ only is a certain respect and reason, not indred and in nature. Things do inure diversty according to the diversity of Time. Lands given in Frank marriage reserving a rent, 26 Ass. pl. 66. the reservation is voids till the fourth degree past, and afterwards good. Person, viz. Of the same person. One that hath a rent-charge going out of the wive's lands, 14. H. 8.6. releaseth it to the Husband and his. Heirs, the Husband yet shall not have it, but it shall inure to him by way of extinguishment only, as seized in the right of his wife. Several persons A man makes a lease of a Manor except an acre, 1 & 2 P. & M. 104. 11 E. 4.2. this acre is no part of the manor as to the Lessor, but as to him that hath right to demand the Manor by an eign title, it remaineth parcel, and therefore he shall make no foreprise in his writ. Then from Relatives. No man can do an act to himself. 3 El. Dy. 188. 13 H. 8.22 Lit. 147. b. And therefore if the Sheriff suffer a common recovery, it is error, because he cannot summon himself. Of Comparisons from the equals. Things are to be construed, secundum equalitatem rationis. If two, four, 26 Ass. pl. 37. Coke 136. Sir Will. Herbert's case. Bract. l. 1. c. 23. H. 8. Fitz. or more men being severally seized of land, join in a recognizance, all their lands must equally be extended. From the greater and the less. The greater doth contain the less. 3 & 4 P. & M. Dy. 150. b. By a pardon of Murder, manslaughter is pardoned. A matter of higher nature determineth a matter of lower nature. 21 H. 7.5.33 H. 8. Dy. 50. A man hath liberty by prescription, and after taketh a grant of those liberties by Letters Patents from the King, this determneth the prescriptions for a matter in writing determineth a matter in fair. The more worthy draweth to it things of less worthiness. 11 H. 4.31 10 El. 321 b. 3. Eliz. 238. An adulterer, if he takes away another man's wife, and puts her in New , the Husband may take the wife with her . And therefore. Things accessary are of the nature of the Principal. 40 Ass. pl. 25. 7 H. 6.19. b. 26 H. 8. Dy. 7. b. A Servant procureth another to kill his Master: This is not petty Treason in the Servant, because it is but felony in the other, which is the principal. A Mans own words are void when the Law speaketh as much. 30 Ass. pl. S. Lands given to two, & uni corum diutius viventi, they make partition, and one dyeth, yet the lessor shall have again the moiety of him that dyeth, for uni corum diu●ius viventi are but idle words, because (without them) the joint-tenant by course of Law is to have all if he do survive. From the Rule of Method. In things of Formality. The Generals must go before, The Rule of the Register. and the Specialls follow after. In a writ the general shall be put in demand, and in plaint, before the special: as land before prede, pasture, wood, etc. wood before Alders, Willows, etc. The more worthy is to be set before the less worthy. The entire thing shall be demanded before the moiety, ibid. part, ibid. or parts. The thing of greater dignity before that which is of less: as a Mess before Land, a Castle before a message or manor. Next are the precepts of Natural Philosophy. Law respecteth the bonds of nature. As the Son may maintain his father, and one brother another. The Law judgeth and esteemeth of all according to their nature; both persons and their ages, things, actions, and the time of the doing them. In persons. It looketh to the excellency of some, and giveth them singular privileges, and preeminencies above the rest. As to the King, the Queen his Wife, Noblemen and Peers of the Realm: Also unto them of the Church. It tendereth the weakness and debilities of others, As, of men out of the Realm, or in prison, femes Covert, (and therefore favoureth them for their Dowers,) infants, men unlettered, Idiots, etc. If a disseizor die seized, the disseizee being all the while within age, Covert-Baron, in prison, or out of the Realm, it shall be no descent to toll the entry of the disseizee. And an Idiot, or man of nonsane memory may enter, or have an action to avoid their own Peoffments. It favoreth strangers, not parties nor privies. Lessee for years grants a rent-charge, 1 El. 198. and surrenders▪ yet the rent shall be paid during the years. And therefore things done in another's right. A person Outlawed, or Excommunicated, may have an Action, as Executor of another man. It disfavoureth othersome. Aliens, neither borne within the Realm, nor free Denizens, that they shall not participate of the Privileges of natural-born subjects. Especially Alien that are enemies. Alien enemies shall not have so much as a personal action, which other Aliens may. Touching their Ages. It holdeth 21 their full age, to make good any act they do: 14 their age of discretion: And therefore, That a competent age to bind a man in matter of marriage; 12 to bind the woman; 9 to deserve her Dower. In things. It respecteth every one according to worthiness: As. Life and liberty most; the person above his Possessions; Freehold and Inheritance more than it doth Chattels; Real Chattels more than Personal. A Villain enfranchised for an hour, is free for ever. So, if enfranchised upon condition, the condition is void, and the enfranchisement absolute. A matter in right, more than a matter in Possession. 3 E. 3.88. In avowry or Annuity, aid shall not be of a person, if the Plaintiff be seized by the hands of the same person, because it is of the person's own wrong to deny it. Otherwise, in a Cessavit, for that is in the right for the land. Yet it favoureth Possession, where the right is equal. A man purchaseth at one time several lands, 8 El. 296. holden of several Lords by Knights-service, and dyeth: the Lord that first can hap the Wardship of his heir, shall have it. It favoureth. Matters of Profit and Interest largely; of Pleasure, 13 H. 7.13 12 H. 7.25.11. H. 7.12.35. H. 6.58. 4 E. 6.68. b. Ease, Trust, & Authority, or limitation strictly. Way granted to Church over my Land, extends not to to any other but himself; for it is but an Easement. If the Sheriff behead one that should be hanged, it is fellow y. A Lease to A and B, etc. for their liv s. A dieth, B shall have all during his life, for it is an interest. But if a Lease be made to J. S. during the life of A. and B. there, if one of them die, the estate is determined; for that is a limitation. Therefore, These may be countermanded, 9 E. 4.4. b. 1 E. 5.2. 28 H. 8. Dy. 22. 14 E. 4.2. Perk. 19 b. so cannot those. A licence to come to my house to speak with me. Goods bailed over, to deliver to J. S. or to bestow in alms. A Letter of Attorney to deliver seizing. All these may be countermanded, before they be dones. But if I present J. S. to a Church, I cannot after vary, and present a new; for, a kind of interest passeth out of me. It favoureth matters of Substance, more than matters of Circumstance. Pleas in Bar, and Replications, though the Plaintiff be afterwards Non-suite, make an Estoppell, for they are express allegations, and material. As, 21 H. 7.24 b. in Debt upon Obligation, if the. 33 H. 6.10. b. Defendant plead in Bar an Acquittance made at D. Or, if the Defendant plead an Acquittance, and the Plaintiff reply, That it was made by duress of Imprisonment at. D. Now in another action, neither the Defendant shall plead, that the Acquittance; nor the Plaintiff, that the duress was at another place. But a matter. in the Writ or Count, makes no Estoppel; for they are but supposals. 20 H. 7.11.32. H. 8. Br. Darrein Pre●●…ments. Things executed and done, more than things executory and to do. A Feoffment to the use of ones Will, if this Will be declared before, or at the time of hit Feoffment; it cannot be altered, because it is executed. It favoureth possibility of things. And therefore. 1 H. 4.1.15. H. 7.10.41 E. 3.11. Nothing to be void, that by possibility may be good. A messualtie is given in Tail, reserving a Rent: this is good: for, the tenancy may Escheat to the Doriee, and then the Donor shall distrain for all his arrerager. It favoureth a mutual recompense. An assumption or promise doth then only bind, when it is made upon good consideration. In Actions. It yieldoth favour, when for the doing of it there is necessity. Br. Executor. 172. A man, in his own defence, for the necessity of the saving of his life; and a Champion, in a Writ of Right, for the necessity of Trial; may kill another. Whither refer, Conformity, which is a kind of necessity. Rend must be demanded, though no man be upon the land to pay it. Of Colour. If the heir endow the Ancestors wife, 41 H. 3.28 22 Ass. pl. 64. though she were not dowable, yet she shall hold in Dower. It prizeth acts in Law higher, than those that are done by the party. 2. & 3. P. M. 134. b. 29 Ass. pl. 23. 49. E. 3.15 2 H. 7.5. For equality of partition among Coperceners, a Rent granted shall be a Fee-simple, without the word [heirs] and issuing out of the land, without so expressing it in the Grant. It reputeth, that men will always deal for their own best advantage. And therefore, Believeth against the party, whatsoever is to his own prejudice. For the time of doing things. It countenanceth more, Things done in time of peace, Litt. 97. 7 E. 3. Darren presentment. 2. F. N. B. 31. b. than in time of war. A Diffeizin and Descent, in time of war, shall not toll the Entry of the Dasseized. Things done in the day, more than in the night. A man must not distrain in the night time for Rent behind. Where things are fit to be straitened to a time, is esteemeth according to the nature of the things. Sometimes a whole day sufficient. Where goods are lost in War, and recovered from the enemy by another of the King's subjects, the owner shall have them again, if be make fresh suit, before the Sun set, else, not. Sometimes a whole year. The Lord loseth his Villain for ever, if a Villain fly into ancient Demeasn, and there continue a year and a day, without claim of the Lord. The third offence it estremeth more heinous. The third Writ, not returned by the Steriff, is a contempt, whereupon an Attachment lieth. Political Precepts follow. The Law savoureth. Things for the Common-weal. 8 E. 4 18 b. 14 H. 8. 25.29. H. 8 Dy. 36. b. Fishermen may justify their coming upon the land adjoining to the Sea, to dry their Nets; for, Fishing is for the Commonwealth, and fustenance of all the Realm. Public quiet. And therefore, Common Error goeth for Law. Ploy. Manxel's case. f. 2. 2 R. 3.7. Whether a common Recovery be a Bar unto an Estate Tail, or no, is not to be disputed; because a great part of the Inheritance of the Realm doth depend upon it. Of this kind are those Occonomicks. The Husband and the Wife are one person. And therefore, F. N. B. 78 Abridgement. Ass. pl. Brook. Denisn. 2. The Wife is of the same condition with her Husband; Frank, if he be free; Denizen, if he be an Englishman, though she were a neise before, or an alien born. They cannot sue one another, 21 H. 7.29 b. Perk. 40. or make any grant unto the other, or such like. If a woman marry with her Obligor, the Debt is extirect and she shall never have an action against the co obliger, if another were bound with him; because the suit against her husband, by enter-marriage, was suspended; and therefore being a personal action, and suspended against one, it is discharged against both. Upon a joynt-purchase, during the coverture, either of them taketh the whole. Litt. 65.39 H. 6.45.21 H. 2. Judgement. 63. If the husband alien land, etc. so given, she shall recover the whole in a Cui in vita, altar his death, and the Warranty of one of them, or his Ancestors, is a bar of the whole against them both. The Husband is the woman's head. And therefore, All she hath is her hurbands. If goods be given to a Feme Covert, 21 H. 7.29. Litt. 148.14 El. Pl. 418. & 191 16 E 4.8.7 H. 6.1.39 H. 6.27. and another; the Jointure is straightway severed, and the husband and the other are Tenants in common: and the Executors of the husband shall have all the goods that were his wives. Her will is become his will, and subject unto it. If an action of Trespass be brought against Husband and Wife, and the wife come in by Cepi corpus, and the Husband doth not appear, she must be let at large without any Mainprize, till her husband doth appear; but he appearing may answer without her, therefore a protection cast by the Husband serveth for the wise also, because she cannot answer without him. Last, come the Moral Rules. The Law favoureth right. Litt. 158. When two are in a house, or other Tenements, and one lays claim by one Title, the other by another Title, the Law adjudgeth him in possession that hath the right to have the tenements. And therefore, Suffereth things against the principles of Law, F.N.B. 69 b. 4 H. 7.40.11 H. 7.10. rather than a man to be without his remedy. The Tenant shall have a replevin against the Lord that did wrongfully distrain, though the beasts be come back to himself, because he can have no action of Trespass against him. Hateh wrong. So that So man shall take benefit of his own wrong. 13 H. 7.1.31. H. 6.60.27. H. 8.11. One in execution escapes, and the Jailor gets him again, the party if he will may have him to remain in execution for him still, for the escape is his own wrong. And therefore, Of itself projudiceth not man. 12. E. 4.8.48. E. 3.27. He that misdemeaneth authority that Law giveth (as if one come into a Tavern, and will not go out in seasonable time; or distrein for rent and kill the distress) shall be a wrong doer ab initio. Especially for things that cannot be imputed to his own folly. 35 H. 6.3.38 H. 8. Br. The Lord Chancedor's Servant impleaded at the common Law, clameth privilege of the Chancery, and before it be discussed, whether he shall have it or no, the Lord Chancellor dyeth: yet his privilege is allowable still, for the act of the Court to advise of it, shall not prejudice him. And therefore, Driveth not a man to show that, which by intendment he knoweth not. 10. E. 4.15. 2 Mar. 128 4 E. 6.46. One bound in an Obligation to serve J. S. for seven years, in omnibus mandatis ejus licitis, shall plead that he did serve him lawfully, without showing what service or in what Commandment; for no servant can remember all. Truth. And therefore It disfavoureth Fraud and Covin. If a woman hath good title of Dower, 18 H. S. 5. and cause I. S. to disseise the Tenant of the Land, and recovereth her Dower against I. S. yet this is no good estate of Dower in her, for she is privy to an unlawful act, which should be the means of her estate. Uncertainty, whereby truth is inveigled. A man grants all his Trees and Wood upon black acre, 1 Mar. Dy. 91. Manxel's case. 10. b. that may reasonably be spared; this is a void Grant, unless it be referred to a third person's judgement, what may be spared. Variance. If the Writ vary from the Obligation, 11 E. 4.2. 4 Ass. pl. 2. 32 H. 6.3. 7 H. 6.22. or other speciality, in name, surname, or such like in an action of debt and annuity brought upon it, or the Count vary from the Writ; As in an action of debt of 20 l. 8 E. 4.2. and declare but a debt of 10 l. both shall abate. Contrariety. In trespass de domo fracta & muris ejusdem domus fractis. 21 E. 4.36 4 E. 4.29. 21 H. 7.21 2 & 3 P. & M. 153. The defendant cannot plead not-guilty to the breaking of the house, and justify the breaking of the walls, for house and walls are all one; and he cannot of the same thing both justify and plead Not-guilty, for by the justification he acknowledgeth himself guilty; so they are contrary. And therefore, It will not drive a man to justify that he goeth about to defeat: ●0 H. 7.9. He that bringeth an Assize of the Mastership of a Chapel against J. S: shall not need to name J. S. the Master of the Chapel, because the Plaintisse is to disprove his interest. Diligence. And therefore It hateth folly and negligence: Litt. 95. 5 E. 3.222. A descent cast during the Coverture, where the wife is disseized, barreth her not of her entry after her husband's death; But if a Feme-sole be disseized, and then taketh a Husband, there a descent during the Coverture taketh away her Entry; for it was her folly to take such a Husband that entered not in time. Speeding of men's causes. And therefore, It hateth delays. He that pleadeth a record in delay, 3 H. 6.15. 12 H. 7.3. 8 H. 7.9. 2 H. 6.1. as to prove the Plaintiff excommunicate, must have it ready to show; otherwise it is, if he plead it in bar. Unnecessary circumstances. One that is in Court ready to join with the Defendant, 8 H. 6.1. 1 H. 6.4. may do it without process. As the Vouchee the Plaintiffs lessor being prayed in aid of, when the defendant in a replevin avoweth upon him, or the Mesne when the Lord Paramont avoweth upon him. But joinder in aid cannot be by Attorney without process. Circuit of action. Upon the grant of a ward with warranty, Manxel's case ●7. b. the Defendant in a writ of right of ward may rebutt the Plaintiss by that warranty, and shall not be driven to bring an action of covenant for avoiding circuit of action. The Law construeth things with equity and moderation. And therefore, Restraineth a general act if there be any mischief or inconvenience in it. Litt. 110. Tenant for life lets to another for life without expressing whose lives, it shall be taken for the lessors own life, for else it were a forfeiture of his Estate. Moderateth the strictness of the Law itself. By abridging, diminishing, and taking away the severity of it, and mollifying the hardness of it, A moral virtue, as Plowden calleth it, and may appear by Aristotle, who treating of it defineth it, A certain correction of the Law, wherein it is any way wanting, because of the generality of it. It is no trespass to carry away a man's wife against his will to a lawful end. As to sue a divorce against her Husband, or to have the peace of him before a Justice of Peace: To the best. And therefore, Every act to be lawful when it standeth indifferent to be lawful or not. 6 11 H. 7.5. In an action of trespass, two issues are joined triable in two Counties, One in London, another in Middlesex only, without saying which of the issues it should try, this shall be taken to try the issue in Middlesex only: for so the venire facias is lawful, and not in both Counties, which is against Law. And therefore it is a discontinuance of the Issue in London, and not a mis-continuance. Thus far of Rules drawn from their Sciences. There follow those that are proper to ourselves, which we call Law-constructions. And these are natural, or feigned. Of the first sort we have two notable grounds. Law construeth things reasonably. And therefore, With a reasonable intent▪ A bargain and sale of Land, and a reversion, by deed not enrolled, the Reversion passeth not, no more than the Land, 21 H. 7.5. though the Deed, without Inrolment, may pass the Reversion; but it was meant they should passtogether. According to the effect. A Deed delivered by an Infant, 1 H. 6.4. cannot be delivered again at his full age; for, it took some effect before, and was but voidable. Otherwise, of a Feme Covert, or a Resease of one that hath nothing in the land; for here the first delivery was merely void. So that he that cannot have the effect of a thing, shall not have the thing itself. The King shall not be received upon default of Tenant for life, 4 Eliz. 241. because the Demandant cannot have the effect of the Receipt; viz. to count against him, which none can do against the King, but sue to him by Petition. To the most validity. Tenant in tail, Lit. 140. b. makes a Lease for life; this shall be intended the Lessee's life. And therefore, When any join in an act, it maketh it his act that may do it. Lit. 2 & 7 El. Dy. 191. The Disseizee, and the heir of the Disseizor, in by descent, make a Feoffment by one Deed and Livery; this is the Feoffment of the Heir only, and confirmation of the Disseizee. When two Titles concur, the best is preferred. One is disseized, Litt. and the disseizor lets the land to the Disseizee for term of years, or at will: Now, if he enter, the Law shall say, he is in of his ancient and best title. Things to be done by him that hath most skill to do them. 9 E. 4.4. 4 E. 6.15. 4 El. 230. Litt. 22.11 E. 4.36. An Obligation upon Conditiou, that the Obligee shall bring to the Obligor's shop (being a Tailor) three yards of Cloth, which shall be shapen, and the Obligor to make the Obligee a Gown of it; the Obligor must shape it. So, a Merchant agreeth with the King's Collectors, that his Merchandise shall be weighed at the King's Beam, and the King shall have his Subsidy as it riseth; the Collector must weigh it. Void things, good to some purpose. 10 H. 7.12 1: & 2. P. & M▪ 107. A Feoffment upon Condition to be void, as if it had never been, yet the Feoffee shall have an Action of Trespass, after the Feoffor's entry, for the Condition broken, for a Trespass done by the Feoffor before. One thing to inure as another. 21 H. 7.3. 15 H. 7.7. 37 H. 6.4. The King grants to a Town, easdem libertates quas London habet; it shall be intended the like, The Lessor infeoffeth his Lessee for life, by Dedi, & Concessi; this shall inure as a confimation. In one thing, all things pursuant to be included. 2 R. 2. Bar. 309. Upon a Grant of Trees, the Grantee may come upon the Land to cut them down, and with his carriage carry them thorough the Land. 14 H. 8.1. 10 E. 3.17. And the Vendee of all one's fishes in his pond, may justify the coming upon the banks to fish, but not the digging of a trench to let out the water, to take the fish; for he might take them by Nets, and other devices. But if there were no other means to take them, he might dig a trench. Strongest against him that doth them. 2 & 3. P. & M. 140. b. 161. b. Two Tenants in common grant a Rent of 20 s. the Grantee shall have forty shillings. But if they reserve twenty shillings upon a Lease, they shall have only one twenty shillings. And therefore, A man shall not qualify his own act. As, 21 H. 7.23. b. if the Obligee releaseth his debt till Michaelmas, the debt is gone for ever. So, a reversion of three acres of land is granted, 18 E. 3.53 17 Eliz. Dy. 339. the tenant atturns for one; it is a good atturnment for all. The construction which otherwise Law would make, is altered by the parties. Special agreement. Lessee for years is excused for waste, 40 E. 3.5. Perk. 55.56. if the houses be blown down by sudden storm or tempests. But in that case, if he covenant to keep reparations, an action of covenant lies against him. Special words. As, a Lease reserving a Rent, 27 H. 8.19 30 H. 8. Dy. 42. b. the heir of the Lessor, after his death, shall have the Rent: otherwise, if the Lease be reserving to the Lessor. Surplusage of words: An information upon a Statute, made such a day, 6 E. 6.84. 9 E. 4.28. h. and the day is mistaken, is nought, though he needed not to have recited the day. 9 El. Dy. 255. b. A feigned construction, which we call a fiction in Law, is, when in a similitudinary sort the Law construeth a thing otherwise, than it is in truth; and is of the person, thing, action, and the circumstances thereof, time, and place. Of the person. Things done by another, are as if they wert done by one's self. 27. H. 8.24. A promise to one's wife, in consideration of a thing to be performed by the husband; if the husband, upon his coming home, agree and perform the consideration, he may plead this promise as made to himself. So, if my servant sell my goods, and I agree; I shall have an action of debt, supposing be bought of me. Of the thing, we have these two Rules. A thing that cometh in lieu of another, 18 E. 3. rec. in val. 26.48 E. 3 11.6 H. 4.1. to be as if it were the same. One shall recover in value against the heir, (upon the Ancestors Warranty) lands, which the heir took in exchange for lands descended. A thing to be all one with that, whereunto it doth amount. The Maxim of a Bastard eigne, is, that the mulier puisne must make an entry upon him, or else he gaineth the right; yet, a continual claim, made by the mulier puisue, 14 H. 4.9. 14 H. 8.13 5 H. 7.1. destroyeth his right, for it amounteth to an Entry. So, a Lease for years, and a Release, amount to a Feoffment. And therefore, A thing that should not be done; to be as if it were not done. 20 El. Dyer. 362.18 El. Dyer. 362. A man makes a Lease for years of a house, with certain implements, reserving a Rent. The Executors, after the Testators death, receive the Rent, yet it is no assetts in their hands; for the whole Rent belongeth to the Heir. So, of a thing done in a time that it should not. A man seized in fee, let's for ten years, 1 E. b. Br. 18. and after selleth the land, and taketh it back to him and his wife; and then the husband and wife let it for 20 years, reserving a Rent. The husband dieth, the wife accepts this rent, during the first ten years. By this, the second Lease is not affirmed, 21 El. 563. for the acceptance of a Rent before the Lease beginneth, and so before any Rent be due, is no acceptance at all. To the circumstance of Time, these two Rules pertain. Priority of time is imagined in things. Done together. One deviseth a term for years to his son, 21 El. 540. and that the wife shall have it during the son's minority. This is first a Devise to his wife, and after to the son when he cometh of full age. Happening in an instant. A Mesualty descends to the Tenant of the Land: 11 H. 7.12 7 H. 46. 9 E. 4.21. Though the Mesualty be at the same time and instant extinct; yet the Tenant shall pay relief, if he be of full age; or be in Ward, if he be within age; viz. where it is holden by Knight's service. Things relating to a time long before, be, Litt. 92.36 H. 6.7. as if they were done immediately from that time. Where the wife is endowed by the heir of the husband's lands, she shall be said to be in, immediately from the husband. And therefore if the husband were a Disseizor, and the heir in by descent; yet the Disseizee may enter upon the wife. These Rules of common reason do many times cross and encounter one aenother, which is the greatest difficulty that is found in the arguing of Cases. But, to help this, the general ground is, according to the former Rule, that, Those prevail, Litt. 110. b. 140. b. 32 H. 8. that carry the more excellent and perfect reason with them. Tenant for life makes a Lease for life, Br. gar. 18.28. E. 3.20 b. Br. gar. 17.35 H. 6.3. 9 El. Dy. 264. b. 11 H. 7.9. Perk. 41.13 H. 8.15.7. H. ●. 9. without naming whose life; this shall be intended for his own life, (Rule 74.) for else it were a wrong. But if Tenant in tail make such a Lease for life, this is a discontinuance, and for life of the Grantee, (Rule 86.) for it is strongest against the Grantor, and most beneficial for the Grantee. FINIS.