topics In the Laws of ENGLAND. Containing Media, apt for Argument, and resolution of Law Cases: also an Exposition of several words, not touched by former Glossaries. Non omne Argumentum undique venit ideoque non passim quaerendum est, multus alioquin error est exhaustoque labour quod non ratione scrutabimus non poterimus invenire nisi casu. Quintil. LONDON. Printed by R. L. for William leak, and are to be sold at his Shop at the sign of the Crown in Fleetstreet, between the two Temple Gates. 1646. To the honourable OLIVER Saint JOHN Esquire Solicitor general, AND OLIVER CRUMWEL Esquire, the Honourable, Prudent, and Valiant lieutenant general. honourable, IT may be matter of marvel, that any thing of Law should now be heard but to whisper amid the noise of loud Instrument of war, this may Apologize, that both sides profess the maintenance of Laws. If again it seem strange to any that I join for Patrons of a Lawbooke a Sword-man, and one of the long rob together: let this suffice, that the last is well known to have been longer time a maecenas of Schollers, then a Commander of Souldiers and men are also well persuaded that the points of these swords are bent onely against the adversaries of those Laws which are written upon their hilts. These Laws are now in danger, and the Common-wealth with them who can sit still and do nothing like old Creon, when his house was on fire embracing his only daughter, but helped nothing till himself and shee were consumed in the flamme. With my estate I cannot help, that was long since taken from me by the injustice& oppression of the Popish Northern Army and our own malignant Countrymen who called in that Army, and assisted them. With my body I can do little being somewhat in yeers and more unfitted by a sedentary life, besides uncalled upon for such services. I both approve and somewhat resemble the Spaniards posture, who when he is bleeding his last, and so weak he cannot stand to fight, yet while any life is in him he will be brodding at, and pottering upon the ground, every way with his Rapier or Dagger point as if he would do something, wound his enemy, &c. if he were able. These weak essays shows a mind to do good to the public; In them little new Law can be found, they rather show how to use the old, the logic of the Laws which is to be instrumental to all other Sciences, and called by the Philosopher Organon Orgánon. If these observations shall have any use that way or any else, I have my ends: Your honourable favours to me who are so much one for the public hath been reason enough to me to join you in this Dedication, Eadem sentitis, eadem agitis, in foro & in campo. The Romans called some of their Worthies Gladii Romanorum, so Marcellus, other Clipei, so Fabius Maximus, both go together, both useful now. I shall not need much to implore your protections who cherish every spark appears for the public. The Lord make you ride on with good luck for the rejoynting again his Majesty, and the great council of England, the Head and the Members, and that the Laws, one part( whereof is privilege of Parliament) may be maintained and duly executed, for as Bracton saith, Parum est jus in Civitate esse, nisi sint qui possint jura gerere, which if I mistake not, is a main ground of this bloody quarrel, which God end in due time, and in the accomplishment of Peace and Truth, which shall be the continued prayer of Your humble Servant, J. C. From my chamber in the Inner Temple. TO THE READER. MAn by his defection from his Maker, lost Truth as well as good, and is fain to gather up the one as well as the other by piecemeal, as a Bee that goes from flower to flower to get up any reasonable quantity of honey: How many minutula frustula are there found and left from one Age to another by such as have been witty and industrious in each Science, and altogether will not make up half that the first man had in the bulk unto intuitu, as it were. The Philosophers have left some Principles, Axioms, and Topikes, the Humanists, Physitians, and Moralists aphorisms: musicans their Systemata, for to that Science I take that word properly to belong, though usurped by the later Logicians. The Lawyers their maxims, Brocardica, Grounds, and Placita: Others their Paradigmata, Loca Media, fit for invention and argumentation, some of these by experience are demonstrative, and more immediately, certainly, and resolvedly bring Scientiam, others are of a lower rank, and are called Dialectica, or Probabilia, which help to resolve questions and cases with a more trembling judgement, and some fears, as they say, least the truth may be otherwise, and is termed opinion, as that other knowledge; of this kind are these few Observations of mine, and I call them topics, in which one may find matter of argument for cases shall be propounded, and raise Majors in which the chief vigour of argument lies: I dare not call them grounds of Law, as he did who once made an essay in this kind, yet I find a great Rabbin in our Law calls them Rules of Law. Institutes 1. 152. I have put them down in the most familiar way of our Books expression, which is in various languages, which will prove most useful, the Law of England intending matter, not words, and it brings what we have red in our books quickest to our apprehensions, whereas the turning of those terms into fine latin, or civill Law expressions, as some of late makes uncouth to the English Lawyer, and far less useful: There be 400 titles and terms of Law in our books, and yet if you have present use of any of these topics, you cannot find them there, in this you may, which will serve not onely to grace argument, but resolve some doubts, I haue made each place good by Book Cases, and some few Reports, you may add more in your daily reading without such observations, the Student will be put far to seek for such Rules and Cases upon a sudden, I have put them in an alphabetical order, the more easy to find them and make use of them, other method to dream of in Law learning as some have done is vain, sithence it consists of infinite particulars, of which the Logician determines thus. Individua non recipiuntur in methodum propter infinitatem. Vale. J. C. Contenta. ACt of God shall prejudice no man, 1 Act of a Court shall prejudice no man& contra, 2 Act the first who shall do where it is doubtful, 3 Act implicit where not sufficient but shall be explicit. 5 Act of an Enemy shall turn to my benefit, ibid. Act subsequent shall be guided by agreement precedent, ibid. Act imperfect of the part of one party shall be of both parties, 6 Act executed where it shall be defeasible and contrary, ibid One Act may enure to two intents, ibid. Actori incumbit onus, 7 An Act to himself, where a man may do and contrary, ibid. Where part of an Act cannot be performed, yet the rest shall, 9 One shall not have benefit of his own Act, prejudice he may, 9 One shall be punished for the Act of another, 10 One shall not defeat his own Act,& è contra, 11 Agens& consentiens pari poena plectuntur, ibid. A posse ad esse non est bona argumentatio, sic à non essè ad non posse, ibid. A posse ad esse bona fit argumentatio, 12 A non posse ad non esse bona fit argumentatio, ib. Act me invito made is not my act, 13 Argumentum à minori ad maius tenet affirmative, ibid. Bonum publicum privato preferendum, 14 Causa qualis tale causatum, ibid. Causatum non excedit suam causam, 15 Causans damnum equalis facienti, ibid. Coniunctive, and collective, words taken scorsim and discretive, 16 Causa cessant cessat effectus. 17 Coliquintidae parum totum ius vitiat, 19 A coniunctis ad devisa male arguitur, 20 Coniunctorum utrumque oportet esse verum, ibid. Damnum absque iniuria, not punishable. ibid. Deus& natura ferenda, 21 Dictum parts, is not exclusive taciti dicti legit, ib. Disiunctorum sufficit alterum esse verum, ibid. Distructio facti, shall be eodem modo quo creatio. Dictum parts, which is no more then dictum legis operates nothing at all. 23 Dominus& servus, judge and Minister, subject and sovereign, Idem non erit, so judge and party, 24 Dignior dat nomen rei,& regulabit eam, 25 Duty once discharged is always discharged, 26 De non existentibus& aliter exisentibus, quam lex vult eadem ratio, ibid. Aequipollentia habent eundem in lege vigorem, ib. Eadem ratio, idemius. 27 Expressum& particular facit cessare tacitum& general, ibid. Exceptio firmat regulam, concessionem, &c. 29 Aetymologia verborum non praebet firmum argumentum, 30 Exitus acta probat, 31 Expositio verborum, ibid. Averia Aut A, ab, abs Abathia Antchac Competent Consueta Circiter Citra Infra Circa Discretion Donque, then, tunc Demise Et Expiration Esteant, being Exactionibus Est, svit Eviction House Horrible, enormous Incontinenter& immediate Infra 4 Maria Inhabitant Resiant, commorant In, apud, ad, de Interest In manibus ind In rerum natura Ipso facto Iuxta Infra Maeremium menial Nuper Pacatione Praetextu Prima, Proxima Pacifice Pro Forfeiture Puer Nos, vos Permittere Res Sufficienter Sure, estate Similiter predict. Paratus Et caetera commodities sovereign Subditus Miniments Expositio verborum in Wills. Fixio juris neminem ledere debet, 49 Fortior est obligatio parts quam legis, 50 Fortior est dispositio legis quam hoins, ibid. Fortior& melior est provisio legis quam hoins, 51 Fundamento distructio cadit opus, ibid. general nihil certum ponit, 52 general words where they will help particular infirmities, ibid. general words in grants where they shall be restrained by particular words in the same clause, and contrary, 53 general discendens in particular sieve speciale, shall be ruled by that special. 54 He that needs most let him blow the coal, 55 Integra lex separat& individua, ibid. Idem taken pro simile, 56 Inconvenience, See ibid. Indefinitum supplet locum universalis, ibid. Ignorantia non excusat, 58 Inter aequales melior est conditio possidentis, ibid. Interation of a small offence will make it amount to a great one, 59 Iniuria propria non cadit in beneficium facientis, ibid. In praesentia maioris cessat potestas minoris, 60 Laches may prejudice but shall not aid any man, ib. The Law avoids circuit of action, 61 The Law yields to necessity, 62 The Law will suffer a mischief rather then an inconvenience. 63 Lex non cogit ad impossibilia, 64 Lex judicat de impossibiliter faciendis quasi fractis 66 Lex accepit voluntatem& diligentiam pro facto, ibid. Lex judicat de rebus necessario faciendis quafireipsa sactis, 67 The Law iudgeth of that may be done as actually done, 68 The Law iudgeth of some things actually done as not done& e converso. 69 The Law adjudgeth the same thing in esse,& non esse to divers purposes. ibid. Quod lex dicit factum, est sic acsi, by the party himself. 71 The Law iudges that it is illegally done, as not done at all. ibid. Leges priores per posteriores abroguntur,& contra. ibid. Lex non cogit ad vana peragenda. 73 Lex non haeret in syllabis vel literis modo de substantia constat. 75 The Law is sometimes stricter then the words of the party in force. 76 Lex non est curiosa. ibid. De minimis non curat lex. 78 Law presumes more then the party himself says. ib. Lex intendit optima perfecta& effectualia& legalia. 79 Lex omnia suaviter,& ad melius disponit. 80 Lex semper dabit remedium. 82 Lex judicat de insufficienter vel vane factis quasi omnino insectis. 82 The Law will accept of that is good in grants or pleadings, and reject the surplus. 84 The Law is more agile in working then the act of the paty. 85 The Law where it enioyns an Act to be done will provide be shall not be burt, à later that doth it. ibid. The Law regards the principal thing, and not additionals. ibid. The Law adiudges the denial to do a thing is not doing it or breach of covenant. 86 The Law-is not satisfied with shadows but substances. ibid. The Law hath an eye to the beginning of Acts. ib. Loquendum ut vulgus. 87 A lawful act by matter, ex post facto, may become unlawful. ibid. Malitia mutat legem. 89 Melior dabit nomen rei. ibid. Magis dignum trahit ad se minus. ibid. Magis continet in se minus. 91 Modus& conventio vincant legem& Regem& contra. ibid. Nihil dat, quod non habet. 95 Nemo bis punietur pro uno delicto. 97 Negativum nihil implicat, in a praecipe quod reddat. ibid. Nemo tenetur seipsum prodere. 98 Negatio duplex est affirmatio. ibid. Ou une est a defetur choose ceo ne serra object alui 99 Ou choose fait per implication serra bone,& contra. ibid. Ou choose serra, rule per le greinder part de le state. 100 Ouvne serra sou judge, demesne, paymaster, carver, &c. 101 Parols ou voilent amount al act& contra. 103 Parols subsequent bounded or qualified by the precedent,& è converso. 104 Parolx font plea. ibid. Poena aptabitur damno. 105 Poena sine culpa. ibid. Poena delictum superabit. ibid. Particeps criminis& non poenae. 106 Poena tollitur cum culpa, vel sequitur culpam. ibid. Propositio hypothetica taken Categorice. ibid. Principio non valens tractu temporis non convalescit. 107 Principio valens tractu temporis non devalescit. 109 Principio dato sequitur concomitans,& sit sublato. ibid. Praesumptioni stabitur donec probetur in contrarium. 110 Qui tacet consentire videtur. 111 Qui sentit commodum sentire debet& onus. ibid. Qui sentit onus sentire debet& commodum. ibid. Qui per aliud facit per seipsum facere videtur. 112 Qui remedio destituitur reipsa valet, si culpa absit. 113 Qui magis scit& potest de eo magis requiritur. ibid. Quicquid solo superstruitur solo cedet. ibid. Quicquid remittitur fieri aequat facto. 114 Quae non prosunt singula iuncta iuvant. ibid. Quod necessario intelligitur non d●est. ibi●. Quod non capit discus rapit fiscus. 115 Ratio dicti minus valet quàm dictum ubi differunt. ibid. Relations. ibid. Relatio& non ad ultimum. ibid. Relation will rectify incertainties in place, time, measure, &c. 117 Relation shall make things have been, as if they had never been. 118 Relation to defeat a thing, shall be intenta ad unum. 119 Relation will yield to necessity. ibid. Relation shall not be to take away things collateral, &c. 120 Relatio ad principium, &c. ibid. Ralation to time, place, &c. 121 Relatio sit ad accommodatiorae. 122 Relation to avoid thing or a vain thing will destroy that was good in the premises. 123 Semel malus semper presumitur malus& contra, 124 Similitudo non currit quatuor pedibus ibid. Sic utere tuo, ut non laedas alieno. ibid. singular distributive sumpta aequa● plurali. 125 Synonyma will not serve in our Law. ibid. Surplusse, what power and influence this shall have in Grants, 126 Totum continet suas partes& è converso. ibid. Totius& parts eadem ratio. 127 Totum qui concedit partes negare non potest. ibid. Tort of his own wrong, a man shall take advantag●. 128 utile per inutile non vitiatur, nec emendatur. 129 voided, in a Statute where it is said what sense it hath, &c. 131 voided, where a thing shall be for part, or for a certain time onely. 132 voided act as to that was intended, may yet be good and effectual to a collateral purpose. ibid. Volenti non fit iniuria. 134 Verba discretiva, shall not extend to joint words& contra. ibid. Verba coniuncta non capiantus discretive& contra. 135 Vna hirundo non facit ver. 136 Vniversale non comprehendit omne particular. ib. ubi dvo iuria in una concurrunt persona aeque est ac in diversis. 137 Vigilantibus non dormientibus subveniunt leges. ib. 1 THe act of God shall prejudice no man. Upon this reason it is if the heir at full age tender Livery, and die within three moneths, 8 Report Halls Case. which is the time given by law to finish his Livery, he shall have no prejudice, but as much benefit as if he had actually sued it forth, and the interest of the King is determined. Lessee for the life of I.S. is disseised, now to recover the mean profit the Law requires an entry, if I.S. die, which is the act of God, by which his entry is taken away, he shall maintain an action of trespass without entry, 38 H. 6. 28. and recover the mean profits. Lessee Covenant to leave a wood in such plight as it was in time of the lease, it is subverted by tempest, he is excused of his Covenant. 1 Report. 98. The same Law is of impossibility, as if it be impossible to gain actual seisin, in such case tenancy by the courtesy shall be without it, as in case of Rent and Advowson, and the wife die before the rent day, &c. 2 H. 3. Exception out of this rule is, if the act of God is not so merely, but the folly of the party intermixed, as where after battle joined, one of the parties becomes blind by his own folly it shall not excuse him which otherwise would. A River changeth his course and runs upon my ground, 22 Ass. 93. the common road shall be upon this as formerly, because it is not merely the act of God, but my negligence. In like manner, the rule of Impossibility fails where it was known to me before, 4 H. 6. 3. and therefore if I am bound to go to Rome and return in one day the bonds good. So if the matter was not merely impossible, as if I. S. assume to carry goods safe by water, and they are overthrown by tempest, this shall not excuse him because he might have carried them another way, 32 Eliz. &c. but if the carriage was to be by Sea otherwise it had been. Lastly, impossibility shal not excuse where no person is in being at the time to receive hurt by the impossibility, as tenant for life is the remainder to the right heires of I. S. Tenant for life is disseised, 1 Report Case Archer. and disseisor levies a fine at the Common Law, I. S. dyes, his right heir shall be bound, &c. though it was impossible he should make claim, or entry for to avoid it, &c. 2 Act of a Court shall prejudice no man& contra. In assize a verdict is given for the plaintiff and at this time corn was growing upon the land, the assize is adjourned into the Common Place and before judgement given the corn is severed and taken away, 41 E. 3. 19. he which recovered shall lose the corn by this adjournment. A man ought to have the privilege of the Chancery, as servant, 35 H. 6. 3. the Court advices upon it, and in the mean time the master is dicharged of his office, yet the servant shall have his privilege. The Court enlargeth him that is in execution contrary to the Law, 2 E. 4. 8. its said the party is without remedy, utlagarie after judgement is pardonned by the Chancellor, the debt not satisfied which is a wrong, 2 Eliz. Dyer 172. Its left doubtful whether the party can have any remedy, yet for the most part the party shall not be prejudiced, as if the Court advice upon a protection and before the day, in Bench the protection is repealed, 10 H. 6. 6. or a Writ of error cast in upon the first Record, upon which this in question depends, yet the Court will give judgement. After Counsance of plea prayed, 35 H. 6. 54. the Court gives a continuance, this shall not hinder the party to have Conusance of plea. See Institutes 3. title Appeal. 3 Who shall do the first Act, where it is doubtful. he that shall have advantage by it shall do it, 14 H. 8. 18. the condition of a bond is if the obligor resign his bnfice for a pension to be granted to him as they can agree, then the bond to be voided. It is not sufficient to agree of the pension, but the obliegee shal tender a dead for the assuring of it to the obligor. So where a Covenant is to assure the Mannor of D. to I. S. before Michael. next, as counsel shall advice the counsel of I.S. shall give the advice, and also tender the assurance. Note where the thing is certain to be done, he which is bound in assumpsit, or a bond shall do it to to save an action, and damage to be recovered against him. Assumpsit to make a feoffment to I. S. is, and an action is brought without request or tendor of any dead of feoffment, and well mayntainable because the other may make it without dead and request is not agreed upon. Condition of a bond is that the obligee shall bring three ells of cloth to the shop of the obligor which shall be measured, Old book entries, 5. the obligor shall do it to save his bond, aliter est, E. 3. Car. per Noy. in Casu& Brown Stroude. if the obligor is the tailor. An obligation is to build a house, as I.S. shal device the obligor ought to procure this advice to save his bond 4 Act implicit where not sufficient but shall be explicit. Two Garnishers are in a real action, and a stranger in their presence doth speak the words of garnishment, this is not sufficient, 43 E. 3. 32. but they in proper person ought to do it themselves. 5 Act of an Enemy shall turn to my benefit. As where several Nisi prius are sued by the plaintiff& Defendant by proviso, and they have several Habeas Corpora, 4 Eliz. Dyer 217. the plaintiff fail in Jurata Continuanda, but the Defendant doth continue it, the plaintiff shall take avail by it, as if he himself had done it. 6 Act subsequent shall be guided by agreement precedent. I.S. pays a hundred pounds at the day in the condition limited, Institutes 1. 109. if agreement was before that he should have part of that hundred pound again, this is no performance of the condition. A. brings goods into the Market to sell and there was an agreement before out of the Market for these same goods, 1 Mar. Dyer 99 if I. S. had the true property of these, no property is altered by this sale. Sic è converso. Act precedent by act subsequent, as where the Lord distreins his tenant, and after kills the distress, this in Law is a Declaration of his intent from the beginning, 12 E. 4. 8. and makes him a trespesser. Land descends to two daughters, the eldest enters into the whole, and makes a feoffment with Warranty, 9 Report Case Dowman. this declares the general entre to be for her self, and not for them both, and consequently it is no Warranty by disseisin. 7 Act imperfect of the part of the one party shall be so of both. As a woman within the age of 12 yeers is married to a man of above 14 yeers, Institutes 1. 79 in this case though he may consent to marriage, yet because shee cannot, he is at liberty to dis gree to this marriage as well as the woman. P. 42 Eliz. Case Costerd. 8 Act executed where it shall be defeasible and contrary. The husband and wife join in a Lease of the Lands of the wife, or grant her goods, and after they are divorced this shall stand. So when an Administrator doth necessary acts, and then the Executor proves the Will, yet those acts shall stand firm; so where a person makes a Lease, Institute 1. 138.& Kell. 126. and after is deprived because a lay-man, the Lease shall stand. 9 One Act may enure to two intents. The tenant infests the Lord and a stranger, and makes livery to the stranger, 3 Report Case B.& Bac. in name of both the Lord enters and distreins, this is a disagreement to the feoffment, and a divesting of the Freehold. Tenant for life impleaded, 38 H. 6. 37. prayeth in aid of the Grantee of the Reversion▪ this shall amount to an Attournament. Lessee Surrenders to the Grantee of the Reversion, this amounts also to an Atourment. 12 H. 7. 15. Plo. 87. 5 Report 15. A person demiseth to his Patron who assigns this over to I. S. this is a good grant of the term, and also a Confirmation, 6 Report Case Fitzwilliams. the same Indenture may revoke the old uses, and declare new uses. 10 Actori incumbit onus. A partition is sued of the Mannor of D. one defendant alleges that part of the land was purchased,& is not parcel of the Mannor, Dyer 266. he ought show the certainty of that parcel, otherwise the Jury are not bound to find it, if they do that, est veresimile. 11 An Act to himself, 11 H. 7. 4. Institutes 2. 139. 14 H 6. 2. 5 H. 7. 2. a man may do and contrary. A sheriff is plaintiff, he may take pledges to himself, and he may execute a Replevin against himself as I.S. tenant in tail, vouch himself to save the tail, he may have process against himself. 8 E. 3. 21. The sheriff is in seisin of a bailiwick, of a Liberty by seizure, he himself as sheriff shall command himself as Bayly of that Liberty, to execute that process. There is a Writ in the Register directed to the Sheriff, to inhibit himself, that he proceed not in a Writ of right, F.n.b. 4. e. a Bishop is defendant in a Writ of Dower, he himself shall certify the loyalty of the marriage in his own Case. 10 E. 2. ff. trial 100. The old books differ whether a Sheriff may summon himself or no, but later authorities have resolved it, that he cannot, but where two Sheriffs are, the one may summon the other, Michel 14.& 15 Eliz. Case, Vic. Norwich. but then note a special mention shall be of that in the Writ, and direction that the other shall summon him. It is holden, the Sheriff who is demandant may execute all process till it come at the Venire facias, 20 E. 4. 7. otherwise where he is tenant. The Archb. of Canterbury is made executor to one, who hath bona notabilia, 9 E. 4. 33. if he will refuse the executorship he shall make this before his Commissary and not by himself; a sheriff is conusee of a statute, Trin. 43. Eliz. Case. Sir Thomas Gerrerd. he cannot execute a Liberate himself. It is doubted whether a steward may admit himself to a Copyhold or no. See more of this title, 14 H. 8.31. Plo. casu, plate. vicesimo primo 6.16. cook Jurisdiction of Court. 105. 12 Where part of an Act cannot be performed, yet the rest shall. The condition of a bond is that I.S. shall be assured at Michael. 40 E. 3. 12. Case jo. de Pech●. of the remainder of the Mannour of D. after the death of I.S. and that H. shall be present at this assurance, H. dyes before Michael. yet the assurance shall be made, the same Law is if the words were that R. himself should be present, though he comes not then and there, yet the assurance shall not stay of that, because his presence is not necessary, For the remainder may be limited to him absent. 13 One shall not have benefit of his own Act; prejudice he may. 6 E. 4. 4. A man is utlage of felony, or condemned in debt, execution shal be done notwithstanding. And this holds against the King himself. Q. Mary who had an estate dum sola fuerit, 5 Mar. Dyer, 141. granted a Rent, the Reversion descends to her, and then shee marries, it seems shee shall not avoid this Rent by her marriage, contra est aliquando, by the folly of another, as one enters a bond to A. that he and A. shall stand to the arbitrement of I. S. or that A. shal take a Feoffment of him. A. 33 H. 6. ff. bar. 165. refuses, he himself shall take the forfeiture of this bond for the folly of the other to undertake this. If one that hath Collation to a bnfice, do present to it he hath lost his Collation, and subjected the Church to a lapse, F.n.b. 35 E. 2. &c. so if a person impropriate present to the Church, it makes it disappropriate. A Lord holds land for the value of the marriage by two yeeres, and the tenant enters before all is levied, the Lord shall recover the whole value. An heir who held by homage and fealty takes his land of the King upon office found, 44 Ass. 35. that he held by forty pound per annum, he shall be bound all his life time to pay that Rent so prejudiced by his act. 14 One shall be punished for the Act of another. A disseisor ceaseth, the disseisee enters, 44 E. 34. he shall be charged in a Cessavit. account is brought against two, the one enters into the account, 44 E. 3. 13. and it is found against him, it shall bind both: One is imprisoned in the Marshalses, a stranger breaks the prison, the Marshall shall bee charged for the whole debt. I have a way over the lands of twenty men, 33 H. 6. 26. per Prisot. one of them stops the way in his land, I shall have an action against all those over whose lands the way was. A rate is put upon a town for the fees of a Knight of the Parliament, the beasts of him hath paid his part, 11 H. 4. 2. are taken for the residue, he shall not have a replevin, but the beasts shall be sold to pay this duty. 15 One shall not defeat his own Act:& è contra. Lessee for years grants the next avoidance, and then surrender, 8 Report Case Davenport. this shall not destroy his own grant. A grant common to B. for a horse, and after grant a Rent charge, the horse of B. shall not bee destrained. 20 H. 7. 10. 5 Mar. Dyer 151. Brook the chief Justice did put out an Officer which he himself had admitted before: And so an Ordinary may admit the same party able, whom he hath returned disable before. 16 Agens& consentiens pari poena plectuntur. If one takes a horse by wrong, 43 E. 3. 43. by my consent, trespass lies against me, A. maim, B. by assent of C. appeal lies against A. and C. 22 Ass. 82. and damages equally against both, otherwise it is where interest is to be bound, as Dean and Chapter, seized in simul, the Dean leaseth the Land with consent of the Chapter: Dyer 40. This is not good. 17 A Posse adesse non est bona argumentatio, sic à non esse ad non posse. A device is of Land in fee, so of goods, if the Devisee die before the Devisor his heir, nor Executor shall gain any thing by this Will. Plo. 345. Case Brett. A. is indebted to B. 200 pound, and delivers goods to him to sell, meliori modo quo poterit, 18 E. 4. 5. to pay himself he is proffered 200 pound for the goods, and refuses it, and after he sels them for 12 pence, A. shall answer the residue of the debt notwithstanding this proffer and possibility was, 5 E. 3. 64. &c. Lands have never been departed betwixt males, therefore cannot be is a non sequitur. 18 A posse ad esse bona fit argumentatio. Condition of a bond is to save harmless without damage, if he may be damnified, though he is not in facto, the condition is broken. 5 Report Case Broughton. If an escheator may seize goods for a forfeiture, it is all one as if he did, when he will he may. A husband hath a term in the right of his wife, 18 E. 4. 28. 50 Ass. 5. and is a debtor to the King though he die, this term shall be charged to the King, the same law of one joint tenant debtor. Tenant in tail, because it is in his power to dock the remainder upon this, 6 Report, Sir Anthony Mildmais Case. the law takes this as done, and for this reason puts no value upon it, as Assets to an heir, &c. 19 A non posse ad non esse bona est argumentatio. The condition is, if a rent is behind and no distress, he may re-enter, he demands at the day, and the door is shut against him, Pasch. 23. Eliz albeit a distress is in the house, because he cannot come to it, the condition is broken as if no distress were there, see if request shall be to open the door. 20 Act me invito fait nest mon act. I chase dear out of my land with a dog, and after I recall the dog, 43 E. 3. 8. but he notwithstanding pursues him and kills him within the liberty, I shall not be punished for this within the statute. An assize of Common is brought and hanging this the Plaintiffs cattle escape thither, F.n.b. 180. 33 Ass. 9. this shall not abate his Action. 21 Argumentum à minori ad majus tenet affirmative. Upon this reason a Proviso in the statute of ordinaries extends to the High Commission, 5 Report Case Cawdry. which is above them, and the contrary is also true, as a statute which speaks of deans doth not extend to Bishops. So the Statute of 8 H. 6. which speaks of Clerks raising Records, a Judge is not within it. Institutes 3. 72.& 20. So in expsition of Treasons this argument doth not hold the less is made treason. Ergo the greater, &c. 22 Bonum publicum privato preferendum. Upon this reason a man may dig in my soil to make Bulwarks against enemies of the King. 36 H. 8. Dyer 60. 8. E. 4. 19. 13 E. 4. 9. Lynius 35. Plo. 322. 21 E. 4 47. So fishers in the sea may come upon my land, &c. Its lawful to break a door to find a fellow if felony is done. Upon this reason the Civillians say, Si piscator ligat navem ad arborem dominus arboris eam incidere non potest: upon this reason it was that the King might cut my trees for repair of his Castles before Magna Charta. And if the King grant to a County or Hundred, that they shal not be Jurors in inquests, it is voided, because public prejudiced. 23 Causa qualis tale Causatum. I covenant with one,& his executors make a lease of B. Acre before Michael. and the Covenantee dyes before Michael, and I make the Lease to his Executor, this Lease shall be in the same degree as the Covenant was, Plo. 292. Case Chapman. and so shall be to the use of the testator, and Assets in the Executor, the same Law is if an Executor have a villain who purchaseth land, he shall have this as he held the villain, &c. fallit regula, In case assize is brought oyntly against father and his daughter, and the father says he is villain to I. S. howbeit shee is of the like quality, 10 Ass. 7. yet this plea shall not be material to her. 24 Causatum non excedit suam causam. Tenant for years grants a Rent for life of the Grantee. He shall not have fre● hold in this Rent, but if he die within the term, the Rent shall cease, and shall be as if granted for so many years as the Grantor hath, if the Grantee so long live, Plo. 524. 15 E. 4. 8. Plo. 555. but see ibid. that for necessity of reason, and by fiction in Law, it may be otherwise. 25 Causans damnum equalis facienti. If one break down a gap in my hedge, 9 E. 4. 4. by which beasts escape into my Close, from the Common adjoining, now the trespass which at the first was onely 4. d. may bee 20. lib. by the ensuing damage. Two combat, Stamford 17. and the one kills the other,& this was by reason of the words of a woman; shee was arraigned for this felony. trespass for burning the plaintiffs house, 48 E. 3. 25. & declares that it was burnt by negligence of the defendant and holden, a good count to maintain their writ. If the party shows other goods then he ought to do in a Replevin, 11 H. 4. 91. or in a Cap. sa. shows a man to the Officer, he shall be charged in trespass, and false imprisonment, and so shall the other too. sometime the Law more punishes the causor then the actor of an injury as a Capias issueth where it ought not, Michel. 23. H. 7. Kell. Pla. 5. he that took it out shall be punished, but the sheriff excused. 26 Conjunctive, and collective, words taken seorsim and discretive. Three men submit themselves to arbittrement of all matters betwixt them and A, this shall be not onely of matters they have jointly against A, 2 R. 3. 18. but what either of them hath against him. An estate is limited to two.& if they die without issue, the remainder to another in this case, upon the death of either of them, the estate as to his part shall go to the remainder man. several demises and rents are in one Indenture of lease and lessee Covenants, 16 Eliz. Dyer Case, Clatches. to pay reditum praedictum, No lib. d' Entries 115. this Covenant extends to all the several rents: Two grant omnia bona, so A. releases to B. and C. all actions, 19 H. 6. 6. this extends to their several goods and actions, as well as joint. Three several men make three several Covenants, and in conclusion of the Indenture one is bound to perform the Covenants made 11 H. 7. 6. betwixt A. I. and S. This doth extend to the Covenants separatim. A scire facias is against the successor of a Prior of D. 17 E. 4. 2. and shows a recovery against his predecessor and part behind in his own time. Et quod non redierunt, &c. and this ruled good. See Dyer 150, 26 Causa cessant cessat effectus. If the offence is pardonned, 37 H. 621. 5 Report Case Vaughan. 36 H. 624. 15 E. 4. 17. for which the sheriff ought to be amerced, no amercement shall be. The husband and wife lease by dead, he dyes shee accepts the rent, if the Lessee lose the dead of lease, she shall avoid the lease, for this was the sole cause she was estopped, &c. The Feoffor shall have and hold the Charter of the land against the Feoffee, by reason of the Warranty, 1 Report 2. 4 Report. Case Acto●. but if this determine he shall hold them no longer, but note it is cause executory is intended, as Annuity granted pro consilio. I grant to I. S. that I will claim nothing in the Mannour D. of which the Grantee is seized, and for this he grants me an Annuity, 15 E. 4. 3. in this Case the entry of the Grantee will not cause the annuity to cease, and see ibid. A good Case of an Advowson granted for an annuity. 24 E. 3. 53. 4 Abbot and Lewes Case. And note it is not in the power of the Grantor to cease his own grant, as if he will say to the Grantee he will not have his counsel, the Annuity shal continue, though Richel in 7 H. 4. 16 thought otherwise. A man grants to make a new pale for the old one, if he cannot have the old one, he is discharged to make a new one, yet in Pigots case, if he can have an Action for the old pale, he is bound to make the new one. 15. E. 43. 5 E. 4.& Note another difference, where the Office determines for which the Annuity was granted, that shall cease also. see 12 Ass. 41. 20 Ass. 27 E. 4. 10. 49 E. 3. 45. 1 H. 4. ultimo. Note another difference. Plo. 381. It must be causa not circumstantia, which causes this Cesser, and therefore where Covenant is to make Divine Service in the house of the Grantee every Sabboath day, though the Grantee depart with the house, yet the service shall be done. 6 H. 41. But if the cause cease but in part, the whole Annuity shall be lost. The King grants the office of a Keeper to two, and the one fails in discharge of his duty, the the whole fee shall determine. So if Annuity is for counsel to two, Plo. Case. nevil. and the one refuse, fallit haec regula, as where a Guardian in Chivalry hath the body in ward, and there be other lands in Soccage, the next of kin shall not have this land in Ward, Plo. Case. Carrell. though the body of the Ward is to another( which is the cause) but the next of kin to whom it cannot descend shall have it. Arbitrement is to pay ten pounds for six yeeres, to educate B, B. dyes, yet the payment shall continue during the term, Dyer 329. process agard to the Coroner for cozenage to the sheriff, who after becomes out of office, and another put in, 14 H. 731. 18 E. 4. 3. yet the process shall continue to the Coroners. Vide more of this matter and title, 4 Mar. Dyer 141. Kell. 124. Davis Reports 3. and Case Lutterell 4 Report. 27 Coliquintidae parum totum Jus vitiat. A svit is in the spiritual Court for wood, tithable, if any part is free from tithes, a prohibition lies for the whole: if for part of the action, though the less part, 11 H. 489. jurisdiction ought not to be to the Court where it is begun. It shall be outed for all. A bond is made upon a usurious contract for part, all shall be avoided. In 33 Eliz. Case Paramor and Robinson. 22 H. 6. 6. If my counsel labour jurors, he is a mayntainer ab initio, even for his counsel. Husband and wife do vary in the declaration of uses for the particular estate as for life, and concur, as to the fee it is voided for all. 2 Report Case Beckwith. Divers Covenants in an Indenture are voided, because it is concerning a grant of an office contrary to the statute 5 E. 6. and one Covenant therein is good yet the bond to perform Covenants is voided for all. 1 Report. 82. call. Colshill. Superstitious use intermixed infects all the good, 2 Report 113. so covine. 28 A Conjunctis ad devisa male arguitur, as the Ordinary may take a refusal by all the executors, 9 Report Case ●enlose. ● H. 7. 19. Ergo, of any is false. One is heir to husband and wife, Ergo, to the husband is a non sequitur. 29 Conjunctorum utrumque oportet esse verum, and performed, as where the condition of a bond is double, so the consideration of assumpsit both shal be performed. 44 E. 4 21. 4 Report Case Digbie. A licence recipere& retinere, both shal be done, leaf is& bond to pay 10 li. rent if no restraint be of sowing& making woad, and after a Proclamation is to prohibit sowing of Woad, he shall pay his rent in this case. T. 32. ●liz. Rot. 431. Case Sherwod. Rent is granted out of land in the tenor and occupation of I. S. though he had it all in Lease, if he have it not in occupation, the land is not charged. 30 D●mnum asque injuria, is not punishable. 11 H. 447. 22 his 14. 7 E. 3. 65. As if a schoolmaster erect a new school to the hurt of the former Master; so if a new M●ll is set up to the prejudice of the ancient one to which all within the Town resorted before, no action lies, so where arable is laid down to pasture, by which my ancient pastures give not such a rate as formerly, or agisment not so much. 31 Sic è converso in●uria absque damno is not actionable. A man is affied to a woman, and when the banns are published in the Church, another forbids them, saying, that he hath another wife, which is false, this is Injuria absque damno, Trin. 5. Car. Case Ap. joh● because he may compel her to mary him being affied. I may enter into your close, and put out Savages, Michel. 12. H. 7. Kell. 2. or your own cattle out of your corn, which have escaped in by your own fence. 32 Deus& natura ferenda. If the water change his course, and run upon my Land, 22 Ass. 93. the common road shall be there as before. 33 Dictum parts, is not exclusive taciti dicti legit, Lessor Covenant Lessee shall have fuel by his assignment, he may take it without assignment. Dyer 19. 44 E. 3. 18. 40 E. 3. 10. A rent is granted to distrain for this by the bailie of the King, yet he may without him. 34 Disjunctorum sufficit alterum esse verum. It is pleaded the Bishop& his predecessors have used to grant such an office, 10 Report 59 Case Evesque-Sarum. Tali person, sine personis as he pleaseth; this is no affirmation that he had granted it to more then one, so that issue can be taken upon that, but the plea is true, if he had granted it to one onely. 35 Distructio facti, shall be eodem modo quo creatio. A specialty must be avoided by dead, 7 E. 4. 15. 5 Report Case, come. Rutland. an use declared by Indenture shall not be altered but by indenture, yea, though but in abatement as resceit of parcel upon a dead shall, not bee admitted without dead of it, 15 H. 7. 10. otherwise it is where matter of fact intervenes, as in covenant before he can have an action: so in case of a rent because of distress is to be payment is a good plea without dead, 21 H. 6. 33. 6 Report Case black. ● H. 7. 33. and so is it there, though he bring a Writ of Annuity, quod nota. A man is bound he shall not occupy my land in D, I after let it unto him, this is not to purpose to save his bond without writing: and yet matter in fact will aid an imperfect writing to make it good, as where an Acquittance was pleaded to a bond, and upon sight of it, it reherses it was money due upon Purchase of Land now by an Averment that this bond was taken after the money due for the purchase, and agree in the sum, 3 H. 7. 14. by this the Acquittance is helped. 36 Dictum parts, which is no more then dictum Legis operates nothing at all. Lease is for life, and the Lessor grants the Rent to A. for life, 26 Ass. 38. in whose hands so ere the Land shall come, this is no more then for the life of the Lessor. A gift is to two of land, and uni eorum diutius, viventi, they make partition and the one dyes, the survivour shall not have his part by these words, and uni eorum, &c. which is no more then the law would have said. A bond is to do such an Act( if the law permit) its all one, 30 Ass. 8. as if it had been to do it absolutely: see 9 Report, Flowers Case. 4 Report Case Burrow. 2 H. 7. 9. aliter casu. 12 H. 8. ●. As a man charges his executor to pay his debts, by his Will by these words, the debtor may sue a man in Court Christian, quod quere, by the allower of this book. A bond to household-stuff A. if be please, though the law says as much that he cannot be enfeoffed against his will, yet it hath this operation, to alter the law in this, that the obligor is not bound to make this feoffment till A, signify his mind, &c. The Statute 21 H. 8. says, that he who takes a second bnfice, the first shall be voided, which the ecclesiastical law said before, yet this operation is by this express saying of that Act, that it shall be voided without notice, where value is above eight pounds. Vide 17 E. 3. 7. Dyer 46.& 264. Perkins 105. 38 Dominus& Servus, Judge and Minister, Subject and sovereign, Idem non erit, so Judge and party. A woman is Guardian of the Fleet, Plo. plaits case and takes one of the prisoners to husband, this is an escape. If one hath a bnfice and is made Bishop of the said diocese, 5 E. 3. the bnfice is voided. He which is Justice of the Peace is made sheriff, the Patent of Justice determines. A man hath an Annuity for service to the Prince of Wales, he is made King, the service shall cease he is no longer Prince. Plo. Sir Tho. Wroths Case. ● Eliz. Dyer 197. Remembrancer is m●●● Baron of the Exchequer, this causes ●is Office to cease. So one shal not be Judge of the Kings Bench and Common Pleas. Persey arraigned an assize, with other Plantiffes, and after he was joined in Commission of assize, and ruled that no proceeding can be upon this Commission. ●5 Aff. 3. A Charter to hold, Plea, licet ipsemet sit pars, &c. Is not good if there be not words to make another Judge when such a Case happens. 8 H. 6. 20. A Constable may apprehended him that breaks the peace upon himself, 5 H. 7. 6. but that is because it is an offence to the crown more then to himself. sheriff is Judge in redisseisin yet he himself returns the panel, so Judge and Minister, but the reason is because he is made Judge by statute, Kell. 85. not as the sheriff, but a person described by this name. By the Civill Law a Judge may punish an injury to himself imprisonment or mulct, Boden 309. said si pars verberibus aut capite mulct anda est propter in●uriae atrocit atem abstinendum est. A Writ of Error in the Exchequer is directed to the treasurer and Barons, Institutes 4. 105. comanding them to have the Record before the treasurer and Chancellor, and good. 38 Dignior dat nomen rei,& regulabit eam. A grant is of the Office of the Kings Tennis Court, &c. 8 Report Case John web. The play of the household is included, and that onely gives the name. Where speech is of I.S. it shall be taken the father and not the son. Where speech is of a Will, it shall be intended the last Will where more Wils are, Dyer 314. &c. 40 Duty once discharged is always discharged. The Ordinary once refuses a clerk for insufficiency, 10 E. 3. 26. he is not bound to take a second examination of him. 41 De non existentibus& aliter existentibus, quam lex vult eadem ratio. If a Record is removed into a Court, 44 Ass. 6. but not by due process and course of law, its all one as not removed. 42 Aequipollentia habent eundem in lege vigorem. A Writ comes to the sheriff to arrest A. which was in his custody before, 5 Report Case Frost. and upon the escape of him an action upon the Case is brought, and declares that he was arrested, &c. & been. A Writ is to the sheriff, and he returns that virtute precepti, 16 H. 7. 16. he hath done so and so, and been and equipoll, virtute brevis, &c. In a Writ it is said, quam clamat esse, jus, this equipoll fee-simple, and therefore if in the following part of the Writ he instance in a lesser estate, 39 H. 6. 58. as ex dono for life, or, &c. The Writ shall abate, Vide Plo. 542 555. Dyer 171. 203. 17 E. 31. But note this exception to this general rule, that words of art shall not be supplied by equipollent words, as voluntary, & ex malitia praecogitata interfecit, is not sufficient in Indictment of murder, but the word murder avit, must be. 9 Eliz. 2●1. 2 H. 6. 11. A Writ against M. late wife of Thomas come. A is all one as if he had called her countess of Arondell. 43 Eadem ratio, Idem jus. So Bracton de similibus à similia eadem ratione procedendum. The stat. which outs non claim in fines, by reason of wars, takes away also non claim in a Writ of right, Plo. 59,& 16● for the same reason is &c. 44 Expressum& particular facit cessare tacitum& general, 28 H. 8. 15. In this notion it s said a dead is a private law amongst parties to it. By the word demise assignee of a lessee for yeers shall have an action of covenant if he is disturbed, but if there is an express covenant in the dead, that the lessee shall enjoy the house demised, &c. without eviction of the lessor, 4 Report Nokes Case. this shall restrain the covenant to the lessee himself. An Abbot brings trespass against the person of C. and declares of cutting trees, ad deteriorationem Ecclesiae praedictae, though every Abbey is a Church, yet because it is not name before, 18 E. 2. ff. 6 Report 828. this refers to the person which was name, and so makes the Writ insensible& abate. A man devices land to his eldest son, the remainder to his younger son, Hill in jac. c. 9. Casu Porriman by Bridgman. the remainder proximo de sanguine of the devisor, the eldest shall not take by these general words, but any other not name before. A. hath two messages, and demises that in D. and all his land in S. to I. S, the messages in S. shall not pass. Ibid. Exception. Note, where that the express is against the nature of the estate, as a gift in tail, and an express clause is, he shall not do waste, or suffer a recovery, 21 H. 6. 14. Perkins 660. 6 Report Case Sir Anthony Mildmay. 2 E. 4. 5. or that he shall hold of the Lord Paramount, these shall not cross the implicit dictum legis, in those several particulars, and it is also in things inseparable. As Warranty by dedi is not destroyed by express warranty. Sic regula fallit in casu, 7 Report Case N●kes. the thing is inherent to the estate, as covenant express is the lessee and his executors shall repair the house demised, &c. This shall not excuse the assignee who by implyed covenant in law adherent to his estate, 5 Redort case 23 Broughton. is tied to repairs, except also in case of matter of record this, though implicit will control the express act in facto, 5 Report Cap. Vernon. as a woman enters into her jointure,& then brings a ●rit of Dower. So where the express act is vain it shall have no such operation. See Dyer 376. Kell. 123. Doctor and Student 94. And so it is also where the express act or word is additional, and not contradictory of the first, 18 Eliz. Dyer 348. as a device is to pay ten pound rent to A. and if it is behind six weeks, &c. that A. may distrain, this shall not avoid the entry upon the condition if broken, but it is variety of security for this rent. So where that which is but secret is dehors, there both may stand without the one outing the other, as blood may be averred to have been the consideration to raise an use mentioned in an Indenture, 1 Report Case Mildmay. though money only expressed within the dead. 46 Exceptio firmat Regulam, concessionem, &c. A man holds by homage, escuage and rent, the Lord grants the rent cum pertinentiis, 29 Ass. 20. 23 Incidents 24. the Seignio● doth not pass by this grant, but if he h ● said( excepting relief and escheat 〈◇〉 doubted. Common is granted for all c●●●● excepting hogs, this exception enlarges this to goats, &c. A man grants all his trees excepting payr-trees, apple-trees, now pass, 14 H. 8. 1. 2 .2. R. 2. which otherwise would not. The statute of 23 H. 6. speaks only of Sheriffs, yet because in the end of the statute there is an exception of Guardian of the Fleet. It is holden all other Guardians are included as well as Sheriffs. 22 Eliz. Case Yastley. 11 Report 74. But note, fallit haec regula, where the exception is idle. And therefore though the statute 5 E. 6. hath an exception that engrossing of salt shall not be within that statute, any engrossing of victuals, yet, non sequitur, it is victual within any statute, for it is condimentum onely. Michael. 7. Car. in b. Roy. Information. And such clauses are put in to satisfy ignorant Burgesses; rather then for necessity, so in the statute 43 Eliz. cap. 1. there is an exception in that statute, which provides against alienations to the King, in case of ecclesiastical persons it follows not, therefore that other persons upon whom a disability was by law before to alien as infants mad men, &c. May now give away their estates, because ecclesiastics are onely excepted. 47 Aetymologia verborum non praebet firmum argumentum. Dyer 340. Institutes 177. 7 Report 27. And therefore to argue from the word jointure of a woman, that therefore it must be a joint estate with her husband is a fallacy, for its a good jointure though the estate be to herself sole, yet such arguments exhibits ornament in the discourse, where it is agreeing with the law. 48 Exitus acta probat. The copying out of a libel proves as evidence that he did publish it. 8 Report Case Lamb. 7 E. 4. 4. 9 Report 11. The tenant is distrained without the mesnes fault, yet if he after does not what the law requires, as putting his own beasts into the pound, for to free the tenants beasts, the distress shall now be said in his default. See 9 Report, Case Meriell Tressam. And vide, the Case of Estray, and how it shal be demeaned that it prove not tortuous. 8 Report 146. So in those cases of liberty given by law, as to come into a Tavern to drink, and he take away a piece of plate, this shows the act of coming in tortuous ab initio, &c. 49 Expositio verborum. Averia is any live thing as fish, hens, capon, &c. Aut, V. lib. entries 138. 21 H. 6. 39. albeit it is a disjunctive adverb, yet in the Kings case it leaves his genuine sense, as where he grants land, &c. Quae quidem terra concelata, aut reditus substracta, &c. If the land is not concealed, though the rent is substracted, 11 Report 113 Case Hugh Vaughan. and so the disjunctive, aut, is performed, yet the land passes not. A, ab, abs. Ab octabis Trin. is the last day of the four, 21 E. 4. 37. à festo Paschae, must be ruled by the Canons, Abathia. In Abathia, this extends onely to the Precincts of the Close of the Abbey, and not to all the possessions of it. ●9 Ass. 55. Charge. A man covenants to free a purchasor of all charges upon the land, this extends to a possibility of a term, which yet is no title or right, ante hac usitate, 20 Eliz. Dyer 362. no. lib. entry 384. &c. Note in a subjects case these words, Will reach higher then in the Kings Case. Circiter. Is an incertain time, and therefore in case where certainty is required, Pas. 28. Eliz. Case Farrer. it is ill in pleadings, &c. and therefore Circiter 21 of Feb. may be as well be afore the day as after. 21 E. 4. 52. lib. entrys 152. Citra, infra. Circa festum, sic ante festum. These are all before the Vigils of the Feast, or in the Vigils at the least. Mich. 13. Eliz. b. 207. rot. 1330. A bond is made to stand to the arbitrement of I. S. to be made ante novum diem of October, &c. The arbitrement is well made any time before midnight of the 8 day. Citra, 50 yeers last past, 9 Eliz. upon ●endolf. was rejected because unusual, for the pleading is infra 50 yeers, &c. Condition of a bond is to pay so much money by Michaelmas next it shall be before the day. 9 Eliz. per Gawdy and Dyer. Competent. as a competent bnfice, the meaning of this word is to be found out by the annuity is to cease when such a bnfice is provided, and not in reference to the persons quality to be provided for, as if the annuity was forty shillings per annum to the Chaplain of the King, till provided, &c. Of a competent bnfice ten marks per annum est, adjudged competent in this case. Consueta. 6 Report Case Molins. It is taken for a thing anciently, used albeit now at the present it is discontinued &c. Discretion comes of upir● judico, so Jurors put themselves in discretion of the Court, that is, 8 H. 4. 12. 5 Report Case Rooks. upon the judgement of the Court in point of Law, it is taken for that act of the Judge arises in case of extremity of Law, and amounts to as much as if he had said that the Judge shall do according to the Law and right reason, Vide Plo. 83. when it's said in Statutes, &c. that he shall do according to his discretion, See 27. H. 8, 25. Fitz James discretion mentioned, see 10. H. 7. 29. where it's taken pro concilio. Donque, then tunc a licence is made to go over sea, proviso if he resort to fugitives, then to cease he breaks the Covenant, then here is expounded, for thence forth and not ab innitio, 2 Eliz. Dyer 177. P. 5. Car. Case Mason. action upon the case, consideration is quod tunc he deliver a horse, &c. It's well done any time of the day after. Plo. 192. F.n.b. 194. Demise signifies not onely the original Lease which is made to the Lessee, but the relinquishment, grant or assignment of any thing, as in the Writ, in the per, it is said, cvi A, this demise in case of fee simplo granted. Et, This conjunction in our Law, hath sometimes the sense of vel, 8 Report Case Pexall. Register 125. & sic è converse horrible and enormous taken for or enormous. A bond is upon condition, if he pay part it shall be voided, and also upon condition, that if he suffer the Obligee to enjoy such a Mannour that the bond shall be voided, the performance of either of these causes will avoid the bond, 9 Eliz. which prove and or& is taken in the sense of or, A rent is reserved to the Lessor, or his heirs, this rent is good to himself, and or is not disjunctive here. 5 Report Case Mallery. A man devices Land to G. S. and if he die before 21 yeers of age, or without issue, to remain to a stranger, Eliz. 20. jac. in b. R. cited. per Dod. I. he dies before 21. but hath issue, adjudge this word or, shall be taken for and, and both must fail, otherwise he shall have no benefit of the remainder in this case, See Plo. Manxels case, fol. 5. been 4 Report, Ogn●ls case, and 10 Report, Vaughans case, cited in legates case, Instituti. 96. 8 Report Pexals Case. Expiration, Plo. 198. is properly by efflux of time and differs a fine rei. Esteant, or being. 27 H. 8. 17. 19. 1 these words will extend to future times, and are not tied always to the present tense. 16 Eliz. Dyer 333. A man deviseth his land shal go to the next of blood ( being males) It shall be construed in the future tense, that shall be males, &c. Exactionibus, is all things in action, 11 H. 4. 7. and as large as Demands in a manner. Est& fuit. 8 H. 6. 27. 10 H. 7. 27. Sometimes taken in the same sense, as if maintenance be laid in a plea, quod fuit, betwixt such and such, in law its taken for which is. Eviction. A man is bound, the obligee shall enjoy such a house, or, &c. 5 Report tempore Eliz. without eviction. Pursuit in Chancery and a decree thereupon, &c. is no such eviction to forfeit his bond. House. 16 Eliz. Dyer 333. A remainder is limited to the house. In law the family, and the chief and most worthy or eldest of it, is meant. Horrible and enormous. Ietus unus non dicitur enormous, Register 125. F.n.b. 185. if maim, &c. is not by it. Vide Stat. W. 2. cap. 29. hath the word. Incontinenter& in mediate, is as much as eodem tempore. F.n.b. 198. Institutes 1. 369. And therefore lit. 702. says if disseis●n be and a feoff made Incontinenter garr. created upon that is garr. by disseisin. See 6 Report 11, there its expounded by reasonable time. A bond is conditioned to pay plaintiff, 39 H 6. 10. Institute 1. 208. and no time limited, the law says it shall be incontinently payed, now this in legal construction is inconvenient time, and so it seems shall it be, though the party himself says in express words, he will pay the money incontinently or presently. If no heir be at the time of discent of land, but one is born with in an hour after, this is not presently as to make a discent to take away an entry and yet he shall have it as heir. A man takes base money in payment and discovers this immediately, 5 Report Case Wade. 30 Ass. 11. yet he cannot refuse this, having once accepted of it. It is said where a dead is absolute, and a defeasans is delivered immediate, it is good and all one as if it were within the dead itself. Coven is to deliver cloth& that immediately upon the delivery of such cloth to pay him 10 pound, 18 E. 4 20. 21 E. 4. 53. per Sylyard. the cloth is delivered at noon, the other hath all the day remaining to pay the money. immediately sometime is by good construction, observing all incidents to such an act &c. to be done. See Stat. Winchest.& 27. Eliz. 7 Report Kens Case. of immediate notice, and action Burnel the same sense ut hic. Infra quatuor Maria. is taken to be within the Realm of England, and doth not fetch in or intend Scotland, &c. Institutes 1. 107. Inhabitant. Resiant, Commorant, Conversant, the genuine sense of these words are very necessary to be known, by reason they are frequently used in several statutes, as in that of election of Burgesses to the Parliament, 1 H. 5. 23. H. 6. and in the statute of Rogues, &c. The original in the Greek is {αβγδ}, which is, properantem Commorari, apud aliquem morari, and in Buckleys Case, Plo. the word in the statute Resident is in the Record and pleading of it in Latin, translated Commorans, vel Conversans, the first comes of morando, which signifies dwelling for a time, or to sojourn, and it is rather loitering then habitation. Conversans is to haunt much in a place, the original imports to abide for a time versari in acie, and yet note the word there Resident is in the record Commorans and Conversans. The word Resident comes of {αβγδ}, resideo, and imports as much as to light or to sit down as a bide after her flight, which may aptly be applied to Rogues, but what time will make resident is dark yet by these expositions, but it seems a small time will do it, in French it s nearer our law sense, assis locatur idem cum assiduitas, which intimates that such a one will continue in such a place for the time to come, then that he hath been long there before. The condition of a lease is, that the lessee shall inhabit and be resident upon the land during the term, if these words during the term had not been in, Plo. Case. Colthirst. it is adjudged that the abiding a small time there will serve to perform the condition of abiding and resident. A man hath his family upon a house or no family, but occupies lands in Dale, the first is said a Resiant, Ibid. the second an Inhabitant in our Law. svit real which was better royal, 5 Report Case jefferey. is said due of the body of a man, because resiant there within the Hundred, and note no certain time is limited in such case, ●5 E. 3. 23. for if he have been there three dayes he shall attend. A Charter is granted that Inhabitants shall have franchise, it shall not be extended to fugitiv●●, as this book saith, &c. See Fitz-Herbert N.B. 160. A faith that a man shall not be distrained to come to a leet where he is not demurrant and conversant, if a house is in two Leets, Institut. 2. 122. he shall attend that where his bed is, for there he shall be deemed most conversant. Vide Fitz. N.B. ibid. in the Writ for discharging a man to come to a Leet it is, illi qui moram non fecerint, shall not be put in juratis, &c. by these reasons and authorities you shall better conceive the right sense of these kind of words, about which such various opinions have been in Courts of Record and Sessions in the Country, &c. In apud ad, de, &c. all these have the same sense in several cases. trespass upon the statute of 6 R. 2. 9 E. 4. 3● for intrusion into the Mannor of D. apud D; it is as much as in D. and the venire facias shall be of the Town of D. yet the Indictment was for an affray apud Ecclesiam de D. and it was doubted if good, but it should be in Ecclesia, otherwise by the word apud it may be without the walls, P. 36. Eliz. Capt. Knevit. and the statute is penal and the word in the Church, &c. A grant of a rent charge percipiendum in Manerio de Dale, and apud Manerium and both good. 10 E. 4. 8. 41 E. 3. 16. Assumpsit was to deliver goods in such a Port, and in pleading he says, Hill. 33. Eliz. Keisers case. adtale portum, its sufficient, so where its said such a thing shall be done in festo, its as much as the first day of this feast, and shall not be deferred till the utas of it. 21 E. 4. 52. A Writ is directed Coronatoribus in come. It is as good as de come. F. n. b. 245. Vid. lib. entrys fol. 1. And so abjuration pleaded coram Coronatoribus in come. was holden good contrary to the opinion which ex subito hath been taken by some. Dyer 185. Interest, any profit as Common &c. is interest. In manibus, a man device all his tenements in manibus suis, 34 H. 67. 8. and hath a reversion upon an estate for life, this shall pass for the word denotes onely a thing in my subjection and power. Dyer 291. ind imports all things spoken of before as thus, Si judicium judas redditum sit, &c. this is to be taken upon the whole record, 18 Eliz. Dyer 349. &c. In rerum natura, he which is dead in law, as Monk, &c. so he which is out of the Country where, &c. is in law said, not in rerum natura. Ipso facto. Such a thing shall be, Stat. E. 3. as he which draws a dagger, &c. shall be excomenge ipso facto, Dyer 275. it is doubted if it shall be without sentence or proof, but the statute of Henry the eighth, which says, he that takes a second bnfice, &c. shall be ipso facto, 4 Report 79. 75. or ipso jure privatus of the first, this is without sentence. Juxta. The thing may be twenty foot remote from the place to which its said Juxta. Juxta Hull. 19 Ass. 6. 14 Ass. 8. 45 E. 3. 3. This imports the place is another then Hull, and remote from it. Infra, is all one with Ante. 21 E. 4. 63. As to pay money infra Festum Nativitatis Domini, is before it. Maereneum. Is this timber which hath been part of a house, or else aptum ad domum, seems framed for such a purpose yet see ib. Register 94. 96. It is used for timber in other building. In the Dictionaries it is written merene●●n,& est idem quod tignus, timber to build with. Institute 3 97. Institute 4. 307 In old French Mareme Latin Mareneum lignum aedificatorium,, and its said a Norman word. menial servant. 22 H. 6. 19. Is he which is employed in the house for to serve the person of a man. So old book entries, fol, 434. of servus familiaris for menial servant. F. n. b. 197. Nuper est expound le jour aute le mort de Auntestor quod nota, no long time is required to this. 17 E. 3. 16. Pacatione. An old word used for a release, as where its said ten pound was payed in Pacatione of a hundred pound, Vide old Magna Charta 153. the word for payed. F. n. b. 93. no. entrys 2.& 109. 9 Report 56. 21 H. 7 38. Praetextu. Is used in law for real and good matter and of equal force with virtute cujus, or ratione cujus. Prima& proxima. Where it is said the jurour who hath lands nearest to twenty pound, &c. Is not intended nineteen pound, but the nearest to twenty pound till it descend to forty shillings. I grant one twenty pound at the birth of my first son, and I have a son at the time of this grant he shall not have the twenty pound till the birth of another son. 12 Eliz. per Harperum. Pacifice. I am bound you shall enjoy acre B. 30 H. 8. Dyer 43. pacifico, &c. albeit he be distrained for issues lost, this is no breach of this bond. Pro. The sense of this word is not to have one thing for another, but the thing itself sometimes, as if I promise to content you, pro granagio, Dyer 352. this is taken that I shall pay the very granage itself, and not money for it, &c. Forfeiture of all a man may, Institutes 391. this in law is land, goods, and body to be imprisoned, when such expression is in a statute, &c. Puer. comprise female as well as male, maxim in the Dative case plural, Dyer 337. 30 Ass. 47. 9 Report 72. Nos. Vos. Is stylus aulicus, said non antiquus, and intimares, quando Princeps loquitur ex curiae consilio, Parens in Genesin, 272. and it is not to be found in all the Scripture given to any Prince or single man, and upon like reason it seems, Bishops used it, and the Chief Justice of the Bench, coram vobis& sociis, but because it was given to a sheriff in a Writ, thus praecipite I. S. &c. 29. E. 4. 44. the Writ was abated. Permittere. Imports mere passive, Dyer 255. 35 H. 6. Fitz bar. 261. and he that is bound permittere onely need do nothing, and violence by him is to have advantage of a condition by which a breach is, will excuse as if the bond is that he shall not permit A to inhabit in such a house, and the Obligee him put in, &c. he who is so bound becomes a bankrupt, by with the house is sold, and another is put in, see whether this breaks the covenant when he hath done an act by which in law the breach follows, 12 H. 8. 6. 17 E. 4. 2. that the other cannot dwell there. Si lex pe● mittat, is if by any licence the thing can be done, or dispensation after then it shall be done, &c. F. n. b. 41. 3 Institut. 182. Res is a good word for goods and chattels, and goes to corporate and incorporate things. 15 E. 4. 15. Sufficienter, a man is bound to serve in Normandy, Sufficienter, is with armor, &c. Sure estate, a man is bound to make a sure estate by force of this word he shall free it of dower, 11 H. 7. 7. and yet the estate may be sure without it. Similiter pro ut, &c. Where Jury finds the homage did similiter or pro ut, 21 Ass. 14. 21 E. 3. 56. the Defendant hath pleaded, &c. that goes to time and place and other circumstances as well as to the matter itself. Trin. 33. Eliz. Case, barns. Predict. This word hath various, effectual operations in our Law, by some books it is said of as great force and efficacy, as if the words themselves to which it refers had been expressed at large. A Cessavit is brought and declares of a tenor by homage, Rent, &c. 35 H. 6. 31. Et quod de praedictis serviciis Cessavit, &c. This refers onely to that service, 6 H. 7. of which in Law properly cesser may be. predict is not necessary where the matter appears, though it would have made it more clear. It will supply an averment to reconcile differences in the Record as Codred is in the beginning of the Plea, and after it is Cotreid predict, 10 H. 7. 5. 8. Report 57. this helps the variance. An Indenture is said, dated 23, December, and after it is said, per indentured predict. datum. 23. November, the mistake is helped by the word predict. The quality of a thing shall be well helped by this, and enforced, as where it is mentioned that land was conveyed which he had by discent from his father, mention after, Trin. ●3. Eliz. Case Graye. de terris praedictis will include all this. I surrenders copyhold to the use of A. for life, the remainder to I. S. for life, the remainder to the heirs praedicti Johan.& resolved it shall be the heirs of the later I. S. the purchasor, Pasch. 23. Eliz and not of himself, Assisse is against M. the Abbot de H. and the pone was predicted Abatissam, with one more, and the opinion that it shall abate, vid. 8. E. 3. 64. 26 Ass. 11. Paratus, paratus, respondere, within the Statute W. 2. &c. he shall be said paratus who comes at the time appointed by the Law, ●2 H. 6. 2. and not presently, as where a remainder depends upon a remainder for life, here he is in Law said paratus, if he come after the others which are mean and have made default. Expositio quorundam verborum& sententiarum in devices of Land. I. S. hath Lands in D. and also Rents, Court-Leets, dimes and common, and doth device to his eldest Son divers Lands by name, and then devices to his youngest Son all his other Lands purchased free hold and copy-hold, Trin. 9. Eliz. per Dyer. welsh& gaudy, 1. and it was ruled because in the forepart of the will, all his Lands were devised to the eldest, the rents, tithes, leets, &c. shall by those words pass to the youngest son. In 20 jac. in b. Roy case, Scatter good. 22 jac. Case Fox. A man devices all his living to I. S. and and judge his reversion shall pass. Item, I will and intend to device my Land to A, this is a present device of the Land per opem curiae. A man devices the fee simplo of his Land to his wife, and after her decease to his son Thomas, ●● Eliz. &c. shee takes for life the remainder to the son for life, the remainder in fee to the wife, but it is not executed to make a title, her husband to be Tenant by the courtesy. Et Cetera, &c. This will help in many cases in Law. In an action of trespass, quare bona, &c. and declare of a bale of wood, and ruled it is not good because in the singular number, Hill. 1●. H. 1. Keble. and the writ in the plural, but if this expression, &c. had been added, it would have made it good. A recognisance in attaint is, that if he do such and such things, quod tunc, &c. Dyer. per, &c. by these particles, the condition of the recognisance shall be perfected, which otherwise is not. Indictment is certified up to be capta, before such Justices ad pacem, nec non 'd diversas fellonias& alia malafacta, &c. &c. supplies the other particulars of the commission, Trin. 11. Car. b. Ro●, but in the the same case it was ruled, that such an Indictment certified capta coram, Justiciaris ad pacem, &c. was not good, and doubted if it were certified to be presented per sacramentum proborum& legalium hominum, &c. and doth not put down the names of the Grand jury if it shall be good. When a record is sent up in a Writ of error, out of an inferior Court, shows the venire facias was awarded, ad recognoscendum, &c. Trin. 11. Car. Case. Hambleton in b. Roy. At the Assize Ebor. 9. Car. by Davenport chief Baron. and sufficient without showing the particular issue, an &c. added to a prescription made it ill, and the plaintiff non suited, supper ind. Commodities, profits, emoluments, these words in a dead added to the land or Mannor sold extend to such things which yield natural profit, which an advouson doth not, Trin. 18. jac. in Comm. b. Case Loudor. Vide Chapter of Southwell. and therefore it was resolved it extends not to an Advow appendent, &c. to pass that without express words. sovereign, In Law it is no more but the supreme of a house, or a Town, &c. So an Abbot is sovereign of the house, and Claydon the Marshall of the household, 7 E. 3. 24. is termed there sovereign, in respect of the jailer and the command of such an one obeied, shall excuse the subject or inferior. 28 E. 3. 11. sovereign of the Town shall pursue felons, &c. this is the chief officer be it Constable, or &c. Subditus is one who is subject to the ordinary jurisdiction of another, Register 44. as those under the Diocesan are said Subditi in the writ of consultation, briton 19. W. 2 cap. 40. and the word is used also for any neighbour or inferior, within the distress of such a Court, but in a strict sense it refers to the Prince, so Boden, subditus plurium principum quisque esse non potest. See Dyer 360. Its said that one of Ireland is subject of Irelaend, and not of England, quod nota: and see Calvins case, 7 Report. Miniments. A word used in Conveyances, 35 H. 6. 37. it includes all manner of Evidences whatsoever, quasi Muniments. Old lib. entries 335. There it is said forger of false dead and Muniments. 49 Fictio juris neminem ledere debet. But aid much it may, and this is seen in all matters where the Law works by relation and division of an instant, which are fictions in law. 11 H. 4. 12. A Constable takes one which had struck another, and then sets him at liberty, the party strike dyes of this stroke, this is felony ab initio, but not to the prejudice of the Constable who suffered this escape. A feoffment is upon condition that he shall re-infeoff him, he grants a rent-charge, and the Grantee brings a Writ of annuity, now it is an annuity by relation ab initio, 3 Report Case Butler and B. 30 E. 3. 17. betwixt the Grantor and Grantee, but not to defeat the condition broken, quoad the Feoffor. A fine is levied, sur render the Conusee by fiction in law hath seisin in an instant to make this renderback good, but to no other purpose to the prejudice of the conusor, for his wife shall have no Dower, 2 Report Case Lord Crumwell. nor shall this land be subject to any statute, &c. in which this Conusee was bound. 50 Fortior est obligatio parts quàm legis. A man is bound by obligation to pay his rent, he ought to seek the Lessor to pay him. 22 H. 6. Dyer 33. 33 Eliz. A man is bound in a bond to repair a house, he shall do this against tempest, &c. and so also though it be ruinous at the time of the lease, which otherwise he is not bound to do. If the Lessor Covenant the Lessee shall enjoy the land demised pacifice, this extends to those, do interrupt him by wrong, Dyer 328. 40 E. 3. 6. whereby the word demise he is not bound. 51 Fortior est provisio legis quàm parts. The statute of gloucester which prohibits a man do no waste, it is expounded that he shall not permit wast, 11 Eliz. Dyer 281. Doct.& Stud. but if I be bound that I shall not do waste, my bond is not forfeited by waste permissive. 52 Fortior est dispositio legis quàm hoins. A man hath interest termini, he cannot this surrender, but if he take a new Lease in praesenti, this is a surrender of the old interest termini. And upon this reason it is that conditions in law are so strong, as express conditions. 10 Report 67. Litt. 378. 53 Fortior& melior est provisio Legis quàm hoins. Parceners, by the law are to have equal portions of lands tail and fee, now if one of them agree to take all her part of the tailed lands, she may suffer by this partition. A man is seized of three manners, of equal value, and takes a wife, and shee takes one entire mannour for her dower, which is charged with the rent shee shall hold it charged, 1 Institu. 17●. otherwise is it if she had recovered her dower, and had had a third part of each assigned to her. 54 Fundamento distructo cadit opus, à quare non admisit, is awarded, and afterward the original record is removed by a writ of error, now the other fails though it be disadvantage to the King, who cannot now proceed for the contempt but by Green, if he is attainted once for the contempt, the reversal of the first judgement afterward shall not aid him to avoid the contempt ut supra, M. 26 E. 3. placito 25. fol. 75. 43 E. 3. 18. an exigent goes out for felony, and after a pardon of ancient date to the exigent comes, and all things by the Law required are done, the chattels are saved, an excommengement is for contempt of a letter missive from the high commission, the contempt is pardonned, P. 23. Eliz. 6 Report 13. the excommengement is also exconsequenti: Execution is sued upon a Statute, and then the Conusee makes a defeasance of the Statute, upon payment of twenty pounds, if it is paid, the execution shall be defeated, 20 Ass. 7. as well as the Statute. vide. 43. E. 3. 18. 55 general nihil certum ponit, and is rejected in Law. A man is bound to device all his lands in the tenor of I. S. in the town of D. 2 Report 33. Case Dodington. the obliger may say, he hath no lands there, so a man is bound to be non suited in all actions that he hath in the Common-pleas, he may say he hath none there: otherwise if the condition be particular, as to be nonsuted in a formdon, 22 Ass 73. &c. Inditement is thus, that A. is a malefactor or a common thief, it's not good. 56 general words where they will help particular infirmities. As Scire facias is a 'gainst two several tenants, the sheriff returns Scire feci, the two modo& forma pro ut breve exigit, now this which was joint in the beginning of the return is now several and good by the generell words modo& forma, &c. So where a Sheriff returns that virtute brevis he hath done such a thing, 2 H. 4. 13. and in the sequel of his return are many imperfections, they shall be helped all by these general words, virtute brevis: 34 H. 6. see to this purpose of these words contra formam Statuti,& what imperfections will be aided by these words; so by the words secundum formam Statuti, Stamford 8 1. where it's said they shall have the force as if the very words of the Statute &c. had been punctually expressed. An information is upon the Statute of buying titles, 5 Report 7. Dyer 13. Eliz. 11 H. 4. 4 Case Barns and Hill Michel. 7. Car. in b. le Roy. and there is a mistake in the record of the day of holding the Parliament, or in the ending of it, but because the words contra formam Statuti were in the conclusion, that was aided in the misrepetition of the date, or day of holding the Parliament, which was vain. 57 general words in grants where they shall be restrained by particular words in the same clause,& contrary. 8 Report. 11 Case Carter. A man hath a mannor in O, and other lands not parcel of the manner, and suffer a recovery of all, and declare by Indenture that the use of all his lands in O, shall be to the use of A, this shal not be of the Mannor which was particularly mentioned before. A. acknowledges a fine of the Mannor of D. with an advouson, Temp. E. 1. F. title grants per Barkley. judge. 13 Car. 19 H. 6. per askew. and regrants the Mannor cum pertinentiis, the advouson shall not pass in this case. A Release to Jo. S, executor I.D. all actions now by this restrictive word executor no impediment shal be, but that this release shall have an operation upon all the capacities of I.S. The Obligee grants to the obligor, that he shall bee discharged of the bond, and if he is sued upon it, that he shall pled this as a Release: 21 H. 7. 32. It is a release presently without expecting svit, &c. 58 general discendens in particular sieve Speciale, shall be ruled by that special. A man grants a rent in the Mannor of D. 8 Report Case Altham. percipiendum in 100 Acres, parcel of the same Mannor, or distringendum in 100 Acres, this rent is charged upon this 100 Acres onely, Dyer 261. 9 Eli. so a man releaseth all demands, nec non title of dower in the Lands of W. this curbs the general word demands, and ties it to the Lands of W. onely. I. H, grants his Mannor S. in A. and B. 9 Eliz. Dyer 261. where this extends also into C. nothing of the Mannor in C. shall pass. A man devices all his Land in D. and the hamlet of I, this excludes that Lands in other Hamblets then I, shall pass though within the same Town, but note if the special is first put down in the dead and general word after that the Law is contrary, as when one is made Deputy Steward to take a surrender absolute, Trin. 26. Eliz. inter Adams& Fost●r. & ulterius facere omnia qua ad officium ejus in hac parte pertinent facienda, this enlarges his power, so that this Steward now may take a surrender conditional, &c. Vide 7 E. 3. 10. been upon this rule. 59 he that needs most let him blow the coal. Upon this reason he which is to have benefit shall do the first act. Vide antea, title Act, so where request is to be made, he who is to have a vail shall make it, &c. Detinue is brought of a dead of Release, the defendant garnish 〈◇〉, to whom this was made, &c. and upon showing the dead, the seal was debrused, and the plaintiff would have had damages, and ruled no, 29 E. 3. 31. for he hath no reason to complain of the debruser, &c. but he to whom it was made, and let him blow the coal if he will. 60 Integra lex separat& individua. A Charter may be allowed for part, because it hath been allowed in Eyre, and disallowed pro residuo. 21 H. 7. 29. In debt upon a bond against two, the one acknowledgeth the dead, the other pleads in abatement, and it was awarded the plaintiff shall recover a moiety. 4 E. 2. F. Tittle judgement 229. So a judgement may be reversed for part as a fine, for that it was ancient Demesne was reversed for that part and stood good for the rest. And note there is a special Writ of error to remove part of the Record, 21 E. 3. 20. Dyer 291. &c. 61 Idem taken pro Simile. So a limitation ad eundem usum was taken pro tali usu. Obligation is to pay 20 shillings at Michael. Dyer 13.& 233. Plo. Case. Browning.& B. and the year following 20 shillings at the same Feast. It is taken for the like feast. Vide 5 H. 7. 39. 40. Inconvenience, see afterward here fol. 63 62 Indefinitum supplet locum universalis. A man is bound, his Feoffees shall grant a Rent, or make a feoffment, all ought to join in this grant. 21 H. 6. 10. Plo. 30. A man gives bona sua in D. Its all one as if he had said, omnia bona dies, datus est partibus praedictis, its all one as if he had said omnibus partibus, a Writ is directed Coronatoribus Lincoln. E. 4. 1. Its all one as if he had said omnibus, and is not intended 2 or 3. The statute of Winchester is that the hundred shall answer for the body of the offenders, 11 H. 7. 11. Plo. 75. this is taken for all the offenders, and the taking of two or more will not serve the turn. See for the pleading of this Case onely four or five of the Inhabitants are to be name in certain, &c. 7 Report 7. Case Milborn. A tenant pleads that he is no tenant of the Freehold, and issue is joined upon this, and its found tenant but for part, and of the residue not, this is against the pleador. See 2 R. 3. 17. 18. 6 H. 7. 15. 1 E. 5. 5. 27 E. 3. Mich. 10. Car. inter Lee& Smathers. Exceptions. 21. This general rule hath several exceptions and restrictions. As in case the non observance of it makes for advance of Justice, as a tales, quails, &c. 10 Report Denbawd case. shall issue in favour of trials, though onely one of the principal panel did appear. See 12 H. 4 Tit: Certificate of Assiize 4. And hobbs Case, Institute 1. Upon the same reason, Vt res magis valeat. R. 2. granted to the Abbot of W. that he and his successors shall be Collectors of dimes granted per Clerum Angliae, this shall be taken for that part of the clergy use, 8 Report 56. 4 Report Case of Corporns. to grant such dimes which is the Clergy of the several Provinces. Prescription is that the mayor shall be chosen by the commonalty, by usage this shall be restrained to the principal of the commonalty, &c. A Common is claimed to a Mannor, it is by intendment all times of the year, but yet its not so strong as if expressed all times of year. Trin. 8. Car. Case Bullock. See 30 H. 6. 2. 8 Report 91. 21 E. 4. 44 Dyer 186. 21 E. 4. 44. 5. 6. 59 Ignorantia non excusat, nor folly, but a man shall have prejudice by this much. Lit. 261. Briton 62. The Clerk mistakes, debet pro detinet in a Writ, Ignorance is no excuse. If a man can red and will accept the declaration of the contents of a dead by one who declares it in a different manner, from that the truth in the dead is, This shall not aid him, 22 E. 4. 21. 2 Report Case Thorowgood. but he is bound by it. 60 Inter aequales melior est conditio possidentis. Upon this reason 'tis that he that hath an estate by wrong, shall hold against all others who have no title. If ten manors are conveyed to several persons by one and the same dead which of these happen to get the dead may detain it, where two several persons have each of them power distinct to make a lease of 4 H. 7. 10. such Lands which of them leased it first shall stand. A Lord allows six Chaplains by his Letters testimonial all are presented to six several benefice, Pluralities the three first promoted shall stand. Two attorneys retained conjunctem& divisem, 4 Report Case Drury. 12 H. 7 9. the plea of him first pleads shall stand. A Ser eant at Law brings an Action against an officer of the Kings Bench, the Common Place shall have the privilege. See 48 E 3. 20. 21. 13 E. 3. F. Assize 91. Where it is said that possession by half a day is not sufficient to gain a freehold against him is a tort fesor, &c. and so titles equal. 61 Iteration of a small offence will make it amount to a great one. As if a jailer permit several negligent escapes, this will grow to be in judgement of law as much and as high a crime as a voluntary escape. 39 H. 6 33. 62 Injuria propria non cadet in beneficium facientis. A water runs upon the land of I.S. he stops it, by which my land is surrounded, I may enter his Close and debruse that which stops the water course. 8 E. 4 5. Lessee for yeers pulls down his house, he shall not have the timber was in it to re-edify it, as he shall when its blown down: the same law is if he cut down trees he hath lost his special interest in them for shade, 4 Report Case Herlaken. &c. A man devices land to A. till a hundred pound levied and dyes, the heir enters& continues by four yeers in which by computation the money might have been levied, 4 Report Case Edw. Corbet. the Devisee shall have four yeers more against him is heir. In a praecipe quod reddat, the tenant is essoigned at the Grand scape, 4 E. 428. where he ought not to be this shall not turn to a discontinuance. One takes my goods by wrong and them offers to an Image, my property is gone, but if afterward these goods come again to the possession of the trespasser, 34 H. 6. 11. I may cease them out of his hands. 63 In praesentia majoris cessat potestas minoris. Institutes 4. 13. A Lord of the Parliament makes a proxy, and after comes himself into the house of Lords, though he says nothing, the power of the Proxy ceaseth. 64 Laches may prejudice but shall not aid any man. Tenant in tail sels a hundred oaks for twenty pound, the vendee delays the taking of them till the vendor die, 18 E. 4. 6. he hath lost them for ever. A man brings a Formdon against two, the one pleads, ne dona pas, which is found against him, the other pleads Basterdy, if the demandant in this case do not pray his judgement against the first, 15 E. 4. 27. till the other issue tried against him which finds him basterd, he shall by this neglect lose the other moiety which he might have had. custom of a town is after Corn and Hay, severed and carried away in such a field to put in Hogs, &c. if one will permit his corn to continue there where he had sufficient time equal to his neighbours, it is at his own peril, 21 E. 4. 41. F. b●rr. 205. and the other may put in their beasts, &c. as if the Corn had been taken away. A man hath five load of hay to be taken yearly in such a meadow, if the grantee do not take their loads of hay one year, it is lost for ever, and he cannot take it the next year, for then perhaps he should take all the hay in that place which was not reasonable, 27 H. 6. 10. and might put the owner without hay for that year. 65 The Law avoyds Circuit of action. Upon this reason tis that where a Lessor Covenants to repair and doth not, the lessee shall not be put to a svit upon the Covenant, 12 H. 8. 1. but shall detain so much money out of his Rent, &c. annuity is granted to A. for which he covenants and grants to be with the Grantor in every place in the County, 8 H ●. 23. &c. if he fail to be with him &c. he may pled it in bar of the Annuity, and shall not be enforced to an action of Covenant. 66 The Law yields to necessity. Upon this reason it is that in a Writ averment that they are the same lands shall not be admitted, 6 E. 3. 41. 5 Report Case of Amendments. 7 Report Cases of discont. scilicet. 38 E. 3. 25. because he may have another Writ, but in a fine upon release, it shall rather then the land shall be lost, and the advantage of the fine anuld. If there be not sufficient to serve of a Jury, the tenant to one of the parties shall be sworn rather then fail of the trial. The husband discontinue an acre parcel, &c. With the Advowson, the Alicnee presents and dyes, the heir grants the Advowson now in so much that the wife cannot recover this Advowson, 17 E. 3. 4 5. by recovery of the acre, because of the severance of this from the acre by the grant he shall present without recovery of the advowson, as if it had been severed at the first. 13 H. 8. 16. 6 E. 4. 7. One cuts an oak which fals upon the land of another, now if he could not prevent this, he shall be excused to enter into this land and take it away. The same law is if beasts be driven by the high-way, and they run into the Corn, he may enter into the Corn to drive them out. 10 E. 4. 7. In a per quae servitia against a prioress, 22 E. 4. 8. for that she is incloystered shee shall atterne by her attorney. 43 E. 3. 8. A man gives me leave to come to his house, and after discharges me again, 20 E. 4. 4. if I continue there afterward I am a trespasser, but if the countermand was in time of a tempest, the law alters, and they may stay there until it be over, said nota differentiem inter necesse& necessarium, though in latin as Davis thinks, fol. 12. they are used promiscuously, vouching the sentence of a Roman Senator, 6 Report Case Trollop. Nihil magis justum quàm necessarium,& per cook, Necessitas est lex temporis. 67 The Law will suffer a mischief rather then an inconvenience. This word Incontinence so much used in our Law hath the force of against reason scilicet, Lit. 231. 138. Institutes 152. artificial reason perfected by use and experience termed summa ratio. And it is in truth when some maxim of the Law is shaken. A man privileged in some Court is sued in London, and the matter is actionable no where but there in London, yet by his privilege the cause shall surcease there. 38 H. 6. 30. This the reason that a Fem covert or Infant shall not avoid their fines at full age, or after the husbands death. 17 E. 3. 79. See title vourcher in Fitz. 81. 13 H. 4. 3. Matter upon like reason. 68 Lex non cogit ad impossibilia. This the reason a Corporation, as mayor and commonalty may do petty ordinary things without writing, 7 H. 7. 18. for the infinity of them, so a sheriff he shall pled generally ea ratione, &c. because of the impossibility to do otherwise in all the several business of his office. The statute appoints that in redissesin, the sheriff shall go to the place and there shall take the inquest if now the redissesin is of a rent which issues out of divers Lands in several places, 40 Ass. 23. so as he cannot be at all at once. Its sufficient to take the inquest at one of them &c. because of the impossibility, &c. lease upon condition he dwell upon the land demised, and he dyes at the end of ten yeers, the lease being for forty yeers, yet his executor shall enjoy this term, Michel. 37. 38 Eliz. because the condition is become impossible, &c. 69 Lex judicat de impossibiliter faciendis quasi fractis. So tenant in tail suffers an usurpation, the issue is bound till the Church become voided again, but if he had made an appropriation of it. In which case by judgement of law it will never come voided again in this case, he may bring his action presently as if it were absolutely voided. 46 Ass. 4. I. Neveros Case. A Covenant is that lessee will leave the trees in as good plight at the end of his term as he found them, and he cuts them down, an action lies presently for the impossibility to perform, see 5. Temps E. 1. F. Covenant 29. 7 Report 15. Report Case, Sir Anthony main ruled upon the same reason. A man submits to arbitrement, and then repeals the authority of the arbitrator, &c. this makes all impossible to go on, &c. and is as much in doom of law as if he had broken the arbitrement actually, and his bond is forfeited, but nota. 8 Report ease Viner. The Impossibility must be absolute, for if the least possibility remain it alters the law, as where the condition was upon a feoffment to re-infeoff the Feoffor, the Feoffee is disseised, and then acknowledgeth a statute or takes a wife, &c. in this case at first sight in ordinary reasen it is impossible he cannot make this feoffment, but he must enter before by which the Land will be charged with these encumbrances, yet because the wife may die, or he may procure a release of the statute before the time of entry& refeoffment, 2 Report Case Iulius Winington. therefore no such impossibility is in the case to amount to a breach of the covenant. So in case of trees before, if the Covenant had been of a house in as good plight, &c. which is out of repair, and the term is well-nigh ended within three days, in which a kind of impossibility is to do it, 12 E. 3. Fitz. Tit. Covet. 2. yet an action doth not lie till the term be wholly effluxed. E converso, The Law adjudges sometimes that is impossible to be done as actually performed. As where it was enacted that a statute the made should have continuance till the King returned à partibus transmarinis, and he dyed there, this statute is now determined, as if he had returned. 18 H. 6. 12. A lease is for yeers until Accomplish the age of 21, he dyes at eighteen, this lease is determined as fully, as if he had come to one and twenty. 3 Report Case Borraston. 70 Lex accepit voluntatem& diligentiam pro facto. No place is limited where money shall be payed in the condition of a bond, if now the obligor happen in company with the obligee intending to tender him the money, 8 E. 4. 1. per Catesby. and the other shifts away to prevent him, &c. It seems in this case he shall be excused, because he hath done his endeavour. A man gives a Jurour money to embrace him, though it happen the verdict do pass against this man, yet he shall be punished for this,& the law was that if one assail me to rob me though he did not, yet he should die for it. 28 H. 6. 12. Dyer 9●. See Frosts Case 5 Rep.& Ridgways Case 3 Rep.& Plow. 22. Exception 2. Nota, this exception where the Condition, Act or &c. is to be done to an estranger there, to do what in him is, will not serve, but it shall be actually done, and its nothing to have done quantum in se est. As a covenant is betwixt A. and B. that if A. upon the tender of a hundred pound makes him an estate, then B. shall release to A. A. is all times ready to make the estate pro ut, &c. but the 100 li. 23 Eliz. Dyer 371. is not tender, &c. B. in this case is not bound to make any release. 71 Lex judicat de rebus necessario faciendis quasi reipsa factis. One erects a jetty above my house, by which of necessity the rain will fall and run upon my house or curtelage. 4 Report Case Pentuddock. Its lawful for me in this case to debruse it and pull it down before any rain have fallen, all one as if it had fallen upon the house. 72 The Law judges of that may be done as actually done. Upon this reason it is that the attornement by an Infant in pais is good, 9 Report Case coney. because he might have been compelled by a fine to do it. The sheriff may sell goods without any venditioni exponas, because he might by such a Writ have been compelled to it. 5 Report Case Hoe. A Rent charge is payed twenty yeeres without acquittance, and after a Writ of annuity is brought, 37 H. 6. 19. he shall be received to pled payment as to a rent because he might have done so if he had issued for it as rent. 9 Report Case Sir George Reynalls. 1 E. 3. 11. An office is granted for yeers, it is voided because this may come to an executor. Albeit an essoign is not cast, yet because it might have been done, a Jury shall not be demanded the first day. The King discharges all Intrusions, &c. and one hath entred at this time, yet because office was not found it cannot be said Intrusion, but resolved because an office may be found when the King pleaseth, 11 Eliz. Dyer. 284. it is all one in law as if it were found see 4 Report Bevils case, been to this purpose. Nota, If a thing is in my Will to have, it is all one as in my possession, so where it is in the will and power of a prisoner to escape, 10 H. 6. 6. 42 E. 3. 10. it is all one as if he had escaped in judgement of law. Fitch. Coron. 432. Exception. 14 H. 7. 2. He which is acquitted upon an Appeal may this show upon an Indictment, but if he do not so he shall have no damages. See 4 Report Vernons Case. 73 The Law will judge of some things actually done as not done,& è converso. Tithes are set forth actu, but re-taken by the owner, it shall be as if they had never been set out at all, so money payed to lose a mortgage, and if taken back again, it is as if not payed at all. One hath a protection, Wades case. 5 Report. dum moratur, &c. Comes over to provide victual, it is in law no coming to break the condition, D'Itaque non redeat, which is in it. A demandant enters into the land in question by disseisin to the use of another it is no entry. Institut. 1. 18. 131. Institut. 1. ●6●. Beasts escape out where the Lord comes to distrain as to him they are yet upon the land, and he may take them, &c. one shall be said in possession of a Ward gone six houres before out of his possession. 3 Report Case ratcliff. 74 The Law adjudges the same thing in esse,& non esse to divers purposes. An estate in remainder descends to a particular estate, 9 E. 4 18. 40 E. 3. 13. yet if he be an Infant he shall not have his age, nor be in Ward by discent of this remainder, but shall be said in of his first estate. A particular tenant grants a rent,& after makes a feoffment or surrender which determines his estate, 1 Report Case Archer,& ●0 E. 3. 6. yet it shall be in esse to hold up the rent during the said estate. Two men are bound in an obligation of a hundred pound, and a recovery by judgement is against one of them, ● Report Case Higgens. 9 E. 4. 51. this dams the bond as to him, but as to the other it is in esse. A man is bound in a statute, and is seized of a rent and before the extent he releases the rent, yet it shall be in esse, as to the Conusee. He in reversion infeoffs his Lessee for yeers to the use of I. 7 Report Case Lillington. S. &c. This will work a surrender by the law of the term. Yet by the statute of Uses it shall be in esse, and is saved. The Lord releases to his tenant being an abbot, who had purchased in Mortmain the signory is extinct, F. n. b. 223. 14 Eliz. per opinionem Dyer. yet as to the Lord Paramount it is in esse. Lessor grants a rent, and then accepts of a surrender, he shall hold now charged with this rent presently, but if he had granted the reversion to a stranger who accepts of a surrender, he shall hold discharged of this rent during the life of the tenant for life. See 9 E. 4 18. and 6 Report, Sir Anthony Mildmays Case of a rent to cease for a time, and to revive for another time. 1 Report Anne Mayos Case, simile 5 Report Halls Case in a sentence after appeal it is in esse, as to the costs. Vide 6 Report, Lord Aburgavenies Case, 9 Report Case, Strata Marcella, where its said those things are in esse quae jure sunt. Vouchee is tenant in law, but to some purpose, Institutes 1. 273. not to have a release to him, so tenant by courtesy who hath granted over his estate. 75 Quod lex dicet factum est sic acsi, by the party himself. This is the reason that in all dealing with officers, trad●smen, &c. they will declare that agreement, was to give them tantum, quantum meruit,& though no such agreement can be proved, it shall pass for them as if such agreement had been proved as in case of a tailor, it is good evidence that he put the clothes to make without more the Law says the rest. 8 Report 147. 76 The Law judges that is illegally done, as not done at all. One gains the estate of a copy-holder by disseisin, 4 Report Case of Copyhold. and leases this for years, this shall not destroy the custom. A man takes beasts for to agist his common, 22 Ass. 84. this gives him no seisin because not legal to use his common so. 77 Leges priores per posteriores abroguntur,& contra. But then the later Statute must be contrary to the former in substance or quality, and so if the later be negative, as assisse non capiuntur nice in proprio come. This of more power then if it had said, ascise capiuntur in proprio come. In the first it will warrant a plea to the jurisdiction of a Court, 11 Report 62. 3. in the latter not so, if he be impleaded in any other place then the county where the Land lies, 38 H. 6. 18. 8 E. 2. Iudgement 240. But a Statute in the affirmative doth not alter a statute formerly made, or a custom. Statute 21 H. 8. is, that if one who hath a bnfice of the value 8 pound takes another, and is inducted, the first is voided, this doth not alter the Law before that the fecond bnfice doth make voided the first, though of less value then 8. 4 Report case. Digby and Holland Case. lib. and so before indiction in such case. A man hath wreck by prescription, and it is enacted, Quod Rex habebit reckum maris per totum regnum: This shall not take away my prescription, aliter if the prescription had gone per totum Angliam, 5 Report case Sir Hen. Constable. 9 Car. case. Bradshaw in b. Roy. and so as large as the Statute: As the Statute 5. Eliz. 4. In acts that he who sets up such trade must be apprentice before, &c. alters the custom of the Realm to trade freely before without such service presedent. The Statute that Sheriffs shal deliver Indictments to the Justices of Peace by Indenture, yet if he do not so, they are not voided. 4 H. 7. 11. Things of necessity are not altered by general words of an Act of Parliament. 10 Report 61. 5 Report 71. 7 Report 14. So if against common reason. Plo. 88. So if absurd, Dyer 314. 27 H. 6. Tit. Annuity 41. Insiitutes 2. 198. Dyer 234. 43 E. 3. 22. It is ordained that Commissioners ecclesiastical shall punish abuses against the book of common Prayer, yet the Ordinaries jurisdiction is not taken away. See Institutes 1. 96. to this been. The words of a later Statute by Construction or Interpretation onely shall not abrogate a former statute, 4 E. 4. 3. 7 Report Ken● case. yet costs were due in a quare impedit, by the Common Law, and damages are given by statute W. 2. in this action. Costs are by construction taken away. So the statute of Marlb. cap. 6. is repealed by the affirmative statute of 32 H. 8. of Wills. 6 Report Cursons case. See by me if it is not because these are contrarious in reason, which equal as if in express words. 78 Lex non cogit ad vana per agenda. But rather in some cases will allow the thing as done which should be in vain to do. Lessor Covenants upon Surrender to make a new lease, he grants the reversion away for yeers in this case, the lessee need not make any surrender, 5 Report Case Sir Ant. main. but shall have his action so soon as he pleaseth, because it is vain to make a surrender when the Lessor hath himself disabled, &c. by his new lease. Covenant to sing mass in such a chapel which falls down, 11 H. 7. 10. the Covenantor needs not go thither and proffer to sing mass there, &c. Goods are delivered to re-deliver upon request, 7 H. 6. 31. the Bailer delivers them to a third person, I may take them without request, Protection is cast in a cause where two are sued as husband and wife, 17 E. 3. 16. and shee comes and pleads she is not his wife, she shall not be admitted, and for this cause though shee desire it not, yet she shall not be estopped to say she was a Fem sole. The Lord covenants upon surrender of the old Copy to make a new one, now because the making of a new Copy is a surrender in law of the old, Michael. 11. Car. Rot. 310. B. Roy. therefore an action of covenant lies against the Lord if he do it not without such surrender which was idle to make. Exception is to this rule. In case the thing may be of some validity, and is not absolutely vain, though revera it is idle. As where I.S. is bound to present I. D. to the Church of Sale when this shall next be voided. In this case though the obligee is married, &c. by which he was disabled, &c. yet he must be presented if he will save his bond because he may have a dispensation from the Ordinary. 20 Ass. 1. Perkins 157. So where Vtlary in felony is to be reversed, a Scire facias shall go to the Lords, &c. though he hath no land, &c. until the Court shall be apprized thereof by return of the sheriff, 7 H. 7. 5. or the Kings Attorney. See 39 E. 3. 22. 23. 21. E. 4. 40. 47. 79 Lex non haeret in syllabis vel literis modo de substantia constat. 16 E. 4. 3. 39 H. 6. 43. ib. fol. 39. A Writ is that such a one fuit non compos mentis, and the traverse to this was that absque hoc quod fuit extra sanam memoriam& been. So Iturus is put for profecturus, its well enough. Avowrie is because a 100 pound pro redditu praedicto, was behind, and sufficient though de reditu had been more apt. The King brings an action of account, and the Writ is, 25 E. 3. placi●o 21. quod reddat Compotum nostrum. Where it should be suum, and yet holden good. The Mesne grants to the Tenant to acquit him against the Lord Paramount and his heires, he shall acquit him against his wife, &c. 1 Institu. 241. 14 H. 4. 18. A bond is to resign to the obligee, yet it shall bee done to the Ordinary. So The Law is sometimes stricter then the words of the party in force. ● Report case Frances. The Lessor grants if the Lessee is disturbed, he shall have fee, every disturbance will not do it, but shal be of the lessor himself to raise this Contingent fee. A remainder is limited to children unprofered, this shall be such as are not preferred when this remainder happens to fall, and not unpreferred at the time of his death, who made such will for if they be preferred afterward before the remainder fall it is sufficient. Ibid. case Alice Fulhurst. A statute is that Justices of Gaol-delivery, or Oyre and Terminer or any two of them shall hear and determine, &c. in this case though there be but one, he shall execute this well enough. Institutes 3. 130. 81 Lex non est curiosa. Winks at small faults, one brought a Writ of Conspiracy for indicting of him the fourth of August, the Defendant makes a Justification for executing the office of Justice of Peace, without that he was guilty of any conspiracy before the said day or after and ruled good though he doth not precisely answer the very day laid. 12 E. 4. 18. An action quare fossaros fregit, where it is more proper to say, prosternavit, yet ruled good. 12 Ass. 28. Plo. 192. case Adams. A lease is made to B. and his wife, she survives and marries W. and in pleading of a new lease, It is said to begin after the end of the lease made to W. and yet held good. Hill. 11. Car. case Laurence. 10 E. 3. F. Release 38. Assumpsit was in consideration he should surcease quaerelam pro 7 li. and it was an action upon the case which is not for a sum certain, but damages seven pounds, yet holden good by the better opinion. account is brought of a resceet per author Mains, and a release pleaded of account by himself, and admitted good. 27 Ass. 5. Champerty quod cepit mainutenere& adhuc mainuteret; in a plea which is adjudged and determined, and adjudge good, yet it cannot be good in the present tense, Misrecitall is of the very ancestor, as a man says himself heir to the grandfather; 10 Eliz. Dyer 359. 360. whereby the office it was to the father, yet good. A condition was to lease as, A. thinks meet and in the record its pleaded non demizavit, nec appunctuavit and good; so not curious in the translation of the English into latin. 5 Report 23. In case of waste de hominibus, it is proper to say in exilio hominum, but if he said fecit vastum in hominibus, it is good enough. Vient lassie supra titulo, 2 H. 6. 11. where it appears before there were many titles, and yet good, Vide 38 E. 3. 20. 27 H. 6. Ultimo. Curiosity circa horam dici. Dyer 326. Upon this reason it is that fuit is oftentimes admitted for est, pertinent for usually occupied, ancient office for petty continuance &c. Vid● ante verbo Idem. 10 Report of B. Salisbury. 10 H. 7. 27. Plo. Hill.& G. Case. 9 Report 52. The obligee says to the Obligor, that he himself is discharged of all bonds, this is a good release being by dead, albeit it is improperly spoken. 82 De minimis non curat lex. A quill full of gold or silver oar shall not cause a copper or tin mine to be to the King as a mine royal. Plo. 339. Nota, Amercement is so small a thing a man shall not be restored to it, though there be a lawful cause to to discharge it, 8 E. 4. 25. so where a judgement is reversed, I shall not have restitution of an amercement given against me, cutting of trees to the value of two pence is no waste. F.n.b. 60. Plo. 329. See Plo. 85. where it is said that a lease for an hour of a pretensed title or right is within the statute of 32 of H. 8 of buying tirles. 83 Law presumes more then the party himself says. An Ordnary returns for cause of divorce that the parties are infra annos nubiles, 7 Report Case Kens. &c. The Law says there are more causes. A man is bound to infesse me of Lands worth ten pounds by year, &c. pleads that he infeoft me of the Mannor of D. and S. which are worth ten pounds by year, 14 H. 7. 1●. it is no good reply to say he infeoft me of the Mannor of D. onely, without saying what it's worth, for it may be worth ten pound per annum of itself, though he said both were but of that value: a man covenants with I.S. that if he do not warrant the Land to him he will save him harmless upon svit, he enters into the warranty, 46 E. 3. 28. though this satisfies the words of the Covenant, yet not the Law, for he shall render to him in value, otherwise, he doth not perform the Covenant. 84 Lex intendit optima perfecta& effectualia& legalia. A man hath estovers in a wood, and he comes with force and arms, and cuts down trees, 14 H. 8. 7. it shall be intended for his estovers, and not other wise, for where the thing stands indifferent right or wrong, the Law always judges the best: Where it's said such a thing to be done, it shall be intended prima fancy lawfully done, as where one pleads that he was possessed of a Hawk, Dyer 30●. ut de bonis proprio is, it was intended lawfully, where speech is of time indefinitely, it shall bee intended the present time. 42 Ass. 21. 6 Report Case Colliers. 10 Report 3 Report Case Fines. Plo. Case. Willowby. 11 Report Case Metcalf. 5 H. 7. 25. A man is bound to apprar, it shall be in person. Where it's agreed a fine shall be levied, it shall be a fine upon the stat. of 4. H. 7. A challenge is, because such a one was sistet to the Sheriff, ir shall be intended of the whole blood. Where speech is of a judgement to bee given, it shall bee intended final judgement. A Lease is made to an Abbot for life, it shall be intended his natural life, and if he be deposed, 37 H. 6. 18. 35 H. 6. 54. his successor shall have it during his life. he that claims conuses of plea in his own case, the Law supposes he will do right and be indifferent. Institutes 3. 214. 185. 5 Report 112. Plo. 220. 20 H. 6. 23. A Statute which speaks of atteindors of treason, intends legal attendors, and not erroneous: so of an office, whereof an assign intend it a complete assign, &c. 85 Lex omnia suaviter,& ad melius disponit. A Writ is, reperare& mundare fossatum& ripariam. The Law will apply the most apt Substantive to his verb, 46 E. 3. 38. mundare to fossatum, reparare to the banks, &c. The solvendum was to the Obligor, 4 E. 4. 29. the Law will alter it and make it to the Obligee, and so the plaintiff shall declare quod nota. A Writ of entre is upon the Statute of W. 2. 4 E. 4. 29. quare ingressi sunt manerium de A.& B. ac unum messuagium, ten Acres of pasture, ten of meadow, in the Town of P. &c. and the case was that no such Town of P. is without addition, and so in strictness of Law the writ was to be abated, but now to save this the Town shall be referred to messsage and lands, 19 E. 4. 6. and not to the Mannor which is good without any vill laid and the writ abated, as to those and stood good as to the Mannor by this fair and handsome disposition of things. trespass quare clausum of husband and wife, & bona sua cepit, and declare of a taking before marriage, 7 H. 7. 2. 3. and the Court said that this word sua being indifferent shall refer unto the wife onely, and so good by this ordering that word, trespass contra pacem, R. 2. & Regis nunc where part of it was in the one Kings reign, and part in the other, and so declared, though the Writ is joint contra pacem, 11 H. 4. 15. 37 H. 6. 2. 17. the trespass shall be so marshaled to make it good. Cessavit is of divers services, it shall be referred to such services onely in which the Law says a cessor may be and not to others, as homage, &c. In a Quo warranto prescripton, is alleged for wai●e and possession of the Abbot, and the Act of 32 H. 8. of Reviver pro catellis follonum, ● Report Case Abbot Strata Mercella. & eo waranto clamat omnia ut spectant to the Mannor and good, though catalla felonum cannot in Law be spectant to a Mannor, the Law will refer this word to other things before mentioned, which may be appertenent to a Mannour, or else make that word as voided, rather then overthrow all. A man grants a rent de molendino suo percipiendum de se& haeredibus. The Law will marshall it thus that he grants the rent for him and his heires, 22 Ass. 66. percipiendum, out of the Mill, &c. 86 Lex semper dabit remedium. A man leases land excepting the trees, he shall by law have free egress and regress for to come and cut them down and carry them away. 14 H. 8. 1. 11 Report Lifords Case. 1 Report 98. Where the statute gives a third part to him who discovers an offence against any statute, he shall have an action for this, 37 H. 6. 4. albeit it is not expressly given, 87 Lex judicat de insufficienter vel vane factis quasi omnino infectis. A bailie of a Franchise makes an insufficient return, it is as if nullum dedit responsum, Institutes 2. 453. 5 H. 7. 28. 3 H. 7. 11. Plo. 19. and a non omittas shall be awarded, and he shall lose the franchise, hac 'vice, no office and an insufficient office all one. summons by one Sommonour, is as if none at all had been: Stamford 51. 50 E. 3. 17. 14 H. 8. 21. 26 E. 3. 69. if a rent is granted but no atornment it is as no grant. Presentment to a Church full before, though the presentee hath accepted of it, will not determine his annuity granted him till he should be presented. Fitz Coron. 444. A man is acquitted upon an insufficient Indictment or appeal, no damages shall be given, but is as if no acquittal had been. 27 Ass. 25. 8 Report Case Vinior. The power of an arbitrator is repealed, but it is imperfect because notice was not, &c. he may well pled, non revocavit. An appeal is brought upon an Indictment, but because the Indictment was insufficient it shal be taken as no Indictment had been, 20 E. 4. 6. 10 H. 7. 24. 26 E. 3. 4. & abettors shall be inquired off. The same law is where a thing is done in part onely, as where debt is payed in part. Vide 5 Report, Case Lord Mountjoy. Institutes 1. 25 4 Report, Case Vernon. The same law is where a thing is vane factum, and so acceptance of a vain thing is as none, a Commission of the Peace is direct to two, which are dead, P. Brook 50●. this will not repeal a former Commission. One makes an Indenture o● other Writing under seal of receipt of goods, 27 H. 8. 22. 49 E. 3. 3. this works nothing more then if no dead at all had been, but a dead of receipt of money shall conclude for to say unques son Receiver. 10 E. 3. 32. A Metropolitan doth commit administration where there were not any bona not abilia, &c. it is as none. An Infant grants a rent, 14 H. 8. 21. 24 H. 8. 2. or no attournment is to such grant by the tenant in case of a man of full age these may pled ne grant a pass for the insufficiency of them. 88 The law will accept of that is good in grants or pleadings, and reject the surplus. 10 E. 4. 56. I household-stuff A. and grant to B. by the same dead that I shall warrant for me and my heires to A. that is a good warranty to A. and the words to B. are voided, A man grants 20 load of buche to jo. Rosset and his heires, quorum 16 praedictus Johannes habuit ex dono Richardi patris mei, 10 Ass. 14. &c. albeit jo. never had any such grant before of the Father, &c. the grant is good for the whole loads. A Bishop certifies bastardy, 4 Institute 48. and endorses the reason because the Father was absent seven yeeres. The Law will reject this later part, and restrain the former of Basterdy A Writ 11 Ass. 24. goes to choose a burgess of Parliament, no Lawyer, the Law rejects this last. 89 The Law is more agile in working then the act of the party. This the reason that where lands are devised to him, that is heir at law, he shall be in by discent, and not by the will. Tenant by the courtesy is the reversion to the wife of I.S. he infeoffs the huband and wife, 11 Ass. 24. it shall be a surrender to her, and the husband and takes nothing. See 20 Ass. 16. 35 Ass. 11. 90 The Law where it enjoins an Act to be done will provide he shall not be hurt, à later that doth it. And for this, where I have annuity and many arrears are, and then it's due at Mich. subsequent, and I do receive it then and give an acquittance, now because he is not bound to pay it me without acquittance, therefore because I could not receive it without this acquittance, 3 Report 65. it shall not bar me of the arrears due before, aliter, in case of rent. 91 The Law regards the principal thing, and not additionals. As in case of a Mill, which is in demand, it's no matter whether Corn-mill, Paper-mill, 4 Report Case Luttrell. or Bolling-mill. A. grants me the yearly annuity of a rob with furs, when I come to sue for this, 17 E. 3. 73. I shall onely mention a grant of such a rob yearly, without mentioning furs. 92 The Law adjudges the denial to do a thing as the not doing it or breach of Covenant, &c. A. delivers B. ten pounds for certain woad, if he like it when he sees it, ●8 E. 4. 15. and if he like it not, then to redeliver the money, if when he sees them he deny to have them, the bargain is determined, and no agreement after will make it good. ●5 E. 4. 31. ●4 H. 8. 23. A man is bound to do an act when I request him, and he says he will not do it, he hath forfeited his bond. 93 The Law is not satisfied with shadows but substances. It is not sufficient for a labourer to be retained in service, if he do not actually serve. ●1 H 6. 1. ●9 Eliz. Dyer ●56. If one accept of a thing in satisfaction of another which is of no value it is not good. See Wades Case, 5 Report, to this purpose: 46 E. 3, 26& 33. 46 E. 3. 28 Case of Warranty. 94 The Law hath an eye to the beginning of Acts. Plo. 260. A lunatic smites himself with a knife, and after becomes of merely memory, and dies, he shall not forfeit his goods. 13 H. 7. 14. I have an intent to strike I. S. and it happeneth upon I. N. it is a maihem, &c. If presentment be in time of war, all done upon that is voided. 6 E. 3. 41. 2 Report Case Bingham. A servant kills his Master after he is departed upon malice conceived before in time of his service, this is petty treason. Fitz Coron. 210. 16 Ass. 3. A man abates parcel of a gorse, by which all is broken in time shortly after he shall bee charged of repairs of all and shall answer damages of all. 95 Loquendum ut nulgus. A. sels to me ten Acres of corn, 17 E. 4. 1. Plo. 29. it is good onely for the corn, and upon this reason shall the construction of a dead be made to control the sense of the Law. 96 A lawful act by matter, ex post facto, may become unlawful. 16 H. 7. 14. 2 E. 4. 5. 22 E. 4 47. 13 E. 4. 9. 9. 9 H. 6. 29. 11 Report 11. So whore a distress is taken well, and killed afterwards, so if it be sold, or he claim profit in it. A man hath a house boot, and takes this every year, as he may do though he use it not of 20 years after, for it is not good to build with before it be seasoned, 10 E. 4. 3. if now he sell it or convert it to other uses, he is a trespasser. The same law is where an act is well done by authority of the party, M. 2 H. 8. Kell. as I deliver a chest to one who breaks it, trespass lies, he which is distrained payeth his rent, and afterwards is denied to have his goods delivered, 22 H. 7. Kell. he shall have an action of trespass or detinue. ● E. 4. 17. 16 H. 7. 14. 11 H. 4. 58. So in many cases by not doing some act subsequent, a former lawful act shall become unlawful, as where the sheriff makes an arrest, and returns not the Capias, ● E. 4. 9. ●1 H. 7. 23. or if it be done by his Bailiff or servant, and no return, it will make the sheriff himself a trespasser though not the servant who is to be quit in such a case, &c. ● E. 4. 4. 8 H. 6. 8. An executor commands the taking of goods of the testator,, and after refuseth to prove the Will, he is a trespasser, ●1 H. 7. 23. but not the servant, the Sheriff seizes the goods of one out-lawed and after doth not charge himself in his account with them when the party is pardonned or outlary reversed, he shall have an action of trespass against the sheriff, The Ordinary refuseth a clerk for lawful cause, as insufficiency, if he examine him afterwards, and accept him, he makes himself punishable for the disturbance before. A Writ well purchased by matter subsequent as death of one of the demandants may become in apt or false, ●0 Report 134 and so abate. A man is arrested by command of the Justices in Westminster Hall, this is justifiable, the same Term, without record therof, but in another term not, 10 H. 7. 17. unless a Record bee of it, and by negligence herein he may be punished by false imprisonment. 97 Malitia mutat l●gem. A is bound to enclose against a close of mine called White Acre, if my beasts go into his for lack of his fence, it is excusable, but if my Close be sown with Corn, &c. by which he was secure and made not his fence, if I should now put beasts into my Close so sown of purpose they may escape, &c. 39 E. 3. 3. there he is not to be excused. So an Infant in case of Murder shall be tried for his life where malice and subtlety appears, 3 H. 7. aliter non. 98 Melior dabit nomen rei. Husband and wife joint executors, 22 H. 6. 30. the Writ shall be executoribus and not executrici, some convenient proportion of gold or silver oar shall give the name to a mine to be a mine royal, Plo. 323. though a great bulk of Tin is. leather of a sho shal give the ownership of the thread of I. S. 5 H. 5. 16. used in the making to the owner of the leather, and so he shall have all the property. 99 Magis dignum trahit ad se minus. Charters are put in a box, 14 H. 4. 30. 10 E. 4. 14. 40 H. 6. 18. this alters the nature of the box from a chattel, and now it shall go to the heir, and it is no felony to steal this box, nor lies a Capias of it in detinue. 42 E. 3. 13. 29 E. 3. 19. See 30. H. 6. Fitz. Tit. bar. simile Where the realty shall prevail, issue is, i● such an one was instituted and inducted, 43 E. 3. 13. 22 H. 6. 27. the trial in this case shall be by jury by reason of the Induction. A man reteins a servant to serve in all occupations, 38 H. 6. 14. now because wager of law doth not lie in case of service in husbandry if debt is brought for wages, 18. H. 6. 35. 20 H. 6. 32. he shall wage law in none of them. An action against two, and the one ought to have privilege of Chancery, he shall be outed of this and all shall be at the Common Law. A Lease is of a chamber& a bed rendering rent, 21 E. 4. 34. 46 E. 3. 8. in debt for this rent, the defendant shall not wage his law for the bed, because the other is Magis dignum, and shall rule the other. An exchange is of green meed for black acre, and twenty shillings rent in this case all shall be by dead, not that the land is less worthy, but because if it be not by dead it will be voided for the rent, and so overthrow the exchange for all, See 11 Report Case Auditor curl 46 E: Perkins 50. 3. 8. 100 Magis continet in se minus. plural number comprises the singular, &c. If a man is bound to pay twenty pound and tender is of that and more it is good. Commons grant tonage and poundage for four yeers the Lords agree for two yeeres, they need not sand back this bill to the ●ouse of Commons for their assent. 33 H. 6. 17. custom was to grant Copyhold estate in feodo, this implies that he may grant for ●ife, &c. Quare impedit, in the Register is, 4 Report Case Coppyhold. 10 Report 136. praesentare ad Ecclesiam, by this he may have pro tertia parte, &c. Procedendo, suppose an assize before Stoufe& Burton, Justices, &c. and it was also before shared,& good because three implies two. An action of battery is brought& the evidence for this proves it a Maihem& been because it is battery& more. 31 Ass. 1. A man is restored to all lands forfeited by his father in fee or tail, that he hath but for life, shall be restored. 39 E. 3. 20. Plo. 86. 7. 7 H. 7. 13. Exception. Traverse is of a feoffment by two pleaded, and its found that the Feoffment was by three, It is against him who pleads this. Vide 9 Report 52.3. 14 E. 4. 1. 6 Report Case Fitzwilliams. Power is given to make leases for yeeres, &c. Yet he may make one lease onely. 101 Modus& Conventio vincant legem& Regem& contra. This rule is agreed in Magna Charta. Conventio legi deroget, W. 2. 50. Barreth the Law as the translator hath it. The Law says Dyer will no● determine contrary to the agreement o● the parties, Dyer 181. 312. and for this cause where a gif● in tail is, the law says its to the use of the Donee, yet by the dead it may be to the use of the Donor. A rent is granted to one and his assignees pro consilio, 7 Report mands Case. this may now be assigned which without this agreement in the dead could not. And note by this agreement a man may tie himself to things out of his power to do, and which, quodammodo, 40 E. 3. 6.& 2. Dyer 33. are impossible& which the law frees a man of by common right. As where a man ties himself to repair, banks which are subverted by a flood, yet he is bound to repair them. So to repair a house blown down by tempest, which was a good plea in an action of waste. So where the Lessee ties himself to leave a house in so good plight as he found it, if it was feeble at the time of leasing and falls down, he shall make a new one, which by law he was excused of. 8 E. 4. 9. Sheep are letten,& the lessee covenants to render the polls at the end of the term, he shall do so though they die of the Murrain, &c. The banks may be repaired, the house built, new sheep bought, 40 E. 3. 2. for to render the poles is the number not the very same. A man undertakes by covenant to get the good will of such a woman, or that a beggar shall pay 1000 pounds that such a field of corn shall grow, &c. Perkins A. 146. that such a woman shall have a child, that I. S. shall make a feoffment of his Land, the Law says these are possible, but if the Law say it is impossible, I am not bound by my Covenant, as where it is to leave a Wood in as good plight at the end of the Term& its blown down, so to go to Rome on a day: Vide Dyer 33. So of the case where it's covenanted, such a meadow shall not be surrounded, or that such a house shall not bee burnt, and it is by lightning, &c. it seems in neither he shall be bound because impossible: So also where the matter agreed is against the Law. Poulton de place Regni, &c. 11. See Heyburns Case. 14 E. 2. cited in the Case of Shipmoney. 5 Report 64. A man agrees with I. S. that if he pay him not 20 pounds, he shall imprison him, &c. though he pays not the money at the time agreed, he cannot imprison him. So a man agrees to a By-law made to imprison for the penalties, &c. this shall not bind him, Justices of assize held plea of Land in another county, then their warrant was, and the parties did agree to it, this shall not bind them, 8 Ass: 16. but if either is put out by execution, ind, &c. he shall have an assize. Institute 1. 146. If parties agree the distress shall be irreplegiable, this is voided, as against Law. The Defendant would render the dower at the day in the writ, 18 E. 3. 39. but did forbear by consent of the plaintiff, yet he shall bee amerced. The King reserves a rent, and a condition to re-enter, if it is demanded and not paid, 7 E 6. Dyer 87 but because the law is, the King need not make any demand, he shall enter without demand, this special agreement notwithstanding. So in case of incidents which are inseparable by Law, no agreement of parties will separate them, 5 E. 4. 8. Case Garter. as where an Annuity is granted for the exercise of an Office, and there is a proviso, if the Office bee taken away, yet the annuity shall continue, if the office is taken away, it shall cease. See 44 E. 3. 19.& 36. been, to this purpose. F. n. b. 264. D. Ligat Regem in casu. The King makes livery to his Ward, without excepting that the dower shall be assigned to the wife by him: the King is bound by this and she shal live the heir in a Writ of dower. The Kings Tenant alieneth part of the Land holden, the King may distrain this alienee for the whole rent, and is not bound by the Statute Quia emptores terrarum, F. n. b. 235. but if the alience make a fine with the King for this alienation, then he shall onely pay his part of the rent. 102 Nihil dat, quod non habet. A Tenant for years cannot give seisin of rent issuing out of free hold to maintain an assize, because himself hath not free-hold. 6 Report Case Brediman. Conusee by fine of a Reversion bargain, this to I. S. he cannot distrain, because his barganer could not. 5 Report Case Knotford in Case Malory. Plo. 281. Reversion is granted by fine, the grantee disseise the tenant and infeoff, the lessee enters, this is no attornment here, because he shall not be in better plight then his feoffor: An administrator cannot have greater property in goods of the Intestate, then the ordinary himself had before, yet by words in the Statute he hath. Issue in tail being bound by the Statute to pay debts of the Kings when the estate by alienation shall be disposed unto another, he shall bee in better case, 7 Report Case and is not bound to pay these debts, for the Statute extends not to him,& so is at the common law, in which case by death of tenant in tail the issue& al under him were discharged, so where a custom enlarges the power of a Grantee. A Lessee of a Mannor is, excepting the trees, in which Mannor are Copyholds now he himself cannot cut trees they are excepted, 8 Report Case Swain. but if he grants a Copyhold, the granted may cut trees by the custom which outstrips that Lease. Upon the same reason it is that Prerogative of the person of a Grantee will add power, 5 Report Case Knight. &c. which the Grantor himself had not, as where a reversion in part is granted to the King he may enter for condition broken in this part, 5 Reporr Case Mallory. which the Grantor could not do. The like law is when a man comes in by act in law, as by Escheat, &c. he may distrain though he who dyed without heir could not do so. 19 E. 4. 6. A subject of the King of England, enters bond to a subject of the King of Spain, enemy to the King, 22 E. 4. 23. it is voided to the party, yet the King shall have it and recover the debt which the obligee himself could not do. The King grants Conusants of plea in the Mannor of D. 7 H. 4. 1. Fitzh. Prohibition. 10. then a new action is given by Statute which was not before, the Grantee shall hold plea of this though it was not in the Grantor. Vide 4 Report 23. 103 Nemo bis punietur pro uno delicto. An ecclesiastical person recovers damages in trespass, 7 H. 41. Fitzh. prob. ibid. 10. he shall not be punished again in the ecclesiastical Court, but this seems quo ad partem ipsam, but by svit ex officio he may, so the party against whom damages are recovered in trespass may bee fined at the Kings svit upon Indictment, &c. and so in many cases, where the wrong trenches upon several persons, as a servant beaten, so in case Baylor and Baylee they shall have several actions. So Dissessor and Dissessee renant for life, 10 H. 7. 5. ●. 15 E. 4. 25. and he in the remainder shall punish the forger of false deeds. See 40 E. 3.11.43. Ass. 9. 104 Negativum nihil implicat, in a praecipe quod reddat. The tenant wages his law of non-sommons, 22 H. 6. 41. 33 H. 6. 25. this doth not imply that he was tenant, nor shall conclude him, others contra, one pleads, ne chasa pas, in Frank chase of the plaintiff, this is no granting that he hath a free chase, but he must prove it. One prays to be received the demandant says that he hath nothing in reversion day of writ purchased, 10 E. 3. 20. this doth not infer that he had after the writ purchased, but if he hath he ought to have mentioned it upon his Prayer. 48 E. 3. 13. 14. 104 Nemo tenetur seipsum prodere. And for this in Cases criminal he may refuse to answer to matters which tend to prove evidence in this, and if he deny the matter, it seems no perjury to be punished though he answer otherwise then the truth is, and so Sir John Walter held in ease of an answer of a defendant in Star-Chamber, he should not be charged in this for perjury. Exception. There was a man examined upon oath of goods of the Kings which were devised to him, 40 Ass. 35. and come to the possession of the defend●nt: and a juror may be examined upon oath if he have sufficient free hold, 12 H. 7. 29. this is no crime, &c. 105 Negatio duplex est ●ffirmatio. A distress was pro servitio inf●cto. The defendant says, 9 H. 7. 13. Vide Litt. 220. Quod non fuit inf●ctum, and ruled as good a plea, as if he said it was done, though Conisby said it was but an argument in case of a grant, but it seems such logical curiosity shall not hold to avoid a grant. Institutes 1. 146. It is said such a thing Non oportet fieri, nec non such a thing, though such expressions are duplex negatio, 1 H. 7. 21. yet its holden a good negation in Law, and no affirmation. 106 Ovune est a defeter choose ceo ne serra object alue. 42 E. 3. 14. 8 E. 4. 6. One brings a writ of conspiracy to defeat a usage conyonus perfraud it is no plea that he is his villain, so in libertate probanda. In error outlarie pro fine Regis is pleaded against him, and holden no plea, 7 H. 6. 44. for he is to defeat all by this Writ, 6 E. 4. 9. 10. in error for to adnul an outlary, if he is twenty times outlawed, it shall not stop him, but he may go on with his Writ of error. The husband makes a Lease for life, 7 H. 4. 40. of the land of the wife, rendering rent, and dieth, the heir of the wife brings a sur cvi in vita, the Tenant shall not allege the reversion, and assets in the heir for that that he is to defeite this warranty, 38 E. 3. but note where the collateral thing to be defeated is a legal bar of the principal right, there it will stay him, as where a writ of error is brought to reverse a recovery, 3 Rep. lin. Col. Case 61. 14. 6 H. 6. 3. and a collateral warranty is pleaded, this warranty will bar him of his Writ of error. 107 Ou choose fait per implication serra bone& contra. Institutes 1.180. A Letter of attorney is to two to make livery and seizing, and the one of them makes livery the other being present, and nothing saying that is not good, but authority to three bailiffs, and to every of them, and two executes it, this is good because it is for the promotion of justice. A record is Jurati. ex acti comperuerunt, 1 R. 3. 4. quorum duodecum supper sacrum suum dicunt, &c. and doth not say, electi, triati& jurati this is error though those words are implied in these words, supper sacrum: 4 H. 7. 2. Aid is prayed of the patron and ordinary, which are returned, warned and do not come, 7 H. 7. 11. it is as much in Law as if he had come pleaded, and assented. A former doth not come to save his default, it is as much in Law as if he had come into Court and said, that goody would not save his default. In an assize the sheriff returns the bailiff was attached, 48 Ass. 40. and exception taken because the sheriff did not say, the party could not be found and ruled that it is included, and is well enough. 108 Ou choose serra, rule per le greinder part de le state. Disseisee Releise to the disseasor, Lit. after he had made an estate for life, his right to this free hold is gone also. 25 Ass. 7. A Cognisee dischargeth the reversioner, or purchase, the neversion, the particular estate is freed also: Lessee of a Mannour, 14 E. 4. 6. to which a villain regardant( is) the Lord in reversion manumits the villain, it seems this shall bind the Tenants for years, Tenant in dower releases her right to him in reversion upon a lease for life, 8 Report Case Althams 151. 9 Report Case Ascough. her right is gone even during the life of the Tenant for life. A menaltie is granted for life, the remainder in fee to the Tenant, it is extinguished in all: 9. Report Case, Ascough& Quiks Case ibid. Land is given in tail, the remainder to the King, the tenant in tail shall hold of none. Fallit haec regula aliquando. A. is impleaded who hath nothing in the free hold, fee descends, this shall not make the writ good, 1 H. 6. 2. but if the reversion of the fee descends to the freehold which he hath purschased, this makes the Writ good. A person makes a lease, the Patron who hath the fee simplo confirmed, this shall not make this good against him, Dyer 133. 7 Report come. Bedfords case. hath a grant of the Parsonage for yeers, &c. See 2 Report Beckwiths Case, Instit. 1. 298. 109 Ouvneserra soujudg, demesne, paymaster, carver, 12 H. 8. 1● &c. Lessor covenants to repair the house, if he do not the lessee may pay himself of the tent. guardian of a Church, at his own cost repairs the Church, and for amends detained ten loads of stones of the parishioners for which the successors guardians bring an action of account, 37 Eliz. Case. Methold and Wing. and adjudge that he may lawfully detain them, aliter of a servant Baly, &c. who do disburse money, &c. See the cases of Tailors, Hostlers, &c. who may detain rob, 8 Report case. Horse, &c. till reasonable sa-satisfaction. 110 Ou choose in lieu serra de mesme le nature. Land escheat to the Lord who is in of the Signiory by discent, 6 H. 4. placito p●imo& Kell 104. so shall he be of the land, and shall have his age, and if the Signiory was in tail, so shall the land itself be, and the Donor of the Signiory shall have a forn●don in revertor if he dyes without issue. A fine is acknowledged of a Signiory and tenancy escheat, 46 E. 3. 4. a Scire facias shall be of this land, and he shall not say nient comprise, for it shall be said parcel of the Mannor which comes in loco. 48 E. 3. 11. 111 Parum differunt quae re concordant. A declaration was to have a Faire three days, 16 E. 2. action of Case 47. and ruled that two dayes and two halt days will maintain this declaration. An assize was brought against mayor and commonalty, and found that the mayor and Bailiffs did the disseisin, but because no more was of the commonalty then the Bailiffs it was held good. 31 Ass. 39. But note where there is an apt form in the Register, there a man shall not differ from it. A praecipe quod red at is forty and ten acres of land, &c. and the Writ abated, 14 E. 2. F. Bre. 816. quia non fuit quinqu aginta. The moiety of twenty shillings and ten shillings is not all one, See Institute 3. 131. Institut. 1. 197. simile in point of pleading. See 17 E. 4 3. Testamentum& literas testament arias all one. 112 Parols ou voilent amount al act& contra. A condition of a bond was to permit I. S. to remove his goods, and denial by word to remove them is no breach of this condition, without averring of bolting or locking the door against him, 8 Report case Frances. &c But note where its said generally that such a one impedivit, interrupt or disturb, &c. it is good without more as it seems and shall be intended actual disturbance, yet see 47 E. 3. 24. Contra that he ought to show some cause or act done in his pleading. 5 Report 76. 22 H. 6. 17. 45 E. 3. 3. A Commoner said to the Lord of the soil that the soil was his and commanded him to cut no trees, this will not amount to a disseisin. 26 Ass. 17. 113 Parols subsequent bounded or qualified by the precedent, Dyer 240. & è converso. A termor covenants that for any act by him done, the assignee shall enjoy against every man, this is no absolute Covenant that he shall enjoy. A bond to make sufficient estate as A shall device, these last words take off the vigour of the former for the condition is well performed though the estate he makes be insufficient, 5 Report 23. if A device this. Pasc. 4. Car. Lady Smiths Case. A Covenant is to surrender upon request, and to permit A to take the profits, the word request doth not go to the latter clause, 4 Report Case ●enill. and he may take them without request. actual seisin and possession spoken of the word actual goes to the first onely. Soillicet Seisin, vide 49 E. 3. 16. 4 Report, Case Palmer. ●9 H. 6. 9. 114 Parolx font plea. The condition of a bond is if the Obligor do not pay, that then the bond shall be voided, so it is that the Obligee shall pay, &c. both are good and shall stand, and it is his folly, &c. And not like the case where the solvendum was to the Obligor, 4 E. 4. 29. for this may be omitted and is voided, Ergo it shall not hurt. A Bond was made T. T. sheriff of W. in come. perdict. pro predict. Trin. 21. jac. Case nowell. in B. Roy. & ruled nought for the senselessness of the word perdict. but for parolls font plea, Vide placit hic 151. 115 Poena aptabitur damno. If a stranger commit waste in my land by which I lose triple damages, 44 E. 3. 27. In trespass against him damages shall be recovered triple. 9 Report Case hussy. Offence against a statute shall be punished as that says, and so at the common Law as that directs. 116 Poena sine culpa. assize is against husband and wife, 7 H. 7. 2. and shee sole did the wrong, and there is no other form, Yet the plaintiff shall be amerced as to the husband for naming him that did nothing and yet he cannot help it. 117 Poena delictum supper abit. 40 E. 3. 6. A man lets houses in decay at the time of letting and they are burnt by his negligence, he is bound to make them new. A. had recovered ●orty shillings if the sheriff had made his return by a legal officer, in an action upon the case for this, 38 As●. 13. he shall recover against the Sheriff twenty Marks. 118 Particeps criminis& non poena. Tenant by entire service ceaseth, the Lord recovers in this part the cessor was, 6 Report Case Bruerton. by this he shall lose his entire Signiory, and the tenant shall have benefit by it. Husband seized of land in right of his wife sows the land, 5 Report Olands case. and after he himself sues a divorce, Causa praecontractus, yet he shall have the Crop. 119 Poena tollitur cum culpa, vel sequitur culpam. 14 H. 6. 26. The King pardons all alienations, the fine due by this is also pardonned, 5 Report 49. if a contempt is pardonned, the amercement also is. 120 Propositio hypothetica taken Categorice. I say to I. S. if he will beat me I will beat him, 37 H. 6. 20. aut co circiter. and this without any provoking words, this is a menace and an assault, 37 H. 6. 28. and the if is idle. Administration is committed to two, and the one being present says, that he will take the administration upon him( if the other will agree) he is administrator presently till the other disagree. One says to I. S. if thou go to London, thou art an arrant T●iefe, it seems these words are actionable, and shall be taken absolute. The defendant in action of battery and menace, &c. justifies thus, he saith that if the tenants of such lands will kill or maim him, 10 E. 4. 6. he will himself defend, and will rather beat or maim them then they shall him, 3 Car. in b. Roy Corbols case. and this holden a good justification. I will prove him perjured if he will justify his answer in Chancery an action lies. 121 Principio non valens tractu temporis non convalescit. 21 Ass. 2. A high way is granted to me, to B. acre where I have no free hold in it, albeit after this grant I purchase B. acre, this shall not make the grant good. A svit is begun in London for the same matter, 14 H. 7. 7. 39 H. 6. 12. for which a svit is depending in the common place, this is ill begun in London, now a nonsuit after in that in the common place shall not amend that in London, or make it of any validity. 10 Report 62. A Bishop makes a Lease for four lives, and one of the men for whose life, dies in the life of the Bishop, 21 H. 6. 46. 4 Report Case Herla: this shall not make it a lease for three lives within the Statutes, 32 H. 8. and 1 Eliz. vide ad idem 11 Report Case, Auditor curl,& 4 Report Druries Case. A man leases land for life, and then grants the trees which grow there, this shall not be a good grant after the Lessee dies. I sell a horse to I. S. upon condition to pay 40. shillings at Michaelmas next, and before this day I sell him to another, the first vendee failes of payment, Plo. 432. by which I reseise the horse, this will not make the second sale to be of force. Debt in the Stanneries is brought against an heir, which is not maintainable there by Law, now though he plead a false plea, 9 Car. in b. Roy Smiths cale: by which his goods are chargeable there, this will not affirm their jurisdiction. 4 Report Case Rowlins. Exception this rule fails in things which have operation by estoppel, as if I let B. acre by dead indented, in which I have nothing if I purchase this afterward it is a good Lease. 9 H. 4. 1. Vide 8 E. 3. 24 So in case of justice, one makes a return which is no sheriff but afterward the sheriff avows it was done by his Officer, this is good now. Recaption lies not upon a reptisall of a distress in case a Replevin was sued in a Mannor or Liberty, F. N. B. 73. and not in the county, yet if it be removed this writ now is maintainable. The same Law is where the impediment is removed, tenant in tail is the remainder in tail of the grant of the King. Tenant in tail acknowledges a fine, ● Report Case Lord Stafford. or suffers a recovery it shall not bind but if after the reversion is put out of the Crown it will bind. Tenant for life infeffs him in remainder, in tail and his wife, 41 Ass. 2. this is no forfeiture or discontinuance, because if shee die first it will bee a surrender, but if shee survive a forfeiture. This rule failes also by long continuance of time, as where a man prescribes to have a rent by distress, &c. 1● E. 4. 4. It is no plea to say it was always payed by cohersion of distress, albeit it was begun by wrong, &c. 122 Principio valens tractu temporis non devalescit. A man says to me see you I. S. I will kill him I may him hold, 9 E. 4. 16. and I shall be excused of this imprisonment, though he repent him, one makes a lease which is good, now by alteration, &c. it shall never come to be forgery. 123 Principio dato sequitur concomitans,& sit sublato. I have a Mannor in which is a Park and Fish-pond, 11 Report Lifords Case. I lease this excepting the game, &c. And after I grant the Reversion, the Deere and Fish shall pass as attendants. If a statute now made gives an action in case none lay before, the same process Judgement, and Execution shall be, 10 H. 7. 10. as in the same action was in other Cases, where it lay before at the Common Law, albeit this statute do not say any such thing. He which takes upon him to grant a Rent, 5 Report 21. it shal be by dead, and he shall tender a dead for that purpose without any agreement for it. A bond is to a sheriff to discharge him of the return of an Exigent, he shall discharge him of all. Concomitants and therefore though he return him languidus in prisona, which discharges him. 18 E. 4. 21. If after distress ad habendum corpus, go forth to the new sheriff, and the old sheriff is distrained to the value of twenty pence, which is forfeit, now the Obligor hath failed of his promise. Cause of appeal is pardonned, and after an Exigent goes out, now the goods shall be saved which otherwise by award of the Exigent were forfeited, 45 Ass. 9. because the principal was pardonned. 124 Praesumptioni stabitur donec probetur in contrarium. Unity at the time of the dissolution discharges tithes upon the statute, Michel. 40.& 41 Eliz. but this is upon presumption of prescription, &c. Now if it appear upon evidence, that part of the Mannor was in leas& paid tithes, this disproves the presumption, yet the residue of the Mannor shal be discharged of tithes. A man purchaseth land of I. S. who is impleaded in a praecipe quod reddat, 50 Ass. 3. the law presumes him to be a Champerror without showing he was so till he may prove it otherwise. 125 Qui tacet consentire videtur. 27 Ass. 3. Vide placito 4 He which is present at the actual killing of a man, and puts not debate shall be adjudged assenting. A Writ is against four, two wage their Laws of non summons, 8 H. 6. 36. the other two say nothing, it is so strong an implication of jointenancie that they cannot deny it afterward, The Ordinary makes an appropriation to the Patron, Plo. case. Grendon. it shall be said made by his assent, vide Dyer 62. 126 Quisentit commodum sentire debet& onus. 37. Ass. 10. F. Bar. 305. He which hath any benefit of a river shall be charged with the scouring of it, 5 Report Case Dean. of W. upon this reason it is that the assignee is chargeable in covenant to repair, though he is not name. A man grants a rent which is behind, after he grants the land to another, 11 H. 4. ultimo 4 Report Ognels case. the grantee dies he which took the profits when the rent Became arrear shall pay it, See 20 E. 4. 10. 12, 18. 26 E. 3. 64, 30. I retain counsel for one, 30 H. 6. 9. he shall pay the fee and not I. 127 Qui sentit onus sentire debet& commodum. This the reason if a feffment is upon condition▪ 1 Report case Shelley 99. 9 H. 7. 25. if the feffor or his heirs pay ten pounds before Michaelmas that they shal re-enter the father hath issue a daughter and dies, his wife being with child of a son, the daughter pays the money, she shall hold the land. The husband and wife suffer a recovery of land of the husband, Plo. case, ear and snow. and they vouch and have judgement to recover in value, the husband dies, the wife shall have nothing of the intended recompense in this case, for shee lost nothing. 128 Qui per aliud facit per se ipsum facere videtur. An annuity is granted till he is promoted to a bnfice by the grantor and his heirs in a Writ of annuity, 33 E. 1. anty 51 he shows the plaintiff was promoted by his mother at his request and been. 19 H. 6. 8. In trespass against A. and the evidence is that B struck me by his incitation and been. 1 Report Case Frost. A bailie arests me, he may show the sheriff did the arrest. 39 H. 6. 42. Dyer 241. A Rescoufe is made to the servant of an officer, he may return the rescouse made to himself. An Abbot prescribes to hold land discharged of payment of tithes dum propriis manibus, 20 Eliz. Dyer. 277. excolitur if it be tilled by his servants, it is within the prescription, outre with my beasts is my entre, and so he shall declare, Quare clausum fregit, vide 15 E. 4. 24. 21 H. 6. 5. 21 E. 4. 16. 44 E. 3. 44. 12 H, 7. Kellow, Placito 7. 42 E. 3. 23. But note this exception where it is matter of authority, it is otherwise, he must do it himself. 129 Qui remedio destituitur reipsa valet, siculpa absit. 6 Report 63. Upon this reason it is that he who hath a reversion by way of use which is executed by 27 H. 8. shall a vow, have wast, &c. without attornment. Upon the same reason tenancy by courtesy, shall be of a rent before seism, 3 H. 7. To make the obligor executor, 8 E. 4. 3. is a release in law because he cannot release to himself, vide 7 H. 7. 11. fallit regula. A person pays an annuity, and takes an acquittance, the successor shall not have this,& yet his plea of payment is not good without it. 44 E. 3. 12. 130 Qui magis Scit& potest de eo magis requiritur. If a stranger is to pled that such a one hath to name John Abbot of Ramsey, it is sufficient, 1 E. 4. 7. but if the Abbot himself was to pled such a plea, he shall show how his name is so, &c. See 13 H. 7. 19. 131 Quicquid solo superstruitur solo cedet. And therefore if one build upon my land or plant trees they are mine. Exception if my water by long continuance of time by little and little imperceptibly wear, 22 Ass. 93. and so run upon your ground, yet it is mine and not his upon whose ground it runs. 132 Quicquid remittitur fieri aequat facto. A dead is delivered into equal hands, to be delivered to I. S. upon certain conditions, 14 H. 6. 11. the conditions are broken, but he that was party to the delivery doth release the conditions, now it's all one as if they had been performed, 133 Quae non prosunt singula juncta juvant. Tenant for life in remainder shall not punish wast nor have a Writ of right, F. N. B. 30. but if he join with him hath the fee, he shall have both. Lessee for years grants part of his term, and both join in a surrender, 14 H. 7. 4. this is a good surrender, which severally was not good. 134 Quod necessario intelligitur non dost. A fine with proclamation is pleaded, and he shows that termino pasche, 30 H. 8. So many proclamations were and termino. Trin. 4. proclam: and Michaelmas term 30 H. 8. 7 Eliz. Dyer 234. other four, and exception was taken that no term was added to trinity, but ruled sufficient because it is added ●o Easter and Michaelmas & necessario sub intelligitur to the other 135 Quod non capit discus ●apit fiscus. The appellee in robbery disclaims in the goods, and after is acquitted, 12 E. 4. 5. the King shall have them, money is to be paid to I. S. who dies without heirs or extor, 48 E. 3. 31. The earl of Marches case. and sequestration was, &c. It is said the King shall have this money. 136 Ratio dicti minus valet quam dictum ubi differunt. A Bishop certifies bastardy, and indorces the reason of it, because the husband was beyond the Seas seven years, 38 Ass. 1● the certificate is good of the bastardy, and the reason of it rejected. 137 Relations. It is a fiction in Law used to several necessary purposes, sometime to make a nullity of a thing ab initio, which had an esse to certain purposes, and for other necessary uses in the Law. 138 Relatio& non ad ultimum. A Writ is brought of rescuing his goods, and denying to pay toll, contra pacem, &c. This shall refer to the Rescouse and not to the toll. 30 E. 3. 17. Note where the thing is vain to which the relation should be, as place &c. there reference shall not be ad ultimum. 30 H. 6. 32 H. 6. 17. in that kind, where the place was not put pro loco, but for another purpose. A carve of land is in demand, meadow, wood, and rent,& an exception comes after all, 6 E. 3 42. forstries to Acres▪ this exception goes to the Land, A demand is by Writ quod reddat manerium de W.& two acres of land, c●m pertinentiis in Cliderow, t●is cum pertinentiis shal be referred to the Mann●r, 6 E. 3. 12. Sir Adam de Cliderows case. 17 E. 3 26 77. 1 Ast. 15. bough it is in another Town then Cliderowes the same Law is where several Lands in several Towns are in demand precip●, &c.& interim messuagia illa torras pratareditus, &c: illa refer to all, 1 H. 6. 23. Plo Crofts case. A bond is made to A, B, and C, Yeomen, this goes to all three destrirgas M. 4 H. 6. 3. Dyer 45. quae fuit uxor T. S. de Marton Davie, this addition of place refers to M. A declaration was of a thing done at M. juxta stone in come. Northampton, and after the defendant at stone, in come. predict. assume &c. Warwick was in the margin, and Ven. fac. went to the Sheriff of War: and tried there, and judgement was stayed for that Northampton was the last Town and County name, and the rule given that reference for the most part is to be ad proximum antecedents, M. 35 Eliz. Case Child and Towers. though it is absurd, or will orethrow a verdict, &c. See Plo. Adams case. 6. exception. 9 Rep. 27 5 E 4. 126. F N. B. 2 D. 18 H. 8. 1. 6. Rep. Sir H. Finches case. 139 Relation will rectify incertainties in place time, measure, &c. A condition of a bond was to discharge him of such a rent against R. 18 E. 3. ff. harr● 247. & also to pay his area●s incurred before Michaelmas next both shall be before Michael. by relation to this subsequent word Michaelmas. A Lease is of W. acre& rent to be paid at D. upon the feast of St. Michael, and if it is behind by 40 daies to re-enter, Plo. 70. Kidwallies case. though no pl●ce is appointed where it sh●ll be paid at the 40 dayes end, it shall be referred to D. Con●ition of a bond is to make a lease before Michaelmas to the Obligee for 31 years, if A will assent, and if not, then for 21 years, 18 Eliz. diet 347. A will not assent the lease for 21 years ought to be made before Michaelmas. Affise of the moiety of a house, a carve of Land, and 40 shillings rent, and ruled onely a moiety of all is in demand. 24 Ass. 7. A man grants ten acres of his land in D. simul cum communia posture in omnibus terris suis, 6 Ass. 3 This shall be in D. onely, and not charge his lands elsewhere. 140 Relation shall make things have been, ● H. 7. 16. as if they never had been. The husband disagrees to a feffment made by his wife, it is voided ab initio, so that he may pled ne infeffa pas, A device is that executors may sell land, &c. when they sell all mean charges made by the heir in the interim shall be avoided by relation to the time of the death of the testator. ● H. 7. 1 H. 8. 10. I dissese A. to the use of B. the disseisee releas to me, and then B. agrees, this agreement by relation shall be as if he had agreed before the release, 14 H. 8. 18. and so shall defeat it. Jurors alien their Land away between the teste of the writ of attaint and judgement, yet they shall be charged to the King for the estrepment by relation. 12 E. 3. 26. Cause of assize brought was for rescuing a distress taken for rent, and then an office is found which entitles the King, who seizes the Land, and then an ouster le main is sued, the assize is gone for ever, because the King shall bee said in possession at the time of the rescous by relation of this office, ●1 Ass. 1. upon whose possession no distress could be made. See Plo. 281. 10 H. 7. 18. 141 Relation to defeat a thing, shall be intent a ad unum Husband and wife tenants in tail, 3 Report Case Butler and B. shee brings dower after his death, this unsetleth the estate was joint in them two, but shall not have relation to defeat a Reversion granted by the reversioner Atournament makes the services past ab initio, 48 E. 3. 16. 11 H. 7. 8. yet nothing of the arrears shall be paid in prejudice of the tenants which are third persons. The Lord is entitled to the marriage of an heir of the disseisee, the heir release to the dissessor, he is in now from the time of the first disseisen of a good estate, 7 H. 6. 12. but this shall not hurt the Lord of his Wardship, &c. An infant is enfeoffed and disagree, this defeats it ab initio, as to himself to avoid all damages, 3 Report Cas● Butler and B. but not to make a voided gift by his feffor good: a remainder is limited to the King, and before enrolment of the dead he grants this over, Ibib. and then the dead is enrolled, this will not make the grant good. 142 Relation will yield to necessity. The husband is essoined, and at the day fails to bring in his warrant, or doth not appear, the judgement shall relate to the time of the protection, 2 E. 4. 17. 21 Ass. 17. or essoign cast, &c. yet his wife may bee received for no time covenable was before to pray to be received until default, &c. 143 Relation shall not be to take away things collateral, &c. trespass is made to A. and after his estate is defeated by condition performed or Act of Parliament, 4 H. 7. 11. this shall not relate to take away his action vested, 3 Report Case Butler and Baker. &c. A bond is delivered to my use, I disagree this shall now loose his force from the time of the disagreement onely. 144 Relatio ad principium, &c. Lessee for yeers is bound to I. S. to make to him the best estate he can, 12 H. 8. 5. and afterward the reversion, or releases to him, the lessee shall be discharged of the bond if he grant the estate he had at the bond making. Estranger abates, after the death of the father, ●1 E. 4. 60. the son dyes his wife shall not have dower for this abatement shall relate to the death of the father. ● E. 4. 33. 8 H. 6. 22. administrator de son tort takes letters of administration, this shall relate to the death of the Intestate. An Escrow is delivered by a feme sole, 14 E. 4. 2. 21 H. 6. 3 Report case. Ionnings and B. 33 H. 6. 17. 1 Report 199. if she mary or die yet by relation it shall be good. An Act of Parliament hath relation to the first day of the Session. Presentment tempore belly is not good to gain possession, though ind●ction was in tempore pacis, a blow given in time of in merely memory, though he die when of merely memory it is not capital. Sale of goods is out of the market, and after they are brought into the market and delivered there, yet it relates to the first sale, &c. 1 Mar. Dyer. 99. and so takes away no property of an Estranger. 145 Relation to time▪ place, &c. In case of atteindor by verdict in felony, It shall relate to the time of the fact done, 30 H. 6. 5. of outlary it is otherwise, but in case of treason outlary shall relate to the fact done. Atteindor by Act of Parliament shall relate to the first day of the Parlia. 35 H. 8. B. crumb p. 77. Dyer 50. one shall not be accessary to a felony by relation, but onely from the death not blow given. Arbitrement was pleaded at D. scilicet that such an one shal grant an Annuity out of the Mannour of S.& in conclusion says, quod loco supradicto, &c. this shall relate to D. 12 H. 6. 17. and the Venire facias shal be thence a Venire facias was ad recognoscendum, if an Executor did administer aliqua bona that were the Testators after his death, these words after his death, shall relate to administer and not to goods, 7 H. 4. 37. to examine whether they came after the death or not. 148 Relatio sit ad accommodatiora. A man leases for the life of I. S. Hill. 19. Elia. Gowers case. & after gives all his lands& reversion of this parcel habendum all his lands and parcel cum acciderit proxime post mortem I. S. these last words shall relate to the reversion onely. The Obligee doth aclowledge he is satisfied, 9 Report Case Hickman. all bonds, and promiseth to deliver in all bonds( except one of ten pound, this exception-goes to the word satisfied, and restreins this and not onely to the words deliver in, 11 Report 32. see the word ( such) is to equals in the mischief and not to any before in the statute there name. See 22 E. 3. 4. Condition of a bond was, if the Defendant enter peaceably, so that the plaintiff may bring his action before michaelmas, in this case, these words before michaelmas shal relate to the entre 27 H. 6. 18. onely, and not to the bringing of the action. 149 Relation to avoid thing or a vain thing will destroy that was good in the premises. As a grant is by me of my lands in D. which I had by descent, or of the gift of I. S. if this he false it will destroy my grant, A bond to perform all Covenants between A. B. and C, 37 H. 6. 18. in such an Indenture, and there is not any such, the bond is not good, one makes an acquittance of debt, which was recovered by a judgement, &c. and there is no such it is voided, 11 H. 7. 6. husband and wife are seized of land, and a grant is made of the reversion of the land which the husband holds, this is voided to pass this reversion. Contra sepius. 33 H. 8. Dyer. 50. A bond is of thirty pound and the Obligee upon receipt of twenty pound, &c. makes an acquittance thus, 11ff. Grants 63 received in part of twenty eight pound, &c. the sum of twenty pound, this shall not make frustrate the acquittance if not that averment is that twenty eight pound was for another contract. A reversion of lands in D. quae omnia sunt, in lease to I. S. 48 E. 3. 18. for life is granted, though no such lease is, it is good. See Plou. Plo. Case Throgmorton. Adams case, 5. exception, 10 Rep. legates case, an indenture of defesanes refers to a Statute made primo Maii, &c. 17 E. 3. 35. Sir John Hardshals Case. and it was another day, yet it is good because an agreement was in the sum of the Statute, and name of the parties. See 20 Ass. 8. 26 Ass. 38. 31 Ass. 1. 148 Semel malus semper presumitur malus& contra. A Jury was challenged cum panello, 33 Ass. placito ultimo. for being made favourably by an Officer of the Sheriffes, and upon a new Ven. fac. part of the same jurors are returned by the sheriff himself, and ruled been, and the suspicion shall not be said to continue. 149 Similitude non currit quatuor pedibus Resommons is ita quod sit( in eodem statu.) Yet a default saved, which was before discontinuance, 5 H. 7. 39. 40. so essoign lies which did not before. 150 Sic utere tuo ut non laedas alieno. Lessee for years shall so take his hedgebote, 46 E. 3. 17. that he do not destroy common of estouers which another man hath there, he which hath common in Land not enclosed, 20 E. 4. 11. shall keep his cattle out of an estrangers land. If beasts are driven by the highway, he ought at his peril keep them out of the Lands adjacent to the way, &c. 20 E. 4. 11. 10 E. 4. 7. except in case where the owner is bound to enclose &c. but note, prejudice may ensue by my act upon my own land without danger, as where a man erects a wall, part upon my land, Pasch. 34. Eliz. C. Wigford vers. Gill. and I destroy this upon my land, and the rest by that means falls down this is excusable. 151 singular distributive sumpta aequat plurali. Tenant in assize makes several bars,& the plaintiff makes several titles, Dyer 325. and the tenant pleads veigne l●ssise supra titulo, this goes to all the titles. A lease is pro uno anno, and if they agree that he shall have the land for threee years reddendo durant termino predict. ten pounds annuatim this reservation goes to both terms. 10 Report Case. Loefeild. In debt the plaintiff declares that the defendant and his brother were bound in an obligation sigello suo sigillat, Mich. 33 Eliz- Case Briton& Bolton. this extends distributive to both. 152 Synonyma will not serve in our Law. The Statute W. 2. forbids entre, ubi ingressus non datur per legem, 9 H. 6. 19. now if in an indictment, &c. it is laid, quod ingressus est illicit, 5 Report Case Long. this is not good, so an indictment for murder by thes words, ex malitia precogitata necavit, &c. i● not good without the word, murdraivi. 153 Surplusage, what power and influence this shall have in Grants &c. And note some use may be made of it, as where a contract is to deliver a horse &c. and a bond is to deliver it, 8 E. 4. 22. Perkins. 784. now albeit by the contract the property be vested in the obligee, yet in this case if the horse is tendered to him, and he refuse, he hath lost the property, because this bond which was more then needed hath determined the contract, nota. 152 Totum continet suas partes& è converso. 30 E. 3. 13. 7 Report Case Bulwar. The Statute W. 2, which gives a writ ad petendum advocationem decimarum: implies he shall have this writ for a fourth part of Tithes. 2 Eliz. Dyer 186. A statute is made that the adjournment of Michaelmas term shall not hinder fines, &c. This implies that though part of the term onely is adjourned, that shall not let, but fines are well levied. A Statute is if a man is redissessed of land, Institut. 1. 154. he hath recovered before, such a penalty shall bee, if he is redisseised but of part of that Land, it is within that statute. A man hath a way for foot, horses and waynes, if this is made so straight that wayns cannot pass, which is onely part of that he hath way for, yet the writ shall be, quod obstruxit viam generally. 155 Totius& parts eadem ratio. Aid was granted for part of the Land charged with rent, it shall stand for all. 22 H. 6. 2. 24. He which diverts part of a water shall be said in law to divert it all, fallit regula aliquoties. A liberate comes to an Officer to pay a hundred pounds, if he have it all, Institut. 4. 116. he ought to pay it, but if he want part thereof, he is not bound to pay that part &c. 156 Totum qui concedit partes negare non potest. 23 Ass. 12. It is alleged in assize that all the lands within the fee of Saint Peter of york were departible between the males, and that the ten acres in question were within that fee, and the tenant would have said that these ten acres were not departible, but was not suffered. This doth not hold where the matter affirmed of parcel tends onely to alter the jurisdiction. 9 E. 3. 18. As where a Mannor is alleged to be ancient Demesne, he may say that Black acre parcel of the Mannor is Frankfee. Fallit regula, also in case of time that which may be said of a month of time, cannot of a week, &c. As the statute 5 Eliz. gives a penalty against him trades by the space of a month, not being an apprentice, &c. if he trade but a week or fortnight he shall forfeit nothing at all within this Law. 157 Tort, of his own wrong, a man shall not take advantage. 42 E. 3. 18. 5 Report Case Wimarke. I.S. takes from me the release he had made, now I shall pled it without showing it. Lessee for years cut trees, 4 Report Case Harlakenden. he shall not have avail of this to keep it toward reparations, &c, Husband and wife are impleaded, and the demandant holds the wife of the tenant that shee cannot appear, 10 E. 3. 40. this shall not turn to a default in the tenant. See 4 Report Case Sir Andrew Corbet,& 34 H 6. 11. Regula, fallit, in case he to whom the wrong is done had it in his power to remedy it, there it shall prejudice him if he do not remedy it, and it shall be to the avail of the wrong door, as I am bound to infeffe I. S. before Michaelmas of B. acre, and the obligee, 8 Report 92. Frances Case. disseise me of that ●cre, here because I may enter and regain ●he Land and make the feff, if I do not I have forfeited my bond: So where Covenant is to build a house by the lessee before the end of the term, and lessor enter upon him and outs him, yet he is bound to do it, or else the Covenant lies, 36 Eliz. Case. Farewell and Barker. unless there be special matter to excuse it, as if the other hold him out by force. 158 Utile per inutile non vitiatur, nec emendatur. 4 Report 93. Of this nature is all Surplusage in grants, deeds, &c. It doth neither good nor ill. A. release to B. ad primum diem Maii quod esset. 35 H. 8. Dyer 57. All Covenants, &c. this is a present release, and the subsequent words ad primum diem Maii quod esset are idle. A dead is that such a thing shall be done before Whit-Sunday next, being the first day of June, Pasch. 1. Car. Case Bishop of Norwich. Vid. 41. Ass. 21 though Whit-Sunday is the fourth of June, this shall not frustrate the agreement, but shall be made on Whit-Sunday. Uses are declared in an indenture in tail, in which is power of revocation, 8 Report Case Frances. and upon recital of this dead he declares that praedicti usus, to him and his heirs shall be voided, yet this a good revocation, and the other word● idle, scil. to him and his heirs. A rent is granted for legality of partition, Institutes 1. 146. 147. Vid. 30. H. 6. 14 this is good without dead, now annuity doth no● lye though a dead is in this case made because surplus, 14 E. 4. 2. &c. Exception, sometimes idle and vain words will have operation as A. 2 Report Case Buckler. release to B. omni modas( which the said B. hath against A.) this was adjudged a voided release. Lessee for life make● a lease for three years,& then grants tenement a predict a habendum after michaelmas, 4 Report Case Palmer. all this is voided. The sheriff in executing a Fiere facias takes upon him upon the sale of a term, to nominate the beginning of the term, and says it was 1 Maii, where it was another day: this surplus makes the whole execution null. An union was pleaded to be concurrentibus his quae jure debent, &c. and by assent of the Ordinary, this surplusage expressly contradicts that was implyed in the concurrentibus his, &c. in which the Ordinary might well have been intended also which now appears that he is not, 10 H. 7. 19. and so vitiates all the rest, &c. for surplusage in cases of pleading, the Law varies upon several distinctions, in one case it shall hurt ●ad not in another, where surplusage ●akes a contradiction there it will do ●urt; 22 Ass. so in case of a Writ where there is ●ot substance to maintain the action, 39 H. 6. 38. but ●or to increase damages, it shall do no harm. Plo. 85. 46 E. 3, 3. 1 E. 4. 7. 37 H. 8. 3. Register 6. 6. 12 H. 7. Kell. 10 H. 6. 10. 8 Report 159 Dyer 235, 236. 50 E. 3. 6 34 H. 6. 48. 159 voided, in a Statute where it is said what sense it hath, &c. 28 H. 8. die 28. Obseeve first where a Statute says such a thing shall be voided, 3 Report 59. Plo. 107. yet the ordinary circumstances are to be observed, which by law are required, to avoid such a thing as entre, and the like. Institutes 1. 273. The Cannon saith that a second shall bnfice voided, see if before sentence, vide Statut. 21. H. 8. by that it is voided presently and lapse shall incur, and protheine avoidance is not grantable by a Patron because it's voided. If it be enacted that a bond made by I.S. shall be voided, as upon the Statute of 23 H. 6. of Sheriffes, such a clause is for a bond taken by a sheriff otherwise then is there directed, 5 Report 119 yet he shall not pled non est factum, but the special matter and demand. Plo. 169. judgement, See action Stat. W. 2. Case 1. whic● says, Plo. 137. quod finis sit nullus, yet it is not absolutely voided, but avoidable by error, an● not otherwise, the Stat. of 3 Eliz. is tha● grants of deans, &c. shall be voided, ye● is not so in all respects, 11 Report 73. for it's good against him that made it, but voided as to the successor. 160 voided, where a thing shall be for part, 3 E. 4. 7, 8. or for a certain time onely. A man contracts for wages beyond that the Statute alows, this is voided as to the wages, but shall charge him in an action upon the Statute. abridge. assis. 87. A man enters into Religion, and his wife aliens the Land, of which they were seized, and then he is darreined, he shall avoid this for his life, but the alience shall hold it against the wife, so a term may be avoided by tenant in dower& revived afterward, 7 Report come. Bedfords Case. and it shall be good against the heir. 161 voided act as to that was intended, may yet be good and effectual to a collateral purpose. An appeal is voided being brought by the youngest son, 21 H. 6. 29. yet this shall him excuse to be indicted, if the party is acquitted upon this, but otherwise it is in case a woman brings an appeal of the death of another, then her husband because it is apparently ill within the record itself. A release of a feme covert is pleaded, this is voided to make a bar, 18 H. 6. 29. yet it will amount to a waiver of a good plea pleaded before to the writ. An issue joined in waste was a jeofale, the same plea notwithstanding may bee a confession of the wast. 10 Eliz. Dyer 272. return is by one Coronor of a Rescous upon a writ made to more Coronors, it is a void return, 39 H. 6. 42. yet it will be a good suggestion upon which a process shall issue for the Rescous: But nota, such a voided act shall never bee good or avaleable in the same kind it was voided. Pasch. 11. Car. Cafe. Baker and Hagget. Tenant in tail is, the remainder to himself in fee, he makes a feoffment by dead, and a letrer of Atourney, &c. if this livery is not executed the remainder shall not pass by the dead: Bargain and sail is of a mannor, 11 Report 48. and all the trees the dead is not enrolled, this shall not work as a grant of the trees being of no effect for the Land. A man leases a mannor, 16 H. 7. 3. and hath nothing in demesne at the time, but in services these shall not pass, but this exception hath its exception, as where the thing is voided, quoad modum onely as a fine, 4 Eliz. Dyer 215 upon 4 H. 7. is not good for lack of proclamations, yet it's a good fine at the Common Law. 1 H. 6. 4. 7. A Statute is acknowledged which is not good, for some failers, &c. yet it is a good bond. 162 Volenti non fit injuria. A man shoots giving warning to all, 18 E. 4. 8. 19 E. 4. 2. &c. and one will go to the mark and is hurt he is without remedy. I am bound to make a house if you prohibit me to come upon the land I may pled this in bar, exception is where the fault and injury is essential to the thing and vitiates it, and is not personal, the law is otherwise, as where I will exchange with one hath a bad title and its known to me. So if I know of fraudulent conveyance and you buy the land, 5 Report Case Gooche. in both these cases the party shall have the remedy though he was willing to the wrong, &c. 163 Verba discretiva, shall not extend to joint words& contra. The Amercements of my tenants are granted, 22 Ass. 49. this shall not extend to those hold of me and of others. where its spoken of an act to be made by A. Perkins. 158.& 310. it shall be by him sole and not jointly with others, but a surrender of all his leases, is good of those he holds jointly as of others. Statute 8. H. 6. is if one enter with force or peaceably and hold with force an action lies, Plo. 8. 6. 3 E. 4. 19. yet if both are done the action lies. 164 Verba conjuncta non capiantur discretive& contra. A Recordare is to remove a plea between A and B. 3 H. 7. 14. Plaintiffs, and C. and D. Defendants, and every plaintiff would have counted severally and not permitted, for it shall be intended joint plaint onely. 29 E. 3. 20. A statute speaks of an act to be done by two parties, this shall be intended joint act. 5 E. 3. 14, 15. Contra where they shall be taken discretive, 2 R. 3. 18. three men then submit of all matters between them and A. 21 H. 7. 29. this extends to matters several among them, as well as joint. several Demises and Rents are in one Indenture, No lib. Entry 115. and in conclusion he covenants to pay reditum praedictum, this goes to all the Rents. Two join in a grant of omnia bona sua, so a release to B. and C. all actions, 19 H. 6. 4. this extends to their several goods and several actions to have operation to the most advantage against him made the dead or grant. Three several men covenant separatim by Indenture and in this, one is bound to perform the covenants made between A.B.& C. &c. he shall be bound to perform any covenant made betwixt them seperatim. 11 H. 7. 6. several rents are behind by a Prior and his predecessor, and in his Count he concludes, non dum rediderunt, And this holden good though part was due in the time of the Predecessor, 17 E. 3. 2. and part since. 165 Una hirundo non facit ver. A Lord hath allowance one time to have Conusans of plea, 8 E. 3. 2. ubi ipse pars fuit, this will not serve at another time to hold such plea. 166 Universale non comprehendit omne particular. A man is retained to serve in all occupations. 38 H. 6. 13. In debt for wages the defendant may wage his law, which yet he cannot do in case of husbandry, Ergo. In decies tantum, it is no plea for the defendants to say that they took not any money for saying their verdict, 21 H. 6. 20. but they shall say, nec aliquis eorum, &c. See 3 Report, marquis of Winchesters Case, where all rights in a statute did not extend to right of action. 4 H. 7. 8. 6 Report 56. So where an exigent is returned against three; quod non comparuerunt, it must be nec aliquis eorum comperuit, &c. else its not good. 166 Ubi dvo jura in una concurrunt persona aeque est ac in diversis. Institut. 1. 194. 195. Institute 3. 134 Holcroft Case. Articuli supper chartas ordaneth. That in case of death of one within the Verge, the Coroner of the County, and of the household of the King shall join in the Inquire, and holden if one is Coroner of both he shall well executeth is authority. 167 Vigilantibus& non dormientibus subveniunt leges. This the reason of lapse incurring for lack of presentment. Warranty barring for lack of entry, descents bar entries for lack of claim, title to tenancy by courtesy is lost for lack of entry. statutes of limitations bar actions, Litt. 551. the first Grantee that its attornment shall have the Reversion or Signiory, &c. and a hundred Cases more are ruled upon this ground. 36 H. 6. 1. A man is outlawed and error is in the Record this may be reversed, the same term by plea, but after not. A trespass is committed to two joynttenants, and each of them releases, and after brings trespass, and the defendant pleads the release of one of them which is found against him he shall not be afterward admitted to pled the other release, because he hath surceased his time. Finis Topicorum legum Angliae. Which was allowed to the press two yeers since in furore belly, but the Booksellers were unwilling to Print it then because it was in French and few in town.