Law, Book 1 – Book 2

Law · Book 1 – Book 2

p. 1THE FIRST BOOKE of Law.

CHAP. 1.

Of the Law of Nature.

LAw is an Art of wel ordering a Ciuile ſocietie. In Greeke it is called foreign a diſtribuendo, becauſe it giues and diſtributes right to euerie one. In Latine it hath its name Lex, not a ligando, as ſome would hauehave it, although Law indeed be vinculum ciuitatis, nor a legendo, which is, to reade; though I find that to pleaſe Bracton moſt; but as hee that beſt could tell deriues it, a legendo, Bract. lib. 1. ca. 3. Cicol. 1. de Legib.which is to chooſe, becauſe of the choice & …xquiſite wiſedome that is in it. Nam vt il… (ſaith Tully ſpeaking of the Grecians) …quitatis, ſic nos delectus vim in Lege ponimus, & proprium vtrumque legis eſt. The Hebrues …all it foreign (thorah) from the roote foreign (jarah) p. 2which is to teach: becauſe it is the doctrine of truth, as Plato ſaith in his ninth booke foreign Leges ad hominum doctrinam ponuntur. So that Law carrieth with it, and hath (as it were) incloſed in the name and nature of it, thoſe three lawes foreign and golden chaine of all good learning, Lex veriattis, Lex Iuſticiae, Lex ſapientiae. And therefore is not onelyonly foreign, ſcientia, but Plato li 4 de Reipub foreign.foreign, Scientificiſſima. Whereupon Plato telleth vsus, Nomen menti conſentaneum, (that is, to God, whom the Philoſophers cal foreign, or mens, which is Truth, Wiſdome, and Iuſtice it ſelfe) poſſidet diuina nobis & admirabilis lex. So that the name it ſelfe doth ſhew the Authour from whence it came: and as he ſaith, Qui tanti talem genuere parentes.

Lawes are Natiue or Poſſitiue. Tully in his Oration pro Milone, takes vsus out this Leſſon: Eſt enim haec non ſcripta ſed nata lex, quam non didiſcimus, accepimus, legimus, verum è natura ipſa arripuimus hauſimus, expreſſimus; ad quā nō docti ſed nati, non inſtituti ſed imbuti ſumus. In his firſt booke de Legibus, he doth againe repeate it. Conſtituendi vero iuris ab illa ſumma Lege capiamus exor dium, quae ſeculis omnibus ante nata eſt quam ſcripta Lex vlla: Where this Natiue Law hee calleth ſūmam legem, as that from which all other lawes doe ſtreame:

Natiue, are thoſe Lawes which are in vsus of themſelues, and therefore vnchangeable and perpetuall.

p. 3Theſe are two fold, like thoſe two great …hts which God hath ſet in the firma…ent of our heart, Nature and Reaſon, …or being proper to a man, as hee is a man and reaſonable creature, they may be diuided as reaſon it ſelfe is diuided. They that …ue trauailed moſt in the grounds of Nature, diſtinguiſh that excellent facultie of Reaſon (which of all earthly creatures man onelyonly hath) into two other faculties, foreign or the mind, and foreign or the reaſoning part: foreign they call that facultie of the ſoule that offreth vntounto vsus things cleare & lighltſome of themſelues, without any further reaſoning or diſcourſe. By foreign they meane that facultie of the ſoule, that by diſcourſe of reaſon doth deduce and draw one thing from another. From hence the maſters and profeſſors of the art of reaſon, make indgement (which is the flower of all reaſon, and in effect nothing els but ratio coniuncta, reaſon ſet together) to be Noeticum or Dianoeticum We by their example may diſtinguiſh thoſe which wee call Natiue Lawes, and are the foundation of all other lawes into Primitiue, which is that they call Noeticum, we, the law of Nature, or ſecundarie rules of reaſon, which is their Dianoeticum, with vsus the Law of reaſon. And theſe verie names of foreign and foreign or foreign, which is all one reaſon and the diſcourſe of reaſon, both Plato and Tully ſpeaking of the lawes doe giuegive them.

The law of Nature is that ſoueraigne p. 4reaſon fixed in mans nature, which miniſtreth L…x natura eſt ratio ſumma incita in hominis naturaquae iube… ea quae facienda ſunt, ꝓbibetque contraria.common principles of good and euill. In effect nothing elſe but thoſe foreign or Communes noticiae, which the Philoſophers ſpeake of; That men muſt liue peaceably together: That we are not to do vntounto another that which we would not hauehave done vntounto vsus: That Iuſtice is to be done to all men, and ſuch like. Of this Tully ſpeaketh 2. de legibus. Principem illam legem & Cic. lib. 2. de Leg.vltimam mentem eſſe dicebant. Where hee likewiſe calleth it the high & ſupream law of all. And in another place, Natura iuri… ab hominis repetenda natura, becauſe the light herof as the light of the Sun ſhineth moſt clearely, and in the eyes of all men.

CHAP. 2.

Of the Law of Reaſon.

THE law of Reaſon is that whic… deduceth principles by the diſcourſe of ſound reaſon. Wherof T… ſaith, Ratio cum eſt in mente bomini… confirmata & confecta, lex eſt: An… Cic. lib. 1. de Leg.againe, Lex est radius diuini luminis, and r… cta ratio ſūmi Iouis. Plato, by way of Poeticall Plat. l. 1. de Legib.fiction doth imagine that there were a… the firſt, two contrarie humors that raigne… in man, and (as it were) two fooles of hi… councell that did rule him, Pleaſure an… p. 5…ine. Each had two other affections to …tend them, Hope of good things to come, and Feare of future euils, whereby mens minds were haled and pulled hither and thither, and diuerſly diſtracted. Then to gouern both, God ſet in man foreign, the reaſoning or diſcourſing part, to teach what is good or bad in either; which hee calleth foreign, the golden and ſacred rule of reaſon. Wee may terme it, that vncorrupt reaſon which Adam had at the firſt in full perfection: But through Adams fall (that brought ſinne into the world, and the fruit of ſinne, Blindneſſe and corruption) that excellent image of Reaſon is now ſo wonderfully defaced euen in the beſt and wiſeſt, that the light of this, as the light of the Moone, ſhineth more obſcurely: But yet ſhineth, ſo that from it all the other Lawes receiue their Light.

And hereupon are grounded more or leſſe cleerely, diuers rules of reaſon, that euerie where goe for vndoubted Oracles, which (confirmed by iudgement, learning, and much experience, and rightly and wel applied) are ſo many ſtarres and ſhining lights, to direct our courſe in the arguing of any caſe: yea ſuch is their ſingular and incomparable vſe, that, as Lords paramount, they rule and ouerrule the grounds themſelues. And rather than any of theſe (rightly vnderſtood) ſhould faile, the verie maximes and principles of the poſitiue law p. 6will yeeld, as to a higher and more perfect Law.

CHAP. 3.

Of rules taken from other learnings.

THE rules of reaſon are of two ſorts; ſome taken from forreigne learnings, both diuine & humane: the reſt proper to Law it ſelfe.

Of the firſt ſort are the principles, and ſound concluſions from forreign learnings; Out of the beſt and very bowels of Diuinitie, Grammer, Logicke; alſo from Philoſophie natural, Politicall, Oeconomicks, Morrall, though in our report… and yeere-bookes they come not vnderunder the ſame tearmes, yet the things which ther… you finde are the ſame; for the ſparkes o… all Sciences in the world are raked vp in the aſhes of the Law: and well doth one ſay, Non ex Praetoris edictis, neque a 12 tab… lis, Cic. l. 1. de legibus.ſed penitus ex intima philoſophia hauriend… iuris diſciplina eſt. Hee that will take th… whole body of the Law before him, an… goe really and iudicially to worke, muſ… not lay the foundation of his building i… Eſtates, Tenures, the gift of Writs, an… ſuch like, but at thoſe currant and ſoun… principles which our bookes are full of.

Firſt from Diuinitie, the doctrine… p. 7…ligion, the head and maſter-peece of all the reſt, whereof S. Auguſtine ſaith truly, Aug. lib. 9. de Civitat. dei.O…nium legum eſt inanis cenſura, niſi diuinae legis imaginem gerat. From hence we hauehave theſe two rules.

To ſuch lawes of the Church as hauehave 34 H. 6. 40. P…ſot. A…els leys que eux de St. egliſe ont en auncient eſcripture, covient pur nous a don… credence: car ce… eſt common ley, ſur que touts manner leys ſont fondues, 4 Eliz. 265.warrant in holy Scripture, our Law giueth credence.

1 The Sabbath day is no day for law Caſes, vponupon a fine leuied with Proclamations according to the Statute, 4 H. 7. Cap. 24. if any of the Proclamations be made on the Lords day, all the Proclamations are erronious, for the Iuſtices may not ſit vponupon that day, but it is a day exempt from ſuch buſineſſe by the Common-law for the ſolemnity of it, to the intent that all people may apply themſelues that day to praier and ſeruing of God.

No Plea ſhall be holden Quindena paſchae, becauſe it is alwaies the Sabbath, but it ſhall be Craſtino quindenae paſchae.F. N. B. 17. f.

If a Writ of Scire facias out of the Common-place 1 Eliz. Dy. 16…beare Teſte vponupon a Sunday, it is error, becauſe that is not Dies iuridicus in Banco.

No ſale vponupon a Sunday ſhall bee ſaid a 12 E. 4. 8.ſale in market ouert to alter the property.

Of Grammer, the rules are infinite in the Etymologie of words, and in the conſtruction of them, what their nature is p. 8ſingle, what ioyned with other: among the reſt which need not be remembred, this one wee hauehave common in our Bookes.

2. Words, in conſtruction muſt be referred to the next antecedent, where the matter it ſelfe doth not hinder it.

An Endictment of murder, found in this ſort, That Eliz. fuit in pace &c. quoſqu… 32. H 8. Dy. 46. b.A. vir praefat. Eliz. de D. in Com. S. Yeoman, did kill her, is good; for the addition Yeoman, muſt of neceſſity referre to the husband, becauſe a woman cannot bee a Yeoman; but an endictment quouſ que Alicia S. d… D. in Com. S. vxor I. S Spinſter, &c. is no… good againſt Alice S. for there Spinſter being an indifferent addition, both for ma… and woman, muſt referre to I. S. which i… the next antecedent, and ſo the woma… hath no addition. So of an enditement againſt 9. E. 4. 48.I. S. ſeruiens I. D. de D in Com. Midd… Butcher: This is not good, for, Seruant i… no addition, and Butcher referreth to th… Maſter, which is the next antecedent.

From Logick; In the Maxime of cauſes and effect…

3. The cauſe ceaſing, the effect doth lik… wiſe ceaſe.

The King granteth an Office to one … p. 95. E. 4. 8. b.…, and ten pound fee during life prooffi…illo, now if the King put him from his office the fee ſhall ceaſe.

The Executor, nor husband (after the 7. Eliz. 293. b.death of his wife gardein in ſoccage) ſhall retaine the Wardſhip, for the Garden hath it not to his owne vſe, but to the benefit of the Heire: and the Executor, or husband hauehave not the affection which the Teſtator or his wife had, which was the cauſe that the Law gaue them the Wardſhip.

If a ſtroke be giuen the firſt day of May, and the King pardon him the ſecond 13. Eliz. 401.day of May, all felonies and miſdemeanors, the party ſmitten dieth the third day of May, ſo as this is no felony till after the pardon, yet the felony is pardoned, for the miſdemeanor is pardoned, and therefore all things purſuing are alſo pardoned.

The King hath a Ward, pur cauſe de gard, and after maketh liuery to the firſt 13. E. 4. 10. b.Ward, now the ſecond Ward ſhall not ſue liuery.

If two Coparceners make a Leaſe reſeruing a rent, they ſhall hauehave this rent in common, as they hauehave the reuerſion: But if afterwards they grant the reuerſion, excepting the rent, then they ſhall bee Ioyntenants of the rent.

It is no principall challeng to a Iuror that he hath married the parties mother, if ſhe 14. H. 7. 2.be dead without iſſue, for the cauſe of fauour is remoued.

p. 104. Things are conſtrued according … that which was the cauſe therof.

A man makes me ſweare to bring hi… 44. E. 3. 14. b.money to ſuch a place, or elſe hee will kill me, I bring it him accordingly: This is folony in him. So if hee make me ſweare … 14. Aſſ. pl. 20.ſurrender my eſtate vntounto him, and I do f… afterwards, this is a diſſeiſin to me.

One impriſoned till hee be content … 21. E. 4. 68. b.make an obligation at an other place, an… afterwards he doth ſo, being at large, ye… he ſhall auoid it by dures of impriſonmen…

Outlary in treſpaſſe is no forfeiture o… 3. E. 3. 84.land, as outlary of felony is, for thoug… the not appearing be the cauſe of outlar… in both, yet the force of the outlary ſha… be eſteemed according to the hainouſneſ… of the offence, which is the principall cau… and foundation of the proceſſe.

A man and feme ſole hauehave a villein, an… afterwards entermarry, and the villein pu… chaſeth land, they ſhall not hauehave the lan… by entierties, but by moities ioyntly, or i… common, as they had the villein.

5. According to that which was the b… ginning of it.

If a Seruant (departed out of his M… ſters 33. Aſſ. pl. 7.ſeruice) kill his Maſter vponupon a mali… that he beare him whileſt hee was his ſe… uant, it is pettie treaſon.

p. 11…. erects a Shop vponupon the Kings Freehold, 10. Eliz. Dy. 266. b.the King grants the land to B. in fee; A. before entrie or ſeiſor of the ſhop by the Kings Patentee, continueth his poſſeſſion and dieth ſeiſed. This is no diſcent to …ll the Patentees entry: for by his firſt erecting of the Shop, hee could gaine nothing againſt the King.

6. And therefore a deriued power cannot be greater than that from which it is deriued.

The Atturney of one that is diſſeiſed Litlet.cannot make claime off from the land, if the diſſeſſee himſelfe durſt hauehave gone to the land.

The Bailiffe of a diſſeiſor ſhall not ſay, 28. Aſſ. pl. 4.That the Plantiffe neuer had any thing in the land, for the Maſter himſelfe ſhall not hauehave that plea, becauſe he is not Tenant of the Freehold.

The Seruant ſhall bee eſtopped to ſay, 2. E. 4. 16.The Free-hold is his Maſters, by recouery againſt his Maſter, thou'gh the ſeruant himſelfe be a ſtranger to it, for he ſhall not bee in better condition than hee in whoſe right he claymeth.

7. Things are diſſolued as they bee contracted.

An Obligation, or other matter in writing 19. E. 4. 1. b.cannot bee diſcharged by an agreement by word.

p. 12In an annuity growing by preſcription 5. H. 7. 33.rien arere is a good plea, for this preſcription is a matter in fait: but in an annuity by deed it is no good plea, without ſhewing an acquittance.

When a man auoides the Kings title, by 4. H. 7. 7. b.as high a matter of record as the King claimeth, he may hauehave it by way of plea, without being driuen to his petition, though the King bee entituled by double matter of record; as one is attainted of treaſon by Parliament, and an office findes his lands, whereby the King ſeiſeth them, The party may alledge reſtitution by Parliament, and a repeale of the former act.

8. Things grounded vponupon an ill and void void beginning cannot hauehave a good perfection.

An Infant, or a feme couert make their 10. El. 344.will, and publiſh it, and after dying of full age, or ſole, yet the will is nothing worth.

One diſſeiſed of two acres in D. releaſeth all his right in all his lands in D. and deliuereth it to a ſtranger, to bee deliuered ouer to the diſſeiſor as his deed, ſuch a day: before which day, the diſſeiſor diſſeiſeth him of an other acre in D. and then the releaſe is deliuered ouer to him, yet nothing of the right of this third acre paſſeth by the releaſe.

p. 139. Hee that claimeth paramount, a thing ſhall neuer take benefit nor hurt by it.

Two Ioyntenants, one makes a leaſe 2. & 3. El. Dy. 187.for yeares of his moity, reſeruing a rent, and dyeth. The ſuruiuing Ioyntenant ſhall hauehave the reuerſion of his moity, but not the rent, for hee commeth in by the firſt feoffor, and not vnderunder his companion. So of the wife, where the husband being leſſee for yeeres in her right, maketh a leaſe of part of the terme, reſeruing a rent.

An Executor recouereth and dieth inteſtate, adminiſtration of the goods of the firſt teſtator is committed to I. S. I. S. ſhall not ſueexecution vponupon this recouery.

Dower cannot be aſſigned, reſeruing a rent, or with a remainder, ouer, for ſhee is in from the husband, and not from him that aſſigneth dower.

10. According to the end.

Vouchee commeth into the Court to 31. E. 3. Ioynder in ayd. 10.be viewed, and being viewed, is awarded of full age; yet hee ſhall not be driuen to anſwer, till he come in to the ſame intent by other Proceſſe.

The vouchee, vponupon a Grand cape ad valentiam, 19. E. 4. 3.ſhall not loſe the land, though he cannot ſaue his default, for the proceſſe is onelyonly to this end to hauehave him to appeare.

A man that is warned by Writ to anſwere p. 1450. aſſ. pl. 2.to a matter ſhal not be driuen to anſwere any other matter than is contained in that Writ, though the King bee partie. As if by office it be found, that lands in chiefe diſcended to I. S. a foole naturall, and that A. occupieth them, whereby a Scire facias goeth out againſt A. to anſwere why the lands ſhould not bee ſeiſed into the Kings hands for the Ideocie of I. S. A commeth in and pleads, That I. S. when he was of perfect memorie, made a releaſe to one B. who infeoffed A. This is good enough without ſhewing any licence of alienation to diſcharge himſelfe for the purchaſing of thoſe lands.

In the maxime of Subiects and adiuncts.

11. Where the foundation faileth, all goeth to the ground.

A Church appropriated to a ſpiritual corporation, 3. E. 374. b.becommeth diſappropriate, if the corporation be diſſolued.

A diſſeiſor of lands in ancient demeſne 49. E. 3. 8.the Lord confirmes vntounto him to hold at the Common Law, the diſſeiſee reentreth; now the land ſhall be ancient demeſne againe: for the eſtate (whereupon the confirmation ſhould inure) is defeated.

When an eſtate (to which a warranty is Lit.knit) is vndone, the warranty alſo is vndone. As if Tenant in taile diſcontinue, and the diſcontinuee is diſſeiſed (or make p. 15a feoffement vponupon condition) in whoſe poſſeſſion a collaterall anceſtor of the iſſue in taile releaſeth and dieth, the iſſue is barred. But if the diſcontinuee enter vponupon the diſſeiſor (or vponupon the feoffee for the condition broken) the iſſue is reſtored to his formedon.

12. Things incident cannot be ſeuered.

Eſtouers, or wood graunted to be burnt 12. El. 381.in ſuch a houſe, ſhall goe to him that hath the houſe, by whatſoeuer title: for one is inſeperably incident to the other.

Lord & Tenant by fealtie and homage, the Lord releaſeth his fealtie; this is void: 7. E. 4. 11.for fealtie is incident to homage.

An office of skill and diligence, or annuitie, pro concilio impendendo, cannot be forfeited 12. El. 379.by attainder of Treaſon.

A Court baron is incident to a mannor, and Court of Pipowders to a Faire: therefore 19. H. 8. Br. incidents 34.one cannot grant the mannor or faire, reſeruing thoſe courts. Where one holdeth of a man to keepe his Caſtle the Lord cannot 31. E. 3. aſſ. 441.grant his Caſtle gard, reſeruing the Caſtle.

13. Things by reaſon of another, are of the ſame plite.

The cuſtome of Gauelkind is not changed, though a fine or recouerie bee had of the ſame at the Common Law: for this is p. 16a cuſtome by reaſon of the land, and therefore runneth alwaies with the land.

But otherwiſe it is of lands in auncient 6. E. 6. Dy. 72. b.demeſne, partible among the males: for there the cuſtome runneth not with the land ſimply, but by reaſon of the auncient demeſne: and therefore becauſe the nature of the land is changed by the fine or recouerie from ancient demeſne to land at the Common Law, the cuſtome of parting it among the males is alſo gon.

An erronious recouerie had of lands in F. N. B. 21. b.Boroughengliſh, the puiſne ſonne ſhall hauehave a Writ of Error, becauſe the land it ſelfe goeth to him. So ſhall all the ſonnes of lands in Gauelkind.

Two Coparceners make partition, and 42. E. 3. 3.one couenants with the other to acquit the land: now if the Couenantee alien his part, the Alienee ſhall hauehave a writ of Couenant.

Perſonall things.

14. Cannot be done by another.

Suite of Court cannot be done by another.7. H. 4. 19.

A man cannot excuſe himſelfe of a contempt 22 E. 4. 34.(as of not ſeruing the Kings Proceſſe) by Attornie, but in proper perſon.

15 Cannot be granted ouer, as matters of pleaſure, eaſe, truſt, and authoritie.

p. 17A licence to hunt in my parke, to goe to 12. H. 7. 25.Church ouer my ground, to come into my houſe, to eate and drinke with me, cannot be granted ouer. So of a way granted for 7. H. 4. 36.life ouer my ground.

The Patentee for life of an office of truſt, 11. E. 4. 1.…s to be a Chamberlaine of the Exchequer: Squire of the bodie cannot aſſigne it, vnleſſe it be ſpecially limitted in his Patent that he may. For then he might grant it to one in whom the King hath no truſt, or that would be negligent &c.

The keeperſhip of a Park, Stewardſhip, 12. El. 179.Bailywicke of Husbandrie, &c. for life, cannot be granted ouer, becauſe they are offices that require skill and diligence.

A. licenceth B. to doe an act: B. cannot Br. licences 25.…nt this licence to another.

A Warrant of Atturney made to one to 19. H 8. 10.deliuer ſeiſin, he cannot grant this his authoritie ouer.

16. Die with the perſon.

When a Corporall hurt or dammage is 12. H. 8. 12.done to a man, as to beate him &c. if hee or the partie beaten die, the Action is gon.

Leſſor Couenants to pay quitrents during 1. & 2. P. & M. 114.the terme, & dieth, his executors ſhal not pay them: for it is a perſonall Couenant, which dieth with the perſon.

Among the diſagreeable arguments.

Firſt from thoſe that differ onelyonly in a certaine p. 18reſpect and reaſon, not in déed and in nature.

Things doe inure diuerſly, according to the diuerſitie of

17. Time.

Lands giuen in Frank mariage, reſeruing 26. Aſſ. pl. 66.a rent, the reſeruation is void till the fourth degree paſt, and afterwards good.

Perſon viz.

18. The ſame perſon.

One that hath a rent charge going out of 14. H. 8. 6.the wiues lands, releaſeth it to the husband and his heyres: the husband yet ſhall not hauehave it▪ but it ſhall inure to him by way of extinguiſhment onelyonly, as ſeiſed in right of his wife.

19. Seuerall perſons.

A man makes a leaſe of a Mannor, except 1. & 2. P. & M. 104.an acre, this acre is no part of the manor, as to the leſſor, but as to him that hat… right to demand the mannor by an eig… title, it remaineth parcell, and therefore h… ſhall make no forepriſe in his Writ.

If tenant in taile and his iſſue diſſeiſe th… diſcontinuee of tenant in taile; and tena… 11. E 42.in taile die, whereby the lands diſend … the iſſue: Now he ſhall be remitted, an… ſhall be in as tenant in taile againſt eue… p. 19ſtranger, and derraigne the firſt warrantie; but not as againſt the diſcontinuee, becauſe he was Particeps Criminis.

Then from Relatiues.

20. No man can doe an act to himſelfe.

A man cannot preſent himſelfe to a benefice, make himſelfe an officer, nor ſue 13. H. 8. 22.himſelfe: and therefore when a man hauing right to land, hath the freehold caſt Lit. 147. b.vponupon him by a latter title, he ſhall bee ſayd in of his ancient title, becauſe there is no bodie againſt whom he may ſue, but himſelfe, and he cannot ſue himſelfe.

No more can a man ſummon himſelfe.8. H. 6. 29.

And therfore if the ſherife ſuffer a common recouerie, it is error, becauſe hee cannot 3. El. Dy. 188.ſummon himſelfe.

A man cannot be both Iudge and partie in a ſuite.4. M. B. com. 25.

And therefore if a Iuſtice of the Common place be made a Iuſtice of the Kings Bench: though it be but hac vice, it determineth his patent for the Common place. For if he ſhould be Iudge of both Benches together, he ſhould controll his own iudgments: for if the Common place erre, it ſhall be reformed in the Kings Bench.

Of Compariſons.

From the equals.

p. 2021. Things are to be conſtrued Secundum equalitatem rationis.

VponUpon a recogniſance acknowledged by (c) 27. Eliz. Coo 3. 136. S… Willi Herberts caſe.the Anceſtor, or a Iudgement in an Action of Debt giuen againſt him: if he die ſeiſed of two acres, whereof one holden in Borough Engliſh, or hauing iſſue two Daughters which make partition, or if he die without iſſue, whereb part of his land diſcendeth to the heire of his fathers part, and part to the heire on the part of the mother: in all theſe caſes if one onelyonly be charged, he ſhall hauehave contribution againſt the other: for they are in aequali iure.

If two, foure, or more men being ſeuerally D 26. als pl. 37.ſeiſed of land, ioyne in a recogniſance, all their lands muſt equally be extended.

And this is a Logicall vertue, a kinde of Bract. l. 1. cap. 3.equitie as Bracton calleth it, where he ſaith, Equitas eſt rerum conuenientia quae paribus in cauſis paria iura deſiderat, & omnia bene coaequi parat: Et dicitur aequitas quaſi aequalitas. Whoſe nature is to amplifie, inlarge, and adde to the letter of the Law.

Eſpecially this ſhineth & ſheweth forth it ſelfe in the expoſition of Statutes, by extending things there prouided to miſchiefs in the like degrees, whereof the examples eueryevery where are pregnant, and in guiding the grounds and maximes of things, that newly ſtart vp, by the rule of the Common Law.

Vſes at the Common Law were (a)(a)23. H 8. Fitz.nothing, yet in time gaining greater regard p. 21to be imputed among inheritances, are demeaned as other inheritances at the Common Law. So as a poſſeſſio fratris ſhall bee of them, and of lands in Borough Engliſh, the vſe ſhal diſcend to the puiſne. And now alſo theſe vſes beeing turned into eſtates, ſhall be demeaned in all reſpects as eſtates in poſſeſſion.

So when (b)(b)C…. 4. 2… ▪Cuſtome createth inheritance in Copihold lands, and maketh the lands diſcendable, then ſhall the Law direct the diſcents according to the maximes and rules of the Common Law, to hauehave a poſſeſſio fratris, and ſuch like: but not in collaterall things, as Tenancie by curteſie Dower, diſcent to toll an entrie, &c.

From the greater and the leſſe.

22. The greater doth containe the leſſe.

By a pardon of murder, man ſlaughter is pardoned.

An attaint ſuppoſing a verdict to hauehave paſſed before two Iuſtices, wheras it paſſed before foure, is good enough.

A recouery pleaded of three acres, where it was of ſixe, is good enough.

A Condition that I ſhall not infeoffe I. S. is broken, if I. infeoffe him and I. D.

A Copiholder of a mannor, where the cuſtom giueth libertie to demiſe in fee, may demiſe it for any leſſe eſtate, without other preſcription

Where the cuſtome is, that a man ſhall p. 22not deuiſe his lands for any higher eſtate 18 E. 38.than for terme of life, yet if a deuiſe bee in fee, and the deuiſee claime but for life, the deuiſe is good.

By the ſtatute 32. Henric. 8. that giueth 3 & 4 P. & M. Dy. 150. b.power to deuiſe two parts of ones lands, a deuiſe of the whole had bin good for two parts, though the Statute 34. & 35. H. 8. of explanations had not beene made.

23. A matter of higher nature determineth a matter of lower nature.

A man hath liberties by preſcription, & 21 H. 7. 5.after taketh a grant of thoſe liberties by Letters Patents from the King, this determineth the preſcription, for a matter in writing determineth a matter in fait.

If an offence, which is murder at the 33. H. 8. Dy. 50.Common-law bee made high Treaſon, no appeale ſhall lie of it, becauſe the offence of murder is drowned, and it is puniſhable as high treaſon only, whereof no appeale lyeth.

24. The more worthie thing draweth to it things of leſſe worthineſſe.

An adulterer takes away another ma… 11. H. 4. 31.wife, and puts her in new clothes, the huſband may take the wife with her clothes.

A boxe inſealed with charters, it ſhall 10. El. 323. b.goe to the heyre with the Charters, & not to the Executors.

p. 23A baſe Myne where there is Ore, ſhall be the Kings for the worthineſſe of the Ore.

The bodie of a man is more worthie than 3. El. 238.land, therefore land ſhall follow the nature of the perſon:

As a villein ſhall make free land to bee villein land, but villein land ſhall not make a free-man to be a villeine.

So the Kings land which he hath in his naturall capacitie, ſhall be demeaned according to the priuiledge and prerogatiues of his bodie royall.

And therefore

25. Things acceſtarie are of the nature of the principall.

A ſeruant procureth another to kill his 40 Aſſ. pl. 25.maſter: This is no pettie Treaſon, in the ſeruant, becauſe it is but felony in the other which is the principall.7. H. 6. 19. b.

A Parſon grants an annuitie with a Nomine poene, the ſucceſſor ſhall be charged with the Nomine poene due in his predeceſſors life, and not his executors.

The profits of the office of a Filizer, &c. 26, H. 8. Dy. 7. b.cannot be put in execution vponupon a recogniſance, Statute, &c. becauſe the office it ſelfe, being an office of truſt, cannot.

Tith is not payable of Okes vſually topped 26 El Moline.and lopped (though it be euerie ſeuen or eight yeares) for the branches are of the nature of the principall (that is to ſay) the p. 24Oke it ſelfe) for which no Tithe is to bee paid.

26. A mans owne words are voide, when the law ſpeaketh as much.

Lands giuen to two, & vni eorum diutius viuenti, they make partition, and one dyeth; 30. aſſ. pl. 8.yet the leſſor ſhall hauehave again the moitie of him that dieth, for vni eorum diutius viuenti are but idle words, becauſe (without them) the Iointenant, by courſe of Law is to hauehave all, if he doe ſuruiue.

From the rule of methode.

In things of ffor malitie

27. The generals muſt go before, and the ſpecials follow after.

In a Writ the (c)(c)The rule of the Regiſter.generall ſhall be put in demand, and in plaint before the ſpecial: as land before pree, paſture, wood, iuncarie, mariſh, &c. wood before Alders, will owes, &c.

28. The more worthie is to be ſet before the leſſe worthie.

The entier thing ſhall be demanded before Ibid.the moitie part or parts.

The thing of greater dignitie before that Ibid.which is of leſſe: as a meaſe before land, a p. 25…aſtle before a meſſuage or mannor.

In a repleuin if it be of two Cattels, one ibid.quicke and the other dead, the liuing thing ſhall be firſt demanded.

Where one hath the preſentment to a Church two turnes, and another the third turne: he that hath the third turne, bringing a Quare impedit, ſhall not begin with his own turne firſt, but with the other two turnes.

Next are the precepts of Naturall Phyloſophie.

29. Law reſpecteth the bonds of Nature.

Affection for the prouiſion for the heires males that one ſhall ingender, brotherly louelove, &c. are good conſiderations to raiſe a vſe: but long acquaintance and familiaritie are not.

The ſonne may maintaine his father, & one brother another.

Brothers or coſins ſhall not wage battell in a writ of right.

A Statute that maketh it felonie to receiue or giuegive meate and drinke to one that committeth ſuch & ſuch an offence knowing it, ſtretcheth not to a woman that receiueth or giueth meat & drink to her huſband in ſuch a caſe.

30 The Law iudgeth and eſteemeth of al …cording to their nature: both perſons & p. 26their ages, things, actions, and the time of the doing them.

In perſons,

It looketh to the excellencie of ſome, & giueth them ſingular priuiledges and preheminences aboue the reſt. As to the King, the Queen his wife, Noblemen, and Peeres of the Realme. Alſo vntounto them of the Church.

It tendreth the weakeneſſe and debilities of others; As of

Men out of the Realm, or in priſon, Feme Couert (and therefore fauoureth them for their dowers) infants, men vnlettered. Ideots out of their eight minde, or without all vnderſtanding, as thoſe that are borne dumbe deafe, and blinde, or hauing other imperfections.

If a diſſeiſor die ſeiſed, the diſſeiſee beeing all the while within age, Couert baron in priſon or out of the Realme, it ſhall be no diſcent to toll the entrie of the diſſeiſie.

VponUpon a leaſe made to a husband & wife, ſhee ſhall not bee charged after the Huſlands death, for waſt done by him in his life time.

A woman ſhall be indowed of the beſt poſſeſſion of her husband: as if the huſband held of I. S. by iij. d. who held out p. 27of another by xx. d. and I. S. releaſe to the husband (ſo as now the husband holds by xx d) the wife being indowed of this land, ſhall hold onelyonly by the third part of iij. d. and not of xx. d.

An Infant, Ideot, and a man of non ſane memorie, may enter, or hauehave an action to auoid their feoffements.

If a dumbe perſon bring an action, hee ſhal plead by procheine amy.

31. Strangers not parties nor priuies.

Leſſee for yeares grants a rent charge, & 1, El. 198.ſurrenders, yet the rent ſhal be paid during the yeares.

So if he in the reuerſion grant a Rent charge during the terme, and then the leſſee ſurrendreth vntounto him, he ſhall pay the rent during the terme: for a ſtranger (that is, the grauntee of the rent) for his benefit ſhall ſay, that the terme continueth, & that it is determined.

And therefore

Things done in anothers right.

A perſon out-lawed or excommunicated may hauehave an action as executor of another man.

And a villeine in ſuch caſe againſt his Lord: for they recouer not their owne but to anothers vſe.

p. 2832. It diſfauoureth other ſome.

Aliens neither borne within the Real… nor free deniſens, that they ſhal not pa… ticipate of the priuiledges of natur… borne ſubiects.

Eſpecially aliens that are enemies.

Alien enemies ſhal not hauehave ſo much: a perſonall Action, which other Alie… may.

An obligation made to an alien ene… ſhall goe vntounto the King.

Any bodie may ſeiſe the goods of an a… en enemie, to his owne vſe.

Touching their ages.

33 It holdeth

xxj their full age to make good any … they doe.

xiiij their age of diſcretion.

And therefore

That a competent age to bind a man … matter of marriage.

xij to bind the woman.

ix to deſerue her dower.

p. 29In things

34. It reſpecteth euerie one according to worthineſſe. As

Life and libertie moſt; the perſon aboue his poſſeſſions; freehold and inheritance more than it doth chattels; reall chattels more than perſonall.

None ſhall hauehave iudgement to recouer in an action of waſt, where the waſt commeth but to 12. d or ſuch a pettie ſumme, for De minimis non curat lex.

A leaſe for life, the remainder for yeres, the remainder ouer in fee, an action of waſt lieth for him in the remainder, againſt leſſee for life: for the meane eſtate for yeares is not regarded. Otherwiſe it were if the immediate eſtate of the remainder were an eſtate for life.

A villeine infranchiſed for an hower, is for euer. So infranchiſed vponupon condition, the condition is voide, and the infranchiſement abſolutely good.

If a man for feare and ſimplicitie will confeſſe himſelfe guiltie of a felonie, yet the Iudge muſt not record that confeſſion, but ſuffer him to plead not guiltie: & that is in fauorem vita.

35. A matter in the right more than a matter in poſſeſſion.

p. 30In auowrie or annuitie, aide ſhal not b… of a perſon, if the plaintife be ſeiſed by t… 3 E. 3. 88.hands of the ſame perſon, becauſe it is … the perſons owne wrong to denie it.

Otherwiſe in a Ceſſauit, for that is in t… right for the land.

In an action of Treſpaſſe againſt tena… for life, who pleads villenage in the plai… tife, 14. H. 7. 5. K…ble.and the piaintife is found franke at no villeine, yet he in the reuerſion is not ſtopped by this verdict: for the thing it ſel… whereupon the reuerſion dependeth is … in demand, and the plaintife ſhall recou… onelyonly dammages: neither can he in the … uerſion hauehave a writ of errour or attaint v… on it.

Otherwiſe it is in a Natiuo habendo: … there the right of villenage commeth … queſtion, and he in the reuerſion may ha… an error or attaint.

Yet it fauoureth

36. Poſſeſſion where the right is equall…

A man purchaſeth at one time ſeue… lands holden of ſeuerall Lords by Knig… ſeruice, and dieth: the Lord that firſt … happe the Wardſhip of his heire, ſh… hauehave it.

Husband and wife purchaſe ſocage la… 3. El. 296.vntounto them and the heires of their body, a… hauing iſſue within fourteene yeres of a… p. 31…w if the Grand-mother of the part of the mother of the iſſue doe firſt ſeiſe the bodie, ſhee ſhall hauehave the Wardſhip, and not the Grand-father of the part of the father of the iſſue.

37. Matters of profit, or intereſt largely: of pleaſure, eaſe, truſt, authority, or limitation ſtrict.

A licence to hunt in my Parke, or walke 13. H. 7. 13.in my Orchard, extends but to himſelfe, not to his ſeruants, or other in his company, for it is but a thing of pleaſure, otherwiſe it is of a licence to hunt, kill, and carrie away the Deere, for that is a matter of profit.

Way granted to Church ouer my land, 1… H. 7. 25. b.extends not to any other but himſelfe, for it is but an eaſement.

A reuerſion granted to two ioyntly, and 11 H. 7. 12 b.the Tenant atturnes to one, it is a void atturnement.

If the Sheriffe behead one that ſhould 35. H 6. 58. b.be hanged, it is felony.

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

A leaſe is made to A. and B. for their liues, A. dieth, B. ſhall hauehave all during his life, for it is an intereſt.

But if a Leaſe be made to I. S. during the life of A. and B. there (if one of them dye) the eſtate is vtterly determined, for that is a limitation.

p. 3238. Therfore theſe may be counterma… ded, ſo cannot thoſe.

A licence to come to my houſe to ſpeak… with me: (a)(a)1. E. 5. 2.Goods bailed ouer, to deliue… 9. E. 4. 4. b.to I. S. or (b)(b)28. H. 8. Dy. 22.to beſtow in almes. (c)(c)Park. d.A lette… of Attourney to deliuer ſeiſin: all theſ… may bee countermanded before they b… done.

But if I preſent I. S. to a Church, I cannot …4. E. 4. ….after vary and preſent a new, for a kin… of intereſt paſſeth out of mee.

So if I deliuer an Obligation as a ſcrowl… into a Strangers hand, to bee deliuered t… Park. 19. ….the obligee, vponupon condition performed, f… the Obligee is as it were partie or priuy … the deliuerie.

39. Matters of ſubſtance more than ma… ter of circumſtance.

Pleas in barre, and replications (thoug… 21. H. 7. 24. ….the Plantiffe be afterwards non ſuit) make an eſtopple, for they are expreſſe allegations & material. As in debt vponupon an obligation if the Defendant plead in barre an acquittance made at D. or if the defendan… plead an acquittance, and the plantiffe reply, that it was made by dures of impriſonment at D. now in another action, neithe… the defendant ſhall plead that the acquittance, nor the plantiffe that the dures was, at an other place: But a matter in the wri… p. 33…count, makes no eſtopple, for they are …t ſuppoſels:

As in a formidone and claime by diſcent …m I. S. or a mortdanceſter, as ſonne and …e to I. S.; yet in another formidone hee …y claime from I. D. and ſhall not bee eſtopped.

No more ſhall recitalls make any eſtoppell, for they are not materiall. As where 33. H. 6. 10. b.A. reciting that hee is ſeiſed in fee of the mannor of D. graunteth a rent out of it to B. this ſhall not eſtoppe A to ſay that hee had nothing in the mannor.

39. Things executed and done, more than …ngs executorie, and to doe.

… feme diſſeiſers taketh a husband, the diſſe…ſy releaſeth to the husband, afterward 32. H. 8 Br. Darretnement 18.a diuorce is had for precontract: yet the releaſe remaineth good, becauſe it was executed.

A feoffment made to the vſe of ones wil, 20. H. 7. 11.if his will be declared before or at the time of his feoffement; it cannot be altered, becauſe it is executed.

Otherwiſe it is of his will declared after.

Po…bilitie of things.

And therefore

40. Nothing to be voide, that by poſſibilitie p. 32duplicate page p. 33duplicate page p. 34may bee good.

Lands giuen to a married man and another 15. H. 7. 10.mans wife, and the heires of their two bodies; is a good eſtate in taile (and that preſently executed as ſome thinke) for the poſſibilitie that they may entermarie.

A meſualtie is giuen in taile, reſeruing a rent, this is good: for the tenancie may eſcheate 1. H. 4. 1.to the donee, & then the donor ſhal diſtraine for all his arrerages.

A man han hath iſſue a daughter, and leaueth his wife priuiment inſeint: the wife 41. E. 3. 11. b.may detaine the charters of her husbands lands from the daughter, for the poſſibilitie that it may bee a ſonne that ſhee goeth withall.

42. A mutuall recompence.

An aſſumption or promiſe doth then only binde, when it is made vponupon good conſideration of another thing.

Ceſti qui vſe may grant his vſe without conſideration, as he may his horſe or other chattell: but he cannot raiſe a vſe without good conſideration. And this conſideration muſt be ſome cauſe or occaſion meritorious, amounting to a mutual recompence in deed or in law.

A writ of annuitie ſhall be maintained by a parſon againſt a Vicar, vponupon an Ordinance of the ordinarie, if there be Quid pro quo.

p. 35In Actions.

43. It yeeldeth fauour, when for the doing of it there is

Neceſſiitie.

Funerall expences ſhall firſt of all bee Br. executor 172.diſcharged by executors.

A man may milke a Cow that hee hath by returne irreplegiable. And that is for the neceſſitie.

A man in his owne defence for the neceſſitie 4. E. 6, 19.of the ſauing of his life: & a champion in a writ of right for the neceſſitie of triall, may kill another.

Whether referre

44. Conformitie, which is a kind of neceſſitie.

Rent muſt be demanded, though no man be vponupon the land to pay it.Br. for. Mar. 12.Mark 12

Where an infant in ward marrieth himſelfe, yet to hauehave the forfeiture of the marriage, the Lord muſt tender him one.40. E. 3. 30. b.

He that pleadeth in the auoidance of a fine, That the parties to the fine had nothing; muſt ſhew who had.

But it is not trauerſable, but only ſhewed for Conformitie.

45. Of Colour.

p. 36If the heire indow the anceſtors wife, 41. E. 3. 28.though ſhe were not dowable, yet ſhe ſhall hold in dower.

Where a Court hath no colour to hold plea (as a Court Baron of land not holden 22. Aſſ. pl. 64.of the mannor) all is void.

But where there is colour (as if a Court Baron hold plea of land within the Mannor) though it be by plaint, where it ſhould be by Writ originall; yet the iudgement rendred, is only voydable by writ of Errour.

A woman grants a reuerſion, and marries with the grantee, if the tenant pay him the rent generally, it is no Atturnement: for he hath colour to pay it him, as ſeiſed in the right of his wife.

46. It priſeth Acts in law higher than thoſe that are done by the partie.

VponUpon the grant of a rent, the Tenaunt cannot attorne nor put the grantee in poſſeſſion by an Oxe or ſuch like, becauſe it is 49. E. 3. 15.another thing: but vponupon the recouerie of rent, the Sherife may.

Parceners may compell partition, ſo cannot Ioyne-tenants, nor tenants in Littlet.common.

For equalitie of partition among Coparceners, a rent granted ſhall be a fee ſimple, 2. & 3. P. & M. 134. …. 29. Aſſ. pl. 23.without words (heires) and iſſuing out of the lands, without ſo expreſſing it in the grant.

Alſo things that otherwiſe cannot, may p. 37a. 2. H. 7. 5.paſſe without deed, as a rent, reuerſion, (b) 21. E. 3. 7.ſeigniorie, way auowſon, compoſition, to (c) 11. H. 4. 3.preſent by turne.(d) 28. H. s Dyer 29. Fitz. N. B. 34. ….

Parceners may hauehave a Quare impedit one againſt another (that is, the eldeſt daughter may hauehave it againſt the reſt, if ſhe be diſturbed of her preſentment.)

So cannot Ioin-tenants, nor Tenants in common.

47. It reputeth that men will alwaies deale for their owne beſt aduantage.

And therefore

46. Beleeueth againſt the partie, whatſoeuer is to his owne preiudice.

For the time of doing things:

It countenanceth more

48. Things done in time of peace, than in time of warre.

A diſſeiſin and diſcent in time of warre, ſhall not toll the entrie of the diſſeiſee.Lit. 97.

Vſurpation in time of warre gaineth no 7. E. 3 darrein preſentment 2.poſſeſſion; but the other may hauehave an aſſiſe of darreine preſentment (that notwithſtanding) if his anceſtor preſented laſt before.Fitz. N. B. 31. …

p. 3849. Things done in the day, more than in the night.

Rent payable at a day, the partie hath all the day till night to pay it: but if it bee a 1. Mar. 172. b.great ſumme, as 500. or 1000. l. hee muſt be readie as long before the Sun ſet, as the monie may be told: for the other is not bound to tell it in the night.

A man muſt not diſtreine in the night time for rent behind.

Where things are fit to be ſtraitned to a time, it eſteemeth (according to the nature of the things)

50. Sometimes a whole day ſufficient.

Where goods are loſt in warre, and recouered from the enemie by another of the kings ſubiects, the owner ſhall hauehave them againe, if he make freſh ſuite before the Sunne ſet, elſe not.

51. Sometimes a whole yeare.

The Lord loſeth his villeine for euer, if a villeine flie into ancient demeſne, & there continue a yeare and a day, without claime of the Lord.

Recouerie in a Writ of right, and fine… executed, bind all perſons though they hauehave right, that lay not to their claime within … yeare.

p. 39The King cannot grant a protection to indure longer than a yeare.

52. The third offence it eſtéemeth more heynous.

The third Writ not returned by the ſherife, is a contempt, whereupon an attachment lieth.

Politicall precepts follow.

The Law fauoureth

53. Things for the Common: weale.

A man may iuſtifie the doing of a wrong 29. H. 8. Dy. 36. b.in things that ſound for the Commonweale.

As in time of warre, to make Bulwarkes in another mans ſoyle without licence. To raſe ones houſe on fire, in ſafegard of the neighbors houſes.

A Sherife may breake open the dores of ones houſe to take a felon. But not to ſerue a Capias in an action of Debt or Treſpaſſe: for that is a particular caſe, and not for the Common-weale.

Fiſhermen may iuſtifie their comming 8. E. 4. 18. b.vponupon the land adioyning to the ſea, to drie their nets: for fiſhing is for the Commonwealth, and ſuſtenance of all the Realme.

A mill-ſtone that is lifted vp to be picked and beaten, cannot be diſtrained, for it p. 4114. H. 8. 25.remains parcel of the mill, which is a thing for the Common-wealth.

Things brought into an Inne or Faire, or 22. E. 4. 49.Market; or cloth lying in a Tailors ſhop, or a horſe that is a ſhooing, ſhal not be diſtreined.

Publique quiet.

And therefore

54. Common error goeth for a Law.

An acquittance made by a Maior in his …. R. 3. 7.owne name onelyonly (where the towne is incorporate by the name of Maior, Sherife, & Burgeſſes) ſhall bee allowed for good, if there bee an hundred precedents and more of like acquittances. And that is for common quietneſſe.

Whether a common recouerie be a barre Manxels caſe f. 2.vntounto an eſtate taile or no, is not to be diſputed, becauſe a great part of the inheritance of the Realme doth depend vponupon it.

Of this kind are thoſe Deconomickes.

The huſband and the wife are one perſon.

And therefore

The wife is of the ſame condition with her huſband.

p. 40Franck if he be free, Deniſen if he be an Fitz. N. B 78. …. Abridgement of aſſiſes ꝑ Br. deniſē 2.Engliſh man, though ſhe were a neif before or an alien borne.

55. They cannot ſue one another, or make any grant one vntounto the other, or ſuch like.

If the (a)(a)21. H. 7. 29. b.woman marrie with her obligor, the debt is extinct, and ſhe ſhall neuer hauehave action againſt the Co-obligor (if another were bound with him) becauſe the ſuit againſt her husband, by enter-mariage was ſuſpended. And therefore being a perſonal action, and ſuſpended againſt one, it is diſcharged againſt both.

So, if a feme ſole baile goods to one, and marrie with the baile.

Likewiſe the husband cannot infeoffe Park. 40.his wife, but vponupon a feoffement made vntounto her by a ſtranger, he may deliuer ſeiſin vntounto her by Letter of Attornie; for thereby himſelfe giueth nothing.

56. VponUpon a ioynt purchaſe during the couerture, either of them taketh the whole.

If the husband alien land &c. ſo giuen, 39. H. 6. 45. 21. R. 2. iudg. 63.ſhe ſhall recouer the whole, in a Cui in vita after his death, and the warrantie of one of them or his anceſtors, is a bar of the whole againſt them both.

And if a feoffement be made to the huſband Littlet. 65.and wife, and a third perſon; the third p. 42perſon taketh one moiety, and the husband and wife the other moiety.

The huſband is the womans head:

And therefore

58. All ſhe hath is her huſbands.

The perſonall things ſhe hath are meerly his; but reall things, whether land, rents, &c. or chattels reall, and things in action he hath onelyonly in her right: yet ſo, as of reall chattels & things in action, he may diſpoſe at his pleaſure, and ſhall hauehave the reall chattels if he ouer-liue. Of things in action, her ſelfe may diſpoſe by will.

If Tenant in tail enfeoffe a woman and Littlet. 148.die, and his iſſue within age take her to wife, he ſhall be remitted, and the woman now hath nothing: for hee cannot ſue any formedon in this caſe, vnleſſe he will ſue againſt himſelfe, becauſe by the enter-mariage himſelfe is ſeiſed in her right.

If one that hath a leaſe for yeares, grant …4. Eliz. Ploy. 418.his terme to a feme Couert, and another, or if a feme ſole and another be Ioynt-tenants for yeeres, and ſhee take a husband, yet the eſtate of the feme and ioynture doth continue, ſo as the ſuruiuor of the wife; or of the other ſhall hauehave the whole: and if a ſtranger ouſt them, her husband and ſhee muſt ioyne in an eiectione firme, and the feme ſhall hauehave iudgement as well as the p. 43husband: And (a)(a)1. Eliz. Ploy. 191.in pleading he may ſay, That they are poſſeſſed in her right. Neither can the husband, where the wife hath a terme for yeeres, either deuiſe it to another 14. Eliz. Ploy. 419.by his will (for ſhe hath an eſtate in it before and at the time of his death, which preuenteth the deuiſee) or grant a rent 14. Eliz. Ploy. Ibid.charge out of it, for ſhe ſuruiuing is remitted to the terme, and therefore ſhall auoid the charge, but by an expreſſe act he might in his life time hauehave giuen it away. But if a woman hauing chattels perſonall take a husband, the law deueſteth the propertie out of her, and veſteth it in her husband onelyonly.

And if goods bee giuen to a feme Couert, and another, the ioynter is ſtraight way ſeuered, and the husband and the other are Tenants in common; and the excutors …1. H. 7. 29.of the husband ſhall hauehave all the goods that were his wiues.

But in an action of debt vponupon arrerages 16. E. 4 8.of an accompt (where one was receiuer to the feme whileſt ſhe was ſole) they both muſt ioyne, and that although the auditors were aſſigned during the couerture for the verie cauſe of action, that is, the receipt (whereunto the aſſignement of auditors is but a thing purſuant) was in her right; yet the husbands releaſe of an obligation 7. H. 6. 1.made to the feme, or where goods were taken from her whileſt ſhe was ſole, ſhall be good againſt the wife if he die. But if he die without making ſuch a releaſe, the wife p. 44ſhall hauehave an action vponupon the obligation, and not the executors of the husband: Likewiſe the wife ſuruiuing, or her executors 39. H. 6. 27.if ſhee die, ſhall hauehave thoſe things in action, and not the husband; or ſhe may make her husband her executor, and then hee ſhall recouer them to her vſe. But a …. Eliz. Ploy. 191leaſe for yeares, which the wife, ſhall bee the husbands, if ſhee die before him: for that is a thing in poſſeſſion and not in action.

59. Her will is become his will, and ſubiect vntounto it.

VponUpon a feoffement to a feme Couert, ſhee taketh nothing vnleſſe her husband will agree; and where one is bound to enfeoffe the husband and wife, the husbands refuſall is the refuſall of them both; but where the husband and wife are ioynt purchaſors, the husband may make a feoffement and liuery vponupon the land, which ſhall worke a diſcontinuance, though the wife be in preſence vponupon the land and will not agree. If they bargaine and ſell the wiues land by Indenture, and the vendee grant vntounto them for the ſame a yeerely rent, her acceptance of this rent, after her husbands death, doth not barre her of the land, although the acceptance be an agreement to the bargaine, but the bargaine being but a contract, is the bargaine of the husband onelyonly, and not of the wife: if ſhee make p. 45a releaſe, obligation, or ſuch like, it is meerly voide. If both her husband and ſhe baile goods to one, they ſhall not ioyne in an action of detinue, for it is onelyonly his bailement, and void as vntounto her. In an accompt vponupon a receit, by the hand of the plantiffes wife, the defendant may wage his law; hereupon it is that the wife can neuer anſwer in any action without her husband. And if in an action of treſpaſſe againſt them, the wife come in by Cepi corpus, and the husband doth not appeare, ſhe muſt be let at large without any mainpriſe till her husband doe appeare: but hee appearing, may anſwer without her, therefore a protection caſt by the husband ſerueth for the wife alſo, becauſe ſhe cannot anſwer without him.

Laſt come the Morall rules.

60. The Law fauoureth right.

When two are in a houſe, or other tenements, Littlet. 158.and one lay claime by one title, the other by an other title, the Law adiudgeth him in poſſeſſion that hath the right to hauehave the tenements.

And therefore

61. Suffereth things againſt the principles of Law, rather than a man to be without his remedy.

p. 46A man that is outlawed may bring an 4. H. 7. 40.action to reuerſe it, and outlawry there is no plea.

The Tenant ſhall hauehave a repleuin againſt F. N. B. 69. h.the Lord that did wrongfully diſtreine, though the Beaſts bee come backe to himſelfe, becauſe hee can hauehave no action of treſpaſſe againſt him.

A man (after that iudgement is paſſed againſt 11. H. 7. 10.him) ſhall plead againſt the King a Charter of pardon, or any ſuch thing done meane betwixt the verdict and the iudgment, becauſe againſt the King hee can hauehave no Audita querela. Otherwiſe it is, againſt a common perſon.

Hateth wrong.

So that

62. No man ſhall take a benefit of his owne wrong.

A man is bound to appeare before the 31. H. 6. bar. 60.Iuſtices at a certaine day, at which day he is in priſon at the parties ſuit, ſo as he cannot come, the bond is ſaued. Otherwiſe it is if he were in priſon for felony, or any other miſdemeanor, for that is his owne fault.

An Infants appeale ſhall not ſtay till his 27. H. 8. 11. & Br. couert. 2.full age, for the defendant ſhall not hauehave aduantage of his owne wrong.

One in execution ſcapes, and the Gailor p. 4713. H. 7. 1.gets him againe, the party if hee will, may hauehave him to remaine in execution for him ſtill, for the eſcape is his owne wrong.

And therefore,

63. Of it ſelfe preiudiceth no man.

If a feoffement be made to two ioyntly, one of them cannot deraigne the warranty 48. E. 3. 17.without the other. Yet if a Villeine and another purchaſe ioyntly, and the Lord of the Villeine enter into a moitie, he may deraigne the warrantie alone, for his moitie: for there the ſeuerance groweth by act in law.

He that miſdemeaneth authoritie, that 12. E. 48.law giueth him (as if one come into a Tauerne, and will not goe out in ſeaſonable time; or diſtreine for rent, and kill the diſtreſſe) Shall be a wrong doer ab initio.

Otherwiſe it is, if hee miſdemeane an authoritie that another giueth him. As if I lend my horſe to one to ride to Yorke, & he ride further, yet the riding to Yorke ſhall not be vnlawfull. Nor a generall action of treſpaſſe lieth not againſt him vponupon an accord vponupon the caſe.

Eſpecially for things that cannot bee imputed to his owne follie.

The Lord Chancellors ſeruant impleaded at the cōmon law, claimeth priuiledge 35. H. 6. 3.of the Chancerie: and before it be diſcuſſed p. 48whether he ſhall hauehave it or no, the Lord Chancellor dieth; yet his priuiledge is allowable ſtill, for the act of the Court to aduiſe of it, ſhall not preiudice him.

Of rent a man ſhall hauehave an eiectment 33. H. 8. Br.of ward before ſeiſin: for the law counteth him in ſeiſin, in as much as he cannot hauehave it before the day. Otherwiſe it is of land.

And therefore

64. Driueth not a man to ſhew that which by intendement he knoweth not.

A man may plead that he was choſen 2. Mar. 128.Knight for the Shire by the greateſt number, without ſhewing the number: for the election may be by voices, or hands, or in other ſort; hard to diſcerne the certaine number, and yet eaſie to ſee who had the greater number.10. E. 4. 15.

One bound in an obligation to ſerue I. S. for vij. yeares in omnibus mandatis eius licitis, ſhall plead that he did ſerue him lawfully, without ſhewing what ſeruice or in what commandment: for no ſeruant can remember all.4 E. 6. 46.

A man may auer a thing to be don by couine, without ſhewing how the couin was: for couine is a ſecret thing contriued betweene two or three, to the preiudice of another.

p. 49Truth.

And therefore

65. It disfauoureth

Fraud and couine.

If a woman that hath good title of Dower, cauſe I. S. to diſſeiſe the tenant of the 18. H. 8. 5.l…d, and recouereth her dower againſt I. S. yet this is no good eſtate of dower in her, for ſhe is priuie to an vnlawfull act, which ſhould be the meanes of her eſtate.

66. Vncertaine, whereby truth is inueigled.

A man grants all his trees and wood vponupon 1. Mar. Dy. 91.Bacre, that may reaſonably be ſpared; this is a void grant, vnleſſe it be referred to … …hird perſons iudgement, what may bee …red.

If two ſeuerall Writs of one ſelfe ſame Manxels caſe fol. 10. b.thing againſt one ſelfe ſame man, be returned at one ſelfe ſame time: both ſhal abate.

67. Variance.

If the Writ varie from the Obligation, 11. E. 4. 2.…other ſpecialty in name, ſurname, or ſuch like, in an action of debt or annuitie brought vponupon it; or the Court varie from the Writ. As in an action of debt of xx. l. 8. E. 4. 2. b.…d declare but a debt of x. l. both ſhall …te.

p. 50An (a)(a)4. aſſ. pl. 2.eſſoyne or (b)(b)32. H. 6. 3.protection varying from the originall Writ in the quantitie of the Tenancie, or the name of the partie, (c) 7. H. 6. 22.ſhall be quaſhed: and the Chancellors ſeruant bringing a Writ of priuiledge varying from the originall Writ (as if the original be a Writ of Treſpaſſe, and the priuiledge in placito debiti, or the originall an Action of Debt of 44. l. and the Writ of priuiledge in placito debiti of 42. l.) it ſhall bee diſallowed.

Departure alſo when one fortifyeth not the matter of his plea that went before, but cōmeth in with a new matter, is a kinde of variance, & maketh the plea naught. As if the reioinder be a matter puiſne vnderneath the matter of his barre, and not aboue, and going before it: As in an action of Treſpaſſe, the defendant pleadeth a diſcent vntounto him of the land, the plaintife ſaith, that after the diſcent the defendant infeoffed him: Now if the defendant reioyne, that the feoffement was vponupon condition, and he entred for the condition broken; this is a departure: for the matter of the barre (that is, the diſcent) is before the matter of the reioynder, that is to ſay, the entrie for the condition broken, whereby the feofme… is auoyded. So if in an aſſiſe the defenda… pleadeth the feoffment of I. S. & the plaintife make title to himſelfe by diſcent, an… that he was diſſeiſed by I. S. who infeoffe… the defendant: or that he infeoffed I. S. vponupon condition, who brake the condition, & p. 51afterwards infeoffed the defendant &c. Now if the defendant ſay, that after the diſſeiſin (or condition broken) and after the feoffement of I. S. to the defendant, the plaintife did releaſe to the defendant, or confirme the ſtate of the defendant, this is a departure, for that is a matter that groweth after the feoffement pleaded in barre. But if he plead ſuch a releaſe or confirmation from the plaintife to I. S. that is no departure; for it is a matter before the feoffement, or in an action of Treſpas for goods, if the defendant in title himſelfe by the gift of I. S. and the plaintife ſaith that himſelfe was poſſeſſed till I. S. tooke them from him and gaue them to the defendant Now the defendant may ſay, that after the taking, the plaintife gaue them to I. S. who gaue them to the defendant: For although the defendant might hauehave pleaded theſe things at the beginning, yet, in aſmuch as it is purſuing, and fortifieth his barre, and no puiſne matter vnderneath the title of his barre, but eigne, and aboue the matter of …is barre, therefore it is no departure. So a plea in a barre which is intendible at the Common Law cannot be maintained by a …atter of cuſtome or by Statute law. As in … aſſiſe the Tenant pleadeth in barre a deuiſe vntounto himſelfe of the land, being deui…ble by the cuſtome: the plaintife ſaith, …hat the Deuiſor was within age at the …me of the deuiſee. Now if the Tenant ſay, That by the Cuſtome there, an p. 52infant of fifteene yeares of age may make a deuiſe; this is a departure. For the cuſtome pleaded in barre ſhall be intended of thoſe that may make a deuiſe by the Common law. So if in an action of Treſpaſſe the defendant plead in barre a leaſe for fiftie yeares from a houſe of Religion, & the plaintife auoyde it, by reaſon it was made within a yeare before the diſſolution, and ſo void by the Statute 31 H. 8. Now if the defendant will alleadge, That by the ſame Statute it is prouided, that all ſuch Leaſe… ſhall be good for xxj. yeares, and ſo maintaine the Leaſe to bee good for ſo many yeares, this is a departure. Or if one plead a Fine, and that being auoided becauſe the parties to the fine had nothing, will maintaine the Fine to be good by the Statute 1. R. 3. becauſe hee that leuied the Fine, was Ceſti qui vſe.

68. Contrarietie.

An Obligation is made Soluendum nu… quam. 21. E. 4 36.This Soluendum is void, and the thing preſently due.

A. is bound to B. Soluendum eidem A… 4. E. 4. 29.This is a good Obligation, and the Solundum void: for the plaintife may declare vponupon a Soluendum to himſelfe.

In a Treſpaſſe de domo fracta & inuris ei… dem …1. H. 7. 21. b.domus fractis. The defendant canno… pleade not guiltie to the breaking of th… houſe, & iuſtifie the breaking of the wal… p. 53for the houſe and walls are all one, and hee cannot of the ſame thing both iuſtifie and plead not guiltie: for by the iuſtification, he …cknowledgeth himſelfe guiltie. So one is contrarie to another.

A feoffment in fee is made of two acres, vntounto two men habendum one acre to one 2. & 3. P. & M. 153.man, and the other acre to the other man. This is a void habendum: for the premiſſes giuegive him an intereſt through both acres, & the habendum excludeth him from hauing any thing to doe in one.

A leaſe of a mannor excepting the ſeruices, the exception is void: for it is parcell of the thing let.

And therefore

69. It will not driue a man to iuſtifie that he goeth about to defeat.

He that bringeth an aſſiſe of the maſterſhip 10. H. 7. 9.of a Chappell againſt I. S. ſhall not need to name I. S. the maſter of the Chappell, becauſe the plaintife is to diſproue his intereſt.

Diligence

And therefore

70. It hateth

Follie, and Negligence.

After a recouerie in a writ of right, if a …anger that hath right, lay not to his 5. E. 3. 222. Her….claime within a yeare and a day, he is barred p. 54for euer. For vigilantibus & non dormientib▪ iura ſubueniunt.

A diſcent caſt during the couerture (where the wife is diſſeiſed) barreth her not of her Litt. 95.entrie after the husbands death. But if a feme ſole be diſſeiſed, and then taketh a husband, there a diſcent during the couerture taketh away her entrie: for it was her follie to take ſuch a husband that entered not in time.

Spéeding of mens Cauſes.

And therefore

71. It hateth

Delayes.

He that pleadeth a Record in delay, (a… to proue the plaintif excommunicate) muſt 3. H. 6. 15. b.hauehave it readie to ſhew. Otherwiſe it is, if he plead it in barre.

In dilatorie pleas both defendants muſt ioyne.12. H. 7. 3.

A plea in barre that is dilatorie, muſt be good to euerie common entent.8. H. 7. 9.

72. Vnneceſſarie circumſtances.

One that is in Court readie to ioyn wit… the defendant, may doe it without Proces▪ 2. H. 6. 1. b.As the vouchee the plaintifes leſſor beein… praied in aid of, when the def. in a repleui… auoweth vponupon him, or the meſne when the Lord paramount auoweth vponupon him. Bu… ioynder in aid cannot be by Attorny without Proceſſe.

p. 55One that is a debtor to the King of Re…ord 1. H. 6. 4. b.in the Exchequer, if he be ſeene in the Court, may be brought in to anſwer without Proceſſe.

73. Circuit of Action.

When a father infeoffeth his ſonne and Manxels caſe. fol. 7. b.heire with warrantie, and dieth. Now the ſon in a praecipe brought againſt him, may vouch the feoffor of his father: for the Law will not ſuffer to vouch himſelfe, & when he commeth in as vouchee, then to deraign the firſt Warrantie for the Circuit of voucher.

VponUpon the grant of a Ward with warrantie, the defendant in a Writ of Right of Ward, may rebutt the plaintif by that warrantie, and ſhall not be driuen to bring an Action of Couenant for auoyding circuit of action.

So in an action of waſt vponupon a Leaſe for yeares by deede. And in the ſame deed the leſſor granteth to the leſſee, that hee ſhall not be impeached of waſt; the leſſee may plead this in an action of waſt.

The Law conſtrueth things

With equitie and moderation.

And therefore

74. Reſtraineth a generall act, if there be any miſchiefe or inconuenience in it.

Tenant for life lets to another for life, p. 56Litt. 110▪without expreſſing whoſe liues, it ſhall bee taken for the leſſors owne life; for elſe it were a forfeiture of his eſtate.

A houſe that hath Copyholds and other lands vſually occupied with it, is let for yeares, with the lands appertaining; yet the Copyholds paſſe not without ſpeciall naming: for then it were a forfeiture of them.

A Corodie granted to one and his ſeruant to ſitte at his Meſſe, he cannot bring a ſeruant that hath ſome filthie or noiſome diſeaſe.

Eſtouers granted one of a Mannour, the grantee ſhall not cut downe fruit trees.

A Common graunted to one for all his beaſts, yet he ſhall not hauehave Common for Goates, nor Geeſe, nor other beaſts, not Commonable.

A feoffment of all his lands in the town of D with Common in omnibus terris ſuis, this Common ſhal be intended in D. only, and not elſewhere.

75 Moderateth the ſtrictneſſe of the Law it ſelfe.

By Abridging, diminiſhing, and taking away the ſeueritie of it, and mollifying the hardneſſe thereof. A moral vertue as Plowden calleth, and may appeare by Ariſtotle, who treating of it defineth it, A certaine correction of the Law, wherein it is any way Wanting, becauſe of the generalitie of it.

p. 57It is no treſpaſſe for a man to beate his Apprentice, which is reaſonable correction.

No more is it to carrie away a mans wife againſt his will, to a lawfull end. As to ſue a diuorce againſt her husband, or to hauehave the peace of him before a Iuſtice of peace.

A great part of the depth and learning of the Law (if you goe to the primatiue reaſon of it) ſtandeth vponupon this and that other kind of equitie that went before. Of both which Plowden in that caſe diſcourſeth at large, and well ſetteth forth the nature of them, ſo farre as concerneth the interpretations of Statutes. But they hauehave a further & more ſhining vſe in the expoſition of Common Law it ſelfe, as in the caſes before put.

To the beſt.

And therefore

76. Euerie act to be lawfull when it ſtandeth indifferent to be lawfull or not.

If the Leſſor come vponupon the ground, it ſhall be intended that he came to ſee if waſt were done,

If the diſſeiſee come, it ſhalbe taken that he meant to be remitted

In an action of Treſpaſſe, two iſſues are 11 H. 7. 5.ioyned triable in two counties, one in London, an other in Middleſexe only (without ſaying which of the iſſues it ſhould trie;) this ſhall be taken to trie the iſſue in Mid. onelyonly: for ſo the venire facias is lawfull, & p. 58not in both counties; which is againſt law. And therefore it is a diſcontinuance of the iſſue in London, & not a miſcontinuance.

CHAP. 4.

Of Law Conſtructions that are naturall.

THVS farre of Rules drawne from other ſciences. There follow thoſe that are proper to our ſelues: which we call Law-conſtructions. And are naturall or fained.

Of the firſt ſort wee hauehave two notable grounds.

Law conſtrueth things, Reaſonably.

And therefore

77. With a reaſonable intent.

A feoffement by deed of a Mannor, with auowſon appendant, and no liuerie made, the auowſon paſſeth not: yet they may paſſe without liuery, but the meaning was, the mannor and it ſhould paſſe together.

A bargaine and ſale of land, and a reuerſion by deede not inrolled, the reuerſion paſſeth not no more than the land, though the deed without inrolment may paſſe the p. 59reuerſion: but it was meant they ſhould paſſe together.

One reciting by his deed, that where by …1. H 7. 5.preſcription he hath vſed to finde a Chaplein, becauſe ſome controuerſie hath grown of it, graunteth by the ſame deed to doe it: this determineth not the preſcription, for the intent of the deed (reciting the preſcription) was to confirme it, and not to make a new grant.

78. According to the effect.

A deed deliuered by an infant, cannot be 1 H. 6 4.deliuered again at his full age: for it tooke ſome effect before, and was but voydable.

But a deede deliuered by a feme Couert, or a releaſe deliuered to one that hath nothing in the land, may bee deliuered againe (viz.) when ſhee commeth to be ſole, or the partie to hauehave ſomewhat in the Land: for the firſt deliuery was meerely void, & took no effect at all.

So that

79. Hee that cannot hauehave the effect of a thing, ſhall not hauehave the thing it ſelfe.

The King ſhall not be receiued vponupon default 4 E…z 241.of Tenāt for life, becauſe the demand cannot hauehave the effect of the receit. viz. to count againſt him: which none can doe againſt the King, but ſue to him by petition.

Two Abbots cannot bee Ioyntenants: p. 60Litt.for they cannot hauehave the effect of it, which is ſuruiuorſhip.

80. To the moſt validitie.

Tenant in taile makes a leaſe for life, this ſhall be intended the Leſſees life.Litt. 140. b.

An annuitie granted pro conſilio impendendo, or a feoffement ad erudiendum filium, or ad ſoluendum x. s. is a condition, without words conditionall, becauſe elſe the partie hath no remedie.

And therefore

81. When many ioyne in an act, it maketh it his act that may doe it.

A vſe limitted to begin when ones eldeſt 2. & 3. El. Dy. 191.ſonne is married by I. S. the ſonne (beeing in ward to the King) is married by the king and I. S. yet no vſe riſeth, for it is the ſole marriage of the King.

A patron of a Church ſuffereth an vſurpation by ſixe monethes, and then grants an annuitie to I. S. till he doe promote him to a benefice After, he & the vſurper ioin in a preſentment of I. S. yet the annuity is not determined.

The diſſeiſee and the heire of the diſſeiſor, Litt…let.in by diſcent make a feoffment by one deede, and Liuerie; this is the feoffement of the heire onelyonly, and confirmation of the diſſeiſee.

p. 6182. When two titles concurre, the beſt is preferrred.

One is diſſeiſed, and the diſſeiſor lets the Littl.land to the diſſeiſee for terme of yeares, or at will: now if he enter, the Law ſhall ſay, he is in of his ancient and beſt title.

83. Things to bee done by him that hath moſt ſkill to doe them.

An Obligation vponupon condition, that a 9. E. 4. ….Bell ſhall be brought by the Obligee, to the Obligors houſe (being a Braſier) and there weighed and put in fire: and then the Obligor to make a Tennor of it, tunable with other bells.

The Obligor muſt weigh it, & put it in fire (not being expreſſed who ſhall do it) for it belongs to his office, & therefore he hath moſt skill to doe it.

So vponupon condition that the Obligee ſhal bring to the Obligors ſhop (being a tailor) three yards of cloth which ſhall be ſhapen, and the Obligor to make the Obligee a gowne of it: the Obligor muſt ſhape it.

A marchant agreeth with the Kings collectors, 4. E. 6. 15.that his marchādiſe ſhal be weighed at the Kings beame, and the King ſhall hauehave his ſubſidie as it riſeth: the Collector muſt weighe it.

Iſſues ioined muſt be tried by them that hauehave moſt skill. (videlicet.) An iſſue vponupon p. 624. El. 230▪ b.the law, by the Iuſtices learned in the law.

Attendance vponupon the King (Scotland) in L…tl… 21.warre xl. dayes (as tenant by eſcuage muſt) by certificate of the kings Marſhall.

Diſſeiſin of an office in the Common-place, 11. E. 4 3. 6.or raſing of a Record there, by the Filizers and Attournies, attendant in that Court.

84. Void things good to ſome purpoſe.

Leſſee for twentie yeares takes a Leaſe 1. & 2. P. & M. 107.for x. yeares (to begin preſently) vponupon condition if ſuch a thing be not done, to bee void, though the ſecond leaſe bee void vponupon the condition broken, yet the ſurrender remaineth good.

A feoffement vponupon condition to be void, 10. H. 7. 22.as if it had neuer beene, yet the feoffee ſhall hauehave an action of treſpas (after the feoffors entry for the condition broken) for a treſpas done by the Feoffor before.

85. One thing to enure as another.

The King grants to a Towne eaſdem libertates 21. H. 7. 13.quas London habet, it ſhall be entended the like. The Leſſor enfeoffeth his Leſſee for life, by dedi & conceſſi, this ſhall enure as a confirmation.

One grants the third preſentment to an 15. H. 7. 7.aduouſon, and dieth: his heire ſhall preſent twice, and his wife ſhall hauehave the third for her dower, and ſo the grantee ſhall p. 63hauehave but the fourth.

The King pardoneth one the making of a Bridge; this is onelyonly good for the fine: 37. H. 6. 4.but yet hee muſt make the Bridge, becauſe the Kings ſubiects hauehave intereſt in it.

86. In one thing, all things purſuant to be included.

One makes a leaſe, excepting a cloſe, 14. H. 8. 1.wood, &c. now the Law giueth him a way to come to it.

Where the King is to hauehave mines, the 10. E. 317.Law giueth him power to dig in the Land.

VponUpon a grant of Trees, the Grantee may 2. R. 2. barr. 337.come vponupon the Land to cut them downe, & with his Cariage to carry them through the land. And the vendee of all ones fiſhes in his pond, may iuſtifie the comming vponupon the bankes to fiſh, but not the digging of a trench to let out the water to take the fiſh, for he may take them by nets, and other deuiſes. But if there were no other meanes to take them, hee might digge a trench.

87. Strongeſt againſt him that doth them.

Two Tenants in common grant a rent 2. & 3. P. & M. 140. b. & 161. b.of twenty ſhillings, the grantee ſhall hauehave forty ſhillings. But if they reſerue twenty ſhillings vponupon a leaſe, they ſhall hauehave onelyonly one twenty ſhillings.

p. 64One bound to pay I. S. twenty pound, 2. M. 104.cetra feſtum natalis domini, it is no plea to ſay he hath paid it, but he muſt ſhew when, elſe it ſhall bee taken hee paid it after the feaſt.

And therefore

88. A man ſhall not qualifie his owne act.

The obligee releaſeth his debt till Michaelmaſſe, 21 H. 7. 23. b.the debt is gone for euer.

A reuerſion of three acres of land is 18. E. 3. Ʋar. 53.granted, the tenant atturnes for one, it is a good atturnment for all.

A parſon makes a leaſe for xl. yeares, the 17. El. Dy. 339.patron and Ordinarie confirme it for xx. This is a good confirmation for the whole xl. yeares.

The conſtruction which otherwiſe law would make, is altered by the parties.

89. Speciall agreement.

Leſſee for yeares is excuſed for waſt, if the houſes bee blowne downe by ſudden 40. E. 3 5.ſtorme or tempeſt. But in that caſe if he couenant to keepe reparations, an action of Couenant lieth againſt him.

Two Ioyntenants exchange an acre of land with another, they ſhould hold the Park 55. f. & …6▪ g.land taken in exchange ioyntly. But if they exchange to hauehave that acre in common between them, they ſhall be Tenants in common.

p. 65…. Speciall words.

A leaſe reſeruing a rent, the heire of the 27. H. 8. 19.…ſſor, after his death, ſhall hauehave the rent: otherwiſe, if the leaſe be reſeruing to the leſſor.

A feoffement in fee to one and his heires 30. H. 8. Dy. 42. b.with warrantie to the feoffee. This warrantie goeth not to the heire.

91. Surpluſage of words.

The Ordinarie may refuſe him generally, 9. E. 4. 28. b. Lit.that demands his clergie without ſhewing cauſe. But if he ſhew cauſe which our law alloweth not (as becauſe hee hath not his …ſure or ornamentum Clericale &c.) he ſhall pay a fine, and yet be driuen to take the Felon.

In a valore maritagij, & count of a tender 9. El. Dy. 255. ….of mariage to the def. The tender is trauerſable, if it were not before.

An information vponupon a ſtatute made 6. E. 6. 84.ſuch a day, & the day miſtaken, is naught, though he needed not to hauehave recited the day.

In an action of Debt by I. S. Parſon of …. no ſuch towne as D. is a good plea: yet …e needed not to hauehave named himſelf parſon of D.

A writ of forging diuerſa facta & muni…enta and count but of one, the Writ ſhall …ate: yet he needed not to hauehave ſaid in his Writ, but onelyonly factum.

p. 66CHAP. 5.

Of Fictions in Law.

A fained conſtruction, which we ca… a fiction in law, is when in a ſimilitudinarie ſort, the law conſtrueth a thing otherwiſe than it is i… truth. And is of the perſon, thing▪ Action, and the circumſtances there of ti… and place.

Of the Perſon.

92. Things don by another, are as if they were done by ones ſelfe.

A promiſe to ones wife in conſideration of a thing to be performed by the husband: 27. H. 8 24.if the husband vponupon his comming home, agree and performe the conſideration; hee may plead this promiſe to be made to himſelfe.

If my ſeruant ſel my goods, and I agree, I ſhall hauehave an Action of Debt, ſuppoſing he bought of me.

A leaſe for yeares is made, and a letter o… Attornie to deliuer poſſeſſion to the leſſee: 25. El. Earle of Leic. c.if the Attorny deliuer poſſeſſion to the Attornie of the Leſſee: it is a good poſſeſſion and purſuing to his authoritie.

p. 67Of the thing wee hauehave theſe two rules.

93. A thing that commeth in lieu of another, to be as if it were the ſame.

One ſhall recouer in value againſt the heire (vponupon the anceſtors warrantie) lands 18. H. 3. r…c. va. 26.which the heire took in exchange for lands deſcended.

A mannor is giuen by fine, a Scire facias 48. E. 3. 11.lieth of a Tenancie that afterwards eſcheated.

If a mannor diſcend to an heire within 6. H. 4 1.age, and after a tenancie eſcheateth, he ſhal hauehave his age of it in a Precipe of the manor; it ſhall bee aſſets by diſcent, and hee may vouch of this Tenancie by reaſon of a warrantie made of the mannor; for the tenancie commeth in lieu of the ſeruices.

94. A thing to be all one with that wherevnto it doth amount.

The maxime of a baſtard eigne, is that 14. H. 4. 9.the mulier puiſne muſt make an entrie vponupon him, or elſe he gaineth the right: yet a continuall claime made by the mulier puiſne deſtroyeth his right: for it amounteth to an …ntrie.

A Leaſe for a thouſand dayes, is a Leaſe 14. H. 8. 13.for yeares.

A leaſe for yeares and a releaſe amounteth Brook.to a feoffement.

If a man licence one to occupie his land p. 685. H. 7. 1.for a yeare. This is a leaſe for a yeare.

And therefore

95. A thing that ſhould not be done, to bee as if it were not done.

One grants a rent charge, without ſaying 18 El. Dy, 362.pro ſe & heredibus, and dieth. The grantee brings a writ of Annuitie againſt the heire, and hath iudgment to recouer: yet he may diſtrein afterwards: for the heire was neuer chargeable. So that vponupon the matter, it makes no election.

A man makes a leaſe for yeres of a houſe, 20. El. Dy. 362.with certaine implements, reſeruing a rent, the Executors after the Teſtators death, receiue the Rent, yet it is no aſſets in their hands: for the whole rent belongeth to the heire.

96. So of a thing done in a time that it ſhould not.

A man ſeiſed in fee, lets for ten yeres, & 1. E 6. Br…c. 18.after ſelleth the land, and taketh it back to him and his wife, & then the husband and wife let it for twenty yeres, reſeruing a rent: the husband dieth, the wife accepts this rent during the firſt ten yeares. By this the ſecond leaſe is not affirmed, for the acceptance of a rent before the leaſe beginneth, and ſo before any rent be due, is no acceptance at all.

A matter pleaded or diſcloſed out of time and courſe, is as if it were not pleaded at p. 6921. El. 563.all. As if one bring an action of debt vponupon an obligation, & count that the defendant was of full age at the time, the defendant ſhall not trauers this; but onelyonly ſay he was within age, and the trauerſe muſt come of the plaintifes part.

To the circumſtance of time, theſe two rules pertaine.

Prioritie of time is imagined in things.

97. Done together.

One deuiſeth a terme for yeres to his ſon, 21. El. 540.and that the wife ſhall hauehave it during the ſonnes minoritie. This is firſt a deuiſe to his wife, and after to the ſonne when he commeth of full age.

One grants his reuerſion of lands, & by the ſame deed granteth a rent out of theſe lands to another, and deliuereth the deede to both at one ſelfe ſame time. Yet it ſhall inure firſt as a grant of the rent to the onc, and then as a grant of the reuerſion to the other.

98. Happening in an inſtant.

A meſualtie diſcends to the Tenant of the land, though the meſualtie be at the ſame 11. H. 7. 12.inſtant extinct, yet the tenant ſhall pay reliefe if he be of full age, or be in ward if he be within age (viz.) where it is holden by knights ſeruice.

Land is giuen to A. for the life of B. the p. 707. H 4 6.remainder to the right heires of B. A. dieth, the remainder takes effect before any occupant.

A man exchangeth land for a rent charge out of the ſame land. This is good enough 9. E. 4 21.though they be in an inſtant (whereby the rent ſhould be drowned in the land) for the law accounteth the exchange of the land to be firſt perfected.

99. Things relating to a time long before, be as if they were done immediatly from that time.

When the wife is indowed by the heire Lit 92.of her husbands lands, ſhe ſhall be ſaide to be in immediately from the husband. And therefore if the husband were a diſſeiſor, & the heire in by diſcent, yet the diſſeiſee may enter vponupon the wife.

Goods taken out of the poſſeſſion of an 36. H. 6. 7.executor who refuſeth, and adminiſtration is committed to I. S. I. S. may hauehave an action of Treſpaſſe, ſuppoſing they were taken out of his poſſeſſion: for he ſhall be ſaid an Adminiſtrator from the verie time of the death of the inteſtate.

Theſe rules of common reaſon do many times croſſe & incounter one another, which is the greateſt difficulty that we find in the arguing of our caſes. But to helpe this, the generall ground is according to the former rule (…) that

p. 71100. Thoſe preuaile that carrie the more excellent and perfect reaſon with them.

Tenant for life makes a leaſe for life without naming whoſe life, this ſhall be intended Lit. 110. b.for his owne life (Rule 74.) for elſe it were a wrong But if tenant in taile make Lit. 140. b.ſuch a leaſe for life, this is a diſcontinuance, and for life of the grantee (Rule 86.) for it for it is ſtrongeſt againſt the grantor, and moſt beneficiall for the grantee.

Things executed where the husband is 32. H. 8. Br. der. 18.ſeiſed in the right of his wife, ſhall not bee auoided by diuorce: as waſt committed, receit of rent, wards, or preſentments that hauehave fallen gifts made of the wiues goods, &c. Rule 39. But otherwiſe it is in matters of inheritance, as if the husband diſcontue and charge the wiues lands, releaſe or manumiſe villeines &c. Rule 30.

A feoffement is made with warrantie, 28. E. 3. 20 b. Br. gar. 27.the feoffee dieth hauing iſſue two daughters, who make partition of the land. This warrantie ſhal be diuided notwithſtanding the partition which is their owne act, and therefore not ſo much fauoured Rule 46. For the land commeth to them originally by act in law, that is by diſcent, Rule 5.

If the Chancellor die before his ſeruants 35. H. 6. 3.priuiledge diſcuſſed in banke, yet it ſhal be allowed, notwithſtanding the cauſe of his priuiledge now be gon. (contrarie to Rule 3.) But the reaſon is, for that once he had cauſe: and the act of a third perſon (that is to ſay the Court) ſhall not preiudice him p. 72where no follie was in himſelfe. Rule 63.

The husband poſſeſſed of a terme in the 9. El. Dy. 264. b.right of his wife, maketh a leaſe of parcell, rendering a Rent, the wife ſhall hauehave the reſidue of the terme, but not the rent, Rule 9. notwithſtanding it come in lieu of the land, Rule 93. and be as it were an acceſſarie vntounto it, Rule 25.

Things may be done in the night time, notwithſtanding, rule 49. where there is a kind of neceſſitie of doing them, then, Rule 44. as arbitrement made and deliuered in writing, the laſt day after the Sunne ſet, is good enough: for iudgements and arbitrements require long aduice.

So may goods be diſtreyned in the night 11. H. 7. 5.time for damage feaſant.

If one of the Chapter infeoffe Deane & Pank. 41.Chapter, by that he himſelfe ſhall take by his owne liuerie, Rule 18. notwithſtanding Rule 20.

A man may doe an act to himſelfe, notwithſtanding 13. H. …. 15.Rule 20. where the law cannot doe otherwiſe, Rule 18. as a fem tenant in ſocage may indow her ſelfe, an executor pay himſelfe, &c. Counts and declarations muſt be certain, Rule 66. yet things which containe a neceſſarie implication are good enough, Rule 94. As in an eiectione firme, & 14. El Dy. 347.count of a leaſe made by tenant for life, it ſufficeth to ſay, that the leſſor is yet ſeiſed, without alledging his life expreſly. In an information vponupon the Statute of vſurie, and count that the defendant tooke per viam, & p. 73medium corrupte mutationis, where it ſhould bee accomodationis, yet it is good enough.

Corporall ſeruice as ſuite of Court &c. 7. H. 4. 9.cannot be done by another, Rule 14. notwithſtanding Rule 92.

Matters of truſt or authoritie, &c. cannot be granted ouer: becauſe being ſtrictly taken, they are eſteemed to belong to the perſon, and therfore guided by Rule 15. Yet an office of skill and diligence to one and his heires, may be granted ouer. So vponupon 12. El. 379. b.a letter of Attorny to deliuer ſeiſin to A. he may deliuer it to the Attornie of A. for that vponupon the matter is a poſſeſſion deliuered to himſelfe, Rule 21.

Tenant in taile makes a feoffement with 25. El. Earle of Leic. caſe.warrantie, and leaueth to diſcend a reuerſion in fee ſimple expectant vponupon an eſtate taile, which I. S. hath; this is no aſſets, for it may be tolled by a common recouerie (& therfore the law eſteemeth it as if it were ſo) But it ſeemeth otherwiſe of a reuerſion depending vponupon an eſtate taile of land which the iſſue himſelfe hath, for it were the follie of the iſſue in taile to cut it off, Rule 70.

p. 74CHAP. 6.

Of Lawes Poſsitiue.

A And ſo much of Lawes Natiue.

The Law of nature and of reaſon, or the Law of reaſon primarie and ſecundarie, with the rules framed and collected thereupon Which three are as the Sunne and the Moone and the ſeuen Starres, to giuegive light to al the poſſitue laws of the world.

Poſſitiue are laws framed by their light, & from thence come the grounds & maximes of all Common Law: for that which we call common law, is not a word new & ſtrange, or barbarous, and proper to our ſelues, and the law that that we profeſſe, as ſome vnlearnedly would hauehave it, but the right terme for all other lawes. So Euripides mencioneth … the Common Lawes of Greece: and Plato doth define it, ſpeaking of … the reaſoning facultie, … ſaith he … which being taken vp by the common conſent of a Countrie, is called Law. And anon he nameth it … the golden and ſacred rule of reaſon, which p. 75we call Common Law. The place is verie notable: it openeth the originall and firſt beginning of the Common law, it ſheweth the antiquitie of the name, in effect all one with that which ſince and by a later name is called Ius Ciuile (quod quiſque populꝰ ipſe ſibi ius conſtituit, as Iuſtinian ſpeaketh) it teacheth Common Law to be nothing els but common reaſon: but what reaſon? not that which euerie one doth frame vntounto himſelfe: but refined reaſon. Quae cum adoleuit atque perfecta eſt nominatur rite ſapientia as Tully ſaith, and as Plato there hath it, when it commeth to be … opinio or decretum. How? … generally receiued by the conſent of all.

Therefore Lawes poſitiue, which are directly contrarie to the former, looſe their force, and are no lawes at all.

As thoſe which are contrarie to the Law of nature. Such was that of the Egyptians, to turne women to marchandiſe, and common-wealth affaires, & men to keep within dores. And of the Thracians, which accounted idleneſſe an honeſt thing, and ſtealing verie commendable. So if it were made a law, that men might commit adulterie, forge falſe deeds, &c. And this is manifeſt vntounto all men. But becauſe the law of reaſon is knowne onelyonly to ſuch as are able to iudge aright, and that but imperfectly (as p. 76before was ſhewed) therefore here the caſe is harder, what lawes may be ſaid agreeable and what repugnant thereunto. OnelyOnly in general (which is ſufficient for this place and purpoſe) it is truly ſaid, & all men muſt agree, that lawes in deed repugnant to the law of reaſon, are aſwell void, as thoſe that croſſe the law of nature.

Poſitiue lawes are ſundrie and diuers, according to the ſeuerall and oiuers conſtitutions of particular places and Countries.

Such among the Iewes were their Politicals, deliuered by Moſes, which ſo farre as they bee poſſitiue, binde vsus not vntounto them. Such were the antient law of the Grecians, the xij tables, & ciuil lawes of the Romans, and Such are the Common Lawes of England. And almoſt ſo many people ſo many Lawes. And as thoſe lawes are diuers one from another, ſo one and the ſelf ſame laws may be altered and changed in themſelues. So long as no alteration is permitted againſt the two maine Lawes, of Nature, and Reaſon.

p. 77The ſecond booke of LAVV.