THE MAXIMS OF THE LAW.

REGULA I.

In jure non remota causa, sed proxima spectatur.

Ir were infinite for the law to judge the causes of causes, and their impulsions one of another; therefore, it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.

6 H. 8 Dy. fo. 1. et 2.

As if an annuity be granted pro consilio impenso et impendendo, and the grantee commit treason, whereby he is imprisoned, so that the grantor cannot have access unto him for his counsel; yet, nevertheless, the annuity is not determined by this non-feasance; yet it was the grantee's act and default to commit the treason, whereby the imprisonment grew: but the law looketh not so far, but excuseth him, because the not giving counsel was compulsory, and not voluntary, in regard of the imprisonment. So if a parson make a lease, and be Cont. 2.4.3. deprived, or resign, the successors 26. H. 8. 2. shall avoid the lease; and yet the cause of deprivation, and more strongly of a resignation, moved from the party himself; but the law regardeth not that, because the admission of the new incumbent is the act of the ordinary.

Litt. cap. Dis

So if I be seised of an advowson in gross, and a usurpation be had against me, and at the next avoidance I usurp arere, I shall be remitted: and yet the presentation, which is the act remote, is mine own act; but the admission of my clerk, whereby the inheritance is reduced to me, is the act of the ordinary.

So if I covenant with I. S. a stran

5 H. 7. 26. ger, in consideration of natural love to my son, to stand seised of the use of the said I. S. to the intent he shall enfeoff my son; by this no use ariseth to I. S. because the law doth respect. that there is no immediate consideration between me and I. S.

which is the immediate act whereto I am bound, is a corporal act which lieth not in satisfaction; therefore, the law taketh no consideration that the remote intent was for money.

ton's case, or re

reverendJudgel,

So if I make a feoffment in fee, upon M. 40 et 41. El. condition that the feoffee shall enfeoff Julius Winningover, and the feoffee be disseised, and port per le tree a descent cast, and then the feoffee eSurCoke,lib.2. bind himself in a statute, which statute is discharged before the recovery of the land: this is no breach of the condition, because the land was never liable to the statute, and the possibility that it should be liable upon the recovery the law doth not respect.

So if I enfeoff two, upon condition to enfeoff, and one of them take a wife, the condition is not broken; and yet there is a remote possibility that the joint-tenant may die, and then the feme is entitled to dower.

So if a man purchase land in fee-simple, and die without issue; in the first degree the law respecteth dignity of sex, and not proximity; and therefore the remote heir, on the part of the father, shall have it before the near heir on the part of the mother: but, in any degree paramount the first the law respecteth not, and therefore the near heir by the grandmother, on the part of the father, shall have it, before the remote heir of the grandfather on the part of the father.

This rule faileth in covinous acts, which, though they be conveyed through many degrees and reaches, yet the law taketh heed to the corrupt beginning, and counteth all as one entire act.

case, obiter.

As if a feoffment be made of lands 37 R. Dacre's held by knight's service to I. S. upon condition that he, within a certain time, shall enfeoff I. D. which feoffment to I. D. shall be to the use of the wife of the first feoffer for her jointure, &c.; this feoffment is within the statute of 32 H. VIII. nam dolus circuitu non purgatur.

In like manner this rule holdeth not in criminal acts, except they have a full interruption; because when the intention is matter of substance, and that which the law doth principally behold, there the first motive will be principally regarded, and not the last impulsion. As if I. S. of malice prepense discharge a pistol autres in case de at I. D. and miss him, whereupon he throws down his pistol and flies, and I. D. pursueth him to kill him, whereupon he turneth and killeth I. D. with a dagger; if the law should consider

Op. Cattelyn et

Stoel

the last impulsive cause, it should say that it was in his own defence: but the law is otherwise, for it is but a pursuance and execution of the first murderous intent.

44 Ed. 3.

But if I. S. had fallen down, his dagger drawn, and I. D. had fallen by haste upon his dagger, there I. D. had been felo de se, and I. S. shall go quit.

Also, you may not confound the act with the execution of the act; nor the entire act with the last part, or the consummation of the act.

Lit. cap. de discent.

discontinuee pleadeth villanage; this is no plea, because the divesting of the manor, which is the intent of the suit, doth include this plea, because it determineth the villanage.

50 E. 3.

So if a tenant in ancient demesne be disseised by the lord, whereby the seigniory is suspended, and the disseisee bring his assize in the court of the lord, frank fee is no plea, because the suit is brought to undo the disseisin, and so to revive the seigniory in ancient demesne.

So if a man be attainted and exe- 7 H. 4. 39. 7 H. cuted, and the heir bring error upon the 6.44.

For if a disseisor enter into religion, the immediate cause is from the party, though the descent be cast in law; but the law | attainder, and corruption of blood by the same doth but execute the act which the party pro- attainder be pleaded, to interrupt his conveying cureth, and therefore the descent shall not bind, in the same writ of error; this is no plea, for then et sic è converso. he were without remedy ever to reverse the attainder.

24 H. 8. fo. 4. Dy. 21. R.

If a lease for years be made render21 Eliz. ing a rent, and the lessee make a feoffment of part, and the lessor enter, the immediate cause is from the law in respect of the forfeiture, though the entry be the act of the party; but that is but the pursuance and putting in execution of the title which the law giveth and therefore the rent or condition shall be apportioned.

9 H. 7. 24, 3 et

So, in the binding of a right by a descent, you are to consider the whole time from the disseisin to the descent cast; and if, at all times, the person be not privileged, the descent binds. And, therefore, if a feme covert be 4P.et M. Dr. 143. disseised, and the baron dieth, and she taketh a new husband, and then the descent is cast: or if a man that is not infra quatuor maria, be disseised, and return into England, and go over sea again, and then a descent is cast, this descent bindeth, because of the interim when the persons might have entered; and the law respecteth not the state of the person at the last time of the descent cast, but a continuance from the very disseised to the descent.

4 et 5 P. et M. Dy. 159.

So if baron and feme be, and they join in a feoffment of the wife s land rendering a rent, and the baron die, and the feme take a new husband before any rent-day, and he accepteth the rent, the feoffment is affirmed for

38 Ed. 3. 32.

So if tenant in tail discontinue for life rendering rent, and the issue brings formedon, and the warranty of his ancestor with assets is pleaded against him, and the assets is layed to be no other but his reversion with the rent; this is no plea, because the formedon, which is brought to undo this discontinuance, doth inclusively undo this new reversion in fee, with the rent thereunto annexed.

But whether this rule may take place where the matter of the plea is not to be avoided in the same suit, but another suit, is doubtful; and I rather take the law to be, that this rule doth extend to such cases; for otherwise, the party were at a mischief, in respect the exceptions and bars might be pleaded cross, either of them, in the contrary suit; and so, the party altogether prevented and intercepted to come by his right.

So if a man be attainted by two several attainders, and there is error in them both, there is no reason but there should be a remedy open for the heir to reverse those attainders being erroneous, as well if they be twenty as one.

And, therefore, if in a writ of error brought by the heir of one of them, the attainder should be a plea peremptorily; and so again, if in error brought of that other, the former should be a plea; these were to exclude him utterly of his right; and therefore it shall be a good replication to say, that he hath a writ of error depending of that also, and so the court shall proceed: but no judgment Non potest adduci exceptio ejusdem rei, cujus peti- shall be given till both pleas be discussed; and

ever.

REGULA II.

tur dissolutio

IT were impertinent and contrary in itself, for the law to allow of a plea in bar of such matter as is to be defeated by the same suit; for it is included otherwise a man should never come to the end and effect of his suit, but be cut off in the way.

And, therefore, if tenant in tail of a manor, whereunto a villain is regardant, discontinue and die, and the right of the entail descend unto the villain himself, who brings formedon, and the

if either plea be found without error, there shall be no reversal either of the one or of the other; and if he discontinue either writ, than shall it be no longer a plea; and so of several outlawries in a personal action.

And this seemeth to me more reasonable, than that generally an outlawry or an attainder should be no plea in a writ of error brought upon a diverse outlawry or attainder, as 7 H. IV. and 7 H. VI. seem to hold; for that is a remedy too large for the mischief; for there is no reason but if any

of the outlawries or attainders be indeed without error, but it should be a peremptory plea to the person in a writ of error, as well as in any other

action.

37 R.

But if a man levy a fine sur conusaunce de droit come ceo que il ad de son done, and suffer a recovery of the same lands, and there be error in them both, he cannot bring error first of the fine, because, by the recovery, his title of error is discharged and released in law inclusivè but he must begin with the error upon the recovery, which he may do, because a fine executed barreth no titles that accrue de puisne tems after the fine levied, and so restore himself to his title of error upon the fine: but so it is not in the former case of the attainder; for a writ of error to a former attainder is not given away by a second, except it be by express words of an act of Parliament, but only it remaineth a plea to his person while he liveth, and to the conveyance of his heir after his death.

much quiet and certainty, and that in two sorts; first, because it favoureth acts and conveyances executed, taking them still beneficially for the grantees and possessors: and secondly, because it makes an end of many questions and doubts about construction of words; for if the labour were only to pick out the intention of the parties, every judge would have a several sense; whereas this rule doth give them a sway to take the law more certainly one way.

But this rule, as all other which are very general, is but a sound in the air, and cometh in sometimes to help and make up other reasons without any great instruction or direction; except it be duly conceived in point of difference, where it taketh place, and where not. And first we will examine it in grants, and then in pleadings.

The force of this rule is in three things, in ambiguity of words, in implication of matter, and deducing or qualifying the exposition of such grants as were against the law, if they were taken according to their words.

2 R. 3. 18.

21 H. 7. 29.

But if a man levy a fine where he hath nothing in the land, which inureth by way of conclusion And, therefore, if I. S. submit himonly, and is executory against all purchases and self to abitrement of all actions and new titles which shall grow to the conusor after-suits between him and I. D. and I. N. it rests wards, and he purchase the land, and suffer a ambiguous whether this submission shall be inrecovery to the conusee, and in both fine and re-tended collectivè of joint actions only, or distribucovery there is error; this fine is Janus bifrons, and will look forwards, and bar him of his writ of error brought of the recovery; and therefore it will come to the reason of the first case of the attainder, that he must reply, that he hath a writ also depending of the same fine, and so demand judgment.

16 E. 3.

tivè of several actions also; but because the words shall be strongliest taken against I. S. that speaks them, it shall be understood of both for if I. S. had submitted himself to abitrement of all actions and suits which he hath now depending, except it be such as are between him and I. D. and I. N. now it shall be understood collectivè only of joint actions, because in the other case large construction was hardest against him that speaks, and in this case strict construction is

To return to our first purpose, like Fitz. age, 45. law is it if tenant in tail of two acres make two several discontinuances to several persons for life rendering a rent, and bringeth a for-hardest. medon of both, and in formedon brought of white So if I grant ten pounds rent to 8 Ass. p. 10. acre the reversion and rent reserved upon black baron and feme, and if the baron die acre is pleaded, and so contrary: I take it to be that the feme shall have three pounds rent, a good replication, that he hath formedon also because these words rest ambiguous whether I upon that depending, whereunto the tenant hath intend three pounds by way of increase, or three pleaded the descent of the reversion of white acre; pounds by way of restraint and abatement of the and so neither shall be a bar: and yet there is no former rent of ten pounds, it shall be taken doubt but if in a formedon the warranty of tenant strongliest against me that am the grantor, that is in tail with assets be pleaded, it is no replication three pounds addition to the ten pounds: but if I for the issue to say, that a præcipe dependeth had let lands to baron and feme for three lives, brought by I. S. to evict the assets. reserving ten pounds per annum, and, if the baron

But the former case standeth upon the particu- die, reserving three pounds; this shall be taken lar reason before mentioned.

REGULA III.

Verba fortius accipiuntur contra proferentem. THIS rule, that a man's deeds and his words shall be taken strongliest against himself, though it be one of the most common grounds of the law, it is notwithstanding a rule drawn out of the depth of reason; for, first, it is a schoolmaster of wisdom and diligence in making men watchful in their own business; next, it is the author of VOL. III.-29

contrary to the former case, to abridge my rent only to three pounds.

So if I demise omnes boscos meos in 14 H. 8.29 H. 8. villa de Dale for years, this passeth the Dr. 19. soil; but if I demise all my lands in Dale exceptis boscis, this extendeth to the trees only, and not to the soil.

So if I sow my land with corn, and let it for years, the corn passeth to the lessee, if I except it not; but if I make a lease for life to I. S. upon condition that upon request he shall make me a

lease for years, and I. S. sow the ground, and then I | make request, I. S. may well make me a lease excepting his corn, and not break the condition. So if I have free warren in my own 6. 32 H. 6. 24. land, and let my land for life, not men28 H.8.Dy.30.6. tioning the warren, yet the lessee, by implication, shall have the warren discharged and extract during his lease: but if I let the land una cum libera warrena, excepting white acre, there the warren is not by implication reserved unto me either to be enjoyed or extinguished; but the lessee shall have warren against me in white