equally balanced, as the one law embraceth one course, and the other the contrary, and both just, after either is once positive and certain, or where the laws vary in regard of accommodating the law to the different considerations of estate, I have not omitted to set down. Thirdly, Whereas I could have digested these rules into a certain method or order, which, I know, would have been more admired, as that which would have made every particular rule, through coherence and relation unto other rules, seem more cunning and deep; yet I have avoided so to do, because this delivering of knowledge in distinct and disjoined aphorisms doth leave the wit of man more free to turn and toss, and to make use of that which is so delivered to more several purposes and applications; for we see that all the ancient wisdom and science was wont to be delivered in that form, as may be seen by the parables of Solomon, and by the aphorisms of Hippocrates, and the moral verses of Theognes and Phocylides; but chiefly the precedent of the civil law, which hath taken the same course with their rules, did confirm me in my opinion. Fourthly, Whereas I know very well it would have been more plausible and more current, if the rules, with the expositions of them, had been set down either in Latin or in English; that the harshness of the language might not have disgraced the matter; and that civilians, statesmen, scholars, and other sensible men might not have been barred from them; yet I have forsaken that grace and ornament of them, and only taken this course: the rules themselves I have put in Latin, not purified further than the property of the terms of the law would permit; but Latin, which language I chose, as the briefest to contrive the rules compendiously, the aptest for memory, and of the greatest authority and majesty to be avouched and alleged in argument: and for the expositions and distinctions, I have retained the peculiar language of our law, because it should not be singular among the books of the same science, and because it is most familiar to the students and professors thereof, and because that it is most significant to express conceits of law; and to conclude, it is a language wherein a man shall not be enticed to hunt after words but matter; and for the excluding of any other than professed lawyers, it was better manners to exclude them by the strangeness of the language, than by the obscurity of the conceit; which is as though it had been written in no private and retired language, yet by those that are not lawyers would for the most part not have been understood, or, which is worse, mistaken. Fifthly, Whereas I might have made more flourish and ostentation of reading, to have vouched the authorities, and sometimes to have enforced or noted upon them, yet I have abstained from that also; and the reason is, because I judged it a matter undue and preposterous to prove rules and maxims; wherein I had the example of Mr. Littleton and Mr. Fitzherbert, whose writings are the institutions of the laws of England; whereof the one forbeareth to vouch any authority altogether; the other never reciteth a book, but when he thinketh the case so weak of credit in itself as it needs a surety; and these two I did far more esteem than Mr. Perkins or Mr. Standford, that have done the contrary. Well will it appear to those that are learned in the laws, that many of the cases are judged cases, either within the books. or of fresh report, and most of them fortified by judged cases and similitude of reason; though, in some few cases, I did intend expressly to weigh down the authority by evidence of reason, and therein rather to correct the law, than either to soothe a received error, or by unprofit able subtlety, which corrupteth the sense of law, to reconcile contrarieties. For these reasons I resolved not to derogate from the authority of the rules, by vouching of any of the authority of the cases, though in mine own copy I had them quoted: for, although the meanness of mine own person may now at first extenuate the authority of this collection, and that every man is adventurous to con trol; yet, surely, according to Gamaliel's reason, if it be of weight, time will settle and authorize it; if it be light and weak, time will reprove it. So that, to conclude, you have here a work without any glory of affected novelty, or of method, or of language, or of quotations and authorities, dedicated only to use, and submitted only to the censure of the learned, and chiefly of time. Lastly, There is one point above all the rest I account the most material for making these reasons indeed profitable and instructing; which is, that they be not set down alone, like short, dark oracles, which every man will be content still to allow to be true, but in the mean time they give little light or direction, but I have attended them, a matter not practised, no, not in the civil law, to any pur pose, and for want whereof, indeed, the rules are but as proverbs, and many times plain fallacies, with a clear and perspicuous exposition, breaking them into cases, and opening them with distine tions, and sometimes showing the reasons above, whereupon they depend, and the affinity they have with other rules. And though I have thus, with as good discretion and foresight as I could, ordered this work, and, as I might say, without all colours or shows, husbanded it best to proft; yet, nevertheless, not wholly trusting to mine own judgment; having collected three hundred of them, I thought good, before I brought them all into form, to publish some few, that, by the taste of other men's opinions in this first, I might receive either approbation in mine own course, or better advice for the altering of the other which remain; for it is a great reason that that which is intended o the profit of others should be guided by the conceits of others. THE MAXIMS OF THE LAW. REGULA I. 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 In jure non remota causa, sed proxima spectatur. the remote intent was for money. It 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. & Dy. to. 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 Litt. cap. Die 43. deprived, or resign, the successors 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. 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 stran6 HL. 7. 25. 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 ine and I. S. 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 tres a descent cast, and then the feoffee e SurCoke,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 able 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. case, obiter. 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. 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. 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 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- TH 4.59. TB. cuted, and the heir bring error upon the 6.44 attainder, and corruption of blood by the same attainder be pleaded, to interrupt his conveying in the same writ of error; this is no plea, for then he were without remedy ever to reverse the attainder. 38 EA £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 attain ders, 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. 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 inclusive 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 titie 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 be 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. To return to our first purpose, like 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 formedon of both, and in formedon brought of white acre the reversion and rent reserved upon black acre is pleaded, and so contrary: I take it to be a good replication, that he hath formedon also upon that depending, whereunto the tenant hath pleaded the descent of the reversion of white acre; and so neither shall be a bar: and yet there is no doubt but if in a formedon the warranty of tenant in tail with assets be pleaded, it is no replication for the issue to say, that a præcipe dependeth brought by I. S. to evict the assets. 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 hardest. So if I grant ten pounds rent to 8 Ass. p. 10. baron and feme, and if the baron die that the feme shall have three pounds rent, because these words rest ambiguous whether I intend three pounds by way of increase, or three pounds by way of restraint and abatement of the former rent of ten pounds, it shall be taken strongliest against me that am the grantor, that is three pounds addition to the ten pounds: but if I had let lands to baron and feme for three lives, 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. Ferba 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 8 H. 7. 8 H. 9. 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 632 H. 6. 24. land, and let my land for life, not men23 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 acre. So if I. S. hold of me by fealty and 29 Ass. pl. 10. rent only, and I grant the rent, not speaking of the fealty; yet the fealty by implication shall pass, because my grant shall be taken strongly as of a rent service, and not of a rent secke. 26 Ass. pl. 66. Otherwise had it been if the seigniory 44 Ed. 3. 19. had been by homage, fealty, and rent, because of the dignity of the service, which could not have passed by intendment by the grant of the rent but if I be seised of the manor of Dale in fee, whereof I. S. holds by fealty and rent, and I grant the manor, excepting the rent, the fealty shall pass to the grantee, and I. S. shall have but a rent secke. So in grants against the law, if I give land to I. S. and his heirs males, this is a good fee-simple, which is a larger estate than the words seem to intend, and the word "males" is void. But if I make a gift in tail, reserving rent to me and the heirs of my body, the words "of my body" are not void, and to leave it rent in fee-simple; but the words "heirs and all" are void, and leave it but a rent for life: except, that you will say, it is but a limitation to any my heir in fee-simple which shall be heir of my body; for it cannot be rent in tail by reservation. 45 E. 3. 290. 24 R. But if I give land with my daughter in frank marriage, the remainder to I. S. and his heirs, this grant cannot be good in all parts, according to the words: for it is incident to the nature of a gift in frank marriage, that the donee hold of the donor; and therefore my deed shall be taken so strongly against myself, that rather than the remainder shall be void, the frank marriage, though it be first placed in the deed, shall be void as a frank marriage. But if I give land in frank marriage, reserving to me and my heirs ten pounds rent, now the frank marriage stands good, and the reservation is void, because it is a limitation of a benefit to myself, and not to a stranger. * Quære car le ley sémble déi le contrary en tant que in un grant quant lun part del fait ne poit estoier oue lauter le darr: serra void, auterment in un devise et accordant fuit lopin: de Sur Anderson et Owen Just: contra Walmesley Just. P. 40. 2 E3. 4. 5 But if I give land in tail tenendo de capitalibus dominis per redditum viginti solidorum per fidelitatem: this limitation of tenure to the lord is void; and it shall not be good, as in the other case, to make a reservation of twenty shillings good unto myself; but it shall be utterly void, as if no reservation at all had been made: and if the truth be that I, that am the donor, hold of the lord paramount by ten shillings only, then there shall be ten shillings only reserved upon the gift in tail as for ovelty. So if I give land to I. S. and the heirs of his body, and for default of et 32H & vet such issue quod tenementum prædictum revertatur ad I. N. yet these words of reservation will carry a remainder to a stranger. But if I let white acre to I. S. excepting ten shillings rent, these words of exception to mine own benefit shall never inure to words of reservation. But now it is to be noted, that this rule is the last to be resorted to, and is never to be relied upon but where all other rules of exposition of words fail; and if any other rule come in place, this giveth place. And that is a point worthy to be observed generally in the rules of the law, that when they encounter and cross one another in any case, it be understood which the law holdeth worthier, and to be preferred; and it is in this particular very notable to consider, that this being a rule of some strictness and rigour, doth not, as it were, his office, but in absence of other rules which are of more equity and humanity; which rules you shall find afterwards set down with their expositions and limitations. But now to give a taste of them to this present purpose: it is a rule, that general words shall never be stretched too far in intendment, which the civilians utter thus: Verba generalia restringuntur ad habilitatem personæ, vel ad aptitudi nem rei. Therefore, if a man grant to another, 14 p. 1. common intra metas et bundas villæ de Dale, and Eliz. in le case de Comtesse de Warwick et Sur Barkley in part of the ville is his several, and part is his waste and common; the grantee shall not have com. banco. |