Page images

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 his coherence and relation unto other rules, seem more cunning and more 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 to 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 Theognis 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 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 farther than the propriety of terms of law would permit; 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 particular 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 besides 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 excluding any other than professed lawyers, it were better manners to exclude them by the strangeness of the language, than by the obscurity of the conceit: which is such as though it had been written in no private and retired language, yet by those that are not lawyers would for the most part have been either not 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 in credit of itself as it needeth 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 cases I did intend expressly to weigh down authorities by evidence of reason, and therein rather to correct the law, than either to soothe a received error, or by unprofitable subtlety, which corrupteth the sense of the law, to reconcile contrarieties. For these reasons I resolved not to derogate from the authority of the rules, by vouching of the authorities 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 control; 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 to allow still to be true, but in the mean time they give little light and direction; but I have attended them, a matter not practised, no not in the civil law to any purpose: and for want whereof, the rules indeed are but as proverbs, and many times plain fallacies, with a clear and perspicuous exposition, breaking them into cases, and opening their sense and use, and limiting them with distinction, and sometimes showing the reasons whereupon they depend, and the affinity they have with other rules. And though I have thus, with as much discretion and foresight as I could, ordered this work, and as I may say, without all colours or shows, husbanded it best to profit; 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 advise for the altering of the other which remain: for it is great reason that that which is intended to the profit of others, should be guided by the conceits of others.



In jure non remota causa sed proxima spectatur. Ir were infinite for the law to consider 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 farther degree.

1. et 2.

As if an annuity be granted "pro con6 H. 8. Dy. fo. silio 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, and excuseth him, because the not giving counsel was compulsory, and not voluntary, in regard of the imprisonment.

[blocks in formation]

5 H 7.35.

So if I be seised of an advowson in gross, and an 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 stranger, in consideration of natural love to my son, to stand seised to the use of the said I. S. to the intent he shall infeoff my son; by this no use will rise to I. S. because the law doth respect that there is no immediate consideration between me and I. S. So if I be bound to enter into a 12 H. 44. H. 8. Dy. f. 1. statute before the mayor of the staple at such a day, for the security of a hundred pounds, and the obligee, before the day, accept of me a lease of a house in satisfaction; this is no plea in debt upon my obligation: and yet the end of this statute was but security for money; but because the entering into this statute itself, which is the mediate 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.

So if I make a feoffment* in fee, 37 R. Chest. upon condition that the feoffee shall

*M. 40 et 41. El. Julius Winnington's case, ore report per le très reverend Judge, le Sur Coke, lib. 2.

[ocr errors]

infeoff over, and the feoffee be disseised, and a descent cast, and then the feoffee 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 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 jointtenant 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 it not, and therefore the near her 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.

37 R. Dacre's case, obiter.

As if a feoffment be made of lands held in 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 wife of the first feoffer for her jointure, &c. this feoffment is within the statute of 32 H. VIII. " nam dolus circuitu non purgatur."

case de Stoel.

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 must be principally regarded, and not the last impulsion. As if I. S. of malice Op. Cattelyn prepense discharge a pistol at I. D. and et autres in 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 the last impulsive cause, it should say that this was in his own defence; but the law is otherwise, for it is but a pursuance and execution of the first murderous intent. But if I. S. had fallen down, his dag44 Ed. 3. ger 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.

For if a disseisor enter into reli- Lit. cap de gion, the immediate cause is from the


party though the descent be cast in law; but the law doth but execute the act which the party procureth, and therefore the descent shall not bind, et sic e


21 Eliz.

If a lease for years be made rendering 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, 24 H. 8. fo. 4. though the entry be the act of the Dy. 21 R. 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.

So in the binding of a right by 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.

9 H. 7. 24, 3 et


And therefore if a feme covert be 4 P. et M. Dr. 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 disseisin to the descent.

[blocks in formation]

Non potest adduci exceptio ejusdem rei, cujus petitur dissolutio.

Ir 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: and 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 entail descend unto the villain himself, who brings formedon, and the discontinuee pleadeth villenage; this is no plea, because the devester of the manor, which is the intent of the suit, doth include this plea, because it determineth the villenage. So if 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 to undo the disseisin, and to receive the seigniory in ancient demesne.

50 E. 3.

[blocks in formation]

life rendering rent, and the issue brings formedon, and the warrant 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, and the rent thereunto annexed.

But whether this rule may take place when the matter of the plea is not to be avoided in the same suit but in another suit, is doubtful; and I rather take the law to be, that this rule doth extend to such cases; where otherwise the party were at a mischief, in respect the exceptions or 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 the writ of error brought by the heir of one of them, the other attainder should be a plea peremptory; 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 shall be given till both pleas be discussed; and 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, then 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 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 the 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 the heir after his death.

But if a man levy a fine where he hath nothing in the land, which inureth by way of conclusion only, and is executory against all purchases and new titles which shall grow to the conusor afterwards, and he purchase the land, and suffer a recovery to

the conusee, and in both fine and recovery there is | had submitted himself to arbitrement of all actions error; this fine is Janus bifrons, and will look for- and suits which he hath now depending, except it wards, to bar him in the writ of error brought of be such as are between him and I. D. and I. N. now the recovery and therefore it will come to the it shall be understood collectivè only of joint actions, reason of the first cause of the attainder, that he because in the other case large construction was must reply, that he hath a writ of error also de- hardest against him that speaks, and in this case pending of the same fine, and so demand judgment. strict construction is hardest. 16 E. 3. Fitz. To return to our first purpose, like age, 45. law is it if tenant in tail of two acres make two several discontinuances to two several persons for life rendering, and bring the formed on 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 warrant of tenant in tail with assets be pleaded, it is a replication for the issue to say, that a præcipe dependeth brought by I. S. to evict the assets.

So if I grant ten pounds rent to ba- 8 Ass. p. 10. ron 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 die, reddendum three pounds; this shall be taken contrary to the former case, to abridge my rent only to three pounds. So if I demise " omnes boscos meos in villa de Dale" for years, this passeth

But the former case standeth upon the particular the soil; but if I demise all my lands reason before mentioned.


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 author of 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 rules 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 reducing and qualifying the exposition of such grants as were against the law, if they were taken according to their words.

[blocks in formation]

14 H. 8.

28 H. 8. Dr. 19.

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.

8 H. 9. 5.
32 H. 6. 24.
28 H. 8.
Dy. 30. 6.

So if I have free warren in my own land, and let my land for life, not mentioning my warren, yet the lessee by implication shall have the warren discharged and extinct during his lease: but if I had let the land "una cum libera garrena," excepting white acre, there the warren is not by implication reserved unto me either to be enjoyed or to be extinguished; but the lessee shall have the warren against me in white acre.

So if I. S. hold of me by fealty and 29 Ass. pl. 20. 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 rent service, and not of rent secke.

44 Ed. 3. 19.

Otherwise had it been if the seigniory 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 26 Ass. pl. 66. rent, and I grant the manor, excepting the rent of I. S. there the fealty shall pass to the grantee, and I 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 so leave it a rent in fee-simple; but the words "heirs and all" are void, and leaves that

[blocks in formation]

4 H. 6. 22.

But if I give land in frank marriage, 26 Ass. pl. 66. 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. So if I let white acre, black acre, and green acre to I. S. excepting white acre, this exception is void, because it is repugnant; but if I let the three acres aforesaid, reddendo twenty shillings rent, viz. for white acre ten shillings, and for black acre ten shillings, I shall not distrain at all in green acre, but that shall be discharged of my rent.

46 E. 3. 18.

So if I grant a rent to I. S. and his heirs out of my manor of Dale, "et obligo manerium prædictum et omnia bona et catalla mea super manerium prædictum existentia ad distringendum per ballivos domini regis:" this limitation of the distress to the king's bailiffs is void, and it is good to give a power of distress to I. S. the grantee, and his bailiffs.

2 Ed. 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 chief lord is void; but 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 intended to be reserved upon the gift in tail as for ovelty.


21 Ed. 3. 49,
31 et 32 H.
8. Dyer 46.

35 H. 6. 34.

his office, but in absence of other rules which are of some equity and humanity; which rules you shall find afterwards set down with their expositions and limitations.

14 Ass. pl. 21.

But now to give a taste of them to this present purpose: it is a rule, that general words shall never be stretched to foreign intendment, which the civilians utter thus: "Verba generalia restringuntur ad habilitatem personæ, vel ad aptitudinem rei." Therefore if a man grant to another common "intra metas et bundas villæ de Dale," and part of the ville is his several, and part is his waste and common; the grantee shall not have common in the several: and yet that is the strongest exposition against the grantor. So it is a rule, "Verba ita sunt intelligenda, ut res magis valeat, quam pereat" and therefore if I give land to I. S. and his heirs "reddendo quinque libros annuatim" to I. D. and his heirs, this implies a condition to me that am the grantor; yet it were a stronger exposition against me, to say the limitation should be void, and the feoffment absolute.

Lit. cap. cond.

So it is a rule, that the law will not 10 Ed. 4. 1. intend a wrong, which the civilians utter thus: "Ea est accipienda interpretatio, quæ vitio caret." And therefore if the executors of I. S. grant " omnia bona et catalla sua," the goods which they have as executors, will not pass, because non constat whether it may not be a devastation, and so a wrong; and yet against the trespasser that taketh them out of their possession, they shall declare "quod bona sua cepit."


3 H. 6. 20.

So it is a rule, words are so to be understood that they work somewhat, and be not idle and frivolous: "Verba aliquid operari debent, verba cum effectu sunt accipienda." And therefore if I bargain and sell you four parts of my manor of Dale, and say not in how many parts to be divided, this shall be construed four parts of five, and not of six or seven, &c. because that it is the strongest against me; but on the other side, it shall not be intended four parts of four parts, that is, whole of four quarters; and yet that were strongest of all, but then the words were idle and of none effect. So it is a rule, So if I give land to I. S. and the Divinatio non inheirs of his body, and for default of terpretatio est, quæ omnino recedit a Plow. fo. 37. such issue "quod tenementum prædic- litera:" and therefore if I have a free rent or free tum revertatur ad I. N." yet these farm-rent issuing out of white acre of ten shillings, words of reversion will carry a remainder to a and I reciting the same reservation do grant to I. S. stranger. But if I let white acre to I. S. excepting the rent of five shillings "percipiend' de reddit' ten shillings rent, these words of exception to mine prædict' et de omnibus terris et tenementis meis in own benefit shall never inure to words of reservation. Dale," with a clause of distress, although there be But now it is to be noted, that this rule is the rule atturnement, yet nothing passeth out of my former; which is last to be resorted to, and is never to be and yet that were strongest against me to have it a relied upon but where all other rules of exposition double rent, or grant of part of that rent with an enof words fail and if any other rule come in place, largement of a distress in the other land, but for this giveth place. And that is a point worthy to be that it is against the words, because "copulatio observed generally in the rules of the law, that verborum indicat exceptionem in eodem sensu," and when they encounter and cross one another in any the word de, anglicè out of, may be taken in two case, that be understood which the law holdeth senses, that is, either as a greater sum out of a less, worthier, and to be preferred; and it is in this par- or as a charge out of land, or other principal inticular very notable to consider, that this being a terest; and that the coupling of it with lands and rule of some strictness and rigor, doth not, as it were, tenements, doth define the sense to be one rent

« PreviousContinue »