THE MAXIMS OF THE LAW. REGULA I. In jure non remota causa, sed proxima spectatur. 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. 8 Dy. fo. 1. et 2. 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. M. 40 et 41. El. Julius Winningport per le tree ton's case, or re reverend Judgel, e So if I make a feoffment in fee, upon condition that the feoffee shall enfeoff over, and the feoffee be disseised, and a descent cast, and then the feoffee 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 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. 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, So if a man purchase land in fee-simple, and and not voluntary, in regard of the imprisonment. die without issue; in the first degree the law So if a parson make a lease, and be respecteth dignity of sex, and not proximity; and Cont. 2. 43. deprived, or resign, the successors therefore the remote heir, on the part of the father, 26. H. 8. 2. shall avoid the lease; and yet the shall have it before the near heir on the part of cause of deprivation, and more strongly of a the mother: but, in any degree paramount the resignation, moved from the party himself; but first the law respecteth not, and therefore the near the law regardeth not that, because the admis-heir by the grandmother, on the part of the father, sion of the new incumbent is the act of the shall have it, before the remote heir of the grandordinary. father on the part of the father. 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 ine and I. S. 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 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 aufres in case de Stoel. For if a disseisor enter into religion, 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 è converso. So if a man be attainted and executed, 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 Ed. 3. 32. If a lease for years be made render21 Eliz. ing a rent, and the lessee make a feoff- So if tenant in tail discontinue for ment of part, and the lessor enter, the immediate | life rendering rent, and the issue brings 24 H. 8. fo. 4. cause is from the law in respect of the formedon, and the warranty of his ancestor with Dy. 21. R. forfeiture, though the entry be the act assets is pleaded against him, and the assets is of the party; but that is but the pursuance and layed to be no other but his reversion with the putting in execution of the title which the lawrent; this is no plea, because the formedon, which giveth and therefore the rent or condition shall be apportioned. 9 H. 7. 24. 3 et 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, 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 So if a man be attainted by two several attainpersons might have entered; and the law respect-ders, and there is error in them both, there is no eth 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. 169. 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 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. 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 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, But this rule, as all other which are very genewhich he may do, because a fine exe-ral, is but a sound in the air, and cometh in somecuted barreth no titles that accrue de puisne tems times to help and make up other reasons without after the fine levied, and so restore himself to his any great instruction or direction; except it be title of error upon the fine: but so it is not in the duly conceived in point of difference, where it former case of the attainder; for a writ of error to a taketh place, and where not. And first we will former attainder is not given away by a second, ex-examine it in grants, and then in pleadings. cept 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. But if a man levy a fine where he hath nothing in the land, which inureth by way of conclusion 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. And, therefore, if I. S. submit him- 2 R. 3. 18. only, and is executory against all purchases and self to abitrement of all actions and 21 H. 7. 29. 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. 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 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. But the former case standeth upon the particular 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 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 die, reserving 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 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 | 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. 44 Ed. 3. 19. But if I give land in tail tenendo de 2E4.4.5. capitalibus dominis per redditum viginti solidorum per fidelitatem: this limitation of tenure to the Otherwise had it been if the seigniory | lord is void; and it shall not be good, as in the had been by homage, fealty, and rent, other case, to make a reservation of twenty because of the dignity of the service, which could shillings good unto myself; but it shall be utterly not have passed by intendment by the grant of void, as if no reservation at all had been made: the rent but if I be seised of the and if the truth be that I, that am the donor, hold manor of Dale in fee, whereof I. S. of the lord paramount by ten shillings only, then holds by fealty and rent, and I grant the manor, there shall be ten shillings only reserved upon the excepting the rent, the fealty shall pass to the gift in tail as for ovelty. grantee, and I. S. shall have but a rent secke. 26 Ass. pl. 66. 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 Ed. 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. 21 Ed. 3. 49. 31 46. Plow. fo. 37. 35 H. 6. 34. So if I give land to I. S. and the heirs of his body, and for default of et 32 H. 8. Dyer 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 aptitudinem rei. Therefore, if a man grant to another, 14 Ass. pl. 21. 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. Lit. cap. cond. So it is a rule, Verba ita sunt intelligenda, ut res magis aleat, quam pereat: and therefore if I give land to I. S. and his heirs, reddendo quinque libras 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. 22 H. 6. 43. Now to examine this rule in pleadings as we have done in grants, you shall find that in all imperfections of pleadings, whether it be in ambiguity of words and double intendments, or want of certainty and averments, the plea shall be strictly and strongly against him that pleads. For ambiguity of words, if in a writ of entry upon a disseisin, the tenant pleads jointenancy with I. S. of the gift and feoffment of I. D. judgment de briefe, the demandant saith that So it is a rule, that the law will not long time before I. D. any thing had, the demandant intend a wrong, which the civilians himself was seised in fee quousque prædict' I. D. utter thus: Ea est accipienda interpretatio, quæ vitio super possessionem ejus intravit, and made a joint caret. And therefore if the executors of I. S. feoffment, whereupon he the demandant re-entergrant omnia bona et catalla sua, the goods which ed, and so was seised until by the defendant they have as executors will not pass, because | alone he was disseised; this is no plea, because non constat whether it may not be a devastation, the word intravit may be understood either of a and so a wrong; and yet against the trespasser lawful entry, or of a tortious; and the hardest that taketh them out of their hand, they shall de- against him shall be taken, which is, that it was clare quod bona sua cepit. a lawful entry; therefore he should have alleged precisely that I. D. disseisivit. 10 Ed. 4. 1. So it is a rule, words are 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 buy and sel! 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 nor 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. 3 H. 6. 20. 3 Ed. 6. So upon ambiguity that grows by reference, if an action of debt be brought Dy. 66. against I. N. and I. P. sheriffs of London, upon an escape, and the plaintiff doth declare upon an execution by force of a recovery in the prison of Ludgate sub custodia I. S. et I. D. then sheriffs in 1 K. H. VIII. and that he so continued sub custodia I. B. et I. G. in 2 K. H. VIII. and so continued sub custodia I. N. et I. L. in 3 K. H. VIII. and then was suffered to escape; I. N. and I. L. plead that before the escape, supposed at such a So it is a rule, Divinatio non inter-day anno superius in narratione specificato, the pretatio est, quæ omnino recedit a litera: said I. D. and I. S. ad tunc vicecomites suffered and therefore if I have a fee farm-rent issuing out him to escape; this is no good plea, because of white acre of ten shillings, and I reciting the there be three years specified in the declaration, same reservation do grant to I. S. the rent of five and it shall be hardest taken that it was 1 or 3 H. shillings percipiend' de reddit' prædict' et de omni- | VIII. when they were out of office; and yet it is bus terris et tenementis meis in Dale, with a clause nearly induced by the ad tunc vicecomites, which of distress, although there be atturnement, yet should leave the intendment to be of that year in nothing passeth out of my former rent; and yet which the declaration supposeth that they were that were strongest against me to have it a double sheriffs; but that sufficeth not, but the year must rent, or grant of part of that rent with an enlarge- be alleged in fact, for it may be it was mislaid by ment of a distress in the other land, but for that the plaintiff, and therefore the defendants meanit is against the words, because copulatio verborum ing to discharge themselves by a former escape, inclinat exceptionem in eodem sensu, and the word which was not in their time, must allege it prede, anglicè out of, may be taken in two senses, cisely. that is, either as a greater sum out of a less, or as a charge out of land, or other principal interest; and that the coupling of it with lands and tenements, viz., I reciting that I am seized of such a rent of ten shillings, do grant five shillings percipiend' de eodem reddit', it is good enough without atturnement; because percipiend' de, etc. may well be taken for parcella de, etc. without violence to the words; but if it had been percipiend' de, I. S. without saying de redditibus prædict', although 1. S. be the person that payeth me the foresaid rent of ten shillings, yet it is void; and so it is of all other rules of exposition of grants, when they meet in opposition with this rule, they are preferred. 26 H. S. For incertainty of intendment, if a warranty collateral be pleaded in bar, and the plaintiff by replication, to avoid warranty, saith, that he entered upon the possession of the defendant, non constat whether this entry was in the life of the ancestor, or after the warranty attached; and therefore it shall be taken in hardest sense, that it was after the warranty descended, if it be not otherwise averred. 38 H. 6. 18. 39 H. 6. 5. For impropriety of words, if a man plead that his ancestors died by protestation seised, and that I. S. abated, &c., this is no plea, for there can be no abatement except there be a dying seised alleged in fact; and an |