Imágenes de páginas

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.

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.

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 him- 2 R. 3. IS. only, and is executory against all purchases and self to abitrement of all actions and 21 11. 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.

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.

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 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; 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.

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.


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 tor life to I. S. upon condition that upon request he shall make me


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 532 H. 6. 21. land, and let my land for life, not men25 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


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.

26 Ass. pl. 66.

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 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 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.

[blocks in formation]

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, rendering 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.

26 Ass. pl. 66.

So if I grant a rent to I. S. and his 4 H. 6. 22. heirs out of my manor of Dale, et obligo 46 E. 3. 18. 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.

But if I give land in tail tenendo de 2 Ed. 4. 5. 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.

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 aptitudi

nem rei.

Therefore, if a man grant to another, 14 Ass. pl. 21. common intra metas et bundas villa 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 feoffinent 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 feoffinent 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. I.

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.

So it is a rule, Divinatio non interpretatio est, quæ omnino recedit a litera: and therefore if I have a fee farm-rent issuing out of white acre of ten shillings, and I reciting the same reservation do grant to I. S. the rent of five shillings percipiend' de reddit' prædict' et de omnibus terris et tenementis meis in Dale, with a clause of distress, although there be atturnement, yet nothing passeth out of my former rent; and yet that were strongest against me to have it a double rent, or grant of part of that rent with an enlargement of a distress in the other land, but for that it is against the words, because copulatio verborum inclinat exceptionem in eodem sensu, and the word de, anglicè out of, may be taken in two senses, 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 I. 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.

3 Ed. 6.

Dy. 66.

So upon ambiguity that grows by reference, if an action of debt be brought 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 day anno superius in narratione specificato, the said I. D. and I. S. ad tunc vicecomites suffered him to escape; this is no good plea, because there be three years specified in the declaration. and it shall be hardest taken that it was 1 or 3 H. VIII. when they were out of office; and yet it is nearly induced by the ad tunc vicecomites, which should leave the intendment to be of that year in which the declaration supposeth that they were sheriffs; but that sufficeth not, but the year must be alleged in fact, for it may be it was mislaid by the plaintiff, and therefore the defendants meaning to discharge themselves by a former escape, which was not in their time, must allege it precisely.

[blocks in formation]

abatement shall not be improperly taken for dis- makes against the defendant, and it is to be scissin in pleading, car parols sont pleas. brought in on the plaintiff's side, and that without traverse.

9 R. Dy. fo. 256.

For repugnancy, if a man in avowry declare that he was seised in his demesne as of fee of white acre, and being so seised did demise the same white acre to I. S. habendum the moiety for twenty-one years from the date of the deed, the other moiety from the surrender, expiration, or determination of the estate of I. D. qui tenet prædict' medietatem ad terminum vitæ suæ reddend' 40s. rent: this declaration is insufficient, because the seisin that he hath alleged in himself in his demesne as of fee in the whole, and the state for life of a moiety, are repugnant; and it shall not be cured by taking the last, which is expressed to control the former, which is but general and formal; but the plea is naught, and yet the matter in law had been good to have entitled to have distrained for the whole rent.

But the same restraint follows this rule in pleading that was before noted in grants: for if the case be such as falleth within another rule of pleadings, then this rule may not be urged.

9. Ed. 4. 4 Ed. 6. Plow,

And therefore it is a rule that a bar is good to a common intent, though not to every intent. As if a debt be brought against five executors, and three of them make default, and two appear and plead in bar a recovery had against them two of three hundred pounds, and nothing in their hands over and above that sum: if this bar should be taken strongliest against them, it should be intended that they might have abated the first suit, because the other three were not named, and so the recovery not duly had against them; but because of this other rule the bar is good: for that the more common intent will say, that they two did only administer, and so the action well considered; rather than to imagine, that they would have lost the benefit and advantage of abating the writ. So there is another rule, that in pleading a man shall not disclose that which is against himself: and therefore if it be a matter that is to be set forth on the other side, then the plea shall not be taken in the hardest sense, but in the most beneficial, and to be left unto the contrary party to allege.

28 H. 8. Dy. fo. 17.

And, therefore, if a man be bound in an obligation, that if the feme of the obligee do decease before the feast of St. John the Baptist, which shall be in the year of our Lord God 1598, without issue of her body by her husband lawfully begotten then living, that then the bond shall be void; and in debt brought upon this obligation the defendant pleads that the feme died before the said feast without issue of her body then living: if this plea should be taken strongliest against the defendant, then should it be taken that the feme had issue at the time of her death, but this issue died before the feast; but that shall not be so understood, because it

30 E. 3.

So if in a detinue brought by a feme against the executors of her husband for her reasonable part of the goods of her husband, and her demand is of a moiety, and she declares upon the custom of the realm, by which the feme is to have a moiety, if there be no issue between her and her husband, and the third part if there be issue had, and declareth that her husband died without issue had between them; if this count should be hardliest construed against the party, it should be intended that her husband had issue by another wife, though not by her, in which case the feme is but to have the third part likewise; but that shall not be so intended, because it is a matter of reply to be showed of the other side.

And so it is of all other rules of pleadings, these being sufficient not only for the exact expounding of these other rules, but obiter to show how this rule which we handle is put by when it meets with any other rule.

As for acts of Parliament, verdicts, judgments, &c. which are not words of parties, in them this rule hath no place at all, neither in devises and wills, upon several reasons; but more especially it is to be noted, that in evidence it hath no place, which yet seems to have some affinity with pleadings, especially when demurrer is joined upon the evidence.

13. 14 R. P. 412

And, therefore, if land be given by will by H. C. to his son I. C. and the heirs males of his body begotten; the remainder to F. C. and the heirs males of his body begotten. the remainder to the heirs males of the body of the devisor: the remainder to his daughter S. C. and the heirs of her body, with a clause of perpetuity; and the question comes upon the point of forfeiture in an assize taken by default, and evidence is given, and demurrer upon evidence, and in the evidence given to maintain the entry of the daughter upon a forfeiture, it is not set forth nor averred that the devisor had no other issue male, yet the evidence is good enough, and it shall be so intended; and the reason thereof cannot be, because a jury may take knowledge of matters not within the evidence; and the court contrariwise cannot take knowledge of any matter not within the pleas; for it is clear that if the evidence had been altogether remote, and not proving the issue, there although the jury might find it, yet a demurrer might well be taken upon the evidence.

But if I take the reason of difference to be between pleadings, which are but openings of the case, and evidences which are the proofs of an issue; for pleadings being but to open the verity of the matter in fact indifferently on both parts have no scope and conclusion to direct the construction and intendment of them, and therefore

must be certain; but in evidence and proofs the issue, which is the state of the question and conclusion, shall incline and apply all the proofs as tending to that conclusion.

wise entitle himself, except that he aver that in such grounds my beasts have gone and fed; and if I never put in any, but occupy my grounds otherwise, he is without remedy; but if I put in, Another reason is, that pleadings must be cer- and after by poverty or otherwise desist, yet the tain, because the adverse party may know whereto commoner may continue; contrariwise, if the to answer, or else he were at a mischief, which words of the grant had been quandocunque averia mischief is remedied by a demurrer; but in evi-mea ierint, for there it depends continually upon dence if it be short, impertinent, or uncertain, the adverse party is at no mischief, because it is to be thought that the jury will pass against him; yet, nevertheless, because the jury is not compellable to supply the defect of evidence out of their own knowledge, though it be in their liberty so to do; therefore the law alloweth a demurrer upon evidence also.


Quod sub certa forma concessum vel reservatum est non trahitur ad valorem vel compensationem. THE law permitteth every man to part with his own interest, and to qualify his own grant, as it pleaseth himself; and, therefore, doth not admit any allowance or recompense, if the thing be not taken as it is granted.

17 H. 6. 10.

So in all profits a prendre, if I grant common for ten beasts, or ten loads of wood out of my coppice, or ten loads of hay out of my meads, to be taken for three years; he shall not have common for thirty beasts, or thirty loads of wood or hay, the third year, if he forbear for the space of two years; here the time is certain and precise.

So if the place be limited, or if I grant estovers to be spent in such a house, or stone towards the reparation of such a castle; although the grantee do burn of his fuel and repair of his own charge, yet he can demand no allowance for that he took it not.

So if the kind be specified, as if I let my park reserving to myself all the deer and sufficient pasture for them, if I do decay the game, whereby there is no deer, I shall not have quantity of pasture answerable to the feed of so many deer as were upon the ground when I let it; but am without any remedy, except I will replenish the ground again with deer.

But it may be thought that the reason of these cases is the default and laches of the grantor, which is not so.

For put the case that the house where the estovers should be spent be overthrown by the act of God, as by tempest, or burnt by the enemies of the king, yet there is no recompense to be made.

And in the strongest case, where it is in default of the grantor, yet he shall make void his own grant rather than the certain form of it should be wrested to an equity or valuation.

[blocks in formation]

the putting in of my beasts, or at least the general seasons when I put them in, not upon every hour or moment.

But if I grant tertiam advocationem to I. S. if he neglect to take his turn ea vice, he is without remedy: but if my wife be before entitled to dower, and I die, then my heir shall have two presentments, and my wife the third, and my grantee shall have the fourth; and it doth not impugn this rule at all, because the grant shall receive that construction at the first that it was intended such an avoidance as may be taken and enjoyed; as if I grant proximam advocationem to I. D. and then grant proximam advocationem to I. S. this shall be intended the next to the next, which I may lawfully grant or dispose. Quære.

29 II. 8. Dy. 38.

But if I grant proximam advocationem to I. S. and I. N. is incumbent, and I grant by precise words, illam advocationem, quam post mortem, resignationem translationem vel deprivationem I. N. immediate fore contigerit; now this grant is merely void, because I had granted that before, and it cannot be taken against the words.


Necessitas inducit privilegium quoad jura privata.

THE law chargeth no man with default where the act is compulsory and not voluntary, and where there is not a consent and election; and, therefore, if either there be an impossibility for a man to do otherwise, or so great a perturbation of the judgment and reason as in presumption of law man's nature cannot overcome, such 4 E1. 6. cond. necessity carrieth a privilege in itself. 9.6.

Necessity is of three sorts, necessity of conservation of life, necessity of obedience, and necessity of the act of God, or a stranger.


First, for conservation of life: if a man steal viands to satisfy his present hunger, this is no felony nor larceny.

So if divers be in danger of drowning by the casting away of some boat or bark, and one of them get to some plank, or on the boat's side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned; this is neither se defendendo nor by misadventure, but justifiable.

[blocks in formation]
« AnteriorContinuar »