« AnteriorContinuar »
41 Ed. 3. 6. et 19.
So if I grant to I. S. an annuity of ten pounds a year pro consilio impenso et impendendo, if I S. be a physician, it shall be understood of his counsel in physic; and if he be a lawyer, of his counsel in law.
So if I do let a tenement to I. S. near by my dwelling-house in a borough, provided that he shall not erect or use any shop in the same without my license, and afterwards I license him to erect a shop, and I. S. is then a miller, he shall not, by virtue of these general words, erect a joiner's shop.
26 E. 337. Dy.
16 Eliz. 337. Dyer.
So the statute of chantries, that willeth all lands to be forfeited, given or employed to a superstitious use, shall not be construed of the glebe lands of parsonages: nay farther, if the lands be given to the parson of D. to say a mass in his church of D. this is out of the statute, because it shall be intended but as augmentation of his glebe; but otherwise it had been, if it had been to say a mass in any other church than his own.
So in the statute of wrecks, that willeth that goods wrecked where any live domestical creature remains in the vessel, shall be preserved and kept to the use of the owner that shall make his claim by the space of one year, doth not extend to fresh victuals or the like, which is impossible to keep without perishing or destroying it; for in these and the like cases general words may be taken, as was said, to a rare foreign intent, but never to an unreasonable intent.
36 H. 6. 57,58.
Jura sanguinis nullo jure civili dirimi possunt. THEY be the very words of the civil law, which cannot be amended, to explain this rule, hæres est nomen juris, Filius est nomen naturæ: therefore corruption of blood taketh away the privity of the one, that is, of the heir, but not of other, that is, of the son; therefore if a 21 Ed. 3. 17. man be attainted and be murdered by a stranger, the eldest son shall not have appeal, because the appeal is given to the heir, for the youngest sons who are equal in blood shall not have it; but if an attainted person be killed by his son, this is petty treason, for that the privity of a son remaineth: for I admit the law to be, that if the son kill his father or
p. 293. Fitz mother it is petty treason, and that there remaineth so much in our laws
add, because some have sought to weaken the law in that point.
So if land descend to the eldest son of a person attainted from his ancestor of the mother held in knight's service, the guardian shall F. N. Br. fo. enter, and oust the father, because the 143. De Droit. law giveth the father that prerogative in respect he is his son and heir; for of a daughter or a special heir in tail he shall not have it but if the son be attainted, and the father covenant in consideration of natural love to stand seised of land to his use, this is good enough to raise a use, because the privity of a natural affection remaineth. So if a man be attainted and have charter of pardon, and be returned of a jury between his son and I. S. the challenge remaineth; so may he maintain any suit of his son, notwithstanding the blood be corrupted.
26 E. 337. Dy.
So by the statute of 21 H. VIII. the ordinary ought to commit the administration of his goods that was attainted and purchase his charter of pardon, to his children, though born before the pardon, for it is no question of inheritance for if one brother of the half blood die, the 5 Ed. 6. Adm. administration ought to be committed 47. to his other brother of the half blood, if there be no nearer by the father.
So if the uncle by the mother be at- 33 H. 65. tainted, and pardoned, and land descend from the father to the son within age held in socage, the uncle shall be guardian in socage; for that savoureth so little of the privity of heir, as the possibility to inherit shutteth not.
5 Ed. 4. 50.
But if a feme tenant in tail assent to the ravisher, and have no issue, and her cousin is attainted, and pardoned, and purchaseth the reversion, he shall not enter for a forfeiture. For though the law giveth it not in point of inheritance, but only as a perquisite to any of the blood, so he be next in estate; yet the recompense is understood for the stain of his blood, which cannot be considered when it is once wholly corrupted before.
So if a villain be attainted, yet the lord shall have the issues of his villain born before or after the attainder; for the lord hath them jure naturæ but as the increase of a flock.
Query, Whether if the eldest son be F. N. Br. 82. G. attainted and pardoned, the lord shall Register, fol.87. have aid of his tenants to make him a knight, and it seemeth he shall; for the words of the writ hath filium primogenitum, and not filium et hæredem, and the like writ hath pur file marrier who is no heir.
of the ancient footsteps of potestas patriæ and Receditur à placitis juris, potius quàm injuriæ et
natural obedience, which by the law of God is the very instance itself; and all other government
delicta maneant impunita.
THE law hath many grounds and positive and obedience is taken but by equity, which I learnings, which are not of the maxims and con
appeal of murder goeth not to the heir 159 Ed 1. M. where the party murdered hath a wife, lib. 2. fol. 60. nor to the younger brother where there is an elder; yet if the wife murder her husband, because she is the party offendor, the appeal leaps
clusions of reason; but yet are learnings received | So it is a ground of the law, that the Fitz. Corone, with the law, set down, and will not have called in question; these may be rather called placita juris than regulæ juris; with such maxims the law will dispense, rather than crimes and wrongs should be unpunished, quia salus populi suprema lex; and salus populi is contained in the repress-over to the heir; and so if the son and heir muring offences by punishment.
Fitz. N. B. 30.
Therefore if an advowson be granted to two, and the heirs of one of them, and a usurpation be had, they both shall join in a writ of right of advowson; and yet it is a ground in law, that a writ of right lieth of no less estate than of a fee-simple: but because the tenant for life hath no other several action in the law given him, and also that the jointure is not broken, and so the tenant in fee-simple cannot bring his writ of right alone; therefore rather than he shall be deprived wholly of remedy, and this wrong unpunished, he shall join his companion with him, notwithstanding the feebleness of his estate.
46 Ed. 3. 21.
But if lands be given to two, and to the heirs of one of them, and they lease in a præcipe by default, now they shall not join in a writ of right, because the tenant for life hath a several action, namely, a Quod ei deforciat, in which respect the jointure is broken.
27 H. S. 13.
der his father, it goeth to the second brother.'
But if the rule be one of the higher sort of maxims that are regulæ rationales, and not positivæ, then the law will rather endure a particular offence to escape without punishment, than violate such a rule.
Ed. 3. 31.
As it is a rule that penal statutes Cap. 12. Stamf. shall not be taken by equity, and the 2. fol. 125. statute of 1 Ed. VI. enacts that those that are attainted for stealing of horses shall not have their clergy, the judges conceived, that this did not extend to him that stole but one horse, and therefore procured a new act for it, 2 Ed. VI. cap. 33. And they had reason for it, as I take the law; for it is not like the Litt. cap. 46. case upon the statute of Glocest. that gives an action of waste agaiast him that holds pro termino vitæ vel annorum. It is true, if a man hold but for a year he is within the statute; for it is to be noted, that penal statutes are taken strictly and literally only in the point of defining and ̧ setting down the fact and the punishment, and in those clauses that do concern them; and not generally in words that are but circumstances and conveyance in the putting of the case: and so see the diversity; for if the law be, that for such an offence a man shall lose his right hand, and the offender hath had his right hand before cut off in the wars, he shall not lose his left hand, but the crime shall rather pass without the punishment So if two coparceners be, and they which the law assigned, than the letter of the law 22 H. 6. 24. lease the land, and one of them die, and shall be extended; but if the statute of 1 Ed. VI. hath issue, and the lessee commit waste, the aunt had been, that he that should steal a horse should and the issue shall join in punishing this waste, | be ousted of his clergy, then there had been no and the issue shall recover the moiety of the place wasted, and the aunt the other moiety and the entire damages; and yet actio injuriarum moritur cum persona, but in favorabilibus magis attenditur quod prodest, quàm quod nocet.
So if tenant for life and his lessor join in a lease for years, and the lessee commit waste, they shall join in punishing this waste, and locus vastatus shall go to the tenant for life, and the damages to him in reversion; and yet an action of waste lieth not for tenant for life; but because he in the reversion cannot have it alone, because of the mean estate for life, therefore rather than the waste shall be unpunished, they shall join.
45 Ed. 3. 3.
20 Ed. 2.
Fitz. F. de
question at all, but if a man had stolen more horses than one, but that he had been within the statute, quia omne majus continet in se minus.
So if a man recovers by erroneous judgment, and hath issue two daugh- Non accipi debent verba in demonstrationem falsam
ters, and one of them is attainted, the writ of error shall be brought against the parceners notwithstanding the privity fail in the
quæ competunt in limitationem veram. THOUGH falsity of addition or demonstration doth not hurt where you give the thing the proper name, yet nevertheless if it stand doubtful upon the words, whether they import a false reference and demonstration, or whether they be words of restraint that limit the generality of the former name, the law will never intend error or falsehood. And, therefore, if the parish of Hurst 12 Eliz. 21. do extend into the counties of Wiltshire and Berkshire, and I grant my close called Callis, situate and lying in the parish of Hurst in the county of Wiltshire
ver 291. 376 Dy. 56.
23 Eliz. Dv.
and the truth is, that the whole close lieth in the county of Berkshire; yet the law is, that it passeth well enough, because there is a certainty sufficient in that I have given it a proper name which the false reference doth not destroy, and not upon the reason that these words, "in the county of Wiltshire," shall be taken to go to the parish only, and so to be true in some sort, and not to the close, and so to be false: for if I had granted omnes terras meas in parochia de Hurst in com. Wiltshire, and I had no lands in Wiltshire but in Berkshire, nothing had past.
9 Ed. 4. 7.
But in the principal case, if the close 21 Ed. 3. 18. called Callis had extended part into Wiltshire and part in Berkshire, then only that part had passed which lay in Wiltshire. So if I grant omnes et singulas terras meas in tenura I. D. quas perquisivi de I. N. in indentura dimissionis fact' I. B. specificat. If I have land wherein some of these references are true, and the rest false, and no land wherein they are all true, nothing passeth: as if I have land in the tenure of I. D. and purchased of I. N. but not specified in the indenture to I. B. or if I have land which I have purchased of I. N. and specified in the indenture of demise to I. B. and not in the tenure of I. D.
But if I have some land wherein all these demonstrations are true, and some wherein part of them are true and part false, then shall they be intended words of true limitation to pass only those lands wherein all those circumstances are true.
Licet dispositio de interesse futuro sit inutilis, tamen potest fieri declaratio præcedens quæ sortiatur effectum interveniente novo actu.
THE law doth not allow of grants except there be a foundation of an interest in the grantor; for the law that will not accept of grants of titles, or of things in action which are imperfect interests, much less will it allow a man to grant or encumber that which is no interest at all, but merely future.
But of declarations precedent before any interest vested the law doth allow, but with this difference, so that there be some new act or conveyance to give life and vigour to the declaration precedent.
Now the best rule of distinction between grants and declarations is, that grants are never countermandable, not in respect of the nature of the conveyance or instrument, though sometime in respect of the interest granted they are, whereas declarations evermore are countermandable in their natures.
And therefore if I grant unto you, 20 Eliz that if you enter into an obligation to 19 H. 6. 62. me of one hundred pounds, and after do procure
me such a lease, that then the same obligation shall be void, and you enter into such an obligation unto me, and afterwards do procure such a lease, yet the obligation is simple, because the defeisance was made of that which was not
So if I grant unto you a rent charge 27 Ed. 3. out of white acre, and that it shall be lawful for you to distrain in all my other lands whereof I am now seised, and which I shall hereafter purchase; although this be but a liberty of distress, and no rent, save only out of white acre, yet as to the lands afterwards to be purchased the clause is void.
So if a reversion be granted to I. S. 99 Ed. 3. 6. and I. D. a stranger by his deed do 24 Eliz grant to I. S. that if he purchase the particular estate, he will atturne to the grant, this is a void atturnment, notwithstanding he doth afterwards purchase the particular estate.
13, 14 Eliz.
M. 38. et 39 Eliz.
But of declarations the law is contrary; as if the disseisee make a char- 20, 21 Eliz ter of feoffment to I. S. and a letter of attorney to enter and make livery and seisin, and deliver the deed of feoffment, and afterwards livery and seisin is made accordingly, this is a good feofïment; and yet he had no other thing than a right at the time of the delivery of the charter; but because a deed of feoffment is but matter of declaration and evidence, and there is a new act which is the livery subsequent, therefore it is good in law. So if a man make a feofïment to I. S. upon condition to enfeoff I. N. within certain days, and there are deeds made both of the first feoffment and the second, and letters of attorney accordingly, and both those deeds of feoffment and letters of attorney are delivered at a time, so that the second deed of feoffment and letters of attorney are delivered when the first feoffee had nothing in the land; and yet if both liveries be made accordingly, all is good.
So if I devise the manor of D. by Rigden's case. special name, of which at that time I am not seised, and after I purchase it, except I make some new publication of my will, this devise is void; and the reason is, because that my death, which is the consummation of my will, is the act of God, and not my act, and therefore no such act as the law requireth.
But if I grant unto I. S. authority by my deed to demise for years the land whereof I am now seised, or hereafter shall be seised; and after I purchase the lands, and I. S. my attorney doth demise them: this is a good demise, because the demise of my attorney is a new act, and all one with a demise by myself.
But if I mortgage land, and after covenant with I. S. in consideration of money which I receive of him, that after I have entered for the condition broken, I will stand seised to the use of the same I. S. and I enter, and this deed is enrolled, and all within the six months, yet nothing passeth away, because this enrolment is no new act, but a perfective ceremony of the first deed of bargain and sale; and the law is more strong in that case, because of the vehement relation which the enrolment hath to the time of the bargain and sale, at what time he had nothing but a naked condition.
So if two joint tenants be, and one 6 Ed. 6. Br. of them bargain and sell the whole land, and before the enrolment his companion dieth, nothing passeth of the moiety accrued unto him by survivor.
10 H. 7. 19
16 El. Dy. 337.
16 El. Dy. 337.
to I. S. to deliver livery and seisin in 15, 16. the capital messuage, and he doth it in another place of the land; or between the hours of two and three, and he doth it after or before; or if I make a charter of feoffinent to I. D. and I. B. and express the seisin to be delivered to I. D. and my attorney de- Dy. 283 liver it to I. B. in all these cases the Dy. act of the attorney, as to execute the estate, is void; but if I say generally to I. D. whom I mean only to enfeoff, and my attorney make it to his attorney, it shall be intended, for it is a livery to him in law.
38 H. 8. 08.
But on the other side, if a man com- 18 El. Sander's
In criminalibus sufficit generalis malitia intentionis mand I. S. to rob I. D. on Shooters- case, com. 175.
cum facto paris gradus.
ALL crimes have their conception in a corrupt intent, and have their consummation and issuing in some particular fact; which though it be not the fact at which the intention of the malefactor levelled, yet the law giveth him no advantage of that error, if another particular ensue of as high a
Sander's case. com. 474.
Therefore if an impoisoned apple be laid in a place to poison I. S. and I. D. cometh by chance and eateth it, this is murder in the principal that is actor, and yet the malice in individuo was not against I. D.
So if a thief find the door open, and Cr. J. Peace, 30. come in by night and rob a house, and be taken with the manner, and break a door to escape, this is burglary; yet the breaking of the door was without any felonious intent, but it is one entire act.
So if a caliver be discharged with a murderous .ntent at I. S. and the piece break and strike into the eye of him that dischargeth it, and killeth him, he is felo de se, and yet his Intention was not to hurt himself; for felonia de
hill, and he doth it on Gad's-hill; or to rob him such a day, and he doth it not himself but procureth I. B. to do it; or to kill him by poison, and he doth it by violence; in all these cases, notwithstanding the fact be not executed, yet he is accessory nevertheless.
But if it be to kill I. S. and he killeth Ibidem. I. D. mistaking him for I. S. then the acts are distant in substance, and he is not accessory.
And be it that the facts be of differing degrees, and yet of a kind.
As if a man bid I. S. to pilfer away such things out of a house, and precisely restrain him to do it sometimes when he is gotten in without breaking of the house, and yet he breaketh the house; yet he is accessory to the burglary; for a man cannot condition with an unlawful act, but he must at his peril take heed how he putteth himself into another man's hands.
8 H. 4. 3.
So if one of the prothonotaries of the Common Pleas bring an assize of his office, and allege fees belonging to the same office 1 Mar. Dy. 89, in certainty, and issue is taken upon 5 Mar. Dy. 163. these fees, this issue shall be tried by the judges by way of examination, and if they determine it for the plaintiff, and he have judgment to recover arrearages accordingly, the defendant can bring no writ of error of this judgment, though the fees in truth be other.
21 Ass. 24. 7 H. 6. 37.
And it seemeth in the case of maim, and some other cases, that the court may dismiss themselves of discussing the matter by examination, and put it to a jury, and then the party grieved shall have his attaint; and therefore it seemeth that the court that doth deprive a man of his action, should be subject to an action; but that notwithstanding the law will not have, as was said in the beginning, the judges called in question in the point of their office when they undertake to discuss the issue, and that is the true reason for to say that the reason of these cases should be, because trial by the court should be peremptory as trial by certi- 1.4.41. ficate, (as by the bishop in case of bastardy, or by the marshal of the king, &c.) the cases are nothing alike; for the reason of those cases of certificate is, because if the court should not give credit to the certificate, but should re-examine it, they have no other mean but to write again to the same lord bishop, or the same lord marshal, which were frivolous, because it is not to be presumed they would differ from their former certificate; whereas in these other cases of error the matter is drawn before a superior court, to re-examine the errors of an inferior court: and therefore the true reason, as was said, that to examine again that which the court had tried were in substance to attaint the court.
And therefore this is a certain rule in error, that error in law is ever of such matters as were not crossed by the record; as to allege the death of the tenant at the time of the judgment given, nothing appeareth upon record to the contrary. So when the infant levies a fine, it appeareth not upon the record that he is an infant, therefore it is an error in fact, and shall be tried by inspection during nonage.
F. N. Br. 21.
2 R. 3.20.
But if a writ of error be brought in the King's Bench of a fine levied by an infant, and the court by inspection and examination doth affirm the fine, the infant, though it be during his infancy, shall never bring a writ of error in the Parliament upon this judgment; not but that error lies after error, but because it doth now appear upon the record that he is now of full therefore it can be no error in fact. And therefore if a man will assign for error that fact, that whereas the judges gave 9 Ed. 4. 3. judgment for him, the clerks entered it in the roll against him, this error shall not be allowed; and yet it doth not touch the judges but the clerks: but the reason is, if it be an error, it is an error in fact; and you shall never allege an error in fact contrary to the record.
F. N. Br. 21.
Persona conjuncta æquiparatur interesse proprio THE law hath that respect of nature and conjunction of blood, as in divers cases it compareth