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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.
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.
1 But this rule, as all others 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 in reducing and 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 himself to arbitrement of all actions and suits between him and I. D. and I. N., it rests ambiguous whether this submission shall be intended collectivè of joint actions only, or distributivè 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 arbitrement of all actions and suits which he hath now depending, except it be such as are between him
1 Omitted in Camb. MS.
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.
1 So if I grant ten pounds rent to 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, reddendo 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 the 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 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 land, and let my land for life, not mentioning the warren; yet the lessee, by implication, shall have the warren discharged and extinct during his lease but if I 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 extinguished; but the lessee shall have warren against me in white acre.
So if I. S. hold of me by fealty and 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.
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.
The Camb. MS omits this, and proceeds to give one example of cases of implication: "So in implications; if I. S. grant all his woods in such a close, it implies a liberty unto the grantee to come upon the ground and cut them down: but if I. S. lease the close excepting the woods, then himself shall have no such liberty, because he did not specially reserve it." And it omits the cases in the five following paragraphs.
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 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 to leave it a 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 a rent in tail by reservation. So 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.
2 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.
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.
So if I grant a rent to I. S. and his heirs out of my manor of 46 E. 3. f. 18. 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.
But if I give land in tail tenendum de capitalibus dominis per 2 Ed. 4. f. 5. redditum viginti solidorum et fidelitatem: this limitation of tenure
1 Perhaps Webb v. Porter cited by Sir Matthew Hale in his notes on Co. Lit. 21 a. 2 All these remaining cases of grants against the law are omitted in the Camb. MS.
21 Ed. 3. f. 49.
to the lord is void; and it shall not be good, as in the other case, to make the 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 owelty.
So if I give land to I. S. and the heirs of his body, and for default of such issue quod tenementum prædictum revertatur ad I. N.; yet these words of reversion will carry a remainder to a stranger. But if I let white acre to I. S. excepting ten 35 H.6. f. 34. 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 rule which is 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, when they encounter and cross one another in any case, that 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 to a foreign intendment; which the civilians utter thus: Verba generalia restringuntur ad habilitatem persona, vel ad aptitudinem 14 Ass. pl. 21. rei. Therefore, if a man grant to another 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.
Litt. sec. 345.
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 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.
So it is a rule, that the law will not 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 10 Ed. 4. f. 1 bona et catalla sua, the goods which they have as executors will not pass, because non constat whether it may be a devastation, and so a wrong: and yet against a trespasser that taketh them out of their hand they shall declare quod bona sua cepit.
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 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 nor seven, &c. because that is strongest against me. But on the other side, it shall not be intended four parts of four parts, that is the whole, or four quarters; and yet that were strongest of all: but then the words were idle and of none effect.
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' 3 H. 6. 1. 20. de reddit' prædict' et de omnibus terris et tenementis meis in Dale, with clause of distress; although there be atturnment, 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 acceptionem in eodem sensu, and the word de (anglicè out of) may be taken in two senses, that is, either as a less sum out of a greater, or as a charge out of land or other principal interest; and that the coupling of it with lands and tenements doth define the sense to be one rent issuing out of another, and not as a less rent to be taken by way of computation out of a greater; therefore nothing passeth of that rent. But if it stood of itself, without these words "lands and tenements: " viz. I, reciting that I am seised of such a rent of ten shillings, do grant five shillings percipiend' de eodem reddiť it is good enough with atturnment; because percipiend' de etc. may well be taken for parcella de etc. without violence to the words. But if it had
The Camb. MS. here gives a different example: "So if I grant all the timber trees crescentes super terras meas in D., and I have lands in D. in fee simple and other lands for life, this grant shall be construed only to extend to the lands I have in fee simple and yet the other exposition were stronger against me. And so it is of all other rules of exposition of words," And here this Regula ends in the MS.