Imágenes de páginas

money; he may likewise retain against his companion, if he have notice thereof. But if there be an overplus of goods, Dy. f. 187. above the value of that he hath disbursed, then ought he by his claim to determine which goods he doth elect to have in value; or else before such election if his companion do sell all the goods, he hath no remedy but in the spiritual court: for to say he should be tenant in common with himself and his companion pro rata of that he doth lay out, the law doth reject that course for intricateness.

7. in fine.]

So if I. S. have a lease for years worth twenty pounds by [29 H. 8. pl. the year, and grant unto I. D. a rent of ten pounds a year, and after make him his executor; now I. D. shall be charged with assets ten pounds only, and the other ten pounds shall be allowed and considered to him: and the reason is, because the not refusing shall be accounted no laches to him, because an executorship is pium officium, and matter of conscience and trust, and not like a purchase to a man's own use.

Plow. f. 185.

Like law is, where the debtor makes the debtee his executor; 12 H. 4. f. 21. the debt shall be considered in the assets, notwithstanding it be a thing in action.

So if I have a rent charge, and grant it upon condition; Plow. f. 133b. now, though the condition be broken, the grantee's estate is not defeated till I have made my claim: but if after any such grant my father purchase the land, and it descend to me; now, if the condition be broken, the rent ceaseth without claim. But if I had purchased the land myself, then I had extincted mine own condition, because I had disabled myself to make my claim. And yet a condition collateral is not sus- [35 H 6.] pended by taking back estate; as if I make a feoffment in fee, upon condition that I. S. shall marry my daughter, and take a lease for life from my feoffee; if the feoffee break the condition I may claim to hold in by my fee-simple: but the case of the charge is otherwise; for if I have a rent charge issuing out of twenty acres, and grant that rent over upon condition, and purchase but one acre, the whole condition is extinct, and the possibility of the rent by the condition as fully destroyed as if the rent had been in me in esse.

Grant 91.

So if the King grant to me the wardship of the heir of I. S. Fitz. Tit. when it falleth; because an action of covenant lieth not against the King, I shall have the thing itself in interest. But if I let

1 The rest of this paragraph is omitted in the Camb. MS.

[blocks in formation]
[graphic][merged small][merged small][merged small]

land to I. S. rendering a rent, with condition of re-entry, and I. S. be attainted, whereby the lease comes to the King; now my demand upon the land is gone which should give me benefit of re-entry, and yet I shall not have it reduced without demand: and the reason of difference is, because my condition in this case is not taken away in right, but only suspended by the privilege of the person: for if the King grant the lease over, the condition is revived as it was.

So if my tenant for life grant his estate to the King; now if I will grant my reversion over, the King is not compellable to atturn; therefore it shall pass by grant by deed without


So if my tenant for life be, and I grant my reversion pur autre vie, and the grantee die living cestui que vie; now the privity between tenant for life and me is not restored, and I have no tenant in esse to atturn; therefore I may pass my reversion without atturnment.

So if I have a nomination to a church, and another hath the presentation, and the presentation comes to the King; now because the King cannot be attendant, my nomination is turned to an absolute patronage.

So if a man be seised of an advowson, and take a wife, and after title of dower given he join in impropriating the church, and dieth; now because the feme cannot have the third turn because of the perpetual incumbency, she shall have all the turns during her life: for it shall not be disimpropriated to the benefit of the heir contrary to the grant of tenant in feesimple.

But if a man grant the third presentment to I. S. and his heirs, and impropriate the advowson; now the grantee is without remedy, for he took his grant subject to that mischief at the first and, therefore it was his laches, and therefore not like the case of the dower. And this grant of the third avoidance is not like tertia pars advocationis, or medietas advocationis, upon a tenancy in common of the advowson: for if two tenants in common be, and an usurpation be had against them, and the usurper do impropriate, and one of the tenants in common do release, and the other bring his writ of right de medietate advocationis, and recover; now I take the law to be that, because tenants in common ought to join in presentments,

1 This explanation is omitted in Camb. MS.: as is the whole of the next case.

which cannot now be, he shall have the whole patronage. For neither can there be an apportionment, that he should present all the turns and his incumbent but to have a moiety of the profits, nor yet the act of impropriation shall not be defeated: but as, if two tenants in common be of a ward, and they join 45 Ed. 3. f. 10. in a writ of right of ward, and one release, the other shall recover the entire ward, because it cannot be divided; so shall it be in the other case, though it be of inheritance, and though he bring his action alone.

Also if a disseisor be disseised, and the first disseisee release to the second disseisor upon condition, and a descent be cast, and the condition broken; now the mesne disseisor, whose right is revived, shall enter notwithstanding this descent, because his right was taken away by the act of a stranger.

But if I. S. devise land by the statute of 32 H. VIII. and the heir of the devisor enters and makes a feoffment in fee, and feoffee dieth seised; this descent bindeth, and there shall not be a perpetual liberty of entry upon the reason that he never had seisin whereupon he might ground his action; but he is at a mischief by his own laches. And the like law of the Queen's patentee: for I see no reasonable difference between them and him in the remainder, which is Littleton's


But note, that the law by operation and matter in fact will never countervail and supply a title grounded upon a matter of record; and therefore if I be entitled unto a writ of error, and the land descend unto me, I shall never be remitted; no more shall I be unto an attaint, except I may also have a writ of right.

pl. 2.

So if upon my avowry for services my tenant disclaim, Dy. f. 5. pl. 1. where I may have a writ of right as upon disclaimer; if the

land after descend to me, I shall never be remitted.

In the Camb. MS. these cases of the devisee and patentee are introduced at the end of the Rule, with the introductory observation: "Note also, if it be not citra culpam suam, but that there be laches in the party, then the law useth no such indulgence to him." As to the point, see Co. Litt. 240 b., and Butler's note.

[graphic][merged small][merged small][merged small][merged small][merged small][merged small]


Verba generalia restringuntur ad habilitatem rei vel persona.

It is a rule that the King's grants shall not be taken or construed to a special intent; it is not so with the grants of a common person, for they shall be extended as well to a foreign intent as to a common intent; yet with this exception, that they shall never be taken to an impertinent or a repugnant intent: for all words, whether they be in deeds or statutes or otherwise, if they be general and not express and precise, shall be restrained unto the fitness of the matter and the person.

As if I grant common in omnibus terris meis in D. and I have in D. both open grounds and several; it shall not be stretched to common in my several, much less in my garden or orchard.

So if I grant to a man omnes arbores meas crescentes supra terras meas in D. he shall not have apple-trees nor other fruittrees growing in my gardens or orchards, if there be any other trees upon my grounds.

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 milliner; he shall not, by virtue of these general words, erect a joiner's shop.

So the statute of chantries, that willeth all lands to be forfeited that were given or employed to a superstitious use, shall not be construed of the glebe lands of parsonages: nay farther, if lands be given to the parson and his successors 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 had it been, if it had been to say a mass in another church than his


So 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

1 Omitted in Camb, MS.

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 or foreign intent, but never to an unreasonable intent.


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 man be attainted and be murdered by a stranger 35 H. 6. f. 57, 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. For1

£. 245.

I admit the law to be that if the son kill his father or mother it Lamb. Jus. is petty treason, and that there remaineth in our laws so much of the ancient footsteps of potestas patria and natural obedience; which by the law of God is the very instance itself, and all other government and obedience is taken but by equity: which I 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 an ancestor of the mother held in knight's service, the guardian shall enter, and oust the father; because the law giveth the father that prerogative in respect he is his son and heir; for of F. N. Br. fo. a daughter or a special heir in tail he shall not have it: but if 147. L. O. R. 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 an use; because the privity of 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.

This paragraph is not in Camb. MS.

« AnteriorContinuar »