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THE MAXIMS OF THE LAW.
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
In jure non remota causa, sed proxima spectatur. the remote intent was for money.
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.
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, and not voluntary, in regard of the imprisonment. So if a parson make a lease, and be Cunt. 2.4.3. deprived, or resign, the successors 20. H. 9. 2. shall avoid the lease; and yet the cause of deprivation, and more strongly of a resignation, moved from the party himself; but the law regardeth not that, because the admission of the new incumbent is the act of the ordinary.
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.
5 H. 7. 25.
So if I covenant with I. S. a stranger, 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.
12 H. 4. 4 H. 8. Dy. f. 1.
So if I be bound to enter into a statute before the mayor of the staple at such a day, for the security of one hundred pounds, and the obligee, before the day, accept of me a lease of a house in satisfaction; this is no plea in debt upon my obligation: and yet the end of that statute was but security of money; but because the entering into this statute itself,
M. 40 et 41. El Julius Winningport per le tres SurCoke,lib.2.
tou's case, or re
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 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 able 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.
So if a man purchase land in fee-simple, and die without issue; in the first degree the law respecteth dignity of sex, and not proximity; and therefore the remote heir, on the part of the father, shall have it before the near heir on the part of the mother: but, in any degree paramount the first the law respecteth not, and therefore the near heir by the grandmother, on the part of the father, shall have it, before the remote heir of the grandfather on the part of the father.
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.
As if a feoffment be made of lands 37 R. Dacre's held by knight's service to I. S. case, obiter. 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 autres in case de Stoel.
9 H. 7. 24. 3 et
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 4 P.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 persons might have entered; and the law respecteth not the state of the person at the last time of the descent cast, but a continuance from the very disseised to the descent.
38 Ed. 3. 32.
So if tenant in tail discontinue for life rendering rent, and the issue brings formedon, and the warranty of his ancestor with assets is pleaded against him, and the assets is layed to be no other but his reversion with the rent; this is no plea, because the formedon, which 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 wero 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 if a man be attainted by two several attainders, and there is error in them both, there is no 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 shall be given till both pleas be discussed; and 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.
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.
But if a man levy a fine sur conusaunce de droit come cen 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 inclusive but he must begin with the error upon the recovery, which he may do, because a fine execated barreth no titles that accrue de puisne tems after the fine levied, and so restore himself to his title of error upon the fine: but so it is not in the former case of the attainder; for a writ of error to a former attainder is not given away by a second, except 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.
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 this rule, as all other 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 deducing or qualifying the exposition of such grants as were against the law, if they were taken according to their words.
2 R 3 18.
21 H. 7. 29.
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 himonly, and is executory against all purchases and self to abitrement of all actions and 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 collective of joint actions only, or distribu covery there is error; this fine is Janus bifrons, tivè of several actions also; but because the and will look forwards, and bar him of his writ | words shall be strongliest taken against I. S. that 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 Frz. 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.
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
But the former case standeth upon the particu- die, reserving three pounds; this shall be taken Jar 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. 29H. 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
84. 7. 8 H. 9.
lease for years, and I. S. sow the ground, and then I inake 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 32 621 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 1. 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 it 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 inyself, 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.
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 prædiclum 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 power of distress to I. S. the grantee, and his bailiffs.
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 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.
So if I give land to I. S. and the heirs of his body, and for default of 32 H. 8 Dyer such issue quod tenementum prædic- 35 H. 6.34. tum 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 villa. de Dale, and part of the ville is his several, and part is his waste and common; the grantee shall not have
10 Ed. 4. 1.
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 bona et catalla sua, the goods which they have as executors will not pass, because non constat whether it may not be a devastation, and so a wrong; and yet against the 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 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.
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 ambi guity of words and double intendments, ou 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 long time before I. D. any thing had, the demandant himself was seised in fee quousque prædict' I. D. super possessionem ejus intravit, and made a joint feoffment, whereupon he the demandant re-entered, and so was seised until by the defendant alone he was disseised; this is no plea, because the word intravit may be understood either of a lawful entry, or of a tortious; and the hardest against him shall be taken, which is, that it was a lawful entry; therefore he should have alleged precisely that I. D. disseisivit.
3 Ed. 6.
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 sheriff's; 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.
26 H. 8.
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