Imágenes de páginas
PDF
EPUB

THE MAXIMS OF THE LAW.

tou's case, or

reverendJugel

6 H. S Dy. fo. I. et 2.

Litt. cap. Dis

20. H.

which is the immediate act whereto I am bound, REGULA I.

is a corporal act which lieth not in satisfaction ;

therefore, the law taketh no consideration that In jure non remota causa, scd proxima spectatur. the remote intent was for money.

So if I make a feoffment in fee, upon M. 40 et 4!. E. Ir were infinite for the law to judge the causes condition that the feoffee shall enfeoff Joue Winning of causes, and their impulsions one of another; over, and the feoffee be disseised, and pore per le tres therefore, it contenteth itself with the immediate a descent cast, and then the feoffee e susCuke,ii. 2. cause, and judgeth of acts by that, without bind himself in a statute, which statute is dislooking to any further degree.

charged before the recovery of the land : this is As if an annuity be granted pro con- no breach of the condition, because the land was

silio impenso et impendendo, and the never aole to the statute, and the possibility grantee commit treason, whereby he is imprison that it should be liable upon the recovery the law ed, so that the grantor cannot have access unto doth not respect. him for his counsel ; yet, nevertheless, the annui. So if I enfeoff two, upon condition to enfeoff ty is not determined by this non-feasance ; yet it and one of them take a wise, the condition is not was the grantee's act and default to comunit the broken; and yet there is a remote possibility that treason, whereby the imprisonment grew : but the joint-tenant may die, and then the feme is the law looketh not so far, but excuseth him, entitled to dower. because the not giving counsel was compulsory, So if a man purchase land in fee-simple, and and not voluntary, in regard of the imprisonment. die without issue; in the first degree the law

So if a parson make a lease, and be respecteth dignity of sex, and not proximity; and CD: 21.1.3. deprived, or resign, the successors therefore the remote heir, on the part of the father,

shall avoid the lease; and yet the shall have it before the near heir on the part of cause of deprivation, and more strongly of a the mother: but, in any degree paramount the resignation, moved froin the party himself; but first the law respecteth not, and therefore the near the law regardeth not that, because the admis- heir by the grandmother, on the part of the father, sion of the new incumbent is the act of the shall have it, before the remote heir of the grandordinary.

father on the part of the father. So if I be seised of an advowson in gross, and This rule faileth in covinous acts, which, a usurpation be had against me, and at the next though they be conveyed through many degrees avoidance I usurp arere, I shall be remitted : and and reaches, yet the law taketh heed to the coryet the presentation, which is the act remote, is rupt beginning, and counteth all as one entire act. mine own act; but the admission of my clerk, As if a feoffinent be made of lands whereby the inheritance is reduced to me, is the held by knight's service to I. S. upon case, obiter. act of the ordinary.

condition that he, within a certain time, shall So if I covenant with I. S. a stran- enfeoff I. D. which feoffment to I. D. shall be to

ger, in consideration of natural love to the use of the wife of the first feoffer for her jointmy son, to stand seised of the use of the said I. S. ure, &c.; this feoffment is within the statute of to the intent he shall enfeoff my son; by this no 32 H. VIII. nam dolus circuitu non purgatur. use ariseth to I. S. because the law doth respect In like manner this rule holdeth not in crimithat there is no immediate consideration between nal acts, except they have a full interruption ; ine and I. S.

because when the intention is matter of substance. 12 . 4.4 R. &

So if I be bound to enter into a sta- and that which the law doth principally behold, Dy. 1.1.

tute before the mayor of the staple at there the first motive will be principally regarded, such a day, for the security of one hundred and not the last impulsion. As if I. S. pounds, and the obligee, before the day, accept of malice prepense discharge a pistol of me a lease of a house in satisfaction; this is at I. D. and miss him, whereupon he no plea in debt upon my obligation: and yet the throws down his pistol and flies, and I. D. pursueth end of that statute was but security of money ; him to kill him, whereupon he turneth and killeth but because the entering into this statute itself, I. D. with a dagger; if the law should consider

37 R. Dacre's

5 H. 7. 25.

Op. Caftelyn et autres in case de Stoel.

44 Ed. 3.

50 E. 3.

lit. cap. de disPent.

a

21 Eliz.

38 Ed. 3. 32

Dy. 21. R.

the last impulsive cause, it should say that it discontinuee pleadeth villanage; this is no plea, was in his own defence : but the law is otherwise, because the divesting of the manor, which is the for it is but a pursuance and execution of the first intent of the suit, doth include this plea, because murderous intent.

it determineth the villanage.
But if I. S. had fallen down, his So if a tenant in ancient demesne be

dagger drawn, and I. D. had fallen by disseised by the lord, whereby the haste upon his dagger, there I. D. had been felo seigniory is suspended, and the disseisee bring de se, and I. $. shall go quit.

his assize in the court of the lord, frank fee is no Also, you may not confound the act with the plea, because the suit is brought to undo the dis. execution of the act; nor the entire act with the seisin, and so to revive the seigniory in ancient last part, or the consummation of the act. demesne. For if a disseisor enter into religion, So if a 'man be attainted and exe

7 H 4. 39. 7H. the immediate cause is from the party, cuted, and the heir bring error upon the 6 4. though the descent be cast in law; but the law attainder, and corruption of blood by the same doth but execute the act which the party pro- attainder be pleaded, to interrupt his conveying cureth, and therefore the descent shall not bind, in the same writ of error; this is no plea, for then et sic è converso.

he were without remedy ever to reverse the If a lease for years be made render- attainder.

ing a rent, and the lessee make a feoff- So if tenant in tail discontinue for ment of part, and the lessor enter, the immediate life rendering rent, and the issue brings 21 H. 8. fo. 4. cause is from the law in respect of the formedon, and the warranty of his ancestor with

forfeiture, though the entry he the act assets is pleaded against him, and the assets is of the party; but that is but the pursuance and layed to be no other but his reversion with the putting in execution of the title which the law rent; this is no plea, because the formedon, which giveth: and therefore the rent or condition shall is brought to undo this discontinuance, doth be apportioned.

inclusively undo this new reversion in fee, with So, in the binding of a right by a descent, you the rent thereunto annexed. are to consider the whole time from the disseisin But whether this rule may take place where to the descent cast; and if, at all times, the per- the matter of the plea is not to be avoided in the son be not privileged, the descent binds. samc suit, but another suit, is doubtful; and I

And, therefore, if a feme covert be rather take the law to be, that this rule doth ex4P.et M. Dr.143. disseised, and the baron dieth, and she tend to such cases; for otherwise, the party wero taketh a new husband, and then the descent is at a mischief, in respect the exceptions and bars cast: or if a man that is not infra quatuor maria, might be pleaded cross, either of them, in the be disseised, and return into England, and go contrary suit; and so, the party altogether preover sea again, and then a descent is cast, this vented and intercepted to come by his right. descent bindeth, because of the interim when the So if a man be attainted by two several attainpersons might have entered ; and the law respect- ders, and there is error in them both, there is no

1 eth not the state of the person at the last time of reason but there should be a remedy open for the the descent cast, but a continuance from the very heir to reverse those attainders being erroneous, as disseised to the descent.

well if they be twenty as one. So if baron and feme be, and they And, therefore, if in a writ of error brought by Dy. 159.

join in a feoffment of the wife s land the heir of one of them, the attainder should be a rendering a rent, and the baron die, and the feme plea peremptorily; and so again, if in error take a new husband before any rent-day, and he brought of that other, the former should be a plea; accepteth the rent, the feoffment is affirmed for these were to exclude him utterly of his right;

and therefore it shall be a good replication to say, REGULA II.

that he hath a writ of error depending of that also,

and so the court shall proceed: but no judgment Non potest adduci exceptio ejusdem rei, cujus peti- shall be given till both pleas be discussed; and tur dissolutio

if either plea be found without error, there shall It were impertinent and contrary in itself, for be no reversal either of the one or of the other; the law to allow of a plea in bar of such matter as and if he discontinue either writ, than shall it be is to be defeated by the same suit; for it is in no longer a plea ; and so of several outlawries in cluded : otherwise a man should never come to a personal action. the end and effect of his suit, but be cut off in the And this seemeth to me more reasonable, than way.

that generally an outlawry or an attainder should And, therefore, if tenant in tail of a manor, be no plea in a writ of error brought upon a di. whereunto a villain is regardant, discontinue and 'verse outlawry or attainder, as 7 H. IV. and 7 H. die, and the right of the entail descend unto the VI. seem to hold; for that is a remedy too large villain himself, who brings formedɔn, and the for the mischief; for there is no reason but if any

9 H. 7. 24. 3 et

4 et 5 P. et M.

ever.

a

37 R.

2R 31

of the outlawries or attainders be indeed without much quiet and certainty, and that in two sorts ; error, but it should be a peremptory plea to the first, because it favoureth acts and conveyances person in a writ of error, as well as in any other executed, taking them still beneficially for the action.

grantees and possessors : and secondly, because it But if a man levy a fine sur conusaunce de droit makes an end of many questions and doubts about came cen que il ud de son done, and suffer a recove- construction of words; for if the labour were only ry of the same lands, and there be error in them to pick out the intention of the parties, every both, he cannot bring error first of the fine, be- judge would have a several sense; whereas this cause, by the recovery, his title of error is dis- rule doth give them a sway to take the law more charged and released in law inclusirè but he must certainly one way.

begin with the error upon the recovery, But this rule, as all other which are very gene

which he may do, because a fine exe- ral, is but a sound in the air, and cometh in somecited barreth no titles that accrue de puisne tems times to help and make up other reasons without after the fine levied, and so festore 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 ürmer 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, The force of this rule is in three things, in ambut only it remaineth a plea to bis person while biguity of words, in implication of matter, and le liveth, and to the conveyance of his heir after deducing or qualifying the exposition of sucii liis death.

grants as were against the law, if they were taken But if a man levy a fine where he hath nothing according to their words. in the land, which inureth by way of conclusion And, therefore, if I. S. submit him. only, and is executory against all purchases and self to abitrement of all actions and 21 H. 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 collective of joint actions only, or distribucovery 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 speaks them, it shall be understood of both: for will come to the reason of the first case of the if I. S. had submitted himself to abitrement of all attainder, that he must reply, that he hath a writ actions and suits which he hath now depending, also depending of the same fine, and so demand except it be such as are between him and I. D. judgment.

and I. N. now it shall be understood collective To return to our first purpose, like only of joint actions, because in the other case Fiz. age, 45. law is it if tenant in tail of two acres large construction was hardest against him that make two several discontinuances to several per- speaks, and in this case strict construction is sons for life rendering a rent, and bringeth a for- hardest. medon of both, and in formedun brought of white So if I grant ten pounds rent to 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 ; pounds by way of restraint and abatement of the and so neither shall be a bar: and yet there is no former rent of ten pounds, it shall be taken doubt but if in a formedon the warranty of tenant strongliest against me that am the grantor, that is in tail with assets be pleaded, it is no replication three pounds addition to the ten pounds: but if I for the issue to say, that a præcipe dependeth had let lands to baron and feme for three lives, brought by I. S. to evict the assets.

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.

contrary to the former case, to abridge my ren!

only to three pounds. REGULA III.

So if I demise omnes boscos meos in Verba forlius accipiuntur contra proferentem.

villa de Dale for years, this passeth the Dr. 19. This rule, that a man's deeds and his words soil; but if I demise all my lands in Dale ea..eptis shall be taken strongliest against himself, though boscis, this extendeth to the trees only, and not tv it be one of the most common grounds of the law, the soil. it is notwithstanding a rule drawn out of the So if I sow my land with corn, and let it for depth of reason; for, first, it is a schoolmaster of years, the corn passeth to the lessee, if I exceptii wisdom and diligence in making men watchful not; but if I make a lease for life to I. S. upon in their own business; next, it is the author of condition that upon request he shall make me a

Vol. III.-29

16 E. 3.

8 Ass. p. 10

a

a

14 H. 8.28 H. 8.

a

84. 7. 8 B. 9.

WH 8. Dy.30.6.

26 Ag. pl. 56.

acre.

29 Ass. pl. 10.

44 Ed. 3. 19.

26 Ass. pl. 66.

21

46. Plow. f37.

lease for years, and I. S. sow the ground, and then I So if I let white acre, black acre, and green inake request, I. S. may well make me a lease acre to I. S. excepting white acre, this exception excepting his corn, and not break the condition. is void, because it is repugnant; but if I let the

So if I have free warren in my own three acres aforesaid, rendering twenty shillings 120°6. 21. land, and let my land for life, not men- rent, viz. for white acre ten shillings, and for

tioning the warren, yet the lessee, by black acre ten shillings, I shall not distrain at all implication, shall have the warren discharged and in green acre, but that shall be discharged of my extract during his lease : but if I let the land una rent. cum libera warrena, excepting white acre, there So if I grant a rent to I. S. and his 1. 6. 22 the warren is not by implication reserved unto me heirs out of my manor of Dale, et obligo 46 E. 2. 18. either to be enjoyed or extinguished; but the manerium prædictum et omnia bona et catalla mea lessee shall have warren against me in white super manerium prædiclum existentia ad distrin

gendum per ballivos domini regis: this limitation So if I. S. hold of me by fealty and of the distress to the king's bailiffs is void, and it

rent only, and I grant the rent, not is good to give a power of distress to I. S. the speaking of the fealty; yet the fealty by implica- grantee, and his bailiffs. tion shall pass, because my grant shall be taken But if I give land in tail tenendo de ? Ed. 4. á strongly as of a rent service, and not of a rent capitalibus dominis per redditum viginti solidorum secke.

per fidelitatem: this limitation of tenure to the Otherwise had it been if the seigniory lord is void ; and it shall not be good, as in the

had been by homage, fealiy, and rent, other case, to make a reservation of twenty because of the dignity of the service, which could shillings good unto myself; but it shall be utterly not have passed by intendment by the grant of void, as if no reservation at all had been made:

the rent: but if I be seised of the and if the truth be that I, that am the donor, hold

manor of Dale in fee, whereof I. S. of the lord parainount by ten shillings only, then holds by fealty and rent, and I grant the inanor, there shall be ten shillings only reserved upon the excepting the rent, the fealty shall pass to the gift in tail as for ovelty. grantee, and I. S. shall have but a rent secke. So if I give land to I. S. and the Ed. 3. 49.31

So in grants against the law, if I give land to heirs of his body, and for default of EPS Der 1. S. and his heirs males, this is a good fee-simple, such issue quod tenementum prædic- 36 H. 6. 34. which is a larger estate than the words seem to tum revertatur ad I. N. yet these words of intend, and the word “males” is void. But if I reservation will carry a remainder to a stranger. inake a gift in tail, reserving rent to me and the But if I let white acre to I. S. excepting ten, heirs of my body, the words " of my body" are shillings rent, these words of exception to mine not void, and to leave it rent in fee-simple; but own benefit shall never inure to words of reserthe words “heirs and all" are void, and leave it vation. but a rent for life : except, that you will say, it is But now it is to be noted, that this rule is the but a limitation to any my heir in fee-simple last to be resorted to, and is never to be relied which shall be heir of my body; for it cannot be upon but where all other rules of exposition of rent in tail by reservation.

words fail; and if any other rule come in place, But if I give land with my daughter this giveth place. And that is a point worthy to

in frank marriage, the remainder to I. be observed generally in the rules of the law, that S. and his heirs, this grant cannot be good in all when they encounter and cross one another in parts, according to the words : for it is incident to any case, it be understood which the law holdeth the nature of a gift in frank marriage, that the wortbier, and to be preferred ; and it is in this donee hold of the donor; and therefore my deed particular very notable to consider, that this being shall be taken so strongly against myself, that a rule of some strictness and rigour, doth not, as rather than the remainder shall be void, the frank it were, his office, but in absence of other rules marriage, though it be first placed in the deed, which are of more equity and humanity; which shall be void as a frank marriage.

rules you shall find afterwards set down with But it I give land in frank marriage, reserving their expositions and limitations. 10 me and my heirs ten pounds rent, now the But now to give a taste of them to this present frank marriage stands good, and the reservation purposé : it is a rule, that general words shall is void, because it is a limitation of a benefit to never be stretched too far in intendment, which inyself, and not to a stranger.

the civilians utter thus: Verba generalia restrin.

guntur ad habilitatem personæ, vel ad aptitudi* Quære car le ley sémble déi le contrary en tant que in un

nem rei. Brant quant lun part del fait ne poit estoier oue lauter le darr : Therefore, if a man grant to another, 14 Axs. pl. 21. Berra void, auterment in un devise et accordant fuit lopin : de common intra metas et bundas villæ. de Dale, and Kur Anderson et Owen Just: contra Walmesley Just. P. 40. Filiz. in le case de Comtesse de Warwick et sur Barkley in part of the ville is his several, and part is his com. banco.

waste and common; the grantee shall not have

45 E4. 3. 290. 24 R.

a

Lil cap. cond.

22 H. 6. 43.

3 Ed. 6.

common in the several; and yet that is the Now to examine this rule in pleadings as we strongest exposition against the grantor. have done in grants, you shall find that in all im

So it is a rule, Verba ita sunt intelli- perfections of pleadings, whether it be in ambi.

genda, ut res magis aleat, quam pereat : guity of words and double intendments, ou want and therefore if I give land to I. S. and his heirs, of certainty and averinents, the plea shall be reddendo quinque libras annuatim to I. D. and his strictly and strongly against him that pleads. heirs, this implies a condition to me that am the For ambiguity of words, if in a writof grantor; yet it were a stronger exposition against entry upon a disseisin, the tenant pleads me, to say the limitation should be void, and the jointenancy with I. S. of the gift and feofsment of feoffinent absolute.

I. D. judgment de brirfe, the demandant saith that So it is a rule, that the law will not long time before I. D. any thing had, the demandant 10 EL 4.1.

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 intravil 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 So it is a rule, words are to be understood that precisely that I. D. disseisivit. they work somewhat, and be not idle and frivo- So upon ambiguity that grows by lous: Verba aliquid operari debent, verba cum effec- reference, if an action of debt be brought by. 6. iu sunt accipienda. And, therefore, if I buy and against I. N. and I. P. sheriffs of London, upon sel! you four parts of my manor of Dale, and say an escape, and the plaintiff doth declare upon an not in how many parts to be divided, this shall execution by force of a recovery in the prison of be construed four parts of five, and not of six nor Ludgate sub custodia I. S. et I. D. then sheriffs in seven, &c., because that it is the strongest against 1 K. H. VIII. and that he so continued sub cusme; but on the other side, it shall not be intend-todia I. B. et I. G. in 2 K. H. VIII. and so coned four parts of four parts, that is whole of four tinued sub custodia I. N. et I. L. in 3 K. H. VIII. quarters; and yet that were strongest of all, but and then was suffered to escape; I. N. and I. L. then the words were idle and of none effect. plead that before the escape, supposed at such a

So it is a rule, Divinatio non inter- day anno superius in narratione specificato, the зн. 6, 20.

pretatio est, quæ omnino recedit a litera: said I. D. and I. S. ad tunc vicecomites suffered and therefore if I have a fee farm-rent issuing out him to escape; this is no good plea, because of white acre of ten shillings, and I reciting the there be three years specified in the declaration, same reservation do grant to I. S. the rent of five and it shall be hardest taken that it was 1 or 3 H. shillings percipiend' de reddit prædict et de omni- VIII. when they were out of office; and yet it is bus terris et lene mentis meis in Dale, with a clause nearly induced by the ad tunc vicecomites, which of distress, although there be atturnement, yet should leave the intendment to be of that year in nothing passeth out of my former rent; and yet which the declaration supposeth that they were that were strongest against me to have it a double sheriffs; but that sufficeth not, but the year must rent, or grant of part of that rent with an enlarge- be alleged in fact, for it may be it was mislaid by ment of a distress in the other land, but for that the plaintiff, and therefore the defendants meanit is against the words, because copulatio verborum ing to discharge themselves by a former escape, inclinat exceptivnem in eodem sensu, and the word which was not in their time, must allege it prede, anglicè out of, may be taken in two senses, cisely. that is, either as a greater sum out of a less, or as For incertainty of intendment, if a a charge out of land, or other principal interest; warranty collateral be pleaded in bar, and that the coupling of it with lands and tene- and the plaintiff by replication, to avoid warranty, ments, viz., I reciting that I am seized of such a saith, that he entered upon the possession of the rent of ten shillings, do grant five shillings perci- defendant, non constat whether this entry was in piend' de endem reddiť, it is good enough without the life of the ancestor, or after the warranty atatturnement; because percipiend' de, etc. may well tached; and therefore it shall be taken in hardest be taken for parcella de, etc. without violence to sense, that it was after the warranty descended, the words; but if it had been percipiend' de, I. S. if it be not otherwise averred. without saying de redditibus prædicť, although For impropriety of words, if a man 1. S. be the person that payeth me the foresaid plead that his ancestors died by prorent of ten shillings, yet it is void ; and so it is of testation seised, and that I. S. abated, &c., this is all other rules of exposition of grants, when they no plea, for there can be no abatement except ineetin opposition with this rule, they are preferred. there be a dying seised alleged in fact; anil an

a

26 H. &

39 H. 6. 19. 39 H. 6. 5.

« AnteriorContinuar »