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4 M. 133. pl. 6 Dyer.
mother make a feoffment in fee to the use of himself and his heirs, this use, though expressed, shall not go to him and the heirs of the part of his father as a new purchase, no more than it should have done if it had been a feoffment in fee nakedly without consideration, for the intendment is remote. But if baron and feme be, and they join in a fine of the feme's land, and express a use to the husband and wife and their heirs: this limitation shall give a joint estate by intierties to them both, because the intendment of law would have conveyed the use to the feme alone. And thus much touching foreign intendments.
5 Ed. 4. 8. 19 H. & 11.
This rule faileth where that the law saith as much as the party, but upon foreign matter not pregnant and appearing upon the same act and conveyance, as if lessee for life be, and he lets for twenty years, if he live so long; this limitation (if he live so long) is no more than the law saith, but it doth not appear upon the same conveyance or act, that this limitation is nugatory, but it is foreign matter in respect of the truth of the state whence the lease is derived: and, therefore, if lessee for life make a feoffment in fee, yet the state of the lease for years is not enlarged against the feoffee; otherwise per Keble. had it been if such limitation had not Fitz. pl. 95. been, but that it had been left only to the law.
16 H. 7. 4.
24 Ed. 3. 28.
For matter ex post facto, if a lease for life be made to two, and the survivor of them, and they So if tenant after possibility make a lease for after make partition: now these words (and the years, and the donor confirms to the lessee to survivor of them) should seem to carry purpose hold without impeachment of waste during the life as a limitation, that either of them should be of tenant in tail, this is no more than the law saith; stated of his part for both their lives severally; but the privilege of tenant after possibility is fo30 Ass 8. Filz but yet the law at the first construethreign matter, as to the lease and confirmation: and the words but words of dilating to describe a joint estate; and if one of them die after partition, there shall be no occupant, but his part shall revert.
31 H. 8. 46. Pl. 7. Dy.
therefore if tenant after possibility do surrender, yet the lessee shall hold dispunishable of waste; otherwise had it been if no such confirination at all had been made.
So if a man grant a rent charge out of ten acres, and grant further that the whole rent shall issue out of every acre, and distress accordingly, and afterwards the grantee purchase an acre; now this clause should seem to be material to uphold the rent; but yet nevertheless the law at first accepteth of these words but as words of explana-in law and warranty in deed are not the tion, and then notwithstanding the whole rent is same thing, but may both stand to- Zouch. 259. extinct.
Also heed must be given that it be indeed the same thing which the law intendeth, and which the party expresseth, and not like or resembling, and such as may stand both together for if I let land for life rendering a rent, and by my deed warrant the same land, this warranty 20 Ed. 2.
So if a gift in tail be made of lands Pl. 52. held in knight's service with an express reservation of the same service, whereby the land is held over, and the gift is with warranty, and the land is evicted, and other land recovered in value against the donor, held in socage, now the tenure which the law makes between the donor and donee shall be in socage, and not in knight's service, because the first reservation was according to the owelty of service, which was no more
than the law would have reserved.
But if a gift in tail had been made of lands held in socage with a reservation of knight's service tenure, and with warranty, then, because the intendment of law is altered, the new land shall be held by the same service the last land was, without any regard at all to the tenure paramount: and thus much of matter ex post facto.
21 Ed. 1.
There remaineth yet a great question on this rule.
A principal reason whereupon this rule is built, should seem to be, because such acts or clauses are thought to be but declaratory, and added upon ignorance and ex consuetudine clericorum, upon observing of a common form, and not upon purpose or meaning, and therefore whether by particular and precise words a man may not control the intendment of the law.
To this I answer, that no precise or express words will control this intendment of law; but as the general words are void, because they say contrary to that the law saith; so are they which are thought to be against the law: and therefore if I demise my land being knight's service tenure to my heir, and express my intention to be, that the one part should descend to him as the third appointed by statute, and the other he shall take by devise to his own use; yet this is void: for the law saith, he is in by descent of the whole. and I say he shall be in by devise, which is against the law.
But if I make a gift in tail, and say upon condition, that if tenant in tail Lit. pl. 364 discontinue and after die without issue, it shall be lawful for me to enter; this is a good clause
to make a condition, because it is but in one case, and doth not cross the law generally for if the tenant in tail in that case be disseised, and a descent cast, and die without issue, I that am the donor shall not enter.
But if the clause had been provided, that if tenant in tail discontinue, or suffer a descent, or do any other fact whatsoever, that after his death without issue it shall be lawful for me to enter: now this is a void condition, for it importeth a repugnancy to law; as if I would over-rule that where the law saith I am put to my action, I nevertheless will reserve to myself an entry.
Non videtur consensum retinuisse si quis ex præ
scripto minantis aliquid immutavit. ALTHOUGH choice and election be a badge of consent, yet if the first ground of the act be duresse, the law will not construe that the duresse doth determine, if the party duressed do make any motion or offer.
Therefore if a party menace me, except I make unto him a bond of forty pounds, and I tell him that I will not do it, but I will make unto him a bond of twenty pounds, the law shall not expound this bond to be voluntary, but shall rather make construction that my mind and courage is not to enter into the greater bond for any menace, and yet that I enter by compulsion notwithstanding into the lesser.
But if I will draw any consideration to myself, as if I had said, I will enter into your bond of forty pounds, if you will deliver me that piece of plate, now the duresse is discharged; and yet if it had been moved from the duressor, who had said at the first, You shall take this piece of plate, and make me a bond of forty pounds, now the gift of the plate had been good, and yet the bond shall be avoided by duresse.
Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tollitur.
THERE be two sorts of ambiguities of words, the one is ambiguitas patens, and the other latens. Paten is that which appears to be ambiguous upon the deed or instrument; latens is that which seemeth certain and without ambiguity, for any thing that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity.
Ambiguitas patens is never holpen by averment, and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law; for that were to make all deeds hollow, and subject to averments,
and so in effect, that to pass without deed, which the law appointeth shall not pass but by deed.
Therefore if a man give land to I. D. et I. S. et hæredibus, and do not limit to whether of their heirs, it shall not be supplied by averment to whether of them the intention was the inheritance should be limited.
So if a man give land in tail, though it be by will, the remainder in tail, and add a proviso in this manner: Provided that if he, or they, or any of them do any, &c. according to the usual clauses of perpetuities, it cannot be averred upon the ambiguities of the reference of this clause, that the intent of the devisor was, that the restraint should go only to him in the remainder, and the heirs of his body; and that the tenant in tail in possession was meant to be at large.
Of these infinite cases might be put, for it holdeth generally that all ambiguity of words by matter within the deed, and not out of the deed, shall be holpen by construction, or in some case by election, but never by averment, but rather shall make the deed void for uncertainty.
But if it be ambiguitas latens, then otherwise it is: as if I grant my manor of S. to I. F. and his heirs, here appeareth no ambiguity at all; but if the truth be, that I have the manors both of South S. and North S. this ambiguity is matter in fact, and therefore shall be holpen by averment, whether of them was that the party intended should pass.
So if I set forth my land by quantity, then it shall be supplied by election, and not averment. As if I grant ten acres of wood in sale, where I have a hundred acres, whether I say it in my deed or no, that I grant out of my hundred acres, yet here shall be an election in the grantee, which ten he will take.
And the reason is plain, for the presumption of the law is, where the thing is only nominated by quantity, that the parties had indifferent intentions which should be taken, and there being no cause to help the uncertainty by intention, it shall be holpen by election.
But in the former case the difference holdeth, where it is expressed and where not; for if I recite, Whereas I am seised of the manor of North S. and South S. I lease unto you uram manerium de S. there it is clearly an election. So if I recite, Where I have two tenements in St. Dunstan's, I lease unto you unum tenementum, there it is an election, not averment of intention, except the intent were of an election, which may be specially averred.
Another sort of ambiguitas latens is correlative unto these: for this ambiguity spoken of before, is when one name and appellation doth denominate divers things, and the second, when the same thing is called by divers names.
As if I give lands to Christ-Church in Oxford, and the name of the corporation is Ecclesia Christi
in Universitate Oxford, this shall be holpen by averment, because there appears no ambiguity in the words: for this variance is matter in fact, but the averment shall not be of intention, because it doth stand with the words.
For in the case of equivocation the general intent includes both the special, and therefore stands with the words: but so it is not in variance, and therefore the averment must be of matter, that do endure quantity, and not intention.
As to say, of the precinct of Oxford, and of the University of Oxford, is one and the same, and not to say that the intention of the parties was, that the grant should be to Christ-Church in that University of Oxford.
Licita bene miscentur, formula nisi juris obstet. THE law giveth that favour to lawful acts, that although they be executed by several authorities, yet the whole act is good.
As when tenant for life is the remainder in fee, and they join in a livery by deed or without, this is one good entire livery drawn from them both, and doth not inure to a surrender of a particular estate, if it be without deed or confirmation of those in the remainder, if it be by deed; but they are all parties to the livery.
So if tenant for life the remainder in fee be, and they join in granting a rent, this is one solid rent out of both their estates, and no double rent, or rent by confirmation.
So if tenant in tail be at this day, and he make a lease for three lives, and his own, this is a good lease, and warranted by the statute of 32 H. VIII. and yet it is good in part by the authority which tenant in tail hath by the common law, that is for his own life, and in part by the authority which he hath by the statute, that is, for the other three lives.
So if a man, seised of lands deviseable by custom, and of other land held in knight's service, and devise all his lands, this is a good devise of all the land customary by the common law, and of two parts of the other land by the statutes.
So in the Star Chamber a sentence may be good, grounded in part upon the authority given the court by the statute of 3 H. VII. and in part upon that ancient authority which the court hath by the common law, and so upon several commissions.
But if there be any form which the law appointeth to be observed, which cannot agree with the diversities of authorities, then this rule faileth.
Semble cleerement le ley d'estre contrary in ambideux cases, car lou est sans fait est livery solement de cestui in le rem' et surr' de partic' ten' auterment serra forfeiture de son
estate, et lou est per fait, le livery passa solement de tenant, car il ad le frank tenement, vide accordant. Sn". Co. lib. 1.76.
As if three coparceners be, and one of them alien her purparty, the feoffee and one of the sisters cannot join in a writ de part' facien- vide 1 Instit. da, because it behoveth the feoffee to 16.b. mention the statute in his writ.
Præsentia corporis tollit errorem nominis, et veritas nominis tollit errorem demonstrationis. THERE be three degrees of certainty. 1. Presence.
3. Demonstration or reference.
Whereof the presence the law holdeth of greatest dignity, the name in the second degree, and the demonstration or reference in the lowest, and always the error or falsity in the less worthy.
And therefore if I give a horse to I. D. being present, and say unto him, I. S. take this, this is a good gift, notwithstanding I call him by a wrong name: but so had it not been if I had delivered him to a stranger to the use of I. S. where I meant I. D.
So if I say unto I. S. Here I give you my ring with the ruby, and deliver it with my hand, and the ring bear a diamond and no ruby, this is a good gift notwithstanding I name it amiss.
So had it been if by word or writing, without the delivery of the thing itself, I had given the ring with the ruby, although I had no such, but only one with a diamond, which I meant, yet it would have passed.
So if I by deed grant unto you, by general words, all the lands that the king hath passed unto me by letters patents, dated 10 May, unto this present indenture annexed, and the patent annexed have date 10 July, yet if it be proved that that was the true patent annexed, the presence of the patent maketh the error of the date recited not material; yet if no patent had been annexed, and there had been also no other certainty given, but the reference of the patent, the date whereof was misrecited, although I had no other patent ever of the king, yet nothing would have passed.
Like law is it, but more doubtful, where there is not a presence, but a kind of representation, which is less worthy than a presence, and yet more worthy than a name or reference.
As if I covenant with my ward, that I will tender unto him no other marriage than the gentlewoman whose picture I delivered him, and that picture hath about it ætatis suæ anno 16, and the gentlewoman is seventeen years old; yet nevertheless, if it can be proved that the picture was made for that gentlewoman, I may notwithstanding this mistaking, tender her well enough.
So if I grant you for life a way over my land.
b 77. a. Com. Plow. 59. A. 140. 2 H. 5. 7. 13 H. 7. 14. 13 Ed. according to a plot intended between us, and
4. 4. a. 27 H. 8. 13. M. 16. et 17. El. Dy. 339.
after I grant unto you and your heirs a way ac
cording to the first plot intended, whereof a table | parcel is especially named, the falsity of the addition hurteth not, and yet this addition is found in name, but (as it was said) it was less worthy than a proper name.
is annexed to these presents, and there be some special variance between the table and the original plot, yet this representation shall be certainty sufficient to lead unto the first plot; and you shall have the way in fee nevertheless, according to the first plot, and not according to the table.
So if I grant unto you by general words the land which the king hath granted me by his let ters patents, quarum tenor sequitur in hæc verba, &c. and there be some mistaking in the recital and variance from the original patent, although it be in a point material, yet the representation of this whole patent shall be as the annexing of the true patent, and the grant shall not be void by this variance.
Now for the second part of this rule, touching the name and the reference, for the explaining thereof, it must be noted what things sound in demonstration or addition: as first in lands, the greatest certainty is, where the land hath a name proper, as, the manor of Dale, Granfield, &c. the next is equal to that, when the land is set forth by bounds and abuttals, as a close of pasture bounding on the east part upon Emsden Wood, on the south upon, &c. It is also a sufficient name to lay the general boundary, that is, some place of larger precinct, if there be no other land to pass in the same precinct, as all my lands in Dale, my tenement in St. Dunstan's parish, &c.
A farther sort of denomination is to name land by the attendancy they have to other lands more notorious, as parcel of my manor of D. belonging to such a college lying upon Thames' Bank.
All these things are notes found in denomination of lands, because they be signs to call, and therefore of property to signify and name a place: but these notes that sound only in demonstration and addition, are such as are but transitory and accidental to the nature of the place.
As modo in tenura et occupatione of the proprietary, tenure or possessor is but a thing transitory in respect of land; Generatio venit, generatio migrat, terra autem manet in æternum.
So if I grant tenementum meum, or omnia tenementa mea, (for the universal and indefinite to this purpose are all one) in parochia Sancti butolphi extra Aldgate (where the verity is extra Bishopsgate) in tenura Guilielmi, which is true, yet this grant is void, because that which sounds in denomination is false, which is the more worthy; and that which sounds in addition is true, which is the less; and though in tenura Guilielmi, which is true, had been first placed, yet it had been all one.
But if I grant tenementum meum quod vide ib, que perquisivi de R. C. in Dale, where the forest truth was T. C. and I have no other aux le primer tenements in D. but one, this grant is fu good, because that which soundeth in name (namely, in Dale) is true, and that which sounded in addition (viz. quod perquisivi, &c.) is only false.
So if I grant prata mea in Sale continentia 10 acras, and they contain indeed 20 acres, the whole twenty pass.
So if I grant all my lands, being parcels manerii de D. in prædictis literis patentibus specifica?”, and there be no letters patents, yet the grant is good enough.
The like reason holds in demonstrations of persons, that have been declared in demonstration of lands and places, the proper name of every one is in certainty worthiest: next are such appellations as are fixed to his person, or at least of continuance, as, son of such a man, wife of such a husband; or addition of office, as, clerk of such a court, &c.: and the third are actions or accidents, which sound no way in appellation or name, but only in circumstance, which are less worthy, although they may have a poor particular reference to the intention of the grant.
And therefore if an obligation be made to I. S. filio et hæredi G. S. where indeed he is a bastard,
So likewise matter of conveyance, title, or yet this obligation is good. instrument.
As, quæ perquisivi de I. D. quæ descendebant à 1. N. patre meo, or, in prædicta indentura dismissionis, or, in prædictis literis patentibus specificat.
So likewise, continent' per æstimationem 20 acras, or if (per æstimationem) be left out, all is one, for it is understood, and this matter of measure, although it seem local, yet it is indeed but opinion and observation of men.
So if I grant land Episcopo nunc Londinensi qui me erudivit in pueritia, this is a good grant, although he never instructed me.
But è converso, if I grant land to I. S. filio et hæredi G. S. and it be true that he is son and heir unto G. S. but his name is Thomas, this is a void grant.
Or if in the former grant it was the Bishop of Canterbury who taught me in my childhood, yet
The distinction being made, the rule is to be shall it be good (as was said) to the Bishop of examined by it.
Therefore if I grant my close called Dale, in the parish of Hurst, in the county of Southampion, and the parish likewise extendeth into the county of Berkshire, and the whole close of Dale loth in the county of Berkshire; yet because the
London, and not to the Bishop of Canterbury. The same rule holdeth of denomination of times, which are such a day of the month, such a day
*Semble icy le grant ust este assets bon, come fuit resolu per Cur', Co. lib. 3. fol. 10. a vide 33 H. 8. Dy. 50. b. 12 EL
ib. 292. b. et Co. lib. 2. fo. 33. a.
of the week, such a Saint's day or eve, to-day, distinction of name and addition, but the notes to-morrow; these are names of times. fall out to be of equal dignity all of name or addition.
But the day that I was born, the day that I was married; these are but circumstances and addition of times.
And therefore if I bind myself to do soine personal attendance upon you upon Innocents' day, being the day of your birth, and you were not born that day, yet shall I attend.
There resteth two questions of difficulty yet upon this rule: first, Of such things whereof men take not so much note as that they shall fail of this distinction of name and addition.
As, my box of ivory lying in my study sealed ap with my seal of arms; my suit of arras with the story of the nativity and passion: of such things there can be no name but all is of description, and of circumstance, and of these I hold the law to be, that precise truth of all recited circunstances is not required.
But in such things ex multitudine signorum colligitur identitas vera, therefore though my box were sealed, and although the arras had the story of the nativity, and not of the passion, if I had no other box, nor no other suit, the gifts are good; and there is certainty sufficient, for the law doth not expect a precise description of such things as have no certain denomination.
As prata mea juxta communem fossam in D. whereof the one is true, the other false; or tenementum meum in tenura Guilielmi quod perquisivi de R. C. in prædict' indent' specificat', whereof one is true, and two are false; or two are true, and one false.
So ad curiam quam tenebat die Mercurii tertio die Martii, whereof the one is true, the other false.
In these cases the former rule, ex multitudine signorum, &c. holdeth not; neither is the placing of the falsity or verity first or last material, but all must be true, or else the grant is void; Vide livers always understood, that if you can re- avant dit pur concile all the words, and make no falsity, that is quite out of this rule, which hath place only where there is a direct contrariety or falsity not to be reconciled to this rule.
As if I grant all my land in D. in tenura I. S. which I purchased of I. N. specified in a devise to I. D. and I have land in D. whereof in part of them all these circumstances are true, but I have other lands in D. wherein some of them fail, this grant will not pass all my land in D. for there these are references, and no words of falsity
Secondly, Of such things as do admit the or error, but of limitation and restraint.
USE OF THE LAW,
PRESERVATION OF OUR PERSONS, GOODS, AND GOOD NAMES.
ACCORDING TO THE
PRACTICE OF THE LAWS AND CUSTOMS OF THIS LAND.
The use of the law, and where
THE use of the law consisteth prinit pricipally cipally in these three things: I. To secure men's persons from
Action of the
der, battery, &c.
If any man beat, wound, or maim another, or give false scandalous words case, for slan that may touch his credit, the law death and violence. giveth thereupon an action of the case, for the II. To dispose the property of their goods and slander of his good name; and an action of batlands. tery, or an appeal of maim, by which recompense III. For preservation of their good names from shall be recovered, to the value of the hurt shame and infamy. damage, or danger.
Surety to keep the peace.
For safety of persons, the law provideth that any man standing in fear of another, may take his oath before a justice of peace, that he standeth in fear of his life, and the Justice shall compel the other to be bound with sureties to keep the peace.
next of kin.
If any man kill another with malice, Appeal of mu the law giveth an appeal to the wife der gen to the of the dead, if he had any, or to the next of kin that is heir in default of a wife, by which appeal the defendant convicted is to suffer death, and to lose all his lands and goods. But if the