A treatise of the principal grounds and maximes of the lawes of this nation very usefull and commodious for all students and such others as desire the knowledge and understandings of the laws / written by that most excellent and learned expositor of the law, W.N.

CHAP. I. The Laws of England are threefold; Common Laws, Customes, and Statutes.

THE COMMON LAW.

THE Common Law is grounded on the Rules of reason, and there∣fore we use to say in Argument, That reason will that such a thing be done, or that reason will not that such a thing be done; The rules of reason are of two sorts, some taken from Learning▪ as well Divine as Humane, and some proper to itself onely.

OF THEOLOGIE.

1. Summa ratio est, quae pro Religione facit.

ATenure to finde a Preacher, if the Lord purchase parcell of the Land▪ yet the whole service remaineth, because it is for the advancement of RELIGION.

2. Dies Dominicus non est Juridicus.

Sale on a Sunday shall not be said Sale in a Market, to alter the property of the Goods.

OF GRAMMBR.

OF Grammer, the rules are infinite in the Etymologie of a Word, and in the construction thereof; what is nature, is single.

3. Ad proxium antecedens fiat relatio, nisi impediatur Sententia.

As an inditement against I. S. servant to I. D. in the County of Middlesex▪ Butcher, &c. is not good; for servant is no Addition, and Butcher shall be referred to I. D. which is the next Antecedent.

OF LOGICK.

4. Cessante causa, cessat effectus.

THe Executor, nor the husband, after the death of a woman Guardian in soccage, shall not have the Wardship, because (viz.) the natural affection is removed which was the cause thereof.

Some things shall be construed according to the original cause thereof.

5.

The Executor may release before the pro∣bate of the Will, because his title and interest is by the Will, and not by the probate.

To make a man swear to bring me money upon pain of killing, and he bringeth it ac∣cordingly, it is felony.

Outlawry in Trespass, is no forfeiture of Land, as outlawry in felony is; for although the non-appearance is the cause of the Out∣lawry in both, yet the force of the Outlawry shall be esteemed according to the heynous∣ness of the offence, which is the principal cause of the Process.

6. According to the beginning thereof:

As if a Servant, which is out of his Masters service, kill his Master, through the malice which he bare him when he was his servant, this is petty Treason.

7. According to the end thereof;

As if a man warned to answer a matter in a Writ, there he shall not answer to any other matter then is contained in the Writ; for that ••as the end of his coming.

8. Derivativa potestas non potest esse majus primitiva.

A Servant shall be stopped to say the

Frank-Tenement is belonging to his Ma∣ster, by a recovery against his Master, al∣though the servant be a stranger to the Re∣covery; for he shall not be in better case then he is in, whose Right he claimeth, or ju∣stifieth.

9. Quod ab initio non valet, in tractu tempo∣ris non convalescit.

If an Infant, or a married woman, do make a Will, and publish the same, and af∣terwards dyeth, being of full age, or sole, notwithstanding this Will is void.

10. Vnumquodque dissolvitur eo modo quo colli∣gatur.

An Obligation or other matter in writing, may not be discharged by an agreement by word, but by writing.

11. He that claimeth a thing on high, shal neither have gain, nor loss thereby.

As if one Joynt-Tenant make a Lease o•• his Joyntee, reserving rent, and die; the heire which surviveth shall have the reversi∣on of his Joyntee, but not the Rent, because he cometh in by the first Feoffer, and not un∣der his companion.

Also where the husband being leased for yeers in right, reserving a Rent, the woman shall have the residue of the terme, but not the rent.

12. Debile fundamentum, fallit opus.

When the estate whereunto the Warran∣tie is annexed is defeated, the Warrantie is also defeated.

13. Incidents may not be severed.

As if a man grant Wood to be burnt in such a house, wood may not be granted a∣way, but he which hath the house, shall have the wood also.

14. Actio personalis moritur cum persona.

As if battery be done to a man, if he that did the battery, or the other die, the Action is gone.

If the Leasor covenant to pay quit-rents, during the terme, his Executor shall not pay it, for it is a personal covenant.

15. Things of higher nature, do determine things of lower nature.

As matters of writing do determine an agreement by words.

If an offence which is murder at the Com∣mon law, be made high Treason, no appeal lieth for it, for that the Murder is drowned, and punishable as Treason, whereof no ap∣peal lieth.

16. Majus continet minus.

Whereby the Custom of a Manor, a man may demise for life, he may demise to his Wife, durante viduitate.

17. Majus dignum trahit ad se minus dignum.

As the Writings, the Chest or Box they are in.

OF PHILOSOPHY.

18. Naturae vis maxima.

NAtural affection or brotherly love, are good causes or considerations to raise an use.

And one brother may maintain a suit for another.

19. The law favoureth some persons. Viz.

Men out of the Realm, -or in Pison, Wo∣men

married, Infants, Ideots, Mad-men, Men without intelligence, Strangers, that are neither parties, nor privie, and things done in anothers right.

A descent shall not take away the entry of a man out of the Realm, or in prison, or of a married woman, or of an infant.

And a lease made to the husband and wife, after the death of the husband, the wife shall not be charged for waste, during the mariage.

An Ideot shall not be compelled to plead by his Guardian or next friend, but shall be in the Court; and he that pleadeth the best plea for himself, shall be admitted:

If a dumb man bring an action, he shall plead by his next friend:

If a Lessee for years grant a Rent-charge, and surrendereth, the rent shall be paid, du∣ring the terme, to the Stranger:

A man Out-lawed or Excommunicated▪ may bring an Action as an Executor:

20. And a mans person before his possessions,

Mentioned of corporal pain, shall avoid a Deed, but not his Goods.

21. And matter of possession more then matter of right, when the right is equall.

As if a man purchase several lands at one time, held of several Lords by Knights ser∣vice, and dieth, the Lord which first seizeth the Ward, shall have it, otherwise his elder Lord.

22. Matter of profit or interest shall be taken largely: and it may be assigned, and it may not be countermanded; but matter of plea∣sure, trust or authority, shall be taken strictly, and may be countermanded.

As licence to him in my Park, or in my Garden to walk, extendeth onely to him∣self, and not to his servant, nor any other in his companie; for it is matter of pleasure on∣ly; otherwise it is of a Licence to hunt, kill, and carry away the Deer, which is matter of profit.

A Church-way is matter of ease.

OF POLITICAL.

23.

NOthing shall be void, which by possibi∣lity may be good; If Land be given to a man, and to a woman married to another

man, and the heires of their two bodies, this is a present estate Tayle, because of the pos∣sibilitie.

24. Ex nudo pacto non oritur actio.

No man is bound to his promise, nor any use can be raised without good consideration.

A consideration must be some cause or oc∣casion which must amount to a recompence in Deed, or in Law, as money, or natural af∣fection, not long acquaintance, nor great fa∣miliarity.

25. The Law favoureth a thing that is of necessity.

As to pay several expences, shall not be said to Administer; to distrain in the night, dammage feasant, to kill another to save his own life.

A servant to beat another to save his Ma∣ster, if he cannot otherwise choose.

To drive another mans cattel amongst mine own, untill I come to a place to shift them, is no Trespass.

26. And for the good of the Common-wealth.

As killing of Foxes, and the pulling down of an house of necessity to stay a fire.

27. Communis error facit jus.

As an Acquittance made by a Major alone, where there be a hundred presidents, is good.

28. And things that are in the Custody of the law.

Goods taken by Distress, shall not be taken in Execution for the debt of the ow∣ner thereof.

29. The husband and the wife are one person.

They cannot sue one another, nor make any Grant one to another: And if a woman marry with her Obligor, the debt is extinct; and she shall never have any action, if ano∣ther were bound with him; for by the mariage the Action is suspended; and an action perso∣nal suspended against one, is a discharge to all.

30.

An Obligation with a condition to enfeoff a woman before such a day, and before the day the Obligor taketh her to wife, the ob∣ligation is forfeited, because he cannot in∣feoff her, but he may make a lease for years with a remainder to his wife.

When a joynt Purchase is, during the mar∣riage, every one shall have the whole.

When a joynt purchase, during the mari∣age, is made, and the husband sell; the wife shall have a Cui in vitâ for the whole against both, and on a feoffment made to one man and his wife, and to a third person, the third person shall have one moity.

31. All that a Woman hath, appertaineth to her Husband.

Personal things, and things absolutely re∣all, as Lands, rents, and so forth, or Chattels reall, and things in Action, are onely in her right; notwithstanding real things, and things in Action, he may dispose at his pleasure, but not Will or charge them; and he shall have her real Chattels, if he survive. Of things in Action, the woman may dispose by her last Will, and she may make her husband her Executor, and he shall recover them to the use of the last will of his wife.

If a Leassee for years grant his terme to a man, or woman, and to another, they are joynt-Tenants; But if goods be given to her and to another, her husband and the other are Tenants in common.

The Husband may release an Obligation, or trespass for goods taken when his wife was sole, and it shall be good against the wo∣man

if he die; but if he die without making any such Release, the woman shall have the Action, & not the Executor of her husband.

The woman surviving, shall have all things in Action; or her Executors, if she die.

The Husband shall be charged with the debts of his wife but during her life.

32, The will of the Wife, is subject to the will of her husband.

Note, a Feoffment made to the wife, she shall have nothing, if her husband do not thereunto agree.

MORALL RULES.

33.

THe Law favoureth works of Charitie, right, and truth, and abhorreth fraud, coven and incertainties, which obscure the truth; contrarieties, delayes, unnecessary cir∣cumstances, and such like.

34. Dolus & fraus una in parte sanari debet.

No man shall take benefit of his own wrong; if a man be bound to appear at a day, and before the day the Obligee casts him in prison, the bond is void.

A Grant of all his woods in B. Acre, which may be reasonably spared, is a void Grant, if it be not reserved to a third person, to appoint what may be spared.

A Feoffment made in Fee of two Acres to two men, Habend one acre to one, and the o∣ther acre to the other; this Habend▪ is void.

35. Lex neminem cogit ad impossibilia, &c.

The Law compelleth no man to shew that which by intendment he doth not know; as if a servant be bound to serve his Master in all his commandements lawfull, it is a good Plea, to say, he served him lawfully.

A Covenant to make a new Lease upon the Surrender of the old Lease, and after the Covenanter doth make a Lease by Fine, for more years to estrange, the Covenant is broken, although the Lessee did not surren∣der, the which by the words ought to be the first Act, for that the other had disabled to take, or to make.

LAW CONSTRUCTIONS.

THe Law expoundeth things with equity and moderation, to moderate the strict∣ness; it is no Trespass to beat his Apprentice

with a reasonable correction, or to go with a woman to a Justice of Peace, to have the peace of her husband, against the will of her husband, which equity doth restrain the ge∣nerality, if there be any mischief or inconve∣nience in it; As if a man make a feoffment of his lands in, and with Common, in all his Lands in C. the Common shall be intended within his Lands in C. and not in his other Lands he shall have else-where.

36. Every Act shall be taken most strictly a∣gainst him that made it.

As if two Tenats in Common, grant a Rent of 10. shillings, this is several, and the Grantees shall have 20. shillings: but if they make a Lease, and reserve 10. shillings, they shall have onely 10. shillings between them▪

So an obligation to pay 10. shillings at the feast of our Lord God; it is no Plea to say that he did pay it; but he must show at what time, or else it will be taken he paid it after the feast.

37. He that cannot have the effect of a thing, shall have the thing it self.

Ʋtres magis valeat quam pereat.

As if a Termor grant his Terme, Haben∣dum

immediat è post mortem suam; the Gran∣tee shall have it presently.

38. When many joyn in one Act, the Law saith it is the Act of him that could best do it, and that thing should be done by those of best skill.

As the Disseizee, and the heir of the Dis∣seizor, who is in by discent, joyn in a Feoff∣ment; This shall be the Feoffment of the heire onely, and the confirmation of the Dis∣seizee.

And the Merchant shall weigh the Wares, and not the Collectors▪

39: When two titles concur, the elder shall be preferred.

40: By an acquittance for the last payment, all other Arrerages are discharged.

41: One thing shall enure for another:

If the Leasor enfeoff the Lessee for life, it shall be taken for a confirmation▪

42. In one thing, all things following shall be con∣cluded, in granting, demanding, or prohibiting.

If one except a Close, or a Wood, the Law will give him a way to it.

43. A man cannot qualifie his own Act.

As to release an Obligation untill such a time.

44. The construction of the Law may be alter∣ed by the special agreement of the parties.

If a house be blown down by the wind, the Lessee is excused in waste; but if he have covenanted to repair it, there an Action of Covenant doth lie by the agreement of the parties.

45.

The Law regardeth the intent of the par∣ties, and will imply their words thereunto; and that which is taken by common intend∣ment, shall be taken to the intent of the par∣ties; and common intendment is not such an intendment as doth stand indifferent; but such an intent as hath the most vehement pre∣sumption. All incertaintie may be known

by circumstances, every deed being done to some purpose, reason would that it should be construed to some purpose, and variance shall be taken most beneficial for him to whom it is made, and at election.

46.

An intendment of the parties shall be or∣dered according to the Law.

If a man make a Lease to a man, and to his heires, for ten years, intending his heires shall have it, if he die, notwithstanding the intent, the Executors shall have it.

47. Qui per alium facit, per seipsum facere vi∣detur.

A promise made to the Wife in considera∣tion of a thing to be performed by her Hus∣band, if he agree, and perform the Conside∣ration, in an Action of the case, he shall de∣clare the assumption was made to him.

And if my servant sell my goods to ano∣ther in deqt I shall suppose, he bought them of me.

CUSTOMES. Consuetude est altera lex.

CUstomes are of two sorts; General Cu∣stomes in use throughout the whole Realme, called Maximes; and particular Cu∣stomes used in some certain County, Citie, Towne, or Lordship, whereof some have been specified before, and some follow here, and where occasion is offered.

GENERAL CUSTOMES.

THe Kings Excellencie is so high in the Law, that no Freehold may be given to him, nor derived from him, but by matter of Record.

Every Maxim is a sufficient authority to itself; and which is a Maxime, and which is not, shall alwayes be determined by the Judges, because they are known to none but to the learned.

A Maxime shall be taken strict.

A particular Custom, except the same be a Record in some Court, shall be pleaded, and tryed by 12. men.