Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

CHAP. 3.

Of rules taken from other learnings.

THE rules of reason are of two sorts; some taken from forreigne learnings, both diuine & humane: the rest proper to Law it selfe.

Of the first sort are the princi∣ples, and sound conclusions from forreign learnings; Out of the best and very bo∣wels of Diuinitie, Grammer, Logicke; al∣so from Philosophie natural, Politicall, Oe∣conomicks, Morrall, though in our report•• and yeere-bookes they come not vnder the same tearmes, yet the things which ther•• you finde are the same; for the sparkes o•• all Sciences in the world are raked vp in the ashes of the Law: and well doth one say, Non ex Praetoris edictis, neque a 12 tab••∣lis, * 1.1 sed penitus ex intima philosophia hauriend•• iuris disciplina est. Hee that will take th•• whole body of the Law before him, an•• goe really and iudicially to worke, mus•• not lay the foundation of his building i•• Estates, Tenures, the gift of Writs, an•• such like, but at those currant and soun•• principles which our bookes are full of.

First from Diuinitie, the doctrine••

••••ligion, the head and master-peece of all the rest, whereof S. Augustine saith truly, * 1.2 O••nium legum est inanis censura, nisi diuinae legis imaginem gerat. From hence we haue these two rules.

To such lawes of the Church as haue * 1.3 warrant in holy Scripture, our Law gi∣ueth credence.

1 The Sabbath day is no day for law Cases, vpon a fine leuied with Procla∣mations according to the Statute, 4 H. 7. Cap. 24. if any of the Proclamations be made on the Lords day, all the Proclama∣tions are erronious, for the Iustices may not sit vpon that day, but it is a day exempt from such businesse by the Common-law for the solemnity of it, to the intent that all people may apply themselues that day to praier and seruing of God.

No Plea shall be holden Quindena pas∣chae, because it is alwaies the Sabbath, but it shall be Crastino quindenae paschae. * 1.4

If a Writ of Scire facias out of the Com∣mon-place * 1.5 beare Teste vpon a Sunday, it is error, because that is not Dies iuridicus in Banco.

No sale vpon a Sunday shall bee said a * 1.6 sale in market ouert to alter the property.

Of Grammer, the rules are infinite in the Etymologie of words, and in the con∣struction of them, what their nature is

single, what ioyned with other: among the rest which need not be remembred, this one wee haue common in our Bookes.

2. Words, in construction must be refer∣red to the next antecedent, where the matter it selfe doth not hinder it.

An Endictment of murder, found in this sort, That Eliz. fuit in pace &c. quosqu•• * 1.7 A. vir praefat. Eliz. de D. in Com. S. Yeoman, did kill her, is good; for the addition Yeo∣man, must of necessity referre to the hus∣band, because a woman cannot bee a Yeo∣man; but an endictment quous{que} Alicia S. d•• D. in Com. S. vxor I. S Spinster, &c. is no•• good against Alice S. for there Spinster be∣ing an indifferent addition, both for ma•• and woman, must referre to I. S. which i•• the next antecedent, and so the woma•• hath no addition. So of an enditement a∣gainst * 1.8 I. S. seruiens I. D. de D in Com. Midd•• Butcher: This is not good, for, Seruant i•• no addition, and Butcher referreth to th•• Master, which is the next antecedent.

From Logick; In the Maxime of causes and effect••

3. The cause ceasing, the effect doth lik•• wise cease.

The King granteth an Office to one •• * 1.9

〈◊〉〈◊〉, and ten pound fee during life prooffi∣〈…〉〈…〉illo, now if the King put him from his office the fee shall cease.

The Executor, nor husband (after the * 1.10 death of his wife gardein in soccage) shall retaine the Wardship, for the Gar∣den hath it not to his owne vse, but to the benefit of the Heire: and the Executor, or husband haue not the affection which the Testator or his wife had, which was the cause that the Law gaue them the Ward∣ship.

If a stroke be giuen the first day of May, and the King pardon him the second * 1.11 day of May, all felonies and misdemea∣nors, the party smitten dieth the third day of May, so as this is no felony till after the pardon, yet the felony is pardoned, for the misdemeanor is pardoned, and there∣fore all things pursuing are also pardoned.

The King hath a Ward, pur cause de gard, and after maketh liuery to the first * 1.12 Ward, now the second Ward shall not sue liuery.

If two Coparceners make a Lease reser∣uing a rent, they shall haue this rent in common, as they haue the reuersion: But if afterwards they grant the reuersion, ex∣cepting the rent, then they shall bee Ioyn∣tenants of the rent.

It is no principall challeng to a Iuror that he hath married the parties mother, if she * 1.13 be dead without issue, for the cause of fa∣uour is remoued.

4. Things are construed according •• that which was the cause therof.

A man makes me sweare to bring hi•• * 1.14 money to such a place, or else hee will kill me, I bring it him accordingly: This is fo¦lony in him. So if hee make me sweare •• * 1.15 surrender my estate vnto him, and I do f•• afterwards, this is a disseisin to me.

One imprisoned till hee be content •• * 1.16 make an obligation at an other place, an•• afterwards he doth so, being at large, ye•• he shall auoid it by dures of imprisonmen••

Outlary in trespasse is no forfeiture o•• * 1.17 land, as outlary of felony is, for thoug•• the not appearing be the cause of outlar•• in both, yet the force of the outlary sha•• be esteemed according to the hainousnes•• of the offence, which is the principall cau•• and foundation of the processe.

A man and feme sole haue a villein, an•• afterwards entermarry, and the villein pu••¦chaseth land, they shall not haue the lan•• by entierties, but by moities ioyntly, or i•• common, as they had the villein.

5. According to that which was the b••¦ginning of it.

If a Seruant (departed out of his M••¦sters * 1.18 seruice) kill his Master vpon a mali•• that he beare him whilest hee was his se••¦uant, it is pettie treason.

••. erects a Shop vpon the Kings Free∣hold, * 1.19 the King grants the land to B. in fee; A. before entrie or seisor of the shop by the Kings Patentee, continueth his posses∣sion and dieth seised. This is no discent to ••••ll the Patentees entry: for by his first erecting of the Shop, hee could gaine no∣thing against the King.

6. And therefore a deriued power cannot be greater than that from which it is deriued.

The Atturney of one that is disseised * 1.20 cannot make claime off from the land, if the dissessee himselfe durst haue gone to the land.

The Bailiffe of a disseisor shall not say, * 1.21 That the Plantiffe neuer had any thing in the land, for the Master himselfe shall not haue that plea, because he is not Tenant of the Freehold.

The Seruant shall bee estopped to say, * 1.22 The Free-hold is his Masters, by recouery against his Master, thou'gh the seruant himselfe be a stranger to it, for he shall not bee in better condition than hee in whose right he claymeth.

7. Things are dissolued as they bee con∣tracted.

An Obligation, or other matter in wri∣ting * 1.23 cannot bee discharged by an agree∣ment by word.

In an annuity growing by prescription * 1.24 rien arere is a good plea, for this prescripti∣on is a matter in fait: but in an annuity by deed it is no good plea, without shew∣ing an acquittance.

When a man auoides the Kings title, by * 1.25 as high a matter of record as the King claimeth, he may haue it by way of plea, without being driuen to his petition, though the King bee entituled by double matter of record; as one is attainted of treason by Parliament, and an office findes his lands, whereby the King seiseth them, The party may alledge restitution by Par∣liament, and a repeale of the former act.

8. Things grounded vpon an ill and void void beginning cannot haue a good per∣fection.

An Infant, or a feme couert make their * 1.26 will, and publish it, and after dying of full age, or sole, yet the will is nothing worth.

One disseised of two acres in D. relea∣seth all his right in all his lands in D. and deliuereth it to a stranger, to bee deliuered ouer to the disseisor as his deed, such a day: before which day, the disseisor disseiseth him of an other acre in D. and then the re∣lease is deliuered ouer to him, yet nothing of the right of this third acre passeth by the release.

9. Hee that claimeth paramount, a thing shall neuer take benefit nor hurt by it.

Two Ioyntenants, one makes a lease * 1.27 for yeares of his moity, reseruing a rent, and dyeth. The suruiuing Ioyntenant shall haue the reuersion of his moity, but not the rent, for hee commeth in by the first feoffor, and not vnder his companion. So of the wife, where the husband being lessee for yeeres in her right, maketh a lease of part of the terme, reseruing a rent.

An Executor recouereth and dieth inte∣state, administration of the goods of the first testator is committed to I. S. I. S. shall not sueexecution vpon this recouery.

Dower cannot be assigned, reseruing a rent, or with a remainder, ouer, for shee is in from the husband, and not from him that assigneth dower.

10. According to the end.

Vouchee commeth into the Court to * 1.28 be viewed, and being viewed, is awarded of full age; yet hee shall not be driuen to answer, till he come in to the same intent by other Processe.

The vouchee, vpon a Grand cape ad va∣lentiam, * 1.29 shall not lose the land, though he cannot saue his default, for the processe is onely to this end to haue him to appeare.

A man that is warned by Writ to an∣swere * 1.30

to a matter shal not be driuen to an∣swere any other matter than is contained in that Writ, though the King bee partie. As if by office it be found, that lands in chiefe discended to I. S. a foole naturall, and that A. occupieth them, whereby a Scire fa∣cias goeth out against A. to answere why the lands should not bee seised into the Kings hands for the Ideocie of I. S. A com∣meth in and pleads, That I. S. when he was of perfect memorie, made a release to one B. who infeoffed A. This is good enough without shewing any licence of alienation to discharge himselfe for the purchasing of those lands.

In the maxime of Subiects and adiuncts.

11. Where the foundation faileth, all go∣eth to the ground.

A Church appropriated to a spiritual cor∣poration, * 1.31 becommeth disappropriate, if the corporation be dissolued.

A disseisor of lands in ancient demesne * 1.32 the Lord confirmes vnto him to hold at the Common Law, the disseisee reentreth; now the land shall be ancient demesne a∣gaine: for the estate (whereupon the con∣firmation should inure) is defeated.

When an estate (to which a warranty is * 1.33 knit) is vndone, the warranty also is vn∣done. As if Tenant in taile discontinue, and the discontinuee is disseised (or make

a feoffement vpon condition) in whose possession a collaterall ancestor of the issue in taile releaseth and dieth, the issue is bar∣red. But if the discontinuee enter vpon the disseisor (or vpon the feoffee for the condi∣tion broken) the issue is restored to his formedon.

12. Things incident cannot be seuered.

Estouers, or wood graunted to be burnt * 1.34 in such a house, shall goe to him that hath the house, by whatsoeuer title: for one is inseperably incident to the other.

Lord & Tenant by fealtie and homage, the Lord releaseth his fealtie; this is void: * 1.35 for fealtie is incident to homage.

An office of skill and diligence, or annu∣itie, pro concilio impendendo, cannot be for∣feited * 1.36 by attainder of Treason.

A Court baron is incident to a mannor, and Court of Pipowders to a Faire: there∣fore * 1.37 one cannot grant the mannor or faire, reseruing those courts. Where one holdeth of a man to keepe his Castle the Lord can∣not * 1.38 grant his Castle gard, reseruing the Castle.

13. Things by reason of another, are of the same plite.

The custome of Gauelkind is not chan∣ged, though a fine or recouerie bee had of the same at the Common Law: for this is

a custome by reason of the land, and there∣fore runneth alwaies with the land.

But otherwise it is of lands in auncient * 1.39 demesne, partible among the males: for there the custome runneth not with the land simply, but by reason of the auncient demesne: and therefore because the nature of the land is changed by the fine or recouerie from ancient demesne to land at the Common Law, the custome of parting it among the males is also gon.

An erronious recouerie had of lands in * 1.40 Boroughenglish, the puisne sonne shall haue a Writ of Error, because the land it selfe goeth to him. So shall all the sonnes of lands in Gauelkind.

Two Coparceners make partition, and * 1.41 one couenants with the other to acquit the land: now if the Couenantee alien his part, the Alienee shall haue a writ of Co∣uenant.

Personall things.

14. Cannot be done by another.

Suite of Court cannot be done by ano∣ther. * 1.42

A man cannot excuse himselfe of a con∣tempt * 1.43 (as of not seruing the Kings Pro∣cesse) by Attornie, but in proper person.

15 Cannot be granted ouer, as matters of pleasure, ease, trust, and authoritie.

A licence to hunt in my parke, to goe to * 1.44 Church ouer my ground, to come into my house, to eate and drinke with me, cannot be granted ouer. So of a way granted for * 1.45 life ouer my ground.

The Patentee for life of an office of trust, * 1.46 ••s to be a Chamberlaine of the Exchequer: Squire of the bodie cannot assigne it, vn∣lesse it be specially limitted in his Patent that he may. For then he might grant it to one in whom the King hath no trust, or that would be negligent &c.

The keepership of a Park, Stewardship, * 1.47 Bailywicke of Husbandrie, &c. for life, cannot be granted ouer, because they are offices that require skill and diligence.

A. licenceth B. to doe an act: B. cannot * 1.48 ••••••nt this licence to another.

A Warrant of Atturney made to one to * 1.49 deliuer seisin, he cannot grant this his au∣thoritie ouer.

16. Die with the person.

When a Corporall hurt or dammage is * 1.50 done to a man, as to beate him &c. if hee or the partie beaten die, the Action is gon.

Lessor Couenants to pay quitrents du∣ring * 1.51 the terme, & dieth, his executors shal not pay them: for it is a personall Coue∣nant, which dieth with the person.

Among the disagreeable arguments.

First from those that differ onely in a cer∣taine

respect and reason, not in déed and in nature.

Things doe inure diuersly, according to the diuersitie of

17. Time.

Lands giuen in Frank mariage, reseruing * 1.52 a rent, the reseruation is void till the fourth degree past, and afterwards good.

Person viz.

18. The same person.

One that hath a rent charge going out of * 1.53 the wiues lands, releaseth it to the husband and his heyres: the husband yet shall not haue it▪ but it shall inure to him by way of extinguishment onely, as seised in right of his wife.

19. Seuerall persons.

A man makes a lease of a Mannor, ex∣cept * 1.54 an acre, this acre is no part of the ma¦nor, as to the lessor, but as to him that hat•• right to demand the mannor by an eig•• title, it remaineth parcell, and therefore h•• shall make no foreprise in his Writ.

If tenant in taile and his issue disseise th•• discontinuee of tenant in taile; and tena•• * 1.55 in taile die, whereby the lands disend •• the issue: Now he shall be remitted, an•• shall be in as tenant in taile against eue••

stranger, and derraigne the first warrantie; but not as against the discontinuee, because he was Particeps Criminis.

Then from Relatiues.

20. No man can doe an act to himselfe.

A man cannot present himselfe to a be∣nefice, make himselfe an officer, nor sue * 1.56 himselfe: and therefore when a man ha∣uing right to land, hath the freehold cast * 1.57 vpon him by a latter title, he shall bee sayd in of his ancient title, because there is no bodie against whom he may sue, but him∣selfe, and he cannot sue himselfe.

No more can a man summon himselfe. * 1.58

And therfore if the sherife suffer a com∣mon recouerie, it is error, because hee can∣not * 1.59 summon himselfe.

A man cannot be both Iudge and partie in a suite. * 1.60

And therefore if a Iustice of the Com∣mon place be made a Iustice of the Kings Bench: though it be but hac vice, it deter∣mineth his patent for the Common place. For if he should be Iudge of both Benches together, he should controll his own iudg∣ments: for if the Common place erre, it shall be reformed in the Kings Bench.

Of Comparisons.

From the equals.

21. Things are to be construed Secundum equalitatem rationis.

Vpon a recognisance acknowledged by * 1.61 the Ancestor, or a Iudgement in an Action of Debt giuen against him: if he die seised of two acres, whereof one holden in Bo∣rough English, or hauing issue two Daughters which make partition, or if he die without issue, whereb part of his land discendeth to the heire of his fathers part, and part to the heire on the part of the mo∣ther: in all these cases if one onely be char∣ged, he shall haue contribution against the other: for they are in aequali iure.

If two, foure, or more men being seueral∣ly * 1.62 seised of land, ioyne in a recognisance, all their lands must equally be extended.

And this is a Logicall vertue, a kinde of * 1.63 equitie as Bracton calleth it, where he saith, Equitas est rerum conuenientia quae paribus in causis paria iura desiderat, & omnia bene coae∣qui parat: Et dicitur aequitas quasi aequalitas. Whose nature is to amplifie, inlarge, and adde to the letter of the Law.

Especially this shineth & sheweth forth it selfe in the exposition of Statutes, by ex∣tending things there prouided to mischiefs in the like degrees, whereof the examples euery where are pregnant, and in guiding the grounds and maximes of things, that newly start vp, by the rule of the Common Law.

Vses at the Common Law were (a) 1.64 no∣thing, yet in time gaining greater regard

to be imputed among inheritances, are de∣meaned as other inheritances at the Com∣mon Law. So as a possessio fratris shall bee of them, and of lands in Borough English, the vse shal discend to the puisne. And now also these vses beeing turned into estates, shall be demeaned in all respects as estates in possession.

So when (b) 1.65 Custome createth inheri∣tance in Copihold lands, and maketh the lands discendable, then shall the Law di∣rect the discents according to the maximes and rules of the Common Law, to haue a possessio fratris, and such like: but not in col∣laterall things, as Tenancie by curtesie Do∣wer, discent to toll an entrie, &c.

From the greater and the lesse.

22. The greater doth containe the lesse.

By a pardon of murder, man slaughter is pardoned.

An attaint supposing a verdict to haue passed before two Iustices, wheras it passed before foure, is good enough.

A recouery pleaded of three acres, where it was of sixe, is good enough.

A Condition that I shall not infeoffe I. S. is broken, if I. infeoffe him and I. D.

A Copiholder of a mannor, where the custom giueth libertie to demise in fee, may demise it for any lesse estate, without other prescription

Where the custome is, that a man shall

not deuise his lands for any higher estate * 1.66 than for terme of life, yet if a deuise bee in fee, and the deuisee claime but for life, the deuise is good.

By the statute 32. Henric. 8. that giueth * 1.67 power to deuise two parts of ones lands, a deuise of the whole had bin good for two parts, though the Statute 34. & 35. H. 8. of explanations had not beene made.

23. A matter of higher nature determineth a matter of lower nature.

A man hath liberties by prescription, & * 1.68 after taketh a grant of those liberties by Letters Patents from the King, this deter∣mineth the prescription, for a matter in writing determineth a matter in fait.

If an offence, which is murder at the * 1.69 Common-law bee made high Treason, no appeale shall lie of it, because the offence of murder is drowned, and it is punishable as high treason only, whereof no appeale lyeth.

24. The more worthie thing draweth to it things of lesse worthinesse.

An adulterer takes away another ma•••• * 1.70 wife, and puts her in new clothes, the hus∣band may take the wife with her clothes.

A boxe insealed with charters, it shall * 1.71 goe to the heyre with the Charters, & not to the Executors.

A base Myne where there is Ore, shall be the Kings for the worthinesse of the Ore.

The bodie of a man is more worthie than * 1.72 land, therefore land shall follow the nature of the person:

As a villein shall make free land to bee villein land, but villein land shall not make a free-man to be a villeine.

So the Kings land which he hath in his naturall capacitie, shall be demeaned accor∣ding to the priuiledge and prerogatiues of his bodie royall.

And therefore

25. Things accestarie are of the nature of the principall.

A seruant procureth another to kill his * 1.73 master: This is no pettie Treason, in the seruant, because it is but felony in the other which is the principall. * 1.74

A Parson grants an annuitie with a No∣mine poene, the successor shall be charged with the Nomine poene due in his predeces∣sors life, and not his executors.

The profits of the office of a Filizer, &c. * 1.75 cannot be put in execution vpon a recogni∣sance, Statute, &c. because the office it selfe, being an office of trust, cannot.

Tith is not payable of Okes vsually top∣ped * 1.76 and lopped (though it be euerie seuen or eight yeares) for the branches are of the nature of the principall (that is to say) the

Oke it selfe) for which no Tithe is to bee paid.

26. A mans owne words are voide, when the law speaketh as much.

Lands giuen to two, & vni eorum diutius viuenti, they make partition, and one dy∣eth; * 1.77 yet the lessor shall haue again the mo∣itie of him that dieth, for vni eorum diutius viuenti are but idle words, because (without them) the Iointenant, by course of Law is to haue all, if he doe suruiue.

From the rule of methode.

In things of ffor malitie

27. The generals must go before, and the specials follow after.

In a Writ the (c) 1.78 generall shall be put in demand, and in plaint before the special: as land before pree, pasture, wood, iuncarie, marish, &c. wood before Alders, will owes, &c.

28. The more worthie is to be set before the lesse worthie.

The entier thing shall be demanded be∣fore * 1.79 the moitie part or parts.

The thing of greater dignitie before that * 1.80 which is of lesse: as a mease before land, a

••astle before a messuage or mannor.

In a repleuin if it be of two Cattels, one * 1.81 quicke and the other dead, the liuing thing shall be first demanded.

Where one hath the presentment to a Church two turnes, and another the third turne: he that hath the third turne, bring∣ing a Quare impedit, shall not begin with his own turne first, but with the other two turnes.

Next are the precepts of Naturall Phy∣losophie.

29. Law respecteth the bonds of Nature.

Affection for the prouision for the heires males that one shall ingender, brotherly loue, &c. are good considerations to raise a vse: but long acquaintance and familiaritie are not.

The sonne may maintaine his father, & one brother another.

Brothers or cosins shall not wage battell in a writ of right.

A Statute that maketh it felonie to re∣ceiue or giue meate and drinke to one that committeth such & such an offence know∣ing it, stretcheth not to a woman that re∣ceiueth or giueth meat & drink to her hus∣band in such a case.

30 The Law iudgeth and esteemeth of al ••••cording to their nature: both persons &

their ages, things, actions, and the time of the doing them.

In persons,

It looketh to the excellencie of some, & gi∣ueth them singular priuiledges and pre∣heminences aboue the rest. As to the King, the Queen his wife, Noblemen, and Peeres of the Realme. Also vnto them of the Church.

It tendreth the weakenesse and debilities of others; As of

Men out of the Realm, or in prison, Feme Couert (and therefore fauoureth them for their dowers) infants, men vnlet∣tered. Ideots out of their eight minde, or without all vnderstanding, as those that are borne dumbe deafe, and blinde, or hauing other imperfections.

If a disseisor die seised, the disseisee bee∣ing all the while within age, Couert baron in prison or out of the Realme, it shall be no discent to toll the entrie of the disseisie.

Vpon a lease made to a husband & wife, shee shall not bee charged after the Hus∣lands death, for wast done by him in his life time.

A woman shall be indowed of the best possession of her husband: as if the hus∣band held of I. S. by iij. d. who held out

of another by xx. d. and I. S. release to the husband (so as now the husband holds by xx d) the wife being indowed of this land, shall hold onely by the third part of iij. d. and not of xx. d.

An Infant, Ideot, and a man of non sane memorie, may enter, or haue an action to a∣uoid their feoffements.

If a dumbe person bring an action, hee shal plead by procheine amy.

31. Strangers not parties nor priuies.

Lessee for yeares grants a rent charge, & * 1.82 surrenders, yet the rent shal be paid during the yeares.

So if he in the reuersion grant a Rent charge during the terme, and then the les∣see surrendreth vnto him, he shall pay the rent during the terme: for a stranger (that is, the grauntee of the rent) for his benefit shall say, that the terme continueth, & that it is determined.

And therefore

Things done in anothers right.

A person out-lawed or excommunicated may haue an action as executor of another man.

And a villeine in such case against his Lord: for they recouer not their owne but to anothers vse.

32. It disfauoureth other some.

Aliens neither borne within the Real•• nor free denisens, that they shal not pa••¦ticipate of the priuiledges of natur•• borne subiects.

Especially aliens that are enemies.

Alien enemies shal not haue so much: a personall Action, which other Alie•• may.

An obligation made to an alien ene•• shall goe vnto the King.

Any bodie may seise the goods of an a••¦en enemie, to his owne vse.

Touching their ages.

33 It holdeth

xxj their full age to make good any •• they doe.

xiiij their age of discretion.

And therefore

That a competent age to bind a man •• matter of marriage.

xij to bind the woman.

ix to deserue her dower.

In things

34. It respecteth euerie one according to worthinesse. As

Life and libertie most; the person aboue his possessions; freehold and inheritance more than it doth chattels; reall chat∣tels more than personall.

None shall haue iudgement to recouer in an action of wast, where the wast commeth but to 12. d or such a pettie summe, for De minimis non curat lex.

A lease for life, the remainder for yeres, the remainder ouer in fee, an action of wast lieth for him in the remainder, against les∣see for life: for the meane estate for yeares is not regarded. Otherwise it were if the immediate estate of the remainder were an estate for life.

A villeine infranchised for an hower, is for euer. So infranchised vpon condition, the condition is voide, and the infranchise∣ment absolutely good.

If a man for feare and simplicitie will confesse himselfe guiltie of a felonie, yet the Iudge must not record that confession, but suffer him to plead not guiltie: & that is in fauorem vita.

35. A matter in the right more than a mat∣ter in possession.

In auowrie or annuitie, aide shal not b•• of a person, if the plaintife be seised by t•• * 1.83 hands of the same person, because it is •• the persons owne wrong to denie it.

Otherwise in a Cessauit, for that is in t•• right for the land.

In an action of Trespasse against tena•• for life, who pleads villenage in the plai••¦tife, * 1.84 and the piaintife is found franke at no villeine, yet he in the reuersion is not stopped by this verdict: for the thing it sel•• whereupon the reuersion dependeth is •• in demand, and the plaintife shall recou•• onely dammages: neither can he in the ••¦uersion haue a writ of errour or attaint v••¦on it.

Otherwise it is in a Natiuo habendo: •• there the right of villenage commeth •• question, and he in the reuersion may ha•• an error or attaint.

Yet it fauoureth

36. Possession where the right is equall••

A man purchaseth at one time seue•• lands holden of seuerall Lords by Knig•• seruice, and dieth: the Lord that first •• happe the Wardship of his heire, sh•• haue it.

Husband and wife purchase socage la•• * 1.85 vnto them and the heires of their body, a•• hauing issue within fourteene yeres of a••

••••w if the Grand-mother of the part of the mother of the issue doe first seise the bodie, shee shall haue the Wardship, and not the Grand-father of the part of the fa∣ther of the issue.

37. Matters of profit, or interest large∣ly: of pleasure, ease, trust, authority, or limitation strict.

A licence to hunt in my Parke, or walke * 1.86 in my Orchard, extends but to himselfe, not to his seruants, or other in his company, for it is but a thing of pleasure, otherwise it is of a licence to hunt, kill, and carrie a∣way the Deere, for that is a matter of profit.

Way granted to Church ouer my land, * 1.87 extends not to any other but himselfe, for it is but an easement.

A reuersion granted to two ioyntly, and * 1.88 the Tenant atturnes to one, it is a void at∣turnement.

If the Sheriffe behead one that should * 1.89 be hanged, it is felony.

The King licenceth one to alien the * 1.90 third part of his land, and he alieneth all, it is a void alienation for all.

A lease is made to A. and B. for their liues, A. dieth, B. shall haue all during his life, for it is an interest.

But if a Lease be made to I. S. during the life of A. and B. there (if one of them dye) the estate is vtterly determined, for that is a limitation.

38. Therfore these may be counterma••••∣ded, so cannot those.

A licence to come to my house to speak•• with me: (a) 1.91 Goods bailed ouer, to deliue•• * 1.92 to I. S. or (b) 1.93 to bestow in almes. (c) 1.94 A lette•• of Attourney to deliuer seisin: all thes•• may bee countermanded before they b•• done.

But if I present I. S. to a Church, I can∣not * 1.95 after vary and present a new, for a kin•• of interest passeth out of mee.

So if I deliuer an Obligation as a scrowl•• into a Strangers hand, to bee deliuered t•• * 1.96 the obligee, vpon condition performed, f•• the Obligee is as it were partie or priuy •• the deliuerie.

39. Matters of substance more than ma••¦ter of circumstance.

Pleas in barre, and replications (thoug•• * 1.97 the Plantiffe be afterwards non suit) make an estopple, for they are expresse allegati∣ons & material. As in debt vpon an obliga∣tion if the Defendant plead in barre an ac∣quittance made at D. or if the defendan•• plead an acquittance, and the plantiffe re∣ply, that it was made by dures of imprison∣ment at D. now in another action, neithe•• the defendant shall plead that the acquit∣tance, nor the plantiffe that the dures was, at an other place: But a matter in the wri••

〈…〉〈…〉count, makes no estopple, for they are 〈…〉〈…〉t supposels:

As in a formidone and claime by discent 〈…〉〈…〉m I. S. or a mortdancester, as sonne and 〈…〉〈…〉e to I. S.; yet in another formidone hee 〈…〉〈…〉y claime from I. D. and shall not bee estopped.

No more shall recitalls make any estop∣pell, for they are not materiall. As where * 1.98 A. reciting that hee is seised in fee of the mannor of D. graunteth a rent out of it to B. this shall not estoppe A to say that hee had nothing in the mannor.

39. Things executed and done, more than ••••••ngs executorie, and to doe.

•• feme disseisers taketh a husband, the disse••sy releaseth to the husband, after∣ward * 1.99 a diuorce is had for precontract: yet the release remaineth good, because it was executed.

A feoffment made to the vse of ones wil, * 1.100 if his will be declared before or at the time of his feoffement; it cannot be altered, be∣cause it is executed.

Otherwise it is of his will declared af∣ter.

Po••••••bilitie of things.

And therefore

40. Nothing to be voide, that by possibi∣litie

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may bee good.

Lands giuen to a married man and ano∣ther * 1.101 mans wife, and the heires of their two bodies; is a good estate in taile (and that presently executed as some thinke) for the possibilitie that they may entermarie.

A mesualtie is giuen in taile, reseruing a rent, this is good: for the tenancie may es∣cheate * 1.102 to the donee, & then the donor shal distraine for all his arrerages.

A man han hath issue a daughter, and leaueth his wife priuiment inseint: the wife * 1.103 may detaine the charters of her husbands lands from the daughter, for the possibili∣tie that it may bee a sonne that shee goeth withall.

42. A mutuall recompence.

An assumption or promise doth then on∣ly binde, when it is made vpon good consi∣deration of another thing.

Cesti qui vse may grant his vse without consideration, as he may his horse or other chattell: but he cannot raise a vse without good consideration. And this considerati∣on must be some cause or occasion merito∣rious, amounting to a mutual recompence in deed or in law.

A writ of annuitie shall be maintained by a parson against a Vicar, vpon an Ordi∣nance of the ordinarie, if there be Quid pro quo.

In Actions.

43. It yeeldeth fauour, when for the do∣ing of it there is

Necessiitie.

Funerall expences shall first of all bee * 1.104 discharged by executors.

A man may milke a Cow that hee hath by returne irreplegiable. And that is for the necessitie.

A man in his owne defence for the ne∣cessitie * 1.105 of the sauing of his life: & a cham∣pion in a writ of right for the necessitie of triall, may kill another.

Whether referre

44. Conformitie, which is a kind of neces∣sitie.

Rent must be demanded, though no man be vpon the land to pay it. * 1.106

Where an infant in ward marrieth him∣selfe, yet to haue the forfeiture of the mar∣riage, the Lord must tender him one. * 1.107

He that pleadeth in the auoidance of a fine, That the parties to the fine had no∣thing; must shew who had.

But it is not trauersable, but only shew∣ed for Conformitie.

45. Of Colour.

If the heire indow the ancestors wife, * 1.108 though she were not dowable, yet she shall hold in dower.

Where a Court hath no colour to hold plea (as a Court Baron of land not holden * 1.109 of the mannor) all is void.

But where there is colour (as if a Court Baron hold plea of land within the Man∣nor) though it be by plaint, where it should be by Writ originall; yet the iudgement rendred, is only voydable by writ of Errour.

A woman grants a reuersion, and marries with the grantee, if the tenant pay him the rent generally, it is no Atturnement: for he hath colour to pay it him, as seised in the right of his wife.

46. It priseth Acts in law higher than those that are done by the partie.

Vpon the grant of a rent, the Tenaunt cannot attorne nor put the grantee in pos∣session by an Oxe or such like, because it is * 1.110 another thing: but vpon the recouerie of rent, the Sherife may.

Parceners may compell partition, so cannot Ioyne-tenants, nor tenants in * 1.111 common.

For equalitie of partition among Copar∣ceners, a rent granted shall be a fee simple, * 1.112 without words (heires) and issuing out of the lands, without so expressing it in the grant.

Also things that otherwise cannot, may * 1.113

passe without deed, as a rent, reuersion, * 1.114 seigniorie, way auowson, composition, to * 1.115 present by turne. * 1.116

Parceners may haue a Quare impedit one against another (that is, the eldest daugh∣ter may haue it against the rest, if she be di∣sturbed of her presentment.)

So cannot Ioin-tenants, nor Tenants in common.

47. It reputeth that men will alwaies deale for their owne best aduantage.

And therefore

46. Beleeueth against the partie, whatso∣euer is to his owne preiudice.

For the time of doing things:

It countenanceth more

48. Things done in time of peace, than in time of warre.

A disseisin and discent in time of warre, shall not toll the entrie of the disseisee. * 1.117

Vsurpation in time of warre gaineth no * 1.118 possession; but the other may haue an as∣sise of darreine presentment (that notwith∣standing) if his ancestor presented last be∣fore. * 1.119

49. Things done in the day, more than in the night.

Rent payable at a day, the partie hath all the day till night to pay it: but if it bee a * 1.120 great summe, as 500. or 1000. l. hee must be readie as long before the Sun set, as the monie may be told: for the other is not bound to tell it in the night.

A man must not distreine in the night time for rent behind.

Where things are fit to be straitned to a time, it esteemeth (according to the na∣ture of the things)

50. Sometimes a whole day sufficient.

Where goods are lost in warre, and re∣couered from the enemie by another of the kings subiects, the owner shall haue them againe, if he make fresh suite before the Sunne set, else not.

51. Sometimes a whole yeare.

The Lord loseth his villeine for euer, if a villeine flie into ancient demesne, & there continue a yeare and a day, without claime of the Lord.

Recouerie in a Writ of right, and fine•• executed, bind all persons though they haue right, that lay not to their claime within •• yeare.

The King cannot grant a protection to indure longer than a yeare.

52. The third offence it estéemeth more heynous.

The third Writ not returned by the she∣rife, is a contempt, whereupon an attach∣ment lieth.

Politicall precepts follow.

The Law fauoureth

53. Things for the Common: weale.

A man may iustifie the doing of a wrong * 1.121 in things that sound for the Common∣weale.

As in time of warre, to make Bulwarkes in another mans soyle without licence. To rase ones house on fire, in safegard of the neighbors houses.

A Sherife may breake open the dores of ones house to take a felon. But not to serue a Capias in an action of Debt or Trespasse: for that is a particular case, and not for the Common-weale.

Fishermen may iustifie their comming * 1.122 vpon the land adioyning to the sea, to drie their nets: for fishing is for the Common∣wealth, and sustenance of all the Realme.

A mill-stone that is lifted vp to be pick∣ed and beaten, cannot be distrained, for it * 1.123

remains parcel of the mill, which is a thing for the Common-wealth.

Things brought into an Inne or Faire, or * 1.124 Market; or cloth lying in a Tailors shop, or a horse that is a shooing, shal not be di∣streined.

Publique quiet.

And therefore

54. Common error goeth for a Law.

An acquittance made by a Maior in his * 1.125 owne name onely (where the towne is in∣corporate by the name of Maior, Sherife, & Burgesses) shall bee allowed for good, if there bee an hundred precedents and more of like acquittances. And that is for com∣mon quietnesse.

Whether a common recouerie be a barre * 1.126 vnto an estate taile or no, is not to be dispu∣ted, because a great part of the inheritance of the Realme doth depend vpon it.

Of this kind are those Deconomickes.

The husband and the wife are one person.

And therefore

The wife is of the same condition with her husband.

Franck if he be free, Denisen if he be an * 1.127 English man, though she were a neif before or an alien borne.

55. They cannot sue one another, or make any grant one vnto the other, or such like.

If the (a) 1.128 woman marrie with her obli∣gor, the debt is extinct, and she shall neuer haue action against the Co-obligor (if ano∣ther were bound with him) because the suit against her husband, by enter-mariage was suspended. And therefore being a personal action, and suspended against one, it is dis∣charged against both.

So, if a feme sole baile goods to one, and marrie with the baile.

Likewise the husband cannot infeoffe * 1.129 his wife, but vpon a feoffement made vnto her by a stranger, he may deliuer seisin vn∣to her by Letter of Attornie; for thereby himselfe giueth nothing.

56. Vpon a ioynt purchase during the co∣uerture, either of them taketh the whole.

If the husband alien land &c. so giuen, * 1.130 she shall recouer the whole, in a Cui in vita after his death, and the warrantie of one of them or his ancestors, is a bar of the whole against them both.

And if a feoffement be made to the hus∣band * 1.131 and wife, and a third person; the third

person taketh one moiety, and the husband and wife the other moiety.

The husband is the womans head:

And therefore

58. All she hath is her husbands.

The personall things she hath are meer∣ly his; but reall things, whether land, rents, &c. or chattels reall, and things in action he hath onely in her right: yet so, as of re∣all chattels & things in action, he may dis∣pose at his pleasure, and shall haue the reall chattels if he ouer-liue. Of things in acti∣on, her selfe may dispose by will.

If Tenant in tail enfeoffe a woman and * 1.132 die, and his issue within age take her to wife, he shall be remitted, and the woman now hath nothing: for hee cannot sue any formedon in this case, vnlesse he will sue a∣gainst himselfe, because by the enter-mari∣age himselfe is seised in her right.

If one that hath a lease for yeares, grant * 1.133 his terme to a feme Couert, and another, or if a feme sole and another be Ioynt-tenants for yeeres, and shee take a husband, yet the estate of the feme and ioynture doth continue, so as the suruiuor of the wife; or of the other shall haue the whole: and if a stranger oust them, her husband and shee must ioyne in an eiectione firme, and the feme shall haue iudgement as well as the

husband: And (a) 1.134 in pleading he may say, That they are possessed in her right. Nei∣ther can the husband, where the wife hath a terme for yeeres, either deuise it to ano∣ther * 1.135 by his will (for she hath an estate in it before and at the time of his death, which preuenteth the deuisee) or grant a rent * 1.136 charge out of it, for she suruiuing is remit∣ted to the terme, and therefore shall auoid the charge, but by an expresse act he might in his life time haue giuen it away. But if a woman hauing chattels personall take a husband, the law deuesteth the propertie out of her, and vesteth it in her husband onely.

And if goods bee giuen to a feme Co∣uert, and another, the ioynter is straight way seuered, and the husband and the o∣ther are Tenants in common; and the ex∣cutors * 1.137 of the husband shall haue all the goods that were his wiues.

But in an action of debt vpon arrera∣ges * 1.138 of an accompt (where one was receiuer to the feme whilest she was sole) they both must ioyne, and that although the audi∣tors were assigned during the couerture for the verie cause of action, that is, the receipt (whereunto the assignement of auditors is but a thing pursuant) was in her right; yet the husbands release of an obligation * 1.139 made to the feme, or where goods were ta∣ken from her whilest she was sole, shall be good against the wife if he die. But if he die without making such a release, the wife

shall haue an action vpon the obligation, and not the executors of the husband: Likewise the wife suruiuing, or her execu∣tors * 1.140 if shee die, shall haue those things in action, and not the husband; or she may make her husband her executor, and then hee shall recouer them to her vse. But a * 1.141 lease for yeares, which the wife, shall bee the husbands, if shee die before him: for that is a thing in possession and not in action.

59. Her will is become his will, and sub∣iect vnto it.

Vpon a feoffement to a feme Couert, shee taketh nothing vnlesse her husband will agree; and where one is bound to en∣feoffe the husband and wife, the husbands refusall is the refusall of them both; but where the husband and wife are ioynt pur∣chasors, the husband may make a feoffe∣ment and liuery vpon the land, which shall worke a discontinuance, though the wife be in presence vpon the land and will not agree. If they bargaine and sell the wiues land by Indenture, and the vendee grant vnto them for the same a yeerely rent, her acceptance of this rent, after her husbands death, doth not barre her of the land, al∣though the acceptance be an agreement to the bargaine, but the bargaine being but a contract, is the bargaine of the husband onely, and not of the wife: if shee make

a release, obligation, or such like, it is meer∣ly voide. If both her husband and she baile goods to one, they shall not ioyne in an action of detinue, for it is onely his baile∣ment, and void as vnto her. In an accompt vpon a receit, by the hand of the plantiffes wife, the defendant may wage his law; hereupon it is that the wife can neuer an∣swer in any action without her husband. And if in an action of trespasse against them, the wife come in by Cepi corpus, and the husband doth not appeare, she must be let at large without any mainprise till her husband doe appeare: but hee appearing, may answer without her, therefore a pro∣tection cast by the husband serueth for the wife also, because she cannot answer with∣out him.

Last come the Morall rules.

60. The Law fauoureth right.

When two are in a house, or other tene∣ments, * 1.142 and one lay claime by one title, the other by an other title, the Law adiudgeth him in possession that hath the right to haue the tenements.

And therefore

61. Suffereth things against the princi∣ples of Law, rather than a man to be without his remedy.

A man that is outlawed may bring an * 1.143 action to reuerse it, and outlawry there is no plea.

The Tenant shall haue a repleuin against * 1.144 the Lord that did wrongfully distreine, though the Beasts bee come backe to him∣selfe, because hee can haue no action of trespasse against him.

A man (after that iudgement is passed a∣gainst * 1.145 him) shall plead against the King a Charter of pardon, or any such thing done meane betwixt the verdict and the iudg∣ment, because against the King hee can haue no Audita querela. Otherwise it is, a∣gainst a common person.

Hateth wrong.

So that

62. No man shall take a benefit of his owne wrong.

A man is bound to appeare before the * 1.146 Iustices at a certaine day, at which day he is in prison at the parties suit, so as he can∣not come, the bond is saued. Otherwise it is if he were in prison for felony, or any o∣ther misdemeanor, for that is his owne fault.

An Infants appeale shall not stay till his * 1.147 full age, for the defendant shall not haue aduantage of his owne wrong.

One in execution scapes, and the Gailor * 1.148

gets him againe, the party if hee will, may haue him to remaine in execution for him still, for the escape is his owne wrong.

And therefore,

63. Of it selfe preiudiceth no man.

If a feoffement be made to two ioyntly, one of them cannot deraigne the warranty * 1.149 without the other. Yet if a Villeine and a∣nother purchase ioyntly, and the Lord of the Villeine enter into a moitie, he may de∣raigne the warrantie alone, for his moitie: for there the seuerance groweth by act in law.

He that misdemeaneth authoritie, that * 1.150 law giueth him (as if one come into a Ta∣uerne, and will not goe out in seasonable time; or distreine for rent, and kill the di∣stresse) Shall be a wrong doer ab initio.

Otherwise it is, if hee misdemeane an au∣thoritie that another giueth him. As if I lend my horse to one to ride to Yorke, & he ride further, yet the riding to Yorke shall not be vnlawfull. Nor a generall action of trespasse lieth not against him vpon an ac∣cord vpon the case.

Especially for things that cannot bee im∣puted to his owne follie.

The Lord Chancellors seruant implea∣ded at the cōmon law, claimeth priuiledge * 1.151 of the Chancerie: and before it be discussed

whether he shall haue it or no, the Lord Chancellor dieth; yet his priuiledge is al∣lowable still, for the act of the Court to ad∣uise of it, shall not preiudice him.

Of rent a man shall haue an eiectment * 1.152 of ward before seisin: for the law counteth him in seisin, in as much as he cannot haue it before the day. Otherwise it is of land.

And therefore

64. Driueth not a man to shew that which by intendement he knoweth not.

A man may plead that he was chosen * 1.153 Knight for the Shire by the greatest num∣ber, without shewing the number: for the election may be by voices, or hands, or in other sort; hard to discerne the certaine number, and yet easie to see who had the greater number. * 1.154

One bound in an obligation to serue I. S. for vij. yeares in omnibus mandatis eius licitis, shall plead that he did serue him lawfully, without shewing what seruice or in what commandment: for no seruant can remem∣ber all. * 1.155

A man may auer a thing to be don by co∣uine, without shewing how the couin was: for couine is a secret thing contriued betweene two or three, to the preiudice of another.

Truth.

And therefore

65. It disfauoureth

Fraud and couine.

If a woman that hath good title of Do∣wer, cause I. S. to disseise the tenant of the * 1.156 l••••d, and recouereth her dower against I. S. yet this is no good estate of dower in her, for she is priuie to an vnlawfull act, which should be the meanes of her estate.

66. Vncertaine, whereby truth is inueig∣led.

A man grants all his trees and wood vp∣on * 1.157 Bacre, that may reasonably be spared; this is a void grant, vnlesse it be referred to •• ••hird persons iudgement, what may bee ••••••red.

If two seuerall Writs of one selfe same * 1.158 thing against one selfe same man, be retur∣ned at one selfe same time: both shal abate.

67. Variance.

If the Writ varie from the Obligation, * 1.159 ••••other specialty in name, surname, or such like, in an action of debt or annuitie brought vpon it; or the Court varie from the Writ. As in an action of debt of xx. l. * 1.160 ••••d declare but a debt of x. l. both shall ••••••te.

An (a) 1.161 essoyne or (b) 1.162 protection varying from the originall Writ in the quantitie of the Tenancie, or the name of the partie, * 1.163 shall be quashed: and the Chancellors ser∣uant bringing a Writ of priuiledge varying from the originall Writ (as if the original be a Writ of Trespasse, and the priuiledge in placito debiti, or the originall an Action of Debt of 44. l. and the Writ of priuiledge in placito debiti of 42. l.) it shall bee disal∣lowed.

Departure also when one fortifyeth not the matter of his plea that went before, but cōmeth in with a new matter, is a kinde of variance, & maketh the plea naught. As if the reioinder be a matter puisne vnderneath the matter of his barre, and not aboue, and going before it: As in an action of Tres∣passe, the defendant pleadeth a discent vn∣to him of the land, the plaintife saith, that after the discent the defendant infeoffed him: Now if the defendant reioyne, that the feoffement was vpon condition, and he entred for the condition broken; this is a departure: for the matter of the barre (that is, the discent) is before the matter of the reioynder, that is to say, the entrie for the condition broken, whereby the feofme•• is auoyded. So if in an assise the defenda•• pleadeth the feoffment of I. S. & the plain¦tife make title to himselfe by discent, an•• that he was disseised by I. S. who infeoffe•• the defendant: or that he infeoffed I. S. vp¦on condition, who brake the condition, &

afterwards infeoffed the defendant &c. Now if the defendant say, that after the disseisin (or condition broken) and after the feoffement of I. S. to the defendant, the plaintife did release to the defendant, or confirme the state of the defendant, this is a departure, for that is a matter that grow∣eth after the feoffement pleaded in barre. But if he plead such a release or confirma∣tion from the plaintife to I. S. that is no de∣parture; for it is a matter before the feoffe∣ment, or in an action of Trespas for goods, if the defendant in title himselfe by the gift of I. S. and the plaintife saith that himselfe was possessed till I. S. tooke them from him and gaue them to the defendant Now the defendant may say, that after the taking, the plaintife gaue them to I. S. who gaue them to the defendant: For although the defendant might haue pleaded these things at the beginning, yet, in asmuch as it is pursuing, and fortifieth his barre, and no puisne matter vnderneath the title of his barre, but eigne, and aboue the matter of ••is barre, therefore it is no departure. So a plea in a barre which is intendible at the Common Law cannot be maintained by a ••atter of custome or by Statute law. As in 〈◊〉〈◊〉 assise the Tenant pleadeth in barre a de∣uise vnto himselfe of the land, being deui∣••••ble by the custome: the plaintife saith, ••hat the Deuisor was within age at the ••••me of the deuisee. Now if the Te∣nant say, That by the Custome there, an

infant of fifteene yeares of age may make a deuise; this is a departure. For the cu∣stome pleaded in barre shall be intended of those that may make a deuise by the Com∣mon law. So if in an action of Trespasse the defendant plead in barre a lease for fif∣tie yeares from a house of Religion, & the plaintife auoyde it, by reason it was made within a yeare before the dissolution, and so void by the Statute 31 H. 8. Now if the defendant will alleadge, That by the same Statute it is prouided, that all such Lease•• shall be good for xxj. yeares, and so main∣taine the Lease to bee good for so many yeares, this is a departure. Or if one plead a Fine, and that being auoided because the parties to the fine had nothing, will main∣taine the Fine to be good by the Statute 1. R. 3. because hee that leuied the Fine, was Cesti qui vse.

68. Contrarietie.

An Obligation is made Soluendum nu••∣quam. * 1.164 This Soluendum is void, and the thing presently due.

A. is bound to B. Soluendum eidem A•• * 1.165 This is a good Obligation, and the Solun¦dum void: for the plaintife may declare vp¦on a Soluendum to himselfe.

In a Trespasse de domo fracta & inuris ei••¦dem * 1.166 domus fractis. The defendant canno•• pleade not guiltie to the breaking of th•• house, & iustifie the breaking of the wal••

for the house and walls are all one, and hee cannot of the same thing both iustifie and plead not guiltie: for by the iustification, he ••cknowledgeth himselfe guiltie. So one is contrarie to another.

A feoffment in fee is made of two acres, vnto two men habendum one acre to one * 1.167 man, and the other acre to the other man. This is a void habendum: for the premisses giue him an interest through both acres, & the habendum excludeth him from hauing any thing to doe in one.

A lease of a mannor excepting the serui∣ces, the exception is void: for it is parcell of the thing let.

And therefore

69. It will not driue a man to iustifie that he goeth about to defeat.

He that bringeth an assise of the master∣ship * 1.168 of a Chappell against I. S. shall not need to name I. S. the master of the Chap∣pell, because the plaintife is to disproue his interest.

Diligence

And therefore

70. It hateth

Follie, and Negligence.

After a recouerie in a writ of right, if a ••••••anger that hath right, lay not to his * 1.169 claime within a yeare and a day, he is barred

for euer. For vigilantibus & non dormientib▪ iura subueniunt.

A discent cast during the couerture (where the wife is disseised) barreth her not of her * 1.170 entrie after the husbands death. But if a feme sole be disseised, and then taketh a husband, there a discent during the couer∣ture taketh away her entrie: for it was her follie to take such a husband that entered not in time.

Spéeding of mens Causes.

And therefore

71. It hateth

Delayes.

He that pleadeth a Record in delay, (a•• to proue the plaintif excommunicate) must * 1.171 haue it readie to shew. Otherwise it is, if he plead it in barre.

In dilatorie pleas both defendants must ioyne. * 1.172

A plea in barre that is dilatorie, must be good to euerie common entent. * 1.173

72. Vnnecessarie circumstances.

One that is in Court readie to ioyn wit•• the defendant, may doe it without Proces▪ * 1.174 As the vouchee the plaintifes lessor beein•• praied in aid of, when the def. in a repleui•• auoweth vpon him, or the mesne when the Lord paramount auoweth vpon him. Bu•• ioynder in aid cannot be by Attorny with¦out Processe.

One that is a debtor to the King of Re∣••ord * 1.175 in the Exchequer, if he be seene in the Court, may be brought in to answer with∣out Processe.

73. Circuit of Action.

When a father infeoffeth his sonne and * 1.176 heire with warrantie, and dieth. Now the son in a praecipe brought against him, may vouch the feoffor of his father: for the Law will not suffer to vouch himselfe, & when he commeth in as vouchee, then to deraign the first Warrantie for the Circuit of vou∣cher.

Vpon the grant of a Ward with warran∣tie, the defendant in a Writ of Right of Ward, may rebutt the plaintif by that war∣rantie, and shall not be driuen to bring an Action of Couenant for auoyding circuit of action.

So in an action of wast vpon a Lease for yeares by deede. And in the same deed the lessor granteth to the lessee, that hee shall not be impeached of wast; the lessee may plead this in an action of wast.

The Law construeth things

With equitie and moderation.

And therefore

74. Restraineth a generall act, if there be any mischiefe or inconuenience in it.

Tenant for life lets to another for life, * 1.177

without expressing whose liues, it shall bee taken for the lessors owne life; for else it were a forfeiture of his estate.

A house that hath Copyholds and other lands vsually occupied with it, is let for yeares, with the lands appertaining; yet the Copyholds passe not without speciall na∣ming: for then it were a forfeiture of them.

A Corodie granted to one and his ser∣uant to sitte at his Messe, he cannot bring a seruant that hath some filthie or noisome disease.

Estouers granted one of a Mannour, the grantee shall not cut downe fruit trees.

A Common graunted to one for all his beasts, yet he shall not haue Common for Goates, nor Geese, nor other beasts, not Commonable.

A feoffment of all his lands in the town of D with Common in omnibus terris suis, this Common shal be intended in D. only, and not elsewhere.

75 Moderateth the strictnesse of the Law it selfe.

By Abridging, diminishing, and taking away the seueritie of it, and mollifying the hardnesse thereof. A moral vertue as Plow∣den calleth, and may appeare by Aristotle, who treating of it defineth it, A certaine correction of the Law, wherein it is any way Wanting, because of the generalitie of it.

It is no trespasse for a man to beate his Apprentice, which is reasonable correction.

No more is it to carrie away a mans wife against his will, to a lawfull end. As to sue a diuorce against her husband, or to haue the peace of him before a Iustice of peace.

A great part of the depth and learning of the Law (if you goe to the primatiue reason of it) standeth vpon this and that other kind of equitie that went before. Of both which Plowden in that case discour∣seth at large, and well setteth forth the na∣ture of them, so farre as concerneth the in∣terpretations of Statutes. But they haue a further & more shining vse in the expositi∣on of Common Law it selfe, as in the cases before put.

To the best.

And therefore

76. Euerie act to be lawfull when it stan∣deth indifferent to be lawfull or not.

If the Lessor come vpon the ground, it shall be intended that he came to see if wast were done,

If the disseisee come, it shalbe taken that he meant to be remitted

In an action of Trespasse, two issues are * 1.178 ioyned triable in two counties, one in Lon∣don, an other in Middlesexe only (without saying which of the issues it should trie;) this shall be taken to trie the issue in Mid. onely: for so the venire facias is lawfull, &

not in both counties; which is against law. And therefore it is a discontinuance of the issue in London, & not a miscontinuance.

Notes

• * 1.1

  Cic. l. 1. de legibus.
• * 1.2

  Aug. lib. 9. de Ci∣vitat. dei.
• * 1.3

  34 H. 6. 40. P••••sot. A••••els leys que eux de St. eg∣lise ont en auncient escripture, covient pur nous a don•••• credence: car ce•• est common ley, sur que touts manner leys sont fondues, 4 Eliz. 265.
• * 1.4

  F. N. B. 17. f.
• * 1.5

  1 Eliz. Dy. 16••
• * 1.6

  12 E. 4. 8.
• * 1.7

  32. H 8. Dy. 46. b.
• * 1.8

  9. E. 4. 48.
• * 1.9

  5. E. 4. 8. b.
• * 1.10

  7. Eliz. 293. b.
• * 1.11

  13. Eliz. 401.
• * 1.12

  13. E. 4. 10. b.
• * 1.13

  14. H. 7. 2.
• * 1.14

  44. E. 3. 14. b.
• * 1.15

  14. Ass. pl. 20.
• * 1.16

  21. E. 4. 68. b.
• * 1.17

  3. E. 3. 84.
• * 1.18

  33. Ass. pl. 7.
• * 1.19

  10. Eliz. Dy. 266. b.
• * 1.20

  Litlet.
• * 1.21

  28. Ass. pl. 4.
• * 1.22

  2. E. 4. 16.
• * 1.23

  19. E. 4. 1. b.
• * 1.24

  5. H. 7. 33.
• * 1.25

  4. H. 7. 7. b.
• * 1.26

  10. El. 344.
• * 1.27

  2. & 3. El. Dy. 187.
• * 1.28

  31. E. 3. Ioynder in ayd. 10.
• * 1.29

  19. E. 4. 3.
• * 1.30

  50. ass. pl. 2.
• * 1.31

  3. E. 374. b.
• * 1.32

  49. E. 3. 8.
• * 1.33

  Lit.
• * 1.34

  12. El. 381.
• * 1.35

  7. E. 4. 11.
• * 1.36

  12. El. 379.
• * 1.37

  19. H. 8. Br. in∣cidents 34.
• * 1.38

  31. E. 3. ass. 441.
• * 1.39

  6. E. 6. Dy. 72. b.
• * 1.40

  F. N. B. 21. b.
• * 1.41

  42. E. 3. 3.
• * 1.42

  7. H. 4. 19.
• * 1.43

  22 E. 4. 34.
• * 1.44

  12. H. 7. 25.
• * 1.45

  7. H. 4. 36.
• * 1.46

  11. E. 4. 1.
• * 1.47

  12. El. 179.
• * 1.48

  Br. licences 25.
• * 1.49

  19. H 8. 10.
• * 1.50

  12. H. 8. 12.
• * 1.51

  1. & 2. P. & M. 114.
• * 1.52

  26. Ass. pl. 66.
• * 1.53

  14. H. 8. 6.
• * 1.54

  1. & 2. P. & M. 104.
• * 1.55

  11. E 42.
• * 1.56

  13. H. 8. 22.
• * 1.57

  Lit. 147. b.
• * 1.58

  8. H. 6. 29.
• * 1.59

  3. El. Dy. 188.
• * 1.60

  4. M. B. com. 25.
• * 1.61

  (c) 27. Eliz. Coo 3. 136. S•••• Willi Herberts case.
• * 1.62

  D 26. als pl. 37.
• * 1.63

  Bract. l. 1. cap. 3.
• (a) 1.64

  23. H 8. Fitz.
• (b) 1.65

  C••••. 4. 2••▪
• * 1.66

  18 E. 38.
• * 1.67

  3 & 4 P. & M. Dy. 150. b.
• * 1.68

  21 H. 7. 5.
• * 1.69

  33. H. 8. Dy. 50.
• * 1.70

  11. H. 4. 31.
• * 1.71

  10. El. 323. b.
• * 1.72

  3. El. 238.
• * 1.73

  40 Ass. pl. 25.
• * 1.74

  7. H. 6. 19. b.
• * 1.75

  26, H. 8. Dy. 7. b.
• * 1.76

  26 El Moline.
• * 1.77

  30. ass. pl. 8.
• (c) 1.78

  The rule of the Register.
• * 1.79

  Ibid.
• * 1.80

  Ibid.
• * 1.81

  ibid.
• * 1.82

  1, El. 198.
• * 1.83

  3 E. 3. 88.
• * 1.84

  14. H. 7. 5. K••ble.
• * 1.85

  3. El. 296.
• * 1.86

  13. H. 7. 13.
• * 1.87

  1•• H. 7. 25. b.
• * 1.88

  11 H. 7. 12 b.
• * 1.89

  35. H 6. 58. b.
• * 1.90

  4 E. 6. 68. b.
• (a) 1.91

  1. E. 5. 2.
• * 1.92

  9. E. 4. 4. b.
• (b) 1.93

  28. H. 8. Dy. 22.
• (c) 1.94

  Park. d.
• * 1.95

  ••4. E. 4. ••.
• * 1.96

  Park. 19. ••.
• * 1.97

  21. H. 7. 24. ••.
• * 1.98

  33. H. 6. 10. b.
• * 1.99

  32. H. 8 Br. Dar∣retnement 18.
• * 1.100

  20. H. 7. 11.
• * 1.101

  15. H. 7. 10.
• * 1.102

  1. H. 4. 1.
• * 1.103

  41. E. 3. 11. b.
• * 1.104

  Br. executor 172.
• * 1.105

  4. E. 6, 19.
• * 1.106

  Br. for. Mar. 12.
• * 1.107

  40. E. 3. 30. b.
• * 1.108

  41. E. 3. 28.
• * 1.109

  22. Ass. pl. 64.
• * 1.110

  49. E. 3. 15.
• * 1.111

  Littlet.
• * 1.112

  2. & 3. P. & M. 134. ••. 29. Ass. pl. 23.
• * 1.113

  a. 2. H. 7. 5.
• * 1.114

  (b) 21. E. 3. 7.
• * 1.115

  (c) 11. H. 4. 3.
• * 1.116

  (d) 28. H. s Dyer 29. Fitz. N. B. 34. ••.
• * 1.117

  Lit. 97.
• * 1.118

  7. E. 3 darrein pre∣sentment 2.
• * 1.119

  Fitz. N. B. 31. ••
• * 1.120

  1. Mar. 172. b.
• * 1.121

  29. H. 8. Dy. 36. b.
• * 1.122

  8. E. 4. 18. b.
• * 1.123

  14. H. 8. 25.
• * 1.124

  22. E. 4. 49.
• * 1.125

  ••. R. 3. 7.
• * 1.126

  Manxels case f. 2.
• * 1.127

  Fitz. N. B 78. ••. Abridgement of as∣sises {per} Br. denisē 2.
• (a) 1.128

  21. H. 7. 29. b.
• * 1.129

  Park. 40.
• * 1.130

  39. H. 6. 45. 21. R. 2. iudg. 63.
• * 1.131

  Littlet. 65.
• * 1.132

  Littlet. 148.
• * 1.133

  ••4. Eliz. Ploy. 418.
• (a) 1.134

  1. Eliz. Ploy. 191.
• * 1.135

  14. Eliz. Ploy. 419.
• * 1.136

  14. Eliz. Ploy. Ibid.
• * 1.137

  ••1. H. 7. 29.
• * 1.138

  16. E. 4 8.
• * 1.139

  7. H. 6. 1.
• * 1.140

  39. H. 6. 27.
• * 1.141

  ••. Eliz. Ploy. 191
• * 1.142

  Littlet. 158.
• * 1.143

  4. H. 7. 40.
• * 1.144

  F. N. B. 69. h.
• * 1.145

  11. H. 7. 10.
• * 1.146

  31. H. 6. bar. 60.
• * 1.147

  27. H. 8. 11. & Br. couert. 2.
• * 1.148

  13. H. 7. 1.
• * 1.149

  48. E. 3. 17.
• * 1.150

  12. E. 48.
• * 1.151

  35. H. 6. 3.
• * 1.152

  33. H. 8. Br.
• * 1.153

  2. Mar. 128.
• * 1.154

  10. E. 4. 15.
• * 1.155

  4 E. 6. 46.
• * 1.156

  18. H. 8. 5.
• * 1.157

  1. Mar. Dy. 91.
• * 1.158

  Manxels case fol. 10. b.
• * 1.159

  11. E. 4. 2.
• * 1.160

  8. E. 4. 2. b.
• (a) 1.161

  4. ass. pl. 2.
• (b) 1.162

  32. H. 6. 3.
• * 1.163

  (c) 7. H. 6. 22.
• * 1.164

  21. E. 4 36.
• * 1.165

  4. E. 4. 29.
• * 1.166

  ••1. H. 7. 21. b.
• * 1.167

  2. & 3. P. & M. 153.
• * 1.168

  10. H. 7. 9.
• * 1.169

  5. E. 3. 222. Her••••.
• * 1.170

  Litt. 95.
• * 1.171

  3. H. 6. 15. b.
• * 1.172

  12. H. 7. 3.
• * 1.173

  8. H. 7. 9.
• * 1.174

  2. H. 6. 1. b.
• * 1.175

  1. H. 6. 4. b.
• * 1.176

  Manxels case. fol. 7. b.
• * 1.177

  Litt. 110▪
• * 1.178

  11 H. 7. 5.