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. 4.

Of Law Constructions that are naturall.

THVS farre of Rules drawne from other sciences. There follow those that are proper to our selues: which we call Law-constructions. And are naturall or fained.

Of the first sort wee haue two notable grounds.

Law construeth things, Reasonably.

And therefore

77. With a reasonable intent.

A feoffement by deed of a Mannor, with auowson appendant, and no liuerie made, the auowson passeth not: yet they may passe without liuery, but the meaning was, the mannor and it should passe together.

A bargaine and sale of land, and a reuer∣sion by deede not inrolled, the reuersion passeth not no more than the land, though the deed without inrolment may passe the

reuersion: but it was meant they should passe together.

One reciting by his deed, that where by prescription he hath vsed to finde a Chap∣lein, because some controuersie hath grown of it, graunteth by the same deed to doe it: this determineth not the prescription, for the intent of the deed (reciting the prescrip∣tion) was to confirme it, and not to make a new grant.

78. According to the effect.

A deed deliuered by an infant, cannot be deliuered again at his full age: for it tooke some effect before, and was but voydable.

But a deede deliuered by a feme Couert, or a release deliuered to one that hath no∣thing in the land, may bee deliuered againe (viz.) when shee commeth to be sole, or the partie to haue somewhat in the Land: for the first deliuery was meerely void, & took no effect at all.

So that

79. Hee that cannot haue the effect of a thing, shall not haue the thing it selfe.

The King shall not be receiued vpon de∣fault of Tenāt for life, because the demand cannot haue the effect of the receit. viz. to count against him: which none can doe a∣gainst the King, but sue to him by petition.

Two Abbots cannot bee Ioyntenants:

for they cannot haue the effect of it, which is suruiuorship.

80. To the most validitie.

Tenant in taile makes a lease for life, this shall be intended the Lessees life.

An annuitie granted pro consilio impenden∣do, or a feoffement ad erudiendum filium, or ad soluendum x. s. is a condition, without words conditionall, because else the partie hath no remedie.

And therefore

81. When many ioyne in an act, it maketh it his act that may doe it.

A vse limitted to begin when ones eldest sonne is married by I. S. the sonne (beeing in ward to the King) is married by the king and I. S. yet no vse riseth, for it is the sole marriage of the King.

A patron of a Church suffereth an vsur∣pation by sixe monethes, and then grants an annuitie to I. S. till he doe promote him to a benefice After, he & the vsurper ioin in a presentment of I. S. yet the annuity is not determined.

The disseisee and the heire of the dissei∣sor, in by discent make a feoffment by one deede, and Liuerie; this is the feoffement of the heire onely, and confirmation of the disseisee.

82. When two titles concurre, the best is preferrred.

One is disseised, and the disseisor lets the land to the disseisee for terme of yeares, or at will: now if he enter, the Law shall say, he is in of his ancient and best title.

83. Things to bee done by him that hath most skill to doe them.

An Obligation vpon condition, that a Bell shall be brought by the Obligee, to the Obligors house (being a Brasier) and there weighed and put in fire: and then the Ob∣ligor to make a Tennor of it, tunable with other bells.

The Obligor must weigh it, & put it in fire (not being expressed who shall do it) for it belongs to his office, & therefore he hath most skill to doe it.

So vpon condition that the Obligee shal bring to the Obligors shop (being a tailor) three yards of cloth which shall be shapen, and the Obligor to make the Obligee a gowne of it: the Obligor must shape it.

A marchant agreeth with the Kings col∣lectors, that his marchādise shal be weigh∣ed at the Kings beame, and the King shall haue his subsidie as it riseth: the Collector must weighe it.

Issues ioined must be tried by them that haue most skill. (videlicet.) An issue vpon

the law, by the Iustices learned in the law.

Attendance vpon the King (Scotland) in warre xl. dayes (as tenant by escuage must) by certificate of the kings Marshall.

Disseisin of an office in the Common-place, or rasing of a Record there, by the Fi∣lizers and Attournies, attendant in that Court.

84. Void things good to some purpose.

Lessee for twentie yeares takes a Lease for x. yeares (to begin presently) vpon con∣dition if such a thing be not done, to bee void, though the second lease bee void vp∣on the condition broken, yet the surrender remaineth good.

A feoffement vpon condition to be void, as if it had neuer beene, yet the feoffee shall haue an action of trespas (after the feoffors entry for the condition broken) for a trespas done by the Feoffor before.

85. One thing to enure as another.

The King grants to a Towne easdem li∣bertates quas London habet, it shall be enten∣ded the like. The Lessor enfeoffeth his Les∣see for life, by dedi & concessi, this shall en∣ure as a confirmation.

One grants the third presentment to an aduouson, and dieth: his heire shall pre∣sent twice, and his wife shall haue the third for her dower, and so the grantee shall

haue but the fourth.

The King pardoneth one the making of a Bridge; this is onely good for the fine: but yet hee must make the Bridge, because the Kings subiects haue interest in it.

86. In one thing, all things pursuant to be included.

One makes a lease, excepting a close, wood, &c. now the Law giueth him a way to come to it.

Where the King is to haue mines, the Law giueth him power to dig in the Land.

Vpon a grant of Trees, the Grantee may come vpon the Land to cut them downe, & with his Cariage to carry them through the land. And the vendee of all ones fishes in his pond, may iustifie the comming vp∣on the bankes to fish, but not the digging of a trench to let out the water to take the fish, for he may take them by nets, and o∣ther deuises. But if there were no other meanes to take them, hee might digge a trench.

87. Strongest against him that doth them.

Two Tenants in common grant a rent of twenty shillings, the grantee shall haue forty shillings. But if they reserue twen∣ty shillings vpon a lease, they shall haue onely one twenty shillings.

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One bound to pay I. S. twenty pound, cetra festum natalis domini, it is no plea to say he hath paid it, but he must shew when, else it shall bee taken hee paid it after the feast.

And therefore

88. A man shall not qualifie his owne act.

The obligee releaseth his debt till Micha∣elmasse, the debt is gone for euer.

A reuersion of three acres of land is granted, the tenant atturnes for one, it is a good atturnment for all.

A parson makes a lease for xl. yeares, the patron and Ordinarie confirme it for xx. This is a good confirmation for the whole xl. yeares.

The construction which otherwise law would make, is altered by the parties.

89. Speciall agreement.

Lessee for yeares is excused for wast, if the houses bee blowne downe by sudden storme or tempest. But in that case if he co∣uenant to keepe reparations, an action of Couenant lieth against him.

Two Ioyntenants exchange an acre of land with another, they should hold the land taken in exchange ioyntly. But if they exchange to haue that acre in common be∣tween them, they shall be Tenants in com∣mon.

••••. Speciall words.

A lease reseruing a rent, the heire of the ••••ssor, after his death, shall haue the rent: otherwise, if the lease be reseruing to the les∣sor.

A feoffement in fee to one and his heires with warrantie to the feoffee. This warran∣tie goeth not to the heire.

91. Surplusage of words.

The Ordinarie may refuse him generally, that demands his clergie without shewing cause. But if he shew cause which our law alloweth not (as because hee hath not his ••••••sure or ornamentum Clericale &c.) he shall pay a fine, and yet be driuen to take the Fe∣lon.

In a valore maritagij, & count of a tender of mariage to the def. The tender is trauer∣sable, if it were not before.

An information vpon a statute made such a day, & the day mistaken, is naught, though he needed not to haue recited the day.

In an action of Debt by I. S. Parson of ••••. no such towne as D. is a good plea: yet ••e needed not to haue named himself par∣son of D.

A writ of forging diuersa facta & muni∣••enta and count but of one, the Writ shall ••••ate: yet he needed not to haue said in his Writ, but onely factum.

Notes

• ••1. H 7. 5.
• 1 H. 6 4.
• 4 E••••z 241.
• Litt.
• Litt. 140. b.
• 2. & 3. El. Dy. 191.
• Litt••let.
• Littl.
• 9. E. 4. ••.
• 4. E. 6. 15.
• 4. El. 230▪ b.
• L••••tl•••• 21.
• 11. E. 4 3. 6.
• 1. & 2. P. & M. 107.
• 10. H. 7. 22.
• 21. H. 7. 13.
• 15. H. 7. 7.
• 37. H. 6. 4.
• 14. H. 8. 1.
• 10. E. 317.
• 2. R. 2. barr. 337.
• 2. & 3. P. & M. 140. b. & 161. b.
• 2. M. 104.
• 21 H. 7. 23. b.
• 18. E. 3. Ʋar. 53.
• 17. El. Dy. 339.
• 40. E. 3 5.
• Park 55. f. & ••6▪ g.
• 27. H. 8. 19.
• 30. H. 8. Dy. 42. b.
• 9. E. 4. 28. b. Lit.
• 9. El. Dy. 255. ••.
• 6. E. 6. 84.