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the conusee, and in both fine and recovery there is error; this fine is Janus bifrons, and will look forwards, to bar him in the writ of error brought of the recovery: and therefore it will come to the reason of the first cause of the attainder, that he must reply, that he hath a writ of error also depending of the same fine, and so demand judgment. 16 E. a Fitz To return to our first purpose, like
age, 45. jaw js j( jf tenant in tail of two acres make two several discontinuances to two several persons for life rendering, and bring the formedon of both, and in formedon brought of white acre the reversion and rent reserved upon black acre is pleaded, and so contrary. I take it to be a good replication, that he hath formedon also upon that depending, whereunto the tenant hath pleaded the descent of the reversion of white acre; and so neither shall be a bar: and yet there is no doubt but if in a formedon the warrant of tenant in tail with assets be pleaded, it is a replication for the issue to say, that a praecipe dependeth brought by I. S. to evict the assets.
But the former case standeth upon the particular reason before mentioned.
Verba fortius accipiuntur contra proferentem.
This rule, that a man's deeds and his words shall be taken strongliest against himself, though it be one of the most common grounds of the law, it is notwithstanding a rule drawn out of the depth of reason; for, first, it is a schoolmaster of wisdom and diligence in making men watchful in their own business; next it is author of much quiet and certainty, and that in two sorts; first, because it favoureth acts and conveyances executed, taking them still beneficially for the grantees and possessors: and secondly, because it makes an end of many questions and doubts about construction of words; for if the labour were only to pick out the intention of the parties, every judge would have a several sense; whereas this rule doth give them a sway to take the law more certainly one way.
But this rule, as all other rules which are very general, is but a sound in the air, and cometh in sometimes to help and make up other reasons without any great instruction or direction; except it be duly conceived in point of difference, where it taketh place, and where not. And first we will examine it in grants, and then in pleadings.
The force of this rule is in three things, in ambiguity of words, in implication of matter, and reducing and qualifying the exposition of such grants as were against the law, if they were taken according to their words.
„ T> - .„ And therefore if I. S. submit himself
2 R. 3. IS
21 H. 7.2a to arbitrement of all actions and suits between him and I. D. and I. N. it rests ambiguous whether this submission shall be intended collective" of joint actions only, or distributive of several actions also; but because the words shall be strongliest taken against I. S. that speaks them, it shall be understood of both: for if I. S.
had submitted himself to arbitrement of all actions and suits which he hath now depending, except it be such as are between him and I. D. and I. N. now it shall be understood collective only of joint actions, because in the other case large construction was hardest against him that speaks, and in this case strict construction is hardest.
So if I grant ten pounds rent to ba- 8tap 10 ron and feme, and if the baron die that the feme shall have three pounds rent, because these words rest ambiguous whether I intend three pounds by way of increase, or three pounds by way of restraint and abatement of the former rent often pounds, it shall be taken strongliest against me that am the grantor, that is, three pounds addition to the ten pounds: but if 1 had let lands to baron and feme for three lives, reserving ten pounds per annum, and, if the baron die, reddendum three pounds; this shall be taken contrary to the former case, to abridge my rent only to three pounds.
So if I demise " omnes boscos meos )4H & in villa de Dale" for years, this passeth 2s H. a the soil; but if I demise all my lands in Dale "exceptis boscis," this extendeth to the trees only, and not to the soil.
So if I sow my land with corn, and let it for years, the corn passeth to the lessee, if I except it not; but if I make a lease for life to I. S. upon condition that upon request he shall make me a lease for years, and I. S. sow the ground, and then I make request, I. S. may well make me a lease excepting his corn, and not break the condition.
So if I have free warren in my own g H 9 j land, and let my land for life, not men- w H 6 34.
28 H A
tioning my warren, yet the lessee by Dy.ai 6. implication shall have the warren discharged and extinct during his lease: but if I had let the land " una cum libera garrena," excepting white acre, there the warren is not by implication reserved unto me either to be enjoyed or to be extinguished; but the lessee shall have the warren against me in white acre.
So if I. S. hold of me by fealty and 39 Ass.pl. so. rent only, and I grant the rent, not speaking of the fealty; yet the fealty by implication shall pass, because my grant shall be taken strongly as of rent service, and not of rent secke.
Otherwise had it been if the seigni- 44 Ed. a is
ory had been by homage, fealty, and
rent, because of the dignity of the service, which
could not have passed by intendment by the grant
of the rent: but if I be seised of the manor of Dale
in fee, whereof I. S. holds bv fealty and „ . , „ ', r , - '. 26 Ass. pl 66.
rent, and I grant the manor, excepting
the rent of I. S. there the fealty shall pass to the grantee, and I shall have but a rent secke.
So in grants against the law, if I give land to I. S. and his heirs males, this is a good fee-simple, which is a larger estate than the words seem to intend, and the word "males" is void. But if I make a gift in tail, reserving rent to me and the heirs of my body, the words " of my body" are not void, and so leave it a rent in fee-simple; but the words "heirs and all" are void, and leaves that hat a rent for life; except that you will say, it is bat a limitation to any my heir in fee-simple which shall be heir of my body; for it cannot be a rent in tail by reservation.
But if I give lands with my daughter
45 24 it.290 'n frank marriage, the remainder to
I. S. and his heirs, this grant cannot be good in all parts, according to the words: for it is incident to the nature of a gift in frank marriage, that the donee hold of the donor; and therefore my deed shall be taken so strongly against myself, that rather than the remainder shall be void, the frank marriage, though it be first placed in the deed, shall be void as a frank marriage.
But if I give land in frank marriage,
26H\sL pi 86 reserv'no t0 me ar,d my heirs ten pounds rent, now the frank marriage stands good, and the reservation is void, because it is a limitation of a benefit to myself, and not to a stranger.
So if I let white acre, black acre, and green acre to I. S. excepting white acre, this exception is void, because it is repugnant; but if I let the three acres aforesaid, reddendo twenty shillings rent, viz. for white acre ten shillings, and for black acre ten shillings, I shall not distrain at all in green acre, but that shall be discharged of my rent.
46 E a 18 So if I grant a rent to I. S. and his
heirs out of my manor of Dale, "et obligo manerium pnedictum et omnia bona et catalla mea super manerium prredictum existentia ad distringendum per ballivos domini regis:" this limitation of the distress to the king's bailiffs is void, and it is good to give a power of distress to I. S. the grantee, and his bailiffs.
But if I give land in tail " tenendo de capitalibus dominis per redditum viginti solidorum per fidelitatem:" this limitation of tenure to the chief lord is void; but it shall not be good, as in the other case, to make a reservation of twenty shillings good unto myself; but it shall be utterly void, as if no reservation at all had been made: and if the truth be that I, that am the donor, hold of the lord paramount by ten shillings only, then there shall be ten shillings only intended to be reserved upon the gift in tail as for ovelty. •21 Ed 3. 49. So if I give land to I. S. and the
3iet*>H heirs of his bodv, and for default of 8. Dyer 46 , . „ ,'" . ,.
Plow. Co 37. such issue "quod tenementum prsedic
33 H. 6.34. tum revertatur ad I. N." yet these words of reversion will carry a remainder to a stranger. But if I let white acre to I. S. excepting ten shillings rent, these words of exception to mine own benefit shall never inure to words of reservation. But now it is to be noted, that this rule is the rule which is last to be resorted to, and is never to be relied upon but where all other rules of exposition of words fail: and if any other rule come in place, this giveth place. And that is a point worthy to be observed generally in the rules of the law, that when they encounter and cross one another in any case, that be understood which the law holdeth worthier, and to be preferred; and it is in this particular very notable to consider, that this being a rule of some strictness and rigor, doth not, as it were,
his office, but in absence of other rules which are of some equity and humanity; which rules you shall find afterwards set down with their expositions and limitations.
But now to give a taste of them to this present purpose: it is a rule, that general words shall never be stretched to foreign intendment, which the civilians utter thus: "Verba generalia restringuntur ad habilitatem persona?, vel ad aptitudinem rei."
Therefore if a man grant to another u Asa ^ SJ common "intra metas et bundas villa? de Dale," and part of the ville is his several, and part is his waste and common; the grantee shall not have common in the several: and yet that is the strongest exposition against the grantor.
So it is a rule, "Verba ita sunt in
Lit, cap. cond.
10 Ed. 4. 1.
telligenda, ut res magis valeat, quam pereat:" and therefore if I give land to I. S. and his heirs "reddendo qninque libros annuatim" to I. D. and his heirs, this implies a condition to me that am the grantor; yet it were a stronger exposition against me, to say the limitation should be void, and the feoffment absolute.
So it is a rule, that the law will not intend a wrong, which the civilians utter thus: "Ea est accipienda interpretatio, qua? vitio caret." And therefore if the executors of I. S. grant " omnia bona et catalla sua," the goods which they have as executors, will not pass, because non constat whether it may not be a devastation, and so a wrong; and yet against the trespasser that taketh them out of their possession, they shall declare "quod bona sua cepit."
So it is a rule, words are so to be understood that they work somewhat, and be not idle and frivolous: "Verba aliquid operari debent, verba cum efFectu sunt accipienda.". And therefore if I bargain and sell you four parts of my manor of Dale, and say not in how many parts to be divided, this shall be construed four parts of five, and not of six or seven, &c. because that it is the strongest against me; but on the other side, it shall not be intended four parts of four parts, that is, whole of four quarters; and yet that were strongest of all, but then the words were idle and of none effect.
So it is a rule, "Divinatio non in- 3H 6 Jq terpretatio est, qua? omnino recedit a litera:" and therefore if I have a free rent or free farm-rent issuing out of white acre of ten shillings, and I reciting the same reservation do grant to I. S. the rent of five shillings "percipiend' de reddit' pra>dict' et de omnibus terris et tenenientis meis in Dale," with a clause of distress, although there be attuinement, yet nothing passeth out of my former; and yet that were strongest against me to have it a double rent, or grant of part of that rent with an enlargement of a distress in the other land, but for that it is against the words, because "copulatio verborum indicat exceptionem in eodem sensu," and the word de, anglice out of, may be taken in two senses, that is, eit'aer as a greater sum out of a less, or as a charge out of land, or other principal interest; and that the coupling of it with lands and tenements, doth define the sense to be one rent
issuing out of another, and not ns a lesser rent to be taken by way of computation out of a grea'er: therefore nothing passefh of that rent. But if it stood of itself without these words of land and tenements, namely, I reciting that I am seised of such a rent of ten shillings, do grant five shillings " percipiend' de eodem reddit'," it is good enough without atturnement: because "percipiend'de," etc. may well be taken for "parcella de," etc. without violence to the words; but if it had been "percipiend' de," I. S. without saying de redditibus prtpdic/', although I. S. be the person that payeth me the foresaid rent of ten shillings, yet it is void: and so it is of all other rules of exposition of grants, when they meet in opposition with this rule, they are preferred.
Now to examine this rule in pleadings as we have done in grants, you shall find that in all imperfections of pleadings, whether it be in ambiguity of words and double intendments, or want of certainty and averments, or impropriety of words, or repugnancy and absurdity of words, even the plea shall be strictly and strongly taken against him that pleads.
For ambiguity of words, if in a writ of entry upon disseisin, the tenant pleads jointenancy with I. S. of the gift and feoffment of I. D. judgment de briefe, the demandant saith that long time before I. D. any thing had, the demandant himself was seised in fee " quodque supdiet' I. D. super possessionem ejus intravit," and made a joint feoffment, whereupon he the demandant re-entred, and so was seised until by the defendant alone he was disseised; this is no plea, because the word intravit may be understood either of a lawful entry, or of a tortious; and the hardest against him shall be taken, which is. that it was a lawful entry; therefore he should have alleged precisely that I. D. disseisivit.
3 Ed. 8. Dy. 66. So uPon "mniguity that grows by reference, if an action of debt be brought against I. N. and I. P. sheriffs of London, upon an escape, and the plaintiff doth declare upon an execution by force of a recovery in the prison of Ludgate "sub custodia I. S. et I. D." then sheriffs in 1 K. H. VIII. and that he so continued tub custodia I. B. et I. G. in 2 K. H. VIII. and so continued sub custodia I. N. et I. L. in 3 K. H. VIII. and then was suffered to escape: I. N. and I. L. plead, that before the escape, supposed at such a day " anno superius in narratione speeificaro," the said I. D. and I. S. "ad tunc vicecomites" suffered him to escape; this is no good pica, because there be three years specified in the declaration, and it shall be hardliest taken that it was I or 3 H. VIII. when they were out of office; and yet it is nearly induced by the "ad tunc Vicecomites," which should leave the intendment to be of that year in which the declaration supposeth that they were sheriffs; but that sufficeth not, but the year must be alleged in fact, for it may be it was mislaid by the plaintiff, and therefore the defendants meaning to discharge themselves by a former escape, which was not in their time, must allege it precisely.
tje ^ For incertainty of intendment, if a
warranty collateral be pleaded in bar,
and the plaintiff by replication, to avoid warranty, saith, that he entered upon the possession of the defendant, non constat whether this entry was in the life of the ancestor, or after the warranty attached ; and therefore it shall be taken in hardest sense, that it was after the warranty descended, if it be not otherwise averred.
For impropriety of words, if a man s» H. s. is plead that his ancestor died by protest- 39" 6 s ation seised, and that I. S. abated, &c. this is no plea, for there can be no abatement except there be a dying seised alleged in fact; and an abatement shall not improperly be taken for disseisin in pleading, " car pnrols font pleas."
For repugnancy, if a man in avowry
declares that he was seised in his' demesne as of fee of white acre, and being so seised did demise the same white acre to I. S. habendum the moiety for twenty-one years from the date of the deed, the other moiety from the surrender, expiration, or determination of the estate of I. D. " qui tenet prredict' medietatem ad terminum vitae. suss reddend'" 40*. rent: this declaration is insufficient, because the seisin that he hath alleged in himself in his demesne as of fee in the whole, and the state for life of a moiety, are repugnant; and it shall not be cured by taking the last which is expressed to control the former, which is but general and formal; but the plea is naught, yet the matter in law had been good to have entitled him to have distrained for the whole rent.
But the same restraint follows this rule in pleading that was before noted in grants: for if the case be such as falleth within any other rule of pleadings, then this rule may not be urged.
And therefore it is a rule that a bar 9 Ed. 4.4 Ed.6. is good to a common intent. As if a PIowdebt be brought against five executors, and three of them make default, and two appear and plead in bar a recovery had against them two of 300/. and nothing in their hands over and above that sum: if this bar should be taken strongliest against them, then it should be intended that they might have abated the first suit, because the other three were not named, and so the recovery not duly had against them: but because of this other rule the bar is good: for that the more common intent will say, that they two only did administer, and so the action well conceived; rather than to imagine, that they would have lost the benefit and advantage of abating of the writ.
So there is another rule, that in pleading a man shall not disclose that which is against himself: and therefore if it be a matter that is to be set forth on the other side, then the plea shall not be taken in the hardest sense, but in the most beneficial, and to be left unto the contrary party to allege.
And therefore if a man be bound in 28 H. & l)y. fa. an obligation, that if the feme of the obligee do decease before the feast of St. John the Baptist which shall be in the year of our Lord God 1598. without issue of her body by her husband lawfully begotten then living, that then the bond shall be void; and in debt brought upon this obli30 E. 3.
gation the defendant pleads the feme died before the said feast without issue of her body then living: if this plea should be taken strongliest against the defendant, then should it be taken that the feme had issue at the time of her death, but issue died before the feast; but that shall not be so understood, because it makes against the defendant, and it is to be brought in on the plaintiffs side, and that without traverse.
So if in a detinue brought by a feme against the executors of her husband for the reasonable part of the goods of her husband, and her demand is of a moiety, and she declares upon the custom of the realm, by which the feme is to have a moiety, if there be no issue between her and her husband, and the third part if there be issue had, and declareth that her husband died without issue had between them; if this count should be hardliest construed against the party, it should be intended that her husband had issue by another wife, though not by her, in which case the feme is but to have the third part likewise; but that shall not be so intended, because it is matter of reply to be showed of the other side.
And so it is of all other rules of pleadings, these being sufficient not for the exact expounding of these other rules, but obiter to show how this rule which we handle is put by when it meets with any other rule.
As for acts of parliament, verdicts, judgments, &c. which are not words of parties, in them this rule hath no place at all, neither in devises and wills, upon several reasons; but more especially it is to be noted, that in evidence it hath no place, which yet seems to have some affinity with pleadings, especially when demurrer is joined upon the evidence.
And therefore if land be given by will by H. C. to his son f. C. and the heirs males of his body begotten; the remainder to F. C. and the heirs males of his body begotten; the remainder to the heirs males of the body of the devisor; the remainder to his daughter S. C. and the heirs of her body, with a clause of perpetuity; and the question comes upon the point of forfeiture in an assize taken by default, and evidence is given, and demurrer upon evidence, and in the evidence given to maintain the entry of the daughter upon a forfeiture, it is not set forth nor averred that the devisor had no other issue male, yet the evidence is good enough, and it shall be so intended; and the reason thereof cannot be, because a jury may take knowledge of matters not within the evidence; and the court contrariwise cannot take knowledge of any matter not within the pleas; for it is clear that if the evidence had been altogether remote, and not proving the issue there, although the jury might find it, yet a demurrer may well be taken upon the evidence.
But I take the reason of difference between pleadings, which are but openings of the case, and evidences which are the proofs of an issue, to be, that pleadings being but to open the verity of the matter in fact indifferently on both parts, have no gcope and conclusion to direct the construction and
intendment of them, and therefore must be certain; but in evidence and proofs, the issue, which is the state of the question and conclusion, shall incline and apply all the proofs as tending to that conclusion.
Another reason is, that pleadings must be certain, because the adverse party may know whereto to answer, or else he were at a mischief, which mischief is remedied by a demurrer; but in evidence, if it be short, impertinent, or uncertain, the adverse party is at no mischief, because it is to be thought that the jury will pass against him; yet nevertheless because the jury is not compellable to supply defect of evidence out of their own knowledge, though it be in their liberty so to do; therefore the law alloweth a demurrer upon evidence also.
Quod sub certa forma concessum rel reservalum est, nan trahitur ad valorem vel compenmtionem.
The law permitteth every man to part with his own interest, and to qualify his own grant, as it pleaseth himself; and therefore doth not admit any allowance or recompence, if the thing be not taken as it is granted.
So in all profits a prender, if I grant common for ten beasts, or ten loads of wood out of my coppice, or ten loads of hay out of my meads, to be taken for three years; he shall not have common for thirty beasts, or thirty loads of wood or hay, the third year, if he forbear for the space of two years: here the time is certain and precise.
So if the place be limited, as if I grant estovers to be spent in such a house, or stone towards the reparation of such a castle; although the grantee do burn of his fuel and repair of his own charge, yet he can demand no allowance for that he took it not.
So if the kind be specified, as if I let my park reserving to myself all the deer and sufficient pasture for them, if I do decay the game whereby there is no deer, I shall not have quantity of pasture answerable to the feed of so many deer as were upon the ground when I let it; but am without any remedy except I will replenish the ground again with deer.
But it may be thought that the reason of these cases is the default and laches of the grantor, which is not so.
For put the case that the house where the estovers should be spent be overthrown by the act of God, as by tempest, or burnt by the enemies of the king, yet there is no recompence to be made.
And in the strongest case where it is in default of the grantor, yet he shall make void his own grant rather than the certain form of it should be wrested to an equity or valuation.
As if I grant common "ubicunque 8 H 6 39 averia mea ierint," the commoner cannot otherwise entitle himself, except that he aver that in such grounds my beasts have gone and fed; and if I never put in any, but occupy my grounds otherwise, he is without remedy; but if I once put in, and after by poverty or otherwise desist, yet the commoner may continue; contrariwise, if the words
of (he grant had been " quandocunque averia mea ierint," for there it depends continually upon the putting in of my beasts, or at least the general seasons when I put them in, not upon every hour or moment.
But if I grant " tertiam advocationem" to I. S. if he neglect to take his turn ea vice, he is without remedy: but if my wife be before entitled to dower, and I die, then my heir shall have two presentments, and my wife the third, and my grantee shall have the fourth; and it doth not impugn this rule at all, because the grant shall receive that construction at the first that it was intended such an avoidance as may be taken and enjoyed; as if I grant "proximam advocationem" to I. D. and then grant "proximam advocationem" to I. S. this shall be intended the next to the next, that is, the next which I may lawfully grant or dispose.
But if I grant "proximam advocationem" to I. S. and I. N. is incumbent, and I grant by precise words, "illam advocationem, quae post mortem, resignationem, translationem, vel deprivationem I. N. immediate fore contigerit;" now this grant is merely void, because I had granted that before, and it cannot be taken against the words.
BEGULA V. Necessitas inducit privilegium quoad jura privafa.
The law chargeth no man with default where the act is compulsory and not voluntary, and where there is not a consent and election; and therefore if either an impossibility be for a man to do otherwise, or so great a perturbation of the judgment and reason as in presumption of law man's 4 ^p6^0"11- nature cannot overcome, such necessity carrieth a privilege in itself.
Necessity is of three sorts, necessity of conservation of life, necessity of obedience, and necessity of the act of God, or a stranger.
„. , First, for conservation of life: if a
Stamf. , . , . „ , .
man steal viands to satisfy his present
hunger, this is no felony nor larceny.
So if divers be in danger of drowning by the casting away of some boat or bark, and one of them get to some plank, or on the boat's side, to keep himself above water, and another to save his life thrust him from it, whereby he is drowned; this is neither ne defendendo nor by misadventure, but justifiable.
Con 13 per S° if divers felons be in a gaol, and
Brooke. MH. the gaol by casualty is set on fire, 7 2. per Kcble , , . ' - . .
14 H7 7. ■» per whereby the prisoners get forth; this
p|enconilii?on 's no escnPei nor breaking of prison. 4 Ed. fi 20. So upon the statute, that every mer
conuitioii. chant that setteth his merchandise on land without satisfying the customer or agreeing for it, which agreement is construed to be in certainty, shall forfeit his merchandise, and it is so that bytempest a great quantity of the merchandise is cast overboard, whereby the merchant agrees with the customer by estimation, which falleth out short of the truth, yet the over quantity is not forfeited
by reason of the necessity; where note, that necessity dispenseth with the direct letter of a statute law.
So if a man have right to land, and Ljt pj_ 4 » do not make his entry for terror of i* H 4.20. force, the law allows him a continual 3sH6.i1 claim, which shall be as beneficial to HS.?? 5.8'?S' him as an entry; so shall a man save 2 Ed. 3 100 his default of appearance by crestme Cor' ^*Xlilde eau, and avoid his debt by duresse, whereof you shall find proper cases elsewhere.
The second necessity is of obedience; and therefore where baron and feme commit a felony, the feme can neither be principal nor accessary; because the law intends her to have no will, in regard of the subjection and obedience she oweth to her husband.
So one reason among others why ambassadors are used to be excused of practices against the state where they reside, except it be in point of conspiracy, which is against the law of nations and society, is, because non constat whether they have it in mandatis, and then they are excused by necessity of obedience.
So if a warrant or precept come from the king to fell wood upon the ground whereof I am tenant for life or for years, I am excused in waste.
The third necessity is of the act of n. 43Ed a 8. God, or of a stranger, as if I be par- Wast .31. ticular tenant for years of a house, and j8 Ed.'3. per it be overthrown by grand tempest, or ^'j^^p';,^ thunder and lightning, or by sudden Wast. ioi floods, or by invasion of enemies, or if 44 Ed 3 2I' I have belonging unto it some cottages which have been infected, whereby I oan procure none to inhabit them, no workmen to repair them, and so they fall down ; in all these cases I am excused in waste: but of this last learning when and how the act of God and strangers do excuse men, there be other particular rules.
But then it is to be noted, that necessity priviIegeth only "quoad jura privata," for in all cases if the act that should deliver a man out of the necessity be against the commonwealth, necessity excuseth not; for "privilegium non valet contra rempublicam:" and as another saith, "necessitas publics est major quam privata:" for death is the last and farthest point of particular necessity, and the law imposeth it upon every subject, that he prefer the urgent service of his prince and country before the safety of his life: as if in danger of tempest those that are in a ship throw overboard other men's goods, they are not answerable; but if a man be commanded to bring ordnance or munition to relieve any of the king's towns that are distressed, then he cannot for any danger of tempest justify the throwing them overboard; for there it holdeth which was spoken by the Boman, when he alleged the same necessity of weather to hold him from embarking, "Necesse est ut earn, non ut vivam." So in the case put before of husband and wife, if they join in committing treason, the necessity of obedience doth not excuse the offence as it doth in felony, because it is against the commonwealth.