Page images

he live so long] is no more than the law saith, but it doth not appear upon the same conveyance or act, that this limitation is nugatory, but it is foreign matter in respect of the truth of the state whence the lease is derived: and therefore if lessee for life make a feoffment in fee, yet the state of the lessee for years is not enlarged against the feoffee; otherwise had it been if such limitation had not been, but that it had been left only to the law.

So if tenant after possibility make a Kebfe. 24 Ed.r lease for years, and the donor confirms 3^28. Fii*- pL to the lessee to hold without impeachment of waste during the life of tenant in tail, this is no more than the law saith; but the privilege of tenant after possibility is foreign matter, as to the lease and confirmation: and therefore if tenant after possibility do surrender, yet the lessee shall hold dispunishable of waste; otherwise had it been if no such confirmation had been made.

Also heed must be given that it be indeed the same thing which the law intendeth, and which the party expresseth, and not only like or resembling, 2D Ed. 3 Fit/ 7 and such as may stand both together: 31 E. l. Vouch, for if I let land for life rendering rent, and by my deed warrant the same land, this warranty in law and warranty in deed are not the same thing, but may both stand together.

There remaineth yet a great question upon this rule.

A principal reason whereupon this rule is built should seem to be, because such acts or clauses are thought to be but declaratory, and added upon ignorance of the law, and ex consuetudine clericorum, upon observing of a common form, and not upon purpose or meaning, and therefore whether by particular and precise words a man may not control the intendment of the law.

To this I answer, that no precise nor express words will control this intendment of law; but as the general words are void, because they say that which the law saith; and so are thought to be against the law: and therefore if I devise my land being knight's service tenure to my heir, and express my intention to be, that the one part should descend to him as the third part appointed by the statute, and the other he shall take by devise to his own use; yet this is void: for the law saith, he is in by descent of the whole, and I say he shall be in by devise, which is against the law.

But if I make a gift in tail, and say upon condition, that if tenant in tail discontinue and after die without issue, it shall be lawful for me to enter; this is a good clause to make a condition, because it is but in one case and doth not cross the law generally: for if the tenant in tail in that case be disseised, and a descent cast, and die without issue, I that am the donor shall not enter.

But if the clause had been provided, that if tenant in tail discontinue, or suffer a descent, or do any other act whatsoever, that after his death without

* Semble clerement le ley d'estre contrary in ambideux cases, car lou est sans fait, est livery solement de cestui in le rem' et surr" de partic' ten', autrement sera forfeiture de son estate, et lou est per fait, le livery passa solement de tenant,

issue it shall be lawful for me to enter: now this is a void condition, for it importeth a repugnancy tn law; as if I would overrule that where the law saith I am put to my action, I nevertheless will reserve to myself an entry.


Non videtur eonsensum retinuisse si quit ex prtescripto minantis aliquid immutavit.

Although choice and election be a badge of consent, yet if the first ground of the act be duresse, the law will not construe that the duresse doth determine, if the party duressed do make any notion or offer.

Therefore if a party menace me, except I make unto him a bond of 40/. and I tell him that I will not do it, but I will make unto him a bond of 201. the law shall not expound this bond to be voluntary, but shall rather make construction that my mind and courage is not to enter into the greater bond for any menace, and yet that I enter by compulsion notwithstanding into the lesser.

But if I will draw any consideration to myself, as if I had said, I will enter into your bond of 40/. if you will deliver me that piece of plate, now the duresse is discharged ; and yet if it had been moved from the duressor, who had said at the first, You shall take this piece of plate, and make me a bond of 401. now the gift of the plate had been good, and yet the bond shall be avoided by duresse.


Licita bene miscentur, formula nisi juris obstet.

The law giveth that favour to lawful acts, that although they be executed by several authorities, yet the whole act is good.

As when tenant for life is the remainder in fee, and they join in a livery by deed or without, this is one good entire livery drawn from them both, and doth not inure to a surrender of the particular estate, if it be without deed; * or confirmation of those in the remainder, if it be by deed; but they are all parties to the livery.

So if tenant for life the remainder in fee be, and they join in granting a rent, this is one solid rent out of both their estates, and no double rent, or rent by confirmation.

So if tenant in tail be at this day, and he make a lease for three lives, and his own, this is a good lease, and warranted by the statute of Q 32 H. VIII. and yet it is good in part UCTy by the authority which tenant in tail hath by the common law, that is, for his own life, and in part by the authority which he hath by the statute, that is, for the other three lives.

So if a man, seized of lands deviseable by custom and of other land held in knight's service, devise all his lands, this is a good devise of all the land cus

car il ad le frank-tenement, vide accordant Sur Co. 1. 1. 79. b. 77. a Com. Plow. 59. a. 140. 2 H. 5. 7. 13 H. 7. 14. 13 Ed. 4. 4. a. 27 H. 8. 13 M. 16 et 17. El Dy. 339.

tomary by the common law, and of two parts of the other land by the statutes.

So in the Star-chamber a sentence may be good, grounded in part upon the authority given the court by the statute of 3 H. VII. and in part upon that ancient authority which the court hath by the common law, and so upon several commissions.

But if there be any form which the law appointeth to be observed, which cannot agree with the diversities of authorities, then this rule faileth.

And if three coparceners be, and one of them alien her purparty, the feoffee and one of the V'dei66. S*Ut sisters cannot join in a writ " de part' facienda," because it behoveth the feoffee to mention the statute in his writ.


Praesentia corporis tollit errorem nominis, et Veritas nominis tollit errorem demonstration's.

There be three degrees of certainty.

1. Presence.

2. Name.

3. Demonstration or reference.

Whereof the presence the law holdeth of greatest dignity, the name in the second degree, and the demonstration or reference in the lowest, and always the error or falsity in the less worthy.

And therefore if I give a horse to I. D. being present, and say unto him, I. S. take this; this is a good gift, notwithstanding I call him by a wrong name: but so had it not been if I had delivered him to a stranger to the use of I. S. where I meant I. D.

So if I say unto I. S. Here I give you my ring with the ruby, and deliver it with my hand, and the ring bear a diamond and no ruby, this is a good gift notwithstanding I name it amiss.

So had it been if by word or writing, without the delivery of the thing itself, I had given the ring with the ruby, although I had no such, but only one with a diamond which I meant, yet it would have passed.

So if I by deed grant unto you, by general words, all the lands that the king hath passed unto me by letters patents dated 10 May, unto this present indenture annexed, and the patent annexed have date 10 July, yet if it be proved that that was the true patent annexed, the presence of the patent maketh the error of the date recited not material; yet if no patent had been annexed, and there had been also no other certainty given, but the reference of the patent, the date whereof was mis-recited, although I had no other patent ever of the king, yet nothing would have passed.

Like law is it, but more doubtful, where there is not a presence, but a kind of representation, which is less worthy than a presence, and yet more worthy than a name or reference.

As if I covenant with my ward, that I will tender unto him no other marriage, than the gentlewoman whose picture I delivered him, and that picture hath about it tptatis su/e anno 16, and the gentlewoman is seventeen years old; yet nevertheless if it can be proved that the picture was made for that gentlewoman, I may, notwithstanding this mistaking, tender her well enough.

So if I grant you for life a way over my land, according to a plot intended between us, and after I grant unto you and your heirs a way according to the first plot intended, whereof a table is annexed to these presents, and there be some special variance between the table and the original plot, yet this representation shall be certainly sufficient to lead unto the first plot; and you shall have the way in fee nevertheless, according to the first plot, and not according to the table.

So if I grant unto you by general words the land which the king hath granted me by his letters patents, "quarum tenor sequitur in ha?c verba," etc. and there be some mistaking in the recital and variance from the original patent, although it be in a point material, yet the representation of this whole patent shall be as the annexing of the true patent, and the grant shall not be void by this variance.

Now for the second part of this rule, touching the name and the reference, for the explaining thereof, it must be noted what things sound in demonstration or addition: as first in lands, the greatest certainty is, where the land hath a name proper, as " the manor of Dale, Grandfield," &-c. the next is equal to that, when the land is set forth by bounds and abuttals, as " a close of pasture bounding on the east part upon Emsden-wood, on the south upon," &c. It is also a sufficient name to lay the general boundary, that is, some place of larger precinct, if there be no other land to pass in the same precinct, as "all my lands in Dale, my tenement in St. Dunstan's parish," &c.

A farther sort of denomination is to name lands by the attendancy they have to other lands more notorious, as "parcel of my manor of D. belonging to such a college lying upon Thames bank."

All these things are notes found in denomination of lands, because they be signs local, and therefore of property to signify and name a place: but those notes that sound only in demonstration and addition, are such as are but transitory and accidental to the nature of the place.

As " modo in tenura et occupatione" of the proprietary, tenure or possession is but a thing transitory in respect of land; " Generatio venit, generatio migrat, terra autem manet in reternum."

So likewise matter of conveyance, title, or instrument.

As, "qua? perquisivide I. D. qua? descendebant a I. N. patre meo," or "in pradicta indenture dimissionis," or in pra?dictis Uteris patentibus specificat'."

So likewise, " continent' per restimationem 20 acres," or if per estimation em be left out, all is one, for it is understood, and this matter of measure although it seem local, yet it is indeed but opinion and observation of men.

The distinction being made, the rule is to be examined by it.

Therefore if I grant my close called Dale in the parish of Hurst, in the county of Southampton, and the parish likewise extendeth into the county of Berkshire, and the whole close of Dale lieth in the county of Berkshire; yet because the parcel is especially named, the falsity of the addition hurteth not. and yet this addition is found in name, but, as it was said, it was less worthy than a proper name.

So if I grant " tenementum meum," or " omnia tenementa mea," for the universal and indefinite to this purpose are all one, " in parochia Sancti Butolphi extra Aldgate," where the verity is extra Bishopsgate, in tenura Guilielmi, which is true, yet this grant is void, because that which sounds in denomination is false, which is the more worthy; and that which sounds in addition is true, which is the less;* and though in tenura Guilielmi, which is true, had been first placed, yet it had been all one.

But if I grant "tenementum raenm quod perquisivi de R. C. in Dale," where the truth was T. C. and I have no other tenements in D. but one, this grant is good,f because that which soundeth in name, namely, in Dale, is true, and that which soundeth in addition, namely, quod perquisivi, etc. is only false.

So if I grant " prata mea in Dale continentia 10 acras," and they contain indeed twenty acres, the whole twenty pass.

So if I grant all my lands, being parcels " manerii de D. in praedictis Uteris patentibus specificat'," there be no letters patents, yet the grant is good enough.

The like reason holds in demonstrations of persons, that have been declared in demonstration of lands and places, the proper name of every one is in certainty worthiest: next are such appellations as are fixed to his person, or at least of continuance, as, son of such a man, wife of such a husband; or addition of office, as clerk of such a court, &c. and the third are actions or accidents, which sound no way in appellation or name, but only in circumstance, which are less worthy, although they may have aproper particular reference to the intention of the grant.

And therefore if an obligation be made to /. 5. Jllio el h&redi G. S. where indeed he is a bastard, yet this obligation is good.

So if I grant land "Episcopo nunc Londinensi, qui me erudivit in pueritia," this is a good grant, although he never instructed me.

But e eonverso, if I grant land to " I. S. filio et hseredi G. S." and it be true that he is son and heir untoG. S. but his name is Thomas, this is a void grant.

Or if in the former grant it was the bishop of Canterbury who taught me in my childhood, yet shall it be good, as was said, to the bishop of London, and not to the bishop of Canterbury.

The same rule holdeth of denomination of times, which are such a day of the month, such a day of the week, such a Saint's day or eve, to-day, to-morrow; these are names of times.

But the day that I was born, the day that I was married; these are but circumstances and addition of times.

And therefore if I bind myself to do some personal attendance upon you upon Innocents'day, being the day of your birth, and you were not born that day, yet shall I attend.

• Semblance icy le grant ust este assets bon, come fuit resolu per cur1, Co. lib. 3, fol. 10. a. vid. 33 H. 8. Dy. 50. b. 1Q El. ib. '292. b. et Co. lib. 2. fo. 33. a.

f Vide ib. quae contraria est lex, car icy auxi le primer certainty est faux

There rest two questions of difficulty yet upon this rule; first, Of such things whereof men take not so much note as that they shall fail of this distinction of name and addition.

As, " my box of ivory lying in my study sealed up with my seal of arms; my suit of arras with the story of the nativity and passion:" of such things there can be no name, but all is of description, and of circumstance, and of these I hold the law to be, that precise truth of all recited circumstances is not required.

Rut in such things "ex multitudine signorum colligitur identitas vera," therefore though my box were not sealed, and although the arras had the story of the nativity, and not of the passion, if I had no other box, nor no other suit, the gifts are good; and there is certainty sufficient, for the law doth not expect a precise description of such things as have no certain denomination.

Secondly, Of such things as do admit the distinction of name and addition, but the notes fall out to be of equal dignity all of name or addition.

As, "prata mea juxta communem fossam in D." whereof the one is true, the other false; or " tenementum meum in tenura Guilielmi, quod perquisivi de R. C. in predict' indent' specificat'," whereof one is true, and two are false; or two are true, and one false.

So "ad curiam quam tenebat die Mercurii tertio die Martii," whereof the one is true, the other false.

In these cases the former rule, "ex multitudine signorum," etc. holdeth not; neither is the placing of the falsity or verity first or last material, but all must be true, or else the grant is void; vi(le ijvers always understood, that if you can re- Ji^"^*'pur concile all the words, and make no falsity that is quite out of this rule, which hath place only where there is a direct contrariety or falsity not to be reconciled to this rule.

As if I grant all my land in D. in tenura I. S. which I purchased of I. N. specified in a demise to I. D. and I have land in D. whereof in part of them all these circumstances are true, but I have other lands in D. wherein some of them fail, this grant will not pass all my land in D. for there these are references and no words of falsity or error, but of limitation and restraint.


Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verijicatione facti tollitur.

There be two sorts of ambiguities of words, the one is ambiguitas patens, and the other latens. Patens is that which appears to be ambiguous upon the deed or instrument: latens is that which seemeth certain and without ambiguity, for any thing that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity.

Ambiguitas patens is never holpen by averment, and the reason is, because the law will not couple and mingle matter of speciality, which is of the higher account, with matter of averment, which is of inferior account in law; for that were to make all deeds hollow, and subject to averments, and so in effect, that to pass without deed, which the law appointeth shall not pass but by deed.

Therefore if a man give land to /. D. et I. S. et hagredibus, and do not limit to whether of their heirs, it shall not be supplied by averment to whether of tliem the intention was the inheritance should be limited.

So if a man give land in tail, though it be by will, the remainder in tail, and add a proviso in this manner: Provided that if he, or they, or any of them do any, &c. according to the usual clauses of perpetuities, it cannot be averred upon the ambiguities of the reference of this clause, that the intent of the devisor was, that the restraint should go only to him in the remainder, and the heirs of his body; and that the tenant in tail in possession was meant to be at large.

Of these infinite cases might be put, for it holdeth generally that all ambiguity of words by matter within the deed, and not out of the deed, shall be holpen by construction, or in some case by election, but never by averment, but rather shall make the deed void for uncertainty.

But if it be ambiguitas latens, then otherwise it is: as if I grant my manor of S. to I. F. and his heirs, here appeareth no ambiguity at all; but if the truth be, that I have the manors both of South S. and North S. this ambiguity is matter in fact; and therefore it shall be holpen by averment, whether of them was that the party intended should pass.

So if I set forth my land by quantity, then it shall be supplied by election, and not averment.

As if I grant ten acres of wood in sale, where I have a hundred acres, whether I say it in my deed or no, that I grant out of my hundred acres, yet here shall be an election in the grantee, which ten he will take.

And the reason is plain, for the presumption of the law is, where the thing is only nominated by quantity, that the parties had indifferent intentions which should be taken, and there being no cause to help the uncertainty by intention, it shall be holpen by election.

But in the former case the difference holdeth, where it is expressed, and where not; for if I recite, Whereas I am seised of the manor of North S. and South S. I lease unto you unum manerium dc S. there it is clearly an election. So if I recite, Whereas I have two tenements in St. Dunstan's, I lease unto you unum tenementum, there it is an election, not averment of intention, except the intent were of an election, which may be specially averred.

Another sort of ambiguitas latens is correlative unto these: for this ambiguity spoken of before, ii when one name and appellation doth denominate divers things, and the second, when the same thing is called by divers names.

As if I give lands to Christ-Church in Oxford, and the name of the corporation is " Ecclesia ChrUti in Universitate Oxford," this shall be holpen by averment, because there appears no ambiguity in the words: for this variance is matter in fact, but the averment shall not be of intention, because it doth stand with the words.

For in the case of equivocation the general intent includes both the special, and therefore stands with the words: but so it is not in variance, and therefore the averment must be of matter, that do endnre quantity, and not intention.

As to say, of the precinct of Oxford, and of the University of Oxford, is one and the same, and not to say that the intention of the parties was, that the grant should be to Christ-Church in that University of Oxford.






The use of the The use of the law consisteth prin

I»w, and cipally in these three things:

wherein it r' ° ,

principally I. To secure men's persons from

consisielh. death and vj0lence.

II. To dispose the property of their goods and lands.

III. For preservation of their good names from shame and infamy.

For safety of persons, the law provideth that any man standing in fear of fnJJ^JJa«kM,> another may take his oath before a justice of peace, that he standeth in fear of his life, and the justice shall compel the other to be bound with sureties to keep the peace.

If any man beat, wound, or maim Action for another, or give false scandalous words tery!&c.b*t

[ocr errors]

that may touch his credit, the law giveth thereupon an action of the case for the slander of his good name; and an action of battery, or an appeal of maim, by which recompence shall be recovered, to the value of the hurt, damage, or danger. Appeal of mur- anv man kill another with malice,

der Kiwiyo the law giveth an appeal to the wife of t enexto in. ^ je>^ ,f j,e na(j anVi or to tne next

of kin that is heir, in default of a wife; by which appeal the defendant convicted is to suffer death, and to lose all his lands and goods: but if the wife or heir will not sue, or be compounded withal, yet the king is to punish the offence by indictment or presentment of a lawful inquest and trial of the offender before competent judges; whereupon being found guilty, he is to suffer death, and to lose his lands and goods.

Man-slaugh- ^ one ^ill another upon a sudden feTture of* f°r" 1uarre^' tn's's man-slaughter, for which poods, and the offender must die, except he can when not read; and if he can read, yet must he lose his goods, but no lands.

And if a man kill another in his own defence, he shall not lose his life, nor his lands, but he must lose his goods, except the party slain did first assault him, to kill, rob, or trouble him by the highway side, or in his own house, and then he shall lose nothing.

And if a man kill himself, all his goods and chattels are forfeited, but no lands.

If a man kill another by misfortune, ch!TMe°yID'S" as shooting an arrow at a butt or mark, or casting a stone over a house, or the like, this is loss of his goods and chattels, but not of liis lands nor life.

If a horse, or cart, or a beast, or any other thing do kill a man, the horse, beast, or other thing is forfeited to the crown, and is called a Deodand, and usually granted and allowed by the king to the bishop almoner, as goods are of those that kill themselves.

„ . The cutting out of a man's tongue,

Cottingout ■ , . .. . ,6 .'

tongues, and or putting out his eyes maliciously, is

eyw^elony feny I f°r which the offender is to suffer death, and lose his lands and goods. But for that all punishment is for example's sake, it is good to see the means whereby offenders are drawn to their punishment; and first for matter of the peace.

The ancient laws of England, planted here by the Conqueror, were, that there should be officers of two sorts in all the parts of this realm to preserve the peace:

1. Constabularii pacis.

2. Conservatores pacis.

The office of the constable was to u?eeconsCtable. arrest the parties that he had seen breaking the peace, or in fury ready to break the peace, or was truly informed by others, or by their own confession, that they had freshly broken the peace; which persons he might imprison in the stocks, or in his own house, as his or their quality


required, until they had become bounden with sureties to keep the peace; which obligation from thenceforth was to be sealed and delivered to the constable to the use of the king; and that the constable was to send to the king's exchequer or chancery, from whence process should be awarded to levy the debt, if the peace were broken.

But the constables could not arrest any, nor make any put in bond upon complaint of threatening only, except they had seen them breaking the peace, or had come freshly after the peace was broken. Also, these constables should keep watch about the town for the apprehension of rogues and vagabonds, and night-walkers, and eves-droppers, scouts, and such like, and such as go armed. And they ought likewise to raise hue and cry against murderers, manslayers, thieves, and rogues.

Of this office of constable there were constahigh constables, two of every hundred; bles for everv petty constables, one in every village: ty consfaWea* they were in ancient time all appointed for every vilby the sheriff of the shire yearly in his lage' court called the Sheriffs Turn, and there they received their oath. But at this day they are appointed either in the law-day of that precinct wherein they serve, or else by the high constable in the sessions of the peace.

The Sheriff's Turn is a court very

ancient, incident to his office. At the P16 , , . t Bench first in

first it was erected by the Conqueror, stituted, and

and called the King's Bench, appoint- j£n'urisdic' ing men studied in the knowledge of the laws to execute justice, as substitutes to him, in his name, which men are to be named " Justiciarii ad placita coram rege assignati:" one of them being capitalis justiciarius, called to his fellows; the rest in number as pleaseth the king: of late but three justiciarii holden by patent. In this court every man above twelve years of age was to take his oath of allegiance to the king; if he were bound, then his lord to answer for him. In this court the constables were appointed and sworn; breakers of the peace punished by fine and imprisonment; the parties beaten or hurt recompensed upon complaints of damages; all appeals of murder, maim, robbery, decided; contempts against the crown, public annoyances against the people, treasons and felonies, and all other matters of wrong betwixt party and party for lands and goods.

But the king seeing the realm grow Courtof Mar. daily more and more populous, and shalsea erectthat this one court could not despatch ris'dtctio'rf J"~

all, did first ordain that his marshal w!'nin J* ,' . , . . miles of the

should keep a court, for controversies chief tunnel,

arising within the verge, which was &c'

within twelve miles of the chiefest tunnel of the

court; which did but ease the King's Bench in

matters only concerning debts, covenants, and such

like, of those of the king's household only; never

dealing in breaches of the peace, or concerning the

crown by any other persons, or any pleas of lands.

Insomuch as the king, for farther sheriff's Turn

ease, having divided this kingdom into instituted up.

counties, and committing the charge of sionofEng

« PreviousContinue »