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University of Toronto

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THE

ELIMENTS

O F T H E G O M-

MONLAWESOF

• ENGLAND,

^^ branched into a double TraU z

THE ONE

Containing a Colledlion of fome princi- pal! Rules and Maximcs of the Common

Law, wich their Latitude and Extent. Explicated for the more facile Intro JuHion offuch di are

ftudiou/ly addiSiedto thai noble frofe[sion,

THE OTHER The Ufa of the Common Law, forprelervation

of our PtrfonSj Goodsjandgood Na«(^^

According to the Laves and Cufiomes of this Land.

By the late Sir Francis BaconKnight^Loiycmhrtiy and Vifcount S. Alban.

yidere Utilitas*

L ONDOJSr^ Printed by the AfTipnes o{ 7. More EG:], and nre to be fold hy Anne Afore , znd He»ry Hood, in Saint Dugftans

A

COLLE CT ION

OF SOME PRINCIPAL

R u L £ s and M a x i m e s of the Common Lawes of

England,

WITH THEIR CATI-

TUDE and Extent:

Explicated for thcftnorc facile Introdu- ction of fuch as arc jftudioufly addi(5ted to that noble ProfelTion. »

BySirpRANCisBACo N,then SoUicitor gtnerall to the late renowned Qtteene Eli- zabeth, and fine e Lord Chancellor

ofhii GLAND.

Orhe^arvoifednon occiduo*

LONDON-, Printed by the Aflignes of J, More Efq.and are to be fold by jiffff€ More, and He^irj Hood.m S.Dunftans Church-yard in V leec-ftre^t. \6 3 6*

#

TO

HER SACRED

MAIESTIE.

Doe here woft humbly ftefentand dedicate to your Sacred M^^By a Sheaf e and ciufter of fruit of the good and favourable feafoH , which by the influence ^f your happy go- vernment rve enjoy '^ for if it be true that filcnt leges inter arma,i; is al/o m true^thatyour Afajefiy is ma double refpeB the Ufe Qfd^ larvs:Oncey hecaufe without your authority they are but litera mor- tua ; and againe^ becaufeyou are the Itfe of our peace, raiihout which lawes are put tofilence : and as ihevitall fpiritsdoenotonely matntaine and move thebody^bm alfo contend to perfiB and ren^if^ fo your Sacred Majefly^ who u anima legis ^doth not onely give unto your liwes force and vigour , but alfo hath been care- full of the it amendment and reformings wherein your J^ajefltes proceeding may bee compared^ as in that

part.

TheEpiftleDedicatory;

fart of your government (^forifyourgQvernmem let confidered in all the farts , it is incomfarable) with the former doings of the moH excellent Prtncesthat ever have reigned^ trhofejludy altogether hathbeene alwayes to adorne and honour times of feace^ with the amendment of the policy of their latves. Of this •proceeding in Auguftus Ca^far the teHimony yet re- maines.

Pace data terris animumad civilia ver tit Jurafuumjlegefq; tulit juftifsimus audor,. Hence was colleBed the difference between gefta in ar- mis and a<5ta in tog^^whereof he difputeth thui.

Ecquid eft quod tam proprie did potcft adum e- jus qui togatus in republica cum poteftate imperioq; verfatus /it, quam lex ^ qu^rcada Gracchi: leges Sempmnii proferantur ; quaere Silk Cornelia! : quid Cn.Pora.tcrtius confulatusjinquibus adisconfiftctc ncmpc, inlegibus : a Ccefare ipfo fi qu^ereres quid- nam egiflet in urbe^& toga leges multas fe refponde* ret & prsBcIaras tuliffe.

The fame defire long after didfpring in the Empe- four ]u^m3xifbeing rightly called Ultimus Impe- ratorum Romanorumj, who having peace in the heart of his Empire^ and making his warres profpe^ foujly in the remote places of his Dominions by his Lievtenants y chofeitfor a monument and honour of hii government^ tafffr'ife the Romane lawes from in-- finite volumes^ ana much repugnancy ^ into one com^ petent and uniforme corps of law 5 of which matter himfelfe doth fpeake glortoufly ^ and yet aptly ^calling of It:, propriura & fkndilfimum templum juftiti^

confc-

TheEpiftIc Dcdicabfy;

confecratum .• a worke of great excellency y indeed^ as mayweUaffeArein that France^ Italy ^and Spaine^ which have long ftnce fhaken of the yoke of the Ro* mane Empire, doe yet nevertheleffe continue to ufe the policy of that lan> : hut more excellent had the tvoriebeene^fave that the more ignorant andobfcute time undertooke to correB the more learned andflotf^ rifhing time* To conclude with the d(rmefiicall exam» fie of one of your Majejiies royall Anceflors 3 King Edward the firft your Majefties famotts progenitor, andtheprincipall Law-giver of our nation , after hee bad in his younger yeeres given 'himfelfe fatiffaBi- onin theglory ofarmes, by the enterprise of theho" ly land , and having inward peaceiothertvife than for theinvafions which himfelfe made upon fV ales and Scotland, parts farre dijiant from the Centre of the Realme) hee bent himfelfe to endow hfS ftate with fundry notable and fundament all lawes, upon whtcb the government hath everfince principally re^ed: of this example , and others the like, two reafons may bee given ; the one , becaufe that Kings, which either by the moderationof their natures , or the maturity of their y tares and judgement do temper\theirmagnani^ mity wtthjuftice,do wifely confider and conceive of the exploits of ambition* warres , as aBions rather great than good, and fo difiafied with [that courfeof win" nmg honour , they convert their mind es rMmer to doe fomewhat for the -better uniting of humane fociety, than for thedijfolving or diflurbingofthe fame. An* other reafon ts , becaufe times of peace , for the mo(l part drawing mth them. abundance of wealth, and

fnenejfe

ThcEpiftIc Dedicatory:

pnenejfeof cunmng^ doe drawalfo in further confe^ queme multitudes of fmts , and cumroverfies , and 4- hufesofUwbyevafions and devices \ whtsh znconvc" mencerinfttch time ^rorvina more genet all^doe more iffffiamtyfoUcttefor the amendment of law ejto rejiram and repre£e them.

Tour Majesties reigne having heene blejfedfntm the Hzghefl with tmvard peace , and falling into an age mherein tffcience bee tncreafed , confaence is ra- ther decayed \ and tf mens wits bee great ^ their wills bee greater ; and wherein alfo lawes are multipledin number^ andjlackened in vigour and execution^ It was notpojidfle but that not onely fuits tn lawjhould multiply and mcreafe {whereof a great part art^ aU IP ayes unjuH^) but alfo that ail the indtreB courfes andpraBues to abufe law andjujfice jhould have bin much attempted and put in ure , which no doubt had bred greater enormities , had they nut by the royall policy of your Majefty , by the cenfure and forejighi of your Cotincell TaJfle and Star- chamber 1 and by the gravity and integrity of your Benches Jbeene reprejjed andrefirained 5 for it may bee truly obferved^ that as concerning frauds in contraBs ^bargames and ajju' ranees, and abufes of lawes by delay es^ covins^vexati- ons^ and corruptions in Informers ^Jurors^Mmisiers ofjufticejjjfd the like ^there have beenefundry excel- lent States made in your Afajefties time , more in number , and more politick e in ptovi^on^ than tn any your Majefties predecejjors times.

But I am an unworthy witneffe to your Majefiy of an higher imemt^fi and projeB , both by that which

was

The Epiftic Dedicatory,

was fuhlijhedhy your chancellor in fuU Parli anient from your. roy ail woufh^/n thefive and thirtieth of your happy retgne 3 and much more by that rvhich I have heenefince vouch fafed to underhand from your Maje- fiyyimparting apurpofe for thefe many yeeres infufed imoyour Majeflies breafl , to enter into a generaUa* mendment of the fiates of your iawes , and to reduce them to more brevity and certainty , that the great hoUowneffe and unfafety in affurances of lands and goods may bee ftrengthened^ the fivarving penalties that lye upon many fubjeBs removed y the execution of many profitable Iawes revived^ the Judge better di^ reBedinhu fentencey the Counfeller better warran- tedin his CounfaJe , the Student eafed in hii readings the contentioUA Suitor that feeketh but vexation dtf- drmed, andthehoneH Suitor that feeketh but to ob- taine his right relieved 5 which purpofe and intemi'^ on y as it did ^rike me with great admiration when I heard it , foit might bee acknowledged to bee one of the moji chofen workes^and of the highefi merit and be- neficence towards the fubjeB^ that ever entred into the fninde of any King ; greater than wee can imagine , hecaufe the tmperfeHions and dangers of the Iawes are covered under the clemency and excellent temper of your Majejiies government, ^nd though there bee rare presidents of it in government ^ as it commetkta pa£e in things fo excellent ^ there being no prefl^t full m view but <?/Juftinian ^yet I mufi fay as Cicero faid to Cajfar, Nihil viilgatum te dignum videri poteft \ and as it is no doubt a preciow feed fowne in your Majefiies heart by the hand of Godf divine Ma-

The Epiftle Dcdicatoty;

jefyifo ^hope in the maturity of your Majfjiiet cmns time it mS c§me up and hearefrutt* But to returne thence whither I have beene earned : obfervinr in pur Majefiy^ upon fo not able proof es and grounds ^ thit dtfpofitton in general! of a prudent and royalire* gard to the amendment of your lawes , and having bf my private labour and travell toUeHed many oftht grounds of the Common Lav^et^ the better to efiablijh and fettle a eertaine fenfe of Law ^ which doth now to9 much waver in incertatnty , / conceived the nature of the fubjeB , befides my particular obligation , wM fucb , as I ought not to dedicate the fame to any other than to your facred Majefy ; both beeaofe , though the eoSeftion bee mine y yet the lawes are your s^ and hecaufeit is your Majefies r eigne that hath beene as agoodly feafonable fpring'weather to the advancing of all excellent arts of peace, Andfo concluding witi aprayer anfwerableto tbeprefent argument^ tphtch is^ That Cod will continue your Ma jefiies reign in a h^py and renowned peace ^ and that he wiUgmde b^thyour policy and armes to pur chafe the continuance of is with fureiy and honour^ Imoii humbly crave pardon y and s^nmfJid yifur Majeftytothe d$vineprejhvation.

• Tour facred Majefties moft humble and obedient fubjedand fcivant^

'B^An€j 9 Bacok*^

Hold every man a debtor to his profefsion , from the which as men of courfc doc fceke to re- ceive countenance and profit, Co ought they ofduty to endevour themfelvs l?y way of amend$,to bca helpe and ornament there- unto; this is performed infome degree by the honeft and libcrali pra^ice of a profeflion , when men (hali carry a re[pe^ not to dcfcend into any courfe that is corrupt and unworthy thereof, and preferve them- felvcs free from the abufes wherewith the (amc pro- feflion is noted to bee infedled : but much more is this performed if a man bee able to vifite and ftreng- thcn the roots and foundation of the fciencc it fclfe 5 thereby not onely gracing it in reputation and dig- nity, butalfo amplifying it in pcrfedion & fubftance. Having therefore from the beginning comne to the ftudy ofthe lawcsof thisRealme , with adefireno leffeCif I could attaine unto it) that the famelawes fliould bee the better for my induftry ,than that my fclfe Ihould be the better for the knowledge of them: I doe not finde that by mine owne tra veil , witli6ut the help of authority ,1 can in any kinde conferre fb profitable an addition unto that fcience,as by coUe- diing the rules and groiinds, difperfed throughout the body •f the fame lawcs: for heteby no fmall

B 2 light

Th^freface:

light will be given in new cafes, wherein the autho- rities doe fquare and vary, to confirme the law ^and to make it received one way,and in cafes wherin the law iscleered by authority 5 yet neverthelefTe to fee more profoundly into the reafon of fuch judgements and ruled cafes 5 and thereby to make more ufeof them for the dccifion of other cafes more doubtful]; fb that the incertainty of law^which is the principall and moft juft challenge that is made to the lawes of our nation at this time,will,by this nevv ftrength laid to the foundation^be fomewhatthe more fettled and corrc(5lcd : Neither will the ufe hereof bee onely in deciding of doubts, andhelpingfoundnefle of judg- ment , but further in gracing of argument, in corre^ <aing unprofitable fubtlety , and reducing the fame to a more found and fubflantiall fenfe of l^w , in re- claiming vulgar errors, & generally the amendment in fbmc meafure ofthe very nature and complecflion* of the v^hole law , and therefore the conclufions of reafon of this kinde are worthily and aptly called by a great Civilian/<?^«^w/<?^f/, lawes of lawes, for that many pUdta legum^ thatis, particular and pofi- tive learnings of lawes do eafiiy decline from a^ood- temper of juftice,if they be not reiftified and gbv(ir- ned by fuch rules . " *"

Now for the manner of fetting dowhe of them, I have in all points to the befl of my uhderftanding & forefight applied: my felfe nor to that which might fceme moft for the oflentation of mine owne wit or knowledge, but to that which may yeeld moft ufe 2Dd profit to the Students & profeffoi? of our lawes.

And

The Vre face.

And therefore , whereas thefe rules aiefomeof them ordinary and vulgar, that now feive but for grounds and plaine fongs to the more fliallowand impertinent fore of arguments : other ot them are gathered and extraded out of the harmony and con- gruity of cafesjand are fuchas the vvifcft and dcepeft |ort of Lawyers have in judgement and ufe, though they be not able many times to exprclTc & fet them downe.

For the former fort, which a man that fliould ra- ther write to raifc an high opinion of himfelfe , than to inftrudl others, would have omitted , as trite and within every manscompaffejyet neverthclefs Ihavc not affedcd to neglcd them, but have chofen out of them fuch as I thought good : I have reduced them to a true application, hmiting and defining their bAund$,that they may not be read upon at Iarge,buc reftrainedtoapointofdifference.-for as both in the Law, and other Sciences j the handling of qucflions by Common-place without aime or application is the wcakefl^ fo yet nevertheleffe many comon prin- ciples & generalities are not tobeconcemned,if they be well derived and deduced into particulars^&their limits and exclufions duely affigned ; for there bee two contrary faults and extremities in the debating and iifting out of the law, which may bee befl: noted in two feverall manner of arguments : Some ar- gue upon generall grounds , and come not neere die point in queftion ; others without laying any foundation of a ground or difference , doe loofe- ly put cafes,which though they goe ncere the point,

yet

Thefrefacf.

yet being put fo fcattcrcd,prove notjbuf rather fervc to make the law appcare more doubcfull , than to make it more plaine.

Secondly, whereas feme of thcfe rules have aeon* currence with the civill Roman^aw, & fome others a divcrfity,& many times an oppoficion,rucb grounds which are common to our law and theirs I have not affe(5led to difguife into other words than theCivill- ans ufe,to the end they might fcera invented by me, and not borrowed or tranflated from them ; No,but I tooke hold of it as a matter of greater Authority and Majedy to fee and confider the concordance be- tween the lawes penn'd, and as it were dided verba* tint by the fame reafon : on the other (idc, the diver- fities between the civill Roman rules of law & ours» happcningcither when there is fuch an indiffcrency of reafon,fo equally ball«iced,as the one Uw imbra- ceth one courfejand the other the contrary ^and both juft after either is once pofitivc and certaine , or where the lawes vary in regard of accommoda- dng the law to the different confiderations of eftatCj I have not omitted to fet downc.

Thirdly, whereas I could have digcfted thefe ruVs into a certain method or order,which I know would have bin more admired , as that which would have made every particular rule through coherence and relation unto other rules fecmc more cunning and deep,y et I have avoided fo to do,bccaufethis delive- ring of knowledge in diftind and dif joyncd Apho- rifmes doth leave the wit of man more free to turne, and toife, and make ufe of that which is fo delivered

to

TheTrefact\

Co more fevcrall purpofes and applications 5 for wee fee that all the ancient wifdom and fcience was wonc to be delivered in that forme,a$ may be fcen by the parables oiSohmon^ and by the Aphorifmes o(Htp* focrates^ and the morall verfes oirheognes and Pho- a/ft/^/, but chiefly the prefident of the CivillJaw, which hath taken the fame courfc with their rule$^ did confirme me in my opinion*

Fourthly ,wherea$ I know very well it would have bin more plaufible & more currant, if the rules,with the expofitions of them , had been (et down either in Latine or in Engliih , that the harflincflc of the lan- guage might not have difgraccd the matter, and that Civilians, States-men, Schollars, and other fenfible men might not have beene barred from them 5 yet I have forfaken that grace and ornament of them, and onely taken this courfe : The rules themfelves I have put in Latine, not purified further than the property of thetermcs of the law would permit , which lan- guage Ichofe as the briefeftto contrive the rules compcndioufly , theapteft for memory , and of the greatcft authority and Majefty to bee avouched and alledged in argument: and for the expofitionsand diftindions, I have retained the peculiar lar^uage of our law , becaufc it fhould not bee lingular among the books of the fame fcience,and becaufe it is moft femiliar to the Students and profelTors thereofjand becaufe that it is moft figmUcant to expreffeconceits oflaw 5 and to conclude , it is a language wherein a man fljall not bee inriced to hunt after words , but matters and for the excluding of any other than pro-

feffed

Jhefreface.

fclTcd Lawyers , it was better manners to exclude them by the ftrangenefle of the language , than by the obrcurity of the conceit, which is, as though ic had been written in no private and retired language, yet by thofc that are not Lawyers would for the moft part not have beene underftood , or, which is worfe,miftaken.

Fiftly 3 whereas I might have made more flourifh and oftcntation of reading , to have vouched the au- thorities , and foraetimes to have enforced or noted upon thera,yet I have abftained from thatalfo, and the reafon is jbecaufe I judged it a matter undue and prepofterous to prove rules and maximes 5 wherein I had the example of M"^ Littleton and M'^ Fitzher- hert^ whofe nv ritings are the inftitutions of the lawes of England, wherofthe one forbeareth to vouch any authority altogether, the other never recitetha booke, but when heethinketh the cafe fowcakeof credit in it felfe , as it needs a furety ; and thefe twq I did far more efteem i\\2XiWPercktHgs or }A^ Stam- ford that have done the contrary : well will it appear to thofe that arc learned in the lawes , that many of the cafes are judged cafes, either within the bookes or of fefh reporr,and moft of them fortified by jud- ged cafes , and fimilitude of realon , though in fome few cafes I did intend expreily to weigh downe the authority by evidence of reafon , and therein rather to corredthelaw , than either to footh a received error,or by unprofitable fubtlety, which corrupteth the fenfc of law, to reconcile contrarieties : for thefe rcafons I rcfolved not to derogate from the authorir

TheTrefacel

ty of the rules, by vouching of any of the authority of the cafes, though in mine owne copy I had them quoted: for although themcanneffe of mine owne pcrfon may now at firft extenuate the authority of this colle(5lion , and that every man is adventrous to controulc , yet furely according to Gamduels rea- (bn, if it bee of weight^time wilifettle and authorize it 5 if it be light and wcake, time will reprove it ; So that, to conclude, you have here a worke without a- ny glory of affeded novelty ,or of method,or of lan- guage, or of quotations and authorities , dedicated oncly to ufe, and fubmitted onely to the cenfure of thclearncd, and chiefly of time.

Laftly, there is one point above all the reft, I ac- compt the moft matcriall for making thefe reafons indeed profitable and inftru(5iing, which is, that they be not fet downe alone , like fhort darke Ora- cles, which every man will be content ftill to allow to bee true , but in the meane time they give little light or diredion j but I have attended them, a mat- ter not pradiccd , no not in the Civill law to any purpofe ; and for want whereof indeed, the rules arc but as provcrbes , and many times plaine fallacies, with a cleereand perfpicuous expofition , breaking them into cafes, and opening them withdiftindi- on$, & fomtimes (hewing the reafons above where- upon they dependjand the affinity they have with o- ther rules. And though I have thus with as good di(- crction and fore-fight as I could,ordcred this work, and as I might fay , without all colours or fliewes husbanded it be ft to profit , yet ncverthelcffe not

C wholly

Thefrefaces

wholly f rufting to mine own judgment , having col- leded 3 oo.of them,! thought good before I brough t them all into form, to publiih fome few, that by the tafte of other mens opinions in this firft, I might re- ccivc"either approbation in mine owncourfe, or bet- ter advice for the altering of the other which remainj for it is great reafon that that which is inten- ded to the profit of others, (hould be guided by the conceits of others »

PvEGULAE.

iT^jure non UMom cauja ^\ea ^roximafpeBatur* •■- fol.u

2 ATon potefl adduci exceptio ejufdem reiiCuju4 petitur dijjolutio. 5

3 VerbafgrtiMaccipiuntur contra proferentem^ p

4 Sji^dfub cert a forma concejsum vet refervatum eji^non trahititr ad valorem vel compenfattonem ,

22

5 NeceJ^itas inducit privilegium quoad jura privata,

6 Corporalii injuria non recipit afiimationem defw

turo» ^9

7 Excufat aut extenuat deliBum in cafitalibMy quod,

non operatur idem in civtlibm, 31

S ty£fiimatio prateriti deliBi ex po^faBe nunquam

crefcit* 33

9 St*9d remedio defiituitur ipfa re valet ^ fi culpa ab-

fit. 54

10 Ferbageneralia refiringantur adhabilitatemrei

velperfona. 43

1[ I Jura fang^inU nuHo jure civili dirimi poffitnt • 44

12 Receditur aplaatis jurif potitft quam injuria^ne deliBa maneant impunita. 5 ^

1 3 Non accipi debent verba in demon Brationem fal- fam^qua competum in limitationemyeram . 54

C 2 i^ Licet,

14 Licet diffofiuo deintereffe futurofit inutilU ^ ta^ nten^oteft fieridecUratio pracede/ts qudtfortia- tut effeBum interveniente novo aBu» 5 6

1^ In crimmAlibm fufficit generally malitia intenti- onii cumfaBoparisgradw. 59

16 Mandata licit a re^tpiunt jlriBam imerpretatio-

nem^fedillictta Utam d* extenfivam^ 60

1 7 X> efide dr officio J udicis non recipnur qudcflio^fed defaentiafive error fit JudicisfivefaBu 61

1 8 PerfenaconjunBa aquiparatur tmerelje proprio.

Ip Non imp edit claufuU derogatoria qua minus ah

eadempoteBate res dtffohamur a quihw confti'

tuuntur-^ 6"/

JO uiBfii inceptui cuJM perfeBio pendet ex volumate

partium revocari poteB ^fiautem pendet ex vo^

luntate terttA perfome vel ex comtngemtjrevoca"

rinonpotefi, yi

21 Claufula vel difpofitio inutilis perpr<efumptionem

remotam vel caufam expoftfaBo non fulcitur.y^

2 2 Non videtur confenfum retinuijje^ fi quis ex pra^

fcriptominantiS aliqaidimmutavit, 8r

2 3 Ambiguttas verhorum latens verificationefupple-

tur^ nam quod exfaBo oritur amhiguum verifi-

cationefaBi toUitur- 82

24 Licita bene mifcentur^ formula nifi jurU oh Het.

2 5 Trdtfentia corporis toUtt err or em nominU, & Veri- tas nommistoUit errorem demonfirationu* 8 6

THE

THE

MAXIMES OF

THE LAW.

In jure non remota caufajed proxima fpeElatur^

Twere infinite for the law to judge the caufes of cau- fesjand their impulfions one ofanotherjthcrefore itcon- tenteth it felfe with the im- mediate caufe 3 and judgeth of ads by that, without looking to any further de- gree. As if an annuity bee granted fro confiUo imfenCo ^,j^^g j^ & mpendendoj and the grantee commit treafon,

whereby

wherby he is imprifoned, fo that the gnntor cannot have accefs unto him for hiscounfcljyec ncvertheles the annuity is not determined by this nonfeafancey y cr it was the grantees a(5l and default to com»nit die treafon, whereby the imprifonment grew : But the law looketh not fo faire, but excufeth him, becaufe the nor giving counfell v\ as compulfary, and no: vo- luntary, in regard of the jmprifonmcnt, Litt.cap. ^^ ^^^ Parfon ma ke a leafe, and be deprived or re-

2 H.4.5. fignc, the fucccfTors (ball avoid the leafejand yet the 2^.H.8.2. c3.u^Q. of deprivation, and more ftrongly of a refigna- tion moved from the party himfelfc y but the law rc- gardeth not that , becaufe the admifllion of the new Incumbent is the ad of the Ordinary.

So if I be feifed of an advowfon in grofTej'and an ulurpation bee had againft me , and at the next avoi- dance I ufurpc arere,! fhall bee remitted, and yet the prefentation, which is the ad remote , is mineowne ad; but the admiflionof my Clerk,whereby the in. heritancc is reduced to me, is the ad of theOrdinary^ i H.7.i;. So if I covenant with I.S. a ftranger in confidera- tion of naturall love to my fon,to ftand feifed to the ufe of the faid LS. to the intent he fhall infeoflfe my fonne 5 by this no ufe arifeth to I.S. becaufe the law- doth refped that there is^no immediate confiderati*- on between me and I.S.

So if I be bound to enter into a ftatute before the Mayor of the Staple at fuch a day,for the fecurity of I ooi.and the obligee before the day accept of mee a leafe of an houfe in fatisfadion,this is no plea in debt upon my obligation , and yet the end of thatflatute

was

'0)

wasbutfccurity of money : but bccaufe the entring into this ftatute it felfe , which is the immediate a<3 whcrcunto I am bound, is a corporall ad which lieth not in fatisfa^ionjthereforc the law taketh no cgn/I- deration that the remote intent was for money.

Soif I make a feoffment in fee, upon condition M.40.&41.EI. that the feoffee fhallinfeoffe over, and the feoffee be Jui'usWm- dilfeifedj&adifceccaftj&thenthefeorfcc bind him- "'rc^rq'o'rr^^^ felfe in a flatute, which ftatute is difcharged before ic treircveieni the recovery of the Iand,tbis is.no breach of the con- (j'f|g^'||b^"'^ dition , bccaufe the land was never liable to the fta- ^' ' ' * tute,andthepolfibility that it fhould be liable upon the recovery, the law doth not refpeift.

So if I enfeoffe two,upon condition to enfeoffcj& one of them take a wife,the condition is not broken, and yet there isaremote poflibility that the jointe- nant may die,and then the feme is entitled to dower.

So if a man purchafeland in fee-(imple , and dye without iffue , in the firft degree the law rcfpedeth dignity of fexe and not proximity, and therefore the remote hcire on the part of the father fhall have ic before the neere hcire on the part of the mother : but in any degree paramount the firft the law refpe- ^eth not,and therefore the nfe^re heire by the grand- mother onth€ part of the father,ftiall have it before the remote heire of the grandfather on the part of the father.

This rule faileth in covenous z6is , which though they be conveighed through many degrees and rea- ches , yet the law taketh heed to the corrupt bcgin- ning,andcouQtechallasone entire ad.

As

(4)

As if a feoffment be made of lands held by Knights

fervice to I.S. upon condition that within a ccrtaine time he (hail infeoffe LD. which feoffement to I.D. Ihall be to the ufe of the wife of the firft feoffor for her jointurej&c. this feoffment is within the ftatute oi^Z'H,^,ftamdolu6 circuitu nonpurgatur*

In like manner , this rule holdcth not in criminall ad:s 5 exceptthey have a full interruption , becaufe when the intention is matter of fublhnce , and .that which the law doth principally behold, there the firft motive will be principally regarded, and not the laftimpulfion. As if I.S. of malice prcpenfed dif- charge a PiftoUat I.D.and mifTeth him,whercupon hee throwes downe his Piftoll,andflyes,andI.D. purfucth him to kill him, whereupon he tumeth and killeth I.D.with a Digger 5 if the law ihould confi- der the laft impulfive caufe, it fhould fay, that it was in his owne defence 5 but the law is othcrwife , for it is but a purfuance and execution of the firft murthe-

44 Ed.?. rous intent.

But if I.S. had fallen downe his Dagger drawne, and I.D. had fallen by haftc upon his Dagger, there I.D. had been felo defe^znd I .S .(hall go quit. Alfo you may not -confound the ad with the exe- cution of the aftjnor the entire ad with the laft part, or the confiimmation ofthe ad. For if a diffeifor enter into rcligion5the immediate Lit.cap.dc difc ^^ufc is from the party , though the difccnt be'caft in law : but the law doth but execute the ad which the party procureth , and therefore the difccnt fhall not bind, (s^ fici convey Co,

If

(5)

If a Icafe for yeeres be made rendring a rent , and ^^•^^^'^ theieflce make a fcoflfement of part, and thcleflTor enrcr,the immediate caufe is from the law in rerpe(5J: i4-H.8.fo.4, of the forfciturejthough the entry be the zd of the ^^* party 5 but that is but the purfuance and putting in execution of the title which the law giveth, and therefore the rent or condition fhall be appointed.

So ih the binding of a right by a difccntj you are toconfider the whole time from the diffeifin to the difcentcaft, and if at all times the perfon be not pri- viledgcd, thedifcent bindcs.

And therefore if a feme covert be diffeifed^ and the Baron dieth, and (hee taketh a new husbandjand ^ ^-7.^4. then die difcent is caft : or if a man that is not mfra 3. & 4.P.& m. 4. Mari£\ bee diffeifed, and hee returne into Eng- ^' ^^i- land, and goe over fea againe, and then a difcent is caft 3 this difcent bindeth bccaufe of the interim when the perfons might have entered , and the law refpc(5teth not the ftate of the perfon at the laft time of the difcent caft5but a continuance from the very dilfeifed to the difcent.

So if Baron and feme bee, and they joine in a feoflfement of the wives land rendring a rent, and the Baron dye, and the feme take a new husband be- fore any rent day,and he accepteththe rent,the fcofif- mentis affirmed for ever.

JSTonpotefi adduc't excepio ejufdfm rei^ cuju6 R^gula 2, fetiturdtjjolutio, TT were impertinent and contrary in it felfc/oi the •*^Iaw to allow of a plea in barre of fuch matter as is

D to

to be defeated by the fame fuit 5 for it is incIudedjO- thervvife a man (hould never come to the end and ef- fe<5t of his fuitjbuc be cut off in the way.

And therefore if tenant intaile of a roannour, whereunto a vilieioe is regardant, difcontinuc and dyCy and the right of the entaiic defcend to thevil- leine hiaifcife, who brings ^formedon , and the dif- continuee pleadeth villenagejthis is no plea , becaufc the devefting of the mannor , which is the intention of the fuit, doth include this plea , becaufe itdeter- mineth the villenage.

So if tenant in ancient deraefne bee diffeifed by the Lord , whereby the fcigniory is fufpcnded, ancj the difleifee bring his aflize in the Court of the Lord, FranckefeeisQoplea, becaufe the fuiteis brought to undoe the diffeiff. and fo to revive the feigniory in ancient demefne. 7.H.4 55>. So if a man be attainted and executed , and the

7.H.5.44. ]xQi^Q bring a ^vrit of error, upon the attaindor , and the corruption of blood by the fame attaindor bee pleaded to interrupt his conveighing in she fame writ of error, this is no plea , for then hee were without remedy ever to reverfe the attaindor.

So if tenant intaile difcontinue forlit'e rendring arent , and the ifluc brings ^foymedon^ and the war- ranty of his anceft or with alTcts be pleaded againft 3- .Ed.3.32. hini^andtheaffetsislaidtobee no other but his re- verfion with the rent, this is no plea^becaufe the/or- medon which is brought to undoe this difcontinuance doth inclufively undoe this new reverfion in fee with the rent thereunto annexed.

But

(7) But whether this rule may take place where the

matter of plea is not to bee avoided in the fame fuite but in another fuit,is doubrfull ; and I rather take the law to be that this rule doth extend to fuch cafcs/or otherwifc the party were at a mifchief, in refped the exceptions and bars might be pleaded crofle either of them in the contrary fuir, and fothe party altoge- ther prevented & intercepted to come by his right.

So if a man be attainted by two feverall attaindors^ and there is error in them both , there is no reafon but that there ihould be a remedy open for the heire to reverfe thofe attaindors being erroneous, as well if they be twenty as one.

And therefore if in a writ oT error brought by the heire ofone of them jthe attaindor fliould be a plea peremptorily ,and fo again if in error brought of that other,the former ihould be a plea, thefe were to ex- clude him utterly of his right ; and therfore it ihould be a good replication to fay that hce hath a writ of error depending of that alfo , and fo the Court ihall proceed ; but no judgement fhall bee given till both pleas be difcufTed : and if either plea bee found with- out error 5 there (hall bee no rcvcrfall either of the one or of the other : andi^hec difcontinuc cither writjthen flialli'- be no longer a plea: and fo of feve- rall outlawriv^s in a perfonall adion,

Andthisfeemethtomee more reafonable, than that generally an outlawry or an attaindor ihould be no plea in a writ of error brought upon a divers out- lawry or an attaindor, as 7.//. 4. and 'j»H,6> fcemeto hold, for that is a remedy too large for the

D ^ mif-

(8) mifchicfe 5 for there Is no rcafon but if any of the outlawries or attainders be indeed without errour, but it fhould be a peremptory plea to the perfon in a writ of error as v/eilas in any other adion.

But if a man levie a fine S^ conn fame e de droit come ceo qtie tl ad defon done y and fu tfer a recovery of the lame lands ^and there be error in them both, bee cannot bring errour firft of the fine , becaufe by the recovery his title of error is dilcharged and re- leafed in law mcLfiie^ but hee rauft begin with the error u pon the recovery (which he may do,becau fe a fine executed barreth no titles that accrue</^pvy5z^ temps after the fine levied) and foreftore himfelfeto his title oferror upon the iine: but fo it is not in the former cafe of the attainder ; for a writ of errour to a forcner attainder is not given away by a fecotidjex- cept it be by exprefTe words of an ad of Parliament, but onely it remaineth a plea to his perfon while he livetfajondtothe conveyance of his heire after his deiBDh;.

But if ain an levie a^ne where 'he hath nothing in the land, which inureth by way of conclufion onely, and is executory againft all purchifes and new titles whkh fhall grow co^tk^ Conufor afcerwarxl's , and he purchaife the land , 3Bd faff^r .-'r'^overy to thfc Conufee, and in both -fine arid recovery , there is rc- ror .T\:nsRncis J anu4 bzfrons ^ and wiUlookcfor- war<^,aindbarrc:himofhisvvrir of error brought of therecovery, and therefore it will come to the rea- fonof the firft cafe ofihe artaindor, rhat he muft rc- piy thathc hath a writ alfo depending of thciame line, and fo demand Judgment.

To

(9) To returne to our firft purpofe^like law it is if te- nant in taile of two acres make two feverall difconti- nuancesto feverall perfons for life rcndringarenr, and bnngethaformecioju of both , and in the forme- don brought of white acre the revcr/ion and rent re- fcrved upon blackeacreis pleaded , and /o cotitrary. I take it to be a good replication , that he hath a/or- 7nedon alfo upon that depending , w hereunto the te- nant hath pleaded the difcent of the rever/ion of white acre , and fo neither fhall be a barre ; and y et there is no doubt but ifina formedon the warranty of tenant intaile with affets be plcadedjit is no repli- cation for the iffue to fay, that a Praci^e dependeth brought by I.S. to evi6t the affets. But the former cafe ftandeth upon the particular

reafon before mentioned.

Verba fortiu6 acctpimtur contrsfroferentem. ^^i'^'

T^His rule, that a mans deeds and his words iliali ^ be taken ftronglieft againft himfelfe , though it be oae of the moft common grounds of the law, it isnotwithftandingaruledrawneoutofthedepthof reafon; for iirft it is a Schook-mafter of wifdome and diligence in making men watchfull in their owne bufinefle,nextitis author of much quiet and cer- tainty, and tnat in two foi ts : firft, becau fe it fwou- rcth a(fls and conveyances executcd,taking them ftiil beneficially for the graunteesand pofiftifours ; and fecondly^becaufe it makes an end ofmanyquefti- ons and doubts about confhucSiion of words .* for if

the

' " (to)

the labour were onely topicke out the intention of the parties5cvery Judge would have afeverallfenfc, whereas this rule doth give them a fway to take the law more certainly one way .

But this rule^as all other which are very generall, 3 s but a found in the aire, and commeth in fometimes tohclpe and make up other reafons without any great inftruClion ordiredion^except it bcduely con- ceived in point of difference , where it taketh place, and where not; and fir ft we will examine it in grants, and then in pleadings.

The force of this rule is in three things , in ambi- guity of words, in implication of matter , and dedu- cing or qualifying the expofition of fuch grants as were againft the law,if they were taken according to their words. 2.R.?.i8. And therefore if I.S. fubmit himfelfe to arbitre-

2I.H.7.J9. mcnt of all adions and fuites betweenc him and LD. andl.N. itrefts ambiguous whether the fub- miffion fhallbee intended coUedive of joint a(5li- ons onely, or diftributive of fcverall adionsalfoj butbecaufethe words fhall bee taken ftronglieft a- gainft I.S. that fpeakes them , it fhall be underftood of both : for if I.S. had fubmitted himfelfe to ar- bitrement of all adions and fuites which hee hath now depending, except it be fuch as arc betweene him and I .D. and I.N . now it fhall bee underftood coliedive onely of joint adions, bccaufein theo- thercafe at large conftru<5lion was hardeft againft him that fpeakes, and in this cafe ftrid conftrudion is hardeft.

So

(II)

So if I graunt ten pounds rent to B;u*on and femc^ s.Aff.p. lo. and if the Baron dye that the feme fliall have three pounds rent, becaufe thefe words reft ambiguous whether I intend three pounds by way of encrcale, or three pounds by way of reftraint and abatement of the former rent of ten pounds , it fliail bee taken ftronglieft againft me that am thegrauntorjthatitis 3 .pounds addition to the ten : but if I had let land to Baron and feme for three lives^rcferving ten pounds fer annum y and if the Baron dye rcferving three pounds, this (hall bee taken contrary to the for- mer cafe, to abbridge my rent onely to three pounds.

' Soifldemife omnes bofcos meos in villa de dale ^g'^'lb"- 1 for yeares, this pafTeth the foile, but if I demifc all my lands in dale exceptisbofcff^this extendeth to the trees onely and not to the foile.

So if I low my lands withcorne , and let it for ycares , the come paffeth to my lelTee , if I except it not 5 but if I make a Icafe for life to I. S . upon condi- tion that upon requeft hec iliall make me c a leafe for yeareSjand I.S. foweth his ground , and then I make requeft, I.S. may well make mee aleale excepting his corne, and not breake the condition.

So if I have free warren in mine ownehand , and ^/^^'f^^ let my land for life , not mentioning the warren , y et ^ ' the leffee by implication *flLill have the warren discharged and extract during his leafe : but if I let the land i^na cumltbera warrenna^ excepting white acrCjthere the warren is not by implication re- fervcd unto me eithertobeinjoyedorextinguiflied,

but

(12)

but the leafee fhall liave warren againft me in white acre.

ip. Afl.pi.io. So if I.S. hold of mee by fealty an^ rent onely, and I grant the rent , not fpeaking of the fealty, yet the fealty by implication fliall pafTe, becaufe ray grant fhall be taken (Irongly as of a rent fervice, and not of a rent fecke.

44.Hd.3a9. Ocherwife had it been if the feigniory had beene by homage, fealty, and rent, becaufe of the dignity of the fervice , which could not have pafTed by in- tendment by the grant of the rent : but if I be feized

a6,air.pi.6<?. of the mannor of Dale in fee, whereof I.S. holds by fealty and rent, and I graunt the mannor , excepting the rent, the fealty fhall pafTe to the granteCjand I.S . fhall have but a rent fecke.

So in grants againft the law , if I give land to I.S» and his heires males, this is a good fee-fimple,which is a larger eftate than the words feem to intend, and the word (males)is void •' But if I make a gift cntaile refer ving a rent to me and the heires of my body,the words {of my body) are not void,and to leave it a rent in fec-fimple ; but the word (heires j and all arc void, and leaves but a rent for Jife , except that you will fay, it is but a limitation to any my heirc in fee- llmple which fliall be heirc of my body 5 for it can- not be a rent entaile by refervation.

But if I give land with my daughter in franckc marriage, the remainder to I.S. and his heires > this grant cannot bee good in all the parts, according to the words: for it is incident to the nature of a gift in francke marriage , that the donee hold it of the

donor.

03) donor , and therefore my deed fliall bee taken fo ftrongly againft my felfc , "^ that rather than the re- i*e^^,[Jf ^ ^e maindcr fhallbe void , thefrancke marriage though le contrary,en. it be firft placed in the deed fhall be void as a franck ""^ ^"c '" "«

erant quant

marriage, ^ lunpa^dd

But if I give land in francke marriage referving to fau ne poir c- mce and my heires ten pounds rent , now the franck f^°*j7(i°rpferra marriage ftands good and the refervation is void,be- void^auter- caufe it is a limitation of a benefit to my felfe, and^fnt'""" ^^' nottoaftranger. ^ , ^ ^ d"nS^«

So if I let White Acre, Blacke Acre , and Greene de Sm Ander- Acre to I.S. excepting White Acre, his excepti-^^^'l^^"'^" on IS voide , bccaule it is repugnant 5 but if I let vvaimcfley the three Acres aforcfaid 3 rendring twenty fhil-Juft-P.4o- lings rent, viz, for White Acre tenMlings, ^ndfJ^^^^'J^ for Blacke Acre ten fhillings , I fhall not diftrainc at dc Warwick & all in Greene Acre , but that fhall bee difchargedofS"'^\^'^^i=y ^"

•' "^ coni.banco.

my rent. 4.H.6.za.

So if I graunt a rent to I .S. and his heires out of z6.^s:.pi66, my raannour of Dale, & obligo manerium & omnia 4^-Ed.?«J*. bona C^ cat alia mea fufer manerium ft ddiBumexi" fientiaaddiftringendumper BalivumDomini Regis : this limitation of the diftrefTe to the Kings BailifFe is void, and it is good to give a power of diftrelle to I.S . the grauntee and his Bailiffes.

But if I give land intaile tenend' de cafttalihw iEd.4.f. Dominif per redditum viginti [olidorum & fideltta- tern : this limitation of tenure to the Lord is voide, and it (hall not bee good , as in the other cafe , to make a refervation of twenty fhillings good unto my fdfe, but it fhall be utterly voide as ifno refcrva-

E tion

(14) tion at all had been made s and if the truth be that I that am the donor hold of the Lord paramount by ten fhillingsonely jthen there fliall bee ten fhillings onely rcferved upon the gift entaile as for ovelty. ii.Ed.j.49, SoitI givelandtoI.S. and the heires of his body, 31. & 5z.H.8.andfordefaultoffuch iffue quod tensmentum pya- pio" ^f' ^i^^»^ revert at ur ad /. A^. yc t thefe words of rcfer- j j?H."<j?i4f " vation will carry a remainder to a ftranger. But if I letwhiteacretoI.S. excepting ten Mlings rent, thefe words of exception to mine owne benefit fhall never inure to words of refervation.

But now it is to be noted , that this rule is the laft to be reforted to, and is never to be relyed upon but where all other rules of cxpofition of words faile 5 and if any other come in place , this giveth places And that is a point worthy to be obferved general- ly in the rules of the law, that when they encounter and crofTe one another in any cafe , it be underftood which the law holdeth worthier , and to bee prefer- red ; and it is in this particular very notable, tocon- fider, that this being a rule of forae ft ridneffe and ri- gour, doth not as it were its office, but in abfence of other rules which are of mprc, equity and humanity; which rules you fhall afterwards find fet downw^ti their expolitions and limitations. t, tf^tn -ff* . ,-: , ; But now to giveatafte of them to thisi prefent purpofe, it is a rule that generall words ihall never be ftretched too farre in intendment, which the Civili- ans utter thus : J^erhageneralta reftrwgumur adha^i bilitatemperfonie^vel ad apthudmem ret. r4.AiX.pi.25. Therefore if a man grant to another Common m-

tra

(15) tra metas &bundas vilU de daUy^wd part of the ville is his feverall , and part his wafte and Comraonjthe grauntee fhall not have Common in the Several], and yet this is the ftrongeft cxpofition againftthe grantor.

So it is a rule3 Verba ita [unt imelligenda , ut res Lit.cap.condic. magis valeat quam pereat : and therefore if I give land to I.S. and his heires , reddend. qmnque Itbras a^nuatim to I.D. and his heires , this implies a con- dition to me that am the grantor; yet it were a ftron- ger expofition againft mec, to fay the limitation fhould be void,and the fcoffcment abfolute.

So it is a rule5that the hw will not intend a wrong, io.Ed.4. t. which the Civilians utter thus : Ba efl accipiendam- terpretano^ qu^vitio caret. And thereforelfthe exe- cutor of I.S. grant omnia bena & catalla fua ^iht goods which they have as executors will not paffe, htczwknoncon^at whether itmaybeadevaftation, andfoa wrong 5 and yet againfl the trefpaffer that taketh them out of their hand , they fhall declare quod bona fuacepit.

So it is a rule, that words are fo to be nnderftood, that they worke fomewhatjand be not idle and fri- volous ; "verba aliquid operari deb em , verba cum ef- feBufunt acciptenda. And therefore if I buy and fell you the fourth part of my mannor ofdale , and fay nor in how many parts to bee divided , this (hall bee conftrued foure parts of five^and not of ^.nor 7.&C. beciiufe that it is the ftrongeft againft me; but on the other fide, it fhall not be intended foure parts of four parts, or the whole or foure quarters 5 and yet that

E 2 were

(1^)

were ftrongeft of all , but then the words were idle andofnone effed.

5.H.6.ao. So it is 3 rulc, Divmatio non merpretatio eft,qu<t

omnino recedtt a litera : and therefore if I have a fee farme rentifluing out of white acre often (hilhngs, and I reciting the famerefervation doe grant to I.S, the rent of five fhillings fercipena* de reddit' pre- dzH' & de ommhu4 terriscf temmemis meismdale^ with aclaufe of diflrelTe, although there be attumc- ment yet nothing palfeth ou t of my former rent, and yet that were ftrongeft againft me to have it a dou- ble rent, or grant of part of that rent with an en- largement of a diftrefte inthe otherland, butfor that it is againft the words, becaufe co^ulam verbo- yum indicat accefttonem in eodemfenfu^znd the word de {angUce out of) may be taken in two fenfes, that is, either as a greater fumme out ofalefte , or as a charge out of land, or other principall intereft ; and that the coupling of it with lands and tenements, viz, I reciting that I am feifed of fuch a rent often ihillings J doe grant five fhillings percipiend' deeo- dem reddii it is good enough without atturnemenr, becaufe perciptend' de&c* may well bee taken for farcella de c^r. without violence to the words, but

' if it had been de reddif' prediB' although I. S. be the

perfon that payeth mec the forcfaid rent of ten (hil- lings, yet it is void , and fo it is of all other rules of expoflcionofgrants when they meet inoppofition with this rule they are preferred.

Now toexanainethis rule in pleadings as we have done in grants, you fhall findc that in all imperfe<5li-

ons

(17) ofls of pleadingSjWhcther it bee in ambiguity of

words and double intendments , or want ofcertain-

ty and averments, the pica fliall bee ftridly and

ftrongly againft him that pleads.

For ambiguity of words, if in a writ of entry upon diifeifin , the tenant pleads jointcnancy with I.S.of thegittandfeoffement of I.D.judgc- ment de brief e^ the demandant faith that long time before I. D. any thing had , the demandant him fclfe was feifed in fee quoufque ^rediB' I »D .fiifer foffefio- nem ejus imravit ^ and made a joint feoffemcnt, whereupon he the demandant re-entred , and fo was feifed untill by the defendant alone hee was dif- fcifed 5 this is no plea , becaufe the word zntra- vit may bee underllood either of a lawfuU entry, or of a tortious , and thchardeft againft him ilull bee taken, which is, that it was a lawful! entry, therfore he Ihould have alledged precifely that ID. difjeifnit*

So upon ambiguities that grow by reference, j.Ed.iJ.Dy.es. Ifanadion of debt bee brought againft I.N. and I.P.Shcriffes of London upon anefcape, andthe plaintiffe doth declare upon an execution by force of a recovery in the prifon of Ludgatc fub cujloMa l,S, if I.D, then Sheriffes in i.K.H.S.and that hee fo continued p^ cuftddta 7.5. e^ /.c?, in 2. King H. 8 .and fo continued///^ cuflodta. I.N.&I. L . inj.K.H.S. and then was fuffered toefcaperl.N* & I.L. plead that before the efcape fuppofed at fuch a day anno fuperita in narratione fpedficato the faid LD. and I.S. ad tunc vie ec omit es futfe-

rcd

(18)

red him to efcapejthis is no good plea, becaufe there bee three yeeres fpecified in the declaration , and it ihiU be hardcft taken that it was i. or 3.H.8. when they were out of office : and yet it is neerly induced by tht adtunc vicecomites ^ which fliould leave the intendment to be of that yeere in which the declara- tion fuppofeth that they were Sheriffes, but that fuf- ficeth notjbut the yeare muft be alledged in fa(ft,for it may be miffclaid by the PlaintifFe , and therefore the Defendants meaning to difcharge thcmfelvesby a former cfcape, which was not in their time, muft allcdge it prccifely^ i6,H.8. p^jj. incertainty of intendment , if a warranty col-

laterall be pleaded in barre , and the pl-aintifc by re- plication to avoid the warranty, faith, that bee cn^ tred upon the pofTelfion of the defendant, non confat whether this entry was in thehf e of the anceftcr, or after the warranty attached : and therefore it fhall be taken in hardeft fenfe, that it was after the warranty defcendcd, if it be not otherwife averred. ^^ Hd"^^* ^^^ impropriety of words, ifa man plead that his ^^* ■ •^' anceftor died by proteftation feifed, and that I.S. a- bated,&c. this is no plea , for there cannot bee an a- batement except ther e be a dying feifed alledged in fadl,andan abatement fhal not be improperly taken fordifleifin in pleading car farols font fleas.

For repugnancy, ifa man in avowry declare that hec was feifed in his demefne as of fee of white acre, and being fo feifed did demife the faid white acre to I, S, habendum the moity for 21. yeeres from the date of the deed , the other raoity from the furren-

dcr.

dp)

dcr,expiration,or determination of the eftate of I. D. , qui tenet fr^tdiB' medietatem ad terminuminA[iiA re^^^«^' 40 .s. rent, this declaration is infufficienc, becaufe the feifin that he hath alledgcd in himfelfe in hisdemefneasof fee in the whole , and the ftate for life of a moity are repugnanr^ and it {lull not bee cu- red by taking the laft which is cxprefled to control! the former, which is but general! and formal! , but the plea is naught , and yet the matter in law had bin good to have intituled him to have dift rained for the whole rent.

Butthefamereftraint followes tliis rule in plea- ding that was before noted in grants : for if the cafe befuchas falleth within another rule of pleading, this rule may not be urged.

And therefore it is a rule that a barrc is good to a 9 Ed.j common intent, though not to every intent. As, if a *'' debt be brought againft five executors 5and three of them make default, and tv^o appeare and plead in barre a recovery had againft them two of 300^. and nothing in their hands over and above that fumme.If this barre fhould be taken ftronglieft againft thera, it fhould be intended that they might have abated the firft fuit,bccaufe the other three were not named,and fo the recovery not duely had againft them 5 but be- caufe oft his other rule the barre is good: for that the more common intent will fay that they two did onely adminifter, and fo the adion well confider ed, rather than to imagine, that they would have loft the benefit and advantage of abating the writ. So there is another rule, that in pleading a man

fliall

fol.i

(20)

fhall not difclofc that which is againft himfelfe : and therefore if it bee matter that is to bee fet forth on the other fide, then the pica ihall not be taken in thehardeft fenfe^but in the moft bencficiall, and to be left unto the contrary party to allcdge. is.H.R.Dy. ^ And therefore if a man bee bound in an obligati- on, that if the feme of the obligee doe deceafc before the feaft of Saint John the Baptift, which fhall be in the yeere of our Lord God 1598. without iffueof her body by her husband lawfully begotten then li- ving, that then the bond fhall bee void, and in debt brought upon this obligation the defendants plead that the feme died before the faid feaft without iffueof her body then living: if this plea fhould bee taken ftrongUeft againft the defendant ^ then fhould it bee taken that the feme had iffue at the time of her death , but this iflue died before the feaft', but that ftiallnotbee fo underftood,becaufe it makes againft the defendant , & it is to be brought in of the plaintififes fide, and that without traverfc. So ifin a detinue brought by a feme againft the executors ofher husband for her reafonablc part of the goods of her husband, and her demand is of a raoity , and fhee declares upon thecuftomc of the Realme by which the feme is to have a moity, if no iffue be had betweene her and her husband , and the third part if there be iffue had,and declareth that her husband dicth without iffue had between them 5 if this count fhould bchardlieftconftrued againft the party, it fhould be intended that her husband had if- fue by another wife, though not by her , in which

cafe

ca(e the feme Is but to have the third part likcvv^Ife ; but that (hall not be fb intcndedjbecaufe it is matter of reply to be fhewcd of the other (ide.

And fo it is of all other rules of pleadings , thefe being fufficient not only for the ex '(fbtxpounding of thefe other rules , but ohiter to (hew. how this rpl^ which we handle is put by when it meets wich any other rule.

As for Ads of ParliamentjVerdids, Judgements^ &c. which are not words of parties : in them this rule hath-ftf* place at all, neither in devjfes and wills upon fev^afl reafons jbut more efpecially it is tp^bc noted , that in evidence it hath no place , whiclj jjet leenies to have fome affinity with pleadings^rpcciai- ly when demurrer is joyned upon the evidence-

And therefore if land be given by will by H. C« to hisfonLC. andtheheires males ofhis body b'egot- tenjtheremaindertoF.Candthe heirs males ofhis body bcgotten^the remainder to the heires males of the body of the devifor^the remainder to his daugh- ters. C and the heires df'her body , with a claufeof perpetuity jand the queftion comes upon the point of forfeiture in anaifize taken by default, and evidence is given,and demurrer upon evidence, and in the evi- dence given \o malntaine the entry of the daughter upon ^forfeiture, it is not fet forth nor averred that the devifor had no other iffue male,yet the evidence is good cnough,and it (hall bee fo intended 5 and the rcafbnhereofcannotbee, becaufe a Jury may take knowledge of matters not within the evidence , and the Councontrariwife cannot take knowledge of a= ny matters not within the pleas : for it is ckere^ that

F if

(22)

if the evidence had bii altogcchcr reraote,& f-ot pro- ving the inTucthere^although the Jury might find it, yet a demurrer might vvelbe taken upon the cvidece. But if I take the reafon of difference to be between pkadingSjwhich are but openings of the cafc^Sf evi- dences which are the proofs of an ifTue^for pleadings b; ing but to open the verity of the matter in fad in- differently on both parts, hath no fcope & conclufi- ontodircd thcconftru(aion& intendment of them, and therefore muft bee certain 5 but in evidence and proofs the ifTue which is the flate of the aucflion and conclufion fhall enclinc and apply all tb^proofes as tending to that conclufion.

Another reafon is, that pleadings muft be certain, becaufe the adverfe party may know wherto toan- fwer,or elfe he were at a mifchiefe, vhich mifchiefe " is remedied by a demurrer j but in evidence if it bee jfhort,impcrtinent, or incertaine, the adverfe party is at no mifchiefe , becaufe it is to bee thought that the Jury will pafle againft him;yet neverthelefTe the Ju-- ryis not compellable to fupply the defedofevi-. dcnce out of their own knowledge , though it bee in '. their liberty fo to doe, therefore the law alloweth a demurrer upon evidence alfo,

Meg.^ ^odfuh certa forma concejium vel refervdtum efi non trahitur ad valorem vel comfenfationem, ' I ^Helaw permitteth every man to part with his •*■ own intereft^and to qualifie hisowD grant as ic pleafeth hirafelf,and therfore doth not admit any al- lowance or recompcpce if the thing be not taken as it isgrantedo. Sa

(23)

So in all pofits a ^render ^\i I grant Comon for ten i 7.h.^. io. beaftSjOr ten loads of wood out of nay copps^or ten loads oF hay out of my meads to bee taken for three yeercSjhe fliall not have Common for 3o.beafts5 or 3 ©.loads of wood or hay the third yeare if heefpr- beareforthefpaceoftwo yeares , here the time is certain and precifc.

So if the place be limited, or if I grant Eftovers to be fpent in fuch a houfe^or ftone towards the repara- tion of fuch a CaftlCjalthough the grantee do burne of his fuell and repaire of his own chargejyet he can demand no allowance for that he took it not.

So if the kinde be fpecified, as if I let my Park rc- ferving to my fclfe all the Deer and fufficient pafture for them, if I doe decay the game whereby there is no DecrCjI fliall not have quantity of pafture anfwe- rableto the feed of fo many Deere as were upon the ground when I let itjbut am without any remedy ex- cept Ireplenifh the ground again with Deere.

But it may be thought that the reafon of thefe ca- fes is the default and laches of the grantor, which is not fo.

For put the cafe that the houfe where theEft overs ihould be fpcnt be overthrowne by the ad of God, as by tempeftjor burnt by the enemies of the King, yet there is no recompence to be made.

And in the ftrongeft cafe where it is in default of the grantor , yet he fhall make void his owne graunc rather than the certain forme of it fhould be wreftcd to an equity or valuation.

As if I grants Common uhicunq^ averia me a iermty

F 2 the

i^,R

(24)

the Commoner cantwt otherwife entitle himfelfe ,' except that he averre that in fuch grounds my beads have gone and fed , and if I never put in aay^buc oc- cupy my grounds otherwife, he is without remedy 5 but if I put in , and after b^ poverty or otherwife I defift, yet the Commoner may continue 5 coptrari- wife, it the words of the grant had been quandocuH- que averia me a ierint^ for there it depends continual- ly upon tlie putting in of my beads, or at lead the general! feafons when I put them inj not upon every houre or moment.

"^wtMlgrdni tertUm advocationem to LS. ifhee negled to take his turne ea vice^ht is without reme- dy : but if my wife bee before intituled to Dower, and I dye 5 then my hcirc fhall have twoprefent- ments^and my wife the third, and my grauntec fhall have the fourth j and it doth not impu^ne,this rule^t all , becaufe the graunt ihall receive that cp^ftru- dion'at the firft that it was^ intetided j fMchan avoi- dance as may bee taken and enjoyed; as if Ig^raunt H 8 Dv.58 froxtmatH advocattonem tol .Dand then graunt pr^?- xtmdmddvocationemto\S.xhXs{h2X\hQt\nicndtd the next to the next, which I may lawfully grant or difpofe. SlBdtrey

But if I gX3X\x.froximam advocattonem tolS , and I.N. is Incumbent, and I grant by precife words,//- lam advocAttonem^quam pojf mortem^ refignationemy trarifl'atUnem^^el de^rivanonem LN *tmrne,dme fo' re contigerit^ now rl e grant is meerly void , becaufe I had granted that before^ and it cannot bee t^ken a- gaiaft the words.

(»f)

Nece^itas tnducit p'tv'tkgium quoad jura frivata, ReiruU y.

'TpHelaw chargcth no man with default where

"■• the ad is compulfory , and not voluntary , and where there is not a confent and eledion ; and there- fore ifeithcr there bee an impofTibility for a man to .doeotheiwire,orfo great a perturbation of the judg- ment and reafon as n prefumption of law mans na- ture cannot overcome ^ fuch necefsicy carrieth a pri- 4-Eci.5.cond, viledge in it felfe.

Necellity is of three forts, neceflity ofconfervati- Stamf. on of life, neceifity of obedieace^and neceflity of the 3(51 of God or of a ftranger .

Firft of confcrvation of life , If a man fteale viands Stamf. to fatisfie his prefcnt hunger , this is no felony nor larceny.

So if divers bee in danger of drowning by the ca- fting away of fomc boat or barge, &.one of them get to fome plancke, or on the boats fide to keepe him- {^\k above water, and another to lave his life thrufl: him fromit5whereby he is drowned; this is neither fe defendendoviox by mifadventure5but juftifiable.

So if divers felons bee in a Jaile , and the Jailc by Cond. t j .e.pa- cafualty is fet on fire , whereby the prifoners get j^°h''^v forth, this rs no efcape, nor breaking ofprifon. Kebk."

So upon the Statute,that every Merchant that fet- ^4H 7.29. teth his merchandize on land without fatisfyingthe^^j ^^i Qjflomer or agreeing for it( which agreement is con- 4 e^-^.-o. flrued to be incertainty)flial forfeit his merchandize, ''°'^^'^- and it is fo that by tcmpeft a great quantity of the

merchan-

merchandize is cafl over board , whereby the Mer- chant agrees with the Cuftomer by eftimation , which falleth out fliort of the truth, yet the over- quantity is not forfeited; where note that neceffity difpenfeth with the dired letter of a ftatute law. iit.pi.4.i9- So ifa man have right to land 5 and doe not make 1 4.H 4.;o. ^^^ ^"^^y ^^^ terrour of force , the law allowes him B.38.k.6.ii. acontinuall claime, which (hall bee as beneficiall

39^.H.6./o. fault of appearance by cretain de eau^ and avoidc

his debt by dure[je^ whereot you fhail finde proper

cafes elfewherc.

The fecond neceflity is of obedience , and therc-

Ed.'^.'i6o.cor. fore where Baron and Feme commit a felony, the

Fuzii. Feme can neither be principal nor acccfrary,becaufe

the law intends her to have no will , in regard of the

fubjedion and obedience fhe owes to her husband.

So one reafon among others why Embafladours

are ufed to bee excufed of pra(5tices againft the State

where they refide, except it be in point ofconfpira-

cy 5 which is againft the law of nations and fociety,is,

becaufe non co-nflat whether they have it in mandatif^

and then they are excufed by neceflity of obedience.

So ifa warrant or precept come from the King to

fell wood upon the ground whereof I am tenant for

life or for y eeres , I am excufed in wafte.

B.42.Ed.j.<;. The third neceflity is of the adl of God, or of a

B.waft.j I, ftranger , as if I be particular tenant for yeeres of a

42.Ed 3 .6. houfejand it be overthrowne by grand tempeft , or

i9.EJ.?.per thunder & lightning,or by fuddcn floods,or by inva-

Th.Fitzh.wa ^^^^ of enemies , or if I have belonging unto it fomc

Cot-

(27)

Cottage which hath been infe(5lcd , whereby I can jzej.?. procure none to inhabite them , no vvoikcman to re- Fj zh.Waft, paircthcm,andfotheyfall downjinallthefecafcsl '^^^'^ am excufed in waftc : but of this laft learning when '^'^ *^*^ * aRdhowthea(5tof God and ftrangers doe cxcufCj there be other particular rules .

But then it is to bee noted, that ncceflity priviled- geth only quoad juraprivatay{ot in all cafes if the ad: that fhould deliver a man out of the ncceflity bee a- gainft the Comonwealthjneceffity excufeth not; for frivtlegiuM non v^let contra remfublicam: and as ^n- Other isiithy neceJsitaspubUca major eliquampriva- ta : for death is the laft and fartheft point of particu- lar necefsity, and the lawimpofeth it upon every fubjed, that hee prcfcrre the urgent fcrvice of his Prince and Country before the fafcty of his life : As if in danger of tempeft thofe that arc in the ihip throw over other mens goods , they are not anfwe- rable: but ifa man be commanded to bringOrdnancc ormunitionto relieve any oftheKings towns thatare diftrefled', then he cannot for any danger'of tempeft juftifie the throwing of them overboard/or there it holdethwhichwasfpokenbythcRomanejWhenhe alledged the fame necefsity of weather to hold him from imbarquing , Nfcejfe efl ut eam^ non ut zivam. So in the cafe put before of husband and wife, if they joine in committing treafon, the necefsity of o- bedience doth not excufe the offence as it doth in fe- ^ ^ g j> iony^becaufe it is againft the Commonwealth . shdiey. * ' ^^^

So ifa fire bee taken in a ftreet, I may Juftifie the '^-J^-s-io-pcr pulling down of the wall or houfe of another man to z^.^fl^pi. j5o

/

(28)

fiive the row from the fpreading of the fire ^ but if I be affiled in my houfe in a City or Towne , and di- ftrefTcd, and to fave my life I fet fire on mine own houfe, which fpr^adeth and taketh hold upon other houfes adjoiningjthis isnot juftifiablCjbuc lam fub- }:6t to their adion upon the cafe , becaufe Icannoc refcuc mine own life by doing any thing which isa- gainft theComonvvealth.-ButiHthaJ binbu:a pri-

6.Ed.4.7.per yate trefpafTi'^as the going over anothcrs ground, or the breaking of his inclofiire when I am purfucd for the fafeguard of my life, it is juftifi ible.

4.H.7.2. This rule-admitteth an exception when the law

doth intend fomc fault or wrong inrhe party that hath brought himfclfe into the neceillty : fo that is necejsit^ culpabtlif. This I take to bee the chiefc' reafon why fe^pfum defendendo is not matter of jufti- fication 5 becaufe the law intends it hath a com- mencement upon an unlawfullcaufe, becaufe quar- rels are not prefumed to grow without fom: wrongs dchcr in words or deeds on either part, arid the la\^ thatthinkethitathing hardly triable in whofe de- fault the quarrell began , fuppofeth the party that^ kilsanotherinhisowne defence not to bee without iiralice 5 and therefore as it doth not touch hini in the higheft 'degree , fo ic putteth him to fue'out'his par- don of courfe, and punifheth him by forfeiture of goods: for where there cannot bee any malice or wrong prefumed, as where a man affailcs me to rob me, and I kill him thlt aflfaileth mee ; or if a Woman kill him that aflailethhcr to ravifh hetjitisjuftifi- able without any pardon.

So

U9) So the common cafe proveth this exception, that ai.H.r.xj. is J if a mad man commit a felony, hee (ball not lofe his life for it jbecaufe his infirmity came by the A(fl of God : but if a drunken man commit a felony , hee ihall not bee excufed becaufe his imperfedion came by his owne detault 5 for the reafon and lofTe of de- privation of will and ciedion by neceflity and by in- icaaity is all one, for the lack of (arhitriumfolutum) is the matter: and therefore as //?//nw//^ culpahilif f xcufeth not, no more doth necejutas culpMis.

« ■ . - ' — ■ ■ ^-i-

C^rpffalu iffjttr$a nmrfctfu itffmoMnem ' Reff,6,

defutun*

THe law in many cafes that conceme lands oj: goods doth deprive a man of his prefcnt reme- dy >aflil turneth him over to a further circuit of reme- dy, c«wcher than to fuffer an inconvenience : but if ^ be queftlon of perfonall paine,thelaw will not com- pcll him to fuftaifie itandexpedrenledy , becaufe it holdcth no damage a fu0icient recompence for a wrong which is corporall. , . ., ^7

As if the Sheritfemakea falfereturne that I am r.Ed.4.8«; iummoned,whereby Ilofe my land 5 yet becaufepf xhciticonvenienceofdrawing all things to incertairi- ■ty and delay , if the SherifFcs retume ihould not bee oredited , I am excluded of my averment againftit, imd am put to mine adion of deceit agajnft the She- •f ifpeand Sunamoners : butif the Sheriife upon a Caf* retume a Cfpi c$ffm^ & qu^dffiiangmdminfrifonay j,h.5.?;

G there

(so) there I may come in and falfific the rcturnc of the Sheriffe to favc my imprifonment.

So if a man menace me in my goods, and that hec will burnecertaine evidences of my land which hce hath in hishand,if I will notmakeunco him a bond, yet if I enter into bond by this terrour , I cannot a- void it by plea , becaiife the law holdeth it an incon- venience to avoid a fpeciality by fuch matter of a- verment, and therefore I am put to minea(5tiona- gainft fuch a menacer : but if he reftraine my perfon, 7.Ed.4,i I. or threaten me with a battery , or with the burning of ray houfc, which is a fafety and protedionto my perfon, or with burning an inftrument of manumiffi- on, which is an evidence of my enfranchifcment 5 if upon fuch menace or ^ureiTe I make a deed^I ihall a- void it by plca-i :' '''■''- c -> vr: r -^ v , '.^ I^H.8.I^ Soifatrcfpairerdriveawaymybeaftsovcrano- a.i.H.7.z8. thers ground, I purfue them to refcue them , yet am I a trefpaflfer to the ftrangcr upon whofe ground I canit ; bufifaman aflfaile my perfon, and! flye pver anothcrs ground;hbwam I no ff efpafe,'- J m.fi ihc: This ground lomc of the Ganonifts doe aptly in* ferreoutof Chrifts facrcd mouth, Amen^ej^cerpiA '*^*'-^^'^.'fipravfjlimenPum^whcveth€y fay veflimemumcom-' prehcndeth all outward things appertaining to a mans condition, as lands and goods, which they fay, are not mthc fame degree with that which is corpo- rall 5 and this was the reafon of the ancient lex taliO" niSy oiulusfroocuhidens pro demey fothat by thaC law corf or alii tnjuria eifpr£terito non recepit aflima' mnem / But our law when the inj.wry is already cxe-

cutcd

cuted & infli(5lcd5thinketh it beft &ti$fa<flion to the party grieved co relieve him in damage , and to give him rather profit than revengejbut it wil never force a man to tolerate a corporall hurt5& to depend upon that inferiour kind of fatisfadion, ut in dJimagiif*

t^cufdi aut extenukideliBum in capita libus, qudd- '-■ R*g'7» non operatur idem in civtUbm .

TN Capital! caufesin/4iwf»ii'/f«e the law will not ■'•puniih in fo high a degree/xcept the malice of the will and intention appeare; but in Civill trefpafTes and injuries that are of an inferiour nature, the law doth rathqr confide r the damage of the party wron- ged, tha© the malice of him that was the wrong do- er: and therefore^Af^ 7 r ^^,

The Jaw mak^s a diUference between killing a man liponitnalice fore-thought , and upon prefent heat: ^ if } giv(5*man (landerous words , whereby I dfWinifie him in his name and credit j it is notmatc- rial whether I ufe them upon fuddencholer'and pro- vocation, or offer malice , but in an ai^ion upon the cafe I (hall render damages alike.

So if amah be killed by niiradventure5as by an ar- row at Buts, this hath a pardon of courfe: but if a man be hurt Or maimed onely, an adion of trefpaffe liah,though it be done againfi the parties mind and stamf.i^. will, and he fhall be punifhcd in the law as deeply as if he had done it of malice. ^.Ed.4.7.

So if a Surgeon authorized to pradice, do through Stamf. i^ negligence in his cure caufc the party to dye , the

Qz Sur-

(32) . Surgeon (hall not be brought ifl queftbn of his life^ and yet if he doe onely huf t the wound, whereby the cure is caft backe^and death enfues not, he is fubje^ to an adlion upon the cafe for his misfeifance.

So if Baron and Feme be ,and they commit felo- ny together, the Feme is neither principall norac- ^y.r ceifary,in regard of her obedience to the will of her husband : but if Baron and Feme join in committing a trcfpaflfe upon land orotherwiie, theadionmay be brought agdini! theifi bdthi - ^ ^ '

So if art infatit Withirt y eei-es df di?ftririon>or a mad

Ihan kill another, he (hall not be impeached thereof 5

but if they put out a tban^ eye, or doe him like cot-

3 < H ^ X X P°^^^^ ^^^ h^ ^^^^ ^ punifhed in trefpaflfe* * 'i> -'^

' Soinfelotileithelawiidm?tteththediJFerei!c^(bif

principall and acccfTary ,and if the principadldyc, ot

DC pardofied , the proceeding againft the acceffary

,y.H.4.i^. faileth : but iA'^trefpafre,if one command his man to

heit ydii , and the fervartc after thebaft^ry djye, y^^

your action of trefpafle ftands good againft Ihe Mi^

.-^>.,.^ .^^. ,„■ ^'^ ^L.

P

TH$ law conftrueth neither penall lawes5nor pc* nail fads by intendments , but confidereth the offence in degree , a$ it ftandeth at the time when it is committed J foas if any circqmftancc or matter be fubfeqnent , which laid together with the begin- img fhoiid feeme to draw it toa higher nature , yet

the

Us)

the law doth not extend or atnpHnc the offence.

Therefore if a man be wounded,and the percufTor * ^•w.4-i^ b voluntarily let goe at large by the Jailor, and after death enfueth of the hurt, yet this is no felonious cf- cape in the Jailor.

So if the Villein ftrike the heire apparent of the Lorded the Lord dicth beforejand the perfon hurt who fucccedeth to be Lord to the Villcine dieth af- ter, yet this is no pety treafon.

So if a man compare and imagineth the death of 6nc that after comracth to bee King of the land , not being any perfon mentioned within the (larute of 2 5, Ed.5.this imagination precedent is not high treafon. - So if a raanufe flanderous words of a perfon up- on whom fomc dignity after defcends that niaketh him a Peerc of the Realme, yet hee fhall have but a fimple adlion of the cafe , and not in the nature of a fiaidalum MagnAtum upon the flatutc.

So if John Stile fteale fixpence from mee in mo- ny , and the King by his Proclamation doth raife monies , that the weight of filver in the piece now of fixpence Ihould goe for twelve pence , yet this fliall remainc pety larceny and no felony : and yet in jdlcivill reckonings the alteration fhall take place: as if I contra(fl with a Labourer to doe fome"^/orke for twelve pence, and the inhaunfing of mony com- meth before I pay him , I fhall fatisfie my contrad: with a (ixpenny piece fo raifed.

So if a man deliver goods to one to keep,and after retaine the fame perfon into his fervice , who after- wards goeth away with his goods, this is no felony is.H.s.pi.z:

(34) by the Statute of 2 i.H.8. bccaufe he was no fervant at that time. ufr/?^

In like manner , if I deliver goods to the fervanc of LS. to keep, and after dye, and make I-S. my exe- cutor, and before any new commandement of I.S.to his fervant for the cuftody of the fame goods , his fervant goeth away with themjthis is alfo out of the

But note that it is faid prateriti del/Bi ; for any ac- celTary before the fad is fubjed to all the contingen- cies pregnant of the fad, if they be purliiancesof the t8.Eii2.i7^ fame fa^ : As if a man command or counfelloneto rob a man, or beat him grievoufly, and raurthcren-' fue,in either cafe he is acceifary to the rauithQv^quia in crimmalibm frafiantur academia . : i , / ,

Sequ/a p. Sl^odremedio deflmitur ipfa re vaktjiculfa, ahfiti\

THe benignity of the law is iuch,as when to pre* ferve the principles and grounds of law it depri- vcth a man of his remedy without his owne fault, it will rather put him in a better degree and condition than in a worfe 5 for if it difable him to purfue his adion, or to make his claimc, fometimcs it will give him the thing it felfe by operation of law without any ad of his owne , fometimes it will give him a more beneficiall remedy.

And therefore iftheheire of thedifTeifor which is in by difcent make a leafe for life , the remainder for life unto the diireifce,and the leflfee for life die , now

the

(35) thefrancktcflcment Is caft upon the difTeifee by a(ft in laWj^ therby he is difabled to bring hlsPrdcipe to recover his righr,whereupon the law jiidgcth him in his ancient right as ftrongly as if it had bin recovered and executed by a(5lion , which operation of law is by an ancient terme and word of law called a remit- ter 5 butif there may bee afsigncd any default or la- ches in himjCithcr in accepting the freehold,or in ac- cepting the intere ft that dravves the freehold , t hen the law denycth him any fuch benefit.

And therefore if the heirc ofthe difTeifor make a Litpi esz, leafe for yceres, the remainder in fee to the difTeifee, the difleifee is not remitted^ and yet the remainder is in him without his owne knowledge or afTentj but becaufe the freehold is not caft upon him by a(5l in ^

lawjit is no remitter, ^odmt a »

So if the hejre of the diffeifor infeoife the difleifee Lit.pi. es ?, and a ftranger , and make him livery , although the ftrangcrdie before any agreement or taking ofthe profits by the difTeifee , yet hee is not remitted, be- caufe though a moity bee caft upon him by furvi- vor 5 yet that is but Ju6 accrefcendiy and it i? no ca- sing ofthe freehold upon him by a c^ in law, but he is ftiil as an immediate purchafer,aad therfore no re- mitter.

So if the husband bee feifed in the right of his wife, and difcontinuc and dieth, and the Feme takes another husbandjwho takes a feoffementfirom the difcontinuee to him and his wife, the feme is f^f^ de^emcn not remitted 5 and the leafon is, becaufe fhee was UhyScml''^

once.^°p^"7'

(30 _^

Lit.pi.^^^. once fole , and fo a laches in her for not purfu- ing her right : but ifthefecfT^ment taken back had been to the fir (I husband and her fclfe ^Qie had been remitted. s.M.condic.g. Yet if the husb^nd difcontinue the lands of the wife, and the difcontinuce make a feoffcment to the ufeofthe husband and wife, fhee is not remitted j but that is upon a fpeciall reafon , upon the letter of theftatuteof 27.H.8.ofufes,that wifheth that the ceflui que u[e fhall have the poflcfsion in quality and degree as hee had rheufej but that holdeth place onely upon the firft vefting of the ule 5 for when the ufe is abfolutely executed and vefted, then it doth 54.H.8.Dyet g Infuemeerly the nature ofpoflfcfsions; asif tbedif- 49* continueehad made a feoiferaent infeetotheufeof

LS. for life, the remainder to the ufe of Baron and Rme,and lelTee for life dye, now the Feme is remit- ted, caufa quafupram

Alfoiftne heireofthe diffeifor makealealefor life, the remainder to the diflcifee,who chargetfi the remainder , and the leffee for life dies , the dif- feifce is not remitted ; and the reafon is, hisinrer- medling with the wrongful! remainder , whereby bee hath affirmed the (ame to bee in him , and fo accepted it : but if the heire of the diffeifor had granted a rent charge to the diffeifee , and after- wards madealeafe for life, the remainder to the diffeifee , and the leflee for life had died , the diflTei- fec had beene remitted , bccaufe there appcareth no afTent or acceptance of any cftatciathe ftechold,but • oaply of a collaterali charge.

So

So if the feme bee diSkikd and Intermarry with the diflfeifbr , who makes a le^e for life , readring ^ rent, and dietdi leaving a fonne by the fame feme, * '^' ^' and the fonne accepts the rent of the lelfee for life, and then the feme dies , and the lefTee for life dies , thefbnisnotreraittedjyetthcfrancktenement was 23.H.8pl.i07 aft upon him by ad in law , but becaufe hee had a- grecd to bee in the tortious revcrfionby acceptance of the rent, therefore no remitter.

So if tenant intaile difcontinu e , and the difconti- nuee make a leafc for life^the remainder to the iffuc intaile being within age, and at full age the lelfee for life fiirrendrefeh to the iftuc intaile, and tenant intaile dks, and Icffee forlife dies , yet the fame iffue is not remitted 5 and yet iftheifluehad accepted a feoflfe- mcnt within age,and had continued the taking of the ptofiti when he came of full age, and then the tenant intaile had died, notwithftanding his taking of the profits he had been remitted : for that which guides theremittcr,is,if he be once in of the freehold with- out any laches : as if the heire of the difTeiforen- feoffes the hcire of the difleifee who dies , and it de- fends to a fecond heire upon whom the franckete- nementis caft by defcent, who enters and takes the profits, and then the difTeifee dies,this is a remitter, Cdufa quafupra*

Alfb if tenant intaile difcontinue for life, and take Lit.pL^tf. afiirrender of the Icafce, now is hee remitted and feifed againe by force of the taile , and yet hee com- meth in by his owne 26t : but this cafe differeth 6:0m all other caies, becaufe the difcontinuance was

H but

(58) but particular at firft , aad the new gained reverfion

is but by intendment and necefsity of la w j& therfore is but as kvrcveal? initio y with a limitation to de- termine whenfoever the particular difcontinuance endeth,& the ftate cometh back to the ancient right. To proceed from cafes of rcmittcr,which is a great branch of this rule, to other cafes ; If executors doe redcemc goods pledged by their teftator with their own mony^the law doth convert fo much goods as

6.H.8.pl.^Dy doth amount to the value of that they laid forth,to themfelves in property, and upon a pica of fully ad- miniftred it (hall be allowed ; the rcafon is,becaufc it may be matter of necefsity for the well adminiftring of the goods of the teftatorjand executing their truft' that they disburft mony of their owne : for elfe per- haps the goods would be forfeited ^ and he that had them in pledge would not accept other goods but< inony5& fo it is a liberty which the law gives them, and they cannot have any fuitagainft themfelves 5 and therefore the law gives them leave to retainfo much goods by way of allowance : and if there bcc twoexecutors,andoneofthempaythe mony, hee may .like wife retain againft his companion if he have notice thereof^

3 jEiii J 87. gm if jj^gf g jjgg 3J, overplus of goods , above the-

value of that he fhall disburfe, then ought he by his claimc to determine what goods hee doth eled to have in value^or elfe before fuch cle(5^ionifhiscom-. panion doe fell all the goods , hee hath no remedy, but in fpirituall Court i for to fay he fhould bee te- a^c iacommon with himfeife and his companion

(3P) pro rata of that he doth lay out , the law doth rcje<5t

that courle for intricatenefte.

So if I have a leafc for yeeres worth 20^. by the yeere^and grant unto I.D, a rent of 10*. ayeere, and after make him my executor,now I.D.fhall be char- ip.H.gpi./.in gedwithaflets loi.oncly, and the other iqI. fhallbe ^"*^^jp allowed and confidered to him 5 and the reafon is, Rec.in Vaiu/ becaufethe not refafingMl bee accounted no la- Mi- ches unto him, becaufe an executorfhip is fium offi- cium^znd matter of confcienceand truft5and not like a purchafe to a mans owne ufe.

Like law it is, where the debtor makes thej.H^ij debtee his executor, the debt Ihall bee confide- Cond.i8'f. red in the afTets, notwithftanding it bee a thing in ""^J'P adion.

So if I have a rent charge , and graunt that up- on condition, now though the condition be broken, ^-Ed.^.cond, the grantees eftate is not defeated till I have made ^^^' my claim* buc if after fuch grant my father purchafe Lit.pl.isf. the land, and it defcend to mcc , now if the conditi- on bee brdken,the rent ceafeth without claime .-But if I had purchafed the land my felfe , then I had ex- tinded mine owne condition , becaufe I had difa- bledmy felfe to make my claime , and yet a condi- tion collateral! is not fufpended by taking back an e- »o.H.7.pcr ftate 5 as if I make a feoffement in fee, upon conditi- po^* onthat I .S . fliall marry my daughter,and take a leafe gar^f^*."'^ for life from my feoffee, if the feoffee break the con- dition, I may claime to hold in by my fee-fimple j but the cafe of the charge is otherwife, for if I have a

H 2 rent

50.H.6.pl. G Cannes ^i«

7.H.6.40.

^.Ed.i.Fitt. Atturnmcnts

(40)

rent charge ifTuing out of 20. acres, and grant the rent over upon condition^and purchafebut one acre, the whole condition is extin^a , and the pofsibility of the rent by reafonofthe condition, is asfijlly de- ftroyed as if there had been no rent in £jje.

So if the King grant to meethc wardfliip of I.S.' the fonne and heire of I.S.when it falleth,bccaufe an adion of covenant liethnot againft the King, I fhall have the thing my fclfe in intereft.

But if I let land to I. S .rendring a rcnt,with a con- dition of re-entry, and I.S. bee attainted, whereby the leafe commeth to the King , now the demand upon this land is gone, which (hould give me bene- fit of re-entry , and yet I fhall not have it reduced without demand 5 and the reafon of diifcrcncc iSjbe- caufe my condition in this cafe is not taken away in right, but one ly fufpended by the priviledge of the poffefsion : for if the King grant the leafe over , the condition is revived as it was.

Alfo if my tenantfor life graunt hiseftate to the King, now if I will graunt my reverdonover , the King is not compellable to atturnc,therefore it fhall -palfe by grant by deed without atturament ,

So if my tenant for life bee , andl graunt my re- verfion per outer vie^ and the grauncee dye , living cei que vie^ now the privity bet weene tenant for life andmee is not reftored , and I have no tenant in ffje to atturne, therefore I may paflc myreveriion widi- out mtuwmcm. S^adnota.

Soiif I have a nomination to a Church, and an- other hath the prefentation, and the presentation

comes

(40 comes ID the King5now becaufe the King cannot be attendant, my nomination is turned to an abfolutc patronage.

So if a man bee feifed in an advowfon , and take a ^.p j ^ ^ ^ wife, and after title of: dower given her, joinein Videcomra z. impropriating the Church, and dieth , now be- E^^o-S-qn^' caufethe Feme cannot have the turne becaufe of the del feme ha^-''' perpetnall incumbency, fliee fliall have all the turns vowfon eft de- during hcrlife; foritrfiallnotbe difimpropriated to pro|na!c"a" the benefit of the heire contrary to the graunt of tc- touts jours nant in f ee-fimple . ?n sn ^V^-' ^^

But if a man graunt the third prefentmcnt to I.S. Rcp^j.foX. and his heires, and impropriate the advowfon, now the grauntee is without remedy , for he tooke his graunt fubje(5^ to that mifchiefc at firft , and therefore it was his 'laches , and therefore not like the cafe of the dower 5 and this graunt of the third avoidance is not like tertia pars advocationis , or medietas advocationis upon a tenancy in common t)fthe advowfon 5 for if two tenants in common bee 5 and an ufurpation bee had againft them , and the ufurper doe impropriate, and one of the te- ■nants in common doe relcafe, and the other bring his writ of right demedietate advocationis :md re- cover, now I take the law to bee that becaufe te- nants in common ought to joine in prefenrment, which cannot now bee, hee fhail have the whole patronage : for neither can there bee an apporti- onment , that hee fhould prefent all the turnes, apd his Incumbent but to have a moity of the profits, nor yet the w5t of impropriation ihall not bee de- feated.

(40

4?.r.d.-^. feated. But as if two tenants in common i>cc ofa Ward, and they joine in a writ of right of Ward,and one releafe, the other fhall recover the entire Ward, becaufc it cannot bee divided ; fo fhall it be in the o- ther ca fc 5 though it bee an inheritance , and though he bring his a(5iion alone.

As if a difTeifor be diffeifed , and the firfl diflTeifcc releafe to thefecond difTeifor upon condition, and a dcfcent be cafl, and the condition broken 5 now the meane difTeifor whofe right is revived Ihall enter notwithftanding thisdifcent, becaufe his right was taken away by thea<^ ofa ftrangcr.

Lecontnry But if Idevife land by the flatute of 32.H.8. and

»Srtm Trous ^^^ ^^^^^ °^^^^ ^^^^^^"^ ^"^^^^ and makes a feoffment cafe,p3.3 2. in fee, and the feoffee dieth feifcd,this difcent binds, Ehz.inCom. and thetc fhall not bcaperpctuall liberty of entry, jaJTb°'^ ^'* " "Po^ ^^^ ^^^"^^ f hat he never had feifon whereupon vide 7.R.Z. he might ground his a(5lion , but hee is at a mifchiefe ^^i^E^^'il er ^y ^^^ ^^"^ laches : and like law is of the Kings Pa- Finchdcfi.*^^'^ tentee 5 for I fee no reafonable difference bctweenc them and him in the remainder , which is Littletons cafe.

But note , that the law by operation and matter in h^ will never countervaile and fupply atitle groun- ded upon a matter of record , and therefore if I bee entituled unto a writ of error, and the land defcend unto mee, I fhall never bee remitted, no more fhall I M. • • y-^- be unto an attaint, except I may alfo have a writ of right.

So if upon my avowry for fervices,my tenant dif- daime where I may have a writ of right as upon dif-

claimer,

claimer,if the land after defccnd to me, I fhali never be remitted.

FerbagenerAlU reftringumur ad habiluatem J?e^,io,

rei velp€rfon<£'

T T is a rule that the Kings grants fhall not be taken -■•orconftrucd toafpeciall intent 5 it is not To with the grants of a common pcrfon, for they (hall be ex- tended as well to a forrein intent as to a common in- tent J yet with this exception , that they fliali never be taken to an impertinent or a repugnant intent : for all words, whether they bee in deeds or ftatutes, or otherwife if they bee gcnerall and not expre fle and precife , Ihall bee reft rained unto the fitnefle of the matter or per fon.

As if I grant Common in omnihu^ terrumeis in Peik.pi.ios. D.and I have in D.bothopen grounds and feverall^it fliallnot bee ftretched to my common in feverall, much leiTe inmy gardens and orchards.

So if I graunt to a man omnes arbores meas crefcen- mH 8.j, tesftipra terras meas /» D. hee fhall not have Apple trees, or other fruit trees growing in my gardens or orchards, if there bee any other trees upon my ground.

SoiflgraunttoI.S. anannuityofx.l.ayeerepr^^i.Ed.j.^./^. confilto mpenfo ^ impendendo^ii I .S.be a Phy fitianj it mall be underftoodof hiscounfell in phyfickjand if he be a Lawyer,of his counfell in Law .

So if I do let a tenement to I.S .neer by my dwel- lii^ houfe in a Borough , provided that he fhall not

ere(^

(44) eredorufc any fliop in tlK fame without my li- cence 5 and afterwards I licence him to crcft a fhop, and I.S.isth^n a Miller , hee {hall not by vcrtueof thcfe generall words cre6l a Joiners iliop. 1 6 Eiiz ^^ ^^'^ ftatute of Chantries that willeth alllands

Dyer. ^' to be forfeited, given or imployed to a fuperftitious uCcy fhall not be conftrued of thcglcbe lands ofpar- fonages ; nay further , if the lands bee given to the Parfonof D. to fay a Maffc in his Church of D. this is out of the ftatute, becaufe it fhali be intended but as an augmentation of his glebe ; but otherwifc had it been if it had been to fay a Maflc in any other Church but his ownc.

So in theftatute of wrecks that willeth that goods wrackt where any live domcfticall creature remains inavcffell, (hallbe prcferved to theufeoftheow- nerthatfhall make his claimebythc fpace of one ycere, doth not extend to frefhviduals or the like, which is impofsible to keep without perifhing or de- ftroying it ; for in thcfe and the like cafes generall words may be taken,as was faidjto z rare and fbrrein intent, but never to an unreafonable intent.

lie^ui/t 1 1. J^^^ f^ngujnii nulla jure dvili dirtmipjfum*

nPHcy bee the very words of the Civill law," -** which cannot be amended to cxplaine this rule. Hdres eft nomen Juris ^ Fdhfieft nomen Natura: therefore corruption of blood taketh away the privity of the onc> that is, of the heire,btitnot

of

(49) of the other, that is, of the fbnne ^ therefore if a man be attainted and murthered by a ftranger, the eldeft lonne (hall not have the appcale, be- caufe theappealeis given to the heire, for the ^^^^^^'^ • youngeft fonnes whoare equall in bloud fhall not iiEd si?* have it ^ but if an attainted perfon be killed by his fonne, this is petty treafon, for that the pri- vitie of a fonne rcmaineth ; for I admit the law to be, that if the fonne kill his father br mother, it is pettie treafon, and that there remaineth (b much in our lawes of the ancient foot-fteps of Fotefias patris and naturall obedience, which by the law of God is the very inftance it (elfe^ and all other government and obedience is taken but by equity, which I addc, becaufe (bme have thought to weaken the law in that point.

So if land deicend to the eldeft fonne of a per- fon attainted from his anceftour, of the mother held 4n Knights fcrvice,the guardian (hall enter, and oufte the father, becaufe the lawgiveth the father that prerogative in refpeft hee is his fonne F.N.Bi.fo.145- and heire -^ for of a daughter or a fpeciall heire in taile he (hall not have it : but if the fonne be attainted, andthefacher covenant in con (idcra- tion of narurall love to ftand (eifed of land to his life, this is good enough to raife an ufe, becau/e the privity of a naturall aflfeftion remaineth.

So if a man be attainted and have a Charter of pardon, and be returned of a Jury betweenehis fonne and I. S. the challenge remaineth 5 for hee may maintaine any fuit of his fonne, notwith- ftanding the bJoud be corrupted.

I So

(50) So by the ftacutcof 21, the Ordinary ought to commit the adminiftration of his goods that was attainted, and purchaie his Charter of par- don to his children, though borne before the pardon^for it is no queftion of inheritance : for if one brother of the halfe bloud dye, the admi-

s-Ed^Adm. niftration ought to be committed to his other

*7' b. other of the halfe bioud_, ifthere bee no neerer

by the father.

3j. U.6.SS. So if the uncle by the mother be attainted, and pardoned, and land defcend from the father to the (bnne within age held infocagc, the uncle ftall be guardian in (bccage ; for that fivoureth fo little of the privity of heire, as the poffibility to inherit (hutteth nor.

But if a Feme tcaantin taileaflenrro theravi- ftier, and have noifliie, and her coufin is atcain- tedjand pardoned^and purchaleth the reverfion,

5 t<i 4 f • bee (hall not enter for a forfeicure. For though the hw giveth it not in point of ioheritance, but onelyas aperquifite toanyofthebloud fo hee be oext in eftate, y€t the recompcnce is under- ftood for the ftaine of his bloud, which cannot be confidered when it is once wholly corrup- ted before.

So iravilleiae be attainted, yet the Lord (hall have thei(!ue8ofhis villein borne before or af- ter the fittainder -y for the Lord hath them lure mtura but as the increa(e of a flock. RN^br.si^. ^are whether if- he eldeft fonne be attain- ted, and pardoned, the Lord (hall have aid of his tenants to make him a Knightjand itfeemeth

hee

(51)

be (hall ; for the words of the writ hath fillum pfimQ^enitum^ and not filium ^ htsredem^ and the Rcgifter. f©i. like writ hiith pur f Is marrier who is no heirc. 87.

l^eceditUY aplacitts juris ^ fotitu quam in]u- Keguh k. W<f 5 O" ddiBa maneant impunita,

THe law hath many grounds and pofitive learnings,which are not of the maxiraes and conckifions of realon, but yet ^re learnings re- ceived with thelaw/ec downe^and will not have called inqueftion : thefe may be rather called placita juris than re^iU juris 5 with fuch ma- xime§ the law will difpenfc, rather than crimes and wrongs {hould be unpuniflicd, quiafalmpe- pmli fupremA lex, and faluspoptrli is contained in the repreffing offences by punifhment.

Therefore ifanadvcufonbegrantedto two, and the hcires of one of them, and an ufurpation be had, they both fhail joyne in a writ of right of advoufon 5 and yet it is a ground in law, chat a writ of right lyeth ofnolelTe eftate than afee- fimple ; but becaufe the tenant for life hath no other feverall adion in the law given him, and alfothat the joynture is notbroken^and (b the te- nant in fee-fimple cannot bring his writ of right alone, therefore rather than he Iliall be depri- ved wholly of remedy, and this wrongunpuni- (hed, he (hall joyne his companion with him^ notwithftanding the feeblenefle of his eftate.

But if lands be given to two, and to the heires 4^£^ 3"«

I 2 of

(50

of one of them, and they leefein a Precipe by de- fault , now they (hall not joy ne in a writ of right, becaufe the tenant for life hath a feverall ai^tion, viz, a ^odei deforciat^m whichrefped the joyn- ture is broken.

So if tenant for life and his lefTor joyneina^ leafe for yeares, and the lefTee commit waftc, they (liali joyne in punifhing this wafte^and locus vaJiatM^gMgOQ to the tenant forlifcj and the damages to him in reverfion, andyetanadion of waftc lycth not f^r tenant for life, but becaufe he in the reverfion cannot have it alonejbecaufe of the meane eftate for lifejtherefore rather than the wafte (hall be unpunifhed, they (hall joyne.

45.Ed.5.3. So if two coperccners be, and they leafe the

ai.H.tf.i4. land ^and one of them dye^and hath iffue^and the leflee commit walle, the aunt and the i&ue (haH joyne in punifhing this wafte, and the iiTue fhall recover the moity of the place wafted, and the aunt the other moity and the entire damages 5 and yet aBio inpriarum memur c»mperfona^ but in favorabilihm magis attend! fur quod predejty qudw quodnoctt,

*o.Ea.a, So if a man recovers by erroneous judgement,

and hath iffae two daughters, and one of them^ is attainted, the writ of error (hall be brought

P.difccnt. 16- againft the parceners,, notwithftanding the pri- vity faile in the one.

3^.Eiiz, Aifo it is a pofitivc ground, that the acceflary

in felony cannot be proceeded againft, untill the principall be tryed •, yet if a man upon fub- cilty and malice fct a mad man by fomc device

to

(53) to kill him, and he doth (b, now forafmuch « the mad man isexcnfcd, becaufe he can have no willj nor malice, the law accountcth the incitor as principajlj though he beabfent, rather than th^ crime fliallgoeunpuniflied.

So it is a ground ot the law, that the appcale of murtlier goeth not to the heire where the par- ty murthercd hath a wife, nor to the younger brother where thf re is an elder 5 yetifthewifcpjt^.corone oaurther her husband, becaufe ftiec is the party 4^9. offendor,the appeale leaps over to the heire- and 5*^3*^ (*tff* foif the Ibnne and heire murther his iather, it foUo," goeth to the fccoud brother.

But if the rule bee one of thehigher fort of maximcs.that are re^uU rationales ^^nd not pQJitt- v£y then the law will rather endure a particular offence to efcape without punifbmentj than vio^ late fuch a rule.

As it is a rule that penall ftarutes fliall not bee taken by equity, andtheftatuteof i. Ed, 6» en- acts that thofe that are attainted for ftcaling of horfes (hall not have their Clergy, the Judges conceived, that this did not extend to him that (hould fteale but one horfe,and therefore procu- red a new adt for it in 2 . Ed, 6. cap, 3 3 . and they had reafbn for it, as I take the law^ for it is not like the cafe upon the ftatute o^Glofi, that gives PlGvf.4«7. the adion of wafte againft him that holds pro termmo vitavel anmrum. It is true, that if a man Lir.eap. holds but for a yeare, he is within the ftatutejfor ^^^^■>-^'^ ' it is robe noted, that penall ftatutes are taken ftridly and literally onely in the point of defi-

1 3, niHg

(54) Ti'ng and fctting downe the fad and the pimifli- tinent3& in thofe claufes that doe concernethem, and not generally in words that arebutcircum- (Vances and conveyance in the putting of the <:a{e, and ib fee the diverfity 5 for if the law be, that for fuch an offence a man (hall leefe his righ c hand, and the offender hath had his right hand before cut oif in the v/arre* , he (hall net lo(e his left hand, but the crime (hall rather pafle with- out the puDifbment which the law afligned, than the letter of the law fhould be extended ^ but if theftatuteofi. Ed,^, hadbeene, that hee that fhould ftcale one hor(e fliouldbe oufted of his Clergie, then there had beene noqueftion at all, but if a man had ftolne more horfts than one, but that he had beene within the ftatute, quia omne ma]Ui continet wfe minus.

Flcgulgi3. I^0f> gccipi debent verba in demonflrationem falfam qu£ C9mpet»nt in limit atienem veram.

T Hough falfity of addition or demonftration doth not hurt where you give the thing a proper name, yet ncvertheleflc if it ftand doubt- full upon the words, whether they import afalf© reference and demonftration, or whether they be words of rcftraint that limit the generality of the former name, the law will never intend er- ror or falfehood. ii.iiia.^. 191. Therefore if the Parifti of Hurft do extend into j7i^^'^ ^y" the Counties of Wiltfti- and BarkOi. and I grant

C55) my Clofe called Callis, ficuate and lying in the PariQi of Hurft in the countie of Wiklh.and the troth isjthac the whole Clofe lieth in the County of Barkfh. yet the law is, that it pafleth well enough, becaufe there is acertaincy fufficicntin that I have given it a proper name which the falfe reference doch not deftroy, and not upon the reaibn that thtfe words, in the CoHncyof Wiltfh.fliaii be taken to goecothe Parifh onely, and fo to be true infbme fort, and not to the Glofe, and Co to be falfe. For if I had. granted omnes terras mess in Parochia de Hurji in Com, IViltfh, and I had no lands in Wiltfti. but in Barkfh. nothing had pad:.

But in the principall cafe, if the Clofe called pEd^r. Callis had extended part into Wiltfli; and ^^•^'^■'^^• part into Barkfh. thenoncly that part had pafled ' ^^ which lay in Wiltfli.

So li I grant ^mnes ^ fingulas ttrras meji in ^?' Reg. tenura /. D, quas perquefivi de I, N; fh Jndentara dimi^enis fM*'L D. ffkciflcat/ If I ha^c ^and wherein (bme of the(e references aie true and the reft fiiKe, and no land wherein ^hey are ali true, nothingpaflfeth : as if I have landiorhe tenure of I. D. afid purchased off. N. hut not fpecififid in the Indenture to I. B. or if I hive land which I purch ifed of I.N .and fpecified inthe Indenture /of demife to I. B and notin theesnure of i D. "- Butiflhave -fome land wherein^llthefede- -monftrations are true, and Ibme wherein part of •them are true and part falfe, then flialJ they he Intended words oftfue litnifation to pafTe only

thole

(50

thofe lands wherein all thofe circumftances are true.

Regula 14. Licet ii^ejitio de interefefuturofit inutilis^ tamen poteft fieri declaratio pftscedens qu£firti' atur effeBumintervsniente nsvo aBu,

THe law doth not allow of grants except there be a foundation of an intereft in the grantor^for the law that will not accept of grants of titlcSjOr of things in adion which are imper- •fcd iHterefts, much leffe will it allow a man to grantor incumber that which is no iatercft at all but meerely future.

But of declarations precedent befor any inte- left veftedj the law doth alloWjbut with this di6 ference, (b that there be fome new ad or con- veyance to give life and vigour to the declarati- on precedent.

Now the bcft rule of diftinftion betweene grants and declarations, is, that grants are Hever countermandable not in refped of the nature of the conveyance or inftrument, though (bme- time in refped of the intereft granted they are, whereas declarations evermore are counter- mandable in their natures. " u^!f !., And therefore if I grant anto you, that if yoa

enter into an obligation to me of 100. '. and artcr doe procure me fuch a leafe, that then the fame obligation (hall be void, and you enter into (uch an obligation unto me, & afterwards doprocure

fuch

(57) fochaleafe, yet the obligation is fimplc, bec&ufe the dcfei lance was made of that which was not.

So \i I grant unto you a rent charge out ofiT-Edj white aac, and that it (hall belawfiill for you to diftraine in ail my other lands whereof I am now .feifed, and which I fhall hereafter purchafe, al- though this be but a liberty ofdiftrelTe, and no rent fave onely out of white acre, yet as to the lands afterwards to be purchafcd the claufe is voyd.

So ifareverfioa be granted to I. S. and I. D. i9Ed.3.^. a ftranger by his deed doe grant to I, S. that if '^^^^^• bepurchafethe particular cftatc, heewillatturne to the grant, this is a voyd atturnment, notwith- ftanding he doth afterwards purchafe the parti- cular eftate.

But of declarations the law is contrary 5 as if '^jlg^ir. thcdifleifecmakca Charter of feoffement to I. S. l^.^iiz.^ ' and aletterof atturney to enter and make livery and {eifme, and deliver the deed of feoffement, and afterwards livery and feifine is made accor- dingly, this is a good feofFement, and yet he had no other thing than aright at the time of the de- livery of the Chartetjbut becaufe a dsed of feofFc- ment is but matter of declaration and evidence, m.j8.&: and there is a new aft which is ihe livery (Iibfe- s^Eli^. quent, therefore it is good in law.

So if a man make a feoflfement to I. S. upon condition to cnfeoffe I. N. within certaine dayes, and there are deeds made both of the firft fe- 5^^^'^- ofFcment and the (econd , and letters of at- turney accordingly^ and both thofe deeds of

K fcotFemenr,

(58)

fcoffement, and letters of atturney are delivered aca time, fo that the fecond deed of feoffement and letters of atturney are dc livered when the firft feoffee had nothing in the land, and yet if both liveries be made accordingly, all is good.

So if I covenant with I. S. by indenture, that before fuch a day I will purchafe the mannour of D. and before the fame day I will levy a fine of the fame land, and that the (anie fine (hall be to certaine ufes which I expreflTe in the fame in- denture, this indenture to lewd vfes being but matter of dtclaration and countermandable, at my pleafure willfuffice, though the land be pur- chafed after, 5 becaule there is a new ad to bee done, viz. the fine. if.Eiiz. But if there were no new a(^, then otherwise it

2.7.Eiiz. 15 . asif I covenant with my fonne, inconfidcra- tion of naturall love, to ftand feifed unto his u(e of the lands which I (hail afterwards purchafe, yet the ufe is void ^ and the reaibn is, becaufe there is no new ad, nor tranfmutation of pofleA (ion following to perfeft this inception • for the ufe muft be limited by the feoffor, and not the feoffee, and hee had nothing at the time of the covenant. Gom.piowa. ^^ ^^I devife the mannour of D. by fpeciall Rigd'enscafeV name, ofwhichatthat time lam not (eifed, and after I purchafe it, except I make fome new pub- lication of my will, this device is void -^ and the reafbn is, becaufe that my death, which is the confummation of my will, is the ad of God, and not my ad, and therefore no (uch ad as the law require th. But

But ifl grant unto I. S. authority by my deed codemife toryeares, the land whereof I am now feifed, or hereafter fliall be feifed ; and after I purchafeihe lands, and I. S. my Atmrney doth demi(e them, chisis agooddemifej becaufe the d^mifeof my acturney is a new aft, and all one with a demile by my felfe.

But ifl morgage land, and after covenant with <f,.£U2. I. S. in confid ration of money which I receive of him, that after I have entrcd for the condition ^)rokcn, I will (land feifed to the ufe of the fame I.S. and I enter, and this deed is enrolled, and all within the fix months, yet nothing pafleth away, becaufe this enrolment is no new aft, but a per- feftive ceremony of the firft deed of bargaine andfde . and the law is more ftrongin that cafe, Becaufe of the vehement relation which tbeenrol- ment hath to the time of the bargaine and fale, at what time he had nothing but anakedcondition.

So if two Joyntcnants be, and one of them '.Ei<5.Br. bargaine, and fell the whole land, atid before the enrolment his companion dyeth, nothing palTeth of the moity accrued unto him by furvivor.

In criminalibia fu0cit generaiis malitia zV2-ReguIai5. tentionis cum faBop^irif ^radm,

*^^ ' Llcrimis havethetr conception in ^corrupt X^^intent^ and have their ebnfunimatjon and iC- fuing in fome particular faft ; which though it be not the fadt at which the In ention of the maie. ^^or levelled, yet the la\^giveth him no ad van- tage of that error, if another particular enfue of as high a nature, K 2 Therefore

ji.EUx.san- Therefore if an impotfbned apple be laid in dcrscafecom. ^ pj^ce to poifon I. S. and I. D. commeth by ^^^' chance and catethitj this is miirthcr in the prin-

cipal! that isaftor, and yet the malice /« iW/V;- ^»6> was not ggainft I. D. Cr.T.peace.30. So if a thiefe find the doore open, and come in by night and rob an houfe, and be taken with the manner, and breake a doore ro efcape, this is bur- glary, yet the breaking of the doore was without any felonious intent, but it is one enrire ad:.

So if a Caiiv( r be difchargcd with a murthc-

rous intent at I. S. and the Peece breake, and

ftrike into the eye of him that di/cargeth it and

Cave. killeth him, hehfeUdtfe^ and yet his intention

was not to hurt him (elf e 5 for felonia de fe and

murther arc crmma parts ^radw. For if a man

pcrfwade another to kill himftlfe, and bee pre*

(cnc when he doth (b, he is a murtherer.

Cr. luft. peace. But qudtre^ if I. S. lay impoifoned fruit for (bme

foi.18,1?. other ftranger his enemy, and his father or mother

come and eat it, whether this be petty trealon,

becaufe it is not altogether crimen parit gr^dm,

Regula 16. CMandatA licit a recipiuntJlriBam interpreta^ tionem^fedmicita latam (Jr extenfam,

IN committing of lawful! authority to another, a man may limit it as (itiiWy as it plealeth him, and if the party authorised doe tranfgrefle his au- thority, though itbe but in circumftance expref^ &d, it (hall be voydin the whole a^.

But

{61)

But when a man is author and monitor fo ano- ther to commit an unlawful! aft, then he {hall not excufe himfclfc- by circumftances no: porlued.

Therefore if I make a letter of arturney toI.S. ro.H.7.r^.if, to deliver livery and (eifin in the capitall Me(- r^.Hi.Dy.jjy. ruas;e, and he doth it in another place of the land, or betwcene the hourcsof2. and ^. and he doth it after or before ^ or if I make a Charter of fcotfement to I.D.ai'd f. B. and expreffethefeidn i^-El-Dyj^^.. robe delivered to I. D. and my atturney deliver "u P^^^^. it to I. B. in all thefc cafes the ad of the atturney ^ ' -* '^^' as to execute the el^ate, is voyd ^ but if I fay gene- rally to I. D.whom I racane onely to enfcoffe, and my atturney make it to his atturney, it (hall be in- tended, fiT.it is a livery to him in law. '^

But on the other fide. If a man command I. S. J^'f^r^^'*''"* to rob I. D. on Shooters-hill, and hee doth it on ^' °^''^^* Gads-hiil, or torobbe him fuch a day, and he doth it not hiinfeife but procureth I. B. to doe it • or to kill him by poyibn, and hee doth it by vio- lence ^ in all th fe cafes norvv^ithftanding the fafl: be not executed, vet he is accefTary neverthelefle.

But ificbc to kill I.S. and he killeth LD. mifla- ibidem.. king him for I. S. i hen the afts are diflant in fub- ftance, andheisnotaccefTiry.

And be it that the fafts be of differing degrees, and yet of a kind.

As if a man bid I. S. to pilfer away fuch ,,.mii/ thingsoutofahoufe, and precifely reftraine him "^ " • to doc it fbmetimes when he is gotten in with- out breaking of the houfe, andyctheebreaketh the houfe, yet hee is acceflary to the burglary :

K 3 fo!

for a man cannot condition with an unlawfull a^, but he muft at his pcrill take heed how hce puctcth himd'lfc into another mans hands.

Bat if a man bid one rob I. S. as hegoeth to iS.EiizinSan-Sturbridgc-faire, and he rob him in his hoiife, pi.Com^47f. ^^^' variance (eemes to bepf fubftance^ and he is nocacceflarie.

Regulaiy. Defde (j^ officio ludicis 7ion recipitur au^^ fii9^ fedde fcientia, five error fit I uris five faBi,

THelawdothfomuch refpedt the certaintie of judgement, and the credit and authority of Judges, as it will not permit any error to bee affigned that impeacheth them in their truftand office, and in wilfull abuftof the(ame, but only in ignorance, and miftaking either of the law or of the cafe and matter in fad".

F.N.br.foi. 11. And therefore if I will afligne for error, that

7.H.7.4- whereas the verdift pafled for me, the Court re- ceived it contrary, and fb gave judgement againft "■^' me, this (hall not be accepted.

3.H.¥.aff3. So if I will alledge for errouf, that whereas I. S. offered to plead a fuffictentbarre, the Court refufedit, anddrave me from it, thiserrour (hall not be allowed.

iUX>^. ii^i But the greateft doubt is where the Court doth determine of the verity of the matter in fa6t 3 (b that is rather a point of tryall than a point of judgement, whether it (hall be re-examined in crrour.

As

As if an appcale of Maihcm he brought, and i.Mar.f. the Courr, by the affiftance of the Chirurgians ad- jJ'jf^^o^V judge ittobc a Maihcm, whether the party grie- **' ^■*°^ ' ved may bring a writ of errour^ and I hold the Law to be he cannot.

So if one of the Prothonotaries of the Com- 8H.43. mon pleas bring an aflizeof his office, and alleage fees belonging to the fame office in certainty, and iflue is taken upon thefe fees, this iflue (hall be tri- j.Mar.Dy. 89. cd by the Judges by way of examination, and if j.Mar.Dy. i«. they determine it for the plaintiffe, and he have judgement to recover arrerages accordingly, the defendant can bring no writ of errour of this judgement, though the fees in troth be other.

So if a woman bring a writ of dower^ and the s.h.^»j- tenant plead her husband was alive, this fnall be ''f^t.^ie?^' tryed by proofesand not by jury, and upon judge- Ji air.V ' ment given on either fide no error lies. 3f.afl:9.

So if nul tiel record be pleaded which is to bee ^•^'^•4 3' tryed by the infpeftion of the record, and judge- fj^i^jz. ment be thereupon given, no error lyeth.

So if in theaffize the tenant faith, he is dttntee a1.afrpi.t4. dc dale & nient nofme Countee, in the writ this fhall *?'^'*4'^° be tryed by the records of the Chancery, and upon Judgement given no errour lyethobrii ni zsyinrh/

So if a felon demand his clergy? and read well and diftindly.and the Court who is judge thereof doe put him from his clergie wrongblly, errour (hall never be brought upon the attainder.

So if upon judgemmc given upon confdfion ^•^^•^* for default, and the Court doeafTeffedammages, ^* ■^'*"* the defendant (ball never bring a writ^ though

the

(^4) the damage bee outragiocs.

And it (ecmethinche cafe of maihcm , and (bme other cafes, that the Court may difmifle thcmfelves of di(^uiling the matter by examina- tion, and put it to a Jury, and then the pmy grie- ved (hall have his attaint ^ and therefore it fec- meth that the Court that doth deprive a man of his a'^ion, (hould be fubjed to an aft-ion 5 but that, notwithftanding, the law will not have, as was (aid in the beginning, the Judges czikd in queftion in the point of their office when they undertake to dilcu(rc the ilTue, and that is the true reaibn ^ for to (ay that the rea(bn of thefe cafes (hould bee, becaufe try all by the Court XI H^'i fliould be peremptory as tryall by certificate, rii-^fj*! (as by the Bi(hop in cafe of baftardy, or by the Marfhall of the Kmg &c. ) the ca(es are nothing alike 5 for the rea(bn of thofe cafes of certificate is, becau(e if the Court (hould not give credit to thecertificate, but (hould re-examine it, they have no other meane but to write againe to the fame Lord Bifhop, or the Qmc Lord Marfhall, which were frivolous, becaufe it is not to bee prefumed they would differ from their former certificate 5 whereas in thefe other cafes of error the matter is drawne before a fuperiour Court, to re-examine the errors of an inferiour Court : and therefore the true reafbn, as was faid, that to examine againe that which the Court had tryed, were in fubftance to attaint the Court.

And therefore this is a certaine rule in error, that error in law is ever of ftich matters as were

not

C^5> not crolTed by the record, as to alledge the death of the tenant at the tfmeofthe jndgemcnc given^ nothing appeareth upon record to the contrary.

So when the infant levies a fine, it appeareth F.N Br.ti. not upon the record that he is an infant, there- fore it is an error in fdd , and (haJl bee tried by in- fpedion during nonage.

But if a writ of error be brought in the Kings Bench, of a fine levied by an infant, and the Court by infpeaion and examination doch af- firme the fine^ the infant, though it bee during bis infancy, Ihall never bring a writ of error in the Parliament upon rhis Judgement • not but that er- i.r j.za rorlyes after error, but becaufe it doth nov^ap- peareupon the record that he is now of full age, therefore it can be no error in fad:. And there- F.NBr.ir. fore ifamanwill adigne for error that fadl, that whereas uhe Judges gave judpiementforhiro, the 9Ea4j. Clerkes entred it in the roll agafnfl: him, this error fhall nor be allowed, and yet it doth not touch the Judges bur the Clerks 5 but the rea- ibnis, if it be an error, it is an error in faft; and you fhall never alledge an error in fad contrary to the record.

*\Perfona coii^unHd aquiparatur Regula i S-.

interejjepnprio,

T He law hath thatrefpcft of nature andcon- junftion of bloud, as in divers cafes itcom- pareth and matcheth neerenefle of bloud with

L confideracion.

{661

ccnfideration of profit and intcreft:, yea, and in

fGOie cafes alioweth oHc more ftrorgly.

7.&8.Er»z. Therefore if a man covenant in confideration

of bloudj to ftand (cifed to the ufe of his brother,

or fonne, orneere kinfman, anufcis wellraifed

of this covenant without tranfmutation of po(^

feffion ; neverthelefle icistrue, that confidcrati-

onofbloud is not to ground a per/bnail contract

upon : as if I contrat^ with my ibnne, that m

confideration of bbud 1 will give unto him fuch

afummeofmony, this \s a nudum paBuwy and no

ajfumpfit lyeth upon it 5 for to fiibjed me to an

adion, there needeth a conGderacion of benefit,

but theulethelawraifeth without fuit oradiooj

and bcfides, the law doth match reall confiderati-

ons with reall agreements and covenants.

^9.Ei4.y. So if a (uit be commenced again ft me, my fbnne,

i9.Ed4.i*. or brother, I may maintaine alweil as hce in re-»

""al.niu. n^^^nder for his interefl:, or his Lawyer for his fee,

zz.H.6,^. ' and if my brother have a (iiit againfl my nephew

io.H^. Qj. coufin, yet it is at my election to maintaine the

I* .H.7.1'. c^u^ of my nephew or coufin, though the adverfe

party bee ncerer unto mee in bloud.

14.& I f .Elit. So in challenges of Juries, challenge of bloud is

ai.Ed.4.7r. as good as challenge within diflrefle, and it is not

om. 4XJ. material I how farre off the kindred be, Co the pe-

dcgrec can be conveyed in a certainty whether it

be ofthehalfe bloud or whole.

iy.H.rf.17. So if a man menace mee, that hec will impri-

ii'ilif ^%. ^"» ^' ^"^^ ^" ^°^y ^y ^^^^Cfj or '"y childe, ex- linJ^ti * cept I make fuch an obligation, I fiiall avoyd > jxd.4.1 . this durcfle, as well as if the durefle had becne to

mine

C^7) mine owne perfon : and yet if a man menace me, by takii g away or deftrudion of my goods, this is no good duiefle to plead 5 and the reafon is, be- S9-iU'9^i. caufe the law can make mc reparation of that lolTe, I'^f^S^^^' and Co it cannot of the other.

Soifamanundertheyearesofai. contraa for Pcrk.4. the nurfingot his lawfull childe 3 this contraft is '"^'^ ' good, and (hall not be avoyded by infancy, no more than if hee had contraded for his owne ali- ments or erudition.

Non imfedit claufula derozatoria^ quo mims^c^^l^ip, ah eadem ptefiate rts diffohamttr d quibm C9n» fiituuntur.

Acts which are in tbeir natures revocablejCan- not by ftrength of words be fixed or perpe- tuated, yet men have put in ure two meanes to bind themfelvcs from chang^'ng or diflblying that which they have ki downe, whtreof one is claufu^ h dero^atoria^ the other intcrpopio yitamenti^ whereof the former is onely pertinent to this pre- fent purpofc.

This claufM dfrog-noriit is by the common prafticall rerme called cUufuh non obfianu defu- turoejje^ the one weakening and difanuillng any matter part to the contrary, the other any matter to'come, and this latter is ihat only whereof wee

(peake.

The cUufuU de non dftante de futuro^ the law iudgeth to be idle and of no force, becaufe it doth

L a. deprive

(^8) deprive men of that which of all other things is raoft incident to humane condition, and that is alteration or repentance.

Therefore if I make my will, and in the end thereof doe adde fuch like claufe, [ Hjfb my will is if I ftiall revoke this prefenc will, or de- clare any new will, except the fime (hall be in writing, fubfcribed wich the hands of two wic- neffes, that (uch revocition or new decoration fliall be ucterlv voyd, and by thefe prefents I doe declare the lame rot to be my will, but this my former will to (tand ] any fuch pretended will ro theconrrarynotwichlianding ^ yec neverthelefle thisclaufeor any the like never fo exactly penned, and although ic doereftrame the revocation but in circumftance and not altogether, is of no force or efficacie to fortifie the former will againft thefecond, but I may by paroll without writing repeale the lame will, and make a new. z8.E«i.3.cap.7. So if there be a ftature made that noSherifFe »4.E<i.?. cap. 9. fliall continue in his office above a yeare, and if ** ^**' any Patent be made to the contrary, itfhail bee voyd, and if there beany claafula demnohflante contained in fuch Patent todifpence with this pre- fent ad, that fuch claufe alfo (hall be voyd , yet ne- verthelefle a Patent of the SherifFcs office made by the King with a non obfiante will be good in law, contrary to (uch ftatute, which pretendeth to ex- clude Kon objlantes^ and the rea(bnis,becau(e it is an inft^parable prerogative of the Crowne to di(^ penfe with politicke ftatutes and of that kind, and then the derogatory claufe hurteth not.

So

So if an ad of Parlament bee made wherein there is a claufe contained, that it (hall not bee law full for the King by authority of Parlianicnc during the (pace of feven yeares to repealc and determine the ^me aft, this is a voydclaule, and fuch aft may be repealed within the (even yeares, and yet if the Parliament (hould enaft m the na- ture ofthe ancient Lex Regia^ that there iTiould be no more Parliaments held, but that the King (hould have the authority of the Parlament ^ this aft were good in Law, quia petej^M fupre^maftip- fum i-jjulvere potejl^ Ugire non poteji : for as it is in the power of a man to kill a man, but it is not in his power to iave him alive and to reftraine him from breathing or feeling ^ fo it is in the power ofa Parliament to extinouiOi or transfer their owne authority, but nor whilft the authority remaines entire to rcftraine the funftions and cx- ercifesof the fa-iae authority.

Sointhe 28.ofK. H. 8. chap. 17. there was a flarure made, that all afts that paded in the mino- ri:y ofKings,rec!vOning the lame under the yeares of 24. might be annulled and revoked by their let- ters Pitenrs when thev came to the lame yeares^buc tbisaftinthefirftof K. Ed. 6. whowasthen be- 14Ei.Dy.313. tweene the yeares of 1 0.8c i i.ca.i i. was repealed, and a new law furrogate in place thereof, where- ^•^*'"*^'^^ in a more rea((:)nable liberty was given : and wherein, though other hwcs are made revocable according to the provifion of the former law with fome new forme prefcribed, yet that very

Law of revocation j together with pardons, is

L z made

(70) made irrevocable and perpetual!, fo that there is a dired contrariety betweenc rhefe twolawes : for if the former ftands, which maketh all latter lawes during the minority of Kings revocable without exception of any law whatioever, then that verylawof rcpcale is concluded in the gene- rality, and fo it fclfe made revocable ; on the ©iher nde, that lavv making no doubt of rheab* foluterepeale of the firftlaw, though it felfe were made durirjg the minority, which was the very cafe oft(je former law in the new provifion which it maketh, hath a precife exception, that the law of repeale fhallnotbe repealed.

But the law is, that the firft law by the imperti- nency of it was voyd ah initio c^ ipJof-Bo with- out repeale, as if a law were made, that no new ftatute fhould be made during (even yeares, and the fame ftatute be repealed within the fcven yeares, if the firft: ftatute (houfd be good, then the repeale could not be made thereof within that time ; fcrthelawofrepeale wereanewlaWjand that were difabled by theform^rlaw, therefore it is voyd in it felfe, and the rule holds, perpetua lex efi nuU-m Ifgiw humanam ac pofitivam perpetu^m ejfe^ ^claufuU q^utt ahrogationtm exdudff initio non valet.

Neither is the difference of the civill law (b realonable as colourable, for they diftinguifn and fay that a derogatory claufe is good to difa- ble any latter a(f^, except you revoke the fame claufe before you proceed to eftablifti any later dif- j^ofirion, or declaration ^ for they fay, xhdxclaufula

dcrogatoria

\ /

dcr9gatoria ad alias feq*4entes voluntates pofita in tesiamemo ( viz.fitesidtor dicat qd'fi centi^rrit eum facer e aliud tefiutnentum nen vuU iUud valere) eperatur qued fequtns di/pofuio ah ipfa claufula regu- letur, (j/per cenfequens quod fequens dif^ojitio dure-' fur fine vduntate (sf fie qaod nen fit attendenduw, ^ Thefenfc is, that where a former will is madejand after a later will, the rcafbn why without an ex- prefle revocation of the former will it is by impli- cation revoked, is beciufe of the repugnancie be- cwccne thedifpofition of the former and the later. But where there is fuch a derogatory claufe, there can be gathered no fbch repugnancy, be- caufe it fccmeth that the teftator had a purpofc at the making of the firft will to make fbmc fhewof a new will, which neverthelcfie his intention was (hould not take p'ace : but this was anfwercd be- fore ; for if chat claufe were allowed to be good untill a revocation, then would no revocation at all be made, therefore it muft needs be voyd by operation of law at firft. Thus mxxcho^ ClaufuU derogatoria,

JBus incefttu^ cu]us perfe&io pendet ex Vo- Rcgula 20. l»rttate fartium^revQcaripotefi; ^fiautem pendftex voluntate tertUper/oftd^velex contigenti^n9Hp$tefi^

IN afts that arc folly executed and confummate, the law makes this difference, that if the firft parties have put it in the power of a third perfon, orof acontigcncy, to give a perfc^ion to their

adtS)

ads, then they have put it out of their owne reach and liberty 5 therefore there is no reafbn they fhould revoke them : but if the confummation de- pend u, on the fame confent , which was the incep- tion, then the law accounteth it in vainc to rcftraine them from revoking of it^ for as they may fruftrare it by omiffion, and non fetfance^ at a certaine time or in a certaine lbrt,or circumftancc, io the law permitteth them to d'iffblve it by an ex- prelTe content, before that tirae^ or without that circumftance.

Therefore if two exchange land by deed, or without deed, and neither enter, they may make F.N.Br.jtf, a revocation or diflblution of the (ame exchange I3.H.7-13I4* by mutual! confent, (bit be by deed, but not by paroll, for as much as the making of an exchange needethno deed, becaufe it is to be pcrf fted by entry, which is a ceremony notorious in the na- ture of a livery -^ but it cannot bee diflblved but by deed, becaufe itdifchargeth that which is but title. F.5^.Elix. So if I contraft with 1. D. that if he lay me into

my feller three tunnes of wine before Mich, that I will bring into his Garner 20. quarters of wheat before Chriftmas, before cither of thefe daycs the parties tnay by aiTent dilTol ve the contrad -^ but after the firft day there isa perfeftion given to the contrad byad^ion on the one fide, and they may make crolTe releafcs by dctd or paroll, but never difTolve the concradr 5 for there is a difference be- tweene diflblving the contraft and rcleafe or Sur- render of the thing contrafted for : as if lefTee for ao. yearesmake a leafc for 10. yeares^ and after he

take

(73) take a Ic^fe for five ycares, yet this cannot inure by way offurrender : for a petty leafe derived out of a greater wnjiot be furrcndrc d backagaine, butinurechonely.by diflblution of contrad ^ for a leafe of land is but a contrad: executory from time to timeof the profits of the land, ro arife as a man may fell his come or his tythe tofpringor to be perceived for divers ftiiure yeares.

Burto returnt from our digreffionjOn the other- fide, if Iconcraft with you for cloth atfuch a price as I. S. (hall name • there if I. S. refufeto name, checontradt isvoyd, but the parties cannot difcharge it.becaufe they have put it in the power of the third perfon to perfcft.

So if Igrant my revcrfion, though this be an \'^J^'^- imperfed aft before atturnement, yet becaufctheF.atturnniet.g. atturnmenr is the adt of a ftranger, this is not (im- ply revokable, but by a policy or circaaj(Vance Inlaw, as by levying a fine, or mafcingabargaine and fale, or the like. -

Soifl prefent aClerketotheBi(hop, now can |i.Ed.j.F.Q. I not revoke this prefentation, becaule I have put ,^^j^J; it our of my felfe, that is the Bi(hop by admiifion 38.Ed.5*.jy. to perfed my ad begun.

The fame difference appearerh in nominati- M-Ed.4a.- onsand eledions •, as if I enfcoffe fuch a one as I. D. (hall name within a vearej and I. D. name L B. yet before the feo^cment and within the yeare I. D. may countermand his nomination and name againe, becaii(e no inttreftpalTeth out of him. ButiflenfeoifeL S. totheufeof&ch aone asl. D, fnali name within a yeare/ then if I. D.

M. name •

(74) name I. B. it is not revocable, becauft the nfe pafl fcth prefently by operation of law.

So in jndiciall ads the rale of the civill law holdcth^fententia inttrUcutoria revocari p$tefl . that is, that an order may be revoked, but a judgement cannot^ and the reafbnis, becaufe there is a title of e36ecution or barre given prefently unto the party upon judgement, and fo it is out of the judge to revoke in Courts ordered by the common law.

Regttla2i. ClattfuUyel dijpfijitio inutila fer frefumf- tionem rcmetam vel cauftm^ ex ^ofi fuBo noi$ fulcitur,

CLaufuU vtl di^ofitio inutiJk are (aid,when the aft or the words doe worke or exprefle no more than the law by intendment would have (up- plied 5 and therefore the doubling or iterating of that and no more, which the conceit of law doth in a fort prevent and preoccupate, is reputed nuga- tion, and is not fupporced and made of fubftance cither by a forreine intendment of (bme purpofe, in regard whereof it might be materiall, nor upon any caufe emerging afterwards , which may in- duce an operation of thofc idle words. 3».H.i.GooYd. And therefore if a man demile land at this day Vtt^' to his (bnne and heirc, this is a voyddeuife, be- Br.iefir«4t. caufc the difpofiiion of law did caft the (ame up- on the hcke by deicent, and yet if it be Knights

fervice

(7V ftrvicc land, and the heire within age, if hec take by the devife he (hall have two parts of the pro- fits tohisowne ufe, and the guardian (ball have benefit but of the third ; but if a man devife land to his two daughters, having no Tonnes, then the devife IS good, becaufe he doth alter thedifpofici* on of law, for by rhe law they (hall take in coper- i^.h.s, Dy.it. cenary, but by the devife they (hall take joyntly, and this is not any forreine collateral! purpofe, but in point of taking of cftate.

So if a man make a fcoifement in fee, to the ufe ofhislaft will and teftamcnt, thefe words of fpe- ciall limitation are voyd, and the lawreferveth the ancient u(e to the feoflbr and his heires : and yet if the words might (land, then might it bee tuthority by his Wi II to declare and appoint ufes, and then though it were Knights fervice land, hee might difpofe the whole. As if a man makeafe- offement in fee, to the u(e of the will and tefVa- mcnt of a ftrang- r, there the (Granger may declare an n(e t»f the whole by his wil, notwithftandingit be Knights fervice land.but thereafbn of the prin- cipall ca(e is, becaufe ufes before the fVatute ofay. H. 8, were to have becne di/pofed by will, and therefore betore that flarurean uie limited in the form, aforelaid, wis bat a frivolous limitation, in regard of the old ufe that the law referved was dc- vi&bie ; and the feature of 2 7. altererhnot the law, i^ hjjh, as to the creating and limiting of any ufe, and J'^'^ 4 *► therefore after thatftatute, and before the flatute of Wills, when n(j land could have becne devifcd,

M a yet

C7^) T

yet was it a voyd Kmiratioa as before, and Co con- tinuerh to rhis day,

Biicifl raakeafepffement ia fee, to the ufeof my lafl: willand teitament, thereby to declare an eftatc raile and no greater eftate ^ and after my death and after fuch eftate declared (hall expirej or in defauk of fiich declaration then to the u(e of I. S. and hUhfetres,ithisis a good limitation, IJ.H.8.H. and I may by my will declare an ufe of the whole *.Ea.4.8. Ij^^j pQa ftranger, though it beheld inKnighcs fc:rvice,andyet I have an efface in fee fimple by vertue of theold ufe during life. 3i.H.8.43.Dy. So if I make a feoffement in fee to the ufe of ray ao.H.8 s.Dy. yjgjjj heires, this is a voyd limitation, and the ufe 7. 12.137. y- jef^-rved by the law doth take place, and yet if the limitation (hould be good the heirefhould coma! in by way of purchafe, whootherwife comm,?th in bydefcent, but this is but a circumftailce wh^cfe the law refpedeth not, as was proved before. But if i make a feorfcment in fee to the u(e of 10.Ei.i74.Dy. niy right heires, and the right heires of I. S. this 15 a good u(e, becaufe I have altered the difpofition of law ., neither is it voyd for amoicy, but both our right heires when they come in being fhall 4.Ed.3.»9. take by joynt purchafe, and he to whom the firft Dtyi^^' falleth (hall take the whole fubjed, neverthelefle to his companions titles, (bithavenotdefcended I. i, from the firft/heire to the.heire of the heire ; for a ^ man cannot be joynt tenant claiming by pur-

chafe, and the other by defcent, becaufe they be feveralltitlcs.

So

(77) r* So if a man having land on the part of his Mo- ther make a feorfemem in fee roihc u(e of him- felfe and his heires, this tife though expreflTcdj (hi II not goe to him and the hcires of the part of his Father as anew purchafe, no more than h^-^l^^- fhould have done if it had beene a feofFeraent»n ^ ** ^^' fee nakedly wichouc confidcration,fbr the intend- ment is remote. But if baron and feme be^and they joynein a fine of the femes land, and exprcffean life to the husband and wife and their hcires : this limitation ftiall give a joynt eftate by intierries to them both, bccaufethe intendment of law would have conveyed the uCq to the feme alo^ie. And f.Ed.4.s. thus much touching for reine intendments. i^-as.i i.

3f;For matter expofifaBoy if a Icafe for life be made tocwOj and the furvivor of them, and they after makepanition : now the/e words (and the fur- vivor of them ) (hould (eeme to carry purpole as a.limitation, that either of them ihould be dated ofbis part for both their lives feveralJy 5 but yet the law at the firft conftrueth the words but joaffs Pier. words of dilating to defcribe a joynt eftate ^ and P^"-^^* if one of them dye after partition there (hall be no yy{,%.^6. occupant, but his part (ball revert. p-z-o.

So if a man grant a rent charge out of 10. a- cres, and grant further that the whole rent (hall iffue out, of every aae, anddiftreiTe accordingly, and afterwards the grantee purchale an acre : now thisclaufe (hould feeme to be mareriall to uphold theTCflt 5 but yet neverthele(re the law at firft ac- ccpreth oi thefe words but as words of explana-

i2:ik y^Mi^ M 3 tion.

C70 tion, and then notwithftanding the whole rent is extiQ^. So if a gift iataile be made upon condition, that 4.E^.Com. 53. if tenant intailedye without iffueit (hall be law- Vj-ti^si^ fall for the donor to enter and thedonce discon- tinue and dye wichourifTue ; now this condition fhould fecme materiall to give him benefit of en- try, but becaufeitdidatthe firft limit the eftate according to the limitation of law, it worketh no- thing upon this matter emergent afterward. So if a gift in taile be made of lands held in txMfUu Knights (crvice with an expreflc rcfcrvation of the (ame fervice, whereby the land is held over, and the gift is with warranty, and the land is evifted, and other land recovered in value againft the donor held in foccagc, now the tenure which the law makes bctwcene the donor and do- nee (hall be in foccage, and not in Knights fervice, becaufe the fir(^ rc(crvation was according to the owelty of fervice, which was no more than the law would have refcrved.

But if a gift intaile had becnc made of lands held in foccage with a rcfcrvadon of Knights fer-» vice tenure, and with warranty, then becaufe the intendment of law is altered., the new land (hall be held by the fame fervice the laft land wa$p without any regard at all to the tenure paramomtt^ and thus much of matter ex p§fips&o.

This Rule faileth where that the law filth as much as the party, but upoa forrcine miaer ^t pregnant and appearing upon the lame ati, and

<0Bveyance,

^79) conveyance, as if leflce for life be, and he lets for 20. fcarcs, if he live (b long 5 this limitation (if he live felong) is no more than the law faith, bat it doth not appeare upon the fame conveyance orad, that this limitation is nugatory, but it i% fbrreinc matter in refpeft of the truth of the ftate whence the Icafe is derived : and therefore if lef. fceforliferaakea feoffement in fee, yet the ftate of the icafe fbryearesis not enlarged againft the itH.j*. feotfee, otherwife had itbeene iffiich limitation ^^^pf^^% hadnotbeene butthatithadbeene left onelyto Ficz.pi^8. the law.

So if tenant after poflibility make a leafe for yeares, and the donor confirraes to the lelTee to hold without impeachment of wafte during the life of tenant in taile, this is no more than the law faith, but the privilege of tenant after poflibi- lity is forrcinc matter, as to the le.^fe and confirma- tion : and therefore if ten:int after poflibility doe farrender, yet the leffee (hall hold difpunifhablc of wafle ^ othervvife had ic beene if no fuch con- firmation at all had beene made.

Alfb heed muft be given that it be indeed the fame thing which the law intendeth, and which the party exprefTeth, andnotlike orrcfembling, and fuch asjaiav ftand both together : for if I let land for life rendring a rent, and by my d^td war- rant the fame land, this warranty in law and war- jogdj.Ktir. rancy in deed are not the fame thing, but may both 2i.Ed.i.zouth. fland together. *^^-

There icmaincth yet a great queftion on this rule. A

(8o)

A principallreaibn whereupon this rule isbuilt^ .fliould feeme tobebecaufefiachaf^sordaufesare thought to bee but declaratory and added upon Ignorance SLndex cenfuetudine clcricorufff uponoh' Cerving of a common forme, and not upon pur- pofe or meaningj and therefore whether by parti-^ cular and precife words a man may not con- troule the intendment of the Jaw.

To this I anfwer, that no precife or exprefie words will controule this intendment of law ^ but as the generall words arevoyd, becaufe they fay contrary to that the law faith ; (6 are they which are thought to be againft the law : and therefore if I demife my land being Knights fer- vice tenure to my heire, and exprelTe my inten- tion tobe,that the one partfhoolddefcendto him as the third appointed by ftatute, and the other he Ihill take by devife to his owne ufe, yet this is voyd 5 for the law faith hee is inbydilcentofthe whole, and I fay, he (hall be in by devife, which? is-againftthc Law. Tjf,,i 3^,, But if I make a gift intaile, and fay upon condi-

lionj that if tenant intaile difcontinue and after dye without iilue it fhall be lawful! for me to en- ter V this is a goad claufe to make a condicion, be- caufe it is but in one cafe, and doth notcrofic the lavv generally : fbr if the tenant intaile in that cafe be difTeif d and a defcent cafl> and dye with- out ilTue, I that am the donor fhall not enter.

But if the claufe had beene provided, that if tenant intaile difcontinue, or fufo a defcent, or

6bc

(8i) <Jocany other fad wharfocver, rhatafter his death without illue it (hall be lawfull for mee to enter : row this is a voyd condition, for it importeth a re- pugnancy to law : as it I would over-rule that where the law faith I am put to rayadtion, Ine- verthelefle will referve to my felfs an entry.

^071 videtur confenfum retinuijfe Jiquu ex Regula2ir prefer fpt^ minanttf aliquid mmutavh^

Although choice and eled^ion be a badge of confent, yccifthe firfl: ground of the aft be durelTe, the lav/ will not conltrue that the durcffe doth determine, if the party durefled doe make any motion or orfer.

Therefore if a party menace me, except I make unto him a bond of 40, 1. and I tell him that I will fiotdoe it^ but I will make unto him a bond of 20.1. the law (hall not expound this bond to be vo- luntary, but (liall rather make conftruftion that my m'nde and courage is not to enter into the greater bond for any menace, andyetthat fencer by compulfion, notwithflanding, intothelefler.

But if 1 will draw any confideration to my felfe, as if I had fald, I will enter into your bond of 40. 1. if you will deliver me that peece of Plate, now the durefTe is dilcharged, and yet if it had beene moved from the duredbr, who hadfaidat the fir ft, you (hall take this peece of Plate, and make me a bond of 40. 1. now the gift of the Plate

N had

(80

had beene good,and yet the bond Iballbe avoyded bydurefle,

Regula 2->. y^mhiguita^ verhorum Latens iperificatione ftij)pletur^ nam quod ex fuBe oritur amhiguum verifcamnefaBi teilitur.

THere be two forts ofambignities of words, the on^h A mhignitM Vatens^ and the other Latens, Patens is thac which appeares to be am- biguous upon the deed or inftmment, Lnens i$ that which feemcth cerraine and wirhour ambi- guity, for any thing that appearcrh upon the deed' or inflrument ; but there is fome coll itcrall mattcf out of the decd^ that breedcth the am Mguity.

jimhiguitas Patens is never hoi pen by averre- menc, and the reafon is, bccaufe the law wit! not couple and mingle iRatttr of fpecialty, which is of the higher account, wirh matter of averrement, which is of inferiour account in law ., for that were to make all deeds hollow, and fubjedt ro avcrre- ments, and fo in eifcd, that to palfe without dttd^ which the law appjintcth (hall not pafle but by deed.

Therefore if a man give land to /. D, &!, S. it h^ercdibpi.*^ and doe not limit to whether of their heires, it (hall not bee fupplied byaverrc- ment to whether of them, the intention was, the inheritance (hould be limited.

So if a man give land intaile, though it be by

wilL

(83)

Will, the remainder intaile, andaddc a Provifo, in thi^manner : Provided that ifhee or they or any ofthemdoeany &c. accordmg to the ufuallclau- fesofperpetuicies, it cannot be averred upon the ambigu'ties of the reference of this clanfe, th X the intent of the devifbr was, that thereftraint fnould goe onely to him in the remainder, and the iicires of his body 5 and thar the tenant intaile inpoffcffion, was meant to be at large.

OFthefe, infinite cafes might be put, forithol- deth generally that all ambiguirie of words by matter within the deed, and not out of the deed, Hiall be hoipen by conftruftion, or m ibme cafe by eleftbn,but never by averrement, but rather fhall make the deed voyd for uncertainty.

But if it be Ambiguitat lattns^ then otherwife it is : as if I grant my mannour of S. to I. F. and his hcires, here appeareth no ambiguity at all ^ but if the truth be that I have the mannours both of South S. and North S. this ambiguity is matter in fata-, and therefore it fhall hoipen by averre- ment, whether of them was that the party inten- ded fhould pafle.

So if I fet forth mv land by quantity, then it fhall be fupplied by eledio^^ and not averm'^nr.

As if I grant ten acres of wood in fale, where I have an hundred acres,whether I fay it in my deed or no that I grant out of my hundred acres, yet here fhall be an eledion in the grantee, which ten hee will take.

And the reafon is piaine, fortheprefumption

N 2 of

' (84) of the law is, where the thbg is onely nominated

by quantity, that the parties had indifferent in- tentions, which (hould be taken, and diere being no caufe to hclpe the uncertainty by intention, it ftiallbe holpen by election..

But in the former cafe the difference holdeth,. where it is exprefTed and whrre not • for if I re- cite. Whereas I. am feifed of the mannour of North S. and Souths. I lezQuntoyou mum ma- fieriumdes. thereit isckarely an eJcflion : fb if I recite. Where I have two tenements in St. Dun' flans^ l\€2i(euntoyou unum tenement u/jiy there ic is an eledion, not averment of intention, except the intent were of an eledion, which may be fpe- cially averred.

Another fort of yf»2^/^«//^ latent is correlative unto thefc ; for this ambiguity (poken of before, IS when one name and appellation doth denomi- nate divers things, and the fecond^when the fame thing is called by divers names..

As if I give lands to Chrift.Church in Oxford, and the name of the Corporation \s Ecclefia chriji in Vniver^tate Oxfsrd, this fhall bebolpen by aver- ment, becaufc there appeares no amWguity in the words ; for this variance is matter in faft, but the- averment (haU not be of intention, becaufe it doth (land with the words.

For in the cafe of equivocation the generall. intentjncludes both. the fpeciall, and therefore fVands with the words : but fb it is not in vari- aiiee, and therefore the averment muft be of

matter.

(85) raattefjthat do endure quantityjand not intention. As CO (ay of the precinft of Oxford, and of the univerfity of Oxford isoneand the (ame, and not to fay that the intention of the parties was, that the grant fhould he to Chrift-Church, in that Univerfity of Oxford.

Lzcita bene mifcentur ^ fermuU nifi juris Regula 24, objia,

THe law giveth that favour to> kwfull a^s, that although they be executed by feverall authorities, yet the whole aft is good.

As when tenant for life is the remainder in fee, and they joync in a livery by deed or without, this- is one good entire livery drawne from them both, and doth not inure to a (urrender of the particular eftatc if it be without deed or confirmation ofscmbicdecre- thofe in therematnder, if it be by deed, buVthcy «^cnt^eiey

... L !• d'eftre contra-

are afi parties to the livery. rymambidcux

eafes, car lou eft fans fait eft livery fokmentdecertui inlercm' &fu'rr'dc panic - ten* aucerment fer-- ra forfeiture dc Ton cftate, & lou eft per fait le livery pafla folement dc renaat, car il- adlefranktenement, videaccordanr. Snr.Co.lib, 1.76. b.77. a. Com, Plow. Sf.A.'^o, ».H.5.7.i3-H,7i4.ij £4.4.1 27.H 8.13.M.16 & i7.ELDy.339.,.

So if tenant for life the remainder in fee be,and they joynein granting a rent, this is one (olid rent outof-both their ef^ates^ and no double rent, or- rent by confirmation.

So if tenant intaile be at this day, and he make aleafe for three lives, and his ownCj this is argood '

N 3 ' leaf^y ,

Quxre. lealc and warranted by the ftatute of 5 2. H. 8. and yet it is good in part by the authority which te- nant intaiie hath by the common law, that is, for his owne life, and in part by the authority which hehathby theftature, that is, for the other three lives.

So if a man feifed of lands devi(eable by cu- ftome, and of other hnd held in Knights fervice, anddcvife all his lands, this is a good devileof all the land cuftomary by the common law, and of two parts ofthe other land by the ftatntes.

So in the Starchamber a fentence may be good, grounded in part upon the authority given the Court by the ftatute of 5. H.7. and in pare upon that ancient authority which the Court hath by the common law, and (b upon (everallcommifli- ons.

But iftherc be any forme which lawappointeth to be obferved, which cannot agree with thedi- -verfiti?^ of authorities, then this rule failcth.

As if three Coparceners be, and one of them

alien her purparty ,the feoffee and one ofthe lifters

Vide i.inftit. cannot joy ne in a writ de pan facienda^ becaufe it

i44h. bchooveththe feoffee to mention the ftatute in

his writ.

Regula25. Prafentia corporis toUtt errorem Nominis^ (V Veritas Jtsmmis toffit errtrem Demon ^ratmis.

THere be three degrees of certainty. I Prefence,

2 Name.

(87)

% Name.

3 Demonftration or Reference.

Whereof the PrerencetheJaw holdeth of^rea- teft dignity, the Name in the Qcond degree, and the Demonftrationor Reference in the loweft,and alwayes theerrour orfalfityin the leflfe worthy.

And therefore if I give ahorfe ro L D. being prefent, and fjy unto him, I. S. take this, this is a good giftjnotwithftanding I call him by a wrong name • but fo had it not been c if I had delivered him to a fkangtr to the ufc of I. S. where I meant I. D.

So if I fay unto LS. here I give you my ring with the Ruby, and deliver it with my hand, and the Ring beare a Diamond and no Ruby, this is agood gift not withftanding Iname it amifle. - So had it beene if by word or writing with- .but the delivery of the thing it felfe, I had given the Ring with the Ruby, although I had no fnch, but only one with a Diamond which I meant, yet it would have pafTed.

So if I by deed grant unto you by gener^Il . words, allthe lands that the Kingharh pyfled un- to me by letters parents dated lo. May unto this prefent Indenture annexed, and the Parent an- nexed have date lo. July, yet if icb.' proved that that was the true Patent annexed, the preferceof the Patent maketh the error of the da'efecired not mareriall ; vet if no Patent had been annexed, and there had beene alio no other cerrainry given, but the reference of the Patent, the date whereof

was

I (88)

was mif-reciced, although I had no other Parent

ever of the King, yet nothing would have padcd.

Like lawis^lt, but moredoubcfull, where there

is not a prelence, but a kind of reprefentarion,

whiCh IS leflc worthy than a pretence, and yet

more worthy than a Name or Reference.

As if 1 covenant with my Ward, that I will ten- der unto him no other marriage, than the gentle- woman, whofe pidure I delivered him, andthat pidure hath about it ty£tawfujt anno, 1 6, and the .gentlewoman is (eventeene yeares old^ yet ntver- thelefle if it can be proved that the pi(^ure was made for that gentlewoman, I may notwithltan- ding this miftaking, tender her well enough.

So if I grant you for life a way over my land ac- cording to a plot intended betweene us, and after I grant unto you and your heires a way according to the firft plot intended, whereof a table is an- nexed to thefe prefents, and there befomefpcci- all variance betweene the table and the original! plot, yet this reprelcntation (hall be certainty (iif- ficienc to lead unto the firft plot, and you (hall have the way in fee never theleflfe, according to the firft 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, $luarum tenor fequitur in h^c verba^ (Jrf. and there be fbme miftaking in the recitalland va- riance from the original! patent, although it be in ft point materiall, yet the reprefentatlon of this whole Patent Qiallbe as the annexing of the true

Patent,

[( 8^ ) patent, and the grant (hall not be void by this va- riance.

Now for the fccond paft of this rale touching the Name and the Reference, for the explaining thereof^ it muft be noted what things found in demonftration or addition ; a?firftin lands, the greateft certainty is, where thelandhathaname proper^ as the mannor of Dale, Grandfield, &g. the next is equdl to that, when the land is fet forth by bounds and abuttals, as a clofe of pafture bounding on the Eafl: part upon Emfden-wood, on the South upon, &c. It is alfb a fufficient name to lay the generall boundary, that is, (bme place of larger precinft, if there be no other land to pafle in the fame precind, as all my lands in Dale, my tenement in S. Dunftans Parifli, &c.

A farther fort of denomination is to name laud by- the attcndancy they have to other lands more notorious, a^ parcell of my manour of D, belonging to fuch a CoUcdge lying upon Thames banke.

All thefe things are notes found in dcnomrn*- tibn of lands, because they be figncstocall, and therefore of property to fignifie and name a place J bat thcfc notes that found only in demon- ftration and addition, are (uch a^ are but tranficory and accidenrall to the nature of the place.

As fnedfi in tenura & occupathnc^ of the pro- prietory tenure or pofleflbr is bur a thing tranfito- ry in vtCptSt of land •, Generatio venir^ pnersm miff at i terra auftm manet in ^ternuj»,

--■ a Sot)

-So like wife matter o£ ccmveyance, title, or la-

flrument. -vr- -t

;- As, ^ua per^tiifivi ie J. D^ que defcendehant a /• N. patre tneo^ot^ wpr^diBa Indent t*ra diwi/fh' njs^ Ofa inp'TaiiBu Utefis patent'ihm ^ectficat ,

So iikcwiife commm' per dflimiimnem 2 o . acrof^ or if( per tefiimamnttn) be left out, all is one, for it is iinderftood, and this matter of meafure, al- though it feeme local!, yet it is indeed but opinion andobfervarionofmen. l^ ;r:u' r f- 7 .;

The diftindion being made, the rule is l^rfe^l examined by it. \- .

Therefore if I grant my cloie called Dale in the Panfh of Hurft, in the County of South-, hampton, and the Parilh likewi(e extendeth inrq. the County ofBarkftiire, and the whole qlofe of Dale lycth in the County of Barkftiirie^, yet be- caufe the parcell is efpecially named^ the. fa}(rcy of' the addition hurteth not, and yet this additioi? is found in name, but (as it vvis (aid) it wa^leifej worthy than a proper name. -1!

So if I grant teHementum meurn^ or omma tC' newenta mea (for the univerfall and indefinite to this purpole arc all one) inparochia SanBi Butolphi * scmbicicylc ^^^1^^ Mgaf efwhefc the verity is extra Bifh»pjgate) grant uft cfte intenufu GttUielmi, which is true, yet this grant is fuklcCoiu ptrVoyd, becaufe that which founds in denomination cur',Co lib 3. is falfe, which is the more worthy , and that which t'i^r^'''^^^^' bounds in addition is true, which is the leffe ^ * and iiMl'^.i9z, though in tenura Guilielmi^whkk is true,had bcene b.&co.iib.2. firflphiced, yet it had been e all one. 'fo5i«- But

C9i) But if I grant teaementum tneam qut^ perqui- vidcib.qu*

I have no other tenements in U. but one, this ic primer cci. grant is good, becaufc that which foundecb m "inty eft faux. name ( w. in Dale) is true, and that which foun- ded in addition {vlz^ quodpcrquifivi^ &c, ) is ©nely falfe.

So if I grant 7'r^f j^«eJ in Sale cominentla lo acroiy and they containe indeed 20. acres, the whole a o. pafle.

So if I grant all my lands, being parcels ma^ ntrii deD, in prddjBif Uteris p^tentibus jj)ecificat\ and there be no letters patents, yet thegriantis good enough.

The likereafon holds indemonftrations ofper- fbns that have beene declared in demonftratton of lands and places, the proper name of everyone IS in certainty worthicft, next are fuch appella- tions as are fixed to hisperfbn, or at leaft of con- tinuance, as fonneof fuch a man, wifeoffucha hu$band 5 or addition oi office, as Cierke of fuch a Court, &c. and the third are a(3:ions or accidents, which found no way in appellation orname, but onely in cireumftance^ which are kfieworrhyj al. though they may have a po6re par ticaUr refe- rence to the intention of th^ grant.

And therefore if an obligation be made ro I. S. f^io ^ hjcrediG. S* where indeed he is a baft-ard^. yet this obligation is good. -^

So if I gfafit land Epifapo nmc Londhenfi gift me erudivit In pueritia , this is a good grant,

O 2 although

(12)

althiugh he never inftruded me.

But 9 cffaverfrj if I grant land to I. S. fiiu (^ hdredi G, S, and it be tme that hee is (bnne and heire unta G. S, but his name is Thomas, thia is a voyd grant.

Or if in the former grant it was theBifliop of Canrerbary who taught me in my childhood, yet ihall it be good (as was (aid) to the Bifhopof London, and not to the Biihop of Canterbury.

The fame rule holdeth of denomination of times, which are fuch a day of t he Moneth , iuch a day of the weeke, foch a Saints day or Have, To day, CO morrow • thefe are names of times.

But the day that I was borne, the day that I was married ^ thefe are but circumftances and ad- dition of times.

And thereforeif I bind myfelfe to doe fbme perfonall attendance upon you, upon Innocents day being the day of your birth, and you were noc borne that day , yet (hall I attend.

There re(teth two quefiions of difficulty, yet upon this rule ; fir(t, of Iuch things whereof men t^e not (b much note as that they (hall feile of this diftindionofname and addition.

As, my box of Ivory lying in my ftudyiealed up with my (ealeof armcs, my fuic of Arras with the ftory of the Nativity and Paffion ^ of fuch things there can be no name, bur all isofd^fcripti- on, andof circum(i:ance, and ofthe(e I hold the law to be, that preci(e truth of all recited circum- ftances is not required.

But

(P3)

But HI fnchthiflgs €^4 multhuiine ftijierttm coUi- ptur idcttfitM'vera^ therefore though ray box were fealed, and although the arras had the ftory of the nativity, and not of the paffion, iff had no other box, norno other fuit, the gifts are good, and there is certainty (ufficient, for the law dorh not expetlraprecire de(cription of fuch things as have no cet tain^* denotnination.

Secondly, of fuch things as doe admit the di- (linftion of name and addition, but the notes fall out to be of equall dignity all of name or addi- tion.

ASyprjta mea )uxU C9mmttnemfijfim in D. where- of the one is true, the other faire,or, tcnementum meumf» renufJ G^ilielmi quodperqusjivideK, C, in pr^diB' Indent Iptcifieat" whereof one is true and two are falfe, or two are true and one falfe.

So ad curiam quam tenebat die Mercurii tertie die Mart it, whereofthe one is true jthe other fal(e. .

In the(e cafes the former rule ex multitudint fiinerum, (yc, holdeth not, neither is the placing of the filfitie or Verity fir ft or lafl maceriall, but allmuftbetrue, orefe the grant is void, alwayes videiiyersa. underftood, that if you can reconcile all the vantdicpur words, and makenofalfity, that is quite out of ^^ this rule, which hath place onely where there is adiredt contrariety, orfalfitynot to be reconci- led to this rule.

As if I grant ati my land in D. intenur.rl. S, which I purchafed of I. N. fpecified in a devife to L D, and I hcive land in D. whereof in part of

O 3 them

^5?,

Cm)

them all thefe circumft^ces are true, butlluve oth^r lands in D. wherein forae of them failcj this grant will not pafie all my land in D. for there thefe are references, and no wordsof falfity or er^ ror, but of limitation and reftraint^

^r;it)ri-.- FI^IS,(^

I\nr

-•V4U-.

THE VSE

O F

THE LAW-

Provided for Prefer vation

OF.

OwxlQoods^znd \(^ood 3\(ames.

According to the Pradice O F rLawes Jhe}^ and ^ of this Land. fCuflomes

By theLordVerulam VifcountofS. Athens Uc

LONDON,

Printed by the Afligncs of 1 0 H N Moore Efquire. 1^35.

€»m Frhileiio,

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'^oZiiiio:^^. J :\n:.j: . / li^

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§'

Jd:

JIPV "JTH.^ >/WTV_

A Table of the Contents of

this enfuins Treatifc,

Folio* iHat the Vfe of the Law principal/y cdnfijleth in^

FqL I * Surety to keepe the Feace^ fol, ihid,

ABien of the cafe^for Slandar^ Battery^ ^c, foL I jippe^kofMuriLr^ivento the next of kinne^ fil, 2 {J^anjlau^nery and when a fgrfeiture of goods, and whenmr^ fol, 2

peh defe^ Felony hy mifchance^ Deodand, foU ibid. Cutting out of tongues, andputtingsut ofEJefy made felony. f$L 3

Theof^ceoftheComjiable, fol. ibid,

Twohi^hConftablesfor every Hundred^ and one petty Confiable for every Vilii:igey foL 4

The Kings- Bench firft infiiputed^ and in what matters they anciently had lurifdiBon^ fol, 5

'the Ceurt of M:ir\haifeyereBed^ and its lurifdiBion within 12. miki of the chi(fe TunnetleftheEing^' which is the full extent of the rerge^ f&Libid,

Shcrijfts Tourne injiitutedupon the divifion of England into Counties :th€ charge ofihis Court vpas committed to the Earle ofthefmie County^ fol, 6

Subdivif\on of the County Courts into Hundreds^

foL fbid, P The

THE TABLE.

The charg^^ efthe Comty taken ftom the Earles^ and C'hmmittcii yearely to fuch per fans as it plea fed the

7he Shtrijfe is I ud^e of al/ Hundred Court met given

away from the Crowne, foL tbid.

County Counts keptmenthly by the Sherijfe^ foL ibid. The office of the sheri'ffe^ foLibid,

Huid^ed Courts to whemjirji granted j foL 8

Urdefthe Hundred to appoint tW9 High Conftables^

fol. ibid. Of what matters they enquire of in Leets and Law

dayes^ foUbid,

Canfervators of the Peace ^ and what their o^ce vaSy

f»L$

Cenfervators of the Peace by vert ue of their Ofjice^oL i o

Juftices of Peace ordained in lieu of Confervator/.

■ Of jf lacing and dt^lacing of lu^icesof Peaeehjuft

deligatedfrom the King to the Chancellor, fol. ibid. The power of the lufiice of Peace to fine the offenders

totheCrowne^ and not to recontpence the party grie--

vedy fol. ibid.

Authority of the luflices of Peace ^ through whom run

all the County fervices to the Crovsne^ fol, ii

Beating, kilitng^ burningofHoufes, fol. ibid,

uittachmentifor furety of the Peace, fol, ibid.

Recognizance of the Peace delivered by the Jufiicesat

their Seffions^ fol. ibid.

guarterSeffionsheldbythe lufl. of Peace, fol, ibid. The authority ofJuftices of the Peace out of their Stp-

ons, fol, I 2

Judges of jifize came in place of the ancient Judges in

THE. 1 /i b L E.

Eyn^ about the time ofR, i , fil. i ^

England divided into [i:>^ Circuits^ ard tvpo leamtd meninthe Lawci aligned by the Kings CQmmijnan terxde twice ayeare through thfeShireSy allotted to that circuit for the tryall of private titles to Lands and goods^ and all Treafom and Felonies^ which the County Courts meddle not in^ foL 14

The Authority of the ludgesixt Eyre tranjlatedby Par- Uament to lujtices ef ^fiz>e^ fd, ibid.

The authority ofthelujlices of Jjfizts much Itjjfencd by the Court of Common Pleas ^ ereBed in H. 3. time, fd. ibid.

The lujlices of JjTize have at this day five Com^ mifiions by nhich iheyfit^viz,!' Oyer andTer^ninery 2Go^k Delivery^ 3. To take ^fizes, 4. To take Nifi Prius, 5 . Of the Peace^ foL ibid,

Booke avowed to clergie for thefcarcity of them to be dijj^ofed in Religious houfeSy fol. 1 7

Thecourfethe Judges hold in their circuits in the- Exe- cution of their Commifion concerning the takingof Nifi Prius, fol. 20

fhelufiicesofthe Peace and the sheriffs are to attends the Judges in their County^ foL 21

Of Propertie tf Lands to-be gained by Entry ^ foL 2 j ^

Land left by the Sea belongetb to the King^_ fol. ibid, roperty of Lands by Difcem, foL 2 5 '

Three rules of Difient^ fol. 2^

Cujiemes of certaine places- foL tj^

Every Heir e having Land is bound by the binding ABs ofhU Ancefiors^ if he-be named^ fol, ib.

Property of LandkbyJEfcl:>Gflt^ fol, 29

P 2 J 4

THE TABLE.

In Efchent twe thinj^s are tibe ohfervei^ fit* 3 0

C9 ncerning the tenure ofL andi, fiL ibid.

The refervatiins in Knights fervtce tenure^ arefoure,

fol, ib.

Homage J and Fealty y fsL |o

Knights firvice in Ca^ite, ii a tenure de perfbna

Regis, ^ M35

Grand fer'jeanty,^ Vetty/er'jtanty^ filjbid.

The Infiitutim of soccage in Capte^ and that it is

now turned into monyes rems, fol. ibid,

Ancient Demeafne^ vphat^ fol, 3 4

O^ce of Alienation^ fd, 34

How Manners were atfirfi created, fel, 3 5

Knights fervice Tenure referved to common perfons^

foL ibid. Soccage Tenure referved by the Lord^ fol. 5 6

ViUengge or Tenure by Ceppie of Court KoU^ foL 3 7 Court Baron, mth the ufe of it, fel. ibid,

what Attainders fhali give the Bfcheat to the Lord,

/b/.38

Trayerofclergie^ fol. ^9

Hee thatjlandeth mute forftiteth no Lands, except for

Treafon^ fol.ibid.

He that \iUefh himfelfe ferfeiteth but his Chattels^

foLib. Flyingfor Felony , a forfeiture of goods. fol, ibid.

Lunds emayledyEfcheatto the King fer Treafon^fol. 40 A perfon Attainted may pm chafe, but it fhaU be to the Kings ufe, foL^i

Property of Lands by Conveyance is^ firfi difiributedimo Efiates, for Teares^for iif^. In tajle^and Fee^Jimple .

M43 Leafe

THE TABLE.

Leafe for year es g9t to the Executors and not to the

Heyres^ foL ibid,

Leafej, by what mfanes they are forfeitable J foL 44.

what Livery ofSeiJin is^ and how it if requifite to every

ejlate for life ^ fol, ib.

Of the new Device caffed a Per^etuity^ which ifanEn"

tayk with an addition^ fol, 47

The inconveniences ofthefe Perpetuities ^ fol, 48

TheUfl and^reatefi efiate in land is Fee-fimple^ fol, 4^

The difference betwcene a Remainder And a Reverfion^

fd,ib,

U4jat a Fineu^ fol, 5 I

Whjt Recoveries are^ fol, 51

fVhataVfeif^ fol.^^

A cenvcywcetoflandfeifedtoaVfe^ fol, 5 5

O f the continuance of Lmd by WiU^ fol, 5^

Property in Coeds, i. By Gift 3 2, BySale^ 3 . By Stea*

ling^^,BjfFyving, 5. By Straying^ 6, By ship-

wrack ^ 7. By Fo>ftiturej 8. By Executorjhipjol, 61

By Letters bfAdmini^ration^ fol, 6 8

inhere the Inteflate had Bona notabilia in divers

Diocejfefy then the Archbifhop of that Province

where hee dyed is to commit Admimfiration^ fol. ibid.

At Executor may refufe the Executorfhip before the

Bijhop^ if he have not inter medled with the Goods^

fol, 69

jin Executor oufrht to pay, 1. ludgements^ 2, Stat,

Recogn • 3 . Deb ts by Bonds and Biksfealed^ 4. Rent

unpayed, 5. Servants wages ^6, Head-workmen^ 7

Shop'booke^ and ContraBs by wordy fol, 6p

Debts due in equals degree of Record, the Executor may

i P 3 pay

THE TABLE,

f^^ which fifthem heepleafe before fm be commenced^

But it if otberwife with Adminifiratoriy fal, 70

Property by Le facie, foL 71

Legacies are to te payed before debts by Shop'b^oh^Bih

unfealed^ or ContraSs by wordy foL ibid,

An Executor way pay which Legacie hee willfirfl. Or if

the Executors doe wMt^ they may fell any Legacie to

pay Debt s^ fol yi

when aWiUil made and no Executor named, Admi-

nifiration is to bo cfimmited Cum teftamenco

anaexo. foUbido

THE

^4

THE

VSEOFTHE

LAW, ^yfnd wherein it principally

cenjijieth,

^^J^^HE life of the Law confifteth prin- ^ ffi cipally in thcfe three things :

(" I To iecure Mens perfons from Death and Violence.

2 To diff ofe the property of their Goods and Lands.

3 For prefervation of their good Namei fi-om ftiame and infamy.

FOr Qfety ofperfbns, the Law provideth that surety tokcepe any man (landing in feare of another, may the Peace. take his Oath before a Juftice of Peace, thathee ftandeth in feare of his life, and the Tnfticc(Lall compcll the other to be bound with Sureties to keepe the Peace.

If any man Beat, wound or maime another, or a^^;"^^^^^^^ give falfe fcandalous words that may touch his der,Battery, Credit, the Law glveth thereupon an aa:ionof &c. M^ the

(O

the Ca(e, for theflander of his good name • and an Aftion of Battery, or an appcale of Maime, by which recompence (hall be recovered, to the va- lue of the hurt, dammageor danger. Appcnicof If any man kill another with malice, the Law

Murthcr given givcth an appcalc to the wife of the dead, ifhee

default of a Wife, by which appealc the Defen- dant convicted is tofiifFer Death, and talofcall his Lands and Goods ^ But if the Wife or Heire will not fue or be compounded withall, yet the King is to punifh the offence by Indiftment or Prefenrment of a lawfull inquelt and tryall of the Offenders before competent Judges ^ whereupon being found guilty, he is to fuifer Death, and to lofe his lands and goods. Man-flaughter, If One kill another upon a fuddaine quarrel I, this and when a is Man-fliughter, for which the Offender muft

forfeiture o» j ^S . • ./->i

Goods^and "X^? cxcept hc cau read ^ and ifhe can read, yet when nor. muft h e lofe his goods, but no lands.

Andifamau kiilanother in his owne defence, he (hall not lofe his Life, nor his Lands, but he mnfl lofe his Goods, except the party fiainc did firft allault him, to kill, rob, or trouble him by the High-way fide, or inhis owne Houfe, and then he (hall lofe nothing. Felon, de fc. And if a man kill himfelfe, all his Goods and Chattels are forfeited, but no Lands.

Th^ce ^^ ^'^' ^^^ ^^^ ^'^^ another by misfortune, as fhooting an Arrow at a Butt or Marke, or calling a Stone over an houfe, or the like, this is IdFe of his goods

and

(3)

and Chattels, but not of his lands, nor life.

If a Horft, or Cart, or a Bealt, or any other Dcodand. thing doe kill a man, the Horfe, Bcaft or other thing is forfeited to the Crowne, and is called a Dtodand^ and ufually granted and allowed by the King to the Bifnop Almner, as goods are of thofe tharkillthcmfelves.

The Cutting out of a mans Tongue, or putting cutting out of out his Eyes malicioufly, is Felony ^ for which the Tongues and offender is to (uffer Death, and lofe his lands and Ey"«"iadc**^

goods. Felony.

But for that all funijhment is for Examples fak^e • it u good to fee the meanes whereby Offenders are drawneto their punijhment '^ and firflfor matter of the peace .

THe ancient Lawes of England planted here bytheConquerour,were, that there fhould be Officers of two fbrrs in all the parts of this Realme to preferve the Peace :

I. CondahuUrii 7

2. Confervateres

}'•

"The Office of the Conftable was,toarreft the par- The office of ties that he had feene breaking the Peace, or in fii- '^' Conftabic, ry ready to breakcthe peace, or was truly infor- med by others, or by their owne confeffion,

Q, that

(4J . that they had freihly broken the peace ^ which per- fons he might imprifbn in the Stocks, or in his owne hpufe, as his or their qoality required, untill they had become bounden with lurcties to keepe the peace ^ which obligation from thenceforth, was CO be lealed and delivered to the Conftablc to the ufe of the King. And that the Conftable was CO fend to the Kings E^xch^qaer or Chancery, from whence Procefie Should be awarded to levy the debt, if the peace were broken.

But the Conftable conid not arj-eft any, nor make any put in Bond upon complaint of threat- ning onely, except they had feene chem breaking the peace, or had come frefhly after the peace was broken. Alfojthefe Conftables fhould keepe watch about the Towne for the apprehcnfion of Rogues and Vagabonds, and Night-walkers, and Evef^i droppers. Scouts, and fiich like, and fuch asgoe Armed. And they ought likewifc to raife hue and cryagainftMurtherers, Manflayers, Thee ves and Rogues.

». High Con. Firft,H!gh Of this OfEcc of Conftablc there ^^:itr^ttny v-ere High ConftaWes, two of every Coivftabiei. Hundred ; Petty Conftables one in liPetiyCon- cvery Village, they were in ancient timeall ap- TYdhV""' P^^^f'^clbytheShcrifeofthe Shire yearely in his *^ ^ ^^' Court called the Sheriffes Tourne, and there they received their oath. But at this day, they are ap- pointed either in the Law-day of that Precinct wherein they ferve, or clfe by the high Confiable ia the Seilions of the peac€.

The

(5)

The SherififesTourne is a Court very ancient, TheKing? incident to his Office. At the firft^ it was ercfted ^cnch firfi in, by the Conqucrour, and called the Kings-Bench, I^LTm^^Jerl'" appointing men ftudied in the Knowledge of the they anciently Lawesto execute juftice, as fubftirutes to him in i^a<ij"n^«i''^j- his name, which men are to be named, lufiiciarii adpLicifa cof.jm Rege aftgnati. One of them bemg Capiralis lufiiciarim called to his fellowes ^ the reft in number as pleafeth the King, of Jarc but three lupciarii^ hoiden by Patent. In this Court every man above twelve yeares of age, was to take his Oath of Allegeance to the King, if hee were bound, then his Lord toanlwcrfor him. In this Court the Conftables were appointed and (worne^ breakers of the peace punifhed by fine and imprifonment, the parties beaten or hurt re- compenced upon complaints of damages 5 All appeales of Murther, Maime, Robbery, decided 5 contempts againft the Crowne, publique annoy- ances againft the people, Ti^afons and Felonies, and all other matters of wrong, betwixt party and party, for Lands and goods.

But the King feeing the Realrae grow daily Gowtof Mw- more and more populous, and that this one Court aed!\ndhsru. could not difpitch all 5 didfirft ordaine that his rifdiaionwith. Marfhall (hould keepe a Court, for Controverfies JJ^^ J^J^'/*' °^ arifing within the virgc Which is within xii. miles Tunndi^the of the chiefcft Tunnell of the Court, which did King, which i$ buteafethe Kings Bench in matters onely concer- 'j'/^^^'l^"/g''^"' ningdebts, Covenants, and fuch like, of thofeof the Kings houlhold onely, never dealing in brea- ches of the PeacCj or concerning thcCrowneby

Qji any;

(O

any other pcrfons, or any pleas of Lands, info- much, as the King for furchereafe having divided this Kingdome into CountieSjand committing the Charge ofevery Gounde to a Lord or Earle ^ did dired, that thofe Eailes, within their limits sheiiftcs ihould iooke to the matter of the peace, and take Toumcinfti- charge of the Conftables, and reforme publike divifioaof annoyances.and hveare the people to the Crowne, Engiandinro and take pledges of the Freemen for their Allcge- SlrgeS^his ^^^^5 ^^^ which purpofe the County did once evc- Coartwas ry yeaie keepe a Court, called the Sheriffes committedco Xoume. At which all the County CexceptWo- fame councie : men, Ciergic, Children under 12. andnotaged thiswasiike- above 6o. ) did appeare to give or renew their 7i^^^T pledges for AlJegeatice. And the Court was called, pieg. Curia Franciplegii^ A view of the pledges of Free-

men '^0l^ti4rnui Comitatui, subdivifionof ^f which meeting or Court, there fell by occa- the Countic fioH of great Aflemblies much bloud-fhedjlcarcity Sund-ed'° of Viduals, Mutinies, and the like mifchiefes ^ which are incident to the Congregations of people, by which the King was moved to allow a lubdivi- (lon of every Countie into Hundreds, and every Hundred to have a Court, whereunto the people of every Hundred fhould be aCembled twice a yeare for furveigh of Pledges^ and ufe of that Juftice which was formerly executed in that grand Court for the Countie . and the Count or Earle appointed a Baylitfe under him to keepe the hun- dred Court. But in the end, the Rings of this Realme found it neceffary to have all execution of Jufticc immediately from thcmfelveSj by fuch as

were

( 7) were more boand than Earlcs to that (ervice, and The charge of readily fubjeft to correction for their negligence [^^^f^^^J^i^^ urabufe •, and therefore, tooke tothcrafdves the Earics.aiid appointing of a Sheriffeyearely in every County, commitced calling them ricecomitet^ and to them direded fuch ^JJf^„^ ^*-^^^ writs and precepts for executing Jufttce in thepifafedthc County, as fell out needful! to have beene dif- ^'"2- patched, committing to the Sheritfe Cnftodium Comitutui 5 by which the EarJes were fpared oftheir toyles and labours,and that was layd upon the She- rife. So as now the Sheriffe doth all the Kings The shcrifFe is bufinefle in the Countie, and that is now called, u"'^^^**^^'^ the SheritFesTourne 5 that is to fay, heis Judge coCrw not ^i- ofth is grand Courtfor the Countie, andalfbofall venaway from Hundred Courts not given away from the Crown, ^'^^ ^^^^"e.

Hee hath another Court, called the Countie County courc Court, belonging to his office, wherein men may b?thTh "ff^ fue monethly for any debt or dammages under ^ ^ "' ^' 40 ^ and may have writs for to replevy their cattell diftrained and impounded by others, and there try the caufe oftheir diftrefle • and by a writ c^Xkd lufiicies. sixnan m^ay (ue foranyfumme, and in this Court the Sheriffe by a writ,- called an Exigent, doth proclairaemen fued in Courts above, to ren- der their bodjes, or clfe they be Gut-lawed.

This Sheriffe doth ferve the Kings writs of Pro- Th^ office cf. ce(re,be they Sommon?, Attachments to compeli ^^' ^^«"^'^- men to anfwerto the Law^ and all writ^ of execu- tion of the Lav/jaccO' ding to Judgements of Supe- riour Ccurt^for taking of Mens Goods, Lands, or Bodies, as the caufe requireth.

The Hundred Courts, were moft of them CL3 granted

Couits to whoai they were at firft grantcil.

Lor i of the Hundred to appoint two High Confta- blcs.

{ 8 )

granted to Religious Men, Noble men,and others of great place. And alfo many men of good quali- ty have attained by Charter, and fomeby ufage within Mannors of their owne liberty of keeping Law-daycs, and to ule there Juftice appertaining to a Law-day.

Whofoever is Lord of the Hundred Courr^is to appoint two high Conftablcs of the Hundred jand alfo is to appoint in every Village, a petty Confta- ble with a Tithiog-man to attend in his ab(ence, and to be at his commandement when he is pre- fcnt in all fer vices of his office for his affiftancc.

There have beene by ufe and Statute Law (be- fides (urveying of the Pledges of Freemen, and giving the oath of Allcgeance, and making Con- ftables,) many additions of powers and authority given to the Stewards of Lccts and Law-dayes to be put in ure in their Courts ; as for example, they may puni{h Inne- keepers, Vi6tuallers,Bakers, Bat- chers, Poulterers, Fiftimongers, and Tradefinen of all fortSjfelling with under weights or meafures, oratexceffive prizes, or things unwhoKbmc, or ill made in dcceipt of the people. They may pu- fiifh thofe that doe ftop, ftraiten or annoy the high wayes, or doe not according to the provifi- onenaded, repaire or amend them, or divert wa- ter courfts, or deftroy frey of Fifh, or ufe engines or nets to take Deere, Conies, Phefants, orPar- LJcTsand Law- tridges, or build Pigeon houfes ^ except he be -iaycs, Lord of the Mannor, or Parlbn of the Church.

They may alfo take prefentmcnt upon Oath of the xji. fwornejury before them of all felonies j but

they

of what mat- ters they en-

( 9)

they canrior try the MaleFaftor?, onely they naufc by Indenture deliver over thofe prefencments of feionie to the Judges, when they come their circuits into chat Countie. All thofe Courts be- fore menrioned areinutc, and exerciled as Law at this day, concerning the Sheritfes Lavvdayes and Leers, and the offices of High Conftables, perty Conftables, and Tithinv- men 5 howbeit, with fbme further additions by Statute lawes, lay- ing charge upon them for taxation for poore, for Souldiers, and the like 5 and dealing without corruption J and the like.

Gonfervarors of the Peace were in ancient times Confcrvntors certaine^ which were affigned by the King to (ee ^^j^'gd byfhc the Peace maintained, and they were called to the Kings writ for Office by the Kings writ, to continue for terme of [5"^^^° ^fthc their lives, or at the Kings pleafiire. Kings pieafurc

For this Service, choice was made of the coafervators beft men of calling in the Countrie, and but of the Peace, few in the Shire, They might binde any man J^t^^" ^^''^ to keepe the peace, and to good behaviour, by Re- cognizance CO the King with fuerties, and they might by Warrant fend for the party, diredting their warrant to the Sheriffeor Conftable, as they pleafc, toarreftthepartv, and bring him before them. This they u(ed to doe^ when complaint was m ide by any, that heftoodin fcare of another, and fo tooke his Oath • or elie, where rheCon- lervaror himfclfe did without oath or complaint, lee the o'ifpofition of any man iaclined to quar- rel! and brvach of the Peace, or to misbehave

himfelfc

cwas.

(10 )

himfclfeln (bme outragious manner of force or fraud : There by his ovvne Difcrecion he might fend for fuch aicHow, and make him finde Sure- ties of the peace or of his good behaviour, as hee fnould fee caufe ; or dCc commie him to the Goaleifherefufed.

The Judges of either Bench in n^epmlni^er^ Ba- rons oftheExchsquer, Maftcrofche Kolles, and Juftices in Eire and Affizes in cheir circuits, were all without writ Conferv^ators of the Peace in all Shires of England, and continue to this da/.

But now at this day, Confervators of the Peace are out of u(e 5 And in lieu of chem, there are ordained Juftices of Peace, affigned by the Kings Commiffions in every Cotintie, which are moveable at the Kings pleafure ; but the power of placing and difplacing Juftices of the Peace, is by ufcDeligated from the King to the Chancellor.

That there fhould be Juftices of Peace by Commiffions, it was firft enadcd by a Statute made i. Edward 3. and their Authority augmen- ted by many ftatutes made fince in every Kings

a The power of rClgne,

theiuft.of a Xhey are appointed to keepe foure Sefli- riie Offenders ons cvery ycare ; That is, every Quarter one. totheCrownc, Thefe ScHions are a fitting of the Juftices to c'oipencetTe ^'^P^^^h thc afFaifcs of their Commiffions. party grieved. They have power to heare and determine in ^^;^=JJ«Yo\ their Seffions, all . Felonies , breaches of the *.D/c7tf5".b?Us Peace, Contempts and trefpafles, fo farre as ountpoiar to fine the Offender to the Crowne. but not

d'Inquicr de

murder car. cc ^^

Felon.

Confervators of thcPcccc by vertucof their OlJice.

lufticcs of Peace Old ai- nedinljeuof ■ Confervators, Power of pla- cing and dip- placing luft. of Peace by ufe deligated from the King totlic Chan- cellor.

to award rccompencc to the party grieved.

They are to luppreflTe Ryots, and Tumults, to Autiiorityof reftore Pofleffions foreibly taken away ^to examine pcl^if Jhro^h all Felons apprehended and brought before thero^ whom nm au To fee impotent poore people, or maimed fbuldi- jiieCoumy ers provided for, according to the Lawes. And ^ cUeG-ownc! Rogues Vagabonds, and Beggers puniQied. They are both to licence and fupprefle Aiehoufcs, Bad- gers of Come and Viftuals, and to puniQiFore- ftallers, regrators,and engroffers.

Through thefe in effed runne all the County fer- vices to the Crowne, as Taxations of Subfidies^ Muftring men. Arming them, and levying forces, that is done by a fpeciali Commiffion or Precept from the King. Any of thefe Juftices by Oath ta- ken by a man that he ftandeth in feare that another man will beatc him, or kill him, or burne his houfc. Beating, kii- are to (end for the party by warrant of Attachment iing>buining dirededtotheSheriffeorConftable, and then to Amchmems binde the party with fureties by Recognizance to forfuretyof the King to kecpe the peace, and alfo to appeare at '^^ ^^^'^^* the next Seffions of the Peace^ at which next Sefli- ens, when every Juftice of Peace hath therein de- livered all their Recognizances fo taken, then the 0/^!:"^^ parties are called and thecaufe ofbiridingtothe deiivciedby Peace examined, and both parries being heard, Jheifsufions. the whole Bench is to determine as they fee caufe, either to continue the party fo bound, or elfe to difcharge him.

The Juftices of Peace in their SeflTions. are at- QuirterSeffi. tended by the Conftables and BailifFcs of 'al! Hun- Sf^^f^jje'' dreds and liberties within the County, and by rbe Pcacc?°

K Sheriffe

The authority of Juftices of the Peace out of their Scfll-

ons.

(n)

SherifFe or his deputy, to be employed as occafion fhall ferve in executing the precepts and direftions of the Court. They proceed in this Con, The She- rifFJoth fummon 24. Free-hoIderSjdifcreet men of the faid County, whereof fome i <5.are feleded and fworne, and have their charge to ferve as the grand Jury >j the party indifted is to traverfe the indi<^- ment, or elfe to confelTe it, and fo fubmit himfelfe to be fined as the Court (hall thinke meet (regard had to the off: nee) except the punifhment be cer- tainly appointed(as often it isjby fpeciall Statutes.

The Juftices of Peace are many in every Coun- ty, and to them are brought all Traitors, Felons, and other raalefadors of any (brtupon their firft apprehenfion, and that Juftice to whom they are brought, examineth them, and heareth their pecu- lations, but judgeth not upon it^ oncly if he finde the fufpition but light, then hee taketh bond with fureties of the accufed,to appeare either ac the next Affizes, ifitbeamatterof^Treafonor Felony 5 or elfe at the quarter Se/Iions, if it be concerning Ry- ot or misbehaviour, or fome other fmall offence. And hee alfo then bindeth to appeare thofe that give tcftimony and profecutethe accufation, all the acculersand witnefles, and fo fetreth the party at large. And at the AflizesorSeffions (as the cafe falleth out) hecertifieth the Recognizances taken of the accufed, acculers, and witnefles, who being there are called, and appearing, the caufe of the ac- cufed is debated according to Law for his clearing or condemning.

But if the party accufed, (eemc upon pregnant

matter

(13) matter in the accafation and to the Juftice to be guiky, and the offence heinous, or the ofFendor taken with the mancFjthenthe Jnftice is to com- mit the party by his warrant called a Mittimus to the Gaoler of the common Gaole of the Coun- ty, there to remaine umill the Ailizes. And then the Juftice is to cercifiehis accufation, examina- tion, & Recognizancetaken for the appearances and profccution oFthe witne(Ies,(bas the Judges may, when they come,rcadily proceed with hira as the Law requireth.

The Judges of the Aflizesas they bee now be- JticfgesofAffac come into the place of the ancient Jufticesin rrnc^^^nl^j'dg^^ Eyre, cdWtdlufliciarii itinerdntes^ which in the mEyrc about the prime Kings after the Conqueftuntill ^.3. time ^imcofR.i. efpecially,and after in leller meafure even to i?.2. time, did execute the juftice of the Realrae^they began in this (brt.

The King not able to dilpatch bufincfle in his i. Kings Bench. owncperfon, ereded the Court of King Bench^ a.MarfhaisCourt that not able to receive all,nor meet to draw the JishmftTs^^""* people all to one place, there were ordained xoumcs.

Counties & theSherifes Tournes, J^^Wch «"' The authority of Hundred Courts, and particular Aiiv^urhS S«Ss,aTd Lects, andLaw-dayes, « before ^neiy-Crowne

Law.daycs.asit mentioned, which dealt only with ii,{t,cein Eyre^ fomcf°"daTlfair ^*"0^n^ matters for thepublique 5 d.alt in pnvateti.

frtourhingthT but not the private titles of Lands goodlland'n'aii pubhciuegood. or Goods, nor thetryall of grand Tieafons and Fe- off ences of Treafbns and Felonies, but all the lories, of whonj Counties of the Realme were divided into fixe ntZrth"*'"

whole Realms being dividedinto fix Circuia,

R.2 Circuits.

(14)

En^imd divided Gircu^ts. And two learned men well read in into fix CucuitSi theLawesofthe Realme. were affi^ned by the

and two learned ^r' r^ • cr . /-• • j.j

men in the Laws, Kings ComrBiriion tocv^ery Circuir, andtonde afli jncd by the twicc a y cafc through thofe (liires allotted to thar

oncf rSe'nvtfa C^'"^"^^' "^^^'"^. Pfockmation before-hand, a yenre through convetiient time in every Coi!nry,of the time of thofeShucs allot- pheir commln?, and place of their fitting, to the

ted to that circiiir, • , i ^* L j i •

for their try.iU of <^"d the people might attend them m every

private titles to Coiinty of that Circuit.

in/'irxrlX*' They were to ftay 9. or 4. diyes in every

and Felonies, County, and in that time all the caufes of that

whkhthc Couii- County were brought before them by thepar-

liotin""^ "^^ ^ ^**^s grieved, and all the Prifoners of the faid

Gaole in every Shire, and whatfoever cont rover-

fies arifing concerning Life, lands or goods.

The authority The authority of thcfe Judges in Eyre, is in

tranflatcdby Par- part tranfkted by Ad of Parliament to Juftices

cSof Affize"' '' o^ Affize; which be now the Judges of Circuits,.

and they doe u(e the (ame courfe that Juftices in

Eyre did , to proclairoe rhcir comming every

halfe yeare, and the* place of their firciui^.

£'iuft!^es'S- Af. The bufineff:? of the Juftices in Eyre, and of

fizesmuchieiren- the Jufticcs of AflJzeat this day is much lefff ncd,

ed by the Court for that in H .'>, time there was ered ed the Court

PieasXe^kedm of Common-pleas at Wcftminfter , in which

H.j.time. Court have beene ever fince and yet arc, begun

The luiHccsof ^^^ handled the great fuits of iands, debts^ bene-

Aflizc have at this ^ , o <- r /r r 1 j

day y. Commit- fices auQ contrafts, fines for aliuranceot lands ons by which they and recoverics, which were wont to be either in I. Oyer & Term, t^e Kings Bench, or elfe before the Juftices in

a. Gaole delivery. Eyte. But the StatUtC of CjWi«^. C/-?4r. C4^. 1 1. 5.

^'to takt nlir* ^^ negative againft it. Vu-, CommmU pUcita mn

05) fequdHtttf CftrUm noflram^ fed teneantur in ali(ju9 locoCertd:^ which loem Certw mufl: be the Com- mon pleas; yet the Judges of Circuits have now five Commiflions by which they fir.

The firll is a Commiffion of Oyer and Termi- Oi<x snd Termi- ner, dircfted unto themjand many others of the n^r, m whkhthc beft account, in their Circuitsi but in this Com- o'^S" are of the mimon the Judges or Allize are or the ^erum^ i$ the large ft C6- io as without them there can be no proceeding. miOion they have

This Commiilion giveth them power to deal with TreafbnSj Murthers, and all maner of Felo- nies and mifdemeanours whatfbever; and this is the largeft Commiilion that they have.

The fecond is a Ccmmiflion of Gaole delive- ^^°^ He]iverydi, ry; Thatisonely to the Judges themfelves, and Tudgetfifdves the Clerk of the AfTizeaflbciate : And by this and'iheciakof Commiilion they are to dcale vvich every Prifo- '^'^ ^^'*'^- ner in the Gaole^ for what offence foever he bee there. And to proceed with him according to the Lawes of the Realme, and the quality of his offence ^ And they cannot by this Commiilion doe any thing concerning any man, but thofc that are Prilbners in the Gaole. Thecourfenow inufe of execution of this Commilfion of Gaole delivery jis this. There is noPrifoner but is com- mitted by (bme Juftice of Peace, who before he committed him tooke his examination , and bound his accufersand witnefles to appeare and profecute at the Gaole delivery. This Juftice doth ccrtific thefe examinations and bonds, and thereupon the accufer is called folemnly ipto the Court, and when hee appeareth he is willed to

K3 prepare

The manet of the proceedings of the luftices of Cir- cuits in their Cir- cuits.

The courfe now in ufe with the ludges for the ck- ecution of the Commiflion of Gaele delivery.

prepare a Bil of mdiiament againfl: the Prifbner, and goe wich ic to the grand Jury, and give evi- dence upon their oathes, he and the witneffes ^ which he doth : and then the grand Jury write thereupon either BtHa vera^Si then the Prifoncr ftandeth indided^or elfc Igwramus^Si then he is not touched. The grand Jury dehver thefe Bills to the Judges in their Court, and (6 many as they finde indorfed Bi//a vera , they fend for thofe Prifoners, then is every roans indidment put and read to hinij and they afkc him whether hee bee guilty or rtotilf he faith guilty, his confelTion is recorded^ if he fay not guilty, then hee is afked how he will be tryed^he anfwerethjby the Coan- trey. Then the SherifFe is commanded to re- turne the names of 12. Freeholders to the Court, which Freeholders be fworne to make true deli- very betweene the King and the Prilbner, and then the indidiment is againe read, and the wit- neffes fworne, to (peake their knowledge con- cerning the hdc^ and the Prifbner is heard at large, what defence he can make, and then the Jury goe together and confult. And after a while they come in with a verdi(^ of guilty or not guil- ty, which verdi(a the Judges doe record accord- ingly. If any Prifoner plead not guilty upon the indidment, and yet will not put himfelfe to try- all upon the Jury, (or ftand mute) hee (hall bee prefled. ^

The Judges when many prifoners are in the Gaole, doe in the end before they goe, perufe e- very onc.Thofe that were indiftcd by the grand

(17) Jury, and found not guilty by the feleci: Jury, theyjudgc tobequittedjand (o deliver them out of the Gaolc. Thofe that are found guilty by both Juries they judge to death, and command the ShcrifFe to fee execution done. Thofe that refufe tryali by the Country, or fland mute up- on the indiftmenr, they judge to be prefled to death : (bme vvhofe offences are pilfring under twelve pence value, they judge to be whipped. Thofe that confeffc their indiftments^they judge to death jWhipping or othcrwife, as their offence requircth. And thofe that are not indided at all, but their bill of indictment returned with y^»^- ramt^s^ by the grand Jury, and all other in the Gaole againft whom no bills at all are preferred, they doe acquit by proclamation out of the Gaole ^ That one way or other they rid the Gaol ofalltheprifbnersinit. But becaufe (bme pri- (bners have their bookesj and be burned in the hand and fb delivered, it is necefTary to (hew the reafbn thereof. This having their bookes is cal^ led their Clergy, which in ancient time began thus.

For the (carcicy of the Clergy intheRealme Book allowed to of England,tobedifpofcdin Religious houfes, ckigyfonhc or for Priefls, Deacons andClerkes of parifnes, ;X'?.rpld^n"^ there was a prerogative allowed to the Clergy, religious Uoufcs. that if any man that cculd reade as a Clerk, were to be condemned to death, the Bifhop of the Di- ocefie might if he would, ckime him as a Clerk, and hee was to fee him tryed in the face of the Court,

Whether

(i9)

Whether he could reade or not, the book was prepared and brought by the Bifhop 5 and the Judge was CO turne to fome place as hce fhould thinke meere, and if the prifoner could reade, then the Bifhop was to have him delivered over unto him to difpofe of in (bme places of the Clergy, as he fhould think meete. But if either the Bifhop would not demand him : or that the Prifoner could not reade^ then was to bee put to death.

Concerning the . ^°^ ^^^^ Clergy was allowable in the ancient allowing ofthe ti^es and Law, for ail offences whatfoever they Clergy to the pri- wctc, cxcept Ttcafon aud robbing of Churches Ckr^ allowed m their goods and omaments. Bt^t by many Sta- ai offences except tutcs made fincc, the Clergy is taken away for bin"oTicks* M"''^^^^' Burglary, Robbery, Purfe- cutting, and^now taken "' Horfe- ftealing,and divers other felonies particu- wjybymanySta- larized by the Statutes to the Judges; and laftly, rinTreafon. by aStatute made i8.£//ss4^f/^,thc Judgesthem. j.in Burglary, felvcs ate appointed to allow Clergy to fuch as 3. Robbery. (.^j, readc, being not fuch ofFendors from whom

A.Piirfe-cuttmg. /^i • 1 ° • « 1 ^

J. Horfcfteaiing, Clergy IS taken away by any Statute, and to Tee

and in divers o- them bumed in the hand, and Co difcharge them

ttuLdSfr without delivering them tothe Bifhop, howbeit

Ycraii Statutes, the Bifhop appoiuteth the deputy to attend the

Bv the Stat of rg. Judges with a booke to try whether they could

Eliz.theliidges j ' ' •

are appointed to rcadeomot.

allow ciergy.and The third Commiffion that the Judges of Gir-

edin ttTnnr& ^">^^ ^*^^' ^^' * Commiffion directed to them- tod.fchargethe fclves ouely and the Clerk of Aflize to take Af-

£hverm-Them"' ^^^^ ' ^^ ^^'^^^ ^^^^ ^^^ Called JufticCS of Affize,

to the BiSiop."^ and the office of thofe Juftices is to doe right up- on

(19)

«n Writs called Affizcs^brougbtbcroTcthemby ftich as are wrongfully thruft out of their Lands. Of which number of Writs there was far greater (lore brought before ihcm in ancient times then now, for that, mens (cizons and pofleffions are fboncr recovered by feaiing Leafes upon the ground, and by bringing an E]c^me firme, and trying their title fo, then by the long fuites of Allizes.

The fourth Comroiffion, is a Commiffion to J'f^"'^?^""

i.rti L t-TJ to tajtc iNin rrius

rake Nififrim direaed to none but to the Judges & this is dircaed themfclves and their Clerks of Affizes, by which to tvvo ludgcs and they are called JuAices of Ntp Fnm. Thcfe m^ ;f^^^^^*= °^ *^ fi Priu4 happen in this forr, when a fuit is begun Nifi Piius. for any roacrer in one of the three Courts, the Kings Bench, Common Pleas, or the Exchequer here above, and the parties in theirpleadingsdo vary in a point of fad 5 As for example, if in an adion^of debt upon obligation the defendant de- nies the obligation to be his debt, or in any afti- onoftrefpalTc growne for taking away goods, the defendant denieth that he tooke them, or in an adion of the Cafe for flanderous words, the defendant denieth that he fpake them, 8cc.

Then the Plaintiffe is to maintaine and prove that the obligation is the defendants deed, that he either tooke the goods, or fpake the vv'ords 5 upon which deniall and affirmation the Law faith, that ilTueiis joyned betwixt them, which iflucof thefad is to be tryed by a Jury of twelre men of the County where it is fuppofed by the Plaintiffe to be done, and for that purpofe the S Judges

(to)

Jaigts of the Camt doe award a Writ of Fenire facttu in the Kings name to the SherifFe of that Connty, commanding him to caufe fourc and twenty dilcreet Freeholders of his County ac a certaine day to try this iffuc fb joyncd , out of whichfouteandtwenryj onely twelve are cho- fen to ferve. And that double number is return- ed, becauft fonie may make default, and fome be challenged upon kindred, alliance, or partiall dealing.

The(e foure and twenty the Sheriffe doth - name and certific to the Court, and witball thac he hath warned them to come at the day accord- ing to their Writ. But becaufe at his firft fum- mons there fallethno puniftiment upon the foure % and twenty if they come not, they very feldome

or never appeare upon the firft Writ, and upon their default there is another Writ ^ Thcmanncrof * rctumed to the Sheriffe, com- * """S^s. proceeding of lu- maudinghim to difttaiiie them by their Land* ^'T°/cri^s ^Q^PP^^re at a cerraine day appointed by the The coarfcthc ' ^^^^ which IS the ncxt termc ift^T^Nifiprtm lu- liwigcs bold in Jliciarit Ttojlrt ad Afiztts capieaddd venerint^ ^f .of then Gircuitsin which woids thc Writ is Called a Nifi frtHs, and tbeirCoramiflbn ^^ Judgcs oF thc Circuif of that County in that «oncermngthet.v vjcatiou and mcaue time before the day of ap- fenoaiNifiprius pearancc appointed for the Jory above^ hereby their Com mi (Son of Nifi ^rimh^ve authority to rake the appearance of the Jury in the County , before them, and thereto heare the Witnefles and proofes on both fides concerning the idue of fa^, and to take thc vcrdi<S of the Jury, and

againft"

(a I)

againft the day they (hould hare appeared a« bove, CO rcturne the verdid read in the Courcaw bovc, which retnrne is called a Ptflea, Poftca;

And upon this verdidi clearing the matter in fadtjOne way or other, the Judges above give judgement for the party for whom the verdift is found,and for fuch damages and cofts as the Jury doe alTeflc.

By chofe tryalls called ^//7/»r/«^,the Juries and the parties are eafed much of the charge they lliould be put to, by comming to London with their evidences and vvitnefles, and the Courts of Weftminftcr are eafed of much trouble they fliOuId have, if all the Juries for tryalJs fhould appeare and try their caufes in thofe Courts 3 for thole Courts above