Sidebilder
PDF
ePub

the last impulsive cause, it should say that it discontinueę pleadeth villanage; this is no plea, was in his own defence: but the law is otherwise, because the divesting of the manor, which is the for it is but a pursuance and execution of the first intent of the suit, doth include this plea, because murderous intent. it determineth the villanage.

44 Ed. 3.

But if I. S. had fallen down, his dagger drawn, and I. D. had fallen by haste upon his dagger, there I. D. had been felo de se, and I. S. shall go quit.

Also, you may not confound the act with the execution of the act; nor the entire act with the last part, or the consummation of the act.

Lit. cap. de dis

cent.

For if a disseisor enter into religion, the immediate cause is from the party, though the descent be cast in law; but the law doth but execute the act which the party procureth, and therefore the descent shall not bind, et sic è converso.

If a lease for years be made render21 Eliz. ing a rent, and the lessee make a feoffment of part, and the lessor enter, the immediate 24 H. 8. fo. 4. cause is from the law in respect of the Dy. 21. R. forfeiture, though the entry be the act of the party; but that is but the pursuance and putting in execution of the title which the law giveth and therefore the rent or condition shall be apportioned.

9 H. 7. 24. 3 et

So, in the binding of a right by a descent, you are to consider the whole time from the disseisin to the descent cast; and if, at all times, the person be not privileged, the descent binds. And, therefore, if a feme covert be 4P.et M. Dr. 143. disseised, and the baron dieth, and she taketh a new husband, and then the descent is cast: or if a man that is not infra quatuor maria, be disseised, and return into England, and go over sea again, and then a descent is cast, this descent bindeth, because of the interim when the persons might have entered; and the law respecteth not the state of the person at the last time of the descent cast, but a continuance from the very disseised to the descent.

[blocks in formation]

50 E. 3.

So if a tenant in ancient demesne be disseised by the lord, whereby the seigniory is suspended, and the disseisee bring his assize in the court of the lord, frank fee is no plea, because the suit is brought to undo the disseisin, and so to revive the seigniory in ancient demesne.

So if a man be attainted and exe- 7 H. 4. 39. 7 H. cuted, and the heir bring error upon the 6.44. attainder, and corruption of blood by the same attainder be pleaded, to interrupt his conveying in the same writ of error; this is no plea, for then he were without remedy ever to reverse the attainder.

38 Ed. 3. 32

So if tenant in tail discontinue for life rendering rent, and the issue brings formedon, and the warranty of his ancestor with assets is pleaded against him, and the assets is layed to be no other but his reversion with the rent; this is no plea, because the formedon, which is brought to undo this discontinuance, doth inclusively undo this new reversion in fee, with the rent thereunto annexed.

But whether this rule may take place where the matter of the plea is not to be avoided in the same suit, but another suit, is doubtful; and I rather take the law to be, that this rule doth extend to such cases; for otherwise, the party were at a mischief, in respect the exceptions and bars might be pleaded cross, either of them, in the contrary suit; and so, the party altogether prevented and intercepted to come by his right.

So if a man be attainted by two several attainders, and there is error in them both, there is no reason but there should be a remedy open for the heir to reverse those attainders being erroneous, as well if they be twenty as one.

And, therefore, if in a writ of error brought by the heir of one of them, the attainder should be a plea peremptorily; and so again, if in error brought of that other, the former should be a plea; these were to exclude him utterly of his right; and therefore it shall be a good replication to say, that he hath a writ of error depending of that also, and so the court shall proceed: but no judgment

Non potest adduci exceptio ejusdem rei, cujus peti- shall be given till both pleas be discussed; and

tur dissolutio

Ir were impertinent and contrary in itself, for the law to allow of a plea in bar of such matter as is to be defeated by the same suit; for it is included otherwise a man should never come to the end and effect of his suit, but be cut off in the way.

And, therefore, if tenant in tail of a manor, whereunto a villain is regardant, discontinue and die, and the right of the entail descend unto the villain himself, who brings formedon, and the

if either plea be found without error, there shall be no reversal either of the one or of the other; and if he discontinue either writ, than shall it be no longer a plea; and so of several outlawries in a personal action.

And this seemeth to me more reasonable, than that generally an outlawry or an attainder should be no plea in a writ of error brought upon a diverse outlawry or attainder, as 7 H. IV. and 7 H. VI. seem to hold; for that is a remedy too large for the mischief; for there is no reason but if any

of the outlawries or attainders be indeed without error, but it should be a peremptory plea to the person in a writ of error, as well as in any other action.

37 R.

much quiet and certainty, and that in two sorts; first, because it favoureth acts and conveyances executed, taking them still beneficially for the grantees and possessors: and secondly, because it makes an end of many questions and doubts about construction of words; for if the labour were only to pick out the intention of the parties, every judge would have a several sense; whereas this rule doth give them a sway to take the law more certainly one way.

But if a man levy a fine sur conusaunce de droit come ceo que il ad de son done, and suffer a recovery of the same lands, and there be error in them both, he cannot bring error first of the fine, because, by the recovery, his title of error is discharged and released in law inclusivè but he must begin with the error upon the recovery, which he may do, because a fine executed barreth no titles that accrue de puisne tems after the fine levied, and so restore himself to his title of error upon the fine: but so it is not in the former case of the attainder; for a writ of error to a former attainder is not given away by a second, ex-examine it in grants, and then in pleadings. cept it be by express words of an act of Parliament, but only it remaineth a plea to his person while he liveth, and to the conveyance of his heir after his death.

But this rule, as all other which are very general, is but a sound in the air, and cometh in sometimes to help and make up other reasons without any great instruction or direction; except it be duly conceived in point of difference, where it taketh place, and where not. And first we will

The force of this rule is in three things, in ambiguity of words, in implication of matter, and deducing or qualifying the exposition of such grants as were against the law, if they were taken according to their words.

But if a man levy a fine where he hath nothing in the land, which inureth by way of conclusion And, therefore, if I. S. submit him- 2 R. 3. 18. only, and is executory against all purchases and self to abitrement of all actions and 21 H. 7. 29. new titles which shall grow to the conusor after-suits between him and I. D. and I. N. it rests wards, and he purchase the land, and suffer a ambiguous whether this submission shall be inrecovery to the conusee, and in both fine and re-tended collectivè of joint actions only, or distribucovery there is error; this fine is Janus bifrons, and will look forwards, and bar him of his writ of error brought of the recovery; and therefore it will come to the reason of the first case of the attainder, that he must reply, that he hath a writ also depending of the same fine, and so demand judgment.

16 E. 3.

tivè of several actions also; but because the words shall be strongliest taken against I. S. that speaks them, it shall be understood of both: for if I. S. had submitted himself to abitrement of all actions and suits which he hath now depending, except it be such as are between him and I. D. and I. N. now it shall be understood collectivè only of joint actions, because in the other case large construction was hardest against him that speaks, and in this case strict construction is

To return to our first purpose, like Fitz. age, 45. law is it if tenant in tail of two acres make two several discontinuances to several persons for life rendering a rent, and bringeth a for-hardest. medon of both, and in formedon brought of white acre the reversion and rent reserved upon black acre is pleaded, and so contrary: I take it to be a good replication, that he hath formedon also upon that depending, whereunto the tenant hath pleaded the descent of the reversion of white acre; and so neither shall be a bar: and yet there is no doubt but if in a formedon the warranty of tenant in tail with assets be pleaded, it is no replication for the issue to say, that a præcipe dependeth brought by I. S. to evict the assets.

So if I grant ten pounds rent to 8 Ass. p. 10. baron and feme, and if the baron die that the feme shall have three pounds rent, because these words rest ambiguous whether I intend three pounds by way of increase, or three pounds by way of restraint and abatement of the former rent of ten pounds, it shall be taken strongliest against me that am the grantor, that is three pounds addition to the ten pounds: but if I had let lands to baron and feme for three lives, reserving ten pounds per annum, and, if the baron

But the former case standeth upon the particu- die, reserving three pounds; this shall be taken lar reason before mentioned.

REGULA III.

Verba fortius accipiuntur contra proferentem. THIS rule, that a man's deeds and his words shall be taken strongliest against himself, though it be one of the most common grounds of the law, it is notwithstanding a rule drawn out of the depth of reason; for, first, it is a schoolmaster of wisdom and diligence in making men watchful in their own business; next, it is the author of VOL. III.-29

contrary to the former case, to abridge my rent only to three pounds.

So if I demise omnes boscos meos in 14 H. 8, 29 H. 8. villa de Dale for years, this passeth the Dr. 19. soil; but if I demise all my lands in Dale exceptis boscis, this extendeth to the trees only, and not to the soil.

So if I sow my land with corn, and let it for years, the corn passeth to the lessee, if I except it not; but if I make a lease for life to I. S. upon condition that upon request he shall make me a

lease for years, and I. S. sow the ground, and then I make request, I. S. may well make me a lease excepting his corn, and not break the condition.

8 H. 7. 8 H. 9.

So if I let white acre, black acre, and green acre to I. S. excepting white acre, this exception is void, because it is repugnant; but if I let the three acres aforesaid, rendering twenty shillings rent, viz. for white acre ten shillings, and for black acre ten shillings, I shall not distrain at all in green acre, but that shall be discharged of my

So if I have free warren in my own 5 32 H. 6. 24. land, and let my land for life, not menJH.8.Dy.30.6. tioning the warren, yet the lessee, by implication, shall have the warren discharged and extract during his lease: but if I let the land unarent. cum libera warrena, excepting white acre, there the warren is not by implication reserved unto me either to be enjoyed or extinguished; but the lessee shall have warren against me in white

acre.

So if I. S. hold of me by fealty and 29 Ass. pl. 10. rent only, and I grant the rent, not speaking of the fealty; yet the fealty by implication shall pass, because my grant shall be taken strongly as of a rent service, and not of a rent secke.

Otherwise had it been if the seigniory 44 Ed. 3. 19. had been by homage, fealty, and rent, because of the dignity of the service, which could not have passed by intendment by the grant of the rent but if I be seised of the manor of Dale in fee, whereof I. S. holds by fealty and rent, and I grant the manor, excepting the rent, the fealty shall pass to the grantee, and I. S. shall have but a rent secke.

26 Ass. pl. 66.

So in grants against the law, if I give land to I. S. and his heirs males, this is a good fee-simple, which is a larger estate than the words seem to intend, and the word "males" is void. But if I make a gift in tail, reserving rent to me and the heirs of my body, the words "of my body" are not void, and to leave it rent in fee-simple; but the words "heirs and all" are void, and leave it but a rent for life; except, that you will say, it is but a limitation to any my heir in fee-simple which shall be heir of my body; for it cannot be rent in tail by reservation.

45 Ed. 3. 290. 24 R.

But if I give land with my daughter in frank marriage, the remainder to I. S. and his heirs, this grant cannot be good in all parts, according to the words: for it is incident to the nature of a gift in frank marriage, that the donee hold of the donor; and therefore my deed shall be taken so strongly against myself, that rather than the remainder shall be void, the frank marriage, though it be first placed in the deed, shall be void as a frank marriage.

But if I give land in frank marriage, reserving to me and my heirs ten pounds rent, now the frank marriage stands good, and the reservation is void, because it is a limitation of a benefit to myself, and not to a stranger.

[blocks in formation]

26 Ass. pl. 66.

So if I grant a rent to I. S. and his 4 H. 6. 22. heirs out of my manor of Dale, et obligo 46 E. 3. 18. manerium prædictum et omnia bona et catalla mea super manerium prædictum existentia ad distringendum per ballivos domini regis: this limitation of the distress to the king's bailiffs is void, and it is good to give a power of distress to I. S. the grantee, and his bailiffs.

But if I give land in tail tenendo de 2 Ed. 4. 5. capitalibus dominis per redditum viginti solidorum per fidelitatem: this limitation of tenure to the lord is void; and it shall not be good, as in the other case, to make a reservation of twenty shillings good unto myself; but it shall be utterly void, as if no reservation at all had been made: and if the truth be that I, that am the donor, hold of the lord paramount by ten shillings only, then there shall be ten shillings only reserved upon the gift in tail as for ovelty.

21 Ed. 3. 49. 31

46. Plow. fo. 37.

35 H. 6.34.

So if I give land to I. S. and the heirs of his body, and for default of et 32 H. 8. Dyer such issue quod tenementum prædictum revertatur ad I. N. yet these words of reservation will carry a remainder to a stranger. But if I let white acre to I. S. excepting ten shillings rent, these words of exception to mine own benefit shall never inure to words of reservation.

But now it is to be noted, that this rule is the last to be resorted to, and is never to be relied upon but where all other rules of exposition of words fail; and if any other rule come in place, this giveth place. And that is a point worthy to be observed generally in the rules of the law, that when they encounter and cross one another in any case, it be understood which the law holdeth worthier, and to be preferred; and it is in this particular very notable to consider, that this being a rule of some strictness and rigour, doth not, as it were, his office, but in absence of other rules which are of more equity and humanity; which rules you shall find afterwards set down with their expositions and limitations.

But now to give a taste of them to this present purpose: it is a rule, that general words shall never be stretched too far in intendment, which the civilians utter thus: Verba generalia restringuntur ad habilitatem personæ, vel ad aptitudinem rei.

Therefore, if a man grant to another, 14 Ass. pl. 21. common intra metas et bundas villa de Dale, and part of the ville is his several, and part is his waste and common; the grantee shall not have

[ocr errors]

common in the several; and yet that is the strongest exposition against the grantor.

Lit. cap. cond.

So it is a rule, Verba ita sunt intelligenda, ut res magis aleat, quam pereat: and therefore if I give land to I. S. and his heirs, reddendo quinque libras annuatim to I. D. and his heirs, this implies a condition to me that am the grantor; yet it were a stronger exposition against me, to say the limitation should be void, and the feoffinent absolute.

22 H. 6. 43.

Now to examine this rule in pleadings as we have done in grants, you shall find that in all imperfections of pleadings, whether it be in ambiguity of words and double intendments, or want of certainty and averments, the plea shall be strictly and strongly against him that pleads. For ambiguity of words, if in a writ of entry upon a disseisin, the tenant pleads jointenancy with I. S. of the gift and feoffment of I. D. judgment de briefe, the demandant saith that So it is a rule, that the law will not long time before I. D. any thing had, the demandant intend a wrong, which the civilians himself was seised in fee quousque prædict' I. D. utter thus: Ea est accipienda interpretatio, quæ vitio super possessionem ejus intravit, and made a joint caret. And therefore if the executors of I. S. feoffment, whereupon he the demandant re-entergrant omnia bona et catalla sua, the goods which ed, and so was seised until by the defendant they have as executors will not pass, because alone he was disseised; this is no plea, because non constat whether it may not be a devastation, the word intravit may be understood either of a and so a wrong; and yet against the trespasser lawful entry, or of a tortious; and the hardest that taketh them out of their hand, they shall de-against him shall be taken, which is, that it was clare quod bona sua cepit. a lawful entry; therefore he should have alleged precisely that I. D. disseisivit.

10 Ed. 4. 1.

So it is a rule, words are to be understood that they work somewhat, and be not idle and frivo- So upon ambiguity that grows by lous: Verba aliquid operari debent, verba cum effec-reference, if an action of debt be brought tu sunt accipienda. And, therefore, if I buy and sel! you four parts of my manor of Dale, and say not in how many parts to be divided, this shall be construed four parts of five, and net of six nor seven, &c., because that it is the strongest against me; but on the other side, it shall not be intended four parts of four parts, that is whole of four quarters; and yet that were strongest of all, but then the words were idle and of none effect.

3 H. 6. 20.

3 Ed. 6.

Dy. 66.

against I. N. and I. P. sheriffs of London, upon an escape, and the plaintiff doth declare upon an execution by force of a recovery in the prison of Ludgate sub custodia I. S. et I. D. then sheriffs in 1 K. H. VIII. and that he so continued sub custodia I.,B. et I. G. in 2 K. H. VIII. and so continued sub custodia I. N. et I. L. in 3 K. H. VIII. and then was suffered to escape; I. N. and I. L. plead that before the escape, supposed at such a So it is a rule, Divinatio non inter-day anno superius in narratione specificato, the pretatio est, quæ omnino recedit a litera: said I. D. and I. S. ad tunc vicecomites suffered and therefore if I have a fee farm-rent issuing out him to escape; this is no good plea, because of white acre of ten shillings, and I reciting the there be three years specified in the declaration, same reservation do grant to I. S. the rent of five and it shall be hardest taken that it was 1 or 3 H. shillings percipiend' de reddit' prædict' et de omni- | VIII. when they were out of office'; and yet it is bus terris et tenementis meis in Dale, with a clause nearly induced by the ad tunc vicecomites, which of distress, although there be atturnement, yet should leave the intendment to be of that year in nothing passeth out of my former rent; and yet which the declaration supposeth that they were that were strongest against me to have it a double sheriffs; but that sufficeth not, but the year must rent, or grant of part of that rent with an enlarge- be alleged in fact, for it may be it was mislaid by ment of a distress in the other land, but for that the plaintiff, and therefore the defendants meanit is against the words, because copulatio verborum ing to discharge themselves by a former escape, inclinat exceptionem in eodem sensu, and the word which was not in their time, must allege it prede, anglicè out of, may be taken in two senses, cisely. that is, either as a greater sum out of a less, or as a charge out of land, or other principal interest; and that the coupling of it with lands and tenements, viz., I reciting that I am seized of such a rent of ten shillings, do grant five shillings percipiend' de eodem reddit', it is good enough without atturnement; because percipiend' de, etc. may well be taken for parcella de, etc. without violence to the words; but if it had been percipiend' de, I. S. without saying de redditibus prædict', although I. S. be the person that payeth me the foresaid rent of ten shillings, yet it is void; and so it is of all other rules of exposition of grants, when they meet in opposition with this rule, they are preferred.

26 H. S.

For incertainty of intendment, if a warranty collateral be pleaded in bar, and the plaintiff by replication, to avoid warranty, saith, that he entered upon the possession of the defendant, non constat whether this entry was in the life of the ancestor, or after the warranty attached; and therefore it shall be taken in hardest sense, that it was after the warranty descended, if it be not otherwise averred.

38 H. 6. 18. 39 H. 6. 5.

For impropriety of words, if a man plead that his ancestors died by protestation seised, and that I. S. abated, &c., this is no plea, for there can be no abatement except there be a dying seised alleged in fact; and an

abatement shall not be improperly taken for dis- | makes against the defendant, and it is to be seissin in pleading, car parols sont pleas. brought in on the plaintiff's side, and that without traverse.

9 R. Dy. fo. 256.

For repugnancy, if a man in avowry declare that he was seised in his demesne as of fee of white acre, and being so seised did demise the same white acre to I. S. habendum the moiety for twenty-one years from the date of the deed, the other moiety from the surrender, expiration, or determination of the estate of I. D. qui tenet prædict' medietatem ad terminum vitæ suæ reddend' 40s. rent: this declaration is insufficient, because the seisin that he hath alleged in himself in his demesne as of fee in the whole, and the state for life of a moiety, are repugnant; and it shall not be cured by taking the last, which is expressed to control the former, which is but general and formal; but the plea is naught, and yet the matter in law had been good to have entitled to have distrained for the whole rent.

But the same restraint follows this rule in pleading that was before noted in grants: for if the case be such as falleth within another rule of pleadings, then this rule may not be urged.

9. Ed. 4. 4 Ed. 6. Plow.

And therefore it is a rule that a bar is good to a common intent, though not to every intent. As if a debt be brought against five executors, and three of them make default, and two appear and plead in bar a recovery had against them two of three hundred pounds, and nothing in their hands over and above that sum: if this bar should be taken strongliest against them, it should be intended that they might have abated the first suit, because the other three were not named, and so the recovery not duly had against them; but because of this other rule the bar is good: for that the more common intent will say, that they two did only administer, and so the action well considered; rather than to imagine, that they would have lost the benefit and advantage of abating the writ. So there is another rule, that in pleading a man shall not disclose that which is against himself: and therefore if it be a matter that is to be set forth on the other side, then the plea shall not be taken in the hardest sense, but in the most beneficial, and to be left unto the contrary party to allege.

28 H. 8. Dy. fo. 17.

And, therefore, if a man be bound in an obligation, that if the feme of the obligee do decease before the feast of St. John the Baptist, which shall be in the year of our Lord God 1598, without issue of her body by her husband lawfully begotten then living, that then the bond shall be void; and in debt brought upon this obligation the defendant pleads that the feme died before the said feast without issue of her body then living: if this plea should be taken strongliest against the defendant, then should it be taken that the feme had issue at the time of her death, but this issue died before the feast; but that shall not be so understood, because it

30 E. 3.

So if in a detinue brought by a feme against the executors of her husband for her reasonable part of the goods of her husband, and her demand is of a moiety, and she declares upon the custom of the realm, by which the feme is to have a moiety, if there be no issue between her and her husband, and the third part if there be issue had, and declareth that her husband died without issue had between them; if this count should be hardliest construed against the party, it should be intended that her husband had issue by another wife, though not by her, in which case the feme is but to have the third part likewise;, but that shall not be so intended, because it is a matter of reply to be showed of the other side.

And so it is of all other rules of pleadings, these being sufficient not only for the exact expounding of these other rules, but obiter to show how this rule which we handle is put by when it meets with any other rule.

As for acts of Parliament, verdicts, judgments, &c. which are not words of parties, in them this rule hath no place at all, neither in devises and wills, upon several reasons; but more especially it is to be noted, that in evidence it hath no place, which yet seems to have some affinity with pleadings, especially when demurrer is joined upon the evidence.

13. 14 R. P. 412

And, therefore, if land be given by will by H. C. to his son I. C. and the heirs males of his body begotten; the remainder to F. C. and the heirs males of his body begotten. the remainder to the heirs males of the body of the devisor: the remainder to his daughter S. C. and the heirs of her body, with a clause of perpetuity; and the question comes upon the point of forfeiture in an assize taken by default, and evidence is given, and demurrer upon evidence, and in the evidence given to maintain the entry of the daughter upon a forfeiture, it is not set forth nor averred that the devisor had no other issue male, yet the evidence is good enough, and it shall be so intended; and the reason thereof cannot be, because a jury may take knowledge of matters not within the evidence; and the court contrariwise cannot take knowledge of any matter not within the pleas; for it is clear that if the evidence had been altogether remote, and not proving the issue, there although the jury might find it, yet a demurrer might well be taken upon the evidence.

But if I take the reason of difference to be between pleadings, which are but openings of the case, and evidences which are the proofs of an issue; for pleadings being but to open the verity of the matter in fact indifferently on both parts have no scope and conclusion to direct the construction and intendment of them, and therefore

« ForrigeFortsett »