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 shall have but a rent secke. So in grants against the law: if I give land to I. S. and his heirs males, this is a good fee-simple, which is a larger estate than the words seem to intend, and the word "males" is void. But if I make a gift in tail, reserving rent to me and the heirs of my body, the words "of my body" are not void, and so to leave it a 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 a rent in tail by reservation. So 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. 2 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. 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 rent. pl. 17. So if I grant a rent to I. S. and his heirs out of my manor of 40 E. 3 f. 18. Dale, et obligo 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 tenendum de capitalibus dominis per 2 Ed. 4. f. 5. redditum viginti solidorum et fidelitatem: this limitation of tenure 1 Perhaps Webb v. Porter cited by Sir Matthew Hale in his notes on Co. Lit. 21 a. 2 All these remaining cases of grants against the law are omitted in the Camb, MS. pl. 11. 21 Ed. 3. f. 49. to the lord is void; and it shall not be good, as in the other case, to make the reservation of twenty shillings good unto myself; but it shall be utterly void, as if no reservation at all had been made and if the truth be that I, that am the donor, hold of the lord paramount by ten shillings only, then there shall be ten shillings only intended to be reserved upon the gift in tail as for owelty. So if I give land to I. S. and the heirs of his body, and for default of such issue quod tenementum prædictum revertatur ad I. N.; yet these words of reversion will carry a remainder to a stranger. But if I let white acre to I. S. excepting ten 35 H. 6. f. 34. shillings rent, these words of exception to mine own benefit shall never inure to words of reservation. But now it is to be noted, that this rule is the rule which is last to be resorted to, and is never to be relied upon but where all other rules of exposition of words fail; and if any other rule come in place, this giveth place. And that is a point worthy to be observed generally in the rules of the law, when they encounter and cross one another in any case, that 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 to a foreign intendment; which the civilians utter thus: Verba generalia restringuntur ad habilitatem personæ, vel ad aptitudinem 14 Ass. pl. 21. rei. Litt sec. 345. Therefore, if a man grant to another common intra metas et bundas villa de Dale, and part of the ville is his several, and part is his waste and common; the grantee shall not have common in the several: and yet that is the strongest exposition against the grantor. So it is a rule, Verba ita sunt intelligenda, ut res magis valeat, 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 feoffment absolute. So it is a rule, that the law will not intend a wrong; which the civilians utter thus: Ea est accipienda interpretatio, quæ vitio pl. 1. caret. And therefore if the executors of I. S. grant omnia 10 Ed. 4. f. 1 bona et catalla sua, the goods which they have as executors will not pass, because non constat whether it may be a devastation, and so a wrong: and yet against a trespasser that taketh them out of their hand they shall declare quod bona sua cepit. So it is a rule, words are to be understood that they work somewhat, and be not idle and frivolous: Verba aliquid operari debent; verba cum effectu sunt accipienda. And therefore if I bargain and sell you four parts of my manor of Dale, and say not in how many parts to be divided; this shall be construed four parts of five, and not of six nor seven, &c. because that is strongest against me. But on the other side, it shall not be intended four parts of four parts, that is the whole, or four quarters; and yet that were strongest of all: but then the words were idle and of none effect. pl. 34 So it is a rule, Divinatio, non interpretatio est, quæ omnino recedit a litera. And therefore if I have a fee farm-rent issuing out of white acre of ten shillings, and I reciting the same reservation do grant to I. S. the rent of five shillings percipiend' 3 H. 6. f. 20. de reddit' prædict' et de omnibus terris et tenementis meis in Dale, with clause of distress; although there be atturnment, yet nothing passeth out of my former rent. And yet that were strongest against me, to have it a double rent or grant of part of that rent with an enlargement of a distress in the other land: but, for that it is against the words,-because copulatio verborum inclinat acceptionem in eodem sensu, and the word de (anglicè out of) may be taken in two senses, that is, either as a less sum out of a greater, or as a charge out of land or other principal interest; and that the coupling of it with lands and tenements doth define the sense to be one rent issuing out of another, and not as a less rent to be taken by way of computation out of a greater; therefore nothing passeth of that rent. But if it stood of itself, without these words "lands and tenements: " viz. I, reciting that I am seised of such a rent of ten shillings, do grant five shillings percipiend' de eodem reddit' it is good enough with atturnment; because percipiend' de etc. may well be taken for parcella de etc. without violence to the words. But if it had The Camb. MS. here gives a different example: "So if I grant all the timber trees crescentes super terras meas in D., and I have lands in D. in fee simple and other lands for life, this grant shall be construed only to extend to the lands I have in fee simple and yet the other exposition were stronger against me. And so it is of al! other rules of exposition of words." And here this Regulu ends in the MS. : pl. 27. been percipiend' de I. S. without saying de redditibus prædicť, although I. S. be the person that payeth me the foresaid rent of ten shillings, yet it is void. And so it is of all other rules of exposition of grants; when they meet in opposition with this rule, they are preferred. Now to examine this rule in pleadings as we have done in grants; you shall find that in all imperfections of pleadings; whether it be in ambiguity of words and double intendments; or want of certainty and averments; or impropriety of words; or repugnancy and absurdity of words; ever the plea shall be strictly and strongly taken against him that pleads. For ambiguity of words: 22 H 6. f. 43. If in a writ of entry upon disseisin the tenant pleads jointenancy with I. S. of the gift and feoffment of I. D. judgment de briefe; and the demandant saith that long time before I. D. any thing had, the demandant himself was seised in fee quousque prædict' I. D. super possessionem ejus intravit, and made a joint feoffment, whereupon he the demandant reentered, and so was seised until by the defendant alone he was disseised; this is no plea: because the word intravit may be understood either of a lawful entry, or of a tortious, and the hardest against him shall be taken, which is, that it was a lawful entry: therefore he should have alleged precisely, that I. D. disseisivit. Dy. f. 66. So upon ambiguity that grows by reference: if an action of debt be brought against I. N. and I. P. sheriffs of London, upon an escape, and the plaintiff doth declare upon an execution by force of a recovery in the prison of Ludgate sub custodia I. S. et I. D. then sheriffs in 1 K. H. VIII. and that he so continued 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. P.' plead, that before the escape supposed, at such a day anno superius in narratione specificato, the said I. B. and I. G. ad tunc vicecomites suffered him to escape; this is no good plea: because there be three years specified in the declaration, and it shall be hardest taken that it was 1 or 3 H. VIII. when they were out of office. And yet it is nearly induced by the ad tunc vicecomites, which should lead the intendment to be of that year in which the declaration supposeth that they were sheriffs; but that sufficeth not, but the year 1 L. in MSS. It seems intended the defendants should come into office in the 4th year, and the case is so stated in Dyer. must be alleged in fact; for it may be it was mislaid by the plaintiff, and therefore the defendants meaning to discharge themselves by a former escape, which was not in their time, must allege it precisely. For incertainty of intendment: If a warranty collateral be pleaded in bar, and the plaintiff by [26 H. 8.] replication, to avoid the warranty, saith that he entered upon the possession of the defendant; non constat whether this entry was in the life of the ancestor, or after the warranty attached: and therefore it shall be taken in hardest sense, that it was after the warranty descended, if it be not otherwise averred. For impropriety of words: pl. 6. If a man plead that his ancestor died by protestation seised, 39 H. 6. f. 5. 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 disseisin in pleading, car parols font pleas. For repugnancy: If a man in his avowry declare, that he was seised in his de- Dy. f. 256. mesne as of fee of white acre, and being so seised did demise the same white acre to I. S. habendum the one moiety for twentyone 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 estate for life of a moiety, are repugnant; and it shall not be cured by taking the last, which is express, to control the former, which is but general and formal; but the plea is naught: yet the matter in law had been good to have entitled him to have distrained for the whole rent. But the same restraint follows this rule in pleadings that was before noted in grants: for if the case be such as falleth within another rule of pleading, then this rule may not be urged. And therefore, It is a rule that a bar is good to a common intent, though not to every intent. As if 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, then it should be |