Lit, scc. 6 3.

REGULA IX.

Quod remedio destituitur ipsa re valet, si culpa absit.1

THE benignity of the law is such as, when to preserve the principles and grounds of law it depriveth a man of his remedy without his own fault, it will rather put him in a better degree and condition than in a worse: for if it disable him to pursue his action, or to make his claim, sometimes it will give him the thing itself by operation of law without any act of his own; sometimes it will give him a more beneficial remedy.

And therefore if the heir of the disseisor which is in by descent make a lease for life, the remainder for life unto the disseisee, and the lessee for life die; now the frank tenement is cast upon the disseisee by act in law, and thereby he is disabled to bring his præcipe to recover his right; whereupon the law judgeth him in of his ancient right as strongly as if it had been recovered and executed by action; which operation of law is by an ancient term and word of law called a remitter.

But if there may be assigned any default or laches in him, either in accepting the freehold or in accepting the interest that draws the freehold, then the law denieth him any such benefit.

And therefore if the heir of the disseisor make a lease for years, the remainder in fee to the disseisee; the disseisee is not remitted and yet the remainder is in him without his own knowledge or assent; but, because the freehold is not cast upon him by act in law, no remitter.3

So if the heir of the disseisor infeoff the disseisee and a stranger, Lit. sec. 685. and make livery to the stranger; although the stranger die before any agreement or taking of the profits by the disseisee, yet he is not remitted: because though a moiety be cast upon

The Camb. MS. has: "cui actio per legem citra culpam suam eripitur, ei benignitas legis largitur rem ipsam," Harl. MS. 6688. gives both forms of the maxims.

2 The Camb, MS omits all the cases of remitter, and the other cases down to that of the rent charge upon condition, and only has the observation: "This is the reason of a Remitter, because the law taketh away the action and suit which cannot be held against the party himself, and therefore the law without circumstance of recovery putteth him in of hisbest right."

The earliest edition has a Quod nota, and two of the best MS. leave out at the commencement the words, "the heir of; " all of which seems to point to some contemporary doubt about the position here maintained. I am not aware of any distinct authority for it, but it seems implied in Coke's reasoning on Litt. sec. 681., and of Littleton in sec. 682. The disseisee may disagree and it is his own laches to accept. The next marginal reference to Littleton I have retained, because, though it does not lay down Bacon's position, he may well have drawn the inference thence.

him by survivor, yet that is but jus accrescendi, and it is no casting of the freehold upon him by act in law, but he is still as an immediate purchaser; and therefore no remitter.

So if the husband be seised in the right of his wife, and discontinue and dieth, and the feme takes another husband, who takes a feoffment from the discontinuee to him and his wife; the feme is not remitted: and the reason is, because she was once sole, and so a laches in her for not pursuing her right.' But if Lit. sec. 666. the feoffment taken back had been to the first husband and her

self, she had been remitted.

Br. Tit. Re

mitter, pl. 49.

Yet if the husband discontinue the lands of the wife, and the Plow. f. 111. discontinuee make a feoffment to the use of the husband and wife, she is not remitted; but that is upon a special reason, upon the letter of the statute of 27 H. VIII. of uses, that willeth that the cestuy que use shall have the possession in quality, form, and degree, as he had the use. But that holdeth place only upon the first vester of the use: for when the use is once absolutely executed and vested, then it doth insue merely the nature of possessions; and if the discontinuee had made a feoffment in fee to the use of I. S. for life, the remainder to the use of baron and feme, and lessee for life die; now the feme is remitted, causa qua supra.

Also if the heir of the disseisor make a lease for life, the remainder to the disseisee, who chargeth the remainder, and lessee for life dies; the disseisee is not remitted: and the reason is, his intermeddling with the wrongful remainder, whereby he hath affirmed the same to be in him, and so accepted it. But if the heir of the disseisor had granted a rent charge to the disseisee, and afterwards made a lease for life, the remainder to the disseisee, and lessee for life had died, the disseisee had been remitted; because there appeareth no assent or acceptance of any estate in the freehold, but only of a collateral charge.

Dy. f. 54.

pl. 27.]

So if the feme be disseised, and intermarry with the disseisor, [6 Ed. 3. f. 17. who makes a lease for life, rendering rent, and dieth leaving a son by the same feme, and the son accepts the rent of lessee for life, and then the feme dies, and the lessee for life dies; the son is not remitted: yet the frank tenement was Dy. f. 30. pl. cast upon him by act in law; but because he had agreed to

A note in the first edition denies this to be law, agreeing with Coke in his note on Litt. sec. 671.

207.

be in of the tortious reversion by acceptance of the rent, therefore no remitter.

So if tenant in tail discontinue, and the discontinuee make a lease for life, the remainder to the issue in tail being within age, and at full age the lessee for life surrendereth to the issue in tail, and tenant in tail die, and lessee for life die; yet the issue is not remitted: and yet if the issue had accepted a feoffment within age, and had continued the taking of the profits when he came of full age, and then the tenant in tail had died; notwithstanding his taking of the profits, he had been remitted. For that which guides the remitter is, if he be once in of the freehold without any laches: as if the heir of the disseisor enfeoffs the heir of the disseisee, who dies, and it descends to a second heir, upon whom the frank tenement is cast by descent, who enters and takes the profits, and then the disseisee dies; this is a remitter, causa qua supra.

Also if tenant in tail discontinue for life, and take a surrender of the lessee, now he is remitted and seised again by force of the tail; and yet he cometh in by his own act: but Lit. sec. 636. this case differeth from all the other cases; because the dis

Dy. f. 2.

continuance was but particular at first, and the new gained reversion is but by intendment and necessity of law, and, therefore, is knit, as it were ab initio, with a limitation to determine, whensoever the particular discontinuance endeth and the estate cometh back to the ancient right.

To proceed from cases of remitter, which is a great branch of this rule, to other cases:

If executors do redeem goods pledged by their testator with their own money, the law doth convert so much goods as doth amount to the value of that they lay forth to themselves in property; and upon a plea of fully administered it shall be allowed and the reason is, because it may be matter of necessity for the well administering of the goods of the testator and executing of their trust, that they disburse money of their own; for else perhaps the goods would have been forfeited, and he that had them in pledge would not accept other goods but money and so it is a liberty which the law gives them; and then they can have no suit against themselves; and therefore the law gives them leave to retain so much goods by way of allowance.

And if there be two executors, and one of them pay the

money; he may likewise retain against his companion, if he have notice thereof. But if there be an overplus of goods, Dy. f. 187. above the value of that he hath disbursed, then ought he by his claim to determine which goods he doth elect to have in value; or else before such election if his companion do sell all the goods, he hath no remedy but in the spiritual court: for to say he should be tenant in common with himself and his companion pro rata of that he doth lay out, the law doth reject that course for intricateness.

7. in fine.]

So if I. S. have a lease for years worth twenty pounds by [29 H. 8. the year, and grant unto I. D. a rent of ten pounds a year, and after make him his executor; now I. D. shall be charged with assets ten pounds only, and the other ten pounds shall be allowed and considered to him: and the reason is, because the not refusing shall be accounted no laches to him, because an executorship is pium officium, and matter of conscience and trust, and not like a purchase to a man's own use.

Plow. f. 185.

Like law is, where the debtor makes the debtee his executor; 12 H. 4. f. 21. the debt shall be considered in the assets, notwithstanding it be a thing in action.

So if I have a rent charge, and grant it upon condition; Plow. f. 133 b. now, though the condition be broken, the grantee's estate is not defeated till I have made my claim: but if after any such grant my father purchase the land, and it descend to me; now, if the condition be broken, the rent ceaseth without claim. But if I had purchased the land myself, then I had extincted mine own condition, because I had disabled myself to make my claim. And yet a condition collateral is not sus- [35 H 6.] pended by taking back estate; as if I make a feoffment in fee, upon condition that I. S. shall marry my daughter, and take a lease for life from my feoffee; if the feoffee break the condition I may claim to hold in by my fee-simple: but the case of the charge is otherwise; for if I have a rent charge issuing out of twenty acres, and grant that rent over upon condition, and purchase but one acre, the whole condition is extinct, and the possibility of the rent by the condition as fully destroyed as if the rent had been in me in esse.

Grant 91.

So if the King grant to me the wardship of the heir of I. S. Fitz. Tit. when it falleth; because an action of covenant lieth not against the King, I shall have the thing itself in interest. But if I let

VOL. VII.

The rest of this paragraph is omitted in the Camb. MS.

2 Omitted in Camb. MS.

A A

[9 Ed. 2.]

Dy. f. 48. pl. 17.

See 7 Rep. 8 a.

land to I. S. rendering a rent, with condition of re-entry, and I. S. be attainted, whereby the lease comes to the King; now my demand upon the land is gone which should give me benefit of re-entry, and yet I shall not have it reduced without demand: and the reason of difference is, because my condition in this case is not taken away in right, but only suspended by the privilege of the person: for if the King grant the lease over, the condition is revived as it was.

So if my tenant for life grant his estate to the King; now if I will grant my reversion over, the King is not compellable to atturn; therefore it shall pass by grant by deed without atturnment.

So if my tenant for life be, and I grant my reversion pur autre vie, and the grantee die living cestui que vie; now the privity between tenant for life and me is not restored, and I have no tenant in esse to atturn; therefore I may pass my reversion without atturnment.

So if I have a nomination to a church, and another hath the presentation, and the presentation comes to the King; now because the King cannot be attendant, my nomination is turned to an absolute patronage.

So if a man be seised of an advowson, and take a wife, and after title of dower given he join in impropriating the church, and dieth; now because the feme cannot have the third turn because of the perpetual incumbency, she shall have all the turns during her life: for it shall not be disimpropriated to the benefit of the heir contrary to the grant of tenant in feesimple.

But if a man grant the third presentment to I. S. and his heirs, and impropriate the advowson; now the grantee is without remedy, for he took his grant subject to that mischief at the first and, therefore it was his laches, and therefore not like the case of the dower. And this grant of the third avoidance is not like tertia pars advocationis, or medietas advocationis, upon a tenancy in common of the advowson: for if two tenants in common be, and an usurpation be had against them, and the usurper do impropriate, and one of the tenants in common do release, and the other bring his writ of right de medietate advocationis, and recover; now I take the law to be that, because tenants in common ought to join in presentments,

This explanation is omitted in Camb. MS.: as is the whole of the next case.