which cannot now be, he shall have the whole patronage. For neither can there be an apportionment, that he should present all the turns and his incumbent but to have a moiety of the profits, nor yet the act of impropriation shall not be defeated: but as, if two tenants in common be of a ward, and they join 45 Ed. 3. f. 10. in a writ of right of ward, and one release, the other shall recover the entire ward, because it cannot be divided; so shall it be in the other case, though it be of inheritance, and though he bring his action alone.

Also if a disseisor be disseised, and the first disseisee release to the second disseisor upon condition, and a descent be cast, and the condition broken; now the mesne disseisor, whose right is revived, shall enter notwithstanding this descent, because his right was taken away by the act of a stranger.

1

But if I. S. devise land by the statute of 32 H. VIII. and the heir of the devisor enters and makes a feoffment in fee, and feoffee dieth seised; this descent bindeth, and there shall not be a perpetual liberty of entry upon the reason that he never had seisin whereupon he might ground his action; but he is at a mischief by his own laches. And the like law of the Queen's patentee: for I see no reasonable difference between them and him in the remainder, which is Littleton's

case.

But note, that the law by operation and matter in fact will never countervail and supply a title grounded upon a matter of record; and therefore if I be entitled unto a writ of error, and the land descend unto me, I shall never be remitted; no more shall I be unto an attaint, except I may also have a writ of right.

pl. 2.

So if upon my avowry for services my tenant disclaim, Dy. f. 5. pl. 1. where I may have a writ of right as upon disclaimer; if the

land after descend to me, I shall never be remitted.

In the Camb. MS. these cases of the devisee and patentee are introduced at the end of the Rule, with the introductory observation: "Note also, if it be not citra culpam suam, but that there be laches in the party, then the law useth no such indulgence to him." As to the point, see Co. Litt. 240 b., and Butler's note.

Perk. pl. 108.

14 H. 8. f. 2. pl. 1.

41 Ed. 3. f. 6. 19. pl. 14 3.

Dy. f. 337. pl. 38.

Stat. Westm.

I. cap. 4.

REGULA X.1

Verba generalia restringuntur ad habilitatem rei vel personæ.

It is a rule that the King's grants shall not be taken or construed to a special intent; it is not so with the grants of a common person, for they shall be extended as well to a foreign intent as to a common intent; yet with this exception, that they shall never be taken to an impertinent or a repugnant intent: for all words, whether they be in deeds or statutes or otherwise, if they be general and not express and precise, shall be restrained unto the fitness of the matter and the person.

As if I grant common in omnibus terris meis in D. and I have in D. both open grounds and several; it shall not be stretched to common in my several, much less in my garden or orchard.

So if I grant to a man omnes arbores meas crescentes supra terras meas in D. he shall not have apple-trees nor other fruittrees growing in my gardens or orchards, if there be any other trees upon my grounds.

So if I grant to I. S. an annuity of ten pounds a year pro consilio impenso et impendendo; if I. S. be a physician, it shall be understood of his counsel in physic; and if he be a lawyer, of his counsel in law.

So if I do let a tenement to I. S. near by my dwelling-house in a borough, provided that he shall not erect or use any shop in the same without my license, and afterwards I license him to erect a shop, and I. S. is then a milliner; he shall not, by virtue of these general words, erect a joiner's shop.

So the statute of chantries, that willeth all lands to be forfeited that were given or employed to a superstitious use, shall not be construed of the glebe lands of parsonages: nay farther, if lands be given to the parson and his successors of D. to say a mass in his church of D. this is out of the statute, because it shall be intended but as augmentation of his glebe: but otherwise had it been, if it had been to say a mass in another church than his

own.

So the statute of wrecks, that willeth that goods wrecked, where any live domestical creature remains in the vessel, shall be preserved and kept to the use of the owner that shall make

1 Omitted in Camb, MS.

his claim by the space of one year, doth not extend to fresh victuals or the like, which is impossible to keep without perishing or destroying it: for in these and the like cases general words may be taken, as was said, to a rare or foreign intent, but never to an unreasonable intent.

REGULA XI.

Jura sanguinis nullo jure civili dirimi possunt.

THEY be the very words of the civil law, which cannot be amended.

To explain this rule: Hares est nomen juris, filius est nomen naturæ ; therefore corruption of blood taketh away the privity of the one, that is of the heir, but not of other, that is of the son: therefore if a man be attainted and be murdered by a stranger 35 H. 6. f. 57, the eldest son shall not have appeal, because the appeal is given to the heir; for the youngest sons who are equal in blood shall not have it but if an attainted person be killed by his son, this is petty treason, for that the privity of a son remaineth. For1

58.

f. 245.

I admit the law to be that if the son kill his father or mother it Lamb. Jus. is petty treason, and that there remaineth in our laws so much of the ancient footsteps of potestas patria and natural obedience; which by the law of God is the very instance itself, and all other government and obedience is taken but by equity: which I add because some have sought to weaken the law in that point.

147. L. O. R.

So if land descend to the eldest son of a person attainted from an ancestor of the mother held in knight's service, the guardian shall enter, and oust the father; because the law giveth the father that prerogative in respect he is his son and heir; for of F. N. Br. fo. a daughter or a special heir in tail he shall not have it: but if the son be attainted, and the father covenant in consideration of natural love to stand seised of land to his use, this is good enough to raise an use; because the privity of natural affection remaineth.

So if a man be attainted, and have charter of pardon, and be returned of a jury between his son and I. S. the challenge remaineth so may he maintain any suit of his son, notwithstanding the blood be corrupted.

This paragraph is not in Camb. MS.

Bro. Tit.
Adm. pl. 47.

Fitz. N. B. f. 82.

87.]

So by the statute of 21 H. VIII. c. 5. the ordinary ought to commit the administration of his goods, that was attainted and purchased his charter of pardon, to his children though born before the pardon: for it is no question of inheritance; for if one brother of the half blood die, the administration ought to be committed to the other brother of the half blood, if there be no nearer by the father.

So if the uncle by the mother be attainted, and pardoned, and land descend from the father to the son within age held in socage, the uncle shall be guardian in socage: for that savoureth so little of the privity of heir, as the possibility to inherit shutteth out.

But if a feme tenant in tail assent to the ravisher, and have no issue, and her cousin is attainted, and pardoned, and purchaseth the reversion, he shall not enter for a forfeiture: for though the law giveth it not in point of inheritance, but only as a perquisite to any of the blood, so he be next in estate, yet the recompense is understood for the stain of his blood, which cannot be considered when it is once wholly corrupted before.

So if a villain be attainted, yet the lord shall have the issues of his villain born before or after the attainder; for the lord hath them jure naturæ but as the increase of a flock.

Query, Whether, if the eldest son be attainted and pardoned, Register, fol. the lord shall have aid of his tenants to make him knight? And it seemeth he shall; for the words of the writ are filium primogenitum, and not filium et hæredem; and the like writ lieth pur file marrier, who is no heir.

REGULA XII.

Receditur à placitis juris potius quàm injuriæ et delicta maneant impunita.

THE law hath many grounds and positive learnings, which are not of the maxims and conclusions of reason, but yet are learnings received, which the law hath set down and will not have called in question: these may be rather called placita juris than regulæ juris. With such maxims the law will dispense, rather

This and the two following cases are omitted in Camb. MS.

The Camb. MS. has: "not of the highest rules of reason, which are legum leges, such as we have here collected."

than crimes and wrongs should be unpunished; quia salus populi suprema lex, and salus populi is contained in the repressing offences by punishment.

30. B. F.

Therefore if an advowson be granted to two and the heirs of Fitz. N. B. one of them, and an usurpation be had, they both shall join in a writ of right of advowson; and yet it is a ground in law, that a writ of right lieth of no less estate than of a fee-simple: but because the tenant for life hath no other several action in the law given him; and also that the jointure is not broken, and so the tenant in fee-simple cannot bring his writ of right alone; therefore rather than he shall be deprived wholly of remedy, and this wrong unpunished, he shall join his companion with him, notwithstanding the feebleness of his estate.

But if lands be given to two and to the heirs of one of them, and they lease in a præcipe by default; now they shall not join in a writ of right, because the tenant for life hath a several action, namely, a Quod ei deforciat, in which respect the jointure is broken.

6 Ed. 3. f. 21.

pl. 36.

So if tenant for life and his lessor join in a lease for years, 27 H. 8. f. 13. and the lessee commit waste, they shall join in punishing this waste, and locus vastatus shall go to the tenant for life and the damages to him in the reversion; and yet an action of waste lieth not for tenant for life: but because he in the reversion cannot have it alone, because of the mesne estate for life, therefore rather than the waste shall be unpunished, they shall join.

So if two coparceners be, and they lease the land, and the lessee commit waste, and one of them die, and hath issue; the aunt and the issue shall join in punishing this waste, and the issue shall recover the moiety of the place wasted, and the aunt the other moiety and the entire damages: and yet actio injuriarum moritur cum persona; but in favorabilibus magis attenditur quod prodest, quàm quod nocet.

Fitz. Tit. De

So if a man recovers by erroneous judgment, and hath issue 20 Ed. 2. two daughters, and one of them is attainted; the writ of error scent, pl. 16. shall be brought against both parceners notwithstanding the privity fail in the one.

Also it is a positive ground, that the accessory in felony [33 Eliz.] cannot be proceeded against until the principal be tried; yet if

This and the following case are omitted in the Camb. MS.

2 "I have transposed these words, which in all the editions and MSS. I have seen stand after “and hath issue;" the sense and the authorities require the change. Fitz. N. B. fo. 60. R.