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plea. And so of several outlawries in a personal
And this seemeth to be more reasonable, than that generally an outlawry or an attainder should be no plea in a writ of error brought upon a diverse out7 H. 4. 1. 29. lawry or attainder, as 7 H. IV. and 7 H. VI. seem to hold. For that is a remedy
7. H. 6. f. 44. pl. 22.
too large for the mischief; for there is no reason, 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.
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 [87 Eliz.] error upon the recovery, (which he may do, because a fine executed barreth no titles that accrue de puisne temps 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, except 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 the heir after his death.
But if a man levy a fine where he hath nothing in the land, which inureth by way of conclusion only, and is executory against all purchases and new titles which
1 This last sentence and the whole of the following paragraph are omitted in the Camb. MS.
Fitz. Tit. Age,
shall grow to the conusor afterwards, and he purchase the land, and suffer a recovery to the conusee, and in both fine and recovery there is error; this fine is Janus bifrons, and will look forwards.to 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.1 To return to our first purpose: like law is it if tenant in tail of two acres make two several discontinuances to several persons for life rendering rent, and the issue after his death bringeth formedon of both, and in the 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. 2 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. But the former case standeth upon the particular reason before mentioned.
1 In lieu of the two preceding paragraphs the Camb. MS. has: "But if a man levy many fines of the same lands and there be an error in them all, yet he cannot bring error of any save the last: because by his own later fines he gave away his title of error to the former fines inclusive. But when a man is attainted, his writ of error to a former attainder is not given away, but only it remaineth a plea to his person while he liveth, and to the conveyance of the heir after his death."
2 This is omitted, to the end, in Camb. MS.
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 author of 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.
1 But this rule, as all others 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 examine it in grants; and then in pleadings.
The force of this rule is in three things: in ambiguity of words; in implication of matter; and in reducing and qualifying the exposition of such grants as were against the law, if they were taken according to their words.
2 R. 3. f. 18. pl. 46.
And, therefore, if I. S. submit himself to 21 II. 7. f. 29. arbitrement of all actions and suits between
1 Omitted in Camb. MS.
him and I. D. and I. N., it rests ambiguous whether this submission shall be intended collectivè of joint actions only, or distributive 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 arbitrement 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 collective only of joint actions : because in the other case large construction was hardest against him that speaks, and in this case strict construction is hardest.
1So if I grant ten pounds rent to baron 8 Ass. pl. 10. 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 abateinent 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 die, reddendo three pounds; this shall be taken contrary to the former case, to abridge my rent only to three pounds.
So if I demise omnes boscos meos in villa de 14 H. 8. f. 1. Dale for years; this passeth the soil: but if Dy. t. 9. I demise all my lands in Dale exceptis boscis; this extendeth to the trees only, and not to the soil.
1 The Camb. MS. omits this, and proceeds to give one example of cases of implication: "So in implications; if I. S. grant all his woods in such a close, it implies a liberty unto the grantee to come upon the ground and cut them down: but if I. S. lease the close excepting the woods, then himself shall have no such liberty, because he did not specially reserve it." And it omits the cases in the five following paragraphs.
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. f. 4, 5.
So if I have free warren in my own land, 32 H. 6. f. 24. and let my land for life, not mentioning the warren; yet the lessee, by implication, shall have the warren discharged and extinct during his lease: but if I let the land una cum libera garrena, 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.
29 Ass. pl. 20. So if I. S. hold of me by fealty and 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.
44 Ed. 3. f. 19. pl. 15.
Otherwise had it been if the seigniory 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 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,