Billeder på siden
PDF
ePub

upon 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.

So if upon my avowry for services my Dy. f. 5. pl. 1. tenant disclaim, where I may have a writ of right as upon disclaimer; if the land after descend to me, I shall never be remitted.

REGULA X.1

Verba generalia restringuntur ad habilitatem rei vel persona.

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 Perk. pl. 108

1 Omitted in Camb. MS.

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. 14 H. 8. f. 2. So if I grant to a man omnes arbores meas crescentes supra terras meas in D. he shall not have apple-trees nor other fruit-trees growing in my gardens or orchards, if there be any other trees upon my grounds.

pl. 1.

41 Ed. 3. f. 6.

So if I grant to I. S. an annuity of ten 19. pl. 14. 3. 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.

Dy. f. 337. pl. 88.

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.

Stat. Westm. 1. cap. 4.

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 his claim by the space of one year, doth not extend to fresh vict

uals 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.

but if an attainted
petty treason, for
For1 I
kill his f. 245.

To explain this rule: Hares est nomen juris, filius est nomen naturae; 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 the a stranger the 5 H. 6. f. 57, eldest son shall not have appeal, because the 58. appeal is given to the heir; for the youngest sons who are equal in blood shall not have it: person be killed by his son, this is that the privity of a son remaineth. admit the law to be that if the son father or mother it 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.

Lamb. Jus.

So if land descend to the eldest son of a person attainted from an ancestor of the mother held in knight's 1 This paragraph is not in Camb. MS.

service, the guardian shall enter, and oust the father ; because the law giveth the father that prerogative in F. N. Br. fo. respect he is his son and heir; for of a daugh147. L. O. R. ter 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.

Bro. Tit.

So1 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: Adm. pl. 47. 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 can1 This and the two following cases are omitted in Camb. MS.

not 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.

[Register, fol.

Query, Whether, if the eldest son be at- Fitz. N. B. tainted and pardoned, the lord shall have aid f. 82. of his tenants to make him knight? And it 8.] 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 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 Fitz. N. B. two and the heirs of one of them, and an usurpation be had, they both shall join in a writ of

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

« ForrigeFortsæt »