29 Ass. pl.

20.

44 Ed. 3.

19.

cum libera garrena, excepting white acre, there the warren is not by implication reserved unto me either to be enjoyed or to be extinguished; but the lessee shall have the warren against me in white acre.

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.

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 26 Ass. pl. manor of Dale in fee, whereof I. S. holds by fealty and rent, and I grant the manor, excepting the rent of I. S. there the fealty shall pass to the grantee, and I shall have but a rent secke.

66.

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 leave it rent in fee-simple; but the words "heirs and all" are void, and leaves that 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.

45 Ed. 3. But if I give lands with my daughter in frank mar290. 24 R.riage, 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.

4 H. 6. 22.

66.

But if I give land in frank marriage, reserving to 26 Ass. pl 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, reddendo 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.

18.

So if I grant a rent to I. S. and his heirs out of my 46 E. 3. manor of 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 tenendo de capitalibus do- 2 Ed. 4. 5. minis per redditum viginti solidorum per fidelitatem: this limitation of tenure to the chief lord is void; but it shall not be good, as in the other case, to make a 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 ovelty.

32 H. 8.

So if I give land to I. S. and the heirs of his body, 21 Ed. 3. and for default of such issue quod tenementum præ-49. 31 et dictum revertatur ad I. N. yet these words of rever- Dyer 46. sion will carry a remainder to a stranger. But if I Plow. fo. let white acre to I. S. excepting ten shillings rent, 6. 34. 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, that when they encounter and cross one another in any case, that 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

37. 35 H.

21.

and rigor, doth not, as it were, his office, but in absence of other rules which are of some 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 foreign intendment, which the civilians utter thus: Verba generalia restringuntur ad habilitatem persona, vel ad aptitudinem rei.

14 Ass. pl. Therefore if a man grant to another, common intra metas et bundas villæ 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.

Lit. cap cond.

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.

10 Ed. 4. 1. So it is a rule, that the law will not intend a wrong, which the civilians utter thus: Ea est accipienda interpretatio,quæ vitio caret. And therefore if the executors of I. S. grant omnia bona et catalla sua, the goods which they have as executors, will not pass, because non constat whether it may not be a devastation, and so a wrong; and yet against the trespasser that taketh them out of their possession, 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, etc. because that it is the strongest against me; but on the other side, it shall not be intended four parts of four parts, that is whole of four quarters; and yet that were strongest of all, but then the words were idle and of none effect.

So it is a rule, Divinatio non interpretatio est, qua 3 H. 6. 20. omnino recedit a literu: and therefore if I have a free rent or 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' de reddit' prædict' et de omnibus terris et tenementis meis in Dale, with a clause of distress, although there be atturnement, 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 exceptionem in eodem sensu, and the word de, anglicè out of, may be taken in two senses, that is, either as a greater sum out of a less, 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 lesser 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 of land and tenements, namely, 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 without atturnement; because percipiend' de etc. may well be taken for parcella de etc. without violence to the words; but if it had been percipiend' de, I. S. without saying de redditibus prædict', 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, even the plea shall be strictly and strongly taken against him that pleads.

For ambiguity of words, if in a writ of entry upon 22H.6.43. disseisin, the tenant pleads jointenancy with I. S. of the gift and feoffment of I. D. judgment de briefe,

3 Ed. 6. Dy. 66.

26 H. 8.

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 re-entred, 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 alledged precisely that I. D. disseisivit.

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. L. plead, that before the escape, supposed at such a day anno superius in narratione specificato, the said I. D. and I. S. 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 hardliest 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 leave the intendment to be of that year in which the declaration supposeth that they were sheriffs; but that sufficeth not, but the year 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 replication, to avoid 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.