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be unpunished, "quia salus populi suprema lex;" and "salus populi" is contained in the repressing offences by punishment.

„. »r T, Therefore if an advowson be granted

Fiu. N. B. 30. , . , ?,

to two, and the heirs of 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 should be deprived wholly of remedy, and this wrong unpunished, he shall join his companion with him, notwithstanding the feebleness of his estate. 46 Ed 3 21 ^ut *' ^an('s l*e given to two, and the heirs of one of them, and they lease in a praecipe 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.

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

So if two coparceners be, and they 22Hvm! lease the land, and one of them die, and hath issue, and the lessee commit waste, 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, quam quod nocet."

So if a man recovers by erroneous F° descent 16. judgment, and hath issue two daughters, and one of them is attainted, the writ of error shall be brought against both parceners, notwithstanding the privity fail in the one.

Also it is a positive ground, that the accessary in felony cannot be proceeded with, until the principal be tried; yet if a man upon subtlety or malice set a madman by some device upon another to kill him, and he doth so; now forasmuch as the madman is excused because he can have no will nor malice, the law accounteth the inciter as principal, though he be absent, rather than the crime shall go unpunished.

So it is a ground in the law, that the 439. Ed. 4 M. appeal of murder goeth not to the heir h^b^fofoo wnere ,ne party murdered hath a wife, nor to the younger brother where there is an elder; yet if the wife murder her husband, because she is the party offender, the appeal leaps over to the heir; and so if the son and heir murder his father, it goeth to the second brother.

But if the rule be one of the higher sort of maxims

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that are regultc rationales, and not positiva?, then the law will rather endure a particular offence to escape without punishment, than violate such a rule.

As it is a rule that penal statutes shall not be taken by equity, and the Ca£ rJJ ^{ statute of 1 Ed. VI. enacts that those that are attainted for stealing of horses shall not have their clergy, the judges conceived, that this did not extend to him that stole but one horse, and therefore procured a new act for it plow ^ LjtL 2 Ed. VI. cap. 33. And they had cap. 46 Ed. a reason for it, as I take the law; for it is not like the case upon the statute of Glocest. that gives an action of waste against him that holds "pro termino vita? vel annorum." It is true, if a man hold but for a year he is within the statute; for it is to be noted, that penal statutes are taken strictly and literally only in the point of defining and setting down the fact and the punishment, and in those clauses that concern them; and not generally in words that are but circumstances and conveyances in putting of the case: and so the diversity; for if the law be, that for such an offence a man shall lose his right hand, and the offender had his right hand cut off in the wars before, he shall not lose his left hand, but the crime shall rather pass unpunished which the law assigned, than the law shall be extended; but if the statute of 1 Ed. VI. had been, that he that should steal a horse should be ousted of his clergy, then there had been no question at all, but if a man had stolen more horses than one, he had been within the statute, "quia omne majus continet in se minus."

REGULA XIII.

Aon accipi debent verba in demonvlrationem falsom, qua? competunt in limitalionem veram.

Though falsity of addition or demonstration doth no hurt where you give a thing a proper name, yet nevertheless if it stand doubtful upon the words, whether they import a false reference and demonstration, or whether they be words of restraint that limit the generality of the former name, the law will never intend error or falsehood.

And therefore if the parish of Hurst doextendinto the countiesof Wiltshire over 291.33 and Berkshire, and I grant my close g*^?^ called Callis, situate and lying in the parish of Hurst in the county of Wiltshire, and the truth is, that the whole close lieth in the county of Berkshire; yet the law is, that it passeth well enough, because there is a certainty sufficient in that I have given it a proper name which the false reference doth not destroy, and not upon the reason that these words, " in the county of Wiltshire," shall be taken to go to the parish only, and so to be true in some sort, and not to the close, and so to be false: For if I had granted " omnes terras meas in parochia de Hurst in com. Wiltshire," and I had no lands in Wiltshire but in Berkshire, nothing had past.

But in the principal case, if the close tE(l 4 T called Callis had extended part into 21 Ed. a la Wiltshire and part into Berkshire,

then only that part had passed which lay in Wiltshire.

So if I grant "omnes et singulas terras meas in tenura I. D. quas perquisivi de I. N. in indentura dimissionis fact' I. B. specificat." If 1 have land wherein some of these references are true, and the rest false, and no land w herein they are all true, nothing passeth: as if I have land in the tenure of I. D. and purchased of I. X. but not specified in the indenture to I. B. or if I have land which I purchased of I. N. and specified in the indenture of demise to I. B. and not in the tenure of I. D.

But if I have some land wherein all these demonstrations are true, and some wherein part of them are true and part false, then shall they be intended words of true limitation to pass only those lands wherein all these circumstances are true.

REGULA XIV.

Licet dispositiode interes.se futurosit inutilis,tamen fieri pote.it declaratio pnecedens qua sortiatur effectum interveniente novo acta.

The law dolh not allow of grants except there be n foundation of an interest in the grantor; for the law that will not accept of grants of titles, or of things in action which are imperfect interests, much less will it allow a man to grant or encumber that which is no interest at all, but merely future.

But of declarations precedent before any interest vested the law doth allow, but with this difference, so that there be some new act or conveyance to give life and vigour to the declaration precedent.

Now the best rule of distinction between grants and declarations is, that grants are never countermandable, not in respect of the nature of the conveyance on the instrument, though sometimes in respect of the interest granted they are, whereas declarations are evermore couptermandable in their natures.

And therefore if I grant unto you, that if you enter into obligation to me of 100/. and MKIi«Jt«H.a „fter ,j0 procure me sucn a lense, that

then the same obligation to be void, and you enter into such obligation unto me, and afterwards do procure such a lease, yet the obligation is simple, because the defeisance was made out of that which was not.

So if I grant unto you a rent charge out of white acre, and that't shall be lawful for you to distrain in all my other lands whereof I am now seised, and which 1 shall hereafter purchase; although this be but a liberty of distress, and no rent save only out of white acre, yet as to the lands afterwards to be purchased the clause is void.

So if a reversion be granted to I. S. ^•iiklii6 an^ a stranger by deed do grant

to I. S. that if he purchase the particular estate, he doth atturne to his grantee, this is a void atturnement, notwithstanding he doth afterwards purchase the particular estate. . 13, uEHi But °^ declarations the law is con30, Ij.K"2- trary; as if the disseisee make a charter of feoffment to I. S. and a letter of attor

27 Ed 3.

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ney to enter and make livery and seisin, and deliver the deed of feoffment, and afterwards livery and seisin is made accordingly, this is a good feoffment; and yet he had nothing other than in right at the time of the delivery of the charter; but because a deed of feoffment is but matter of declaration and evidence, and there is a new act which is the livery subsequent, therefore it is a\V good in law.

So if a man make a feoffment in fee to I. S. upon condition to enfeoff I. N. within certain days, and there are deeds made both of the first feoffment and the second, and letters of attorney accordingly, and both these deeds of feoffment and letters of attorney are delivered at a time, so that the second deed of feoffment and letter of attorney are delivered when the first feoffee hath nothing in the land; and yet if both liveries be made accordingly, all is good.

So if I covenant with I. S. by indenture, that before such a day I will purchase the manor of D. and before the same day I will levy a fine of the same land, and that the same fine shall be to certain uses which I express in the same indenture; this indenture to lead uses being but matter of declaration, and countermandable at my pleasure, will suffice, though the land be purchased after; because there is a new act to be done, namely, the fine.

But if there were no new act, then

,. ... • - - . , 2.J l'.hz. 37 Ljiz.

otherwise it is; as if I covenant with my son in consideration of natural affection, to stand seised to his use of the lands which I shall afterwards purchase, and I do afterwards purchase, yet the use is void: and the reason is, because there is no act, nor transmutation of possession following to perfect this inception; for the use must be limited by the feoffor, and not by the feoffee, and he had nothing at the time of the covenant.

So if I devise the manor of D. by special name, of which at that time I am not seised, and after I purchase it, except I make some new publication of my will, this devise is void; and the reason is, because that my death, which is the consummation of my will, is the act of God, and not my act, and therefore no such new act as the law requireth.

But if I grant unto I. S. authority by my deed to demise for years the land whereof I am now seised, or hereafter shall be seised; and after I purchase lands, and I. S. my attorney doth demise them: this is a good demise, because the demise of my attorney is a new act, and all one with a demise by myself.

But if I mortgage land, and after _ covenant with I. S. in consideration of money which I receive of him, that after I have entered for the condition broken, I will stand seised to the use of the same I. S. and I enter, and this deed is enrolled, and all within the six months, yet nothing passeth, because the enrolment is no new act, but a perfective ceremony of the first deed of bargain and sale; and the law is more strong in that case, because of the vehement relation which the enrolment hath to the time of the bargain and sale, | at what time he had nothing but a naked condition. So if two joint-tenants be, and one 6 . a Br. oj them bargain and sell the whole land, and before the enrolment his companion dieth, nothing passeth of the moiety accrued unto him by survivor.

REGULA XV.

In criminalibus svfficit generalis malitia intentionis cum facto parts gradut.

All crimes have their conception in a corrupt intent, and have their consummation and issuing in some particular fact; which though it be not the fact at the which the intention of the malefactor levelled, yet the law giveth him no advantage of the error, if another particular ensue of as high a nature. 18 Elii San- Therefore if an impoisoned apple be derecase, PL laid in a place to impoison I. S. and I. com. 474. cometh by chance and eateth it, this

is murder in the principal that is actor, and yet the malice in individuo was not against I. D.

So if a thief find a door open, and Cr to 30"*' come in by night and rob an house, and be taken with the mainour, and breaketh a door to escape, this is burglary; yet the breaking of the door was without any felonious intent, but it is one entire act.

So if a caliver be discharged with a murderous intent at I. S. and the piece break and striketh into the eye of him that dischargeth it, and killeth him, he is felo de se, and yet his intention was not to hurt himself: for felonia de se and murder are crimina parts gradus. For if a man persuade another to kill himself, and be present when he doth so, he is a murderer.

But query, if I. S. lay impoisoned Cr l8,Pee' ^ru'tr some other stranger his enemy, and his father or master come and eat it, whether this be petty treason, because it is not altogether crimen paris gradus .*

REGULA XVI.

Mandata licita accipiunt slriclam interpretationem, sed illiciia latam et extensivem.

In the committing of lawful authority to another, a man may limit it as strictly as it pleaseth him, and if the party authorized do transgress his authority, though it be but in circumstance expressed, it shall be void in the whole act.

But when a man is author and mover to another to commit an unlawful act, then he shall not excuse himself by circumstances not pursued. 10 H. 7 19 is Therefore if I make a letter of atIa 16 kl. Dy! tomey to I. S. to deliver livery and seisin in the capital messuage, and he doth it in another place of the land; or between the hours of two or three, and he doth it after or before; or if I make the charter of feoffment to I. D. and I. B. and express the seisin to be delivered

16 El Dy 337 to an<^ my at,orney deliver it to

n El Dy.°283* I. B. in all these cases the act of the

38 H ft. D R9

attorney, as to execute the estate, is void: but if I say generally to I. D. whom I mean

only to enfeoff, and my attorney make it to his attorney, it shall be intended, for it is a livery to him in law.

But on the other side, if a man command I. S. to rob I. D. on Shooters-hill, and he doth it on Gadshill; or to rob him such a day, and he doth it the next day; or to kill I. D. and he doth it not himself but procureth I. B. to do it; or to kill him by poison, and he killeth him by violence; in all these cases, although the fact be not performed in circumstance, yet he is accessary nevertheless.

But if it be to kill I. S. and he kill 1. D. mistaking him for I. S. then the acts are distant in substance, and he is not accessary.

And be it that the acts be of a differing degree and yet of a kind:

As if one bids I. S. to pilfer away such a thing out of a house, and precisely restrain him to do it some time when he is gotten in without breaking of the house, and yet he breaketh the house; yet he is accessary to the burglary; for a man cannot condition with an unlawful act, but he must at his peril take heed how he put himself into another man's hands.

But if a man bid one to rob I. S. as he goeth to Sturbridge-fair, and he rob derecase,47i him in his house, the variance seemeth to be of substance, and he is not accessary.

REGULA XVII.

De fide et officio judiciis non recipitur qucestio; sed de scientia, sive sit error juris site facti.

The law doth so much respect the certainty of judgments, and the credit and authority of judges, as it will not permit any error to be assigned that impeacheth them in their trust and office, and in wilful abuse of the same; but only in ignorance, and mistaking either of the law or of the case and matter in fact.

And therefore if I will assign for F.N.brfo.il. error, that whereas the verdict passed '" for me, the court received it contrary, and so gave judgment against me, this shall not be accepted.

So if I will allege for error, that whereas I. S. offered to plead a sum- Xss. 3. cient bar, the court refused it, and drove me from it, this error shall not be allowed.

But the greatest doubt is where the 2 M ^ lu court doth determine of the verity of the matter in fact; so that it is rather in point of trial than in point of judgment, whether it shall be examined in error.

As if an appeal of maim be brought, , Mgr R and the court, bv the assistance of the w Ass. M is. chirurgcons, do judge it to be a maim, '" whether the party grieved may bring a writ of error: and I hold the law to be he cannot.

So if one of the prothonotaries of „ „ . .

- i , f . . on. 4. 6.

the common pleas bring an assize of his office, and allege fees belonging to the same office in certainty, and issue to be taken upon these fees, this issue shall be tried by the judges by way of examination, and if they determine it for

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21 H. 7. 33.40. 22 Ass. 99.

the plaintiff, and he have judgment to 5 Mar.'Dy.'163. recover arrearages accordingly, the

defendant can bring no writ of error of this judgment, though the fees in truth be other.

So if a woman bring a writ of dower,

8 H 6 23

2 EL 285. by. ana" ,ne tenant plead her husband was 43 Asa. 26. alive, this shall be tried by proofs and not by jury, and upon judgment given on either side no error lies.

39 Ass 9 5 Ed. S° >f nul tM record be pleaded, *• * which is to be tried by the inspection of the record, and judgment he thereupon given, no error lies.

9H.7.1 So if in an assize the tenant saith, he 19 H. 6. 52. jg Ii counte de Dale, et nient nosme counte,'' in the writ, this shall be tried by the records of the chancery, and upon judgment given no error lieth.

22 Ass pi. 24. So if a felon demand his clergy, and 19 Ed. 4.6. rea(j wen nn(j distinctly, and the court who is judge thereof do put him from his clergy; wrongfully, error shall never be brought upon the attainder.

9 Ass. 8. F. N. So if upon judgment given upon con

Br. 21. fession or default, and the court do assess damages, the defendant shall never bring a writ of error, though the damages be outrageous.

And it seem8 in the case of maim, and some of the other cases, that the court may dismiss themselves of discussing the matter by examination, and put it to a jury, and then the party grieved shall have his attaint; and therefore that the court that doth deprive a man of his action, should be subject to an action; but that notwithstanding the law will not have, as it was said in the beginning, the judges called in question in the point of their office when they undertake to discuss the issue, and that is the true reason: for to say that the reason of these cases 41 Ass 29 should be, because trial by the court n H. 4. 41. should be peremptory as trial by cer7 H. 6. 37. tificate, as by the bishop in case of bastardy, or by the marshal of the king, &c. the cases are nothing like; for the reason of those cases of certificate is, because if the court should not give credit to the certificate, but should re-examine it, they have no other mean but to write again to the same lord bishop, or the same lord marshal, which were frivolous, because it is not to be presumed they would difTer from their own former certificate; whereas in these other cases of error the matter is drawn before a superior court, to re-examine the errors of an inferior court: and therefore the true reason is, as was said, that to examine again that which the court had tried were in substance to attaint the court.

And therefore this is a certain rule in errors, that error in law is ever of such matters as do apppear upon record; and error in fact is ever of such matters as are not crossed by the record; as to allege the death of the tenant at the time of the judgment given, nothing appeareth upon the record to the contrary.

So when any infant levies a fine, it appeareth not upon the record of the

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fine that he is an infant, therefore it is an error in fact, and shall be tried by inspection during nonage.

But if a writ of error be brought in the King's Bench of a fine levied by an infant, and the court by inspection and examination do affirm the fine, the infant, though it be during his infancy, shall never bring a writ of error in parliament upon this judgment; not but that error lies after error, 2 R 3 20 F but because it doth not appear upon N. Br. 21. the record that he is now of full age, 9 ^ 4'3' therefore it can be no error in fact. And therefore if a man will assign for error that fact, that whereas the judges gave judgment for him, the clerks entered it in the roll against him, this error shall not be allowed; and yet it doth not touch the judges but the clerks: but the reason is, if it be an error, it is an error in fact; and you shall never allege an error in fact contrary to the record.

REGULA XVIII. Persona conjuncta aquiparatur interesse proprio.

The law hath this respect of nature and conjunction of blood, as in divers cases it compareth and matcheth nearness of blood with consideration of profit and interest: yea, and in some cases allow-' eth of it more strongly.

Therefore if a man covenant, in consideration of blood, to stand seised to the use of his brother, or son, or near kinsman, an use is well raised by his covenant without transmutation of possession ; nevertheless it is true, that consideration of blood is naught to ground a personal contract upon; as if I contract with my son, that in consideration of blood I will give unto him such a sum of money, this is nudum pactum, and no assumpsit lieth upon it; for to subject me to an action, there needeth a consideration of benefit; but the use the law raiseth without suit or action; and besides, the law doth match real considerations with real agreements and covenants.

So if a suit be commenced against I9 E(1 4 s I4 me, my son, or brother, I may main- H. 6.6. 19 E. tain as well as he in remainder tor his 2. 22 H. 6.35. interest, or his lawyer for his fee; so if 21 H-6-I5-16my brother have a suit against my nephew or cousin, yet it is at my election to maintain the cause of my nephew or cousin, though the adverse party be nearer unto me in blood.

So in challenges of juries, challenge 22 H 6 5 of blood is as good as challenge within ajlH E<>- 14" distress, and it is not material how far off the kindred be, so the pedigree may be conveyed in certainty, whether it be of the half or whole blood.

So if a man menace me, that he will imprison or hurt in body my father, or Hd"* 75. 35 my child, except \ make unto him an {i'H%ljj "J; obligation, I shall avoid this duresse, H. 6. so. is as well as if the duresse had been to |dL 44jJ; ai mine own person: and yet if a man menace me, by the taking away or destruction of my goods, this is no good duresse to plead, and the reason is, because the law can make me no reparation of that loss, and so can it not of the other. r» fJ. e. 5i. 7 So if a man under the years of Ass H.2Perk* twenty-one, contract for the nursing of 4. D. cap. is. his lawful child, this contract is good, and shall not be avoided by infancy no more than if he had contracted for his own aliments or erudition.

REGULA XIX.

Non impedit clausula dei ogatoria, quo minus ab eadem potentate res dissolvantur, u quibus constiluuntur.

Acts which are in their nature revocable cannot by strength of words be fixed and perpetuated j yet men have put in use two means to bind themselves from changing or dissolving that which they have set down, whereof the one is clausula derogatoria, the other interposilio jurame?iti, whereof the former is only pertinent to the present purpose.

This clausula derogalorio is by the common practical term called clausula nan obstante, and is of two sorts, de prwterlio, el de futnro, the one weakening and disannulling any matter past to the contrary, the other any matter to come; and this latter is that only whereof we speak.

This clausula de non obstante de futuro, the law judgeth to be idle and of no force, because it doth deprive men of that which of all other things is most incident to human condition, and that is alteration or repentance.

And therefore if I make my will, and in the end thereof do add such like clause [Also my will is, that if I shall revoke this present will, or declare any new will, except the same shall be in writing, subscribed with the hands of two witnesses, that such revocation or new declaration shall be utterly void; and by these presents I do declare the same, not to be my will, but this my former will to stand, any such pretended will to the contrary notwithstanding] yet nevertheless this clause or any the like never so exactly penned, and although it do restrain the revocation but in circumstance and not altogether, is of no force or efficacy to fortify the former will against the second; but I may by parole without writing repeal the same will and make a new one.

So if there be a statute made that no ?? E« KdCa3. sheriff shall continue in his office above cap. <>. 2 H. 7. a year, and if any patent be made to the contrary, it shall be void; and if there be any clausula de non obstante contained in such patent to dispense with this present act, that such clause also shall be void; yet nevertheless a patent of the sheriff's office made by the king for term of life, with a non obstante, will be good in law contrary to such statute, which pretendeth to exclude non obstantes: and the reason is, because it is an inseparable prerogative of the crown to dispense with politic statutes, and of that kind; and then the derogatory clause hurteth not.

So if an act of parliament be made, wherein there is a clause contained that it shall not be lawful for the king, by authority of parliament, during the

space of seven years, to repeal and determine the same act, this is a void clause, and the same act may be repealed within the seven years; and yet if the parliament should enact in the nature of the ancient lex regia, that there should be no more parliaments held, but that the king should have the authority of the parliament; this act were good in law, " quia potestas suprema seipsuin dissolvere potest, ligare non potest:" for it is in the power of a man to kill a man, but it is not in his power to save him alive, and to restrain him from breathing or feeling; so it is in the power of a parliament to extinguish or transfer their own authority, but not, whilst the authority remains entire, to restrain the functions and exercises of the same authority.

So in 28 of K. H. VIII. chap. 17, there was a statute made, that all acts that passed in the minority of kings, reckoning the same under the years of twenty-four, might be annulled and revoked by their

letters patent when they came to the

i » .u- .1. c * . 14 El. Dy. 311

same years; but this act in the first of

K. Ed. VI. who was then between the years of ten and eleven, cap. 11. was repealed, and a new law surrogate in place thereof, wherein a more reasonable liberty is given; and wherein, though other laws are made revocable according to the provision of the former law with some new form prescribed, yet that very law of revocation, toge- Co. sax ther with pardons, is made irrevocable and perpetual, so that there is a direct contrariety and repugnancy between these two laws; for if the former stands, which maketh all later laws during the minority of kings revocable without exception of any law whatsoever, then that very law of repeal is concluded in the generality, and so itself made revocable: on the other side, that law making no doubt of the absolute repeal of the first law, though itself were made during minority, which was the very case of the former law in the new provision which it maketh, hath a precise exception, that the law of repeal shall not be repealed.

But the law is, that the first law by the impertinency of it was void " ab initio et ipso facto" without repeal, as if a law were made, that no new statute should be made during seven years, and the same statute be repealed within the seven years, if the first statute should be good, then no repeal could be made thereof within that time; for the law of repeal were a new law, and that were disabled by the former law; therefore it is void in itself, and the rule holds, " perpetua lex est, nullam legem humanam ac positivam perpetuam esse; et clausula qua? abrogationem excludit initio non valet."

Neither is the difference of the civil law so reasonable as colourable, for they distinguish and say that a derogatory clause is good to disable any later act, except you revoke the same clause before you proceed to establish any later disposition or declaration; for they say that "clausula derogatoria ad alias sequentes voluntates posita in testamento, viz. si testator dicat quod si contigerit cum faccre aliud testamentum non vnlt illnd valere, operatnr quod seqnens dispositio ab ilia clausula regulctur, et per conscquens quod sequens dispositio

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