6 Ed. 6. Br.

REGULA XV.

In criminalibus sufficit generalis malitia intentionis cum facto paris gradus.

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. Therefore if an impoisoned apple be 18 Eliz. San ders case, Pl. laid in a place to impoison I. S. and I. com. 474. D. 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.

REGULA XVI.

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.

7 H. 7. 4.

sed illicita 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. 15,

337.

Therefore if I make a letter of at16. 16 El. Dy. torney 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 to I. D. and my attorney deliver it to I. B. in all these cases the act of the attorney, as to execute the estate, is void but if I say generally to I. D. whom I mean

16 El. Dy. 337. 11 El Dy. 283.

38 H. 8. D. 62.

3 H. 6. Fitz. Ass. 3.

So if I will allege for error, that whereas I. S. offered to plead a sufficient 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. Dy. 114.

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.

1 Mar. B.

21 H. 7.40. 33.

As if an appeal of maim be brought, and the court, by the assistance of the 28 Ass. M. 15. chirurgeons, 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 8 H. 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

9 H. 7. 2.

So if in an assize the tenant saith, he 19 H. 6. 52. is "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. pl. 24. So if a felon demand his clergy, and 19 Ed. 4. 6. read well and distinctly, and the court who is judge thereof do put him from his clergy, wrongfully, error shall never be brought upon the attainder.

21 H. 7. 33. 40.

22 Ass. 99.

9 Ass. 8. F. N. So if upon judgment given upon conBr. 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 seems 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 should be, because trial by the court should be peremptory as trial by certificate, 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 differ 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.

41 Ass. 29. 11 H. 4. 41. 7 H. 6. 37.

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 Ed. 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 æquiparatur interesse proprio. The law hath this respect of nature and conjunctíon of blood, as in divers cases it compareth and matcheth nearness of blood with consideration of profit and interest: yea, and in some cases alloweth of it more strongly.

7 et 8 Eliz.

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.

19 Ed. 4. 5. 14 H. 6.6. 19 E.

4.33. 14 H. 7.

2. 22 H. 6. 35. 21 H. 6. 15. 16.

So if a suit be commenced against me, my son, or brother, I may maintain as well as he in remainder for his interest, or his lawyer for his fee; so if my 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.

21. El.

So in challenges of juries, challenge 22 H. 6. 5. of blood is as good as challenge within 2 H. 6. 14 et 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 my child, except I make unto him an obligation, I shall avoid this duresse, as well as if the duresse had been to 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 rea

Ed. 4. 13.

Ed. 4. 21. 2

39 H. 6. 51. 7 So if a man under the years of Ass. 14. Perk. twenty-one, contract for the nursing of 4. D. cap. 25. 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 derogatoria, quo minus ab eadem potestate res dissolvantur, à quibus constitu

untur.

Acts which are in their nature revocable cannot by strength of words be fixed and perpetuated; 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 interpositio juramenti, whereof the former is only pertinent to the present purpose.

This clausula derogatorio is by the common practical term called clausula non obstante, and is of two sorts, de prætertio, et de futuro, 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.

28 Ed, 3. cap. cap. 9. 2 H. 7.

7. 42 Ed. 3.

6.

So if there be a statute made that no

sheriff shall continue in his office above 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

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 14 El. Dy. 313

Pl. Co. 563.

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, together 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 quæ 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 eum facere aliud testamentum non vult illud valere, operatur quod sequens dispositio ab illa clausula reguletur, et per consequens quod sequens dispositio

But where there is such a derogatory clause, there can be gathered no such repugnancy: because it seemeth the testator had a purpose at the making | of the first will to make some show of a new will, which nevertheless his intention was should not take place but this was answered before; for if that clause were allowed to be good until a revocation, then could no revocation at all be made, and therefore it must needs be void by operation of law at first. Thus much of clausula derogatoria.

REGULA XX.

Actus inceptus, cujus perfectio pendet ex voluntate partium, revocari potest; si autem pendet ex voluntate tertiæ personæ, vel ex contingenti, revocari non potest.

In acts which are fully executed and consummate, the law makes this difference, that if the first parties have put it in the power of a third person, or of a contingency, to give a perfection to their acts, then they have put it out of their own reach and liberty; and therefore there is no reason they should revoke them but if the consummation depend upon the same consent, which was the inception, then the law accounteth it in vain to restrain them from revoking | of it; for as they may frustrate it by omission and non feisance, at a certain time, or in a certain sort or circumstance, so the law permitteth them to dissolve it by an express consent before that time, or without that circumstance.

F. N. Br. 36.

Therefore if two exchange land by 13 H. 7. 13, 14. deed, or without deed, and neither enter, this may make a revocation or dissolution of the same exchange by mutual consent, so it be by deed, but not by parole; for as much as the making of an exchange needeth no deed, because it is to be perfected by entry, which is a ceremony notorious in the nature of livery; but it cannot be dissolved but by deed, because it dischargeth that which is but title.

36 Eliz.

So if I contract with I. D. that if he lay me into my cellar three tuns of wine before Mich. that I will bring to his garner twenty quarters of wheat before Christmas, before either of these days the parties may by assent dissolve the contract; but after the first day there is a perfection given to the contract by action on the one side, and they may make cross releases by deed or parole, but never dissolve the contract; for there is a difference between dissolving the contract, and.release or surrender of the thing contracted for: as if lessee for twenty years make a lease for ten years, and after he take a new lease for five years, he is in only of his lease for five years, and yet this cannot inure by way of surrender: for a petty lease derived out of a greater cannot be surrendered back again, but it in

But to return from our digression on the other side, if I contract with you for cloth at such a price as I. S. shall name; there if I. S. refuse to name, the contract is void; but the parties cannot discharge it, because they have put it in the power of the third person to perfect.

11 H. 7. 19. 2 R. 2. F. at

turnment. 8.

So if I grant my reversion, though this be an imperfect act before atturnment; yet because the atturnment is the act of a stranger, this is not simply revocable, but by a policy or circumstance in law, as by levying a fine, or making a bargain and sale, or the like.

So if I present a clerk to the bishop, now can I not revoke this representation, because I have put it out of myself, that is, in the bishop, by admission, to perfect my act begun.

31 Ed. 1. Fitz.

Q. Imp. 185. 38 Ed. 3. 35.

14 Ed. 4. 2.

14 Ed. 4. 2.

The same difference appeareth in nominations and elections; as if I enfeoff I. S. upon condition to enfeoff such a one as I. D. shall name within a year, and I. D. name I. B. yet before the feoffment, and within the year, I. D. may countermand his nomination, and name again, because no interest passeth out of him. But if I enfeoff I. S. to the use of such a one as I. D. shall name within a year, then if I. D. name I. B. it is not revocable, because the use passeth presently by operation of law.

So in judicial acts the rule of the civil law holdeth, "sententia interlocutoria revocari potest, definitiva non potest;" that is, that an order may be revoked, but a judgment cannot; and the reason is, because there is a title of execution or of bar given presently unto the party upon judgment, and so it is out of the judge to revoke, in courts ordered by the common law.

REGULA XXI.

Clausula vel dispositio inutilis per præsumptionem vel causam remotam, ex post facto non fulcitur. "Clausula vel dispositio inutilis" are said, when the act or the words do work or express no more than law by intendment would have supplied; and therefore the doubling or iterating of that and no more, which the conceit of the law doth in a sort prevent and preoccupate, is reputed nugation, and is not supported and made of substance either by a foreign intendment of some purpose, in regard whereof it might be material, nor upon any cause or matter emerging afterwards, which may induce an operation of those idle words or acts.