Com. Flowd. Cr. Just. So if I devise the manor of D. by | se, and murder are crimina paris gradus. For if Rigden's case. special name, of which at that time I a man persuade another to kill himself, and be am not seised, and after I purchase it, except I present when he doth so, he is a murderer. 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 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 the 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 cove21 Eliz. nant 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 away, because this 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. 6 Ed. 6. Br. So if two joint tenants be, and one of 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. 18, 19. But quære, if I. S. lay impoisoned fruit for some other stranger his enemy, peace, fol. and his father or mother come and eat it, whether this be petty treason, because it is not altogether crimen paris gradus. REGULA XVI. Mandata licita recipiunt strictam interpretationem, sed illicita latam et extensam. IN 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 monitor to another to commit an unlawful act, then he shall not excuse himself by circumstances not pursued. Therefore if I make a letter of attorney 10 H. 7. 19. 16 El. Dy. 337. to I. S. to deliver livery and seisin in 15, 16. 38 H. S. 68. But on the other side, if a man com- 18 El. Sander's In criminalibus sufficit generalis malitia intentionis mand I. S. to rob I. D. on Shooters- case, com. 175. 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 which the intention of the malefactor levelled, yet the law giveth him no advantage of that error, if another particular ensue of as high a nature. 18 Eliz. Sander's case. com. 474. Therefore if an impoisoned apple be laid in a place to poison I. S. and I. 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. So if a thief find the door open, and Cr. J. Peace, 30. come in by night and rob a house, and be taken with the manner, and break 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 strike 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 Cave. hill, and he doth it on Gad's-hill; or to rob him such a day, and he doth it not himself but procureth I. B. to do it; or to kill him by poison, and he doth it by violence; in all these cases, notwithstanding the fact be not executed, yet he is accessory nevertheless. Ibidem. But if it be to kill I. S. and he killeth I. D. mistaking him for I. S. then the acts are distant in substance, and he is not accessory. And be it that the facts be of differing degrees, and yet of a kind. 'As if a man bid I. S. to pilfer away such things out of a house, and precisely restrain him to do it sometimes when he is gotten in without breaking of the house, and yet he breaketh the house; yet he is accessory to the burglary; for a man cannot condition with an unlawful act, but he must at his peril take heed how he putteth himself into another man's hands. 8 H. 4. 3. So if one of the prothonotaries of the Common Pleas bring an assize of his office, and allege fees belonging to the same office 1 Mar. Dy. 89, in certainty, and issue is taken upon 5 Mar. Dy. 163. these fees, this issue shall be tried by the judges by way of examination, and if they determine it for the plaintiff, and he have judgment to recover arrearages accordingly, the defendant can bring no writ of error of this judgment, though the fees in truth be other. 21 Ass. 24. 7 H. 6. 37. And it seemeth in the case of maim, and some 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 it seemeth 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 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 certi- 1.4.41. ficate, (as by the bishop in case of bastardy, or by the marshal of the king, &c.) the cases are nothing alike; 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 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, 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 error, that error in law is ever of such matters as were not crossed by the record; as to allege the death of the tenant at the time of the judgment given, nothing appeareth upon record to the contrary. So when the infant levies a fine, it appeareth not upon the record that he is an infant, therefore it is an error in fact, and shall be tried by inspection during nonage. F. N. Br. 21. 2 R. 3. 20. 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 doth affirm the fine, the infant, though it be during his infancy, shall never bring a writ of error in the Parliament upon this judgment; not but that error lies after error, but because it doth now appear upon the record that he is now of full age, 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. F. N. Br. 21. 9 Ed. 4. 3. Persona conjuncta æquiparatur interesse proprio. THE law hath that respect of nature and conjunction of blood, as in divers cases it compareth 7 et 8 Eliz. and matcheth nearness of blood with considera- | This clausula derogatoria is by the common tion of profit and interest; yea, and in some cases practical term called clausula non obstante, de fualloweth of it more strongly. turo esse, the one weakening and disannulling any Therefore if a man covenant, in con-matter past to the contrary, the other any matter sideration of blood, to stand seised to to come; and this latter is that only whereof we the use of his brother, or son, or near kinsman, a speak. use is well raised of this covenant without trans- The clausula de non obstante de futuro, the law mutation of possession; nevertheless it is true, judgeth to be idle and of no force, because it doth that consideration of blood is not to ground a per-deprive men of that which of all other things is sonal contract upon; as if I contract with my son, most incident to human condition, and that is that in consideration of blood I will give unto him alteration or repentance. such a sum of money, this is a 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. Therefore if I make my will, and in the end thereof do add such like clause [Also my will is, 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. 28 Ed. 3. cap. 7. cap. 9. 2 H. 7. 6. So if there be a statute made that no sheriff shall continue in his office above 24 d. 3; 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, 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 such 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 seipsum dissolvere potest, ligare non potest; for as 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 ex ercises of the same authority. So in the 28 of K. H. VIII. chap. 17, there was 14 El. Dy. 313. 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 would no revocation at all be made, 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 contigenti, non potest. 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 patents when they came to the 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 P. Comm. 563. place thereof, wherein a more reasonable liberty was 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 between these two laws; for if the former stands, which maketh all latter laws during the minority of kings revocable without exception of any law | first parties have put it in the power of a third perwhatsoever, 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 the 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. IN acts that are fully executed and consummate, the law makes this difference, that if the son, or of a contingency, to give a perfection to their acts, then they have put it out of their own reach and liberty; 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, But the law is, that the first law by the imper- so the law permitteth them to dissolve it by an tinency of it was void ab initio et ipso facto with-express consent before that time, or without that out repeal, as if a law were made, and no new circumstance. statute should be made during seven years, and Therefore if two exchange land by deed, or the same statute be repealed within the seven without deed, and neither enter, they F. N. Br. 36. years, if the first statute should be good, then the may make a revocation or dissolution 13 H. 7. 13, 14. repeal could not be made thereof within that of the same exchange by mutual consent, so it be time; for the law of repeal were a new law, and by deed, but not by parole; for as much as the that were disabled by the former law; therefore making of an exchange needeth no deed, because it is void in itself, and the rule holds, perpetua lex it is to be perfected by entry, which is a ceremony est, nullam legem humanam ac positivam perpetuam | notorious in the nature of a livery; but it cannot esse; et clausula quæ abrogationem excludit initio | be dissolved but by deed, because it dischargeth non valet. that which is but title. 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 latter 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 ipsa clausula reguletur, et per consequens quod scquens dispositio duretur sine voluntate, et sic quod non sit attenden. dum. The sense is, that where a former will is made, and after a later will, the reason why, without an express revocation of the former will, it is by implication revoked, is because of the repugnancy between the disposition of the former and the later. But where there is such a derogatory clause, there can be gathered no such repugnancy: because it seemeth that the testator had a purpose VOL. III.-31 So if I contract with I. D. that if he lay me into my cellar three tuns of wine before F. 36 Eliz Mich. that I will bring into 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 lease for five years, yet this cannot inure by way of surrender: for a petty lease derived out of a greater cannot be surrendered back again, but inureth only by dissolution of contract; for a lease of land is but a contract executory from time to time of the profits of the land, to arise as a man may sell his corn or his tithe to spring or to be perceived for divers future years. X The same difference appeareth in nominations and elections; as if I 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. | 29 H. &. Dy. 12. he doth alter the disposition of law; for So if a man make a feoffment in fee to the use 19 H. 8. 11. 5 Ed. 4. 8. But if I make a feoffment in fee to the use of So in judicial acts the rule of the civil law holdeth sententia interlocutoria revocari potest, that | my last will and testament, thereby to declare an is, that an order may be revoked, but a judgment cannot; and the reason is, because there is title of execution or 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 presumptionem remotam vel causam ex post facto non fulcitur. Clausula vel dispositio inutilis are said when the act or the words do work or express no more than the law by intendment would have supplied; and therefore the doubling or iterating of that and no more, which the conceit of 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 emerging afterwards, which may induce an operation of those idle words. 32 H. 8. Goord 39. Ber. 2. M. And therefore if a man demise land at this day to his son and heir, this is a void devise, because the disposition of law did cast the same upon the heir by descent; and yet if it be knight's service land, and the heir within age, if he take by the devise, he shall have two parts of the profits to his own use, and the guardian shall have benefit but of the third; but if a man devise land to his two daughters, having no sons, then the devise is good, because estate tail and no greater estate, and after my 2 Ed. 3. 29. But if I make a feoffment in fee to the use of my right heirs, and the right heirs of I. 10 El. 274. S. this is a good use, because I have Dy. altered the disposition of law; neither is it void for a moiety, but both our right heirs when they come in being shall take by joint purchase; and he to whom the first falleth 30 E. 1 Fitz. shall take the whole, subject nevertheless to his companion's title, so it have not descended from the first heir to the heir of the heir: for a man cannot be joint-tenant claiming by purchase, and the other by descent, because they be several titles. Devise, 9. So if a man having land on the part of his |