20 H. 7. per Pol. 35 H. 6. Fitz. Barr. 162.

:

but if after any such grant my father Lit. pl. 352. purchase the land, and it descend to me, now if the condition be broken, the rent ceaseth without claim but if I had purchased the land myself, then I had extincted mine own condition, because I had disabled myself to make my claim: and yet a condition collateral is not suspended by taking back an estate; as if I make a feoffment in fee, upon condition that I. S. shall marry my daughter, and take a lease for life from my feoffee, if the feoffee break the condition I may claim to hold in by my feesimple: but the case of the charge is otherwise, for if I have a rent charge issuing out of twenty acres, and grant the rent over upon condition, and purchase but one acre, the whole condition is extinct, and the possibility of the rent, by reason of the condition, is as fully destroyed as if the rent had been in me in esse.

7 H. 6. 40.

But if I let land to I. S. rendering rent with condition of re-entry, and I. S. be attainted, whereby the lease cometh to the king, now my demand upon the land is gone, which should give me benefit of re-entry, and yet I shall not have it reduced without demand; and the reason of the difference is, because my condition in this case is not taken away in right, but suspended only by the privilege of the possession; for if the king grant the lease over, the condition is revived as it

was.

Also if my tenant for life grant his estate to the queen, now if I will grant my reversion, the queen is not compellable to atturn; therefore it shall pass by grant by deed without atturnement.

9 Ed. 2. Fitz.

18.

So if my tenant for life be, and I Atturnments grant my reversion pur autre vie, and the grantee die, living cestuy que vie, now the privity between tenant for life and me is not restored, and I have no tenant in esse to atturn; therefore I may pass my reversion without atturnment.

So if I have a nomination to a church, and another hath the presentation, and the presentation comes to the king, now because the king cannot be attendant, my nomination is turned to an absolute patronage.

So if a man be seised of an advow6 Ed. 6. Dy. 92. son, and take a wife, and after title of dower given he join in impropriating the church and dieth; now because the feme cannot have the third turn because of the perpetual incumbency, she shall have all the turns during her life; for it shall not be disimpropriated to the benefit of the heir contrary to the grant of tenant in fee-simple.

But if a man grant the third presentment to I. S. and his heirs, and impropriate the advowson, now the grantee is without remedy, for he took his grant subject to that mischief at the first; and therefore it was his laches, and therefore not like the case of

the dower: and this grant of the third avoidance is not like tertia pars advocationis, or medietas advocationis upon a tenancy in common of the advowson: for if two tenants in common be, and an usurpation be had against them, and the usurper do impropriate, and one of the tenants in common do release, and the other bring his writ of right de medietate advocationis and recover: now I take the law to be, that because tenants in common ought to join in presentments, which cannot now be, he shall have the whole patronage: for neither can there be an apportionment that he should present all the turns, and his incumbent to have but a moiety of the profits, nor yet the act of impropriation shall not be defeated. But as if two tenants in common be of a ward, and they join in a writ of right 45 Ed. 3. 10. of ward, and one release, the other shall recover the entire ward, because it cannot be dissevered so shall it be in the other case, though it be of inheritance, and though he bring his action alone.

Also if a disseisor be disseised, and the mesne disseisee release to the second disseisor upon condition, and a descent be cast, and the condition broken; now the mean disseisor, whose right is revived, shall enter notwithstanding this descent, because his right was taken away by the act of a stranger.

41 Ed. 3. 10.

But if I devise land by the statute of 32 H. VIII. and the heir of the divisor enters and makes a feoffment in fee, and feoffee dieth seised, this descent binds, and there shall not be a perpetual liberty of entry, upon the reason that he never had seisin whereupon he might ground his action, but he is at 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, 25 H. 8. Dy. 1. 7. my 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.

Verba generalia restringuntur ad habilitatem rei vel personam.

It is a rule that the king's grant 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; but yet with this exception, that they shall never be taken to an impertinent or 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 | Perk. pl. 108. terris meis" in D. if 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. 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. So if I grant to I. S. an annuity of 10. 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.

41 Ed. 3. 6. et 19.

So if I do let a tenement to I. S. near my dwelling-house in a borough, provided that he shall not erect nor 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.

Dyer.

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 16 Eliz. 337. 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 it had been, if it had been to say a mass in another church than his own.

So the statute of wrecks, that willeth that the goods wrecked where any live domestical creature remains in a 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 victuals 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.

35 H. 6, 57, 58.

21 Ed. 3. 17.

REGULA XI.

Jura sanguinis nullo jure civili dirimi possunt. They be the very words of the civil law, which cannot be amended, to explain this rule, "Filius est nomen naturæ, hæres est nomen juris:" therefore corruption of blood taketh away the privity of the one, that is, of the heir, but not of the other, that is, of the son; therefore if a man be attainted and be murdered by a stranger, the eldest son shall not have appeal, because the appeal is given to the heir, for the youngest sons who are equal in blood shall not have it; but if an attainted person be killed by his son, this is petty treason, because the privity of a son remaineth; for I admit the law to be, that if the son kill 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

Lamb. Jus. p. 293. Fitz. crown. 447.

add, because some have sought to weaken the law in that point.

F. N. Br. fo.

So if land descend to the eldest son of a person attainted from an ancestor of the mother held in knight's service, the guardian shall enter, and oust the father, because the law giveth the father that prerogative in respect he is his son and heir; for of a daughter or of a special 143. De Droit. 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 the 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 corrupt. So by the statute of 21 H. VIII. the ordinary ought to commit administration of his goods that was attainted and purchased his charter of pardon, to his children, though born before the pardon, for it is no question of inheritance; for if one brother of the half blood die, the administration ought to be committed to his other brother of the half blood, if there be no nearer by the father.

5 Ed. 6. Adm. 47.

So if the uncle by the mother be 33 H. 6. 55. attainted, 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.

5 Ed. 4. 50.

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 although 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 recompence is understood for the stain of his blood, which cannot 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 his attainder; for the lord hath them jure naturæ but as the increase of a flock.

Therefore if an advowson be granted

Fitz. 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.

But if lands be given to two, and the

46 Ed. 3. 21. heirs of one of them, and they lease in a præcipe 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

27 H. 8. 13. join in a lease for years, and the lessee commit waste, they shall join in punishing the waste, and locus vastatus 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.

20 Ed. 2 Fitz.

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

33 Eliz. 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.

Fitz. Corone

28. 6. Stamf. lib. 2. fol. 60.

So it is a ground in the law, that the 459. Ed. 4. M. appeal of murder goeth not to the heir where the 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

31.

2. fol. 125.

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. 467. Litt. 2 Ed. VI. cap. 33. And they had cap. 46 Ed. 3. 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 vitæ 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.

Non accipi debent verba in demonstrationem falsam, quæ competunt in limitationem 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.

12 Eliz. 2.

Dyer, 291. 23
Eliz. Dy. 376.

7 Ed. 6. Dy. 56.

And therefore if the parish of Hurst do extend into the counties of Wiltshire and Berkshire, and I grant my close 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 9 Ed. 4. 7. called Callis had extended part into 21 Ed. 3. 18. 18 Eliz. 29 Reg. Wiltshire and part into Berkshire,

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 I have land wherein some of these references are true, and the rest false, and no land wherein they are all true, nothing passeth: as if I have land in the tenure of I. D. and purchased of I. N. 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 dispositio de interesse futuro sit inutilis, tamen fieri potest declaratio præcedens que sortiatur effectum interveniente novo actu.

The law doth not allow of grants except there be a 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 countermandable in their natures.

And therefore if I grant unto you, that if you enter into obligation to me of 1007, and 20 Eliz. 19 H. 6. after do procure me such a lease, that 62. 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.

27 Ed. 3.

So if I grant unto you a rent charge out of white acre, and that it shall be lawful for you to distrain in all my other lands whereof I am now seised, and which I 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. and I. D. 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.

29 Ed. 3. 6. 24 Eliz.

13, 14 Eliz. 20, 21 Eliz. 25 Eliz.

VOL. I.

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 good in law.

M. 38 et 39 Eliz.

36 Eliz.

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 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.

25 Eliz. 37 Eliz.

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.

521 Eliz.

20

6 Ed. 6. Br.

survivor.

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.

Cr. J. peace,

fo. 30.

So if a thief find a door open, and 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 paris gradus. For if a man persuade another to kill himself, and be present when he doth so, he is a murderer.

Cr. J. peace, 18, 19.

But query, if I. S. lay impoisoned fruit for 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.

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.

10 Eliz. in Sanders case, 475.

But if a man bid one to rob I. S. as he goeth to Sturbridge-fair, and he rob 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 quæstio; sed de scientia, sive sit error juris sive 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.

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 11 El Dy 283. I. B. in all these cases the act of the 38 H. 8. D. 62. attorney, as to execute the estate, is void but if I say generally to I. D. whom I mean

16 El. Dy. 337.

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