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Bro. Tit.
Adm. pl. 47.

Fitz. N. B.

f. 82.

87.3

1

So1 by the statute of 21 H. VIII. c. 5. the ordinary ought to commit the 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 the other brother of the half blood, if there be no nearer by the father.

So if the uncle by the mother be attainted, and 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.

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 though 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 recompense 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 the attainder; for the lord hath them jure naturæ but as the increase of a flock.

Query, Whether, if the eldest son be attainted and pardoned, Register, fol. the lord shall have aid of his tenants to make him knight? And it seemeth he shall; for the words of the writ are filium primogenitum, and not filium et hæredem; and the like writ lieth pur file marrier, who is no heir.

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REGULA XII.

Receditur à placitis juris potius quàm injuriæ et delicta maneant
impunita.

THE law hath many grounds and positive learnings, which are 2
not of the maxims and conclusions of reason, but yet are learn-
ings received, which the law hath set down and will not have
called in question: these may be rather called placita juris than
regulæ juris. With such maxims the law will dispense, rather

This and the two following cases are omitted in Camb. MS.

• The Camb. MS. has: "not of the highest rules of reason, which are legum leges, such as we have here collected."

than crimes and wrongs should be unpunished; quia salus populi suprema lex, and salus populi is contained in the repressing offences by punishment.

30. B. F.

Therefore if an advowson be granted to two and the heirs of Fitz. N. B. 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 shall 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 to the heirs of one of them, 6 Ed. 3. f. 21. 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.

pl. 36.

So if tenant for life and his lessor join in a lease for years, 27 H. 8. f. 13. and the lessee commit waste, they shall join in punishing this 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 tenant for life: but because he in the reversion cannot have it alone, because of the mesne estate for life, therefore rather than the waste shall be unpunished, they shall join.

1

So if two coparceners be, and they lease the land, and 2 the lessee commit waste, and one of them die, and hath issue; 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, quàm quod nocet.

So if a man recovers by erroneous 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.

20 Ed. 2.

Fitz. Tit. De

scent, pl. 16.

Also it is a positive ground, that the accessory in felony [33 Eliz.] cannot be proceeded against until the principal be tried; yet if

This and the following case are omitted in the Camb. MS.

"I have transposed these words, which in all the editions and MSS. I have seen stand after" and hath issue;" the sense and the authorities require the change. Fitz. N. B. fo. 60. R.

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a man upon subtlety and 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 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, that are regulæ rationales and not positive, then the law will rather endure a particular offence to escape without punishment than violate such a rule.

As2 it is a rule that penal statutes shall not be taken by equity, and the statute of 1 Ed. VI. cap. 12 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, 2 Ed. VI. cap. 33. And they had 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 conveyance in the putting of the case. And so see the diversity; for if the law be, that for such an offence a man shall lose his right hand, and the offender hath had his right hand cut off in the wars before, he shall not lose his left hand, but the crime shall rather pass without the punishment which the law assigned, than the letter of 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

'Omitted in Camb. MS.

2 For all this paragraph the Camb. MS. has: "Therefore, whereas it is a rule that the penal statutes shall not be taken by equity, if the law be that, for such an offence, a man shall lose his right hand" (and so on as in the text to "extended "): and then adds : "So it is very usual in penal statutes, which have sometimes omitted cases more heinous in the same kind than they have provision for, and yet it hath been requisite to make new statutes and not to exceed the letter of the old.

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.1

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

THOUGH falsity of addition or demonstration doth not hurt where you give a thing a proper name; yet nevertheless if it stand doubtful upon the words, whether they import a false reference or demonstration, or whether they be words of restraint that limit the generality of the former name, the law will never intend error or falsehood.

pl. 72.

And therefore, if the parish of Hurst do extend into the coun- Dy. f. 292. ties 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 called Callis [18 Eliz.] had extended part into 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. [29 Reg.] 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

'Omitted in Camb, MS.

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 those circumstances are true.

[20 Eliz.]
19 H. 6. f. 62.

[27 Ed. 3.]

[24 Eliz.]

REGULA XIV.1

Licet dispositio de interesse futuro sit inutilis, tamen potest fieri declaratio præcedens quæ 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 incumber 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 or instrument, though sometime 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 an obligation to me of one hundred pounds and after do procure me such a lease, that then the same obligation shall be void; and you enter into such an obligation unto me, and afterwards do procure such a lease: yet the obligation is simple, because the defeasance was made of that which was not.

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 his deed do grant to I. S. that, if he purchase the particular estate, he doth atturne to the grant; this is a void atturnment,

Omitted in Camb, MS.

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