57,

58.

21 Ed. 3. 17.

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.

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 other, that is, of the 35 H. 6. 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 Fitz. in our laws so much of the ancient footsteps of potestas patris 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 add, because some have sought to weaken the law in that point.

Lamb.

Jus.p.293.

crown.

447.

So if land descend to the eldest son of a person attainted from an ancestor of the mother held in knights service, the guardian shall enter, and oust the father, F. N. Br. because the law giveth the father that prerogative in respect he is his son and heir; for of a daughter or of a special heir in tail he shall not have it: but if the son be attainted, and the father covenant in consideration

fo. 143.De Droit.

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 purchase 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 5 Ed. 6. to his other brother of the half blood, if there be no Adm. 47. nearer by the father.

So if the uncle by the mother be attainted, pardoned, 33 H.6.55, 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 5 Ed. 4.50. 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.

Query, Whether if the eldest son be attainted and F. N. Br. pardoned, the lord shall have aid of his tenants to 82. G. Register, make him knight, and it seemeth he shall; for the fol. 87. words of the writ are filium primogenitum, and not filium et hæredem, and the like writ hath pur file marrier who is no heir.

Fitz. N.B.

30.

46 Ed. 3. 21.

27 H. 8. 13.

45 Ed. 3.

3. 22 H. 6. 24.

REGULA XII.

Receditur a placitis juris potius, quam injuriæ et delicta maneant impunita.

THE law hath many grounds and positive learnings, which are not of the maxims and conclusions of reason; but yet are learnings 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 than crimes and wrongs should be unpunished, quia salus populi suprema ler; and salus populi is contained in the repressing offences by punishment.

Therefore if an advowson be granted 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 to the 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 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 forlife; 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 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.

"descent.

So if a man recovers by erroneous judgment, and 20 Ed. hath issue two daughters, and one of them is attainted, 2 Fitz. F. the writ of error shall be brought against both par-16. ceners, notwithstanding the privity fail in the one.

Also it is a positive ground, that the accessary in 33 Eliz. 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.

rone 459.

So it is a ground in the law, that the appeal of Fitz. Comurder goeth not to the heir where the party mur-Ed. 4. M. dered hath a wife, nor to the younger brother where 28. 6. there is an elder; yet if the wife murder her husband, Stamf. lib. 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.

2. fol. 60.

fol. 125.

As it is a rule that penal statutes shall not be taken Cap. 12. by equity, and the statute of 1 Ed. VI. enacts that Stamf. 2. 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 Plow.467. they had reason for it, as I take the law; for it is not Litt. cap. like the case upon the statute of Glocest. that gives an 31. 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

46. Ed. 3.

12 Eliz, 2.

23 Eliz.

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 falshood.

And therefore if the parish of Hurst do extend into Dyer, 291. the counties of Wiltshire and Berkshire, and I grant Dy. 376. my close called Callis, situate and lying in the parish 7 Ed. 6. of Hurst in the county of Wiltshire, and the truth is, Dy. 56. 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.