heir, but not of the other, that is, of the fon; therefore if a man be attainted and murdered by a stranger, the eldest fon fhall not have the appeal, be- 36 H.6. 57, caufe the appeal is given to the heir, for the youngest fons who are equal 21 Ed. 3.17. in blood shall not have it; but if an attainted perfon be killed by his fon, this is petty treason, for that the privity of a fon remaineth: for I admit the law to be, that if the fon kill his father or mother it is petty treafon, and that there remaineth fo much in our laws of the antient footsteps of poteftas patria and natural obedience, which by the law of God is the very inftance it felf; and all other government and obedience is taken but by equity, which I add, because fome have thought to weaken the law in that point. So if land defcend to the eldest son of a perfon attainted from his ancestor of the part of the mother held in knights fervice, the guardian fhall enter, and oust the father, because the law giveth the father that prerogative in refpect he is his F. N. Br. fo. fon and heir; for of a daughter or a special heir in tail he fhall not have it: 143. but if the fon be attainted, and the father covenant in confideration of natural love to stand seised of land to his ufe, this is good enough to raise an use, because the privity of a natural affection remaineth. So if a man be attainted and have a charter of pardon, and be returned of a jury between his fon and I. S. the challenge remaineth; for he may mainany fuit of his fon, notwithstanding the blood be corrupted. tain So by the ftatute of 21 H. VIII. the ordinary ought to commit the adminiftration 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 his inheritance for if one brother of the half blood die, the adminiftration ought to be committed to his other brother of the half blood, if there be no nearer by Adm. 47. the father. 5 Ed. 6. So if the uncle by the mother be attainted, and pardoned, and land de33 H.6.55. scend from the father to the fon within age held in focage, the uncle fhall be guardian in focage; for that favoureth fo little of the privity of heir, as the poffibility to inherit shutteth out. BUT if a feme tenant in tail affent to the ravisher, and have no iffue, and her coufin is attainted, and pardoned, and purchaseth the reverfion, he fhall 5 Ed. 4. 5not enter for a forfeiture. For though the law giveth it not in point of inheritance, but only as a perquifite to any of the blood, fo he be next in eftate; yet the recompence is understood for the ftain of his blood, which cannot be confidered when it is once wholly corrupted before. So if a villain be attainted, yet the lord fhall have the iffues of his villain born before or after the attainder; for the lord hath them jure naturae but as the increase of a flock. QUAERE, whether if the eldest fon be attainted and pardoned, the lord F. N. Br. fhall have aid of his tenants to make him a knight, and it feemeth he shall; for the words of the writ hath filium primogenitum, and not filium & haeredem, and the like writ he hath pur file marrier who is no heir. Reg. 12. Receditur a placitis juris, potius quam injuriae & delicta maneant impunita. THE law hath many grounds and pofitive learnings, which are not of the maxims and conclufions of reafon; but yet are learnings received which the law hath fet down and will not have called in queftion: these may be rather called placita juris than regulae juris; with fuch maxims the law will dispense, rather than crimes and wrongs fhould be unpunished, quia falus populi fuVOL. IV. prema K Regifter fol. 87. 46 Ed. 3. 21. 45 Ed. 3. 3. 22 H. 6. 24 20Ed.2.Fitz. prema lex; and falus populi is contained in the repreffing offences by punish ment. THEREFORE if an advowfon be granted to two, and the heirs of one of them, and an ufurpation be had, they both fhall join in a writ of right of advowfon; and yet it is a ground in law, that a writ of right lieth of no less eftate than a fee-fimple; but because the tenant for life hath no other feveral action in the law given him, and alfo that the jointure is not broken, and fo the tenant in fee-fimple cannot bring his writ of right alone; therefore rather than he should be deprived wholly of remedy, and this wrong unpunished, he fhall join his companion with him, notwithstanding the feebleness of his eftate. BUT if lands be given to two, and to the heirs of one of them, and they lofe in a praecipe by default, now they fhall not join in a writ of right, because the tenant for life hath a feveral action, viz. a Quod ei deforciat, in which refpect the jointure is broken. So if tenant for life and his leffor join in a leafe for years, and the leffee commit wafte, they fhall join in punishing this waste, and locus vaftatus shall go to the tenant for life, and the damages to him in reverfion; and yet an action of waste lieth not for tenant for life; but because he in the reverfion 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 leafe the land, and one of them die, and hath iffue, and the leffee commit wafte, the aunt and the iffue fhall join in punishing this waste, and the iffue fhall recover the moiety of the place wafted, and the aunt the other moiety and the entire damages; and yet actio injuriarum moritur cum perfona, but in favorabilibus magis attenditur quod prodeft, quam quod nocet. So if a man recovers by erroneous judgment, and hath iffue two daughters, defcent. 16. and one of them is attainted, the writ of error fhall be brought against the parceners, notwithstanding the privity fail in the one. 33 Eliz. Fitz Corone 459 ALSO it is a pofitive ground, that the acceffary in felony cannot be proceeded against, until the principal be tried; yet if a man upon fubtlety and malice fet a madman by fome device to kill, and he doth fo; now forafmuch 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 fhall go unpunished. So it is a ground of the law, that the appeal of murder goeth not to the heir where the party murdered hath a wife, nor to the younger brother M. 28 H. 6. 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 fo if the fon and heir murder his father, it goeth to the fecond brother. Staundf. lib. 2. fol. 59. BUT if the rule be one of the higher fort of maxims that are regulae rationales, and not pofitivae, then the law will rather endure a particular offence to efcape without punishment, than violate fuch a rule. I As it is a rule that penal ftatutes fhall not be taken by equity, and the statute of 1 Ed. VI. enacts that those that are attainted for stealing of horfes fhall not have their clergy, the judges conceived, that this did not extend to him that fhould fteal but one horfe, and therefore procured a new act for it in 2 Ed. VI. cap. 33. And they had reason for it, as I take the law; for it is not like the cafe upon the ftatute of Gloceft. that gives the action of waste against him that Plow. 467. holds pro termino vitae vel annorum. It is true, that if a man holds but for a Lit. cap. 67. 16 Ed.:37 year he is within the ftatute; for it is to be noted, that penal ftatutes are 46 3. 31. I taken 2 taken strictly and literally only in the point of defining and fetting down the fact and the punishment, and in thofe claufes that do concern them; and not generally in words that are but circumftances and conveyance in the putting of the cafe and fo fee the diverfity, for if the law be, that for fuch an offence a man shall lofe his right hand, and the offender hath had his right hand before cut off in the wars, he fhall not lose his left hand, but the crime shall rather pafs without the punishment which the law affigned, than the letter of the law fhould be extended; but if the ftatute of 1 Ed. VI. had been, that he that should steal one horse should be oufted of his clergy, then there had been no question at all, but if a man had stolen more horses than one, but that he had been within the ftatute, quia omne majus continet in je minus. I Reg. 13. Non accipi debent verba in demonftrationem falfam, quae compe tunt in limitationem veram. THOUGH falfity of addition or demonstration doth not hurt where you give the thing a proper name, yet nevertheless if it stand doubtful upon the words, whether they import a falfe 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 falfhood. 12 Eliz. 6. 56. THEREFORE if the parish of Hurst do extend into the counties of Wiltsh. and Berkb. and I grant my close called Callis, fituate and lying in the parish 291; 23 Eliz. Dyer of Hurft in the county of Wiltfh. and the truth is, that the whole clofe 376. lieth in the county of Berkfb. yet the law is, that it paffeth well enough, 7 Ed. 6. Dy. because there is a certainty fufficient 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 Wiltfh. fhall be taken to go to the parish only, and fo be true in fome fort, and not to the close, and fo to be falfe: For if I had granted omnes terras meas in parochia de Hurft in com. Wiltsh. and I had no lands in Wiltfb. but in Berkh, nothing had past. BUT in the principal cafe, if the close called Callis had extended part into 9 Ed. 4. 7. Wiltfb, and part into Berkh. then only that part had paffed which lay in 21 Ed. 3. 18. Wiltfb. 18 Eliz. So if I grant omnes & fingulas terras meas in tenura I. D. quas perquifivi 29 Reg. de I. N. in indentura dimiffionis fact 1. B. fpecificat. If I have land wherein fome of these references are true, and the reft falfe, and no land wherein they are all true, nothing paffeth: as if I have land in the tenure of I. D. and purchafed of I. N. but not fpecified 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 fome land wherein all thefe demonftrations are true, and fome wherein part of them are true, and part falfe, then shall they be intended words of true limitation to pafs only those lands wherein all those circumftances are true. Reg. 14. Licet difpofitio de interesse futuro fit inutilis, tamen poteft fieri declaratio THE law doth not allow of grants except there be a foundation of an in- 20 Eliz. 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, fo that there be fome new act or conveyance to give life and vigour to the declaration precedent. Now the best rule of diftinction between grants and declarations is, that grants are never countermandable, not in refpect of the nature of the conveyance or inftrument, though fometime in refpect of the intereft granted they are, whereas declarations evermore are countermandable in their na tures. AND therefore if I grant unto you, that if you enter into an obligation to me of 100. and after do procure me fuch a leafe, that then the fame obli19 H. 6.62. gation fhall be void, and you enter into fuch an obligation unto me, and afterwards do procure fuch a lease, yet the obligation is fimple, because the defeifance was made of that which was not. 27 Ed. 3. 29 Ed. 3. 6. 24 Eliz. 13, 14 Eliz. 25 Eliz. So if I grant unto you a rent charge out of white acre, and that it fhall be lawful for you to diftrain in all my other lands whereof I am now feised, and which I fhall hereafter purchase; although this be but a liberty of distress, and no rent fave only out of white acre, yet as to the lands afterwards to be purchafed the claufe is void. So if a reverfion be granted to I. S. and I. D. a stranger by his deed do grant to I. S. that if he purchase the particular eftate, he will atturn to the grant, this is a void atturnment, notwithstanding he doth afterwards purchase the particular estate. BUT of declarations the law is contrary; as if the diffeifee make a charter 20, 21 Eliz. of feoffment to I. S. and a letter of attorney to enter and make livery and feifin, and deliver the deed of feoffment, and afterwards livery and feifin is made accordingly, this is a good feoffment; and yet he had no other thing than a 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 fubfequent, therefore it is good in law. M. 38 & 39 Eliz. 36 Eliz. 2; Eliz. 27 Eliz. Com. Plowd. So if a man make a feoffment 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 those deeds of feoffment, and letters of attorney are delivered at a time, fo that the fecond deed of feoffment and letters of attorney are delivered when the first feoffee had 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 fuch a day I will purchase the manor of D. and before the fame day I will levy a fine of the fame land, and that the fame fine fhall be to certain ufes which I express in the fame indenture; this indenture to lead ufes being but matter of declaration and countermandable at my pleasure, will fuffice, though the land be purchased after; because there is a new act to be done, viz. the fine. BUT if there were no new act, then otherwise it is; as if I covenant with my fon in confideration of natural love, to ftand seised unto his use of the lands which I fhall afterwards purchase, yet the use is void; and the reason is, because there is no new act, nor tranfmutation of poffeffion following to perfect this inception; for the use must be limited by the feoffor, and not the feoffee, and he had nothing at the time of the covenant. So if I devife the manor of D. by special name, of which at that time I Rigden's cafe.am not seised, and after I purchase it, except I make fome new publication of of my will, this devife is void; and the reafon is, because that my death, But if I grant unto I. S. authority by my deed to demife for years, the BUT if I mortgage land, and after covenant with I. S. in confideration of 21 Eliz. So if two jointenants be, and one of them bargain and fell the whole land, 6 Ed. 6. Br. Reg. 15. In criminalibus fufficit generalis malitia intentionis cum factó paris gradus. ALL crimes have their conception in a corrupt intent, and have their con- ders cafe, Pl. So if a thief find the door open, and come in by night and rob an houfe, Cr. Juft. 30. yet the breaking of the door was without any felonious intent, but it is one So if a caliver be discharged with a murderous intent at I. S. and the BUT quaere, if I. S. lay impoifoned fruit for fome other stranger his ene- Cr. Just. føl. my, and his father or mafter come and eat it, whether this be petty treafon, 18, 19. because it is not altogether crimen paris gradus. Reg. 16. Mandata licita recipiunt ftri&tam interpretationem, fed illicita latam & extenjam. IN committing of lawful authority to another, a man may limit it as ftrictly as it pleaseth him, and if the party authorized do tranfgrefs his authority, though it be but in circumftance expreffed, 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. VOL IV. L THEREEORE |