THEREFORE if I make a letter of attorney to I. S. to deliver livery and 10 H. 7. 19. 15, 16. 16El.Dy.337. feifin in the capital meffuage, and he doth it in another place of the land, or between the hours of two and three, and he doth it after or before; or if 16El. Dy 337.I make a charter of feoffinent to I. D. and I. B. and exprefs the feifin to be 38H.8.D.68. delivered to I. D. and my attorney deliver it to I. B. in all these cafes the act of the attorney, as to execute the eftate, is void; but if I fay generally to I.D. whom I mean only to enfeoff, and my attorney make it to his attorney, it fhall be intended, for it is a livery to him in law. 11El. Dy.283. 18 El. Sanders cafe. Com. 475. Ibidem. 18 Eliz. in BUT on the other fide, if a man command I. S. to rob I. D. on Shootersbill, and he doth it on Gads-hill, or to rob him fuch 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 doth it by violence; in all these cafes, notwithstanding the fact be not executed in circumftance, yet he is acceffary nevertheless. BUT if it be to kill I. S. and he killeth I. D. mistaking him for I. S. then the acts are diftant in fubftance, and he is not acceffary. 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 fuch things out of a houfe, and precisely restrain him to do it fometime when he is gotten in without breaking of the house, and yet he breaketh the houfe; yet he is acceffary 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. BUT if a man bid one rob I. S. as he goeth to Sturbridge-fair, and he rob Sanders cafe him in his house, the variance feems to be of substance, and he is not acpl.Com.475 ceffary. F.N.br.fo.21. Reg. 17. De fide & officio Judicis non recipitur quaeftio; fed de scientia, five error fit juris five facti. THE law doth fo much refpect the certainty of judgments, and the credit and authority of judges, as it will not permit any error to be affigned that impeacheth them in their trust and office, and in wilful abuse of the fame; but only in ignorance, and miftaking either of the law or of the cafe and matter in fact. AND therefore if I will affign for error, that whereas the verdict paffed for 7 H. 7. 4 me, the court received it contrary, and fo gave judgment against me, this shall not be accepted. 3 H. 6. Aff. 3. So if I will allege for error, that whereas I. S. offered to plead a fufficient bar, the court refused it, and drove me from it, this error fhall not be al:lowed. 2M. Dy.114. i Mar. 5. BUT the greatest doubt is where the court doth determine of the verity of the matter in fact; so that it is rather a point of trial than a point of judgment, whether it fhall be re-examined in error. As if an appeal of maim be brought, and the court, by the affiftance 28 Aff.pl.15. of the chirurgeons adjudge it to be a maim, whether the party grieved may bring a writ of error; and I hold the law to be he cannot. 21H.7.40.35 8 H. 4.3. So if one of the Prothonotaries of the common pleas bring an affize of his office, and allege fees belonging to the fame office in certainty, and iffue is 1 Mar.Dy.89. taken upon these fees, this iffue fhall be tried by the judges by way of exa 163. 5 Mar. Dy. mination, 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 judginent, though the fees in truth be other. So 2 El.285.Dy. So if a woman bring a writ of dower, and the tenant plead her husband 8 H. 6. 23. is alive, this fhall be tried by proofs and not by jury, and upon judgment 43 A 26. given on either fide no error lies. So if nul tiel record be pleaded, which is to be tried by the infpection the record, and judgment be thereupon given, no error lieth. So if in the affize the tenant faith, he is counte de Dale & nient counte, in the writ, this fhall be tried by the records of the chancery, upon judgment given no error lieth, of nofme and So if a felon demand his clergy, and read well and diftinctly, and the court who is judge thereof do put him from his clergy wrongfully, error shall never be brought upon the attainder. So if upon judgment given upon confeffion or default, the court do affefs? damages, the defendant shall never bring a writ of error, though the damage be outragious. 4. Af 5. 39 Aff. 9. 5 Ed. 4. 3. 9 H. 7. 2. 19 H.6. 52. 22 Aff. pl. 24. 19 Ed. 4. 6. Aff. 8. F.N.Br.zi. 11 H. 4. 41. AND it feemeth in the cafe of maim, and fome other cafes, that the court may difmifs themselves of difcuffing the matter by examination, and put it to a jury, and then the party grieved fhall have his attaint; and therefore it seemeth that the court that doth deprive a man of his action, fhould be fubject to an action; but that notwithstanding the law will not have, (as was faid in the beginning,) the judges called in question in the point of their office when they undertake to difcuts the iffue, and that is the true reason: for to say that the reason of these cafes fhould be, because trial by the court 21 Aff. 24. fhould be peremptory as trial by certificate, (as by the Bishop in cafe of baftar-7 H. 6. 37. dy, or by the marfhal of the King, &c.) the cafes are nothing alike; for the reafon of those cases of certificate is, because if the court fhould not give credit to the certificate, but should re-examine it, they have no other mean but to write again to the fame Lord Bishop, or the fame Lord Marthal, which were frivolous, because it is not to be prefumed they would differ from their former certificate; whereas in these other cafes of error the matter is drawn before a fuperiour court, to re-examine the errors of an inferiour court; and therefore the true reason is, as was faid, that to examine again that which the court had tried, were in fubftance to attaint the court. AND therefore this is a certain rule in error, that error in law is ever of fuch matters as do appear upon record; and error in fact is ever of fuch matters as are not croffed 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 F. N.Br. 21. is an infant, therefore it is an error in fact, and fhall be tried by inspection during nonage. 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, fhall never bring a writ of error in the parliament upon this judgment; not but that error lies after error, but 2 R. 3. 20. 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 affign for error that fact, that whereas the judges gave judgment for him, the clerks entred 9 it in the roll against him, this error fhall 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. F. N. Br. 21. Reg 1 7 & 8 Eliz. 19 Ed. 4. 5. 4.5. 22 H. 6. 35. Reg. 18. Perfona conjuncta aequiparatur interesse proprio. THE law hath that refpect of nature and conjunction of blood, as in divers cafes it compareth and matcheth nearness of blood with confideration of profit and intereft; yea, and in fome cafes alloweth of it more ftrongly. THEREFORE if a man covenant in confideration of blood, to ftand seised to the use of his brother, or fon, or near kinfman, an ufe is well raised of this covenant without tranfmutation of poffeffion; nevertheless it is true, that confideration of blood is naught to ground a perfonal contract upon; as if I contract with my fon, that in confideration of blood I will give unto him fuch a fum of money, this is a nudum pactum, and no affumpfit lieth upon it; for to fubject me to an action, there needeth a confideration of benefit; but the use the law raiseth without fuit or action; and befides, the law doth match real confiderations with real agreements and covenants. So if a fuit be commenced against me, my fon, or brother, I may main19 Ed. 4. 22. tain as well as he in remainder for his intereft, or his lawyer for his fee; and 21H.6.15,16. if my brother have a fuit against my nephew or coufin, yet it is at my 22 H. 6.5. election to maintain the caufe of my nephew or coufin, though the adverse 14 H.6.6. party be nearer unto me in blood. 20 H. 6. 14 H. 7. 2. So in challenges of juries, challenge of blood is as good as challenge with14 & 15 Eliz. in distress, and it is not material how far off the kindred be, fo the pedi21 Ed. 4-75.gree can be conveyed in a certainty, whether it be of the half blood or Pl. com.425. whole. 21 Ed. 4. 13. 15 H. 6. 17. So if a man menace me, that he will imprison or hurt in body my father, 39 H. 6. 50. or my child, except I make fuch an obligation, I fhall avoid this dureffe, as 18 H. 6. 21. well as if the dureffe had been to mine own person: and yet if a man me15 Ed. 4. 1. nace me, by taking away or deftruction of my goods, this is no good dureffe 39 H. 6. 91. to plead; and the reafon is, because the law can make me reparation of that 20 Aff. 14. lofs, and fo it cannot of the other. Ed. 7 4. 21. Perk. f. 4. So if a man under the years of twenty one, contract for the nurfing of his lawful child, this contract is good, and fhall not be avoided by infancy, no more than if he had contracted for his own aliments or erudition. Reg. 19. Non impedit claufula derogatoria, quo minus ab eadem poteftate res diffolvantur a quibus conftituuntur. ACTS which are in their natures revocable, cannot by strength of words be fixed or perpetuated; yet men have put in ure two means to bind themfelves from changing or diffolving that which they have set down, whereof one is claufula derogatoria, the other interpofitio juramenti, whereof the former is only pertinent to the prefent purpose. THIS claufula derogatoria is by the common practical term called claufula non obftante, and is of two forts, de praeterito & de futuro, the one weakening and difannulling any matter paft to the contrary, the other any matter to come, and this latter is that only whereof we speak. THE claufula non obftante de futuro, the law judgeth to be idle and of no force, because it doth deprive men of that which of all other things is most incident to human condition, and that is alteration or repentance. THEREFORE if I make my will, and in the end thereof do add fuch like clause, [Also my will is if I fhall revoke this prefent will, or declare any new will, except the fame shall be in writing, fubfcribed with the hands of two witnesses, witneffes, that fuch revocation or new declaration fhall be utterly void, and by these presents I do declare the fame not to be my will, but this my former will to ftand, any fuch pretended will to the contrary notwithstanding] yet nevertheless this claufe or any the like never fo exactly penned; and although it do reftrain the revocation but in circumftance and not altogether, is of no force or efficacy to fortify the former will against the second; but I may by paroll without writing repeal the fame will and make a new one. 24 Ed. 3. So if there be a ftatute made that no fheriff fhall continue in his office 28 Ed. 3. above a year, and if any patent be made to the contrary it shall be void; and cap. 7 if there be any claufula de non obftante contained in fuch patent to difpenfe cap. 9. with this prefent act, that fuch claufe alfo fhall be void; yet nevertheless a pa- 2 H. 7. 6. tent of the sheriff's office made by the King for term of life, with a non obftante, will be good in law contrary to fuch ftatute, which pretendeth to exclude non obftante's; and the reafon is, because it is an infeparable prerogative of the crown to difpenfe with politick ftatutes, 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 fhall not be lawful for the King by authority of parliament, during the space of seven years, to repeal and determine the fame act, this is a void claufe, and fuch act may be repealed within the feven years; and yet if the parliament fhould enact in the nature of the antient lex regia, that there fhould be no more parliaments held, but that the King should have the authority of the parliament; this act were good in law, quia poteftas fuprema feipfum diffolvere poteft, ligare non poteft: for as it is in the power of a man to kill a man, but it is not in his power to fave him alive, and to restrain him from breathing or feeling; fo 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 exercises of the fame authority. So in 28 of K. H. VIII. chap. 17. there was a statute made, that all acts that paffed in the minority of Kings, reckoning the fame under the years of twenty four, might be annulled and revoked by their letters patent when they came to the fame years; but this act in the first of K. Ed. VI. who was 14El.Dy.313. then between the years of ten and eleven, cap. 11. was repealed, and a new law furrogate in place thereof, wherein a more reasonable liberty was given; and wherein, though other laws are made revocable according to the provifion of the former law with fome new form prescribed, yet that very law of Pl.Com 563. revocation, together with pardons, is made irrevocable and perpetual, fo that there is a direct contrariety between these two laws; for if the former ftands, which maketh all later laws during the minority of Kings revocable without exception of any law whatfoever, then that very law of repeal is concluded in the generality, and so it self made revocable: on the other fide, that law making no doubt of the abfolute repeal of the first law, though it felf were made during the minority, which was the very cafe of the former law in the new provifion which it maketh, hath a precife exception, that the law of repeal thall not be repealed. BUT the law is, that the firft law by the impertinency of it was void ab initio & ipfo facto without repeal, as if a law were made, that no new statute fhould be made during feven years, and the fame ftatute be repealed within the feven years, if the firft ftatute thould be good, then no repeal could be made thereof within that time, for the law of repcal were a new law, and that were difabled by the former law; therefore it is void in it felf, and VOL. IV. M the the rule holds, perpetua lex eft, nullam legem kumanam ac pofitivam perpetuam effe; & claufula quae abrogationem excludit initio non valet. NEITHER is the difference of the civil law fo reasonable as colourable, for they diftinguish and say that a derogatory claufe is good to difable any later act, except you revoke the fame claufe before you proceed to establish any later difpofition or declaration; for they fay, that claufula derogatoria ad alias fequentes voluntates pofita in teftamento (viz. fi teftator dicat qd' fi contigerit eum facere aliud teftamentum non vult illud valere) operatur quod fequens difpofitio ab ipfa claufula reguletur, & per confequens quod fequens difpofitio ducatur fine voluntate, & fic quod non fit attendendum. The fenfe 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 difpofition of the former and the later. BUT where there is fuch a derogatory claufe, there can be gathered no fuch repugnancy; because it seemeth that the teftator had a purpose at the making of the firft will to make fome fhew of a new will, which neverthelefs his intention was fhould not take place: but this was answered before; for if that clause were allowed to be good until a revocation, then could no revocation at all be made, therefore it must needs be void by operation of law at first. Thus much of claufula derogatoria. Reg. 20. Actus inceptus, cujus perfectio pendet ex voluntate partium, revocari poteft; fi autem pendet ex voluntate tertiae perfonae, vel ex contingenti, revocari non proteft. IN acts that are fully executed and confummate, the law makes this difference, that if the first parties have put it in the power of a third perfon, 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 confummation depend upon the fame confent, which was the inception, then the law accounteth it in vain to restrain them from revoking of it; for as they may fruftrate it by omiffion and non feifance, at a certain time, or in a certain fort or circumftance, fo the law permitteth them to diffolve it by an express consent before that time, or without that circumstance. THEREFORE if two exchange land by deed, or without deed, and neiF. N. Br. 36. ther enter, they may make a revocation or diffolution of the fame exchange 13H.7.13,14. by mutual confent, fo it be by deed, but not by paroll; for as much as the making of an exchange needeth no deed, because it is to be perfected by entry, which is a ceremony notorious in the nature of a livery; but it cannot be diffolved but by deed, because it dischargeth that which is but title. E. 36 Eliz. So if I contract with I. D. that if he lay me into my cellar three tuns of wine before Mich. that I will bring into his garner twenty quarters of wheat before Christmas, before either of these days the parties may by affent diffolve the contract; but after the first day there is a perfection given to the contract by action on the one fide, and they may make cross releases by deed or paroll, but never diffolve the contract; for there is a difference between disfolving the contract, and release or furrender of the thing contracted for: as if leffee for twenty years make a leafe for ten years, and after he take a new Icafe for five years, yet this cannot inure by way of furrender: for a petty lease derived 3 |