Com. Plowd. So if I devise the manor of D. byse, 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. Rigden's case. 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 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 the 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. 21 Eliz. Cr. Just. But quære, if I. S. lay impoisoned fruit for some other stranger his enemy, peace, fol and his father or mother come and eat it, whether this be petty treason, because it is not altogether crimen paris gradus. REGULA XVI. Mandala licita recipiunt strictam interpretationem, sed illicita latam et extensam. But when a man is author and monitor to another to commit an unlawful act, then he shall not excuse himself by circumstances not pursued. Therefore if I make a letter of attorney IN committing of lawful authority to another, a man may limit it as strictly as it pleaseth him, But if I mortgage land, and after cove- and if the party authorized do transgress his nant with I. S. in consideration of mo-authority, though it be but in circumstance exney which I receive of him, that after I have pressed, it shall be void in the whole act. entered for the condition broken, I will stand seised to the use of the same I. S. and I enter, and this deed is enrolled, and all within the six months, yet nothing passeth away, because this enrolment is no new act, but a perfective ceremony of the first deed of bargain and sale; and the law is more strong in that case, because of the vehement relation which the enrolment hath to the time of the bargain and sale, at what time he had nothing but a naked condition. So if two joint tenants be, and one 6 Ed. 6. Br. of them bargain and sell the whole land, and before the enrolment his companion dieth, nothing passeth of the moiety accrued unto him by survivor. REGULA XV. 10 H. 7, 19 16 El. Dy. 337. 16 El. Dy. 337. 38 H. S. to I. S. to deliver livery and seisin in 15, 16 But on the other side, if a man com- 18 El. Sander's In criminalibus sufficit generalis malitia intentionis mand I. S. to rob I. D. on Shooters- case, com. 175. 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 which the intention of the malefactor levelled, yet the law giveth him no advantage of that error, if another particular ensue of as high a nature. 19 Eliz. Sander's case. tom 474. Therefore if an impoisoned apple be laid in a place to poison I. S. and I. 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. So if a thief find the door open, and Cr. J. Peace, 30. come in by night and rob a house, and be taken with the manner, and break 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 strike 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 Cave hill, and he doth it on Gad's-hill; or to rob him such a day, 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 cases, notwithstanding the fact be not executed, yet he is accessory nevertheless. Ibidem. But if it be to kill I. S. and he killeth I. D. mistaking him for I. S. then the acts are distant in substance, and he is not accessory. 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 such things out of a house, and precisely restrain him to do it sometimes when he is gotten in without breaking of the house, and yet he breaketh the house; yet he is accessory 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. REGULA XVII. De fide et officio judicis non recipitur quæstio; sed de scientia, sive error sit juris sive facti. THE law doth so much respect the certainty of judgment, 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. F. N. Br. fo. 21. And therefore if I will assign for 7 H. 7. 4. error, that whereas the verdict passed for me, the court received it contrary, and so gave judgment against me, this shall not be accepted. So if I will allege for error, that 3 H. 6. Ass. 3. whereas I. S. offered to plead a sufficient bar, the court refused it, and drave 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 is rather a point of trial than a point of judgment, whether it shall be re-examined in error. SH. 4. 3. 21 Ass. 24. 7 H. 6. 37. And it seemeth in the case of maim, and some other cases, that the court may dismiss themselves of discussing the matter by examination, and put it to a jury, and then the party grieved shall have his attaint; and therefore it seemeth that the court that doth deprive a man of his action, should be subject to an action; but that notwithstanding the law will not have, as was said in the beginning, the judges called in question in the point of their office when they undertake to discuss the issue, and that is the true reason for to say that the reason of these cases should be, because trial by the court should be peremptory as trial by certi- 4.41. ficate, (as by the bishop in case of bastardy, or by the marshal of the king, &c.) the cases are nothing alike; for the reason of those cases of certificate is, because if the court should not give credit to the certificate, but should re-examine it, they have no other mean but to write again to the same lord bishop, or the same lord marshal, which were frivolous, because it is not to be presumed they would differ from their former certificate; whereas in these other cases of error the matter is drawn before a superior court, to re-examine the errors of an inferior court: and therefore the true reason, as was said, that to examine again that which the court had tried were in substance to attaint the court. So if one of the prothonotaries of the And therefore this is a certain rule in error, that Common Pleas bring an assize of his error in law is ever of such matters as were not office, and allege fees belonging to the same office crossed by the record; as to allege the death of 1 Mar. Dy. 99, in certainty, and issue is taken upon the tenant at the time of the judgment given, 5 Mar. Dy. 163. these fees, this issue shall be tried by nothing appeareth upon record to the contrary. the judges by way of examination, and if they So when the infant levies a fine, it determine it for the plaintiff, and he have judg-appeareth not upon the record that he ment to recover arrearages accordingly, the defendant can bring no writ of error of this judgment, though the fees in truth be other. F. N. Br. 21. is an infant, therefore it is an error in fact, and shall be tried by inspection during nonage. 2 R. 3. 20. 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, shall never bring a writ of error in the Parliament upon this judgment; not but that error lies after error, but 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 assign for error that fact, that whereas the judges gave 9 Ed. 4. 3. judgment for him, the clerks entered it in the roll against him, this error shall 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. REGULA XVIII. F. N. Br. 21. Persona conjuncta æquiparatur interesse proprio, THE law hath that respect of nature and conjunction of blood, as in divers cases it compareth and matcheth nearness of blood with consideration of profit and interest; yea, and in some cases alloweth of it more strongly. 7 et 8 Eliz. Therefore if a man covenant, in consideration of blood, to stand seised to the use of his brother, or son, or near kinsman, a use is well raised of this covenant without transmutation of possession; nevertheless it is true, that consideration of blood is not to ground a personal contract upon; as if I contract with my son, that in consideration of blood I will give unto him such a sum of money, this is a nudum pactum, and no assumpsit lieth upon it; for to subject me to an action, there needeth a consideration of benefit: but the use the law raiseth without suit or action; and besides, the law doth match real considerations with real agreements and covenants. This clausula derogatoria is by the common practical term called clausula no obstante, de futuro esse, the one weakening and disannulling any matter past to the contrary, the other any matter to come; and this latter is that only whereof we speak. The clausula de non obstante 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 such like clause [Also my will is, if I shall revoke this present will, or declare any new will, except the same shall be in writing, subscribed with the hands of two witnesses, that such revocation or new declaration shall be utterly void; and by these presents I do declare the same not to be my will, but this my former will to stand] any such pretended will to the contrary notwithstanding; yet nevertheless this clause or any the like never so exactly penned, and although it do restrain the revocation but in circumstance and not altogether, is of no force or efficacy to fortify the former will against the second; but I may by parole without writing repeal the same will and make a new. 28 Ed. 3. cap. 7. 24 d. 3; cap. 9. So if there be a statute made that no sheriff shall continue in his office above a year, and if any patent be made to 2.7. & the contrary, it shall be void; and if there be any clausula de non obstante contained in such patent to dispense with this present act, that such clause also shall be void; yet nevertheless a patent of the sheriff's office made by the king, with a non obstante, will be good in law contrary to such statute, which pretendeth to exclude non obstantes; and the reason is, because it is an inseparable prerogative of the crown to dispense with politic statutes, 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 shall not be lawful for the king, by authority of Parliament, during the space of seven years, to repeal and determine the same act, this is a void clause, and such act may be repealed within the seven years; and yet if the Parliament should enact in the nature of the ancient lex regia, that there should be no more Parliaments held, but that the king should have the authority of the Parliament; this act were good in law, quia potestas suprema seipsum dissolvere potest, ligare non potest; for as it is in the power of a man to kill a man, but it is not in his power to save him alive, and to restrain him from breathing or feeling; so 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 ex ercises of the same authority. So in the 23 of K. H. VIII. chap. 17, there was 14 El. Dy. 313. a statute made, that all acts that passed in the minority of kings, reckoning the same under the years of twenty-four, might be annulled and revoked by their letters patents when they came to the same years; but this act in the first of K. Ed. VI. who was then between the years of ten and eleven, cap. 11, was repealed, and a new law surrogate in P. Comm. 563. place thereof, wherein a more reasonable liberty was given; and wherein, though other laws are made revocable according to the provision of the former law with some new form prescribed, yet that very law of revocation, together with pardons, is made irrevocable and perpetual, so that there is a direct contrariety between these two laws; for if the former stands, which maketh all latter laws during the minority of kings revocable without exception of any law whatsoever, then that very law of repeal is concluded in the generality, and so itself made revocable on the other side, that law making no doubt of the absolute repeal of the first law, though itself were made during the minority, which was the very case of the former law in the new provision which it maketh, hath a precise exception, that the law of repeal shall not be repealed. at the making of the first will to make some show of a new will, which nevertheless his intention was should not take place: but this was answered before; for if that clause were allowed to be good until a revocation, then would no revocation at all be made, therefore it must needs be void by ope ration of law at first. Thus much of clausula derogatoria. REGULA XX. Actus inceptus, cujus perfectio pendet ex voluntate partium, revocari potest; si autem pondet ex voluntate tertiæ personæ, vel ex contigenti, non potest. IN acts that are fully executed and consum. mate, the law makes this difference, that if the first parties have put it in the power of a third per son, 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 consummation depend upon the same consent, which was the inception, then the law accounteth it in vain to restrain them from revoking of it; for as they may frustrate it by omission and non feisance, at a certain time, or in a certain sort or circumstance, But the law is, that the first law by the imper-so the law permitteth them to dissolve it by an tinency of it was void ab initio et ipso facto with-express consent before that time, or without that out repeal, as if a law were made, and no new circumstance. statute should be made during seven years, and the same statute be repealed within the seven years, if the first statute should be good, then the repeal could not be made thereof within that time; for the law of repeal were a new law, and that were disabled by the former law; therefore it is void in itself, and the rule holds, perpetua 1 x est, nullam legem humanam ac positivam perpetuam esse; et clausula quæ abrogationem excludit initio non valet. Therefore if two exchange land by deed, or without deed, and neither enter, they F. N. Br. 36. may make a revocation or dissolution 13 H. 7. 13, 14. of the same exchange by mutual consent, so it be by deed, but not by parole; 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 dissolved but by deed, because it dischargeth that which is but title. F. 36 Eliz. Neither is the difference of the civil law so rea- So if I contract with I. D. that if he lay me into sonable as colourable, for they distinguish and my cellar three tuns of wine before say that a derogatory clause good to disable Mich. that I will bring into his garner any latter act, except you revoke the same clause twenty quarters of wheat before Christmas, before before you proceed to establish any later disposi- either of these days the parties may by assent distion or declaration; for they say, that clausula solve the contract; but after the first day there is a derogatoria ad alias sequentes voluntates posita in perfection given to the contract by action on the testamento, (viz. si testator dicat quod si contigerit one side, and they may make cross releases by deed eum facere aliud testamentum non vult illud valere,) or parole, but never dissolve the contract; for there operatur quod sequens dispositio ab ipsa clausula is a difference between dissolving the contract, and reguletur, et per consequens quod scquens dispositio duretur sine voluntate, et sic quod non sit attenden. dum. The sense 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 disposition of the former and the later. But where there is such a derogatory clause, there can be gathered no such repugnancy: because it seemeth that the testator had a purpose VOL. III.-31 release or surrender of the thing contracted for: as if lessee for twenty years make a lease for ten years, and after he take a lease for five years, yet this cannot inure by way of surrender: for a petty lease derived out of a greater cannot be surrendered back again, but inureth only by dissolution of contract; for a lease of land is but a contract executory from time to time of the profits of the land, to arise as a man may sell his corn or his tithe to spring or to be perceived for divers future years. X The same difference appeareth in nominations and elections; as if I enfeoff such a one as I. D. shall name within a year, and I. D. name I. B. yet before the feoffment, and within the year, I. D. may countermand his nomination, and name again, because no interest passeth out of him. But if I enfeoff I. S. to the use of such a one as I. D. shall name within a year, then if I. D. name I. B. it is not revocable, because the use passeth presently by operation of law. So in judicial acts the rule of the civil law holdeth sententia interlocutoria revocari potest, that is, that an order may be revoked, but a judgment cannot; and the reason is, because there is title of execution or bar given presently unto the party upon judgment, and so it is out of the judge to revoke, in courts ordered by the common law. REGULA XXI. Clausula vel dispositio inutilis per presumptionem remotam vel causam ex post facto non fulcitur. Clausula vel dispositio inutilis are said when the act or the words do work or express no more than the law by intendment would have supplied; and therefore the doubling or iterating of that and no more, which the conceit of law doth in a sort prevent and preoccupate, is reputed nugation, and is not supported, and made of substance either by a foreign intendment of some purpose, in regard whereof it might be material, nor upon any cause emerging afterwards, which may induce an operation of those idle words. 32 H. 8. And therefore if a man demise land at this day to his son and heir, this is a void devise, because the disposition of law did cast the same upon the heir by descent; and yet if it be knight's service land, and the neir within age, if he take by the devise, he shall have two parts of the profits to his own use, and the guardian shall have benefit but of the third; but if a man devise land to his two daughters, having no sons, then the devise is good, because 29 H. S Dy. 12. he doth alter the disposition of law; for by the law they shall take in copercenary, but by the devise they shall take jointly; and this is not any foreign collateral purpose, but in point of taking of estate. So if a man make a feoffment in fee to the use of his last will and testament, these words of special limitation are void, and the law reserveth the ancient use to the feoffor and his heirs; and yet if the words might stand, then might it be authority by his will to declare and appoint uses, and then though it were knight's service land, he might dispose the whole. As if a man make a feoffment in fee, to the use of the will and testament of a stranger, there the stranger may declare a use of the whole by his will, notwithstanding it be knight's service land; but the reason of the principal case is, because uses before the statute of 27 H. 8. were to have been disposed by will, and therefore before that statute a use limited in the form aforesaid, was but a frivolous limitation, in regard of the old use that the law reserved was deviseable; and the statute of 27 altereth not the law, as to the creating and limiting of any use, and therefore after that statute, 5 Ed. 4.8. and before the statute of wills, when no land could have been devised, yet was it a void limitation as before, and so continueth to this day. 19 H. S. IL. But if I make a feoffment in fee to the use of my last will and testament, thereby to declare an estate tail and no greater estate, and after my death, and after such estate declared shall expire, or in default of such declaration then to the use of I. S. and his heirs, this is a good limitation; and I may by my will declare a use of the whole land to a stranger, though it be held in knight's service, and yet I estate in fee simple by virtue of the during life. 19 H. 8. 11. Ed. 4. & have an old use 2 E4. 3. 29. But if I make a feoffment in fee to the use of my right heirs, and the right heirs of I. 10 El. 274. S. this is a good use, because I have Dy. altered the disposition of law; neither is it void for a moiety, but both our right heirs when they come in being shall take by joint purchase; and he to whom the first falleth 30 E 1 Fitz. shall take the whole, subject nevertheless to his companion's title, so it have not de scended from the first heir to the heir of the heir: for a man cannot be joint-tenant claiming by pur chase, and the other by descent, because they be several titles. Devise, 9. So if a man having land on the part of his |
