offence in degree, as it standeth at the time when | fault, it will rather put him in a better degree and it is committed; so as if any circumstance or condition than in a worse; for if it disable him to matter be subsequent, which laid together with pursue his action, or to make his claim, sometimes the beginning should seem to draw it to a higher it will give him the thing itself by operation of nature, yet the law doth not extend or amplify law without any act of his own, sometimes it the offence. will give him a more beneficial remedy. Therefore, if a man be wounded, and 11 H. 4. 12. the percussor is voluntarily let go at large by the gaoler, and after death ensueth of the hurt, yet this is no felonious escape in the gaoler. So if the villain strike the heir apparent of the lord, and the lord dieth before, and the person hurt who succeedeth to be lord to the villain dieth after, yet this is no petty treason. So if a man compass and imagineth the death of one that after cometh to be king of the land, not being any person mentioned within the statute of 25 Ed. III. this imagination precedent is not high treason. So if a man use slanderous words of a person upon whom some dignity after descends that maketh him a peer of the realm, yet he shall have but a simple action of the case, and not in the nature of a scandalum magnatum upon the statute. So if John Stile steal sixpence from me in money, and the king by his proclamation doth raise moneys, that the weight of silver in the piece now of sixpence should go for twelve pence, yet this shall remain petty larceny, and not felony and yet in all civil reckonings the alteration shall take place; as if I contract with a labourer to do some work for twelve pence, and the enhancing of money cometh before I pay him, I shall satisfy my contract with a sixpenny piece so raised. : So if a man deliver goods to one to keep, and after retain the same person into his service, who afterwards goeth away with his goods, 28 H. 8. pl. 2. this is no felony by the statute of 21 H. VIII. because he was not servant at that time. In like manner if I deliver goods to the servant of I. S. to keep, and after die, and make I. S. my executor; and before any new commandment of I. S. to his servant for the custody of the same goods, his servant goeth away with them, this is also out of the same statute. Quod nota. 18 Eliz. com. But note that it is said præteriti delicti; for any accessory before the act is subject to all the contingencies pregnant of the fact, if they be pursuances of the same fact: as if a man command or counsel one to rob a man, or beat him grievously, and murder ensue, in either case he is accessory to the murder, quia in criminalibus præstantur accidentia. 175. REGULA IX. Quod remedio destituitur ipsa re valet si culpa absit. THE benignity of the law is such, as, when to preserve the principles and grounds of law it depriveth a man of his remedy without his own Lit. pl. 683. And therefore if the heir of the disseisor which is in by descent make a lease for life, the remainder for life unto the disseisee, and the lessee for life die, now the frank tenement is cast upon the disseisee by act in law, and thereby he is disabled to bring his præcipe to recover his right; whereupon the law judgeth him in of his ancient right as strongly as if it had been recovered and executed by action, which operation of law is by an ancient term and word of law called a remitter; but if there may be assigned any default or laches in him, either in accepting the freehold or in accepting the interest that draws the freehold, then the law denieth him any such benefit. And therefore if the heir of the dis seisor make a lease for years, the re- Lit. pl. 692. mainder in fee to the disseisee, the disseisee is not remitted, and yet the remainder is in him without his own knowledge or assent: but because the freehold is not cast upon him by act in law, it is no remitter. Quod nota. Lit. pl. 685. So if the heir of the disseisor infeoff the disseisee and a stranger, and make livery to the stranger, although the stranger die before any agreement or taking of the profits by the disseisee, yet he is not remitted; because though a moiety be cast upon him by survivor, yet that is but jus accrescendi, and it is no casting of the freehold upon him by act in law, but he is still as an immediate purchaser, and therefore no remitter. le ley deeme contrarie. So if the husband be seised in the right of his wife, and discontinue and dieth, and the feme takes another husband, who takes a Semble in cest feoffment from the discontinuee to him case clerement and his wife, the feme is not remitted; and the reason is, because she was once sole, and so a laches in her for not pursuing her right; but if the feoffment taken back had been to the first husband and herself, she had been remitted. Lit. pl. 665. 2 M. Condic. 3. Yet if the husband discontinue the lands of the wife, and the discontinuee make a feoffment to the use of the husband and wife, she is not remitted; but that is upon a special reason, upon the letter of the statute of 27 H. VIII. of uses, that willeth that the cestuy que use shall have the possession in quality and degree, as he had the use; but that holdeth place only upon the first vesting of the use; for when 34. H. S. the use is absolutely executed and life, the remainder to the use of baron and feme, | selves in property, and upon a plea of fully ad and lessee for life die, now the feme is remitted, ministered it shall be allowed: and the reason is, causa qua supra. Also, if the heir of the disseisor make a lease for life, the remainder to the disseisee, who chargeth the remainder, and lessee for life dies, the disseisee is not remitted; and the reason is, his intermeddling with the wrongful remainder, whereby he hath affirmed the same to be in him, and so accepted it: but if the heir of the disseisor had granted a rent charge to the disseisee, and afterwards made a lease for life, the remainder to the disseisee, and the lessee for life had died, the disseisee had been remitted; because there appeareth no assent or acceptance of any estate in the freehold, but only of a collateral charge. 6 Ed. 3. 4. 28 H. 8. pl. 207. because it may be matter of necessity for the well But if there be an overplus of goods, 3 Eliz. 187. 29 H. 8. pl. in fine. 22 Ass. 52 F. Rec. in So if the feme be disseised, and intermarry with the disseisor, who makes a lease for life, rendering rent, and dieth, leaving a son Cond. 3. 67. by the same feme, and the son accepts the rent of the lessee for life, and then the feme dies, and the lessee for life dies, the son is not remitted; yet the frank tenement was cast upon him by act in law, but because he had agreed to be in the tortious reversion by acceptance of the rent, therefore no remitter. So if I. S. have a lease for years So if tenant in tail discontinue, and the discon-worth twenty pounds by the year, and tinuee make a lease for life, the remainder to the grant unto I. D. a rent of ten pounds a issue in tail being within age, and at full age the year, and after make him my executor; lessee for life surrendereth to the issue in tail, now I. D. shall be charged with assets ten pounds and tenant in tail die, and lessee for life dies, yet only, and the other ten pounds shall be allowed the issue is not remitted and yet if the issue and considered to him: and the reason is, because had accepted a feoffment within age, and had con- the not refusing shall be accounted no laches to tinued the taking of the profits when he came of him, because an executorship is pium officium, full age, and then the tenant in tail had died, not- and matter of conscience and trust, and not like a withstanding his taking of the profits, he had purchase to a man's own use. been remitted; for that which guides the remitter, is, if he be once in of the freehold without any laches: as if the heir of the disseisor enfeoffs the heir of the disseisee, who dies, and it descends to a second heir, upon whom the frank tenement is cast by descent, who enters and takes the profits, and then the disseisee dies, this is a remitter, causa qua supra. Also, if tenant in tail discontinue for Lit. pl. 3. 6. life, and take a surrender of the lessee, now he is remitted and seised again by force of the tail, and yet he cometh in by his own act: but this case differeth from all other cases; because the discontinuance was but particular at first, and the new gained reversion is but by intendment and necessity of law; and, therefore, is but, as it were, ab initio, with a limitation to determine whensoever the particular discontinuance endeth, and the estate cometh back to the ancient right. Like law is, where the debtor makes the debtee his executor, the debt shall be considered in the assets, notwithstanding it be a thing in action. 12 H. 4. 22. Cond. 185. 37 H. 6. 32. 2 H. 7. 5. Lit. pl. 352. So if I have a rent charge, and grant 6 E. 6. Cond. that upon condition, now though the 133.6. condition be broken, the grantee's estate is not defeated till I have made my claim; but if after any such grant my father purchase the land, and it descend to me; now, if the condition be broken, the rent ceaseth without claim: but if I had purchased the land myself then I had extincted my own condition, because I had disabled myself to make my claim: and yet a condition collateral is not sus- 20 H. 7. per pended by taking back an estate; as if 35 H. 6. Fitz. I make a feoffment in fee, upon condi- Barr. 162. tion that I. S. shall marry my daughter, and take a lease for life from my feoffee, if the feoffee To proceed from cases of remitter, which is a break the condition I may claim to hold in by my great branch of this rule, to other cases: if exe-fee-simple; but the case of the charge is othercutors do redeem goods pledged by their testator wise, for if I have a rent charge issuing out of with their own money, the law doth convert so twenty acres, and grant the rent over upon con6 H. 8. pl. 3. much goods as doth amount to the dition, and purchase but one acre, the whole con. value of that they laid forth, to them-dition is extinct, and the possibility of the rent. OL. III.-30 U 2 ( by reason of the condition, is as fully destroyed cannot now be, he shall have the whole patronas if there had been no rent in esse. 30 H. 6. Fitz. Grants 91. So if the king grant to me the wardship of I. S. the son and heir of I. S. when it falleth; because an action of covenant lieth not against the king, I shall have the thing myself in interest. But if I let land to I. S. rendering a rent with condition of re-entry, and I. S. be attainted, whereby the lease comes to the king, now the demand upon this land is gone, which should give me benefit of re-entry, and yet I shall not have it reduced without demand; and the reason 7 H. 6. 40. of difference is because my condition in this case is not taken away in right, but only suspended by the privilege of the possession: for if the king grant the lease over, the condition is revived as it was. 45 Ed. 3. 10. age: for neither can there be an apportionment But if I devise land by the statute 41 El. 3. 10. Le contrary in Martin fuit resoli Also, if my tenant for life grant his estate to the king, now if I will grant my reversion over, the king is not compellable to atturn, therefore, it shall pass by grant, by deed without atturn-fee, and feoffee dieth seised, this de- pa. 32 Eliz. ment. 9 Ed. 2. Fitz. 19. So if my tenant for life be, and I Atturnments, grant my reversion pur autre vie, and the grantee die, living cestui que vie, now the privity between tenant for life and me is not restored, and I have no tenant in esse to atturn; therefore I may pass my reversion without atturnment. Quod nota. So if I have a nomination to a church, and another hath the presentation, and the presentation comes to the king, now because the king cannot be attendant, my nomination is turned to an absolute patronage. 6 Ed. 6. Dy. 72.* So if a man be seised of an advowson, and take a wife, and after title of dower given, he join in impropriating the church, and dieth; now because the feme cannot have the turn, because of the perpetual incumbency, she shall have all the turns during her life; for it shall not be disimpropriated to the benefit of the heir contrary to the grant of tenant in fee-simple. Trott's case, scent bindeth, and there shall not be a perpetual in Com. Banco, ib. vide 7. R. 2. and Pa. I. Jac. Scire fac. 3. Finchden. But note, that the law by operation 41 E. 3. 14. per and matter in fact will never countervail and supply a title grounded upon a matter of record; and therefore if I be entitled unto a writ of error, and the land descend unto me, I shall never be remitted, no more shall I be unto an attaint, except I may also have a writ of right. So if upon my avowry for services, 25 H. 8. my tenant disclaim where I may have Dy. 1. 7. a writ of right as upon disclaimer, if the land after descend to me, I shall never be remitted. REGULA X. vel personæ. But if a man grant the third presentment to I. S. and his heirs, and impropriate the advowson, Verba generalia restringuntur ad habilitatem rei now the grantee is without remedy, for he took his grant subject to that mischief at the first: and therefore, it was his laches, and therefore not like the case of the dower; and this grant of the third avoidance is not like tertia pars advocationis, or medietas advocationis upon a tenancy in common of the advowson; for if two tenants in common be, and a usurpation be had against them, and the usurper do impropriate, and one of the tenants in common do release, and the other bring his writ of right de medietate advocationis, and recover; now I take the law to be, that because tenants in common ought to join in presentments, which It is a rule that the king's grants shall not be taken or construed to a special intent; it is not so with the grants of a common person, for they shall be extended as well to a foreign intent as to a common intent; yet, with this exception, that they shall never be taken to an impertinent or a repugnant intent: for all words, whether they be in deeds or statutes, or otherwise, if they be general and not express and precise, shall be restrained unto the fitness of the matter or person. As if I grant common in omnibus terris meis in D. and I have in D. both open grounds and several, it shall not be stretched *Vide contra, 2 E. 3. fol. 8. Que presentmét del feme l'ad- to my common in several, much less in my gar vowson est deveign disimpropriate a touts jours quel est agree in sur Cok. Rep. 7. fo. 8. a. dens and orchards. Perk. pl. 108. 14 H. 8. 2. So if I grant to a man omnes arbores meas crescentes supra terras meas in D. he shall not have apple trees, nor other fruit trees growing in my gardens or orchards, if there be any other trees upon my grounds. 41 Ed. 3. 6. et 19. So if I grant to I. S. an annuity of ten pounds a year pro consilio impenso et impendendo, if I S. be a physician, it shall be understood of his counsel in physic; and if he be a lawyer, of his counsel in law. So if I do let a tenement to I. S. near by my dwelling-house in a borough, provided that he shall not erect or use any shop in the same without my license, and afterwards I license him to erect a shop, and I. S. is then a miller, he shall not, by virtue of these general words, erect a joiner's shop. 16 Eliz. 337. Dyer. add, because some have sought to weaken the law in that point. So if land descend to the eldest son of a person attainted from his ancestor of the mother held in knight's service, the guardian shall F. N. Br. fo. enter, and oust the father, because the 143. De Droit. law giveth the father that prerogative in respect he is his son and heir; for of a daughter or a special heir in tail he shall not have it: but if the son be attainted, and the father covenant in consideration of natural love to stand seised of land to his use, this is good enough to raise a use, because the privity of a 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 corrupted. 26 E. 337. Dy. So the statute of chantries, that 26 E. 337. Dy. willeth all lands to be forfeited, given So by the statute of 21 H. VIII. the ordinary or employed to a superstitious use, shall not be ought to commit the administration of his goods construed of the glebe lands of parson- that was attainted and purchase his charter of ages: nay farther, if the lands be given pardon, to his children, though born before the to the parson of D. to say a mass in his church | pardon, for it is no question of inheritance: for of D. this is out of the statute, because it shall be if one brother of the half blood die, the 5 Ed. 6. Adm. intended but as augmentation of his glebe; but administration ought to be committed 47. otherwise it had been, if it had been to say a mass to his other brother of the half blood, if there be in any other church than his own. no nearer by the father. So in the statute of wrecks, that willeth that goods wrecked where any live domestical creature remains in the 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 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, hæres est nomen juris, Filius est nomen naturæ: therefore corruption of blood taketh away the privity of the one, that is, of the heir, but not of 36 H. 6. 57,58, other, that is, of the son; therefore if a 21 Ed. 3. 17. 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, for that the privity of a son remaineth: for I admit the law to be, that if the son kill his father or p. 293. Fitz. mother it is petty treason, and that there remaineth so much in our laws Lamb. Jus. crown. 447. So if the uncle by the mother be at- 33 H. 65. tainted, 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 not. 5 Ed. 4. 50. 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 F. N. Br. 82. G. attainted and pardoned, the lord shall Register, fol.87. have aid of his tenants to make him a knight, and it seemeth he shall; for the words of the writ hath filium primogenitum, and not filium et hæredem, and the like writ hath pur file marrier who is no heir. REGULA XII. of the ancient footsteps of potestas patriæ and Receditur à placitis juris, potius quàm injuriæ et natural obedience, which by the law of God is the very instance itself; and all other government delicta maneant impunita. THE law hath many grounds and positive and obedience is taken but by equity, which I learnings, which are not of the maxims and con clusions of reason; but yet are learnings received with the law, 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 lex; and salus populi is contained in the repressing offences by punishment. Fitz. Corone, 23. 6. Stamf. So it is a ground of the law, that the appeal of murder goeth not to the heir 459. Ed. 4. M. where the party murdered hath a wife, lib. 2. fol. 60. nor to the younger brother where there is an elder; yet if the wife murder her husband, because she is the party offendor, 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. Therefore if an advowson be granted Fitz. N. B. 30. to two, and the heirs of one of them, and a 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 As it is a rule that penal statutes Cap. 12. Stamf. life hath no other several action in the law given shall not be taken by equity, and the 2. fol. 125. him, and also that the jointure is not broken, and statute of 1 Ed. VI. enacts that those that are so the tenant in fee-simple cannot bring his writ attainted for stealing of horses shall not have of right alone; therefore rather than he shall be their clergy, the judges conceived, that this did deprived wholly of remedy, and this wrong un-not extend to him that stole but one horse, and punished, he shall join his companion with him, notwithstanding the feebleness of his estate. 27 H. 8. 13. Ed. 3. 31. therefore procured a new act for it, 2 Ed. VI. So if tenant for life and his lessor join in a lease for years, 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 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 mean estate for life, there-offender hath had his right hand before cut off in fore rather than the waste shall be unpunished, they shall join. the wars, 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 no question at all, but if a man had stolen more horses than one, but that he had been within the statute, quia omne majus continet in se minus. REGULA XIII. Non accipi debent verba in demonstrationem falsam 12 Eliz. 21. 23 Eliz. Dy. Dyer, 291. 76. |