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Stamf. 16. .6 E. 4. f. 7. pl. 18.
Stamf. 16 b.
3 H. 7. f. 1. pl. 4.
And therefore the law makes a difference between killing a man upon malice forethought, and upon a present heat: but if I give a man slanderous words, whereby I damnify him in his name and credit, it is not material whether I use them upon sudden choler and provocation or of set malice; but in an action upon the case I shall render damages alike.
So if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course: but if a man be hurt or maimed only, an action of trespass lieth, though it be done against the party's mind and will, and he shall be punished in the same as deeply as if he had done it of malice.
So if a surgeon authorised to practice do, through negligence in his cure, cause the party to die, the surgeon shall not be brought in question of his life; and yet if he do only hurt the wound, whereby the cure is cast back, and death ensues not, he is subject to an action upon the case for his misfeasance.
So if baron and feme be, and they commit felony together, the feme is neither principal nor accessory, in regard of her obedience to the will of her husband: but if baron and feme join in committing a trespass upon land or otherwise, the action may be brought against them both.
So if an infant within years of discretion, or a madman, kill Stamf. 16 b. another, he shall not be impeached thereof: but if he put out a man's eye, or do him like corporal hurt, he shall be punished in trespass.
35 H. 6. f. 11. pl. 18.
Plow. f. 98.
So in felonies the law admitteth the difference of principal and accessory; and if the principal die, or be pardoned, the proceeding against the accessory faileth: but in trespass, if one command his man to beat you, and the servant after the battery die, yet your action of trespass stands good against the master.
Estimatio præteriti delicti ex post facto nunquam crescit. THE law construeth neither penal laws nor penal facts by intendments, but considereth the offence in degree as it standeth at the time when it is committed; so as if any circumstance or matter be subsequent, which laid together with the beginning
1 Omitted in Camb. MS.
2 The rest of the rule is omitted in the Camb. MS.
should seem to draw to it a higher nature, yet the law doth not
extend or amplify the offence.
Therefore if a man be wounded, and the percussor is volun- 11 H. 4. f.12. tarily 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 mortally 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 imagine 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 speeches of a person to 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 scandalum magnatum upon the statute.
1 So if John Stile steal sixpence from me in money, and the Queen by her proclamation doth raise monies, that the weight of silver in the piece now of sixpence should go for twelve pence; yet this shall remain petty larceny, and no 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; this is no felony by the statute of 21 H. VIII., be- [28 H. 8. cause he was not servant at that time.
2 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 or notice 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.
But note that it is said præteriti delicti: for any accessory before the fact is subject to all the contingencies pregnant of the fact, if they be pursuances of the same fact; as if a man com- Plow. f. 475, mand 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.
Omitted in Camb. MS.
2 Omitted in Camb. MS.
Lit, scc. 6 3.
Quod remedio destituitur ipsa re valet, si culpa absit.1
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 fault, it will rather put him in a better degree and condition than in a worse: for if it disable him to pursue his action, or to make his claim, sometimes it will give him the thing itself by operation of law without any act of his own; sometimes it will give him a more beneficial remedy.
2 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 disseisor make a lease for years, the remainder 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, no remitter.3
So if the heir of the disseisor infeoff the disseisee and a stranger, Lit. sec. 685. 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
1 The Camb. MS. has: "cui actio per legem citra culpam suam eripitur, ei benignitas legis largitur rem ipsam." Harl. MS. 6688. gives both forms of the maxims.
2 The Camb. MS. omits all the cases of remitter, and the other cases down to that of the rent charge upon condition, and only has the observation: "This is the reason of a Remitter, because the law taketh away the action and suit which cannot be held against the party himself, and therefore the law without circumstance of recovery putteth him in of hisbest right."
The earliest edition has a Quod nota, and two of the best MS. leave out at the commencement the words, "the heir of; "all of which seems to point to some contemporary doubt about the position here maintained. I am not aware of any distinct authority for it, but it seems implied in Coke's reasoning on Litt. sec. 681., and of Littleton in sec. 682. The disseisee may disagree and it is his own laches to accept. The next marginal reference to Littleton I have retained, because, though it does not lay down Bacon's position, he may well have drawn the inference thence.
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.
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 feoffment from the discontinuee to him 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 Lit. sec. 666. the feoffment taken back had been to the first husband and herself, she had been remitted.
Br. Tit. Re
Yet if the husband discontinue the lands of the wife, and the Plow. f. 111. 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, form, and degree, as he had the use. But that holdeth place only upon the first vester of the use: for when the use is once absolutely executed and vested, then it doth insue merely the nature of possessions; and if the discontinuee had made a feoffment in fee to the use of I. S. for life, the remainder to the use of baron and feme, and lessee for life die; now the feme is remitted, 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 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.
mitter, pl. 49. Dy. f. 54.
So if the feme be disseised, and intermarry with the disseisor, [6 Ed. 3. f. 17. who makes a lease for life, rendering rent, and dieth leaving a son by the same feme, and the son accepts the rent of lessee for life, and then the feme dies, and the lessee for life dies; the son is not remitted: yet the frank tenement was Dy. f. 30. pl. cast upon him by act in law; but because he had agreed to
A note in the first edition denies this to be law, agreeing with Coke in his note on Litt. sec. 671.
be in of the tortious reversion by acceptance of the rent, therefore no remitter.
So if tenant in tail discontinue, and the discontinuee make a lease for life, the remainder to the issue in tail being within age, and at full age the lessee for life surrendereth to the issue in tail, and tenant in tail die, and lessee for life die; yet the issue is not remitted: and yet if the issue had accepted a feoffment within age, and had continued the taking of the profits when he came of full age, and then the tenant in tail had died; notwithstanding his taking of the profits, he had 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 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 Lit. sec. 626. this case differeth from all the other cases; because the dis
Dy. f. 2.
continuance was but particular at first, and the new gained reversion is but by intendment and necessity of law, and, therefore, is knit, as it were ab initio, with a limitation to determine, whensoever the particular discontinuance endeth and the estate cometh back to the ancient right.
To proceed from cases of remitter, which is a great branch of this rule, to other cases:
If executors do redeem goods pledged by their testator with their own money, the law doth convert so much goods as doth amount to the value of that they lay forth to themselves in property; and upon a plea of fully administered it shall be allowed and the reason is, because it may be matter of necessity for the well administering of the goods of the testator and executing of their trust, that they disburse money of their own; for else perhaps the goods would have been forfeited, and he that had them in pledge would not accept other goods but money and so it is a liberty which the law gives them; and then they can have no suit against themselves; and therefore the law gives them leave to retain so much goods by way of allowance.
And if there be two executors, and one of them pay the