Page images

27 El. 3.

9 E 1. 4.7.

29 Ed. 3.6

18 Elia

29 Reg.

25 Eliz.

M. 38. et

and the truth is, that the whole close lieth in the me such a lease, that then the same obligation county of Berkshire; yet the law is, that it shall be void, and you enter into such an obligapasseth well enough, because there is a certainty tion unto me, and afterwards do procure such a sufficient in that I have given it a proper name lease, yet the obligation is simple, because the which the false reference doth not destroy, and defeisance was made of that which was not not upon the reason that these words, “in the So if I grant unto you a rent charge county of Wiltshire,” shall be taken to go to the out of white acre, and that it shall be parish only, and so to be true in some sort, and lawful for you to distrain in all my other lands not to the close, and so to be false: for if I had whereof I am now seised, and which I shall heregranted omnes terras meas in parochia de Hurst in after purchase; although this be but a liberty of com. Wiltshire, and I had no lands in Wiltshire distress, and no rent, save only out of white acre, but in Berkshire, nothing had past.

yet as to the lands afterwards to be purchased the But in the principal case, if the close clause is void. E1. 3 is called Callis had extended part into So if a reversion be granted to I. S.

Wiltshire and part in Berkshire, then and I. D. a stranger by his deed do 24 Eliz only that part had passed which lay in Wiltshire. grant to I. S. that if he purchase the particular

So if I grant omnes et singulas terras estate, he will atturne to the grant, this is a void

meas in tenura 1. D. quas perquisivi de atturnment, notwithstanding he doth afterwards 1. N. in indentura dimissionis facť 1. B. specificat. purchase the particular estate. If I have land wherein some of these references But of declarations the law is conare true, and the rest false, and no land wherein trary; as if the disseisee make a char- 20, 21 Eliz. they are all true, nothing passeth: as if I have ter of feoffment to I: S. and a letter of land in the tenure of I. D. and purchased of I. N. attorney to enter and make livery and seisin, and but not specified in the indenture to I. B. or if I deliver the deed of feoffment, and afterwards have land which I have purchased of I. N. and livery and seisin is made accordingly, this is a specified in the indenture of demise to I. B. and good feofiment; and yet he had no other thing not in the tenure of I. D.

than a right at the time of the delivery of the But if I have some land wherein all these de- charter; but because a deed of feoffment is but monstrations are true, and some wherein part of matter of declaration and evidence, and them are true and part false, then shall they be there is a new act which is the livery 39 Eliz intended words of true limitation to pass only subsequent, therefore it is good in law. those lands wherein all those circumstances are So if a man make a feofsment to I. S. upon con

dition to enfeoff I. N. within certain

days, and there are deeds made both of REGULA XIV.

the first feoffment and the second, and letters of

attorney accordingly, and both those deeds of Licet dispositio de interesse futuro sit inutilis, tamen feoffment and letters of attorney are delivered at potest fieri declaratio præcedens quæ sortiatur ef- a tiine, so that the second deed of feoffment and fectum interveniente novo actu.

letters of attorney are delivered when the first The law doth not allow of grants except there feoffee had nothing in the land; and yet if both be a foundation of an interest in the grantor; for liveries be made accordingly, all is good. the law that will not accept of grants of titles, or So if I covenant with I. S. by indenture, that of things in action which are imperfect interests, before such a day I will purchase the manor of much less will it allow a man to grant or encum- D. and before the same day I will levy a fine of ber that which is no interest at all, but merely the same land, and that the same fine shall be to future.

certain uses which I express in the same indenBut of declarations precedent before any inte- ture ; this indenture to lead uses being but matter rest vested the law doth allow, but with this dif- of declaration, and countermandable at my pleaference

, so that there be some new act or convey- sure, will suffice, though the land be purchased ance to give life and vigour to the declaration after; because there is a new act to be done, viz. precedent.

the fine. Now the best rule of distinction between grants But if there were no new act, then and declarations is, that grants are never counter- otherwise it is ; as if I covenant with mandable, not in respect of the nature of the con- my son in consideration of natural love, to stand veyance or instrument, though sometime in re- seised unto his use of the lands which I shall spect of the interest granted they are, whereas afterwards purchase, yet the use is void : and the declarations evermore are countermandable in reason is, because there is no new act, nor trans

mutation of possession following to perfect thig And therefore if I grant unto you, 20 Eliz.

inception; for the use must be Amited by the that if you enter into an obligation to 19 4. &. 62. feoffor, and not the feoffee, and he had nothing at the of one hundred pounds, and after do procure the time of the covenant.


36 Eliz.

25 Eli: 27 Eliz.

their natures.

Com. Plowd.

Cr. Jost.

21 Eliz.

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10 H. 7.19

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16 El. Dy. 337.

6 Ed. 6. Br.

So if I devise the manor of D. by se, and murder are crimina paris gradus. For if Rigdeu's case. special name, of which at that time I a man persuade another to kill himself, and be am not seised, and after I purchase it, except I present when he doth so, he is a murderer. make some new publication of my will, this But quære, if I. S. lay impoisoned devise is void; and the reason is, because that my fruit for some other stranger his enemy, peace, fol death, which is the consummation of my will, is and his father or mother come and eat the act of God, and not my act, and therefore no it, whether this be petty treason, because it is not such act as the law requireth.

altogether crimen paris gradus. But if I grant unto I. S. authority by my deed to demise for years the land whereof I am now

REGULA XVI. seised, or hereafter shall be seised; and after I purchase the lands, and I. S. my attorney doth Mandała licita recipiunt strictam interpretationem demise them: this is a good demise, because the

sed illicita lutam et extensam. demise of my attorney is a new act, and all one In committing of lawful authority to another, a with a demise by myself.

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 ex-
ney 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 But when a man is author and monitor to
seised to the use of the same I. S. and I enter, and another to commit an unlawful act, then he shall
this deed is enrolled; and all within the six not excuse himself by circumstances not pursued,
months, yet nothing passeth away, because this Therefore if I make a letter of attorney
enrolment is no new act, but a perfective cere- to I. S. to deliver livery and seisin in 15,16
mony of the first deed of bargain and sale; and the capital messuage, and he doth it
the law is more strong in that case, because of the in another place of the land; or between the
gehement relation which the enrolment hath to hours of two and three, and he doth it after or
the time of the bargain and sale, at what time he before; or if I make a charter of feofsment to I. D.
had nothing but a naked condition.

and I. B. and express the seisin to be
So if two joint tenants be, and one delivered to I. D. and my attorney de- . 2

of them bargain and sell the whole liver it to J. B. in all these cases the Dx.
land, and before the enroiment his companion act of the attorney, as to execute the estate, is
dieth, nothing passeth of the moiety accrued unto void; but if I say generally to 1. D. whom I mean
him by survivor.

only to enfeoff, and my attorney make it to his

attorney, it shall be intended, for it is a livery to REGULA XV.

him in law.

But on the other side, if a man comIn criminalibus sufficit generalis malitia intentionis mand I. S. to rob I. D. on Shooters. case, com 173 cum facto paris gradus.

hill, and he doth it on Gad's-hill; or to rob him All crimes have their conception in a corrupt such a day, and he doth it not himself but prointent, and have their consummation and issuing cureth I. B. to do it; or to kill him by poison, in some particular fact; which though it be not and he doth it by violence; in all these cases, the fact at which the intention of the malefactor notwithstanding the fact be not executed, yet he levelled, yet the law giveth him no advantage of is accessory nevertheless. that error, if another particular ensue of as high a But if it be to kill I. S. and he killeth nature.

I. D. mistaking him for I. S. then the Therefore if an impoisoned apple be acts are distant in substance, and he is not acceslaid in a place to poison I. S. and I. D. sory.

cometh by chance and eateth it, this is And be it that the facts be of differing degrees,
murder in the principal that is actor, and yet the and yet of a kind.
malice in individın was not against I. D.

As if a man bid I. S. to pilfer away such things
So if a thief find the door open, and out of a house, and precisely restrain him to do it

come in by night and rob a house, and sometimes when he is gotten in without breaking be taken with the manner, and break a door to of the house, and yet he breaketh the house ; yet escap, this is burglary; yet the breaking of the he is accessory to the burglary; for a man cannot door was without any felonious intent, but it is condition with an unlawful act, but he must at one entire act.

his peril take heed how he putteth himself into So if a caliver be discharged with a murderous another man's hands. intent at I. S. and the piece break and strike into But if a man bid one rob I. S. as he 18 Eliz. in San

the eye of him that dischargeth it, and goeth to Sturbridge-fair, and he rob done pain

kileth him, he is felo de se, and yet his him in his house, the variance seems intention was not to hurt himself; for felonia del to be of substance, and he is not accessory.

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18 EL Sander's


18 Eliz. Sander's case.

com. 474.

Cr. J. Peace, 30.


E. 21.
7 H. 7.

21 Ass. 24.

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7 H. 6. 37.

3 H. 6. Ass. 3.

2 M. Dy. 114.

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21 H. 7. 40.35.

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& H. 4. 3.


And it seemeth in the case of maim, and some

other cases, that the court may dismiss themDe fide et officio judicis non recipitur quæstio s sed selves of discussing the matter by examination, de scientia, sive error sit juris sive facti.

and put it to a jury, and then the party grieved The law doth so much respect the certainty of shall have his attaint; and therefore it seemeth judgment, and the credit and authority of judges, that the court that doth deprive a man of his as it will not permit any error to be assigned that action, should be subject to an action; but that impeacheth them in their trust and office, and in notwithstanding the law will not have, as was wilful abuse of the same; but only in ignorance, said in the beginning, the judges called in quesand mistaking either of the law or of the case and tion in the point of their office when they undermatter in fact.

take to discuss the issue, and that is the true And therefore if I will assign for reason : for to say that the reason of these cases

error, that whereas the verdict passed should be, because trial by the court for me, the court received it contrary, and so gave should be peremptory as trial by certi- 14.4.4. judgment against me, this shall not be accepted. ficate, (as by the bishop in case of

So if I will allege for error, that bastardy, or by the marshal of the king, &c.) the

whereas I. S. offered to plead a suffi- cases are nothing alike; for the reason of those cient bar, the court refused it, and drave me from cases of certificate is, because if the court should it, this error shall not be allowed.

not give credit to the certificate, but should re-exBut the greatest doubt is where the amine it, they have no other mean but to write

court doth determine of the verity of | again to the same lord bishop, or the same lord the matter in fact; so that is rather a point of marshal, which were frivolous, because it is not trial than a point of judgment, whether it shall be to be presumed they would differ from their re-examined in error.

former certificate; whereas in these other cases As if an appeal of maim be brought, of error the matter is drawn before a superior * As pl, 15. and the court, by the assistance of the court, to re-examine the errors of an inferior court:

chirurgeons, adjudge it to be a maim, and therefore the true reason, as was said, that to whether the party grieved may bring a writ of examine again that which the court had tried error; and I hold the law to be he cannot. 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. Dr. so in certainty, and issue is taken upon the tenant at the time of the judgment given, 5 Mar. Dj. 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 de- is an infant, therefore it is an error in fact, and fendant can bring no writ of error of this judgment, shall be tried by inspection during nonage. though the fees in truth be other.

But if a writ of error be brought in the King's So if a woman bring a writ of dower, Bench of a fine levied by an infant, and the court 12 DF. and the tenant plead her husband was by inspection and examination doth affirm the

alive, this shall be tried by proofs and fine, the infant, though it be during his infancy,

not by jury, and upon judgment given shall never bring a writ of error in the Parliament on either side no error lies.

upon this judginent; not but that error So if nultiel record be pleaded, which lies after error, but because it doth now is to be tried by the inspection of the appear upon the record that he is now of full age,

record, and judgment be thereupon therefore it can be no error in fact. And given, no error lieth.

therefore if a man will assign for error So if in the assize the tenant saith, that fact, that whereas the judges gave 19 E4. 4.6. he is Counte de dale, et nient nosme judgment for him, the clerks entered it in the roll counte, in the writ, this shall be tried by the against him, this error shall not be allowed ; and records of the Chancery, and upon judgment given yet it doth not touch the judges but the clerks : but no error lieth.

the reason is, if it be an error, it is an error in fact;
So if a felon demand his clergy, and read well and you shall never allege an error in fact con.
and distinctly, and the court who is judge thereof trary to the record.
do put him from his clergy wrongfully, error shall
never be brought upon this attainder.

So if upon judgment given upon con-
F. N. Br. 21. fession for default, and the court do

Persona conjuncta æquiparatur interesse proprio. assess damages, the defendant shall never bring The law hath that respect of nature and cona writ, though the damage be outrageous.

junction of blood, as in divers cases it comparesh

F. N. Br. 21.

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H.6 23.

41 Ass. 5.
$9 As..

2 R, 3. 20.

9H 1. 2.
19 H. 6. 12.

F. N. Br. 21.

22 Ass, pl. 24.

9 Ed. 4. 3.

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7 et 8 Eliz

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19 Ed. 4. 5. 19 E 1. 4. 22. 22 H. 6. 35.

22 11. 6. 5.
20 H. 6.
14 H. 6. 6.

14 H. 7. 2.
14 et 15 EL.
21 EJ. 4. 75.
Com. 4. 25.

28 Ed. 3.

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and matcheth nearness of blood with considera- | This clausula derogatoria is by the common tion of profit and interest; yea, and in some cases practical term called clausula non obstante, de fuo alloweth of it more strongly.

turo esse, the one weakening and disannulling any Therefore if a man covenant, in con- matter past to the contrary, the other any matter

sideration of blood, to stand seised to to come; and this latter is that only whereof we the use of his brother, or son, or near kinsman, a speak. use is well raised of this covenant without trans- The clausula de non obstante de futuro, the law mutation of possession; nevertheless it is true, judgeth to be idle and of no force, because it doth that consideration of blood is not to ground a per- deprive men of that which of all other things is sonal contract upon ; as if I contract with my son, most incident to human condition, and that is that in consideration of blood I will give unto him alteration or repentance. such a sum of money, this is a nudum pactum, and Therefore if I make my will, and in the end no assumpsit lieth upon it; for to subject me to thereof do add such like clause (Also my will is, an action, there needeth a consideration of benefit: if I shall revoke this present will, or declare any but the use the law raiseth without suit or action; new will, except the same shall be in writing, and besides, the law doth match real considera- subscribed with the hands of two witnesses, that tions with real agreements and covenants. such revocation or new declaration shall be utter

So if a suit be commenced against me, ly void; and by these presents I do declare the my son, or brother, I may maintain as

same not to be my will, but this my former will 21 H. 6. 135, 16. well as he in remainder for his interest, to stand] any such pretended will to the contrary

or his lawyer for his fee; and it my notwithstanding; yet nevertheless this clause or

brother have a suit against my nephew any the like never so exactly penned, and although or cousin, yet it is my election to maintain the it do restrain the revocation but in circumstance cause of my nephew or cousin, though the adverse and not altogether, is of no force or efficacy to party be nearer unto me in blood.

fortify the former will against the second; but I So in challenges of juries, challenge may by parole without writing repeal the same of blood is as good as challenge within will and make a new.

distress, and it is not material how far So if there be a statute made that no off the kindred be, so the pedigree can be con- sheriff shall continue in his office above 2014. 9 veyed in a certainty, whether it be of the half a year, and if any patent be made to 28.7.& blood or whole.

the contrary, it shall be void; and if there be any So if a man menace me, that he will clausula de non obstante contained in such patent imprison or hurt in body my father, or to dispense with this present act, that such clause my child, except I make such an obli- also shall be void ; yet nevertheless a patent of

gation, I shall avoid this duresse, as the sheriff's office made by the king, with a non well as if the duresse had been to mine own per- obstante, will be good in law contrary to such son: and yet if a man menace me, by taking statute, which pretendeth to exclude non obstantes

; away or destruction of my goods, this is no good and the reason is, because it is an inseparable

duresse to plead : and the reason is, prerogative of the crown to dispense with politic
because the law can make me repara- statutes, and of that kind; and then the deroga.

tion of that loss, and so it cannot of tory clause hurteth not. the other.

So if an act of Parliament be made, wherein So if a man under the years of there is a clause contained that it shall not be twenty-one contract for the nursing of lawful for the king, by authority of Parliament

, his lawful child, this contract is good, and shall during the space of seven years, to repeal and not be avoided by infancy, no more than if he had determine the same act, this is a void clause, and contracted for his own aliments or erudition.

such act may be repealed within the seven years ;

and yet if the Parliament should enact in the naREGULA XIX.

ture of the ancient lex regia, that there should be

no more Parliaments held, but that the king Non impedit clausula derogatoria, quo minùs ab should have the authority of the Parliament; this

eadem potestate res dissolvantur, à quibus consti- act were good in law, quia potestas suprema seipo tuuntur.

sum dissolvere potest, ligare non potest ; for as it Acts which are in their natures revocable, can. is in the power of a man to kill a man, but it is not by strength of words be fixed or perpetuated; not in his power to save him alive, and to restrain yet men have put in use two means to bind them- him from breathing or feeling; so it is in the selves from changing or dissolving that which power of a Parliament to extinguish or transfer they have set down, whereof one is clausula de- their own authority, but not, whilst the authority rogatoria, the other interpositio juramenti, where- remains entire, to restrain the functions and ex of the former is only pertinent to this present ercises of the same authority. purpose.

So in the 28 of K. H. VIII. chap. 17, there was

15 H. 6. 17. 39 11. 6. 50. 21 Ed. 4, 13.

H. 6. 21. 15 Ed. 4. I.

89 H. 6. 91. 7 Ed. 4. 21. 20 Ass. 14.

Perk. 4.
D. cap. 28.

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14 El, Dy, 313.

P. Comn, 563.

a statute made, that all acts that passed in the at the making of the first will to make some show minority of kings, reckoning the same under the of a new will, which nevertheless his intention years of twenty-four, might be annulled and was should not take place : but this was answered revoked by their letters patents when they came before; for if that clause were allowed to be good

to the same years; but this act in the until a revocation, then would no revocation at all

first of K. Ed. VI, who was then be- be made, therefore it must needs be void by opetween the years of ten and eleven, cap. 11, was ration of law at first. Thus much of clausula

repealed, and a new law surrogate in derogatoria.

place thereof, wherein a more reasonable liberty was given; and wherein, though

REGULA XX. other laws are made revocable according to the provision of the former law with some new form Actus inceptus, cujus perfectio pendet ex voluntate prescribed, yet that very law of revocation,

parlium, revocari potest ; si autem pendet ex

voluntate tertiæ personæ, vel ex contigenti, son together with pardons, is made irrevocable and

potest. perpetual, so that there is a direct contrariety between these two laws; for if the former stands, In acts that are fully executed and consum. which maketh all latter laws during the minority mate, the law makes this difference, that if the of kings revocable without exception of any law first parties have put it in the power of a third per. whatsoever, then that very law of repeal is con- son, or of a contingency, to give a perfection to cluded in the generality, and so itself made revo- their acts, then they have put it out of their own cable: on the other side, that law making no reach and liberty; therefore there is no reason doubt of the absolute repeal of the first law, they should revoke them; but if the consumma. though itself were made during the minority, tion depend upon the same consent, which was which was the very case of the former law in the the inception, then the law accounteth it in vain new provision which it maketh, hath a precise to restrain them from revoking of it; for as they exception, that the law of repeal shall not be may frustrate it by omission and non feisance, at repealed.

a certain time, or in a certain sort or circumstance, But the law is, that the first law by the imper- so the law permitti ih them to dissolve it by an tineney of it was void ab initio et ipso facto with express consent befure 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 Therefore if two exchange land by deed, or “the same statute be repealed within the seven without deed, and neither enter, they F. N. Br. 36. years, if the first statute should be good, then the may make a revocation or dissolution 13 11. 7. 13, 14. repeal could not be made thereof within that of the same exchange by mutual consent, so it be tirne; for the law of repeal were a new law, and by deed, but not by parole ; for as much as the that were disabled by the former law; therefore making of an exchange needeth no deed, because it is void in itself, and the rule holds, perpetua l x it is to be perfected by entry, which is a ceremony est, nullam legem humanain ac positivam perpetuam notorious in the nature of a livery; but it cannot ésie ; et clausula quæ abrogationem excludit initio be dissolved but by deed, because it dischargeth non ralet,

that which is but title. 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 is 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 voluntatis 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 contracc, ana reguletur, et per consequens quod scquens dispositio release or surrender of the thing contracted for: as duretur sine voluntate, et sic quod non sit attenden. if lessee for twenty years make a lease for ten years, dum. The sense is, that where a former will is and after he take a lease for five years, yet this made, and after a later will, the reason why, without cannot inure by way of surrender: for a petty an express revocation of the former will, it is by lease derived out of a greater cannot be surrenimplication revoked, is because of the repugnancy dered back again, but inureth only by dissolution between the disposition of the former and the of contract; for a lease of land is but a contract later.

executory from time to time of the profits of the But where there is such a rogatory clause, land, to arise as a man may sell his corn or his there can be gathered no such repugnancy: be- tithe to spring or to be perceived for divers future cause it seemeth that the testator had a purpose years. Vou. lll.-31


F. 36 Eliz.

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