in regard of her obedience to the will of her husband: but if baron and feme join in a trespass upon land or otherwise, the action may be brought against them both.

B.

So if an infant within years of discretion, or a mad-B.3.H.7.1. man, kill another, he shall not be impeached thereof: Stamf. 16. but if they put out a man's eye, or do him like corporal hurt, he shall be punished in trespass.

So in felonies the law admitteth the difference of 35 H.6.11, principal and accessary, and if the principal die, or be pardoned, the proceeding against the accessary faileth; but in trespass, if one command his man to beat ano- 17 H.4.19. ther, and the servant after the battery die, yet an action of trespass stands good against the master.

REGULA VIII.

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 a matter or circumstance be subsequent, which laid together with the beginning should seem to draw to it a higher nature, yet the law doth not extend or amplify the offence.

Com: 98.

Therefore if a man be wounded, and the percussor 11H.4.12. 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 striketh 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 compasseth and imagineth the death of one that after cometh to be king of the land, not being any person mentioned within the statute of 21 Ed. III. this imagination precedent is not high treason.

So if a man use slanderous speeches upon a person to whom some dignity after descends that maketh him peer of the realm, yet he shall have but a simple action

28 H. 8. pl. 2.

of the case, and not in the nature of a scandalum magnatum upon the statute.

So if John Stile steal six pence from me in money, and the queen by her proclamation doth raise monies, that the weight of silver in the piece now of six pence 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 inhancing of money cometh before I pay him, I shall satisfy my contract with a six penny piece being 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. 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 or notice of I. S. to his servant for the custody of the same goods, his servant goeth away with them, this is also qut of the same statute.

But note that it is said præteriti delicti; for an accessary before the act is subject to all the contingen18 Eliz. cies pregnant of the fact, if they be pursuances of the com. 175. 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 accessary to the murder, quia in criminalibus præstantur accidentia.

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 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.

And therefore if the heir of the disseisor which is in Lit.pl.683. 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 freehold, or 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 Lit.pl.682lease 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, it is no remitter. Quod nota.

So if the heir of the disseisor infeoff the disseisee and Lit.pl.685. a stranger, and make livery to the stranger, although the stranger die before any agreement or taking of 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 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 the feoffment Lit.pl.665. taken back had been to the first husband and herself, she had been remitted.

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, form and degree as he had the use; but that holdeth place only upon the first vestre of the use: for when the use is 34 H. 8. absolutely once 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 the baron and feme, and lessee for life die, now the feme is remitted, causa qua supra.

67.

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 this 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.

So if the feme be disseised, and intermarry with the disseisor, who makes a lease for life, rendring rent, 6 Ed. 3.17. and dieth, leaving a son by the same feme, and the Cond. 3. son accepts the rent of lessee for life, and then the feme dies, and the lessee for life dies, the son is not remitted; and 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.

28 H. 8.

pl. 207.

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 no remitter, causa qua supra.

And if tenant in tail discontinue for life, and take Lit.pl.636. a surrender of the lessee, now is he remitted and seised again by force of the tail, and yet he cometh in by his own act: but this case differeth from all the 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 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.

But now we do 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 amount to the value of that they laid forth, to themselves in property, and upon a plea of fully 6H.8.pl.3. administered it shall be allowed: and the reason is, Dy. because it may be matter of necessity for the well administring 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 cannot have any 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 money, he may also retain against his com→ panion, if he have notice thereof.

But if there be an overplus of goods, above the 3 Eliz.187. value of that he hath disbursed, then ought he by his pl. 6. . :: claim to determine what goods he doth elect to have in value; or else before such election, if his companion do sell all the goods, he hath no remedy but in the spiritual court; for to say he should be tenant in