of natural love to stand seised of the land to his use, this is good enough to raise an use, because the privity of 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 corrupt.

So by the statute of 21 H. VIII. the ordinary ought to commit administration of his goods that was at tainted and purchase his charter of pardon, to his children, though born before the pardon, for it is no question of inheritance: for if one brother of the half blood die, the administration ought to be committed 5 Ed. 6. to his other brother of the half blood, if there be no Adm. 47. nearer by the father.

So if the uncle by the mother be attainted, pardoned, 33 H.6.55. and land descend from the father to the son within

age held in socage, the uncle shall be guardian in so cage; for that savoureth so little of the privity of heir, as the possibility to inherit shutteth out.

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 5 Ed. 4.50. enter for a forfeiture. For although 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 recompence 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 his attainder; for the lord hath them jure naturæ but as the increase of a flock.

Query, Whether if the eldest son be attainted and F. N. Br. pardoned, the lord shall have aid of his tenants to 82. G. Register, make him knight, and it seemeth he shall; for the fol. 87. words of the writ are filium primogenitum, and not filium et hæredem, and the like writ hath pur file marrier who is no heir.

Fitz. N.B.

30.

46 Ed. 3. 21.

27 H. 8.

13.

45 Ed. 3.

3. 22 H. 6.

24.

REGULA XII.

Receditur a placitis juris potius, quam injuriæ et delicta maneant impunita.

THE law hath many grounds and positive learnings, which are not of the maxims and conclusions of reason; but yet are learnings received which the law hath 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.

Therefore if an advowson be granted to two, and the heirs of one of them, and an 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 life hath no other several action in the law given him, and also that the jointure is not broken, and so the tenant in fee-simple cannot bring his writ of right alone; therefore rather than he should be deprived wholly of remedy, and this wrong unpunished, he shall join his companion with him, notwithstanding the feebleness of his estate.

But if lands be given to two, and to the heirs of one of them, and they lease in a præcipe by default, now they shall not join in a writ of right, because the tenant for life hath a several action, namely, a Quod ei deforciat, in which respect the jointure is broken.

So if tenant for life and his lessor join in a lease for years, and the lessee commit waste, they shall join in punishing the waste, and locus vastatus shall go to the tenant for life, and the damages to him in the reversion; and yet an action of waste lieth not for the tenant forlife; but because he in the reversion cannot have it alone, because of the mean estate for life, therefore rather than the waste shall be unpunished, they shall join.

So if two coparceners be, and they lease the land, and one of them die, and hath issue, and the lessee

commit waste, the aunt and the issue shall join in punishing this waste, and the issue shall recover the moiety of the place wasted, and the aunt the other moiety and the entire damages; and yet actio injuriarum moritur cum persona, but in favorabilibus magis attenditur quod prodest, quam quod nocet.

"descent.

So if a man recovers by erroneous judgment, and 20 Ed. hath issue two daughters, and one of them is attainted, 2 Fitz. F. the writ of error shall be brought against both par-16. ceners, notwithstanding the privity fail in the one. Also it is a positive ground, that the accessary in 33 Eliz. felony cannot be proceeded with, until the principal be tried; yet if a man upon subtlety or malice set a madman by some device upon another to kill him, and he doth so; now forasmuch as the madman is excused because he can have no will nor malice, the law accounteth the inciter as principal, though he be absent, rather than the crime shall go unpunished.

rone 459.

So it is a ground in the law, that the appeal of Fitz. Comurder goeth not to the heir where the party mur-Ed. 4. M. dered hath a wife, nor to the younger brother where 28. 6. there is an elder; yet if the wife murder her husband, Stamf. lib. because she is the party offender, 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 positiva, then the law will rather endure a particular offence to escape without punishment, than violate such a rule.

2. fol. 60.

fol. 125.

As it is a rule that penal statutes shall not be taken Cap. 12. by equity, and the statute of 1 Ed. VI. enacts that Stamf. 2. those that are attainted for stealing of horses shall not have their clergy, the judges conceived, that this did not extend to him that stole but one horse, and therefore procured a new act for it 2 Ed. VI. cap. 33. And Plow.467. they had reason for it, as I take the law; for it is not like the case upon the statute of Glocest. that gives an 31. action of waste against him that holds pro termino vitæ vel annorum. It is true, if a man hold but for a year he is within the statute; for it is to be noted, that penal statutes are taken strictly and literally only in

Litt. cap. 46. Ed. 3.

12 Eliz. 2.

23 Eliz.

Dy. 376. 7 Ed. 6. Dy. 56.

the point of defining and setting down the fact and the punishment, and in those clauses that concern them; and not generally in words that are but circumstances and conveyances in putting of the case: and so the diversity; for if the law be, that for such an offence a man shall lose his right hand, and the offender had his right hand cut off in the wars before, he shall not lose his left hand, but the crime shall rather pass unpunished which the law assigned, than 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, he had been within the statute, quia omne majus continet in se minus.

REGULA XIII.

Non accipi debent verba in demonstrationem falsam, quæ competunt in limitationem veram.

THOUGH falsity of addition or demonstration doth no hurt where you give a thing a proper name, yet nevertheless if it stand doubtful upon the words, whether they import a false reference and demonstration, or whether they be words of restraint that limit the generality of the former name, the law will never intend error or falshood.

And therefore if the parish of Hurst do extend into Dyer, 291. the counties of Wiltshire and Berkshire, and I grant my close called Callis, situate and lying in the parish of Hurst in the county of Wiltshire, and the truth is, that the whole close lieth in the county of Berkshire; yet the law is, that it passeth well enough, because there is a certainty sufficient in that I have given it a proper name which the false reference doth not destroy, and not upon the reason that these words, "in the county of Wiltshire," shall be taken to go to the parish only, and so to be true in some sort, and not to the close, and so to be false: For if I had granted omnes terras meas in parochia de Hurst in com. Wiltshire, and I had no lands in Wiltshire but in Berkshire, nothing had past.

But in the principal case, if the close called Callis 9 Ed. 4. 7. had extended part into Wiltshire and part into Berk-21 Ed. 3. shire, then only that part had passed which lay in 18 Eliz. Wiltshire. 29 Reg.

So if I grant omnes et singulas terras meas in tenura I. D. quas perquisivi de I. N. in indentura dimissionis fact' I. B. specificat. If I have land wherein some of these references are true, and the rest false, and no land wherein they are all true, nothing passeth as if I have land in the tenure of I. D. and purchased of I. N. but not specified in the indenture to I. B. or if I have land which I purchased of I. N. and specified in the indenture of demise to I. B. and not in the tenure of I. D.

But if I have some land wherein all these demonstrations are true, and some wherein part of them are true and part false, then shall they be intended words of true limitation to pass only those lands wherein all these circumstances are true.

REGULA XIV.

Licet dispositio de interesse futuro sit inutilis, tamen fieri potest declaratio præcedens quæ sortiatur effectum interveniente novo actu.

THE law doth not allow of grants except there be a foundation of an interest in the grantor; for the law that will not accept of grants of titles, or of things in action which are imperfect interests, much less will it allow a man to grant or incumber that which is no interest at all, but merely future.

But of declarations precedent before any interest vested the law doth allow, but with this difference, so that there be some new act or conveyance to give life and vigour to the declaration precedent.

Now the best rule of distinction between grants and declarations is, that grants are never countermandable, not in respect of the nature of the conveyance on the instrument, though sometimes in respect of the interest granted they are, whereas declarations are evermore countermandable in their natures.

18.