19H.6.62.

And therefore if I grant unto you, that if you enter 20 Eliz. into obligation to me of 100%. and after do procure me such a lease, that then the same obligation to be void, and you enter into such obligation unto me, and afterwards do procure such a lease, yet the obligation is simple, because the defeisance was made of that which was not.

27 Ed. 3.

29 Ed. 3.6. 24 Eliz.

13, 14Eliz.

So if I grant unto you a rent charge out of white acre, and that it shall be lawful for you to distrain in all my other lands whereof I am now seised, and which I shall hereafter purchase; although this be but a liberty of distress, and no rent save only out of white acre, yet as to the lands afterwards to be purchased the clause is void.

So if a reversion be granted to I. S. and I. D. a stranger by deed do grant to I. S. that if he purchase the particular estate, he doth atturne to his grantee, this is a void atturnement, notwithstanding he doth afterwards purchase the particular estate.

But of declarations the law is contrary; as if the 20,21 Eliz. disseisee make a charter of feoffment to I. S. and a 25 Eliz. letter of attorney to enter and make livery and seisin, and deliver the deed of feoffment, and afterwards livery and seisin is made accordingly, this is a good feoffment; and yet he had nothing other than in right at the time of the delivery of the charter; but because a deed of feoffment is but matter of declaration and evidence, and there is a new act which is the livery subsequent, therefore it is good in law.

M. 38. et

39 Eliz.

36 Eliz.

So if a man make a feoffment in fee to I. S. upon condition to enfeoff I. N. within certain days, and there are deeds made both of the first feoffment and the second, and letters of attorney accordingly, and both those deeds of feoffment and letters of attorney are delivered at a time, so that the second deed of feoffment and letter of attorney are delivered when the first feoffee hath nothing in the land; and yet if both liveries be made accordingly, all is good.

So if I covenant with I. S. by indenture, that before such a day I will purchase the manor of D. and before the same day I will levy a fine of the same land, and

that the same fine shall be to certain uses which I express in the same indenture; this indenture to lead uses being but matter of declaration, and countermandable at my pleasure, will suffice, though the land be purchased after; because there is a new act to be done, namely, the fine.

But if there were no new act, then otherwise it is; 25 Eliz. as if I covenant with my son in consideration of natu- 37 Eliz. ral affection, to stand seised to his use of the lands which I shall afterwards purchase, and I do afterwards purchase, yet the use is void: and the reason is, because there is no act, nor transmutation of possession following to perfect this inception; for the use must be limited by the feoffor, and not by the feoffee, and he had nothing at the time of the covenant.

So if I devise the manor of D. by special name, of which at that time I am not seised, and after I purchase it, except I make some new publication of my will, this devise is void; and the reason is, because that my death, which is the consummation of my will, is the act of God, and not my act, and therefore no such new act as the law requireth.

But if I grant unto I. S. authority by my deed to demise for years the land whereof I am now seised, or hereafter shall be seised; and after I purchase lands, and I. S. my attorney doth demise them: this is a good demise, because the demise of my attorney is a new act, and all one with a demise by myself.

But if I mortgage land, and after covenant with 21 Eliz. I. S. in consideration of money which I receive of him, that after I have entered for the condition broken, I will stand seized to the use of the same I. S. and I enter, and this deed is enrolled, and all within the six months, yet nothing passeth, because the enrolment is no new act, but a perfective ceremony of the first deed of bargain and sale; and the law is more strong in that case, because of the vehement relation which the enrolment hath to the time of the bargain and sale, at what time he had nothing but a naked condition.

So if two joint-tenants be, and one of them bargain 6 Ed.6. Br. and sell the whole land, and before the enrolment his

18 Eliz. Sanders case,

companion dieth, nothing passeth of the moiety ac crued unto him by survivor.

REGULA XV.

In criminalibus sufficit generalis malitia intentionis cum facto paris gradus.

ALL crimes have their conception in a corrupt intent, and have their consummation and issuing in some particular fact; which though it be not the fact at the which the intention of the malefactor levelled, yet the law giveth him no advantage of the error, if another particular ensue of as high a nature.

Therefore if an impoisoned apple be laid in a place to impoison I. S. and I. D. cometh by chance and com.474. eateth it, this is murder in the principal that is actor, and yet the malice in individuo was not against I. D.

Cr J. peace, fo.

30.

Cr. J.

So if a thief find a door open, and come in by night and rob an house, and be taken with the mainour, and breaketh a door to escape, this is burglary; yet the breaking of the door was without any felonious intent, but it is one entire act.

So if a caliver be discharged with a murderous intent at I. S. and the piece break and striketh into the eye of him that dischargeth it, and killeth him, he is felo de se, and yet his intention was not to hurt himself; for felonia de se and murder are crimina paris gradus. For if a man persuade another to kill himself, and be present when he doth so, he is a murderer.

But query, if I, S. lay impoisoned fruit for some peace, fol. other stranger his enemy, and his father or master 18, 19. come and eat it, whether this be petty treason, because it is not altogether crimen paris gradus?

REGULA XVI.

Mandata licita accipiunt strictam interpretationem, sed illicita latam et extensivam.

IN the committing of lawful authority to another, a man may limit it as strictly as it pleaseth him, and if

the party authorised do transgress his authority, though it be but in circumstance expressed, it shall be void in the whole act.

But when a man is author and mover to another to commit an unlawful act, then he shall not excuse himself by circumstances not pursued.

Therefore if I make a letter of attorney to I. S. to 10 H.7.19. deliver livery and seisin in the capital messuage, and 15, 16. 16 El. Dy. he doth it in another place of the land; or between 337. the hours of two or three, and he doth it after or before; or if I make the charter of feoffment to I. D. and I. B. and express the seisin to be delivered to I. D. and my attorney deliver it to I. B. in all these cases the 16 El. Dy. act of the attorney, as to execute the estate, is void; 337. 11 El. Dy. but if I say generally to I. D. whom I mean only to 283. enfeoff, and my attorney make it to his attorney, it 38 H.8.D. shall be intended, for it is a livery to him in law.

But on the other side, if a man command I. S. to rob I. D. on Shooters-hill, and he doth it on Gadshill; or to rob him such a day, and he doth it the next day; or to kill I. D. and he doth it not himself but procureth I. B. to do it; or to kill him by poison, and he killeth him by violence; in all these cases, although the fact be not performed in circumstance, yet he is accessary nevertheless.

But if it be to kill I. S. and he kill I. D. mistaking him for I. S. then the acts are distant in substance, and he is not accessary.

62.

And be it that the acts be of a differing degree, and yet of a kind:

As if one bids I. S. to pilfer away such a thing out of a house, and precisely restrain him to do it some time when he is gotten in without breaking of the house, and yet he breaketh the house; yet he is accessary to the burglary; for a man cannot condition with an unlawful act, but he must at his peril take heed how he put himself into another man's hands.

But if a man bid one to rob I. S. as he goeth to Stur- 10 Eliz. in bridge-fair, and he rob him in his house, the variance Sanders seemeth to be of substance, and he is not accessary. 475.

case,

F. N. br. fo. 21.

7 H. 7.4.

3 H. 6. Fitz. Ass. 3.

2 M. Dy.

114.

1 Mar. B.

REGULA XVII.

De fide et officio judicis non recipitur quæstio; sed de scientia, sive sit error juris sive facti.

THE law doth so much respect the certainty of judgments, and the credit and authority of judges, as it will not permit any error to be assigned that impeacheth them in their trust and office, and in wilful abuse of the same; but only in ignorance, and mistaking either of the law or of the case and matter in fact.

And therefore if I will assign for error, that whereas the verdict passed for me, the court received it contrary, and so gave judgment against me, this shall not be accepted.

So if I will alledge for error, that whereas I. S. offered to plead a sufficient bar, the court refused it, and drove me from it, this error shall not be allowed.

But the greatest doubt is where the court doth determine of the verity of the matter in fact; so that it is rather in point of trial than in point of judgment, whether it shall be examined in error.

As if an appeal of maim be brought, and the court, 28 Ass. M. by the assistance of the chirurgeons, do judge it to be a maim, whether the party grieved may bring a writ of error; and I hold the law to be he cannot.

15.

21 H. 7. 40. 33.

8 H. 4. 3.

89.

So if one of the prothonotaries of the common pleas bring an assize of his office, and alledge fees belonging to the same office in certainty, and issue to be 1 Mar.Dy. taken upon these fees, this issue shall be tried by the judges by way of examination, and if they determine it for the plaintiff, and he have judgment to recover arrearages accordingly, the defendant can bring no writ of error of this judgment, though the fees in truth be other.

163.

8 H. 6. 23.

So if a woman bring a writ of dower, and the 2 El. 285. tenant plead her husband was alive, this shall be tried Dy. 43 Ass.26. by proofs and not by jury, and upon judgment given 41 Ass. 5. on either side no error lies.