service, the guardian shall enter, and oust the father; because the law giveth the father that prerogative in F. N. Br. fo. respect he is his son and heir; for of a daugh147. L. O. R. ter or a special heir in tail he shall not have it but if the son be attainted, and the father covenant in consideration of natural love to stand seised of 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 corrupted.

Bro. Tit.

So1 by the statute of 21 H. VIII. c. 5. the ordinary ought to commit the administration of his goods, that was attainted and purchased his charter of pardon, to his children though born before the pardon : Adm. pl. 47. for it is no question of inheritance; for if one brother of the half blood die, the administration ought to be committed to the other brother of the half blood, if there be no nearer by the father.

So if the uncle by the mother be attainted, and pardoned, and land descend from the father to the son within age held in socage, the uncle shall be guardian in socage 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 enter for a forfeiture: for though 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 recompense is understood for the stain of his blood, which can

1 This and the two following cases are omitted in Camb. MS.

not 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 the attainder; for the lord hath them jure naturæ but as the increase of a flock.

[Register, fol.

Query, Whether, if the eldest son be at- Fitz. N. B. tainted and pardoned, the lord shall have aid f82; of his tenants to make him knight? And it $7. seemeth he shall; for the words of the writ are filium primogenitum, and not filium et hæredem; and the like writ lieth pur file marrier, who is no heir.

REGULA XII.

Receditur à placitis juris potius quàm injuriæ et delicta maneant impunita.

THE law hath many grounds and positive learnings, which are1 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.

30. B. F.

Therefore if an advowson be granted to Fitz. N. B. two and the heirs of one of them, and an usurpation be had, they both shall join in a writ of

1 The Camb. MS. has: "not of the highest rules of reason, legum leges, such as we have here collected."

which are

:

right of advowson; and yet it is a ground in law, that a writ of right lieth of no less estate than of a feesimple 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 shall be deprived wholly of remedy, and this wrong unpunished, he shall join his companion with him, notwithstanding the feebleness of his estate.

6 Ed. 3. f. 21. 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.

27 H. 8. f. 13. pl. 36.

So if tenant for life and his lessor join in a lease for years, and the lessee commit waste, they shall join in punishing this 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 tenant for life: but because he in the reversion cannot have it alone, because of the mesne estate for life, therefore rather than the waste shall be unpunished, they shall join.

1

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

1 This and the following case are omitted in the Camb. MS.

2 I have transposed these words, which in all the editions and MSS. I have seen stand after "and hath issue;" the sense and the authorities require the change. Fitz. N. B. fo. 60. R.

cum persona; but in favorabilibus magis attenditur quod prodest, quam quod nocet.

Fitz. Tit. De

So if a man recovers by erroneous judg- 20 Ed. 2. ment, and hath issue two daughters, and one scent, pl. 16. of them is attainted; the writ of error shall be brought against both parceners notwithstanding the privity fail in the one.

Also it is a positive ground, that the ac- [83 Eliz.]

cessory in felony cannot be proceeded against until the principal be tried; yet if a man upon subtlety and 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, pl. 459.

So it is a ground in the law, that the ap- Fitz. Tit. Copeal of murder goeth not to the heir where Stamf. f. 60. the party murdered hath a wife, nor to the younger brother where there is an elder; yet if the wife murder her husband, 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 positive, then the law will rather endure a particular offence to escape. without punishment than violate such a rule. As2 it is a rule that penal statutes shall not be taken by equity, and the statute of 12. f. 125.

1 Omitted in Camb. MS.

Stamf. cap.

2 For all this paragraph the Camb. MS. has: " Therefore, whereas it is a rule that the penal statutes shall not be taken by equity, if the law be that, for such an offence, a man shall lose his right hand" (and so on as in the text to "extended"): and then adds: "So it is very usual in penal statutes, which have sometimes omitted cases more heinous in the same kind

1 Ed. VI. cap. 12 enacts that those that are attainted for stealing of horses shall not have their clergy, the judges conceived that this did not extend to him that Plow. f. 467. stole but one horse, and therefore procured a new act for it, 2 Ed. VI. cap. 33. And they

Litt. sec. 67. 46 Ed. 3. f. 31. pl. 32.

had reason for it, as I take the law. For it is not like the case upon the statute of Glocest. that gives an 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 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 conveyance in the putting of the And so see the diversity; for if the law be, that for such an offence a man shall lose his right hand, and the offender hath had his right hand cut off in the wars before, he shall not lose his left hand, but the crime shall rather pass without the punishment which the law assigned, than the letter of 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.

case.

than they have provision for, and yet it hath been requisite to make new statutes and not to exceed the letter of the old."