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.

So it is a ground in the law, that the appeal of murder goeth not to the heir where 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.

2

As it is a rule that penal statutes shall not be taken by equity, and the statute of 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 stole but one horse, and therefore procured a new act for it, 2 Ed. VI. cap. 33. And 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 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 case. 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

'Omitted in Camb MS.

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

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.1

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

THOUGH falsity of addition or demonstration doth not hurt where you give a thing a proper name; yet nevertheless if it stand doubtful upon the words, whether they import a false reference or demonstration, or whether they be words of restraint that limit the generality of the former name, the law will never intend error or falsehood.

pl. 72.

And therefore, if the parish of Hurst do extend into the coun- Dy. f. 292. ties 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 [18 Eliz.] had extended part into Wiltshire and part into Berkshire, then only that part had passed which lay in Wiltshire.

So if I grant omnes et singulas terras meas in tenura I. D. [29 Reg.] 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

1 Omitted in Camb. MS.

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 those circumstances are true.

[20 Eliz]
19 H. 6. f. 62.

[27 Ed. 3.]

[24 Eliz.]

REGULA XIV.1

Licet dispositio de interesse futuro sit inutilis, tamen potest fieri 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 or instrument, though sometime in respect of the interest granted they are: whereas declarations are evermore countermandable in their natures.

And therefore if I grant unto you that, if you enter into an obligation to me of one hundred pounds and after do procure me such a lease, that then the same obligation shall be void; and you enter into such an obligation unto me, and afterwards do procure such a lease: yet the obligation is simple, because the defeasance was made of that which was not.

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 his deed do grant to I. S. that, if he purchase the particular estate, he doth atturne to the grant; this is a void atturnment,

Omitted in Camb. MS.

notwithstanding he doth afterwards purchase the particular

estate.

[13, 14 Eliz.

20, 21 Eliz.

25 Eliz.]

But of declarations the law is contrary: as if the disseisee make a charter of feoffment to I. S. and a letter of attorney to enter and make livery of seisin, and deliver the deed of feoffment, and afterwards livery of 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 I et

in law.

39 Eliz ]

Dacre's case.]

So if a man make a feoffment to I. S. upon condition to [37 Eliz. enfeoff I. N. within certain days, and there are deeds made both of the first feoffment and the second, and letters of attorney according, and both these 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; yet if both liveries be made according, 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.

37 Eliz.]

But if there were no new act, then otherwise it is: as if I [25 Eliz. covenant with my son in consideration of natural love 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 new 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.

den.

So if I devise the manor of D. by special name, of which at Brett v. Rigthat time I am not seised, and after I purchase it; except I Plow. 1. 340. 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 act as the law requireth.

[21 Eliz.]

Bro. Tit.Fails
Enroll. pl. 9.

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 I. S. in consideration of money which I receive of him, that after I have entered for the condition broken I will stand seised 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 this 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 and sell the whole land, and before the enrolment his companion dieth; nothing passeth of the moiety accrued unto him by survivor.

Sander's case.
Plow. f. 474.

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 which the intention of the malefactor levelled, yet the law giveth him no advantage of that error if another particular ensue of as high a nature.

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

So if a thief find the door open, and come in the night and rob a house, and be taken with the manner, and break 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 strike into the eye of him that dischargeth it, and killeth him, he is felo de se; and yet his inten