tion 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 quære, if I. S. lay impoisoned fruit for some other stranger his enemy, and his father or mother come and eat it, whether this be petty treason; because it is not altogether crimen paris gradus.

REGULA XVI.

Mandata licita recipiunt strictam interpretationem, sed illicita latam et extensam.

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 circumstance not pursued.

37.

30.

Therefore if I make a letter of attorney to I. S. to deliver Dv. f. 337 pl. livery of seisin in the capital messuage, and he doth it in another place of the land; or between the hours of two and three, and he doth it after or before; or if I make a charter of feoffment to Dy. f. 293. pl. 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 act of the attorney, as to execute the estate, is void: but if I say D5. f. 62. generally to I. D. whom I mean only to enfeoff, and my attorney make it to his attorney, it shall be intended; for it is a livery to him in law.

Plow. f. 475

But on the other side, if a man command I. S. to rob I. D. Sander's case, on Shooters-hill, and he doth it on Gads-hill; 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 doth it by violence; in all these cases, notwithstanding the fact be not executed in circumstance, yet he is accessory nevertheless.

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

accessory.

And be it that the acts be of differing degrees, and yet of a kind; as if a man bid I. S. to pilfer away such a thing out of a

Ibidem.

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 accessory to the burglary: for a man cannot condition with an unlawful act, but he must at his peril take heed how he putteth himself into another man's hands.

But if a man bid one rob I. S. as he goeth to Sturbridge-fair, and he rob him in his house; the variance seemeth to be of substance, and he is not accessory.

F. N. B. fo. 21. B.

7 H. 7. f. 4. pl. 4.

[1 Mar. 5.]

28 Ass. pl. 5.

pl. 58. and

REGULA XVII.1

De fide et officio judicis non recipitur quæstio, sed de scientia, sive error sit 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 allege for error, that whereas I offered to plead a sufficient bar, the court refused it, and drave me from it; this error shall not be allowed.

But the great doubt is, where the court doth determine of the verity of the matter in fact, so that it is rather a point of trial than a point of judgment; whether it shall be re-examined in

error.

As if an appeal of mayhem be brought, and the court, by the 21 H. 7. 40. assistance of chirurgeons, adjudge it to be a maim; whether the party grieved may bring a writ of error: and I hold the law to be he cannot.

f. 33. pl. 30.

So if one of the prothonotaries of the Common Pleas bring an assize of his office, and allege fees belonging to the same office in certainty, and issue be 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

Omitted in Camb. MS.

arrerages according, the defendant can bring no writ of error of this judgment, though the fees in truth be other.

So if a woman bring a writ of dower, and the tenant plead her husband was alive, this shall be tried by proofs and not by jury; and upon judgment given on either side no error lies.

pl. 7. 43 Ass. pl. 41 Ass. pl. 5. 39 Ass. pl. 9.

pl. 25.

So if nul tiel record be pleaded, which is to be tried by the Ed. 4. f. 3. inspection of the record, and judgment be thereupon given; no error lieth.

So if in an assize the tenant saith, he is Count de Dale et nient 22 Ass. pl. 24. nosme Count in the writ; this shall be tried by the records of the Chancery, and upon judgment given no error lieth.

So if a felon demand his clergy, and read well and distinctly, and the court who is judge thereof do put him from his clergy wrongfully, error shall never be brought upon this attainder.

So if upon judgment given upon confession or default the court do assess damages; the defendant shall never bring a writ of error, though the damages be outrageous.

And it seemeth in the case of maim and some other cases, that the court may dismiss themselves of discussing the matter by examination, and put it to a jury, and then the party grieved shall have his attaint; and therefore that the court, that doth deprive a man of his action, should be subject to an action: but, that notwithstanding, the law will not have, as was said in the beginning, the judges called in question in the point of their office when they undertake to discuss the issue. And that is the true reason: for to say that the reason of these cases should be, because trial by the court shall be peremptory as trial by certificate, (as by the bishop in case of bastardy, or by the marshal of the king, &c.); the cases are nothing like; for the reason of those cases of certificate is, because if the court should not give credit to the certificate, but should reexamine it, they have no other mean but to write again to the same lord bishop, or the same lord marshal; which were frivolous, because it is not to be presumed they would differ from their own former certificate; whereas in these other cases of error the matter is drawn before a superior court, to re-examine the errors of an inferior court: and therefore the true reason is, as was said, that to examine again that which the court had tried were in substance to attaint the court.

And therefore this is a certain rule in error: that error in law is ever of such matters as do appear upon record; and error

41 Ass. pl. 29.

7 H. 6. f. 37.

pl. 44.

2 R. 3. f. 20. pl. 49.

p. 12.

F. N. Br. f. 21. B.

in fact is ever of such matters as are not crossed by the record; as, to allege the death of the tenant at the time of the judgment given, nothing appeareth to the contrary upon the record.

So when an infant levies a fine; it appeareth not upon the record that he is an infant; and therefore it is an error in fact, and shall be tried by inspection during nonage.

But if a writ of error be brought in the King's Bench of a fine levied by an infant, and the court by inspection and examination doth affirm the fine; the infant, though it be during his infancy, shall never bring a writ of error in parliament upon this judgment: not but that error lies after error; but because it doth now appear upon the record that he is of full age, therefore it can be no error in fact. And therefore if a man will

9 Ed. 4. f. 3. assign for error in fact, that whereas the judges gave judgment for him, the clerks entered it in the roll against him; this error shall not be allowed: and yet it doth not touch the judges but the clerks; but the reason is, if it be an error, it is an error in fact; and you shall never allege an error in fact contrary to the record.

Plow. f. 303.

REGULA XVIII.

Persona conjuncta æquiparatur interesse proprio.

THE law hath that respect of nature and conjunction of blood, as in divers cases it compareth and matcheth nearness of blood with consideration of profit and interest; yea, and some cases alloweth of it more strongly.

Therefore if a man covenant, in consideration of blood, to stand seised to the use of his brother, or son, or near kinsman, an use is well raised by his covenant without transmutation of possession. Nevertheless it is true, that consideration of blood is naught' to ground a personal contract upon: as if I contract with my son, that in consideration of blood I will give unto him such a sum of money, this is a nudum pactum, and no assumpsit lieth upon it: 2 for to subject me to an action, there needeth a

All the MSS. and early editions I know of have "not." The emendation, which I suppose to be conjectural, appears in the edition of 1778.

For the rest of this paragraph the Camb. MS. has: "the reason whereof may partly be, because in contracts the mutual consideration must execate in both parties at the time, and partly because in contracts of things merely personal the law will not look further than the person; but doth match interests personal with considerations

consideration of benefit; but the use the law raiseth without suit or action. And besides, the law doth match real considerations with real agreements and covenants.

pl. 9. 14.

pl. 30.

So if suit be commenced against me, my son or brother may 19 Ed. 4. f. 35. maintain, as well as he in remainder for his interest, or a lawyer for his fee. So if my brother have a suit against my nephew or cousin, it is at my election to maintain the cause of my nephew or cousin, though the adverse party be nearer unto me in blood. So in challenges of juries, challenge of blood is as good as challenge within distress2, and it is not material how far off the kindred be, so the pedigree can be conveyed in certainty, whether it be of the half blood or whole.

14 H. 7. f. 2.

pl. 6.

Plow. 425,

So if a man menace me, that he will imprison or hurt in body 39 H. 6. E. 51. my father or my child except I make unto him such an obligation, I shall avoid this duresse, as well as if the duresse had been to mine own person: and yet if a man menace me with the taking away or destruction of my goods, this is no good duresse to plead and the reason is, because the law can make me repa- 7 Ed. 4. f. 21. ration of that loss, and so can it not of the other.

pl. 24.
20 Ass. pl. 14.

cap. 28.]

So if a man under the years of twenty-one contract for the [Perk. 4. D. nursing of his lawful child, this contract is good and shall not be avoided by infancy, no more than if he had contracted for his own aliments or erudition.

REGULA XIX.

Non impedit clausula derogatoria, quo minùs ab eadem potestate res dissolvantur, à quibus3 constituuntur.

ACTS which are in their nature revocable cannot by strength of words be fixed and perpetuated. Yet men have put in ure two means to bind themselves from changing or dissolving that which they have set down; whereof the one is clausula derogatoria, the other interpositio juramenti; whereof the former is only pertinent to the present purpose.

This clausula derogatoria is by the common practical term called clausula non obstante, and is of two sorts, de preterito and

personal, and interests of continuance, as uses of lands, with considerations of continuance, as considerations of blood. "

Omitted in Camb. MS.

2 For the phrase see Co. Litt. 157 b. The rest of the paragraph is omitted in Camb. MS.