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 regula rationales, and not positive, then the law will rather endure a particular offence to escape without punishment, than violate such a rule.

fol. 125.

Plow. 467.

Litt. cap. 46.
Ed. 3. 31.

As it is a rule that penal statutes shall not be taken by Cap. 12. equity, and the statute of 1 Ed. VI. enacts that those that Stamf. 2. 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 do 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 before cut off in the wars, 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, but that 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 not hurt where you give the thing the 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 falsehood.

23 Eliz.

And, therefore, if the parish of Hurst do extend into the 12 Eliz. 21. counties of Wiltshire and Berkshire, and I grant my close Dyer, 291. called Callis, situate and lying in the parish of Hurst in the Dy. 376. county of Wiltshire, and the truth is, that the whole close 7 Ed. 6.

Dy. 56.

9 Ed. 4. 7.

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 had 21 Ed. 3. 18. extended part into Wiltshire and part into Berkshire, then only that part had passed which lay in Wiltshire.

18 Eliz.

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 Ì. 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 those circum

stances are true.

REGULA XIV.

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 evermore are countermandable in their natures.

And therefore if I grant unto you, that if you enter into 29 Eliz. an obligation to me of one hundred pounds, and after do 19 H. 6. 62. 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 defeisance was made of that which was not.

So if I grant unto you a rent charge out of white acre, 27 Ed. 3. 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 29 Ed. 3. 6. by his deed do grant to I. S. that if he purchase the parti- 24 Eliz. cular estate, he will atturne to the grant, this is a void atturnment, notwithstanding he doth afterwards purchase the particular estate.

25 Eliz.

But of declarations the law is contrary; as if the dis- 13, 14 Eliz. seisee make a charter of feoffment to I. S. and a letter of 20, 21 Eliz. 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 no other thing than a 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 M. 38. et is the livery subsequent, therefore it is good in law.

39 Eliz.

So if a man make a feoffment to I. S. upon condition to enfeoff I. N. within certain days, and there are deeds 36 Eliz. 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 letters of attorney are delivered when the first feoffee had 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 suf

25 Eliz. 27 Eliz.

Com. Plowd.
Rigden's

case.

21 Eliz.

6 Ed. 6. Br.

fice, though the land be purchased after; because there is a new act to be done, viz. the fine.

But if there were no new act, then otherwise it is; as if I covenant with my son in consideration of natural love, to stand seised unto his use of the lands which I shall 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 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 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 the 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 away, 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.

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 inten

tion 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 18 Eliz. poison I. S. and I. D. cometh by chance and eateth it, this Sander's case, is murder in the principal that is actor, and yet the malice com. 474. in individuo was not against I. D.

30.

So if a thief find the door open, and come in by night and Cr. J. peace, 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 Cave. 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.

18, 19.

But quære, if I. S. lay impoisoned fruit for some other Cr. Just. stranger his enemy, and his father or mother come and eat peace, fol. 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 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 monitor 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 deliver 10 H. 7. 19. livery and seisin in the capital messuage, and he doth it in 15, 16. 16 El. Dy. another place of the land; or between the hours of two and 337. three, and he doth it after or before; or if I make a charter of feoffment to I. D. and I. B. and express the seisin to be 16 El. Dy. delivered to I. D. and my attorney deliver it to I. B. in all 337, 11 El. Dy. these cases the act of the attorney, as to execute the estate, 283. is void; but if I say generally to I. D. whom I mean only 38 H. 8. 68. to enfeoff, and my attorney make it to his attorney, it shall Dy. be intended, for it is a livery to him in law.