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. So if two coparceners be, and they lease the land, and 2 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. As 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 Plow. f. 467. pl. 32. 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 46 Ed. 3. f. 31. 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 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." 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. Dy. f. 292. And therefore, if the parish of Hurst do extend into the counties of Wiltshire and pl. 72. 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 [18 Eliz.] case, if the close called Callis 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 [29 Reg.] in tenura I. D. quas perquisivi de I. N. in indentura 1 Omitted in Camb. MS. 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 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. 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 1 Omitted in Camb. MS. |