D. mistaking him 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 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.

Ibidem.

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.

REGULA XVII.1

De fide et officio judicis non recipitur quæstio, sed de scientia, sive error sit juris sive Jacti.

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.

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

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

And therefore if I will assign for error, that whereas the verdict passed for me, the court received it contrary, and so gave judg

ment against me; this shall not be accepted.

So if I will allege for error, that whereas I offered to

1 Omitted in Camb. MS.

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.

[1 Mar. 5.]

21 H. 7. f. 40.

As if an appeal of mayhem be brought, and the court, by the assistance of chirur- 28 Ass. pl. 5. geons, adjudge it to be a maim; whether the pl. 59. and 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 arrerages according, the defendant can bring no writ of error of this judgment, though the fees in truth be other.

this p

Dy. f. 185.

43 Ass. pl. 26.

So if a woman bring a writ of dower, and 8 H. 6. f. 23. the tenant plead her husband was alive, shall be tried by proofs and not by jury; upon judgment given on either side no error lies.

and

41 Ass. pl. 5. 39 Ass. pl. 9.

5 Ed. 4. f. 3.

So if nul tiel record be pleaded, which is to be tried by the inspection of the record, pl. 25. and judgment be thereupon given; no error lieth.

So if in an assize the tenant saith, he is 22 Ass. pt. 24. Count de Dale et nient 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 bę 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.

7 H. 6. f. 37.

pl. 44.

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 41 Ass. pl. 29. 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 re-examine 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 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 2 R. 3. f. 20. because it doth now appear upon the record pl. 49. that he is of full age, therefore it can be no error in fact. And therefore if a man will assign for 9 Ed. 4. f. 3. error in fact, that whereas the judges gave P. N. Br. f. 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.

pl. 12.

21. B.

Plow. f. 303.

REGULA XVIII.

Persona conjuncta equiparatur 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 1 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 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.

19 Ed. 4. f. 35. pl. 9. 14.

14 11. 6. f. 6.

pl. 30.

fee.

So if suit be commenced against me, my son or brother may maintain, as well as he in remainder for his interest, or a lawyer for his So if my brother have a suit against my nephew or cousin, it is at my election to maintain the cause of 1 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.

2 For the rest of this paragraph the Camb. MS. has: "the reason whereof may partly be, because in contracts the mutual consideration must execute 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 personal, and interests of continuance, as uses of lands, with considerations of continuance, as considerations of blood."

3 Omitted in Camb. MS.