notwithstanding he doth afterwards purchase the particular

estate.

20, 21 Eliz.

But of declarations the law is contrary: as if the disseisee [13, 14 Eliz. make a charter of feoffment to I. S. and a letter of attorney to 25 Eliz.] 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 M33. 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. Faits

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 Enroll. pl. 9. 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

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 Dy. 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. 283. 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 Dy. 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.

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.

pl. 58. and

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.

26.

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

So if a woman bring a writ of dower, and the tenant plead H. 6. f. 23. her husband was alive, this shall be tried by proofs and not by jury; and upon judgment given on either side no error lies. So if nul tiel record be pleaded, which is to be tried by the 5 Ed. 4. f. 3. inspection of the record, and judgment be thereupon given; no error lieth.

pl. 25.

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. &. f. 37.

p