18 Eliz.

Sanders'

case,

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 the which the intention of the malefactor levelled, yet the law giveth him no advantage of the error, if another particular ensue of as high a nature.

Therefore if an impoisoned apple be laid in a place to impoison I. S. and I. D. cometh by chance and com. 474. 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 a door open, and come in by night and rob a house, and be taken with the mainour, and breaketh 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 striketh into the eye of him that dischargeth it, and killeth him, he is felo de se, and 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.

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

REGULA XVI.

Mandata licita accipiunt strictam interpretationem, sed illicita latem et extensivam.

In the committing of lawful authority to another, a man may limit it as strictly as it pleaseth him, and if

the party authorized do trangress 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 circumstances not pursued.

and

15, 16.
16 El. Dy.

Therefore if I make a letter of attorney to I. S. to 10 H. 7. 19. deliver livery and seisin in the capital messuage, he doth it in another place of the land; or between 337. the hours of two or three, and he doth it after or before; or if I make the charter of feoffment to 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 16 El. Dy. act of the attorney, as to execute the estate, is void; but if I say generally to I. D. whom I mean only to 283. enfeoff, and my attorney make it to his attorney, it shall be intended, for it is a livery to him in law.

But on the other side, if a man command I. S. to rob I. D. on Shooter's-hill, and he doth it on Gadshill; 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 killeth him by violence; in all these cases, although the fact be not performed in circumstance, yet he is accessary nevertheless.

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

And be it that the acts be of a differing degree, and yet of a kind:

As if one bids 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 accesssry to the burglary; for a man cannot condition with an unlawful act, but he must at his peril take heed how he put himself into another man's hands.

337.

38 H.8.D.

62.

But if a man bid one to rob I. S. as he goeth to Stur- 10 Eliz. in bridge-fair, and he rob him in his house, the variance Sanders' seemeth to be of substance, and he is not accessary.

case,

475.

F. N. br. fo. 21.

7 H. 7. 4.

3 H. 6.

REGULA XVII.

De fide et officio judicis non recipitur quæstio; sed de scientia, sive sit error 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. S. Fitz. Ass. offered to plead a sufficient bar, the court refused it, and drove me from it, this error shall not be allowed.

S.

2 M. Dy.

114.

1 Mar. B.

But the greatest doubt is where the court doth determine of the verity of the matter in fact; so that it is rather in point of trial than in point of judgment, whether it shall be examined in error.

As if an appeal of maim be brought, and the court, 28 Ass. M. by the assistance of the chirurgeons, do judge it to be a maim, whether the party grieved may bring a writ of error; and I hold the law to be he cannot.

15.

21 H. 7. 40. 33.

8 H. 4. 3.

89.

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 to be 1 Mar. Dy. taken upon these fees, this issue shall be tried by the 3 Mar. Dy. Judges by way of examination; and if they determine it for the plaintiff, and he have judgment to recover arrearages accordingly, the defendant can bring no writ of error of this judgment, though the fees in truth be other.

163.

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.

So if nul tiel record be pleaded, which is to be 39 Ass. 9. tried by the inspection of the record, and judgment 5 Ed. 4. 3. be thereupon given, no error lies.

19 H. 6.

So if in an assize the tenant saith, he is counte de 9 H. 7.2. Dale, et nient rosme counte, in the writ, this shall be 52. tried by the records of the chancery, and upon judg

ment given no error lieth.

24.

So if a felon demand his clergy, and read well and 22 Ass. pl. distinctly, and the court who is judge, thereof do put 19 Ed. 4. him from his clergy wrongfully, error shall never be 6. brought upon the attainder.

21.

So if upon judgment given upon confession or de- 9 Ass. 8. fault, and the court do assess damages, the defendant F. N. Br. shall never bring a writ of error, though the damages be outrageous.

22 Ass. 99.

11 H. 4.41.

And it seems in the case of maim, and some of the 21 H. 7. other cases, that the court may dismiss themselves of 35.40. 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 it 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 41 Ass. 29. the court should be peremptory as trial by certificate, 7 H. 6. 37. as by the bishop in case of bastardy, or by the marshal of the king, etc. 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.

F. N. Br.

21.

F. N. Br.

21.

And therefore this is a certain rule in errors, 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 upon the record to the contrary.

So when any infant levies a fine, it appeareth not upon the record of the fine that he is an infant, 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 do affirm the fine, the infant, though it be during his infancy, shall never bring a writ of error in parliament upon this judgment; not 2 R. 3. 20. but that error lies after error, but because it doth not appear upon the record that he is now of full age, 9 Ed. 4. 3. therefore it can be no error in fact. And therefore if a man will assign for error that 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.

7 et 8 Eliz.

REGULA XVIII.

Persona conjuncta æquiparatur interesse proprio. THE law hath this 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 in 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 nudum pactum, and no