30 (i) 1.Hawk.! P. C. ch. 1. Motes. 436. P.C. 54 in be anfwerable for his mifconduct; for, Malitia fupplet atatem (i). VIII. "" ACTUS ME INVITO FACTUS NON EST MEUS Therefore if a man be under duress of imprifonment, or compulfion by an illegal reftraint of liberty, until he seals a bond, deed, or other writing, he (A) 1. Bl. Co. may plead this durefs and avoid it (k). Soalso thofe who join themselves to rebels for fear of death, and retire as soon as they dare, are no way guilty of 1. Hawk. the offence of high treafon (1); and therefore thofe who fupplied Sir John Oldcastle and his accomplices then in rebellion, with victuals, were acquitted, because it was found to be done pro timore mortis, et quòd recefferunt quàm citò potuerunt (m). But this maxim only applies to crimes fo created by the laws of fociety; and therefore if a perfon kill another, the apprehenfion of fear or force will not excufe him from the guilt of murder (#); and in all cafes, the fear which compels a man to do an unwarrantable action ought to be juft and well-grounded: Talis enim debet effe motus qui cadere poteft in virum confiantem et qui in fe continet mortis periculum et corpo(0) Co. Lit. ris cruciatum (o), or otherwife the act he doeth shall (m) 1.Hale 50. Co. P. C. 10. 4. Bl.Com. 30. Fofter, 14,216. (n) 1.Hale, 50. 162. 2. 253. b. be esteemed his own. If a bond be delivered to. another to the ufe of the obligee, and on its being tendered to him he refufes it, the delivery has loft its force; for it was an act against the confent of the obligee (p). So alfo if a bond be made to a femecovert, and the hufband difagrees to it, the obligor () 5. Co.119. may plead non eft factum, for by the refufal of the Cro. Eliz. 54. hufband the bond is not his deed (q). (p) Dyer, 112. Dyer, 167. 2. Leon. 100. IX. ACTIO PERSONALIS MORITUR CUM Perfonal actions are fuch whereby a man claims a deb, or perfonal duty or damages in lieu thereof; and. 3. Onflow's and likewife whereby a man claims a fatisfaction in damages for fome injuries done to his perfon or property. The former are faid to be founded on contracts; the latter on torts or wrongs. Thofe founded N. p. 2. on contracts are, 1. Account. 2. Affumpfit. Covenant and, 4. Debt. Thofe founded on torts affecting the perfon are, 1. Slander. 2. Malicious profecution. 3. Affault and battery. 4. Falfe imprifonment. 5. Injuries arifing from negligence or folly. 6. Adultery. Thofe founded on torts affecting perfonal property are, 1. Deceipt. 2. Trover. 3. Detinue. 4. Replevin. 5. Refcous. 6. Misbehaviour in office, truft or duty. 7. Cafe for confequential damages. In actions merely perfonal arifing ex delicto, for wrongs actually done or committed by the defendant, as trefpafs, battery and flander, the right of action dies with the perfon; and it fhall never be revived either by or against the executors or other reprefentatives. For neither the executors of the plaintiff have received, nor thofe of the defendant committed, in their own perfonal capacity, any manner of wrong or injury. But in actions arifing ex contractu, by breach of promife and the like, where the right defcends to the reprefentatives of the plaintiff, and thofe of the defendant have affets to anfwer the demand; though the fuits fhall abate by the death of the parties, yet they may be revived by or 3. Bl. Com against the executors, being confidered rather actions 3o2. against the property than the perfon, in which the executors have the fame intereft that their teftator had before. This maxim therefore is not applicaHambly v. ble to every fpecies of personal actions; but is con- Trott, Cowp fined to thofe cafes where the cause of action is a 374. tort, or arifes ex delicto, which are fuppofed to be by force, and against the King's peace; as battery, falfe imprifonment, trefpafs, words, nuifance, obftructing lights, diverting a water-courfe, efcape against See alfo Noy, 5. a theriff, and many other cafes of the like kind; Ray. 71. and in every cafe where the general iffue muft be, Cro. Car- 539. as in trover, NOT GUILTY: for in these cafes the W. Jones, 173: caufe of action upon the face of the record arifes ex Palm. 330. delicto or ex maleficio; and all private criminal inju 9. Co. 87. Savil. 40. (r) Co Lit. 152. (Co. Lit. 154 ries or wrongs, as well as all public crimes, are buried with the offender. ACCESSORIUM NON DUCIT SED SEQUITUR Therefore on a grant of land for life, rendering a certain rent, with the reverfion to another, the rent paffes with the grant of the reverfion, because it is incident to it; but the reverfion would not pafs by a grant of the rent (r). So if land to which common is appendant or appurtenant be recovered in an affife of novel diffeifin, it is atacit recovery of the common alfo (/). So alfo where the tenant in tail of a manor to which an advowfon is appendant makes a feoffment of the manor with the appurtenances, and the feoffee re-infeoff's the tenant in tail, faving to himself the advowson on the death of the tenant in tail, his iffue being remitted to the manor, is confequently remitted to the advowson also, notwithstanding its feverance; for the manor is the principal to which the advowfon is (t) Co. Lit. acceffary (1). 349. b. Thus alfo, in criminal matters, if a fervant inftigate a stranger to kill his mafter, this being murder in the ftranger as principal, of courfe the fervant is acceffary only to the crime of murder; though had he been prefent aiding and affifting, he would have been guilty as principal in petty (x)3.Inft.139. treafon, and the ftranger of murder; for it is a maxim that, Accefforius fequitur naturam fui princiDyer, 128.254. palis; and therefore the acceffory cannot be guilty of 4. Bl.Com. 36. a higher crime than the principal (z). 2. Hawk. P. C. 443. See alfo Win gate's Maxims, p. 221. 66 ACCUSARE NEMO SE DEBET NISI CORAM DEO.” It is faid to be against the law of God, the law of nature, and the law of the land, that any man fhould be obliged to accufe himself upon oath, be(*) See Hardr.fore any Magiftrate or Court of Juftice (r); but this where this maxim feems applicable only where a full difcovery point is delibe- of the truth tends to accufe the party himself of fome rately argued. legal crime; for although every oath is fuppofed to Rep. 139, be 33 be made before God, by calling upon him to take notice of what we fay, and invoking his vengeance if what we fay be falfe; yet, as the Law of England constrains no man to accufe himself of a crime, and confequently impofes every oath of teftimony with this tacit refervation (y), it is in criminal cafes re- () Paley's jected altogether, except when an accomplice is Philofophy, admitted to give evidence against the partners of vol. 1. 193. his crime. The examination, therefore, of a prifoner before a magiftrate, taken upon oath, is void, and cannot afterwards be read in evidence against him in his trial, as his free and voluntary confeffion might have been (z). So alfo, when a bill in equity is (*) Per Gould, inftituted, praying a discovery which may fubject the Chelmsford defendant to pains or penalties, or to fome forfeiture, or affize, 1787, fomething in the nature of a forfeiture, he may, for this in the cafe of caufe, demur to the bill; for it is a general rule, that See alfo 2. no one is bound to anfwer, fo as to fubject himself Hawk. P. C. to punishment, in whatever manner that punishment may arife, or whatever may be the nature of the (a) 2. Vezey, punishment (a). Thus, on the trial of Lord 245 George Gordon for High Treafon, a witnefs being 1. Eq. Ca. Ab. fworn to tell the whole truth, was afked, on the cross Mitford's examination, if he was a Roman Catholic; but the Pleadings, 157 Court ruled, that he was not obliged to answer it, be- (6) Douglas, cause his anfwer might fubject him to penalties (b). 593. XI. " AFFECTIO TUA NOMEN IMPONIT OPERI Juftice, Cath. Bertie. 604. 131. Therefore, although livery and feifin made by one who is before in poffeffion of the land be void, becaufe, Quod femel meum eft amplius meum effe non poteft; yet, if the leffor and leffee come upon the land on purpose to make and take livery, that entry vefts (6) Co. Lit. no poffeffion until livery (c). 491. XII. " ALIQUIS NON DEBET ESSE JUDEX IN Therefore, a prefcription that the lord of a manor 141. 1. Roll. Ab. 492,496. (4) Littleton, to detain them till fine be made to him for the daSect. 212. mage, at his will, is void; because it is against rea(e) 1. Co. Lit. fon, that if wrong be done to any man, he should thereof be his own judge (d). So alfo, where a fine was levied before a fheriff who was a party to the 2.Roll. Ab-92. fine, it was for this caufe reverfed (e); quia non po(f) 1. Salk. teft effe judex et pars. So alfo, if there be an action in the Court of the Mayor and Aldermen upon a 4.Com. Dig. 5. bye-law, where the penalty is given to the Mayor, it is error (f). So alfo, a Juftice of Peace being (4) 8. Co. 18. concerned, an order before him, et aliis fociis fuis, is bad (g). So alfo, the fame perfon cannot be both judge and attorney for the party (b). 398. (g) Salk. 607. 14. Vin. Abr. 573. Hob. 87. 15. (*)Noy'.Max. XII. “ A MAN CANNOT QUALIFY HIS OWN ACT *.” Therefore, if a parfon make a leafe for forty years, and the patron and ordinary confirm the faid demife for twenty years only, yet the confirmation fhall extend to the whole term of forty years (k). (*) 5. Co 81. XIII. " AMBIGUUM PACTUM CONTRA VENDITOREM INTERPRETANDUM EST." An ambiguous deed is to be expounded against the feller. As if tenant in fee fimple grant to any one an estate for life generally, it fhall be conftrued (Plowd.156. an eftate for the life of the grantee (1). For the principle of felf-prefervation will make men careful not to prejudice their own intereft by the too extenfive meaning of their words; and hereby all manner of deceit in any grant is avoided; for men would always affect ambiguous and intricate expreffions, provided they were afterwards at liberty to put their own conftruction upon them. But here a diftinction must be taken between an indenture and a deed poll; for the words of an indenture executed by both parties, are to be confidered as the words of them both; for though delivered as the words of one party, yet they are not his words only, but the other party hath given his confent to every one of them. But in a decd poll executed only by the grantor, they are the words |