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Prohibition implied by law.

him when required so to do (f); and, by analogy, the persons named in a writ of rebellion, and charged with the execution of it, have a right, at their discretion, to require the assistance of any of the liege subjects of the Crown to assist in the execution of the writ (g).

On the other hand, quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud (h): that which cannot be done directly shall not be done indirectly (i). Of which maxim the following instance will be a sufficient illustration:-If a tenant, under covenant not to "let, set, assign, transfer, or make over" the indenture of lease, give a warrant of attorney to confess judgment to a creditor, for the express purpose of enabling such creditor to take the lease in execution under the judgment, this is in fraud of the covenant, and the landlord, under a clause of re-entry in the lease for breach of the condition, may recover the premises in ejectment from a purchaser under the sheriff's sale. In this case, the tenant could not, by any assignment, underlease, or mortgage, have conveyed his interest to a creditor, and, consequently, he cannot convey it by an attempt of this kind. If the lease had been taken by the creditor under an adverse judgment, the tenant not consenting, it would not have been a forfeiture; but, in the above case, the tenant concurred throughout, and the whole transaction was performed for the very purpose of enabling the tenant to convey his term to the creditor (k).

(f) Foljamb's case, 5 Rep. 116; cited 4 B. N. C. 583; Noy, Max., 9th ed., p. 55.

(g) Miller v. Knox, 4 B. N. C. 574.

(h) 2 Inst. 48.

(i) Co. Litt. 223. b.; Wing. Max., p. 618; per Lord Kenyon, C. J., 8 T. R. 301 see Hughes v. Statham,

4 B. & C. 187, 193; Duke of Marlborough v. Lord Godolphin, cited 2 T. R. 251, 252.

(k) Doe d. Mitchinson v. Carter, 8 T. R. 300; S. C., Id. 57. The maxim, "Quando aliquid prohibetur fieri ex directo, prohibetur et per obliquum," (Wing. Max. p. 618), has, moreover, been applied by the Court

ACCESSORIUM NON DUCIT SED SEQUITUR SUUM PRINCIPALE. (Co. Litt. 152. a.)—It is a rule of law that the incident shall pass by the grant of the principal, but not the principal by the grant of the incident (1).

appendant.

The above maxim is derived from the Roman law, and signifies that the accessary right follows the principal (m); it may be illustrated by the remarks appended to the rule immediately preceding (n), to which the following may be added. Thus, rent is incident to the reversion, and, therefore, by a general grant of the reversion, the rent will pass; though, by the grant of the rent generally, the reversion will not pass: however, by the introduction of special words, the reversion may be granted away, and the rent reserved (o). So, an advowson appendant to a manor is so entirely and Advowson intimately connected with it, as to pass by the grant of the manor, without being expressly mentioned or referred to; and, therefore, if a tenant in tail of a manor with an advowson appendant suffer a recovery, it is not necessary for him to make any express mention of his intention to include the advowson in the recovery: any dealing with the manor, which is the principal, operates on the advowson, which is the accessary, whether expressly named or not. But, it is to be observed, that, although the conveyance of the manor primâ facie draws after it the advowson also, yet it is always competent for the owner to sever the advowson from the manor,

to invalidate such clauses in a will as tend virtually, though not nominally, to a perpetuity; see 1 Smith, L. C. pp. 184, 185; and other instances of its application will occur in the following pages.

(1) Co. Litt. 152. a., 151. b.; per

Vaughan, B., Harding v. Pollock,
6 Bing. 63.

(m) Bell, Dict. and Dig. of Scotch
Law, p. 7; see also Co. Litt. 389. a.
(n) Ante, p. 198.

(0) 2 Bla. Com. 176; Litt. s. 229; Co. Litt. 143. a.

Common appendant, &c.

Principal and interest.

either by conveying the advowson away from the manor, or by conveying the manor without the advowson (p).

Again, common of pasture appendant is the privilege belonging to the owners or occupiers of arable land holden of a manor to put upon the wastes of the manor their horses, cattle, or sheep; it is appendant to the particular farm, and passes with it, as incident to the grant (q). But divers things, which, though continually enjoyed with other things, are only appendant thereto, do not pass by a grant of those things; as, if a man has a warren in his land, and grants the land, by this the warren does not pass, unless, indeed, he grants the land cum pertinentis, or with all the profits, privileges, &c., thereunto belonging, in which case the warren might, perhaps, pass (r).

Another well-known application of the maxim under consideration is to covenants running with the land, which pass therewith, and on which the assignee of the lessee, or the heir or devisee of the covenantor, is in many cases liable, according to the kindred maxim of law, transit terra cum onere (s).

In accordance, moreover, with the above principle, it may be scarcely necessary to say, that, if the plaintiff in any action is barred from recovering the principal, he must be equally barred from recovering the interest; for this is an accessary only, and must follow the nature of the principal (†).

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In a recent case the declaration stated, that the defendant, sixteen years before, delivered his promissory note payable on demand, with interest, to the plaintiff, but neglected to pay, except interest, which he paid up to a day within six years; the defendant pleaded that the cause of action did not accrue within six years, and this plea was held sufficient on demurrer, for the cause of action was the principal money due, to which the interest was only accessary, and the plea being good in bar of the principal, the accessary must necessarily fall along with it (u).

from grant.

It may be remarked, also, that, in some cases, that which Severance is parcel or of the essence of a thing passes by the grant of the thing itself, although at the time of the grant it were actually severed from it; by the grant, therefore, of a mill, the mill-stone will pass, although severed from the mill (x).

Lastly, in criminal law it is also true that accessorius se- Criminal law. quitur naturam sui principalis (y); and, therefore, an accessary cannot be guilty of a higher crime than his principal, being only punished as a partaker of his guilt (z).

Plesque putarcum milum at oras sue in pis hrean iccre quia
Domus Autismus duique refugio chaxstaciauit. Jauns 88 24..
DOMUS SUA CUIQUE EST TUTISSIMUM REFUGIUM. (5 Rep.
92).—Every man's house is his castle.

case.

A

In the case which is always referred to as shewing the Semayne's application of the above well-known maxim, the facts may be shortly stated thus:-The defendant and one B. were

(u) Hollis v. Palmer, 2 B. N. C. 713.

(x) Shep. Touch. 90: see Wyld v. Pickford, 8 M. & W. 443. As to what shall be deemed to pass as appendant, appurtenant, or incident, see Bac. Abr. "Grants," (I. 4).

(y) 3 Inst. 139.

(z) 4 Bla. Com. 36; where an

instance of the application of this
maxim is given in the distinction
which formerly existed between mur-
der and petit treason; but this dis-
tinction is abolished by stat. 9 Geo. 4,
c. 31, s. 2. As to the mode of pro-
ceeding against an accessary, see 7
Geo. 4, c. 64; Arch. Cr. Pl., 9th ed.,
639 et seq.

First resolution.

joint-tenants of a house in London. B. acknowledged a recognisance in the nature of a statute staple to the plaintiff, and, being possessed of certain goods in the said house, died, whereupon the house in which the goods remained became vested in the defendant by survivorship. Plaintiff sued out process of extent on the statute to the sheriffs of London, and, on the sheriffs having returned the conusor dead, he had another writ to extend all the lands which B. had at the time of acknowledging the statute, or at any time after, and all the goods which he had at the day of his death. This writ plaintiff delivered to the sheriffs, and told them that divers goods belonging to B. at the time of his death were in the defendant's house, upon which the sheriffs charged a jury to make inquiry according to the said writ, and the sheriffs and jury came to the house aforesaid, and offered to enter in order to extend the goods, the outer door of the house being then open; whereupon the defendant, præmissorum non ignarus, and intending to disturb the execution, shut the door against the sheriffs and jury, whereby the plaintiff lost the benefit of his writ (a).

In the above case the following points, which bear upon the present subject, were resolved, and may be thus shortly stated.

1st. That the house of every one is his castle, as well for his defence against injury and violence, as for his repose; and, consequently, although the life of man is a thing precious and favoured in law, yet, if thieves come to a man's house to rob or murder him, and the owner or his servants kill any of the thieves in defence of himself and his house, this is not felony. So, if any person attempt to burn o burglariously to break any dwelling-house in the nighttime, or attempt to break open a house in the day-time,

(a) Semayne's case, 5 Rep. 91.

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