Marriage.

A MAN contracts with a Wo­man to Marry her, and after Marries another Woman, and the first Sues him in the Spiritu­al Court, and by Sentence there, his Mar­riage with the Second is adjudged void, and that He and the first Woman are Man and Wife: Noy was of Opinion (as Serjeant Windham said) that by this Sentence the Man and first Woman were complete Ba­ron and Feme, without any other Solem­nity: But this was denied by Justice Twis­den, who said the Marriage must be Solem­nized before they can be Man and Wife, 1 Siderf. 13. Sir Robert Pain's Case.

[Page 2]So Note, The Spiritual Court may un­marry, i. dissolve a Marriage, but they cannot Marry by such Sentence, for Matri­mony is not accounted consummate by our Law untill it be celebrated in facie Ecclesiae, or, &c. by one in Sacred Orders, according to the Form in the Book of Common Prayer.

Two were Married by a Parson in Ho­ly Orders during the time of the Act a­gainst Marriages by them, and which en­abled Justices of Peace to Marry: The Justices of Peace upon Petition, dissolved this Marriage; but the whole Court now was of opinion, That the Marriage being once lawfully Solemnized, and without Impediment, the whole World could not dissolve it, being by one in Sacred Orders, tho' at an Ale-house, and at Twelve of the Clock in the Night. 1 Siderf. 64. Tarry and Brown's Case.

Whether an Ideot may contract Matrimony.

THO' it be generally said, That the Contracts of Ideots are void, because such are natural Fools, yet it was adjudged, Trin. 3. Jac. B. R. in the Case of Stiles and West, that an Ideot may consent to Marriage, and his Issue shall be Legitimate. Shep. Gr. Abr. tit. Ideot, & 1 Siderf. 112. and by my Lord Coke, the Wife of an Ideot [Page 3] shall be endowed. 1 Inst. Shep. says there, If he have so much Knowledge that he can read, or learn to read by instruction and information of others, or can measure an Ell of Cloth, or Name the Days of the Week, or beget a Child, Son or Daughter, or such like, whereby it may appear he hath some light of Reason, then he is no Ideot naturally; and cites for this Terms Ley. Some doubt if Begetting be any Evi­dence of Reason; what think you of an Horse or an Ass that beget, but most unrea­sonably; say rather he can beget like these by Instinct, Natural perhaps to him as his Folly. Conjunctio Maris & Feminae est de ju­re Naturae. 1 Inst. 187.

The Age of Consent to Marriage.

A MAN cannot consent to a Marri­age before the Age of Fourteen, which are his Years of Discretion; but a Woman may consent at Twelve, for the Law ten­ders the speedy advancement of Women, quia maturiora sunt vota Mulierum quam Vi­rorum.

Note, If the Man be above Fourteen, and the Wife under Twelve, or if the Wife be above Twelve, and the Man under Four­teen, yet may the Husband or Wife so a­bove the age of consent, disagree to the [Page 4] Espousals, as well as the party that is under the age of Consent; for the Advantage of disagreement must be reciprocal. Babing­ton and Warner's Case. 3. Inst. 89.

Marriage in some sort Felony by the Common Law.

BY the ancient Law of England, if a­ny Christian Man did Marry with a Wo­man that was a Jew, or a Christian Wo­man Marry with a Jew, it was Felony, and the Party so offending should be burnt alive. 3 Inst. 89.

Contrahentes cum Judaeis, Judaeabus, Peco­rantes, & Sodomitae in terra vivi confodiantur, &c. Fleta lib. 1. cap. 35. §. Contrahentes.

Whether a Man divorced from his Wife causâ Adulterii, and Marrying a Second in her Life, be a Felon.

ONE Williams Married a Wife, and was divorced from her causâ Adulterii, and then Married another, for which he was indicted upon the Statute of 1 Jac. cap. 11. for having two Wives: And if this were within the Proviso of that Statute which provides for those who are divorced, was the question. [The Words are, Provided that this Act shall not extend to any Person or [Page 5] Persons that are or shall be at the time of such Marriage divorced by any Sentence had, or hereafter to be had in the Ecclesiastical Court, nor to any Person or Persons where the former Marriage hath been, or hereafter shall be by Sentence in the Ecclesiastical Court, declared to be void, and of no effect.] 'Twas re­solved by Brampston and Heath, (caeteris ab­sentibus) that it is within the Proviso, for it speaks generally of Divorce, and this is a penal Law. Heath said, That by the Law of Holy Church the Parties divorced, causâ Adulterii, might Marry, but Pars rea, not without Licence; and cited the case of Ann Porter (which see Cro. Car. 461. 2. 3.) who was divorced from her Husband cau­sâ saevitiae, and afterwards Married one Rooks, and being indicted upon this Sta­tute, it was doubted and debated whether it were within the Proviso or not; but resol­ved, It was not, because only a divorce à Co­habitatione, and a temporal Separation until the Anger pass'd; but the Divorce here is à Vinculo Matrimonii. Trin. 17. Car. March Rep. 101.

Quaere the difference between these Ca­ses, for tho' in former times it was que­stioned, Whether a Man and his Wife Di­vorced causâ Adulterii might Marry again, yet now it is made clear by the Canons, That they may not, for this is no abso­lute [Page 6] Divorce, being ex causâ subsequente, and only a Separation à Mensa & Thoro, freeing the Parties from the performance of Conjugal duties only, the one with the other. Vide Cro. Eliz. 908. Stephen's and Totty's Case, and Moor 665. where the Hus­band after such a Divorce, causâ Adulterii, released an Obligation made to his Wife before the Coverture, and adjudged a good Release; which proves that the Coverture continues, and that there is no dissolution à Vinculo.

In the Case of Ann Porter, as reported by Crook, it was said by the Court, If she were suffered to be within the Proviso, many would be Divorced upon such pre­tence, Scil. Causâ Saevitiae, and instantly Marry again, whereby many inconveni­encies would ensue; whereupon she was advised, Not to insist upon the Law, but to procure a Pardon to avoid the danger; for it was clearly agreed by all the Civi­lians and others, that the Second Marri­age there was unlawful, and she in danger to be adjudged a Felon by the Statute. Note the Decree was, Quod propter Saeviti­am of her Husband towards her, she should be separated à Mensâ & Thoro from him; but no Word of Divorciamus was therein; and expresly intimated in the Sentence, that she should not marry to any other during the life of the said Porter.

[Page 7]It should seem therefore, that where Sentence of Divorce is given, as in the Case of Williams, causâ Adulterii, there such Persons Marrying again shall not be in danger to be Felons by the Statute, which being a Penal Law concerning Life, ought to be favourably expounded in favorem vi­tae; and that the Proviso extends to this kind of Divorce ex causâ subsequente, i. e. Adultery, the Words being of Divorces in general, where Sentence is given in the Ecclesiastical Court, and not only where the former Marriage is by Sentence de­clared void. Yet some are of opinion, That the Proviso doth not intend, but when there is Sentence of an absolute Di­vorce, as in Causes preceding the Marri­age, viz. Pre contract, Consanguinity, Af­finity, and Frigidity, which dissolve à Vin­culo, and the Marriage declared void ab initio. But vide 3 Inst. 89. and Hales, Pla. Cor. tit. Felenies by Stat. that this Branch of the Statute in respect of the generality of the Words, privelege the offender from being a Felon, as well in the case of the Divorce à Mensâ & Thòro, as where it is à Vinculo Matrimonii; and yet in the case of the Divorce à Mensâ & Thoro, the Second Marriage is void, living the former Wife or Husband. And if there be a Divorce à Vinculo Matrimonii, and the [Page 8] adverse Party appeal, which is a continu­ance of the former Marriage, and suspend the Sentence; yet after such a Divorce, the Party Marrying is no Felon within this Statute, in respect of the generality of this Branch, altho' the Marriage be not lawful.

The offender against this Statute may have the benefit of his Clergy. 3. Inst. 89.

Where notwithstanding one is acquitted, he shall be forc'd to pay Costs.

IF Baron and Feme are Sued in the Ec­clesiastical Court for Polygamy, and there it appears that the Wife was Married be­fore to I. S. within the age of Consent, and afterwards at the Age of Consent did disagree, and Married the Defendant, and so the Defendants are acquitted; yet if the Court tax Costs to the Plaintiff, no Prohibition shall be granted, because they have Jurisdiction of the Cause, and it is the Custom there to tax costs where the Plaintiff has causam litigandi; and a Pro­hibition was denied. 2 Rol. 299. Black­don's Case.

See 2. Brownl. 36. the same Case repor­ted contrà, that a Prohibition was granted, for it was injustice to allow Costs to one who had vexed them without cause, and [Page 9] when they had given Sentence against the Informer.

Chancemedly, or casual Homicide.

IT is where a Man doing a lawful act, without intent of hurt to another, hap­neth to kill a Man casually. By the Law of God there was a City of Refuge ap­pointed for such Person to flee unto, for the Act happening in such sort, seemeth to be the work of God himself. But by our Law he shall forfeit his Goods, in re­gard that a Subject is killed by his means.

Shooting at Rovers, or at a Bird, or hew­ing a Tree, and the Hatchet-head flies off, or a School-Master in reasonable manner beating a Scholar, or a Father his Son, or a Master his Servant, and Death ensues, it is Chancemedley. Dalt. 351. 352. Quaere, If a Man beat his Wife for Correction only, and she die thereof.

King William Rufus was shot by acci­dent in New Forest by Sir Walter Tyrel. And in the Reign of King James I. Arch-Bi­shop Abbot, a Man of a holy and unblame­able Life, (medling with edg'd Tools that he used not to handle in his Study) by a sad accident killed a Keeper with a fork­ed Arrow, as he was shooting at a Deer, where-upon he retired to Guilford in great [Page 10] perplexity; but the King granted out a Commission to enquire whether casual Ho­micide did make the Arch-Bishop irregu­lar, and in the disquisition of it, he found many Friends that restored him to his Pa­lace. Wilson's King James. 198.

Buggery, or Sodomy.

BUGGERY is a detestable and abomi­nable Sin, not to be named amongst Chri­stians, committed by carnal Knowledge a­gainst the Ordinance of the Creator, and Order of Nature, by Mankind with Man­kind, or with brute Beasts, or by Woman­kind with brute Beasts. 3 Inst. 58.

Bugeria is an Italian Word, and signifies this description; and it was complained of in Parliament that the Lombards (Italians) had brought into the Realm the shameful sin of Sodomy, inter Christianos non nominandum, as it is said Rot. Parl. 50 E. 3. nu. 58.

The words of the Indictment be, Contra ordinationem Creatoris & naturae ordinem, rem habuit veneream, dictumque puerum carnaliter cognovit, &c. so as there must be penetratio, i. e. res in re, either with Mankind, or with Beast, but the least penetration maketh it Carnal Knowledge. See the Indictment of Stafford, Coke, lib. Intr. for committing Buggery with a Boy, for which he was at­tainted and hanged.

[Page 11] Emissio Seminis makes it not Buggery; but is an Evidence in that case of pene­tration. 3 Inst. 59.

If the Party Buggered be within the age of discretion, it is no Felony in him, but in the Agent only. ib.

Note the Words of Stat 25. H. 8. c. 6. that makes this offence Felony, are, No Person offending, &c. which extends as well to a Woman as to a Man; and therefore if she commit Buggery with a Beast, she is a Person that commits Buggery with a Beast, to which end the Word Person was used, and the rather, for that somewhat be­fore the making of this Act, a great Lady had committed Buggery with a Baboon, and conceived by it, &c. ibid.

And of late Years one Hick's was Indict­ed at the old Baily upon this Statute ha­ving suffered a Dog to copulate with her, which being fully proved, and found by the Jury, she was condemned, and hang­ed at Tyburn, and the Dog on a Tree by 3 Keeble 800.

See Hutton's Rep. 115. the Lord Audley's Case. He was Indicted that Deum prae o­culis non habens, nec naturae ordinem respiciens, sed instigatione Diabolicâ motus, &c. Vi & Armis in quendam Florence Fitz-Patrick, Yeoman, insultum fecit, & cum eodem felonicè, & contra naturam rem veneream habuit, ip­sumque [Page 12] F. &c. carnalitèr cognovit, peccatum (que) illud Sodomiticum, &c. cum eodem F. commi­sit, &c. The like Indictment for the same offence, with the same Person at another time; and being tried by his Peers, Twelve of the Lords acquitted him, and Fifteen found him guilty; and so he had Judg­ment.

Felony, Rape, Burglary.

IF a Woman kill a Man that assaults her to ravish her, 'tis not Felony, because he comes to commit a known Felony him­self. Hales, Pla. cor. tit. Felonies.

If a House be broken and enter'd with an Intent to commit a Rape, it is Burgla­ry, whether the Intent be executed or not: (Hales, tit. Burglary) For note, Rape was Felony at Common Law; then by Stat. Westm. 1. c. 13. made but Misdemeanor; then by 13 E. 1. c. 34. restored to Felony again.

Rape is a violent deflouring of a Woman, or carnal Knowledge had of the Body of a Woman against her Will.

If a Woman at the time of the supposed Rape do Conceive with Child by the Ra­visher, this is no Rape; for a Woman can­not Conceive with Child, except she doth consent. Dalton's Inst. cap. 160. pag. 392.

[Page 13]One W. D. was Arraigned in Banco Re­gis upon an Indictment of the Rape of a Girl of the age of Seven Years, Scil. Quod ip­sam felonicè rapuit & carnalitèr cognovit, he pleaded Non Culp. but was found Guilty upon the Evidence of several Matrons: But note, the Court doubted of a Rape in so tender a Child; but had she been Nine Years old, and more, then it might be o­therwise. Dyer. 304. pla. 51. Post.

(The Law is, That a Wife shall not be endowed, unless she be past the age of Nine Years, at the time of the Death of her Husband, and the reason is Quia Juni­or non potest dotem promereri neque virum Su­stinere. Co. Lit. Sect. 36. (which perhaps was the ground of the Opinion in the for­mer Case.)

One Woman Principal to the Rape of another.

IF a Man and a Woman be present, with purpose that the Man shall by Vio­lence carnally know the Body of another Woman there also present, against her Will, and the Man doth the fact in the presence of the other Woman; she being present shall be a Principal Ravisher as well as the Man; He the Agent, and She the Co-adjutant: And so one Woman may be a Principal to the Ravishment [Page 14] of another. Dod. 138. Dalton 392. cap. 160.

To Ravish a Harlot, Felony.

IT is a good Plea in an Appeal of Rape to say, That before the Ravishment sup­posed, she was his Concubine, as Bracton says. And yet to ravish an Harlot against her will is Felony; for Licet Meretrix fuerit ante, certe tunc temporis non fuit, cùm nequi­tiae ejus reclamando consentire noluit. Bract. l. 2. Dalton ubi sup.

Consent to Rape.

NOTE, Tho' if a Woman prove with Child, it is no Rape, for that she cannot conceive unless she consent, as it was ob­served before; yet if a Man Ravish a Wo­man, who consents for fear of Death, this is Ravishment against her Will, for that Consent ought to be voluntary and free. Dalton ubi sup.

To Ravish a Woman where she neither consents before nor after; or to Ravish a­ny Woman with force, tho' she do consent after, is Felony, and the offender has no benefit of Clergy. ibid. 13 E. 1. 34. 6. R. 2. c. 6.

[Page 15]But if a Woman be under Ten Years, then, tho' she do consent before, yet by Stat. 18. El. cap. 7. it is a Rape. Hales, tit. Felonies by Stat. Cromp. 47. Dalt. 393.

By the Statute, 6 R. 2. c. 6. both the Ravisher and Ravished, where she consents after the fact, are dissabled to have, or challenge any Inheritance, Dower, or Joint Estate, after the death of her Hus­band, or Ancestor.

Note, Where Rape is, there must be penetratio, & emissio Seminis in the Case. Co. 12. 37. For altho' there be emissio Seminis, yet if there be no penetration, that is, res in re, it is no Rape; for the Words of the Indictment be, Carnaliter cognovit, &c. 3 Inst. 60. But emissio Seminis may be an Evi­dence in case of Rape of Penetration. 3 Inst. 59. See Hutton's Rep. 116. in the Lord Audley's Case.

At what Age a Woman may be Ravished.

THE doubt that was made in 14 Eliz. Dyer, f. 304. (before) at what age a Woman Child might be Ravished, was the cause of the making of the Act of 18 Eliz. cap. 6. for plain declaration of the Law [That if any Person should unlawfully know and abuse any Woman-Child under the age of Ten Years, every such unlawful and [Page 16] carnal Knowledge should be Felony, and the of­fender therein being duly convicted, shall suf­fer as a Felon, without allowance of Clegry.] 3 Inst. 60.

A Woman Attainted, Ravished.

IF a Woman attainted be Ravished, af­ter Pardon she shall have an Appeal of Rape. 3 Inst. 215.

We read in Story, that chast Lucretia be­ing Ravished, she was found in extream heaviness, and it was demanded of her, Salvan'? She answered, Quomodo Mulier salva esse potest laesâ Pudicitiâ? And yet thereof it is truly said, Duo fuerunt, & u­nus commisit Adulterium.

Non compos Mentis.

A MAN Non sanae Memoriae gives to himself a mortal Wound, and before he dies, he becomes of sound Memory, and after dies of this Wound; here he shall not be felo de se; but if one gives himself such a Wound while he is of sound Mind, and after becomes non sanae Memoriae, and dies thereof, there he shall be felo de se.

Deodand.

IF a Man fall from a Ship, Cart, or o­ther Vessel, in aqua dulci, fresh Water, 'tis a Deodand; otherwise in salt Water, be­ing any Arm of the Sea, tho' it be in the body of the County; because of the dangers it is subject to upon the raging Waves in Windy and Tempestous Wea­ther. 3. Inst. 58.

If an Infant within the age of discreti­on, scil. Fourteen, be slain by a fall from a Cart, Horse, Mill, &c. no Deodand; but if slain by a Horse, Bull, or, &c. then a Deodand. ibid.

A Lodger kills one that assaults a House, no Felony.

IF one break a House with intent to rob it, or kill any therein, and one with­in the House, tho' not the Master, (but a Lodger, or a Sojourner) kill him; this is no Felony. Cro. Car. 544. Cooper's Case.

Physician kills his Patient.

IF one that is no Physician allowed, take upon him to give Physick, and kill his Pa­tient, this is Felony; but if he be a Phy­sician [Page 18] allowed, and do so out of Igno­rance or Negligence, Contra. Stamf. lib. 1. pag. 16. Fitz. Coron. 163.

To provoke Love by Witchcraft, the Second of­fence Felony.

IF one shall the Second time use any Conjuration, or Witchcraft, to provoke Love in a Maid, this will be Felony, by 1 Jac. cap. 12.

Servant kills one that hath killed his Master.

IF one hath killed my Master, and I in a hasty and fresh pursuit of him, kill him, no Felony. Kytch. 25. If he be a Thief, 21 H. 7. 41.

Two Persons of the same Name pretend to a Legacy.

IF there be a dispute between two Per­sons pretending to the same Legacy; as if the Devise be to Thomas Styles, without o­ther distinction of the Person, and there be two of that Name, of equal respect with the Testator, or both alike, his Friends, or Acquaintance; here the Executor hath his election to deliver the Legacy to which of them he please. Yet [Page 19] some are of opinion, that in such case the Legacy is void by reason of uncertainty. Orphan's Legacy 441. 10.

Faith and Troth.

A WRIT was ad Respondendum I. S. & Fidei Uxori ejus. The Defendant plead­ed in Abatement of the Writ, because the Name of the Wife was Faith in English, and pretended it should be Fidi. Rhodes said, he knew a Wife who was called Troth, and Named Trothia in Latin, and well: And the Writ was adjudged good in the former Case. Goldsb. Rep. fol. 86.

Where Chattels shall go to the Heir.

SEE some instances hereof in Dr. and Stud. lib. 2. cap. 12. and 1 Inst. 8. a. in fine. 18. b. in med. and 185. b. fine, and the office of an Executor 81. and 84.

If a Man be seized of a House in Fee, and a Window or Door of the House be taken off to be mended, during which the owner of the House dies, yet his Heir shall have them by descent, and not the Executors; for tho' in fact they are for a time divided from the House, yet in judg­ment of Law they always remain parcel of it. 1 Rol. Rep. 102.

Devise good to him in Remainder, tho' the par­ticular Tenant die before the Testator.

ALTHO' where a Legatary dies before the Testator, a Bequest of Goods or Chat­tels to such Legatee becomes void to his Executors; yet if there be a Devise of Land to one for Life, the Remainder to another in tail, and the Devisee for Life die before the Testator, the Devise of the remainder continues good. See Perk. Sect. 567, 568.

Where a Remainder may depend without a par­ticular Estate.

A LEASE is made to A. for the Life of B. the remainder to C. in Fee; A. dies, now before an Occupant enters, here is a Remainder without a particulur Estate, and yet good. 1. Inst. 298. a. in medio.

Which Case disproves the opinion of Justice Clinch. Owen's Rep. 39. viz. That every Occupant ought to be in possession at the time of the death of the Tenant, and that otherwise the Law casts the Interest upon him in the Reversion; which opinion is there likewise denied by Gawdy and Chute Justices: And as my Lord Coke says, He is in Law called an Occupant, because his Title is by his first Occupation, (which sure cannot be supposed in the time of the particular Tenant) A Remainder is de­fined [Page 21] to be the residue of an Estate in Land, depending upon a particular Estate, and created together with it, yet as it may in some case depend without a particular E­state: So the continuance of the particular Estate is not always requisite to support the Remainder; as if a Lease be limitted to an Infant, the Remainder over, and after the Infant refuses, yet the Remainder is good. So if a Copy-holder in Fee surrender to the use of the Lord for Life, the Remain­der over; So if Tenant for Life, and he in the reversion, grant their Estate to the Tenant himself for Life, the Remainder over, it is good. 1. Siderf. 360.

A Remainder vesting in an Instant, yet good.

A RENT is granted to the Tenant of the Land for Life, the Remainder in Fee, this is a good Remainder, tho' the parti­cular Estate continued not, for eo instante that he took the particular Estate, eo instante the Remainder vested, and the suspension in Judgment of Law grew after the taking of the particular Estate. 1 Inst. 298. a. in medio.

A Rent is granted to B. for the Life of A. the Remainder to the Heirs of the Body of A. this is a good Remainder, and yet it must vest upon an instant. 7 H. 4. 6. immediately upon the Death of A. who is [Page 22] cestuy que vie, the Remainder vests in his Heir. See Finch's Law. 69.

Tenants in Common.

LEASE for Life, Remainder to the right Heirs of I. S. and I. D. who are li­ving, their Heirs shall take it in common; not Jointly, for that they cannot take at the same time, for by intendment both Fa­thers will not die together. 18 E. 3. 28.

Felonious Taking.

A. SEEING the Horse of B. in his Pa­sture, and having a mind to steal him, comes to the Sheriff, and pretending the Horse to be his own, obtains him to be de­livered unto him by a Replevin; yet this is a Felonious and Fraudulent taking, for the Replevin was obtained in fraudem Legis. 3 Inst. 108. 1 Siderf. 254.

Felony to take his own Goods.

A MAN delivers Goods to another, and afterwards the Bailor privately steals them from the Bailee, with an intent to charge him, &c. this is Felony, and in judgment of Law he is said in this case to take the Goods of another, the Bailee having Jus [Page 23] possessionis, or a special property; and the Bailor Jus Proprietatis. 3 Inst. 110. Keilway 70. Ha. Pl. Cor. 67.

One Farr a Solicitor had obtain'd Judg­ment against the casual Ejector, upon which he sued an Hab. fac. possessionem, and the Sheriff's Bayliffs entred the House with him, and broke a Door where certain Goods were, and took the Woman to whom they belonged, and required special Bail of her, for default whereof they car­ried her to Newgate, and then Farr took the Goods, which were of a great Value: For which being Indicted, and it appearing he did all this with intention to take the Goods, without any colour of Title for his Client, he was found guilty of Felony; and tho' he was a Solicitor, and had been convicted of Forgery before, yet he could not read, and so he was hanged. 1 Sid. 254.

Felony to steal a Winding-Sheet.

ONE William Haines digged up the seve­ral Graves of three Men and one Woman in the Night, and took their Winding-Sheets from their Bodies, and buried them again: 'Twas resolved, The property of the Sheets remained in the owner, scil. in him (or them) who had property therein when the dead Body was wrapped therewith ( viz the [Page 24] Executors, Administrators, or other owner of 'em) vide 11. H. 4. If Apparel be put upon a Boy, it is a gift in Law, 'cause the Boy hath capacity to take it; but a dead Body being but a lump of Earth, hath no capacity: Also it is no gift to the Person, but bestowed on the Body for the reve­rence towards it, to express the hope of Resurrection: Besides, one cannot relin­quish the Property he hath to his Goods, unless they are vested in another. Note, Haines had his Clergy, and escaped death. Co. 12. 113. and 3 Inst. 110.

Woman Bailiff.

A WOMAN may be sued in Account as Bailiff, for she may well discharge the Office of a Bailiff. 19 H. 6. 5. b.

Felo de se, yet the killing involuntary.

A. GIVES B. such a Stroak, as he fells him to the Ground; B. draws his Knife, and holds it up for his own defence, A. in haste meaning to fall upon B. to kill him, falls upon B's Knife, whereby he is woun­ded to death; he is felo de se, for B. did no­thing but what was lawful in his own de­fence. 3 Inst. 54. Ha. Pl. Cor. 28. and Bac. Elem. 4.

[Page 25]So if a Gun be discharged with a mur­therous 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 intention was not to hurt himself, but in criminalibus sufficit generalis malitia intentionis cum facto paris gradus, for if one perswade another to kill himself, and is present when he doth so, he is a Mur­therer: But Quaerae, If A. lay impoisoned Fruit for a Stranger, and his Father or Mother come and eat it, Whether this be petty Treason, because it is not altogether Crimen paris gradus. See Bacon's Elem. 59, 60.

A Non compos mentis wounds himself mor­tally, and dies Compos.

ONE during the time that he is Non compos mentis, gives himself a mortal Wound, but dies not thereof till he has recovered his memory, he is not Felo de se, because the Stroak which caused his death was gi­ven when he was not compos mentis, Et Actus non facit Reum, nisi mens sit Rea. 3 Inst. 54.

A Man that is Non compos mentis kills a­nother, this is no Felony; the same for a Lunatick during his Lunacy. But Note, He that incites a Madman to kill another, is a Principal Murderer.

A Non compos mentis can't commit Treason.

THE ancient Law was, that if a Mad­man had killed, or offered to kill the King, it was Treason. 4 Rep. 124. ( Nec veniam lae­so numine casus habet. Ovid.) But now by Stat. 25. E. 3. by force of these Words, Fait compasser ou imaginer la mort. He that is not Compos Mentis, and totally deprived of all compassings and imaginations, can­not commit High Treason by compas­sing, &c. 3 Inst. 4. 6.

Where Execution was done upon a Man for the death of a Child, the Child being then alive.

IN the County of Warwick there were two Brethren, the one having Issue a Daughter, and seized of Lands in Fee, de­vised the government of Her, and his Lands, until she came to Sixteen Years, to his Bro­ther, and died. The Uncle brought up his Neece very well both at her Book and Needle, and she was eight or nine Years old: Her Uncle for some offence correct­ing her, she was heard to say, Oh good Un­cle kill me not; after which time she could not be heard of, tho' much enquiry made: Whereupon the Uncle being suspected of her Murder, and the rather because her [Page 27] next Heir was upon Examination. 8 Jac. Regis committed to Goal for suspicion of Murder, and admonished by the Justices of Assize to find out the Child, and so bail­ed him until the next Assizes: Against which time, (for that he could not find her) and fearing what would fall out against him, took another Child as like unto her both in Person and Years as he could find, and apparelled like the true Child, and brought her the next Assizes; but upon view and examination, she was found not to be the true Child, and upon these presumptions he was Indicted, found Guilty, had Judgment, and was Hanged. But the truth of the case was, The Child being beaten over night, the next morning when she should go to School, ran away into the next County, and being well Educated, was received and entertained of a Stranger; and when she was Sixteen Years old, at which time she should come to her Land, she came to de­mand it, and was directly proved to be the true Child. Herein is a double caveat; First, to Judges, that in case of Life they judge not too hastily upon bare presumption. Secondly, to the innocent Man, that he never seek to excuse himself by false or un­due means, lest thereby offending God he overthrow himself as the Uncle did. 3 Inst. 232.

A Non compos mentis shall not suffer Execu­tion for Felony or Treason, &c.

IF a Man commit Treason or Felony, and confesses the same, or be thereof con­vict, and after become De non sanae Memo­riae, he shall not be called to answer: Or if after judgment he become De non sanae Memoriae, he shan't be executed, for it cant be an Example to others. 3. Inst. 4.

In Felony the Will was anciently taken for the Deed.

A YOUTH was arraigned, for that he would have stollen the Goods of his Ma­ster, and came to his Master's Bed where he lay asleep, and with a Knife attempted with all his force to have cut his Throat, and thinking he had indeed done it, he fled; whereupon the Master cried out, and his Neighbours apprehended the Youth, and all this Matter being found by special Verdict, in the end he was adjudged to be hanged. 3 Inst. 5. Quia voluntas reputabi­tur pro facto. But Note, For a bare com­passing or plotting the death of a Man, either by Word or Writing, he should not have died, but there must have been an o­vert deed tending to the execution of [Page 29] his compassing, as in the case aforesaid. ibid.

If one beat another grievously, and leave him for dead, and he recover; this is not Felony now.

Words not Treason unless set down in Writing.

SINCE the Stat. of 25 E. 3. divers lat­ter Acts of Parliament have ordained, that compassing by bare Words or sayings should be High Treason, but all they are either repealed or expired. And it is commonly said, That bare Words may make an He­retick, but not a Traytor, without an overt Act. And the wisdom of the makers of Stat. 25 E. 3. would not make Words on­ly to be Treason, seeing such variety a­mongst the Witnesses are about the same, as few of them agree together. But if the same be set down in Writing by the De­linquent himself, this is a sufficient overt act within this Stat. Note the Act says, per overt fait, per apertum factum, and not per apertum dictum. 3 Inst. 14.

Cardinal Pool, altho' a Subject to H. VIII. and of the King's Blood, (being descended from George Duke of Clarence, Brother to King Edw. IV.) yet in his Book of the Pope's Supremacy, written about 27 H. 8. incited Charles the Emperour, then prepa­ring [Page 30] against the Turk, to bend his Force a­gainst his natural Sovereign Lord and Countrey; the Writing of which Book was a sufficient overt act within this Statute: and to move the Emperor the more, he made H. VIII. almost as ill as the Turk, in these Words, In Angliâ sparsum nunc est hoc semen, ut vix a Turcico internosci queat, idque authoritate unius coaluit. ibid.

But Words without an overt deed are to be punished in another degree, as in High Misprision, ibid. which is imprison­ment during life, forfeiture of all Goods, Debts, and Duties for ever, and the Pro­fits of his Lands during his Life. 3 Inst. 36.

Robbery.

IF a Theif command one to deliver his Purse, who does accordingly, and then the Thief finding little in it delivers it back to him, this is Robbery.

If the true Man's Purse be fastened to his Girdle, and the Thief cut the Girdle, whereby the Purse falls to the Ground, this is no taking to make it Robbery, for the Thief had never any Possession there­of; but if the Thief take up the Purse, tho' he let it fall again, (as in striving or, &c.) it is robbery, tho' he never take it up more, for he had it once, and the [Page 31] continuance of his possession is not re­quired by Law.

If the true Man seeking to escape, for the safeguard of his Money, cast it into a Bush, which the Thief perceiving, takes it, this is a taking in Law from the Per­son, because done at one time.

So if the true Man had let fall his Hat, or thrown off his Coat, and the same ly­ing in his presence, a Thief assault him, and take the Hat, &c. this is Robbery, for that which is taken in his presence, is in Law taken from his Person.

If a Thief compel the true Man by fear to swear to fetch him a summ of Money, which he does accordingly, and the Thief receives it, it is Robbery; for the Oath and Fear continuing, made him bring the Money, which amounts to a Taking in Law.

Note, Tho' it be under the value of Twelve Pence that is taken (as suppose One Penny, or Two Pence) it is Robbery; but somewhat must be taken, for the Assault only to Rob, without taking some Money or Goods, is no Felony, and such Opini­ons as seem to the contrary, were main­ed by that, which then was anciently holden, Quod voluntas reputabatur pro facto.

[Page 32] Nota, Taking a Man's Goods out of his Shop before his Face is Robbery, as if he had taken it from the Person; and it is nothing to the purpose tho' the Thief say, I have right to this, or, This is mine, if in­deed he has no colour.

Felonious taking of Goods to the value of 5 s. in the Day time, out of any Dwel­ling-House, or out-House, tho' no Person be within; oust of Clergy per Stat. 39 El. cap 15.

See these several Cases in 3 Inst. 68, 69. and Hales Pl. Cor. tit. Robbery.

Cut Purses, their Nature and Punishment.

BOTH Cut-Purse and Robber take from the Person, but the former takes it Clam & Secretè, without assault or putting in fear; and the Robber by violent Assault, and putting in fear.

If one out a Purse with Money in it, above Twelve Pence, he shall be hanged, and the benefit of Clergy is taken from him. 3 Inst. 68.

Give me leave to acquaint you here with an odd accident that happened in Northamp­tonshire towards the end of the Reign of King James I. out of Wilson's History, pag. 279. One Harman, a rich Man, having some bad Tenants, and being informed that one [Page 33] of 'em which owed him Money, had fur­nished himself to go to a Fair, walked (as by accident) to meet him in the way thi­ther; when he saw his Tenant, he asked him for the Rent; the Man (willing to dispose of his Money otherwise) denied he had any; yes, I know thou hast Money, said Harman, (calling him by his Name) I prithee let me have my Rent, and with much importunity the Man pull'd out his Money, and gave all, or the most part of it to his Landlord. This coming to some pragmatical Knowledge, the poor Man was advised to indict his Landlord for Robbing him on the High-way, which he did, and Harman for his sordid carriage being ill beloved in the Country, was found Guilty, but reprieved by the Judges, and hearing the Lord Treasurer had a Secre­tary of his Name, applied himself to him, promising to give him all his Estate (ha­ving no Children) if his Lord would bring him out of the danger he was in, which by his power with the King he did, and the Secretary within a short time af­ter, by the others death, enjoyed an am­ple Estate.

Stewes, and Brothel-Houses.

KING Henry VIII. suppressed all the Stews or Brothel-Houses, which long had continued on the Bank-side in Southwark, and those infamous Women were not bu­ried in Christian Burial when they were dead, nor permitted to receive the rites of the Church whilst they lived. This was by Proclamation under the Great Seal, 30 Martii 37 H VIII.

Before the Reign of H. VII. there were Eighteen of these Houses, and that King for a time forbad them: But afterwards Twelve only were permitted, and had Signs painted on their Walls; as The Cardi­nal's Hat, The Boar's Head, The Cross Keys, &c, Stow. and 3 Inst. 205.

Many wicked and common Women had seated themselves in a Lane called Water-Lane, next to the House of the Friers Carmelites in Fleet-street; this being known, King Edw. III. to the end these Friers might perform their Vows, one of which was, To live in perpetual Chastity, took order for removing of these Women. ibid.

So odious and dangerous was this Vice, (the fairest end whereof is Beggery) that Men in making of Leases of their Houses did add an express Condition, That the [Page 35] Lessee, &c. should not suffer, harbour, or keep any Feme putiene within the said Hou­ses. ibid. 206.

Nota, Tho' Adultery and Fornication be punishable by the Ecclesiastical Law, yet the keeping of a Bawdy-House, being as it were a Common Nusance, is punishable by indictment at the Common Law, by Fine and Imprisonment. ibid.

Accessary.

IF I. S. counsel or command one to kill a Man, and he kill another; or to burn one Man's House, and he burn another's; or to steal a Horse, and he steal a Cow; or to steal a black Horse, and he steal a white one; or to steal a Goldsmith's Plate from him, going to such a Fair, and he go to his Shop in Cheapside, and rob him there, and break open his House to do it; in these Cases the Counsellor shall not be Accessary, because this is another Felo­ny. Plowd. 475.

But if one command a Felony, and it be done in another Fashion, Time, or Place only than it was commanded, he may be Accessary to it.

As if one bid another to rob I. D. on Shooters-Hill, and he does it on Gads-Hill; or to rob him one day, and he does it a­nother [Page 36] day; or to do it himself, and he does it by another; or to kill him by Poy­son, and he does it by a Sword; in all these Cases he shall be an Accessary. ibid. See Stamf. 1. 45.

If one counsel a Woman to murder the Child in her Body, and after the Child is born alive, and then she murders it in the absence of him that gave her the Counsel; in this case he is an Accessary. Dyer 186. Plowd. 475.

One Saunders had Poyson given him by another to poyson his Wife; the Husband gave it to his Wife in a roasted Apple, who eat part of it, and gave the rest to her Daughter being an Infant; the Wife reco­vered, but the Child died; and it was held, That he that gave it for the Wife was not accessary to the murder of the Daughter: For the Consent must not be extended farther than it was given. Plowd. 474. Saunder's Case.

Yet if I perswade or command one to go and beat another Man only, and he do beat him, and kill him; by this I am made Accessary not only to the Beating, but to the Murder, for I commanded the unlaw­ful Act which caused his death. So it is Murder to kill one, tho' the Malice be a­gainst another; as if I strike at A. and kill B. because I had a malicious and felonious intent.

Felony to cut out Tongues, Eyes, &c.

BEFORE the Statute of 5. H. IV. cap. 5. which makes it Felony to cut out the Tongue, or put out the Eyes of any of the King's Subjects, of malice prepensed, the mischief was, that when one had been beaten, wounded or robbed, the Misdoers, to the end the Party grieved might not be able to accuse them, cut out their Tongues, or put out their Eyes, pretending the same to be no Felony, which is therefore or­dained and established to be so by this Act, which has so terrified offenders, that where before it was every days practice, now it is very rarely done. See 3 Inst. 62.

It extends not to cutting off Ears, which is no Felony, as appears by the Stat. of 37 H. VIII. cap. 6.

The offender had the benefit of his Clergy, but that is now taken away by Stat. 22 and 23 Car. II. cap. 11. which en­acts that if any Person, on purpose and of malice fore-thought, and by lying in wait, shall unlawfully cut out, or disable the Tongue, put out an Eye, slit the Nose, cut off a Nose or Lip, or cut off, or disable any Limb or Member of any Subject of his Ma­jesty, with intention in so doing to Maim or Disfigure him in any of these Manners, [Page 38] he is declared a Felon, without benefit of Clergy: But Note, by this Act it is provi­ded, that he shall forfeit neither Lands, Goods, or Chattels.

The cutting off a Man's Privy Members was Felony by the Common Law, for Bracton lib. 3. fol. 144. b. says, Quid dicitur si quis alterius virilia absciderit, & illum libi­dinis causa vel convitii castraverit? tenetur si­ve hoc volens fecerit vel invitus, & sequitur poena aliquando capitalis, aliquando perpetuum exilium cum omni bonorum ademptione.

Agreeable to this is the Record in Bra­cton's time, viz. Henricus Hall & A. uxor ejus capti & detenti sunt in Prisonâ de Evil-chester, eo quod rectati fuerunt quod ipsi ab­sciderunt virilia Johannis Monachi, quem i­dem Henricus deprehendit cum praedictâ A. uxore ejus, &c. But Fleta says, lib. 1. cap. 38. Si quis Castratus fuerit, talis pro Mahemiato poterit adjudicari. And so was the Law holden in my Lord Coke's time, as he says, 3 Inst. 63. and 118.

Where an Attaint lies, tho' every word of the Verdict be true.

A MAN shall have an Attaint in some special Case where every Word of the Ver­dict is true: As if one hath had Common Appendant to his Land, time out of mind, [Page 39] and brings an Assise of the Common, and makes Title that he hath had Common time out of mind, &c. without speaking of the Appendancy, and it is found for him. The Defendant shall have an Attaint, for the Plaintiffs Title is for Common in Gross, and not Common Appendant; yet the words of the Verdict are true, that he hath had Common time out of mind, &c. but not in such manner as shall be taken by the Title. Fitzh. N. B. 107 A.

So if one hath a Rent as Forrester in Fee of such a Forrest, time out of mind, and in Assise he makes Title that he hath had a Rent out of that Land time out of mind, &c. without saying As Forrester in Fee, &c. and it is found for him, the other shall have an Attaint, tho' the Words of the Verdict be true, for he hath not had such Rent by prescription as shall be intended and taken by the Title he has made. ibid.

Where the taking of a Second Lease shall be no present Surrender of a former.

A LESSEE for 21 Years took a Lease of the same Lands for 40 Years, to begin immediately after the death of I. S. it was holden, that the same was not any pre­sent Surrender of the first Term, but if [Page 40] I. S. die within the term, then it is a Sur­render, for it may be he will survive it. 4 Leon. 30.

Surrender of Part.

A LESSEE for years of Land accepts a new Lease by Indenture of part of the same Land, it is a Surrender only for this part, and not for all. Fish and Campion's Case. 2 Roll 498. the last Case.

A Lessee for years grants all his Estate to the Lessor, excepting one day at the end of the Term, yet this is not any Surrender, for this day is a Reversion, and so shall hinder the Surrender as strongly as if it had been 20 Years; adjudged between Bacon and Waller. 2 Roll. 498.

Where there may be a Certainty in an Uncer­tainty.

THERE is a Maxim in Law, That no Distress can be taken for Services that are not put into Certainty, or may be redu­ced to it, because upon the Avowry, Da­mages cannot be recovered for what nei­ther has nor can be reduced to any Cer­tainty: Yet in some Cases there may be a Certainty in Uncertainty, as one may hold of his Lord to Shear all the Sheep [Page 41] depasturing within the Lord's Mannor, which is certain enough, tho' he has sometime a greater number, and sometime a lesser there, yet this uncertainty being referred to the Mannor which is Certain, the Lord may destrain for it. 1 Inst. 96. a.

A Lease for 21 Years if I. S. live so long, is a good Lease for Years, yet is certain in uncertainty; for the Life of I. S. is un­certain. 1 Inst. 45. b.

Condition Broken.

IF A. be obliged to permit B. to have ingress into his House, he ought to have a common entrance at the usual door, and shall not be put to enter at a Hole, a back-Door, or a Chimney: And if they leave the common Door open, and make a Ditch, so that B. cannot enter without skipping; the condition is broken. So if I am obliged to suffer I. S. to have a way over my Land, and when I see him com­ing, I take him by the Sleeve, and say to him, Come not there, for if you do, I will pull you by the Ears, the Condition is bro­ken. Latch. 47.

Note, One made a Lease of a House with free liberty of ingress, &c. through part of the Lessor's House, and 'twas ru­led, That in this Case the Lessee must [Page 42] keep good hours and the Lessor is not bound to leave the Doors open for his coming in at One or Two of the Clook at Night, but may shut up his Doors. Modern Rep. 27.

Contract.

THE Lady Kent Articled with Sir Ed­ward Herbert that he should come to her when she sent for him, and stay with her as long as she would have him, to which he set his Hand: Then he Articled with her, that he should go away when he pleased, and stay away as long as he pleased, to which she set her Hand. This (says Selden) is the Epitome of all the Contracts in the World, betwixt Man and Man, betwixt Prince and Subject, they keep them as long as they like them, and no longer.

Conditional Bargain.

I. S. SENT a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him, receiving for them a certain Summ of Money; the Merchant sent the things by the Carrier without re­ceiving the Money: The Court held the Buyer should not be charged for the Mo­ney, for it was a conditional Bargain, [Page 43] and the folly of the Merchant to trust the Carrier with the Wares. 4 Leon. 7. May's Case.

An Estate for Life determinable at Will.

IF the King grant an Office to one at Will, and grant him a Rent for the exer­cise thereof for the term of his Life; this is determinable upon the determination of the Office. 1 Inst. 42. a. Finche's Law 8. 9.

Two Uses in Esse of the same Land at the same time.

IF A. disseise one to the use of B. and A. bargains and sells the Land for Money to C. C. hath an Use, and here be two Uses of one Land, but of several Natures, the one, viz. upon the Bargain and Sale to be executed by the Statute 27 H. VIII. and the other not. 1 Inst. 271. b. 272. a.

Where one shall be punished in Trespass for hurting a Man, that shall not be punished for killing a Man.

FELONY must be done Animo Felonico, and therefore if a Lunatick kill a Man, 'tis no Felony, because he is sine Animo du­ring [Page 44] his Lunacy: However, if a Lunatick hurt a Person, he shall be answerable in Trespass, which tends only to give dama­ges according to hurt or loss, and there­fore no Man shall be dispensed with for a Trespass; (for this is the nature of an Excuse, and not of a Justification, prout ei benè licuit) except it may be judged utter­ly without this Fault, as if one by force take my Hand, and strike you, &c. Hob. 134. Weaver and Ward.

Cases of Excuse.

ALL Laws admit certain Cases of just Excuse when they are offended in Let­ter, where the Offender is under necessity either of Compulsion or Inconvenience, or else where he is under an invincible Ig­norance, or where the offence is by a meer Misfortune without Will or Purpose, or where there is a meer Impotency to that that is required: By Compulsion, as in the case of Lucretia with young Tarquin, of whom St. Austin says, Duo fuerunt, & unus commisit Adulterium; and thereupon makes the Dilemma, Si casta, quare trucida­ta? Sin minus, quare laudata? Necessity of avoiding greater Inconvenience, as where one kills a Thief, or a Burgler in defence of his Person or House; the binding and [Page 45] beating of a Person Lunatick; removing of a Person Leprous. In Ignorance, as in the case of Jacob and Leah: Such also is the excuse of a Deed read amiss to one that cannot read, or reported to one that is blind: Lunacy in him that kills a Man. Of Impotency, as in the case of Mephibo­sheth accused by his Servant Ziba to Da­vid, and by himself excused by his Impo­tency. Vide Hob. 96.

Uncertainty.

A LEASE is made to a Man and a Woman for their Lives upon condition, that which of them two shall first Marry, that one shall have Fee; they enter Mar­ry, neither of them shall have Fee, for the Uncertainty. 1 Inst. 218. a.

Where one shall have Judgment to be hanged, after he is slain.

IN an Appeal of Death the Defendant waged Battel, and was slain in the Field, yet Judgment was given that he should be hanged, which the Judges said was al­together necessary, for otherwise the Lord could not have a Writ of Escheat. 1 Inst. 390. b.

One Attainted after his Death.

THE Lord Coke observes that in Eire it has been seen, that a Man hath been attainted after his Death by Presentment. 1 Inst. 390. b.

Execution before Judgment.

UPON Issue joyned, and Tryal there­upon, a Verdict was found for the Plain­tiff, and the Postea was delivered to the Clerk of the Judgments to enter the Judgment; but through the Clerk's neglect Execution was taken out before it was entred: Hereupon the Court was moved to supersede the Execution, because there was no Judgment to warrant it. Roll said, it being but a neglect of the Clerk, Judgment might well enough be entred, tho' the Execution were issued forth, and because the Trial between the Parties is right. Stiles 229.

Where a Grant to a Monk shall be good.

AN English Man goes into France, and there becomes a Monk, yet is he capable of any Grant in England, because such Profession is not triable, and also because [Page 47] all Profession is taken away by Statute, and by our Religion holden as void, so adjudged in Ley's Case. p. tot. cur. 2 Roll. 43.

Nor will such Profession abroad disable him to bring any Action here, because it wants Trial, so that of foreign Profession the Common Law takes no knowledge. 1 Inst. 132. b.

The Freehold discontinued, and not the Rever­sion.

HUSBAND and Wife Lease the Lands of the Wife by Deed for Life, reserving a Rent; the Husband dies: This was a discontinuance at Common Law for Life, and yet the Reversion was not disconti­nued, but remained in the Wife: Other­wise if the Husband had made the Lease alone. 1 Inst. 333. a.

Reversion Revested, yet the Discontinuance re­mains.

FEME Tenant for Life, the Baron makes a Feoffment, and the Lessor en­ters for the Forfeiture; here is the Reversi­on revested, and yet the Discontinuance re­mains at the Common Law, (for the Wife was put to her cui in vita, and could [Page 48] not enter after her Husband's Death. 1 Inst. 335. a.

Where the Defendant may pray and have Judg­ment against himself.

IN Assumpsit to pay several Summs at several days, if the Action be brought for default of payment at the first day, before any other day of payment is incurred, and the Defendant plead Non Assumpsit, which is found against him, but the Plain­tiff will not enter Judgment for fear of being barred to have a new Action upon the same promise, if default be in the o­ther payments, yet may the Defendant enter Judgment according to the Verdict if he will. 2 Roll. 97. Shapeland and Cur­tis.

Vide Dyer. 194. n. 34. and 2 Roll. 97. That if a Verdict be found for the Defen­dant, and he will not pray Judgment, yet Judgment shall be given for him at the prayer of the Plaintiffs, because then he may have his Attaint against the Jury.

Where the Plaintiff shall have Judgment, tho' the Issue be found against him.

IN Replevin, the Defendant avowed for a Rent of 20 l. supposing that I. S. was seized in Fee of the place where, &c. and in 28th of Eliz. granted a Rent of 20 l. per annum, and for the Rent arrear an. 12 Jac. he avows, &c. it was found spe­cially upon issue, Non concessit, that T. S. was seized in Fee, and let that Land an. 23 Eliz. to I. S. for 21 Years, and he so possessed granted that Rent, and fi, &c. upon this Verdict, tho' the Issue be found Quod concessit; and so for the Avowant, yet because it appears that the Estate out of which the Rent is granted, was deter­mined a long time before the distress ta­ken, so that the Defendant had not any title to avow; 'twas held, That Judg­ment should be for the Plaintiff, tho' the Issue was found against him. 2 Cro. 442. Harrison and Metcalf. See 2 Cro. 221. 435. 640. Cro. Eliz. 157.

Agent and Patient.

IT is a Rule in Law that Idem non. po­test esse Agens & Patiens, and therefore a Man cannot present himself to a Bene­fice, make himself an Officer, nor Sue himself; and therefore when one having right to Land, has the Freehold cast up­on him by a latter Title, he shall be said in of his ancient Title, because there is none against whom he may Sue but himself, and he cannot Sue himself. Lit­tleton 147. b.

So no Man can summon himself, and therefore if a Sheriff suffer a common recovery, it is Error, because he cannot summon himself. Dyer. 188. a. Owen 51.

A Man cannot be both Judge and Par­ty in a Suit, and therefore if a Judge of the Common Pleas be made Judge of the King's Bench, tho' it be but hâc vice, it determines his Patent for the Common Pleas; for if he should be Judge of both Benches together, he should controul his own Judgment; for if the Common Pleas err, it shall be reformed in the King's Bench. (See Cro. Car. 600. Littleton Chief Justice of the Common Pleas, made Lord Keeper, yet continued Chief Justice; so Sir Orlando Bridgman was both Lord Keep­er, [Page 51] and Lord Chief Justice of the Common Pleas at the same time, for these places are not inconstent. 1 Siderf. 338, 365.)

A Bishop cannot hold a Parsonage by Commendam within his own Diocess, be­cause he cannot visit himself, or be Par­son and Ordinary too. 1 Siderf. 305.

If a Fine be levied to a Judge of the Common Pleas, he himself cannot take the Connsance, for he cannot be his own Judge. But if an Action be sued in C. B. against all the Judges there, there for necessity they shall be their own Judges. 2 Roll. 92, 93.

But Note, in many cases the same Per­son may be Agent and Patient, where the Law cannot do otherwise; as a Feme Tenant in socage may endow herself de la pluis beale. Lit. Sect. 48. So an Exe­cutor may pay himself by Retainer. So where one may vouch himself. 1 Inst. 390. a. So where one limits a Remainder to himself.

If one of the Chapter being sole seized enfeoffe the Dean and Chapter, by that he himself shall take by his own Livery. Perk. Fol. 42. See Hob. 138, 139. A Mit­timus directed to the Bishop of Durham, commanding him to send a Record to the Justices of the County Palatine to be tried there, is well enough, and may be [Page 52] executed by the Bishop, tho' he himself be one of the Justices. So one may be Judge and Officer diversis respectibus, as in a Redisseisin, the Sheriff is Judge and Offi­cer. Cro. Car. 138. So where a Mayor keeps the Goal. Cro. Eliz. 76.

Where one Impannelled on a Jury may chal­lenge himself.

A PEER of the Realm, or Lord of Parli­ament, Scil. Baron, Viscount, Earl, Marquiss, and Duke, propter honoris respectum, are not to be sworn on Juries, and if neither Par­ty will challenge him, he may challenge himself, for 'tis provided by Magna Charta, Quod nec super cum ibimus, nec super eum mittimus nisi per legal [...] judicium parium suo­rum, aut per legem terrae. Co. 6. 52, 53. But note, If a Peer is to be tried by his Peers, he cannot challenge any of 'em. 1 Inst. 156. b.

Where an Infant shall not reverse his Fine.

IF an Infant being a Feme covert, or other Infant, levy a Fine by grant, and render to her or him in tail, or for Life, and the Husband die, the Wife shall not have a Writ of Error, because she is Te­nant of the Land, and she cannot have a [Page 53] Writ of error against herself, so that she is without remedy: So in the case of the other Infant, per Catlyn. Owen 33.

Where one shall have a Formedon of Land that was never given.

'TIS holden in 42 Edw. III. 53. cited in Mary Pottington's Case. Co. 10. 37. b. that in some case a Man shall have a Writ of Formedon of Land that was never given, as if Lands in tail are lost, and the Tenant in tail recovers other Land in value, the Issue in tail shall have a Formedon of the Lands recovered in value, and yet those Lands were not given.

Livery and Seisin over a Wall.

IF one that is seised in Fee of an Orchard makes a Feoffment of it to I. S. and goes into the Orchard, and cuts a Turf, or a Twigg, and delivers it in the name of Seisin, to the Feoffee over a Wall of the same Orchard, the Feoffee then being in other Land (not men­tioned in the Feoffment) this is a void Livery. 2 Roll. 6. numb. 5.

[Page 54]Note, If it appears that the Feoffor in­tends to make an actual Livery, it shall never amount to a Livery in Law. 2 Roll. 7. n. 40.

Where a Man shall give and take by his own Livery.

IF there be Dean and Chapter, and one of the Chapter is sole seised of Land in Fee in his own right, and thereof en­feoffs the Dean and Chapter by Deed, and makes Livery and Seisin according to the Deed; here the Feoffor gives and takes by the same Livery. Perk. Sect. 205. So of a Mayor and Commonalty, &c.

Whether one can take, and loose a Fee by the same Livery.

TENANT in Tail makes a Lease for his own Life, the Remainder to the Donor in Fee; this gift of the Fee is void, because the Donor had it before: But if Tenant in Taile make a Lease pur auter vie, the Remainder to the Donor, this vests a new Fee in him, because that by the discon­tinuance he devested the ancient Fee out of him, and gave him a new Fee-Simple, by Marvine: But Knightly denied this to be Law, and that there should not be a new Fee-Simple in the Donor, because then he should take a Fee and loose a Fee by the same Livery at an instant, which cannot be, ideo quaere Dyer. 8. a. 9. a.

Slander.

A. THE Attorney of B. brought an Action against C. for saying to B. Your At­torney is a bribing Knave, and hath taken Twenty Pound of you to cozen me: Judge Warburton held the Words not Actionable, for an Attorney cannot take a Bribe of his own Client: But Hobart said he might when the reward exceeds measure, and the end against Justice, as to raze a Record, &c. and Hob. says, after he had spoken, Justice Warburton began to stagger in his opinion, and so the Plaintiff had Judg­ment. Hob. 8, 9. and 1 Roll. 53.

Infant.

AN Infant brought an Action of Tres­pass by her Guardian; the Defendant pleads that the Plaintiff was above Sixteen Years old, and agreed for 6 d. in Hand paid, that the Defendant have licence to take two Ounces of her Hair, to which the Plaintiff demurred, and adjudged for her; for an Infant cannot licence, tho' she may agree with the Barber to be trimmed. 3 Keb. 369. Scroggam against Stewardson.

Trespass for shaking a Sword at him.

A WOMAN shook a Sword in a Cut­ler's Shop against the Plaintiff, being on the other side of the Street, and in Tres­pass of Assault and Battery, there was a Verdict of the Assault, and not guilty of the Battery: 'Twas prayed to give no more Costs than Damages, and so granted, which was a Noble. 3 Keb. 283. Smith and Newsam.

Where a Man shall be forced to spend his Money against himself.

I. S. PRAYED a Prohibition to the Ecclesiastical Court at Salisbury, because his Wife Sued him there to be separated propter saevitiam, and Sentence was given for him, and he enforced to pay all the Costs for his Wife; afterwards she appeal­ed, and because he would not answer the Appeal against himself, and pay for the transmitting of the Record, he was ex­communicated, and now prayed a Prohi­bition; it was thought by the Court a very hard case that he should be obliged to spend his Money against himself; but because it was alledged that the Course was so in the Spiritual Court, they would [Page 58] advise, &c. and proceedings stayed in the mean time. Cro. Car. 16. Green's Case.

One Indicted for taking away a young Wo­man, and Marrying her.

ONE Brown was Indicted on Stat. 3 H. VII. cap. 2. for forcibly taking away and marrying the Daughter of one Sommers, a City Orphan in the Custody of the Chamberlain: Note, The Child herself being about Fourteen Years old was held a good Witness to prove the Fact; and the evidence was, that she was worth 5000 l. that she was menaced by the Defendant in a Vizard, and carried away in a Coach to Westminster, and the next day, with her own consent, but caused by the precedent menace, she married him, but was not defiled, having been surprised that day; he was found guilty, and had judgment to die, and was accordingly executed. 3 Keb. 193. See the Lady Fullwood's Case. Cro. Car. 482, 484, 488, 492. and Halès, Pla. Cor. tit. Felonies by Stat. that the taking a Woman against her Will, and marrying her, is Felony by the said Sta­tute: But such Maid, Widow, or Wife must have Lands, Tenements, or Goods, or be Heir Apparent; so that the Motive [Page 59] of taking away is Lucre, and the end Lux­ury, viz. Marriage or Defilement.

Action against a Cook.

TRIN. 8. H. IV. Rot. 57. Willielmus Milburn recuperat per Juratam per Billam suam in qua queritur versus Johannem Cut­ting, Cook, de eo quod ipse Johannes apud Westmonasterium vendebat dicto Willielmo unum Caponem pistum corruptibilem & recale factum, qui Capo assatus per quatuor dies in Hospicium Domini Regis, & iterum calefactus & pistus extitit, de quo postquam edit, vomi­tum horribilem fecit, ita quod infirmabatur per duas septimanas, recuperat inquam Viginti Solidos pro damnis: And Roll says he was informed, that it appears upon the Re­cord at large, that the Judges increased the damages. 1 Roll. 89.

Burglary.

A. LEASES to B. a Shop, parcel of his dwelling House, to work in, where B. works in the day, but never lodges in it; this Shop is broke open in the night, and several Goods stollen out, yet not Bur­glary by the opinion of Tanfield, Chief Baron, and Justice Hutton, because by the severence thereof by Lease to him who [Page 60] had it as a Shop, and his not inhabiting therein, it was not any Mansion-House, and so no Burglary, but ordinary Felony. Hutton 33. Fine. and Hales Pla. Cor. 83.

A Chamber in an Inns of Court, where a Person usually lodges, is a Mansion-House, within the Law; so is the Church; so is a Shop, (not severed by Lease) Dal­ton's Justice, cap. 151. Hales ubi sup.

A Thief goes down a Chimney to rob, it is Burglary, tho' here was no actual breaking: (for one is not bound to stop up his Chimney) ibid.

A Guest comes to a common Inn, and the Host appoints him his Chamber; and in the night the Host breaks into his Guest's Chamber to rob him; this is Bur­glary. Nota, Dalton cap. 151.

Challenges and Duels.

IT is against the Law of Nature and of Nations (as well as against the Law of God) for a Man to be Judge in his own proper Cause, especially in Duello, where Fury, Wrath, Malice, and Revenge are the rulers of the Judgment: And there is nothing honourable (whatever some pretend) that is against the Laws of one's Country, and the Law of Nature and Na­tions. 3 Inst. 157.

The Killer is in a worse Condition than the Kil­led.

HE that slayeth is in worse case than he that is slain, for the Murderer loseth not only his Lands and Goods, but his Life also, and his Honour, which he so much respected; for by his Attainder his Blood shall be currupted, and if he were Noble, or Genteel before, he thereby be­comes Ignoble and Base, and he that is slain by Law loseth none of them; so as hereof it is truly said, Infoelix pugna, ubi majus pe­riculum incumbit Victori, quam Victo. ibid.

Bare Challenge punishable.

IF any Subject by Word, Writing, or Message challenge another to Fight with him, this is an Offence before any Com­bat be performed, and punishable by Law, and it is contra pacem, coronam, & dignita­tem, for Quando aliquid prohibetur, prohibe­tur & omne per quod devenitur ad illud ibid.

Much more if they Fight, (tho' no Death ensue, nor Blood drawn,) which being an Affray, and a great breach of the King's Peace, is to be punished by Fine and Imprisonment, and to find Sure­ties for their Good Behaviour. ibid.

What Duel allowed by Law.

THERE is a Duellum allowed by Law depending a Suit for the Trial of Truth, (see 2 Inst. W. 1. c. 40.) which kind of Bat­tail in case of Appeals, and Writ of Right is by publick authority and course of Law, whereunto all the people by an im­plied consent, are Parties; and (as some hold) has it's Warrant by the Word of God, by the single Battel between David and Goliah, which was strucken by pub­lick Authority. ibid.

Where Kings of England have offered to try their Title by single Combat.

KING Edward III. in the 16th. Year of his Reign, having War with the French King for his right to the Kingdom of France, out of the greatness of his Mind, for the love of his Subjects, the saving of Christian Blood, and a speedy Trial of the right, offered the single Combat with the French King, but He refused it.

So after long and chargeable Wars be­tween the Crowns of England and France, for the right of the Kingdom of France, it was an honourable offer which King R. II. made to Charles the French King [Page 63] for saving of guiltless Blood, and to put an end to that bloody and lingring War; 1. Either a single Combat between the two Kings. 2. Or a Combat between the two Kings, and three of their Unkles on either side. 3. Or that a fit day and place might be assigned when under the universal conflict of both their Armies, an end might be put to the War. The Duke of Lancaster, according to his Commission, made these offers from the King of Eng­land to King Charles of France, but he was auditus, sed non exauditus; for King Charles liked none of these offers.

And in Anno Domini 1196. Philip, King of France sent this Challenge to our Richard the First, That King Richard would choose him five for his part, and He, the King of France, would appoint five for his part, which might fight in Lists for trial of all matters in controversie between them, for the avoiding of shedding of more guilt­less Blood. King Richard accepted the Offer, with condition that either King might be of the number; but this condi­tion would not be granted. See 3 Inst. 159

Justs and Tournaments.

IF at a Just or Turnament, or at the Play with Sword and Buckler by the King's Command, one Man kills another, this is no Felony. It was enacted in the Reign of King H. II. that if in such case one was slain, it should be no Felony, for that in friendly manner they contended to try their strength, and to be able to do the King service in that kind upon occasion. 3 Inst. 56. Otherwise of fight­ing at Barriers, or running at Tilt or Justs, without the Kings Command, where­by a Man is slain; and altho it were by the King's Command, yet it was holden Felony by the Justices, tempore, H. VIII. for it was against Law. Bro. Coron. 228, 229. Dalton, pag. 352. But it is holden o­therwise now, Hob. Rep. 134. in Weaver and Ward's Case.

Battel, Champion.

AN Approver that kills the party ac­cused in Battel, or a Champion that kills the other Champion in a Writ of Right; or the Plaintiff or Defendant in an Appeal that kills the other in Duello; in these cases the party killing shall for­feit [Page 65] nothing, for these Combats or Duels are such trials as the Law appoints in such cases. 3 Inst. 221.

Whoever takes upon him to be a Cham­pion for another, and becomes recreant, i. e. a crying Coward, or Craven, he shall lose liberam legem for his perjury, that is, become infamous, and of no credit, never to be a Witness or Juror. ibid. You may read the form hereof, and the Oath he takes, 2 Inst. W. 1. cap 40. and Glanvil, lib. 2. cap. 3.

So if the Appellant join Battel, and cry Craven, he shall also lose liberam legem; but if the Appellee cry Craven, he shall be hanged: But if they Combat until Night come, and Stars appear, the De­fendant in the Appeal goeth quit, and the Plaintiff in that case loses not liberam legem. 3 Inst. ubi surpra.

In a Writ of Right, if the Tenant wage Battel by his Champion, and the Cham­pion after become blind by infirmiry, and not ex stultitiâ, he shall he discharged of the Battle. 3 Inst. 158. So of an Appel­lee. If the Appellant after Battel waged become blind upon any occasion, the Ap­pellee in favorem vitae shall go quit. So where the Trial becomes otherwise im­possible by the act of God, or default of the Appellant. 3 Inst. 159.

Provocation to a Challenge.

IN the Lord Hobart's Book, Fol. 120. is this Case.

The Lord Darcy, and Gervase Markham were hunting together, and Markham and one Beckwith (a Servant of my Lord's) fell together by the Ears in the Field, and Beckwith threw Markham down, and was upon him, cuffing of him; the Lord Darcy took his Servant off, and reproved him, and yet Markham chid my Lord, charg­ing him with maintaining his Man; the Lord Darcy replied, That he had used him kindly, for if he had not rescued him from his Man, he had beaten him to Rags; Whereupon Markham (after this) wrote five or six Letters to my Lord, Sub­scribing his Name to 'em, but sent 'em not, but dispersed them unsealed in the Fields, to this effect, That whereas the Lord Darcy had said, that but for him his Man Beckwith had beat him to Rags, he lyed, and as often as he should speak it he lyed, and that he would maintain with his Life; adding, That he had disper­sed those Letters that he might find them, or that somebody else might bring them to him; and concluded, That if he were desirous to speak with him, he might send [Page 67] his Boy who should be well used. My Lord Darcy sued Markham for this in the Star-Chamber, who was fined 500 l. for the Letter thus dispersed was in the nature of a Libel, slanderous and defa­matory to my Lord, and tho' without a­ny direct challenge to fight, yet there were plain provocations to it, and as it were to call and challenge my Lord to challenge him: And Hobart in his Sen­tence said, That the Law did not allow any Man to strike in private revenge of ill Words, because there is no proportion between Words and Blows; but he that is stricken may strike again. 'Tis true, there is a Judicial Combat allowed be­fore the Constable if a Man be called Traytor, where for matter of satisfaction in point of Honour, (as it is called) it was left to the Lord Marshal as a di­stinct Court and Consideration from the Star-Chamber.

The Lord Hob. said also in this Case, That such Insolent Persons ( Challengers and Duellists) take upon them to frame a Law and Commonwealth to themselves, as if they had power to cast off the Yoke of Obedience to Peace and Justice, enacting among themselves as an undoubted posi­tion, That a Man wronged may with his Sword in his Hand, require sa­tisfaction [Page 68] of any Man, being no Privy Counsellor, and with a mild Word to qualify the detestation of this kind of Murder, they have made it a familiar Phrase, That he was killed fairly, and he was killed in equal fight, which Arrogancy and Rebellion must be subdued. And Judges and Jurors must not give way to this impious distinction of fair and foul Killing, but must execute the Law with severity upon all Murtherers; for the Law knows no such distinction: This he vow­ed publickly to do, taking it to be the only Remedy against this damnable Pre­sumption. The King approved this Sen­tence, being pleased to say, The Lord Hobart did hit his own mind in it. (King James, we know, was a most Peaceable Prince.)

Mr. Selden says, a Duel may still be granted in some Cases by the Law of England, and only there. That the Church allowed it anciently appears by this, In their publick Liturgies there were Prayers appointed for the Duellists to say, the Judge used to bid them go to such a Church and Pray, &c. But whether is this lawful? If you grant any War lawful, he makes no doubt to evince it: War is lawful, because God is the only Judge be­tween two, that is Supream: Now if a [Page 69] difference happen between two Subjects, and it cannot be decided by human Te­stimony, (as I will give an instance pre­sently) why may they not put it to God to judge between them by the permission of the Prince? nay, what if one should bring it down for Argument sake to the Sword-Men; one gives me the Lye, 'tis a great disgrace to take it, the Law has made no Provision to give remedy for the Injury, (If you can suppose any thing an Injury for which the Law gives no remedy) why am not I in this case Su­pream, and may therefore right my self?

But now for the Instance I promised, it is in Fuller's Holy War, Page 44. Thus,

Whilst Godfrey, Duke of Bovillon, (after­wards King of Jerusalem) lived in the Court of Henry IV. the Emperor, there happened an intricate Suit betwixt him and another Prince about Title of Land, and because Judges could not untie the Knot, it was concluded the two Princes should cut it assunder with their Swords in a Combat: Godfrey was very unwil­ling to fight, not that he was the worse Soldier, but the better Christian: He made the Demurr not in his Courage, but in his Conscience, as conceiving any private Title for Land not ground enough for a Duel; yea, we may observe gene­rally, [Page 70] that they who long most to fight Duels, are the first that Surfeit on them; Notwithstanding he yielded to the Tyran­ny of Custom, and after the fashion of the Country, (so it was used elsewhere besides in England) entred the Lists, when at the first encounter his Sword brake; but he struck his Adversary down with the Hilt, yet so that he saved his Life, and gained his own Inheritance.

See the 3 Inst. fol. 157, 158, what Du­els are lawful, and what not. And the 2 Inst. fol. 247.

Note, Tho' there be no Proportion be­tween Words and Blows, so as to excuse a Battery, yet if I am provoked by ill Language, and do thereupon draw my Sword, and in heat of Blood kill the Par­ty; whether the Words shall not be ac­counted as a sudden Provocation to make it Manslaughter? to which purpose, vide the following Case in Jones, 432.

David Williams, a Welsh-Man, having a Leek in his Hat on St. David's day, being angry at one Redman a Porter in the Street for pointing at a Jack of Lent there hanged with a Leek, and saying to the said David Williams, Look on your Country-Man, did suddenly take up a Hammer from a Stall, and violently threw it at Redman, but missed him, and hit one Mar­bury, [Page 71] who was sitting in his Shop, so as he died. This was agreed not to be with­in the Statute of Stabbing, but that he might have his Clergy.

Vide 1 Siderf. 277. the Lord Morley's Case, where it was agreed by some of the Judges That Words without Blows is not any Pro­vocation, because it is not answerable, but that to make a Provocation to fight, there must be Blows.

'Twas likewise agreed by them, That if there be a Provocation in a House, whereupon they fight, before that their Reason had gained a Predominance over their Passion, and one is killed, this is but Manslaughter: But that if after the Provo­cation given, they say, that this is not a con­venient Place, (and so have reason to Judge of the Conveniency) and appoint ano­ther Place, tho' they fight presently after, if one be killed, this is Murther, for the Circumstance shews their Temper.

A. and B. fall out, A. saith he will not strike, but will give B. a Pot of Ale to touch him; B. strikes, A. kills him. Mur­der. Hales Pla. Cor. tit. Felonies.

A. distorts his Mouth, and laughs at B. who thereupon kills him, Murder. ibid, and cites 42 El. Brame's Case.

[Page 72]If there be a quarrel between A. and B. and A. Challenges B. who declines it, but at length upon importunity, and to vindi­cate his reputation, meets and fights, and kills A. Murder. 14. Jac. Taverner's Case.

A. and B. are in Malice, A. challenges the Field, B. refuses to meet, but says he shall go to morrow to such a Town: A. meets him, and assaults him, B. kills him, Manslaughter and no Murder. Hales ubi sup.

Two strive for the Wall, and one kills the other, Manslaughter. Two play at Foils, and one kills the other, Manslaughter. Sir John Chichester's Case, ibid.

Testator nods one a Legacy.

NO Words, or Language, or Signs al­most, but may serve for a Bequest, provi­ded that they be but sensible and intelligi­ble, in regard of that vast extent and lati­tude of Words, which the Law allows Testa­tors in making Wills, and bequeathing Le­gacies: Insomuch, that tho' the Testator should quite hold his Peace, and but nod thee a Legacy, whether he can speak, or not, or whether asked thereunto, or not, the Legacy is good. Understand not this of the Testator nodding between sleep and wake, between sence and no [Page 73] sence, but when by his nod he makes an intelligible sign of his mind and intention; the reason hereof is, because the Law more favours a Testator's Will than his Words. Orphan's Legacy, 444. 4.

Legacy to a Child unborn.

IF a Legacy be given to a Child in the Womb, and the birth prove monstrous, i. e. very contrary to the common form and shape of Mankind, as with a Crow's Beak instead of a Nose, or with the Face of an Ass instead of a better; in such an ill favoured case the Legacy is void: O­therwise if 'tis born only with some of the less principal Members imperfect or supernumerary, as with half a Thumb, or two Thumhs, or six Fingers on a Hand, or the like: But if the Birth (not acci­dentally) be imperfect as to its integrals, or defective as to its more noble and prin­cipal Parts and Members, as but with one Eye, or one Hand, although the Creature hath Life, the Legacy hath none, for al­beit an amplification of the natural form shall not prejudice, yet a mutilation there­of will. Note, this extends not to Herma­phrodites, who are not excluded a single capacity, for that Sex which most pre­vails with them in nature, shall likewise [Page 74] prevail in Law as to the Legacy bequea­thed. Orphan's Legacy, 475.

Devise.

IF a Testator devises a House to A. and after gives it by deed to B. and then buys it of B. again, and dies, and A. de­mands the House, he cannot recover it, unless he proves that the Testator by a new declaration of his Will, intended he should have it. So if a devised House be pulled down, and another built by the Devisor in the same place, the devise is void, unless it can be proved that the Devisor intended otherwise. Orphan's Le­gacy, 449. 15.

A Minister sworn of the Jury.

ONE Beecher, a Gentleman of the Mid­dle-Temple, was returned in an Attaint, and before the Return of the Pannel, he became a Minister of the Church, and at the day of the Return he appeared, and prayed to be discharged according to the Privilege of those of the Ministry. But the Court allowed not of his Pra­yer, because he was a Lay-Man at the time of the Pannel made, and so he was sworn 4 Leon. 190. Beecher's Case.

Forgery of a Deed.

ONE Howel Gwin was convicted of Forging a Deed by putting a Dead Man's Hand unto it, and condemned in 100 l. Fine, and to stand on the Pillory two hours before the Hall Door: Memorandum, he cut off a dead Man's Hand, and put a Pen, and a Seal into it, and so Signed, Sealed, and De­livered the Deed with the dead Hand, and swore, that he saw the Deed Sealed and Delivered. Stiles Rep. 362, 363.

Non Obstante.

THE Clause of Non Obstante was first used by the King in his Grants, and o­ther Writings in the time of Henry III. about the Year 1252. Matthew Paris calls it an odious and detestable Clause; and Ro­ger de Thrusby, then Justiciar, fetching a deep Sigh at the fight hereof in the King's Grant, cryed out of both the time and it, saying, It was a Stream derived from the Sulphureous Fountain of the Clergy. Speed 530.

Praesentia Corporis tollit errorem Nominis.

IF I give a Horse to I. D. being present, and say unto him, I. S. take this Horse; 'tis a good gift, notwithstanding I call him by a wrong Name: Otherwise if I deliver it to a Stranger to the use of I. S. where I meant I. D.

So if I say to I. S. here I give you my Ring with the Ruby, and deliver it with my Hand, and the Ring bear a Diamond and no Ruby; this is a good gift, not­withstanding I name it amiss.

Veritas nominis tollit errorem Demonstratio­nis.

IF I grant Prata mea in Sale, continentia 10. Acras, and they contain 20 Acres; the whole 20 pass.

If an obligation be made to I. S. filio & haeredi G. S where indeed he is a Bastard, yet this Bond is good.

So if I grant Land Episcopo nunc Londi­nensi qui me erudivit in pueritia; 'tis good, tho' he never instructed me.

The same Rule holds of Denomination of Times, and therefore if I oblige my self to do some personal Attendance upon A. on Innocent's day, being the day of his [Page 77] Birth, and A. were not born that day, yet shall I attend. Bacon's Elem. 87. 91.

What Acts may be done in the Night.

AN Arbitriment made and delivered in Writing the last day after Sun Set, is good enough, for Judgments and Arbitri­ments require long Advice. Finch's Law, 72. and Cro. Eliz. 42. and 676. An Ar­bitration is a judicial Act, which may be well done in the Night.

Goods may be distrained in the Night for damage feasant, otherwise they may be gone before he can take them: But you cannot destrain in the Night time for Rent behind. 1 Inst. 142. a.

A Rent is payable at a day, he has all the day 'till Night to pay it; but if it is a great Summ, he must be ready to tell it before Sun set, for the other is not bound to tell it in the Night. ibid.

Livery and Seisin in the Night by an Attorney, good. Cro. Eliz. 42. said there to be so adjudged. Yet an Atturnment (which is in lieu of Livery, 1 Inst. 49 a.) cannot be made after Sun-set. Stiles Pract. Reg. 47. yet sure 'tis less solemn than Li­very, which must be upon the Land, or in view of it, whereas an Atturnment is but an Assent which may be given any where. ergo Quaere.

License to sow Land, no Lease.

IN Sir William Essex his Case, Hob. Rep. 35. The Lord Hobart says, he is clearly of Pa­ston's opinion in 21 H. VI. 37. That if one license me to sow his Land, that is no Lease of the Land, and therefore if I sow the Land, the Owner shall reap it.

Gift.

A BORROWED 100 l. of F. and at the day brought it in a Bag, and cast it upon the Table before F. and F said to A. (be­ing his Nephew) I will not have it, take it you, and carry it home again with you: Per Curiam, it is a good gift by paroll, being cast upon the Table, for then it was in the possession of F. and A. might well wage his Law: Otherwise if A. had only offered it to F. which had been only a chose in Action. not to be given without a Writing. Noy, 67. Flower's Case.

Where one that is no Party to a Record, shall have Error to reverse it.

A FEME covert was Sued as a Feme Sole, but by her Husband's Name; she [Page 79] appeared and pleaded, and Judgment was given against her: The Baron and Feme joyn in a Writ of Error. The Court said, a Stranger to the Record may not have a Writ of Error to reverse it, but that is, because he may have another remedy to avoid the prejudice: But in this case the Baron hath no other remedy, for his Wife is taken in Execution, and by this means he shall lose her Society, and so it was reversed. Stiles Rep. 254. 280. Hay­ward and Williams.

Where an Attaint may be brought by one that is no Party to the Issue.

IF two commit a joint Trespass, there can be but one Satisfaction; and there­fore if they be sued in one Action, tho' they may sever in Pleas and Issues, yet one Jury shall assess damages for all; and note, as to the damages, he that is no Party to the Issue, shall have an At­taint as well as his Fellows. Hob. 66. Cock and Jennor. 2 Cro. 349. accord that if the damages be too great, any of the Defendants may have an Attaint, tho' he be not the same Party against whom the Verdict was found: The reason hereof is given in Sir J. Heydon's Case. Co. 11.5. b. that although he be a Stranger to the Is­sue, [Page 80] yet because that by the Law he is privy in charge, he shall have an Attaint.

Vessels go with the Wines as Accessories, in a Bequest.

A BEQUEST of Wines doth convey the Vessels wherein they are, to the Lega­tary; not as if a Man in his Liquor should think (for no Man else would) the Ves­sels were part of the Wines (as Medals of Gold or Silver are part of such Metals) but because the Testator's intention in the Eye of the Law, seems to bequeath them as Accessories to the Principal; excepting such which by reason of the greatness of their Bulk, and wide Capacity cannot without much difficulty be removed out of the Cellars where they are. Orphan's Legacy, 474. 103.

A Legacy taken away under a Condi­tion, is understood as given under the contrary condition, as if a Testator saith [A. B. shall not have 100 l. if my Ship which I expect home should chance to perish in the Sea.] in this Case A. B. shall have 100 l. if that ship shall safe arrive. Orphan's Le­gacy, 464. 24.

Christian Name.

DECLARATION in Assumpsit quod cum quidam ...... Alison was indebted to the Plaintiff for Wares sold; the Defendant in consideration the Plaintiff would for­bear, did promise to pay, if the said ...... Alison did not pay: After Verdict and Judgment for the Plaintiff, error was assigned that no Christian Name was al­ledged. Chief Justice Rainsford, and Twis­den were of opinion, That the Plaintiff must averr the certainty of his Praenomen or Christian Name, and that Verdict helps it not, no more in Suit against the third Person than against the Party hiself to whom the Goods were sold; and it cannot be intended that quidam was the Christian Name, it being with a blank. The other Judges contra, because he may be a Jew, or an Anabaptist that hath no Christian Name, and the for­bearance only is the ground of the Acti­on. Indictment for stealing Goods de quo­dam ignoto, good, because the stealing is the substance: And tho' the Defendant might have demurr'd, yet after Verdict it is well enough. 3 Keb. 769. Bechino and Gumly. Adjornatur.

Bond not to exercise his Trade.

A MAN was bound in an Obligation to another, that he should not use his Art in such a Town for two Years: Hull swore by God if the obligee were present he should go to Prison 'till he had paid a Fine to the King, because the Bond is contra Legem terrae. 2 H. V. fol. 5. b. See tit. Imprison­ment. Fitz. 14.

Justice Reeve said ( March Rep. 193) he was confident you shall never find one Report against this opinion of Hull, such Bond being void, because it takes away a Man's livelihood, which is one reason a­gainst Monopolies, which is grounded up­on the Law of God, for in Deuteronomy, Chap. 24. Ver. 6. it is said, No Man shall take the nether, or the upper Milstone to pledge, for he taketh a Man's Life to pledge. Which may also be the reason that the Utensils of a Man's profession cannot be destrein­ed, for thereby the means of his Liveli­hood should be taken away. See Noy 180.

It may not be impertinent to set before you the following differences under this Head: for some Books say, that a promise not to exercise ones Trade in such a Town is good, but that a Bond in such case is void, [Page 83] March Rep. 77. pl. 121, and 191. pl. 238. Bar­row and Wood.

Broad and Jollyffe's Case, 2 Cro. 596. is That one may Upon Consideration agree; and promise, that he will not keep Shop in such a Vill or Street, for that Volenti non fit injuria. And in the Case of Prugnel and Goss, Allen's Rep. 67. Roll. Just. takes these differences. Where a Bond or Promise re­strains the exercise of a Trade, altho' it be as to a particular place only; yet if it be upon no consideration, the Bond and Promise is void: But if there were a Con­sideration for the restraint, as if A. assign a Shop, or sell braided Wares to B. there in respect of the apparent prejudice which may accrue to B. if A. should continue the Trade; such a Bond or Promise is good, adjudged so in Froward's Case upon a Writ of Error. But note, although there be such a consideration, yet if the re­straint be general throughout England, it is void. Vide 1 Roll. 16, 17. and Moor, 115. and 242.

Cunning Practice.

A MAN was Arrested in an Action of Debt, and presently made a Warrant to an Attorney to acknowledge a Judgment for him, upon which he was discharged; [Page 84] but afterwards he revoked the Warrant of Attorney, before the Judgment was con­fessed; the Court observing this cunning practice, commanded the Attorney to plead Non sum informatus, that Judgment might be entred, and said, they would de­fend him against the Party, if he brought an Action against him. Latch 8.

Trick in the business.

THE Court was moved, that there might be a Rule of Court for I. S. upon satisfaction made of a Judgment obtained by him, to acknowledge Satisfaction; but the Court denied it, and said there was some Trick in the business, for no doubt but the Party upon receipt of what is due to him, will acknowledge Satisfaction without a Rule to compell him. Stiles 164.

The River of Thames a High-Way.

MR. Attorney General prayed Judg­ment in an Information against Smith for laying Logs (which is a Nuisance) on the River Thames: The Defendant pleaded the general Pardon, but Nuisances on the High-Way being excepted therein, and this being as much a High-Way as the Road, and the Hundred answerable for [Page 85] Robbery thereon, Judgment was given for the King. 3 Keeble 759.

Intention of the Parties.

A. CONTRACTS with B. for 18 Bar­rels of Ale, paying a certain summ of Money, and A. would have kept the Bar­rels after the Ale was spent, but adjudged he should not, for the intent of the Parties never was that the Vendee should have them, but only the Ale, and the common usage is that the Vendor shall have the Barrels again. 27. H. VIII. 27. b. cited 1 Bulls, 175.

So if one covenant with another, that if he come to his House, he will give him a Cup of Wine, and he comes; he shall not have the Cup also, because it was ne­ver the intent of the Party. ibid.

Countermand of Arrest.

A. DELIVERS a Writ to the Sheriff to arrest I S. and after forbids him, and desires the Writ again; the Sheriff refuses, and arrests I. S. Quaere; if I. S. may have faux Imprisonment against the Sheriff? It seems he may not: Whether shall A. have an Action upon the Case against the She­riff? it seems he shall, for it may be he is [Page 86] prejudiced: Whether the Sheriff shall have an Action against A. for his Fee? Latch Rep. 19.

Slander by an Infant, and against an Infant.

AN Action upon the case for Words lies against an Infant of Seventeen Years of Age, for Malitia supplet aetatem. Noy 129.

An Infant brought an Action against one Child for these words, I charge thee with Felony, and had a Verdict and Judg­ment, tho' moved in arrest, &c. because not averred the Plaintiff was of an Age to commit Felony; for the Defendant must plead that, and shall not be averred by the plaintiff to avoid his own Action. Noy 124. Baily against Child.

Grant of the next avoidance by Letter.

I. S. BROUGHT a Quare impedit, de­claring upon a grant of the next Avoid­ance; the Defendant demanded Oyer of the Deed, and the Plaintiff shewed a Let­ter which was written to his Father by the Patron, wherein he tells the Father that he had given to his Son (the Plain­tiff) the next avoidance: Whereupon the Defendant demurred, and adjudged for him, for the Letter was a meer banter, and [Page 87] the grant not good without Deed. Owen 47. and Cro. Eliz. 163, 164.

A. granted the next Avoidance to B. and C. and was bound to B. in an obli­gation that he should enjoy the said Pre­sentment without any disturbance or claim of the said A. C. released to A. his interest in the said Advowson; the Church be­came void, A. offered to joyn with B. in the presentation: It was holden the obli­gation was forfeited, notwithstanding that A. had a puisne Title after the Bond en­tred into. 4 Leon. 18. Bluet's Case.

Legacy of Books.

A TESTATOR saith [I give my Phy­sick Books to my Son, if hereafter he shall study Physick; but if he make the Law his Profession, then let him have my Law Books.] the Son after studies Law and Physick both; he shall have the Testator's Books of both Professions. Orphan's Legacy, 472, 89.

If the Testator saith [I bequeath or com­mit my Estate as well as my Soul to God.] whoever hath his Soul, his parish Church shall have his Estate. Orphan's Legacy, 471, 81.

Bequest of Horses.

IF a Man bequeath all his Horses, his Mares shall go too, but not è contra; nor by a bequest of Geldings. ibid. 467, 53, 56. and fol. 441, 12.

Devise.

A. DEVISES that B. shall be his Heir, and C. devises Lands to A. and his Heirs, B. shall have those Lands as Heir to A. for a Devise shall not be construed void, when it possibly by any probable constru­ction can be made good: So note, a Man may be Heir ex vi Testamenti, before he is Heir ex vi Doni. 2 Siderf. 27.

Heir by descent of an Estate that by possi­bility could not be in his Ancestor.

LAND is given to A. and B. so long as they jointly together live, the Remain­der to the right Heirs of him that dies first; A. dies, the Remainder vested not during the Life of A. (his Death must precede the Remainder) and yet his Heir shall have the Land by descent. 1 Inst. 378. b.

[Page 89]Note, whensoever the Ancestor takes a Freehold, and after a limitation is made to his right Heirs, they shall not be Pur­chasers, tho' in Words it be limited by way of Remainder: But if a Lease for Years be made to A. Remainder to B. in tail, Remainder to the right Heirs of A. there the Remainder vests not in A. but the right Heirs shall take by Purchase, if A. die during the Estate tail. 1 Inst. 22. b. 376. b. 319. b. 2 Roll. 417.

Where a Prisoner shall not be judged in Execu­tion, tho' he yield himself unto it.

A PRISONER having been in execu­tion, was suffered by the Gaoler to go out, and then came into the Gaol again, and remained there till the time of another Sheriff, and then escaped; the new She­riff is not answerable for it, by Hobart: For when he was let to go abroad volun­tarily by the Gaoler, the Execution was utterly discharged, so as he could not be taken again legally, nor so judged in Exe­cution, tho' he would yield himself unto it, or the Creditor so allow him: Nei­ther can two Sheriffs be chargable Simul & Semel for two escapes out of one and the same Execution at the same time. Hob. 202. Sheriff of Essex his Case.

[Page 90]Note, it was agreed by the Court in the Case of Allanson and Butler, 1 Siderf. 330. that if a Prisoner in Execution escape by negligence, he may be retaken either by the Sheriff, or the Plaintiff; but if he escape by the agreement of the Sheriff, he cannot retake him, but the Plaintiff may, for otherwise by the death or insuf­ficiency of the Sheriff, he should be left without remedy.

Execution Discharged.

A. HAD a judgment and execution a­gainst B. who was thereupon taken, and in custody in the King's Bench Prison; A. consented afterwards that B▪ should come to him out of Prison to the Horse Shooe Ta­vern, which was out of the Rules, with­out a Keeper, or Rule of Court, thinking to make some agreement with him: B. accordingly went to the Tavern, but be­cause they could not agree the Matter, A. took him up again upon the same Execu­tion in the same Prison, whereupon B. brought an Audita Querela, and adjudged well, for the Execution was discharged by the Prisoner's going at large with the Plaintiff's consent, and so could not be re­taken upon it! Stiles 117. Walker and Al­der's Case, and 147 Accord.

Slander of a Midwife.

A MIDWIFE brought an Action upon the Case for saying, She is an ignorant Wo­man, and hath small practice, and is very un­fortunate in her way, but goeth about feeling Women's Bellies, but there are few but are sick or die under her Hands. Judgment was gi­ven for the Plaintiff. 2 Keb. 489. Wharton and Clover.

A Sheriff cannot upon private process rush into a House, which by Craft he gets to be opened.

AN Under-Sheriff and others upon a private Process at the Suit of C. against D. who lay in the House of A. came and knocked at A's. Door, whereupon A's Wife came to the Door, and opened it a little to see who was there, upon which they presently with their Swords drawn, rushed in upon her whether she would or no, and bare her down, and brake open the Chamber Door where D. lay, and brake also B's House adjoining to it, to get Instruments to break doors withal, and hurt divers in the House: The Lord Chief Baron, and Lord Hobart held the first entry unlawful, for the opening of the Door was occasio­ned by 'em by craft, and then used to the [Page 92] violence intended. Hob. 62. See Co. 5. 92. b. and 2 Cro. 556.

One Man kills another taking him in Bed with his Wife.

ONE Maddy taking of Nabor in the Act of Adultery with his Wife in his House, killed him upon the spot, and the Court conceived it but Manslaughter, here be­ing a sufficient provocation, and no pre­cedent Malice; so he had his Clergy, and was gently burnt, &c. 2 Keb. 829.

Outlawry must be reversed in Person.

SIR W. Reade being outlawed upon an Indictment for not repairing a Bridge, brought a Writ of Error, and moved to pursue it by Attorney, and put in Bail, and not to appear in Person: But all the Clerks of the Crown-Office affirmed that none could assign Error upon Indictment but in Person, and so also to put in Bail: The Court greatly pitied Sir William's Case, be­cause he was Ninety years of Age, and very infirm, having kept his Chamber for a year and more by reason of his infirmi­ty; and they conferred with the Attorney General how it might be done; but all at length resolved it could not be admitted, [Page 93] being against the course of the Court, and doubted if the King's Privy seal could help him: Sir William was thereupon brought from his House ten miles from London in a Horse Litter upon Mens shoulders to the Bar, and came into the Court, and assign­ed his Error, and put in bail to prosecute, &c. The Error was, that he was named in the Indictment and Exigent Willielmus Reade Miles, de Comit. Midd. without say­ing de such a place, alledging some place certain within the County, and therefore reversed. 2 Cro. 616.

Note, some time before this Case, an Outlawed Person prayed to appear by At­torney, and upon Affidavit made of his sickness, the Court ex gratiâ speciali allow­ed him to appear by Attorney, but com­manded the Clerk to enter it, Quod venit in propriâ personâ, the Law being clear that upon an Outlawry he must appear in Per­son. 2 Cro. 462. vid. Stiles 297.

See 4 Leon. 22. Taylor's Case, this diffe­rence agreed, where matter in Fact is plead­ed to avoid an outlawry, it ought to be in Person; but a matter of Record might be pleaded by Attorney.

Scribere cum Dasho.

ONE Coswell outlawed, moved to re­verse it, because instead of proxim. there is used px. for it's abbreviation, without any dash; then instead of Infra scr. the abbre­viation of Infra scriptam, there is used Infra sr. for which exceptions 'twas quashed. Stiles 18.

Nonsence, how to be construed in giving a Le­gacy.

AN Imperfect Speech in bequeathing a Legacy may be reduced to such as is equi­valent to that which is perfect; if the Te­stator's mind and meaning may rationally be presumed: For example, the Testator saith, [ Let 10 l. to A. B.] without the Words [Be given] Orphan's Legacy 464, 12.

A. devises, then takes the Devisee to Hus­band, &c.

ALICE Allen made her Will, and there­by devised certain Messuages to James A­mynde and his Heirs, and afterwards she married the said James, and during the Coverture she often said he should never have the Messuages by the said Will: She [Page 95] died without Issue, he surviving, and ad­judged that her marriage revoked the Will, for it is against the nature of a Will to be irrevocable, since it takes not any effect 'till the death of the Devisor, and her own Countermand after marriage was of no force, because then she is wholly subject to the Will of her Husband; there­fore the taking of him to Husband being her own proper Act, amounts to a Coun­termand in Law, otherwise it were very mischievous to Women, that their Wills should be in force whether they will or no; and 'tis not fit to leave it in the Wife's choice to Countermand, because the compulsion of the Husband is to be feared. Co. 4. 60. b. Force and Hemblin's Case.

King Edgar's Law against Drinking.

THE Danes first brought into this Realm Excessive Drinking, and King Edgar permit­ting many of them to dwell here, was at length constrained to make a Law against this excess, (which never comes alone) driving certain Nails into the sides of their Cups, as limits and bounds, which no Man upon great Pain should be so hardy as to transgress. 3 Inst. 200.

If the excess of Drinking extend to the loathsome and odious vice of Drunkenness, [Page 96] it is punishable by Act of Parliament: See 4 Jac. cap. 5. 7 Jac. cap. 10. 21 Jac. cap. 7.

The Ancient Britains were free from this Crime. Ecce Britannorum mos est laudabilis iste, Ut bibat Arbitrio Pocula quisque suo.

A Drunkard is voluntarius Daemon, and what hurt or ill soever he does, his Drun­kenness aggravates it, Omne Crimen Ebrietas & incendit & detegit. 1 Inst. 247. a.

Offences Capital and Civil.

IN many cases the Law will not pu­nish Capital offences in so high a degree, except the Malice of the Will appears, and this in favorem vitae; but in Civil trespas­ses and wrongs of a lower nature, the Law rather regards the damage of the Person injured, than the Malice of the wrong-do­er: And therefore the Law makes a diffe­rence between killing one upon Malice prepensed, and upon present Heat; but if I give a Man slanderous Language, and thereby damnify hi in his Name and Credit, it is not material whether I use them upon sudden Choler and Provocati­on, or of set Malice, for in an Action up­on the Case, I shall render Damages alike.

So if a Man be killed by Misadventure, as by an Arrow at Butts, it is pardoned of course; but if a Man be hurt or maimed [Page 97] only, an Action of Trespass lies, tho' it is done against the Parties Will, who shall be punished in the Law as deeply as if it had been done malitiously. Hob. 134. the Case of Weaver and Ward.

So if Baron and Feme commit a Fe­lony together, she is neither principal nor accessory, in respect of her obedience to her Husband's Will; but if they joyn in com­mitting a Trespass upon Land or, &c. the Action may be brought against them both.

(See Dalton 104. that if Husband and Wife do both a Felony, it is Felony in both, and both arraigned for it: But Hales in his Pla. Coron. says, Nota, that Books old and latter, and practice is otherwise. fol. 65.)

If an Infant within years of Discre­tion, or a Mad-man kill another, he shall not be impeached for it; but if they put out a Man's Eye, or do him any corporal hurt, he shall be punished in Trespass. Hob. 134 and Bac. Elem. 32.

One born Deaf and Dumb, kills another.

IF one that is Dumb killeth a Man, it it is Felony; yet Quaere, how he shall be arraigned. Dalton cap. 147. pag. 351.

A Man born Deaf and Dumb kills ano­ther, that is no Felony, for he can't know whether he did evil or no; neither can [Page 98] he have a felonious intent: Otherwise if not born so. ib. See Bro. Coron. 101. and 217. that a Man which can neither hear nor speak may commit Felony, and shall be imprisoned, &c.

A Release of a right to one that hath neither Freehold in Deed, or in Law, yet good.

THE Demandant may release to the Vouchee, and yet the Vouchee hath no­thing in the Land; but the reason is, be­cause when the Vouchee entreth into the Warranty, he becomes Tenant to the De­mandant, and may render the Land to him in respect of the Privity. 1 Inst. 265. b.

If the Tenant alien hanging the Prae­cipe, the Release of the Demandant to the Tenant to the Praecipe is good, and yet he hath nothing in the Land. ibid.

If a Disseisor lets the Land for Life, the Disseisee may release all his right to the Disseisor in reversion, tho' he has nothing in the Freehold, because he hath an Estate in him, viz. the Reversion. Lit. Sect. 449.

Curtesie of England.

IF a Woman seised of Lands in Fee takes Husband, and by him is big with Child, and in her Travail dies, and the Child is ripped out of her Body alive, yet shall not the Husband be Tenant by the Curtesie, because the Child was not born during the Marriage, nor in the life time of the Wife; but in the mean time the Land descended, and in pleading he must alledge that he had Issue during the Mar­riage. 1 Inst. 29. b. Co. 8. 35. a. b. in Pain's Case.

A Secret of Law.

LITTLETON says, In every Case where a Man takes a Wife seised of such an Estate of Tenements, &c. as his Issue by her may by possibility inherit, As Heir to the Wife, in such case after her Death he shall have 'em by the Curtesie of Eng­land, and otherwise not.

In the Words [As Heir to the Wife] my Lord Coke has discovered a Secret of Law, for except the Wife be actually seised, the Heir shall not make himself Heir to the Wife, which is the reason that a Man shall not be Tenant by the Curtesie of a [Page 100] Seisin in Law. 1 Inst. 40. a. Co. 8. 34. in Paine's Case.

Another reason is, because it lies always in his Power to reduce the Seisin in Law by his entry to an a actual Seisin, and so it shall be accounted his own laches; for it is otherwise in case of Rents and Advowsons, where if the Wife die before the Rent be­came due, or the Church void, yet the Husband shall hold by Curtesie, because he could by no Industry attain to any o­ther Seisin; which is likewise the reason why a Woman shall be endowed of a Sei­sin in Law of Lands, because it lies not in her power to reduce it to an actual Sei­sin.

Corporalis injuria non recipit aestimationem de futuro.

THE Law in many Cases that concern Lands or Goods deprives a Man of his present remedy, and turns him over to a farther circuit of remedy, rather than to suffer an Inconvenience; but if it be a question of personal Pain, the Law will not compel him to sustain it, and expect remedy, because it holdeth no damage (that may be given) a sufficient recom­pence for a Corporal wrong.

[Page 101]Therefore if one menace me in my Goods, and that he will burn certain E­vidences of my Land, which he has in his Hand, if I will not make unto him a Bond; yet if I enter into Bond by this Terror, I cannot avoid it by Plea, because the Law holds it an Inconvenience to a­void a specialty by such matter of Averment, and therefore I am put to my Action against such Menacer; but if he restrain my Per­son, or threaten to beat me, or burn my House, which is a safety and protection to my Person, and upon such menace or du­ress I make a Deed, I shall avoid it by Plea.

So if a Trespasser drive my Cattle over the ground of I. S. and I pursue to rescue them, yet am I a Trespasser to I. S. but if one assault my Person, and I fly over anothers Ground, I am no Trespasser.

So if the Sheriff make a false return that I am summoned, whereby I lose my Land, yet because of the inconvenience of drawing all things to incertainty and de­lay, if the Sheriff's return should not be credited, I am excluded of my Averment against it, and am put to my Action of Deceit against the Sheriff and Summoners. But if the Sheriff upon a Capias return a Cepi Corpus, & quod est lauguidus in prisona, there I may come in and falsifie the return [Page 102] to save my Imprisonment. 5 Edw. IV. 80. 3 H. VI. 3. Bac. Elem. 29, 30. 1. Roll 92.

Felony, and Chancemedley.

PLAYING at Hand-Sword, Bucklers, Foot Ball, Wrestling, and the like, whereby one of them receives hurt, and dies there­of within a Year and a Day: In these Cases some hold, that this is Felony of Death; others, that they shall have their Pardon of course, as for Misadventure, for that such their Play was by consent, and because there was no former Malice, but done only for disport, and trial of Man­hood. Dalt. 352. See tit. Justs and Chance­medley in hoc Libro.

Justification in case of Necessity.

THE Ferry-Man of Gravesend took For­ty seven Passengers into his Barge to go to London, amongst whom was one Mouse; the Barge being upon the Water, a great Tempest arose, insomuch that the Barge, and all the Passengers were in danger to be drowned, if a Hogshead of Wine, and other ponderous things were not cast out; among which things there was a Casket with 113 l. of Mouse's, which I. S. took and threw over-board; whereupon Mouse [Page 103] brought Trespass, &c. It was resolved per Curiam, that in case of necessity for saving the Passengers lives, it was lawful for I. S. being a Passenger, to cast the Plaintiff's Casket out of the Barge, with what was in it, [Quod quis obtutelam corporis sui fecerit, jure id fecisse videtur.] and 'twas directly proved that the Men had been drowned if the things had not been heaved out: But 'twas agreed also that the Owners in such Case shall have their Remedy upon the surcharge against the Ferry-Man; and if there is no surcharge but the danger comes by the Act of God, then every one must bear his own Loss. 12 Rep. 63. and 2 Roll. 567.

One may justifie the felling of a Tree in the Ground of another in Case of necessi­ty. 6 E. 4. 8.

See 22 Assise 5, 6. that a Man may justi­fie the beating another, if he be in a Rage.

So Estrays may be fettered, if they are fierce and unruly. Hut. Rep. 67. and Winch 67, 124.

If a Man has a way over my Land for his Cattle to pass, and they in passing eat the Grass against his Will, this is justifiable. 2 Roll. 566, 567. Reeve and Downs.

Note this for a Rule, That in all Tres­passes there must be a voluntary Act, and also a damage; otherwise an Action of Trespass lies not.

[Page 104]In Trespass for Ploughing his Land, the Defendant said, the Plaintiff's Land is ad­joyning to his and that when he was Plough­ing his own Land, the Horses were unru­ly, and by violence carried the Plough in­to the Land of the Plaintiff, contra volunta­tem suam, and held a good Justification; for if a Man be doing a lawful Act, which afterwards becomes illegal, against his Will, that is damnum sine injuria. 22 E. 4. 8.

One cannot justifie a Trespass upon another for fear.

IN Trespass for breaking of a House and Close, the Defendant pleaded, that Duode­cem homines ignoti modo querrino armati tan­tum minabantur ei, quod de vitae suae amissione dubitabat, and after requirabant & compulsa­bant the Defendant to go with 'em to the House, quodque ob timorem minarum, & per mandatum & compulsionem dictorum duodecem hominum, he did enter the said Close and House, and returned immediately through the said Close, which is the same Trespass, &c. Adj. no Plea upon demurrer, for one cannot justifie a Trespass upon a­nother for fear, and the Defendant has re­medy against those that compelled him; the pleading too was naught, because he did not shew that the way to the House [Page 105] was through the Close. Allen 35. Gilbert and Stone. vide the same Case Stiles 72. with this further reason, that the Person injured shall have no satisfaction (if such Plea be allowed) for he cannot have it of those that threatened. But see Stiles 65. in Trespass pedibus ambulando; the Defen­dant pleads, he was carried upon the Land by force and violence of others, and was not there voluntarily, which is the same Trespass, &c. upon Demurrer. Roll. Justice said, it is the Trespass of the Party that carried the Defendant upon the Land, and not the Defendant's Trespass; as he that drives my Cattel into anothers Land is the Trespassor, and not I who am the owner of the Cattle.

Presumption of Law.

IN many Cases the Law will admit no proof against what it presumes: Therefore, If a Rent be behind for 20. Years, and the Lord make an Acquittance for the last that is due; all the rest are presumed to be paid, against which presumption the Law will ad­mit no proof. Dyer. 271. a. 11 H. IV. 55.

So if a Man be within the Four Seas, and his Wife hath a Child, the Law presumes it is the Child of the Husband, and will admit no proof to the contrary. 7 H. IV. [Page 106] 9. 1 Inst. 373. a. unless the Husband be ca­strated. 1 Roll. 358.

An innocent person is accused of Felo­ny, and being afraid, flies for it; tho' he after judicially acquit himself thereof, yet if it be found that he fled for the same, he shall forfeit (notwithstanding his inno­cency) all his Goods and Chattels, Debts and Duties; for as to the forfeiture of these, the Law will allow no Proof a­gainst the presumption in Law, grounded upon his flight. 1 Inst. 373. a. b.

So if the Uncle of the Issue releases with Warranty to the Discontinuee of Te­nant in tail, and dies without Issue; this is a collateral Warranty to the Issue in tail, barring him without any Assets, or Estate descended from him that made the War­ranty, the Law presuming that the Uncle would not unnaturally disinherit his Law­ful Heir, being of his own Blood, of that right which himself never had, without lea­ving him greater Advancements. 1 Inst. 373. a.

Forfeiture.

TWO Joynt-Tenants for Life, the one grants his Estate for the Life of his Com­panion; it was held a Forfeiture, for first, it is a severance of the Joynture, and then a Lease for another's Life. 4 Leon. 236.

Remainder for the Life of Tenant for Life, good.

IF a Remainder be limited to one for term of the Life of Tenant for Life, the Remainder is good, but for this reason on­ly, because that by possibility the Tenant for Life may alien in Fee, and so forfeit his Estate, whereby the Remainder shall enter for the Forfeiture, and enjoy the E­state during the Life of the Tenant for Life, who committed such forfeiture. Co. 2. 50, 51.

The King of Spain Out-lawed in Westminster-Hall.

THE King of Spain was Out-lawed in Westminster-Hall, I being of Councel a­gainst him, (says Selden) the Case was this; A Merchant had recovered Costs a­gainst him in a Suit, which because he could not get, we advised to have him Out-lawed for not appearing, and so he was: As soon as Gondimer heard it, he presently sent the Money, by reason that if his Master had been Out-lawed, he could not have the benefit of the Law, which would have been very prejudicial to him, there being then many Suits de­pending betwixt the King of Spain, and our English Merchants.

[Page 108] Vide Stiles Pract. Reg. 382. that Mich. 22. Car. B. R. the King of Spain was Non-Suit in England; for if a foreign Prince will have benefit of the National Laws here, he must proceed and abide by the Rules and Orders of the Court wherein he pre­fers his Action.

Where one shall be a Bastard tho' born in Mar­riage.

IF the Husband be Castrated, so as it is apparent that he cannot by any possi­bility get a Child, and his Wife has Issue several years after, it shall be a Bastard, tho' engendred in Marriage, for that it is a plain case it cannot be legitimate: But Hobart contrà. 1 Roll. 358. Initio.

If the Wife of an Infant of the Age of Nine Years has a Child, it is a Bastard. 29. Ass. 54. quaere. 1 Roll. 359.

If a Man marry a Woman big with Child by another, who is delivered within three days after, the Child is a Bastard by the Law Spiritual, (but by our Law legiti­mate.) 18. E. 4. 30. 1 H. VI. 3.

If a Feme Covert has Issue by Adultery, yet if the Husband be able to get it, and is within the Four Seas, it is not a Ba­stard. 1 Roll. 358. Hill. 14. Jac. But see 40 E. 3. 16. that if a Woman covert conti­nues [Page 109] in Avowtrie, and has Issue, it is a Bastard.

Copy of Inscription, Evidence.

MEMORANDUM at a Tryal at the Bar between Baxter and Foster, concerning the Title of Land, a Copy of an Inscrip­tion upon a great Stone in London was ad­mitted in evidence to prove a pedigree. Mich. 1656. Banco super. Sti. Pract. Reg. 177.

Jury throw up Cross and Pile.

THE Court set aside a Verdict in Nor­thumberland on Affidavit, that the Jury be­ing divided in opinion, threw Cross and Pile, and ordered them to appear the next Term to an Information; this being pu­nishable by Wild, and as was said, broke Sir James Altham's Heart, who was one of the Jury in the Lord Fitzwater's Case. 3 Keble 805. Foy and Harder.

Church-Book, and Shop-Book, where Evidence.

A CHURCH- Book being entred, and made parcel of the Record, was given in Evidence, and good; but not otherwise to be given in Evidence. 1 Brownl. 207. 1 Cro. 411.

[Page 110]A Tradesman's Shop Book may not be given in Evidence for Wares sold, or Work done, a Year after the selling, &c. 7 Jac. c. 12. unless they have a Bond or Bill for the Debt, or brought Action within the Year.

Barrister expelled the House for not paying his Commons.

MR. Boreman, a Barrister of one of the Temples, was expelled the House, and his Chamber seised for non-payment of his Commons, whereupon he prayed to be re­stored, bringing his Writ of Restitution into Court, ready framed, which was di­rected to the Benchers of the said Society; but 'twas denied by the Court, because there is none in the Inns of Court to whom the Writ can be directed, because it is no Body Corporate, but only a voluntary So­ciety, and submission to Government; and they were angry with him for it, that he had waved the ancient and usual way of Redress for any grievance in the Inns of Court, which is, by appealing to the Jud­ges, and would have him do it now. 17 Car. in B. R. March r [...]p. 177. cited also in Stiles 42.

Masters in Chancery.

MASTERS in Chancery in ancient time were Clerks of the Court, and called The first Form, and their Office was, and now is, to sign Original Writs, and of late time they have obtained a Commission to make them Judges: They are part of the Latin Court in Chancery, and were formerly Priests, and from thence they are called Masters; the Lord Chancellor had the Be­nefices under Twenty Marks, to the intent to prefer these Masters to 'em, and they could not marry 'till they were enabled by Stat. 14. H. VIII. cap. 8. They used anciently to frame the Writs, and are this day offend­ed with the Cursitors for their Office. Latch. 39, and 133.

Husband and Wife in Affection resolve to die together, she buys Poison, both take it, the Husband dies.

A MAN and his Wife had lived a long time together, and the Man having at length spent his Substance, and living in great Necessity, said to his Wife, That he was now weary of his Life, and that he would kill himself; the Wife said, that then she would also die with him, where­upon [Page 112] he prayed her that she would go and buy some Ratsbane, and they would drink it together; which she accordingly did, and she put it into Drink, and they both drank of it; the Husband died, but the Woman took Salad Oyl, which made her vomit, and she recovered: Quaere, if Murder in the Wife. Moor 754.

Prerogative.

PRAEROGATIVA is derived of praé i. e. ante, and rogare, to ask or demand be­fore-hand, being denominated of the most excellent part; because, tho' an Act hath passed both Houses in Parliament, yet be­fore it be a Law, the Royal Assent must be asked or demanded and obtained; this is the proper sense of the Word, but le­gally it extends to all Powers, Prehemi­nences, and Priviledges which the Law gives to the Crown. Fortescue 45. Stanf. Praer. 5. 10. 1 Inst. 90 b.

According to this latter sense then, the King's Prerogative is not his Will, or (what Divines make it) a Power to do what he lists: The King's Prerogative, that is, The King's Laws: For Example, if you ask whether a Patron may present to a Living after six Months by Law? 'Tis answered, No▪ If you ask whether the King may, [Page 113] 'tis answered, he may by his Prerogative, i. e. by the Law that concerns him in that Case. Selden.

Husband and Wife divorced causâ Frigiditatis, or impotency in the Husband, he marries a­gain and has Issue, it is legitimate.

IN Ejectment between Whebster and Bu­rie, a sp;ecial Verdict was given upon Di­vorce between Burie and his Wife Causâ Frigiditatis, and that his Wife for Three Years after marriage, remansit Virgo intacta, propter perpetuam impotentiam generationis in Viro, & quod Vir fuit ineptua ad generandum: And in this special Verdict the whole ex­amination of the Witnesses, upon which the Judge in the Spiritual Court gave Sen­tence, whereby the perpetual dissability of Bury ad generandum was manifest, was read, by which it was pretended, that the Issue which he had by a Second Wife, was il­legitimate, and this was the doubt of the Jury: But 'twas adjudged that his Issue by the Second Wife was lawful; for 'tis clear that by the Divorce causâ frigiditatis, the Marriage is dissolved à vinculo, and either might marry again, then admitting the Se­cond marriage voidable, yet it is good until dissolved, and by consequence the Issue law­ful (if no Divorce be in the life of the [Page 114] Parties) Et homo potest esse habilis & in habi­lis diversis temporibus. Co. 5. 98. Burie's Case.

One refuses to be sworn after the usual manner.

DOCTOR Owen, Vice-Chancellor of Oxford, being a Witness in a Cause for the Plaintiff, refused to be sworn accord­ing to the usual manner, by laying his Right Hand upon the Book, and kissing it after; but he caused the Book to be held open before him, and he held up his Right Hand, and so was sworn: Whereupon the Jury prayed the discretion of the Court, if they ought to esteem his testimony as strong as that of another Witness? Glyn. Ch. J. answered, that in his opinion the Dr. had taken as strong an Oath as any of the other Witnesses; but that for his own part, if himself were to be sworn, he would, according to the accustomed way, lay his Right hand upon the Book: The same Answer which he gave before to another Jury. 2 Siderf. 6.

Jews sworn upon the old Testament only.

ON Evidence to a Jury, the Witnesses produced were Jews, and sworn upon the Old Testament only: Per Cur. a good Oath by 5 Eliz. c. 9. to make Perjury: And [Page 115] within the general Words of S. Evangelia; so of the Common Prayer-Book that hath the Epistles and Gospels, Contra by Windham of a Psalm-Book only. 2 Keb. 314.

Murder of a Child in the Womb.

ONE beats a Woman great with Child, and after the Child is born alive, with Signs and Bruises in his Body of the said battery, and after dies thereof: Fenner and Popham held it to be Murder; for the diffe­rence is, where the Child is born Dead, and where Alive; in the first Case it is not Murder, because Non constat whether the Child were living at the time of the Battery, or not, or if the beating were the cause of it's Death; but when it is born Alive, and the Wounds appear in his Body, and then dies, the Batteror shall be arraigned of Murder, for now it may be proved whether these Wounds were the cause of the Death, or not; and there­fore if it be found, he shall be condemned. Goldsb. Rep. 176.

If a Woman quick with Child take a Po­tion to kill it, and accordingly it is destroy­ed without being born alive; this is a great Misprision, but no Felony; but if born a­live, and after dies of that Potion, it is Murder. Dalt. c. 93. Hales tit. Felonies.

Nemo tenetur prodere seipsum.

A MAN was sued for Incontinency in the Spiritual Court, and the Judges there would have him answer upon his Oath if he ever had Carnal Knowledge of such a Woman, upon which he prayed a Prohi­bition, and 'twas granted, for no one is obliged to betray himself in such cases of Defamation, but only in causes Testamen­tary and Matrimonial, where no discredit can be to the Party by his Oath. Cro. Eliz. 201. Moor 906. 4 Leon. 194. Cullier's Case.

Dr. Hunt was indicted, that being Com­missary to the Arch-Deacon of Norwich, he caused I. S. to be Summoned before him, to compel him to take an Oath concern­ing Incontinency, which touched himself: It being referred to the Chief Justices, and Chief Baron, they certified, That where the Knowledge of the matter did belong to the Court Christian, they may pro­ceed according to the Civil Law: Note, the King's Bench was of opinion in this case, that the Oath cannot be ministred to the Party, but where the Offence is first presented by Two Men. Cro. Eliz. 262.

If a Woman be Sued in the Eccl siastical Court upon a Contract of Marriage, and [Page 117] enters into Bond to the Court with con­dition not to Marry or live in Fornicati­on with any one pendente lite, she cannot afterwards be examined there upon her Oath, whether she be a single Woman, for that tends to the Forfeiture of the Obligation. 2 Roll. 305. Clifford and Hunt­ley.

Bastardy.

IF Husband and Wife continue Man and Wife their whole Lives, their Issue cannot be Bastarded by a Divorce after their Death, for the Divorce in the Spi­ritual Court est pro peccatis, which cannot be after they are Dead, and therefore such Divorce there is only to disinherit the Issue, which they cannot do, 39 E. 3. 31. b. 32. for by such means any one may be disinherited. 31 Ass. Pl. 10.

Bastardy.

IF the Wife of an Infant under Four­teen Years has Issue, it is a Bastard. Noy's Rep. 142. 1 Roll. 359. 1 H. VI. 3. b.

If a Wife elope, and live in Adulte­ry with another, and has Issue, yet by our Law the Child is legitimate, agreed per Cur. in Edgerton's Case, 1 Roll. 358. but [Page 118] the Husband must be within the Four Seas, so as by Intendment he may come to her; otherwise such Issue is a Bastard. But vi­de 40 E. 16. 3 b. contra.

If a Feme Covert goes into another County, and takes Husband, and has Is­sue by him, the first Husband being within the Seas, the Issue is legitimate. 7 H. IV. 9. b.

A Married Man takes another Woman to Wife, his Issue by her is Bastard by Common and Civil Law, for the second Marriage is void. Co. 7. 44.

If there be an unlawful Marriage, as between Brother and Sister, and they have Issue, and one of 'em dies before a­ny Divorce had between them, the Issue cannot now be Bastarded. (see Co. 7. 42. Kenn's Case) 1 Brownl. 42. and 2. Roll. 357.

Upon a Motion to stay an Informati­on brought against the Prosecutors of one Brown for a Bastard, Justice Twisden said, that the Stat. 18 Eliz. cap. 3. shall be taken by equity, and that although Bastards are intended Children Born, yet the Justices may take security of such as are Big, or of reputed Fathers during that time, lest they be gone before the Child is born, Curia accord' sed adjornatur. Lamb. I. P. 119. 3 Keb. 708.

[Page 119]If a Man has Issue by a Woman, and after Marries her, by our Law the Child is a Bastard; yet note, such issue shall be called their Child in Law, for a Remain­der limited to it by that name is good. Co. 6. 65.

If a Man Marry his Cousin within the degrees, the Issue between them is not Ba­stard, until Divorce had, for the Marriage is not void; as it is where a Husband takes a second Wife, living the first, and has Issue by her, it is a Bastard, because the second Marriage is void.

An Ideot à nativitate may consent to Marry, and his Issue shall be legitimate. Stile and West. 1 Roll. 357. Fine.

Lease confirmed before it is made, yet good.

A BISHOP made a Lease for Years the second day of May, and the Dean and Chapter confirmed it the first of May; Cat­lyne and Southcote held it a good Lease af­ter the Bishop's Death: Wray demanded, How a Lease could be confirmed before it was made; the others answered, That the Assent before is a good Confirmation after, Owen 33.

Vide 2 Roll. 26. Number 30. that if a Par­son grant an Annuity, and the Patron seals and delivers a Deed of Confirmation be­fore [Page 120] the Grant, and after the Grant deli­vers the Deed again, this second Delivery is void, for altho' by the first Delivery it took not effect as a Confirmation, but was void in operation (quod nota) yet it was his Deed, for he could not plead Non est factum. See 8 H. VI. 6. b. and 39 H. 6. 37. b. con­tra.

Where the Lord shall have the Land against his own Confirmation.

LORD and Tenant of a Carve of Land, the Tenant has Issue, and is attaint­ed of Felony, and the King pardons him, and after the Lord confirms his Estate, and the Tenant dies, here the Lord shall have the Land against his own confirma­tion, for 'tis ruled in Beaumont's Case, Co. 9. 141 b. that a confirmation cannot add a discendible quality to him that is dis­abled to take by descent. But vide Cro. Car. 478. by Jones and Croke, a Deed shall ne­ver be void when by any Intendment it may be allowed good, and to have any ope­ration, and that altho' in Beaumont's Case the Heir in tail was barred by the fine of his Ancestor, yet they hold he was restored to the Estate tail by the Confirmation of him in the Reversion; for as the Fine was an Estoppel to the Heir to claim against [Page 121] the Fine, so the Indenture of Confirmati­on is an Estoppel to him in Reversion to say that the Heir shall not hold it in tail, and there it is an Estoppel against an E­stoppel, which sets the matter at large. See Jones 394.

Fine levied by a Woman born Deaf and Dumb.

ONE Martha Eliot that was born Deaf and Dumb came before Chief Justice Bridg­man to levy a Fine; she and her three Si­sters had a House and Land, and an Un­cle had maintained her, and was to buy the House and Land of them, and agreed to maintain this Woman, if she would pass, her Land for Security: As to her in­telligence, the Sisters said, she knew and understood the meaning of all this; the Chief Justice demanded what sign she would make for passing away her Lands, and as 'twas interpreted to him, she put her Hands that way (spreading them out) where the Lands lay. This mat­ter being communicated by the Chief Ju­slice to his Brethren, Judge Archer (with whom Tyrrel and Brown agreed) said, that the rule in Law is, that in Fines and Feoff­ments, &c. if there be a good intelligence, they may well do such Acts, they may be admitted to make contracts for their good: [Page 122] They are allowed upon examination to Marry, and to receive the Sacrament, they may make contracts for their Persons, and by the same reason for their Lands; and so his Lordship took the Fine. Cartor's Rep. 53, 54.

Vide Perkins, Sect. 25. that one born Deaf and Dumb may make a gift, if he have Understanding, but that 'tis hard such a Person should have Understanding, for that perfect intelligence comes by hearing. And see 1 Inst. 8. a. that one born Deaf and Dumb may be Heir to another (tho' it was otherwise held in ancient time) and so if born Deaf, Dumb, and Blind, for in hoc casu vitio parcitur naturali; but note, it is there said that such persons cannot contract.

Alien suffers a Common recovery.

LAND was given to an Alien in tail, the Remainder to I. S. in Fee; the Alien suffered a Common Recovery, and died without Issue, all which being found by Office, the Court resolved the Recovery was good, and should bind the Remain­der-Man. 4 Leon. 84.

Note, it has been adjudged, where an Alien and I. S. were Joint-Purchasers, and the Alien died, that I. S. should not have the whole by Survivor, but that the King should have the Moiety upon Office found.

The Wife of I. D. levies a Fine with I. S. as his Wife, and I. D. can't prevent it.

I. S. and the Wife of I. D. levied a Fine of her Lands, by the name of I. S. and Jane his Wife, I. D. came into Court, and shewed this matter, and prayed to stay the Fine, but the Court would not stay it, for the Court shall not determine loyalty of Matrimony; and if it be true that she is not the Wife of I. S. it shall not hurt the rightful Husband. 2 Roll. 19. Keblethwaite and Wade.

Wife prays the Peace against her Husband.

ON a difference between the Lord Leigh and his Lady about Pin-Money, viz. the settlement of 200 l. per annum in case of Separation; she upon Affidavit of hard U­sage, and that she went in fear of her Life, prayed security of the Peace against him, and 'twas granted: Note, Hale Chief Ju­stice said here, the Salvâ Moderatâ castigati­one in the Register is not meant of Beat­ing, but only of Admonition and Confine­ment to the House in case of her Extrava­gance, Curia acc' she being not as an Apprentice, &c. but they were reconciled afterwards. 3 Keb. 433.

[Page 124]See 1 Keb. 637. Bradley's Case. The Court refused to bind him to the Peace at his Wife's Suit, unless her Life were in danger, because by the Law he has pow­er of Castigation; and the Bishop of London had certified that he used to beat her, but that she used to provoke him.

Fine Sur Grant & Lender, Executory.

A MAN by Fine acknowledges all his right in certain Land to me, and I render it back again to him in Fee, where nei­ther of us hath any thing in the Land, and after I purchase the Land, this Fine shall bind me, for it was executory upon me. 2 Roll. 20.

Witness excused from swearing the whole Truth.

IN a Cause between Sparke and Sir Hugh Middleton, Mr. Aylet having been Coun­sel for the Defendant, desired he might not be sworn on the general Oath, as Wit­ness for the Plaintiff, to give the whole Truth in evidence, which the Court grant­ed after some dispute; and that he should only reveal such matters as he either knew before he was of Counsel, or that came to his knowledge after from others; and the particulars to which he was sworn [Page 125] were particularly proposed, viz. what he knew concerning a Will in question that P. G. made; and the Court only put the question, Whether he knew of his own Knowledge? 1 Keble 505.

See Stiles 449. Waldron and Ward, That a Counsellor is not bound to make an­swer to matters which may disclose the secrets of his Client's cause, by Roll. Chief Justice; and so he was forborn to be ex­amined.

Vide March 83. pl. 136. that a Lawyer of Counsel may be examined upon Oath as a Witness to the matter of Agreement, not to the validity of an Assurance, or to the matter of Counsel.

Extinguishment.

IF a Man Lessee for Years take the Feme Lessor to Wife, his Term is drown­ed, for a Man cannot have a Term for Years in his own right, and a Free-hold in auter droit to consist together. 1 Inst. 338. b.

Baron Lessee for Years, and the Inheri­tance descends to his Feme, Resolved per Cur. praeter Williams, That here the Term is not extinct. 2 Cro. 275. So note a dif­ference where the Feme has the Reversion before Marriage, and where the Fee de­scends [Page 126] to her after Marriage. Jenkins cent. fo. 73. the first is the Act of the Husband, the other the Act of the Law, which shall not prejudice him.

If a Man Lessor Marry the Feme Les­see, the term is not drowned, but he is pos­sest of it in her right during the Cover­ture: So if the Lessee make the Lessor his Executor, the term remains; for a Man may well have a Free-hold in his own right, and a Term in auter droit. Pl. Com. 418. 1 Inst. 338. b.

Feme Lessee for Years takes Husband, he purchases the Fee, the term there is extinct by the Act of the Husband which destroys it, viz. the purchase, but where he had the Reversion before, her Term shall continue, for the Act of the Law shall not prejudice. 4 Leon. 212.

An Executor hath a Term, and purcha­ses the Fee, the Term is determined, by Dyer. 4 Leon. 212.

Counseller and Client.

IF a Counseller say to his Client, that such a Contract is Simony, and the Cli­ent makes answer, That Simony or not Simony he will do it, and thereupon the Counsellor maketh this Simonaical Con­tract, [Page 127] it is no offence in him, by Reeve Justice. March 83. pl. 136.

Carrier robbed, allowed a Witness to prove the Robbery.

IT was said by Chief Justice Glyn, that a Carrier who is robbed, may be exami­ned as a Witness at a Tryal thereupon, to prove the Robbery, and what he was robbed of, otherwise the truth can't be known: But this is the only Case, he said, where one may be admitted to give his testimony as a Witness in a matter which concerns himself. Stiles Pr. Reg. 571. War­ren, and the Hundred of Broadwater.

Examination of a Witness.

IN examining a Witness, Counsel can­not question all the Life of the Witness, as whether he be a Whoremaster, &c. but if he hath done any notorious fact, which gives just exception against him, this may be taken, and he may be excepted against. March 83. pl. 136.

What Sergeants Rings ought to weigh.

SEVENTEEN Sergeants being made the Fourth of November, 21 Car. II. Ser­jeant Powis coming (a day or two after) to the King's Bench Bar, Chief Justice Keeling told him, he had somewhat to say to him, viz. that the Rings which he and the rest of his Brethren had given, weigh­ed but 18 s. apiece, whereas Fortescue says in his Book de laudibus Legum Angliae, that the Rings given to the Chief Justices, and Chief Baron ought to weigh 20 s. a piece; and that he spake this not expecting a Cecompence, but that it might not be drawn into a President, and that the young Gentlemen there might take no­tice of it. See the Mod. Rep. 9.

Legatee allowed as a Witness to prove the Will.

ONE that has but a small Legacy gi­ven him by a Will, may be allowed as a Witness to prove that Will, for the Law will not intend that any one will forswear himself for a small matter. Stiles Pr. Reg. 568. but see Stiles Rep. 370. initio.

A Man brings Debt against his own Execu­tors.

VIDE 1 Inst. 133. b. that in some Case a Man might have had an Action of Debt a­gainst his own Executors; as if A. had been bound to the Abbot of Dale in an Obliga­tion, and afterward A. had been profes­sed a Monk in the same Abby, and after were made Abbot thereof, he should now have had an Action of Debt upon his own Bond against his own Executors.

Note, when a Man entred into Religi­on, he might make his Will and his Execu­tors, and they should have had an Action for a Debt due to him before his entry into Religion, or any other Action that Executors may have, as if he had been dead indeed, pari ratione they might be also sued, and in the Case supra, the Bond being made to an Abbot by one who after became dead in Law, by entring into Religion, where­by his Executors became chargeable, &c. when he himself was afterwards restored to legal Life by being made Abbot, the Debt being unsatisfied, himself was then the only Person capable of suing for it.

Where a Feme Covert shall have both an Exe­cutor and Administrator.

THE Wife of I. S. having Debts due to herself, and being also Executrix to I. D. makes (without her Husband's assent) I. N. her Executor, and dies: Here as touch­ing the Goods, and Credits, or Things in Action, pertaining to her as Executrix of I. D. this Will stands good, and I. N. may prove it, contrary to her Husband's Will: But as to the Credits to her self in her own right pertaining, the Will is void, and there­of her Husband may take Administration: So Note, she shall die both Testate, and Intestate; with a Will, and without a Will; shall have both an Executor, and Admi­nistrator. Office of an Executor, 281.

Pleasant Custome.

BY a Custome which they have in the Town of Southampton, if a Bastard Child be found within the Town, and the Fa­ther of it cannot be discovered, he that comes next into the Town, after the Child was found, must keep the Child. Mich. 24. Car. B. R. Stiles Practical Register 105. It may be (says Stiles) they of the Town did time out of mind agree amongst them­selves [Page 131] that it should be so, and therefore it shant be adjudged an unreasonable Cu­stome, tho' it seems a strange one.

Custome to hang for Stealing a Capon, not for Stealing an Ox.

THERE are several Customes which are good ratione loci, that are not allowed throughout England; as there is a Custome in the Isle of Man, that a Man shall be hanged for stealing a Capon, yet he shall not be hanged for stealing an Ox. 12 H. VIII. 5. 1 Siderf, 267.

Custome in Cheshire.

THERE is a Custome in Cheshire, that if a Debtor come before the Chamberlain of Chester, and there takes his Oath that he is not able to pay the Debt, but that he will pay it as soon as he can, that he shall have a Protection. See 1 Roll. 566, 567.

Note, Whereas by the Custome of Lon­don, an Action upon the Case lies for cal­ling a Woman Whore; and so likewise in the Court of the Borough of Southwark, (where they alledge a Custome specially for Whipping and Carting of Whores) it lieth likewise for a Lodger, for she [Page 132] comes within the Customs, which reach to all the Inhabitants.

One loses at Play more then 100 l. to several Persons.

DEBT upon Bond, the Defendant pleads the Stat. 16 Car. II. cap. 7. against Gaming that he lost at [Most at Three Throws] 90 l. to the Plaintiff, and at the same time 30 l. to A. at Cards, and 60 l. more to B. at Bett: The Plaintiff demurred, because it does not ap­pear that these were Parties together, or in trust one for the other; and in Danver's Case the Act was held to extend only to the security for more than 100 l. much less shall it extend to different Gamesters. But the Court agreed, it was not material to whom the Party became indebted; for the Statute is, That you shall not lose more than 100 l. at one time or meeting upon Ticket; and Judgment was given for the Defendant, the Statute being to be extended against Play. 3 Keb. 671. Hud­son and Malim.

Danvers his Case was thus, (1 Siderf. 394.)

Bond was given for 100 l. lost at Play, there being lost at the same time a Ring of 20 l. value, which was paid, and ad­judged the Bond was not void within the Statute, the design whereof was to avoid [Page 133] Securities, but did not regard ready Money, as not presuming that Persons would carry their Estates in their Pockets: Therefore Keeling said, If one lose 1000 l. in ready Money and also give Bond for 100 l. it is not within the Statute.

Two Joynt-Tenants hanged in one Cart, the Survivor's Wife demands Dower.

IN a Writ of Dower, the Title of the Feme to recover Dower was this: Father and Son were Joint-Tenants to them and the Heirs of the Son, they committed Fe­lony, and were both hanged in one Cart, but because the Son (as it was deposed by Witnesses) did survive, as appeared by some Tokens, viz. his shaking his Legs; his Wife thereupon demanded Dower, and upon issue nunques seisie que Dower, it was found for her. Cro. Eliz. 503.

For the better understanding of which Case, I shall give you the following Opi­nion: If there be two Joint-Tenants in Fee, and one of 'em is attainted of Felo­ny, and then the other dies in the Life of him that was attainted, his part shall sur­vive to him that was attainted, by Brampston, in the Case of Harris and Wardell, 2 Roll. 88. and he held that the Lord of whom the Lands are holden should not have this [Page 134] part by Attainder if he were afterwards pardoned: But Berkley conceived that he should forfeit by his Attainder all the Land which comes to him during his Attain­der, and so the Lord should have this Moie­ty also.

A. and B. Joint-Tenants, A. is attainted and hanged, yet there is no severance of the Jointure, but the Land shall survive to B. untill the Lord enter for the forfei­ture. Harris and Wardell's Case. 2 Roll. 88.

Plea in Bar of Dower.

A WOMAN brought a Writ of Dower in Kent, and demanded the third part of certain Lands, whereof her Husband was seised; the Tenant pleaded in Barr, That the Lands were of the nature of Gavel­kind, whereof by Custome she is to have a Moiety for her Dower, and adjudged a good Plea in Barr, quod nota, Savil's Rep. 91.

Where a Right of Free-hold shall drown in a Chattel.

IF a Disseisor make a Lease for Years, the Disseisee cannot release to him, be­cause he hath no Estate of Free-hold: And yet in some case a right of Free-hold [Page 135] shall drown in a Chattel, as if a Feme hath a right of Dower, she may release to the Guardian in Chivalry, and her right of Free-hold shall drown in the Chattel, because the Writ of Dower lies against him, and the Heir shall take advantage of it. 1 Inst. 266. a.

Coparceners, but one Heir.

A. MAKES a gift in Tail, reserving 2 s. Rent to himself during his Life, and if he die, his Heir within age, then a Rent of 20 s. to his Heirs for ever; A. dies, having Issue two Daughters, one of full age, the other within age; here the Donee shall hold by Fealty only, inasmuch as the one Daughter as well as the other is his Heir, and both of 'em make but one Heir, ergò his Heir is not within age, nei­ther is his Heir in that Case of full Age: But if the reservation had been, and if he die, his Heir neither within age, nor of full age, there it had been good; note, if it begins not in his next heir, it shall never begin, because the precedency is not per­formed. 1 Inst. 164. a.

Special Tail.

LAND is given to I. S. and to the Heirs which he shall engender on the Body of an English Woman, he Marries a French Woman, and she dies, and then he Marries an English Woman; this is now a good Estate in special Tail, by Cataline. Owen's Rep. 32.

One Tenant in Common takes all.

IF there be two Tenants in Common of Timber, or other Goods, and one of them takes the Timber, and puts it in­to his several Land, the other cannot ju­stifie his entry into the Land to retake it, for inasmuch as in Law 'twas no tort for him to take it all to his own use, by rea­son of the Trust that is between them; the other cannot justifie a Trespass in the Land to retake it, but must take it when he may without doing a Trespass. 2 Roll. 566. Masters and Polley.

One Ship takes another in the presence of a third.

THE Civil Law is, That if two Ships meet at Sea together, altho' they went not [Page 137] forth as Consorts, yet if one of them in the presence of the other take a Ship with Goods in it, the other shall have a Moiety of the Ship and Goods taken, for her pre­sence there at the time of the taking, was a Terror to the Ship which is taken, sine quo the other Ship could not so easily have taken her. 2 Leon. 182.

Tenant in Common with himself.

IF Lands be given to John Bishop of Norwich, and his Successors, and to John Overal, Doctor of Divinity, and his Heirs, being one and the same Person, he is Te­nant in Common with himself, for he takes both in his natural and politique ca­pacity, which in such case cannot stand in Jointure, therefore it is a Tenancy in com­mon: But note, This Rule holds not in Chattels reals and personals; for if a Lease for Years be made, or a Ward granted to a Bishop and a Secular Man, or if Goods he granted to them, they are Joint-Tenants, because they take not in their politique ca­pacity. 1 Inst. 190. a.

See 2 Roll. 91. between the Dean and Chapter of St. Peter's of York and Power: One entred into an obligation to the Dean and Chapter of York, and to A. B. and C. D. of 2000 Marks; the Dean and Chapter [Page 138] are Tenants in Common with A. B. and C. D. for that the Body politique having a several capacity from the Body natural, cannot take in Jointure with it. Vide Ley's Rep. 82, acc' that if an Obligation be made to I. S. and a Corporation, and I. S. die, the Obligation shall not survive, but the Corporation, and the Executors of I. S. must join in Suit.

Where one may vouch himself.

A MAN shall not regularly vouch him­self, as Assignee of a Fee-simple, for the Law will not suffer things inutile and un­profitable; and yet if the Father be en­feoffed with warranty to him and his Heirs, and he enfeoffeth his Heir apparent in Fee, and dies, he (as it is said) shall vouch himself, and the Heir in Borough English, by reason that the Act in Law de­termined the Warranty between the Fa­ther and the Son. 1 Inst. 390. a.

See Plowd. Com. fol. 7. b. Manxel's Case, that if a Father being enfeoffed with war­ranty, enfeoffeth his Son and Heir with warranty, and dies; the Son in a Praeci­pe brought against him may vouch the Feoffor of his Father, for the Law will not suffer him to vouch himself, and when he comes in as Vouchee, then to deraign [Page 139] the first Warranty, for the circuit of Voucher. Vide Finch's Law. 55.

A. mixes his Money with B's at play, and B. keeps it all.

A. AND B. being at Play, A. thrust his Money into B's heap, and mixed it, and B. kept it all, whereupon (they striving for the Money) A. brought Trespass of Assault and Battery, & quod cumulum pecu­niae, containing Five Marks, cepit; and the whole Court was of opinion, in regard the Plaintiff's own Money cannot be known, and this his intermedling is his own Act, and his own wrong, that by the Law he shall lose all; for if it were otherwise, a Man might be made to be a Trespasser against his Will, by the taking of his own Goods, to avoid which inconvenience, the Law will justifie the Defendant's detaining all: Querens nihil capiat per Billam. 2 Cro. 366. Ward and Ayres. and 2 Roll. 566.

So if I voluntarily intermingle my Corn with another Man's, he may take all. ibid. and 1 Siderf. 38. the end, accord' by the Chief Justice.

Action for playing with false Dice.

A. ENTICED B. to play with him at Dice, at a Game called Passage, whereupon he played with him, and when it came to B's turn to throw, A. delivered in true and fair Dice, with which he play'd, but when it fell to his own turn, he threw with false Dice, such as he knew would run Five or Six upon every Die, and so B. lost 10 l. whereupon he brought an Acton up­on the Case for this Deceipt, and recove­red. 1 Roll. 100. Hartwell and Oak's Case.

Note, It was resolved in Martin Leeser's Case, That if common Players with false Dice, to couzen the People at Play, do en­ter into the House of another Man, and desiire him to play at Dice, and with their false Dice couzen him of his Money by Play, altho' this be not Felony, nor an Offence for which he shall lose Life or Member, yet he shall be set upon the Pillory where the Offence was committed. 2 Cro. 497, 498.

Motion to quash an Indictment against two for being Common Players at Cards, and defrauding the Plaintiff of 40. s. not saying Vi & Armis; but, per Curiam, it's needless. 2. to say, Angl. a Trick at Cards, [Page 141] without a Latin Word, there being none for it, is good. 1 Keb. 652.

Where the Owner may retake his Goods, tho' altered in Form.

A WRONG-Doer cuts down Trees, and carries them away, and makes Timber or Boards of 'em, yet may the owner retake 'em in the Land of the Tort-feasor: For in all Cases where a thing is taken wrong­fully, and altered in Form, yet if that which is the principal part of the sub­stance remains, the notice of the thing is not lost; as if a Man should tortiously take away my Cloak, and make himself a Duoblet of it, yet I may retake it from him. So if one take from me a Piece of Cloth, and after sow Silver or Gold into it, yet I may take it from him, Quia major pars substantiae remanet. Moor. pla. 67.

Note, If I. S. bequeaths a Pack of Wool to I. D. and after the Testator converts it into Cloth, and dies possessed of it, I. D. shall not have the Cloth. Doderidge En­glish Lawyer, 132.

Where Property shall not be altered by a Sale in Market Overt.

'TIS the opinion of some, that the Goods of a Bankrupt, tho' he has sold them in Market Overt, are, notwithstand­ing that liable to the sale of Commissio­ners, by Twisden: And 'tis clear they are liable if sold out of Market Overt. 1 Si­derf. 272. initio.

See Dyer, fol. 99. placito. 68. A Man bought stoln Beasts out of Market, and gave Five Shillings to have election to re­fuse in the Market to be holden the next Day, and then in the Market he agreed to have the Beasts, and payed Toll: It was held in this Case that the property was not altered, for that the Agreement relates to the Contract out of the Mar­ket, quod nota.

In Trover by Gibbs against Basil for a Gelding, the Case was; one Porter stole this Gelding from the Plaintiff, and sold him to the Defendant in open Market by the name of Lister, and 'twas entred so in the Toll Book that Lister sold him. This is no good sale to bar the Plaintiff, for the Stat. 2 and 3 Philip and Mary, cap. 7. provides, that no property of stollen Goods shall be altered that are sold, unless the Name and [Page 143] Sirname of the Parties to the sale be entred in the Toll Book. Owen 27.

Justification.

IF a Man hath a heap of Corn by my heap of Corn, and he takes a handful out of my heap, I may take a handful out of his, and justifie, for he shall not take advantage of his own wrong. 2 Roll. 566. n. 10.

To justifie the taking anothers Goods without being a Trespasser.

IF one Saddles my Horse, and then puts him into his own Ground, I may well come and take my Horse out, and keep the Saddle, and not be liable to Trespass for so doing; and because he puts his Sad­dle upon my Horse, I may justifie keep­ing it, 'till he brings Action to recover it: So if one load my Cart with his Corn, or my Boat with his Coals, or the like, I may well take my Cart, and Boat away, and keep and detain the Goods without being a Trespasser, 'till he bring a Detinue to recover 'em fron me. 1 Buls. 96.

Demurr to a Demurrer.

NOTE, One may demur to a Demur­rer for the doubleness of it, for a Demur­rer should be formal and certain to avoid Barbarism and inveigling the Court, but if he demurs not to it when he may, but joyns in the Demurrer, he hath now slip­ped the advantage, and he cannot demurr afterwards.

A Demurrer is double, when he that demurrs assigns therein for cause of it, one Error in Fact, and another in Law, which he ought not to do, for if either of the Causes be true, it is sufficient to over­throw the Plea, and it is at his liberty to insist upon that which is best for his own advantage, but not upon both, for this were to puzzle the Proceedings. See Stiles Pract. Reg. 133.

Accessary to an Accessary.

IF one feloniously receive another that is an Accessary to a Felony, the Recei­ver is an Accessary. Stamf. lib. 1.

One of ill fame demands the Rent without Authority, &c.

LEASE for Years rendring Rent, with re entry for Non-payment; at the day a Stranger came to demand the Rent, the Lessee asked him by what Authority, and be­cause he was a couzening Fellow, and no­toriously infamous, and would not shew any Authority from the Lessor; the Lessee would not pay the Rent, and so the Les­sor entred, and adjudged lawful, for that a command to receive Rent may be by Parole. Cro. Eliz. 22. Sir John Souch's Case.

Serjeant Moor reports a Case (without Name) in the same Year with this, but another Term: A Lease for Years upon condition to re-enter for not-payment of the Rent; at the last day there came upon the Land a Man of an ill fame, who was Out-lawed in Forty Actions, and conver­sed all the day with the Lessee, but said not a Word for what cause he came, and at the last instant of the day, he demanded the Rent; the Lessee asked him what au­thority he had to receive it, he answered he was sent thither by the Lessor, but shewed not any authority to prove his message, nor was he known to be Recei­ver [Page 146] or Servant to the Lessor: Upon the whole matter, the Judges were of opi­nion, that if any would swear this to be true, the Lessor ought not to enter; whereupon one was immediately sworn, who deposed that this Person was a Man of ill fame, and the Notes of the Records of the Out-lawries were shewn, and so the Lessee was discharged, quod nota. Moor 141. numb. 282.

Verba fortius accipiuntur contra proferentem.

IF I grant a Rent of ten Pounds to Ba­ron and Feme, and if the Baron die, that the Feme shall have three Pounds Rent, here because these Words rest ambiguous, whether I intend three Pounds by way of increase, or three Pounds by way of re­straint and abatement of the former Rent of ten Pounds, it shall be taken strongliest against me that am the Grantor, that it is three Pounds addition to the Ten: But if I had let Land to Baron and Feme for three Lives, reserving ten Pounds per annum, and if the Baron die, reserving three Pound, this shall be taken contrary to the former Case, to abridge my Rent only to three Pound. 8 Ass. p. 10. See Bacon's Elem. 11.

Deed good without Delivery.

'TIS commonly said that every Deed ought to have Writing, Sealing, and Deli­very, and when any thing passeth from one that hath no Understanding but by his hearing, as a Blind and unlettered Man, the Deed ought to have Reading too; yet Note, In some Case a Deed shall be good without any Delivery; as the Deed of a Corporation aggregate, for the affixing of their common Seal gives perfection to it without any Delivery; as if a Dean and Chapter put their Chapter Seal to a Deed, it is a perfect Deed without any more. Davies Rep. 44. b. Cro. Eliz. 167. 2 Roll. 23.

Vide Savil 49. where Manwood is of the same opinion, viz. that a Confirmation by the Dean and Chapter to confirm Leases made by the Bishop, needs not a­ny Delivery of the Deed, but that 'tis good if it be Sealed, tho' it remain conti­nually in the Chapter-House; but Baron Shute held, that such Deed is not of any effect without Delivery, and 'tis there left a Quaere.

Slander, Daffidowndilly.

ONE said in the North-Country that I. S. was a Daffidowndilly, and adjudged actiona­nable, because by this Word is meant there an Ambidexter, being a Flower of party-colour. Hetl. 123. Noy 98. the end. See Cro. Eliz. 914.

Thus to say of one in Devonshire, and thereabouts, He is a Healer of Felons, will bear an Action, for it is taken there for a hider or concealer of Felons, and they usually say, The Healer is as bad as the Stea­ler. Yelv. 153. Noy. 133.

So to say of one in some Countries, He hath strained a Mare, where it is taken for, He hath stoln a Mare, or Buggered a Mare. Yelv. 153. March pl. 3. 2. Buls. 146. Cro. Eliz. 250. Moor 419. ca. 574.

So to say of a Man in Northumberland, Westmorland, &c. He is an out-putter, where 'tis meant a Horse-stealer. 2 Buls. 146.

See Hob. in several places, for such parti­cular Words.

Where one shall lose his Goods without any de­fault in him.

THERE be divers Cases (saith St. Jer­myn) where one shall lose his Goods, and [Page 149] no default in him; as where Beasts stray away from a Man, and are taken up and proclaimed, and the Owner has not heard of 'em within the Year and the Day, tho' he made sufficient diligence to have heard of 'em, yet the Goods are forfeite [...] and no default in him: So it is whe [...] one Man kills another with the Sword [...] I. S. the Sword shall be forfeit as a De [...] dand, and yet no default is in the owne [...] Dr. and Stud lib. 2. cap. 51.

Note, In case of Deodands, as to things fixed to the Freehold, the Law is taken to be clear otherwise now than it was when Briton and Horne wrote, who say, That if a Man fall from a Mill, House, or Tree, these shall be forfeited, for the Law will not suffe that a Man shall lose his Inheritance by another's negligence, where there is no default in himself.

Tenant for Life makes a Lease for Years, and after enters upon the Termor, and commits waste, and the Lessor recovers, the Lessee shall lose his Term.

Tenant by Curtesie.

A SEISIN in Law of Lands in Fee descends to a Feme Covert, and the Lands are in the County of York, but the Hus­band and Wife are dwelling in Essex, and [Page 150] the Wife dies within a Day after the descent, so that the Husband could not enter du­ring the Coverture for the shortness of time, yet it is said he shall not be Tenant by the Curtesie, and yet there is no de­fault in him according to common pre­tence; but they say he might have spo­ken (before the Ancestor's Death) to one dwelling near the place where the Lands lay, to enter in his Wife's right immediately after the Ancestor's Death. Perk. Sect. 470.

See Perk. Sect. 469. that altho' the Day of payment of the Rent do incurr in the Life of the Wife, and she die before any demand made of the Rent by the Husband, that yet there he shall be Tenant by the Curtesie.

Exchange.

EXCHANGE of Land in Ireland for Land in England is good. 10 E. 3. 42. Pal­mer's Rep 459.

A Man Indicted for maiming himself.

ONE Wright, a young, strong, and lu­sty Rogue, caused his Companion to strike off his left Hand, to make himself impo­tent, and have thereby the more colour to [Page 151] beg, or be relieved, without putting him­self to any labour; both of 'em were in­dicted, fined, and ransomed for it: This was in my Lord Coke's Circuit, Anno 11. Jac. I. with the opinion of the other Judges. 1 Inst. 127. a. b.

The life and members of every Subject are under the safeguard and protection of the King, to serve Him and their Coun­try, when occasion shall be offered, which is the reason that a Lord could not maim his Villain, but the King should punish him for maiming his Subject by Fine, Ran­some, and Imprisonment, &c. because hereby he hath dissabled him to do the King service. ibid.

One Fined for disturbing of the Court.

ONE Coxe was Fined, ad Curiam visus Franc. Plagii & Baronis, because he put on his Hat in the Presence, and in Contempt of the Court, and of the Lord, and said, He cared not what He could do, and hin­dered the Business of the Court, Incivili­tèr se gerens. 1 Keb. 451. and 465.

Words Treason.

ARTHUR Crohagan, an Irishman, was arraigned of Treason for speaking these [Page 152] Words at Lisbon, I will Kill the King [in­uendo Dominum Carolum Regem Angliae.] if I may come unto him; and about Two Years after, he came into England for the same purpose: He pleading Not Guilty, was tried by a Middlesex Jury, and 'twas directly proved by two Merchants, that he spake those Words on Ship-board at Lisbon, in great heat of Speech, with one Captain Bask, and added [Because he is an Heretick] and because his Traiterous In­tent, and the Imagination of his Heart is declared by these Words; it was held High Treason by the Common Law, and within the express Words of 25 Edw. III. and he being arrested by Warrant for this cause, most insolently put his Fin­ger into his Mouth, and scornfully pulling it out said, I care not this for your King, &c. He was found guilty, and had Judgment accordingly. He confessed he was a Do­minican Frier, and made Priest in Spain, and altho' this and his returning into En­gland to seduce the Liege People be Trea­son by Stat. 23 Eliz. yet the King's At­torney said, he would not proceed against him for that, but upon 25 Edw. 3. of Treason. Cro, Car. 332, 333. See Cro. Car. 125. that no Words are Treasonable unless made so by some Statute. and 3 Inst. 14.

Whether 'tis a Nuisance for a Rope-dancer to erect a Stage, &c.

JACOB Hall the famous Rope-dancer had erected a Stage in Lincoln's Inn-Fields, but upon a Petition of the Inhabitants, there was an Inhibition from White­hal: Now upon complaint to the Judges that he had erected one at Charing-Cross, he was sent for into Court, and the Chief Justice told him he understood it was a Nuisance to the Parish, and some of the Inhabitants being in Court, said, it occa­sioned Broils and Fightings, and drew so many Rogues to that Place, that they lost Things out of their Shops every Af­ternoon. Hales said, that in 8 Car. I. Noy prayed a Writ to prohibit a Bowling-Ally erected near St. Dunstan's Church, and had it. Modern Rep. 76. Post.

Information for keeping a Cock-pit.

ONE Howel being Convicted of keep­ing a common Cock-pit six Days, was fi­ned 12 l. the Court conceiving it an un­lawful Game, and took their Measures by 33 H. VIII. c. 9. of 40 s. a Day, tho' the Information were at Common Law. 3 Keb. 465. and 510.

Forfeiture of a Copyhold.

A. LORD of a Mannor holding of his Court, and B. a Tenant being in the Court, there arising a Question whether the Court were then legally held, B. was asked if he appeared or not? he answered, If it be a legal Court I do appear, but if it is not a legal Court, I do not appear: Quaere, if this be an appearance, or such a refusal to appear, whereby the Copy-holder shall forfeit his Copy-hold, or not. Roll Chief Justice said, if there was a real Contro­versie whether the Court was well held or not, it would be hard to make it a Forfeiture, but if not, and that the Words were used only as a Shift to avoid his Suit and service, it is a Forfeiture for the Words are like Jack in a Box, and no body knows what to make of 'em; the other Three Judges inclined it was no forfeiture. Stiles 241. Parker and Cook.

Rope-dancing. Ante.

THE Court being informed that Jacob Hall was building a Booth for dancing on the Ropes at C. sent for him and the Work­men by a Tipstaff, and because he would not enter into a Recognizance not to [Page 155] build on, they committed him, and then he ceased. 2 Keb. 846.

Replevin of Goods not destreined.

REPLEVIN is the bringing of the Writ De Replegiari facias by one whose Cat­tle or Goods are distreined, &c. and put­ting in Surety to the Sheriff, that upon de­livery of the Distress, he will prosecute the Action against the Distreinor. Yet Note, In a special Case a Man may have a Replevin of Goods not destreined; as if there be Lord Mesne and Tenant, and the Mesne put in his Cattle in lieu of the Cattle of the Tenant paravaile, whom he is bound to acquit, he shall have a Reple­vin of those Cattle, yet they never were di­streined. 1 Inst. 145. b.

Replevin lies, notwithstanding a grant to keep the Distress against Gages and Pledges.

IF a Rent be granted with clause of Distress, and further, that the Grantee shall keep the Goods distreined against Ga­ges and Pledges, 'till the Rent be paid, yet shall the Sheriff replevy the Goods, for 'tis against the nature of such a Di­stress to be irreplevisable, and by such an intention the Currant of Replevins should [Page 156] be overthrown, to the hinderance of the Commonwealth, and so 'twas dissallowed by the whole Court, and awarded that the Defendant should gage deliverance, or else go to Prison, which the Lord Coke saies, in his opinion, is an excellent point of learning. 1 Inst. 145. b.

Witches.

THE Law against Witches does not prove there be any, but it punishes the Malice of those People that use such means to take away Mens Lives. If one should profess that by turning his Hat thrice, and crying Buz, he could take away a Man's Life, (tho' in truth he could do no such thing) yet this were a just Law made, that who­soever should turn his Hat thrice, and cry Buz, with an intention to take away a Man's Life, shall be put to death. Selden.

Note, To say of one Thou art a Witch, is not Actionable, because he may bewitch you with his fair Countenance, or fine Discourse. (2 Cro. 150. and 306. contra, be­cause it brings him within danger of the Stat. 1 Jac. which makes every witchcraft Felony) but to say Thou art a Witch, and deservest to be hanged, will bear Action, be­cause the last Words explain what man­ner of Witch he intends. So to say Thou [Page 157] art a Witch, and hast bewitched my Mother's Milk, Drink, Hogs, &c. So it seems of Chil­dren: But to say— and hast bewitched I. S. Quaere, because I. S. may be captivated with the amiableness of the Plaintiff's Person: So Note, the difference between saying he has bewitched a thing which has sense, and a thing which has not. 1 Siderfin 52. 53.

Trespassor ab initio.

A MAN comes into a Tavern, and will needs stay up all Night; the Vintner is not bound in such Case to watch with him, nor attend upon him all the Night; and therefore if he prays him to be gone, and he will not, but remains there all Night, he is a Trespassor ab initio. 11 H. IV. 75. b.

Note, He that misuses an Authority which the Law gives him, as in that Case, (so if one distrein for Rent, and kill the Distress) shall be a Wrong-doer ab initio: Otherwise if he abuse an Authority that another gives him; as if I lend my Horse to I. S to ride to York, and he ride farther, yet the riding to York shall not be unlaw­ful. Vid. Co. 8. 146. Perk. fo. 39. 40. 2 Roll. 561, &c. in Abridgement.

Quaere, if a Distress be taken for a Rent-charge, and is misused, whether the De­strainor [Page 158] shall be a Trespassor ab initio, be­cause the Authority to distrain comes from the Party.

Justice Hutton's Case.

MR. Justice Hutton having argued in the Exchequer Chamber in a Case adjourned thither upon a Scire facias by the King a­gainst Hampden for Ship-money, wherein he was of opinion, That as well for the Matter as Form upon divers exceptions to the pleading Judgment should be given a­gainst the King: After this, one Thomas Harrison, Batchelor of Divinity, came to the Court of Common Pleas, (Hutton and Crawley being then upon the Bench) and said, I accuse Mr. Justice Hutton of High Treason; for which he was committed to the Fleet by Justice Crawley, and after by the King's direction indited in B. R. and Convicted, and Fined 5000 l. to the King: And the Judge preferring his Bill against him there, recovered 10000 l. damages. Hut. Rep. 131. Cro. Car. 503.

Trades.

IN the time of H. IV. when Sir Willi­am Gascoine was Lord Chief Justice, a cer­tain Vintner was indicted for selling of [Page 159] Wine, and also for selling of Victuals to such as would resort to Dine and Sup at his House, and being thereof Convicted, he was Fined; whereupon he consulted with some of his Fraternity, and told 'em, If they would give five Pounds to Gascoine, all would be well; and so they collected 5 l. between 'em to present him, which Gas­coine understanding, he caused the Vint­ner to be Indicted for this also, who was after Fined for it, Palmer 396. 397.

Note, A Man could not by the Common Law use as many and what Trades he would before the Stat. 5. Eliz.

Memorandum, John Walter Knight, Lord Chief Baron, a profound learned Man, and of great Integrity and Courage, be­ing Lord Chief Baron by Patent, primo Caroli, quamdiù se benè gesserit, fell into the King's displeasure, and being commanded to forbear the exercising of his Judicial place in Court, never did exercise it from the beginning of Mich. Term quinto Caroli un­till he died, viz. the Eighteenth of Novem­ber, 1630. But because he had that Office quam diù se benè gesserit, he would not leave his place, nor surrender his Patent without a scire facias to shew what Cause there was to determine, or forfeit it, so that he continued Chief Baron until the Day of his Death. Cro. Car. 203.

One Indicted for behaving himself immodestly and Irreverently at Church.

A CERTIORARI was prayed to re­move an Indictment at the Sessions at Hart­ford against I. S. quod non reverentèr & mo­destè se gessit during Divine Service, but the Court refused to grant it; for altho' it is punishable by Ecclesiastick censures, yet they conceived it a proper cause within the cognizance of the Justices of Peace. 1 Keb. 491.

Slander.

ACTION upon the Case for Words a­gainst a Feme (on a question asked her per quendam ignotum) Did I. S. the Plaintiff Ravish you? She answered Yes. Had he the use of your Body? She answered Yes. Where­upon he brought his Action against Baron and Feme. Foster conceived, that in re­gard the Person is found to have done it falsò & malitiosè, without legal authority, 'tis a Scandal; contrà by Twisden in one Emme's Case; one that had a Child at Nurse came to a Surgeon, with whom she was reported to be in cure for the Pox, who on enquiry told the Father she had the foul Disease, which was held no Scandal, [Page 161] not being spoken malitiosè, with intent to Scandal her. 1 Keble 542. Host and Oake­man.

[Thou art a Thief, and hast stollen my Mai­den Head] no Action lies. 1 Brownlow 2.

Justa occasio Loquendi.

IN Fox's Book of Martyrs, there is a story of one Greenwood, who lived in Suf­folk, that he had perjured himself before the Bishop of Norwich, in testifying against a Martyr that was burnt in Queen Mary's time, and had therefore afterwards, by the just Judgment of God, his Bowels rotted in him, and so died: But it seems this story was utterly false of Greenwood, who after the Printing of the Book of Mar­tyrs, was living in the same Parish: It happened after that one Prick, a Parson, was presented to the Living of that Parish where this Greenwood dwelt; and some time after in one of his Sermons, happen­ed to inveigh much against the Sin of Perjury, to which his Text led him, and the better to deterr the People from it, he told them this passage out of Fox, That one Greenwood, being a Perjured Person, and a great Persecutor, had great Plagues inflicted upon him, and was killed by the Hand of God; whereas in truth he never [Page 162] was so Plagued, and was himself present at that Sermon, and thereupon brought his Action upon the Case for calling him a Perjured Person; and the Defendant plead­ed, Not Guilty: And this matter being dis­closed upon the Evidence, Wray Chief Ju­stice delivered the Law to the Jury, That this being delivered but as a Story, and not with any Malice or Intention to slan­der any, he was not guilty of the Words maliciously, and so was found Not Guilty.

This Case is cited by Coke, 2 Cro. 91. and affirmed to be good Law by Po­pham, when one delivers ought after his occasion, as matter of Story, and not with intent to Slander any; See the Case, 1 Roll. 87.

'Tis cited too by Sir Robert Atkins in his Treatise of the Jurisdiction and Prive­lege of Parliament, &c. fol. 11. If a Man (says he) be in discharge of his Functi­on, and lawful Calling, and discoursing of a subject proper for it, in pursuit thereof tells a Story, which he takes up upon Trust, not know­ing it to be false, and it prove at last to be utterly untrue, and an innocent Person is high­ly Slandered by it, yet he shall not be subject to an Action of Slander for it, the occasion of speaking shall clear him from the Malice, with­out which the Action will not lie.

One calling himself by a wrong Name is arrest­ed, the Arrest is naught.

IN an Action of False Imprisonment by Coot against Lighworth, the Defendant ju­stified, because he had a Warrant to Ar­rest I. D. and he demanded of Coot what his Name was? who answered, that his Name was I. D. and therefore he arrested him; to which the Plaintiff demurred, and had Judgment; for the Defendant at his peril, must take notice of the Party. Moor fol. 457. Agreeable hereunto, see Doctor and Stud, 311. That if a Sheriff upon a Replevin deliver other Beasts than were destrained, tho' by information of the Par­ty that destrained, yet Trespass lies, for he shall be compelled by the Law to exe­cute the King's Writ at his peril, accord­ing to the Tenor thereof, and to see that the Act which he doth be lawfully done.

Note, Grome's Case in Palmer's Rep. 395. I. S. knowing that Execution would be made upon his Goods, procured I. D. by Covin to bring his Cart into his Yard, to the intent that the Baily might take it in Execution, and so to have Trespass a­gainst him, the Bailiff did take the Cart, but afterwards having knowledge of the matter, sent the Cart back, and I. D. [Page 164] brought Trespass, but Lea Chief Justice held, that the Bayliff might plead the fraud in excuse.

Bond in a Book, good.

A MAN writes an Obligation in a Book, and in the same Leaf he puts his Seal to it, and then delivers the Book to the Obligee as his Deed; this is a good Ob­ligation, for he delivered that which makes the Obligation and more, as his Deed; and altho' the Delivery be void for the Surplus, yet it's good for the residue. Cro. Eliz. 613. Fox and Wright's Case; ci­ted also 2 Roll. 25.

Action upon the Case for inserting his Name in Letters of Excommunication.

ONE Harris was Excommunicated by Sentence, and the Letters of Excommuni­cation delivered to the Parson of the Pa­rish, to be read and published in the Church: But the Parson having malice a­gainst one Kenton, razed out the Name of Harris, and put in Kenton, and pronoun­ced him Excommunicate; whereupon Ken­ton brought an Action upon the Case a­gainst the Parson, and adjudged maintain­able, for altho' the Excommunication be [Page 165] Spiritual, and the denouncing thereof; yet the Rasure and Alteration is meerly tem­poral, for which an Action well lies at the Common Law, and this was not on­ly an injurious Vexation, but also Scanda­lous to Kenton. Cro. Eliz. 838. Kenton and Wallinger, and 1 Roll. 100.

Prince Henry committed to the King's-Bench.

HENRY the Fifth, whilst he was Prince, did many things very incongruous to the greatness of his birth; for he and his wild Companions would often way-lay, and rob his Father's, and his own Receivers; and when one of his Servants was ar­raigned at the King's Bench Barr for Fe­lony; this Prince hearing of it, posted thither, and commanded his Fetters to be struck off, and he to be set at Liberty: When William Gascoigne Lord Chief Justice opposed him therein, and commanded him upon his Allegiance to cease from such Riot, and keep the King's Peace; the Prince in a Rage ascended the Bench, and gave the Judge a Blow on the Face, who sate still undaunted, and boldly thus spake unto him: Sir, I pray remember your self, this Seat which I here possess is not mine, but your Father's, to whom, and to his Laws, [Page 166] you owe double Obedience; if his Highness and his Laws be thus violated by you who should shew your self obedient to both, who will obey you when you are a Sovereign, or Minister Exe­cution to the Laws that you shall make? Where­fore for this default, in your Father's Name, I commit you Prisoner to the King's-Bench, until his Majesties pleasure be farther known: With these Words, the Prince abashed, stood mute, laid by his Weapons, and with obeysance done, went to the Prison. Medull. Hist. Angl. in vita H. V. 3 Inst. 225.

He proved afterwards one of our great­est Kings, being (as I find him Character­ed) a Prince Godly in Heart, Sober in Speech, Sparing of Words, Resolute in Deeds, Provident in Counsel, Prudent in Judgment, Modest in Countenance, Mag­nanimous in Action, Constant in Under­taking, a great Alms giver, Devout to God-ward, a Renowned Soldier, Fortunate in Field, from whence he never returned without Victory.

Queen.

THE King cannot grant to another for Life the Office of making Saddles for the Queen, for the Queen is a Feme sole, [Page 167] and so may choose her own Officers. Dubitatur P. 6. Jac. C. B. between Aubur­curmil and Cure. 2 Roll. 213. n. 12.

The Violating of a Queen Dowager, no Trea­son.

THE Stat. of 25 E. 3. says, Si homme violast la Compaigne le Roy, &c. which sig­nifies the King's Wife or Consort, for it is no Treason to violate her unless it be done during the Marriage with the King, and therefore extends not to a Queen Dow­ager, who after the King's death is not sa Compaigne. 3 Inst. 8. 9.

Action upon the Case for throwing Wine upon his Velvet Doublet.

ONE Carey brought an Action of Tres­pass, quare vi & armis, against Stevens for casting Wine upon his Velvet Doublet, and well brought, tho' he might have had an Action upon the Case. Noy 48.

Where one may justifie the detaining of a thing 'till Satisfaction made.

IF a Taylor has a Sute to make for me, he is not compellable to deliver it, untill he is paid for the making; yet he cannot [Page 168] sell it for default of payment, as an Inn-keeper may an Horse where there is no special agreement; for the keeping of the Horse is a charge, because he eats, but the keeping of Apparel is no charge. Yel­verton 67.

Note, If I contract with a Taylor to give him so much for making, &c. he can­not detain the Cloths till he is satisfied, &c. (because he may sue me upon the Con­tract) per Williams. 2 Roll. 92. initio.

See Popham's Rep. 127. Robinson and Wal­ter, that an Inn-keeper may detain the Horse of I. S. till he be satisfied for the Meat he has eaten, tho' he were brought to him by a Stranger.

A Wife entices another Man to marry Her.

COOPER brought an Action upon the Case against Witham and his Wife, for that the Wife maliciously intending to marry him, did often affirm that she was sole and un­married, and importuned & strenuè requisi­vit the Plaintiff to Marry her, to which affirmation he giving Credit, married her, where in facto she was Wife to the Defen­dant, so that the Plaintiff was much trou­bled in mind, and put to great Charges, and much damnified in his Reputation: He had a Verdict but no Judgment, for [Page 169] by Twisden the Action lies not, because the Thing here done is Felony: No more than if a Servant be killed, the Master cannot have an Action per quod Servitium amisit, quod Curia concessit; besides the ground of this Action is the Communi­cation and Contract of the Wife, which shall not bind the Husband. 1 Siderf. 375.

Whether Trespass lies for Husband or Master for a Battery whereof his Wife or Servant dies?

IF one beat my Servant, whereby I lose his Service for a long time, and he afterwards dies, I shall have an Action of Trespass, because it was a distinct Tres­pass to me, by William's Justice: But if one beat my Wife, whereby she langui­shes, &c. and after dies, I shall not have Trespass for this Battery, because the Tres­pass was not done to me, but to my Wife, so that she was to have joyned in the Action, and I only for conformity. 2 Roll. 568. Huggin's Case.

Note, that Case is reported by Yel­verton, 89. 90. and warrants not the di­versity taken; for 'tis holden there by Three Judges (no mention of Justice Wil­liams) that the Master shall not have an Action for such Battery and loss of [Page 170] Service; but that here as well as in the other Case, the Servant dying with the extre­mity of the Battery, it is now become an Offence to the Crown, being turned into Felony, which drowns the particular Of­fence and private wrong offered to the Master, and so his Action is gone: Vide 1 Siderf. 375. Acc'. and Stiles 347. where Roll. himself being Chief Justice, cites the Case of Higgins to have been ad­judged, That Trespass lies not for the Battery of a Wife whereof she died, be­cause (says he) it is Felony; the reason given by the Three Judges why it lies not for the Master. See 1 Brownl. 205.

Admiralty.

A MERCHANT hath a Ship taken by a Spaniard, being Enemy, and sometime after an English Merchant with a Ship na­med Little Richard retakes it from the Spaniard, and the owner of the Ship sues for it in the Admiralty Court, but a Pro­hibition was granted, for that the Ship was gained by Battle of an Enemy, and neither the King, nor Admiral, nor the Parties to whom the Property was before, shall have it. 2 Brownl. 11. Weston's Case.

Master and Servant.

A SURGEON in consideration of a Summ of Money, assumed to cure the Ser­vant of I. S. of a hurt which he had in his Leg, and afterwards applied unwhol­some Medicines to it, on purpose to make the cure the greater, whereby I S. lost the Service of his Servant for a long time, wherefore he brought an Action upon the Case against the Surgeon, and recovered. 1 Roll. 98. Everard and Hopkins.

If a Drawer in a Tavern sell Wine that is corrupt, an Action upon the Case lies for this against the Master, tho' he did not command his Servant to sell it to a­ny Person in particular: And no Action lies against the Drawer, tho' he knew the Wine to be corrupt, because he sells it only as Servant to another. 1 Roll. 95.

Vide Dr. and Stud. 285. that if one send his Servant to Market with a thing which he knows is defective, to be sold to a cer­tain Person, and the Servant sells it to him, an Action lies against the Master: But if he send it to be sold generally to whom he can, no Action of Deceit lies against the Master. 1 Roll. 95. Accord'.

[Page 172]If my Servant be cozened of my Mo­ney, I may have an Action upon the Case for the deceit against the Cozener. 1 Roll. 98. Paul Tracie's Case.

So I may justifie the beating of ano­ther in defence of my Servant, for he is in a manner my Chattel. 2 Roll. 546. the end. (The contrary admitted, Palmer 54.) See Owen 150.

A Servant shall justifie the Battery of another in defence of his Master. 2 Roll. 546. Quaere 14 H. VI. 24. b.

Note, Tho' in the Case of Felony, if the Principal die, or be pardoned before Attainder, the Proceedings against the Ac­cessary fail ( Co. 4. 43. b.) yet in a Tres­pass, if one command his Man to beat you, and the Servant after he has beaten you, dies, yet your Action of Trespass stands good against the Master. 17 H. IV. 19 Bac. Elem. 32.

I. S. suffered a Soldier to get a Child upon the Body of his Maid-Servant, and the Order of Sessions was, that I. S. should contribute to half the charge of keeping it. Curia. 'Tis not within the Stat. of 18 Eliz. and the Order was quashed.

Possession, how to be Defended.

IN Trespass of Assault and Battery, the Defendant pleaded De son Assault demesne; the Plaintiff replied, the Defendant would have forced his Horse from him, where­fore he did Molliter insultum facere upon the Defendant in defence of his Possession: to which the Defendant demurred. Mor­ton Justice: Molliter insultum facere is a con­tradiction; suppose you had said, that Mol­litèr you knocked him down? Twisden: you cannot justifie the heating a Man in de­fence of your Possession, but you may say that you did molliter manus imponere, &c. Keeling, You ought to have replied, that you did Molliter manus imponere, quae est ea­dem transgressio. Curia: Quer' nil cap. per bill. Mod. Rep. 36. and 1 Siderf. 441. Jones and Tresilian.

Slander of a Counsellor at Law.

PETER Palmer of Lincoln's-Inn brought an Action upon the Case against Boyer, and declared that he was an Utter-Bar­rester of the Law, and got his living by practising the Law, and was Steward of divers Courts, and namely of one I. P. Esq and the Defendant praemissorum non ig­narus, [Page 174] to the intent to prejudice the Plain­tiff in his good Name and Practice, said of the Plaintiff these English Words, viz. Peter Palmer is a paltry Lawyer, and hath as much Law as a Jackanapes; 'twas moved in arrest that the Words would not main­tain an Action; because not slanderous, for 'tis not said, He hath no more Law than hath a Jackanapes, that had been Actionable, for thereby he had abated the Opinion of his Learning; but it is not so in this Case, the Words being, he hath as much Law as hath a Jackanapes, which is no impeachment of his Learning, for e­very Man that hath more Law than a Jackanapes, hath as much: Sed non alloca­tur, for the Comparison is to be taken in the worst Sence, and tantamounts that he hath no more Law than a Jackanapes, which is a slander in his Profession, where­by he acquires his Living. Owen 17. Cro. Eliz. 342. Goldsb. 126. Winch 40.

Vide March fol. 60. where Judge Berkley saies, it had been adjudged, where one said of a Lawyer, That he had as much Law as a Monkey, that the Words were not Actionable, because he hath as much Law, and more also; but if he had said, He hath no more Law than a Monkey, these Words were Actionable. See Hetley 71.

Words against an Attorney.

ACTION for these Words; Is Martyn (the Plaintiff) your Attorney? He is the Foolishest and Simplest Attorney towards the Law, and if he doth not overthrow your Cause, I will give you my Ears. He is a Fooll and an Ass; and adjudged for the Plaintiff, for these Words touch him in his Place. Cro. Eliz. 589.

Slander against a Parson.

SUIT in the Spiritual Court by a Par­son for saying of him, That he was a Fool, an Ass, and a Goose, for which, upon Mo­tion, a Prohibition was granted, for they are only Words of Choler, as Pocky Fa­ced Knave, Jade, and Quean, and relate not to his Profession. 3 Keb. 28. Newcom­bin and Kingerby.

Where Things shall not pass, tho' granted by express Words.

A MAN by Deed indented, bargains and sells, gives and grants his Mannor of Dale, and all his Trees growing upon it; but the Deed is not enrolled according to the Statute; here, inasmuch as the Mannor [Page 176] passes not for want of Inrolment, the Trees shall not go to the Bargainee, al­tho' they are granted by express Words; and that the Grant of every Man shall be taken most strongly against himself; for the Law does not favour Fractions and Severances of Trees from the Free­hold and Inheritance of the Land, be­cause by such means very often Trees shall be wasted and destroyed. Co. 11. 48. a. in Liford's Case. 1 Roll. Rep. 100.

Besides, it was not the intent of the Parties that the Trees should pass as Chat­tels without the Mannor, and as one shall not frustrate or defeat his own Grant by his own Act; so the Words of a Grant shall be construed according to a reaso­nable and easie Sence, with regard to the meaning of the Parties by them; and therefore 14 H. VIII. 1. if a Man grant all his Woods and Trees, Apple-Trees will not pass.

Note, that tho' by a grant of all my Trees, Fruit-Trees will not pass, yet if I ex­cept all my Apple-Trees, all other Fruit-Trees pass, as I suppose. Vide Hob. 304.

Again, The Law construes things with equity and moderation, and therefore re­strains a general Grant, if there be any mischief or inconvenience in it, and there­fore if a Corody be granted to one, and [Page 177] his Servant to sit at his Mess, he cannot bring a Servant that hath some filthy or noisome Disease: So if a Common be granted to one for all his Beasts, yet he shall not have Common for Goats, nor Geese, nor other Beasts not commonable. Finch his Law 56.

So if a Man grant Common in all his Lands, the Grantee shall not have Common in his Orchards, Gardens or Meadows. 3 Leon. 250.

Where one may have an Estate Tail, yet all the Issues barred to inherit.

BARON and Feme Tenants in special Tail, with Remainder to the Barons right Heirs, they have Issue A. the Baron dies, A. in the Life of his Mother levies a Fine with Proclamations to I. S. and re­solved it should barr the Estate Tail, tho' 'twas clearly admitted that the Feme re­mained Tenant in Tail. Co. 3. 50.

If the Son of Tenant in Tail levy such a Fine in his Fathers Life, it barrs the Tail from descending, yet the Father remains Tenant in Tail. Co. 9. 141. for the Son is concluded, and cannot enter against his own Fine. See Stat. 32. H. VIII.

Name.

DEBT upon Bond was brought against one Jaacob Aboab, by the Name of Jacob, he pleaded that he was called and known by the Name of Jaacob, and not Jacob; but it was over-ruled. Mod. Rep. 107. 3 Keb. 284.

See a notable Case in Stiles Rep. 389. 390, &c. the Report of it is very long, but this is the short on't. One [Mills] sei­sed of Lands in Fee, devised them to E­lizabeth his Daughter in Tail, with a pro­visoe that if she Married one of his own Sir­name, that then she should have the Lands in Fee-Simple: She Married one [Mill] but commonly called and known by the Name of [Mills] also: In this Case the Court held that Mills and Mill are not one and the same Sirname, for the Testa­tor had a particular Eye to his own true Sirname, and the common reputation of Mill and Mills to be the same Name, shall not make Mill to be the Testator's true Sirname. Note, This is a special Case, and goes not according to the ordinary Rules of Names that sound alike.

Hence I shall take occasion to treat of Names, what Names are the same in Law, and what are not.

[Page 179]It is held that Sain John and Saint John are several Names: So are Elizabeth and I­sabel; so Margaret, Marget, and Margerie; so Gillian and Julian; so Agneis and Anne; so Cozen and Cousin; so Edmund and Ed­ward; so Randulphus and Randal; and so Ran­dulphus and Randolphus; so Randolph and Ranulph; so Isabel and Sibil; for all which see 1 Anderson 211. 212. 2 Cro. 425. 558. 640. 2 Roll. 135.

But Piers and Peter are one Name, 2 Cro. 425. so Saunders and Alexander; so Garret, Gerrard, and Gerald. 2 Roll. 135. so Joan and Jane. 2 Cro. 425.

Note, Tho' James and Jacob are several Names, yet Jacobus is Latin for both, and will serve for either of 'em. 2 Roll. 136.

Sir John Hathwaie was bound in a Bond thus, Noverint Universi me Jean. Hathwaie teneri, &c. this was a good Obligation, for [Jean.] shall be taken for an abbrevi­ation of Johannem, and so the same Name. Cro. Car. 416. 418. 2 Roll. 136.

Note, If the Name of the Obligor be sub­scribed, it is sufficient, tho' there be a blank or blot for his Christian Name in the Bond. 2 Cro. 261. Dobson and Key's. See more of Names, 1 Keb. 427.

What one cannot do by another.

THERE are some things personal, and so inseparably annexed to a Man's Per­son, that he cannot do them by another, as the doing of Homage and Fealty. So it is holden that a Lord may beat his Villain for cause or without cause, and the Villain is without remedy; but if the Lord command another to beat him with­out cause, who does accordingly, the Vil­lain shall have an Action of Battery a­gainst him. So if the Lord destrain his Tenant's Cattle, when nothing is behind, yet the Tenant for the Reverence and Duty that appertains to the Lord, shall not have Trespass vi & armis against him; but if the Lord command his Bailiff or Servant to destrain in such case where no­thing is behind, the Tenant shall have an Action of Trespass vi & armis against them. Co. 9. 76. a. in Comb's Case.

Where a Commoner shall have an Action up­on the Case against the Lord.

If the Lord surcharge the Soil with Co­nies, the Commoner upon this particular loss may have an Action upon the Case [Page 181] against him. Yelverton 104. 105. See Cro. Car. 387. 388.

Words ending in Ment.

JUSTICE Doderidge saies, It has been wittily observed, that all Words which end in Ment, shall be taken and expound­ed according to the Intent, as Parlia­ment, Testament, Arbitrament, &c. Latch 41. 42.

Where one shall be remitted against his own Discontinuance and Reprisal.

BARON and Feme Tenants in special Tail; He aliens in Fee, and takes back an Estate to them for their Lives, this is a Re­mitter to both, maugre the Husband, for it cannot be so to the Wife, without also to him, because they are but one Person in Law, tho' he be estopped to claim, and so it is a remitter in him against his own alienation and reprisal. Lit. Sect. 672.

Note, if he had taken the Estate to him a­lone, he could not have been remitted against his own alienation; but when the Estate is made to Husband and Wife, tho' they are but one Person in Law, and no Moie­ties between 'em, yet because she can't be [Page 182] remitted unless he be remitted also, and because remitters are favoured in Law, the more ancient and better rights being thereby restored, therefore in Judgment of Law both are remitted, quod nota. 1 Inst. 354.

Where a Wife may convert Goods to her own use.

THE common Doctrine is, That a Wife cannot convert Goods to her own use, because she has no property du­ring the Husband's Life; yet note, In some Case there may be a Conversion of Goods by the Wife to her own use, as if she find, or take Barley from another (as the Case was) and bake it into Bread, and eat it herself. March fol. 60. and Jones 443. per Jones Justice.

Note, When the Baron and Feme joyn, it is the Act of the Baron only, and the Feme in such Case cannot convert to her own use, But an Action of Trover well lies for conversion by the Feme before Marriage, or by the Feme only during the Coverture, for she may do a Tort solely, and the Husband shall he sued with her, but not where she joyns with the Husband. Cro. Car. 254. Rhemes and Humphreys, and fol. 494. Perry and Diggs, acc'. See 2 Cro. 5.

Where a Wife may give Evidence against her Husband.

THE Lord Coke in his 1 Inst. fo. 6. b. says, It has been resolved that a Wife can­not be produced either for or against her Husband, quia sunt duae animae in carne unâ, and it might be a cause of implacable Discord between them, and a mean of great inconvenience: Yet it was resolved in the Lord Audley's Case, Hut. Rep. 116. that altho' in the Case of a Common Per­son between Party and Party, the Wife cannot be produced as a Witness against her Husband, yet between the King and the Party upon Indictment she may, al­tho' it concerns the Feme herself; as in that Case the Lady Audley gave Evidence against my Lord, who was accessary to her Rape, and was thereof found guilty.

Husband swears for his Wife's Debt.

DEBT against Baron and Feme for certain Barrels of Beer sold to her dum so­la, &c. they both waged their Law, and did both swear according to the form of the Oath, quod nota, That the Husband swore for his Wife's Debt. Cro. Eliz. 161. Weeks and Holms. See 1 Inst. 172. b. acc'. [Page 184] that the Husband and Wife of full age, shall make their Law for the Debt of the Wife before the Coverture.

Whether a Wife shall be examined upon a com­mon Recovery.

SEE 1 Siderf. 322. in Fine, where the Reporter saies, Quaere, How a Wife can be barred, unless by Fine, because she is not examined upon a common Recovery: Yet vide the same Rep. fol. 11. that she shall be privately examined when she suffers a Common Recovery, as well as where she levies a Fine, by Bridgman Chief Justice, (tho' she was there permitted to do it without such examination) And 1 Roll. 347 is, That if Baron and Feme suffer a Recovery, it shall bind her, because she is examined in it: And Co. 11. 77. a. if a Feme Covert make any Conveyance, unless by Fine or Recovery, it is avoidable, yet fol. 78. a. it is said, That the Person of a Feme Covert is dissabled to convey her Land unless by Fine upon due exa­mination. Vide Stiles 320. by Roll. Chief Justice. It is not to be questioned whether a Recovery bind a Feme, for it is the common Practise, and 'tis not necessary to examine her, tho' it be a prudential thing [Page 185] to do it; but if it be not done, it is not averrable that it was not done.

Man and Wife but one.

A WRIT of Conspiracy for endicting one of Felony does not lie but against two Persons at the least, therefore you shall not have such a Writ against Husband and Wife, because they are but one Per­son. (and one only cannot be said to con­spire with himself) F. N. B. 116. K.

Payment.

IN Debt, the Condition was to pay 100 l. to I. S. and his Wife: per Curiam, if the Defendant plead payment to I. S. a­lone, it is good, for payment to him suffi­ces, without naming the Wife. Goldsb. 73. May and Johnson.

Note, If one is obliged to pay Money to two actually, he can pay it only to one of 'em, for he cannot pay the same summ to two several Persons at one and the same time. 2 Siderf. 41.

Priviledge.

IF the Wife of an Attorney of the King's-Bench be arrested, she ought not to claim the Priviledge of that Court, not to put in bail to the Action, as her Husband may; but he must put in bail for her, and for want thereof she shall go to Prison. Stiles Pract. Reg. 446.

Slander of a Justice of Peace.

ONE said of a Justice of Peace, He is a Logger-headed, and a Slouch-headed, Bursen­bellied Honnd; this is no cause of Indict­ment before Justices of Peace in their Ses­sions, partly for want of Jurisdiction, and partly because the Words are not Actiona­ble. This was assigned for Error after Judg­ment. Adjornatur. 1 Keb. 629.

Pictures and Hangings.

A PICTUE nailed through the Frame to the Wall is fixed to the Freehold, and cannot he removed, by Twisden: But note, such things as use not ordinarily to be so fixed, tho' they are nailed yet may be re­moved, as Hangings, &c. Contrary of a [Page 187] painted Cloth nailed round, by Hales and Rainsford. 3 Keb. 74.

Simony without the Privity of the Incumbent or Patron.

THE Father of the Incumbent contract­ed with the Patron's Wife to give her 100 l. if the Patron would present his Son, the Patron and Incumbent not knowing of this Contract, as it was found by special Verdict, yet held within the purview of the Stat. 31 Eliz. So note, Simony may be by compact betwixt Strangers without the Privity of the Incumbent or Patron. Ci­ted Cro. Car. 331. to have been adjudged in Calver's Case.

An Incumbent being sick, the Father contracted for the next Avoidance for 100 l. in the presence of his Son, and after the Incumbent died, the Father presented his Son, who was Inducted, and agreed clear­ly to be Simony: but all the Judges (ex­cept Anderson) held, That if the Son had not been privy to the bargain, it had not been Simony; yet they agreed, If a Stran­ger buy the next Avoidance, and present one that is not privy 'till afterwards, and after is made privy, and then presented, that this is Simony: Not so where the Father buys, because bound in nature to [Page 188] provide for his Son; Q. of the difference. Moor 916. Smith and Sherborn's Case. Vid. Noy 22. Hob. 165.

Extinguishment.

LESSEE for Ten Years grants a Rent-charge to his Lessor for the said Years, the Lessor grants the Remainder to the Lessee for Years: The Court held that the Rent was gone, because the Lessor who had it was Party to the destruction of the Lease, which is the ground of the Rent. 4 Leon. 2. Buckhurst's Case.

Lease.

A MAN made a Lease for Years by Indenture, reserving a Rent, and in the Counterpart of the Lessor 27 l. was reser­ved, in the Counterpart of the Lessee but 26 l. afterward a Controversie arose be­tween them what Rent should be paid, the Lessor would have 27 l. the Lessee would pay but 26 l. but after was content to pay 27 l. and so agreed with the Lessor, and drew a Stroke in his Indenture, and made it 27 l. this made his Lease void. 2 Roll. 29. Facman's Case.

Simony, tho' no Admission nor Institution.

ONE was Simonaically promoted to a Benefice, but this was Anno 1659 when there were no Bishops, and so there was no Admission nor Institution, and there­fore moved he could not be guilty of Si­mony within the Statute: This was offered to be found specially, but dissallowed by the Court, for by this Argument none could be guilty of Simony in the late times, because no Bishops to admit and institute, which would be inconvenient. 1 Siderf, 221. Snow and Phillips.

Advowson.

A MAN presents to his own Church as Proctor to another, by this he loses his Advowson. So if Lessee for Years of an Advowson be presented to the Church, 'tis an Extinguishment of the Term. Owen 142. Rudd and Topsey's Case.

Property changed by Offerings.

IN the time of Popery here, if a Stran­ger had taken my Goods, and offered them to an Image in a consecrated Church, this had made as good a change of the pro­perty [Page 190] of my Goods, as if I had sold them in a Market overt; but if I found the Goods after in the Wrong-doers possession, I might take them again. 34 H. VI. 10. Co. 10. 91. a. Degg 147.

Property in Negroes.

IN the Case of Butts and Penny, 3 Keb. 785. it was resolved by the Court that Negroes are by Usage tanquam bona, and shall go to Administrator until they be­come Christians, and thereby they are in­franchised: This was upon a special Ver­dict in an Action of Trover, the Jury find­ing that Negroes are usually bought and sold in India.

So Trover lies for Monkeys, because they are Merchandise, and valuable, (without shewing they are tame or reclaimed.) 2 Cro. 262.

Libel for Knave.

LIBEL for calling one Knave, Prohi­bition lies, because in the time of H. VI. Knave was a good Addition. Week's Case. Trin 12 Jac. B. R. Latch 156. 1 Siderf. 149.

Attorney made a Knight.

IF I make I. S. my Attorney, and he (the Warrant of Attorney still continuing) is made a Knight, yet the Warrant of At­torney is not determined, tho' the Word Knight, which is now part of his Name, be not in it. By Brown Justice. Owen's Rep. 31.

Creation of a Gentleman.

A GENTLEMAN is by Descent, yet (says the Lord Coke) I read of the Crea­tion of a Gentleman, and thus it was: A French Knight came into England, and challenged John Kingston Yeoman (a good and a Strong Man at Arms, but no Gen­tleman) at certain Points and Deeds of Arms, &c. Unde Rex (saith the Record) ut dictus Johannes honorabiliùs in praemissis ac­cipiatur, ipsum Johannem in ordinem Genero­sum adoptavit, & Armigerum constituit, & caetera honoris Insignia ei concessit. 2 Instit. 595. and 668.

Addition.

A GENTLEMAN by Reputation that is neither Gentle by Birth, Office, or Crea­tion, but commonly called Gentleman, and known by that Name, is a sufficient Addition within the Stat. 1 H. V. c. 5. Ca­ter's Case, cited 6 Rep. 67. a. But if he is named Yeoman, he cannot abate the Writ. 2 Inst. 668.

'Twas moved to quash an Indictment of Forcible Entry, because the Addition of the Parties was in English, scil. Weaver, Confectioner, &c. but the Court over-ru­led it, for many Persons have been hang­ed that have had no other Addition in their Indictment: Note, It is the constant practice to put them in English in Indict­ments. 1 Siderf. 101. the King against March, &c.

If a Gentleman by birth be a Mercer, or, &c. and be named so in an Origi­nal, &c. he may abate the Writ, for he ought to be named by the degree of a Gentleman, because it is worthier than the Addition of any Mystery. 2 Inst. 668. 669.

Wife loses Money at Play.

OUR Law excludes not the Wife from using her Husband's Goods in common with him (which is the reason that a Wife cannot feloniously take her Husband's Goods, and tho' she so take 'em, and de­liver 'em to a Stranger, yet no Felony in the Stranger: And that if a Feme Covert say of I. S. He stole my Plate out of my Cham­ber; altho' she may not have Plate of her own, yet because in common Speech 'tis well known that the Wife accounts her Husband's Goods her Goods, the Words are Actionable, Cro. Car. 52.) yet for all this, she cannot dispose of her Husband's Goods, and therefore 'twas adjudged in Stephens his Case, that where a Wife play­ed at Cards, and lost 40 l. of her Hus­band's Money, that the Husband should recover it again in Trover against the Gamester. 1 Siderfin 122. 1 Keb. 340.

Quaere what Remedy for the Gamester if he loses to the Wife, or will the Law construe it a Gift of the Money to her, &c.

A. takes B's Wife and Cloths her.

AN Adulterer takes away another Man's Wife, and puts her in new Clothes; the Husband may take the Wife with her Clothes, for it is as it were a Gift of the said Apparel unto her: Besides, the more worthy thing draws to it things of less worthiness, as a base Mine where there is Ore, shall be the King's for the worthiness of the Ore. Finch's Law 22, 23. Vide Cro. Car. 344.

Woman Indicted for copulating with a Dog.

ONE Hicks was Indicted at the Old Bai­ly on the 12th of July, 1677. upon Stat. 25 H. VIII. cap. 6. for Buggery, having suf­fered a Dog to copulate with her, which being fully proved against her, and found by the Jury, she was condemned and han­ged at Tyburn on the 18th of July follow­ing, and the Dog on a Tree by. 3 Keb. 800. The King and Hicks.

See Leviticus chap. 18. v. 23. Thou shalt not lie with any Beast to defile thy self there­with, neither shall any Woman stand before a Beast, to lie down thereto: It is Confusion.

Woman promises never to Marry again.

A GENTLEWOMAN took her Hus­band's Death so heavily, that she said, She would never Marry again; but her Son comforted her, saying, God will pro­vide a new Husband, and said, he would give her 10 l. to pay 100 l. when she marri­ed; she accepted the Money, and within half a Year after Married, whereupon the Son brought an Assumpsit for the 100 l. and this being brought into the Chancery, the Master of the Rolls awarded him only 10 l. saying, he would give never a Penny more, for that it was unreasonable to barr a Gentlewoman from Marriage. Owen 34. Vide 2. Keble 865.

Bond not to sell his Wifes' Clothes.

A MAN was obliged with condition not to sell his Wife's Apparel, and held a good Bond, tho' it was moved to be a­gainst Law, and contrary to the liberty of a Husband so to oblige himself; but Coke held it clearly good, as if one should oblige himself to a Stranger to pay to his Wife yearly 20 l. this without question is good. 1 Roll. Rep. 334. Smith and Wat­son's Case.

Deed takes effect from the Delivery, not the Date.

IF A. covenant that B. shall have all his Trees now standing, this refers to the Trees standing at the time of the delivery, and if any be felled after the Date, and before the delivery, he has no remedy for them, by Flemming. 2 Cro. 264. Vide Dyer 139. a. and 2 Roll. 21.

In an Action of Debt upon a Bond, the Defendant pleaded Deins Age; the Case was, That when the Obligation was Seal­ed and Delivered, the Defendant was of full Age, but at the time when the Bond bore date, he was under Age 'twas ruled that the time of making the Bond was when it was sealed, and not when it bore date. 1 Brownl. 30. 31.

Deed enrolled the Day of the Date, yet good.

THE Stat. 27 H. VIII. c. 16. says ex­presly, That Bargains and Sales to an use of Inheritance of Freehold must be by Deed indented and enrolled within six Months after the date thereof, &c. yet it has been held that a Deed may be enrol­led the very Day of the date, which the Lord Hobart says is by reason of the intent [Page 197] of the Law, and not by the Letter. Hob. 139. Moor 40. and 42. acc.' tho' it is there said that such an Enrolment had been ad­judged void. See Latch. 14.

Tender of 50 l. in Stone.

IN the Case of Hooks and Swain, 1 Si­derfin 151. Twisden says he remembred this nice Case; Sir William Fish was bound by Obligation to pay (such a Day) in Gray's- Inn Hall, fifty Pounds, generally, without saying of Money; and therefore upon the Day, when the Gentlemen were at Sup­per, Sir William came in, and tendered fifty pound weight of Stone, and adjudg­ed no tender. See Owen 64. where Plow­den says, Libra in Latin signifies a Weight; yet if one is bound in Vigint. Libris, and forfeits his Bond, he must pay Money, and not Lead, or the like.

Witnesses.

ONE burned in the Hand for a Felony may be a Witness in a Cause, by Rolls Chief Justice, for he may purchase Land, and his fault is purged by his punishment. Stiles Rep. 388. and Pract. Reg. 571.

If an Action be brought against two, and at the Assizes the Plaintiff proceeds [Page 198] only against one of them, the other may be allowed a Witnes in the Cause. Godb. Case 418.

The Sheriff arrests a Man looking out of his Window, &c.

WHEN an Execution is lawfully begun, or hath a legal Commencement, the She­riff may justifie the breaking of the Par­ties House to take him, otherwise if there be no legal Commencement: This diver­sity was taken and agreed for Law in Sir Wil­liam Fish his Case; Sir William was look­ing out of his Window, and the Sheriff per fenestram delivered to him a Capias ad Satisfac. to take the said Fish, and appre­hend him, and Fish escaped from him, and the Sheriff broke the door of his House maintenant, and retook him, and adjudg­ed lawful, because there was a lawful be­ginning of the Execution before, which was presently pursued. Palmer's Rep. 53.

Vide Hobart fol. 62. That a Sheriff can­not upon private process rush into a House which by craft, as knocking at the Door, &c. he procured to be opened unto him, and there the first entry was held unlawful, for the opening of the Door was occasio­ned by craft, and then used to the Vio­lence intended.

Sanlder.

IF a Man say to another, Thou art a Rogue, and a Pocky Rogue, and the Pox haunts thee twice a Year; an Action lies, for hereby 'tis apparent he intended the great Pox, because these are wont to grieve those that have them bis per annum. viz in the Spring and Autumn. Prekington's Case. 1 Roll. 66, 67.

Where Circumstances shew the apparent intention of Words doubtful in themselves, that they are slanderous, an Action lies for them, as where one said of a Woman [That she did lie with a Weaver of Colche­ster in a Dutch, and the Weaver's Breeches were down, and they were at it] an Action lies, for altho' the Weaver might lie with her in a Ditch without harm, yet the lat­ter Words shew he intended that the Wea­ver had carnal Knowledge of her. Roll. 1 Rep. 420. Root and Molyne's Case.

[I know what I am, and I know what the Plaintiff is, [I never Buggered a Mare:] Per. Cur' tho' no grammatical affirmation is a suf­ficient scandal, yet being found with such intention, and so imagined by the Hear­ers, the Ironical speaking will not excuse. Jud. pro Quaer'. 3 Keb. 546.

Slander.

A. SAYS to B. One of Us two is Perju­red: B. says to A. It is not I; and A. says again, I am sure it is not I: B. shall have an Action for these words, for the subse­quent Words shew apparently that he in­tends Him. 1 Roll. 75. Coe and Chambers.

Justice Twisden said, he remembred a Shooe-maker brought an Action for saying He was a Cobler; and tho' a Cobler be a Trade of it self, yet 'twas held the Action lay; in Chief Justice Glyn's time. Mod. Rep. fol. 19.

Margaret Commings brought an Action for these Words, viz. Thou art a Whore, and a base burnt Arse Whore, and adjudged Actionable. 2 Siderf. fol. 5. (the French Pox usually comes of burning, Cro. Eliz. 2.) but 'tis left a Quaere there, whether the Words [Thou art a burnt Whore] will bear an Action.

Not Guilty.

A MAN may plead Not Guilty, yet tell no lye, for by the Law no Man is bound to accuse himself, so that when I say Not Guilty, the meaning is, as if I should say by way of Paraphrase, I am not so guilty [Page 201] as to tell you; if you will bring me to a Tryal, and have me punished for what you lay to my charge, prove it against me. Selden.

Presentation.

IF I am seized of an Advowson, and I present to it as Procurator to a Stranger, this shall be an Usurpation upon my self for the Stranger.

So if I present to an Advowson, where­of I my self am seized, as Attorney to a Stranger, this is an Usurpation for him. 17 E. 3. 60.

Where a Child may choose his Father.

IF a Man has a Wife and dies, and within a very short time after the Wife marries again, and within nine Months hath a Child, so as it may be the Child of the one or the other; some have said that in this Case the Child may choose his Father, Quia in hoc casu Filiatio non po­test probari; for avoiding of which questi­on, and other inconveniences; the Law before the Conquest was, Sit omnis Vidua sine Marito duodecim mensibus, & si marita­verit perdat dotem. 1 Inst. 8. a.

[Page 202]See Finch his Law 117. that if one die, his Wife priviment enseint (i. e. so with Child, as it is not discerned) and she take another Husband, the Issue born within a Month (or such a time as it is impos­sible he should beget it) shall be account­ed the Son of her first Husband, and cites 21 E. 3. 29.

'Tis said the Law now is, That if a Wife bring forth a Child begotten by a former Husband, or any other before mar­riage, but born after marriage with ano­ther Man, this latter must own the Child, who shall be his Heir at Law.

Assault.

IF a Man assault me, I am not bound to attend untill he strikes, but I may lay him on before in my own defence, for it may be I shall come too late afterwards. 2 H. IV. 8. per Curiam.

Wearing a Sword no breach of the Good Beha­viour.

THE Wearing of a Sword after one is bound to his Good Behaviour, is no breach of the Good Behaviour now; as perhaps it was heretofore (see Cromp. Justice of Peace 119. 126.) when Swords were not [Page 203] usually worn but by Soldiers, for then they struck as great a Terror in People as a Blun­derbuss does now. But since at this Day Swords are usually worn by all sorts of People, this cannot now be construed a breach of the Good Behaviour: So that which heretofore was a Crime, is now by Custom become none. Hawles Remarks, &c. 81.

Slander.

ACTION will lie for these Words, [ This is the Whore that my Man Thomas be­gat a Bastard on, and spent all my Money upon, and the Quean hath been too long in Town to my ease.] Stiles 274 277. [...]. Roll. 38.

So for this [ He hath got Mary Nab with Child, and the Child is his, and I have tried it with a Sieve and a pair of Sheers.] Stiles 379.

So for this, [ Thou art an Whoremaster, for thou hast lain with Brown 's Wife, and hadst to do with her against a Chair,] whereby he lost his Marriage; tho' 'twas objected, This was the first President where loss of Marriage was ever [...]aid for Words spoken of a Man. 2 Cro. 323. Vide 3. Buls. 48.

It will not lie for this, (A. is an errant Whore, and would have lain with me Seven Years since, and I would not unless she would go to the Hedge.] for this is a Spiritual Slander only.]

Wife a Chattel.

A MAN may justifie the Battery of a­nother in defence of his Wife, for she is his Chattel. 2 Roll. 546. the end.

Prohibition.

A. WAS sued in the Ecclesiastical Court for beating his Wife, and calling her Whore, and sentenced to pay her three Shillings a Week for Alimony, and divers Fines were imposed upon him for non­performance, and provided he should en­ter into a Recognizance; a Prohibition was granted. 2 Brownl. 36. Agar's Case.

Complaint in the Spiritual Court by the Wife against her Husband.

CLOBORN'S Wife complained against him in the Spiritual Court causâ saevitiae, for that he gave her a Box on the Ear, and spate in her Face, and whitled her a­bout, and called her Damn'd Whore: This was not by Libel, but verbal Accusation, reduced after to writing: The Husband de­nied it, but the Court ordered him to give her four Pound every Week pro Expensis Litis and Alimony; whereupon he mo­ved [Page 205] for a Prohibition, suggesting that he chastized his Wife for a reasonable cause, as by the Law of the Land he well might, after which she went from him, and that they were reconciled again, which took away the former saevitia, as reconciliation after Elopement. Richardson Chief Justice said, The Suit being held without Libel is no ground for a Prohibition, if they pro­ceed according to their Form, which we are not Judges of, but if they deny a Co­py of the Libel, a Prohibition lies by the Statute. For the matter; The Sentence in causâ saevitiae is à Mensâ & Thoro, and we cannot examine what is cruelty and what not: But without doubt the matter alledg­ed is cruelty, for spitting in the Face was punishable by the Star-Chamber: But if Cloborn had justified, and set forth a Pro­vocation by the Wife to give her reasona­ble castigation, there would be some co­lour for a Prohibition: and they advised him to tender a Justification, and if refu­sed, then to move for a Prohibition. Het­ley 149. 150.

Where a Horse shall be led to the Pound with his Rider on his Back.

A HORSE whereon a Man is riding cannot be destrained for Rent: But Chief Justice Keeling was of opinion that such a Horse may be destrained Damage Feasant, and that he shall be led to the Pound with his Rider upon him. 1 Siderfin 440.