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 ' 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 'T is 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 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 't was moved in arrest that the Words would not maintain an Action because not slanderous for 't is 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 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
Tenant dies here the Lord shall have the Land against his own confirmation for 't is 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 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 't was 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 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 't is 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 't was 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. 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 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 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.
the very Day of the date which the Lord Hobart says is by reason of the intent 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 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 't is 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 't was 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 't is 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 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. 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. 'T is 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 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
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 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 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 'T was 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 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 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 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 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
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 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. 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 't was 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 râ—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 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 'T is answered No If you ask whether the King may 't is 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 't was adjudged that his Issue by the Second Wife was lawful for 't is 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 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
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 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 'T IS 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 't is 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 't was 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 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
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 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 't is 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 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 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. 'T is 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. 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