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
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 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 't was 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 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 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. 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 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
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
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. â— 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' 't was objected This was the first President where loss of Marriage was ever â—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 non-performance 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 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. FINIS A Catalogue of Books some of them newly Printed for Sam. Briscoe over-against Will 's Coffee-House in Russel-Street in Covent-Garden THE History of Polybius the Megalopolitan containing a general Account of the Transactions of the World and principally of the Roman People during the first and second Punick Wars with Maps describing the Places where the most considerable Engagement and Battles were fought both by Sea and Land Also an Account of their Policies and Stratagems of War of the Ancient Romans in Conquering the greatest part of the then known World in Fifty three years Translated by Sir H. S. To which is added a Character of Polybius and his Writings By Mr. Dryden in Two Volumes 8 vo Price 10 s. The Lives of the Twelve Caesars the first Emperors of Rome Written in Latin by C. Suetonius Tranquillus Translated into English by several eminent Hands with the Heads of the Emperors on Copper Plates Advice to a Young Lord Written by his Father under these following Heads viz. Religion Study and Exercise Travel Marriage House keeping Hospitality of the Court of Friendship of Pleasure and Idleness of Conversation Aristotle's Rethorick or the true Grounds and Principles of Oratory shewing the right Art of Pleading and Speaking in full Assemblies and Courts of Judicature In four Books Second Edition The Religious Stoick or a short Discourse on several Subjects Viz. Of Atheism Superstition the World's Creation Eternity Providence Theology Strictness of Churches of the Scriptures of the Moral and Judicial Law of Monsters of Man and his Creation of the Immortality of the Soul of Faith and Reason of the Fall of Angels and what their Sin was of Man's Fall of the Stile of Genesis why Man fell with a Refutation to the Millennaries with a Friendly Address to the Fanaticks of all Sects and Sorts The Second Edition by Sir George Mackenzie A Moral Essay preferring Solitude to Publick Employment and all its Appennages such as Fame Command Riches Pleasures Conversation By Sir George Mackenzie Second Edition Jovial Poems and Songs by several Hands Ovid's Epistles Translated by several Hands Adorned with Cuts Physical and Mathematical Memoirs Written at the Royal Academy of Paris Where you may be furnished with most sorts of Plays
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.
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