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 't is 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 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 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 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 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 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 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 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. 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 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 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 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 't was 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 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 't is 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 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
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 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 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 't was 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 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 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