after the Fact is where any one wittingly or ignorantly q Dier fo 355 n. 36. receives cherisheth assisteth and comforteth a Felon r Stanf. l. 1. c. 46. or who receives stoln goods to keep them or to dispose of them together with the Theife s Fulb. par Theft fo 202. Lamb. fo 295. But a Wife who in this case conceales the secret of her Hushand is exculable through the necessity of her Duty t Stanf. l. 1. c. 46. which is also true in case shee commit the Fact upon his command u Id. ib. c. 19. And there are also Accessories of Accessories as where any one doth wittingly receive the Accessory of an Accessory w Id. ib. 33. The punishment due to Felons both principalls as Accessories is to hang by the neck untill they dye and to forfeit their Goods and Lands if they have any x 24 H. 8. c. 45 Coo. l. 4. Beverleys case 124. Only here is the difference That the Accessory cannot be punished before the Principall be convict and Attaint y Stanf. l. 1. c. 43. Plow 97. Dyeâ— fol. 120. n. 10. Now the Lands escheat to the Lord of the Mannor who notwithstanding was formerly compelled to expect untill the King had received his yeare and his day and waste unlesse the King himselfe â—ere Lord. z Stanf. l. 3. c. 3. Flet. l. 1. c. 28. Moreover the Issue of Felons is so infected that they are excluded from all hope or possibility of succeeding in the Inheritances of their Ancestors which otherwise should have descended to them unlesse there be any thing more favourably enacted in case of any particular crime contrary to the common and ordinary forme a 1 Mar. c. 14 1 Jam. c. 11 12. 34. But these things which wee have spoken concerning the punishments of Treasons and Felonies must have their distinctions therefore it were requisite to explain them Now the way of impeaching any of these crimes is double one by Appeal b Stanf. l. 2. c. 52 53 54 55 56 57 58 59. the other by Indictment at the suite of the Supream Power c Id. c. 59. If they proceed by way of Appeale and that it be an Accuser who takes upon him the proofe of the crime it is at the election of the Defendant unlesse hee will confesse the fact to wage his Battaile with the Appellor or to be tryed by his Country Or in case he were a Peer of the Realm to be tryed by a Verdict of his Peers or Pares d Id. l. 3. c. 1. Flet. 1. c. 21. 31 32. But if he be indicted he is left solely to the tryall of his Country or Peers And if in either case he be convict he is punished with Death 35. But it sometimes happens that the party accused through contumacy refuseth to be tryed either way but either stands mute or pleads not so As by his answer Issue may be joyned to come to Tryall In which cases if it be by Appeale he is immediately adjudged to dye e Dyer 441. n. 49. If by Indictment then is it taken Pro Confesso in case of Treason And in cases of Felony he shall be impressed viz he shall be committed to the Prison from whence hee was brought where he shall be carryed into some low dark place and being stripped naked he shall be laid upon the bare ground his Pudâ—ndâ—e only covered and his Arms and Legs pulled out by four ropes fastned to the four corners of the room hee shall be stretched out upon his back Then being bound in this manner hee shall have so great a weight of Iron or Stone laid upon his Breast as hee is able to beare without confusion The day following he shall have 3. crusts of barly bread without drink next day to that he shall have three draughts of the water next to the Prison povided it be not running water but without Bread And so by turns he shall be fed with bread or water every day untill hee dye through the extremities of weight hunger and cold f Flet. l. 1. c. 32. Stanf. l. 2. c. 60. Dyer 241. n. 49. 36. Now a Woman who is condemned for any the aforesaid Crimes if she be with Child hath the Execution of Judgment deferr'd untill shee be delivered of her Infant g Flet. l. 1. c. 38. 37. There is also a misprision of Felony As in case any one knowes another to have committed Felony and doth not discover it unto the Supream Power or to a Magistrate h Termes of the Law v. misprision Cromp. fol. 39. Now the punishment for this crime is That the party shall be committed to prison untill hee have put in Security for the payment of such a Fine as the Judges shall impose upon him before whom he is convened i Id. ib. And it is to be observed That in all Treasons and Felonies there is a misprision of Treason or Felony comprehended And therefore it is in the power of the Supreame Power if in its clemency it thinks good so to doe to suppose him guilty of misprision only who really is guilty of a greater crime k Id. ib. 38. Next to these which are capitall are those crimes which used to be punished with perpetuall Exile and Banishment As those persons who having committed Treason or Felony and taken Sanctuary were accustomed having confest their crime before the Coroner to abjure the Realm and thereby avoid a greater punishment l Stanf. l. 2. c. 38 39. Terms of the Law v. Abiuration but this is long since altered m 21 H. 8. c. 2. 22 H. 8. cap. 14. 33 H. c. 12. And indeed there are few Facts at this day subject to this and many even of those are not so high as he who kills Deere and cannot finde security to put in for the payment of the Fine imposed is compelled to abjure the Common-wealth n Charta de Forest c. 10. Dier fol. 238. n. 34. which also hee is bound to doe who marries a Woman-Heir having stollen her out of the custody of her Guardian and is not able to satisfie for the value of her Marriage o 13 E. 1 c. 45. So also hee who accepts of a Benefice being elected by the Pope p 13. R. 2. Stat. 2. c. 2. And lastly a Papist who refuseth to come to Church according to Act of Parliament q 35 Eliz. c. 1. 39. Our Statutes also inflict a great penalty upon those who sue or implead any one in a Forreign Realm when the Action belongs properly to the Cognisance of our Courts or where Judgement hath in the same case been given by the Justices here As likewise upon those who by prosecuting a Plaint in another Court endeavour to retard or impeach Judgment given in the Supream Courts of our Supream Power For such Offenders being summoned by distresse either upon the Lands in question or upon any other of
THE Institutes of the Lawes OF ENGLAND Digested into the Method of the Civill or Imperiall Institutions USEFUL FOR ALL GENtlemen who are Studious and desire to understand the Customes of this Nation Written in Latine by JOHN COWEL Doctor of the Civill Law and Regius Professor in the University of Cambridge AND TRANSLATED INTO ENGLISH ACCORDING TO ACT OF PARLIAMENT FOR THE BENEFIT OF ALL. By W. G. Esquire London Printed by Tho Roycroft for Jo Ridley at the Castle in Fleet Street by Ram Alley 1651. THE PREFACE THE Eminency of our Author is so well knowne to this present Age that it were to little purpose for me to imagine that what I am able to say would add any thing to â—is Glory Only this his too much cryâ—ng up Parliament Priviledges rendred him not so much a favourite of those former times as his worth merited â—or his Bookes so vendible as they have â—â—en since these late changes in England And therefore though this Treatise be of the Lawes of England sinâ—â— himselfe was so good a Common wealth man I hope for the Authors sake it wiâ—â— find no less acceptance in â—he Englisâ— World then if he had lived to mayntaine what he in that Age durst avow and thereby appeared in his owne naturall and proper colours If in anthing I have erred in this Translation Charity can pardon me especiallâ— when I shall affirme that this was worke of Charity in my selfe as I conceived not to let so choyse a methoâ— of our English Lawes lye obscured in a language which I know many of this Nation who were wel-willers to the Law could not understand and to those only it is intended And if it happen into any other hand especially into such as hate the profession of the Law I do no â—â—re regard their censure then they do the Laws Precepts which our Author teâ—â— us are to live honestly to do no injury to any one and to render every one their due Farewell A Table of the generall Heads contained in this Treatise OF Justice and Law fol. 1 Of the Law of Nature and Nations and the law Civill 2 Of the right of Persons 7 Of Free-burn 11 Of such as are made free 12 In what causes Manumission cannot be 14 Of the taking away the Law which was called Lex fusia caninia 14 Of those which are in their owne and those which are under the power of others 15 Of Paternall Jurisdiction 16 Of Marriages 19 Of Adoption 27 How and by what meanes Paternall jurisdiction is dissolved 28 Of Ward-ship 30 Who they are that by Test may appear Gardians 31 Of lawfull Guardian-ship of Kindred 32 Of Disfranchisement or diminutio Capitis 34 Of the lawfull Guardian-ship of Lords or Patrons 36 Of the legall Guardianship of Parents 40 Of fiduciary Guardian-ships 40 Of the Attilian tutor-ship which is appointed by the Lex Julia titia 41 Of the authority of Tutors and Guardians 43 By what meanes Ward-ships expire 45 Of Tutors or Overseers 46 Of the security which is to be given by Guard 49 Of the Excuses of Guardians 50 Of Guardians which may fall under suspition 50 Of the division of things and the gaining a property in things 53 Of things corporeall and incorporeall 71 Of the services which Inheritances are bound unto 81 Of Vses and Profits 97 Of Vse and Habitation 100 Of Customes and Prescription ibid. Of Gifts 105 What persons may alienate and what not 114 By what person wee may make acquisition or gaine to our selves 116 Of ordaining last Wills and Testaments 117 Of the Military Testament 122 Who they are that may make a Will ibid. Of the dis-inheriting of Children 126 Of the instituting of Heirs 128 Of the ordinary substitution 130 Of Pupillary Substitution 131 How Wills are invalidated 132 Of those Wills which were called by the Civilians Testamenta inofficiosa 134 Of the quality and difference of Heirs 135 Of Devises 136 Of taking away or translating Devises 147 Of that law wch the Romans called Lex Falcidia 148 Of those Trustees which the Romans called Fidei Commissarij Haeredes ad sanatusconsultum trebellianum 152 Of things left per fidei Commissum ibid. Of Codicills 153 Of Inheritances which are conveyed from such as dye even Intestate 154 Of the legall Succession on the Fathers sidc 157 Of the Tertullian decree 159 Of the Orphitian Decree 160 Of the succession of Cozens by the Mothers side ibid. Of the degrees of Consanguinity 161 Of the Consanguinity of those who are servile 162 Of the succession of such as are made free ibid. Of the assignation of such as are made free 163 Of the possession of Goods ibid Of acquiring by Adrogation or Adoption 164 Of him to whom Goods are granted for liberty 165 Of successions which were amongst the Romans by the sale of Goods according to the Claudian decree Ib. Of Obligations 166 How an Obligation is contracted by a thing done 167 Of Obligation by words 169 Of the two Parties in a Covenant Promise 171 Of the Covenants of Servants 172 The division of Covenants ibid. Of void and unprofitable Covenants ibid. Of Sureties or Pledges 177 Of Obligations by writing 178 Of Obligations made by consent 182 Of Bargain and Sale 183 Of Letting and Hiring 187 Of Partners and Fellowship 195 Of Commandements and Attornments 202 Of Obligat which arise from implyed Contracts 203 By what persons an Oblig is acquired unto us 205 By what meanes an Obligation is taken off 206 Of Obligations arising from Crimes 209 Of things taken by force 211 Of the Aquilian Law 213 Of Trespasses and Injuries 215 Of obligations which arise from imputed crimes 217 Of Actions 218 What is said to be a Contract made by him who is under the power of another 227 Of those Actions which by the Civil Law lay against the Lord for an offence or Crime done by his Servants or Cattell 229 Whether a four-footed Beast may be said to commit a Trespasse or not 230 Of those by whom we may sue 231 Of giving of Pledges or Securities 232 Of perpetuall and temporall Actions which discend to Heirs and against Heirs 238 Of pleas and exceptions 240 Of Replications 243 Of Prohibitions 244 Of the penalty of those who are rasbly litigious 245 Of the office and duty of a Judge 249 Of publique Judgements 254 THE First Booke of the Institutes of the Lawes of ENGLAND Of Justice and Law TIT. I. JUstice is a constant and perpetuall will of rendring unto every one their Due a Bract. l. 1. c. 4. num 2. Flâ—t. l. 4. c. 1. 1. The knowledge or learning of the Law is a knowledg of things both Divine and Humane and a Science distinguishing what is just what unjust b Bract. l. cod num 4. 2. The Precepts of the Law are these To live honestly to doe no injury to any one and to render every one their due c Id. cod nu 6. 3. The Law is to be considered either
certainty by the Legatee c Fulb. par 38. b. 16. There hath been a great difference in opinions amongst our learned Lawyers and that according to the diversity of Species in the cases of Corn c. sowen by those who had Land in possession and not severed from the Soil For example Tenant in Dower sowes Corn and dies before Harvest She may devise the Corn though not yet ripe d Perk. 521. Stat. Merton c. 2. Flet. l. 2. c. 37. which is true also as to those Lands which she holds Joyntly or severally under the notion of Dower e Perk. 513. Fulb. 17. â—ural Devises 38. 17. But if contrary to custome she be endowed by the Guardian of the Heir and dying leaves Corn growing her Executors may be ejected by the Heir when he comes to age and hindered from gathering the profits f Perk. 524. So if the Heire coming of age recover Lands against his Mother or Widow of his Ancestor in a writ of Admeasurement of Dower he shall recover not only the Lands but the Corne also which is by him deviseable g Id. ib. 18. Tenant by the Courtesey leaseth forth his Lands and dyeth The Lessee shall reap his Corn and may if he dye before it be ripe devise it h Id. 514. which may also be done by a Parson of a Church as to his glebe Lands i 28. H. 8. c. 11. 19. So also he who hath Lands in right of his Wife his VVife dying after the Corne sowen may reap the benefit ar devise it k Perk. 518. Lit. l. 1. c. 8. which his Lessee also in case hee have leased out the said Lands may doe l Perk. 513. Fulb. par fol. 37. b. 20. Execution is taken upon a Mannor of the Debtors by vertue of a Statute Merchant The Creditor sowes the Land and before Harvest a Tenant of the said Mannor dyeth the Custody of whose Heir being under age satisfieth the Debt This will not hinder but that the Creditor may also devise the Corn not yet ripe or gathered m Ib. 516. 21. Mony is paid at the day upon a mortgage yet it seems the Creditor although some are of a contrary opinion may devise the Corn which he sowed and which as yet remains ungathered n Id. ib. 22. Tenant in Taile leaseth out his lands for life The Lessee sowes Corn the Heire recovers upon a Formedon in the Descender and dyeth before the Corn is gathered This Corn according to the opinion of some though others contradict it hee may devise by Will o Perk. 520. Fulb. fol. 37. b. 23. Tenant in Fee-simple dyeth and leaveth an only Daughter and a VVife with Child The Daughter enters and sowes the Land but before Harvest the VVife is delivered of a Son to whose use the next Kinsman possesseth himselfe of the Estate in this case the Daughter may devise the Corn. p Perk. 521. Fulb. fol. 38. a But we will put the case thus The Mother before the Sonne is born recovers Dower against the Daughter and hath that part assigned by the Sherifte which the Daughter sowed In this case she may devise the Corn yet it is a Quaere q Perk. ib. 24. Tenant for tearm of yeares commit waste upon which the Lessor recovers the Land In this case the Lessee cannot devise the Corn r Id. 515. Neither can he if another upon a more ancient Title recovers the said Land against the Lessor s Id. ib. 25. Lessee of a House for forty years deviseth the said House to A. without mentioning the Title which he hath or giveth The Question is what he deviseth And it is adjudged that the Testator deviseth that title which himselfe hath Viz. The term of forty yeares t Dyer fol. 307. n. 69. 26. Lessee for years be que at heth his Interest to A. the remainder of the years to B. in case A. dye before the term expired A. is in possession by vertue of the Devise and not long after Aliens his Right and dies before the terme expired The Question is what remedy B hath to recover his Right as to the remainder of the years unexpired And it was adjudged that he is without Remedy u Id. fol. 75. n. 18. f. 140. n. 41. But if the Testator had devised so many years of the Lease to A as A should live and had ordered B. to succeed in the residue In this case A. could not have so alienated the Term but that B. should have succeeded in the Remainder unexpired w Dyer fol. 358. n. 50 51. fo 359. n. 52. 27. Disseisee recovers against the Disseisor The Disseisee may devise the Corne sown but if it shall be severed from the ground the Disseisor may take it away or devise it x Perk. 519. yet he shall pay the Disseisee Damages y 6. Ed. 1. c. 1. 28. A Testator can neither devise Actions if they be not Judgments nor instruments of Actions z Brac. l. 2. c. 26. a. 28. n. 2. l. 5. tr 5. c. 10. n. 3. Fulb. fol. 30 31. but hee may that which is due upon Action Yet is this devise conditionall namely if the Debt be paid or recovered by the Executors a Perk. 527. 29. Our Law respects principally as doth the Civill Law and Reason likewise the will of the Testator b Cook l. 3. Bullers case fo 27. Fulb. fol. 46. Plow 343. if not contrary to Law If therefore a man having both a Sonne and Daughter living deviseth his Lands to his Daughter Although the Sonne be more worthy yet the Daughter shall have the Lands c New terms v. devise If he adds and annexeth a Condition to the devise which is neither impossible in Nature or Law this shall suspend the devise untill it be performed d Brit. c. 36. Perk. 570. Brac l. 2. c. 6. n. 1 2 3. Swinb part 4. Sect. 13. And this is so farre true that sometimes words are extended beyond their naturall intent e See the rest of his tit and sometimes for causes restrained f Fulb. 41. Plâ—w 540. by reason of the conjectured will and meaning of the Testator 30. A. deviseth Lands to B. conditionally that he pay so much money Although by force of words B. hath an Estate for life only yet the Law adjudgeth him to have a Fee-simple g Brac. Test 18. Perk. 555. for otherwise if B. should dye in a short time He might receive more prejudice then profit by the Devise 31. A. deviseth all his Lands and Tenements to B. B. shall not only have all the Lands and Tenements which A. had in possession but the Reversion likewise h Termes v. Devises 32. If Lands be bequeathed to One to have any to hold to him for ever Or to have and to hold for him and his Assigns for ever In both Cases the Devisee hath an Estate in Fee-simple
i Id. 156. some prohibite and keep within compasse those Judges who stretch their Jurisdictions too farr k Id. 39. some remove causes from one place to another l Id. 70. 69. Lastly some informe and commence processe m Regist Origin and others prosecute and bring to an end those which are begun n Reg. Judiciale now those which begin processe are called originall Writs and those which promote and end processe begun iudiciall o Regist Brev. 1. All Actions flow either from the common Law or from Statutes p Bro. Action populer Sur le Statut. but from which soever they flow they are all either against the person or the Estate or both q Brac. l. 2. c. 3. n. 234. 2. Personall Actions are those which arise against any one from a Contract reall or imputed or from a crime reall and proper or imputed Now those Writs which are Issued forth in either case upon Contracts are for the most part these A Writ of Covenant r F. N. B. fo 145. of Account s Id. 116. of Debt t Id. 119. of Detinue u Id. 138. of Trespasse w Id. 92. upon the case in which the assumption is contained x Bro. Acton Sur le case 24. 3. Those which are issued out in either case as touching Crimes are those of Trespasse y F. N. B. 85. Deceit z Id. 95. breaking of a Park a Id. 100. or Inclosure Rescous b Id. 105. Attaint c Id. 105. Conspiracy d Id. 114. Champerty e Id. 171. 4. Reall Actions are those who are maintainable against any one not obliged to us by any Right because our estate corporall or incorporall which is immoveable is possest by him or as it were in his possession which he may either restore or name the party in whose name he possesseth it as if one demands of any one a thing certain viz. a Fee Lands an Advowson pretending ones self owner of it and sues not for the value or so much in the same kind but the same specificall thing and for this that the demandant supposeth the thing his and brings his Action against the Tenant who denies it the Action or Plea shall be against the thing it self f Brac. l. 3. tr 1. c. 3. n. 3. 5. If the thing sued for be a moveabe as an Ox an Asse a Garment or something consisting either in weight or measure although the Action or Plea at first seems to be as well against the thing as the person because a certain thing is sued for and for that he who possesseth it is bound to restitution yet in truth the Action is against the person because the party sued is not precisely bound to restore the specificall thing but under a disiunction either the thing or its value and he is freed by paying the value onely whether the thing be to be had or not and therefore if any one claim a thing moveable taken away upon any occasion or lent he ought in his Action to ascertain a value otherwise it is of no force nor signifieth any thing g Brac. l. 3. tr 1. c. 4. n. 4. Fleta l. 2. c. 60. 6. Now of Actions civill and for a particular thing as the claim of a particular thing some are confessory and some negative confessory as where one affirms a corporall or incorporall thing to be his as a Fee also where he affirms himself to have a Right of going through his neighbours Fee or of drawing water even whether his neighbour will or not and it is therefore stiled an Action for a particular thing because he requires his particular incorporall thing viz. his Right of a way through a Fee and confessory because it is by words of affirmation But an Action negative is that which the Lord or owner of a Fee brings against one who is accustomed to have a way through his Fee denying that he hath any such Right and this Action is said to be for a particular thing Because by it the Lord of the Fee doth by it claim his Liberty and these kind of Actions are not for the Dominion or property of a thing but onely touching the Right of Estates h Brac. ib. n. 7. Flet. l. 5. c. 37. 38 39 40. 7. We have also something paralel to that which was anciently called Actio Rescissorla for if any one be dispossest of his Estate being in durance and the Lands descend to the Heir of the Disseisor the Disseisee hath liberty to recover his possession by his own proper Act or as we term it to re-enter and if Judgement be given against him he may reverse it afterwards by a Writ of Error because his absence was not through contempt but by reason of Durance and imprisonment and therefore it seems contrary to reason that he should be prejudiced by any such Record and there is the same law for those who are in the Kings service or who are beyond the Seas in any businesse which concerns the Common wealth and are in the mean time disscised being unable to make their continuall claim nay there are some who affirm that he who is beyond Seas about i Litt. l. 3 c. continuall claim his own businesse if he be disseised may upon his return upon his own authority reenter upon the Heir of the Disseisor without bringing his Assise k id ibid. 8. And there is somthing likewise which answers to that same Actio Pauliana and which is afforded by a particular act of Parliament l 13 Eliz. c. 5. which renders all manner of alienations of Lands and Goods made by the Debtor to defraud the Creditor void and of none effect and moreover inflicts a penalty upon all those who are guilty of it and who defend it as lawfull 9. Nor do we want that which equalls the ancient Actio Serviana for the Lestor may of proper Right distrain upon goods which are brought upon his Fee and detain them untill his Rent be satisfied because we also do tacitely esteem these in the nature of Gages or Pledges although this be not without Distinction m Bro. Distresse 13. 57. 99. To this also may be added that Actio hypâ—thecaria quasi Serviana for if any one receive monies borrowed of another under a Pledge or Pawn and cannot afterwards receive his pawn upon tender of the monies the Creditor refusing to redeliver it the Debtor may in this Case have his Action n F. n. b. 86. G. and he is said to sue upon an Action quasi Serviana who being seised of Lands as by way Mortgage is disseised or elected out of them 10. Now writs which are proper to reall Actions are either to recover a property or a possession o Flet. l. 6. c. 1. those which appertain to a property are writs of Right which are of divers kinds p F. n. b. 1. 6. 11.
non-appearance they are out-law'd z Lambert but if they be apprehended they are in some cases committed to prison without any hope of being released untill Judgment past a 1. West c. 15. 23. H. 6. c. 10. 1 2. Phil. and Mar. Lambert l. 3. c. 2. pa. 334 but if it be only for a sleight suspition of Felony or for Petite Larceny the Sheriff may take Baile for appearance and is compellable upon his refusall b V. F. n. b. fo 41 9. If the Offence be not capitall the Sheriff is commanded to cause the Defendant to appear at a certain day to answer certain Articles and if he come not the Sheriff is to make his return and certefy the Justices whether the party have sufficient Goods and Chattells or whether he have nothing For if he have his Goods are to be distrained till he come if not then Process issueth forth untill he be out-law'd c Lamb. in supplement process 10. There are other particuler waies of proceeding in causes criminall expresly appointed in particuler cases which are to be collected out of such Statutes wherein they are injoyned are prescribed d Lamb. l. 4. c. 8. p. 505. 11 There are also certain cases in which the Plaintiff upon his own Authority seiseth the Goods of the Defendant and requires him to come to make an extrajudiciall satisfaction or at least to come to Judgment As for Rent which is due either as a Service e Dr. Stu. l. 1. c. 7. V. F. n. b. fo 42. or as charged f Lit. l. 2. c. Release upon the Lands Of Perpetuall and Temporall Actions which discend to Heirs and against Heires TIT. XII OF Actions there are some which are perpetuall and some which cease at a certain time for although Bracton asfirmes a l 3. tr 1. c. 3. n. 5. almost all Actions to be temporall for want of sufficient proofe yet this hapneth not so much from the nature of the Actions as from the difficulty of proofe 1. I call those perpetuall which cease only tacitely through continuall forbearance and which have not any set time expresly allotted for their continuance Of the second sort there are many which arise both from the common Law and Statutes For these if they be not prosecuted within the time limited do cease and fall For example the Owner of a Park hath an Action against any one that hunts in his Park if he sue within a year and a day but if he let that time passe the King only may prosecute the Action b b I Westm c. 20. 2. But there are some which are so perpetuall that no process of time can extinguish them As those which by the Law of Nations are inherent in the Crown by reason of the Kings Priviledg and Prerogative As of things which have no Owners Also of Things Liberties and Dignities which appertain to the Kings Crown and in which cases no time occurs against him if he require them Where he hath no need of proofe but may recover without proofe unlesse the party impleaded may have a Warrant i. e. a speciall liberty granted by the King because he makes no defence from prescription c Bract. l. 3. tr 1. c. 3. n. 5. 3. There are also some so purely temporall that when the person dieth they neither discend to his Heires or Executors nor do they lye against Heires or Executors As those which are penall for a Penalty ought not to be extended to any other then the Authors nor to proceed further then the crime extends it self d Id. c. 2. n. 5. l. 4. tr 1 c. 20. n. 11. Dr. Stu. l. 2. c. 10. 4. Nor can Heires or Executors sue or be impleaded from Covenants in writing unlesse there be particuler mention made of them in the Instruments of Covenants Now what Actions are temporall from the Statutes of the Common-Wealth we have shewn before e Lit. uses Prescriptions Of Pleas and Exceptions TIT. XIII HItherto we have spoken of Actions it remaines that we speak something of Pleas for Pleas are in the place of Actions and in respect of Actions are tearmed Pleas or exceptions in regard that one impugns the other and as those who so are armed with Actions are prepared as it were with Swords so the Defendants on the other side are guarded with Pleas as with sheilds and bucklers a Brac. l. 5. tr 5. c. 17. Fleta l. 1. c. 32. 1. Now an Exception or Plea is as it were the cutting asunder of an Action by which an Action is destroyed and defeated b Id. ib. c. 1. Fl. l. 6. c. 36. 2. An Action is taken away by the Plea of Per metum dolum as if one pleads such an Obligation to have been extorted from him Per metum dolum c Id. l. 3. tr 1. c. 2. n. 13. Brit. c. 28. fo 66. so also by reason of not counting or telling Money As if a man promise Money to another from whom he expects to have the same in a small time counted to him he may have this Plea against him afterwards when he shall demand it yet it seems that this Plea wil not prejudice an obligation in writing d Brac. l 3. tr 1. c. 2 n. 9. unlesse the Defendant can also shew an Acquittance in writing e New tearmes Acquittance also by Contract as if one first covenant that he may demand and then that he may not demand f Brac. ib. or if one doth make satisfaction and recompenceth any way a trespass committed by him and so takes away the cause of Action g New tearmes Record so also by an oath according to our ancient writers viz. When an Oath shall be brought or related and afterwards â—worn h Brac. ib. and lastly by pleading a former â—udgment as if the Ancestor of the Plaintiff â—r any of his Heires lost the thing in Action â—y a Judgment in case of property as by a Grand Assise or by Battaile or by verdict of 〈◊〉 Jury upon whom they had put themselves i Id. l. 5. tr 5. c. 28. n. 7. 3. Of Pleas some are dilatory and some Peremptory k Brit. c. 29. Termes v. Barr Flet. l. 2 c. 54. and l. 6. c. 36. and of those which are dilaâ—ory some are Peremptory as to the Jurisdistion and dilatory as to the Action and not peremptory And in like manner some are peremptory as to the Writ and dilatory as to the Action l Termes v. Addition Flet. l. 4. c. 10. Sect. 1 2. and l. 6. c. 36. some Pleas also are generall as to all Actions and some speciall which are allowed only to particuler Actions For â—ll Actions have their proper Pleas according to the form of the Actions m Brac. l. 5. tr 5. c. 1. in the beginning 4. And there is a kinde of Plea which we â—all a waging of Law and
Stu. l. 2. c. 84. Stamf. pleas l. 2. c. 63. But in case of an Appeale hee may make use of others for his defence And if he be so poor that through want he is not able to procure Counsell the Judg ought upon his request to assigne him a Patron to plead for him k Dr. Stu. ib. 5. As for the summe in which any one supposeth himselfe to be prejudiced by reason of a Trespasse committed against him the Justices doe proportion it either by the verdict of a Jury or by vertue of their own Office l Brac. l. 3. tr 1. c. 1. For they doe after that the costs are taxed by a Jury augment them upon cause shown 6. If the Jurors being sworn upon their going together cannot agree upon their verdict so that there be any danger that they may perish through hunger because the Common Law prohibits them from eating and drinking without the Judges leave untill they are agreed together upon their verdict when any such danger appears The Judge may permit them to eate and drink and remit them againe to consult And if at length they can by no means agree he may having amerced them discharge them and appoint others in their stead m Dr. Stu. l 2. c. 52. 7. We have before mentioned and declared that that Action which was called Noxâ—lis Actio is wholly unknown to us n Tit. 8. of this Book Since therefore there is no Judge to appeal to in this case wee need not trouble ourselves with Observation concerning it 8. If in a reall Action Judgement shalâ—… passe for the Tenant the Demandant shalâ—… only be adjudged to pay costs of Suit But iâ—… it passe for the Demandant the Judge shalâ—… condemn him to pay Damages and costs oâ—… Suit and shall command the Sheriffe o Scire facias F. n. b. in the Index throughout and in the Register or in case it touch any Benefice then the Ordinary p F. N. B. 38. to put the Demandant into possession which the Sheriffe is bound to doe without delay And this is true whether the Demandant sue as Heire or otherwise and whether the Tenant were an Intruder or not For if he be a Disseisor or forceable Intruder he is worthy rather of punishment then favour but if he be not then the Jury lay little or no Damages upon him q Brac. l. 3. tr 1. c. 3. 5. 9. An Action is chiefly in case of Moveables but as concerning Moveables wee never sue for them in Specie as I said before but only propose the value And having proved the thing in Action to be Ours and the value so much wee recover either the thing it selfe or the value I doe not finde that the Defendant can be compelled by our Law to restore the thing in Action Yet in the case of Lands or an incorporeall Right the Demandant or Tenant may require the view of the thing if it be out of necessity and not to protract In which case the Judg commands the Sheriffe That at a day assiigned he cause a view to be taken by such Viewers or Surveyers as may certifie the Court at another day touching the quantity 10. That which the Romans called Judicium familiae eriscundae wee term Partition of an Inheritance But whereas they divided as wel Moveables as Immovables among Heirs we only make partition of Immoveables amongst those whom either the Common Law or the Custome of any place intitles to an equall part of an Inheritance r Lit. l. 3. c. 1 2. Now this partition is made either by the consent of the Heirs or by the Authority of the Magistrate That which is by consent may either be so made that the Estate being divided into equall parts the Eldest shall have the first choise and so the rest in their order or else by Lots s Id. ib. Terms of the Law v. Partition The forme of that which is by the authority of the Magistrate we find described at large by Bracton and Littleton t Brac. l. 2. c. 33 34. Lit. ib. In which this is lastly to be observed That whatsoever is assigned to one in one place over and above their due shall be recompenced to the other in another place u Brac. c. 33. n. 8. 11. Those who hold joyntly whether they be Joynt-tenants or Tenants in Common cannot be forced by the common Law to make Partition yet this is changed by an Act of Parliament w 31. H. 8. c. 1 32 H. 8. c. 32. wherefore at this day if Partition be made amongst these the same rules are to be observed which we mentioned in case of Co-heirs x See this title Sect. 9. 12. Where either or any of those whose Fees or Villiages border upon each other desire to make distinctions of their bounds they may have a Writ directed to the Sheriffe that hee shall determine and bound their limits equally By the assistance of a Jury of 12. men the most discreet of the Vicinage sworn for this purpose y F. n. b. fol. 134. which Partition he shall certifie under his own Seal the Seales of foure Knights who were present at the businesse at a certain day assigned And if either be unwilling to have their bounds limited as being the party who happily doth commit the Injury the other may obtain a Writ directed to the Sheriffe to require him to set equall bounds and limits z Terms of the law v. perambulation F. n. b. fol. 128. 13. Now whatsoever shall be adjudged by the Supream power or the Justices upon such certificate to each that shall immediately become theirs to whom it is adjudged a Lit. l. 3. c. 1 Of publique Judgements TIT. XVIII AS for those punishments which are inflicted upon Malefactors some extend to the losse of life some of a Member others of City Burrough or Province some to perpetuall banishment or for a time some to the restraining the body as by perpetual imprisonment or imprisonment for a time some to beating whipping or the Pillory Some also to the losse of Dignity and Order or to a privation or prohibition of any thing a Brac. l. 3. tr 1. c. 6. Flet. l. 1. c. 16. 1. Amongst these that is reckoned cheif in regard of its Heinousnesse b Coo. l. 4. Beverleys case 124. which wee call Treason Now Treason c Flet. l. 1. c. 21. is either High or Petite High Treason is that which the Romans called Laesa majestas and this before the alteration of our Government was dierse wayes committed as by killing or imagining the Death of the King the Queen or their Sonne and Heir apparant By ravishing d Spec. Just l. 1. c. del peche de majeste the Wife or eldest Daughter of the King if she were unmarried or the wife of the Kings Sonne and Heir apparant By taking up Armes against the King within his Kingdome e Dyer