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
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.
Ship-board at Lisbon in great heat of Speech with one Captain Bask and added Because he is an Heretick and because his Traiterous Intent and the Imagination of his Heart is declared by these Words it was held High Treason by the Common Law and within the express Words of 25 Edw. III. and he being arrested by Warrant for this cause most insolently put his Finger into his Mouth and scornfully pulling it out said I care not this for your King c. He was found guilty and had Judgment accordingly He confessed he was a Dominican Frier and made Priest in Spain and altho' this and his returning into England to seduce the Liege People be Treason by Stat. 23 Eliz. yet the King's Attorney said he would not proceed against him for that but upon 25 Edw. 3. of Treason Cro Car. 332 333. See Cro. Car. 125. that no Words are Treasonable unless made so by some Statute and 3 Inst 14. Whether 't is a Nuisance for a Rope-dancer to erect a Stage c. JACOB Hall the famous Rope-dancer had erected a Stage in Lincoln's Inn-Fields but upon a Petition of the Inhabitants there was an Inhibition from Whitehal Now upon complaint to the Judges that he had erected one at Charing-Cross he was sent for into Court and the Chief Justice told him he understood it was a Nuisance to the Parish and some of the Inhabitants being in Court said it occasioned Broils and Fightings and drew so many Rogues to that Place that they lost Things out of their Shops every Afternoon Hales said that in 8 Car. I. Noy prayed a Writ to prohibit a Bowling-Ally erected near St. Dunstan's Church and had it Modern Rep. 76. Post Information for keeping a Cock-pit ONE Howel being Convicted of keeping a common Cock-pit six Days was fined 12 l. the Court conceiving it an unlawful Game and took their Measures by 33 H. VIII c. 9. of 40 s. a Day tho' the Information were at Common Law 3 Keb. 465. and 510. Forfeiture of a Copyhold A. LORD of a Mannor holding of his Court and B. a Tenant being in the Court there arising a Question whether the Court were then legally held B. was asked if he appeared or not he answered If it be a legal Court I do appear but if it is not a legal Court I do not appear Quaere if this be an appearance or such a refusal to appear whereby the Copy-holder shall forfeit his Copy-hold or not Roll Chief Justice said if there was a real Controversie whether the Court was well held or not it would be hard to make it a Forfeiture but if not and that the Words were used only as a Shift to avoid his Suit and service it is a Forfeiture for the Words are like Jack in a Box and no body knows what to make of 'em the other Three Judges inclined it was no forfeiture Stiles 241. Parker and Cook Rope-dancing Ante. THE Court being informed that Jacob Hall was building a Booth for dancing on the Ropes at C. sent for him and the Workmen by a Tipstaff and because he would not enter into a Recognizance not to build on they committed him and then he ceased 2 Keb. 846. Replevin of Goods not destreined REPLEVIN is the bringing of the Writ De Replegiari facias by one whose Cattle or Goods are distreined c. and putting in Surety to the Sheriff that upon delivery of the Distress he will prosecute the Action against the Distreinor Yet Note In a special Case a Man may have a Replevin of Goods not destreined as if there be Lord Mesne and Tenant and the Mesne put in his Cattle in lieu of the Cattle of the Tenant paravaile whom he is bound to acquit he shall have a Replevin of those Cattle yet they never were distreined 1 Inst 145. b. Replevin lies notwithstanding a grant to keep the Distress against Gages and Pledges IF a Rent be granted with clause of Distress and further that the Grantee shall keep the Goods distreined against Gages and Pledges 'till the Rent be paid yet shall the Sheriff replevy the Goods for 't is against the nature of such a Distress to be irreplevisable and by such an intention the Currant of Replevins should be overthrown to the hinderance of the Commonwealth and so 't was dissallowed by the whole Court and awarded that the Defendant should gage deliverance or else go to Prison which the Lord Coke saies in his opinion is an excellent point of learning 1 Inst 145. b. Witches THE Law against Witches does not prove there be any but it punishes the Malice of those People that use such means to take away Mens Lives If one should profess that by turning his Hat thrice and crying Buz he could take away a Man's Life tho' in truth he could do no such thing yet this were a just Law made that whosoever should turn his Hat thrice and cry Buz with an intention to take away a Man's Life shall be put to death Selden Note To say of one Thou art a Witch is not Actionable because he may bewitch you with his fair Countenance or fine Discourse 2 Cro. 150. and 306. contra because it brings him within danger of the Stat. 1 Jac. which makes every witchcraft Felony but to say Thou art a Witch and deservest to be hanged will bear Action because the last Words explain what manner of Witch he intends So to say Thou art a Witch and hast bewitched my Mother's Milk Drink Hogs c. So it seems of Children But to say and hast bewitched I. S. Quaere because I. S. may be captivated with the amiableness of the Plaintiff's Person So Note the difference between saying he has bewitched a thing which has sense and a thing which has not 1 Siderfin 52. 53. Trespassor ab initio A MAN comes into a Tavern and will needs stay up all Night the Vintner is not bound in such Case to watch with him nor attend upon him all the Night and therefore if he prays him to be gone and he will not but remains there all Night he is a Trespassor ab initio 11 H. IV. 75. b. Note He that misuses an Authority which the Law gives him as in that Case so if one distrein for Rent and kill the Distress shall be a Wrong-doer ab initio Otherwise if he abuse an Authority that another gives him as if I lend my Horse to I. S to ride to York and he ride farther yet the riding to York shall not be unlawful Vid. Co. 8. 146. Perk. fo 39. 40. 2 Roll. 561 c. in Abridgement Quaere if a Distress be taken for a Rent-charge and is misused whether the Destrainor shall be a Trespassor ab initio because the Authority to distrain comes from the Party Justice Hutton's Case MR. Justice Hutton having argued in the Exchequer Chamber in a Case adjourned thither upon a Scire facias by the King against Hampden for Ship-money wherein he was of opinion That as well