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.
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
says It has been resolved that a Wife cannot be produced either for or against her Husband quia sunt duae animae in carne unâ and it might be a cause of implacable Discord between them and a mean of great inconvenience Yet it was resolved in the Lord Audley's Case Hut Rep. 116. that altho' in the Case of a Common Person between Party and Party the Wife cannot be produced as a Witness against her Husband yet between the King and the Party upon Indictment she may altho ' it concerns the Feme herself as in that Case the Lady Audley gave Evidence against my Lord who was accessary to her Rape and was thereof found guilty Husband swears for his Wife's Debt DEBT against Baron and Feme for certain Barrels of Beer sold to her dum sola c. they both waged their Law and did both swear according to the form of the Oath quod nota That the Husband swore for his Wife's Debt Cro. Eliz. 161. Weeks and Holms See 1 Inst 172. b. acc ' that the Husband and Wife of full age shall make their Law for the Debt of the Wife before the Coverture Whether a Wife shall be examined upon a common Recovery SEE 1 Siderf 322. in Fine where the Reporter saies Quaere How a Wife can be barred unless by Fine because she is not examined upon a common Recovery Yet vide the same Rep. fol. 11. that she shall be privately examined when she suffers a Common Recovery as well as where she levies a Fine by Bridgman Chief Justice tho' she was there permitted to do it without such examination And 1 Roll. 347 is That if Baron and Feme suffer a Recovery it shall bind her because she is examined in it And Co. 11. 77. a. if a Feme Covert make any Conveyance unless by Fine or Recovery it is avoidable yet fol. 78. a. it is said That the Person of a Feme Covert is dissabled to convey her Land unless by Fine upon due examination Vide Stiles 320. by Roll. Chief Justice It is not to be questioned whether a Recovery bind a Feme for it is the common Practise and 't is not necessary to examine her tho' it be a prudential thing to do it but if it be not done it is not averrable that it was not done Man and Wife but one A WRIT of Conspiracy for endicting one of Felony does not lie but against two Persons at the least therefore you shall not have such a Writ against Husband and Wife because they are but one Person and one only cannot be said to conspire with himself F. N. B. 116. K. Payment IN Debt the Condition was to pay 100 l. to I. S. and his Wife per Curiam if the Defendant plead payment to I. S. alone it is good for payment to him suffices without naming the Wife Goldsb 73. May and Johnson Note If one is obliged to pay Money to two actually he can pay it only to one of 'em for he cannot pay the same summ to two several Persons at one and the same time 2 Siderf 41. Priviledge IF the Wife of an Attorney of the King's-Bench be arrested she ought not to claim the Priviledge of that Court not to put in bail to the Action as her Husband may but he must put in bail for her and for want thereof she shall go to Prison Stiles Pract. Reg. 446. Slander of a Justice of Peace ONE said of a Justice of Peace He is a Logger-headed and a Slouch-headed Bursenbellied Honnd this is no cause of Indictment before Justices of Peace in their Sessions partly for want of Jurisdiction and partly because the Words are not Actionable This was assigned for Error after Judgment Adjornatur 1 Keb. 629. Pictures and Hangings A PICTUE nailed through the Frame to the Wall is fixed to the Freehold and cannot he removed by Twisden But note such things as use not ordinarily to be so fixed tho' they are nailed yet may be removed as Hangings c. Contrary of a painted Cloth nailed round by Hales and Rainsford 3 Keb. 74. Simony without the Privity of the Incumbent or Patron THE Father of the Incumbent contracted with the Patron 's Wife to give her 100 l. if the Patron would present his Son the Patron and Incumbent not knowing of this Contract as it was found by special Verdict yet held within the purview of the Stat. 31 Eliz. So note Simony may be by compact betwixt Strangers without the Privity of the Incumbent or Patron Cited Cro. Car. 331. to have been adjudged in Calver's Case An Incumbent being sick the Father contracted for the next Avoidance for 100 l. in the presence of his Son and after the Incumbent died the Father presented his Son who was Inducted and agreed clearly to be Simony but all the Judges except Anderson held That if the Son had not been privy to the bargain it had not been Simony yet they agreed If a Stranger buy the next Avoidance and present one that is not privy 'till afterwards and after is made privy and then presented that this is Simony Not so where the Father buys because bound in nature to provide for his Son Q. of the difference Moor 916. Smith and Sherborn's Case Vid. Noy 22. Hob. 165. Extinguishment LESSEE for Ten Years grants a Rent-charge to his Lessor for the said Years the Lessor grants the Remainder to the Lessee for Years The Court held that the Rent was gone because the Lessor who had it was Party to the destruction of the Lease which is the ground of the Rent 4 Leon. 2. Buckhurst's Case Lease A MAN made a Lease for Years by Indenture reserving a Rent and in the Counterpart of the Lessor 27 l. was reserved in the Counterpart of the Lessee but 26 l. afterward a Controversie arose between them what Rent should be paid the Lessor would have 27 l. the Lessee would pay but 26 l. but after was content to pay 27 l. and so agreed with the Lessor and drew a Stroke in his Indenture and made it 27 l. this made his Lease void 2 Roll. 29. Facman's Case Simony tho' no Admission nor Institution ONE was Simonaically promoted to a Benefice but this was Anno 1659 when there were no Bishops and so there was no Admission nor Institution and therefore moved he could not be guilty of Simony within the Statute This was offered to be found specially but dissallowed by the Court for by this Argument none could be guilty of Simony in the late times because no Bishops to admit and institute which would be inconvenient 1 Siderf 221. Snow and Phillips Advowson A MAN presents to his own Church as Proctor to another by this he loses his Advowson So if Lessee for Years of an Advowson be presented to the Church 't is an Extinguishment of the Term. Owen 142. Rudd and Topsey's Case Property changed by Offerings IN the time of Popery here if a Stranger had taken my Goods and offered