testimony as strong as that of another Witness Glyn. Ch. J. answered that in his opinion the Dr. had taken as strong an Oath as any of the other Witnesses but that for his own part if himself were to be sworn he would according to the accustomed way lay his Right hand upon the Book The same Answer which he gave before to another Jury 2 Siderf 6. Jews sworn upon the old Testament only ON Evidence to a Jury the Witnesses produced were Jews and sworn upon the Old Testament only Per Cur. a good Oath by 5 Eliz. c. 9. to make Perjury And within the general Words of S. Evangelia so of the Common Prayer-Book that hath the Epistles and Gospels Contra by Windham of a Psalm-Book only 2 Keb. 314. Murder of a Child in the Womb. ONE beats a Woman great with Child and after the Child is born alive with Signs and Bruises in his Body of the said battery and after dies thereof Fenner and Popham held it to be Murder for the difference is where the Child is born Dead and where Alive in the first Case it is not Murder because Non constat whether the Child were living at the time of the Battery or not or if the beating were the cause of it's Death but when it is born Alive and the Wounds appear in his Body and then dies the Batteror shall be arraigned of Murder for now it may be proved whether these Wounds were the cause of the Death or not and therefore if it be found he shall be condemned Goldsb Rep. 176. If a Woman quick with Child take a Potion to kill it and accordingly it is destroyed without being born alive this is a great Misprision but no Felony but if born alive and after dies of that Potion it is Murder Dalt c. 93. Hales tit Felonies Nemo tenetur prodere seipsum A MAN was sued for Incontinency in the Spiritual Court and the Judges there would have him answer upon his Oath if he ever had Carnal Knowledge of such a Woman upon which he prayed a Prohibition and 't was granted for no one is obliged to betray himself in such cases of Defamation but only in causes Testamentary and Matrimonial where no discredit can be to the Party by his Oath Cro. Eliz. 201. Moor 906. 4 Leon. 194. Cullier's Case Dr. Hunt was indicted that being Commissary to the Arch-Deacon of Norwich he caused I. S. to be Summoned before him to compel him to take an Oath concerning Incontinency which touched himself It being referred to the Chief Justices and Chief Baron they certified That where the Knowledge of the matter did belong to the Court Christian they may proceed according to the Civil Law Note the King's Bench was of opinion in this case that the Oath cannot be ministred to the Party but where the Offence is first presented by Two Men. Cro. Eliz. 262. If a Woman be Sued in the Eccl siastical Court upon a Contract of Marriage and enters into Bond to the Court with condition not to Marry or live in Fornication with any one pendente lite she cannot afterwards be examined there upon her Oath whether she be a single Woman for that tends to the Forfeiture of the Obligation 2 Roll. 305. Clifford and Huntley Bastardy IF Husband and Wife continue Man and Wife their whole Lives their Issue cannot be Bastarded by a Divorce after their Death for the Divorce in the Spiritual Court est pro peccatis which cannot be after they are Dead and therefore such Divorce there is only to disinherit the Issue which they cannot do 39 E. 3. 31. b. 32. for by such means any one may be disinherited 31 Ass Pl. 10. Bastardy IF the Wife of an Infant under Fourteen Years has Issue it is a Bastard Noy's Rep. 142. 1 Roll. 359. 1 H. VI. 3. b. If a Wife elope and live in Adultery with another and has Issue yet by our Law the Child is legitimate agreed per Cur. in Edgerton's Case 1 Roll. 358. but the Husband must be within the Four Seas so as by Intendment he may come to her otherwise such Issue is a Bastard But vide 40 E. 16. 3 b. contra If a Feme Covert goes into another County and takes Husband and has Issue by him the first Husband being within the Seas the Issue is legitimate 7 H. IV. 9. b. A Married Man takes another Woman to Wife his Issue by her is Bastard by Common and Civil Law for the second Marriage is void Co. 7. 44. If there be an unlawful Marriage as between Brother and Sister and they have Issue and one of 'em dies before any Divorce had between them the Issue cannot now be Bastarded see Co. 7. 42. Kenn's Case 1 Brownl 42. and 2. Roll. 357. Upon a Motion to stay an Information brought against the Prosecutors of one Brown for a Bastard Justice Twisden said that the Stat. 18 Eliz. cap. 3. shall be taken by equity and that although Bastards are intended Children Born yet the Justices may take security of such as are Big or of reputed Fathers during that time lest they be gone before the Child is born Curia accord ' sed adjornatur Lamb. I. P. 119. 3 Keb. 708. If a Man has Issue by a Woman and after Marries her by our Law the Child is a Bastard yet note such issue shall be called their Child in Law for a Remainder limited to it by that name is good Co. 6. 65. If a Man Marry his Cousin within the degrees the Issue between them is not Bastard until Divorce had for the Marriage is not void as it is where a Husband takes a second Wife living the first and has Issue by her it is a Bastard because the second Marriage is void An Ideot à nativitate may consent to Marry and his Issue shall be legitimate Stile and West 1 Roll. 357. Fine Lease confirmed before it is made yet good A BISHOP made a Lease for Years the second day of May and the Dean and Chapter confirmed it the first of May Catlyne and Southcote held it a good Lease after the Bishop's Death Wray demanded How a Lease could be confirmed before it was made the others answered That the Assent before is a good Confirmation after Owen 33. Vide 2 Roll. 26. Number 30. that if a Parson grant an Annuity and the Patron seals and delivers a Deed of Confirmation before the Grant and after the Grant delivers the Deed again this second Delivery is void for altho' by the first Delivery it took not effect as a Confirmation but was void in operation quod nota yet it was his Deed for he could not plead Non est factum See 8 H. VI. 6. b. and 39 H. 6. 37. b. contra Where the Lord shall have the Land against his own Confirmation LORD and Tenant of a Carve of Land the Tenant has Issue and is attainted of Felony and the King pardons him and after the Lord confirms his Estate and the
181. Writ Page 19. Common Law BEfore I come to particular Cases it may not be impertinent I hope to consider a little what is meant by these Words the Common Law perhaps not so commonly understood as imagined since I find the Learned themselves differ about them and first let us see what is said in Doctor and Student Lib. 2. cap. 2. there you may observe that by the Common Law is understood such things as were Law before any Statute made in that point that is in question so as that point was holden for Law by the general or particular Customs and Maxims of the Realm or by the Law of Reason and the Law of God no other Law added to them by Statute or otherwise For Instance It is said that at the Common Law Tenant by the Curtesie and Tenant in Dower were punishable for Waste i. e. that before any Statute of Waste made they should be punished for it by the Grounds and Maxims of the Law used before the Statute made in that point But Tenant for Life or Years were not punishable by the said Grounds and Maxims 'till remedy was given against them by Statute and therefore 't is said that at the Common Law they were not punishable for Waste Glanvil and Bracton affirm that the Law of England was Jus non scriptum in their times And Sir John Davies says in the Preface to his Reports that our Ancient Reports of the Law are but Comments or Interpretations upon the Text of the Common Law which Text says he was never originally written but hath ever been preserved in the memory of Men tho' no Man's memory can reach to the Original of it for goes he on the Common Law of England is nothing else but the Common Custom of the Realm and a Custom which hath obtained the force of a Law is always said to be Jus non scriptum for it cannot be made or created either by Charter or by Parliament which are Acts reduced to Writing and are always matter of Record but being only matter of Fact and consisting in use and practice it can be Recorded and Registred no where but in the memory of the People for a Custom takes beginning and grows to perfection thus when a reasonable Act once done is found to be good and beneficial to the People and agreeable to their nature and disposition then do they use it and practice it again and again and so by frequent iteration and multiplication of the Act it becomes a Custom and being continued without interruption time out of mind it obtains the force of a Law So far Sir John Davies But sure what the Lord Vaughan lays down fol. 163. is very consonant to Reason that in truth most of the Common Law cannot be conceived to be Law otherwise than by Acts of Parliament or Power equivalent to them whereof the Rolls are lost for always there was a Power and Practice of making new Laws And again fol. 358. Many things are said to be prohibited by the Common Law and indeed most things so prohibited were primarily forbidden by Parliament or by a Power equivalent to it in making Laws which is the same but are said to be prohibited by the Common Law because the original of the Constitution or Prohibiting Law is not to be found of Record but is beyond memory and the Law known only from practical proceeding and usage in Courts of Justice as may appear by many Laws made in the time of the Saxon Kings of William the First and Henry the First yet extant in History which are now received as Common Law So if by accident the Records of all Acts of Parliament now extant none of which is elder than 9 H. III. but new Laws were as frequent before as since should be destroyed by Fire or other Casualty the Memorials of Proceeding upon them found by the Records in Judicial Proceeding would upon like reason be accounted Common Law by Posterity A DOCTOR in PHYSICK Eminent for the CURE of all sorts of VENEREAL SCORBUTICK and DROPSICAL PERSONS still lives in Great Knight riders Street nigh DOCTORS-COMMONS and of whom any Person may have Advice and a perfect CURE let his or her Disease be of the longest Date and with the worst of SYMPTOMS His HOUSE is known by a BLUE BALL over the DOOR THE Young Lawyer 's RECREATION Marriage A MAN contracts with a Woman to Marry her and after Marries another Woman and the first Sues him in the Spiritual Court and by Sentence there his Marriage with the Second is adjudged void and that He and the first Woman are Man and Wife Noy was of Opinion as Serjeant Windham said that by this Sentence the Man and first Woman were complete Baron and Feme without any other Solemnity But this was denied by Justice Twisden who said the Marriage must be Solemnized before they can be Man and Wife 1 Siderf 13. Sir Robert Pain 's Case So Note The Spiritual Court may unmarry i. dissolve a Marriage but they cannot Marry by such Sentence for Matrimony is not accounted consummate by our Law untill it be celebrated in facie Ecclesiae or c. by one in Sacred Orders according to the Form in the Book of Common Prayer Two were Married by a Parson in Holy Orders during the time of the Act against Marriages by them and which enabled Justices of Peace to Marry The Justices of Peace upon Petition dissolved this Marriage but the whole Court now was of opinion That the Marriage being once lawfully Solemnized and without Impediment the whole World could not dissolve it being by one in Sacred Orders tho' at an Ale-house and at Twelve of the Clock in the Night 1 Siderf 64. Tarry and Brown's Case Whether an Ideot may contract Matrimony THO' it be generally said That the Contracts of Ideots are void because such are natural Fools yet it was adjudged Trin. 3. Jac. B. R. in the Case of Stiles and West that an Ideot may consent to Marriage and his Issue shall be Legitimate Shep. Gr. Abr. tit Ideot 1 Siderf 112. and by my Lord Coke the Wife of an Ideot shall be endowed 1 Inst Shep. says there If he have so much Knowledge that he can read or learn to read by instruction and information of others or can measure an Ell of Cloth or Name the Days of the Week or beget a Child Son or Daughter or such like whereby it may appear he hath some light of Reason then he is no Ideot naturally and cites for this Terms Ley. Some doubt if Begetting be any Evidence of Reason what think you of an Horse or an Ass that beget but most unreasonably say rather he can beget like these by Instinct Natural perhaps to him as his Folly Conjunctio Maris Feminae est de jure Naturae 1 Inst. 187. The Age of Consent to Marriage A MAN cannot consent to a Marriage before the Age of Fourteen which are his Years of Discretion but a
the Obligee as his Deed this is a good Obligation for he delivered that which makes the Obligation and more as his Deed and altho' the Delivery be void for the Surplus yet it 's good for the residue Cro. Eliz. 613. Fox and Wright's Case cited also 2 Roll. 25. Action upon the Case for inserting his Name in Letters of Excommunication ONE Harris was Excommunicated by Sentence and the Letters of Excommunication delivered to the Parson of the Parish to be read and published in the Church But the Parson having malice against one Kenton razed out the Name of Harris and put in Kenton and pronounced him Excommunicate whereupon Kenton brought an Action upon the Case against the Parson and adjudged maintainable for altho' the Excommunication be Spiritual and the denouncing thereof yet the Rasure and Alteration is meerly temporal for which an Action well lies at the Common Law and this was not only an injurious Vexation but also Scandalous to Kenton Cro. Eliz. 838. Kenton and Wallinger and 1 Roll. 100. Prince Henry committed to the King's-Bench HENRY the Fifth whilst he was Prince did many things very incongruous to the greatness of his birth for he and his wild Companions would often way-lay and rob his Father's and his own Receivers and when one of his Servants was arraigned at the King's Bench Barr for Felony this Prince hearing of it posted thither and commanded his Fetters to be struck off and he to be set at Liberty When William Gascoigne Lord Chief Justice opposed him therein and commanded him upon his Allegiance to cease from such Riot and keep the King's Peace the Prince in a Rage ascended the Bench and gave the Judge a Blow on the Face who sate still undaunted and boldly thus spake unto him Sir I pray remember your self this Seat which I here possess is not mine but your Father's to whom and to his Laws you owe double Obedience if his Highness and his Laws be thus violated by you who should shew your self obedient to both who will obey you when you are a Sovereign or Minister Execution to the Laws that you shall make Wherefore for this default in your Father's Name I commit you Prisoner to the King's-Bench until his Majesties pleasure be farther known With these Words the Prince abashed stood mute laid by his Weapons and with obeysance done went to the Prison Medull Hist Angl. in vita H. V. 3 Inst 225. He proved afterwards one of our greatest Kings being as I find him Charactered a Prince Godly in Heart Sober in Speech Sparing of Words Resolute in Deeds Provident in Counsel Prudent in Judgment Modest in Countenance Magnanimous in Action Constant in Undertaking a great Alms giver Devout to God-ward a Renowned Soldier Fortunate in Field from whence he never returned without Victory Queen THE King cannot grant to another for Life the Office of making Saddles for the Queen for the Queen is a Feme sole and so may choose her own Officers Dubitatur P. 6. Jac. C. B. between Auburcurmil and Cure 2 Roll. 213. n. 12. The Violating of a Queen Dowager no Treason THE Stat. of 25 E. 3. says Si homme violast la Compaigne le Roy c. which signifies the King's Wife or Consort for it is no Treason to violate her unless it be done during the Marriage with the King and therefore extends not to a Queen Dowager who after the King's death is not sa Compaigne 3 Inst 8. 9. Action upon the Case for throwing Wine upon his Velvet Doublet ONE Carey brought an Action of Trespass quare vi armis against Stevens for casting Wine upon his Velvet Doublet and well brought tho' he might have had an Action upon the Case Noy 48. Where one may justifie the detaining of a thing 'till Satisfaction made IF a Taylor has a Sute to make for me he is not compellable to deliver it untill he is paid for the making yet he cannot sell it for default of payment as an Inn-keeper may an Horse where there is no special agreement for the keeping of the Horse is a charge because he eats but the keeping of Apparel is no charge Yelverton 67. Note If I contract with a Taylor to give him so much for making c. he cannot detain the Cloths till he is satisfied c. because he may sue me upon the Contract per Williams 2 Roll. 92. initio See Popham's Rep. 127. Robinson and Walter that an Inn-keeper may detain the Horse of I. S. till he be satisfied for the Meat he has eaten tho' he were brought to him by a Stranger A Wife entices another Man to marry Her COOPER brought an Action upon the Case against Witham and his Wife for that the Wife maliciously intending to marry him did often affirm that she was sole and unmarried and importuned strenuè requisivit the Plaintiff to Marry her to which affirmation he giving Credit married her where in facto she was Wife to the Defendant so that the Plaintiff was much troubled in mind and put to great Charges and much damnified in his Reputation He had a Verdict but no Judgment for by Twisden the Action lies not because the Thing here done is Felony No more than if a Servant be killed the Master cannot have an Action per quod Servitium amisit quod Curia concessit besides the ground of this Action is the Communication and Contract of the Wife which shall not bind the Husband 1 Siderf 375. Whether Trespass lies for Husband or Master for a Battery whereof his Wife or Servant dies IF one beat my Servant whereby I lose his Service for a long time and he afterwards dies I shall have an Action of Trespass because it was a distinct Trespass to me by William's Justice But if one beat my Wife whereby she languishes c. and after dies I shall not have Trespass for this Battery because the Trespass was not done to me but to my Wife so that she was to have joyned in the Action and I only for conformity 2 Roll. 568. Huggin's Case Note that Case is reported by Yelverton 89. 90. and warrants not the diversity taken for 't is holden there by Three Judges no mention of Justice Williams that the Master shall not have an Action for such Battery and loss of Service but that here as well as in the other Case the Servant dying with the extremity of the Battery it is now become an Offence to the Crown being turned into Felony which drowns the particular Offence and private wrong offered to the Master and so his Action is gone Vide 1 Siderf 375. Acc ' and Stiles 347. where Roll. himself being Chief Justice cites the Case of Higgins to have been adjudged That Trespass lies not for the Battery of a Wife whereof she died because says he it is Felony the reason given by the Three Judges why it lies not for the Master See 1 Brownl 205. Admiralty A MERCHANT hath a Ship taken by a Spaniard
the end Luxury viz. Marriage or Defilement Action against a Cook TRIN. 8. H. IV. Rot. 57. Willielmus Milburn recuperat per Juratam per Billam suam in qua queritur versus Johannem Cutting Cook de eo quod ipse Johannes apud Westmonasterium vendebat dicto Willielmo unum Caponem pistum corruptibilem recale factum qui Capo assatus per quatuor dies in Hospicium Domini Regis iterum calefactus pistus extitit de quo postquam edit vomitum horribilem fecit ita quod infirmabatur per duas septimanas recuperat inquam Viginti Solidos pro damnis And Roll says he was informed that it appears upon the Record at large that the Judges increased the damages 1 Roll. 89. Burglary A. LEASES to B. a Shop parcel of his dwelling House to work in where B. works in the day but never lodges in it this Shop is broke open in the night and several Goods stollen out yet not Burglary by the opinion of Tanfield Chief Baron and Justice Hutton because by the severence thereof by Lease to him who had it as a Shop and his not inhabiting therein it was not any Mansion-House and so no Burglary but ordinary Felony Hutton 33. Fine and Hales Pla. Cor. 83. A Chamber in an Inns of Court where a Person usually lodges is a Mansion-House within the Law so is the Church so is a Shop not severed by Lease Dalton's Justice cap. 151. Hales ubi sup A Thief goes down a Chimney to rob it is Burglary tho' here was no actual breaking for one is not bound to stop up his Chimney ibid. A Guest comes to a common Inn and the Host appoints him his Chamber and in the night the Host breaks into his Guest's Chamber to rob him this is Burglary Nota Dalton cap. 151. Challenges and Duels IT is against the Law of Nature and of Nations as well as against the Law of God for a Man to be Judge in his own proper Cause especially in Duello where Fury Wrath Malice and Revenge are the rulers of the Judgment And there is nothing honourable whatever some pretend that is against the Laws of one's Country and the Law of Nature and Nations 3 Inst 157. The Killer is in a worse Condition than the Killed HE that slayeth is in worse case than he that is slain for the Murderer loseth not only his Lands and Goods but his Life also and his Honour which he so much respected for by his Attainder his Blood shall be currupted and if he were Noble or Genteel before he thereby becomes Ignoble and Base and he that is slain by Law loseth none of them so as hereof it is truly said Infoelix pugna ubi majus periculum incumbit Victori quam Victo ibid. Bare Challenge punishable IF any Subject by Word Writing or Message challenge another to Fight with him this is an Offence before any Combat be performed and punishable by Law and it is contra pacem coronam dignitatem for Quando aliquid prohibetur prohibetur omne per quod devenitur ad illud ibid. Much more if they Fight tho' no Death ensue nor Blood drawn which being an Affray and a great breach of the King's Peace is to be punished by Fine and Imprisonment and to find Sureties for their Good Behaviour ibid. What Duel allowed by Law THERE is a Duellum allowed by Law depending a Suit for the Trial of Truth see 2 Inst W. 1. c. 40. which kind of Battail in case of Appeals and Writ of Right is by publick authority and course of Law whereunto all the people by an implied consent are Parties and as some hold has it's Warrant by the Word of God by the single Battel between David and Goliah which was strucken by publick Authority ibid. Where Kings of England have offered to try their Title by single Combat KING Edward III. in the 16th Year of his Reign having War with the French King for his right to the Kingdom of France out of the greatness of his Mind for the love of his Subjects the saving of Christian Blood and a speedy Trial of the right offered the single Combat with the French King but He refused it So after long and chargeable Wars between the Crowns of England and France for the right of the Kingdom of France it was an honourable offer which King R. II. made to Charles the French King for saving of guiltless Blood and to put an end to that bloody and lingring War 1. Either a single Combat between the two Kings 2. Or a Combat between the two Kings and three of their Unkles on either side 3. Or that a fit day and place might be assigned when under the universal conflict of both their Armies an end might be put to the War The Duke of Lancaster according to his Commission made these offers from the King of England to King Charles of France but he was auditus sed non exauditus for King Charles liked none of these offers And in Anno Domini 1196. Philip King of France sent this Challenge to our Richard the First That King Richard would choose him five for his part and He the King of France would appoint five for his part which might fight in Lists for trial of all matters in controversie between them for the avoiding of shedding of more guiltless Blood King Richard accepted the Offer with condition that either King might be of the number but this condition would not be granted See 3 Inst 159 Justs and Tournaments IF at a Just or Turnament or at the Play with Sword and Buckler by the King's Command one Man kills another this is no Felony It was enacted in the Reign of King H. II. that if in such case one was slain it should be no Felony for that in friendly manner they contended to try their strength and to be able to do the King service in that kind upon occasion 3 Inst 56. Otherwise of fighting at Barriers or running at Tilt or Justs without the Kings Command whereby a Man is slain and altho it were by the King's Command yet it was holden Felony by the Justices tempore H. VIII for it was against Law Bro. Coron 228 229. Dalton pag. 352. But it is holden otherwise now Hob. Rep. 134. in Weaver and Ward 's Case Battel Champion AN Approver that kills the party accused in Battel or a Champion that kills the other Champion in a Writ of Right or the Plaintiff or Defendant in an Appeal that kills the other in Duello in these cases the party killing shall forfeit nothing for these Combats or Duels are such trials as the Law appoints in such cases 3 Inst 221. Whoever takes upon him to be a Champion for another and becomes recreant i. e. a crying Coward or Craven he shall lose liberam legem for his perjury that is become infamous and of no credit never to be a Witness or Juror ibid. You may read the form hereof and the
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
for the Matter as Form upon divers exceptions to the pleading Judgment should be given against the King After this one Thomas Harrison Batchelor of Divinity came to the Court of Common Pleas Hutton and Crawley being then upon the Bench and said I accuse Mr. Justice Hutton of High Treason for which he was committed to the Fleet by Justice Crawley and after by the King's direction indited in B. R. and Convicted and Fined 5000 l. to the King And the Judge preferring his Bill against him there recovered 10000 l. damages Hut Rep. 131. Cro. Car. 503. Trades IN the time of H. IV. when Sir William Gascoine was Lord Chief Justice a certain Vintner was indicted for selling of Wine and also for selling of Victuals to such as would resort to Dine and Sup at his House and being thereof Convicted he was Fined whereupon he consulted with some of his Fraternity and told 'em If they would give five Pounds to Gascoine all would be well and so they collected 5 l. between 'em to present him which Gascoine understanding he caused the Vintner to be Indicted for this also who was after Fined for it Palmer 396. 397. Note A Man could not by the Common Law use as many and what Trades he would before the Stat. 5. Eliz. Memorandum John Walter Knight Lord Chief Baron a profound learned Man and of great Integrity and Courage being Lord Chief Baron by Patent primo Caroli quamdiù se benè gesserit fell into the King's displeasure and being commanded to forbear the exercising of his Judicial place in Court never did exercise it from the beginning of Mich. Term quinto Caroli untill he died viz. the Eighteenth of November 1630. But because he had that Office quam diù se benè gesserit he would not leave his place nor surrender his Patent without a scire facias to shew what Cause there was to determine or forfeit it so that he continued Chief Baron until the Day of his Death Cro. Car. 203. One Indicted for behaving himself immodestly and Irreverently at Church A CERTIORARI was prayed to remove an Indictment at the Sessions at Hartford against I. S. quod non reverentèr modestè se gessit during Divine Service but the Court refused to grant it for altho' it is punishable by Ecclesiastick censures yet they conceived it a proper cause within the cognizance of the Justices of Peace 1 Keb. 491. Slander ACTION upon the Case for Words against a Feme on a question asked her per quendam ignotum Did I. S. the Plaintiff Ravish you She answered Yes Had he the use of your Body She answered Yes Whereupon he brought his Action against Baron and Feme Foster conceived that in regard the Person is found to have done it falsò malitiosè without legal authority 't is a Scandal contrà by Twisden in one Emme's Case one that had a Child at Nurse came to a Surgeon with whom she was reported to be in cure for the Pox who on enquiry told the Father she had the foul Disease which was held no Scandal not being spoken malitiosè with intent to Scandal her 1 Keble 542. Host and Oakeman Thou art a Thief and hast stollen my Maiden Head no Action lies 1 Brownlow 2. Justa occasio Loquendi IN Fox's Book of Martyrs there is a story of one Greenwood who lived in Suffolk that he had perjured himself before the Bishop of Norwich in testifying against a Martyr that was burnt in Queen Mary's time and had therefore afterwards by the just Judgment of God his Bowels rotted in him and so died But it seems this story was utterly false of Greenwood who after the Printing of the Book of Martyrs was living in the same Parish It happened after that one Prick a Parson was presented to the Living of that Parish where this Greenwood dwelt and some time after in one of his Sermons happened to inveigh much against the Sin of Perjury to which his Text led him and the better to deterr the People from it he told them this passage out of Fox That one Greenwood being a Perjured Person and a great Persecutor had great Plagues inflicted upon him and was killed by the Hand of God whereas in truth he never was so Plagued and was himself present at that Sermon and thereupon brought his Action upon the Case for calling him a Perjured Person and the Defendant pleaded Not Guilty And this matter being disclosed upon the Evidence Wray Chief Justice delivered the Law to the Jury That this being delivered but as a Story and not with any Malice or Intention to slander any he was not guilty of the Words maliciously and so was found Not Guilty This Case is cited by Coke 2 Cro. 91. and affirmed to be good Law by Popham when one delivers ought after his occasion as matter of Story and not with intent to Slander any See the Case 1 Roll. 87. 'T is cited too by Sir Robert Atkins in his Treatise of the Jurisdiction and Privelege of Parliament c. fol. 11. If a Man says he be in discharge of his Function and lawful Calling and discoursing of a subject proper for it in pursuit thereof tells a Story which he takes up upon Trust not knowing it to be false and it prove at last to be utterly untrue and an innocent Person is highly Slandered by it yet he shall not be subject to an Action of Slander for it the occasion of speaking shall clear him from the Malice without which the Action will not lie One calling himself by a wrong Name is arrested the Arrest is naught IN an Action of False Imprisonment by Coot against Lighworth the Defendant justified because he had a Warrant to Arrest I. D. and he demanded of Coot what his Name was who answered that his Name was I. D. and therefore he arrested him to which the Plaintiff demurred and had Judgment for the Defendant at his peril must take notice of the Party Moor fol. 457. Agreeable hereunto see Doctor and Stud 311. That if a Sheriff upon a Replevin deliver other Beasts than were destrained tho' by information of the Party that destrained yet Trespass lies for he shall be compelled by the Law to execute the King 's Writ at his peril according to the Tenor thereof and to see that the Act which he doth be lawfully done Note Grome's Case in Palmer's Rep. 395. I. S. knowing that Execution would be made upon his Goods procured I. D. by Covin to bring his Cart into his Yard to the intent that the Baily might take it in Execution and so to have Trespass against him the Bailiff did take the Cart but afterwards having knowledge of the matter sent the Cart back and I. D. brought Trespass but Lea Chief Justice held that the Bayliff might plead the fraud in excuse Bond in a Book good A MAN writes an Obligation in a Book and in the same Leaf he puts his Seal to it and then delivers the Book to