b. Feme Lessee for Years takes Husband he purchases the Fee the term there is extinct by the Act of the Husband which destroys it viz. the purchase but where he had the Reversion before her Term shall continue for the Act of the Law shall not prejudice 4 Leon. 212. An Executor hath a Term and purchases the Fee the Term is determined by Dyer 4 Leon. 212. Counseller and Client IF a Counseller say to his Client that such a Contract is Simony and the Client makes answer That Simony or not Simony he will do it and thereupon the Counsellor maketh this Simonaical Contract it is no offence in him by Reeve Justice March 83. pl. 136. Carrier robbed allowed a Witness to prove the Robbery IT was said by Chief Justice Glyn that a Carrier who is robbed may be examined as a Witness at a Tryal thereupon to prove the Robbery and what he was robbed of otherwise the truth can't be known But this is the only Case he said where one may be admitted to give his testimony as a Witness in a matter which concerns himself Stiles Pr. Reg. 571. Warren and the Hundred of Broadwater Examination of a Witness IN examining a Witness Counsel cannot question all the Life of the Witness as whether he be a Whoremaster c. but if he hath done any notorious fact which gives just exception against him this may be taken and he may be excepted against March 83. pl. 136. What Sergeants Rings ought to weigh SEVENTEEN Sergeants being made the Fourth of November 21 Car. II. Serjeant Powis coming a day or two after to the King's Bench Bar Chief Justice Keeling told him he had somewhat to say to him viz. that the Rings which he and the rest of his Brethren had given weighed but 18 s. apiece whereas Fortescue says in his Book de laudibus Legum Angliae that the Rings given to the Chief Justices and Chief Baron ought to weigh 20 s. a piece and that he spake this not expecting a Cecompence but that it might not be drawn into a President and that the young Gentlemen there might take notice of it See the Mod. Rep. 9. Legatee allowed as a Witness to prove the Will ONE that has but a small Legacy given him by a Will may be allowed as a Witness to prove that Will for the Law will not intend that any one will forswear himself for a small matter Stiles Pr. Reg. 568. but see Stiles Rep. 370. initio A Man brings Debt against his own Executors VIDE 1 Inst 133. b. that in some Case a Man might have had an Action of Debt against his own Executors as if A. had been bound to the Abbot of Dale in an Obligation and afterward A. had been professed a Monk in the same Abby and after were made Abbot thereof he should now have had an Action of Debt upon his own Bond against his own Executors Note when a Man entred into Religion he might make his Will and his Executors and they should have had an Action for a Debt due to him before his entry into Religion or any other Action that Executors may have as if he had been dead indeed pari ratione they might be also sued and in the Case supra the Bond being made to an Abbot by one who after became dead in Law by entring into Religion whereby his Executors became chargeable c. when he himself was afterwards restored to legal Life by being made Abbot the Debt being unsatisfied himself was then the only Person capable of suing for it Where a Feme Covert shall have both an Executor and Administrator THE Wife of I. S. having Debts due to herself and being also Executrix to I. D. makes without her Husband's assent I. N. her Executor and dies Here as touching the Goods and Credits or Things in Action pertaining to her as Executrix of I. D. this Will stands good and I. N. may prove it contrary to her Husband's Will But as to the Credits to her self in her own right pertaining the Will is void and thereof her Husband may take Administration So Note she shall die both Testate and Intestate with a Will and without a Will shall have both an Executor and Administrator Office of an Executor 281. Pleasant Custome BY a Custome which they have in the Town of Southampton if a Bastard Child be found within the Town and the Father of it cannot be discovered he that comes next into the Town after the Child was found must keep the Child Mich. 24. Car. B. R. Stiles Practical Register 105. It may be says Stiles they of the Town did time out of mind agree amongst themselves that it should be so and therefore it shant be adjudged an unreasonable Custome tho' it seems a strange one Custome to hang for Stealing a Capon not for Stealing an Ox. THERE are several Customes which are good ratione loci that are not allowed throughout England as there is a Custome in the Isle of Man that a Man shall be hanged for stealing a Capon yet he shall not be hanged for stealing an Ox. 12 H. VIII 5. 1 Siderf 267. Custome in Cheshire THERE is a Custome in Cheshire that if a Debtor come before the Chamberlain of Chester and there takes his Oath that he is not able to pay the Debt but that he will pay it as soon as he can that he shall have a Protection See 1 Roll. 566 567. Note Whereas by the Custome of London an Action upon the Case lies for calling a Woman Whore and so likewise in the Court of the Borough of Southwark where they alledge a Custome specially for Whipping and Carting of Whores it lieth likewise for a Lodger for she comes within the Customs which reach to all the Inhabitants One loses at Play more then 100 l. to several Persons DEBT upon Bond the Defendant pleads the Stat. 16 Car. II. cap. 7. against Gaming that he lost at Most at Three Throws 90 l. to the Plaintiff and at the same time 30 l. to A. at Cards and 60 l. more to B. at Bett The Plaintiff demurred because it does not appear that these were Parties together or in trust one for the other and in Danver's Case the Act was held to extend only to the security for more than 100 l. much less shall it extend to different Gamesters But the Court agreed it was not material to whom the Party became indebted for the Statute is That you shall not lose more than 100 l. at one time or meeting upon Ticket and Judgment was given for the Defendant the Statute being to be extended against Play 3 Keb. 671. Hudson and Malim Danvers his Case was thus 1 Siderf 394. Bond was given for 100 l. lost at Play there being lost at the same time a Ring of 20 l. value which was paid and adjudged the Bond was not void within the Statute the design whereof was to avoid Securities but did not regard ready Money as not presuming that
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
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
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
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.
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
Tenant dies here the Lord shall have the Land against his own confirmation for 't is ruled in Beaumont's Case Co. 9. 141 b. that a confirmation cannot add a discendible quality to him that is disabled to take by descent But vide Cro. Car. 478. by Jones and Croke a Deed shall never be void when by any Intendment it may be allowed good and to have any operation and that altho' in Beaumont's Case the Heir in tail was barred by the fine of his Ancestor yet they hold he was restored to the Estate tail by the Confirmation of him in the Reversion for as the Fine was an Estoppel to the Heir to claim against the Fine so the Indenture of Confirmation is an Estoppel to him in Reversion to say that the Heir shall not hold it in tail and there it is an Estoppel against an Estoppel which sets the matter at large See Jones 394. Fine levied by a Woman born Deaf and Dumb. ONE Martha Eliot that was born Deaf and Dumb came before Chief Justice Bridgman to levy a Fine she and her three Sisters had a House and Land and an Uncle had maintained her and was to buy the House and Land of them and agreed to maintain this Woman if she would pass her Land for Security As to her intelligence the Sisters said she knew and understood the meaning of all this the Chief Justice demanded what sign she would make for passing away her Lands and as 't was interpreted to him she put her Hands that way spreading them out where the Lands lay This matter being communicated by the Chief Juslice to his Brethren Judge Archer with whom Tyrrel and Brown agreed said that the rule in Law is that in Fines and Feoffments c. if there be a good intelligence they may well do such Acts they may be admitted to make contracts for their good They are allowed upon examination to Marry and to receive the Sacrament they may make contracts for their Persons and by the same reason for their Lands and so his Lordship took the Fine Cartor's Rep. 53 54. Vide Perkins Sect. 25. that one born Deaf and Dumb may make a gift if he have Understanding but that 't is hard such a Person should have Understanding for that perfect intelligence comes by hearing And see 1 Inst 8. a. that one born Deaf and Dumb may be Heir to another tho' it was otherwise held in ancient time and so if born Deaf Dumb and Blind for in hoc casu vitio parcitur naturali but note it is there said that such persons cannot contract Alien suffers a Common recovery LAND was given to an Alien in tail the Remainder to I. S. in Fee the Alien suffered a Common Recovery and died without Issue all which being found by Office the Court resolved the Recovery was good and should bind the Remainder-Man 4 Leon. 84. Note it has been adjudged where an Alien and I. S. were Joint-Purchasers and the Alien died that I. S. should not have the whole by Survivor but that the King should have the Moiety upon Office found The Wife of I. D. levies a Fine with I. S. as his Wife and I. D. can 't prevent it I. S. and the Wife of I. D. levied a Fine of her Lands by the name of I. S. and Jane his Wife I. D. came into Court and shewed this matter and prayed to stay the Fine but the Court would not stay it for the Court shall not determine loyalty of Matrimony and if it be true that she is not the Wife of I. S. it shall not hurt the rightful Husband 2 Roll. 19. Keblethwaite and Wade Wife prays the Peace against her Husband ON a difference between the Lord Leigh and his Lady about Pin-Money viz. the settlement of 200 l. per annum in case of Separation she upon Affidavit of hard Usage and that she went in fear of her Life prayed security of the Peace against him and 't was granted Note Hale Chief Justice said here the Salvâ Moderatâ castigatione in the Register is not meant of Beating but only of Admonition and Confinement to the House in case of her Extravagance Curia acc ' she being not as an Apprentice c. but they were reconciled afterwards 3 Keb. 433. See 1 Keb. 637. Bradley's Case The Court refused to bind him to the Peace at his Wife's Suit unless her Life were in danger because by the Law he has power of Castigation and the Bishop of London had certified that he used to beat her but that she used to provoke him Fine Sur Grant Lender Executory A MAN by Fine acknowledges all his right in certain Land to me and I render it back again to him in Fee where neither of us hath any thing in the Land and after I purchase the Land this Fine shall bind me for it was executory upon me 2 Roll. 20. Witness excused from swearing the whole Truth IN a Cause between Sparke and Sir Hugh Middleton Mr. Aylet having been Counsel for the Defendant desired he might not be sworn on the general Oath as Witness for the Plaintiff to give the whole Truth in evidence which the Court granted after some dispute and that he should only reveal such matters as he either knew before he was of Counsel or that came to his knowledge after from others and the particulars to which he was sworn were particularly proposed viz. what he knew concerning a Will in question that P. G. made and the Court only put the question Whether he knew of his own Knowledge 1 Keble 505. See Stiles 449. Waldron and Ward That a Counsellor is not bound to make answer to matters which may disclose the secrets of his Client's cause by Roll. Chief Justice and so he was forborn to be examined Vide March 83. pl. 136. that a Lawyer of Counsel may be examined upon Oath as a Witness to the matter of Agreement not to the validity of an Assurance or to the matter of Counsel Extinguishment IF a Man Lessee for Years take the Feme Lessor to Wife his Term is drowned for a Man cannot have a Term for Years in his own right and a Free-hold in auter droit to consist together 1 Inst 338. b. Baron Lessee for Years and the Inheritance descends to his Feme Resolved per Cur. praeter Williams That here the Term is not extinct 2 Cro. 275. So note a difference where the Feme has the Reversion before Marriage and where the Fee descends to her after Marriage Jenkins cent fo 73. the first is the Act of the Husband the other the Act of the Law which shall not prejudice him If a Man Lessor Marry the Feme Lessee the term is not drowned but he is possest of it in her right during the Coverture So if the Lessee make the Lessor his Executor the term remains for a Man may well have a Free-hold in his own right and a Term in auter droit Pl. Com. 418. 1 Inst 338.
Assault and Battery quod cumulum pecuniae containing Five Marks cepit and the whole Court was of opinion in regard the Plaintiff's own Money cannot be known and this his intermedling is his own Act and his own wrong that by the Law he shall lose all for if it were otherwise a Man might be made to be a Trespasser against his Will by the taking of his own Goods to avoid which inconvenience the Law will justifie the Defendant's detaining all Querens nihil capiat per Billam 2 Cro. 366. Ward and Ayres and 2 Roll. 566. So if I voluntarily intermingle my Corn with another Man's he may take all ibid. and 1 Siderf 38. the end accord ' by the Chief Justice Action for playing with false Dice A. ENTICED B. to play with him at Dice at a Game called Passage whereupon he played with him and when it came to B's turn to throw A. delivered in true and fair Dice with which he play'd but when it fell to his own turn he threw with false Dice such as he knew would run Five or Six upon every Die and so B. lost 10 l. whereupon he brought an Acton upon the Case for this Deceipt and recovered 1 Roll. 100. Hartwell and Oak's Case Note It was resolved in Martin Leeser's Case That if common Players with false Dice to couzen the People at Play do enter into the House of another Man and desiire him to play at Dice and with their false Dice couzen him of his Money by Play altho' this be not Felony nor an Offence for which he shall lose Life or Member yet he shall be set upon the Pillory where the Offence was committed 2 Cro. 497 498. Motion to quash an Indictment against two for being Common Players at Cards and defrauding the Plaintiff of 40. s. not saying Vi Armis but per Curiam it 's needless 2. to say Angl. a Trick at Cards without a Latin Word there being none for it is good 1 Keb. 652. Where the Owner may retake his Goods tho' altered in Form A WRONG-Doer cuts down Trees and carries them away and makes Timber or Boards of 'em yet may the owner retake 'em in the Land of the Tort-feasor For in all Cases where a thing is taken wrongfully and altered in Form yet if that which is the principal part of the substance remains the notice of the thing is not lost as if a Man should tortiously take away my Cloak and make himself a Duoblet of it yet I may retake it from him So if one take from me a Piece of Cloth and after sow Silver or Gold into it yet I may take it from him Quia major pars substantiae remanet Moor. pla 67. Note If I. S. bequeaths a Pack of Wool to I. D. and after the Testator converts it into Cloth and dies possessed of it I. D. shall not have the Cloth Doderidge English Lawyer 132. Where Property shall not be altered by a Sale in Market Overt 'T IS the opinion of some that the Goods of a Bankrupt tho' he has sold them in Market Overt are notwithstanding that liable to the sale of Commissioners by Twisden And 't is clear they are liable if sold out of Market Overt 1 Siderf 272. initio See Dyer fol. 99. placito 68. A Man bought stoln Beasts out of Market and gave Five Shillings to have election to refuse in the Market to be holden the next Day and then in the Market he agreed to have the Beasts and payed Toll It was held in this Case that the property was not altered for that the Agreement relates to the Contract out of the Market quod nota In Trover by Gibbs against Basil for a Gelding the Case was one Porter stole this Gelding from the Plaintiff and sold him to the Defendant in open Market by the name of Lister and 't was entred so in the Toll Book that Lister sold him This is no good sale to bar the Plaintiff for the Stat. 2 and 3 Philip and Mary cap. 7. provides that no property of stollen Goods shall be altered that are sold unless the Name and Sirname of the Parties to the sale be entred in the Toll Book Owen 27. Justification IF a Man hath a heap of Corn by my heap of Corn and he takes a handful out of my heap I may take a handful out of his and justifie for he shall not take advantage of his own wrong 2 Roll. 566. n. 10. To justifie the taking anothers Goods without being a Trespasser IF one Saddles my Horse and then puts him into his own Ground I may well come and take my Horse out and keep the Saddle and not be liable to Trespass for so doing and because he puts his Saddle upon my Horse I may justifie keeping it 'till he brings Action to recover it So if one load my Cart with his Corn or my Boat with his Coals or the like I may well take my Cart and Boat away and keep and detain the Goods without being a Trespasser 'till he bring a Detinue to recover 'em fron me 1 Buls 96. Demurr to a Demurrer NOTE One may demur to a Demurrer for the doubleness of it for a Demurrer should be formal and certain to avoid Barbarism and inveigling the Court but if he demurs not to it when he may but joyns in the Demurrer he hath now slipped the advantage and he cannot demurr afterwards A Demurrer is double when he that demurrs assigns therein for cause of it one Error in Fact and another in Law which he ought not to do for if either of the Causes be true it is sufficient to overthrow the Plea and it is at his liberty to insist upon that which is best for his own advantage but not upon both for this were to puzzle the Proceedings See Stiles Pract. Reg. 133. Accessary to an Accessary IF one feloniously receive another that is an Accessary to a Felony the Receiver is an Accessary Stamf. lib. 1. One of ill fame demands the Rent without Authority c. LEASE for Years rendring Rent with re entry for Non-payment at the day a Stranger came to demand the Rent the Lessee asked him by what Authority and because he was a couzening Fellow and notoriously infamous and would not shew any Authority from the Lessor the Lessee would not pay the Rent and so the Lessor entred and adjudged lawful for that a command to receive Rent may be by Parole Cro. Eliz. 22. Sir John Souch's Case Serjeant Moor reports a Case without Name in the same Year with this but another Term A Lease for Years upon condition to re-enter for not-payment of the Rent at the last day there came upon the Land a Man of an ill fame who was Out-lawed in Forty Actions and conversed all the day with the Lessee but said not a Word for what cause he came and at the last instant of the day he demanded the Rent the Lessee asked him what authority he had to receive
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
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
the very Day of the date which the Lord Hobart says is by reason of the intent of the Law and not by the Letter Hob. 139. Moor 40. and 42. acc ' tho' it is there said that such an Enrolment had been adjudged void See Latch 14. Tender of 50 l. in Stone IN the Case of Hooks and Swain 1 Siderfin 151. Twisden says he remembred this nice Case Sir William Fish was bound by Obligation to pay such a Day in Gray's Inn Hall fifty Pounds generally without saying of Money and therefore upon the Day when the Gentlemen were at Supper Sir William came in and tendered fifty pound weight of Stone and adjudged no tender See Owen 64. where Plowden says Libra in Latin signifies a Weight yet if one is bound in Vigint Libris and forfeits his Bond he must pay Money and not Lead or the like Witnesses ONE burned in the Hand for a Felony may be a Witness in a Cause by Rolls Chief Justice for he may purchase Land and his fault is purged by his punishment Stiles Rep. 388. and Pract. Reg. 571. If an Action be brought against two and at the Assizes the Plaintiff proceeds only against one of them the other may be allowed a Witnes in the Cause Godb. Case 418. The Sheriff arrests a Man looking out of his Window c. WHEN an Execution is lawfully begun or hath a legal Commencement the Sheriff may justifie the breaking of the Parties House to take him otherwise if there be no legal Commencement This diversity was taken and agreed for Law in Sir William Fish his Case Sir William was looking out of his Window and the Sheriff per fenestram delivered to him a Capias ad Satisfac to take the said Fish and apprehend him and Fish escaped from him and the Sheriff broke the door of his House maintenant and retook him and adjudged lawful because there was a lawful beginning of the Execution before which was presently pursued Palmer's Rep. 53. Vide Hobart fol. 62. That a Sheriff cannot upon private process rush into a House which by craft as knocking at the Door c. he procured to be opened unto him and there the first entry was held unlawful for the opening of the Door was occasioned by craft and then used to the Violence intended Sanlder IF a Man say to another Thou art a Rogue and a Pocky Rogue and the Pox haunts thee twice a Year an Action lies for hereby 't is apparent he intended the great Pox because these are wont to grieve those that have them bis per annum viz in the Spring and Autumn Prekington's Case 1 Roll. 66 67. Where Circumstances shew the apparent intention of Words doubtful in themselves that they are slanderous an Action lies for them as where one said of a Woman That she did lie with a Weaver of Colchester in a Dutch and the Weaver's Breeches were down and they were at it an Action lies for altho' the Weaver might lie with her in a Ditch without harm yet the latter Words shew he intended that the Weaver had carnal Knowledge of her Roll. 1 Rep. 420. Root and Molyne's Case I know what I am and I know what the Plaintiff is I never Buggered a Mare Per. Cur ' tho' no grammatical affirmation is a sufficient scandal yet being found with such intention and so imagined by the Hearers the Ironical speaking will not excuse Jud. pro Quaer ' 3 Keb. 546. Slander A. SAYS to B. One of Us two is Perjured B. says to A. It is not I and A. says again I am sure it is not I B. shall have an Action for these words for the subsequent Words shew apparently that he intends Him 1 Roll. 75. Coe and Chambers Justice Twisden said he remembred a Shooe-maker brought an Action for saying He was a Cobler and tho' a Cobler be a Trade of it self yet 't was held the Action lay in Chief Justice Glyn's time Mod. Rep. fol. 19. Margaret Commings brought an Action for these Words viz. Thou art a Whore and a base burnt Arse Whore and adjudged Actionable 2 Siderf fol. 5. the French Pox usually comes of burning Cro. Eliz. 2. but 't is left a Quaere there whether the Words Thou art a burnt Whore will bear an Action Not Guilty A MAN may plead Not Guilty yet tell no lye for by the Law no Man is bound to accuse himself so that when I say Not Guilty the meaning is as if I should say by way of Paraphrase I am not so guilty as to tell you if you will bring me to a Tryal and have me punished for what you lay to my charge prove it against me Selden Presentation IF I am seized of an Advowson and I present to it as Procurator to a Stranger this shall be an Usurpation upon my self for the Stranger So if I present to an Advowson whereof I my self am seized as Attorney to a Stranger this is an Usurpation for him 17 E. 3. 60. Where a Child may choose his Father IF a Man has a Wife and dies and within a very short time after the Wife marries again and within nine Months hath a Child so as it may be the Child of the one or the other some have said that in this Case the Child may choose his Father Quia in hoc casu Filiatio non potest probari for avoiding of which question and other inconveniences the Law before the Conquest was Sit omnis Vidua sine Marito duodecim mensibus si maritaverit perdat dotem 1 Inst 8. a. See Finch his Law 117. that if one die his Wife priviment enseint i. e. so with Child as it is not discerned and she take another Husband the Issue born within a Month or such a time as it is impossible he should beget it shall be accounted the Son of her first Husband and cites 21 E. 3. 29. 'T is said the Law now is That if a Wife bring forth a Child begotten by a former Husband or any other before marriage but born after marriage with another Man this latter must own the Child who shall be his Heir at Law Assault IF a Man assault me I am not bound to attend untill he strikes but I may lay him on before in my own defence for it may be I shall come too late afterwards 2 H. IV. 8. per Curiam Wearing a Sword no breach of the Good Behaviour THE Wearing of a Sword after one is bound to his Good Behaviour is no breach of the Good Behaviour now as perhaps it was heretofore see Cromp. Justice of Peace 119. 126. when Swords were not usually worn but by Soldiers for then they struck as great a Terror in People as a Blunderbuss does now But since at this Day Swords are usually worn by all sorts of People this cannot now be construed a breach of the Good Behaviour So that which heretofore was a Crime is now by Custom become none Hawles Remarks c. 81. Slander ACTION will
lie for these Words This is the Whore that my Man Thomas begat a Bastard on and spent all my Money upon and the Quean hath been too long in Town to my ease Stiles 274 277. â— Roll. 38. So for this He hath got Mary Nab with Child and the Child is his and I have tried it with a Sieve and a pair of Sheers Stiles 379. So for this Thou art an Whoremaster for thou hast lain with Brown 's Wife and hadst to do with her against a Chair whereby he lost his Marriage tho' 't was objected This was the first President where loss of Marriage was ever â—aid for Words spoken of a Man 2 Cro. 323. Vide 3. Buls 48. It will not lie for this A. is an errant Whore and would have lain with me Seven Years since and I would not unless she would go to the Hedge for this is a Spiritual Slander only Wife a Chattel A MAN may justifie the Battery of another in defence of his Wife for she is his Chattel 2 Roll. 546. the end Prohibition A. WAS sued in the Ecclesiastical Court for beating his Wife and calling her Whore and sentenced to pay her three Shillings a Week for Alimony and divers Fines were imposed upon him for non-performance and provided he should enter into a Recognizance a Prohibition was granted 2 Brownl 36. Agar's Case Complaint in the Spiritual Court by the Wife against her Husband CLOBORN'S Wife complained against him in the Spiritual Court causâ saevitiae for that he gave her a Box on the Ear and spate in her Face and whitled her about and called her Damn'd Whore This was not by Libel but verbal Accusation reduced after to writing The Husband denied it but the Court ordered him to give her four Pound every Week pro Expensis Litis and Alimony whereupon he moved for a Prohibition suggesting that he chastized his Wife for a reasonable cause as by the Law of the Land he well might after which she went from him and that they were reconciled again which took away the former saevitia as reconciliation after Elopement Richardson Chief Justice said The Suit being held without Libel is no ground for a Prohibition if they proceed according to their Form which we are not Judges of but if they deny a Copy of the Libel a Prohibition lies by the Statute For the matter The Sentence in causâ saevitiae is à Mensâ Thoro and we cannot examine what is cruelty and what not But without doubt the matter alledged is cruelty for spitting in the Face was punishable by the Star-Chamber But if Cloborn had justified and set forth a Provocation by the Wife to give her reasonable castigation there would be some colour for a Prohibition and they advised him to tender a Justification and if refused then to move for a Prohibition Hetley 149. 150. Where a Horse shall be led to the Pound with his Rider on his Back A HORSE whereon a Man is riding cannot be destrained for Rent But Chief Justice Keeling was of opinion that such a Horse may be destrained Damage Feasant and that he shall be led to the Pound with his Rider upon him 1 Siderfin 440. FINIS A Catalogue of Books some of them newly Printed for Sam. Briscoe over-against Will 's Coffee-House in Russel-Street in Covent-Garden THE History of Polybius the Megalopolitan containing a general Account of the Transactions of the World and principally of the Roman People during the first and second Punick Wars with Maps describing the Places where the most considerable Engagement and Battles were fought both by Sea and Land Also an Account of their Policies and Stratagems of War of the Ancient Romans in Conquering the greatest part of the then known World in Fifty three years Translated by Sir H. S. To which is added a Character of Polybius and his Writings By Mr. Dryden in Two Volumes 8 vo Price 10 s. The Lives of the Twelve Caesars the first Emperors of Rome Written in Latin by C. Suetonius Tranquillus Translated into English by several eminent Hands with the Heads of the Emperors on Copper Plates Advice to a Young Lord Written by his Father under these following Heads viz. Religion Study and Exercise Travel Marriage House keeping Hospitality of the Court of Friendship of Pleasure and Idleness of Conversation Aristotle's Rethorick or the true Grounds and Principles of Oratory shewing the right Art of Pleading and Speaking in full Assemblies and Courts of Judicature In four Books Second Edition The Religious Stoick or a short Discourse on several Subjects Viz. Of Atheism Superstition the World's Creation Eternity Providence Theology Strictness of Churches of the Scriptures of the Moral and Judicial Law of Monsters of Man and his Creation of the Immortality of the Soul of Faith and Reason of the Fall of Angels and what their Sin was of Man's Fall of the Stile of Genesis why Man fell with a Refutation to the Millennaries with a Friendly Address to the Fanaticks of all Sects and Sorts The Second Edition by Sir George Mackenzie A Moral Essay preferring Solitude to Publick Employment and all its Appennages such as Fame Command Riches Pleasures Conversation By Sir George Mackenzie Second Edition Jovial Poems and Songs by several Hands Ovid's Epistles Translated by several Hands Adorned with Cuts Physical and Mathematical Memoirs Written at the Royal Academy of Paris Where you may be furnished with most sorts of Plays