I suppose Vide Hob. 304. Again The Law construes things with equity and moderation and therefore restrains a general Grant if there be any mischief or inconvenience in it and therefore if a Corody be granted to one and his Servant to sit at his Mess he cannot bring a Servant that hath some filthy or noisome Disease So if a Common be granted to one for all his Beasts yet he shall not have Common for Goats nor Geese nor other Beasts not commonable Finch his Law 56. So if a Man grant Common in all his Lands the Grantee shall not have Common in his Orchards Gardens or Meadows 3 Leon. 250. Where one may have an Estate Tail yet all the Issues barred to inherit BARON and Feme Tenants in special Tail with Remainder to the Barons right Heirs they have Issue A. the Baron dies A. in the Life of his Mother levies a Fine with Proclamations to I. S. and resolved it should barr the Estate Tail tho' 't was clearly admitted that the Feme remained Tenant in Tail Co. 3. 50. If the Son of Tenant in Tail levy such a Fine in his Fathers Life it barrs the Tail from descending yet the Father remains Tenant in Tail Co. 9. 141. for the Son is concluded and cannot enter against his own Fine See Stat. 32. H. VIII Name DEBT upon Bond was brought against one Jaacob Aboab by the Name of Jacob he pleaded that he was called and known by the Name of Jaacob and not Jacob but it was over-ruled Mod. Rep. 107. 3 Keb. 284. See a notable Case in Stiles Rep. 389. 390 c. the Report of it is very long but this is the short on 't One Mills seised of Lands in Fee devised them to Elizabeth his Daughter in Tail with a provisoe that if she Married one of his own Sirname that then she should have the Lands in Fee-Simple She Married one Mill but commonly called and known by the Name of Mills also In this Case the Court held that Mills and Mill are not one and the same Sirname for the Testator had a particular Eye to his own true Sirname and the common reputation of Mill and Mills to be the same Name shall not make Mill to be the Testator's true Sirname Note This is a special Case and goes not according to the ordinary Rules of Names that sound alike Hence I shall take occasion to treat of Names what Names are the same in Law and what are not It is held that Sain John and Saint John are several Names So are Elizabeth and Isabel so Margaret Marget and Margerie so Gillian and Julian so Agneis and Anne so Cozen and Cousin so Edmund and Edward so Randulphus and Randal and so Randulphus and Randolphus so Randolph and Ranulph so Isabel and Sibil for all which see 1 Anderson 211. 212. 2 Cro. 425. 558. 640. 2 Roll. 135. But Piers and Peter are one Name 2 Cro. 425. so Saunders and Alexander so Garret Gerrard and Gerald. 2 Roll. 135. so Joan and Jane 2 Cro. 425. Note Tho' James and Jacob are several Names yet Jacobus is Latin for both and will serve for either of ' em 2 Roll. 136. Sir John Hathwaie was bound in a Bond thus Noverint Universi me Jean Hathwaie teneri c. this was a good Obligation for Jean shall be taken for an abbreviation of Johannem and so the same Name Cro. Car. 416. 418. 2 Roll. 136. Note If the Name of the Obligor be subscribed it is sufficient tho' there be a blank or blot for his Christian Name in the Bond. 2 Cro. 261. Dobson and Key 's See more of Names 1 Keb. 427. What one cannot do by another THERE are some things personal and so inseparably annexed to a Man's Person that he cannot do them by another as the doing of Homage and Fealty So it is holden that a Lord may beat his Villain for cause or without cause and the Villain is without remedy but if the Lord command another to beat him without cause who does accordingly the Villain shall have an Action of Battery against him So if the Lord destrain his Tenant's Cattle when nothing is behind yet the Tenant for the Reverence and Duty that appertains to the Lord shall not have Trespass vi armis against him but if the Lord command his Bailiff or Servant to destrain in such case where nothing is behind the Tenant shall have an Action of Trespass vi armis against them Co. 9. 76. a. in Comb's Case Where a Commoner shall have an Action upon the Case against the Lord. If the Lord surcharge the Soil with Conies the Commoner upon this particular loss may have an Action upon the Case against him Yelverton 104. 105. See Cro. Car. 387. 388. Words ending in Ment. JUSTICE Doderidge saies It has been wittily observed that all Words which end in Ment shall be taken and expounded according to the Intent as Parliament Testament Arbitrament c. Latch 41. 42. Where one shall be remitted against his own Discontinuance and Reprisal BARON and Feme Tenants in special Tail He aliens in Fee and takes back an Estate to them for their Lives this is a Remitter to both maugre the Husband for it cannot be so to the Wife without also to him because they are but one Person in Law tho' he be estopped to claim and so it is a remitter in him against his own alienation and reprisal Lit. Sect. 672. Note if he had taken the Estate to him alone he could not have been remitted against his own alienation but when the Estate is made to Husband and Wife tho' they are but one Person in Law and no Moieties between 'em yet because she can't be remitted unless he be remitted also and because remitters are favoured in Law the more ancient and better rights being thereby restored therefore in Judgment of Law both are remitted quod nota 1 Inst 354. Where a Wife may convert Goods to her own use THE common Doctrine is That a Wife cannot convert Goods to her own use because she has no property during the Husband's Life yet note In some Case there may be a Conversion of Goods by the Wife to her own use as if she find or take Barley from another as the Case was and bake it into Bread and eat it herself March fol. 60. and Jones 443. per Jones Justice Note When the Baron and Feme joyn it is the Act of the Baron only and the Feme in such Case cannot convert to her own use But an Action of Trover well lies for conversion by the Feme before Marriage or by the Feme only during the Coverture for she may do a Tort solely and the Husband shall he sued with her but not where she joyns with the Husband Cro. Car. 254. Rhemes and Humphreys and fol. 494. Perry and Diggs acc ' See 2 Cro. 5. Where a Wife may give Evidence against her Husband THE Lord Coke in his 1 Inst fo 6. b.
the Realm or Lord of Parliament Scil. Baron Viscount Earl Marquiss and Duke propter honoris respectum are not to be sworn on Juries and if neither Party will challenge him he may challenge himself for 't is provided by Magna Charta Quod nec super cum ibimus nec super eum mittimus nisi per legal◠judicium parium suorum aut per legem terrae Co. 6. 52 53. But note If a Peer is to be tried by his Peers he cannot challenge any of ' em 1 Inst 156. b. Where an Infant shall not reverse his Fine IF an Infant being a Feme covert or other Infant levy a Fine by grant and render to her or him in tail or for Life and the Husband die the Wife shall not have a Writ of Error because she is Tenant of the Land and she cannot have a Writ of error against herself so that she is without remedy So in the case of the other Infant per Catlyn Owen 33. Where one shall have a Formedon of Land that was never given 'T IS holden in 42 Edw. III. 53. cited in Mary Pottington's Case Co. 10. 37. b. that in some case a Man shall have a Writ of Formedon of Land that was never given as if Lands in tail are lost and the Tenant in tail recovers other Land in value the Issue in tail shall have a Formedon of the Lands recovered in value and yet those Lands were not given Livery and Seisin over a Wall IF one that is seised in Fee of an Orchard makes a Feoffment of it to I. S. and goes into the Orchard and cuts a Turf or a Twigg and delivers it in the name of Seisin to the Feoffee over a Wall of the same Orchard the Feoffee then being in other Land not mentioned in the Feoffment this is a void Livery 2 Roll. 6. numb 5. Note If it appears that the Feoffor intends to make an actual Livery it shall never amount to a Livery in Law 2 Roll. 7. n. 40. Where a Man shall give and take by his own Livery IF there be Dean and Chapter and one of the Chapter is sole seised of Land in Fee in his own right and thereof enfeoffs the Dean and Chapter by Deed and makes Livery and Seisin according to the Deed here the Feoffor gives and takes by the same Livery Perk. Sect. 205. So of a Mayor and Commonalty c. William the Conqueror 's Charter to Norman Hunter I WILLIAM the Third Year of my Reign Give to thee Norman Hunter To Me that art both Leef and Dear The Hop and the Hopton And all the Bounds up and down Under the Earth to Hell Above the Earth to Heaven From Me and Mine To Thee and Thine As good and as fair As ever they were To witness that this is Sooth I bite the White Wax with my Touth Before Jug Maud and Margerie And my youngest Son Henry For a Bow and a broad Arrow When I come to hunt upon Yarrow Vide Speed 424. b. 2 Roll. 181. Meriton's Anglorum Gesta in Vita W. I. Whether one can take and loose a Fee by the same Livery TENANT in Tail makes a Lease for his own Life the Remainder to the Donor in Fee this gift of the Fee is void because the Donor had it before But if Tenant in Taile make a Lease pur auter vie the Remainder to the Donor this vests a new Fee in him because that by the discontinuance he devested the ancient Fee out of him and gave him a new Fee-Simple by Marvine But Knightly denied this to be Law and that there should not be a new Fee-Simple in the Donor because then he should take a Fee and loose a Fee by the same Livery at an instant which cannot be ideo quaere Dyer 8. a. 9. a. Slander A. THE Attorney of B. brought an Action against C. for saying to B. Your Attorney is a bribing Knave and hath taken Twenty Pound of you to cozen me Judge Warburton held the Words not Actionable for an Attorney cannot take a Bribe of his own Client But Hobart said he might when the reward exceeds measure and the end against Justice as to raze a Record c. and Hob. says after he had spoken Justice Warburton began to stagger in his opinion and so the Plaintiff had Judgment Hob. 8 9. and 1 Roll. 53. Infant AN Infant brought an Action of Trespass by her Guardian the Defendant pleads that the Plaintiff was above Sixteen Years old and agreed for 6 d. in Hand paid that the Defendant have licence to take two Ounces of her Hair to which the Plaintiff demurred and adjudged for her for an Infant cannot licence tho' she may agree with the Barber to be trimmed 3 Keb. 369. Scroggam against Stewardson Trespass for shaking a Sword at him A WOMAN shook a Sword in a Cutler's Shop against the Plaintiff being on the other side of the Street and in Trespass of Assault and Battery there was a Verdict of the Assault and not guilty of the Battery 'T was prayed to give no more Costs than Damages and so granted which was a Noble 3 Keb. 283. Smith and Newsam Where a Man shall be forced to spend his Money against himself I. S. PRAYED a Prohibition to the Ecclesiastical Court at Salisbury because his Wife Sued him there to be separated propter saevitiam and Sentence was given for him and he enforced to pay all the Costs for his Wife afterwards she appealed and because he would not answer the Appeal against himself and pay for the transmitting of the Record he was excommunicated and now prayed a Prohibition it was thought by the Court a very hard case that he should be obliged to spend his Money against himself but because it was alledged that the Course was so in the Spiritual Court they would advise c. and proceedings stayed in the mean time Cro. Car. 16. Green's Case One Indicted for taking away a young Woman and Marrying her ONE Brown was Indicted on Stat. 3 H. VII cap. 2. for forcibly taking away and marrying the Daughter of one Sommers a City Orphan in the Custody of the Chamberlain Note The Child herself being about Fourteen Years old was held a good Witness to prove the Fact and the evidence was that she was worth 5000 l. that she was menaced by the Defendant in a Vizard and carried away in a Coach to Westminster and the next day with her own consent but caused by the precedent menace she married him but was not defiled having been surprised that day he was found guilty and had judgment to die and was accordingly executed 3 Keb. 193. See the Lady Fullwood's Case Cro. Car. 482 484 488 492. and Halès Pla. Cor. tit Felonies by Stat. that the taking a Woman against her Will and marrying her is Felony by the said Statute But such Maid Widow or Wife must have Lands Tenements or Goods or be Heir Apparent so that the Motive of taking away is Lucre and
Civil IN many cases the Law will not punish Capital offences in so high a degree except the Malice of the Will appears and this in favorem vitae but in Civil trespasses and wrongs of a lower nature the Law rather regards the damage of the Person injured than the Malice of the wrong-doer And therefore the Law makes a difference between killing one upon Malice prepensed and upon present Heat but if I give a Man slanderous Language and thereby damnify hi in his Name and Credit it is not material whether I use them upon sudden Choler and Provocation or of set Malice for in an Action upon the Case I shall render Damages alike So if a Man be killed by Misadventure as by an Arrow at Butts it is pardoned of course but if a Man be hurt or maimed only an Action of Trespass lies tho' it is done against the Parties Will who shall be punished in the Law as deeply as if it had been done malitiously Hob. 134. the Case of Weaver and Ward So if Baron and Feme commit a Felony together she is neither principal nor accessory in respect of her obedience to her Husband's Will but if they joyn in committing a Trespass upon Land or c. the Action may be brought against them both See Dalton 104. that if Husband and Wife do both a Felony it is Felony in both and both arraigned for it But Hales in his Pla. Coron says Nota that Books old and latter and practice is otherwise fol. 65. If an Infant within years of Discretion or a Mad-man kill another he shall not be impeached for it but if they put out a Man's Eye or do him any corporal hurt he shall be punished in Trespass Hob. 134 and Bac. Elem. 32. One born Deaf and Dumb kills another IF one that is Dumb killeth a Man it it is Felony yet Quaere how he shall be arraigned Dalton cap. 147. pag. 351. A Man born Deaf and Dumb kills another that is no Felony for he can't know whether he did evil or no neither can he have a felonious intent Otherwise if not born so ib. See Bro. Coron 101. and 217. that a Man which can neither hear nor speak may commit Felony and shall be imprisoned c. A Release of a right to one that hath neither Freehold in Deed or in Law yet good THE Demandant may release to the Vouchee and yet the Vouchee hath nothing in the Land but the reason is because when the Vouchee entreth into the Warranty he becomes Tenant to the Demandant and may render the Land to him in respect of the Privity 1 Inst 265. b. If the Tenant alien hanging the Praecipe the Release of the Demandant to the Tenant to the Praecipe is good and yet he hath nothing in the Land ibid. If a Disseisor lets the Land for Life the Disseisee may release all his right to the Disseisor in reversion tho' he has nothing in the Freehold because he hath an Estate in him viz. the Reversion Lit. Sect. 449. Curtesie of England IF a Woman seised of Lands in Fee takes Husband and by him is big with Child and in her Travail dies and the Child is ripped out of her Body alive yet shall not the Husband be Tenant by the Curtesie because the Child was not born during the Marriage nor in the life time of the Wife but in the mean time the Land descended and in pleading he must alledge that he had Issue during the Marriage 1 Inst 29. b. Co. 8. 35. a. b. in Pain 's Case A Secret of Law LITTLETON says In every Case where a Man takes a Wife seised of such an Estate of Tenements c. as his Issue by her may by possibility inherit As Heir to the Wife in such case after her Death he shall have 'em by the Curtesie of England and otherwise not In the Words As Heir to the Wife my Lord Coke has discovered a Secret of Law for except the Wife be actually seised the Heir shall not make himself Heir to the Wife which is the reason that a Man shall not be Tenant by the Curtesie of a Seisin in Law 1 Inst 40. a. Co. 8. 34. in Paine 's Case Another reason is because it lies always in his Power to reduce the Seisin in Law by his entry to an a actual Seisin and so it shall be accounted his own laches for it is otherwise in case of Rents and Advowsons where if the Wife die before the Rent became due or the Church void yet the Husband shall hold by Curtesie because he could by no Industry attain to any other Seisin which is likewise the reason why a Woman shall be endowed of a Seisin in Law of Lands because it lies not in her power to reduce it to an actual Seisin Corporalis injuria non recipit aestimationem de futuro THE Law in many Cases that concern Lands or Goods deprives a Man of his present remedy and turns him over to a farther circuit of remedy rather than to suffer an Inconvenience but if it be a question of personal Pain the Law will not compel him to sustain it and expect remedy because it holdeth no damage that may be given a sufficient recompence for a Corporal wrong Therefore if one menace me in my Goods and that he will burn certain Evidences of my Land which he has in his Hand if I will not make unto him a Bond yet if I enter into Bond by this Terror I cannot avoid it by Plea because the Law holds it an Inconvenience to avoid a specialty by such matter of Averment and therefore I am put to my Action against such Menacer but if he restrain my Person or threaten to beat me or burn my House which is a safety and protection to my Person and upon such menace or duress I make a Deed I shall avoid it by Plea So if a Trespasser drive my Cattle over the ground of I. S. and I pursue to rescue them yet am I a Trespasser to I. S. but if one assault my Person and I fly over anothers Ground I am no Trespasser So if the Sheriff make a false return that I am summoned whereby I lose my Land yet because of the inconvenience of drawing all things to incertainty and delay if the Sheriff's return should not be credited I am excluded of my Averment against it and am put to my Action of Deceit against the Sheriff and Summoners But if the Sheriff upon a Capias return a Cepi Corpus quod est lauguidus in prisona there I may come in and falsifie the return to save my Imprisonment 5 Edw. IV. 80. 3 H. VI. 3. Bac. Elem. 29 30. 1. Roll 92. Felony and Chancemedley PLAYING at Hand-Sword Bucklers Foot Ball Wrestling and the like whereby one of them receives hurt and dies thereof within a Year and a Day In these Cases some hold that this is Felony of Death others that they shall have their Pardon of course as
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
Persons would carry their Estates in their Pockets Therefore Keeling said If one lose 1000 l. in ready Money and also give Bond for 100 l. it is not within the Statute Two Joynt-Tenants hanged in one Cart the Survivor's Wife demands Dower IN a Writ of Dower the Title of the Feme to recover Dower was this Father and Son were Joint-Tenants to them and the Heirs of the Son they committed Felony and were both hanged in one Cart but because the Son as it was deposed by Witnesses did survive as appeared by some Tokens viz. his shaking his Legs his Wife thereupon demanded Dower and upon issue nunques seisie que Dower it was found for her Cro. Eliz. 503. For the better understanding of which Case I shall give you the following Opinion If there be two Joint-Tenants in Fee and one of 'em is attainted of Felony and then the other dies in the Life of him that was attainted his part shall survive to him that was attainted by Brampston in the Case of Harris and Wardell 2 Roll. 88. and he held that the Lord of whom the Lands are holden should not have this part by Attainder if he were afterwards pardoned But Berkley conceived that he should forfeit by his Attainder all the Land which comes to him during his Attainder and so the Lord should have this Moiety also A. and B. joint-Joint-Tenants A. is attainted and hanged yet there is no severance of the Jointure but the Land shall survive to B. untill the Lord enter for the forfeiture Harris and Wardell's Case 2 Roll. 88. Plea in Bar of Dower A WOMAN brought a Writ of Dower in Kent and demanded the third part of certain Lands whereof her Husband was seised the Tenant pleaded in Barr That the Lands were of the nature of Gavelkind whereof by Custome she is to have a Moiety for her Dower and adjudged a good Plea in Barr quod nota Savil's Rep. 91. Where a Right of Free-hold shall drown in a Chattel IF a Disseisor make a Lease for Years the Disseisee cannot release to him because he hath no Estate of Free-hold And yet in some case a right of Free-hold shall drown in a Chattel as if a Feme hath a right of Dower she may release to the Guardian in Chivalry and her right of Free-hold shall drown in the Chattel because the Writ of Dower lies against him and the Heir shall take advantage of it 1 Inst 266. a. Coparceners but one Heir A. MAKES a gift in Tail reserving 2 s. Rent to himself during his Life and if he die his Heir within age then a Rent of 20 s. to his Heirs for ever A. dies having Issue two Daughters one of full age the other within age here the Donee shall hold by Fealty only inasmuch as the one Daughter as well as the other is his Heir and both of 'em make but one Heir ergò his Heir is not within age neither is his Heir in that Case of full Age But if the reservation had been and if he die his Heir neither within age nor of full age there it had been good note if it begins not in his next heir it shall never begin because the precedency is not performed 1 Inst 164. a. Special Tail LAND is given to I. S. and to the Heirs which he shall engender on the Body of an English Woman he Marries a French Woman and she dies and then he Marries an English Woman this is now a good Estate in special Tail by Cataline Owen's Rep. 32. One Tenant in Common takes all IF there be two Tenants in Common of Timber or other Goods and one of them takes the Timber and puts it into his several Land the other cannot justifie his entry into the Land to retake it for inasmuch as in Law 't was no tort for him to take it all to his own use by reason of the Trust that is between them the other cannot justifie a Trespass in the Land to retake it but must take it when he may without doing a Trespass 2 Roll. 566. Masters and Polley One Ship takes another in the presence of a third THE Civil Law is That if two Ships meet at Sea together altho' they went not forth as Consorts yet if one of them in the presence of the other take a Ship with Goods in it the other shall have a Moiety of the Ship and Goods taken for her presence there at the time of the taking was a Terror to the Ship which is taken sine quo the other Ship could not so easily have taken her 2 Leon. 182. Tenant in Common with himself IF Lands be given to John Bishop of Norwich and his Successors and to John Overal Doctor of Divinity and his Heirs being one and the same Person he is Tenant in Common with himself for he takes both in his natural and politique capacity which in such case cannot stand in Jointure therefore it is a Tenancy in common But note This Rule holds not in Chattels reals and personals for if a Lease for Years be made or a Ward granted to a Bishop and a Secular Man or if Goods he granted to them they are Joint-Tenants because they take not in their politique capacity 1 Inst 190. a. See 2 Roll. 91. between the Dean and Chapter of St. Peter's of York and Power One entred into an obligation to the Dean and Chapter of York and to A. B. and C. D. of 2000 Marks the Dean and Chapter are Tenants in Common with A. B. and C. D. for that the Body politique having a several capacity from the Body natural cannot take in Jointure with it Vide Ley's Rep. 82 acc ' that if an Obligation be made to I. S. and a Corporation and I. S. die the Obligation shall not survive but the Corporation and the Executors of I. S. must join in Suit Where one may vouch himself A MAN shall not regularly vouch himself as Assignee of a Fee-simple for the Law will not suffer things inutile and unprofitable and yet if the Father be enfeoffed with warranty to him and his Heirs and he enfeoffeth his Heir apparent in Fee and dies he as it is said shall vouch himself and the Heir in Borough English by reason that the Act in Law determined the Warranty between the Father and the Son 1 Inst 390. a. See Plowd Com. fol. 7. b. Manxel's Case that if a Father being enfeoffed with warranty enfeoffeth his Son and Heir with warranty and dies the Son in a Praecipe brought against him may vouch the Feoffor of his Father for the Law will not suffer him to vouch himself and when he comes in as Vouchee then to deraign the first Warranty for the circuit of Voucher Vide Finch's Law 55. A. mixes his Money with B's at play and B. keeps it all A. AND B. being at Play A. thrust his Money into B's heap and mixed it and B. kept it all whereupon they striving for the Money A. brought Trespass of
it he answered he was sent thither by the Lessor but shewed not any authority to prove his message nor was he known to be Receiver or Servant to the Lessor Upon the whole matter the Judges were of opinion that if any would swear this to be true the Lessor ought not to enter whereupon one was immediately sworn who deposed that this Person was a Man of ill fame and the Notes of the Records of the Out-lawries were shewn and so the Lessee was discharged quod nota Moor 141. numb 282. Verba fortius accipiuntur contra proferentem IF I grant a Rent of ten Pounds to Baron and Feme and if the Baron die that the Feme shall have three Pounds Rent here because these Words rest ambiguous whether I intend three Pounds by way of increase or three Pounds by way of restraint and abatement of the former Rent of ten Pounds it shall be taken strongliest against me that am the Grantor that it is three Pounds addition to the Ten But if I had let Land to Baron and Feme for three Lives reserving ten Pounds per annum and if the Baron die reserving three Pound this shall be taken contrary to the former Case to abridge my Rent only to three Pound 8 Ass p. 10. See Bacon's Elem. 11. Deed good without Delivery 'T IS commonly said that every Deed ought to have Writing Sealing and Delivery and when any thing passeth from one that hath no Understanding but by his hearing as a Blind and unlettered Man the Deed ought to have Reading too yet Note In some Case a Deed shall be good without any Delivery as the Deed of a Corporation aggregate for the affixing of their common Seal gives perfection to it without any Delivery as if a Dean and Chapter put their Chapter Seal to a Deed it is a perfect Deed without any more Davies Rep. 44. b. Cro. Eliz. 167. 2 Roll. 23. Vide Savil 49. where Manwood is of the same opinion viz. that a Confirmation by the Dean and Chapter to confirm Leases made by the Bishop needs not any Delivery of the Deed but that 't is good if it be Sealed tho' it remain continually in the Chapter-House but Baron Shute held that such Deed is not of any effect without Delivery and 't is there left a Quaere Slander Daffidowndilly ONE said in the North-Country that I. S. was a Daffidowndilly and adjudged actionanable because by this Word is meant there an Ambidexter being a Flower of party-colour Hetl. 123. Noy 98. the end See Cro. Eliz. 914. Thus to say of one in Devonshire and thereabouts He is a Healer of Felons will bear an Action for it is taken there for a hider or concealer of Felons and they usually say The Healer is as bad as the Stealer Yelv. 153. Noy 133. So to say of one in some Countries He hath strained a Mare where it is taken for He hath stoln a Mare or Buggered a Mare Yelv. 153. March pl. 3. 2. Buls 146. Cro. Eliz. 250. Moor 419. ca. 574. So to say of a Man in Northumberland Westmorland c. He is an out-putter where 't is meant a Horse-stealer 2 Buls 146. See Hob. in several places for such particular Words Where one shall lose his Goods without any default in him THERE be divers Cases saith St. Jermyn where one shall lose his Goods and no default in him as where Beasts stray away from a Man and are taken up and proclaimed and the Owner has not heard of 'em within the Year and the Day tho' he made sufficient diligence to have heard of 'em yet the Goods are forfeiteâ—… and no default in him So it is wheâ—… one Man kills another with the Sword 〈…〉 I. S. the Sword shall be forfeit as a Deâ—…dand and yet no default is in the owneâ—… Dr. and Stud lib. 2. cap. 51. Note In case of Deodands as to things fixed to the Freehold the Law is taken to be clear otherwise now than it was when Briton and Horne wrote who say That if a Man fall from a Mill House or Tree these shall be forfeited for the Law will not suffe that a Man shall lose his Inheritance by another's negligence where there is no default in himself Tenant for Life makes a Lease for Years and after enters upon the Termor and commits waste and the Lessor recovers the Lessee shall lose his Term. Tenant by Curtesie A SEISIN in Law of Lands in Fee descends to a Feme Covert and the Lands are in the County of York but the Husband and Wife are dwelling in Essex and the Wife dies within a Day after the descent so that the Husband could not enter during the Coverture for the shortness of time yet it is said he shall not be Tenant by the Curtesie and yet there is no default in him according to common pretence but they say he might have spoken before the Ancestor's Death to one dwelling near the place where the Lands lay to enter in his Wife 's right immediately after the Ancestor's Death Perk. Sect. 470. See Perk. Sect. 469. that altho' the Day of payment of the Rent do incurr in the Life of the Wife and she die before any demand made of the Rent by the Husband that yet there he shall be Tenant by the Curtesie Exchange EXCHANGE of Land in Ireland for Land in England is good 10 E. 3. 42. Palmer's Rep 459. A Man Indicted for maiming himself ONE Wright a young strong and lusty Rogue caused his Companion to strike off his left Hand to make himself impotent and have thereby the more colour to beg or be relieved without putting himself to any labour both of 'em were indicted fined and ransomed for it This was in my Lord Coke's Circuit Anno 11. Jac. I. with the opinion of the other Judges 1 Inst 127. a. b. The life and members of every Subject are under the safeguard and protection of the King to serve Him and their Country when occasion shall be offered which is the reason that a Lord could not maim his Villain but the King should punish him for maiming his Subject by Fine Ransome and Imprisonment c. because hereby he hath dissabled him to do the King service ibid. One Fined for disturbing of the Court. ONE Coxe was Fined ad Curiam visus Franc. Plagii Baronis because he put on his Hat in the Presence and in Contempt of the Court and of the Lord and said He cared not what He could do and hindered the Business of the Court Incivilitèr se gerens 1 Keb. 451. and 465. Words Treason ARTHUR Crohagan an Irishman was arraigned of Treason for speaking these Words at Lisbon I will Kill the King inuendo Dominum Carolum Regem Angliae if I may come unto him and about Two Years after he came into England for the same purpose He pleading Not Guilty was tried by a Middlesex Jury and 't was directly proved by two Merchants that he spake those Words on