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
THE Young Lawyer 's RECREATION BEING A CHOICE COLLECTION Of several Pleasant Cases Passages and Customs IN THE LAW For the Entertainment as well as Profit of the Reader Si quid novisti Dulcius Istis Candidus imperti si non his utere mecum LONDON Printed for Samuel Briscoe over-against Will 's Coffee-House in Russel-Street Covent-Garden 1694. TO THE READER Courteous Reader THO' no Profession is more Honorable and Profitable than that of the Law witness the many great Titles and vast Estates acquired thereby yet perhaps it is of all other Studies the least Pleasant and Entertaining which no doubt is the Reason that so few are contented with the Honour to know It without the other Encouragement and to such as have That I do not say it is Vnpleasant or if it be yet when the Pill is Gilt it is easily swallowed However in some sence every Man is a Lawyer that is supposed to be so so Charitable is the Law to allow Ignorance in none because every Man would make that his Excuse and none could tell how to confute him And as the Lord Vaughan says it is irrational to suppose Men ignorant of those Laws for the breach of which they are to be punished But how Intricate soever this Study may seem in general it cannot be imagined but that among so great variety of Cases there will be found some of a double Capacity as well to please as to instruct Of this sort Reader is the Collection I here present you with taken from the Reports and other Authentick Books of Law all along most faithfully quoted and referred to Some may Object against the Method or indeed that I have used none but this let the Table answer there being many Things that follow naturally enough which yet cannot properly be reduced under the same Head my Design herein being chiefly to Delight which I thought cou'd not be so effectually done any other way by Your very humble Servant Philonomus THE TABLE A ABatement of Writs Page 19 178 179 192 Accessary Page 35 36 144. Action Page 59. Action upon the Case Page 59 140 164 167 168 180. Addition Page 190 192. Admiralty Page 136 137 170. Advowson Page 189. Age Page 3 15. Agent and Patient Page 50 51. Alien Page 122. Arrest Page 85 163 198. Assault Page 202. Attainder Page 46. Attaint Page 38 39 79. Attorney Page 191. Atturnment Page 77. Averment Page 101. Avoidance Page 86 87. Award Page 77. B. Baron and Feme Page 57 97 111 113 123 169 182 183 184 185 193 194 195 204 205. Barrister Page 110. Bastardy Page 103 108 117 118 119. Battail Page 64 65. Bond Page 76 82 83 101 164 195. Brothel-houses Page 34. Buggery Page 10 11 194. Burglary Page 12 59 60. C Certainty Page 40 41. Challenge Page 52 60 c. 66. Champion Page 64 65. Chancemedley Page 9 102. Chancery Page 111. Charter Page 54. Chattels Page 19 134 204. Cockpit Page 153. Commitment Page 165 166. Common and Commoner Page 180. Condition Page 41 42. Confirmation Page 119 120. Contract Page 42 85. 168. Coparceners Page 135. Copyhold Page 154. Costs Page 8. Counsellor and Client Page 126. Creation of a Gentleman Page 191. Customes Page 130 131. Cutpurse Page 32. D Deed Page 147. 196. Delivery Page 147. Demurrer Page 144. Deodand Page 17. Descent Page 88. Devise Page 20 74 88 94 95 178. Discontinuance Page 47 48 181. Distress Page 77 157 206. Divorce Page 4 c. 113. Dower Page 133 134. Drinking Page 95 96. Duel Page 60 61 62 63 c. 66 c. E Election Page 201 202. Enrollment Page 196. Error Page 78 79. Estate Page 43. Evidence Page 109 110 183. Exchange Page 150. Excuse Page 44 45. Execution Page 26 27 28 46 89 90. Executor Page 129. Extinguishment Page 125 188. F Felo de se Page 24 25 Felony Page 4 5 c. 12 14 17 18 22 23 28 37 58 97 Fine Page 102 151 153. Fine of Lands Page 52 121 123 124 177. Forfeiture Page 106 154. Forgery Page 75. Formedon Page 53. Freehold Page 43 134. G Gift Page 24 76 78. Good Behaviour Page 202 203. Goods Page 22 141 148 149. Grants Page 46 47 76 86 146 175 176. H Hangings Page 186. Heir Page 19 88 135. I Ideot Page 2 3. Jews Page 114 115. Ignorance Vide the Preface Indictment Page 4 c. 10 11 13 23 24 c. 32 33 58 150 158 159 160 194. Infant Page 17 52 53 56 86 97. Intention Page 85. Jointenants Page 133. Judge Page 50 158 159. Judgment Page 45 46 48 49. Jury Page 74 109. Justification Page 102 103 104 139 143 167. Justs Page 64. L Law Vide Preface c. Page 105. Presumption of Law Page 105 106. Lease Page 39 40 41 78 119 188. Legacy Page 18 72 73 80 87 88 94 95 141. Livery of Seism Page 53 54 55 77. Lunatick Vide Non Compos Mentis M Manslaughter Page 70 71 72 92. Market Overt Page 142. Marriage Page 1 2 3 4 5 108. Master and Servant Page 169 171 172. Masters in Chancery Page 111. Monk Page 46. 47. Murder Page 70 71 111 112 115. N Names Page 19 81 178 179. Night Page 77. Non Compos Mentis Page 16 25 26. Non Obstante Page 75. Nonsuit Page 108. Not Guilty Page 200. Nuisance Page 153 154. O Oath Page 114 116 124. Offences Page 96 97. Outlawry Page 92 93 94 107. P Patent Page 159. Payment Page 185. Pictures Page 186. Play Page 132 139 140 193. Plea in Barr Page 14 134 173. Possession Page 173. Practice Page 83. Prerogative Page 112. Presentation Page 189 201. Prince Committed Page 165 166. Priviledge Page 186. Prohibition Page 57 116 190 204. Promise Page 195. Property Page 142 189 190. Provocation to a Challenge Page 66. Q. Queen Page 166. Queen Dowager Page 167 R Rape Page 12 13 14 15 16. Common Recovery Page 122 184. Release Page 98. Remainder Page 20 21 107. Remitter Page 181. Rent Page 105 145 146. Replevin Page 155 156. Reversion Page 47. Rings Page 128. Robbery Page 30 31 32. Ropedancing Page 153 154. S Sheriff Page 50 91 101 198. Simony Page 187 189. Slander Page 56 86 91 148 156 160 161 162 173 174 175 186 199 200 203 204. Sodomy Vide Buggery Stews Vide Brothel-Houses Surrender Page 39 40. T Tail Page 136 177. Tenant in Common Page 22 136 137. Tenant by Curtesie Page 99 100 149 150. Tender Page 197. River Thames Page 84. Trades Page 82 83 158 159. Treason Page 26 29 151 152 167. Trespass Page 43 44 57 96 97 101 103 104 139 157 169 180. Trick Page 84. Trover Page 193. Turnaments Page 64. V Uncertainty Page 40 41 45. Voucher Page 138. Uses Page 43. W Wife Page 130 168 182 183 184 185 193 204. Will Page 43 130. Witches Page 18 156 157. Witness Page 124 127 128 197. Woman Bailiff Page 24. Words Page 29 30 70 71 151 152
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.
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