Note Where Rape is there must be penetratio emissio Seminis in the Case Co. 12. 37. For altho' there be emissio Seminis yet if there be no penetration that is res in re it is no Rape for the Words of the Indictment be Carnaliter cognovit c. 3 Inst 60. But emissio Seminis may be an Evidence in case of Rape of Penetration 3 Inst 59. See Hutton's Rep. 116. in the Lord Audley's Case At what Age a Woman may be Ravished THE doubt that was made in 14 Eliz. Dyer f. 304. before at what age a Woman Child might be Ravished was the cause of the making of the Act of 18 Eliz. cap. 6. for plain declaration of the Law That if any Person should unlawfully know and abuse any Woman-Child under the age of Ten Years every such unlawful and carnal Knowledge should be Felony and the offender therein being duly convicted shall suffer as a Felon without allowance of Clegry 3 Inst 60. A Woman Attainted Ravished IF a Woman attainted be Ravished after Pardon she shall have an Appeal of Rape 3 Inst 215. We read in Story that chast Lucretia being Ravished she was found in extream heaviness and it was demanded of her Salvan ' She answered Quomodo Mulier salva esse potest laesâ Pudicitiâ And yet thereof it is truly said Duo fuerunt unus commisit Adulterium Non compos Mentis A MAN Non sanae Memoriae gives to himself a mortal Wound and before he dies he becomes of sound Memory and after dies of this Wound here he shall not be felo de se but if one gives himself such a Wound while he is of sound Mind and after becomes non sanae Memoriae and dies thereof there he shall be felo de se Deodand IF a Man fall from a Ship Cart or other Vessel in aqua dulci fresh Water 't is a Deodand otherwise in salt Water being any Arm of the Sea tho' it be in the body of the County because of the dangers it is subject to upon the raging Waves in Windy and Tempestous Weather 3. Inst 58. If an Infant within the age of discretion scil Fourteen be slain by a fall from a Cart Horse Mill c. no Deodand but if slain by a Horse Bull or c. then a Deodand ibid. A Lodger kills one that assaults a House no Felony IF one break a House with intent to rob it or kill any therein and one within the House tho' not the Master but a Lodger or a Sojourner kill him this is no Felony Cro. Car. 544. Cooper's Case Physician kills his Patient IF one that is no Physician allowed take upon him to give Physick and kill his Patient this is Felony but if he be a Physician allowed and do so out of Ignorance or Negligence Contra. Stamf. lib. 1. pag. 16. Fitz. Coron 163. To provoke Love by Witchcraft the Second offence Felony IF one shall the Second time use any Conjuration or Witchcraft to provoke Love in a Maid this will be Felony by 1 Jac. cap. 12. Servant kills one that hath killed his Master IF one hath killed my Master and I in a hasty and fresh pursuit of him kill him no Felony Kytch 25. If he be a Thief 21 H. 7. 41. Two Persons of the same Name pretend to a Legacy IF there be a dispute between two Persons pretending to the same Legacy as if the Devise be to Thomas Styles without other distinction of the Person and there be two of that Name of equal respect with the Testator or both alike his Friends or Acquaintance here the Executor hath his election to deliver the Legacy to which of them he please Yet some are of opinion that in such case the Legacy is void by reason of uncertainty Orphan's Legacy 441. 10. Faith and Troth A WRIT was ad Respondendum I. S. Fidei Uxori ejus The Defendant pleaded in Abatement of the Writ because the Name of the Wife was Faith in English and pretended it should be Fidi Rhodes said he knew a Wife who was called Troth and Named Trothia in Latin and well And the Writ was adjudged good in the former Case Goldsb Rep. fol. 86. Where Chattels shall go to the Heir SEE some instances hereof in Dr. and Stud. lib. 2. cap. 12. and 1 Inst 8. a. in fine 18. b. in med and 185. b. fine and the office of an Executor 81. and 84. If a Man be seized of a House in Fee and a Window or Door of the House be taken off to be mended during which the owner of the House dies yet his Heir shall have them by descent and not the Executors for tho' in fact they are for a time divided from the House yet in judgment of Law they always remain parcel of it 1 Rol. Rep. 102. Devise good to him in Remainder tho' the particular Tenant die before the Testator ALTHO' where a Legatary dies before the Testator a Bequest of Goods or Chattels to such Legatee becomes void to his Executors yet if there be a Devise of Land to one for Life the Remainder to another in tail and the Devisee for Life die before the Testator the Devise of the remainder continues good See Perk. Sect. 567 568. Where a Remainder may depend without a particular Estate A LEASE is made to A. for the Life of B. the remainder to C. in Fee A. dies now before an Occupant enters here is a Remainder without a particulur Estate and yet good 1. Inst 298. a. in medio Which Case disproves the opinion of Justice Clinch Owen's Rep. 39. viz. That every Occupant ought to be in possession at the time of the death of the Tenant and that otherwise the Law casts the Interest upon him in the Reversion which opinion is there likewise denied by Gawdy and Chute Justices And as my Lord Coke says He is in Law called an Occupant because his Title is by his first Occupation which sure cannot be supposed in the time of the particular Tenant A Remainder is defined to be the residue of an Estate in Land depending upon a particular Estate and created together with it yet as it may in some case depend without a particular Estate So the continuance of the particular Estate is not always requisite to support the Remainder as if a Lease be limitted to an Infant the Remainder over and after the Infant refuses yet the Remainder is good So if a Copy-holder in Fee surrender to the use of the Lord for Life the Remainder over So if Tenant for Life and he in the reversion grant their Estate to the Tenant himself for Life the Remainder over it is good 1. Siderf 360. A Remainder vesting in an Instant yet good A RENT is granted to the Tenant of the Land for Life the Remainder in Fee this is a good Remainder tho' the particular Estate continued not for eo instante that he took the particular Estate eo instante the Remainder vested and the
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
in such manner as shall be taken by the Title Fitzh N. B. 107 A. So if one hath a Rent as Forrester in Fee of such a Forrest time out of mind and in Assise he makes Title that he hath had a Rent out of that Land time out of mind c. without saying As Forrester in Fee c. and it is found for him the other shall have an Attaint tho' the Words of the Verdict be true for he hath not had such Rent by prescription as shall be intended and taken by the Title he has made ibid. Where the taking of a Second Lease shall be no present Surrender of a former A LESSEE for 21 Years took a Lease of the same Lands for 40 Years to begin immediately after the death of I. S. it was holden that the same was not any present Surrender of the first Term but if I. S. die within the term then it is a Surrender for it may be he will survive it 4 Leon. 30. Surrender of Part. A LESSEE for years of Land accepts a new Lease by Indenture of part of the same Land it is a Surrender only for this part and not for all Fish and Campion's Case 2 Roll 498. the last Case A Lessee for years grants all his Estate to the Lessor excepting one day at the end of the Term yet this is not any Surrender for this day is a Reversion and so shall hinder the Surrender as strongly as if it had been 20 Years adjudged between Bacon and Waller 2 Roll. 498. Where there may be a Certainty in an Uncertainty THERE is a Maxim in Law That no Distress can be taken for Services that are not put into Certainty or may be reduced to it because upon the Avowry Damages cannot be recovered for what neither has nor can be reduced to any Certainty Yet in some Cases there may be a Certainty in Uncertainty as one may hold of his Lord to Shear all the Sheep depasturing within the Lord's Mannor which is certain enough tho' he has sometime a greater number and sometime a lesser there yet this uncertainty being referred to the Mannor which is Certain the Lord may destrain for it 1 Inst 96. a. A Lease for 21 Years if I. S. live so long is a good Lease for Years yet is certain in uncertainty for the Life of I. S. is uncertain 1 Inst 45. b. Condition Broken IF A. be obliged to permit B. to have ingress into his House he ought to have a common entrance at the usual door and shall not be put to enter at a Hole a back-Door or a Chimney And if they leave the common Door open and make a Ditch so that B. cannot enter without skipping the condition is broken So if I am obliged to suffer I. S. to have a way over my Land and when I see him coming I take him by the Sleeve and say to him Come not there for if you do I will pull you by the Ears the Condition is broken Latch 47. Note One made a Lease of a House with free liberty of ingress c. through part of the Lessor's House and 't was ruled That in this Case the Lessee must keep good hours and the Lessor is not bound to leave the Doors open for his coming in at One or Two of the Clook at Night but may shut up his Doors Modern Rep. 27. Contract THE Lady Kent Articled with Sir Edward Herbert that he should come to her when she sent for him and stay with her as long as she would have him to which he set his Hand Then he Articled with her that he should go away when he pleased and stay away as long as he pleased to which she set her Hand This says Selden is the Epitome of all the Contracts in the World betwixt Man and Man betwixt Prince and Subject they keep them as long as they like them and no longer Conditional Bargain I. S. SENT a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him receiving for them a certain Summ of Money the Merchant sent the things by the Carrier without receiving the Money The Court held the Buyer should not be charged for the Money for it was a conditional Bargain and the folly of the Merchant to trust the Carrier with the Wares 4 Leon. 7. May's Case An Estate for Life determinable at Will IF the King grant an Office to one at Will and grant him a Rent for the exercise thereof for the term of his Life this is determinable upon the determination of the Office 1 Inst 42. a. Finche's Law 8. 9. Two Uses in Esse of the same Land at the same time IF A. disseise one to the use of B. and A. bargains and sells the Land for Money to C. C. hath an Use and here be two Uses of one Land but of several Natures the one viz. upon the Bargain and Sale to be executed by the Statute 27 H. VIII and the other not 1 Inst 271. b. 272. a. Where one shall be punished in Trespass for hurting a Man that shall not be punished for killing a Man FELONY must be done Animo Felonico and therefore if a Lunatick kill a Man 't is no Felony because he is sine Animo during his Lunacy However if a Lunatick hurt a Person he shall be answerable in Trespass which tends only to give damages according to hurt or loss and therefore no Man shall be dispensed with for a Trespass for this is the nature of an Excuse and not of a Justification prout ei benè licuit except it may be judged utterly without this Fault as if one by force take my Hand and strike you c. Hob. 134. Weaver and Ward Cases of Excuse ALL Laws admit certain Cases of just Excuse when they are offended in Letter where the Offender is under necessity either of Compulsion or Inconvenience or else where he is under an invincible Ignorance or where the offence is by a meer Misfortune without Will or Purpose or where there is a meer Impotency to that that is required By Compulsion as in the case of Lucretia with young Tarquin of whom St. Austin says Duo fuerunt unus commisit Adulterium and thereupon makes the Dilemma Si casta quare trucidata Sin minus quare laudata Necessity of avoiding greater Inconvenience as where one kills a Thief or a Burgler in defence of his Person or House the binding and beating of a Person Lunatick removing of a Person Leprous In Ignorance as in the case of Jacob and Leah Such also is the excuse of a Deed read amiss to one that cannot read or reported to one that is blind Lunacy in him that kills a Man Of Impotency as in the case of Mephibosheth accused by his Servant Ziba to David and by himself excused by his Impotency Vide Hob. 96. Uncertainty A LEASE is made to a Man and a Woman for their Lives upon condition that which of them two shall
in his Shop so as he died This was agreed not to be within the Statute of Stabbing but that he might have his Clergy Vide 1 Siderf 277. the Lord Morley's Case where it was agreed by some of the Judges That Words without Blows is not any Provocation because it is not answerable but that to make a Provocation to fight there must be Blows 'T was likewise agreed by them That if there be a Provocation in a House whereupon they fight before that their Reason had gained a Predominance over their Passion and one is killed this is but Manslaughter But that if after the Provocation given they say that this is not a convenient Place and so have reason to Judge of the Conveniency and appoint another Place tho' they fight presently after if one be killed this is Murther for the Circumstance shews their Temper A. and B. fall out A. saith he will not strike but will give B. a Pot of Ale to touch him B. strikes A. kills him Murder Hales Pla. Cor. tit Felonies A. distorts his Mouth and laughs at B. who thereupon kills him Murder ibid and cites 42 El. Brame's Case If there be a quarrel between A. and B. and A. Challenges B. who declines it but at length upon importunity and to vindicate his reputation meets and fights and kills A. Murder 14. Jac. Taverner's Case A. and B. are in Malice A. challenges the Field B. refuses to meet but says he shall go to morrow to such a Town A. meets him and assaults him B. kills him Manslaughter and no Murder Hales ubi sup Two strive for the Wall and one kills the other Manslaughter Two play at Foils and one kills the other Manslaughter Sir John Chichester's Case ibid. Testator nods one a Legacy NO Words or Language or Signs almost but may serve for a Bequest provided that they be but sensible and intelligible in regard of that vast extent and latitude of Words which the Law allows Testators in making Wills and bequeathing Legacies Insomuch that tho' the Testator should quite hold his Peace and but nod thee a Legacy whether he can speak or not or whether asked thereunto or not the Legacy is good Understand not this of the Testator nodding between sleep and wake between sence and no sence but when by his nod he makes an intelligible sign of his mind and intention the reason hereof is because the Law more favours a Testator's Will than his Words Orphan's Legacy 444. 4. Legacy to a Child unborn IF a Legacy be given to a Child in the Womb and the birth prove monstrous i. e. very contrary to the common form and shape of Mankind as with a Crow's Beak instead of a Nose or with the Face of an Ass instead of a better in such an ill favoured case the Legacy is void Otherwise if 't is born only with some of the less principal Members imperfect or supernumerary as with half a Thumb or two Thumhs or six Fingers on a Hand or the like But if the Birth not accidentally be imperfect as to its integrals or defective as to its more noble and principal Parts and Members as but with one Eye or one Hand although the Creature hath Life the Legacy hath none for albeit an amplification of the natural form shall not prejudice yet a mutilation thereof will Note this extends not to Hermaphrodites who are not excluded a single capacity for that Sex which most prevails with them in nature shall likewise prevail in Law as to the Legacy bequeathed Orphan's Legacy 475. Devise IF a Testator devises a House to A. and after gives it by deed to B. and then buys it of B. again and dies and A. demands the House he cannot recover it unless he proves that the Testator by a new declaration of his Will intended he should have it So if a devised House be pulled down and another built by the Devisor in the same place the devise is void unless it can be proved that the Devisor intended otherwise Orphan's Legacy 449. 15. A Minister sworn of the Jury ONE Beecher a Gentleman of the Middle-Temple was returned in an Attaint and before the Return of the Pannel he became a Minister of the Church and at the day of the Return he appeared and prayed to be discharged according to the Privilege of those of the Ministry But the Court allowed not of his Prayer because he was a Lay-Man at the time of the Pannel made and so he was sworn 4 Leon. 190. Beecher's Case Forgery of a Deed. ONE Howel Gwin was convicted of Forging a Deed by putting a Dead Man's Hand unto it and condemned in 100 l. Fine and to stand on the Pillory two hours before the Hall Door Memorandum he cut off a dead Man's Hand and put a Pen and a Seal into it and so Signed Sealed and Delivered the Deed with the dead Hand and swore that he saw the Deed Sealed and Delivered Stiles Rep. 362 363. Non Obstante THE Clause of Non Obstante was first used by the King in his Grants and other Writings in the time of Henry III. about the Year 1252. Matthew Paris calls it an odious and detestable Clause and Roger de Thrusby then Justiciar fetching a deep Sigh at the fight hereof in the King's Grant cryed out of both the time and it saying It was a Stream derived from the Sulphureous Fountain of the Clergy Speed 530. Praesentia Corporis tollit errorem Nominis IF I give a Horse to I. D. being present and say unto him I. S. take this Horse 't is a good gift notwithstanding I call him by a wrong Name Otherwise if I deliver it to a Stranger to the use of I. S. where I meant I. D. So if I say to I. S. here I give you my Ring with the Ruby and deliver it with my Hand and the Ring bear a Diamond and no Ruby this is a good gift notwithstanding I name it amiss Veritas nominis tollit errorem Demonstrationis IF I grant Prata mea in Sale continentia 10. Acras and they contain 20 Acres the whole 20 pass If an obligation be made to I. S. filio haeredi G. S where indeed he is a Bastard yet this Bond is good So if I grant Land Episcopo nunc Londinensi qui me erudivit in pueritia 't is good tho' he never instructed me The same Rule holds of Denomination of Times and therefore if I oblige my self to do some personal Attendance upon A. on Innocent's day being the day of his Birth and A. were not born that day yet shall I attend Bacon's Elem. 87. 91. What Acts may be done in the Night AN Arbitriment made and delivered in Writing the last day after Sun Set is good enough for Judgments and Arbitriments require long Advice Finch's Law 72. and Cro. Eliz. 42. and 676. An Arbitration is a judicial Act which may be well done in the Night Goods may be distrained in the Night for damage feasant otherwise
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
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.
being Enemy and sometime after an English Merchant with a Ship named Little Richard retakes it from the Spaniard and the owner of the Ship sues for it in the Admiralty Court but a Prohibition was granted for that the Ship was gained by Battle of an Enemy and neither the King nor Admiral nor the Parties to whom the Property was before shall have it 2 Brownl 11. Weston's Case Master and Servant A SURGEON in consideration of a Summ of Money assumed to cure the Servant of I. S. of a hurt which he had in his Leg and afterwards applied unwholsome Medicines to it on purpose to make the cure the greater whereby I S. lost the Service of his Servant for a long time wherefore he brought an Action upon the Case against the Surgeon and recovered 1 Roll. 98. Everard and Hopkins If a Drawer in a Tavern sell Wine that is corrupt an Action upon the Case lies for this against the Master tho' he did not command his Servant to sell it to any Person in particular And no Action lies against the Drawer tho' he knew the Wine to be corrupt because he sells it only as Servant to another 1 Roll. 95. Vide Dr. and Stud. 285. that if one send his Servant to Market with a thing which he knows is defective to be sold to a certain Person and the Servant sells it to him an Action lies against the Master But if he send it to be sold generally to whom he can no Action of Deceit lies against the Master 1 Roll. 95. Accord ' If my Servant be cozened of my Money I may have an Action upon the Case for the deceit against the Cozener 1 Roll. 98. Paul Tracie's Case So I may justifie the beating of another in defence of my Servant for he is in a manner my Chattel 2 Roll. 546. the end The contrary admitted Palmer 54. See Owen 150. A Servant shall justifie the Battery of another in defence of his Master 2 Roll. 546. Quaere 14 H. VI. 24. b. Note Tho' in the Case of Felony if the Principal die or be pardoned before Attainder the Proceedings against the Accessary fail Co. 4. 43. b. yet in a Trespass if one command his Man to beat you and the Servant after he has beaten you dies yet your Action of Trespass stands good against the Master 17 H. IV. 19 Bac. Elem. 32. I. S. suffered a Soldier to get a Child upon the Body of his Maid-Servant and the Order of Sessions was that I. S. should contribute to half the charge of keeping it Curia 'T is not within the Stat. of 18 Eliz. and the Order was quashed Possession how to be Defended IN Trespass of Assault and Battery the Defendant pleaded De son Assault demesne the Plaintiff replied the Defendant would have forced his Horse from him wherefore he did Molliter insultum facere upon the Defendant in defence of his Possession to which the Defendant demurred Morton Justice Molliter insultum facere is a contradiction suppose you had said that Mollitèr you knocked him down Twisden you cannot justifie the heating a Man in defence of your Possession but you may say that you did molliter manus imponere c. Keeling You ought to have replied that you did Molliter manus imponere quae est eadem transgressio Curia Quer ' nil cap. per bill Mod. Rep. 36. and 1 Siderf 441. Jones and Tresilian Slander of a Counsellor at Law PETER Palmer of Lincoln's-Inn brought an Action upon the Case against Boyer and declared that he was an Utter-Barrester of the Law and got his living by practising the Law and was Steward of divers Courts and namely of one I. P. Esq and the Defendant praemissorum non ignarus to the intent to prejudice the Plaintiff in his good Name and Practice said of the Plaintiff these English Words viz. Peter Palmer is a paltry Lawyer and hath as much Law as a Jackanapes 't was moved in arrest that the Words would not maintain an Action because not slanderous for 't is not said He hath no more Law than hath a Jackanapes that had been Actionable for thereby he had abated the Opinion of his Learning but it is not so in this Case the Words being he hath as much Law as hath a Jackanapes which is no impeachment of his Learning for every Man that hath more Law than a Jackanapes hath as much Sed non allocatur for the Comparison is to be taken in the worst Sence and tantamounts that he hath no more Law than a Jackanapes which is a slander in his Profession whereby he acquires his Living Owen 17. Cro. Eliz. 342. Goldsb 126. Winch 40. Vide March fol. 60. where Judge Berkley saies it had been adjudged where one said of a Lawyer That he had as much Law as a Monkey that the Words were not Actionable because he hath as much Law and more also but if he had said He hath no more Law than a Monkey these Words were Actionable See Hetley 71. Words against an Attorney ACTION for these Words Is Martyn the Plaintiff your Attorney He is the Foolishest and Simplest Attorney towards the Law and if he doth not overthrow your Cause I will give you my Ears He is a Fooll and an Ass and adjudged for the Plaintiff for these Words touch him in his Place Cro. Eliz. 589. Slander against a Parson SUIT in the Spiritual Court by a Parson for saying of him That he was a Fool an Ass and a Goose for which upon Motion a Prohibition was granted for they are only Words of Choler as Pocky Faced Knave Jade and Quean and relate not to his Profession 3 Keb. 28. Newcombin and Kingerby Where Things shall not pass tho' granted by express Words A MAN by Deed indented bargains and sells gives and grants his Mannor of Dale and all his Trees growing upon it but the Deed is not enrolled according to the Statute here inasmuch as the Mannor passes not for want of Inrolment the Trees shall not go to the Bargainee altho ' they are granted by express Words and that the Grant of every Man shall be taken most strongly against himself for the Law does not favour Fractions and Severances of Trees from the Freehold and Inheritance of the Land because by such means very often Trees shall be wasted and destroyed Co. 11. 48. a. in Liford's Case 1 Roll. Rep. 100. Besides it was not the intent of the Parties that the Trees should pass as Chattels without the Mannor and as one shall not frustrate or defeat his own Grant by his own Act so the Words of a Grant shall be construed according to a reasonable and easie Sence with regard to the meaning of the Parties by them and therefore 14 H. VIII 1. if a Man grant all his Woods and Trees Apple-Trees will not pass Note that tho' by a grant of all my Trees Fruit-Trees will not pass yet if I except all my Apple-Trees all other Fruit-Trees pass as
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.
suspension in Judgment of Law grew after the taking of the particular Estate 1 Inst 298. a. in medio A Rent is granted to B. for the Life of A. the Remainder to the Heirs of the Body of A. this is a good Remainder and yet it must vest upon an instant 7 H. 4. 6. immediately upon the Death of A. who is cestuy que vie the Remainder vests in his Heir See Finch's Law 69. Tenants in Common LEASE for Life Remainder to the right Heirs of I. S. and I. D. who are living their Heirs shall take it in common not Jointly for that they cannot take at the same time for by intendment both Fathers will not die together 18 E. 3. 28. Felonious Taking A. SEEING the Horse of B. in his Pasture and having a mind to steal him comes to the Sheriff and pretending the Horse to be his own obtains him to be delivered unto him by a Replevin yet this is a Felonious and Fraudulent taking for the Replevin was obtained in fraudem Legis 3 Inst 108. 1 Siderf 254. Felony to take his own Goods A MAN delivers Goods to another and afterwards the Bailor privately steals them from the Bailee with an intent to charge him c. this is Felony and in judgment of Law he is said in this case to take the Goods of another the Bailee having Jus possessionis or a special property and the Bailor Jus Proprietatis 3 Inst 110. Keilway 70. Ha. Pl. Cor. 67. One Farr a Solicitor had obtain'd Judgment against the casual Ejector upon which he sued an Hab. fac possessionem and the Sheriff's Bayliffs entred the House with him and broke a Door where certain Goods were and took the Woman to whom they belonged and required special Bail of her for default whereof they carried her to Newgate and then Farr took the Goods which were of a great Value For which being Indicted and it appearing he did all this with intention to take the Goods without any colour of Title for his Client he was found guilty of Felony and tho' he was a Solicitor and had been convicted of Forgery before yet he could not read and so he was hanged 1 Sid. 254. Felony to steal a Winding-Sheet ONE William Haines digged up the several Graves of three Men and one Woman in the Night and took their Winding-Sheets from their Bodies and buried them again 'T was resolved The property of the Sheets remained in the owner scil in him or them who had property therein when the dead Body was wrapped therewith viz the Executors Administrators or other owner of 'em vide 11. H. 4. If Apparel be put upon a Boy it is a gift in Law ' cause the Boy hath capacity to take it but a dead Body being but a lump of Earth hath no capacity Also it is no gift to the Person but bestowed on the Body for the reverence towards it to express the hope of Resurrection Besides one cannot relinquish the Property he hath to his Goods unless they are vested in another Note Haines had his Clergy and escaped death Co. 12. 113. and 3 Inst 110. Woman Bailiff A WOMAN may be sued in Account as Bailiff for she may well discharge the Office of a Bailiff 19 H. 6. 5. b. Felo de se yet the killing involuntary A. GIVES B. such a Stroak as he fells him to the Ground B. draws his Knife and holds it up for his own defence A. in haste meaning to fall upon B. to kill him falls upon B's Knife whereby he is wounded to death he is felo de se for B. did nothing but what was lawful in his own defence 3 Inst 54. Ha. Pl. Cor. 28. and Bac. Elem. 4. So if a Gun be discharged with a murtherous intent at I. S. and the Piece break and strike into the Eye of him that dischargeth it and killeth him he is felo de se and yet his intention was not to hurt himself but in criminalibus sufficit generalis malitia intentionis cum facto paris gradus for if one perswade another to kill himself and is present when he doth so he is a Murtherer But Quaerae If A. lay impoisoned Fruit for a Stranger and his Father or Mother come and eat it Whether this be petty Treason because it is not altogether Crimen paris gradus See Bacon's Elem. 59 60. A Non compos mentis wounds himself mortally and dies Compos ONE during the time that he is Non compos mentis gives himself a mortal Wound but dies not thereof till he has recovered his memory he is not Felo de se because the Stroak which caused his death was given when he was not compos mentis Et Actus non facit Reum nisi mens sit Rea. 3 Inst 54. A Man that is Non compos mentis kills another this is no Felony the same for a Lunatick during his Lunacy But Note He that incites a Madman to kill another is a Principal Murderer A Non compos mentis can't commit Treason THE ancient Law was that if a Mad-man had killed or offered to kill the King it was Treason 4 Rep. 124. Nec veniam laeso numine casus habet Ovid. But now by Stat. 25. E. 3. by force of these Words Fait compasser ou imaginer la mort He that is not Compos Mentis and totally deprived of all compassings and imaginations cannot commit High Treason by compassing c. 3 Inst 4. 6. Where Execution was done upon a Man for the death of a Child the Child being then alive IN the County of Warwick there were two Brethren the one having Issue a Daughter and seized of Lands in Fee devised the government of Her and his Lands until she came to Sixteen Years to his Brother and died The Uncle brought up his Neece very well both at her Book and Needle and she was eight or nine Years old Her Uncle for some offence correcting her she was heard to say Oh good Uncle kill me not after which time she could not be heard of tho' much enquiry made Whereupon the Uncle being suspected of her Murder and the rather because her next Heir was upon Examination 8 Jac. Regis committed to Goal for suspicion of Murder and admonished by the Justices of Assize to find out the Child and so bailed him until the next Assizes Against which time for that he could not find her and fearing what would fall out against him took another Child as like unto her both in Person and Years as he could find and apparelled like the true Child and brought her the next Assizes but upon view and examination she was found not to be the true Child and upon these presumptions he was Indicted found Guilty had Judgment and was Hanged But the truth of the case was The Child being beaten over night the next morning when she should go to School ran away into the next County and being well Educated was received and entertained of a Stranger and when