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
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
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
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
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
they may be gone before he can take them But you cannot destrain in the Night time for Rent behind 1 Inst 142. a. A Rent is payable at a day he has all the day 'till Night to pay it but if it is a great Summ he must be ready to tell it before Sun set for the other is not bound to tell it in the Night ibid. Livery and Seisin in the Night by an Attorney good Cro. Eliz. 42. said there to be so adjudged Yet an Atturnment which is in lieu of Livery 1 Inst 49 a. cannot be made after Sun-set Stiles Pract. Reg. 47. yet sure 't is less solemn than Livery which must be upon the Land or in view of it whereas an Atturnment is but an Assent which may be given any where ergo Quaere License to sow Land no Lease IN Sir William Essex his Case Hob. Rep. 35. The Lord Hobart says he is clearly of Paston's opinion in 21 H. VI. 37. That if one license me to sow his Land that is no Lease of the Land and therefore if I sow the Land the Owner shall reap it Gift A BORROWED 100 l. of F. and at the day brought it in a Bag and cast it upon the Table before F. and F said to A. being his Nephew I will not have it take it you and carry it home again with you Per Curiam it is a good gift by paroll being cast upon the Table for then it was in the possession of F. and A. might well wage his Law Otherwise if A. had only offered it to F. which had been only a chose in Action not to be given without a Writing Noy 67. Flower 's Case Where one that is no Party to a Record shall have Error to reverse it A FEME covert was Sued as a Feme Sole but by her Husband's Name she appeared and pleaded and Judgment was given against her The Baron and Feme joyn in a Writ of Error The Court said a Stranger to the Record may not have a Writ of Error to reverse it but that is because he may have another remedy to avoid the prejudice But in this case the Baron hath no other remedy for his Wife is taken in Execution and by this means he shall lose her Society and so it was reversed Stiles Rep. 254. 280. Hayward and Williams Where an Attaint may be brought by one that is no Party to the Issue IF two commit a joint Trespass there can be but one Satisfaction and therefore if they be sued in one Action tho' they may sever in Pleas and Issues yet one Jury shall assess damages for all and note as to the damages he that is no Party to the Issue shall have an Attaint as well as his Fellows Hob. 66. Cock and Jennor 2 Cro. 349. accord that if the damages be too great any of the Defendants may have an Attaint tho' he be not the same Party against whom the Verdict was found The reason hereof is given in Sir J. Heydon's Case Co. 11.5 b. that although he be a Stranger to the Issue yet because that by the Law he is privy in charge he shall have an Attaint Vessels go with the Wines as Accessories in a Bequest A BEQUEST of Wines doth convey the Vessels wherein they are to the Legatary not as if a Man in his Liquor should think for no Man else would the Vessels were part of the Wines as Medals of Gold or Silver are part of such Metals but because the Testator's intention in the Eye of the Law seems to bequeath them as Accessories to the Principal excepting such which by reason of the greatness of their Bulk and wide Capacity cannot without much difficulty be removed out of the Cellars where they are Orphan's Legacy 474. 103. A Legacy taken away under a Condition is understood as given under the contrary condition as if a Testator saith A. B. shall not have 100 l. if my Ship which I expect home should chance to perish in the Sea in this Case A. B. shall have 100 l. if that ship shall safe arrive Orphan's Legacy 464. 24. Christian Name DECLARATION in Assumpsit quod cum quidam ...... Alison was indebted to the Plaintiff for Wares sold the Defendant in consideration the Plaintiff would forbear did promise to pay if the said ...... Alison did not pay After Verdict and Judgment for the Plaintiff error was assigned that no Christian Name was alledged Chief Justice Rainsford and Twisden were of opinion That the Plaintiff must averr the certainty of his Praenomen or Christian Name and that Verdict helps it not no more in Suit against the third Person than against the Party hiself to whom the Goods were sold and it cannot be intended that quidam was the Christian Name it being with a blank The other Judges contra because he may be a Jew or an Anabaptist that hath no Christian Name and the forbearance only is the ground of the Action Indictment for stealing Goods de quodam ignoto good because the stealing is the substance And tho' the Defendant might have demurr'd yet after Verdict it is well enough 3 Keb. 769. Bechino and Gumly Adjornatur Bond not to exercise his Trade A MAN was bound in an Obligation to another that he should not use his Art in such a Town for two Years Hull swore by God if the obligee were present he should go to Prison 'till he had paid a Fine to the King because the Bond is contra Legem terrae 2 H. V. fol. 5. b. See tit Imprisonment Fitz. 14. Justice Reeve said March Rep. 193 he was confident you shall never find one Report against this opinion of Hull such Bond being void because it takes away a Man's livelihood which is one reason against Monopolies which is grounded upon the Law of God for in Deuteronomy Chap. 24. Ver. 6. it is said No Man shall take the nether or the upper Milstone to pledge for he taketh a Man's Life to pledge Which may also be the reason that the Utensils of a Man's profession cannot be destreined for thereby the means of his Livelihood should be taken away See Noy 180. It may not be impertinent to set before you the following differences under this Head for some Books say that a promise not to exercise ones Trade in such a Town is good but that a Bond in such case is void March Rep. 77. pl. 121 and 191. pl. 238. Barrow and Wood. Broad and Jollyffe's Case 2 Cro. 596. is That one may Upon Consideration agree and promise that he will not keep Shop in such a Vill or Street for that Volenti non fit injuria And in the Case of Prugnel and Goss Allen's Rep. 67. Roll. Just takes these differences Where a Bond or Promise restrains the exercise of a Trade altho' it be as to a particular place only yet if it be upon no consideration the Bond and Promise is void But if there were a Consideration for the restraint as if A.
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.
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-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
Assault and Battery quod cumulum pecuniae containing Five Marks cepit and the whole Court was of opinion in regard the Plaintiff's own Money cannot be known and this his intermedling is his own Act and his own wrong that by the Law he shall lose all for if it were otherwise a Man might be made to be a Trespasser against his Will by the taking of his own Goods to avoid which inconvenience the Law will justifie the Defendant's detaining all Querens nihil capiat per Billam 2 Cro. 366. Ward and Ayres and 2 Roll. 566. So if I voluntarily intermingle my Corn with another Man's he may take all ibid. and 1 Siderf 38. the end accord ' by the Chief Justice Action for playing with false Dice A. ENTICED B. to play with him at Dice at a Game called Passage whereupon he played with him and when it came to B's turn to throw A. delivered in true and fair Dice with which he play'd but when it fell to his own turn he threw with false Dice such as he knew would run Five or Six upon every Die and so B. lost 10 l. whereupon he brought an Acton upon the Case for this Deceipt and recovered 1 Roll. 100. Hartwell and Oak's Case Note It was resolved in Martin Leeser's Case That if common Players with false Dice to couzen the People at Play do enter into the House of another Man and desiire him to play at Dice and with their false Dice couzen him of his Money by Play altho' this be not Felony nor an Offence for which he shall lose Life or Member yet he shall be set upon the Pillory where the Offence was committed 2 Cro. 497 498. Motion to quash an Indictment against two for being Common Players at Cards and defrauding the Plaintiff of 40. s. not saying Vi Armis but per Curiam it 's needless 2. to say Angl. a Trick at Cards without a Latin Word there being none for it is good 1 Keb. 652. Where the Owner may retake his Goods tho' altered in Form A WRONG-Doer cuts down Trees and carries them away and makes Timber or Boards of 'em yet may the owner retake 'em in the Land of the Tort-feasor For in all Cases where a thing is taken wrongfully and altered in Form yet if that which is the principal part of the substance remains the notice of the thing is not lost as if a Man should tortiously take away my Cloak and make himself a Duoblet of it yet I may retake it from him So if one take from me a Piece of Cloth and after sow Silver or Gold into it yet I may take it from him Quia major pars substantiae remanet Moor. pla 67. Note If I. S. bequeaths a Pack of Wool to I. D. and after the Testator converts it into Cloth and dies possessed of it I. D. shall not have the Cloth Doderidge English Lawyer 132. Where Property shall not be altered by a Sale in Market Overt 'T IS the opinion of some that the Goods of a Bankrupt tho' he has sold them in Market Overt are notwithstanding that liable to the sale of Commissioners by Twisden And 't is clear they are liable if sold out of Market Overt 1 Siderf 272. initio See Dyer fol. 99. placito 68. A Man bought stoln Beasts out of Market and gave Five Shillings to have election to refuse in the Market to be holden the next Day and then in the Market he agreed to have the Beasts and payed Toll It was held in this Case that the property was not altered for that the Agreement relates to the Contract out of the Market quod nota In Trover by Gibbs against Basil for a Gelding the Case was one Porter stole this Gelding from the Plaintiff and sold him to the Defendant in open Market by the name of Lister and 't was entred so in the Toll Book that Lister sold him This is no good sale to bar the Plaintiff for the Stat. 2 and 3 Philip and Mary cap. 7. provides that no property of stollen Goods shall be altered that are sold unless the Name and Sirname of the Parties to the sale be entred in the Toll Book Owen 27. Justification IF a Man hath a heap of Corn by my heap of Corn and he takes a handful out of my heap I may take a handful out of his and justifie for he shall not take advantage of his own wrong 2 Roll. 566. n. 10. To justifie the taking anothers Goods without being a Trespasser IF one Saddles my Horse and then puts him into his own Ground I may well come and take my Horse out and keep the Saddle and not be liable to Trespass for so doing and because he puts his Saddle upon my Horse I may justifie keeping it 'till he brings Action to recover it So if one load my Cart with his Corn or my Boat with his Coals or the like I may well take my Cart and Boat away and keep and detain the Goods without being a Trespasser 'till he bring a Detinue to recover 'em fron me 1 Buls 96. Demurr to a Demurrer NOTE One may demur to a Demurrer for the doubleness of it for a Demurrer should be formal and certain to avoid Barbarism and inveigling the Court but if he demurs not to it when he may but joyns in the Demurrer he hath now slipped the advantage and he cannot demurr afterwards A Demurrer is double when he that demurrs assigns therein for cause of it one Error in Fact and another in Law which he ought not to do for if either of the Causes be true it is sufficient to overthrow the Plea and it is at his liberty to insist upon that which is best for his own advantage but not upon both for this were to puzzle the Proceedings See Stiles Pract. Reg. 133. Accessary to an Accessary IF one feloniously receive another that is an Accessary to a Felony the Receiver is an Accessary Stamf. lib. 1. One of ill fame demands the Rent without Authority c. LEASE for Years rendring Rent with re entry for Non-payment at the day a Stranger came to demand the Rent the Lessee asked him by what Authority and because he was a couzening Fellow and notoriously infamous and would not shew any Authority from the Lessor the Lessee would not pay the Rent and so the Lessor entred and adjudged lawful for that a command to receive Rent may be by Parole Cro. Eliz. 22. Sir John Souch's Case Serjeant Moor reports a Case without Name in the same Year with this but another Term A Lease for Years upon condition to re-enter for not-payment of the Rent at the last day there came upon the Land a Man of an ill fame who was Out-lawed in Forty Actions and conversed all the day with the Lessee but said not a Word for what cause he came and at the last instant of the day he demanded the Rent the Lessee asked him what authority he had to receive
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.