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
assign a Shop or sell braided Wares to B. there in respect of the apparent prejudice which may accrue to B. if A. should continue the Trade such a Bond or Promise is good adjudged so in Froward's Case upon a Writ of Error But note although there be such a consideration yet if the restraint be general throughout England it is void Vide 1 Roll. 16 17. and Moor 115. and 242. Cunning Practice A MAN was Arrested in an Action of Debt and presently made a Warrant to an Attorney to acknowledge a Judgment for him upon which he was discharged but afterwards he revoked the Warrant of Attorney before the Judgment was confessed the Court observing this cunning practice commanded the Attorney to plead Non sum informatus that Judgment might be entred and said they would defend him against the Party if he brought an Action against him Latch 8. Trick in the business THE Court was moved that there might be a Rule of Court for I. S. upon satisfaction made of a Judgment obtained by him to acknowledge Satisfaction but the Court denied it and said there was some Trick in the business for no doubt but the Party upon receipt of what is due to him will acknowledge Satisfaction without a Rule to compell him Stiles 164. The River of Thames a High-Way MR. Attorney General prayed Judgment in an Information against Smith for laying Logs which is a Nuisance on the River Thames The Defendant pleaded the general Pardon but Nuisances on the High-Way being excepted therein and this being as much a High-Way as the Road and the Hundred answerable for Robbery thereon Judgment was given for the King 3 Keeble 759. Intention of the Parties A. CONTRACTS with B. for 18 Barrels of Ale paying a certain summ of Money and A. would have kept the Barrels after the Ale was spent but adjudged he should not for the intent of the Parties never was that the Vendee should have them but only the Ale and the common usage is that the Vendor shall have the Barrels again 27. H. VIII 27. b. cited 1 Bulls 175. So if one covenant with another that if he come to his House he will give him a Cup of Wine and he comes he shall not have the Cup also because it was never the intent of the Party ibid. Countermand of Arrest A. DELIVERS a Writ to the Sheriff to arrest I S. and after forbids him and desires the Writ again the Sheriff refuses and arrests I. S. Quaere if I. S. may have faux Imprisonment against the Sheriff It seems he may not Whether shall A. have an Action upon the Case against the Sheriff it seems he shall for it may be he is prejudiced Whether the Sheriff shall have an Action against A. for his Fee Latch Rep. 19. Slander by an Infant and against an Infant AN Action upon the case for Words lies against an Infant of Seventeen Years of Age for Malitia supplet aetatem Noy 129. An Infant brought an Action against one Child for these words I charge thee with Felony and had a Verdict and Judgment tho' moved in arrest c. because not averred the Plaintiff was of an Age to commit Felony for the Defendant must plead that and shall not be averred by the plaintiff to avoid his own Action Noy 124. Baily against Child Grant of the next avoidance by Letter I. S. BROUGHT a Quare impedit declaring upon a grant of the next Avoidance the Defendant demanded Oyer of the Deed and the Plaintiff shewed a Letter which was written to his Father by the Patron wherein he tells the Father that he had given to his Son the Plaintiff the next avoidance Whereupon the Defendant demurred and adjudged for him for the Letter was a meer banter and the grant not good without Deed. Owen 47. and Cro. Eliz. 163 164. A. granted the next Avoidance to B. and C. and was bound to B. in an obligation that he should enjoy the said Presentment without any disturbance or claim of the said A. C. released to A. his interest in the said Advowson the Church became void A. offered to joyn with B. in the presentation It was holden the obligation was forfeited notwithstanding that A. had a puisne Title after the Bond entred into 4 Leon. 18. Bluet's Case Legacy of Books A TESTATOR saith I give my Physick Books to my Son if hereafter he shall study Physick but if he make the Law his Profession then let him have my Law Books the Son after studies Law and Physick both he shall have the Testator's Books of both Professions Orphan's Legacy 472 89. If the Testator saith I bequeath or commit my Estate as well as my Soul to God whoever hath his Soul his parish Church shall have his Estate Orphan's Legacy 471 81. Bequest of Horses IF a Man bequeath all his Horses his Mares shall go too but not è contra nor by a bequest of Geldings ibid. 467 53 56. and fol. 441 12. Devise A. DEVISES that B. shall be his Heir and C. devises Lands to A. and his Heirs B. shall have those Lands as Heir to A. for a Devise shall not be construed void when it possibly by any probable construction can be made good So note a Man may be Heir ex vi Testamenti before he is Heir ex vi Doni 2 Siderf 27. Heir by descent of an Estate that by possibility could not be in his Ancestor LAND is given to A. and B. so long as they jointly together live the Remainder to the right Heirs of him that dies first A. dies the Remainder vested not during the Life of A. his Death must precede the Remainder and yet his Heir shall have the Land by descent 1 Inst 378. b. Note whensoever the Ancestor takes a Freehold and after a limitation is made to his right Heirs they shall not be Purchasers tho' in Words it be limited by way of Remainder But if a Lease for Years be made to A. Remainder to B. in tail Remainder to the right Heirs of A. there the Remainder vests not in A. but the right Heirs shall take by Purchase if A. die during the Estate tail 1 Inst 22. b. 376. b. 319. b. 2 Roll. 417. Where a Prisoner shall not be judged in Execution tho' he yield himself unto it A PRISONER having been in execution was suffered by the Gaoler to go out and then came into the Gaol again and remained there till the time of another Sheriff and then escaped the new Sheriff is not answerable for it by Hobart For when he was let to go abroad voluntarily by the Gaoler the Execution was utterly discharged so as he could not be taken again legally nor so judged in Execution tho' he would yield himself unto it or the Creditor so allow him Neither can two Sheriffs be chargable Simul Semel for two escapes out of one and the same Execution at the same time Hob. 202. Sheriff of Essex his Case Note it was agreed by
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.
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
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
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.
she was Sixteen Years old at which time she should come to her Land she came to demand it and was directly proved to be the true Child Herein is a double caveat First to Judges that in case of Life they judge not too hastily upon bare presumption Secondly to the innocent Man that he never seek to excuse himself by false or undue means lest thereby offending God he overthrow himself as the Uncle did 3 Inst 232. A Non compos mentis shall not suffer Execution for Felony or Treason c. IF a Man commit Treason or Felony and confesses the same or be thereof convict and after become De non sanae Memoriae he shall not be called to answer Or if after judgment he become De non sanae Memoriae he shan't be executed for it cant be an Example to others 3. Inst 4. In Felony the Will was anciently taken for the Deed. A YOUTH was arraigned for that he would have stollen the Goods of his Master and came to his Master's Bed where he lay asleep and with a Knife attempted with all his force to have cut his Throat and thinking he had indeed done it he fled whereupon the Master cried out and his Neighbours apprehended the Youth and all this Matter being found by special Verdict in the end he was adjudged to be hanged 3 Inst 5. Quia voluntas reputabitur pro facto But Note For a bare compassing or plotting the death of a Man either by Word or Writing he should not have died but there must have been an overt deed tending to the execution of his compassing as in the case aforesaid ibid. If one beat another grievously and leave him for dead and he recover this is not Felony now Words not Treason unless set down in Writing SINCE the Stat. of 25 E. 3. divers latter Acts of Parliament have ordained that compassing by bare Words or sayings should be High Treason but all they are either repealed or expired And it is commonly said That bare Words may make an Heretick but not a Traytor without an overt Act. And the wisdom of the makers of Stat. 25 E. 3. would not make Words only to be Treason seeing such variety amongst the Witnesses are about the same as few of them agree together But if the same be set down in Writing by the Delinquent himself this is a sufficient overt act within this Stat. Note the Act says per overt fait per apertum factum and not per apertum dictum 3 Inst 14. Cardinal Pool altho' a Subject to H. VIII and of the King's Blood being descended from George Duke of Clarence Brother to King Edw. IV. yet in his Book of the Pope's Supremacy written about 27 H. 8. incited Charles the Emperour then preparing against the Turk to bend his Force against his natural Sovereign Lord and Countrey the Writing of which Book was a sufficient overt act within this Statute and to move the Emperor the more he made H. VIII almost as ill as the Turk in these Words In Angliâ sparsum nunc est hoc semen ut vix a Turcico internosci queat idque authoritate unius coaluit ibid. But Words without an overt deed are to be punished in another degree as in High Misprision ibid. which is imprisonment during life forfeiture of all Goods Debts and Duties for ever and the Profits of his Lands during his Life 3 Inst 36. Robbery IF a Theif command one to deliver his Purse who does accordingly and then the Thief finding little in it delivers it back to him this is Robbery If the true Man's Purse be fastened to his Girdle and the Thief cut the Girdle whereby the Purse falls to the Ground this is no taking to make it Robbery for the Thief had never any Possession thereof but if the Thief take up the Purse tho' he let it fall again as in striving or c. it is robbery tho' he never take it up more for he had it once and the continuance of his possession is not required by Law If the true Man seeking to escape for the safeguard of his Money cast it into a Bush which the Thief perceiving takes it this is a taking in Law from the Person because done at one time So if the true Man had let fall his Hat or thrown off his Coat and the same lying in his presence a Thief assault him and take the Hat c. this is Robbery for that which is taken in his presence is in Law taken from his Person If a Thief compel the true Man by fear to swear to fetch him a summ of Money which he does accordingly and the Thief receives it it is Robbery for the Oath and Fear continuing made him bring the Money which amounts to a Taking in Law Note Tho' it be under the value of Twelve Pence that is taken as suppose One Penny or Two Pence it is Robbery but somewhat must be taken for the Assault only to Rob without taking some Money or Goods is no Felony and such Opinions as seem to the contrary were mained by that which then was anciently holden Quod voluntas reputabatur pro facto Nota Taking a Man's Goods out of his Shop before his Face is Robbery as if he had taken it from the Person and it is nothing to the purpose tho' the Thief say I have right to this or This is mine if indeed he has no colour Felonious taking of Goods to the value of 5 s. in the Day time out of any Dwelling-House or out-House tho' no Person be within oust of Clergy per Stat. 39 El. cap 15. See these several Cases in 3 Inst 68 69. and Hales Pl. Cor. tit Robbery Cut Purses their Nature and Punishment BOTH Cut-Purse and Robber take from the Person but the former takes it Clam Secretè without assault or putting in fear and the Robber by violent Assault and putting in fear If one out a Purse with Money in it above Twelve Pence he shall be hanged and the benefit of Clergy is taken from him 3 Inst 68. Give me leave to acquaint you here with an odd accident that happened in Northamptonshire towards the end of the Reign of King James I. out of Wilson's History pag. 279. One Harman a rich Man having some bad Tenants and being informed that one of 'em which owed him Money had furnished himself to go to a Fair walked as by accident to meet him in the way thither when he saw his Tenant he asked him for the Rent the Man willing to dispose of his Money otherwise denied he had any yes I know thou hast Money said Harman calling him by his Name I prithee let me have my Rent and with much importunity the Man pull'd out his Money and gave all or the most part of it to his Landlord This coming to some pragmatical Knowledge the poor Man was advised to indict his Landlord for Robbing him on the High-way which he did and Harman for his sordid
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
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
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