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
for Misadventure for that such their Play was by consent and because there was no former Malice but done only for disport and trial of Manhood Dalt 352. See tit Justs and Chance-medley in hoc Libro Justification in case of Necessity THE Ferry-Man of Gravesend took Forty seven Passengers into his Barge to go to London amongst whom was one Mouse the Barge being upon the Water a great Tempest arose insomuch that the Barge and all the Passengers were in danger to be drowned if a Hogshead of Wine and other ponderous things were not cast out among which things there was a Casket with 113 l. of Mouse's which I. S. took and threw over-board whereupon Mouse brought Trespass c. It was resolved per Curiam that in case of necessity for saving the Passengers lives it was lawful for I. S. being a Passenger to cast the Plaintiff's Casket out of the Barge with what was in it Quod quis obtutelam corporis sui fecerit jure id fecisse videtur and 't was directly proved that the Men had been drowned if the things had not been heaved out But 't was agreed also that the Owners in such Case shall have their Remedy upon the surcharge against the Ferry-Man and if there is no surcharge but the danger comes by the Act of God then every one must bear his own Loss 12 Rep. 63. and 2 Roll. 567. One may justifie the felling of a Tree in the Ground of another in Case of necessity 6 E. 4. 8. See 22 Assise 5 6. that a Man may justifie the beating another if he be in a Rage So Estrays may be fettered if they are fierce and unruly Hut Rep. 67. and Winch 67 124. If a Man has a way over my Land for his Cattle to pass and they in passing eat the Grass against his Will this is justifiable 2 Roll. 566 567. Reeve and Downs Note this for a Rule That in all Trespasses there must be a voluntary Act and also a damage otherwise an Action of Trespass lies not In Trespass for Ploughing his Land the Defendant said the Plaintiff's Land is adjoyning to his and that when he was Ploughing his own Land the Horses were unruly and by violence carried the Plough into the Land of the Plaintiff contra voluntatem suam and held a good Justification for if a Man be doing a lawful Act which afterwards becomes illegal against his Will that is damnum sine injuria 22 E. 4. 8. One cannot justifie a Trespass upon another for fear IN Trespass for breaking of a House and Close the Defendant pleaded that Duodecem homines ignoti modo querrino armati tantum minabantur ei quod de vitae suae amissione dubitabat and after requirabant compulsabant the Defendant to go with 'em to the House quodque ob timorem minarum per mandatum compulsionem dictorum duodecem hominum he did enter the said Close and House and returned immediately through the said Close which is the same Trespass c. Adj. no Plea upon demurrer for one cannot justifie a Trespass upon another for fear and the Defendant has remedy against those that compelled him the pleading too was naught because he did not shew that the way to the House was through the Close Allen 35. Gilbert and Stone vide the same Case Stiles 72. with this further reason that the Person injured shall have no satisfaction if such Plea be allowed for he cannot have it of those that threatened But see Stiles 65. in Trespass pedibus ambulando the Defendant pleads he was carried upon the Land by force and violence of others and was not there voluntarily which is the same Trespass c. upon Demurrer Roll. Justice said it is the Trespass of the Party that carried the Defendant upon the Land and not the Defendant's Trespass as he that drives my Cattel into anothers Land is the Trespassor and not I who am the owner of the Cattle Presumption of Law IN many Cases the Law will admit no proof against what it presumes Therefore If a Rent be behind for 20. Years and the Lord make an Acquittance for the last that is due all the rest are presumed to be paid against which presumption the Law will admit no proof Dyer 271. a. 11 H. IV. 55. So if a Man be within the Four Seas and his Wife hath a Child the Law presumes it is the Child of the Husband and will admit no proof to the contrary 7 H. IV. 9. 1 Inst 373. a. unless the Husband be castrated 1 Roll. 358. An innocent person is accused of Felony and being afraid flies for it tho' he after judicially acquit himself thereof yet if it be found that he fled for the same he shall forfeit notwithstanding his innocency all his Goods and Chattels Debts and Duties for as to the forfeiture of these the Law will allow no Proof against the presumption in Law grounded upon his flight 1 Inst 373. a. b. So if the Uncle of the Issue releases with Warranty to the Discontinuee of Tenant in tail and dies without Issue this is a collateral Warranty to the Issue in tail barring him without any Assets or Estate descended from him that made the Warranty the Law presuming that the Uncle would not unnaturally disinherit his Lawful Heir being of his own Blood of that right which himself never had without leaving him greater Advancements 1 Inst 373. a. Forfeiture TWO Joynt-Tenants for Life the one grants his Estate for the Life of his Companion it was held a Forfeiture for first it is a severance of the Joynture and then a Lease for another's Life 4 Leon. 236. Remainder for the Life of Tenant for Life good IF a Remainder be limited to one for term of the Life of Tenant for Life the Remainder is good but for this reason only because that by possibility the Tenant for Life may alien in Fee and so forfeit his Estate whereby the Remainder shall enter for the Forfeiture and enjoy the Estate during the Life of the Tenant for Life who committed such forfeiture Co. 2. 50 51. The King of Spain Out-lawed in Westminster-Hall THE King of Spain was Out-lawed in Westminster-Hall I being of Councel against him says Selden the Case was this A Merchant had recovered Costs against him in a Suit which because he could not get we advised to have him Out-lawed for not appearing and so he was As soon as Gondimer heard it he presently sent the Money by reason that if his Master had been Out-lawed he could not have the benefit of the Law which would have been very prejudicial to him there being then many Suits depending betwixt the King of Spain and our English Merchants Vide Stiles Pract. Reg. 382. that Mich. 22. Car. B. R. the King of Spain was Non-Suit in England for if a foreign Prince will have benefit of the National Laws here he must proceed and abide by the Rules and Orders of the Court wherein he prefers his
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
Woman may consent at Twelve for the Law tenders the speedy advancement of Women quia maturiora sunt vota Mulierum quam Virorum Note If the Man be above Fourteen and the Wife under Twelve or if the Wife be above Twelve and the Man under Fourteen yet may the Husband or Wife so above the age of consent disagree to the Espousals as well as the party that is under the age of Consent for the Advantage of disagreement must be reciprocal Babington and Warner's Case 3. Inst 89. Marriage in some sort Felony by the Common Law BY the ancient Law of England if any Christian Man did Marry with a Woman that was a Jew or a Christian Woman Marry with a Jew it was Felony and the Party so offending should be burnt alive 3 Inst 89. Contrahentes cum Judaeis Judaeabus Pecorantes Sodomitae in terra vivi confodiantur c. Fleta lib. 1. cap. 35. § Contrahentes Whether a Man divorced from his Wife causâ Adulterii and Marrying a Second in her Life be a Felon ONE Williams Married a Wife and was divorced from her causâ Adulterii and then Married another for which he was indicted upon the Statute of 1 Jac. cap. 11. for having two Wives And if this were within the Proviso of that Statute which provides for those who are divorced was the question The Words are Provided that this Act shall not extend to any Person or Persons that are or shall be at the time of such Marriage divorced by any Sentence had or hereafter to be had in the Ecclesiastical Court nor to any Person or Persons where the former Marriage hath been or hereafter shall be by Sentence in the Ecclesiastical Court declared to be void and of no effect 'T was resolved by Brampston and Heath caeteris absentibus that it is within the Proviso for it speaks generally of Divorce and this is a penal Law Heath said That by the Law of Holy Church the Parties divorced causâ Adulterii might Marry but Pars rea not without Licence and cited the case of Ann Porter which see Cro. Car. 461. 2. 3. who was divorced from her Husband causâ saevitiae and afterwards Married one Rooks and being indicted upon this Statute it was doubted and debated whether it were within the Proviso or not but resolved It was not because only a divorce à Cohabitatione and a temporal Separation until the Anger pass'd but the Divorce here is à Vinculo Matrimonii Trin. 17. Car. March Rep. 101. Quaere the difference between these Cases for tho' in former times it was questioned Whether a Man and his Wife Divorced causâ Adulterii might Marry again yet now it is made clear by the Canons That they may not for this is no absolute Divorce being ex causâ subsequente and only a Separation à Mensa Thoro freeing the Parties from the performance of Conjugal duties only the one with the other Vide Cro. Eliz. 908. Stephen's and Totty's Case and Moor 665. where the Husband after such a Divorce causâ Adulterii released an Obligation made to his Wife before the Coverture and adjudged a good Release which proves that the Coverture continues and that there is no dissolution à Vinculo In the Case of Ann Porter as reported by Crook it was said by the Court If she were suffered to be within the Proviso many would be Divorced upon such pretence Scil. Causâ Saevitiae and instantly Marry again whereby many inconveniencies would ensue whereupon she was advised Not to insist upon the Law but to procure a Pardon to avoid the danger for it was clearly agreed by all the Civilians and others that the Second Marriage there was unlawful and she in danger to be adjudged a Felon by the Statute Note the Decree was Quod propter Saevitiam of her Husband towards her she should be separated à Mensâ Thoro from him but no Word of Divorciamus was therein and expresly intimated in the Sentence that she should not marry to any other during the life of the said Porter It should seem therefore that where Sentence of Divorce is given as in the Case of Williams causâ Adulterii there such Persons Marrying again shall not be in danger to be Felons by the Statute which being a Penal Law concerning Life ought to be favourably expounded in favorem vitae and that the Proviso extends to this kind of Divorce ex causâ subsequente i. e. Adultery the Words being of Divorces in general where Sentence is given in the Ecclesiastical Court and not only where the former Marriage is by Sentence declared void Yet some are of opinion That the Proviso doth not intend but when there is Sentence of an absolute Divorce as in Causes preceding the Marriage viz. Pre contract Consanguinity Affinity and Frigidity which dissolve à Vinculo and the Marriage declared void ab initio But vide 3 Inst. 89. and Hales Pla. Cor. tit Felenies by Stat. that this Branch of the Statute in respect of the generality of the Words privelege the offender from being a Felon as well in the case of the Divorce à Mensâ Thòro as where it is à Vinculo Matrimonii and yet in the case of the Divorce à Mensâ Thoro the Second Marriage is void living the former Wife or Husband And if there be a Divorce à Vinculo Matrimonii and the adverse Party appeal which is a continuance of the former Marriage and suspend the Sentence yet after such a Divorce the Party Marrying is no Felon within this Statute in respect of the generality of this Branch altho' the Marriage be not lawful The offender against this Statute may have the benefit of his Clergy 3. Inst 89. Where notwithstanding one is acquitted he shall be forc'd to pay Costs IF Baron and Feme are Sued in the Ecclesiastical Court for Polygamy and there it appears that the Wife was Married before to I. S. within the age of Consent and afterwards at the Age of Consent did disagree and Married the Defendant and so the Defendants are acquitted yet if the Court tax Costs to the Plaintiff no Prohibition shall be granted because they have Jurisdiction of the Cause and it is the Custom there to tax costs where the Plaintiff has causam litigandi and a Prohibition was denied 2 Rol. 299. Blackdon's Case See 2. Brownl 36. the same Case reported contrà that a Prohibition was granted for it was injustice to allow Costs to one who had vexed them without cause and when they had given Sentence against the Informer Chancemedly or casual Homicide IT is where a Man doing a lawful act without intent of hurt to another hapneth to kill a Man casually By the Law of God there was a City of Refuge appointed for such Person to flee unto for the Act happening in such sort seemeth to be the work of God himself But by our Law he shall forfeit his Goods in regard that a Subject is killed by his means Shooting
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
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 end Luxury viz. Marriage or Defilement Action against a Cook TRIN. 8. H. IV. Rot. 57. Willielmus Milburn recuperat per Juratam per Billam suam in qua queritur versus Johannem Cutting Cook de eo quod ipse Johannes apud Westmonasterium vendebat dicto Willielmo unum Caponem pistum corruptibilem recale factum qui Capo assatus per quatuor dies in Hospicium Domini Regis iterum calefactus pistus extitit de quo postquam edit vomitum horribilem fecit ita quod infirmabatur per duas septimanas recuperat inquam Viginti Solidos pro damnis And Roll says he was informed that it appears upon the Record at large that the Judges increased the damages 1 Roll. 89. Burglary A. LEASES to B. a Shop parcel of his dwelling House to work in where B. works in the day but never lodges in it this Shop is broke open in the night and several Goods stollen out yet not Burglary by the opinion of Tanfield Chief Baron and Justice Hutton because by the severence thereof by Lease to him who had it as a Shop and his not inhabiting therein it was not any Mansion-House and so no Burglary but ordinary Felony Hutton 33. Fine and Hales Pla. Cor. 83. A Chamber in an Inns of Court where a Person usually lodges is a Mansion-House within the Law so is the Church so is a Shop not severed by Lease Dalton's Justice cap. 151. Hales ubi sup A Thief goes down a Chimney to rob it is Burglary tho' here was no actual breaking for one is not bound to stop up his Chimney ibid. A Guest comes to a common Inn and the Host appoints him his Chamber and in the night the Host breaks into his Guest's Chamber to rob him this is Burglary Nota Dalton cap. 151. Challenges and Duels IT is against the Law of Nature and of Nations as well as against the Law of God for a Man to be Judge in his own proper Cause especially in Duello where Fury Wrath Malice and Revenge are the rulers of the Judgment And there is nothing honourable whatever some pretend that is against the Laws of one's Country and the Law of Nature and Nations 3 Inst 157. The Killer is in a worse Condition than the Killed HE that slayeth is in worse case than he that is slain for the Murderer loseth not only his Lands and Goods but his Life also and his Honour which he so much respected for by his Attainder his Blood shall be currupted and if he were Noble or Genteel before he thereby becomes Ignoble and Base and he that is slain by Law loseth none of them so as hereof it is truly said Infoelix pugna ubi majus periculum incumbit Victori quam Victo ibid. Bare Challenge punishable IF any Subject by Word Writing or Message challenge another to Fight with him this is an Offence before any Combat be performed and punishable by Law and it is contra pacem coronam dignitatem for Quando aliquid prohibetur prohibetur omne per quod devenitur ad illud ibid. Much more if they Fight tho' no Death ensue nor Blood drawn which being an Affray and a great breach of the King's Peace is to be punished by Fine and Imprisonment and to find Sureties for their Good Behaviour ibid. What Duel allowed by Law THERE is a Duellum allowed by Law depending a Suit for the Trial of Truth see 2 Inst W. 1. c. 40. which kind of Battail in case of Appeals and Writ of Right is by publick authority and course of Law whereunto all the people by an implied consent are Parties and as some hold has it's Warrant by the Word of God by the single Battel between David and Goliah which was strucken by publick Authority ibid. Where Kings of England have offered to try their Title by single Combat KING Edward III. in the 16th Year of his Reign having War with the French King for his right to the Kingdom of France out of the greatness of his Mind for the love of his Subjects the saving of Christian Blood and a speedy Trial of the right offered the single Combat with the French King but He refused it So after long and chargeable Wars between the Crowns of England and France for the right of the Kingdom of France it was an honourable offer which King R. II. made to Charles the French King for saving of guiltless Blood and to put an end to that bloody and lingring War 1. Either a single Combat between the two Kings 2. Or a Combat between the two Kings and three of their Unkles on either side 3. Or that a fit day and place might be assigned when under the universal conflict of both their Armies an end might be put to the War The Duke of Lancaster according to his Commission made these offers from the King of England to King Charles of France but he was auditus sed non exauditus for King Charles liked none of these offers And in Anno Domini 1196. Philip King of France sent this Challenge to our Richard the First That King Richard would choose him five for his part and He the King of France would appoint five for his part which might fight in Lists for trial of all matters in controversie between them for the avoiding of shedding of more guiltless Blood King Richard accepted the Offer with condition that either King might be of the number but this condition would not be granted See 3 Inst 159 Justs and Tournaments IF at a Just or Turnament or at the Play with Sword and Buckler by the King's Command one Man kills another this is no Felony It was enacted in the Reign of King H. II. that if in such case one was slain it should be no Felony for that in friendly manner they contended to try their strength and to be able to do the King service in that kind upon occasion 3 Inst 56. Otherwise of fighting at Barriers or running at Tilt or Justs without the Kings Command whereby a Man is slain and altho it were by the King's Command yet it was holden Felony by the Justices tempore H. VIII for it was against Law Bro. Coron 228 229. Dalton pag. 352. But it is holden otherwise now Hob. Rep. 134. in Weaver and Ward 's Case Battel Champion AN Approver that kills the party accused in Battel or a Champion that kills the other Champion in a Writ of Right or the Plaintiff or Defendant in an Appeal that kills the other in Duello in these cases the party killing shall forfeit nothing for these Combats or Duels are such trials as the Law appoints in such cases 3 Inst 221. Whoever takes upon him to be a Champion for another and becomes recreant i. e. a crying Coward or Craven he shall lose liberam legem for his perjury that is become infamous and of no credit never to be a Witness or Juror ibid. You may read the form hereof and the
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.
b. Feme Lessee for Years takes Husband he purchases the Fee the term there is extinct by the Act of the Husband which destroys it viz. the purchase but where he had the Reversion before her Term shall continue for the Act of the Law shall not prejudice 4 Leon. 212. An Executor hath a Term and purchases the Fee the Term is determined by Dyer 4 Leon. 212. Counseller and Client IF a Counseller say to his Client that such a Contract is Simony and the Client makes answer That Simony or not Simony he will do it and thereupon the Counsellor maketh this Simonaical Contract it is no offence in him by Reeve Justice March 83. pl. 136. Carrier robbed allowed a Witness to prove the Robbery IT was said by Chief Justice Glyn that a Carrier who is robbed may be examined as a Witness at a Tryal thereupon to prove the Robbery and what he was robbed of otherwise the truth can't be known But this is the only Case he said where one may be admitted to give his testimony as a Witness in a matter which concerns himself Stiles Pr. Reg. 571. Warren and the Hundred of Broadwater Examination of a Witness IN examining a Witness Counsel cannot question all the Life of the Witness as whether he be a Whoremaster c. but if he hath done any notorious fact which gives just exception against him this may be taken and he may be excepted against March 83. pl. 136. What Sergeants Rings ought to weigh SEVENTEEN Sergeants being made the Fourth of November 21 Car. II. Serjeant Powis coming a day or two after to the King's Bench Bar Chief Justice Keeling told him he had somewhat to say to him viz. that the Rings which he and the rest of his Brethren had given weighed but 18 s. apiece whereas Fortescue says in his Book de laudibus Legum Angliae that the Rings given to the Chief Justices and Chief Baron ought to weigh 20 s. a piece and that he spake this not expecting a Cecompence but that it might not be drawn into a President and that the young Gentlemen there might take notice of it See the Mod. Rep. 9. Legatee allowed as a Witness to prove the Will ONE that has but a small Legacy given him by a Will may be allowed as a Witness to prove that Will for the Law will not intend that any one will forswear himself for a small matter Stiles Pr. Reg. 568. but see Stiles Rep. 370. initio A Man brings Debt against his own Executors VIDE 1 Inst 133. b. that in some Case a Man might have had an Action of Debt against his own Executors as if A. had been bound to the Abbot of Dale in an Obligation and afterward A. had been professed a Monk in the same Abby and after were made Abbot thereof he should now have had an Action of Debt upon his own Bond against his own Executors Note when a Man entred into Religion he might make his Will and his Executors and they should have had an Action for a Debt due to him before his entry into Religion or any other Action that Executors may have as if he had been dead indeed pari ratione they might be also sued and in the Case supra the Bond being made to an Abbot by one who after became dead in Law by entring into Religion whereby his Executors became chargeable c. when he himself was afterwards restored to legal Life by being made Abbot the Debt being unsatisfied himself was then the only Person capable of suing for it Where a Feme Covert shall have both an Executor and Administrator THE Wife of I. S. having Debts due to herself and being also Executrix to I. D. makes without her Husband's assent I. N. her Executor and dies Here as touching the Goods and Credits or Things in Action pertaining to her as Executrix of I. D. this Will stands good and I. N. may prove it contrary to her Husband's Will But as to the Credits to her self in her own right pertaining the Will is void and thereof her Husband may take Administration So Note she shall die both Testate and Intestate with a Will and without a Will shall have both an Executor and Administrator Office of an Executor 281. Pleasant Custome BY a Custome which they have in the Town of Southampton if a Bastard Child be found within the Town and the Father of it cannot be discovered he that comes next into the Town after the Child was found must keep the Child Mich. 24. Car. B. R. Stiles Practical Register 105. It may be says Stiles they of the Town did time out of mind agree amongst themselves that it should be so and therefore it shant be adjudged an unreasonable Custome tho' it seems a strange one Custome to hang for Stealing a Capon not for Stealing an Ox. THERE are several Customes which are good ratione loci that are not allowed throughout England as there is a Custome in the Isle of Man that a Man shall be hanged for stealing a Capon yet he shall not be hanged for stealing an Ox. 12 H. VIII 5. 1 Siderf 267. Custome in Cheshire THERE is a Custome in Cheshire that if a Debtor come before the Chamberlain of Chester and there takes his Oath that he is not able to pay the Debt but that he will pay it as soon as he can that he shall have a Protection See 1 Roll. 566 567. Note Whereas by the Custome of London an Action upon the Case lies for calling a Woman Whore and so likewise in the Court of the Borough of Southwark where they alledge a Custome specially for Whipping and Carting of Whores it lieth likewise for a Lodger for she comes within the Customs which reach to all the Inhabitants One loses at Play more then 100 l. to several Persons DEBT upon Bond the Defendant pleads the Stat. 16 Car. II. cap. 7. against Gaming that he lost at Most at Three Throws 90 l. to the Plaintiff and at the same time 30 l. to A. at Cards and 60 l. more to B. at Bett The Plaintiff demurred because it does not appear that these were Parties together or in trust one for the other and in Danver's Case the Act was held to extend only to the security for more than 100 l. much less shall it extend to different Gamesters But the Court agreed it was not material to whom the Party became indebted for the Statute is That you shall not lose more than 100 l. at one time or meeting upon Ticket and Judgment was given for the Defendant the Statute being to be extended against Play 3 Keb. 671. Hudson and Malim Danvers his Case was thus 1 Siderf 394. Bond was given for 100 l. lost at Play there being lost at the same time a Ring of 20 l. value which was paid and adjudged the Bond was not void within the Statute the design whereof was to avoid Securities but did not regard ready Money as not presuming that
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
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
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.