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
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
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
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
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
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
at Rovers or at a Bird or hewing a Tree and the Hatchet-head flies off or a School-Master in reasonable manner beating a Scholar or a Father his Son or a Master his Servant and Death ensues it is Chancemedley Dalt 351. 352. Quaere If a Man beat his Wife for Correction only and she die thereof King William Rufus was shot by accident in New Forest by Sir Walter Tyrel And in the Reign of King James I. Arch-Bishop Abbot a Man of a holy and unblameable Life medling with edg'd Tools that he used not to handle in his Study by a sad accident killed a Keeper with a forked Arrow as he was shooting at a Deer where-upon he retired to Guilford in great perplexity but the King granted out a Commission to enquire whether casual Homicide did make the Arch-Bishop irregular and in the disquisition of it he found many Friends that restored him to his Palace Wilson's King James 198. Buggery or Sodomy BUGGERY is a detestable and abominable Sin not to be named amongst Christians committed by carnal Knowledge against the Ordinance of the Creator and Order of Nature by Mankind with Mankind or with brute Beasts or by Woman-kind with brute Beasts 3 Inst 58. Bugeria is an Italian Word and signifies this description and it was complained of in Parliament that the Lombards Italians had brought into the Realm the shameful sin of Sodomy inter Christianos non nominandum as it is said Rot. Parl. 50 E. 3. nu 58. The words of the Indictment be Contra ordinationem Creatoris naturae ordinem rem habuit veneream dictumque puerum carnaliter cognovit c. so as there must be penetratio i. e. res in re either with Mankind or with Beast but the least penetration maketh it Carnal Knowledge See the Indictment of Stafford Coke lib. Intr. for committing Buggery with a Boy for which he was attainted and hanged Emissio Seminis makes it not Buggery but is an Evidence in that case of penetration 3 Inst 59. If the Party Buggered be within the age of discretion it is no Felony in him but in the Agent only ib. Note the Words of Stat 25. H. 8. c. 6. that makes this offence Felony are No Person offending c. which extends as well to a Woman as to a Man and therefore if she commit Buggery with a Beast she is a Person that commits Buggery with a Beast to which end the Word Person was used and the rather for that somewhat before the making of this Act a great Lady had committed Buggery with a Baboon and conceived by it c. ibid. And of late Years one Hick's was Indicted at the old Baily upon this Statute having suffered a Dog to copulate with her which being fully proved and found by the Jury she was condemned and hanged at Tyburn and the Dog on a Tree by 3 Keeble 800. See Hutton's Rep. 115. the Lord Audley's Case He was Indicted that Deum prae oculis non habens nec naturae ordinem respiciens sed instigatione Diabolicâ motus c. Vi Armis in quendam Florence Fitz-Patrick Yeoman insultum fecit cum eodem felonicè contra naturam rem veneream habuit ipsumque F. c. carnalitèr cognovit peccatumque illud Sodomiticum c. cum eodem F. commisit c. The like Indictment for the same offence with the same Person at another time and being tried by his Peers Twelve of the Lords acquitted him and Fifteen found him guilty and so he had Judgment Felony Rape Burglary IF a Woman kill a Man that assaults her to ravish her 't is not Felony because he comes to commit a known Felony himself Hales Pla. cor tit Felonies If a House be broken and enter'd with an Intent to commit a Rape it is Burglary whether the Intent be executed or not Hales tit Burglary For note Rape was Felony at Common Law then by Stat. Westm 1. c. 13. made but Misdemeanor then by 13 E. 1. c. 34. restored to Felony again Rape is a violent deflouring of a Woman or carnal Knowledge had of the Body of a Woman against her Will. If a Woman at the time of the supposed Rape do Conceive with Child by the Ravisher this is no Rape for a Woman cannot Conceive with Child except she doth consent Dalton's Inst cap. 160. pag. 392. One W. D. was Arraigned in Banco Regis upon an Indictment of the Rape of a Girl of the age of Seven Years Scil. Quod ipsam felonicè rapuit carnalitèr cognovit he pleaded Non Culp but was found Guilty upon the Evidence of several Matrons But note the Court doubted of a Rape in so tender a Child but had she been Nine Years old and more then it might be otherwise Dyer 304. pla 51. Post The Law is That a Wife shall not be endowed unless she be past the age of Nine Years at the time of the Death of her Husband and the reason is Quia Junior non potest dotem promereri neque virum Sustinere Co. Lit. Sect. 36. which perhaps was the ground of the Opinion in the former Case One Woman Principal to the Rape of another IF a Man and a Woman be present with purpose that the Man shall by Violence carnally know the Body of another Woman there also present against her Will and the Man doth the fact in the presence of the other Woman she being present shall be a Principal Ravisher as well as the Man He the Agent and She the Co-adjutant And so one Woman may be a Principal to the Ravishment of another Dod. 138. Dalton 392. cap. 160. To Ravish a Harlot Felony IT is a good Plea in an Appeal of Rape to say That before the Ravishment supposed she was his Concubine as Bracton says And yet to ravish an Harlot against her will is Felony for Licet Meretrix fuerit ante certe tunc temporis non fuit cùm nequitiae ejus reclamando consentire noluit Bract. l. 2. Dalton ubi sup Consent to Rape NOTE Tho' if a Woman prove with Child it is no Rape for that she cannot conceive unless she consent as it was observed before yet if a Man Ravish a Woman who consents for fear of Death this is Ravishment against her Will for that Consent ought to be voluntary and free Dalton ubi sup To Ravish a Woman where she neither consents before nor after or to Ravish any Woman with force tho' she do consent after is Felony and the offender has no benefit of Clergy ibid. 13 E. 1. 34. 6. R. 2. c. 6. But if a Woman be under Ten Years then tho' she do consent before yet by Stat. 18. El. cap. 7. it is a Rape Hales tit Felonies by Stat. Cromp. 47. Dalt 393. By the Statute 6 R. 2. c. 6. both the Ravisher and Ravished where she consents after the fact are dissabled to have or challenge any Inheritance Dower or Joint Estate after the death of her Husband or Ancestor
suspension in Judgment of Law grew after the taking of the particular Estate 1 Inst 298. a. in medio A Rent is granted to B. for the Life of A. the Remainder to the Heirs of the Body of A. this is a good Remainder and yet it must vest upon an instant 7 H. 4. 6. immediately upon the Death of A. who is cestuy que vie the Remainder vests in his Heir See Finch's Law 69. Tenants in Common LEASE for Life Remainder to the right Heirs of I. S. and I. D. who are living their Heirs shall take it in common not Jointly for that they cannot take at the same time for by intendment both Fathers will not die together 18 E. 3. 28. Felonious Taking A. SEEING the Horse of B. in his Pasture and having a mind to steal him comes to the Sheriff and pretending the Horse to be his own obtains him to be delivered unto him by a Replevin yet this is a Felonious and Fraudulent taking for the Replevin was obtained in fraudem Legis 3 Inst 108. 1 Siderf 254. Felony to take his own Goods A MAN delivers Goods to another and afterwards the Bailor privately steals them from the Bailee with an intent to charge him c. this is Felony and in judgment of Law he is said in this case to take the Goods of another the Bailee having Jus possessionis or a special property and the Bailor Jus Proprietatis 3 Inst 110. Keilway 70. Ha. Pl. Cor. 67. One Farr a Solicitor had obtain'd Judgment against the casual Ejector upon which he sued an Hab. fac possessionem and the Sheriff's Bayliffs entred the House with him and broke a Door where certain Goods were and took the Woman to whom they belonged and required special Bail of her for default whereof they carried her to Newgate and then Farr took the Goods which were of a great Value For which being Indicted and it appearing he did all this with intention to take the Goods without any colour of Title for his Client he was found guilty of Felony and tho' he was a Solicitor and had been convicted of Forgery before yet he could not read and so he was hanged 1 Sid. 254. Felony to steal a Winding-Sheet ONE William Haines digged up the several Graves of three Men and one Woman in the Night and took their Winding-Sheets from their Bodies and buried them again 'T was resolved The property of the Sheets remained in the owner scil in him or them who had property therein when the dead Body was wrapped therewith viz the Executors Administrators or other owner of 'em vide 11. H. 4. If Apparel be put upon a Boy it is a gift in Law ' cause the Boy hath capacity to take it but a dead Body being but a lump of Earth hath no capacity Also it is no gift to the Person but bestowed on the Body for the reverence towards it to express the hope of Resurrection Besides one cannot relinquish the Property he hath to his Goods unless they are vested in another Note Haines had his Clergy and escaped death Co. 12. 113. and 3 Inst 110. Woman Bailiff A WOMAN may be sued in Account as Bailiff for she may well discharge the Office of a Bailiff 19 H. 6. 5. b. Felo de se yet the killing involuntary A. GIVES B. such a Stroak as he fells him to the Ground B. draws his Knife and holds it up for his own defence A. in haste meaning to fall upon B. to kill him falls upon B's Knife whereby he is wounded to death he is felo de se for B. did nothing but what was lawful in his own defence 3 Inst 54. Ha. Pl. Cor. 28. and Bac. Elem. 4. So if a Gun be discharged with a murtherous intent at I. S. and the Piece break and strike into the Eye of him that dischargeth it and killeth him he is felo de se and yet his intention was not to hurt himself but in criminalibus sufficit generalis malitia intentionis cum facto paris gradus for if one perswade another to kill himself and is present when he doth so he is a Murtherer But Quaerae If A. lay impoisoned Fruit for a Stranger and his Father or Mother come and eat it Whether this be petty Treason because it is not altogether Crimen paris gradus See Bacon's Elem. 59 60. A Non compos mentis wounds himself mortally and dies Compos ONE during the time that he is Non compos mentis gives himself a mortal Wound but dies not thereof till he has recovered his memory he is not Felo de se because the Stroak which caused his death was given when he was not compos mentis Et Actus non facit Reum nisi mens sit Rea. 3 Inst 54. A Man that is Non compos mentis kills another this is no Felony the same for a Lunatick during his Lunacy But Note He that incites a Madman to kill another is a Principal Murderer A Non compos mentis can't commit Treason THE ancient Law was that if a Mad-man had killed or offered to kill the King it was Treason 4 Rep. 124. Nec veniam laeso numine casus habet Ovid. But now by Stat. 25. E. 3. by force of these Words Fait compasser ou imaginer la mort He that is not Compos Mentis and totally deprived of all compassings and imaginations cannot commit High Treason by compassing c. 3 Inst 4. 6. Where Execution was done upon a Man for the death of a Child the Child being then alive IN the County of Warwick there were two Brethren the one having Issue a Daughter and seized of Lands in Fee devised the government of Her and his Lands until she came to Sixteen Years to his Brother and died The Uncle brought up his Neece very well both at her Book and Needle and she was eight or nine Years old Her Uncle for some offence correcting her she was heard to say Oh good Uncle kill me not after which time she could not be heard of tho' much enquiry made Whereupon the Uncle being suspected of her Murder and the rather because her next Heir was upon Examination 8 Jac. Regis committed to Goal for suspicion of Murder and admonished by the Justices of Assize to find out the Child and so bailed him until the next Assizes Against which time for that he could not find her and fearing what would fall out against him took another Child as like unto her both in Person and Years as he could find and apparelled like the true Child and brought her the next Assizes but upon view and examination she was found not to be the true Child and upon these presumptions he was Indicted found Guilty had Judgment and was Hanged But the truth of the case was The Child being beaten over night the next morning when she should go to School ran away into the next County and being well Educated was received and entertained of a Stranger and when
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
Action Where one shall be a Bastard tho' born in Marriage IF the Husband be Castrated so as it is apparent that he cannot by any possibility get a Child and his Wife has Issue several years after it shall be a Bastard tho' engendred in Marriage for that it is a plain case it cannot be legitimate But Hobart contrà 1 Roll. 358. Initio If the Wife of an Infant of the Age of Nine Years has a Child it is a Bastard 29. Ass 54. quaere 1 Roll. 359. If a Man marry a Woman big with Child by another who is delivered within three days after the Child is a Bastard by the Law Spiritual but by our Law legitimate 18. E. 4. 30. 1 H. VI. 3. If a Feme Covert has Issue by Adultery yet if the Husband be able to get it and is within the Four Seas it is not a Bastard 1 Roll. 358. Hill 14. Jac. But see 40 E. 3. 16. that if a Woman covert continues in Avowtrie and has Issue it is a Bastard Copy of Inscription Evidence MEMORANDUM at a Tryal at the Bar between Baxter and Foster concerning the Title of Land a Copy of an Inscription upon a great Stone in London was admitted in evidence to prove a pedigree Mich. 1656. Banco super Sti. Pract. Reg. 177. Jury throw up Cross and Pile THE Court set aside a Verdict in Northumberland on Affidavit that the Jury being divided in opinion threw Cross and Pile and ordered them to appear the next Term to an Information this being punishable by Wild and as was said broke Sir James Altham's Heart who was one of the Jury in the Lord Fitzwater's Case 3 Keble 805. Foy and Harder Church-Book and Shop-Book where Evidence A CHURCH Book being entred and made parcel of the Record was given in Evidence and good but not otherwise to be given in Evidence 1 Brownl 207. 1 Cro. 411. A Tradesman's Shop Book may not be given in Evidence for Wares sold or Work done a Year after the selling c. 7 Jac. c. 12. unless they have a Bond or Bill for the Debt or brought Action within the Year Barrister expelled the House for not paying his Commons MR. Boreman a Barrister of one of the Temples was expelled the House and his Chamber seised for non-payment of his Commons whereupon he prayed to be restored bringing his Writ of Restitution into Court ready framed which was directed to the Benchers of the said Society but 't was denied by the Court because there is none in the Inns of Court to whom the Writ can be directed because it is no Body Corporate but only a voluntary Society and submission to Government and they were angry with him for it that he had waved the ancient and usual way of Redress for any grievance in the Inns of Court which is by appealing to the Judges and would have him do it now 17 Car. in B. R. March râ—p 177. cited also in Stiles 42. Masters in Chancery MASTERS in Chancery in ancient time were Clerks of the Court and called The first Form and their Office was and now is to sign Original Writs and of late time they have obtained a Commission to make them Judges They are part of the Latin Court in Chancery and were formerly Priests and from thence they are called Masters the Lord Chancellor had the Benefices under Twenty Marks to the intent to prefer these Masters to 'em and they could not marry 'till they were enabled by Stat. 14. H. VIII cap. 8. They used anciently to frame the Writs and are this day offended with the Cursitors for their Office Latch 39 and 133. Husband and Wife in Affection resolve to die together she buys Poison both take it the Husband dies A MAN and his Wife had lived a long time together and the Man having at length spent his Substance and living in great Necessity said to his Wife That he was now weary of his Life and that he would kill himself the Wife said that then she would also die with him whereupon he prayed her that she would go and buy some Ratsbane and they would drink it together which she accordingly did and she put it into Drink and they both drank of it the Husband died but the Woman took Salad Oyl which made her vomit and she recovered Quaere if Murder in the Wife Moor 754. Prerogative PRAEROGATIVA is derived of praé i. e. ante and rogare to ask or demand before-hand being denominated of the most excellent part because tho' an Act hath passed both Houses in Parliament yet before it be a Law the Royal Assent must be asked or demanded and obtained this is the proper sense of the Word but legally it extends to all Powers Preheminences and Priviledges which the Law gives to the Crown Fortescue 45. Stanf. Praer 5. 10. 1 Inst 90 b. According to this latter sense then the King's Prerogative is not his Will or what Divines make it a Power to do what he lists The King's Prerogative that is The King's Laws For Example if you ask whether a Patron may present to a Living after six Months by Law 'T is answered No If you ask whether the King may 't is answered he may by his Prerogative i. e. by the Law that concerns him in that Case Selden Husband and Wife divorced causâ Frigiditatis or impotency in the Husband he marries again and has Issue it is legitimate IN Ejectment between Whebster and Burie a sp ecial Verdict was given upon Divorce between Burie and his Wife Causâ Frigiditatis and that his Wife for Three Years after marriage remansit Virgo intacta propter perpetuam impotentiam generationis in Viro quod Vir fuit ineptua ad generandum And in this special Verdict the whole examination of the Witnesses upon which the Judge in the Spiritual Court gave Sentence whereby the perpetual dissability of Bury ad generandum was manifest was read by which it was pretended that the Issue which he had by a Second Wife was illegitimate and this was the doubt of the Jury But 't was adjudged that his Issue by the Second Wife was lawful for 't is clear that by the Divorce causâ frigiditatis the Marriage is dissolved à vinculo and either might marry again then admitting the Second marriage voidable yet it is good until dissolved and by consequence the Issue lawful if no Divorce be in the life of the Parties Et homo potest esse habilis in habilis diversis temporibus Co. 5. 98. Burie's Case One refuses to be sworn after the usual manner DOCTOR Owen Vice-Chancellor of Oxford being a Witness in a Cause for the Plaintiff refused to be sworn according to the usual manner by laying his Right Hand upon the Book and kissing it after but he caused the Book to be held open before him and he held up his Right Hand and so was sworn Whereupon the Jury prayed the discretion of the Court if they ought to esteem his
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.