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
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.
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
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
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