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
the Court in the Case of Allanson and Butler 1 Siderf 330. that if a Prisoner in Execution escape by negligence he may be retaken either by the Sheriff or the Plaintiff but if he escape by the agreement of the Sheriff he cannot retake him but the Plaintiff may for otherwise by the death or insufficiency of the Sheriff he should be left without remedy Execution Discharged A. HAD a judgment and execution against B. who was thereupon taken and in custody in the King's Bench Prison A. consented afterwards that B should come to him out of Prison to the Horse Shooe Tavern which was out of the Rules without a Keeper or Rule of Court thinking to make some agreement with him B. accordingly went to the Tavern but because they could not agree the Matter A. took him up again upon the same Execution in the same Prison whereupon B. brought an Audita Querela and adjudged well for the Execution was discharged by the Prisoner's going at large with the Plaintiff's consent and so could not be retaken upon it Stiles 117. Walker and Alder's Case and 147 Accord Slander of a Midwife A MIDWIFE brought an Action upon the Case for saying She is an ignorant Woman and hath small practice and is very unfortunate in her way but goeth about feeling Women's Bellies but there are few but are sick or die under her Hands Judgment was given for the Plaintiff 2 Keb. 489. Wharton and Clover A Sheriff cannot upon private process rush into a House which by Craft he gets to be opened AN Under-Sheriff and others upon a private Process at the Suit of C. against D. who lay in the House of A. came and knocked at A's Door whereupon A's Wife came to the Door and opened it a little to see who was there upon which they presently with their Swords drawn rushed in upon her whether she would or no and bare her down and brake open the Chamber Door where D. lay and brake also B's House adjoining to it to get Instruments to break doors withal and hurt divers in the House The Lord Chief Baron and Lord Hobart held the first entry unlawful for the opening of the Door was occasioned by 'em by craft and then used to the violence intended Hob. 62. See Co. 5. 92. b. and 2 Cro. 556. One Man kills another taking him in Bed with his Wife ONE Maddy taking of Nabor in the Act of Adultery with his Wife in his House killed him upon the spot and the Court conceived it but Manslaughter here being a sufficient provocation and no precedent Malice so he had his Clergy and was gently burnt c. 2 Keb. 829. Outlawry must be reversed in Person SIR W. Reade being outlawed upon an Indictment for not repairing a Bridge brought a Writ of Error and moved to pursue it by Attorney and put in Bail and not to appear in Person But all the Clerks of the Crown-Office affirmed that none could assign Error upon Indictment but in Person and so also to put in Bail The Court greatly pitied Sir William's Case because he was Ninety years of Age and very infirm having kept his Chamber for a year and more by reason of his infirmity and they conferred with the Attorney General how it might be done but all at length resolved it could not be admitted being against the course of the Court and doubted if the King 's Privy seal could help him Sir William was thereupon brought from his House ten miles from London in a Horse Litter upon Mens shoulders to the Bar and came into the Court and assigned his Error and put in bail to prosecute c. The Error was that he was named in the Indictment and Exigent Willielmus Reade Miles de Comit. Midd. without saying de such a place alledging some place certain within the County and therefore reversed 2 Cro. 616. Note some time before this Case an Outlawed Person prayed to appear by Attorney and upon Affidavit made of his sickness the Court ex gratiâ speciali allowed him to appear by Attorney but commanded the Clerk to enter it Quod venit in propriâ personâ the Law being clear that upon an Outlawry he must appear in Person 2 Cro. 462. vid. Stiles 297. See 4 Leon. 22. Taylor 's Case this difference agreed where matter in Fact is pleaded to avoid an outlawry it ought to be in Person but a matter of Record might be pleaded by Attorney Scribere cum Dasho ONE Coswell outlawed moved to reverse it because instead of proxim there is used px for it's abbreviation without any dash then instead of Infra scr the abbreviation of Infra scriptam there is used Infra sr for which exceptions 't was quashed Stiles 18. Nonsence how to be construed in giving a Legacy AN Imperfect Speech in bequeathing a Legacy may be reduced to such as is equivalent to that which is perfect if the Testator's mind and meaning may rationally be presumed For example the Testator saith Let 10 l. to A. B. without the Words Be given Orphan's Legacy 464 12. A. devises then takes the Devisee to Husband c. ALICE Allen made her Will and thereby devised certain Messuages to James Amynde and his Heirs and afterwards she married the said James and during the Coverture she often said he should never have the Messuages by the said Will She died without Issue he surviving and adjudged that her marriage revoked the Will for it is against the nature of a Will to be irrevocable since it takes not any effect 'till the death of the Devisor and her own Countermand after marriage was of no force because then she is wholly subject to the Will of her Husband therefore the taking of him to Husband being her own proper Act amounts to a Countermand in Law otherwise it were very mischievous to Women that their Wills should be in force whether they will or no and 't is not fit to leave it in the Wife's choice to Countermand because the compulsion of the Husband is to be feared Co. 4. 60. b. Force and Hemblin's Case King Edgar's Law against Drinking THE Danes first brought into this Realm Excessive Drinking and King Edgar permitting many of them to dwell here was at length constrained to make a Law against this excess which never comes alone driving certain Nails into the sides of their Cups as limits and bounds which no Man upon great Pain should be so hardy as to transgress 3 Inst 200. If the excess of Drinking extend to the loathsome and odious vice of Drunkenness it is punishable by Act of Parliament See 4 Jac. cap. 5. 7 Jac. cap. 10. 21 Jac. cap. 7. The Ancient Britains were free from this Crime Ecce Britannorum mos est laudabilis iste Ut bibat Arbitrio Pocula quisque suo A Drunkard is voluntarius Daemon and what hurt or ill soever he does his Drunkenness aggravates it Omne Crimen Ebrietas incendit detegit 1 Inst 247. a. Offences Capital and
for the Matter as Form upon divers exceptions to the pleading Judgment should be given against the King After this one Thomas Harrison Batchelor of Divinity came to the Court of Common Pleas Hutton and Crawley being then upon the Bench and said I accuse Mr. Justice Hutton of High Treason for which he was committed to the Fleet by Justice Crawley and after by the King's direction indited in B. R. and Convicted and Fined 5000 l. to the King And the Judge preferring his Bill against him there recovered 10000 l. damages Hut Rep. 131. Cro. Car. 503. Trades IN the time of H. IV. when Sir William Gascoine was Lord Chief Justice a certain Vintner was indicted for selling of Wine and also for selling of Victuals to such as would resort to Dine and Sup at his House and being thereof Convicted he was Fined whereupon he consulted with some of his Fraternity and told 'em If they would give five Pounds to Gascoine all would be well and so they collected 5 l. between 'em to present him which Gascoine understanding he caused the Vintner to be Indicted for this also who was after Fined for it Palmer 396. 397. Note A Man could not by the Common Law use as many and what Trades he would before the Stat. 5. Eliz. Memorandum John Walter Knight Lord Chief Baron a profound learned Man and of great Integrity and Courage being Lord Chief Baron by Patent primo Caroli quamdiù se benè gesserit fell into the King's displeasure and being commanded to forbear the exercising of his Judicial place in Court never did exercise it from the beginning of Mich. Term quinto Caroli untill he died viz. the Eighteenth of November 1630. But because he had that Office quam diù se benè gesserit he would not leave his place nor surrender his Patent without a scire facias to shew what Cause there was to determine or forfeit it so that he continued Chief Baron until the Day of his Death Cro. Car. 203. One Indicted for behaving himself immodestly and Irreverently at Church A CERTIORARI was prayed to remove an Indictment at the Sessions at Hartford against I. S. quod non reverentèr modestè se gessit during Divine Service but the Court refused to grant it for altho' it is punishable by Ecclesiastick censures yet they conceived it a proper cause within the cognizance of the Justices of Peace 1 Keb. 491. Slander ACTION upon the Case for Words against a Feme on a question asked her per quendam ignotum Did I. S. the Plaintiff Ravish you She answered Yes Had he the use of your Body She answered Yes Whereupon he brought his Action against Baron and Feme Foster conceived that in regard the Person is found to have done it falsò malitiosè without legal authority 't is a Scandal contrà by Twisden in one Emme's Case one that had a Child at Nurse came to a Surgeon with whom she was reported to be in cure for the Pox who on enquiry told the Father she had the foul Disease which was held no Scandal not being spoken malitiosè with intent to Scandal her 1 Keble 542. Host and Oakeman Thou art a Thief and hast stollen my Maiden Head no Action lies 1 Brownlow 2. Justa occasio Loquendi IN Fox's Book of Martyrs there is a story of one Greenwood who lived in Suffolk that he had perjured himself before the Bishop of Norwich in testifying against a Martyr that was burnt in Queen Mary's time and had therefore afterwards by the just Judgment of God his Bowels rotted in him and so died But it seems this story was utterly false of Greenwood who after the Printing of the Book of Martyrs was living in the same Parish It happened after that one Prick a Parson was presented to the Living of that Parish where this Greenwood dwelt and some time after in one of his Sermons happened to inveigh much against the Sin of Perjury to which his Text led him and the better to deterr the People from it he told them this passage out of Fox That one Greenwood being a Perjured Person and a great Persecutor had great Plagues inflicted upon him and was killed by the Hand of God whereas in truth he never was so Plagued and was himself present at that Sermon and thereupon brought his Action upon the Case for calling him a Perjured Person and the Defendant pleaded Not Guilty And this matter being disclosed upon the Evidence Wray Chief Justice delivered the Law to the Jury That this being delivered but as a Story and not with any Malice or Intention to slander any he was not guilty of the Words maliciously and so was found Not Guilty This Case is cited by Coke 2 Cro. 91. and affirmed to be good Law by Popham when one delivers ought after his occasion as matter of Story and not with intent to Slander any See the Case 1 Roll. 87. 'T is cited too by Sir Robert Atkins in his Treatise of the Jurisdiction and Privelege of Parliament c. fol. 11. If a Man says he be in discharge of his Function and lawful Calling and discoursing of a subject proper for it in pursuit thereof tells a Story which he takes up upon Trust not knowing it to be false and it prove at last to be utterly untrue and an innocent Person is highly Slandered by it yet he shall not be subject to an Action of Slander for it the occasion of speaking shall clear him from the Malice without which the Action will not lie One calling himself by a wrong Name is arrested the Arrest is naught IN an Action of False Imprisonment by Coot against Lighworth the Defendant justified because he had a Warrant to Arrest I. D. and he demanded of Coot what his Name was who answered that his Name was I. D. and therefore he arrested him to which the Plaintiff demurred and had Judgment for the Defendant at his peril must take notice of the Party Moor fol. 457. Agreeable hereunto see Doctor and Stud 311. That if a Sheriff upon a Replevin deliver other Beasts than were destrained tho' by information of the Party that destrained yet Trespass lies for he shall be compelled by the Law to execute the King 's Writ at his peril according to the Tenor thereof and to see that the Act which he doth be lawfully done Note Grome's Case in Palmer's Rep. 395. I. S. knowing that Execution would be made upon his Goods procured I. D. by Covin to bring his Cart into his Yard to the intent that the Baily might take it in Execution and so to have Trespass against him the Bailiff did take the Cart but afterwards having knowledge of the matter sent the Cart back and I. D. brought Trespass but Lea Chief Justice held that the Bayliff might plead the fraud in excuse Bond in a Book good A MAN writes an Obligation in a Book and in the same Leaf he puts his Seal to it and then delivers the Book to