except in case where the Owner is bound to inclose 4. E. 4 19. 10. E. 4. 7. But if a man erect a wall part on my Land and part on his own if I distroy that on my Land and the rest by that meanes falleth downe it is excusable If a Feoffment be made to two joyntly one of them cannot dereigne the warranty without the other 48. E. 3. 17. Yet if a villaine and another purchase joyntly and the Lord of the villaine enter into a moyety he may dereigne the Warranty alone for therein the severance groweth by act in Law He that commeth into a Taverne and will not goe out in reasonable time or distraine for rent and killeth the distresse shall be a wrong doer ab initio 12. E. 4. 8. Because he misdemeaneth that the authority the Law giveth him Otherwise it is if I lend my horse to one to ride to York and he rideth him further yet the riding further is not unlawfull neither a generall action of Trespass lyeth against him upon the accord upon the case because he misdemeaneth but the authority that another hath given him Finch Nomot f. 47. If I be distrained and pay my rent and after am denied to have my goods delivered an action of Trespasse or detinue lyeth 21. H. 7. If I deliver a chest to one who breaketh it Trespasse lyeth 2. H. 8. If a Sheriff maketh an arrest and returneth not the Capias an action of Trespasse lyeth 8. E. 49. An executor commandeth the taking of the goods of the Testator and refuseth to prove the will a Trespasse lyeth 8. E. 4. 9. The Sheriff seiseth the goods of one outlawed and doth not charge himselfe in account the Outlawry being reversed or the party pardoned he shall have an action of Trespasse against the Sheriff 21. H. 7. 23. Injuria illata incorpus non potest remitti Reg. I. C. injury which is offered to the body cannot be remitted and the reason given by the Civilians is quia nemo membrorum suorum Dominus because no man is Lord and Master of his members but the power of them appertaine to God our Creator and the Prince our Protector which accordeth with the reason of the common Law which maintaineth as Bracton saith quod cita membra sunt in postate Regis as it is in the record of 19. E. 1. Rot. 36. vita membra sunt in manu Regis that the life and member of every Subject are under the safe-guard and protection of the King to the intent they may serve the King and their Country when occasion shall be offered Nay the Lord of a villaine for the cause aforesaid cannot maihme his villaine but the King shall punish him for mayming of his Subjects by Fine Ransome and Imprisonment untill the Fine and Ransome be paid for that hereby he hath disabled him to doe the King service Coke com f. 127. a. And therefore also doth the Law more carefully provide for the preventing and punishing of such forcible injury in particular between person and person because as Coke com f. 161. b. Max. paci sunt contraria vis injuria forcible injuries are most contrary to the quiet and repose of the Common-wealth which is the publick felicity both of Prince and people As if one doe but menace another with a weapon or staff or if he stretch out his arme or give any other token whereby his intention of striking doth appeare though never a stroake be given yet is it actionable 22. Ass Pl. 60. And upon an assault the Writ was Quare insultum fecit vulneravit maihemavit and though the injury did not appear to be a maihm yet was it allowed 43 E. 4. For the Law favoreth the Plaintiff in such Actions And though force be an enemy to peace yet is it a maxime in our Law Quod quisque in tutelam corporis sui fecerit jure fecisse videatur Fulb. l. 1. f. 91. whatsoever any one doth in defence of his body it seemeth to be done by Law according to the opinion of the Poet. Judice me fraus est concessa repellere fraudâ—m A maque in armatos sumere jura sinunt I doe conceive it a good fraud to be To repell fraud and lawfull eke for me To take up armes ' gainst those I armed see As 2. H. 4 8. Bract. If any man beat me I may lawfully beat him if I cannot escape without stâ—ips wounds or maihmes Nay 9. E 4. 3. I may beate him in defence of my goods or wife contrary to the resolve of 43. Ass 39. That it is not lawfull for me to beat him if I may escape with my life And 9. E 4. A servant may justify a battery in defence of his Master and 17. E. 4. 4. He that cometh in company of him who maketh the assault or cometh in to aid him is a principall Trespassor and if a Justice of Peace see a man doing of an assault he may presently arrest him by commandment or word to the intent that he may find surety of peace 9. E. 4. 3 And by the civill Law if any one do keep or nourish a Masty Dog Beare or Fox or some like beast which doth hurt or damnify another man he that receiveth the hurt shall recover damages against the Owner of the beast Fulb. l. 1. f. 81. And so at the common Law if a man hath a Dog which killeth Sheep and hath notice of the condition of the Dog the master shall be punished for it as may be gathered out of Dyer 28. H. 8. f. 25. Pl. 162. Otherwise if he be ignorant thereof or if it be done without the Masters incitation ibidem f. 19. And whereas in many cases that concerne Lands and Goods the Law doth deprive a man of present remedy and rather then to suffer an inconvenience turneth him over to a further remedy yet if the question be of a personall paine the Law doth give him present remedy because he holdeth no damage a sufficient remedy for a corporall injury which ground as Sir Francis Bacon ingâ—niously observeth some of the Canonists do aptly inferr out of Christs sacred mouth Amen corpus est suâ—ra vestimentum verily the body is more worth then rayment where they say vestimentum comprehendeth all outward things appertaining to a mans condition as Lands and Goods which they say are not in the same degree with that which is corporall Bacon Max. f. 30. As if a Sheriff make a false returne whereby I loose my Land yet because of the inconvenience of drawing things to delays if the Sheriffs returne should not be credited I am excluded of my averrement against it and am put to my action of deceite against the Sheriff and Summoners 5. E. 4. 80. But if the Sheriff upon a Capias returne a Cepy Corpus quod languidus est in prisona I may come in and falsify the returne of the Sheriff to save my imprisonment 3. H. 6. 3. So if a man
Ward within Lond. but God forbid but that the Jurors may find assets by descent in any other county within England for the Law is that the Plaintiff in such case shall have execution of all the Lands the heire had and peradventure he might have Lands in diverse counties and therefore though a place be named for necessity sake yet the Jurors may find all that which by law may be chargeable in such a case in whatsoever City and County it lyeth and so was the principall case resolved after in 10. Eliz. though it be not reported there and with it agreeeth 10. H. 6. 13. And the conceit of Brook 2. Mar. Attaint 104. that the jurors of one county are not compellable to find transitory things in another county was altogether denyed by the whole Court for they are bound under the paine of attaint to finde assets in any other county whatsoever for it may be that the executors have goods of the Testators in divers severall counties and that in none of those counties had by him there is assets vide ibidem plura And if the Excutors have any goods of the Testators in any part of the world he shall be charged in respect of them or if Merchants and others which have goods of great value beyond the Seas be indebted in England if those goods should not be liable to their debts it would be a great defect in Law Ib. Coke com f. 282. a. It is an ancient principle of the Law that for transitory actions the Plaintiff may alledge the same in what place or county he will and the Jurors upon not guilty pleaded are to be made to find for the Plaintiff neither can the assault battery or finding of goods c. alledged in another county be traversed without special cause of justification which extendeth to some speciall place as if a Constable of a towne in another County arresteth the body of a man that breaketh the peace there he may traverse the County but he must not rest there but all other places saving in the town where he is Constable vide ibidem plura But in the case of felony the triall shall be by the common Law in the same place where the offence was and shall not be supposed in any other place for in criminall causes the rule holdeth Ubi quis deliquit ibi punietur Coke l. 6. f. 47. b. where one offendeth there he shall be punished yet this rule faileth in treason to adhere to the enemy of the King without the Realme which is declared to be treason by the common Law by the statute of 25. E. 3. de proditionibus for least there should be a want of triall in matter of such consequence the adherence without the Realme must be alledged in some place within England and if upon the indictment they shall find any adherences out of the realme they shall finde the Delinquent guilty 5. R. 2. triall 24 but commonly they did indite him in that county where his Lands did lie which were to be forfeited and so it is declared by the statute of 35. H. 8. c. 2 vide Coke com 261. f. b. Saepe locus in delcto auget vel minuit culpam Reg. I. C. The place doth often augment or diminish the offence as he who striketh a man in Westmin Hall shall have his right hand cut off his Lands Chattels forfeited so if he strike a Juror and besides shall be committed to perpetuall Prison Finch Nâ—mot f. 25. If men tilt or turney in the presence of the King and if two masters of defence play their prizes on the stage and kill one another it is not felony Heb. Rep. f. 89. So tâ—e felonious taking of goods out of any Church or Chappel is sacriledge and a felony more hainous then ordinary and therefore more severely punished It was King Alureds Law Qui in templo quid clepscrit valorem solvito mulctampretio rei congruam pendito manum quacumque furatus est praecidito nec redimere manum potest nisi propria capitis aestimatione whosoever shall steale any thing in a Church let him restore the value let him pay a fine answerable to the worth of the thing let that hand with which he did steale be cut off neither could he redeem his hand but with the price of his life which in those antient times wherein offences were not so frequent was a grievous punishment wherin their was chiefly censured with satisfaction but in the succeeding worser times by the statute of 23. H. 8. It was made capitall without the benefit of Clergy So to kill the Kings Chancellor Treasurer Justices in Eyre and Assise of Oyer and Terminer being in his place and doing his Office is high treason Dalt 226. Si desit obedientia non adjuvat locus Coke l. 7. f. 24. b In Calvins case If obedience be wanting the place furthereth not Samaria in Syria was the cheife City of the ten Tribes but being conquered by the King of Syria and the Jews taken Prisoners and carried away into captivity was after inhabited by the Paynims yet because the people of Samaria were not under actuall obedience by the judgement of the chiefe Justice of the whole world they were adjudged alienigenae Aliens Luke c. 17. Where one of them who was cleansed of his Leprosy by our Saviour being a Samaritan returned and gave praise to God and is by our Saviour called an alien that is a stranger borne because he had the place but wanted the obedience and where obedience is wanting the place helpeth not And this agreeth with the divine saying Si locus salvare potuisset Satan de coelo pro sua inobedientia non cecidisset Adam in Paradiso non cecidisset Lot in Monte non cecidisset sed potius in Sodom If the place could save one Satan for his disobedience had not fallen from heaven Adam had not fallen in Paradise and Lot in the Mountain had not fallen but rather in Sodom A Paribus from equals PArium eadem est ratio things are to be construed according to equality of reason Coke l. 3. f. 12. b. As upon a recognisance acknowledged by the Ancestor or in a judgement upon an action of debt given against him if he dieth sâ—ised of two Acres whereof one is holden in Burrough english or having issue two daughters which make partition in this case if one be onely charged the other shall have contribution because they are in aequali jure in equall right So if a man be bound in a statute or recognisance and after his death some of the land descendeth to the heir of the part of the father and some to the heire of the part of the mother in this case one onely shall not be charged and if he be he shall have contribution against the other So in dower if the tenant vouch the heire in three severall wards every one shall be equally charged as it is agreed 11. H 7. 22. Ibidem
Law Wafrages and protection to the passing Merchants of the Sea was one of the principall causes of the payments of those duties Davis ibidem f. 12. And Dyer f. 43. Putteth a difference between a custome and a subsidy and saith that the custome for Merchandizes to be transported out of the Realme is an inheritance of the King and by the common Law and not given by any Statute and that appeareth by the Statute of 14. E. 3. which was the first Statute which maketh mention of any custome and that Statute doth not give or limit any Custome to the King but abridgeth and abateth the custome which was paid for Wool or Leather but a subsidy saith he is a Tax assessed by Parliament and granted to the King by the Commoners during the life of every King only which is made cleer by the case reported by Dyer 1 Mar. f. 92. where King Edward the sixth had granted a Licence to a Merchant stranger to transport all Merchandizes paying pro custumis subsidiis tot tantas denariorum summas quot quantas any english Merchant and Denizen should pay and no more And it was resolved by all the Judges after the death of Edward the sixth the grant was good for the Customes but void tor the Subsidies because the King had an Inheritance in the Custome as a Prorogative annexed to the Crown but in the Subsidies he had an estate only for life by act of Parliament But there is a third kind of duty payable for Merchandizes which are called Imposts or Impositions and these were sometimes rated and assessed by Parliament and then were they of the nature of Subsidies and sometimes were imposed by the Prerogative Royall to support the necessary charges of the Crown and then as the ancient Senator of Rome said Nihil magis justum est quam quod necessarium est There is nothing more just then that which is necessary Davis f. 12. vide ibidem plura The Impost upon Wines was first assessed by Parliament and limited to be paid for certain years which being expired is now continued by Parliament ibidem Opoâ—tet patrem familias vendacem esses non emacem Cato major Davis f. 10. The Master and Father of a Family ought to be a buyer and not a seller By the Grecians Kings were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pastors of the people and Emperors by the Romans Patres Patriae Fathers of their Country for their vigilant and Paternal care they were to take for the preservation and provision for the people for he is the publique Pater familias and is to bend his thoughts to the utility and commodity of the publique and as he is reputed a provident Father of a Family who hath more commodites to sell then occasions to buy so ought he to be a seller rather then a buyer and to provide that more native commodities be exported for sale and the less forrein Merchandizes imported to the buyer And therefore the little custome of forrein Commodties was then accepted of the King when but a little quantity of such forrein Wares were imported into England For in the time of Edward the first and after that in the times of Edward the third the native Commodities of England exported were of greater quantity and value by two parts of three at the least then the forrein Merchandizes imported by which King Edward the third raised so great a revenue out of the Native Commodities of his Dominions that it was noted for good Husbandry in that King for a Father of a Family ought rather to be a buyer then a seller but now it is altogether contrary for at this time the Out-gate is lesser then the In-gate and the forrein Commodities imported are of greater quantity and value by two parts then our native Commodities exported which is a great shame to our Nation to be so enamoured with Mercery and Grocery Wares imported by strangers and to expend upon those more then the value of all the Staple Commodities of our Country which will be in the end the decay and ruine of the Common-weale Davis ibid. Thesaurus regis est pacis vinculum bellorum nervi Coke l. 3. f. 12. b. The treasure of the King is the bond of peace and the sinewes of war And therefore the Common Law preferreth and advanceth the right of the King insomuch as Sir Henry Finch observeth you shall find it to be Law almost in every case of the King that is not Law in case of the Subjects and that with an intention to inhaunce the Kings Treasure and to replenish his Coffers whereby he may in time of peace advance the glory and honour of the Nation and in time of War be enabled to protect the Common-wealth against forrein incursions and invasions for the Kings Treasure is the bond of peace and sinewes of war And therefore in the case of the King which is not so in the case of a common person the body the lands and the goods of the Accomptant or Debtor of the King at the Common Law were liable to the execution of the King Dyer 234. before the Statute of 33 H. 8. c. 38. Coke ibidem and upon the same reason is this principall grounded Quando jus domini regis Subditi in simul concurrunt jus regis preferri debet Coke l. 9. 3. 129. b. when the right of the King and the Subject concur together the right of the King ought to be preferred As in Dame Hales case Ployd 262. Baron and Feme were Joynt-tenants of a term for years the Baron is selo de se he shall forfeit all and yet till the Office it surviveth but after the Office it hath relation before or at the least at the time of the death vide ibidem plura in Quicks case So Ploâ—d f. 263. b. If a Feme take husband and hath Issue and the land descend to the Feme and the Baron enter so that he is intituled to be Tenant by the Curtesie and then the Feme is found an Ideot and her Estate in the land is also found the King shall have the land and if the Feme dye the Baron shall never have the land by Curtesie for by the first possession of the Feme the Baron was entituled to be Tenant by Curtesie and when the Office is found the Title of the King shall have relation also to the first possession and so both the Titles commence at the same time but the King shall have the preheminence and because the Title of the King is in this case to the Frank-tenement of the land in that that he shall have the custody of it during the life of the Feme it shall utterly take away the Title of the Baron which before the Office found was vested in the Baron and therefore after the death of the Feme he shall not be Tenant by courtesie but the Issue shall have the lands out of the hands of the King if it be not