although for the most part it leaves the Cases of wills to be tried by the Ecclefiasticall Courts according to the Rules of the Civil and Common Law yet are there certan particular Cases of Lands and Chattells really and which she hath reserved to her self and those with as much brevity as we can we shall sum up 2. And in the first place all may give Legacies who are capable of making wills and who they are we have formerly mentioned but no man can rightly bequeath Lands or Tenements who hath not the possession of them at the time of the making of the will b Fulb. Par. e. Devises fo 37. a. 32. 34. H. 8. which is to be understood if no other person be not also in possession in his right or name for one may bequeath a Reversion 3. All men also are capable of Legacies who are not especially excepted by the Law which are religious persons and persons not yet in being although they afterwards shall be As if one makes a bequest to such a Colledge or Chantry of which name though there be not any at the time of the Testators death yet there happens to be one afterwards c Perk. 505 Fulb. ib. fo 35. b. but a Post humus in favour of Testaments Although he be in the Wombe is notwitstanding supposed to have being d Tearmes v. devise 4 A Husband although he cannot make a Gift to his wife in his life time because they are both adjudged one and the same person during Matrimony yet he may give and bequeath Lands unto her by will in regard that Legacies take no Effect before the death of the Testator by which this conjunction is dissolved e Fulb. ib. 36. a. 5. One may also give a Legacy to an uncertain person which may afterwards be rendred certain as an annuity is given to A. for life and after his death to him who shall first in the Morning enter Saint Pauls Church and to his Heires B. enters in the morning before any one else this Legacy shall inure not only to A. but to B. and his Heires also f Id. ib. 6. A Body politick unlesse by the Kings particuler Charter is not in capacity of receiving an Estate bequeathed g Perk. 505 7. By our ancient Law Fees could not be bequeathed by will h Id. 537. Brit. c. 34. 27. H. 8. c. 10. Dr. Stu. l. 1. c. 7. and c. 20. Dier fo 74. n. 14. but necessarily discended to the next Heires i Glan l. 7. c. 1. Bract. l. 2. c. 26. Dier fo 127. n. 54. except contrary to the Common Law the particular custome of any City or Corporation permitted k Lit. l. 2. c. 18. F. N. B. 198. I. unlesse the Heir consented to such bequests Whosoever therefore would by his will give Lands to another did first infeoff one in them to the use of himself and his Heirs l Perk. 528. and by this means he might bequeath the use of the said Lands although he could not the Lands themselves unto a third person m Id. ib. 97. but later times have remedied this inconveniency or rather poor and weak comment and hath deereed that not only uses but even the Lands themselves with some moderation may be bequeathed n 32. H. 8. c. 1. Bro. testam 19. Swinb part 3. S. 4. Coo. l. 7. Case Butler fo 30. for of a Knights Fee we are yet obliged to leave the Heir a third part and we are prohibited the bequeathing of Lands by a will nuncupative in regard of the deceit and fraud they are subject unto o Dier 155. n. 21. 8. If a man and his Wife ioyntly purchase Lands to them and the Heirs of the man and the Husband bequeath them after the death of him and his wife to a stranger this is good For in this case the Husband hath the Fee-simple p Perk. 539. 9. If there be two Joynt-Tenants in Fee-simple where by the custome of the place Lands and Tenements may be given by will and one of them bequeaths his right to a third person this is void For since a Will is not in force untill the death of the Testator the right of a Joynt-Tenant at the very instant of his death is transferred by law unto his fellow q Inst Jur. Com. c. 15 which notwithstanding is otherwise in Partners because Partners have their Lands by blood and Inheritance and not by the Courtesy or pleasure of a Donor Joynt-Tenant have theirs r Ib. 10. A man may also appoint by his will that his Executors may sell those Lands which he hath in Fee and which he may bequeath and that the profits arising from such Saile may be imployed for pious uses or for the good of his Soul s Perk. 422. 541. 543. 21. H. 8. c. 4. but iâ— they shall cease to fulfill the command of the Testator within two years the Heir may enter upon them and eject them t Fulb. par c. Devises fo 40. Plow fo 523. 11. A. being Tenant in Socage gives the Lands which he hath in Fee-simple to his wife for tearm of life the Remainder to B. his Brothers Son and the Heires males of his Body and if it shall happen the said B. to dy without Heires of his Body begotten not expresly nor implicitely naming males there the said Remainder to C. another Kinsman and his Heires males in Fee-simple and for defect of Heires males of the said C. then to the next Heirs males of the said lineage lawfully begotten B. dies leaving only Issue D. a Daughter the question is whether D. shall have the Lands by force of those words and if it shall happen c. or some other Heir male more remote But it was adiudged that those words did not create a general Tail to the Heirs of B. or hinder the Lands from remaining to the Heirs males according as devised u Dier 171. n. 7. 12. Chattells of any sort may be bequeathed by will w Perk. 511. wherefore the profits arising either from the custody of a Body or Lands of a Ward a Lease for years Horses Oxen Sheep Gold Silver either in Plate or Money Rings all manner of Vessells without exception are diviseable x Id. 525. unlesse the Testator had but a Joynt possession of them at the time of his death y Dr. and. Stu. l 1. c. 6. Lit. l. 3. c. 3. and unlesse they be affixed to the Fee or Free-hold and cannot being reputed parcell of it be removed without wast z Bro. Execut. 65. 13. Monies also due upon Bond or Condition may be devised for that after they are paid to the Executors they are due to the Legatee a Perk. 527. 14. Chattells which a man hath in right of his Wife as Leases for years c. are deviseable b Id. 560. 15. A thing uncertain may be also devised so long as it may be reduced to
VII NEither is there amongst us any the least use of this Law which for so many ages together was by the Romans abrogated as envious and cruell Of those which are in their owne and those which are under the power of others TIT. VIII WEE have discoursed before of the state of Persons now we are to make another division And this is that every one is either in their owne power or in the power of others a Brac. l. 1. c. 9. Fet. l. 1. c. 5. 1. In their owne power are all who are not subiect to others But wee shall by consequence know those which are in their owne power when we shall declare who are under subiection to others b Brac. ib. â— 2. 2. In the power of others are Servants which power of Lords over their Vassalls is by the Law of nature and this was sometimes a power of life and death But now it is more restrained by our civill Law so that now power over life and lims is onely annexed to the Supremacy so that he who shall kill his Servant shall be no lesse punished then for killing a stranger for it is very necessary for the Common wealth that no one doe abuse their owne and in this they have Law against their Lords that they may have Justice against them for life and limme in case of any cruelty or intollerable iniury exercised by their Lords c mahemium Lit. l. 2. c. 11. As if you destroy them that they cannot enjoy their Wainage free and safe But this is true onely in those Villaines which hold in Ancient Demesne of the Crowne for it is otherwise of others Because when ever the Lord shall please he may take from his Villaine his Wainage together with all his other Goods whatsoever d Brac. l. 1. c. 9. n. 3. Flet. l. 1. c. 5. 3. And as to free-borne People also some are in the power of others as Wards under the protection of their Guardians or Freinds or under the tuition of their Lords e Flet. l. 1. c. 9 Of Paternall Jurisdiction TIT. IX UNder the power of Parents are Children borne in lawfull Matrimony so are Nephews and their Children as to Grandfathers and Great Grandfathers on the Fathers side a Brac. l. 1. c. 9. n. 4. and l. 2. c. 24. n. 4. and Stat. Mer. an 20. H. 3. c. 9. Jerm Jur. Ver. Bastardy Flet. l. 6. c 1. But this is true as to Nephews and their Children onely where their Fathers dye and they cannot by any meanes goe out of their protection b Brac. l. 1. c. 10. Brit. c. 119. fol. 270. Flet. l 1. c. 6. 1. Those which are not ligitimate are not reputed Children as in case of Adultery and otherwise nor those who are brought forth contrary to the form of man kinde As Brac. l. 1. c. 6. n. 7. and l. 4. tr 3 c. 13. n. 2. Flet. l. 1. c. 5. and l. 4. c. 17. and l. 6. c. 56. Monsters and Prodigies in nature but those which are irregular only in members as having six fingers or four or only one shall not for that be esteemed illegitimate 2. But we are to observe that that ancient Jurisdiction which the Romans exercised over their Children f Institut Imperiales cod tit is much more qualified with us For the English only take the profits of the Labours of those Children which are under the age of twenty one years And that in such manner that if they live at home with them they may do their own notwithstanding that they are retained in their parents business and that they finde them dyet and cloathing But if they be put forth to learn any other Arts their Masters have the sole benefit of their work unless any condition forbid for that a condition may prevail even against Law g Bract. l. 2. c. 5. 3. Whatsoever Estate whâ—ther adventitious or bequeathed especially Land shall fall unto Children the Father shall not so much as have the profits of it but shall be liable to give an account to his Childe so soon as it shall come of age But that I may explainit this Parentall power relisheth more of that love and respect which Children bare to Parents as a principle infused and instilled by the Law of Religion and nature rather then of any compulsion of force by which the Law obligeth h Cook l. 3. Casu Radclif fol. 37 38. for our Decalogue which the Romans wanted inculcates this respect with promise of divine Benediction And the only curb with which Parents restrain those that become refractory is the power of disinheriting which is not often times threatned in vain 4. Now the Guardianship of wards is double one by vertue of the common the oother of the Statute Law i Cook ubi sup And it is true The Common Law gives an action of treâ—â—pass to the Father against him that shall take away his Son and Heire which Action 〈◊〉 good in reason because the Marriage of the Son belongs to him k Bract. tit Tresp n. 92. 5. Matrimony is a conjunction of mâ—â— and woman comprehending society of the life individuall l Bract. l. 1. tr 5. c. 25. n. 1. c. 3. n. 8. l. 2. c. 14. Brit. c. 107. Flet. l. 5. c. 25. And so strict is this coâ—iunction in our Law that man and wife are reputed but one person m Brook Tit. villena 39. Bar. Feme Doct. Stu. c. 1. c. 24. Perk. 217 As but one flesh it the divine n Gen. 2. 24. Fl. l. 9. c. 19. 6. The Bishop hath determined by the Câ—â—non and Statute Law concerning Legitimâ—cy and Illegitimacy and make cerrificaâ—â— thereof either to the supream power or the Justices as often as is required o Lib. Intr. tit Bast f. 104. Brook eod tit Bract. l. 5. tr 5. c. 6. n. 3. c. 19. n. 2. a. 25. cod 3. sta 2. ca. uni 7. According to the Law and custome 〈◊〉 England that Issue which is born before marriage is a Bastard But he which marries 〈◊〉 single woman who is with Child by himself oâ— any other makes her Issue ligitimate although it be born immediately after marriage for in this case marriage is a testimony where the Child is q Fle. l. 1. c. 5. c. 14 15. But it is to be distinguished in the case of him that marries a Widdow with Child viz. Whither she be apparently p Glan l. 7. c. 15. 1 Brac. l. 5. tr c. 19. n. 2. an 20 H. 3. with Child at the time of Marriage or whether it be doubtfull For in the first case it shall be â—eputed the Issue of the former husband in the other of the latter r Term. Jur. tit Bastardy Of Marriages TIT. X. A Wife by the Law of England is under the power and Jurisdiction of her husband a Dyer f. 79. n. 51. Plow f. 307.
by consent of their Guardâ—ans shall marry within the age of twelve b Lit. l. 2. c. 4. and here both Sexes have the same Laâ— that after marriage so had under age by designation of the Guardian They are no morâ— obliged to his arbitrement the bond of Matrâ—mony being dissolved by death c Brac. l. 2. c. 37. n. 6. Lit. l. 2. c. 4. And thâ—â— by an inequality of marrying them thâ— Guardian shall loose his ward and shall liable to satisfie the freinds of the ward so disparaged for so great a damage d Brit. c. 67. Lit. l. 2. c. 4. Instit Jur. com 24. 9. Heretofore when an Heir female was at â—ge and held of divers Lords in Fee it was sufficient for her in marrying to require the â—ssent of the next capitall Lord to whom her Ancestors had done legiance e Eract d. l. 2. c. 37. n. 6. but at this day she that is of age is not obliged to ask the conâ—ent of her Lord to marry f Brook tit Guard 7. 10. If the Heir of Tenant in Chivalry not being of that age at which by the Law he may consent to marry shall marry in his Fathers life time his Father being dead the Lord of the Fee shall have a Writ of Ravishment because it is in the power of the Heir to repudiate his wife when he shall come to that full age g F. B. 143. m. and a woman who holdeth of the King in this manner being thus married is at her own election when she shall come to age whether she will adhere to the former marriage or accept of such a Husband as the King shall tender h 17 E. 2. Stat 1. c. 5. 11. Those Widdows also which are termed the Kings Widdowes do make Oath not to enter marriage again without the Kings consent And if they do otherwise the King may by distress seise himself of those lands and renements which they have in Dower untill they or their Husbands shall pay such Fines as the King at pleasure shall impose i Slan Pâ—er c. 4. Glan l. 7. c. 12. Flet. l. 7. c. 23. F. B. 263 174. 17 E. 2. 1. Magna charta also doth affirm that common persons may exercise the same power over their Widdows k c. 7. And there is this reason given least the Kings Tenants should enter marriage with his capitall enemies l Fl. l. 1. c. 13 12. Whosoever shall steal or draw away anothers ward although he restore the ward afterwards unmarried or satisfie for the marriage shall for such trespass suffer imprisonment for two years And if he doth not restore the said ward but marries him or her and is not able to satisfie for the same he shal abiure the Realm or be imprisoned during life m Flet. l. 1. c. 13. 13. If any person above the age of fourteen shall draw away an unmarried woman under sixteen without consent of Parents or at least those who had the Gard of her he shall suffer two years imprisonment without Bail or at least be fined for his said offence according to discretion of the Star chamber n This power is now in the Chancery But if he shall defile her being so stolne away or any way contract marriage with her against the consent of her Parents or Guardians he shall be imprisoned for five years or much according to the discretion of the said Court. And if such woman being above twelve and under sixteen shall by her own consent marry with such ravisher she shall forfeit all and singuler those Lands Tenements and Hereditaments which at the time of such consent given she had either in possession Reversion or Remainder o 4 5 Phi. Mar. c. 8. Cook l. 3. Nut. Case f. 39. 14. Villaines are not to marry without consent of their Patrons p Lit. l. 2. c. 11. Also if a freeman shall take away ones native in marriage without the consent of her Lord although the Lord cannot take her from him yet he may have his action for the Ravishment of her q Idem ibid. 15. Women that marry noble men shall have the appellation and priviledges of noble persons for that dignity they derive from their husbands untill they shall again marry with common persons q Idem ibid. for by marrying they make themselves the same flesh with their Husbands r 20 H. 6. c. 6 but if it shal be demanded whether a woman more noble marrying with a man lesse noble or a common person may free her Chaplaines for non-residency according to the Statute in that case provided we 21 H. 8. c. 13. cannot answer without distinguishing For second marriages will not prejudice those which shee had during widdowhood But she cannot impart the same priviledge to them which she shall have after the second marrying because her nobility is extinct t Cook l. 4. Actons Case f. 117. Notwithstanding that it seems to be otherwise with those which are born noble and derive not their nobility from marriage u Id. ibid. for that such who draw their nobility from their Ancestors are more esteemed and honored with us then they which take it onely from their Husbands 16. If any come together against the leviticall Law we neither understand them man and Wife nor do we allow of their contracts marriage or Dower Their Issue gaining no other esteem then to be termed naturall w 32 H. 8. c. 38. Those only are said to be divorced by our Lawyers whose Marriages are nul'd for that there may be a seperation a mensa thoro and yet the Matrimonial bond remain unbroken x Term. Jur. verl Divorce 17. Those which are unlawfully begotten cannot possibly be made ligitimate But they are often made capable of Preisthood or exercising sacred functions by dispensation y Bract. l. A spurious Issue may by silence and patience be rendred legitimate as in case a Wife shall conceive by another man besides her Husband notwithstanding that it be apparent yet if the husband entertain such Issue in his Family and bring it up and call it as his Child he makes it his owne lawful Son and Heir which is equally true if he do not so call it expresly if he do not remove it and renounce it nor is it materiall whether the Husband be ignorant or knowing of it or whether he doubt for it shall be reputed his lawfull Heir because born of his Wife so long as it may be presumed that her Husband begot it And this may be said also of a supposed Issue for that often a common opinion passeth for a truth z Bract. d. l. 2. c. 27. n. 4 5. 18. There are with us two consequences and effects of Marriage The first that all moveable Goods which by us are tearmed personall Chattells which the Wife brings with her do presently passe into the husbands Patrimony without any distinction being thereby
Croâ—â— Nor will an Obligation to warranty hinder unlesse it were upon Exchange Or otherwise for the value in Fee or service Oâ—â—â—least unlesse they were granted for the Câ—â—modity and Honour of the King as the Bâ—ronies of Bishops a Flet. l. 1. c. 8. 17. c. But this Right 〈◊〉 now almost wholly worne out either by the munificency of our Kings or by the 〈◊〉 much negligency of our Common-wealth And therefore King James did worthily study a wholsome remedy for so pernicious 〈◊〉 mischeife 1. Nor can a Husband so alienate the Inheritance or Joynture of his Wife but thaâ— it may be recovered by her or her Heirs after his Decease b Glan l. 6. c 3. Brit. c. 34. F. N. B. fol. 193. d. 2. Those who hold of the King in Capitâ— either by Knights service or Socage cannot without punishment alienate their Lands without license c Id. fo 175. A Bro. aliâ—nat tenures 69. 32 H. 8. c. 1. Yet some are of opinion that such alienation is good for the Buyer or Feoffee against the Seller or Feoffor although the King cannot be prejudiced by it d Bro. Testaments 34. 3. An Infant e F. N. B. fo 192. g. Perk. 3. Grants 15. â—9 Mad-man f F. N. B. fo 292. C. Monk g Perk. ib. 3. or Feme-covert h Id. ib. c. 11. Bro. Exec. 175. cannot alienate Nor can a villain those things which himself hath purchased i F. N. B. 202. l. if his Lord be possessed of them Or if they be not possessed in case hee be the Kings villain k Littl. l. 2. c. 12. 4. There is also an old Law lately revived by an Act of K. James which to the subversion of the Church was almost lost through neglect wherein Arch-Bishops and Bishops are prohibited to alienate the Fees of their Churches l 1 Jac. ses 1. c. 3. 5. Lastly those who otherwise may alienate in some cases cannot namely Lands or Tenements to a Body politick whether Ecclesiasticall or Seculer m 7. E. 1. 18. E. 3. c. 3. 15. R. 2. c. 5. F. N. B. fol. 221. Q. without obtaining the Kings license for alienating it in Mortmaine And on the other side Religious Colledges which were founded by the Kings of England are prohibited to alienate their Lands without the Kings License and permission n Westminst 2 c. 41. 6. And on the contrary it sometimes happens that he who is not Owner may alienate for a Creditor by contract may alienate a pawne or mortgage although the thing be not his As if it be agreed in the beginning that it shall be lawfull for the Creditor to sell the Pawne if the money be not paid So also may a Wife Apprentice or any other Servant which a Merchant appoints to sell Commodities in his Office or Shop o F. N. B. fol. 120. H. Bro. tit Contract 37. 40. or any other person who hath command from the Owner p New booke of Entries trespass in Agist 1. Ejectm firm 10. 7. And sometimes it falls out that he who hath a full power to alienate a thing cannot doe it but after a certain forme or manner for the King can neither purchase nor alienate without that special method of Entring which we call Record q Plow 553. By what person wee may make acquisition or gaine to our selves TIT. IX NOw we are to know by what persons wee may purchase or gaine to our selves And know that we may legally by our selves our Wives our Servants Male or Female by Sons or Daughters which are under our protection by Free-men who serve us provided their Deed be necessary and warrantable and approved a Brac. l. 1. c. 9. n. 3. l. 2 c. 11. n. 12 c. 18. n. 6. l. 3. tr 1. c. 2. n. 12. Brit c. 35. 38. Lit. l. 2. c. 11. Dr. Stu. l. 1. c. 8. l. 2. c. 18. And also by those Servants b Flet. l. 3. c. 13. c. 15. l. 4. c. 11. c. 12. who are not under our power as well as by those who are provided they be not under anothers yet so as we take no benefit by them before it be determined whose they are so also by a Common Servant and that as well by anothers as ones owne which we do bona fide possesse and by such a one of whom we have an use 1. And this may be done also by Procurators Tutors Keepers or Guardians who either bargain in our name or are in possession c Brac. l. 2. c. 18. n. 6. Flet. l. 3. c. 4. c. 15. And the same is to be understood of those who are naturally deafe and dumb d Id. ib. 2. The Sons and Daughters also of Villains which are under the power of their Lord without manumission If they make a purchase without the bounds of the villainage have no Heir but their Lord. If so be that he take possession of such Tenements either in the life of his Villain after his Death e Brac. l. 4. â—r 3. c. 13. n. 1. Of ordaining last Wills and Testaments TIT. X. THe third kind of Donations which are by reason of Death are last Wills and Testaments a Brac. l. 2. c. 26. Flet. l. 2. c. 57. Now a Testament is the determination of our Will concerning that which one would have done after his decease b l. 1. de â— Testament And it is double Viz. Proper or Improper That which is properly so called is that last Decree of a man in which hee names his Executor c Brc. Test 20. And hee is in the place of him whom the Romans called Haeres is as the Basis of the Testament d Swin par fo 1. Sect. 3. n 19. representing the state of the Testator That which is improperly called a Testament is any other lasâ— wil whether a Codicel or Donation by occasion of Death or Letter e Valiâ—ius in com sup Instit tit de Testam ord in pri n. 9 10 11. And either of these may be two-fold Viz. either written or Nuncupative f Perk. Testam 476. but Lands cannot be given by a Nuncupative will g 32. H. 8. c. 1. Coo. l. 3. Bakers case fo 31. Dier fol. 53. n. 13. fol. 72. n. 2. fol. 143. n. 54 55. 1. That rigorous way of Solemnity which the Romans used in making of Wills is long since abrogated by the Canon Law which counts two Witnesses before the Parish Priest sufficient to maintain or prove a Will h C. cum esses 10. extra testamentis Nor doth the Custome of England oblige so much as the Decretall for with us it is sufficient to pronounce a will before two Free-men whether Clergy or Lay i Brac. l. 1. c. 16. n. 2. Glan l. 7. c. 6. Dier fo 52. n. 13. Yet our Sages doe for very good reason perswade men
because that had this Condition annexed viz. I ordain A. mine Heir and if he will not be Heir then my will is that B. shall be my Heir e Inflit. eod now this of ours iâ— not bound but is rather tacitely imposed contrary to the Legator as namely thus I give and bequeath such a Fee to A. and if he accept it then I will that such or such shall be his Heir or Successor f Westminst 2 c. 1. Dr. Stu. l. 7. c. 24. 2. In like manner if we bequeath any thing conditionally to any one we make Substitution to another in Case the condition be not performed for Example I give a hundred pounds to A. when he shall marry a Wife or if he shall not get a son of my Daughter lawfully then I give the said hundred pounds to B. Of Pupillary Substitution TIT. XVI IN this Substitution we do not so much regard the power of our Countrey as the liberty of tâ—e Testator so that a Legat oâ— may make a Substitution Pupillary either to his own chidren or to strangers Legatees who are under age As I give to A. my own child or anothers a hundred pounds when he shall come to age and if he shall die before then I bequeath the same one hundred pounds to B. But in regard that Cases of Wills are for the most part tried in the Ecclesiasticall Courts and by the Rules of the Civill and Pontificiall Law a Bra. l. 2. c. 26 n 2. therefore our Law hath as it were past by for the most part this and other things of the same nature and leaveth them to be determined by the Civill and Pontificiall Law How Wills are invalidated TIT. XVII WIl ls cannot be justly made ab initio by those who are not permitted to make Wills those who are we have mentioned before they may also be nulled by a later Will a Perk. 476. 479. 480. Fulb. paral Devises fo 47. or invalidated by Treason c. as where one is condemned for Treason or Felony after his Will made b Stan. pl. corp l. 3 c. 20. and c. 32. or if the Testator revoke his Will or be deprived of the Executor whom he named c Bro. Exec. throughout 1. Suppose A. make two Wills one in the sixth the other in the eighth year of Eliz. at length he is sick and speechlesse B. his familiar friend comes unto him giveth him into his hands both the Wills and desires him to return that which he would have stand for his Will A. returns that which was made the sixth yeare in this Case that will which he returned shall be esteemed the later d Perk. 479 2. And it happens sometimes that a mans will which according to the Civill Law is ambulatory or alterable untill Death cannot be altered in regard of prejudicing another Contract upon which account the will was made for Example A. is seised of Lands in Fee which he alienates to B. upon condition that they shall be his for life to the use of the said A. the Remainder e in ip Co. I am arcisc l. omnium 19 C. de Testa f Dier fo 49. n. 12. to C. and his Heires for ever and upon this A. makes his last will after having given the possession to B. This will quatenus to the alienation cannot be nulled by a later and the Reason is because the use of the said Lands do immediately belong to C. to whom the Remainder is transferred so that he may immediately sell them if he please g Id fo 325. n. 73. Perr 480. Of those Wills which were called by the Civilians Testamenta inofficiosa TIT. XVIII THe Plaint or Action in the Case of Testamentum inofficiosum is not in use with us for as concerning Lands holden by Knights Service in case the Father do not leave his lawfull Heir either while he lives or at his death a third part according to the Statute the will is void as to that part a 32 H. 8. c. 1 so that the Heir may notwithstanding take possession thereof or else if he have gotten it he may immediately himself refuse b Brac. l. 2. c 30 n 2 the parcell bequeathed or quit it or remove it by Law c Id ib 1. For the disposing of Chattells there are severall Customes in severall places of which there remain very clear signes in the ancient writers of our Law d Glan l 7 c 5 and 7 Brac l 2 c 26 n 2 but by the Common Law the Testator had alwayes a Free will of disposing e Id ib wherefore that writ which is called Breve derationabili partebonorum which liâ—s for the wife or children against the Executors for the recovery of part of the Goods f Regist fo 142 b F n 122 â— is not generall but peculiar to certain Countreys where the Custome is that Debts being paid the Remainder should be divided into parts viz. one part to the wife the other to the Children and the third to be left at the will of the Testator Of the Quality and difference of Heirs TIT. XIX HEirs as they are taken with us were necessary in time past as to the driving an Inheritance from our ancient Predecessors to the next Ancestor a Glan l 7 c 1 as they are now with us as to part b 32 H 8 c 1 and that not onely as to a Succession in the Estate but also as to the drawing upon themselves the Debt of their Ancestor c Brac l 2 c 16 n 7 and they were also for ever bound and obliged to warranties that is to the assurances which either they or their ancestors ingaged and promised to those to whom they sold any Land 1. But for that it is evident that children naturall and legitimate are preferred before others to Succession it were not amisse to see the Estate and difference of Children which really is very much for of Children some are naturall and legitimate and of this sort some are Sons and Heirs some Sons but not Heirs some also are Heirs of the Father some of the Mother some both of Father and Mother some also are not Heirs although legitimate and naturall some by accident begin to be Heires and some cease to be so so also of naturall and legitimate Issue some are near some more near some are removed some more removed d Brac. l. 2. c. 29 30. Brit. c. 118. Coo. l. 3. Ratc. Case fo 40 41 42. Plow 28. Flet. l. 6. c. 1. but of this elsewhere Of Devises TIT. XX. THat kind of Donation which is in Case of Death is where the Testator had rather that himself should injoy the thing bequeathed then that the party to whom it is bequeathed should have it and yet that he had rather that the party to whom it is bequeathed shall have it then his owne Heire a Brac. l. 2. c. 21. n. 1. 1. Our Common Law
seised either in his life time or at his death namely upon the day on which he died and if the right discend to more Heires successively and without Seisin yet the Heir hath the same Seisin appertaining to him as the Ancestor had in the time of his life or at his death And where there is a participation or meeting of Propriety with the Seisin the Heir hath immediately Ipso facto a Free-hold b Glan and. Bract. ib. 25. E. 3. Stat. 2. and 42. E. 3. c. 10. Flet. l. 6. c. 1. 3. Our Authors do not make in the case of Heirs a like division some distinguish them into nere and more Remote c Glan l. 7. c. 3 and some into neer and more neer remote and more remote d Bract. l. 20. c. 30. n. 1 Brit. c. 118. Flet. l. 6. c. 1. and 2. 4. If one have many Sonns they are all neer Heirs those that were last born and those that were born before them e Bract. ib. and so are Daughters when Sons faile f Glan ib. The next Heir is he who was born first g Bract. ib. unlesse the custome of the place hinder h Glan ib. or that he be a stranger and the younger Brother a Denizen i Dr. and Stu. l. 1. c. 7. and c. 20. 6. An Heir remote is where one hath many Sons and Daughters the Sons are neer heirs and the Daughters remote this holding alwaies for a Rule that the males shall be preferred before the females of the same degree k Bract. l. 2. c. 30. n. 3. 7. If there be many Sons and no Daughters but Grandsons the Sons shall be neere Heires and the Grandsons remote l Id. ib. if there be many Daughters and no Sons they shall be all next Heirs m Glan ib. 8. So may they be tearmed more remote in respect of the Inheritance being more remote as the lineall Nephew or Neices Son his Grand-son his great Grand-son his great great Grand-son c. In the direct line or if there want of that line then in the transverse Ad infinitum n Bract. l. 2. c. 20. 9. It is the ancient custome of England that the eldest Son should succeed as Heir to his Father but where there is no Son but Daughters then all the Daughters shall be Co-heirs o Dr. and. Stu. ib. Glan ib. Flc. l. 6. c. 1. which is also true in Nephews their Children where males are wanting 10. And this was alwaies a Maxime that a Fee-simple could never ascend from a Son â—o a Father or Mother or any other Ancestor â—n a direct line p Coo. l. 3. fo 40. Ratlifes case Dr. and. Stu. ib. Bract. l. 2. c. 29. Lit. l. 1. c. 1. Brit. c. 119. nor can any one in a â—ransverse line succeed so long as there is an Heir to whom it may discend in the direct q Bract. l. 2. c. 31. n. 1. Flet. l. 6. c. 2. 11. That Issue which is born before marriage is by our Law a Bastard nor can it succeed in an Inheritance nor can a Bastard have any Heir save of his own Body r Dr. and Stu. ib. 20. H. 3. c. 4. Perk. 49. 50. 12. Chattells neither personall nor reall come unto the Heir but by the custome of the Kingdome to the Executors or from an Intestate to the Ordinary and from him to the Administrators whom hee shall appoint s Glan l. 7. c. 16. Perk. 48. or if no body will administer then ought the Ordinary to sequester them upon his own perill t 13. E. 1. c. 19. 31. E. 3. c. 1â— 21. H. 8. c. 5. Flet. l. 2. c. 57. Dier fo 277. n. 57. 13. The Lord of the Mannor is in stead of Heir when either through defect or in case of Felony the blood is extinguished u Flet. l. 6. c. 1. yet at this day this is not without distinction Of the legall Succession on the Fathers side TIT. II. IN the transverse or collaterall line the Rule is that those are Heirs who partake of the whole Blood with the party deceased For example A. hath Issue B. a Son and C. a Daughter by one Venter and D. a Son by a second Venter and dies B. succeeds him and dies without Issue in this case C. the Sister shall succeed and not D. a Lit. l. 1. c. 1. Brit. c. 119. n. 7. Flet. l. 6. c. 1. 1. So also A. having a Brother B. and two Sons viz. C. by one Venter and D. by another dieth to whom C. succeeds and dies without Issue in this case B. the uncle who is of whole-blood shall succeed and not D. the Brother b Lit. ib. Coo. l. 3. Rat. case fo 40. but if B. dy without Issue then D. shall succeed being of intire blood with him both by the Grandfathers side and Grandmothers And therefore if B. had not been Brother to A. both by Fathers side and Mothers side it should have been otherwise 2. The collaterall line is double one descending by the Brother to his Children the other ascending by the uncle but none succeed on the ascending line but for default of Heirs on the descending c Bract. l. 2. c. 30. n. 1. Brit. c. 119. 3. He is Heir in the collaterall discending line who is neerest in degree and if this line fail then he who is next to the party deceased in the ascending collaterall line d Bract. ib. Flc. l. 6. c. 2. 4. If there be two in the same degree and both males the elder is to be preferred but if they be male and female the male is Heir as in the direct and right line e Brit ib. n. 1. 2. and 7. 5. Where an Estate comes by the Mothers side there the Son dying without Issue the next of kinn on the Mothers side is Heir and not the Brother of the Father f Id. ib. but where the Son purchaseth an Estate with his own Mony and dyeth without Issue there the next of kinn on the Fathers side shall succeed and not on the Mothers side unlesse for defect of Heirs on the Fathers side g Lit. l. 1. c. 1. Coo. l. 3. Rat. case fo 39. but the Heir on the mothers side shall succeed rather then the Land shall escheat to the Lord. h Plow 444. 6. A. hath two Sons B. and C. B. in his Fathers life time commits Felony and is punished with Death after which A. dies the question is whether the Fee whereof A. died seised shall escheat to the Lord or discend to C. the second Son And here it is to be considered whether B. dyed without Issue for then it discends to C. otherwise it shall escheat i Dier fo 48. n. 15. but if B. had been condemned living his Father and survived him In this case notwithstanding his dying without Issue the estate should have escheated and not discended to C. k
Kitchin tit Escheat f. 110. Of the Tertullian Decree TIT. 3. WEE in the case of Fees follow the Rigour of the twelve Tables which will by no means suffer an ascending from Children to Parents a Bract. l. 2. c. 29. n. 1. wherefore if this seem harsh to any one we shall wish him a Tertuilian or Claudius to perswade our Senate to the contrary Of the Orphitian Decree TIT. IV. CHildren with us doe equally succeed to Inheritances comming from the Fathers or Mothers side and that by the same rules and in the same degrees a Flet. l. 6. c. 9. wherefore we have no need here of an Orphitius Of the Succession of Cozens by the Mothers side TIT. V. THe Romans called those particulerly Cognati which were allied by the female side a Ult. S. 1. â— de gradibus affinitatis but there remaines nothing to be spoken of them the two former Titles being considered b viz. The first and second of this booke where we have shewn That these are never to succeed as Heires but for default of Heires on the Fathers side which is so to be understood that the most remote Cozens on the Fathers side discending in a direct line but not in a collaterall are to be preferred before the neerest on the Mothers side for the great great Grand-child of my â—â—neall Niece or of my Sister shall succeed 〈◊〉 before my Sons or Daughters Cozen-â—erman c Bract. l. 2. c. 30. and 31. 1. This breifly I thought also to insert that 〈◊〉 default of Heirs in a right line discending 〈◊〉 in each collaterall line the Land shall â—scheat to the Lord of the Fee d Glan l. 7. c. 17. Bract. l. 2. c. 29. n. 1. Lit. l. 1. c. 1. F. N. B. 143. Of the degrees of Consanguinity TIT. VI. HAving mentioned degrees it is requisite to take a view of the persons who are â—n possibility of succession and who are preferred before others in succession from the first degree of the same line to the last a Bract. l. 2. c. 31. n. 2. 1. In the right line ascending are these Grand-Father great Grand-Father the great Grand-Fathers Father the great Grand-Fathers Grand-Father the great Grand-Fathers great Grand-Father and so ad infinitum b Id. ib. Flet. l. 6. c. 2. 2. In the right line discending Father and Mother are first which make the common root then Son and Daughter the Nephew and Neice and so Ad infinitum c Brac. and Flet. ib. 3. In the collaterall line ascending Brother or sister of Father or Mother make the second degree and so their Heirs Ad infinitum d Id. ib. 4. In the collaterall line discending are Brother and Sister and their Heires Ad infinitum e Id. ib. Of the Consanguinity of those who are servile TIT. VII THis Title is with the ancient Civilians reckoned as part of the former a Wesenb in the same Title noâ— doth our Law determine any thing in the cases of such as are manumitted contrary to the rules of those who are born free there Marriages being a like lawfull Of the succession of such as are made free TIT. VIII PAtrons are not with us admitted to succeed those who are made free in case they dy without Issue wherefore if any one purchase a Fee after Manumission and dy without Heirs the Lord of the Fee shall claim it by Escheat and not he who gave the party deceased his freedome a F. N. B fol. 143. T. c. the same rules are also for the Chattells of such dying Intestate as for those who were born free Of the assignation of such as are made free TIT. IX THere is no difference with us between those who are manumitted and those who are born free save that they some time were Servants wherefore we have no use of this kinde of Assignation in our Common-weath Of the possession of Goods TIT. X. THE supream power with us gives the possession of a Fee to the Heirs of them who hold the Fee of him by any kinde of service in Capite for he by his Prerogative hath the primer seisin of Lands a Stan. Prerog c. 3. and 13. F. N. B. fo 255. and. 256. c. nor can the Heires receive them but by his hands those who hold of other Lords by Knights service much more Tenant in Socage so soon as they come of age enter upon their Estates by right and in case their Lords hinder them may have their Action having satisfied the value of their marriage b 1. But for those goods which we call Chattells the Ecclesiasticall Judge who is in stead of the Ordinary give possession of them according to the Will or at least confirm the possession being taken to the Executors of the party deceased but if there be no Will then he grants Administration to the widow or next kinsman of the party deceased yet so that the goods shall be distributed according to his Judgement either amongst c 31 Ed. 3. c. 11. them or for pious uses d Linw. provin Of acquiring by Adrogation or Adoption TIT. XI THere is nothing hinders but that the English may adrogate or adopt and be adopted but in this Case the consent of both parties is solely essentiall for our Law determines nothing of this kind of acquisition unlesse that which naturally falls out between party and party in contracts Of him to whom Goods are granted for Liberty TIT. XII AS for those Servants who receive their Freedome from their Lords by Testament the cheif thing is the performance of the Will for it is not materiall whether the Executor will accept the Office For we have shewn before how ungratefull that old solemnity of the Romans in Case of Wills is to us Of Successions which were amongst the Romans by the Sale of Goods according to the Claudian Decree TIT. XIII WE have not this kind of acquisition amongst us yet have we something like unto it for the Fees and all other the Goods of Banckrupts who having consumed their fortunes withdraw themselves That their Creditors may not arrest them wheresoever they be found are divided towards the satisfaction of Creditors by such Honourable persons whom the Statutes in this Case mention a 34 H. 8. c. 4 13 Eliz. c. 7. but above all that most famous Act in King James his time doth most carefully provide in these Cases b 1 Jacob. Ses 1. c. 15. Of Obligations TIT. XIIII WE have before treated of persons and things and are now to speak of Actions a Brac. l. 3. tr 1. c. 1. now an Action comes from precedent Obligations as a Child from a Mother b Id. ib. n. 2. an Obligation is a legall Bond or tie whereby we are necessarily bound to the giving or doing of any thing c id ib. c. 2. n. All civill Obligations may be divided into two kinds Obligations by the Common Law and by
Lit. l. 3. c. 4. unlesse the Donees be a Body Politick and receive under that notion or at least one of them in which case they are tenants in Common g Id. ibid. 3. Partners and joint-tenants differ two wayes the former being joyned by necessity and are called Partners meerly in respect of their inheritance Joint-tenants have their name either from purchase or Gift and are joyned together by their own Wills and not by necessity h See the former quotations 4. Thereare also some who are Joint-tenants only for life and yet have severall inheritances as where Lands are given to two men or two women and to the Heirs of their bodies in this Cafe so long as they live they are called Joint-tenants for one of them having Issue and dying his fellow shall have the whole during his life who also if he shall leave Issue and die his Heir with the Heir of him that died before shall hold the said Lands in common i Iâ—st c. 15. and if one of the Donees die without Heire his part for defect of an Heire shall after the death of his fellow revert to the Donor k Littl. l. 3. c. 3. 5. Tenants in common are they who hold the same thing as Lands or Tenements Chattells personall or reall jointly but by severall Titles l Id. ibid. c. 4. for if one parcener alienate or give his Right to a stranger the stranger and the rest are Tenants in Common though the rest amongst themselves enioy their former appellation 6. Wherefore Tenants in Common differ from partners in this that these do not possesse any thing in Common by Right of inheritance as do the others nor are they ioyned by any necessity and from Joint-tenant in that they hold a thing in Common by divers Titles or at least the Tenants are naturally so unequall that they cannot admit of any coniunction such are bodies politick among themselves or with single persons m Id. ibid. 7. First for partners these though they die before Partition transmit and leave their part to their children if they have any otherwise to the rest of their fellows n Id. ibid. c. 2. Inst c. 14. 8. Partition may be made either by mutuall consent o Dier fo 179. or if some refuse by the power of the Judge for he who desireth to have his part divided may have a Writ of Partition by which he shall compell the rest to divide p F. n. b. 61. K. 259. C. 260. B 261. C. but if one woman Partner entermarry and having Issue dieth the Husband being Tenant by the courtesie may compell them to a Partition if it be not already made q Littl. l. 3. c. 2. 9. Littleton doth very fully describe the manner of making Partition both by consent and compulsion but this is rather matter of fact then of Law that onely is observable that if Partition be made by consent one or more of the Partners being under age it may afterwards be corrected wheâ— they come to full age provided they do not confirm it when they come of age by receiving the profits r Id ib. and if it be a Fee-Tail although all be at age at the time of the Partition made yet their Heirs may disagree to 〈◊〉 s id ib. so also if an unequall Partition be made by the Husband of co-Heirs after Marrimony is dissolved either of them may disagree t Id. ib. F. n. b. 62 E. 10. If after Partition any part of either oâ— the Partners Estate lye evicted by Law He or she whose part it was may compell the rest to a new Partition and recover a lawfull part in those Lands which the rest hold u Little ib. c. 2. 11. If there be an Advowson in the inheritance and the Partners will not consent in the Presentation of a Clerk then the eldest shall present in the first vacancy and the rest according to their Case and to this they may be compelled if they refuse to agree and every one hath therr lawfull remedy if they be hindred from presenting in their turn w F. n. b. 34 T and 36 C. 12. If there be two Joint-tenants of a Fee simple withi a Burrough where Lands and Tenemenrs are divisible by Will and one of them devises his Right to a stranger and dies this Devise is void and the reason is because that part which by the Law at his death comes unto the other by the Right of â—â—crease and out of Descent cannot any way 〈◊〉 conveighed to another by a Will which â—â—es not its Operation till the Death 〈◊〉 the Testator from him that claims the â—â—ole x Littl l 3 c 3 13. Two take a Lease joyntly for years â—â—th this condition agreed to between the â—â—ssor and them that if the Lessees die beâ—â—â—e the Terme ended the Lease shall be â—â—id The Lessees make Division and one 〈◊〉 them alienateth his part and dies the 〈◊〉 Lessor cannot reassume the part of him â—â—at died but the Alience shall hold it duâ—ing the life of him that surviveth nor hath â—ccupation in this Case any force but it two â—â—ke a Lease for theit lives and make parâ—â—tion either of them dying his part immeâ—iately reverts to the Lessor y Dier fo 67. c 18 14. Two are Joint-tenants for life one of which lets out his part by Indenture to a third person for years reserving a Rent from it to him and his Heirs and dies the question is whether by his death the ritle did wholly vanish or whether the surviving Joint-tenant ought to hold the whole for his life if he ought then whether he were left to his own libertty notwitstanding the Lease of his fellow or to take onely the Rent reserved upon that moity and it was adiudged by the Justices that the surviver ought to hold the whole Lands for life and that free and disobliged from the others Lease z Id fo 178 n 5 15. And this is the difference between Joint-tenants in Fee and Partners that neither of the Donees can charge his Lands whiâ—â— he holds pro Indiviso with any Rent longâ—â— then for life but a Partner may and the râ—â—râ—â—son is it cannot preiudice his fellow or 〈◊〉 Heir who derives his Right not from hiâ— but from the Donor but Partners succeedinâ— one the other for defect of Heires may froâ— one anotherr derive their Right a Littl. ib. c. 3. 16. Which notwitstanding in letting 〈◊〉 clearly otherwise for if one of the Doneeâ— who holds pro Indiviso to him and his Heiâ—â— let out his Right for a compleat Term 〈◊〉 dies the Lessee after his death may retain 〈◊〉 during the Term nay he may enter into tâ—â— Lands although they were not delivered unto him in the Lessors life time or anâ— wayes possessed by him b Id. ib. and the reason 〈◊〉 diversity between a Rent Charge and a Lease is iudiciously given by Littleton
absence of the Owner and is either Crand or Petite according to the thing taken Grand is when the Moveable that is stollen exceeds the value of twelve pence Petite is when it is under the value c Westm l. 2. tit Indictments s. 58. Spec. Justic l. 1. c. larc Robbery is when it is taken from the person or in the presence of the Owner d West ib. s. 60. 3. Every Theft with us is a publick crime for Petite Larceny though it be not punishable with death but with imprisonment and stripes is according to some accounted Felony e Bro. Coron though others are of contrary Judgement f Stam. pl. coron l. 1. c. 15. Wherefore we shall referre this â—ather to the Order of publique Judgements 4. Yet wee have thought fit to observe here That it is in his choise who loseth any thing by Theft whether he will prosecute the party civilly or criminally For dissembling the Theft he may suppose the Theife to have found the thing by accident and so detaine it to himselfe and so recover the thing it selfe or its value g Trover in Book of Entr. Brac. l. 5. tr 5. c. 31. n. 2. Flet. l. 1. c. 38. Dyer fol. 50. n. 5. But of criminall prosecutions wee shall speake hereafter Of things taken by force TIT. II. THe word Trespasse hath a very large latitude and comprehends every violation of the Law But our discreet Lawyers call only private crimes Trespasses and make distinctions even amongst these for those who are accompanyed with force are Trespasses more properly a F. N. B. 85. G. Fle. l. 4. c. 4. Yet they call others Trespasses likewise from the species of an unlawfull act though not violent but accidentall or to use their own words suâ—… casu b F. N. B. fo 92. E. Terms v. Action sur le case whence the forme of Action in the first case hath alwayes these words vi armis and in the second contra paâ—… But the Plaintiffe may if hee please dissemble the force as where he brings his Action in the Sheriffs Court who hath no Cognisance de vi armis And though he feigne a lesser Trespasse when really it was greater yet he shall recover damages and this seems the reason why our Writers do so often confound and treat promiscuously of these trespasses which are of a different nature c N. boo Entries tresp 85. Trespas sur le case 92. Now we have thought it congruous enough to refer violent Trespasse to the title of things taken by force and the other to the two following Titles For since the Roman Law makes the subject of these Trespasses which our Law of England divides only into two heads if threefold lest it not seem strange that I refer some Cases which beside the force affixe a contumely also upon the person injured to a third Title 1. Now the Action for Goods taken by force or de vi aâ—mâ—s lies as well for things taken by force which are inanimate as Cats Ploughs c. As things animate as Oxen Sheep and those not only tame but wilde also if they be in our Custody and Jurisdiction As Conies which are in our Warren d F. N. B. 89. K. and Pigeons in our Columbaries e Id. 86 A. So also for our Servants f Id. 88. D. I. and for Apprentices g Id. 91. I. for Wives drawn away with their Husbands Goods h Id. 89. O. for the stealing away of a Sonne or a Daughter who is an Heire and marrying them with any one without our consent i Id. 90. H. for quantity as many k Id. 87. M. for goods of Felons taken out of our Liberty l Id. 91. F. for Weifs and Strays driven or carryed out of our Fees m Id. 91. B. new â—oo Entr. Trespass Bro. Tresp Fulb. Wrongs 2. And this Action is given for the repairing the losse lustained that not only against the party that did it but against those that commanded the doing of it as in every Trespasse upon the case n Dr. Stu. l. 1. c. 9. But not against the Executor of the Trespassor o Id. l. 2. c. 10. nor his Heirs p Brac. l. 3. tr 1. c. 4. n. 4. because it is personall and penall Of the Aquilian Law TIT. III. TRespasse upon the case is that which either brings damage to the person injured or disgrace and contumely with the damage and this the Civilians comprehend under the Title of the Aquilian Law be cause Cains Aquilius was the Author being Tribune of the People of this popular Law by which these trespasses were punished though they referr this to the Title of injuries 1. Now he who damnifies the Estate of condition of another commits a Trespasse upon the case As for example where a Sheriff by a Writ directed to him takes a Debtor and afterwards lets him escape a F. n. b. fo 93. A. C. or upon his return makes false Information to the Court that the party hath no Lands or any thing else in his Bailiwick whereby he may be distrained and so becomes the occasion of the taking of his Body b Id. ib B. so also he who fixeth stakes in any water whereby anothers Ship or Vessell laden with Corne or other Merchandise is overturned c Id. 92 F moreover an Atturney or Counsellor at Law who through ignorance or deceit Iooseth his Clients cause d Bo Entr. Action Sur le case in Atturney a Barber who shaves anothers Beard ill or with a foule Raisor e Id in Barber a Physition or Chirurgeon who either ignorantly or maliciously handles a sick or wounded person f Id. in Phisi a Goaler who useth a Prisoner more hardly then he ought g F. N. B. 93. he who distraines the Cattell of anothers Plough where he may make other reasonable distress h Dier fo 312. n. 86. or he who having justly taken anothers Cattell by distresse doth not carry them to an open Pound but to a place unknown the Rectory of a Church a Fortresse or into another County that they cannot be redeemed or replevin'd by their Owners i F. N. B. in the Writ of Repleg averâ— fo 68. and the Writ Vetito nannio 73. he who interverts the Course of a River which should drive a Mill k Dier 248. n. 80. and fo 320. n. 38. a Lessee or free-holder who commits waste l Id. fo 36. n. 38. and fo 256. n. 10. But this is speciall in regard that by an Act of Parliament he forfeits the thing wasted m 6 E. 1. c. 5. but in regard the Species which might be referred hither are infinite I shall rather remit you to those who are more large as treating expresly upon this subiect then trouble you with too great a glut and multitude of examples n Boo. Entr. 10. Action Sur
Stu. l. 2. c. 84. Stamf. pleas l. 2. c. 63. But in case of an Appeale hee may make use of others for his defence And if he be so poor that through want he is not able to procure Counsell the Judg ought upon his request to assigne him a Patron to plead for him k Dr. Stu. ib. 5. As for the summe in which any one supposeth himselfe to be prejudiced by reason of a Trespasse committed against him the Justices doe proportion it either by the verdict of a Jury or by vertue of their own Office l Brac. l. 3. tr 1. c. 1. For they doe after that the costs are taxed by a Jury augment them upon cause shown 6. If the Jurors being sworn upon their going together cannot agree upon their verdict so that there be any danger that they may perish through hunger because the Common Law prohibits them from eating and drinking without the Judges leave untill they are agreed together upon their verdict when any such danger appears The Judge may permit them to eate and drink and remit them againe to consult And if at length they can by no means agree he may having amerced them discharge them and appoint others in their stead m Dr. Stu. l 2. c. 52. 7. We have before mentioned and declared that that Action which was called Noxâ—lis Actio is wholly unknown to us n Tit. 8. of this Book Since therefore there is no Judge to appeal to in this case wee need not trouble ourselves with Observation concerning it 8. If in a reall Action Judgement shalâ—… passe for the Tenant the Demandant shalâ—… only be adjudged to pay costs of Suit But iâ—… it passe for the Demandant the Judge shalâ—… condemn him to pay Damages and costs oâ—… Suit and shall command the Sheriffe o Scire facias F. n. b. in the Index throughout and in the Register or in case it touch any Benefice then the Ordinary p F. N. B. 38. to put the Demandant into possession which the Sheriffe is bound to doe without delay And this is true whether the Demandant sue as Heire or otherwise and whether the Tenant were an Intruder or not For if he be a Disseisor or forceable Intruder he is worthy rather of punishment then favour but if he be not then the Jury lay little or no Damages upon him q Brac. l. 3. tr 1. c. 3. 5. 9. An Action is chiefly in case of Moveables but as concerning Moveables wee never sue for them in Specie as I said before but only propose the value And having proved the thing in Action to be Ours and the value so much wee recover either the thing it selfe or the value I doe not finde that the Defendant can be compelled by our Law to restore the thing in Action Yet in the case of Lands or an incorporeall Right the Demandant or Tenant may require the view of the thing if it be out of necessity and not to protract In which case the Judg commands the Sheriffe That at a day assiigned he cause a view to be taken by such Viewers or Surveyers as may certifie the Court at another day touching the quantity 10. That which the Romans called Judicium familiae eriscundae wee term Partition of an Inheritance But whereas they divided as wel Moveables as Immovables among Heirs we only make partition of Immoveables amongst those whom either the Common Law or the Custome of any place intitles to an equall part of an Inheritance r Lit. l. 3. c. 1 2. Now this partition is made either by the consent of the Heirs or by the Authority of the Magistrate That which is by consent may either be so made that the Estate being divided into equall parts the Eldest shall have the first choise and so the rest in their order or else by Lots s Id. ib. Terms of the Law v. Partition The forme of that which is by the authority of the Magistrate we find described at large by Bracton and Littleton t Brac. l. 2. c. 33 34. Lit. ib. In which this is lastly to be observed That whatsoever is assigned to one in one place over and above their due shall be recompenced to the other in another place u Brac. c. 33. n. 8. 11. Those who hold joyntly whether they be Joynt-tenants or Tenants in Common cannot be forced by the common Law to make Partition yet this is changed by an Act of Parliament w 31. H. 8. c. 1 32 H. 8. c. 32. wherefore at this day if Partition be made amongst these the same rules are to be observed which we mentioned in case of Co-heirs x See this title Sect. 9. 12. Where either or any of those whose Fees or Villiages border upon each other desire to make distinctions of their bounds they may have a Writ directed to the Sheriffe that hee shall determine and bound their limits equally By the assistance of a Jury of 12. men the most discreet of the Vicinage sworn for this purpose y F. n. b. fol. 134. which Partition he shall certifie under his own Seal the Seales of foure Knights who were present at the businesse at a certain day assigned And if either be unwilling to have their bounds limited as being the party who happily doth commit the Injury the other may obtain a Writ directed to the Sheriffe to require him to set equall bounds and limits z Terms of the law v. perambulation F. n. b. fol. 128. 13. Now whatsoever shall be adjudged by the Supream power or the Justices upon such certificate to each that shall immediately become theirs to whom it is adjudged a Lit. l. 3. c. 1 Of publique Judgements TIT. XVIII AS for those punishments which are inflicted upon Malefactors some extend to the losse of life some of a Member others of City Burrough or Province some to perpetuall banishment or for a time some to the restraining the body as by perpetual imprisonment or imprisonment for a time some to beating whipping or the Pillory Some also to the losse of Dignity and Order or to a privation or prohibition of any thing a Brac. l. 3. tr 1. c. 6. Flet. l. 1. c. 16. 1. Amongst these that is reckoned cheif in regard of its Heinousnesse b Coo. l. 4. Beverleys case 124. which wee call Treason Now Treason c Flet. l. 1. c. 21. is either High or Petite High Treason is that which the Romans called Laesa majestas and this before the alteration of our Government was dierse wayes committed as by killing or imagining the Death of the King the Queen or their Sonne and Heir apparant By ravishing d Spec. Just l. 1. c. del peche de majeste the Wife or eldest Daughter of the King if she were unmarried or the wife of the Kings Sonne and Heir apparant By taking up Armes against the King within his Kingdome e Dyer