THE Institutes of the Laws OF ENGLAND, Digested into the Method of the Civil or Imperial Institutions.  
USEFUL FOR ALL GENtlemen who are Studious, and desire to understand the Customs of this Nation.  
Written in Latin by JOHN COWEL, Doctor of the Civil Law, and Regius Professor in the University of Cambridge. AND TRANSLATED INTO ENGLISH, ACCORDING TO ACT OF PARLIAMENT, FOR THE BENEFIT OF ALL. By W. G. Esquire.  
London, Printed by Tho: Roycroft for Jo: Ridley, at the Castle in Fleet Street, by Ram Alley, 1651.   

THE PREFACE.  
THE Eminency of our Author is so well known to this present Age, that it were to little purpose for me to imagine, that what I am able to say, would add any thing to ●is Glory. Only this, his too much crying up Parliament Privileges, rendered him not so much a favourite of those former times as his worth merited; ●or his Books so vendible as they have ●●en since these late changes in England: And therefore though this Treatise be of the Laws of England, sin●● himself was so good a Common wealth man, I hope, for the Author's sake it wi●● find no less acceptance in ●he Englis● World, then if he had lived to maintain what he in that Age durst avow and thereby appeared in his own natural and proper colours. If in anthing I have erred in this Translation Charity can pardon me, especially when I shall affirm, that this was work of Charity in myself (as I conceived) not to let so choice a metho● of our English Laws lie obscured in a language, which I know many of this Nation who were wellwillers to the Law could not understand; and to those only it is intended. And if it happen into any other hand, especially into such as hate the profession of the Law, I do no ●●re regard their censure than they do the Laws Precepts, which our Author te●● us, are to live honestly, to do no injury to any one, and to render every one their due.  
Farewell.   

A Table of the general Heads contained in this Treatise.  
OF Justice and Law, fol. 1 Of the Law of Nature and Nations, and the law Civil, 2 Of the right of Persons, 7 Of Free-burn, 11 Of such as are made free, 12 In what causes Manumission cannot be, 14 Of the taking away the Law which was called Lex fusia caninia, 14 Of those which are in their own, and those which are under the power of others, 15 Of Paternal Jurisdiction, 16 Of Marriages, 19 Of Adoption, 27 How and by what means Paternal jurisdiction is dissolved, 28 Of Ward-ship, 30 Who they are that by Test. may appear Guardians, 31 Of lawful Guardian-ship of Kindred, 32 Of Disfranchisement, or diminutio Capitis, 34 Of the lawful Guardian-ship of Lords or Patrons, 36 Of the legal Guardianship of Parents, 40 Of fiduciary Guardianships, 40 Of the Attilian tutor-ship, which is appointed by the Lex Julia titia, 41 Of the authority of Tutors and Guardians, 43 By what means Wardships expire, 45 Of Tutors or Overseers, 46 Of the security which is to be given by Guard. 49 Of the Excuses of Guardians, 50 Of Guardians which may fall under suspicion, 50 Of the division of things, and the gaining a property in things, 53 Of things corporeal, and incorporeal, 71 Of the services which Inheritances are bound unto, 81 Of Uses and Profits, 97 Of Use, and Habitation, 100 Of Customs and Prescription, ibid. Of Gifts, 105 What persons may alienate, and what not, 114 By what person we may make acquisition or gain to ourselves, 116 Of ordaining last Wills and Testaments, 117 Of the Military Testament, 122 Who they are that may make a Will, ibid. Of the disinheriting of Children, 126 Of the instituting of Heirs, 128 Of the ordinary substitution, 130 Of Pupillary Substitution, 131 How Wills are invalidated, 132 Of those Wills which were called by the Civilians Testamenta inofficiosa, 134 Of the quality and difference of Heirs, 135 Of Devises, 136 Of taking away, or translating Devises, 147 Of that law which the Romans called Lex Falcidia, 148 Of those trusties which the Romans called Fidei Commissarij Haeredes & ad sanatusconsultum trebellianum, 152 Of things left per fidei Commissum, ibid. Of codicils, 153 Of Inheritances which are conveyed from such as die even Intestate, 154 Of the legal Succession on the Father's sidc, 157 Of the Tertullian decree, 159 Of the Orphitian Decree, 160 Of the succession of Cousins by the Mother's side, ibid. Of the degrees of Consanguinity, 161 Of the Consanguinity of those who are servile, 162 Of the succession of such as are made free, ibid. Of the assignation of such as are made free, 163 Of the possession of Goods, ibid. Of acquiring by Adrogation or Adoption, 164 Of him to whom Goods are granted for liberty, 165 Of successions which were amongst the Romans, by the sale of Goods according to the Claudian decree, Ib. Of Obligations, 166 How an Obligation is contracted by a thing done, 167 Of Obligation by words, 169 Of the two Parties in a Covenant & Promise. 171 Of the Covenants of Servants. 172 The division of Covenants, ibid. Of void and unprofitable Covenants, ibid. Of Sureties or Pledges, 177 Of Obligations by writing, 178 Of Obligations made by consent, 182 Of Bargain and Sale, 183 Of Letting and Hiring, 187 Of Partners and Fellowship, 195 Of Commandments and Attornments, 202 Of Obligat. which arise from employed Contracts, 203 By what persons an Oblige. is acquired unto us, 205 By what means an Obligation is taken off, 206 Of Obligations arising from Crimes, 209 Of things taken by force, 211 Of the Aquilian Law, 213 Of Trespasses and Injuries, 215 Of obligations which arise from imputed crimes, 217 Of Actions, 218 What is said to be a Contract made by him who is under the power of another, 227 Of those Actions which by the Civil Law lay against the Lord for an offence or Crime done by his Servants or Cattles, 229 Whether a fourfooted Beast may be said to commit a Trespass, or not, 230 Of those by whom we may sue, 231 Of giving of Pledges or Securities, 232 Of perpetual and temporal Actions which descend to Heirs, and against Heirs, 238 Of pleas and exceptions, 240 Of Replications, 243 Of Prohibitions, 244 Of the penalty of those who are rasbly litigious, 245 Of the office and duty of a Judge, 249 Of public Judgements. 254   

THE First Book of the Institutes of the Laws of ENGLAND.  

Of Justice and Law.  
TIT. I.  
JUstice is a constant and perpetual will of rendering unto every one their Due. 
a Bract. l. 1. c. 4. num. 2. Fl●t. l. 4. c. 1.   
1. The knowledge or learning of the Law, is a knowledge of things both Divine and Humane, and a Science distinguishing what is just, what unjust. 
b Bract. l. cod. num. 4.   
2. The Precepts of the Law are these, To live honestly, to do no injury to any one, and to render every one their due. 
c Id. cod. nu. 6.   
3. The Law is to be considered, either as public or private: We call that the Law public, which appertaineth to the very Constitution of a Commonwealth; and it consisteth in things holy, in Priests and Magistrates: For it is necessary for a Commonwealth to have Churches, in which men may address themselves to God, for the forgiveness of their sins: It is also convenient to have Priests or Ministers, by whom we may be enjoined repentance for our sins; and who may pray for us, and mediate to God on our behalf, for his help and providence. And it is requisite likewise, That there be Magistrates ordained, because by the means of those who are appointed to precede as Judges, the Laws may be put in execution; for it were to little purpose that there should be Laws, if there were not some to govern by those Laws. 
d Bract. l. 1. c. 5. num. 6.   
4. That which we term Private Law, is that which chiefly belongs to the utility of particular persons, and is secondarily necessary for a Commonwealth, That no one abuse his own: And so on the other side, what is necessary for a Commonwealth, is likewise secundarily requisite for the profit of particular persons: And this private Law hath three foundations, Viz. Natural, Nationall, and Civil. 
e Bract. l. 1. c. 5. num. 3. Flet. 6. c. pri.    

Of the Law of Nature and Nations, and the Law Civil.  
TIT. II.  
THE natural Law is that which nature, or rather God hath instilled into all Creatures. 
a Bract. l. 1. c. 5. num. 4.   
1. The National Law or the Law of Nations, is that which all Nations observe, and which proceeds from the natural Law. Because the natural Law is that which is common to all creatures, either on the Earth, in the Sea, or in the Air. 
b Id. l. 1. c. 5. num. 6.  From the Law of Nation comes the conjunction of male and female. 
c Blow. fol. 445.  And that which by common consent is called Matrimony. But this cannot properly be termed a Law, because it is corporated and may be seen, for Laws are incorporal, which descend and are introduced by the custom of Nations: But from this Law proceeds the Procreation, and Education of Children. 
d Id. 303. & 304.  And this Law of Nations is ●olely common to man, as Religion towards God; that we may become assisting both to ●ur Parents and Country, and repel Force ●nd Injury. And from hence it comes, that ●hatosever we do for the Defence of our own bodies is adjudged legal. 
e Bract. l. 1. c. 6. num. 7.  From the Law ●f Nations also are servitudes, 
f Id. eod.  wars, distinct and divided Nations, several distinguished Kingdoms and Dominions, Manumis●ons, setting of bounds to Land, the building together, and neighbouring of houses, by ●hich means we have our Cities, Borroughs, ●nd Villiages. And generally to this Law of Nations may be referred, all manner of contracts, and many other things. 
g Id. l. 1. c. 5. num. 6, 7, 8.   
2. The civil Law of England (usually ●●lled Common Law) is, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, and ●ath a threefold Acceptation. For first, it is ●●ken generally for that Law which the En●●●sh use, distinguished from that of the Romans, and other Nations. Secondly, It is taken for these two Courts of Judicature, commonly called the 
* Formerly Kings Bench.  Upper Bench, and the Common Pleas. For when we say, the cognisance of any cause belongs to the Common Law, we did not intent to any Court Baron, County Court, Pypowder Court, o● any such Court, but to one of these two Judicatories, who do most strictly judge all cause● according to the rule of the Common Law, 
h Doct. & Stu. l. 2. c. 5. Eract. l. 1. c. 5. num. 5.  Although there be many cases in which, both in the Chancery and Fxchequer, Process are issued upon Original. Writs, and judgement given according to common Law. 
i Blow. fol. 9  And thirdly, It is taken for that Law which we term Statute Law 
k Cook, l. 3. f●l. 86.   
3. The Law of England according to som● hath six principal foundations, viz. The La● of Reason, 
l Plo. f. 316.  the Divine Law, the general customs, of the Kingdom, certain principle and Maxims, particular Customs and Statutes. 
m Doct. & Stu. l. 1. c. 4.   
But if we shall contract these more close▪ we may say the Law of England hath tw● parts, Viz. Ancient Customs confirmed 〈◊〉 the consent of the People, and [formerly▪ the Kings Oath: And Statutes which 〈◊〉 enacted by Parliament, either as Supplements or amendments to the aforesaid Customs; both which are derived from th● Law of Nature and Nations, as all other Law ●s whatsoever, which, are either just 〈◊〉 reasonable: And thus we fitly divide 〈◊〉 Laws into written and unwritten. 
n Fortc. c. 13   
There be others which make our La● three fold. Viz. Common Law, Customs, and Statutes. 
o Cook, pref. l. 4.   
4. Our written Law, at least that which is in use, is contained in Statutes, 
p Cook, l. 3. pres.  which were not made according to the Prince's pleasure, but by the consent of the whole Realm called together [formerly] by the King, for this purpose, 
q Forts. c. 9 & 18 & Bract l. 1. c. 2. nu. 7.  yet we as [heretofore] the Kings approbation was necessarily required.  
5. And in one p●rticuler the supreme pow●● wheresoever it rest, [as, in times, past the King] is above the Laws for that it, may grant privileges at pleasure as to single persons, as to Corporations and Colleges, provided they become not injurious to a third person. 
r F. n. B. fol. 28.  In which if any doubts arise, some say itself alone hath sole power of interpreting. 
s Bract. l. 2. c. 16. num. 3. Brit. c. 63. Flet. l. 3. c. 14.  Although others ascribe this power also unto the Judges, that such Charrers may receive construction according to the rules of law. 
t Cook l. 1. Case Altonwoods.   
6. But sometimes it falls out, cases arise which are neither provided for, by customs or Statutes sufficiently. And there the Judges do decide by like reasons, proceeding accorcording to former Precedents: And for that purpose did many time's meat together to argue such cases. 
u New terms of the Law, tit. Demurrer.  But if any such disficulty, chances to happen which requires a higher search, than judgement is recited until the next Parliament, by the council of which Court it is determined. 
w Bract. l. 1. c. 2. num. 7.   
7. The unwritten Law consists of ancient customs of the Realm which are observed for Law 
x Bract. l. 1. c. 3. num. 2. Littl. l. 2. c. 10. Cook'l. 4. fo. 21  and to the observation of which our Kings at their coronations were obliged, 
y Fort. c. 34.  by Oath; notwithstanding any of these customs may be altered or nulled by a Statute. 
z Doct. Stu. l. 2. c. 5. Plow. 465.  A custom is either general or particular. A general custom is that which is observed through the whole Realm, and is more properly termed by us a common Right. 
a Bract. l. 1. c. 1. nu. 2. etc. 3. num. 5.  A particular is that which is in force in divers particular Counties, Cities, Burroughs, Villages, and Manors. 
b Cook l. 4. fol. 78. Doct. Stu. l. 1. c. 8. & 10. N. l. Entr. tit. Customs. Kitch. c. Customs, fol. 102  The public Judicatories also of England have their customs likewise, which are observed as strictly as Laws. 
c Cook. l. 2. fol. 16. & 17. l. 4. f. 23, 24. & Stu. c. f. 93.  But any custom which is repugnant either to Law or Reason is to be abolished. 
d Blow. fol. 400.   
8. Natural Laws or the Laws of nature are immutable, 
e Blow. 88 Elet. l. 1. c. 4.  But the Law of England may by the consent of those, by whose advice it was first ordained to be altered. 
f Bract. l. 1 c. 2. num. 7.  Yet so as it do neither oppugn Reason, or the Law of Nature.  
9 Now that Law concerning which we shall treat at present, belongs only to persons, things, or Actions, according to the Rights and Customs of England. And because Persons are the most worthy, as for whose sake all Laws were ordained: Therefore we discourse first of them, and of their states and 
Doct. Stu. l. 1. c. 19 Special. Justice. l. 3.  conditions, which are various and divers. 
h Bract. l 1. c. 6 Flet. l. 1. c. 1.    

Of the Rights of Persons.  
TIT. III.  
THe first and shortest division of Persons is this, That all men are either Free or Servants. 
a Bract. l. 1. c. 6. Flet. l. 1. c. 1.   
1. Now liberty is a natural faculty in every one to do what seemeth good to them, so it be neither against Law or Authority. 
b Bract. eod. nu. 2. & l. 2. c. 19 num. 4.  Or it may be defined an evacuation of servitude, because it is directly contrary unto it. 
c Fl. l. 1. c. 2.   
2. Servitude is a constitution of the Law of Nations; by which, contrary to nature, one is subjected to another's power; and it is so called from Servando, and not Serviendo, for anciently Princes used to sell their Slaves and for that cause they did reserve, rather than kill them. 
d Brit. f. 77.  Wherefore when they were afterwards set at liberty, they were called Manumissi, as being delivered out of the hand. 
e Bract. eod. num. 3. Brit. c. 31. Spe. Just. c. 2. Flet. l. 1. c. 3.   
3. Servants are either those which are borne so, or made so: Those which are borne so, come from Natives, Father and Mother, whether they be married or not (which is true both in Natives and them which are free 
f Lit. l. 2. c. 11.  whether they be in the power of their Lord, or out of his power: Also that is a Servant, whose Mother being a Native, is not married, notwithstanding that the Father be free: Because in that case, as a common conception, it follows the condition of the Mother. 
g Bract. eod. n. 4. Brit. d. c. 31. Flet. l. 1. c. 3. Spec. Just d. c. 2.  And on the contrary, The Issue of a free Woman illegitimate, though begotten by a Servant: And it is borne free because in our Law it is reputed, Nullius filius. 
h Bract. l. 1. c. 6. Instit. J●r. come. c 34.  Those which are Servants borne, we term Servants by Prescription; as those also may happily be called Free by prescription, who have gained their freedom through the negligence of their Lords. 
i Bract. l. 1. c. 10. n. 13. Fl. l. 1. c. 7. & l. 4. c. 11. Dyer, fol. 60: n: 23.   
4. Those which we call Natives are almost the same with those whom the Romans called, Adscriptim gleba: namely those which served the Land, together with their Lords: And were mancipated and aliened with their Estates. 
k Bract. l. 1. c. 6.  These we term Villains Regardants, 
l Littl. l. 2. c. 11. Brit. c. 66. fol. 165. b. Bra. l. 1. c. 11. n. 1. 2. Spec. Just. l. 2.  because they do, Villis inservire. Of whom the Ancient Writers of our Laws speak thus, A native Servant is such a one who is begotten by a Free man of a Woman, who is a Villain, and lives in a Villainage, whether they be married or not: But at this day, the Issue which is begotten by a Free man of a Native, is free. 
m F. W. fol. 78. G.   
5. And so on the contrary, if a Villain go in unto a Free woman, the Issue shall be free; but if it be begotten between the Villains of several Lords, than it is material to observe in whose Villainage it was borne, and whom it ought to follow, whether Father or Mother, according as they were either married or unmarried, or according as they were either within, or from under the power of their Lords: Also if it be the Issue of a Freeman and a single Woman a Villain the Issue shall be native, because it follows the condition of the Mother. But if of a she Villain, and a Freeman marrying out of the Villinage, and in Libero Thoro, it shall be reputed free, and see of a Freewoman and Freeman. 
n Bract. l. 1. c. 6. n. 4. Brit. c. 31. Fl. l. 1. c. 3.   
6. Those which are made Servants, are made so by captivity from the Law of nations. For when Wars began, captivity followed. A freeman may also be made a villain by Law namely by his own confession and acknowledgement made in one of the 
* Formerly the King's Courts.  superior Courts 
o Bract. l. 1. c. 6. n. 4. Brit. c. 31. & 43. Fle. l. 1. c. 3, 5. Lit. l. 2. c. 11.  A Freeman may also become a Villain according to the Ancients. 
p Bract. l. 1. c. 6.  If being once manumissed he shall happen to be called back again for his ingratitude into servitude. But this by the means is uncontradicted, 
q Fort. c. 46.  Also a freeman may be made a Villain, if at first being made either Clerk or Monk, he shall afterwards return to a Secular life, because such a one ought to be restored to his Lord 
r Brac. l. 1. c. 6. n. 4. Flet. l. 1. c. 3.  Those which are made Villains are called Villains in gross, because they are of themselves without being appendent to any Estate. 
s Lit. l. 2. c. 11  But all that are Villains in gross are not servants made. Because there may be villain Issue between those which are our Captives, or by any other of this way become Servants. Which we soon as born like the Issue of Natives fall immediately into the power of the Lord.  
7. A Freewoman is not made a Villain by marrying with a Villain, and this is in favour of Liberty against the common rule of our Law which speaks, the Wife to be the same flesh with the Husband. 
t F. B. f. 78. G  And if a Freeman marry a Villain she shall be free. 
u Id. eod.   
8. But it is reported to be an ancient custom in Cornwall, that if a Freeman took a Villain to wife to a freehold and free-bed if they have Issue two Daughters the one shall be free and the oath villain. 
w Brac. l. 4. tract. 3. c. 13. n. 2.   
9 There is a condition of servitude which is termed Substantialis. For whosoever is a Servant is so a Servant as that he is nothing else 
x Brac. l. 1. d c. 6. n. 3. Brit. c. 31. Flet. l. 1. c. 3. d.   
10. And there is lastly a certain condition like to Servants which are yet ingenious and freeborn To wit, those whom we call Apprentices who are bound by their Parents or Governors to their Masters to learn Merchandising or other mechanik trades, by Covenants. 
y An. 5. Eliz c. 4. fol. 25.  And these are in the power of their Masters during the time covenanted, and make gains, not for themselves or Parents, but for their Masters; unless it be otherwise covenanted for a Covenant prevails above Law 
z Brac. l. 2. c. 15. & l. 5. tr. 2. c. 3. n. 7. & l 5 tr. 3. c. 9 n. 12.  These oblige themselves in many things, and chiefly in these namely. That for the time covenanted they will truly and faithfully serve their Masters, conceal their secrets, willingly obey all their lawful and honest commands. That they will not commit Fornication within their Master's House or without, that they will not go away within their time, nor be absent day or night, that they will no ways damnify him nor suffer him to be damnified in what they may help but that they will with all their might endeavour to hinder his loss or else fore warn him with all possible diligence, that they will not inordinately embezzle their Master's Goods, nor lend them to others without his command or special licence, that they will not frequent Taverns unless to make bargains, and therein to serve their Masters. That they will not to the prejudice of their Masters, play at cards or dice, that they will not intermarry or contract Matrimony with any woman during the said Term, that they will not trade with their own or another's Money without leave or licence of their said Masters, but that they will well and truly behave themselves in word and deed, as a good and faithful Apprentice ought to do. 
a Ne. b. Entr. Ver. coven. in Apprent:    

Of Freeborn.  
TIT. IU.  
A Freeman is natural and freeborn, he is said to be free born who is free so soon as born, whether born of two freeborn, or of a man freeborn and a woman made free, or of a single woman and a Freeman 
a Forts. c. 42 Flet. l. 2. c. 4.  provided it be not within a villinage but in a free bed, notwithstanding it be out of the state of Matrimony. 
b Vid. sup. tit. prox. par. 4. in fine.   
1. So if of a Freewoman and a Villain out of Matrimony, and it is sufficient that the Mother be frce at any time namely either 〈◊〉 the time of conception, parturition or in the interval, notwithstanding that she become Villain afterwards because the misfortune of the Mother shall not prejudice the Infant in the Womb. 
c Brac. l. 1. c. 6. n. 5. Flet. l. 1. c. 4. Lit. l. 2. c. 11   
2. So if a Freeman having Children do in Court acknowledge himself a Villain. Those Children which he shall have after such acknowledgement shall be villains, but those which he had before shall be free. 
d Brac. ibi supra.    

Of such as are made free.  
TIT. V.  
THose are said to be made free who are manumissed from a just Servitude. And they are called free men as being set free from servitude: 
a Brac. l. 1. c. 6. n: 6 Flet. l. 1. 4.  Manumission is a giving of liberty, that is a manifesting or declaring according to soul, because liberty which is by the Law of nature cannot be wholly taken away by the Law of nations, albeit it may be under a cloud. 
b Brac. l. c. 5. n. 8. Flet. & sup.   
1. Manumission is twofold, namely, Expressed or  and employed. 
c Dyer foe 60 n. 23. and sa. 266 & 267. ●. 11.  Manumission expressed is also double. One which is by writing, as when the Lord gives a Charter or instrument of Manumission to his Villain. And another which is by fact and which was more used of old. As when the Lord in the presence of his Neighbours, laying his hand upon the head of his Villain shall say I will that this man be free, and having said this, letting him go out of his hands shall put him from him. 
d Brac. l. 1. c. 5. l. 8. Jemn. Ju. ver. manum. Erit. c. 31. ●●.   
2. Lambert in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, 
e fo. 226.  
e Flet. l. 3. c, 13. and l. 4. c. 11.  describeth the ancient forms of Manumission thus. If any one will make his villain free let him with his right hand deliver him to the Sheriff in a full County, and he ought to quit claim unto him the Bond of servitude by manumission, and show him free Gates and ways and deliver him free Arms viz. lance and sword, and then he is free.  
3. Manumission employed is when a Lord shall bind himself by obligation to pay a certain fum at a certain day to his Villain, or shall bring his action against him for any thing which he may challenge as his own, or shall grant him a yearly Rent, or make a Feoffment unto him of Land, or by Deed grant him an Estate in Land for life or years, or finally do any such action which we are not used to do but to freemen. 
f Brac. l. 4. tr. 1 c. 21. n. 3. f. 192. b. and c. 22 Brook Tit. villena spec. Just. n l. 2. des Weiss.   
If a Villain becomes a secular Priest, yet the Lord may claim him as his Servant and seize his goods. 
g Spec. Just. cod.  But if he shall enter into Religion it is otherwise, because there he is dead in the eye of the Law. 
h Lit. c. 2. c. 11.    

In what causes Manumission cannot be.  
TIT. VI  
THere are so few marks left at this day of servitude or of Villains that it were to little purpose to prescribe a form of Manumission, and therefore our Authors are silent in it. But that I may add one word for conclusion in this place. Manumission ought to be bounden within the same limits in which other lawful Acts are; So that neither an Infant nor one that is not Compos mentis, nor one that hath no right, may work any thing by it. All other things, unless any thing be done to defraud, Creditors are left at pleasure.   

Of the taking away the Law which was called, Lex Fusia Caninia.  
TIT. 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 cruel.   

Of those which are in their own, and those which are under the power of others.  
TIT. VIII.  
WE 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 own power, or in the power of others. 
a Brac. l. 1. c. 9 Fet. l. 1. c. 5.   
1. In their own power are all who are not subject to others: But we shall by consequence know those which are in their own power, when we shall declare who are under subjection to others. 
b Brac. ib. ●. 2.   
2. In the power of others are Servants; which power of Lords over their Vassals is by the Law of nature, and this was sometimes a power of life and death: But now it is more restrained by our civil Law, so that now power over life and limbs, is only annexed to the Supremacy; so that he who shall kill his Servant, shall be no less punished, then for killing a stranger, for it is very necessary for the Common wealth, that no one do abuse their own: and in this they have Law against their Lords, that they may have Justice against them for life and limb, in case of any cruelty, or intolerable injury 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 only in those Villains which hold in Ancient Demesne of the Crown; for it is otherwise of others: Because when ever the Lord shall please, he may take from his Villain 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 freeborn People also, some are in the power of others, as Wards under the protection of their Guardians or Friends, or under the tuition of their Lords. 
e Flet. l. 1. c. 9    

Of Paternal Jurisdiction.  
TIT. IX.  
UNder the power of Parents are Children borne in lawful Matrimony; so are Nephews and their Children, as to Grandfathers and Great Grandfathers on the Father's 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, only where their Fathers die, and they cannot by any means go 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 legitimate are not reputed Children, as in case of Adultery and otherwise, nor those who are brought forth contrary to the form of man kind: 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 parent's business, and that they find them diet and clothing. But if they be put forth to learn any other Arts, their Masters have the sole benefit of their work, unless any condition forbidden, for that a condition may prevail even against Law. 
g Bract. l. 2. c. 5.   
3. Whatsoever Estate wh●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 Child so soon as it shall come of age. But that I may explainit, this parental power, relisheth more of that love and respect which Children bore to Parents as a principle infused and instilled by the Law of Religion and nature rather than 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 threatened in vain.  
4. Now the Guardianship of wards is double, one by virtue of the common, the other of the Statute Law, 
i Cook ubi sup.  And it is true The Common Law gives an action of tre●●pass to the Father against him that shall take away his Son and Heir, 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 m●● and woman comprehending society of the life individual. 
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 co●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 C●●non and Statute Law concerning Legitimacy and Illegitimacy, and make, cerrifica●● thereof either to the supreme 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. etc. 19 n. 2. & a. 25. cod. 3. sta. 2. ca uni.   
7. According to the Law and custom 〈◊〉 England, that Issue which is born before marriage is a Bastard. But he which marries 〈◊〉 single woman who is with Child by himself o● any other, makes her Issue legitimate 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. etc. 14, 15.  But it is to be distinguished in the case of him that marries a Widow 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 doubtful. For in the first case it shall be ●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. Blow. f. 307.  and so in duty tied to him that if she shall be conscious of any fact committed by her husband, she shall not be punished for concealing it, 
b Glan. l. 11. c. 3. Bract l. 1. c. 6. n. 2. & l. 2 c. 15. & l. 5. tr. 5. c. 17. n. 2.  But she is obliged to hinder as much as in her lieth, 
c Flet. l. 1. c. 38.  and according to our ancient Authors, if stolen goods be found under her lock and key, she shall be esteemed equally guilty with her husband. And so also if the things stolen be found in her hands, 
d Flet. ibid.  but at this day the Law, is so much altered, as it seems, that if the Wife commit Thest by the instigation of her Husband she shall not be guilty of Felony. 
e Fitz. tit. Crown, 99 Brook, ib. 108.   
1. And in the same Bond is that woman obliged which shall marry a Villain. For if a woman who is a Coheir marry a Villain she cannot claim her Partition, before her time i. e. before the death of her Husband. 
f Brac. l. 5. tr. 5. c. 25. n. 2. Fl. l. 4. c. 12. n. 1.  In a word whensoever the Husband during Coverture shall dispose of the Lands of his Wife except only where a Fine is levied, she superviving may after his death, dissolve such Contracts as done at such a time when as she being under Coverture was so tied by the Law that she could not contradict him, 
g Plo. 265. & 32 H. S. c. 2●  nay according to some of our Ancients a Wife is so far obliged to obey her Husband, that if the Husband shall sell her Jointure against her will she shall not recover her Dower against the Vendees after his decease, 
h Glan. l. 2. c. 4.  for that she ought to rest silent, and obey her Husband patiently who disposed in that manner of her Dower as to maintain her life. But this Law is long time out of date 
i Lit. l. 1. c. 4. .  
2. Contracts of Matrimony may be entered into at the age of seven years 
k Pract. l. 1. c. 36. nu. 3. Instit. c. 24. Dyer 143. n. 56.  but they are not to intermarry until a fit age, viz. the man at fourteen and the woman at twelve years old 
l Brac. ib. Instit. ib.  and not in any degree of consanguinity or affinity, which is forbidden by the levitical Law, 
m 32 H. 8. c. 8.  and by our Law if a woman entermarry at nine years of age and survive her Husband, she shall have her Dower because at that age she is defined to be capable of it. 
n Lit. l. 1. c. 5  And this is equally a rule both for Villains and those that are free, for Villains may enter marriage lawfully 
o In this it follows the Common Law.  but they are punishable if they do without licence of their Lord. 
p Lit. l. 2. c. 11.   
3. The consent of Parents is not so essentially necessary with us that for default therein a matrimonial Contract made between them that are free being, De praesenti, should be nulled, for in this we follow the Pontifical Law, 
q Ca cum apud 23. ext. des. onsa & matrim.  and this some affirm true in the Civil Law also. 
r Cujacius in Julii Pauli receptas sententias, l. 2. c. 19 quem etiam vid. l. observat. 3: c. 5.  However Tribonianus in that long and wearisome work of his indigesling the Law hath happened to omit it, for here the words of Paulus are expressed For those who are under the power of Fathers, they ought not by Law to contract Matrimony without their consent, but being once contracted it cannot possibly be dissolved. For that the regard which is had to the public good is to be preferred to private Convenienty. 
s l. z. recept-semen. c. 19 de nuptiis.   
4. And yet Marriages are not so absolutely ●ee with us for they which hold in Fee of the King in Capite, that is in right of his Crown, ●r of any Honour or Manor of his; or of a ●ommon personally Knight's Service, if at the ●ay of the Ancestors death the party be with●● age and unmarried he cannot without penalty refuse a Wife tendered unto him by the ●ord of the Fee: For in such case he shall 〈◊〉 unto him the value of the marriage: If 〈◊〉 be that the Lord do tender unto him whilst he is within age a wife who is fit for ●im without disparity or (as our law expresseth 〈◊〉) Disparagement. 
t Brit. c. 66. 2 c H. 3. c. 7. F. B. f. 141, 174 Glan. l. 7. c. 12. Lit. l. 2. c. 4. Flet. l. 1. c. 13.  yet if the Lord shall tender one, some are of opinion that he may notwithstanding claim the value of the Heir when 〈◊〉 comes to age. 
u Dyer, f 255 260.  But here it is to be di●inguished whether the ward refuse the Wife ●ndred to him by his Guardian, and remain ●nmarried till he comes of age, or whither ●fter such refusal, he shall yet marry another 〈◊〉 in the first case he shall only be compelled 〈◊〉 pay the value of the marriage simply, but 〈◊〉 the later he shall pay it double. 
w F. B. 141. Lit. l. 2. c. 4. Stat. Merc. c. 6. West. 1. c. 12.   
5. And this is true also of womenwho are un●er the age of 14. at the death of their Ancestors and unmarried for they also are bound there to marry or pray the value to their vardian if within two years after fourteen be completed, he shall tender them a fitting husband, 
x Westm. 1. c. 12. Brit. c. 67. Brac. l. 2. c. 37. n. 6. Flet. l. 1. c. 13.  but where the Guardian makes no tender, the Law is the same as in the case of men.  
6. Now disparagement is where the Guardian shall tender to his ward a woman wanting a Foot or a hand, one that is maimed, imperfect or deformed, or that hath an infectious, or contagious disease: One that is old and pa● hope of Issue 
y Lit. l. 2. c. 4  or in case the Guardian shall tender, a Villain, Burger, or one that is meanly descended to her that is, Noble, 
z Flet. l. 1. c. 13.   
7. If there be many Lords of whom the Fee is holden, the King (if he be one) shal● have the wardship of the Heir. But if the be all common persons, he shall be preferre● to whom the Ancestors did first Homage for the marriage will not admit partiti●● But if this cannot appear, he shall be preferred who first enfeoffed the Ancestors, an● if this cannot be proved, than that Lord wh● shall gain the possession first of the ward 
a Flet. l. 1. c. 13.   
8. If the Lord of the Fee shall marry 〈◊〉 ward made within the age of fourteen year the ward so soon as he shall come to that age may descent and leave her, which is also tr●● in Females who by consent of their Guardians shall marry within the age of twelve 
b Lit. l. 2. c. 4.  and here both Sexes have the same La● that after marriage so had, under age by designation of the Guardian. They are no mor● obliged to his arbitrement the bond of Matrimony being dissolved by death. 
c Brac. l. 2. c. 37. n. 6. Lit. l. 2. c. 4.  And th●● by an inequality of marrying them, th● Guardian shall lose his ward, and shall liable to satisfy the friends of the ward so disparaged for so great a damage 
d Brit. c. 67. Lit. l. 2. c. 4. Instit. Jur. come 24.   
9 Heretofore when an Heir female was at ●ge, and held of divers Lords in Fee, it was sufficient for her in marrying to require the assent of the next capital 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 con●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 Father's 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 Widows also which are termed the King's Widows do make Oath not to enter marriage again without the King's consent. And if they do otherwise the King may by distress seize himself of those lands and renements which they have in Dower until they or their Husbands shall pay such Fines as the King at pleasure shall impose. 
i Slan. P●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 Widows 
k c. 7.  And there is this reason given, lest the King's Tenants should enter marriage with his capital enemies. 
l Fl. l. 1. c. 13   
12. Whosoever shall steal or draw away another's ward although he restore the ward afterwards unmarried or satisfy 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 satisfy for the same he shall abjure 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 Guard 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 stolen 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 singular 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. Villains 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 privileges of noble persons, for that dignity they derive from their husbands until 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 shall be demanded whether a woman more noble marrying with a man less noble or a common person may free her Chaplains for nonresidency 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 she had during widowhood. But she cannot impart the same privilege to them, which she shall have after the second marrying, because her nobility is extinct. 
t Cook, l. 4. Acton's 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 honoured with us than they which take it only from their Husbands.  
16. If any come together against the levitical 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 natural, 
w 32 H. 8. c. 38.  Those only are said to be divorced by our Lawyers, whose Marriages are nuled for that there may be a separation, 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 legitimate. 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 rendered 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 own lawful Son and Heir, which is equally true if he do not so call it expressly if he do not remove it and renounce it, nor is it material whether the Husband be ignorant or knowing of it, or whether he doubt, for it shall be reputed his lawful 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 movable Goods (which by us are termed personal Chattels) which the Wife brings with her do presently pass into the husband's Patrimony, without any distinction being thereby (as it were swallowed up, nor can any thing be reassumed by the Wife surviving but her woman's apparel; and so of imoveables and reals if allened by the Husband in his life time, but for those which are not alienated, he being dead they shall return to the Wife, 
a Plow. 418. 4●9.  but if a Wife being Executrix or Administratrix to a former Husband, marries a second and survives him, she shall have all those Goods both personal and and real which she brought unto him as possessed of by reason of that relation and office and which are not alienated by her second husband, restored unto her without diminution. 
b Vid. infra. tit. 11. par. 7.   
The other consequence of Marriage is that lawful or reasonable Dower under which notion she shall have the third part of all such Lands and Tenements which her Husband was seized of in Fee for her life 
c Flet. l. 5. c. 22. & 27. An. 3. & 6 Id. 6. in provis. Dyer 140.  but in case the husband shall happen to be attainted of treason or felony there the wife shall lose her Dower, 
d 1 Jac. ses. 1. c. 11. & 12.    

Of Adoptions.  
TIT. XI. 
a Bract. l. 2● c. 29. n. 4, 5.   
BRacton in the place before mentioned calls silence and Patience in the case of adulterate Issue, adoption which creates such Children being in our power, free and legitimate. I have also heard of that kind of Adoption amongst us which the Romans used. But this seems rather to be by private will and agreement of the persons adopting and adopted, then by any Law; for this is at our own election that we may give Lands purchased by ourselves or which we have by descent, unless they be given conditionally or (as we term it) by entail, to whomsoever we please, whether to one of our Kindred, or whether it be to a stranger without having any relation to those Children which we have, whence it is apparent, that the custom which the Romans had of Adoption was either never received amongst us or else that it is long since, as with the French, wholly extinct. 
b V Equinarium Baronem in particula posteriori suorum comment. super Instit hoc Tit.    

How and by what means Paternal Jurisdiction is dissolved.  
TIT. XII.  
WE have spoken before how paternal Jurisdiction is occasioned and constituted, now we are to declare how it is dissolved and taken away: And we must know that this is done three manner of ways. By natural death, by civil death, and by dignity or honour. For if the Father in whose power the Son is, dieth, the Son remains at his own disposing although sometime in the custody of a Lord or the care of Friends or Parents. But the Grandfather on the Father's side being dead, the grandchilds are not in their own power; but remain under the Jurisdiction of the Father, if he survive the Grandfather, and do not at all go out of his power as in the case of a Emancipation, or Dignity. 
a Bract. l. 1. c. 10. Flet. l. 1. c. 7.   
1. So by a civil death, as in case the Father be condemned for Felony committed, or exiled. But if he be banished but for a time he shall retain his Children under his power, because whatever is his he shall enjoy at his coming back, 
b Id. ibid.   
2. Paternal Jurisdiction is dissolved also by Emancipation: As if a man discharge his Son from his family with any part of his Inheritance, as it was the custom in former times, 
c Id. eod.  for this kind is a kind of a civil death of the Son, as is the entrance into Religion. 
d 4 H. 4. c. 17   
3. This power is dissolved also by dignity, as in a case the Son be made a Bishop. 
e Bract. ubi supra.   
4. But as this Bond of paternal power is not so strict with us as it was with the Romans, so neither is the releasing of it by Emancipation so usual: For I find nothing in our Laws, which hinders a son or daughter from disposing of themselves, even against their Father's consent so soon as they shall come to the age of one and twenty years. It is most certain that they may then enter Marriage or Contract with any one, and be no less obliged by a Contract then ●f they were threescore. For this age with us is perfect and full maturity. 
f Bract. l. 1. c. 10. n. 2. Lit. l. 2. c. 4.    

Of Wardships.  
TIT. XIII.  
OF those which are under the power or Jurisdiction of others, there are some which are in the custody or protection of Lords, some are under the care of Parents, and Friends, and some are not obliged by either, as those which are at full age. 
a Bract. l. 1. c. 10. num. 2.   
1. The word protection, is not so frequent with us as Custody. For as we have many Species of Law from the Normans, so have we words also▪ now they call him 〈◊〉 Guardian which the Romans termed Tutor or which was rather meant and comprehended under their appellations of Tutor and Curator together. In which we imitate them in calling them Guardians  
2. These Guardians are appointed sometimes by the Father's will, sometimes by the Law, and sometimes by the Magistrate. Fo● where the Father hath only an Estate of Money or Chattels to leave to those Children which being under age are in his power, he may commit the care and Government 〈◊〉 them together, with the Legacies to any 〈◊〉 his Friends, 
b Cook, l. 3. case Ratcl. f. 37, 38.  he also hath the like power with a Father who shall infeost an Infant i● Laws, for he may commit the Custody 〈◊〉 him according to his pleasure to whom 〈◊〉 pleaseth, 
c Flet. l. 1. c. ●  and what is here mentioned of Children born may be understood of Post humi.   

Who they are that by Testament may appear Guardians.  
TIT. XIIII.  
WHosoever hath a Free administration and power of dispensing his Goods may, constitute a Guardian by his will, provided he be of perfect age and sound memory, 
a Glan. l. 7. c. 6.  and this also may be performed by a Woman, 
b Brit. c. 35.  But if an Infant or one that is not Compos mentis be ordained, he cannot be admitted until the defect be removed. 
c Swinb. part 3. Sect. 10.   
1. A man may constitute his own Villain or Native Guardian over his Children, or another's with the permission of his Lord, but it is worthy consideration whether a Villain by this Act, shall gain his Liberty. 
d Sus. de libertinis, tit. 5.   
2. One may also constitute his Apprentice 
e Brook, Testament. 8.  whosoever may be an Executor may also be a Guardian. 
f Swinb. part 3. Sect. 10.    

Of the lawful Guardian-ship of Kindred.  
TIT. XV.  
WE have spoken already of Guardians which are appointed by Law and this is by reason of an Estate in Fee which shall descend to Infants by right of Inheritance: But if Tenant in Socage dies, the next Heir whether Son or Daughter, if an Infant shall be in the custody of the next of Kin on that side to whom the Inheritance cannot descend, for example's sake, if the Estate come by the Father's side, than the Mother, or if she be dead, the next of Kin on her side shall have the custody of the Infant. If by the Mother's side, than the next of kin on the Father's side 
a Glan. l. 7. c. 11. Lit. l. 2. c. 5. Bract. l. 2. c. 77. n. 6. 52 H. 3. c. 17. Broo. tit. Guar. & prochein. am. 11, 12, 13. Plowd. 295.  and this is the reason of the Law. Because the Infants may be in less danger in their hands, to whom their death is least advantageous. 
b Fort. c. 44. & 45.  so that none that is a Coparcener in Socage ought to be in the Guard or Custody of her Coparcener or her Husband but of some of her Parents, and if any one shall buy the Guard of the Lands or the marriage of the Daughters and shall take any of them to Wife, he is presently suspected and shall by the Law lose the Guard of the Body, and the marriage of the rest by reason of the suspicion. 
c Fle. l. 1. c. 9   
1. But if two Brother's purchase Land 〈◊〉 them, their Heirs, the elder if at age ●ay have the Guard of the younger, being 〈◊〉 Infant provided they be both legitimate. 
d Brit. c. 35. fol. 92.   
2. And these Heirs according to the ●●cients, go out of Wardship at fifteen years' 〈◊〉 age. 
e Glan. l. 7. c. 9 Bract. l. 2. c. 36. n 2. Flet. l. 1. c. 11.  But according to the modern ●●actise at fourteen, 
f Lit. l. 2. c. 5 Doct. & Stu. c. 7 fol. 141. F. B. 118.  in regard the Law ●●pposeth that at this age they are able to perform those things which belong to Husbandry. But Tenants by the custom called ●avelkinde, being sixteen years old complete, may alien their Lands by Feostment; ●●thout licence from their Guardians, 
g Dyer, foe 301. n. 41. Fitzh. Custom 11. Brook, ibid. 50.   
3. So also Tenants in Burgages, who are infant's; their Father or Ancestor being dead 〈◊〉 committed, for the same reason which ●enant in Socage are, to the Custody of ●●eir Kindred. From whence they are freed 〈◊〉 soon as they shall be able discreetly to ●unt Money, and measure Cloth, and perform other such like businesses. But in this ●●se the certain time is not defined but is adjudged by the discretion and maturity of the ●eires, 
h Bract ubi. sup. Flet. l. 1. c. 11.   
4. A Woman is supposed to be of perfect ●ge in Socage in all cases so soon as she is a●e to know how to dispose of her house, and 〈◊〉 do those things which belong to the dis●●sing and ordering her Family and is able 〈◊〉 understand what appertains to Cone and ●●ey, which cannot be before she be fourteen 〈◊〉 fifteen years old, because this age requires ●●der and judgement. 
i Bract. l. 2. c. 39 n. 2.   
5. A female Heir was according to som● ancient writers judged equal with a mal● as for years according to the diversities ●… Tenors, viz. That she should have the sam● age in Burgages and Socage, as a male, ●… wit, fifteen years. And in Chivalry likewi●… as the male, viz. 21. And that then ●… Wardship should end. But according t●… others, a Woman is said to be at full age i●… Chivalry at fifteen, for than they say, she able to order her house, and to marry a Hu●…band; who shall be able to perform Servic●… for her, 
k Bract. l. 2. c. 37. n. 3.  But our moderns define otherwise, and here they put a difference whether she be fourteen years old at the death o●… her Ancestor or not, for if she be, she d●… immediately receive the profits of her Lan●… otherwise not till she comes to sixteen. 
l Instit. Jur. come. c. 24. Lit. 2. c. 4.   
6. Guardian in Socage shall give an accounted of his Office to his ward when t●… Wardship is out. 
m Lit. l. 2. c. F. B. 118, 119 262. Flet. l. 1. c. 12.  But he may commit t●… Custody of his Ward to a stranger and h●… Grant shall be good. 
n F. B. 143. P.    

Of Disfranchisement, or Deminutio capitis.  
TIT. XVI.  
THat which the Romans called Demin●… coepitis, and divided into three kinds, 〈◊〉 so distinguished by the English. Notwithstanding that we do tacitly acknowledge it ●●uble by our Laws. That which they tear●●ed the least we wholly omit, for those which 〈◊〉 emancipated by their Fathers, do not ●●ose the Right of their former family. But 〈◊〉 they may (at least making a partition 〈◊〉 Goods and Chattels) be received as to 〈◊〉 successiion or Inheritance of an Intestate 〈◊〉 those who are adopted by others have 〈◊〉 rights of their new faculty, either ●●on the sole agreement or the expressed courtesy of those by whom they are adopted ●●thout assistance of the Law, required or ●●pected. 
a Sup. tit. Adopt. 17.   
1. Those who are, Servi paenae, namely ●●ose which have sentence for Treason or ●●lony lose all that can be lost: Not only ●●eir Freedom and Liberty but even all ●●at they have, and their lives also, 
b Stan. placit. Coro. l. 2. & Prerog. c. 44.  Nor ●●ve they other Successor than the Exchequer or the Lord of the Manor: as we shall ●●ew else where, 
c See the 4. Book, tit. of Pub. Ju.  and therefore we may ●●th reason call this the greatest Disfran●isement or Capitis diminutio.  
2. And although the ancient Law which ●●nished, 
d Brac. l. 3. tract. 2. c. 16. Brit. c. 16.  those who took Sanctuary for reason be abrogated, 
e 22 H. 8. c. 14. & 36 H. 8. c. 13. & 28 H. 8. c. 7. & 32 H. 8. c. 12. & 33 H. 8. c. 15. 1 E. 6. c. 12. & 2 E. 6. c. 2. etc. 33. & 5 E. 6. c. 10.  yet at this day ●ere are certain crimes which are punished ●●th abjuration, 
f Ch. de Forrest. c. 10. & 13 Ed. 1. c. 35. & 25 H. 8. c. 14. 35 Eliz. c. 2.  but those who undergo ●●is penalty seem to undergo the lesser dis●anchisement or that which the Romans ●●lled, Medium capitis diminutionem.  
3. That which was termed Cognationis jus, 〈◊〉 the lesser and more inferior Capitis diminutio, and seems to be wholly taken away with us, for those who abjure the Real● are wholly thrust out of protection, 
g Bract. & Brit. ut supra.  an● those who are out of the Allegiance of the supreme power of England, have nothing i● England. 
h Bract. l. 5. c. 23. n. 3.    

Of the lawful Guardianship of Lords or Patrons.  
TIT. XVII.  
OUR Laws do not decree any thi●● that I know concerning that Patron●●● Tutela, which the Roman Law mentions. 〈◊〉 we have another kind of Patronage in respect of the Fee which we possess, and these 〈◊〉 termed the Lords of the Fee. 
a Prat ●i lexicon verb. Patronus.  And the●● are very few Infants that succeed to good Estates, who escape their Wardship and Custody. For as there is none with us (except 〈◊〉 Crown) who are seized of their Estates an● Tenements in a freer or larger Title th●● Fee, so is there scarce any Fee less worth▪ But that it is bound to the Lord or a Patro● by Knight's Service; now those things whic● are proper to this Service, are Guard, Ma●●age, and Relief. 
b Lit. l. 2. c. 4   
1. An Infant Heir, who succeeds his Ancestors, 
c F. B. 262. Fletl. 1. c. 11. Dyer, 362. Gla. l. 7. c. 9 Bract. l. 2. c. 32. Brit. c. 66. Lit. l. 2. c. 4.  in Knight's Service remains under the Guard and Custody of his Lord u●till he come to perfect age. For before th●● age he is not adjudged capable of those war●ick accomplishments requisite for a Knight ●nd due to his Lord by reason of his Te●ure, notwithstanding that it falls out sometimes that age being dispensed with some are elected into the order of Knighthood before ●hey be complete one and twenty years old: But our Law supposeth these to be able to do those Offices due to the Lord of the Fee, wherefore they are out of the custody though Infants. 
d Brook, tit. Gard. 42. & 72 Fulbeck in paral. f. 29. Blow 267.   
2. And this right of custody springs from ●his reason, that since he who holds by Knight's Service is obliged according to the agreement at the first investing of the Estate ●o follow his Lord as a Knight in the King's Wars. It is presumed that no man will be more careful in training up the Infant in ●eats of Arms than the Lord himself. 
e Fort. c. 44. Polid. Virg. l. 16.   
3. But if such an Heir be female she remains in custody according to the Ancients 
f Bract. l. 2. c. 37. n. 3.  but till fifteen, and according to our moderns no longer than sixteen years of age 
g Lit. l. 2. c. 4  ●or no sooner do they come to that age, but they are immediately presumed to be able to govern their house, and to marry such a Husband that shall be capable of doing the Service due to the Lord of the Fee. 
h Bract. & Lit. ibid.  But if she be complete fourteen years old at the death of her Ancestor, neither her Body or Land shall fall under the Custody of the Lord. 
i Lit. l. 2. c. 4. Mert. c. 6. West. 1. c 22. Instit. Jur. Com. c. 24. Br. tit. Gard. 7.   
4. But if in this case it come in question, whether the Heir be an infant or not, he shall remain in custody until it be determined▪ 
k Brac. l. 2. c. 37. Brit. c. 66 fol. 167. b.   
5. If a Knight's Fee descend to an Heir 〈◊〉 the Mother's side, the Father living shal● have the Guard of his Body, and the Lord of the Land, for it is a Maxim, that no one as to his Person shall fall into the custody of the Lord, his Father living. 
l Lit. l. 2. c. 4.   
6. If Lands descend to a Wife who after Issue had by her Husband dieth. So that the Husband for default of having possession 〈◊〉 the Lands in the life of his Wife cannot be Tenant by the courtesy of England. In this case the Issue, unless it be Heir to the Father as being his eldest Son, shall be in custody. And if such Issue be a female and an Infant, at the death of her Mother, she shall remain: If her Father have a Son living, in custody notwithstanding her Father be alive. 
l F. B. fol. 143.   
7. Lord of a Knight's Fee, may transfer the guard of his Tenant to another. From whence there ariseth this distinction of Guardian i● Law, and Guardian in Tail. Guardian i● Law is the Lord himself. Guardian in Tail is he to whom the Lord hath granted the the Custody of his Heir, 
n Bract. l. 2. c. 37. n. 3. Lit. l. 2. c. 4.   
8. There is also a Guardian simply and originally so called, and a Guardian by accident, from the cause of custody, Originally is he who in right of his Fee hath the custody of his Tenant. Causarily, is he who for that he hath the custody of his own Tenant being yet an Infant hath upon that score the custody of another who is Tenant to his Ward, 
o F. B. fol. 139. d. Dyer, 123 n. 38.  For an Infant cannot be Guardi●● of an Infant. 
p Flet. l. 1. c. 11.   
●▪ When there is an Heir male or female ●ho hath many capital Lords, they cannot 〈◊〉 have the custody of the Heir, and therefore one must be preferred before the rest: ●nd that is he who first enfeoffed the Tenant 〈◊〉 Knights Service, the rest shall only be permitted, the custody of the Lands which ●●e holden of their Fee. 
q Bract. l. 2. c. 37. n. 4, etc. Stamf. Prerog. c. 2.   
10. But if any Heir hold of the King in, ●●pite by Knight's Service, whether he hath ●●her Lords or not, the King shall be preferred before the rest, to the custody of the ●eir; and that notwithstanding, Priority or posteriority of infeoffing. For that the King ●ath no equal or superior in his Realm 
r Glan. l. 7. c. 10. Bract. & Stam. ut sup.   
11. A Ward who is once freed from the custody of his Guardian [as by marrying or contracting Matrimony with his consent] ●●all not return again into the custody. And ●●at notwithstanding he be under fourteen ●ears of age, or afterwards that he shall mar●y before 21. 
s Bract. l. 2. c. 38. n. 1. Lit. l. 2. c 4.   
12. If there shall be many Daughters Co●cites who hold by Knight's Service: They ●hall be all under the custody of the capital ●ord, and none under the custody of the Mother. 
t Bract. l. 2. c. 37. n. 6.    

Of the Legal Guardianship of Parents.  
TIT. XVIII.  
THE Father is preferred before all others, to the custody of his eldest So●▪ For if an Inheritance fall to such an Infa●● who hath a Father living; notwithstanding that the Lands, if they be holden in Knight Service be in the custody of the Lord of the Fee. Yet the Body of the Heir shall remai● with his Father. 
a Lit. l. 2. c. 4 Cook, l. 3. Case Rat. foe .. 37.   
1. So also, the Mother of an Infant 〈◊〉 holds in Socage, shall have the Custody 〈◊〉 the Body and Lands of the Heir before a●● kindred, either of the Father's side or Moth●● side.   

Of Fiduciary Guardianships.  
TIT. XIX.  
THat Tutela Fiduciaria, which the Roman● imposed upon the male children, thei● Parents being dead and upon the Childre● of Patrons, our Ancestors seem wholly 〈◊〉 have neglected. Concerning the first, We● have nothing determined save that which we mentioned before of the legal Guardianship of Kindred. But as for the other, they do not transfer it upon the Children of the Patrons but upon the Executors rather 
a Lit. l. 1. c. 5  for they reckon the custody of Wards, among Chattels real, 
b N. Ter. ver. Chattels. Flet. l. 1. c. 11.  and therefore if the Patron or Lord of the Fee do not demise them by his last will, they are transmitted by the Common Law to the Executors of his last Will.   

Of the Attilian Tutorship which is appointed by the Lex Julia Titia.  
TIT. XX.  
WE have sometimes Tutores Dativi, or deputed Guardians amongst us. For in case the Mother being dead the Father dy intestate and leaves Children under age, who have no Fee to succeed unto; it often happens that the Ecclesiastical Judge commit the Guard of them, to such as shall have a care of their Persons and Patrimony, until they come to fourteen years of age. And this is often attested and confirmed by an Instrument authentically sealed: But our Law doth not compel any one to such an Office, nay rather the Judges stir up and make choice of those whom affinity and consanguinity oblige to this work of love and Charity 
a Swinb. part 3. Sect. 9   
1. And probably that Guardian may not improperly be styled Dativus, Tutor which Bracton mentioneth, 
b l. 2. c. 11. n. 1 & Brit. c. 34, 40, 62. Fle. l. 1. c. 9  when he saith that it is convenient for him that giveth Lands or Tenements to an Infant to appoint him a Guardian also, giving this reason because the Donor cannot be Guardian lest he seem to continue his own Seisin nor can an Infant consent to the Gift but by his Guardian.  
2. The supreme power may by Letters Patents constitute to an Infant an universal Guardian to answer & appear for him in all Actions begun, and to be begun, and that before any Judge or Judges whatsoever. Or the same power may authorize two or three Guardians jointly or severally to answer or prosecute any Action in his behalf. and the same letters at the instance of the Infant may give power to the same Guardians jointly and severally, to substitute other Guardians under them who may in their place and stead act for the said Infant in all causes and complaints or make defence for him. 
c F. B. fol. 27. b.   
3. Nor is it unusual in Court-Barons or other liberties for the Steward or municipal Magistrate to appoint Guardians to Infants 
d Kitch. in preceden. pa. 347.    

Of the Authority of Tutors and Guardians.  
TIT. XXI.  
AN Infant under the age of twenty one years cannot make any contract in his own name (except for those things which appertain to his necessary Food, Raiment, and Education] 
a Brook, tit. Inf. 51.  without the Authority and consent of him under whose power and custody he is 
b New book of Entries, tit .. Bro. non fuit com●os mentis. Bract. l. 5. trac. 2. c. 11. n. 1.  nor can he commence his Suit against his Guardian 
c Bract. l. 5. tract. 4. c. 4. n. 5. Brit. c. 121.  An Infant may by himself and by his own Deed better his. condition, but he cannot prejudice himself 
d Bract. l. 2. c. 5. n. 8.   
1. There is something more particular in those who hold by Knight's Service: For the capital Lords have a plenary power over their whole Estate without their persons and sometimes over their Persons also, and so that they have the full disposing of Advowsons' in case of Vacancies, and in granting, giving, or selling their Wards, And (in case of female Heirs) of marrying them or selling their Marriages, and generally of disposing all things whatsoever for the profit of the Heir. 
e Of late for their own proper profit. Brook, Gard. 2. Fitz. Account, 36.  as if they were to dispose of their own and better if possible. They may sell their custody of the Lands and the marriages of the Heirs if unmarried, but they cannot alien any thing of the Inheritance, or sell the Remainder. Notwithstanding, as for the hei● which are in custody, they are to treat then honourably, and to discharge the duties belonging to the Inheritance according to the quantity of the Inheritance, and for the ra●● according to the time of the Wardship. They may manage the affraies of their Heirs, recover their right in those things wherein the Heir as an Infant may plead, or move, or prosecute a Suit in their behalf; namely of the rights of possession of proper Seisin, or of the Seisin of an Ancestor. But in a● Action of right in case of property they can neither act nor answer for them, except of that of which the Infant was enfeoffed during his Minority. 
f Bract. l. 2. c. 37 n. 3. & Brit. c. 34. fol. 90.   
2. Guardians ought to sustain and keep in repair the Houses of their Wards, as also their Parks, Warrens, Fishings, Mills, and other Appurtenances; least by neglect they be impaired or ruined, by which, waist may be found: They are also bound to redeliver the Lands in due time free, at least as they received them and that Gratis, quitted both of relief and Fine, in case they be accorded and agreed concerning Marriage 
g Flet. l. 1. c. 12. Mag. Cham c. 4. West. 1. c. 47. 6 Ed. 1. c. 5. West. 2. c. 35.   
3. The same Authority also have Guardians in Socage, to contract, to manage Suits in Law, and to do all other things which are behooveful, either for the conservation or augmentation of the Estate of their Pupil: But these are liable to render an account when their Wards shall come to age 
h F. B. fol. 118. b.   
4, A Guardian may make Oath for his Word. 
i Flet. l. 6. c. 10.   
5. In some Cases our Law doth so highly ●avour Infants, that it will not suffer them to ●un the hazard of Judgement although with ●he consent of their Guardians but stay pro●eeding until they come of age. For in case of right or property of their possessions they can neither sue nor be sued, except for such which themselves have gained. 
k Glan. l. 7. c. 9 Bract. l. 5. tract. 5. c. 21. n. 2.  yet formerly there were bound in case of a Fine acknowledged in Court, in case of a proper injury, or Dower, or in Case of what themselves had recovered, 
l Dyer, fol. 104. & f. 137  but at this day they are not bound in case of Fine. 
m Flet. l. 1. c. 9 4 H. 7. c. 24 F. B. fol. 21.    

By what means Wardships expire.  
TIT. XXII.  
ALL Wards whatsoever not holding by Knight's Service are without more-adoe freed from their Guardians at fourteen years of age 
a Lit. l. 2. c. 4  but those Tenants if male, not till one and twenty, if female not till fourteen 
b Id. ibid.  or in some cases not till sixteen years of age, 
c V sup. tit. 15. Sect. 4.  and although a Woman being full twelve years old may contract Matrimony, as well by our Law as by the Civil 
d Bract. l. 2. c. 37. n. 7.  being then adjudged capable of a Husband: yet she doth not so soon come to maturity of Judgement but it is sooner notwithstanding out of custody than a man, because when she marrieth she doth but alter her condition entering under a new power of a Husband, instead of the custody of her Guardian. 
e Glan. l. 11. c. 7. Bract. l. 1. c. 6. n. 2.   
1. So a Wardship may expire by the natural or Civil death 
f V sus. tit. 16.  of the Guardian which is that which we termed the, Maxima or Media capitis diminutio, or in case the Guardian shall give Lands, etc. to his Ward or infeoff him. For no man can be both a Guardian and Feoffor at one and the same time. 
g Bract. l. 2. c. 5. n. 6.  But this is most remarkable in Guardians which are so by reason of Knight's Service, that they may either assign the custody of their Wards, to another; or bequeath them amongst their other Chattels by common custom to their Executors.  
2 The Lord looseth the custody of the Body of his Ward when ever he giveth him or her in Matrimony: So that if it shall happen, the Ward being under age to become single the second time he can by no means recover him into his custody. 
h Lit. l. 2. c. 4    

Of Tutors or Overseers.  
TIT. XXIII.  
MEN though full grown, and women though marriageable, were amongst the Romans to receive Tutors until they arrived at twenty five years of age. Notwithstanding, that they are not so with us beyond the age of one and twenty, and that in case where they had not any before either in regard of their Tenure or necessity of the Law. However we include Tutors and Overseers under the name of Guardians, although it is apparent, those to be more proper in relation to the person, these to the Estate. 
a V tit. 14. Sect. 4. in Inst. & A de rit● nuptiarum l. sciendum 20.   
1. To some also, the Law appoint Tutors and Overseers, for by the Statute the King hath the custody of the Lands of natural Idiots, receiving the profis without waste and destruction, and finding them necessaries▪ without any regard had of whom the Lands are holden which after the death of the Idiots are to be restored to the right Heirs, so that they cannot by any means be aliened by the Idiots or the Heirs disinherited 
b 17 Ed. 2. Brit. 167. Stan. Prerog. c. 9 Bract. l. 5. trac. 5 c. 20. n. 1. Dyer, 102. Co●. l. 4. 126.  Fleta affirms 
c l. 1. c. 11.  that anciently Idiots were under the custody of their own Lords, But that for the many Exheredations that happened: Their Guardianshipp was conferred by Parliament upon the King, yet with this Proviso, that the Lords of the Fee and those whom it concerned should lose nothing which was their due. Either for Services, Rents Releifs, of their right of Guardianship, till they come to full age according to the condition of their Fee.  
2. So also where it happens that any one who formerly had both memory and understanding becomes, Non compos mentis, as some are who have, Lucida intervalla. The King shall take care, that the Lands and Tenements of such shall be kept without waste or destruction: And that he and his Family shall live competently and be maintained out of the profits of the same: And that the Remainder of their profits shall be reserved for their use. So that the said Lands and Tenements shall not be by any means alienated within the said time, nor the Revenues appropriated to the King's use, and that if he shall happen to die in such a condition, that then that said remainder of the said profits to be disposed of by the Ordinary, for the good of his Soul. 
d 17 E. 2. c. 10. Bract. l. 5. tr. 5. c. 9 n. 7. Dyer, fol. 25. n. 164. Cook, l. 4. 127.   
3. Those who are naturally deaf and dumb or labour under any perpetual disease according to the opinion of some are necessarily to have Guardians. 
e Bract. l. 5. tr. 3. c. 6 n. 6. & tr. 5. c. 18. n. 1. etc. 10. n. 1.   
4. Infants are not forced to receive Guardians against their will except by reason of their Fee, or any of the causes before mentioned, or in case of Suits in Law. And in the latter case oftentimes there is not only the next of Kin assigned to assist the Infant in acting but a Guardian likewise to afford him help for his defence 
f West. 1. c. 47. West. 2. c. 15. F. B. f. 27.   
5. Notwithstanding which, no man as Guardian to an Infant shall prosecute for him or receive an Action without warrant, but another may as his Kinsman commence an action for him without express warrant, 
g Id. ibid.  nor can an Infant disclaim that Guardian who prosecutes an action for him as being next of Kin. 
h Id. ibid.   
6. An Idiot born is not received to prosecute or defend in any action by his Guardian or next of kin, but is required always to be present in his proper person. 
i F. N. B. fol. 27. g.    

Of the Security which is to be given by Guardians.  
TIT. XXIV.  
HE that is constituted sole Tutor or Guardian by the Magistrate or Ordinary ●s bound by our Law to put in security. But ●efore he is admitted to his Office he makes ●ath to administer all the affairs of his ●ard to his profit and benefit, to give a true ●nd faithful Inventory of all his Goods, ●nd to exhibit it by a certain time, according as the Judge shall appoint, as also to ●ender an exact and true account of his Office when it shall be required from him. ●esides all which he is to find fit and able sureties jointly with himself, and severally ●y themselves to become bound for his true ●nd faithful administration of his Guardianship.   

Of the excuses of Guardians.  
'tis XXV.  
OUR Laws speak nothing of the excuses of Guardians because no one is pu●… upon this Office against his Will.   

Of Guardians which may fall under Suspicion.  
TIT. XXVI.  
OUR Laws are very careful in p●… of trusting Guardians. For he that give Estates to divers, whereof some are of ag● and some Infants, may lawfully appo●… those which are of age to be Guardians o● the Infants; but this will not stand in c●… there be any cause of suspicion, that they w●… contrive the death of the Infants, but susp●…tion is not admitted, if the gift be made t●… Father or Mother or their lawful Issue, b●… it is otherwise where it is to Brother or Uncle or Nephew; because of the right descending. 
a Bract. l. 2. c. 11.   
1. They who are Guardians by right o●… their Fee, so long as they have the custod●… of the Land are bound to maintain and repair all Houses, Parks, Warrens, Fishpools, Mills, and all things whatsoever appertaining to the said Land, out of the pro●●ts of the said Land: And to ●ender to the Heir when he shall come to age, his said ●and free from all Services of the Plough ●t lest as free as he found it. Nor shall he ●ake any thing of the Land of the Heir as he ●eing under age, more than the ordinary customs and reasonable Services. And th●s without destruction or waste either of men or goods; which if he shall do, whether there ●o any prohibition precede or not, he shall ●oose his ward and pay Damages. And deli●er up the Land for his default, to some discreet and lawful men of his Fee or to the ●ext of Kynn. 
b Bract. l. 2. c. 37. n. 3. & l. 4. tr. 6. c. 19 n. 2. Mag. Char. c. 4. & 5.   
2. And it is true regularly, that no one ●●all remain in the custody of him who may ●e suspected that he will lay claim to the inheritance. Whence it follows that if there ●e many Daughters and Heirs in Socage ●one of them shall be wards to the rest, but ●hey shall remain in the custody of their next of Kin who are allied to them in that line ●o which the Inheritance cannot descend, ●ut if they hold by Knight's Service, they shall be all under the custody of another Capital Lord [and not one alone under the Guard of another Lord by reason of the said suspicion] until they come to perfect age. 
c Bract. l. 2. c. 37. n. 6. & l. 2. c. 5. n. 8.   
3. A Ward may prosecute an Action of waste against his Guardian, and may constitute his Attorney in the Action. 
d F. N. B. f. 27. H.    
The end of the first Book.   

THE Second Book of the Institutes of the Laws of ENGLAND.  

Of the division of things and the gaining a Property in things.  
TIT. I.  
WE have spoke before of the Persons and conditions of men and persons in Law. We are therefore now by consequence to treat of things by dividing and distinguishing, that they may the better be understood, 
a Bract. l. 1. c. 12. in the begin.   
1. Now the first division of things, is this, that some are in Patrimony and Inheritance, and some not. Those which are of, or belonging to our Patrimony, and both moveables and immovables, which we have liberty to make use of according to our wills 〈◊〉 necessities. Rights and Services are not properly to be reckoned amongst Goods, but i● regard they are not extreneous, they may the rather be accounted such. 
b Bract. ib. n. 2. Flet. l. 3. c. 1.   
2. Those which are not appertaining 〈◊〉 our Patrimony are things sacred, religio●● and common. 
c Bract. ib. n. 5.   
3. By natural right these things are to be esteemed as common. Running water, the Air and Sea, and the Sea shores as accessary. For no one is prohibited coming to the Sea shores, whilst he abstaines from Buildings and Villages, because by the Law o● Nations the shores are as common as the Sea: And therefore, those Buildings which shall be erected either in the Sea or shore, are the Builders by the Law of Nations? and in this case the soil follows the propriety o● the building, although in others it be contrary the building giving place and following the propriety of the Soil 
d Bract. d. l. 2. c. 12. n. 5.   
4. Things which are to be esteemed public are Rivers and Ports. And therefore the right of fishing used to be free to all, as also the use of the banks are public as the Rivers themselves by the Law of Nations. Wherefore it is as free to every one to join Ships and fasten them unto them, to tie their cables or ropes to the Trees growing on them, to lay any burden upon them as it is to sail or row in the Rivers themselves, but the property of them is theirs to whose Fee they adione. And for that reason the ●rees which grow thereon are theirs likewise. And this is to be understood of those ●ivers which have a perpetual and continual course, because those which are but temporary may be private, 
e Bract. l. 2. c. 12. n. 6.  but these which ●ere formerly the People's. And by our Law transferred upon the supreme Power, as representing the person of all the People and consequently of the Commonwealth itself 
f Pl●w. Cas. Reinyer & Fogassa.  ●herefore at this day whosoever disburdens 〈◊〉 unlades his Ship upon the banks of pub●●ck Rivers must pay custom, Hoc nomine, to ●●e supreme power or its deputed Officers 
g 3 H. 7. f. 14  nor can any man fish in public Rivers without licence from the supreme power first ●btained. 
h F. B. f, 88 h.   
5 Where note the difference between public and common. Public are taken for ●or those things which are the People's generally, viz. Which are for the use of man ●nly. But those are common which are for ●he use of all creatures. 
i Bract. ib. ●● 6. Brit. c. 33. Flet. l. 3. c. 1.   
6. Those things are said universal and ●elong to the generality (not to particular Persons) which are in Cities, Theatres, Ra●es, and the like, which are common in Cities and are for the use and in the power of the Generality. But of things which belong and appertain to the generality, some are termed Venalia, not from the use but the power, under which they are and profit, as the lands and Servants of Cities so that they cannot be called any one's particularly. 
k Bract. ib. Brit ib. Flet. ib.   
Some things there are which may many ways be said not to be the goods of any one, as first by the Law of nature. Wild Beast, Birds, Fishes, and Men. Next by Judgement▪ as things Sacred, religious and holy. The●● by accident as an Inheritance lying before it be entered upon or appropriated, and 〈◊〉 Wreck. By will, as any thing that is left and forsaken, and by process of time as Treasure, 
l Bract. ib. n. 10. & l. 3. tr. 2 c. 3. n. 4, 5, 6. D & Stu. f. 157. Brit. c. 33. Flet. l. 1. c. 43, 44, & 47. & l. 3. c. 1.  but by our Law, Wrecks, things that are left and forsaken, and Treasure, belong to the public Exchequer. 
m Kitch. f. 12 f. 30. f. 40. Stat de Prerog. Reg. c. 11.   
8. Things sacred are those which are duly set apart by the Clergy, for God's Service. As Churches and Gifts duly dedicated for holy uses; as Chaliees, etc. Which are forbidden to be alienated, except for the redemption of Captives; also Church yards and Chappells, and although structures happen to be dimolished, notwithstanding, the ground remains sacred still. Now Sacru● differs from Sacrarium, Sacrarium signifying only a place where holy things are laid, 
n Bract. ib. n. 9 & l. 2. c. 27. n. 2. etc. 5. n. 7. Brit. c. 33.  and besides all these, the King's High way in some sense is termed sacred, 
o Bract. l. 4. tr. 1. c. 16. n. 9 etc. 28. etc. 38. & tr. 3. c. 9 & l. 5. tr. 5. c. 10. Fl. l. 3. c. 1.   
9 Christian Religion makes religious things almost the same with sacred, yet there are amongst us many noble families who have by the leave of the Ordinary and Parishioners, built Chappells near the Church, and have therein a right of burial for them-selves, so that none else might be interred in them.  
10. Those things which are called Sancta, are such as are s●nced and guarded from the injury of men, as that law is particularly called Sanctio which lays a Panalty upon those who commit injuries. And of this sort are walls and gates of Cities, which we suppose so called, because if we may credit our ancient writers their way, a capital punishment ordained for those who should injure them, either by violating or altering them, or climbing or Scaling them, or by any other way. In regard it seems an Act of hostility and not sufferable, to enter any other way then by the gates, 
p Bra. ib. n. 9  but this punishment seems of late arbitrary, unless in time of Warr.  
11. Now those things which every particular man possesseth are held and had, either by the Law of Nature, the Law of Nations, or the Law Civil, we shall therefore first treat of the most ancient which had their first rise, even with Mankind itself. After which we shall descend to the Law Civil which was introduced afterwards; namely, when Cities were built, Magistrates created, and Laws began to be prescribed. 
q Bract. l. 2. c. 1. n. 2. Brit c. 33.   
12. Now dominion or propriety in things by the Laws of Nature and Nations was first created by the occupation and possession of those things which did not properly belong to any particular Person. Occupation includes, Fishing, Hunting, Fowling, Enclosing, Seizing, 
r Bract. ib. n. 2, 3. Brit. c. 33 Flet. l. 3. c. 2. Blow. fol. 28.  the Law of Nations puts the property of things thus gotten into the person who hath possession, but ours doth not. For there are many things which are the Kings by his Prerogative, 
s Bra. ib. n. 2.  and there are many Statutes which put limitations both to Fishing, 
t 4 H. 7. 15. Eliz. 17. 25 H 8. 7. 13 E. 1. c. 47. 13 Eliz. c. 18. 31 H. 8. 1, 2. 3 E. 3. c. 1. 13 R. 2. Stat. 1. c. 19 1 Eliz. c. 17.  Fowling, 
u 5 Eliz. c. 21. 13 H. 8. c. 18. & 31 c. 2 37 D. 3. c. 13. 24 H. 8. c. 10. & 25. c. 11. & 31. c. 12. & 32. c. 8, 11. 3 & 4 E. 6. c. 7. 5 El. c. 21. & 23. c. 10. Dyer, fol. 306. & 326.  and Hunting 
w 5 Eliz. c. 21. 13 H. 8. c. 18. & 31 c. 2 37 D. 3. c. 13. 24 H. 8. c. 10. & 25. c. 11. & 31. c. 12. & 32. c. 8, 11. 3 & 4 E. 6. c. 7. 5 El. c. 21. & 23. c. 10. Dyer, fol. 306. & 326.  by which that ancient liberty which the Law of Nations entitles us unto, becomes bounded, custom also of places doth often in these altar common right.  
13. The mere pursuing and hunting of any thing doth not make it mine; for although I should so wound any beast that it may be taken, yet is it not mine until I shall have taken it, nay, it shall rather be his that can get possession of it in regard many things may intervene and happen which may hinder my taking of it. So if a Dear shall fall into the Ginn or Snare which I shall set up, for to catch any thing, and I chance to take him and hunt him by pursuing, he shall be mine if he come into my power, unless there be any custom or Privilege to the contrary. 
x 23 Eliz. c. 10. 13 E. 2. Stat. 1. c. 13. 2 & 3 E. 6. c. 14. & 17. Dyer, f. 238.   
14. So bees are by nature wild for if they shall settle upon my Tree they are no more mine before I have hived them. Then the Birds which shall build their nests there, and therefore if another shall hive them, they shall be accounted his, yet the Chickens or young ones of such Birds as build in my Trees are mine by right until they can fly away 
y F. B. f. 86, 87, 89. Doct. & Stu. l. 1. c. 5.  so that if any one else shall take them away, he is liable to pay me Damages. 
z 14 H. 8. f. 1. F. B f. 86.  If a swarm of Bees forsake my hive, they are said to be mine so long as they continue in my sight and that the pursuing of them becomes not impossible, otherwise they are his that takes them. But yet whosoever shall take them doth not make them his, if he know whose they are, but commits Theft unless he intent restitution. And these are true unless where the particular custom of any place makes an alteration. 
a Bract. l. 2. c. 12. n. 3. Brit. c. 33. Flet. l. 3. c. 2. Sect. 2.   
15. That which hath been spoken is to be understood of those Creatures which remain continually wild, but if any shall happen to be made tame, and by custom go familiarly in and out, fly abroad and return as Dear, Swans, Peacocks, Pigeons and the like. There is another▪ rule to be observed for that they are to be understood, ours so long as they have any Inclination of returning. For when ever they cease to have any desire to return, they cease to be ours, and the inclination of returning is then said to cease when the custom doth; and the same is to be understood of Hens and Geese when having been tame they become wild. 
b Bract. ib. Brit. ib.   
16. But in the case of Hens and Geese which are bred in a House, the third rule holds good, namely, that although they fly away out of my fight, yet in what place soever they are, they are to be understood mine, and he commits Theft who detains them with an intention to gain. 
c Bract. ib.   
17. And this Species of possession takes place also amongst those who are made Captives, that if free men be brought into our Servitude and escape, they receive their pristine condition 
d Bract. ib.   
18. So hath it in those things that are common as in the Sea and its shore. In stones and Gems, and other things found on the shore. 
e Bract. ib. Brit. d. c. 33. Flet. l. 3. c. 2.   
19 The second manner of gaining, whic● is by Jus gentium, and is a discreet or distinct increase, or secretly a Contrete or continued. And therefore whatsoever is born 〈◊〉 comes from any sort of animals under 〈◊〉 Subjection or power are absolutely gained unto us. 
f Bract. ib. Brit. ib. Flet. ib.   
20. So Whatever a River throws up 〈◊〉 adds unto our Land by overflowing is ours, by Jus gentium, now this kind of increase 〈◊〉 unknown, for that it is said to be added by overflowing, which is so insensibly added, that the time or times are insensible. 
g Bract. ib. Brit. ib. Flet. ib. Dyer, fol. 326.   
21 But if this increase be not inperceptible, but apparent, than it is otherwise: As in case the force and violence of a River should sever any part of your Inheriance, and join it to your Neighbours, yet undoubtedly it remains yours still: but if it shall remai● long so joined, and the Trees which accompanied it, take root in your Neighbour's fee, from that time they seemed to be perfectly added and gained to his Inheritance, yet according to some, there is a profitable claim given to the former owner: But this claim ceaseth because the very Superficies, is become another's, and a Tree which is fed and nourished by another man's ground shall be esteemed his. 
h Bract. ib. Brit ib. Flet. ib.   
22 And this kind of accession is in case of an Island made by a River which if it be just in the middle of the River, it shall be in common to those who, pro indiviso, have the Inheritance near the bank on each side the River, according to the latitude of each ●ee towards the Bank. But if it be nigher to ●ne side then the other, than it is theirs only which have the Inheritance on that side near ●he Bank. 
i Bract. ib. Brit. ib. Flet. ib.   
23. But if an Island be made in the Sea, 〈◊〉 which seldom happens) the propriety is in ●he Occupier, not that another man's ground ●nd property reduced into an Island, is to be ●nderstood an Island; as if a River being divided at the upper end, incompaseth another's Ground, and is again united; in this ●ase the property remains in him in whom it ●as. But this is to be taken in grounds not limited, for in those that are limited, over●●owings signify nothing: Now those are limited to which terms and bounds are ascribed. Where it is distinguishable what is gi●en, what retained and left. Moreover an ●sland is not to be appropriated to limited ●ossessions in the case of Vicinity, where the River is public: But the property is rather ●n the Occupier, and consequently in the King by Prerogative. 
k Bract. ib. Flet. ib.   
24. And this kind of accession is to be understood in case where the Channel of a River is left by the River, the property of which shall be in them whose possessions are next to the River bank, according to the latitude and extent of their possessions near the bank; the property of the new Channel remaining with that of the River, namely in the public, now in case where a River shall take away part of my Fee by his new Channel, and shall return again to its old; I cannot strictly by Law challenge any thing to my own Fee in regard the property is i● them whose possessions are next the bank: Though in Equity I may. 
l Bract. ib. Crom●. Juris. fol. 109.   
25. But in case a River shall not make any new Channel in my Grounds but only overflow them, there the Species as to the property is not altered, and thus much for accession which is merely providential.  
26. There is also another kind of Accession which is natural which by joining one Species with another either of the same or divers kinds, either by sodering or cementing, in which case the Minor shall give place to the Major or more worthy or precious; but if neither be more precious, than every one may claim his own. 
m Bract. ib. Flet. ib.   
27. The right of Accession takes place likewise in houses built, as if I build another's material upon my Soil, I shall be esteemed owner of the House because the property of what is built follows the Soil, 
n Fulb. tit. Devises f. 39 Flet. ib.  nor yet doth he that was owner of the matter cease to be owner still, nor yet can he take 〈◊〉 away, but he may recover double damages. And if the house shall fall he may challenge what was his, if he have not recovered double; but on the other side, if any one out of an evil intention build with his own materials upon my ground, he is presumed to give me his material, but if it be not through any evil intent, as supposing the ground to be his, I, who am owner of the soil shall pay unto him the price of his materially and his Workmen's wages, now this which hath been said, it to be understood where ●hat building is , for if it be movable it is otherwise. As for example, a new Barn of timber built or placed upon the Inheritance or Fee of John an Oaks shall not be understood to be the Barn of John an Oaks. 
o Bract. ib. n. 4. Brit. c. 33. f. 86. Perk tit. Dower 328.   
And this very Species of Accession which is by the Labour and Industry of man may be assigned even to Letters for letters though writ in gold follow the property of the Skins or papers in which they are written, as buildings do the property of the Soil on which they are built, 
p Bract. ib. n. 5. Plow. 223.  but it is otherwise in case of Pictures. For it were ridiculous that a precious Picture should by accession entitle him to the property who was only owner of a vile and inconsiderable Table whereon it was drawn, 
q Bract. ib.  and therefore the Table shall follow the Picture.  
29. So also in Textures for if any one shall interweave or imbrayder his Purple in my garment although his Purple be much more precious than my garment, yet by the right of accession it shall follow the property of the Vestment. 
r Bract. ib.   
30. Likewise, the same Species of Accession in fructuaries and in those things whereof we have the use but not the property concerning the revenues of income of the inrease, 
s Bract. ib. Flet. l. 3. c. 1.   
31. But there is another Species of accession which is providentially natural and is made by the cooperation of divine and humane nature from whence a property is acquired, as for example, A. sows another's man's plant in his own Soil the property of the Plant shall be in A. and on the contrary A. sows his own Plant in the Inheritance of B. B. shall have the plant, provided in both cases that they take root, according to the verse.  
Quicquid plantatur seritur vell inaedificatur.  
Omne solo cedit, radices si tamen egit.  
Whatever we do plant or build or sow,  
Follows the Soil, if they with roots do grow.  
But before they have roots they are his who first had the property, and this is so undeniably true that if A. have a Tree which doth so much overcharge the Soil of B. that it takes rooting in it, the property shall be in B. for reason will not permit that it should be in any other then in him in whose ground the roots grow, so if a Tree be set in the bounds of Lands, and the roots reach into another's soil, the tree shall be common nor shall it be permitted the Neighbour to cut up the roots, and this is to be understood in case where my tree puts forth its roots so far into my Neighbours Soil, that without it, it cannot live or grow; for where it hath sufficient to maintain it without those roots, it shall not be in Common. 
t Bract. ib. n. 6. Flet l. 3. c. 2.   
32. And by the same reason that Plants having taken root, and  buildings follow the property of the Soil, by the same reason doth any kind of grain when it shall be sown and take nourishment and grow in the ground, nor is it material whether it came there by accident or not. 
u Bract. ib. Brit. c. 33.   
33. There is also an accession by specification or changing the Species, as if a man create a new Species out of a substance which was another's, the property shall be in him, that made the Species.  
34. And in like manner by confounding, as in ●icquids, by confounding wine with honey. So may there be confounding also of Solids, although it be wrought with very much difficulty, viz. The Species, as Gold, Silver, Led, Iron, the product of which shall be common whether they will be separated or not) amongst those by whose desire the bodies or Species were intermixed, so also in case of an intermixture purely accidental, which will not admit of Separation, but if it be possible to separate the substances, than each shall have his peculiar part in weight and measure according to that which he had in the original and rude matter. 
w Bract. d. c 3. n. c. Flet. l. 3 c. 2.   
35. But if one man's corn be mixed with another's, the Corn shall not all be common, but each one shall claim his share from the heap, according to his quantity or measure of Corn, nor can there be any community in Corn; because single bodis remain in their own proper substances, as in case A. his Herd intermixeth with mine, it cannot be conceived that the Herd should become common, and although it be very difficult, & in a manner impossible to separate one man's corn from another's, 〈◊〉 there may be sufficient argument to give● 〈◊〉 tle to the claim of an individual part, 〈◊〉 the whole heap of Corn were in comm●● Namely, that he may claim so much of 〈◊〉 heap as was his, now there is a difference between confounding and mixing, and that 〈◊〉 three particulars. For Species are said to 〈◊〉 mixed, and matters and substances, to be ●●●founded. Also Species mixed remain in 〈◊〉 same substance and Species, but confounde● they are transferred into another 〈◊〉 
x Bract. ib. Flet. ib.   
36. If a man buy an Inheritance, 〈…〉 of another whom he believes to be them owner of it, when indeed he is not, or sha●● Bona fide receive it of gift or upon any ●●ther just consideration. Natural Reason ●●leth that the profits which he hath receive shall be his for his tillage and care, 
y Fulb. Bargains, f. 13. b. & 14 Eli. 311. Dyer.  〈◊〉 this is not permitted to a wilful 〈◊〉 of another man's Inheritance. 
z Cook, l. 1. 98. Perk. 529. Stat. Glocest. c. 1. An. 6. Ed. 1.   
37. Now it is much questioned wheth●● Tenant for life [which is almost all one 〈◊〉 the Roman Fructuarij] hath any right 〈◊〉 to profits and fruits unreceived. And 〈◊〉 Books distinguish between fruits growing merely by the operation of the divine na●● for as to those they conclude that Tenant 〈◊〉 life may dispose them, either by his 〈◊〉 Will and Testament, or otherwise. 
a Perk. f. 513 514, 515, 518, 519, 520.   
38. There is a propriety gained by ●●●ding, as in case of Treasure found, 
b Bract. ib. & l. 3. tr. 2. c. 2. n. 3. Plow. 315. & 323.  no● by Treasure we mean an ancient hoarding of Money or other Me●●all, whose memor● is so much worn out, that it hath not now a●y owner; and so by the Law of nature, it is ●is who found it, to exclude others, 
c Flet. l. 1. c. 43.  otherwise if any man for gain, fear, or to keep it, ●ids and burieth any thing under ground; this ●●all not be said a Treasure, and of this there ●●ay be Theft committed. Treasure is supposed the gift of fortune; and no one ought by ●he labour of his Servants to seek after it, ●or for it to dig up the earth, and seeing Trea●ure is no particular man's goods, and was anciently the finders by the Law of nature, now ●y the Law of our Nation, it is become the Kings, 
d Bract. l. 3. tr. 2. c. 3. n. 4.  and this is true for things found ●n the earth, but it is otherwise for things found in the Sea, 
e Brit. c. 17.  as for other things which are found above ground, they remain ●he owners still, if he make claim within a year and a day, nor is the property in the finder ●ntill he hath made publication of the things found, in the Markets, and Churches, next adjoining, 
f Brit. ib. Dr. & Stu. l. 2. c. 38. Dyer 121. n. 14.  yet at this day if they be things ●nanimate, they escheat to the Lord of the Manor for ever, nor can any prescription of time entitle the finder unto them, 
g Brook, Act. sur le Case, 109, 113.  and the reason of difference is this: That animal things cannot be kept and maintained without charge, which is otherwise in inanimate.  
39 Those things which accrue unto us by Tradition or Livery, are ours by the Law of Nations: Nothing being more consonant to natural Equity, then to have the will of the Donor confirmed when it transfers any thing upon another. Now Tradition is a free transferring of a corporeal thing, either of ones own or another's, from person to person, with ones own hand or another's as administratory [provided it be with the will of the owner] into the hands of another. And Tradition is nothing else in another sense, but the Induction of a corporeal thing into possession, 
h Bract. l. 2. c. 18. n. 2. Brit. c. 40. Flet. l. 3. c. 2.  nor is it material whether the Owner himself deliver the thing given or sold with his own hand, or another by his appointment as his Attorney, if himself shall not be present, or a Messenger with Letters Patents of Attorney, intimating and containing the will of the Donor or Selle●▪ 
i Bract. l. 2. c. 18.   
40. Now the bare will of the Owner 〈◊〉 the case of Livery is sufficient for the transferring of any thing to another, as changing the cause of possession, Provided it be wit● Solemnity, and that there doth not wa●● Witness, as in case a man lets a thing to another, or grants it for term of life or years and shall either sell or give the same unto him afterwards, although he had it not at first upon this Score, yet since the Owner himself suffers him to enjoy it upon this or another account, it becomes his. In the same manner, if any one be in possession of another's right, without a just precedent cause, namely by Intrusion or disseisin, and the owner wils that the Intruder or Disseisor shal● have it, it shall be his although the owner were not possessed of it at all, it being supposed that possession and property in the thing came unto him by the owners Will, as from him and by his own hands 
k Bract. l. 2. c. 18. n. 2. Lit. l. 3. c. Releases. Flet. l. 4. c. 20.   
41. Things sold and delivered are no otherwise, the Buyers then as paying the seller for them, or otherwise satisfying him as by pledge or earnest, 
l Bract. l. 2. c. 27 n. 1. Flet. l. 2. c. 51. Dyer, f. 76. n. 30.  unless the seller lets him have it upon his Credit. 
m Dyer, f. 30 n. 203. Blow. f. 432. & f. 5. & 9   
42. Where Livery is to be given to any one either by the owner himself or his Attorney, of any house by itself, or of any Message, by reason of a Fee, to that intent that the Donee should have the possession until a certain Term with all the rights and Appurtenances: It is not needful in this case to go round all the Land, or set ones foot in every part or parcel of it, but it sufficeth if Livery be given by a Door or by the hasp or Ring of a door; For by this means he shall be in possession of the whole by the intention and view, and by the consequences of possession, but if there be no house he may have seisin [as it is commonly called] by a staff or twig, and the mere setting of the foot upon the Soil with a desire of possessing and an intention of the Donor is sufficient, notwithstanding that it doth not immediately inure to take its effects, 
n Bract. l. 2. c. 18. n. 2.  but without Livery of Seisin a  passeth not, either by Feoffment, Gift, or Lease. 
o Brit. c. 33. Bract. l. 2. c. 19 Doct. & Stu. c. 7. f. 14. Lit. c. Attornment. Perk. from f. 206. to f. 216.   
43. Those which the Romans called Missilia, or the Liberalities which Emperors and Princes scattered among the People, are not so frequent with us as they were with them, yet we have some mentions of them which carry the same Right with them, as when the Conduits of London at the Coronations of Kings or other such like solemnities 〈◊〉 with Wine, every one hath a property in the Wine he there takes. 
p Bract. l. 1. c. 12. n. 10. Fle. l. 1. c. 43. & 47   
44 Whatsoever is left and forsaken, ou● Lawyers term a Waife, this was formerly by natural right the finders, but now by ou● custom it is the Kings, 
q Bro. tit. Estray & Waife.  that also it called a Waife when any personal or movable Chattel is feloniously taken and being through the fear of t●e Felon left, hath no owner to claim it, 
r Kitch f. 12 b. n. 39  wherefore if any such thing be found, it is the Kings or the Lords of the Manor, to whom this liberty and privilege is granted by the King, yet so that Restitution is to be made, if the Owner claim it within a year and a day. 
s Brit. c. 17.   
45. So any beasts that are found straying in any one's ground follow the custom of things left, for even these also were by out ancient writers included under the name of Waifes 
t Bract. l. 1. c. 12. n. 10. Fl. l. 1. c. 43. & 47  but others call them by a more particular name, Estrays 
u Brit. d. c. 17  which our Latines render, Extrahura: Because for the most part they break forth and stray against their owners will, and these after a year and a day, if not claimed by their Owners within a year and a day, Escheat to the King or the Lord of the Manor where they were taken, Provided they be duly cried and proclaimed in the Neighbouring Markets. 
w Brit. ib.   
46. The same is to be understood of things cast out of a ship in a Tempest to lighten the ship, or of such things which happen to fall out of a Cart when it runs, the owners not ●owing of them, but in case of Shipwreck which we call a Wreck) where neither any 〈◊〉 the Passengers, nor any Cat or Dog ●●ts from the Ship to the shore a live, what●●ever of the Goods or ship shall be cast up●● the Land by the Sea, shall be the King's 〈◊〉 the Lords of the Fee, to whom the King ●●th granted this privilege. 
x Brit. d. c. 17. & Westm. 1. c. 4.   
47. No man can have any property of ●ands in England before he be a free Deni●en, 
y Bract. l. 5. tract. 5. c. 25. n. 3. Bro. tit. Corporation 26. Dyer, f. 2. n. 8. & f. 224. n. 29.  for that whatsoever is purchased by ●n Alien is forfeited to the King. 
z Bro. Denizen. 16.    

Of things Corporeal, and Incorporeal.  
TIT. II.  
THere are moreover of things, some which are corporeal and some which are Incorporeal. Corporeal are such as may be touched, as Land, ground; things  and movable, which can move themselves, as living creatures and the like, or which may be moved.  
Things which are Incorporeal are such which can neither be seen nor touched, as rights and Privileges, the right of walking, acting, conveying of water, and the like. 
a Bract, l 2. c. 12. n. 3. Flet. l. C. c. 3. Blow. f. 170.  Now rights and Services are the same, but have their appellations from a divers respect. 
b Bract. l. 4. tr. 1. c. 37.  To this may be added the right of Pasturing, which we call common of Pasture▪ Fishing, digging of Turfs, felling in other men's Woods, the right of presentation to 〈◊〉 benefice distinct from an Estate of Inheritance, which is by us called Piscaryes, Turnryes', Estovers, 
c Id. ib.  Advowsons' in gross. 
d Bro. Tenure, n. 15. & 18.  And lastly an Annual Rent, 
e Doct. & Stu. c. 30.  now this cannot be said properly to be in possession, but 〈◊〉 it were. 
f Bract. l. 4. tr. 1. c. 37. & l. 2. c. 23. Myns●n. ad rubr. Instit.   
1. For things movable or  our Law determineth, Quatenus to the Persons, and as they either are or are not in the po●er or property of man, 
g Id. ib.  Now property is 〈◊〉 full and absolute right of disposing of, or selling any thing corporeal, unless the Law & any condition hinder, 
h Gothof. ad rubr. ●. de aqu. rerum dominio. Lit. l. 1. c. 1. Bract. l. 2. c. 21 & 23. Brit. c. 40  Possession or Se●su●e, In Dominico, etc. Is properly of corpore all things, and incorporeal we only say as of Fee. For that they are not absolutely acquired by Livery of Seisin, but as it were, now this Seizure, In Dominico, etc. Is twofold. Direct, or merely for use. Direct, [which is also termed absolute] is that which comprehends both Property and use, The other consists solely in the benefit and use of a thing. 
i Bract. l. 4. tr. 1. c. 27. n. 6. & tr. 4. c. 4. Fl. l. 1. c. 12.   
2. The English have a full Dominion and Power of things corporeal and movable, but not of  if we except the supreme power and right of the Crown; for the Subject hath not an absolute freehold in their Lands and Tenements, but a Fee only, and that fee doth not comprise so absolute a power, appears, not only by those Authors who writ of Fees, 
k Anto. Con. in Feodorum Comment. c. 2. Matthae us ●●esenbecius in tr. de feodis c. 1.  but even by Littleton himself, when he says that such a one was seized of such an Estate in his Demesne as of Fee, by which words he affirms the highest and fullest title to be expressed. And these words, (as of Fee) do abate somewhat of an absolute power, and argue a Tenure from a superior, but that these words are sometimes referred to the Kings Demesne, 
l In 27 H. 8 16.  is either from the ignorance of speaking and applying; or else that distinction is maintained by which some will have a double acceptation of the word Fee, viz. One by which a man holds an  thing by any Title to him and his Heirs. The other by which one holds from another by Rent or Service, or both, 
m Flet. l. 5. c. 5.  whereas Fee in the second acceptation is never without the Oath of Fealty, 
n Terms of the Law, V Fealty. Fulb. Paral. c. Seigniority, f. 19 b.  which the King never gave to any one as having an absolute Power. 
o Fort. c. 9 Bract. l. 1. c. 8. Brit. in Praemi.   
3. Fee which is in latin Feodum, and by some Feodum, comes from the Germane [Fief] which signifieth an Inheritance held of another, 
p Hottoman. b. disput. c. 11.  and is by those that writ of Fees defined to be an  thing given to another, in such a manner that the Property continues in the Power of the Donor, but the benefit and use is to the Donee, and his Heirs, Males or Females for ever. So long as the Donee and his heirs do faithfully their Services to the Lord, 
q Anto. Continus in Com. sup. feod. c. 3.  so that Fidelity or Fealty is the foundation of Fee and nothing else. Yet it often happeneth that it is not bestowed Gratis, but for some small consideration of Money in the name of Rent, or for Services, 
r Duar. in Com. sup. feod. c. 12. Smyth. Com. l. 3. c. 8.  but we understand by Fee, all which we hold to us and our Hei●● 
s Bract. l. 4. tr. 3. c. 9 n. 6. Lit. l. 1. c. 1.   
4. Fee, as it is taken for an Inheritance held of another, is held either of the King or a Subject, or (that we may use our ow● Phrase) a common person. Fees that are held of the King are double, either in right of his Crown (which we call Tenure in Capite) or of some Honour or Manor appertaining to the Crown: But a Subject although he may have others who hold of him in Fee, from whom he may exact Fealty, yet himself is either mediately or immediately Feodary to the King, for all the Land of this Kingdom which is not held of others by Services is held of the King and belongs to him, either as ancient Demesne, escheats, or perquisites.  
5. Fee is divided into many Species, either from the Effect, or from some cause efficient or formal, but we shall only discourse briefly here of those which we meet with most frequently in our Books.  
6. Fee therefore is either Liege or nonleige some Feodists 
t Duar. ib.  will have it to come from the Italian word [Liga] which signifies a Band or League, and that because it ties and obliges the Vassal. For Liege is properly where any one swears Fealty to his Lord non-Liege is when with the exception of another. The first is due only to the King, the later to common persons. 
u 10 R. 2. & 11. c. 1. & 34. & 35. c. 3. Lit. l. 2. c. 1.   
7. Again, Fee is either Royal or no● Royal. Royal, is the greater, for that it hath somewhat of Royalty in it, as from whence any one is instituted from the King ●eing absolute, without acknowledging a superior. Of this sort are those which had a dignity or Honour conjoined with the pow●● of their Privileges, and are by us styled sureties or Prerogatives Royal; as where ●●e King grants by his Charter to any Sub●●ct the view of a Frank Pledge, the Pleas 〈◊〉 Impranding, the amendment of the faults 〈◊〉 Assize, the adjudging of Robbers, as infang●●eife and outfang thief, Soc, Sac, Tol, Theme. ●o punish by the Gallows, or other punishments which the execution of Judgement ●●all require Goods of Felons, and which appertain to the Peace, and consequently to ●●e Crown. 
w Bract. l. 2. c. 5. n. 7. &. c. 24. & l. 3. tr. 2. c. 35.  Wrecks of the Sea, Whales, ●u●geons, Free warren, Fair, 
x Bract l. 4. tt. 1. c. 46.  and those ●●her things which fall within the King's derogative. But of these Fees there are ●●th us certain degrees, since some have a ●●eater number, some a lesser granted unto ●●em.  
The first, the principality of Wales claims 〈◊〉 right, 
y Polid. Vir. in ed. 1. f. 343. lin. 28.  which from the time of Edward ●●e first did belong to the King's eldest Son. ●nd the second is claimed by the four Pa●●tinates or Counties Palatine, Lancaster, ●●rham, Chester, and Ely. 
z 5 Elix. c. 23. 17 Ed. 4. c. 1. 27 H. 8. c. 25.   
And these have those Fees which we cal●●d Honours which the King (besides the Jurisdictions contingent to Courts Barons) hath ●●anted some, though not all these Royall●●es out of his Munificence. 
a 31 H. 8. c. 5. & 33. c. 37, 38. & 37. c. 18.   
8. Thirdly, Fee is either noble or Ignoble, ●●oble is that which hath any Dignity annexed to it, or which ennobles the Possessor or concludes him to be noble. And of the sort with us are those which we call Mann●● whose Lords have some Jurisdictions, thou●● not Royal over those which hold of their 〈◊〉 
b Perk. 670. Fulb. par. Seig. f. 18. Kitch. f. 4  Ignoble, is that which depends of such Manor, and is granted to Countrymen 〈◊〉 their Heirs for some base Service; this 〈◊〉 commonly called .  
9 Fourthly, Fee is either new or an●●ent 
* Homage ancestral.  new, is there where any one is first all invested by the chief Lord of the 〈◊〉 and that either by the Courtesy of the Lo●● or for Money paid to the former feodary for he is the first of a new Family, who yei●● Homage and Fealty, 
c Lit. l. 2. c. 7  ancient Fee is who the Feodary and his Ancestors, time out 〈◊〉 mind, have held such a Fee, and here the F●●dists 
d Id. ib. & new terms, tit. Hom. Auncest.  place a Medium between these two, 〈◊〉 paternal Fee which comes by four degreese Descent, and they define that to be the ancient which descends from more. 
e Duar. come. in cons. feod. c. 4. n. 10.   
10. Fiftly, Fee is divided into ecclesiastics and Laic or Secular. Ecclesiastic is th● which is possessed either by Ecclesiastic persons or which belongs to Churches. 〈◊〉 that which is held by Lay persons, and cann●● be possessed by Ecclesiastic, and indeed 〈◊〉 Fees as with us laic, unless they become ●●ther by some special grant from the King which we call giving to Mortmain. 
f Mag. Char. c. 36. 18 E 3. Stat. 3. c. 3. 15 R. 2. c. 5. Pol. Virg. l. 17. Eng. Hist.   
11. Sixthly, Fee is distinguished 〈◊〉 Masculine and Feminine. Masculine is th● which is given to the Feodary, and the Hei● Males of his Body, and of this kind 〈◊〉 those of Dukes, Marquesses, Earls, Viscounts, 〈◊〉 Barons, for the most part. Which 〈◊〉 defect of Heirs Males are extinguished, 〈◊〉 return into the supremacy, from whence ●●ey Issued, but these are at this day rather ●itles of Honour then Fees, in regard they ●re for the most part conferred without 〈◊〉. feminine, is that which may descend to ●●e ●●male Issue, as when it is given indefinitely 〈◊〉 the Feodary and his Heirs, and so that or default of Heirs males it may come to ●he females and their Issue. 
g Bract. l. 2. c. 34. & l. 1 c. 8. n. 4.   
12. Lastly, Fee is either pure or simple, or conditional. Simple is that which is held 〈◊〉 a simple and perpetual Right to the Feodary and his Heirs for ever. Conditional, 〈◊〉 that which is granted to the Feodary and ●uch or such Heirs, for default of which it returns to the Donor and his Heirs, and therefore he that hath Lands given to him and his Wife, and to his Heirs begotten of her, in ●ase she die without Issue before him, is called ●enant in tail after hope or possibility of Issue extinct For this kind of Fee with us is called Fee-tail, coming from the French word [Tallier] to cut, part, or divide, as if we should say a Fee by some means severed or diminished. 
h Lit. l. r. c. 1 & 1 Instit. Jur. come. c. 11. & 13   
13. And this kind of Fee is double, viz. Taile general and Tail special. General Taile is where a Fee is given to the Feodary and the Heirs of him lawfully begotten or to be begotten, for in this case the Children of either Wife, whether first, second, or third, shall inherit: special Tail is where a Fee is given to the Feodary, and his Wife and to the Heirs of either of them 
l Lit. ib. Inst. Jur. c. 12. West. 2. c. 1.  or [according to some] when it is given to him and his Wife and one Heir of their bodies lawfully to be begotten, and one Heir of that He●● only, 
m Perk. 171  but this, whether it be properly to be styled a Fee for want of perpetuity may 〈◊〉 be doubted.  
14. Now a Fee is not limited to one Feodary, but may be possessed by more, so tha● they are called Partners, joint-tenants, 〈◊〉 Tenants in Common. 
n Lit. l. 3. c. 3 Inst. Jur. come. c. 15.  Partners are either by Law or custom, by Law are Sisters Coheirs, because the Heirs Males being dead they equally succeed their Parents in the Fee, 
o Id. c. 1. & 3  by custom are Brothers in ma●● Counties, especially in Kent, from the Custom of Gav●lkind, called so from the equality of apportioning the Inheritance 
p Id. c. 2.  joint-tenants are they which hold Lan●● or Tenements by one and the same Title, but not hereditary. Tenants in common 〈◊〉 those which possess Lands or Tenements 〈◊〉 indiviso, by divers Titles, as in case one Coheir sells her part to a stranger, he is not joint-tenant with the other Partners, but is called-Tenant in common. 
q Id. c. 4. Inst. Jur. come. c. 15.   
15. A Fee with us is not only of Corporal things but incorporal also, for the custody of a Forest, 
r Vid. N. b. f. 6. Dyer, f. 30. n. 209.  Prison, 
s Id. f. 41.  or County, 
t 28 Ed. 1. Stat. 3. c. 8.  may be granted to one in Fee, and the same may be said of an annual Rent, 
u Vid. N. B. fo●. 8.  and of an advowson severed and not appertaining to any Manor, which we call an Advowson in gross 
w Lit. l. 1. c. 1. Bro. tit. Tenors, 105.  now there are many services pertaining to a Fee, which we shall mention in the next Chapter.  
16. There are belonging even as it were to the very nature of Fees, Fee farm, free farm, and free Tenement, Fee farm is a Tenure of Lands and Tenements granted to any one and his Heirs for a yearly Rent, which equals the third, 
x F. N. b. fol. 210. b.  or at the least the fourth part, 
y Old Tenure ver. Fee farm.  of the true value without any other Services then what are expressed in a Charter of Feoffment, 
z West. part. 1. symb. 463.  some affirm that a Fee farm can only be granted for the life of the Farmer, and some will have it Fealty although not expressed 
a New terms of the Law.  in the Feoffment, and others that reasonable relief 
b Bract. l. 2. c. 39 n. 9  is due of right from the Fee-Farmer to the Donor, but the condition of this Tenure is such, that if Rent be not paid by the Tenant for the space of two years, than the Lord or Feoffer may recover the Lands to him and his Heirs upon his action.  
17. Britton makes free farm where Lands and Tenements are so given that the nature of Fee by Feoffment is changed from Knight's service to certain annual Service, so that there is neither Marriage nor Relief requirable, nor any other service expressed in the Feoffment 
c Brit. c. 66.  but I do not remember that I have read this in any other Author.  
18. Free Tenement or freehold is, where Lands and Tenements are held only for life of the Tenant, and such a Tenant is said to hold, In Dominico suo ut de libero Tenemento, 
d Dyer f. 221. n. 19 & f. 153. n. 10.  But if it shall be said that Fee is naturally a . I shall not deny it, only must add, that it is also somewhat more, because perpetual, 
e Inst. Jur. come. c. 10. Lit. l. 1. c. 6. Bract. l. 4 tr. 1. c. 37.  but of that  which is meant here there are two kinds. One which is for term of life even by the very custom and Law, the other which is so only by agreement. Of the first sort are Tenants by the Courtesy of England, and tenants in Dower, for such is the Civility and courtesy of our nation, that if a man marry a woman that is an Heir, and have Issue by her, born alive, that Land of which he is seized in right of his Wife in her life time he shall hold after her death for term of his own life, 
f Bract. l. 5. tr. 5. c. 30. n 7. Flet. l. 6. c. ult. Dr. & Stu. l. 1. c. 7. & l. 2. c. 15 Dyer, fol. 25. n. 159. & f. 95. n. 35. In. J. co. c. 8  which Law some ascribe to Henry the first, 
g Spec. Just. l. 1.  a woman also whose Husband in his life time was seized in Fee, shall have the third part of his Estate, he being dead, and in some places the half, 
h Lit. l. 1. c. 9  in some the whole for her Dower, 
i F. N. b. foe 150. P. Bract. l. 4. ●r. 6. c. 13. n. 2. Dr. & Stu. Bri. 1. c. 10.  if at least she be nine years old that she may claim a Dower: 
k Lit. l. 1. c. 4 Flet. l. 5. c. 22.  there is another sort of Dower which is freehold also, namely Dower which is by consent, which is that that is agreed on before marriage at the Church door, or otherwise between the man and Wife, 
l Lit. l. ●. c. 4. Inst. Jur. come. c 9 Flc. l. 5. c. 22 Brac. l. 2. c. 39  briefly all Lands and Tenements which are either by bargain, gift, or any other contract, held for term of ones own life or another's, are comprehended under the name of . 
m Inst. Jur. come. c. 6 Bract. l. 2. c. 5. n. 7.   
19 And as Fee 
n Dyer, f. 213 n. 42. fol. 288. n. 55.  so free Tenement or freehold may be of a thing incorporal, as an office for life. 
o Bro. tit. Tenors, n. 25. Dyer, f. 211 n. 19   
Thus have I given you a description of estates in Fee, Inheritances, and Free-holds, the third is a kind of possession or Tenure comprehended under the name of Chattels ●●lls, and they are those which we hold 〈◊〉 Term of years, or at the will of another. ●enant at will is two fold, viz. either by common Law, or by the custom of any Manor, ●hich is by Copy of the Court Roll, or by ●erge, 
p Inst. Jur. Com c. 2. 3. Lit. l. 1. c. 9 Kitch. fo. 102. b. Coo. l. 3. case Heydon foe 8. a. b. & f. 9  But this kind we refer to the chapter of uses. Of which hereafter 
q c. 4. of this Book.  we all speak.   

Of the Services which Inheritances are bound unto.  
TIT. III.  
BEcause Services are reckoned amongst those things which are termed incorpo●l, we shall take a view of them; now there a certain service or Servitude which sub●cts one man to another, 
a See. l. 1. c. 3.  but it is not this which we intent here to treat of, but that which subjects one Estate or Fee unto other. Yet is it like that other which ren●rs one man a Servant to another, for as at constitution is called, Jus Gentium, the ●aw of Nations, which against nature subjects a man to the Power of another, so may also be said of Service or that constitution ●hich subjects one house to another, and one state to another. And thus Services may 〈◊〉 divided into such as appertain to Cities ●nd such as are Rural, 
b Brac, l. 4.  those which be●●ng to Cities, and for the most part such as the Civil Law mentions, namely such 〈◊〉 inherent in the very buildings, and therefore called from the City Fees, because 〈◊〉 call all buildings City Inheritances, tho●● built in Villiages. 
c Bract. ib.  Of this kind are th●● not to build a House higher, not to hin● lights or prospects, to convey and keep 〈◊〉 Gutters and sinks from the yard or 〈◊〉 of ones Neighbour, to lay a prop upon 〈◊〉 their man's Wall or ground for the supportance of a House, to bear an Incumberan●● to have a Way, Road, or Passage. For thou●● a Way and Road be Rural & Country Services, yet are they City also, when apply● to City Inheritances. For it often happe● that a neighbour hath a power and libe●● of passing through a Yard belonging to 〈◊〉 House, or of going up one's stairs to 〈◊〉 own chamber, Rural are such as are not inherent to buildings but are wholly without them. And these also are almost the sa●● which the Civil Law reckons [if we exce●● those which the customs of Fees have introduced] as a Road, Pathway, Aqua dust, 
d Dyer foe 248. n. 80. & fo. 319. n. 7.  drawing of water, folding of Cattles, papering of Cattles, quenching of Lime, diggin● of Sand, taking of Stone, and the like. No● both the kinds of Services are either real 〈◊〉 personal, with relation to the thing or person to whom they are due.  
1. Fee Servitude which both by our F●●dists and Lawyers is called Service, is either military and noble, or Rustic and Ignoble 
e Fulb. divis. of seign. and services f. 20. b.  military is that which performs some duty belonging to military discipline, or some other thing that is honourable, and this also ●s double, one which is due to the King only, 
f Lit. l. 2. c. 8  the other to the Lord of the Fee, notwithstanding that he be Feodary to another, that which is due to the King is double also, namely Serjeanty and Castlegard.  
2. Serjeanty is either Grand or Petit, Grand is where any one in the name of his Fee is personally bound to perform any Office or other honourable thing to the King, 
g id●b. Flet. l. 1. c. 10. and l. 3. c. 16.  which some also affirm may be due to a common Person 
h Bract. l. 2. c. 35. n. 6.  of this kind is the bearing the King's Standard or Spear in War, the leading & conduct of his Army, the performing the Office of Marshal, the sounding of a Horn at the incursion of any of the King's Northern Enemies, to send an armed man, if himself will not go, to fight under the King when ever necessity shall require, within the four Seas. to carry the King's Sword before him at his Coronation, to perform the Offices of Sewer, Taster, Carver, Butler, or Chamberlain. 
i Coo. l. 2. case Cromwell foe 81. a.  And in such Services all the Barons in ancient time were obliged.  
3. Petit Serjeanty is that which renders to the King as an acknowledgement of the Tenure yearly, a Bow, Spear, Dagger, a pair of Gauntlets, or a pair of gold Spurs, an Arrow, a Horse, or any such small thing which belongs to War. Now he that holds such a Fee, doth not perform any personal Duty but rather Patrimonial and real, and that certain: And therefore differs somewhat from the very nature of a military Service, having a property of a different Species, 
k ●it. l. 2, c. 9 Inst. Jur. Com. 27. Broo. tit. Tenors 69.  but Fleta will not have this duty exceed the value of half a mark. 
l l. 1. c. 11.   
4. Castlegard we have defined to be a service due to the King only. Which is originally true, because no man can erect a Castle or Fort in the Kingdom without the King's Licence; but in case the King granteth a Castle with all the liberties belonging to it, unto a Subject, he grants Castlegard, also if there be any such Service due unto i●▪ And for this reason this Service may as well belong to a Subject as the right of a Forest 
m Manwood par. 1. de. Jur. forset. pag. 87. Cou. col. 4. fol. 88 a. and Lit. c. Socage.  It is a Service consisting in fortifying and defending any Castle of the Kings or another Lords as often as the Feodary shall require. And this is properly Knights Service when it requires the Person of the T●nant, but when it is converted into a certain pecuniary mulct, payable every year for the fortifying and guarding of a Castle, it is alt●red from the nature of Knight's Service. 
n Tit. ib. Inst come. c. 27. Bro. tit. Tenors n. 58. F. n. b. foe 259. A.   
5. The second sort of Knight's Service or Military which is due to common persons as well as to the King, is called Scutage 
o Blow. fo. 126. 129.  from Sculum, a shield. And he that holds by this is obliged at his own Charges for a certain number of days to follow his Lord in the Wars against the Scors: 
p Lit. l. 2. c. 3.  They who hold by an entire and whole Knight's Fee, 
q Camd. B●it. 111.  which s●me determine to be 680. Acres of Land, some eight hundred Acres, some fifteen pounds Sterling, some twenty pounds, 
r 1. Ed. 2. c. 1.  and others forty pounds, 
s smith's. Com.. c. 18.  are bound to serve for the space of forty days, 
t Bro. Tenors n. 19  they which hold but by half a Knights Fee twenty days, and so accordingly, 
u Lit. l. 2. c, 1.   
6. Now that certain differences between Lords and Feodaries, as well concerning Arms as the time of Serving, viz. whether from the time of showing or perfecting, to begin, might be removed, it appears in most places, that it is by joint consent of Lords and Tenants agreed, that the Tenants shall pay yearly a certain sum of Money to their Lords according to the value of their Fee, and so to be freed from personal duties, 
w id. ib.  from whence the thing itself seems so changed by degrees, that that service which with our Ancestors was so incertain, is in most Fees at this day reduced to certainty and is called Scutage certain, 
x Lit. l. 2. c. 5.  that incertain kind being in divers Manors quite extinct, now this certain Seutage is Socage. 
y Bro. tit. Tenors 28. 29.   
7. There are also other real Services which attend a Knight's Fee, as the shadow doth the Body, as Homage, Fealty, Custody of Land and Heirs, Relief, Marriage, 
z Brac. l. 2. c. 35. Lit. l. 2. c. 4.  for these no time hath hitherto exterminated. 
a Polid virg. hist. ang. 16.   
8. Homage which the Feodists call also, Hominium, 
b Hottom. disp. de feod. 3.  is a real Service, 
c Bri●, c. 66. spec. J●s●. b. 3. Flet. l. 3. c. 26.  which the Feodary yields regularly to his Lord at his first institution; by prostrating himself on both Knees at his Feet with his head uncovered, io●ning his hands and putting them between his Lords, who remains sitting, and pronouncing these words or to the same effect. Hear Sir, I become your man from this day forward of Life and Limb, and of earthly worship, and shall bear you Faith for the Lands I hold of you (and if it be not the King that receives the Homage) saving always the faith which I own unto our Sovereign Lord the King, so God me help, and the Contents of this Book, which said, the Lord shall kiss him. 
d Bract. l. 2. c. 35. n. 8. 9, Lit. sect. 2. l. 1. Inst. Com. c. 23. 17. E. 2. Brit. c. 68   
9 Ranulphus de Glanville, denieth, than Bishop who is consecrated, or a Woman may do Homage. 
e l 9 Spec. 9 Inst. l. 1.  But Fitzherbert 
f N. B. 258. f.  according to the Rule in the Register affirms, that a woman if single may swear Homage and Fealty to the King, when from him she receives Livery of her Lands, and our more modern Authors hold, that both Clergy and Women are subject to this Service, although the terms of expression is a little different. For a Clergy man for that he hath set himself a part for the more special service of God useth these words. I do Homage to you and shall bear your Faith for the Lands and Tenements which I hold of you, saving always the Faith which I own unto the King our Sovereign; 
g Inst. Com. c. 23. Lit. l. 2. c. 1.  and a single woman doing Homage doth not say unto her Lord, I become your Woman, for that it is not convenient that she should be another man's woman, than her Husbands, whom she shall marry. But she shall pronounce the same words which are prescribed to the Clergy, 
h Id. ib.  and a woman who is married shall do Homage by her Husband. 
i Id. ib.   
10. If it happen that any one holds divers Fees by Knight's Service of divers Lords, he ●all do Homage to them all, but shall use ●●ese words in the end, saving the faith which own unto our Sovereign Lord the King, and ●nto my other Lords. 
k id. ib.   
11. Now it is to be understood that Homage is always annexed to Knight's service, ●ut not solely to it, for Tenant in Socage ●ay also do it. 
l Brac. l. 2. c. 35. n. 6.   
12. Homage is divided into new, and ancient [called Auncestrell] new is that which 〈◊〉 performed by him who hath a new Fee, 
m Instit Com. c. 28. Lit. l. 2. c. 7.  ancient by him who hath an ancient one, ●nd that ancient hath a double effect, one ●hat the Lord shall secure to his Tenant his Estate or fee, or (as our Authors say) shall war●ant it against all men: The other, that he ●hall save him quiet and harmless from any Services of another Lord, at least in respect or relation to that Fee.  
13. Fealty which our Authors also call Fiducia, is a real Service 
n Brit. c. 66.  due from every Tenant to his Lord at his first induction, whether the Fee be noble or ignoble, for such is the disposition of this contract, that whoever holds by Fealty, only holds the most freely of any, one except the King, 
o Smith Com. l. 3. c. 8.  for no Subject can hold without Fealty, 
p Lit. l. 2. c. 5. west. Simbol. l. 2. Sec. 303.  and anciently he that broke faith with his Lord did forthwith forfeit his Estate. 
q Bract. l. 5. tr. 3. c. 6. n. 3.   
14. Fealty is double, one is general, confirmed by the Oath of every Subject to the sepremacy. The other special; due unto the Lord of the F●e, 
r Le grand constumier de Normand B. Fle. l. 3. c. 16.  the first is constantly exacted at Sheriffs Courts, and view of frankpledge or Court Leets, from all which in the verge or precinct of the County or Leet, who are twelve years old, otherwise they have no warrant to continue in their Estates, 
s Brac. l. 3. tr. 2. c 1. n 1.  yet our Ancestors more ancient used not to impose this Oath upon any, under fourteen or fifteen 
t id. ib. Flet. l. 1. c. 27.  years of age, the form of which Bracton thus explains. They shall swear that they will not receive or entertain, persons outlawed, Murderers, Robbers, or Burglaries. Nor that they will consent or connive at them or their Receivers, and that if they shall know any such, they will atta●● them: and that if they shall hear any H●● and Cry, they shall immediately follow with their Family and Servants, 
u Brac. cod. Flet. cod.  and Britt●● more briefly, 
w c. 12.  when he saith that they shall swear to bear saith unto the King, and that they shall neither be Felons themselves nor consent to felonies.  
15 The form of fealty special is double▪ One which is proper to freemen, the other to Villains. When a freeman swears fealty to his Lord, he lays his right hand upon the Book and saith as followeth, Know you this my Lord N. that J. M. shall be faithful and true unto you, and faith to you shall bear for the Lands which I hold of you at the times assigned; So help me God and all Saints. 
x Lit. l. 2. c. 2.  When a Villain swears fealty, he shall hold his right hand a little higher than the Book, so that he touch it not, and shall say. Know you this my Lord N. that J. M. shall from this day forward be true and faithful to you, and faith to you, shall bear for the Land which I hold of you in Villainage, and I shall be justified by you in body and goods, so help me God and all Saints. 
y 14. E. 1. c. 2. Spec. Inst. l. 3.   
16. Custody or Guard is a real service proper to a Knight's fee, by which the Lord hath the guard and care of the fee, and that to his own use, without giving any account during the minority of the Infant, his Tenant: As also the Education and Guard of the Body of the Heir. Now every one is with us an Infant till 21. years of age, if a Male; for our Law presumes, that Knight's service cannot be duly performed till that age. 
z Fortesc. c. 44.  But we have spoken enough of this already: Only this we shall add, That the Lord may, if he please, alien this his title of Guardianship as well as any other thing which he hath; whence it is, that there is a double Guardian, namely, one of Right, as the Lord of the fee: The other in Fait, which is, he to whom the Lord hath aliened the Guard of the Heir and Lands, or of the Heir only. 
a Inst. come. c. 24.   
17. Relief is a real service or Patrimonial (though some call it aptly a fruit or beneficial profit of a service) 
b Coo. l. 3. case Penantes, fo. 66. a.  due both to Knight's service 
c Brac. l. 2. c. 4. Lit. l. 2. c. 4. Brit. c. 66. fol. 165. a. Flet. l. 3 c. 17.  and Socage. By which the Feodary, Tenant by Knight's service, whether male or female, being at full age at the death of the Ancestor (viz. the male 27. the female 14. years of age) is obliged to pay a certain sum of money. Tenant in Socage paying so much for Relief as he pays 
d Lit. l. 2. c. 5. 19 H. 7. c. 15. Bro. Tenors, 76 Flet. l. 3. c. 17.  yearly by way of Rent to his Lord. At what age soever he be at the death of his Ancestor, & that without delay, 
e Dr. Stu. l. 1 c. 7. Flet. l. 1. c. 9  so that the first year he payeth his Rent double, one by way of Relief, the other part by way of Rent 
f Flet. l. 3. c. 17. . For the Lord may immediately distrain, that is, take whatever he finds upon the Estate by way of pledy, until he shall be satisfied for his Relief 
g Littl. l. 2. c. 5. . So if one hold by fealty, and a pound of Pepper, the Heir shall pay the first year two pounds of Pepper. And the Law is the same, where the Tenant pays for his Rent yearly a certain number of Capons or Hens, or a pair of Gloves, or so many bushels of Corn, or the like. But if in regard of the season the Tenant cannot pay Relief presently, than the Lord ought to expect until a convenient time. As in case he be bound to pay a Rose, or a bushel of Roses at the Feast of St John Baptist: Here, if he die in Winter, the Heir ought not to be distreyned by the Lord, until the season come that Roses may be had 
h Littl. ib. . This the Feodists define to be a Present or Gratuity which the new Vassal bestows upon his Lord for admission upon the death of another: Or for any other cause which shall occasion the Estate to come unto him, in regard it is now taken up by a new one 
i Hotoman, verb. feodalis ver. Relevium. .  
18. And it is to be observed, that the Heirs of Earls or Barons, are others, that hold of the King in Capite (that is, in right of his Crown) by Knight's service. If they are at full age at the death of their Ancestors, shall pay their accustomed Relief, Viz. an Earl 100 pounds, a Baron an Hundred Marks. The Heir of a Knight for one Knights Fee 100 shillings: And if there be any who hold ●y a double Knights fee 200. shillings, and ●o according to the rate, 
k Mag. Ch. c. 2. Instit. come. c. 24. Flet. l. 3. c. 17.  which is also ●rue in the cases of other Lords of Fees. 
l Brac. l. 2. c. 36. Brit. c. 69.   
19 The Ancients derived this word Re●eife, a Relevando, because the Inheritance which lay still by the death of the Ancestor, was raised up into the hands of the Heir: And for this raising up, there should be a certain fine or acknowledgement paid by the Heir, and this they termed Relief. 
m Brac. ib. Brit. ib.   
20. Marriage is a real service belonging ●o a Knight's fee, by which the Lord of the ●ee hath a power of bestowing his Feodary in Marriage according to his pleasure, or at least of claiming the value of the Marriage, ●f so be that he be under age at the day of the death of his Ancestor; but of this we have spoken enough before. Now Marriage is an Equivocal word, since it signifies also the fee itself which is given in Matrimony 
n Brac. l. 2. c. 34. & 39 . And this shall suffice of services that are noble.  
21. That service which ●s rural and ignoble, is by us called Socage, from the French word (Soc) which signifieth a Plough, or Soccage, as Sockage: The cause of which Appellation was, that these kind of Tenants were by our Predecessors bound to the service of the Soc, or Plough, and came yearly when the Season required, with their Oxen to plough and sow some part of their Lords Land. But by process of time it is now become so, that these kinds of works are in most places changed into a certain Rent, although the ancient name of the service remains still. 
o Lit. l. 2. c. 5. Inst. come. c. 31.  So that this Tenure which at first was slightly esteemed of, is now accounted mud the better; for the original labours are converted into a moderate sum of money, only the value of the yearly rent is exacted for Relief, and it is obliged neither to Gua●● or Marriage. 
p Dyer, fol. 362. n. 18.   
22. Wherefore Socage which at first was purely a Villain and Rural service, is now ●●vided into free and Villain. Free Socage 〈◊〉 that which in lieu of villain services pays 〈◊〉 the Lord a certain annual rent. 
q Brac. l. 2. c. 35. n. 1.  Vill●●● Socage is double, that ancient, Viz. by which there is a certain service performed by reason of the Fee, for this is even still in use 
r Lit. l. 2. c. 5 Inst. corn. c. 31.  And the other which is pure villainage, in which there is obligation to incertain services, and undetermined, where one cannot tell over night what service will be required next morning, Viz. where any one by reason of his fee or person is engaged to do whatsoever is commanded him. 
s Brac. l. 2. c. 8. n. 3. vet. N. B fol. 49. Brac. l. 1. c. 11. n. 1. Bri. c. 66. fo. 165 b.  But our Moderns do not subject those who hold in Villainage to such uncertain services. But call that villainage where a villain Tenant according to the custom of a Manor or will of the Lord, or a Freeman by reason of his fee, performs service duties to the Lord of the Fee: As to carry Dung out of a City, or ou● of the Manor of the Lord to his Lords lands, and the like. 
t Lit. l. 2. c. 11. Inst. come. c. 34. Bro. c. 66. n. 9   
23. That Fee therefore which is held by free Socage, enjoys the best Conditions of any other at this day, being freed from the encumbrances of Guard and Marriage, 
u Smith Com. l. 3. c. 5.  which to Tenants by Knight's service often falls out most heavy. But this at present, if taken according to the utmost latitude of its signification, is understood to include all other kinds of Tenors, which are held by a certain Rent, free from Guard and Marriage, 
w Brit. c. 66.  as those which are held by Franck-almaign, 
x Id. ib.  or in ancient Demesne of the King 
y Id. lb. Lit. c. Socage.  by fee-farm, 
z Brit. ib.  in free Bank 
a Id. ib.  or Burgages. 
b Bro. tenors n. 5. & 77.   
24. The service of Franck-almaign, if at least we may call that a service, which pays neither fealty nor any terrene duty to the Donor, is where a fee is given to an Abbot or Prior & their Covent, or to a Dean & Chapter, to a Mr. of an Hospital, or any Body or Person Ecclesiastical under that capacity or notion: That they should pray for the souls of the Donor and his Family living or dead. But this at present can be done only by the Supreme power; for that there is a Statute 
c Westminst.  which prohibits any from granting their fee-simple to be held of himself. Wherefore whosoever from that time [the King excepted] gave an Estate in Franck-almaign, did in vain add that word [Franck-almaign] because it wrought nothing, but that the Donees held the same Estate of the Superior Lord by the same services which the Donor held it, whose act could prejudice none but himself. 
d Bro. tenors 61.  But it seems the Capital Lord might remit these services, and so make it Frank-almaign. 
e Id. ib. 71. 97.   
The service of ancient Demesne is that which the Tenants of the ancient Demesnes of the King performed. Now ancient D●mesne is all that which was immediately hel● of the King St. Edward, o● ●illiam the Conqueror. 
f Term. law. Ancient Demes.  For the later took an exact survey of the whole Kingdom, so that he● might know of what Lord every rod 〈◊〉 ground within it was holden: This survey he caused to be entered into a book, which is yet remaining in the public Exchequer, by him styled ●●nchester Roll, or Doomsday. 
g Camd. Br. c. 94. Coo. pref. to his 3 d. book.  Now by ancient Demesne, we understand all those Manors which were there assigned and ascribed to the King, namely, because they were the Kings Demesne 〈◊〉 Ancient: and the service by which these Tenants hold of the King is Socage. 
h F. N. B. foe. 13. D. & 14. B. C.  But these had a double manner of holding, V●●. some by Charter, and were called the King's free Tenants: Others by Seals, which we call Copies of Court Rolls: Or by the Verge, and these were styled the King's free Sockmans'. 
i Brac. l. 2. c. 8. n. 4. Brit. c. 66. F. N. B. fol. 14. D. Flet. l. 1. c. 8.  Neither of these are Tenants at the will of the Lord, but by services first due, according to the Custom of the Manno●. 
k Kitch. fol. 99 Brit. c. 66.  Many Writers have treated of the liberties and privileges which these Tenants had, that they might have the greater leisure to attend the King's business. 
l Brit. ib. F. N. B. ib Lit. l. 2. ●●st. come. c. 35. Flet. l. 1 c. 8.   
26. The service which is performed also by Tenants in Fee-farm, is Socage, in regard Fee-farm cannot be where Guard and Marriage are reserved to the Lord by Charter. 
m Brit. ib.  And the same is to be understood of Tenants in Frank Bank. 
n Brit. ib. Br. l. 4. tr. 6. c. 13. n. 2.   
27. Burgages is a certain Rent payable by those which inhabit the ancient Burroughs or Cities (which spring from them) of this Kingdom, either to the King, or another Lord to whom the King hath granted it: And this also is called Socage. 
o Littl. l. 2. c. 10.   
28. Having passed so cursorily over these, we are to know, that there be many more Fee-services behind, which are partly proper to Tenants in Knight's service, partly to Socage, and some common even to both, as secta ad curiam, secta ad molendinum, Herriot, Aide, to make the Son a Knight, or to marry the Daughter, Quitrents, and others, which for that they depend upon divers Customs of several places, and upon the several will of Lords, is impossible punctually to reckon. 
p Bro. Tit. Tenors, n. 50. & 53. & 58.   
29. Secta ad Curiam is a service which binds the Tenant to frequent the Court of his Lord: 
q F. N. B. fol. 158.  But they are not Feodaries alone who are obliged to this; For we have mention made of a  suit of Court. One by Covenant and Oligation, Viz. when another who is not the Lord of my Fee, Covenants with me or my Ancestors, though not his Feodaries, to perform this suit of Court. Another by Custom, where any one and his Ancestors time out of mind, were wont to come to the Court of another and his Ancestors, though not Lord of their Fee. The third we may call a Servile suit, which the Feodary performs to the Lord under the notion of service. The fourth is Royal, by which are found to go twice a year to the Sheriff's Courts, or Leet Courts, that they may not be ignorant of what is done there for the peace of the Commonwealth. Now our Authors call it Royal (though by corruption some rearm it real) because the main reason of it is, to perform Legiance to the King, for there all above 12. years old 
r Terms of the Law, Tit. sug.  take the Oath before mentioned.  
30. Secta ad molendinum is a service by which the Feodaries, as bound by Custom to carry their Corn to be ground at the Mill of their Lord. 
s F. N. B. sol. 122.   
31. Heriot, otherwise Hariat, is compounded of the Saxon words (Here & Gait) Here signifying an Army, and Gait a Journey: and it was a Tribute payedunto the Lord when he went to War. 
t Lamb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, Vero. Heriot.  Bracton says that Heriot is alone with Relief: 
u L. 2. c. 36.  And Britton, 
w C. 69. & Flet. l. 1. c. 18.  That it is the Gift of the Feodary at his Death, given to his Lord, by which he leaves unto him the best Beast he hath, or some other thing according to Assignment. And he saith, that this doth not touch the Lord, nor the Heir or Inheritance, not that it is to be likened to Relief. But that it rather springs from the love and courtesy of the Tenant, coming either from a Right or necessity of Duty, and that both from villains and Free-Tenants. Heriot is at this day a service by which the Tenant is bound to leave to his Lord the best Beast, or for defect of that, some other movable which he hath at the time of his Death. And this is two-sold, namely, servile, which Tenant in Fee simple payeth, or constumary, which is ●yed by Tenant for life according to the custom. 
x Bro. Tit. Heriot. n. 5.    

Of Uses and Profits.  
TIT. IU.  
IT appears from what hath been said, that Services are either real or personal, 
a Brac. l. 4. tr. 1. c. 39  〈◊〉 real we have already spoken, personal ●re such as are due unto the person, 
b Id. ibid.  and ●is kind is twofold, one due from the per●on of one, to the person of another, of which also we have made mention before, the other which is due from an estate to a person, of which sort are profits, uses, Habitation; wherefore uses and profits, in respect of the per●on to whom they are due is a Right in respect of the thing which is due, a Service. 
c Id. l. 4. tr. 1. c. 37. n. 1.   
1. Since there are none in England besides the Sovereign power, who hath a plenary and absolute dominion over immovables, it is not hard to discern who they are, that are Possessors of estates, as to the profits, the estates being not wholly theirs, which we shall term usufructuarii; and who nor, namely whether all Subjects, by what Title soever they hold, or only some who hold by this or that Title, for those which have a Fee, have only a power profitable, 
d Wesenbec. d● feod. c. 1. n. 4.  which according to the Feodists ceaseth, they violate the faith due to their Lord, 〈◊〉 not by our Law, save in Case of Felony; 
e Stanf. plac. Coron. l. 3. c. 30  now he which hath any use or profits lo●● hath some way or other a power also, 
f Bra. l. 4, tr. 1. c. 36. n. 2.  Moreover he which hath a Fee-farm, who● the Civil Law of the Romans called E●phytenticus, 
g▪ vectigal ager.  which is one that hath an● state to improve, although he have a perpetuity, yet he pays a yearly Rent, by 〈◊〉 of an acknowledgement of the Seignory. 
h Brit. c. 66.  Lastly, he that hath a Freehold and abuseth it, is liable to an Action 〈◊〉 Waste, 
i F. n. b. foe 55 Dr. Stu. l. 1. c 23 flet. l, 1. c. 12  which should not be, were 〈◊〉 sole Lord, and had absolute power in 〈◊〉 disposing of it; but Bracton is very clear 〈◊〉 declaring what Titles our Lawyer's inc●●● under the notion of uses and profits, for 〈◊〉 stinguishing between a , and a●● state in profits; he is much more diligent● distinguishing between Fee, 
k l, 4, tr, 1, c. 36 Blow, foe, 83,  and F●● Farm, or farming of the profits, for th● in those the possessor hath a perpetuity, in the●● only an estate for life, whence it follows, th● he only is an usufructuary in an Estate 〈◊〉 us, who hath Lands or Tenements for Te● of years, or at the will of another, or 〈◊〉 who hath Lands by way of pledge or security which we call Mortgage, or by way of E●●cution, whom we call (according to the ●●versity of the cause) Tenant by Elegit, Tenant by Statute Staple, or Statute Merchant or lastly, he who hath the Lands of an 〈◊〉 in Right of Guardianship, until he come to full age.  
Now an estate of profits may be created with us, either by gift and bequest, or by conditional agreement, 
l Inst. come. c. 5 Flet l. 1. c. 12.  and it appears that our ancestors did sever the profits of a Fee from the propriety, until it was changed by Act of Parliament, 
m 27. H. 8. c. 10. Co●. l. 1. Chudleys' Case.  but those estates which are held by Copy of Court Roll, or by the Verge, at the will of the Lord, cannot be Leased out without the consent of the Lord, above a year, 
n Instit. come  nor can they be bequeathed or aliened by any agreement, without being first surrendered into the hands of the Lord, and from thence received by him to whom the former Tenant desires to alienate them. 
o Id c. 15.   
3. It is held also amongst us, that uses and profits may be of those things which are extinguished by use and daily change, so that without all doubt one may bequeath or by agreement create an use of Servants, Money, Oxen, Cows, Sheep, Corn, or any such like things. 
p Bro: Tit Tenors 133: Blow: 542:   
4. Now these kinds of uses and profits are dissolved, either by the death of the Usufructuary, 
q Instit: come. c: 5:  as Copyholds, or for Treason, in which Case the Delinquent looseth all his goods, and life also, 
r F. n: b. 2. 3: 201  or by process of time, namely when the years for which they were made are expired, by Consolidation, 
s Co. l. 2: fo. 17: a, Blow: 419: 420:  when the Usufructuary purchaseth the property, and lastly through the default of the usufructuary, as for waste, or letting his estate to another, contrary to Right and Law. 
t Flet, l: 1: c: 14 Mag: char: c: 4, Westmin, 1, c: 47: Stat, Glow: 1 5: Westmin, 2: c: 35: Dyer: fo: 30: 42: 178: F: n: b: fo: 55,    

Of Use and Habitation.  
TIT. V.  
USus hath as large an extent with us, as usufructus hath with the Civilian 
a 27 H. 8. c. 10. Dr. and Stu. l. 2. c. 22. , but I do not see any cause why the same Law which the Romans had, both for use and habitation, may not take place with us, there being nothing which I have ever read which might either hinder the giving and bequeathing of them, or purchasing them by agreements: but yet I find nothing specially or positively determined by our Lawyers, from whence I may with confidence aver●e any thing.   

Of Customs and Prescriptions.  
TIT. VI  
IT hath been said before, how that Title and Dominion over corporal things is through a just act, and purchase transferred by Livery: Now we are to declare how it may be transferred without by Custom, namely by a long, continual, and peaceable and quiet possession, through usage and time, and without Livery, 
Brac l. 2. c. 22. Flel. l. 3. c. 15.  for Prescription hath sometimes the force of Livery. 
Brit. c. 4. Brac: l: 4: tr, 1, c: 38 n, 13   
1. Justinian for the most part puts a difference between Custom and Prescription, as that the first should be of moveables, the later of immovables, 
c Pratus lexi. verb, p●aescrip,  yet they are often used promiscuously. 
Vultaeius come sup, Justin: n, 6, and 10,   
2. Movables are not always taken the lame way by Custom, for such as are bought in a public Fair or Market, although stolen, are immediately the buyers, the sale being legal, viz. the Toll, if there be any due, paid, and a coutract entered, so that the Owne● can no way be evicted: but a Horse 
v, tit, barg, & sale, l, tit, 24. Dier,  which is stolen, is thus by the Custom made one's own, viz. If it be ridden in an open Market or Fair, by the space of a full hour, 
foe, 77. n, 66,  or otherwise shall be led there, continually and openly, that he may be shown, and 
f 2 and 3, Pb, and Mary c: 7:  then the Seller coming to him that keeps the Toll book, showing the Horse, and telling his own Christian name, and surname, as also his possession and place of dwelling, proving all this by one witness, who is well known unto him that keeps the Toll, he is to enter it into the Book. 
31 Eliz, c. 12   
3. Any Beast or Cattles found straying in the fee of another is by the Custom, after public Proclamation made in the neighbouring markets, due to the Lord of the Fee, unless the owner challenge it within a year and a day, 
Brit, Dr, Stu, 2, c, 3, & 51:  so also are such things which are left and forsaken, which we call waifes, 
Id. ib:  as also such as are brought to Land from Shipwrecks, if they fall not under the notion of wrecks, (k) but all other things whether given or found, or happening through their over heaviness do not follow the same rule, much less things which are stolen; 
l New book of Entries, verb. Pro. Brac. l. 2. c. 5. n. 2. Brit. c. 17.  yet the Citizens of London are said to have a Privilege, that whatsoever any one buys appertaining to his own Trade, and brought bona fide to his shop to be bought, it becomes immediately his own without all fear of eviction. 
m Dyer s. 121 n. 16.   
4. Prescription is a legal definition, or limit of time ordained for this end, that in all transactions for peace sake there may be an opportunity observed, all Prescriptions tending to this, that nothing may be done in the Common wealth later or sooner, than seems just and equal. Moreover in the managing of affairs, it is fitting that we should have limits of time prefixed, both to quicken industry, and avoid precipitation. 
n Prataeus ubi supra.   
5. But Prescription differs from Custom, that only coming from possession, adding a new Right, and adjoining a new Title to the thing acquired, having substracted the other, whereas Custom doth nothing so, for that it only imparts its own Laws to those by whom it took its Original, and by whose usage and consent it receives perfection. 
o Conna. l. 1. Come. Jur. Civil. 10. n. 8.   
6. Prescription although in the common acceptation it be such a portion of time, as exceeds the memory of man; 
p Dr. Stu. l. 1. c. 8. Kitchen 104.  yet hath it much of diversity amongst us; but for orders sa●●e we have thought fit to divide it thus, viz. into that which works to the secure avoiding of a loss, and that which works to the certain acquiring of a propriety.  
7. For the avoiding of damage, this is ●heif, where any sum of money is adjudged, ●o the King by any Statute for an offence, ●here the offenders may after two years clapped, prescribe to themselves immunity, but in Case where it is due to the King, and another as Informer, then against the suit of the King, after two years, and against the Information of the common person after one year, 
q 31 Eliz. c. 5  unless such penal Statute doth particularly prefix a certain time, and in this Case there is great difference in Statutes, some allowing one year, 
r 3 H. 7. c. 1. 2 and 3 Ph. & Mar. c. 3. and & 5. c. 2. 1 Eliz. c. 7. 14. c. 11. 31. c. 4.  some one year and a day, 
s 23 Eliz. c. 1  some two years, 
t 8 R. 2, c. 4. 5 Ed. 6. c. 14.  some three, 
u 8 H. 6. c. 9 1 H. 8. c. 4. 39 Eliz. c: 1  some four, 
w 7 H: 8: c: 3:  some a month, 
x 23: Eliz: c. 2  some two months, 
y 23 H: 6, c, 15 1 E: 6: c: 1,  some six days, 
z 5 Eliz: c: 5, and 15:  and some fifteen: 
a 11 H, 7: c, 7, 7 H, 8: c: 7:  besides, according to the common Law, if a man upon an indictment of murder be acquitted, he may after a year and a day plead Prescription against any appeal either of the Wife or 
b F, n b. fo: 25: 9 Brit: c: 28, fo: 66, b:  next of Kin of the party slain. (s)  
8. Things , whether corporal or incorporal have divers Prescriptions. The most usual is that which is called the longest, and is extended beyond the memory of man, for whosoever will prescribe against another the maintaining of a Chaplain, to celebrate Divine Service in any Church, 
c new bo: Ent: Act. in Chaplein  or the repairing of a Church, 
d Eod: tit. in reparations.  or that being present at the Election of the Master of an Hospital 
e Eod: tit: Quare in edit in Hospital.  or an Annuity, 
f Eod. tit. Annuity in corp: politic.  or the Cognisance of any Plea in his Court, 
g eod. serm. de brief.  or any service in his fee, 
h eod. Replev. in amerciament. F. n, b. fo, 122:  he mu●● prove them to have been time out of mind, or he doth nothing, nor do we mean any other than this, when we speak generally of Prescription. 
i Dr. & Stu: l, 1, c: 8.   
9 But there are Prescriptions of short●● time as of 40 years in the way of Tithing, 
k 2, & 3: E. 6. c. 13.  five years for Lands and Tenements in case of a Fine acknowledged lawfully 
l Dr. Stu. l. 1 c. 25, l. 2, c: 14, Lit. l. 3: c, 7: Inst come: c: 27: Blow 357, Dier foe: 72: n: 3:  of three years, in Case of Lands and Tenements held, gotten by forcbile Entry, and held so long in quiet possession, 
m 8: H: 6: c: 9:  of a year and a day for a villain, to assent his liberty against his Lord, if he have continued so long in ancient Demesne, or in any of the King's Cities, or Towns, without being claimed o● molested, 
n Flet: l, 2, c, 51 F, n, b, fo: 77:  as also for the Confirmation o● any Deed made by one who is in Prison, unless he who made it do in the interim revoke it, 
o Li●: l: 3: c: 7: Brac: l, 4, tr, 1, c, 2. n, 7, Brit, c, 42 Blow, f: 357, and 372: new Terms ver: non: claim:  so also for the hindering the Entry of him who having omitted continual claim in case of his being unjustly disseised of those Lands and Tenements if he shall endeavour to recover them so coming by the right of Succession, to the Heir of the Disseisor. 
p Brit: c: 34 Perk: grants, 29   
10. No prescription of time shall prejudice the Supreme Power; 
q Id, c, 34, Brabant: l: 2, c, 5, n, 7,  nor any Lord, but that he may challenge the perquisite of his villain. 
r Brac: ib,   
11. Nor is there a Prescription in all things: as for example, not in those which are not subject to commerce nor in those of which the Crown is properly sole Lord 
s Lit: l, 2, c, 11,  nor where the use is repugnant to reason and good manners, 
t Id, ib: Brac, tr,  nor in case where an alienation cannot be made without an instrument, 
u Brac, l: 2, c 19 n 4, 1, c: 38▪, n 13  and it is agreed amongst some of what things a prescription cannot be, and received general with us that no prescription in Lands maketh a right. 
w Dr. Stu. l. 1. c. 8.   
12. Nor can a prescription be of those pertinencies whose principles have not a perpetual and durable continuance, 
x Dier. fo. 70. n. 40.  or of those things whereof no one can tell what he or his Ancestors particularly, whose Estate he hath, did possess. 
y Id. foe 71. n. 42▪  And lastly a Prescription is of no validity against a Statute afterwards made. 
z Id. of. 373. n. 13.   
13. It was much controverted among the Ancients, how long after one might bring his Writ of Right, after the title or Right to Lands or Tenements, etc. have lain dormant, or his Assize or Writ of entry to gain a possession as it were lost by him to whom it appertained, 
a Thaleat. Digest. br. l. 10. c. 21.  but this whole Controversy is composed by the prudence of Parliament, which hath provided and fitted apt remedies for the difference in each case. 
b 32. H. 8. c. 2. Coo. l. 4. Bevils' Case foe. 10. ●.    

Of Gifts.  
TIT. VII.  
THere are many ways of Acquisition by the civil Law, viz. By way of Gift, succession, Testament, and others as shall appear hereafter, 
a Bract. l. 2. c. 4. Flet. l. 3. c. 2.  but in regard, that amongst all the other causes, the most great, known and famous is that of Donation or gift, therefore it doth worthily challenge the first place, for that by it, there is a more great and frequent acquisition then any other. 
b Brac. cod. c. 5. n. 2. Brit. c. 34.   
1. Donation is a certain institution which proceeding out of mere Courtesy and will without any coercive or compulsive Law or Right transfers a thing unto another. And (to give) is to render a thing his that receivs it effectually, otherwise that Donation or Giving were useless, which could be revoked and made void. 
c Bract. eod. n. 2. Brit. ib. Flet. l. 3.   
2. Our Authors do frequently call a Donation a Feoffment, but the word Donation hath a greater latitude; for that it doth not only comprehend a free alienation of immovables, but of some moveables also, 
d Bract. l. 2. c. 26.  yet in Lands, these appellations are distinguished thus. A Feoffment is of a Fee simple to the Donee or Feoffee, and a Donation or Gift is of an Estate tail. 
e Lit. l. 1. c. 6.   
3. Donation in the largest signification, is thus divided, viz. That it is either amongst those who are still living, or upon occasion of Death. Of which we shall speak hereafter. 
f Brac. l. 2, c. 5. Flet. l. 2. c. 57  Of gifts some are simple and pure; as namely, those which proceed, no Law or right, either civil or natural enforcing, no Reward, Fear, or Force interveneing, from the mere free bounty of the Donor, and where the Donor will not in any case that the thing given should revert to him; 
g Brac. l. 2. c. 5. n. 3. and l. 2. c. 10. Flet. l. 3. c. 3. and c. 8  another is from a future Cause, namely where any cause is interposed for which a thing shall or shall not be, 
h Dier foe 33. n. 34.  under which kind, fall gifts by reason of Marririage, Dower, 
i Glan. l. 7. c. 1. and c. 18. Bract. l. 2. c. 7. Flet. l. 3. c. 9  or Death, etc. As if one gives any thing with such an intention that it shall be the Donees when a subsequent thing is performed. And these kind of Gifts are not properly Donations when they are conditional, 
k Bract. ib. Bri. c. 34. F. N. B. f. 205. h. Flet. l. 3. c. 11.  but Donation is sometimes with relation to a cause past, 
l Brit. c. 35. lit. c. 5. fo. 76  and sometime, with relation both to past and future causes, 
m Plowden foe 455 n Bract. l. 2. c. 5.  and some Donations are free and pure, some under conditions and suspended, 
n 3. Brit. c. 35. F. N. B. foe 205. d. Blow. fo. 30. and. 32.  some absolute and large, some strict and limited to certain Heirs, and some excluding Succession. 
o Bract. l. 2. c. 7. Brit. c. 35. Doct. Stu. l. 1. c. 24. l. 2. c. 6. Lit. l. 1. c. 23. Flet. l. 3. c. 3.  So also some Donations are by writing, some without. 
p Dr. Stu. l. 1. c. 16. Bract. l. 2. c. 16. Brit. c. 39 Flet. l. 3. c. 9   
4. Wherefore we are to see who can give and who not, and it is generally to be understood, that every one, who by Law and Right are not prohibited, may give, 
r Bract. cod. n. 4. Flet. l. 3. c. 3.  now all those are prohibited, who have not a general and free administration of what they have, as Wards who are under tuition and pupillage, not being able to govern themselves, yet they may receive and render their condition better, but they cannot give either with or without the authority of their Guardians: So neither one that is deaf and wholly deprived of his hearing, but it is otherwise if he can hear, though with much difficulty, the same is also to be understood of one that is dumb and cannot speak. Yet (according to the opinion of some) they may consent by signs & nods, but it is generally held that he who is dumb can not make a gift, because he cannot consent to it; so neither can a mad man work that is not Compos mentis, unless he enjoy any Lucida intervalla, 
s Id. eod. Brit. c. 34.  but the Church executes in the stead of a Ward. 
t Bract. eod. Brit. c. 54. Flet. l. 3. c. 3.   
5. He cannot make a gift who is a Captive so long as he is in the custody and under the power of his Enemies, because he cannot possess who is possst by others; not make a Gift effectually, seeing he possesseth nothing, 
u Bract. l. 2. c. 8 n. 4. Dr. St. l. 2. c. 43.  the same also for the very same reason, may be said of a Servant; for that he possesseth nothing so long as himself is in the possession of others, 
w Bract. l. 2. c. 16.  yet it seems he may give any such thing, whereof his Lord hath not as yet taken possession or Scisin. 
x Lit. c. Vall.   
6. Formerly a Leper could not make a Gift, as being put out of the society of men, 
y Bract. l. 2. c. 5. Brit. c. 34.  nor hath a Bastard any Heirs to whom he may give effectually under that notion, unless it be those who are lawfully begotten of his own Body. 
z Bract. and Brit. ib. Perk. tit. Grant. 48.   
7. He that is attainted of Treason, or convicted of any other capital offence, cannot make a gift after the Felony committed; if so be he be afterwards judicially convict and condemned by sentence, 
a Bract. l. 2. c. 13. Brit. c. 34 Stanf. Pla. co. l. 3. c. 32. Flet. l. 3. c, 7. and l. 3. c. 10. Fulbeck. Signories f. 26. Perkins Grants 29.  yet in some cases he may before conviction make a gift of Chattels. 
b Vid. next Chapter.   
8. Nor can any one give who hath not Seisin of the thing given: except the King only, 
c Dyer foe 108. n. 28. 29. 30.  which according to the ancients is true also, notwithstanding that he have Dominion and receives Services. 
d Eract. c. 5. Spec. Just. l. 2. c. de contracts Flet. l. 5. c. 15.   
9 Nor are gifts made between man and wife worth any thing, for a man cannot give to his wife, nor e converso, during coverture: Because such gifts between such persons are prohibited. But if they be made before marriage, or after Divorce, they are valid, provided they be not upon the score of subsequent marriage; yet a man may by his last Will and Testament, give a Fee simple to his wife, and the reason of the difference is; because a will is not of force before the death of the Testator, 
e Lit. l. 2. c. 10. lib. Assis. pla. 60  and then the Husband and wife cease to be one and the same person. 
f Bro. devise 34   
10. Nor can any man effectually give that which is another's; 
g Bract. l. 2. c. 24. Blow. fol. 528.  nor can one who is beyond Sea according to some, 
h Glan. l. 7. c. 1  make a gift, but others maintain the contrary, which is the better opinion. 
i Bract. c. 5. n. 8  The wife cannot make a gift without the Husband, nor can the Husband without the wife of such lands as are the Wives. 
k Brit. c. 34. F. n. b. f. 163. A. B. C. D.   
11. Moreover the Statutes of this Commonwealth have set such bounds to Donations and Gifts that they permit not any man to make gifts to the defrauding of his creditors, beyond his limits. 
l 13 Eliz. c. 5. & 27 Eliz. c. 4   
12. There are also some who cannot make Gifts without the consent of others, as Arch-Bishopps Bishops, Abbots, and Priors, Cannot give Lands without the consent of the King, or some other of their Lords. Because the consent of all them whom the thing may any way concern is necessary and requisite, 
m Bract. d. c. 5. n. 7. Brit. d. c. 34. F. n. b. fol. 194. & 195.  whence it is that they who hold of the King cannot make a gift of their Lands, without his consent, 
n Flet. l. 3. c. 3.  nor can the Parsons of Churches because they hold nothing but in right of the Church. Wherefore they cannot make a Gift, alienation, or change, without the consent of the Bishop and Patron, unless it be so that the condition of the Church be bettered thereby: Yet these want not some who affirm them uncapable of doing that without the aforesaid consent. 
o Bract. l. 2. c. 11. Flet. l. 3. c. 4   
13. All are capable of receiving Donations, unless prohibited by any express Law or custom, nor only single persons but eve● many together, 
p Bract. l. 2. c. 5. n. 6. etc. 11 Brit. d. c. 34.  now these are Femes Coverts incapable to receive the Gift of their Husbands or otherwise, during coverture, 
q Mag. Ch. c. 36, Fl. l. 3. c. 5.  Religious persons, 
r 7 E. 1. c. 2. & 34 E. 1. c. 4. 18. E. 3. Sta. 3. c. 3.  all ecclesiastics in the name and right of their Church, 
s 15. R. 2. c. 5. F. N. B. foe 221. Q.  Bodies politic, 
t 15. ●. 2. c. 5.  for those Immovables which are without lawful permission given to bodies politic, are forfeited sometimes to the King, and sometimes to the next chief Lord 
u Bract. l. 2. c. 5. n. 6.  so neither can Jew's 
w Brac. ib.  nor any who are not under the Allegiance of the Supremacy, 
x Bract. l. 5. tr. 5, c. 25. Flet. l. 6. c. 48. Dier foe 224. n. 29.  but in regard the thing taken, is also received, the acquisition is not to themselves, but to the King as we have said, nor finally can persons uncertain, as the Heirs of one that is living. 
y Perk. grants. 52. Plow. 345.  Or the firstborn of any one who at the time of the gift hath not Children, 
z Perk. ib. n. 54. Dier foe 274. n. 43.  but a possession to A. the remainder to his Heirs, though uncertain is good, 
a Coo. l. 1. Ar●bors Case, f. 66.  he also who is wholly unfit and unable to execute an office in any of the Courts of Justice is uncapable of receiving the said Office. 
b Dyer, fol. 151. n. 1.   
14. Now all things whatsoever may be given, save those things which can no way be possessed, those are things sacred and Religious, or as it were, Sacred; and those are a Freeman, and that which appertains to the King's Treasury, which make the very Crown, and belong to the Public profit. 
c Brac. l. 2. c. 5. n. 8. 13, 14. Brit. d c. 34. Flet. l. 3. c. 6.  To which also some add the Walls and Gates of Cities: 
d Flet. ib.  But at this day there scarce seems to be any liberty appertaining to the Crown or Prerogative in the Supremacy, which may not by Charter be granted to a Subject. 
e Kitch. fol. 30. b.   
15. I cannot give the Right which I have in a thing which is in the possession of another to a third person: Yet I may ●emit it, or [as we say] release it to the Possessor by my writing: 
f Perk. ib. 85, 86.  Nor can any one give an action which he hath to any thing, as we have said before 
g Sup. cod.  except the King, 
h Dyer, fol. 30. n. 208.  or to the K. 
i Bro. chose in Action, 4.  yet one may give it to the party obliged. 
k Perk. ib. 85, 86.  A man cannot give the reversion of an Office Eo Nomine, nor can any but the King give, under the name of the Office. 
l Dier, fol. 259. n. 18.   
16. Now that a Donation may be valid, there are other things required: It ought to be free and not compulsatory, nor extorted by force or fear. 
m Brac. l. 2. c. 5. n. 8. 13. Brit. d. c. 34.  There ought also to be certainty in a Gift, for that there can be no Donation of a thing uncertain, unless it may be some means be reduced to Certainty. 
n Perk. ib. 81, 86. Blow. fol. 6, 7. 12, 13.  There ought also certain words to intervene to a congruous Gift, 
o Brac. ib. n. 12.  as to a Bargain, 
p Id. ib. Dier, foe 71. n. 10, 11  and that there be a joint consent as well of the Donee as of the Donor, 
q Brac. ib. n. 12. Dr. Stu. l. 2. c. 33.  And that there may be no Error in the thing given, 
r Brac. l. 2. c. 5. n. 12. Flet. l. 3. c. 7.  nor fraud, 
s Id. ib.  not prejudice to a third person. 
t 13. Eliz. c. 9  Yet a false or pretended cause adjoined to a Gift, doth not vitiate or injure it. 
u Flet. l. 3. c. 6.   
17. And here also there ariseth a difference amongst Donations, for that some may be by word, some not without Writing or Deed [as we commonly speak] 
w Brac. l. 2. c. 5. n. 3.  all Chattels for the most part, either real or personal may be given by word, 
x Per. grants, 7.  unless they be given by a Body politic, whose Seal i● necessary in every Alienation. 
y Id. ●od. 64.  If any one in Knight's service be Guardian of Body and Lands, he may grant the Custody of the Lands or the profits by word only, which some affirm also as to the body or person of the Heir, 
z Id. ib. 60.  though it be denied by others for this reason; That the transferring of the Body doth not consist properly in the delivering possession. 
a Id. ib.  No man can grant Lands which one hath in possession, to another, either for life or for ever, without a Writing, but for years he may. 
b Id. eod. 61.  Corn which is but growing may be granted by a Nude parol● and that by Tenant in Tail, although he die before the Do●ee hath severed it from the land 
c Id. eod. 57  which notwithstanding is otherwise in fruits of Trees growing upon the Land. 
d Id. eod. 59  And the reason of the differenceit may be, is, because Corn cannot grow without the industry of man, but trees by nature: but Tenant in Fee-simple may give even such Trees by his word only, 
e Id. eod. 58.  because he hath a larger power than Tenant in Taile. And lastly, Lands and Tenements may be given amongst those who are living by word only: 
f Id. cod. 62.  But in case of Death, not without a Will in writing. 
g Seetit. of wills, etc.   
18. Incorporal Rights are hardly given without Deeds (as we call them) such as yearly Rents, 
h Dier, fol. 139. n. 57 Dr. Stu. l 2. c. 16. fol. 80.  Common of Pasture, an Advowson, villain in gross, or the reversion of Lands after the death of the present Possessor: 
i Perk. gr. 61 Blow. fol. 150.  Of which nature also are Tithes according to the opinion of some, 
k Perk. ib. 62. Plow. 233.  but a Rectory with its Tithes may: 
l Bro lease, fol. 15. 20.  to which may be added the Right of Guard and Marriage. 
m Dier, fol. 370. n. 57   
19 If a Gift be in all things complete, it ought to be confirmed by Livery, or something parallel. 
n Brac. l. 2. c. 5. n. 12. 17, 18. Inst. come. c. 21. Lit. l. 1. c. 7. Flet. l. 3. c. 2. & 9 Dier, f. 49. & fol. 91.  Now how Livery and Seifin is to be, we have spoken elsewhere.  
20. There are three kinds or species of Donations in case of Death: One which is made merely upon the thoughts of Death, when there is no fear or danger of Death ●igh. Another, when the party being moved with the imminent fear of present Death, so gives, that the Gift immediately becomes the Donees. The third, when one being pricked with the danger, giveth out so, that the gift is forthwith the Donees, but after his deceale. 
o Brac. l. 2. c. 26. Flet. l. 2. c. 57    

What persons may alienate, and what not.  
TIT. VIII.  
THis Chapter is so near the other, that we must necessarily repeat many things which we mentioned there. But the word ●●lienating being more general than giving those things which we shall set down he● have a more universal use.  
It happens sometimes that he that is O●ner of an Estate cannot alienate it. The King cannot alienate the ancient Mann●● annexed to the Crown, but every King is obliged to revoke the alienations of the Cro●●▪ Nor will an Obligation to warranty hinder▪ unless it were upon Exchange: Or otherwise for the value in Fee, or service: O●●●least, unless they were granted for the Commodity and Honour of the King, as the Baronies of Bishops, 
a Flet. l. 1. c. 8. & 17.  etc. But this Right 〈◊〉 now almost wholly worn out, either by the munificency of our Kings, or by the 〈◊〉 much negligency of our Commonwealth: And therefore King James did worthily study a wholesome remedy for so pernicious 〈◊〉 mischief.  
1. Nor can a Husband so alienate the Inheritance or Jointure of his Wife, but tha● 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 Capit●, either by Knight's service or Socage, cannot without punishment alienate their Lands without licence▪ 
c Id. foe 175. A Bro. ali●nat. & tenors, 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. foe 192. g. Perk. 3. Grants. 15. ●9.  Madman, 
f F. N. B. foe 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 he be the King's 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 politic, whether Ecclesiastical or Secular, 
m 7. E. 1. 18. E. 3. c. 3. 15. R. 2. c. 5. F. N. B. fol. 221. Q.  without obtaining the King's licence for alienating it in Mortmain. And on the other side, Religious Colleges which were founded by the Kings of England, are prohibited to alienate their Lands without the King's Licence 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 pawn, or mortgage, although the thing be not his: As if it be agreed in the beginning, that it shall be lawful for the Creditor to sell the Pawn 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 book 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 do it but after a certain form or manner: for the King can neither purchase nor alienate without that special method of Entering, which we call Record. 
q Plow. 553.    

By what person we may make acquisition or gain to ourselves.  
TIT. IX.  
NOw we are to know by what persons we may purchase or gain to ourselves: And know that we may legally by ourselves, our Wives, our Servants, Male or Female, by Sons or Daughters which are under our protection, by Freemen 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 etc. 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. etc. 15. & l. 4. c. 11. etc. 12.  who are not under our power, as well as by those who are, provided they be not under another's, 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 another's as ones own, which we do bona fide possess, 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. etc. 15.  And the same is to be understood of those who are naturally deaf 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. ●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 ●. Testament.  And it is double, Viz. Proper, or Improper. That which is properly so called, is that last Decree of a man, in which he names his Executor. 
c Brc. Test. 20.  And he is in the place of him whom the Romans called Haeres, & is as the Basis of the Testament, 
d Swim. par. fo. 1. Sect. 3. n, 19  representing the state of the Testator: That which is improperly called a Testament, is any other las● will, whether a Codicel or Donation by occasion of Death or Letter. 
e Vali●ius, in come. sup. Instit. tit. de Testam. ord. pri. n. 9, 10, 11.  And either of these may be twofold, 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. Baker's case, foe. 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 Custom of England oblige so much as the Decretal; for with us it is sufficient to pronounce a will before two Freemen, whether Clergy or Lay: 
i Brac. l. 1. c. 16. n. 2. Glan. l. 7. c. 6. Dier, foe 52. n. 13.  Yet our Sages do, for very good reason, persuade men not to be too secure or negligent in the making of Wills. 
k Coo. l: 3: case Butler & Back: fol: 36:   
2. Nay so irksome doth that Curiosity of the Ancients seem unto us, that we esteem every probation of a Will equal, which is consonant with that original simplicity of Jus Gen●um. 
l Swinb: part 4: sect: 25:  Nor are there two Witnesses necessarily required, if there be other circumstances to supply. 
m Brit: 28: fo: 7: 7: a:   
3. In the admitting or rejecting Witnesses, we do not much differ from the Civil Law. For as the Heir there, so the Executor with us cannot be a Witness, yet a woman is not admitted. 
n Swim. part 4 Sect. 21.  Nor is it so essentially necessary that Witnesses should be interrogated in their giving testimony, unless they be such as are capable of being removed by other exceptions. 
o Id. part, 1. Sect. 10.   
4. Although Wills take their force from the Will of the Testator chief: 
p Perk. 555. Plo. 412, 413.  Yet an Executor cannot have his Action against the Debtors of the Testator before he hath entered the Will, and procured an Authority for it from an Eccelesiastical Judg. 
q Perk. 482, 484, 486, Br●. Execut. 49, 19, 139.  And although some will not grant this to be of ancient custom, 
r Bro. Testam. in fine.  yet the contrary is most evident. 
s Glan. l, 7, c, 7 Brac. l, 2, c, 26. n, 2. Plo. 280. Flet. l, 2, c, 57   
5. But when an Executor comes to a Judge to publish a Will, he shall upon Oath assert, That he doth believe that Testament which he exhibites to be the true and last Will of the Party deceased, and that at a time limited by the Judge [unless he be then prepared] he will make: and render a true and faithful Inventory of all and singular the Goods which the Testator had at his Death: And that he will pay Debts and Legacies, and render a just account of the execution of his Executor-ship, whensoever he shall by the Judge be required thereunto: 
t Lym. prov. de testat. c. stat. bone memor.  and this finished, he becomes the same person with the Testator. 
u 9 E. 3. c. 3.  Nor doth he only challenge all things which were the Testators, but renders himself also liable to his Debts according to the value of the Estate received. 
w 13, E. 1. c. 35. Dier, fol. 187. n. 6.   
6. If there be many Executors named, they may all if they please undertake the Office; but if one only be willing, he may do it. 
x Perk. 486.   
7. But if any one dyeth, having made a Will, and yet not named any Executor, o● otherwise altogether intestate, the proper care belongs to the Ecclesiastical Judge; for that he is liable to all the Debts of the party deceased, as fare as the value of the Goods will extend, 
y 13. E. 1. St. 2. c. 17. 21. H. 8. c. 3. Brac. l. 2. c. 26. n. 2. Glan. l. 7. c. 6. Dyer, f. 232. n. 5. & 171. n. 26. F. N. ●. fol. 120. D.  and is obliged to commit the Administration of the Goods to the Widow, or next of Kinne, or at least to such a Party as will undertake it, and put in good security both to Administer faithfully, and to preserve the Ordinary harmless. 
z 31. E. 3. c. 11.  And here also he is to make Oath [as fare as he knows or believes] that the Party deceased died, exhibiting a Will, in which there is not any Executor named, or whose Executor named refuseth to undertake the Office: Or [if the case require it] that he died wholly intestate: And further, that he will make and exhibit a just and fatihfull Inventory: That he will according to the value of the Goods he shall receive, pay the Debts of the party dead: And the portions also if there shall be any overplus assigned by the Judge to the Children of the Party deceased [if he have any left or to the residue of his Kindred. And lastly, that he will render a just account of his Office when the Judge shall require it: which being finished, he obligeth himself with good security to a due Administration of the Goods, and is at length made Administrator, 
a Dyer, foe 294. n. 7. & fo. 339. n. 46.  when he receives letters of Administration under the Authentic Seal of the Ordinary.  
8. But here it is questioned what is to be done in case no one will be Executor or Administrator? And in this case the Judge ought to sequester the Goods of the deceased: and calling the Creditors together by his command, give them satisfaction as the Law prescribes. 
b Perk. 483. Bro. Testa. 20. & Execut. 90. & 117. Fle. l. 2. c. 62. Dyer, fol. 232. n. 5. & fol. 256. n. 8. & fol. 160. n. 42. Plo. fol. 277.   
9 But who is competent Judge in this case? truly the Bishop of the Diocese where the Party died is Regularly. Yet there are others, as well Lay, as Clergymen, who have the prescription of this privilege or liberty [as we call it] or else a grant of it be by ancient Charter, 
c Perk. 486. Dr. Stu. l. 2. c. 28. Swim. de test. part 6. Sec. 11.  I say regularly, because it is true, in case the Party deceased have not an Estate, or Goods in sundry Diocesles; 
d Swim. ib.  for if so, than the probation and publication belongs to the Archbishop of Canterbury or York [if it be in the Province of York] by Prerogative. 
e Lym. provin. Statut. de testa. Perk. 489.   
10. When we affirm the Bishop of the Diocese competent Judge, we intent the same also of his officials, whether he be Vicar general, or Commissary, 
f Bro. Testam. 12.  or Archdeacon, who by prescription or composition claims this power. 
g Id. ib. 25. Perk. 492, 493    

Of the Military Testament.  
TIT. XI.  
OUr Law doth not permit any privilege to that Testamentum Militare, which no Pagan Law denyeth to last Wills: 
a Swim. part 1. Sect. 19, & part 4, Sect. 17, 18.  For that all those Roman subtleties are dissolved into the ancient Law of Nations.   

Who they are that may make a Will.  
TIT. XII.  
SOme there are who by our Law are absolutely prohibited to make a Will, and some who are prohibited as to certain things only.  
1. An Infant is absolutely forbidden, but in this case Infant is taken doubly, viz. A male under fourteen, and a female under twelve years of age. Otherwise under twenty one for both sexes; those of the former rank cannot make a will at all, 
a Swim. part 2. Sect. 2. Perk. 503.  these of the later may of Chattels but not of Lands in Fee, 
b 34. H. 8. c. 5. Dr. & Stu. l. 1. c. 12.  unless any particular custom of a particular place permits it. 
c Perk. 504.   
2. An Idiot, 
d 34. H. 8. c. 5.  viz. Such a one who cannot give a reasonable answer to any ordinary and easy question, 
e Swim. patt.. 2. Sect. 4.  also a Servant for the same reason by which he is forbid to give, whilst living, 
f Sup. title Donation S. 5.  can dispose of nothing by his last will, whose possession is seized on by his Lord, 
g Perk. 29. Dr. and Stu. l. 2. c. 43.  or claimed by word only, 
h Bre. Villain 50  unless in case that he be Executor to another, in which case, he may constitute another his Eextutor, even against the will of his Lord, for that the goods which are contingent to this Office, are not his to his own use but to another's, 
i Id. ib. 68 73.  so also a Captive, because himself possesseth nothing, but is in the possession of another, 
k Brac. l. 2. c. 16. n. 5.  which is true likewise in those whom we called Outlawed. 
l Id. l. 3. tr. c. 13. Dr. and Stu. l. 1. c. 6. and l, 2. c. 9   
3. Moreover, he that is guilty of Treason, hath not a power to make a will: Because if he be afterwards convict of that Crime, he forfeits what ever he possessed at the time of the Treason committed, to the King and the Exchequer, 
m 5. E. 6. c, 11. Swn. par. 2. Sect. 12. 1. R. 3. c. 3.  nor he that is guilty of Felony: but here we must distinguish, for if such a one die before conviction, he may by his Will bequeath both his Lands and Chattels, or if he be obstinate before the Tribunal, and refuse to put himself upon the Trial of God and his Country, according to the Custom of the Commonwealth, or shall stand mute, for in this case if he die intestate he reserus his Lands entire to his next Heir or if testate he may dispose of them to whom he please, and forfeits his Chattels only: Moreover, if he be Convict he looseth his Lands from the time of the fact committed; but his Chattels only from the time of his Conviction, so that before Conviction he may give them or alienate them at pleasure, 
n Swim. par. 2. S. 17. Bro. Forfeitures 5. 28. 65. 89. 103. 113. 117.   
4: He that murders himself, is by us termed Felo de se, and hath no other Successor, as to his Chattels, but the Exchequer, 
o Bract. l. 3. tr. 2. c. 31.  yet it is much doubted at this day whether he forfeits his Lands or not, 
p Stan. pl. cor. l. 1. c. 3.  but that his Chattels come into the Exchequer is out of question. 
q See tit. Mur.   
5. An Heretic by our ancient Law could not make a will, 
r 2. H. 5. c. 7.  but that Law is now abrogated, 
s 1. E. 6. c. 12.  so that here we have nothing certain but what we receive from the Canon Law.  
6 A notorious Usurer, if he exact above ten pound Per cent. per an. is liable to all the punishments which the Canon Law inflicts, 
t 13. Eliz. c. 8.  and therefore seems incapable of making a Will. 
u Swim. par. 2. S. 16.   
7 Feme Covert is absolutely prohibited to dispose of Lands of Inheritance by her last will, 
w 34. H. 8. c. 5.  or of Goods or Chattels, without the licence of her Husband, 
x Swim. par. 2. S. 9 Bract. l. 2. c. 26. n▪ 1. Cou. Ognels case. 51  unless she were an Executrix of a former Husband or of any other person before she entermarried with this Husband, or hath any title to any sum of Money as yet unpaid, for in these cases she may dispose of the Goods by will, which he hath by reason of that Office, or by right of Action: and constitute either her Husband or any one else, her Executor, 
y Bro. Testa. 9 11. 13. and. Execut. 132. 175. 178. Glan. l. 7. c. 5. Perk. 502.  but if we believe Bracton, it was an opinion that a Wife might make a will, and dispose of her reasonable part, which she should have had, if she had survived her Husband, and especially of such things as were permitted or given her for Ornament, which they called her own, as Robes and Jewels, 
z l. 2. c. 26. n. 1. F. N. B. foe 122. Flet. l. 2▪ c. 57  but this Law was either customary in some particular place, or else it is long since vanished:  
8 Lastly, they which enter into Religion cannot make a will, for to those Goods which they dispose not of before entrance, their next of Kin succeeds, as if they had died intestate, 
a Bro. Testam. 9  but it is otherwise of Ecclesiastic Seculers, whose Goods are by the cust●●e of England, reputed lay; whether they be acquired from the Church or otherwise, 
b Dr. and. Stu. l. 1. c. 39  so also is Corn growing upon glebe Land and not yet gathered. 
c 28. H. 8. c. 11.   
9 The King however in a capacity to make a will, cannot by his Testament dispose of his Kingdom or the Goods of his Kingdom, viz. his Crown or Regalia to another. 
d Fitz. Abridg. devise 5. and Execut. 108. Swim. p. 2. Sect. 28.   
10. A Bishop or Abbot, in regard their Baronies were of the Alms and Charity of the King and his Predecessors, cannot alienate any part of their Demesnes, as to the Remainder, without the Assent and confirmation of the King. 
e Glan. l. 7. c. 1.   
11. So also a Bishop, Dean, or Master of any Society is prohibited to make a will of any of those Goods which they held in common with the Chapter and Society, 
f Dr. and Stu. l. 2. c. 39 Bract. l. 2. c. 14. Perk. 469. 497. 499.    

Of the Disinheriting of Children.  
TIT. XIII.  
OUr Law remits that positive disinheriting of Children, to which the Roman Laws obliged their Citizens, to the affection of Parents, which it presumes, nature to have engraven so firmly in the minds of all, that it is not possible to be rooted out but by the extreme debeauchery of Children. Wherhfore every one hath a free power of disposing of his goods, whether moveables or immovables: And those whether purchased or descending from Ancestors certain, unless it be of Fee-tail; for that cannot be disposed of but where the Entail is cut off by fine and recovery. 
a 4. H. 7. c. 24. 32. H. 8. c. ●. Plow. 356, etc. & Coo. l, 3. case of Fines.   
1. Yet the ancient Writers of our Law do scarce hold it lawful for a man to bequeath by his Will an Inheritance received from his Ancestors to any one but the next Heir, under which notion they will lay the burden of the Father's debts upon the Heir. 
b Glan. l. 6. c. 17. & 18. & l. 7. c. 1. Brac. l. 2. c. 36. n. 1. & ●rit. c. 34.  But our later times have provided a sufficient remedy for this: 
c 3●. H. ●. c. 1.  And therefore the Heir is not at this day liable to the debts of his Ancestor, unless he be specially mentioned in the Instrument of Contract, and have an Estate sufficient descending.  
2. Bracton 
d L. 2. c. 26. n. 1. Glan. l. 7. c. 8. Blow. fol. 418.  makes this distribution of Chattels, Viz. That Debts being paid, the overplus should be divided into three parts, whereof one to be left to the Children, the other to to the Wife, and the third at the will and pleasure of the Testator. And if there be no Children, than one half to the liberty of the Testator, and the other to the Wife: And if there be no Wife, than one moiety to the Children, and the other as the Testator shall please.  
But this rather seems to be Counsel then Law; for a little after in the same place he saith, That neither the Wife nor Children ought to take more of the Goods of the Father or Husband deceased, than what is particularly bequeathed unto them, except it be upon some special grace, as having merited extraordinarily of him in his life time. And he gives this reason, namely, because there would scarce be found any one who would endeavour to lay up much, if he should be compelled at his death to leave it to illiterate or debauched children, or to an ill wife. And therefore it is very necessary, that in this they should have a free power; for by this they prevent vice, and encourage virtue, and give occasion both to Wife and Children of well doing: which could not be, if they knew undoubtedly, that they should have a certain portion whether the Testator will or not.   

Of the instituting of Heirs.  
TIT. XIV.  
THe civilians and we have a different acceptation of the word Heir; for they call him an Heir whom the Testator nominates in his Will: 
a Inst. de Testam. ordinand.  And we him, who is next of Kin to the party deceased, to whom a Fee doth of right belong, after the death of the Ancestor. 
b Glan. l. 7 c. 1. Brac. l. 2. c. 33. ●. 3. Brit. c. 118, 119.  So that we affirm it is not man, but God, who makes Heirs: 
c Glan. & Brit. ib.  And that Here's comes from Hereditate, where succession is by right of Blood. 
d Brit. ib.  Nor do we call all the Estate of the party deceased, his Inheritance, but only his Fee, or at lest those Lands & tenements, with all things corporal and incorporal, which the Party deceased, held by a perpetual Right. 
e jidem ib.  Wherhfore it was necessity which in some sort constituted an Heir: who, as he was wont to succeed his Ancestor in the premises, even against his will, so was he obliged to pay his Debts, if he had Assets sufficient, and the Chattels did not suffice, 
f Glan. l. 7. c. 7. Brac. l. 2. c. 26. n. 1.  as we have in part declared before.  
1. Wherhfore an Heir with us doth not succeed to the universal Right of the Party deceased, but to the Fee assigned only; for as to the disposing of Chattels, men nominate their Executors according to their pleasure 
g Glan. l. 7. ●. 6 Brac. ib. Dr. Stu: l: 2: c: 10:  who as to that part of the Patrimony, supply the place of an Heir, and represent the person of the Testator, if at least they accept the Office, 
h Bro: Executors, 5: 21, 22: 57: 77: 84: 122:  so that they may convert all those goods which are not bequeathed to their own use, 
i Blow: 943:  and take even the  of the widow, if they are more rich and sumptuous than the condition of the Husband would bear. 
k Bro. ib: 19:   
An Executor may also be ordained either absosolutely or upon Condition, 
l Id. ib: 9: & administrat: 1: & 45:  and either from a certain time, or after a certain time, 
m Bro: Exec: 155:  and either universally, or particularly, 
n Id: ib: 2, and 155: L: Dier foe: 3, 4, n: 7, 8:  and in the first degree, or by Substitution, 
o Id: ibid.  and either one or more. 
p Id: ibid.: 13: 24 38: 117:   
3. And those may be Executors, whom the Testator shall constitute, whether they be strangers or Parents, of Kin, or not of Kin, 
q Brac: l: 2: c: 26: n: 2:  and not only those who are free, but Servants also, and those whether our own or of others; 
r Lit: l: 2: c: 11: Bro: villains 68  nor only Laymen, but even of the Clergy also, and Religious, 
s Bro: ib: 68: 77  if they have the permission of their Superiors, 
t Fitz. abrid: Execut, 47:  so also may women, 
u Bro. Execut: throughout  and Infants, 
w Id: ib: 15:  and in fine, all who are not expressly forbidden by the Law. 
x Glan: l: 7, c, 6, 4,   
4. Not that any one is against his will forced upon this office, but that he that will may refuse, and he who hath once refused, may notwithstanding afterwards undertake it, 
z Bro: ib: 38. 117 Perk: 4: 85.  though according to the opinion of some, he cannot during the life of his Co-Executor, 
a Dier, foe 160: n: 42.  but being once undertaken it cannot be laid down again, and the undertaking of it seems to be, when he doth under that name intermeddle with any of the Goods of the Testator. 
b Id. f. 166. n. 10. 11.   
If an Executor die before the Will proved, than Administration of the Goods shall be granted by the ordinary to the widow, or next Kinsman of the Testator, who shall be obliged to dispose of the goods of the Testator, according to the Will, unless the Remainder of the Goods after the payment of Debts and Legacies were bequeathed unto him; for in this Case, the Executors of that Executor may justly challenge Administration which the Will annexed. 
c Id. foe 172 n. 8.    

Of the ordinary Substitution.  
TIT. XV.  
Substitution is of no small use with us, though we do for the most part in this, follow the Precepts and Rules of the Civil Law, yet we cannot so freely dispose of those fees which we hold by Knight's Service by our Testaments, but that we are obliged to leave a third part to the heir 
a 32. H. 8. c. 1. Glan. l. 7. c. 7  but for those which we hold in Soccage not entailed, 
b Brac. l. 2: c. 30.  or tied by any particular Custom, 
c Glan. ib.  we may bequeath them to whom we will, whether to a Kinsman or stranger, 
d 32 H. 8. c. 1.  provided we hold no other Lands in Capite by Knight's Service: and in each of these Cases we may make Substitution, either vulgariter (as they term it) or Pupillariter. Now this Substitution is nothing else, than the adding of a Condition, which we commonly call Tail; namely a limitation of Heirs, to whom we intent to have the Lands descend from the Testator, or remain, or otherwise revert to us, and our Heirs.  
1. Yet is not this Substitution the same with that of the Romans, because that had this Condition annexed, viz. I ordain A. mine Heir, and if he will not be Heir, than my will is, that B. shall be my Heir. 
e Inflit. eod.  now this of ours i● not bound, but is rather tacitly 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, than 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 Country, as the liberty of t●e Testator, so that a Legate o● may make a Substitution Pupillary, either to his own chidrens or to strangers, Legatees who are under age: As I give to A. (my own child or another's) 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 Ecclesiastical Courts, and by the Rules of the Civil and Pontificial Law: 
a Bra. l. 2. c. 26 n 2.  therefore our Law, hath as it were, passed by for the most part, this and other things of the same nature, and leaveth them to be determined by the Civil and Pontificial Law.   

How Wills are invalidated.  
TIT. XVII.  
Wills 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 foe 47.  or invalidated by Treason, etc. 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 speechless: 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 year, in this Case, that will which he returned shall be esteemed the later. 
d Perk. 479   
2. And it happens sometimes, that a man's will, which according to the Civil Law is ambulatory, or alterable, until Death, cannot be altered, in regard of prejudicing another Contract, upon which account the will was made; for Example, A. is seized 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 Heirs 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: foe 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 Knight's Service, in case the Father do not leave his lawful 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 parcel bequeathed, or quit it, or remove it by Law. 
c Id: ib:   
1. For the disposing of Chattels, there are several Customs in several places, of which there remain very clear signs, 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 always a Free will of disposing, 
e Id: ib:  wherefore that writ which is called Breve derationabili partebonorum, which li●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: ●:  is not general, but peculiar to certain Countries, where the Custom 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 only 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 engaged and promised to those to whom they sold any Land.  
1. But for that it is evident, that children natural and legitimate are preferred before others to Succession: it were not amiss to see the Estate and difference of Children, which really is very much, for of Children, some are natural 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 natural, some by accident begin to be Heirs, and some cease to be so, so also of natural 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. Blow: 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 enjoy 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, than his own Heir. 
a Brac. l. 2. c. 21. n. 1.   
1. Our Common Law, although for the most part it leaves the Cases of wills to be tried by the Ecclesiastical Courts according to the Rules of the Civil and Common Law; yet are there certan particular Cases of Lands and Chattels really, and which she hath reserved to herself 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 foe 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 College 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. foe 35. b.  but a Post humus, in favour of Testaments. Although he be in the Womb is notwitstanding supposed to have being 
d Terms 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 rendered certain, as an annuity is given to A. for life, and after his death to him who shall first in the Morning enter Saint Paul's Church, and to his Heirs. B. enters in the morning before any one else; this Legacy shall inure not only to A. but to B. and his Heirs also. 
f Id. ib.   
6. A Body politic, unless by the King's particular 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 descended to the next Heirs, 
i Glan. l. 7. c. 1. Bract. l. 2. c. 26. Dier. fo. 127. n. 54.  (except contrary to the Common Law, the particular custom of any City or Corporation permitted 
k Lit. l. 2. c. 18. F. N. B. 198. I.  unless 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 decreed, 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 Knight's 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 jointly 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 joint-tenants in Fee-simple, where by the custom of the place Lands and Tenements may be given by will and one of them bequeathes his right to a third person, this is void. For since a Will is not in force until the death of the Testator, the right of a joint-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, joint-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 Sail may be employed for pious uses, or for the good of his Soul: 
s Perk. 422. 541. 543. 21. H. 8. c. 4.  but i● they shall cease to fulfil the command of the Testator, within two years, the Heir may enter upon them, and eject them. 
t Fulb. par. c. Devises fo. 40. Blow. fo, 523.   
11. A. being Tenant in Socage gives the Lands which he hath in Fee-simple to his wife for term of life, the Remainder to B. his Brother's Son, and the Heirs males of his Body; and if it shall happen the said B. to die without Heirs of his Body begotten (not expressly nor implicitly naming males) there the said Remainder to C. another Kinsman, and his Heirs males in Fee-simple, and for defect of Heirs 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, etc.] or some other Heir male more remote: But it was adjudged 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. Chattels 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 Vessels, without exception are diviseable: 
x Id. 525.  unless the Testator had but a Joint possession of them at the time of his death 
y Dr. and. Stu. l 1. c. 6. Lit. l. 3. c. 3.  and unless they be affixed to the Fee or , and cannot, being reputed parcel of it, be removed without waist. 
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. Chattels which a man hath in right of his Wife, as Leases for years, etc. are deviseable. 
b Id. 560.   
15. A thing uncertain may be also devised, so long as it may be reduced to certainty by the Legatee. 
c Fulb. par. 38. b.   
16. There hath been a great difference in opinions amongst our learned Lawyers, and that according to the diversity of Species in the cases of Corn, etc. sown by those who had Land in possession, and not severed from the Soil. For example, Tenant in Dower sow's Corn, and dies before Harvest: She may devise the Corn, though not yet ripe, 
d Perk. 521. Stat. Merton. c. 2. Flet. l. 2. c. 37.  which is true also as to those Lands which she holds Jointly or severally under the notion of Dower. 
e Perk. 513. Fulb. 17. ●ural. Devises 38.   
17. But if contrary to custom she be endowed by the Guardian of the Heir, and dying, leaves Corn growing, her Executors may be ejected by the Heir when he comes to age, and hindered from gathering the profits. 
f Perk. 524.  So if the Heir coming of age recover Lands against his Mother, or Widow of his Ancestor in a writ of Admeasurement of Dower; he shall recover not only the Lands but the Corn also, which is by him deviseable. 
g Id. ib.   
18. Tenant by the Courtesey leaseth forth his Lands, and dyeth. The Lessee shall reap his Corn, and may, if he die before it be ripe, devise it, 
h Id. 514.  which may also be done by a Parson of a Church as to his glebe Lands. 
i 28. H. 8. c. 11.   
19 So also he who hath Lands in right of his Wife, his Wife dying after the Corn sown, may reap the benefit, are devise it, 
k Perk. 518. Lit. l. 1. c. 8.  which his Lessee also [in case he have leased out the said Lands] may do. 
l Perk. 513. Fulb. par. fol. 37. b.   
20. Execution is taken upon a Manor of the Debtors by virtue of a Statute Merchant. The Creditor sows the Land, and before Harvest, a Tenant of the said Manor dyeth, the Custody of whose Heir [being under age] satisfieth the Debt: This will not hinder, but that the Creditor may also devise the Corn not yet ripe, or gathered. 
m Ib. 516.   
21. Money is paid at the day upon a mortgage, yet it seems the Creditor [although some are of a contrary opinion] may devise the Corn which he sowed, and which as yet remains ungathered. 
n Id. ib.   
22. Tenant in Taile leaseth out his lands for life: The Lessee sow's Corn, the Heir recovers upon a Formedon in the Descender, and dyeth before the Corn is gathered. This Corn according to the opinion of some (though others contradict it) he may devise by Will. 
o Perk. 520. Fulb. fol. 37. b.   
23. Tenant in Fee-simple dyeth, and leaveth an only Daughter, and a Wife with Child: The Daughter enters, and sows the Land; but before Harvest the Wife is delivered of a Son, to whose use the next Kinsman possesseth himself of the Estate: in this case the Daughter may devise the Corn. 
p Perk. 521. Fulb. fol. 38. a  But we will put the case thus: The Mother before the Son is born recovers Dower against the Daughter, and hath that part assigned by the Sherifte which the Daughter sowed. In this case she may devise the Corn, yet it is a Quaere. 
q Perk. ib.   
24. Tenant for term of years commit waste, upon which the Lessor recovers the Land. In this case the Lessee cannot devise the Corn: 
r Id. 515.  Neither can he, if another upon a more ancient Title recovers the said Land against the Lessor. 
s Id. ib.   
25. Lessee of a House for forty years deviseth the said House to A. without mentioning the Title which he hath, or giveth. The Question is, what he deviseth? And it is adjudged that the Testator deviseth that title which himself hath, Viz. The term of forty years. 
t Dyer, fol. 307. n. 69.   
26. Lessee for years be que at heath his Interest to A. the remainder of the years to B. in case A. die before the term expired. A. is in possession by virtue of the Devise, and not long after Aliens his Right, and dies before the term expired. The Question is, what remedy B hath to recover his Right as to the remainder of the years unexpired? And it was adjudged that he is without Remedy: 
u Id. fol. 75. n. 18. & f. 140. n. 41.  But if the Testator had devised so many years of the Lease to A as A should live, and had ordered B. to succeed in the residue. In this case A. could not have so alienated the Term, but that B. should have succeeded in the Remainder unexpired. 
w Dyer, fol. 358. n. 50, 51. & fo. 359. n. 52.   
27. Disseisee recovers against the Disseisor: The Disseisee may devise the Corn sown; but if it shall be severed from the ground, the Disseisor may take it away, or devise it, 
x Perk. 519.  yet he shall pay the Disseisee Damages. 
y 6. Ed. 1. c. 1.   
28. A Testator can neither devise Actions (if they be not Judgements) nor instruments of Actions: 
z Brac. l. 2. c. 26. a. 28. n. 2. & l. 5. tr. 5. c. 10. n. 3. Fulb. fol. 30, 31.  but he may that which is due upon Action: Yet is this devise conditional, namely, if the Debt be paid or recovered by the Executors. 
a Perk. 527.   
29. Our Law respects principally (as doth the Civil Law and Reason likewise) the will of the Testator 
b Cook. l. 3. Bullers case, foe. 27. Fulb. fol. 46. Plow. 343.  (if not contrary to Law) If therefore a man having both a Son and Daughter living, deviseth his Lands to his Daughter: Although the Son be more worthy, yet the Daughter shall have the Lands. 
c New terms v. devise.  If he adds and annexeth a Condition to the devise, which is neither impossible in Nature or Law, this shall suspend the devise until it be performed: 
d Brit. c. 36. Perk. 570. Brac l. 2. c. 6. n. 1, 2, 3. Swinb. part 4. Sect. 13.  And this is so fare true, that sometimes words are extended beyond their natural intent; 
e See the rest of his tit.  and sometimes for causes restrained, 
f Fulb. 41. Pl●w. 540.  by reason of the conjectured will and meaning of the Testator.  
30. A. deviseth Lands to B. conditionally, that he pay so much money: Although by force of words B. hath an Estate for life only, yet the Law adjudgeth him to have a Fee-simple, 
g Brac. Test. 18. Perk. 555.  for otherwise if B. should die in a short time, He might receive more prejudice than profit by the Devise.  
31. A. deviseth all his Lands and Tenements to B. B. shall not only have all the Lands and Tenements which A. had in possession, but the Reversion likewise. 
h Terms, v. Devises.   
32. If Lands be bequeathed to One, to have any to hold to him for ever: Or to have and to hold for him and his Assigns for ever: In both Cases the Devisee hath an Estate in Fee-simple, although there be no mention of Heirs, 
i Id. ib.  which notwithstanding some affirm jointly. 
k Perk. 557.   
33. If a man bequeath Lands to another in these words, I give my Lands to A. to give them, or sell, or dispose of them at his discretion: This is a Fee-simple. 
l Terms, ib.   
34. A Testator bequeatheth Lands to A. and the Heirs Males of his Body: A. hath Issue only, a Daughter, and of her a Grandson. In this case the Grandson shall succeed in the Lands by force of the Devise, rather than the Devise shall remain ineffectual; notwithstanding that in other Donations it is otherwise. 
m Id. ib.   
35. If I devil Lands to my Son after the death of my Wife, although I do not expressly give it to my Wife, yet our Law helps her by a favourable Construction. 
n Id. ib. Pl. 414. Bro. Exec. 175. 13. H. 7. fol. 17.   
36. I devise a Fee-simple to A. for a 100 years, upon this condition, if that he shall pay ten pound yearly to B. the remainder of the said Lands to C. and his Heirs. In this case, although A. shall break his Condition, yet the Remainder as to C. is not hurt, although the Law be contrary in Contracts made amongst those who are living. 
o Perk. 504. 565, 566, 567, 568, 569.   
37. A man deviseth all his Lands to A. upon condition that he give a 100 pound: And in case the Condition be infringed, then to his own Family. In this case our Law determineth this Devise to belong to him who is next of Kin to the Testator by blood. 
p Fulb. 46.   
38. A man deviseth to another all the Grain which he hath in such a Barn: And after the Will is made, he puts more Grain into the said Barn. In this case the generality of the words is restrained to that which was there at the time when he made his Will, for that the Law presumes the Testator to have meant only of that. 
q Id. fol. 41. Plow. 341.   
39 A. after many Legacies in his Will deviseth the Remainder and residue of all his Goods to his Wife E. in these words: The residue of all my goods I bequeath unto my dear wife E. [whom also I do ordain full and sole Executrix of this my last will and Testament] to be disposed of by her for the good of my soul, and the payment of my debts. E. takes upon her the Office of Execution, and pays all Debts and Legacies. Afterwards she entermarryeth with B. who getting possession of the said Goods (having made his Will, and ordained his Executors) dies before E. Here the question is, whether the Goods which E. brought to her second Husband, shall revert to her? Or whether they belong to the Executors of B. And it was determined, that they should revert to E. because the residue of the Goods were destined to certain uses, and not left to her disposing. 
r Dyer, fol. 331. n. 21.   
40. A. being possessed to the value of 100 pound, and indebted 20. pound, divides his Estate by his Will: One moiety to B. his Wife, the other moiety to his Executors. The question was, whether B. shall have 50 pound, or 40 pound, and it was resolved that the might claim 50. pound: But if the Executors had aliened any of the Goods in Specie, that then she could not challenge any of those which were alienated, because they were alienated. 
s Dyer, fol. 164. n. 57   
41. Devises and Legacies are to be sued for in the Ecclesiastical Court: 
t Glan. l. 7. c. 7.  Yet some restrain this assertion only to Chattels real and personal; 
u Perk. 570.  for that the Ordinary cannot take Cognisance of Fees or Freehold 
w Id. 576, 577, 578, 579.  devised. But a Prohibition will lie, if any Judge of any Spiritual Court shall city one before him in case of such a Devise as intrencheth upon the Common Law. 
x Dr. & Stu. l. 2. c. 55.    

Of the taking away, or translating Devises.  
TIT. XXI.  
WHereas the Civil Law doth, ipso facto, null the Will for default of an Heir. 
a L. 10. ●. de jure codillorum.  Ours doth not presently suffer Devises to become void for want of an Executor, or for default of an Executors undertaking the Office, but appoints Administration of the Goods to be committed to another, according to the Judgement of the Ordinary, who obligeth the Administrator to the payment of Legacies, at least as fare as the Estate will reach. 
b Bro. Executors.   
1. Lands, Tenements, and other Hereditaments whatsoever, devised by a Testator: If they shall happen afterwards to be alienated by him, and are again redeemed: They are equally due to the Legaree, as if they had never been alienated. 
c Id. Devise, 8.    

Of that Law which the Romans called Lex Falcidia.  
TIT. XXII.  
THe first duty of an Executor taking upon him the Office, is to satisfy the Debts of the Testator: and therefore it will not be amiss to consider what Antiquity hath adjudged in these cases. If there be Debts owing to many [saith Bracton] 
a L. 2. c. 26. Glan. l. 7. c. 5. Flet. l. 2. c. 57  one may be preferred before another. The King is first, and it shall be lawful for the Sheriff, or any of the King's Bailiffs [showing the King's Letters Patents, De summonitionibus scaccarij] to take an Inventory of such Goods and Chattels, as they shall find in the Lay-fee of the party deceased, and to attach them to the value of the Debt which is coming unto the K. per visum legalium hominum [as we call it] so that nothing be removed or taken thence until such a Debt as shall appear due be paid, and the residue of the Chattels to be left to the Executors. To the acquitting of which Debts or any other, the Wife of the party deceased is not to contribute any thing out of her Jointure, for that the Wife's Jointure ought to be free, 
b F. N. B. foe 151, a.  which holds true, except where the Husband is indebted to the King before the Title of Jointure. In the second place are to be deducted debts due to others, such as are clear and acknowledged; amongst which are to be reckoned services and Servants wages, provided they be certain: But if they be incertain, although they depend upon courtesy: Yet if their stipends shall be set by the Will of the Testator or his Friends, they shall be deducted out of the Goods of the deceased, so shall Funeral Charges. The Wife also shall have her necessaries, even her lodging in her Husband's chief Mansion house for 40. days, unless her Dower be sooner assigned.  
1. But that the Estate of the Party deceased may the better appear, the Executors or Administrators, with the privity, and by the assistance of two at the least of the Creditors or Legatees: Or if they refuse, than two of the next of Kinne [provided they be unconcerned] of the Deceased: Or upon their denial, then of any two honest men, who are obliged to take true and faithful Inventory of all the Goods and Chattels, Movables & Immovables, which the Party deceased had at the time of his death, and to write all and singular the said Goods justly apprized in 2. Charters or Tables indented: The one to be reserved to themselves, the other to be delivered to the Ordinary; But if the Testator had appointed any of his lands or Tenements to be sold, the money or profits thence arising are not to be put into the Inventory. 
c 21. H. 8. c. 5. Swinb. part 6. Sect. 9   
2. But the Heirs are obliged to satisfy the Debts of their Ancestors, which the Chattels will not suffice to do. 
d Glan. & Brac. ubi sup.  Yet if the whole Estate of the Testator would not suffice to pay Debts then, the King's Prerogative excepted, there used in former times to be a defalcation every where. 
e Brac. ib.   
3. And even at this instant the Law is, that Legacies are not to be paid before debts be satisfied; for in such cases the Executor is bound to pay the Creditors out of his own Estate, 
f Dr. & Stu. l. 2. c. 11. Bro. Execut. 116. Perk. 488.  yet is he not tied to pay every one that demands a Debt, but those only against whom the Testator, had he lived, could not have waged his Law. 
g Bro. ib. 79. 87. 127. 163. 172. Dr. & Stu l. 2. c. 11. Plo. 181. Dyer, fol. 23. n. 144, 145 & fol. 80. n. 53, 54, 55.   
4. The ancient Law seems to be somewhat changed, as to the privilege of Creditors: Yet even now it seems that the Executor may in the first place allow moderate Funeral charges, and then satisfy Creditors according as the Law prescribes: and of those, the King is first by his Prerogative. 
h Mag. Char. c. 18.  Next him, those to whom the Testator was obliged by Statute-Merchant, or Recognisance. In the third place, those who have Judgements against the Testator. 
i Swinb. part 6. Sect. 16.  Fourthly, penal Obligations: 
k Bro. ib. n. 88 172.  And of these those have priority, whose days for payment are lapsed, 
l Dyer, foe 80. n. 54.  and of those [if there be many] they who sue first: But if they commence their suits together: Or that days of payment be not yet come, than it is in the power of the Executor to gratify whom he pleaseth. Next to penal Obligations follow simple Bills, 
m Swinb. ubi super.  as we call them. And lastly, Contracts without writing, against which the Testator could not wage his Law. As Servants Salaries, and Rent of Lands or Houses, whereof the Testator was Lessee for years or life, and the like. 
n Bro ib. n. 33. 87. 127. 163.  But as for made Contracts, Executors are not obliged to pay them: 
o Id. ib.  Yet according to the opinion of some, these have their remedy in an Action upon the case upon a promise of the Testator. 
p Terms, v. Execut.   
5. If a Creditor be made Executor, he may in the first place satisfy himself, after which he is bound to pay the other Creditors out of the residue. 
q Blow. fol. 185.   
6. If after Debts paid, there remains enough to satisfy Legacies, every Legatee may of right claim his whole Legacy; Otherwise only according to the proportion of the Estate, and the quantity of all the Legacies: Yet so, that the Executor may first deduct charges, bonafide expended, and desperate Debts: But under the notion of lex falcidia, we have not any thing, nor is there any thing in that nature required from the Office of a Judge: But as to those Goods which are not devised, they are convertible to the use of the Executor. 
r Perk. 525.   
7. Executors of Executors are obliged to the payment of the first Testators Debts, unless his Goods appear to be fully administered by their Testator. 
s Dyer, foe 174. n. 21, & 22. 25. Ed. 3. Stat. 5. c. 5.    

Of those trusties which the Roman● called Fidei Commissarii Haeredes & ad sanatusconsultum trebellianum.  
TIT. XXIII.  
THese Inheritances are out of use with us, yet those Trusts are something parallel to them, by which we are used to give our Lands to Strangers to the use of us and our Heirs, or to private persons to the use and profit of a Body politic. But those inventions of Uses being injurious to the Prince, and to the Lord of the Manor, 
a Coo. l. 1. Shudleys' case, fol. 123.  are by Acts of Parliament either wholly taken away, or at least for the most part altered. 
b 1. R. 3. c. 1. 4 H. 7. c. 7. 27. H. 8. c. 10.    

Of things left Per fidei commissum.  
TIT. XXIV.  
OF those things which were by the Romans termed Fidei commissa [excepting those which are appointed to the next Title] we have no mention in our Law, they being left wholly to the Civil Laws definitions.   

Of codicils.  
TIT. XXV.  
THe term Codicillus is seldom used with us; wherefore in this we only follow that which we borrow from the Civil and Common Law, unless it contain either a Fee or a . In which cases they are to be proved only before an Ecclesiastical Judge, and to receive their Interpretation according to the Laws of the Land.   
The End of the Second Book.   

THE Third Book of the Institutes of the Laws of ENGLAND.  

Of Inheritances which are conveyed from such as die even Intestate.  
TIT. I.  
THERE is also another way of gaining Dominion, which is by Succession, and which happens to all Heirs of such things whereof their Ancestors died, seized in Fee, or whereof they were at any time seized, as of Fee by Right of Inheritance, without having alienated them. And this Descent ought to be to the next Heirs, Males or Females, in a direct or transverse line: Wherefore Right, like all heavy things falls downwards directly or transversely, nor doth it ever ascend 〈◊〉 same way, by which, by the death of the ancestor it descends, yet doth it collaterally ascend, sometimes for want of Heirs to whom 〈◊〉 may descend. 
a Glan. l. 7. c. 1. Brac. l. 2. c. 29. n. 1. Dr. and Stu. l. 1. c. 7. Flet. l. 6. c. 1. and c. 2.   
1. A Right descends to the Heir, wheresoever born, whether in the womb, or beyond 〈◊〉 on this side the Sea, and that whether within or without the Dominions of the King. Provided, his Parents be the King's Liege People, and that the Mother went over Sea with her Husband's leave, nor can any man create to himself an Heir, because God only makes them, and because, Haeres, is not ab Haereditate, but Haereditas ab Herede.  
2. Now Inheritance is a Succession to the whole right, which the Ancestor deceased had in Fee, upon what cause soever, whether by Acquisition or Succession, with Seisin or without, and if by Seisin, then at whatsoever he was seized, either in his life time, or at his death, namely upon the day, on which he died, and if the right descend to more Heirs, 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 . 
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 ne'er and more Remote, 
c Glan. l. 7. c. 3  and some into near and more near, 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 Sons they are all near Heirs, those that were last born, and those that were born before them, 
e Bract. ib.  and so are Daughters when Sons fail. 
f Glan. ib.   
The next Heir, is he who was born first, 
g Bract. ib.  unless the custom 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 near heirs and the Daughters remote, this holding always 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 near Heirs 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 termed more remote in respect of the Inheritance, being more remote as the lineal Nephew or Neices Son, his Grandson, his great Grandson, his great, great Grandson, etc. 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 custom 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 Coheirs, 
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 always a Maxim, that a Fee-simple could never ascend from a Son ●o a Father or Mother or any other Ancestor▪ ●n a direct line, 
p Coo. l. 3. fo. 40. Ratlives case. Dr. and. Stu. ib. Bract. l. 2. c. 29. Lit. l. 1. c. 1. Brit. c. 119.  nor can any one in a transverse line, succeed, so long as there is an Heir, to whom it may descend 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. Chattels neither personal nor real come unto the Heir but by the custom of the Kingdom to the Executors, or from an Intestate to the Ordinary; and from him to the Administrators whom he shall appoint, 
s Glan. l. 7. c. 16. Perk. 48.  or if no body will administer, than ought the Ordinary to sequester them upon his own peril. 
t 13. E. 1. c. 19 31. E. 3. c. 1●. 21. H. 8. c. 5. Flet. l. 2. c. 57 Dier. fo. 277. n. 57   
13. The Lord of the Manor 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 legal Succession on the Father's side.  
TIT. II.  
IN the transverse or collateral 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 Venture, and D. a Son by a second Venture, 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 Venture, 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 foe 40.  but if B. die without Issue then D. shall succeed, being of entire blood with him both by the Grandfather's side and Grandmothers: And therefore, if B. had not been Brother to A. both by Father's side and Mother's side, it should have been otherwise.  
2. The collateral 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 collateral descending line, who is nearest in degree, and if this line fail, than he who is next to the party deceased in the ascending collateral 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 Mother's side, there the Son dying without Issue, the next of kin on the Mother's side is Heir, and not the Brother of the Father, 
f Id. ib.  but where the Son purchaseth an Estate with his own Money and dyeth without Issue, there the next of kin on the Father's side shall succeed; and not on the Mother's side, unless for defect of Heirs on the Father's side, 
g Lit. l. 1. c. 1. Coo. l. 3. Rat. case. fo. 39  but the Heir on the mother's side shall succeed, rather than the Land shall escheat to the Lord. 
h Plow. 444.   
6. A. hath two Sons, B. and C. B. in his Father's life time commits Felony, and is punished with Death, after which A. dies, the question is whether the Fee whereof A. died seized, shall escheat to the Lord, or descend to C. the second Son. And here it is to be considered, whether B. died without Issue, for than it descends 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 descended to C. 
k Kitchen, tit. Escheat, f. 110.    

Of the Tertullian Decree.  
TIT. 3.  
WE 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 persuade our Senate to the contrary.   

Of the Orphitian Decree.  
TIT. IU.  
CHildren with us do equally, succeed to Inheritances coming from the Fathers or Mother's 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 Cousins by the Mother's side.  
TIT. V.  
THe Romans called those particularly, Cognati which were allied by the female side, 
a Ult. S. 1. ●. de gradibus affinitatis.  but there remains nothing to be spoken of them, the two former Titles being considered, 
b viz. The first and second of this book.  where we have shown: That these are never to succeed as Heirs, but for default of Heirs on the Father's side; which is so to be understood, that the most remote Cousins on the Father's side descending in a direct line, but not in a collateral, are to be preferred before the nearest on the Mother's side, for the great great Grandchild of my ●●neall Niece, or of my Sister, shall succeed 〈◊〉 before my Sons or Daughters, Cousin-german. 
c Bract. l. 2. c. 30. and 31.   
1. This briefly I thought also to insert, that 〈◊〉 default of Heirs in a right line descending 〈◊〉 in each collateral line, the Land shall escheat 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 ●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, Grandfather, great Grandfather, the great Grandfather's Father, the great Grandfather's Grandfather, the great Grandfather's great Grandfather, and so ad infinitum. 
b Id. ib. Flet. l. 6. c. 2.   
2. In the right line descending, Father and Mother are first which make the common root, than Son and Daughter, the Nephew and Niece, and so, Ad infinitum. 
c Brac. and Flet. ib.   
3. In the collateral 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 collateral line descending are Brother and Sister, and their Heirs, 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.  no● 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 lawful.   

Of the succession of such as are made free.  
TIT. VIII.  
Patron's are not with us admitted to succeed those who are made free, in case they die without Issue, wherefore if any one purchase a Fee after Manumission and die without Heirs, the Lord of the Fee shall claim it by Escheat; and not he who gave the party deceased his freedom, 
a F. N. B fol. 143. T. etc.  the same rules are also for the Chattels 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 kind of Assignation in our Common-weath.   

Of the possession of Goods.  
TIT. X.  
THE supreme power with us gives the possession of a Fee to the Heirs of them who hold the Fee of him by any kind 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. foe 255. and. 256. c.  nor can the Heirs receive them but by his hands, those who hold of other Lords by Knight's 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 Chattels, the Ecclesiastical 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, than 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 essential, for our Law determines nothing of this kind of acquisition, unless 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 Freedom from their Lords by Testament, the chief thing is the performance of the Will, for it is not material whether the Executor will accept the Office. For we have shown before, how ungrateful 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 Bankrupts (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. Sesse 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 legal Bond or tie, whereby we are necessarily bound to the giving or doing of any thing. 
c id. ib. c. 2. n.   
All civil Obligations may be divided into two kinds, Obligations by the Common Law, and by Statute. The Example of the former, is that which vulgarly we call a penal Obligation, etc. and of the later, that which we term a Statute Merchant, or whatever 
[d] West. Symb. l. 1. Sect: 156: &c  else takes its Original from any Statute of this Commonwealth. 
e 1 E: 1 Stat: 1: 38 E: 3: c: 4 New book of Ent: Action sur ●e Statute: Flet: ●: 6: c: 64:   
2. An Obligation from a precedent cause, that is either from a Contract, or something of nature, or from a misdemeanour, or something of that nature. There are former Species of obligations by Contract, by a thing done, by words, by writing, by consent.   

How an obilgation is contracted by a thing done.  
TIT. XV.  
AN Obligation is contracted by a thing done, as by mutual giving, which consists in weight, number, and measure, in weight, as in things which are weighed, as Brass, Silver, Gold. In number, as in Money numbered. In measure, as in Wine, Oil, Corn: now these things which being weighed, numbered, or measured, are given to this end, that the receiver hath immediately a propriety in them, make a mutual Contract, that being properly mutual, which Ex meo, becomes Tuum, and when things of another nature are rendered to the Creditor, and not of the same. 
a Glan: l: 10: c: 3: Brabant: l: 3. tr: 1: c: 2, New book En: Debt. in Approm. 1, 2, 3, Flet, l, 2 36,   
I● a man by Error pays money to another to whom it is not due, he shall recover it again by his Action upon the Case, and he who took what was not due, is obliged. 
b In tit: this Title, Sect, 1,   
2. He to whom any thing is given for him to make use of, is obliged in the thing lent, but there is a great difference between a thing mutual given, and a thing lent, for he that receives a thing lent is bound to make restitution in Specie, or to the value, if accidentally it happen to be lost or consumed, by fire, ruin, shipwreck, Theives 〈◊〉 the incursions of enemies, or lost any other way: Nor is it sufficient, that he keep them with the same care and diligence as his own if any other person could possibly have preserved it with more safety, but no man is obliged against a greater force or casual accident, unless they happen by his own negligence; as if one take a thing lent, home with him, himself being to go travel, and th●● chanceth to be lost by the Incursion of enemies, robbers, or by Shipwreck: there is n● doubt, but in this Case he is bound to restitution. 
c Brac. ib. Brit. c. 28. Glan. l 10. c. 3. F. n. b. 121. B. Dr. & Stn. l. 2 c. 138. Flet. l. 2. c. 56.   
3. Now a thing that is lent is given 〈◊〉 commodum, and is properly called Resco●modata, there being no reward given for its use by way of hire, and whatsoever is lent, aught to be lent gratis, for when any reward inte●veneth, it is rather a locution or putting to hire, than a lending. 
d Brac. ib. Glan. 30. Flet. c. 13. ib.   
4. He also with whom a man entrusts any thing is obliged, & bound to restore it, as also if he have committed any fraud or deceit in 
e Brac. ib. Terms v. Garnishment. Dr. Stud. l. 2. 24. and 38. D. or Ent. Action sur le Case. Garder, & Hostler, and Gager deliverance. V n. b. 66 63.  relation to it, but he is not obliged under the notion of a fault, as for carelessness and negligence, for that whosoever commits any thing to a negligent friend, it is to be imputed to his own folly, but this Law seems now changed, unless he that received the thing in trust, promiseth expressly to keep it as his own. 
f Coo. l. 4. Southcots Case   
5. A Creditor, who receives a Pledge, o Pawn is also obliged, and bound to restore it and of such things are given for the conveniency of both, viz. by the Debtor for to procure the money to be lent him, and to the Creditor for his security, it is sufficient to keep it with a due care, which if he shall perform, and accidentally lose the thing before the debtor tender the money, he is secured, nor shall he be hindered from recovering his Debt, 
g Brac. ib. Glan. ib. F. n. b. 86 C. boo. Ent. Action sur le Case Gage 1. and Termes v. Mortgage. Flet. l. 2. c. 56.  now we call that a due care and diligence, which a man hath toward his own Goods. 
h Coo l. 4. Southcots' Case.    

Of obligations by words.  
TIT. XVI.  
A Verbal Obligation is contracted or made by Covenant, now a Covenant is a certain conception of words which consist of Question and answer, as if it be said, dost thou promise? I do promise. Wilt thou give? I will give. Wilt thou do it? I will do it. Wilt thou engage? I will engage. 
a Brac. ib. n. 2. Brit. c. 28. Flet. l. 2. c. 56.   
1. Every Covenant is either pure or limited to a day, or conditional. Pure; as where it is said, dost thou promise to pay so much money? without adding any day or condition, in which case the money may be demanded immediately, but if there be a day added when it ought to be paid, it is immediately due, but cannot be demanded before the day, nor upon the day, because the whole day is left to the discretion of the Debtor, (b) nor is it certain that it will not be paid that day, before the day be past, nor can any one in like manner demand if one promised to pay this year, or this month, before every part of the year or month be past. 
c Brac. and Brit. ib.   
2. A Covenant is made sometimes conditionally, as if it were said, if A. be made Alderman, dost thou promise to pay so much? where observe, that in this which is conditional, there is only hope, and expectation, and conditions which relate either to time past or present, do either totally adnull the Obligation, or else not at all differ it, as if a promise be made to pay so much, if A. were living, or be now living, for if he neither were living, nor yet is living, the promise is void, because those things which in nature are now certain, do not vitiate an Obligation by their being incertain as to us. 
d Brac. ib. n. 3. Brit. ib. Flet. ib. Dr. and Stu. l. 2. c. 35.   
Things to be done, may also be resolved into promises, as a promise to do a thing, or not to do a thing, in which Case it is best to add a penalty because of incertainty, or lest the Actor be forced to prove the value, now a penalty is thus added, if this be not done, than thou promisest to pay so much, Nomine pe●e. 
e Brac. ib. n. 4. Flet. ib.   
4. But it is to be observed, that this verbal Obligation is called a simple contract, 
f Dr. & Stu. l. 2, c. 24.  by out Authors, who weigh that which is done 
g F. n. b. foe 119. G. West. l. 2. Contracts. Sect. 3. Sec Dier foe 90. n. 8. & fo. 336. n. 34.  more strictly than the definitions of things and that they do not bind, unless there be as consideration, or a quid pro quo, 
h F. n. b. foe 120. K. and 112 H. Bro. Contracts 5 Dier 272. n. 31. 32, and foe 296. n. 22.  as where a promise is the occasion, that any one ●oth hat which otherwise he is not obliged ●nto. 
i Dr. and Stu. l. 2. c. 20, & 24.   
A Covenant in the Civil law is perpe●all, but with us a Contract, though in writing doth not oblige the Heirs, Execu●ors, or Successors, 
k Dier, foe 23. n. 142.  without which they be specially named, or that the King be Creditor. 
l Flet. l. 2. c. 6. Bro. Garranty 89. Coo. l. 2. Cromwell's Case. Blow 457. Dier 14. n. 67. and f. 42. n. 12.  Nor doth it work anything, as to immovables, 
m Blow. ib.  much less therefore will ●n Action lie against Heirs or Executors, upon a verbal contract.  
6. We do seldom contract upon a bare promise, especially in things of consequence, because it is often made void by a wager in Law. 
n B●o. Legager throughout.    

Of the two parties in a Covenant and Promise.  
TIT. XVII.  
THere may be two parts, covenanting in our Law also, and in this case either of them may release, and the Survivor may claim the whole, if it be unpaid, 
a Bro. Executers 149.  but there are more frequently two or more in a Promise there being scarce any one at this time who will lend any considerable Summés to one alone.   

Of the Covenants of Servants  
TIT. XVIII.  
Servant also with us may covenant in the person or stead of their Lords, to whom the Fee and other things which they shall purchase, shall be due. 
a Dr. and Stu. l. 1. c. 8.    

The Division of Covenants.  
TIT. XIX.  
A Covenant is either Judicial or by consent, Judicial is that which is by command of a Judge, the other is by the consent of both parties, without command of any Judge. 
a Brac. l. 3. tr. 1. c. 2. n. 6. F. n. b. f. 123. C. and D.    

Of void and unprofitable Covenants.  
TIT. XX.  
IF a man promiseth to give a thing which is not in Re●um natura, nor cannot be possibly, it is 
a Brac. ib. n. 5 Flet. l. 2. c. 60.  void, so if one promise that which is not any one's particularly, as a thing sacred ●r public. 
b Brac. ib.   
2. So he that promiseth another man, who is not under his power shall give or do 〈◊〉 thing, is not obliged. 
c Brac. ib. Perk. 759.   
3. If one covenants for another, then ●or him whose Villain he is, it worketh 
d Brac. ib. Brit. c. 28. Flet. l. 2. c. 56.  ●othing.  
4. He who answers not according to demand, nor according to what he is asked, (as if one covenant to pay me ten pounds, and another promiseth five pounds, or if one covenant absolutely, and another conditionally) makes his covenant nothing. 
e Brac: ib: n: 4. Flet. ib.   
5. Nor are Covenants or promises worth any thing, being made with or to them, who are under our power. 
f Brac: ib,   
6. He that is mute can neither Covenant nor promise, since he cannot speak nor utter words congruous to a Covenant, which is always received as to those who are deaf, because he who covenants ought to hear the words of him that promiseth, and he that promiseth of him that covenanteth, unless it may be done, by signs or writing, nor is this spoken of those who hear with difficulty, but of those who hear not at all. 
g Brac. l. 3. tr. 1. c. 2. n. 8. Brit. c. 28. Flet. ib.   
7. A mad man cannot covenant, nor indeed do any thing, because he doth not understand what he doth. 
h Brac. ib. Brit. ib. Perkins, 3, 4, 5. Coo. l. 4. Beverleys' Case. f. 123.   
8. Whatever also is covenanted with a Monk 
i Brac. Brit. and Perk. ib.  feme covert, 
k Id. ib. and Perk. 722. 735.  or servant 
l Broo. Gontracts 40.  in and for their own persons, is invalid, as also by him who is condemned of felony, as far as it redounds to the prejudice of the King, or Lord. 
m Perk. 26, 27. etc.   
9 Those Covenants and bargains which are extorted by force and fear are invalid▪ as if any one by reason if Duresse of Imprisonment promiseth or granteth any thing b● word or writing 
n Brit. ib. Perk. 16. 19 Fulb. paral. c. bargains fo. 15.  which is so to be understood if the pact or agreement do at all relate to the thing for which the party is imprisoned, 
o Perk. 18.  so if any one threaten to kill, imprison, or beat me, if I do but give or sell him such a thing, it makes the gift invalid, unless the fear be less then usually happens to a resolved man. 
p Fulb. ib. Flet. l. 3. c. 7. Blow. fo. 19   
10. So neither can an Infant, or he that is next to an Infant, and who differs not much from a madman, Covenant, unless it be for his own benefit: And by the Authority of his Guardian, 
q Bract. ib. 5. Brit. ib.  yet in some cases an Infant is bound. 
r Blow. fo. 364.   
11. A Covenant is made also invalid, by a condition which is naturally impossible; as if the Covenant be to give me so much if I touch heaven with my finger, 
s Bract. and Brit. ib. Flet. l. 2. c. 56. Dyer. fo. 169. n. 1.  but if it were conditionally I did not touch Heaven with my finger, that were good, and be coming absolute and pure, and the Money may be immediately demanded. 
t Bract. &. Fle. ib.   
12. A Covenant is unprofitable also, if it be to pay so much to day, in case such a ship shall come from Asia to morrow, yet although it is preposterous, it shall not be rejected, 
u Idem. ib.   
13. But that Covenants, and Obligations may be in writing it is evident; for if it be written in an Intrument, that a man promiseth, it is so to be construed, as if it were in answer to a preceding question. 
w Bract. ib. n. 8. Flet. ib.   
14. If where many things are reduced into a covenant, the Obligor promiseth simply; so I promise to give: He is obliged to all; and if he promiseth one thing solely of many or some certain things, the Obligation is contracted into those to which he answereth, 
x Bract. ib. n. 5 Flet. ib.   
15. But there are such Covenants and Obligations at this day found out for this purpose, that every one may have and assure to himself his own Interest, if there be any thing done against it which is mentioned in the Covenant, and if the thing mentioned be given to another, yet notwithstanding the Covenanter shall have his interest, because the Obligor is bound to the interest, or to the penalty, if there be any, 
y Bract. ib. n. 9 Dr. and Stu. l. 2. c, 20. and 21,   
16. If any one Covenants with another, himself being interested, it seems that he is pleased; the Covenant shall be good, as if a Guardian Covenant with his Ward. 
z Brac. ib.   
17. It is to no purpose for any one to Covenant, that that which is his own shall be his own in the same manner and form as it is his, for that which is once mine by one cause, and from one, during my possession, cannot be mine again by the same cause, and from another.  
18. If the Covenanter thinketh and supposeth one thing and the Obliger another, the Covenant is no more valid than if there had been no answer at all to the question. 
a Brac. ib. n 4. Fleta ib.   
19 Nor is it valid if any one covenanteth with thee to commit an Homicide or Felony, etc. For thou shalt not by this be obliged. 
b Brac. and Brit. and Fleta, ib. Perk. 723.   
20. A Promise is invalid also to the Keeper of a Goal or Prison, that a Prisoner upon Execution shall not escape or break Prison, for we suppose this ●o be against common Right and Law, which wills that men imprisoned for debt should be kept more strictly, that they may more willingly and readily endeavour to satisfy their Creditors, 
c Bro. conditi. 45. 85. Cromp. Jurisd. fo. 10. Dyer fo, 118. n. 1. and foe 34. n. 33.  which seems true in all cases, where the Prisoner is not bailable. 
d Blow. fo. 63. etc.   
21. Where a man covenants under any Condition, and dies before the Condition be performed, though the Condition be yet in being, yet our Law doth not give any Action to an Heir or against an Heir. 
e Coo. l 2. case Crom. foe 78. and 79.   
22. If there be any day of payment mentioned which will never come, as Doomsday, etc. it is immediately due, 
f Bro. obligat. 58.  a Covenant for the person of a man or for an Estate is good. But the thing so mentioned in the Covenant cannot be demanded, before so much time be passed, as wherein it may conveniently be delivered.  
23. It doth not seem that one can well be covenanted with by a Body politic, because they oblige themselves to nothing, save under their common seal, 
g Bract. ib. n. 2. Bri. ib. Coo. l. 3. Butters case foe 28. etc. Fulb para. c. Barg. fo. 14. A.  but if one buyeth any thing which is converted into the use of a Body politic, the whole Body seems to be bound. 
h Broo. Corporations 53.    

Of Sureties or Pledges.  
TIT. XXI.  
HE, whom the Civil Law calls Fide justor, we call Plegius or Surety, when ●ny thing is lent to another it is used to be ●one by the giving of surety, in which case 〈◊〉 the principal Debtor fail, so that he is ●nable to pay, than we have recourse to the sureties 
a Glan. l. 10. c. 3.  and not before 
b Brit. ib. Flet. ib. F. N. B. 137. F.   
1. Now Sureties, if there be many, are e●ery one obliged in the whole, unless it be otherwise covenanted, when they become pledges, and that satisfaction was to be requi●ed from them altogether, so that if many ●uretys were given, and some or more of them become insolvent, the whole burden of acquitting belongs to the rest either for the ●hole, or for so much as they have made de●ault. 
c Gla. l. 10: c. 5. F. N. B. 122. K.   
2. But if in case of giving sureties, some sureties do oblige particularly, for certain ●arts, as for what shall happen as to those particulars whereto they oblige, they are ●ot responsible for any more than those particulars to which they do oblige. 
d Glan. ib.   
3. Now if sureties happen to be sued through default of their Principals, and be compelled to make payment, they may have ●heir Action, against him 
e n. Bo. enter. Pledges, 2. F: N. B. foe 137. l. and 146. B. Flet. l. 2. c. 63:  that was principal.   

Of obilgations by writing.  
TIT. XXII:  
ONE may be obliged also by writing, 〈◊〉 if one writes that he oweth another, 〈◊〉 is indebted to another, he is obliged by 〈◊〉 writing, whether the Money be numbered 〈◊〉 not, nor can be except against the writing that the Money is not numbered, because 〈◊〉 hath in writing acknowledged himself 〈◊〉 debred. 
a Glan: l: 10: c. 12: Bract: l: 3: tr: 1: c: 2: n. 9: Brit: c: 28: Flet: l: 2: c, 56.   
1. Obligations in writing are of a higher nature and more binding with us then Cor●nants; for in these there needs no consideration to be expressed, 
b Blow: fo: 308:  if in any case there 〈◊〉 be a verbal Contract which is afterwards reduced into an Obligation in writing, the former Contract is wholly extinct, nor wi●● there arise any Action from it, but the Bo●● only remains in force, 
c F: N. B: fo: 121: Bro: Obligat: 21:  which notwithstanding, in case of Debt upon record, 〈◊〉 another former Obligation in writing is otherwise; 
d Bro: ib: 23: Fulb: c. Borrowing, fo: 52. Dier, foe 21: n: 131.  nor is an Obligation in writing made void or discharged by any verbal promise of not requiring the Money. 
e Dier, fo: 51: n: 12:   
2. Now of this there are two sorts: th● first, is called simple, or single, where in th● Obligor or Debtor only acknowledgeth th● Debt, and promiseth payment: the other Conditional, which obligeth to a greater 〈◊〉 as namely double) with a condition annexed, which freeth from the penalty, provided the principal Debt be paid at a day as●gned.  
3. And this is divided into Conventio●all and Judicial. Conventionall is that ●hich by consent of Parties is written and ●aled, and delivered before private men. The Judicial is that which is entered into be●ore a Judge, or one that is in stead of a ●udge: Of which sort are Recognizances ●nd Statutes Merchant, and of the Sta●●le. 
f N. B. Entr. Action sur le Statut.   
4. A Recognisance is an Obligation in writing enrolled, or upon Record, testifying ●he Debtor or Recognisor to owe such a sum ●f money to the Creditor or Recognisee, and 〈◊〉 acknowledged in a Court of Record, or ●efore a Judge, or publque Minister authori●ed to take it. Now these are the Masters of ●he Chancery, the Justices of either Bench, ●he Barons of the Exchequer, Justices of the ●eace, etc. And those are properly called Recognizances, which are not sealed by the Recognisor, but written and enroled in the Arches and Treasuries of the Court. The power and force of which is such, that for nonpayment Execution is granted, and the Creditor hath possession given him of all the Chartels of the Recognisor (except his Oxen and other Instruments necessary for Husbandry) as also of the moiety of his Lands until the Debt be satisfied. 
g West. Simb. part 1. l. 2. Sec. 149. 23. H. 8. c. 6. & 37. H. 8. c. 9 Coo. l. 3. Herbert's case, fol. 11, 12.   
5. A Statute Merchant is an Obligation in writing, sealed and enroled, or upon Record [as we say] witnessing the Debtor to owe unto the Creditor such a sum: this is acknowledged before such persons as are appointed by the Statute: As Clerks, who from their Offices are called Clerks of the Statute Merchant, the Mayor, principal Guardian of London, or two Merchant's 〈◊〉 the same City, especially appointed: Or else the Mayor, Recorder, and other fit men of other Cities or Burroughs which have this power, and they are sealed both with the Scale of the Debtor, and of the King, for the King hath a special Seal for this purpose, divided into two equal parts, whereof the one which is least is committed to the care and custody of the Clerk of the Statutes, the other to the Mayor or Guardian. The body of the Debtor is liable to be taken upon execution of this Obligation, if he be a Layman, and can be apprehended: But if he be not, or cannot be taken within 3 months to make satisfaction, his Goods and Lands are liable: 
h West. ib. sec. 151. 13. E. 1. st. 3. 5. H. 4. c. 12.  But if the Debtor be in prison, the Creditor must afford him Bread and Water. 
i F. N. B. 116 O. & 133. C. 13. E. 1. Stat. 3. Broo. Stat. 15.   
6. A Statute of the Staple is double, one properly so called, the other improperly. That which is properly so called, is an Obligation enrolled or recorded, which is acknowledged in the presence of the Mayor, and of one or two of the Constables, and sealed by him. Now by force of this Obligation, if the Debtor make default in payment, the Creditor by authority of the Praetor seizeth and detaineth the Body, Lands, and Goods of the Debtor until he be satisfied, provided he be found within the limits of the Staple, or that his Goods may be taken. But if neither his Body, nor sufficient of Goods be found there, the Chancellor of England upon Certificate of the business, un●er the Seal of the Mayor, decrees further, That both his Body and Goods, wheresoever they ●e found, shall be taken, and his Lands extended until satisfaction made. 
k West. ib. sec. 173. 27. Ed. 3. St. 2. c. 9   
7. That which is improperly called a Statute of the Staple, is an Obligation acknowledged before either of the Chief Justices, Or in their absence, before the Mayor of the Staple of Westminster, and the Recorder of London, and it hath the same force in Execution as the other: But it is called so improperly, because it is not only used as the other among Merchants, but according to that Example, amongst all the Subjects of England. 
l West. ib. sec. 55. 23. H. 8. c. 6.   
8. It hath been often questioned, whether that little piece of wood, which we call a Tally, with an Obligation written upon it, and sealed with the Seal of the Debtor, may be called an Obligation in writing: But because letters written in wood may be easily razed out, and altered, it was resolved unfit to allow and open so apparent a way to deceit. 
m Bro. oblige. 80. F. N. B. fol. 121. l.   
9 These conventional Obligations ought to be in the first person, those which are in the third being of no force, though some will have these being made amongst Clerks in other Nations beyond Seas valid. 
n 38. E. 3. c. 4 Bro. Oblige 51. 65.   
10. Amongst those Obligations in writing, which we call Faits or Deeds: there are some things so essential, that an Obligation cannot be good without them, other things less necessary and essential. Of the first sort are writing in Paper or Parchment. Of the second, Inditing and Form: The omission of which doth not invalidate the Obligation. 
o Coo. l. 2. Godwards ca●. fol. 5. Dyer, sol. 192. n. 26.    

Of Obligations made by Consent.  
TIT. XXIII.  
OBligations are not only by writing and words, but by Consent; as in Contracts which are bona fide, namely Bargains and Sales, Lend and Borrow, Partnerships and Hirings. Wherefore these kind of Obligations are termed Contracts by consent, in regard writing and Presence is not always necessary. 
a Glan. l. 10. c. 14. Brac. l. 3. tr. 1.. c 2: n. 9   
1. We must not here omit that our ancient Lawyers called those Obligations which were contracted by the Thing, Words, and Writings, or Consent; not so much Contracts, as the compleating and perfectings of Contracts, to which they add Livery and Joining; 
b Brac. l. 3. tr. 1. c. 2. n. 1. Brit c. 28.  that is, an accumulation of Agreements, or adding Agreement to Agreement. 
c Flet. l. 2. c. 60.  For a Contract cannot be without consent, and therefore possible it was for that reason. The other Forms were rather Ornaments and Compleating, because the Consent is chief material, and is in all, as giving being to a Contract, and something more, wherein the Consent is declared and proved.  
2. We have spoken susticiently before of Livery. The joining which we here intent, is, where many Agreements for one and the same thing are reduced into one Covenant. For many Agreements and Parts may be reduced into one Covenant, as well as many things. 
d Brit. ib. Brac. ib. n. 11.    

Of Bargain and Sale.  
TIT. XXIV.  
BArgain and Sale is, where there is an Agreement concerning a price between the Contracters, there being something received by the Buyer by way of Earnest, that being an Agreement of the Bargain and Sale contracted, unless there be a day given for payment, in which case it is not necessary. 
a Bro. Cont. 15. & Action sur le case, 60.  But if there be any Writing intervening, the Bargain and Sale cannot be perfect, unless it be delivered to the parties, and absolute: And where there is neither writing, intervening, nor any Delivery follows, they are at liberty, and the Contractors may without penalty recede. 
b Glan. l. 10. c. 14. Brac. l. 2. c. 27. n. 1. Flet l. 2. c. 58.  But if there be any thing given by way of Earnest before any Delivery, and the Buyer reputes of his Bargain, so that he desires to recede, he shall lose what he gave: And in case the Vender reputes, he shall make restitution double: 
c Glan. ib. & Brac. ib. n. 2.  But if the price be paid, or part of it, and Delivery follows, the Bargain and Sale shall be perfect. Not can either party recede under pretence of nonpayment of the price in part, or in the whole: But the Vendor may have his Action, and recover what is wanting of the price, but not the thing itself. 
d Id. ib.   
1. Now it is necessary that the thing sold be certain or reducible to certainty, and a certain price agreed upon: For there can be no Bargain without a price certain. Nor can demand be of a thing uncertain: but if it be agreed between the parties, that there shall be so much paid for the thing bought, as such a one shall value it at, unless that party will sell the price: Or in case he refuse, or be not able, there shall be no Bargain and Sale, as not having agreed upon any price. 
e Brac. ib. n. 1. Flet. l. 2. c. 58. Dyer, fol. 91. n. 11.   
2. And to the making up of a Bargain and Sale, it seems consistent with our Law, that the price for the thing bought be in money numbered, otherwise it is but a Contract in the nature of an Exchange: 
f Fulb. par. c. Exch. 32. Perk. 244.  Although if such things be exchanged as cannot conveniently be transferred without writing. The word Exchange ought necessarily to be inserted, to make an Exchange: 
g Fulb. ib. h Bro, Exch. 2. 12.  And it may be the reason is, because the word Exchange implies a warranty. (h)  
3. In a Bargain and Sale before and after Delivery, he who hath the thing runs the hazard of it, unless it be otherwise agreed from the beginning; because indeed he who hath not as yet delivered the thing to the Buyer is still reputed Master of it. For by Liveries & Uses the Owner-ship is transferred: For Example, If an Ox die before it be delivered, or a House be consumed with Fire, or Land in part or whole be drowned and lost, it seems that all the hazard shall be upon the Vendor. On the contrary, if after Sale, and before Delivery any thing happen to be added to a Fe●, the profit shall redound to the Vendor; For the Commodities ought to go the same way with the Discommodities, and the profits ought to be his who runs the hazard and danger. 
i Brac. & Glan ib.  But there needs no Livery where Lands are sold by Deed enrolled, 
k N. Terms, Bargain. Dr. Stu. l. 1. c. 7., Lit. l. 1. c. 8.  or alienated by Exchange.  
4. Bargain and Sale may also be contracted among some, either Pure or Conditionally: As if the Buyer like a thing in a certain time, it shall be his for so much money, otherwise that it should be restored. 
l Brac. l. 2. c. 27. n. 2. Flet. l. 2. c. 58.   
5. But if one buy a thing sacred of a Vendor in regard the Contract cannot stand, the Buyer shall recover as to his Interest against the Vendor, that he be not deceived, although the Buyer be obliged to know what and whose the thing is which he buyeth, whether sacred or not, and whether bound or not. 
m jidem. ib.   
6. But if a Vendor sell any thing for sound, and without maim, which afterwards proves maimed and unsound, and that it can be proved by the Buyer to have been so at the time of the Contract made, the Vendor is obliged to take it again. But if it were sound and without maim at the sale, the Vendor is not responsible for what shall happen afterwards. 
n Glan. l. 10. c. 14. Brac. l. 2. c. 27. n. 2. F. N. B. 94. & Dr. & Stu. l. 2. c. 42. Flet. l. 1. c. 58. Dyer, fol. 75. n. 23.   
7. When any one sells a thing , as Land, and in the Sale promiseth it to be free, when as it is servile, or disengaged, and not bound, whereas it is bound and engaged. The Contract is not broken by this, but the Buyer may have his Action against the Vendor for non-performance of promise, which is alike good, if he assume to make good either for the quantity or quality, and afterwards the contrary be found. 
o Fulb. par. Barg. 15.   
8. The Vendor and his Heirs are bound to warrant to the Buyer and his Heirs the thing sold, whether it be movable or . 
p Glan. ib. c. 15. Brac. ib. & l. 5. tr. 4. Dyer, 75. n. 23. Flet. l. 7. c. 38. & l. 6. c. 23.  Though some are of opinion that they are not obliged to warranty by the Law, but in cases expressed by the Law. 
q Fulb. ib. Coo. l. 3. Fermors ca●e, 78. & l. 4. Nokes case, 80.   
9 Things incorporeal cannot with us be sold or bought without writing. 
r Dr. & Stu. l. 1. c. 8.   
10. Meats which stink, and are putrified, and Commodities which are fallacious are prohibited to be exposed to sale; 
s 13. H. 4. c. 1. 11. E. 4. c. 7. 1. R. 9 c. 1. with others.  but these things belong to the public Law.  
11. The property of things alienated in Fairs, or public Markets, are altered, unless they be the Kings, or that the Contracts be by Covin and Collusion: so that in this case the Buyer is free from all fear of Eviction, 
t Dr. & Stu. l. 1. c. 25. & l. 2. c. 47. & 49.  provided there be such things observed in the buying of Horses as the Law requires. 
u Brac. l. 2. c. 28. Cromp. Juri●d. 221. Dyer, fol. 99 n. 66.   
12. And lastly, as Actions cannot be given, so neither can they be sold, except it be to the King, or by the King. 
w Blow. 79. Bro. chosein Action, 4.    

Of Letting and Hiring.  
TIT. XXV.  
LEtting and Hiring is next to Bargain and Sale, because as Bargain and Sale is contracted after the price is agreed upon, so Letting and Hiring is for a set Hire or Rent: 
a Glan. l. 10. c. 19 Brac. l. 2. c. 28.  For when a man lets his Estate to another for a certain Term and Rent, the Lessor is bound to give the thing leased for use, and the Lessee to pay his Rent. 
b Brac. ib. Flet. l. 2. c. 59   
1. Rend doth chief consist in monies numbered, yet it may also be in Corn, and the like: 
c 34. Eliz. c. 11.  And sometimes the sole Reward or Hire is in Fealty. 
d Lit. l. 1. c. 7.  But when Land is leased for Land, this is an Exchange. 
e Id. ib.   
2. Emphytensis, which the Romans took for either Bargain and Sale, or Letting and Hiring promiscuously, we call Fee-farm, of which we have spoken enough before.  
3. We also do let and hire Movables, as Horses, Oxen, Sheep, 
f F. N. B. 86 D. Bro. Leases, 23.  and Immovables, as Land: 
g F. N. B. 146. K. Lit. l. 1. c. 8.  So also things incorporeal, as right of Pasture, 
h F. N. B. foe. 86. B. Entries, Agistment.  Tithes, 
i Terms, v. lease.  but those not without writing, 
k Bro. lease, 1. 5. 12. 17. & 21. 23. H. 6. c. 10.  (unless any corporeal thing, as a Church, Churhyard, Glebe, Parsonage houses, etc. be chiefly and particularly let; for so under the name of the appurtinences, Tithes and Oblations pass likewise.) 
l Bro. lease, 15. 20.  So also Services and Labours: 
m Entries, Servant. Dr. & Stu. l. 2. c. 38.  but not safely, as to the quantity, for that Errors are easily this way contracted.  
4. He who hires , Gold, or Silver, or other Ornaments, or Oxen, either giving or promising hire, such a care is required of him, as a diligent Master of a Family would have; which being had, if the thing by accident happen to be lost, he is not bound to make restitution, unless it be agreed otherwise. Nor is it sufficient that he have such a care of them as of his own goods. 
o Brac. ib. Dr. & Stu. l. 1. c. 23. l. 2. 6. 4. Flet. l. 2. c. 59   
5. Letting of Lands and Immovables is at this day the greatest occasion of suits of all others, wherefore it is requisite that we should speak more largely in this place of these particulars. Every one may make a lease of Lands, who holds them in Fee, whether he have Fee-simple, or Fee-tail, and whether he be possessed in his own Right, in the Right of his Wise, or of a Church, 
p 32. H. 8. c. 28.  which is also true in those who hold as Partners: 
q Lit. l. 3. c. 3  So also Cestuy qui use, 
r Id. ib. c. 5.  a body politic may make a lease, but not without writing. 
s Bro. lease, 32. 42.  As also he who hath a , 
t Id. ib. 4.  or a Lease, provided he exceed not his term, and Guardians until their Pupils and Wards come to age.  
6. He that hath a Fee-simple in his own Right, may make a lease for as many years as he pleaseth, provided it be not to a Body politic, lest by exceeding it seem a Demise in Mortmain. 
u Bro. ib. 47.  He who hath a Fee-tail in his own, or Fee-simple in another's Right, viz. either in the right of a Church, or of his Wife, is tied a little more strictly, for that they cannot lease Land by a new lease which is already let for above the term of a year. Nor any which were not usually wont to be let within the space of 20. years past, nor those for a less rent than they formerly were let for, or for a longer term than 21. years, or three lives, and that without permission of waste. To these also may be added, that he who hath a Fee in right of his Wife may let it jointly with his Wife, but hath no power to alienate the Rent, but it shall come to the right Heir of his wife after her decease. 
w 32. H. 8. c. 28.   
7. Archbishops & Bishops cannot let the Lands of their Churches for above 21. years, or 3. lives, to be accounted from the beginning of the lease, nor for less Rent than it formerly went for, nor for less than formerly it used to be let for. 
x 1 Eliz. not printed, Dyer, fo. 145. n. 65.   
8. Masters and Fellows of Colleges, Deans and Chapters, Wardens of Hospitals, and all Ecclesiastical persons are prohibted 
y 13. Eliz. c. 10.  to let their Church, or College Lands for more than 3. lives, or 21. years, to be accounted from the beginning of the lease, [nor this without their private Statutes permit.] Nor so, unless the lease which is on foot [if there be any] be within three years of expiring. 
z 18. Eliz. c. 11.   
Besides, the Colleges of both Universities, as of Eton and Winchester, are obliged to take the third part of their Rent in Corn: 
a 14. Eliz. c. 11.  Yet are they not prohibited from letting freely those Houses which they have in any City, Burrough, Town corporate, or public Market Town, with the Lands belonging to them (provided they exceed not ten Acres) according to the Common Law of England, if it be not contrary to the private Statutes of their Colleges. 
b Id. ib.   
9 It is not without reason questioned, whether a Prebendary of a Cathedral Church may lawfully let part of his Prebendary, procuring the said Lease to be confirmed by the Dean and Chapter, without any consent of the Bishop, the Bishop being both Patron and Ordinary of every Prebendary: but continual and daily Custom hath rendered his consent unnecessary and useless. 
c Dy●r, fol. 61. n. 30.   
10. Those who have Benefices, cannot make a Lease for any time longer than they reside there (the liberty of being absent 80. days every year, being always permitted them) unless by the Laws they are permitted to have two; In which case in regard he cannot possible continually reside at both, he may let one to his Curate. 
d 13. Eliz. c. 20.   
11. Lands and Tenements are often let for the life of the Lessee, 
e Lit. l. 1. c. 6.  or another's life, 
f Id. ib.  or for more lives, 
g Id. ib.  or for term of years, 
h Id. ib.  or lastly for a life: and afterwards [that being expired] for a term of years, 
i Bro. leas. 51.  and that either by writing, or without, 
k Littl. ib.  nor by Indenture only but by Deed-Pol. 
l F, N, B: 148:   
12. But if any one letteth his Lands by writing or without, not mentioning any term but giving the Lessee possession, He is presumed to let them for the life of the Lessee. 
m Lit. l. 2: c. l, Blow 152.   
13. There is no need of giving possession to a Lessee for years, for he may enter by virtue of his Lease (unless besides the Lease there be a Grant of a Remainder to another for life, or in fee in the same Deed 
n Lit. l. 1: c. 7.  for if a man makes a Lease of lands for years, though he were Lessee before, yet he doth rightly take possession of the said Lands by this means. 
o Id: ib:   
14. Lessor is bound to warranty to the Lessee; for the Lessee being ejected before the term ended may have his Action of Covenant against the Lessor, 
p F: N: B: fo: 145: M: Dier 328: n: 8:  and that whether he be disseised by the Lessor himself or by a more ancient Title, nor only he, but his Assignee. 
q Id. ib:   
15. But if a third person eject him against Right, he shall recover damages against the Ejector 
r Id: ib:  unless the Lessor agreed by Indenture, that in case the Lessee were ejected he should have his action of Covenant against him. 
s Id: id:   
16. Lessee for life by Indenture, in regard he hath a , shall not have an action of Covenant against the Lessor, in case he eject him before his term ended, but an Assize. 
t Id. ib.   
17. Where a Lease is but for a year, and so from year to year, the Lessor cannot eject the Lessee at the end of the Term, nor can the Lessee go out against the will of the Lessor, For whosoever of them would recede from the agreement, aught to give the other warning, 
u Bro. lease 13. 22.   
18. Lessor cannot remove his Tenant at Will, so as to hinder him from taking the profits of his Seed or Corn sown, or without granting him convenient time to remove his Household stuff, because the time is well enough force-seen and known to him. 
w Lit. ib.   
19 All persons may regularly take forms, except spiritual, who are prohibited, unless it be for the maintenance of their Families. 
x 21. H. 8. c. 13.   
20. Lessee is obliged to pay his Rent to the Lessor, which if he shall fail to do; the Lessor during the Term may distrain, and this seems true, whether it be agreed so or not: For whatsoever is brought by the Lessee into the Tenement is annexed as a pledge for the Rent, 
y Dr. Stu. l. 2. c, 9 Lit. ib. Brac l. 2. c. 28. n. 1.  but after the term he cannot, 
z Lit. l. 1. c. 5. Flet. l. 2. c. 59  the payment of Rent admits no satisfaction, for the Lessee is not freed by paying before the day. 
a Coo. Bevills' case, foe 10. a   
If Tenant of a Fee-farm doth not occupy the Land leased for the space of two years, by reason whereof there can be no distress, the Lessor upon his Action may recover it into his own hands. 
b 6 E. 1. c. 4. Westm. 2. c. 21. F: N: B: fo: 209: G:   
22. But in most Leases whether for years, 〈◊〉 life, it is covenanted, that in case the ●ent be behind at a certain day yearly, 〈◊〉 half yearly, unpaid, that the Lessor may ●●ter & reastume the possession to himself, or ●●at the Lease shall forthwith become void ●●d expire. In the first case, if the Rent at ●●e day assigned be not paid; being lawfully demanded, upon the ground, by the Les●●r, not only he in his life time but after his ●eath (unless he distrained in his life time 〈◊〉 the Rent, or received it upon tender 
c Coo. l. 3. Pennants' case.  〈◊〉 Heir may enter; otherwise not, 
d Dr. Stu, l. 1. c. 20. Dier foe 51. n. 17.  for ●ent aught to be demanded, 
e Perk. 836.  nor in this ●●se doth the day demand for the man, but 〈◊〉 the condition be that the Rent shall be ●●id in any extrinsecall place, there needs 〈◊〉 demand, according to the opinion of ●●me, 
f Dier l. 8. n. 23. 24.  though others more modern affirm ●●e contrary. 
g Coo. l. 4. Burroughes case foe. 73   
23. If Husband and Wife hire land at too ●●ere a Rent, the Husband dying before the ●earm, the Wife may leave it, and if the Hus●and survive the wife and die, his Execu●●rs have the same liberty. If the Testotors Goods are not sufficient to satisfy the other Creditors (the Rent being computed for 〈◊〉 term of years. 
h Dr. Stu. l. 2. c. 33. Dier foe 146. n. 70.   
24. If a man make a Lease for a year, upon Condition that the Rent shall be paid at Michaellmas, and in the mean time give a general release to the Lessee of all Actions ●nd Demands: this doth not remit the rent 
i Lit. l, 3. c, 8.  although it seems something strange.  
25. A Lessee is not only bound to the payment of Rent, 
k Dier. fo: 4, n: 1.  but also to use well the thing leased: 
l Id. foe 324. n, 34,  so that if either he, or a third person commits Waste, he is liable unto the Lessor according to the penalty of the Statute, 
m 6 E: 1, c, 5, Dier, foe, 90, n, 9, and 10, and foe, 108, n, 31, and foe: 198, n: 43.  and is left to take his remedy against the third person, 
n Dr. Stu, l, 7, c, 31, and l, 2, c, 4,  unless he be a● Infant; 
o Id, l, 1, c, 17,  but it is not waste, to fell timber for necessary reapa●tions. 
p Id, ib,   
26. In sel●ing and hiring, the Law is the same as to the mutual obligation of persons, as in Covenants. And therefore if the Lessee undertakes for himself to do, or not do anything, his Executors or Assigns not being named, himself is only bound, and they free from any manner of Obligation; 
q Dier, foe, 65, n, 8,  but this is sometimes disputable: A Lessee covenants with his Lessor, that if either he, his Executors, or Assigns, alienate the Lands leased to another, that then it shall be lawful for the Lessor or his Heirs to re-enter, and to eject the Lessee, his Executors or Assigns; and not long after the Lessee falls sick, and by his last will constitutes his wife his Executrix, and dies; the wife marries a second husband who alienates her right, and term in the said Lands; and it was much questioned, whether in this case the Lessor may enter in regard this second Husband was neither Executor nor Assignee of the first. But in the end it was determined for the Lessor, because the second Husband was in this case adjudged Assignee in Law though not in fact. 
r Dier, foe 6, n, 5,   
27. If a Lessee oblige himself to leave houses in repair at the end of his term, the Lessor cannot bring his action of Covenant until the Term be ended, although the Lessee should pull the houses down, yet he may bring an Action of waste. 
s F. n. b. foe 145. K.   
28. Lessee is not obliged against a greater force, or against tempests, or Incursions of enemies, unless he do expressly oblige himself to it. 
t Dr. & St●●. l. 2. c. 4. Dier foe 33. n. 10, 11. fo. 36. n 35. fo. 56. n. 14. 12 H. 8. fo. 1. b. v. Lit. l. 1. c. 8.   
29. Tenant at will is not bound to repararations as Tenant for years; (u) but if he commits waste, he is liable to an Action of Trespass. 
w id. ib. Dier foe 90 n. 9, 10.    

Of Partners or Fellowship  
TIT. XXVI.  
OUr judicious Lawyers are very frequent in disputing the Rights of those partners or fellows, who hold Lands or other things pro indiviso; and these they call either Partners, Joint-tenants, or Tenants in Common. 
a Little. l. 3. c. 2, 3, 4.   
1. Partners are either by the Law, or by Custom by law, 
b Terms. v. Parceners & Little. ib.  & two or more women of the same degree, who for defect of Heirs Males succeed by equal Right in the inheritance of their Ancestors, or else the sons of two women to whom Lands not formerly divided by their mothers, descend 
c Little. l. 3. c. 1. and 2.  by Custom, are those who from the Custom of divers Provinces which we call Gavell kind do equally succeed their Ancestors, whether they be brothers, (or for default of them) sisters, N●ices or Aunts.  
2. Joint-tenant are either called so properly, or improperly, 
e Instit. Jur. Com. c. 15. Dier foe 67. n. 18. & fo. 160. n. 43.  properly are those who hold a Fee, or Freehold or any real▪ Cartel by force of the same Title, pro indiviso, improperly are those which possess any personal Chattel so, and those are thus joined, either by their own will solely; as purchasing the Premises with their own monies, and so possessing them pro, indiviso, or else by the will and bounty of others, as where one gives any thing to two or more jointly, (
f Lit. l. 3. c. 4.  unless the Donees be a Body Politic, 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 ways, the former being joined by necessity, and are called Partners merely in respect of their inheritance: Joint-tenants have their name either from purchase or Gift, and are joined 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 several inheritances: as where Lands are given to two men, or two women, and to the Heirs of their bodies, in this Case 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 I●st. c. 15.  and if one of the Donees die without Heir, his part for defect of an Heir, 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, Chattels personal or real, jointly, but by several 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 enjoy their former appellation.  
6. Wherefore Tenants in Common differ from partners in this, that these do not possess any thing in Common by Right of inheritance, as do the others: nor are they joined 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 unequal, that they cannot admit of any conjunction, such are bodies politic 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 mutual consent, 
o Dier foe 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 compel 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 courtesy, may compel 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 only is observable, that if Partition be made by consent, one or more of the Partners being under age, it may afterwards be corrected whe● 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 unequal Partition be made by the Husband of coheirs 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 o● the Partners Estate lie evicted by Law, He or she whose part it was, may compel the rest to a new Partition, and recover a lawful 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, than 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 lawful remedy, if they be hindered 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 Burrow, where Lands and Tenemenrs are divisible by Will, and one of them devices 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 ●●crease, and out of Descent cannot any way 〈◊〉 conveyed to another by a Will (which ●●es not its Operation till the Death 〈◊〉 the Testator) from him that claims the ●●ole. 
x Littl: l: 3: c: 3:   
13. Two take a Lease jointly for years ●●th this condition agreed to between the ●●ssor and them, that if the Lessees die be●●●e the Term ended, the Lease shall be ●●id. The Lessees make Division: and one 〈◊〉 them alienateth his part, and dies, the 〈◊〉 Lessor cannot reassume the part of him ●●at died, but the Alience shall hold it du●ing the life of him that surviveth: nor hath occupation in this Case any force; but it two ●●ke a Lease for their lives, and make par●●tion, either of them dying, his part immediately reverts to the Lessor. 
y Dier foe: 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 only the Rent reserved upon that moiety, and it was adjudged by the Justices, that the survivor 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 whi●● he holds, pro Indiviso, with any Rend long●● then for life, but a Partner may, and the r●●son is, it cannot prejudice his fellow or 〈◊〉 Heir, who derives his Right not from hi● but from the Donor, but Partners succeedin● one the other for defect of Heirs, may fro● one anotherr derive their Right. 
a Littl. ib. c. 3.   
16. Which notwitstanding in letting 〈◊〉 clearly otherwise, for if one of the Donee● who holds, pro Indiviso, to him and his Hei●● let out his Right for a complete Term, 〈◊〉 dies, the Lessee after his death may retain 〈◊〉 during the Term, nay he may enter into t●● Lands, although they were not delivered unto him in the Lessors life time, or an● ways possessed by him, 
b Id. ib.  and the reason 〈◊〉 diversity between a Rend Charge, and a Lease is judiciously given by Littleton, 
c Id. ib.  which 〈◊〉 leave to be considered by the studious.  
17. If there be two Joint-tenants of a Silva c●dna, and either of them, the Wood being sold, retain the whole money to himself, his fellow can have no Action against him, (d) nor could Joint-tenants or Tenants 
Dr. Stu. l. 1. c. 14.  in Common formerly be forced to make Partition, 
e Little. ib.  unless it were by the Custom of the place, 
f F. n. b. 62. C.  but this is otherwise at present, 
g 31 H. 8. c. 1 32 H. 8. c. 32.  and yet Joint-tenant, or Tenant in Common being ejected by their fellow, may have an Action of forcible Entry against him.  
18. Tenants in Common, for that they are in by divers Titles, if they be ejected by a stranger, must bring their Actions severally, which in Joint-tenants is otherwise, 
h Little. ib.  yet Tenant in Common may sue jointly for a thing which cannot be divided. 
i Bro. Tenants in come 2. 5. and. 25.   
19 This is the difference between those who hold chattels real, and those who hold chattels personal in common, that they being ejected by their fellow, may have an Ejection firm, or an Ejection custodiae terrarum, as their case requires, but the other cannot, but are left to take them themselves, when opportunity happens. 
k Little. ib.   
20. Tenants in common of chattels, real or personal may leave their part to their Executors. 
l F. n. b. 118 H.   
21. If two possess Goods in common, and one of them deliver them to a third person, he only may have his Action of account against the detainer, and not his fellow, 
m Id. ib.   
22. this is equally true amongst partners, joint-tenants, and Tenants in common, that they must bear an equal burden for that which they possess in common, for if one or more refuse to contribute, the rest may bring their Actions against the refusers. 
n Id. 162 & 127.   
23. Lastly, there is another kind of Tenure in Common with us, which comes either by reason of agreement, 
o Common in Grosse.  or of Tenements amongst those of the same Fee, 
p Common appendent, or appurtinent.  or sometimes of divers, 
q Common by reason of vicinage. Dier fo. 47. n. 12, 13.  for in many Manors, the Lord hath spacious and large grounds, in which every Tenant according to the rate of his Tenement, hath a Right of pasture, or of digging Turf. But in regard these kind of grounds for the conveniency of the Commonwealth, cannot admit of Partition, Every one who hath such a Right in them may, (if through covetousness they put in too great a number of ) be recalled to just and equal bounds. 
r F. n. b. f. 125    

Of Commandments and Attornments.  
TIT. XXVII.  
A Command may with us, as with the Civil Law be contracted six manner of ways, viz. by the sole cause of the Commander, 
a F. n. b. 121.  or of the Commander, and the party commanded, or of a third person, or of the Commander, and a third person, or of him that is commanded, & a third person, or lastly of the commander or master, the party commanded or servant, and a third person Examples might be easily given, but men's endeavours are not always accepted, and therefore this command is not much in use with us, wherefore these are to be implied from the Examples of letting, and other Contracts. 
b Glan l. 11. Brit. c. 28. New Book of Ent. Account, Attorn Commandment, Terms of the law, v. Account Dr. Stu. l. 2. c. 24. Flet. l. 2. c, 71, 72.   
1. The Servant cannot have his Action against his Master for commanding him any thing unjust, 
c Brit. c. 28. Flet. l. 6. c. 27.  but a third person may if the command bring him any prciudice, 
d Brac. l. 4. tr. 1. c. 10. 26, 27.  for that the Law supposeth the Act of the Servant to be the Act of the Master. 
e Plow. 289, 290.   
2. There is nothing hinders with us, but that a command may be deferred until a lay, or be done upon condition, and is extinguished either by the death of the Master or Servant. 
f Flet. l. 3. c. 15.   
3. The ends of a Command are diligently to be looked after, and observed, and ●●pt. 
g Perk. 118. Fulb. pural. c. Contracts, fol. 3. Blow. fo. 14.    

Of Obligations which arise from employed Contracts.  
TIT. XXVIII.  
OBligations by our Law arise from employed Contracts many ways: As for transacting business Tutelary, dividing of Common. But as for the transacting of business, and the like: 
a Dr. Stu. l. 2. c. 51. Brac. l. 3. tr. ●. c. 2. n. 10. Flet. l. 2. c 60.  that which is done by the command, or for the sake of one that is absent [if Lawyers have informed me aright,] is rather left to the conscience and integrity of him whose business it is, then to an Action to be satisfied. Nay (which is more to be admired) it oft happens, that for doing well a man may incur the guilt of a Trespass: As if he drive his Neighbours Cattles out of another's Corn, or carry Tithes exposed to Cattles into the Parson's Barn. 
b Dyer, foe 36. n. 38, 39   
1. Guardians may lieu the debtors of their Pupils: And the Guardianship being ended, as they are liable to render accounts, so may they claim the Expenses which they were at, by reason of their Office, of their Pupils. 
c F. N. B. fol. 118. B. Terms, v. Guard in socage, Flet. l. 3. c. 15.   
2. A Donee also who sues a Donee for the partition of a thing given jointly to both; and a Partner who brings a Writ of partition against his fellows, may be referred hither. 
d Flet. l. 2. c. 60.   
3. Furthermore, Executors may sue the Debtors of their Testators, and may be sued by the Creditors and Legatees, 
e Id. foe 119. M. 121. O. 145 D. H.  which is true also in the Administrators of those who die intestate: 
f Id. foe 120. D.  And in these successions also, whole Predecessors owed money, or had moneys owing to them in the name of their Abbeys: 
g Id. foe 121. K. & 122. E.  And in the Husband, whose Wife was indebted before Marriage, or had money owing unto her. 
h Id. 121. C.   
4. A Keeper of a Prison, who ●ets a Prisoner for Debt at liberty, renders himself bound to the Creditor for the said money. 
i Id. 121. A. P. 131. B. V Dyer, 175. n. 46 47. & fol. 278. n. 5.   
5. An Heir is bound also by the Obligation of his Ancestor, if he be named in it, and receives sufficient from him to satisfy, 
k F. N. B. 120. l.  which however I suppose to be true only where the Movables will not satisfy debts, or where the Executors are not mentioned. An Heir also is bound to warrant Lands alienated by his Ancestor, with Charter of warranty, if he be named in the Charter. 
l Id. 134. D.   
6. If one lets Lands for a certain Rent, and deviseth the reversion of them to another by Will, the Legatee may claim the Rent of the Lessee. 
m Id. 121. N.   
7. The King's Customer having the King's money in his hands, is Debtor to him to whom the King by his Charter hath granted an annuity to be received yearly from such a Customer. 
n Id. ib. F.   
8. Lastly, we are obliged by the Contracts of our Wives, Children, and Servants, for Wares taken in our names, and converted to our uses, as if we had made the Contracts ourselves. 
o Dr. Stu. l. 2. c. 42. Fulb. par. c. contr. fol. 3, 4. Blow. fol. 11. Dyer, 234. n. 17.    

By what Persons an Obligation is acquired unto us.  
TIT. XXIX.  
AN Obligation is acquired unto us by Procurators, and by Children, which we have under our power and jurisdiction; by ourselves and children of our own, and by Freemen who serve us, and that by two causes, Viz. by works of their own, and for something which is ours. Also by our own proper servants, or servants which are common, or in which we have an use, or others which we do bona fide possess, provided they covenant and bargain in our names. 
a Brac. l. 3. tr. 1. c. 2. n. 12. Flet. l. 2. c. 60.    

By what means an Obligation is taken off.  
TIT. XXX.  
AN Obligation is taken off by Payment, because every Obligation is removed, when that which was due is paid, whether he pays it who owes it, or another for him: And that whether the Debtor know it or not, or whether he be willing or not, 
a Brac. ib. ●. 1. Flet. ib.  which is only true, according to some, where the writing [if there were any] be canceled, or an Acquittance be to be shown by the debtor. 
b Dr. Stu. l. 1. t. 12.  To the explanation of which assertion, some put a difference between a simple and Conditional Obligation, and affirm, that the payment of a conditional Obligation may be proved by Witnesses, although the writing remain entire, and no Acquittance be shown: And that because the Party being bound to a certain time under a penalty, he cannot without danger expect the delivery of the Writing or Acquittance, seeing he is more strictly bound, then if the Obligation were simple: So if the party pay, his Surety is free: And so on the contrary. 
c Brac. ib.   
1. An Obligation is taken off also by releaseth, which is an imaginary payment: As if it be said; have you received all that I own you upon any cause whatsoever? And it be answered, or (if the Debt be in writing) written, I have acknowledged to have received all. 
d Perk. 749, 750. Dyer, 222 n. 22.  And this may be done for part of a Debt, as well as for the whole: As also all other things whatsoever are reduced into a Covenant, may be taken off thus, and in the same way which Obligations are. They may also be renewed, and reduced into another Obligation, or more into one, as if a certain sum of money be promised for many Debts, Causes, and Obligations. 
e Brac. ib. n. 13. Lit. l. 3. c. 8.  There is also a Release in Law, as where a man makes his Debtor his Executor; for in this case he for gives the Debt, 
f Bro. Testam. 118.  which is so fare true, that it is whether he take upon him the Execution of the office, or not. 
g Plow. 184.   
2. Also if Lands be charged with an Annuity, and the Debtor neglect payment for some years, and afterwards upon the payment of one year's Rent obtain an Acquittance from the Creditor, the action for the residue is utterly extinguished. 
h Dyer, f. 271. n. 26.   
3. So also by renewing of Altering, as where an Obligation is transferred from one person to another, who cannot be bound, it is wholly lost: As from the person of one who is of age to another who is an Infant: And in renewing or altering, there may intervene a surety and a penalty, as also a Condition: That if the Surety do not well and truly pay, the Princiall shall remain. 
i Brac. l. 3. t●. 1. c. 2. n. 13.   
4. In brief, it is to be observed, that an Obligation may be dissolved the same way, and by the same means by which it is contracted, if it arise from a Contract, or any such like thing, namely by the thing, as if the thing be restored, by words, as if it be to the contrary, and in contrary words. 
k Dyer, foe 75: n. 25, 26, etc.  By writing; As if I writ myself to owe money, and the Debtor writ that he hath received: By consent, as if they agree mutually to recede from the Contract: By delivery, as in case the thing be re-delivered: By joining, as in case it be done on the contrary. 
l Brac. ib.   
5. Bracton also declares that an Obligation may be taken away by sundry exceptions, and that many ways, whom any one that pleaseth may read. 
m Id. ib.   
6. There is also another way with us, which we call waging of Law; for if any one challengeth money of me upon a simple contract, I may wage my Law against him, 
n Id. l. 5. tr. 5. c. 13. n. 3.  i. c. I may promise to come into the Court at a day judicially assigned, and perform the Law. Now to perform the Law, is in this case; To do that which the Law requires, namely to make Oath, that neither the sum required, nor any part of it is due: And to bring others with me who shall affirm upon Oath likewise, that they believe the Oath I have taken to be true. 
o Brit. c. 28. F. N. B. 122. l.  Now this is nothing else but a Judicial transaction which our Laws permit us.   
The End of the Third Book.   

THE Fourth Book of the Institutes of the Laws of ENGLAND.  

Of Obligations arising from Crimes.  
TIT. 1.  
THERE are Obligations also which arise from Crimes, or from things of the same nature. Now Crimes and Trespasses proceeding from words and facts, are to be distinguished according to the intention and will where with they are committed; for the will and the intention are the Interpreters of the facts: And from these Delinquencies proceed greater crimes, as Treason, Homicide, Theft, Rapine, etc. 
a Brac. l. 3. tr. 1. c. 2. n. 14.  (of which we shall discourse hereafter.) Or lesser crimes, as Injuries and Trespasses; for under these all our Writers comprehend Obligations arising from private crimes.  
1. The Civil Law punisheth manifest Theft by adjudging restitution to be made , and Theft less manifest by rendering two fold. But the Laws of England punish neither with less than death, provided the thing stolen be to the value of 12. pence. 
b Fortes●ue, c. 46. Bro. Crown. 2.   
2. Theft is divided into Larceny and Robbery: Larceny is defined: The taking away of Chattels personal in the absence of the Owner, and is either Crand or Petite according to the thing taken. Grand, is when the Movable that is stolen exceeds the value of twelve pence. Petite is, when it is under the value. 
c Westm. l. 2. tit. Indictments s. 58. Spec. Justice. 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 public 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 refer this ●ather to the Order of public Judgements.  
4. Yet we have thought fit to observe here, That it is in his choice who loseth any thing by Theft, whether he will prosecute the party civilly or criminally. For dissembling the Theft, he may suppose the Thief to have found the thing by accident, and so detain it to himself, and so recover the thing itself, 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 criminal prosecutions we shall speak hereafter.   

Of things taken by force.  
TIT. II.  
THe word Trespass 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 accompanied 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 unlawful act, though not violent, but accidental; or (to use their own words) su●… casu, 
b F. N. B. foe. 92. E. Terms, v. Action, sur le case.  whence the form of Action in the first case hath always these words, [vi & armis] and in the second [contra pa●….] But the Plaintiff may if he please, dissemble the force, as where he brings his Action in the Sheriff's Court, who hath no Cognisance, de vi & armis: And though he feign a lesser Trespass, 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. Trespass, sur le case. 92.  Now we have thought it congruous enough to refer violent Trespass 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, affix a contumely also upon the person injured, to a third Title.  
1. Now the Action for Goods taken by force, or de vi & a●m●s, lies as well for things taken by force which are inanimate as Cats, Ploughs, etc. As things animate, as Oxen, Sheep, and those not only tame, but wild also, if they be in our Custody and Jurisdiction. As Coneys 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 Husband's Goods, 
h Id. 89. O.  for the stealing away of a Son or a Daughter, who is an Heir, 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 carried out of our Fees. 
m Id. 91. B. new ●oo. Entr. Trespass, Bro. Tresp. Fulb. Wrongs.   
2. And this Action is given for the repairing the loss lustained; & that not only against the party that did it, but against those that commanded the doing of it, as in every Trespass 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 personal and penal.   

Of the Aquilian Law.  
TIT. III.  
Trespass 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 cain's Aquilius was the Author, being Tribune of the People; of this popular Law, by which these trespasses were punished; though they refer this to the Title of injuries.  
1. Now he who damnifies the Estate of condition of another, commits a Trespass 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 another's Ship or Vessel laden with Corn, or other Merchandise is overturned, 
c Id. 92: F  moreover an Attorney or Counsellor at Law, who through ignorance or deceit jooseth his Client's cause, 
d Bo: Entr. Action Sur le case in Attorney:  a Barber who shaves another's Beard ill, or with a foul Raisor, 
e Id: in Barber:  a Physician or Chirurgeon, who either ignorantly or maliciously handles a sick or wounded person, 
f Id. in. Phisi.  a Gaoler who useth a Prisoner more hardly than he ought, 
g F. N. B. 93.  he who distrains the Cattles of another's Plough, where he may make other reasonable distress, 
h Dier. fo. 312. n. 86.  or he who having justly taken another's Cattell by distress doth not carry them to an open Pound, but to a place unknown, the Rectory of a Church, a Fortress, or into another County that they cannot be redeemed or replevined by their Owners, 
i F. N. B. in the Writ of Repleg. aver●: so: 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 freeholder who commits waste. 
l Id. foe 36. n. 38. and fo. 256. n. 10.  But this is special 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 expressly upon this subject, then trouble you with too great a glut and multitude of examples. 
n Boo. Entr. 10. Action Sur le case, and Trespass, Bro. Tresp. F. N. B. fo. 85. and 92. Fulb. foe. 69. Blow. second part 12. 13. Dier foe 36. n. 38. f. 208. n. 14. fo. 285. n. 40.   
2 He also is liable to this action who damnifies or hurts another by accident, though it be not through any fault and dece●t. 
o Bract. l. 3. tr. 1. c. 36. Flet. l. 4. c. 17.    

Of Trespasses and Injuries  
TIT. IU.  
WE have declared how that under this general notion of trespass we comprehend every breach of the Law, but we shall treat here especially, of that which redounds to the disparagement and contumely of the person injured, as when one strikes, beats, wounds, or manes another, 
a Bract. l. 3. c. 19 ●. 1. Flet. l. 2. c. 1.  or where without any force he asperceth the credit and reputation of another by approbrious words, 
b Id. ib. tr. 2. c. 24. n. 3. Flet. l. 4. c. 40, 41. Dier, foe 105. n. 15.  or by dispersing libels or falsely imprisoning him, 
c Dier foe 72. n. 6. fo. 75. n. 21. fo. 118 n. 77. fo. 236. n. 26.  or ill entreating him in any such like sort. 
d Bract. l. 3. c, 19   
1. They seem also to be guilty of this trespass, who plot and imagine unjustly against the lives or fortunes of others, whom our Lawyers call Conspirators. 
e Dier foe 85. n. 87. fo. 244. n. 61. F. N. B 114 G. 115. A. L. 116. M. N.   
2. Nor are we only capable of being injured in ourselves, but also in the persons of those who are under our power, as of wives, 
f Bro. Tresp. 43. Fulb. 79.  Children, 
g Id. 90.  and Servants, 
h Id. 80. and Bo. Enter. Trespass in Servant,  and Villains. 
i Bro. Villeinage 24. Trespass 53. Villeinage 24.   
3. A Trespass may be either greater or lesser according to the circumstances, now the circumstances we account seven, viz. the cause which moves the Actor, the Person as well of him that commits, as of him who sufers the injury, the Place, Time, Quality, Quantity, and event. And these are material, either as to the aggravating or diminishing the punishment. 
k Brac: l: 3: tr: 1: c: 6: Flet: l: 1: c: 16: and: l: 2: c: 1:   
4. We call a contumely, or slanderous and injurious words spoken against any nob●● man, Scandalum magnatum, which deserves 〈◊〉 greater punishment than any other; in regard of the Honour and Dignity of the person injured, 
l 3: E: 1: c: 33: 1: R: 2: c: 5: and 12: R: 2: c: 11:  unless it can be any way justly excused, 
m Dier: fo: 285: n: 37:  but it is much doubted whether slanders spoken against a Prince may be referred hither or not. 
n Id: 155: n: 19:   
5 This Action as all other Actions of trespass lies against him through whose fault, and by whose will the Injury was done. 
o Brac. l. 3. tr. 1 c. 6.  and is given for the repairing the damages of the party injured; as himself esteems them, and the Jury who in this case are Judges shall give. 
p Id. ib.   
6. Nor will words which are too general 
q Coo. l. 4. S●anhops case foe 15: n: 4:  or which have a dubious Interpretation, 
r Id. ib Hext c.  or false accusations before a competent 
s Id. ib, Bucklers case n, 3.  Judge, give colour to this Action, besides that it may be defended by Justification, 
t Flet. l. 4. c. 17:  and anulled by the dissimulation or tergiverfation of the party injured, 
u Brac. l. 4. tr. 1. c: 28:    

Of Obligations which arise from imputed Crimes.  
TIT. V.  
A Judge with us according to some makes the suit his own by misjudging, 
a Brac: l, 5, tr, 5, c: 15.  but at this day the party who is prejudiced and wronged by a Judgement; rather removes his cause to another Court, either by a Writ of Error, if the Court were a Court of Record, or otherwise by a Writ of false Judgement, and requires amendment and correction of the former sentence. 
b 27, Eliz. c, 8,   
1. Yet are there Obligations with us also from imputed crimes, as in case an under-Sheriff give false information to the King's Court, or make default in Executing the commands of the Justices, the Sheriff himself shall undergo the penalty, and not he, 
c Dr, Stu, l, 2, c: 24,  so also, if the King's Cupbearer do substitute others in his Office, he shall be obliged for their defaults, 
d 25, E, 3, Stat, 2, c, 21,  which holds true not only in the Exchequer, 
e 14, E, 3, Stat, 1, c, 9, Dier, 161, n, 45, and 238, n 38,  but in other Courts likewise where the Officers Deputies do not perform their duties, 
f Crom●, Juris, 111  as also in Escheators who substitute another whose Act they refuse to be obliged by. 
g 12, E, 4, c, 9, Coo. l, 4, Mittan case, foe 33,   
2. In the like manner are Hundreds of Counties obliged to the compensation of what is lost by Roberies committed within them; unless they apprehend the Thief: (b) And the Neighbouring Villiages, to any place, whose Trenches and Hedges are illegally thrown down by persons unknown, 
i Id: c. 45.   
3. So if a Servant by negligence burn his master's House and the neighbouring House to it, the Master is obliged; in like manner, is the Master of a common Inn, if his Servant 
k Ploughed. ●o. 9  or any one else within his Inn, 
l Dyer. fo. 158. n. 32. fo. 266. n. 9  take moneys from any Guest within the Inn, and the Keeper of a Prison, if any of his Servants suffer a Prisoner to escape, 
m Dr. Stu. l. 2. c. 24.  but of this you shall find many other kinds in our learned Writers. 
n Fulb. Para v. Contracts foe 3. and 4    

Of Actions.  
TIT. VI  
AN Action and a Writ are often times used promiscuously for a Writ wherein a party is summoned, containeth a breise and short narration of the Fact, which produ●●th an Action. But those Lawyers of ours who profess the Explication of Writs, asfirm them to be of a far larger extent than Actions 
a The Author of the Register, F. N. B. Bract. 1. 5. tr. 5. c. 17.  for that they contain many extrajudicial commands of the supreme power, in those businesses which concern either its self, 
b F. N. B. 232. 251. 147.  the Commonwealth, 
c Id. 170. 169. 164.  or private persons, 
d Id. 79. 164.  but the chief part of them are in cases of Judgement. Of which some constitute Judges, 
e Id. 110.  some require those who are already constituted to administer Judgement to those who demand, 
f Id. 153. 240.  some free men for a certain time from Judgements, for some special cause, 
g Id. 28.  some force those who are unwilling to give security to bear Judgement, 
h Id. 85.  some permit those who are in Suit, to substitute others, to prosecute for them, 
i Id. 156.  some prohibit and keep within compass those Judges who stretch their Jurisdictions too far, 
k Id. 39  some remove causes from one place to another. 
l Id. 70. 69.  Lastly some inform and commence process, 
m Regist. Origin.  and others prosecute and bring to an end those which are begun, 
n Reg. Judiciale.  now those which begin process are called original Writs, and those which promote and end process begun, judicial. 
o Regist. Brev.   
1. All Actions flow either from the common Law, or from Statutes, 
p Bro. Action popular & Sur le Statut.  but from which soever they flow, they are all either against the person, or the Estate, or both. 
q Brac. l. 2. c. 3. n. 234.   
2. Personal Actions are those which arise against any one from a Contract real or imputed, or from a crime real and proper or imputed. Now those Writs which are Issued forth in either case upon Contracts are for the most part these. A Writ of Covenant, 
r F. N. B. foe 145.  of Account, 
s Id. 116.  of Debt, 
t Id. 119.  of Detinue, 
u Id. 138.  of Trespass, 
w Id. 92.  upon the case, in which the assumption is contained. 
x Bro. Acton Sur le case 24.   
3. Those which are issued out in either case, as touching Crimes, are those of Trespass, 
y F. N. B. 85.  Deceit, 
z Id. 95.  breaking of a Park, 
a Id. 100  or Enclosure, Rescous, 
b Id. 105.  Attaint, 
c Id. 105.  Conspiracy, 
d Id. 114.  Champerty. 
e Id. 171.   
4. Real Actions are those who are maintainable against any one not obliged to us by any Right, because our estate corporal or incorporal, which is  is possessed by him, or as it were in his possession, which he may either restore or name the party in whose name he possesseth it: as if one demands of any one a thing certain, viz. a Fee, Lands, an Advowson, pretending one's self owner of it, and sues not for the value, or so much in the same kind, but the same specifical thing, and for this, that the demandant supposeth the thing his, and brings his Action against the Tenant, who denies it, the Action or Plea shall be against the thing itself. 
f Brac. l. 3. tr. 1. c. 3. n. 3.   
5. If the thing sued for be a moveabe, as an Ox, an Ass, a Garment, or something consisting either in weight or measure; although the Action or Plea at first seems to be as well against the thing, as the person, because a certain thing is sued for, and for that he who possesseth it is bound to restitution: yet in truth the Action is against the person, because the party sued is not precisely bound to restore the specifical thing, but under a disjunction, either the thing or its value, and he is freed by paying the value only, whether the thing be to be had or not, and therefore if any one claim a thing movable taken away upon any occasion, or lent, he ought in his Action to ascertain a value, otherwise it is of no force, nor signifieth any thing. 
g Brac. l. 3. tr. 1. c. 4. n. 4. Fleta. l. 2. c. 60.   
6. Now of Actions civil, and for a particular thing, as the claim of a particular thing, some are confessory, and some negative, confessory, as where one affirms a corporal or incorporal thing to be his, as a Fee: also: where he affirms himself to have a Right of going through his neighbour's Fee, or of drawing water, even whether his neighbour will or not, and it is therefore styled an Action for a particular thing, because he requires his particular incorporal thing, viz. his Right of a way through a Fee; and confessory, because it is by words of affirmation. But an Action negative is that which the Lord or owner of a Fee brings against one who is accustomed to have a way through his Fee, denying that he hath any such Right, and this Action is said to be for a particular thing; Because by it the Lord of the Fee doth by it claim his Liberty: and these kind of Actions are not for the Dominion or property of a thing, but only touching the Right of Estates. 
h Brac. ib. n. 7. Flet. l. 5. c. 37. 38, 39, 40.   
7. We have also something parallel to that which was anciently called Actio Rescissorla, for if any one be dispossessed of his Estate being in durance, and the Lands descend to the Heir of the Disseisor: the Disseisee hath liberty to recover his possession by his own proper Act, or (as we term it) to re-enter, and if Judgement be given against him, he may reverse it afterwards by a Writ of Error, because his absence was not through contempt, but by reason of Durance and imprisonment; and therefore it seems contrary to reason, that he should be prejudiced by any such Record, and there is the same law, for those who are in the King's service, or who are beyond the Seas in any business which concerns the Common wealth, and are in the mean time disscised being unable to make their continual claim, nay there are some who affirm that he who is beyond Seas about 
i Litt. l. 3 c. continual claim.  his own business if he be disseised, may upon his return upon his own authority reenter upon the Heir of the Disseisor, without bringing his Assize. 
k id. ibid.   
8. And there is something likewise which answers to that same, Actio Pauliana, and which is afforded by a particular act of Parliament, 
l 13 Eliz. c. 5.  which renders all manner of alienations of Lands and Goods, made by the Debtor to defraud the Creditor, void, and of none effect, and moreover inflicts a penalty upon all those who are guilty of it, and who defend it as lawful.  
9 Nor do we want that which equals the ancient Actio Serviana, for the Lestor may of proper Right distrain upon goods which are brought upon his Fee; and detain them until his Rent be satisfied, because we also do tacitly esteem these in the nature of Gauges, or Pledges, although this be not without Distinction. 
m Bro. Distress 13. 57 99  To this also may be added that Actio hyp●thecaria, & quasi Serviana, for if any one receive moneys borrowed of another under a Pledge or Pawn, and cannot afterwards receive his pawn upon tender of the moneys, the Creditor refusing to redeliver it, the Debtor may in this Case have his Action, 
n F. n. b. 86. G.  and he is said to sue upon an Action quasi Serviana, who being seized of Lands, as by way Mortgage, is disseised or elected out of them.  
10. Now writs which are proper to real Actions, are either to recover a property, or a possession, 
o Flet. l. 6. c. 1.  those which appertain to a property are writs of Right which are of divers kinds, 
p F. n. b. 1. 6. 11. 19 193.  and those also which are of the same nature. 
q Id. 157. Plow. 357, 358   
11. We may sue for a possession, or for that which is of the same nature, whether they be lost by force, or detained, being committed voluntarily to another against Right, in which the former Cases we may be relieved by ●●its which we call Assizes, 
r F. n. b. 177. 179 181, 183. 134. 88 190. 191.  and those which are of the like nature. 
s 13. Ed. 1. c. 25. Brac. l. 4.   
12. And for the recovery of a possession which being voluntarily delivered to another is unjustly detained. There are writs of Entry of divers kinds, and others like them. 
t F. n. b. 201. 205. 206. Brac. l. 4. tr. 7.   
13. Prejudicial Actions also are reckoned among real: now those are termed prejudicial which arise from incident and emergent questions, in which it is inquired, whether one be born free or not, if not, then whether he be actually free or a Servant? a Son or not a Son? and if a Son, then whether legitimate or Bastard, & c? 
u Brac. l. 3. tr. 1. c. 4. n. 9 Brit. c. 108.  and they are called prejudicial, because they are judged and determined before the principal Action. 
w Id. ib.   
14. Actions which are mixed, being as well against the thing as the person, and so called because they have a mixed cause relating to both, as the dividing an Inheritance between Coheirs, the setting of Bounds amongst Neighbours, for if we respect the persons, they are both complainants, and respondents, although he is not properly said to be complainant, who citys the other to come to Judgement. The Writs which are proper in these Cases, are these de Partitione, 
x F: n: b. 61.  de rationabilibus divisis, 
y Id. 121.  de perambulatione facienda, 
z Id. 133.  de Curia claudenda; 
a Id. 127.  de reparatione facienda. 
b Id. ib.   
15. Furthermore there are Actions which are given either solely as penal, 
c Brac. l. 3. tr. 1. c. 4. n. 5.  or as beneficial to both, which some call Civil, criminal, or mixed. 
d Glan. l. 1. c. 1. Brac. l. 5. tr. 5. c. 31. Littl. c. Releases.   
16. Those which relate merely to a particular thing, are all those which grow from Contracts, or of the same nature, and claim nothing for wrongful detaining, or nomine penae, as a punishment of the Crime, 
e F. n. b. foe 1.  and those are penal, which are ordained for the preventing of misdemeanours, of which sort are those popular Actions which are given to Informers for the benefit of the Exchequer, and themselves against the breakers of Statutes, 
f Id. 171.  and those relate both to the thing, and person, which regard the thing as the principal cause, and the person as to personal performance, 
g Brac. l. 3. tr. 1. c. 4. n. 5.  of this sort is a writ of Assize which claims the thing, as to restitution, and yet is against the disseisor, as to Damages for the injury, 
h Id. l. 4. tr. 1 c. 6. n. 3. 20 H. 3. c. 4.  and a writ of waste, which requires the thing wasted, and treble damages. 
i 6 Ed. 1. c. 5.   
17. There is also a third division of Actions, for that some give barely the damages 
(k) Brac. l. 3. tr. 1. c. 4. n. 6.  sustained, some double, some treble, and some tenfold. 
k Brac. l. 3. tr. 1. c. 4. n 6.  Those which give barely ●he Damages sustained, are all Actions of Trespass. 
l New book of Entries, Trespass.  Those which give double damages, as against such as make an assault against those who are called to the high Court of Parliament, 
m 11. H. 6. c. 11.  and against him who prosecutes any Action in the Court of Admiralty, which is not within the jurisdiction of ●he Court: And lastly, against those who ●et too high a rate upon Victuals. 
n 2. H. 4. c. 11.  Triple damages are against those who unjustly ex●ct money for the probate of Wills and Testaments. 
o 23. Ed. 3. c. 6.  Or who cause Riots. 
p 3. & 4. E. 6. c. 5.  And tenfold the damages are recoverable against 〈◊〉 Juror who receives a Bribe for bringing in 〈◊〉 Verdict. 
q Ib. & 1. Mar. Parl a. 1. c. 2.   
18. Besides, we have not unaptly said some Actions to be bona fidei, and some of ●rict Right; for though no such distinction 〈◊〉 expressly found amongst our Lawyers, yet 〈◊〉 find them frequent in practice. For the Damages which we receive from Contracts or Trespasses are left and remitted to the e●●●ty of the Jurors, what, and how much it 〈◊〉, and Judgement is given according to their estimation. Where on the contrary, in Actions which have reference principally to the thing, unless the complainant prove the thing 〈◊〉 Action to be due, and to be his, the Action falls, because neither the Jurors nor the 〈◊〉 have any other power in these then to condemn the Defendant, as to the thing in Action, or to free him. Whence it happens, that one and the same thing often occasions a double Action, viz. a principal Action for the thing which is of strict Right, and another which is accessary for the recovery of Damages, which is bona fidei.  
19 In the distinction of arbitrary Actions from Actions, bona fidei. The Civilia●● do not very punctually agree. Nor do we find any other of them in use amongst us in England, more than these we have observed: Only this we may add, That the Chancellor of England, or the Keeper of the Great Seal [whose Authority is almost the same] to whose Conscience and Equity every one who is without remedy in the Law may appeal from other Courts before Judgement given, is not bound or prescribed by any Laws, but that he may decide and compose all causes which are for this purpose brought before him, according to the Judgement and Conscience of a Good man, and imprison him who is contumacious and refractory to his Decrees, and detain him there until he becomes conformable. 
r Plowd. 532.   
20. We have no use with us of that which was called Actio de Peculio, in regard we are not obliged by their Contracts, who are under our power, unless so fare as they be in order to our Commands. 
s Dr. Stu. l. 2. c. 42.    

What is said to be a Contract made by him who is under the power of another.  
TIT. VII.  
THose Contracts which are made by our Servants by our command, are binding ●o us: 
a V n. b. 62. F. n. b. 120. G.  For if I make one of my Servants ●y Bailiff, and give him a power of taking Oren or other  to graze in my pasture 〈◊〉 a certain price, I cannot have an Action 〈◊〉 Trespass, or de conculcatione herbarum against him, who shall upon such a Contract ●urn his  into my Pasture. 
b Bro. Entries, Tresp. in Agist.   
1. But if my Servant shall borrow moneys in my name, I am no way obliged, except the moneys be employed for my use, and ●y my consent, 
c V n. b. ib.  which is also true in what Contract soever. 
d Dr. Stu. l. 2. c. 42.   
2. But if I send my Servant to a Market, ●ad bid him buy certain things for me, and do not design any person, I am obliged to him of whom he buyeth those things in my ●ame. But if he buy them in his own name, without mentioning me, than it is otherwise, unless the things so bought come to my use. 
e Id. ib.   
3. If also I send my Servant to a Market to sell something of mine which I know to be unsound, to A. In this case I am obliged by such Bargain and Sale: But if I give him order simply to fallen it to whom he can, here no Action will lie against me. 
f Id. ib.   
4. If a Wife buyeth any thing in a public Market, and the party of whom she buyeth it trusts her for the payment of the price: In this case her Husband is not bond▪ unless the thing bought be converted to his use. 
g V n. b. 62.   
5. But in some Cases the Law presumeth a Consent of the Master (although there be none particularly expressed) in the contra●● of a Servant; as in those whom Merchant's place in their Shops or Warehouses, as Factors: For that the daily and continual presence, knowledge, and sufferance of the Master do sufficiently argue his consent, whether it be Wife, Children, or Servant, wh● so trade in his Commodities.   

Of those Actions which by the Civil Law lay against the Lord for an Offence or Crime done by his Servants or Cattles.  
TIT. VIII.  
THis Action which is called Noxalis Actio, and lies against the Lords for the crimes of their Servants, is unknown to us in England; for that they themselves may be convened for their proper Crimes (our Villains not being otherwise Servi, then as they are Ascriptitij) unless that any one commands his Servant to do an unlawful Act, for in this case he is no less concerned than if he had commanded any other, who was not in his power, or under his subjection. 
a Dr. Stu. l. 1. c. 9   
1. Yet as to bruit Beasts, and things inanimate, by which a man happens to be slain, we have something like to the Noxalis Actio in use with us. For if a Horse by kicking, or a Bull running mad, or a Cart drawn with Oxen happen to kill a man, this, whatsoever it be, is in a manner sacred, [unless it belong to the King.) And I question whether it were not the ancient custom to burn them: But at this day they escheat to the Supreme Power, yet so, as that the thing being sold, the money for which it was sold is disposed of by the King's Almoner, and employed in pious uses, and it is for that Cause called Deodand. 
b Id. l. 2. c. 3. Stanf. pl. crow. l. 1. c. 2.    

Whether a fourfooted Beast may be said to commit a Trespass or not.  
TIT. IX.  
IT is a rule with us, that every man is obliged to repair those damages which his Beast, though against his knowledge, commits upon his Neighbour's Corn, Grasse, Trees, of Fruit, either by eating, or treading of them. 
a Dr. & Stu. l. 1. c. 9 Fulb. wrongs, fol. 81.   
1. And he that is damnified by another's Cattles, may detraine them in a public Pound until he be satisfied as to the Damages: 
b Id. l. 2. c. 28.  So that if they die for hunger, it is at the Owners peril, and not at his who did impound them. But if the Owner offer sufficient for satisfaction of the Damages, and the other refuse, the Owner may release his Cattles by the office and power of the Sheriff, giving security, that either they shall be forthcoming, or that he will pay so much money as shall be adjudged due for the Damages: 
c F. N. B. Re●levin.  And if upon the trial of the business before the Sheriff no Damages appear, than the Owner shall by this means recover Damages for the detinue. 
d F. N. B. 69. G.   
2. If ones Dog chase another's Sheep, or by't them, by which means they either cast their Young, or die, or take any other hurt, the Owner of the Dog is bound to make satisfaction, 
e Boo. Entries. Tresp. in Chein.  which notwithstanding some deny, unless the Owner of the Dog knew that he would by't, 
f Dyer, fol. 25. n. 162.  or else set him on. 
g Id. fol. 29. n. 195.   
3. But if any one be driving a Flock, or Herd of Cattles in a public way, and they happen suddenly to break into another man's ground, the party following them, and endeavouring to keep them from committing Damages, is no Trespasser, 
h Dr. Stu. l. 1. c. 16.  but yet he is bound to repair the Damages if any be committed. 
i Fulb. c. 10. wrongs, fol. 81.    

Of those by whom we may sue.  
TIT. X.  
WArds and Infants ought to sue by their Tutors, Guardians, or Attorneys, unless in such cases in which Infants are bound to answer, notwithstanding their Minority; but what those are is to be enquired of others. 
a Brac. l. 5. tr. 2. c. 1. n. 2.   
1. It seems that in ancient time it was at the pleasure of the Judge whether one should have his Attorney or not, because the Writ seems to require a personal appearance. 
b F. n. b. fol. 25. C.  But this is by degrees changed by Acts of Parliament; 
c 20. H. 3. c. ●0. 9 Edw. 1. c. 8. 13. E. 1. c. 10. 27. E. 1. Stat. 2. 12. E. 2 St. 1: c. 1 15. E. 2. 7. R. 2. c. 14. 4. H. 4. c. 18, 19 7. H, 4. c. 13. 5. H. 5. 2 H. 6. c. 3. 9 H. 6. c. 10. 15. H. 6 c. 7.  so that at this day nothing is more frequent and common, then for every man in what cause soever that is private, whether it be real or personal, to sue or defend himself by his Attorney. Yet at this day we might find many cases, in which we are wholly forbid: And others, in which it is not permitted to make use of an Attorney without leave from the Justices. 
d F. n. b. fol. 26. D. Bro. Attorn. 69. 81.   
2. An Attorney also, or Procurator, according to the ancient Authors, may make Oath for his Master. 
e Brac. l. 5. tr. 2. c. 2. n. 3.    

Of giving of Pledges or Securities.  
TIT. XI.  
IT appears from the forms of most Original Writs, That the Plaintiff was bound to put in security, and give Pledges for to prosecute, before the Defendant could be distrained, taken, or forced to put in Bail. 
a Spec. Inst. l. 1. c. des. Artic, etc.  But this custom is long since ceased, and those words of the Writ are become merely formal, as many Practisers have told me: For that the Sheriff in his return of the Writ names Pledges for prosecution, not as to oblige them to any Process, but to avoid Error, since that really there is no body obliged.  
1. How the Defendant in former times gave caution, or put in Bail for his appearance, many have declared at large, but that for the most part is altered. Wherefore for the more full handling of this business, we have thought it needful to run over and examine the custom of every Court.  
2. The Upper Bench in the Infancy of the Law did for the most part handle criminal causes: And [if that be true which we read] taken little cognisance of private contracts, unless it were out of particular favour, but left them to be decided by the Justices of the Common Pleas, the Sheriffs in their County Courts, and Barons, and Lords of Manors. 
b Glan. l. 1. c. 2, 3, 4. & l. 8. c. 10. & l. 10. c. 10. 18.  But at this day it receives and determines all civil Actions which can but be drawn within the compass of Trespasses, vi & armis, or contra pacem: 
c Cromp. fol: 47.  And the Defendant, if taken within the same County where the Court is (viz. in Middlesex) is brought to answer any private Action whatsoever without distinction. 
d This writ is called a Bill of Middlesex.  But if it be not found in that County, than he is supposed, under the pretence of fraud or contempt, to sculk in the County where he dwells, under which colour he is commanded to be taken, and to be committed to the Marshal of the Court to be kept. In whose custody so soon as he shall come, because he is now in the same County where the Court is, he may be compelled to answer any Action whatsoever, 
e Dyer, foe 217 n. 1.  and to put in Bail to the Action, unless he will go to prison: And by a Writ of Error every Action, together with the Records of the Court which concerns it, may be called into this Court at this day, not withstanding that it could not take its beginning there. 
f F. N. B. Bro. Error. Crompt. fol. 47, 48.   
3. In personal and civil Actions which are prosecuted in the Common Bank, or Common Pleas. There first issueth forth a Summons, 
g Brac. l. 5. tr. 5. c. 31. n. 2.  which is taken out of the Chancery, as all original Writs are. And if the Defendant be not found; or being found, do not appear, there is issued forth a Capias, Alias, & Plures, yet so as there are fifteen days intervene each Writ: And if he be taken, he is committed to prison to be kept till the day of his appointed appearance, unless he give security to the Sheriff (who is the person commanded to take him) for his appearance; which being done, he could no longer detain him, except it were for some particular causes,: 
h V N. B. 41. F. n. b. 66. E.  But if after the Plures they could not be taken, than an Exigent was issued to the Sheriff, in which he is required to demand him in open and public County Court for five Court days together, to make his appearance: And if he did not appear then, he was deprived of the King's protection, and lost the benefit of a Subject, for he was proclaimed outlawed, and all his Goods, Chattels, Rents, and Profits of Lands, and whatsoever did naturally grow thereon were forseited to the Exchequer, notwithstanding that the Action was personal. 
i Bro. forfeiture. fol. 30.   
4. In real Actions, if the demand be of a Corporal thing. The Defendant is first summoned: And if he appear not, than the thing in Action is seized into the hands of the Supreme Power until he do appear, 
k V N. B. foe▪ 126. 161.  which is done also, if after his first appearance he delay to answer. 
l Id. ib.  If it be a Right which is in question, and cannot conveniently be taken, than the Defendant is summoned, and not appearing, his Goods are distrained: 
m Id. 71. 27.  But I cannot affirm this rule so constant as not to fail. 
n Assis. ult. present. fol. 26.  But there is no great necessity of being exact here, in regard every Writ hath a form in it of taking security, by which the Defendant is bound in Law. 
o Regist. Origin.   
5. There is no Process lies against the bodies of Parliament men, or of Bodies politic, but they are first summoned: and upon their contempt, their Goods distrained until they appear: For the Law presumes them who are Parliament men are able enough: 
p V N. B. fol. 61.  And bodies Politic have not visible Existencies whereby they may be taken. 
q Plowd. 538, 539.  And Noble men and Prelates who claim the Titles of Peers, and who sit in Parliament, have always had the privilege, That in Corporations and Burroughs through which they pass, their Horses cannot be distrained for Debt upon a Contract or Trespass, so long as they have other Chattels there by which they may be distrained. 
r F. N. B. fol. 93. I.   
6. There are certain Cases wherein the Defendants body may be taken without summons, and he be compelled to put in bail for his appearance, in which cases his Goods may be distrained, though he be not personally taken, 
s F. n. b. Trcsp. fo. 85. 92. V n. b. 49.  as Trespass and other cases of the same nature. 
t V n. b. 121. 57 69. 92, 93.  And if the Defendant have not Goods, then is he sued to the Utlawry.  
7. In the Chancery, in cases of Equity, there is first a Summons under a pecuniary mulct of a hundred pound, to appear at a day prefixed; Which if they neglect, than their bodies are taken, if found, and either they are committed to prison, or forced to put in Bail: But if they be not taken, than Proclamation issues forth, and is made in divers places of the County publicly, wherein they are summoned upon their Allegiance. And if upon this they appear not, than a Commission is issued forth to certain Eminent men, in which they are permitted to seize them as Rebels, and to bring them, or cause them to be brought into the Chancery by a day prefixed in the Commission. 
u West. part, 2. Sect. 22, 23, 24.  But even here also Parliament men enjoy their privilege; That the Lords Chancellors by their private Letters do gently entreat them to appear, and answer by their Attorney. 
w Id. ib. 21.  But if in this Court Process be according to the custom of the Common Law, as upon an account, 
x Cromp. 41, 42.  or an Audita Querela. 
y Plowd. 72.  Then are they also compelled to appear by Writs fitted for the exigency of the business.  
8. In causes criminal which are capital, as in Treason or Felony, there is first a Capias issued forth, then Alias, & Plures, than an Exigent, and upon non-appearance, they are outlawed, 
z Lambert.  but if they be apprehended they are in some cases committed to prison; without any hope of being released until Judgement past, 
a 1. West. c. 15. 23. H. 6. c. 10. 1 & 2. Phil. and Mar. Lambert l. 3. c. 2. pa. 334  but if it be only for a sleight suspicion of Felony, or for Petite Larceny, the Sheriff may take Bail for appearance, and is compellable upon his refusal. 
b V F. n. b. fo. 41   
9 If the Offence be not capital, the Sheriff is commanded to cause the Defendant to appear, at a certain day to answer certain Articles, and if he come not; the Sheriff is to make his return, and certify the Justices, whether the party have sufficient Goods and Chattels, or whether he have nothing. For if he have, his Goods are to be distrained, till he come, if not, than Process issueth forth until he be outlawed. 
c Lamb. in supplement process.   
10. There are other particular ways of proceeding, in causes criminal, expressly appointed in particular cases which are to be collected out of such Statutes, wherein they are enjoined are prescribed. 
d Lamb. l. 4. c. 8. p. 505.   
11 There are also certain cases in which the Plaintiff upon his own Authority seizeth the Goods of the Defendant, and requires him to come to make an extrajudicial satisfaction, or at least to come to Judgement: As for Rent which is due; either as a Service, 
e Dr. Stu. l. 1. c. 7. V F. n. b. foe 42.  or as charged 
f Lit. l. 2. c. Release:  upon the Lands.   

Of Perpetual and Temporal Actions which descend to Heirs and against Heirs.  
TIT. XII.  
OF Actions there are some which are perpetual, and some which cease at a certain time, for although Bracton asfirmes, 
a l 3. tr. 1. c. 3. n. 5.  almost all Actions to be temporal for want of sufficient proof, yet this happeneth not so much from the nature of the Actions, as from the difficulty of proof.  
1. I call those perpetual which cease only tacitly through continual forbearance, and which have not any set time expressly allotted for their continuance. Of the second sort there are many which arise both from the common Law and Statutes. For these if they be not prosecuted within the time limited, do cease and fall: For example, the Owner of a Park hath an Action against any one that hunts in his Park, if he sue within a year and a day, but if he let that time pass, the King only may prosecute the Action. 
b (b) I Westm. c. 20.   
2. But there are some which are so perpetual that no process of time can extinguish them: As those which by the Law of Nations are inherent in the Crown by reason of the King's Privilege and Prerogative. As of things which have no Owners: Also of Things, Liberties, and Dignities, which appertain to the King's Crown, and in which cases not time occurs against him, if he require them: Where he hath no need of proof, but may recover without proof, unless the party impleaded may have a Warrant, i. e. a special liberty granted by the King, because he makes no defence from prescription. 
c Bract. l. 3. tr. 1. c. 3. n. 5.   
3. There are also some so purely temporal that when the person dieth they neither descend to his Heirs or Executors, nor do they lie against Heirs or Executors, As those which are penal, for a Penalty ought not to be extended to any other than the Authors, nor to proceed further than the crime extends itself. 
d Id. c. 2. n. & 5. & l. 4. tr. 1 c. 20. n. 11. Dr. Stu. l. 2. c. 10.   
4. Nor can Heirs or Executors sue or be impleaded from Covenants in writing, unless there be particular mention made of them in the Instruments of Covenants. Now what Actions are temporal from the Statutes of the Commonwealth we have shown before. 
e Lit. uses & Prescriptions.    

Of Pleas and Exceptions.  
TIT. XIII.  
HItherto we have spoken of Actions, it remains that we speak something of Pleas for Pleas are in the place of Actions, and in respect of Actions are termed Pleas or exceptions, in regard that one impugns the other, and as those who so are armed with Actions are prepared as it were with Swords, so the Defendants on the other side are guarded with Pleas as with shields and bucklers, 
a Brac. l. 5. tr. 5. c. 17. Fleta l. 1. c. 32.   
1. Now an Exception or Plea is as it were the cutting asunder of an Action, by which an Action is destroyed and defeated. 
b Id. ib. c. 1. Fl. l. 6. c. 36.   
2. An Action is taken away by the Plea of Per metum, & dolum, as if one pleads such an Obligation to have been extorted from him, Per metum & dolum, 
c Id. l. 3. tr. 1. c. 2. n. 13. Brit. c. 28. fo. 66.  so also by reason of not counting or telling Money: As if a man promise Money to another from whom he expects to have the same in a small time counted to him, he may have this Plea against him, afterwards when he shall demand it, yet it seems that this Plea will not prejudice an obligation in writing 
d Brac. l, 3. tr. 1. c. 2 n. 9  unless the Defendant can also show an Acquittance in writing, 
e New terms Acquittance.  also by Contract, as if one first covenant that he may demand and then, that he may not demand, 
f Brac. ib.  or if one doth make satisfaction and recompenseth any way a trespass committed by him, and so takes away the cause of Action, 
g New terms Record.  so also by an oath, according to our ancient writers, viz. When an Oath shall be brought, or related, and afterwards sworn, 
h Brac. ib.  and lastly, by pleading a former judgement, as if the Ancestor of the Plaintiff ●r any of his Heirs lost the thing in Action ●y a Judgement in case of property; as by a Grand Assize, or by Battle, or by verdict of 〈◊〉 Jury, upon whom they had put themselves. 
i Id. l. 5. tr. 5. c. 28. n. 7.   
3. Of Pleas, some are dilatory, and some Peremptory: 
k Brit. c. 29. Terms, v. Bar Flet. l. 2 c. 54. and l. 6. c. 36.  and of those which are dilatory; some are Peremptory, as to the Jurisdistion, and dilatory as to the Action, and not peremptory: And in like manner some are peremptory as to the Writ, and dilatory as to the Action: 
l Terms, v. Addition Flet. l. 4. c. 10. Sect. 1, 2. and l. 6. c. 36.  some Pleas also are general as to all Actions, and some special which are allowed only to particular Actions. For ●ll Actions have their proper Pleas, according to the form of the Actions. 
m Brac. l. 5. tr. 5. c. 1. in the beginning.   
4. And there is a kind of Plea which we ●all a waging of Law, and which is (as to Law) peculiar only to us English; for the Defendant is admitted for the defeating of an Action of Debt which the Plaintiff proves only witness without any specialty to wage his Law, i. e. to make his defence against the Suit brought by the Plaintiff by two compur●ators for every witness that is produced unto the full number of twelve: now in this case ●e himself first makes oath, that he doth not ●we the sum, demanded, nor any part or parcel of it, and the Compurgators swear out of their own credulity, that they believe the Defendant to have made a true Oath, 
n Flet. 1. 2. 63.  but against an Instrument or Specialty (as we call it) a Wager in Law licth not. 
o Dicr s. 23. 143.   
5. Genciall pleas are those which lie generally against all Actions: As the Plea against Jurisdiction against the Person of the Plaintiff, against the Writ, that Plea which ariseth from time, according to the divers sorts of Actions, and that which comes by reason of the place through the Error of bringing the Action there; now all these are dilatory as to the Action, and as it were beside the Action, and therefore they do not defeat the Action although, 
p Brac. l. 5. tr. 5. c. I. ●pec. Just. l. 3. c. Exceptions dilatory. Fletal. 2. c 61. l. 4. C. 10.  they do defer it and abate it for a while.  
6. Now one may use many Dilatory Pleas and several, provided they come in their proper places, but if there happen to occur more than one, which are peremptory, as to the Actions, the Defendant ought to propose and prove one as contingent to the Actions, as where a man hath many Actions one ought to betrayed, because if the Defendant should fail in proof of two Pleas, he may have recourse to the rest, and prove them, as if he were to defend himself with many weapons, which ought not to be, if the proof of one be sufficient. 
q Brac. ib. c. I. n. 7.    

Of Replications.  
TIT. XIV.  
AGalnst a Plea or Exception which seemeth plausible, and full at the first sight. The Plaintiff may relieve himself by a Replication, as if a man brings his Acton: the Defendant may plead a Covenant intervening to hinder the demand or Action, against which the Plaintiff may in his Replication produce a Covenant inserted after that which doth permit and enable him to sue and demand. 
a Brac. l. 5. tr. 5. c. I. n. 4. Fle. l. 6. ●. 36.   
1. After a Replication follows a Duplication, after a Duplication, a Triplication, after a Triplication a Quadruplication, as the Case requires, and so ad infinitum. And lo it may fall out, that an Action, which prima fasie seems good, may be defeated by a Plea, and in the same manner a Plea, which seems good by a Replication, and so in the rest.  
2. Out Lawyers, call a Duplication, as well in the Chancerv, as in other Courts a Rejoinder, and a Triplication a Sur-rejoinder. 
b west's Proceed in Chancery, Sect. 56, 57    

Of Prohibitions.  
TIT. XV.  
INterdicta are wholly out of use amongst the Civilians, so that at this day they make no disterence between them and Actions. The Roman Praetors used them chiefly to reprcsse tumultuary and sudden violence, especially in the Cases of possessions, but in these Cases our Ancestors were wont to delegate and depute Justices of Oyer and Terminer, and Justices of Assizes, and those not to determine all causes at set times, as now, but upon every particular emergency, so soon as it first arose, 
a Brac. l. 3. c. 7 n. 2.  but as things now are these kinds of businesses are dispatched by Actions or decrees, which we call judicial Writs, or at least by the help and assistance of the Sheriff, and Justices of the Peace in every County: 
b 13 R. 2. Stat. 1. c. 7. 15 R. 2. c. 2. 8 H. 6. c. 9 13 H. 4. c. 7. 19 H. 7. c. 13. 2 H. 5. c. 8. Lamb. l. 2. c. 4. and l. 3. c. 1.  but whosoever desireth to read what our Sages of the Law have written concerning or recovering of a possession, let them read Bracton, 
c l. 2. c. 17. & l. 4. c. 1.  Briton, 
d c. 40.  and Fleta 
e l. 3. c. 15. & l. 4. c. 1.  in their proper places.   

Of the penalty of those who are rashly Litigious.  
TIT. XVI.  
AMongst the Ancient Writers of our Law there may be many marks found of the severity wherewith our Ancestors punished, those whom the Issues and ends of their suits proved and manifested to be litigious without cause, which although it seems to be at the present more remiss, yet is it not wholly laid aside, for if any be found raising suits against others maliciously, they are adjudged to bring a scandal upon the Court, and are oftentimes for their offence committed to Prison. 
a Bro. Ent. tit. Attomey. F. n. b 114.   
1. But this is for the most part the custom at this time, that the Plaintiff, if he be cast, is adjudged to pay unto the Defendant the Costs of his Suit, 
b 23 H. 8. c. 15 24. H. 8. c. 8.  and the Defendant if overthrown, pays to the Plaintiff the thing in Action with damages and costs of Suit. And although it be the constant Custom to pronounce the party cast to be in misericordia Regis, 
c F. n. b. f. 77. K.  yet those words as to the Plaintiff, are of no use, and as to the Defendant only, where he betrays too much contumacy in the maintenance of such a cause, which is manifestly unjust: but if he appear malicious, then is he to be taken and made to pay his Fine to the King for his contumacy, yet is this Fine for the most part very easy when he is taken. 
d Dier s. 67. n. 19   
2. The Licence and Liberty appears to be very great, which our Ancestors permitted to those who were contentious, that they might merely through envy, and the pleasure they took in being vexatious, take men upon Writs, and force them to put in Bail in the King's Bench, or Mar●●alls Court, and oftentimes to appear, and yet be unpunished, though upon their appearance they objected nothing against them. But this is prudently remedied by an Act of Parliament, which renders all those who procure any one to be arrested, and upon their appearance refuse to prosecute liable to pay them their Costs and Damages. And for that the impudence of some had gone so far, as to feign sometimes such persons, as were not in being, in whose names they caused others to be arrested, that Statute condemneth such Delinquents to six month's imprisonment without Bail or Mainprize. 
e 8 Eliz. c. 1. 17 R. 2. c. 6.   
3. But for the suppressing the Power of such litigious men, whom the bare hopes of recovering their Costs of Suit, will stir up to sue even for a trifle, it is decreed by Act of Parliament, that whosoever should bring a Personal Action which concerned neither Title of Lands, free Tenement, Inheritance, or Battery in any of the Courts at Westminster, in which Action the Judges of the Court should value both the Debt and Damages to be under forty Shillings, that the Costs of such Suit should not be assigned greater than the principal value. And that whereas the Sheriffs and their Deputies were wont formerly to cite and Summon the good people of England without any warrant or Writ to the said Courts, or to imprison their bodies, or distrain their Goods, that from thenceforth they should not dare to attempt the like, and he that made Default in this, or caused another to do so, should be committed to Prison without Bail or Mainprize, until he had, besides Damages and Costs of Suit, paid ten pounds to the party injured, and twenty pounds to the Exchequer. 
f 43. Eliz. c. 6   
4. Nor shall a man escape unpunished, for moving or beginning every Suit rashly, for in some Cases, if the Plaintiff upon the Defendants appearance desist, he shall pay Costs, 
g 23 H. 8. c. 15.  as Informers upon penal Statutes, if after the Suit begun, they delay, discontinue, or be nonsuit in the same, or have the Trial or matter pass against them, by Verdict or Judgement of Law, they shall pay unto the Defendant his Damages, and Costs which shall be assigned him by the Court. 
h 18. Eliz. c. 5.   
5. So also they who indict or impeach any one under the pretence of any crime, whereby their lives, credits, or Estates are in Jeopardy, are liable to an Action of conspiracy, 
i 33 E. 1. Sta. 3. 3 H. 7. c. 1.  which presumes malice: whereby they shall be compelled to pay the full Damages sustained by such accusation or eviction, 
k F. n. b f. 115. ●.  and in some Cases they shall pay triple Damages. 
l 8 H. 6. c. 10.   
6. And I have heard from some practisers, that if any one in forma pauperis procure a Liberty of bringing his Action in the Upper Bench, Common Pleas, or the Chancery, according to the Statute, 
m 11. H. 7. c. 12.  and betray rather a Spirit of Contention in the end of the Suit, than a just cause, that such person shall have corporal punishment. 
n 23 H. 8. c. 15.   
7. But our Ancestors were wont to deter men from their light, and rash Suits by an Oath, for it was prohibited every one to bring any Action of Battery before the King's Justices, (unless it were for wounds or maims) without they first made Oath that his Plaint was true, or an Action of Trespass for goods taken without making Oath that the Goods taken were worth forty shillings at the least. 
o 6 E. 1. c. 8.   
8. There are many Statutes made by the no less prudence than equity of former Parliaments, 
p 32 H. 8. c. 30. 18 Eliz. c. 14. 27 Eliz c. 5, &. 6. Plow. 83. 522, 523.  for the speedy deciding of Suits, which that they might be preferred before private ends and profit, were to be wished by all good men, in regard they do principally recommend the truth of causes to the Justistices, rejecting all malicious calumnies of those who are subtle, and litigious, and amongst these that is worthy to be numbered, by which the crafts and knavery of under-Sheriffs, and their Officers and Bailiffs are restrained. 
q 27 Eliz. c. 12    

Of the Office and Duty of a Judge.  
TIT. XVII.  
OUr Kings were wont formertly at their Inauguration, or Coronation, to take an Oath to this Effect, viz. that they would keep inviolate all the Rights and Liberties of Holy Church, which were granted unto her by the Christian Kings of England, That they would keep without impairing or diminution, all and singular the Land and Dignities appertaining to the Crown, and endeavour with all their power the restitution of such as were impaired or lost, if any were: that they would cherish the quiet and Peace of the Church, Clergy, and people; that they would keep and observe the ancient Laws and Customs of the Kingdom which were received and established by the consent of the whole people, and abrogate all such Customs and Laws which were ill and naught. And lastly, that they would to the utmost of their power, assure Peace to the People of their Kingdom, and procure it from others. 
a Brac. l. 3. tr. 1. c. 9 n. 2. F. n. b 232. A. Spec. Justice. l. 1. c. 1. Flet. l. 1. c. 7.   
1. The Oath of the Justices of the Superior Courts, and of the Barons of the Eychequer, are to this effect, viz. that they will well and truly serve the King and his People, and not consent to any thing which may tend to their prejudice or Exheredation, that they will not take Fee, nor Robe of any man but the King, that they will not take any gift of any one whose cause is depending before them, except meat and drink, and that of a small value, nor any thing for any cause, after it is tried, 
b Brac. ib. c. 8 n. 2, 3. & n. 9, 10.  that they will not give counsel to any one in any case which concerns the King, under the pain of being at the Kings Will, as to Body and Goods, that they will not be deterred by the King's Letters from doing and administering justice to any one. 
b Brac. ib. c. 8 n. 2, 3. & n. 9, 10.   
2. This we have even from the very beginning 
c 2 E. 3. c. 8. 20 E. 3. c. 1. Dier 138. n. 27  unto this present, that where any one is sued in case of property of a Fee Simple, for Lands or Tenements, it is at his choice whether he will be tried by his country or by Battle, if he prefers to be tried by his country, the business is determined by a Grand Assize; but if by Battle, than a day is appointed, 
d Glan. l. 2. c. 6. & 7. Brit. c. 42.  upon which the Case is committed to two combatants whom we call Champions, according to the Law of single Duel, between whom it is decided by the event. 
e Dierf. 301. n. 40. 41. 42.   
3. The ancient custom of the Nation requires also that all Trials of private Actions (except a few) as to matter of Fact, 
f Plowd. 92. 114.  should be determined by a jury of twelve free, and lawful men of the same vicinage, who are neither allied to either Party, 
g Dr. Stu. l. 1. c. 7.  or hindered by any just exception. 
h Dier 144. n. 59 176. n. 27. 177. n. 33 316 n. 3. Bro. Tit. Challenge.   
4. Those who are indicted for any capital crime, or Felony before a judge, unless any question arise touching matter of Law, are not allowed Council. Yet the Laws require That the Judge himself should instruct the party in all things appertaining to the form of his defence, lest an ignorant Innocency endanger his life. 
i Fortesc. c. 27. Dr. Stu. l. 2. c. 84. Stamf. pleas, l. 2. c. 63.  But in case of an Appeal, he may make use of others for his defence. And if he be so poor, that through want he is not able to procure Counsel, the Judge ought upon his request to assign him a Patron to plead for him. 
k Dr. Stu. ib.   
5. As for the sum in which any one supposeth himself to be prejudiced, by reason of a Trespass committed against him, the Justices do proportion it either by the verdict of a Jury, or by virtue of their own Office: 
l Brac. l. 3. tr. 1. c. 1.  For they do, 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, until they are agreed together upon their verdict) when any such danger appears. The Judge may permit them to eat and drink, and remit them again 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 Nox●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, we need not trouble ourselves with Observation concerning it.  
8. If in a real Action, Judgement shal●… pass for the Tenant, the Demandant shal●… only be adjudged to pay costs of Suit: But i●… it pass for the Demandant, the Judge shal●… condemn him to pay Damages, and costs o●… Suit, and shall command the Sheriff 
o Scire facias F. n. b. in the Index throughout, and in the Register.  (or in case it touch any Benefice than the Ordinary) 
p F. N. B. 38.  to put the Demandant into possession, which the Sheriff is bound to do without delay. And this is true, whether the Demandant sue as Heir, 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 than favour; but if he be not, than the Jury lay little or no Damages upon him. 
q Brac. l. 3. tr. 1. c. 3. & 5.   
9 An Action is chief in case of Movables; but as concerning Movables, we 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, we recover either the thing itself, or the value. I do not find that the Defendant can be compelled by our Law to restore the thing in Action: Yet in the case of Lands, or an incorporeal 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 Judge commands the Sheriff; That at a day assiigned, he cause a view to be taken by such Viewers or Surveyors, as may certify the Court at another day touching the quantity.  
10. That which the Romans called Judicium familiae eriscundae, we term Partition of an Inheritance: But whereas they divided as well Movables as Immovables among Heirs, we only make partition of Immovables amongst those whom either the Common Law or the Custom of any place entitles to an equal 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 equal parts, the Eldest shall have the first choice, and so the rest in their order, or else by Lots. 
s Id. ib. Terms of the Law, v. Partition.  The form 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 last to be observed; That whatsoever is assigned to one in one place over and above their due, shall be recompensed to the other in another place. 
u Brac. c. 33. n. 8.   
11. Those who hold jointly, whether they be joint-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 Coheirs. 
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 Sheriff, that he shall determine and bond 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 certify under his own Seal, & the Seals of four Knights, who were present at the business 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 Sheriff, to require him to set equal bounds and limits. 
z Terms of the law, v. perambulation. F. n. b. fol. 128.   
13. Now whatsoever shall be adjudged by the Supreme 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 public Judgements.  
TIT. XVIII.  
AS for those punishments which are inflicted upon Malefactors, some extend to the loss of life, some of a Member, others of City, Burrough, or Province, some to perpetual 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 loss 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 chief, in regard of its heinousness, 
b Coo. l. 4. Beverleys' case, 124.  which we 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 ways committed, as by killing, or imagining the Death of the King, the Queen, or their Son and Heir apparent: By ravishing 
d Spec. Just. l. 1. c. deal peach de majeste.  the Wife, or eldest Daughter of the King [if she were unmarried] or the wife of the King's Son and Heir apparent. By taking up Arms against the King within his Kingdom. 
e Dyer, fol. 98. n. 56.  By adhering unto, or bringing supplies unto the King's Enemies. 
f Coo. l. 4. fo. 57  by counterfeiting the King's Great, or small Seal, or his Coin, or by bringing into the Kingdom wittingly, or putting away any counterfeit Coin. By killing the King's Chancellor, Treasurer, the Justices of either Bench, Justice's Itenerary, or of Assize, or Justices of Oyer and Terminer, when they sit in Judgement, or are in pursuance of their duty. 
g 25. E. 3. c. 2.  And to these they added him who being beyond the Seas, stirred up others to invade the Kingdom with an Army. 
h Dyer, fol. 298. n. 29. & f. 300. n. 38.   
2. Furthermore, those who by force or fear did so restrain the King's power, that he could not exercise his Kingly Authority, or enjoy his Prerogative, were by the opinions and Judgement of the Justices and other learned Lawyers, adjudged guilty of Treason. 
i 21. R. 2. in certain questions and answ. in that Parliament.   
3. They were also deemed guilty of this crime, who counterfeited the Kings Seal Manual, Signet, or private Seal: Or who did counterfeit, wash, or clip any Foreign Coin which was current in this Kingdom. 
k 5 Eliz. c. 11. & 14. Eliz. c. 3 18 Eliz. c. 1. 3 H. 5. c. 5. Flet. l. 1. c. 22.  They who did either by writing, word, or Act assert the Authority or Jurisdiction of any Foreign Prince, Prelate, or Estate, in Causes Spiritual within this Kingdom, or within any of the King's Dominions: 
l 1 Eliz. c. 1.  Those who denied the Oath of Supremacy upon the second tender 
m 5 Eliz. c. 1.   
4. Those also were formerly included under this crime, who detained any Castle of this Kingdom, or any other of the King's Realms forceably, any Tower, Fort, Fortresse, great Guns, or any Warlike Ammunition, and did not deliver them within six days after by Proclamation, being required. Those who did voluntarily burn any of the King's Ships, or cause them to be burnt or destroyed: Or did obstruct any Port or Haven belonging to his Dominions, or cause them to be obstructed or stopped; or did ●bet, or counsel any other person offending in the premises. 
n 14 Eliz. c. 1  Those who did endeavour to rescue or release any one who was committed to custody, or prison, for Treason against the King's person, after having been convicted; Or did divulge, or make public such endeavour by word or deed. 
o 14. Eliz. c. 2  But these died with Queen El●zabeth.  
5. To these may be added those who did draw, entice, or persuade any of the King's Subjects, or any persons within the King's Dominions from their natural Obedience to the King: Or from the Religion established: Or did absolve them by virtue, or under pretence of any Bull: And being absolved, did reconcile them to the Religion or Sea of Rome. Or those who being reconciled to the Sea aforesaid did promise Obedience to that, or any other power. 
p 23 Eliz. c. 1. 13 Eliz. c. 2.  Those also who being Subjects of these Realms, took upon them the Orders of Priests, Deacons; or Jesuits beyond the Seas, by authority derived from the Pope, or entered into any other Religious Order, and returned into any of the King's Dominions: Or being Laymen, and brought up in any of the Jesuits Colleges beyond the Seas, from the 5. year of Queen Elizabeth, did not return home by a day prefixed, and giving in their names to the Diocesan of the place where they lived, or to two Justices of the Peace, did not submit themselves to Her Majesty, and take the Oath of Supremacy. 
q 27 Eliz. c. 2.   
6. He also is guilty of Treason, who finding another falling into the crime, encourageth him, or assisteth him with help or Council; 
r Stan. Pleas, Crown, l. 1. c. 44.  For in case of High Treason are principals. 
s Id. ib. yet see 23. Eliz. c. 1.   
7. But he that is only conscious and pri●y, not any ways assisting the Traitors, he is not guilty of High Treason, but only of misprision of Treason, for concealing the Traitors. 
t 1 & 2 Ph. & Mar. c. 10. 5 & 6 Ed. 6. c. 11. 1 Ed. 6. c. 12. 23 Eliz. c. 1. 1 Eliz. c. 6.  He that privately coins monies not current in this Kingdom, incurs the penalty of Misprision of Treason, 
u 14 Eliz. c. 3  which is also to be understood of those who did either release, or endeavour to release them that were committed for Treason against the person of the King, or for suspicion of such Treason, out of Prison or Custody. 
w 14 Eliz. c. 2.  As also of those who take the King's Great Seal affixed to Letters Patents, and affix them to others. 
x Terms of the Law, v. misprision.   
8. He that is condemned of Treason, forfeits all which he hath, as well Lands [and those notwithstanding that they be entailed] 
y 26 H. 8. c. 13.  as Chattels and Rights 
z Plow. 381 391. 33 H. 8. c. 20.  to the Exchequer, and to the Supreme Power for the most part. 
a 18 Eliz. c. 1. 5 Eliz c. 1.  And being laid upon a Sledg in straw, he is drawn by a Horse to the place of Execution: where, when he comes, he is hanged up by the neck, and let down again to the ground alive: Then is his head cut off by the public Executioner, his Privities b●ing first cut off, which together with his entrails and Heart are cast into a Fire, and his Trunk cut into four parts. 
b Flet. l. 1. c. 16.  Yet in some cases, They are only drawn and hanged until they be dead. 
c Dyer, fol. 230. n. 55.  And so fare is the very memory of a Traitor condemned, that not only his Head, and the other parts of his Trunk are publicly fixed upon stakes, until they be devowred by Fowls, or rot and putrify. But even their Issue [if they have any] are in most cases despoiled of their Nobility, and deprived of all Privileges and Prerogatives due unto their Father. 
d Ful●. para. seignories, fol. 26. 27. Plowd. 391.  Now Women who are convict of Treason, are bound to a stake, and burned. 
e Flet. l. 1. c. 22.   
9 Misprision of Treason is punished with the confiscation of all their Chattels, the loss of the profits of all his Lands during life, and the Imprisonment of his body during the pleasure of the Supreme Power. 
f Terms of the Law, v. misprision.   
10. Petit Treason is, where any doth maliciously kill a Subject, under whose power and subjection the party is, as a Wife her Husband, 
g Dyer, 253. n. 103. & fol. 333. n. 25.  a Religious person his Prelate, a Son his Father or Mother, according to the opinion of some, though others contradict it, 
h Lam. 248.  a Servant his Master or Mistriffe. 
i Id. 240. Cromp. 18. Plow. 260. Dyer, 128. n. 57 12 H. 7. c. 7.  To these Antiqiuty hath added others, viz. not only those who killed their Kinsmen, but even those also, who did by any capital deceit, plot any thing against their Estates, Members, or Honours. As also those Servants who committed any such crime against their Masts: Or who lay with their Master's Wives, Daughters, or Concubines, or counterfeited their Seals. 
k Flet. l. 1. c. 37. Spec. Just. l. 2.  Now the punishment due to this crime, is, to be drawn from the Prison to the place of Execution, and there to be hanged by the neck until they be dead; 
l Cromp. Iust. fol. 18. Flet. l. 1. c. 37.  but a woman is punished for this in the case of High Treason. Their goods also are forfeited to the Exchequer, and their Lands to the Lord of the Manor, yet so as the King was wont to have a year and a day, and waste. 
m Stanf. l. 1. 6. 2.   
11. The residue of Capital Crimes are comprehended under that one name of Felony. Although Felony in a more large signification includes Treason, 
n Lamb. l. 2. c. 7. Plow. 333.  and is sometimes more strictly extended to Murder. 
o Perk. 349. 22 H. 8. c. 14.   
12. Of Felonies, there are some which are against the Commonwealth, and some which are against private persons principally, though by consequence they also are against the Commonwealth. O● the first sort are raising of Devils, Witchcraft, Conjuring, by which any one is killed: Or any other whatsoever after the first conviction, by means whereof the body of any party lies sick and languishing, and these formerly went under the name of Felony. 
p 5 Eliz. c. 16.  But at this day, those who use Invocations, Conjurations, or raising of Devils: or who take counsel of Evil Spirits, make any bargain with them, or deal with them by way of Commerce: Or who do any way command, cherish, or reward them for any end or purpose. Those who dig up any dead body out of a Grave, or Dormitory, or who draws off the skin or the bone of any dead body, to use them in Enchantments. Lastly, those who practice any manner of enchantment, charm, or sorcery, whereby any person shall be killed, destroyed, wasted, consumed, pined, or lamed, That such Offenders, their Aiders, Abettors, and Counsellors, shall suffer pains of Death as Felons, without benefit of Clergy. And it is further provided for the utter extirpation of such wicked Blasphemy; that whosoever shall take upon them by Witchcraft, Enchantment, Charm, or Sorcery, to tell or declare in what place any Treasure of Gold or Silver may be found, or lies hid: Or to provoke any person to unlawful love: Or to destroy and waste any one's Cattles or Goods or to destroy or hurt any one's person, although the same be not effected or done, every such offender shall suffer a year Imprisonment without Bail or Mainprize, and once in every quarter of the said year, shall in some market town stand openly upon the Pillory for the space of six hours, and there openly confess their error. But if being once convicted, they do again commit the offence, they shall suffer death without benefit of Clergy. 
q 1. Jam. c. 12   
13. And hither we may aptly refer, that Sodomitical sin with bruit beasts, 
r 25. H. 8. c. 16  the entertaining of Jesuits & Priests brought up in the Seminaries beyond the Sea, 
s 27. Eliz. c. 2.  the sefusing of Abjuration by Papists, and their return into England, after having abjured, 
t 35. Eliz. c. 1. 2.  the assembling of Rebels, 
u 1. Mar. c. 12. which Statute is now expired  the art of multiplying Gold or Silver, 
w 5. H. 4. c. 4.  the procuring or causing of Congregations of Masons to be assembled, 
x 3, H. 6. c. 1.  the departure of Soldiers, Mariners, or Gunners from their Captains, 
y 18. H. 6. c. 19 2. and. 3. E. 6. c. 2. 4. 5.  the exportation of Horses into Scotland: 
z 23. H 8. c. 16. 1. Eliz. c. 7.  the conveying of sheep beyond the Sea, the second time, 
a 8. Eliz. c. 3.  the return of vagabonds into England having been banished, 
b 39 Eliz. c. 4.  the cheat and robbings of those Vagabonds which call themselves Egyptians. 
c 1. 2, Phil. and Mar. c. 4. 5. Eliz. c. 20.  the idle wand'ring of Soldiers and Mariners, 
d Ibid.  the counterfeiting, or deceitful using of Letters testimonials: 
e Ib. 39 Eliz. c. 4. 17,  the riding in Arms to commit a Felony, 
f 25. Ed. 3. c. 2.  the breaking or cutting of the banks in Marshland, 
g 2. and 3. Phil. and Mar. c. 19   
14. And like unto these seem those Felonies which spring from breaking of Prisons, as where one is imprisoned for Felony, or for suspicion of Felony, and breaks ●orth; as also where a Gaoler lets such a person forth freely which we call a voluntary escape: Or lastly, the assistance and help in a third person, which we call Rescous, 
h Lamb. l. 2. c. 7. p. 224. 226. Dier, foe 90. n. 60. fo. 165. n. 60.  the making, bringing into the Kingdom, or selling that kind of Money which our Ancestors called Galley Halfpences, Su●kins, Dotkins, and Blanks, 
i 3. H. 5. c. 1.  the Imbecilling of a Record, 
k 8. H. 6. c. 12.  the violent oppressing the Subject by the King's Purveiours or others, 
l 4. E. 3. c. 3. 5. E. 3. c. 2, 25. 4. 3. c. 15. 36. E. 3. c. 2. and 4. 5. R. 2. c. 8  the compelling of any Prisoner by the Gaoler, by duress of Imprisonment and pain to become an Appellor against his will, 
m 14. E. 3. c. 10.  and thus much of the first sort of Felonies.  
15. Felonies which do primarily and chief concern private persons, are such as reflect to the hurt and prejudice of the Body only, or the Body and Goods, or the Goods only. 
n Lamb. l. 2. c. 7. fo. 218.  Those which hurt the Body, are such which either take away life, or bring some other enormous injury upon it, though not mortal; those which take away life, are comprehended under the general name of Homicide, 
o Flet. l. 1. c. 23.  but this hath divers appellations and causes from the divers Intents of the parties offending. For that which is committed through malice prepensed, is called murder, 
p Plow. 474. Glan. l. 11. c. 3. ●rac. l. 3. tr. 2. c. 4, n. 2. Dier, 〈◊〉 69. n. 28. & ●9. fo. 186. n. 3  and is punished with death. And we are to take notice here, of the ancient custom which our Ancestors used, that he who committed Murder was hanged up alive by his whole Body upon a Gibber, and was not upon any condition to be let down until he died through Hunger, but I read nothing of this: and if there were any such custom it is long time changed: For at this day they, as other Felons, are strangled with a Halter, and in this only they differ from other Felons, that their Bodies are hanged up on high in some public Road, near the place where the fact was committed, as an object to those which pass by, and are not to be removed until they be consumed. Now there are others who show more at large how and by what ways murder may be committed. 
q Stan. Pleas Crow. l. 1. c. 10. Lamb. l. 2. c. 7. fo. 230.   
16. And it is murder also where any one kills himself. For such a person is called, Felo de se: In which case Christian Burial is. forbidden and all the parties Goods and Chattels are forfeited to the supreme power, to be disposed of to pious uses, 
r Brac. l. 3. tr. 1 c. 31. P●ow. fo. 253.  yet some there are, who distinguish, whether the party laid violent hands upon himself through fear of Judgement, or being weary of his life, or through the violence of some disease: For in the first case, as other Felons, he looseth both his Land and Chattels, in the second, his Chattels only, and in the third he forfeiteth nothing. 
s Flet. l. 1. c. 36   
17. That which is committed through sudden passion & Anger, is called simple, 
t Glan. l. 14. c. 3.  Homicide or manslaughter, and it is punishable with death also; yet such is the commiseration of humane weakness with us, or the pious instigation to learning, that he, who is convict of this Crime the first time, if he can read perfectly, and distinctly, as a Clerk ought to do, is freed from death, and (his lands and goods being forfeited) is only burnt in the hand; by which means he may be known if he commit the like crime again, and committing it the second time, he is to die without mercy, 
u 18. Eliz, ●, 7:  but so great hath been the bloody wickedness of these times, that this Law hath been somewhat more exasperated. For now by an Act of Parliament in K. James his time it is decreed, that he who stabs another who hath never a Weapon drawn, or who doth not provoke him by striking first, shall lose the benefit of Clergy, although there do no precedent malice appear, if the party die within six Months, unless it be done in his own defence, or for the necessary conservation of the public place, 
w 1. Ja. c. 8.  now this favour of Clergy is not only granted to these, but even to all other Felons, unless where it is denied by some particular Act of Parliament, 
x 23. H. 8. c. 1. 25. H. 8. c, 3, 26, H. 8. c. 12.  the other kinds of Homicide are not accounted Felony. 
y Lamb. l. 2. c. 7. fo. 248.   
18. For every Homicide which is without malice is either necessary or casual, 
z West, Simbol, part. 2. fo: 48 49:  that which is necessary is likewise double, one which cannot be declined without prejudice to public Justice, the other which cannot be avoided without the death of the innocent, an example of the first sort may be given in the case of killing a Robber or Thief, who cannot otherwise be apprehended, and of the later, in case where one kills another in his own defence, the former is free from all manner of punishment, 
a Stanf, l, 1, c, 5,  the later not simply, for it is material, that the party who is slain set upon the party that kills him in his own House, or near the Ordinary highway, with a malicious intention to kill or rob him, or in case that he be moved with sudden passion, and pursues the party defending himself with an intention to fight with him, so far until he can fly no further, for in the one case he kills him without incurring any punishment at all, 
b 11, E: 1, 1, Mar, c, 12, Stan, l, 1, c, 6, 7  but in the other case, he loseth his Goods, 
c 6 E, 1, c, 9:  nor is he received and taken into grace without the express pleasure and Indulgency of the supreme power, (which notwithstanding is granted and obtained of course.)  
19 Casual Homicide is double likewise, one which is merely through misfortune, the other which is mixed also with some fault in the party who kills the other. That often happens in the Lawful prosecution of a lawful Act, and often from a bruit or an inanimate thing. Of the first kind, is, where any one is killed, with the fall of an Arm or Lop of a Tree, or a Tile from a House, after warning given by the parties who are either lopping or tiling, 
d West: Simbol: part, 2: Sec: 50, tit, Indictments  to which also may be added, that which may happen in Justs and Tournements, in regard the parties who are there in Action are supposed to be making trials of their strength in the way of friendship. And therefore K. Henry the second ordained, that those should be pardoned thereby giving them to understand how much they were obliged to perform for the King's sake when required. 
e Spec, Justice, l: 1: c: Deal Office, del Coroner:  Of the second fort is, where any are suddenly drowned in falling from a Ship, Boat, or Bridge, or slain with a Cart, Mill, or the like. In which Cases we have before related what our Law determines. 
f Fleta. l. 1. c. 25.   
20. Homicide, which is mixed with some fault of the party who kills the other, and yet is casual or accidental, is, where one that is lopping of a Tree, or tiling of an house, happens to kill another with a Lop or Tile, not having given any warning, 
g Stanf. Pleas Crown. l. 1. c. 8.  of which kind others draw many examples. 
h Flet. l. 1. c. 31. 26 H. 8. c. 16. 5 Eliz. c. 17.   
21. Felonies which are committed upon the Body, and yet deprive it not of life, is where any one out of malice cuts out the tongue, either of a man or beast, or pulls out the eyes of any Subject, 
i 25 H. 8. c. 6. 5 Eliz. c. 17.  or commits the horrible and abominable sin of Sodomy with a man, 
k Fleta l. 1. c. 37.  (but those who committed any kind of Sodomy were used to be buried alive in the Earth 
l 3 H. 7. c. 2. Lamb. l. 2. c. 7.  (or having stolen away a Widow, Wife, or Virgin, who hath an Estate in Lands or Tenements, or who hath goods, or Chattels, or who is Heir apparent to her Ancestor, and marries her being so stolen away against her will, or commits a Rape upon her; or he who assists 
m Lamb. ib. 18 Eliz. c. 7.  any one in the committing of such crime. He also where any one hath the carnal knowledge of any woman who is under the age of ten years old whether it be with her Will and consent or without: 
n 12. H. 4. c. 13. Stanf. l. 1. c. 14. Glan. l. 14 c. 6.  or lastly, where any one commits a Rape upon any woman whatsoever; to these we may also add him who marries a second Wife in the life time of his first. 
o 1 Jac. c. 11  Now that Felony seems to be of a mixed nature which is committed by him, who having any deadly infectious disease by reason of which he is prohibited by the Law to go out of his house, doth notwithstanding go a-abroad, and trade, and converse with others. 
p 1 Jac. c. 21   
22. Felonies which are committed both against body and Goods, are Piracies, Burglaries, Robberies of houses, or Castles, Burning of Houses, and Robbery. Now by Piracies we do not only mean Piratical robbing upon the Sea, but all manner of Felonies upon the Sea, or within the Jurisdiction of the High Court of Admiralty. Burglary is a violent and forcible breaking into 
q 27 H. 8. c. 4 28 H. 8. c. 5.  a House, either private or Sacred, (as into a Church) in the night time, with an intention to kill, steal, or commit any Felony within the said place; 
r West. Symbol. Par. 2. tit. Indictments. Sec. 56. Dier f. 99 n. 58.  but how far this is extended we are to inquipe of others. 
s Stanf l. 1. c. 24. Lamb. fol. 254. Fulb. foe 104. Coo. l. 4. Cases of Ap. peals, f. 40.   
23. Now that which we of our Nation call House-robbing, I do not find eypressed by our Civilians, but it signifieth a breaking, or entering into another's house or dwelling place in the day time, and a taking away of Goods, whilst there is some Body present in the House. 
t 5 E. 6. c. 9 39 Eliz. c. 15. Lamb. foe 260. Flet. l. 1. c. 37.   
24. House-burning doth not only extend to Houses and Barns wherein Corn is laid up; but also to those heaps which we call Mows, Stacks, or Reeks, if they be near unto Houses, and burned though malice. 
u Lamb. l. 2. c 7. fo. 269. 270 Fulb. foe 109.   
25. Robbery is the taking away of goods from any one's person, or o● lest the person who is owner of them, being present and not assenting. Now this is sometimes violent, and accompanied with terror, as when any man is rob by theives on the high way, by which his life is in danger: 
w Dier 224. n. 3.  and sometimes secret and Clandestine, as when a man's Purse is cut or stolen away against his privity, having in it twelve pence in moneys: 
x Lamb. foe 262, 263, 264, 265, 266.  some also affirm it to be Robbery where a man's Wife is taken or enticed away with her Husband's Goods. 
y Fleta l. 1. c. 39   
26. Amongst those Felonies which relate to Goods only, that methinks deserves to be reckoned first, which we call forging of Deeds, being committed the second time, for he who having been once convict of this crime, and is again found guilty, either of malicious forging, or causing and procuring others to forge Deeds, or knowingly to allege or plead them in Judgement, whereby any one is prejudiced, or hurt in his Title to Lands or Goods, is declared guilty of Felony, this being Felony by the Statute. 
z 5 Eliz. c. 14   
27. That which is Felony by the Common Law, and relates to the Goods only, is termed Larceny, and is a fraudulent taking away of Goods movable or personal, in the absence and against the will of the owner, 
a Lamb. 262 west. part. 4. tit. Indictments Sec. 61.  of which those Servants are as much guilty, who take away the Goods of their Masters who are dead, from the Executors, and are not reclaimed or drawn to restore them after Proclamation made, 
b 33 H. 6. c. 1.  as those who carry away Goods committed to their Custody by their masters to the value of forty Shillings, unless they be under the age of eighteen years. 
c 21 H. 8. c. 7 5 Dliz. c, 10. 27 H. 8. c. 17. 28 H. 8. c. 4.   
28. But Larceny is either Grand or petty; Grand is where the Goods stolen exceed the value of twelve pence, Petit, where they amount not to that value, and therefore this is not by some called a Felony. 
d Lamb. 267. Fulb. 101. Flet. l. 1. c. 38.  The former is Capital; the latter punishable, only by whipping and imprisonment.  
29. By what ways, and how Larceny is committed were material to understand, wherefore know that under those Goods, by the taking of which Larceny is committed, are comprehended, moneys numbered, Vessels of Silver, Garments and , meat, (unless where the Party that takes it, doth it through necessity, either to save his own life, or his Neighbours) all sorts of Grain, Hay, fruit, separated from the ground, Horses, or Mares of any age, Oxen, Cows, Sheep, Lambs, Hogs, Pigs, Hens, Ducks, Peacocks, Turkeys, or other tame fowls: and some things also which are wild, as young Pigeons which are in a Dove-house, and cannot as yet fly, Hawks from their nests, and Fishes from a Pool, or other place which is made to keep them in. 
e Lamb. 269▪ 170. Stan. l. 1. c. 15, 16.   
30. Nor is he only guilty of Felony who takes a Deer which he knows to be tame, but he also who takes Dear or Coneys out of a Park or Warren in the night, or he who hunts them either disguised or armed, if being apprehended and examined, he denic the Fact. 
f Lamb. foe 271.  Lastly, he who shears Wool from the backs of Sheep, or flaies off the skins, leaving their carcases behind them, 
g Id. 299.  or takes Apples or any other fruit separated from the Trees, or takes a Tree, which either himself or another cut down from the Owner, with an intention to steal it, is guilty of Felony. 
h Id. 273.   
31. A man may also commit Felony & theft upon that which is his own; as where I lend Vessels of Gold, etc. to another, and fraudulently steal them from him again, 
i Lamb. l. 2. c. 7. fo. 280. Stanf. l. 1. c. 17. Fleta l. 1. c. 17.  or if I receive my own Goods which were stolen, without the Authority of the Magistrate, 
k Flet. l. 1 c. 27.  and being bribed, forbear to prosecute. 
l Id. ●b.   
32. In Felony, 
m Lamb. l. 1. c. 43. Blow. fo. 475.  there are also sometimes some besides the principals whom we call accessories, no less guilty of Felony than the principals, and those not only by the Common Law, but by the Statutes also. 
n Stanf. l. 1. c. 47.  Now there is a double kind of accessary, one before the Fact, the other after accessary. Before the fact is, where any one commands or incites another to commit a Felonious Act, which he doth afterwards perform: and this albeit, that the party who so incites be not present at the Fact committed, 
o Spec. Justice. l. 1. c. deal Office del Coroner, where he makes nine sorts of accessories.  and the circumstances which in this Case render a Principal or an Accessary only, Our Lawyers do with a great deal of Art and Judgement demonstrate. 
p Stanf. l 1. c. 43. Dier fol. 108 n. 57  Accessary after the Fact, is, where any one wittingly, or ignorantly 
q Dier foe 355 n. 36.  receives, cherisheth, assisteth, and comforteth a Felon; 
r Stanf. l. 1. c. 46.  or who receives stolen goods to keep them, or to dispose of them, together with the Thief. 
s Fulb. par. Theft, fo. 202. Lamb. foe 295.  But a Wife who in this case conceals the secret of her Hushand is exculable through the necessity of her Duty, 
t Stanf. l. 1. c. 46.  which is also true, in case she commit the Fact upon his command. 
u Id. ib. c. 19  And there are also Accessories of Accessories, as where any one doth wittingly receive the Accessary of an Accessary. 
w Id. ib.   
33. The punishment due to Felons both principals as Accessories, is to hang by the neck until they die, and to forfeit their Goods and Lands, if they have any: 
x 24 H. 8. c. 45 Coo. l. 4. Beverleys' case, 124.  Only here is the difference; That the Accessary cannot be punished before the Principal be convict and Attaint. 
y Stanf. l. 1. c. 43. Blow. 97. Dye●, fol. 120. n. 10.  Now the Lands escheat to the Lord of the Manor, who notwithstanding was formerly compelled to expect, until the King had received his year and his day, and waste, unless the King himself ●ere Lord. 
z Stanf. l. 3. c. 3. Flet. l. 1. c. 28.  Moreover the Issue of Felons is so infected, that they are excluded from all hope or possibility of succeeding in the Inheritances of their Ancestors, which otherwise should have descended to them, unless there be any thing more favourably enacted in case of any particular crime, contrary to the common and ordinary form. 
a 1 Mar. c. 14 1 Jam. c. 11, 12.   
34. But these things which we have spoken concerning the punishments of Treasons and Felonies, must have their distinctions, & therefore it were requisite to explain them Now the way of impeaching any of these crimes is double; one by Appeal, 
b Stanf. l. 2. c. 52, 53, 54, 55, 56, 57, 58, 59  the other by Indictment at the suit of the Supreme Power. 
c Id. c. 59  If they proceed by way of Appeal, and that it be an Accuser, who takes upon him the proof of the crime, it is at the election of the Defendant (unless he will confess the fact) to wage his Battle with the Appellor, or to be tried by his Country. Or (in case he were a Peer of the Realm) to be tried by a Verdict of his Peers, or Pares. 
d Id. l. 3. c. 1. Flet. 1. c. 21. 31, 32.  But if he be indicted, he is left solely to the trial of his Country, or Peers. And if in either case he be convict, he is punished with Death.  
35. But it sometimes happens that the party accused through contumacy, refuseth to be tried either way, but either stands mute, or pleads not so: As by his answer Issue may be joined to come to Trial. In which cases, if it be by Appeal, he is immediately adjudged to die. 
e Dyer, 441. n. 49.  If by Indictment, then is it taken Pro Confesso, in case of Treason. And in cases of Felony, he shall be impressed, viz he shall be committed to the Prison from whence he was brought, where he shall be carried into some low dark place, and being stripped naked, he shall be laid upon the bare ground, his Pud●nd●e only covered, and his Arms and Legs pulled out by four ropes, fastened to the four corners of the room, he shall be stretched out upon his back: Then being bound in this manner, he shall have so great a weight of Iron or Stone laid upon his Breast as he is able to bear, without confusion. The day following he shall have 3. crusts of barley bread without drink; next day to that he shall have three draughts of the water next to the Prison, (povided it be not running water) but without Bread: And so by turns he shall be fed with bread or water every day until he die through the extremities of weight, hunger, and cold. 
f Flet. l. 1. c. 32. Stanf. l. 2. c. 60. Dyer. 241. n. 49.   
36. Now a Woman who is condemned for any the aforesaid Crimes, if she be with Child, hath the Execution of Judgement deferred until she be delivered of her Infant. 
g Flet. l. 1. c. 38.   
37. There is also a misprision of Felony; As in case any one knows another to have committed Felony, and doth not discover it unto the Supreme Power, or to a Magistrate. 
h Terms of the Law, v. misprision, Cromp. fol. 39  Now the punishment for this crime, is, That the party shall be committed to prison, until he have put in Security for the payment of such a Fine as the Judges shall impose upon him before whom he is convened. 
i Id. ib.  And it is to be observed; That in all Treasons and Felonies, there is a misprision of Treason or Felony comprehended. And therefore it is in the power of the Supreme Power (if in its clemency it thinks good so to do) to suppose him guilty of misprision only, who really is guilty of a greater crime. 
k Id. ib.   
38. Next to these which are capital, are those crimes which used to be punished with perpetual Exile and Banishment: As those persons, who having committed Treason or Felony, and taken Sanctuary, were accustomed, having confessed their crime before the Coroner, to abjure the Realm, and thereby avoid a greater punishment; 
l Stanf. l. 2. c. 38, 39 Terms of the Law, v. Abjuration.  but this is long since altered. 
m 21 H. 8. c. 2. 22 H. 8. cap. 14. 33 H. c. 12.  And indeed there are few Facts at this day subject to this, and many even of those are not so high: as he who kills Dear, and cannot find security to put in for the payment of the Fine imposed, is compelled to abjure the Commonwealth, 
n Charta de Forest. c. 10. Dier, fol. 238. n. 34.  which also he is bound to do who marries a Woman-Heir, having stolen her out of the custody of her Guardian, and is not able to satisfy for the value of her Marriage. 
o 13 E. 1 c. 45.  So also he who accepts of a Benefice, being elected by the Pope, 
p 13. R. 2. Stat. 2. c. 2.  And lastly, a Papist who refuseth to come to Church according to Act of Parliament. 
q 35 Eliz. c. 1.   
39 Our Statutes also inflict a great penalty upon those who sue or implead any one in a Foreign Realm, when the Action belongs properly to the Cognisance of our Courts, or where Judgement hath in the same case been given by the Justices here. As likewise upon those, who by prosecuting a Plaint in another Court, endeavour to retard or impeach Judgement given in the Supreme Courts of our Supreme Power. For such Offenders being summoned by distress, either upon the Lands in question, or upon any other of their Lands, to be made by the Sheriff to appear personally in the Chancery, or in either Bench, or before Justices particularly for that purpose deputed to answer such contempt if they appear not. Then are they, their Procurators, Attorneys, Executors, Notaries, and Summoners deprived of protection, their Lands, Goods, and Chattels forfeited to the Supreme Power, and their Bodies wheresoever found and taken, kept in Prison until they have paid a Fine to be imposed upon them at the will and pleasure of the Supreme Power. 
r 27 E. 3. c. 1. Bro. tit. Praemanire. 10.   
40. Those also are liable to this, who seek for any presentations to Churches, Prebendaries, or other Ecclesiastical Benefices from Rome: Or who seek and obtain any Process concerning the premises, any Excommucations, Bulls, or other Instruments from thence. Nor they only, but their Procurers, Executors, Notaries, Summoners, Promoters, and Assisters. 
s 13 R. 2. c. 2.  So also those who procure any Provisions from the Pope, by which they become absolved from their Obedience, or obtain any Office in any Religious House, etc. 
t 2 H. 4. c. 3.  As Archbishops, Bishops, Abbors, who paid a greater sum then usual to the Pope for their Benefices, 
u 6 H. 4. c. 1.  together with those Rectors and Vicars under the Jurisdiction of the Archdeacon of Richmond, who impose too great exactions upon the Subject. 
w 26 H. 8.   
41. To which we may add, those who defend or promote any Authority or Jurisdiction of the Pope (which he shall claim in ENGLAND) either by word, writing, or Act: Or those who shall assist, help, or comfort any manner of way any person or persons who shall defend or promote the same. 
x 5 Eliz. c. 1. 28 H. 8. c. 10. 1 Eliz. c. 1.  Those who entertain or assist any who shall bring any Bulls, Writings, or Instruments of Absolution or Reconciliation from the Sea of ROME, or from any person exercising the Authority of the said Sea: Or who shall under such colour absolve or reconcile any person, or who shall accept of any such Absolution. Lastly, those who shall bring over from the Pope or See of ROME, or from any one claiming his Authority, any Agnus Dei, Crosses, Pictures, Beads, etc. and shall deliver them to any Subject here, or procure them to be delivered or offered, to the end that they should make use of them. And those also who shall receive any such thing being offered, and not apprehend the person offering them, or not deliver him to the Ordinary, or some Justice of Peace within three days, together with the thing so received. 
y 13 Eliz. c. 2.   
42. They also come under the same notion, who being compellable, refuse the Oath of Supremacy, being lawfully tendered. 
z 1 Eliz. c. 1. 5 Eliz. c. 1.  Or who do directly, or indirectly give any money, or sustenance, or any other thing to any Jusuite or Priest remaining in any Seminary, or to any other Priest, Deacon, Religious, or Ecclesiastical person, or to the maintenance of any of their Seminaries or Colleges beyond the Seas. 
a 27 Eliz. c. 2.   
43. And lastly, Those who take or procure for Usurers by way of Usury, though under the notion of any Sale or Contract, above a tenth per annum. 
b 19 Eliz. c. 8.  But some of our Lawyers through gain or ambition, have too violently extended this strict punishment, by stretching the words of one Statute 
c 16 R. 2. c. 5.  which are meant in the generality, to every light offence of Judges [especially Ecclesiastical] 
d Cromp. foe. 52  to whom I shall only say: That that Candour of some were to be desired, and that Ignorance of others lamented, which a very learned Man did lately most accurately persuade and refute. 
e Cosmus, part 3. c. 7 fol. 85.   
44. Those Crimes which are punished with the loss of Protection are not to be esteemed light. Now they incur this, who being five times lawfully summoned in a full County, do not give their appearance to a personal Action or an Indictment, 
f 13 E. 1. c. 35 31 Eliz. cap. 3.  for they are pronounced Utlawed: And if it be a civil Action, they forfeit all their Goods and Chattels, with the profits naturally arising from their Lands. 
g Bro. forfeitures, 30.  And if it be criminal, than they forfeit all their Lands and Tenements also to the public Exchequer for ever, 
h Terms of the Law, v. Utlawry.  and are ipso facto, deprived of the benefit of all Laws, and of the privileges of Subjects, so that according to the Ancients any one might kill them unpunished. 
i Brac. l. 3. tr. 2. c. 11.  But this Law being altered, 
k 5 Eliz. c. 1.  they are now referred to a pecuniary Fine. Those also are liable to this punishment, who remove, or throw down the Sea-marks, by which Mariners are secured from wand'ring, and directed to their Port, if the Offenders be not worth a hundred pound, whereby they may with monies satisfy for their oftence. 
l 8 Eliz. c. 13.   
45. Perjury committed by any person who was of a Jury in any Court, was so odious to our Ancestors, that it was decreed, that all such Offenders should have their Meadows and Gardens digged up, their Houses pulled down, their Woods extirpated and grubbed up, and all their Lands confiscate. 
m Terms, v. Altaint.  And moreover (according to some) they were io be committed to Prison, and for ever rendered so infamous, that they were deprived of the benefit of the Laws, and their Testimonies never to be admitted in any Cause. 
n Fleta:   
46. Those who committed perjury in any Court were fined twenty pound, and suffered six month's imprisonment without Bail or Main prize, and made incapable for ever after of bearing Witness in any Court of Record.  
And if any person did procure or suborn another to commit perjury in any Court, he is to be fined forty pound: And if he have not so much in Goods and Chattels, he is then to suffer six months' imprisonment without Bale, and to stand in the Pillory in the same Town, or in some other in open Market for the space of an hour, and furthermore is made uncapable for ever of bearing Witness in any Court of Record. 
o 5 Eliz. c. 9  But perjury was wont frequently to be punished with en extraordinary Censure in that Honourable Assembly of Peers in the Starr-Chamber. 
p Dyer, fol. 242. n. 53.   
47. Next to this are those Crimes which were punished with dismembering, or Mutilation of the Body: As the cutting off the hand 
q 33 H. 8. 6. 12.  of him who presumed to strike another within the Verge of the Court of the Supreme Power. The loss of his Ear, who maliciously struck another with a Weapon in a Church or Church-yard, or who presumed to draw a Weapon for that end. 
r 5 E. 6. c. 4.  And if the person so offending happened to want his Ears, than was he burned with a hot Iron in the Cheek. But this punishment was sometimes joined with another; for those who did either bring, send, or receive, or procure others to bring, send, or receive any Sheep or Lambs alive into a Ship, to convey them beyond the Seas, had their Goods confiscate, and lost also their left Hands for the first Offence. 
s 5 Eliz. c. 3.  And sometimes this Punishment was inflicted for want of Goods, and Chattels to satisfy a Pecuniary Mulct. As those, Butchers, Brewers, Bakers, Poulterers, Cooks, Costermongers, or Fruiterers, who conspire not to sell their Victuals, but at a certain Rate agreed amongst themselves, or oblige themselves to it by Oath or Promise made amongst themselves, and have not forty pounds to pay for such Offence, they are to be punished with the loss of one Ear, and are for ever rendered infamous in the Eye of the Law, to which Punishment those Mechanics, and Labourers are Subject, who agree amongst themselves not to sell their Wares, but at such a Rate which they set amongst themselves, or not to work, but at appointed times, or not to exceed so much work in a Day, or not to finish a Work which another hath begun. (u) 
(●) 2 E. c. 15.   
Now, those who disperse false Rumours against Peers, either by word or writing, to their prejudice, may in some sort be reckoned amongst private offenders, for that they may be committed to Prison, until they produce those whom they pretend to be the first Authors of such Rumours, nor shall they scape public Justice. But without doubt, those who maliciously do commit any such offence against the Supreme Power, are to be punished by the Magistrate. 
u See the Statutes cited l. 3. title injur.   
49. Now of this rank also are those, who maliciously forge, or cause and procure others to forge any Instrument or Writing to overthrow oh call in question any ones  or Inheritance, or to subvert any ones Right to a Fee or Copyhold: or do wittingly plead or produce in Trial any such Instrument to any such end, for such offenders shall forfeit triple Damages and Costs totthe Party grieved, and shall be adjudged to have an ear cut off, standing in the Pillory, as also to have their noses slit, and to be stigmatised as an eternal mark of such falsehood and Villainy: and lastly they shall forfeit the Revenues of their Lands for life, and suffer Imprisonment for ever: but they who forge, or procure any one to forge any such Deed, orplead ill to overthrow or question the Right which another hath to Lands for Term of life, or an Annuity, or who forge, or cause others to forge any Obligation, Acquittance, or a Release, or any other such like personal writing, out of malice, shall pay to the party grieved double Costs and Damages, and shall also stand in the Pllory, lose one Ear, and suffer a years imprisonment without Bail or mainprize. 
w 5 Eliz. c. 14. Dier, 288. n. 52. 322. n. 26  next to which are those who cheat any one of money, by forged, and counterfeit Writings, the punishment of which is arbitrary: as are also many other offences, which many of our Author's mention. 
x 33. H. 8. c. 1.   
50. Nor can I here omit those Assemblies against the public Peace, which are called Routs, Riots, and unlawful Assemblies: but as for the Differences, Definitions, and Distinctions of them, shall, (for brevity's sake) refer you to others. 
y Dier, foe 188 n. 10.   
51. To which I may add the Extortions of under-Sheristes, and their Officers. Now Extortion is defined to be an unlawful exacting of money which any one shall do or practise under colour of his Office, 
z Lamb. l. 2. c. 5. fo. 179. Crompton foe 53 8 H. 6. c. 9  and this is sundry ways punished according to the quality of the offence. 
a Lamb. ib. c. 4. f. 414. Cromp. foe 48.   
52. Those maintenances also, which are used for the impeding of judgement, are to be accounted in the number of public Crimes, for Maintainers and Barrators 
b From the French word Barateur.  who are Common fomentors of Suits, and Champarters, 
c F. n. b. 171, 172.  who prosecute other men's Suits at their own Charges upon an Agreement for the thing in Action, and all unlawful desenders of personal Actions (such as Imbraceors) 
d Id. 171. A, B, C.  have punishment or dained for their offences. 
e Lamb. 4. 24. Cromp. 82. and 155. Flet. l. 2. c. 36. Dier 95. n. 39 & fo. 52. n. 6. 33. H. 8. c. 9   
53. To which pack of Knaves, we may add Adulteries, 
f 32 H. 8. c. 10. 18 Eliz. c. 3. 27 Eliz. c. 11. Dier, fol. 106. n. 22.  who formerly were for the most part purged by Canonical Penance: [but this Crime is by a late Act of this present Parliament deservedly made Felony.] Usurers, 
g 32 H. 8. c. 10. 18 Eliz. c. 3. 27 Eliz. c. 11. Dier ib. n. 22.  although these also if they exacted above ten pounds per Centum, per Annum, were subject to Ecclesiastical Censures, 
h 13 Eliz. c. 8  Monopolizers, who were called Ingro●ers, Forestallers, and Regrators, 
i 5 Ed. 6. c. 14 & 15. 4 & 5 Ed. 6. c. 21. Lamb. l. 2. c. 4. fo. 432. Cromp. fol. 69.  and many others who are punishable by Imprisonment and the Pillory, and some who are punishable also with many of the aforesaid punishments joined together: but so great an Enumeration would not rightly, or aptly correspond with the Brevity, which is required in the nature of Institutes or Institutions, wherefore I shall leave them to the more large Discussions of others, and shall only make it my Prayer, that since these Labours of ours are by God's Mercy finished, they may prove useful, and grateful to those, for whose Leisures and vacant Hours, we intended this as a Recreation.   
FINIS.