THE Young Lawyer's RECREATION. BEING A CHOICE COLLECTION Of several Pleasant Cases, Passages, and Customs IN THE LAW: For the Entertainment as well as Profit of the Reader.  
— Si quid novisti Dulcius Istis,  
Candidus imperti, si non, his utere mecum.  
LONDON, Printed for Samuel Briscoe, over-against Will 's Coffeehouse in Russel-Street, Covent-Garden, 1694.   

TO THE READER.  
Courteous Reader,  
THO' no Profession is more Honourable and Profitable than that of the Law, witness the many great Titles and vast Estates acquired thereby, yet (perhaps) it is of all other Studies the least Pleasant and Entertaining, which (no doubt) is the Reason that so few are contented with the Honour to know It, without the other Encouragement; and to such as have That, I do not say it is Unpleasant; or if it be, yet when the Pill is Gilt, it is easily swallowed. However, in some sense every Man is a Lawyer, that is, supposed to be so; so Charitable is the Law to allow Ignorance in none, because every Man would make that his Excuse, and none could tell how to confute him. And (as the Lord Vaughan says) it is irrational to suppose Men ignorant of those Laws for the breach of which they are to be punished.  
But how Intricate soever this Study may seem in general, it cannot be imagined but that among so great variety of Cases there will be found some of a double Capacity, as well to please as to instruct.  
Of this sort, Reader, is the Collection I here present you with, taken from the Reports, and other Authentic Books of Law, all along most faithfully quoted and referred to.  
Some may Object against the Method, or indeed that I have used none, but this let the Table answer, there being many Things that follow naturally enough, which yet cannot properly be reduced under the same Head; my Design herein being chief to Delight, which I thought could not be so effectually done any other way by  
Your very humble Servant Philonomus.   

THE TABLE.  


A  
ABatement of Writs, Page 19, 178, 179, 192,  
Accessary, Page 35, 36, 144.  
Action, Page 59  
Action upon the Case, Page 59, 140, 164, 167, 168, 180.  
Addition, Page 190, 192.  
Admiralty, Page 136, 137, 170.  
Advowson, Page 189.  
Age, Page 3, 15.  
Agent and Patient, Page 50, 51.  
Alien, Page 122.  
Arrest, Page 85, 163, 198.  
Assault. Page 202.  
Attainder, Page 46.  
Attaint, Page 38, 39, 79.  
Attorney, Page 191.  
Atturnment, Page 77.  
Averment, Page 101.  
Avoidance, Page 86, 87.  
Award. Page 77.    


B.  
Baron and Feme, Page 57, 97, 111, 113, 123, 169, 182, 183, 184, 185, 193, 194, 195, 204, 205.  
Barrister, Page 110.  
Bastardy, Page 103, 108, 117, 118, 119.  
Battle, Page 64, 65.  
Bond, Page 76, 82, 83, 101, 164, 195.  
Brothel-houses, Page 34.  
Buggery, Page 10, 11, 194.  
Burglary, Page 12, 59, 60.    


C  
Certainty, Page 40, 41.  
Challenge, Page 52, 60, etc. 66.  
Champion, Page 64, 65.  
Chancemedley, Page 9, 102.  
Chancery, Page 111.  
Charter, Page 54.  
Chattels, Page 19, 134, 204.  
Cockpit, Page 153.  
Commitment, Page 165, 166.  
Common and Commoner, Page 180.  
Condition, Page 41, 42.  
Confirmation, Page 119, 120.  
Contract, Page 42, 85. 168.  
Coparceners, Page 135.  
Copyhold, Page 154.  
Costs, Page 8.  
Counsellor and Client, Page 126.  
Creation of a Gentleman, Page 191.  
Customs, Page 130, 131.  
Cutpurse, Page 32.    


D  
Deed, Page 147. 196.  
Delivery, Page 147.  
Demurrer, Page 144.  
Deodand, Page 17.  
Descent, Page 88  
Devise, Page 20, 74, 88, 94, 95, 178.  
Discontinuance, Page 47, 48, 181.  
Distress, Page 77, 157, 206.  
Divorce, Page 4, etc. 113.  
Dower, Page 133, 134.  
Drinking, Page 95, 96.  
Duel, Page 60, 61, 62, 63, etc. 66, etc.    


E  
Election, Page 201, 202.  
enrolment, Page 196.  
Error, Page 78, 79.  
Estate, Page 43.  
Evidence, Page 109, 110, 183.  
Exchange, Page 150.  
Excuse, Page 44, 45.  
Execution, Page 26, 27, 28, 46, 89, 90.  
Executor, Page 129.  
Extinguishment, Page 125, 188.    


F  
Felo de se, Page 24, 25  
Felony, Page 4, 5, etc. 12, 14, 17, 18, 22, 23, 28 37, 58, 97,  
Fine, Page 102, 151, 153.  
Fine of Lands, Page 52, 121, 123, 124, 177.  
Forfeiture, Page 106, 154.  
Forgery, Page 75.  
Formedon, Page 53.  
Freehold, Page 43, 134.    


G  
Gift, Page 24, 76, 78.  
Good Behaviour, Page 202, 203.  
Goods, Page 22, 141, 148, 149.  
Grants, Page 46, 47, 76, 86, 146, 175, 176.    


H  
Hang, Page 186.  
Heir, Page 19, 88, 135.    


I  
Idiot, Page 2, 3.  
Jews, Page 114, 115.  
Ignorance, Vide the Preface.  
Indictment, Page 4, etc. 10, 11, 13, 23, 24, etc. 32, 33, 58, 150, 158, 159, 160, 194.  
Infant, Page 17, 52, 53, 56, 86, 97.  
Intention, Page 85.  
Jointenants, Page 133.  
Judge, Page 50, 158, 159.  
Judgement, Page 45, 46, 48, 49.  
Jury, Page 74, 109.  
Justification, Page 102, 103, 104, 139, 143, 167.  
Justs, Page 64.    


L  
Law, Vide Preface, etc. Page 105.  
Presumption of Law, Page 105, 106.  
Lease, Page 39, 40, 41, 78, 119, 188.  
Legacy, Page 18, 72, 73, 80, 87, 88, 94, 95, 141.  
Livery of Seism, Page 53, 54, 55, 77.  
Lunatic, Vide Non Compos Mentis.    


M  
Manslaughter, Page 70, 71, 72, 92.  
Market Overt, Page 142.  
Marriage, Page 1, 2, 3, 4, 5, 108.  
Master and Servant, Page 169, 171 172.  
Masters in Chancery, Page 111.  
Monk, Page 46. 47.  
Murder, Page 70, 71, 111, 112, 115.    


N  
Names, Page 19, 81, 178, 179.  
Night, Page 77.  
Non Compos Mentis, Page 16, 25, 26.  
Non Obstante, Page 75.  
Nonsuit, Page 108.  
Not Guilty, Page 200.  
Nuisance, Page 153, 154.    


O  
Oath, Page 114, 116, 124.  
Offences, Page 96, 97.  
Outlawry, Page 92, 93, 94, 107.    


P  
Patent, Page 159.  
Payment, Page 185.  
Pictures, Page 186.  
Play, Page 132, 139, 140, 193.  
Plea in Bar, Page 14, 134, 173.  
Possession, Page 173.  
Practice, Page 83.  
Prerogative, Page 112.  
Presentation, Page 189, 201.  
Prince Committed, Page 165, 166.  
Privilege, Page 186.  
Prohibition, Page 57, 116, 190, 204.  
Promise, Page 195.  
Property, Page 142, 189, 190.  
Provocation to a Challenge, Page 66.    


Q.  
Queen, Page 166.  
Queen Dowager, Page 167,    


R  
Rape, Page 12, 13, 14, 15, 16.  
Common Recovery, Page 122, 184.  
Release, Page 98.  
Remainder, Page 20, 21, 107.  
Remitter, Page 181.  
Rend, Page 105, 145, 146.  
Replevin, Page 155, 156.  
Reversion, Page 47.  
Rings, Page 128.  
Robbery, Page 30, 31, 32.  
Ropedancing, Page 153, 154.    


S  
Sheriff, Page 50, 91, 101, 198.  
Simony, Page 187, 189.  
Slander, Page 56, 86, 91, 148, 156, 160, 161, 162, 173, 174, 175, 186, 199, 200, 203, 204.  
Sodomy, Vide Buggery.  
Stews, Vide Brothel-Houses.  
Surrender, Page 39, 40.    


T  
Tail, Page 136, 177.  
Tenant in Common, Page 22, 136, 137.  
Tenant by Courtesy, Page 99, 100, 149, 150.  
Tender, Page 197.  
River Thames, Page 84.  
Trades, Page 82, 83, 158, 159.  
Treason, Page 26, 29, 151, 152, 167.  
Trespass, Page 43, 44, 57, 96, 97, 101, 103, 104, 139, 157, 169, 180.  
Trick, Page 84.  
Trover. Page 193.  
Tournaments, Page 64.    


V  
Uncertainty, Page 40, 41, 45.  
Vourcher, Page 138.  
Uses, Page 43.    


W  
Wife, Page 130, 168, 182, 183, 184, 185, 193, 204.  
Will, Page 43, 130.  
Witches, Page 18, 156, 157.  
Witness, Page 124, 127, 128, 197.  
Woman Bailiff, Page 24.  
Words, Page 29, 30, 70, 71, 151, 152, 181.  
Writ, Page 19     

Common Law.  
BEfore I come to particular Cases, it may not be impertinent, I hope, to consider a little what is meant by these Words the Common Law, perhaps not so commonly understood as imagined, since I find the Learned themselves differ about them; and first let us see what is said in Doctor and Student, Lib. 2. cap. 2. there you may observe that by the Common Law is understood such things as were Law before any Statute made in that point that is in question, so as that point was holden for Law by the general or particular Customs and Maxims of the Realm, or by the Law of Reason, and the Law of God, no other Law added to them by Statute, or otherwise. For Instance, It is said that at the Common Law Tenant by the Courtesy, and Tenant in Dower were punishable for Waste, i. e. that before any Statute of Waste made, they should be punished for it by the Grounds and Maxims of the Law used before the Statute made in that point; But Tenant for Life or Years were not punishable by the said Grounds and Maxims till remedy was given against them by Statute, and therefore 'tis said that at the Common Law they were not punishable for Waste.  
Glanvil and Bracton affirm that the Law of England was Jus non scriptum in their times: And Sir John Davies says (in the Preface to his Reports) that our Ancient Reports of the Law are but Comments or Interpretations upon the Text of the Common Law, which Text (says he) was never originally written, but hath ever been preserved in the memory of Men, tho' no Man's memory can reach to the Original of it, for (goes he on) the Common Law of England is nothing else but the Common Custom of the Realm, and a Custom which hath obtained the force of a Law is always said to be Jus non scriptum, for it cannot be made or created either by Charter or by Parliament, which are Acts reduced to Writing, and are always matter of Record; but being only matter of Fact, and consisting in use and practice, it can be Recorded and Registered no where but in the memory of the People, for a Custom takes beginning and grows to perfection thus; when a reasonable Act once done is found to be good and beneficial to the People, and agreeable to their nature and disposition, then do they use it and practice it again and again, and so by frequent iteration and multiplication of the Act, it becomes a Custom, and being continued without interruption time out of mind, it obtains the force of a Law. So far Sir John Davies: But sure what the Lord Vaughan lays down, fol. 163. is very consonant to Reason, that in truth most of the Common Law cannot be conceived to be Law otherwise than by Acts of Parliament, or Power equivalent to them, whereof the Rolls are lost, for always there was a Power and Practice of making new Laws: And again fol. 358. Many things are said to be prohibited by the Common Law, and indeed most things so prohibited were primarily forbidden by Parliament, or by a Power equivalent to it in making Laws, which is the same, but are said to be prohibited by the Common Law, because the original of the Constitution or Prohibiting Law is not to be found of Record, but is beyond memory, and the Law known only from practical proceeding and usage in Courts of Justice, as may appear by many Laws made in the time of the Saxon Kings, of William the First, and Henry the First, yet extant in History, which are now received as Common Law. So if by accident the Records of all Acts of Parliament now extant, none of which is elder than 9 H. III. (but new Laws were as frequent before as since) should be destroyed by Fire, or other Casualty, the Memorials of Proceeding upon them found by the Records in Judicial Proceeding, would upon like reason be accounted Common Law by Posterity.   

A DOCTOR in PHYSIC Eminent for the CURE of all sorts of VENEREAL, SCORBUTIC, and DROPSICAL PERSONS, still lives in Great Knight rider's Street, nigh DOCTORS-COMMONS, and of whom any Person may have Advice, and a perfect CURE, let his or her Disease be of the longest Date, and with the worst of SYMPTOMS. His HOUSE is known by a BLUE BALL over the DOOR.   

THE Young Lawyer's RECREATION.  

Marriage.  
A MAN contracts with a Woman to Marry her, and after Marries another Woman, and the first Sues him in the Spiritual Court, and by Sentence there, his Marriage with the Second is adjudged void, and that He and the first Woman are Man and Wife: Noy was of Opinion (as Sergeant Windham said) that by this Sentence the Man and first Woman were complete Baron and Feme, without any other Solemnity: But this was denied by Justice Twisden, who said the Marriage must be Solemnised before they can be Man and Wife, 1 Siderf. 13. Sir Robert Pain's Case.  
So Note, The Spiritual Court may unmarry, i. dissolve a Marriage, but they cannot Marry by such Sentence, for Matrimony is not accounted consummate by our Law until it be celebrated in fancy Ecclesiae, or, etc. by one in Sacred Orders, according to the Form in the Book of Common Prayer.  
Two were Married by a Parson in Holy Orders during the time of the Act against Marriages by them, and which enabled Justices of Peace to Marry: The Justices of Peace upon Petition, dissolved this Marriage; but the whole Court now was of opinion, That the Marriage being once lawfully Solemnised, and without Impediment, the whole World could not dissolve it, being by one in Sacred Orders, tho' at an Alehouse, and at Twelve of the Clock in the Night. 1 Siderf. 64. Tarry and Brown's Case.   

Whether an Idiot may contract Matrimony.  
THO' it be generally said, That the Contracts of Idiots are void, because such are natural Fools, yet it was adjudged, Trin. 3. Jac. B. R. in the Case of Styles and West, that an Idiot may consent to Marriage, and his Issue shall be Legitimate. Shep. Gr. Abr. tit. Idiot, & 1 Siderf. 112. and by my Lord Coke, the Wife of an Idiot shall be endowed. 1 Inst. Shep. says there, If he have so much Knowledge that he can read, or learn to read by instruction and information of others, or can measure an Ell of Cloth, or Name the Days of the Week, or beget a Child, Son or Daughter, or such like, whereby it may appear he hath some light of Reason, than he is no Idiot naturally; and citys for this Terms Ley. Some doubt if Begetting be any Evidence of Reason; what think you of an Horse or an Ass that beget, but most unreasonably; say rather he can beget like these by Instinct, Natural perhaps to him as his Folly. Conjunctio Maris & Feminae est de jure Naturae. 1 Inst. 187.   

The Age of Consent to Marriage.  
A MAN cannot consent to a Marriage before the Age of Fourteen, which are his Years of Discretion; but a Woman may consent at Twelve, for the Law tenders the speedy advancement of Women, quia maturiora sunt vota Mulierum quam Virorum.  
Note, If the Man be above Fourteen, and the Wife under Twelve, or if the Wife be above Twelve, and the Man under Fourteen, yet may the Husband or Wife so above the age of consent, disagree to the Espousals, as well as the party that is under the age of Consent; for the Advantage of disagreement must be reciprocal. Babington and Warner's Case. 3. Inst. 89.   

Marriage in some sort Felony by the Common Law.  
BY the ancient Law of England, if any Christian Man did Marry with a Woman that was a Jew, or a Christian Woman Marry with a Jew, it was Felony, and the Party so offending should be burnt alive. 3 Inst. 89.  
Contrahentes cum Judaeis, Judaeabus, Pecorantes, & Sodomitae in terra vivi confodiantur, etc. Fleta lib. 1. cap. 35. §. Contrahentes.   

Whether a Man divorced from his Wife causâ Adulterii, and Marrying a Second in her Life, be a Felon.  
ONE Williams Married a Wife, and was divorced from her causâ Adulterii, and then Married another, for which he was indicted upon the Statute of 1 Jac. cap. 11. for having two Wives: And if this were within the Proviso of that Statute which provides for those who are divorced, was the question. [The Words are, Provided that this Act shall not extend to any Person or Persons that are or shall be at the time of such Marriage divorced by any Sentence had, or hereafter to be had in the Ecclesiastical Court, nor to any Person or Persons where the former Marriage hath been, or hereafter shall be by Sentence in the Ecclesiastical Court, declared to be void, and of no effect.] 'Twas resolved by Brampston and Heath, (caeteris absentibus) that it is within the Proviso, for it speaks generally of Divorce, and this is a penal Law. Heath said, That by the Law of Holy Church the Parties divorced, causâ Adulterii, might Marry, but Pars rea, not without Licence; and cited the case of Ann Porter (which see Cro. Car. 461. 2. 3.) who was divorced from her Husband causâ saevitiae, and afterwards Married one Rooks, and being indicted upon this Statute, it was doubted and debated whether it were within the Proviso or not; but resolved, It was not, because only a divorce à Cohabitatione, and a temporal Separation until the Anger passed; but the Divorce here is à Vinculo Matrimonii. Trin. 17. Car. March Rep. 101.  
Quaere the difference between these Cases, for tho' in former times it was questioned, Whether a Man and his Wife Divorced causâ Adulterii might Marry again, yet now it is made clear by the Canons, That they may not, for this is no absolute Divorce, being ex causâ subsequent, and only a Separation à Mensa & Thoro, freeing the Parties from the performance of Conjugal duties only, the one with the other. Vide Cro. Eliz. 908. Stephen's and Totty's Case, and Moor 665. where the Husband after such a Divorce, causâ Adulterii, released an Obligation made to his Wife before the Coverture, and adjudged a good Release; which proves that the Coverture continues, and that there is no dissolution à Vinculo.  
In the Case of Ann Porter, as reported by Crook, it was said by the Court, If she were suffered to be within the Proviso, many would be Divorced upon such pretence, Scil. Causâ Saevitiae, and instantly Marry again, whereby many inconveniencies would ensue; whereupon she was advised, Not to insist upon the Law, but to procure a Pardon to avoid the danger; for it was clearly agreed by all the Civilians and others, that the Second Marriage there was unlawful, and she in danger to be adjudged a Felon by the Statute. Note the Decree was, Quod propter Saevitiam of her Husband towards her, she should be separated à Mensâ & Thoro from him; but no Word of Divorciamus was therein; and expressly intimated in the Sentence, that she should not marry to any other during the life of the said Porter.  
It should seem therefore, that where Sentence of Divorce is given, as in the Case of Williams, causâ Adulterii, there such Persons Marrying again shall not be in danger to be Felons by the Statute, which being a Penal Law concerning Life, aught to be favourably expounded in favorem vitae; and that the Proviso extends to this kind of Divorce ex causâ subsequent, i. e. Adultery, the Words being of Divorces in general, where Sentence is given in the Ecclesiastical Court, and not only where the former Marriage is by Sentence declared void. Yet some are of opinion, That the Proviso doth not intent, but when there is Sentence of an absolute Divorce, as in Causes preceding the Marriage, viz. Pray contract, Consanguinity, Affinity, and Frigidity, which dissolve à Vinculo, and the Marriage declared void ab initio. But vide 3 Inst. 89. and Hales, Pla. Cor. tit. Felenies by Stat. that this Branch of the Statute in respect of the generality of the Words, privilege the offender from being a Felon, as well in the case of the Divorce à Mensâ & Thòro, as where it is à Vinculo Matrimonii; and yet in the case of the Divorce à Mensâ & Thoro, the Second Marriage is void, living the former Wife or Husband. And if there be a Divorce à Vinculo Matrimonii, and the adverse Party appeal, which is a continuance of the former Marriage, and suspend the Sentence; yet after such a Divorce, the Party Marrying is no Felon within this Statute, in respect of the generality of this Branch, altho' the Marriage be not lawful.  
The offender against this Statute may have the benefit of his Clergy. 3. Inst. 89.   

Where notwithstanding one is acquitted, he shall be forced to pay Costs.  
IF Baron and Feme be Sued in the Ecclesiastical Court for Polygamy, and there it appears that the Wife was Married before to I. S. within the age of Consent, and afterwards at the Age of Consent did disagree, and Married the Defendant, and so the Defendants are acquitted; yet if the Court tax Costs to the Plaintiff, no Prohibition shall be granted, because they have Jurisdiction of the Cause, and it is the Custom there to tax costs where the Plaintiff has causam litigandi; and a Prohibition was denied. 2 Rol. 299. Blackdon's Case.  
See 2. Brownl. 36. the same Case reported contrà, that a Prohibition was granted, for it was injustice to allow Costs to one who had vexed them without cause, and when they had given Sentence against the Informer.   

Chancemedly, or casual Homicide.  
IT is where a Man doing a lawful act, without intent of hurt to another, happeneth to kill a Man casually. By the Law of God there was a City of Refuge appointed for such Person to flee unto, for the Act happening in such sort, seemeth to be the work of God himself. But by our Law he shall forfeit his Goods, in regard that a Subject is killed by his means.  
Shooting at Rovers, or at a Bird, or hewing a Tree, and the Hatchet-head flies off, or a Schoolmaster in reasonable manner beating a Scholar, or a Father his Son, or a Master his Servant, and Death ensues, it is Chancemedley. Dalt. 351. 352. Quaere, If a Man beat his Wife for Correction only, and she die thereof.  
King William Rufus was shot by accident in New Forest by Sir Walter Tyrel. And in the Reign of King James I. Archbishop Abbot, a Man of a holy and unblameable Life, (meddling with edged Tools that he used not to handle in his Study) by a sad accident killed a Keeper with a forked Arrow, as he was shooting at a Deer, where-upon he retired to Guildford in great perplexity; but the King granted out a Commission to inquire whether casual Homicide did make the Archbishop irregular, and in the disquisition of it, he found many Friends that restored him to his Palace. Wilson's King James. 198.   

Buggery, or Sodomy.  
BUGGERY is a detestable and abominable Sin, not to be named amongst Christians, committed by carnal Knowledge against the Ordinance of the Creator, and Order of Nature, by Mankind with Mankind, or with brute Beasts, or by Womankind with brute Beasts. 3 Inst. 58.  
Bugeria is an Italian Word, and signifies this description; and it was complained of in Parliament that the Lombard's (Italians) had brought into the Realm the shameful sin of Sodomy, inter Christianos non nominandum, as it is said Rot. Parl. 50 E. 3. nu. 58.  
The words of the Indictment be, Contra ordinationem Creatoris & naturae ordinem, rem habuit veneream, dictumque puerum carnaliter cognovit, etc. so as there must be penetratio, i. e. res in re, either with Mankind, or with Beast, but the least penetration maketh it Carnal Knowledge. See the Indictment of Stafford, Coke, lib. Intr. for committing Buggery with a Boy, for which he was attainted and hanged.  
Emissio Seminis makes it not Buggery; but is an Evidence in that case of penetration. 3 Inst. 59  
If the Party Buggered be within the age of discretion, it is no Felony in him, but in the Agent only. ib.  
Note the Words of Stat 25. H. 8. c. 6. that makes this offence Felony, are, No Person offending, etc. which extends as well to a Woman as to a Man; and therefore if she commit Buggery with a Beast, she is a Person that commits Buggery with a Beast, to which end the Word Person was used, and the rather, for that somewhat before the making of this Act, a great Lady had committed Buggery with a Baboon, and conceived by it, etc. ibid.  
And of late Years one Hicks was Indicted at the old Bailie upon this Statute having suffered a Dog to copulate with her, which being fully proved, and found by the Jury, she was condemned, and hanged at Tyburn, and the Dog on a Tree by 3 Keeble 800.  
See Hutton's Rep. 115. the Lord Audley's Case. He was Indicted that Deum prae oculis non habens, nec naturae ordinem respiciens, sed instigatione Diabolicâ motus, etc. Vi & Armis in quendam Florence Fitz-Patrick, Yeoman, insultum fecit, & cum eodem felonicè, & contra naturam rem veneream habuit, ipsumque F. etc. carnalitèr cognovit, peccatumque illud Sodomiticum, etc. cum eodem F. commisit, etc. The like Indictment for the same offence, with the same Person at another time; and being tried by his Peers, Twelve of the Lords acquitted him, and Fifteen found him guilty; and so he had Judgement.   

Felony, Rape, Burglary.  
IF a Woman kill a Man that assaults her to ravish her, 'tis not Felony, because he comes to commit a known Felony himself. Hales, Pla. cor. tit. Felonies.  
If a House be broken and entered with an Intent to commit a Rape, it is Burglary, whether the Intent be executed or not: (Hales, tit. Burglary) For note, Rape was Felony at Common Law; then by Stat. Westm. 1. c. 13. made but Misdemeanour; then by 13 E. 1. c. 34. restored to Felony again.  
Rape is a violent deflowering of a Woman, or carnal Knowledge had of the Body of a Woman against her Will.  
If a Woman at the time of the supposed Rape do Conceive with Child by the Ravisher, this is no Rape; for a Woman cannot Conceive with Child, except she doth consent. Dalton's Inst. cap. 160. pag. 392.  
One W. D. was Arraigned in Banco Regis upon an Indictment of the Rape of a Girl of the age of Seven Years, Scil. Quod ipsam felonicè rapuit & carnalitèr cognovit, he pleaded Non Culp. but was found Guilty upon the Evidence of several Matrons: But note, the Court doubted of a Rape in so tender a Child; but had she been Nine Years old, and more, than it might be otherwise. Dyer. 304. pla. 51. Post.  
(The Law is, That a Wife shall not be endowed, unless she be passed the age of Nine Years, at the time of the Death of her Husband, and the reason is Quia Junior non potest dotem promereri neque virum Sustinere. Co. Lit. Sect. 36. (which perhaps was the ground of the Opinion in the former Case.)   

One Woman Principal to the Rape of another.  
IF a Man and a Woman be present, with purpose that the Man shall by Violence carnally know the Body of another Woman there also present, against her Will, and the Man doth the fact in the presence of the other Woman; she being present shall be a Principal Ravisher as well as the Man; He the Agent, and She the Co-adjutant: And so one Woman may be a Principal to the Ravishment of another. Dod. 138. Dalton 392. cap. 160.   

To Ravish a Harlot, Felony.  
IT is a good Plea in an Appeal of Rape to say, That before the Ravishment supposed, she was his Concubine, as Bracton says. And yet to ravish an Harlot against her will is Felony; for Licet Meretrix fuerit ante, certe tunc temporis non fuit, cùm nequitiae ejus reclamando consentire noluit. Bract. l. 2. Dalton ubi sup.   

Consent to Rape.  
NOTE, Tho' if a Woman prove with Child, it is no Rape, for that she cannot conceive unless she consent, as it was observed before; yet if a Man Ravish a Woman, who consents for fear of Death, this is Ravishment against her Will, for that Consent ought to be voluntary and free. Dalton ubi sup.  
To Ravish a Woman where she neither consents before nor after; or to Ravish any Woman with force, tho' she do consent after, is Felony, and the offender has no benefit of Clergy. ibid. 13 E. 1. 34. 6. R. 2. c. 6.  
But if a Woman be under Ten Years, then, tho' she do consent before, yet by Stat. 18. El. cap. 7. it is a Rape. Hales, tit. Felonies by Stat. Cromp. 47. Dalt. 393.  
By the Statute, 6 R. 2. c. 6. both the Ravisher and Ravished, where she consents after the fact, are dissabled to have, or challenge any Inheritance, Dower, or Joint Estate, after the death of her Husband, or Ancestor.  
Note, Where Rape is, there must be penetratio, & emissio Seminis in the Case. Co. 12. 37. For altho' there be emissio Seminis, yet if there be no penetration, that is, res in re, it is no Rape; for the Words of the Indictment be, Carnaliter cognovit, etc. 3 Inst. 60. But emissio Seminis may be an Evidence in case of Rape of Penetration. 3 Inst. 59 See Hutton's Rep. 116. in the Lord Audley's Case.   

At what Age a Woman may be Ravished.  
THE doubt that was made in 14 Eliz. Dyer, f. 304. (before) at what age a Woman Child might be Ravished, was the cause of the making of the Act of 18 Eliz. cap. 6. for plain declaration of the Law [That if any Person should unlawfully know and abuse any Womanchild under the age of Ten Years, every such unlawful and carnal Knowledge should be Felony, and the offender therein being duly convicted, shall suffer as a Felon, without allowance of Clegry.] 3 Inst. 60.   

A Woman Attainted, Ravished.  
IF a Woman attainted be Ravished, after Pardon she shall have an Appeal of Rape. 3 Inst. 215.  
We read in Story, that chaste Lucretia being Ravished, she was found in extreme heaviness, and it was demanded of her, Salvan '? She answered, Quomodo Mulier salva esse potest laesâ Pudicitiâ? And yet thereof it is truly said, Duo fuerunt, & unus commisit Adulterium.   

Non compos Mentis.  
A MAN Non sanae Memoriae gives to himself a mortal Wound, and before he dies, he becomes of sound Memory, and after dies of this Wound; here he shall not be felo de se; but if one gives himself such a Wound while he is of sound Mind, and after becomes non sanae Memoriae, and dies thereof, there he shall be felo de se.   

Deodand.  
IF a Man fall from a Ship, Cart, or other Vessel, in aqua dulci, fresh Water, 'tis a Deodand; otherwise in salt Water, being any Arm of the Sea, tho' it be in the body of the County; because of the dangers it is subject to upon the raging Waves in Windy and Tempestous Wether. 3. Inst. 58.  
If an Infant within the age of discretion, scil. Fourteen, be slain by a fall from a Cart, Horse, Mill, etc. no Deodand; but if slain by a Horse, Bull, or, etc. then a Deodand. ibid.   

A Lodger kills one that assaults a House, no Felony.  
IF one break a House with intent to rob it, or kill any therein, and one within the House, tho' not the Master, (but a Lodger, or a Sojourner) kill him; this is no Felony. Cro. Car. 544. Cooper's Case.   

Physician kills his Patient.  
IF one that is no Physician allowed, take upon him to give Physic, and kill his Patient, this is Felony; but if he be a Physician allowed, and do so out of Ignorance or Negligence, Contra. Stamf. lib. 1. pag. 16. Fitz. Coron. 163.   

To provoke Love by Witchcraft, the Second offence Felony.  
IF one shall the Second time use any Conjuration, or Witchcraft, to provoke Love in a Maid, this will be Felony, by 1 Jac. cap. 12.   

Servant kills one that hath killed his Master.  
IF one hath killed my Master, and I in a hasty and fresh pursuit of him, kill him, no Felony. Kytch. 25. If he be a Thief, 21 H. 7. 41.   

Two Persons of the same Name pretend to a Legacy.  
IF there be a dispute between two Persons pretending to the same Legacy; as if the Devise be to Thomas Styles, without other distinction of the Person, and there be two of that Name, of equal respect with the Testator, or both alike, his Friends, or Acquaintance; here the Executor hath his election to deliver the Legacy to which of them he please. Yet some are of opinion, that in such case the Legacy is void by reason of uncertainty. Orphan's Legacy 441. 10.   

Faith and Troth.  
A WRIT was ad Respondendum I. S. & Fidei Uxori ejus. The Defendant pleaded in Abatement of the Writ, because the Name of the Wife was Faith in English, and pretended it should be Fidi. Rhodes said, he knew a Wife who was called Troth, and Named Trothia in Latin, and well: And the Writ was adjudged good in the former Case. Goldsb. Rep. fol. 86.   

Where Chattels shall go to the Heir.  
SEE some instances hereof in Dr. and Stud. lib. 2. cap. 12. and 1 Inst. 8. a. in fine. 18. b. in med. and 185. b. fine, and the office of an Executor 81. and 84.  
If a Man be seized of a House in Fee, and a Window or Door of the House be taken off to be mended, during which the owner of the House dies, yet his Heir shall have them by descent, and not the Executors; for tho' in fact they are for a time divided from the House, yet in judgement of Law they always remain parcel of it. 1 Rol. Rep. 102.   

Devise good to him in Remainder, tho' the particular Tenant die before the Testator.  
ALTHO' where a Legatary dies before the Testator, a Bequest of Goods or Chattels to such Legatee becomes void to his Executors; yet if there be a Devise of Land to one for Life, the Remainder to another in tail, and the Devisee for Life die before the Testator, the Devise of the remainder continues good. See Perk. Sect. 567, 568.   

Where a Remainder may depend without a particular Estate.  
A LEASE is made to A. for the Life of B. the remainder to C. in Fee; A. dies, now before an Occupant enters, here is a Remainder without a particulur Estate, and yet good. 1. Inst. 298. a. in medio.  
Which Case disproves the opinion of Justice Clinch. Owen's Rep. 39 viz. That every Occupant aught to be in possession at the time of the death of the Tenant, and that otherwise the Law casts the Interest upon him in the Reversion; which opinion is there likewise denied by Gawdy and Chute Justices: And as my Lord Coke says, He is in Law called an Occupant, because his Title is by his first Occupation, (which sure cannot be supposed in the time of the particular Tenant) A Remainder is defined to be the residue of an Estate in Land, depending upon a particular Estate, and created together with it, yet as it may in some case depend without a particular Estate: So the continuance of the particular Estate is not always requisite to support the Remainder; as if a Lease be limited to an Infant, the Remainder over, and after the Infant refuses, yet the Remainder is good. So if a Copyholder in Fee surrender to the use of the Lord for Life, the Remainder over; So if Tenant for Life, and he in the reversion, grant their Estate to the Tenant himself for Life, the Remainder over, it is good. 1. Siderf. 360.   

A Remainder vesting in an Instant, yet good.  
A RENT is granted to the Tenant of the Land for Life, the Remainder in Fee, this is a good Remainder, tho' the particular Estate continued not, for eo instant that he took the particular Estate, eo instant the Remainder vested, and the suspension in Judgement of Law grew after the taking of the particular Estate. 1 Inst. 298. a. in medio.  
A Rent is granted to B. for the Life of A. the Remainder to the Heirs of the Body of A. this is a good Remainder, and yet it must vest upon an instant. 7 H. 4. 6. immediately upon the Death of A. who is cestuy que vie, the Remainder vests in his Heir. See Finch's Law. 69.   

Tenants in Common.  
LEASE for Life, Remainder to the right Heirs of I. S. and I. D. who are living, their Heirs shall take it in common; not Jointly, for that they cannot take at the same time, for by intendment both Fathers will not die together. 18 E. 3. 28.   

Felonious Taking.  
A. SEEING the Horse of B. in his Pasture, and having a mind to steal him, comes to the Sheriff, and pretending the Horse to be his own, obtains him to be delivered unto him by a Replevin; yet this is a Felonious and Fraudulent taking, for the Replevin was obtained in fraudem Legis. 3 Inst. 108. 1 Siderf. 254.   

Felony to take his own Goods.  
A MAN delivers Goods to another, and afterwards the Bailor privately steals them from the Bailee, with an intent to charge him, etc. this is Felony, and in judgement of Law he is said in this case to take the Goods of another, the Bailee having Jus possessionis, or a special property; and the Bailor Jus Proprietatis. 3 Inst. 110. Keilway 70. Ha. Pl. Cor. 67.  
One Farr a Solicitor had obtained Judgement against the casual Ejector, upon which he sued an Hab. fac. possessionem, and the Sheriff's Bailiffs entered the House with him, and broke a Door where certain Goods were, and took the Woman to whom they belonged, and required special Bail of her, for default whereof they carried her to Newgate, and then Farr took the Goods, which were of a great Value: For which being Indicted, and it appearing he did all this with intention to take the Goods, without any colour of Title for his Client, he was found guilty of Felony; and tho' he was a Solicitor, and had been convicted of Forgery before, yet he could not read, and so he was hanged. 1 Sid. 254.   

Felony to steal a Winding-Sheet.  
ONE William Haines digged up the several Graves of three Men and one Woman in the Night, and took their Winding-Sheets from their Bodies, and buried them again: 'Twas resolved, The property of the Sheets remained in the owner, scil. in him (or them) who had property therein when the dead Body was wrapped therewith (viz the Executors, Administrators, or other owner of 'em) vide 11. H. 4. If Apparel be put upon a Boy, it is a gift in Law, 'cause the Boy hath capacity to take it; but a dead Body being but a lump of Earth, hath no capacity: Also it is no gift to the Person, but bestowed on the Body for the reverence towards it, to express the hope of Resurrection: Besides, one cannot relinquish the Property he hath to his Goods, unless they are vested in another. Note, Haines had his Clergy, and escaped death. Co. 12. 113. and 3 Inst. 110.   

Woman Bailiff.  
A WOMAN may be sued in Account as Bailiff, for she may well discharge the Office of a Bailiff. 19 H. 6. 5. b.   

Felo de se, yet the kill involuntary.  
A. GIVES B. such a Stroke, as he fells him to the Ground; B. draws his Knife, and holds it up for his own defence, A. in haste meaning to fall upon B. to kill him, falls upon B's Knife, whereby he is wounded to death; he is felo de se, for B. did nothing but what was lawful in his own defence. 3 Inst. 54. Ha. Pl. Cor. 28. and Bac. Elem. 4.  
So if a Gun be discharged with a murderous intent at I. S. and the Piece break, and strike into the Eye of him that dischargeth it, and killeth him, he is felo de se, and yet his intention was not to hurt himself, but in criminalibus sufficit generalis malitia intentionis cum facto paris gradus, for if one persuade another to kill himself, and is present when he doth so, he is a Murderer: But Quaerae, If A. lay empoisoned Fruit for a Stranger, and his Father or Mother come and eat it, Whether this be petty Treason, because it is not altogether Crimen paris gradus. See Bacon's Elem. 59, 60.   

A Non compos mentis wounds himself mortally, and dies Compos.  
ONE during the time that he is Non compos mentis, gives himself a mortal Wound, but dies not thereof till he has recovered his memory, he is not Felo de se, because the Stroke which caused his death was given when he was not compos mentis, Et Actus non facit Reum, nisi mens sit Rea. 3 Inst. 54.  
A Man that is Non compos mentis kills another, this is no Felony; the same for a Lunatic during his Lunacy. But Note, He that incites a Madman to kill another, is a Principal Murderer.   

A Non compos mentis can't commit Treason.  
THE ancient Law was, that if a Madman had killed, or offered to kill the King, it was Treason. 4 Rep. 124. (Nec veniam laeso numine casus habet. Ovid.) But now by Stat. 25. E. 3. by force of these Words, Fait compasser ou imaginer la mort. He that is not Compos Mentis, and totally deprived of all compassings and imaginations, cannot commit High Treason by compassing, etc. 3 Inst. 4. 6.   

Where Execution was done upon a Man for the death of a Child, the Child being then alive.  
IN the County of Warwick there were two Brethren, the one having Issue a Daughter, and seized of Lands in Fee, devised the government of Her, and his Lands, until she came to Sixteen Years, to his Brother, and died. The Uncle brought up his Niece very well both at her Book and Needle, and she was eight or nine Years old: Her Uncle for some offence correcting her, she was heard to say, Oh good Uncle kill me not; after which time she could not be heard of, tho' much enquiry made: Whereupon the Uncle being suspected of her Murder, and the rather because her next Heir was upon Examination. 8 Jac. Regis committed to Goal for suspicion of Murder, and admonished by the Justices of Assize to find out the Child, and so bailed him until the next Assizes: Against which time, (for that he could not find her) and fearing what would fall out against him, took another Child as like unto her both in Person and Years as he could find, and apparelled like the true Child, and brought her the next Assizes; but upon view and examination, she was found not to be the true Child, and upon these presumptions he was Indicted, found Guilty, had Judgement, and was Hanged. But the truth of the case was, The Child being beaten over night, the next morning when she should go to School, ran away into the next County, and being well Educated, was received and entertained of a Stranger; and when she was Sixteen Years old, at which time she should come to her Land, she came to demand it, and was directly proved to be the true Child. Herein is a double caveat; First, to Judges, that in case of Life they judge not too hastily upon bare presumption. Secondly, to the innocent Man, that he never seek to excuse himself by false or undue means, lest thereby offending God he overthrew himself as the Uncle did. 3 Inst. 232.   

A Non compos mentis shall not suffer Execution for Felony or Treason, etc.  
IF a Man commit Treason or Felony, and confesses the same, or be thereof convict, and after become De non sanae Memoriae, he shall not be called to answer: Or if after judgement he become De non sanae Memoriae, he shan't be executed, for it cant be an Example to others. 3. Inst. 4.   

In Felony the Will was anciently taken for the Deed.  
A YOUTH was arraigned, for that he would have stolen the Goods of his Master, and came to his Master's Bed where he lay asleep, and with a Knife attempted with all his force to have cut his Throat, and thinking he had indeed done it, he fled; whereupon the Master cried out, and his Neighbours apprehended the Youth, and all this Matter being found by special Verdict, in the end he was adjudged to be hanged. 3 Inst. 5. Quia voluntas reputabitur pro facto. But Note, For a bare compass or plotting the death of a Man, either by Word or Writing, he should not have died, but there must have been an overt deed tending to the execution of his compass, as in the case aforesaid. ibid.  
If one beat another grievously, and leave him for dead, and he recover; this is not Felony now.   

Words not Treason unless set down in Writing.  
SINCE the Stat. of 25 E. 3. divers latter Acts of Parliament have ordained, that compassing by bare Words or say should be High Treason, but all they are either repealed or expired. And it is commonly said, That bare Words may make an Heretic, but not a Traitor, without an overt Act. And the wisdom of the makers of Stat. 25 E. 3. would not make Words only to be Treason, seeing such variety amongst the Witnesses are about the same, as few of them agree together. But if the same be set down in Writing by the Delinquent himself, this is a sufficient overt act within this Stat. Note the Act says, per overt fait, per apertum factum, and not per apertum dictum. 3 Inst. 14.  
Cardinal Pool, altho' a Subject to H. VIII. and of the King's Blood, (being descended from George Duke of Clarence, Brother to King Edw. iv) yet in his Book of the Pope's Supremacy, written about 27 H. 8. incited Charles the Emperor, then preparing against the Turk, to bend his Force against his natural Sovereign Lord and Country; the Writing of which Book was a sufficient overt act within this Statute: and to move the Emperor the more, he made H. VIII. almost as ill as the Turk, in these Words, In Angliâ sparsum nunc est hoc semen, ut vix a Turcico internosci queat, idque authoritate unius coaluit. ibid.  
But Words without an overt deed are to be punished in another degree, as in High Misprision, ibid. which is imprisonment during life, forfeiture of all Goods, Debts, and Duties for ever, and the Profits of his Lands during his Life. 3 Inst. 36.   

Robbery.  
IF a Thief command one to deliver his Purse, who does accordingly, and then the Thief finding little in it delivers it back to him, this is Robbery.  
If the true Man's Purse be fastened to his Girdle, and the Thief cut the Girdle, whereby the Purse falls to the Ground, this is no taking to make it Robbery, for the Thief had never any Possession thereof; but if the Thief take up the Purse, tho' he let it fall again, (as in striving or, etc.) it is robbery, tho' he never take it up more, for he had it once, and the continuance of his possession is not required by Law.  
If the true Man seeking to escape, for the safeguard of his Money, cast it into a Bush, which the Thief perceiving, takes it, this is a taking in Law from the Person, because done at one time.  
So if the true Man had let fall his Hat, or thrown off his Coat, and the same lying in his presence, a Thief assault him, and take the Hat, etc. this is Robbery, for that which is taken in his presence, is in Law taken from his Person.  
If a Thief compel the true Man by fear to swear to fetch him a sum of Money, which he does accordingly, and the Thief receives it, it is Robbery; for the Oath and Fear continuing, made him bring the Money, which amounts to a Taking in Law.  
Note, Tho' it be under the value of Twelve Pence that is taken (as suppose One Penny, or Two Pence) it is Robbery; but somewhat must be taken, for the Assault only to Rob, without taking some Money or Goods, is no Felony, and such Opinions as seem to the contrary, were maimed by that, which then was anciently holden, Quod voluntas reputabatur pro facto.  
Nota, Taking a Man's Goods out of his Shop before his Face is Robbery, as if he had taken it from the Person; and it is nothing to the purpose tho' the Thief say, I have right to this, or, This is mine, if indeed he has no colour.  
Felonious taking of Goods to the value of 5 s. in the Day time, out of any Dwellinghouse, or outhouse, tho' no Person be within; oust of Clergy per Stat. 39 El. cap 15.  
See these several Cases in 3 Inst. 68, 69. and Hales Pl. Cor. tit. Robbery.   

Cut Purses, their Nature and Punishment.  
BOTH Cutpurse and Robber take from the Person, but the former takes it Clam & Secretè, without assault or putting in fear; and the Robber by violent Assault, and putting in fear.  
If one out a Purse with Money in it, above Twelve Pence, he shall be hanged, and the benefit of Clergy is taken from him. 3 Inst. 68  
Give me leave to acquaint you here with an odd accident that happened in Northamptonshire towards the end of the Reign of King James I. out of Wilson's History, pag. 279. One Harman, a rich Man, having some bad Tenants, and being informed that one of 'em which owed him Money, had furnished himself to go to a Fair, walked (as by accident) to meet him in the way thither; when he saw his Tenant, he asked him for the Rent; the Man (willing to dispose of his Money otherwise) denied he had any; yes, I know thou hast Money, said Harman, (calling him by his Name) I prithee let me have my Rent, and with much importunity the Man pulled out his Money, and gave all, or the most part of it to his Landlord. This coming to some pragmatical Knowledge, the poor Man was advised to indict his Landlord for Robbing him on the Highway, which he did, and Harman for his sordid carriage being ill beloved in the Country, was found Guilty, but reprieved by the Judges, and hearing the Lord Treasurer had a Secretary of his Name, applied himself to him, promising to give him all his Estate (having no Children) if his Lord would bring him out of the danger he was in, which by his power with the King he did, and the Secretary within a short time after, by the others death, enjoyed an ample Estate.   

Stews, and Brothel-Houses.  
KING Henry VIII. suppressed all the Stews or Brothel-Houses, which long had continued on the Bankside in Southwark, and those infamous Women were not buried in Christian Burial when they were dead, nor permitted to receive the rites of the Church whilst they lived. This was by Proclamation under the Great Seal, 30 Martii 37 H VIII.  
Before the Reign of H. VII. there were Eighteen of these Houses, and that King for a time forbade them: But afterwards Twelve only were permitted, and had Signs painted on their Walls; as The Cardinal's Hat, The Boar's Head, The Cross Keys, &c, Stow. and 3 Inst. 205.  
Many wicked and common Women had seated themselves in a Lane called Water-Lane, next to the House of the Friars Carmelites in Fleetstreet; this being known, King Edw. III. to the end these Friars might perform their Vows, one of which was, To live in perpetual Chastity, took order for removing of these Women. ibid.  
So odious and dangerous was this Vice, (the fairest end whereof is Beggary) that Men in making of Leases of their Houses did add an express Condition, That the Lessee, etc. should not suffer, harbour, or keep any Feme putiene within the said Houses. ibid. 206.  
Nota, Tho' Adultery and Fornication be punishable by the Ecclesiastical Law, yet the keeping of a Bawdy-House, being as it were a Common Nuisance, is punishable by indictment at the Common Law, by Fine and Imprisonment. ibid.   

Accessary.  
IF I. S. counsel or command one to kill a Man, and he kill another; or to burn one Man's House, and he burn another's; or to steal a Horse, and he steal a Cow; or to steal a black Horse, and he steal a white one; or to steal a Goldsmith's Plate from him, going to such a Fair, and he go to his Shop in Cheapside, and rob him there, and break open his House to do it; in these Cases the Counsellor shall not be Accessary, because this is another Felony. Plowd. 475.  
But if one command a Felony, and it be done in another Fashion, Time, or Place only than it was commanded, he may be Accessary to it.  
As if one bid another to rob I. D. on Shooters-Hill, and he does it on Gadshill; or to rob him one day, and he does it another day; or to do it himself, and he does it by another; or to kill him by Poison, and he does it by a Sword; in all these Cases he shall be an Accessary. ibid. See Stamf. 1. 45.  
If one counsel a Woman to murder the Child in her Body, and after the Child is born alive, and then she murders it in the absence of him that gave her the Counsel; in this case he is an Accessary. Dyer 186. Plowd. 475.  
One Saunders had Poison given him by another to poison his Wife; the Husband gave it to his Wife in a roasted Apple, who eat part of it, and gave the rest to her Daughter being an Infant; the Wife recovered, but the Child died; and it was held, That he that gave it for the Wife was not accessary to the murder of the Daughter: For the Consent must not be extended farther than it was given. Plowd. 474. Saunder's Case.  
Yet if I persuade or command one to go and beat another Man only, and he do beat him, and kill him; by this I am made Accessary not only to the Beating, but to the Murder, for I commanded the unlawful Act which caused his death. So it is Murder to kill one, tho' the Malice be against another; as if I strike at A. and kill B. because I had a malicious and felonious intent.   

Felony to cut out Tongues, Eyes, etc.  
BEFORE the Statute of 5. H. IV. cap. 5. which makes it Felony to cut out the Tongue, or put out the Eyes of any of the King's Subjects, of malice prepensed, the mischief was, that when one had been beaten, wounded or rob, the Misdoers, to the end the Party grieved might not be able to accuse them, cut out their Tongues, or put out their Eyes, pretending the same to be no Felony, which is therefore ordained and established to be so by this Act, which has so terrified offenders, that where before it was every days practice, now it is very rarely done. See 3 Inst. 62.  
It extends not to cutting off Ears, which is no Felony, as appears by the Stat. of 37 H. VIII. cap. 6.  
The offender had the benefit of his Clergy, but that is now taken away by Stat. 22 and 23 Car. II. cap. 11. which enacts that if any Person, on purpose and of malice forethought, and by lying in wait, shall unlawfully cut out, or disable the Tongue, put out an Eye, slit the Nose, cut off a Nose or Lip, or cut off, or disable any Limb or Member of any Subject of his Majesty, with intention in so doing to Maim or Disfigure him in any of these Manners, he is declared a Felon, without benefit of Clergy: But Note, by this Act it is provided, that he shall forfeit neither Lands, Goods, or Chattels.  
The cutting off a Man's Privy Members was Felony by the Common Law, for Bracton lib. 3. fol. 144. b. says, Quid dicitur si quis alterius virilia absciderit, & illum libidinis causa vel convitii castraverit? tenetur sive hoc volens fecerit vel invitus, & sequitur poena aliquando capitalis, aliquando perpetuum exilium cum omni bonorum ademptione.  
Agreeable to this is the Record in Bracton's time, viz. Henricus Hall & A. uxor ejus capti & detenti sunt in Prisonâ de Evilchester, eo quod rectati fuerunt quod ipsi absciderunt virilia Johannis Monachi, quem idem Henricus deprehendit cum praedictâ A. uxore ejus, etc. But Fleta says, lib. 1. cap. 38. Si quis Castratus fuerit, talis pro Mahemiato poterit adjudicari. And so was the Law holden in my Lord Coke's time, as he says, 3 Inst. 63. and 118.   

Where an Attaint lies, tho' every word of the Verdict be true.  
A MAN shall have an Attaint in some special Case where every Word of the Verdict is true: As if one hath had Common Appendent to his Land, time out of mind, and brings an Assize of the Common, and makes Title that he hath had Common time out of mind, etc. without speaking of the Appendancy, and it is found for him. The Defendant shall have an Attaint, for the Plaintiffs Title is for Common in Gross, and not Common Appendent; yet the words of the Verdict are true, that he hath had Common time out of mind, etc. but not in such manner as shall be taken by the Title. Fitzh. N. B. 107 A.  
So if one hath a Rent as Forester in Fee of such a Forest, time out of mind, and in Assize he makes Title that he hath had a Rent out of that Land time out of mind, etc. without saying As Forester in Fee, etc. and it is found for him, the other shall have an Attaint, tho' the Words of the Verdict be true, for he hath not had such Rent by prescription as shall be intended and taken by the Title he has made. ibid.   

Where the taking of a Second Lease shall be no present Surrender of a former.  
A LESSEE for 21 Years took a Lease of the same Lands for 40 Years, to begin immediately after the death of I. S. it was holden, that the same was not any present Surrender of the first Term, but if I. S. die within the term, than it is a Surrender, for it may be he will survive it. 4 Leon. 30.   

Surrender of Part.  
A LESSEE for years of Land accepts a new Lease by Indenture of part of the same Land, it is a Surrender only for this part, and not for all. Fish and Campion's Case. 2 Roll 498. the last Case.  
A Lessee for years grants all his Estate to the Lessor, excepting one day at the end of the Term, yet this is not any Surrender, for this day is a Reversion, and so shall hinder the Surrender as strongly as if it had been 20 Years; adjudged between Bacon and Waller. 2 Roll. 498.   

Where there may be a Certainty in an Uncertainty.  
THERE is a Maxim in Law, That no Distress can be taken for Services that are not put into Certainty, or may be reduced to it, because upon the Avowry, Damages cannot be recovered for what neither has nor can be reduced to any Certainty: Yet in some Cases there may be a Certainty in Uncertainty, as one may hold of his Lord to Shear all the Sheep depasturing within the Lord's Manor, which is certain enough, tho' he has sometime a greater number, and sometime a lesser there, yet this uncertainty being referred to the Manor which is Certain, the Lord may destrain for it. 1 Inst. 96. a.  
A Lease for 21 Years if I. S. live so long, is a good Lease for Years, yet is certain in uncertainty; for the Life of I. S. is uncertain. 1 Inst. 45. b.   

Condition Broken.  
IF A. be obliged to permit B. to have ingress into his House, he ought to have a common entrance at the usual door, and shall not be put to enter at a Hole, a backdoor, or a Chimney: And if they leave the common Door open, and make a Ditch, so that B. cannot enter without skipping; the condition is broken. So if I am obliged to suffer I. S. to have a way over my Land, and when I see him coming, I take him by the Sleeve, and say to him, Come not there, for if you do, I will pull you by the Ears, the Condition is broken. Latch. 47.  
Note, One made a Lease of a House with free liberty of ingress, etc. through part of the Lessor's House, and 'twas ruled, That in this Case the Lessee must keep good hours and the Lessor is not bound to leave the Doors open for his coming in at One or Two of the Clook at Night, but may shut up his Doors. Modern Rep. 27.   

Contract.  
THE Lady Kent Articled with Sir Edward Herbert that he should come to her when she sent for him, and stay with her as long as she would have him, to which he set his Hand: Then he Articled with her, that he should go away when he pleased, and stay away as long as he pleased, to which she set her Hand. This (says Selden) is the Epitome of all the Contracts in the World, betwixt Man and Man, betwixt Prince and Subject, they keep them as long as they like them, and no longer.   

Conditional Bargain.  
I. S. SENT a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him, receiving for them a certain Sum of Money; the Merchant sent the things by the Carrier without receiving the Money: The Court held the Buyer should not be charged for the Money, for it was a conditional Bargain, and the folly of the Merchant to trust the Carrier with the Wares. 4 Leon. 7. May's Case.   

An Estate for Life determinable at Will.  
IF the King grant an Office to one at Will, and grant him a Rent for the exercise thereof for the term of his Life; this is determinable upon the determination of the Office. 1 Inst. 42. a. finch's Law 8. 9   

Two Uses in Esse of the same Land at the same time.  
IF A. disseise one to the use of B. and A. bargains and sells the Land for Money to C. C. hath an Use, and here be two Uses of one Land, but of several Natures, the one, viz. upon the Bargain and Sale to be executed by the Statute 27 H. VIII. and the other not. 1 Inst. 271. b. 272. a.   

Where one shall be punished in Trespass for hurting a Man, that shall not be punished for killing a Man.  
FELONY must be done Animo Felonico, and therefore if a Lunatic kill a Man, 'tis no Felony, because he is sine Animo during his Lunacy: However, if a Lunatic hurt a Person, he shall be answerable in Trespass, which tends only to give damages according to hurt or loss, and therefore no Man shall be dispensed with for a Trespass; (for this is the nature of an Excuse, and not of a Justification, prout ei benè licuit) except it may be judged utterly without this Fault, as if one by force take my Hand, and strike you, etc. Hob. 134. Weaver and Ward.   

Cases of Excuse.  
ALL Laws admit certain Cases of just Excuse when they are offended in Letter, where the Offender is under necessity either of Compulsion or Inconvenience, or else where he is under an invincible Ignorance, or where the offence is by a mere Misfortune without Will or Purpose, or where there is a mere Impotency to that that is required: By Compulsion, as in the case of Lucretia with young Tarquin, of whom St. Austin says, Duo fuerunt, & unus commisit Adulterium; and thereupon makes the Dilemma, Si casta, quare trucidata? Sin minus, quare laudata? Necessity of avoiding greater Inconvenience, as where one kills a Thief, or a Burgler in defence of his Person or House; the binding and beating of a Person Lunatic; removing of a Person Leprous. In Ignorance, as in the case of Jacob and Leah: Such also is the excuse of a Deed read amiss to one that cannot read, or reported to one that is blind: Lunacy in him that kills a Man. Of Impotency, as in the case of Mephibosheth accused by his Servant Ziba to David, and by himself excused by his Impotency. Vide Hob. 96.   

Uncertainty.  
A LEASE is made to a Man and a Woman for their Lives upon condition, that which of them two shall first Marry, that one shall have Fee; they enter Marry, neither of them shall have Fee, for the Uncertainty. 1 Inst. 218. a.   

Where one shall have Judgement to be hanged, after he is slain.  
IN an Appeal of Death the Defendant waged Battle, and was slain in the Field, yet Judgement was given that he should be hanged, which the Judges said was altogether necessary, for otherwise the Lord could not have a Writ of Escheat. 1 Inst. 390. b.   

One Attainted after his Death.  
THE Lord Coke observes that in Eire it has been seen, that a Man hath been attainted after his Death by Presentment. 1 Inst. 390. b.   

Execution before Judgement.  
UPON Issue joined, and Trial thereupon, a Verdict was found for the Plaintiff, and the Postea was delivered to the Clerk of the Judgements to enter the Judgement; but through the Clerk's neglect Execution was taken out before it was entered: Hereupon the Court was moved to supersede the Execution, because there was no Judgement to warrant it. Roll said, it being but a neglect of the Clerk, Judgement might well enough be entered, tho' the Execution were issued forth, and because the Trial between the Parties is right. Styles 229.   

Where a Grant to a Monk shall be good.  
AN English Man goes into France, and there becomes a Monk, yet is he capable of any Grant in England, because such Profession is not triable, and also because all Profession is taken away by Statute, and by our Religion holden as void, so adjudged in Ley's Case. p. tot. cur. 2 Roll. 43.  
Nor will such Profession abroad disable him to bring any Action here, because it wants Trial, so that of foreign Profession the Common Law takes no knowledge. 1 Inst. 132. b.   

The Freehold discontinued, and not the Reversion.  
HUSBAND and Wife Lease the Lands of the Wife by Deed for Life, reserving a Rent; the Husband dies: This was a discontinuance at Common Law for Life, and yet the Reversion was not discontinued, but remained in the Wife: Otherwise if the Husband had made the Lease alone. 1 Inst. 333. a.   

Reversion Revested, yet the Discontinuance remains.  
FEME Tenant for Life, the Baron makes a Feoffment, and the Lessor enters for the Forfeiture; here is the Reversion revested, and yet the Discontinuance remains at the Common Law, (for the Wife was put to her cui in vita, and could not enter after her Husband's Death. 1 Inst. 335. a.   

Where the Defendant may pray and have Judgement against himself.  
IN Assumpsit to pay several Sums at several days, if the Action be brought for default of payment at the first day, before any other day of payment is incurred, and the Defendant plead Non Assumpsit, which is found against him, but the Plaintiff will not enter Judgement for fear of being barred to have a new Action upon the same promise, if default be in the other payments, yet may the Defendant enter Judgement according to the Verdict if he will. 2 Roll. 97. Shapeland and Curtis.  
Vide Dyer. 194. n. 34. and 2 Roll. 97. That if a Verdict be found for the Defendant, and he will not pray Judgement, yet Judgement shall be given for him at the prayer of the Plaintiffs, because than he may have his Attaint against the Jury.   

Where the Plaintiff shall have Judgement, tho' the Issue be found against him.  
IN Replevin, the Defendant avowed for a Rent of 20 l. supposing that I. S. was seized in Fee of the place where, etc. and in 28th of Eliz. granted a Rent of 20 l. per annum, and for the Rend arrear an. 12 Jac. he avows, etc. it was found specially upon issue, Non concessit, that T. S. was seized in Fee, and let that Land an. 23 Eliz. to I. S. for 21 Years, and he so possessed granted that Rent, and fi, etc. upon this Verdict, tho' the Issue be found Quod concessit; and so for the Avowant, yet because it appears that the Estate out of which the Rent is granted, was determined a long time before the distress taken, so that the Defendant had not any title to avow; 'twas held, That Judgement should be for the Plaintiff, tho' the Issue was found against him. 2 Cro. 442. Harrison and Metcalf. See 2 Cro. 221. 435. 640. Cro. Eliz. 157.   

Agent and Patient.  
IT is a Rule in Law that Idem non. potest esse Agens & Patiens, and therefore a Man cannot present himself to a Benefice, make himself an Officer, nor Sue himself; and therefore when one having right to Land, has the Freehold cast upon him by a latter Title, he shall be said in of his ancient Title, because there is none against whom he may Sue but himself, and he cannot Sue himself. Littleton 147. b.  
So no Man can summon himself, and therefore if a Sheriff suffer a common recovery, it is Error, because he cannot summon himself. Dyer. 188. a. Owen 51.  
A Man cannot be both Judge and Party in a Suit, and therefore if a Judge of the Common Pleas be made Judge of the King's Bench, tho' it be but hâc vice, it determines his Patent for the Common Pleas; for if he should be Judge of both Benches together, he should control his own Judgement; for if the Common Pleas err, it shall be reform in the King's Bench. (See Cro. Car. 600. Littleton Chief Justice of the Common Pleas, made Lord Keeper, yet continued Chief Justice; so Sir Orlando Bridgman was both Lord Keeper, and Lord Chief Justice of the Common Pleas at the same time, for these places are not inconstent. 1 Siderf. 338, 365.)  
A Bishop cannot hold a Parsonage by Commendam within his own Diocese, because he cannot visit himself, or be Parson and Ordinary too. 1 Siderf. 305.  
If a Fine be levied to a Judge of the Common Pleas, he himself cannot take the Connsance, for he cannot be his own Judge. But if an Action be sued in C. B. against all the Judges there, there for necessity they shall be their own Judges. 2 Roll. 92, 93.  
But Note, in many cases the same Person may be Agent and Patient, where the Law cannot do otherwise; as a Feme Tenant in socage may endow herself de la pluis beale. Lit. Sect. 48. So an Executor may pay himself by Retainer. So where one may vouch himself. 1 Inst. 390. a. So where one limits a Remainder to himself.  
If one of the Chapter being sole seized enfeoff the Dean and Chapter, by that he himself shall take by his own Livery. Perk. Fol. 42. See Hob. 138, 139. A Mittimus directed to the Bishop of Durham, commanding him to send a Record to the Justices of the County Palatine to be tried there, is well enough, and may be executed by the Bishop, tho' he himself be one of the Justices. So one may be Judge and Officer diversis respectibus, as in a Redisseisin, the Sheriff is Judge and Officer. Cro. Car. 138. So where a Mayor keeps the Goal. Cro. Eliz. 76.   

Where one Impanelled on a Jury may challenge himself.  
A PEER of the Realm, or Lord of Parliament, Scil. Baron, Viscount, Earl, Marquis, and Duke, propter honoris respectum, are not to be sworn on Juries, and if neither Party will challenge him, he may challenge himself, for 'tis provided by Magna Charta, Quod nec super cum ibimus, nec super eum mittimus nisi per legal● judicium parium suorum, aut per legem terrae. Co. 6. 52, 53. But note, If a Peer is to be tried by his Peers, he cannot challenge any of 'em. 1 Inst. 156. b.   

Where an Infant shall not reverse his Fine.  
IF an Infant being a Feme covert, or other Infant, levy a Fine by grant, and render to her or him in tail, or for Life, and the Husband die, the Wife shall not have a Writ of Error, because she is Tenant of the Land, and she cannot have a Writ of error against herself, so that she is without remedy: So in the case of the other Infant, per Catlyn. Owen 33.   

Where one shall have a Formedon of Land that was never given.  
'TIS holden in 42 Edw. III. 53. cited in Mary Pottington's Case. Co. 10. 37. b. that in some case a Man shall have a Writ of Formedon of Land that was never given, as if Lands in tail are lost, and the Tenant in tail recovers other Land in value, the Issue in tail shall have a Formedon of the Lands recovered in value, and yet those Lands were not given.   

Livery and Seisin over a Wall.  
IF one that is seized in Fee of an Orchard makes a Feoffment of it to I. S. and goes into the Orchard, and cuts a Turf, or a Twigg, and delivers it in the name of Seisin, to the Feoffee over a Wall of the same Orchard, the Feoffee then being in other Land (not mentioned in the Feoffment) this is a void Livery. 2 Roll. 6. numb. 5.  
Note, If it appears that the Feoffor intends to make an actual Livery, it shall never amount to a Livery in Law. 2 Roll. 7. n. 40.   

Where a Man shall give and take by his own Livery.  
IF there be Dean and Chapter, and one of the Chapter is sole seized of Land in Fee in his own right, and thereof enfeoffs the Dean and Chapter by Deed, and makes Livery and Seisin according to the Deed; here the Feoffor gives and takes by the same Livery. Perk. Sect. 205. So of a Mayor and Commonalty, etc.  

William the Conqueror 's Charter to Norman Hunter.  
I WILLIAM the Third Year of my Reign  
Give to thee Norman Hunter,  
To Me that art both Leef and Dear,  
The Hop, and the Hopton,  
And all the Bounds up and down,  
Under the Earth to Hell,  
Above the Earth to Heaven,  
From Me and Mine,  
To Thee and Thine,  
As good and as fair,  
As ever they were:  
To witness that this is Sooth  
I by't the White Wax with my Touth;  
Before Jug, Maud, and Margery,  
And my youngest Son Henry,  
For a Bow, and a broad Arrow,  
When I come to hunt upon Yarrow.  
Vide Speed 424. b. 2 Roll. 181. Meriton's Anglorum Gesta in Vita. W. I.    

Whether one can take, and lose a Fee by the same Livery.  
TENANT in Tail makes a Lease for his own Life, the Remainder to the Donor in Fee; this gift of the Fee is void, because the Donor had it before: But if Tenant in Taile make a Lease pur altar vie, the Remainder to the Donor, this vests a new Fee in him, because that by the discontinuance he devested the ancient Fee out of him, and gave him a new Fee-Simple, by Marvine: But Knightly denied this to be Law, and that there should not be a new Fee-Simple in the Donor, because than he should take a Fee and lose a Fee by the same Livery at an instant, which cannot be, ideo quaere Dyer. 8. a. 9 a.   

Slander.  
A. THE Attorney of B. brought an Action against C. for saying to B. Your Attorney is a bribing Knave, and hath taken Twenty Pound of you to cousin me: Judge Warburton held the Words not Actionable, for an Attorney cannot take a Bribe of his own Client: But Hobart said he might when the reward exceeds measure, and the end against Justice, as to raze a Record, etc. and Hob. says, after he had spoken, Justice Warburton began to stagger in his opinion, and so the Plaintiff had Judgement. Hob. 8, 9 and 1 Roll. 53.   

Infant.  
AN Infant brought an Action of Trespass by her Guardian; the Defendant pleads that the Plaintiff was above Sixteen Years old, and agreed for 6 d. in Hand paid, that the Defendant have licence to take two Ounces of her Hair, to which the Plaintiff demurred, and adjudged for her; for an Infant cannot licence, tho' she may agree with the Barber to be trimmed. 3 Keb. 369. Scroggam against Stewardson.   

Trespass for shaking a Sword at him.  
A WOMAN shook a Sword in a Cutler's Shop against the Plaintiff, being on the other side of the Street, and in Trespass of Assault and Battery, there was a Verdict of the Assault, and not guilty of the Battery: 'Twas prayed to give no more Costs than Damages, and so granted, which was a Noble. 3 Keb. 283. Smith and Newsam.   

Where a Man shall be forced to spend his Money against himself.  
I. S. PRAYED a Prohibition to the Ecclesiastical Court at Salisbury, because his Wife Sued him there to be separated propter saevitiam, and Sentence was given for him, and he enforced to pay all the Costs for his Wife; afterwards she appealed, and because he would not answer the Appeal against himself, and pay for the transmitting of the Record, he was excommunicated, and now prayed a Prohibition; it was thought by the Court a very hard case that he should be obliged to spend his Money against himself; but because it was alleged that the Course was so in the Spiritual Court, they would advise, etc. and proceed stayed in the mean time. Cro. Car. 16. Green's Case.   

One Indicted for taking away a young Woman, and Marrying her.  
ONE Brown was Indicted on Stat. 3 H. VII. cap. 2. for forcibly taking away and marrying the Daughter of one Summers, a City Orphan in the Custody of the Chamberlain: Note, The Child herself being about Fourteen Years old was held a good Witness to prove the Fact; and the evidence was, that she was worth 5000 l. that she was menaced by the Defendant in a Vizard, and carried away in a Coach to Westminster, and the next day, with her own consent, but caused by the precedent menace, she married him, but was not defiled, having been surprised that day; he was found guilty, and had judgement to die, and was accordingly executed. 3 Keb. 193. See the Lady Fullwood's Case. Cro. Car. 482, 484, 488, 492. and Halès, Pla. Cor. tit. Felonies by Stat. that the taking a Woman against her Will, and marrying her, is Felony by the said Statute: But such Maid, Widow, or Wife must have Lands, Tenements, or Goods, or be Heir Apparent; so that the Motive of taking away is Lucre, and the end Luxury, viz. Marriage or Defilement.   

Action against a Cook.  
TRIN. 8. H. IV. Rot. 57 Willielmus Milburn recuperat per Juratam per Billam suam in qua queritur versus Johannem Cutting, Cook, de eo quod ipse Johannes apud Westmonasterium vendebat dicto Willielmo unum Caponem pistum corruptibilem & recale factum, qui Capo assatus per quatuor dies in Hospicium Domini Regis, & iterum calefactus & pistus extitit, de quo postquam edit, vomitum horribilem fecit, ita quod infirmabatur per duas septimanas, recuperat inquam Viginti Solidos pro damnis: And Roll says he was informed, that it appears upon the Record at large, that the Judges increased the damages. 1 Roll. 89.   

Burglary.  
A. LEASES to B. a Shop, parcel of his dwelling House, to work in, where B. works in the day, but never lodges in it; this Shop is broke open in the night, and several Goods stolen out, yet not Burglary by the opinion of Tanfield, Chief Baron, and Justice Hutton, because by the severence thereof by Lease to him who had it as a Shop, and his not inhabiting therein, it was not any Mansionhouse, and so no Burglary, but ordinary Felony. Hutton 33. Fine. and Hales Pla. Cor. 83.  
A Chamber in an Inns of Court, where a Person usually lodges, is a Mansionhouse, within the Law; so is the Church; so is a Shop, (not severed by Lease) Dalton's Justice, cap. 151. Hales ubi sup.  
A Thief goes down a Chimney to rob, it is Burglary, tho' here was no actual breaking: (for one is not bound to stop up his Chimney) ibid.  
A Guest comes to a common Inn, and the Host appoints him his Chamber; and in the night the Host breaks into his Guest's Chamber to rob him; this is Burglary. Nota, Dalton cap. 151.   

Challenges and Duels.  
IT is against the Law of Nature and of Nations (as well as against the Law of God) for a Man to be Judge in his own proper Cause, especially in Duello, where Fury, Wrath, Malice, and Revenge are the rulers of the Judgement: And there is nothing honourable (whatever some pretend) that is against the Laws of one's Country, and the Law of Nature and Nations. 3 Inst. 157.   

The Killer is in a worse Condition than the Killed.  
HE that slayeth is in worse case than he that is slain, for the Murderer loseth not only his Lands and Goods, but his Life also, and his Honour, which he so much respected; for by his Attainder his Blood shall be corrupted, and if he were Noble, or Genteel before, he thereby becomes Ignoble and Base, and he that is slain by Law loseth none of them; so as hereof it is truly said, Infoelix pugna, ubi majus periculum incumbit Victori, quam Victo. ibid.   

Bare Challenge punishable.  
IF any Subject by Word, Writing, or Message challenge another to Fight with him, this is an Offence before any Combat be performed, and punishable by Law, and it is contra pacem, coronam, & dignitatem, for Quando aliquid prohibetur, prohibetur & omne per quod devenitur ad illud ibid.  
Much more if they Fight, (tho' no Death ensue, nor Blood drawn,) which being an Affray, and a great breach of the King's Peace, is to be punished by Fine and Imprisonment, and to find Sureties for their Good Behaviour. ibid.   

What Duel allowed by Law.  
THERE is a Duellum allowed by Law depending a Suit for the Trial of Truth, (see 2 Inst. W. 1. c. 40.) which kind of Battle in case of Appeals, and Writ of Right is by public authority and course of Law, whereunto all the people by an implied consent, are Parties; and (as some hold) has its Warrant by the Word of God, by the single Battle between David and Goliath, which was strucken by public Authority. ibid.   

Where Kings of England have offered to try their Title by single Combat.  
KING Edward III. in the 16th. Year of his Reign, having War with the French King for his right to the Kingdom of France, out of the greatness of his Mind, for the love of his Subjects, the saving of Christian Blood, and a speedy Trial of the right, offered the single Combat with the French King, but He refused it.  
So after long and chargeable Wars between the Crowns of England and France, for the right of the Kingdom of France, it was an honourable offer which King R. II. made to Charles the French King for saving of guiltless Blood, and to put an end to that bloody and lingering War; 1. Either a single Combat between the two Kings. 2. Or a Combat between the two Kings, and three of their Uncles on either side. 3. Or that a fit day and place might be assigned when under the universal conflict of both their Armies, an end might be put to the War. The Duke of Lancaster, according to his Commission, made these offers from the King of England to King Charles of France, but he was auditus, sed non exauditus; for King Charles liked none of these offers.  
And in Anno Domini 1196. Philip, King of France sent this Challenge to our Richard the First, That King Richard would choose him five for his part, and He, the King of France, would appoint five for his part, which might fight in Lists for trial of all matters in controversy between them, for the avoiding of shedding of more guiltless Blood. King Richard accepted the Offer, with condition that either King might be of the number; but this condition would not be granted. See 3 Inst. 159   

Justs and Tournaments.  
IF at a Just or Tournament, or at the Play with Sword and Buckler by the King's Command, one Man kills another, this is no Felony. It was enacted in the Reign of King H. II. that if in such case one was slain, it should be no Felony, for that in friendly manner they contended to try their strength, and to be able to do the King service in that kind upon occasion. 3 Inst. 56. Otherwise of fight at Barriers, or running at Tilt or Justs, without the King's Command, whereby a Man is slain; and although it were by the King's Command, yet it was holden Felony by the Justices, tempore, H. VIII. for it was against Law. Bro. Coron. 228, 229. Dalton, pag. 352. But it is holden otherwise now, Hob. Rep. 134. in Weaver and Ward's Case.   

Battle, Champion.  
AN Approver that kills the party accused in Battle, or a Champion that kills the other Champion in a Writ of Right; or the Plaintiff or Defendant in an Appeal that kills the other in Duello; in these cases the party killing shall forfeit nothing, for these Combats or Duels are such trials as the Law appoints in such cases. 3 Inst. 221.  
Whoever takes upon him to be a Champion for another, and becomes recreant, i. e. a crying Coward, or Craven, he shall lose liberam legem for his perjury, that is, become infamous, and of no credit, never to be a Witness or Juror. ibid. You may read the form hereof, and the Oath he takes, 2 Inst. W. 1. cap 40. and Glanvil, lib. 2. cap. 3.  
So if the Appellant join Battle, and cry Craven, he shall also lose liberam legem; but if the Appellee cry Craven, he shall be hanged: But if they Combat until Night come, and Stars appear, the Defendant in the Appeal goeth quit, and the Plaintiff in that case loses not liberam legem. 3 Inst. ubi surpra.  
In a Writ of Right, if the Tenant wage Battle by his Champion, and the Champion after become blind by infirmiry, and not ex stultitiâ, he shall he discharged of the Battle. 3 Inst. 158. So of an Appellee. If the Appellant after Battle waged become blind upon any occasion, the Appellee in favorem vitae shall go quit. So where the Trial becomes otherwise impossible by the act of God, or default of the Appellant. 3 Inst. 159.   

Provocation to a Challenge.  
IN the Lord Hobart's Book, Fol. 120. is this Case.  
The Lord Darcy, and Gervase Markham were hunting together, and Markham and one Beckwith (a Servant of my Lords) fell together by the Ears in the Field, and Beckwith threw Markham down, and was upon him, cuffing of him; the Lord Darcy took his Servant off, and reproved him, and yet Markham chid my Lord, charging him with maintaining his Man; the Lord Darcy replied, That he had used him kindly, for if he had not rescued him from his Man, he had beaten him to Rags; Whereupon Markham (after this) wrote five or six Letters to my Lord, Subscribing his Name to 'em, but sent 'em not, but dispersed them unsealed in the Fields, to this effect, That whereas the Lord Darcy had said, that but for him his Man Beckwith had beat him to Rags, he lied, and as often as he should speak it he lied, and that he would maintain with his Life; adding, That he had dispersed those Letters that he might find them, or that somebody else might bring them to him; and concluded, That if he were desirous to speak with him, he might send his Boy who should be well used. My Lord Darcy sued Markham for this in the Star-Chamber, who was fined 500 l. for the Letter thus dispersed was in the nature of a Libel, slanderous and defamatory to my Lord, and tho' without any direct challenge to fight, yet there were plain provocations to it, and as it were to call and challenge my Lord to challenge him: And Hobart in his Sentence said, That the Law did not allow any Man to strike in private revenge of ill Words, because there is no proportion between Words and Blows; but he that is stricken may strike again. 'Tis true, there is a Judicial Combat allowed before the Constable if a Man be called Traitor, where for matter of satisfaction in point of Honour, (as it is called) it was left to the Lord Marshal as a distinct Court and Consideration from the Star-Chamber.  
The Lord Hob. said also in this Case, That such Insolent Persons (Challengers and Duelists) take upon them to frame a Law and Commonwealth to themselves, as if they had power to cast off the Yoke of Obedience to Peace and Justice, enacting among themselves as an undoubted position, That a Man wronged may with his Sword in his Hand, require satisfaction of any Man, being no Privy Counsellor, and with a mild Word to qualify the detestation of this kind of Murder, they have made it a familiar Phrase, That he was killed fairly, and he was killed in equal fight, which Arrogancy and Rebellion must be subdued. And Judges and Jurors must not give way to this impious distinction of fair and foul Killing, but must execute the Law with severity upon all Murderers; for the Law knows no such distinction: This he vowed publicly to do, taking it to be the only Remedy against this damnable Presumption. The King approved this Sentence, being pleased to say, The Lord Hobart did hit his own mind in it. (King James, we know, was a most Peaceable Prince.)  
Mr. Selden says, a Duel may still be granted in some Cases by the Law of England, and only there. That the Church allowed it anciently appears by this, In their public Liturgies there were Prayers appointed for the Duelists to say, the Judge used to bid them go to such a Church and Pray, etc. But whether is this lawful? If you grant any War lawful, he makes no doubt to evince it: War is lawful, because God is the only Judge between two, that is Supreme: Now if a difference happen between two Subjects, and it cannot be decided by human Testimony, (as I will give an instance presently) why may they not put it to God to judge between them by the permission of the Prince? nay, what if one should bring it down for Argument sake to the Swordmen; one gives me the Lie, 'tis a great disgrace to take it, the Law has made no Provision to give remedy for the Injury, (If you can suppose any thing an Injury for which the Law gives no remedy) why am not I in this case Supreme, and may therefore right myself?  
But now for the Instance I promised, it is in Fuller's Holy War, Page 44. Thus,  
Whilst Godfrey, Duke of Bovillon, (afterwards King of Jerusalem) lived in the Court of Henry IU. the Emperor, there happened an intricate Suit betwixt him and another Prince about Title of Land, and because Judges could not untie the Knot, it was concluded the two Princes should cut it asunder with their Swords in a Combat: Godfrey was very unwilling to fight, not that he was the worse Soldier, but the better Christian: He made the Demur not in his Courage, but in his Conscience, as conceiving any private Title for Land not ground enough for a Duel; yea, we may observe generally, that they who long most to fight Duels, are the first that Surfeit on them; Notwithstanding he yielded to the Tyranny of Custom, and after the fashion of the Country, (so it was used elsewhere besides in England) entered the Lists, when at the first encounter his Sword broke; but he struck his Adversary down with the Hilt, yet so that he saved his Life, and gained his own Inheritance.  
See the 3 Inst. fol. 157, 158, what Duels are lawful, and what not. And the 2 Inst. fol. 247.  
Note, Tho' there be no Proportion between Words and Blows, so as to excuse a Battery, yet if I am provoked by ill Language, and do thereupon draw my Sword, and in heat of Blood kill the Party; whether the Words shall not be accounted as a sudden Provocation to make it Manslaughter? to which purpose, vide the following Case in Jones, 432.  
David Williams, a Welshman, having a Leek in his Hat on St. David's day, being angry at one Redman a Porter in the Street for pointing at a Jack of Lent there hanged with a Leek, and saying to the said David Williams, Look on your Countryman, did suddenly take up a Hammer from a Stall, and violently threw it at Redman, but miss him, and hit one Marbury, who was sitting in his Shop, so as he died. This was agreed not to be within the Statute of Stabbing, but that he might have his Clergy.  
Vide 1 Siderf. 277. the Lord Morley's Case, where it was agreed by some of the Judges That Words without Blows is not any Provocation, because it is not answerable, but that to make a Provocation to fight, there must be Blows.  
'Twas likewise agreed by them, That if there be a Provocation in a House, whereupon they fight, before that their Reason had gained a Predominance over their Passion, and one is killed, this is but Manslaughter: But that if after the Provocation given, they say, that this is not a convenient Place, (and so have reason to Judge of the Conveniency) and appoint another Place, tho' they fight presently after, if one be killed, this is Murder, for the Circumstance shows their Temper.  
A. and B. fall out, A. saith he will not strike, but will give B. a Pot of Ale to touch him; B. strikes, A. kills him. Murder. Hales Pla. Cor. tit. Felonies.  
A. distorts his Mouth, and laughs at B. who thereupon kills him, Murder. ibid., and citys 42 El. Brame's Case.  
If there be a quarrel between A. and B. and A. Challenges B. who declines it, but at length upon importunity, and to vindicate his reputation, meets and fights, and kills A. Murder. 14. Jac. Taverner's Case.  
A. and B. are in Malice, A. challenges the Field, B. refuses to meet, but says he shall go to morrow to such a Town: A. meets him, and assaults him, B. kills him, Manslaughter and no Murder. Hales ubi sup.  
Two strive for the Wall, and one kills the other, Manslaughter. Two play at Foils, and one kills the other, Manslaughter. Sir John Chichester's Case, ibid.   

Testator nods one a Legacy.  
NO Words, or Language, or Signs almost, but may serve for a Bequest, provided that they be but sensible and intelligible, in regard of that vast extent and latitude of Words, which the Law allows Testators in making Wills, and bequeathing Legacies: Insomuch, that tho' the Testator should quite hold his Peace, and but nod thee a Legacy, whether he can speak, or not, or whether asked thereunto, or not, the Legacy is good. Understand not this of the Testator nodding between sleep and wake, between sense and no sense, but when by his nod he makes an intelligible sign of his mind and intention; the reason hereof is, because the Law more favours a Testator's Will than his Words. Orphan's Legacy, 444. 4.   

Legacy to a Child unborn.  
IF a Legacy be given to a Child in the Womb, and the birth prove monstrous, i. e. very contrary to the common form and shape of Mankind, as with a Crow's Beak instead of a Nose, or with the Face of an Ass instead of a better; in such an ill favoured case the Legacy is void: Otherwise if 'tis born only with some of the less principal Members imperfect or supernumerary, as with half a Thumb, or two Thumhs, or six Fingers on a Hand, or the like: But if the Birth (not accidentally) be imperfect as to its integrals, or defective as to its more noble and principal Parts and Members, as but with one Eye, or one Hand, although the Creature hath Life, the Legacy hath none, for albeit an amplification of the natural form shall not prejudice, yet a mutilation thereof will. Note, this extends not to Hermaphrodites, who are not excluded a single capacity, for that Sex which most prevails with them in nature, shall likewise prevail in Law as to the Legacy bequeathed. Orphan's Legacy, 475.   

Devise.  
IF a Testator devices a House to A. and after gives it by deed to B. and then buys it of B. again, and dies, and A. demands the House, he cannot recover it, unless he proves that the Testator by a new declaration of his Will, intended he should have it. So if a devised House be pulled down, and another built by the Devisor in the same place, the devise is void, unless it can be proved that the Devisor intended otherwise. Orphan's Legacy, 449. 15.   

A Minister sworn of the Jury.  
ONE Beecher, a Gentleman of the Middle-Temple, was returned in an Attaint, and before the Return of the Panel, he became a Minister of the Church, and at the day of the Return he appeared, and prayed to be discharged according to the Privilege of those of the Ministry. But the Court allowed not of his Prayer, because he was a Layman at the time of the Panel made, and so he was sworn 4 Leon. 190. Beecher's Case.   

Forgery of a Deed.  
ONE Howel Gwin was convicted of Forging a Deed by putting a Dead Man's Hand unto it, and condemned in 100 l. Fine, and to stand on the Pillory two hours before the Hall Door: Memorandum, he cut off a dead Man's Hand, and put a Pen, and a Seal into it, and so Signed, Sealed, and Delivered the Deed with the dead Hand, and swore, that he saw the Deed Sealed and Delivered. Styles Rep. 362, 363.   

Non Obstante.  
THE Clause of Non Obstante was first used by the King in his Grants, and other Writings in the time of Henry III. about the Year 1252. Matthew Paris calls it an odious and detestable Clause; and Roger de Thrusby, then Justiciar, fetching a deep Sigh at the fight hereof in the King's Grant, cried out of both the time and it, saying, It was a Stream derived from the Sulphureous Fountain of the Clergy. Speed 530.   

Praesentia Corporis tollit errorem Nominis.  
IF I give a Horse to I. D. being present, and say unto him, I. S. take this Horse; 'tis a good gift, notwithstanding I call him by a wrong Name: Otherwise if I deliver it to a Stranger to the use of I. S. where I meant I. D.  
So if I say to I. S. here I give you my Ring with the Ruby, and deliver it with my Hand, and the Ring bear a Diamond and no Ruby; this is a good gift, notwithstanding I name it amiss.   

Veritas nominis tollit errorem Demonstrationis.  
IF I grant Prata mea in Sale, continentia 10. Acras, and they contain 20 Acres; the whole 20 pass.  
If an obligation be made to I. S. filio & haeredi G. S where indeed he is a Bastard, yet this Bond is good.  
So if I grant Land Episcopo nunc Londinensi qui me erudivit in pueritia; 'tis good, tho' he never instructed me.  
The same Rule holds of Denomination of Times, and therefore if I oblige myself to do some personal Attendance upon A. on Innocent's day, being the day of his Birth, and A. were not born that day, yet shall I attend. Bacon's Elem. 87. 91.   

What Acts may be done in the Night.  
AN Arbitrament made and delivered in Writing the last day after Sun Set, is good enough, for Judgements and Arbitriments require long Advice. Finch's Law, 72. and Cro. Eliz. 42. and 676. An Arbitration is a judicial Act, which may be well done in the Night.  
Goods may be distrained in the Night for damage pheasant, otherwise they may be gone before he can take them: But you cannot destrain in the Night time for Rent behind. 1 Inst. 142. a.  
A Rent is payable at a day, he has all the day till Night to pay it; but if it is a great Sum, he must be ready to tell it before Sun set, for the other is not bound to tell it in the Night. ibid.  
Livery and Seisin in the Night by an Attorney, good. Cro. Eliz. 42. said there to be so adjudged. Yet an Atturnment (which is in lieu of Livery, 1 Inst. 49 a.) cannot be made after Sunset. Styles Pract. Reg. 47. yet sure 'tis less solemn than Livery, which must be upon the Land, or in view of it, whereas an Atturnment is but an Assent which may be given any where. ergo Quaere.   

Licence to sow Land, no Lease.  
IN Sir William Essex his Case, Hob. Rep. 35. The Lord Hobart says, he is clearly of Paston's opinion in 21 H. VI 37. That if one licence me to sow his Land, that is no Lease of the Land, and therefore if I sow the Land, the Owner shall reap it.   

Gift.  
A BORROWED 100 l. of F. and at the day brought it in a Bag, and cast it upon the Table before F. and F said to A. (being his Nephew) I will not have it, take it you, and carry it home again with you: Per Curiam, it is a good gift by paroll, being cast upon the Table, for than it was in the possession of F. and A. might well wage his Law: Otherwise if A. had only offered it to F. which had been only a chose in Action. not to be given without a Writing. Noy, 67. Flower's Case.   

Where one that is no Party to a Record, shall have Error to reverse it.  
A FEME covert was Sued as a Feme Sole, but by her Husband's Name; she appeared and pleaded, and Judgement was given against her: The Baron and Feme join in a Writ of Error. The Court said, a Stranger to the Record may not have a Writ of Error to reverse it, but that is, because he may have another remedy to avoid the prejudice: But in this case the Baron hath no other remedy, for his Wife is taken in Execution, and by this means he shall lose her Society, and so it was reversed. Styles Rep. 254. 280. Hayward and Williams.   

Where an Attaint may be brought by one that is no Party to the Issue.  
IF two commit a joint Trespass, there can be but one Satisfaction; and therefore if they be sued in one Action, tho' they may sever in Pleas and Issues, yet one Jury shall assess damages for all; and note, as to the damages, he that is no Party to the Issue, shall have an Attaint as well as his Fellows. Hob. 66. Cock and Jennor. 2 Cro. 349. accord that if the damages be too great, any of the Defendants may have an Attaint, tho' he be not the same Party against whom the Verdict was found: The reason hereof is given in Sir J. Heydon's Case. Co. 11.5. b. that although he be a Stranger to the Issue, yet because that by the Law he is privy in charge, he shall have an Attaint.   

Vessels go with the Wines as Accessories, in a Bequest.  
A BEQUEST of Wines doth convey the Vessels wherein they are, to the Legatary; not as if a Man in his Liquor should think (for no Man else would) the Vessels were part of the Wines (as Medals of Gold or Silver are part of such Metals) but because the Testator's intention in the Eye of the Law, seems to bequeath them as Accessories to the Principal; excepting such which by reason of the greatness of their Bulk, and wide Capacity cannot without much difficulty be removed out of the Cellars where they are. Orphan's Legacy, 474. 103.  
A Legacy taken away under a Condition, is understood as given under the contrary condition, as if a Testator saith [A. B. shall not have 100 l. if my Ship which I expect home should chance to perish in the Sea.] in this Case A. B. shall have 100 l. if that ship shall safe arrive. Orphan's Legacy, 464. 24.   

Christian Name.  
DECLARATION in Assumpsit quod cum quidam ...... Alison was indebted to the Plaintiff for Wares sold; the Defendant in consideration the Plaintiff would forbear, did promise to pay, if the said ...... Alison did not pay: After Verdict and Judgement for the Plaintiff, error was assigned that no Christian Name was alleged. Chief Justice Rainsford, and Twisden were of opinion, That the Plaintiff must aver the certainty of his Praenomen or Christian Name, and that Verdict helps it not, no more in Suit against the third Person than against the Party hiself to whom the Goods were sold; and it cannot be intended that quidam was the Christian Name, it being with a blank. The other Judges contra, because he may be a Jew, or an Anabaptist that hath no Christian Name, and the forbearance only is the ground of the Action. Indictment for stealing Goods the quodam ignoto, good, because the stealing is the substance: And tho' the Defendant might have demurred, yet after Verdict it is well enough. 3 Keb. 769. Bechino and Gumly. Adjornatur.   

Bond not to exercise his Trade.  
A MAN was bound in an Obligation to another, that he should not use his Art in such a Town for two Years: Hull swore by God if the obligee were present he should go to Prison till he had paid a Fine to the King, because the Bond is contra Legem terrae. 2 H. V fol. 5. b. See tit. Imprisonment. Fitz. 14.  
Justice Reeve said (March Rep. 193) he was confident you shall never find one Report against this opinion of Hull, such Bond being void, because it takes away a Man's livelihood, which is one reason against Monopolies, which is grounded upon the Law of God, for in Deuteronomy, Chap. 24. Ver. 6. it is said, No Man shall take the nether, or the upper Millstone to pledge, for he taketh a Man's Life to pledge. Which may also be the reason that the Utensils of a Man's profession cannot be destreined, for thereby the means of his Livelihood should be taken away. See Noy 180.  
It may not be impertinent to set before you the following differences under this Head: for some Books say, that a promise not to exercise one's Trade in such a Town is good, but that a Bond in such case is void, March Rep. 77. pl. 121, and 191. pl. 238. Barrow and Wood  
Broad and Jollyffe's Case, 2 Cro. 596. is That one may Upon Consideration agree; and promise, that he will not keep Shop in such a Vill or Street, for that Volenti non fit injuria. And in the Case of Prugnel and Goss, Allen's Rep. 67. Roll. Just. takes these differences. Where a Bond or Promise restrains the exercise of a Trade, altho' it be as to a particular place only; yet if it be upon no consideration, the Bond and Promise is void: But if there were a Consideration for the restraint, as if A. assign a Shop, or sell braided Wares to B. there in respect of the apparent prejudice which may accrue to B. if A. should continue the Trade; such a Bond or Promise is good, adjudged so in Froward's Case upon a Writ of Error. But note, although there be such a consideration, yet if the restraint be general throughout England, it is void. Vide 1 Roll. 16, 17. and Moor, 115. and 242.   

Cunning Practice.  
A MAN was Arrested in an Action of Debt, and presently made a Warrant to an Attorney to acknowledge a Judgement for him, upon which he was discharged; but afterwards he revoked the Warrant of Attorney, before the Judgement was confessed; the Court observing this cunning practice, commanded the Attorney to plead Non sum informatus, that Judgement might be entered, and said, they would defend him against the Party, if he brought an Action against him. Latch 8.   

Trick in the business.  
THE Court was moved, that there might be a Rule of Court for I. S. upon satisfaction made of a Judgement obtained by him, to acknowledge Satisfaction; but the Court denied it, and said there was some Trick in the business, for no doubt but the Party upon receipt of what is due to him, will acknowledge Satisfaction without a Rule to compel him. Styles 164.   

The River of Thames a Highway.  
MR. Attorney General prayed Judgement in an Information against Smith for laying Logs (which is a Nuisance) on the River Thames: The Defendant pleaded the general Pardon, but Nuisances on the Highway being excepted therein, and this being as much a Highway as the Road, and the Hundred answerable for Robbery thereon, Judgement was given for the King. 3 Keeble 759.   

Intention of the Parties.  
A. CONTRACTS with B. for 18 Barrels of Ale, paying a certain sum of Money, and A. would have kept the Barrels after the Ale was spent, but adjudged he should not, for the intent of the Parties never was that the Vendee should have them, but only the Ale, and the common usage is that the Vendor shall have the Barrels again. 27. H. VIII. 27. b. cited 1 Bulls, 175.  
So if one covenant with another, that if he come to his House, he will give him a Cup of Wine, and he comes; he shall not have the Cup also, because it was never the intent of the Party. ibid.   

Countermand of Arrest.  
A. DELIVERS a Writ to the Sheriff to arrest I S. and after forbids him, and desires the Writ again; the Sheriff refuses, and arrests I. S. Quaere; if I. S. may have faux Imprisonment against the Sheriff? It seems he may not: Whether shall A. have an Action upon the Case against the Sheriff? it seems he shall, for it may be he is prejudiced: Whether the Sheriff shall have an Action against A. for his Fee? Latch Rep. 19   

Slander by an Infant, and against an Infant.  
AN Action upon the case for Words lies against an Infant of Seventeen Years of Age, for Malitia supplet aetatem. Noy 129.  
An Infant brought an Action against one Child for these words, I charge thee with Felony, and had a Verdict and Judgement, tho' moved in arrest, etc. because not averred the Plaintiff was of an Age to commit Felony; for the Defendant must plead that, and shall not be averred by the plaintiff to avoid his own Action. Noy 124. Baily against Child.   

Grant of the next avoidance by Letter.  
I. S. BROUGHT a Quare impedit, declaring upon a grant of the next Avoidance; the Defendant demanded Oyer of the Deed, and the Plaintiff shown a Letter which was written to his Father by the Patron, wherein he tells the Father that he had given to his Son (the Plaintiff) the next avoidance: Whereupon the Defendant demurred, and adjudged for him, for the Letter was a mere banter, and the grant not good without Deed. Owen 47. and Cro. Eliz. 163, 164.  
A. granted the next Avoidance to B. and C. and was bound to B. in an obligation that he should enjoy the said Presentment without any disturbance or claim of the said A. C. released to A. his interest in the said Advowson; the Church became void, A. offered to join with B. in the presentation: It was holden the obligation was forfeited, notwithstanding that A. had a puisne Title after the Bond entered into. 4 Leon. 18. Bluet's Case.   

Legacy of Books.  
A TESTATOR saith [I give my Physic Books to my Son, if hereafter he shall study Physic; but if he make the Law his Profession, then let him have my Law Books.] the Son after studies Law and Physic both; he shall have the Testator's Books of both Professions. Orphan's Legacy, 472, 89.  
If the Testator saith [I bequeath or commit my Estate as well as my Soul to God.] whoever hath his Soul, his parish Church shall have his Estate. Orphan's Legacy, 471, 81.   

Bequest of Horses.  
IF a Man bequeath all his Horses, his Mares shall go too, but not è contra; nor by a bequest of Geldings. ibid. 467, 53, 56. and fol. 441, 12.   

Devise.  
A. DEVISES that B. shall be his Heir, and C. devises Lands to A. and his Heirs, B. shall have those Lands as Heir to A. for a Devise shall not be construed void, when it possibly by any probable construction can be made good: So note, a Man may be Heir ex vi Testamenti, before he is Heir ex vi Doni. 2 Siderf. 27.   

Heir by descent of an Estate that by possibility could not be in his Ancestor.  
LAND is given to A. and B. so long as they jointly together live, the Remainder to the right Heirs of him that dies first; A. dies, the Remainder vested not during the Life of A. (his Death must precede the Remainder) and yet his Heir shall have the Land by descent. 1 Inst. 378. b.  
Note, whensoever the Ancestor takes a Freehold, and after a limitation is made to his right Heirs, they shall not be Purchasers, tho' in Words it be limited by way of Remainder: But if a Lease for Years be made to A. Remainder to B. in tail, Remainder to the right Heirs of A. there the Remainder vests not in A. but the right Heirs shall take by Purchase, if A. die during the Estate tail. 1 Inst. 22. b. 376. b. 319. b. 2 Roll. 417.   

Where a Prisoner shall not be judged in Execution, tho' he yield himself unto it.  
A PRISONER having been in execution, was suffered by the Gaoler to go out, and then came into the Gaol again, and remained there till the time of another Sheriff, and then escaped; the new Sheriff is not answerable for it, by Hobart: For when he was let to go abroad voluntarily by the Gaoler, the Execution was utterly discharged, so as he could not be taken again legally, nor so judged in Execution, tho' he would yield himself unto it, or the Creditor so allow him: Neither can two Sheriffs be chargeable Simul & Semel for two escapes out of one and the same Execution at the same time. Hob. 202. Sheriff of Essex his Case.  
Note, it was agreed by the Court in the Case of alanson and Butler, 1 Siderf. 330. that if a Prisoner in Execution escape by negligence, he may be retaken either by the Sheriff, or the Plaintiff; but if he escape by the agreement of the Sheriff, he cannot retake him, but the Plaintiff may, for otherwise by the death or insufficiency of the Sheriff, he should be left without remedy.   

Execution Discharged.  
A. HAD a judgement and execution against B. who was thereupon taken, and in custody in the King's Bench Prison; A. consented afterwards that B▪ should come to him out of Prison to the Horse Shoe Tavern, which was out of the Rules, without a Keeper, or Rule of Court, thinking to make some agreement with him: B. accordingly went to the Tavern, but because they could not agree the Matter, A. took him up again upon the same Execution in the same Prison, whereupon B. brought an Audita Querela, and adjudged well, for the Execution was discharged by the Prisoner's going at large with the Plaintiff's consent, and so could not be retaken upon it! Styles 117. Walker and Alder's Case, and 147 Accord.   

Slander of a Midwife.  
A MIDWIFE brought an Action upon the Case for saying, She is an ignorant Woman, and hath small practice, and is very unfortunate in her way, but goeth about feeling Woman's Bellies, but there are few but are sick or die under her Hands. Judgement was given for the Plaintiff. 2 Keb. 489. Wharton and Clover.   

A Sheriff cannot upon private process rush into a House, which by Craft he gets to be opened.  
AN Under-Sheriff and others upon a private Process at the Suit of C. against D. who lay in the House of A. came and knocked at A's. Door, whereupon A's Wife came to the Door, and opened it a little to see who was there, upon which they presently with their Swords drawn, rushed in upon her whether she would or no, and bore her down, and broke open the Chamber Door where D. lay, and broke also B's House adjoining to it, to get Instruments to break doors withal, and hurt divers in the House: The Lord Chief Baron, and Lord Hobart held the first entry unlawful, for the opening of the Door was occasioned by 'em by craft, and then used to the violence intended. Hob. 62. See Co. 5. 92. b. and 2 Cro. 556.   

One Man kills another taking him in Bed with his Wife.  
ONE Maddy taking of Nabor in the Act of Adultery with his Wife in his House, killed him upon the spot, and the Court conceived it but Manslaughter, here being a sufficient provocation, and no precedent Malice; so he had his Clergy, and was gently burnt, etc. 2 Keb. 829.   

Outlawry must be reversed in Person.  
SIR W. Read being outlawed upon an Indictment for not repairing a Bridge, brought a Writ of Error, and moved to pursue it by Attorney, and put in Bail, and not to appear in Person: But all the Clerks of the Crown-Office affirmed that none could assign Error upon Indictment but in Person, and so also to put in Bail: The Court greatly pitied Sir William's Case, because he was Ninety years of Age, and very infirm, having kept his Chamber for a year and more by reason of his infirmity; and they conferred with the Attorney General how it might be done; but all at length resolved it could not be admitted, being against the course of the Court, and doubted if the King's Privy seal could help him: Sir William was thereupon brought from his House ten miles from London in a Horse Litter upon men's shoulders to the Bar, and came into the Court, and assigned his Error, and put in bail to prosecute, etc. The Error was, that he was named in the Indictment and Exigent Willielmus Read Miles, de Comit. Midd. without saying the such a place, alleging some place certain within the County, and therefore reversed. 2 Cro. 616.  
Note, some time before this Case, an Outlawed Person prayed to appear by Attorney, and upon Affidavit made of his sickness, the Court ex gratiâ speciali allowed him to appear by Attorney, but commanded the Clerk to enter it, Quod venit in propriâ personâ, the Law being clear that upon an Outlawry he must appear in Person. 2 Cro. 462. vid. Stiles 297.  
See 4 Leon. 22. Taylor's Case, this difference agreed, where matter in Fact is pleaded to avoid an outlawry, it ought to be in Person; but a matter of Record might be pleaded by Attorney.   

Scribere cum Dasho.  
ONE Coswell outlawed, moved to reverse it, because instead of proxim. there is used px. for its abbreviation, without any dash; then instead of Infra scr. the abbreviation of Infra scriptam, there is used Infra sir. for which exceptions 'twas quashed. Styles 18.   

Nonsense, how to be construed in giving a Legacy.  
AN Imperfect Speech in bequeathing a Legacy may be reduced to such as is equivalent to that which is perfect; if the Testator's mind and meaning may rationally be presumed: For example, the Testator saith, [Let 10 l. to A. B.] without the Words [Be given] Orphan's Legacy 464, 12.   

A. devises, then takes the Devisee to Husband, etc.  
ALICE Allen made her Will, and thereby devised certain Messages to James Amind and his Heirs, and afterwards she married the said James, and during the Coverture she often said he should never have the Messages by the said Will: She died without Issue, he surviving, and adjudged that her marriage revoked the Will, for it is against the nature of a Will to be irrevocable, since it takes not any effect till the death of the Devisor, and her own Countermand after marriage was of no force, because than she is wholly subject to the Will of her Husband; therefore the taking of him to Husband being her own proper Act, amounts to a Countermand in Law, otherwise it were very mischievous to Women, that their Wills should be in force whether they will or no; and 'tis not fit to leave it in the Wife's choice to Countermand, because the compulsion of the Husband is to be feared. Co. 4. 60. b. Force and Hemblin's Case.   

King Edgar's Law against Drinking.  
THE Danes first brought into this Realm Excessive Drinking, and King Edgar permitting many of them to dwell here, was at length constrained to make a Law against this excess, (which never comes alone) driving certain Nails into the sides of their Cups, as limits and bounds, which no Man upon great Pain should be so hardy as to transgress. 3 Inst. 200.  
If the excess of Drinking extend to the loathsome and odious vice of Drunkenness, it is punishable by Act of Parliament: See 4 Jac. cap. 5. 7 Jac. cap. 10. 21 Jac. cap. 7.  
The Ancient Britain's were free from this Crime. Ecce Britannorum mos est laudabilis iste, Ut bibat Arbitrio Pocula quisque suo.  
A Drunkard is voluntarius Daemon, and what hurt or ill soever he does, his Drunkenness aggravates it, Omne Crimen Ebrietas & incendit & detegit. 1 Inst. 247. a.   

Offences Capital and Civil.  
IN many cases the Law will not punish Capital offences in so high a degree, except the Malice of the Will appears, and this in favorem vitae; but in Civil trespasses and wrongs of a lower nature, the Law rather regards the damage of the Person injured, than the Malice of the wrongdoer: And therefore the Law makes a difference between killing one upon Malice prepensed, and upon present Heat; but if I give a Man slanderous Language, and thereby damnify high in his Name and Credit, it is not material whether I use them upon sudden Choler and Provocation, or of set Malice, for in an Action upon the Case, I shall render Damages alike.  
So if a Man be killed by Misadventure, as by an Arrow at Butts, it is pardoned of course; but if a Man be hurt or maimed only, an Action of Trespass lies, tho' it is done against the Parties Will, who shall be punished in the Law as deeply as if it had been done maliciously. Hob. 134. the Case of Weaver and Ward.  
So if Baron and Feme commit a Felony together, she is neither principal nor accessary, in respect of her obedience to her Husband's Will; but if they join in committing a Trespass upon Land or, etc. the Action may be brought against them both.  
(See Dalton 104. that if Husband and Wife do both a Felony, it is Felony in both, and both arraigned for it: But Hales in his Pla. Coron. says, Nota, that Books old and latter, and practice is otherwise. fol. 65.)  
If an Infant within years of Discretion, or a Madman kill another, he shall not be impeached for it; but if they put out a Man's Eye, or do him any corporal hurt, he shall be punished in Trespass. Hob. 134 and Bac. Elem. 32.   

One born Deaf and Dumb, kills another.  
IF one that is Dumb killeth a Man, it it is Felony; yet Quaere, how he shall be arraigned. Dalton cap. 147. pag. 351.  
A Man born Deaf and Dumb kills another, that is no Felony, for he can't know whether he did evil or no; neither can he have a felonious intent: Otherwise if not born so. ib. See Bro. Coron. 101. and 217. that a Man which can neither hear nor speak may commit Felony, and shall be imprisoned, etc.   

A Release of a right to one that hath neither Freehold in Deed, or in Law, yet good.  
THE Demandant may release to the Vouchee, and yet the Vouchee hath nothing in the Land; but the reason is, because when the Vouchee entereth into the Warranty, he becomes Tenant to the Demandant, and may render the Land to him in respect of the Privity. 1 Inst. 265. b.  
If the Tenant alien hanging the Praecipe, the Release of the Demandant to the Tenant to the Praecipe is good, and yet he hath nothing in the Land. ibid.  
If a Disseisor lets the Land for Life, the Disseisee may release all his right to the Disseisor in reversion, tho' he has nothing in the Freehold, because he hath an Estate in him, viz. the Reversion. Lit. Sect. 449.   

Courtesy of England.  
IF a Woman seized of Lands in Fee takes Husband, and by him is big with Child, and in her Travail dies, and the Child is ripped out of her Body alive, yet shall not the Husband be Tenant by the Courtesy, because the Child was not born during the Marriage, nor in the life time of the Wife; but in the mean time the Land descended, and in pleading he must allege that he had Issue during the Marriage. 1 Inst. 29. b. Co. 8. 35. a. b. in Pain's Case.   

A Secret of Law.  
LITTLETON says, In every Case where a Man takes a Wife seized of such an Estate of Tenements, etc. as his Issue by her may by possibility inherit, As Heir to the Wife, in such case after her Death he shall have 'em by the Courtesy of England, and otherwise not.  
In the Words [As Heir to the Wife] my Lord Coke has discovered a Secret of Law, for except the Wife be actually seized, the Heir shall not make himself Heir to the Wife, which is the reason that a Man shall not be Tenant by the Courtesy of a Seisin in Law. 1 Inst. 40. a. Co. 8. 34. in Paine's Case.  
Another reason is, because it lies always in his Power to reduce the Seisin in Law by his entry to an a actual Seisin, and so it shall be accounted his own laches; for it is otherwise in case of Rents and Advowsons', where if the Wife die before the Rent became due, or the Church void, yet the Husband shall hold by Courtesy, because he could by no Industry attain to any other Seisin; which is likewise the reason why a Woman shall be endowed of a Seisin in Law of Lands, because it lies not in her power to reduce it to an actual Seisin.   

Corporalis injuria non recipit aestimationem de futuro.  
THE Law in many Cases that concern Lands or Goods deprives a Man of his present remedy, and turns him over to a farther circuit of remedy, rather than to suffer an Inconvenience; but if it be a question of personal Pain, the Law will not compel him to sustain it, and expect remedy, because it holdeth no damage (that may be given) a sufficient recompense for a Corporal wrong.  
Therefore if one menace me in my Goods, and that he will burn certain Evidences of my Land, which he has in his Hand, if I will not make unto him a Bond; yet if I enter into Bond by this Terror, I cannot avoid it by Plea, because the Law holds it an Inconvenience to avoid a specialty by such matter of Averment, and therefore I am put to my Action against such Menacer; but if he restrain my Person, or threaten to beat me, or burn my House, which is a safety and protection to my Person, and upon such menace or duress I make a Deed, I shall avoid it by Plea.  
So if a Trespasser drive my Cattle over the ground of I. S. and I pursue to rescue them, yet am I a Trespasser to I. S. but if one assault my Person, and I fly over another's Ground, I am no Trespasser.  
So if the Sheriff make a false return that I am summoned, whereby I lose my Land, yet because of the inconvenience of drawing all things to incertainty and delay, if the Sheriff's return should not be credited, I am excluded of my Averment against it, and am put to my Action of Deceit against the Sheriff and Summoners. But if the Sheriff upon a Capias return a Cepi Corpus, & quod est lauguidus in prisona, there I may come in and falsify the return to save my Imprisonment. 5 Edw. IV. 80. 3 H. VI 3. Bac. Elem. 29, 30. 1. Roll 92.   

Felony, and Chancemedley.  
PLAYING at Hand-Sword, Bucklers, Foot Ball, Wrestling, and the like, whereby one of them receives hurt, and dies thereof within a Year and a Day: In these Cases some hold, that this is Felony of Death; others, that they shall have their Pardon of course, as for Misadventure, for that such their Play was by consent, and because there was no former Malice, but done only for disport, and trial of Manhood. Dalt. 352. See tit. Justs and Chance-medley in hoc Libro.   

Justification in case of Necessity.  
THE Ferryman of Gravesend took Forty seven Passengers into his Barge to go to London, amongst whom was one Mouse; the Barge being upon the Water, a great Tempest arose, insomuch that the Barge, and all the Passengers were in danger to be drowned, if a Hogshead of Wine, and other ponderous things were not cast out; among which things there was a Casket with 113 l. of Mouse's, which I. S. took and threw overboard; whereupon Mouse brought Trespass, etc. It was resolved per Curiam, that in case of necessity for saving the Passengers lives, it was lawful for I. S. being a Passenger, to cast the Plaintiff's Casket out of the Barge, with what was in it, [Quod quis obtutelam corporis sui fecerit, jure id fecisse videtur.] and 'twas directly proved that the Men had been drowned if the things had not been heaved out: But 'twas agreed also that the Owners in such Case shall have their Remedy upon the surcharge against the Ferryman; and if there is no surcharge but the danger comes by the Act of God, than every one must bear his own Loss. 12 Rep. 63. and 2 Roll. 567.  
One may justify the felling of a Tree in the Ground of another in Case of necessity. 6 E. 4. 8.  
See 22 Assize 5, 6. that a Man may justify the beating another, if he be in a Rage.  
So Estrays may be fettered, if they are fierce and unruly. Hut. Rep. 67. and Winch 67, 124.  
If a Man has a way over my Land for his Cattle to pass, and they in passing eat the Grass against his Will, this is justifiable. 2 Roll. 566, 567. Reeve and Downs.  
Note this for a Rule, That in all Trespasses there must be a voluntary Act, and also a damage; otherwise an Action of Trespass lies not.  
In Trespass for Ploughing his Land, the Defendant said, the Plaintiff's Land is adjoining to his and that when he was Ploughing his own Land, the Horses were unruly, and by violence carried the Plough into the Land of the Plaintiff, contra voluntatem suam, and held a good Justification; for if a Man be doing a lawful Act, which afterwards becomes illegal, against his Will, that is damnum sine injuria. 22 E. 4. 8.   

One cannot justify a Trespass upon another for fear.  
IN Trespass for breaking of a House and Close, the Defendant pleaded, that Duodecem homines ignoti modo querrino armati tantum minabantur ei, quod de vitae suae amissione dubitabat, and after requirabant & compulsabant the Defendant to go with 'em to the House, quodque ob timorem minarum, & per mandatum & compulsionem dictorum duodecem hominum, he did enter the said Close and House, and returned immediately through the said Close, which is the same Trespass, etc. Adj. no Plea upon demurrer, for one cannot justify a Trespass upon another for fear, and the Defendant has remedy against those that compelled him; the pleading too was naught, because he did not show that the way to the House was through the Close. Allen 35. Gilbert and Stone. vide the same Case Stiles 72. with this further reason, that the Person injured shall have no satisfaction (if such Plea be allowed) for he cannot have it of those that threatened. But see Styles 65. in Trespass pedibus ambulando; the Defendant pleads, he was carried upon the Land by force and violence of others, and was not there voluntarily, which is the same Trespass, etc. upon Demurrer. Roll. Justice said, it is the Trespass of the Party that carried the Defendant upon the Land, and not the Defendant's Trespass; as he that drives my  into another's Land is the Trespassor, and not I who am the owner of the Cattle.   

Presumption of Law.  
IN many Cases the Law will admit no proof against what it presumes: Therefore, If a Rent be behind for 20. Years, and the Lord make an Acquittance for the last that is due; all the rest are presumed to be paid, against which presumption the Law will admit no proof. Dyer. 271. a. 11 H. IV. 55.  
So if a Man be within the Four Seas, and his Wife hath a Child, the Law presumes it is the Child of the Husband, and will admit no proof to the contrary. 7 H. IV. 9 1 Inst. 373. a. unless the Husband be castrated. 1 Roll. 358.  
An innocent person is accused of Felony, and being afraid, flies for it; tho' he after judicially acquit himself thereof, yet if it be found that he fled for the same, he shall forfeit (notwithstanding his innocency) all his Goods and Chattels, Debts and Duties; for as to the forfeiture of these, the Law will allow no Proof against the presumption in Law, grounded upon his flight. 1 Inst. 373. a. b.  
So if the Uncle of the Issue releases with Warranty to the Discontinuee of Tenant in tail, and dies without Issue; this is a collateral Warranty to the Issue in tail, barring him without any Assets, or Estate descended from him that made the Warranty, the Law presuming that the Uncle would not unnaturally disinherit his Lawful Heir, being of his own Blood, of that right which himself never had, without leaving him greater Advancements. 1 Inst. 373. a.   

Forfeiture.  
TWO joint-tenants for Life, the one grants his Estate for the Life of his Companion; it was held a Forfeiture, for first, it is a severance of the Jointure, and then a Lease for another's Life. 4 Leon. 236.   

Remainder for the Life of Tenant for Life, good.  
IF a Remainder be limited to one for term of the Life of Tenant for Life, the Remainder is good, but for this reason only, because that by possibility the Tenant for Life may alien in Fee, and so forfeit his Estate, whereby the Remainder shall enter for the Forfeiture, and enjoy the Estate during the Life of the Tenant for Life, who committed such forfeiture. Co. 2. 50, 51.   

The King of Spain Outlawed in Westminster-Hall.  
THE King of Spain was Outlawed in Westminster-Hall, I being of Council against him, (says Selden) the Case was this; A Merchant had recovered Costs against him in a Suit, which because he could not get, we advised to have him Outlawed for not appearing, and so he was: As soon as Gondimer heard it, he presently sent the Money, by reason that if his Master had been Outlawed, he could not have the benefit of the Law, which would have been very prejudicial to him, there being then many Suits depending betwixt the King of Spain, and our English Merchants.  
Vide Stiles Pract. Reg. 382. that Mich. 22. Car. B. R. the King of Spain was Nonsuit in England; for if a foreign Prince will have benefit of the National Laws here, he must proceed and abide by the Rules and Orders of the Court wherein he prefers his Action.   

Where one shall be a Bastard tho' born in Marriage.  
IF the Husband be Castrated, so as it is apparent that he cannot by any possibility get a Child, and his Wife has Issue several years after, it shall be a Bastard, tho' engendered in Marriage, for that it is a plain case it cannot be legitimate: But Hobart contrà. 1 Roll. 358. Initio.  
If the Wife of an Infant of the Age of Nine Years has a Child, it is a Bastard. 29. Ass. 54. quaere. 1 Roll. 359.  
If a Man marry a Woman big with Child by another, who is delivered within three days after, the Child is a Bastard by the Law Spiritual, (but by our Law legitimate.) 18. E. 4. 30. 1 H. VI 3.  
If a Feme Covert has Issue by Adultery, yet if the Husband be able to get it, and is within the Four Seas, it is not a Bastard. 1 Roll. 358. Hill. 14. Jac. But see 40 E. 3. 16. that if a Woman covert continues in Avowtrie, and has Issue, it is a Bastard.   

Copy of Inscription, Evidence.  
MEMORANDUM at a Trial at the Bar between Baxter and Foster, concerning the Title of Land, a Copy of an Inscription upon a great Stone in London was admitted in evidence to prove a pedigree. Mich. 1656. Banco super. Sti. Pract. Reg. 177.   

Jury throw up Cross and Pile.  
THE Court set aside a Verdict in Northumberland on Affidavit, that the Jury being divided in opinion, threw Cross and Pile, and ordered them to appear the next Term to an Information; this being punishable by Wild, and as was said, broke Sir James Altham's Heart, who was one of the Jury in the Lord Fitzwater's Case. 3 Keble 805. Foy and Harder.   

Church-Book, and Shop-Book, where Evidence.  
A CHURCH- Book being entered, and made parcel of the Record, was given in Evidence, and good; but not otherwise to be given in Evidence. 1 Brownl. 207. 1 Cro. 411.  
A Tradesman's Shop Book may not be given in Evidence for Wares sold, or Work done, a Year after the selling, etc. 7 Jac. c. 12. unless they have a Bond or Bill for the Debt, or brought Action within the Year.   

Barrister expelled the House for not paying his Commons.  
MR. Boreman, a Barrister of one of the Temples, was expelled the House, and his Chamber seized for nonpayment of his Commons, whereupon he prayed to be restored, bringing his Writ of Restitution into Court, ready framed, which was directed to the Benchers of the said Society; but 'twas denied by the Court, because there is none in the Inns of Court to whom the Writ can be directed, because it is no Body Corporate, but only a voluntary Society, and submission to Government; and they were angry with him for it, that he had waved the ancient and usual way of Redress for any grievance in the Inns of Court, which is, by appealing to the Judges, and would have him do it now. 17 Car. in B. R. March r●p. 177. cited also in Styles 42.   

Masters in Chancery.  
MASTERS in Chancery in ancient time were Clerks of the Court, and called The first Form, and their Office was, and now is, to sign Original Writs, and of late time they have obtained a Commission to make them Judges: They are part of the Latin Court in Chancery, and were formerly Priests, and from thence they are called Masters; the Lord Chancellor had the Benefices under Twenty Marks, to the intent to prefer these Masters to 'em, and they could not marry till they were enabled by Stat. 14. H. VIII. cap. 8. They used anciently to frame the Writs, and are this day offended with the Cursitors for their Office. Latch. 39, and 133.   

Husband and Wife in Affection resolve to die together, she buys Poison, both take it, the Husband dies.  
A MAN and his Wife had lived a long time together, and the Man having at length spent his Substance, and living in great Necessity, said to his Wife, That he was now weary of his Life, and that he would kill himself; the Wife said, that then she would also die with him, whereupon he prayed her that she would go and buy some Ratsbane, and they would drink it together; which she accordingly did, and she put it into Drink, and they both drank of it; the Husband died, but the Woman took Salad Oil, which made her vomit, and she recovered: Quaere, if Murder in the Wife. Moor 754.   

Prerogative.  
PRAEROGATIVA is derived of praé i. e. ante, and rogare, to ask or demand beforehand, being denominated of the most excellent part; because, tho' an Act hath passed both Houses in Parliament, yet before it be a Law, the Royal Assent must be asked or demanded and obtained; this is the proper sense of the Word, but legally it extends to all Powers, Preeminences, and Privileges which the Law gives to the Crown. Fortescue 45. Stanf. Praer. 5. 10. 1 Inst. 90 b.  
According to this latter sense then, the King's Prerogative is not his Will, or (what Divines make it) a Power to do what he lists: The King's Prerogative, that is, The King's Laws: For Example, if you ask whether a Patron may present to a Living after six Months by Law? 'Tis answered, No▪ If you ask whether the King may, 'tis answered, he may by his Prerogative, i. e. by the Law that concerns him in that Case. Selden.   

Husband and Wife divorced causâ Frigiditatis, or impotency in the Husband, he marries again and has Issue, it is legitimate.  
IN Ejectment between Whebster and Bury, a sp;ecial Verdict was given upon Divorce between Bury and his Wife Causâ Frigiditatis, and that his Wife for Three Years after marriage, remansit Virgo intacta, propter perpetuam impotentiam generationis in Viro, & quod Vir fuit ineptua ad generandum: And in this special Verdict the whole examination of the Witnesses, upon which the Judge in the Spiritual Court gave Sentence, whereby the perpetual disability of Bury ad generandum was manifest, was read, by which it was pretended, that the Issue which he had by a Second Wife, was illegitimate, and this was the doubt of the Jury: But 'twas adjudged that his Issue by the Second Wife was lawful; for 'tis clear that by the Divorce causâ frigiditatis, the Marriage is dissolved à vinculo, and either might marry again, then admitting the Second marriage voidable, yet it is good until dissolved, and by consequence the Issue lawful (if no Divorce be in the life of the Parties) Et homo potest esse habilis & in habilis diversis temporibus. Co. 5. 98. Burie's Case.   

One refuses to be sworn after the usual manner.  
DOCTOR Owen, Vicechancellor of Oxford, being a Witness in a Cause for the Plaintiff, refused to be sworn according to the usual manner, by laying his Right Hand upon the Book, and kissing it after; but he caused the Book to be held open before him, and he held up his Right Hand, and so was sworn: Whereupon the Jury prayed the discretion of the Court, if they ought to esteem his testimony as strong as that of another Witness? Glyn. Ch. J. answered, that in his opinion the Dr. had taken as strong an Oath as any of the other Witnesses; but that for his own part, if himself were to be sworn, he would, according to the accustomed way, lay his Right hand upon the Book: The same Answer which he gave before to another Jury. 2 Siderf. 6.   

Jews sworn upon the old Testament only.  
ON Evidence to a Jury, the Witnesses produced were Jews, and sworn upon the Old Testament only: Per Cur. a good Oath by 5 Eliz. c. 9 to make Perjury: And within the general Words of S. Evangelia; so of the Common Prayer-Book that hath the Epistles and Gospels, Contra by Windham of a Psalm-Book only. 2 Keb. 314.   

Murder of a Child in the Womb.  
ONE beats a Woman great with Child, and after the Child is born alive, with Signs and Bruises in his Body of the said battery, and after dies thereof: Fenner and Popham held it to be Murder; for the difference is, where the Child is born Dead, and where Alive; in the first Case it is not Murder, because Non constat whether the Child were living at the time of the Battery, or not, or if the beating were the cause of its Death; but when it is born Alive, and the Wounds appear in his Body, and then dies, the Batteror shall be arraigned of Murder, for now it may be proved whether these Wounds were the cause of the Death, or not; and therefore if it be found, he shall be condemned. Goldsb. Rep. 176.  
If a Woman quick with Child take a Potion to kill it, and accordingly it is destroyed without being born alive; this is a great Misprision, but no Felony; but if born alive, and after dies of that Potion, it is Murder. Dalt. c. 93. Hales tit. Felonies.   

Nemo tenetur prodere seipsum.  
A MAN was sued for Incontinency in the Spiritual Court, and the Judges there would have him answer upon his Oath if he ever had Carnal Knowledge of such a Woman, upon which he prayed a Prohibition, and 'twas granted, for no one is obliged to betray himself in such cases of Defamation, but only in causes Testamentary and Matrimonial, where no discredit can be to the Party by his Oath. Cro. Eliz. 201. Moor 906. 4 Leon. 194. Cullier's Case.  
Dr. Hunt was indicted, that being Commissary to the Archdeacon of Norwich, he caused I. S. to be Summoned before him, to compel him to take an Oath concerning Incontinency, which touched himself: It being referred to the Chief Justices, and Chief Baron, they certified, That where the Knowledge of the matter did belong to the Court Christian, they may proceed according to the Civil Law: Note, the King's Bench was of opinion in this case, that the Oath cannot be ministered to the Party, but where the Offence is first presented by Two Men. Cro. Eliz. 262.  
If a Woman be Sued in the Eccl siastical Court upon a Contract of Marriage, and enters into Bond to the Court with condition not to Marry or live in Fornication with any one pendente lite, she cannot afterwards be examined there upon her Oath, whether she be a single Woman, for that tends to the Forfeiture of the Obligation. 2 Roll. 305. Clifford and Huntley.   

Bastardy.  
IF Husband and Wife continue Man and Wife their whole Lives, their Issue cannot be Bastarded by a Divorce after their Death, for the Divorce in the Spiritual Court est pro peccatis, which cannot be after they are Dead, and therefore such Divorce there is only to disinherit the Issue, which they cannot do, 39 E. 3. 31. b. 32. for by such means any one may be disinherited. 31 Ass. Pl. 10.   

Bastardy.  
IF the Wife of an Infant under Fourteen Years has Issue, it is a Bastard. Noy's Rep. 142. 1 Roll. 359. 1 H. VI 3. b.  
If a Wife elope, and live in Adultery with another, and has Issue, yet by our Law the Child is legitimate, agreed per Cur. in Edgerton's Case, 1 Roll. 358. but the Husband must be within the Four Seas, so as by Intendment he may come to her; otherwise such Issue is a Bastard. But vide 40 E. 16. 3 b. contra.  
If a Feme Covert goes into another County, and taketh Husband, and has Issue by him, the first Husband being within the Seas, the Issue is legitimate. 7 H. IV. 9 b.  
A Married Man takes another Woman to Wife, his Issue by her is Bastard by Common and Civil Law, for the second Marriage is void. Co. 7. 44.  
If there be an unlawful Marriage, as between Brother and Sister, and they have Issue, and one of 'em dies before any Divorce had between them, the Issue cannot now be Bastarded. (see Co. 7. 42. Kenn's Case) 1 Brownl. 42. and 2. Roll. 357.  
Upon a Motion to stay an Information brought against the Prosecutors of one Brown for a Bastard, Justice Twisden said, that the Stat. 18 Eliz. cap. 3. shall be taken by equity, and that although Bastards are intended Children Born, yet the Justices may take security of such as are Big, or of reputed Fathers during that time, lest they be gone before the Child is born, Curia accord' sed adjornatur. Lamb. I. P. 119. 3 Keb. 708.  
If a Man has Issue by a Woman, and after Marries her, by our Law the Child is a Bastard; yet note, such issue shall be called their Child in Law, for a Remainder limited to it by that name is good. Co. 6. 65.  
If a Man Marry his Cousin within the degrees, the Issue between them is not Bastard, until Divorce had, for the Marriage is not void; as it is where a Husband takes a second Wife, living the first, and has Issue by her, it is a Bastard, because the second Marriage is void.  
An Idiot à nativitate may consent to Marry, and his Issue shall be legitimate. Style and West. 1 Roll. 357. Fine.   

Lease confirmed before it is made, yet good.  
A BISHOP made a Lease for Years the second day of May, and the Dean and Chapter confirmed it the first of May; Catlyne and Southcote held it a good Lease after the Bishop's Death: Wray demanded, How a Lease could be confirmed before it was made; the others answered, That the Assent before is a good Confirmation after, Owen 33.  
Vide 2 Roll. 26. Number 30. that if a Parson grant an Annuity, and the Patron seals and delivers a Deed of Confirmation before the Grant, and after the Grant delivers the Deed again, this second Delivery is void, for altho' by the first Delivery it took not effect as a Confirmation, but was void in operation (quod nota) yet it was his Deed, for he could not plead Non est factum. See 8 H. VI 6. b. and 39 H. 6. 37. b. contra.   

Where the Lord shall have the Land against his own Confirmation.  
LORD and Tenant of a Carve of Land, the Tenant has Issue, and is attainted of Felony, and the King pardons him, and after the Lord confirms his Estate, and the Tenant dies, here the Lord shall have the Land against his own confirmation, for 'tis ruled in Beaumont's Case, Co. 9 141 b. that a confirmation cannot add a discendible quality to him that is disabled to take by descent. But vide Cro. Car. 478 by Jones and Croke, a Deed shall never be void when by any Intendment it may be allowed good, and to have any operation, and that altho' in Beaumont's Case the Heir in tail was barred by the fine of his Ancestor, yet they hold he was restored to the Estate tail by the Confirmation of him in the Reversion; for as the Fine was an Estoppel to the Heir to claim against the Fine, so the Indenture of Confirmation is an Estoppel to him in Reversion to say that the Heir shall not hold it in tail, and there it is an Estoppel against an Estoppel, which sets the matter at large. See Jones 394.   

Fine levied by a Woman born Deaf and Dumb.  
ONE Martha Eliot that was born Deaf and Dumb came before Chief Justice Bridgman to levy a Fine; she and her three Sisters had a House and Land, and an Uncle had maintained her, and was to buy the House and Land of them, and agreed to maintain this Woman, if she would pass, her Land for Security: As to her intelligence, the Sisters said, she knew and understood the meaning of all this; the Chief Justice demanded what sign she would make for passing away her Lands, and as 'twas interpreted to him, she put her Hands that way (spreading them out) where the Lands lay. This matter being communicated by the Chief Juslice to his Brethren, Judge Archer (with whom Tyrrel and Brown agreed) said, that the rule in Law is, that in Fines and Feoffments, etc. if there be a good intelligence, they may well do such Acts, they may be admitted to make contracts for their good: They are allowed upon examination to Marry, and to receive the Sacrament, they may make contracts for their Persons, and by the same reason for their Lands; and so his Lordship took the Fine. Cartor's Rep. 53, 54.  
Vide Perkins, Sect. 25. that one born Deaf and Dumb may make a gift, if he have Understanding, but that 'tis hard such a Person should have Understanding, for that perfect intelligence comes by hearing. And see 1 Inst. 8. a. that one born Deaf and Dumb may be Heir to another (tho' it was otherwise held in ancient time) and so if born Deaf, Dumb, and Blind, for in hoc casu vitio parcitur naturali; but note, it is there said that such persons cannot contract.   

Alien suffers a Common recovery.  
LAND was given to an Alien in tail, the Remainder to I. S. in Fee; the Alien suffered a Common Recovery, and died without Issue, all which being found by Office, the Court resolved the Recovery was good, and should bind the Remainder-Man. 4 Leon. 84.  
Note, it has been adjudged, where an Alien and I. S. were Joint-Purchasers, and the Alien died, that I. S. should not have the whole by Survivor, but that the King should have the Moiety upon Office found.   

The Wife of I. D. levies a Fine with I. S. as his Wife, and I. D.  prevent it.  
I. S. and the Wife of I. D. levied a Fine of her Lands, by the name of I. S. and Jane his Wife, I. D. came into Court, and shown this matter, and prayed to stay the Fine, but the Court would not stay it, for the Court shall not determine loyalty of Matrimony; and if it be true that she is not the Wife of I. S. it shall not hurt the rightful Husband. 2 Roll. 19 Keblethwaite and Wade.   

Wife prays the Peace against her Husband.  
ON a difference between the Lord Leigh and his Lady about Pin-Money, viz. the settlement of 200 l. per annum in case of Separation; she upon Affidavit of hard Usage, and that she went in fear of her Life, prayed security of the Peace against him, and 'twas granted: Note, Hale Chief Justice said here, the Saluâ Moderatâ castigatione in the Register is not meant of Beating, but only of Admonition and Confinement to the House in case of her Extravagance, Curia acc ' she being not as an Apprentice, etc. but they were reconciled afterwards. 3 Keb. 433.  
See 1 Keb. 637. Bradley's Case. The Court refused to bind him to the Peace at his Wife's Suit, unless her Life were in danger, because by the Law he has power of Castigation; and the Bishop of London had certified that he used to beat her, but that she used to provoke him.   

Fine Sur Grant & Lender, Executory.  
A MAN by Fine acknowledges all his right in certain Land to me, and I render it back again to him in Fee, where neither of us hath any thing in the Land, and after I purchase the Land, this Fine shall bind me, for it was executory upon me. 2 Roll. 20.   

Witness excused from swearing the whole Truth.  
IN a Cause between Spark and Sir Hugh Middleton, Mr. Aylet having been Counsel for the Defendant, desired he might not be sworn on the general Oath, as Witness for the Plaintiff, to give the whole Truth in evidence, which the Court granted after some dispute; and that he should only reveal such matters as he either knew before he was of Counsel, or that came to his knowledge after from others; and the particulars to which he was sworn were particularly proposed, viz. what he knew concerning a Will in question that P. G. made; and the Court only put the question, Whether he knew of his own Knowledge? 1 Keble 505.  
See Stiles 449. Waldron and Ward, That a Counsellor is not bound to make answer to matters which may disclose the secrets of his Client's cause, by Roll. Chief Justice; and so he was forborn to be examined.  
Vide March 83. pl. 136. that a Lawyer of Counsel may be examined upon Oath as a Witness to the matter of Agreement, not to the validity of an Assurance, or to the matter of Counsel.   

Extinguishment.  
IF a Man Lessee for Years take the Feme Lessor to Wife, his Term is drowned, for a Man cannot have a Term for Years in his own right, and a  in altar droit to consist together. 1 Inst. 338. b.  
Baron Lessee for Years, and the Inheritance descends to his Feme, Resolved per Cur. praeter Williams, That here the Term is not extinct. 2 Cro. 275. So note a difference where the Feme has the Reversion before Marriage, and where the Fee descends to her after Marriage. Jenkins cent. fo. 73. the first is the Act of the Husband, the other the Act of the Law, which shall not prejudice him.  
If a Man Lessor Mary the Feme Lessee, the term is not drowned, but he is possessed of it in her right during the Coverture: So if the Lessee make the Lessor his Executor, the term remains; for a Man may well have a  in his own right, and a Term in altar droit. Pl. Com. 418. 1 Inst. 338. b.  
Feme Lessee for Years takes Husband, he purchases the Fee, the term there is extinct by the Act of the Husband which destroys it, viz. the purchase, but where he had the Reversion before, her Term shall continue, for the Act of the Law shall not prejudice. 4 Leon. 212.  
An Executor hath a Term, and purchases the Fee, the Term is determined, by Dyer. 4 Leon. 212.   

Counsellor and Client.  
IF a Counsellor say to his Client, that such a Contract is Simony, and the Client makes answer, That Simony or not Simony he will do it, and thereupon the Counsellor maketh this Simonaical Contract, it is no offence in him, by Reeve Justice. March 83. pl. 136.   

Carrier rob, allowed a Witness to prove the Robbery.  
IT was said by Chief Justice Glyn, that a Carrier who is rob, may be examined as a Witness at a Trial thereupon, to prove the Robbery, and what he was rob of, otherwise the truth can't be known: But this is the only Case, he said, where one may be admitted to give his testimony as a Witness in a matter which concerns himself. Styles Pr. Reg. 571. Warren, and the Hundred of Broadwater.   

Examination of a Witness.  
IN examining a Witness, Counsel cannot question all the Life of the Witness, as whether he be a Whoremaster, etc. but if he hath done any notorious fact, which gives just exception against him, this may be taken, and he may be excepted against. March 83. pl. 136.   

What Sergeants Rings ought to weigh.  
SEVENTEEN Sergeants being made the Fourth of November, 21 Car. II. Serjeant Powis coming (a day or two after) to the King's Bench Bar, Chief Justice Keeling told him, he had somewhat to say to him, viz. that the Rings which he and the rest of his Brethren had given, weighed but 18 s. apiece, whereas Fortescue says in his Book de laudibus Legum Angliae, that the Rings given to the Chief Justices, and Chief Baron ought to weigh 20 s. a piece; and that he spoke this not expecting a Cecompence, but that it might not be drawn into a Precedent, and that the young Gentlemen there might take notice of it. See the Mod. Rep. 9   

Legatee allowed as a Witness to prove the Will.  
ONE that has but a small Legacy given him by a Will, may be allowed as a Witness to prove that Will, for the Law will not intent that any one will forswear himself for a small matter. Styles Pr. Reg. 568. but see Stiles Rep. 370. initio.   

A Man brings Debt against his own Executors.  
VIDE 1 Inst. 133. b. that in some Case a Man might have had an Action of Debt against his own Executors; as if A. had been bound to the Abbot of Dale in an Obligation, and afterward A. had been professed a Monk in the same Abbey, and after were made Abbot thereof, he should now have had an Action of Debt upon his own Bond against his own Executors.  
Note, when a Man entered into Religion, he might make his Will and his Executors, and they should have had an Action for a Debt due to him before his entry into Religion, or any other Action that Executors may have, as if he had been dead indeed, pari ratione they might be also sued, and in the Case supra, the Bond being made to an Abbot by one who after became dead in Law, by entering into Religion, whereby his Executors became chargeable, etc. when he himself was afterwards restored to legal Life by being made Abbot, the Debt being unsatisfied, himself was then the only Person capable of suing for it.   

Where a Feme Covert shall have both an Executor and Administrator.  
THE Wife of I. S. having Debts due to herself, and being also Executrix to I. D. makes (without her Husband's assent) I. N. her Executor, and dies: Here as touching the Goods, and Credits, or Things in Action, pertaining to her as Executrix of I. D. this Will stands good, and I. N. may prove it, contrary to her Husband's Will: But as to the Credits to herself in her own right pertaining, the Will is void, and thereof her Husband may take Administration: So Note, she shall die both Testate, and Intestate; with a Will, and without a Will; shall have both an Executor, and Administrator. Office of an Executor, 281.   

Pleasant Custom.  
BY a Custom which they have in the Town of Southampton, if a Bastard Child be found within the Town, and the Father of it cannot be discovered, he that comes next into the Town, after the Child was found, must keep the Child. Mich. 24. Car. B. R. Styles Practical Register 105. It may be (says Stiles) they of the Town did time out of mind agree amongst themselves that it should be so, and therefore it shan't be adjudged an unreasonable Custom, tho' it seems a strange one.   

Custom to hang for Stealing a Capon, not for Stealing an Ox.  
THERE are several Customs which are good ratione loci, that are not allowed throughout England; as there is a Custom in the Isle of Man, that a Man shall be hanged for stealing a Capon, yet he shall not be hanged for stealing an Ox. 12 H. VIII. 5. 1 Siderf, 267.   

Custom in Cheshire.  
THERE is a Custom in Cheshire, that if a Debtor come before the Chamberlain of Chester, and there takes his Oath that he is not able to pay the Debt, but that he will pay it as soon as he can, that he shall have a Protection. See 1 Roll. 566, 567.  
Note, Whereas by the Custom of London, an Action upon the Case lies for calling a Woman Whore; and so likewise in the Court of the Borough of Southwark, (where they allege a Custom specially for Whipping and Carting of Whores) it lieth likewise for a Lodger, for she comes within the Customs, which reach to all the Inhabitants.   

One loses at Play more than 100 l. to several Persons.  
DEBT upon Bond, the Defendant pleads the Stat. 16 Car. II. cap. 7. against Gaming that he lost at [Most at Three Throws] 90 l. to the Plaintiff, and at the same time 30 l. to A. at Cards, and 60 l. more to B. at Bet: The Plaintiff demurred, because it does not appear that these were Parties together, or in trust one for the other; and in Danver's Case the Act was held to extend only to the security for more than 100 l. much less shall it extend to different Gamesters. But the Court agreed, it was not material to whom the Party became indebted; for the Statute is, That you shall not lose more than 100 l. at one time or meeting upon Ticket; and Judgement was given for the Defendant, the Statute being to be extended against Play. 3 Keb. 671. Hudson and Malim.  
Danvers his Case was thus, (1 Siderf. 394.)  
Bond was given for 100 l. lost at Play, there being lost at the same time a Ring of 20 l. value, which was paid, and adjudged the Bond was not void within the Statute, the design whereof was to avoid Securities, but did not regard ready Money, as not presuming that Persons would carry their Estates in their Pockets: Therefore Keeling said, If one lose 1000 l. in ready Money and also give Bond for 100 l. it is not within the Statute.   

Two joint-tenants hanged in one Cart, the Survivor's Wife demands Dower.  
IN a Writ of Dower, the Title of the Feme to recover Dower was this: Father and Son were Joint-Tenants to them and the Heirs of the Son, they committed Felony, and were both hanged in one Cart, but because the Son (as it was deposed by Witnesses) did survive, as appeared by some Tokens, viz. his shaking his Legs; his Wife thereupon demanded Dower, and upon issue nunques seisie que Dower, it was found for her. Cro. Eliz. 503.  
For the better understanding of which Case, I shall give you the following Opinion: If there be two Joint-Tenants in Fee, and one of 'em is attainted of Felony, and then the other dies in the Life of him that was attainted, his part shall survive to him that was attainted, by Brampston, in the Case of Harris and Wardell, 2 Roll. 88 and he held that the Lord of whom the Lands are holden should not have this part by Attainder if he were afterwards pardoned: But Berkley conceived that he should forfeit by his Attainder all the Land which comes to him during his Attainder, and so the Lord should have this Moiety also.  
A. and B. Joint-Tenants, A. is attainted and hanged, yet there is no severance of the Jointure, but the Land shall survive to B. until the Lord enter for the forfeiture. Harris and Wardell's Case. 2 Roll. 88   

Plea in Bar of Dower.  
A WOMAN brought a Writ of Dower in Kent, and demanded the third part of certain Lands, whereof her Husband was seized; the Tenant pleaded in Bar, That the Lands were of the nature of Gavelkind, whereof by Custom she is to have a Moiety for her Dower, and adjudged a good Plea in Bar, quod nota, Savil's Rep. 91.   

Where a Right of  shall drown in a Chattel.  
IF a Disseisor make a Lease for Years, the Disseisee cannot release to him, because he hath no Estate of : And yet in some case a right of  shall drown in a Chattel, as if a Feme hath a right of Dower, she may release to the Guardian in Chivalry, and her right of  shall drown in the Chattel, because the Writ of Dower lies against him, and the Heir shall take advantage of it. 1 Inst. 266. a.   

Coparceners, but one Heir.  
A. MAKES a gift in Tail, reserving 2 s. Rent to himself during his Life, and if he die, his Heir within age, than a Rent of 20 s. to his Heirs for ever; A. dies, having Issue two Daughters, one of full age, the other within age; here the Donee shall hold by Fealty only, inasmuch as the one Daughter as well as the other is his Heir, and both of 'em make but one Heir, ergò his Heir is not within age, neither is his Heir in that Case of full Age: But if the reservation had been, and if he die, his Heir neither within age, nor of full age, there it had been good; note, if it gins not in his next heir, it shall never begin, because the precedency is not performed. 1 Inst. 164. a.   

Special Tail.  
LAND is given to I. S. and to the Heirs which he shall engender on the Body of an English Woman, he Marries a French Woman, and she dies, and then he Marries an English Woman; this is now a good Estate in special Tail, by Catiline. Owen's Rep. 32.   

One Tenant in Common takes all.  
IF there be two Tenants in Common of Timber, or other Goods, and one of them takes the Timber, and puts it into his several Land, the other cannot justify his entry into the Land to retake it, for inasmuch as in Law 'twas no tort for him to take it all to his own use, by reason of the Trust that is between them; the other cannot justify a Trespass in the Land to retake it, but must take it when he may without doing a Trespass. 2 Roll. 566. Masters and poley.   

One Ship takes another in the presence of a third.  
THE Civil Law is, That if two Ships meet at Sea together, altho' they went not forth as Consorts, yet if one of them in the presence of the other take a Ship with Goods in it, the other shall have a Moiety of the Ship and Goods taken, for her presence there at the time of the taking, was a Terror to the Ship which is taken, sine quo the other Ship could not so easily have taken her. 2 Leon. 182.   

Tenant in Common with himself.  
IF Lands be given to John Bishop of Norwich, and his Successors, and to John Overal, Doctor of Divinity, and his Heirs, being one and the same Person, he is Tenant in Common with himself, for he takes both in his natural and politic capacity, which in such case cannot stand in Jointure, therefore it is a Tenancy in common: But note, This Rule holds not in Chattels reals and personals; for if a Lease for Years be made, or a Ward granted to a Bishop and a Secular Man, or if Goods he granted to them, they are Joint-Tenants, because they take not in their politic capacity. 1 Inst. 190. a.  
See 2 Roll. 91. between the Dean and Chapter of St. Peter's of York and Power: One entered into an obligation to the Dean and Chapter of York, and to A. B. and C. D. of 2000 Marks; the Dean and Chapter are Tenants in Common with A. B. and C. D. for that the Body politic having a several capacity from the Body natural, cannot take in Jointure with it. Vide Ley's Rep. 82, acc ' that if an Obligation be made to I. S. and a Corporation, and I. S. die, the Obligation shall not survive, but the Corporation, and the Executors of I. S. must join in Suit.   

Where one may vouch himself.  
A MAN shall not regularly vouch himself, as Assignee of a Fee-simple, for the Law will not suffer things inutile and unprofitable; and yet if the Father be enfeoffed with warranty to him and his Heirs, and he enfeoffeth his Heir apparent in Fee, and dies, he (as it is said) shall vouch himself, and the Heir in Borough English, by reason that the Act in Law determined the Warranty between the Father and the Son. 1 Inst. 390. a.  
See Ploughed. Com. fol. 7. b. Manxel's Case, that if a Father being enfeoffed with warranty, enfeoffeth his Son and Heir with warranty, and dies; the Son in a Praecipe brought against him may vouch the Feoffor of his Father, for the Law will not suffer him to vouch himself, and when he comes in as Vouchee, then to deraign the first Warranty, for the circuit of Vourcher. Vide Finch's Law. 55.   

A. mixes his Money with B's at play, and B. keeps it all.  
A. AND B. being at Play, A. thrust his Money into B's heap, and mixed it, and B. kept it all, whereupon (they striving for the Money) A. brought Trespass of Assault and Battery, & quod cumulum pecuniae, containing Five Marks, cepit; and the whole Court was of opinion, in regard the Plaintiff's own Money cannot be known, and this his intermeddling is his own Act, and his own wrong, that by the Law he shall lose all; for if it were otherwise, a Man might be made to be a Trespasser against his Will, by the taking of his own Goods, to avoid which inconvenience, the Law will justify the Defendant's detaining all: Querens nihil capiat per Billam. 2 Cro. 366. Ward and Ayres. and 2 Roll. 566.  
So if I voluntarily intermingle my Corn with another Man's, he may take all. ibid. and 1 Siderf. 38. the end, accord ' by the Chief Justice.   

Action for playing with false Dice.  
A. ENTICED B. to play with him at Dice, at a Game called Passage, whereupon he played with him, and when it came to B's turn to throw, A. delivered in true and fair Dice, with which he played, but when it fell to his own turn, he threw with false Dice, such as he knew would run Five or Six upon every Die, and so B. lost 10 l. whereupon he brought an Acton upon the Case for this Deceit, and recovered. 1 Roll. 100 Hartwell and Oak's Case.  
Note, It was resolved in Martin Leeser's Case, That if common Players with false Dice, to cozen the People at Play, do enter into the House of another Man, and desiire him to play at Dice, and with their false Dice cozen him of his Money by Play, altho' this be not Felony, nor an Offence for which he shall lose Life or Member, yet he shall be set upon the Pillory where the Offence was committed. 2 Cro. 497, 498.  
Motion to quash an Indictment against two for being Common Players at Cards, and defrauding the Plaintiff of 40. s. not saying Vi & Armis; but, per Curiam, it's needless. 2. to say, Angl. a Trick at Cards, without a Latin Word, there being none for it, is good. 1 Keb. 652.   

Where the Owner may retake his Goods, tho' altered in Form.  
A WRONG-Doer cuts down Trees, and carries them away, and makes Timber or Board's of 'em, yet may the owner retake 'em in the Land of the Tort-feasor: For in all Cases where a thing is taken wrongfully, and altered in Form, yet if that which is the principal part of the substance remains, the notice of the thing is not lost; as if a Man should tortiously take away my Cloak, and make himself a Duoblet of it, yet I may retake it from him. So if one take from me a Piece of Cloth, and after sow Silver or Gold into it, yet I may take it from him, Quia major pars substantiae remanet. Moor. pla. 67.  
Note, If I. S. bequeathes a Pack of Wool to I. D. and after the Testator converts it into Cloth, and dies possessed of it, I. D. shall not have the Cloth. Doderidge English Lawyer, 132.   

Where Property shall not be altered by a Sale in Market Overt.  
'TIS the opinion of some, that the Goods of a Bankrupt, tho' he has sold them in Market Overt, are, notwithstanding that liable to the sale of Commissioners, by Twisden: And 'tis clear they are liable if sold out of Market Overt. 1 Siderf. 272. initio.  
See Dyer, fol. 99 placito. 68 A Man bought stolen Beasts out of Market, and gave Five Shillings to have election to refuse in the Market to be holden the next Day, and then in the Market he agreed to have the Beasts, and paid Toll: It was held in this Case that the property was not altered, for that the Agreement relates to the Contract out of the Market, quod nota.  
In Trover by Gibbs against Basil for a Gelding, the Case was; one Porter stole this Gelding from the Plaintiff, and sold him to the Defendant in open Market by the name of Lister, and 'twas entered so in the Toll Book that Lister sold him. This is no good sale to bar the Plaintiff, for the Stat. 2 and 3 Philip and Mary, cap. 7. provides, that no property of stolen Goods shall be altered that are sold, unless the Name and Surname of the Parties to the sale be entered in the Toll Book. Owen 27.   

Justification.  
IF a Man hath a heap of Corn by my heap of Corn, and he takes a handful out of my heap, I may take a handful out of his, and justify, for he shall not take advantage of his own wrong. 2 Roll. 566. n. 10.   

To justify the taking another's Goods without being a Trespasser.  
IF one Saddles my Horse, and then puts him into his own Ground, I may well come and take my Horse out, and keep the Saddle, and not be liable to Trespass for so doing; and because he puts his Saddle upon my Horse, I may justify keeping it, till he brings Action to recover it: So if one load my Cart with his Corn, or my Boat with his Coals, or the like, I may well take my Cart, and Boat away, and keep and detain the Goods without being a Trespasser, till he bring a Detinue to recover 'em from me. 1 Bulls. 96.   

Demur to a Demurrer.  
NOTE, One may demur to a Demurrer for the doubleness of it, for a Demurrer should be formal and certain to avoid Barbarism and inveigling the Court, but if he demurs not to it when he may, but joins in the Demurrer, he hath now slipped the advantage, and he cannot demur afterwards.  
A Demurrer is double, when he that demurs assigns therein for cause of it, one Error in Fact, and another in Law, which he ought not to do, for if either of the Causes be true, it is sufficient to overthrow the Plea, and it is at his liberty to insist upon that which is best for his own advantage, but not upon both, for this were to puzzle the Proceed. See Stiles Pract. Reg. 133.   

Accessary to an Accessary.  
IF one feloniously receive another that is an Accessary to a Felony, the Receiver is an Accessary. Stamf. lib. 1.   

One of ill fame demands the Rent without Authority, etc.  
LEASE for Years rendering Rend, with re entry for Nonpayment; at the day a Stranger came to demand the Rent, the Lessee asked him by what Authority, and because he was a cozening Fellow, and notoriously infamous, and would not show any Authority from the Lessor; the Lessee would not pay the Rent, and so the Lessor entered, and adjudged lawful, for that a command to receive Rend may be by Parole. Cro. Eliz. 22. Sir John Souch's Case.  
Sergeant Moor reports a Case (without Name) in the same Year with this, but another Term: A Lease for Years upon condition to re-enter for not-payment of the Rent; at the last day there came upon the Land a Man of an ill fame, who was Outlawed in Forty Actions, and conversed all the day with the Lessee, but said not a Word for what cause he came, and at the last instant of the day, he demanded the Rent; the Lessee asked him what authority he had to receive it, he answered he was sent thither by the Lessor, but shown not any authority to prove his message, nor was he known to be Receiver or Servant to the Lessor: Upon the whole matter, the Judges were of opinion, that if any would swear this to be true, the Lessor ought not to enter; whereupon one was immediately sworn, who deposed that this Person was a Man of ill fame, and the Notes of the Records of the Outlawries were shown, and so the Lessee was discharged, quod nota. Moor 141. numb. 282.   

Verba fortius accipiuntur contra proferentem.  
IF I grant a Rent of ten Pounds to Baron and Feme, and if the Baron die, that the Feme shall have three pounds' Rent, here because these Words rest ambiguous, whether I intent three Pounds by way of increase, or three Pounds by way of restraint and abatement of the former Rent of ten Pounds, it shall be taken strongliest against me that am the Grantor, that it is three pounds' addition to the Ten: But if I had let Land to Baron and Feme for three Lives, reserving ten Pounds per annum, and if the Baron die, reserving three Pound, this shall be taken contrary to the former Case, to abridge my Rent only to three Pound. 8 Ass. p. 10. See Bacon's Elem. 11.   

Deed good without Delivery.  
'TIS commonly said that every Deed ought to have Writing, Sealing, and Delivery, and when any thing passeth from one that hath no Understanding but by his hearing, as a Blind and unlettered Man, the Deed ought to have Reading too; yet Note, In some Case a Deed shall be good without any Delivery; as the Deed of a Corporation aggregate, for the affixing of their common Seal gives perfection to it without any Delivery; as if a Dean and Chapter put their Chapter Seal to a Deed, it is a perfect Deed without any more. Davies Rep. 44. b. Cro. Eliz. 167. 2 Roll. 23.  
Vide Savil 49. where Manwood is of the same opinion, viz. that a Confirmation by the Dean and Chapter to confirm Leases made by the Bishop, needs not any Delivery of the Deed, but that 'tis good if it be Sealed, tho' it remain continually in the Chapterhouse; but Baron Shute held, that such Deed is not of any effect without Delivery, and 'tis there left a Quaere.   

Slander, Daffidowndilly.  
ONE said in the North-Country that I. S. was a Daffidowndilly, and adjudged actionanable, because by this Word is meant there an Ambidexter, being a Flower of party-colour. Hetl. 123. Noy 98. the end. See Cro. Eliz. 914.  
Thus to say of one in Devonshire, and thereabouts, He is a Healer of Felons, will bear an Action, for it is taken there for a hider or concealer of Felons, and they usually say, The Healer is as bad as the Stealer. Yelv. 153. Noy. 133.  
So to say of one in some Countries, He hath strained a Mare, where it is taken for, He hath stolen a Mare, or Buggered a Mare. Yelv. 153. March pl. 3. 2. Bulls. 146. Cro. Eliz. 250. Moor 419. ca 574.  
So to say of a Man in Northumberland, Westmorland, etc. He is an out-putter, where 'tis meant a Horse-stealer. 2 Bulls. 146.  
See Hob. in several places, for such particular Words.   

Where one shall lose his Goods without any default in him.  
THERE be divers Cases (saith St. Jermyn) where one shall lose his Goods, and no default in him; as where Beasts stray away from a Man, and are taken up and proclaimed, and the Owner has not heard of 'em within the Year and the Day, tho' he made sufficient diligence to have heard of 'em, yet the Goods are forfeite●… and no default in him: So it is whe●… one Man kills another with the Sword 〈…〉 I. S. the Sword shall be forfeit as a De●…dand, and yet no default is in the owne●… Dr. and Stud lib. 2. cap. 51.  
Note, In case of Deodands, as to things fixed to the Freehold, the Law is taken to be clear otherwise now than it was when Briton and Horn wrote, who say, That if a Man fall from a Mill, House, or Tree, these shall be forfeited, for the Law will not suff that a Man shall lose his Inheritance by another's negligence, where there is no default in himself.  
Tenant for Life makes a Lease for Years, and after enters upon the Termor, and commits waste, and the Lessor recovers, the Lessee shall lose his Term.   

Tenant by Courtesy.  
A SEISIN in Law of Lands in Fee descends to a Feme Covert, and the Lands are in the County of York, but the Husband and Wife are dwelling in Essex, and the Wife dies within a Day after the descent, so that the Husband could not enter during the Coverture for the shortness of time, yet it is said he shall not be Tenant by the Courtesy, and yet there is no default in him according to common pretence; but they say he might have spoken (before the Ancestor's Death) to one dwelling near the place where the Lands lay, to enter in his Wife's right immediately after the Ancestor's Death. Perk. Sect. 470.  
See Perk. Sect. 469. that altho' the Day of payment of the Rent do incur in the Life of the Wife, and she die before any demand made of the Rent by the Husband, that yet there he shall be Tenant by the Courtesy.   

Exchange.  
EXCHANGE of Land in Ireland for Land in England is good. 10 E. 3. 42. Palmer's Rep 459.   

A Man Indicted for maiming himself.  
ONE Wright, a young, strong, and lusty Rogue, caused his Companion to strike off his left Hand, to make himself impotent, and have thereby the more colour to beg, or be relieved, without putting himself to any labour; both of 'em were indicted, fined, and ransomed for it: This was in my Lord Coke's Circuit, Anno 11. Jac. I. with the opinion of the other Judges. 1 Inst. 127. a. b.  
The life and members of every Subject are under the safeguard and protection of the King, to serve Him and their Country, when occasion shall be offered, which is the reason that a Lord could not maim his Villain, but the King should punish him for maiming his Subject by Fine, Ransom, and Imprisonment, etc. because hereby he hath dissabled him to do the King service. ibid.   

One Fined for disturbing of the Court.  
ONE Cox was Fined, ad Curiam visus Franc. Plagii & Baronis, because he put on his Hat in the Presence, and in Contempt of the Court, and of the Lord, and said, He cared not what He could do, and hindered the Business of the Court, Incivilitèr se gerens. 1 Keb. 451. and 465.   

Words Treason.  
ARTHUR Crohagan, an Irishman, was arraigned of Treason for speaking these Words at Lisbon, I will Kill the King [invendo Dominum Carolum Regem Angliae.] if I may come unto him; and about Two Years after, he came into England for the same purpose: He pleading Not Guilty, was tried by a Middlesex Jury, and 'twas directly proved by two Merchants, that he spoke those Words on Shipboard at Lisbon, in great heat of Speech, with one Captain Bask, and added [Because he is an Heretic] and because his Traitorous Intent, and the Imagination of his Heart is declared by these Words; it was held High Treason by the Common Law, and within the express Words of 25 Edw. III. and he being arrested by Warrant for this cause, most insolently put his Finger into his Mouth, and scornfully pulling it out said, I care not this for your King, etc. He was found guilty, and had Judgement accordingly. He confessed he was a Dominican Friar, and made Priest in Spain, and altho' this and his returning into England to seduce the Liege People be Treason by Stat. 23 Eliz. yet the King's Attorney said, he would not proceed against him for that, but upon 25 Edw. 3. of Treason. Cro, Car. 332, 333. See Cro. Car. 125. that no Words are Treasonable unless made so by some Statute. and 3 Inst. 14.   

Whether 'tis a Nuisance for a Rope-dancer to erect a Stage, etc.  
JACOB Hall the famous Rope-dancer had erected a Stage in Lincoln's Inn-Fields, but upon a Petition of the Inhabitants, there was an Inhibition from Whitehal: Now upon complaint to the Judges that he had erected one at Charing-Cross, he was sent for into Court, and the Chief Justice told him he understood it was a Nuisance to the Parish, and some of the Inhabitants being in Court, said, it occasioned Broils and Fightings, and drew so many Rogues to that Place, that they lost Things out of their Shops every Afternoon. Hales said, that in 8 Car. I. Noy prayed a Writ to prohibit a Bowling-Ally erected near St. Dunstan's Church, and had it. Modern Rep. 76. Post.   

Information for keeping a Cockpit.  
ONE Howel being Convicted of keeping a common Cockpit six Days, was fined 12 l. the Court conceiving it an unlawful Game, and took their Measures by 33 H. VIII. c. 9 of 40 s. a Day, tho' the Information were at Common Law. 3 Keb. 465. and 510.   

Forfeiture of a Copyhold.  
A. LORD of a Manor holding of his Court, and B. a Tenant being in the Court, there arising a Question whether the Court were then legally held, B. was asked if he appeared or not? he answered, If it be a legal Court I do appear, but if it is not a legal Court, I do not appear: Quaere, if this be an appearance, or such a refusal to appear, whereby the Copyholder shall forfeit his Copyhold, or not. Roll Chief Justice said, if there was a real Controversy whether the Court was well held or not, it would be hard to make it a Forfeiture, but if not, and that the Words were used only as a Shift to avoid his Suit and service, it is a Forfeiture for the Words are like Jack in a Box, and no body knows what to make of 'em; the other Three Judges inclined it was no forfeiture. Styles 241. Parker and Cook.   

Rope-dancing. Ante.  
THE Court being informed that Jacob Hall was building a Booth for dancing on the Ropes at C. sent for him and the Workmen by a Tipstaff, and because he would not enter into a Recognizance not to build on, they committed him, and then he ceased. 2 Keb. 846.   

Replevin of Goods not destreined.  
REPLEVIN is the bringing of the Writ De Replegiari facias by one whose Cattle or Goods are distreined, etc. and putting in Surety to the Sheriff, that upon delivery of the Distress, he will prosecute the Action against the Distreinor. Yet Note, In a special Case a Man may have a Replevin of Goods not destreined; as if there be Lord Mesne and Tenant, and the Mesne put in his Cattle in lieu of the Cattle of the Tenant paravaile, whom he is bound to acquit, he shall have a Replevin of those Cattle, yet they never were distreined. 1 Inst. 145. b.   

Replevin lies, notwithstanding a grant to keep the Distress against Gauges and Pledges.  
IF a Rent be granted with clause of Distress, and further, that the Grantee shall keep the Goods distreined against Gauges and Pledges, till the Rent be paid, yet shall the Sheriff replevy the Goods, for 'tis against the nature of such a Distress to be irreplevisable, and by such an intention the Currant of Replevins should be overthrown, to the hindrance of the Commonwealth, and so 'twas dissallowed by the whole Court, and awarded that the Defendant should gauge deliverance, or else go to Prison, which the Lord Coke says, in his opinion, is an excellent point of learning. 1 Inst. 145. b.   

Witches.  
THE Law against Witches does not prove there be any, but it punishes the Malice of those People that use such means to take away men's Lives. If one should profess that by turning his Hat thrice, and crying Buz, he could take away a Man's Life, (tho' in truth he could do no such thing) yet this were a just Law made, that whosoever should turn his Hat thrice, and cry Buz, with an intention to take away a Man's Life, shall be put to death. Selden.  
Note, To say of one Thou art a Witch, is not Actionable, because he may bewitch you with his fair Countenance, or fine Discourse. (2 Cro. 150. and 306. contra, because it brings him within danger of the Stat. 1 Jac. which makes every witchcraft Felony) but to say Thou art a Witch, and deservest to be hanged, will bear Action, because the last Words explain what manner of Witch he intends. So to say Thou art a Witch, and hast bewitched my Mother's Milk, Drink, Hogs, etc. So it seems of Children: But to say— and hast bewitched I. S. Quaere, because I. S. may be captivated with the amiableness of the Plaintiff's Person: So Note, the difference between saying he has bewitched a thing which has sense, and a thing which has not. 1 Siderfin 52. 53.   

Trespassor ab initio.  
A MAN comes into a Tavern, and will needs stay up all Night; the Vintner is not bound in such Case to watch with him, nor attend upon him all the Night; and therefore if he prays him to be gone, and he will not, but remains there all Night, he is a Trespassor ab initio. 11 H. IV. 75. b.  
Note, He that misuses an Authority which the Law gives him, as in that Case, (so if one distrein for Rent, and kill the Distress) shall be a Wrongdoer ab initio: Otherwise if he abuse an Authority that another gives him; as if I lend my Horse to I. S to ride to York, and he ride farther, yet the riding to York shall not be unlawful. Vid. Co. 8. 146. Perk. foe 39 40. 2 Roll. 561, etc. in Abridgement.  
Quaere, if a Distress be taken for a Rent-charge, and is misused, whether the Destrainor shall be a Trespassor ab initio, because the Authority to distrain comes from the Party.   

Justice Hutton's Case.  
MR. Justice Hutton having argued in the Exchequer Chamber in a Case adjourned thither upon a Scire facias by the King against Hampden for Ship-money, wherein he was of opinion, That as well for the Matter as Form upon divers exceptions to the pleading Judgement should be given against the King: After this, one Thomas Harrison, Bachelor of Divinity, came to the Court of Common Pleas, (Hutton and Crawley being then upon the Bench) and said, I accuse Mr. Justice Hutton of High Treason; for which he was committed to the Fleet by Justice Crawley, and after by the King's direction indicted in B. R. and Convicted, and Fined 5000 l. to the King: And the Judge preferring his Bill against him there, recovered 10000 l. damages. Hut. Rep. 131. Cro. Car. 503.   

Trades.  
IN the time of H. IU. when Sir William Gascoine was Lord Chief Justice, a certain Vintner was indicted for selling of Wine, and also for selling of Victuals to such as would resort to Dine and Sup at his House, and being thereof Convicted, he was Fined; whereupon he consulted with some of his Fraternity, and told 'em, If they would give five Pounds to Gascoine, all would be well; and so they collected 5 l. between 'em to present him, which Gascoine understanding, he caused the Vintner to be Indicted for this also, who was after Fined for it, Palmer 396. 397.  
Note, A Man could not by the Common Law use as many and what Trades he would before the Stat. 5. Eliz.  
Memorandum, John Walter Knight, Lord Chief Baron, a profound learned Man, and of great Integrity and Courage, being Lord Chief Baron by Patent, primo Caroli, quamdiù se benè gesserit, fell into the King's displeasure, and being commanded to forbear the exercising of his Judicial place in Court, never did exercise it from the beginning of Mich. Term quinto Caroli until he died, viz. the Eighteenth of November, 1630. But because he had that Office quam diù se benè gesserit, he would not leave his place, nor surrender his Patent without a scire facias to show what Cause there was to determine, or forfeit it, so that he continued Chief Baron until the Day of his Death. Cro. Car. 203.   

One Indicted for behaving himself immodestly and Irreverently at Church.  
A CERTIORARI was prayed to remove an Indictment at the Sessions at Hartford against I. S. quod non reverentèr & modestè se gessit during Divine Service, but the Court refused to grant it; for altho' it is punishable by Ecclesiastic censures, yet they conceived it a proper cause within the cognizance of the Justices of Peace. 1 Keb. 491.   

Slander.  
ACTION upon the Case for Words against a Feme (on a question asked her per quendam ignotum) Did I. S. the Plaintiff Ravish you? She answered Yes. Had he the use of your Body? She answered Yes. Whereupon he brought his Action against Baron and Feme. Foster conceived, that in regard the Person is found to have done it falsò & malitiosè, without legal authority, 'tis a Scandal; contrà by Twisden in one Emme's Case; one that had a Child at Nurse came to a Surgeon, with whom she was reported to be in cure for the Pox, who on enquiry told the Father she had the foul Disease, which was held no Scandal, not being spoken malitiosè, with intent to Scandal her. 1 Keble 542. Host and Oakeman.  
[Thou art a Thief, and hast stolen my Maiden Head] no Action lies. 1 Brownlow 2.   

Justa occasio Loquendi.  
IN Fox's Book of Martyrs, there is a story of one Greenwood, who lived in Suffolk, that he had perjured himself before the Bishop of Norwich, in testifying against a Martyr that was burnt in Queen Mary's time, and had therefore afterwards, by the just Judgement of God, his Bowels rotten in him, and so died: But it seems this story was utterly false of Greenwood, who after the Printing of the Book of Martyrs, was living in the same Parish: It happened after that one Prick, a Parson, was presented to the Living of that Parish where this Greenwood dwelled; and some time after in one of his Sermons, happened to inveigh much against the Sin of Perjury, to which his Text led him, and the better to deter the People from it, he told them this passage out of Fox, That one Greenwood, being a Perjured Person, and a great Persecutor, had great Plagues inflicted upon him, and was killed by the Hand of God; whereas in truth he never was so Plagued, and was himself present at that Sermon, and thereupon brought his Action upon the Case for calling him a Perjured Person; and the Defendant pleaded, Not Guilty: And this matter being disclosed upon the Evidence, Wray Chief Justice delivered the Law to the Jury, That this being delivered but as a Story, and not with any Malice or Intention to slander any, he was not guilty of the Words maliciously, and so was found Not Guilty.  
This Case is cited by Coke, 2 Cro. 91. and affirmed to be good Law by Popham, when one delivers aught after his occasion, as matter of Story, and not with intent to Slander any; See the Case, 1 Roll. 87.  
'Tis cited too by Sir Robert Atkins in his Treatise of the Jurisdiction and Privilege of Parliament, etc. fol. 11. If a Man (says he) be in discharge of his Function, and lawful Calling, and discoursing of a subject proper for it, in pursuit thereof tells a Story, which he takes up upon Trust, not knowing it to be false, and it prove at last to be utterly untrue, and an innocent Person is highly Slandered by it, yet he shall not be subject to an Action of Slander for it, the occasion of speaking shall clear him from the Malice, without which the Action will not lie.   

One calling himself by a wrong Name is arrested, the Arrest is naught.  
IN an Action of False Imprisonment by Coot against Lighworth, the Defendant justified, because he had a Warrant to Arrest I. D. and he demanded of Coot what his Name was? who answered, that his Name was I. D. and therefore he arrested him; to which the Plaintiff demurred, and had Judgement; for the Defendant at his peril, must take notice of the Party. Moor fol. 457. Agreeable hereunto, see Doctor and Stud, 311. That if a Sheriff upon a Replevin deliver other Beasts than were destrained, tho' by information of the Party that destrained, yet Trespass lies, for he shall be compelled by the Law to execute the King's Writ at his peril, according to the Tenor thereof, and to see that the Act which he doth be lawfully done.  
Note, Grome's Case in Palmer's Rep. 395. I. S. knowing that Execution would be made upon his Goods, procured I. D. by Covin to bring his Cart into his Yard, to the intent that the Bailie might take it in Execution, and so to have Trespass against him, the Bailiff did take the Cart, but afterwards having knowledge of the matter, sent the Cart back, and I. D. brought Trespass, but Lea Chief Justice held, that the Bailiff might plead the fraud in excuse.   

Bond in a Book, good.  
A MAN writes an Obligation in a Book, and in the same Leaf he puts his Seal to it, and then delivers the Book to the Obligee as his Deed; this is a good Obligation, for he delivered that which makes the Obligation and more, as his Deed; and altho' the Delivery be void for the Surplus, yet it's good for the residue. Cro. Eliz. 613. Fox and Wright's Case; cited also 2 Roll. 25.   

Action upon the Case for inserting his Name in Letters of Excommunication.  
ONE Harris was Excommunicated by Sentence, and the Letters of Excommunication delivered to the Parson of the Parish, to be read and published in the Church: But the Parson having malice against one Kenton, razed out the Name of Harris, and put in Kenton, and pronounced him Excommunicate; whereupon Kenton brought an Action upon the Case against the Parson, and adjudged maintainable, for altho' the Excommunication be Spiritual, and the denouncing thereof; yet the Rasure and Alteration is merely temporal, for which an Action well lies at the Common Law, and this was not only an injurious Vexation, but also Scandalous to Kenton. Cro. Eliz. 838. Kenton and Wallinger, and 1 Roll. 100   

Prince Henry committed to the King's-Bench.  
HENRY the Fifth, whilst he was Prince, did many things very incongruous to the greatness of his birth; for he and his wild Companions would often waylay, and rob his Father's, and his own Receivers; and when one of his Servants was arraigned at the King's Bench Bar for Felony; this Prince hearing of it, posted thither, and commanded his Fetters to be struck off, and he to be set at Liberty: When William Gascoigne Lord Chief Justice opposed him therein, and commanded him upon his Allegiance to cease from such Riot, and keep the King's Peace; the Prince in a Rage ascended the Bench, and gave the Judge a Blow on the Face, who sat still undaunted, and boldly thus spoke unto him: Sir, I pray remember yourself, this Seat which I here possess is not mine, but your Father's, to whom, and to his Laws, you own double Obedience; if his Highness and his Laws be thus violated by you who should show yourself obedient to both, who will obey you when you are a Sovereign, or Minister Execution to the Laws that you shall make? Wherefore for this default, in your Father's Name, I commit you Prisoner to the King's-Bench, until his Majesty's pleasure be farther known: With these Words, the Prince abashed, stood mute, laid by his Weapons, and with obeisance done, went to the Prison. Medulla. Hist. Angl. in vita H. V 3 Inst. 225.  
He proved afterwards one of our greatest Kings, being (as I find him Charactered) a Prince Godly in Heart, Sober in Speech, Sparing of Words, Resolute in Deeds, Provident in Counsel, Prudent in Judgement, Modest in Countenance, Magnanimous in Action, Constant in Undertaking, a great Alms giver, Devout to God-ward, a Renowned Soldier, Fortunate in Field, from whence he never returned without Victory.   

Queen.  
THE King cannot grant to another for Life the Office of making Saddles for the Queen, for the Queen is a Feme sole, and so may choose her own Officers. Dubitatur P. 6. Jac. C. B. between Auburcurmil and Cure. 2 Roll. 213. n. 12.   

The Violating of a Queen Dowager, no Treason.  
THE Stat. of 25 E. 3. says, Si homme violast la Compaigne le Roy, etc. which signifies the King's Wife or Consort, for it is no Treason to violate her unless it be done during the Marriage with the King, and therefore extends not to a Queen Dowager, who after the King's death is not sa Compaigne. 3 Inst. 8. 9   

Action upon the Case for throwing Wine upon his Velvet Doublet.  
ONE Carey brought an Action of Trespass, quare vi & armis, against Stevens for casting Wine upon his Velvet Doublet, and well brought, tho' he might have had an Action upon the Case. Noy 48.   

Where one may justify the detaining of a thing till Satisfaction made.  
IF a Tailor has a Suit to make for me, he is not compellable to deliver it, until he is paid for the making; yet he cannot sell it for default of payment, as an Innkeeper may an Horse where there is no special agreement; for the keeping of the Horse is a charge, because he eats, but the keeping of Apparel is no charge. Yeluerton 67.  
Note, If I contract with a Tailor to give him so much for making, etc. he cannot detain the  till he is satisfied, etc. (because he may sue me upon the Contract) per Williams. 2 Roll. 92. initio.  
See Popham's Rep. 127. Robinson and Walter, that an Innkeeper may detain the Horse of I. S. till he be satisfied for the Meat he has eaten, tho' he were brought to him by a Stranger.   

A Wife entices another Man to marry Her.  
COOPER brought an Action upon the Case against Witham and his Wife, for that the Wife maliciously intending to marry him, did often affirm that she was sole and unmarried, and importuned & strenuè requisivit the Plaintiff to Marry her, to which affirmation he giving Credit, married her, where in facto she was Wife to the Defendant, so that the Plaintiff was much troubled in mind, and put to great Charges, and much damnified in his Reputation: He had a Verdict but no Judgement, for by Twisden the Action lies not, because the Thing here done is Felony: No more than if a Servant be killed, the Master cannot have an Action per quod Servitium amisit, quod Curia concessit; besides the ground of this Action is the Communication and Contract of the Wife, which shall not bind the Husband. 1 Siderf. 375.   

Whether Trespass lies for Husband or Master for a Battery whereof his Wife or Servant dies?  
IF one beat my Servant, whereby I lose his Service for a long time, and he afterwards dies, I shall have an Action of Trespass, because it was a distinct Trespass to me, by William's Justice: But if one beat my Wife, whereby she languishes, etc. and after dies, I shall not have Trespass for this Battery, because the Trespass was not done to me, but to my Wife, so that she was to have joined in the Action, and I only for conformity. 2 Roll. 568. Huggin's Case.  
Note, that Case is reported by Yeluerton, 89. 90. and warrants not the diversity taken; for 'tis holden there by Three Judges (no mention of Justice Williams) that the Master shall not have an Action for such Battery and loss of Service; but that here as well as in the other Case, the Servant dying with the extremity of the Battery, it is now become an Offence to the Crown, being turned into Felony, which drowns the particular Offence and private wrong offered to the Master, and so his Action is gone: Vide 1 Siderf. 375. Acc '. and Styles 347. where Roll. himself being Chief Justice, citys the Case of Higgins to have been adjudged, That Trespass lies not for the Battery of a Wife whereof she died, because (says he) it is Felony; the reason given by the Three Judges why it lies not for the Master. See 1 Brownl. 205.   

Admiralty.  
A MERCHANT hath a Ship taken by a Spaniard, being Enemy, and sometime after an English Merchant with a Ship named Little Richard retakes it from the Spaniard, and the owner of the Ship sues for it in the Admiralty Court, but a Prohibition was granted, for that the Ship was gained by Battle of an Enemy, and neither the King, nor Admiral, nor the Parties to whom the Property was before, shall have it. 2 Brownl. 11. Weston's Case.   

Master and Servant.  
A SURGEON in consideration of a Sum of Money, assumed to cure the Servant of I. S. of a hurt which he had in his Leg, and afterwards applied unwholesome Medicines to it, on purpose to make the cure the greater, whereby I S. lost the Service of his Servant for a long time, wherefore he brought an Action upon the Case against the Surgeon, and recovered. 1 Roll. 98. Everard and Hopkins.  
If a Drawer in a Tavern sell Wine that is corrupt, an Action upon the Case lies for this against the Master, tho' he did not command his Servant to sell it to any Person in particular: And no Action lies against the Drawer, tho' he knew the Wine to be corrupt, because he sells it only as Servant to another. 1 Roll. 95.  
Vide Dr. and Stud. 285. that if one send his Servant to Market with a thing which he knows is defective, to be sold to a certain Person, and the Servant sells it to him, an Action lies against the Master: But if he send it to be sold generally to whom he can, no Action of Deceit lies against the Master. 1 Roll. 95. Accord '.  
If my Servant be cozened of my Money, I may have an Action upon the Case for the deceit against the Cozener. 1 Roll. 98. Paul Tracie's Case.  
So I may justify the beating of another in defence of my Servant, for he is in a manner my Chattel. 2 Roll. 546. the end. (The contrary admitted, Palmer 54.) See Owen 150.  
A Servant shall justify the Battery of another in defence of his Master. 2 Roll. 546. Quaere 14 H. VI 24. b.  
Note, Tho' in the Case of Felony, if the Principal die, or be pardoned before Attainder, the Proceed against the Accessary fail (Co. 4. 43. b.) yet in a Trespass, if one command his Man to beat you, and the Servant after he has beaten you, dies, yet your Action of Trespass stands good against the Master. 17 H. IV. 19 Bac. Elem. 32.  
I. S. suffered a Soldier to get a Child upon the Body of his Maid-Servant, and the Order of Sessions was, that I. S. should contribute to half the charge of keeping it. Curia. 'Tis not within the Stat. of 18 Eliz. and the Order was quashed.   

Possession, how to be Defended.  
IN Trespass of Assault and Battery, the Defendant pleaded De son Assault demesne; the Plaintiff replied, the Defendant would have forced his Horse from him, wherefore he did Molliter insultum facere upon the Defendant in defence of his Possession: to which the Defendant demurred. Morton Justice: Molliter insultum facere is a contradiction; suppose you had said, that Mollitèr you knocked him down? Twisden: you cannot justify the heating a Man in defence of your Possession, but you may say that you did molliter manus imponere, etc. Keeling, You ought to have replied, that you did Molliter manus imponere, quae est eadem transgressio. Curia: Quer' nile cap. per bill. Mod. Rep. 36. and 1 Siderf. 441. Jones and Tresilian.   

Slander of a Counsellor at Law.  
PETER Palmer of Lincoln's-Inn brought an Action upon the Case against Boyer, and declared that he was an Utter-Barrester of the Law, and got his living by practising the Law, and was Steward of divers Courts, and namely of one I. P. Esq and the Defendant praemissorum non ignarus, to the intent to prejudice the Plaintiff in his good Name and Practice, said of the Plaintiff these English Words, viz. Peter Palmer is a paltry Lawyer, and hath as much Law as a Jackanapes; 'twas moved in arrest that the Words would not maintain an Action; because not slanderous, for 'tis not said, He hath no more Law than hath a Jackanapes, that had been Actionable, for thereby he had abated the Opinion of his Learning; but it is not so in this Case, the Words being, he hath as much Law as hath a Jackanapes, which is no impeachment of his Learning, for every Man that hath more Law than a Jackanapes, hath as much: Sed non allocatur, for the Comparison is to be taken in the worst Sense, and tantamounts that he hath no more Law than a Jackanapes, which is a slander in his Profession, whereby he acquires his Living. Owen 17. Cro. Eliz. 342. Goldsb. 126. Winch 40.  
Vide March fol. 60. where Judge Berkley says, it had been adjudged, where one said of a Lawyer, That he had as much Law as a Monkey, that the Words were not Actionable, because he hath as much Law, and more also; but if he had said, He hath no more Law than a Monkey, these Words were Actionable. See Hetley 71.   

Words against an Attorney.  
ACTION for these Words; Is Martin (the Plaintiff) your Attorney? He is the Foolishest and Simplest Attorney towards the Law, and if he doth not overthrow your Cause, I will give you my Ears. He is a fool and an Ass; and adjudged for the Plaintiff, for these Words touch him in his Place. Cro. Eliz. 589.   

Slander against a Parson.  
SUIT in the Spiritual Court by a Parson for saying of him, That he was a Fool, an Ass, and a Goose, for which, upon Motion, a Prohibition was granted, for they are only Words of Choler, as Pocky Faced Knave, Jade, and Quean, and relate not to his Profession. 3 Keb. 28. Newcombin and Kingerby.   

Where Things shall not pass, tho' granted by express Words.  
A MAN by Deed indented, bargains and sells, gives and grants his Manor of Dale, and all his Trees growing upon it; but the Deed is not enroled according to the Statute; here, inasmuch as the Manor passes not for want of Inrolment, the Trees shall not go to the Bargainee, altho' they are granted by express Words; and that the Grant of every Man shall be taken most strongly against himself; for the Law does not favour Fractions and Severances of Trees from the Freehold and Inheritance of the Land, because by such means very often Trees shall be wasted and destroyed. Co. 11. 48. a. in Liford's Case. 1 Roll. Rep. 100  
Besides, it was not the intent of the Parties that the Trees should pass as Chattels without the Manor, and as one shall not frustrate or defeat his own Grant by his own Act; so the Words of a Grant shall be construed according to a reasonable and easy Sense, with regard to the meaning of the Parties by them; and therefore 14 H. VIII. 1. if a Man grant all his Woods and Trees, Appletrees will not pass.  
Note, that tho' by a grant of all my Trees, Fruit-Trees will not pass, yet if I except all my Appletrees, all other Fruit-Trees pass, as I suppose. Vide Hob. 304.  
Again, The Law construes things with equity and moderation, and therefore restrains a general Grant, if there be any mischief or inconvenience in it, and therefore if a Corody be granted to one, and his Servant to sit at his Mess, he cannot bring a Servant that hath some filthy or noisome Disease: So if a Common be granted to one for all his Beasts, yet he shall not have Common for Goats, nor Geese, nor other Beasts not commonable. Finch his Law 56.  
So if a Man grant Common in all his Lands, the Grantee shall not have Common in his Orchards, Gardens or Meadows. 3 Leon. 250.   

Where one may have an Estate Tail, yet all the Issues barred to inherit.  
BARON and Feme Tenants in special Tail, with Remainder to the Barons right Heirs, they have Issue A. the Baron dies, A. in the Life of his Mother levies a Fine with Proclamations to I. S. and resolved it should bar the Estate Tail, tho' 'twas clearly admitted that the Feme remained Tenant in Tail. Co. 3. 50.  
If the Son of Tenant in Tail levy such a Fine in his Father's Life, it bars the Tail from descending, yet the Father remains Tenant in Tail. Co. 9 141. for the Son is concluded, and cannot enter against his own Fine. See Stat. 32. H. VIII.   

Name.  
DEBT upon Bond was brought against one Jaacob Aboab, by the Name of Jacob, he pleaded that he was called and known by the Name of Jaacob, and not Jacob; but it was overruled. Mod. Rep. 107. 3 Keb. 284.  
See a notable Case in Stiles Rep. 389. 390, etc. the Report of it is very long, but this is the short on't. One [Mills] seized of Lands in Fee, devised them to Elizabeth his Daughter in Tail, with a proviso that if she Married one of his own Surname, that then she should have the Lands in Fee-Simple: She Married one [Mill] but commonly called and known by the Name of [Mills] also: In this Case the Court held that Mills and Mill are not one and the same Surname, for the Testator had a particular Eye to his own true Surname, and the common reputation of Mill and Mills to be the same Name, shall not make Mill to be the Testator's true Surname. Note, This is a special Case, and goes not according to the ordinary Rules of Names that sound alike.  
Hence I shall take occasion to treat of Names, what Names are the same in Law, and what are not.  
It is held that Sain John and Saint John are several Names: So are Elizabeth and Isabel; so Margaret, Margot, and Margery; so Gillian and Julian; so Agneiss and Anne; so Cousin and Cousin; so Edmund and Edward; so Randulphus and Randal; and so Randulphus and Randolphus; so Randolph and Ranulph; so Isabel and Sibil; for all which see 1 Anderson 211. 212. 2 Cro. 425. 558. 640. 2 Roll. 135.  
But Piers and Peter are one Name, 2 Cro. 425. so Saunders and Alexander; so Garret, Gerrard, and Gerald. 2 Roll. 135. so Joan and Jane. 2 Cro. 425.  
Note, Tho' James and Jacob are several Names, yet Jacobus is Latin for both, and will serve for either of 'em. 2 Roll. 136.  
Sir John Hathwaie was bound in a Bond thus, Noverint Universi me Jean. Hathwaie teneri, etc. this was a good Obligation, for [Jean.] shall be taken for an abbreviation of Johannem, and so the same Name. Cro. Car. 416. 418. 2 Roll. 136.  
Note, If the Name of the Obligor be subscribed, it is sufficient, tho' there be a blank or blot for his Christian Name in the Bond. 2 Cro. 261. Dobson and Key's. See more of Names, 1 Keb. 427.   

What one cannot do by another.  
THERE are some things personal, and so inseparably annexed to a Man's Person, that he cannot do them by another, as the doing of Homage and Fealty. So it is holden that a Lord may beat his Villain for cause or without cause, and the Villain is without remedy; but if the Lord command another to beat him without cause, who does accordingly, the Villain shall have an Action of Battery against him. So if the Lord destrain his Tenants Cattle, when nothing is behind, yet the Tenant for the Reverence and Duty that appertains to the Lord, shall not have Trespass vi & armis against him; but if the Lord command his Bailiff or Servant to destrain in such case where nothing is behind, the Tenant shall have an Action of Trespass vi & armis against them. Co. 9 76. a. in Comb's Case.   

Where a Commoner shall have an Action upon the Case against the Lord.  
If the Lord surcharge the Soil with Coneys, the Commoner upon this particular loss may have an Action upon the Case against him. Yeluerton 104. 105. See Cro. Car. 387. 388.   

Words ending in Ment.  
JUSTICE Doderidge says, It has been wittily observed, that all Words which end in Mentivole, shall be taken and expounded according to the Intent, as Parliament, Testament, Arbitrament, etc. Latch 41. 42.   

Where one shall be remitted against his own Discontinuance and Reprisal.  
BARON and Feme Tenants in special Tail; He aliens in Fee, and takes back an Estate to them for their Lives, this is a Remitter to both, maugre the Husband, for it cannot be so to the Wife, without also to him, because they are but one Person in Law, tho' he be estopped to claim, and so it is a remitter in him against his own alienation and reprisal. Lit. Sect. 672.  
Note, if he had taken the Estate to him alone, he could not have been remitted against his own alienation; but when the Estate is made to Husband and Wife, tho' they are but one Person in Law, and no Moieties between 'em, yet because she can't be remitted unless he be remitted also, and because remitters are favoured in Law, the more ancient and better rights being thereby restored, therefore in Judgement of Law both are remitted, quod nota. 1 Inst. 354.   

Where a Wife may convert Goods to her own use.  
THE common Doctrine is, That a Wife cannot convert Goods to her own use, because she has no property during the Husband's Life; yet note, In some Case there may be a Conversion of Goods by the Wife to her own use, as if she find, or take Barley from another (as the Case was) and bake it into Bread, and eat it herself. March fol. 60. and Jones 443. per Jones Justice.  
Note, When the Baron and Feme join, it is the Act of the Baron only, and the Feme in such Case cannot convert to her own use, But an Action of Trover well lies for conversion by the Feme before Marriage, or by the Feme only during the Coverture, for she may do a Tort solely, and the Husband shall he sued with her, but not where she joins with the Husband. Cro. Car. 254. Rheims and Humphreys, and fol. 494. Perry and Diggs, acc '. See 2 Cro. 5.   

Where a Wife may give Evidence against her Husband.  
THE Lord Coke in his 1 Inst. fo. 6. b. says, It has been resolved that a Wife cannot be produced either for or against her Husband, quia sunt duae animae in carne unâ, and it might be a cause of implacable Discord between them, and a mean of great inconvenience: Yet it was resolved in the Lord Audley's Case, Hut. Rep. 116. that altho' in the Case of a Common Person between Party and Party, the Wife cannot be produced as a Witness against her Husband, yet between the King and the Party upon Indictment she may, although ' it concerns the Feme herself; as in that Case the Lady Audley gave Evidence against my Lord, who was accessary to her Rape, and was thereof found guilty.   

Husband swears for his Wife's Debt.  
DEBT against Baron and Feme for certain Barrels of Beer sold to her dum sola, etc. they both waged their Law, and did both swear according to the form of the Oath, quod nota, That the Husband swore for his Wife's Debt. Cro. Eliz. 161. Weeks and Holms. See 1 Inst. 172. b. acc '. that the Husband and Wife of full age, shall make their Law for the Debt of the Wife before the Coverture.   

Whether a Wife shall be examined upon a common Recovery.  
SEE 1 Siderf. 322. in Fine, where the Reporter says, Quaere, How a Wife can be barred, unless by Fine, because she is not examined upon a common Recovery: Yet vide the same Rep. fol. 11. that she shall be privately examined when she suffers a Common Recovery, as well as where she levies a Fine, by Bridgman Chief Justice, (tho' she was there permitted to do it without such examination) And 1 Roll. 347 is, That if Baron and Feme suffer a Recovery, it shall bind her, because she is examined in it: And Co. 11. 77. a. if a Feme Covert make any Conveyance, unless by Fine or Recovery, it is avoidable, yet fol. 78. a. it is said, That the Person of a Feme Covert is dissabled to convey her Land unless by Fine upon due examination. Vide Stiles 320. by Roll. Chief Justice. It is not to be questioned whether a Recovery bind a Feme, for it is the common Practice, and 'tis not necessary to examine her, tho' it be a prudential thing to do it; but if it be not done, it is not averrable that it was not done.   

Man and Wife but one.  
A WRIT of Conspiracy for endicting one of Felony does not lie but against two Persons at the least, therefore you shall not have such a Writ against Husband and Wife, because they are but one Person. (and one only cannot be said to conspire with himself) F. N. B. 116. K.   

Payment.  
IN Debt, the Condition was to pay 100 l. to I. S. and his Wife: per Curiam, if the Defendant plead payment to I. S. alone, it is good, for payment to him suffices, without naming the Wife. Goldsb. 73. May and Johnson.  
Note, If one is obliged to pay Money to two actually, he can pay it only to one of 'em, for he cannot pay the same sum to two several Persons at one and the same time. 2 Siderf. 41.   

Privilege.  
IF the Wife of an Attorney of the King's-Bench be arrested, she ought not to claim the Privilege of that Court, not to put in bail to the Action, as her Husband may; but he must put in bail for her, and for want thereof she shall go to Prison. Styles Pract. Reg. 446.   

Slander of a Justice of Peace.  
ONE said of a Justice of Peace, He is a Loggerheaded, and a Slouch-headed, Bursenbellied Honnd; this is no cause of Indictment before Justices of Peace in their Sessions, partly for want of Jurisdiction, and partly because the Words are not Actionable. This was assigned for Error after Judgement. Adjornatur. 1 Keb. 629.   

Pictures and Hang.  
A PICTUE nailed through the Frame to the Wall is fixed to the Freehold, and cannot he removed, by Twisden: But note, such things as use not ordinarily to be so fixed, tho' they are nailed yet may be removed, as Hang, etc. Contrary of a painted Cloth nailed round, by Hales and Rainsford. 3 Keb. 74.   

Simony without the Privity of the Incumbent or Patron.  
THE Father of the Incumbent contracted with the Patron's Wife to give her 100 l. if the Patron would present his Son, the Patron and Incumbent not knowing of this Contract, as it was found by special Verdict, yet held within the purview of the Stat. 31 Eliz. So note, Simony may be by compact betwixt Strangers without the Privity of the Incumbent or Patron. Cited Cro. Car. 331. to have been adjudged in Calver's Case.  
An Incumbent being sick, the Father contracted for the next Avoidance for 100 l. in the presence of his Son, and after the Incumbent died, the Father presented his Son, who was Inducted, and agreed clearly to be Simony: but all the Judges (except Anderson) held, That if the Son had not been privy to the bargain, it had not been Simony; yet they agreed, If a Stranger buy the next Avoidance, and present one that is not privy till afterwards, and after is made privy, and then presented, that this is Simony: Not so where the Father buys, because bound in nature to provide for his Son; Q. of the difference. Moor 916. Smith and Sherborn's Case. Vid. Noy 22. Hob. 165.   

Extinguishment.  
LESSEE for Ten Years grants a Rent-charge to his Lessor for the said Years, the Lessor grants the Remainder to the Lessee for Years: The Court held that the Rent was gone, because the Lessor who had it was Party to the destruction of the Lease, which is the ground of the Rent. 4 Leon. 2. Buckhurst's Case.   

Lease.  
A MAN made a Lease for Years by Indenture, reserving a Rent, and in the Counterpart of the Lessor 27 l. was reserved, in the Counterpart of the Lessee but 26 l. afterward a Controversy arose between them what Rent should be paid, the Lessor would have 27 l. the Lessee would pay but 26 l. but after was content to pay 27 l. and so agreed with the Lessor, and drew a Stroke in his Indenture, and made it 27 l. this made his Lease void. 2 Roll. 29. Facman's Case.   

Simony, tho' no Admission nor Institution.  
ONE was Simonaically promoted to a Benefice, but this was Anno 1659. when there were no Bishops, and so there was no Admission nor Institution, and therefore moved he could not be guilty of Simony within the Statute: This was offered to be found specially, but dissallowed by the Court, for by this Argument none could be guilty of Simony in the late times, because no Bishops to admit and institute, which would be inconvenient. 1 Siderf, 221. Snow and Phillips.   

Advowson.  
A MAN presents to his own Church as Proctor to another, by this he loses his Advowson. So if Lessee for Years of an Advowson be presented to the Church, 'tis an Extinguishment of the Term. Owen 142. Rudd and Topseys Case.   

Property changed by Offerings.  
IN the time of Popery here, if a Stranger had taken my Goods, and offered them to an Image in a consecrated Church, this had made as good a change of the property of my Goods, as if I had sold them in a Market overt; but if I found the Goods after in the Wrong-doers possession, I might take them again. 34 H. VI 10. Co. 10. 91. a. Degg 147.   

Property in Negroes.  
IN the Case of Butts and Penny, 3 Keb. 785. it was resolved by the Court that Negroes are by Usage tanquam bona, and shall go to Administrator until they become Christians, and thereby they are enfranchised: This was upon a special Verdict in an Action of Trover, the Jury finding that Negroes are usually bought and sold in India.  
So Trover lies for Monkeys, because they are Merchandise, and valuable, (without showing they are tame or reclaimed.) 2 Cro. 262.   

Libel for Knave.  
LIBEL for calling one Knave, Prohibition lies, because in the time of H. VI Knave was a good Addition. Week's Case. Trin 12 Jac. B. R. Latch 156. 1 Siderf. 149.   

Attorney made a Knight.  
IF I make I. S. my Attorney, and he (the Warrant of Attorney still continuing) is made a Knight, yet the Warrant of Attorney is not determined, tho' the Word Knight, which is now part of his Name, be not in it. By Brown Justice. Owen's Rep. 31.   

Creation of a Gentleman.  
A GENTLEMAN is by Descent, yet (says the Lord Coke) I read of the Creation of a Gentleman, and thus it was: A French Knight came into England, and challenged John Kingston Yeoman (a good and a Strong Man at Arms, but no Gentleman) at certain Points and Deeds of Arms, etc. Unde Rex (saith the Record) ut dictus Johannes honorabiliùs in praemissis accipiatur, ipsum Johannem in ordinem Generosum adoptavit, & Armigerum constituit, & caetera honoris Insignia ei concessit. 2 Instit. 595. and 668.   

Addition.  
A GENTLEMAN by Reputation that is neither Gentle by Birth, Office, or Creation, but commonly called Gentleman, and known by that Name, is a sufficient Addition within the Stat. 1 H. V c. 5. Cater's Case, cited 6 Rep. 67. a. But if he is named Yeoman, he cannot abate the Writ. 2 Inst. 668.  
'Twas moved to quash an Indictment of Forcible Entry, because the Addition of the Parties was in English, scil. Weaver, Confectioner, etc. but the Court overruled it, for many Persons have been hanged that have had no other Addition in their Indictment: Note, It is the constant practice to put them in English in Indictments. 1 Siderf. 101. the King against March, etc.  
If a Gentleman by birth be a Mercer, or, etc. and be named so in an Original, etc. he may abate the Writ, for he ought to be named by the degree of a Gentleman, because it is worthier than the Addition of any Mystery. 2 Inst. 668. 669.   

Wife loses Money at Play.  
OUR Law excludes not the Wife from using her Husband's Goods in common with him (which is the reason that a Wife cannot feloniously take her Husband's Goods, and tho' she so take 'em, and deliver 'em to a Stranger, yet no Felony in the Stranger: And that if a Feme Covert say of I. S. He stole my Plate out of my Chamber; altho' she may not have Plate of her own, yet because in common Speech 'tis well known that the Wife accounts her Husband's Goods her Goods, the Words are Actionable, Cro. Car. 52.) yet for all this, she cannot dispose of her Husband's Goods, and therefore 'twas adjudged in Stephens his Case, that where a Wife played at Cards, and lost 40 l. of her Husband's Money, that the Husband should recover it again in Trover against the Gamester. 1 Siderfin 122. 1 Keb. 340.  
Quaere what Remedy for the Gamester if he loses to the Wife, or will the Law construe it a Gift of the Money to her, etc.   

A. takes B's Wife and  her.  
AN Adulterer takes away another Man's Wife, and puts her in new Clothes; the Husband may take the Wife with her Clothes, for it is as it were a Gift of the said Apparel unto her: Besides, the more worthy thing draws to it things of less worthiness, as a base Mine where there is Over, shall be the King's for the worthiness of the Ore. Finch's Law 22, 23. Vide Cro. Car. 344.   

Woman Indicted for copulating with a Dog.  
ONE Hicks was Indicted at the Old Bailie on the 12th of July, 1677. upon Stat. 25 H. VIII. cap. 6. for Buggery, having suffered a Dog to copulate with her, which being fully proved against her, and found by the Jury, she was condemned and hanged at Tyburn on the 18th of July following, and the Dog on a Tree by. 3 Keb. 800. The King and Hicks.  
See Leviticus chap. 18. v. 23. Thou shalt not lie with any Beast to defile thyself therewith, neither shall any Woman stand before a Beast, to lie down thereto: It is Confusion.   

Woman promises never to Marry again.  
A GENTLEWOMAN took her Husband's Death so heavily, that she said, She would never Marry again; but her Son comforted her, saying, God will provide a new Husband, and said, he would give her 10 l. to pay 100 l. when she married; she accepted the Money, and within half a Year after Married, whereupon the Son brought an Assumpsit for the 100 l. and this being brought into the Chancery, the Master of the Rolls awarded him only 10 l. saying, he would give never a Penny more, for that it was unreasonable to bar a Gentlewoman from Marriage. Owen 34. Vide 2. Keble 865.   

Bond not to sell his Wives ' Clothes.  
A MAN was obliged with condition not to sell his Wife's Apparel, and held a good Bond, tho' it was moved to be against Law, and contrary to the liberty of a Husband so to oblige himself; but Coke held it clearly good, as if one should oblige himself to a Stranger to pay to his Wife yearly 20 l. this without question is good. 1 Roll. Rep. 334. Smith and Watson's Case.   

Deed takes effect from the Delivery, not the Date.  
IF A. covenant that B. shall have all his Trees now standing, this refers to the Trees standing at the time of the delivery, and if any be felled after the Date, and before the delivery, he has no remedy for them, by Fleming. 2 Cro. 264. Vide Dyer 139. a. and 2 Roll. 21.  
In an Action of Debt upon a Bond, the Defendant pleaded Deins Age; the Case was, That when the Obligation was Sealed and Delivered, the Defendant was of full Age, but at the time when the Bond bore date, he was under Age 'twas ruled that the time of making the Bond was when it was sealed, and not when it bore date. 1 Brownl. 30. 31.   

Deed enroled the Day of the Date, yet good.  
THE Stat. 27 H. VIII. c. 16. says expressly, That Bargains and Sales to an use of Inheritance of Freehold must be by Deed indented and enroled within six Months after the date thereof, etc. yet it has been held that a Deed may be enroled the very Day of the date, which the Lord Hobart says is by reason of the intent of the Law, and not by the Letter. Hob. 139. Moor 40. and 42. acc. ' though it is there said that such an Enrolment had been adjudged void. See Latch. 14.   

Tender of 50 l. in Stone.  
IN the Case of Hooks and Swain, 1 Siderfin 151. Twisden says he remembered this nice Case; Sir William Fish was bound by Obligation to pay (such a Day) in Gray's- Inn Hall, fifty Pounds, generally, without saying of Money; and therefore upon the Day, when the Gentlemen were at Supper, Sir William came in, and tendered fifty pound weight of Stone, and adjudged no tender. See Owen 64. where Plowden says, Libra in Latin signifies a Weight; yet if one is bound in Vigint. Libris, and forfeits his Bond, he must pay Money, and not Led, or the like.   

Witnesses.  
ONE burned in the Hand for a Felony may be a Witness in a Cause, by Rolls Chief Justice, for he may purchase Land, and his fault is purged by his punishment. Styles Rep. 388. and Pract. Reg. 571.  
If an Action be brought against two, and at the Assizes the Plaintiff proceeds only against one of them, the other may be allowed a Witness in the Cause. Godb. Case 418.   

The Sheriff arrests a Man looking out of his Window, etc.  
WHEN an Execution is lawfully begun, or hath a legal Commencement, the Sheriff may justify the breaking of the Parties House to take him, otherwise if there be no legal Commencement: This diversity was taken and agreed for Law in Sir William Fish his Case; Sir William was looking out of his Window, and the Sheriff per fenestram delivered to him a Capias ad Satisfac. to take the said Fish, and apprehend him, and Fish escaped from him, and the Sheriff broke the door of his House maintenant, and retook him, and adjudged lawful, because there was a lawful beginning of the Execution before, which was presently pursued. Palmer's Rep. 53.  
Vide Hobart fol. 62. That a Sheriff cannot upon private process rush into a House which by craft, as knocking at the Door, etc. he procured to be opened unto him, and there the first entry was held unlawful, for the opening of the Door was occasioned by craft, and then used to the Violence intended.   

Sanld.  
IF a Man say to another, Thou art a Rogue, and a Pocky Rogue, and the Pox haunts thee twice a Year; an Action lies, for hereby 'tis apparent he intended the great Pox, because these are wont to grieve those that have them bis per annum. viz in the Spring and Autumn. Prekington's Case. 1 Roll. 66, 67.  
Where Circumstances show the apparent intention of Words doubtful in themselves, that they are slanderous, an Action lies for them, as where one said of a Woman [That she did lie with a Weaver of Colchester in a Dutch, and the Weaver's Breeches were down, and they were at it] an Action lies, for altho' the Weaver might lie with her in a Ditch without harm, yet the latter Words show he intended that the Weaver had carnal Knowledge of her. Roll. 1 Rep. 420. Root and Molyne's Case.  
[I know what I am, and I know what the Plaintiff is, [I never Buggered a Mare:] Per. Cur ' though no grammatical affirmation is a sufficient scandal, yet being found with such intention, and so imagined by the Hearers, the Ironical speaking will not excuse. Jud. pro Quaer '. 3 Keb. 546.   

Slander.  
A. SAYS to B. One of Us two is Perjured: B. says to A. It is not I; and A. says again, I am sure it is not I: B. shall have an Action for these words, for the subsequent Words show apparently that he intends Him. 1 Roll. 75. Coe and Chambers.  
Justice Twisden said, he remembered a Shoemaker brought an Action for saying He was a Cobbler; and tho' a Cobbler be a Trade of itself, yet 'twas held the Action lay; in Chief Justice Glyn's time. Mod. Rep. fol. 19  
Margaret Commings brought an Action for these Words, viz. Thou art a Whore, and a base  Arse Whore, and adjudged Actionable. 2 Siderf. fol. 5. (the French Pox usually comes of burning, Cro. Eliz. 2.) but 'tis left a Quaere there, whether the Words [Thou art a  Whore] will bear an Action.   

Not Guilty.  
A MAN may plead Not Guilty, yet tell no lie, for by the Law no Man is bound to accuse himself, so that when I say Not Guilty, the meaning is, as if I should say by way of Paraphrase, I am not so guilty as to tell you; if you will bring me to a Trial, and have me punished for what you lay to my charge, prove it against me. Selden.   

Presentation.  
IF I am seized of an Advowson, and I present to it as Procurator to a Stranger, this shall be an Usurpation upon myself for the Stranger.  
So if I present to an Advowson, whereof I myself am seized, as Attorney to a Stranger, this is an Usurpation for him. 17 E. 3. 60.   

Where a Child may choose his Father.  
IF a Man has a Wife and dies, and within a very short time after the Wife marries again, and within nine Months hath a Child, so as it may be the Child of the one or the other; some have said that in this Case the Child may choose his Father, Quia in hoc casu Filiatio non potest probari; for avoiding of which question, and other inconveniences; the Law before the Conquest was, Sit omnis Vidua sine Marito duodecim mensibus, & si maritaverit perdat dotem. 1 Inst. 8. a.  
See Finch his Law 117. that if one die, his Wife priviment enseint (i. e. so with Child, as it is not discerned) and she take another Husband, the Issue born within a Month (or such a time as it is impossible he should beget it) shall be accounted the Son of her first Husband, and citys 21 E. 3. 29.  
'Tis said the Law now is, That if a Wife bring forth a Child begotten by a former Husband, or any other before marriage, but born after marriage with another Man, this latter must own the Child, who shall be his Heir at Law.   

Assault.  
IF a Man assault me, I am not bound to attend until he strikes, but I may lay him on before in my own defence, for it may be I shall come too late afterwards. 2 H. IV. 8. per Curiam.   

Wearing a Sword no breach of the Good Behaviour.  
THE Wearing of a Sword after one is bound to his Good Behaviour, is no breach of the Good Behaviour now; as perhaps it was heretofore (see Cromp. Justice of Peace 119. 126.) when Swords were not usually worn but by Soldiers, for than they struck as great a Terror in People as a Blunderbuss does now. But since at this Day Swords are usually worn by all sorts of People, this cannot now be construed a breach of the Good Behaviour: So that which heretofore was a Crime, is now by Custom become none. Hawles' Remarks, etc. 81.   

Slander.  
ACTION will lie for these Words, [This is the Whore that my Man Thomas begat a Bastard on, and spent all my Money upon, and the Quean hath been too long in Town to my ease.] Styles 274 277. ●. Roll. 38.  
So for this [He hath got Mary Nab with Child, and the Child is his, and I have tried it with a Sieve and a pair of Sheers.] Styles 379.  
So for this, [Thou art an Whoremaster, for thou hast lain with Brown 's Wife, and hadst to do with her against a Chair,] whereby he lost his Marriage; tho' 'twas objected, This was the first Precedent where loss of Marriage was ever ●aid for Words spoken of a Man. 2 Cro. 323. Vide 3. Bulls. 48.  
It will not lie for this, (A. is an errand Whore, and would have lain with me Seven Years since, and I would not unless she would go to the Hedge.] for this is a Spiritual Slander only.]   

Wife a Chattel.  
A MAN may justify the Battery of another in defence of his Wife, for she is his Chattel. 2 Roll. 546. the end.   

Prohibition.  
A. WAS sued in the Ecclesiastical Court for beating his Wife, and calling her Whore, and sentenced to pay her three Shillings a Week for Alimony, and divers Fines were imposed upon him for non-performance, and provided he should enter into a Recognizance; a Prohibition was granted. 2 Brownl. 36. Agar's Case.   

Complaint in the Spiritual Court by the Wife against her Husband.  
CLOBORN'S Wife complained against him in the Spiritual Court causâ saevitiae, for that he gave her a Box on the Ear, and spate in her Face, and whittled her about, and called her Damned Whore: This was not by Libel, but verbal Accusation, reduced after to writing: The Husband denied it, but the Court ordered him to give her four Pound every Week pro Expensis Litis and Alimony; whereupon he moved for a Prohibition, suggesting that he chastized his Wife for a reasonable cause, as by the Law of the Land he well might, after which she went from him, and that they were reconciled again, which took away the former saevitia, as reconciliation after Elopement. Richardson Chief Justice said, The Suit being held without Libel is no ground for a Prohibition, if they proceed according to their Form, which we are not Judges of, but if they deny a Copy of the Libel, a Prohibition lies by the Statute. For the matter; The Sentence in causâ saevitiae is à Mensâ & Thoro, and we cannot examine what is cruelty and what not: But without doubt the matter alleged is cruelty, for spitting in the Face was punishable by the Star-Chamber: But if Cloborn had justified, and set forth a Provocation by the Wife to give her reasonable castigation, there would be some colour for a Prohibition: and they advised him to tender a Justification, and if refused, then to move for a Prohibition. Hetley 149. 150.   

Where a Horse shall be led to the Pound with his Rider on his Back.  
A HORSE whereon a Man is riding cannot be destrained for Rent: But Chief Justice Keeling was of opinion that such a Horse may be destrained Damage Feasant, and that he shall be led to the Pound with his Rider upon him. 1 Siderfin 440.   
FINIS.   

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THE History of Polybius the Megalopolitan, containing a general Account of the Transactions of the World, and principally of the Roman People, during the first and second Punic Wars, with Maps; describing the Places where the most considerable Engagement and Battles were fought, both by Sea and Land: Also an Account of their Policies and Stratagems of War, of the Ancient Romans, in Conquering the greatest part of the then known World, in Fifty three years: Translated by Sir H. S. To which is added, a Character of Polybius and his Writings: By Mr. Dryden, in Two Volumes. 8vo. Price 10 s.  
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Advice to a Young Lord, Written by his Father, under these following Heads, viz. Religion, Study and Exercise, Travel, Marriage, House keeping, Hospitality, of the Court, of Friendship, of Pleasure and Idleness, of Conversation.  
Aristotle's Rhetoric, or the true Grounds and Principles of Oratory, showing the right Art of Pleading and Speaking in full Assemblies and Courts of Judicature. In four Books. Second Edition.  
The Religious Stoic, or a short Discourse on several Subjects, Viz. Of Atheism, Superstition, the World's Creation, Eternity, Providence, Theology, Strictness of Churches, of the Scriptures, of the Moral and Judicial Law, of Monsters, of Man and his Creation, of the Immortality of the Soul, of Faith and Reason, of the Fall of Angels, and what their Sin was, of Man's Fall, of the Style of Genesis, why Man fell, with a Refutation to the Millennaries, with a Friendly Address to the fanatics of all Sects and Sorts. The Second Edition, by Sir George Mackenzie.  
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