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 stollen 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 Mansion-House 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 Mansion-House 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 Judgment 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 currupted 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 Battail in case of Appeals and Writ of Right is by publick authority and course of Law whereunto all the people by an implied consent are Parties and as some hold has it's Warrant by the Word of God by the single Battel between David and Goliah which was strucken by publick 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 lingring War 1. Either a single Combat between the two Kings 2. Or a Combat between the two Kings and three of their Unkles 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 controversie 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 Turnament 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 fighting at Barriers or running at Tilt or Justs without the Kings Command whereby a Man is slain and altho 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 Battel Champion AN Approver that kills the party accused in Battel 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
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 wrong-doer 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 hi 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 malitiously Hob. 134. the Case of Weaver and Ward So if Baron and Feme commit a Felony together she is neither principal nor accessory in respect of her obedience to her Husband's Will but if they joyn in committing a Trespass upon Land or c. 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 Mad-man 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 c. 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 entreth 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. Curtesie of England IF a Woman seised 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 Curtesie 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 alledge 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 seised of such an Estate of Tenements c. 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 Curtesie 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 seised the Heir shall not make himself Heir to the Wife which is the reason that a Man shall not be Tenant by the Curtesie 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 Curtesie 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 recompence 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 anothers 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 falsifie 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
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 infranchised 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 shewing 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 c. 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. 'T was moved to quash an Indictment of Forcible Entry because the Addition of the Parties was in English scil Weaver Confectioner c. but the Court over-ruled 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 c. If a Gentleman by birth be a Mercer or c. and be named so in an Original c. 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 't is 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 't was 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 c. A. takes B's Wife and Cloths 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 Ore 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 Baily 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 thy self 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 barr a Gentlewoman from Marriage Owen 34. Vide 2. Keble 865. Bond not to sell his Wifes ' 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 Flemming 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 't was ruled that the time of making the Bond was when it was sealed and not when it bore date 1 Brownl 30. 31. Deed enrolled the Day of the Date yet good THE Stat. 27 H. VIII c. 16. says expresly That Bargains and Sales to an use of Inheritance of Freehold must be by Deed indented and enrolled within six Months after the date thereof c. yet it has been held that a Deed may be enrolled
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 Ferry-Man 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 over-board whereupon Mouse brought Trespass c. 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 't was directly proved that the Men had been drowned if the things had not been heaved out But 't was agreed also that the Owners in such Case shall have their Remedy upon the surcharge against the Ferry-Man and if there is no surcharge but the danger comes by the Act of God then every one must bear his own Loss 12 Rep. 63. and 2 Roll. 567. One may justifie the felling of a Tree in the Ground of another in Case of necessity 6 E. 4. 8. See 22 Assise 5 6. that a Man may justifie 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 adjoyning 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 justifie 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 c. Adj. no Plea upon demurrer for one cannot justifie 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 shew 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 Stiles 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 c. 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 Cattel into anothers 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 Joynt-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 Joynture 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 Out-lawed in Westminster-Hall THE King of Spain was Out-lawed in Westminster-Hall I being of Councel 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 Out-lawed 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 Out-lawed 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 Non-Suit 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' engendred 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 Tryal 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 entred 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 c. 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 seised for non-payment 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 't was 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 râ—p 177. cited also in Stiles 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 Oyl 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 before-hand 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 Preheminences and Priviledges 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 'T is answered No If you ask whether the King may 't is 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 Burie a sp ecial Verdict was given upon Divorce between Burie 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 dissability 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 't was adjudged that his Issue by the Second Wife was lawful for 't is 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 Vice-Chancellor 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