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 Curtesie 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 't is 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 Registred 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 PHYSICK Eminent for the CURE of all sorts of VENEREAL SCORBUTICK and DROPSICAL PERSONS still lives in Great Knight riders 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 Serjeant 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 Solemnized 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 untill it be celebrated in facie Ecclesiae or c. 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 Solemnized and without Impediment the whole World could not dissolve it being by one in Sacred Orders tho' at an Ale-house and at Twelve of the Clock in the Night 1 Siderf 64. Tarry and Brown's Case Whether an Ideot may contract Matrimony THO' it be generally said That the Contracts of Ideots are void because such are natural Fools yet it was adjudged Trin. 3. Jac. B. R. in the Case of Stiles and West that an Ideot may consent to Marriage and his Issue shall be Legitimate Shep. Gr. Abr. tit Ideot 1 Siderf 112. and by my Lord Coke the Wife of an Ideot 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 then he is no Ideot naturally and cites 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
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 it's 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 't was 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 Arch-Deacon 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 ministred 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 takes 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 Ideot à nativitate may consent to Marry and his Issue shall be legitimate Stile 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
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 meerly 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 way-lay and rob his Father's and his own Receivers and when one of his Servants was arraigned at the King's Bench Barr 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 sate still undaunted and boldly thus spake unto him Sir I pray remember your self this Seat which I here possess is not mine but your Father's to whom and to his Laws you owe double Obedience if his Highness and his Laws be thus violated by you who should shew your self 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 Majesties pleasure be farther known With these Words the Prince abashed stood mute laid by his Weapons and with obeysance done went to the Prison Medull 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 Judgment 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 c. 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 justifie the detaining of a thing 'till Satisfaction made IF a Taylor has a Sute to make for me he is not compellable to deliver it untill he is paid for the making yet he cannot sell it for default of payment as an Inn-keeper 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 Yelverton 67. Note If I contract with a Taylor to give him so much for making c. he cannot detain the Cloths till he is satisfied c. because he may sue me upon the Contract per Williams 2 Roll. 92. initio See Popham's Rep. 127. Robinson and Walter that an Inn-keeper 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 Judgment 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 c. 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 joyned in the Action and I only for conformity 2 Roll. 568. Huggin's Case Note that Case is reported by Yelverton 89. 90. and warrants not the diversity taken for 't is 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 Stiles 347. where Roll. himself being Chief Justice cites 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
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 c. 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 Woman-Child 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 chast Lucretia being Ravished she was found in extream 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 't is 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 Weather 3. Inst 58. If an Infant within the age of discretion scil Fourteen be slain by a fall from a Cart Horse Mill c. no Deodand but if slain by a Horse Bull or c. 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 Physick 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 judgment 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 ought 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 limitted to an Infant the Remainder over and after the Infant refuses yet the Remainder is good So if a Copy-holder 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 instante that he took the particular Estate eo instante the Remainder vested and the
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
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 Summ 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 Sun-set Stiles Pract. Reg. 47. yet sure 't is 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 License 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 license 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 then 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 Judgment was given against her The Baron and Feme joyn 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 Stiles 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 Judgment for the Plaintiff error was assigned that no Christian Name was alledged Chief Justice Rainsford and Twisden were of opinion That the Plaintiff must averr 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 de quodam ignoto good because the stealing is the substance And tho' the Defendant might have demurr'd 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 Milstone 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 ones 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.
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
for the Matter as Form upon divers exceptions to the pleading Judgment should be given against the King After this one Thomas Harrison Batchelor 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 indited 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. IV. 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 untill 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 shew 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 Ecclesiastick 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 't is 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 stollen 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 Judgment of God his Bowels rotted 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 dwelt 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 deterr 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 ought after his occasion as matter of Story and not with intent to Slander any See the Case 1 Roll. 87. 'T is cited too by Sir Robert Atkins in his Treatise of the Jurisdiction and Privelege of Parliament c. 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 Judgment 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 Baily 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 Bayliff 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