at Rovers or at a Bird or hewing a Tree and the Hatchet-head flies off or a School-Master 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. Arch-Bishop Abbot a Man of a holy and unblameable Life medling with edg'd 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 Guilford in great perplexity but the King granted out a Commission to enquire whether casual Homicide did make the Arch-Bishop 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 Woman-kind with brute Beasts 3 Inst 58. Bugeria is an Italian Word and signifies this description and it was complained of in Parliament that the Lombards 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 c. 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 c. 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 c. ibid. And of late Years one Hick's was Indicted at the old Baily 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 c. Vi Armis in quendam Florence Fitz-Patrick Yeoman insultum fecit cum eodem felonicè contra naturam rem veneream habuit ipsumque F. c. carnalitèr cognovit peccatumque illud Sodomiticum c. cum eodem F. commisit c. 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 Judgment Felony Rape Burglary IF a Woman kill a Man that assaults her to ravish her 't is not Felony because he comes to commit a known Felony himself Hales Pla. cor tit Felonies If a House be broken and enter'd 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 Misdemeanor then by 13 E. 1. c. 34. restored to Felony again Rape is a violent deflouring 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 then it might be otherwise Dyer 304. pla 51. Post The Law is That a Wife shall not be endowed unless she be past 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
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 Coffee-House in Russel-Street Covent-Garden 1694. TO THE READER Courteous Reader THO' no Profession is more Honorable 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 Vnpleasant or if it be yet when the Pill is Gilt it is easily swallowed However in some sence 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 Authentick 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 chiefly to Delight which I thought cou'd 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. Battail 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 c. 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. Customes 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 c. 113. Dower Page 133 134. Drinking Page 95 96. Duel Page 60 61 62 63 c. 66 c. E Election Page 201 202. Enrollment 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 c. 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 Hangings Page 186. Heir Page 19 88 135. I Ideot Page 2 3. Jews Page 114 115. Ignorance Vide the Preface Indictment Page 4 c. 10 11 13 23 24 c. 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. Judgment Page 45 46 48 49. Jury Page 74 109. Justification Page 102 103 104 139 143 167. Justs Page 64. L Law Vide Preface c. 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. Lunatick 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 Barr Page 14 134 173. Possession Page 173. Practice Page 83. Prerogative Page 112. Presentation Page 189 201. Prince Committed Page 165 166. Priviledge 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. Rent 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 Curtesie 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. Turnaments Page 64. V Uncertainty Page 40 41 45. Voucher 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
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
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 Summ of Money assumed to cure the Servant of I. S. of a hurt which he had in his Leg and afterwards applied unwholsome 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 justifie 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 justifie 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 Proceedings 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-Maid-Servant and the Order of Sessions was that I. S. should contribute to half the charge of keeping it Curia 'T is 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 justifie the heating a Man in defence of your Possession but you may say that you did molliter manus imponere c. Keeling You ought to have replied that you did Molliter manus imponere quae est eadem transgressio Curia Quer ' nil 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 't was moved in arrest that the Words would not maintain an Action because not slanderous for 't is 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 Sence 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 saies 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 Martyn 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 Fooll 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 Mannor of Dale and all his Trees growing upon it but the Deed is not enrolled according to the Statute here inasmuch as the Mannor 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 Mannor 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 easie Sence 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 Apple-Trees will not pass Note that tho' by a grant of all my Trees Fruit-Trees will not pass yet if I except all my Apple-Trees all other Fruit-Trees pass as