THE Institutes of the Lawes OF ENGLAND, Digested into the Method of the Civill or Imperiall Institutions.

USEFUL FOR ALL GEN­tlemen who are Studious, and desire to understand the Customes of this Nation.

Written in Latine by JOHN COWEL, Doctor of the Civill Law, and Regius Professor in the Univer­sity of Cambridge. AND TRANSLATED INTO ENGLISH, ACCORDING TO ACT OF PARLIAMENT, FOR THE BENEFIT OF ALL. By W. G. Esquire.

London, Printed by Tho: Roycroft for Jo: Ridley, at the Castle in Fleet Street, by Ram Alley, 1651.

THE PREFACE.

THE Eminency of our Author is so well knowne to this pre­sent Age, that it were to little purpose for me to imagine, that what I am able to say, would add any thing to [...]is Glory. Only this, his too much cry­ [...]ng up Parliament Priviledges, rendred him not so much a favourite of those former times as his worth merited; [...]or his Bookes so vendible as they have [...]en since these late changes in Eng­land: And therefore though this Trea­tise [Page] be of the Lawes of England, sin [...] himselfe was so good a Common wealth man, I hope, for the Authors sake it wi [...] find no less acceptance in [...]he Englis [...] World, then if he had lived to mayn­taine what he in that Age durst avow and thereby appeared in his owne na­turall and proper colours. If in an­thing I have erred in this Translation Charity can pardon me, especiall [...] when I shall affirme, that this was worke of Charity in my selfe (as I con­ceived) not to let so choyse a metho [...] of our English Lawes lye obscured in a language, which I know many of this Nation who were wel-willers to the Law could not understand; and to those only it is intended. And if it happen into any other hand, especially into such as [Page] hate the profession of the Law, I do no [...]re regard their censure then they do the Laws Precepts, which our Author te [...] us, are to live honestly, to do no in­jury to any one, and to render every one their due.

Farewell.

A Table of the generall Heads contained in this Treatise.

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

THE First Booke of the Insti­tutes of the Lawes of ENGLAND.

Of Justice and Law.
TIT. I.

JUstice is a constant and perpe­tuall will of rendring unto e­very one their Due. Bract. l. 1. c. 4. num. 2. Fl [...]t. l. 4. c. 1.

1. The knowledge or learn­ing of the Law, is a knowledg of things both Divine and Hu­mane, and a Science distin­guishing what is just, what unjust. Bract. l. cod. num. 4.

2. The Precepts of the Law are these, To live honestly, to doe no injury to any one, and to render every one their due. Id. cod. nu. 6.

3. The Law is to be considered, either as publique or private: We call that the Law pub­lique, [Page 2] which appertaineth to the very Consti­tution of a Common-wealth; and it consisteth in things holy, in Preists and Magistrates: For it is necessary for a Common-wealth to have Churches, in which men may addresse them­selves to God, for the forgivenesse of their sins: It is also convenient to have Priests or Mini­sters, by whom we may be enioyned repentance for our sins; and who may pray for us, and mediate to God on our behalfe, for his helpe and providence. And it is requisite likewise, That there be Magistrates ordained, because by the meanes of those who are appointed to pre­cede as Judges, the Lawes may be put in exe­cution; for it were to little purpose that there should be Lawes, if there were not some to go­verne by those Lawes. Bract. l. 1. c. 5. num. 6.

4. That which we terme Private Law, is that which cheifly belongs to the utility of particu­lar persons, and is secondarily necessary for a Common-wealth, That no one abuse his owne: And so on the other side, what is necessary for a Common-wealth, is likewise secundarily requi­site for the profit of particular persons: And this private Law hath three foundations, Viz. Naturall, Nationall, and Civill. Bract. l. 1. c. 5. num. 3. Flet. 6. c. pri.

Of the Law of Nature and Nations, and the Law Civill.
TIT. II.

THE naturall Law is that which nature, or rather God hath instilled into all Crea­tures. Bract. l. 1. c. 5. num. 4.

[Page 3] 1. The National Law or the Law of Nati­ons, is that which all Nations observe, and which proceeds from the naturall Law. Be­cause the naturall Law is that which is com­mon to all creatures, either on the Earth, in the Sea, or in the Aire. Id. l. 1. c. 5. num. 6. From the Law of Nation comes the conjuncti [...]n of male and female. Plow. fol. 445. And that which by common con­sent is called Matrimony. But this cannot properly be termed a Law, because it is cor­porated and may be seen, for Laws are incor­porall, which discend and are introduced by the custome of Nations: But from this Law proceeds the Procreation, and Education of Children. Id. 303. & 304. And this Law of Nations is [...]olely common to man, as Religion towards God; that we may become assisting both to [...]ur Parents and Country, and repell Force [...]nd Injury. And from hence it comes, that [...]hatosever we do for the Defence of our own [...]odies is adjudged legall. Bract. l. 1. c. 6. num. 7. From the Law [...]f Nations also are servitudes, Id. eod. wars, di­ [...]tinct and divided Nations, severall distin­ [...]uisht Kingdomes and Dominions, Manumis­ [...]ons, setting of bounds to Land, the building [...]ogether, and neighbouring of houses, by [...]hich means we have our Cities, Borroughs, [...]nd Villiages. And generally to this Law of Nations may be referred, all manner of con­ [...]acts, and many other things. Id. l. 1. c. 5. num. 6, 7, 8.

2. The civill Law of England (usually [...]lled Common Law) is, [...], and [...]ath a threefold Acceptation. For first, it is [...]ken generally for that Law which the En­ [...]sh use, distinguished from that of the Ro­mans, [Page 4] and other Nations. Secondly, It is taken for these two Courts of Judicature, commonly called the Formerly Kings Bench. Upper Bench, and the Common Pleas. For when we say, the cognisance of any cause belongs to the Com­mon Law, we did not intend to any Court Baron, County Court, Pypowder Court, o [...] any such Court, but to one of these two Judi­catories, who do most strictly judge all cause [...] according to the rule of the Common Law, Doct. & Stu. l. 2. c. 5. Eract. l. 1. c. 5. num. 5. Although there be many cases in which, both in the Chancery and Fxchequer, Pro­cess are issued upon Originall. Writs, and judgment given according to common Law. Plow. fol. 9. And thirdly, It is taken for that Law which we tearm Statute Law Cook, l. 3. f [...]l. 86.

3. The Law of England according to som [...] hath six principall foundations, viz. The La [...] of Reason, Plo. f. 316. the Divine Law, the general cu­stomes, of the Kingdome, certain principle and Maximes, particular Customes and St [...] ­tutes. Doct. & Stu. l. 1. c. 4.

But if we shall contract these more close▪ we may say the Law of England hath tw [...] parts, Viz. Ancient Customes confirmed [...] the consent of the People, and [formerly▪ the Kings Oath: And Statutes which [...] enacted by Parliament, either as Supple­m [...]nts or amendments to the aforesayd Cu­stomes; both which are derived from th [...] Law of Nature and Nations, as all othe [...] Law [...]s whatsoever, which, are either iust [...] reasonable: And thus wee fitly divide [...] Lawes into written and unwritten. Fortc. c. 13

There be others which make our La [...] [Page 5] three fold. Viz. Common Law, Customes, and Statutes. Cook, pref. l. 4.

4. Our written Law, at least that which is in use, is contained in Statutes, Cook, l. 3. pres. which were not made according to the Princes plea­sure, but by the consent of the whole Realm called together [formerly] by the King, for this purpose, Fortes. c. 9. & 18 & Bract l. 1. c. 2. nu. 7. yet we as [heretofore] the Kings approbation was necessarily requi­red.

5. And in one p [...]rticuler the supream pow­ [...] wheresoever it rest, [as, in times, past the King] is above the Lawes for that it, may grant priviledges at pleasure as to single per­sons, as to Corporations and Colledges, provi­ded they become not injurious to a third per­son. F. n. B. fol. 28. In which if any douts arise, some say it self alone hath sole power of interpreting. Bract. l. 2. c. 16. num. 3. Brit. c. 63. Flet. l. 3. c. 14. Although others ascribe this power also unto the Judges, that such Charrers may receive construction according to the rules of law. Cook l. 1. Case Alton­woods.

6. But sometimes it falls out, cases arise which are neither provided for, by customes or Statutes sufficiently. And there the Judg­es do decide by like reasons, proceeding accor­cording to former Precedents: And for that purpose did many times meat together to ar­gue such cases. New terms of the Law, tit. Demurrer. But if any such disficulty, chances to happen which requires a higher search, then judgment is recited untill the next Parliament, by the councell of which Court it is determined. Bract. l. 1. c. 2. num. 7.

7. The unwritten Law consists of ancient customes of the Realme which are observed for Law Bract. l. 1. c. 3. num. 2. Littl. l. 2. c. 10. Cook'l. 4. fo. 21 and to the observation of which our [Page 6] Kings at their coronations were obliged, Fort. c. 34. by Oath; notwithstanding any of these cu­stomes may be altered or nulled by a Sta­tute. Doct. Stu. l. 2. c. 5. Plow. 465. A custome is either generall or par­ticuler. A generall custome is that which is observed through the whole Realme, and is more properly tearmed by us a common Right. Bract. l. 1. c. 1. nu. 2. &c. 3. num. 5. A particuler is that which is in force in divers particuler Counties, Cities, Burroughs, Villages, and Mannors. Cook l. 4. fol. 78. Doct. Stu. l. 1. c. 8. & 10. N. l. Entr. tit. Customes. Kitch. c. Cu­stomes, fol. 102 The publick Judicatories also of England have their customes likewise, which are observed as strictly as Lawes. Cook. l. 2. fol. 16. & 17. l. 4. f. 23, 24. & Stu. c. f. 93. But any custome which is repugnant either to Law or Reason is to be abolished. Plow. fol. 400.

8. Naturall Lawes or the Lawes of na­ture are immutable, Plow. 88. Elet. l. 1. c. 4. But the Law of Eng­land may by the consent of those, by whose advise it was first ordained to be altered. Bract. l. 1 c. 2. num. 7. Yet so as it do neither oppugne Reason, or the Law of Nature.

9. Now that Law concerning which we shall treat at present, belongs only to persons, things, or Actions, according to the Rights and Customes of England. And because Per­sons are the most worthy, as for whose sake all Lawes were ordained: Therefore we dis­course first of them, and of their states and Doct. Stu. l. 1. c. 19. Spe­ci [...]l. Justic. l. 3. conditions, which are various and diverse. Bract. l 1. c. 6 Flet. l. 1. c. 1.

Of the Rights of Persons.
TIT. III.

THe first and shortest division of Persons is this, That all men are either Free or Servants. Bract. l. 1. c. 6. Flet. l. 1. c. 1.

1. Now liberty is a naturall faculty in e­very one to doe what seemeth good to them, so it be neither against Law or Authority. Bract. eod. nu. 2. & l. 2. c. 19. num. 4. Or it may be defined an evacuation of servi­tude, because it is directly contrary unto it. Fl. l. 1. c. 2.

2. Servitude is a constitution of the Law of Nations; by which, contrary to nature, one is subiected to anothers power; and it is so called from Servando, and not Serviendo, for anciently Princes used to sel their Slaves and for that cause they did reserve, rather then kill them. Brit. f. 77. Wherefore when they were afterwards set at liberty, they were cal­led Manumissi, as being delivered out of the hand. Bract. eod. num. 3. Brit. c. 31. Spe. Just. c. 2. Flet. l. 1. c. 3.

3. Servants are either those which are borne so, or made so: Those which are borne so, come from Natives, Father and Mother, whether they be marryed or not (which is true both in Natives and them which are free Lit. l. 2. c. 11. whether they be in the power of their Lord, or out of his power: Also that is a Servant, whose Mother being a Native, is not marryed, notwithstanding that the Fa­ther [Page 8] be free: Because in that case, as a com­mon conception, it followes the condition of the Mother. Bract. eod. n. 4. Brit. d. c. 31. Flet. l. 1. c. 3. Spec. Just d. c. 2. And on the contrary, The Issue of a free Woman illegittimate, though begotten by a Servant: And it is borne free because in our Law it is reputed, Nullius fili­us. Bract. l. 1. c. 6. Instit. J [...]r. com. c 34. Those which are Servants borne, we terme Servants by Prescription; as those al­so may happily be called Free by prescrip­tion, who have gained their freedome through the negligence of their Lords. Bract. l. 1. c. 10. n. 13. Fl. l. 1. c. 7. & l. 4. c. 11. Dyer, fol. 60: n: 23.

4. Those which we call Natives are al­most the same with those whom the Romans called, Adscriptim gleba: namely those which served the Land, together with their Lords: And were mancipated and aliened with their Estates. Bract. l. 1. c. 6. These we tearme Villaines Re­gardants, Littl. l. 2. c. 11. Brit. c. 66. fol. 165. b. Bra. l. 1. c. 11. n. 1. 2. Spec. Just. l. 2. because they doe, Villis inservi­re. Of whom the Ancient Writers of our Lawes speak thus, A native Servant is such a one who is begotten by a Free man of a Wo­man, who is a Villaine, and lives in a Vil­lainage, whether they be marryed or not: But at this day, the Issue which is begotten by a Free man of a Native, is free. F. W. fol. 78. G.

5. And so on the contrary, if a Villaine goe in unto a Free woman, the Issue shall be free; but if it be begotten between the Vil­laines of severall Lords, then it is materiall to observe in whose Villainage it was borne, and whom it ought to follow, whether Fa­ther or Mother, according as they were ei­ther marryed or unmarryed, or according as they were either within, or from under the power of their Lords: Also if it be the [Page 9] Issue of a Free-man and a single Woman a Villaine the Issue shall be native, because it follows the condition of the Mother. But if of a she Villain, and a Free-man marrying out of the Villinage, and in Libero Thoro, it shall be reputed free, and see of a Free-woman and Free-man. Bract. l. 1. c. 6. n. 4. Brit. c. 31. Fl. l. 1. c. 3.

6. Those which are made Servants, are made so by captivity from the Law of nati­ons. For when Warrs began, captivity follow­ed. A free-man may also be made a villaine by Law namely by his own confession and acknowledgement made in one of the Formerly the King's Courts. supe­riour Courts Bract. l. 1. c. 6. n. 4. Brit. c. 31. & 43. Fle. l. 1. c. 3, 5. Lit. l. 2. c. 11. A Free-man may also be­come a Villain according to the Ancients. Bract. l. 1. c. 6. If being once manumissed he shall happen to be called back again for his ingratitude in­to servitude. But this by the means is uncon­tradicted, Fort. c. 46. Also a free-man may be made a Villain, if at first being made either Clark or Monk, he shall afterwards return to a Seculer life, because such a one ought to be restored to his Lord Brac. l. 1. c. 6. n. 4. Flet. l. 1. c. 3. Those which are made Vil­lains are called Villains in grosse, because they are of themselves without being appen­dant to any Estate. Lit. l. 2. c. 11 But all that are Vil­lains in grosse are not servants made. Be­cause there may be villain Issue between those which are our Captives, or by any other of this way become Servants. Which we soon as born like the Issue of Natives fall immediate­ly into the power of the Lord.

7. A Free-woman is not made a Villain by marrying with a Villain, and this is in fa­vour of Liberty against the common rule of [Page 10] our Law which speaks, the Wife to be the same flesh with the Husband. F. B. f. 78. G And if a Free-man marry a Villaine shee shall be free. Id. eod.

8. But it is reported to be an ancient cu­stome in Cornwall, that if a Freeman took a Villain to wife to a free-hold and free-bed if they have Issue two Daughters the one shall be free and the othe villain. Brac. l. 4. tract. 3. c. 13. n. 2.

9. There is a condition of servitude which is tearmed Substantialis. For whosoever is a Ser­vant is so a Servant as that he is nothing else Brac. l. 1. d c. 6. n. 3. Brit. c. 31. Flet. l. 1. c. 3. d.

10. And there is lastly a certain condition like to Servants which are yet ingenious and freeborn To wit, those whom we call Ap­prentices who are bound by their Parents or Governours to their Masters to learn Mer­chandising or other mechanik trades, by Co­venants. An. 5. Eliz c. 4. fol. 25. And these are in the power of their Masters during the time covenanted, and make gaines, not for themselves or Pa­rents, but for their Masters; unless it be other­wise covenanted for a Covenant prevailes a­bove Law Brac. l. 2. c. 15. & l. 5. tr. 2. c. 3. n. 7. & l 5 tr. 3. c. 9. n. 12. These oblige themselves in ma­ny things, and cheifly in these namely. That for the time covenanted they will truly and faithfully serve their Masters, conceale their secrets, willingly obey al their lawful and ho­nest commands. That they will not commit Fornication within their Masters House or without, that they will not goe away within their time, nor be absent day or night, that they will no ways damnifie him nor suffer him to be damnified in what they may help [Page 11] but that they will with all their might indea­vour to hinder his losse or else fore warn him with all possible dilligence, that they wil not inordinately imbezell their Masters Goods, nor lend them to others without his command or special licence, that they will not frequent Taverns unlesse to make bargaines, and therin to serve their Masters. That they will not to the preiudice of their Masters, play at cards or dice, that they will not intermarry or contract Matrimony with any woman du­ring the said Term, that they will not trade with their own or anothers Money without leave or license of their said Masters, but that they will well and truly behave themselves in word and deed, as a good and faithfull Ap­prentice ought to doe. Ne. b. Entr. Ver. coven. in Apprent:

Of Free-born.
TIT. IV.

A Free-man is naturall and free-born, he is said to be free born who is free so soon as born, whether born of two free-born, or of a man free-born and a woman made free, or of a single woman and a Freeman Fortes. c. 42 Flet. l. 2. c. 4. provided it be not within a villinage but in a free bed, notwithstanding it be out of the state of Ma­trimony. Vid. sup. tit. prox. par. 4. in fine.

1. So if of a Freewoman and a Villain out of Matrimony, and it is sufficient that the [Page 12] Mother be frce at any time namely either [...] the time of conception, parturition or in the intervall, notwithstanding that she become Villain afterwards because the mis-fortune of the Mother shall not prejudice the Infant in the Wombe. Brac. l. 1. c. 6. n. 5. Flet. l. 1. c. 4. Lit. l. 2. c. 11

2. So if a Free-man having Children doe in Court acknowledg himself a Villain. Those Children which he shall have after such ac­knowledgment shall be villaines, but those which he had before shall be free. Brac. ibi supra.

Of such as are made free.
TIT. V.

THose are said to be made free who are manumissed from a just Servitude. And they are called free men as being set free from servitude: Brac. l. 1. c. 6. n: 6 Flet. l. 1. 4. Manumission is a giving of liberty, that is a manifesting or declaring according to soule, because liberty which is by the Law of nature cannot be wholly taken away by the Law of nations, albeit it may be under a cloud. Brac. l. c. 5. n. 8. Flet. & sup.

1. Manumission is two-fold, namely, Ex­pressed or tacite and implyed. Dyer fo. 60 n. 23. and sa. 266 & 267. [...]. 11. Manumis­sion expressed is also double. One which is by writing, as when the Lord gives a Char­ter or instrument of Manumission to his Vil­lain. And another which is by fact and which was more used of old. As when the [Page 13] Lord in the presence of his Neighbours, laying his hand upon the head of his Villain shall say I will that this man be free, and ha­ving said this, letting him go out of his hands shall put him from him. Brac. l. 1. c. 5. l. 8. Jemn. Ju. ver. manum. Erit. c. 31. [...].

2. Lambert in his [...], fo. 226. Flet. l. 3. c, 13. and l. 4. c. 11. de­scribeth the ancient formes of Manumission thus. If any one will make his villain free let him with his right hand deliver him to the Sheriff in a full County, and he ought to quit claime unto him the Bond of servitude by manumission, and shew him free Gates and wayes and deliver him free Armes viz. lance and sword, and then he is free.

3. Manumission implyed is when a Lord shall binde himself by obligation to pay a cer­tain fum at a certain day to his Villaine, or shall bring his action against him for any thing which he may challenge as his own, or shall grant him a yearly Rent, or make a Feoff­ment unto him of Land, or by Deed grant him an Estate in Land for life or years, or fi­nally do any such action which we are not u­sed to do but to freemen. Brac. l. 4. tr. 1 c. 21. n. 3. f. 192. b. and c. 22 Brook Tit. vil­lena spec. Just. n l. 2. des Weiss.

If a Villain becomes a secular Preist, yet the Lord may claim him as his Servant and seise his goods. Spec. Just. cod. But if he shall enter into Religion it is otherwise, because there he is dead in the eye of the Law. Lit. c. 2. c. 11.

In what causes Manumission can­not be.
TIT. VI.

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

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

NEither is there amongst us any the least use of this Law, which for so many ages together, was by the Romans abrogated, as envious and cruell.

Of those which are in their owne, and those which are under the power of others.
TIT. VIII.

WEE have discoursed before of the state of Persons, now we are to make another division: And this is, that every one is either in their owne power, or in the pow­er of others. Brac. l. 1. c. 9. Fet. l. 1. c. 5.

1. In their owne power are all who are not subiect to others: But wee shall by conse­quence know those which are in their owne power, when we shall declare who are under subiection to others. Brac. ib. [...]. 2.

2. In the power of others are Servants; which power of Lords over their Vassalls is by the Law of nature, and this was some­times a power of life and death: But now it is more restrained by our civill Law, so that now power over life and lims, is onely an­nexed to the Supremacy; so that he who shall kill his Servant, shall be no lesse punished, then for killing a stranger, for it is very ne­cessary for the Common wealth, that no one doe abuse their owne: and in this they have Law against their Lords, that they may have Justice against them for life and limme, in case of any cruelty, or intollerable iniury ex­ercised by their Lords. mahemium Lit. l. 2. c. 11. As if you destroy [Page 16] them that they cannot enjoy their Wainage free and safe: But this is true onely in those Villaines which hold in Ancient Demesne of the Crowne; for it is otherwise of others: Because when ever the Lord shall please, he may take from his Villaine his Wainage, together with all his other Goods whatso­ever. Brac. l. 1. c. 9. n. 3. Flet. l. 1. c. 5.

3. And as to free-borne People also, some are in the power of others, as Wards under the protection of their Guardians or Freinds, or under the tuition of their Lords. Flet. l. 1. c. 9

Of Paternall Jurisdiction.
TIT. IX.

UNder the power of Parents are Children borne in lawfull Matrimony; so are Nephews and their Children, as to Grand­fathers and Great Grandfathers on the Fa­thers side. Brac. l. 1. c. 9. n. 4. and l. 2. c. 24. n. 4. and Stat. Mer. an. 20. H. 3. c. 9. Jerm. Jur. Ver. Bastardy Flet. l. 6. c, 1. But this is true, as to Nephews and their Children, onely where their Fa­thers dye, and they cannot by any meanes goe out of their protection. Brac. l. 1. c. 10. Brit. c. 119. fol. 270. Flet. l 1. c. 6.

1. Those which are not ligitimate are not reputed Children, as in case of Adultery and otherwise, nor those who are brought forth contrary to the form of man kinde: As Brac. l. 1. c. 6. n. 7. and l. 4. tr. 3, c. 13. n. 2. Flet. l. 1. c. 5. and l. 4. c. 17. and l. 6. c. 56. Monsters and Prodigies in nature, but those which are irregular only in members, as ha­ving six fingers, or four, or only one, shall not for that be esteemed illegitimate.

[Page 17] 2. But we are to observe that, that ancient Jurisdiction which the Romans exercised o­ver their Children, Institut. Im­periales, cod. tit. is much more qualifi­ed with us. For the English only take the pro­fits of the Labours of those Children which are under the age of twenty one years: And that in such manner, that if they live at home with them they may do their own notwith­standing that they are retained in their pa­rents business, and that they finde them dyet and cloathing. But if they be put forth to learn any other Arts, their Masters have the sole benefit of their work, unless any conditi­on forbid, for that a condition may prevail even against Law. Bract. l. 2. c. 5.

3. Whatsoever Estate wh [...]ther adventiti­ous or bequeathed especially Land, shall fall unto Children, the Father shall not so much as have the profits of it, but shall be liable to give an account to his Childe so soon as it shall come of age. But that I may explainit, this Parentall power, relisheth more of that love and respect which Children bare to Pa­rents as a principle infused and instilled by the Law of Religion and nature rather then of any compulsion of force by which the Law obligeth. Cook, l. 3. Casu Radclif, fol. 37, 38. for our Decalogue, which the Romans wanted, inculcates this respect with promise of divine Benediction. And the only curb with which Parents restrain those that become refractory is the power of disinheri­ting which is not often times threatned in vain.

4. Now the Guardianship of wards is dou­ble, one by vertue of the common, the o­other [Page 18] of the Statute Law, Cook ubi sup. And it is true The Common Law gives an action of tre [...] ­pass to the Father against him that shall take away his Son and Heire, which Action [...] good in reason because the Marriage of the Son belongs to him. Bract. tit. Tresp. n. 92.

5. Matrimony is a conjunction of m [...] and woman comprehending society of the life individuall. Bract. l. 1. tr. 5. c. 25. n. 1. c. 3. n. 8. & l. 2. c. 14. Brit. c. 107. Flet. l. 5. c. 25. And so strict is this co [...] ­iunction in our Law, that man and wife are reputed but one person. Brook Tit. villena. 39. & Bar. & Feme. Doct. & Stu. c. 1. c. 24. Perk. 217 As but one flesh it the divine. Gen. 2. 24. Fl. l. 9. c. 19.

6. The Bishop hath determined by the C [...] ­non and Statute Law concerning Legitim [...] ­cy and Illegitimacy, and make, cerrifica [...] thereof either to the supream power or the Justices as often as is required. Lib. Intr. tit. Bast. f. 104. Brook eod. tit. Bract. l. 5. tr. 5. c. 6. n. 3. &c. 19. n. 2. & a. 25. cod. 3. sta. 2. ca. uni.

7. According to the Law and custome [...] England, that Issue which is born before mar­riage is a Bastard. But he which marries [...] single woman who is with Child by himself o [...] any other, makes her Issue ligitimate al­though it be born immediately after marriage for in this case marriage is a testimony where the Child is. Fle. l. 1. c. 5. &c. 14, 15. But it is to be distinguished in the case of him that marries a Widdow with Child, viz. Whither she be apparently Glan. l. 7. c. 15. 1 Brac. l. 5. tr. c. 19. n. 2. & an. 20 H. 3. with Child at the time of Marriage or whe­ther it be doubtfull. For in the first case it shall be [...]eputed the Issue of the former hus­band in the other of the latter. Term. Jur. tit. Bastardy.

Of Marriages.
TIT. X.

A Wife by the Law of England is under the power and Jurisdiction of her hus­band, Dyer f. 79. n. 51. Plow. f. 307. and so in duty tied to him that if she shall be conscious of any fact committed by her husband, she shall not be punished for concealing it, Glan. l. 11. c. 3. Bract l. 1. c. 6. n. 2. & l. 2 c. 15. & l. 5. tr. 5. c. 17. n. 2. But she is obliged to hin­der as much as in her lieth, Flet. l. 1. c. 38. and accor­ding to our ancient Authors, if stolne goods be found under her lock and key, she shall be esteemed equally guilty with her husband. And so also if the things stolne be found in her hands, Flet. ibid. but at this day the Law, is so much altered, as it seems, that if the Wife commit Thest by the instigation of her Hus­band she shall not be guilty of Felony. Fitz. tit. Crowne, 99. Brook, ib. 108.

1. And in the same Bond is that woman ob­liged which shal marry a Villain. For if a wo­man who is a Coheir marry a Villain she can­not claim her Partition, before her time i. e. before the death of her Husband. Brac. l. 5. tr. 5. c. 25. n. 2. Fl. l. 4. c. 12. n. 1. In a word whensoever the Husband during Co­verture shall dispose of the Lands of his Wife except only where a Fine is levied, she super­viving may after his death, dissolve such Con­tracts as done at such a time when as she be­ing under Coverture was so tied by the Law that she could not contradict him, Plo. 265. & 32 H. S. c. 2 [...] nay ac­cording [Page 20] to some of our Ancients a Wife is so far obliged to obey her Husband, that if the Husband shall sell her Joynture against her will she shall not recover her Dower against the Vendees after his decease, Glan. l. 2. c. 4. for that she ought to rest silent, and obey her Hus­band patiently who disposed in that manner of her Dower as to maintain her life. But this Law is long time out of date Lit. l. 1. c. 4..

2. Contracts of Matrimony may be entred into at the age of seven years Pract. l. 1. c. 36. nu. 3. In­stit. c. 24. Dyer 143. n. 56. but they are not to intermarry untill a fit age, viz. the man at fourteen and the woman at twelve years old Brac. ib. In­stit. ib. and not in any degree of consan­guinity or affinity, which is forbidden by the Leviticall Law, 32 H. 8. c. 8. and by our Law if a wo­man entermarry at nine years of age and sur­vive her Husband, she shall have her Dower because at that age she is defined to be cap­able of it. Lit. l. 1. c. 5 And this is equally a rule both for Villains and those that are free, for Vil­lains may enter marriage lawfully In this it followes the Common Law. but they are punishable if they do without license of their Lord. Lit. l. 2. c. 11.

3. The consent of Parents is not so essen­tially necessary with us that for default there­in a matrimoniall Contract made between them that are free being, De praesenti, should be nulled, for in this we follow the Pontificall Law, Ca. cum apud 23. ext. des. onsa & ma­trim. and this some affirm true in the Ci­vill Law also. Cujacius in Julii Pauli re­ceptas senten­tias, l. 2. c. 19. quem etiam vid. l. observat. 3: c. 5. However Tribonianus in that long and wearisome worke of his indige­sling the Law hath happened to omit it, for here the words of Paulus are expressed For those who are under the power of Fathers, [Page 21] they ought not by Law to contract Matrimo­ny without their consent, but being once con­tracted it cannot possibly be dissolved. For that the regard which is had to the publick good is to be preferred to private Convenien­ty. l. z. recept-semen. c. 19. de nuptiis.

4. And yet Marriages are not so absolutely [...]ee with us for they which hold in Fee of the King in Capite, that is in right of his Crown, [...]r of any Honour or Mannor of his; or of a [...]ommon personally Knights Service, if at the [...]ay of the Ancestors death the party be with­ [...] age and unmarried he cannot without pe­ [...]alty refuse a Wife tendred unto him by the [...]ord of the Fee: For in such case he shall [...] unto him the value of the marriage: If [...] be that the Lord doe tender unto him [...]hilest he is within age a wife who is fit for [...]im without disparity or (as our law expresseth [...]) Disparagment. Brit. c. 66. 2 c H. 3. c. 7. F. B. f. 141, 174 Glan. l. 7. c. 12. Lit. l. 2. c. 4. Flet. l. 1. c. 13. yet if the Lord shal tender one, some are of opinion that he may not­ [...]ithstanding claim the value of the Heir when [...] comes to age. Dyer, f 255 260. But here it is to be di­ [...]inguished whether the ward refuse the Wife [...]ndred to him by his Guardian, and remain [...]nmarried till he comes of age, or whither [...]fter such refusall, he shall yet marry another [...] in the first case he shall only be compelled [...] pay the value of the marriage simply, but [...] the later he shall pay it double. F. B. 141. Lit. l. 2. c. 4. Stat. Merc. c. 6. West. 1. c. 12.

5. And this is true also of womenwho are un­ [...]er the age of 14. at the death of their Ance­ [...]ors and unmarried for they also are bound ther to marry or pray the value to their uardian if within two years after fourteen [Page 22] be compleated, he shall tender them a fitting husband, Westm. 1. c. 12. Brit. c. 67. Brac. l. 2. c. 37. n. 6. Flet. l. 1. c. 13. but where the Guardian makes no tender, the Law is the same as in the case of men.

6. Now disparagement is where the Guar­dian shal tender to his ward a woman wanting a Foot or a hand, one that is maimed, imper­fect or deformed, or that hath an infectio [...]s, or contagious disease: One that is old and pa [...] hope of Issue Lit. l. 2. c. 4 or in case the Guardian shal tender, a Villain, Burger, or one that is mean­ly discended to her that is, Noble, Flet. l. 1. c. 13.

7. If there be many Lords of whom the Fee is holden, the King (if he be one) shal [...] have the wardship of the Heir. But if the be all common persons, he shall be preferre [...] to whom the Ancestors did first Homage for the marriage will not admit partiti [...] But if this cannot appear, he shall be pre­ferred who first enfeoffed the Ancestors, an [...] if this cannot be proved, then that Lord wh [...] shall gain the possession first of the ward Flet. l. 1. c. 13.

8. If the Lord of the Fee shall marry [...] ward made within the age of fourteen year the ward so soone as he shall come to that age may discent and leave her, which is also tr [...] in Females who by consent of their Guard [...] ­ans shall marry within the age of twelve Lit. l. 2. c. 4. and here both Sexes have the same La [...] that after marriage so had, under age by de­signation of the Guardian. They are no mor [...] obliged to his arbitrement the bond of Matr [...] ­mony being dissolved by death. Brac. l. 2. c. 37. n. 6. Lit. l. 2. c. 4. And th [...] by an inequality of marrying them, th [...] Guardian shall loose his ward, and shall liable [Page 23] to satisfie the freinds of the ward so disparaged for so great a damage Brit. c. 67. Lit. l. 2. c. 4. Instit. Jur. com. 24.

9. Heretofore when an Heir female was at [...]ge, and held of divers Lords in Fee, it was sufficient for her in marrying to require the [...]ssent of the next capitall Lord to whom her Ancestors had done legiance, Eract. d. l. 2. c. 37. n. 6. but at this day she that is of age, is not obliged to ask the con [...]ent of her Lord to marry Brook, tit. Guard. 7.

10. If the Heir of Tenant in Chivalry not being of that age at which by the Law he may consent to marry, shall marry in his Fathers life time: his Father being dead, the Lord of the Fee shall have a Writ of Ra­vishment, because it is in the power of the Heir to repudiate his wife when he shall come to that full age, F. B. 143. m. and a woman who hol­deth of the King in this manner, being thus married; is at her own election, when she shall come to age whether she will adhere to the former marriage or accept of such a Husband as the King shall tender, 17 E. 2. Stat 1. c. 5.

11. Those Widdows also which are termed the Kings Widdowes do make Oath not to enter marriage again without the Kings con­sent. And if they do otherwise the King may by distress seise himself of those lands and re­nements which they have in Dower untill they or their Husbands shall pay such Fines as the King at pleasure shall impose. Slan. P [...]er. c. 4. Glan. l. 7. c. 12. Flet. l. 7. c. 23. F. B. 263 & 174. 17 E. 2. 1. Mag­na charta also doth affirm that common per­sons may exercise the same power over their Widdows c. 7. And there is this reason given, least the Kings Tenants should enter marri­age with his capitall enemies. Fl. l. 1. c. 13

[Page 24] 12. Whosoever shall steal or draw away anothers ward although he restore the ward afterwards unmarried or satisfie for the mar­riage, shall for such trespass suffer imprison­ment for two years. And if he doth not re­store the said ward but marries him or her, and is not able to satisfie for the same he shal abiure the Realm or be imprisoned during life, Flet. l. 1. c. 13.

13. If any person above the age of fourteen shall draw away an unmarried woman under sixteen without consent of Parents, or at least those who had the Gard of her, he shall suf­fer two years imprisonment without Bail or at least be fined for his said offence, accor­ding to discretion of the Star chamber This power is now in the Chancery. But if he shall defile her being so stolne a­way or any way contract marriage with her against the consent of her Parents, or Guardi­ans he shall be imprisoned for five years or much according to the discretion of the said Court. And if such woman being above twelve and under sixteen shall by her own consent marry with such ravisher she shall forfeit all and singuler those Lands, Tene­ments and Hereditaments which at the time of such consent given, she had either in possession, Reversion or Remainder, 4 & 5 Phi. & Mar. c. 8. Cook, l. 3. Nut. Case, f. 39.

14. Villaines are not to marry without consent of their Patrons. Lit. l. 2. c. 11. Also if a free­man shall take away ones native in marriage without the consent of her Lord, although the Lord cannot take her from him, yet he may have his action for the Ravishment of her. Idem ibid.

[Page 25] 15. Women that marry noble men shall have the appellation and priviledges of no­ble persons, for that dignity they derive from their husbands untill they shall again marry with common persons Idem ibid. for by marrying they make themselves the same flesh with their Husbands 20 H. 6. c. 6 but if it shal be demanded whether a woman more noble marrying with a man lesse noble or a common person may free her Chaplaines for non-residency accor­ding to the Statute in that case provided, we 21 H. 8. c. 13. cannot answer without distinguishing. For second marriages will not prejudice those which shee had during widdowhood. But she cannot impart the same priviledge to them, which she shall have after the second marrying, because her nobility is extinct. Cook, l. 4. Actons Case, f. 117. Notwithstanding, that it seems to be other­wise with those which are born noble and derive not their nobility from marriage. Id. ibid. for that such who draw their nobility from their Ancestors are more esteemed and hono­red with us then they which take it onely from their Husbands.

16. If any come together against the le­viticall Law we neither understand them man and Wife, nor do we allow of their con­tracts, marriage or Dower. Their Issue gai­ning no other esteem then to be termed na­turall, 32 H. 8. c. 38. Those only are said to be divorced by our Lawyers, whose Marriages are nul'd for that there may be a seperation, a mensa & thoro, and yet the Matrimonial bond remain unbroken. Term. Jur. verl. Divorce.

17. Those which are unlawfully begot­ten [Page 26] cannot possibly be made ligitimate. But they are often made capable of Preist­hood or exercising sacred functions by dispen­sation, Bract. l. A spurious Issue may by silence and patience be rendred legitimate; as in case a Wife shall conceive by another man be­sides her Husband, notwithstanding that it be apparent, yet if the husband entertain such Issue in his Family and bring it up and call it as his Child, he makes it his owne lawful Son and Heir, which is equally true if he do not so call it expresly if he do not remove it and renounce it, nor is it materiall whether the Husband be ignorant or knowing of it, or whether he doubt, for it shall be reputed his lawfull Heir because born of his Wife, so long as it may be presumed that her Husband begot it. And this may be said also of a sup­posed Issue, for that often a common opini­on passeth for a truth. Bract. d. l. 2. c. 27. n. 4, 5.

18. There are with us two consequences and effects of Marriage. The first, that all moveable Goods (which by us are tearmed personall Chattells) which the Wife brings with her do presently passe into the husbands Patrimony, without any distinction being thereby (as it were swallowed up, nor can a­ny thing be reassumed by the Wife surviving but her womans apparell; and so of imovea­bles and realls if allened by the Husband in his life time, but for those which are not ali­enated, he being dead they shall return to the Wife, Plow. 418. 4 [...]9. but if a Wife being Executrix or Administratrix to a former Husband, mar­ries a second and survives him, she shall have [Page 27] all those Goods both personall and and re­all which she brought unto him as possessed of by reason of that relation and office and which are not alienated by her second hus­band, restored unto her without diminuti­on. Vid. infra. tit. 11. par. 7.

The other consequence of Marriage is that lawfull or reasonable Dower under which notion she shall have the third part of all such Lands and Tenements which her Husband was seised of in Fee for her life Flet. l. 5. c. 22. & 27. An. 3. & 6 Id. 6. in provis. Dyer 140. but in case the husband shall happen to be attainted of treason or felony there the wife shall loose her Dower, 1 Jac. ses. 1. c. 11. & 12.

Of Adoptions.
TIT. XI. Bract. l. 2 [...] c. 29. n. 4, 5.

BRacton in the place before mentioned calls silence and Patience in the case of adulterate Issue, adoption which creates such Children being in our power, free and legitimate. I have also heard of that kind of Adoption amongst us which the Ro­mans used. But this seemes rather to be by private will and agreement of the persons adopting and adopted, then by any Law; for this is at our own election that we may give Lands purchased by our selves or which we have by discent, unlesse they be given con­ditionally or (as we tearm it) by intail, to [Page 28] whomsoever we please, whether to one of our Kindred, or whether it be to a stranger with­out having any relation to those Children which we have, whence it is apparent, that the custome which the Romans had of Adop­tion was either never received amongst us or else that it is long since, as with the French, wholy extinct. V. Equina­rium Baronem in particula po­steriori suorum comment. super Instit hoc Tit.

How and by what means Paternall Jurisdiction is dissolved.
TIT. XII.

WE have spoken before how paternall Jurisdiction is occasioned and consti­tuted, now we are to declare how it is dissolv­ed and taken away: And we must know that this is done three manner of waies. By na­turall death, by civill death, and by dignity or honour. For if the Father in whose power the Son is, dieth, the Son remains at his own disposing although sometime in the custody of a Lord or the care of Freinds or Parents. But the Grandfather on the Fathers side be­ing dead, the grandchildren are not in their own power; but remain under the Jurisdiction of the Father, if he survive the Grandfather, and do not at all go out of his power as in the case of a Emancipation, or Digni­ty. Bract. l. 1. c. 10. Flet. l. 1. c. 7.

1. So by a civill death, as in case the Fa­ther [Page 29] be condemned for Felony committed, or exiled. But if he be banished but for a time he shal retain his Children under his power, because whatever is his he shall injoy at his coming back, Id. ibid.

2. Paternall Jurisdiction is dissolved also by Emancipation: As if a man discharge his Son from his family with any part of his In­heritance, as it was the custome in former times, Id. eod. for this kind is a kind of a civill death of the Son, as is the entrance into Re­ligion. 4 H. 4. c. 17

3. This power is dissolved also by dignity, as in a case the Son be made a Bishop. Bract. ubi supra.

4. But as this Bond of paternall power is not so strict with us as it was with the Ro­mans, so neither is the releasing of it by E­mancipation so usuall: For I finde nothing in our Lawes, which hinders a son or daugh­ter from disposing of themselves, even a­gainst their Fathers consent so soon as they shall come to the age of one and twenty years. It is most certain that they may then enter Marriage or Contract with any one, and be no lesse obliged by a Contract then [...]f they were threescore. For this age with us is perfect and full maturity. Bract. l. 1. c. 10. n. 2. Lit. l. 2. c. 4.

Of Wardships.
TIT. XIII.

OF those which are under the power or Jurisdiction of others, there are some which are in the custody or protection of Lords, some are under the care of Parents, and Friends, and some are not obliged by either, as those which are at full age. Bract. l. 1. c. 10. num. 2.

1. The word protection, is not so fre­quent with us as Custody. For as we have many Species of Law from the Normans, so have we words also▪ now they call him [...] Guardian which the Romans tearmed Tu­tor or which was rather meant and compre­hended under their appellations of Tutor and Curator together. In which we imitate them in calling them Guardians

2. These Guardians are appointed some­times by the Fathers will, sometimes by the Law, and sometimes by the Magistrate. Fo [...] where the Father hath only an Estate of Mo­ney or Chattells to leave to those Children which being under age are in his power, he may commit the care and Government [...] them together, with the Legacies to any [...] his Friends, Cook, l. 3. case Ratcl. f. 37, 38. he also hath the like power with a Father who shall infeost an Infant i [...] Lawes, for he may commit the Custody [...] him according to his pleasure to whom [...] [Page 31] pleaseth, Flet. l. 1. c. [...] and what is here mentioned of Children born may be understood of Post humi.

Who they are that by Testament may appear Guardians.
TIT. XIIII.

WHosoever hath a Free administra­tion and power of dispensing his Goods may, constitute a Guardian by his will, provided he be of per­fect age and sound memory, Glan. l. 7. c. 6. and this also may be performed by a Woman, Brit. c. 35. But if an Infant or one that is not Compos mentis be ordained, he cannot be admitted untill the defect be removed. Swinb. part 3. Sect. 10.

1. A man may constitute his own Villain or Native Guardian over his Children, or anothers with the permission of his Lord, but it is worthy consideration whether a Vil­laine by this Act, shall gain his Liber­ty. Sus. de li­bertinis, tit. 5.

2. One may also constitute his Appren­tice Brook, Te­stament. 8. whosoever may be an Executor may also be a Guardian. Swinb. part 3. Sect. 10.

Of the lawfull Guardian-ship of Kindred.
TIT. XV.

WEE have spoken allready of Guar­dians which are appointed by Law and this is by reason of an Estate in Fee which shall discend to Infants by right of In­heritance: But if Tenant in Socage dies, the next Heir whether Son or Daughter, if an Infant shall be in the custody of the next of Kinn on that side to whom the Inheritance cannot discend, for examples sake, if the E­state come by the Fathers side, then the Mo­ther, or if she be dead, the next of Kinn on her side shall have the custody of the Infant. If by the Mothers side, then the next of kinn on the Fathers side Glan. l. 7. c. 11. Lit. l. 2. c. 5. Bract. l. 2. c. 77. n. 6. 52 H. 3. c. 17. Broo. tit. Guar. & prochein. am. 11, 12, 13. Plowd. 295. and this is the reason of the Law. Because the Infants may be in less danger in their hands, to whom their death is least advantagious. Fort. c. 44. & 45. so that none that is a Copar [...]ner in Socage ought to be in the Gard or Custody of her Copar [...]ner or her Husband but of some of her Parents, and if any one shall buy the Gard of the Lands or the marriage of the Daughters and shall take any of them to Wife, he is presently suspe­cted and shall by the Law loose the Gard of the Body, and the marriage of the rest by reason of the suspition. Fle. l. 1. c. 9

[Page 33] 1. But if two Brothers purchase Land [...] them, their Heires, the elder if at age [...]ay have the Gard of the younger, being [...] Infant provided they be both legitimate. Brit. c. 35. fol. 92.

2. And these Heires according to the [...]cients, go out of Wardship at fifteen years [...] age. Glan. l. 7. c. 9. Bract. l. 2. c. 36. n 2. Flet. l. 1. c. 11. But according to the moderne [...]actise at fourteen, Lit. l. 2. c. 5 Doct. & Stu. c. 7 fol. 141. F. B. 118. in regard the Law [...]pposeth that at this age they are able to [...]rform those things which belong to Hus­ [...]ndry. But Tenants by the custome called [...]avelkinde, being sixteen years old com­ [...]eat, may alien their Lands by Feostment; [...]thout license from their Guardians, Dyer, fo. 301. n. 41. Fitzh. Custome 11. Brook, ibid. 50.

3. So also Tenants in Burgage, who are [...]fants; their Father or Ancestor being dead [...] committed, for the same reason which [...]enant in Socage are, to the Custody of [...]eir Kindred. From whence they are freed [...] soon as they shall be able discreetly to [...]unt Money, and measure Cloth, and per­ [...]rm other such like businesses. But in this [...]se the certain time is not defined but is ad­ [...]dged by the discretion and maturity of the [...]eires, Bract ubi. sup. Flet. l. 1. c. 11.

4. A Woman is supposed to be of perfect [...]ge in Socage in all cases so soon as she is a­ [...]e to know how to dispose of her house, and [...] do those things which belong to the dis­ [...]sing and ordering her Family and is able [...] understand what appertains to Cone and [...]ey, which cannot be before she be fourteen [...] fifteen years old, because this age requires [...]der and judgment. Bract. l. 2. c. 39. n. 2.

[Page 34] 5. A female Heir was according to som [...] ancient writers judged equall with a mal [...] as for years according to the diversities [...] Tenures, viz. That she should have the sam [...] age in Burgage and Socage, as a male, [...] wit, fifteen years. And in Chivalry likewi [...] as the male, viz. 21. And that then [...] Wardship should end. But according t [...] others, a Woman is said to be at full age i [...] Chivalrie at fifteen, for then they say, she able to order her house, and to marry a Hu [...] ­band; who shall be able to perform Servic [...] for her, Bract. l. 2. c. 37. n. 3. But our moderns define other­wise, and here they put a difference whe­ther she be fourteen years old at the death o [...] her Ancestor or not, for if she be, she d [...] immediately receive the profits of her Lan [...] otherwise not till she comes to sixteen. Instit. Jur. com. c. 24. Lit. 2. c. 4.

6. Guardian in Socage shall give an a [...] ­count of his Office to his ward when t [...] Wardship is out. Lit. l. 2. c. F. B. 118, 119 262. Flet. l. 1. c. 12. But he may commit t [...] Custody of his Ward to a stranger and h [...] Grant shall be good. F. B. 143. P.

Of Disfranchisement, or Demi­nutio capitis.
TIT. XVI.

THat which the Romans called Demin [...] coepitis, and devided into three kindes, [Page 35] [...] so distinguished by the English. Notwith­ [...]nding that we do tacitely acknowledge it [...]uble by our Lawes. That which they tear­ [...]ed the least we wholy omit, for those which [...] emancipated by their Fathers, do not [...]ose the Right of their former family. But [...] they may (at least making a partition [...] Goods and Chattells) be received as to [...] successiion or Inheritance of an Intestate [...] those who are adopted by others have [...] rights of their new faculty, either [...]on the sole agreement or the expressed [...]urtesy of those by whom they are adopted [...]thout assistance of the Law, required or [...]pected. Sup. tit. A­dopt. 17.

1. Those who are, Servi paenae, namely [...]ose which have sentence for Treason or [...]lony loose all that can be lost: Not only [...]eir Freedome and Liberty but even all [...]at they have, and their lives also, Stan. placit. Coro. l. 2. & Prerog. c. 44. Nor [...]ve they other Successor then the Exche­ [...]er or the Lord of the Mannor: as we shal [...]ew else where, See the 4. Book, tit. of Pub. Ju. and therefore we may [...]th reason call this the greatest Disfran­ [...]isement or Capitis diminutio.

2. And although the ancient Law which [...]nished, Brac. l. 3. tract. 2. c. 16. Brit. c. 16. those who took Sanctuary for reason be abrogated, 22 H. 8. c. 14. & 36 H. 8. c. 13. & 28 H. 8. c. 7. & 32 H. 8. c. 12. & 33 H. 8. c. 15. 1 E. 6. c. 12. & 2 E. 6. c. 2. &c. 33. & 5 E. 6. c. 10. yet at this day [...]ere are certain crimes which are punished [...]th abjuration, Ch. de For­rest. c. 10. & 13 Ed. 1. c. 35. & 25 H. 8. c. 14. 35 Eliz. c. 2. but those who undergo [...]is penalty seem to undergo the lesser dis­ [...]anchisement or that which the Romans [...]lled, Medium capitis diminutionem.

3. That which was tearmed Cognationis jus, [...] the lesser and more inferiour Capitis [Page 36] diminutio, and seems to be wholy taken a­way with us, for those who abjure the Real [...] are wholy thrust out of protection, Bract. & Brit. ut supra. an [...] those who are out of the Allegiance of the supream power of England, have nothing i [...] England. Bract. l. 5. c. 23. n. 3.

Of the lawfull Guardianship of Lords or Patrons.
TIT. XVII.

OUR Lawes do not decree any thi [...] that I know concerning that Patron [...] Tutela, which the Roman Law mentions. [...] we have another kinde of Patronage in re [...] ­pect of the Fee which we possess, and these [...] tearmed the Lords of the Fee. Prat [...]i lexicon verb. Patronus. And the [...] are very few Infants that succed to good E­states, who escape their Wardship and C [...] ­stody. For as there is none with us (except [...] Crown) who are seised of their Estates an [...] Tenements in a freer or larger Title th [...] Fee, so is there scarce any Fee less worth▪ But that it is bound to the Lord or a Patro [...] by Knights Service; now those things whic [...] are proper to this Service, are Gard, Ma [...] ­age, and Releife. Lit. l. 2. c. 4

1. An Infant Heir, who succeeds his A [...] ­cestors, F. B. 262. Fletl. 1. c. 11. Dyer, 362. Gla. l. 7. c. 9. Bract. l. 2. c. 32. Brit. c. 66. Lit. l. 2. c. 4. in Knights Service remaines un­der the Guard and Custody of his Lord u [...] ­till he come to perfect age. For before th [...] [Page 37] age he is not adjudged capable of those war­ [...]ick accomplishments requisite for a Knight [...]nd due to his Lord by reason of his Te­ [...]ure, notwithstanding that it falls out some­ [...]imes that age being dispensed with some are elected into the order of Knighthood before [...]hey be compleat one and twenty years old: But our Law supposeth these to be able to do those Offices due to the Lord of the Fee, wherefore they are out of the custody though Infants. Brook, tit. Gard. 42. & 72 Fulbeck in pa­ral. f. 29. Plow 267.

2. And this right of custody springs from [...]his reason, that since he who holds by Knights Service is obliged according to the [...]greement at the first investing of the Estate [...]o follow his Lord as a Knight in the Kings Wars. It is presumed that no man will be more carefull in training up the Infant in [...]eats of Armes then the Lord himself. Fort. c. 44. Polid. Virg. l. 16.

3. But if such an Heir be female she re­maines in custody according to the Ancients Bract. l. 2. c. 37. n. 3. but till fifteen, and according to our mo­derns no longer then sixteen years of age Lit. l. 2. c. 4 [...]or no sooner doe they come to that age, but they are immediately presumed to be able to govern their house, and to marry such a Hus­band that shall be capable of doing the Ser­vice due to the Lord of the Fee. Bract. & Lit. ibid. But if shee be compleat fourteen years old at the death of her Ancestor, neither her Body or Land shall fall under the Custody of the Lord. Lit. l. 2. c. 4. Mert. c. 6. West. 1. c 22. Instit. Jur. Com. c. 24. Br. tit. Gard. 7.

4. But if in this case it come in question, whether the Heir be an infant or not, he shal [Page 38] remain in custody untill it be determined▪ Brac. l. 2. c. 37. Brit. c. 66 fol. 167. b.

5. If a Knights Fee discend to an Heir [...] the Mothers side, the Father living shal [...] have the Guard of his Body, and the Lord of the Land, for it is a Maxim, that no one as to his Person shall fall into the custody of the Lord, his Father living. Lit. l. 2. c. 4.

6. If Lands discend to a Wife who after Issue had by her Husband dieth. So that the Husband for default of having possession [...] the Lands in the life of his Wife cannot be Tenant by the courtesie of England. In this case the Issue, unlesse it be Heir to the Fathe [...] as being his eldest Son, shall be in custody. And if such Issue be a female and an Infant, at the death of her Mother, she shall remain: If her Father have a Son living, in custody notwithstanding her Father be aliv [...]. F. B. fol. 143.

7. Lord of a Knights Fee, may transfer the gard of his Tenant to another. From whence there ariseth this distinction of Guardian i [...] Law, and Guardian in Tail. Guardian i [...] Law is the Lord himself. Guardian in Tail is he to whom the Lord hath granted the the Custody of his Heir, Bract. l. 2. c. 37. n. 3. Lit. l. 2. c. 4.

8. There is also a Guardian simply and originally so called, and a Guardian by acci­dent, from the cause of custody, Originally is he who in right of his Fee hath the custo­dy of his Tenant. Causarily, is he who for that he hath the custody of his own Tenant being yet an Infant hath upon that score the custody of another who is Tenant to his [Page 39] Ward, F. B. fol. 139. d. Dyer, 123 n. 38. For an Infant cannot be Guardi­ [...] of an Infant. Flet. l. 1. c. 11.

[...] ▪ When there is an Heir male or female [...]ho hath many capitall Lords, they cannot [...] have the custody of the Heir, and there­ [...]re one must be preferred before the rest: [...]nd that is he who first infeoffed the Tenant [...] Knights Service, the rest shall only be [...]rmitted, the custody of the Lands which [...]e holden of their Fee. Bract. l. 2. c. 37. n. 4, &c. Stamf. Prerog. c. 2.

10. But if any Heir hold of the King in, [...]pite by Knights Service, whether he hath [...]her Lords or not, the King shall be prefer­ [...]d before the rest, to the custody of the [...]eir; and that notwithstanding, Priority or [...]osteriority of infeoffing. For that the King [...]ath no equall or superiour in his Realme Glan. l. 7. c. 10. Bract. & Stam. ut sup.

11. A Ward who is once freed from the [...]stody of his Guardian [as by marrying or [...]ontracting Matrimony with his consent] [...]all not return again into the custody. And [...]at notwithstanding he be under fourteen [...]ears of age, or afterwards that he shall mar­ [...]y before 21. Bract. l. 2. c. 38. n. 1. Lit. l. 2. c 4.

12. If there shall be many Daughters Co­ [...]cites who hold by Knights Service: They [...]hall be all under the custody of the capitall [...]ord, and none under the custody of the Mother. Bract. l. 2. c. 37. n. 6.

Of the Legall Guardianship of Parents.
TIT. XVIII.

THE Father is preferred before all o­thers, to the custody of his eldest So [...] ▪ For if an Inheritance fall to such an Infa [...] who hath a Father living; notwithstanding that the Lands, if they be holden in Knight Service be in the custody of the Lord of the Fee. Yet the Body of the Heir shall remai [...] with his Father. Lit. l. 2. c. 4 Cook, l. 3. Case Rat. fo.. 37.

1. So also, the Mother of an Infant [...] holds in Socage, shall have the Custody [...] the Body and Lands of the Heire before a [...] kindred, either of the Fathers side or Moth [...] side.

Of Fiduciary Guardianships.
TIT. XIX.

THat Tutela Fiduciaria, which the Roman [...] imposed upon the male children, thei [...] Parents being dead and upon the Childre [...] of Patrons, our Ancestors seem wholly [...] have neglected. Concerning the first, We [...] [Page 41] have nothing determined save that which we mentioned before of the legall Guardian­ship of Kindred. But as for the other, they do not transfer it upon the Children of the Pa­trons but upon the Executors rather Lit. l. 1. c. 5 for they reckon the custody of Wards, among Chattells reall, N. Ter. ver. Chattels. Flet. l. 1. c. 11. and therefore if the Pa­tron or Lord of the Fee do not demise them by his last will, they are transmitted by the Common Law to the Executors of his last Will.

Of the Attilian Tutorship which is appointed by the Lex Julia Titia.
TIT. XX.

WEE have sometimes Tutores Dativi, or deputed Guardians amongst us. For in case the Mother being dead the Father dy intestate and leaves Children under age, who have no Fee to succeed un­to; it often happens that the Ecclesiasticall Judge commit the Guard of them, to such as shall have a care of their Persons and Patri­mony, untill they come to fourteen years of age. And this is often attested and confir­med by an Instrument authentickly sealed: But our Law doth not compell any one to such an Office, nay rather the Judges stir up [Page 42] and make choise of those whom affinity and consanguinity oblige to this work of love and Charity Swinb. part 3. Sect. 9.

1. And probably that Guardian may not improperly be stiled Dativus, Tutor which Bracton mentioneth, l. 2. c. 11. n. 1 & Brit. c. 34, 40, 62. Fle. l. 1. c. 9. when he saith that it is convenient for him that giveth Lands or Tenements to an Infant to appoint him a Guardian also, giving this reason because the Donor cannot be Guardian least he seem to continue his own Seisin nor can an In­fant consent to the Gift but by his Guardi­an.

2. The supream power may by Letters Patents constitute to an Infant an universall Guar­dian to answer & appear for him in all Acti­ons begun, and to be begun, and that before any Judg or Judges whatsoever. Or the same power may authorise two or three Guardians joyntly or severally to answer or prosecute any Action in his behalfe. and the same let­ters at the instance of the Infant may give power to the same Guardians joyntly and severally, to substitute other Guardians un­der them who may in their place and stead act for the said Infant in all causes and com­plaints or make defence for him. F. B. fol. 27. b.

3. Nor is it unusuall in Court-Barons or other liberties for the Steward or municipall Magistrate to appoint Guardians to Infants Kitch. in preceden. pa. 347.

Of the Authority of Tutors and Guardians.
TIT. XXI.

AN Infant under the age of twenty one years cannot make any contract in his own name (except for those things which ap­ [...]e [...]tain to his necessary Food, Rayment, and Education] Brook, tit. Inf. 51. without the Authority and consent of him under whose power and cu­stody he is New book of Entrys, tit.. Bro. non fuit com [...]os mentis. Bract. l. 5. trac. 2. c. 11. n. 1. nor can he commence his Suit against his Guardian Bract. l. 5. tract. 4. c. 4. n. 5. Brit. c. 121. An Infant may by himself and by his own Deed better his. condition, but he cannot preiudice himself Bract. l. 2. c. 5. n. 8.

1. There is something more particular in those who hold by Knights Service: For the capital Lords have a plenary power over their whole Estate without their persons and some­times over their Persons also, and so that they have the full disposing of Advowsons in case of Vacancies, and in granting, giving, or selling their Wards, And (in case of female Heires) of marrying them or selling their Marriages, and generally of disposing all things whatsoever for the profit of the Heir. Of late for their owne pro­per profit. Brook, Gard. 2. Fitz. Accompt, 36. as if they were to dispose of their own and better if possible. They may sell their custody of the Lands and the marriages of the Heires if unmarried, but they cannot alien any [Page 44] thing of the Inheritance, or sell the Re­mainder. Notwithstanding, as for the hei [...] which are in custody, they are to treat then honorably, and to discharge the dutyes be­longing to the Inheritance according to the quantity of the Inheritance, and for the ra [...] according to the time of the Wardship. They may manage the affraies of their Heires, re­cover their right in those things wherein the Heir as an Infant may plead, or move, or prosecute a Suit in their behalf; namely of the rights of possession of proper Seisin, or of the Seisin of an Ancestor. But in a [...] Action of right in case of property they can neither act nor answer for them, except of that of which the Infant was infeoffed du­ring his Minority. Bract. l. 2. c. 37 n. 3. & Brit. c. 34. fol. 90.

2. Guardians ought to sustain and keep in repaire the Houses of their Wards, as also their Parks, Warrens, Fishings, Mills, and other Appurtenances; least by neglect they be impaired or ruined, by which, wast may be found: They are also bound to redeliver the Lands in due time free, at least as they re­ceived them and that Gratis, quitted both of releife and Fine, in case they be accorded and agreed concerning Marriage Flet. l. 1. c. 12. Mag. Cha. c. 4. West. 1. c. 47. 6 Ed. 1. c. 5. West. 2. c. 35.

3. The same Authority also have Guardi­ans in Socage, to contract, to manage Suits in Law, and to do all other things which are behoovefull, either for the conservation or augmentation of the Estate of their Pupill: But these are liable to render an ac­count when their Wards shall come to age F. B. fol. 118. b.

[Page 45] 4, A Guardian may make Oath for his Word. Flet. l. 6. c. 10.

5. In some Cases our Law doth so highly [...]avour Infants, that it will not suffer them to [...]un the hazard of Judgement although with [...]he consent of their Guardians but stay pro­ [...]eeding untill they come of age. For in case of right or property of their possessions they can neither sue nor be sued, except for such which themselves have gaind. Glan. l. 7. c. 9. Bract. l. 5. tract. 5. c. 21. n. 2. yet for­merly there were bound in case of a Fine ac­knowledged in Court, in case of a proper in­ [...]ury, or Dower, or in Case of what them­selves had recovered, Dyer, fol. 104. & f. 137 but at this day they are not bound in case of Fine. Flet. l. 1. c. 9. 4 H. 7. c. 24 F. B. fol. 21.

By what means Wardships expire.
TIT. XXII.

ALL Wards whatsoever not holding by Knights Service are without more-adoe freed from their Guardians at fourteen years of age Lit. l. 2. c. 4 but those Tenants if male, not till one and twenty, if female not till fourteen Id. ibid. or in some cases not till sixteen years of age, V. sup. tit. 15. Sect. 4. and although a Woman being full twelve years old may contract Matrimony, as well by our Law as by the Civill Bract. l. 2. c. 37. n. 7. being then adjudged capable of a Husband: yet she doth not so soon come to maturity of [Page 46] Judgment but it is sooner notwithstanding out of custody then a man, because when she marrieth she doth but alter her condition entring under a new power of a Husband, in­stead of the custody of her Guardian. Glan. l. 11. c. 7. Bract. l. 1. c. 6. n. 2.

1. So a Wardship may expire by the na­turall or Civill death V. sus. tit. 16. of the Guardian which is that which we tearmed the, Maxi­ma or Media capitis diminutio, or in case the Guardian shall give Lands, &c. to his Ward or infeoff him. For no man can be both a Guardian and Feoffor at one and the same time. Bract. l. 2. c. 5. n. 6. But this is most remarkeable in Guardians which are so by reason of Knights Service, that they may either assigne the custody of their Wards, to another; or be­queath them amongst their other Chat­tells by common custome to their Execu­tors.

2 The Lord looseth the custody of the Body of his Ward when ever he giveth him or her in Matrimony: So that if it shall hap­pen, the Ward being under age to become single the second time he can by no means recover him into his custody. Lit. l. 2. c. 4

Of Tutors or Over-seers.
TIT. XXIII.

MEN though full growne, and women though marriageable, were amongst [Page 47] the Romans to receive Tutors untill they arrived at twenty five years of age. Notwith­standing, that they are not so with us beyond the age of one and twenty, and that in case where they had not any before either in re­gard of their Tenure or necessity of the Law. However we include Tutors and Over-seers under the name of Guardians, although it is apparent, those to be more proper in relation to the person, these to the Estate. V. tit. 14. Sect. 4. in Inst. & A de rit [...] nuptiarum l. sciendum 20.

1. To some also, the Law appoint Tutors and Overseers, for by the Statute the King hath the custody of the Lands of naturall I­deots, receiving the profis without waste and destruction, and finding them necessaries▪ without any regard had of whom the Lands are holden which after the death of the Ideots are to be restored to the right Heires, so that they cannot by any means be aliened by the Ideots or the Heires disinherited 17 Ed. 2. Brit. 167. Stan. Prerog. c. 9. Bract. l. 5. trac. 5 c. 20. n. 1. Dyer, 102. Co [...]. l. 4. 126. Fleta affirms l. 1. c. 11. that anciently Ideots were under the custody of their own Lords, But that for the many Exheredations that hapned: Their Guardianshipp was conferred by Parlia­ment upon the King, yet with this Proviso, that the Lords of the Fee and those whom it con­cerned should loose nothing which was their due. Either for Services, Rents Releifs, of their right of Guardianship, till they come to full age according to the condition of their Fee.

2. So also where it happens that any one who formerly had both memory and under­standing becomes, Non compos mentis, as some [Page 48] are who have, Lucida intervalla. The King shall take care, that the Lands and Tene­ments of such shall be kept without waste or destruction: And that he and his Family shall live competently and be maintained out of the profits of the same: And that the Re­mainder of their profits shall be reserved for their use. So that the said Lands and Tene­ments shall not be by any means alienated within the said time, nor the Revenues ap­propriated to the Kings use, and that if he shall happen to dy in such a condition, that then that said remainder of the said profits to be disposed of by the Ordinary, for the good of his Soule. 17 E. 2. c. 10. Bract. l. 5. tr. 5. c. 9. n. 7. Dyer, fol. 25. n. 164. Cook, l. 4. 127.

3. Those who are naturally deaf and dumb or labour under any perpetuall disease ac­cording to the opinion of some are necessari­ly to have Guardians. Bract. l. 5. tr. 3. c. 6 n. 6. & tr. 5. c. 18. n. 1. &c. 10. n. 1.

4. Infants are not forced to receive Guar­dians against their will except by reason of their Fee, or any of the causes before men­tioned, or in case of Suits in Law. And in the latter case oftentimes there is not only the next of Kinn assigned to assist the Infant in acting but a Guardian likewise to afford him help for his defence West. 1. c. 47. West. 2. c. 15. F. B. f. 27.

5. Notwithstanding which, no man as Guar­dian to an Infant shall prosecute for him or receive an Action without warrant, but ano­ther may as his Kinsman commence an acti­on for him without express warrant, Id. ibid. nor can an Infant disclaim that Guardian who prosecutes an action for him as being next of Kinn. Id. ibid.

[Page 49] 6. An Ideot born is not received to prosecute or defend in any action by his Guardian or next of kinn, but is required [...]lwaies to be present in his proper person. F. N. B. fol. 27. g.

Of the Security which is to be given by Guardians.
TIT. XXIV.

HE that is constituted sole Tutor or Guardian by the Magistrate or Ordinary [...]s bound by our Law to put in security. But [...]efore he is admitted to his Office he makes [...]ath to administer all the affayres of his [...]ard to his profit and benefit, to give a true [...]nd faithfull Inventory of all his Goods, [...]nd to exhibite it by a certain time, accor­ [...]ing as the Judge shall appoint, as also to [...]ender an exact and true account of his Office when it shall be required from him. [...]esides all which he is to finde fit and able [...]reties joyntly with himself, and severally [...]y themselves to become bound for his true [...]nd faithful administration of his Guardian­ [...]hip.

Of the excuses of Guardians.
TIT XXV.

OUR Lawes speak nothing of the excuses of Guardians because no one is pu [...] upon this Office against his Will.

Of Guardians which may fall under Suspition.
TIT. XXVI.

OUR Lawes are very carefull in p [...] of trusting Guardians. For he that give Estates to divers, whereof some are of ag [...] and some Infants, may lawfully appo [...] those which are of age to be Guardians o [...] the Infants; but this will not stand in c [...] there be any cause of suspition, that they w [...] contrive the death of the Infants, but susp [...] tion is not admitted, if the gift be made t [...] Father or Mother or their lawfull Issue, b [...] it is otherwise where it is to Brother or Uncle or Nephew; because of the right discending. Bract. l. 2. c. 11.

1. They who are Guardians by right o [...] their Fee, so long as they have the custod [...] [Page 51] of the Land are bound to maintain and re­ [...]aire all Houses, Parks, Warrens, Fish­ [...]ooles, Mills, and all things whatsoever ap­ [...]ertaining to the said Land, out of the pro­ [...]ts of the said Land: And to [...]ender to the Heir when he shall come to age, his said [...]and free from all Services of the Plough [...]t least as free as he found it. Nor shall he [...]ake any thing of the Land of the Heir as he [...]eing under age, more then the ordinary cu­ [...]tomes and reasonable Services. And th [...]s [...]ithout destruction or waste either of men or goods; which if he shall do, whether there [...]o any prohibition precede or not, he shall [...]oose his ward and pay Damages. And deli­ [...]er up the Land for his default, to some dis­ [...]reet and lawfull men of his Fee or to the [...]ext of Kynn. Bract. l. 2. c. 37. n. 3. & l. 4. tr. 6. c. 19. n. 2. Mag. Char. c. 4. & 5.

2. And it is true regularly, that no one [...]all remain in the custody of him who may [...]e suspected that he will lay claim to the [...]nheritance. Whence it followes that if there [...]e many Daughters and Heirs in Socage [...]one of them shall be wards to the rest, but [...]hey shall remain in the custody of their next of Kinn who are allyed to them in that line [...]o which the Inheritance cannot discend, [...]ut if they hold by Knights Service, they shall be all under the custody of another Capitall Lord [and not one alone under the Guard of another Lord by reason of the said suspition] untill they come to per­fect age. Bract. l. 2. c. 37. n. 6. & l. 2. c. 5. n. 8.

[Page 52] 3. A Ward may prosecute an Action of waste against his Guardian, and may con­stitute his Attorney in the Action. F. N. B. f. 27. H.

The end of the first Book.

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

Of the division of things and the gaining a Property in things.
TIT. I.

WEE have spoke before of the Persons and conditions of men and persons in Law. We are therefore now by consequence to treat of things by dividing and di­stinguishing, that they may the better be understood, Bract. l. 1. c. 12. in the be­gin.

1. Now the first division of things, is this, that some are in Patrimony and Inheritance, and some not. Those which are of, or be­longing [Page 54] to our Patrimony, and both move­ables and immoveables, which we have liber­ty to make use of according to our wills [...] necessities. Rights and Services are not pro­perly to be reckoned amongst Goods, but i [...] regard they are not extreneous, they may the rather be accounted such. Bract. ib. n. 2. Flet. l. 3. c. 1.

2. Those which are not appertaining [...] our Patrimony are things sacred, religio [...] and common. Bract. ib. n. 5.

3. By naturall right these things are to be esteemed as common. Running water, the Air and Sea, and the Sea shores as accessory. For no one is prohibited comming to the Sea shoares, whilst he abstaines from Buil­dings and Villages, because by the Law o [...] Nations the shoares are as common as the Sea: And therefore, those Buildings which shall be erected either in the Sea or shoare, are the Builders by the Law of Nations? and in this case the soile follows the propriety o [...] the building, although in others it be contra­ry the building giving place and following the propriety of the Soile Bract. d. l. 2. c. 12. n. 5.

4. Things which are to be esteemed pub­lick are Rivers and Ports. And therefore the right of fi [...]hing used to be free to all, as also the use of the banks are publick as the Rivers themselves by the Law of Nations. Wherefore it is as free to every one to joyn Shipps and fasten them unto them, to tye their cables or ropes to the Trees growing on them, to lay any burden upon them as it is to sail or row in the Rivers themselves, but the property of them is theirs to whose [Page 55] Fee they adione. And for that reason the [...]rees which grow thereon are theirs like­ [...]ise. And this is to be understood of those [...]ivers which have a perpetuall and continu­ [...]l course, because those which are but tem­ [...]orary may be private, Bract. l. 2. c. 12. n. 6. but these which [...]ere formerly the Peoples. And by our Law [...]ansferd upon the supream Power, as repre­ [...]nting the person of all the People and con­ [...]quently of the Common-wealth it self Pl [...]w. Cas. Reinyer & Fo­gassa. [...]herefore at this day whosoever disburdens [...] unlades his Ship upon the banks of pub [...]ck Rivers must pay custome, Hoc nomine, to [...]e supream power or its deputed Officers 3 H. 7. f. 14 nor can any man fish in publick Rivers [...]ithout license from the supream power first [...]btained. F. B. f, 88. h.

5 Where note the difference between [...]ublick and common. Publick are taken for [...]or those things which are the Peoples ge­ [...]erally, viz. Which are for the use of man [...]nly. But those are common which are for [...]he use of all creatures. Bract. ib. [...] 6. Brit. c. 33. Flet. l. 3. c. 1.

6. Those things are said universall and [...]elong to the generallity (not to particuler Persons) which are in Cities, Theatres, Ra­ [...]es, and the like, which are common in Cities and are for the use and in the power of the Generality. But of things which belong and appertain to the generallity, some are tear­med Venalia, not from the use but the power, under which they are and profit, as the lands and Servants of Cities so that they cannot be called any ones particularly. Bract. ib. Brit ib. Flet. ib.

Some things there are which may many [Page 56] waies be said not to be the goods of any one, as first by the Law of nature. Wild Beast, Birds, Fishes, and Men. Next by Judgment▪ as things Sacred, religious and holy. The [...] by accident as an Inheritance lying before it be entred upon or appropriated, and [...] Wreck. By will, as any thing that is left and forsaken, and by process of time as Treasure, Bract. ib. n. 10. & l. 3. tr. 2 c. 3. n. 4, 5, 6. D & Stu. f. 157. Brit. c. 33. Flet. l. 1. c. 43, 44, & 47. & l. 3. c. 1. but by our Law, Wrecks, things that are left and forsaken, and Treasure, belong to the publick Exchequer. Kitch. f. 12 f. 30. f. 40. Stat de Prerog. Reg. c. 11.

8. Things sacred are those which are duely set apart by the Clergy, for Gods Service. As Churches and Gifts duely dedicated for holy uses; as Chaliees, &c. Which are for­bidden to be alienated, except for the re­demption of Captives; also Church yards and Chappells, and although structures hap­pen to be dimolished, notwithstanding, the ground remaines sacred still. Now Sacru [...] differs from Sacrarium, Sacrarium signifying only a place where holy things are laid, Bract. ib. n. 9. & l. 2. c. 27. n. 2. &c. 5. n. 7. Brit. c. 33. and besides all these, the Kings High way in some sense is tearmed sacred, Bract. l. 4. tr. 1. c. 16. n. 9. &c. 28. &c. 38. & tr. 3. c. 9. & l. 5. tr. 5. c. 10. Fl. l. 3. c. 1.

9. Christian Religion makes religious things almost the same with sacred, yet there are amongst us many noble families who have by the leave of the Ordinary and Pa­rishoners, built Chappells near the Church, and have therein a right of buriall for them-selves, so that none else might be interred in them.

10. Those things which are called Sancta, are such as are s [...]nced and garded from the injury of men, as that law is particulerly [Page 57] called Sanctio which laies a Panalty upon those who commit injuries. And of this sort are walls and gates of Cities, which we sup­pose so called, because if we may credit our ancient writers their way, a capitall punish­ment ordained for those who should iniure them, either by violating or altering them, or climbing or Scaling them, or by any o­ther way. In regard it seems an Act of hosti­lity and not sufferable, to enter any other way then by the gates, Bra. ib. n. 9. but this punish­ment seems of late arbitrary, unlesse in time of Warr.

11. Now those things which every particu­ler man possesseth are held and had, either by the Law of Nature, the Law of Nations, or the Law Civil, we shal therefore first treat of the most ancient which had their first rise, e­ven with Mankind it self. After which we shall discend to the Law Civill which was introduced afterwards; namely, when Cities were built, Magistrates created, and Lawes began to be prescribed. Bract. l. 2. c. 1. n. 2. Brit c. 33.

12. Now dominion or propriety in things by the Lawes of Nature and Nations was first created by the occupation and possession of those things which did not properly belong to any particuler Person. Occupation in­cludes, Fishing, Hunting, Fowling, Inclo­sing, Seising, Bract. ib. n. 2, 3. Brit. c. 33 Flet. l. 3. c. 2. Plow. fol. 28. the Law of Nations puts the property of things thus gotten into the person who hath possession, but ours doth not. For there are many things which are the Kings by his Prerogative, Bra. ib. n. 2. and there are many Statutes which put limitations both [Page 58] to Fishing, 4 H. 7. 15. Eliz. 17. 25 H 8. 7. 13 E. 1. c. 47. 13 Eliz. c. 18. 31 H. 8. 1, 2. 3 E. 3. c. 1. 13 R. 2. Stat. 1. c. 19. 1 Eliz. c. 17. Fowling, 5 Eliz. c. 21. 13 H. 8. c. 18. & 31 c. 2 37 D. 3. c. 13. 24 H. 8. c. 10. & 25. c. 11. & 31. c. 12. & 32. c. 8, 11. 3 & 4 E. 6. c. 7. 5 El. c. 21. & 23. c. 10. Dyer, fol. 306. & 326. and Hunting 5 Eliz. c. 21. 13 H. 8. c. 18. & 31 c. 2 37 D. 3. c. 13. 24 H. 8. c. 10. & 25. c. 11. & 31. c. 12. & 32. c. 8, 11. 3 & 4 E. 6. c. 7. 5 El. c. 21. & 23. c. 10. Dyer, fol. 306. & 326. by which that ancient liberty which the Law of Nations intitles us unto, becomes bounded, custome also of places doth often in these alter common right.

13. The meer persuing and hunting of any thing doth not make it mine; for although I should so wound any beast that it may be ta­ken, yet is it not mine untill I shall have taken it, nay, it shall rather be his that can get possession of it in regard many things may intervene and happen which may hinder my taking of it. So if a Dear shall fall into the Ginn or Snare which I shall set up, for to catch any thing, and I chance to take him and hunt him by persuing, he shall be mine if he come into my power, unlesse there be a­ny custome or Priviledge to the contrary. 23 Eliz. c. 10. 13 E. 2. Stat. 1. c. 13. 2 & 3 E. 6. c. 14. & 17. Dyer, f. 238.

14. So bees are by nature wild for if they shall settle upon my Tree they are no more mine before I have hived them. Then the Birds which shall build their nests there, and therefore if another shall hive them, they shall be accounted his, yet the Chickins or young ones of such Birds as build in my Trees are mine by right untill they can fly away F. B. f. 86, 87, 89. Doct. & Stu. l. 1. c. 5. so that if any one else shall take them away, he is liable to pay me Damages. 14 H. 8. f. 1. F. B f. 86. If a swarm of Bees forsake my hive, they are said to be mine so long as they continue in my sight and that the persuing of them becomes not impossible, otherwise they are his that takes them. But yet whosoever shall take them doth not make them his, if he [Page 59] know whose they are, but commits Theft un­lesse he intend restitution. And these are true unlesse where the particuler custome of any place makes an alteration. Bract. l. 2. c. 12. n. 3. Brit. c. 33. Flet. l. 3. c. 2. Sect. 2.

15. That which hath been spoken is to be understood of those Creatures which remain continually wild, but if any shall happen to be made tame, and by custome goe familiar­ly in and out, fly abroad and return as Dear, Swans, Peacocks, Pigeons and the like. There is another▪ rule to be observed for that they are to be understood, ours so long as they have any Inclination of returning. For when ever they cease to have any desire to return, they cease to be ours, and the in­clination of returning is then said to cease when the custome doth; and the same is to be understood of Hens and Geese when ha­ving been tame they become wild. Bract. ib. Brit. ib.

16. But in the case of Hens and Geese which are bred in a House, the third rule holds good, namely, that although they fly away out of my fight, yet in what place soe­ver they are, they are to be understood mine, and he committs Theft who detains them with an intention to gain. Bract. ib.

17. And this Species of possession takes place also amongst those who are made Cap­tives, that if free men be brought into our Servitude and escape, they receive their pri­stine condition Bract. ib.

18. So hath it in those things that are com­mon as in the Sea and its shoare. In stones and Gemms, and other things found on the shoare. Bract. ib. Brit. d. c. 33. Flet. l. 3. c. 2.

[Page 60] 19. The second manner of gaining, whic [...] is by Jus gentium, and is a discreet or di­stinct increase, or secretly a Contrete or con­tinued. And therefore whatsoever is born [...] comes from any sort of animalls under [...] Subiection or power are absolutely gained unto us. Bract. ib. Brit. ib. Flet. ib.

20. So Whatever a River throws up [...] adds unto our Land by overflowing is ours, by Jus gentium, now this kinde of increase [...] unknown, for that it is said to be added by overflowing, which is so insensibly added, that the time or times are insensible. Bract. ib. Brit. ib. Flet. ib. Dyer, fol. 326.

21 But if this increase be not inpercep­tible, but apparent, then it is otherwise: As in case the force and violence of a River should sever any part of your Inheriance, and joyn it to your Neighbours, yet undoubted­ly it remaines yours still: but if it shall remai [...] long so ioynd, and the Trees which accompa­nied it, take root in your Neighbors fee, from that time they seemed to be perfectly added and gained to his Inheritance, yet according to some, there is a profitable claim given to the former owner: But this claim ceaseth be­cause the very Superficies, is become anothers, and a Tree which is fed and nourished by another mans ground shall be esteemed his. Bract. ib. Brit ib. Flet. ib.

22 And this kinde of accession is in case of an Island made by a River which if it be iust in the middle of the River, it shall be in common to those who, pro indiviso, have the Inheritance near the bank on each side [Page 61] the River, according to the latitude of each [...]ee towards the Bank. But if it be nigher to [...]ne side then the other, then it is theirs only which have the Inheritance on that side neer [...]he Bank. Bract. ib. Brit. ib. Flet. ib.

23. But if an Island be made in the Sea, [...] which seldome happens) the propriety is in [...]he Occupier, not that another mans ground [...]nd property reduced into an Island, is to be [...]nderstood an Island; as if a River being [...]ivided at the upper end, incompaseth ano­ [...]hers Ground, and is again united; in this [...]ase the property remains in him in whom it [...]as. But this is to be taken in grounds not [...]imited, for in those that are limited, over­ [...]owings signifie nothing: Now those are li­ [...]ited to which tearms and bounds are ascri­ [...]ed. Where it is distinguishable what is gi­ [...]en, what retained and left. Moreover an [...]sland is not to be appropriated to limited [...]ossessions in the case of Vicinity, where the River is publick: But the property is rather [...]n the Occupier, and consequently in the King by Prerogative. Bract. ib. Flet. ib.

24. And this kinde of accession is to be understood in case where the Channell of a River is left by the River, the property of which shall be in them whose possessions are next to the River bank, according to the lati­tude and extent of their possessions neer the bank; the property of the new Channell re­maining with that of the River, namely in the publick, now in case where a River shall take away part of my Fee by his new Chan­nell, and shall return again to its old; I can­not [Page 62] strictly by Law challenge any thing to my own Fee in regard the property is i [...] them whose possessions are next the bank: Though in Equity I may. Bract. ib. Crom [...]. Juris. fol. 109.

25. But in case a River shall not make any new Channell in my Grounds but only over­flow them, there the Species as to the proper­ty is not altered, and thus much for acces­sion which is meerly providentiall.

26. There is also another kinde of Accessi­on which is naturall which by joyning one Species with another either of the same or di­vers kindes, either by sodering or ceme [...] ­ting, in which case the Minor shall give place to the Major or more worthy or precious; but if neither be more precious, then every one may claim his own. Bract. ib. Flet. ib.

27. The right of Accession takes place likewise in houses built, as if I build ano­thers materiall upon my Soil, I shall be e­steemed owner of the House because the pro­perty of what is built followes the Soile, Fulb. tit. Devises f. 39. Flet. ib. nor yet doth he that was owner of the matter cease to be owner still, nor yet can he take [...] away, but he may recover double damages. And if the house shall fall he may challenge what was his, if he have not recovered dou­ble; but on the other side, if any one out of an evill intention build with his own mate­rialls upon my ground, he is presumed to give me his materiall, but if it be not through any evill intent, as supposing the ground to be his, I, who am owner of the soil shall pay unto him the price of his materiall [...] and his Workmens wages, now this which [Page 63] hath been said, it to be understood where [...]hat building is immoveable, for if it be mo­veable it is otherwise. As for example, a new Barn of timber built or placed upon the In­heritance or Fee of John an Oakes shall not be understood to be the Barn of John an Oaks. Bract. ib. n. 4. Brit. c. 33. f. 86. Perk tit. Dower 328.

And this very Species of Accession which is by the Labour and Industry of man may be assigned even to Letters for letters though writ in gold follow the property of the Skins or papers in which they are written, as buil­dings do the property of the Soil on which they are built, Bract. ib. n. 5. Plow. 223. but it is otherwise in case of Pictures. For it were ridiculous that a pretious Picture should by accession intitle him to the property who was only owner of a vile and inconsiderable Table whereon it was drawn, Bract. ib. and therefore the Table shall fol­low the Picture.

29. So also in Textures for if any one shall interweave or imbrayder his Purple in my garment although his Purple be much more pretious then my garment, yet by the right of accession it shall follow the proper­ty of the Vestment. Bract. ib.

30. Likewise, the same Species of Accessi­on in fructuaries and in those things where­of we have the use but not the property con­cerning the revenues of income of the in­rease, Bract. ib. Flet. l. 3. c. 1.

31. But there is another Species of accessi­on which is providentially naturall and is made by the cooperation of divine and hu­mane nature from whence a property is ac­quired, [Page 64] as for example, A. sowes anothers mans plant in his own Soil the property of the Plant shall be in A. and on the contrary A. sowes his own Plant in the Inheritance of B. B. shall have the plant, provided in both cases that they take root, according to the verse.

Quicquid plantatur seritur vell inaedificatur.
Omne solo cedit, radices si tamen egit.
Whatever we do plant or build or sow,
Follows the Soil, if they with roots do grow.

But before they have roots they are his who first had the property, and this is so un­deniably true that if A. have a Tree which doth so much overcharge the Soil of B. that it takes rooting in it, the property shall be in B. for reason will not permit that it should be in any other then in him in whose ground the roots grow, so if a Tree be set in the bounds of Lands, and the roots reach into anothers soil, the tree shal be com­mon nor shall it be permitted the Neighbour to cut up the roots, and this is to be under­stood in case where my tree puts forth its roots so far into my Neighbours Soil, that without it, it cannot live or grow; for where it hath sufficient to maintain it without those roots, it shall not be in Com­mon. Bract. ib. n. 6. Flet l. 3. c. 2.

32. And by the same reason that Plants having taken roote, and immoveable buildings follow the property of the Soil, [Page 65] by the same reason doth any kinde of grain when it shall be sown and take nourishment and grow in the ground, nor is it materiall whether it came there by accident or not. Bract. ib. Brit. c. 33.

33. There is also an accession by specifica­tion or changing the Species, as if a man create a new Species out of a substance which was anothers, the property shall be in him, that made the Species.

34. And in like manner by confounding, as in [...]icquids, by confounding wine with hony. So may there be confounding also of Solids, al­though it be wrought with very much diffi­culty, viz. The Species, as Gold, Silver, Lead, Iron, the product of which shall be common whether they will be seperated or not) a­mongst those by whose desire the bodies or Species were intermixed, so also in case of an intermixture purely accidentall, which will not admit of Seperation, but if it be possible to seperate the substances, then each shal have his peculiar part in weight and measure ac­cording to that which he had in the originall and rude matter. Bract. d. c 3. n. c. Flet. l. 3 c. 2.

35. But if one mans corn be mixed with a­nothers, the Corn shal not all be common, but each one shal claim his share from the heap, according to his quantity or measure of Corn, nor can there be any community in Corn; be­cause single bodis remain in their own proper substances, as in case A. his Herd intermixeth with mine, it cannot be conceived that the Herd should become common, and although it be very difficult, & in a manner impossible [Page 66] to seperate one mans corn from anothers, [...] there may be sufficient argument to give [...] [...] tle to the claim of an individuall part, [...] the whole heap of Corn were in comm [...] Namely, that he may claim so much of [...] heap as was his, now there is a difference between confounding and mixing, and that [...] three particulers. For Species are said to [...] mixed, and matters and substances, to be [...] founded. Also Species mixed remain in [...] same substance and Species, but confounde [...] they are transferred into another [...] Bract. ib. Flet. ib.

36. If a man buy an Inheritance, [...] of another whom hee beleeves to be them owner of it, when indeed he is not, or sha [...] Bona fide receive it of gift or upon any [...] ther just consideration. Naturall Reason [...] leth that the profits which he hath receive shall be his for his tillage and care, Fulb. Bar­gaines, f. 13. b. & 14 Eli. 311. Dyer. [...] this is not permitted to a wilfull [...] of another mans Inheritance. Cook, l. 1. 98. Perk. 529. Stat. Glocest. c. 1. An. 6. Ed. 1.

37. Now it is much questioned wheth [...] Tenant for life [which is almost all one [...] the Roman Fructuarij] hath any right [...] to profits and fruits unreceived. And [...] Books distinguish between fruits growi [...] meerly by the operation of the divine na [...] for as to those they conclude that Tenant [...] life may dispose them, either by his [...] Will and Testament, or otherwise. Perk. f. 513 514, 515, 518, 519, 520.

38. There is a propriety gained by [...] ding, as in case of Treasure found, Bract. ib. & l. 3. tr. 2. c. 2. n. 3. Plow. 315. & 323. no [...] by Treasure we mean an ancient h [...]ardi [...] of Money or other Me [...]all, whose memor [...] [Page 67] is so much worn out, that it hath not now a­ [...]y owner; and so by the Law of nature, it is [...]is who found it, to exclude others, Flet. l. 1. c. 43. other­ [...]ise if any man for gain, fear, or to keep it, [...]ids and burieth any thing under ground; this [...]all not be said a Treasure, and of this there [...]ay be Theft committed. Treasure is suppo­ [...]ed the gift of fortune; and no one ought by [...]he labour of his Servants to seek after it, [...]or for it to dig up the earth, and seeing Trea­ [...]ure is no particuler mans goods, and was an­ [...]iently the finders by the Law of nature, now [...]y the Law of our Nation, it is become the Kings, Bract. l. 3. tr. 2. c. 3. n. 4. and this is true for things found [...]n the earth, but it is otherwise for things found in the Sea, Brit. c. 17. as for other things which are found above ground, they remain [...]he owners stil, if he make claim within a year and a day, nor is the property in the finder [...]ntill he hath made publication of the things found, in the Markets, and Churches, next adjoyning, Brit. ib. Dr. & Stu. l. 2. c. 38. Dyer 121. n. 14. yet at this day if they be things [...]nanimate, they escheat to the Lord of the Mannor for ever, nor can any prescription of time entitle the finder unto them, Brook, Act. sur le Case, 109, 113. and the reason of difference is this: That animall things cannot be kept and maintained with­out charge, which is otherwise in inani­mate.

39. Those things which accrue unto us by Tradition or Livery, are ours by the Law of Nations: Nothing being more consonant to naturall Aequity, then to have the will of the Donor confirmed when it transfers any thing upon another. Now Tradition is a free [Page 68] transferring of a corporeall thing, either of ones own or anothers, from person to person, with ones own hand or anothers as admini­stratory [provided it be with the will of the owner] into the hands of another. And Tradition is nothing else in ano­ther sense, but the Induction of a corporeall thing into possession, Bract. l. 2. c. 18. n. 2. Brit. c. 40. Flet. l. 3. c. 2. nor is it materiall whether the Owner himself deliver the thing given or sold with his own hand, or another by his appointment as his Attorney, if himself shall not be present, or a Messenger with Let­ters Patents of Attorney, intimating and containing the will of the Donor or Selle [...] ▪ Bract. l. 2. c. 18.

40. Now the bare will of the Owner [...] the case of Livery is sufficient for the trans­ferring of any thing to another, as changing the cause of possession, Provided it be wit [...] Solemnity, and that there doth not wa [...] Witness, as in case a man lets a thing to ano­ther, or grants it for tearm of life or years and shall either sell or give the same unto him afterwards, although he had it not at first upon this Score, yet since the Owner him­self suffers him to injoy it upon this or ano­ther account, it becomes his. In the same manner, if any one be in possession of ano­thers right, without a iust precedent cause, namely by Intrusion or disseisin, and the ow­ner wils that the Intruder or Disseisor shal [...] have it, it shal be his although the owner were not possessed of it at all, it being supposed that possession and property in the thing [Page 69] came unto him by the owners Will, as from him and by his own hands Bract. l. 2. c. 18. n. 2. Lit. l. 3. c. Releases. Flet. l. 4. c. 20.

41. Things sold and delivered are no other­wise, the Buyers then as paying the seller for them, or otherwise satisfying him as by pledge or earnest, Bract. l. 2. c. 27 n. 1. Flet. l. 2. c. 51. Dyer, f. 76. n. 30. unlesse the seller lets him have it upon his Credit. Dyer, f. 30 n. 203. Plow. f. 432. & f. 5. & 9

42. Where Livery is to be given to any one either by the owner himself or his At­torney, of any house by it self, or of any Messuage, by reason of a Fee, to that intent that the Donee should have the possession untill a certain Term with all the rights and Appurtenances: It is not needfull in this case to go round all the Land, or set ones foot in every part or parcell of it, but it sufficeth if Livery be given by a Doore or by the hasp or Ring of a doore; For by this means he shall be in possession of the whole by the in­tention and view, and by the consequences of possession, but if there be no house he may have seisin [as it is commonly called] by a staff or twigg, and the meer setting of the foot upon the Soil with a desire of posses­sing and an intention of the Donor is suffi­cient, notwithstanding that it doth not im­mediately inure to take its effects, Bract. l. 2. c. 18. n. 2. but without Livery of Seisin a Free-hold pas­seth not, either by Feoffment, Gift, or Lease. Brit. c. 33. Bract. l. 2. c. 19 Doct. & Stu. c. 7. f. 14. Lit. c. Attornment. Perk. from f. 206. to f. 216.

43. Those which the Romans cal'd Missilia, or the Liberalities which Emperours and Princes scattered among the People, are not so frequent with us as they were with them, yet we have some mentions of them which [Page 70] carry the same Right with them, as when the Conduits of London at the Coronations of Kings or other such like solemnities [...] with Wine, every one hath a property in the Wine he there takes. Bract. l. 1. c. 12. n. 10. Fle. l. 1. c. 43. & 47

44 Whatsoever is left and forsaken, ou [...] Lawyers term a Waife, this was formerly by naturall right the finders, but now by ou [...] custome it is the Kings, Bro. tit. E­stray & Waife. that also it called a Waife when any personall or moveable Chattell is felloniously taken and being through the fear of t [...]e Felon left, hath no owner to claim it, Kitch f. 12 b. n. 39. wherefore if any such thing be found, it is the Kings or the Lords of the Mannor, to whom this liberty and priviledge is granted by the King, yet so that Restitution is to be made, if the Owner claim it within a year and a day. Brit. c. 17.

45. So any beasts that are found straying in any ones ground follow the custome of things left, for even these also were by out ancient writers included under the name of Waifes Bract. l. 1. c. 12. n. 10. Fl. l. 1. c. 43. & 47 but others call them by a more particuler name, Estrayes Brit. d. c. 17 which our La­tines render, Extrahura: Because for the most part they break forth and stray against their owners will, and these after a year and a day, if not claimed by their Owners with­in a year and a day, Escheat to the King or the Lord of the Mannor where they were ta­ken, Provided they be duly cryed and proclai­med in the Neighbouring Markets. Brit. ib.

46. The same is to be understood of things cast out of a ship in a Tempest to lighten the ship, or of such things which happen to fall [Page 71] out of a Cart when it runs, the owners not [...]owing of them, but in case of Shipwrack which we call a Wreck) where neither any [...] the Passengers, nor any Catt or Dogg [...]ts from the Ship to the shoare a live, what­ [...]ever of the Goods or ship shall be cast up­ [...] the Land by the Sea, shall be the Kings [...] the Lords of the Fee, to whom the King [...]th granted this priviledge. Brit. d. c. 17. & Westm. 1. c. 4.

47. No man can have any property of [...]ands in England before he be a free Deni­ [...]en, Bract. l. 5. tract. 5. c. 25. n. 3. Bro. tit. Corporation 26. Dyer, f. 2. n. 8. & f. 224. n. 29. for that whatsoever is purchased by [...]n Alien is forfeited to the King. Bro. Deni­zen. 16.

Of things Corporeall, and Incor­poreall.
TIT. II.

THere are moreover of things, some which are corporeall and some which are Incor­poreal. Corporeal are such as may be touch­ed, as Land, ground; things immoveable and moveable, which can move themselves, as living creatures and the like, or which may be moved.

Things which are Incorporeall are such which can neither be seen nor toucht, as rights and Priviledges, the right of walking, a­cting, conveying of water, and the like. Bract, l 2. c. 12. n. 3. Flet. l. C. c. 3. Plow. f. 170. Now rights and Services are the same, but have their appellations from a diverse re­spect. Bract. l. 4. tr. 1. c. 37. To this may be added the right of [Page 72] Pasturing, which we cal common of Pasture▪ Fishing, digging of Turfes, felling in othe [...] mens Woods, the right of presentation to [...] benefice distinct from an Estate of Inheri­tance, which is by us called Piscaryes, Turn­ryes, Estovers, Id. ib. Advowsons in grosse. Bro. Te­nure, n. 15. & 18. And lastly an Annual Rent, Doct. & Stu. c. 30. now this can­not be said properly to be in possession, but [...] it were. Bract. l. 4. tr. 1. c. 37. & l. 2. c. 23. Myns [...]n. ad rubr. Instit.

1. For things moveable or immoveable our Law determineth, Quatenus to the Persons, and as they either are or are not in the po [...] ­er or property of man, Id. ib. Now property is [...] full and absolute right of disposing of, or sel­ling any thing corporeall, unless the Law & any condition hinder, Gothof. ad rubr. [...]. de aqu. rerum dominio. Lit. l. 1. c. 1. Bract. l. 2. c. 21 & 23. Brit. c. 40 Possession or Se [...] ­su [...]e, In Dominico, &c. Is properly of corpo­re all things, and incorporeal we only say as of Fee. For that they are not absolutely ac­quired by Livery of Seisin, but as it were, now this Seisure, In Dominico, &c. Is two­fold. Direct, or meerly for use. Direct, [which is also tearmed absolute] is that which comprehends both Property and use, The other consists solely in the benefit and use of a thing. Bract. l. 4. tr. 1. c. 27. n. 6. & tr. 4. c. 4. Fl. l. 1. c. 12.

2. The English have a full Dominion and Power of things corporeal and moveable, but not of immoveable if we except the supream power and right of the Crown; for the Sub­j [...]ct hath not an absolute freehold in their Lands and Tenements, but a Fee only, and that fee doth not comprise so absolute a pow­er, appears, not only by those Authors who write of Fees, Anto. Con. in Feodorum Comment. c. 2. Matthae us [...]e­senbecius in tr. de feodis c. 1. but even by Littleton [Page 73] himself, when he saies that such a one was seised of such an Estate in his Demesne as of Fee, by which words he affirms the highest and fullest title to be exprest. And these words, (as of Fee) do abate somewhat of an absolute power, and argue a Tenure from a superiour, but that these words are some­times referred to the Kings Demesne, In 27 H. 8 16. is either from the ignorance of speaking and applying; or else that distinction is maintai­ned by which some will have a double accep­tation of the word Fee, viz. One by which a man holds an immoveable thing by any Title to him and his Heires. The other by which one holds from another by Rent or Service, or both, Flet. l. 5. c. 5. whereas Fee in the se­cond acceptation is never without the Oath of Fealty, Termes of the Law, V. Fealty. Fulb. Paral. c. Seig­niority, f. 19. b. which the King never gave to any one as having an absolute Power. Fort. c. 9. Bract. l. 1. c. 8. Brit. in Praemi.

3. Fee which is in latine Feodum, and by some Feodum, comes from the German [Fief] which signifieth an Inheritance held of another, Hottoman. b. disput. c. 11. and is by those that write of Fees defined to be an immoveable thing gi­ven to another, in such a manner that the Property continues in the Power of the Do­nor, but the benefit and use is to the Donee, and his Heires, Males or Females for ever. So long as the Donee and his heires doe faithfully their Services to the Lord, Anto. Con­tinus in Com. sup. feod. c. 3. so that Fidelity or Fealty is the foundation of Fee and nothing else. Yet it often hapneth that it is not bestowed Gratis, but for some small consideration of Money in the name of [Page 74] Rent, or for Services, Duar. in Com. sup. feod. c. 12. Smyth. Com. l. 3. c. 8. but we understand by Fee, all which we hold to us and our Hei [...] Bract. l. 4. tr. 3. c. 9. n. 6. Lit. l. 1. c. 1.

4. Fee, as it is taken for an Inheritance held of another, is held either of the King or a Subiect, or (that we may use our ow [...] Phrase) a common person. Fees that are held of the King are double, either in right of his Crown (which we call Tenure in Capi­te) or of some Honour or Mannor appertai­ning to the Crown: But a Subiect although he may have others who hold of him in Fee, from whom he may exact Fealty, yet himself is either mediately or immediately Feodary to the King, for all the Land of this King­dome which is not held of others by Services is held of the King and belongs to him, either as ancient Demesne, escheats, or perquisites.

5. Fee is divided into many Species, ei­ther from the Effect, or from some cause ef­ficient or formall, but we shall only discourse breifly here of those which we meet with most frequently in our Books.

6. Fee therefore is either Leige or non­leige some Feodists Duar. ib. will have it to come from the Italian word [Liga] which signifies a Band or League, and that because it ties and obliges the Vas [...]al. For Leige is properly where any one swears Fealty to his Lord non-Liege is when with the exception of a­nother. The first is due only to the King, the later to common persons. 10 R. 2. & 11. c. 1. & 34. & 35. c. 3. Lit. l. 2. c. 1.

7. Again, Fee is either Royall or no [...] Royall. Royall, is the greater, for that it hath somewhat of Royalty in it, as from [Page 75] whence any one is instituted from the King [...]eing absolute, without acknowledging a su­ [...]eriour. Of this sort are those which had a [...]ignity or Honour conjoyned with the pow­ [...] of their Priviledges, and are by us stiled [...]erties or Prerogatives Royall; as where [...]e King grants by his Charter to any Sub­ [...]ct the view of a Franck Pledge, the Pleas [...] Impranding, the amendment of the faults [...] Assise, the adjudging of Robbers, as infang­ [...]eife and out [...]ang theife, Soc, Sac, Tol, Theam. [...]o punish by the Gallows, or other punish­ [...]ents which the execution of Judgement [...]all require Goods of Felons, and which [...]pertain to the Peace, and consequently to [...]e Crown. Bract. l. 2. c. 5. n. 7. &. c. 24. & l. 3. tr. 2. c. 35. Wrecks of the Sea, Whales, [...]u [...]geons, Free warren, Fayre, Bract l. 4. tt. 1. c. 46. and those [...]her things which fall within the Kings [...]erogative. But of these Fees there are [...]th us certain degrees, since some have a [...]eater number, some a lesser granted unto [...]em.

The first, the Principallity of Wales claims [...] right, Polid. Vir. in ed. 1. f. 343. lin. 28. which from the time of Edward [...]e first did belong to the Kings eldest Son. [...]nd the second is claimed by the foure Pa­ [...]tinates or Counties Palatine, Lancaster, [...]rham, Chester, and Ely. 5 Elix. c. 23. 17 Ed. 4. c. 1. 27 H. 8. c. 25.

And these have those Fees which we cal­ [...]d Honors which the King (besides the Juris­ [...]ctions contingent to Courts Barons) hath [...]anted some, though not all these Royall­ [...]es out of his Munificence. 31 H. 8. c. 5. & 33. c. 37, 38. & 37. c. 18.

8. Thirdly, Fee is either noble or Ignoble, [...]oble is that which hath any Dignity an­next [Page 76] to it, or which enobles the Possesso [...] or concludes him to be noble. And of the sort with us are those which we cal Mann [...] whose Lords have some Jurisdictions, thou [...] not Royal over those which hold of their [...] Perk. 670. Fulb. par. Seig. f. 18. Kitch. f. 4 Ignoble, is that which depends of such Mannor, and is granted to Countrymen [...] their Heires for some base Service; this [...] commonly called Free-hold.

9. Fourthly, Fee is either new or an [...] ­ent Homage Aun­cestrell. new, is there where any one is first all invested by the cheife Lord of the [...] and that either by the Curtesy of the Lo [...] or for Money paid to the former feoda [...] for he is the first of a new Family, who yei [...] Homage and Fealty, Lit. l. 2. c. 7 ancient Fee is who the Feodary and his Ancestors, time out [...] mind, have held such a Fee, and here the F [...] dists Id. ib. & new terms, tit. Hom. Auncest. place a Medium between these two, [...] paternal Fee which comes by four degreese Discent, and they define that to be the a [...] cient which discends from more. Duar. com. in cons. feod. c. 4. n. 10.

10. Fiftly, Fee is divided into ecclesias [...] and Laick or Seculer. Ecclesiastick is th [...] which is possessed either by Ecclesiastick persons or which belongs to Churches. [...] that which is held by Lay persons, and cann [...] be possessed by Ecclesiastick, and indeed [...] Fees as with us laick, unless they become [...] ther by some speciall grant from the King which we call giving to Mortmain. Mag. Char. c. 36. 18 E 3. Stat. 3. c. 3. 15 R. 2. c. 5. Pol. Virg. l. 17. Eng. Hist.

11. Sixthly, Fee is distinguished [...] Masculine and Feminine. Masculine is th [...] which is given to the Feodary, and the Hei [...] Males of his Body, and of this kind [...] [Page 77] those of Dukes, Marquesses, Earles, Viscounts, [...] Barons, for the most part. Which [...] defect of Heirs Males are extinguished, [...] return into the supremacy, from whence [...]ey Issued, but these are at this day rather [...]itles of Honour then Fees, in regard they [...]re for the most part conferred without [...]. [...]emenine, is that which may discend to [...]e [...]male Issue, as when it is given indefinitely [...] the Feodary and his Heires, and so that or default of Heires males it may come to [...]he females and their Issue. Bract. l. 2. c. 34. & l. 1 c. 8. n. 4.

12. Lastly, Fee is either pure or simple, or [...]onditionall. Simple is that which is held [...] a simple and perpetuall Right to the Feo­ [...]ary and his Heires for ever. Conditionall, [...] that which is granted to the Feodary and [...]uch or such Heirs, for default of which it re­ [...]urns to the Donor and his Heirs, and there­ [...]ore he that hath Lands given to him and his Wife, and to his Heires begotten of her, in [...]ase she dy without Issue before him, is called [...]enant in tail after hope or possibility of Issue [...]xtinct For this kind of Fee with us is called Fee-tail, comming from the French word [Tallier] to cut, part, or divide, as if we should say a Fee by some means severed or diminished. Lit. l. r. c. 1 & 1 Instit. Jur. com. c. 11. & 13

13. And this kinde of Fee is double, viz. Taile generall and Taile speciall. Generall Taile is where a Fee is given to the Feo­dary and the Heirs of him lawfully begotten or to be begotten, for in this case the Chil­dren of either Wife, whether first, second, or third, shall inherit: speciall Taile is where a [Page 78] Fee is given to the Feodary, and his Wife and to the Heirs of either of them Lit. ib. Inst. Jur. c. 12. West. 2. c. 1. or [ac­cording to some] when it is given to him and his Wife and one Heir of their Bodys lawful­ly to be begotten, and one Heir of that He [...] only, Perk. 171 but this, whether it be properly to be stiled a Fee for want of perpetuity may [...] be doubted.

14. Now a Fee is not limited to one F [...]o­dary, but may be possessed by more, so tha [...] they are called Partners, Joynt-Tenants, [...] Tenants in Common. Lit. l. 3. c. 3 Inst. Jur. com. c. 15. Partners are either by Law or custome, by Law are Sisters Co-heires, because the Heires Males being dead they equally succeed their Parents in the Fee, Id. c. 1. & 3 by custome are Brothers in ma [...] Counties, especially in Kent, from the Cu­stome of Gav [...]lkind, called so from the e­quality of apportioning the Inheritance Id. c. 2. Joynt-Tenants are they which hold Lan [...] or Tenements by one and the same Title, but not hereditary. Tenants in common [...] those which possess Lands or Tenements [...] indiviso, by divers Titles, as in case one Co-Heire sells her part to a stranger, he is not Joynt-Tenant with the other Partners, but is called-Tenant in common. Id. c. 4. Inst. Jur. com. c. 15.

15. A Fee with us is not only of Corpo­rall things but incorporall also, for the cu­stody of a Forrest, Vid. N. b. f. 6. Dyer, f. 30. n. 209. Prison, Id. f. 41. or County, 28 Ed. 1. Stat. 3. c. 8. may be granted to one in Fee, and the same may be said of an annuall Rent, Vid. N. B. fo [...]. 8. and of an advowson severed and not apper­taining to any Mannor, which we call an Ad­vowson in gross Lit. l. 1. c. 1. Bro. tit. Te­nures, 105. now there are many ser­vices [Page 79] pertaining to a Fee, which we shall mention in the next Chapter.

16. There are belonging even as it were to the very nature of Fees, Fee farm, free farm, and free Tenement, Fee farm is a Tenure of Lands and Tenements granted to any one and his Heirs for a yearly Rent, which equals the third, F. N. b. fol. 210. b. or at the least the fourth part, Old Tenure ver. Fee farm. of the true value without any o­ther Services then what are expressed in a Charter of Feoffment, West. part. 1. symb. 463. some affirm that a Fee farm can only be granted for the life of the Farmer, and some will have it Fealty al­though not expressed New terms of the Law. in the Feoffment, and others that reasonable releife Bract. l. 2. c. 39. n. 9. is due of right from the Fee-Farmer to the Donor, but the condition of this Tenure is such, that if Rent be not paid by the Tenant for the space of two years, then the Lord or Fe­offer may recover the Lands to him and his Heires upon his action.

17. Britton makes free farm where Lands and Tenements are so given that the nature of Fee by Feoffment is changed from Knights service to certain annuall Service, so that there is neither Marriage nor Releife re­quirable, nor any other service expressed in the Feoffment Brit. c. 66. but I do not remem­ber that I have read this in any other Au­thor.

18. Free Tenement or free-hold is, where Lands and Tenements are held only for life of the Tenant, and such a Tenant is said to hold, In Dominico suo ut de libero Tenemento, Dyer f. 221. n. 19. & f. 153. n. 10. But if it shall be said that Fee is natural­ly [Page 80] a Free-hold. I shall not deny it, only must add, that it is also somewhat more, because perpetuall, Inst. Jur. com. c. 10. Lit. l. 1. c. 6. Bract. l. 4 tr. 1. c. 37. but of that Free-hold which is meant here there are two kinds. One which is for tearm of life even by the very custome and Law, the other which is so only by agree­ment. Of the first sort are Tenants by the Cur­tesy of England, and tenants in Dower, for such is the Civillity and courtesy of our nation, that if a man marry a woman that is an Heir, and have Issue by her, born alive, that Land of which he is seised in right of his Wife in her life time he shall hold after her death for tearm of his own life, Bract. l. 5. tr. 5. c. 30. n 7. Flet. l. 6. c. ult. Dr. & Stu. l. 1. c. 7. & l. 2. c. 15 Dyer, fol. 25. n. 159. & f. 95. n. 35. In. J. co. c. 8 which Law some a­scribe to Henry the first, Spec. Just. l. 1. a woman also whose Husband in his life time was seised in Fee, shall have the third part of his Estate, he being dead, and in some places the halfe, Lit. l. 1. c. 9 in some the whole for her Dower, F. N. b. fo. 150. P. Bract. l. 4. [...]r. 6. c. 13. n. 2. Dr. & Stu. Bri. 1. c. 10. if at least she be nine years old that she may claim a Dower: Lit. l. 1. c. 4 Flet. l. 5. c. 22. there is another sort of Dower which is free-hold also, namely Dower which is by consent, which is that that is agreed on before marriage at the Church door, or other­wise between the man and Wife, Lit. l. [...]. c. 4. Inst. Jur. com. c 9. Flc. l. 5. c. 22 Brac. l. 2. c. 39. breifly all Lands and Tenements which are either by bargain, gift, or any other contract, held for term of ones own life or anothers, are compre­hended under the name of Free-hold. Inst. Jur. com. c. 6 Bract. l. 2. c. 5. n. 7.

19. And as Fee Dyer, f. 213 n. 42. fol. 288. n. 55. so free Tenement or free-hold may be of a thing incorporall, as an office for life. Bro. tit. Te­nures, n. 25. Dyer, f. 211 n. 19.

Thus have I given you a description of e­states in Fee, Inheritances, and Free-holds, the third is a kind of possession or Tenure [Page 81] comprehended under the name of Chattells [...]lls, and they are those which we hold [...] Tearm of years, or at the will of another. [...]enant at will is two fold, viz. either by com­ [...]on Law, or by the custome of any Mannor, [...]hich is by Copy of the Court Roll, or by [...]erge, Inst. Jur. Com c. 2. 3. Lit. l. 1. c. 9. Kitch. fo. 102. b. Coo. l. 3. case Heydon fo. 8. a. b. & f. 9. But this kinde we referr to the [...]hapter of uses. Of which hereafter c. 4. of this Book. we all speake.

Of the Services which Inheritan­ces are bound unto.
TIT. III.

BEcause Services are reckoned amongst those things which are tearmed incorpo­ [...]l, we shall take a view of them; now there a certain service or Servitude which sub­ [...]cts one man to another, See. l. 1. c. 3. but it is not this which wee intend here to treat of, but that which subiects one Estate or Fee unto other. Yet is it like that other which ren­ [...]rs one man a Servant to another, for as at constitution is called, Jus Gentium, the [...]aw of Nations, which against nature sub­ [...]cts a man to the Power of another, so may also be said of Service or that constitution [...]hich subiects one house to another, and one state to another. And thus Services may [...] divided into such as appertain to Cities [...]nd such as are Rurall, Brac, l. 4. those which be­ [...]ng to Cities, and for the most part such as [Page 82] the Civil Law mentions, namely such [...] inherent in the very buildings, and the [...] fore called from the City Fees, because [...] call all buildings City Inheritances, tho [...] built in Villiages. Bract. ib. Of this kind are th [...] not to build a House higher, not to hin [...] lights or prospects, to convey and keep [...] Gutters and sincks from the yard or [...] of ones Neighbour, to lay a prop upon [...] ther mans Wall or ground for the supp [...] tance of a House, to beare an Incumberan [...] to have a Way, Road, or Passage. For thou [...] a Way and Road be Rurall & Country Se [...] vices, yet are they City also, when apply [...] to City Inheritances. For it often happe [...] that a neighbour hath a power and libe [...] of passing through a Yard belonging to [...] House, or of going up ones staires to [...] own chamber, Rural are such as are not in [...] rent to buildings but are wholly witho [...] them. And these also are almost the sa [...] which the Civill Law reckons [if we exce [...] those which the customes of Fees have intr [...] duced] as a Road, Path-way, Aqua duct, Dyer fo. 248. n. 80. & fo. 319. n. 7. drawing of water, folding of Cattell, pa [...] ring of Cattell, quenching of Lime, diggin [...] of Sand, taking of Stone, and the like. No [...] both the kindes of Services are either reall [...] personall, with relation to the thing or per­son to whom they are due.

1. Fee Servitude which both by our F [...] ­dists and Lawyers is called Service, is either military and noble, or Rustick and Ignoble Fulb. divis. of seign. and services f. 20. b. military is that which performs some du­ty belonging to military discipline, or some [Page 83] other thing that is honorable, and this also [...]s double, one which is due to the King only, Lit. l. 2. c. 8 the other to the Lord of the Fee, notwith­standing that he be Feodary to another, that which is due to the King is double also, name­ly Serjeanty and Castle-gard.

2. Serjeanty is either Grand or Petit, Grand is where any one in the name of his Fee is personally bound to perform any Of­fice or other honorable thing to the King, id [...]b. Flet. l. 1. c. 10. and l. 3. c. 16. which some also affirm may be due to a common Person Bract. l. 2. c. 35. n. 6. of this kinde is the bea­ring the Kings Standard or Spear in Warr, the leading & conduct of his Army, the per­forming the Office of Martiall, the sounding of a Horn at the incursion of any of the Kings Northern Enemies, to send an armed man, if himself will not goe, to fight under the King when ever necessity shall require, within the four Seas. to carry the Kings Sword before him at his Coronation, to per­form the Offices of Sewer, Taster, Carver, Butler, or Chamberlaine. Coo. l. 2. case Cromwell fo. 81. a. And in such Services all the Barons in ancient time were obliged.

3. Petit Serjeanty is that which renders to the King as an acknowledgement of the Tenure yearly, a Bow, Spear, Dagger, a paire of Gantle [...]s, or a pair of gold Spurrs, an Arrow, a Horse, or any such small thing which belongs to War. Now he that holds such a Fee, doth not perform any personall Duty but rather Patrimoniall and reall, and that certain: And therefore differs some­what from the very nature of a military Ser­vice, [Page 84] having a property of a different Species, [...]it. l. 2, c. 9. Inst. Jur. Com. 27. Broo. tit. Tenures 69. but Fleta will not have this duty exceed the value of half a mark. l. 1. c. 11.

4. Castle-gard we have defined to be a ser­vice due to the King only. Which is origi­nally true, because no man can erect a Ca­stle or Fort in the Kingdome without the Kings License; but in case the King gran­teth a Castle with all the liberties belonging to it, unto a Subject, he grants Castle-gard, also if there be any such Service due unto i [...] ▪ And for this reason this Service may as well belong to a Subject as the right of a Forrest Manwood par. 1. de. Jur. forset. pag. 87. Cov. col. 4. fol. 88. a. and Lit. c. Socage. It is a Service consisting in fortifying and defending any Castle of the Kings or another Lords as often as the Feodary shall require. And this is properly Knights Ser­vice when it requires the Person of the T [...] ­nant, but when it is converted into a certain pecuniary mulct, payable every year for the fortifying and guarding of a Castle, it is al­t [...]red from the nature of Knights Service. Tit. ib. Inst com. c. 27. Bro. tit. Tenures n. 58. F. n. b. fo. 259. A.

5. The second sort of Knights Service or Military which is due to common persons as well as to the King, is called Scutage Plow. fo. 126. 129. from Sculum, a sheild. And he that holds by this is obliged at his own Charges for a cer­tain number of daies to follow his Lord in the Warrs against the Scors: Lit. l. 2. c. 3. They who hold by an intire and whole Knights Fee, Camd. B [...]it. 111. which s [...]me determine to be 680. Acres of Land, some eight hundred Acres, some fif­teen pounds Sterling, some twenty pounds, 1. Ed. 2. c. 1. and others forty pounds, Smiths. Com.. c. 18. are bound [Page 85] to serve for the space of forty dayes, Bro. Te­nures n. 19. they which hold but by halfe a Knights Fee twen­ty daies, and so accordingly, Lit. l. 2. c, 1.

6. Now that certain differences between Lords and Feodaries, as well concerning Armes as the time of Serving, viz. whether from the time of shewing or perfecting, to be­gin, might be removed, it appears in most places, that it is by ioynt consent of Lords and Tenants agreed, that the Tenants shall pay yearly a certain summ of Money to their Lords according to the value of their Fee, and so to be freed from personall duties, id. ib. from whence the thing it self seems so changed by degrees, that that service which with our Ancestors was so incertain, is in most Fees at this day reduced to certainty and is called Scutage certain, Lit. l. 2. c. 5. that incer­tain kinde being in divers Mannors quite extinct, now this certain Seutage is Socage. Bro. tit. Te­nures 28. 29.

7. There are also other reall Services which at [...]end a Knights Fee, as the shadow doth the Body, as Homage, Fealty, Custody of Land and Heires, Releife, Marriage, Brac. l. 2. c. 35. Lit. l. 2. c. 4. for these no time hath hitherto extermi­nated. Polid virg. hist. ang. 16.

8. Homage which the Feodists call also, Hominium, Hottom. disp. de feod. 3. is a reall Service, Bri [...], c. 66. spec. J [...]s [...]. b. 3. Flet. l. 3. c. 26. which the Feodary yeilds regularly to his Lord at his first institution; by prostrating himself on both Knees at his Feet with his head un­covered, io [...]ning his hands and putting them between his Lords, who remains sitting, and pro [...]uncing these words or to the same [Page 86] effect. Hear Sir, I become your man from this day forward of Life and Limbe, and of earthly worship, and shall bear you Faith for the Lands I hold of you (and if it be not the King that receives the Homage) saving al­waies the faith which I owe unto our Sove­raigne Lord the King, so God me help, and the Contents of this Booke, which said, the Lord shall kisse him. Bract. l. 2. c. 35. n. 8. 9, Lit. sect. 2. l. 1. Inst. Com. c. 23. 17. E. 2. Brit. c. 68.

9. Ranulphus de Glanville, denieth, than Bishop who is consecrated, or a Woman may do Homage. l 9 Spec. 9. Inst. l. 1. But Fitzherbert N. B. 258. f. accor­ding to the Rule in the Register affirms, that a woman if single may swear Homage and Fealty to the King, when from him shee re­ceives Livery of her Lands, and our more modern Authors hold, that both Clergy and Women are subiect to this Service, although the termes of expression is a little different. For a Clergy man for that he hath set him­self a part for the more speciall service of God useth these words. I do Homage to you and shall bear your Faith for the Lands and Te­nements which I hold of you, saving alwaies the Faith which I owe unto the King our Soveraine; Inst. Com. c. 23. Lit. l. 2. c. 1. and a single woman doing Ho­mage doth not say unto her Lord, I become your Woman, for that it is not convenient that she should be another mans woman, then her Husbands, whom she shall marry. But she shall pronounce the same words which are prescribed to the Clergy, Id. ib. and a wo­man who is married shall do Homage by her Husband. Id. ib.

10. If it happen that any one h [...]lds divers [Page 87] Fees by Knights Service of diverse Lords, he [...]all do Homage to them all, but shall use [...]ese words in the end, saving the faith which owe unto our Soveraine Lord the King, and [...]nto my other Lords. id. ib.

11. Now it is to be understood that Ho­ [...]age is alwaies annexed to Knights service, [...]ut not solely to it, for Tenant in Socage [...]ay also do it. Brac. l. 2. c. 35. n. 6.

12. Homage is divided into new, and an­ [...]ient [called Auncestrell] new is that which [...] performed by him who hath a new Fee, Instit Com. c. 28. Lit. l. 2. c. 7. [...]ncient by him who hath an ancient one, [...]nd that ancient hath a double effect, one [...]hat the Lord shall secure to his Tenant his Estate or fee, or (as our Authors say) shall war­ [...]ant it against all men: The other, that he [...]hall save him quiet and harmlesse from any Services of another Lord, at least in respect or relation to that Fee.

13. Fealty which our Authors also call Fiducia, is a reall Service Brit. c. 66. due from eve­ry Tenant to his Lord at his first induction, whether the Fee be noble or ignoble, for such is the disposition of this contract, that whoe­ver holds by Fealty, only holds the most freely of any, one except the King, Smith Com. l. 3. c. 8. for no Subiect can hold without Fealty, Lit. l. 2. c. 5. west. Simbol. l. 2. Sec. 303. and an­ciently he that broke faith with his Lord did forthwith forfeit his Estate. Bract. l. 5. tr. 3. c. 6. n. 3.

14. Fealty is double, one is generall, con­firmed by the Oath of every Subiect to the sepremacy. The other speciall; due unto the Lord of the F [...]e, Le grand constumier de Normand B. Fle. l. 3. c. 16. the first is constantly ex­acted at Sheriffs Courts, and view of frank-Pledge [Page 88] or Court Leets, from all which in the verge or precinct of the County or Leet, who are twelve years old, otherwise they have no warrant to continue in their Estates, Brac. l. 3. tr. 2. c 1. n 1. yet our Ancestors more ancient used not to im­pose this Oath upon any, under fourteen or fifteen id. ib. Flet. l. 1. c. 27. years of age, the form of which Bracton thus explaines. They shall swear that they will not receive or entertain, per­sons out-lawed, Murderers, Robbers, or Burglaries. Nor that they will consent or connive at them or their Receivers, and that if they shall know any such, they will atta [...] them: and that if they shall hear any H [...] and Cry, they shall immediately follow with their Family and Servants, Brac. cod. Flet. cod. and Britt [...] more briefely, c. 12. when he saith that they shall swear to bear saith unto the King, and that they shall neither be Felons themselves nor consent to felonies.

15 The form of fealty speciall is double▪ One which is proper to freemen, the other to Villaines. When a freeman swears fealty to his Lord, he laies his right hand upon the Book and saith as followeth, Know you this my Lord N. that J. M. shall be faithfull and true unto you, and faith to you shall bear for the Lands which I hold of you at the times assigned; So help me God and all Saints. Lit. l. 2. c. 2. When a Villaine swears fealty, hee shall holde his right hand a little higher then the Booke, so that he touch it not, and shall say. Know you this my Lord N. that J. M. shall from this day for­ward be true and faithfull to you, and faith [Page 89] to you, shall beare for the Land which I hold of you in Villainage, and I shall be justified by you in body and goods, so help me God and all Saints. 14. E. 1. c. 2. Spec. Inst. l. 3.

16. Custody or Guard is a reall service proper to a Knights fee, by which the Lord hath the guard and care of the fee, and that to his owne use, without giving any account during the minority of the Infant, his Te­nant: As also the Education and Guard of the Body of the Heir. Now every one is with us an Infant till 21. yeares of age, if a Male; for our Law presumes, that Knights service cannot be duely performed till that age. Fortesc. c. 44. But we have spoken enough of this already: Only this we shall adde, That the Lord may, if he please, alien this his title of Guardian­ship as wel as any other thing which he hath; whence it is, that there is a double Guardian, namely, one of Right, as the Lord of the fee: The other in Fait, which is, he to whom the Lord hath aliened the Guard of the Heir and Lands, or of the Heir only. Inst. com. c. 24.

17. Releife is a reall service or Patrimo­niall (though some call it aptly a fruit or be­neficiall profit of a service) Coo. l. 3. case Penantes, fo. 66. a. due both to Knights service Brac. l. 2. c. 4. Lit. l. 2. c. 4. Brit. c. 66. fol. 165. a. Flet. l. 3 c. 17. and Socage. By which the Feodary, Tenant by Knights service, whether male or female, being at full age at the death of the Ancestor (viz. the male 27. the female 14. years of age) is obliged to pay a certain summe of money. Tenant in So­cage paying so much for Releife as he payes Lit. l. 2. c. 5. 19. H. 7. c. 15. Bro. Tenures, 76 Flet. l. 3. c. 17. yearly by way of Rent to his Lord. At what age soever hee be at the death of his Ance­stor, [Page 90] & that without delay, Dr. Stu. l. 1 c. 7. Flet. l. 1. c. 9. so that the first year he payeth his Rent double, one by way of Releif, the other part by way of Rent Flet. l. 3. c. 17.. For the Lord may immediately distrain, that is, take whatever he finds upon the Estate by way of pledy, untill he shall be satisfied for his Releife Littl. l. 2. c. 5.. So if one hold by fealty, and a pound of Pepper, the Heir shall pay the first yeare two pounds of Pepper. And the Law is the same, where the Tenant payes for his Rent yearly a certain number of Capons or Hens, or a pair of Gloves, or so many bush­els of Corn, or the like. But if in regard of the season the Tenant cannot pay Releife presently, then the Lord ought to expect un­till a convenient time. As in case hee be bound to pay a Rose, or a bushell of Roses at the Feast of St John Baptist: Here, if he dye in Winter, the Heir ought not to be distrey­ned by the Lord, untill the season come that Roses may be had Littl. ib.. This the Feodists de­fine to be a Present or Gratuity which the new Vassall bestows upon his Lord for ad­mission upon the death of another: Or for a­ny other cause which shall occasion the Estate to come unto him, in regard it is now taken up by a new one Hotoman, verb. feodalis ver. Relevium..

18. And it is to be observed, that the Heirs of Earls or Barons, ar others, that hold of the King in Capite (that is, in right of his Crown) by Knights service. If they are at full age at the death of their Ancestors, shall pay their accustomed Releife, Viz. an Earle 100. pounds, a Baron an Hundred Marks. The Heir of a Knight for one Knights Fee [Page 91] 100. shillings: And if there be any who hold [...]y a double Knights fee 200. shillings, and [...]o according to the rate, Mag. Ch. c. 2. Instit. com. c. 24. Flet. l. 3. c. 17. which is also [...]rue in the cases of other Lords of Fees. Brac. l. 2. c. 36. Brit. c. 69.

19. The Ancients derived this word Re­ [...]eife, a Relevando, because the Inheritance which lay still by the death of the Ancestor, was raised up into the hands of the Heir: And for this raising up, there should be a cer­ [...]ain fine or acknowledgment paid by the Heir, and this they termed Releif. Brac. ib. Brit. ib.

20. Marriage is a reall service belonging [...]o a Knights fee, by which the Lord of the [...]ee hath a power of bestowing his Feodary in Marriage according to his pleasure, or at least of claiming the value of the Marriage, [...]f so be that he be under age at the day of the death of his Ancestor; but of this we have spoken enough before. Now Marriage is an Equivocall word, since it signifies also the fee it selfe which is given in Matrymony Brac. l. 2. c. 34. & 39.. And this shall suffice of services that are noble.

21. That service which [...]s rurall and ig­noble, is by us called Socage, from the French word (Soc) which signifieth a Plough, or Soccage, as Sockage: The cause of which Appellation was, that these kind of Tenants were by our Predecessors bound to the ser­vice of the Soc, or Plough, and came yearly when the Season required, with their Oxen to plough and sow some part of their Lords Land. But by processe of time it is now be­come so, that these kinds of works are in most places changed into a certain Rent, although [Page 92] the ancient name of the service remains still. Lit. l. 2. c. 5. Inst. com. c. 31. So that this Tenure which at first was slightly esteemed of, is now accounted mud the better; for the originall labours are con­verted into a moderate summe of money, on­ly the value of the yearly rent is exacted for Reliefe, and it is obliged neither to Gua [...] or Marriage. Dyer, fol. 362. n. 18.

22. Wherefore Socage which at first was purely a Villain and Rural service, is now [...] ­vided into free and Villain. Free Socage [...] that which in lieu of villain services payes [...] the Lord a certain annuall rent. Brac. l. 2. c. 35. n. 1. Vill [...] Socage is double, that ancient, Viz. by which there is a certain service performed by reason of the Fee, for this is even still in use Lit. l. 2. c. 5 Inst. corn. c. 31. And the other which is pure villainage, in which there is obligation to incertain ser­vices, and undetermined, where one cannot tell over night what service will be required next morning, Viz. where any one by rea­son of his fee or person is ingaged to do what­soever is commanded him. Brac. l. 2. c. 8. n. 3. vet. N. B fol. 49. Brac. l. 1. c. 11. n. 1. Bri. c. 66. fo. 165 b. But our Mo­derns do not subject those who hold in Villai­nage to such uncertain services. But call that villainage where a villain Tenant according to the custome of a Mannour or will of the Lord, or a Free-man by reason of his fee, performs service duties to the Lord of the Fee: As to carry Dung out of a City, or ou [...] of the Mannor of the Lord to his Lords lands, and the like. Lit. l. 2. c. 11. Inst. com. c. 34. Bro. c. 66. n. 9.

23. That Fee therefore which is held by free Socage, enjoyes the best Conditions of any other at this day, being freed from the [Page 93] incumbrances of Guard and Marriage, Smith Com. l. 3. c. 5. which to Tenants by Knights service often falls out most heavy. But this at present, if taken according to the utmost latitude of its signification, is understood to include all o­ther kinds of Tenures, which are held by a certain Rent, free from Guard and Marri­age, Brit. c. 66. as those which are held by Franck­almaign, Id. ib. or in ancient Demesne of the King Id. lb. Lit. c. Socage. by fee-farm, Brit. ib. in free Banck Id. ib. or Burgage. Bro. tenures n. 5. & 77.

24. The service of Franck-almaign, if at least we may call that a service, which payes neither fealty nor any terrene duty to the Donor, is where a fee is given to an Abbot or Prior & their Covent, or to a Dean & Chap­ter, to a Mr. of an Hospital, or any Body or Person Ecclesiasticall under that capacity or notion: That they should pray for the souls of the Donor and his Family living or dead. But this at present can be done only by the Supream power; for that there is a Statute Westminst. which prohibits any from granting their fee-simple to be held of himselfe. Wherefore whosoever from that time [the King excep­ted] gave an Estate in Franck-almaign, did in vaine adde that word [Franck-almaign] because it wrought nothing, but that the Do­nees held the same Estate of the Superiour Lord by the same services which the Donor held it, whose act could prejudice none but himselfe. Bro. tenures 61. But it seems the Capitall Lord might remit these services, and so make it Frank-almaign. Id. ib. 71. 97.

[Page 94] The service of ancient Demesne is that which the Tenants of the ancient Demesn [...] of the King performed. Now ancient D [...] ­mesne is all that which was immediately hel [...] of the King St. Edward, o [...] [...]illiam the Con­querour. Term. law. Ancient Demes. For the later tooke an exact survey of the whole Kingdome, so that he [...] might know of what Lord every rodd [...] ground within it was holden: This survey he caused to be entred into a book, which is yet remaining in the publique Exchequer, by him stiled [...]nchester Roll, or Doom [...]day. Camd. Br. c. 94. Coo. pref. to his 3 d. book. Now by ancient Demesne, wee under­stand all those Mannors which were there assigned and ascribed to the King, namely, because they were the Kings Demesne [...] Ancient: and the service by which these Te­nants hold of the King is Socage. F. N. B. fo. 13. D. & 14. B. C. But these had a double manner of holding, V [...]. some by Charter, and were called the Kings free Tenants: Others by Seales, which wee call Copies of Court Rolls: Or by the Verge, and these were stiled the Kings free Sockmans. Brac. l. 2. c. 8. n. 4. Brit. c. 66. F. N. B. fol. 14. D. Flet. l. 1. c. 8. Neither of these are Tenants at the will of the Lord, but by services first due, according to the Custome of the Man­no [...]. Kitch. fol. 99. Brit. c. 66. Many Writers have treated of the liberties and priviledges which these Te­nants had, that they might have the greater leisure to attend the Kings businesse. Brit. ib. F. N. B. ib Lit. l. 2. [...]st. com. c. 35. Flet. l. 1 c. 8.

26. The service which is performed also by Tenants in Fee-farm, is Socage, in re­gard Fee-farm cannot be where Guard and Marriage are reserved to the Lord by Char­ter. Brit. ib. And the same is to be understood of [Page 95] Tenants in Franck Banck. Brit. ib. Br. l. 4. tr. 6. c. 13. n. 2.

27. Burgage is a certain Rent payable by those which inhabite the ancient Bur­roughs or Cities (which spring from them) of this Kingdome, either to the King, or a­nother Lord to whom the King hath granted it: And this also is called Socage. Littl. l. 2. c. 10.

28. Having passed so cursorily over these, wee are to know, that there be many more Fee-services behind, which are partly proper to Tenants in Knights service, partly to So­cage, and some common even to both, as secta ad curiam, secta ad molendinum, Herriot, Aide, to make the Son a Knight, or to marry the Daughter, Quit-Rents, and others, which for that they depend upon divers Cu­stomes of severall places, and upon the seve­rall will of Lords, is impossible punctually to reckon. Bro. Tit. Tenures, n. 50. & 53. & 58.

29. Secta ad Curiam is a service which binds the Tenant to frequent the Court of his Lord: F. N. B. fol. 158. But they are not Feodaries a­lone who are obliged to this; For wee have mention made of a four-fold suit of Court. One by Covenant and Oligation, Viz. when another who is not the Lord of my Fee, Co­venants with me or my Ancestors, though not his Feodaries, to performe this suite of Court. Another by Custome, where any one and his Ancestors time out of mind, were wont to come to the Court of another and his Ancestors, though not Lord of their Fee. The third we may call a Servile suit, which the Feodary performs to the Lord under the notion of service. The fourth is Royall, by [Page 96] which are found to goe twice a year to the Sheriffs Courts, or Leet Courts, that they may not be ignorant of what is done there for the peace of the Common-wealth. Now our Authors call it Royall (though by cor­ruption some rearm it reall) because the maine reason of it is, to perform Legiance to the King, for there all above 12. yeares old Termes of the Law, Tit. sug. take the Oath before mentioned.

30. Secta ad molendinum is a service by which the Feodaries, as bound by Custome to carry their Corn to be ground at the Mill of their Lord. F. N. B. sol. 122.

31. Heriot, otherwise Hariat, is com­pounded of the Saxon words (Here & Geat) Here signifying an Army, and Geat a Jour­ney: and it was a Tribute payedunto the Lord when hee went to Warre. Lamb. [...], Vero. Heriot. Bracton sayes that Heriot is alone with Releife: L. 2. c. 36. And Britton, C. 69. & Flet. l. 1. c. 18. That it is the Gift of the Feoda­ry at his Death, given to his Lord, by which he leaves unto him the best Beast he hath, or some other thing according to Assign­ment. And he saith, that this doth not touch the Lord, nor the Heir or Inheritance, not that it is to be likened to Releif. But that it rather springs from the love and courtesie of the Tenant, coming either from a Right or necessity of Duty, and that both from vil­lains and Free-Tenants. Heriot is at this day a service by which the Tenant is bound to leave to his Lord the best Beast, or for de­fect of that, some other moveable which hee hath at the time of his Death. And this is two-sold, namely, servile, which Tenant in [Page 97] Fee simple payeth, or constumary, which is [...]yed by Tenant for life according to the [...]ustome. Bro. Tit. Heriot. n. 5.

Of Uses and Profits.
TIT. IV.

IT appears from what hath been said, that Services are either reall or personall, Brac. l. 4. tr. 1. c. 39. [...] reall we have already spoken, personall [...]re such as are due unto the person, Id. ibid. and [...]is kind is twofold, one due from the per­ [...]on of one, to the person of another, of which [...]lso we have made mention before, the other which is due from an estate to a person, of which sort are profits, uses, Habitation; where­ [...]re uses and profits, in respect of the per­ [...]on to whom they are due is a Right in re­ [...]pect of the thing which is due, a Ser­ [...]ice. Id. l. 4. tr. 1. c. 37. n. 1.

1. Since there are none in England be­sides the Soveraigne power, who hath a ple­nary and absolute dominion over immovea­bles, it is not hard to discern who they are, that are Possessors of estates, as to the pro­fits, the estates being not wholly theirs, which we shall tearm usufructuarii; and who nor, namely whether all Subjects, by what Title soever they hold, or onely some who hold by this or that Title, for those which have a Fee, have onely a power profitable, Wesenbec. d [...] feod. c. 1. n. 4. [Page 98] which according to the Feodists ceaseth, they violate the faith due to their Lord, [...] not by our Law, save in Case of Felony; Stanf. plac. Coron. l. 3. c. 30 now he which hath any use or profits lo [...] hath some way or other a power also, Bra. l. 4, tr. 1. c. 36. n. 2. Moreover he which hath a Fee-farm, who [...] the Civill Law of the Romanes called E [...] phytenticus, ▪ vectigal ager. which is one that hath an [...] state to improve, although he have a perp [...] tuity, yet he payes a yearly Rent, by [...] of an acknowledgement of the Seign [...] rie. Brit. c. 66. Lastly, he that hath a Freehold and abuseth it, is liable to an Action [...] Waste, F. n. b. fo. 55 Dr. Stu. l. 1. c 23 flet. l, 1. c. 12 which should not be, were [...] sole Lord, and had absolute power in [...] disposing of it; but Bracton is very clear [...] declaring what Titles our Lawyers inc [...] under the notion of uses and profits, for [...] stinguishing between a Free-hold, and a [...] state in profits; he is much more diligent [...] distinguishing between Fee, l, 4, tr, 1, c. 36 Plow, fo, 83, and F [...] Farm, or farming of the profits, for th [...] in those the possessor hath a perpetuity, in the [...] only an estate for life, whence it follows, th [...] he onely is an usufructuary in an Estate [...] us, who hath Lands or Tenements for Te [...] of years, or at the will of another, or [...] who hath Lands by way of pledge or security which we call Mortgage, or by way of E [...] cution, whom we call (according to the [...] versity of the cause) Tenant by Elegit, Tenant by Statute Staple, or Statute Merchant or lastly, he who hath the Lands of an [...] in Right of Guardianship, untill he come to full age.

[Page 99] Now an estate of profits may be created with us, either by gift and bequest, or by conditional agreement, Inst. com. c. 5 Flet l. 1. c. 12. and it appears that our ancestors did sever the profits of a Fee from the propriety, untill it was changed by Act of Parliament, 27. H. 8. c. 10. Co [...]. l. 1. Chudleys Case. but those estates which are held by Copy of Court Roll, or by the Verge, at the will of the Lord, cannot be Leased out without the consent of the Lord, above a year, Instit. com nor can they be bequeath­ed or aliened by any agreement, without be­ing first surrendred into the hands of the Lord, and from thence received by him to whom the former Tenant desires to alienate them. Id c. 15.

3. It is held also amongst us, that uses and profits may be of those things which are extinguished by use and daily change, so that without all doubt one may bequeath or by agreement create an use of Servants, Mo­ney, Oxen, Cowes, Sheep, Corn, or any such like things. Bro: Tit Te­nures 133: Plow: 542:

4. Now these kinds of uses and profits are dissolved, either by the death of the Usufru­ctuary, Instit: com. c: 5: as Copyholds, or for Treason, in which Case the Delinquent looseth all his goods, and life also, F. n: b. 2. 3: 201 or by processe of time, namely when the years for which they were made are expired, by Consolidation, Co. l. 2: fo. 17: a, Plow: 419: 420: when the Usufructuary purchaseth the pro­perty, and lastly through the default of the usufructuary, as for waste, or letting his estate to another, contrary to Right and Law. Flet, l: 1: c: 14 Mag: char: c: 4, Westmin, 1, c: 47: Stat, Glo: 1 5: Westmin, 2: c: 35: Dyer: fo: 30: 42: 178: F: n: b: fo: 55,

Of Ʋse and Habitation.
TIT. V.

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

Of Customes and Prescriptions.
TIT. VI.

IT hath been said before, how that Title and Dominion over corporall things is through a just act, and purchase transfer­red by Livery: Now we are to declare how it may be transferred without by Custome, namely by a long, continuall, and peaceable and quiet possession, through usage and time, [Page 101] and without Livery, Brac l. 2. c. 22. Flel. l. 3. c. 15. for Prescription hath sometimes the force of Livery. Brit. c. 4. Brac: l: 4: tr, 1, c: 38 n, 13

1. Justinian for the most part puts a diffe­rence between Custome and Prescription, as that the first should be of moveables, the later of immoveables, Prat us lexi. verb, p [...]aescrip, yet they are often used promiscuously. Vultaeius com sup, Justin: n, 6, and 10,

2. Moveables are not alwayes taken the lame way by Custome, for such as are bought in a publick Fair or Market, although stoln, are immediately the buyers, the sale being legall, viz. the Toll, if there be any due, payed, and a coutract entred, so that the Owne [...] can no way be evicted: but a Horse v, tit, barg, & sale, l, tit, 24. Dier, which is stoln, is thus by the Custome made ones own, viz. If it be ridden in an open Market or Fair, by the space of a full hour, fo, 77. n, 66, or otherwise shall be led there, continually and openly, that he may be shown, and f 2 and 3, Pb, and Mary c: 7: then the Seller coming to him that keeps the Toll book, shewing the Horse, and telling his own Christen name, and surname, as also his possession and place of dwelling, proving all this by one witnesse, who is well known unto him that keeps the Toll, he is to enter it into the Book. 31 Eliz, c. 12

3. Any Beast or Cattell found straying in the fee of another is by the Custome, after publick Proclamation made in the neigh­bouring markets, due to the Lord of the Fee, unlesse the owner challenge it within a year and a day, Brit, Dr, Stu, 2, c, 3, & 51: so also are such things which are left and forsaken, which we call waifes, Id. ib: as also such as are brought to Land from Shipwracks, if they fall not under [Page 102] the notion of wrecks, (k) but all other things whether given or found, or happening through their over heavinesse do not follow the same rule, much lesse things which are stoln; New book of Entries, verb. Pro. Brac. l. 2. c. 5. n. 2. Brit. c. 17. yet the Citizens of London are said to have a Priviledge, that whatsoever any one buyes appertaining to his own Trade, and brought bona fide to his shop to be bought, it becomes immediately his own without all fear of eviction. Dyer s. 121 n. 16.

4. Prescription is a legall definition, or li­mit of time ordained for this end, that in all transactions for peace sake there may be an opportunity observed, all Prescripti­ons tending to this, that nothing may be done in the Common wealth later or sooner, then seems just and equall. Moreover in the mannaging of affairs, it is fitting that we should have limits of time prefixed, both to quicken industry, and avoid precipita­tion. Prataeus u­bi supra.

5. But Prescription differs from Custome, that onely coming from possession, adding a new Right, and adjoyning a new Title to the thing acquired, having substracted the o­ther, whereas Custome doth nothing so, for that it onely imparts its own Lawes to those by whom it took its Originall, and by whose usage and consent it receives perfection. Conna. l. 1. Commen. Jur. Civil. 10. n. 8.

6. Prescription although in the common acceptation it be such a portion of time, as exceeds the memory of man; Dr. Stu. l. 1. c. 8. Kitchin 104. yet hath it much of diversity amongst us; but for orders sa [...]e we have thought fit to divide it thus, viz. into that which works to the secure avoiding [Page 103] of a losse, and that which works to the certain [...]cquiring of a propriety.

7. For the avoiding of dammage, this is [...]heif, where any sum of money is adjudged, [...]o the King by any Statute for an offence, [...]here the offenders may after two years clap­ [...]ed, prescribe to themselves immunity, but in Case where it is due to the King, and ano­ther as Informer, then against the suit of the King, after two years, and against the In­formation of the common person after one year, 31 Eliz. c. 5 unlesse such penall Statute doth particularly prefixe a certain time, and in this Case there is great difference in Statutes, some allowing one year, 3 H. 7. c. 1. 2 and 3 Ph. & Mar. c. 3. and & 5. c. 2. 1 Eliz. c. 7. 14. c. 11. 31. c. 4. some one year and a day, 23 Eliz. c. 1 some two years, 8 R. 2, c. 4. 5 Ed. 6. c. 14. some three, 8 H. 6. c. 9. 1 H. 8. c. 4. 39 Eliz. c: 1 some four, 7 H: 8: c: 3: some a moneth, 23: Eliz: c. 2 some two moneths, 23 H: 6, c, 15 1 E: 6: c: 1, some six dayes, 5 Eliz: c: 5, and 15: and some fifteen: 11 H, 7: c, 7, 7 H, 8: c: 7: besides, according to the common Law, if a man up­on an indictment of murder be acquitted, he may after a year and a day plead Prescription against any appeal either of the Wife or b F, n b. fo: 25: 9 Brit: c: 28, fo: 66, b: next of Kinne of the party slain. (s)

8. Things immoveable, whether corpo­rall or incorporall have divers Prescriptions. The most usuall is that which is called the longest, and is extended beyond the memory of man, for whosoever will prescribe a­gainst another the maintaining of a Chap­lain, to celebrate Divine Service in any Church, new bo: Ent: Act. in Chaplein or the repairing of a Church, Eod: tit. in re­parations. or that being present at the Election of the Master of an Hospitall Eod: tit: Qua­re im edit in Hospitall. or an Annui­ty, Eod. tit. An­nuity in corp: politique. or the Cognisance of any Plea in his [Page 104] Court, eod. serm. de breif. or any service in his fee, eod. Replev. in amerciament. F. n, b. fo, 122: he mu [...] prove them to have been time out of mind, or he doth nothing, nor do we mean any o­ther then this, when we speak generally of Prescription. Dr. & Stu: l, 1, c: 8.

9. But there are Prescriptions of short [...] time as of 40 years in the way of Tithing, 2, & 3: E. 6. c. 13. five years for Lands and Tenements in case of a Fine acknowledged lawfully Dr. Stu. l. 1 c. 25, l. 2, c: 14, Lit. l. 3: c, 7: Inst com: c: 27: Plow 357, Dier fo: 72: n: 3: of three years, in Case of Lands and Tenements held, gotten by forcbile Entry, and held so long in quiet possession, 8: H: 6: c: 9: of a year and a day for a villain, to assent his liberty against his Lord, if he have continued so long in ancient Demesne, or in any of the Kings Ci­ties, or Towns, without being claimed o [...] molested, Flet: l, 2, c, 51 F, n, b, fo: 77: as also for the Confirmation o [...] any Deed made by one who is in Prison, un­lesse he who made it do in the interim re­voke it, Li [...]: l: 3: c: 7: Brac: l, 4, tr, 1, c, 2. n, 7, Brit, c, 42 Plow, f: 357, and 372: new Terms ver: non: claim: so also for the hindering the En­try of him who having omitted continuall claim in case of his being uniustly disseised of those Lands and Tenements if he shall en­devor to recover them so coming by the right of Succession, to the Heir of the Disseisor. Brit: c: 34 Perk: grants, 29

10. No prescription of time shal prejudice the Supream Power; Id, c, 34, Bra: l: 2, c, 5, n, 7, nor any Lord, but that he may challenge the perquisite of his villain. Brac: ib,

11. Nor is there a Prescription in all things: as for example, not in those which are not subiect to commerce nor in those of which the Crown is properly sole Lord Lit: l, 2, c, 11, nor where the use is repugnant to reason and good manners, Id, ib: Brac, tr, nor in case where an aliena­tion cannot be made without an instrument, Brac, l: 2, c 19 n 4, 1, c: 38▪, n 13 [Page 105] and it is agreed amongst some of what things a prescription cannot be, and received ge­nerall with us that no prescription in Lands maketh a right. Dr. Stu. l. 1. c. 8.

12. Nor can a prescription be of those pertinencies whose principles have not a perpetuall and durable continuance, Dier. fo. 70. n. 40. or of those things whereof no one can tell what he or his Ancestors particulerly, whose Estate he hath, did possess. Id. fo. 71. n. 42▪ And lastly a Prescrip­tion is of no validity against a Statute after­wards made. Id. of. 373. n. 13.

13. It was much controverted among the Ancients, how long after one might bring his Writ of Right, after the title or Right to Lands or Tenements, &c. have laine dor­mant, or his Assise or Writ of entry to gain a possession as it were lost by him to whom it appertained, Thaleat. Digest. br. l. 10. c. 21. but this whole Controversy is composed by the prudence of Parliament, which hath provided and fitted apt remedies for the difference in each case. 32. H. 8. c. 2. Coo. l. 4. Be­vils Case fo. 10. [...].

Of Gifts.
TIT. VII.

THere are many waies of Acquisition by the civill Law, viz. By way of Gift, suc­cession, Testament, and others as shall ap­pear hereafter, Bract. l. 2. c. 4. Flet. l. 3. c. 2. but in regard, that a­mongst all the other causes, the most great, [Page 106] known and famous is that of Donation or gift, therefore it doth worthily challenge the first place, for that by it, there is a more great and frequent acquisition then any other. Brac. cod. c. 5. n. 2. Brit. c. 34.

1. Donation is a certain institution which proceeding out of meer Courtesie and will without any coercive or compulsive Law or Right transfers a thing unto another. And (to give) is to render a thing his that receivs it effectually, otherwise that Donation or Gi­ving were uselesse, which could be revoked and made void. Bract. eod. n. 2. Brit. ib. Flet. l. 3.

2. Our Authors do frequently call a Do­nation a Feoffment, but the word Donation hath a greater latitude; for that it doth not only comprehend a free alienation of immo­veables, but of some moveables also, Bract. l. 2. c. 26. yet in Lands, these appellations are distinguish­ed thus. A Feoffment is of a Fee simple to the Donee or Feoffee, and a Donation or Gift is of an Estate taile. Lit. l. 1. c. 6.

3. Donation in the largest signification, is thus divided, viz. That it is either a­mongst those who are still living, or upon occasion of Death. Of which we shall speak hereafter. Brac. l. 2, c. 5. Flet. l. 2. c. 57. Of gifts some are simple and pure; as namely, those which proceed, no Law or right, either civill or naturall inforcing, no Reward, Fear, or Force inter­veneing, from the meer free bounty of the Donor, and where the Donor will not in a­ny case that the thing given should revert to him; Brac. l. 2. c. 5. n. 3. and l. 2. c. 10. Flet. l. 3. c. 3. and c. 8 another is from a future Cause, namely where any cause is interposed for which a thing shall or shall not be, Dier fo. 33. n. 34. under [Page 107] which kinde, fall gifts by reason of Marri­riage, Dower, Glan. l. 7. c. 1. and c. 18. Bract. l. 2. c. 7. Flet. l. 3. c. 9. or Death, &c. As if one gives any thing with such an intention that it shall be the Donees when a subsequent thing is performed. And these kinde of Gifts are not properly Donations when they are conditionall, Bract. ib. Bri. c. 34. F. N. B. f. 205. h. Flet. l. 3. c. 11. but Donation is sometimes with relation to a cause past, Brit. c. 35. lit. c. 5. fo. 76 and some­time, with relation both to past and future causes, Plowden fo. 455 n Bract. l. 2. c. 5. and some Donations are free and pure, some under conditions and suspended, 3. Brit. c. 35. F. N. B. fo. 205. d. Plow. fo. 30. and. 32. some absolute and large, some strict and limited to certain Heires, and some exclu­ding Succession. Bract. l. 2. c. 7. Brit. c. 35. Doct. Stu. l. 1. c. 24. l. 2. c. 6. Lit. l. 1. c. 23. Flet. l. 3. c. 3. So also some Donations are by writing, some without. Dr. Stu. l. 1. c. 16. Bract. l. 2. c. 16. Brit. c. 39. Flet. l. 3. c. 9.

4. Wherefore we are to see who can give and who not, and it is generally to be un­derstood, that every one, who by Law and Right are not prohibited, may give, Bract. cod. n. 4. Flet. l. 3. c. 3. now all those are prohibited, who have not a ge­nerall and free administration of what they have, as Wards who are under tuition and pupillage, not being able to govern them­selves, yet they may receive and render their condition better, but they cannot give either with or without the authority of their Guar­dians: So neither one that is deafe and whol­ly deprived of his hearing, but it is otherwise if he can hear, though with much difficulty, the same is also to be understood of one that is dumb and cannot speak. Yet (according to the opinion of some) they may consent by signes & nods, but it is generally held that he who is dumb can not make a gift, because he cannot consent to it; so neither can a mad man work [Page 108] that is not Compos mentis, unlesse he injoy any Lucida intervalla, Id. eod. Brit. c. 34. but the Church executes in the stead of a Ward. Bract. eod. Brit. c. 54. Flet. l. 3. c. 3.

5. He cannot make a gift who is a Cap­tive so long as he is in the custody and under the power of his Enemies, because he cannot possess who is possst by others; not make a Gift effectually, seeing he possesseth nothing, Bract. l. 2. c. 8 n. 4. Dr. St. l. 2. c. 43. the same also for the very same reason, may be said of a Servant; for that he posses­seth nothing so long as himself is in the pos­session of others, Bract. l. 2. c. 16. yet it seemes he may give any such thing, whereof his Lord hath not as yet taken possession or Scisin. Lit. c. Vall.

6. Formerly a Leaper could not make a Gift, as being put out of the society of men, Bract. l. 2. c. 5. Brit. c. 34. nor hath a Bastard any Heirs to whom he may give effectually under that notion, unless it be those who are lawfully begotten of his own Body. Bract. and Brit. ib. Perk. tit. Grant. 48.

7. He that is attainted of Treason, or con­victed of any other capitall offence, cannot make a gift after the Felony committed; if so be he be afterwards iudicially convict and condemned by sentence, Bract. l. 2. c. 13. Brit. c. 34 Stanf. Pla. co. l. 3. c. 32. Flet. l. 3. c, 7. and l. 3. c. 10. Fulbeck. Seigniories f. 26. Perkins Grants 29. yet in some ca­ses he may before conviction make a gift of Chattells. Vid. next Chapter.

8. Nor can any one give who hath not Seisin of the thing given: except the King only, Dyer fo. 108. n. 28. 29. 30. which according to the ancients is true also, notwithstanding that he have Do­minion and receives Services. Eract. c. 5. Spec. Just. l. 2. c. de contractes Flet. l. 5. c. 15.

9. Nor are gifts made between man and wife worth any thing, for a man cannot give [Page 109] to his wife, nor e converso, during coverture: Because such gifts between such persons are prohibited. But if they be made before mar­riage, or after Divorce, they are valid, pro­vided they be not upon the score of sub­sequent marriage; yet a man may by his last Will and Testament, give a Fee simple to his wife, and the reason of the difference is; because a will is not of force before the death of the Testator, Lit. l. 2. c. 10. lib. Assis. pla. 60 and then the Husband and wife cease to be one and the same person. Bro. devise 34

10. Nor can any man effectually give that which is anothers; Bract. l. 2. c. 24. Plow. fol. 528. nor can one who is beyond Sea according to some, Glan. l. 7. c. 1 make a gift, but others maintain the contrary, which is the better opinion. Bract. c. 5. n. 8 The wife can­not make a gift without the Husband, nor can the Husband without the wife of such lands as are the Wives. Brit. c. 34. F. n. b. f. 163. A. B. C. D.

11. Moreover the Statutes of this Com­mon-Wealth have set such bounds to Dona­tions and Gifts that they permit not any man to make gifts to the defrauding of his credi­tors, beyond his limits. 13 Eliz. c. 5. & 27 Eliz. c. 4

12. There are also some who cannot make Gifts without the consent of others, as Arch-Bishopps Bishops, Abbots, and Priors, Can­not give Lands without the consent of the King, or some other of their Lords. Because the consent of all them whom the thing may any way concern is necessary and requisite, Bract. d. c. 5. n. 7. Brit. d. c. 34. F. n. b. fol. 194. & 195. whence it is that they who hold of the King cannot make a gift of their Lands, with­out his consent, Flet. l. 3. c. 3. nor can the Parsons of [Page 110] Churches because they hold nothing but in right of the Church. Wherefore they can­not make a Gift, alienation, or change, with­out the consent of the Bishop and Patron, unlesse it be so that the condition of the Church be bettered thereby: Yet these want not some who affirm them uncapable of doing that without the aforesaid consent. Bract. l. 2. c. 11. Flet. l. 3. c. 4

13. All are capable of receiving Donati­ons, unless prohibited by any express Law or custome, nor only single persons but eve [...] many together, Bract. l. 2. c. 5. n. 6. &c. 11 Brit. d. c. 34. now these are Femes Coverts incapable to receive the Gift of their Husbands or otherwise, during cover­ture, Mag. Ch. c. 36, Fl. l. 3. c. 5. Religious persons, 7 E. 1. c. 2. & 34 E. 1. c. 4. 18. E. 3. Sta. 3. c. 3. all Ecclesia­sticks in the name and right of their Church, 15. R. 2. c. 5. F. N. B. fo. 221. Q. Bodies politick, 15. [...]. 2. c. 5. for those Immoveables which are without lawfull permission given to bodies politick, are forfeited sometimes to the King, and somtimes to the next cheif Lord Bract. l. 2. c. 5. n. 6. so neither can Jewes Brac. ib. nor any who are not under the Allegiance of the Supremacy, Bract. l. 5. tr. 5, c. 25. Flet. l. 6. c. 48. Dier fo. 224. n. 29. but in regard the thing taken, is also re­ceived, the acquisition is not to themselves, but to the King as we have said, nor finally can persons uncertain, as the Heirs of one that is living. Perk. grants. 52. Plow. 345. Or the first-born of any one who at the time of the gift hath not Chil­dren, Perk. ib. n. 54. Dier fo. 274. n. 43. but a possession to A. the remainder to his Heirs, though uncertain is good, Coo. l. 1. Ar [...]bors Case, f. 66. he also who is wholy unfit and unable to ex­ecute an office in any of the Courts of Justice is uncapable of receiving the said Office. Dyer, fol. 151. n. 1.

[Page 111] 14. Now all things whatsoever may be gi­ven, save those things which can no way be possessed, those are things sacred and Religious, or as it were, Sacred; and those are a Free-man, and that which appertains to the Kings Treasury, which make the very Crowne, and belong to the Publique profit. Brac. l. 2. c. 5. n. 8. 13, 14. Brit. d c. 34. Flet. l. 3. c. 6. To which also some adde the Walls and Gates of Cities: Flet. ib. But at this day there scarce seems to be any liberty appertaining to the Crowne or P [...]erogative in the Supre­macy, which may not by Charter be granted to a Subject. Kitch. fol. 30. b.

15. I cannot give the Right which I have in a thing which is in the possession of ano­ther to a third person: Yet I may [...]emit it, or [as we say] release it to the Possessor by my writing: Perk. ib. 85, 86. Nor can any one give an action which he hath to any thing, as we have said before Sup. cod. except the King, Dyer, fol. 30. n. 208. or to the K. Bro. chose in Action, 4. yet one may give it to the party obliged. Perk. ib. 85, 86. A man cannot give the reversion of an Office Eo Nomine, nor can any but the King give, under the name of the Office. Dier, fol. 259. n. 18.

16. Now that a Donation may be valid, there are other things required: It ought to be free and not compulsatory, nor extorted by force or feare. Brac. l. 2. c. 5. n. 8. 13. Brit. d. c. 34. There ought also to be certainty in a Gift, for that there can be no Donation of a thing uncertain, unlesse it may be some meanes be reduced to Certain­ty. Perk. ib. 81, 86. Plow. fol. 6, 7. 12, 13. There ought also certain words to intervene to a congruous Gift, Brac. ib. n. 12. as to a Bargain, Id. ib. Dier, fo. 71. n. 10, 11 and that there be a joynt con­sent as well of the Donee as of the Donor, Brac. ib. n. 12. Dr. Stu. l. 2. c. 33. [Page 112] And that there may be no Error in the thing given, Brac. l. 2. c. 5. n. 12. Flet. l. 3. c. 7. nor fraud, Id. ib. not prejudice to a third person. 13. Eliz. c. 9. Yet a false or pretended cause adjoyned to a Gift, doth not vitiate or injure it. Flet. l. 3. c. 6.

17. And here also there ariseth a diffe­rence amongst Donations, for that some may be by word, some not without Writing or Deed [as we commonly speak] Brac. l. 2. c. 5. n. 3. all Chat­tells for the most part, either reall or perso­nall may be given by word, Per. grants, 7. unlesse they be given by a Body politick, whose Seale i [...] necessary in every Alienation. Id. [...]od. 64. If any one in Knights service be Guardian of Body and Lands, he may grant the Custody of the Lands or the profits by word only, which some affirme also as to the body or person of the Heir, Id. ib. 60. though it be denyed by others for this reason; That the transferring of the Body doth not consist properly in the delive­ring possession. Id. ib. No man can grant Lands which one hath in possession, to another, ei­ther for life or for ever, without a Writing, but for yeares he may. Id. eod. 61. Corn which is but growing may be granted by a Nude parol [...] and that by Tenant in Tail, although he dye be­fore the Do [...]ee hath severed it from the land Id. eod. 57. which notwithstanding is otherwise in fruits of Trees growing upon the Land. Id. eod. 59. And the reason of the differenceit may be, is, because Corn cannot grow without the indu­stry of man, but trees by nature: but Tenant in Fee-simple may give even such Trees by his word only, Id. eod. 58. because he hath a larger power then Tenant in Taile. And lastly, Lands [Page 113] and Tenements may be given amongst those who are living by word only: Id. cod. 62. But in case of Death, not without a Will in wri­ting. Seetit. of wills, &c.

18. Incorporall Rights are hardly given without Deeds (as wee call them) such as yearly Rents, Dier, fol. 139. n. 57. Dr. Stu. l 2. c. 16. fol. 80. Common of Pasture, an Advowson, villain in grosse, or the reversion of Lands after the death of the present Possessor: Perk. gr. 61 Plow. fol. 150. Of which nature also are Tithes according to the opinion of some, Perk. ib. 62. Plow. 233. but a Rectory with it's Tithes may: Bro lease, fol. 15. 20. to which may be added the Right of Guard and Mar­riage. Dier, fol. 370. n. 57.

19. If a Gift be in all things compleat, it ought to be confirmed by Livery, or some­thing parallel. Brac. l. 2. c. 5. n. 12. 17, 18. Inst. com. c. 21. Lit. l. 1. c. 7. Flet. l. 3. c. 2. & 9. Dier, f. 49. & fol. 91. Now how Livery and Seifin is to be, we have spoken else-where.

20. There are three kinds or species of Donations in case of Death: One which is made meerly upon the thoughts of Death, when there is no feare or danger of Death [...]igh. Another, when the party being mo­ved with the imminent feare of present Death, so gives, that the Gift immediately becomes the Donees. The third, when one being prickt with the danger, gives out so, that the gift is forth-with the Donees, but af­ter his deceale. Brac. l. 2. c. 26. Flet. l. 2. c. 57.

What persons may alienate, and what not.
TIT. VIII.

THis Chapter is so near the other, that we must necessarily repeate many things which we mentioned there. But the word [...] ­lienating being more generall then giving those things which we shall set downe he [...] have a more universall use.

It happens sometimes that he that is O [...] ­ner of an Estate cannot alienate it. The King cannot alienate the ancient Mann [...] annext to the Crown, but every King is [...] ­liged to revoke the alienations of the Cro [...] ▪ Nor will an Obligation to warranty hinder▪ unlesse it were upon Exchange: Or other­wise for the value in Fee, or service: O [...] [...] least, unlesse they were granted for the C [...] modity and Honour of the King, as the B [...] ­ronies of Bishops, Flet. l. 1. c. 8. & 17. &c. But this Right [...] now almost wholly worne out, either by the munificency of our Kings, or by the [...] much negligency of our Common-wealth: And therefore King James did worthily stu­dy a wholsome remedy for so pernicious [...] mischeife.

1. Nor can a Husband so alienate the In­heritance or Joynture of his Wife, but tha [...] [Page 115] it may be recovered by her or her Heirs after his Decease. Glan. l. 6. c 3. Brit. c. 34. F. N. B. fol. 193. d.

2. Those who hold of the King in Capit [...], either by Knights service or Socage, cannot without punishment alienate their Lands without license▪ Id. fo. 175. A Bro. ali [...]nat. & tenures, 69. 32 H. 8. c. 1. Yet some are of opinion that such alienation is good for the Buyer or Feoffee against the Seller or Feoffor, al­though the King cannot be prejudiced by it. Bro. Testa­ments, 34.

3. An Infant, F. N. B. fo. 192. g. Perk. 3. Grants. 15. [...]9. Mad-man, F. N. B. fo. 292. C. Monk, Perk. ib. 3. or Feme-covert, Id. ib. c. 11. Bro. Exec. 175. cannot alienate: Nor can a villain, those things which himself hath purchased, F. N. B. 202. l. if his Lord be possessed of them: Or if they be not possessed, in case hee be the Kings villain. Littl. l. 2. c. 12.

4. There is also an old Law lately revived by an Act of K. James, which to the subver­sion of the Church was almost lost through neglect, wherein Arch-Bishops and Bishops are prohibited to alienate the Fees of their Churches. 1 Jac. ses. 1. c. 3.

5. Lastly, those who otherwise may alie­nate, in some cases cannot, namely Lands or Tenements to a Body politick, whether Ecclesiasticall or Seculer, 7. E. 1. 18. E. 3. c. 3. 15. R. 2. c. 5. F. N. B. fol. 221. Q. without ob­taining the Kings license for alienating it in Mortmaine. And on the other side, Reli­gious Colledges which were founded by the Kings of England, are prohibited to alienate their Lands without the Kings License and permission. Westminst. 2 c. 41.

6. And on the contrary it sometimes hap­pens, that he who is not Owner may alie­nate; for a Creditor by contract may alie­nate [Page 116] a pawne, or mortgage, although the thing be not his: As if it be agreed in the beginning, that it shall be lawfull for the Creditor to sell the Pawne if the money be not paid. So also may a Wife, Apprentice, or any other Servant which a Merchant ap­points to sell Commodities in his Office or Shop, F. N. B. fol. 120. H. Bro. tit. Contract, 37. 40. or any other person who hath command from the Owner. New booke of Entries, tres­pass in Agist. 1. & Ejectm. firm. 10.

7. And sometimes it falls out, that he who hath a full power to alienate a thing, cannot doe it but after a certain forme or manner: for the King can neither purchase nor alie­nate without that special method of Entring, which we call Record. Plow. 553.

By what person wee may make acquisition or gaine to our selves.
TIT. IX.

NOw we are to know by what persons wee may purchase or gaine to our selves: And know that we may legally by our selves, our Wives, our Servants, Male or Female, by Sons or Daughters which are under our protection, by Free-men who serve us, pro­vided their Deed be necessary, and warran­table and approved. Brac. l. 1. c. 9. n. 3. l. 2 c. 11. n. 12 &c. 18. n. 6. & l. 3. tr. 1. c. 2. n. 12. Brit c. 35. & 38. Lit. l. 2. c. 11. Dr. Stu. l. 1. c. 8. & l. 2. c. 18. And also by those Servants Flet. l. 3. c. 13. &c. 15. & l. 4. c. 11. &c. 12. who are not under our power, [Page 117] as well as by those who are, provided they be not under anothers, yet so, as we take no be­nefit by them before it be determined whose they are: so also by a Common Servant, and that as well by anothers as ones owne, which we do bona fide possesse, and by such a one of whom we have an use.

1. And this may be done also by Procura­tors, Tutors, Keepers, or Guardians, who either bargain in our name, or are in possession: Brac. l. 2. c. 18. n. 6. Flet. l. 3. c. 4. &c. 15. And the same is to be understood of those who are naturally deafe and dumb. Id. ib.

2. The Sons and Daughters also of Vil­lains, which are under the power of their Lord without manumission. If they make a purchase without the bounds of the villain­age, have no Heir but their Lord. If so be that he take possession of such Tenements, either in the life of his Villain after his Death. Brac. l. 4. [...]r. 3. c. 13. n. 1.

Of ordaining last Wills and Testaments.
TIT. X.

THe third kind of Donations which are by reason of Death, are last Wills and Testaments. Brac. l. 2. c. 26. Flet. l. 2. c. 57. Now a Testament is the de­termination of our Will, concerning that which one would have done after his de­cease. l. 1. de [...]. Testament. And it is double, Viz. Proper, or [Page 118] Improper. That which is properly so called, is that last Decree of a man, in which hee names his Executor. Brc. Test. 20. And hee is in the place of him whom the Romans called Haeres, & is as the Basis of the Testament, Swin. par. fo. 1. Sect. 3. n, 19. repre­senting the state of the Testator: That which is improperly called a Testament, is any o­ther las [...] wil, whether a Codicel or Donation by occasion of Death or Letter. Vali [...]ius, in com. sup. Instit. tit. de Testam. ord. in pri. n. 9, 10, 11. And ei­ther of these may be two-fold, Viz. either written or Nuncupative: Perk. Testam. 476. but Lands can­not be given by a Nuncupative will. 32. H. 8. c. 1. Coo. l. 3. Bakers case, fo. 31. Di­er, fol. 53. n. 13. & fol. 72. n. 2. & fol. 143. n. 54, 55.

1. That rigorous way of Solemnity which the Romans used in making of Wills is long since abrogated by the Canon Law, which counts two Witnesses before the Parish Priest sufficient to maintain or prove a Will. C. cum esses, 10. extra testa­mentis. Nor doth the Custome of England oblige so much as the Decretall; for with us it is sufficient to pronounce a will before two Free-men, whether Clergy or Lay: Brac. l. 1. c. 16. n. 2. Glan. l. 7. c. 6. Dier, fo. 52. n. 13. Yet our Sages doe, for very good reason, perswade men not to be too secure or negli­gent in the making of Wills. Coo. l: 3: case Butler & Bak: fol: 36:

2. Nay so irksome doth that Curiosity of the Ancients seem unto us, that we esteem e­very probation of a Will equall, which is consonant with that originall simplicity of Jus Gen [...]um. Swinb: part 4: sect: 25: Nor are there two Witnes­ses necessarily required, if there be other cir­cumstances to supply. Brit: 28: fo: 7: 7: a:

3. In the admitting or reiecting Witnes­ses, we doe not much differ from the Civill Law. For as the Heir there, so the Executor with us cannot be a Witnesse, yet a woman is [Page 119] not admitted. Swin. part 4 Sect. 21. Nor is it so essentially ne­cessary that Witnesses should be interrogated in their giving testimony, unlesse they be such as are capable of being removed by o­ther exceptions. Id. part, 1. Sect. 10.

4. Although Wills take their force from the Will of the Testator chiefly: Perk. 555. Plo. 412, 413. Yet an Executor cannot have his Action against the Debtors of the Testator before hee hath en­tred the Will, and procured an Authority for it from an Ecelesiasticall Judg. Perk. 482, 484, 486, Br [...]. Execut. 49, 19, 139. And although some will not grant this to be of an­cient custome, Bro. Testam. in fine. yet the contrary is most evident. Glan. l, 7, c, 7 Brac. l, 2, c, 26. n, 2. Plo. 280. Flet. l, 2, c, 57.

5. But when an Executor comes to a Judg to publish a Will, he shall upon Oath assert, That hee doth beleive that Testament which he exhibites to be the true and last Will of the Party deceased, and that at a time limi­ted by the Judge [unlesse hee be then prepa­red] hee will make: and render a true and faithfull Inventory of all and singular the Goods which the Testator had at his Death: And that he will pay Debts and Legacies, and render a just accompt of the execution of his Executor-ship, whensoever hee shall by the Judge be required thereunto: Lym. prov. de testat. c. stat. bone memor. and this finished, he becomes the same person with the Testator. 9. E. 3. c. 3. Nor doth he only challenge all things which were the Testa­tors, but renders himselfe also lyable to his Debts according to the value of the Estate received. 13, E. 1. c. 35. Dier, fol. 187. n. 6.

6. If there be many Executors named, they may all if they please undertake the [Page 120] Office; but if one onely be willing, he may doe it. Perk. 486.

7. But if any one dyeth, having made a Will, and yet not named any Executor, o [...] otherwise altogether intestate, the proper care belongs to the Ecclesiasticall Judge; for that he is liable to all the Debts of the party deceased, as farre as the value of the Goods will extend, 13. E. 1. St. 2. c. 17. 21. H. 8. c. 3. Brac. l. 2. c. 26. n. 2. Glan. l. 7. c. 6. Dyer, f. 232. n. 5. & 171. n. 26. F. N. [...]. fol. 120. D. and is obliged to commit the Administration of the Goods to the Wi­dow, or next of Kinne, or at least to such a Party as will undertake it, and put in good security both to Administer faithfully, and to preserve the Ordinary harmelesse. 31. E. 3. c. 11. And here also hee is to make Oath [as farre as he knowes or beleives] that the Party de­ceased dyed, exhibiting a Will, in which there is not any Executor named, or whose Executor named refuseth to undertake the Office: Or [if the case require it] that he dyed wholly intestate: And further, that he will make and exhibite a just and fatihfull Inventory: That hee will according to the value of the Goods he shall receive, pay the Debts of the party dead: And the portions also if there shall be any over-plus assign­ed by the Judg to the Children of the Party deceased [if he have any left or to the residue of his Kindred. And lastly, that he will ren­der a just account of his Office when the Judge shall require it: which being finished, he obligeth himselfe with good security to a due Administration of the Goods, and is at length made Administrator, Dyer, fo. 294. n. 7. & fo. 339. n. 46. when hee receives letters of Administration under the [Page 121] Authentick Seale of the Ordinary.

8. But here it is questioned what is to be done in case no one will be Executor or Ad­ministrator? And in this case the Judg ought to sequester the Goods of the deceased: and calling the Creditors together by his com­mand, give them satisfaction as the Law pre­scribes. Perk. 483. Bro. Testa. 20. & Execut. 90. & 117. Fle. l. 2. c. 62. Dyer, fol. 232. n. 5. & fol. 256. n. 8. & fol. 160. n. 42. Plo. fol. 277.

9. But who is competent Judge in this case? truly the Bishop of the Diocesse where the Party dyed is Regularly. Yet there are o­thers, as well Lay, as Clergy-men, who have the prescription of this priviledge or liberty [as we call it] or else a grant of it be by an­cient Charter, Perk. 486. Dr. Stu. l. 2. c. 28. Swin. de test. part 6. Sec. 11. I say regularly, because it is true, in case the Party deceased have not an Estate, or Goods in sundry Diocesles; Swin. ib. for if so, then the probation and publication belongs to the Arch-Bishop of Canterbury or Yorke [if it be in the Province of Yorke] by Prerogative. Lym. provin. Statut. de testa. Perk. 489.

10. When we affirm the Bishop of the Di­ocesse competent Judge, we intend the same also of his Officialls, whether he be Vicar ge­nerall, or Commissary, Bro. Testam. 12. or Arch-Dea­con, who by prescription or composition claims this power. Id. ib. 25. Perk. 492, 493

Of the Military Testament.
TIT. XI.

OUr Law doth not permit any priviledge to that Testamentum Militare, which no Pagan Law denyeth to last Wills: Swin. part 1. Sect. 19, & part 4, Sect. 17, 18. For that all those Roman subtilties are dissolved into the ancient Law of Nations.

Who they are that may make a Will.
TIT. XII.

SOme there are who by our Law are ab­solutely prohibited to make a Will, and some who are prohibited as to certain things only.

1. An Infant is absolutely forbidden, but in this case Infant is taken doubly, viz. A male under fourteen, and a female under twelve years of age. Otherwise under twen­ty one for both sexes; those of the former rank cannot make a will at all, Swin. part 2. Sect. 2. Perk. 503. these of the later may of Chattells but not of Lands in Fee, 34. H. 8. c. 5. Dr. & Stu. l. 1. c. 12. unless any particuler custome of a particuler place permits it. Perk. 504.

[Page 123] 2. An Idiot, 34. H. 8. c. 5. viz. Such a one who cannot give a reasonable answer to any or­dinary and easie question, Swin. patt. 2. Sect. 4. also a Servant for the same reason by which he is forbid to give, whilst living, Sup. title Donation S. 5. can dispose of nothing by his last will, whose possession is seised on by his Lord, Perk. 29. Dr. and Stu. l. 2. c. 43. or claimed by word only, Bre. Villein 50 unless in case that he be Executor to another, in which case, he may constitute a­nother his Eextutor, even against the will of his Lord, for that the goods which are con­tingent to this Office, are not his to his own use but to anothers, Id. ib. 68. 73. so also a Captive, be­cause himself possesseth nothing, but is in the possession of another, Brac. l. 2. c. 16. n. 5. which is true like­wise in those whom we called Out-lawed. Id. l. 3. tr. c. 13. Dr. and Stu. l. 1. c. 6. and l, 2. c. 9.

3. Moreover, he that is guilty of Treason, hath not a power to make a will: Because if he be afterwards convict of that Crime, he forfeits what ever he possessed at the time of the Treason committed, to the King and the Exchequer, 5. E. 6. c, 11. Swn. par. 2. Sect. 12. 1. R. 3. c. 3. nor he that is guilty of Felony: but here we must distinguish, for if such a one dye before conviction, he may by his Will bequeath both his Lands and Chattells, or if he be obstinate before the Tribunall, and refuse to put himself upon the Triall of God and his Country, according to the Custome of the Common-wealth, or shall stand mute, for in this case if he dy in­testate he reservs his Lands intire to his next Heir or if testate he may dispose of them to whom he please, and forfeits his Chat­tells only: Moreover, if he be Convict he looseth his Lands from the time of the fact [Page 124] committed; but his Chattells only from the time of his Conviction, so that before Con­viction he may give them or alienate them at pleasure, Swin. par. 2. S. 17. Bro. Forfeitures 5. 28. 65. 89. 103. 113. 117.

4: He that murders himself, is by us tear­med Felo de se, and hath no other Successor, as to his Chattells, but the Exchequer, Bract. l. 3. tr. 2. c. 31. yet it is much doubted at this day whether he forfeits his Lands or not, Stan. pl. cor. l. 1. c. 3. but that his Chattells come into the Exchequer is out of question. See tit. Mur.

5. An Heretick by our ancient Law could not make a will, 2. H. 5. c. 7. but that Law is now abrogated, 1. E. 6. c. 12. so that here we have no­thing certain but what we receive from the Canon Law.

6 A notorious Usurer, if he exact above ten pound Per cent. per an. is liable to all the punishments which the Canon Law inflicts, 13. Eliz. c. 8. and therfore seems incapable of making a Will. Swin. par. 2. S. 16.

7 Feme Covert is absolutely prohibited to dispose of Lands of Inheritance by her last will, 34. H. 8. c. 5. or of Goods or Chattells, without the license of her Husband, Swin. par. 2. S. 9. Bract. l. 2. c. 26. n▪ 1. Cov. Ognels case. 51 unlesse she were an Executrix of a former Husband or of any other person before she entermarried with this Husband, or hath any title to any summ of Money as yet unpaid, for in these cases she may dispose of the Goods by will, which he hath by reason of that Office, or by right of Action: and constitute either her Husband or any one else, her Executor, Bro. Testa. 9. 11. 13. and. Execut. 132. 175. 178. Glan. l. 7. c. 5. Perk. 502. but if we beleeve Bracton, it was an opinion that a VVife might make a will, and dispose [Page 125] of her reasonable part, which she should have had, if she had survived her Husband, and especially of such things as were permitted or given her for Ornament, which they cal­led her own, as Robes and Jewells, l. 2. c. 26. n. 1. F. N. B. fo. 122. Flet. l. 2▪ c. 57. but this Law was either customary in some par­ticuler place, or else it is long since vani­shed:

8 Lastly, they which enter into Religion cannot make a will, for to those Goods which they dispose not of before entrance, their next of Kin succeeds, as if they had died intestate, Bro. Testam. 9. but it is otherwise of Ecclesia­stick Seculers, whose Goods are by the cu­st [...]e of England, reputed lay; whether they be acquired from the Church or otherwise, Dr. and. Stu. l. 1. c. 39. so also is Corn growing upon glebe Land and not yet gathered. 28. H. 8. c. 11.

9. The King however in a capacity to make a will, cannot by his Testament dispose of his Kingdome or the Goods of his King­dome, viz. his Crown or Regalia to another. Fitz. A­bridg. devise 5. and Execut. 108. Swin. p. 2. Sect. 28.

10. A Bishop or Abbot, in regard their Baronies were of the Almes and Charity of the King and his Predecessors, cannot a­lienate any part of their Demesnes, as to the Remainder, without the Assent and confirma­tion of the King. Glan. l. 7. c. 1.

11. So also a Bishop, Dean, or Master of any Society is prohibited to make a will of a­ny of those Goods which they held in com­mon with the Chapter and Society, Dr. and Stu. l. 2. c. 39. Bract. l. 2. c. 14. Perk. 469. 497. 499.

Of the Dis-inheriting of Children.
TIT. XIII.

OUr Law remits that positive dis-inheri­ting of Children, to which the Roman Laws obliged their Citizens, to the affection of Parents, which it presumes, nature to have engraven so firmely in the minds of all, that it is not possible to be rooted out but by the extream debeauchery of Children. VVhere­fore every one hath a free power of disposing of his goods, whether moveables or immove­ables: And those whether purchased or des­cending from Ancestors certaine, unlesse it be of Fee-Taile; for that cannot be dispo­sed of but where the Entaile is cut off by fine and recovery. 4. H. 7. c. 24. 32. H. 8. c. [...]. Plow. 356, &c. & Coo. l, 3. case of Fines.

1. Yet the ancient VVriters of our Law doe scarce hold it lawfull for a man to be­queath by his VVill an Inheritance received from his Ancestors to any one but the next Heir, under which notion they will lay the burthen of the Fathers debts upon the Heir. Glan. l. 6. c. 17. & 18. & l. 7. c. 1. Brac. l. 2. c. 36. n. 1. & [...]rit. c. 34. But our later times have provided a sufficient remedy for this: 3 [...]. H. [...]. c. 1. And therefore the Heir is not at this day lyable to the debts of his Ancestor, unlesse he be specially men­tioned in the Instrument of Contract, and have an Estate sufficient discending.

[Page 127] 2. Bracton L. 2. c. 26. n. 1. Glan. l. 7. c. 8. Plow. fol. 418. makes this distribution of Chattells, Viz. That Debts being paid, the overplus should be divided into three parts, whereof one to be left to the Chil­dren, the other to to the Wife, and the third at the will and pleasure of the Testator. And if there be no Children, then one halfe to the liberty of the Testator, and the other to the Wife: And if there be no Wife, then one moity to the Children, and the other as the Testator shall please.

But this rather seems to be Counsell then Law; for a little after in the same place hee saith, That neither the Wife nor Children ought to take more of the Goods of the Fa­ther or Husband deceased, then what is par­ticularly b [...]qu [...]athed unto them, except it be upon some speciall grace, as having merited extraordinarily of him in his life time. And he gives this reason, namely, because there would scarce be found any one who would endeavour to lay up much, if hee should be compelled at his death to leave it to illite­rate or debauched children, or to an ill wife. And therefore it is very necessary, that in this they should have a free power; for by this they prevent vice, and encourage ver­tue, and give occasion both to VVife and Children of well doing: which could not be, if they knew undoubtedly, that they should have a certain portion whether the Testator will or not.

Of the instituting of Heires.
TIT. XIV.

THe Civillians and wee have a different acceptation of the word Heire; for they call him an Heir whom the Testator nomi­nates in his VVill: Inst. de Te­stam. ordinand. And we him, who is next of Kin to the party deceased, to whom a Fee doth of right belong, after the death of the Ancestor. Glan. l. 7 c. 1. Brac. l. 2. c. 33. [...]. 3. Brit. c. 118, 119. So that we affirm it is not man, but God, who makes Heirs: Glan. & Brit. ib. And that Heres comes from Hereditate, where suc­cession is by right of Blood. Brit. ib. Nor do we call all the Estate of the party deceased, his Inheritance, but only his Fee, or at lest those Lands & tenements, with all things corporal and incorporall, which the Party deceased, held by a perpetuall Right. Iidem ib. VVherefore it was necessity which in some sort constitu­ted an Heir: who, as he was wont to succeed his Ancestor in the premises, even against his will, so was he obliged to pay his Debts, if he had Assets sufficient, and the Chattels did not suffice, Glan. l. 7. c. 7. Brac. l. 2. c. 26. n. 1. as we have in part declared before.

1. VVherefore an Heir with us doth not succeed to the universall Right of the Party deceased, but to the Fee assigned only; for as to the disposing of Chattels, men nomi­nate their Executors according to their [Page 129] pleasure Glan. l. 7. [...]. 6 Brac. ib. Dr. Stu: l: 2: c: 10: who as to that part of the Patri­mony, supply the place of an Heire, and re­present the person of the Testator, if at least they accept the Office, Bro: Execu­tors, 5: 21, 22: 57: 77: 84: 122: so that they may convert all those goods which are not bequea­thed to their own use, Plow: 943: and take even the cloathes of the widow, if they are more rich and sumptuous then the condition of the Husband would bear. Bro. ib: 19:

An Executor may also be ordained either absosolutely or upon Condition, Id. ib: 9: & administrat: 1: & 45: and ei­ther from a certain time, or after a certain time, Bro: Exec: 155: and either universally, or parti­cularly, Id: ib: 2, and 155: L: Dier fo: 3, 4, n: 7, 8: and in the first degree, or by Substitution, Id: ibid: and either one or more. Id: ibid: 13: 24 38: 117:

3. And those may be Executors, whom the Testator shall constitute, whether they be strangers or Parents, of Kinne, or not of Kinne, Brac: l: 2: c: 26: n: 2: and not onely those who are free, but Servants also, and those whether our own or of others; Lit: l: 2: c: 11: Bro: villains 68 nor only Lay­men, but even of the Clergy also, and Re­ligious, Bro: ib: 68: 77 if they have the permission of their Superiors, Fitz. abrid: Execut, 47: so also may women, Bro. Execut: throughout and Infants, Id: ib: 15: and in fine, all who are not expressely forbidden by the Law. Glan: l: 7, c, 6, 4,

4. Not that any one is against his will forced upon this office, but that he that will may refuse, and he who hath once refused, may notwithstanding afterwards undertake it, Bro: ib: 38. 117 Perk: 4: 85. though according to the opinion of some, he cannot during the life of his Co-Executor, Dier, fo. 160: n: 42. but being once undertaken it cannot be laid down again, and the un­dertaking of it seems to be, when he doth [Page 130] under that name intermeddle with any of the Goods of the Testator. Id. f. 166. n. 10. 11.

If an Executor die before the Will proved, then Administration of the Goods shall be granted by the ordinary to the widow, or next Kinsman of the Testator, who shall be ob­liged to dispose of the goods of the Testa­tor, according to the Will, unlesse the Re­mainder of the Goods after the payment of Debts and Legacies were bequeathed un­to him; for in this Case, the Executors of that Executor may justly challenge Admi­nistration which the Will annexed. Id. fo. 172 n. 8.

Of the ordinary Substitution.
TIT. XV.

Substitution is of no small use with us, though we do for the most part in this, follow the Precepts and Rules of the Civil Law, yet we cannot so freely dispose of those fees which we hold by Knights Service by our Testaments, but that we are obliged to leave a third part to the heir 32. H. 8. c. 1. Glan. l. 7. c. 7 but for those which we hold in Soccage not intailed, Brac. l. 2: c. 30. or tied by any particular Custome, Glan. ib. we may be­queath them to whom we will, whether to a Kinsman or stranger, 32 H. 8. c. 1. provided we hold no other Lands in Capite by Knights Ser­vice: and in each of these Cases we may make Substitution, either vulgariter (as they [Page 131] term it) or Pupillariter. Now this Substi­tution is nothing else, then the adding of a Condition, which we commonly call Tail; namely a limitation of Heires, to whom we intend to have the Lands discend from the Testator, or remain, or otherwise revert to us, and our Heirs.

1. Yet is not this Substitution the same with that of the Romanes, because that had this Condition annexed, viz. I ordain A. mine Heir, and if he will not be Heir, then my will is, that B. shall be my Heir. Inflit. eod. now this of ours i [...] not bound, but is rather tacitely imposed contrary to the Legator, as namely thus, I give and bequeath such a Fee to A. and if he accept it▪ then I will that such or such shall be his Heir or Successor. Westminst. 2 c. 1. Dr. Stu. l. 7. c. 24.

2. In like manner if we bequeath any thing conditionally to any one, we make Substitution to another, in Case the condi­tion be not performed; for Example, I give a hundred pounds to A. when he shall marry a Wife, or if he shall not get a son of my Daughter lawfully, then I give the said hun­dred pounds to B.

Of Pupillary Substitution.
TIT. XVI.

IN this Substitution we do not so much regard the power of our Countrey, as the [Page 132] liberty of t [...]e Testator, so that a Legat o [...] may make a Substitution Pupillary, either to his own chidren or to strangers, Legatees who are under age: As I give to A. (my own child or anothers) a hundred pounds when he shall come to age: and if he shall die before then, I bequeath the same one hun­dred pounds to B. But in regard that Cases of Wills, are for the most part tried in the Ecclesiasticall Courts, and by the Rules of the Civill and Pontificiall Law: Bra. l. 2. c. 26 n 2. there­fore our Law, hath as it were, past by for the most part, this and other things of the same nature, and leaveth them to be determined by the Civill and Pontificiall Law.

How Wills are invalidated.
TIT. XVII.

WIlls cannot be justly made ab initio, by those who are not permitted to make Wills; those who are, we have men­tioned before, they may also be nulled by a later Will, Perk. 476. 479. 480. Fulb. paral Devises fo. 47. or invalidated by Treason, &c. as where one is condemned for Treason or Felony after his Will made; Stan. pl. corp. l. 3 c. 20. and c. 32. or if the Testator revoke his Will, or be deprived of the Executor whom he named. Bro. Exec. throughout.

1. Suppose A. make two Wills, one in the sixth, the other in the eighth year of Eliz. [Page 133] at length he is sick and speechlesse: B. his familiar friend comes unto him, giveth him into his hands both the Wills, and desires him to return that which he would have stand for his Will: A. returns that which was made the sixth yeare, in this Case, that will which he returned shall be esteem­ed the later. Perk. 479

2. And it happens sometimes, that a mans will, which according to the Civill Law is ambulatory, or alterable, untill Death, can­not be altered, in regard of prejudicing a­nother Contract, upon which account the will was made; for Example, A. is seised of Lands in Fee, which he alienates to B. upon condition that they shall be his for life, to the use of the said A. the Remainder (e) in ip. Co. I am arcisc. & l. omnium. 19 C. de Testa. f Dier. fo. 49. n. 12. to C. and his Heires for ever, and upon this, A. makes his last will, after having given the possession to B. This will (quatenus to the alienation) cannot be nulled by a la­ter, and the Reason is, because the use of the said Lands do immediately belong to C. to whom the Remainder is transferred; so that he may immediately sell them if he please, Id: fo. 325. n. 73. Perr. 480.

Of those Wills which were called by the Civilians Testamenta inofficiosa.
TIT. XVIII.

THe Plaint or Action in the Case of Te­stamentum inofficiosum is not in use with us, for as concerning Lands holden by Knights Service, in case the Father do not leave his lawfull Heir, either while he lives or at his death, a third part, according to the Statute, the will is void, as to that part, 32 H. 8. c. 1 so that the Heir may notwithstand­ing take possession thereof, or else if he have gotten it, he may immediately himself re­fuse Brac. l. 2. c 30 n: 2: the parcell bequeathed, or quit it, or remove it by Law. Id: ib:

1. For the disposing of Chattells, there are severall Customes in severall places, of which there remain very clear signes, in the ancient writers of our Law, Glan: l: 7: c: 5: and 7: Brac: l: 2: c: 26: n: 2: but by the Common Law the Testator had alwayes a Free will of disposing, Id: ib: wherefore that writ which is called Breve derationabili par­tebonorum, which li [...]s for the wife or chil­dren against the Executors, for the recovery of part of the Goods, Regist: fo: 142: b: F: n: 122: [...]: is not generall, but peculiar to certain Countreys, where the Custome is, that Debts being paid, the Re­mainder [Page 135] should be divided into parts, viz. one part to the wife, the other to the Children, and the third to be left at the will of the Testator.

Of the Quality and difference of Heirs.
TIT. XIX.

HEirs as they are taken with us, were ne­cessary in time past, as to the driving an Inheritance from our ancient Predecessors to the next Ancestor, Glan. l: 7: c: 1 (as they are now with us, as to part) 32 H: 8: c: 1: and that not onely as to a Succession in the Estate, but also as to the drawing upon themselves the Debt of their Ancestor, Brac: l: 2: c: 16 n: 7: and they were also for ever bound and obliged to warranties, that is, to the assurances, which either they or their ancestors ingaged and promised to those to whom they sold any Land.

1. But for that it is evident, that children naturall and legitimate are preferred before others to Succession: it were not amisse to see the Estate and difference of Children, which really is very much, for of Children, some are naturall and legitimate, and of this sort, some are Sons and Heirs, some Sons, but not Heirs, some also are Heirs of the Father, some of the Mother, some both of Father and Mother, some also are not Heirs although legitimate, and naturall, some by [Page 136] accident begin to be Heires, and some cease to be so, so also of naturall and legiti­mate Issue, some are near, some more near, some are removed, some more remo­ved, Brac. l. 2. c. 29, 30. Brit. c. 118. Coo. l. 3. Ratc. Case, fo: 40, 41, 42. Plow: 28. Flet. l. 6. c. 1. but of this elsewhere.

Of Devises.
TIT. XX.

THat kind of Donation, which is in Case of Death, is, where the Testator had rather that himself should injoy the thing bequea­thed, then that the party to whom it is be­queathed should have it: and yet, that he had rather that the party to whom it is be­queathed shall have it, then his owne Heire. Brac. l. 2. c. 21. n. 1.

1. Our Common Law, although for the most part it leaves the Cases of wills to be tried by the Ecclefiasticall Courts accor­ding to the Rules of the Civil and Common Law; yet are there certan particular Ca­ses of Lands and Chattells really, and which she hath reserved to her self and those with as much brevity as we can, we shall sum up.

2. And in the first place, all may give Legacies, who are capable of ma­king wills, and who they are we have formerly mentioned: but no man can rightly bequeath Lands or Tenements who hath not the possession of them at the [Page 137] time of the making of the will, Fulb. Par. e. Devises fo. 37. a. 32. 34. H. 8. which is to be understood if no other person be not al­so in possession in his right or name, for one may bequeath a Reversion.

3. All men also are capable of Legacies who are not especially excepted by the Law, which are religious persons, and persons not yet in being, although they afterwards shall be: As if one makes a bequest to such a Col­ledge or Chantry; of which name though there be not any at the time of the Testators death, yet there happens to be one afterwards Perk. 505 Fulb. ib. fo. 35. b. but a Post humus, in favour of Testaments. Although he be in the Wombe is notwitstan­ding supposed to have being Tearmes v. devise

4 A Husband although he cannot make a Gift to his wife in his life time, because they are both adjudged one and the same person during Matrimony, yet he may give and be­queath Lands unto her by will in regard that Legacies take no Effect before the death of the Testator by which this conjunction is dissolved. Fulb. ib. 36. a.

5. One may also give a Legacy to an un­certain person which may afterwards be ren­dred certain, as an annuity is given to A. for life, and after his death to him who shall first in the Morning enter Saint Pauls Church, and to his Heires. B. enters in the morning before any one else; this Legacy shall inure not only to A. but to B. and his Heires also. Id. ib.

6. A Body politick, unlesse by the Kings particuler Charter is not in capacity of recei­ving an Estate bequeathed. Perk. 505

[Page 138] 7. By our ancient Law, Fees could not be bequeathed by will, Id. 537. Brit. c. 34. 27. H. 8. c. 10. Dr. Stu. l. 1. c. 7. and c. 20. Dier. fo. 74. n. 14. but necessarily dis­cended to the next Heires, Glan. l. 7. c. 1. Bract. l. 2. c. 26. Dier. fo. 127. n. 54. (except con­trary to the Common Law, the particular custome of any City or Corporation permit­ted Lit. l. 2. c. 18. F. N. B. 198. I. unlesse the Heir consented to such bequests. Whosoever therefore would by his will give Lands to another, did first infeoff one in them to the use of himself, and his Heirs, Perk. 528. and by this means he might be­queath the use of the said Lands, although he could not the Lands themselves unto a third person, Id. ib. 97. but later times have remedied this inconveniency, or rather, poor and weak comment, and hath deereed, that not only uses but even the Lands themselves with some moderation may be bequeathed 32. H. 8. c. 1. Bro. testam. 19. Swinb. part. 3. S. 4. Coo. l. 7. Case. Butler. fo. 30. for of a Knights Fee we are yet obliged to leave the Heir a third part and we are prohibited the bequeathing of Lands by a will nuncu­pative, in regard of the deceit and fraud they are subject unto. Dier. 155. n. 21.

8. If a man and his Wife ioyntly purchase Lands to them and the Heirs of the man, and the Husband bequeath them after the death of him and his wife to a stranger, this is good: For in this case the Husband hath the Fee-simple. Perk. 539.

9. If there be two Joynt-Tenants in Fee­simple, where by the custome of the place Lands and Tenements may be given by will and one of them bequeaths his right to a third person, this is void. For since a Will is not in force untill the death of the Testa­tor, the right of a Joynt-Tenant at the very [Page 139] instant of his death is transferred by law unto his fellow, Inst. Jur. Com. c. 15 which notwithstanding is o­therwise in Partners, because Partners have their Lands by blood and Inheritance, and not by the Courtesy or pleasure of a Donor, Joynt-Tenant have theirs. Ib.

10. A man may also appoint by his will that his Executors may sell those Lands which he hath in Fee, and which he may bequeath, and that the profits arising from such Saile may be imployed for pious uses, or for the good of his Soul: Perk. 422. 541. 543. 21. H. 8. c. 4. but i [...] they shall cease to fulfill the command of the Testator, within two years, the Heir may enter upon them, and eject them. Fulb. par. c. Devises fo. 40. Plow. fo, 523.

11. A. being Tenant in Socage gives the Lands which he hath in Fee-simple to his wife for tearm of life, the Remainder to B. his Brothers Son, and the Heires males of his Body; and if it shall happen the said B. to dy without Heires of his Body begotten (not expresly nor implicitely naming males) there the said Remainder to C. another Kins­man, and his Heires males in Fee-simple, and for defect of Heires males of the said C. then to the next Heirs males of the said lineage lawfully begotten. B. dies leaving only Issue, D. a Daughter, the question is whe­ther D. shall have the Lands by force of those words [and if it shall happen, &c.] or some other Heir male more remote: But it was adiudged that those words did not create a general Tail to the Heirs of B. or hinder the Lands from remaining to the Heirs males, according as devised. Dier. 171. n. 7.

[Page 140] 12. Chattells of any sort may be bequea­thed by will, Perk. 511. wherefore the profits ari­sing either from the custody of a Body, or Lands of a Ward, a Lease for years, Horses, Oxen, Sheep, Gold, Silver, either in Plate, or Money, Rings, all manner of Vessells, without exception are diviseable: Id. 525. unlesse the Testator had but a Joynt possession of them at the time of his death Dr. and. Stu. l 1. c. 6. Lit. l. 3. c. 3. and unlesse they be affixed to the Fee or Free-hold, and cannot, being reputed parcell of it, be remo­ved without wast. Bro. Execut. 65.

13. Monies also due upon Bond or Con­dition may be devised, for that after they are paid to the Executors, they are due to the Le­gatee. Perk. 527.

14. Chattells which a man hath in right of his Wife, as Leases for years, &c. are de­viseable. Id. 560.

15. A thing uncertain may be also devi­sed, so long as it may be reduced to certain­ty by the Legatee. Fulb. par. 38. b.

16. There hath been a great difference in opinions amongst our learned Lawyers, and that according to the diversity of Species in the cases of Corn, &c. sowen by those who had Land in possession, and not severed from the Soil. For example, Tenant in Dower sowes Corn, and dies before Harvest: She may de­vise the Corn, though not yet ripe, Perk. 521. Stat. Merton. c. 2. Flet. l. 2. c. 37. which is true also as to those Lands which she holds Joyntly or severally under the notion of Dower. Perk. 513. Fulb. 17. [...]ural. Devises 38.

17. But if contrary to custome she be en­dowed by the Guardian of the Heir, and dy­ing, [Page 141] leaves Corn growing, her Executors may be ejected by the Heir when he comes to age, and hindered from gathering the pro­fits. Perk. 524. So if the Heire coming of age reco­ver Lands against his Mother, or Widow of his Ancestor in a writ of Admeasurement of Dower; he shall recover not only the Lands but the Corne also, which is by him devise­able. Id. ib.

18. Tenant by the Courtesey leaseth forth his Lands, and dyeth. The Lessee shall reap his Corn, and may, if he dye before it be ripe, devise it, Id. 514. which may also be done by a Parson of a Church as to his glebe Lands. 28. H. 8. c. 11.

19. So also he who hath Lands in right of his Wife, his VVife dying after the Corne sowen, may reap the benefit, ar devise it, Perk. 518. Lit. l. 1. c. 8. which his Lessee also [in case hee have leased out the said Lands] may doe. Perk. 513. Fulb. par. fol. 37. b.

20. Execution is taken upon a Mannor of the Debtors by vertue of a Statute Merchant. The Creditor sowes the Land, and before Harvest, a Tenant of the said Mannor dyeth, the Custody of whose Heir [being under age] satisfieth the Debt: This will not hinder, but that the Creditor may also devise the Corn not yet ripe, or gathered. Ib. 516.

21. Mony is paid at the day upon a mort­gage, yet it seems the Creditor [although some are of a contrary opinion] may devise the Corn which he sowed, and which as yet remains ungathered. Id. ib.

22. Tenant in Taile leaseth out his lands for life: The Lessee sowes Corn, the Heire recovers upon a Formedon in the Des­cender, [Page 142] and dyeth before the Corn is gathe­red. This Corn according to the opinion of some (though others contradict it) hee may devise by Will. Perk. 520. Fulb. fol. 37. b.

23. Tenant in Fee-simple dyeth, and leaveth an only Daughter, and a VVife with Child: The Daughter enters, and sowes the Land; but before Harvest the VVife is deli­vered of a Son, to whose use the next Kins­man possesseth himselfe of the Estate: in this case the Daughter may devise the Corn. Perk. 521. Fulb. fol. 38. a But we will put the case thus: The Mother before the Sonne is born recovers Dower a­gainst the Daughter, and hath that part as­signed by the Sherifte which the Daughter sowed. In this case she may devise the Corn, yet it is a Quaere. Perk. ib.

24. Tenant for tearm of yeares commit waste, upon which the Lessor recovers the Land. In this case the Lessee cannot devise the Corn: Id. 515. Neither can he, if another up­on a more ancient Title recovers the said Land against the Lessor. Id. ib.

25. Lessee of a House for forty years de­viseth the said House to A. without mentio­ning the Title which he hath, or giveth. The Question is, what he deviseth? And it is ad­judged that the Testator deviseth that title which himselfe hath, Viz. The term of for­ty yeares. Dyer, fol. 307. n. 69.

26. Lessee for years be que at heth his Inte­rest to A. the remainder of the years to B. in case A. dye before the term expired. A. is in possession by vertue of the Devise, and not long after Aliens his Right, and dies before [Page 143] the terme expired. The Question is, what remedy B hath to recover his Right as to the remainder of the years unexpired? And it was adjudged that he is without Remedy: Id. fol. 75. n. 18. & f. 140. n. 41. But if the Testator had devised so many years of the Lease to A as A should live, and had ordered B. to succeed in the residue. In this case A. could not have so alienated the Term, but that B. should have succeeded in the Remainder unexpired. Dyer, fol. 358. n. 50, 51. & fo. 359. n. 52.

27. Disseisee recovers against the Dissei­sor: The Disseisee may devise the Corne sown; but if it shall be severed from the ground, the Disseisor may take it away, or devise it, Perk. 519. yet he shall pay the Disseisee Damages. 6. Ed. 1. c. 1.

28. A Testator can neither devise Actions (if they be not Judgments) nor instruments of Actions: Brac. l. 2. c. 26. a. 28. n. 2. & l. 5. tr. 5. c. 10. n. 3. Fulb. fol. 30, 31. but hee may that which is due upon Action: Yet is this devise conditi­onall, namely, if the Debt be paid or recove­red by the Executors. Perk. 527.

29. Our Law respects principally (as doth the Civill Law and Reason likewise) the will of the Testator Cook. l. 3. Bullers case, fo. 27. Fulb. fol. 46. Plow. 343. (if not contrary to Law) If therefore a man having both a Sonne and Daughter living, deviseth his Lands to his Daughter: Although the Sonne be more worthy, yet the Daughter shall have the Lands. New terms v. devise. If he adds and annexeth a Con­dition to the devise, which is neither impos­sible in Nature or Law, this shall suspend the devise untill it be performed: Brit. c. 36. Perk. 570. Brac l. 2. c. 6. n. 1, 2, 3. Swinb. part 4. Sect. 13. And this is so farre true, that sometimes words are extended beyond their naturall intent; [Page 144] See the rest of his tit. and sometimes for causes restrained, Fulb. 41. Pl [...]w. 540. by reason of the conjectured will and mean­ing of the Testator.

30. A. deviseth Lands to B. conditionally, that he pay so much money: Although by force of words B. hath an Estate for life on­ly, yet the Law adjudgeth him to have a Fee-simple, Brac. Test. 18. Perk. 555. for otherwise if B. should dye in a short time, He might receive more pre­judice then profit by the Devise.

31. A. deviseth all his Lands and Tene­ments to B. B. shall not only have all the Lands and Tenements which A. had in pos­session, but the Reversion likewise. Termes, v. Devises.

32. If Lands be bequeathed to One, to have any to hold to him for ever: Or to have and to hold for him and his Assigns for ever: In both Cases the Devisee hath an E­state in Fee-simple, although there be no mention of Heires, Id. ib. which notwithstand­ing some affirm joyntly. Perk. 557.

33. If a man bequeath Lands to another in these words, I give my Lands to A. to give them, or sell, or dispose of them at his discreti­on: This is a Fee-simple. Terms, ib.

34. A Testator bequeatheth Lands to A. and the Heires Males of his Body: A. hath Issue only, a Daughter, and of her a Grand-son. In this case the Grand-son shall succeed in the Lands by force of the Devise, rather then the Devise shall remain ineffe­ctuall; notwithstanding that in other Dona­tions it is otherwise. Id. ib.

35. If I devile Lands to my Son after the death of my Wife, although I doe not ex­presly [Page 145] give it to my Wife, yet our Law [...]elpes her by a favourable Construction. Id. ib. Pl. 414. Bro. Exec. 175. 13. H. 7. fol. 17.

36. I devise a Fee-simple to A. for a 100. yeares, upon this condition, if that he shall pay ten pound yearly to B. the remainder of the said Lands to C. and his Heirs. In this case, although A. shall break his Condition, yet the Remainder as to C. is not hurt, al­though the Law be contrary in Contracts made amongst those who are living. Perk. 504. 565, 566, 567, 568, 569.

37. A man deviseth all his Lands to A. upon condition that he give a 100. pound: And in case the Condition be infringed, then to his owne Family. In this case our Law determineth this Devise to belong to him who is next of Kinne to the Testator by blood. Fulb. 46.

38. A man deviseth to another all the Grain which he hath in such a Barn: And af­ter the Will is made, hee puts more Grain into the said Barne. In this case the genera­lity of the words is restrained to that which was there at the time when he made his VVil, for that the Law presumes the Testator to have meant only of that. Id. fol. 41. Plow. 341.

39. A. after many Legacies in his VVill deviseth the Remainder and residue of all his Goods to his VVife E. in these words: The residue of all my goods I bequeath unto my deare wife E. [whom also I doe ordaine full and sole Executrix of this my last will and Testament] to be disposed of by her for the good of my soule, and the payment of my debts. E. takes upon her the Office of Execution, and payes all [Page 146] Debts and Legacies. Afterwards she enter­marryeth with B. who getting possession of the said Goods (having made his VVill, and ordained his Executors) dyes before E. Here the question is, whether the Goods which E. brought to her second Husband, shall revert to her? Or whether they belong to the Exe­cutors of B. And it was determined, that they should revert to E. because the residue of the Goods were destined to certain uses, and not left to her disposing. Dyer, fol. 331. n. 21.

40. A. being possessed to the value of 100. pound, and indebted 20. pound, divides his Estate by his Will: One moity to B. his Wife, the other moity to his Executors. The question was, whether B. shall have 50 pound, or 40 pound, and it was resolved that the might claim 50. pound: But if the Exe­cutors had aliened any of the Goods in Spe­cie, that then she could not challenge any of those which were alienated, because they were alienated. Dyer, fol. 164. n. 57.

41. Devises and Legacies are to be sued for in the Ecclesiasticall Court: Glan. l. 7. c. 7. Yet some restrain this assertion only to Chattels reall and personall; Perk. 570. for that the Ordinary cannot take Cognisance of Fees or Free­hold Id. 576, 577, 578, 579. devised. But a Prohibition will lye, if any Judg of any Spiritual Court shall cyte one before him in case of such a Devise as intrencheth upon the Common Law. Dr. & Stu. l. 2. c. 55.

Of the taking away, or transla­ting Devises.
TIT. XXI.

WHereas the Civil Law doth, ipso facto, null the Will for default of an Heir. L. 10. [...]. de jure codillo­rum. Ours doth not presently suffer Devises to become void for want of an Executor, or for default of an Executors undertaking the Office, but appoints Administration of the Goods to be committed to another, accor­ding to the Judgment of the Ordinary, who obligeth the Administrator to the payment of Legacies, at least as farre as the Estate will reach. Bro. Exe­cutors.

1. Lands, Tenements, and other Heredi­taments whatsoever, devised by a Testator: If they shall happen afterwards to be aliena­ted by him, and are again redeemed: They are equally due to the Legaree, as if they had never been alienated. Id. Devise, 8.

Of that Law which the Romans cal­led Lex Falcidia.
TIT. XXII.

THe first duty of an Executor taking upon him the Office, is to satisfie the Debts of the Testator: and therefore it wil not be amisse to consider what Antiquity hath adjudged in these cases. If there be Debts owing to many [saith Bracton] L. 2. c. 26. Glan. l. 7. c. 5. Flet. l. 2. c. 57. one may be preferred be­fore another. The King is first, and it shall be lawfull for the Sheriffe, or any of the Kings Bailiffs [shewing the Kings Letters Patents, De summonitionibus scaccarij] to take an Inventory of such Goods and Chat­tels, as they shall finde in the Lay-fee of the party deceased, and to attach them to the value of the Debt which is coming unto the K. per visum legalium hominum [as we call it] so that nothing be removed or taken thence untill such a Debt as shall appear due be pay­ed, and the residue of the Chattells to be left to the Executors. To the acquitting of which Debts or any other, the Wife of the party deceased is not to contribute any thing out of her Joynture, for that the Wives Joynture ought to be free, F. N. B. fo. 151, a. which holds true, ex­cept where the Husband is indebted to the King before the Title of Joynture. In the second place are to be deducted debts due to others, such as are clear and acknowledged; amongst which are to be reckoned services [Page 149] and Servants wages, provided they be cer­tain: But if they be incertain, although they depend upon courtesy: Yet if their stipends shall be set by the Will of the Testator or his Friends, they shall be deducted out of the Goods of the deceased, so shall Funerall Charges. The Wife also shall have her ne­cessaries, even her lodging in her Husbands cheife Mansion house for 40. dayes, unlesse her Dower be sooner assigned.

1. But that the Estate of the Party decea­sed may the better appear, the Executors or Administrators, with the privity, and by the assistance of two at the least of the Creditors or Legatees: Or if they refuse, then two of the next of Kinne [provided they be uncon­cerned] of the Deceased: Or upon their de­nyall, then of any two honest men, who are obliged to take true and faithfull Inventory of all the Goods and Chattels, Moveables & Immoveables, which the Party deceased had at the time of his death, and to write all and singular the said Goods justly apprized in 2. Charters or Tables indented: The one to be reserved to themselves, the other to be deli­vered to the Ordinary; But if the Testator had appointed any of his lands or Tenements to be sold, the money or profits thence arising are not to be put into the Inventory. 21. H. 8. c. 5. Swinb. part 6. Sect. 9.

2. But the Heirs are obliged to satisfie the Debts of their Ancestors, which the Chattels will not suffice to doe. Glan. & Brac. ubi sup. Yet if the whole Estate of the Testator would not suffice to pay Debts then, the Kings Prerogative ex­cepted, there used in former times to be a de­falcation every where. Brac. ib.

[Page 150] 3. And even at this instant the Law is, that Legacies are not to be paid before debts be satisfied; for in such cases the Executor is bound to pay the Creditors out of his own Estate, Dr. & Stu. l. 2. c. 11. Bro. Execut. 116. Perk. 488. yet is hee not tyed to pay every one that demands a Debt, but those only against whom the Testator, had he lived, could not have waged his Law. Bro. ib. 79. 87. 127. 163. 172. Dr. & Stu l. 2. c. 11. Plo. 181. Dyer, fol. 23. n. 144, 145 & fol. 80. n. 53, 54, 55.

4. The ancient Law seems to be somewhat changed, as to the priviledg of Creditors: Yet even now it seems that the Executor may in the first place allow moderat Funeral charges, and then satisfie Creditors accor­ding as the Law prescribes: and of those, the King is first by his Prerogative. Mag. Char. c. 18. Next him, those to whom the Testator was obliged by Statute-Merchant, or Recognisance. In the third place, those who have Judgments against the Testator. Swinb. part 6. Sect. 16. Fourthly, penall Obligations: Bro. ib. n. 88. 172. And of these those have priority, whose dayes for payment are lapsed, Dyer, fo. 80. n. 54. and of those [if there be many] they who sue first: But if they commence their suits to­gether: Or that dayes of payment be not yet come, then it is in the power of the Execu­tor to gratifie whom he pleaseth. Next to penall Obligations follow simple Bills, Swinb. ubi super. as wee call them. And lastly, Contracts without writing, against which the Testator could not wage his Law. As Servants Salla­ries, and Rent of Lands or Houses, whereof the Testator was Lessee for years or life, and the like. Bro ib. n. 33. 87. 127. 163. But as for made Contracts, Ex­ecutors are not obliged to pay them: Id. ib. Yet according to the opinion of some, these [Page 151] have their remedy in an Action upon the case upon a promise of the Testator. Termes, v. Execut.

5. If a Creditor be made Executor, hee may in the first place satisfie himselfe, after which he is bound to pay the other Credi­tors out of the residue. Plow. fol. 185.

6. If after Debts paid, there remaines e­nough to satisfie Legacies, every Legatee may of right claime his whole Legacy; O­therwise only according to the proportion of the Estate, and the quantity of all the Le­gacies: Yet so, that the Executor may first deduct charges, bonafide expended, and des­perate Debts: But under the notion of lex falcidia, we have not any thing, nor is there any thing in that nature required from the Office of a Judge: But as to those Goods which are not devised, they are convertible to the use of the Executor. Perk. 525.

7. Executors of Executors are obliged to the payment of the first Testators Debts, un­lesse his Goods appeare to be fully admini­stred by their Testator. Dyer, fo. 174. n. 21, & 22. 25. Ed. 3. Stat. 5. c. 5.

Of those Trustees which the Roman [...] called Fidei Commissarii Hae­redes & ad sanatusconsul­tum trebellianum.
TIT. XXIII.

THese Inheritances are out of use with us, yet those Trusts are something parallell to them, by which wee are used to give our Lands to Strangers to the use of us and our Heirs, or to private persons to the use and profit of a Body politick. But those inventi­ons of Uses being injurious to the Prince, and to the Lord of the Mannor, Coo. l. 1. Shudleys case, fol. 123. are by Acts of Parliament either wholly taken a­way, or at least for the most part altered. 1. R. 3. c. 1. 4 H. 7. c. 7. 27. H. 8. c. 10.

Of things left Per fidei com­missum.
TIT. XXIV.

OF those things which were by the Ro­mans termed Fidei commissa [excepting those which are appointed to the next Title] we have no mention in our Law, they being [Page 153] left wholly to the Civill Lawes definiti­ons.

Of Codicills.
TIT. XXV.

THe terme Codicillus is seldome used with us; wherefore in this we only follow that which we borrow from the Civill and Com­mon Law, unlesse it containe either a Fee or a Free-hold. In which cases they are to be proved only before an Ecclesiasticall Judge, and to receive their Interpretation according to the Lawes of the Land.

The End of the Second Booke.

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

Of Inheritances which are con­veighed from such as dye even Intestate.
TIT. I.

THERE is also another way of gaining Dominion, which is by Succession, and which happens to all Heirs of such things whereof their Ance­stors dyed, seised in Fee, or whereof they were at any time seised, as of Fee by Right of Inheritance, without having alienated them. And this Discent ought to be to the next Heirs, Males or Females, in a direct or transverse line: Wherefore Right, [Page 155] like all heavy things falls downwards dire­ [...]ly or transversely, nor doth it ever ascend [...] same way, by which, by the death of the [...]ncestor it discends, yet doth it collaterally [...]scend, sometimes for want of Heirs to whom [...] may discend. Glan. l. 7. c. 1. Brac. l. 2. c. 29. n. 1. Dr. and Stu. l. 1. c. 7. Flet. l. 6. c. 1. and c. 2.

1. A Right discends to the Heir, where­ [...]ever born, whether in the womb, or beyond [...] on this side the Sea, and that whether within or without the Dominions of the King. Provided, his Parents be the Kings Leige People, and that the Mother went o­ver Sea with her Husbands leave, nor can any man create to himself an Heir, because God only makes them, and because, Haeres, is not ab Haereditate, but Haereditas ab Here­de.

2. Now Inheritance is a Succession to the whole right, which the Ancestor decea­sed had in Fee, upon what cause soever, whe­ther by Acquisition or Succession, with Sei­sin or without, and if by Seisin, then at what­soever he was seised, either in his life time, or at his death, namely upon the day, on which he died, and if the right discend to more Heires, successively, and without Seisin; yet the Heir hath the same Seisin appertai­ning to him as the Ancestor had in the time of his life, or at his death. And where there is a participation or meeting of Propriety with the Seisin, the Heir hath immediately, Ipso facto, a Free-hold. Glan. and. Bract. ib. 25. E. 3. Stat. 2. and 42. E. 3. c. 10. Flet. l. 6. c. 1.

3. Our Authors do not make in the case of Heirs a like division, some distinguish them into nere and more Remote, Glan. l. 7. c. 3 and some [Page 156] into neer and more neer, remote and more remote, Bract. l. 20. c. 30. n. 1 Brit. c. 118. Flet. l. 6. c. 1. and 2.

4. If one have many Sonns they are all neer Heirs, those that were last born, and those that were born before them, Bract. ib. and so are Daughters when Sons faile. Glan. ib.

The next Heir, is he who was born first, Bract. ib. unlesse the custome of the place hinder, Glan. ib. or that he be a stranger, and the younger Brother a Denizen, Dr. and Stu. l. 1. c. 7. and c. 20.

6. An Heir remote is where one hath many Sons and Daughters, the Sons are neer heirs and the Daughters remote, this holding al­waies for a Rule, that the males shall be pre­ferred before the females of the same degree, Bract. l. 2. c. 30. n. 3.

7. If there be many Sons, and no Daugh­ters, but Grandsons, the Sons shall be neere Heires and the Grandsons remote, Id. ib. if there be many Daughters and no Sons, they shall be all next Heirs. Glan. ib.

8. So may they be tearmed more remote in respect of the Inheritance, being more re­mote as the lineall Nephew or Neices Son, his Grand-son, his great Grand-son, his great, great Grand-son, &c. In the direct line, or if there want of that line, then in the transverse, Ad infinitum. Bract. l. 2. c. 20.

9. It is the ancient custome of England, that the eldest Son should succeed as Heir to his Father, but where there is no Son but Daughters; then all the Daughters shall be Co-heirs, Dr. and. Stu. ib. Glan. ib. Flc. l. 6. c. 1. which is also true in Nephews, & their Children, where males are wanting.

10. And this was alwaies a Maxime, that [Page 157] a Fee-simple could never ascend from a Son [...]o a Father or Mother or any other Ancestor▪ [...]n a direct line, Coo. l. 3. fo. 40. Ratlifes case. Dr. and. Stu. ib. Bract. l. 2. c. 29. Lit. l. 1. c. 1. Brit. c. 119. nor can any one in a [...]ransverse line, succeed, so long as there is an Heir, to whom it may discend in the direct. Bract. l. 2. c. 31. n. 1. Flet. l. 6. c. 2.

11. That Issue which is born before marri­age is by our Law a Bastard, nor can it suc­ceed in an Inheritance, nor can a Ba­stard have any Heir save of his own Body. Dr. and Stu. ib. 20. H. 3. c. 4. Perk. 49. 50.

12. Chattells neither personall nor reall come unto the Heir but by the custome of the Kingdome to the Executors, or from an Intestate to the Ordinary; and from him to the Administrators whom hee shall ap­point, Glan. l. 7. c. 16. Perk. 48. or if no body will administer, then ought the Ordinary to sequester them upon his own perill. 13. E. 1. c. 19. 31. E. 3. c. 1 [...]. 21. H. 8. c. 5. Flet. l. 2. c. 57. Dier. fo. 277. n. 57.

13. The Lord of the Mannor is in stead of Heir, when either through defect, or in case of Felony, the blood is extinguished, Flet. l. 6. c. 1. yet at this day this is not without distincti­on.

Of the legall Succession on the Fathers side.
TIT. II.

IN the transverse or collaterall line, the Rule is, that those are Heirs who partake [Page 158] of the whole Blood with the party deceased. For example, A. hath Issue B. a Son, and C. a Daughter by one Venter, and D. a Son by a second Venter, and dies B. succeeds him and dies without Issue, in this case C. the Sister shall succeed and not D. Lit. l. 1. c. 1. Brit. c. 119. n. 7. Flet. l. 6. c. 1.

1. So also A. having a Brother B. and two Sons, viz. C. by one Venter, and D. by ano­ther dieth, to whom C. succeeds and dies with­out Issue, in this case B. the uncle who is of whole-blood shall succeed, and not D. the Brother, Lit. ib. Coo. l. 3. Rat. case fo. 40. but if B. dy without Issue then D. shall succeed, being of intire blood with him both by the Grandfathers side and Grandmothers: And therefore, if B. had not been Brother to A. both by Fathers side and Mothers side, it should have been other­wise.

2. The collaterall line is double, one des­cending by the Brother to his Children, the other ascending by the uncle, but none suc­ceed on the ascending line, but for default of Heirs on the descending. Bract. l. 2. c. 30. n. 1. Brit. c. 119.

3. He is Heir in the collaterall discen­ding line, who is neerest in degree, and if this line fail, then he who is next to the par­ty deceased in the ascending collaterall line. Bract. ib. Flc. l. 6. c. 2.

4. If there be two in the same degree, and both males, the elder is to be preferred; but if they be male and female, the male is Heir, as in the direct and right line. Brit ib. n. 1. 2. and 7.

5. Where an Estate comes by the Mothers side, there the Son dying without Issue, the next of kinn on the Mothers side is Heir, and [Page 159] not the Brother of the Father, Id. ib. but where the Son purchaseth an Estate with his own Mony and dyeth without Issue, there the next of kinn on the Fathers side shall suc­ceed; and not on the Mothers side, unlesse for defect of Heirs on the Fathers side, Lit. l. 1. c. 1. Coo. l. 3. Rat. case. fo. 39. but the Heir on the mothers side shall succeed, rather then the Land shall escheat to the Lord. Plow. 444.

6. A. hath two Sons, B. and C. B. in his Fathers life time commits Felony, and is pu­nished with Death, after which A. dies, the question is whether the Fee whereof A. died seised, shall escheat to the Lord, or discend to C. the second Son. And here it is to be considered, whether B. dyed without Issue, for then it discends to C. otherwise it shall escheat, Dier. fo. 48. n. 15. but if B. had been condemned living his Father, and survived him; In this case notwithstanding his dying without Issue, the estate should have escheated and not dis­cended to C. Kitchin, tit. Escheat, f. 110.

Of the Tertullian Decree.
TIT. 3.

WEE in the case of Fees follow the Rigour of the twelve Tables, which will by no means suffer an ascending from Children to Parents, Bract. l. 2. c. 29. n. 1. wherefore if this seem harsh to any one we shall wish him a [Page 160] Tertuilian, or Claudius, to perswade our Se­nate to the contrary.

Of the Orphitian Decree.
TIT. IV.

CHildren with us doe equally, succeed to Inheritances comming from the Fathers or Mothers side, and that by the same rules, and in the same degrees, Flet. l. 6. c. 9. wherefore we have no need here of an Orphitius.

Of the Succession of Cozens by the Mothers side.
TIT. V.

THe Romans called those particulerly, Cognati which were allied by the female side, Ult. S. 1. [...]. de gradibus affini­tatis. but there remaines nothing to be spoken of them, the two former Titles being considered, viz. The first and second of this booke. where we have shewn: That these are never to succeed as Heires, but for default of Heires on the Fathers side; which is so to be understood, that the most remote Cozens on the Fathers side discending in a direct line, but not in a collaterall, are to be preferred before the neerest on the Mothers [Page 161] side, for the great great Grand-child of my [...]neall Niece, or of my Sister, shall succeed [...] before my Sons or Daughters, Cozen- [...]erman. Bract. l. 2. c. 30. and 31.

1. This breifly I thought also to insert, that [...] default of Heirs in a right line discending [...] in each collaterall line, the Land shall [...]scheat to the Lord of the Fee. Glan. l. 7. c. 17. Bract. l. 2. c. 29. n. 1. Lit. l. 1. c. 1. F. N. B. 143.

Of the degrees of Con­sanguinity.
TIT. VI.

HAving mentioned degrees, it is requisite to take a view of the persons who are [...]n possibility of succession, and who are pre­ferred before others in succession, from the first degree of the same line to the last. Bract. l. 2. c. 31. n. 2.

1. In the right line ascending are these, Grand-Father, great Grand-Father, the great Grand-Fathers Father, the great Grand-Fathers Grand-Father, the great Grand-Fathers great Grand-Father, and so ad infinitum. Id. ib. Flet. l. 6. c. 2.

2. In the right line discending, Father and Mother are first which make the common root, then Son and Daughter, the Nephew and Neice, and so, Ad infinitum. Brac. and Flet. ib.

3. In the collaterall line ascending, Bro­ther or sister, of Father or Mother make the [Page 162] second degree, and so their Heirs, Ad infini­tum. Id. ib.

4. In the collaterall line discending are Brother and Sister, and their Heires, Ad in­finitum. Id. ib.

Of the Consanguinity of those who are servile.
TIT. VII.

THis Title is with the ancient Civilians reckoned as part of the former Wesenb. in the same Title. no [...] doth our Law determine any thing in the cases of such as are manumitted, contrary to the rules of those who are born free, there Marriages being a like lawfull.

Of the succession of such as are made free.
TIT. VIII.

PAtrons are not with us admitted to suc­ceed those who are made free, in case they dy without Issue, wherefore if any one pur­chase a Fee after Manumission and dy with­out Heirs, the Lord of the Fee shall claim it by Escheat; and not he who gave the party [Page 163] deceased his freedome, F. N. B fol. 143. T. &c. the same rules are also for the Chattells of such dying In­testate as for those who were born free.

Of the assignation of such as are made free.
TIT. IX.

THere is no difference with us between those who are manumitted, and those who are born free, save that they some time were Servants, wherefore we have no use of this kinde of Assignation in our Common­weath.

Of the possession of Goods.
TIT. X.

THE supream power with us gives the possession of a Fee to the Heirs of them who hold the Fee of him by any kinde of ser­vice in Capite, for he by his Prerogative hath the primer seisin of Lands, Stan. Prerog. c. 3. and 13. F. N. B. fo. 255. and. 256. c. nor can the Heires receive them but by his hands, those who hold of other Lords by Knights service (much more Tenant in Socage) so soon as they come of age, enter upon their Estates by right, and in case their Lords hinder [Page 164] them, may have their Action, having satis­fied the value of their marriage. (b)

1. But for those goods which we call Chattells, the Ecclesiasticall Judge, who is in stead of the Ordinary, give possession of them according to the Will, or at least confirm the possession being taken, to the Ex­ecutors of the party deceased, but if there be no Will, then he grants Administration to the widow or next kinsman of the party decea­sed, yet so that the goods shall be distributed according to his Judgement, either amongst 31 Ed. 3. c. 11. them, or for pious uses. Linw. pro­vin.

Of acquiring by Adrogation or A­doption.
TIT. XI.

THere is nothing hinders, but that the English may adrogate or adopt, and be adopted, but in this Case, the consent of both parties is solely essentiall, for our Law determines nothing of this kind of acqui­sition, unlesse that which naturally falls out between party and party in contracts.

Of him to whom Goods are granted for Liberty.
TIT. XII.

AS for those Servants, who receive their Freedome from their Lords by Testa­ment, the cheif thing is the performance of the Will, for it is not materiall whe­ther the Executor will accept the Office. For we have shewn before, how ungratefull that old solemnity of the Romans, in Case of Wills is to us.

Of Successions which were amongst the Romans by the Sale of Goods according to the Claudian Decree.
TIT. XIII.

WE have not this kind of acquisition amongst us, yet have we something like unto it, for the Fees, and all other the Goods of Banckrupts (who having con­sumed their fortunes withdraw themselves, That their Creditors may not arrest them) [Page 166] wheresoever they be found are divided to­wards the satisfaction of Creditors, by such Honourable persons, whom the Statutes in this Case mention, 34 H. 8. c. 4 13 Eliz. c. 7. but above all, that most famous Act in King James his time doth most carefully provide in these Cases. 1 Jacob. Ses. 1. c. 15.

Of Obligations.
TIT. XIIII.

WE have before treated of persons and things, and are now to speak of Actions: Brac. l. 3. tr. 1. c. 1. now an Action comes from pre­cedent Obligations, as a Child from a Mo­ther, Id. ib. n. 2. an Obligation is a legall Bond or tie, whereby we are necessarily bound to the giving or doing of any thing. id. ib. c. 2. n.

All civill Obligations may be divided in­to two kinds, Obligations by the Common Law, and by Statute. The Example of the former, is that which vulgarly we call a pe­nall Obligation, &c. and of the later, that which we term a Statute Merchant, or what­ever [d] West. Symb. l. 1. Sect: 156: &c else takes its Originall from any Statute of this Common-wealth. 1 E: 1 Stat: 1: 38 E: 3: c: 4 New book of Ent: Action sur [...]e Statute: Flet: [...]: 6: c: 64:

2. An Obligation from a precedent cause, that is either from a Contract, or something of nature, or from a misdemeanour, or something of that nature. There are former Species of ob­ligations by Contract, by a thing done, by words, by writing, by consent.

How an obilgation is contracted by a thing done.
TIT. XV.

AN Obligation is contracted by a thing done, as by mutuall giving, which con­sists in weight, number, and measure, in weight, as in things which are weighed, as Brasse, Silver, Gold. In number, as in Money numbred. In measure, as in Wine, Oyl, Corn: now these things which being weighed, numbred, or measured, are given to this end, that the receiver hath immedi­ately a propriety in them, make a mutuall Contract, that being properly mutuall, which Ex meo, becomes Tuum, and when things of another nature are rendred to the Creditor, and not of the same. Glan: l: 10: c: 3: Bra: l: 3. tr: 1: c: 2, New book En: Debt. in Approm. 1, 2, 3, Flet, l, 2 36,

I [...] a man by Error payes money to ano­ther to whom it is not due, he shall recover it again by his Action upon the Case, and he who took what was not due, is ob­liged. In tit: this Title, Sect, 1,

2. He to whom any thing is given for him to make use of, is obliged in the thing lent, but there is a great difference between a thing mutuall given, and a thing lent, for he that receives a thing lent is bound to make restitution in Specie, or to the value, if accidentally it happen to be lost or consu­med, [Page 168] by fire, ruine, shipwrack, Theives [...] the incursions of enemies, or lost any other way: Nor is it sufficient, that he keep them with the same care and diligence as his own if any other person could possibly have pre­served it with more safety, but no man is ob­liged against a greater force or casuall ac [...] ­dent, unlesse they happen by his own neg [...] ­gence; as if one take a thing lent, home with him, himself being to go travell, and th [...] chanceth to be lost by the Incursion of ene­mies, robbers, or by Shipwrack: there is n [...] doubt, but in this Case he is bound to resti­tution. Brac. ib. Brit. c. 28. Glan. l 10. c. 3. F. n. b. 121. B. Dr. & Stn. l. 2 c. 138. Flet. l. 2. c. 56.

3. Now a thing that is lent is given [...] commodum, and is properly called Resco [...] ­modata, there being no reward given for its use by way of hire, and whatsoever is lent, ought to be lent gratis, for when any reward inte [...]veneth, it is rather a locution or put­ting to hire, then a lending. Brac. ib. Glan. 30. Flet. c. 13. ib.

4. He also with whom a man intrusts any thing is obliged, & bound to restore it, as also if he have committed any fraud or deceit in Brac. ib. Terms v. Gar­nishment. Dr. Stud. l. 2. 24. and 38. D. or Ent. Action sur le Case. Garder, & Hostler, and Gager delive­rance. V. n. b. 66 63. relation to it, but he is not obliged under the notion of a fault, as for carelesnesse and negligence, for that whosoever commits any thing to a negligent friend, it is to be im­puted to his own folly, but this Law seems now changed, unlesse he that received the thing in trust, promiseth expressely to keep it as his own. Coo. l. 4. Southcots Case

5. A Creditor, who receives a Pledge, o Pawn is also obliged, and bound to restore it and of such things are given for the conve­niency [Page 169] of both, viz. by the Debtor for to procure the money to be lent him, and to the Creditor for his security, it is sufficient to keep it with a due care, which if he shall perform, and accidentally loose the thing be­fore the debtor tender the money, he is se­cured, nor shall he be hindered from recove­ring his Debt, Brac. ib. Glan. ib. F. n. b. 86 C. boo. Ent. Action sur le Case Gage 1. and Termes v. Mortgage. Flet. l. 2. c. 56. now we call that a due care and diligence, which a man hath to­ward his own Goods. Coo l. 4. Southcots Case.

Of obligations by words.
TIT. XVI.

A Verbal Obligation is contracted or made by Covenant, now a Covenant is a certain conception of words which con­sist of Question and answer, as if it be said, dost thou promise? I do promise. Wilt thou give? I will give. Wilt thou do it? I will do it. Wilt thou ingage? I will ingage. Brac. ib. n. 2. Brit. c. 28. Flet. l. 2. c. 56.

1. Every Covenant is either pure or limi­ted to a day, or conditionall. Pure; as where it is said, dost thou promise to pay so much money? without adding any day or condition, in which case the money may be demanded immediately, but if there be a day added when it ought to be paid, it is imme­diately due, but cannot be demanded before the day, nor upon the day, because the whole day is left to the discretion of the [Page 171] Debtor, (b) nor is it certain that it will not be paid that day, before the day be past, nor can any one in like manner demand if one promised to pay this yeare, or this moneth, before every part of the year or moneth be past. Brac. and Brit. ib.

2. A Covenant is made sometimes condi­tionally, as if it were said, if A. be made Alderman, dost thou promise to pay so much? where observe, that in this which is condi­tionall, there is only hope, and expectation, and conditions which relate either to time past or present, do either totally adnull the Obligation, or else not at all differ it, as if a promise be made to pay so much, if A. were living, or be now living, for if he neither were living, nor yet is living, the promise is void, because those things which in na­ture are now certain, do not vitiate an Ob­ligation by their being incertain as to us. Brac. ib. n. 3. Brit. ib. Flet. ib. Dr. and Stu. l. 2. c. 35.

Things to be done, may also be resolved into promises, as a promise to do a thing, or not to do a thing, in which Case it is best to add a penalty because of incertainty, or least the Actor be forced to prove the value, now a penalty is thus added, if this be not done, then thou promisest to pay so much, Nomine pe [...]e. Brac. ib. n. 4. Flet. ib.

4. But it is to be observed, that this ver­ball Obligation is called a simple contract, Dr. & Stu. l. 2, c. 24. by out Authors, who weigh that which is done F. n. b. fo. 119. G. West. l. 2. Con­tracts. Sect. 3. Sec Dier fo. 90. n. 8. & fo. 336. n. 34. more strictly then the definitions of things and that they do not bind, unlesse there be as consideration, or a quid pro quo, F. n. b. fo. 120. K. and 112 H. Bro. Con [...]racts 5 Dier 272. n. 31. 32, and fo. 296. n. 22. as [Page 170] where a promise is the occasion, that any one [...]oth hat which otherwise he is not obliged [...]nto. Dr. and Stu. l. 2. c. 20, & 24.

A Covenant in the Civill law is perpe­ [...]all, but with us a Contract, though in [...]riting doth not oblige the Heires, Execu­ [...]ors, or Successors, Dier, fo. 23. n. 142. without which they be [...]pecially named, or that the King be Cre­ [...]itor. Flet. l. 2. c. 6. Bro. Garranty 89. Coo. l. 2. Cromwells Case. Plow. 457. Dier 14. n. 67. and f. 42. n. 12. Nor doth it work anything, as to [...]mmoveables, Plow. ib. much lesse therefore will [...]n Action lie against Heirs or Executors, upon a verball contract.

6. VVe do seldome contract upon a bare promise, especially in things of consequence, because it is often made void by a wager in Law. B [...]o. Lega­ger throughout.

Of the two parties in a Covenant and Promise.
TIT. XVII.

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

Of the Covenants of Servants
TIT. XVIII.

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

The Division of Covenants.
TIT. XIX.

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

Of void and unprofitable Covenants.
TIT. XX.

IF a man promiseth to give a thing which is not in Re [...]um natura, nor cannot be pos­sibly, it is Brac. ib. n. 5 Flet. l. 2. c. 60. void, so if one promise that which [Page 173] is not any ones particularly, as a thing sacred [...]r publick. Brac. ib.

2. So he that promiseth another man, who is not under his power shall give or do [...] thing, is not obliged. Brac. ib. Perk. 759.

3. If one covenants for another, then [...]or him whose Villain he is, it worketh Brac. ib. Brit. c. 28. Flet. l. 2. c. 56. [...]othing.

4. He who answers not according to de­mand, nor according to what he is asked, (as if one covenant to pay me tenne pounds, and another promiseth five pounds, or if one covenant absolutely, and another conditionally) makes his covenant nothing. Brac: ib: n: 4. Flet. ib.

5. Nor are Covenants or promises worth any thing, being made with or to them, who are under our power. Brac: ib,

6. He that is mute can neither Covenant nor promise, since he cannot speak nor ut­ter words congruous to a Covenant, which is alwayes received as to those who are deaf, because he who covenants ought to hear the words of him that promiseth, and he that promiseth of him that covenanteth, unless it may be done, by signes or writing, nor is this spoken of those who hear with difficulty, but of those who hear not at all. Brac. l. 3. tr. 1. c. 2. n. 8. Brit. c. 28. Flet. ib.

7. A mad man cannot covenant, nor indeed do any thing, because he doth not understand what he doth. Brac. ib. Brit. ib. Per­kins, 3, 4, 5. Coo. l. 4. Be­verleys Case. f. 123.

8. Whatever also is covenanted with a Monk Brac. Brit. and Perk. ib. feme covert, Id. ib. and Perk. 722. 735. or servant Broo. Gon­tracts 40. in and for their own persons, is invalid, as also by him who is condemned of felony, as far as it re­dounds to the prejudice of the King, or Lord. Perk. 26, 27. &c.

[Page 174] 9. Those Covenants and bargaines which are extorted by force and fear are invalid▪ as if any one by reason if Duresse of Impri­sonment promiseth or granteth any thing b [...] word or writing Brit. ib. Perk. 16. 19. Fulb. paral. c. bar­gaines fo. 15. which is so to be under­stood if the pact or agreement do at all relate to the thing for which the party is impriso­ned, Perk. 18. so if any one threaten to kill, im­prison, or beat me, if I do but give or sell him such a thing, it makes the gift invalid, unlesse the fear be lesse then usually happens to a resolved man. Fulb. ib. Flet. l. 3. c. 7. Plow. fo. 19.

10. So neither can an Infant, or he that is next to an Infant, and who differs not much from a madman, Covenant, unlesse it be for his own benefit: And by the Authority of his Guardian, Bract. ib. 5. Brit. ib. yet in some cases an In­fant is bound. Plow. fo. 364.

11. A Covenant is made also invalid, by a condition which is naturally impossible; as if the Covenant be to give me so much if I touch heaven with my finger, Bract. and Brit. ib. Flet. l. 2. c. 56. Dyer. fo. 169. n. 1. but if it were conditionally I did not touch Heaven with my finger, that were good, and be comming absolute and pure, and the Money may be immediately demanded. Bract. &. Fle. ib.

12. A Covenant is unprofitable also, if it be to pay so much to day, in case such a ship shall come from Asia to morrow, yet although it is preposterous, it shall not be rejected, Idem. ib.

13. But that Covenants, and Obligati­ons may be in writing it is evident; for if it be written in an Intrument, that a man pro­miseth, [Page 175] it is so to be construed, as if it were in answer to a preceding question. Bract. ib. n. 8. Flet. ib.

14. If where many things are reduced in­to a covenant, the Obligor promiseth simply; so I promise to give: He is obliged to all; and if he promiseth one thing solely of many or some certain things, the Obligation is contracted into those to which he answereth, Bract. ib. n. 5 Flet. ib.

15. But there are such Covenants and Ob­ligations at this day found out for this pur­pose, that every one may have and assure to himself his own Interest, if there be any thing done against it which is mentioned in the Covenant, and if the thing mentioned be given to another, yet notwithstanding the Covenanter shall have his interest, because the Obligor is bound to the interest, or to the penalty, if there be any, Bract. ib. n. 9. Dr. and Stu. l. 2. c, 20. and 21,

16. If any one Covenants with another, himself being interested, it seemes that he is pleased; the Covenant shall be good, as if a Guardian Covenant with his Ward. Brac. ib.

17. It is to no purpose for any one to Co­venant, that that which is his own shall be his own in the same manner and form as it is his, for that which is once mine by one cause, and from one, during my possession, cannot be mine again by the same cause, and from another.

18. If the Covenanter thinketh and suppo­seth one thing and the Obliger another, the Covenant is no more valid then if there had been no answer at all to the question. Brac. ib. n 4. Fleta ib.

19. Nor is it valid if any one covenanteth [Page 176] with thee to commit an Homicide or Felony, &c. For thou shalt not by this be obliged. Brac. and Brit. and Fleta, ib. Perk. 723.

20. A Promise is invalid also to the Keeper of a Goale or Prison, that a Prisoner upon Execution shall not escape or break Prison, for wee suppose this [...]o be against common Right and Law, which wills that men impri­soned for debt should be kept more strictly, that they may more willingly and readily en­deavour to satisfie their Creditors, Bro. conditi. 45. 85. Cromp. Jurisd. fo. 10. Dyer fo, 118. n. 1. and fo. 34. n. 33. which seems true in all cases, where the Prisoner is not baile-able. Plow. fo. 63. &c.

21. Where a man covenants under any Condition, and dies before the Condition be performed, though the Condition be yet in being, yet our Law doth not give any Action to an Heir or against an Heir. Coo. l 2. case Crom. fo. 78. and 79.

22. If there be any day of payment men­tioned which will never come, as Doomes­day, &c. it is immediately due, Bro. obligat. 58. a Cove­nant for the person of a man or for an Estate is good. But the thing so mentioned in the Covenant cannot be demanded, before so much time be past, as wherein it may con­veniently be delivered.

23. It doth not seem that one can well be covenanted with by a Body politick, because they obleige themselves to nothing, save under their common seal, Bract. ib. n. 2. Bri. ib. Coo. l. 3. Butters case fo. 28. &c. Fulb para. c. Barg. fo. 14. A. but if one buy­eth any thing which is converted into the use of a Body politick, the whole Body seems to be bound. Broo. Corpo­rations 53.

Of Sureties or Pledges.
TIT. XXI.

HE, whom the Civill Law calls Fide ju­stor, we call Plegius or Surety, when [...]ny thing is lent to another it is used to be [...]one by the giving of surety, in which case [...] the principall Debtor faile, so that he is [...]nable to pay, then we have recourse to the [...]reties Glan. l. 10. c. 3. and not before Brit. ib. Flet. ib. F. N. B. 137. F.

1. Now Sureties, if there be many, are e­ [...]ery one obliged in the whole, unlesse it be [...]therwise covenanted, when they become [...]ledges, and that satisfaction was to be requi­ [...]ed from them altogether, so that if many [...]uretys were given, and some or more of them [...]ecame insolvent, the whole burden of ac­ [...]uitting belongs to the rest either for the [...]hole, or for so much as they have made de­ [...]ault. Gla. l. 10: c. 5. F. N. B. 122. K.

2. But if in case of giving sureties, some [...]ureties do oblige particulerly, for certain [...]arts, as for what shall happen as to those [...]articulers whereto they oblige, they are [...]ot responsible for any more then those par­ [...]iculers to which they do obleige. Glan. ib.

3. Now if sureties happen to be sued [...]hrough default of their Principalls, and be [...]ompelled to make payment, they may have [...]heir Action, against him n. Bo. entr. Pledges, 2. F: N. B. fo. 137. l. and 146. B. Flet. l. 2. c. 63: that was princi­ [...]all.

Of obilgations by writing.
TIT. XXII:

ONE may be obliged also by writing, [...] if one writes that he oweth another, [...] is indebted to another, he is obliged by [...] writing, whether the Money be numbred [...] not, nor can be except against the writing that the Money is not numbred, because [...] hath in writing acknowledged himself [...] debred. Glan: l: 10: c. 12: Bract: l: 3: tr: 1: c: 2: n. 9: Brit: c: 28: Flet: l: 2: c, 56.

1. Obligations in writing are of a higher nature and more binding with us then Cor [...] ­nants; for in these there needs no conside­ration to be expressed, Plow: fo: 308: if in any case there [...] be a verball Contract which is afterwar [...] reduced into an Obligation in writing, the former Contract is wholly extinct, nor wi [...] there arise any Action from it, but the Bo [...] only remaines in force, F: N. B: fo: 121: Bro: Obli­gat: 21: which notwith­standing, in case of Debt upon record, [...] another former Obligation in writing is [...] ­therwise; Bro: ib: 23: Fulb: c. Bor­rowing, fo: 52. Dier, fo. 21: n: 131. nor is an Obligation in writing made void or discharged by any verball pro­mise of not requiring the Money. Dier, fo: 51: n: 12:

2. Now of this there are two sorts: th [...] first, is called simple, or single, where in th [...] Obligor or Debtor only acknowlegeth th [...] Debt, and promiseth payment: the othe [...] Conditional, which obligeth to a greater [...] [Page 179] as namely double) with a condition annex­ [...]d, which freeth from the penalty, provi­ [...]ed the principall Debt be paid at a day as­ [...]gned.

3. And this is divided into Conventio­ [...]all and Judiciall. Conventionall is that [...]hich by consent of Parties is written and [...]aled, and delivered before private men. The Judiciall is that which is entred into be­ [...]ore a Judge, or one that is in stead of a [...]udge: Of which sort are Recognisances [...]nd Statutes Merchant, and of the Sta­ [...]le. N. B. Entr. Action sur le Statut.

4. A Recognisance is an Obligation in [...]riting inrolled, or upon Record, testifying [...]he Debtor or Recognisor to owe such a sum [...]f money to the Creditor or Recognisee, and [...] acknowledged in a Court of Record, or [...]efore a Judge, or publque Minister authori­ [...]ed to take it. Now these are the Masters of [...]he Chancery, the Justices of either Bench, [...]he Barons of the Exchequer, Justices of the [...]eace, &c. And those are properly called Recognisances, which are not sealed by the Recognisor, but written and enrolled in the Arches and Treasuries of the Court. The power and force of which is such, that for non-payment Execution is granted, and the Creditor hath possession given him of all the Chartels of the Recognisor (except his Oxen and other Instruments necessary for Husban­ [...]ry) as also of the moity of his Lands untill the Debt be satisfied. West. Simb. part 1. l. 2. Sec. 149. 23. H. 8. c. 6. & 37. H. 8. c. 9. Coo. l. 3. Her­berts case, fol. 11, 12.

5. A Statute Merchant is an Obligation in writing, sealed and enrolled, or upon [Page 180] Record [as we say] witnessing the Debtor to owe unto the Creditor such a summe: this is acknowledged before such persons as are ap­pointed by the Statute: As Clerks, who from their Offices are called Clerks of the Statute Merchant, the Maior, principall Guardian of London, or two Merchants [...] the same City, especially appointed: Or else the Maior, Recorder, and other fit men of o­ther Cities or Burroughs which have this power, and they are sealed both with the Scale of the Debtor, and of the King, for the King hath a speciall Seale for this purpose, divided into two equall parts, whereof the one which is least is committed to the care and custody of the Clerk of the Statutes, the other to the Maior or Gardian. The bo­dy of the Debtor is lyable to be taken upon execution of this Obligation, if he be a Lay­man, and can be apprehended: But if he be not, or cannot be taken within 3 moneths to make satisfaction, his Goods and Lands are lyable: West. ib. sec. 151. 13. E. 1. st. 3. 5. H. 4. c. 12. But if the Debtor be in prison, the Creditor must afford him Bread and Water. F. N. B. 116 O. & 133. C. 13. E. 1. Stat. 3. Broo. Stat. 15.

6. A Statute of the Staple is double, one properly so called, the other improperly. That which is properly so called, is an Obli­gation inrolled or recorded, which is ac­knowledged in the presence of the Maior, and of one or two of the Constables, and sealed by him. Now by force of this Obliga­tion, if the Debtor make default in payment, the Creditor by authority of the Praetor seis­eth and detaineth the Body, Lands, and [Page 181] Goods of the Debtor untill hee be satisfied, [...]rovided he be found within the limits of the Staple, or that his Goods may be taken. But if neither his Body, nor sufficient of Goods be found there, the Chancellour of England upon Certificate of the businesse, un­ [...]er the Seale of the Maior, decrees further, That both his Body and Goods, wheresoever they [...]e found, shall be taken, and his Lands exten­ [...]ed untill satisfaction made. West. ib. sec. 173. 27. Ed. 3. St. 2. c. 9.

7. That which is improperly called a Sta­ [...]ute of the Staple, is an Obligation acknow­ [...]edged before either of the Cheife Justices, Or in their absence, before the Maior of the Staple of Westminster, and the Recorder of London, and it hath the same force in Exe­cution as the other: But it is called so im­properly, because it is not only used as the other among Merchants, but according to that Example, amongst all the Subjects of England. West. ib. sec. 55. 23. H. 8. c. 6.

8. It hath been often questioned, whether that little peice of wood, which wee call a Tallie, with an Obligation written upon it, and sealed with the Seal of the Debtor, may be called an Obligation in writing: But be­cause letters written in wood may be easily raced out, and altered, it was resolved unfit to allow and open so apparent a way to de­cei [...]. Bro. oblig. 80. F. N. B. fol. 121. l.

9. These conventional Obligations ought to be in the first person, those which are in the third being of no force, though some will have these being made amongst Clerks in o­ther Nations beyond Seas valid. 38. E. 3. c. 4 Bro. Oblig. 51. 65.

[Page 182] 10. Amongst those Obligations in wri­ting, which wee call Faits or Deeds: there are some things so essentiall, that an Obliga­tion cannot be good without them, other things lesse necessary and essentiall. Of the first sort are writing in Paper or Parchment. Of the second, Inditing and Form: The o­mission of which doth not invalidate the Obligation. Coo. l. 2. Godwards ca [...]. fol. 5. Dyer, sol. 192. n. 26.

Of Obligations made by Consent.
TIT. XXIII.

OBligations are not only by writing and words, but by Consent; as in Contracts which are bona fide, namely Bargains and Sales, Lendings and Borrowings, Partner­ships and Hirings. Wherefore these kind of Obligations are termed Contracts by con­sent, in regard writing and Presence is not alwayes necessary. Glan. l. 10. c. 14. Brac. l. 3. tr. 1.. c 2: n. 9.

1. Wee must not here omit that our anci­ent Lawyers called those Obligations which were contracted by the Thing, Words, and Writings, or Consent; not so much Con­tracts, as the compleatings and perfectings of Contracts, to which they adde Livery and Joyning; Brac. l. 3. tr. 1. c. 2. n. 1. Brit c. 28. that is, an accumulation of A­greements, or adding Agreement to Agree­ment. [Page 183] Flet. l. 2. c. 60. For a Contract cannot be without consent, and therefore possible it was for that reason. The other Formes were rather Or­naments and Compleatings, because the Consent is chiefly materiall, and is in all, as giving being to a Contract, and something more, wherein the Consent is declared and proved.

2. We have spoken susticiently before of Livery. The joyning which we here intend, is, where many Agreements for one and the same thing are reduced into one Covenant. For many Agreements and Parts may be re­duced into one Covenant, as well as many things. Brit. ib. Brac. ib. n. 11.

Of Bargaine and Sale.
TIT. XXIV.

BArgain and Sale is, where there is an A­greement concerning a price betweene the Contracters, there being something re­ceived by the Buyer by way of Earnest, that being an Agreement of the Bargaine and Sale contracted, unlesse there be a day given for payment, in which case it is not necessary. Bro. Cont. 15. & Action sur le case, 60. But if there be any Writing intervening, the Bargain and Sale cannot be perfect, unlesse it be delivered to the parties, and absolute: And where there is neither writing, intervening, nor any Deli­very [Page 184] followes, they are at liberty, and the Contractors may without penalty recede. Glan. l. 10. c. 14. Brac. l. 2. c. 27. n. 1. Flet l. 2. c. 58. But if there be any thing given by way of Earnest before any Delivery, and the Buy­er repents of his Bargain, so that he desires to recede, he shall loose what he gave: And in case the Vender repents, hee shall make restitution double: Glan. ib. & Brac. ib. n. 2. But if the price be paid, or part of it, and Delivery followes, the Bargain and Sale shall be perfect. Not can either party recede under pretence of non-payment of the price in part, or in the whole: But the Vendor may have his Acti­on, and recover what is wanting of the price, but not the thing it self. Id. ib.

1. Now it is necessary that the thing sold be certain or reducible to certainty, and a certain price agreed upon: For there can be no Bargain without a price certain. Nor can demand be of a thing uncertain: but if it be agreed between the parties, that there shall be so much paid for the thing bought, as such a one shall value it at, unlesse that party will sell the price: Or in case he refuse, or be not able, there shall be no Bargain and Sale, as not having agreed upon any price. Brac. ib. n. 1. Flet. l. 2. c. 58. Dyer, fol. 91. n. 11.

2. And to the making up of a Bargain and Sale, it seems consistent with our Law, that the price for the thing bought be in mo­ney numbred, otherwise it is but a Contract in the nature of an Exchange: Fulb. par. c. Exch. 32. Perk. 244. Al­though if such things be exchanged as can­not conveniently be transferred without wri­ting. The word Exchange ought necessarily [Page 185] to be inserted, to make an Exchange: Fulb. ib. h Bro, Exch. 2. 12. And it may be the reason is, because the word Exchange implies a warranty. (h)

3. In a Bargain and Sale before and af­ter Delivery, he who hath the thing runs the hazard of it, unlesse it be otherwise a­greed from the beginning; because indeed he who hath not as yet delivered the thing to the Buyer is still reputed Master of it. For by Liveries & Uses the Owner-ship is trans­ferred: For Example, If an Oxe dye before it be delivered, or a House be consumed with Fire, or Land in part or whole be drowned and lost, it seems that all the ha­zard shall be upon the Vendor. On the contrary, if after Sale, and before Delivery any thing happen to be added to a Fe [...], the profit shall redound to the Vendor; For the Commodities ought to goe the same way with the Discommodities, and the profits ought to be his who runnes the hazard and danger. Brac. & Glan ib. But there needs no Livery where Lands are sold by Deed inrolled, N. Terms, Bargain. Dr. Stu. l. 1. c. 7., Lit. l. 1. c. 8. or alie­nated by Exchange.

4. Bargain and Sale may also be contra­cted among some, either Pure or Conditio­nally: As if the Buyer like a thing in a certaine time, it shall be his for so much money, otherwise that it should be resto­red. Brac. l. 2. c. 27. n. 2. Flet. l. 2. c. 58.

5. But if one buy a thing sacred of a Ven­dor in regard the Contract cannot stand, the Buyer shall recover as to his Interest against the Vendor, that he be not deceived, al­though the Buyer be obliged to know what [Page 186] and whose the thing is which hee buyeth, whether sacred or not, and whether bound or not. Iidem. ib.

6. But if a Vendor sell any thing for sound, and without maime, which afterwards proves maimed and unsound, and that it can be pro­ved by the Buyer to have been so at the time of the Contract made, the Vendor is obliged to take it again. But if it were sound and without maim at the sale, the Vendor is not responsible for what shall happen after­wards. Glan. l. 10. c. 14. Brac. l. 2. c. 27. n. 2. F. N. B. 94. & Dr. & Stu. l. 2. c. 42. Flet. l. 1. c. 58. Dyer, fol. 75. n. 23.

7. When any one sells a thing immovea­ble, as Land, and in the Sale promiseth it to be free, when as it is servile, or dis­ingaged, and not bound, whereas it is bound and in­gaged. The Contract is not broken by this, but the Buyer may have his Action against the Vendor for non-performance of promise, which is alike good, if hee assume to make good either for the quantity or quality, and afterwards the contrary be found. Fulb. par. Barg. 15.

8. The Vendor and his Heirs are bound to warrant to the Buyer and his Heirs the thing sold, whether it be moveable or im­moveable. Glan. ib. c. 15. Brac. ib. & l. 5. tr. 4. Dyer, 75. n. 23. Flet. l. 7. c. 38. & l. 6. c. 23. Though some are of opinon that they are not obliged to warranty by the Law, but in cases expressed by the Law. Fulb. ib. Coo. l. 3. Ferm­ors ca [...]e, 78. & l. 4. Nokes case, 80.

9. Things incorporeall cannot with us be sold or bought without writing. Dr. & Stu. l. 1. c. 8.

10. Meats which stink, and are putrified, and Commodities which are fallacious are prohibited to be exposed to sale; 13. H. 4. c. 1. 11. E. 4. c. 7. 1. R. 9. c. 1. with others. but these things belong to the publique Law.

11. The property of things alienated in [Page 187] Fairs, or publique Markets, are altered, un­lesse they be the Kings, or that the Contracts be by Covin and Collusion: so that in this case the Buyer is free from all feare of Evi­ction, Dr. & Stu. l. 1. c. 25. & l. 2. c. 47. & 49. provided there be such things observed in the buying of Horses as the Law requires. Brac. l. 2. c. 28. Cromp. Ju­ri [...]d. 221. Dyer, fol. 99. n. 66.

12. And lastly, as Actions cannot be gi­ven, so neither can they be sold, except it be to the King, or by the King. Plow. 79. Bro. chosein A­ction, 4.

Of Letting and Hiring.
TIT. XXV.

LEtting and Hiring is next to Bargaine and Sale, because as Bargain and Sale is contracted after the price is agreed upon, so Letting and Hiring is for a set Hire or Rent: Glan. l. 10. c. 19 Brac. l. 2. c. 28. For when a man lets his Estate to another for a certain Term and Rent, the Lessor is bound to give the thing leased for use, and the Lessee to pay his Rent. Brac. ib. Flet. l. 2. c. 59.

1. Rent doth chiefly consist in moneyes numbred, yet it may also be in Corne, and the like: 34. Eliz. c. 11. And sometimes the sole Re­ward or Hire is in Fealty. Lit. l. 1. c. 7. But when Land is leased for Land, this is an Ex­change. Id. ib.

2. Emphytensis, which the Romans tooke for either Bargain and Sale, or Letting and Hiring promiscuously, wee call Fee-farme, [Page 188] of which we have spoken enough before.

3. We also do let and hire Moveables, as Horses, Oxen, Sheep, F. N. B. 86 D. Bro. Leases, 23. and Immoveables, as Land: F. N. B. 146. K. Lit. l. 1. c. 8. So also things incorporeall, as right of Pasture, F. N. B. fo. 86. B. Entries, Agistment. Tiths, Terms, v. lease. but those not without writing, Bro. lease, 1. 5. 12. 17. & 21. 23. H. 6. c. 10. (unlesse any corporeall thing, as a Church, Churh-yard, Glebe, Parsonage houses, &c. be cheifly and parti­cularly let; for so under the name of the ap­purtinences, Tithes and Oblations passe like­wise.) Bro. lease, 15. 20. So also Services and Labours: Entries, Servant. Dr. & Stu. l. 2. c. 38. but not safely, as to the quantity, for that Errors are easily this way contracted.

4. He who hires Cloaths, Gold, or Silver, or other Ornaments, or Oxen, either giving or promising hire, such a care is required of him, as a diligent Master of a Family would have; which being had, if the thing by acci­dent happen to be lost, hee is not bound to make restitution, unlesse it be agreed other­wise. Nor is it sufficient that he have such a care of them as of his own goods. Brac. ib. Dr. & Stu. l. 1. c. 23. l. 2. 6. 4. Flet. l. 2. c. 59.

5. Letting of Lands and Immoveables is at this day the greatest occasion of suits of all others, wherefore it is requisite that wee should speak more largely in this place of these particulars. Every one may make a lease of Lands, who holds them in Fee, whe­ther he have Fee-simple, or Fee-taile, and whether he be possessed in his own Right, in the Right of his Wise, or of a Church, 32. H. 8. c. 28. which is also true in those who hold as Part­ners: Lit. l. 3. c. 3 So also Cestuy qui use, Id. ib. c. 5. a body po­litick may make a lease, but not without wri­ting. Bro. lease, 32. 42. As also he who hath a Free-hold, Id. ib. 4. [Page 189] or a Lease, provided he exceed not his term, and Guardians until their Pupils and Wards come to age.

6. He that hath a Fee-simple in his owne Right, may make a lease for as many years as he pleaseth, provided it be not to a Body po­litick, lest by exceeding it seem a Demise in Mortmaine. Bro. ib. 47. He who hath a Fee-tail in his owne, or Fee-simple in anothers Right, viz. either in the right of a Church, or of his Wife, is tied a little more strictly, for that they cannot lease Land by a new lease which is already let for above the term of a yeare. Nor any which were not usually wont to be let within the space of 20. yeares past, nor those for a lesse rent then they formerly were let for, or for a longer terme then 21. years, or three lives, and that without permission of waste. To these also may be added, that he who hath a Fee in right of his Wife may let it joyntly with his Wife, but hath no power to alienate the Rent, but it shall come to the right Heir of his wife after her decease. 32. H. 8. c. 28.

7. Arch-bishops & Bishops cannot let the Lands of their Churches for above 21. years, or 3. lives, to be accompted from the begin­ning of the lease, nor for lesse Rent then it formerly went for, nor for lesse then formerly it used to be let for. 1 Eliz. not printed, Dyer, fo. 145. n. 65.

8. Masters and Fellowes of Colledges, Deans and Chapters, Wardens of Hospitalls, and all Ecclesiasticall persons are prohibted 13. Eliz. c. 10. to let their Church, or Colledge Lands for more then 3. lives, or 21. years, to be ac­compted from the beginning of the lease, [Page 190] [nor this without their private Statutes per­mit.] Nor so, unlesse the lease which is on foot [if there be any] be within three yeares of expiring. 18. Eliz. c. 11.

Besides, the Colledges of both Universi­ties, as of Eaton and Winchester, are obliged to take the third part of their Rent in Corn: 14. Eliz. c. 11. Yet are they not prohibited from letting freely those Houses which they have in any City, Burrough, Towne corporate, or pub­lique Market Town, with the Lands belong­ing to them (provided they exceed not ten Acres) according to the Common Law of England, if it be not contrary to the private Statutes of their Colledges. Id. ib.

9. It is not without reason questioned, whether a Prebendary of a Cathedrall Church may lawfully let part of his Preben­dary, procuring the said Lease to be confir­med by the Dean and Chapter, without any consent of the Bishop, the Bishop being both Patron and Ordinary of every Preben­dary: but continuall and daily Custome hath rendred his consent unnecessary and uselesse. Dy [...]r, fol. 61. n. 30.

10. Those who have Benefices, cannot make a Lease for any time longer then they reside there (the liberty of being absent 80. dayes every yeare, being alwayes permitted them) unlesse by the Lawes they are permit­ted to have two; In which case in regard hee cannot possible continually reside at both, he may let one to his Curate. 13. Eliz. c. 20.

11. Lands and Tenements are often let for the life of the Lessee, Lit. l. 1. c. 6. or anothers life, [Page 191] Id. ib. or for more lives, Id. ib. or for terme of years, Id. ib. or lastly for a life: and afterwards [that being expired] for a term of years, Bro. leas. 51. and that either by writing, or without, Littl. ib. nor by Indenture only but by Deed-Pol. F, N, B: 148:

12. But if any one letteth his Lands by writing or without, not mentioning any tearm but giving the Lessee possession, He is presumed to let them for the life of the Lessee. Lit. l. 2: c. l, Plow. 152.

13. There is no need of giving possession to a Lessee for years, for he may enter by vertue of his Lease (unlesse besides the Lease there be a Grant of a Remainder to another for life, or in fee in the same Deed Lit. l. 1: c. 7. for if a man makes a Lease of lands for years, though he were Lessee before, yet he doth rightly take possession of the said Lands by this means. Id: ib:

14. Lessor is bound to warranty to the Les­see; for the Lessee being ejected before the terme ended may have his Action of Cove­nant against the Lessor, F: N: B: fo: 145: M: Dier 328: n: 8: and that whether he be disseised by the Lessor himself or by a more ancient Title, nor only he, but his As­signee. Id. ib:

15. But if a third person eject him against Right, he shall recover damages against the Ejector Id: ib: unlesse the Lessor agreed by In­denture, that in case the Lessee were ejected he should have his action of Covenant a­gainst him. Id: id:

16. Lessee for life by Indenture, in regard he hath a Free-hold, shall not have an action of Covenant against the Lessor, in case he e­ject [Page 192] him before his tearm ended, but an As­sise. Id. ib.

17. Where a Lease is but for a year, and so from year to year, the Lessor cannot eject the Lessee at the end of the Tearm, nor can the Lessee go out against the will of the Lessor, For whosoever of them would recede from the agreement, ought to give the other war­ning, Bro. lease 13. 22.

18. Lessor cannot remove his Tenant at Will, so as to hinder him from taking the profits of his Seed or Corn sowen, or with­out granting him convenient time to re­move his Houshold stuff, because the time is well enough force-seen and known to him. Lit. ib.

19. All persons may regularly take formes, except spirituall, who are prohibited, unlesse it be for the maintenance of their Families. 21. H. 8. c. 13.

20. Lessee is obliged to pay his Rent to the Lessor, which if he shall faile to do; the Les­sor during the Terme may distrain, and this seems true, whether it be agreed so or not: For whatsoever is brought by the Lessee into the Tenement is annexed as a pledge for the Rent, Dr. Stu. l. 2. c, 9. Lit. ib. Brac l. 2. c. 28. n. 1. but after the tearm he cannot, Lit. l. 1. c. 5. Flet. l. 2. c. 59. the payment of Rent admits no satisfaction, for the Lessee is not freed by paying before the day. Coo. Bevills case, fo. 10. a

If Tenant of a Fee-farm doth not occupy the Land leased for the space of two years, by reason whereof there can be no distresse, the Lessor upon his Action may recover it into his own hands. 6 E. 1. c. 4. Westm. 2. c. 21. F: N: B: fo: 209: G:

[Page 193] 22. But in most Leases whether for years, [...] life, it is covenanted, that in case the [...]ent be behinde at a certain day yearly, [...] half yearly, unpaid, that the Lessor may [...]ter & reastume the possession to himself, or [...]at the Lease shall forthwith become void [...]d expire. In the first case, if the Rent at [...]e day assigned be not paied; being lawful­ [...] demanded, upon the ground, by the Les­ [...]r, not only he in his life time but after his [...]eath (unlesse he distrained in his life time [...] the Rent, or received it upon tender Coo. l. 3. Pen­nants case. [...] Heir may enter; otherwise not, Dr. Stu, l. 1. c. 20. Dier fo. 51. n. 17. for [...]ent ought to be demanded, Perk. 836. nor in this [...]se doth the day demand for the man, but [...] the condition be that the Rent shall be [...]id in any extrinsecall place, there needs [...] demand, according to the opinion of [...]me, Dier l. 8. n. 23. 24. though others more modern affirm [...]e contrary. Coo. l. 4. Bur­roughes case fo. 73

23. If Husband and Wife hire land at too [...]ere a Rent, the Husband dying before the [...]earm, the Wife may leave it, and if the Hus­ [...]and survive the wife and dye, his Execu­ [...]rs have the same liberty. If the Testotors Goods are not sufficient to satisfy the other Creditors (the Rent being computed for [...] tearm of years. Dr. Stu. l. 2. c. 33. Dier fo. 146. n. 70.

24. If a man make a Lease for a year, upon Condition that the Rent shall be paid at Michaellmas, and in the mean time give a generall release to the Lessee of all Actions [...]nd Demands: this doth not remit the rent Lit. l, 3. c, 8. although it seems something strange.

25. A Lessee is not only bound to the pay­ment [Page 194] of Rent, Dier. fo: 4, n: 1. but also to use well the thing leased: Id. fo. 324. n, 34, so that if either he, or a third person commits Waste, he is liable unto the Lessor according to the penalty of the Sta­tute, 6 E: 1, c, 5, Dier, fo, 90, n, 9, and 10, and fo, 108, n, 31, and fo: 198, n: 43. and is left to take his remedy a­gainst the third person, Dr. Stu, l, 7, c, 31, and l, 2, c, 4, unlesse he be a [...] Infant; Id, l, 1, c, 17, but it is not waste, to fell timber for necessary reapa [...]tions. Id, ib,

26. In sel [...]ing and hiring, the Law is the same as to the mutual obligation of persons, as in Covenants. And therefore if the Lessee undertakes for himself to do, or not do any­thing, his Executors or Assignes not being named, himself is only bound, and they free from any manner of Obligation; Dier, fo, 65, n, 8, but this is sometimes disputable: A Lessee covenants with his Lessor, that if either he, his Exe­cutors, or Assignes, alienate the Lands lea­sed to another, that then it shall be lawfull for the Lessor or his Heires to re-enter, and to eject the Lessee, his Executors or Assigns; and not long after the Lessee falls sick, and by his last will constitutes his wife his Execu­trix, and dies; the wife marryes a second hus­band who alienates her right, and tearm in the said Lands; and it was much questioned, whether in this case the Lessor may enter in regard this second Husband was neither Exe­cutor nor Assignee of the first. But in the end it was determined for the Lessor, because the second Husband was in this case adjudged Assignee in Law though not in fact. Dier, fo. 6, n, 5,

27. If a Lessee oblige himself to leave hou­ses in repaire at the end of his tearm, the Les­sor cannot bring his action of Covenant un­till [Page 195] the Term be ended, although the Lessee should pull the houses down, yet he may bring an Action of waste. F. n. b. fo. 145. K.

28. Lessee is not obliged against a greater force, or against tempests, or Incursions of e­nemies, unlesse he do expresly oblige himself to it. Dr. & St [...]. l. 2. c. 4. Dier fo. 33. n. 10, 11. fo. 36. n 35. fo. 56. n. 14. 12 H. 8. fo. 1. b. v. Lit. l. 1. c. 8.

29. Tenant at will is not bound to repara­rations as Tenant for years; (u) but if he commits waste, he is liable to an Action of Trespasse. id. ib. Dier fo. 90 n. 9, 10.

Of Partners or Fellowship
TIT. XXVI.

OUr judicious Lawyers are very fre­quent in disputing the Rights of those partners or fellows, who hold Lands or o­ther things pro indiviso; and these they call either Partners, Joint-tenants, or Tenants in Common. Little. l. 3. c. 2, 3, 4.

1. Partners are either by the Law, or by Cu­stom by law, Termes. v. Parceners & Little. ib. & two or more women of the same degree, who for defect of Heires Males succeed by equall Right in the inheritance of their Ancestors, or else the sons of two women to whom Lands not formerly divided by their mothers, descend Little. l. 3. c. 1. and 2. by Custome, are those who from the Custome of divers Pro­vinces which we call Gavell kind do equal­ly succeed their Ancestors, whether they be [Page 196] brothers, (or for default of them) sisters, N [...]i­ces or Aunts.

2. Joint-tenant are either called so proper­ly, or improperly, Instit. Jur. Com. c. 15. Dier fo. 67. n. 18. & fo. 160. n. 43. properly are those who hold a Fee, or Freehold or any reall▪ Chartell by force of the same Title, pro indi­viso, improperly are those which possesse any personall Chattell so, and those are thus ioyned, either by their own will solely; as purchasing the Premises with their own m [...] ­nies, and so possessing them pro, indiviso, or else by the will and bounty of others, as where one gives any thing to two or more iointly, (Lit. l. 3. c. 4. unlesse the Donees be a Body Politick, and receive under that notion, or at least one of them, in which case they are tenants in Com­mon. Id. ibid.

3. Partners and joint-tenants differ two wayes, the former being joyned by necessity, and are called Partners meerly in respect of their inheritance: Joint-tenants have their name either from purchase or Gift, and are joyned together by their own Wills, and not by necessity. See the for­mer quotations

4. Thereare also some, who are Joint-tenants only for life, and yet have severall inheritan­ces: as where Lands are given to two men, or two women, and to the Heirs of their bodies, in this Cafe so long as they live, they are called Joint-tenants, for one of them having Issue, and dying, his fellow shall have the whole during his life, who also if he shall leave Issue and die, his Heir with the Heir of him that died before, shall hold the said Lands in common, I [...]st. c. 15. and if one [Page 197] of the Donees die without Heire, his part for defect of an Heire, shall after the death of his fellow revert to the Donor. Littl. l. 3. c. 3.

5. Tenants in common are they who hold the same thing, as Lands or Tenements, Chattells personall or reall, jointly, but by severall Titles, Id. ibid. c. 4. for if one parcener alie­nate or give his Right to a stranger, the stranger and the rest are Tenants in Com­mon, though the rest amongst themselves en­ioy their former appellation.

6. Wherefore Tenants in Common differ from partners in this, that these do not possesse any thing in Common by Right of inheri­tance, as do the others: nor are they ioyned by any necessity, and from Joint-tenant, in that they hold a thing in Common by divers Ti­tles, or at least the Tenants are naturally so unequall, that they cannot admit of any con­iunction, such are bodies politick among themselves, or with single persons. Id. ibid.

7. First for partners, these though they die before Partition, transmit and leave their part to their children if they have any, o­therwise to the rest of their fellows. Id. ibid. c. 2. Inst. c. 14.

8. Partition may be made, either by mu­tuall consent, Dier fo. 179. or (if some refuse) by the power of the Judge, for he who desireth to have his part divided, may have a Writ of Partition, by which he shall compell the rest to divide, F. n. b. 61. K. & 259. C. 260. B 261. C. but if one woman Partner en­termarry, and having Issue dieth, the Hus­band being Tenant by the courtesie, may compell them to a Partition, if it be not al­ready made. Littl. l. 3. c. 2.

[Page 198] 9. Littleton doth very fully describe the manner of making Partition, both by con­sent and compulsion, but this is rather mat­ter of fact then of Law; that onely is obser­vable, that if Partition be made by consent, one or more of the Partners being under age, it may afterwards be corrected whe [...] they come to full age, provided they do not confirm it when they come of age by receiving the profits: Id ib. and if it be a Fee-Tail, al­though all be at age at the time of the Par­tition made, yet their Heirs may disagree to [...] ▪ id ib. so also, if an unequall Partition be made by the Husband of co-Heirs after Marrimony, is dissolved, either of them may disagree. Id. ib. F. n. b. 62 E.

10. If after Partition, any part of either o [...] the Partners Estate lye evicted by Law, He or she whose part it was, may compell the rest to a new Partition, and recover a lawfull part in those Lands which the rest hold. Little. ib. c. 2.

11. If there be an Advowson in the in­heritance, and the Partners will not consent in the Presentation of a Clerk, then the eldest shall present in the first vacancy, and the rest according to their Case: and to this they may be compelled, if they refuse to a­gree, and every one hath therr lawfull reme­dy, if they be hindred from presenting in their turn. F. n. b. 34: T: and 36: C.

12. If there be two Joint-tenants of a Fee simple withi a Burrough, where Lands and Tenemenrs are divisible by Will, and one of them devises his Right to a stranger, and dies, this Devise is void, and the reason is, because that part which by the Law at his [Page 199] death comes unto the other by the Right of [...]crease, and out of Descent cannot any way [...] conveighed to another by a Will (which [...]es not its Operation till the Death [...] the Testator) from him that claims the [...]ole. Littl: l: 3: c: 3:

13. Two take a Lease joyntly for years [...]th this condition agreed to between the [...]ssor and them, that if the Lessees die be­ [...]e the Terme ended, the Lease shall be [...]id. The Lessees make Division: and one [...] them alienateth his part, and dies, the [...] Lessor cannot reassume the part of him [...]at died, but the Alience shall hold it du­ [...]ing the life of him that surviveth: nor hath [...]ccupation in this Case any force; but it two [...]ke a Lease for theit lives, and make par­ [...]tion, either of them dying, his part imme­ [...]iately reverts to the Lessor. Dier fo: 67. c: 18:

14. Two are Joint-tenants for life, one of which lets out his part by Indenture to a third person for years, reserving a Rent from it to him and his Heirs, and dies, the question is, whether by his death the ritle did wholly vanish, or whether the surviving Joint­tenant ought to hold the whole for his life; & if he ought, then whether he were left to his own libertty, notwitstanding the Lease of his fellow, or to take onely the Rent reser­ved upon that moity, and it was adiudged by the Justices, that the surviver ought to hold the whole Lands for life, and that free and dis­obliged from the others Lease. Id: fo: 178 n: 5:

15. And this is the difference between Joint­tenants in Fee, and, Partners, that neither [Page 200] of the Donees can charge his Lands whi [...] he holds, pro Indiviso, with any Rent long [...] then for life, but a Partner may, and the r [...] ­son is, it cannot preiudice his fellow or [...] Heir, who derives his Right not from hi [...] but from the Donor, but Partners succeedin [...] one the other for defect of Heires, may fro [...] one anotherr derive their Right. Littl. ib. c. 3.

16. Which notwitstanding in letting [...] clearly otherwise, for if one of the Donee [...] who holds, pro Indiviso, to him and his Hei [...] let out his Right for a compleat Term, [...] dies, the Lessee after his death may retain [...] during the Term, nay he may enter into t [...] Lands, although they were not delivered unto him in the Lessors life time, or an [...] wayes possessed by him, Id. ib. and the reason [...] diversity between a Rent Charge, and a Lease is iudiciously given by Littleton, Id. ib. which [...] leave to be considered by the studious.

17. If there be two Joint-tenants of a Sil­va c [...]dna, and either of them, the Wood being sold, retain the whole money to him­self, his fellow can have no Action against him, (d) nor could Joint-tenants or Te­nants Dr. Stu. l. 1. c. 14. in Common formerly be forced to make Partition, Little. ib. unlesse it were by the Custome of the place, F. n. b. 62. C. but this is other­wise at present, 31 H. 8. c. 1 32 H. 8. c. 32. and yet Joint-tenant, or Tenant in Common being eiected by their fellow, may have an Action of forcible En­try against him.

18. Tenants in Common, for that they are in by divers Titles, if they be eiected by a stranger, must bring their Actions severally, [Page 201] which in Joint-tenants is otherwise, Little. ib. yet Tenant in Common may sue iointly for a thing which cannot be divided. Bro. Te­nants in com. 2. 5. and. 25.

19. This is the difference between those who hold chattells reall, and those who hold chattells personall in common, that they being eiected by their fellow, may have an Eiectione firme, or an Eiectione custodiae ter­rarum, as their case requires, but the other cannot, but are left to take them themselves, when opportunity happens. Little. ib.

20. Tenants in common of chattells, reall or personall may leave their part to their Ex­ecutors. F. n. b. 118 H.

21. If two possesse Goods in common, and one of them deliver them to a third person, he onely may have his Action of account a­gainst the detainer, and not his fellow, Id. ib.

22. this is equally true amongst partners, Ioint-tenants, and Tenants in common, that they must bear an equall burden for that which they possesse in common, for if one or more refuse to contribute, the rest may bring their Actions against the refusers. Id. 162 & 127.

23. Lastly, there is another kind of Te­nure in Common with us, which comes either by reason of agreement, Common in Grosse. or of Tene­ments amongst those of the same Fee, Common ap­pendant, or ap­purtinent. or sometimes of divers, Common by reason of vici­nage. Dier fo. 47. n. 12, 13. for in many Man­nors, the Lord hath spacious and large grounds, in which every Tenant according to the rate of his Tenement, hath a Right of pasture, or of digging Turf. But in regard these kind of grounds for the conveniency of the Common-wealth, cannot admit of [Page 202] Partition, Every one who hath such a Right in them may, (if through covetousnesse they put in too great a number of Cattel) be recal­led to iust and equall bounds. F. n. b. f. 125

Of Commandements and At­tornments.
TIT. XXVII.

A Command may with us, as with the Civil Law be contracted six manner of wayes, viz. by the sole cause of the Commander, F. n. b. 121. or of the Commander, and the party com­manded, or of a third person, or of the Com­mander, and a third person, or of him that is commanded, & a third person, or lastly of the commander or master, the party commanded or servant, and a third person Examples might be easily given, but mens endeavors are not alwayes accepted, and therefore this com­mand is not much in use with us, wherefore these are to be implied from the Examples of letting, and other Contracts. Glan l. 11. Brit. c. 28. New Book of Ent. Account, Attorn Commandment, Terms of the law, v. Account Dr. Stu. l. 2. c. 24. Flet. l. 2. c, 71, 72.

1. The Servant cannot have his Action a­gainst his Master for commanding him any thing uniust, Brit. c. 28. Flet. l. 6. c. 27. but a third person may if the command bring him any prciudice, Brac. l. 4. tr. 1. c. 10. 26, 27. for that the Law supposeth the Act of the Servant to be the Act of the Master. Plow. 289, 290.

2. There is nothing hinders with us, but that a command may be deferred untill a [Page 203] lay, or be done upon condition, and is extinguished either by the death of the Ma­ster or Servant. Flet. l. 3. c. 15.

3. The ends of a Command are diligent­ [...]y to be looked after, and observed, and [...]pt. Perk. 118. Fulb. pural. c. Contracts, fol. 3. Plow. fo. 14.

Of Obligations which arise from implyed Contracts.
TIT. XXVIII.

OBligations by our Law arise from im­plyed Contracts many wayes: As for transacting businesse Tutelary, dividing of Common. But as for the transacting of bu­sinesse, and the like: Dr. Stu. l. 2. c. 51. Brac. l. 3. tr. [...]. c. 2. n. 10. Flet. l. 2. c 60. that which is done by the command, or for the sake of one that is absent [if Lawyers have informed mee a­right,] is rather left to the conscience and integrity of him whose businesse it is, then to an Action to be satisfied. Nay (which is more to be admired) it oft happens, that for do­ing well a man may incurre the guilt of a Trespasse: As if hee drive his Neighbours Cattell out of anothers Corne, or carry Tithes exposed to Cattell into the Parsons Barne. Dyer, fo. 36. n. 38, 39.

1. Gardians may lue the debtors of their Pupils: And the Guardianship being ended, as they are lyable to render accompts, so may they claim the Expences which they were [Page 204] at, by reason of their Office, of their Pu­pils. F. N. B. fol. 118. B. Terms, v. Gardain in socage, Flet. l. 3. c. 15.

2. A Donee also who sues a Donee for the partition of a thing given joyntly to both; and a Partner who brings a Writ of partition against his fellows, may be referred hither. Flet. l. 2. c. 60.

3. Furthermore, Executors may sue the Debtors of their Testators, and may be su­ed by the Creditors and Legatees, Id. fo. 119. M. 121. O. 145 D. H. which is true also in the Administrators of those who dye intestate: Id. fo. 120. D. And in these succes­sions also, whole Predecessors owed money, or had moneys owing to them in the name of their Abbies: Id. fo. 121. K. & 122. E. And in the Husband, whose Wife was indebted before Marriage, or had money owing unto her. Id. 121. C.

4. A Keeper of a Prison, who [...]ets a Pri­soner for Debt at liberty, renders himselfe bound to the Creditor for the said money. Id. 121. A. P. 131. B. V. Dyer, 175. n. 46 47. & fol. 278. n. 5.

5. An Heir is bound also by the Obliga­tion of his Ancestor, if hee be named in it, and receives sufficient from him to satisfie, F. N. B. 120. l. which however I suppose to be true only where the Moveables will not satisfie debts, or where the Executors are not mentioned. An Heir also is bound to warrant Lands ali­enated by his Ancestor, with Charter of warranty, if hee be named in the Char­ter. Id. 134. D.

6. If one lets Lands for a certaine Rent, and deviseth the reversion of them to ano­ther by Will, the Legatee may claime the Rent of the Lessee. Id. 121. N.

7. The Kings Customer having the Kings [Page 205] money in his hands, is Debtor to him to whom the King by his Charter hath gran­ted an annuity to be received yearely from such a Customer. Id. ib. F.

8. Lastly, we are obliged by the Con­tracts of our Wives, Children, and Servants, for Wares taken in our names, and conver­ted to our uses, as if we had made the Con­tracts our selves. Dr. Stu. l. 2. c. 42. Fulb. par. c. contr. fol. 3, 4. Plow. fol. 11. Dyer, 234. n. 17.

By what Persons an Obligation is acquired unto us.
TIT. XXIX.

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

By what meanes an Obligation is taken off.
TIT. XXX.

AN Obligation is taken off by Payment, because every Obligation is removed, when that which was due is paid, whether he payes it who owes it, or another for him: And that whether the Debtor know it or not, or whether he be willing or not, Brac. ib. [...]. 1. Flet. ib. which is only true, according to some, where the wri­ting [if there were any] be cancelled, or an Acquittance be to be shown by the debtor. Dr. Stu. l. 1. t. 12. To the explanation of which assertion, some put a difference between a simple and Con­ditionall Obligation, and affirme, that the payment of a conditionall Obligation may be proved by Witnesses, although the wri­ting remain intire, and no Acquittance be shewen: And that because the Party being bound to a certaine time under a penalty, he cannot without danger expect the delive­ry of the Writing or Acquittance, seeing he is more strictly bound, then if the Obli­gation were simple: So if the party pay, his Surety is free: And so on the contrary. Brac. ib.

1. An Obligation is taken off also by Re­leases, which is an imaginary payment: As if it be said; have you received all that I owe you upon any cause whatsoever? And it [Page 207] be answered, or (if the Debt be in writing) written, I have acknowledged to have received all. Perk. 749, 750. Dyer, 222 n. 22. And this may be done for part of a Debt, as well as for the whole: As also all o­ther things whatsoever are reduced into a Covenant, may be taken off thus, and in the same way which Obligations are. They may also be renewed, and reduced into another Obligation, or more into one, as if a cer­tain summe of money be promised for many Debts, Causes, and Obligations. Brac. ib. n. 13. Lit. l. 3. c. 8. There is also a Release in Law, as where a man makes his Debtor his Executor; for in this case hee for gives the Debt, Bro. Testam. 118. which is so farre true, that it is whether he take upon him the Execution of the office, or not. Plow. 184.

2. Also if Lands be charged with an An­nuity, and the Debtor neglect payment for some yeares, and afterwards upon the pay­ment of one yeares Rent obtain an Acquit­tance from the Creditor, the action for the residue is utterly extinguished. Dyer, f. 271. n. 26.

3. So also by renewing of Altering, as where an Obligation is transferred from one person to another, who cannot be bound, it is wholly lost: As from the person of one who is of age to another who is an Infant: And in renewing or altering, there may in­tervene a surety and a penalty, as also a Condition: That if the Surety doe not well and truely pay, the Princiall shall re­main. Brac. l. 3. t [...]. 1. c. 2. n. 13.

4. In briefe, it is to be observed, that an Obligation may be dissolved the same way, and by the same means by which it is contra­cted, [Page 208] if it arise from a Contract, or any such like thing, namely by the thing, as if the thing be restored, by words, as if it be to the contrary, and in contrary words. Dyer, fo. 75: n. 25, 26, &c. By writing; As if I write my self to owe money, and the Debtor write that he hath received: By consent, as if they agree mutually to re­cede from the Contract: By delivery, as in case the thing be re-delivered: By joyning, as in case it be done on the contrary. Brac. ib.

5. Bracton also declares that an Obligation may be taken away by sundry exceptions, and that many wayes, whom any one that pleaseth may read. Id. ib.

6. There is also another way with us, which we call waging of Law; for if any one challengeth money of me upon a simple con­tract, I may wage my Law against him, Id. l. 5. tr. 5. c. 13. n. 3. i. c. I may promise to come into the Court at a day judicially assigned, and performe the Law. Now to perform the Law, is in this case; To doe that which the Law requires, namely to make Oath, that neither the sum required, nor any part of it is due: And to bring others with me who shall affirme upon Oath likewise, that they beleive the Oath I have taken to be true. Brit. c. 28. F. N. B. 122. l. Now this is no­thing else but a Judiciall transaction which our Lawes permit us.

The End of the Third Booke.

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

Of Obligations arising from Crimes.
TIT. 1.

THERE are Obligations al­so which arise from Crimes, or from things of the same nature. Now Crimes and Trespasses proceeding from words and facts, are to be distinguished according to the intention and will where with they are committed; for the will and the intention are the Interpreters of the facts: And from these Delinquencies proceed greater crimes, as Treason, Ho­micide, Theft, Rapine, &c. Brac. l. 3. tr. 1. c. 2. n. 14. (of which wee shall discourse hereafter.) Or lesser [Page 210] crimes, as Injuries and Trespasses; for under these all our Writers comprehend Obligati­ons arising from private crimes.

1. The Civill Law punisheth manifest Theft by adjudging restitution to be made four-fold, and Theft lesse manifest by ren­dring two fold. But the Lawes of England punish neither with lesse then death, provi­ded the thing stollen be to the value of 12. pence. Fortes [...]ue, c. 46. Bro. Crown. 2.

2. Theft is divided into Larceny and Robbe [...]y: Larceny is defined: The taking a­way of Chat [...]els personall in the absence of the Owner, and is either Crand or Petite according to the thing taken. Grand, is when the Moveable that is stollen exceeds the value of twelve pence. Petite is, when it is under the value. Westm. l. 2. tit. Indictments s. 58. Spec. Ju­stic. l. 1. c. larc. Robbery is, when it is taken from the person, or in the pre­sence of the Owner. West. ib. s. 60.

3. Every Theft with us is a publick crime; for Petite Larceny, though it be not pu­nishable with death, but with imprisonment, and stripes, is according to some, accounted Felony, Bro. Coron, though others are of contrary Judgement, Stam. pl. coron. l. 1. c. 15. Wherefore we shall referre this [...]ather to the Order of publique Judge­ments.

4. Yet wee have thought fit to observe here, That it is in his choise who loseth any thing by Theft, whether he will prosecute the party civilly or criminally. For dissem­bling the Theft, he may suppose the Theife to have found the thing by accident, and so detaine it to himselfe, and so recover the [Page 211] thing it selfe, or its value. Trover. in Book of Entr. Brac. l. 5. tr. 5. c. 31. n. 2. Flet. l. 1. c. 38. Dyer, fol. 50. n. 5. But of cri­minall prosecutions wee shall speake here­after.

Of things taken by force.
TIT. II.

THe word Trespasse hath a very large la­titude, and comprehends every violati­on of the Law. But our discreet Lawyers call only private crimes Trespasses, and make distinctions even amongst these; for those who are accompanyed with force, are Tres­passes more properly: F. N. B. 85. G. Fle. l. 4. c. 4. Yet they call o­thers Trespasses likewise from the species of an unlawfull act, though not violent, but accidentall; or (to use their own words) su­ [...] casu, F. N. B. fo. 92. E. Terms, v. Action, sur le case. whence the forme of Action in the first case hath alwayes these words, [vi & armis] and in the second [contra pa­ [...].] But the Plaintiffe may if hee please, dissemble the force, as where he brings his Action in the Sheriffs Court, who hath no Cognisance, de vi & armis: And though he feigne a lesser Trespasse, when really it was greater, yet he shall recover damages: and this seems the reason why our Writers do so often confound, and treat promiscuously of these trespasses which are of a different na­ture. N. boo. En­tries, tresp. 85. Trespas, sur le case. 92. Now we have thought it congru­ous [Page 212] enough to refer violent Trespasse to the title of things taken by force, and the other to the two following Titles. For since the Roman Law makes the subject of these Tres­passes, which our Law of England divides on­ly into two heads if threefold; lest it not seem strange, that I refer some Cases, which beside the force, affixe a contumely also up­on the person injured, to a third Title.

1. Now the Action for Goods taken by force, or de vi & a [...]m [...]s, lies as well for things taken by force which are inanimate as Cats, Ploughs, &c. As things animate, as Oxen, Sheep, and those not only tame, but wilde also, if they be in our Custody and Jurisdi­ction. As Conies which are in our Warren, F. N. B. 89. K. and Pigeons in our Columbaries: Id. 86 A. So also for our Servants, Id. 88. D. I. and for Apprenti­ces, Id. 91. I. for Wives drawn away with their Husbands Goods, Id. 89. O. for the stealing away of a Sonne or a Daughter, who is an Heire, and marrying them with any one without our consent, Id. 90. H. for quantity, as many, Id. 87. M. for goods of Felons taken out of our Liberty, Id. 91. F. for Weifs and Strays driven or carryed out of our Fees. Id. 91. B. new [...]oo. Entr. Trespass, Bro. Tresp. Fulb. Wrongs.

2. And this Action is given for the repair­ing the losse lustained; & that not only against the party that did it, but against those that commanded the doing of it, as in every Tres­passe upon the case: Dr. Stu. l. 1. c. 9. But not against the Executor of the Trespassor Id. l. 2. c. 10. nor his Heirs, Brac. l. 3. tr. 1. c. 4. n. 4. because it is personall and penall.

Of the Aquilian Law.
TIT. III.

TRespasse upon the case, is that which ei­ther brings damage to the person inju­red, or disgrace and contumely with the damage, and this the Civilians comprehend under the Title of the Aquilian Law, be cause Cains Aquilius was the Author, being Tri­bune of the People; of this popular Law, by which these trespasses were punished; though they referr this to the Title of inju­ries.

1. Now he who damnifies the Estate of condition of another, commits a Trespasse upon the case: As for example; where a Sheriff by a Writ directed to him, takes a Debtor and afterwards lets him escape, F. n. b. fo. 93. A. C. or upon his return makes false Information to the Court, that the party hath no Lands or any thing else in his Bailiwick, whereby he may be distrained, and so becomes the occa­sion of the taking of his Body, Id. ib, B. so also; he who fixeth stakes in any water, whereby anothers Ship or Vessell laden with Corne, or other Merchandise is overturned, Id. 92: F moreover an Atturney or Counsellor at Law, who through ignorance or deceit Iooseth his Clients cause, Bo: Entr. Action Sur le case in Attur­ney: a Barber who shaves ano­thers Beard ill, or with a foule Raisor, Id: in Barber: [Page 214] a Physition or Chirurgeon, who either igno­rantly or maliciously handles a sick or woun­ded person, Id. in. Phisi. a Goaler who useth a Priso­ner more hardly then he ought, F. N. B. 93. he who distraines the Cattell of anothers Plough, where he may make other reasonable distress, Dier. fo. 312. n. 86. or he who having justly taken anothers Cattell by distresse doth not carry them to an open Pound, but to a place unknown, the Rectory of a Church, a Fortresse, or into ano­ther County that they cannot be redeemed or replevin'd by their Owners, F. N. B. in the Writ of Re­pleg. aver [...]: fo: 68. and the Writ Vetito nannio 73. he who interverts the Course of a River which should drive a Mill, Dier 248. n. 80. and fo. 320. n. 38. a Lessee or free-hol­der who commits waste. Id. fo. 36. n. 38. and fo. 256. n. 10. But this is speciall in regard that by an Act of Parliament, he forfeits the thing wasted, 6 E. 1. c. 5. but in regard the Species which might be referred hither are infinite, I shall rather remit you to those who are more large, as treating expresly upon this subiect, then trouble you with too great a glut and multitude of examples. Boo. Entr. 10. Action Sur le case, and Trespasse, Bro. Tresp. F. N. B. fo. 85. and 92. Fulb. fo. 69. Plow. second part 12. 13. Dier fo. 36. n. 38. f. 208. n. 14. fo. 285. n. 40.

2 He also is liable to this action who dam­nifies or hurts another by accident, though it be not through any fault and dece [...]t. Bract. l. 3. tr. 1. c. 36. Flet. l. 4. c. 17.

Of Trespasses and Injuries
TIT. IV.

WEE have declared how that under this generall notion of trespass we comprehend every breach of the Law, but we shall treat here especially, of that which redounds to the disparagement and contu­mely of the person iniured, as when one strikes, beates, wounds, or maines another, Bract. l. 3. c. 19. [...]. 1. Flet. l. 2. c. 1. or where without any force he asperceth the credit and reputation of another by ap­probrious words, Id. ib. tr. 2. c. 24. n. 3. Flet. l. 4. c. 40, 41. Dier, fo. 105. n. 15. or by dispersing libells or falsly imprisoning him, Dier fo. 72. n. 6. fo. 75. n. 21. fo. 118 n. 77. fo. 236. n. 26. or ill intreating him in any such like sort. Bract. l. 3. c, 19.

1. They seem also to be guilty of this tres­passe, who plot and imagine uniustly against the lives or fortunes of others, whom our Lawyers call Conspirators. Dier fo. 85. n. 87. fo. 244. n. 61. F. N. B 114 G. 115. A. L. 116. M. N.

2. Nor are we only capable of being iniu­red in our selves, but also in the persons of those who are under our power, as of wives, Bro. Tresp. 43. Fulb. 79. Children, Id. 90. and Servants, Id. 80. and Bo. Enter. Trespasse in Servant, and Villaines. Bro. Villenage 24. Trespass 53. Villenage 24.

3. A Trespasse may be either greater or les­ser according to the circumstances, now the circumstances we account seven, viz. the cause which moves the Actor, the Person as well of him that commits, as of him who suf­ers the iniury, the Place, Time, Quality, [Page 216] Quantity, and event. And these are mate­riall, either as to the aggravating or dimi­nishing the punishment. Brac: l: 3: tr: 1: c: 6: Flet: l: 1: c: 16: and: l: 2: c: 1:

4. We call a contumely, or slanderous and iniurious words spoken against any nob [...] man, Scandalum magnatum, which deserves [...] greater punishment then any other; in re­gard of the Honour and Dignity of the per­son iniured, 3: E: 1: c: 33: 1: R: 2: c: 5: and 12: R: 2: c: 11: unlesse it can be any way iustly excused, Dier: fo: 285: n: 37: but it is much doubted whether slanders spoken against a Prince may be referred hither or not. Id: 155: n: 19:

5 This Action as all other Actions of tres­passe lies against him through whose fault, and by whose will the Iniury was done. Brac. l. 3. tr. 1 c. 6. and is given for the repairing the damages of the party iniured; as himself esteemes them, and the Jury who in this case are Judges shall give. Id. ib.

6. Nor will words which are too generall Coo. l. 4. S [...]an­hops case fo. 15: n: 4: or which have a dubious Interpretation, Id. ib Hext c. or false accusations before a competent Id. ib, Buck­lers case n, 3. Judge, give colour to this Action, besides that it may be defended by Justification, Flet. l. 4. c. 17: and adnulled by the dissimulation or tergiverfa­tion of the party iniured, Brac. l. 4. tr. 1. c: 28:

Of Obligations which arise from imputed Crimes.
TIT. V.

A Judge with us according to some makes the suit his own by mis-judging, Brac: l, 5, tr, 5, c: 15. but at this day the party who is prejudiced and wronged by a Judgement; rather removes his cause to another Court, either by a Writ of Errour, if the Court were a Court of Re­cord, or otherwise by a Writ of false Judge­ment, and requires amendment and correcti­on of the former sentance. 27, Eliz. c, 8,

1. Yet are there Obligations with us also from imputed crimes, as in case an under-Sheriff give false information to the Kings Court, or make default in Executing the commands of the Justices, the Sheriff himself shall undergo the penalty, and not he, Dr, Stu, l, 2, c: 24, so also, if the Kings Cup-bearer do substitute others in his Office, he shall be obliged for their defaults, 25, E, 3, Stat, 2, c, 21, which holds true not only in the Exchequer, 14, E, 3, Stat, 1, c, 9, Dier, 161, n, 45, and 238, n 38, but in other Courts likewise where the Officers Deputies do not performe their duties, Crom [...], Juris, 111 as also in Eschea­tors who substitute another whose Act they refuse to be obliged by. 12, E, 4, c, 9, Coo. l, 4, Mit­tan case, fo. 33,

2. In the like manner are Hundreds of Counties obliged to the compensation of what is lost by Roberies committed within [Page 218] them; unlesse they apprehend the Theife: (b) And the Neighbouring Villiages, to any place, whose Trenches and Hedges are ille­gally throwne downe by persons unknown, Id: c. 45.

3. So if a Servant by negligence burn his masters House and the neighbouring House to it, the Master is obliged; in like manner, is the Master of a common Inn, if his Servant Plowd. [...]o. 9. or any one else within his Inn, Dyer. fo. 158. n. 32. fo. 266. n. 9. take Monies from any Guest within the Inn, and the Keeper of a Prison, if any of his Servants suffer a Prisoner to escape, Dr. Stu. l. 2. c. 24. but of this you shall finde many other kindes in our learned Writers. Fulb. Para v. Contracts fo. 3. and 4

Of Actions.
TIT. VI.

AN Action and a Writ are often times used promi [...]cuously for a Writ wherein a party is summoned, containeth a breise and short narration of the Fact, which produ [...]th an Action. But those Lawyers of ours who professe the Explication of Writs, asfirm them to be of a far larger extent then Actions The Author of the Register, F. N. B. Bract. 1. 5. tr. 5. c. 17. for that they contain many extrajudiciall commands of the supream power, in those businesses which concern either it's self, F. N. B. 232. 251. 147. the Common-Wealth, Id. 170. 169. 164. or private persons, Id. 79. 164. but the cheife part of them are in cases of [Page 219] Judgment. Of which some constitute Judges, Id. 110. some require those who are already con­stituted to administer Judgment to those who demand, Id. 153. 240. some free men for a certain time from Judgments, for some speciall cause, Id. 28. some force those who are unwilling to give security to bear Judgment, Id. 85. some permit those who are in Suit, to substitute others, to prosecute for them, Id. 156. some prohibite and keep within compasse those Judges who stretch their Jurisdictions too farr, Id. 39. some remove causes from one place to another. Id. 70. 69. Lastly some informe and commence processe, Regist. Ori­gin. and others prosecute and bring to an end those which are begun, Reg. Judici­ale. now those which begin processe are called originall Writs, and those which promote and end processe begun, iudiciall. Regist. Brev.

1. All Actions flow either from the com­mon Law, or from Statutes, Bro. Action populer & Sur le Statut. but from which soever they flow, they are all either against the person, or the Estate, or both. Brac. l. 2. c. 3. n. 234.

2. Personall Actions are those which arise against any one from a Contract reall or im­puted, or from a crime reall and proper or im­puted. Now those Writs which are Issued forth in either case upon Contracts are for the most part these. A Writ of Covenant, F. N. B. fo. 145. of Account, Id. 116. of Debt, Id. 119. of Detinue, Id. 138. of Trespasse, Id. 92. upon the case, in which the assumption is contained. Bro. Acton Sur le case 24.

3. Those which are issued out in either case, as touching Crimes, are those of Trespasse, F. N. B. 85. Deceit, Id. 95. breaking of a Park, Id. 100. or Inclosure, Rescous, Id. 105. Attaint, Id. 105. Conspi­racy, Id. 114. Champerty. Id. 171.

[Page 220] 4. Reall Actions are those who are main­tainable against any one not obliged to us by any Right, because our estate corporall or in­corporall, which is immoveable is possest by him, or as it were in his possession, which he may either restore or name the party in whose name he possesseth it: as if one demands of any one a thing certain, viz. a Fee, Lands, an Advowson, pretending ones self owner of it, and sues not for the value, or so much in the same kind, but the same specificall thing, and for this, that the demandant supposeth the thing his, and brings his Action against the Tenant, who denies it, the Action or Plea shall be against the thing it self. Brac. l. 3. tr. 1. c. 3. n. 3.

5. If the thing sued for be a moveabe, as an Ox, an Asse, a Garment, or something consisting either in weight or measure; al­though the Action or Plea at first seems to be as well against the thing, as the person, because a certain thing is sued for, and for that he who possesseth it is bound to restituti­on: yet in truth the Action is against the person, because the party sued is not precisely bound to restore the specificall thing, but under a disiunction, either the thing or its value, and he is freed by paying the value onely, whether the thing be to be had or not, and therefore if any one claim a thing move­able taken away upon any occasion, or lent, he ought in his Action to ascertain a value, otherwise it is of no force, nor signifieth any thing. Brac. l. 3. tr. 1. c. 4. n. 4. Fle­ta. l. 2. c. 60.

6. Now of Actions civill, and for a particu­lar thing, as the claim of a particular thing, [Page 221] some are confessory, and some negative, con­fessory, as where one affirms a corporall or in­corporall thing to be his, as a Fee: also: where he affirms himself to have a Right of going through his neighbours Fee, or of drawing water, even whether his neighbour will or not, and it is therefore stiled an Acti­on for a particular thing, because he requires his particular incorporall thing, viz. his Right of a way through a Fee; and confessory, be­cause it is by words of affirmation. But an Action negative is that which the Lord or owner of a Fee brings against one who is accustomed to have a way through his Fee, denying that he hath any such Right, and this Action is said to be for a particular thing; Because by it the Lord of the Fee doth by it claim his Liberty: and these kind of Acti­ons are not for the Dominion or property of a thing, but onely touching the Right of Estates. Brac. ib. n. 7. Flet. l. 5. c. 37. 38, 39, 40.

7. We have also something paralel to that which was anciently called Actio Rescissorla, for if any one be dispossest of his Estate being in durance, and the Lands descend to the Heir of the Disseisor: the Disseisee hath li­berty to recover his possession by his own pro­per Act, or (as we term it) to re-enter, and if Judgement be given against him, he may reverse it afterwards by a Writ of Er­ror, because his absence was not through con­tempt, but by reason of Durance and im­prisonment; and therefore it seems contrary to reason, that he should be prejudiced by any such Record, and there is the same law, [Page 222] for those who are in the Kings service, or who are beyond the Seas in any businesse which concerns the Common wealth, and are in the mean time disscised being unable to make their continuall claim, nay there are some who affirm that he who is beyond Seas about Litt. l. 3 c. con­tinuall claim. his own businesse if he be disseised, may up­on his return upon his own authority reenter upon the Heir of the Disseisor, without bringing his Assise. id. ibid.

8. And there is somthing likewise which an­swers to that same, Actio Pauliana, and which is afforded by a particular act of Parliament, 13 Eliz. c. 5. which renders all manner of alienations of Lands and Goods, made by the Debtor to defraud the Creditor, void, and of none ef­fect, and moreover inflicts a penalty upon all those who are guilty of it, and who defend it as lawfull.

9. Nor do we want that which equalls the ancient Actio Serviana, for the Lestor may of proper Right distrain upon goods which are brought upon his Fee; and detain them un­till his Rent be satisfied, because we also do tacitely esteem these in the nature of Gages, or Pledges, although this be not with­out Distinction. Bro. Distresse 13. 57. 99. To this also may be ad­ded that Actio hyp [...]thecaria, & quasi Serviana, for if any one receive monies borrowed of a­nother under a Pledge or Pawn, and can­not afterwards receive his pawn upon tender of the monies, the Creditor refusing to rede­liver it, the Debtor may in this Case have his Action, F. n. b. 86. G. and he is said to sue upon an Action quasi Serviana, who being seised of [Page 223] Lands, as by way Mortgage, is disseised or elected out of them.

10. Now writs which are proper to reall Actions, are either to recover a property, or a possession, Flet. l. 6. c. 1. those which appertain to a property are writs of Right which are of di­vers kinds, F. n. b. 1. 6. 11. 19. 193. and those also which are of the same nature. Id. 157. Plow. 357, 358

11. We may sue for a possession, or for that which is of the same nature, whether they be lost by force, or detained, being commit­ted voluntarily to another against Right, in which the former Cases we may be relieved by [...]its which we call Assises, F. n. b. 177. 179 181, 183. 134. 88. 190. 191. and those which are of the like nature. 13. Ed. 1. c. 25. Brac. l. 4.

12. And for the recovery of a possession which being voluntarily delivered to another is uniustly detained. There are writs of En­try of divers kinds, and others like them. F. n. b. 201. 205. 206. Brac. l. 4. tr. 7.

13. Preiudiciall Actions also are reckoned [...]mong reall: now those are termed preiudi­ciall which arise from incident and emergent questions, in which it is inquired, whether one be born free or not, if not, then whe­ther he be actually free or a Servant? a Son or not a Son? and if a Son, then whether legitimate or Bastard, &c? Brac. l. 3. tr. 1. c. 4. n. 9. Brit. c. 108. and they are called preiudiciall, because they are iudged and determined before the principall Acti­on. Id. ib.

14. Actions which are mixt, being as well against the thing as the person, and so call­ed because they have a mixt cause relating to both, as the dividing an Inheritance be­tween Co-heirs, the setting of Bounds a­mongst [Page 224] Neighbours, for if we respect the per­sons, they are both complainants, and re­spondents, although he is not properly said to be complainant, who cites the other to come to Judgement. The Writs which are proper in these Cases, are these de Partitione, F: n: b. 61. de rationabilibus divisis, Id. 121. de perambulati­one facienda, Id. 133. de Curia claudenda; Id. 127. de reparatione facienda. Id. ib.

15. Furthermore there are Actions which are given either solely as penall, Brac. l. 3. tr. 1. c. 4. n. 5. or as beneficiall to both, which some call Civill, criminall, or mixt. Glan. l. 1. c. 1. Brac. l. 5. tr. 5. c. 31. Littl. c. Releases.

16. Those which relate meerly to a particular thing, are all those which grow from Con­tracts, or of the same nature, and claim no­thing for wrongfull detaining, or nomine penae, as a punishment of the Crime, F. n. b. fo. 1. and those are penall, which are ordained for the preventing of misdemeanours, of which sort are those popular Actions which are given to Informers for the benefit of the Exchequer, and themselves against the breakers of Sta­tutes, Id. 171. and those relate both to the thing, and person, which regard the thing as the principall cause, and the person as to perso­nall performance, Brac. l. 3. tr. 1. c. 4. n. 5. of this sort is a writ of Assise which claims the thing, as to resti­tution, and yet is against the disseisor, as to Dammages for the iniury, Id. l. 4. tr. 1 c. 6. n. 3. 20 H. 3. c. 4. and a writ of waste, which requires the thing wasted, and trebble dammages. 6 Ed. 1. c. 5.

17. There is also a third division of Acti­ons, for that some give barely the damma­ges (k) Brac. l. 3. tr. 1. c. 4. n. 6. sustained, some double, some trebble, and [Page 225] some ten-fold. Brac. l. 3. tr. 1. c. 4. n 6. Those which give barely [...]he Damages sustained, are all Actions of Trespasse. New book of Entries, Trespasse. Those which give double da­mages, as against such as make an assault a­gainst those who are called to the high Court of Parliament, 11. H. 6. c. 11. and against him who prosecutes any Action in the Court of Admi­ [...]alty, which is not within the jurisdiction of [...]he Court: And lastly, against those who [...]et too high a rate upon Victuals. 2. H. 4. c. 11. Treble damages are against those who unjustly ex­ [...]ct money for the probate of Wills and Te­ [...]aments. 23. Ed. 3. c. 6. Or who cause Ryots. 3. & 4. E. 6. c. 5. And [...]en-fold the damages are recoverable against [...] Juror who receives a Bribe for bringing in [...] Verdict. Ib. & 1. Mar. Parl a. 1. c. 2.

18. Besides, wee have not unaptly said some Actions to be bona fidei, and some of [...]rict Right; for though no such distinction [...] expresly found amongst our Lawyers, yet [...] finde them frequent in practice. For the Damages which we receive from Contracts or Trespasses are left and remitted to the e­ [...]ty of the Jurors, what, and how much it [...], and Judgment is given according to their estimation. Where on the contrary, in Acti­ons which have reference principally to the thing, unles the complainant prove the thing [...] Action to be due, and to be his, the Acti­on falls, because neither the Jurors nor the [...] have any other power in these then to condemn the Defendant, as to the thing in Action, or to free him. Whence it happens, that one and the same thing often occasions a double Action, viz. a principall Action for [Page 226] the thing which is of strict Right, and ano­ther which is accessory for the recovery of Damages, which is bona fidei.

19. In the distinction of arbitrary Acti­ons from Actions, bona fidei. The Civilia [...] doe not very punctually agree. Nor do wee find any other of them in use amongst us in England, more then these we have observed: Only this we may adde, That the Chancel­lour of England, or the Keeper of the Great Seale [whose Authority is almost the same] to whose Conscience and Equity every one who is without remedy in the Law may ap­peale from other Courts before Judgement given, is not bound or prescribed by any Lawes, but that hee may decide and com­pose all causes which are for this purpose brought before him, according to the Judge­ment and Conscience of a Good man, and imprison him who is contumacious and re­fractory to his Decrees, and detain him there untill he becomes conformable. Plowd. 532.

20. We have no use with us of that which was called Actio de Peculio, in regard we are not obliged by their Contracts, who are un­der our power, unlesse so farre as they be in order to our Commands. Dr. Stu. l. 2. c. 42.

What is said to be a Contract made by him who is un­der the power of another.
TIT. VII.

THose Contracts which are made by our Servants by our command, are binding [...]o us: V. n. b. 62. F. n. b. 120. G. For if I make one of my Servants [...]y Bailiffe, and give him a power of taking Oren or other Cattel to graze in my pasture [...] a certain price, I cannot have an Action [...] Trespasse, or de conculcatione herbarum a­gainst him, who shall upon such a Contract [...]urn his Cattel into my Pasture. Bro. Entries, Tresp. in Agist.

1. But if my Servant shall borrow mo­neys in my name, I am no way obliged, ex­cept the moneys be employed for my use, and [...]y my consent, V. n. b. ib. which is also true in what Contract soever. Dr. Stu. l. 2. c. 42.

2. But if I send my Servant to a Market, [...]ad bid him buy certain things for mee, and doe not design any person, I am obliged to him of whom he buyeth those things in my [...]ame. But if he buy them in his own name, without mentioning me, then it is other­wise, unlesse the things so bought come to my use. Id. ib.

[Page 228] 3. If also I send my Servant to a Market to sell something of mine which I know to be unsound, to A. In this case I am obliged by such Bargain and Sale: But if I give him order simply to fell it to whom he can, here no Action will lye against me. Id. ib.

4. If a Wife buyeth any thing in a pub­lique Market, and the party of whom shee buyeth it trusts her for the payment of the price: In this case her Husband is not bound▪ unlesse the thing bought be converted to his use. V. n. b. 62.

5. But in some Cases the Law presumeth a Consent of the Master (although there be none particularly expressed) in the contra [...] of a Servant; as in those whom Merchant [...] place in their Shops or Ware-houses, as Fa­ctors: For that the daily and continual pre­sence, knowledge, and sufferance of the Ma­ster doe sufficiently argue his consent, whe­ther it be Wife, Children, or Servant, wh [...] so trade in his Commodities.

Of those Actions which by the Ci­vill Law lay against the Lord for an Offence or Crime done by his Servants or Cattell.
TIT. VIII.

THis Action which is called Noxalis Actio, and lies against the Lords for the crimes of their Servants, is unknown to us in Eng­land; for that they themselves may be con­vened for their proper Crimes (our Villains not being otherwise Servi, then as they are Ascriptitij) unlesse that any one commands his Servant to doe an unlawfull Act, for in this case he is no lesse concerned then if hee had commanded any other, who was not in his power, or under his subjection. Dr. Stu. l. 1. c. 9.

1. Yet as to bruit Beasts, and things ina­nimate, by which a man happens to be slain, we have something like to the Noxalis Actio in use with us. For if a Horse by kick­ing, or a Bull running madde, or a Cart drawn with Oxen happen to kill a man, this, whatsoever it be, is in a manner sacred, [un­lesse it belong to the King.) And I question whether it were not the ancient custome to burne them: But at this day they escheat to the Supream Power, yet so, as that the [Page 230] thing being sold, the money for which it was sold is disposed of by the Kings Almo­ner, and employed in pious uses, and it is for that Cause called Deodand. Id. l. 2. c. 3. Stanf. pl. crow. l. 1. c. 2.

Whether a foure-footed Beast may be said to commit a Trespasse or not.
TIT. IX.

IT is a rule with us, that every man is obli­ged to repaire those damages which his Beast, though against his knowledg, commits upon his Neighbours Corn, Grasse, Trees, of Fruit, either by eating, or treading of them. Dr. & Stu. l. 1. c. 9. Fulb. wrongs, fol. 81.

1. And hee that is damnified by anothers Cattell, may detraine them in a publique Pound untill he be satisfied as to the Dama­ges: Id. l. 2. c. 28. So that if they dye for hunger, it is at the Owners perill, and not at his who did impound them. But if the Owner offer suf­ficient for satisfaction of the Damages, and the other refuse, the Owner may release his Cattell by the office and power of the She­riffe, giving security, that either they shall be forth-coming, or that he will pay so much money as shall be adjudged due for the Da­mages: F. N. B. Re­ [...]levin. And if upon the tryall of the bu­sinesse before the Sheriffe no Damages ap­peare, [Page 231] then the Owner shall by this meanes recover Damages for the detinue. F. N. B. 69. G.

2. If ones Dog chase anothers Sheep, or bite them, by which meanes they either cast their Young, or dye, or take any other hurt, the Owner of the Dog is bound to make satisfaction, Boo. Entries. Tresp. in Chein. which notwithstanding some deny, unlesse the Owner of the Dogge knew that he would bite, Dyer, fol. 25. n. 162. or else set him on. Id. fol. 29. n. 195.

3. But if any one be driving a Flock, or Herd of Cattell in a publique way, and they happen suddenly to break into another mans ground, the party following them, and endeavouring to keep them from committing Damages, is no Trespasser, Dr. Stu. l. 1. c. 16. but yet hee is bound to repair the Damages if any be committed. Fulb. c. 10. wrongs, fol. 81.

Of those by whom we may sue.
TIT. X.

WArds and Infants ought to sue by their Tutors, Guardians, or Attor­neys, unlesse in such cases in which Infants are bound to answer, notwithstanding their Minority; but what those are is to be enqui­red of others. Brac. l. 5. tr. 2. c. 1. n. 2.

1. It seems that in ancient time it was at the pleasure of the Judge whether one should have his Attorney or not, because the Writ [Page 232] seems to require a personall appearance. F. n. b. fol. 25. C. But this is by deg [...]ees changed by Acts of Parliament; 20. H. 3. c. [...]0. 9. Edw. 1. c. 8. 13. E. 1. c. 10. 27. E. 1. Stat. 2. 12. E. 2 St. 1: c. 1 15. E. 2. 7. R. 2. c. 14. 4. H. 4. c. 18, 19. 7. H, 4. c. 13. 5. H. 5. 2 H. 6. c. 3. 9 H. 6. c. 10. 15. H. 6 c. 7. so that at this day nothing is more frequent and common, then for every man in what cause soever that is private, whether it be reall or personall, to sue or defend himselfe by his Attorney. Yet at this day we might find many cases, in which wee are wholly forbid: And others, in which it is not permitted to make use of an Attorney without leave from the Justices. F. n. b. fol. 26. D. Bro. At­torn. 69. 81.

2. An Attorney also, or Procurator, ac­cording to the ancient Authors, may make Oath for his Master. Brac. l. 5. tr. 2. c. 2. n. 3.

Of giving of Pledges or Se­curities.
TIT. XI.

IT appears from the formes of most Origi­nall Writs, That the Plaintiff was bound to put in security, and give Pledges for to prosecute, before the Defendant could be di­strayned, taken, or forced to put in Baile. Spec. Inst. l. 1. c. des. Ar­tic, &c. But this custome is long since ceased, and those words of the Writ are become meerly formall, as many Practicers have told me: For that the Sheriffe in his return of the Writ names Pledges for prosecution, not as to oblige them to any Processe, but [Page 233] to avoid Errour, since that really there is no body obliged.

1. How the Defendant in former times gave caution, or put in Baile for his appea­rance, many have declared at large, but that for the most part is altered. Wherefore for the more full handling of this businesse, wee have thought it needfull to run over and ex­amine the custome of every Court.

2. The Upper Bench in the Infancy of the Law did for the most part handle crimi­nall causes: And [if that be true which wee read] tooke little cognisance of private con­tracts, unlesse it were out of particular favor, but left them to be decided by the Justices of the Common Pleas, the Sheriffs in their County Courts, and Barons, and Lords of Mannors. Glan. l. 1. c. 2, 3, 4. & l. 8. c. 10. & l. 10. c. 10. 18. But at this day it receives and determines all civill Actions which can but be drawn within the compasse of Trespasses, vi & armis, or contra pacem: Cromp. fol: 47. And the Defendant, if taken within the same Coun­ty where the Court is (viz. in Middlesex) is brought to answer any private Action what­soever without distinction. This writ is called a Bill of Middlesex. But if it be not found in that County, then he is suppo­sed, under the pretence of fraud or contempt, to sculk in the County where he dwels, un­der which colour he is commanded to be ta­ken, and to be committed to the Marshall of the Court to be kept. In whose custody so soone as he shall come, because he is now in the same County where the Court is, he may be compelled to answer any Action whatsoe­ver, Dyer, fo. 217 n. 1. and to put in Baile to the Action, [Page 234] unlesse he will goe to prison: And by a Writ of Errour every Action, together with the Records of the Court which concerns it, may be called into this Court at this day, not with­standing that it could not take its beginning there. F. N. B. Bro. Error. Crompt. fol. 47, 48.

3. In personall and civill Actions which are prosecuted in the Common Banck, or Common Pleas. There first issueth forth a Summons, Brac. l. 5. tr. 5. c. 31. n. 2. which is taken out of the Chancery, as all originall Writs are. And if the Defendant be not found; or being found, doe not appeare, there is issued forth a Capias, Alias, & Plures, yet so as there are fifteen dayes intervene each Writ: And if he be taken, he is committed to prison to be kept till the day of his appointed appearance, unlesse he give security to the Sheriffe (who is the person commanded to take him) for his appearance; which being done, he could no longer detain him, except it were for some particular causes,: V. N. B. 41. F. n. b. 66. E. But if after the Plures they could not be taken, then an Exigent was issued to the Sheriffe, in which he is re­quired to demand him in open and publique County Court for five Court days together, to make his appearance: And if hee did not appeare then, he was deprived of the Kings protection, and lost the benefit of a Subject, for he was proclaimed out-law'd, and all his Goods, Chattels, Rents, and Profits of Lands, and whatsoever did naturally grow thereon were forseited to the Exchequer, notwithstanding that the Action was personall. Bro. forfei­ture. fol. 30.

[Page 235] 4. In reall Actions, if the demand be of a Corporall thing. The Defendant is first summoned: And if he appeare not, then the thing in Action is seised into the hands of the Supream Power untill he do appeare, V. N. B. fo▪ 126. 161. which is done also, if after his first appea­rance he delay to answer. Id. ib. If it be a Right which is in question, and cannot conveni­ently be taken, then the Defendant is sum­moned, and not appearing, his Goods are distrained: Id. 71. 27. But I cannot affirm this rule so constant as not to faile. Assis. ult. present. fol. 26. But there is no great necessity of being exact here, in regard every Writ hath a forme in it of ta­king security, by which the Defendant is bound in Law. Regist. O­rigin.

5. There is no Processe lies against the bodies of Parliament men, or of Bodies po­litick, but they are first summoned: and up­on their contempt, their Goods distrained untill they appeare: For the Law presumes them who are Parliament men are able e­nough: V. N. B. fol. 61. And bodies Politick have not visible Existencies whereby they may be ta­ken. Plowd. 538, 539. And Noble men and Prelates who claime the Titles of Peers, and who sit in Parliament, have alwayes had the privi­ledg, That in Corporations and Burroughs through which they passe, their Horses can­not be distrained for Debt upon a Contract or Trespasse, so long as they have other Chattels there by which they may be distrai­ned. F. N. B. fol. 93. I.

6. There are certaine Cases wherein the Defendants body may be taken without sum­mons, [Page 236] and hee be compelled to put in baile for his appearance, in which cases his Goods may be distrained, though he be not perso­nally taken, F. n. b. Trcsp. fo. 85. 92. V. n. b. 49. as Trespasse and other ca­ses of the same nature. V. n. b. 121. 57. 69. 92, 93. And if the De­fendant have not Goods, then is he sued to the Utlawry.

7. In the Chancery, in cases of Equity, there is first a Summons under a pecuniary mulct of a hundred pound, to appeare at a day prefixed; Which if they neglect, then their bodies are taken, if found, and either they are committed to prison, or forced to put in Baile: But if they be not taken, then Proclamation issues forth, and is made in di­vers places of the County publiquely, where­in they are summoned upon their Allegi­ance. And if upon this they appear not, then a Commission is issued forth to certain Emi­nent men, in which they are permitted to seize them as Rebels, and to bring them, or cause them to be brought into the Chan­cery by a day prefixed in the Commission. West. part, 2. Sect. 22, 23, 24. But even here also Parliament men in­joy their priviledge; That the Lords Chan­cellors by their private Letters doe gently intreate them to appeare, and answer by their Attorney. Id. ib. 21. But if in this Court Processe be according to the custome of the Common Law, as upon an account, Cromp. 41, 42. or an Audita Querela. Plowd. 72. Then are they also compelled to appeare by Writs fitted for the exigency of the businesse.

8. In causes criminall which are capitall, as in Treason or Felony, there is first a Ca­pias [Page 237] issued forth, then Alias, & Plures, then an Exigent, and upon non-appearance, they are out-law'd, Lambert. but if they be apprehen­ded they are in some cases committed to pri­son; without any hope of being released un­till Judgment past, 1. West. c. 15. 23. H. 6. c. 10. 1 & 2. Phil. and Mar. Lambert l. 3. c. 2. pa. 334 but if it be only for a sleight suspition of Felony, or for Petite Lar­ceny, the Sheriff may take Baile for appea­rance, and is compellable upon his refusall. V. F. n. b. fo. 41

9. If the Offence be not capitall, the She­riff is commanded to cause the Defendant to appear, at a certain day to answer certain Articles, and if he come not; the Sheriff is to make his return, and certefy the Justices, whether the party have sufficient Goods and Chattells, or whether he have nothing. For if he have, his Goods are to be distrained, till he come, if not, then Process issueth forth untill he be out-law'd. Lamb. in supplement pro­cess.

10. There are other particuler waies of proceeding, in causes criminall, expresly ap­pointed in particuler cases which are to be collected out of such Statutes, wherein they are injoyned are prescribed. Lamb. l. 4. c. 8. p. 505.

11 There are also certain cases in which the Plaintiff upon his own Authority seiseth the Goods of the Defendant, and requires him to come to make an extrajudiciall satis­faction, or at least to come to Judgment: As for Rent which is due; either as a Service, Dr. Stu. l. 1. c. 7. V. F. n. b. fo. 42. or as charged Lit. l. 2. c. Re­lease: upon the Lands.

Of Perpetuall and Temporall Actions which discend to Heirs and against Heires.
TIT. XII.

OF Actions there are some which are per­petuall, and some which cease at a cer­tain time, for although Bracton asfirmes, l 3. tr. 1. c. 3. n. 5. almost all Actions to be temporall for want of sufficient proofe, yet this hapneth not so much from the nature of the Actions, as from the difficulty of proofe.

1. I call those perpetuall which cease on­ly tacitely through continuall forbearance, and which have not any set time expresly al­lotted for their continuance. Of the second sort there are many which arise both from the common Law and Statutes. For these if they be not prosecuted within the time limi­ted, do cease and fall: For example, the Owner of a Park hath an Action against any one that hunts in his Park, if he sue within a year and a day, but if he let that time passe, the King only may prosecute the Action. (b) I Westm. c. 20.

2. But there are some which are so perpe­tuall that no process of time can extinguish them: As those which by the Law of Nati­ons [Page 239] are inherent in the Crown by reason of the Kings Priviledg and Prerogative. As of things which have no Owners: Also of Things, Liberties, and Dignities, which apper­tain to the Kings Crown, and in which ca­ses no time occurs against him, if he require them: Where he hath no need of proofe, but may recover without proofe, unlesse the party impleaded may have a Warrant, i. e. a speciall liberty granted by the King, because he makes no defence from prescription. Bract. l. 3. tr. 1. c. 3. n. 5.

3. There are also some so purely tempo­rall that when the person dieth they neither discend to his Heires or Executors, nor do they lye against Heires or Executors, As those which are penall, for a Penalty ought not to be extended to any other then the Au­thors, nor to proceed further then the crime extends it self. Id. c. 2. n. & 5. & l. 4. tr. 1 c. 20. n. 11. Dr. Stu. l. 2. c. 10.

4. Nor can Heires or Executors sue or be impleaded from Covenants in writing, un­lesse there be particuler mention made of them in the Instruments of Covenants. Now what Actions are temporall from the Statutes of the Common-Wealth we have shewn be­fore. Lit. uses & Prescriptions.

Of Pleas and Exceptions.
TIT. XIII.

HItherto we have spoken of Actions, it re­maines that we speak something of Pleas for Pleas are in the place of Actions, and in respect of Actions are tearmed Pleas or ex­ceptions, in regard that one impugns the o­ther, and as those who so are armed with Acti­ons are prepared as it were with Swords, so the Defendants on the other side are guarded with Pleas as with sheilds and bucklers, Brac. l. 5. tr. 5. c. 17. Fleta l. 1. c. 32.

1. Now an Exception or Plea is as it were the cutting asunder of an Action, by which an Action is destroyed and defeated. Id. ib. c. 1. Fl. l. 6. c. 36.

2. An Action is taken away by the Plea of Per metum, & dolum, as if one pleads such an Obligation to have been extorted from him, Per metum & dolum, Id. l. 3. tr. 1. c. 2. n. 13. Brit. c. 28. fo. 66. so also by reason of not counting or telling Money: As if a man promise Money to another from whom he ex­pects to have the same in a small time coun­ted to him, he may have this Plea against him, afterwards when he shall demand it, yet it seems that this Plea wil not prejudice an ob­ligation in writing Brac. l, 3. tr. 1. c. 2 n. 9. unlesse the Defendant can also shew an Acquittance in writing, New tearmes Acquittance. also by Contract, as if one first covenant that he may demand and then, that he may not demand, Brac. ib. or if one doth make satisfaction [Page 241] and recompenceth any way a trespass com­mitted by him, and so takes away the cause of Action, New tearmes Record. so also by an oath, according to our ancient writers, viz. When an Oath shall be brought, or related, and afterwards [...]worn, Brac. ib. and lastly, by pleading a former [...]udgment, as if the Ancestor of the Plaintiff [...]r any of his Heires lost the thing in Action [...]y a Judgment in case of property; as by a Grand Assise, or by Battaile, or by verdict of [...] Jury, upon whom they had put themselves. Id. l. 5. tr. 5. c. 28. n. 7.

3. Of Pleas, some are dilatory, and some Peremptory: Brit. c. 29. Termes, v. Barr Flet. l. 2 c. 54. and l. 6. c. 36. and of those which are dila­ [...]ory; some are Peremptory, as to the Jurisdi­stion, and dilatory as to the Action, and not peremptory: And in like manner some are peremptory as to the Writ, and dilatory as to the Action: Termes, v. Addition Flet. l. 4. c. 10. Sect. 1, 2. and l. 6. c. 36. some Pleas also are generall as to all Actions, and some speciall which are allowed only to particuler Actions. For [...]ll Actions have their proper Pleas, accor­ding to the form of the Actions. Brac. l. 5. tr. 5. c. 1. in the beginning.

4. And there is a kinde of Plea which we [...]all a waging of Law, and which is (as to Law) peculiar only to us English; for the Defendant is admitted for the defeating of an Action of Debt which the Plaintiffe proves only witnesse without any specialty to wage his Law, i. e. to make his defence against the Suit brought by the Plaintiff by two compur­ [...]ators for every witnesse that is produced un­to the full number of twelve: now in this case [...]e himself first makes oath, that he doth not [...]we the summ, demanded, nor any part or [Page 242] parcell of it, and the Compurgators swear out of their own credulity, that they beleeve the Defendant to have made a true Oath, Flet. 1. 2. 63. but against an Instrument or Specialty (as we call it) a Wager in Law licth not. Dicr s. 23. 143.

5. Genciall pleas are those which lie ge­nerally against all Actions: As the Plea a­gainst Jurisdiction against the Person of the Plaintiff, against the VVrit, that Plea which ariseth from time, according to the divers sorts of Actions, and that which comes by reason of the place through the Errour of bringing the Action there; now all these are dilatory as to the Action, and as it were be­side the Action, and therefore they do not de­feat the Action although, Brac. l. 5. tr. 5. c. I. [...]pec. Just. l. 3. c. Ex­ceptions dila [...]o­ry. Fletal. 2. c 61. l. 4. C. 10. they do defer it and abate it for a while.

6. Now one may use many Dilatory Pleas and severall, provided they come in their proper places, but if there happen to occur more then one, which are peremptory, as to the Actions, the Defendant ought to propose and prove one as contingent to the Actions, as where a man hath many Actions one ought to betryed, because if the Defendant should fail in proof of two Pleas, he may have recourse to the rest, and prove them, as if he were to defend himself with many weapons, which ought not to be, if the proof of one be sufficient. Brac. ib. c. I. n. 7.

Of Replications.
TIT. XIV.

AGalnst a Plea or Exception which seem­eth plausible, and full at the first sight. The Plaintiff may releive himself by a Re­plication, as if a man brings his Acton: the Defendant may plead a Covenant interve­ning to hinder the demand or Action, against which the Plaintiff may in his Replication produce a Covenant inserted after that which doth permit and enable him to sue and demand. Brac. l. 5. tr. 5. c. I. n. 4. Fle. l. 6. [...]. 36.

1. After a Replication follows a Duplica­tion, after a Duplication, a Triplication, af­ter a Triplication a Quadruplication, as the Case requires, and so ad infinitum. And lo it may fall out, that an Action, which prima fasie seems good, may be defeated by a Plea, and in the same manner a Plea, which seems good by a Replication, and so in the rest.

2. Out Lawyers, call a Duplication, as well in the Chancerv, as in other Courts a Rejoinder, and a Triplication a Sur-reioin­der. Wests Procee­dings in Chan­cery, Sect. 56, 57.

Of Prohibitions.
TIT. XV.

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

Of the penalty of those who are rash­ly Litigious.
TIT. XVI.

AMongst the Ancient Writers of our Law there may be many marks found of the severity wherewith our Ancestors punished, those whom the Issues and ends of their suits proved and manifested to be litigious without cause, which although it seems to be at the present more remisse, yet is it not wholly laid aside, for if any be found rai­sing suits against others maliciously, they are adiudged to bring a scandall upon the Court, and are oftentimes for their offence commit­ted to Prison. Bro. Ent. tit. Attomey. F. n. b 114.

1. But this is for the most part the custome at this time, that the Plaintiff, if he be cast, is adiudged to pay unto the Defendant the Costs of his Suit, 23 H. 8. c. 15 24. H. 8. c. 8. and the Defendant if overthrown, payes to the Plaintiff the thing in Action with dammages and costs of Suit. And although it be the constant Custome to pronounce the party cast to be in misericordia Regis, F. n. b. f. 77. K. yet those words as to the Plaintiff, are of no use, and as to the Defendant one­ly, where he betrayes too much contumacy in the maintenance of such a cause, which is manifestly uniust: but if he appear maliti­ous, then is he to be taken and made to pay [Page 246] his Fine to the King for his contumacy, yet is this Fine for the most part very easie when he is taken. Dier s. 67. n. 19.

2. The License and Liberty appears to be very great, which our Ancestors permit­ted to those who were contentious, that they might meerly through envy, and the plea­sure they took in being vexatious, take men upon Writs, and force them to put in Bail in the Kings Bench, or Mar [...]alls Court, and oftentimes to appear, and yet be unpunish­ed, though upon their appearance they ob­jected nothing against them. But this is pru­dently remedied by an Act of Parliament, which renders all those who procure any one to be arrested, and upon their appearance re­fuse to prosecute liable to pay them their Costs and Damages. And for that the impu­dence of some had gone so far, as to feign sometimes such persons, as were not in be­ing, in whose names they caused others to be arrested, that Statute condemneth such De­linquents to six moneths imprisonment with­out Bail or Mainprise. 8 Eliz. c. 1. 17 R. 2. c. 6.

3. But for the suppressing the Power of such litig [...]ous men, whom the bare hopes of recovering their Costs of Suit, will stir up to sue even for a trifle, it is decreed by Act of Parliament, that whosoever should bring a Personall Action which concerned neither Title of Lands, free Tenement, Inheri­tance, or Battery in any of the Courts at Westminster, in which Action the Judges of the Court should value both the Debt and Damages to be under forty Shillings, that [Page 247] the Costs of such Suit should not be assigned greater then the principall value. And that whereas the Sheriffs and their Deputies were wont formerly to cite and Summon the good people of England without any warrant or Writ to the said Courts, or to imprison their bodies, or distrain their Goods, that from thenceforth they should not dare to at­tempt the like, and he that made Default in this, or caused another to do so, should be committed to Prison without Bail or Main­prise, untill he had, besides Damages and Costs of Suit, paid ten pounds to the party in­iured, and twenty pounds to the Ex­chequer. 43. Eliz. c. 6

4. Nor shall a man escape unpunished, for moving or beginning every Suit rashly, for in some Cases, if the Plaintiff upon the Defendants appearance desist, he shall pay Costs, 23 H. 8. c. 15. as Informers upon penall Sta­tutes, if after the Suit begun, they delay, discontinue, or be non-suit in the same, or have the Triall or matter passe against them, by Verdict or Judgement of Law, they shall pay unto the Defendant his Dammages, and Costs which shall be assigned him by the Court. 18. Eliz. c. 5.

5. So also they who indict or impeach any one under the pretence of any crime, whereby their lives, credits, or Estates are in Jeopardy, are liable to an Action of con­spiracy, 33 E. 1. Sta. 3. 3 H. 7. c. 1. which presumes malice: where­by they shall be compelled to pay the full Damages sustained by such accusation or e­viction, [Page 248] F. n. b f. 115. [...]. and in some Cases they shall pay treble Damages. 8 H. 6. c. 10.

6. And I have heard from some practisers, that if any one in forma pauperis procure a Liberty of bringing his Action in the Upper Bench, Common Pleas, or the Chancery, according to the Statute, 11. H. 7. c. 12. and betray ra­ther a Spirit of Contention in the end of the Suit, then a iust cause, that such person shall have corporall punishment. 23 H. 8. c. 15.

7. But our Ancestors were wont to deterr men from their light, and rash Suits by an Oath, for it was prohibited every one to bring any Action of Battery before the Kings Ju­stices, (unlesse it were for wounds or maims) without they first made Oath that his Plaint was true, or an Action of Trespass for goods taken without making Oath that the Goods taken were worth forty shillings at the least. 6 E. 1. c. 8.

8. There are many Statutes made by the no lesse prudence then equity of former Par­liaments, 32 H. 8. c. 30. 18 Eliz. c. 14. 27 Eliz c. 5, &. 6. Plow. 83. 522, 523. for the speedy deciding of Suits, which that they might be preferred before private ends and profit, were to be wished by all good men, in regard rhey do principally recommend the truth of causes to the Justi­stices, reiecting all malitious calumnies of those who are subtle, and litigious, and a­mongst these that is worthy to be numbred, by which the crafts and knavery of under-Sheriffs, and their Officers and Bailiffes are restrained. 27 Eliz. c. 12

Of the Office and Duty of a Judge.
TIT. XVII.

OUr Kings were wont formertly at their Inauguration, or Coronation, to take an Oath to this Effect, viz. that they would keep inviolate all the Rights and Liberties of Holy Church, which were granted unto her by the Christian Kings of England, That they would keep without impairing or di­minution, all and singular the Land and Dig­nities appertaining to the Crown, and in­deavour with all their power the restitution of such as were impaired or lost, if any were: that they would cherish the quiet and Peace of the Church, Clergy, and people; that they would keep and observe the ancient Lawes and Customes of the Kingdome which were received and established by the consent of the whole people, and abrogate all such Cu­stomes and Lawes which were ill and naught. And lastly, that they would to the utmost of their power, assure Peace to the People of their Kingdome, and procure it from o­thers. Brac. l. 3. tr. 1. c. 9. n. 2. F. n. b 232. A. Spec. Justic. l. 1. c. 1. Flet. l. 1. c. 7.

1. The Oath of the Justices of the Superiour Courts, and of the Barons of the Eychequer, are to this effect, viz. that they will well and truly serve the [Page 250] King and his People, and not consent to any thing which may tend to their preiudice or Exheredation, that they will not take Fee, nor Robe of any man but the King, that they will not take any gift of any one whose cause is depending before them, except meat and drink, and that of a small value, nor a­ny thing for any cause, after it is tryed, Brac. ib. c. 8 n. 2, 3. & n. 9, 10. that they will not give counsell to any one in any case which concerns the King, under the pain of being at the Kings Will, as to Bo­dy and Goods, that they will not be deter­red by the Kings Letters from doing and ad­ministring Iustice to any one. Brac. ib. c. 8 n. 2, 3. & n. 9, 10.

2. This we have even from the very be­ginning 2 E. 3. c. 8. 20 E. 3. c. 1. Dier 138. n. 27 unto this present, that where any one is sued in case of property of a Fee Simple, for Lands or Tenements, it is at his choice whe­ther he will be tried by his countrey or by Battell, if he prefers to be tried by his coun­trey, the businesse is determined by a Grand Assise; but if by Battell, then a day is ap­pointed, Glan. l. 2. c. 6. & 7. Brit. c. 42. upon which the Case is committed to two combatants whom we call Champions, according to the Law of single Duell, be­tween whom it is decided by the event. Dierf. 301. n. 40. 41. 42.

3. The ancient custome of the Nation re­quires also that all Trialls of private Acti­ons (except a few) as to matter of Fact, Plowd. 92. 114. should be determined by a Iury of twelve free, and lawfull men of the same vicinage, who are neither allyed to either Party, Dr. Stu. l. 1. c. 7. or hindred by any iust exception. Dier 144. n. 59. 176. n. 27. 177. n. 33 316 n. 3. Bro. Tit. Challenge.

4. Those who are indicted for any capitall crime, or Felony before a Iudge, unlesse a­ny [Page 251] question arise touching matter of Law, are not allowed Councell. Yet the Laws require That the Judge himselfe should instruct the party in all things appertaining to the form of his defence, lest an ignorant Innocency endanger his life. Fortesc. c. 27. Dr. Stu. l. 2. c. 84. Stamf. pleas, l. 2. c. 63. But in case of an Ap­peale, hee may make use of others for his defence. And if he be so poor, that through want he is not able to procure Counsell, the Judg ought upon his request to assigne him a Patron to plead for him. Dr. Stu. ib.

5. As for the summe in which any one supposeth himselfe to be prejudiced, by rea­son of a Trespasse committed against him, the Justices doe proportion it either by the verdict of a Jury, or by vertue of their own Office: Brac. l. 3. tr. 1. c. 1. For they doe, after that the costs are taxed by a Jury, augment them upon cause shown.

6. If the Jurors being sworn, upon their going together, cannot agree upon their verdict, so that there be any danger, that they may perish through hunger, (because the Common Law prohibits them from eating and drinking without the Judges leave, un­till they are agreed together upon their ver­dict) when any such danger appears. The Judge may permit them to eate and drink, and remit them againe to consult; And if at length they can by no means agree, he may, having amerced them, discharge them, and appoint others in their stead. Dr. Stu. l▪ 2. c. 52.

7. We have before mentioned and decla­red, that that Action which was called Nox­ [...]lis Actio, is wholly unknown to us. Tit. 8. of this Book. [Page 252] Since therefore there is no Judge to appeal to in this case, wee need not trouble our­selves with Observation concerning it.

8. If in a reall Action, Judgement shal [...] passe for the Tenant, the Demandant shal [...] only be adjudged to pay costs of Suit: But i [...] it passe for the Demandant, the Judge shal [...] condemn him to pay Damages, and costs o [...] Suit, and shall command the Sheriffe Scire facias F. n. b. in the Index through­out, and in the Register. (or in case it touch any Benefice then the Ordinary) F. N. B. 38. to put the Demandant into possession, which the Sheriffe is bound to doe without delay. And this is true, whether the Demandant sue as Heire, or otherwise▪ and whether the Tenant were an Intruder, or not. For if he be a Disseisor, or forceable Intruder, he is worthy rather of punishment then favour; but if he be not, then the Jury lay little or no Damages upon him. Brac. l. 3. tr. 1. c. 3. & 5.

9. An Action is chiefly in case of Movea­bles; but as concerning Moveables, wee ne­ver sue for them in Specie (as I said before) but only propose the value. And having proved the thing in Action to be Ours, and the value so much, wee recover either the thing it selfe, or the value. I doe not finde that the Defendant can be compelled by our Law to restore the thing in Action: Yet in the case of Lands, or an incorporeall Right, the Demandant or Tenant may require the view of the thing, if it be out of necessity, and not to protract. In which case the Judg commands the Sheriffe; That at a day assiig­ned, he cause a view to be taken by such Viewers or Surveyers, as may certifie the [Page 253] Court at another day touching the quan­tity.

10. That which the Romans called Judi­cium familiae eriscundae, wee term Partition of an Inheritance: But whereas they divided as wel Moveables as Immovables among Heirs, we only make partition of Immoveables a­mongst those whom either the Common Law or the Custome of any place intitles to an equall part of an Inheritance. Lit. l. 3. c. 1, 2. Now this partition is made either by the consent of the Heirs, or by the Authority of the Magi­strate. That which is by consent, may either be so made, that the Estate being divided into equall parts, the Eldest shall have the first choise, and so the rest in their order, or else by Lots. Id. ib. Terms of the Law, v. Parti­tion. The forme of that which is by the authority of the Magistrate, we find described at large by Bracton and Littleton. Brac. l. 2. c. 33, 34. Lit. ib. In which this is lastly to be observed; That whatsoever is assigned to one in one place over and above their due, shall be re­compenced to the other in another place. Brac. c. 33. n. 8.

11. Those who hold joyntly, whether they be Joynt-tenants, or Tenants in Com­mon) cannot be forced by the common Law to make Partition; yet this is changed by an Act of Parliament: 31. H. 8. c. 1 32 H. 8. c. 32. wherefore at this day, if Partition be made amongst these, the same rules are to be observed, which we mentio­ned in case of Co-heirs. See this title Sect. 9.

12. Where either, or any of those, whose Fees or Villiages border upon each other, desire to make distinctions of their bounds, [Page 254] they may have a Writ directed to the She­riffe, that hee shall determine and bound their limits equally. By the assistance of a Jury of 12. men, the most discreet of the Vici­nage sworn for this purpose: F. n. b. fol. 134. which Partiti­on he shall certifie under his own Seal, & the Seales of foure Knights, who were present at the businesse at a certain day assigned. And if either be unwilling to have their bounds limited, as being the party who happily doth commit the Injury, the other may obtain a Writ directed to the Sheriffe, to require him to set equall bounds and limits. Terms of the law, v. per­ambulation. F. n. b. fol. 128.

13. Now whatsoever shall be adjudged by the Supream power, or the Justices upon such certificate to each, that shall immedi­ately become theirs to whom it is adjudg­ed. Lit. l. 3. c. 1

Of publique Judgements.
TIT. XVIII.

AS for those punishments which are in­flicted upon Malefactors, some extend to the losse of life, some of a Member, others of City, Burrough, or Province, some to perpetuall banishment, or for a time, some to the restraining the body, as by perpetual im­prisonment, or imprisonment for a time; some to beating, whipping, or the Pillory: Some also to the losse of Dignity and Or­der, or to a privation or prohibition of any thing. Brac. l. 3. tr. 1. c. 6. Flet. l. 1. c. 16.

[Page 255] 1. Amongst these, that is reckoned cheif, in regard of its Heinousnesse, Coo. l. 4. Beverleys case, 124. which wee call Treason. Now Treason Flet. l. 1. c. 21. is either High or Petite: High Treason is that which the Romans called Laesa majestas: and this [be­fore the alteration of our Government] was dierse wayes committed, as by killing, or imagining the Death of the King, the Queen, or their Sonne and Heir apparant: By ravi­shing Spec. Just. l. 1. c. del peche de majeste. the Wife, or eldest Daughter of the King [if she were unmarried] or the wife of the Kings Sonne and Heir apparant. By taking up Armes against the King within his Kingdome. Dyer, fol. 98. n. 56. By adhering unto, or bring­ing supplies unto the Kings Enemies. Coo. l. 4. fo. 57. by counterfeiting the Kings Great, or small Seale, or his Coine, or by bringing into the Kingdome wittingly, or putting away any counterfet Coine. By killing the Kings Chancellor, Treasurer, the Justices of ei­ther Bench, Justices Itenerary, or of Assize, or Justices of Oyer and Terminer, when they sit in Judgement, or are in pursuance of their duty. 25. E. 3. c. 2. And to these they added him who being beyond the Seas, stirred up o­thers to invade the Kingdome with an Ar­my. Dyer, fol. 298. n. 29. & f. 300. n. 38.

2. Furthermore, those who by force or feare did so restrain the Kings power, that he could not exercise his Kingly Authority, or enjoy his Prerogative, were by the opini­ons and Judgment of the Justices and other learned Lawyers, adiudged guilty of Trea­son. 21. R. 2. in certain questi­ons and answ. in that Parlia­ment.

[Page 256] 3. They were also deemed guilty of this crime, who counterfeited the Kings Seale Manuall, Signet, or private Seale: Or who did counterfeit, wash, or clip any For­reign Coine which was current in this King­dome. 5 Eliz. c. 11. & 14. Eliz. c. 3 18 Eliz. c. 1. 3 H. 5. c. 5. Flet. l. 1. c. 22. They who did either by writing, word, or Act assert the Authority or Jurisdi­ction of any Forreign P [...]ince, Prelate, or Estate, in Causes Spirituall within this Kingdome, or within any of the Kings Do­minions: 1 Eliz. c. 1. Those who denyed the Oath of Supremacy upon the second tender 5 Eliz. c. 1.

4. Those also were formerly included under this crime, who detained any Castle of this Kingdome, or any other of the Kings Realms forceably, any Tower, Fort, For­tresse, great Guns, or any Warlike Ammu­nition, and did not deliver them within sixe dayes after by Proclamation, being required. Those who did voluntarily burne any of the Kings Ships, or cause them to be burnt or destroyed: Or did obstruct any Port or Ha­ven belonging to his Dominions, or cause them to be obstructed or stopped; or did [...]bet, or counsel any other person offending in the premises. 14 Eliz. c. 1 Those who did endeavour to rescue or release any one w [...]o was commit­ted to custody, or prison, for Treason against the Kings person, after having been convi­cted; Or did divulge, or make publique such endeavour by word or deed. 14. Eliz. c. 2 But these dyed with Queen El [...]zabeth.

5. To these may be added those who did draw, intice, or perswade any of the Kings Subjects, or any persons within the Kings [Page 257] Dominions from their naturall Obedience to the King: Or from the Religion establish­ed: Or did absolve them by vertue, or un­der pretence of any Bull: And being absol­ved, did reconcile them to the Religion or Sea of Rome. Or those who being reconciled to the Sea aforesaid did promise Obedience to that, or any other power. 23 Eliz. c. 1. 13 Eliz. c. 2. Those also who being Subjects of these Realms, tooke upon them the Orders of Priests, Deacons; or Jesuites beyond the Seas, by authority de­rived from the Pope, or entred into any o­ther Religious Order, and returned into a­ny of the Kings Dominions: Or being Lay­men, and brought up in any of the Jesuites Colledges beyond the Seas, from the 5. year of Queen Elizabeth, did not return home by a day prefixed, and giving in their names to the Diocesan of the place where they li­ved, or to two Justices of the Peace, did not submit themselves to Her Maiesty, and take the Oath of Supremacy. 27 Eliz. c. 2.

6. He also is guilty of Treason, who fin­ding another falling into the crime, encou­rageth him, or assisteth him with help or Councell; Stan. Pleas, Crown, l. 1. c. 44. For in case of High Treason are principalls. Id. ib. yet see 23. Eliz. c. 1.

7. But hee that is only conscious and pri­ [...]y, not any wayes assisting the Traytors, hee is not guilty of High Treason, but on­ly of misprision of Treason, for concealing the Traytors. 1 & 2 Ph. & Mar. c. 10. 5 & 6 Ed. 6. c. 11. 1 Ed. 6. c. 12. 23 Eliz. c. 1. 1 Eliz. c. 6. Hee that privately coines monyes not current in this Kingdome, in­curs the penalty of Misprision of Treason, 14 Eliz. c. 3 which is also to be understood of those who [Page 258] did either release, or endeavour to release them that were committed for Treason a­gainst the person of the King, or for suspiti­on of such Treason, out of Prison or Custo­dy. 14 Eliz. c. 2. As also of those who take the Kings Great Seal affixed to Letters Patents, and affixe them to others. Terms of the Law, v. misprision.

8. He that is condemned of Treason, for­feits all which he hath, as well Lands [and those notwithstanding that they be entailed] 26 H. 8. c. 13. as Chattels and Rights Plow. 381 391. 33 H. 8. c. 20. to the Ex­chequer, and to the Supream Power for the most part. 18 Eliz. c. 1. 5 Eliz c. 1. And being laid upon a Sledg in straw, he is drawn by a Horse to the place of Execution: where, when he comes, he is hang'd up by the neck, and let down again to the ground alive: Then is his head cut off by the publique Executioner, his Privities b [...]ing first cut off, which together with his Entralls and Heart are cast into a Fire, and his Trunck cut into four parts. Flet. l. 1. c. 16. Yet in some cases, They are only drawn and hang'd untill they be dead. Dyer, fol. 230. n. 55. And so farre is the very memory of a Traytor condemned, that not only his Head, and the other parts of his Trunck are publiquely fixed upon stakes, untill they be devowred by Fowls, or rot and p [...]trifie. But even their Issue [if they have any] are in most cases despoiled of their No­bility, and deprived of all Priviledges and Prerogatives due unto their Father. Ful [...]. para. seigno [...]ies, fol. 26. 27. Plowd. 391. Now Women who are convict of Treason, are bound to a stake, and burned. Flet. l. 1. c. 22.

9. Misprision of Treason is punished with the confiscation of all their Chattels, the [Page 259] losse of the profits of all his Lands during life, and the Imprisonment of his body du­ring the pleasure of the Supream Power. Terms of the Law, v. misprision.

10. Petit Treason is, where any doth ma­liciously kill a Subiect, under whose power and subiection the party is, as a Wife her Husband, Dyer, 253. n. 103. & fol. 333. n. 25. a Religious person his Prelate, a Sonne his Father or Mother, according to the opinion of some, though others con­tradict it, Lam. 248. a Servant his Master or Mi­striffe. Id. 240. Cromp. 18. Plow. 260. Dyer, 128. n. 57 12 H. 7. c. 7. To these Antiqiuty hath added others, viz. not only those who killed their Kinsmen, but even those also, who did by any capitall deceit, plot any thing against their Estates, Members, or Honours. As also those Servants who committed any such crime against their Mastes: Or who lay with their Masters Wives, Daughters, or Concubines, or counterfeited their Seals. Flet. l. 1. c. 37. Spec. Just. l. 2. Now the punishment due to this crime, is, to be drawn from the Prison to the place of Execution, and there to be hanged by the neck untill they be dead; Cromp. Iust. fol. 18. Flet. l. 1. c. 37. but a woman is punished for this in the case of High Trea­son. Their goods also are forfeited to the Exchequer, and their Lands to the Lord of the Mannor, yet so as the King was wont to have a yeare and a day, and waste. Stanf. l. 1. 6. 2.

11. The residue of Capitall Crimes are comprehended under that one name of Fe­lony. Although Felony in a more large signification includes Treason, Lamb. l. 2. c. 7. Plow. 333. and is sometimes more strictly extended to Mur­der. Perk. 349. 22 H. 8. c. 14.

[Page 260] 12. Of Felonies, there are some which are against the Common-wealth, and some which are against private persons principal­ly, though by consequence they also are a­gainst the Common-wealth. O [...] the first sort are raising of Devils, Witch-craft, Conjuring, by which any one is killed: Or any other whatsoever after the first conviction, by meanes whereof the body of any party lies sick and languishing, and these formerly went under the name of Felony. 5 Eliz. c. 16. But at this day, those who use Invocations, Con­jurations, or raising of Devils: or who take counsell of Evill Spirits, make any bargain with them, or deale with them by way of Commerce: Or who do any way command, cherish, or reward them for any end or pur­pose. Those who dig up any dead body out of a Grave, or Dormitory, or who draws off the skinne or the bone of any dead body, to use them in Inchantments. Lastly, those who practice any manner of inchantment, charm, or sorcery, whereby any person shall be kil­led, destroyed, wasted, consumed, pined, or lamed, That such Offenders, their Aiders, Abettors, and Counsellors, shall suffer pains of Death as Felons, without benefit of Cler­gy. And it is further provided for the utter extirpation of such wicked Blasphemy; that whosoever shall take upon them by Witch­craft, Inchantment, Charm, or Sorcery, to tell or declare in what place any Treasure of Gold or Silver may be found, or lies hid: Or to provoke any person to unlawfull love: Or to destroy and waste any ones Cattell or [Page 261] Goods or to destroy or hurt any ones person, although the same be not effected or done, every such offender shall suffer a year Impri­sonment without Baile or Mainprise, and once in every quarter of the said year, shall in some market town stand openly upon the Pillory for the space of six houres, and there openly confesse their errour. But if being once convicted, they do again commit the offence, they shall suffer death without bene­fit of Clergy. 1. Jam. c. 12

13. And hither we may aptly refer, that So­domiticall sin with bruit beasts, 25. H. 8. c. 16 the enter­taining of Jesuits & Preists brought up in the Seminaries beyond the Sea, 27. Eliz. c. 2. the sefusing of Abjuration by Papists, and their return in­to England, after having abjured, 35. Eliz. c. 1. 2. the as­sembling of Rebells, 1. Mar. c. 12. which Statute is now expired the art of multiply­ing Gold or Silver, 5. H. 4. c. 4. the procuring or causing of Congregations of Masons to be assembled, 3, H. 6. c. 1. the departure of Souldiers, Mariners, ot Gunners from their Captaines, 18. H. 6. c. 19. 2. and. 3. E. 6. c. 2. 4. 5. the exportation of Horses into Scotland: 23. H 8. c. 16. 1. Eliz. c. 7. the conveying of sheep beyond the Sea, the second time, 8. Eliz. c. 3. the return of vagabonds into England having been banished, 39. Eliz. c. 4. the cheatings and robbings of those Vagabonds which call themselves Egyptians. 1. 2, Phil. and Mar. c. 4. 5. Eliz. c. 20. the idle wandring of Souldiers and Mariners, Ibid. the counterfeiting, or deceitfull using of Letters Testimonialls: Ib. 39. Eliz. c. 4. 17, the riding in Armes to commit a Felony, 25. Ed. 3. c. 2. the breaking or cutting of the bankes in Marshland, 2. and 3. Phil. and Mar. c. 19.

14. And like unto these seem those Felo­nies which spring from breaking of Prisons, [Page 262] as where one is imprisoned for Felony, or for suspition of Felony, and breaks [...]orth; as also where a Gaoler lets such a person forth freely which we call a voluntary escape: Or lastly, the assistance and help in a third person, which we call Rescous, Lamb. l. 2. c. 7. p. 224. 226. Dier, fo. 90. n. 60. fo. 165. n. 60. the making, bringing into the Kingdome, or selling that kinde of Mony which our Ancestors called Galley Halfe-pence, Su [...]kins, Dotkins, and Blanks, 3. H. 5. c. 1. the Imbecilling of a Record, 8. H. 6. c. 12. the violent oppressing the Subject by the Kings Purveiours or others, 4. E. 3. c. 3. 5. E. 3. c. 2, 25. 4. 3. c. 15. 36. E. 3. c. 2. and 4. 5. R. 2. c. 8 the compel­ling of any Prisoner by the Goaler, by duress of Imprisonment and pain to become an Ap­pellor against his will, 14. E. 3. c. 10. and thus much of the first sort of Felonies.

15. Felonies which do primarily and chief­ly concern private persons, are such as re­flect to the hurt and prejudice of the Body only, or the Body and Goods, or the Goods only. Lamb. l. 2. c. 7. fo. 218. Those which hurt the Body, are such which either take away life, or bring some o­ther enormous injury upon it, though not mortall; those which take away life, are com­prehended under the generall name of Ho­micide, Flet. l. 1. c. 23. but this hath diverse appellations and causes from the diverse Intents of the parties offending. For that which is commit­ted through malice prepensed, is called mur­der, Plow. 474. Glan. l. 11. c. 3. [...]rac. l. 3. tr. 2. c. 4, n. 2. Dier, [...] 69. n. 28. & [...]9. fo. 186. n. 3 and is punished with death. And we are to take notice here, of the ancient cu­stome which our Ancestors used, that he who committed Murder was hanged up alive by his whole Body upon a Gibber, and was not upon any condition to be let down untill he [Page 263] died through Hunger, but I read nothing of this: and if there were any such custome it is long time changed: For at this day they, as other Felons, are strangled with a Halter, and in this only they differ from other Fe­lons, that their Bodyes are hanged up on high in some publick Roade, neer the place where the fact was committed, as an obiect to those which passe by, and are not to be re­moved until they be consumed. Now there are others who shew more at large how and by what wayes murder may be committed. Stan. Pleas Crow. l. 1. c. 10. Lamb. l. 2. c. 7. fo. 230.

16. And it is murder also where any one kills himselfe. For such a person is called, Fe­lo de se: In which case Christian Buriall is. forbidden and all the parties Go ds and Chattells are forfeited to the supream power, to be disposed of to pious uses, Brac. l. 3. tr. 1 c. 31. P [...]ow. fo. 253. yet some there are, who distinguish, whether the par­ty laid violent hands upon himself through fear of Judgment, or being weary of his life, or through the violence of some disease: For in the first case, as other Felons, he looseth both his Land and Chattels, in the second, his Chattells only, and in the third he for­feiteth nothing. Flet. l. 1. c. 36

17. That which is committed through sudden passion & Anger, is called simple, Glan. l. 14. c. 3. Homicide or man-slaughter, and it is punish­able with death also; yet such is the commi­seration of humane weaknesse with us, or the pious instigation to learning, that he, who is convict of this Crime the first time, if he can read perfectly, and distinctly, as a Clarke [Page 264] ought to do, is freed from death, and (his lands and goods being forfeited) is only burnt in the hand; by which means he may be known if he commit the like crime again, and com­mitting it the second time, he is to dy with­out mercy, 18. Eliz, [...], 7: but so great hath been the bloody wickednesse of these times, that this Law hath been somewhat more exasperated. For now by an Act of Parliament in K. James his time it is decreed, that he who stabs ano­ther who hath never a Weapon drawn, or who doth not provoke him by stricking first, shall loose the benefit of Clergy, although there do no precedent malice appear, if the party dy within six Months, unlesse it be done in his own defence, or for the necessary con­servation of the publick place, 1. Ja. c. 8. now this favour of Clergy is not only granted to these, but even to all other Felons, unlesse where it is denied by some particuler Act of Parlia­ment, 23. H. 8. c. 1. 25. H. 8. c, 3, 26, H. 8. c. 12. the other kindes of Homicide are not accounted Felony. Lamb. l. 2. c. 7. fo. 248.

18. For every Homicide which is without malice is either necessary or casuall, West, Simbol, part. 2. fo: 48 49: that which is necessary is likewise double, one which cannot be declined without prejudice to publick Justice, the other which cannot be avoyded without the death of the innocent, an example of the first sort may be given in the case of killing a Robber or Theife, who can­not otherwise be apprehended, and of the la­ter, in case where one kills another in his own defence, the former is free from all manner of punishment, Stanf, l, 1, c, 5, the later not simply, for it is materiall, that the party who is slain [Page 265] set upon the party that kills him in his own House, or neer the Ordinary high-way, with a malicious intention to kill or rob him, or in case that he be moved with sudden passi­on, and pursues the party defending himself with an intention to fight with him, so far un­till he can fly no further, for in the one case he kills him without incurring any punish­ment at all, 11, E: 1, 1, Mar, c, 12, Stan, l, 1, c, 6, 7 but in the other case, he loseth his Goods, 6 E, 1, c, 9: nor is he received and taken into grace without the expresse pleasure and Indulgency of the supream power, (which notwithstanding is granted and obtained of course.)

19. Casuall Homicide is double likewise, one which is meerly through mis-fortune, the other which is mixed also with some fault in the party who kills the other. That often happens in the Lawfull prosecution of a law­full Act, and often from a bruit or an inani­mate thing. Of the first kinde, is, where any one is killed, with the fall of an Arme or Lopp of a Tree, or a Tile from a House, after warning given by the parties who are either lopping or tiling, West: Simbol: part, 2: Sec: 50, tit, Indictments to which also may be added, that which may happen in Justs and Tournements, in regard the parties who are there in Action are supposed to be ma­king trialls of their strength in the way of freindship. And therefore K. Henry the se­cond ordained, that those should be pardoned thereby giving them to understand how much they were obliged to perform for the Kings sake when required. Spec, Justic, l: 1: c: Del Office, del Coroner: Of the second fort is, where any are suddenly drowned in [Page 266] falling from a Ship, Boat, or Bridge, or slain with a Cart, Mill, or the like. In whch Ca­ses we have before related what our Law de­termines. Fleta. l. 1. c. 25.

20. Homicide, which is mixt with some fault of the party who kills the other, and yet is casuall or accidentall, is, where one that is lopping of a Tree, or tiling of an house, happens to kill another with a Lop or Tile, not having given any warning, Stanf. Pleas Crown. l. 1. c. 8. of which kind others draw many examples. Flet. l. 1. c. 31. 26 H. 8. c. 16. 5 Eliz. c. 17.

21. Felonies which are committed upon the Body, and yet deprive it not of life, is where any one out of malice cuts out the tongue, either of a man or beast, or puls out the eyes of any Subject, 25 H. 8. c. 6. 5 Eliz. c. 17. or commits the horrible and abominable sin of Sodomy with a man, Fleta l. 1. c. 37. (but those who commited any kind of Sodomy were used to be buried alive in the Earth 3 H. 7. c. 2. Lamb. l. 2. c. 7. (or having stoln away a Wi­dow, Wife, or Virgin, who hath an Estate in Lands or Tenements, or who hath goods, or Chattells, or who is Heir apparent to her Ancestor, and marries her being so stollen away against her will, or commits a Rape up­on her; or he who assists Lamb. ib. 18 Eliz. c. 7. any one in the committing of such crime. He also where any one hath the ca [...]nall knowledge of any woman who is under the age of ten years old whether it be with her Will and consent or without: 12. H. 4. c. 13. Stanf. l. 1. c. 14. Glan. l. 14 c. 6. or lastly, where any one com­mits a Rape upon any woman whatsoever; to these we may also adde him who marries a second Wife in the life time of his first. 1 Jac. c. 11 Now that Felony seems to be of a mixt na­ture [Page 267] which is committed by him, who ha­ving any deadly infectious disease by reason of which he is prohibited by the Law to go out of his house, doth notwithanding go a­abroad, and trade, and converse with o­thers. 1 Jac. c. 21

22. Felonies which are committed both a­gainst body and Goods, are Piracies, Burg­laries, Robberies of houses, or Castles, Bur­ning of Houses, and Robbery. Now by Pi­racies we do not onely mean Piraticall rob­bing upon the Sea, but all manner of Fe­lonies upon the Sea, or within the Jurisdi­ction of the High Court of Admiralty. Bur­glary is a violent and forcible breaking into 27 H. 8. c. 4 28 H. 8. c. 5. a House, either private or Sacred, (as into a Church) in the night time, with an inten­tion to kill, steal, or commit any Felony within the said place; West. Sym­bol. Par. 2. tit. Indictments. Sec. 56. Dier f. 99. n. 58. but how far this is extended we are to inquipe of o­thers. Stanf l. 1. c. 24. Lamb. fol. 254. Fulb. fo. 104. Coo. l. 4. Cases of Ap. peals, f. 40.

23. Now that which we of our Nation call House-robbing, I do not find eypressed by our Civilians, but it signifieth a breaking, or entring into anothers house or dwelling place in the day time, and a taking away of Goods, whilst there is some Body present in the House. 5 E. 6. c. 9. 39 Eliz. c. 15. Lamb. fo. 260. Flet. l. 1. c. 37.

24. House-burning doth not onely ex­tend to Houses and Barnes wherein Corn is laid up; but also to those heaps which we call Mowes, Stacks, or Reeks, if they be near unto Houses, and burnt though ma­lice. Lamb. l. 2. c 7. fo. 269. 270 Fulb. fo. 109.

25. Robbery is the taking away of goods [Page 268] from any ones person, or o [...] least the person who is owner of them, being present and not assenting. Now this is sometimes violent, and accompanied with terror, as when any man is robbed by theives on the high way, by which his life is in danger: Dier 224. n. 3. and sometimes secret and Clandestine, as when a mans Purse is cut or stoln away against his privity, having in it twelve pence in monies: Lamb. fo. 262, 263, 264, 265, 266. some also affirm it to be Robbery where a mans Wife is taken or inticed away with her Husbands Goods. Fleta l. 1. c. 39.

26. Amongst those Felonies which relate to Goods onely, that methinks deserves to be reckoned first, which we call forging of Deeds, being committed the second time, for he who having been once convict of this crime, and is again found guilty, either of malicious forging, or causing and procuring others to forge Deeds, or knowingly to al­ledge or plead them in Judgement, whereby any one is prejudiced, or hurt in his Title to Lands or Goods, is declared guilty of Fe­lony, this being Felony by the Statute. 5 Eliz. c. 14

27. That which is Felony by the Common Law, and relates to the Goods onely, is term­ed Larceny, and is a fraudulent taking away of Goods moveable or personall, in the ab­sence and against the will of the owner, Lamb. 262 west. part. 4. tit. Indi [...]tments Sec. 61. of which those Servants are as much guilty, who take away the Goods of their Masters who are dead, from the Executors, and are not reclaimed or drawn to restore them after Proclamation made, 33 H. 6. c. 1. as those who carry away Goods committed to their Custody by [Page 269] their masters to the value of forty Shillings, unlesse they be under the age of eighteen years. 21 H. 8. c. 7 5 Dliz. c, 10. 27 H. 8. c. 17. 28 H. 8. c. 4.

28. But Larceny is either Grand or petty; Grand is where the Goods stoln exceed the value of twelve pence, Petit, where they a­mount not to that value, and therefore this is not by some called a Felony. Lamb. 267. Fulb. 101. Flet. l. 1. c. 38. The former is Capitall; the latter punishable, onely by whipping and imprisonment.

29. By what wayes, and how Larceny is com­mitted were materiall to understand, where­fore know that under those Goods, by the ta­king of which Larceny is committed, are comprehended, monies numbred, Vessells of Silver, Garments and Cloaths, meat, (unlesse where the Party that takes it, doth it through necessity, either to save his own life, or his Neighbours) all sorts of Grain, Hay, fruit, separated from the ground, Horses, or Mares of any age, Oxen, Cows, Sheep, Lambs, Hogs, Pigs, Hens, Ducks, Pea­cocks, Turkies, or other tame fowls: and some things also which are wild, as young Pigeons which are in a Dove-house, and can­not as yet fly, Hawks from their nests, and Fishes from a Pool, or other place which is made to keep them in. Lamb. 269▪ 170. Stan. l. 1. c. 15, 16.

30. Nor is he onely guilty of Felony who takes a Deere which he knows to be tame, but he also who takes Deere or Conies out of a Park or Warren in the night, or he who hunts them either disguised or armed, if being apprehended and examined, he denic the Fact. Lamb. fo. 271. Lastly, he who shears [Page 270] Wooll from the backs of Sheep, or flaies off the skinnes, leaving their carcasses behind them, Id. 299. or takes Apples or any other fruit separated from the Trees, or takes a Tree, which either himself or another cut down from the Owner, with an intention to steal it, is guilty of Felony. Id. 273.

31. A man may also commit Felony & theft upon that which is his own; as where I lend Vessells of Gold, &c. to another, and frau­dulently steal them from him again, Lamb. l. 2. c. 7. fo. 280. Stanf. l. 1. c. 17. Fleta l. 1. c. 17. or if I receive my own Goods which were stoln, without the Authority of the Magistrate, Flet. l. 1 c. 27. and being bribed, forbear to prosecute. Id. [...]b.

32. In Felony, Lamb. l. 1. c. 43. Plow. fo. 475. there are also some­times some besides the principalls whom we call accessories, no lesse guilty of Felony then the principalls, and those not onely by the Common Law, but by the Statutes also. Stanf. l. 1. c. 47. Now there is a double kind of accessory, one before the Fact, the other after accessory. Before the fact is, where any one commands or incites another to commit a Felonious Act, which he doth afterwards perform: and this albeit, that the party who so incites be not present at the Fact committed, Spec. Justic. l. 1. c. del Office del Coroner, where he makes nine sorts of acces­sories. and the circumstances which in this Case render a Principall or an Accessory onely, Our Law­yers do with a great deal of Art and Judge­ment demonstrate. Stanf. l 1. c. 43. Dier fol. 108 n. 57. Accessory after the Fact, is, where any one wittingly, or igno­rantly Dier fo. 355 n. 36. receives, cherisheth, assisteth, and comforteth a Felon; Stanf. l. 1. c. 46. or who receives stoln goods to keep them, or to dispose of them, together with the Theife. Fulb. par. Theft, fo. 202. Lamb. fo. 295. But a Wife [Page 271] who in this case conceales the secret of her Hushand is exculable through the necessity of her Duty, Stanf. l. 1. c. 46. which is also true, in case shee commit the Fact upon his command. Id. ib. c. 19. And there are also Accessories of Acces­sories, as where any one doth wittingly re­ceive the Accessory of an Accessory. Id. ib.

33. The punishment due to Felons both principalls as Accessories, is to hang by the neck untill they dye, and to forfeit their Goods and Lands, if they have any: 24 H. 8. c. 45 Coo. l. 4. Bever­leys case, 124. Only here is the difference; That the Acces­sory cannot be punished before the Princi­pall be convict and Attaint. Stanf. l. 1. c. 43. Plow. 97. Dye [...], fol. 120. n. 10. Now the Lands escheat to the Lord of the Mannor, who notwithstanding was formerly compel­led to expect, untill the King had received his yeare and his day, and waste, unlesse the King himselfe [...]ere Lord. Stanf. l. 3. c. 3. Flet. l. 1. c. 28. Moreover the Issue of Felons is so infected, that they are excluded from all hope or possibility of succeeding in the Inheritances of their An­cestors, which otherwise should have de­scended to them, unlesse there be any thing more favourably enacted in case of any par­ticular crime, contrary to the common and ordinary forme. 1 Mar. c. 14 1 Jam. c. 11, 12.

34. But these things which wee have spo­ken concerning the punishments of Treasons and Felonies, must have their distinctions, & therefore it were requisite to explain them Now the way of impeaching any of these crimes is double; one by Appeal, Stanf. l. 2. c. 52, 53, 54, 55, 56, 57, 58, 59. the other [Page 272] by Indictment at the suite of the Supream Power. Id. c. 59. If they proceed by way of Ap­peale, and that it be an Accuser, who takes upon him the proofe of the crime, it is at the election of the Defendant (unlesse hee will confesse the fact) to wage his Battaile with the Appellor, or to be tryed by his Country. Or (in case he were a Peer of the Realm) to be tryed by a Verdict of his Peers, or Pares. Id. l. 3. c. 1. Flet. 1. c. 21. 31, 32. But if he be indicted, he is left solely to the tryall of his Country, or Peers. And if in either case he be convict, he is punished with Death.

35. But it sometimes happens that the party accused through contumacy, refuseth to be tryed either way, but either stands mute, or pleads not so: As by his answer Issue may be joyned to come to Tryall. In which cases, if it be by Appeale, he is imme­diately adjudged to dye. Dyer, 441. n. 49. If by Indict­ment, then is it taken Pro Confesso, in case of Treason. And in cases of Felony, he shall be impressed, viz he shall be committed to the Prison from whence hee was brought, where he shall be carryed into some low dark place, and being stripped naked, he shall be laid upon the bare ground, his Pud [...]nd [...]e on­ly covered, and his Arms and Legs pulled out by four ropes, fastned to the four corners of the room, hee shall be stretched out upon his back: Then being bound in this manner, hee shall have so great a weight of Iron or Stone laid upon his Breast as hee is able to beare, without confusion. The day following [Page 273] he shall have 3. crusts of barly bread without drink; next day to that he shall have three draughts of the water next to the Prison, (povided it be not running water) but with­out Bread: And so by turns he shall be fed with bread or water every day untill hee dye through the extremities of weight, hunger, and cold. Flet. l. 1. c. 32. Stanf. l. 2. c. 60. Dyer. 241. n. 49.

36. Now a Woman who is condemned for any the aforesaid Crimes, if she be with Child, hath the Execution of Judgment de­ferr'd untill shee be delivered of her In­fant. Flet. l. 1. c. 38.

37. There is also a misprision of Felony; As in case any one knowes another to have committed Felony, and doth not discover it unto the Supream Power, or to a Magistrate. Termes of the Law, v. misprision, Cromp. fol. 39. Now the punishment for this crime, is, That the party shall be committed to prison, untill hee have put in Security for the pay­ment of such a Fine as the Judges shall im­pose upon him before whom he is convened. Id. ib. And it is to be observed; That in all Treasons and Felonies, there is a misprision of Treason or Felony comprehended. And therefore it is in the power of the Supreame Power (if in its clemency it thinks good so to doe) to suppose him guilty of misprision only, who really is guilty of a greater crime. Id. ib.

38. Next to these which are capitall, are those crimes which used to be punished with [Page 274] perpetuall Exile and Banishment: As those persons, who having committed Treason or Felony, and taken Sanctuary, were accu­stomed, having confest their crime before the Coroner, to abjure the Realm, and thereby avoid a greater punishment; Stanf. l. 2. c. 38, 39. Terms of the Law, v. Abiuration. but this is long since altered. 21 H. 8. c. 2. 22 H. 8. cap. 14. 33 H. c. 12. And indeed there are few Facts at this day subject to this, and many even of those are not so high: as he who kills Deere, and cannot finde security to put in for the payment of the Fine imposed, is compelled to abjure the Common-wealth, Charta de Forest. c. 10. Dier, fol. 238. n. 34. which also hee is bound to doe who marries a Woman-Heir, having stollen her out of the custody of her Guardian, and is not able to satisfie for the value of her Marriage. 13 E. 1 c. 45. So also hee who accepts of a Benefice, being elected by the Pope, 13. R. 2. Stat. 2. c. 2. And lastly, a Papist who refuseth to come to Church according to Act of Par­liament. 35 Eliz. c. 1.

39. Our Statutes also inflict a great pe­nalty upon those who sue or implead any one in a Forreign Realm, when the Action be­longs properly to the Cognisance of our Courts, or where Judgement hath in the same case been given by the Justices here. As likewise upon those, who by prosecuting a Plaint in another Court, endeavour to re­tard or impeach Judgment given in the Su­pream Courts of our Supream Power. For such Offenders being summoned by distresse, either upon the Lands in question, or upon [Page 275] any other of their Lands, to be made by the Sheriffe to appeare personally in the Chancery, or in either Bench, or before Justices particularly for that purpose deputed to answer such contempt if they appeare not. Then are they, their Procurators, Attor­neys, Executors, Notaries, and Sum­moners deprived of protection, their Lands, Goods, and Chattels forfeited to the Su­pream Power, and their Bodies wheresoe­ver found and taken, kept in Prison untill they have paid a Fine to be imposed upon them at the will and pleasure of the Su­preame Power. 27 E. 3. c. 1. Bro. tit. Prae­manire. 10.

40. Those also are lyable to this, who seeke for any presentations to Churches, Prebendaries, or other Ecclesiasticall Be­nefices from Rome: Or who seeke and ob­taine any Processe concerning the premi­ses, any Excommucations, Bulls, or o­ther Instruments from thence. Nor they only, but their Procurers, Executors, No­taries, Summoners, Promoters, and As­sisters. 13 R. 2. c. 2. So also those who procure any Provisions from the Pope, by which they become absolved from their Obedience, or obtaine any Office in any Religious House, &c. 2 H. 4. c. 3. As Arch-bishops, Bishops, Abbors, who paid a greater summe then usuall to the Pope for their Benefices, 6 H. 4. c. 1. toge­ther with those Rectors and Vicars under the Jurisdiction of the Arch-Deacon of Richmond, who impose too great exactions upon the Subject. 26 H. 8.

[Page 276] 41. To which wee may adde, those who defend or promote any Authority or Jurisdiction of the Pope (which hee shall claime in ENGLAND) either by word, writing, or Act: Or those who shall as­sist, help, or comfort any manner of way any person or persons who shall defend or promote the same. 5 Eliz. c. 1. 28 H. 8. c. 10. 1 Eliz. c. 1. Those who en­tertaine or assist any who shall bring any Bulls, Writings, or Instruments of Ab­solution or Reconciliation from the Sea of ROME, or from any person exerci­sing the Authority of the said Sea: Or who shall under such colour absolve or reconcile any person, or who shall accept of any such Absolution. Lastly, those who shall bring over from the Pope or See of ROME, or from any one clai­ming his Authority, any Agnus Dei, Crosses, Pictures, Beads, &c. and shall deliver them to any Subject here, or pro­cure them to be delivered or offered, to the end that they should make use of them. And those also who shall receive any such thing being offered, and not apprehend the person offering them, or not deliver him to the Ordinary, or some Justice of Peace within three days, together with the thing so received. 13 Eliz. c. 2.

42. They also come under the same notion, who being compellable, refuse the Oath of Supremacy, being lawfully tende­red. 1 Eliz. c. 1. 5 Eliz. c. 1. Or who doe directly, or indi­rectly [Page 277] give any money, or sustenance, or any other thing to any Jusuite or Priest remaining in any Seminary, or to any other Priest, Deacon, Religious, or Ec­clesiasticall person, or to the maintenance of any of their Seminaries or Colledges be­yond the Seas. 27 Eliz. c. 2.

43. And lastly, Those who take or procure for Usurers by way of Usury, though under the notion of any Sale or Contract, above a tenth per annum. 19 Eliz. c. 8. But some of our Lawyers through gaine or ambition, have too violently extend­ed this strict punishment, by stretching the words of one Statute 16 R. 2. c. 5. which are meant in the generality, to every light offence of Judges [especially Ecclesiasticall] Cromp. fo. 52 to whom I shall only say: That that Candor of some were to be desired, and that Ignorance of others lamented, which a very learned Man did lately most ac­curately perswade and refute. Cosmus, part 3. c. 7 fol. 85.

44. Those Crimes which are punished with the losse of Protection are not to bee esteemed light. Now they incur this, who being five times lawfully summoned in a full County, doe not give their appea­rance to a personall Action or an Indict­ment, 13 E. 1. c. 35 31 Eliz. cap. 3. for they are pronounced Ut­lawed: And if it be a civill Action, they forfeit all their Goods and Chattels, with the profits naturally arising from their [Page 278] Lands. Bro. forfei­tures, 30. And if it be criminall, then they forfeit all their Lands and Tenements also to the publique Exchequer for ever, Terms of the Law, v. Utlawry. and are ipso facto, deprived of the bene­fit of all Lawes, and of the priviledges of Subiects, so that according to the An­cients any one might kill them unpuni­shed. Brac. l. 3. tr. 2. c. 11. But this Law being altered, 5 Eliz. c. 1. they are now referred to a pecuniary Fine. Those also are liable to this pu­nishment, who remove, or throw down the Sea-marks, by which Marriners are secured from wandring, and directed to their Port, if the Offenders be not worth a hundred pound, whereby they may with moneyes satisfie for their oftence. 8 Eliz. c. 13.

45. Periury committed by any person who was of a Jury in any Court, was so odious to our Ancestors, that it was de­creed, that all such Offenders should have their Medowes and Gardens digged up, their Houses pull'd downe, their Woods extirpated and grub'd up, and all their Lands confiscate. Termes, v. Altaint. And moreover (ac­cording to some) they were io be com­mitted to Prison, and for ever rendered so infamous, that they were deprived of the benefit of the Lawes, and their Te­stimonies never to be admitted in any Cause. Fleta:

46. Those who committed periury in any Court were fined twenty pound, and [Page 279] suffered sixe moneths imprisonment with­out Baile or Maine prize, and made in­capable for ever after of bearing Witness in any Court of Record.

And if any person did procure or suborn another to commit periury in any Court, hee is to be fined forty pound: And if hee have not so much in Goods and Chattells, he is then to suffer six months imprisonment without Bale, and to stand in the Pillory in the same Towne, or in some other in open Market for the space of an houre, and furthermore is made uncapable for ever of bearing Witnesse in any Court of Record. 5 Eliz. c. 9 But periury was wont frequently to be punished with en extraordinary Censure in that Honou­rable Assembly of Peeres in the Starr-Chamber. Dyer, fol. 242. n. 53.

47. Next to this are those Crimes which were punished with dis-membring, or Mutilation of the Body: As the cutting off the hand 33 H. 8. 6. 12. of him who presumed to strike another within the Verge of the Court of the Supreame Power. The losse of his Eare, who maliciously struck ano­ther with a Weapon in a Church or Church-yard, or who presumed to draw a Weapon for that end. 5 E. 6. c. 4. And if the person so offending happened to want his Eares, then was hee bu [...]nt with a hot I­ron in the Cheeke. But this punishment was sometimes joyned with another; for [Page 280] those who did either bring, send, or receive, or procure others to bring, send, or receive any Sheepe or Lambs alive into a Shippe, to con­veigh them beyond the Seas, had their Goods confiscate, and lost also their left Hands for the first Offence. 5 Eliz. c. 3. And sometimes this Punishment was inflicted for want of Goods, and Chattells to satisfie a Pecuniary Mulct. As those, Butchers, Brewers, Bakers, Poulterers, Cooks, Coster-mongers, or Fruiterers, who conspire not to sell their Victualls, but at a certaine Rate agreed amongst themselves, or oblige themselves to it by Oath or Promise made amongst themselves, and have not forty pounds to pay for such Offence, they are to be punished with the losse of one Eare, and are for ever rendered infamous in the Eye of the Law, to which Punish­ment those Mechanicks, and Labourers are Subiect, who agree amongst them­selves not to sell their Wares, but at such a Rate which they set amongst them­selves, or not to worke, but at appoint­ed times, or not to exceeed so much work in a Day, or not to finish a Work which another hath begun. (u) ( [...]) 2 E. c. 15.

Now, those who disperse false Rumours a­gainst Peeres, either by word or writing, to their prejudice, may in some sort be recko­ned [Page 281] amongst private offenders, for that they may be committed to Prison, untill they pro­duce those whom they pretend to be the first Authors of such Rumours, nor shall they scape publick Justice. But without doubt, those who maliciously do commit any such of­fence against the Supream Power, are to be punished by the Magistrate. See the Statutes cited l. 3. title injur.

49. Now of this rank also are those, who malitiously forge, or cause and procure o­thers to forge any Instrument or Writing to overthrow oh call in question any ones Free-hold or Inheritance, or to subvert any ones Right to a Fee or Copy-hold: or do wittingly plead or produce in Triall any such Instrument to any such end, for such of­fendors shall forfeit treble Damages and Costs totthe Party grieved, and shall be ad­judged to have an ear cut off, standing in the Pillory, as also to have their noses slit, and to be stigmatized as an eternall mark of such falshood and Villany: and lastly they shall forfeit the Revenues of their Lands for life, and suffer Imprisonment for ever: but they who forge, or procure any one to forge any such Deed, orplead ill to overthrow or question the Right which another hath to Lands for Term of life, or an Annuity, or who forge, or cause othets to forge any Obligati­on, Acquittance, or a Release, or any o­ther such like personall writing, out of ma­lice, shall pay to the party grieved double Costs and Damages, and shall also stand in [Page 282] the Pllory, loose one Ear, and suffer a years imprisonment without Bail or main­prise. 5 Eliz. c. 14. Dier, 288. n. 52. 322. n. 26 next to which are those who cheat any one of money, by forged, and counterfeit Writings, the punishment of which is arbitrary: as are also many other offences, which many of our Authors men­tion. 33. H. 8. c. 1.

50. Nor can I here omit those Assem­blies against the publick Peace, which are called Routs, Riots, and unlawfull Assem­blies: but as for the Differences, Definiti­ons, and Distinctions of them, shall, (for brevities sake) refer you to others. Dier, fo. 188 n. 10.

51. To which I may adde the Extortions of under-Sheristes, and their Officers. Now Extortion is defined to be an unlawfull exacting of money which any one shall do or practise under colour of his Of­fice, Lamb. l. 2. c. 5. fo. 179. Crompton fo. 53 8 H. 6. c. 9. and this is sundry wayes punished according to the quality of the of­fence. Lamb. ib. c. 4. f. 414. Cromp. fo. 48.

52. Those maintenances also, which are used for the impeding of Iudgement, are to be accounted in the number of publick Crimes, for Maintainers and Barretors From the French word Barateur. who are Common fomentors of Suits, and Champarters, F. n. b. 171, 172. who prosecute other mens Suits at their own Charges upon an A­greement for the thing in Action, and all unlawfull desenders of personall Actions [Page 283] (such as Imbraceors) Id. 171. A, B, C. have punishment or dained for their offences. Lamb. 4. 24. Cromp. 82. and 155. Flet. l. 2. c. 36. Dier 95. n. 39. & fo. 52. n. 6. 33. H. 8. c. 9.

53. To which pack of Knaves, we may adde Adulteries, 32 H. 8. c. 10. 18 Eliz. c. 3. 27 Eliz. c. 11. Dier, fol. 106. n. 22. who formerly were for the most part purged by Canonicall Penance: [but this Crime is by a late Act of this pre­sent Parliament deservedly made Felony.] Usurers, 32 H. 8. c. 10. 18 Eliz. c. 3. 27 Eliz. c. 11. Dier ib. n. 22. although these also if they ex­acted above ten pounds per Centum, per An­num, were subject to Ecclesiasticall Cen­su [...]es, 13 Eliz. c. 8 Monopolizers, who were called Ingro [...]ers, Fore-stallers, and Regrators, 5 Ed. 6. c. 14 & 15. 4 & 5 Ed. 6. c. 21. Lamb. l. 2. c. 4. fo. 432. Cromp. fol. 69. and many others who are punishable by Imprisonment and the Pillory, and some who are punishable also with many of the aforesaid punishments ioyned together: but so great an Enumeration would not rightly, or aptly correspond with the Brevi­ty, which is required in the nature of In­stitutes or Institutions, wherefore I shall leave them to the more large Discussions of others, and shall onely make it my Prayer, that since these Labours of ours are by Gods Mercy finished, they may prove usefull, and gratefull to those, for whose Leasures and vacant Houres, we in­tended this as a Recreation.

FINIS.

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Text Creation Partnership. Searching, reading, printing, or downloading EEBO-TCP texts is reserved for the authorized users of these project partner institutions. Permission must be granted for subsequent distribution, in print or electronically, of this EEBO-TCP Phase II text, in whole or in part.