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Haitt iBSrtrammar»

OB

RUDIMENTS OF THE LAW.

By GILES JACOB,

AUTHOR OF THE LAW DICTIONARY.

GREATLY ENLARGED AND CAREFULLY REVI

BY

JOHN HARGRAVE, ESQ.

OF THE INNER TEMPLE.

LONDON :
WILLIAM CROFTS, 19, CHANCERY LANE.

1840.

ADVERTISEMENT

TO

THE EIGHTH EDITION.

A WORK which has passed through seven large
editions requires but few introductory remarks on
the part of an editor, its utility being already suffi-
ciently attested by the extent of its sale, and the
still continuing demands of the profession.

Since the last edition was published, most im-
portant alterations have taken place as well in the
criminal law as also in that relating to real property ;
this circumstance has rendered it necessary to
introduce much new matter into the following
pages, and to leave out such of the old statute law
as has been repealed or altered ; but in doing so
the editor has carefully avoided an interference

IV ADYEBTISBMBMT.

with, those branches of leamiiig which being now
altered by modem enactment still require to be
understood by the student; such as the law relating
to Fines and Recoveries.

Another alteration in the original text has also
been made^ and which it is believed will be of
great utility^ viz. the arrangement under proper
chapters^ of the various divisions of the law.

But although the present edition has been en^*
larged^ and modem law and modern cases have
been necessarily inserted, burthensome statements
of legal doctrines have been avoided, elementary
points have been adopted in their stead, and the
technicalities of profound arguments left for other
and distinct treatises; the object of the editor has
been to prepare a correct epitome of the existing
law, and in such a form as will most benefit the
younger branches of the profession.

An experience of many years in the profession,
enables the editor most fully to appreciate and

tt

if

abybrtisbmeht. t

enter into the sentiments of a very eminent Con-
veyancer and commentator on the law of Real
Property, when he says that '^ any work which is
" calculated to abridge the labonr of the student,
'' by bringing the points together under each head
into one view, and under an arrangement ena-
bling him to find that of which he is in search
^' with the least possible delay, is of more value
than can be conceived by any but those whose
practical experience has taught them its import-
ance.'* — See Preston, Abst of Tit. vol. i. p. 216,

J. H.

Temple, 1840.

U

a3

PREFACE

TO

THE FIRST EDITION.

The great (Hracle of the law, Sir Edward Coke, has
observed, " that there is do learning so excellent for
all sorts and degrees of people, as the knowledge of the
common law of England ; and though in the study of
it, at the beginning it seems difficult, yet when a person
dives to the depth thereof, it is greatly delightful ; and
he which reaches deepest sees the admirable secrets of
our law."

The famous Chancellor Fortescne, in his learned
treatise De Laudibus Legum AngUa, likewise observes,
" that the Latin words ^tf« and lex intend the law under
the consideration of sl science; wherefore, he say9, after
you have made some progress in common grammar, it
will be necessary and sufficient to use the same method
and proportion in the study of the law : and as etymo-
logy f oftkograiphy^ promdy^ and syntax, are the springs
and fountains of grammatical learning, so theprtndp^^,

eauiet, and eltmenU, are the foundation of kanung m
tht Ian."

On considering what has been to wiaely observed by
two such most learned, excellent, and worthy peraoost
I have very great encouragement; to which I add, that
as among the liberal sciences the art of g
always the precedency, it being jattua o
the portal by which we enter into the knowledge of
all arts, and whereby we communicate ourselves and
studies to others; it is from all these consideratioas
that T have at length, though late, now attempted a
Gramwar of the Lam, contained in the several diadoct
heads or chapters, o{ DefmiHim*, Grovndt and Priiieipiet,
Maxitu tad General Rules, Afoot PhmK or Coset, Wordt
of Art, md Temt, See.

Under this division of Titlet b here ocMn|Hised a
gOKral knomUdge of our whole lam, in a brief apitomt;
and the hett wuthed of instruction : and, I ihink, there
is DO room to questiou that in great tehoolt, and parti-
cularly at coUeget in the ttmoeriitiet, before the diligent
scholars leave those academies, some cho«en ^esteiu or
tentence* got by heart from this Lam Grammtar, and
daily repeated with tbeir other learning, would be a
gjtigiilw benefit and advantage to them; not only in
their future eoinenatum with others, but also in pre-
serving tbeir own ettatet <md forhmee, and £m» and
tibertiet, and by keeping them omt of dattger, especi^y
the greatest, that of offending the law.

PftEFACS. IX

To (Jbat good end and purpose, I have been fuller in
treating of all the crown laws relating to qffencet^ than
on any other laws or statutes, being very sensible they
most concern mankind in general, and preserve and
estaUtsh the feace of the kingdom; without which
provisions there are many persons in the world, who,
like fierce and savage wolves, would prey upon and
devour one another.

But in this extensive law branch, and indeed every
where else, my discourse I have generally confined to
short periods^ having divided all long sentences, the
more effectually to impress things on the memory^ and
there to retain them ; and likewise to make the matter
of the greatest importance appear the most conspicuous
and remarkable^ by separating it from the rest ; which
new method of handling our laws I think is in some
sort academical.

Further, I have here inserted a great number of the
choicest Latin Maxims of the law, beyond what other-
wise I should have done, but with a design to please,
as well as instruct all youth at our Universities, or Inns
of court, and young gentlemen in their private educa-
tion; also, sometimes, I have made small philosophical
and other digressions, for their better improvement and
entertainment.

On the whole, the following little tract is a quite
new Essay, there being no treatise any ways like it

X PREFACE.

hitherto puhlished, and therefore it is to be hoped it
will be favourably received by every impartial reader,
since I may truly assure them, it throughout contains
very material and useful information.

" Mukum in parvo"

G. JACOB.

TABLE OF CONTENTS.

CHAPTER I.

PACK

Definitions and Divisions of Laws ... 1

CHAPTER II.

Maxims and General Rules for Interpretation of

THE Law 8

CHAPTER III.

Of Public and Private Individuals, their Rights

AND Duties 50

CHAPTER IV.
Of Offences and Punishments . ... 66

CHAPTER V.
Various Descriptions of Estates, Real and Personal 121

XU TABLE OF CONTENTS.

CHAPTER VI.

Rules relating to the Conveyance and Descent of
Lands and the Distribution of Personal Estate 139

CHAPTER VII.

Of the Courts of Law and Equity, and Actions and

Suits therein 177

CHAPTER VIII.
Words of Art and Terms of Law in General Use .214

List of Abbreviations used in Legal References . 249
Index 261

LAW GRAMMAR.

CHAPTER I.

DEFINITIONS AND DIVISIONS OF LAWS.

liAW in general is defined to be a certain rule for the
well-ordering of civil society ; — it is an art directing
mankind to the knowledge of justice, and the fountain
of all those precepts by which man, the noblest of sub-
lunary beings, is commanded to make use of the facul-
ties of reason and free-will in the general regulation of
his behaviour.

Lex est sanctio justa jubens honesta et prokibens con"
traria. — Br acton, c. 3, s. 1, f. 2.

And Laws are held to be either Natural, or Arbi-
trary.

The Natural Larvs, are coeval with mankind, and are
SHch as in themselves are just and good, and binding
in all places, for they are every where the same, being '
from God himself. No human laws, if contrary to
these, are of any validity.

B

2 DEFINITIONS AND

Arbitrary or Municipal laws, are institutions made by
men, founded on convenience, and depending on tbe
authority of the legislative power that made them: they
are designed for maintaining public order.

But all laws, according to Fortescue, derive their
force d lege naturce, from the law of nature ; and the
limited law of nature is the law now used in every
state. ^-'Fortescue de Laud, Leg* Angl, c 16.

The Laws of England are divided into three classes.

First, — The Common Lawy which is taken for the Itfw
of England simply, without any other law whatsoever^
before any statute was enacted to alter the same : it is
grounded on the general customs of the realm.

This law (says Lord Hale) is singalfffly adapted to
the firaroe of our constitution.

It is that which maintains and provides for the safety
of the king's person, his crown and dignity, and all his
just rights and prerogatives.

And this law is also that which declares and asserts
the rights, and liberties, and property of the subject. —
Hale's Hist, Com, Law, c. 3.

Second, — The Statute Law, or statutes made by the
king and both houses of parliament, which are usually
passed for providing against new mischiefs and evils
that arise by the corruption of the times.

Third, — Particular Customs in divers parts of the
kingdom, used by the people, and found to be benefi-
cial, and which being continued time out of mind,
without interruption, have obtained the force of a law,
to bind the places, persons, and things, concerned
tberein. — Co. LUt, 1 10 ; Conauetudo pro lege servatur.

And in order to ascertain whether particular cus*

DIVmONS OF LAW. 1

toms are good according to law, the following requi-
sites appear to form the necessary component parts of
each; viz. — It must, have been used so long that the
memory of roan runneth not to the contrary; — it must
have been continued, and without any interruption;**-*
it must have been peaceable, and not subject to dis-*
pute; — ^it must not be unreasonable in itself; it must
be certain in its objects and efiects ; it must, although
established by consent^ be compuLiory, and not left to
the option of every one whether he will adopt it or
not; — and lastly, customs must be consistent with
each other, because one custom cannot be set up in
opposition to, another.

Our laws, however, have a larger particular dasaifi-
cation, and are again subdivided under the following
h^ds, yia*

, Tb^ Cronm Lawy concerning the king and his psero*
gative.

^ Xbe. Law and Qusiom- of Parliamenl, to determine
matten^rtbeie done.

And by Holt, C. J., this law ought to be determined
iQ4h^ Kji^s Benchy where any question arises thereon.
-^JL JRaymondf 18.

. I Tbei Cpnanpn Lam^ that is common to <^ whole
kingdom.

Tl^ S^attUe Xafv#. enacted. in parliament.

,.^t^«ORa&fe Ci<^<09n^9 established by long usage.

Th^ Ljam qfJrms, relating to war and martial afSaim*

, Bui wbat is called ^he MurtMLami may. not be ex-

eff^ftt^ 43tn p0rs<A6 in time of peaee» when the Mik^s

covi^t^sxer open for justice ; except it be by authorily

9 DBriKmONS AND

«f psrllament, as is of late times done by annual . ^t$
for the punishment of mutiny and desertiog( In tbe^aim^y.

The Ecclesiastical or Canon Law, which signifies the
htw of the church, and consists of certain rules taken
out of the Scripture, the writings of the Fathers, the or-t
dtnances of General Councils, and decrees of Pope^ in
Ibrmer ages.

The general canon law, is no farther in force io this
idngdom, than it has been received here, and is oon^
sistent either with our common or statute bw.

Though we have particular canons made in the con*
vocation, and having the king's royal assent, for thego»-
Ternment of the church, religion and clergy, &c.

Which are warranted by act of parliament, and
deemed the laws of the land. — Can, Jac, 1.

The Civil Law used in certain cases, and is that law
which every particular nation or commonwealth has
peculiarly established for itself. — Jus Civile est quod
quisque Populus sibi constituit.

In a stricter sense, it denotes that law which the old
Romans made use of, and was compiled from the laws
df nature and nations ; the twdve tables may be said
to be the foundation of it, which are highly esteemed
lor their great equity.

• This law is allowed here in the two universities of
Oxford and Cambridge, for training up students, &C.4
also in matters of foreign treaties, marine afiaks, ocder'*
ing martial causes, judgments of en^ns and armsi rights
of honour, &c.

Th^ Forest Law, for preserving the king's game*
'• Th& Law of Marque and Reprieali to redress people
iiyui^d at sea.

And the Law-Merchant, proper to merchants, and

DlVItlOKS OF £AW« B

difieritig from the eomtnon law, but become a part of

the Mws of the realm.

'. • ' . '

In -ancient authors, the several grounds of the law of
£n^and are said to be these:

Fur9t,-*-«The Law of Reason^ which is observed in this
realm as in all others ; and reason is the gift of GoA
to many or power of the soul that discerns between
good and evil, comparing the one with the other, and
which shows virtues, loves good, and flies vice ; from
whence it is termed the first rule, that all things must
be. ruled by.

Secondly, -^The Law of God; and therefwe it was
formerly inquired in divers courts, if any persons held
opinions secretly or otherwise against the true Catholio
fiiith ; or if any general custom were contrary to the
law of God, or any statute was made directly againsi
it.

Thirdly, — The General Customs^ from time immemo^
rial, used throughout all the land, which have been
ever approved by the king and all his subjects» a9
being Neither against the law of God nor the law of
reason^ and which are properly called the common law«^

Fourthly, — The Law Maxit/ts, consisting of divers
principles that have always been taken for law in this
realm ; and what is a maxim or general custom, and
what is not,. shall be determined by the judges.

F]f^bly,*^The Particular Customs used in several
counties, towns, cities and lordships of the realm ; and
these, because they are not contrary to the law of
reason, nor the law of God, though against the general
customs or maxim of our laws, yet they stand in effed
for law.

Sixthly, — The Statutes enacted by our lady the queen»

6 DCFINITIONS AND

aad by the lords spiritual and temporal, and the com*
mons, in divers parliaments, in such cases where the
law of reason, the law of God, customs, maxims, and
other rules of law, have not been sufficient to punish
evil men, and reward the good.

And these statutes are either public or private. A
public act of parliament a£fects the whole community.
And private or special acts of parliament are those
which operate upon particular persons or private con-
cerns. But all acts of parliament relating to the king
Or queen are general and public acts.

There are no other grounds of the laws of England;
and according to Lord Coke, the Common Law, is the
common birth-right that the subject hath for safeguard
and defence of his liberties and properties, viz, not
only of his goods, lands, and revenues, but also of his
wife and children, body, fame, and life. — Co. Lit. 142.

On the foundation of our laws, and from natural
principles of justice, every person is entitled to his life,
Hberty and property^ who has done no act to forfeit
either.

The right of personal security, which the laws of
England afford, are not only confined to a man's life,
his limbs, or his body, but his health and his reputation
are alike protected. Next to these, the law regards,
asserts, and preserves the personal liberty of individuals ;
and every Englishman may claim a right to remain in his
own country unless driven from it by sentence of law ;
except indeed sailors and soldiers, whose employments
necessarily imply an exception. The remaining abso-
lute right inherent in every subject of this realm is that
of pr<^rty, which consists in the free use and enjoy*
ment of all his lawful possessions.

DlVISIOlfS OF LAW. 7

By Magna Charta it is declared, that no freeman
shall be divested or deprived of his freehold or his li-
berties, except by the judgment of his peers, or the law
of the land.

A person's life may be unlawfully taken away in di-
vers ways.; as in cases of murder, manslaughter, poi-
soning, &c.

A man's liberty may be affected in several manners,
as by false arrest and wrong imprisonment, &c.

And a person's property may be trespassed upon and
injured by force, or lost, by taking away his goods,
committing felony, robbery, or burglary.

But in each of the above instances the law is always
ready to award a just punishment to the evil-doer ac-
cording to the extent of his crime ; and in cases of civil
injuries, a quantum of damages in proportion to the
specific injury sustained.

( 8 )

CHAPTER II.

MAXIMS AND GENERAL RULES FOR INTERPRETATION

OF THE LAW.

A Maxhn in law is said to be a proposition, by all men
to be confessed and granted, without any proof, argu-
ment, or discourse. Contra negantem princ^ia non est
dispulandum.

Maxims are some of the grounds of the law of Eng-
land, and are of the same weight in law as the statutes,
and the general customs of the realm are their strength
and warrant.

What is a maxim in law, and what is not, shall be
determined by the judges, and not by a jury.

Of maxims and general rules the books of law are
fuU ; but the chief of the Latin Maxims^ affecting life,
liberty, or property, with useful observations thereon,
are these which follow.

Actus Dei neminifacit injuriam : the act of God does
injury to no man.

The reason of our law is so much ruled by religion^
that it will not permit the act of God to prejudice any ;
therefore if any house is blown down by tempest, the
tenant is excused in waste ; but if he expressly cove-
nant to repair, then an action lies.— Co. Lit. 53.

If a defendant dies in execution for debt, the plain-

MAXIMS AND OEMEBAL RULES. V

tifF in the action shall have a new writ of execution,
hecause the defendant's death is the act of God.

For otherwise the plaintiff would lose his debt with-
out any default in him.

Actus legis nulli facit injwiam : the act of the law
doth injury to none.

For if lands out of which a rent-charge was granted
were recovered by elder title, and thereby the rent-
charge became avoided ; yet the grantee might have
had a writ of annuity. ^-Dy. 60.

And this because the rent-charge was made void by
course of law.

Actus me invito factus, non est mens (ictus : an act
done against my will is not my act.

As where a person is compelled, for fear of imprison-
ment, to make a bond^ deed, or other writing; the
compulsion will render the same void, as if it had never
been made. — Co. Lit, 253,

And not only a deed, but a marriage procured by
duress, is likewise voidable ; for all acts ought to be
voluntary, and the law hath a special regard to the
safety and liberty of persons.

If one obliges another to surrender his estate, it
amounts to a disseisin of him. — 14 As, pi. 10.

Actio personalis moritur cum persond : a personal ac*
tion dies with the person.

In case one commits a trespass, or a battery be done
to a man, and he that did it, or the other die, the ao*
tion is gone. — jN'oy*s Max. 5.

A lessee for years makes destruction on the lands

b5

10 MAXIMS AND GENERAL RVLB8

let, and then dies, no acUMi of nmste will lie against
his executor or adukinistmtor for iv^Me done before
Ibetr tiine.

Also an action of debt lies not against executors
upon a simple contract, for that action dies with him.

And because the executors cannot wi^e their law or
deny it, as the testator might have done.— 9 Co, 87.

Yet there may be an action of assumpsit upon the
implied promise of the testator.

Accessorium non duett sed sequitur stmm prtncipale.
Therefore on a grant of land for life, rendering a cer-
tain rent, with the reversion to another, the rent passes
with the grant of the reversion, because it is incident
to it ; but the reversion would not pass by a grant of
the rent. — Co. Lit. 152.

So if land to which common was appendant or appur-
tenant was recovered in an assise of novel disseinn, it
was a tacit recovery of the common also. — Co, Ltt. 154.

So also where the tenant in tail of a manor to wfiich
an advowson is appendant, makes a ^eofiment of the
manor with the appurtenances, and the feoffee re«in-
feoiffs the tenant in tail, saving to himself the advowson
on the death of the tenant in tail, his issue being re-
mitted to the manor, is consequently remitted to the
advowson «ilso, notwithstanding its severance ; for the
manor is the principal to which the advowson is acces-
sary. — Co, Lit. 849 b.

And under the old law, in criminal matters, if a ser-
vamt instigialed o stranger to kill his master, this being
murder in the stranger as principal, of course the ser-
vant was accessary only to the crime of nnirder ; though
had he been present aiding and assisting, he would have
been guilty as principal in petty treason, and the stranger

F<A IKXEBPKXZATION OF THE LAW. 11

of mufiier ; for it is a maxim that ttcceuornu sequitur
^naturam na prme^MUis: and therefore the accessory
cannot be guilty of a higher crime than the priDei|Kil.
r^3 Inst. \39 ; 2 Hawk. P. C. US ; Difer, 128, 254 ;
4f BL Com» 36. See also Wingates^s McLxims.

Aeeu$airejnemo se debet nisi coram Deo : no man ought
to accuse himself unless it be before God.

An oath is not lawful whereby any pemon may be
compelled to confess, or accuse himself, &c. Likewise
a person may not swear for himself^ but only where he
has partienlar power by some statute. — 4 Co. 9.

In all cases of confession of crime before magistrates
and. other persons, if it iqapears that a prisoner was in-
diioed to do so either by promise of reward, or by me-
naces or undue terror, it cannot be received in evidence
against him,-^2 Malef 265.

The law will not enforce any one to show or say
what )is i^ainst him ; for which reason an offender,
though ever so culpable, may plead Not Guilty ; and is
onoedyreeommendedtodo so by the judges of assise.

.A&^is,mon debet ease judex in proprid causd : no per-
«oa«iightitQ be a judge in his own cause.

And .therefove a lord of a manor having cognizance
of oE kmdstof pkas, cannot hold plea to what he himself
is a party ; nor may justices of peace act in any matter
relating to themselves ; except in certain parish busi-
;. — 16^09.2, :c. 18.

•Batanimdccper in his own case may detain a guest's
natil satisfaction be made for ataixding and other
fxharges : and a person may retake his own goods of
'Wdiioh he is 'dispossessed, or a:person having a lien may
detain goods until his demand is satisfied, &c.

1£ MAXIMS ANB OXKBBAL BULES

One cannot generally be witness in his own csase ;
for it is presumed by the law that he will be partial in
speaking for his advantage* — Co, Lit, 6. But this rule
however does not extend to criminal cases.

Amhiguum pactum contra venditorem interpretandum
est : an ambiguous deed or contract is to be expounded
against the seller or grantor.

So that if a man having a warren in his lands grants
the same land for life, without mentioning the warren»
yet the grantee shall have it with the land. .

For otherwise the grantor should have excepted such
warren out of the deed or grant.

But words shall be taken m the most ^ivourable
sense of the speaker ; as in an action against a man for
saying of the plaintiff that he hath forsworn himself, it
may be construed to be in common conversation.

And the action is only maintainable where it is said he
hath forsworn himself in a court of record. — 4* Co, 13.

A verbis legis non est recedendum : we ought not to
go from the words of the law.

The judges may not make any interpretation of a
statute against the express words thereof; for nothii^
can so well declare the intent of the makers of an act
of parliament, as their direct words in it themselves. —
5 Co. US.

All acts of parliament and letters patent must be
construed one part with another, and all the parts of
them together; and the words are to be taken in a
lawful and rightful sense, and applied to the advance-
ment of the remedy, &c. — Co, Lit. 381.

Where a statute admits of two rules of con8tructiou»

FOR INTERPRETATION OF THE LAW. 13

the intent of the legislature must he regarded in its in-
terpreUtioD. — Major v. Oxenhamt 5 Taunt, 340.

So also with doubtful words^ the spirit and intention
of the particular act containing them is to be taken into
consideration by the judges. — Jardine v. Lewis, 9 B. ^
C. 548.

Statutes in pari materid are to be construed in rela-
tion the one to the other ; and where a subsequent sta-
tute declares the meaning of a preceding one, it will
govern the construction of the first. — Morris v. Mellen,
SB. ^C. 454.

All penal statutes should always receive a liberal and
not merely a literal construction ; and no statute should
be so construed as to work injustice. — Needhanis case,
SRep. 136 a.

But cases out of the letter of a statute, yet being
within the same mischief, shaU be within the remedy
the statute provides.

Bastardus nullius est filius ; aut Jilius populi : a bas-
tard is the son of none, or the son of the people.

As a bastard is born out of marriage, his father is
not known by the law ; therefore he shall not inherit
or be heir to any person, for that he is in law as no
man's issue ; and he can have no heir but of his own
body ; because of the uncertainty who is related to
him. — Co, Lit. 243.

The bastard of a woman is said to be no child, where
the mother gives lands to him as such ; but having by
time gained a name of reputation, he may take a re-
nuunder, as a reputed son; and may hims^f purchase
by his reputed name, &c. — D^r, 374«

in case a child is born only a day after marriage, be-
tween parties of full age, it is no bastard, but supposed

14 MAZUS ANB OSHEKAL 1LULE8

to be the husband's: so if ainaii takes a wife* big with
child by another, who was not her husband. — Rol. Abr.

And if the husband be widnn the ^Mir seas, so that by
intendment of law he may converse with his wife, and
she hath issue, the child cannot be proved a bastard.

These cases are, unless there be an i^paivnt impos-
sibility, that the husband i&ould be the father of it; as
if he has lost his genitals, &c. — Co. LU. 244.

Caveat emptor ; qui ignorare non debmt quod jus
aUeumm emit : let a purdbaaer take caore what he does,
for he ought not to be ignorant of what he is about
who buys the right of another.

In most cases of defects in the quality of estates this
rule applies ; and thus, although then be defiiets in
the estate, yet if they are patent, the courts of equity
will afibrd no relief. — Lowndes v. Zone, 2 Cox, 8i6.

It was said by Lord Rosslyn in Old^ld ▼• Round,
5 Ves. 508, that he could not help a purdHser, who
did not choose to inquire for himself.

False descriptions of property, wheie the purchaser
has the power and opportunity of judging for himself^
do not mtitle a purchaser to r^kf.-^Sottt ▼• Hmmsam,
1 Sim. 1^.

Ctaeat actor : let the actor take care what he does.

If a landlord gives an acquittance to bis tamnt for
the last rent due, all rent in anear is presumed to be
satisfied.

And in case a person bound by bond pi^ a leaser
son before the day appointed, or at anpther place than
is limiled, and the obligee or lender of the snooey then

FO& XNXEBPBETAT10N OF THE IiAW. 15

aad tliere reoeiveili it^ this is a good iatis£u:tioii."-«Co.
Lit. £1£.

Acceptance of rent affirms, and makes a voidable
lease to have ooAtinuance ; and if where a tenant or
lessee assigns over his term, the landlord accepts the
Tent of the assignee, knowing of the aaeignment, he
cannot afterwards sue the lessee for rait***-3 Co. 23, 64.

An executor paying debts on simple contract, before
those of a higher nature on judgments, &c«, is liable to
the payment of all. — PL Com, 543.

And taking any of the goods of the deceased, makes
a man executor in his own wrong, and answerable.

Causa et origo est materia negotii : the cause and be-^
ginning is the matter of the business.

Although the law gives power to a person to enter a
tavern; — the lord to distrain his tenants' beasts; — him
in reveroion to view if waste be done ;*--a commoner
to enter into the land to see his catde, &e.

Yet if he that enters the tavern commits a trespass,
or the lord that distrains for rent, &o. kills the distress,
or if he who enters to view waste breaks the house, or
the oommisfiioner cut down trees; in these and the like
cases, the law will judge that they enter for that pur-
pose, and they shall be trespassers from the beginning.
—8 Co. 146.

Oessante coMsd, oenmt tffedus: the cause eeasii^, the
efiect also ceaseth.

Where a woman married is divorced from her hus-
band, she- shall have her goods given in marriage, not
bdngsfient; ibr they were given in advancement of
the woman, and the cause and consideration of that
gift is defeated. — Dyer^ 13, 61.

16 MAXIMS AND GENERAL RULES

In an action where a debt is the cause of execution,
on lands or goods, if the plaioliff releases to the de-
fendant all debts, the discharge of the debt discbaxges
the execution which is the effect of that cause.

If an office be granted to a person, to perform cer-
tain business, and he fails in his duty, the office shall
cease and determine.

Conjunctio maris foemince est de jure naturce : the
conjunction of male and female is of the law of nature.

The bodies and minds of persons are both joined in
matrimony ; in contracting which^ the consent of the
mind is chiefly regarded : wherefore it is said, that the
parties' consent, and not the copulation^ makes the
marriage. — Co, Lit, 38.

All persons may lawfully marry, who are not near of
kin, and prohibited by the Levitical degrees ; and the
age of consenting thereto is fourteen years in the man,
and twelve in the woman : if they marry before those
ages, they may themselves disagree to it.

A husband and wife are accounted in law but as one
person : and by marriage the man is entitled to all his
wife's real and personal estate; as the husband is the
woman's head, all she hath is her husband's ; but then
he is liable to the payment of her debts. A man can-
not grant any thing to his wife, or enter into any cove-
nant with her, for the grant would be to suppose her
'separate existence, and the covenant would foe a cove-
nant with himself.

A husband is bound to provide his wife with neces-
saries, and if she is obliged to contract debts for ihexop
he is obliged to pay for them ; but it must appear that
they are actual necessaries.

An action of debt lies against the husband for goods

FOE INTERPRGTATION OF THE LAW. 17

sold to the wife ; the law presumes they come to his
use : but a wife may not make any contract without
the husband's consent, except it be for necessary things
for her family, 8cc. ; if she do otherwise, it will not be
binding upon him.

The wife is sub potestate oirt, and therefore her acts
with regard to sale of lands and real estates shall not
bind herself, unless she acknowledges a fine of th^
lands, &c.

In the trial of any cause, the wife is not allowed to be
-evidence for or against her husband, and vice versd;
partly because it is impossible that their testimony
-should be indifferent, but principally because of the
union of person.

But not so in criminal cases, where the husband has
inflicted an injury upon the wife.

Constietudo manern et loci est ohservanda : the custom
of the manor and place is to be observed.

It is the customs of a manor which must direct what a
-copyholder ought to do, or ought not to do ; but copy-
hold estates shall not have the collateral qualities that
•estates of the common law have, without a' special cus-
tom. — Co, Lit, 63.

According to the general custom, if a copyholder
•commit waste, either permissive or voluntary ; or do
not pay his rent to the lord, being demanded, on the
land; or if he refuse to do suit of court;

Or in case he makes a lease of his estate for a longer
time than a year, without licence from the lord, &c.,
•either of these will be forfeitures of copyhold estates.

Cancessus tollit errorem. Therefore in a writ of
right, if the jury who were to try the mere right were once

16 MAXIMS AND GENERAL RULES

impanneled by the four knights, with the consent €i£
hoth parties, none of the twelve so chosen could be afber*
wards challenged. — Co. Lit. 37 a, £94; 5 Co, 40 b.

So if an issue be tried by another jury than it ought
to be, the verdict cannot be set aside as for a mis-tria!,
if the venue was changed by the consent of the parties.
--Cro. EUz. 664 ; Co. Lit. 126 a ; MT.Hargrm>e*s edit.
note(l); 5 Co. 36b.

Cujus est solum, ejus est usque ad caelum. Land, in its
legal signification, is of an infinite extent upwards as
well as downwards ; and this is the maxim of law t^
wards ; and therefore no man may erect a building to
overhang another's ground ; and downwards^ whaterer
is in a direct line between the surface of the land and
the centre of the earth belongs to the owner of the sur-
face, as is every day's experience in the mining coun-
tries. -2 Bl Com. 18; 1 Term Rep. 704; Cro. Eliz.
118; 9 Co. 54; Co.Lt^. 166; Wood* s Inst. 254.

Cuicunque aliquis quid concedit, concedere videtur et
id sine quo res ipsa esse non potest ; to whomsoever any
one shall grant any thing, he grants that without which
it cannot be.

If lands are granted to a man, he has an implied co-
venant for peaceable enjoying the same, and the law
allows him a way thereto without being expressly
mentioned. — Co. Lit. bQ.

And where a person grants all the timber trees grow-
ing in his woods, the grantee may come upon the
ground, and cut them down, and carry them through
all his land, though the grass receive injury by the
-carriage : for trees are proper to be carried by carts.

FOR IKTERP&ETATIOK OF TBE XAW. 19

and when a man hath title to the principal thing, he
Bhall always justify the necessary circumstance. — PL
Com. 15.

A tenant at will sowing com on the ground, if he be
ousted by the lessor, shall have free entry (egress and
regress), for cutting and carrying away the same.

And in case he be disturbed therein, he may bring
an action and recover damages.

Cui licit quod majus, non debet quod minus est non
licere : to whom it is lawful to do the greater, to him it
is not unlawful to do the lesser thing.

Where there is a custom that lands may be granted
to any one in fee simple ; here the grant to a person
and the heirs of his body, or for life, is within that
custom.

A person who has an office to him and his heirs may
make an assignee, and consequently a deputy.

Diiationes in lege sunt odiosce : delays are odious in
the law.

The delaying of justice is an obstruction to and a
kind of denial of it ; and pleas that are dilatory shall
not be received, unless sufficient probable matter is
shown for it, or the truth of them be proved by affi-
davit.

If a plaintiiF forbears to bring his cause to trial, the
defendant is not to be delayed, but may take out a writ
of venire facias^ directed to the jury to try the cause,
by what is termed proviso.

If the plaintiff do not proceed to trial in a convenient
time, he shall be nonsnit. — 14 G, % c. 17.

In criminal cases, wh^re persons are committed to

^0 MAXIMS AND GEKEEAL RULES

prison for capital offenees, as treason, f«lony, 4&C. ex-
pressed in the warrant, on prayer in opencottrt, jthe
first week of the term, or day of sessions, they a^td
be brought to trial.

If they are not indicted the next term or assises,
upon motion made the last day of such term or assize,
they shall be admitted to bail, unless the king's wit-
nesses are not ready.

And in case they are not tried the second term or
assize, they may be discharged. — 3i Car, ^, c. %,

Dormit aliquando jus, moritur numqttam : a right
sometimes sleeps, but never dies.

In the eye of our law, right is of such an high esti-
mation, that the law preserves it from death and de-
struction ; for though trodden down it may be, it is
never trod out. — Co. Lit. 279.

A right to land, it is held, cannot 4iie ; indeed a re-
lease of a person's right enures by way of extinguish-
ment, but then it is so understood in respect of him-
that makes the release, &c.

De minimis non curat lex: the law cares not about
trifles.

Therefore, where an action of waste is given, if tlie
waste done be only of the value of two -pence, the
plaintiff shall not have judgment. — Plotvd. 29. And it
is said that the waste ought to be to the value of forty-
pence at least. — Hargrave^s Co. Lit. note (10), p. 54 a.

Dominium a possessione c^episse cUeitur : right and

dominion is said to have its banning from possession.

According to this maxim, a long and quiet posses-

on of a right sufficiently establishes such a right ; but

FOE INT£RPB£TATIQN OF THE LAW. ^l

then it .must exceed tbe memory of man ; and if there
be proof of record, or in writing to the contrary, though
it exceeds the knowledge or memory of any one living,
yet it is judged within memory. — Co, Lit, 115.

The reason why a peaceable possession, without oon«
traduction, makes a right in law, is that thereby there
may be certainty of titles to estates.

The limitation of time as now fixed for the recovery
of lands is regulated by the 3 & 4 Will. 4, c. £7 ; and
by the second section of that act no land or rent can
be recovered but within twenty years after the right of
action has accrued to the claimant, or some person
whose estate he claims.

Expedit reipublicce ut sit finis litium : it is for public
good that there should be an end of litigation.

Therefore, where a suitor is barred in any action, real
or persona], by judgment upon demurrer, confession, or
verdict, he is barred as to that or the like action of the
same nature for the same thing for ever. — Ferrer's Case^
6 Co. 7.

Expressum facit cessare taciturn : a matter expressed
causes that to cease, which by intendment of law was
implied and not expressed.

A man makes a lease, rendering rent, and the words
of reservation are express to the lessor only, the heir
shall not have it ; but if no person be said to whom xhe
rent shall be paid, this by implication shall be to the
lessor and his heirs. — Dyer, 45.

An express covenant qualifies the generality of a oo->
Tenant in law, and restrains it by the assent of the

^t . MAXIMS AND OEKERAL RULES

parties^ so that it shall extend no farther than it is ex-
pressed in the covenant.

, But a warranty in law is not destroyed by an express
warranty ; as if one grants a lease, reserving a certain
rent, in which he binds himself and his heirs to war-
ranty of the land, &c.

There the warranty expressed shall not make that in
law cease, or be of no eiiect, but the lessee may choose
which he pleases. — 4 Co. 81-

Ex nudo 'pacto non oritur actio: no action arises on a
•iiaked contract.

A consideration of some sort or other is so abso-
lutely necessary to the forming of a contract, that a
nudum pactum, or agreement to do or pay any thing on
one side, without any compensation on the other, is
totally void in law ; and a man, however he may be
bound in honour or conscience, cannot be compelled
by law to perform it — Dr. and St. D. 2, c. 24 ; 2 BL
Com. 445 ; SaUc. 129; 3 Burr. 1670.

As if one man promises to give another 100^. ; here
there is nothing contracted for or given on the one side,
and therefore there is nothing binding on the other. —
2 Bl Com. 445.

And it is a general rule, that wherever a person pro-
mises, without a benefit arising to the promissor, or a
loss to the promissee, it is void, 2 Buht. 269 ; 1 Bac.
Ahr. 170, as being without a legal consideration. But
as all promises i^all be taken most strong against the
promissor, the law will endeavour to find a good con-
sideration, if possible, in order to support a fair con-
tract, Popk. 148 ; 2 RolL Rep. 104 ; and therefore any
degree of reciprocity will prevent the pact from being

FOR INTERPRETATION OF THE LAW. ^S

nude; nay, even if the thing be founded on a prior
moral obligation^ it is no longer nudum 'pactum ; as a
promise to pay a just debt, though barred by the sta-
tute of limitations, % Bl, Com, 445 ; or, a promise by a
bankrupt after the bankruptcy, to pay a debt due be-
fore, in consideration of the creditor agreeing to take
no dividend, Trueman v. Fenton, Cowp, 548 ; and as this
maxim was principally established to avoid the incon-
venience that would arise from setting up mere verbal
promises, for which no good reason could be assigned,
Plowdf 308 ; 3 Burr. 1671, it does not apply where the ^
promise is authentically proved by written documents ;
sed nide Lord Mansfield's Opinion^ 3 Burr, 1671 ; and,
therefore, if a man enters into a voluntary bond, or
gives a promissory note, he shall not be allowed to
aver the want of consideration in order to evade the
payment; for every bond, from the solemnity of the
instrument, Hardr, 200; 1 Ch. Rep. 157, and every
note, from the subscription of the drawer, Ld, Raym^
760, carries with it internal evidence of a good con-
sideration : and courts of justice will therefore support
them both as against the contractor himself; but not to
the prejudice of creditors or strangers to the contract.
—2 BL Com. 446 ; Noy's Max. 24 ; 8 Co. 80.

Expressvo unms est exclusio alierius : the mention of
one person is the exclusion of another.

Therefore, says Littleton, if the condition upon a
mortgage be, to pay to the mortgagee, or his heirs, the
money, and before the day of payment the mortgagee
dies, the feofibr cannot pay the money to the executors,
for the payment oi^ht to be to the heir; and the law,
adds Lord Coke, shall never seek out a person when the

ii MAXIW AKD OBKBBAL KDLB9

i|)artie3 tbemBelves have appointed one; toi expretnta
Jitcit ceasare tadlum. — Co. Lilt. £10.

So, also, where a man was bound to pay iQl. to auefa
a person as the obligee should by his nill appoint, and
the obligee named a person executor, but made no other
appointment, it was resolved, that the executor should
not have the 30/. — liOTANottmgkam's^AS. notes toO.
tin. 21t» a; »ed vide 1 Freem. 476; 2 Co. 46; I Bl.
Com. 88.

So, also, where a atatute treating of "deans, preben-
daries, parsons, vicars," and others having spiritual
promotion; deans being the highest persons named,
Uthopg, who are of Btill a higher order, are not in-
cluded under the general words.

Fortior et potentwr est dUpoailh legia quam hominis :
tlie disposition of the law is of greater focce than the
disposition of man: this is explained in surrenders of
estates.

As if a person having granted a lease of lands for
years, to begin at Lady-day next, he cannot make a
surrender of his future interest, because there is no re-
version wherein it may be drowned.

Though in case the lessee before Lady-day take »
new lease of the same lands, &c. for years, either to
to begin presently or at Lady-day, this is a surrender
in law of the former lease and interest— 10 Co. S7.

Fariosui solo furore ptinitur; a madman or lunatic i3<
punisheii by his madness.

If a madman kill another, he hath not broken the
r, although he hath broken words of it; because he
i not any nemory or understanding, but mere igno-

FOR IMTERPRBTATIOK OF THB LAW. 25

ranee, which Gomes from the hand of God. — Plomden,
Cam, 19.

And therefore soch madmaii has favour shown him
by reasfHi of his disability ;^--he shall not suffer for any
felonious act; — ^nor can the punishment of a lunatic
without his mind and discretion, be an example to
others. — Co, Lit, 247.

A madman, in a civil case» cannot promise or con-
tract for any thing, or do any business ; and this is
because he understands not what he does ; all his acts
may be avoided, either by the king who has the care
of the estates of lunatics, or by his heirs.

If a lunatic entered into the contract and bond of
marriage, such marriage would be void if the lunatic
enjoyed no lucid interval at the time of the celebration.
— Parker t, Parker, 2 Lee, Rep, 382,

But if a man mm compos mentis levied a ^ne, or suf-
fered a recovery of lands, &c. — these, being matters of
record, were held to bind himself and his heirs. — 4 Co,
124i.

The method of proving a person non compos is as
follows: — The Lord Chancellor, to whom, by special
authority from the crown, the care of all lunatics and
idiots belongs upon petition or information made to
him, grants a commission de lunatico inquirendo, to
inquire into the party's state of mind; a jury is im-
panneled thereupon, and tiie commissioners named
proceed with the inquiry by the testimony of wit-
nesses ; and if it be found that the party is non compos,
the Lord Chancellor usually commits the care of the
lunatic's person to some friend, with a suitable aUow-
ance for his maintenance, and the friend so appointed
is called the <* committee."

26 MAXIMS AND GENERAL RULES

The next heir is seldom appointed as committee of
the person of a lunatic, because it is his interest that the
party should die, but is sometimes appointed committee
of the estate, because it is his interest to keep it in
good condition.

H ceres legitimus est quern nwptice demonstrant ; he is
lawful heir whom marriage demonstrates so to be.

A child born within marriage^ though ever so soon
after, is in law legitimate, and heir to the husband:
but an alien may not be heir, though born in lawful
wedlock.

In case a child be born in second marriage, within
nine months after the first husband's death, he may be
heir either to the first or second husband. — Bract, 91.

A bastard is excluded from being heir ; and a mon-
ster without human shape, cannot be heir to a person ;
but an hermaphrodite, if there be any such, may take
lands, &c. as heir according to that sex which is most
prevalent. — Co. Lit, 8.

The eldest son, afler the death of his father, is his
heir ; and if there be grandfather, father and son, and
the father dies before the grandfather, the grandson
shall be heir ; who is termed Jueres jure representa^
tionis, because he represents his father's person.

Till the death of the ancestor, one is called heir ap-
parent ; and, by the common law, a person cannot be
heir to goods and chattels.

There is an ultimus hceres, on the escheat of lands
for want of lawful heirs ; which is the lord of whom
held ; and he is sometimes the king and sometimes the
lord of the manor.

FOE INTERPEBTATION OP THE LAW. 27

Id certum est^ quod cerium reddi potest. Therefore,
where a tenant holds his land by shearing all the lord's
sheep on a particular manor, if the service be referred
to the number of sheep it would be uncertairif for there
may be sometimes a greater and sometimes a less
number, and in such a case the tenant would not be
distrainable ; it being a maxim that no distress can be
taken for a service that is not certain ; but if the ser-
vice be referred to the manor, it then becomes certain.

A custom to pay two-pence an acre in 'lieu of tithes,
is good ; but to pay sometimes two-pence, and some-
times three- pence, as the occupier of the land pleases,
is bad for uncertainty. Yet a custom to pay a year's
improved value for a fine on a copyhold estate is good,
though the value of the thing is uncertain ; for the
value may at any time be ascertained.

Ignorantia juris non excusat; the ignorance of the law
doth not excuse one.

Ignorance of the law, even in infants being of the years
of discretion, shall be no excuse if they commit crimes ;
and although it be invincible, as where a person af-
firms that he has done alt that in him lies to know the
law. — Doct. Sf Stud. c. 46.

For every man is bound at his peril to take notice of
what the law of the realm is.

If any person takes upon him to know the law, and
through ignorance openly affirms that a void lease, &c.
is good, to the prejudice of another's title ; he may
have an action against him, and recover damages.

Ignorantia facti excusat; ignorance of the fact ex-
cuseth.

c 2

26 MAXIMS AND OBKSBAL KOLEB

A person buys a horse in a fair or market af one
that hath no property in him ; if this were unknovm to
the buyer, he has good right to the horse, and his ig-
norance shall excuse him.

But here, if he had known the leUer had no r^it,
the buying in open market would not have excused.

Where an illiterate ignorant man seals a deed, and
it is read to him false, that makes the same void.

Impotentia excusat legem; the law excuses impotency
(or rather, natural inability).

This maxim regards the infirmities of persons, where
the law excuseth their not doing certain acts; as of in-
fants, men in prison, out of the realm, idiots, and luna-
tics, persons blind and dumb, &c. — Co. Rep, 177.

Legal imprisonment, without any covin, shall be a
good excuse for a parson's non-residency, by reason of
his impotency.

If a disseisee be an infant, feme covert, or in prison*
&c. and the disseisor dies seised of the land, it shall be
no descent to take away an entry, because of impotency
in such persons.

And their right of action is saved, till their impedi-
ments are removed, where others are bound by the
statutes of limitation.

Injuria illata in corpus non potest rendtti: injuries to
the body cannot be remitted or forgiven.

Our law carefully provides for punishing forcible in-
juries, between person and person, because they are
most contrary to the repose of the kingdom, on which
the pul^lic happiness depends.

And the life and member of every subject are under

FOB IKTKEPBETATJOH OP THE LAW. J9

the king's protection, to the intenft they may serve him
and their country when occasion requires, — Co, s. 161.
So tender is this part of our law^ that if one do but
menace another with a weapon or staff, or in c^e h^
stretch forth his arm, or give any other token, whereby
his intention of striking appears { it is actionable as an
assault, though no stroke be given.

In omnibus qutdem^ maxm^ tamen in jure, iequitas est :
m all things, but especially in the law, there is equity.

The laws themselves desire to be ruled by equity ;
whi<^ is said to be a correction of the law, wherein it
is any way wasting by reason of the generality of it.

The statute of Gloficester gives an action of waste
against tenants for life or years ; and by the equity of
it, this action lies against him that holds land for one
year only, or twenty weeks, &c. And if a lessor come
upon the ground of the lessee, it shall be intended that
he came to see whether waste were done.

For equity turns all to the best, and makes every
act lawful, when it is indifferent if it be or not. — Finchy
&7.

If a person does tiaake a feoffinent to a fliture use,
the feoffee shall be seised of the lands, &c. to the use
of the feoffee and his heirs in the mean time ; and this
is by equity.

In omnibus fere mtnort netcUi sticeunritur; in all casest
generally, there is favour shown to persons within age.

No man or woman, before the age of twenty-one
years, can alien or sell any lands, goods, or chattels, or
.bind themselves by deed, so careful is the law of their
interest, unless it be for necessaries. —Co. Lit, 171.

90 MAXlttS AND GENERAL RULES

An infant is permitted to do any thing for his own
advantage, but not to his prejudice ; he may make a
purchase, which is intended for his benefit, though at
his full age he may either agree to or waive it.

Infants may buy things, but cannot borrow money
even to buy clothes ; for the law will not trust them
with money, but at the peril of the lender, who must
see the same thus laid out. — Salk. 38G, pi. 2,

A presentation to a benefice is to be made by an in-
fant within the six months, being a thing of necessity,
otherwise lapse shall incur against him ; and he must
perform a condition annexed to an estate by his an-
cestor, or shall be barred of the right to the lands.

In some cases also an infant is impleadable at law,
and for his contempt shall receive the same punishment
as a man of full age. — Dy, 104.

In pari delicto potior est conditio defendentis : there-
fore, where an assurance was made on goods on board
a vessel " at and from London to New York," subse-
quent to the passing of the statute 16 Geo, S, c. 5^
which prohibited all commerce with the province of
New York, and confiscates all ships and their cargoes
which shall be found trading, or going to or coming
from trading with the said province, and the ship being
taken by an American privateer, the assured brought
an action on the policy to recover the loss from the
underwriter, but it being a direct contravention of the
law, the maxim prevailed.

' Jus si^tiimSf quod in legitimis successionibus spec^
tatur^ ipso nativitatis tempore qucesitum est : the right of

FOR INTERPRETATION OF THE LAW. 31

blood, which is regarded in lawful successions or inhe-
ritances, is found in the very time of nativity.

It is therefore jus primogeniturce^ or right of elder-
brothership, which is principally respected, and it is a
maxim, that the next of the worthiest blood shall ever
inherit; as the male and all descendants from him,
before the female ; and the female, of the part of the
father, before the male or female of the mother's part,
&c. — Co, Lit 14.

Among the males, the eldest brother, and his pos-
terity, inherit lands in fee-simple before any younger
brother.

Lex neminem cogit ad impossibilia : the law compelleth
no man to impossibilities.

' If the condition of a bond be possible at the time of
making it, and before it can be performed becomes im-
possible by the act either of God, or the law, or of the
obligee, &c. the obligation is not forfeited.

But where a condition for payment of money is made
impossible in respect of time, as if it be to pay the same
on the 30th of February, and there is no such day, it is
due and payable presently. — Co, Lit, 206,

Where a man is bound by a recognizance or bond,
with condition for his appearance the next term in such
a court, and, before the day, the cognisor or obligor
dies, the obligation will be saved ; because it is impos-
sible the condition should be performed.

So in case a lease be granted for twenty years, upon
condition that the lessee dwells upon the lands the whole
term, and he lives but ten years, the executors shall
enjoy the lands, for the condition is become impos-
sible.

$2 MAXIMS ANB OENEBAL BULBS

A condition of a bond to go to Rome in a fewhours,
is void and impossible, but it is said the obligation may
be good.

L^gis constructio nonfacit injuriam : the construction
of law shall wrong no person.

In case an executor of a will grants all his goods and
chattels, the goods which he hath as executor shall not
pass, for that would be a wrong to the testator's estate.

And where tenant in tail, or for life, makes a lease
generally, it shall be taken for the life of the lessor or
grantor, or else it would be wrongful to him in rever-
sion.

Though if a person seized in fee make any lease for
life, without mentioning for whose life, it shall be con-
strued for the life of the lessee.

Lubricum Ungtue non facile in pcenam est trahendum :
the rashness of the tongue is not easily punished*

This is where words are spoken in a passion ; for, in
all cases, words of heat, as to call a man rogue, villain,
knave, &c. will bear no action at law. — 4 Co. 15.

But if one reproaches another with some heinous
crime; calls a person, thief; a merchant, bankrupt;
says of an attorney, he deals corruptly ; or calls any
one, a peijured man ; an action o£ the case lies for
damages, because these slanders are of great import,
and concern a man's life, estate, and condition.

To call a person, bastard, who is heir to an estate ;
or to say, that a man has the French disease, &c., when
he is courting a woman, are held actionable.

Mutatd formd prope interimitur substantia rei: the

FOR IMTBRP&ETATION OF THE LAW. $$

form being changed* the substance of the thing is de-
stroyed.

In case a person cuts down another's timber trees,
and squares them to make beams for a house, he may
seize the same before they are thus used. Though if
they are laid in the building, diey may not be seized by
the owner, for their nature is then altered, and they are
become part of the house ; yet the party shall have his
aeti(m for the damage.— -Doi. 182, 133.

And where a man gets the barley of another, and
makes it into malt, it cannot be taken again by the for-
mer owner, though its form is not lost ; because it is
become a thing of another nature and use.

Necessitas non habet legem : necessity hath no law.

Where a fire happens in the street of a town, any
person may justify the pulling down the wall, or house
of another, to prevent the spreading thereof, as it is a
ease of necessity.

And if several persons are in danger of drowning,
by the casting away of a ship or boat, one to save his
life may thrust another from a plank, or the boat's side,
&e., though such other be thereby drowned. — Bac.
Max* 25,

According to our ancient books, if a man stole vic-
tuals merely to satisfy his present hunger, it was neither
felony nor larceny, being for the necessity of preserving
life.

But this having necessarily encouraged thefb, it is
now adjudged otherwise ; and the privilege of necessity
shall not prevail against the commonwealth.

The great Lord Coke says, Necessitas est lex terri'
pom, .

c5

34 MAXIMS AND GENERAL RX7LES

Necessitas indttcit privilegium quod jure privala : ne-
cesssity gives a privilege denied by law ; or as it is ex-
pressed in other words in 10 Co, 61, necessitas facit
licitum quod alias non est lidtum : necessity makes that
lawful which otherwise is not so.

The law charges no man with default where the act
which occasioned it was compulsory and not voluntary,
or where there is not a consent or election.

And therefore if it is impossible for a man to do other-
wise, or there is so great a perturbation of the judgment
and reason as in presumption of law man's nature cannot
overcome,. such necessity carries a privilege in itself.

Necessity is of three kinds, viz. for the preservation
of life; from the obligation of obedience ; and the act
of God.

Nihil magis cequitaii consentaneum est^ quam ut iisdem
modis res dissolvatur quibus constituitur : nothing is more
agreeable to equity than that every thing should be dis-
solved by the same means it was first constituted.

Every contract and agreement must be released by
a matter of as high a nature as that was ; so that a deed
in writing, under hand and seal, can only be released
by some other writing, signed and sealed, &c« — 5 Co, 26.

And therefore, an obligation or matter in writing,
cannot be discharged by an agreement by word*

Where an estate is vested in the king by matter of
record, it may not be divested out of him but by the
like matter ; and an act of parliament shall not be
avoided but by parliament.

N alius commodtim capere potest de injuria sud pro-
pria : no man shall take advantage of his own wrong. .

FOR INTERPRETATION OF THE LAW. 35

If a man be bound in a bond to appear at a day before
justices, on which day the obligee casts him into prison,
so as he cannot come ; no benefit shall be had of this
bond. — Noy. Max, 13.

In case a lessor and lessee of lands, for years, join in
the cutting down of timber, the lessor shall not punish
the lessee for such waste, and take advantage of his
own wrong by joining therein.

An appeal of an infant may not stay for his full age,
which would be taking advantage of his own wrong.

Nee tempus nee locus oecurrit regi ; neither time nor
place affect the king.

In pursuance ofthe principle that the king is not only
incapable of doing wrong, but even of thinking wrong,
the law determines that in him can be no negligence or
laches, and therefore no delay will bar his right. But
this maxim is subject to various exceptions, both at
common law and by statute. First, there are many
cases in which the subject may make title against the
king by prescripiwny as to treasure trove, waifs, estrays,
and such other things as may be seized without matter
of record. — Co, Lit, 114,

Secondly, in some cases the king's right necessarily
fails for want of exertion in due time ; either because
the subject of his right determines before he claims it,
or, because it is specially limited in point of time, by
its creation.

Thirdly, sometimes lapse of time drives the king to
a suit. Thus, if the king presents to a benefice already
full with an incumbent, the king's presentee shall not
be received by the ordinary, till the king has recovered
his presentment by due course of law. — IS Rich, 2, st. I,

36 MAXIMS AK1> OENS&AL RULES

c. 1 ; Staund. Free. 92; « IruL 858 ; Co. Lit. 844; Cro.
Jac. 385; « Inst. 188; Hob. 152, 347.

Fourthly, there were several statutes which whcdly
extinguished the king's title, if not exerted within a
limited number of years. By 21 Jac. 1, c. 2, the king
is disabled from claiming any manors, lands, or heredi-
taments, except liberties and franchises, under a title
accrued sixty years before the beginning of the then
session of parliament, unless within that time there has
been a possession under such title. But the efflux of
time rendering the provision continually more efiec*
tual, the 9 Geo. 3, c. 16, introduced one of a permanent
kind, by limiting the king to sixty years before the ccwa-
mencement of the suit or proceeding for recovery of
the estate claimed.

The other part of this maxim is founded on the idea
which the law entertains of the king's ubiquity ; for he
is supposed to be present in every place where his jwe-
sence is necessary.

Nullum iniquum in jure prcesumendum est : no injury
is to be presumed in the law.

All things are taken to be lawfully done, till proof
is made to the contrary ; and fraud shall never be in-
tended or presumed by the law, unless it be expressly

averred.

Where no fraud is found by the jurors in a feoffment,
the judges shall not adjudge the same fraudulent j and
although jurors have found circumstances to intide the
finding of fraud, it is but evidence, and not any matter
upon which the court may judge thereof. — 10 Co.*, Ck.
of Oxford*s case.

For the office of the jurors is to adjudge upon the

FOR IKTERPRBTATIOH OF THE LAW. 37

tfTideBce ooneermng matters of fact, and thereupon to
give their verdict ; and not leave things to the judg-
ment of the courts which do not appear to theni«

Omne actum ah agerUi$ intentume est judicandum:
^ery act is to be judged from the intention of the
agent.

It is held in contracts and obligations, the intention
of the parties is the chief thing that the law regards ;
and such words as show the assent of parties, and
have substance in them, are sufficient.

The law will likewise take one word for another in
deeds» to supply the intention of persons ; as where a
man has a remainder of lands^ if he grants it to ano-
ther, by the name of a reversion, the grant is good,
notwitfastandmg the mis-terming of the thing.

In wills, the intent of the testator shall generally he
observed^ as far as is consistent with established
rules,

Ofone majus continet in se minus — the greater contains
the less.

Therefore, if a man tender a greater sum of money

than he is bound to pay, yet the tender is good ;

for, quando plus Jit qudm fieri debet videtur etiam illud

jkri qtu)d faciendum est : et in majore summd continetur

minor. — 8 Co, 585.

So also where a man is empowered to make assigns,
he bath thereby an implied power to appoint a deputy ;
for, cut licet quod majus est non debet quod minus non
Ucere; as where the office of steward is granted to a
man and his heirs, he may make a deputy. Thus also
a man in prison shall not be bound by a recovery by

38 MAXIMS AND GENERAL RULES

default for want of answer in a court of record in a real
action, which is matter of record ; and d multo fortiori he
shall not he hound by a descent in pais^ which is matter
of deed, and consequently of an inferior nature ; for the
argument, says Lord Coke, d minore ad majus, always
holds affirmatively, and the argument d majore ad
minus, negatively ; the reason of which is, quod in mi*
nori valet, valebit in majori ; el quod in majori non valet,
nee valebit in minori.

Omnia prcesumuntur legitime facta donee probetur in
contrarium. — Co. Litt* 232, all things are presumed to
be legitimately done until the contrary be proved.

Omnis interpretatio si fieri potest ita fienda est in tn-
strumentis ut omnes contrarietates amoveantur; in instru*
ments, if they will admit of it, such interpretation is to
be given as will remove all contradictions.

Possessio fratris de feodo simplici facit sororem esse
hceredem : the possession of the brother, of a fee-simple,
makes the sister to be heir.

A man has issue, a son and a daughter by one wo-
man or venter, and a son by another, then dies seised
of lands in fee-simple, and the eldest son enters into
the lands, after which he dies without having any issue.
Here the sister shall have the land, and not the youngest
son or brother, though he be heir to the father ; but
there must be an actual entry upon the land, otherwise
it goes to the younger brother, — Co, Lit, 14.

The possession of a brother of an estate-tail, shall
not make the sister heir ; for it descends to the younger
son of the half-blood, who ought to have it performam
ioni. — PL Com, 57,

FOR INTERPRETATION OF THE LAW. 39

Prohibetur ne quis faciat in suo, quod nocere possit in
aUeno ; et sic utere tuo ut alienum non l<sdas : it is for-
bidden that any one should do that in his own, which
may injure another : and so use your own, that you do
not hurt others.

Where a man does any thing upon his own ground,
to the particular damage of his neighbour, it is ac*
counted a nuisance ; and an action lies for it, or the
same may be abated or removed by the persons that
are prejudiced thereby.

If a man has a house that has ancient lights, and a
stranger having lands adjoining builds a new house on
his lands, so near that the windows of the other are
darkened by it ; it is actionable.

As is also the setting up or making a house of office,
dye-house, lime-pit, steam-engine, &c., so near to ano-
ther's house^ that the smell thereof annoys him, or is
infectious ; or if the corruption of the water of the pits
hurts his water or grass, or destroys fish in a river, &c.

Proximus sum egomet miki: every one is next to
himself.

In case of wills, where an executor is appointed, he
may pay himself a legacy, before any other; and
among debts of equal degree, the executor may pay his
own debt first.

Executors are nearer to the testator, and do more
represent his person, than the heir does the ancestor ;
this is held, because if an executor be not named in a
mortgage, yet the law appoints him to receive the
money.

But the heir shall not receive it, unless he be named.
—Co. Lit. 209.

40 MAXIMS AND QENERAL EULES

• Publicum bonum prwato est preferendum : the public
good is to be preferred before private interest.

A woman intitled to dower shall not be endowed of
a castle of defence, for that is pro bono publico; but as
to castles for private use and habitation, it is otherwise.

The inhabitants of a village may make by-laws fox
repairing a church or highway, or any such thing as is
for the public good generally ; and the greater part '
shall bind all of them, without custom. — 5 Co. 63.

And corporations have power to make ordinances,
for the government of their bodies politic, and better
execution of the laws of the realm : but they may not
do so, without a custom or charter, unless it be for
things concerning the public good.

QuceUbet concesno foriissimi contra domUorem tnter-
pretanda est: every man*s grant shall be taken most
strongly against himself.

Whenever a deed is uncertain, and the words of it
are ambiguous, it shall be construed most strongly
against the grantor therein ; as if a man grants an an-
nuity of land, and he hath no land at the time of the
grant, it shall nevertheless charge his person.

And where any deed made to a person is good for
part, and for some part thereof not good, that which is
for the benefit and advantage of the grantee, shall stand
good in law. — Co* Lit, 42.

But although grants are taken strongly against the
makers, yet no wrong must be done by it ; and a man
may not be obliged by his own act and deed to do some
things which are against law.

For if a husbandman be bound not to till or sow his

FOR IKTERP&CTATION OF THE LAW. 41

land, the obHgation is contrary to the common law and
void.— 11 Co. 53,

«

Qui facit per alium facU per se ; what one does by
another, he does by himself.

If a man impowers another by letter of attorney to
sell and alien his land, and he doth so, it is an aliena-
tion by him ; and where a person gives authority to
his bailiff to sell cattle, and he doth it, this will be his
sale by the h^M^.-^Plmden's Com. ^75.

Where any person has a bailiff or servant, who is
known to be such, and he sends him to markets to buy
goods, his master shall be chargeable with the payment,
if the things come to his use.

In case he sells his master's cloth, and warrants it to
be goody or of a certain length, when it is not so^ an
action lies against the master only, and not the servant*
—Notf.

And if a person commands one to do a trespass, or
to beat another, he shall be himself a trespasser.

Qui serUit onuSf sentire debet et commodutn : he who
bears the burden, ought also to receive the profit.

A man seized of lands in fee, hath issue a daughter
and dies, his wife being with child of a son ; the daughter
enters and sows the lands, and then the son is born, and
his next friend enters ; here the daughter shall have the
com growing on the ground. — Perkins.

Also tenants for life, or in dower, having sown corn
upon the land, may devise the same growing at the
time of their deaths ; and their devisees shall have it.

Qui sentit commodum, sentire debet et oniu : he that
reaps the profit ought to bear the burden.

4S MAXIMS AND OENERAL RULES

If a person grant a rent-charge for life out of hisr
land, and afterwards conveys the land to others, in
every one of whose time the rent is behind, and then
the grantee dies, his executor may bring action of debt
against all of them for rent due in their time ; as they
all have the profit of the land. — 4 Co. 49.

And on assignment of a lease, the lessee who hath
covenanted to repair may have an action of covenant
against his assignee, for suffering a house to decay ;
because he that enjoys the profit must bear the burden
and charges.

Where persons enjoy benefit by making banks of a
river, they are to contribute to the repairs thereof. —
5 Com 100 ; and so of party walls.

Qtiod initio vitiosum est, tractu temporis non conva-
lescet: that which in the beginning is vicious, cannot
by length of time be made good.

In case a bishop makes a lease of church lands for
four lives, which is contrary to the statute, though one
dies in his life-time, so as now there are but three, and
afterwards the bishop dieth, yet it shall not bind his
successor.

For here the lease so made had a bad and unlawful
beginning, it being for more lives than the act allows,
and therefore cannot be brought to a good end. — 10
Co. 62.

If a feme covert, that is, a married woman, makes
a will, and publishes the same, and afterwards dies,
^ being sole, such will notwithstanding will be void and
of no effect.

And this is because the foundation, viz. the making
and publishing, is void. — Plowden's Com. 344.

FOR INTERPRETATION OF THE LAW. 43

Quod est inconveniens, et contra rationem, nan est per^
missum in lege : whatever is inconvenient and contrary
to reason is not permitted in the law.

It is likewise a maxim, that what is contrary to rea-
son is unlawful : and hence it is said, that all positive
laws, which are contrary to the laws of nature and of
reason, are no laws at all.

Therefore if a town hath customs, which are against
law and reason, and those customs are confirmed by
act of parliament ; such confirmation shall not make
them to be good and binding. — Co. Lit. 110.

But no person ought, out of his own private opinion,
to be wiser than the law.

Quod alias honum et justum est, si per vim vel frau-
dem petatur, malum et injustum est : what otherwise is
good and just, if it be acquired by force or fraud, is
evil and unjust.

And if it be mixed therewith, it is the same thing :
for where a man by will devised tenements to super-
stitious uses, and also to good and charitable uses ; it
was adjudged that the commixture of the evil use with
the good infected the good use and destroyed it. — 4 Co.
118.

At the common law, forcible entry into houses or
lands, &c. was no crime where a person had title, and
entry was lawful.

But by statute none shall enter into lands or tene-
ments but in a peaceable manner, though they have title
of entry ; upon pain of imprisonment, &c. — 15 Rich. 2,
c. 2.

In this case justices of peace have authority to com-
mit offenders till they pay a fine, and to restore the

44 MAXIMS AMD GENERAL &ULES

possession ; or an action of trespass may be brought,
and treble costs recovered. — 2 Imt, 257.

Res inter aUos acta alteri nocere non debet. Thus, if
A man make a lease for life, and then grant the rever-
sion for life, and the lessee attorns ; after which the
lessor disseises the lessee for life, and makes a feoff*
ment in fee, and the lessee re-enters ; this shall leave
a reversion in the grantee for life, and another rever*
sion in the feoffee ; and yet this is no attornment in
law of the grantee for life, because he doth no act nor
assent to any which might amount to an attornment in
law, et res inter alios acta alteri nocere non debet*

Rex est vicarius et minister Dei in terra, omnis quidem
sub eo, et ipse sub nullo nisi tantum sub Deo : the king
is the minister of God upon earth ; every one is under
him, and he under none, but only God. — Br€u:ton* c, 8.

All the lands in England are said to be holden either
mediately or immediately of the king ; and all estates
for want of heirs, or by forfeiture, on conunitting
crimes, escheat to the king, as lord paramount. — Co.
IM. 1.

Lands in the king's possession are free from tenure ;
for a tenant is he who holds of some lord by service,
and the king cannot be a tenant, because he hath no
superior but God : neither may the king be joint- tenant
with any, for none can be equal with him. — 8 Co, 118.

The king's grant is taken strongly against a stranger,
and more favourable for the king; contrary to the
grants of a common person : and if the king grants
land in fee-simple, upon condition that the grantee do

FOR INTERPRET ATIOX OF THE LAW. 45

not alien or sell the same, it is good ; though void in
others. — Plowden's Cem, 243.

Where a right or title of the king and the suhject
concur and meet together, his title shall be preferred ;
and the king's title is not to be tried without warrant
from the king, or assent of his attorney-general.

No distress can be made upon the king*s possession ;
*but he may distrain out of his fee in other lands, &c.,
and may take distresses in the highway : the king may
also distrain for the whole debt or debts due of one
tenant, where the estate is let to several.

In whose hands soever the goods of the king come,
their lands are chargeable, and may be seized for the
same -, and the king is not bound by the sale of his
goods in open market.

The debts of the king shall be satisfied before those
of a subject, for which there is a prerogative writ ; and
until his debts be paid he may by writ protect his
debtor from the arrest of others; but although the
king's debt is to be first paid, that must be when it is
in equal degree with the subject's. — PUmd. Com, 241.

No prescription of time runs against the king ; he
is not within the statute of limitation ; an entry shall
not bar htm ; nor will any judgment be final against
him, but with a salvo jure regis.

The king cannot be nonsuit, as he is supposed to be
present in all his courts ; and he may have such pro*
cess in his suit, as no other person but himself can
have : and an action lies not against the king, but a
petition instead of it, to him in the Chancery.

The king is the fountain of honour and justice ; all
statute* are to have bis royal assent, and in calling or

46 MAXIMS AND GENERAL ROLES

dissolving parliaments, declaring war and peace, &c.,
his proclamation has the effect of a law.

Also acts of parliament are not binding to the king,
unless they concern the commonwealth, or he be spe-
cially named.

But notwithstanding the king's prerogative is so
large, as we find that to be law almost in every case of
the king, that is law in no case of the subject :

Yet the king may not by petition or bill, &c, dispose
of any man's lands or goods.

Nor shall he take that he hath a right to, which is in
the possession of another, but by due course of law.

He may ;iot command a man to prison against the
writs and processes of law ; nihil potest rex quam quod
de jure potest.

For the law is the rule of the king's prerogative,
which does not extend to any thing injurious to others.
— Plowden's Com. 487.

And as the subject owes to the king his true and
faithful obedience, so the king is to defend the laws
and protect the bodies and goods of his subjects. —
Protectio trahit stdjectionetn, et subjectio protectionem,

SaUis populi suprema est lex : the health and welfare
of the people is the highest law.

The main end of government is the common good of
the subject ; and by the same law which ordains our
kings, the meanest of the people enjoy the liberty of
their persons, and property of their estates, which it is
every man's concern to preserve to the utmost.

In cases that are for the general good of the people,
a man can justify doing of a wrong ; as in time of w^
a person may erect bulwarks on another man's lands :

FOR INTERPRETATION OF THE LAW. 47

and hence it is, one may at any time raze an house that
is burning, for the safeguard of neighbouring houses.
— Flawden^s Com. 322.

Trade being for the benefit and good of the people,
bonds to restrain the exercise of it are held void ; and
the instruments of a man's trade or profession may not
be distrained, as the books of a scholar, axe of a car-
penter, &c.

But this is understood when other things may be
taken as a distress, — Co, Lit. 47.

Semel malus semper pr<jesumitur esse malus: those
who once are evil are always presumed to be so.

This hath been understood in eodem genere niali, in
the same kind of evil ; as perjured persons^ who have
once forsworn themselves, and thereof are convicted,
will not be afterwards admitted to give evidence in any
cause, because they have once so offended.

And no infamous person, or one attainted of false
verdict or conspiracy, or convicted of forgery or fe-
lony, or one who had stood in the pillory for an in-
famous offence, &c., was allowed to be a witness. — Co,
Lit, 6.

But if a man convicted of felony, or who had stood
in the pillory, was afterwards pardoned, it restored him
to his credit as a new man, and he might be a good
evidence.— -2 Hawk. P. C. 397, pi. 48.

Substantia prior et dignior est acddente : the sub-
stance is more worthy, and before the accident.

No declaration or court in a suit at law shall abate,
so long as the matter of action is fully showed in sub-

48 MAXIMS AND GENERAL RULES

Stance in the declaration and the writ, as is provided
by the statute 36 Edao. 9, st. 1, c. 15.

And no judgment shall at any time be arrested or
stayed in any court of record, for want of any matter
of form in the declaration, plea, &e., or for any defect
whatsoever, except only matter of substance, which
shall be showed publicly to the judges of the said
courts. — 18 Eliz, c. 14.

After verdict is given in an action, in the courts at
Westminster, the judgment shall not be reversed by
writ of error, for any faults either in form or substance,
in any bill or writ, &c., or for variance therein from the
declaration or other proceedings. — 5 Geo, c. 13.

Uhi major pars est, ibi est totum : where the major
part is, there by the law is the whole.

The only way of determining the acts of many is by
the major part or a majority; as the major part of
members of parliament enact laws, and the majority of
electors choose the members of parliament ; and the act
of the major part of any corporation is accounted the
act of the corporation.

A dean and the major part of the chapter make the
spiritual corporation, and their act is binding though
the rest do not agree to it ; for the whole chapter is
said to do what the major and sounder part doth.

And the consent of such major part is expressed by
fixing their seal ; which consent is the will of many
joined together. — Dav. Rep. 48.

Veritas nihil veretur nisi abscondi : truth fears nothing
but to be concealed.

And truth is nothing else but an affection of our

FOB IKTERP&ETATION OF THE LAW. 49

speech and actions agreeing with the mind ; but is.pro«
perly called veracitast that is a speaking of truth ; of
which it is to be understood that it is afraid of nothing
more than to be obscured. — PlowdefCs Com. 59.

Fraud and covin are so mixed with truth, as they
often deceive, and put a false gloss upon the worst
things ; though the law will never permit them to sup-
press the truth where it can be discovered.

And in all cases it labours to make a discovery, and
censure corruptions.

Vigilantibus rum doitnientibus leges subveniunt : the
laws help those that are watchful, and not those that
are sleepy and negligent.

For want of being watchful, and by negligence, a
right nmy be lost ; as where an action is not brought
within the time appointed by the statutes of limitations.

All actions of debt, upon the case (except for words),
actions of account (other tlian concerning merchan-
dize), of detinue, trover, and trespass, must be com*
menced within six years after the cause of action. So
also in ejectment within twenty years after the title
accrued.

By the common law, claim was to be made within a
year and a day after a person was disseised of land, or
he could not enter ; and if a feme sole was disseised
before marriage, and then took an husband, then a de-
scent of the lands during the coverture took away her
entry. — Co. Lit. 95. For when the statute begins to
run, it never ceases.

( 50 )

CHAPTER III.

OF PRIVATE AND PUBLIC INDIVIDUALS, THEIR RIGHTS

AND DUTIES.

Sect. l.—rOf the Sovereign.

One of the most important advantages of the laws of
England are the rights and duties of perscms as they
are members of society, and stand in their various re-
lations to each other. These relations are either public
•or private, the most universal relation being that of
magistrates and the people ; and the private relations
•of life will be readily understood to consist of husband
and wife, father and child, master and servant.

Of the King or Queen,']-^The supreme executive
power of the kingdom is vested, by law, in the king, or
^ueen regnant.

The principal duty of the sovereign is to protect and
govern the people according to law ; it is alsq a maxim
of that law that protection and subjection »re reci<-
procal; the sovereign is also bound to execute judg-
ment in mercy; and to maintain the established religion
«f the land.

RIGHTS AND DUTIES OF INDIVIDUALS. 51

The sovereign being of special pre-eminence above
the people, is possessed in right of the regal dignity of
certain prerogatives, which are either direct or incidentaL

Direct prerogatives of the crown are rooted in and
spring from the political person of the sovereign, as the
right of sending ambassadors, waging war, or making
peace.

Incidental prerogatives are only certain exceptions
in favour of the crown, such as, for instance, that no
costs shall be recovered against the king ; that the king
cannot be a joint tenant, and that his debt shall be pre-
ferred to the debt of his subjects. — 1 Black. Com.

There are also certain other prerogatives attached to
the royal character in itself; to the royal authority ;
and also those prerogatives which are connected with
the immediate revenues of the crown.

Thus the sovereign is declared to be supreme head
of the state, both in civil and ecclesiastical matters.
The law also ascribes to him in his political capacity,
absolute perfection, and thus by a maxim of the law,
the " king can do no wrcHog." As the head of the law
he is ubiquitous, and always said to be present in court.
Another i^tribute of the mi^esty of the sovereign is,
that the law ascribes to him an absolute immortality ;
and thus it is said that *' the king never dies." Henry,
George, or William may die, but the king always sur-
vives. Immediately the reding prince dies in his
natural capacity, the imperial dignity becomes vested
in his heir without any mterregnwn.

By another prerogative of the crown, the sovereign
(as the representative of the entire people) has the sc^
power of sending ambassadors to foreign states, receiv*
ing ambassadors at home; of making treaties, leagues

d2

52 OF PUBX.IC AHD pRiTATE nn>iyn>tiAi.s,

and alliances with foreign princes ; the power of de-
daring war or making peace ; the granting of safe cdi»-
dncts, without which, by the law of nations, no member
of one nation has a right to intrude upon another ; and
also the power of ennoblingj because all subordinate
dignities must spring from the crown.

The principal remaining prerogatives connected with
the crown are those relating to mere domestic com-
merce, such as the right of establishing public markets,
and granting tolls therein ; the regulation of weights
and measures ; and the coining of money.

Lastly. The fiscal prerogatives, or such as regard
the revenue, which the constitution of our country has
Tested in the royal person, are as follows : —

First. The custody of the temporalities of bishops,
i, e. the lay revenues of an archbishop's or bishop's see
when the same is vacant, and the right of presentation
to all benefices and preferments therein which may fall
during the vacancy.

Second. The sovereign is entitled to a corody out of
every bishopric, that is, to send one of his chaplains to
be maintained by the bishop, or to have a pension al-
lowed him until the bishop promotes him to a benefice.

Third. All tithes arising in extra parochial places,
under the implied trust that the sovereign will distri-
bute them for the good of the clergy in general.

Fourth. All the revenues of first-fruits and tenths as
Tested by the statute of 2 Anne, c. 11.

Fiflh. The rents and profits of the demesne lands
-of the crown, which at present, however, are very small,
in consequence of their having been granted away al^-
•most entirely to private subjects.

Sixth. Another branch of the ordinary sevenue of

THEIR RIGHTS AND DUTIES. 5S

the sovereign consists in the profits arising from tbe
royal forests, and are composed chiefly of fines for
offences against the forest laws.

Seventh. There are also certain fines imposed upon
ofienders in courts of justice payable to the crown, as
are also forfeitures upon recognizances^ and forfeitures
by defaulters.

Eighth. Another branch of royal revenue is the right
to royal fish, which are the whale and sturgeon ; these
fish when caught near the English shores, are the pro-
perty of the sovereign, on the ground of his protecting
the seas from pirates^ and robbers.

Ninth. There is also another maritime revenue
founded also on the same reason, viz. the right of ship-
wrecks, but it must be observed that in order to con-
stitute a legal wreck the goods must come to land.

Tenth. The right to mines of silver and gold, which
owes its origin to the sovereign*s right of coining money.

Eleventh. Treasure trove or thesaurus inventus, which
consists of treasure of silver or gold in plate, money,
bullion, &c. found in the earth, also belongs to the crown.

Twelfth. Waifs, bona wavtatat goods stolen and thrown
away by a thief in his flight, are given by law to the
crown, as a punishment upon the owner for not himself
pursuing the felon and taking away his goods from him.

Thirteenth. Estrays, which are such valuable animals
as are found in any manor or lordship without any man
knowing the true owners thereof, these also belong to
the king, or queen regnant, as lord paramount of the soil.

Fourteenth. Forfeitures of lands and goods for crimes
and offences against the law also belong to the crown,
as do also those forfeitures which are commonly called
deodands.

54 OF PUBLIC AND PBIVATB INDIVIDUALS,

Fifteenth. Lands which are escheated by reason of
die defect of heirs, also belong to the crown.

Sixteenth. Another prerogative of the crown con*
sists in the custody of lunatics and idiots.

The remaining branches of the revenue of the crown
consist of taxes, aids, subsidies, and supplies, granted
by the commons of Great Britain and Ireland, in par-
liament assembled, and are described by Blackstcne, in
his Commentaries, book i. c. S, as the king's extraor-
dinary revenues.

Sect. 2, — Of subordinate Magistrates*

These are principally Sheriffs, Coroners, Justices of
the Peace, Constables^ Surveyors of Highways, and
Overseers of the Poor.

The Sheriffs are officers of great antiquity, and they
perform all the queen's business in the county ; they
are appointed yearly. In their judicial capacity they
are to hear and determine all causes of 40s, and under.

They may also apprehend and commit to prison all
persons who break the peace; they are bound to
pursue all felons and murderers, and for these purposes
they may command all the people of their respective
counties to attend them, which is called the posse conU"
iaius, or power of the county.

The sheriff is also bound to execute all processes
issuing from the queen's courts, and likewise to preserve
all rights of the queen within his bailiwick.

Tfi^Ift BIGHTS AKD PUTIE9* SS

The Caromr is akcf i very ancient office. There
are particular coroners for every county, usually four»
but sometimes more in number. The coroner i&
chosen for life» His principal duties are to enquire
into the causes of violent or sudden deaths, and also or
those which take place in prisons, and these enquirieir
must be made by a jury, over whom he presides.

If any person be found guilty of murder or man-^
slaughter by the cor<Hier*s inquisition, he is committed
to prison upon the coroner's warrant.

Sometimes process is awarded to the coroner instead
of the sheriff, ex» gratid^ when the sheriff himself i»
plaintiff or defendant in the suit*

Justices of the Peace (the principal of whom is the
castas rotulorum or keeper of the records of the
county) are appointed by the king's special commission
under the great seal*

Their duty is to preserve the peace, and any two or
more of them may enquire into and determine felonies
and misdemeanors committed within the limits of their
jurisdiction.

The office subsists only during the king's pleasure,
and is determinable by demise of the crown, by express
writ, and by superseding the commission.

The general duty of Constables is also to keep the
peace within their respective districts, and for that
purpose may apprehend, imprison, and in som« in*
stances break open houses, and the like.

There are two descriptions of constables, h%h eon*
stables, and petty constables ; the form^ ate appointed
at court leets, and sometimes at quarter sessions, the

56 OF PUBLIC AND PKIVATE INDIYIDUALS,

latter are generally appointed by two justices of tbe
peace.

As every parish is bound to keep its own high roads
in repair, this care is consigned to a Surveyor of the
Highways, His duties are to remove all annoyances
from the highways ; to call together the inhabitants of
the parish to assist in repairing the public roads ; to
erect guide posts, make drains, and generally to pur-
chase materials for the repair of highways; and in case
the personal labour of the parish is not sufficient, then,
with consent of the justices at sessions, to levy a rate
in aid of the personal duty.

Overseers of the poor were first appointed by the
4drd of Elizabeth. They are nominated yearly in
Easter week. Their duties are, as their name signi-
fies, to attend to the necessary relief and employment
of the poor, and these duties are principally defined by
the 4^5 Will. 4, c. 76, and the subsequent acts
amending the same.

All overseers must be substantial householders, and
are so expressed in their appointments.

Sect. 3. — Of the Clergy,

The clergy are considered by our law as persons set
apart for the service of the Almighty; therefore it is
that they cannot be compelled to serve on juries, nor
compelled to serve any temporal office, as constable^
&c.

THEIR RIGHTS AND DUTIES. 57

During attendance on divine service, a clergyman is
privileged from arrest.

They are incapable of sitting in the House of Com*
mons, which is a secular duty, neither can they re-
nounce the holy office to enable them to do so, because
the maxim is, " once a priest, always a priest."

They must not engage in trade, or farm more than a
certain quantity of land. — 1 ^ 2 Vict, c. 106.

The various ranks and degrees of the clergy consist
of Archbishops and Bishops, who have the superin-
tendence of the clergy within their respective sees, and
have also the power to inflict punishment upon them
by ecclesiastical censures.

A Dean and Chapter are the council of the bishop,
to assist him with advice in affairs of religion, and also
in the temporal concerns of the see.

The chapter consists of canons and prebends, and
these are sometimes appointed by the king, sometimes
by the bishop, and sometimes by the chapter.

The dean and chapter are the nominal electors of
the bishop.

Archdeacons have ecclesiastical jurisdiction immedi-
ately subordinate to the bishop, either thoughout the
diocese or in some particular division of it.

They are usually appointed by the bishop. An
archdeacon visits the clergy, and has his own court for
the punishment of offenders, and for the hearing of
matters of ecclesiastical cognizance.

Rural Deans are very ancient officers of the church,

d5

^8 OF PUBLIC AND PRIVATE INDIVIBUALS,

hut had gradually fallen into decline, nntil very re-
cently, when the office appears to have in some degree
been revived.

The rural deanery is a subdivision of the archdea-
coary.

Rectors and Vicars form the chief numerical order in
the ecclesiastical polity of England*

The distinction between a rector and vicar is, that the
former has for the most part the entire right to aU ec-
clesiastical dues in the parish, but a vicar is entitled
only to the small tithes, since he generally has an appro-
priator over him, who takes the best part of the profits.

The principal part of the duties of dergymen are
under ecclesiastical cognizance, but very many other
duties are also imposed by the statutes.

Rectors and vicars may be deprived of their prefer-
ments by the bishop for felony, heresy, simony, preach-
ing false doctrines, and for improperly absenting them-
selves from their benefices.

They may be also otherwise punished for misconduct
by sentence declaratory in the ecclesiastical courts.

A Curate is of the lowest degree in the church, being
an officiating temporary mmister, and paid by salary
from the proper incumbent ; there are however perpe^
tual curacies^ to which some portion of the tithes c^ a
parish are appropriated.

Churchwardens are inferior officers of the church,
sometimes appointed by the inenmbent of the parish,
and sometimes by the parishioners themselves.

Their duty is to assist the ecclesiastical jurisdiction,

fUUm RIGHTS AND I>t7Tl£8. Si

to repair the church, and to fie& that the Sabbath ii
properly observed ; there are also a variety of othei^
parochial matters entrusted to them by act of parlia-
ment, among which is their duty of assisting the over-
seers of the poor.

Farish Clerks and Sextans are in most instances per-»
sons who possess a freehold in their offices by common
Jaw, and therefore although they cannot be deprived^
yet they may be punished by ecclesiastical censures*

Sometimes these persons are appointed by the in-^
cumbent of the parish, but in maiiy instances local
cnstoms have vested the right of electing them in the
inhabitants of the parish.

Sect. 4. — Of Master and Servant, Husband and Wife,

Parent and Child, S^c,

The chief relation of private life are those of master
and servant, husband and wife, parent and child, guar-
dian and ward.

With respect to the first of these divisions it is to be
remembered that there are two sorts of servants^ menial
servants or domestics, and apprentices.

The master is said to hire the former upon going
into his service ; and if this hiring be general, the law
presumes that it lasts for a year, upon the principle of
equity, that the servant shall serve and the master
maintain during all the revolution of the respective
seasons*

The contract of luring and service may however, ib

60 OF FUBUC AND PRIVATE INDIVIDUALS,

^ cases, be made for any shorter or longer term than
?i'year.

. Apprentices are usually bound by a deed indented
to serve their masters for a term of years, and to be
instructed by them. This is usually done by and to
persons in trade, to learn the particular art or mystery
of the master.

Apprentices to trades may be discharged upon rea-
sonable cause, by application at the quarter sessions, or
to justices of the peace. Generally the parents of
apprentices are parties to the deed whereby they are
bound, in order that the master may have a sufficient
covenant for the good behaviour and faithful conduct
of the apprentice.

Other servants are called or distinguished by the
names of stewards, factors^ bailiffs, and labourers.

A master may correct an apprentice in moderation
for misbehaviour, but if servants of full age are beaten
by either the master or mistress, it is a good cause for
their quitting their service.

• All servants and labourers become entitled to wages
in consideration of their services, but generally speak-
ing apprentices receive no other reward for their labours
than the information and learning in business which
they derive from their masters.

A master may bring an action against any person for
beating his servant, and he may also justify an assault
in defence of his servant.

And by the maxim of law,^ct^ per alium facU per

se, if the servant commits trespass by the command of

'i master, the master is considered guilty of it, although

servant is not thereby excused ; so also if any inn-

THEIR BIGHTS AND DUTIES. 61

keeper's servant robs his master's guests, the master is
accountable to the g^uest for the articles stolen. In
like manner, where a servant is permitted, in the usual
course of his business and employment, by the master
to receive money, or to order goods, let lands, &c., the
master is accountable and must stand to the bargain
made by the servant.

The neglect o£ a servant is also sometimes considered
to be the neglect of the master, provided the damage
be done while the servant is actually employed in the
master's service.

Of Husband and Wife. — By the legal consequences
of marriage, husband and wife are considered as one
person in law.

A man cannot grant any thing to his wife, or enter
into any covenant with her, for the grant would be to
suppose her separate existence in law, and the cove-
nant would be with himself.

All contracts made between a man and a woman
when single, are avoided by their intermarriage.

A husband, however, may bequeath any thing by will
to his wife, because the bequest cannot take effect until
after the marriage is put an end to by death of the
husband.

The husband must provide the wife with necessaries,
and if she contracts debts in respect of such necessaries,
the husband is liable in law to pay for them.

But if a wife elopes from her husband, then he is not
liable for necessaries, if the person furnishing them is
aware of the elopement.

- If the wife's property or person is injured she can
bring an action for redress, without the husband's con-

62 OF PUBLIC AND PHlt'ATE INDIVIDUALS,

currence and in his name, and she cannot be sued ex-
cept by the husband being made a defendant.

But where the husband is banished, or has abjured
the realm, then it appears that the wife may both sue
and be sued in her own name.

In trials of any kind they cannot be evidence for or
against each other, partly because it is impossible that
they should give impartial testimony, but chiefly on
account of the union of person.

There is an exception to this rule, in cases of assault
and criminal violence practised upon the wif^.

In some felonies and inferior crimes, committed by
the wife under constraint of the husband, the law ex-
cuses the wife, but this rule does not extend to treason
or murder.

All deeds executed by the wife during her marriage
are void. She cannot devise lands to her husband
(except in certain cases) by will, because she is sup-
posed to be acting by his coercion and under his con-
troul.

A married woman cannot alienate or dispossess her-
self of any freehold estate during her marriage, except
under the provisions of the S & 4 fVUL 8, c. 74; by the
provision of which act the more expensive process of
the levying of fines by married women is abolished.

Parents and Children.^^The duty of parents to pro-
vide for the maintenance, education, and protection of
their children is one of the principles of natural law.

By the English law, the parent is obliged to maintain
the child at his own charge, if of sufficient ability.

But the law does not enforce parents to leave chil-
dren any certain provision by wiU, neither does it pre-

THEIE ftlGHTS AKO DUTIES. 6S

Tent a &ther from disinheriting his son ; every man's
property is left at his own disposal, upon the principle
of liberty in this» as well as erery other action of life.

Heirs and children are however favoured by the
coorts of justice, and cannot be disherited by doubt-
fill words.

The utmost certainty is always required of the testa*
tor*s intention, to take away the right of an heir.

A parent may uphold his child in the maintenance of
kw suits, without being guilty of the legal crime of
maintaining quarrels.

The remaining duty of parents is to give their chil-
dren educations consistent with their stations in life.

A parent may lawfully correct bis child under age,
IB a reasonable manner, because it is for the benefit of
his education.

The consent of a parent to his child's marriage, if
under age, is also necessary by law, and formerly with-
out it the contract wats void.

A father has no power over his son's separate estate,
except as his trustee or guardian, and must account for
the profits when the child comes of age.

The father has a r^ht to his childrens' services^
wbikt they live with fattiH in like manner as that of an
apprentice.

The legsA. porwer of a father over his son ceases at
the age of twenty-one years ; and until this age arrives*
the father's control continues, even after death, since
he may appoint a guardian to his children.

There are also certain duties enjoined by law frcmi
children to their parents, such as their maintenance,
when unable to maintain themselves by impotence or
infirmity.

64 OF PUBLIC AND PRIVATE INDIVIDUALS,

Illegitimate children can inherit nothing. But they
may gain a surname by reputation.

They cannot be heirs to any one, nor can they have
heirs except of their own bodies.

An illegitimate child can however be made legitimate
by act of parliament, as was done in the instance of
John of Gaunt's children by a statute of Richard the
Second.

Gtuirdians and Wards. This species of relationship
very nearly resembles that of parent and child.

Guardians by nature are the father, and in some
cases the mother of the child ; and if an estate be left
to an infant, the father is by common law entitled to the
guardianship ; but he must account for the profits to
the child when it comes of age.

Guardians in socage are so called, when the infant is
entitled to some estate in lands, and then the law gives
the guardianship to his next of kin, or to some person
upon whom the inheritance cannot descend, because the
law considers it improper to trust ^n infant in the hands
of a person who by possibility may inherit the estate.

Guardians in socage continue only until the minor is
fourteen years of age, and then he may choose his own
guardian.

There are also testamentary guardians, or those ap-
pointed by will.

And certain special guardians, by the custom of
London and other places ; but they do not fall under
the general law.

Infants have various privileges and various disabni"
ties ; but as Blackstone says in his Commentaries, their

THEIR RIGHTS ANP DUTIES. 65

Tery disabilities are privileges, and protect them from
wrong.

An infant cannot be sued, except in the name of his
guardian, for he is supposed to defend him against all
attacks of law.

He may sue by his next friend, who is not his
guardian, and any person who will undertake the infant's
cause.

In criminal cases an in^t under the age of seven
cannot be punished for any capital offence.

With regard to estates, an in£uit cannot alien his
lands, nor make a contract which will bind him.

But he may bind himself to pay for necessaries, as
meat, drink, clothing, and education, whereby he may
profit himself.

It is generally true that an infant can do no legal act ;
yet an infant may present to an advowson, when it be-
comes void, to prevent the worse consequence of the
benefice being vacant

An infant may purchase lands during his minority ;
but he may agree or disagree to the purchase when he
comes of age, if he thinks proper, without assigning
any reason therefor.

( 66 )

CHAPTER IV.

Of OFF£NC£B AND PUKlSRMENTS.

To constitute a crime in law there must be a vicious
act and vicious intention*

There are three cases in which the will does not act,
viz. where there is a defect of understanding, as in
idiots, lunatics, and infants of tender years ; secondly,
where, although the understanding and will exist, they
are not called forth at the time of the act done ; which
are offences by chance or ignorance ; thirdly^ where the
act is constrained by some outward violence, as com*
pulsion or necessity.

Insane persons cannot be tried for acts done by them
when in sound health of mind, and if after trial they
become mad, judgment cannot be pronounced upon
them.

The voluntary madness produced by drunkenness is
considered rather as an aggravation of the offence than
any excuse for criminal misbehaviour.

A man may be a principal in an offence in two de-
grees. A principal in the first degree is the actual per-
petrator of the crime, and in the second degree, is the
party who aids and abets in the act done.

OF OFFEKCEft AKD PUNISHMENTS. 67

A felon reffuing to put himself upon his trial, and to
plead, was fonnerly coiidemned to undergo the penance
ii€ peine forte and dure, and be pressed to death; but if
he stand mute by the act of God, it shall be inquired
of, 8cc,

In high treason, standing mute is equivalent to a con*
viction ; and judgment, corruption, &c., follow. And
so in cases of felony and piracy, by statute IZ Geo. 3^
c 20, he shall be convicted of the same, and judgment
and execution be thereupon awarded, as if he had been
convicted by verdict or confession of the crime.

An accessory is where a person is guilty of some fe-
lonious offence but not principally concerned, though
he is a partaker in the crime.

An accessory before the fact, is he that advises,
commands, or procures another to command felony,
and is absent when done ; if he be present, he is a
principal.

And an accessory before the fact may be tried either
in the county, where the principal felon is tried, or
where the offence of being accessory was committed.

The accessory after the fact, is one who receives,
assists, or comforts a man whom he knows to have
committed felony or murder. — Hale's P. C. 218.

But the felony must be complete at the time of the
assistance given.

If one commands another to beat a person, and|he
beats him so that he dies, the person commanding shall
be accessory to the murder : and in case A. command^t
B. to kill C. with a gun, who kills him with a sword,
A. is accessory, because the killing was the substance.

But here in this case, if B. by mistake kill D., it is
murder in B., but A. is not accessory thereto.

6B OF OFFENCES

And where a person commands another that he steal
a black horse, and he steals a white one, &c. or if the
command be revoked, the commander shall not be ac«
cessory.

And there cannot be an accessory before the fact in
manslaughter, by reason it is done of a sudden, and not
premeditated.

A woman that receives or assists her husband is not
accessory ; but a husband receiving his wife makes him
an accessory to her offence; a brother receiving his
brother may be accessory ; so a servant relieving his
master, &c.

The furnishing others with weapons, finding a felon
a horse for his journey, or relieving him with money or
victuals, knowing him to be a felon, will make persons
accessory.

If the owner of things stolen, after complaint to a
justice, take his goods, and consent to the escape of
the felon, or compound the offence, it is said he may be
accessory after the fact.

Though it is otherwise if done before such complaint
made.

Receiving an accessory to a felony, makes one acces*
sory to an accessory. — Hale* 9 Sum. 219.

The sovereign is in all cases the proper prosecutor
for every public offence, being considered as the centre
of majesty over the whole community, and is supposed
therefore to be the person chiefly injured by any in-*
fraction of public rights.

AND PUNISHMENTS. 69

Sect. 1. — Offences against the Queen and Government.

The principal offences known to our law are those
against the life and person of the sovereign, and against
the security of the state, and which are called Treason:
formerly this term was divided into high and petit trea-
son, but at present high treason is the only description
of that offence known to the law.

Treason in general signifies a betraying {proditio),
and is defined to be an offence committed against the
security of the queen or kingdom :

As to compass or imagine the death of the king,
queen regnant, queen consort, or prince, their eldest
son and heir; and declaring the same by some open
deed ;

Or to levy war against the queen in this realm :

Or to adhere to the queen's enemies, or give them
aid within the realm or without ;

Or to violate the queen regnant, or the king's wife,
or his eldest daughter unmarried, or the wife of the
prince ; this does not extend to a queen dowager or
princess dowager ;

Or to kill the chancellor, treasurer, or any of the
queen's justices of either bench, justices of assize, &c.
in their place doing their offices.

These were all declared treason by the statute 25 £•
S, c. 2, And an open act having a design to depose or
imprison the king, is an overt act to manifest a com-
passing of his death. — Fost.Cr, Law, 195, s. S.

The mere compassing is an act of the mind, and is
considered as the treason, the overt acts as the means
made use of to effectuate the intention of the heart ;

70 OF QFFENCEt

and as the overt act is the charge which must be alleged
and proved, it is that to which the prisoner must apply
his defence.

Conspiring the death of the king, or queen regnant,
providing weapons to effect it^ or sending letters to 9t*
cond it ; assembling people to take the king or queen
into their power, and writing to a foreign prince inciting
jto invasion, are ov^t acts. — Hale's P. C. 13.

A compassing by bare words was formerly held to
be no overt act of treason ; but since it has been ad-
judged otherwise ; where the words show a direct pur-
pose against the life of the king or queen regnsmt, then
they amount to an overt act of compassing or imagining
his death.*-£e/. Rep, 13 ; see Hale's P. C. Ill ; Hank.
P. C. 39^ ; Read. Stat* Law^ 146 ; Hensey's case in
Tost. 198, 202, s. 8 ; Bur. 642.

But the words must be attended or followed by some
consultation, meeting, or act, and then they are evidence
of the treasonable intentions of the party.

Words, though set down in writing, if kept privately
in a man's closet, are no overt act, except they are
published. — Haimk. P. C. 38, s. 32, but see Post. Cr.
Law, c. 1, p. 198.

The law judges every rebellion to be a plot against
the life of the sovereign, and also a deposing in itself.

And under compassing and imagining the death of
the king or queen regnant, intention of treason ^uroved
by circumstances, is punished as high treason; for
men's actions are governed by their intentions. — 5
Mod. 207, ^a.

A conspiring or compassing to levy war is not an
oven acty without a war levied defado ; but if a war be

AND PCTNISHMEKTS. 71

actually levied, the conspirators are traitors, although
not in arms.

And a conspiracy to levy war, it is said, will be evi-
dence of an overt act for compassing the king's death,
—3 InsU 14; FosL Cr. Law, 211.

Not only such persons as take up arms against the
king or queen regnant^ but all who in a violent manner
withstand his lawfid authority^ or attempt a reformation
of his government, do levy war against him.

Those that make an insurrection to redress any pub*
lie grievance, whether a real or pretended one, are said
to levy war against the king, and to be guilty of trea«
son, though they have no design against his person. —
Hawk. P. C. 37, s. 25.

And Lord Mansfield declared it to be the opinion of
the court, that an attempt by intimidation and violence
to force the repeal of a law, was a levying war against
the king, and high treason.^-^Doug. 570.

So where great numbers by force endeavour to re-
move certain persons from the king or queen regnant^
or to lay violent hands on a privy councillor or magis<«
trate for executing his office j or to change religion or
the law, to cast down all inclosures, &c.

But raising a fcnrce to burn, or throw down a parti-
cular indosure^ b^ng a grievance to men's private in**
terest, is only a riot«

Holding a castle against the queen's forces, is a
levying of war ; and keeping together a great number
of armed men against the express commands of the
king or queen regnant, has been held treason.-*— fos^.
219.

Persons who have joined with rebels pro tmore mor^
lis et reeesserunt ^^m cito painerunit are not guilty of

OmoBeaw.'^HMt Smn. 14; Hale's Pi C. i^-, thiK
Ctn Lom^ 1(K5.

The adhering to the queen's enemies^ is proved! by
giving to such any comfort or relief, or heing m eoui>-
eel with any to levy any sedkious wars.

To deliver or surrender up' the queen's castles "or
forts to an enemy for reward, &e. is an adherence to>
die queen's enemies and high treason. — "FosU %\^4 ' -

It has been adjudged that adhering to the queen'^
enemies is an adherence against her.

And as adhering to the enemies of the queen out of
the realm is treason, one beyond sea having solicited a
prince there to invade the kingdom, was held guihy of
high treason, and triable by statute. — 35 H, 8, c. 2.

So sending intelligence to an enemy of the destination
of our own armaments, or the particular state of our
own defences, is high treason, though the intelligence
never reaches him. — 1 Burr. 650; 6 Term, Rep. 5t7.

This may be inquired of and tried in the Court of
Queen*s Bench, or by special commission in any county
the queen shall appoint ; and the adherence out of the
realm must be alleged in some place in England. — 3
Inst. 11.

An enemy coming hostilely into England, shsdl be
dealt with as an enemy, and executed by martial law,,
or ransomed ; he cannot be arraigned for treason, be-
cause lie never was within the king's allegiance. — liiid,
. But a subject of the queen, assisting a foreign ene-
my, shall be dealt with as a traitor.

If on the qneen's subject becoming a rebel, one that
is out of the realm succours him, this is not an adhering*
to an enemy within the statute of Edw. 3.

When one knows another has committed treason,.

AND PUNUHMBNTS. 79

and does not reveal it to the queen, or some niagi»*
trate» that the offender may be brought to justice, by
our ancient law, it is high treason. — Bract, c. 3, s. 1 ;
Fast. Cr. Law, 195.

For the delay in discovering the treason was judged
as an assent to it : but now there must be an actual
assent to some outward act, to make concealing it trea-
son ; or wiU be only a misprision. — 1 4* 2 P. 4* M*
ۥ 10.

A person has notice of a meeting of conspirators,
goes into their company, and hears their treasonable
consultation, and conceals it; this is treason. — Fost.
Cr. LaWf 195.

And so it is where one by accident has been in such
company, and heard their discourse, if he meets them
a second time ; which shows an approbation thereof. —
See KeL U.

Though if one is told in general that there will be a
rising or rebellion, and does not know the persons conr
cemed, or the place where, &c. this may be concealed,
and not be treason or misprision.— JBTawA:. 56.

Violating a king's wife was high treason at common
law ; because it destroyed the certainty of the king's
issue, and raised contentions about the succession of
the crown.

If the queen consort consents, it is treason in her ;
but this extends not to a queen dowager. The same
law of the prince's wife; to violate whom is only
treason during the marriage ; the eldest daughter of
the king is she that is then living and not married at
the time of the violation.

And though there was an elder than her, who died
without issue ; because now she has a right to the in*

£

74 OV 0TVKV0S9

heritance oi tbe crown, on finlare of tiie ksue male.—*
3 /n^^ 9.

Treason against thelrfe of the queen consort must
be also during coverture, and does not extend to a
dowager queen.

In every case of treason that relates to the hinges
person there niust be overt acts of it ; which are to be
made appear by plain and sufficient proaf, and not by
conjectures.

The offender must be lawfully attainted thereof,
either by confession, or by his peers in his life-time ;

And, therefore, if a person be slain in open war, he
shall forfeit nothing, nor can he be attaint in such a
case, but by parliament. — Hale's P. C. 10.

Infants within the age of discretion, and persons rum
compos mentis, cannot be guilty of treason ; so that if a
traitor becomes nan compos before conviction, he may
not be arraigned, and if after, shall not be executed.
Ibid.

A person indicted for high treason, is to have a copy
of his indictment, and list of witnesses, five days before
trial, and shall be admitted to make a full defence, by
counsel learned in the law^ and by lawful witnesses,
&c. — Fro8t\s case, argued in Court of Exchequer, Hil.
T. 1840.

And there must be two witnesses to the same overt
act, or two acts of the same treason, produced face to
fiKe, to make out the treason against him. — 7 Wm 5,
c« 3.

All are principals in high treason ; and on an at<-
tainder of treason, the judgment in all cases, except
for counterfeiting the coin, is^ that

AND VUmaBDISKTS. 79

The offender sliidl be drawn on ft hurdle or iMge
to the place of esecution.

And there be hanged by the neck, but cut dovm
ahvie, hifl howela ript up, taken out, and bamt before
his face ;

His head severed from his body, his body divided
into four quarters, and those be dieqposed of as the king
thinks fit Though where a pear commits treason, die
king usually remits all but beheading. — 3 Inst. c. lOK

To prmt or publish tediiiauf libels against the queen
or her government are grave miademeanors, and the
punishment for a seditious libel is fine and imprison*
ment.

A man may lawfully discuss the measures adopted
by the queen and her ministers, but it must be done
fiiirly, temperately, and with decency, without attribute
ing corrupt motives. — R. v. Lambert , 2 Camp^ 398.

If a man curse the queen, wish her ill, or give out
scmdaloifis stories coneeming her, it is sedition. — R, v.
Harvey, 2 B. ^ C. 257.

So ako if he deny die queen's right to the throne in
common discourse. — 4 BL Com, 423.

Whether a defendant intended to alienate* the a£&i>
dons of the people from the government or queen, or
not, is immaterial.

The administering or taking unlawful oaths is a felony
by the statute of 37 Geo. 3, c. 123, and the punishment
for 8«ch of&nce is tranaportadon for seven years*

Unlawful oaths are —

1st. To engage in some malicioos or seditious pur*

E 2

1$ OF Off7EK6ES

Sod. To disturb die public peace.

Srd. To be of some association or confederacy for
that purpose.

4th. Not to reveal or disclose unlawful combinatioos
or illegal engagements.

Inciting to mutiny is also a felony, and is punishable
with transportation for life, or not less than fifteen
years, or imprisonment f<Nr not more than three yearSk
—7 Will.4 ^ I Vict. c. 91.

This ofience is an endeavour to seduce persons serv-
ing in the army or navy to do any malicious act, or to
commit any traitorous practice.

The crime of inducing soldiers to desert is punishable
by 6 Geo. 4, c. 5.

A sailor or soldier in hospital is nevertheless a per-
won serving in her majesty's forces. — R, v. Tiemey, R,
4- R. 74.

EmhezzUng the queenU stores is punishable with trans-
portation, or imprisonment with or without hard labour.

There are also several statutes in force making it
punishable for having possession of any of the queen's
«tores, or selling or receiving the same ; and persons
buying stores of the commissioners of the navy or ord-
nance must have a certificate firom them of such sale
being made. — 9 4* 10 Will, d^ c. 41, &c.

Counterfeiting the Great Seal or Privy Seal is treason
by Stat. 1 1 Geo. 4 4* 1 Will. 4» c. 66, and punishable
by death.

And affixing the great seal without warrant, or
takii^ off the wax impressed from one patent, and Bxy-

AND PVNI8HM&KT8, 7t

ing it to another, or erasing any thing but of a patent
and adding new matter, although not a counterfeiting
and treason within, is a great misprision. — Hede*8 Sum,
18 ; 3 Imt. IQ.

Persons that aid and consent to the counterfeiting
the great seal, are it appears equally guilty with the
actors.

Counterfeiting the privy signet, or sign manual, \%
also treason within the act ahove mentioned, and made
punishable in like manner.

Forging or Counterfeiting the Queen's Gold or Siher
Coin, was treason by the common law ; but by statute
2 WllL 4, c. 34, the counterfeiting, clipping, and filing
money, or current coin of this kingdom, is now a fe»
lony and punishable by transportation or imprisonment,
and with or without hard labour.

If any person bring into the realm counterfeit money,
it is felony within the statute of 2 WiU, c. 34, s. 19.
But then it must be according to the similitude and
likeness of English money, and brought from some fo-
reign realm, knowing it to be false, and be uttered in
payment.

The bare forging of the king*s coin, without uttering,
is felony.

The making of any stamp or die, for coining, except
by persons employed in the mint, or conveying them
from thence, is high treason ; and colouring metal re-
sembling coin like gold or silver, or marking on the
edges, is likewise treason by 8 ^ 9 WllL 3, c- ?6:

Persons washing, gilding, or colouring any gold or
silver coin of the realm, or altering the impressions so
as to make them resemble a sovereign or half a novh^

78 ororvEifO£«

teign, are guilty of felohy by the act of £ WtU, 4,
e. 94.

And those who tender m payment any eoontfedbit
coin knowingly, which is called uttering counterfeit
coin, shall be imprisoned, with or without hard labour.

Counterfeiting the copper coin is not felony^ but a
misdemeanor ; the offenders are liable to be imprisoned
for. a term not exceeding one year«

There are various other offences under the head of
coining, all of which are made punishable by transpor-
tation or imprisonment, viz. having in possession three
or four pieces of counterfeit coin, with intent to utter the
same; — being possessed of and making puncheons,
collars, presses, and other tools for coining money; —
-conveying coining tools out of the queen's mint, &c*

The counterfeiting foreign gold and silver coin is
made a felony by the stat. S7 Geo. S, c. 126, and is
also made by transportation for any term not exceed-
ing seven years.

The importation and uttering of counterfeit foreign
-coin are also distinct fdonies, and are punishable as in
the last instance.

In the instances of uttering base coin a second time
after previous conviction, the offender is made liable to a
longer term of punishment than for the first offence.

Any persons, may cut or break pieces of silver mo-
ney suspected to be counterfeit, or uidawfully di-
minished ; but if they prove good coin, shall stand to
the loss.— & 4-10 fTUl. 3, c. 21.

AND PUmSBMBNTS. 76

Sect. 2. — Offences against the Person.

The xiext crime is Murder, which is a wilful and fe*
lonious killing of another, upon malice a&rethou^t.

This.ofPence may be committed in diveis ways :
As by weapon, crushing, or bruising ;
By shooting, smothering, or poisoning ;
And by stranglii]^, starving, &c.

To constitute the crime of murder these things must
concur : that it be committed by a person of sound
memory and discretion at the time ; it must be an un*
lawful killing; the person killed must be a reasonable
creature, in being, and under the king's peace ; and
lastly, it must be done with malice aforethought, which
may be implied as well as expressed. — 4 BL Com. 195.

But the person wounded or hurt must die within a
year and a day after the fact committed, or the law will
presume he died a natural death.

If in that time the party dies, although it be by
disorderly livings the wound, or other injury, will be
judged the principal cause of his death, to make it
murder. — Kel. 26,

Where a man that is non compos kills another per^
son^ that is not murder. It is the same of a lunatic
durkig his lunacy. But he that incites a madman to
kill a person, is a principal murderer.

Aad if one that is drunk killeth another, it is &lony
and murder by our law. — Hale's Sum* 43.

A person under the age of discretion kills a mai^ it
-is not felony ; though if by circumstances it appears an
in&nt under twelve years old could distinguish good
and evil, and knew what he did, if he kill another, it
may be inuxder; as if he hide the dead body,inake ex-
cuses, &c.

80 OF OFFENCS8

It IS not the bare killing, but malice, that makes the
crime of murder, and the malice must be of corporal
damage to the party ; and if it be not continuing till
the death, it is no murder. — HMs F. C, 49,

This malice is either express or it is implied.

The express malice is, when it i& evidently proved
there was some ill-will or old grudge before the killing,
and the fact was committed with a sedate mind, and a
former design of doing it.

And implied malice is, where a person kills another
having nothing to defend himself; as in going along a
street, over a stile« or the like.

If a killing or murder be perpetrated through a di-
rect purpose to inflict some personal injury to the per-
son slain, it is said to be properly of express malice. —
KeL 126.

As where a man in cool blood maliciously and deli-
berately beats another in such a manner, beyond any
apparent design of chastisement, that he dies ;

In that case it is murder by express malice, though
Jie did not intend to kiU him ;

For if a person voluntarily commits any violent or
cruel act, which is attended by death, in judgment of
law he is looked upon to do it of malice aforethought*

And where one executes his revenge in a cruel man-
ner, with a dangerous weapon, and shows a malicious
design of doing mischief, and death ensuea thereop, it
is express malice and murder from the very nature of
tbe&cC— £e2.127.

In cases of poiaonii^» and where one man kills ano-
ther without any provocation, malice is plainly implied*
If one resolves to kill the first persoa he meets, and
•kills him acoordin^y, it is murder, though he knew

AMD PUNISHMSNT8, 81

him not ; for there malice is implied against all iQaa*
kind.

One lays poison to kill a certain person, and another
takes it and dies, it is murder ; it would be otherwise
if laid to kill rats«

And if A., bearing malice to B., strikes or shoots at
him^ but misseth him, and kills C, this will be murder
in A. ; and if it were without malice prepense, then man*
slaughter.

In such case the malice intended to one, makes the
death of another upon that malice, murder ; and qua-
lifies the act as if it had its due effect.

If a man does a thing that apparently must introduce
harm ; as where he runs among a multitude of people
with a horse used to strike, &c. and one is killed, it is
murder, if done with an intent to do harm.

For an intention of evil, though not against a par*
ticular person, makes a malice, and the fact thereon i»
murder. — Hale*8 P. C.

A person finds a boy stealing wood ; he bound him
to his horse-tail, the horse ran away with him, and killed
the child, it was adjudged murder.

The causing an abortion, by giving a potion to, or
striking a woman big with child, was formerly murder;
but now it is a great misprision only, unless such child
be born alive, and die of the bruise, and is made felony
by 7 ma. 4^^ 1 Fie. c. 85.

Formerly where the death of. a bastard newly bom
was concealed, it was supposed to have been murdered;
but now upon trials of women charged with murder^ and
the concealment of the birth of their bastard children, the
same rules of evidence are observed a6 iti 6iher trials
for murder; but if acquitted of the murdei^ she may

'is Ot l>FFS!VGE«

-1m benteneed to improonnient %r concettlmbtit of the
birth.

If an infant be laid under leaves of trees, and snared
to foe destroyed by Termin, or a sick man in the «<M,
whereof he dies, either are a killing. — 8 Inst. 48.

Of Murder, by Ccmbat and DwelUngJ] — In case two

-^persons fight in cool blood, on a former quarrel, and

one of them is killed; and where upon a sudden falling

out, one appears to be master of his temper^ and kills

-another, it will be a murder.

For where there is a fighting between two, on such
precedent quarrel, it may be presumed to be on malice
prepensed.

And though two persons fall out early in the morn-
ing, and meet in the afternoon of the same day, if one
be killed, it is murder, for their after meeting is of
malice.

But if A. and B. are at malice, and reconciled, and
after upon a new occasion they fall out, and B. is kflled,
it is held to be no murder.

So it is where they combat on malice, and being
parted, afterwards they meet and fight upon a sudden,
send one kills the other, by some it is not murder, be-
cause the first malice is satisfied. — Hale*s Sum, 49.

Yet if the party killed, in the first combat had
wounded the party slaying, it might be otherwise.

If there be a quarrel between two persons, and one
challenges the other, who declines meeting him, but at
length, upon importunity, and to vindicate his repu-
tation, meets and fights, and kills the chaUenger, it is
murder. — Kel. 27,

AND F0NI8S1CENTS. 88

Though here, if the person cbaBenged refuse to meet,
and saith he shall go to-morrow to such a town, and
being assaulted by the way, he kills tbe challenger, it
is manslaughter only.

Where two persons, A. and B., fall out, and on a
challenge they appoint the field, and each takes his se-
cond with him, if A. kills B. this is certainly murder
in A.'s second; and it hath been also adjudged murder
in the other second ; but this last seems otherwise ac«
cording to Hale*s Sum. 51.

It is said by some that the seconds of the party killed
are equally guilty of murder^ by reason of the encou-
ragement which they gave by joining with him.

A. and B. felling out on a sudden, they presently
agree to fight, and each fetches a weapon, then they go
Into the field, and one kills the other, this is only man-
slaughter, because the blood never cooled.

It is otherwise if they appoint to fight the next day,
or at any other time.

If there be malice between A. and B. and upon that
malice they meet and fight, here, though A. gives the
first blow, yet if B. kill him, it will be murder. — Hule^s
Sum. 47.

In the common law it is of no signification who begins
the quarrel, or gives the first stroke ; and no words,
though ever so reproachful, are a sufficient provocation
to extenuate the crime of murder ;

But if angry words pass between two persons, and
one pulls the other by the nose, whereupon the person
assaulted kills him immediately, it is but manslaughter,
from such a sudden quarrel.

If a man provoked by words or gestures, makes a
push at a person before his sword is drawn, and a fight

I

I

I
Sir or 0»BMC£8

ensues, wherein he wko loade the assault kills the other,
it ]8 murder :

Here» in case he had made na push till the other's
sword was drawn, it would have heen only manslaughter
in the person killing.

, A person assaults another mth malice, though he be
afterwards driven by the other to the wall, and there be
kills him in his own defence, it is murder by reason of
his first mtent.

In this case if the party assaulted fly to the wall^ and
being still pursued, he kill the other, it is only man*
slaughter.

Two having malice prepense fight, and the servant
of one of them not acquainted with the malice, takes
part with his master, and kills the other ; this, is mup-
der in the master, and but manslaughter in the sevvant;

But when there is a conspiracy to kill a man, but no
malice against his servant, if the servant be slain, the
malice against the master shall be adjudged to extend
to his servant, the killing of whom is murder.

If two or more come together to kill, rob, or beat a
man, or to commit a riot, and one of them kills a per^
son, it is murder in all those of that party that are pie-^ >
sent, aiding or abetting thereto, or that were ready to
aid him, though but lookers on ;

All will be said to intend the murder ; but it is either-
wise if the lookers on came there by chance.

If offenders come into a park, and the park-keeper

shoots at them, whereupon they fly, but he pursue^

and they kill him, it is murder in all; for the first entry

was with a malicious intent.

. In robbing a park and committing murder, all ace

AND PI7KI8HHBNTS.

h^

held to^ be present that are in the same park, though
half a mile distant and out of view.
. If any person stand by and encourage another to slay
a naoar or where one comes with others on purpose to
kill him, and stands by till the fact is done, it is murder
is all present.

Kflling a person endeavouring to part others fight-
ing, though without any evQ intention against him, is
murder.

And where two men are fighting, if other persons
looking on do not endeavour to part them ; or to ap-
prehend the murderer, if one be killed ; they may be
indicted and fined. — Noy,

Where any magistrate or minister of justice in the
execution of his office, sheriff, constable^ or watchman
in doing his duty, or any one that comes in assistance
of the king's officers, is killed, it is murder.

And here a person shall not be excused, by alleging
that what he did was in a sudden affray, &c.

If a bailiff is killed, in executing a writ, or process,
or a lawful warrant, though the process be erroneous,
or he do not produce his warrant if he be a bailiff
£omi|t}0nly known^ it will be murder ;
' Btft here if the officer doth that which is unwarrant-
able, as if he break open the door of a house or window,
teairest a person in a civil case; or if he arrests a wrong
person, or one upon a Sunday, &c., these acts are un-
lawfuV ac^d it is no murder, but only manslaughter to
mihim«

Justifiable Homicide.'] — If a man, without any provo-
catkn, is assaulted any where by another, in such' a
manner that it plainly shows an intent to murder him.

86 OF OFFENCES

as by pasatng at bim witb a drawn sword^ &c., be waj
justify killing sucb assaHant.

Wbere one attempts to commit marder^ robbery, or
otber felony, a man or any of his servants may lawfully
kill bim. So officers endeayouring to disperse a mob,
by Stat. 1 Geo. 1, c. 5.

Likewise if a woman kills a man, wbo attempts to
commit a rape upon her, she may justify the doing it.
— fo*f. 274.

Rioters standing in opposition to a justice's command,
the killing them is justifiable.

So if a felon will not suffer himself to be arrested, or
if he flies for it, being pursued upon a hue and cry ; or
where a prisoner assaults such as conduct him to gaol,
or his gaoler in endeavouring to escape, &c. killing such
may be justified. — 1 Hale's P. C. 494.

But this is only when an offender cannot be taken or
secured without killing, and there must be in all such
cases an apparent necessity.

And if a prisoner by duress of the gaoler comes to
an untimely end, it will be murder. — Hale^s Sum. 47 ;
Hale's P. C. 466; 2 Ld. Raym. 1578.

There is one kind of killing excusable, where a man
kills another ex necessitate^ merely in his own defence ;
and another^ when it happens by misadventure.

MansloHghter is where a person is killed upon a sud-
den falling out, without malice :

Or when one commits a voluntary and unlawful act,
but without any deliberate intention to do it : and for
this crime the offender formerly had the benefit of clergy
for the first o£Pence.

"Where two suddenly fall out and fight, and one breaks
bis sword, on which a stander-by lends him another.

ANB VUAJMBMVNTS. 87

wfaeiewitk the adveiisry is kilkd,it is maodougiiter m
both the killer and the stranger.

And if a man in vindication of his friend, who is as*
^Mfidtdd by anothar, presently takes up an instninient
-and kills the other, sueh act is manslaaghter, — 1 Haivk.
F.C.

If a man is taken in adtdtery with anodier person's
wife, and the husband presently kills the adulterer, ^iis
is a great provocation^ and makes it but manslaughter.
—Kel. 137, pi. 4 ; Ventr. 158, 159 ; T. Raym. 21« ; 2
Keh. Rep. 8^9, pi. 49 ; Haadc. P. C. 8£, pi. %Q ; lost.
296.

Two persons strive for the wall in a street, and one
kills the other, it is manslaughter, and so it is if two
play at foils, and one kill the other* — Holers Sum, 57*

A man shoots off a gun in a city, or highway, which
endangers the life of some person, and one is killed, it
''f^ manslaughter by the common law.

And if one throw stones over a wall, in a place where
persons oflen resort, or at another in play, and kill any
person ; if it be daae without any evil intention, it is
manslaughter.

It is not murder, because there is no malicious inten-
tion to hurt ; nor per infortwrntany as he was doing an
unlawful act.

Where a person shooting at the tame &wl of another,
vrhich is an unlawfol act, kills a stander-hy, it is said to
be murder in such person. — Fott. £58.

If he shoot at a wild fowl, hare, &:c. and be not qua-
lified to keep a gun, or kill game, and kills any person,
it is manslaughter. But see Fo3t. 252*

And if he is qualified to keep a gun, which makes

$S OV OFFENCES

ike intended act lawfidi it is only cbancemedley.-r-S
Inst,

Ckancemedley and Se defendendo is where a man
is doing a lawful act, without any intent of hurt to an-
other, and one is casually killed therehy.

This may be in divers instances ; as where a person
casts a stone, or shoots an arrow in the fields, or other
open place, and they happen to strike and wound a man,
of which he dies.

If one be cutting down a tree, and the hatchet-head
flies off, and kills a person ; or where he is doing a
lawful thing that may cause danger, and gives warning,
after which a man is killed ; these accidental killings
are chanceraedley. — HaWs Sum. 31.

So it also is, where a master in correcting his ser-
vant, or a schoolmaster his scholar, or an officer whip-
ping a criminal, in a reasonable manner, happens to
occasion their death.

It is likewise called manslaughter by misadventure^ for
which the offender shall have his pardon of course.

Se defendendo is where one kills another in his own
defence, being under an inevitable necessity of doing
what he did.

And any person, in his just defence, may kill others
for the safety of his life ; but if malice be coloured un-
der a pretence of necessity, or one kill another before
be need to do it, it may be mdrder or manslaughter.

If a person on some sudden falling out be attacked,
and before a mortal wound is given he flies to the wall,
or other unpassable placet as far as he can, to save
himself, but being still pursued kills the aggressor, this
is se defendendo.

AND PUNISHMENTS. 69

In this homicide^ the party assaulted is not excused,
unless he give back to the wall.

But if the assault be so fierce and violent, and in
such a place, that giving back would endanger his life,
then he need not give back, to excuse the defence. —
Hale's Sum. 41.

If A. assaults B. upon malice, who retreats to the
wall, and then in his own defence kiUs A. ; here, if it be
in the highway, he shall be discharged ; but if not, itjs
ted^endendo.

Though in case A. retreat back to the wall, and there
kills B., it is murder.

. . A man that kills another by misadventure, has of
course his pardon : but if a person be only wounded,
an action of trespass may be brought; and he shall have
the same judgment as if done of malice.

For in that case the law takes notice of the damage
of the party wronged, and not of the malicious intent,
aa in capital cases.

Felo de se, in our law, is where a man lays violent
hai^ds on and kills himself.

As in cases of murder, the death must ensue within a
year and day after the stroke^ &c. The act must be
deliberate, and purposely done; and the person that
connnits it must be of the age of discretion, and compos
fnentis^ ox it will not be felony.

Therefore if a lunatic, during his lunacy, one dis-
t;racted by a disease, an idiot, or infant, kills himself,
none of these are felo de se.

A man that persuades another to kill him does not
•come under this name ; his assent being void in law,
and the person killing him judged a murderer.

Yet it is felo de se, where one maliciously endeavour*

90 OW uniEKCES

mg to kill another, fidk upon his own vword, wherehy
he kills himself ; hut here he is to be the oidj ^getit.

On a verdict found of fe^ de se b^re the covonery
the ofi^nder forfeits all his goods and cbatteb to idie
'king, lor the loss of a subject and breach of the peace :
and by custom the body is buried in the highway, &&

But the forfeiture is often saved by the jury's fa-
vourable finding the fact to be lunacy^ — Hawbhu^

« There is a maihem or mainnng, that is felony by our
law.

As where any person on malice forethought, and ly-
ing in wait, cuts ofiTthe nose, puts out the eye, disables
the tongue, or cuts off or disables any limb or member
of another, with intent to maim or disfigure him.

An assault is an attempt to commit a forcible crime
against the person of another : such as an attempt to
•commit a battery, murder, robbery, rape.

Striking at a person with a stick or fist, although the
party misses his aim, is an assault. — £ Roll, Ah.

So also is the presenting a gun at a man, or pointing
a pitchfork at him within reach of it.'— 1 Hawk, &ft.

If parish officers cut off the hair of a pauper in the
poorhouse by force it is an assault. — Forde v. Skinner,
^C.SfP. 239.

If one person advances towards another in a threaten-
ing attitude, and with intent to strike, and he is stopped
before the blow takes effect, it is an assault. — Stephens
V. Myersy ^C.^P. 349.

A battery 9 in the legal signification of the term, is a
(beating and woundii^, and a beating is not merely to
strike forcibly, but -every tonchipg, however tnEiBg, ia

AND FDinBHMSKTS.

»i

an angry, mde, or revengeful manner. Fcnr instance,
holding a man by tiie arm and spitting in Jiia ikoe, atrik-
ing a horse npon which he is n&mg, thmsting or push-
ing him in anger* — 6 Mod, 172.

A defendant may justify a battery by proving that it
was done in defence of the possession of his house or
land, 2 Roll. Ab. 549, or to prevent the destmctbn of
his goods, &c.

But in cases of trespass, the owner of the house or
land must first request the trespasser to depart before
he can lawfully lay hands upon him, and then if he re-
fuses, so much force only must be used as is necessary
to remove him.

If the trespasser use force however, then the owner
may oppose force to force. — % Salk, 641.

Attempting to drown is made felony by the stat. 7
WiU. 4^1 Vict. c. 85, and is punished by transporta-
tion for life^ or for not less than fifleen years, or by
imprisonment not exceeding three years ; and

Attempting to poison is in like manner felony, and is
made subject to the same punishments.

Sending explosive substances. — Persons guilty of so
doing, with intent to do bodily harm to any other per-
son, are guilty of felony, and liable to be transported
•for life, or to imprisonment. — 7 ffilL 4^1 Fict. c. 85,
s. 5.

Throning cvrrosioe Jtmd, with the like intent, is also
in like manner punishable with transportation, or im-
'prisonment, at the discretion of the court.

99 OF OFFENCES

The Stat, of 7 WtU. 4^1 rtct. c. 85, makes it a
crime of felony, punishable with death, when any per-
son wilfully and maliciously stabs or cuts another with
intent to murder, rob, maim, disfigure, or disable him,
if such acts were committed under such circumstances
as would have constituted the crime of murder if death
had ensued.

The same statute also makes it a similar offence un-
der the same circumstances, to present or level at any
one any kind of loaded arms, and attempt to discharge
the same by drawing the trigger, or in any other man-'
ner, with intent to murder, rob, &c. and all counsellors,
aiders, and abettors.

In these cases, a voluntary act the law judges to be
done out of malice : as where one kills a person without
provocation.

If a man maimed or disabled himself, it was said
that he might be indicted and fined for it at the king's
suit.

Assaulting magistrates and officers in the preservation
4}f wrecks, is a misdemeanour and punishable with trans-
portation for seven years or imprisonment. — 9 Geo. 4,
c. 31.

Impeding persons escaping from wrecks, although by
no means a common crime, is yet included in the statute
book, and punished with transportation and imprison-
ment.— 7 fVm. 4 4- 1 Vict. c. 89.

AssauUing Peace and Revenue Officers ; assaults with
intent to commit felcmy, or in pursuance of a conspiracy
to raise wages, compulsory forcing of seamen on shore,

AND P0KI8HKSKTS. 90

faulting deer-keepers, assaufaiuig gamekeepersi are
also severally made punishable by various acts of par*
liament passed in the dth year of Geo. 4*

By the Srd & 4th WiU, 4, c 53, persons assaulting
t;ustom-house and excise officers in the execution of
llieir duty, are guilty of misdexneanours, and may be
transported or imprisoned.

Abduction of women on account of their fortunes,, or
of children under the age of sixteen years against the
consent of their parents, renders the offender liable. to
indictment for misdemeanour, and to punishment by
fine and imprisonment, or both. — 9 Geo* 4, c. 31.

It is no legal excuse that a defendant made use of no
other means than the blandishments of a lover to induce
a child under sixteen years of age to elope with liim.— «-
R» V. TtvisletoHf 1 Lev. 257.

Stealing Children under ten years is felony by 9 Geo.
4, c. 31, and made punishable by transportation for
seven years or imprisonment*

Ravishing Women constitutes the crime of Rapef and
is where a man hath an unlawful and carnal knowledge
of a woman by force and against her will, which offence
is felony, both by the common and statute law, and is
punii^ed by death.

It is enacted by the 9 Geo. 4, c. 31, that whosoever
shall carnally know any woman child under ten years
of age, he shall suffer death as a felon ; and here it
doth not signify whether such child consented or were
Ibrced ; but it must be proved that the offender entered
her body.

91 .or OFFBXGBS

To canudfyknow aduM above ten and under twrire
years of age eren with ker cooaoit is a miadeaieantfiiry
and punishable by imprisonment eidier with or witfaooit
hard kbour. — 9 Geo, 4, c. 31 » s. 17.

In cue of a rape oommitted, it is no excuse or miti-
gation of the rairisher's offence that the woman at last
yielded to the violence, and consented, either loiter the
act or before, if such her consent was forced by fear of
death or imprisonment.

Or that a woman was a common strumpet, who is
nevertheless under the protection of the law, aeod may
be injured in her body.

But it is said by some authors to be evidence of a
woman's consent that she was a common whore.

And it is a strong presumption against any woman
that she made no complaint in a reasonable time after
the injury, for which our ancient laws mention fbrtj
days.

If she conceals the fact for any long time, it may
argue a consent.' — Hawk. P, C. 108.

A woman ravished may prosecute, and is allowed to
be witness in her own case, but the woman's positive
OBtti of a rape, without concurring circumstances of the
fact, and signs of injury received* is seldom credited.

Because, says HtUef there are divers instances of
rapes that have been fuUy proved, but were afterwards
discovered to be malicious contrivances. — HaUrs P, C.

If a man can prove an aUbi, as that be was at another
place, or in another company, at the time she charges
him with the ofi&nce, this will invalidate her oath ; so
it is if she be wrong in the description of the pkce
where done.

AND FQViaBliXVTS. 95

Or when she «weani the &ct to he oommittad wfaeret
it waft hnpouihle he could have access at that tiiiiey aa
if the room was locked up and the key ia the keeping
of another peraon, &c. — Ift Fin. Abr. 247.

The aiders and ahettors in committing a rape are
considered as principals.

In Lord Audle3r's case, he was indicted and exe-
cated for assisting a servant in ravishing his own wifis,
and she at the trial was admitted as a witness against
bim.

Anciently rape was punished hy the loss of eyes and
privy members, the offending parts.

The crime of Buggery or Sodomy is a carnal cc^u*
lation against nature : as of a man with a man, or man
or woman with a brute beast.

It is said, that formerly this vile and horrible offence
was punished with burning or burying alive ; it is now
felony by statute, in the agent and all that are present
aiding or abetting.

Also in the patient consenting, if he be within the
age of discretiim.

Persons that attempt to commit this crime undergo a
severe punishment of the pillory, &e.

Foirtescue is of opinion that this crime committed by
a man on a woman is felony. — FcrUs^ Rep. 91*

Assaults with intent to commit eith» of the two last
mentioned offences, are misdemeanours, and are pu-
nishable with imprisonment with or without hard la«
foouT, and prisoner to find sureties to keep the peace*

Hobbery with violence.'] — Whoever robs any persoui
and at the time of or immediately before such robbery^

96 OF OF1ENCB8

shall stab, cut, or wound such person, he shall be guilty
of felony, and being convicted thereof^ shall suffer death*
—7 Will. 4 4- 1 He. c. 87.

But judgment of death may be recorded, 4 Creo. 4,
c. 48, or the sentence may be commuted to trans-
portation.

Robbery by persons armed, and robbery attended by
threats of violence, are also included in the above sta*
tutes.

Robbery consists in the felonious and forcible taking
from the person of another, or in his presence against
his will, property of any value, by violence or putting
him in bodily fear. — 4 Black. Com. 24?.

And the prosecutor must actually prove that he was
in bodily fear, or such circumstances as the court and
jury may presume an apprehension of danger. — Fott.
P. C. US.

If a man knock another down and take his property
while he is insensible on the ground, it is robbery.—
Fo8t. US.

If one man takes another's child, and threaten to
destroy it, unless the other gives him money, it is rob-
bery.— 2 East, P. C. 735.

And if any thing is taken from another's person,
without putting in fear, which distinguishes this crime,
it is properly no robbery, but felony. — S Inst. c. 16.

There is both a taking in deed, being the very act ;
and in law, as where a robber compels a man for fear
of death to swear he will bring him a sum of money^
which he delivers to the other ; this is a taking and
robbery.

AND PUKI8HMENTS. ^7

If a k'obber bids a penom on the higkway deliver faw
nnoney, though it be either with or without weapcm
drawn, and the person gives it him, it is a felonious
taking to make this crime.

And t^here one with a pistol in his hand, demands
money of another, if afterwards he prays alms, and the
sattae being given accordingly^ it is a robbery ; being
accompanied with circumstances of terror, that cause
the person to part with his money. — Hawk. P» C. 96,

A man pursued by a highwa3rman, endeavours to
make his escape, but lets Ml his purse, &c., which the
robber takes up, this is taking from his person.

It is the same, though in striving he lets the bag or
purse fall again, and leaves it there ; or if finding little
dierein, he delivers it with all the money again to the
party : because the offender had the thing in his pos-
session, and continuance is not required. — HaWs Sum,
72.

To take goods from a servant, in sight of his roaster,
is adjudged a robbery of the master ; and taking away
a person's horse standing by him, or of any thing be-
longing to him, in his presence, and against hiiT will, is
robbery.

For the taking a thing in the presence, is in law a
taking from the person.

But 'if one leaves his horse tied to a gate, and steps
aside ^ or if a carrier follows his horses at a distance,.
and they are taken away, this is not such a taking to
be robbery.

■ All that come in company to rob, being in the same
Ingbway, are principals, although one only actually do
it ; and though he rides away from the rest of the

9B OF OFFEKCBS

gangy and commits the robbery witboat tbeir know-
ledge.

Every one sball be esteemed to take tbe money, be-
cause they came together widi an intent to rob gome
person, and to assist each other.

Sect. 3. — Offences agamst Property.

Larceny^ from the French word Uarreanf is the
wrongful taking and carrying amvf die personal goods
of another, with a felonious intent to convert them to
the use of the offender, without consent of the owner.

This offence was formerly divided into grand and
petit larceny, which was a distinction made as to the
value of the property stolen, but this distinction was
abolished by die 8 Geo. 4, c. 29.

The punishment for this crime depends much upon
its magnitude, transportation or imprisonment of va-
rious terms being inflicted ; and if an offender is al-
ready under sentence of transportation, &c. for one
larceny, the Court may award tran^ortation or impri-
sonment for every subsequent ofienoe, oonnnencing at
the expiration of die former sentence. — 7 4r ^ G^* ^f
c. 2S.

Formerly there could be no larceny of any odier than
personal goods at common law.— 1 Hale, 510.

And therefore the severing and stealing at the same
time, of grass, wood, iron, &c. attached to the fireeholdy
was merely a trespass.

But now by various statutes these several offences

AND PUNISHMENTS. 99

are taken notice of as criminal acts, and made punish-
able in like manner as other larcenies.

No larceny at common law can be committed of ani-
TxaAsfene imtuTce, as deer and hares, or wild fowl and
rooks.

Yet if they Mre reclaimed, and may serve for food,
it is otherwise.

All valuable domestic animals, as horses, dogs, &c.
domit^e natarce, may be the subject of larceny ; so also
ar« fowls and poultry generally.

The taking and carrying away of the goods must be

felonious, and done ammo furandi 4 BL Com. 2S2;

but this is a matter for the jury to determine.

A roan stealing goods, and taking a horse from a
field, not with the intention of stealing it, but to get off
with stolen property, was held not to have stolen the
horse. — R, v. Crump, 1 Carr. 8^ P, 658.

If a man lose goods, and another finds them, and not
knowing the owner, converts them to his own use, it is
not larceny. — 3 Inst, 108.

But it is otherwise if the finder knows the owner ; as
where a carpenter is entrusted with a beaureau to mend,
finds money therein, and keeps it for his own use, it
was held to be larceny. — 2 Leach, 952,

Not only if one steal the goods of another, it is fe-
lony ; but if a third person feloniously takes them from
him^ such third person is a felon as to both the others.

Stealing of goods, which persons by contract are to
use ; or where a guest steals plate set before him at an
inn or tavern ; either of these are felony ; those that
have the charge of things, as of a chamber, 8tc., may
be also guilty of larceny.

In case a shopkeeper delivers goods to one, who pre-

F 2

IjOO of Of fences

tends to buy them, and he runs away with the things,
it is felony : but if a horse be lent to a man to go to a
certain place, he goes further, and then rides away with
the horse, it is not larceny, because he had at first a
lawful possession.

Yet it is held to be felony, if a jury find that the
party, at the time of hiring, intended to convert the
horse to his own use.

So when the possession of property is obtained by
any contrivance emimo furandi. — Leach's C Z. 189,
206, 329.

So where a coachman opens and embezzles a parcel
left in a hackney coach. — LeaclCs C. Z. 320.

If a carrier, after he has brought goods to the place
appointed, take them away privately, it is felony ; for
the possession which he had from the owner t;>eing de-
termined, he is a mere stranger. It is the same if he
carry the things to some other place than that agreed.

Where a tailor employed to make a suit of clothes
embezzles the cloth delivered to him for that purpose,
it is no felony : nor is it so where a servant goes away
with his master's goods, delivered to him, which is only
breach of trust.

This is by reason of the delivery ; and the possession
not being acquired animo furandi,

A married woman cannot be guilty of felony in steal-
ing her husband's goods ; though if she deliver them
to an adulterer, it is felony in him to receive them.

And if a feme covert commit felony in company with
her husband, it shall be presumed to be done by his
command and coercion, and she will be excused.

But it is otherwise where the wife steals goods alone

AND PUNISHMENTS. 101

without the knowledge of the husband ; then it is fe-
lony in her.

In felonious attempts, the least removing a thing, al-
though it be not quite carried off, is felony; as where
one takes things out of a box, and lays them on the
floor, but is apprehended before he gets away, &c. —
Hale^s Sum, 64.

To steal cats, which are of base nature, is not felony.

Burglary t from the Latin words burgi latrocinium^ is
where a person in the night time breaks and enters into
the mansion-house of another, to the intent to commit
felony within the same.

The hour must be specified therefore ; and the rule
is now, as established by statute of 7 Will. At ^ 1
Vict. c. 86, that the fact must appear to have been
committed between nine o'clock in the evening and six
o'clock in the morning.

To constitute a breaking, the entrance must be ob-
tained either by fraud, conspiracy, threats, or force;
there must be an actual entry either of the person of
the thief, or some instrument by which the felony is to
be conamitted ; and the entry must be with a felonious
intent. And it is burglary whether the felonious in-
tention be executed or not.

One of the servants in a house opened his lady's
chamber door (which was fastened with a brass bolt)
with design to commit a rape : and King, Chief Justice
of the Common Pleas, ruled it to be burglary, and
defendant was convicted and transported. — Sir, 481.
See Kel. SO, 67 ; Hut. 20, S^ ; Hale's P. C. 83, 562.

The like offence committed by day is called House--
breaking, to distinguish it from burglary.

102 #F omifCEs

Burglary may be comttiitted in a mansioiv-faoiise,
though all persons are out upon occasion : so if a man
hath two houses, and lives sometiines in one, and some-
times in the other ; but if the house he does not in-
habit is broken by any person in the night, it is bur-
glary.

A shop and out-buildings adjoining are pared of a
house ; and chambers in an inn of court ; or where
part of the house is divided from the rest, with a door
to the street : either of these are mansions ; and it is
burglary to break them.'—Hide's P. C. 82, S3.

In some cases there may be burglary without actual
breaking a house ; as where thieves pretend business
to get in by night, and the owner of the house (^ens
his door, and then they come in and rob the house« this
will be burglary in the ofienders.

If a criminal doth not break the house, but is within
and steals goods, and after opens the house on die in-
side, and goes out with the goods; or if one comes
down a chimney to rob the house, &c., it will be bur-
glary.

Where a person unlocks any door, or gets into any
house by the help of a key, or breaks the glass of wiuf
dows, or makes a hole in the waU, &c., in order to steal,
it is a breaking of the house.

And setting a foot over the threshold, putting a hand,
book, or pistol, within the window or door, is an entry
in law to make it burglary.

But a distinctfton has been made between eases where
the instrument which entered, was for the purpose of
breaking only, and not of taking the property. — 2
£iufs P. C. c. 15, s. 7.

But if a door be open, or hole made in the wall be*

ANJ> PUMSHlfZNTS. lOS

fiure, and tbe thief enteis and steals, or draws out
goods, this is not burglary by the common law.

In case a servant draws the latch of his master's
chamber in tbe night to rob him, it is a breaking ; and
if he opens the window to let in a thief, who comes in
and takes things, it is burglary in the stranger, and
robbery in hoth.-^Hale's P. C. 553 ; 2 Sir. 881.

Receiver* of Stolen Goods.y^By the 7 ^ 8 Geo. 4,
c. 29, persons receiving any chattel, money, valuable
security, or other prc^erty, the stealing or taking
whereof shall amount to a felony, such persons know-
ing the same to have been stolen, shall be guilty of
felony*

They may be indicted either as accessories after the
fact, or for substantive felonies.

The guilty knowledge required by the statute is
proved sometimes by the mouth of the original felon,
(who may foe examined as a witness for that purpose,)
or it may be inferred from other circumstances, such as
that the receiver bought them greatly under value! —
1 Haie, 619*

It is competent to the defendant to disprove guilt in
the principal felon. — Fo8t. 365.

An owner prosecuting a receiver or thief to convic-
tion is entitled to restitution of his property, except in
cases of negociable instruments transferred for valuable
consideration.

Punishment, transportation or imprisonment, with or
without solitary confinement*

Embezzlement is distinguished from larceny by the
fitct of the party defendant having received money or
goods in the first instance by virtue of his employment,

104 OF OFFENCES

and then feloniously appropriating the same to his own
use.

Such are the instances of servants, both public and
private, receiving monies and not accounting for them
to their employers.

A tradesman, however, who receives goods in the
common course of business, to be made up, or mended,
and instead of doing so sells them, does not commit the
offence of embezzlement, but merely a breach of trust.

Embezzlements by clerks and servants is provided
for by the 7^-8 Geo. 4, c. 29 ; those committed by
public servants are also made punishable by various
other statutes.

This offence is declared to be larceny, and is punish-
able with transportation in some instances, and in others
with imprisonment.

Cheating and obtaining goods hj false pretences are
constituted misdemeanors, under the 7 ^^ Geo, 4, c. 29,
and are punishable with transportation and imprison-
ment.

Until this statute had passed, a failure of justice fre-
quently arose from the subtle distinctions which existed
between larceny and fraud.

Arson is the crime of maliciously setting fire to and
burning any buildings or property.

And in order to constitute it an offence under the
statutes relating to this crime, it must appear that the
burning was done wilfully and maliciously, because
without it there would be no offence, either at common
law or by statute.

Lord Hale says, if any person, although he might be

AND PUNISHMENTS. 165

unqualified, were to shoot with a gun, and in so doing
were to set fire to the thatch of a house, yet it would
not amount to a felony. — 1 Hale^ 569.

If A. intending to set fire to the house of B. acci-
dentally fires another person's house, yet it would be
felony in A. — 1. Halcj 569.

It is seldom that the wilfulness of the burning is
proved directly, the jury in general have to draw their
own inferences from the defendant's conduct.

It is not necessary that the building or property
should be actually consumed, the destruction of any
part of the buildings or stacks, &c. described in the
indictment is sufficient. — 1 Hawk. c. 39.

The last statute relating to this crime is 7 Will. 4 &
1 Vict, c. 89, which is much more comprehensive than
any of the previous statutes.

The setting fire to plantations, growing crops of coni»
&c. is also a felony, and punishable with transportation
or imprisonment.

Malicious Mischief. "^ — If any person unlawfully and
maliciously cuts, breaks, destroys or damages any silk,
woollen, cotton, &c. in the loom, or any looms, machines
or engines for making the same, he is guilty of felony,
and being convicted thereof is rendered liable to trans-
portation for life, or not less than seven years. — 7 4* ^
Geo. 4, c. SO.

Drowning Mines^ and other injuries to mining pro-
perty, are made punishable by various sections of the
act last referred to.

Exhibiting False Signals, with intent to bring vessels

F 3

106 OF OFFENCES

into danger, is a capital felony by the 7 Wiil. 4 4*
1 Viet. c. 89.

Destroying Hop Binds maliciously^ renders the
offender liable to transportation or imprisonment, as
the court shall think fit. — 7 ^ 8 Geo. 4, c. 30.

Destroying Trees, ^^Bj the same statute, persons
convicted of cutting, breaking, barking, roodng up or
destroying trees, where the damage sustained exceeds
the sum of one pound, are guilty of lelony, and made
liable to transportation and imprisonment*

Forgery. "] — Until a very recent period this crime was
punishable with death, but by the 7 Will. 4 <^ 1 Vict.
c. 84, the capital punishment has been abolished, aad
transportation substituted for it.

The altering a part of a genuine instrument widi
intent to defraud, is a forgery. — R. v. Teague^ 2 Etui,
P. C. 979.

And whether the name forged be that of a fictitious
person, who never existed, or of a person actually ex-
isting, it is equally a forgery. — R, v. Lewis, Foster, 116.

But if a man has been known a long time by a fieti«
tious name, and draws a bill in that name, it will not be
a forgery.— ./J. v. Aickles, 2 East, P. C. 968.

The party whose name is forged is a good witness to
prove the forgery. — 9 Geo. 4, c. 32, s. 2.

If several persons unitedly execute and make a forged
instrument by severally performing a distinct part, they
are all guilty as principals. — R. v. Bingley, R, ^ i2.446«.

It is not necessary to prove that any person has
been actually defirauded by the forgery. — R, v. Cookey
estrange, 291.

AND FUKiaHUBNTS. 107

• If a jury are sadafied that the prisoner uttered a
forged instrument as true, meaning it to be taken as
such, they are bound to infer an intent to defraud. —
R. V. HiU, SC.^P. 274.

The present punishment for forgery is transportation
or imprisonment, at the discretion of the court. — 7
Wm. 4 4* 1 Vict. c. 84.

Sect. 4. — Offences against Public Justice,

Perjury,'] — Persons guilty of committing wilful and
corrupt perjury, or subornation of perjury, are liable
to transportation or imprisonment. — % Geo, 2, c. 25.

Formerly the offender^ when convicted, was made to
stand in the pillory, as part of the punishment^ but now
standing in the pillory has been abolished as a punish-
ment, by the 7 Will, ^ Sf I Vict. c. 23.

Sometimes prosecutions for perjury are directed by
^e judge against witnesses, examined upon trials at
nisi prius or general gaol delivery^ when there appears
to be good cause for such a prosecution. — See the 23
Geo. 2, c. xl.

There are several requisites in law which required to
be sustained in prosecutions for perjury ; ex. gratify
the perjury must be by reason of an oath taken in some
judicial proceeding. — 5 Mod. 348.

The oath must be taken before a competent jurisdic-
tion, for if it is taken before a person not having law^
fhl authority to adininister it, then no perjury can be
assigned upim it.< — 3 Insi, 165.

The part of the evidence upon which the perjury is

108 OF OFFENCES

assigned must be material to the matter under consi-
deration.— /J. V. Niclwl, IB.^ Aid. 21.

The oath or answer given must be false in fact. —
1 Hawk. c. 69.

And lastly, the false oath must be taken deliberately
and intentionally ; if done from inadvertence or mis-
take, it does not amount to perjury. — 1 Hawk. c. 69.

Bribing Constables is punishable with fine and impri-
sonment, and that also whether the bribe is accepted or
not. — 3 Inst. 147.

Receiving bribes at elections, municipal and parlia-
mentary, is also punishable with fine and imprisonment
under various statutes.

Misconduct of Officers of Justice. — Every malfeasance
or culpable nonfeasance of an officer of justice, with
relation to his office, is a misdemeanor at common law,
and is made punishable with fine and imprisonment. —
Cro. El. 654.

Compounding Felonies is a very great misdemeanor
in the eye of the law, on account of its manifest effect
to subvert public justice; it is made punishable with
fine and imprisonment, or both. — 1 Hawk. c. 59.

By the 18 Eliz. c. 5, the compounding informations
on penal statutes is also made a misdemeanor.

Fraudulent Bankruptcy is an ofience cognizant to
our laws, and a bankrupt may be indicted as a felon
for refusing to surrender himself, after notice in the
Gazette ; and being convicted thereof, is liable to
transportation or imprisonment. — 6 Geo. 4, c. 16,
s. 112.

AND PUNISHMENTS. 109

The same punishment may be also awarded against
a bankrupt for not discovering his property.

Returning from Tansportation. — Offenders returning
from transportation are liable to be transported for life.
—4 4-5 mil. 4, c. 67.

And persons discovering offenders of this description
are entitled to a reward of 20/., by 5 Geo, 4, c. 84, s. 22.

Very frequently, in cases of this description, the
identity of the party is the only issue which is difficult
of proof. The defendant, if at large before his time,
must show, if he can, that he is justified in so being,
by a commutation of his sentence or pardon.

Rescue of Prisoners^] — By the 1 4' - Oeo. 4, c. 88,
persons rescuing, or aiding and assisting in the rescue
of individuals charged with felony, or in custody on
suspicion of felony, are made liable to transportation
•or imprisonment.

Misprisions are those class of offences which are nei-
ther negative or positive, but which tend greatly to the
interference with public justice ; they consist of the
concealment of felonies and treasons which ought to be
revealed.

Sect. 5. — Offences against the Public Peace and

Religion,

Riot.'] — The 3 Geo. 4, c. 114, inflicts the punishment
of imprisonment and hard labour for this offence, which

110 OF OVTBVCBS

may also be attended bj fioe^ at the pleasing of the
court.

It must appear that three persons at least are pre-
sent, to constitute a riot. — ft Hamk, c. 47.

It must also be proved that the three or moi^e per-
sons were assembled together under such circumstances
as were calculated to excite terror in the minds of other
people.—/?. V. Hughes, 4 C, ^ P. 872.

It is not necessary that the Riot Act should be read
to constitute a riot.

The effect of the proclamation being read is to make
lliose persons guilty of felony who do not disperse
within one hour after it has been so read. — R. v. Furzeyf
6C. ^P. 81.

Riotously demolishing or beginning to demolish any
houses, chapels, or other buildings is of the highest
class of felonies ; and the punishment was death under
the 7 & 8 Geo. 4, cap. 30.

Under this act of parliament the jury must be satis-
fied of the intention of the rioters to pull down the
house or building in question ; an intention merely to
do some injury, and then to go away, is insufficient. —
R, V. Thomasy 4: C. ^ P. 237.

An Affray is a quarrelling and fighting between two
or more persons in the public streets or highways ; and
for which the offenders may be visited with fine or im-
prisonment, or both.

If the fighting is in private it does not constitute an
affray within the legal meaning of the term ; and no
threatening or quarrelsome words will in themselves
amount to an affray. — 1 Hawk, c. 68, s. 1.

AND mwauEKTs, 111

ForcMe Entry upon a Freehold is another description
of breach of the public peace specially taken notice of
and guarded against by the statute of 5 Rich, 2, cap. 8,
and is also, in like manner with the last-named offence,
punished with fine and imprisonment.

To constitute the forcible entry, actual violence must
be shown to have been used, such as breaking of win-
dows, doors, &c. — 1 Hawk, 64.

An entry by an open window, or by trick or artifice
practised on the owner, is not sufficient. — 1 Hawk. 64*

There must be such force, or such a show of force,
as is calculated to prevent resistance. — R. v. Smythy
5C. Sr P. 201.

Challenging to Fight, or sending challenges^ are alike
breaches of the public peace^ and are generally severely
dealt jiyith. This, like many other offences at common
law, is punished with fine and imprisonment.

Threatening Letters are specially provided for by sta-
tute 7 <^ 8 Geo. 4, c. 29, and the sending them is
tjiereby declared to be felony, and subjects the offender
to transportation and imprisonment.

Dropping such a letter in a place where the prose-
cutor would pick it up, is a sending within the meaning
of the act.— /2. v. Lloyd, 2 E. P. C. 1123.

Libel. — The malicious defamation of any person,
made public by printing, pictures^ &c. in order to pro-
voke him to wrath, or to expose him to public hatred
or contempt, is a libel, and indictable as such at com-
mon law.

112 or OFFENCES

Wherever an action will lie for a libel without spe-
cial damage averred, an indictment will also lie. — Arch*
Cr. PL

Writings vilifying the characters of deceased persons
are punishable as libels, and may be made the subject
of indictment. — 5 Co, 125 a.

So also are writings which tend to degrade foreign
potentates, when they have a tendency to interrupt pa-
cific relations between this country and the foreign
power. — R. v. Peltier^ How. St, Trials,

And libels directed against bodies of men, without
mentioning particular individuals, are also punishable
by the criminal law.

A defendant cannot set up the truth of a libel as an
excuse for it, and as a defence to an indictment. — 5 Co,
125; 1 Hawk. cap. 73.

Hanging Individuals in Effigy is the same description
of offence as the last, and therefore punishable in like
manner by indictment.

Blasphemous Libels.'\-^The 9 <$* 10 Will. 3, c. 32,
was passed for the protection of the Christian religion
from the dangerous tendency of blasphemous libels,
and makes the offence of their publication punishable
with imprisonment.

Swearing and Cursing."] — For this offence persons are
liable to be fined, and in default of payment of the
fine to be imprisoned.

Disturbing Public Worship,"] — Persons wilfully, ma-
liciously, or contemptuously disturbing any meeting or

AND PUNISHMENTS. 113

congregation of persons assembled for the purposes of
religious worship, may be bound over by recognizance
to appear at the general quarter sessions of the peace,
and upon conviction may be fined 40^.

The statute extends to foreign Lutherans as weU as
other congregations. — 5 PeakCf iS2,

And a disturbance arising out of a contest for the
situation of a clerk^ &c. is a disturbance within the
meaning of the statute. — S, C.

Arresting a Clergyman going to perform Divine Ser^
vice, or during the time when the service is actually
performing, renders the party liable to punishment for
a misdemeanor, with fine and imprisonment, or both,
as the court shall award. — 9 Geo, 4, cap. 31, sec. 23.

ScuirilegeJ] — ^To break and enter, or steal property of
any description in any church or chapel, is felony, and
may be punished with transportation for life or for any
term of years not less than seven.

The chapels mentioned do not apply to the meeting-
houses of dissenters, but the protection of the statute
seems to be confined to chapels of the Church of Eng-
land.— K. V. Warren, 6 C.^P. 335.

Bigami/f in more legal phraseology termed polygamy,
is the marriage of a man to a woman during the life-
time of a former wife, or vice versd ; and is made a fe-
lony by Stat. 9 Geo. 4, cap. 31, sec. 22,

The party committing this offence must either be
indicted in the county where it was committed, or
where he is apprehended upon the charge.

The punishment for bigamy is transportation for

114 OM OFFSKCSa

seven yeara, or impriBomnent with or without bacd
labour not exceeding two yours.

Whether the former maniage was cdebrated in £n§^
land or abroad is immaterial. — 1 Uale^ 692.

But it must have been celebrated according to the
laws of the foreign country where it was solemnised*.

Sect. 6. — Offences against Trade, the public Police^ 4*c.

Smuggling,'] — ^Under this title there are several classes
of ofiences provided for by various statutes, and made
punishable thereby in several ways.

Where the offences are committed on the high seas,
the offenders may be brought to trial in any county
where they are found or brought on shore.

The principal offences enumerated in those statutes
which have been passed for the prevention of smuggling
are^ — making signals to smuggling vessels, $^4 WUL 4,
cap. 59, sec. 1£2, — being armed and assembled for the
purpose of assisting in running smuggled goods, same
statute, — shooting at vessels belonging to the royal
navy, — ^being in company with others with prohibited
goods, — being found armed near to navigable river.

All of which are declared to be felonies^ and aie
punishable with transportation or imprisonment.

Forestalling is still an offence punishable at common
law, — 1 EoH, 143, — and signifies the buying or oon-
tracting for any merchandise or victual coming in the
way to market ; or dissuading persons from bringing

AKB FTTNT6HMEKTS. 115

their goods or provisions diere, or persuading them to
enhance the price when there.

This ofience wa3 formerly prohibited by statute 5^6
Edhv, 6, cap. 14, but that statute was afterwards re-
pealed.

Regrating is the buying of corn or other victual in
any market, and selling it again in the same market or
in any other market within four miles thereof.

This is also an oiience indictable at common law, al-
though not so by any statute.

Engrossing^ which is another of the same description
of offences, against public trade, as the two last, is pu-
nishable as the former, viz. with fine and imprison-
ment.

Engrossing consists of the getting into one's posses-
sion, or the buying up of com or other dead victual,
with intent to sell it again. — JR. v. Wad^ngton, 1 East^
167.

Common Nuisance.'] — Persons are indictable at
common law^ and punishable by fine or imprisonment,
who carry on offensive trades in places where they will
be detrimental to the health or comlbrt of the public.

As for using a shop, in any public market, as an
open and exposed slaughter house; for erecting a
hartshorn manufactory in the middle of a town ; for
keeping hogs in a public street, and feeding them with
offal.

So also the keeping a ferocious bull in a field
through which there is a public footpath ; or a feroci-
ous dog unmuzjEled, and allowing it to wander about,
are nuisances, and indictable as such.

116 OF OFFENCES

f The negligent use of furnaces employed in working
steam engines is made punishable by statute £ Geo. 4,
c. 41.

• In cases of offensive trades being carried on, it is
not necessary that, when indicted, it should be proved
that such trade is injurious to the health of the inha-
bitants living near, it is quite sufficient to show that it
is offensive to the senses. — R, v. Neil, 2C. ^ P. 485.

. Gaming-houses and Brothels are of the worst descrip-
tion of public nuisances ; and persons acting or behav*
ing as the master or mistress thereof, are deemed in
law to be the keepers, and liable to be prosecuted and
punished as such, either at the general quarter sessions
of the peace, or at the assizes ; 25 Geo. £, c. 36, s. 8.

The indictment for these offences cannot be removed
by certiorari, unless upon the part of the crown.

Where an indictment has been preferred by a pri-
vate prosecutor, the court will allow any other person
to go on with it, even against the consent of the first
prosecutor. — R. v. Wood, 3 B, ^ Ad. 657.

Obstructing common Highways^] — Another descrip-
tion of public nuisance is the obstructing of highways,
either by erecting gates across them, placing carts
thereon for the sale of vegetables, &c. ; laying soil, or
digging holes there ; stopping a water-course, whereby
a highway is overflown ; exhibiting effigies at a win-
dow, and thereby attracting a crowd ; all of which of-
fences are punishable by fine and imprisonment.

Offences relating to Game are, in some instances, and
under various acts of parliament, made punishable

AND PUNISHMENTS. 117

under summary proceedings, and conviction before
magistrates; see 9 Geo. 4, c. 69.

Taking game by night, after two previous convic-
tions, renders an offender liable to transportation for
seven years, or to imprisonment not exceeding two
years — 9 Geo. 4, c. 69.

For the purposes of the game acts, " night" signifies
the time between the first hour after sunset, and the
first hour before sunrise.

And game includes hares, partridges, pheasants,
grouse, heath or moor game, black game, and bus-
tards; rabbits are also mentioned in various sections
of the acts relating to the game laws.

Three or more persons entering land, open or en-
closed, at night-time, and armed with offensive wea-
pons, for the purpose of destroying game, is a high
misdemeanor, subjecting the offender to transporta-
tion, or imprisonment and hard labour — 9 Geo. 4, c.
69. This offence is not cognizable at sessions.

The intent of the parties is proved by circumstances
of their having game, or game bags, upon their persons,
&c.

Offensive weapons, it is said, may consist of large
stones, R. v. Grvcet 7 C. Sp P. 803, also of sticks and
bludgeons ; but mere switches, for the purpose of beat-
ing bushes, are not offensive weapons.

If one of the party is armed with a gun, or offensive
weapon, all his companions are equally liable with him-
self.

The offence must have been committed within twelve
calendar months of the prosecution.

Setting Spring Guns.^ — The use of spring guns having

120 OF OFFENCES AND PUNISHMENTS.

dictment charges him with conspiring together with
others not appearing, or who are dead. — R, v. NtchoUsf
ZSira. 1227.

Fine or imprisonment, and sometimes both, are the
punishments inflicted after conviction of conspiracy^

( 121 )

CHAPTER V.

VARIOUS DESCRIPTIONS OF ESTATES, REAL AND

PERSONAL.

Sect. 1. — Various Descriptions of Estates.

All Property is divided into Real or Personal Estate.

The former consists of such things as are permanent,
fixed, and immovable, which cannot be carried out of
their place : such as lands, houses, &c.

Things real consist of lands, tenements, and here-
ditaments.

Land comprehends every thing of a permanent na-
ture, substantial and irremovable, and is a word of very
extensive signification.

Tenement is a word of still greater extent ; and al-
though in its vulgar acceptation it is only applied to
houses and buildings, yet in its legal sense it signifies
every thing which may be holden, whether of a sub-
stantial or ideal nature.

Thus lands and houses are tenements, and in like
manner advowsons, rights of common, peerages, fran-

o

122 VARIOUS DESCBIPTIONS OF ESTATES,

chises, and offices, are equally and legally entitled to the
description of tenement.

But a Hereditament, according to Sir Edward Coke, is
tbe largest of all expressions denoting property, for it
includes not only lands and tenements, but whatsoever
may be inherited, be it corporeal or incorporeal, real,
personal, or mixed.

Thus an heir-loom, implement of furniture, which by
custom descends to the heir, together with a house,
being inheritable, is comprised in the word heredita-
ment.

Again, hereditaments are of two descriptions, viz.
corporeal and incorporeal.

Corporeal hereditaments consist wholly of substantial
and permanent objects, all of which may be compre-
hended under the general description of land.

For land comprehends any ground, soil, or earth
whatsoever : as arable land, meadows, pastures, woods,
moors, waters, marshes, &c.

It also legally includes all castles, houses, or build-
ings, because land is the structure or foimdation ; and
if land or ground is conveyed, the structure or building
passes therewith. — 2 BL Com, c, 2.

If a man grants his lands, he grants all mines of
metals, woods, waters, and houses therein and there-
upon.

Incorporeal hereditaments are rights issuing out of
things corporeal, whether real or personal, or concern-
ing, annexed to, or ex^cisable within the same.

Incorporeal hereditaments are principally of ten

KEAL AMD PBBSONAL. 128

sorts, viz. advowsons, tithes, commons, wajs, offices,
dignities, franchises, corodies or pensions, annuities,
and rents.

An Advomson is the right of presentation to a church
or ecclesiastical benefice, and is technically termed
either advowson appendant or advowson in gross.

Tithes are tlie tenth part of the increase yearly aris-
ing and renewing from the profits of lands, the stock
upon lands, and the personal industry of the inha-
bitants.

And tithes consist of corn, grass, hops, &c. which are
termed prsedial tithes ; wool, milk, pigs, &c. which are
known as mixed tithes ; and there are also personal
tithes, consisting of things arising from manual occupa*
don, as trades, fisheries, &c.

Common of Pasture^ which is another incorporeal he-
reditament, is the profit which a man hath in the land
of another to feed his beasts.

Again, there is also a common of 'piscary and com-
mon of turbary ; the former being a liberty of fishing
in another man's pond or river ; and the latter is the
right of cutting or digging turf upon another's ground.

Common of Eatovers is another right of the same de*
scription, and consists in the liberty of taking necessary
wood for the use or furniture of a house or farm from
miother person's estate.

The other descriptions of incorporeal hereditaments
may be easily understood from their respective names.

124 TABiocs vgacMMrrwoms ov xstates^

Perwmtd Ettmie nwemXh of goods, mooey, plate, far-
nidney and all other movaUes whidi may attend the
owner^s person wherefer he thinks proper to go.

Property in chattds personal is of two descriptions,
▼is. that which is actnally in the owner's possession ;
and secondly, that to which he is entitled hy acti(»i, but
of which he is not in the actual enjoymmt, possessing
only the mere right thereto.

Property in possession ocMisists of jewels, money, im-
plements, garments, yegetables when severed from the
groond, animals, machines, &c.

The other description of persiHial property is that
which is technically termed a cAose tit action.

Thus money due upon a Ixmd or hill of exchange is
a chose in action, ibr there is no possession of the mo-
ney until paid or recovered by law.

All property which depends upon contracts, express
or implied, and which may be enforced in a court of
law, may be termed choses in action.

Sect. 2, — Rules relating to the Tenure of Real Estates,

The Fee-Simple estate, is where a man hath lands or
tenements of inheritance, to hold to him and his heirs
for ever.

An estate in fee-simple is such as is held without
limitation to what heirs, but to heirs generally ; it is
the word heirs makes the inheritance, and a person can-
not have a greater estate.

Where land is granted by deed, to hold to one for

REAL AND PERSONAL. 125

ever, or if it be to him and bis assigns for ever, tbis is
no fee-simple, but an estate for life only, because the
word •* heirs" is wanting.

Yet in case of a will, which is more favoured in law
than a grant, the fee-simple and inheritance may pass
without this word heirs, or other words of perpetuity^
where the intention of the testator to convey the whole
interest is manifest.

If a gift be made of lands to a person and his chil-
dren, and their heirs, it is a fee-simple jointly to all that
are alive ; and if an annuity be granted to one and his
heirs, it is a fee-simple persorud.

At common law, all estates of inheritance, it is said,
were fee-simple, and all other estates are derived out
of it ; for which reason there must always be a fee-
simple at last in somebody.

Estates in Fee have been generally divided in fee absa»
lute 9 otherwise termed the Jee-simplej and fee conditional,
otherwise cslled fee-tail.

He who is seised of lands in fee-simple, may give»
grant, or charge the same, as he pleases, by deed or
will : but he that has an estate-tail only cannot do so.

The Fee-tail estate, is an estate of inheritance where-
of a person is seised to him and the heirs of his body,
begotten or to be begotten.

It is a limited estate or fee, opposed to that of. fee«-
simple ; and there must be not only the word heirs in
the deed which creates it, but also the word bod^^ for
it is that makes the estate-tail, without which it may be
a fee-simple estate.

Fee-tail, is either a general tail, where lands or tenfr>

126 YARIOUa DESCRIPTIONS OF ESTATES,

menta are given to a man and the heirs of his body
begotten ; or to a woman and the heirs of her body
begotten.

In which case it is called general tcM^ because, how
many wives soever a person who holds by this tide
shall have in lawful marriage, his bsue by them seve-
rally are all capable of inheriting in their turns.

And if the woman has several husbands, and hath
children or issue by every one of them, they may inhe-
rit after each other as heirs of her body.

Or it is a tml special^ when lands are limited to a
man and his wife, and the heirs of their two bodies be-
gotten ; and it is termed special tail, by reason that no
other persons can inherit the lands but the issues that
are begotten on that particular wife.

When lands are given to a husband and wife, and to
the heirs of the body of the husband^ he has an estate
in general tail, and the wife an estate only for life.

This is because the word heirt hath relation in gene*
ral on the husband's body.

And if an estate be limited to a man's heirs that he
shall beget on the body of his wife, though it creates
a special tail in the husband, the wife in that case will
be entitled to nothing.

If a gift be to persons unmarried, or to a married
man and another's wife, and the heirs of their bodies, it
may be a good estate in special tail, if they afterwards
marry.

There is an estate-tail within the equity of the stat
of Westm. 2, where lands are granted to a person and
his heirs male or female of his body begotten ; in which
case the male or female issue shall only inherit, pursue
ant to ^e lunitation.

REAL AND PERSONAL. 127

If here the estate be limited to heirs male of the
body, the pedigree must descend by heirs male ; and
on the other hand, if it be to heirs female, the title
must be derived by heirs female one after another.

So that where a grant is made to a person, and the
heirs male of his body, and he has issue a daughter,
who hadi a scm, and -then dies, such son may not inhe-
rit the estate, because he cannot make his descent by
heirs male.

A lease for years may not be intailed ; if it be made
to a man and the heirs of his body, it is void ; for a
chattel cannot be turned into an inheritance ; yet it
may be assigned in trust to permit the issue in tail
to receive the profits of the land ; and that in effect is
an estate-tail.

It is incident to the estate of tenant in tail, to be dis-
punishable of waste ; such tenant might formerly have
levied a fine to bar his issues, &c. or suffered a reco-
very; he may grant leases for twenty-one years, or
three lives, according to the stat. S2 Hen, 8, c. 36, and
by custom grant copyhold lands, &c.

He cannot in any other manner grant or convey a
greater estate than for his own life ; or give away the
land by will, &c.

Entails are usually created upon marriage settle-
ments, where the lands are settled on the husband for
life, then to the wife for her life, and to their issue in
remainder.

And if tenant in tail, general or special, die without
issue, so a» there is no heir to take according to the
linutatioQs, the donor or his heirs may enter as in re-
version.

128 VARIOUS DESCRIPTIONS OF ESTATES,

Or the land shall descend to such person as is
limited to have it after the estate tail is spent.

The Estate'tail after PossibiUty of Issue exlinctf is
where any lands are given to a husband and wife and
the heirs of their body in special tail, and one of them
dies without issue had between them, the survivor shall
hold the land as tenant in tail after possibility of having
issue.

This is an estate which none can have but the donee
or tenant in special tail ; for the donee in general tail
may possibly have issue at any time.

Where the donees in special tail have issue, if the
issue die without issue, so that there is none other lefl
which may inherit by force of the entail ; the survivor
of the donees will have an estate in tail after possibility
of issue extinct.

These tenants in tail, as also tenants by the curtesy,
or for life, suffering a recovery without the assent and
to the prejudice of him in remainder, incurred a for-
feiture, of their estates 5 and such recoveries were void.

But tenant in tail after possibility of issue extinct is
not punishable for waste, as is the tenant for life ; but
the waste, as timber felled by him, does not thereby be-
come his property, but of the first person then living
who has an estate of inheritance.

It is observed that by settlements guarding against
accidents, and limiting remainders over, this estate now
seldom happens.

The Estate held by the Curtesy, is when a man takes
a wife, who is seised of lands and tenements in fee-

REAL AND PERSONAL. 129

simple, or in fee-tail general, or as heiress in special
tail, and he hath issue by her male or female, which by
any possibility may inherit, and then the wife dies.

Here the husband, after the wife's death, shall hold
the lands during his life, by the curtesy of England. —
1 Inst.

And although the Issue by the wife, being born alive,
die immediately, the husband shall be tenant by the cur-
tesy ; and it matters not whether the child were ever
beard to cry : but in case a child is ripped out of the
Brother's belly, after her death, though it be alive bom,
it will not give tenancy by the curtesy.

If lands are given in tail to a woman and the heirs
male of her body, and she afterwards marries, and has
issue a daughter, and dies, the husband shall not hold the
estate by the curtesy ; for this issue cannot possibly
inherit. — Termes de Ley,

In case lands or tenements descend to the wife, aft^r
the husband hath issue by her, he shall be tenant by
the curtesy ; but not of a reversion or remainder ex-
pectant of which she never was seised.

When the lands are gavelkind, the husband holds only
a moiety of them, and loses even that by a second
marriage.

The Estate in Dower is that estate or portion of the
husband's lands, which the law allows a widow after
his decease.

By the C(mmon Lawy this dower is where a person
is solely seised of lands or tenements in fee-simple, or
fee-tail general, or as heir in special tail, and marries a
wife and dies ; his widow shall have a third part of all
lands or tenements as were the husband's, at any time

q5

130 VARIOUS DBSCKIPTICmS OS SSTATES,

during the coverture, to hold during her life, but not
of copyholds, except by the custom of the manor.

This estate the widow, shall have, whether she had
issue by her husband or not ; and it is not necessary
that seisin should continue to the death of the husband;
for if he sells or aliens the lands, it is still the same.

The law of dower is now regulated by the 3 Sp ^
Will, 4, c. 105 ; and under this act equitable estates in
possession are made liable to dower, and the actual
seisin of the husband is dispensed with.

The husband may bar the wife's right to dower by
a declaration in deed or will to that efieet.

Dower by Custom^ is such part of the husband's es-
tate, to which the widow is entitled afler the death of
her husband, by the custom of some manor or place,
so long as she lives sole and chaste.

And it is frequently more than one- third part ; for
in some places she shall have half the land, and in
others the whole during life, which is then called her
free bench.

At common law dower was to be assigned by the
sheriff, on the king's writ; or by the heir, &c., by
agreement among themselves ; and anciently a woman
was to live and continue a whole year in the house of
the husband for the assignment of the dower.

But by Statute^ the widow shall immediately on the
husband's death have her marriage inheritance, and
shall remain in his chief house forty days, called the
widow's quarantine, within which time dower is to be
assigned her of the third part of the lands and tene-
ments of the husband. — Mtkgna Charta,

A woman may be endowed of the principal mes*
suage, if it be not a castle ; and of things whereof no

&EAL AND PEBSONAX., 131

division can be made, the dower must be assigned in a
special manner ; as the third presentation to a church,
&c.

The wife of one who held lands as tenant in common
with another^ though not of a joint-tenant, shall have
dower ; and she shall hold her part in common with
the other tenants.

On a tenant in tail's dying without issue, whereby
the land reverts to the donor, and the estate-tail is de-
termined, a woman may be endowed thereof.

Ai^ a devise of lands by the husband to his wife by
will, is held to be no bar of her dower, but a gift of
benevolence ; and therefore she may enjoy both.

For dower is much £ivoured in law, being for the
benefit of widows ; and therefore, though the husband
be convicted of felony, &c., the widow shall have her
dower : but not if he be attainted of treason ; nor the
wife of an alien, unless it be the queen consort.

If a wife commits either treason or felony ; or in
case she elopes from her husband, and lives willingly
with the adulterer, she shall forfeit and lose her dower.

Yet it is otherwise if the husband be afterwards re-
conciled to her, and she returns to him again, for then
she shall be epdowed. — 2 Inst, 4S5.

Although a man grants his wife over to another, and
she by force of the grant (foes live with the grantee,
during the life of the husband, her dower becomes
forfeited.

Such a grant is void, and the wife lived in adultery
Botwithstanding.

By detaining the title deeds of the estate firom the
heir, or by aliening the lands assigned for her dower.

Formerly, when a wife levied a fine or suffered a i:e-

132 VARIOUS DESCRIPTIONS OF ESTATES,

covery with her husband, she thereby barred herself
of dower ; but fines and recoveries were by the statute
of 3 ^ 4 Will. 4, c. 74, abolished, and a new species
of assurance, called an acknowledgment, substituted in
their stead.

There are Jointures usually made by the husband of
great estates, in lieu of dower, by virtue of the statute
27 Hen. 8, c. 1 0.

And a jointure is contrived for the wife, to take ef-
fect presently in possession or profit, afler the death of
the husband, for her own life ; and it must be in satis-
faction of her whole dower, and be so expressed ; it
may be also made either before or after the marriage ;
so it may be by devise, and she may have her choice.

In case the same be made before marriage, the wife
cannot waive it and claim dower, even though she were
under age at the time of marriage ; but if made after
marriage, it is waivable, for then she may refuse the
lands appointed in jointure, at the husband's death,
and have her dower.

If the wife be evicted of her jointure, she shall be
endowed according to the rate of the husband's lands,
whereof she was dowable at common law.

A wife, at the death of her husband, m^ enter on
her jointure, without brining an action ; 9^d a jointure
k not forfeited by the treason of the husband, nor by
adultery in her, as in cases of dower.

The Estate for Lifey is where a person holds land or
tenements let or granted to him for his own life, or the
life of some other person {fur autre vte) ; on which
lease or grant, livery of seisin is made ;

REAL AND PERSONAL. 13S

This estate may be made both for a man's own, and
another's life ; but that for his own is greater than for
another's : and it is a freehold estate, though accounted
the least in the law.

If a lease be granted to a man and his assigns, to
hold the land during his life, and the lives of two other
persons ; he hath but one estate for his own and the
other two lives, and it is good with such limitation.

But where a person grants land to one, to hold to
him and also to two others for their lives, none can take
but the first person, because he is only party to the
deed, and the rest are only named in the habendum^ and
not the grant.

By the common law, a lease for life cannot be granted
to commence at a day to come ; because livery and sei-
sin may not be made to any future estate.

Yet if after the day the lessor make livery it will be
good ; and a lease for life in reversion, or for years,
may be made to begin at a future day.

Where a grant or lease is made for life or years, as
the timber trees are annexed to the land, the lessee has
only a special interest therein, to have the mast and
shadow for his cattle.

And when they are severed from the lands, or blown
down with the wind, the grantor or lessor shall have
them as parcel of his inheritance.

But if a house, or part of it, falls down, the lessee
hath an interest to take the timber to re-edify it; and
every tenant for life, or years, may cut, of timber or
wood upon the lands demised, necessary house-bote, and
plough-bote for repairs, Jire-bote, &c. without doing
waste.

These are called estovers in the law, and are incident

134 VARIOUS BSSCBIFTIOirg or ESTATES,

to the estates of the lessees, if do mentioii be made
thereof in their grants.

In case any tenant for life of an estate remain beyond
the seas, or elsewhere absent himself for the space of
seven years together, and no sufficient proof is made
of his being alive, in any action brought by the lessor
or reversioner^ he shall be taken as dead. — 19 Car. 2,
c. 6.

And by another StaiuUf if a lessee for life be not
produced, on moving the lord chancellor to that pur-
pose, and affidavit being made by thiose in remainder,
&c. that they believe he is dead, they may enter upon
the estate. — 6 Ann. c. 18.

If a lease or grant of an estate be made for the term
of one thousand years, it is only a chattel and no free-
hold, nor of so high a nature as an estate for life.

Tenants for life shall not be prejudiced by the sud-
den determination of their estate. Where it is by the act
of God, or the act of law, the representatives shall have
the emblements, or crops sown by the tenant £<xe life ;
but not when it is determined by the tenant's own act;
although, even in the latter case, if the lands be in the
hands of under-tenants they shall not be prejudiced;
and by stat. 11 Geo. 2, c. 19, the executors shall reco-
ver a proportion of the rent due from the last day of
payment to that of the death of such lessor. These
advantages of emblements are extended to the clergy
by sUt. 28if^. 8, c. 11.

The Estate for Years, is when lands or tenements
are let to another person, for a certain term or number
of years.

BSAX AMD PERBONAL, IS5

Where a tenant for life, and he in remainder ia fee
grant an estate for years ; it is the lease af the tenant
for life^ so long as he lives^ and the confirmation of him
in remainder.

And after the tenant for life's death, it wUl be the
remainder man's lease or grant for the rest of the term,

A man having an estate for years in land, in right of
his wife, makes a lease thereof to commence after his
death; and then dies; though the wife survive him,
this has been held good against her.

For the husband during his life might have sold the
whole term which his wife had in the lands, or any part
thereof; but she shall have so much as is undisposed
of by him.

If the estate of lessee for years ends before corn or
grain is ripe, the landlord or he in reversion will be
entitled to it; but it is otherwise in case lessee for life
dies, the same shall go to his executors ; and if the
estate of tenant at will be determined by the lessor,
such tenant may have the grain. — (Vide supra.)

In the case of the lessee for years, it was his own
folly to sow the land, when he knew his term would
expire before the corn could be ripe.

A tenant for years is immediately to enter on the
lands let, and he is not in possession to bring an action
of trespass, until actual entry.

The Estate at Will, is where lands are let to any per-
son, to hold at the will of the lessor ; or of both parties,
the lessor and lessee*

In case a person enters into land with the owner's
consent, he is tenant at will; so it is if a man be in
possession, and has paid any rent to the landlord,.

136 VARIOUS DESCRIPTIONS OF ESTATES,

although there was no agreement between the owner of
the land and the tenant.

But estates at will are in general now considered
as tenancies from year to year, and cannot be deter-
mined without reasonable notice to the other, which is
six months determinable at the end of the year, when
the tenancy expires.

A tenant at will is not obliged to repair the premises,
as the lessee for years is ; though if he commits volun-
tary waste, an action of trespass lies against him.

If the tenant at will grants over his estate to another,
or if the lessor dies, the lease will be determined.

And then if a person continues in possession, he must
become tenant at sufferance.

To recover these the landlord is bound to make a
formal entry. By stat. 4 Geo. £, c. 28, tenant holding
over after notice from the landlord or reversioner, is
liable to pay for the time he detains them double the
yearly value; and by stat. 11 Geo. 2, tenant giving no-
tice of his intention to give up the premises, and con-
tinuing to hold over, shall be liable to pay double rent
for such time as he continues in possession.

The Copyhold Estate, that is held by Copy of Court
Roll, is an estate in lands and tenements, which tenants
have had time out of mind, to them and their heirs in
fee, or for lives, at the will of the lord, according to the
custom of the manor.

This is called a Base Tenure, because in former times
the copyholder held only an estate at the will of the
lord, in judgment of law ; but now by the custom of
manors, these estates are descendible, and the heirs of
the tenant shall inherit them.

REAL AMD PERSONAL. 137

Yet copyholders may not plead, or be impleaded, for
any thing relating to their tenements, by the king's
writ, but they are to enter a plaint in the lord's court;
unless the lord pretend to expel them out of their
estates.

In which case they may sue a subpcena out of the
chancery to be relieved, or have action of trespass
against the lord.

It is by surrender and admittance in the lord's
court, that copyhold estates regularly pass from one to
another :

A copyholder cannot transfer his interest to a
stranger, in any other way than by surrender to the
lord, according to the custom, to the use of him that is
to have the estate.

If a man would exchange his copyholpl estate, it
must be done by surrender; and formerly, if he would
devise it, it must have been by surrender to the use of
his will : but now it is otherwise by 1 Vict. c. 26, s. 3.

A married woman may receive a copyhold by sur-
render from her husband, because she comes not in
immediately by him ; but on the admittance of the
lord.

Upon a surrender, the person' to whom made is to be
admitted tenant; and the party making it continues
tenant till the admittance of the surrenderee ; but he
cannot pass away the land or subject it to any other
incumbrances, but those at the time of the surrender.

Till admittance, which is the giving of possession,
the copyhold tenant hath not an estate in the lands,
which he may surrender to another ; except in the case
of an heir by descent.

A surrender made out of the lord's court is to be

138 VARIOUS BESCBIPTIONS OF ESTATES.

presented at the next court ; as if the surrenderor or
surrenderee die before it is presented, in that case a
presentment afterwards makes it good.

If the taiants refuse to present a surrender thus
made, they are compeUable to it in the court of the
lord.

There are fines payable to the lord on all admittances
in fee ; and on the death of a copyholder for life, a
heriot of the best beast or goods is due to the lord,
according to custom.

And if the heir on the death of his ancestor do not
come in to be admitted, upon three proclamations made
in court, he may forfeit his estate. But see stat. 9 Geo. S,
C.29.

By custom, the widow of a copyholder in fee may
hayejree hench^ after the death of her husband; and
there is also a Widam^s Estate annexed to the copyhold
for life.

Though it is held, if the copyholder surrenders to
the use of another, and then dies, the surrenderee shall
have the land, and oust the widow of her estate.

Copyholds are not within the Statute of jointures, or
of uses ; nor shall be extended in execution for debt;
for they are not assets to bind the heir, &c.

And yet they descend according to the rules and
maxims of the common law — ** Consvetudo manem et
loci."

( 139 )

CHAPTER VI.

RULES RELATING TO THE CONVEYAKCE AND DESCENT
OF LANDS, AND DISTRIBUTION OF PERSONALTY.

Sect. 1. — Deeds and Conveyances of Lands.

Th£ Deed of Feoffment is a grant or conveyance of
any manors, messuages, lands, or tenements, to another
in fee ; that is, to him and to his heirs for ever, by de*>
livery of seisin and possession of the estate granted,

A feofiment is the most ancient conveyance of lands
at common law ; and was said to excel a fine and re-
covery, for it clears all disseisins, abatements, intru«
siiHis, and other wrongful estates*

And which neither fine, recovery, nor bargain and
sale by deed indented and inrolled, could efiTect.

It also bars the feofiTor firom all collateral benefit in
respect to conditions, powers of revocation, writs of
error, &c. and destroys contingent uses.

But no deed of ftoffinent is good to pass an estate
without livery of seisin ; so that if either of the parties
die before livery, the feoffment is void.

140 CONVEYANCE AND DESCENT OF LANDS,

If a bargain and sale of lands be not inrolled, and
the bargainor delivers livery and seisin of the land, ac-
cording to the form of the deed, it has been held to be
a good feoffment.

Though where one makes a feoffment without any
consideration of money, &c., by that the estate passes,
but not the use, which shall descend to the feoffor's
heir.

Since the statute of uses the deed of lease and re-
lease has taken place of this deed, as it unites the use
and possession, without entry. — S7 Hen, 8, c. 10.

The parties to deeds are termed feoffor and feoffee,
grantor and grantee, bargainor and bargainee, lessor and
lessee, devisor and devisee, obligor and obligee, &c.

The Deed of Lease and Release, as used in our law,
signifies a certain instrument in writing, for the con-
veyance of a man's right or interest in lands and tene-
ments in fee to another person, who hath possession
thereof.

A lease and release make but one conveyance, being
ill nature of one deed ; and it amounts to a feoflment,
the use, by operation of the statute, drawing after it
the possession, and supplying the place of livery and
seisin, required in that deed. This mode of convey-
ance was invented by Serjeant Moore, although its va-
lidity was once doubted. — 2 Mod, 252,

This deed is now the usual conveyance of lands or
tenements : in the making whereof a lease or bargain
and sale for a year, bearing date the day next before
the day of the date of the release, is first prepared and
executed.

To the intent that by virtue thereof, and of the sta-

AKB DISTRIBUTION OF PERSONALTY. 141

tute made for transferring uses into possession, the
lessee may be in the actual possession of the lands,
&c. intended to be granted by the release, and be
thereby enabled to take a grant of the reversion and
inheritance of the said lands to him, his heirs and as-
signs, for ever.

On which the release must be executed, reciting the
lease or bargain and sale for a year, and declaring the
use. — 27 Hen, 8, c. 10.

The lease for a year, different from other leases,
must have the words bargain and sell in consideration
of a sum of money ; and five shillings, though never
paid, is a good consideration, whereby the lessee for a
year becomes immediately in possession, on executing
the deed, without any entry made.

And it is held, if only the words demue, grant, and
to farm let, are used in the lease or bargain and sale
for a year, in that case the lessee cannot accept of a
release of the inheritance until he has actually entered
and is in possession.

It is proper in the lease for a year to reserve a pepper-
corn rent, which is judged sufficient to raise a use ; so
as to make the lessee capable of a release.

The person who makes the release must not only
have such an estate in himself, whereout the estate
may be derived to the releasee ;

But also the releasee is to have an estate in posses-
sion, that is, in deed or in law, in the land of which the
release is made, as a foundation for this release, which
is die object of the previous lease.

And there must be sufficient words to make the re-
lease and to create and raise a new estate, or it will not
be good.

142 CONTSTANGS AND DESCENT OW LANDS,

A release made by a person who at the time of
making thereof has no right to the lands ; or if it be
made to one who at that time hath nothing in the lands,
is void in law.

For he ought to have a freehold ther^n, or a posses-
sion or privity ; and without privity between the tenant
in possession and the releasor, a release will not ope-
rate.

These releases that enure by way of passing an es-
tate may be made upon a condition, &c., so as it be
contained in the same deed, or delivered at the same
time with it.

The conveyance by Fine andReeovery, although now
abolished by the S ^ 4 Witt, 4, cap. 74, requires here
to be noticed, as it must frequently occur in the course
of examination of titles and the perusal of abstracts.

It was an assurance by matter of record, and was a
final agreement or conveyance for the settling or assur-
ing of lands or tenements, and was acknowledged in
the king's court by the cognizor to be the right of the
cognicee, the person to whom the acknowledgment is
made.

The jSae was commonly upon a feigned action on a
writ of covenant, &c., and supposed some controversy
(when in fact there was none) to secure the tide which
a person had in his estate against all others.

Or it was to cut off intails, so that lands might with
the greater certainty be conveyed, either in fee, tail, for
life, or years.

And as a fine for its better crectit was supposed to have
been made in the presence of die king (being levied in his
Conit of Common Pleas), it therefore was binding upon

AND DISTRIBT7TI0K OF PERSONALTY. 143

married women, who were parties, and others whom
the law generally disables from acting.

But where a feme covert was party, she was secretly
examined by the judge or commissioner taking the fine,
whedier she consented freely thereto, or otherwise the
fine could not pass.

A fine was either single or double, which might be
with a render back again of the lands ; and with pro-
clamations according to the statutes, or without them
at common law ; but those by statute were the best
and most used.

There were likewise four sorts of fines ;

1st. The fine '* sur cognizance de droit come ceo que
il ad de son dcme^* t. e. an acknowledgment of a former
grant or gifl in possession.

Snd. The fine " sur cognizance de droit tantunif* or
mere acknowledgment of the right.

3rd. The fine " sur concessit" whereby without ac-
knowledging a precedent right, the cognizor granted an
estate de novo.

4th. The fine " sur done grant et render,** compre-
hending the first and third sort to create particular
limitations ; but the first was considered the principal
and surest kind of fine, as it gave present possession to
the cognizee, without any writ of execution : and this
was also a Jme according to the statute.

Upon levying the fine, privies in blood, as the heirs
of the cognizor, were barred presently thereby.

But strangers to the fine, who were not parties or
privies, had five years' time allowed them to enter on
the lands, &:c. and claim their rights.

The like time was given to infants, after they came
to full age, and to feme coverts not joining in the fines

144 contBYAne* Aim muewmt<rf labtm,

after the death of ilie budbende ; also to priaoners after
they were set at Hberty, add persmis out of- the realm
on their retorn, &e.

And a future interest could not be barred by a fiaC)
till five years after its coining in esse; as in caae of a
reversion or remainder in lands.

A person having two titles had two five years to
make his -claim ; and where there was no present nor
future right in land, &c., but only a possibility at the
time of levying the fine, a man might enter and claim
when he pleased.

On a fine, uses were firequently raised and created,
&c. declared by indentures made before or after levying
the fine ; in the former case they were said to lead, in
the latter to declare the uses.

And the usual fine barred the issue in tail, but not
those in reversion or remainder.

A Recovery was also a formal act by consent on re-
oord, made use of for the better assurance of lands and
tenements, and originally invented to elude the -statute
of mortmain.

And -the end and efiPect of this recovery (cidled in
the law a common recovery) was to destroy estates-tail,
remainders, and reversions, and bar the foime'r owners
thereof.

A common recovery was either with sii^le, doirt>le,
or treble voucher, and barred accordingly. To a re*
covery there must have been three parties at least, tlie
demandant, tenant, and vouchee. It was so far of the
niature of a fine, that it was a suit or action, aetnal or
fictitious, upon which followed a supposed adjudicaftion
6f the right, binding all persons, and vesting an abso*
lute fee in the recoveror.

AKO DISTRUUTIOll <MP FVRSONALTY* 145

The detkmdtmi was die pertoo or suitor in the ac^
turn who brought the writ ^ enirff^ and therefore was
termed the recifverar : the tenant was he gainst whom
the writ is brought, termed the recoveree; and the
wmekee was the party whom the tenant vouched and
called to warranty for the lands demanded.

In prosecuting a recovery there was a colourable
suit or action real* brought by the demandant^ who wag
usually some friend of the person having the estate,
and he, by a feigned count or declaration^ pretended he
was disseised of the land by the tenant*

Then the demandant was supposed to come into
court, and this feigned tenant, if it was a single re-
covery, was made to appear and vouch to warranty the
bag bearer to the custos brevntm^ or some ofiScer of the
court, who was called the common vouchee, and was
supposed to warrant the title*

And this vouchee appeared as if he intended to de-
fend the same, and for that end craved a day for making
his defence, but on the day given he made default, so
that the plaintiff or demandant had judgment to recover
the land against the tenant or defendant, and he to re*
cover in value against the common vouchee ;

On which there issued out a writ of seisin for the
possession of the lands.

In case the recovery was with double or treble
voucher, then by fine, feoffment, or lease and release,
the estate must have been discontinued, and a tefusni of
the freehold made of the land ; and thereupon the prac-
tice was to bring a writ against that tenant, and he to
vouch the tenant in tail, and he the common vouchee.

Whereupon judgment was given for the demandant
agidnst the tenant, and for the tenant to recover in va«

14$ COMtBYAim Aim MMOSR OV lAMM,

hut agunstdieiroiiehee^tiidso die first voiudbM against
die seoend, ftc, as «ke reoeverf wee btouglit.

These recoveries were BMGii laTOiiffed in law, nmy
of the iaherkaneesof the kingdam depending upon sudi
kfaid of assttranees: and diey sufipeced a gsc om pS Me
in value to all persoos that lost the estate ; htit stidi
recompense m value was only im^nary, and ereated a
bar to the intafl for ever.

Where there was a teaant lor life, with rsniaiiidtt ia
tail, uid rem^ider or reversioii ia fee ; if the tenaK
for life was im^eaded by agreemeat, he vouched the
tenant In tafl, who vooehed over the eommofi voiiiekee.

This barred die remander or reversion in fee, though
he in reversioa or remainder never assented to the re»
covery.

But if tenant fer life alone suifered a recovery widk
out the consent of him in remainder, it was no bar;
also a recovery, diou^h wi^ saffi»red, baned only where
diere was a privity in law ; that is, the issoe, and he in
remainder and reversion, ice.

It did not bar the heir, who claimed as a purdiaser,
and not by descent ; md a stranger was not bamad by
a recovery and non-dain, as in case of a fine.

On suffering a recovery, a person might sell and dis-
pose of his estate as he pleases ; but either a fine «tt
recovery might be avoided on aoooimt of error, or by
reason of fraud and deceit, &c.

By sUUtOe, Recoveries were held to be good, witfaoat
conveyances from lessees to make tenants to die writ
of entry, &c., so as such tenanta eoaveyed to them att
estate fer life at least.

Purchasers having been m possession of the lands
twenty yearsy mii^t prodaoe deeds makmg a SeAant

AHP D»T»HH7Xiair 4ff FJKSMVAliTY* 140"

tor Mii&rmg any reooveryi imd declaring die iuieff»
which w^re «Uowed to \» ovidenoe of it, though not
regularly entered on record.

After that space of timei aU recoveries are deemed
valid, if it appears there was a tenant to the writ, and
the persons had an estate sufficient to suffer them^ not-
withfttanding the deeds are lost.-*Tl4 Geo, 2, c» 20^

By the act of the 3rd & 4th Will, 4» €. 74, no fine or
common recovery could be levied or suffered after the
Slst Deeeno^er, 1833.

They however must continually require the attention
of conveyancers and others engaged in the perusal of
titles.

The Peed (^Bargain and Sale, is a deed or convey-
ance whereby the property of lands and tenements is,
for good and valuable consideration, granted and trans-
ferred froanone person to another.

It is called a real contract where a recompense is
given by both parties to the bargain ; as if one bargain
and sell his land to another person for money, the mo-
ney in 4ib»t case is a reeompense to him for the land,
and the land tp the other for the mon^«

And if money is mentioned to be paid in a bargain
and sale, and in truth none is, some authors say it may
be a gpod deed of bargain and sale because no aver-
ment lies against that which is expressly affirmed in
the deed« e«c^ it be questioned as &audnlc»t

Yet wh^e a deed .^^resses a consideration v^pon a
purijhase, othens bold diis will be no pcoof upcm a Irial,
that the money was actually paidi but the sanie mnst
be nuide -put by w^essea*

A bargain and sale of lands in fee, is to be by deed

u2

Indented and! inroUdd ih one of tlie ^urts^at TFexf*
^mMteVt or in the county where dto )abd« lie^ hc^nre tiie
et»to« ro^u/ortmt, and justiieeB of pesee. ' ■ . s

And the inrolment nnist be made witfam aiK maiidiB
after the date of the deedi to be aoeoUBted ^ ta^fcy*-
eight days to the month.

Btit this extends not to bargains and aaks loir terms
6f years, &c., fot they are good, though nol locolled,
nor by deed indented. — 27 Hen, 8, c. 16.

The death of either the barg^ainor or bavgaineer be-
fore the inrolment of this de^^ will not trader the
passing of the estate.

But the freehold is in the bargainor until it 'iia. in-
rolled, and therefore the bargainee may not bring action
of trespass before entry had ; yet it is said, be may Sur-
render or assign his interest.

* By the statute of inrolments, the estate shall not vest
except the deed be inroUed, but this being done, it
settles and vests from the beginning, according to the
statute of uses ; the bargain first vests the use, and then
the statute vests the possession.

Where a bargain and sale of land ia made, it passes
the freehold of the lands, and also reTendons and re-
mainders, without livery and seisin.

Though in general no person can malce sneh deedof

' bargain and sale who has not the postession of ^ land

at the tinfe of the sale, fo^ if he be not in pectseaaiai),

nor recdve^ the rents, to make it good^ere oMgjbt to

'be liVe^, and the deed is to be sealed oil tbelandb.

There Is aliM^ a Bargain imd iSio/irq/* (ji'!MMb,:^mt»c>h a

' persotif ftVAy kt any dme sell, t^ven though an ^iw^tion

be coining out against hi«a^ unless there «*^ friyate

tniBibttweon die parties, mdd the vnrit of ezecutioa 19.
delivered tik the sberiff*

But a sale of goods upon a Smdap will not alter the
pi up > i]l 3g» and a eontraet for the sale of goods for 10/L
orjapwneunisy- shall not be good, except the buyer receive
part of the things sold, or gives something in earnest to
hind' the bargain, or some note thereof be mad^ in
irritiag signed by the party, &c. — 29 Car. 2, c. 3, called
the statute of frauds,

' Aftk agreement for the sale of lands must be in writing
and be signed by the seller, or it will not be binding;
though money be given in earnest.

On any bargain or contract, where there is not what
is called quid pro quOf it is void in law, and termed a
mufe contract (nudum fMcium) ; but if the sum given be
ever so small, the contract is good.

And if a contract or bargain be to pay money to
another at a future day, and he dies before, it shall go
and foe paid to his eKecutors or administrators.

Deeds of Gift and Grant; a deed of gift is a c(^-
veyi|noe«r.insbrumeot by which lands and tenements,
or'gooda, are passed from one or another.

And a gift is of a larger extent than a grant, it beigag
apfrfttd to things moveable and immoveable^ this4eed
is tsAao good)- without any consideration ; but great c^e
9nii»t4ifr takett that there be no fraud in making it.

Bar ifa gift and conveyance of lands ben^de with,
intent to defraud- a purchaser <m good qoHsid.eratioi^,>as
i^ainst tiudi purehaser, it shall be deemed void, • )

Atfdtfae parties justifying the same to be. tetiA jfide
Htfad^, were to forfi^ a year*s Kralue of .thelaiids, ^fC,,'

IM GoirrsTAiwK Jin» smobiit ov uotm,

and laEewiae to be knprisoiied. — f^ J^bu e. ^, pefpe^
toated by 39 EUz. c. 18.

So it is where asy deed of gift or grant hi made of
lands or goods to deeeive creditors of their jtist delits,
as to the ereditors it is vend in htw, bat not agsmtt the
party himself that makes the deed, or his execators, &e.
against whom it remaitts good*

A general deed of gift of all a man's goods, is liable
to suspicion of being fraudulent, thoagh a true debt be
owing to the party to whom made^ and it is void against
other creditors.

And the several marks of fraud in law, are, if a gift
of goods be general ; if the dcmor continues to possess
and use the goods ; if the deed be made in secret, or
upon any implied trust and confidence; or if done
whilst an action is depending.

Therefore, whenever a gift is made in satisfaction of
a debt it is proper to have it done in a public manner
before witaesses of credit, and that the goods and chat-
tels at the same time be appraised to the fttll value.

In some cases, there is a gift in lam ; as where a
person is made executor of a wOl, or marries a woman,
the law, in the one case, gives him the testator's goods,
and in the other case, the goods of the wife, liable to
satisfy debts.

A Grant is a conveyance in writing of such inoorpo-
real things as lie in grant, and not in livery; and
grants are made by persons who cannot give but by
deed.

Here the things granlable are reversioDSy adfOW8<Mis

m gross, tithes, rents, services, commons, and sadi

like, but generally we say land is granted in any deed,

nd the words give and grants &c., of what lies in

gmiAt, iviU anuHuH eitiiar to a-gifti grant* feoffineot, ov
release, &c., and there pass merefy by delivery of tba
deed.

TJbere must be a foundation of interests in grants^ or
they wiU not be good; and the law does not allow of a
grant of titles only, or imperfect interests, or of rights,
as are merely future.

A grant shall be taken in favour of the grantee;
also the grantee himself is to take by the grant, and
not a stranger; in case lands are granted by deed, the
houses that stand thereon pass to the grantee.

And by the grant of all the lands, the woods will
pass; but trees in boxes, &c., do not pass in such a
grant, because they are separated from the freehold.

In every grant there must be a grantor or person
able to grant, and a grantee capable of taking the thing
granted, something granted which lies in grant ; it is to
be done in the manner the law requires, and there
must be an acceptance of the grant by him to whom
made.

One attainted of treason or felony, may make a
grimt, and it shall be good 2^;ainst all persons but the
king, and the lord of whom the land is held; and
against them too for his relief in prison.

If any grants are made by persons non mfuie memO'
rue, they are good, as to themselves, but voidable by
their heirs, &e., and thou^ infimts, and feme coverts,
99e not capable to be i^ntors, yet they may be gran-
tees.

But subject to the disf^eement of the husband to
the grant made by the wife, and of the infant to his
grant at his full age*

Where there appears to be a want of certainty, or

ItnpondbSity in grants, or when they tfrcf ^kgWHtfl Ift^
ihey are judged TOfd. ......

A Zea«e ofLcmdsj &c., is a demise br letting df lands
or tenements to another, for term of life 6t ^^rs,
under a rent reserved. •.:..» »

All leases that exceed three years, are to be redtieed
into writing; and if the substance of a lease ber)>al in
writing, and signed by the parties, though it be 'Hot
sealed, it shall have the effect of a lease for yettrs.-^^d
Car, 2, c. 3. ^

And where a lease is sealed by the lessor, but tk^
lessee hath not sealed the counterpart; the same Is
binding, so as an action of covenant may be brouglt
against the lessor upon the lease.

If articles of agreement only are made, withf cove-
nants to make a lease for a term certain, at and udder
iso much rent, this implies a lease, and has been so ad-
judged, and must now be stamped ^th a lease stiimp,
before they can be given in evidence.
' Also the words to havezxiA possens land)» m'^olisldiSi^
kison of yearly rent, wQl make a lease of tl<e lutA*,
and a licence to occupy and take the profits, -Uri!.
amounts to a lease. ' ^. •. jI

' ' Leases may be made for 'any liUmbeir off yi^ars- or
-months, &c. But the term must have'ait^tjsdh-c(^m-
hiencement and determination^ and ifby^efeteneeHo
i"eei^aiiity, it tnaybe made cettain, the Ieafi^Hi]t'%e
g^d i " id cerivm est quod eertum r^dJU pi^tfii/^ '
" Ar tease ^ is Trequendy grated Ibi- twehty-bne yeftrs,
i^'the' lessee shaB so long Uve; and is good, though It
contains a certainty in an uncertainty. * '

'^ "One tiiakfes'ia lease from three years to three years,

^ Air^ Wi^mvBaHW» <^ ^p«i#Q94%9II>>

iti$ foofl fi>E «i3(.yeBift; int where a Utmci n loade in
writiDg for a year, and so from year to year, as long
as both the lessor and lessee shall agree, this is bind^

. .Y^t if. the lessee, does enter .upon the second year^
he thereby becomes bound to hold the laod^ ^c^^ tb^it

It is a nuudm in law, that rent on leases xnust be re^
sefyed to him from whom the land moveth; as the
jesaor or his heirs, &;c.

If a lease is made for years of lands in fee-simple,
rendering rent to the lessor, his executors or a9S]gns,
doriag. the term; the heir shall have the rent as inci-
dent to the reversion.

So where the lessor dies before the day of payment
of rent, it shall go to his heir; but when it grows due
in the lessor's life*time, it goes to his executors.

Jn case a person makes a lease of lands, yielding
rent at such a feaat, or within one month after, and tiu^
lessor dies between .the feast day and the end of the
Jiiontb, the sent must be paid to the heir, and not the
eCKeaxtojT ; . because, until the month's end it was not

If a tenant for life dies on the day on whicli thp rent
.was resefived Ja be paid, bis executors, &c. in an>ao
Mfm mfiy'Z^Qver, die whole rent of th^ under-tensmta.;
or if heidie any time before such day, a due jf^Qfot"
uon thex^of ; fee the recent statute for the ^ppp^^tipa-
ment of r^t^, ^ 8c 5JViU» 4, c. £2^ iutitnl^dy) An J^Gt
fyf the.fimeQdment of 11 Geo, £, c 19, Tesp^c^i^s^ the
^Hpor^ionpnent of IUnts» Annuities, mdpliber.pe^ripdi-
cal Payments. _ ;;....,. ..,v.

JLcsaeesr .that .hold over lan.d9^ aCter the .^pff o^e^ of

h5

154 ooiryKTAiioB AMB tmmxtn vm LAms,

Aeir t^nnsi iiMdl pty doable vahie; and when teMBt
detennines his tenancy by notioe of bis intentioa to
quit, and holds orer, he shall pay double rent; SttsL 4
Geo. 2f c. 2S, and 11 Geo. 2, c. 19; and when hall^-
yeai^s rent is due from ttiy tenant, and no distress can
be found on the lands, the lessor or landlord may serve
an ejectment on the land, and have judgment to re-
oover, &c«

But a lessee in such case may, within six numtbg
after, file his bill in equity, and be reliered thereon*

And if a tenant in arrear one year's rent, shall
desert and leave the premises, two justices of peaoe, at
the landlord's request, may enter upon and view the
lands, &c. And if, on notice fixed by them, the
tenant does not return and pay the rent, his lease shall
become void.— 11 Geo. 2, c. 18.

A person of common right may distram for rents,
though there be n6 clause ofdiHresB in the leases, so
as he have the reversion of the lands*

The distress for rent is to be taken on the land
chargeable therewith ; and it must be made of such
things whereof the sheriff may make replevin, and de-
liver in as good condition as at the time of the taking.

Any goods may be taken in distress, as well as
tattle; another's goods in the tenant's house, and beasts
of a stranger in the landlord's ground, being letant
and coucbant, may be likewise distrained.

For the land is debtor for the rent, and the landlord
need not inquire whose cattle they are that he finds
therein.

Where goods or chattels shall be dlstnuoed fi)r rent
reserved upon any lease or contract, if the goods are
not repleyied by the tenant within five days afier such

AMP ]>ISTSIBUnON PV FBfUMliEAJtTT* IK

dsstwM^ttid notice Iheieo^ dwy may thea be aj^pnuied
by two sworn appraisers, and sold by tbe perjion duk
traauDg, with tbe under-sheriff, or constable of the
place, &c«

An inventory is to be taken of the goods distrained
in the presence of witnesses ; and the o^stable^ &c.
must swear the appraisers, to appraise them truly;
and the debt being satisfied by the sale, the overplus
of the money, if there be any, is to be left in the con-
stable's hands, for the owner's use. — 2 W. ^ M, c. 5»

An iqppraiaement made by the party making the dis-
tress is irregular. — 1 Stark. N. F. IL 172.

If any toiiant fraudulently carries away his goods, to
prevent a distress, the landlord within thirty days after
may distrain them, wherever they are ; and the tenant
and persons assisting in the fraud, shall forfeit double
tbe value of the goods, which may be prosecuted in a
summary manner before the justices, or by action* —
Stat. 1 1 Geo. 2.

In order to enable a landlord to follow goods, the
rent must be in anrear, and the goods have been clan-
destinely removed«-^d ^#p« 15.

And where such goods are concealed in any house
or place, on oath -made of reasonable ground of suspi-
cion before a justice of peace, by his warrant the house
may be broken open to distrain them.

The landkNrd may also distrain any cattle of the te-
nant's feeding on commons, or corn, grass, or fruits,
glowing on the lands, and cut, gather, cure, and dispose
of the same, &c«

This is in case the tenant does not before pay the
rent, and aU costs and charges/— 11 Geo. 2, c. 19,

On a rescous of goods distriuned^ treble damages

and cMNitS' may ke lecoverod agak^ di« efffnMtnif by
Action on the case* • . «

And if any distress or sale be made wha»iBfit sentift
due» the owner of the goods distrained may, by iuatse^
tion of trespass, recover of the persons distraiitia^^dOa-
ble the value and fiiU costs.

The Deed rf Mortgage, is a conditional eonv^ranoe
of lands or tenementSi &c. as a security for money bor-
rowed.

A vwum vadiums or living pledge, is where an «atate
is granted to be held until the rents and pn>fitsreeetved
shall have repaid the sum borrowed, immediately on
which the estate results back to the borrower. But
ntortuum vadium, or dead pledge mortgage, is when ao
estate is granted in Ibe, with a conditi<»i for re^-entry if
the borrower shall repay the sum on a certain day;
and in case of nonpayment the estate is absolute in the
mortgagee.

It is called Mcrtgagey because the lands are as a
dead piedgCf until the money borrowed is repaid; or
£»r that, if the money be not paid attheday, the land
dies to the debtor, and is forfeited to the creditor.

And mortgages may be made in sevefal wajFS^ as by
lease fi>r a long term, lease and release^, or assignment,
j&c. but they are commonly made by lease for five hun-
dred years or move, wherein a pepper^^om rent is re*
served.

In which deed there is contained a proviso or eon*
dition, that if the money is paid at the day agneec^ the
deed ahaU odase Had be ^oid.

And here^ until failure be made in pigment, the
mortgagor holds the lands in fee ; but if failure k madc^

oti'whieb llte> isfor^igeft lutein <tn '^e'/hmdj yet ^am
mortgagor has an equity of redemption^ and iiiaf> call
#ie''tUDn^iig6tf to an sat&it&t ibt Mb- t^eeeipt ci the

-iJMBtmiit^ dier mortgagee,' if lie imhes iso bkr the
equity of redemption^ may cM the mortgagor to ae*^
count, either to pay what is due, or be foreclosed of his
eqiffty of redemption ; which the Court of Chancery
li&k generalfy order, though upon the mortgagor's
paying the interest of the money, these mortgages
often coatiikiie a long time* After twenty years' pos-
ilessfoto by the mortgi^e, the court will not permit a
redemption except under special circumstances.

The right or interest in lands mortgaged is by law
jtf the mortgagee before forfeiture ; he has purchased
the laivd as it were upon a valuable consideration, as
the law will intend.

Fc^ though the mortgagor may redeem, yet it is tM
certainly known whether he will do so or not; and if he
does not, the estate becomes absolute in the mortgagee^
who is eiteemisd in possesi^on on executing the mort-
gsige : therefore if the money be not paid, whereby tlie
same n forfeited, the mortgagee may bring an eject-^
ment without aiH^ual entry.

As the mortgagor's heir is interested in the condition,
be may pay the moneys and sa^e the forffeiliire ; and
so may executors, ^c. And it is h^d, that mortgaged
are a part of the personal estate, if it be not otfaerwMe
declared by a mortgage in fee. < ^

Tbe personal csitate of the movtgs^^: shall <alaoy in
favour of the heir, be ap^ed tor pay.t^e ahuMgagt,
wher« there* are assets besidei for 'thepaynM^nt of.all
legacies.

15S COirTBTAIlOB AVB MHCaOn OV IiAUW,

In CBid landb are tliriee mortgigedf it hM bten nkd
in eqoitj, that a third mortgagee may bay in liie ibit
incumbiance» and thereby shall hiM aganat the aecond
mortgagee*

Bat that ia, unless such second mortgagee ahdi sa-
tisfy the money paid by the third mortgagee to the
first, and also his own, which he lent on the last mort-
gage.

And where persons having once mortgaged landi,
do mortgage the same a second time, without disooyer-
ing the first mortgage, there equity of reden^tion wiQ
be forfeited, and the second mortgagee may ledeem,
&c. by Stat. 4 fT. ^ M. c. 16.

When any action o{ ejectment is brought for reoorer-
ing land, &c« mortgaged, and there is no suit in equity
for foreclosing or redeeming it, if the person entitled to
redeem shall, pending the action, bring die princqial
and interest due, with costs, into court, it shall be
taken as a full satisfaction of the mortgage.

And the mortgagee shall thereon be obliged to re*
convey the land to the mortgagor, and ddiver up all
deeds. — 7 Geo. £, c. 20.

The Deed of Surrender ^ is an instrument whemby a
particular tenant of lands, dec. for life or years, doth
yield and g^ve up his estate to the person who has tke
immediate reversion or remainder, so that he aoay hare
the present possession thereof, and is directly opposite
in its nature to a release.

There is likewise a surrender without deed, calkd a
surrender in Urn; as where a person has a lease of a
term, and during the term of his lease takes anew kaae

AVP vaxnamnoK ov pnuK»]iAz.TT« 159

of die attne lands^ it will he a muwaiiet in ]jnr of the
ftoBer kaae*

And this surrender shall take effect, .thengh the se-
cond lease he for aless term than the first ; and although
it is made upon condition, or he a voidahle lease, for
both the leases cannot stand together in one person.

A lease is made for years, to commence at a future
daj, this interest may not he surrendered hy deed; hut
if the lessee before the day does accept of a farther
lease of the land, thereby the first lease becomes aux-
rendered in law ;

And thus the surrender wrought by operation of law,
is of greater efficacy than that made by deed, entered
into by the party*

In tbe making a sumender, the surrenderor must
have an estate in possession of the lands surrendered ;
the swrrenderee is to have a higher estate in his own
right, that the surrenderor's estate may be drowned
therein ; and he must be sole seised of lus estate in re-
Tennosi, &e.

Therefore a tenant for life cannot surrender to him
in remainder for years, and no livery of seisin is ne-
cessary on account of the privity of estate betwixt

them*

A smrrender may be absolute or conditional, and be
to a use ; but it cannot be made of an estate in fee by
the common law ; nor may one termor regularly sur-
render to another.

If a lessee for life surrenders to one in remainder fi>r
years, it is void*

A WiUi or Loit WM md TestanmU, is a solemn in-
strument in writings whereby a person declares his

IflDr cQ]fm*ii«s 4Hi^uiipiM>'^^un»l»

vaA and iBMmt as Jt^ tjbe diffp^it^aii i9f, lw.JM«»
goodi) or otkar estotei one of what be wo¥dd.baT^4pQe
after his death.

The lafti-act whidi waa pasted rdating. to wiUa^^is/lhe
1 Vict. c. 269 and by which act all fnture deKriaea an
gofersedf and .the forms of execuitioa ofwilla.M^ gape-
sai ate regtthited«

In « will where landa are giveoy the gift ia calle^a
debits; but when goods and chattels are giveii« thay
»e termed a legacy; and in a will of peracmal ch^ttdflt
there must be an executor appointed, but he has qothisg
to do with the freehold lands. Copyholds wer^ h^ld
not to be within the statute 29 Car. %, c« 3 ; and now
they will pass by a will sufficiently attested, without a
aursender by testator to the use of his wilL^^-l VkU
c. 26.

AU pera<ms that have a sole estate in lee*sim|te of
any landa or tenements, may devise and give away the
aaoie by will to whom they think fit; and tbiaesUends
to persons seised in coparcenary, or aa tenants ip com-
laon*— *34 4*-^^ Hen, 8, c. 5.

Lands intailed are not devisable oQly those held in
fee, and goods and chattels; and wills nade by infimts,
&G. or persons not of sound memory, ane not deemed
good in law ; finrraeiiy an iniant of Ae age. qf fourteen
«igbt BftdLe a will of hia gooda or .diatteK .bul^roow nP
wdll made by a person under age ia valid,- , .,

By the statute for prevention of yroiaili^i wills and
deiisaaof laada» &c. shall be in writingf ai)d. alined by
tbedavisoTi or siune other by his exp]:ess dir«cti|»a» in
the preoence of two credible witnesses.
• .1 lAnd: no !wiU made ia writing shall be revoked, <but
by some other will that is made in writing, and of equal

tffmikihf' wMi i^ ' bliHriiuMiit it Is intMidtd toi^mfet^

^^ ^di^tt&fiAg tlie Minei by tfae t^sttftor ltim«lf, w

by bis direction. — 1 Vkt. c, 26, s. ^0.

"'A'general devise of eke testator's lands v^l indsde

^ylidd; freehold, and leasehold lands.

'-l€ was formeriy beld that lands bought aftet die

making of a will, did not pass by the devise of all lands

and estate, whereof the testator should die possessed ;

and also that a devise of lands was not good if the de»<

vkbt at that time had nothing in them, buttbis is ate

jjtered by the statute 1 Vic. c. 26.

In such cases a bequest of personal things was always
eonstni^d good, though the testator had them not at
^e time ofmaking his will.^1 Salk. 257, pL 10.

A term may be devised by will to one for life, with a
remainder to another for the residue of the term.

But a personal chattel may not be given to one
duriiig lifb, with remainders to others ; yet the use
th«hneof may, and the thing itself afterwards to imoliier,
' Ey way of futttre executory devise, land may be d^*
vised to an infant in ventre de sa mere^ and be good ;
it is otherivise by a grant or gift, where there ought to
b^ one of ability to have presently.
^ 'ff tbd Ittnds^ aris devised by wiH to a person, to hold
td'lilthTor^'^^/'Ifie devisee diall have a fee-siiAple;
1^ iHfltitt^ IknCt ii^ ghren to one to dispose of ikt his pleih
sure, or when t^ man devises that such a one Dhidl be
Ms heir, and have all Ms inheritance.
' Bett'if at dfeviiieeof lands be to one, without any more
words, ot if it is' of all a man's estate, it passetb oidy
an estate for life, and not a fee by implieaiion. ; '

Bot wor^ of perpetuity are no<; esseiltid to adevise

of the lee-flimple» where it i^ipettn to be the kitaiitioii
to dtepoee of all hk intereet in an estate.— 9 T. R. 6^«

The law requires certunty in the descrif^tioB of jpeX"
sons and things in a wiU^ and if land be given to a laan
who shall marry the testator's daiighterj or to hira and
his children^ &c. it is certain eoonglu

A condition in a will, that a woman shall not marry
such a person, or without consent of another, is unlaw-
ful and void, except the portion on the marriage be li-
mited over to some other person, who in that case may
have the legacy. — 5 Vim. Ahr. 343, pL 41.

If a man bequeaths <Mie thousand pounds to his
daughter at the age of twenty-one years, and she dies
before, the legacy is extinguished and gone ;

But in case such legacy had been to be paid her at
that age, it is then debiium in praeaentif et soltendmm in
futuro, by construction of law, and the daughter's ad-
ministrator, &c. shall have it on her dying before.
. Yet it is said, that words in wills ought to be always
construed according to the intention of the parties that
make them, as near as can be collected; and the intent
in a will sometimes makes estates pass contrary to the
rules of law, with respect to other deeds.

No will has force till after the death of the testator,
but then it gives and transfers estates, and alters the
property of lands and goods, as effisctually as any deed
or conveyance executed in a man's life-time.

And thereby descents may be prevented, estates in
fee-simple, fee-tail, far life or years, may be made, and
he ^at takes lands by devise is in nature of a purdUMar.

A person can make but one wiU to take e£BN:t, though
he may make as many codieiU as he pleases.

AVB nSTBIBUTlON OF PEBSOKALTY. 163

The last will made, or where in a will tbere happens
to be two deriscs of the same thing, the last devise only
stands in force. When the testator is moved to make
luB will by fear or threatenings, in order that he may
be at quiet, &c. it may be set aside.

An executor of a wiU is he to whom another commits,
by will, the execution of that his last will and testament,
and his dnty is to assent to the devise of goods, &c.,
and to make an inventory of all the goods and chattels
of the testator, with their value, &c. in the presence of
two legatees, or other sufficient persons.

He must then prove the will in the spiritual court
by his own oath, or by witnesses, if required ; and the
copy thereof in parchment delivered to him under the
ordinary's seal is called the probate*

Where the testator has goods only within one diocese
this is done in the prerogative court of that diocese,
but if there be goods (bona notabilia) above 5^. in value
in two or more dioceses, the probate shall fall within the
archiepiscopal prerogative.

After this is done, the executor is to collect the debts
and to pay all debts of the testator before legacies, in
the following order, viz. : the charges of the funeral
being first satisfied, the king's debts shall be preferred ;
then debts on judgments, and statutes or recognizances,
those due on mortgages, bonds, and other specialties,
rent on leases, servants' wages, debts on shop books,
&c.

And if an executor pays the debts in any other order,
he is liable to the payment of any debt of a higher de-
gree out of his own estate, by the common law.

The executor is to pay the legaMs after the debts,
and he may prefer a legacy to himself; also he may

164 coirvsrAKcs and dcsceivt oi^ ia'm^xrs,

pay what legacies he' pleases first, or ^ve tb ea^ 1«^
gatee a part, in proportion, on there not being ^enof^k
for payiiig every one hisT whde legacy.

And here the es^e^Utor is not bound to bttlbt,'ii^'itt
the case of debts due frond the testator, atid nb aetkm
at law can be maintained for a legacy unlei^ he assents
thereto.

After all debts and legacies are paid,' he is t6 pay ^he
residue to the residuary legatee, and if none, he Is eoit»
sidered only as trustee for the next of kin, extept^hen
it is to be intended that the testator meant to give him
the residue.

An Administrator is he who has the goods of a man
dying intestate^ without will, committed to his charge *;
and all such goods as come to the hands of the admi-
nistrator, shall be assets to make him chargeable #te
debts to creditors, as executors are to the creditors aiid
legatees.

The persons to whom administration is grantabl€ by
the ordinary, are mentioned in a subsequent seelMii»
as are all the several persons entitled by law to the dis-
tribution of the intestate's efi^ts.

Sect. £• — As to the Descent of Lands,

Descent is a means whereby lands or tenementa are
derived to any man from his ancestors.

It is a maxim in our lawthat beads shall descend from
the father to the son ; and that if a man have two aons
by divers tenters or wives, and the one purchases -iabds

aad jdieB without issue, tbe other shall never be his
beuTf &c, ♦

Descent at common law yras either LineaU or down*
y^i^^B 'm a right linei from the grai&dfather to the father,
the &ther to the son, and the son to the grandson^ &c*,
fK> that the lineal heirs shall first inherit;

Or it was Collateral^ that which springs from the
side of the whole blood, as another branch of it ; auch
as< the grand&ther's brother, the father's brother, and
80 downwards.

The law relatmg to the descent of lands has received
great alterations by the drd & 4th Will, 4, c.106, which
m^ an act passed in 1833 for the amendment of the
law of inheritance.

The leading objects of this act are : first, to provide
tiiat a person last entitled to land shall be considered
the purchaser, unless it be proved that he inherited the
same.

Second. To declare that the heir of a testator taking
uikder his will shall be ccmsidered as taking as dsvisee
and that under : a limitation to a grantor or his heiris,
such person shall be considered as a purchaser*

Third. To declare that brothers and sisters shall not
inherit imiiiediately from each other, but that every de-
scent from them shall be traced through the parent.

Fourth. To enable the lineal ancestor to inherit from
his issue in preference to collateral relations.

Fifth. To make the half-blood capable of inheriting
next after any relation in the same degree of the whole
blood and his issue.

Si^lh* To allow descents to be traced through per-
sons who have been attainted.-^ee.^A«^4tV An*^
i'fiv^ AcUf 337»

166 C0HT£TA19C|B AXB BX90BKT W LAKDS,

In order to understimd the present law of desceoti^
a table similar to that in Mr. Shelford's valuable bool^t
has been inserted at the coBunenceineat of this work,
which will explain the whole law relating to desoacitiif
land better than any mere treatise^

Equitable estates are subject to the same rules of
descent as legal ests^ea. — 2 P. Wms. 666.

If an eldest son be an alien b<»n» he has no inherit- «;' i^
able blood in him, so that in that case the younger son
bom within the king's allegiance shall have land by
descent firom his father, and not the elder son.

Descent hp Ctuiom is, that sometimes the land ahall
descend to all the sons, or to all the brothers, wfaece
one brother dies without issue, as in gavelkind in thi
county of Kent; and until the time of William tbe^
First, called the Conqueror, this was said to be the ge-^
neral descent of the lands all over England.

Sometimes lands descend to the youngest son, as by
the custom of borough English ; and sometimes to the
oldest or youngest daughter, according to the particular
customs of plaees.

Wherever an heir takes that land, &c. which his an-
cestor would have held and taken if living, he shall
have it by descent, and not by purchase.

But where an estate is given and devised to the heir,
attended with a charge, as to ,pay money, &G. in that
case be holds by purchase, and not by descent.

One is in by purchase when he comes to lands by
legal conveyance, either for some consideiratiQn <ff by
gift, and not as heir at Jaw ; whereas descent :fiwBi an
ancestor cometh of course by act of ;law.

If one who is heir takes lands by purduMei-the hnds

1

AKS BISTEIBUTION OF PJEBSONALTT. 167

are not asset* in his hands to pay debts» &c. which if
he had come to them by descent, they would be«

Every common purchaser of lands must, at his peril,
take notice of the estates and charges which are upon
the lands ; for the law presumes that no man will pur-
chase lands without advice of counsel.

Sect. S. — Of the Distribution of Personal Property »

When a person dies without having made any will,
he is said to die intestate* In this case the law takes
care to appoint an administrator of his estate, and also
directs how it shaU be disposed of.

In ancient times the king, on such an event, took
possession by his officers of the effects, which were
applied to bury the deceased, to pay his debts, and to
provide for his wife and children, or if none, for his
next of kin.

This power was afterwards vested by the crown in
the prelates, under the notion that they were capable
of disposing of the {property most for the benefit of the
deceased's soul.

Afterwards by the atat, 2,1 Hen. 8, c. 5, the ordinary
was empowered to grant administration to the widow^
or next of kin, or both, or either of them ; and in case
two or more of the same degree of kindred applied, he
might elect whichever he pleased.

The husband has a right to administration of his
wife's effieets.

168 ooNVsrAKcs awh i>ssoent ov lands,

t{ he die before grant, his executors or adittinistnr-
tors are entitled before the wife's next of kin* - -

Of the effects of the husband, the Ordinary is to gnat
administration to the widow, or next of kin, or to dtber
or both, at his discretion.

If she renounce, then to the children, or odier nest
of kin, in preference to creditors.

The next of kin are such as are related by consan"
guinity^ that is, relations by hloodf and not by 40nUy,
Again^ consanguinity is Uneal or collateral*

Lineal consanguinity^ is where one is descended in a
direct line from the other, as father, son, grandson, &c.,
descending ; and father, grandfather. Sec, ascending.

Every generation in this direct line constitutes a dif*
ferent degree, reckoning either upwards or downwards.

Thus, in the table annexed (see p* 169), the father
and the son of the intestate are both related toliim in
the first degree ; his great grandsire and great grand*
son in the third degree.

Collateral consanguinity, is where the kinsmen are all
sprung from the same lineal ancestor as the deceased,
but not in the same direct line with him $ and,, diere-
fore, instead of being father, grandfather, son, grand-
son, &c., they are brothers, sisters, uncles, aunts, ne-
phewd, nieces, cousins, &c.

Thus, the &ther of the deceased is also lineaUy re-
lated to the deceased's brother ; but they two are col-
lateral kinsmen only*

So the deceased and his first cousin are attlkfterattn
related, because they descend from the same gsoi^
grandfather.

TABLE

or LiB«al» and Collnteral ConMBgnioity. The sqoares nnrobcred in Roman flgnrei,
— repreteat Liiif^i re4aU«»)B ; i^iom in ainall figi>i«»-->CollMaftl'CcUilMi«. • In flotb cases
the ligmft represent Ihe degree of Consangriinity to the Intestate.

IV

Gmndfatber

111
Gfeat

Grandfather

*■ W' J

II

Grandion

Gnat Great
Uncle

Great Uncle

8

UncW

2

Brother

ft
Great

Unck'e Son

First Cousiit

• Commonly called Cotuin German.

ft

First
Cotuita't Son

III

Great
Grandbon

170 CONVEYANCE AND DESCENT OF LANDS,

In order to ascertain the degree of relationship be-
tween two persons, by the preceding table, eount up*
wards from either of them to the comixioa asotefectf,
from whom they both sprung, and then doivnwaard
again to the other, reckoning a degree for eatih person,
both upward and downward.

Example 1. In what degree was the deceased re-
lated to his brother ? From the deceased to his father,
(who being father to both, is the common ancestor,)
count upwards, one degree; and from the father to the
brother downwards another; making two degveei.
Answer. — Two degrees,

2, What relation was the deceased to his cousin?
From the deceased to his father, one ; to his grand-
&ther, two (who, being grandfather to both, is. common
ancestor) ; then downwards from grandsire to uncle,
three ; from uncle to cousin, four. Answer. — Fowr de-
grees.

Of the kindred, those who are nearest in degree to
the deceased, are to be preferred ; but among persons
of equal degree, the Ordinary may make his election ;

Of the next of kin, first children, on failure of them,
the father of the deceased ; if he be dead, the mother
is entitled to administration ; and though parents and
children are both in the first degree, children are pre-
ferred.

Next follow brothers, (but primogeniture gives no
right to preference) ; — then grandfathers ; and though
both in the second degree, the former are preferred.

Next come uncles or nephews, and lastly cousins,
and the females of each class respectively.

Relations by father's and mother's side, in equal de-

▲KD DISTRIBUTION 0¥ PER80KAITT. 171

gree^ sre equally entitled ; so the half blood is admitted
as wdl as the whole blood, and the Ordinary may, at
Ins discretion, prefer a sister of the former to a brother
of the latter.

After letters issued, the administrator is, in fact, an
executor under another name. No one can be coni'
pelled to become an administrator.

If there be no will, the residue must be disposed
amongst the next of kin, under the stat. 28 Car. S, c.
10, commonly called the Statute of Distributions, and
which is in the nature of a will provided by the legis-
lature for all such persons as die without having made
one for themselves.

The following Table gives a clear view of the parties
who^ under various circumstances, are entitled to dis-
tribution of an intestate*s effects afler payment of his
debts, and will be found practically useful.

If the intestate dies, His personal representatives shall take in
leaving, the following proportions, viz. : —

One third to wife, rest to child or chil-
dren ; and if children are dead, then to
their representatives (that is, their lineal

hi/" ^ "' ^ '{ <^«**''<^****)» except such child or chil-
dren, not heirs-at-law, who had estate by
seUlement of intestate in his life* time
equal to other shares.

r Half to wife, rest to next of kin in
Wife only. J gq^^l degree to intestate, or their legal

' representatives.

, ., , ( All to next of kin and to tl\eir l^gal re-
No wife or child, i « "^ .

i^uwijeorcnuu, ^ preseutatives.

. i2

Wife and child or

171S CONYEYAirCE AND DESCENT OF LANDS,

Child, children f or i
rtprtw,talht. of Mom. 5 -*" *° "»• ^''' <>' *^'^-

OhiUren by two j Equally to all.
ives. S

If no child, children, -v ^jj ^^ next of kin in equal degree to

wives.

jj no CRiut, cnuarcn, -v ^jj ^^

or representatives of S intestate.
them* J

Child and grand- ^ Half to child, half to grand-child, who
child, c takes by representation.

Husband. Whole to him.

Father and brother
or sister.

i Whole to father.

Mother and brother ) ___, , ^ . ,,

I Whole to them equally.
or sister, )

Wife, mother, bro- c Half to wife, residue to mother, brothers,

thers, sisters, and nieces, \ sisters, and nieces.

_^., , ^ Two -fourths to wife, one -fourth to

, . ' / mother, and other fourth to nephews and
phews and nieces* i

C nieces.

Wife, brothers or sis* r Half to wife (under statute of Car. 2,)

ters, and mother, 4 half to brothers or sisters, and mother.

-^ , , c Whole, (it being then out of the sUtule

Mother only } ^, ^ '^ ,«w x

^ J of 1 Jac. 2, c. 17) (a)

JVife and mother. Half to wife, half to mother.

Brother or sister of
whole blood, and 6ro- f Equally to both.
ther or sister
blood.

(a) By this statute, sect. 7, " If after the death of a father, any of
his children shall die intesUte without wife or children in the life-
time of the mother, CTcry brother and sister, and the representatives
oC tbem, shall have an equal share with her."

AND DISTRIBUTION OF PBaSONALTY.

173

Posthumous brother >
or sUttr and mother, S

Posthumous brother ^
or sister, and brother or I
sister born in lifetime C
of father. -^

Father's father, and
mother's mother.

Equally to both.

Equally to both.

\ Equally to both.

Uncle or aunt*s chil-
dren, and brother or
sister's srandchildrsn

Grandmother, uncle,
or aunt.

Two aunts, nephew,
and niece.

Uncle and deceased
uncle's child.

Uncle by mother's
side, and deceased uncle
or attfit'j child.

Nephew by brother,
and nephew by half-
sister.

''I

or >

• -^

i
}

]

Brother or sister's
nephtws or nieces.

Equally to all.

All to grandmother.

Equally to all.
All to uncle.

All to uncle.

Equally per capita(a).

Whole, nephews and nieces taking per
stirpes{b), and not per capita.

l sti

(a) Per Capita is where the claimant takes in his own right, and
not as a Tepresentative of another ; as if the next of kin be three
brothers of the intestate, A., B., and C, the ef!iects are divided into
three equal parts, one to each. — 2 Bla, Com, 517.

(6) Per Stirpes is where persons take as representatives; as if the
deceased had three brothers, A., B., and C, and at his death, one
of them (say A.) be dead, leaving children, and B. and C. be
living; the effects shall be divided into three equal parts, of which
B. and C. take one each per capita, and the thiM pait shall be
equally divided among the children of A«, who take his share per
stirpes, as his representatives standing in his place.

174

CONT£TAKCS AND DSSCEKT OF LANDS,

ifiphmu by diceated \
Itr^thtr, and nephmot t Each an eqaid share pir papifa, and not
and nieces by deceased C per stirpes,
sister, ^

\

noion *^
iister*s >

}

Brother and grand' ^ ^j^^^j^ ^ ^^^^^

father*

Brother's grandson
and brother or sister's > Jo daughter.
daughter.

Brother and two
aunts.

Father and wife. Half to brother, half to wife..

To brother.

The following may also be gathered from the decided
cases.

•i

Mother and brother

Wife, mother, and C
children of a deceased ^
brother or tister, I

Wife, brother or
sister, and children of
a deceased brother or
sister.

Brother or sister, and r
children of a deceased I
brother or sister* v

OrandfatJiir and
brother.

i

Equally. Keilway v. Keilway, 2 P.
prffM.344; l£tra.710.

Half to wife, a fourth to mother, and a
fourth per stirpes to deceased^s brother*!
or sister's children. — Stanley ?. Stanley^ X
Aik. 458.

Half to wife, one-fourth to brother or
sister per capita, one fourth to -deceased'a
brother or sister's children per stirpes.

Half to brother or sister per eapitu, half
to children of deceased brother or nrter
per. stirpes.

All to brother. — Evelyn v. Evelyn, 3
Atk. 762.

•if, aft^ the death of the intestate, his daughter
marry and die before distribution made, her husbaad
shall have the whole of the share to which he itofsld

AMD DISTRIBUTIOtir OF PEftSOKAILTT. 175

have been entitled in right of his wife, had she been
living* But he must first take out administration to
his wife's effects.

If A. die intestate, and the only issue he ever had
were a son and a daughter, both of whom had married
and died before him^ leaving a wife and husband who
had survived A., neither this wife or husband would
have any part of A/s personal estate, (though the issue
of his son and daughter with his wife, if living, would
have the whole,) it therefore must go to the next of
kin.

If A. die intestate, without wife or child, having had
only a brother and sister, both of whom had married
and died before him, leaving a wife and husband who
survived A., neither this wife or husband would be en-
titled to any part of A.'s estate, for in this case he
would die without kindred, and his personal estate
would vest in the crown; and thus it would be in re-
spect to the husband of A.'s mother, and the husband
and wife of any one of his next of kin who had mar-
ried and died before him.

If a person be a subject of another country, and at
his death have personal property in England, distribu-
tion is to be made according to the law of that country
of which the owner was a subject. — Bempde v. John-
Hone^ SFes. 198.

If a bastard or any other person die intestate,
having neither wife, child, or other kindred, his effects
belong to the king.

In such cases the king usually reserves a small part
(it is said a tenth), and grants the rest to some one,
who is thereby entitled to administer for his own
benefit.

176 CQNTEYANCE ANB XHESCENT OF LANDS, &C.

The City of Zoficfon, the Prmfince of York, and the
Principality of Walet, hare peculiar customs for the
distribution of intestate's effects, expressly excepted
out of the Statute of Distributions.

N.B. This section is chiefly taken from Matthews*
Law of Executors and Administrators, a little work of
the greatest practical utility and accuracy.

( 177 )

CHAPTER VII.

OF THE COURTS OF EQUITY AND LAW, AND SUITS AND

ACTIONS THEREIN.

The principal Courts of Law and Equity, for the arguing,
trying, and determining of causes and suits, are the
following : —

The Chancery^ or the High Court of Chancery^ so
termed, hecause it is the highest court of judicature in
this kingdom, except that of the Parliament.

In chancery the Lord High Chancellor presides, as
the chief administrator of justice next to the sovereign;
and is invested with the king*s absolute power, govern-
ing his judgment purely by the law of nature and con-
science.

There is however in the chancery an ordinary court
of law, whence issue original rmits^ commissions, scire
faciaseSy %c, for which this court is always open in vaca-
tion as well as terra time ; whereas other courts are
confined to the term : it likewise holds plea of all per-
sonal actions by or against any ofBcer of the court.

But a cause cannot be tried by jury in this court :
for if the parties proceed to issue, the record is to be

i5

178 OF TBB COURTS OF EQUITY AND LAW,

tent into one of the courts of common law and tried
there, after which it is remanded into chancery.

Here the extraordinary Coitrf ef Eqmty is that
wher^n the lord chancellor has an unlimited jurisdic^
tion in cases of equity, which he exercises in moderating
the rigour of the law, and giving remedy hy way of bUl
and answer.

It is here relief is given to infants, notwithstanding
their minority; and for or against feme coverts; all
fraads and deceits are relieved, for which there is no
redress at common' law ; breaches of trust and confi-
dences ; and accidents, as to relieve obligors, mortga-
gors, &c. against penalties and forfeitures.

And this court may oblige executors to give security
and pay interest for money long in their hands ; order
the performance of a will ; decree who shall have the
tuition and guardianship of children, confirm title-lands,
when deeds are lost; make conveyances, defici«it
through mistake, good and perfect; and may oblige
men to come to account with each other in questions of
partnership, &c.

But in suits, where the substance of them tends to
the overthrow of an act of parliament, or any funda-
mental point of the common law, and whenever the
party can have his remedy at law, he ought not to be
relieved in chancery.

Also the chancery will not retain a suit generaUy for
any thing that is imder 10/. value, nor for lands, &e.
under 40«. per armumf except it be in a case of charity.

Where there is any error in proceedings, there is an
appeal to the House of Lords,

The Vice Cfiancellor*s Court, and that of the MasUr

^ . AN© fiU|T« ANO -AQ%10fiJi THB«£1N^ M&

^f; the X^f , are also courta of eqoityj in whidb suits
are deternuoed in like mann^ as in the Court of Chan-
f^T^.. T^exe is ao appeal to t^ Lord Chancellor from
jjie decree of the Master of the Bolls, and also from
that of the Vice Chancellor.

The King*s or Queen's Benchf is the supreme court
of the common law, wherein the sovereign of England
formerly sat in person, and is still presumed in law to
sit there, but represented by his judges* It is still con-
sidered to follow his person, and is accordingly styled
in all its processes, ** the court of our lord the now
king, before the king himself, wheresoever we shall
then be in England."

All crimes that are against the public good, though
they do not injure any particular person, are under the
cognizance of this court; for it is the custos marum of
all the subjects of the kingdom.

So that no private subject can suffer any kind of
violence or injury, against his person, liberty, or pos-
sessions, but a proper remedy is here afforded him, not
only for the satisfaction of damages sustained, but like-
wise for the punishment of the offender. — 2 Hawk. PL
Cr. 6.

This court is now divided into the Crown side, which

determines criminal matters of all kinds, wherein the

.king is plaintiff: as treasons, felonies, murders, robbe-

^ries^ breaches of the peace, and all other causes which

are prosecuted by indictment, or information, &c.

And a Plea side for trying civil causes, which holds
cognizance of all actions commenced by writ of sum-
mons, &c. ; as actions of debt, upon the case, trespass,
cjeiiCtinent, &c.

IfiO Of THE OODRT» OF TQXTtTt AMD JJkW,

The court of quel's bendi bas poim to regulate aH
the courts of law in the kiagiioiii, that they do not ex^
ceed their jurisdictioDa, nor alter their forma, && it
may reverse erroneous jadgments giTen in inferior
courts, and punish the magistrates and officers for emr-
ruption.

Into this court indictments from the inlSnrior courts
are frequently removed hjceftwrari; and it may award
execution against persons attainted in any other oonrts,
or even in Parliament, on removal of the recmd and
their persons by a habeas corpus^ — H, H, P. C. 139.

Likewise it grants writs of habeas carpus to relieve per-
sons unjustly imprisoned ; and writs of mandarmts for re-
storing officers of corporations, &c. as also freemen dis-
franchised ; and from thence issues the writ quo t^arranio
against those usurping franchises and liberties against
the king, to seize the liberties.

This court may commit persons to what prison it
thinks fit, and bail any person whatsoever; it issues
prohibitions to other courts ; and may repeal the queen's
letters patent by scire facias^ ^c.

The Common Pleas, termed otherwise dymmon Btnch^
is one of the queen's courts now held constantly in
Westminster Hall; but in former times was moveable,
and followed the king. But; this ccmrt hath eondnued
stationary ever since Magna Ckarta, which provided
that ** communia placita non sequantur curiam regia, sed
teneantivr in aliquo loco certo"

It hath jurisdiction in all causes concerning lands
and inlieritances; and in personal and mixt actions* it
hath a concurrent jurisdiction with the Queen's Benth.

According to Fortescue, this court seems ongiHaUy

AND SUITS AND ACTIONS THEKEIN. 181

to have been the only court for real causes : but it has
no eognieance of pleas of the crown; and common pleas
are sUl pleas ^s are not such.

No persons are admitted to plead at the bar, or to
sign any special pleadings in the Common Pleas, ex-
cept Serjeants at law. — RulCf Hil, Term, 1840.

The Exchequer is an ancient court of record in which
all causes concerning the rights and revenues of the
crown are heard and determined; though it is ac-
counted the last of the four courts at Westminster,

la the Exchequer there are divers courts ; yet the
usual division of it is in two parts only, for despatch of
business ; one of which is chiefly conversant in the
judicial hearing of causes, and the other, called the
Recdpt of the Exchequer, employed in die receiving
and payment of money.

The judicial part of the Exchequer is a court both
of law and equity, the court of law being held in the
Office of Pleas, according to the course of the common
law, before the barons, and where all the officers and
clerks, the king's tenants and farmers, debtors and ac-
connlants, &c. are privileged to sue and be sued in like
actions as in B. R. or C. B.

And the court of equity is held in the Exchequer
Chamber, nominally before the lord treasurer, chan-
cellor, or' under-treasurer, and barons ; but generally
before the barons only, for the lord chief baron is the
chief judge.

In this branch of judicature the proceedings are by
bill and answer, according to the practice of the Court
of Chancery, with this difference, that the plaintiff must
act forth he is debtor to the king, whether he be so or

16^ OF THE COURTS Ok EZVITY AND IrAW,

not : and the complaint is always conclude with ,a
fiction, that he is, by the injury of the de&odan^ the
less able to pay the king the debts which he owey^ him
at his said exchequer.

It is in this court of equity our clergy usually ex-
hibit bills for the recovery of their tithes, &^c. Th^
queen*s attorney - general also here brings biUs for
any matters concerning the crown ; and a bill may be
exhibited against the attorney-general by any person
grieved, in any cause prosecuted on behalf of the queeUf
to be relieved therein*

The leading process here is the writ of stJ)poe»a*

For difficult matters in law there is a Court of E^
chequer Cliamber, where all the judges are assembled,
and into which causes are adjourned when there is a
writ of error sued out against the judgment of any of
the courts of common law.

It is also in the Court of Exchequer Chamber wber^
crown cases reserved for the opinion of all the judges
from the various circuits, are heard and determined.

The Court of Bankruptcy was established under the
provisions of the statute of 1 4r ^ Will, 4, cap. 56 ;
and consists of a chief and three other judges of thai
court, which is declared to be a court of record ; and *
also of six commissioners.

The judges of this court may form a court, of review
to control and determine all matters in baakruptcyt in
like manner as the Lord Chancellor formerly did.

The commissioners individually attend to . the early
proceedings in fiats of bankruptcy, and sit in different
courts.

There are two subdivisional courts of the commis^

AKD SUITS AKD ACTIONS THEREIK. 183

siooers, to whcym application may be made by petition,
nation, or special case, according to the rules and re-
gtdattons laid down by tbe act above referred to.

Thb Insolvent Debtors* Court was also created by act
of parliament, which authorized the king to appoint a
chief and two other commissioners, being barristers at
kw, as judges thereof.

This icourt is a court of record, and the commis-
sioners hear and determine all cases before them upon
petition of the insolvent debtors, and either grant the
debtors their liberty, or remand them, or dismiss their
petition, and in many instances adjudge them to be im-
prisoned for terms not exceeding three years, according
to the several cases.

The Assizes are the courts where the writs and pro-
cesses of assize are taken before an assembly of knights,
and other gentlemen, with the judge or justice, in a
certain place, and at a time appointed.

In respect to which, all the counties in England are
divided into six circuits, and two judges are commis-
sioned to go each circuit, who hold their courts of
assizes twice a year in every county except Middlesex,
and try and determine causes both civil and criminal.
In Middlesex and London causes are heard and deter-
mined at the nisi prins sittings after each term.

There are also two Welsh circuits, one judge only
being commissioned for each, to hold courts of oyer and
terminer in the spring and summer.

By commission of oyer and terminer directed to tlie
judges and many other gentlemen of the county, and a
commission of gaol delivery, they are authorised to try

IM OF TfiTB COVWSn OT SQUITT AMB tAW,

treasons^ felonies, and every prisoner in gaoi, eomtnkt^
Sot any offence whatsoever.

And by their commission of asdze they are em-
powered to take assizes, and do right upon writs of as-
size brought before them by such persons as are pat o«it
or disseised of their lands and possessions ; but this k
now usually done by ejectment.

Also by commission of nisi priuSf civil causes, dravihfl
•to issue, are brought down in the vacation, and tried at
the assizes by a jury of twelve men of the county
where the cause of action arises, before the day of ap-
pearance appointed for the jury above.

This is ordained for the ease of the parties, jury, and
witnesses ; and on return of the verdict given by the
jury to the court above, the judges there give jufdg-
ment.

Where causes are too difficult for the judges of- as^
size, they shall be referred to the justices of the bendi
■to be ended.

The County Court : this is the chief of the inftrior
courts, and is a court kept by the sherifis of every
county, being divided into two kinds ; one retaining the
general name, held monthly by the sheriff or his de*-
puty :

The other called the Tournf which is held but twice
a year, viz. within a month after Easter and Mkhad*
tnas; and after this is the queen's Leet through all the
county, to inquire of treasons, felonies, and breaches of
the peace, &e. and punish offences: it is a court of
record, of which the sheriff is judge.

Itds observed that before the courts of Westminster
vsere erected, the ooniity courts were the chief ooarts

AND ftUITS AND ACTIONS THE&IIN. 105

pf ih^ kiBgd^MED ; aod in former times had the cogni-
zance of great matters, as appears by Glanvil and otfaek*
wnterii till they were reduced by Magna Charta.
' But die county court still retains the determinatiim
jof eertaia trespasses and debts under 40«. And by
viitue of a writ ofjusticies the sheriff may hold pka of
debt and other pelsonal actions above that sum ; for
thja writ is in the nature of a commission to him to do it.
. By Recardarif Sfc* causes are removed out of this
court into B, R.

The Cnurt Leet is a court of record, ordained for pu*
nasbroent of offences against the crown, and is said
to be the most ancient court in the kingdom.

This court is incident to an hundred, as a court baoron
is to a manor ; and it inquires of all crimes and of-
fences under high treason ; but such as are punished
wiih loss of life or member are only inquirable and
presentable here, and to be certified over to the justices
of assize.

Anciently this court was called the view ofjrank^
pledge, because the king was there certified by the vteur
of the steward how many persons were within every
leet, likewise persons were here bound with sureties or
pledges for their truth.

All persons above the age of twelve years, having
remained within the leet for a year and a day, may be
sworn to be faithful to the king by our old laws ; and
the pe<^e are to be kept in peace, &c.

And every one from that age to sixty is obliged to
do suit in this court, except peers, clergymen^ &c»^ and
unless they are liable to appear at the sheriff's toamn.

The steward is the judge of the leet, which ought to

186 OF THE COITBTS OF EQUITY AND LAW,

be held twice every year, in like manner as the tonm;
but sometimes it is kept only <Hiee a year, and tbat by
custom is good. And here the steward has power* to
elect officers as constables, tithingmen, &o. as wteU as
punish offenders.

In this court the usual punishment is by .fine and
amercement ; the former assessed iy the steward, and
the latter by the jury, being twelve freeholders or r««
siantSf and for both of which the lord may have an ac-
tion of debt, or take a distress.

The Court Baron is a court that every lord of a
manor has within his own precinct: and in ancient
times the lords of manors are styled barons.

It is held by prescription, and is of two natures, vir.
by the common lam^ which is the Freeholders* Courts of
which the freeholders being suitors are the judges ;
and by custom^ which is called the Customary Courts and
concerns the customary tenants and copyholders, where-
of the lord or his steward is judge.

A court baron may be of this double nattire, or one
may be without the other.

In the freeholders' court, that may be held every
three weeks, they have jurisdiction in trying actions of
debt, trespass, &c. under 40«., but on recovery of a
debt they cannot make execution, as other courts may;
but must distrain the defendant's goods, and keep liheni
till satisfaction is made.

It is in the customary court baron that copyhold
and customary estates are passed by surrender»i ad-
mittances, &c. But this court is usually held only
once or twice a year along wish the court leet, unless

AND SUITS AKD ACTIOK9 TBKRXIK. 187

it be on purpose to grant an estate, in which case it is
hdd as often as requisite.

.Here the homage jury of copyholders inquire that
dxeir lords lose not their services, duties, or customs,
but that the tenants do their suits of court, pay their
seats and heriots, &c.

They also present the deaths of tenants, surrenders
of estates, and all trespasses, &c.

By certain local acts, courts are appointed with-
in certain limits, to try, by the summary inquiry of
certain householders, of the truth of pleas under 5/.,
oaUed Courts ofCoiucience, and persons suing for such
demands in the superior courts will be liable, although
they succeed, to pay the defendant his costs of suit,
upon a suggestion that the cause was under 5L and
ought to haye been tried below.

Sect. 2, — Of the several Forms of Actions prosecuted

in the Courts of Law*

The miction of Assumpsit is a form of action at law
whereby a compensation in damages may be recovered
lor the injury sustained by the non-performance of a
parol agreement. — Selw, N, P.

Agr<eements are distinguished into agreements by
specially and agreements by parol, and the law of
England does not recognize any other distinction.

If agreements are merely written, and not specialties
(that is, under seal), they are parol agreements.

188 OF THE COURTS OF EQUITY' AND LAW,

The action of assampsit is confined to agreements by
parol, the action of covenant or debt being the proper
remedy for the non-performance of agreement by spe-
cialty.

Every promise upon which an action of assumpsit
may be maintained for its non-performance, must be
founded on a sufficient consideration, that is, a consi-
deration of benefit to the defendant, or benefit to a
stranger, or of damage or of loss sustained by the
plaintiff, at the request of the defendant.

This action may be brought to recover damages upon
breach of promise of marriage, upon non-perfomiahce
of an award, upon attornies', apothecaries', and trades-
men's bills, for the recovery of servant's wages, for not
accepting or not delivering goods, for goods sold and
delivered, for work and labour, for money paid or lent,
for interest, and also on an account stated.

The Action of Debt is a suit given by law where a
person owes another a certain sum of money, on bond,
or contract for a thing sold, which the debtor refuses to
pay at the day agreed; then the creditor shall have
this action against him to recover the same.

And where money is due upon any specialty, that is
by deed under hand and seal, this action and no other
lies, except upon covenants under seal.

Here if a person acknowledge by deed, that he has
so much of another's money in his hands, an action of
debt will lie for it ; also where one owes money to ano-
ther, who hath his note without seal, action of debt will
also lie.

Action of debt is generally prosecuted on a billj bond.

AND SUITS AMD ACTIONS TH£&EIN« 189

or lease, &c. And in debt on single bill, a defendant
may plead payment before the action brought, in bar
thereof; and on bond, he may bring in the principal,
interest, and costs, pending the action, and thereupon
be discharged. — 4 Sf 5 Anne^ c. 16.

The Actum upon the Case is a general action that is
giv^n fpr redress of wrongs aiid consequential injuries,
done without force^ and which by law are not provided
against.

It is said to have its name on account of the whole
cause or case being set forth in the writ, and there is no
otlv^r action adapted to the case.

By statute it is ordained, that this action shall be had
rather than any persons shall depart the king's courts
remediless ; wherein there may be the like process, as
in actions of debt or trespass. — 13 Ed, 1.

In general, action on the case lies for nonfeasancef
where a person omits that which he ought to do ac-
cording to promise, to the damage of another ; and for
malfeasance, when one does something which ought not
to be done ; and m%sfeasq,nce where a thing is under-
taken, or the law requires a person to do it, and he
doth it otherwise than he should.

The actions are as various under these heads as the
torts and injuries upon which they are founded.

For deceits in contracts, bargains, and sales ; as where
one sells another adulterated wine, corn full of sand or
gravel, wates.by false weights or measures, &c. ; war-
rants a horse to be sound, or clothes to be of such a
lengtbi and they are not so, action upon the cas^ will
lie.

So for any private nuisance or annoyance to a per-

190 OF THK COU&TB OE XQGITT AVD £AW,

son's* bouse, water way, light, or air, by building, di-
verting, stopping, &G., whereby be is endam^ed.

The Action of Account is an action that lies i^ainst
a person who, by reason of his office or business- un*-
dertaken, is to render an account to another, but refuses
to do it ; as a bailiff or receiver to a lord and others^

This action is now not so much used as fomua'ly,
there being no damages given by it.

The Action of Covenant is such as is brought where
a man is bound by covenant in a deed, entered into by
him and other persons, to do or not to do some act or
thing agreed between them, when he hath broke the
same.

A person makes a lease for years, and then turns the
lessee out of the lands, he may have action of covenant
against the lessor, though there be no express covenant
in the deed.

Yet, in case a stranger enters before such lessee, he
shall not have an action upon this ouster^ because he
was never a lessee in privity to have covenant.

Action of covenant lies on a bond, for it proves an
agreement ; though when only a hand is to a writing,
and no seal thereto, covenant does not lie, but action
of the case upon breach of the agreement*

The Action of Detinue is an action that lies against
one who has goods or other things delivered to him t9
keep, and he afterwards refuseth to deliver l^m*

For any thing certain and valuable, wherein one may
have property, detinue will lie ; in which action, the
specific thing detained is generally recovered^ and not

AND SUITS AND ACTIOITS THEREIN. 191

damages; though if a man cannot recover the thing it-
self, he shall recover the value of it in damages, and
also for the detainer.

J£ fin the delivery of goods, the person to whom
they axe delivered dies, action of detinue may he
hmoght against his executors^ or any one to whose
hands they come ; and where the goods are delivered
over to another, this action shall be immediately had
against the second person.

And notwithstanding the party deliver the things to
a person that has a right to the same, yet it is said he is
dhargeable.

A man may likewise have a general detinue against
one that finds his goods; but if, before the owner brings
his action, the finder sells them, or they are recovered
in execution, &c. he cannot bring detinue. — Fitzherb.

There is an action for detinue that lies for deeds and
charters^ which make the title to lands, and here the
defendant shall not wage law, nor in trover and con-
version^ though in a common action of detinue he may
do it.— 2 Inst. 107.

The Action of Tirwer and Conversion (which comes
firom the French trouvevy mvenire)^ is a special action on
the case^ that lies against a person, who, having found
another* s goods, refuses to deliver them upon demand.

Or it is where a man has in his possession the goods
of another by delivery to him, or otherwise, and the
person so possessed converts them to his own use with-
out the owner's consent.

And this action lies for the recovery of the damages
to the value of the goods, &c.

■It is called trover and conversion because the plain-

19^ on TH£ CQURT9 OF EQUITY AKP X.A.W,

tiff in the. action siirioii^ft that he lost aiwh aQ4.
goods, and that the defendant found them, and at.«iiek
a place converted them to his own «8e.

But here the bsing is only a mere suggesMoih ap4ili^
no respect material. . .|

If a person finds goods, and dotltxefitfeto^ddMer
them to the owner on demand, this is evidence of ianoi^
version in law; yet he. may answer, that he does AOt*
know whether the person demanding ia the righje owner'
or not, and then it is held to be no conversion. ■ /

Although a defendant tenders the goods, ov thtegfEi-
aller a demand and refusal made, or even if they'^comd*
into the plaintiff's possession, neither of these thiogmi
will purge the former wrong, or make satisfaetion feolhe-
plaintiff for detaining of the goods.

For that shall only go in mitigation of the damages*-,
but not to the right of the action of trover^ which the,
party is still entitled to.

In case one puts out his cattle to pasture, and thenr.
sells them, the buyer may have action of trover against
the farmer, &c, if he refuses to let them go till ^id(4>r.

Here the farmer's remedy must be had by action fqr,
what is due to him for depasturing the cattle*

And he may not detain them for the debt, aa in the
case of an innkeeper, or tailor, &c.f«r things in- thtir
custody.— Cro. Car. 271, 272.

• , <

The Action of Slander is an action on the<!ase brcwght
for words whereby a person is i>.jured in his reputa-
tion.

And for any words ^oken of another which a£fect
his life or liberty, office, trade, or tend to his lost of
pre&cment in marriage, or service, or to his disinbe-

AND StTlTS AND ACTIOKS tBEBElK. 19^

ykuice, or which occasion any particular damage, this
aeticm lies.

So it is when words are in general maliciously spoken
ei a per8on> for which^ if true, such person might be
punished.

Bat if the words are spoken in prosecuting a cause in
as ordinary course of justice, as where a lawyer in
pleading shall utter any words according to his instruc-
tions, those words will not maintain an action.

Also, in other cases, if the defendant can make proof
of the words, he may plead as a special justification
that they are true. So he may plead that he spoke
them on the authority of another person whom he
named at the time.

If a person be prosecuted by way of information for
a Uhel against another, it is not material whether the
matter be true or false, he shall nevertheless be punished.
— Hob. Z5^, " Lubriciim linguis non facile in 'pcenam,

The Action of Assault and Battery is an action of
trespass against a man's person, where any injury is
done to another in a violent manner : and such offence
is also indictable, though it is usual not to prosecute an
indictment, but to bring this action only for damages. —
Termes de Ley.

But if a person be assaulted or beaten, and he hath
no witnesses to prove the fact, the party, instead of his
action for the battery, may bring an information in the
crown office against the aggressor, and there he shal)^
be fined to the king. And it is held that the least
touching of another person in anger, is a battery, which*
may be committed either by pushing, jolting, or fillip*^

K

19|< op TH£ OOUftTS OV EQUITY AKP S^AW,

pifig upon the nose, &c.; and spitting in a man's &ce>

is battery, if not done by accident.

The laying hands gently on one is not battery to
ibund an action ; the law will not presume any datnage
in such case, and the defendant may justify taoUiier
nUMM impomtit.

If a person is beaten by another, ha may likewise
reti^rn it, and plead that the plainti6rs battery waaocca*
sioned by his own first assault (^on <usauU demewe)t
whereupon the defendant shall go quit, and the plaintiff
be amerced.

For the battery of a person's wife, child, or serviuit,
the husband, father, or master, shall have this action*

The Return of Trespass is that action which genemlly
lies for any wrong or damage done with force and arKos
by one private man to another ; and it is sometisses
against the person, and sometimes against his lands and
goods.

An action of trespass lies where any one makes an
tntry on another*s lands, and there does dami^e ; also
trespass vi et arms may be brought by a person who
has the possession of goods, or of a house or land» if he
be disturbed in his possession.

To ent;er into a house against the will of the owner^ is
a trespass for which an action lies ; but a man xnay k|«r«*
folly come into the house of another, to demand mooeyt
&c. yet it has been held, that if a person has a horse in
another man's ground, and he enters th^ein to take it
away without leave, action of trespass lies agepnat.huiu

And this action will lie for breaking a person's dose
^ ground, or driving a cart and horsf^a ov^ his kmd,
where there is no way for it; for entiokgooxn of another

AVD maaa Am AcrumM TBXSinr. 195

with cattki enttiDg of trees oo the haid, or damaging
the grass.

So where one breaks the doocs, windows, &c. of
another's house, or fences of lands ; or diases GatkLe
by which means they die, or are injured; or if he fish
in anocfacr's pond ; or pluck up garden herbs and roots ;
or tear a bond, or other writing, &c.

Though if the jury do not gire 40^. dainage in
trespass, the plaintiff shall have no more costs than
damages ; unless the title of the land come in question,
or something of the plaintiff's be carried away, &c.
Stat. 22 ^2S Car. ft, c. 9, s. 1S6 ; or the judge will
certify, that the trespass was wilful and malicious.

The Action of Wcuie was an actkm which formerly
was brought where any waste or destruction was made
eidier in houses, lands, or wooda, &c» by tenant fov life
or years, to the daan^eof the heir, or him in reveraion
or remainder.

As if any such tenant pulled down the house, or wil-
lingly suffered it to fall, or to be uncovered, or in decay,
and did not repair the same in due time : or.

If he c«k down timber trees on the famd with an
intent to sell them, or ftff any other purpose hot for
repairs ; or in case he cut young trees for reporationsi
when theiie was other thnber; or green wood, if there
was dry ; or more fire-»bote than was necessary :

Or in ease he cygged mines of metal or quarries of
stone, &c. without power by express cofenMi-t, or de»
stroyed deer in a paAi Amea in a dove-eote, or figh in
a pond, ifee.

In all tiiese eases the heir -of the land, or ^e person
ki reversioBi may have an aetion Ifbr wastei and shall

k2

19t OF tBK oouRfs ov Eamnrr avb lav,

tbewon YeooTer the place where socb waste- is com*
mitted, with treble damages.

The actioD of waste had long itStsa iato disose^ when
Ihis action was finally abolished by the atatoiti^fofSi^.^
Wm. 4, c. 27.

An action on the case in the nature of an action of
waste has been substituted for the ancient remedy^ land
it will also lie between persons between whom the |iro-
per action of waste was not maintainable.

And before any waste is done, any party who is in-^
terested in a reversion or remainder may have an uijwae:^
tian out of chancery to stay the waste. — Fitzherbert.

>

The Action of Ejectment is now the conunon action
for trial of titles, and recovering of lands, 8ce^ iOegally
held and kept from the right owner.

For it is become an action in the place of many real
actions, such as writs of right, /onnec2tm<, &c. which are
now abolished by statute, and were always very difficult
as well as tedious and expensive.

There is no arrest required in this aotion* as now
generally prosecuted; but if there be not ar^lenant Jn.
possession, as where a house or land ia empty, and no
person can be found to whom the dedaratioa miiy .be
delivered;

In that case the plaintiff must proQeed by seeing a
lease upon the land, &c And an original writ is v» be
aiied out against the person who ejected the lessee, -wd
then ouster and ejectment,, &c» ,

The usual course of proeeedis^ itk ^e^tme^at i^to
draw a declaration only, and feign therein .a 'le^seifof;
three, five^ or seven years, by him that>wcHiid Xrydb^
i^le, and also fei^ a casual ejector iMr defeii4s^ti)i9b^

dUfD SUITS AND ACTIONS KKEBSIN4 197

serves a copy of die declaration on the tenant in po8>^
session ;

iAad^afe tke same time gives notice at the bottonii for
lliih toapfeast and defend his title, or that he, the feigned
defendant, will suffer judgment by default, whereby the
Innue 'tenant will be turned out of possession of the

>T,o thds declaration, the tenant is to. appear the begin-
ning of the next term by his attorney, and consent to a
rnl& to be made defendant instead of the casual ejector,
flsd takes upon him the defence, wherein he must con*
fess the fictitious lease, entry , and ouster, and at the trial
stand upon the title only.

But if the tenant in possession does not appear, and
enter into the said rule in time, after the declaration
served, then, on affidavit being made of the service of
the declaration, with the notice to appear as aforesaid,
the court will order judgment to be entered against the
casual ejector by default, and thereupon the tenant by
writ is turned out of his possession.
' *In oasesaeh tenant appears to the action, having by
his attorney filed common bail, and entered into the
role afor^loientioned, he is made defendant in the decla-
lAtUfii, and put into the place of the ejector.

And then the defendant's attorney must plead not
guihy, and 'the attorney for the plaintiff draws up the
issne in the cause, a copy whereof and of the declara*
tkyn is to be deliviered to the attorney for the defend-
ant, whereupon notice is given of trial.
- In order to which, the writ of venire^ ^c. is to be
made iout and returned, and the reccxrd made up by the
plainttfTs attorney beginning with the declaration ; then
the brevkite of the cause is to be prepared, in which^
after a short recital of the declaration and plea, the

Ids OF THE COURTS OF EOUITT AlTD LAW,

plaindfiTs title is to be set forth ftom the person last
seised in fee of the premises^ under whom the lessor
claims down to the dient, the plaintilF proTing the
deeds, &c.

And after trial the proceedings are as in other cases.

By a late statute, those tenants to whom dediiratioiis
in ejectment are delivered for any lands, &c. are to
give their landlords notice thereof on pain of forfeiting
three years' rent.

And the court where such ejectment shall be brought
may suffer the landlord to make himself defendant, by
joining with the tenant, if he appears : but if he does
not, judgment shall be signed.

Though in case the landlord desires to appear by
himself, and consents to enter into the like rule as the
tenant, if he had appeared, ought to have done; die
court shall permit him so to do, and order a stay of
execution, &c. — 11 Geo. 2, c. 19, s. 13.

And by stat. 4 Geo. 2, c. 28, s. 2, where half a year*s
rent is in arrear, the landlord is allowed to serve a de-
claration in ejectment without a formal demand of the
rent or re-entry.

The plaintiff in ejectment recovers only according to
the right which he has at the time of bringing his ac-
tion ; and on his recovery by verdict, he may have an
action of trespass to recover the mesne profits of the
land from the time of the defendant's entry laid in the
declaration.

And if judgment should be against the plaintiff, he
can bring another action of trespass and ejectment for
the lands, it being only to recover possession, &c.

But in personal actions, as debt, &c. a judgment
once recovered is perpetual ; for the plaintiff can have

▲KD SUITS AN0 ACTIO VS THEHEIK. 199

no action of a hi^csr nature, but his only remedy is by
writ of error ; and sometimes in chancery.

After twenty years* adverse possession, the party
having a mere right of possession is barred of this ac>
tion altogether. Vigilantibus noiv dormientibus leges
tuboenhini^

Sect. 3. — Of Proceedings in Courts of Equity,

A Sint in Equity^ in its most comprehensive sense,
ia defined to be the form o£ application to the judicial
power of the courts of equity for the redress of injuries
alleged to be sustained.

The first step in commencing a suit in chancery is to
file a hill.

A bill is a petition in writing addressed to the Lord
Chancellor, wherein the petitioner sets forth the sul^ect
of complaint, and adds such circumstances by way of
allegation (which are technically called " charges**) as
tend to corroborate his statement, or to anticipate and
controvert the claims of his adversary, and finally he
prays such relief as the nature of his case demands,
and also process of subpoena against the defendant to
compel him to answer upon oath to all the matters
charged against him in the bill.

The^r^^ part of a bill in equity contains the address
of the bill to the Lord Chancellor, or other person or
persons who have the custody of the great seal.

The second part contains the names and descriptions
of the plaintiffs.

^00 O? THE CQUBT8 OF SQITITT SSJ> I^W,

The third part is tenoed tlie Hatinjg part of the bOl,
which consists of the plaintiff's case, or in other word%
the facts upon which he rests his title to relief.

The fourth part consists of a general cfaaige^of con-
federacy against the defendant.

The Jiflh part consists of allegations of the defend-
ant's pretences and what are called charges in corrobo-
ration of them.

The sixth part consists of an averment that the acts
of the defendant complained of are contrary to equity^
and that the only complete remedy is through the me-
diation of a court of equity.

The seventh part consists of interrogations, and ^
prayer that the defendants may answer the matters
alleged against them in the bill.

The eighth part contains the prayer for relie£

The ninth part consists of a prayer of process, that
is, that a writ of subpoena may issue against the de-
fendant to compel him to answer upon oath to all the
matters charged against him in the bill.

Bills and other pleadings in chancery are usua}Iy
drawn by junior counsel^ who, from the circumstance
of their devoting a great portion of their time, to jdraw^.
ing draft pleadings in equity, are denominated eiguifg
draftsmen. t

When counsel has drawn the draft of the bill iujl^ .
iigned it, (for no bill can be put on the file of the court
without being previously signed by counsel,) the. sqIl-
citor gets it engrossed on parchment and talipes it to hi?
clerk in court, who, after entering it in a book, files ity
from which time it is said to be a record of the court|
Itnd bears date from the day on which it is , brought
into the office.

' AND SUTTS AKD ACTIONS THEREIN. ^Ol

' 'The clerks in court are ofl^cers to the number of
^±1 (thence termed the six clerks,) through whom a
great portion of the business of the court is transacted,
especrally that relating to the pleadings.

The bill having been filed, the next step for the
pldjntifF's solicitor is to sue out a writ of subpoena to
appear and answer, which is a process issuing out of
and under the seal of the court, directed to the de-
fendant, commanding him to appear and answer the
bill.

A copy of the subpcena is then served on the defend-
ant, who on such service is obliged to appear within
fcur days, or if a country cause, within eight days*
- If the defendant refuses or neglects to do so, he is
said to be in contempt^ and the court awards certain
process against him, thence called proce^^ ofcontempU

The defendant either voluntarily or by means of the
process above described, appears, his appearance being
effected by his solicitor instructing his clerk in court
to appear to the bill in due form.

.The defendant then constructs his defence to the bill,
aftd this defence, according to its nature, will either be
wha't is termed a demurrer, a plea^ a disclaimer ^ ox an
a^sidtr.

A demurrer is a defence by showing some defect on
the fax^e of the bill itself, or in the matter contained in
it ; aV in the case of a bill not being framed correctly ;
or iti case of the facts therein stated being insufficient
to fi)und a decree upon ; or in case the plaintiff on his
ov(ni showing appears to have no right.

' A* pled is that mode of defence by which a defendant
endeavours to state some new fact as a feasop for the !
cause being dismissed, delayed or barred : as a plea to

k5

M2 or nts cowrs of bqijitt and law,

Ae jwMiHmn^ whieh endaivcan to dww that tbe
«ourt has no cogniBanee of tfae cmaae ; or by sliowiiig
flome matter in bar of the snit, and in co Mc qa cn c o of
vdiich tbe plaintiiTcan demand no rdief.

A plea ther^yre is not like a dnmorrr, a defence
arising from some defect on the huce of the hill itseU^bnt
a defence arising out of new matter brought forward
by die plaintiffl

A Disclaimer is a mode of defence which a defendant
resorts to when be has no mterest or concem in the
snhject-matter <^ the soit, and defends hiauelf by du'
elaiwung all right or title thereto, and prays the cont
to dismiss him aoccnrdingly.

An Antwer is the most nsnal defence of aH those
enumerated, and is that by whidi the d^isndant oon-
troyerts the case stated by the plaintiff^ or denies some
parts of it, or admits tbe case as stated l^ die plaintiff
in his bill, and submita to tbe judgment of the court
diereon.

A Rep6eatimi is nothing mare than a general ie[dy to
die defendant's answer, and by which he avers bis bill
to be true, and the defendant's answer to be direcdy
die reverse, and which he is ready to prove as die court
shall award.

Upon diis die defendant re^otns, averring tbe Mke on
his side, and hence issue is joined upon the fects in
dispute.

This brings the fleoAi^s to a tenninatiatty and the
next step is the axaiiimalisii of wwfatiirr upon die feets
in dispute between tbe parties.

AND SUITS AKD ACTIONS THXKBIN. ^3

When the parties have arrived at issue, the next step
is for them to collect the hest evidence they can in sup-
port of their respective cases.

For this purpose they instruct their counsel to pre^
pare interrogatorie* for the examinatioii of their wit-
nesseSa

In Chancery the witnesses of the respective parties
are not examined viv4 voce in open court, as at common
law, hut upon written interrogatories, framed by counsel
and submitted to the witnesses out of court, and their
answers or depodtions taken in writing.

When these interrogatories are engrossed on parch*
irient, they are left to be filed with an officer of the
court termed an Examiner^ who examines the wit*
nesses upon the interrogatories before him.

When the witnesses reside beyond the distance of
twenty miles from town, their examination, instead of
being taken before the examiner, is taken before four
commissioners appointed for that purpose, who proceed
to examine the witnesses upon interrogatories in the
same manner as has been already described.

When all the witnesses have been examined, the de-
positions made to the iaterrogatories by the witnesses
are kept private, until the time of pMicaiion as it is
termed, that is, until the time arrives when they are
permitted to be made public.

Publication passes, that is, they are made pubhc, by
a rule of court for that purpose, which is thence termed
a rule to pass pubUcedion, after which the depositions are
open for the inspection of all parties.

When publication has passed, the parties nsoally take
copies of the depositions, and the caus^ is in a proper
condition to be set down for hemng ; and accordingly

204 OF THB COOSTS OF BQUITY AVI} LAW,

«ither the plaintiff or defendant nay pxocure the cause
'to be so set down.

When the cause has thus been set down for he;aririg,
the next step is to sue out a subpcena to h^ar judgrmsntf
to be served on the opposite party, in order that he
may attend in court on the hearing of the cause to b^ar
the judgment of the court; for the court is unwilling to
pronounce its decree in the absence of any of the par-
ties to be affected by it.

When the cause comes on it is conducted in the fol-
lowing manner : The pleadings are opened by the junior
€x>unsel of the plaintiff) after which the senior counsel
on the same side goes fully into the case, stating the
matters in issue between the parties, and the points of
equity arising therefrom, after which the evidence in
support of the plaintiff* 's case is read ; that is, the de-
positions of his witnesses, the admissions made by the
defendant's answer (if any), and any exhibits that may
be necessary are produced.

On the plaintiff's counsel having concluded their ar-
guments, the defendant's counsel then addresses the
court, and brings forward his evidence in much the
same manner as the plaintiff* has done; after which the
plaintiff*'s counsel is heard in reply, and this concludes
the argument on both sides*

After the court has heard the argument on both sides,
it then proceeds to pronounce its sentence or decree,
which is the order of the court pronounced on hearing
and understanding all the points in issue between the
parties, and determining all the rights of the parties in
the suit according to equity.

•

The decree may be considered as the completion of

tlie sliit, and all that remains t<ybe done is the carrying
it into execution.

' In many instances a compulsory process to compel a
party to perfbrm a decree is not requisite, as parties
frequently^ and indeed generally, obey it voluntarily.

' When, however, the act decreed to be done is en-
deavoured to be evaded, it is then necessary to resort
to some compulsory process in order to compel him to
perform it.

Accordingly a writ of execution of the order (that is,
a writ commanding the party to execute or perform the'
terms of the order) is obtained, and a copy thereof
served on the party against whom the decree is to be
enforced.

- ' If the party disobeys this writ, which is issued under
the seal of the Court, he is then in contempt, and the
otdiriary process of contempt is then to be resorted to
in order to enforce the decree.

For a more complete summary of the proceedings in
the courts of equity, see Holthouse^s Law Dictionary, an
essential assistant to law students in every branch of
the profession.

SfipT, 4, — General Proceedings in Trials of Cases in th^

Courts of Common Law,

The mode of commencing an action in the courts of
common law is by issuing a writ of summon's, which is a
judicial writ, proceeding out of the court where the
action is brought by the plaintiff; this writ is directed

5B06 OF THE eOUKTS Of EQUITY AKD XAW,

to the defendanty and peremptorily commands him to
appear on a day mentioned therein in eourt, &e.

The mode of issuing a wrk of summons is amply by
taking it to the proper officers, and getting it signed
and sealed, which are done as a matter of course on
payment of the fees.

When the writ is issued, a copy of it is made, and
such copy IS served upon the defendant.

After service the party serving it testifies to his so
doing, by making an indorsement of the time, &c. on
the back of the writ.

The next step is the Afpeara n ee of defendant to the
action in court to enable the plaintiff to make his alle*
gations in due form ; this is done by his attorney en-
tering an appearance on the books of the court.

But shouhl the defendant fiul to enter such an ap-
pearance, as by law he is requured, thesx the plaiodfi
by his attorney is entitled to enter an appearance af^er
the time has elapsed, within which the defendant ought
himself to have appeared.

This step is however only taken where service of the
copy of the writ has been made on the defendant.

If an attorney undertakes to appear for his client, the
court will compel him thereto, and to put in common
bail ; after an appearance or common bail entered and
filed, the plaintiff declares against the defendant.

The Declaration is a formal setting forth in writing
of the ground of complaint of the plaintilFin die action
against the defendant, as the non-payment of the debt
upon request, &c. And die ^aintiff has two terms
after the return of the writ to exhibit his declaraliOD,

AVD SUITS AND ACTIONS THS&XIN. £07

diat term being accounted one wlierein the writ was
returnable ; but in bailable actions tfaey were reckoiied
from the putting in and perfecting special bail.

The Plea is the defendant's answer to the plaintiff's
declaration ; though in a more extensive sense, pleetd-
ing contains whatever either party alleges for himself
in the cause depending.

A plea is either general, and enters into the merits
of the cause, being a general viswer to the dedaradon,
as in debt on contract, that he the defendant owes
nothing ; or it is special, and sets forth the matter at
large, as discharge^ release, accord and satisfaction.

The .peml pka is drawH up in fonn and signed by
counsel, or it will not be received; but a general
plea need not be signed by counsel : and every plea
must be pleaded either in bar to the action brought,
ex in abatement of the writ on which the action ts
framed.

If a plea fails ia answering all the plaintiff's charge
or matter alleged, the plaintiff shall have judgment as
for waot of plea. If the {dea be not a sufficient an-
swer i& law to the cause of action, the opposite party
demurs, t. e, prays the judgment of the court on its
sufficiency. If the ground of demurrer is apparent on
the &ce, it is a general demmrrer; where only ififormal,
or rendered insufficient by extrinsic matter, such causes
must be alleged, and it is then a special demurrer.

But when a defendant pleads a bad plea, if issue be
joined theneon, and a verdict is given for the defendant,
the plaintiff shall Jiot take advantage of the insuffi-
ciency of the plea, to which he ought to have de-
marred.

£08 O^ THE COURTS OV EariTY AND lAW,

Where process is returnable the first <jt second re-*-
turns of terms, the defendant is to plead in four days^
if he lives within twenty miles of London, and if farther
off in eight days, afler delivery of the declaration, with
notice to plead, &c., and that without imparlance j or
craving a further day to advise ; or making defkult, th'e
plaintiff may sign his judgment, by late orders of court.

The defendant having pleaded to the plaintiff's^ ac-
tion and declaration ; to such plea, the plaintiff may
make a replication or answer ; and to that there may
be a rejoinder by the defendant, till the parties are at
issue in the suit on some single point.

The Isstie signifies the point or matter which issues
forth of the allegations and plea of the plaintiff and de-
fendant, which is to be tried by a jury of twelve men.

And in every issue there ought to be an affirmative
!On the one part, as that the defendant is indebted to
the plaintiff in a certain sum, &c. And a denial on the
other part, that the defendant does not owe the debt or
money charged, &c.

For there must be ever a negative and affirmative of'
it, to make a right issue ; it is also observed, that witih-
out issue joined there can be no good trial, nor ought
judgment to pass.

When the parties have thus proceeded to is^e, the ■
attorney for the plaintiff makes a copy of the issue atid
delivers it to the defendant's attorney, with notice of *
tilal : in order whereto, a writ of vetdre fadas musft be
issued, and a distringas to the sheriff to return the jury,
and the record is made up for trial.

The Trial is the examination of the cause before at

^KD SUITS AND ACTIONS THEftEIKt 209

judge and jury, and trying of the question or point in
isstie. between the parties, by the facts adduced in evi«
dence, whereupon a v^dict and judgment is given.
.. To proceed in the trial at the assizes, when a cause
Gpines on, the distringas of the jury is to be first re-
turned by the sheriff, and then the record must be de-
livered .to the judge's marshal ; upon which the counsel
being instructed with their briefs, &c., and all parties
ready^ the marshal gives the record to the judge, and
the crier calls over the names of the jury.

The persons to serve on a jury are to be freemen,
and indifferent, no ways interested in the cause, and
not outlawed or infamous ; neither ought they to be
aliens, or men attainted of any crime, or be infants, per-
sons of seventy years of age, &c. They are likewise
to have 10/. per annum freehold, and be returned from
the county where the fact arises, or is alleged to have
arisen in the declaration.

And to the jurors there may be a challenge, or ex-
ception taken, before they are sworn, on account of fa-
vour or affinity, or their having been convicted of fe-
lony, &c., or where any one of them has given a verdict
befinre in the same cause, matter, or title.

After the jury are sworn, being first elected by bal-
lot, according to the statute, they are bid to stand to-
gether, and hear their charge ; on which the counsel on
both sides open the case, first on the side of the plain-
tiff, as the proof lies on him, and looking over their
briefs, they argue the matter in controversy, producing
witnesses to prove what they allege.

Which witnesses are also to be persons of credit, dis-
interested, and not such as have been convicted either
of felony, or perjury, or persons non sance memorice.

5BI0 OF ms covKZt ov equity Am la^w,

When all the witneases haire beoi hnxd and ex*
ammed, the judge mims up the evidoioe^ and givea it
in charge to the jury to do impartially tfaereia. .

If the jury do not inunediately agree on their rer-
dict, but withdraw to consider of it, then a bailiff is to
keep them without meat, drink, fire or candley and
without being admitted to the apeedi of any, in which
manner they are all kept together till they agree and
bring in their verdict.

The Verdict (vere dictum) is the answer that is given
to the court by the jury by their foreman, concerning
the matter of fact in issue in the suit committed to the
trial; in which every one of the jurors must agree*
otherwise it can be no verdict.

And a verdict must in all things answer the issue,
or it will not be good; if the plaintiff fails to prove his
issue, there the verdict ought to be found lor the de-
fmdant; and no verdict can make that good which is
not so by law, of which the court is to be judge.

In case any of the jurors eat or drink, at the diarge
of the party for whom they give their verdict, or if
either of the parties, or their attomies, do say any
thing to the jury which relates to the cause, before
they are agreed on the verdict, as ** that it is a clear
cause,*' or ** I hope you find for such a person," &c*
Or if a witness be sent for by the jury, after he is gone
from the bar* and he repeats his evidence again; in
any of these cases the verdict shall be void, and set
aside.

Also the jurors may be fined, for being tampered
with ; and an attaint will lie against a jury for giving
their verdict contrary to evidence, where any corrup*

AND «UIT8 AKB ACTX0K8 TBSKCIK* 211

tion «ppearB| on which, being CDBvioted» thej are Hable
to a v«ry severe punisfaioent; like^^nee if they take any
thing to give a verdict, they shall forfeit ten timea as
zQuoh as taken, and be in^risoned for a year.

The jury being returned to the bar, and ready to
give in their verdict^ tlie plaintiff is then called, and if
he do not a|^ear, a nonsuit shall be recorded, &c« but
if he appears, the clerk of assize asks the jury whom
they find £[>r, and what costs and damages, and 8»
enters it on the panel, and repeats it to the jury, which
finishes the trial.

And after the trial is over, the associate delivers to
the plaintifi's attorney the rec<nrd with the diHrkigaf^
and the names of the jury annexed^ on the back of
which he indorses the substance of the verdict, and
then upon the back of the record is engrossed the
postea, to this effect :

*That afterwards the plaintiff and defendant came
before such a judge, and the jury was elected and
sworn, and found such verdict and costs, &c.'

This is to be carried to the derk of the poateas to be
marked^ and afi;er delivered to the clerk of the rules,
and he makes a four days' rule for judgment, (that
time beii^ allowed the defendant to move in arrest of
judgment) and when such rule is out, if it be not ar*
rested, the judgment is fit to be entered.

The Judgment signifies the determination or sentence
of the judges upon the sok or action tried; whidh, if
given contrary to the verdict, will not be a good judg**
ment.

In trials at the assises, the record is generally kept
by the associate till next term, when he is to be called

S12 OF THE COtRTS OF BQUITY AND LAW,

upon for the same^ Und then it is inarmed, and a rule
taken out as aforesaid; and therenpofil judgment is
signedy «and entered on a roll, on which a tbrit ofexecu^
turn is awarded, against either the bddyi goods, or
iandt, of the defendant.

New TriaU are granted in several cases; as where
there was not sufficient notice given to the defendant
of the former trial; or if excessive damages are as-
sessed by the jury ; or a verdict is given against evi-
dence ; or in case any fraud appear.

Though a new trial shall not be allowed for want of
evidence at a former trial, which the party might then
have produced.

Trial at Bar is ordained when causes require great
examination, and the trial in question is difficult or in-
tricate, for the better satisfaction of the parties con-
cerned.

And in order to such trials^ the juries and witnesses
must come to the courts at Westminster.

Bill of Exceptions is where the plaintiff or defendant
in a suit alleges any exception to the judge's opinion,
which may be put down in writing, and signed by
counsel, &c. and here the court above proceeds to
judgment according to the exceptions tendered.

Writ of Error is that writ which is brought by a
plaintiff or defendant in any action, who is grieved by
the proceedings and judgment given therein ; and
which any person damnified by error in a record, or

AN1> amTS^A|TJ> ACXIOI^S THEBKEK.

218

^ho can be supposed to be |yyared tbefeby» may briog;
on which the judgment may be reversed.

The«e writs of error are returnable from the court
in which the action is tried to die Exchegwr Chmnherf
and lastly, to the Lards in Parliamenii the supreme
tribunal.

And thus we may observe, through the abundant
care and punctuality required by law in the trial of
causes, there is as much as art and conscience can oon^
trive against corruption, and in favour of right*

■»

'*. i I .tU

' 1 - ■ • . V ;

( «1* )

CHAPTER Vm,

WORDS OF ART AND TERMS OF LAW IN GENERAI. USE.

In a work of this description comparatively few of the
terms known to the law can or ought to be included;
but the student will find this deficiency very ably sup-
plied by Holthouse's Pocket Law Dictionary, already
referred to in a previous Chapter.

Terms of the Law are such artificial or technical
words and terms of artf as are particularly used in and
adapted to the profession of the law : and the most
considerable of these relate either to writs and process
of the courts^ or the practice of pleading, and contain
as follows :

Abbroachment is the forestalling of a market or fair,
by purchasing' the wares before they are ther^n ex-
posed to sale, and then selling them by retail. — Tennes
de la Ley, 5*

Abet^ from ahettare, to stir up or incite, s^^nifies, in
our law, as much as to encourage or set on. An

WOftDS Of AKT AND TERMS. 21S

abettor, therefore, is an instigator or setter on, one that
pr<Nxiotes or procures a crime to he committed.

Abeyance is derived from the French word beyer, to
expect, and signifies that the fee or freehold of land is
not vested in any one, but stands, in consideration of
law, in waiting or expectation of an owner or proprie-
tor ; for although there be no person in esse in whom
it can vest and abide, yet the law considers it as always
potentially existing, and ready to vest whenever a prOi-
per owner appears. The word abeyance hath been
compared to what the civilians call hcereditalem jaceu'
iet%; for as the civilians say lands and goods ^ojacere^
so the eommon lawyers say that things in like estate
axe in abeyance ; or, as the logicians term it, in posse^
Thus in a grant to John for life, and aflerwards to the
heirs of Richard, the inheritance is plainly neither
granted to John nor Richard, nor can it vest in the
heirs of Richard till his death, nam nemo est hares
viwentU: k remains, therefore, in waiting or abeyance
fiuriog the U&.of Richard. This is likewise always
athecase of a pacson of a church, who hath only an es-
tate therein ihr the term of his life, and the inheritance
remains in abeyance. So also when a bishop, deanj
archdeacon, prebendary, parson, or any other sole cor-
poration dies, the fee of the glebe or rectory, and the
freehold of the chucch, whether presentative, elective, or
donative, is in abeyance. So al&o if by act of parlia-
moBt the king renounces an estate^ aod by the same
act it is not vested in other person, it remains in abey-
ance.— Co. Lit. 342 b; 2 Bl, Com. 107; WaUingham^s
^as6f Phud. IkdUson, 4i2*

216 WORDS or A.RT AND TERMS

AhigefBU$ sonifies a thief who has stolen many cattle*
Thus, Braeton says, << <t quis suem turripitti jwr erk, et
si quis gregem abigents eriL" — Bract, b. 3, c. 6.

Absque hoc^ mthcul this, &c. are the technical words
of exception made use of in pleading a traverse. But
words equipollent may be used, and therefore a tra«
Verse by the words et rum are sufficient — 1 Saund, :it2 ;
5 Co. Dig. 109; Mod. Cases, 103; 1 Lev. 19« ; Luti
460, 1457.

Accedas ad Curiam was the name of a writ, wheve a
man had a false judgment given against him in the
hundred court or court baron; it is directed to the
sheriff, and issued out of the chancery. — 3 BL Com.
34.

Accord is a word derived from the French, that sig-
tiifies an agreement between two or more, where any
one is injured by a trespass committed, to make recom-
pense and satisfaction to the party grieved ; and which,
afler the accord is performed and executed, may be
pleaded in bar to any action brought for the same tres-
pass. — Ttrmes de Ley.

Addition signifies in law the adding of the estate, de-
gree, or mystery, which any person is of, to their
Christian and surnames ; for by the 1 Hen. 5, c. 5, all
persons shall in law proceedings be styled by their
name and addition. — 1 Bl. Com. 406 ; 3 Bl. Com. 30$.

Ademption signifies the taking away of a legacy ; as

OIP I.AW IK GENEKAI. U6K. $17-

if a man imd bequeathed to' anotiber a bcmd on wbsdi;
money was dae by a third pesrson, aad.befoie the will
takes effect he caUs in the money from the obligor.*-^
Chancery CaseSf temp, Talh, 227»

»• . . ■ . . .

Adniekikd is derived from the Ladn word nihilf
written of old niehUf and signifies^ a& appears by the
statute 28 Hen, 8 annulled, cancelled, or made void.—*
Jacob's Law Dtetumary,

Ad quod damnum is a writ which, it was said, ought
to be- issued before the king granted certain liberties,
as < a fair, market, &c., which might be prejudicial to
otkersj directing the sheriflP to inquire what damage it
might do for the king to grant such market, fair, &c.
It was also the ancient method of obtaining a right to
turn the course of an old road, or to make a new one ;
but in this respect the proceedings are now rendered
move easy by the 13 Geo, 3, c. 78, s. S\.»^Termes de
laLey, ^5 ; iVoy» 1^5 ; F, N. B, 141, «25 ; Vaughan,
34^1 ; Cro. Eha, St67 ; I Ce. D^, 302 ; 1 Haimkins'r
Pkas ef the Crenm, 369, 386.

Advocati were those persons who we now call pa«
trons of churches.

AfferarSi from the French affier^ to affirm, are those.
who in courts leets, upon oath, settle and moderate the
fines and amerciaments imposed upon such persons as.
have committed faults punishable at the discretion of
the Court.*-4 Co, Dig. 139.

Age^prior is where an action is brought against an

L

21 d WORDS OF ART AND TERMS

infant far lands which he hath by descent, he, bj peti*
tfon, plea, or motion^ shows his in&ncy to the caurtf
and prays that the action nmy stay, or, according to
the more technical phrase, that parol may demur imtil
his full age. — Termes de la Ley, 30.

Jgent and Patient is where a person is the doer of a
thing, and also the party to whom it is done. Thus
where a woman endows herself of the best part of her
husband's possessions, this being the sole act of herself
to herself, makes her agent and patient. This term is
also applied to those cases where the doctrine of re^
mttter prevails.

Agistment, from the French gtste, a bed or resting

place, signifies to take in and feed the cattle of strangers,

at a certain rate per week. — 2 Inst, 643; Spelmarts
Qlos.

AUa* is a second writ, which issues from the ^urts
at WeatfMnster, after a first writ has been sued out and
returned without any efiect.

Allodial stgfiifiea an inheritanee heid without any
acknowledgment to any lord or superior, as contra-di»»
tinguished from an inheritance in fee, which in its ge-
neral acceptation signifies land holden. In England
there is no such thing as aUodM ^ijpertj, fer» in con*
templation of law, all the lasda aaid tenenieBts in Eog*
land, in the hands of subjects, are haUkn mediately or
immediately of the king. ^- Wright's TemarSf 149 ;
Smith's Commonwealth of England, bk. 3, c. 10 ; CowePs

OF LAW IN GENERAL USE. ^19

Interpreter, verhm Fee ; Co. Lit* s. 1 ; 2 Inst, 501 ; 4
Inst. 192; 2 BL Cam. lOd.

Amenablef fiom the Frendi anaener, to bring or lead
unto ; in a modem sense signifies to be responsible or
subject to answer a court of justice. — Cowel,

AnuQus Curue, a friend of the court. Thus if a
judge is doubtful or mistaken in a point of law, a bar-
rister may speak to the subject, and offer his senti-
ments as an amcus curice. — Co. Lit. 173.

Anatocism signifies the taking of usurious interest
for the loan of money, when the lender extorts com-
pound interest, or joins and accumulates together the
interest of several years, and requires a new interest to
be paid for them, as for the first and true principal. —
1 Postle. 59.

Apparitor is the messenger who serves the process
of the spiritual courts, to cite them to appear, to ar-
rest them for contumacy and to execute the sentence or
decree of the judges. — AyUff's Parergon^ 70 ; 2 Btdst,
264.

Apportionment signifies the dividing of a rent into
parts, according as the land out of which it issues is
divided among one or wonce prc^rietors. Thus where
a lessor reooven part of the land, or eaters fi>r a for-
feiture into pant of the land* the rent shall be appor-
tioned.— Co. Lit. 148 ; Moor, 231.

jfyptovemenl is where a laan hath oDmnoa in the

l2

lord's WBStB, and tlie lord makes an kicloiure of purlii^^
liie waste for himself, leaTing sufficisoft oomixMHi) HRkb
egress and regress for the commoners. XUa right b
regulated hy the statute of MerUm^ SU> Heni<9t •&. "^i
tlie statute of fFestminsteri 2, 15 Edm^ I. e» 464. 99
Geo. 2, c. 36 and dl Geo. 2, c. 41 ; 1 Ro. Ah. 90» 4P^^
9 Co. 112; 2/iM/. 474; 2 £/. Com. 34; 3 B/. Com.
!240. See the case of Glover y. Lane, Mich 30 G^. 3,
3 r^m Aep. 445.

Assumpnt, from the Ladn^ is taken in the law foil a
voluntary promise, wherehy a person assumea or t^es
upon him to perform or pay a thing: and when Hoy
one becomes legally indebted to another for goods sold,
the law implies a promise that he will pay this debt ;
and if he do not, indebitaiiu assumpsitf or action on the
ease, lies against him.

■ ' • • . ■ '

AUachment is a custom in many places abroad, and
particularly in London, whereby a creditor iniiy>attedi
the goods of his debtm: in any hands wkste he 6«dedi
tliem, priyileged persons and places only excepted, • :

AU&rfiment signifies the tenant's acknowledgment of
a new lord, on the sale of lands, &g. As wham .there
Is' toiant for life, and he in reversion 'grants his Msgbt to
another, it is necessary the tenant for life should \f^{ree
to it, which is caUed attornment. But by the 4 Ann*
:^jV&anA 11 Geo. 2, c. 19, attornments ane in^afanost
«very case rendered umiecessary.--Co. IM* 3]^ t .

Average is said to signify service which the tenant
owes to his lord by horse or carriage; but is. more

OF £AW IN GEKEBAL ^nS« d^

cemmonly used to signify a contribution that merdmntt
and otiiers make towards their losses who have their
good# cast into the sea for the safeguard of the sbipi or
of -the'other goods and lives of those persons who are
li the ship during a tempest, — Park's Manme Intdt-
nmce«, 99, 1£1« 124«

Aiserment is, in pleading, the positive assertion of
some fact, or an offer to do some act. Thus where. a
man pleads a plea in abatement of the writ, or in bar
^f ^e action, which he saith he is ready to prove^ as
th^ court- shall award ; this o£fer to prove the piea is
{safled an averment: *' et hoc est paratus verificare.-^^
.5 BL Cam. 309 ; 4 BL Cam, d34.

Audita querela is a writ that lies where a person has
any thing to plead, but hath not a day in court for
pleading it ; as when one is bound in a statute or re*
ec^iEance, or where judgment is given in debt, and
the defendant's body in execution, then if he have a re*
ie^ae^,' or other sufficient cause to be discharged firom iit,
this <wr^- may be granted him against the person th9,t
hath recovered.

^or to writs of execution the defendant cannot plead ;
so that if there be any matter since the judgment to
discfeorge him of the execution, he shall have, audi^

> I

Autre droit is where a person does or suffers athiog
in the right of another. Thus executors^ administra-
tors, &c. act in oMre drmt^ that is, in right of their
testator or intestate, and not in their own right.— ^2 BU
Com. 177.

i^fi WORDS OF ART AKD tSRMS

Bar, in a legal sense, is a plea or peremptory excep-
tion of a defendant sufScient to destroy the plaintiff 'i»
action.

Base court is any inferior court that is not of record ;
as the court baron, &c. — Kitchen, 95.

Beau pleader, pulchri placitando, fair pleading, was a
writ upon the statute of Marlbridge, 52 Hen. 3, c. 11,
to prohibit a fine that used formerly to be assessed for
not pleading fairly or aptly to the purpose ; the course
now being, to punish the party by making him pay the
costs of improper pleadhigs, under an order of the
court in which they are filed. — F. N. B. 59B ; 2 Inst.
122.

Besaile, hisayeul, proavus, the father of the grand*
falser ; and, at common law, it signified a writ used
where the great-grandfather was seised the day that he
died of any lands or tenements in fee simple, and after
his death a stranger entered the same day and kept
out the heir. — F. N. B. 224. And see Booth on Real
Actions.

Bona notabilia is where a person dies, having at the
time of his death goods in any other diocese, besides
his goods in the diocese where he dies, amounting to
the value of jive pounds at least. — Perkins, 489; 2 BL
Com. 509.

Calling the pUnntiff is the ceremony which takes
place when a plaintiff is nonsuited. It is usual for a
plaintiff, when he or his counsel perceives that he has

OF LAW IV GENERAL USE 22S

joot giren evidence su0icient to maintain his issue, to
be voluntarily nonsuited, or to withdraw himself;
whereupon the crier is ordered to call the plaintiff, and
if neither he nor any one for him appears, he is Tum-
suited, the jurors are discharged, the action is at an
end, and the defendant shall recover his costs. But
this is not, like a retraxit or a verdAct, a bar to another
action.— 3 Bl. Com. Z96, 316, 376.

Capias is a writ of two sorts ; one before judgment,
called capias ad respondendum^ where an original is
sued out, &c. to take the defendant, and make him an-
swer the plaintiff; and the other a writ of execution,
called capias ad scUisfaciendumy which issues on a judg-
ment obtained, and is directed to the sheriff, command-
ing him that he take the defendant's body and imprison
him till satisfaction be made for the debt, &c. recovered
against him.

If the body of the defendant is once taken in execu-
tion upon the writ, and the writ is returned and filed,
no other execution can go against his lands or goods :
but see 1 «^ 2 Fict. c. 110. By the statute 2 Geo. 2,
persons charged in execution for any debt not exceed-
ing 100/., on petition to the court whence the process
issued^ with an account of all their estates upon oath,
might be discharged out of prison, on assigning their
effects to the plaintiff, unless the plaintiff chose to
aUow the prisoner 4(f. a day.

Caption is when a commission is executed, the com-
missioners subscribe their names to a certificate when
and where the commission was executed, which in law

S£4 WOUM OF ART AND VfiRKS

1« called a caption, or taking of thii^ ordered to b^
done.

Castigatory is the name of the instrument by which
a woman is pmiished when convicted of being a cota«-
mon scold. It is also called the trehucket of (Htcking-
itoolf which is frequently corrupted into ducMng-stoolf
because part of the judgment is, that when the offender
is placed in it, she shall be plunged into water. — 3
Inst, 319; 4s Bl. Com. 169. And see Jacobus Law Die
ttanary.

Casus omissus is where any particular thing is omitted
out of or not provided for by a statute, &c.

Cepi corpus is the return made by the sheriff upon a
capias^ or other process to the like purpose, that he hath
taken the body of the party. — f. N. B. 26.

Cestui que trust is he for whom the trust of lands or
tenements are committed to another. — Gilberts Tracts fi.

Cestui que use signifies him to whose us6 any other
man is enfeoffed of lands or tenements. — Perh, 97; Co.
Lit. 133.

Cestui que vie is he for whose life any lands or tene-
ments are granted. — Perk. 97.

Clauswn fregit signifies an action of trespass com-
mitted upon lands or tenements.

Cognovit actionem is where a defendant acknowledges

01 LAW IN GBNERAL T78B. ^tS^

or confesses the plaintiff's cause against him to be jasti
and true, and, either before or after issue, suffers judg-^
ment to be entered against him without trial. And in
this case the confession generally extends to no minre
tl^n i9 contained in the declaration ; but the defendant
may confess more if he will. — 1 Roll, 9£9 ; Hob* 178-;
S Bl. Com. 304, 397.

CoUoqukm^ it coHoquendo^ signifies a talking together
or affirming a thing. Thus, for words spoken, it must
be laid in the declaration, in an action of slander, that
the speaking was of and concerning the plaintiff. — Carth»
90 ; Modem Cases, 203. And see the case of Rex v*
Home, Cowp. Rep, 672.

Colour signifies a probable plea, but which is in fact
&lse ; and it hath this effect, to draw the trial of the
cause from the jury to the judges. — 10 Co, 88, 90;
Cro, Jac. 122 ; Lutw. 1343 ; 1 Co. 79, 108 ; 3 BL Com.
309.

Congeable is derived from the French conge, leave
or permission ; and signifies in our law, that a thing is
lawful* or lawfully done, or done with permission.-^-Xtl*
6. 420.

Continuando was a word used in a special declaration
of trespass, when the plaintiff would recover damagaa
for several trespasses in the same action. — Termes de
Le^; SLev. 94; IaUw. 1312; 3 £Z. Cofii.^212. .

Coram non judice is where a cause is brought and

l5

itftS WORDS 07 ART AND TEEMS

determined in a oonrty of which cause the judges have
no jurisdiction. — Cro, Jac. 351.

Covin, comnoy is a compact hetween two or more to
deceive or prejudice others ; as if tenant for life, or in
tail, conspire with another, that he shall recover the
land which he the tenant holds, in prejudice to him in
reversion. — Plorvd, 546 ; BronmL 188 ; Bridg. 112 ; S
Co. 83 ; Co. Lit. S57 ; 1 Roll. Ab. 621 ; 2 Inst 718.

Curia advtsare vult is the entry made when the court
take time to deliberate upon any point of difficulty,
before they give judgement in a caxLae^-^ShepheriTs
Epitome, 682.

Ctartilage signifies a court-yard, backside, or piece of
ground lying near or belonging to a dwelling-house :
as the yard, garden, and, in short, every thing that is
within the homestall or fence by which the mansion--
house is surrounded. — 6 Co. 64.

Damnum absque ir^rid signifies that sort of loss or
damage which a man may sustain without thereby re-*
ceiving a legal injury. Thus if a man keep a school
in a particular place, and another person opens a
seminary in the same place, whereby the first loses
scholars that he would otherwise have had, this is to
his damage, but it is not that sort of injury for which
the law affords any redress ; but if his rival take im-
proper methods to draw those scholars he has already
gotaway^ an action on the case lies to recover damages
for the conaequential injury he may thereby lecrive. —
8 Salk. 64.

OF LAW IK OENBEAL USE. 2^7

De bene esse is a phrase which signifies to accept or
allow any thing as well done for the present, but when
it comes to be tried or more fully examined, to stand or
fall according to the merit of the thing in its own na-
ture. Thus, on all process returnable before the last
return of any term, when no affidavit is made or filed
of the cause of action, the plaintiff may file or deliver a
dedaration de bene esse^ or conditionally. — Cro^ EUz,
68 ; Lop, 338 ; 2 Term Rep. 719 5 Mr. Tidd's Practice
of the Court of King s Bench, p. %3%.

Dedimus potestatem is a writ or commission given to
one or more private persons, for speeding some act ap-
pertaining to a judge, or to some court. It is granted
most commonly upon suggestion that the party who is
to do the act is so weak that he cannot travel : as where
a person lives in the country, to take an answer in
chancery, to examine witnesses, to take an acknow-
ledgment, to swear in a justice of the peace, &c. &c. —
Natura Brevium, 65 ; 1 BL Com. 352 ; 2BL Com. 351 ;
3 Bl. Com. 447.

Demurrer is a term from the French and Latin, sig-
nifying a delay or stop put to any action, upon sox]|e
point of difficulty which must be determined by the
court before any further proceedings can be had in the
suit ; and a demurrer is said to be an issue joined on
matter of law, which the judges only are to determine ;
or an abiding in and referring to the judgment of the
court, whether the declaration or plea of the adverse
party is sufficient in law to be maintained.

And where a defendant may demur, he must do it ;
for if he pleads in such a case, he shaU not aflerwards

2ftS womss OP ART Aim raaa

take any advantage in arrest of jodgment, or by writ of
error, &c.

Duces tecum is a writ commanding a person to appear
at a certain day in the Coort of Chancery, and to bring
with him sudi writings, eyidences, or other things, as
the court would view. So also stApaauu dmees tecum
are often sued out at common bnr, to compel witnesses
to produce on triab at nisi prius, deeds, bonds, bffls,
notes, books, and memorandums, in their power or
custody, relatii^ to the issue in question. But if the
document required be in the power of the opposite
party, or his attorney, it is usual to g^ive them notice to
produce them, and on proof of such notice, the court
will, if necessary, compel the production.

Elegit is a writ of execution that lies fi» one who has
recovered a debt or damages, against a defendant that
is not able to satisfy the same in his goods, but is pos*
sessed of lands ; and this writ is directed to the sheriff
to make delivery of a moiety of the party's lands, and
all his goods, beasts of the plough excepted, which is
done by inquest of a jury ; and the creditor by virtue
thereof shall hold the said moiety of the said lands so
delivered to him untQ his whole debt and damages are
paid and satisfied.— See 1^2 Vkt. c. 110.

Emblements signify properly the profits of lands sown,
but the word is sometimes used more largely for any
products that arise naturally from the ground, as grass,
fruit, &e.—5 Oi. 116 ; Co. Ut. 55, 56 ; Cro. ERz. 465;
Cro. Car. 575.

OF LAW IN GANBRAL U8t. ^9

Enure signifies in law to take place or be aTailaUe,
and is as much as etfectum. Thus a release made to a
tenant for life shall enure, and be of force and effect to
him in reversion.

JBger&w is an instrument delivered to a third person^
to- be the deed of the party making it upon a future
eoDditioUy whenever that condition shall be performed,
a&d then it is to be delivered to the party to whom it is
nutde. Therefore, to deliver an escrow signifies that
the deed delivered shall be considered only as a scroml^
or writing, until the condition be performed, and then,
and not till then, it shall take effect as a deed. — 2 RoU^
Abr. 25 ; Co. Lit. 31, 36: 2 Bl. Com. 387.

Esplees are the products which hereditaments, cor-
poreal or incorporeal, yield ; as the hay of meadows,
the herbi^ of pastures, and the corn of arable lands ;
the rents and services of tenures, the titles in gross of
advowsons, the timber and brushes of woods, the fruits
of an orchard, the toH or dish service of a mill, &c. all
which and such like issues are termed esplees : and, in
the old writ of right, it was averred, that the party
claiming, or the ancestor under whom he claimed, took
the esplees ; for this writ could not be maintained without
showing actual seisin, by taking the esplees^ either in the
demandant or his ancestor. — Termes de la Ley, 258 ; f •
N. B. 78, 459 ; Co. Lit. 52 ; Ddy v. King, Easter Term^
^8 Geo. 3, in C. B. ; H. Black. Rep. I.

Estovers signify to supply with necessaries, and is
generally used in law for allowances of wood made to

Z80 WOUII OF AKT AND TEUU

tcnan u, comprebendit^ bouse-bote, bedge-bote, cart-
bote, plongh-bote, &c. for repun. — BraeUm, book 3,
tract 2, c. 18 ; 1 Bl. Com. 441 ; 1 Lev. 6.

EttrepenaU is where any spoil or wa«te is made by
a tenant oo lands, to the prejudice of him in reversion ;
■8 by coatinual [doughing and drawing away the heart
of tbe land, and negtectiDg to maoore it, or not using
it with good husbandry, wberel^ it is impaired. — F. M.

Ex Mcro motu are words used in the King's charters
and letters patent, to signiiy that he grants them (tf
his o»n will and motion, without petition or soggestioD
of any other ; and the intent and effect of tbege words
is to bar all exceptions that nuf^t be taken to the
charters or letters patent, by alle^ng that the king in
granting them was abused or misled by false sugges-
tions : therefore, whenever the words ex mero laotu are
used in any royal grant, they shall be taken most
strongly against the king. — Kitchen, S5Z ; 1 Co. 451.

Ex <^kio is a [dirase used to s^ttiiy the power whidt
any person possesses by virtue of an office to do cer-
ain acts of his own accwd, without af^cation to him
ior the purpose. Thus a justice of the peace may not
only grant surety of the peace, upon the cmnplaint or
request of any person, but be may demand and take it
ex ojicw. Thus also tlie attorney-general may, by
virtue of hU office, file informations at the suit of the
king, wiiliout applyii^ to the court, as every other
person must do, for leave ao to io.—DaiUm, 270.

OF LAW IV 6XKSBAI. UftX. 2Sl

Ex parte Bignifies an act done or proceeding bad by
OBe party only.

Ex post facta is used in law to signify sometbing
done afler another tbing that was committed before. —
BCo.2%\ 8 Co. 146.

Egtingukkment signifies a (sofuoUdation. Tbus, if a
man bath a yearly rent out of lands, and afterwards
purchase the land out of which the rent issues, so that
be bath as good an estate in tbe land as be hath in the
rent, the land and rent are then consolidated or united
in one possessor, and therefore the lent is said to be
extinguished. So also, by purchasing lands wherein a
person hath common appendant, the common is extin-
guished. Thus also, lifeme sole debtee take the debtor
to husband; or if there be two joint obligors in a bond,
and the obligee marries one of them ; in these cases
the debt will be extinguished* — Termes de la Ley ; Co.
Lit, 147 ; Vaagh. 40 ; Dyer, 140 ; 1 Co. 96; 12 Co. 81 ;
Cro. EHz. 594 ; 8 Co. 136 ; Phwd. 184 ; 1 Salk. 584.

False Impri$onmefd signifies a violent trespass com-
mitted against a person by arresting and imprisoning
bim without just cause, contrary to law ; or where one
is detained in prison without legal process, or kept
longer in hold than he ought, or if he be any way un«
lawfully detained ; it is also used for a writ or action
brought for such trespass, in which generally very con-
siderable damages are recovered ; for the law favours
the freedom of a person from imprisonment.

Feigned Issue. If in a suit in equity any matter of

^$ft WOED8 OV ART AND TBRHS

fact be strongly contested, the court usually directs it
to be tried by a jury ; as whether A. is heir at law to
B., or the existence of a modus decimandU, or real and
immemorial composition for tithes. But as a jury can-
not be summoned to attend a court of equity, the fact
is usually directed to be tried in the courts of common
law at Westminster, or at the assizes upon & feigned is9^*
For this purpose a feigned action is brought, whereia
the pretended plaintiff declares that he laid a wager of
five pounds with the defendant, that A. was heir at law
to B., and then averring that he is so, brings his action
to recover the five pounds. The defendant allows the
wager, but avers that A. is not heir at law to B., and
thereupon the issue, which is directed out of the Court
of Chancery to be tried, is joined. And thus the ver-
dict of jurors in a court of law determines the &ot in
a court of equity. — 3 Bt, Com. 451.

Fieri facias is a judicial writ that lies where a per-
son has recovered judgment for debt or damages in. the
king's courts against any one, by which the sheriff is
commanded to levy the debt and damages on the de*
fendant's goods. Upon ^, fieri facias the sheriff is to
use his best endeavours to levy the money <hi the ^^eds
and chattels of the defendant ; he may sell a term f«r
years, corn growing, &c., and has pQW» to take .any
thing of the defendant's, exeept it be wearing ck>the»»'

But the goods of a stranger, in the pewesaioa of Ae
defendant, shall not be subjeet to the exeeutum ; nor
may a sheriff break open the door of an house to &a^
cute this writ on the goods of the owner, &c* -

FUuim aiqtue is .the thread or middle of the stream

OF LAW IN OENEKAIi USE. ^M

where a river parts two lordships. Thus also, fh de
mer signifies the middle ot high tide of the sea. — S
Man. AngL torn. 1, fo. 390.

«

Ftoisam is where a ship is sunk or cast away, and the
goods are floating on the sea. Flotsam^ jetsam^ and
Ugan, are generally mentioned together ; jettam being
the things thrown out of a ship to prevent her sinking ;
and ligan are those goods which, so thrown overboard,
sink to the bottom. — Lex Mercator, 149 ; 5 Co* 106 ;
F. N. B. n2 ; 1 Kebk, 657. See U Anne, c. 18, and
26 Oeo. 2, c. 1 9.

Forma pauperis is where any person has just caus6
of suit, and is so poor that he is not worth five pounds
after all his debts are paid, and excepting the property
in question ; on oath made of this fact, and a certificate
from some lawyer that he hath good cause of action,
the court will admit him to sue in formd pauperis^
without paying any fees to counsel, attorney, or clerks
in court. — See the statutes of 11 Hen. 7, c. IS ; 1 Mod*
268 ; 23 Hen. 8, c. 15 ; 3 Bl. Com. 400.

Garnishment. If an action of detinue of charters be
brought against one, and the defendant saith that they
were delivered to him by the plaintiff and another per*
son upon certain conditions, and prays that the other
may be warned to appear with the plaintiff, the writ of
scire facias which goes against him is called garnish*
ment: and when he comes, he shall plead with the
plaintiff, which is called the interpleader. — Termesdela
Ley, 369.

ft34i WO&DS OF ABT AND TfiKMS

Okbe are lands of which a vicar or rector is seised
in jure ecclesue, — Termes de la Ley^ 379.

Gros hots is such wood which properly, in some
places, either by custom or common law, signifies /tm-
ber.St Inst. 642 ; Cro, Eliz. 1 .

Habere facias pos$essumem is a writ which lies where
one has recovered a term Hot years in action, in order
to put him into possession: there is likewise a writ of
this kind commanding the sheriff to give a proper seisin
of land recovered in an ejectment. On these writs, the
sheriff may justify breaking open the house, where en-
trance is denied, to deliver possession to the party re-
covering at law.

Herbage and Faamage. Herbage is the green pasture
and fruit of the earth provided by nature for the bite
or food of catde ; and pannage is that food which the
swine feed on in the woods, as the masts of beech,
acorns, &c. — Cromp. Juris, 197. See Doug, Rep. 302,
304.

Jeofail is a word derived from the French faifaUle,
that is, ego lapsus sum, and signifies an oversight in
pleading, or other law proceedings. By the allowance
of these mistakes being found to interrupt and retard
the course of justice, the l^slature has by the statutes
82 Hen. 8, c. 80; 18 Eliz. c. 14; 21 Jac. U c. 13; 16
^ 17 Car. 2, c, 8; 4 4* 6 AntUt c. 16; and 5 Geo. 1, c»
IZy prevented them from taking e£Eect whenever tbey
are mere matter of form, after a verdict has established

OF LAW IK aSKSaAL USE. 285

on which side, in the opinion of the jury, the right in
questMHilies.— 8£/. Com. 406; 4BL C<m. 369,432.

In esse signifies any thing in being. Things are in
law distinguished into those that are in esse and those
that are only in posse. Thus any thing that is not in
actual being, but may by possibility exist, is said to be
in posse f or in potentid; but what is apparent and vi-
sible is alleged to be in esse^ or actual being. A child,
for instance, before it is bom is in passe; afher it is
bom it is in esse^ or actual being. — Co. LU, 342 ; aniep
p. 227.

Innuendo is a word that was frequently used in de-
clarations of slander and law pleadings, when they
were in Latin, for ascertaining a person or thing that
was before named, or appropriating die meaning of the
words spoken, to the plaintiff. Though an innt$endo
cannot make that certain which was uncertain before;
and the law will not allow words to be enlarged by
innuendo, so as to support an action on the case for
uttering them.

Journeys accounts is a term in our law where a writ
abates by the death of the plaintiff or defendant in a
cause, or for want of form, &c. in which case the plain*
tiff becomes entitled to hare a new writ hf journeys
accounts, that is to say, within as little time as he pos-
sibly can after the abatement of the first writ; so that
the second writ shall be a continuance of the cause as
much as if the first writ had newer abated.

Latitat was an ancient form of writ that issued out

£36 WORDS OF ART AND TERMS

of the jCourt of the Queen's B^nch, wifere the iefend^
ant could not be found in the county^ Middlese^vMt
had fled into some other county, and was allegi^ M l/^
lurking and lying hid dierein; thin writ ^was ^'direl^ted
to the sheriff, commanding him to apprehend 'Che^^de^
fendant, but it is now superseded by the Wrh o^iSttm^
nions, ...•.-.

Levant et couchant are terms in law forcatlii^ thft
have been so long in the ground of another, tbaM^i^
have lain down and are risen again to feed. The usruid
time in which cattle are said to have been levant et
couchant is supposed to be a day and a ra^t.-^Tehnes
de la Ley; 2 Ully, 167; Wood's Tnst. 190; SBk (k»^
239. •' '''

Mainour, in a legal sense, denotes the thiBj^ that a
thief taketh away or stealeth; so that when it is said
that a thief is taken in the nuunour^ it meana that he is
taken with the thing stolen in his hands or posBessiolf^
^Plowd. 179; 4 BL Com. 803.

( *

Negative is what cannot be testified or pre^d by
witnesses in our law, only an affirmative; but if a'in»i
be accused to have been at York, and there* tor- loEVe
done such a fact, he may prove the negative by colla-
teral testimony, that he was at that very sama^liine at
-another place in such company* '«> -

Negative Pregnant is a term in special pleading sig«>
nifying a negative proposition including an itnpli^
affirmative. Thus if a declaration charge the defend-
ant with having done an act on a particular day, or in
a particular place, and he plead that he did not do it

' 09^. LAW IK 6£N«BAL U8B* $S7

•

«Km{p Afarm4i^'thfi l^^anner and form as stated ia the
^\^^i^^,i%/tm^ be ioiplied afBrjooatively, that he di4
U« isi ^Q«ii9 otbex maimer or form than that stated*
^^) also, if a^man be charged with having aliened
l^d^aD^'l^e i^^ifly^ that he hath not aliened in fee, this
ifi^iSi^^jg^tive.pcegnanty for he may have aliened in tail.
This mode of pleading is faulty, but there must be a
Special demurrer to a negative pregnant; for the court
i^iU intend every plea to be good until the contrary
^f^akfy-^Dyeff 17, pi. 95; Kitclien, 2^2; 2 Lean. 24^;
|(^ftp,, Joe; 559: 5 Com. Dig.
'•. '. '« .

.> JNiKdebett that he owes nothing, was the usual plea
^i an action of debt ; but is now discontinued by R. G*
of Hil. Term, 4 WUl. 4.

. ^t/ciifitV|.writ short; nil didt signifies a failure in
lihe defendant to put in his answer to the plaintiff's de*
42l«rfttioa» &c. by the day assigned, on which judgment
.of iCQiN»etis had against him.

Nomine Poence is the penalty incurred for not paying
^ant^ ^« at the day appointed by the lease or agree-
fiftMit;f &r.tfae payment thereof. — 2 Lilly, 221; Bobart,
^f^^ S,Amief'e.l7*

» t . »

^ Hei^asmmpBii ia the general plea in a personal a^r
tion, whereby one denies any promise; made modQ.s$
firnnd as the plaintiff hath alleged.

NamettcuiJifcijaJ&sy or not guilty, is the usual plea to
an indictment or action of trespass. . ,

^$S WORDS OF AKT AKD TEKXS

Non eH factum is a plea where any acdoQ is brought
upon a bond or other deed, and the defendant denies
the execution of the deed ; all other defences to actions
on covenant must be speciaUy pleaded.

Non pros is where a plaintiff in an action does not
declare or proceed in a reasonable time; and a Nolle
Prosequi may be entered by the plaintiff, if having
commenced an action he will not proceed therein, or as
to a part of his demand.

Nonsuit signifies the dropping of a suit or action,
and is most commonly upon the discovery of some
error in the plaratiff's proceedings, when the cause is
so far proceeded in, that the jury is ready at the bar
to deliver in their verdict ; on his being caUed, and not
appearing, or not prosecuting his action with effect,
&c. whereupon costs are allowed to the defendant.

Nude contract is a bare naked cotUract without a con*
sideration; it is also called nudum pactum. A consi-
deration is the material cause of every contract or
agreement, or that thing in expectation of which each
party is induced to give his consent to what is st^u*
lated reciprocally between both parties. Thus if one
buy of me a house or other thing for money, and no
money be paid, nor earnest given, nor day set for pay-
ment, nor the thkig delivered; here no action lies £ar
the money or the thing sold, but the owner may sell it
to another if he will ; for such provisions or contracts
are deemed nuda pacta, there being no oontidexalion or
cause for them but the covenants tfaeuBdves, whid
will not yield an action ; and this agrees with the defi-

OF Z.AW IH GSNERAI. USB. fdS9

nftioft of nudam prntum as given by the civilians^
namely, mtiknn pactum eat M nulla mbest causa prceter
cmventbmem. --^ The Year 'hook, 11 Hen. 4, pL 38;
Plmd. 302, 309; Dyer, 30; Pitz. ''Debt," 126; [Ld.
Raym. ^9; 3 ^urr. 1663; 2 B/. Com. 444; Ponrel on
Contracts, voL i. p. 320 to 344«

Outlawry is where a person is outlawed, that is, de-
prived of the benefit of the law, and therefore held to
be out of the king's protection ; as where an original
writ, and the writ of capias, alias, and pkiries, have
been isstied against him, and are returned by the she-
riff non est inventus, and after an exigent for the sheriff
to demand him at five successive county courts, and
proclamation made for him to appear, 8ce. ; if he omits
so doif^ he then becomes outlawed.

A person outlawed forfdts his goods and chattels^
&c« and cannot sue in any court, only to reverse the
outlawry, which he may do for error, or when the sta^
tutes relating to the same are not exactly pursued, and
£reqttendy by merely appearing.

Oyer is where an action being brought on a deed or
bond; die defendant appears aoid prays that he may
hear the deed (a) on which the action is brought, and
also have a copy thereof, that he may consider what to
plead thereto ; and the defendant is not obliged to plead
without it;

Paraphernalia is derived from the Greek Ilapa,

(a) So called from the proceedings being fonnerly ore tenus in
the courts*

240 woEse OF aet asd teems

frteter^ and ^tpvil, dos^ and signifies in law those good&
which a wi& cYuXteDgei oeer and above her domer or join-
ture, after her hoshand's death; as fumitttre for her
chamheri wearing apparel and jewels, which are not to
be put into the inventory of her husband's effects. —
1 Ro. Ab. 911; Notfs Max. 168; 2 Leon. 166; Cro,
Car. U7\ 2 BL Com. 435; 1 Com. Dig.

ParataUf per aoailef signifies the lowest tenant of the
fee, or he who is immediately tenant to one who holds
over another ; and he is called teTiant jtaravail^ because
it is perceived that he hath frofii and avail by the land.
—F.N. B. 135 ; 2 In$t. 296 ; 2 Bl. Com. 60.

Peculiar signifies a particular parish or church that
hath jurisdiction within itself, and power to grant ad-
ministration! probate of wills, &c. exempt from the
ordinary. — Wood^s InstktUeSf 504 ; - 4 Inst. 338 ; Hob.
135 ; 2 Ro. Rep. 357 ; 5 Mod. 239 ; 3 BL Com. 65.

Pernancy y from the French verb prendre^ to take,
signifies a taking or receiving ; as tithes in pernancy are
tithes taken, or that may be taken in kind. Thus also
the person who receives or takes the profits of lands
is called the pernor of the profits. — 1 Co. 123 ; Raym.
17 ; Co. Lit. 589 ; 2 Bl. Com. 163.

Pluries is the name of a writ that issues after two
former writs have gone out without effect.

Posse Comitattts, the power of the county, which in-
cludes the aid and attendance of all knights and other
len above the age of fifteen, within the county ; but

OF LAW IN GENERAL USE. 241

ecclesiastical persons, and such as labour under any in-
firmity, are not compellable to attend. This power is
in the hands of the sheriffs, who may call it forth to
enable them to execute the process of the law, and to
do other acts for the furtherance of justice. — Lambard^
313 ; Cramptan^ 62 ; Daltan^ c. 46 ; 2 Inst, 193 ; 1
Hawk. P. C. 152 ; 1 BL Com. 343 ; 4 Bl.Com. 122.

Possessio FrcUris is where a man hath a son and a
daughter by one woman or venteTf and a son by another
woman or venter^ and dies ; if the first son enter upon
the estate of his father, and die seised without issue,
the daughter shall have the land as heir to her brother,
although the son by the second venter is heir to the fa-
ther ; for possessio fratris defeodo smplicifacit sororem
esse kanredem : but if the eldest son die without issue,
not having made an actual entry and seisin, the younger
brother by the second wife, as heir to the father, shall
enjoy the land, and not the sister. — Co. Lit. 14, 15; 3
Co. 42 ; Cro. Car. 347, 601 ; Bracton, b. 2, fo. 63 ;
Brittony c. 119 ; Fleta, b. 6, c. 1.

Possibility is defined to be " an tmcertain thing,'*
which may or may not happen ; and a possibility is
either near or remote. Thus, -for instance, where an
estate is limited to one afler the death of another, this
is a near possibility ; but a limitation to a man if he
shall marry A., and af^er her death shall marry B., is
a possibility so remote, that the law pays no regard to
it. It was formerly held that a possibility, mere right,
or chose in action, could not be granted over 3 but it
has been lately determined, that a possibility, coupled
with an interest, is devisable. — 2 Lillys Abr. 336 ; 1 5

M

24^ WORDS OF ART AMD TERMS

Hen, 7, pL 10; Hardres, 417 ; % Co, 50 ; 4 Co. 66 ;
10 Co. 48 ; d TVrm /^ep. S8.

Postea is a term in law signifying the return of the
judge, made upon the record, of what was idone intbe
cause after the issue between the parties is joined.. ,

Prender is the power or right to take a thing before
it is offered, — Sir John Peter's case^ 1 Co. Rep,

Privies is a term signifying the situation of those who
are partakers, or have any interest in any action or
thing, or who stand in a certain relation to another^ Of
privies there are five kinds : — 1. Privies in blood ; as
the heirs, whether general or special, to the ancestor,
it. Privies in representation ; as the execute to the tes.-
tcttor, or the administrator to the intestate, 3. Privies
in estates; as joint-tenants; the donor to the donee; the
lessor to the lessee^ & c. So formerly if a fi&e were* levied,
the heirs of him who levied it were privies* 4. Privies in
contract ; as when the lessee assigns all his interest.
5. Privies of estate and contract ; as when the lessee
assigns his interest, and the lessor has not aiccepted the
assignee.— JF. ^. B. 117 ; 3 Co. .23, 123; 4 Co. US ;
Latch. 260 ; 2 Bl. Com. 355 ; Tidd's Practice, 11, 12.

Prochein Amy, proximus amicus f is used in law for
him who is the next friend, or next of kin to a. child in
his nonage, and is therefore allowed to interpose in fa-
vour of the infant in the management of his- a&ir-s.-r*
1 Bl. Com. 464.

Protestando, in the law, is a certain form of pleading

OF LAW IN GENERAL USE. 245

where a defendant will not directly afiirm nor deny any
thing that is alleged hy the plaintiff, or which he him-
self alleges ; and it is likewise when a person is to an-
swer' to two matters, and by the law he ought to plead
only to one ; in which case, in the first part of his plea,
he shall say, protestando, that mch a matter is not true,
and then add, pro placito dictt, for plea saith, &c. by
which means he will not be concluded by his plea, but
may take issue upon the other part of the matter which
he has so saved by his protest.

Puis Darrein Continuance signifies a special plea,
where some new matter is pleaded, pending an action,
after the last continuance; as where a woman takes
husband, an acquittance is given, or the plaintiff enters,
&c., and this plea will be allowed at any time afler
issue, and before verdiet.

Q&antum Meruit is a certain action of the case, brought
where one employs a person to do a piece of work for
him, without making any agreement about the same ;
in this case it is by law implied, that he must pay for
the work as much as shall be reasonably demanded ;
that is to say, so much as the phwUiff hath deserted {a).

Que Estate signifies which estate, and is a plea where
one man entitling another to land, &c. says, that the
same estate such other had, he has from him. Thus,
in quare mpedit the plaintiff may allege that two per->
sons were seised of the lands to which the advowson
was appendant in fee, and presented to the church,

(a) In case of goods sold, so much as the goods were worth,
**^ quantum valebant,**

M 2

£44 WORDS or ast amd tekms

which afterwards because void; wkieh estate of die said
two persons be now has, and by Thtne tbeveef pie«-
sented, &e.—Co. lAi.lftft-, 1 Co. 46 ; 1 Lev. 190; 3
Lev. 19; Luiw.Sl; lMod.^ft; ^ModL 144; SMod.
52 ; Cro. Jac. 673.

Quoad hoc is often used m law pleadings and argu-
ments to signify oi to tlie thing named the law k so and

SO) &c.

Realty is the abstract of reed as distinguished from
perionalty.

Recoupe signifies the keeping back or stopping some*
thing which is due, and in law it is used for defalk or
diicount. Thus, if a person hath a rent of ten pounds
issuing out of certain lands, and he disseises the tenant
of the land, if the disseisee recover the land and da-
mages, the disseisor shall recoups the rent in damages.
-^Termei de la Ley; Dyer^ 2 ; 1 Cro, 196.

Respondeas Ouster signifies to answer over in an ae^
tion to the merits of the cause, &c., as where on a dila-
tory plea, or there is a demurrer to the plea, and it is
adjudged against the defendant, &c.

SciUcetf an adverb, signifying that is to say, to mi*
It is not a direct and separate clause, nor a direct and
entire clause, but intermedia : neither is it a substantive
clause of itself, but is made use of to usher in the sen-
tence of another, and to particularize that which was
too general before, or to explain that which was doubt-
ful and obscure. But it must neither increase nor

OF LAW IN OJOIEmAL U8S. 245

diiDiniah^ for it gives nothing of itself. It may, bow<-
ever, make a restrieticm where the precedent words are
not so very express but that they may be restrained. —
SmLord Hobart's Reports, 171, 172 ; Poph. 201, 204;
Cro.Jae. 618.

ScpreFadaB is a judicial writ that lies in divers cases,
but is most usually issued to call a person to show
cause to the court whence it goes out, why execution
of a judgment passed should not issue ; as where a
plaintifiP has recovered debt or damages in a court of
record, and does not take out execution within a year
and a day after judgment recovered ; in that case there
must be a scke facias to revive the judgment, be&re
the plaintiff shall have execution.

And' where a plaintiff or defendant dies, execution
majfi not be- sued out on a judgment until the writ of
sci^e facias is brought, and judgment given thereupon ;
so it is wh^ judgment ia recovered against a feme sole,
who afterwards marries, the husband must be sum-
moned to show cause why the execution should not be
awarded against bim^T-»^Z«tA tit« Sd^Fa.

On judgment being .obtained iagainst a testator, a
scire facias issues against tbe executor, . though within
a year after the judgment had ; for in these cases, where
the person is altered, there is to be a new judgment to
wanrant the execution.

This writ might likewise be brought against bail, where
the prHieiipal was not to he found, or did not surrender
himself. There is a scire facias to hear errors, as
also, lipon/a recognizance in chancery, to extend lands,
&ai . . ■

246 WORDS 01 AUT AND TERMS

Si Actionem is the Latin ccmcliisioii of a plea to the
action brought ; as where a defendant -demands jnd^
ment, if the plaintiff ought to have or nutintain his actiam
thereof, &c.

*

Solvit ad diem is a plea to an action of debt upon a
bond or penal bill, &c. whereby it is alleged that the
money was paid at the day appointed.

r

Statutes of Jeofails are those that help divers defeets
in pleadings, after verdict given ; for it is ordained,
that judgment shall be had in any suit ajfter ai lasoe is
tried, notwithstanding there may be any Jeofail or mis-
pleading.

Tantamount is where one thing amounts to another,
and then it is all one as if it were the same.- .Thii8> a
lease and release amount to a feoffment* — SheppmrtPs
Epitomef 1130.

Testatum is. a writ that lies where a defendant in ma
action cannot be arrested upon a capias in the comty
where the action is laid, and thereupon that writ is re-
turned non est inventus by the sheriff, and it is so tes-
tified, in which case a testatum writ may be sent out
into any other county where the defendant is supposed
to be, or to have wherewith to satisfy.

Traverse is a word or term taken from the Freoefa,
and, as used in the law, signifies to deny a thing aUeged
in a declaration or pleadings, &c. And a defendant's
plea is deemed ill, wherein the plaintiff's title, &c. is
neither traversed and denied, nor confessed and avoided,

OF LAW IN GBNERAL USE. f247

but although eaeh matter of fact pleaded by the plain-
tiff may be traversed, yet no matter of law may be so ;
Qor may a record which is not to be tried by jury. The
formal words of a traverse are, without tJdsy that^ in
Latin, absque hocy &c.

Variance signifies any alteration of a thing before
laid in a plea, or where a declaration in a cause differs
from the writ, or from the deed on which it is founded.
•-2 UUyt 629 ; Cro, Jac. 479.

Hem is generally where a real action is brought, and
the tenant does not certainly know what land it is the
demandant requires ; then he may pray the jury may
view or see the land, &c. that is claimed : in which case
a special writ of distringas issues, directed to the sheriff,
commanding him to have six of the jury, or a greater
number of them, at the place in question, some conve-
nient time before the trial, who shall have the whole
thing in dispute shown to them by two persons named
in the said writ, and by the court appointed. For the
present practice concerning views, as fully settled in
HiL Term, 30 Geo. 2, see Bur. Rep. 252, &c.

Venire facias is a judicial writ, whereby the sheriff
is commanded to cause a jury to appear, upon a cause
brought to issue, in order to try the same; and on
which writ, if the jury do not appear at the day of the
return of it, then a habeas corpora shall go out, and afler-
vi-ards a distress until they do appear. The distringas
i& now for the sake of dispatch the 6rst process.

Voire dire is a French term, used where there is an

348 WORDS OF ART AND TBRlfS, &C.

interested witness, not otherwise to be excepted against,
and it is prayed upon a trial at law, that the witness
may speak the truth on oath, whether he shall be a
gainer or loser by the matter in controversy ; and if it
appears he is unconcerned, his testimony is allowed,
otherwise it is not.

Uncore Prist is the plea of a defendant who is sued
for debt due on bond at a day past, wherein he says,
that he tendered the money at the time and place, and
that there was none there to receive it, and that he is
still ready to pay the same ; which plea saves the pe*
nalty of the oUigation. And so in case of any other
tender of payment.

EXPLANATION

OP

ABBREVIATIONS USED IN REFERENCES TO
LAW-BOOKS, &C.

Abr. Ca. £q. Abridgment of Cases in Equity.

Act. Actoo's Reports.

Act. Reg Acta Regia.

Add. R • Addam's Ecclesiastical Reports.

Ad. & £ Adolphus and GUis's Queen's Bench

Reports.

Al Aleyn*s Reports.

Amb Ambler*s Reports.

Annaly Reports time Hardwicke.

And Anderson's Reports.

Andr Andrew's Reports.

Anst Anstruther's Reports.

Ass Assise (book of).

Ast. Ent. Aston's Entries.

Atk Atkyn's Reports.

Ayl Aylifie.

Bac. Abr Bacon's Abridgment.

B. & Ad Barnewall and Adolphus, Queen's

Bench Reports.

B. & B. or Barn. & Aid.. . Barnewall and Alderson's Reports.

B. & C Barnewall and Creswell's Queen's

Bench Reports.

Banc. Sup Upper Bench.

Barn. C < Barnardiston's Reports, Chancery.

Barn, K. B Barnardiston's Reports, King's Bench.

Barnes Barnes's Notes, Common Pleas.

Beavan's Rep Beavan's Reports in Rolls Court.

m5

250 ABBREVIATIONS.

Benl. Bendl Beoloc or Bendloe's Reports.

Bing. R BiDgham's Common Pleas Reports.

BI Blount.

W. Black Sir Wm. Blackstone's Reports.

H. Black* Henry Blackstone's Reports. ■

Bla. Com Blackstone's CoromeDtaries.

Bligh, N. S • Bligb's Appeal Caset, Nevf Serigs.

Bl. Ap. C Bligb's Appeal Cases.

Br. & B. R Broderip and Bingham's Common

Pleas Reports.

B. N. C Bingham's " New dues" Common

Pleas.

B. & P. or Bos. & Pul. . . Bosaoquet and Puller's Reports.

Bra , Brady or Bracton.

Bridg Bridgman's Rep. or Conv.

Br. Bro Brooke, Browne, Brownlow.

Bro. Ab Brooke's Abridgment.

Br. Brev. Jud. & Ent.. . . . Brownlow Brevia Judicial. &c.

Bro. Brow. Ent Brown's Entries.

Brown, P. C Brown's Parliament Cases.

Brown, C. C Brown's Chancery Reports.

B. N. C Brooke's New Cases.

Brownl. Rediv. or Ent. • . Brownlow's Redivivus.

Brownl Brownlow and Gouldesborough's Re*

ports.

Buck Buck's Reports in Bankruptcy.

Bulst Bulstrode's Reports.

Bunb Banbury's Reports.

Burr Burrow's Reports.

Burr. S. C Burrow's Settlement Cases.

C Codex (Juris Civilis.)

C. C Cases in Chancery.

Cald Caldecott's ReporU.

Ca. temp. H Cases time Hardwicke.

Ca Case, or Placita.

Ca. T. K ' * . . Cases time King.

Cal Callis, Calthorpe.

Camp. N. P Campbell's Reports, Nisi Prius.

Cart Carter's Reports.

ABB RBTIATTOKfi . ^51

Gary Gary's Reports.

Gartb Garthew*s Reports.

Gas. T. Talb Gases time Talbot.

Gas. Pra. C. P Gases of Practice, Comraon Pl^as.

Gas. B. R. Gases temp. W. III. (12 Mod.)

Cas. L. Eq Gases in Law and Equity (10 Mod.)

Ga. P. or Pari Gases in Parliament.

Gawl Gawley.

Ghris. B. L Ghristian's Bankrupt Laws.

Gh. Gas Gases in Gbancery.

G. & P Garrington and Payne's Nisi Prius

Reports.

Gb. Pre Precedents in Gbancery.

G. & J Grompton and Jervis's Excbequer

Reports.

Gb. R. • Reports in Gbancery.

Gb. Rep • Gbitty's Reports, King's Bencb.

Glay Glayton's Reports.

CI. & Fin Clark and Finnelly's Appeal Gases.

Glift Glift's Entries.

Cockb. & R Gockburn and Rowe's Election Gases.

God. or Go J. Jur Codex by Gibson.

Go. Ent Coke's Entries.

Co. Lit Coke on Littleton ( 1 Inst.)

C. & M Grompton and Meeson's Excbequer

Reports.

G., M. & R Grompton, Meeson and Roscoe's Ex-
cbequer Reports.

Go. M. C. Coke's Magna Gbarta (2 Inst.)

Go. P. C Coke's Pleas of tbe Crown (3 Inst.)

Go. on Courts Coke's 4 Inst.

Comb Coflaberbacb's Reports.

C. P. Common Pleas.

Com Comyn's Reports.

Com. Dig Comyn's Digest.

Gont Contra.

Cooper Cooper's Reports.

Go Coke's Reports.

Cooke, B. L Cooke's Bankrupt Laws.

252 ABBEEYIATiONS.

Cot. Cotton.

Cow Cowpcr*8 Reports.

Cox Cox's Reports.

Cr. Rep. Ins Cpeswell's Reports, Insolvent Debtors'

Court

Cro. (1, 2, 3.) Croke (EKz. Jam. Cha.)

Cro. hometivus rrfert fo^Keil-
way's Reports, published
by Serj, Croke.

Cromp Crompton on Courts.

Cunn Cunningham's Reports.

Curt Ecc. R Curteis's Ecclesiastical Reports.

D Dictum, Digest. (Juris Civilis).

Dal Dalison's Reports.

Dans. & LI Danson and Lloyd's Commercial Re-
ports.

D'A.11 D'Anvers* Abridgment.

Dan Daniel's Reports.

Dav • • • Davy's Reports.

Dea. & C Deacon and Chitty's Bankruptcy Re-
ports.

Deac. B. C Deacon's Baukruptcy Reports.

Dick Dickina's Reports.

Dod Dodson's Reports in Admiralty.

D. P. C Dowling's Reports of Cases in King's

Bench Practice Court.

D. & R. • Dowling and Ryland's Magistrates'

Cases.

D. & R, Dowling and Ryland's King's Bench

Reports.
Dom. Proc » . • • Domini Proctor; Cases House of

Lords.

Doug Douglas's Reports.

Dow Dow's Reports in Parliament.

Dttgd. Orig Dugdale's Origines.

Domf. Dumford and East, or Term Reports.

Di. Dy Dyer's Reports.

Dub Dubitatur. .

E. T Easter Term.

ABERETIATIONS. 25S

East £ast% Reports.

East, P. L East's Pleas of the Crowo.

Edeo Eden's Reports,

Edw. A. R* Edwards's Admiralty Repoits.

£q. Ca Equity Cases Abridged.

Esp Kspioasse's Reports or Digest, Nisi

Prius.

Far Farresley (7 Mod. Rep.)

Ff.* PaodectsB (Juris Civilis.)

Falc. & Fits. Falconer and Fitzherbert's Election

^^ases.

Fin, r«..* Finch's Reports.

F. orFitz-t Fitzfaerbert.

F. N. B Fitz. Nat. Brevium.

Fiti^G Fiu-Gibbon's Repoits.

Fl ,rieta.

Fol Foley's Poor Laws.

Fonbl FonblaDque on Equity.

For. Forrest's Reports.

For. Pla Brown's Formulas.

Forrester Cases time of Talbot.

Forts. ...• Fortescue's Reports.

Fost. Font. Foster's Reports.

Fra. M. ...«.•... • Francis's Maxims.

Freem, Freeman's Reports.

Gilb Gilbert's Cases in Law and Equity.

Godb Godbolt's Reports.

Godol Godolphin.

Golds. . • . • Goldsborough's Reports.

Gro. de J. B Grotius de Jure Belli.

Hag« Ad Haggard's Admiralty Reports.

Hagg. Ecc. R Haggard's Ecclesiastical Reports.

* This reference, which frequently occun in Blackstone atid
other toriters, applied to the Pandects or Digests of the civil law,
and is a corruption of the Greek letter ir. Vide Calvini Lexicon
Jurid. voc, Digestorum.

t Fitzherbert's Abridgment is commonly referred to by the older
law writers by the title and number of the placita only, e, g, Coron.
30.

2j4 abbreviations.

Hard Hardtes's Reports.

Hawk. P. C. . ; HawkiDs's Pleas of the Crown.

H. H. P. C Hales's Hist. Plac. Cor.

H. P. C Ha1es*s Pleas of the Crown.

H. T Hilaiy Term.

Her Heme.

Het Hetley's Reports.

Hob Hobatt's Reports.

Holt Holt's Reports.

Hugh Hughes's Entries.

Hut Hotton's Reports.

Jac. R Jacob's Chancery Reports.

Jac. & W Jacob and Walker's Chancery Reports.

Jeok Jenkins's Reports.

1 , 2, Inst (1,2) Coke's Inst.

Inst. 1, 2, 3 Justinian's Inst. lib. I, tit. 2, sec. 3.

Jon. 1,2 Jones W. & T. Reports.

Keb Keble's Reports.

Keene, R Keene's Reports in Rolls' Court.

Kel Sir John Kelynge's Reports.

Kel. 1,2 Wm. Kelynge's Rep. 2 Parts.

Knapp & Om Knapp and Ombler's Reports, Con-
troverted Elections.

Kn. Pr. C. C Knapp's Privy Council Reports.

K.B King'sBench.

K. C. R. Rep. temp. King C.

Keilw. Kel « . . Keilwey's Reports.

Ken • Kennet.

Kit. Kitchin.

Lamb Lambard.

La Lane's Reports.

Lat. Latch's Reports.

Leach Leach's Crown Law.

Leon Leonard's Reports.

Lev Levinz's Reports.

Ley Ley's Reports.

Lex Merc. Red Lex Mercatoria by Beawes.

Lib. Ass. Liber Assisaruro, Year Book, Part 5.

Lib. Reg Register Book.

ABBREVIATIONS. 255

Lib. Feud Liber Feudonim, usually printed at

the end of the Corpus Juris Civilis.

Lib. Intr Old Book of Entries.

Lib. PI Liber Placitandi.

Lil. Abr. Lilly's Practical Register.

Lil Lilly's Reports or Entries.

LK & Welsb. Com. ...... Lloyd and Welsby's Commercial Re-
ports.

Lit 7 Littleton's Reports.

Lind Lindwood.

Lit. with S Littleton, S. for section.

Lofft. c Lofft's Reports.

Long Quinto Year-book, Part 10.

Lut Lutwyche's Reports.

M. & S. or M au. & Sel. . . Maule & Selwyn's Reports.

M. & W Meeson and Welsby's Exchequer Re«

ports.

M^Ll. R M^^Leland's Exchequer Reports.

M^^Ll. & Y. R M^Leland and Younge's Exchequer

Reports.

Madd Maddock's Reports.

Mad Madox's Exchequer and Formulare.

Mai. Malyne's Lex Mercatoria.

Man. & Ry Manning and Ryland's K. B, Reports.

Man. & Ry. Mag. C Manning and Ryland's Magistrates'

Cases.

Manw. Man wood's Forest Laws.

Mar March's Reports.

Marsh. Marshall's Reports.

Mer. or Metiv. ........ Merivale's Reports.

M. T Michaelmas Term.

Mo. Moore's Reports.

Mod. Ca Moderu Cases.

Mod. C. L. and Eq. 1,2.. Modern Cases in Law and Equity, (8

& 9 Mod. Rep.)

Mod. Int. 1,2 Modus Intrandi, 1, 2.

Mod. Rep Modern Reports.

Moll Molloy's De Jure Maritimo.

Moore Rep Moore's Common Pleas Reports.

25 6 ABBREVIATIONS.

Moore & P Moore & Payne's Common Pleas Re^

ports.

Moore & S Moore and Scott's Common Pleas Rep.

M. & M. N. P Moody and Malkin's Nisi Prius Reports.

Mood. & R. N. P Moody and Robinson's Nisi Prius Re-
ports.

Mood. C. C Moody's Crown Cases Reserved.

Mont. & M'A. R Montagn and M'Arthni^s Bankruptcy

Reports

Montg. Rep Montagu's Bankruptcy Reports.

Mont. & Bl Montagu and Bligh's Bankruptcy Re-
ports.

Mont. Sl Ayrt Montagu and Ayrton's Bankruptcy Rep.

Mont. & Cb Moniagu and Cbitty's Bankruptcy Re-
ports.

Myl. & K Mylne and Keen's Cbancery Reports.

Myl. & C Mylne and Craig's Cbancery Reports.

N. R. New Reports by Bosanquetand Puller.

N. Benl New Benloe.

N. & M Nevile and Manning's Q. B. Reports.

N. &L M. Mag. C Nevile and Manning's Magistrates*

Cases.

N. L Nelson's Lutwycbe

Nev. &P Nevile and Perry's Q. B. Reports.

Nev. & P. Nevile and Perry's Magistrates' Cases.

New T. R New Term Reports.

Nortb Northington's Reports.

N. Nov Novellae (Juris Civilis).

No. N Novae Narrationes.

O. Benl Old Benloe.

Off. Br Oflficina Brevium.

Ow Owen's Reports.

P. C Pleas of the Crown.

P. W Peere Williams's Reporte.

Pal Palmer's Reports.

Par Parker's Reports.

Pea Peake's Reports, N. P.

PI. Pla. P. p Placila.

Per. & Dav Perry and Davison's Q.B. Reports.

Per. & Dav. Mag. C Perry and Davison's Magistrates' Cases..

ABBREVIATIONS. 257

Per. & Kn. Elec. Cas Perry and Knapp's Controverted Elec-
tion Cases.

Philim. PhiIlimore*8 Reports.

PI. Com Plowden's Com. or Reports.

PoL Pollexfen*s Reporto.

Poph. • Popham*s Reports.

2 Popb. Cases at the end of Popham's Reports.

P. R. C. P Practical Register in Common Pleas.

Pr. Reg. Cb. Practical Register in Cbancery.

Pr. Ch Precedents in Cbancery.

Price or Pr Price's Reports.

Priv. Lond. Privilegia Loodiui.

Pr. St . Private Statute.

Quinti Quinto.(a) Year-book, 5 Hen. V.

Q. War. Quo Warranto.

R. & M. C. C Ryan and Moody's Crown Cases Re-
served.

R. & M. N. P Ryan and Moody's Nisi Prius Reports.

Rast • Rastell's Entries and Statutes.

Ld. Raym Lord Raymond's Reports.

Raym. T Sir Tbomas Raymond's Reports.

Raym Raymond.

Reg. Brev Register of Writs.

Reg. PI. Regula Placitandi.

Reg. Jud • . • Registrum Judicale.

Rep. ^1,2, &c.) 1,2, Coke's Reports, &c.

Rep. £q Gilbert's Reports in Equity.

Rep. Q. A Reports temp. Queen Anne.

Rep. temp, f incb Finch's Reports.

Rob Robinson's Entries.

Rob. A Robinson*s Reports Admiralty, or

Robertson's Reports of Appeals.

Rob. Sc. Ap Robertson*8 Scotch Appeal Cases.

R. S. L. Reading Statute Law.

Rose Rose's Reports.

Roll, and Roll. Abr Rolle, Reports and Abridgment.

(tt) Vide 6 Hen. 7, 19, 24.

258 ABBREVIATIONS.

Roll Roll of the Term.

Rush Rashworth's Colleedoas.

Rast. Ch. R. Russeirs Chaoceiy Reports.

Ross. & M Russell and Mylne's Chanceiy Reports.

Rom. & Ry. C. C Rnsaell and Ryan's Crown Cases Re-
served.

Ry. F Rymer's Fcedera.

S. $. • Section.

Salk Salkeld's Reports.

Sav Savile*s Reports.

Saond. Saunders's Reports.

Sch. & Lef. Schoales and Lefroy's Reports.

Scott, C. P Scott*s Common Pleas Reports.

Seld. Selden.

Sel. Ca. Select Cases.

Sem. . • Semble, seems.

Sess. Ca. . . . ; Sessions Cases.

Sh.Sc.Ap Shaw's Scotch Appeal Cases.

Sh. & M'Lean Shaw and McLean's Appeal Cases.

Show Shower's Reports.

Shower's P. C Shower's Parliament Cases.

Sid Siderfin's Reports.

Sim. R Simon's Reports in Vice-Chancellor's

Court.

Sim. & St Simon and Stuart's Reports in \nce-

Chancellor's Court.

Skin Skinner's Reports.

Smith Smith's Reports.

Sora Somer, Somers.

Spel Spelman.

S. C. C Select Chancery Cases*

Stark. N. P Starkie's Reports.

Stat. W Statute Westminster.

Staunf. St. P. C. and Pr. . . Staunfbrde Pleas and Prerogative.

Stra Strange's Reports.

Sty. Style's Reports.

St. Tri State Trials.

Swans Swanstone's Reports.

r. R Term Reports.

'f

ABBREVIATIONS. 259

T. R. E. or T. E. R (a).. Tempore Regis Edwardi,

Taml. R Tamlyn's Reports in Rolls Couit.

TauD Taunton's Reports.

Th. Br , Thesaurus Brevium

Toth Tothill's Reports.

Trem Tremaine, Pleas of Crown.

T. T ••• Trinity Term.

Turn. C. R. Turner's Chancery Reports.

Turn. & R. . . # Sometimes called Turner and RtisselL

Tyrw. Ex Tyrwhilt's Exchequer Reports.

Tyrw. &c G Tyrwhitt and Granger's Exch. Reports.

V. & B., or Ves. & Bea.. . Vesey and Beames's Reports.

Vaugh Vaughan's Reports.

Vent Ventris's Reports.

Vern Vernon's Reports.

Ves Vesey's sen. or jun. Reports.

Vet. Entr Old B. Entries.

Vet. N. Br Old Nat. Brev.

Vin. Abr Vinez's Abridgment.

Wil. & Sh Wilson and Shaw's Scotch Appes^l

v«ases«

Win. Winch's Reports.

Wight Wightwicke's Reports.

Wils Wilson's Reports.

Wms Williams's Reports, or Peere William^.

Y. B.(6) Year Books.

Y. & Jer Younge and Jervis's Exchequer Reports.

Yelv Yelverton's Reports.

Youn. & Col Younge and CoUyer's Equity Reports.

Younge Exch. Younge's Exchequer Equity Reports.

(a) This abbreviation is frequently used in Domesday-book« and
in the more ancient law writers. See Tyrrel's Hist. Eng. Introd. ^.
iii. 49. See also Cowel's Diet. verb. Reveland, where notice is taken
of a wrong inference of Lord Coke's, 1 Inst. ^6, from a quotation of
Domesday book, where this abbreviation is interpreted Terra Regis
Edwardi.

(6) The Year- Books are usually referred to by the Year of each
King's reign, the initial letter of his Name, and the page and number
of the ptacita ; to which is sometimes prefixed the initial letter of the
term, e. g. M. 4 H, 7, 18, 10.

( 260 )

THE

MODES OF QUOTING

TBK

CIVIL AND CANON LAWS,

See Dr, Hallifax'i Analymqfthe Raman Civil Law, and BuUtr^t

HoTit Juridiea 5u6s«ctiMe.

The Instjtutions are contained in Four Booki; each book is di**
▼ided into Titles, and each title into Paragraphs, of which the first,
described by the letters pr, or prineip, is not nombeied. The Di«
OBSTS or Pandects are io fifty Books; each Book is distributed into
Titles, each Title into Laws, and very frequently Lmts into Para-
graphs, of which the first is not nnrobered. The Code is comprised
in Twelve Books ; each of which is divided, like the Digests, into
Titles and Laws, and sometimes Laws into Paragraphs. The Novels
are distiaguisbed by their Number, Chapter, and Paragraph.

The old way of quoting was much more troublesome^ by only
mentioniog the Number, or initial Words, of the Pangraph or Law,
' without expressing the number either of book or Title. Thus $ ti ad*
versus 12 Inst, de Nuptiis, means the 12th Paragraph of the Title in
the Institations de Nuptiis^ which paragraph begins with the words
ti advertusf and which a modern civilian would cite thus, I. 1, 10,
12. So, L 30 D. de R. J. signifies the 30th Law of the Title in the
Digests de Regulis Juris; according to the modem way, thus, D.
50^ 17, 30. Again, /. 5, $. 3.Jf. de Jurejur. means the Sid Para-
graph of the 5th Law of the Title in the Digests de Jvrejurando ;
better thus, D. 12, 2, 5, 3. And here note, that the Digests am
sometimes referred to, as in the last instance, by a double y*; and at
other times by the Greek n or v.

INDEX.

A.

Page

Abbroachment 214

Abduction of Women .... 93

Abeyance *' 215

Abigevus 216

Absque Hoc ib.

Accedas ad Cariam ib.

Accessaries 67

Accord 216

Actions 187

of Assumpsit, Debt,

Case, Account^ Covenant,

&c 187 to 199

Actions Personal 9

Act of God 8

Addition 216

Ademption ib.

Administrators 164

Adnichiled 217

Ad quod Damnum ib.

Afierors ib.

Affray 110

Agent and Patient 218

Age prior 217

Agistment 218

Alias ib.

Allodial lb.

Amicus Curia; 219

Anatocism ib.

Answer in Chancery . . . 202

Apparitor ib.

Appeal to the Loids 213

Appearance 201, 206

Apprentices 60

Approvement 219

Page

Arbitrary Laws 2

Archbishops 57

Archdeacons ib.

Arresting Clergyman going

to Church 113

Assault and Battery 193

Assaulting Magistrates, &c. 92

Assaults 90

Assizes 183,209

Assumpsit 189, 225

Attachment 220

Attornment ib.

Autre Droit 221

Audita Querela ib.

Average 220

Averment 221

B.

Bankruptcies, fraudulent.. 108

Bankruptcy, Court of ... . 182

Bar 222

Bargains and Sales 147

Bastards 13

Battery 91

Higamy 113

Bill of Exceptions 212

Bisayeul 222

Bona Notabilia 1 63, 222

Bribing 108

Brothels, Punishment for

keeping 116

Buggery 95

Burglary 101

262

INDEX.

c.

Page

Canon Law 4

Capias 223

Case, Action on tbe 1 89

Caveat Emptor 14

Cestui que Trust 224

Use ib.

Vie ib.

Challenging to fight Ill

Chance Medley 88

Chancery, Court of 177

Proceedings in . 199

Chapter, Dean and 57

Cheating 104

Churchwardens 58

Civil Law 4

Clausum Fregit 224

Clergy 56

Cognovit 225

Coining 77

Colloquium 225

Colour ib.

Common Law 2

Pleas 180

Compounding Felonies. .. 108
Consanguinity, Table of . . 169

" >- Lineal .... 168

Lateral ... ib.

Conscience* Court of .... 187

Conspiracy 119

Constables 55

Conveyances 139, 153

Copyholds 136

Corodies 52

Coroner 55

Counterfeiting Coin 77

Great Seal . 76

County Court 184

Courts 177

Court Baron 186

of Bankruptcy .... 182

for Insolvent Debtors 183

Leet 185

Covin 226

Crown Law 3

Prerogatives of the 51

Curtesy of England 1 28

Curtilage 226

Curate 58

Custom . 2. 5

Custos Botulorum 55

D.

Dead Bodies, taking up .. 118

Deans and Chapters 57

Rural ib*

Debt, Action of 188

Declaration in Action at

Law 206

Dedimus 227

Deeds 139

Definitions 1

Demurrer 201, 227

General and Spe-
cial 207

Descent 164

by Custom and

Statute 165

Descent and Purchase. . . . ib.

Table of ib.

Devise 160

Disclaimer in Chancery. . . 202

Distresses 1 54

Distribution of Personalty 167

Distributions, Statute ot . . 171

Table of ... . ib^

Dower ^ 129

by Custom ...... ib.

Duces Tecum, Subpoena.. 228

Ejectments 196

Elegit 228

Embezzlement of Queen's

Stores 76

Embezzlement by Servants,

&c 103

Emblements 228

Engrossing ^ I If

Error. Writ of 212

Escheats . . • • 54

Escrow 229

INDEX.

fi63

Page

Esplees 229

Estate by Courtesy 128

Estates 121

Estovers 133,229

EstrepemeDt 230, 236

Equity Courts ^. 177

Equity of Redemption .... 157
Estate Tail after Possibi-
. Hty of Issue extinct .... 128
Examiners in Chancery . . 203

Exceptions, Bill of 212

Exchequer, Court of 181

Executions 212

Executors 1 63

Exhibits in Chancery .... 204
Equity, Proceedings in .. 199

Bill in 200

Extinguishment 231

Exchequer Chamber .... 213

F.

False Imprisonment 231

False Pretences, obtaining

Goods by 104

False Signals 105

Fee Simple Estate 122

Fee Tail ib.

Feigned Issue 231

Felonies by divers Statutes 66

et seq.

Felo de se 80

Feoffment Deed 139

Fieri Facias 232

Fines 142

First Fruits and Tenths . . 52

Flotsam, Jetsam, Ligan . . 232

Forcible Entry Ill

Forestalling 115

Forgery 106

Frankpledge 137

'Fraudulent Bankruptcy .. 108

Freebench 138

G.

Page
Game, Offences relating to, 116

Gaming-houses ib.

Garnishment 233

Gifte 150

Glebe 234

God's Acts 8

Grant, Deed of , 150

Grounds of Law ........ 6

Guardian and Ward 64

H.

Habere facias Possessionem 234

Heirs 26. 164

Heriots 138

Highways, Surveyors of . . 56
Housebreaking .. ..80, 101
Husband and Wife .... 16, 61

I.

Ignorance of Law no excuse

for Wrong 27

Illegitimate Children .... 64

Infants ib.

Innuendo 235, 241

Insolvent Debtors' Court. . 183
Interrogatories in Chancery 203

Intestacy 167

Issues 208

J.

Jeofails 234

Jointures 132

Journeys Accounts 235

Judgment 211

Juiy 209

Jttsticies, Writ of 185

Justices of the Peace .... 55
Justifiable Homicide .... 85

S64

INDEX.

K.

Page

King 60

Kini^'s Prerogative 51

King's Bench 179

L.

Land, meaning of 18

Larceny 98

Latitat 235

Law, defined I

— Dictionary 214

Laws, in general 1» 2, 3

Common, Civil, Canon 2, 4

Leases of Lands 152

and Release 140

Leet 185, 194

Legacy 160

Libel Ill

Liberty 6

liife. Estate for 132

Lunatics 25

Lunatico Inquirendo, Com-
mission • • * 26

M.

Malicious Mischief ...... 105

Master and Servant 59

Mandamus 180

Manslaughter 86

Matthew's liaw of Executors 176

Maxims of Law 8

Latin Maxims, va-
riety of ib.

Mayhem 90, 92

Misprisions 109

Mines of Silver and Gold . 53

Mortgages 156

Murder 79

by Duelling 82

Killing not Murder 85

MunicipalLaw 2

N.

Page

Natural Laws 1

Negative 236

Negative Pregnant ib.

New Trials 212

Nihil Dicit 237

NilDebet ib,

NisiPrius 183,209

Non Assumpsit ........ 237

Non est Culpabilis ib.

Non est Factum ib.

Non Compos Mentis «... 25

Nun Pros 238

Nonsuit ib.

Nudum Pactum ib.

Nuisances 115

O.

Oaths, unlawful 75

Offences and Punishments. 66

Outlawry 239

Ox erseers of the Poor .... 56
Oyer ib.

P.

Paraphernalia 239

Parish Clerks 59

Parent and Child 62

Peculiar 240

Peine Forte et Dure 67

Pernancy 240

l*erjury 107

Personal Actions 9

Property and Estate 124

Per Capita 173

— Stirpes ib.

Petition to Lord Chancellor 199

Pleas 207

Pluries 240

Posse Comitatus ib.

Possessio Fratris .... 241, 248

Postea 211,242

Primogeniture 31 , 164

Principles of Law 5

INDEX.

265

Page
Printing and publishiog se-
ditious Libels 75

Prisoners, Rescue of 109

Privies 242

Probate 163

Process by Writ 206

Prochein Amy 242

Property 121

Protestando 242

Publication in Chancery.. 203
Puis Darrein Continuance. 243
Punishments 66

Q.

Quantum Meruit 243

Queen 50

Prerogatives of ... . 51

Queen's Bench 179

Quo Warranto 180

Minus ib.

R.

Rapes 93

Ravishing Women 93

Receiving stolen Goods . . 103

Recoupe 244

Recoveries 142

Rectors 58

Redemption 156, 174

Regratmg 115

Rejoinder 202, 208

Rent 152

Replication 202, 208

Reputation, Name by ... . 13
Rescue of Prisoners ...... 109

Respondeas Ouster 244

Returning from Transporta-

tion 109

Riot 109

Robbery on the Highway. . 97

with Violence. • . . 95

— — Definition of ... . 96

S.

Page

Sacrilege 113

Scilicet 244

Scire facias 245

Se Defendendo 88

Seasons 59

Seditious Libels 75

Servants ib.

Sextons 59

Sheriffs 54

Slander, Action of 192

Smuggling 114

Sodomy 95

SovereigD, Prerogatives of . 50

Solvit ad Diem 246

Spring Guns, setting .... 117

Statute Law 2

of Jeofails 246

Statutes, how to beconstrued 1 3

Stealing Children 93

Sturgeon a Royal Fish .... 53

SuitinEquity 199

Summons, Writ of 205

Surveyors of Highways . . 56

Surrenders 158

Swearing and Cursing. ... 112

T.

Tenures of Lands 124

Terms of the Law 214

Testatum 246

Threatening Letters Ill

Transportation, returning

from 109

Traverse 246

Treasure Trove 52

Trespass 194

Treason 69

by Sututes ib.

■ how punished .... 75

petty Treason .... 69

Trials 209

at Bar 212

New 212

Trover 191

Tourn 184

N

266

Uocore Prist

INDEX.

U.

Pag«

, 248

V.

Variance 247

Venire Facias ib.

Venlict 210

Vicars 58

View 247

Voir Dire ib.

Voucher 143

W,

Page

Waste, Action of 195

Whales, Royal Fish 53

Will, Estate at 135

WUls 160

Witnesses 208

Words of Art 214

Wrecks 53

Waifc ib.

WritofError 212

Writ of Summons 205

Y.

Yean, Estate for 134

LONDON:

C, ROWORTB AND SONS, BELL TARD,
TBI! PLE BAR.

BOOKS

PUBLISHED BT

WILLIAM CROFTS, 19, CHANCERY LANE,

LONDON.

SHERIFF LAW,

In 8vo. price 18s. boards (1839),

A PRACTICAL TREATISE on SHERIFF LAW ; con-
taining the New Writs under the New Imprisonment for Debt
Bill : also Interpleader Act, Reform Act, Coroners' Acts, &c.
with Returns, Bills of Sale, Bonds of Indemnity, &c, &c. &c.

By GEORGE ATKINSON, Esq. of the Inner Temple,

Special Pleader.

NEW LAW DICTIONARY.
In Foolscap Svo. price 9s, boards (1839),

A NEW LAW DICTIONARY, containing Explanations
of such Technical Terms and Phrases as occur in the Works of
the various Law Writers of Great Britain ; to which is added
An Outline of an Action at Law, and of a Suit in Equity.
Designed expressly for the Use of Students.

By HENRY JAMES HOLTHOUSE, Esq.

EXECUTORS.

In One Volume, 12mo. Second Edition^ corrected to the
present time, price 9s. boards (1839),

A PRACTICAL GUIDE to EXECUTORS and AD-
MINISTRATORS ; designed to enable them to execute the
Duties of their Office with safety and convenience ; comprising
a Digest of the Law, Stamp Office and other Directions, Forms,
Tables of Duties, and Annuities, &c. &c. Intended also for
the Use of Attomies and Solicitors.

By RICHARD MATTHEWS, Esq. of the Middle Temple,

Barrister at Law. Author of A Digest of the CriminsJ

Law, Alphabetically arranged."

Boohs recently 'published by fV, Crofts.

PRINCIPLES OF THE LAWS OP ENGLAND.

In 8vo. price I6s. doth lettered (1839),

PRINCIPLES of the LAWS of ENGLAND, in the
various Departments, and also the Practice of the Superior
Courts, in the form of Question and Answer; for the Assist-
ance of Articled Clerks in preparing for Examination, and
incidentally for the Use of Practitioners.

By a SOLICITOR.

CHANCERY ORDERS.

In 1 vol. 12mo. Second Edition, price 5s. 6d. hds. (1838^9),
with a Supplement containing tne Orders issued 9th and lOth
May, 1839,

THE NEW ORDERS of the HIGH COURT of
CHANCERY, with Notes. Also the LATE STATUTES
regulating the Proceedings of the same Court, and the Service
of Process abroad ; and an Appendix containing the Decisions
upon Sur E. Sugden's Acts, with the subsequent Acts enlarging
the powers thereof.

By JOHN COOKE, Esq. Barrister at Law.

NEW GAME LAWS.

In 1 vol. 12mo. price 7s. 6d. boards (1839),

A COPIOUS and PRACTICAL TREATISE on the
GAME LAWS, comprising all the Statutes and Parts of
Statutes, and the Cases, in which every Section is commented
on and analyzed, and practical Information annexed thereto ;
including the Law and Practice of Appeals against Surcharges
in respect of Game Certificates, with all the Cases thereon
decided by the Judges to the present time ; with an Appendix
of all the necessary Notices, Forms of Information and Con-
viction, &c ; to which are prefixed two chapters on Animals
Ferae Naturae, things Bona Vacantia, and on Forests and the
Forest Laws.

By JOHN BELL, A.M. of Lincohi's Inn,
Barrister at Law.

SHORT-HAND.

In Foolscap 8vo. with Eight Plates, price 4s. cloth bds. (1832),
TAYLOR'S SYSTEM of SHORT HAND. A New
Edition, revised and improved, &c.

By JOHN H. COOKE, Short-hand Writer.

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