Pretium 20/091

Josiah Quincy’s Law Common-Place

Sept:^ber 24.^th 1763.

Salus Populi Suprema Lex est. 10. Rep. 139.2

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Our Student shall observe that the Knowledge of the Law is like a deep Well, out of which each Man draweth according to the Strength of his Understanding. He that reacheth deepest, He seeth the amiable and admirable Secrets of the Law. And as the Bucket in the Depth is easily drawn to the uppermost Part of the Water, (for Nullum Elementum in suo proprio Loco est grave)1 but take it from the Water, it cannot be drawn up but with great Difficulty. So albeit Beginning of this Study seem difficult, yet where the Professor of the Law can dive into the Depth it is delightfull, Easy, and without any heavy Burthen, so long as He keep Himself in his own proper Element. COKE Lit. 71.a.bot.2

Reading, Hearing, Conference, Meditation, and Recordation, are necessary to the Knowledge of the common Law, because it consisteth upon so many, and almost infinite Particulars. But an orderly Observation in Writing is most requisite of them all; for Reading without Hearing is dark and irksome, and Hearing without Reading is slippery and uncertain, neither of them truly yield seasonable Fruit without Conference, nor both of them with Conference without Meditation and Recordation, nor all of them together without due and orderly Observation; “Scribe Sapientiam tempore Vacuitatis tuae,” saith Solomon. And yet He that at length by these Means shall attain to be learn’d,

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when He shall leave off quite for his Gain, or his Ease, soon shall He (I warrant Him) lose a great Part of his Learning; Therefore as I allow not to the Student any discontinuance at all (for He shall Lose more in a Month than he shall recover in many:) So do I commend Perseverance to all, as to each of these Means an inseparable Incident. _____ Pref. to the Reports of L^d E Coke1

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The Proofs + Arguments of Littleton, (saith my L:^d Coke)1 may be generally divided into two Parts, viz. from the common Law + from Statutes, of both which, + of their several Branches I shall give the studious Reader some few Examples, + leave the rest to his diligent Observation.

From the common Law his Proofs + Arguments are drawn from twenty several fountains or Places.

• First, from the Maxims, Principles, Rules, Intendment + Reason of the common Law, which indeed is the Rule of the Law.
• Secondly, from the Books, Records, + other Authorities of Law cited by him, ab Authoritate + Pronunciatis.
• Thirdly, from original writs in the Register, a rescriptis valet Argumentum.
• Fourthly, from the form of good Pleading.
• Fifthly, from the right Entry of Judgments.
• Sixthly, a Praecedentibus approbatis + Usu.2
• Seventhly, a non Usu3
• Eighthly, ab artificialibus Argumentis, Consequentibus + Conclusionibus.4
• Ninthly, a communi Opinione Jurisprudentum.5
• Tenthly, ab inconvenienti.6
• Eleventhly, a divisione, vel ab Enumeratione Partium.7
• Twelfthly, a Maiore ad Minus, + vice versa, a simili, + a pari.8
• Thirteenthly, ab Impossibili.9
  • 14.

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14. A fine1

15. Ab utili vel inutili2

16. Ex absurdo, for that whereupon shall follow an Absurdity, quasi a surdo prolatum, because it is repugnant to Understanding + Reason.3

17. A Naturâ + Ordine Naturae.4

18. Ab ordine Religionis.5

19. A communi Pr[a]esumptione.6

20. A Lectionibus Jurisprudentium.7

From Statutes his (Lit’s) Arguments and Proofs are drawn.8

1:^st From the Rehearsal or Preamble of the Statute.

2.^dly By the Body of the Law diversly interpreted.

Sometimes by other Parts of the same Statute, which is benedicta Expositio, + ex Visceribus Causae.9

Vid, p. 89.10

Vid. p. 89.11 1 Inst. Page. 11.a.b.12

+ To Interpret a Law, we must inquire after the Will of the Maker: which may be collected either from the words, the Context, the Subject-Matter, the Effects and Consequence, or the Spirit + Reason of the Law, From the latter Method of Interpretation arises EQUITY, or the Correction of that wherein the Law (by Reason of its Universality) is deficient. Blackstone anal. B1. 62. p3.13

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L:^d Chief Justice Reeve to his Nephew. Directions for beginning the Study of the Law.1 Vid Law A^-file2

Read Woods Institutes3 in a cursory manner with an intent only to understand the several Divisions of the Law, + obtain the precise Ideas used in it. For such Terms as Wood does not explain, as he goes along Les Termes de La Loy sh^d.4 Be consulted + for more full + modern Explanations of the same, Jacob’s Dictionary:5 But the Authority of the latter sh^d not be too implicitly relied on. The only Reason why I mention Wood for the present Purpose is because, the Terms will be much better understood by observing with what Latitude or Restriction they are used in the Course of his Work, than by Consulting any Dictionary whatever. And in order to understand his Chapter of Conveyances, it will be necessary to call in the Aid of some old Practitioner who is your friend; if this Advantage can’t be acquir’d, you must be contented with such Light as you can strike out of the modern Books of Practice, as Bohun’s Institutio legalis,6 Jacob’s practicing Attorney’s Companion,7 (last Edit.^on) of all these I can give no other Character than Martial does of Books in general, sunt bona, sunt quodam8 +c; nor any other other Directions concerning the using them; than that you must by the help of Indexes take what is to your present Purpose. This done read Littletons Tenures, without Notes,9 consider it well + abridge such parts as the other Books inform you10 at this Day: Thus arm’d venture upon Coke’s Institute or Commentary upon Lit’s Tenures,11 which being well understood the whole is conquer’d + without which a sound Common Lawyer can never be made. To this

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This all the Faculties of the Soul must be applied with hearty Attention, it will not be found very difficult with the Preparation already prescrib’d: — After the first reading is thro’ (for it will require many more than one) either abridge it thro’ or Common place it, or compare it with some authoritative Abrigment; Sentence by Sentence, + by Addition and Corrections make it your own. For this purpose, I recommend Sergeant Hawkins’s Abrigment,1 which will afford much Light to L^d. Coke. This finish’d I w.^d recommend a Second Review of Wood, with an Intent to digest the Several Heads of the Law for Use + Memory. And now it will be proper to read the more usefull Statutes at large, in the order in which He places them, + to examine the several Books of Reports as they are cited for the Proof of his Opinion, which alone is not Authority tho’ he generally quotes fair: And remember if you read any Addition [edition] of Wood wherein Salk Rep^t.2 are not cited to consult them under their proper Titles which may easily be done, he having put them in a form of a common-Place.

During the second Stage of study, many Books may be brôt in for variety, which will be very usefull + not interrupt the main Scheme, as Doctor + Student,3 Noye’s Maxims,4 Curson’s Office of Executors,5 Hale’s History of the common Law,6 Hawkins’s Pleas of the Crown7 but principally Finch’s Law,8 + Roll’s Abrigment.9 +10. In which last you will find, in the Preface, the best Scheme for studying the Law of any yet extant. It will about, the Time this done, + not much sooner, be proper to give diligent Attendance on the Courts at West-minister + to begin orderly to read + common-

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placed in such a Manner, as by the Experience you will by this Time have of the Nature of the Study be able to advise yourself. ______ My whole Scheme without naming Books, is no more than this. — 1.^st Obtain precise ideas of the Terms + general meaning of the Law. 2.^dly Learn the general Reasons whereon the Law is founded. 3.^dly Find some authentic System, collect the great leading Points of the Laws, in their natural Order, as the first Heads + Divisions of your future Enquiry; 4.^thly Collect the several Particular Points + range them under their Generals, as they occur + as you find you can best digest them.

And whereas Law must be consider’d in a twofold Respect. 1.^st As a Rule of Action. 2.^dly As the Art of procuring Redress when this Rule is violated; the Study in each of them may be regulated by the foregoing Method. And the Books so recommended will so carry on your Joint Work, that with this Course so finish’d, the Student may pursue each Branch of either, to its uttermost Extent, or return to his Center of Knowledge without Confusion, which is the only way of rendering Things easy to the Memory.~ A Copy of a Copy. + Method of Studying the Common Law from Roll’s Abr.g Preface.1 Vid Law A^-file2

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the six Grounds of the Law of England.~

The Law of Engl:^d is grounded, first on the Law of Reason, 2.^dly, On the Law of GOD. 3.^dly, On divers general Customs of the Realm. Fourthly, On divers Principles that be call’d Maxims. 5:^thly On divers particular Customs. 6:^thly, On divers Statutes made in Parliaments by the King, + by common Counsel, of the Realm. Doct.^r+Stud.^t Ch. 4.^th p. 14.^~1

Of the COUNTRIES subject to the LAWS of ENGLAND.

The Laws of England are not rec.^d in their full extent in any other Territories, besides the Kingdom of England, + the Dominion of Wales; which have, in most Respects, an entire Community of Laws.

Scotland, notwithstanding the Union, retains it’s own municipal Laws; tho’ subject to Regulations by the British Parliament,

Berwick is subject to the Scots Laws, but bound by all Acts of Parliament.

Ireland is a distinct subordinate Kingdom, governd by the common Law of England; but not bound by modern Acts of the British Parliament, unless particularly nam’d.

The Isle of Man, the Norman Isles, (as Guernsey, etc.) + our Plantations abroad, are govern’d by their own Laws; but are bound by Acts of the British Parliament, if specially nam’d therein.

The Territory of England is divided, Ecclesiastically, into Provinces, Dioceses, Archdeaconries, rural Deanries, + Parishes.

The Civil Division is, first, into Counties, of which some are palatine; then sometimes, into Rapes, Lathes, or Frithings;2 next into Hundreds, or Wapentakes;3 and lastly, into Towns, Vills, or Tithings. Blackstone’s Anal: B1. Chap 3.4

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Attachment was prayed for a contempt, but ye C:^S (BR)1 denied it, tho’ some cases were cited in which it had been lately done; for they said it was a new practice to imprison men thus without being heard; [illegible] Sid. 452 22 Car. 2. BR. Tremenhere v. Tresilian. Cited 3 Vin: 131.2

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Accord. Vid. arbitram:^t [etc.]1 p. 18. vid. Accord. in the Index.

^a Accord (Concordia) is an agreem.^t betwixt 2 at least, to give + accept something in Recompense for a Trespass, + done by One to Another. If this agreem.^t is executed, it is a good Bar in Law, in some Cases of the personal Injuries, to any action for the same Trespass or Injury. Accord with Satisfaction is a good Plea in personal actions, where Damages only are to be recover’d; not in Real Actions. — Therefore Right or Tithe to Freehold Land cannot be barred, by Acceptance of any collateral Satisfaction or Recompence. It must be by ^xRelease confirmation etc But because the Action of Ejectione Firmae + Trespass are so woven together, that they cannot be parted, or an Accord is a good Plea in Trespass, it must be so in Ejectment.

^a Terms of the Law2 verb. accord

^b 4 Rep. 1. 6 Rep. 44 9 Rep. 78. 79. 8o3

x vid p 81.4

^c 9 Rep.78 1 Inst 212. b.5

^c If one is bound in an Obligation, to deliver Goods, or to do any collateral Thing, The Obligee cannot, by Accord betwixt them, give Money in Satisfaction thereof; for the Contract being made by writing, to do such a Collateral Act, it cannot be alter’d without writing. But when One is bound to pay Money, He may give Money [or any other valuable thing]6 in Satisfaction [because] All Things are estimated + valued by Money, + not Money by Things. If a Contract without Deed is to deliver Goods, or to do any other

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collateral Thing, there Money may be paid by Accord, in Satisfaction of such a Contract. For as a Contract upon Consideration may commence by words, so by an Agreem.^t by words for any valuable Consideration, the Contract may be dissolved.

(vid of the Condition of an Obli^ttgon, Wood. B2. C31 Of Obligations.)

Note, that the best + safest way to plead an Accord, is to plead it by way of a Satisfaction, + not by way of Accord only. For if it be pleaded by way of Accord, a precise Execution thereof in every Part must be pleaded etc. You need not say any more but that you paid the Plt a Bottle of Wine, etc. in full Satisfaction of the Accord, w^ch the Plt rec^d. In all cases where Arbitram^t. is a good Plea, acc^d. with Satisfaction is a good Plea. Wood B4 ch 3 p 5533

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If an apprentice in London marries w^thout his master’s consent, the master cannot turn him away for that reason, but he must sue his covenant. 2 Vern. 293.1 The end of ye case of Stephenson v. Holditch cited 3 Vin. 20.2

Covenant lies not ag^t: an apprentice being an infant. 7 Mod 15. Lilly’s case. cited 3 Vin: 23.3

A waterman’s widow took an Apprentice, who went to sea (being pressed into y^e Queen’s service) + earned 2 tickets, w^ch came to y^e dft’s hands. She bro’t trover for y^e tickets, + had judgment; for what ever an Apprentice gains belongs to his master, She may action for it. 1 Salk 68. Barber v. Dennis.4 And if he be an appren only de facto it is sufficient. 6 Mod. 69. cited 3 Vin: 23. notes q: v.5

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¹ An apprentice cannot be sent out of England, unless the Nature of his Service does require it.

² As an apprentice cannot be made without Writing, so He cannot be discharg’d by his Master without Writing under his Hand, + with the Allowance of One Justice.

If any Master dies, the apprentice goes to the Exc^ttor or adm^ttnor, to be maintained, if their [sic] be assets. But the Exc^ttor he may bind Him over to Another Master for the remaining Part of his Time. Wood. B.1.c6. p 52.4

If a servant retain’d for a year falls sick, etc. the Master cannot put away his Servant, or abate his Wages.

If a servant shall refuse to do his Service, this is a Departure in Law, altho’ he continue with his Master.

It is a reasonable Cause of Departure from Service if the Servant is not allowed sufficient Meat, Drink, etc. or if the Master’s Wife beats Him.

If a Woman that is a servant doth Marry, yet She must serve out her Time, + her Husband cannot take Her out of her Master’s Service. And if a Woman, being with Child of a Bastard, procures Herself to be retain’d with a Master, who knoweth nothing therof, or if She begotten with Child during her Service, this is a reasonable Cause why the Justices sh^d. dicharge her from her Service, for She hath made herself incapable to serve any longer. If He retains a Servant for ten pounds per annum, + he departs within the year; ³ He can have no Wages: And if Wages are to be paid Half-yearly, + the Master dies after the first Half

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Half-Year, the Servant shall have Wages only for the first half year. Wood. B 1. Ch. 6. p54 + onward.1

Vid. Viners Tit Apportionment. Worth v. Diner. p 8.2

¹ If a Servant damages any goods by his negligence, an Action of the Case lieth against Him.

² If a Servant is robbed on the highway, of the Master’s money, the Master being absent, the Master or the Servant may bring the action Against the Hundred; + the Master may be a Witness to prove the Delivery of the Money to the Serv:^t before the Robbery, tho’ he brings the Action in his own name.

³ If any Servant is cozen’d of My Money, I may have an action ag^t. the Person that cozen’d Him.

The Master may have an+ Action ag^t. one that entices away his Servant; or ⁴ hires Him, knowing Him to be his Servant.

Trover lies ag^t. the Master for goods dd^tt [delivered to] the appren tice Strange 505.12 And the Master is liable for the Fraud of the Apprentice Ibid 653.13

How the Servant is to justify an Assault in Defense of his Master. 2 Strange 953.14

In an Action ag^t. the Master for his Servant’s Default, the Servant having a Release from the Master, admitted a witness for Him. Ibid. 1083.15 + Vid. Vol. 2. p 268. Under Case in the Index.16

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the same Tit in the last Index.

Bailiff to 2. 1 pties [parties?]: Action lies for the Survivor, + not for Him + Ex^ttcor of the Dec’^d jointly. Comb. 474.1 If goods be bail’d to a Feme, or if Goods come to her as Exc^ttix to a Bailiff, this bare Possession is not given to the Husband, but the Action of Detinue must be brôt ag^t: the Husband + Wife. Co: Lit: 351. b.2

In like manner^x Trover may be brôt vs. H+W but Conversion must be laid only in the Husband. 1 Bac. abr: 307.4

Action of Account is maintainable ag^t: a servant, but not ag^t an Apprentice. 3 Vin: 23. bot, 22 top.5 Sim: points.6

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vid Accord. p 12. and Accord in the Index at y^e End1

The Matter of Controversy, which may be committed

To arbitram^t., is either of Fact, or of a Right in Things + Actions Personal + Uncertain: but so as no^t Freehold, tho’ the submission is by Deed, nor Lease for Years of Land (Qu.) [Quare] may be ajudged from One to Another. Thus Debts due on Record or upon bill, or on certain Contracts, Matters concerning Matrimony, or Criminal Offenses, cannot be made matters of Arbitram^t. But if men enter into Bond with Condition (as is usual) to stand to the Abritrament or Award, the Bond may be forfeited for Non-performance of the Condition. Wood. B4. ch 3. p. 5535 [sic 523?] Quare, if the Award ajudged a Freehold from One to Another vid the case Rogers vs. Kemick Red. Rep. 526.

²Submission may be either General or, special: it may be by Word or Writing, Absolute or Conditional. If the Parties give a Bond to Each other, it must be Word for Word alike on both sides, only changing the Names etc.

Wood B4. ch 3.p 553.12

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Note, That ^a Submission to an Award by Bond may be countermanded by Deed. Such Authorities in their own Nature are Revocable as a Letter of Attorney etc tho’ made irrevocable by Express Words. But then the Bond is forfeited. If it had been without Obligation, etc. one might revoke and forfeit Nothing.

^b Where an Accord with Satisfaction may be pleaded, an Award may be pleaded+ vice versa, vid Accord. p. 18.3

Where one of the Parties to an Award made on a Submission in Court pursuant to the act of 9+10 W. 3. ch 15.,4 dies before the money

p^d. [paid] no Sci. fac. [scire facias], can issue ag^t. his Heir or Exc^ttor, to enforce

Paym^t: for the award tho’ established by Court, is not in the Nature of a Judgm^t or Degree to be prosecuted but in the Nature of a Contempt, which dies with the Person. By all the Judges St. [sitting?] in Chan. 22.3.5

If there be an award to pay a Sum of Money, a Tender + Refusal has been formerly held no Performance, as in the Case of Hunt + Craven.6 But it has be ajudged otherwise since. 2 L^d. Raym.

964.965.7 Wood B. 4. ch. 3 p. 555.8

How differently a Submission + a Release of All Actions operate and the Reason of this operation. Haw. Abr. 3819 vid p. 8410.

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vid Baron + Feme in the Index at the End of this Book. vid Vol. 4. p. 6. Tit Curtesy.2

Husband cannot grant Lands etc to his Wife, during the Coverture, nor any Estate or Interest to her, nor enter into Covenant with her. But he may covenant with others for her Use etc. Wood. B 1. ch 6. p 61.3

A Feme cannot devise to her Husband. Baron + Feme cannot be Witnesses for or ag^t Each other, except they may be Witn^s ag^t Each other in Case of high Treason for the sake of Govern^t:, or upon the statute of 3 H7. chap. 2.4 Where the Wife may be Evid. ag^t. her Husband for forcibly taking her away + marrying her. The Wife is so much under the Power of her H, that She is disabled to contract with Any Person without his Consent, precedent or subsequent, express or presum’d. If the W plays + loses5 her H’s money, the H may recover it. She cannot bind her H in Strictness for Necessaries by any contract, unless a precedent or Subsequent assent is proved or presumed: But usually her Contracts are allowed, if She buys goods for herself, Children, or family, as Bread etc or for her own necessary Apparel. The H is bound to maintain his W in Necessaries, + therefore if Goods come to H’s Use it is Evid. to prove his Assent, but not binding Evid; for it may be contradicted by Other Proof as that He gave his Wife ready money; Admitting

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Admitting then that the H sh.^d be charged in strictness for necessaries; tho’ he knows nothing of them; [yet if] he forbids particular Persons to trust his W, he shall not [be] charged after such Prohibition. A Prohibition in general not to trust a W, as by putting her in the Gazzettte etc. cannot amount to a Legal Notice. A Man shall not be charged by the Contract of his W, (except as above for Necessaries) if he hath no Notice of it, tho’ the Things do come to his Use. Neither, shall a H be bound by his W’s receipt of his money.

If the H threaten his W to beat or to kill her, She may make him find security for the Peace.

It is generally true, that the Agreements between H + W¹ before Marriage are extinguished by the Marriage. Wherefore it is usual for the H to covenant with Others for the Use of his Wife, as for her jointure, etc.1 When there is no Agreem^ts: or Settlem^ts before Marriage, ^x the H gaineth by the

Mar.^ge a Freehold in Right of his W, if he taketh a Woman to W that is seised in Fee^a. And He may make a Lease of 21 y^rs or three Lives of her Estate, + it shall be good + effectual in Law ag.^t the W, if it be made according to the Statute of the 32 H8 chap 28 (vid of Leases, Wood B 2 chap 3 p 281.)6

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The H also gaineth a Chattel real, as a Term for Years etc. to dispose of, if He pleases, by Grant or Lease in her Life time, or by surviving her. Otherwise it remains with the W ^x; for the H cannot charge it f with a Rent, etc + can make no Disposition thereof by his last will, if He doth not survive his W. If he grants away only Part of the Term, the W shall have the Reversion; but if he grants the whole term of his W upon Cond^tton, etc + the Cond^tton is broken, the W is barred; for the whole Interest is passed away. Where He may dispose of the W’s Term He may forfeit it upon Exc^tton for the H’s Debt; the stiff may sell the Term during the Life of the W. Where the Wife is out of Possession during the Coverture, or hath only a possibility, or is possessed of a Chattel Real as Ex^ttrix, the H cannot have it, tho’ he survives her. Lastly, the H by the M [marriage] hath an absolute Gift of all Chattels personal in Possession of the W in her own Right; wether the H survives the W or no. But if these chattels personal are Choses in Action (ie. Things to be demanded by Action) as Debts by Oblig^tton, Contract, +c the Husband shall not have them, unless He + his W recover them. A Chose in Action tho’ not assignable at Law, yet is so in Equity; +the H may assign it alone, as he may any other part of his W’s Estate personal: so he may a contingent Interest which

f So as to bind the W, if she survive. Co Lit. 351.a.3

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[continues from page 22 [27]]

He has in Right of her, or a Possibility, wch tho’ not strictly good by way of Assignm^t; yet will operate as an Agreem^t, when there is a valuable Consideration. All the foregoing from Wood B 1 C6 p61-63.1 DEBTS of the WIFE dum sola.2 If the W before M [marriage] was in Debt, the H + W must be sued for this Debt, living the W. But if the W dies, the H shall not be charged for the debt of his W after her Death, if the Creditors of the W do not get Judgm^t during the Coverture. The H, as such is not chargeable in a C^t of Equity, any more than at Law, with the Debts of the W after her Decease; not even tho’ he had a large Fortune with Her; as on the Other Hand he is, during the Coverture liable to all her Debts, altho’ he did not get a shilling with her. Ibid. 63-64.3

COVENANTS USE to the + with the Wife.

A Husband may covenant with Others to stand seis’d to the Use of his Wife, or He may make a Feofment to her Use; but if He make a Covenant with his wife to stand seis’d to her Use, it is VOID.

Hawk Abr. 1684

Chattels reals, as Leases for Years, Wardships, + the like, are not given to the husband absolutely, (as all Chattels personal are) by the Intermarriage, but conditionally if the Husband happen to survive Her, + He hath Power to alien them at Pleasure but in the mean time, the Husband is possess’d of the Chattels reals in Right of his Wife. Co. Lit. 299.b. 300. a.5

If a Feme sole be possess’d of a Chattel real, + be thereof

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thereof dispossess’d, ⁺+ then taketh H, + the W dieth, if y^e H surviveth, this Right is not given to the H by the Intermar:^ge, but Exc^ttors or Admin^ttors of the Wife shall have it, so it is if the W had but a Possibility. Co Lit. 351.a3 In the same manner it is if W be possess’d of the Chat^s: reals in auter Droit,4 as exi^ttx or adminix, etc + she marrieth, the Law maketh no Gift of them to the H, altho’ He surviveth her. In the same manner if a Woman grant a Term to Her own Use, taketh H + dieth, the H surviving shall not have this Trust but the Exc^ttors or Admin^ttors of the W, for it consists in Privity. Chattels reals consisting merely in Action the H shall not have by the Marriage, unless he recovereth them in the Life of the W, as a Writ of Right of Ward, a valore maritagii,5 a Forfeiture of marriage, + the like, whereunto the W was intituled before Marriage. But Chattels reals being of a mixt Nature, viz^t, partly in Possession, + partly in Action, which happen during the Coverture, the H shall have by y^e Mar^ge if he survive y^e W, albeit he reduceth them not into Possession in her Lifetime: but if W survive Him, She shall have them: as if H be seis’d of a Rent Servi. Char:or Seck,6 in right of his W the Rent become due during the Coverture, the W dieth, the H shall have y^e Arrearages, but if W surviveth the H, She shall have them, + not y^e Exc^ttors of the H. Et sic de similibus.7 But if the arrearages had become due before the Marriage, there they were merely an Action before the Marriage and

And therefore the H shall not have them by the Comⁿ: Law, altho’ He survive Her. And so it is of Releases, mutat: mutand: But now by Stat: 32.H.8. cap. 37 if H survive W He shall have y^e arrearages, as well incur’d before the Mar:^e as after. Co Lit: 351.b8

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vid Lands, Tenements + Hereditaments. p. 472

Estates by (course of) the Common Law are divided into, 1^st: Estates of Inheritances. 2 Estates less than Inheritance. Estates of Inheritance are, 1^st Fee-simple. 2. Fee-tail. Hale’s Analy. Sect 29.3 Sect 31. Estates at Common Law less than Inheritance are, 1^st: Estates of Freehold. 2^dly: Estates less than Freehold. Estates of Freehold are divided into, 1^st: Such as arise by Act of Law. 2 Such as arise by Act of the Party. Freehold Estates arising by Act of Law are, 1^st: Tenant by the ^x Curtesy of England. 2. Tenant in Dower. ^{x x} vid Vol. 4. p 6+7.4 Freehold Estates arising by Act of Party are, 1:^st Tennant for his own Life^t: which is either, 1:^st Simply so; Or 2. With a priviledge annex’d; as Tenant after Possibility.

2. Tenant pur auter Vie ^t. ^t vid Vol. 4. p.9.5

2. Estates less than Freehold are of two Kinds: 1:^st Certain. 2. Incertain. Estates less than Freehold certain are, Leases for Years.^{ø ø}vid Vol.4. p.10.6

2. Incertain Estates less than Freehold are, Estates at Will.

The Incidents to all these particular Estates, except Tenancy at Will, are these, viz. They are transferable from One to Another, unless particularly restrain’d, By Condition; or By Limitation. They are forfeitable. Ibid.s317

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All Estates may be reduced to Inheritance, Freehold or Chattels. Wood B. 11. ch 1 p 119.1

An Interest, in legal Understanding, extendeth to Estates, Rights, + Titles that a man hath of, in, to, or out of Lands; so that by Grant of his whole Interest is such Lands, Reversions as well as Possessions in fee simple shall pass. Ibid. 1202.

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A feme covert has no power to make a contract without her H.1 + therefore such Contract is absolutely void. 1 Com. Dig 5672 FemeCov: by herself alone cannot plead. Cro: Jac. 239-288-4453 F.C. [feme covert]4 was not liable to an Exec^ttion as Com.Law.3Bur. 1785^-5 A woman whose husband had left her about 12 years before had carried on trade in her own name as widow + given receipts in her own name, being sued for debt contracted in the course of her trade gave coverture in evidence + that her H. had been lately in Ireland+ Holt directed the Jury to find for Defn + so they did. 1. Bac. 308.6 On N. A. Deft proved she had a H. alive in France Jury found for plf. On motion for a new trial as a verdict against evidence it was denied for a divorce shall be intended. 1. Salk. 117.7

If B. + Feme separate by consent + she has a separate allowance tis unreasonable she should have it in her power to charge him + it is not to be presumed but tradesmen trust her on her own credit + not on the credit of her H. + a personal notice is not necessary it is sufficient that it be public + generally known. H. Holt ruled a H. was liable to his wifes contracts, because they cohabited. 1. Salk. 113^-8 Everyman is obliged to maintain his wife + an action may be maintained against him for necessities provided suitable to her rank in life

4.Bur.217810

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Neither natural or legal disabiities do hinder any one from being an arbitrator. If they are incompetent judges, y^e fault is in those who chuse them. _________ If they observe their commission + keep within their jurisdiction, their sentences are definitive, from which there lies no appeal RSL. 1 Vol. 103. cites Wood 921 cited 3 Vin. 41.1

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vid. Estoppel in the Index to this Book. p.178.1

In Deeds indented all Parties are ^a Estopped to say against any Thing contained in it. It stops a Lessee, to plead that the Lessor had nothing in the Land. But where an Interest passes from the Party, there can be no Estoppel against him.

In Deeds-poll a Lessee is ^b not estopped to plead, That the Lessor had nothing at the Time of the lease made. For the Lessor only puts His Seal to it, + delivers it only as His Act.

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vid. P: 751

If there be an express Promise of marriage by the man + it appears the woman embrac’d it + by her actions at that time behav’d herself so as if she agreed to the matters tho there be no actual Promise, yet that shall be sufficient Evidence of a Promise on her Side. 6 Mod: 72.2

Indeb: Assum:3 For money rec^d to the Plf’s Use, + produc’d his Debtor who paid it as a Witness. Rejected by Holt, because if He be nonsuited the matter is at large again + He may sue the Debtor, + therefore the debtor swears to the Discharge of Himself + by Consequence is no Witness. Ibid. 1514

Of the Party’s Confession. vid 2 Haw: pl. 429 etc5

It is an obvious principle, that a witness who perjures himself in one circumstance, is credible in none: 2 Hume’s Hist.y of y B [Britain] 288 Edit 1757.6

Page [35]

vid. p. 75.

The constant Rule of Law has been, to reject all parole Proof brôt to supply the words of a will, or to explain the Intent of the Testator, + that nothing dehors1 should be averred, is the express Resolution in Lord Cheyney’s case^x: And this Rule has since been thôt necessary to be adhered to, not only

on Account of the Statute of Frauds + Perjuries,3 which was made to prevent Perjury, Contrariety of Evidence, + Uncertainty; but because little regard ought to be had to the Expressions of the Testator, either before or after making his Will; because possibly those expressions might be used by Him, on Purpose to controul or disguise what He was doing, or to keep his family quiet; or for other secret motives + Inducements, which cannot after his Death be found out; but this Rule has rec^d a Distinction which has greatly prevail’d of late, viz^t between Evidence offer’d to a Court, + Evidence offer’d to a Jury; for in this last Case, no parol Evidence is to be admitted, lest the Jury might be inveighed by it, but in the first Case it can do no Hurt, being to inform the Conscience of the Court; who cannot be biassed or prejudiced by it. Cases in Equity abr. 2304

A witness must give the very words even before a Judge, + not say, they were to this Effect etc. Ibid. 231 s.3.5 It

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vid. p. 75.1

It is reported to have been said by Holt, that the Copy of any Original is Evidence, wheresoever the Original is Evidence, if prov’d a true Copy; but the Copy of a Probate of a Will in the Ecclesiastl: Court is no Evidence because that is but a Copy of a Copy. Comb. 337.2

1. 1:^st You must give the best the Nature of the Thing is capable of. Theory of Evid. 110.6 Law of Evid. 4. 8. 15. 16.7
2. 2. No Person interested can be a witness. T.E. 94 T. E. 1228
3. 3. Hearsay is no Evidence T.E. 111. T.E. 152. 153.9
4. 4. Where general character is put in Issue, Evidence of particular Facts may be given; but not where it comes in collaterally. T.E. 113.10
5. 5. Ambiguitas Verborum latens Verificatione suppletur nam quod ex Facto oritur ambiguum Verificatione Facti tollitur. T.E. 115.11
6. 6. In every issue the Affirmative is to be proved. T.E. 116.
7. 7. No Evidence need be given of what is agreed by the Pleadings. T.E. 117.12
8. 8. When a Man cannot have the Advantage of the special Matter by Pleading, He may give it in Evidence on the general Issue. T.E. 11813
9. 9. If the Substance of the Issue if prov’d, it is sufficient. T.E. 11814
10. 10. Where a Matter comes to be determin’d in a collateral way, the Determination of any Court having competent Jurisdiction, is conclusive Evidence of such Matter: and

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And in case it is final in the Court of which it is a Determination, such Determination will be conclusive in any other Court having concurrent Jurisdiction. T.E. 37.1 11. No Verdict shall be given in Evidence but between such who are Parties or Privy to it. T.E. 18. T.E. 34.2 12. When any Person claims by a Deed in the Pleadings, he ought to make a Profer of it to the Court: And where he would prove any fact in Issue by a Deed, the Deed itself must be shewn, + prov’d by one witness at the least. Theory of Evid. 46.-53. T.E. 79.-95.-101.102.3 A Person that may be admitted as a Witness, at a Trial, may give words in Evidence to the Jury, which were spoken to him by Another Person, who by the Rules of the Court might not be admitted as a Witness at the Trial. Mich. 22 Car. BR.4 For it is but a matter of Evidence, + is left to the Jury how far they will give Credit to them; + it is lawfull for One that is admitted as a witness to give anything in Evidence which may concern the Matter in Question.

1. Lilly abr. 549. Evidence.5 Tho’ Hearsay is not allow’d as direct Evidence, yet it may be made use of to this Purpose; viz^t to prove that a Witness is constant: to Himself, whereby his Testimony is corroborated. By L^d Ch: Baron. 1 Mod. 282 Lutterel vs Reyvel + al.6

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vid. Tit. Pleading etc. in the index at the End. vid. Admin^ttor etc. in the index at the End.1

Debt ag^t one as Exec^ttor, + ag^t the other as Exec^ttor of an Exec^ttor; it was objected, That the Action ought to be brôt ag^t the Survivor alone; but adjuged, That it lies ag^t both; for the Exec^ttor who was dead, might have the Possession of the Goods whilst living, + if the Action should be brôt ag:^t the Survivor alone, he might plead Plene administravit,3 w^ch w^d be a good Plea.

But about 24 years afterwards, the contrary Judgm^t: was given in a like Case; + the Reason was, because the Plf might have brôt his Action whilst the other was living + that it was either his Folly or Negligence to omit it, + therefore the action wd. [would] not lie ag:^t the Exec^ttor of the dead Exec^ttor. quod nota.5

The like Judgm^t was given many years afterwards: SC.6 The Testator made two Exec^ttors, who prov’d the Will, + one of them died, + then an action was brôt ag^t the Survivor + the Exec^ttor of the other, + for that Cause it was abated, + adjudg’d. That it ought to be brôt ag:^t the Survivor Alone.

Nelson’s Lex Testa: p.164. 165.8

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Barratry in a Policy is the same as fraud. 1 Strange 581.1

Where Salvage fall short of the freight, it is a total Loss. 2 Strange 1065.2

Where the Master deviates for the Benefit of his Owners, it is not Barratry, tho’ it may be a Breach of Contract. Ibid. 1173.3

Concealing an Information of Danger avoids a Policy, tho’ the Loss does not happen by such Danger. Ibid. 11834

A ship never heard of is presumed to be founder’d at Sea. 2 Strange 1199.5

Goods lost after the Owner had taken them from the ship, Insurer is discharg’d. Ibid. 1236.6

Insurer is liable where a ship goes back to perform Quarentine. Ibid. 1243.7

Policy on any ship the Plf sh^d: sail in from V [Virginia] to L [London], not transfer’d to another ship that the Plf goes on Board of in the voyage. Ibid 1248.8

An intention [to] deviate does not discharge the Underwriters. Ibid. 1249.9

On a Policy, Interest or no Interest, a Recapture after being in an Enemy’s Port, will not avail the Insurer. Ibid. 1250.10 Insurance

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Insurance of ships + freight comprises only the freight of Goods actually shipped. 2 Strange 12511

The mariners force the master to return; that is no Deviation nor Barratry. Ibid. 1264.2 A ship warranted to depart with Convoy, She may go to the Place of general Rendezvous,3 at the Hazard of the Underwriters. Ibid 1265.4

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See same Title p.50.1

The Jury may take the Law upon them if they will. 1 Stran. 105 cites Litt. § 368.2

The Question, in the Case of ____________3 being merely a Point of Law, the Ch: Justice told the Jury, they must find for the Dft which they were very unwilling to do, + therefore to prevent their going contrary to his Opinion, I suffer’d a Nonsuit 2 Stran. 1221.4

Where the Evidence of a Witness is false in an immaterial Part, the Jury need not give him Credit in any other Part. 1 Cro. 310.5 But if They find upon Evidence that does not prove the Allegata, there it is easy to subject them to an Attaint, because it is manifest that what is found is on Evidence not corresponding to their Issue; + hence it is necessary that y^e matters in Issue should be set forth with all convenient Certainty, that it may be seen how far + when the Jury are mistaken; as in Trespass etc.; + so on special Contracts they must be set forth so precisely, that if Evidence be given of another Contract, + not that in the Allegations, + yet the Jury find for the Plf, They may be subject to an Attaint. 3 Bac: Abr: 278.6

It is Province of the Justices to determine what the meaning of any word or sentence in an Act of Parliam^t. is. 5 Bac: Abr: 2187 The Judges shall judge what is a reasonable Time Ibid. Hume calls, the Institution of Juries, admirable in itself, + the best calculated for the Preservation of Liberty + y^e administration of Justice, that ever was devised by the Wit of Man. History of Eng^d 65. Edit 1762.8

Nothing contributes more, than the institution of tryals by Jury, to the support of that equity + liberty, for which the English laws are justly celebrated. Hume Histry 4v.7049

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See Same Title. p. 50.

A Jury shall try whether there is a particular Custom or no, + not the Judges; except the Custom in Debate is of Record in the same Courts Wood. p.6.1

X Of ancient Time if a Deed appear’d to be rased or interlined in Places material, the Judges adjudged upon their view; the Deed to be void: But of latter Time, the Judges have left that to the Jurors to try wether the rasing or interlining were before the Delivery. Co: Lit: 225. b.2 vid. 3 vol. p. 85. 121.3

Theory of Evid. 72. L.E. 106. 107.6

Were I therefore a Juror; (says the author of the L^r[?^], on Libels, etc: p. 11.7) I should take nothing implicitly or upon Trust, in this Respect. X from any man, but should endeavour to form my own Judgment of the matter as an impartial Juror, + not as a Statesman: plain Truth + fact, + common sense, + not political Convenience, far-fetch’d Inference, or ingenious Innuendo, being the proper Object + Interest of my Oath by the Law of the Land.

M^r Hawles, (says the same author. p. 14) in his excellant Treatise upon the Duty of petty Juries, call’d The Englisman’s Right,9 says, ‘When the “Matter

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“Matter in Issue, is of such a Nature, as no Action, Indictment or Information will lie for it singly, but it is work’d up by special Aggravation into matter of Damage or Crime, as that it was done to scandalize the Government, raise Sedition, affront Authority, or the like, or with such or such an evil Intent: if these Aggravations, or some overt Act to manifest such ill Design be not made out in Evidence, then ought the Jury to find the Party Not Guilty. And if a Jury shall refuse to find that such an Act was done falsely, scandalously, maliciously, with an intent to raise Sedition, defame the Gov^t, or the like, their mouths are not to be stopped, or their Consciences satisfied, with the Court’s telling them you have Nothing to do with that, it’s only matter of Form on matter of Law, you are only to examine the fact, whether He spoke such words, writ or sold such a Book or the like: for if they should ignorantly take this for an answer, + bring in the Prisoner Guilty, tho’ they mean of the naked fact only, yet the Clerk recording it demands a further Confirmation thus, Then you say D. is guilty of the Trespass or misdemeanor in the manner+ form as He stands indicted, + so you say All? And the verdict is drawn up, the Jurors do say, upon their Oaths, that D. maliciously, in Contempt of the King + Govt, with an intent to scandalize the Administration of Justice, + to bring the same into Contempt, + to raise Sedition,” tc (as the words were laid) spoke such words, publish’d such a Book, or did such an Act, ag:^t the Peace of our Lord the King, his Crown + Dignity.2

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Vid Estates. p.251

vid. Vol 4. p. 5.2

How may They be Acquired? 1: ^st By ^a Occupancy, where the Title Accrues by the first

Entry. Wood. B2. c3. p 227.4

2^dly By Descent Inheritances may lineally ^b descend but not Ascend. x7 So the X Father can never come to the Lands which his Son has purchased in Fee simple by lineal Ascent, tho’ He may by collateral Ascent; As when the Son’s Lands come to his Uncle (as Lands may Ascend in the collateral Line), They may afterwards come to his Father as Heir to the Uncle. ^c The Uncle in this Case is Heir, but not absolute Heir. For if after the Descent to the Uncle, the Father hath Issue another Son or D:^ter, that Issue shall enter upon the Uncle, + take the Estate from Him, etc.

One must be Heir to Him that was last ^d actually seised, or that hath actually enter’d on the Lands. For if a Tenant in Fee-s:10 of Land, Rent, Advowson, Use, etc., hath a Son + a Daughter by one Venter,11 + a Son by Another, + dies

This was formerly settled Law here, but has since been ruled otherwise, in the case of Ames + Fisher. And Savage + Glover ^{and Leveret + Clark}. These Determinations directly against Law, said to be by some sound common lawyers.12

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dies without Issue before actual Seisen, the younger Brother is Heir to the Father. But if the Elder Bro^r. had enter’d, the Sister should have been Heir to Him. None can inherit any Lands as Heir, but Only the Blood of the ^a first Purchaser. f As if the Father purchases, the blood of the Mother shall never inherit. But if a Son purchases, and there is no Heir on the Part of the Father, then shall the Lands go to the Heirs on the Part of the Mother. For they are of the Blood of the Son, the first Purchaser. But where Lands do X Descend from the Part of the Mother, the Heirs of the Part of the Father shall never Inherit. So on the Contrary. Observe then the Difference where the Son purchaseth Lands in Fee-s:4 + where He cometh to Them by Descent on the Part of the Mother, or of the Father.

None shall have Land of Fee-s:⁴ by Descent as Heir to any man, unless He is Heir of the ^b Whole Blood ‘As if a man has two Sons by Divers Venters,5 + the Elder purchaseth Lands in Fee-s: + dies without Issue, the younger Brother shall not Inherit, but the Uncle of the Elder Brother, etc. A Sister of the Whole Blood shall be preferred before the younger Brother of the Half-Blood. But the younger Brother may be Heir to his Father or Uncle, for He is of the whole Blood to them. ^c Half-Blood is no Impediment

of Descent as to Fee-s: Lands of the Crown, or to Dignities.7 neither is it respected in Estates in T;8 because the Issues do claim in by Descent per Formam Doni;9 + the Issue in T is ever of the Blood to the Donee.

Paterna paternis, materna maternis. 1 Inst. 13. a.10

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^a Note, That an Heir shall never enter + take as a Purchaser, if He is named only to take by way of Limitation of Estate in Course of Descent.

In short, Lands + Tenements in Fee-s:2 Descend, 1^st To the Eldest Son as Heir, + to his Issue: The Sons first in order of Birth, + for want of Sons to all the Daughters equally. For where there are Females in Equall Degree, they all inherit as one Heir, + as Coparceners.3 2:^dly If the Eldest Son has no Issue, then to the next eldest Brother of the whole Blood, + his Heirs; + for want of a Brother to a sister, or Sisters of the Whole Blood, + to Her + their Issue. 3:^dly For want of a Brother or Sister, to an Uncle + his Issue; or for want of Uncle to a Aunt or Aunts, + her + their Issue, 4.^thly Thence to the Father. 5.^thly Thence to the half-Blood + their Issue. 6^thly for want of Uncle, Father + half-blood + their Issue, to the next of Kin in the Collateral Line. Wood B2. c3. p. 228. 229. 230.4

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See Same Tit: p.44, 5.1

If a Jury give a verdict on their own knowledge, they ought to tell y^e Court so-etc. 1 Salk 405. anon:2

If y^e Court do believe that y^e Jury have given their verdict ag^t evid: they may order a new Trial. 2 Lill: abr: 605.3

If y^e plt do fail in proving his issue, y^e verdict ought to be found for y^e dft, except if Jury do know of their own knowledge, that y^e dft is guilty. So that y^e Jury is not tied up by y^e evid: that they must always give their verdict according to it, for a man’s own knowledge is y^e best proof of things. Ibid. 644.4

If any one of y^e Jury, that is sworn to try y^e issue, be desired to give his testimony concerning some matter of fact, that lies in his own knowledge, + concerns the matter in Q:ⁿ,5 as evid: to his fellow-jurors, y^e Court will have him examined openly in Court upon his oath, touching his knowledge therein, + he is not to deliver his testimony in private to his fellow-jurors; for y^e Court + Council6 on both parts are to hear the

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Same Tit. ante.1 evidence given on either side as well as y^e Jury, that it may be answered by y^e other party, if need require, + that y^e Court may direct y^e Jury to find according to y^e evidence. 1 Lill: Abr: 512:

Viner Evid: 2 Lill: Abr: 126.3 (L.a.3.). pl: 1.4

A privilege of the constitution of England—the jury-judges of Law as well as fact. 2 Macaulay’s hist:^y of Eng:^d 135. q.v. Edit. 1769.5

The Court cannot refuse a Gen:¹ Verd:^t if the Jury will take the Law upon themselves. Trials per Pais 7^th Edit: 1739. p.250.—and 246. 247, 8, 9.6

The Jury may give their verdict without testimony, or against testimony, when they themselves have cognisance of y^e fact. Ibid. 295. cites Plow: Com: 86.7

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Same Title antea. + postea 50.1 Jury may go upon Evid: of their own personal knowledge, being returned de vicineto. Per Vaughan CJ. Viner Evid: (H) pl: 4. cites Vaugh. 147. Bushel’s Case2

Evidence is only given for information of y^e Consciences, + therefore if no Evid: is given on either part, yet may y^e Jury find y^e verdict either for y^e plt or dft. 3 H. 7. 11. a Frowicke,3 tho’ ye Evid; given be conclusive, yet y^e Jury may find ag^t it, + hazard y^e attaint if they please. Ibid. Evid.

(N. a.) pl: 6. cites Raym: 405 Chichester v. Phillips4 & Jones. 146. SE. but it does not appear.5 Matter in LAW shall not be given in Evid: to y^e Jury, but y^e other may demur upon it; for Lay Gents can not discuss matter in Law as it seems there, but it is not expressly adjudged there. Viner Evid. (Z.a) pl: 1. cites Br: General Issues. pl: 51. w^ch cites 9. H. 6. 33.6 It seems it ought to be such a matter y^t [that] y^e judge may take to be doubtfull. Ibid (U. b: 1) pl: 1 note note cites Heath’s max: 95. SE.7

In Demr: on Evid: y^e consent of both parties is requisite. Ib: pl: 5. cites Heath’s Max: 96.8^__________But

See post: 589

Page [50]

vid. same Titles in the Index at the End1

If a lease be made at Will, after a Quarter of a Year is commenc’d, the Lessee may determine it, but then He is oblig’d to pay that Quarter’s rent; + in Case the Lessor determine his Will, after the commencement of a Quarter, He shall lose the Rent for that Quarter: But here a Lease is made from year to year so long as both Parties please, there after a year is commenc’d, neither the Lessor nor Lessee can determine their Wills for that year, they having for so long certainly Will’d the Estate. Holt. 415. 416.2

Lessor may distrain or bring debt for Rent arrear ag^t Lessee for years, ^x but then it behoveth that the Lessor was seis’d of the Tenements at the Time of the Lease made, for nil habuit etc. is a good Plea for the Lessee unless the Lease be made by Deed indented. Lit. Sect. 58. (Co: Lit: 44.a) Co: Lit 47.b.3

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¹ Legacy is a particular Bequest or Gift of Goods + Chattels to one or more by Testament.

² If there is a specifick legacy, or any particular Thing given in Specie, as a Lease, a Horse, a Silver Crop, etc. This must be deliver’d accordingly before any Other Legacy, if there are Assets.

³ There is a Difference where the Property of a Thing is given, + when the Use of it only is given. For a Man may give the Use of his Plate, etc to One for Life, Remainder to Another. But if the Plate was given for Life, or for an Hour, a Remainder to Another would be void, + the Legatee may dispose of it. But if He does not dispose of it, He in Remainder shall have it. (A Bequest of a Chattel personal for Life, etc is now construed to mean the same Thing as a Bequest of the Use of it. 1 Vern 35.)5

⁴ A, devises £100 a peice to two Children of IS at the End of ten years after his (the Testator’s) Decease: The Children died within the ten years. This is a lapsed legacy + shall not go to the Exc^ttors of the Children; for the Diversity is where the Bequest is to take Effect at a future Time, + where the Payment is to be made at a future Time. Whenever the Time is annex’d to the Legacy itself + not to the Payment of it, if the Legatee dies before the Time of Payment; in that Case it is a lapsed Legacy. If a Legacy be devised generally, + no Time ascertained for the Payment, + the Legatee be an infant, He shall be paid Interest from Expiration of the first year after the Testator’s Death: But if the Legatee be of full Age, He shall only have Interest from the Time of his Demand, Otherwise it is in the Case of an Infant because

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no Laches1 are imparted to Him. But where a certain Legacy is left payable at a Day certain, it must be paid with Interest from that Day. 2 Salk. 415.2

¹ A father bequeth’d Goods to his Son, when He sh^d be of the Age of twenty one years, + if He die before that Time, then his Daughter sh.^d have them; Afterwards the Father died, + then the Son died before He was of Age; Adjudged, that the Daughter sh.^d have the Goods given in Legacy immediately, + not stay till her Brother w.^d have been of Age, if He had lived.

² A Legacy was devis’d to an Infant, to be paid when He sh.^d come of Age, + he died before that time; Ruled that his Admn^ttor sh.^d have it presently, + not stay untill the Infant w.^d have been of Age, had He lived.

Devise of a Legacy of £100 charg’d on Lands, + to be paid on the 29^th Day of September, 1668; the Legatee died Intestate before that Day, + her Admini^ttix exhibited a Bill for the Money, w^ch the Dft w.^d have avoided, because the Intestate had it upon Condition, (viz.) if She had lived till the 29^th of Sept:^ber w^ch Condition is now dispensed with by the Act of GOD, (viz) by the Death of the Legatee before the Time this Condition was to be perform’d, and w^ch now is impossible to be perform’d; but the Court held, that an Interest was vested in the Legatee, + by Consequence it shall go to her Admini^ttix. Chan. Cases 112. Innocent + Ux v. Taylor.5^{______________}

And this agrees with the Civil Law,6 by which the Right of the Legatee is consider’d in two Capacities; One which makes him Master of the Legacy immediately so that He may

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demand the Delivery of it; the Other is a Right w^ch puts him in a Condition to demand it, tho’ not immediatly; now in the first Case, the Time is come in w^ch the Right is vested in the Legatee, + the Legacy is then due; + in such case if the Legatee dies before he hath rec.^d the Legacy, ’tis transmitted to his Admin^ttor, for in that moment of Time when the Testator died, the Right is vested in the Legatee; + tho’ there is a certain Time appointed for the Payment of the Legacy, yet since the Legatee hath acquir’d a Right by surviving the Testator, he transmits that Right to his Admin^ttor, tho’ He die before that Time. 2 Dom. 180. 181.1

By the Civil Law there is no Survivorship amongst Legatees; for if Goods are devised to Two jointly, + afterwards One of them dies, the Exc^ttor of the dead Legatee shall have his Share, but where the Testator devised goods to Two jointly, + the Exc^ttor assented to the Legacy, + then one of them died; ajudged that by this Assent an Interest is vested, + ’tis become a Chattel, and governable by the Rules of Common Law. 2 Lev. 209 Bustard v. Stakely.2

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See Same Title Ant: 44 + 50.1 If a plt. in evid: shows any matter in writing, or of record, or any sentence in y^e Ecclesiastical C.^t + y^e Dft offers to demur thereto, y^e plt may not refuse to join in Dem:^r,2 but he must do it, or wave his evid:. So if y^e plt produce wit:^s to prove any matter in fact upon which a Q:ⁿ in law arises, if y^e dft admits there [for “their”] testimony to be true, he may demur upon it, for matter of law shall never be put in the mouth of Lay gents;3 so may y^e plt demur upon evid: of dft, Mu tatis mutandis.4 Vin: Evid (U: b: 1.) pl 8. cites 5 Rep: 104. a. Baker’s Case. Cro: E. 751. pl. 9. Midleton v Baker S C & S P per tot: Cur: accordingly.5 But in this latter case of Evid: by wit:^s, y^e other unless he pleaseth shall not be compelled to join, because y^e testimony is to be examined by y^e jury, + y^e Evid: is certain, + may be enforced more or less.6

’Tis y^e property of y^e Court, jus dicere.

Tri: per Pais. 1. Edit: 7.1739.7

Page [55]

See the question—whether juries are judges of law as well as fact?—treated of in a masterly manner by the Author of “Considerations on Criminal Law.” (p. 128 of that work) Reviewed in the Monthly Review May 1772 page 471 472 etc.1

Page [56]

Page [57]

Page [58]

vid of Statutes or Acts. p. 89.

vid. 4 vol. p. 101.1

The Advantages resulting from Laws lie often closely conceal’d while y^e little Inconveniences y^t [that] attend them are most sensibly felt. Spirit of Laws. B 27. ch: 1.2

Men are govern’d by several kinds of laws; by y^e Law of Nature; by y^e devine Law, w^ch is y^t [that] of3 Religion; by ecclesiastical, otherwise call’d canon Law, w^ch is y^t [that] of religious Polity; by y^e Law of Nations, w^ch may be consider’d as y^e civil Law of the Universe, in w^ch Sense every Nation is a Citizen; by the general political Law, whose Object is y^t [that] human wisdom which has been the foundation of All Societies; by y^e particular political Law, w^ch relates to each Society; by y^e Law of Conquest founded on this, y^t [that] One Nation has been willing + able, or has had a Right to offer Violence to Another; by y^e civil Law of every Society by w^ch a Citizen may defend his Possessions + his Life, against y^e Attacks of any other Citizen; in fine, by domestic Law, w^ch proceeds from a Society’s being divided into several families, all w^ch have need of a particular Government.

There are therefore different Orders of Laws, + the Sublimitly of human Reason consists in perfectly knowing to w^ch of these Orders y^e Things y^t [that] are to be determin’d ought to have a principal Relation, + not to throw into Confusion those Principles w^ch sh.^d govern Mankind. Ib. B 26. c: r4

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Laws in their most general Signification, are y^e necessary Relations resulting from the Nature of Things. In this Sense All Beings have their Laws, the Deity has his Laws, y^e material World its Laws, y^e Intelligences superior Man have y^r [their] Laws, y^e Beasts y^r [their] Laws, Man his Laws. Sp: Laws B1 c:2 The Laws of Nature derive y^r [their] force entirely from our Frame + Being, + therefore so call’d.

The Law w^ch by imprinting on our Minds y^e Idea of a Creator inclines us to Him, is y^e first in Importance, tho’ not in Order, of natural Laws.

Peace is y^e first Law of Nature. Another Law of Nature prompts to seek Nourishment. The attraction arising from y^e Difference of Sexes, + y^e natural Inclination they have for Each Other, form a third Law.

A fourth Law of Nature arises from the Defire of living in Society. Ib. ch: 2.3

Men consider’d as Inhabitants of so great a Planet which necessarily implies a Variety of Nations, they have Laws relative to their mutual Intercourse, w^ch is what we call y^e Law of Nations. Consider’d as Members of a Society that must be properly supported, they have Laws relative to y^e Governors + y^e governed; + this we call Politic Law.

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They have also another Sort of Laws relating to the mutual Communication of Citizens; by which is understood y^e Civil Law.

The Law of Nations is naturally founded on this Principle, y^t [that] different Nations ought in time of Peace to do One Another All y^e good they can, + in Time of War as little Harm as possible, without prejudicing their real Interests.

Sp: Laws. B. 1. ch. 3. p. 7.1

By natural Law we understand, a Law that God imposes on All Men, + w^ch they are able to discover + know by the sole Light of Reason, + by attentively considering their State + Nature.

Natural Law is likewise taken for the System, assemblage, or Body of the Laws of Nature.

Burlamaqui’s Poin: of Nat:¹ Law. p. 126.2

The Law of Nations, properly so called, + consider’d as a law proceeding from a superior, is nothing else, but the Law of Nature itself, not applied to Men consider’d simply as such; but to Nations or States. Ibid. p. 195.3 Says Hobbes very justly, is divided into the natural Law of Man, + the natural Law of States; + the latter is what we call the Law of Nations.

De Civi. Cap. 14 p. 4.4

The Law of Nations is the Science of the Law subsisting between Nations or States, + of the Obligations that flow from it. Vattel’s Law of Nations. p. 1.5

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“In our Law, the Judges are bound, by a sacred Oath, to determine according to the known Laws + antient customs of the Realm, set down in judicial Decisions + Resolutions of learned, wise, + upright Judges, upon variety of particular facts + Cases, which, when they have been thus in use + practised Time out of mind, are Part of the Common Law of the Kingdom. And it is a most dangerous thing to shake or alter any of the Rules or fundamental Points of the Common Law, which in Truth; are the main Pillars + Supporters of the Fabrick of the Commonwealth. To have no Rule to decide Controversies but the Rule of Equity, is to begin the World again, + to make Choice of that Rule, which out of mere Necessity was made Use of in the Infancy of the State + Indigency of Laws. And to set up this Rule, after Laws are establish’d to relieve hard Cases + leave the Matter at large, is it not rather unravelling, by unperceiv’d Degrees, the fine + close Texture of the Law, which has been so many years making The Laws of this Kingdom are not, now-a-days, to be spun out of mens’ Brains, pro Re nata.”1

“To allow any man’s Discretion (says L^d Coke) that sits in the Seat of Justice, would bring forth a monstrous Confusion.” L^r: on Libels, Warrants tc p. 85. 86.2

Old Sir Edward Coke said, with some Humour, in Charles the First’s Reign, at the Head of the Commons in their Conference with the Lords—“For a Freeman to be Tenant at will of his Liberty! I will never agree to it: it is a

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Tenure not to be found in all Littleton. “It is (as He says, in one of his Treatises) a great Deal better for the State, that a particular Offender should go unpunished, on the one hand, or that a private Person, or public minister, should be damnified on the other by the Rigour of the Law, than that a general Rule of Law should be broken to the general Trouble + Prejudice of many.” L^r: on Libels, Warrants, etc.,1 p.92.

Laws are the instruments + sinews of all blessings. ——A law ought to give warning before it strickes: and it is a good rule, — That is the best Law which gives least liberty to the arbitrage of the Judge,—which is that, the CERTAINTY thereof affecteth. L.^d Bacon’s Adv: of Learning p. 293-294. Edit: 1674. Lib.8.2

Laws are the Conditions, under which men, naturally equal, united themselves in society.

Beccaria on Crim: + Pun: p 5. c:1.3

Laws are the Anchors of the Republick. L^d Bac: Adv^t: of Learning 307.4

Page [63]

vid Bills etc. in the Index at the End of this Book1

Note to pay two Months after the Ship is paid off is good, + negotiable. 1 Strange 24.2

Note payable so many Days after Marriage, not negotiable. 2 Ibid. 1151.3

Note payable so many Days after Death Drawer’s father is good + negotiable. 2 Strange 1217.4

Note to be accountable for money is within the Statute + negotiable. 1 Strange 629.5

Note to deliver Horses, tc + pay Money, not within the Statute 2 Strange 1271.6

A Note to pay for the Debt of Another; is negotiable. 1 Strange 264.7

Consideration of a promissory Note may be inquir’d into. Ibid 674.8

Ch Justice said there was no standing Rule, for the Time in which a Note must be demanded, but must be left to the Jury. 2 Strange 910.9

^x That Indeb. assum.10 will lie on a Note of Hand; vid 2 Strange 725.11 And of the Alteration made by Statute of Ann. vid the whole Case of Story vs Atkins. Str. 719.12

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There must be a Demand on the Drawer of the Note, before the Indorsor can be charged. 1 Strange 649. 1087.1

Contra in Bills of Exchange. 1 Strange 441 515.3 But if Indorser pays Part of the Note, demand on the Drawer is unneccessary. Strange 1246.4 Notes may be indors’d by an Administrator.

Strange 1260.5 Innocent Indorsee of a gaming Note can maintain no Action against the Drawer. 2 Strange 1155.6

Where Part of a Note is rec.^d of the Drawer, the Indorsor is not to be resorted to for the rest. Ibid. 745.7 Notice of the Indorsement of a negotiable Note is not necessary. Comyns. 563. Skip vs. Hook.8

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Vid. Pleading + Evidence in the Index at the End of this Book. and also, Under Abatement. Vol. 2. p. 129. vid. p.36.1

Pleas that go to the Right or Merit of the Complaint, are of two Sorts: 1^st pleas to the Action, which denies the Substance of the Complaint: And commonly make either, 1:^st A general Issue; As, In Trespass, not Guilty. In Debt upon a contract, Nil Debet. In Assumpsit, Non Assumpsit. In assize, Nul Tort, Nul Disseisin. In Dower, Nunque dei Seize de Dower. In a Writ of Right, that the Tenant has more Right to hold, than the Demandant has to demand. 2. Or a common Issue; as In Debt on a Bond, or Action of Covenant, Non est factum.2 In an Assize of Mort D’ancestor, Aile, Besaile etc, That the Ancestor was never seised.3 2 Pleas in Bar: These are very various + different; according to the several Kinds of the Ten’t’s or Dft’s Case. Bars are either such as are, 1:^st proper. 2. Common. Pleas in Bar are considerable, 1:^st In their (Nature or) Matter. 2. In their Qualities or Manner of Pleading. 1:st Bars, according to the nature of the Action, + Case of the Parties, are very various + different, yet Somewhat concerning them follows: 1:^st Proper Bars are, 1:^st such as are applicable only to real or mix’d Actions as, Fine; Feoffment; Release of Right; Warranty, etc Of the Plt; or his Ancestor. 2. Such as are proper to personal actions only; as Accord with Satisfaction. Arbitrament; Performance, 1^st of the Condition. 2. of the Bond.

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2. Such Bars as are common to both, yet diversify’d oftentimes with such Diversifications As are applicable to the Nature of the Action; As, 1:^st Release of Action. 2 Limitation of Time by Act of Parliament. 3. Estoppels. The several kinds of Estoppels: 1^st By Matter of Record. 2. By Matter in Pais; as Deeds Indented or Poll.1 NB2 Estoppels are not only Matter of Bars, but of Replications, Rejoinders, + all other Pleadings. 2. Concerning Bars as to their Qualities or Manner of Pleading the same common Rules of Pleading, for the most Part concerns all Kinds of Pleading. And therefore they are here inserted once for all, viz. 1:^st That the Plea be single, + not double. 2. That it have convenient Certainty of Time, Place, + Persons. 3. That it answer to Demandant’s or Plf’s count or Plaint. 4. That it be so pleaded, that it may be try’d.

Replications must be, 1:^st Certain. 2. Single. 3. Answering the Bar, etc. A Replication either, 1:^st denies or traverses the Bar or Plea of the Dft; 2. Or confesses + avoids.

Rejoinders must maintain the Bar + not depart from the Plea. Hale’s Anal: 49.3 vid Co: Lit: 125. a+b4 Haw. Abr. 188-9.5

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^a In Pleading, Estates in fee simple may be generally alleged; but the Commencement of Estates T2 + other particular Estates regularly must shewed. Wood B 2. c 1. p 1233

In ^b TRESPASS, if one plead not guilty, He f cannot give the special +5 matter in Evidence.6

Qu. vid. p. 1587 In DETINUE, the Dft on Non Detinet, pleaded cannot give in Evidence, that the Goods were pawned to Him.

In WASTE, on Nul Waste pleaded, one may give in Evidence, Lightning, Enemies, etc for this will prove it to be no Waste. But He cannot give in Evidence justifiable Waste, or that He cut down Trees to Repair the House, or any other special Matter. In all these Cases, + the like, one must plead specially. Wood. b. 4. Ch. 4. p. 610.8

Whenever one cannot have the advantage of the special Matter, ^d9 He shall take Advantage of it in Evidence. Ibid. 611.⁸

+ But see, The two cautions laid down by Coke. Co: Lit. 283. + that whole Page read Carefully.⁵

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vid. the opposite Page

He that demurreth in Law confesseth all such matters of Fact as are well + sufficiently pleaded. If there be a Demurrer for part + an Issue for Part, the more orderly Course is to give Judgment upon the Demur^r; first, but yet it is in the Discretion of the Court to try the Issue first if they will. After Demurrer join’d in any Court of Record, the Judges shall give Judgm^t. according as the very Right of the Cause + Matter in Law shall appear, without Regarding any Want of Form in any Writ, Return, Plaint, Declaration or other Pleading, Process or Course of Proceeding; except those only which the Party demurring shall specially + particularly set-down + express in his Demurrer. Now what is Substance + what is Form you shall read in 3 Rep. 57. Linc: Col:’s Case, 5 Rep. 74 Wymeck’s Case, 10 Rep. 88 usque 98 Dr. Leyfield’s Case.1 Co: Lit. 72. a.2

If one pleads a Lease, Gift or Feoffment of Ten’ments which lie in Livery, or a Grant of Things which lie in Grants; he shall conclude Virtute cujus fuit inde seisitus;3 but He that pleads a Lease of Lands, shall say, Virtute Cujus intravit, & fuit inde Possessionatus,4 for a Man is not possess’d by force of such Lease before Entry. Haw. abr. 2845

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Regularly whensoever a Man doth Anything by Force of a Warrant or Authority, He must plead it.

Co: Lit. 283. a.1

DEMURRER confesses only Matter of Fact, + that only when it is well pleaded, but it never confesses Matter of Law. L^d Raym^d. p. 18.2

Vid. The Title———Of Special Pleas on Debt. 2 Mod. Ent. 302.3 Of Pleading Estates. Ibid. 327.4

Page [70]

vid Release in the Index at the End of this Book. vid vol. 2. p. 224. vid vol. 4. p. 5.1

A¹2 Release is a Deed or Instrum^t, whereby a Man doth give or discharge the Right or Action, which He hath or claimeth ag.^t another out of or in Lands etc. ²3 It is usually made by the words, Have remised, Released, + for ever Quit (Quiet) Claims, or by other words to the same Purpose. Wood B2. c. 3. p 2894

Releases are either ³5 Express or implied. Express re: is by Deed. An Implied R is that which the Law makes, + is sometimes by writing, + sometimes without Writing. A Release in Law is more favorable expounded than a R in Deed Ibid.6

⁴7 Releases either ensure 1:^st By way of Enlarging an Estate; being made by a Reversioner to a Lessee in Privity with Enlarging Words. 2. By Way of Mitter le Estate,8 or transferring it; As if One Jointenant or Parcener Release to Another. For this must be between Privies. 3. By Way of Mitter le Droit,9 which transfers the Right of Rsor to the Rsee;10 as when Disseisee releases to Dissor,11 + makes his Estate Rightfull which was wrongfull. Here a release of a bare Right for an [Hour] etc. is as good as if it where made to the Other + his Heirs + It is not requisite that there sh^d be any Privity between the Parties to such a Release. By way of Extinguishment only against all Persons, when the Releasee cannot have the Thing released. As when the L.^d releases his Territory to his Ten’t¹² of the Land, or when the Grantee of a Rent-Charge, or of a Common, releases to the Ten’t of the Land the Rent-Charge or Common. For One

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man cannot be Lord + Ten’t, He cannot have Land & Rent, nor Land + Common of Pasture out of the same Land.

¹A R1 is of more force in Law than a Confirmation. But Note that if a Charge or Duty grows by Record, the Release must be upon Record. If By Deed, the R must be by Deed. p. 289.2

Who may make or take Releases? As a man may release any Debt or Duty due to Himself, so a Man may release any Thing or any Wrong due to His Wife before or after Marriage. And if the Wife is ² Exi^ttx4 to Another, The H may release any Debt or Duty due to the Testator, but the Femme Exi^ttx cannot to the Prejudice of her H. Regularly the R of an Infant is void. An Infant Exc^ttor may release a Debt duly paid to Him as Exc^ttor. But if He releases that which He doth not receive, the R is void. An Exc^ttor before ³5 Probate of y^e Will, may release a Debt or Duty due to the Testator, because he Hath an absolute Interest of the Debt in Him. And tho’ He cannot have an Action before Probate, yet He may release an Action. If one Releaseth, + then taketh Admin^tton, This R shall not bar Him: for He had no Right of Action at the Time of the R. + If one releases an Exc^ttor, this shall release⁴6 all Actions, which He had also in his own Right. (Qu.)7

One Tenant in ⁵8 Common cannot release to the other, because the Freehold is several.

If this is not wrongly expressed. Vid Showers as cited in the margin.9

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It is to be observed, that no¹ Right passeth by a R, but the Right which for the Res^ttor1 had at the Time of the R made. If He has no Right the R is void.

If he to whom an R is made, hath nothing in the Lands, that R is void also.

^{x 2} It behoveth Him to whom the R is made, that He hath a Freehold in the Land in Deed or in Law, or a Reversion or Rem^ttder⁴ in Fees: Fee T or for Life at the Time of the R made, or else He cannot take the R.

What Things may, or may not, be released? Supposing a Right in the R^esor, + that the R^esee hath Something in the Lands, tc. ²3 Lands, Ten^ttments + Hereditaments may be given + transferred by way of R + all Rights to Lands + may be give + Discharged by it. A R by a L’sor to his L’see for years or at Will, having enter’d by force of such Lease, is good in Respect of the Privity betwixt Them; Therefore not to a Tenant at Sufferance. A R to a Lessee for years in Futuro, or before Entry, (tho’ it may extinguish the rent reserved) yet it cannot inlarge it for want of Possession. If a next Avoidance is granted to two, one may release to the Other, before the Church is void, not afterwards, because it is (as it were) but a Chose in Action Rights, Titles to Goods + Chattels, Actions, real, personal & mixt, may be released. ³4 Also Conditions annexed to Estates, Powers of Revocations of Uses, Warranties, Covenants, (even before they are broke by a R of all covenants).

Services

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Services, Rents, Commons + other Profits to be taken out of Lands may be discharged Extinguished + Determined by a R1 to the Ten’t of the Land. etc. A Condition cannot be released upon Condition; but the R will be good, + the Condition void. Wood p. 290.2 Mere Possibilities cannot be released-yet see what Possibilities may be released. Ibid._ Debts, ^a3 Legacies by a R of a Legacy, + other Duties, may be Released before or after they become due. A man cannot release a ^b4 Personal Thing as an Obligation upon Condition Sub-sequent, because a Personal Thing once Suspended is Extinguished forever.

The Construction of Releases. Sed vid.5 Wood. B2. Ch 3. 291.\ More at large Where there are two Exec^ttors, a R of one, before judgment bars of the other, not after judgment. ^†In a R of All Actions, Causes of Actions are released. But within a Submission of All Actions to Arbitram ^†ø Causes of Action are not contained.^ø7 He that hath Right of Entry may enter tho’ He hath released all actions, and if one takes my goods, I may take them out of his Possession, tho’ I have released all Actions.

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A R of all Actions will not discharge ^a1 Executions

or bar one to take out Excon. But a Discharge of All Suits will be A bar to n Excon.2

A R of All Actions will not Discharge Any Thing, for which the Releasor had ^b3 No Cause of Action at the Time of the R made. But money on Bond to be paid at Michaelmas4 may be released by the Obligee; because the Right of Action was in Him before. Yet Rent payable at that Time cannot be discharged by a R of all actions; nor an Annuity.5 But one may Release the Rent etc. before the Day, by Special Words. It will Release the Arrears due before the Making the R.

A R of all ^c6 Dues (Debita) will release Personal Actions + Executions; but it will not bar an Account. For there is nothing certainly due before Account made.7 But a R of all Actions will be a good Bar in Account. A R in full of All Accounts, shall be extended only to an Account. One cannot release a Debt or Duty by his ^{d 7} Will. A R of all ^{e 9} Rights in any Lands or Tenements does release + discharge all Manner of Rights of Action + Entry; but not a Possibility of a Right, that He hath at the Time of the R; or a Right that shall Descend to Him afterward.

A

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A R of One’s ^a1 Title to Lands + Ten^ttments is A R of All One’s Rights.

A R of All ^b2 Demands (a Word of Art) or Claims in the best R of All, is the most effectual words to bar etc. Vid

Wood B2. C3. p. 2923

(vid p. 26 of this Book)4

A R of a Right to One that hath but a bare Right regularly is void; for He to whome a R is made of a bare Right in Lands + tenements must have Either a Freehold in Deed, or in Law in Possession, or a State in Remainder or Reversion in F or T, or for Life. Co: Lit. 267.a.bot.5

If a Lease for Years be made to two, albeit the Lessor before they enter cannot release to them to enlarge their Estate, yet One of them may Before Entry Release to the Other. Ibid. 270. b.6

A Freehold in Law may be enlarg’d by R before Entry. Ibid.7

Page [76]

Vid. The two Pages preceeding L.^d Reeves Directions to his Nephew: (in this Book at the Beginning.)1 vid. Of Laws

p.63. 4 vol. 101.2

For the sure + true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the Com. Law,) four things are to be discern’d + consider’d. 1. What was the Common Law before the making of the Act. 2. What was the Mischief + Defect for which the Common Law did not provide. 3. What Remedy the Parliament hath resolved + appointed to Cure the Decease of the CommonWealth. And 4. the true Reason + Remedy. 3 Rep. 7. b.4

To Interpret a Law, we must inquire after the Will of the Maker: which may be collected either from the words, the Context, the Subject-matter, the Effects + Consequences, or the Spirit + Reason of the Law.

From the Latter Method of Interpretation arises EQUITY, or the Correction of that wherein the Law (by Reason of its Universality) is deficient.

Blackstone’s Anal. B. 1. Ch 2. p 3.5

The Obscurity & Uncertainty of the Law now under our Consideration, proceeds from a

† For the COUNTRIES subject to the Laws of ENGLAND; vid. page 3 of this Book.¹

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very a very1 natural Cause, a Cause which renders all Laws obscure, that are intended by the Promoter to incroach upon the Rights, Liberties + Priviledges of the People.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.

When we talk of the Meaning + Intention of (such) Laws, we ought to distinguish between the Meaning + Intention of those that were the cheif Promoters of them, + the Meaning + Intention of those who only gave their Consent to the passing Them. As to the former, I make no Question, but it was their Intention to oblige etc.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​.​. tho’ they durst not declare their Meaning + Intention in express words, because it w.^d either have thrown out their Bill, or have occasion’d the inserting some express words against what they intended: They therefore chose to draw up their Bill in a dubious Sort of Expression, that after they had got it pass’d into a Law, they might make the most of it in the Execution.

Cn. Octavius. L-M Jan^y 17422 The Exposition of Statutes or Acts shews the extension of the words of the Law to Cases unexpress’d, yet having the same Reason: So that where one Thing is enacted, All other Things of the like Nature are included. Thus the Statute of Gloucester3 gives an Action of Waste against Him that holds Land for Life, or Years: For which Reason, a Person shall have an Action

Page [78]

of Waste against Tenant for One Year or half a Year, though without the Words of the Act; because within the Meaning of it. The ^a1 Preamble of a Statute is like a Key to open the Intent of the Makers of the Act; And as it is deem’d true, good Arguments may be drawn from it. But the best ^b2 way to explain a Statute is to consider what Answer the Lawgivers wou’d probably have given to the Question made, if propos’d to them. Introd. Know. Laws + Con. of Eng. p. 117. vid. 4 Bac: Abr: 649.3

^a 1st Inst. 11.¹

^b Plowd 465 3 Nels. abr. 265.²

Acts of Parliam.^t are to be construed, as no Man that is innocent or free from Injury or Wrong, be by a litteral Construction punish’d or indamag’d: ^†4 therefore in this Case ^x albeit the Letter of the Statute is generally to give Damages ag^t Him that is found Tenant, yet in this Case ^x, the Tenant shall not be charg’d with Damages.^x 1 Inst. 360. a.5 ^x A Case put by Littleton.6

^† For the rule is Nemo punitur etc. and actus legis etc. (vid. 3 vol.183) 2 Inst. 287.⁴

Three things are worthy of Observation concerning the Construction of Statutes. 1:^st That it is the most natural and genuine Exposition of a Statute to Construe one Part of the Statute by another Part of the same Statute, for that best expresseth the Meaning of the Makers. 2:^dly The words of an Act of Parliament must be taken in a lawfull + rightfull Sense. And the general Rule is, quod non praestat impedimentum quod de Jure non sortitur Effectum.7 3:^dly That Construction must be made of a Statute in Suppression of the Mischief, + in Advancement of the Remedy. Et Qui haeret in Literâ, haeret etc. Co: Lit. 381. a. + b.8

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Littleton in Sect:ⁿ 108, speaking of the Statute of Merton, says, “That no action can be brought upon this Statute, insomuch as it was never seen or heard, that any Action was brought upon that Statute: And if any action might have been brôt, it shall be intended that at some time it would have been put in Use.”1 Hereby it appeareth, saith my L:^d Coke, how safe it is to be guided by judicial Presidents. The rule being good, Periculosum existimo quod bonorum Virorum non comprobatur Exemplo.2 And as Usage is a good Interpreter of Laws, so non Usage where there is no Example is a great Intendment, that the Law will not bear it; for saith Littleton, if any Action etc.3 Not that an Act of Parliament by non Use can be antiquated or lose its/his force, but that it may be expounded or declar’d how the Act is to be understood. Co: Lit. 81. a + b. Sed vid Vaugh. 169 170.4

The best expositor of All Statutes are our Books + Use or Experience. 2 Inst. 25.5

A statute (albeit it be penal) shall not be so literally expounded, as it will have no Effect, for Verba intelligi debent cum Effectu. Ibid. 84.6

vid. 2. Lilly 527. 1 Plowd. 86.b.

Partridge v. Strange7 Statutes must be so construed, as no collateral Prejudice grow thereby. Ibid. 112.8

It is a good Exposition of a Statute, when the Reason of the Common Law is pursued. Ibid. 148.9

A

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A Statute of Explanation shall be constru’d only according to the Words, + not with any Equity of Intendment: For there cannot be an Explanation upon an Explanat:ⁿ, as it is held in Butler + Baker’s Case in L:^d Coke’s 3:^d Rep.t1 and Jones said it was so resolv’d in the Court of Wards by the Opinion of the Cheif Justice in Anno. 43. Eliza. Cro Car. 23.2

All Statutes whatsoever, which are made in abridgment of any Right of the Subject ought to be strictly construed.

Haw: P.C. B2. ch23. s. 42.3

Where a mischief is to be remedied by a Statute, the Remedy in the Exposition of the Statute is to be applied according as the Mischief doth require.

2 Leon. Case. 114.4

When an Act alters the Common Law, the Meaning shall not be strain’d beyond the Words, except in Cases of publick Utility, when the End of the Act appears to be larger than the Words themselves. Vaugh. 179.5

When the words of a statute extend not to an Inconvenience rarely happening, but doth to those which often happen, it is a good Reason not to strain the Words farther than they will reach, by saying, that it is Casus omissus, and that the Law intended quae frequentius accedunt.

Vaugh. 373.6

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’Tis a known rule in Interpretation of Statutes, that such a Sense is to be made upon the Whole, as that no Clause, Sentence or Word shall prove superfluous, void or insignificant, if by any other Construction, that may All be made usefull and pertinent. 1 Show. 108.1

The fairest + most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made; by signs the most natural + probable. And these signs are either the words, the context, the subject matter, the effects + consequence, or the spirit + reason of the law. 1 Black: Comment: Introd. s. 2. p.59 q.v.2

The true key for construing a statute is to consider the subject matter of it, and the ends and purposes for which it was made. But perhaps this may be better done from the history + circumstances of the times, than ex visceribus of the statute. Wilson’s Rep. 192. b.3 The words of the statutes are not only to be considered, but rather the intent of the makers is to be weighed; for the intent is the principal thing to be considered. Ibid. 1934 And sometimes statutes are to be expounded against the letter, to preserve the intent. Ibid.5

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What L:^d Hobart fo: 157, says, is very strong to the same purpose, “It is, says he, the office of judges to advance laws made for religion, according to their end:_

And again, L:^d Hobart says, 346, “Judges have liberty + authority over statutes to mould them to the truest + best use, according to reason + best convenience. Wilson’s Rep. 193: b.1

The Danger Of Considering y^e Spirit of Laws

There is nothing more dangerous, than the common axioms: the spirit of the laws is to be considered. To adopt it is to give way to the torrent of opinion. This may seem a paradox to vulgar minds, which are more strongly affected by the smallest disorder before their eyes, than by the most pernicious, tho’ remote, consequences produced by one false principle adopted by a nation. Marquis Beccaria’s Essay on Crimes + punishments. p. 15, 6. quod vide.2 The disorders that may arise from a vigorous observance of the letter of penal laws, not to be compared with those produced by y^e

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interpretation of them. The first are temporary inconveniences which will oblige y^e legislator to correct y^e letter of y^e law, the want of preciseness, + uncertainty of which has occasioned these disorders; and this will put a stop to the fatal liberty of explaining; the source of arbitrary + venal declarations. When y^e code of laws is once fixed, it should be observed in y^e literal sense, + nothing more is left to y^e judge, than to determine, whether an action be, or be not conformable to the written Law. When the rule of right which ought to direct the actions of the philosopher, as well as the ignorant, is a matter of controversy, not a fact, the people are slaves to the magistrates. Ibid. 16. 17.1

The Best Way to construe Modern Statutes is to follow y^e words thereof. Per Cur: Wilson’s Rep: 290. Entick v. Carrington + ors—‘Gen.^le War:^T2

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In a case upon y^e Stat. of Frauds, Sir Geo. 97 Treby, as Amicus Curiae, informed y^e court y^t he was present at y^e making y^e Statute + what was y^e intention of the parliament. 2 Vin: 476. pl. 12.1 cites Comb: 33. Horton v. Ruesby2

Qu:

How y^e Intention of Parliament can be rightly discovered in this way: unless y^e Informant knew absolutely what determined the concurrence of Each Branch of y^e Legislature:—qu: w[hether] y^e is possible to be known:—and qu: of y^e Consequences of their mode of determin:g + judging of y^e Intent of Law-makers, and Qu: etc.3

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Lies for an accidental Hurt. 1 Strange 596.1 Where the Act is lawfull, as the fixing a Spout, & the Consequence injurious, the Remedy is by Case, & not Trespass. Ibid. 634.2

Laying hold of a Horse, no Trespass without particular Damage:_And the Dft, on Not Guilty, may justify in Evidence. 2 Ibid 872.3

Lies for setting the End of a Bridge, on the Plt’s Soil, tho’ a Highway. 2 Str. 1004.4

Officers of the Customs liable in Trespass for wrong Seisure, notwithstanding probable Cause._One Partner brings Trespass without his Companion, it must be pleaded in Abatement.—Aliter in Assumpsit. 2 Strange 820.5

Amends not pleadable to Trespass for the taking goods. 1 Strange 549.6

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A Copy of Mr. Prat’s Minutes.1 Vid. vol. 3 p. 12 Banister vs. Cunningham. + p. 24. + p. 64.² T Banister devises all his Lands + personal Estate after Payment of Debts + to his 3 sons Thomas, Samuel, + John to be equally divided among them in equal shares, or Proportions + if Either his 3 Sons die without Heirs lawfully begotten in wedlock, their share or Proportion to the surviving Son or Sons + their Heirs forever.

And died leaving such 3 Sons + one Daughter.

25 Jan.^y 1708

Sam^l + John gave Tho^s, the Son a Power of Attorney to sell etc execute any Deeds for conveying + assuring the Same.

Recorded 11 Sep.^t 1714

28^th March 1713 date ackn by a witness 15 July 1714 14 July 1714

Tho.^s for himself + as Attorney to Sam^l + John sells to Dyer with Warranty. Deed ackn. + recorded immediately. Dyer reconveys to Thomas. John died without Issue June 30^th 1714. Thomas for himself + as Attorney to Sam.^l (reciting that John was dead) sells with Warranty to Dyer a moiety of the demanded Premises inter alia, duly ackn. + recorded.––

Dyer reciting the afores.^d Deeds tc reconveys all in them convey’d to him (excepting etc) to Samuel and his Heirs.––

15 July 1714.

10 Dec.^ber 1714.

21 June 1714.

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Thomas died leaving Issue the Plts.

Saml. conveys the Warranty to the Dft’s father. Saml. dies without Issue 1744. Upon the whole it seems the Intent of the Testator was to convey to the 3 Sons an equal Tenancy in common in Fee determinable upon either of them dying without Issue in the Life of some other Son, + then an executory Devise over of such Deceased’s Share to the Survivor of the Survivors. And the Intent is well enough consistent with Law.

But ’tis enough for our Purpose to say + prove.

1 Tis no intail. vid. Kanchet’s Case 3 Mod. 104 per cur. 107.2 3 Cro. 57.3 Vid. also Miller’s Case Barn Chan. 74

12 Sept.^ber 1716

28 Dec.^m 1733

(1) There is no express words to make an Inheritance; if there is any created, ’tis but Implication: And Implication from paying is as strong for a Fee, as any Thing is for an In-tail. 2 Vern. 687.5

(2) Double Implication.

2 If an Intail. Rem.^rs6 were executed.

(1) Not executory Devises for if dying etc means failure of Issue generally at any Time, it could not be follow’d by an executory Devise. vid. 2 Bacon 72 top.7

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E converso. (2) No contingent Remainders

3 The Rem^rs or Devises over are fees i.e. on John’s Death to Tho.^s + Saml. + their heirs + the Survivors of them. vid. Mo. 864.

Ergo |N1190.1

4 No cross Rem^rs i.e. on Saml.’s death, no going back to the heirs of Tho.^s––No Survivor. Vid. 2 Cro. 655.2

Ergo.

On the Death of John, Thomas + Saml. were Joint-tenants in fee of his undisposed of Part, + what was undisposed of by Thomas went on his death to Saml. as Survivor.

Gridley’s Minutes

vid. 2 vol. 149. 1503

Allen vs. Allen. Uncle + Nephew

vid. Law-file C4

Nephews do not take by Representation, are therefore a Degree further off–––––take by Polls, not by Stocks.

Vinnius 555.5

Successions vary in different Countries. The only Question about the Degree, the Law must be follow’d, without Regard to Lines. 1 L.^d Raymond, 574,6

According to the civil Law our Law in one path + the statute in another. vid. Ventris 316. 2. Modern 205. Jones 93. 2 Lev 173 Raymond’s Rep.^ts 497. Novel 118.7 Minutes

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Minutes from Strange2 restating New Tryals vid. p. 158.3 vid. Red Rep. 70. Angier vs. Jackson.4 vid Law file A5 Strange. 691. Price vs. Brown.6

No new Tryal where the Party might have had Evidence before. 692.7 Not a second Time for excessive Damages: 11058 Not to be granted where the Evidence is doubtfull.

1142. Ashley vs. Ashley.9 No new Tryal were Evidence on both Sides, the Jury judges which Scale preponderates.

1151.10 New Tryal comes in the Room of Attaint. vid. Tit. New trial. 2. Mod Ent. 354. b.11

Minutes relative to Wills. vid Lfile C.12 The Law requires a certain Integrity of Mind to y^e making a Testament: And it is not Sufficient y^t y^e Testator can answer to common Questions Swinburn 69. 70. 74. Swinburn 68.13

6 Rep.^t 23. a. Mary Winchester’s Case14 Legatee may be a Witness ag^t a Will. 2^d Salk^d 692.15

Minutes for the Argument upon P’s Will. The Points are curious. Many Auth:^s cited. vid. Law-file C.16 Minutes relative to Wills, Sanity etc. Ibid

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Minutes concerning Church Wardens vid Law-file C.1

Minutes in a Cobbiseconte Cause. vid. Ibid. vid below in this page.2

Mess^rs Read + Auchmuty’s arguments in favor of the Partibility of Estates-tail. at Ply. Sup. Court. Anno 1720 Vid. Ibid,3 Vid Red Rep^ts p. 57 Baker vs. Mattocks4

Minutes in the Question, whether Nephews take by Representation or per Capita.

Vid. Ibid. and G’s minutes supra.5

W[h]ether, a negro woman being with Child complains to a Just Pacis6 of a free White Man being the father, can the Justice upon such Complt issue his Warrant ag^t the Man + recognize him to appear before the Sessions as provided by the Prov. Law p. 10. 11 in Case of a White Woman gotten with Child. This Question answer’d in the Negative. + the reasons Why. vid. Law-file C.7

Minutes relative to Kennebeck Lands Law-file C. vid above, in this Page.8

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The 10 Queries in the Salt-Case answer’d. Ship, cargo, + all the Salt she brôt, seis’d for bringing Salt three Weeks after it was stored in a ware-house etc. vid. Law-file C.1 Many Points worthy notice in this Case.

Kellock Admin^ttix vs. Kellock.2 April 1756. Kellock Dft + one Haven had Admin^ttor granted, but the Judge, upon finding Kellock Dft indebted to the Intestate, revok’d s.^d Admin^tton + granted adminon to Kellock Plt, who brings this Suit for the Recovery of the Debt afores^d.

Minutes in this Case in favor of the Dft.

(1) Admin^tton duely granted cannot be revoked 3 Salk. 21. bot.3 1 L.^d Raymond. 685. bot.4 1 Lill. 38.5

(2) If revocable it cannot be revoked without a Citation 1 L.^d Raym. 685.6

(3) If both Points against Us,7 this action will not lie. For Admin^tton being, while it continued, good, the Debt is Assetts in the Hand of the Admin^ttor + therefore the Admin^tton Bond being sued Judgm^t w^d be against Us for so much as we rec^d, and the Debt would be as so much Money received.

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vid. Vol.4.p.5.2

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An arrest by Night, as well as Day, lawfull. 9 Rep. 66.1 If 3 joint Tenants be disseised,2 + they arraign an Assise3 and one of them release to the Disseisor4 all Actions personal, this shall bar Him, but it shall not bar the other Plts, for having regard to them the Realty shall be prefer’d, + Omne maius trahit ad se Minus. 1 Inst. 285.a.5

It is regularly true, that when [one] does less than He commanded or authorised, there the act is void; because the Command or Authority was not pursued. But where One doth that which he is Authorised to do, + more, it is good for that which was warranted, + void for the rest. Wood B1. 66. p 58 cites 1 Inst. 258. A and 8 Rep. 85.6 Agreeable to that Maxim, Quando plus fit etc Vid. Vol 3. p. 172.7

Note that when an Ideot doth Sue or Defend, He shall not appear by Guardian, Prochein amy,8 or Attorney, but He must be ever in Person, but An

vid Haw abr 2089

Infant or Minor shall sue by Prochein Amy + Defend by Guardian. 1 Inst. 135. b.10

Generally, whatsoever an Infant11 is bound to do by Law, this same shall bind Him, albeit He doth it without Suit of Law. Ibid. 172. a.12

An infant may bind himself in a single

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Bill to pay for Necessaries, but a Bond with a Penalty, for the payment of such Debt is not good. Haw Abr. 258.1

There is a Diversity when the condition is for Paym^t of Money; and when for Delivery of a Horse, Robe etc. For where it is for Paym^t of Money, there if the Feoffee or, Obligee accept an Horse etc. in Satisfaction, This is Good—But if the Condition were for the Delivery of a Horse, Robe etc., there albeit the Obligee or Feoffee accept money or any other thing for the Horse etc., it is NO Performance of the Condition. The like law is, if the Condition be to acknowledge a Recognizance of £20. etc. If the Obligee or Feoffee accepts 20£ in Satisfaction of the Condition it is Not Sufficient in LAW, but not-withstanding such Acceptance, the Condition is broken. And so it is of all other Conditions collateral, tho’ the Obligee or Feoffee himself accept it.

Secondly, in the Case when the Cond^tton is for Paym^t of Money, there is a Diversity, when the Money is to be paid to the Party + when to an Estranger2 for, when it is to be to an Estranger, there if the Estranger accept an Horse or any collateral Thing, it is NO Performance of

Page [115]

the Cond^tton, because the Cond^tton in that Case is strictly to be perform’d. But if the Cond^tton be, that a Stranger shall pay to the Obligor or Feoffor a Sum of Money, there the Obligee or Feoffee may receive a Horse in Satisfaction.

Thirdly, where the Condon1 is for Paym.^t of 20£, the Obligor or Feoffor cannot at the Day appointed pay a lesser Sum in Satisfaction of the whole, because it is apparent that a lesser Sum of Money cannot be a Satisfaction of a greater. But if the Obligee or Feoffee do at the Day receive part, + thereof make an Acquitance under his Seal in full Satisfaction of the Whole, it is Sufficient, by Reason the Deed amount’d to a Acquittance of the Whole. If the Obligor or Lessor pay a lesser Sum before the Day, or at another Place, than is limit’d by the Cond^tton + the Obligee or of Feoffee receiveth it, This is a Good Satisfaction.

Fourthly, Not only Things in Possession may be given in Satisfaction, but also if the Feoffee or Obligee accept a Statute or a Bond in Satisfaction of the Money, it is a Good Satisfaction. (Qu. vid Mod. Cases in Law

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+ Equity. p 290. 2 Strang 426. 3 Lev 55)1

If the Obligor or Feoffor be bound by Cond^tton to pay 100£ at a certain Day + at the Day the Parties do Account together, + for that the Feoffee or Obligee did owe 20£ to the Obligor or Feoffor that Sum is allow’d + the Residue of the 100£ paid, this is a Good Satisfaction, + yet the 20£ was a Chose in Action2 + no paym^t was made thereof, but by Way of Retainer or Discharge. Co Lit. 212. b. 213. a.

vid Haw. Abr. 299. 300.3

Holt4

If a Bailiff find an outward Door open, He may break all the inner to come at the Party, whom He hath a Warrant to arrest. 12 Mod. Rep. 73.5

^xvid. p. 156 Trover brôt.6

Where Wife has but a bare Possession, as if She find Goods, or they be bail’d to Her, or She be Ex^ttix to a Bailee, + marry, Detinue^x must be brot ag.^t H + Wife. Haw. Abr. 448.7 For this bare possession is not given to the Husband: And this is a Diversity, worthy of Observation, between a Property in personal Goods + a bare Possession. Co. Lit. 351. b.8

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Page 123

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[From Quincy’s “Volume 4,” QP58]

cursim, Libris exscprita.1

vid. Vol. 1. p. 1502

vid. Vol. 1 p. 25. 47,3

+A Deed, without Premises, Habend., Tenend., Reddend.,4 Clause of Warranty, the Clause of In Cuius Rei Testimonium the Date, & the Clause of Hiis Testibus, is Good. Co:Lit:7.a.5

^f If A devise 20 acres to B, & that He shall pay to his Exc^ttors for the same ten pounds, hereby the Devisee hath a Fee Simple, without the words his Heirs, albeit it be not to the Value of the Land. Ibid. 9. b.7

If there be 3 Coparceners or Jointenants, +one of them ^a releases to the other two, or to one of them generally without this word (Heirs.) a Fee passes. Ibid.9

Where the Lord releases to the Tenant, or the Grantee of a Rent, etc such Release to the Ten’t of the Land generally of all his Right, etc, hereby the Seignory, Rent etc are ex- [‡] tinguish’d forever, without this word (Heirs.) Ibid11

When a bare Right is released, as when the Disseisee release to the Disseisor all his Right, He need not speak of his Heirs. Ibid12

If a Feoffment or Grant by Deed to a mayor + communality, or any other Corporation aggregate of many Persons capable, they have a ffee without the word (Successors) because in Judgment of Law they never die. Ibid14

In Grants sometimes an Inheritance shall pass without this word (Heirs), as if Partition be made between coparceners of Lands in Fee simple, + for Owelty

Page [126]

of Partition, the one grant a Rent to the other generally the Grantee shall have a Fee Simple, without this word (Heirs). because the Grantor has a Fee Simple, in consideration whereof He granted the Rent; Ipsae etenim Leges cupiunt ut iure regantur. Co:Lit: 9.b.10.a1

Of Lands of the Nature of the Gavelkind be given to B + his Heirs, having issue divers sons, all his sons • after his Dicease shall inherit: but if a Lease for Life be made be made the Remainder to the Right Heirs of B, & B dieth, his Eldest Son only shall inherit, for He only to take by Purchase is Right Heir by the Common Law: So Note a^x Diversity between a Purchase & a Descent. Ibid. 10. a3

A Seisin in Deed is necessary (if it may be attain’d unto) to make a man Tenant by the Curtesy: A man (nor tenant in Dower. Hawk. abr. 42)6

shall not be Tenant by the Curtesy _ of a bare Right, Tithe, Use, or of a Reversion or Remainder expectant upon any Estate of Freehold, unless the particular Estate be determin’d or ended during the Coverture. Ibid 29.a.7 And Memorandum (says Lit: S.52)8 that in every case where a man taketh a wife seis’d of such an Estate of Tenements &c as the Issue which He hath by his wife may by possibility inherit the same Ten’ments of such an Estate as the wife hath, as Heir to the wife, in such case, after the Decease of the wife, the Husband shall have the same Tenements by the Curtesy of

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England, but otherwise not.—Coke’s Com Lang.—If a man taketh a wife seis’d of Land or Tenements in ffee, & hath Issue, & after the wife is attainted^x of Felony so as the Issue cannot inherit to her, yet He shall be Tenant by Curt.^y, in Respect of the Issue which He had before the Felony, & w^ch by Possibility might then have inherit’d. But if the wife had been attainted of Felony before the Issue, albeit He hath Issue afterward, He shall not be Ten’t by the Curtesy. “As Heirs to the wife” Lit: This (says Coke) doth imply a Secret of Law, for except the wife be actually seis’d, the Heir shall not make Himself Heir to the wife: and this is the Reason, that a man shall not be Ten’t by Curt:^y of a seisin in Law. Co. Lit: 40.a2

A man must be seis’d Either in Deed or in Law, during the Coverture to intitle his wife to Dower. For a woman shall be endow’d of a Seisin in Law, for it lieth not in the Power of the wife to bring it to be an actual Seisin, as the Husband may of the wife’s Land, when He is Ten’t by Curtesy, w^ch is worthy observation. Yet of every Seisin in Law or in Deed, the wife shall not be endow’d. For Example &c Co: Lit.31.a4—Also the Husband may be Seised in his Demesne, as of Fee absolutely, yet the woman shall not be endowed both of the Land given in Exchange, & of the Land taken in Exchange, & yet the Husband was Seised of Both, but She may have her Election to be endowed of which She will Co: Lit: 31.b.5

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If two jointenants be in Fee, & the ^x one maketh a Feoffment in fee, his wife shall not be endowed. Co: Lit: 31.b1 The wife shall have Dower according to the improv’d value, & not according to the value as it was in her Husband’s Time, for her Title is the Quantity of the Land, viz one third Part. Ibid. 32.a2 And the like Law it is if the Heir improve the Value of the Land by Building: and on the other side, if the value be impair’d in the Time of the Heir, She shall be endowed according to the value at the Time of the assignment. Ibid.3 (vid Co: Lit 171.a & b concerning Partition among Parceners)4

A devise by will cannot be averred to be in Satisfaction of Dower, unless it be so express’d in the will. Ibid. 36.b.6

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A, Ten’t in ffee simple, makes a Lease of Lands to B to have & to hold for Term of Life, without mentioning for whose Life, it shall be. it shall be deem’d of the Life of the Leasee, for it shall be taken most strongly against the Lessor, & an Estate for a man’s own Life is higher than for Life of Another. But if Ten’t in T make such a Lease, without expressing for whose Life, this shall be taken for the Life of the Lessor, for two Reasons. 1:^st when the Construction of any Act is left to the Law, the Law w^ch abhoreth Injury of wrong will never so construe it, as it shall work a wrong: And in this case, if by the construction it sh:^d be for Life of the Lessee, then sh.^d the Estate T be discontinued; and a new Reversion gain’d by wrong. But if it be construed for the Life of Ten’t in T, then no wrong is brought. And it is a General Rule, that whensoever the words of a Deed, or of the Parties, without Deed, may have a double Intendm:^t & the one standeth with Law & Right, & the other is wrongfull & ag:^t Law, the Intendment that standeth with Law shall be taken. 2:^dly The Law more respecteth a Lesser Estate by Law, than a larger Estate by wrong. Co: Lit: 42. a & b.2

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If Ten’t in Fee take wife, & make a Lease for Years, & dieth, the wife is endow’d, She shall avoid the Lease, & after her Decease, the Lease shall be in force again. Co: Lit 46. a.2

^x Note the Diversity between a Rent reserv’d upon a Lease for Years, reserving a yearly Rent: The Lessor may have several actions of Debt for every years Rent. But upon a Bond or Contract for Payment of several sums, no action of Debt lieth till the last Day be past. Co: Lit 47. b.5 292. b6 vid Massachusetts perpetual Laws. 8 & 9. Geo. 2. ch. 2.7

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