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all deeds hollow, and subject to averments, and so in effect, that to pass without deed, which the law appointeth shall not pass but by deed.

Therefore if a man give land to I. D. et I. S. et hæredibus, and do not limit to whether of their heirs, it shall not be supplied by averment to whether of them the intention was the inheritance should be limited.

So if a man give land in tail, though it be by will, the remainder in tail, and add a proviso in this manner: Provided that if he, or they, or any of them do any, &c. according to the usual clauses of perpetuities, it cannot be averred upon the ambiguities of the reference of this clause, that the intent of the devisor was, that the restraint should go only to him in the remainder, and the heirs of his body; and that the tenant in tail in possession was meant to be at large.

Of these infinite cases might be put, for it holdeth generally that all ambiguity of words by matter within the deed, and not out of the deed, shall be holpen by construction, or in some case by election, but never by averment, but rather shall make the deed void for uncertainty.

But if it be ambiguitas latens, then otherwise it is: as if I grant my manor of S. to I. F. and his heirs, here appeareth no ambiguity at all; but if the truth be, that I have the manors both of South S. and North S. this ambiguity is matter in fact; and therefore it shall be holpen by averment, whether of them was that the party intended should pass. So if I set forth my land by quantity, then it shall be supplied by election, and not averment.

As if I grant ten acres of wood in sale, where I | have a hundred acres, whether I say it in my deed or no, that I grant out of my hundred acres, yet here shall be an election in the grantee, which ten he will take.

And the reason is plain, for the presumption of the law is, where the thing is only nominated by quantity, that the parties had indifferent intentions which should be taken, and there being no cause to help the uncertainty by intention, it shall be holpen by election.

But in the former case the difference holdeth, where it is expressed, and where not; for if I recite, Whereas I am seised of the manor of North S. and South S. I lease unto you unum manerium de S. there it is clearly an election. So if I recite, Whereas I have two tenements in St. Dunstan's, I lease unto you unum tenementum, there it is an election, not averment of intention, except the intent were of an election, which may be specially averred.

Another sort of ambiguitas latens is correlative unto these for this ambiguity spoken of before, is when one name and appellation doth denominate divers things, and the second, when the same thing is called by divers names.

As if I give lands to Christ-Church in Oxford, and the name of the corporation is "Ecclesia Christi in Universitate Oxford," this shall be holpen by averment, because there appears no ambiguity in the words: for this variance is matter in fact, but the averment shall not be of intention, because it doth stand with the words.

For in the case of equivocation the general intent includes both the special, and therefore stands with the words: but so it is not in variance, and therefore the averment must be of matter, that do endure quantity, and not intention.

As to say, of the precinct of Oxford, and of the University of Oxford, is one and the same, and not to say that the intention of the parties was, that the grant should be to Christ-Church in that University of Oxford.

THE

USE OF THE LAW;

FOR

PRESERVATION OF OUR PERSONS, GOODS, AND GOOD NAMES,

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that may touch his credit, the law giveth thereupon an action of the case for the slander of his good name; and an action of battery, or an appeal of maim, by which recompence shall be recovered, to the value of the hurt, damage, or danger.

Appeal of murder given to the next of kin.

If any man kill another with malice, the law giveth an appeal to the wife of the dead, if he had any, or to the next of kin that is heir, in default of a wife; by which appeal the defendant convicted is to suffer death, and to lose all his lands and goods: but if the wife or heir will not sue, or be compounded withal, yet the king is to punish the offence by indictment or presentment of a lawful inquest and trial of the offender before competent judges; whereupon being found guilty, he is to suffer death, and to lose his lands and goods. Man-slaughIf one kill another upon a sudden ter, when a for- quarrel, this is man-slaughter, for which feiture of goods, and the offender must die, except he can when not. read; and if he can read, yet must he

lose his goods, but no lands.

And if a man kill another in his own defence, he shall not lose his life, nor his lands, but he must lose his goods, except the party slain did first as sault him, to kill, rob, or trouble him by the highway side, or in his own house, and then he shall lose nothing. Felo de se. lands. Felony by mischance.

And if a man kill himself, all his goods and chattels are forfeited, but no

If a man kill another by misfortune, as shooting an arrow at a butt or mark, or casting a stone over a house, or the like, this is loss of his goods and chattels, but not of his lands nor life. If a horse, or cart, or a beast, or any Deodand. other thing do kill a man, the horse, beast, or other thing is forfeited to the crown, and is called a Deodand, and usually granted and allowed by the king to the bishop almoner, as goods are of those that kill themselves.

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required, until they had become bounden with sureties to keep the peace; which obligation from thenceforth was to be sealed and delivered to the constable to the use of the king; and that the constable was to send to the king's exchequer or chancery, from whence process should be awarded to levy the debt, if the peace were broken.

But the constables could not arrest any, nor make any put in bond upon complaint of threatening only, except they had seen them breaking the peace, or had come freshly after the peace was broken. Also, these constables should keep watch about the town for the apprehension of rogues and vagabonds, and night-walkers, and eves-droppers, scouts, and snch like, and such as go armed. And they ought likewise to raise hue and cry against murderers, manslayers, thieves, and rogues.

High constahundred. Petty constables for every vil lage.

bles for every

Of this office of constable there were high constables, two of every hundred; petty constables, one in every village: they were in ancient time all appointed by the sheriff of the shire yearly in his court called the Sheriff's Turn, and there they received their oath. But at this day they are appointed either in the law-day of that precinct wherein they serve, or else by the high constable in the sessions of the peace.

The King's Bench first instituted, and its jurisdic

The Sheriff's Turn is a court very ancient, incident to his office. At the first it was erected by the Conqueror, and called the King's Bench, appoint- tion. ing men studied in the knowledge of the laws to execute justice, as substitutes to him, in his name, which men are to be named "Justiciarii ad placita coram rege assignati:" one of them being capitalis justiciarius, called to his fellows; the rest in number as pleaseth the king: of late but three justiciarii holden by patent. In this court every man above twelve years of age was to take his oath of allegiance to the king; if he were bound, then his lord to answer for him. In this court the constables were appointed and sworn; breakers of the peace punished by fine and imprisonment; the parties beaten or hurt recompensed upon complaints of damages; all appeals of murder, maim, robbery, decided; contempts against the crown, public annoyances against the people, treasons and felonies, and all other matters of wrong betwixt party and party for lands and goods.

Court of Marshalsea erected, and its jurisdiction within 12 chief tunnel,

miles of the

&c.

But the king seeing the realm grow daily more and more populous, and that this one court could not despatch all, did first ordain that his marshal should keep a court, for controversies arising within the verge, which was within twelve miles of the chicfest tunnel of the court; which did but ease the King's Bench in matters only concerning debts, covenants, and such like, of those of the king's household only; never dealing in breaches of the peace, or concerning the crown by any other persons, or any pleas of lands.

Insomuch as the king, for farther Sheriff's Turn ease, having divided this kingdom into instituted up. counties, and committing the charge of sion of Eng

on the divi

land into

Counties, &c. Likewise call sus franci ple

led "Curia vi

gii."

every county to a lord or earl, did direct that those earls, within their limits, should look to the matter of the peace, and take charge of the constables, and reform public annoyances, and swear the people to the crown, and take pledges of the freemen for their allegiance; for which purpose the county did once every year keep a court, called the Sheriff's Turn; at which all the county, except women, clergy, children under twelve, and aged above sixty, did appear to give or renew their pledges for allegiance. And the court was called, "Curia visus franci plegii," a view of the pledges of freemen; or "Turna comitatus."

Subdivision of the county court into hundreds.

At which meeting or court there fell, by occasion of great assemblies, much blood-shed, scarcity of victuals, mutinies, and the like mischiefs, which are incident to the congregations of people, by which the king was moved to allow a subdivision of every county into hundreds, and every hundred to have a court, whereunto the people of every hundred should be assembled twice a year for survey of pledges, and use of that justice which was formerly executed in that grand court for the county; and the count or earl appointed a bailiff under him to keep the hundred court.

The charge of the county

taken from the earls, and

committed to

the sheriff.

But in the end, the kings of this realm found it necessary to have all execution of justice immediately from themselves, by such as were more bound than earls to that service, and readily subject to correction for their negligence or abuse; and therefore took to themselves the appointing a sheriff yearly in every county, calling them Vicecomites," and to them directed such writs and precepts for executing, justice in the county, as fell out needful to have been despatched, committing to the sheriff custodiam comitatus, by which the earls were spared of their toils and labours, and that was laid upon the sheriffs. So as now the sheriff doth all the king's business in the county, and that is now called the Sheriff's Turn; that is to say, he is judge of this grand court for the county, and also of all hundred courts not given away from the crown.

The sheriff is judge of all hundred courts, &c.

He hath another court called the County court kept monthly county court, belonging to his office, by the sheriff. wherein men may sue monthly for any debt or damages under 40s. and may have writs for to replevy their cattle distrained and impounded by others, and there try the cause of their distress; and by a writ called justicies, a man may sue for any sum; and in this court the sheriff by a writ called an exigent doth proclaim men sued in courts above to render their bodies, or else they be outlawed. This sheriff doth serve the king's The office of writs of process, be they summons, or attachments, to compel men to answer to the law, and all writs of execution of the law, according to judgments of superior courts for taking of men's goods, lands, or bodies as the cause requireth.

the sheriff.

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hundred to

bles.

What matters

court, is to appoint two high constables Lord of the of the hundred, and also is to appoint appoint two in every village a petty constable, with high constaa tithing-man to attend in his absence, and to be at his commandment when he is present, in all services of his office for his assistance. There have been, by use and statute law, besides surveying of the pledges of they inquire freemen, and giving the oath of allegi- of in leets and law-days. ance, and making of constables, many additions of powers and authority given to the stewards of leets and law-days, to be put in use in their courts; as for example, they may punish inn-keepers, victuallers, bakers, butchers, poulterers, fishmongers, and tradesmen of all sorts, selling with under-weights or measures, or at excessive prices, or things unwholesome, or ill made, in deceit of the people. They may punish those that do stop, straiten, or annoy the highways, or do not, according to the provision enacted, repair or amend them, or divert water-courses, or destroy fry of fish, or use engines or nets to take deer, conies, pheasants, or partridges, or build pigeon-houses; except he be lord of the manor, or parson of the church. They may also take presentment upon oath of the twelve sworn jury before them of all felonies; but they cannot try the malefactors, only they must by indenture deliver over those presentments of felony to the judges, when they come their circuits into that county. All those courts before mentioned are in use, and exercised as law at this day, concerning the sheriff's lawdays and leets, and the offices of high constables, petty constables, and tithing-men; howbeit, with some further additions by statute laws, laying charge upon them for taxation for poor, for soldiers, and the like, and dealing without corruption, and the like.

Conservators of the peace term of life, or by writ for at the king's

pleasure.

Conservators of the peace were in ancient times certain which were assigned by the king to see the peace maintained, and they were called to the office by the king's writ, to continue for term of their lives, or at the king's pleasure. For this service, choice was made of What their office was. the best men of calling in the country, and but few in the shire. They might bind any man to keep the peace, and to good behaviour, by recognizance to the king with sureties, and they might by warrant send for the party, directing their warrant to the sheriff or constable, as they please, to arrest the party and bring him before them. This they used to do, when complaint was made by any that he stood in fear of another, and so took his oath; or else where the conservator himself did, without oath or complaint, see the disposition of any man inclined to quarrel and breach of the peace, or to

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That there should be justices of peace by commissions, it was first enacted by a statute made 1 Edw. III. and their authority augmented by many statutes made since in every king's reign.

To fine offenders to the crown, but

not to recompense the party grieved. Parl. stat. 17 R. 2. cap.

10. et. v. Dyer 69. b. Ils ount poier d'inquier de mur

der car ceo est felon.

Authority of the justices of peace, &c.

one.

They are appointed to keep four sessions every year; that is, every quarter These sessions are a sitting of the justices to despatch the affairs of their commissions. They have power to hear and determine, in their sessions, all felonies, breaches of the peace, contempts and trespasses, so far as to fine the offender to the crown, but not to award recompence to the party grieved.

They are to suppress riots and tumults, to restore possessions forcibly taken away, to examine all felons apprehended and brought before them; to see impotent poor people, or maimed soldiers provided for, according to the laws; and rogues, vagabonds, and beggars punished. They are both to license and suppress ale-houses, badgers of corn and victuals, and to punish forestallers, regrators, and ingrossers.

ing, burning of houses.

Through these, in effect, run all the county ser vices to the crown, as taxations of subsidies, mustering men, arming them, and levying forces, that is done by a special commission or precept from the Beating, kill. king. Any of these justices, by oath taken by a man that he standeth in fear that another man will beat him, or kill him, or burn his house, are to send for the party by Attachınents warrant of attachment directed to the for surety of sheriff or constable, and then to bind the peace. the party with sureties by recognisance to the king to keep the peace, and also to appear at the next sessions of the peace; at which next sesRecognisance sions, when every justice of the peace of the peace delivered by hath therein delivered all their recogthe justices at nisances so taken, then the parties are their sessions. called, and the cause of binding to the peace examined, and both parties being heard, the whole bench is to determine as they see cause, either to continue the party so bound, or else to discharge him.

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Quarter sessions held by the justices of the peace.

The justices of peace in their sessions are attended by the constables and bailiffs of all hundreds and liberties within the county, and by the sheriff or his deputy, to be employed as occasion shall serve in executing the precepts and directions of the court. They proceed in this sort: The sheriff doth summon twenty-four freeholders, discreet men of the said county, whereof some sixteen are selected and sworn, and have their charge to serve as the grand jury; the party indicted is to traverse the indictment, or else to confess it, and so submit himself to be fined as the court shall think meet, regard had to the offence, except the punishment be certainly appointed, as often it is, by special statutes.

sions.

The justices of peace are many in The authority every county, and to them are brought of justices of the peace out all traitors, felons, and other malefac- of their sestors of any sort upon their first apprehension; and that justice to whom they are brought examineth them, and heareth their accusations, but judgeth not upon it; only if he find the suspicion but light, then he taketh bond with sureties of the accused to appear either at the next assizes, if it be a matter of treason or felony; or else at the quarter sessions, if it be concerning riot or misbehaviour, or some other small offence. And he also then bindeth to appear those that give testimony and prosecute the accusation, all the accusers and witnesses, and so setteth the party at large. And at the assizes or sessions, as the case falleth out, he certifieth the recognisances taken of the accused, accusers, and witnesses, who being there are called, and appearing, the cause of the accused is debated according to law for his clearing or condemning.

But if the party accused seem, upon pregnant matter in the accusation, and to the justice, to be guilty, and the offence heinous, or the offender taken with the mainour, then the justice is to commit the party by his warrant, called a mittimus, to the gaoler of the common gaol of the county, there to remain until the assizes. And then the justice is to certify his accusation, examination, and recognisance taken for the appearances and prosecution of the witnesses, so as the judges may, when they come, readily proceed with him as the law requireth.

of the ancient

The judges of the assizes as they be Judges of asnow come into the place of the ancient size in place justices in eyre, called "justiciarii itine- judges in eyre, rantes," which in the prime kings after Tem. R. II. the conquest, until H. III.'s time especially, and after in lesser measure even to R. II.'s time, did execute the justice of the realm; they began in this sort. The king, not able to despatch busi- King's bench, ness in his own person, erected the marshal's court, county court of king's bench. That not able court, sheriff's to receive all, nor meet to draw the turns, hundreds, leets, people all to one place, there were and law-days, dealt only in. ordained counties, and the sheriff's crown matturns, hundred courts, and particular ters; justices in eyre dealt leets, and law-days, as before men- in private titles of lands tioned, which dealt only with crown or goods, and matters for the public; but not the and felonies, private titles of lands, or goods, nor the

in all treasons which the

county courts meddled not in.

:

They were to stay three or four days in every county, and in that time all the causes of that county were brought before them by the parties grieved, and all the prisoners of every gaol in the said shire, and whatsoever controversies arising concerning life, lands, or goods.

:

trial of grand offences of treasons and | took his examination, and bound his accusers and felonies. All the counties of the realm witnesses to appear and prosecute at the gaol-dewere divided into six circuits and two livery. This justice doth certify these examinations learned men, well read in the laws of the realm, and bonds, and thereupon the accuser is called were assigned by the king's commission to every solemnly into the court, and when he appeareth, he circuit, and to ride twice a year through those shires is willed to prepare a bill of indictment against the allotted to that circuit, making proclamation before- prisoner, and go with it to the grand jury, and give hand, a convenient time, in every county, of the evidence upon their oaths, he and the witnesses; time of their coming, and place of their sitting, to which he doth and then the grand jury write the end the people might attend them in every thereupon either "billa vera," and then the prisoner county of that court. standeth indicted: or else " ignoramus," and then he is not touched. The grand jury deliver these bills to the judges in their court, and so many as they find indorsed "billa vera," they send for those prisoners; then is every man's indict- The manner of ment put and read to him, and they ask the proceedings of the him, whether he be guilty or not: if he justices of cirsaith, Guilty, his confession is recorded; cuits. if he say, Not guilty, then he is asked how he will be tried; he answereth, By the country. Then the sheriff is commanded to return the of the judges names of twelve freeholders to the court, for the gaoldelivery. which freeholders be sworn to make true delivery between the king and the prisoner; and then the indictment is again read, and the witnesses sworn to speak their knowledge concerning the fact, and the prisoner is heard at large what defence he can make, and then the jury go together and consult. And after a while they come in with a verdict of Guilty or Not guilty, which verdict the judges do record accordingly. If any prisoner plead Not guilty upon the indictment, and yet will not put himself to trial upon the jury, or stand mute, he shall be pressed.

of assize.

eyre

The authority
The authority of these judges in
of judges in
is in part translated by act of par-
eyre, translat-
ed to justices liament to justices of assize, which be
now the judges of circuits, and they to
use the same course that justices in eyre did, to
proclaim their coming every half year, and the place
of their sitting.

much lessened by the court of common pleas, erected in H. III.'s time.

The business of the justices in eyre, Justices of as- and of the justices of assize at this day, is much lessened, for that in H. II.'s time there was erected the court of common pleas at Westminster, in which court have been ever since, and yet are begun and handled the great suits of lands, debts, benefices, and contracts, fines for assurance of lands, and recoveries, which were wont to be either in the king's bench, or else before the justices in cyre. But the statute of Mag. Chart. cap. 11, is negative against it, namely, "Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco certo;" which locus certus must be the common-pleas; yet the judges of circuits have now five commissions by which they sit.

Justices of as

size sit by five commissions.

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assize.

:

Gaol-delivery The second is a commission of gaol-
directed only delivery, that is only to the judges
to the judges
and clerk of themselves, and the clerk of the assize
associate and by this commission they
are to deal with every prisoner in the gaol, for what
offence soever he be there, and to proceed with him
according to the laws of the realm, and the quality
of his offence; and they cannot by this commission
do any thing concerning any man, but those that are
prisoners in the gaol. The course now in use of
execution of this commission of gaol-delivery, is
this. There is no prisoner but is committed by
some justice of peace, who before he committed him

The judges, when many prisoners are in the gaol, do in the end before they go peruse every one. Those that were indicted by the grand jury, and found Not guilty by the select jury, they judge to be quitted, and so deliver them out of the gaol. Those that are found Guilty by both juries, they judge to death, and command the sheriff to see execution done. Those that refuse trial by the country, or stand mute upon the indictment, they judge to be pressed to death. Some whose offences are pilfering under twelve pence value, they judge to be whipped. Those that confess their indictments, they judge to death, whipping, or otherwise, as their offence requireth. And those that are not indicted at all, but their bill of indictment returned with "ignoramus" by the grand jury, and all others in the gaol, against whom no bills at all are preferred, they do acquit by proclamation out of the gaol; that one way or other they rid the gaol of all the prisoners in it. But because some prisoners have their books, and are burned in the hand, and so delivered, it is necessary to show the reason thereof. This having their books is called their clergy, which in ancient time began thus.

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