The heriot by law is optimum animal in rei veritate, but if the lord will, he may take the worst. And as it was said by a father, that lost his son in battle, novi me genuisse mortalem, so here Foster may say novi me cepisse mortalem.

[60 d]

Cr. 75. 5 Co.

87. a. b. The

[61] example of the

fellow servant,

suit, Have pa

Now since the execution of the body stands as a satis- 5 Reason. 21 Jac. cap. 24. faction between the same parties, while the party lives, 1 there is no sense but that the party yielding himself to the execution, and ending his life in it, and the other accepting it, and so both agreeing upon it, it should make a that made his final discharge touching himself; for it cannot be truly tience with me, and I will pay said, that the defendant is in fault, when being not able thee all. to pay his debt instantly, he yields his body, and lands, and goods, if he have any, to the course of the law and his creditor's choice, and endures with patience, without flight or escape, after the creditor chose his body. For it is a fancy to say that the debtor ought to pay his debt, for the law must be the same, whether he were able to pay or not.

1 Cro. 240.

And of all executions, that of the body in law is es- 6 Reason. teemed the best, as also in law of nature the best, and most forcible; and therefore, 7 H. 6. 6. by the opinion of Cotismore, if two executors have judgment, and the one pray a capias, and the other a fieri fac., the capias shall be awarded as best for the testator. And the common law gave not that execution, as being too hard and heavy, but only in the case of wilful wrong, vi et armis, for which none was thought too hard. And therefore 1 Cr. 205. barons were not subject to it, but upon great contempts; nor yet since the statute 25 Edw. 3., though they be not specially exempted.

Though the plaintiff have no direct interest in the body, as in his ward or villain, to buy or sell it, yet he hath interest in it for liberty or restraint by ward, till he pay ultimum quadrantem in salva et arcta custodia. Read the case in the 4th Chap. of the second Book of Kings, the creditors would take the two sons for bondmen.

Although in trespass vi et armis at the common law against a baron a capias lieth not, nor after, by the equity

[61 a]

6 Co. 52. b. 2 Le. 174.

It is a more fit comparison to speak of

beasts taken in execution by fieri fac. and

of the common law, upon the statute, because the estate of a baron is intended sufficient; yet 11 H. 4. 15. in homine replegiando, against Dame Spencer a peer of the realm, viz. a baroness born, it was granted, because it was an high injury to the person whom she eloined. Also the common law holdeth the body the greatest pain and highest coercion.

And the reason is apparent, for as Christ saith, The body is of more worth than raiment. And as it is said in Job, pellis pro pelle, and all that a man hath he will give for his life, but touch his flesh or his bones, &c. Now imprisonment toucheth both, in salva et arcta custodia.

Now touching the case that is agreed, 14 H. 4. 4. 15 E. 4. 10. that where a man takes distress for rent, and upon avowry hath return irreplevisable, that if a beast die dying, though in the pound, that now he may distrain anew, and that there be a pro- this should much convince the case in question; he that perty, which is not in the body looks near unto it shall find it nothing like; for besides that

of a freeman.

11 Mod. 21.

Co. 64. a.

there is no comparison between the body of a man and
beast, touching valuation, and so touching satisfaction, it
is to be noted that the sum of rent, or the valuation of the
damage is not adjudged to the avowant in the replevin,
and then the beast taken by him in execution, as in the
case in question, but where he had taken the beast by
distress, and that is replevied from him.
Now upon
the right of distraining appearing, the beasts are restored
unto him, in that state as they were before, to remain
with him as a distress lawfully taken by judgment of the
court, and not to be replevied; so this hath no colour of
an execution, but is only the effect of the agreement of
the parties, or act of law, be it in rent service or rent
charge, or damage feasant, that he may distrain and re-
tain, till the rent or damage be satisfied; so that even as
if the beast had died before judgment he might have dis-
trained again, so after judgment, for it is alike in both

cases.

But the body of a freeman cannot be made subject to distress or imprisonment by contract, but only by judg

ment.

But in this case the debt is adjudged, and the body taken, by a warrant of the court and of the law, in execution for it.

[61 b]

Scire fa.
2 Cro. 148, 136.

3

Cr. 850.

[62]

Pasch. 43 Eliz. Rot. 88. Anne Williams brings a a sci. fac. against Edmund Cuttryes and Constance his wife administratrix of Richard Lamb, to have execution of eightyeight pounds debt and damages recovered against Lamb. The defendant pleaded, that the plaintiff, by capias ad satisfaciendum, had taken Lamb himself in execution, in which execution he died, and demanded A man dies in judgment, and the plaintiff demurred. Hill. 4 Jac., it administrators was adjudged against the plaintiff in the King's Bench; chargeable. which was long after Blomfield's case either argued or published, it being argued 38, 39 Eliz. and published tertio Jacobi.

execution, his

are no further

SPICER and READ.

A false oath in a matter upon which an indictment for perjury would not lie, was punishable by fine in the Star Chamber, as a misdemeanor.

ed in Star

Chamber.

MASTER WILLIAM SPICER was sentenced in Star Cham- Star Chamber. Perjury not leber, at the suit of Thomas Read, esquire, to four hundred gal, yet punishpounds fine, for that he had taken oath before Baron Snig, according to order taken upon the commission of defective titles, that John Spicer his father was seized of a manor of some estate of inheritance, if his Majesty's title hinder not, whereas in truth the manor was then the said Read's, and so obtained the letters patents from the king. But this was punished, not as a direct and judicial perjury, but as a misdemeanor in abuse of the king's gracious commission, to the disturbance of possessions, which was instituted and intended for the quieting of possessions, in supply and imitation of the statute of 32 H. 8. cap. 9. whereby men are forbid to buy and sell titles, saving to 11 Co. 98. such as are in possession of the lands. And because Read the plaintiff had been sued and troubled by colour of his new patent, a hundred marks damages was given to him, and the sentence ordered to be published through the kingdom.

152

[62 a]

Star Chamber.

Breaking an house upon private process. V. fo. poster. 263.

and 264.

Cr.

PARKE & PERCIVAL VS. EVANS. BARRow vs. Lewellin.

PARKE & PERCIVAL VS. EVANS.

A sheriff cannot break open a dwellinghouse upon civil process; nor can he lawfully enter a house, the door of which he has procured to be opened by craft and false pretences.

Stepney, and others Percival in two hun

HUGH EVANS, an underbailiff of were fined at the suit of Parke and dred pounds a piece, for that they, upon a private process at the suit of one Brocklesbury against one Porter, who 528. Dy. 37. a. lay in the house of Parke, came and knocked at Parke's door, whereupon Parke's wife came to the door, and opened it a little to see who was there, and they presong with their swords drawn rushed in upon her whether she would or no, and bare her down, and brake open the chamber door, where Porter lay, and brake also Percival's house adjoining to it, to get instruments to break doors executing pro- Withal, and did hurt divers in the house. And my Lord 263, 264. 2 Cr. Chief Baron and myself held the first entry unlawful, for 550 Yelv. 28. the opening of the door was occasioned by them by craft, 5 Co. 91, 90. b. and then used to the violence, which they intended.

Sheriff fined

for outrage in

cess. Post.

4 Leo. 41.

92. b. 93. a.

Star Chamber.

BARROW US. LEWELLIN.

A libel by writing a reproachful letter, sealed and delivered to the party libelled, and not published to others, is punishable, as tending to a breach of the peace, but no civil action can be maintained thereon.

PAUL BARROW preferred a bill in the Star Chamber Libel by privy against Maurice Lewellin, for writing unto him a despite

letter to the

party himself.

Co. 12. 35. 5

Co. 125. Mo. 142.

643.

V. fo. 215. &c. ful and reproachful letter, which, for ought appeared to the court, was sealed and delivered to his own hands, and Mc Nal. never otherwise published. And it was resolved, that though the plaintiff in this case could not have an action of the case, because it was not published, and therefore could not be to his defamation, without his own fault of divulging it, and all actions of that kind do suppose in auditu quam plurimorum propalavit, &c. ; yet the Star Chamber for the king doth take knowledge of such cases and punish them, whereof the reason is, that such quarrellous letters tend to the breach of the peace, and to the

4 Co. 15. a.

4 Le. 240.

stirring of challenges and quarrels, and therefore the means of such evils, as well as the end, are to be prevented. (1)

(1) If words have been spoken, or a libel has been addressed to the plaintiff only, without further publication, no action is maintainable, since no temporal damage can have accrued from the defendant's act; but such a publication of a libel would be sufficient to sustain an indictment, on the ground of its tendency to produce a breach of the peace. 1 Will. Saund. 132. n. (2.) 1 Caines 581, Lyle v. Clason. 2 Esp. N. P. C. 625, Phillips v. Jansen. But in an indictment, in such case, it is necessary to allege the letter to have been sent with the intent to provoke the prosecutor to a breach of the peace. 6 East 464, Rex v. Phillips. 2 Stark. N. P. 245, Re Wegener. And in a civil action for a libel, contained in a letter wine. the defendant to the plaintiff, proof that the defendant knew that the ers sent to the plaintiff were usually opened by his clerk, is evidence go to the jury, of the defendant's intention that the letter should be re 1 by a third person, which would be a publication. 2 Stark. N. P. Delacroix v. Thevenot. Vide also post. 120 and 215.

[62 b]

MARTIN US. MARSHAL & KEY.

A party pleading a prescription, must bring himself strictly within the prescription pleaded.

Whether a court of chancery may be by prescription, quære.

The court of chancery is coeval with the kingdom, and is an integral part of the administration of public justice, emanating from the king as sovereign, and bound by no rules which it may not justly depart from in special cases.

[63]

onment. Co.

York, whether it may be by

chancery at

prescription.

2 Ro. 109.

Godb. 262.

59. Conusans,

245.

12

MARTIN brought an action of false imprisonment against False imprisMarshal and Key, who justified and said, that York was a B. court of city by prescription incorporate, by the name of mayor, aldermen and commonalty, and that they had had, time out of mind, a court called a chancery court, for all causes of equity arising within the city between citizens, to hear Co. 114. Hutt. and determine by bill and answer, and that the mayor Br. 46. 4. Inst. had always used to direct precepts for appearance and contempt of orders, and to imprison for contempts of orders, and to proceed according to the course of chancery; and then shows that another, one Marshal preferred a bill before Marshal the now defendant, being then mayor, and the aldermen, and tells the effect; whereupon the defendant being summoned, appeared, but would not answer, and thereupon an order was made against him, that he should answer or be committed; and because he did wil