of the legacy hath been paid to him, or he hath renounced it; and, in cafe of payment, the executor of the supposed ⚫ will must release all title to any future claim upon fuch fuppofed legatée, who might otherwise be obliged to refund, if the will fhould be fet afide; and a release in this cafe is al< ways made, to the intent, that the legatée may have no fhadow of intereft at the time of making his depofition. SWINB. 397. The fame practice alfo prevailed at common law, in regard to witneffes who were benefitted under wills • difpofing of real estate. And if a legatée, who was a witnefs to a will, had refused either to renounce his legacy, or • to be paid a fum of money in lieu of it, he could not have ⚫ been compelled by law to diveft himself of his intereft; and ⚫ whilft his intereft continued, his teftimony was useless: and • this was determined in the case of Anftey vers. Dowfing, in • Eafter-term, 19 Geo. II.

Tit. 23. fect. 2. We must here obferve, that there is an absolute neceffity of appointing an heir in direct terms to every teftament, &c.

Here the NOTE places our own practice in a comparative view with that of Rome.

'

• The fubftantial and effential part of every testament is, ⚫ the appointment of an executor; for in England, if a man • bequeaths ever fo many legacies, and appoints no executor, fuch a difpofition may be called a codicil or a will, but not a teftament; and, therefore, he, who made fuch a difpofition, fhall be deemed to have died without a testament, and the adminiftration of his goods, with the will annexed, < fhall be committed to his widow or next of kin, as in the • cafe of an inteftate.' SWINB. part iv. fec. 2.

Tit. xxv. fect. 2. But an inheritance can neither be given nor taken away by codicil, &c.

Upon this too, the latter part of the Note, which we here tranfcribe, points out the variation of our own practice from the Roman.

In England the appointment of an executor makes the C only difference between a teftament and a codicil; and this difference is little more than nominal; for whatever may < be done by the one, may alfo be done by the other; so that a condition may be impofed, an eftate may be given, or an •heir difinherited, as well by codicil as by teftament; and even lands may be difpofed of by a codicil, if it is figned by the deceased, and attefted by three witneffes in his pre* fence, tho' the deceased left no teftament, (for a codicil, in

in its true fenfe, denotes any teftamentary schedule, and may ftand fingly, without relation to any other paper;) and even where there is a teftament, difpofing of real estate, that teftament may be altered or revoked by a codicil proi perly executed. And where perfonal eftate only is beૐ queathed, the fame degree of proof will eftablish either a teftament or a codicil; and the one may revoke or confirm the other, either wholly or in part, according to its refpective contents.

.

Sect. 3. Codicils require no folemnity.

In England (fays Mr. Harris, in the latter part of his Note on this place) there is, in this refpect, no diftinction ⚫ between a testament and a codicil; for either may be fupported by an equal number of witneffes:-two are regularly required to a teftament, and the fame number is alfo required to a codicil; but if either a teftament, or a codicil, contains a devife of a real estate, three witnesses are indifpenfably neceffary by act of parliament. Vid. 29 Car. II. 6 cap. 3.

From the THIRD BOOK.

Tit. x. Introduction. The right of fucceeding by the poffeffion of goods, was introduced by the Prætor, in amendment of the ancient law, &c.

We infert only part of Mr. Harris Note, viz.

In England, eftates in general may be divided into two forts, real and perfonal; and fucceffions to these two different kinds of eftates, are governed by different rules of law. But it is neceflary to premife, that by real estate is commonly meant, an eftate in, land in fee; i. e. defcendible from a man to his heirs for ever: and that by personal estate are meant, eftates in land determinable upon years, money in the funds, or upon mortgages, plate, jewels, &c. and that fuch perfonal eftate is generally comprehended, in technical and artificial language, under the terms goods and chattels. Now in real eftates there is no room for the bonorum poffeffio of the Roman law to take place in England; for all fuch eftates veft in and defcend inftantly to the heir, at the death of his ancestor; but in regard to goods and chattels, the office of the ordinary or ecclefiaftical judge, feems to be fimilar to that of the Roman Prætor, in granting the poffeffion of goods. For, when a man dies, who has difpofed of his perfonal eftate by teftament, the heirs or executors, appointed by that teftament, muft prove it before

an

6

an ecclefiaftical judge, who, by granting probate, gives the poffeffion of goods to the executors fecundum tabulas, according to the will, or at leaft confirms them in the poffeffion already taken. CowEL. h. 1. And, when any perfon dies inteftate, the ordinary (by virtue of 31 Edw. III. chap. xi. and 21 Hen. VIII. chap. v.) grants the poffeffion ‹ and administration of the inteftate's goods to the widow or next of kin to fuch inteftate, or to both, at his difcre* tion, &c.

From the FOURTH BOOK.

Tit. i. fect. v. The penalty of committing a manifeft theft is quadruple, whether the thief is free or bond,

c.

We shall much contract the Note upon this; yet still it will appear very useful.

.

Theft, or larciny, is, by the law of England, divided into fimple and mixed larciny. Simple larciny is divided into grand and petit. Grand larciny is committed when the thing ftolen is above the value of twelve pence; petit larciny is committed when the thing stolen is of the value of twelve pence only, or under. The nature of the offence is the fame in both, but the punishment of the first is death and lofs of goods, and the punishment of the latter is lofs of goods and whipping, but not death. But in grand larciny, the jury may find the goods ftolen of less value than twelve pence, and fo convict the prifoner of petty larciny only. HETLEY. 66. And this is often done.

Mixed larciny, or robbery, is a violent taking away of money or goods from the perfon of a man, putting him in fear, be the value of the thing taken above or under the value of one fhilling: the punishment is death, and forfeiture of all his estate. A felonious entering into a man's house in the night time, with an intent to commit felony, as to fteal fomething, whether fuch intention is executed or not, is termed burglary, from the Saxon word burgh, a house, and laron, a theft,

And if fuch offence is committed in the day-time, it is ⚫ called house-breaking. Vid. 3 Co. inft. 64. and HALE's Hift. of the Pleas of the Crown,-&c.

As to the reftitution of ftolen goods, there are three ways of obtaining it, viz. By appeal of robbery or larciny.-By the statute of 21 Hen. VIII. cap. xi.-And by the course of ' common law.

Upon an appeal, if the party appealed against was convicted, a reftitution of the goods contained in the appeal,

was

was of course made to the appellant; and hence it is, that goods omitted in an appeal, are regarded as forfeited to the • King.

But the ftatute of 21 Hen. VIII. cap. xi. introduced a C new law, for the reftitution of ftolen goods,-ordaining, "That if any perfon do rob or take away the goods of any "of the King's fubjects within the realm, and be indicted, "and found guilty by the evidence of the party fo robbed, 66 or owner of the goods, or by the evidence of any other "by their procurement, then the party robbed fhall be re"ftored to his money, or goods, and the Juftices before "whom the felon is found guilty, fhall have power to award "writs of reftitution, in like manner as though the felon was "attainted at the fuit of the party in an appeal."

• For before this ftatute there was no reftitution upon an in• dictment, but only upon an appeal.

• Reftitution by course of law, is either by taking the goods ftolen, or by action. As to retaking them; if Iteals the goods of B and B takes his goods again, with intent to favour the thief, this is punishable by fine and imprisonment; but if he takes them without fuch intent, the taking is justifiable.

The party robbed may also proceed by action, for the recovery of his money or goods, if he hath profecuted the law against the offender. For example, if A steals the goods of B, viz. 50l. in money, and is convicted, and hath his clergy upon the prosecution of B; and B afterwards brings a trover and converfion for this 50l. and, upon not guilty pleaded, the special matter is found, reftitution will be adjudged to the Plaintiff, who hath already done his duty in profecuting the law against the robber, fo that the ❝ commonwealth can receive no injury; but it hath been held, that if a man feloniously fteals goods, and before profecution by indictment, the party robbed brings an action of trover, it will not lie; for, by such a practice, felonies might be compounded. HALE'S Hift. of the Pleas of the Crown, p. 546.

Tit. iii, fect. 2. And, therefore, he is not fubject to the law, who kills a robber, or an affaffin, if there was no other way of avoiding the danger threatened.

It is now provided," fays Mr. Harris, by 24 Hen. VIII. chap. x. "that if any perfon is indicted, or appealed for the "death of any evil difpofed perfons attempting to murder,

rob, or break manfion-houses, the perfon fo indicted or

ap

appealed, and by verdict fo found, fhall not forfeit any "lands or goods, but fhall be thereof acquitted, in like man"ner as if he had been acquitted of the death of the said evil"difpofed perfons".

But this ftatute extends not to indemnify the killing a • felon, when the felony is not accompanied with force; for it fpeaks of robbery; therefore the killing a man who only ⚫ attempts to pick a pocket, is not within the act; because, there can, in fuch a case, be no neceffity to kill. HALE'S • Hift. of the Pleas of the Crown, vol. I. p. 488.

Tit. iv. fect. 1. It is also manifeft, that an injury may be committed by writing a defamatory libel, poem, or history, &c.

The NOTE here.

A libel, according to the definitions given of it in the • Law of England, is a malicious defamation, expreffed ei⚫ther in words or writing, or by figns, pictures, &c. tend-⚫ing either to blacken the memory of one who is dead, or the ⚫ reputation of one who is living. 5 Co. rep. de Libellis famofis, p. 125.

In England the punishment may be by fine, pillory, or whipping, when the offender is proceeded against by indictment, or information; but in a civil action, the punish<ment founds only in cofts and damages. But as to mere ⚫ words of defamation, they are at common law not action• able, except when they have been of real damage and injury to the perfon fpoken againft; for mere contumely is of but little confideration; and the ecclefiaftical courts may be prohibited, by the temporal courts, from proceeding in a cause of defamation, when the fuit is not wholly of a fpi• ritual nature: as for calling a man a heretic, fchifmatic, adulterer, fornicator, &c. 4 Co. rep. p. 20. PALMER Y " THORPE.'

Tit. v. fect. 3. The master of a ship, tavern, or inn, is liable to be fued for a quafi-male feazance, on account of every damage, or theft, done or committed in any of these places, by himself or his fervants, &c.

NOTE.

By the law of England an inn-keeper fhall be charged, if there is any default in him or his fervants, in keeping the goods of a guest; for an innholder is bound by law, to " keep them fafe; and it is no excuse to say, that he delivered the guest the key of the chamber door, and that the guest left it open. And altho' the guest does not deliver his goods to the innholder to keep, yet, if they are ftolen, even by ⚫ perfons unknown, the innholder is chargeable; for, in this REVIEW, July 1756. C

• cafe