A Philological Commentary, Philological commentary · Part N
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NAME.
NAme, If a grant be made to a Bastard, byCook 6 Rep. Sir Moyle … Finches case. the name of him which begot him, as is supposed; this is good, if he be known by such a Name.
The penalty or forfeiture of Players, prophanely using the Name of God, is ten pounds, the one moity to the King, the other to him that will sue the Statute, 3 Iac. 21.
NIEFE.
Niefe, some have holden, that if a Free-man take a niefe, by this marriage the Wife shall beCook on Lit l. 2. c. 11. sect. 202. free for ever; but the better opinion of our Book… is, that she shall be priviledged during the cover… ture only, unless the Lord himself marrieth hi… neife, and then some hold that she shall be free fo… …itzh natura Brev. tit. de libertate probanda.ever.
If a Free-man marry a Wife which is a neife t… another, she shall be free for ever, although the Husband die and she survive, this is in favorem libertatis.
NISI PRIUS.
Nisi prius, is a judiciall Writ, and so called becauseSmiths Commonw. of Engl. c. 25. that word is in the Writ.
NON COMPOS MENTIS.
Non compos mentis, is a man of no sound memory, many times the Latin word explaineth the true sense, and calleth him Amens, demens, furiosus, lunaticus, Cook on Lit. l. 3. c. 6.fatuus, stultus, or the like: but non compos mentis is most sure and legall.
Non compos mentis is of four sorts. Ideota which from his nativity by a perpetuall infirmity is non compos mentis. 2. He that by sickness, grief,Cook on Lit. l. 3. c. 6. sect. 405. & 4 Rep. Beverlies case. or other accident wholly looseth his memory and understanding. 3. A lunatique, that hath some time his understanding and sometime not aliquando gaudet lucidis intervallis: and therefore he is called non compos mentis so long as he hath not understanding. Lastly, He that by his own vitious act for a time depriveth himself of his memory and understanding as he that is drunken, but that kind of non compos mentis shall give no priviledge or benefit to him or his heirs; and a discent shall take away the entry of an Ideot, albeit the want of understanding was perpetual. So likewise if a man that becomes non compos mentis by accident be disseised and suffer a discent, albeit he recover his memory and understanding again, yet he shall never avoid the discent, and so it is a fortiori of one that hath lucida Id. ib.intervalla. If an Ideot make a scoffment in fee, he shall in pleading never avoid it, saying that He was an Ideot at the time of his scoffment, and so had been from his nativity. But upon an Office found for the King, the King shall avoid the seossment for the benefit of the Ideot, whose custody the Law giveth to the King: So it is of a non compos mentis, and so it is of him qui gaudet lucidis intervallis, of an estate made during his lunacy; for albeit the parties themselves cannot be deceived to disable themselves, yet twelve men upon this Office may find the truth of the matter. But if any of them alien by fine or recovery, this shall not only bind himself, but his heirs also.
Non compos mentis cannot commit Felony, because he cannot have a selonious intent. Furiosus (saith Bracton) non intelligit quid agit, & animo & ratione caret, & non multum distat à brutis. Cooks 4th Rep. Beverlies caseNeither can he commit Petty Treason, as if a woman non compos mentis kill her Husband; but in some cases non compos mentis may comm…t high treason, as if he kill, or offer to kill the King, for He is Caput & salus reipublicae, & à capite bona valetudo transit in omnes: and for this cause their persons are priviledged, that none ought to offer volence to them, but he is reus criminis laesae majestatis, and pereat unus ne pereant omnes.
Of▪ an Ideot which is so à nativitate the KingId. ib. hath custodiam, of non compos mentis He hath only provision, that is, of a naturall Ideot, the King hath his Lands to his own use; but of non compos mentis, He hath not to his own use, but shall with the profits of the Land maintain him, his Wife, Children and Houshold.
NOBILITY.
Nobility. In antient time the Senatours of Rome Cook on Lit. & 4th Rep. Nevils casewere elected a censu of their Revenues, so here in antient time, in conferring of Nobility respect was had to their Revenues, by which their dignity and nobility might be supported and maintained.
Gentry and Arms is of the nature of Gavelkind, for they descend to all the Sonnes, every Son being a Gentleman alike, which Gentry do not descend to all the Gentry alone, but to all their posterity. But yet jure primogeniturae the eldestCook on Lit shall bear a badge of his birth-right, his Fathers Arms without any difference, for he (as Littleton saith) is more worthy of blood; but all the younger Brethren shall give severall differences, & additio probat minoritatem.
The Common Law calls none noble under theLamberts Iustice of P. c. 13. degree of a Baron, and not as men of forraign Countries, with whom every man of gentle birth is accounted noble; for we daily see that both Gentlemen and Knights do serve in Parliament as Members of Commonalty; The Law hath conceived such an opinion of the peaceablePultons Iustice of peace. disposition of Noble-men, that is hath been thought enough to take one of their promises upon his honour, that He would not break the peace against a man. The person of a Baron (who is a Peer of Parliament) shall not be arrestedId ib. by his body, 1. In respect of their dignity▪ 2. Because the Law presumeth that they have sufficient Lands and Tenements wherein they may be distrained; yet in case of contempt they may be arrested by a Capias or attachment.Cooks Preface to the 2d part of his Reports Cooks 6th Rep. Countess of Rutlands case.
About 200 Gentlemen have got honour in their Famalies by the study of our Common Law.
Every Baron of the Parliament ought to have a Knight returned of his Jury, every Earl or Baron shall be amerced a 100 li. The eldest Sons of Earls or Vicounts are not Barons in Law, but in reputation. Those which of antient time were created Earls were of the blood Royal, and to this day the King in all his appellations stiles them per nomen charissimi consanguinei nostri, andCooks 9th Rep. the Countee of Salops case, the King calls them Companions and Cosens, Comites & consanguineos. therefore their bodies shall not be arrested for debt, trespass, and they shall not be put in Juries.
Those which were Earls were created for two purposes: 1. Ad consulendum regem & patriam tempore pacis. 2. Ad defendendum regem & patriam tempore …e…l…: and therefore antiquity hath given them two ensigns to resemble these two duties.
1. Their head is adorned with a Cap of honour,Cooks 7th R…p. Nevils case. and a Coroner; and their body with a Robe in resemblance of Counsell.
2. They are girt with a Sword, to shew that they should be faithfull, and loyall to defend their Prince and Countrey.
NUSANS.
Nusans. A man shall not have an action upon the Case for a Nusans done in the high-way, for it is a common Nusans; and then it is not reasonNocumentum, it comes of the French nuire, id est, nocere Cooks 5th Rep. Williams case. that a particular person should have an Action. For by th… same reason that one person should have an Action for this, every one may have an Action for it, and then he shall be punished a 100 times for one and the same cause. But if any particular person after the Nusans made hath a more particular dammage then any other, for this particular injury he shall have a particular Action upon the Case.