THE

REPORTS

OF

THAT REVEREND AND LEARNED JUDGE, THE RIGHT HONORABLE

SIR HENRY HOBART,

KNIGHT AND BARONET, LORD CHIEF JUSTICE OF HIS MAJESTY'S COURT OF
COMMON PLEAS, AND CHANCELLOR TO BOTH THEIR HIGHNESSES
HENRY AND CHARLES, PRINCES OF WALES.

FIRST AMERICAN,

FROM THE FIFTH ENGLISH EDITION,

WITH

NOTES, AND REFERENCES TO PRIOR AND SUBSEQUENT DECISIONS,

BY JOHN M. WILLIAMS,

ONE OF THE JUSTICES OF THE COURT OF COMMON PLEAS
OF MASSACHUSETTS.

LONDON:

R. J. KENNETT, 59, GREAT QUEEN STREET.

BOSTON.

HILLIARD, GRAY, LITTLE, AND WILKINS.

1829.

BB it remembered, that on the sixth day of March, A. D. 1829, in the fiftythird year of the Independence of the United States of America, JOHN M. WILLIAMS, of the said district, has deposited in this office the title of a book, the right whereof he claims as proprietor, in the words following, to wit:

The Reports of that Reverend and Learned Judge, the Right Honorable Sir Henry Hobart, Knight and Baronet, Lord Chief Justice of his Majesty's Court of Common Pleas, and Chancellor to both their Highnesses Henry and Charles, Princes of Wales. First American, from the Fifth English Edition, with Notes, and References to Prior and Subsequent Decisions, by John M. Williams, one of the Justices of the Court of Common Pleas of Massachusetts.'

In conformity to the act of the Congress of the United States, entitled An act for the encouragement of learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies, during the times therein mentioned;' and also to an act, entitled 'An act supplementary to an act, entitled, " An act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned;" and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints.'

ADVERTISEMENT

TO THIS EDITION.

HENRY HOBART, afterwards Lord Chief Justice of the Court of Common Pleas, was brought up to the profession of the law, at Lincoln's Inn. He was made serjeant at law in Easter term, 1603. He had received his serjeant's writ in Hilary term, 45 Eliz., returnable in Easter term following, before which time the writ was abated by the demise of the queen, and a new writ was awarded, under the name of the king, returnable the same Easter term. He was knighted the same year.

On the 3d November, 1606, he was made Attorney of the Court of Wards, the king giving him, the day before, a discharge or release of the office, state and degree of a serjeant at law.

In 1607 he was made Attorney-General, in which office he was the successor of Sir Edward Coke, who was made Chief Justice of the Court of Common Pleas.

In 1611 he was made a baronet.

On the 26th October, 1614, Lord Coke having been appointed Chief Justice of the Court of King's Bench, Sir Henry Hobart succeeded him as Chief Justice of the Court of Common Pleas; and on the 2d April, 1618, (his first patent having been revoked,) another patent, during pleasure, was granted to him, to be Chief Justice of the Common Pleas and Chancellor of the Prince of Wales. He retained the office of Chief Justice until his death, which occurred at his house at Blickling in the county of Norfolk, in the vacation after Michaelmas term, 1 Car. I. anno 1625, 'being a most learned, prudent, grave and religious judge,' says Coke; and a great loss to the common weal,' says Spelman. Several eminent men have appeared among his descendants. One of them, Sir John Hobart, was, in 1728, created Lord Hobart of Blickling, and in 1746, was advanced to the title of Earl of Buckinghamshire.

The following sketch of the character of Lord Hobart is extracted from the preface to Jenkins' Centuries.

'Lord Coke and Lord Hobart have furnished surprising light to the professors of the law. They were two men of great authority and dignity; accurate eloquence, joined a superlative knowledge

men who, to the most

of the laws, being also judges of consummate integrity. The monuments of their great abilities and diligence will flourish as long as our most just and holy laws, and the splendour, majesty, and name of the kingdom of England, shall endure. I knew, marked, observed, and revered that noble pair for many years. Lord Hobart was adorned with the brightest endowments; his eloquence was excellent; his family honorable; and his understanding piercing; in him the sweetest affability was united with the most venerable gravity; and he always had equity before his eyes; which is a most valuable quality in a judge, because the law very often is laid down in general terms; for it is infinite; and it is impossible for it to take in those things which are yet to come, and which may possibly happen. The praise which I have here given Lord Hobart is a just tribute to his memory.'

His reports were printed in 1646, and in a subsequent age they were revised and corrected by Lord Chancellor Nottingham. Like the reports of Lord Coke,' says Chancellor Kent, 'they are defective in method and precision, and are replete with copious legal discussions. Lord Hobart was a very great lawyer.'

In the edition now offered to the profession, the cases relating to the law of tythes, and some other cases in which the legal doctrines and principles discussed and settled are inapplicable to the institutions of the United States, are omitted; but it is believed that every case is retained, which would be useful to the American lawyer.

The abstracts which precede the cases, and the notes and references which follow them, or are placed at the bottom of the pages, are added to this edition by the American editor. The references and notes in the margins are republished from the fifth English edition, and for them no credit or responsibility is assumed. Some of the abstracts and references in the first part of the volume were furnished by the politeness of Mr Greenleaf of Maine, who formerly contemplated publishing an edition of this work, but was compelled, by other avocations, to relinquish the design.

The editor is indebted to the kindness of a distinguished jurist, whose name he is not permitted to disclose, for the introductory part of the note to the case of Pincombe vs. Rudge. The note to the case of Waterer vs. Freeman is also the voluntary contribution of a friend.

In a few instances the editor has presumed to question or controvert the legal doctrines advanced by others; but his general object has been merely to state decisions, and cite authorities, on the various topics suggested in the course of his annotations. Perhaps he has not, at all times, confined his notes, with sufficient strictness, to subjects analogous to those discussed in the text. He hopes, however, that he has been able, by his labors, to present the volume to the American lawyer, in a form more useful and less expensive than that of a mere republication of the English edition, without

note or comment.

TO THE READER.

THE Commentaries of this most excellent and famous judge have formerly suffered the misfortune of a rude and unskilful exposer, who, aiming more at his private gain than the good of the nation, honor of the law, and renown of the author, printed them; and then, without consulting with any that either knew the laws, or were acquainted with the author's most excellent style, published them deformed, without any correction; which, when extant, seemed beauteous in their confusion. However, to wipe off the dust from this most excellent jewel, an honorable and a learned hand hath, out of a respect to the ashes of the learned author, bestowed more than a few hours in the perusing and amending the unhappy mistakes; and, as in a perspect, to behold the body of these most excellent Commentaries, hath compiled a Table worthy to be annexed to the Works of the learned HOBART. The ancients, (though barbarous, as Sir Walter Raleigh observeth,) had laws in so' high an esteem, that those whose wisdoms had singled out to be the first founders of them, were honored as Gods; and others, that made either additions or corrections, were commended to all posterity for men of no less virtue, and no less liberally beneficial to their country, than the greatest and most prosperous conquerors that ever governed them. If so sacred a reverence and glorious an esteem were given by heathens to such, what tribute shall be paid to the memory of the author and completer of these most excellent pieces? Doubtless, Divinos hymnos canere, et leges patrias, magnorumque gesta virorum graviter recensere, cannot be ill employed. However, I shall, whilst I live, have them in great esteem, and subscribe myself,

Your humble servant,

C. M.