That Hugh Ivy Clerk the Tenth of May 22 Car. 2. at Wringlington demis'd to the said William One Messuage Twenty Acres of Land Twenty Acres of Meadow Twenty Acres of Pasture with the Appurtenances in Wringlington And also the Rectory and Parish Church of Wringlington Habendum to the said William and his Assigns from the Fifth day of May aforesaid for the term of Five years next ensuing By virtue whereof he entred into the said Tenements and Rectory and was possess'd until the Defendant the said Tenth day of May in the said year entred upon him and Ejected him to his Damage of Forty pounds The Defendant by words of course pleads he is not Culpable and Issue is joyn'd and the Verdict was taken by Default of the Defendant and the Jury find specially Upon the Special Verdict the Case appears to be this John Higden the Defendant was lawfully presented admitted instituted and inducted into the Rectory of Wringlington in the County of Somerset and Dioces of Bath and Wells in February 1664. being a Benefice with Cure of Souls and of clear yearly value of Fifty pounds per Annum and in the King's Books of no more than Five pounds yearly and that the Premisses demis'd were time out of mind and yet are parcel of the said Rectory That the said John Higden being lawful Incumbent of the said Church and Rectory of Wringlington the One and thirtieth of March 1669. was lawfully presented admitted instituted and inducted into the Rectory of Elme in the said County and Dioces being a Benefice with Cure of Souls also of clear yearly value ultra reprisas of Forty pounds per Annum and of the value of Ten pounds per Annum in the King's Books and subscribed the Articles of Religion according to the Act of the Thirteenth of the Queen 13 El. cap. 12. and was lawful Incumbent of the said Rectory of Elme but after did not read the Articles of Religion within two Months after his Induction in the Church of Elme according to the Act of 13 Eliz. Primo Maii 1669. Hugh Ivy Lessor of the Plaintiff was lawfully presented admitted instituted and inducted into the Rectory of Wringlington as suppos'd void and performed all things requisite for a lawful Incumbent of the said Rectory to perform both by subscribing and reading the Articles of Religion according to the Statute of 13 Eliz. And that he entred into the said Rectory and Premisses and made the Lease to the Plaintiff as in the Declaration That the said Higden the Defendant did enter upon the Plaintiff the said Tenth of May 1669. as by Declaration The Questions spoken to at the Barr in this Case have been two 1. Whether the Rectory of Wringlington being a Benefice with Cure and of clear yearly value of Fifty pounds and but of Five pounds in the King's Books shall be estimated according to Fifty pounds per Annum to make an Avoidance within the Statute of 21 H. 8. by the Incumbents accepting another Benefice with Cure But that is no Question within this Case for be it of value or under value the Case will be the same 2. Whether not reading the Articles according to the Statute of 13 Eliz. within two Months after induction into the Church of Elme shall exclude Higden not only from the Rectory of Elme but from the Rectory of Wringlington which is no point of this Case For whether he read or not read the Articles in the Church of Elme he is excluded from any right to the Church of Wringlington For this Case depends not at all upon any Interpretation of the Statute of 21 H. 8. of Pluralities but the Case is singly this Higden being actual and lawful Incumbent of Wringlington a Benefice with Cure be it under the value of Eight pounds yearly or of the value or more accepts another Benefice with Cure the Rectory of Elme and is admitted instituted and inducted lawfully to it be it of the value of Eight pounds or more or under The Patron of Wringlington within one month after admission institution and induction of Higden the Incumbent of Wringlington to the Rectory of Elme presents Hugh Ivy the Plaintiffs Lessor to Wringlington who is admitted instituted and inducted thereto the same day and after as by the Declaration enters and makes a Lease to the Plaintiff who is Ejected by the Defendant Higden The Doubt made by the Iury is if Higdens Entry be lawful It hath been resolv'd in Holland's Case and likewise in Digby's Case in the Fourth Report and often before since the Council of Lateran Anno Dom. 1215. Under Pope Innocent 3. Digby's Case Vid. Bon. C. pur Pluralities Anderson 1. part f. 200. b.p. 236 Vid. Moore 's Rep. a large Case to the same effect viz. Holland Digby's Case That if a man have a Benefice with Cure whatever the value be and is admitted and instituted into another Benefice with Cure of what value soever having no qualification or dispensation the first Benefice is ipso facto so void that the Patron may present another to it if he will But if the Patron will not present then if under the value no lapse shall incurr until deprivation of the first Benefice and notice but if of the value of Eight pounds or above the Patron at his peril must present within Six months by 21 H. 8. As to the Second Question Whether the Defendants not reading the Articles in the Church of Elme within two months after his induction there have excluded him not only from being Incumbent of Elme but also from Wringlington The Answer is First His not reading the Articles in the Church of Elme according to the Statute of 13. is neither any cause of nor doth contribute to his not being still Incumbent of Wringlington though as his Case is he hath no right to the Rectory of Wringlington since the admission institution and induction of Hugh Ivy the Plaintiffs Lessor into it as hath already appear'd Secondly As for the Rectory of Elme although it doth not appear that the Patron of Elme hath presented as he might have done or perhaps hath any other Clerk or that any other is admitted and instituted into that Church yet Mr. Higden can be no Incumbent there nor can sue for Tithes nor any other Duty because by not reading the Articles he stands depriv'd ipso facto For clearing this certain Clauses of the Act of 13 Eliz. are to be open'd The first is Every person after the end of this Session of Parliament to be admitted to a Benefice with Cure except that within two Months after his induction he publickly read the said Articles in the same Church whereof he shall have Cure in the time of Common-prayer there with Declaration of his unfeigned assent thereto c. shall be upon every such Default ipso facto immediately depriv'd There follows relative to this Clause Provided always That no Title to conferr or present by lapse shall accrue upon any deprivation
by the party This difference is very material for if the Father could devise the Land in trust for him until his Son came to One and twenty as he can grant the Custody then as in other Cases of Leases for years the Land undoubtedly should go to the Executor or Administrator of him whom the Father named for the tuition and the trust should follow the Land as in other Cases where Lands are convey'd in trust But when he cannot ex directo devise the Land in trust then the Land follows the Custody and not the Custody the Land and the Land must go as the Custody can go and not the Custody as the Land can go Coke Litt. f. 49. a. 1 H. 7. 28. 8 H. 7. 4. As where a House or Land belongs to an Office or a Chamber to a Corody the Office or Corody being granted by Deed the House and Land follows as incident or belonging without Livery because the Office is the principal and the Land but pertaining to it A second Consideration is That by this Act no new custody is instituted but the office of Guardian as to the duty and power of the place is left the same as the Law before had prescrib'd and setled of Guardian in Soccage But the modus habendi of that office is alter'd by this Act in two Circumstances The first 1. It may be held for a longer time viz. to the Age of the Heir of One and twenty where before it was but to Fourteen 2. It may be by other persons held for before it was the next of Kindred not inheritable could have it now who the Father names shall have it So it is as if an Office grantable for life only before should be made grantable for years by Parliament or grantable before to any person should be made grantable but to some kind of persons only The Office as to the Duty of it and its essence is the same it was But the Modus habendi alter'd If therefore this new Guardian is the same in Office and Interest with the former Guardian in Soccage and varies from it only in the Modus habendi then the Ward hath the same legal Remedy against this Guardian as was against the old But if this be a new Office of Guardianship differing in its nature from the other the Heir hath no remedy against him at all in Law For though this new Guardian be enabled to have such Actions as the old might have yet this Act enables not the Heir to have like Actions or any other against him as he might against the Guardian in Soccage The Intent of this Statute is to priviledge the Father against common right to appoint the Guardian of his Heir and the time of his Wardship under One and twenty But leaves the Heirs of all other Ancestors Wards in Soccage as before Therefore I hold 1. That such a Special Guardian cannot transferr the Custody of the Ward by Deed or will to any other 2. That he hath no different Interest from a Guardian in Soccage but for the time of the Wardship 1. When an Act of Parliament alteâ—s the Common Law the meaning shall not be strained beyond the words except in Cases of publick Vtility when the end of the Act appears to be larger than the enacting words But by the words the Father only can appoint the Guardian therefore the Guardian so appointed cannot appoint another Guardian 2. The Mother hath the same concern for her Heir as the Father hath But she cannot by the Act name a Guardian therefore much less can the Guardian named by the Father 3. The Father cannot by the Act give the custody to a Papist but if it may be transferr'd over by him whom the Father names or by Act in Law go to his Executor or Administrator it may come to a Papist against the meaning of the Act. 4. Offices or Acts of personal Trust cannot be assign'd for the Trust is not personal which any man may have Dyer 2 3 Eliz. f. 189. b. 5. At the Common Law none could have the Custody and Marriage of a mans Son and Heir apparent from the Father yet the Father could not grant or sell the Custody and Marriage of his Heir apparent though the marriage was to his own benefit as was resolved by the greater number of the Iudges in the Lord Bray's Case who by Indenture had sold for Eight hundred pounds the Custody and Marriage of his Son and Heir apparent in the time of Henry the Eighth to the Lord Audley Chancellor of England Lord Cromwell Lord Privy Seal Sir William Paulett Treasurer of the Houshold The Marquis of Winchester Lord Treasurer Dyer supra f. 190. b. pl. 19. The Reason given is That the Father hath no Interest to be granted or sold to a Stranger in his eldest Son but it is inseparably annex'd to the person of the Father Two Judges differ'd because an Action of Trespass would lye for taking away a mans Heir apparent and marrying him whence they conclude he might be granted as a Chattel 11 H. 4. f. 23. a. Fitz. N. Br. Tresp f. 90. b. Lett. G. f. 89. Lett. O. But an Action of Trespass will lye for taking away ones Servant For taking away a Monk where he was cloyster'd in Castigationem Pro Uxore abducta cum bonis Viri yet none of these are assignable West 1. c. 48. By the Statute of Westminster the First If the Guardian in Chivalry made a Feoffment of the Wards Lands in his Custody during his Minority the Heir might forthwith have a Writ of Novel Disseisin against the Guardian and Tenant and the Land recover'd should be deliver'd to the next of kinn to the Heir to be kept and accompted for to him at his full Age. This was neither Guardian in Soccage nor Chivalry Coke 2. Inst f. 260. b. By 4 5 P.M. c. 8. No woman child under 16. can be taken against his will whom the Father hath made Guardian by Deed or Will yet this is no Lease of the Custody till 16. nor is it assignable Ratcliffs C. 3. Rep. Shoplands C. 3 Jac. Cr. f. 99. but a special Guardian appointed by the Statute and such a Guardian could not assign over nor should it go to his Executors by the Express Book This Case likewise and common Experience proves That Guardian in Soccage cannot assign nor shall the Custody go to his Executors though some ancient Books make some doubt therein For expresly by the Statute of 52 H. 3. the next of kin is to answer and be accomptable to the Heir in Soccage as this special Guardian is here by Westminster the First These several sorts of Guardians trusted for the Heir could neither assign their Custody nor did it go to their Executors because the Trust was personal and they had no Interest for themselves The Trust is as personal in this new Guardian nor hath he any Interest in it for himself and
Robert the son had Issue Margaret Isabel Jane Antenatas living the First of Octob. 14 Car. 1. and now have Issue at Kingston John naturalized 9. Maii 1 Jac. John the third son by the name of Sir John Ramsey was naturalized by Act of Parliament holden at Westminster May the Ninth 1. Jac. and after made Earl of Holdernes George Ramsey the fourth Son George naturalized 7 Jac. was naturalized in the fourth Session of Parliament held at Westminster begun by Prorogation 19 Febr. 17 Jac. and after had Issue John primogenitum filium Quodque idem Johannes had Issue John the now Defendant primogenitum suum filium but finds not where either of these were born nor the death of George Nicholas the second Son had Issue Patrick his only Son Nicholas had Issue Patrick a Native 15 Jac. born at Kingston after the Union 1 Maii 1618. about 15 Jac. John the third Son Earl of Holdernes seiz'd of the Mannors Rectory and Premisses in the Declaration mentioned with other the Mannors of Zouch and Taylboys John covenanted to levy a Fine de Premissis 1 Jul. 22 Jac. and divers other Lands in the County of Lincoln in Fee by Indenture Tripartite between him on the first part Sir William Cockayne and Martha his Daughter of the second part c. Dated the First of July 22 Jac. Covenanted to levy a Fine before the Feast of St. Andrews next ensuing to Sir William of all his said Lands To the use of himself for life then to the use of Martha his intended Wife for life with Remainder to the Heirs Males of his body begotten on her Remainder to such his Heirs Females Remainder to his right Heirs The Marriage was solemnized the Seven and twentieth of Sept. 22 Jac. John married 29 Sept. 22 Jac. He levied the Fine Octab. Michael 22 Jac. John died 1 Car. 1. Jan. 24. The Fine accordingly levied in the Common Pleas Octabis Michaelis 22 Jac. of all the Lands and Premisses among other in the Declaration mentioned The Earl so seiz'd as aforesaid with the Remainder over at Kingston aforesaid died the Four and twentieth of January 1 Car. 1. His Countess entred into the Premisses in the Declaration mentioned and receiv'd the Profits during her life After the Earls death a Commission issued Inquisition after his death capt 29 Febr. 7 Car. 1. and an Inquisition taken at Southwark in Surrey the Nine and twentieth of February 7 Car. 1. By this Inquisition it is found the Earl died seiz'd of the Mannor of Zouch and Taylboys and divers Land thereto belonging in Com. Lincoln and of the Mannor of Westdeerham and other Lands in Com. Norfolk and of the Rectory of Kingston and of the Advowson of the Vicaridge of Kingston in Com. Surrey but no other the Lands in the Declaration are found in that Office And then the Tenures of those Mannors are found and that the Earl died without Heir But it finds that the Earl so seiz'd levied a Fine of the Premisses to Sir William Cockayne per nomina Maneriorum de Zouches Taylboys Rectoriae de Kingston cum omnibus Decimis dictae Rectoriae pertinentibus and finds the uses ut supra and so finds his dying without Heir c. It finds the Fine levied in terminis Michaelis 22 Jac. but not in Octabis Michaelis as the Special Verdict finds but between the same persons The Irish Act to naturalize all Scots 4 Jul. 10 Car. 1. The general Act of Naturalizing the Scottish Antenati in the Kingdome of Ireland was made in the Parliament there begun at the Castle of Dublin the Fourth of July 10 Car. 1. Nicholas died 1 Sept. 10 Car. 1. Nicholas died the First of September 10 Car. 1. Leaving Issue Patrick Murrey's Pat. 25 Octob. 10 Car. 1. King Charles the First by his Letters Patents dated the Five and twentieth of October the Tenth of his Reign under the Great Seal granted to William Murrey his Heirs and Assigns in Fee-farm All the said Mannors Lands and Rectory mentioned in the Declaration with the Reversion depending upon any life lives or years Patrick conveys to the Earl of Elkin 16 Febr. 1651. Patrick and Elizabeth his wife by Indenture dated the Sixteenth of February 1651. Covenant with the Earl of Elkin and Sir Edward Sydenham in consideration of Eleven hundred pounds and bargained and sold the Premisses in the Declaration to them and their Heirs and covenanted at the Earls charge to levy a Fine with proclamation Patrick Uxor levy a Fine à die Paschae in fifteen days to the use of the Earl and his Heirs of the Premisses before the end of Easter Term next and accordingly did levy it with warranty against them and the Heirs of Patrick by force whereof and of the Statute of Uses the said Earl and Sydenham were seiz'd c. The Earl and Sydenham convey to the Countess Dowager 10 Mar. 1652. The Earl of Elkin and Sydenham by Indenture of Lease dated the Tenth of March 1652. and by Deed of Release and Confirmation conveys the Premisses to Amabel Dowager of Kent and the Lady Jane Hart viz. the Eleventh of March 1652. by way of Bargain and Sale to them and their Heirs who entred by the Lease and were in quiet possession at the time of the Release The Dowager conveys to Pullayne and Neale The Dowager and Lady Hart by like Conveyance of Lease and Release bargained and sold to Pullayne and Simon Neale dated the First and Second of November 1655. who entred and were in possession as aforesaid John Ramsey the now Defendant entred in 15 Car. 2. and kept possession Dat. 25 Sept. 1656. Pullayne and Neale convey to Talmuch and Weld by Bargain and Sale 20 Jan. 16 Car. 2. John Pullayne and Symon Neale by Deed of Bargain and Sale duly inrolled convey'd the Premisses to Lionel Talmuch and Humphrey _____ their Heirs and Assigns Lionel and Humphrey demis'd to Philip _____ the Plaintiff having entred and being in possession by Indenture dated the Twentieth of January 16 Car. 2. John then in possession and John re-entred upon the Plaintiff and Ejected him The Questions upon this Record will be three 1. Whether a Naturalization in Ireland will naturalize the person in England If it will not all other Questions are out of the Case 2. If it will then whether by that Act for naturalizing the Antenati of Scotland any his brothers had title to inherit the Earl of Holdernes in the lands in question By reason of the Clause in the Act of Naturalization That nothing therein contained should extend to avoid any Estate or Interest in any Lands or Hereditaments which have already been found and accrewed to his Majesty or to King James for want of naturalization of any such person and which shall and doth appear by Office already found and return'd and remaining of Record or by any other matter of Record An Office was found as appears
as the Kings Bench 157 Commendam 1. Capere in Commendam is good where the Patron is not prejudiced 25 2. Retinere in Commendam is good where consented to by him that was to present to the Avoidance 25 3. Commendam Retinere may be for years 24 25 4. How many Benefices a Bishop may retain by a Dispensation 25 5. Although the King confirms it yet the Incumbent derives no Estate from the King but only by the Patrons presentment 26 Common See Title Statute 1. 1. No Common of Pasture can be claimed by Custome within the Mannor that may not be prescribed for out of the Mannor 254 2. Inhabitants not Incorporated cannot prescribe in a Common 254 3. How Copyholders must prescribe for Common ibid. 4. Where the Tenant may prescribe to have sola separalis Communia and where not 255 256 5. One or more Tenants may have solam separalem Communiam from other Commoners but not from the Lord 256 6. Where the Commoner claims habere solam separalem Pasturam how and upon what Action Whether the Lord shall be excluded or no the matter will come in question 253 7. Where a Commoner prescribes for Common for Cattel levant and couchant Antiquo Messuagio without any Land the prescription is naught because Cattel cannot be levant and couchant to a Common intent upon a Messuage only 252 253 8. Where the Lord may approve against the Commoners being an Exposition of the Statute of Merton 256 257 Common Pleas Court 1. The Common Pleas or Exchequer may upon the Return of a Habeas Corpus d scharge a Prisoner if it appear the Imprisonment is against Law 157 2. If the Imprisonment is just or doubtful and uncertain the Common Pleas cannot bayl him but must remand him 157 3. A Prohibition for incroaching of Jurisdiction lies in the Common Pleas 157 Condition 1. The difference between a Condition and Limitation 32 2. A Devise to the Son and Heir and if he did not pay all the Legacies that then it shall remain to the Legatees In default of payment this shall vest in the Legatees by Executory Devise 271 Condition of an Obligation 1. A Bond is entred into with Condition for quiet Enjoyment the Defendant pleads that the Plaintiff entred and might have quietly enjoyed the Plaintiff replyed That he was outed by J. S. the Replication is void because he did not say that J. S. had a good Title 121 122 Confirmation 1. A Confirmation cannot be for a time 27 2. Where it shall enlarge an Estate 44 45 3. The Kings Confirmation of a Commendam transfers no Right to the Incumbent 26 Constable See Title Officer  Construction of Law See Title Law 1. It is both equitable and of publick convenience that the Law should assist men to recover their dues when detained from them 38 2. It is an absurdity to say That a man hath a Right to a thing for which the Law gives him no remedy 47 138 Copyholder 1. They cannot prescribe against the Lord to have solam separalem Pasturam 254 255 2. How the Copyholders must prescribe for Common 254 Corporation 1. The King may dispense with a Corporation for any thing which in its nature may be dispensed with 347 348 2. The King may dispense with a Corporation as to penal Laws 349 350 3. What Licenses made by the King to Corporations are good and several instances of them 348 349 350 4. What Licenses to a Corporation are not good 351 352 Costs See Damages 1. Upon a Nonsuit or Discontinuance upon an Action brought against Officers they shall have their double Costs by the Statute of the One and twentieth of King James 117 Covenant 1. All Covenants between the Lessor and Lessee are Covenants in Law or express Covenants 118 2. An express Covenant restrains the general Covenant in Law 126 3. Where the Covenant is to enjoy against one or more particular men and where against all men 127 4. By a Covenant in Law the Lessee is to enjoy his Term against the lawful entry or interruption of any man but not against tortious Entries because the Lessee hath his proper remedy against the wrong-doers 118 119 5. If a stranger who hath no right outs the Lessee he shall not bring Covenant against the Lessor because he hath remedy by Action against the stranger But if he enter by elder Title then he shall have Covenant because he hath no other remedy 119 120 6. Though the Covenant is that the Lessee shall enjoy against all persons yet he shall not have Covenant against the Lessor unless he be legally outed 119 120 121 123 7. The Law shall never adjudge that a man covenants against the wrongful acts of strangers except the words are full and express 121 8. When the Covenant is to enjoy against all men the Covenant is not expresly to enjoy against tortious acts neither will the Law so interpret it 123 125 Coverture See Baron and Feme  County Palatine See Title Franchise  Court or Courts See Common Pleas Kings Bench. 1. The Court of Kings Bench cannot pretend to the only discharging of prisoners upon Habeas Corpus unless in case of priviledge but the Chancery may do it without question 157 2. Prohibitions for incroaching Jurisdiction may issue as well out of the Common Pleas as Kings Bench ibid. 209 3. The Judges of the Temporal Courts have full conizance of what Marriages are within the Levitical Degrees and what not 207 4. They have likewise conizance of what Marriages are incestuous and what not and may prohibit the Ecclesiastical Courts from questioning such Marriages 207 5. The Secular Judges are most conizant of Acts of Parliament 213 6. If a Court give Judgment judicially another Court is not bound to give the like Judgment unless it think that Judgment first given to be according to Law 383 7. The Court of the Sessions in London doth not differ in its essence nature and power from another Sessions in the Country but all differ in their accidents which make no alteration in their actings in the eye of the Law 140 Custome See Prescription 1. How things become strangely unnatural to man by custome only 224 Customes for Merchandize See Title Statutes 2 25. 1. The Customes called Custumae Antiquae for Wooll Wooll-fells and Leather were granted by Parliament to King Edward the First in the third year of his Reign and was no Duty at the Common Law 161 162 163 2. The several properties that Wines must have which are lyable to pay Tunnage and Poundage by the Act of 12 Car. 2. 165 3. No goods are to pay Custome but those which are brought in to Merchandize not such as come in by accident as in case of wreck 165 166 171 172 4. By the common Law all wrecks were the Kings and therefore not lyable to pay Custome because they were his own 164 Damages See Costs 1. In an Action upon the Case the whole Debt is
Heirs is expresly forbidden by the Statute de Donis 374 Right See Title Action 1. Where there can be presumed to be no remedy there is no right 38 Seisin 1. THe profits of all and every part of the Land are the Esplees of the Land and prove the Seisin of the whole Land 255 2. In an Entry sur Disseisin or other Action where Esplees are to be alledged the profits of a Mine will not serve 254 Spoliation 1. The Writ of Spoliation lyes for one Incumbent against the other where the Patrons right comes in question 24 Statute See Recognizance 1. A Recognizance taken before the Chief Justice of the Common Pleas in the nature of a Statute Staple 102 Statutes in general 1. Where an Act of Parliament is dubious long usage is a just medium to expound it by and the meaning of things spoken and written must be as hath been constantly received by common acceptation 169 2. But where usage is against the obvious meaning of an Act by the vulgar and common acceptation of words then it is rather an oppression then exposition of the Act 170 3. When an Act of Parliament alters the Common Law the meaning shall not be strained beyond the words except in cases of publick utility when the end of the Act appears to be larger than the words themselves 179 4. Secular Judges are most conizant in Acts of Parliament 213 5. When the words of a Statute extend not to an inconvenience rarely happening but doth to those which often happen it is good reason not to strain the words further than they will reach by saying it is casus omissus and that the Law intended quae frequentius accidunt 373 6. But where the words of a Law do extend to an inconvenience seldom happening there it shall extend to it as well as if it happens more frequently 373 7. An Act of Parliament which generally prohibits a thing upon a penalty which is popular or only given to the King may be inconvenient to diverse particular persons in respect of person place time c. For this cause the Law hath given power to the King to dispense with particular persons 347 8. Whatsoever is declared by an Act of Parliament to be against Law we must admit it so for by a Law viz. by Act of Parliament it is so declared 327 9. Where the Kings Grant is void in its creation a saving of that Grant in an Act of Parliament shall not aid it 332 10. How an Act of Parliament may be proved there hath been such an Act where the Roll is lost 162 163 404 405 407 11. An Act of Parliament in Ireland cannot effect a thing which could not be done without an Act of Parliament in England 289 12. Distinct Kingdoms cannot be united but by mutual Acts of Parliament 300 13. A repealed Act of Parliament is of no more effect than if it had never been made 325 Statutes 1. Merton cap. 4. The Statute of Merton which gave the owner of the Soyl power to approve Common did not consider whether the Lord was equally bound to pasture with his Tenants or not but it considered that the Lord should approve his own Ground so as the Commoners had sufficient 256 257 2. The inconveniences before the making of the Statute and the several remedies that were provided by it 257 1. Westm 1. 3 E. 1. The Antiquae Custumae upon Woolls Woolfells and Leather were granted to E. 1. by Parliament and therefore they are not by the Common Law 162 163 1. Westm 1. cap. 38. Attaints in Pleas real were granted by this Statute 146 1. Westm 2. cap. 24. The Quare Ejecit infra terminum is given by this Statute for the recovery of the Term against the Feoffee for an Ejectment lay not against him he coming to the Land by Feoffment 127 Statute of Glocester 1. Restrained warranties from binding as at Common Law 366 377 2. Before this Statute all Warranties which descended to the Heirs of the Warrantors were barrs to them except they were Warranties which commenced by Disseisin 366 3. The reason why the warranty of Tenant in Tayl with assets binds the right of the Estate Tayl is in no respect from the Statute de Donis but by the equity of the Statute of Glocester by which the Warranty of the Tenant per Curtesie barrs not the Heir for his Mothers Land if his Father leaves not assets to descend 365 4. If this Statute had not been made the lineal Warranty of Tenant in Tayl had no more bound the right of the Estate Tayl by the Statute de Donis with assets descending than it doth without assets ibid. Westm 2. De Donis 1. All Issues in Tayl within this Statute are to claim by the Writ purposely formed there for them which is a Formedon in the Descender 369 2. it intended not to restrain the alienation of any Estates but such as were Fee-simples at the Common Law 370 3. This Statute intended not to preserve the Estate for the Issue or the Reversion for the Donor absolutely against all Warranties but against the alienation with or without Warranty of the Donee and Tenant in Tayl only 369 4. Therefore if Tenant for life alien with Warranty which descended upon the Reversioner that was not restrained by the Statute but left at the Common Law 370 5. By this Statute the Warranty of Tenant in Tayl will not barr the Donor or his Heir of the Reversion ibid. 6. The Donee in Tayl is hereby expresly restrained from all power of alienation whereby the Lands entayled may not revert to the Donor for want of issue in Tayl 371 7. See a further Exposition upon this Statute from fol. 371 to 393 1. Wales Statute de Rutland 12 E. 1. after the Conquest of it by Edward the First was annext to England Jure proprietatis and received Laws from England as Ireland did Vide postea 9 17 18. and had a Chancery of their own and was not bound by the Law of England until 27 H. 8. 300 301 399 400 2. Although Wales became of the Dominion of England from that time yet the Courts of England had nothing to do with the Administration of Justice there in other manner than now they have with the Barbadoes Jersey c. all which are of the Dominions of England and may be bound by Laws made respectively for them by an English Parliament 400 See for a further Exposition 401 402 c. Acton Burnell 13 E. 1. 1. Recognizances for Debt were taken before this Statute by the Chancellor two Chief Justices and Justices Itinerants neither are they hindred by this Statute from taking them as they did before 102 28 E. 3. c. 2. concerning Wales 1. Tryals and Writs in England for Lands in Wales were only for Lordships Marchers and not for Lands within the Principality of Wales Vide ante 7. pòstea 17 18. for the Lordships and Marchers were of the Dominion of England and held of
be admitted sufficient causes to remand persons to prison To those Objections made by the Prisoners Council against the Retorn as too general 1. It hath been said That Institutum est quod non inquiratur de discretione Judicis 2. That the Court of Sessions in London is not to be look'd on as an inferiour Court having all the Judges Commissioners that the Court having heard the Evidence it must be credited that the Evidence given to the Iury of the Fact was clear and not to be doubted As for any such Institution pretended I know no such nor believe any such as it was applyed to the present cause but taking it in another and in the true sense I admit it for truth that is when the King hath constituted any man a Iudge under him his ability parts fitness for his place are not to be reflected on censured defamed or vilified by any other person being allowed and stampt with the Kings Approbation to whom only it belongs to judge of the fitness of his Ministers And such scandalous Assertions or Inquiries upon the Judges of both Benches is forbidden by the Statute of Scandalum Magnatum 2 R. 2. c. 5. Nor must we upon supposition only 2 R. 2. c. 5. either admit Judges deficient in their Office for so they should never do any thing right nor on the other side must we admit them unerring in their places for so they should never do any thing wrong And in that sense the saying concerns not the present Case But if any man thinks that a person concern'd in Interest by the Iudgment Action or Authority exercis'd upon his person or fortunes by a Judge must submit in all or any of these to the implyed discretion and unerringness of his Judge without seeking such redress as the Law allows him it is a perswasion against common Reason the received Law and usage both of this Kingdome and almost all others If a Court Inferiour or Superiour hath given a false or erroneous Iudgment is any thing more frequent than to reverse such Iudgments by Writs of False Judgment of Error or Appeals according to the course of the Kingdome If they have given corrupt and dishonest Iudgments they have in all Ages been complained of to the King in the Starr-Chamber or to the Parliament Andrew Horne in his Mirror of Justices Hornes Mirror f. 296. mentions many Judges punisht by King Alfred before the Conquest for corrupt Iudgments and their particular Names and Offences which could not be had but from the Records of those times Our Stories mention many punisht in the time of Edward the First our Parliament Rolls of Edward the Third's time of Richard the Second's Time for the pernicious Resolutions given at Nottingham Castle afford Examples of this kind In latter times the Parliament Journals of 18 and 21 Jac. the Iudgment of the Ship-mony in the time of Charles the First question'd and the particular Judges impeacht These Instances are obvious and therefore I but mention them In cases of retorns too general upon Writs of Habeas Corpus of many I could urge I will instance in two only One Astwick brought by Habeas Corpus to the Kings Bench 9 El. Moore f. 837. was retorn'd to be committed per Mandatum Nicholai Bacon Militis domini Custodis magni Sigilli Angliae virtute cujusdam Contemptus in Curia Cancellar facti and was presently bail'd 13 Jac. Moore f. 839. One Apsley Prisoner in the Fleet upon a Habeas Corpus was retorn'd to be committed per considerationem Curiae Cancellar pro contemptu eidem Curiae illato and upon this retorn set at liberty In both these Cases no inquiry was made or consideration had whether the Contempts were to the Law Court or equitable Court of Chancery either was alike to the Judges lest any man should think a difference might arise thence The reason of discharging the Prisoners upon those retorns was the generality of them being for Contempts to the Court but no particular of the Contempt exprest whereby the Kings Bench could judge whether it were a cause for commitment or not And was it not as supposeable and as much to be credited That the Lord Keeper and Court of Chancery did well understand what was a Contempt deserving commitment as it is now to be credited that the Court of Sessions did understand perfectly what was full and manifest Evidence against the persons indicted at the Sessions and therefore it needed not to be reveal'd to us upon the retorn Hence it is apparent That the Commitment and Retorn pursuing it being in it self too general and uncertain we ought not implicitly to think the Commitment was re vera for cause particular and sufficient enough because it was the Act of the Court of Sessions And as to the other part That the Court of Sessions in London is not to be resembled to other inferiour Courts of Oyer and Terminer because all the Judges are commission'd here which is true but few are there at the same time and as I have heard when this Tryal was none of them were present However persons of great quality are in the Commissions of Oyer and Terminer through the Shires of the Kingdom and always some of the Judges nor doth one Commission of Oyer and Terminer differ in its Essence Nature and Power from another if they be general Commissions but all differ in the Accidents of the Commissioners which makes no alteration in their actings in the eye of Law Another fault in the retorn is That the Jurors are not said to have acquitted the persons indicted against full and manifest Evidence corruptly and knowing the said Evidence to be full and manifest against the persons indicted for how manifest soever the Evidence was if it were not manifest to them and that they believ'd it such it was not a finable fault nor deserving imprisonment upon which difference the Law of punishing Jurors for false Verdicts principally depends A passage in Bracton is remarkable to this purpose concerning Attainting Inquests Committit Jurator perjurium propter falsum Sacramentum Bracton l. 4. c. 4. f. 288. b. ut si ex certa scientia aliter Juraverit quam res in veritate se habuerit si autem Sacramentum fatuum fuerit licet falsum tamen non committit perjurium licet re vera res aliter se habeat quam juraverat quia jurat secundum conscientiam eo quod non vadit contra mentem Sunt quidam qui verum dicunt mentiendo sed se pejerant quia contra mentem vadunt The same words and upon the same occasion Fleta l. 5. c. 22 f. 336. n. 9. are in effect in Fleta Committit enim Jurator perjurium quandoque propter falsum Sacramentum ut si ex certa scientia aliter juraverit quam res in veritate se habuerit secus enim propter factum quamvis falsum and lest any should think that these passages are to be
of Twelfth of the King c. 4. And that if any Merchandise in kind subject to the Duties by that Act proving wreck cast on shoar may be charg'd with the Duty every Merchandise within the Act proving wreck will be charg'd with it and if any wreck'd Goods be free all wreck'd Goods are free for the Act makes no difference in the kinds or species of the Merchandise I shall therefore recite some Clauses of the Act. 12 Car. 2. c. 4 The first is That there is given to the King of every Tun of Wine of the growth of France or of any the Dominions of the French King that shall come into the Port of London and the Members thereof by way of Merchandise by your natural born Subjects the Sum of Four pounds and Ten shillings of currant English mony and so after that rate And by Strangers and Aliens Six pounds of like mony And of every Tun of like Wines which shall be brought into all and every the other Ports and Places of this Kingdom and the Dominions thereof by way of Merchandise by your natural born Subjects the Sum of Three pounds and by Aliens Four pounds and Ten shillings From those words I observe That Wines liable to pay Tunnage by the Act must have these properties 1. They must be Wines which shall come or be brought into the Ports and Places of the Kingdom 2. They must come or be brought into such Ports or Places as Merchandise that is for sale and to that end for no other conception can be of Goods brought as Merchandise 3. They must come and be brought as Merchandise and for sale by the Kings natural born Subjects or by Strangers and Aliens as distinguisht from the natural Subjects 4. The Duty payable to the King is to be measur'd by the quality of him that imports the Commodity that is if the Importer be a natural Subject he pays less to the King and if an Alien more 5. All those Wines charg'd with the Duty by the Act so to come or be brought into the parts or places of the Kingdom are to be Forraign As of the growth of France the Levant Spain Portugal Rhenish Wines or of the growth of Germany 1. Whence it follows That Wines of Forraign growth and which by their kind are to pay Duty if they shall come or be brought into the parts or places of the Kingdom neither by the Kings natural Subjects nor by Aliens they are not chargeable with the Duties of this Act. 2. If they be not brought into the Ports and Places of the Kingdom as Merchandise viz. for sale they are not chargeable with the Duty But Wines or other Goods coming or brought into the Realm as wreck are neither brought into the Kingdom by any the Kings natural Subjects nor by any Strangers but by the Wind and Sea for such Goods want a Proprietor until the Law appoints one 3. Wreck'd Goods are not brought into the Kingdom being cast on shoar as Merchandise viz. for sale but are as all other the Native Goods of the Kingdom indifferent in themselves for sale or other use at the pleasure of the Proprietor 4. All Goods Forraign or Domestique are in their nature capable to be Merchandise that is to be sold but it follows not thence That wheresoever they are brought into the Kingdom they are brought as Merchandise and to be sold or should pay Custome for they are transfer'd from place to place more for other uses than for sale Nor are Goods which are brought to the Markets of the Kingdom to the end to be sold therefore to pay Custome for so all the Goods of the Kingdom would be customable but they must be Goods brought ab extra within the intention of the Act or for Exportation to be carried out of the Kingdom 5. All Goods charg'd with the Duties of the Act must be proprieted by a Merchant natural born or Merchant Alien and the greater or less Duty is to be paid as the Proprietor is an Alien or Native Merchant for so are the words of the Act in the Clause for Poundage of all manner of Goods and Merchandise of every Merchant natural born Subject Denizen and Alien to be brought into the Realm of the value of every Twenty shillings of the same Goods according to the Book of Rates But wreck'd Goods are not the Goods of any Merchant natural born Alien or Denizen whereby the Duty payable should be either demanded distinguisht or paid Therefore a Duty impossible to be known can be no Duty for civilly what cannot be known to be is as that which is not And it is a poor shift to say The Lord of the Mannor who hath the wreck is Merchant Proprietor For if so I ask Is he an Alien Merchant Proprietor or a Native If he be a natural Subject as he must be having his Mannor he cannot be an Alien and consequently the King can have no Alien Duty of wreck'd Goods but Goods intended by the Act to be charg'd with the Duty might be indifferently the Goods of Aliens or Natives But to clear this more put the Case The Act had only charg'd Merchandise imported by Aliens and not by Natives with the Duty Then the King could have had no Duty from wreck'd Goods at all for they could not be the Goods of an Alien Merchant Nor is wreck brought into the Mannor by the Lord more than a Waif or Estray is which if brought thither by him is no Waif or Estray Besides it is clear The Lord of a Mannor is no more a Merchant Native or Alien by reason of the property he hath in wreck Goods than he is a Merchant Native or Alien by the property he hath in his Horses or Cows for his property in a wreck is not qua Merchant of any kind but qua Lord of his Mannor and every Proprietor of Goods by what Title soever is as much Merchant as he 6. All Goods subject to the Duty of Tunnage and Poundage may be forfeited by the Disobedience and Mis-behaviour of the Merchant Proprietor or those trusted by him by the Act The words are If any Merchandise whereof the Subsidies aforesaid shall be due shall at any time be brought from the parts beyond the Sea into any Port Place or Creek of this Realm by way of Merchandise and unshipped to be laid on Land the Duties due for the same not paid nor lawfully tender'd nor agreed for according to the true meaning of this Act then the same Goods and Merchandises shall be forfeit to your Majesty 1. But wreck'd Goods cannot be imported into any Creek or Place of the Realm by way of Merchandise and unshipped to be laid on Land for if so imported and unshipped to be laid on Land it is no wreck and therefore are not Goods forfeitable by the Mis-behaviour of any within the Act and consequently not Goods intended to be charged with the Duties by the Act. 2. By this Clause the Owner or
determine Whether the marriages mentioned within Leviticus 18. be only prohibited or marriages within the degrees there mentioned The Talmudists hold the first the Karaits the second strongly who in most concurr with our Parochial Table 5. This marriage not prohibited by the Canons 1 Jac. Can. 99. nor contained in the Parochial Table 6. Marriages between the Children and Parents in the ascending line intermediately prohibited and for what Reasons 7. How the words Gods Law except in the Act of 32 H. 8. and the words or otherwise by Holy Scripture in the Act of 28 H. 8. c. 16. are to be intended 8. The Defendant doth not Article That the Vncle Bartholomew Abbot did carnally know Jane his wife and then the marriage is not against Gods Law by 28 H. 8. c. 7 The mischief by the Act of 32 H. 8. was That the Bishop of Rome had always troubled the meer Iurisdiction and Regal Power of the Realm of England and unquieted the Subject by making that unlawful which by Gods word is lawful both in marriages and other things Therefore it is thought convenient for this time that two things be with diligence provided for The first was against dissolution of marriages consummate with bodily knowledge upon pretence of Pre-contracts The other by reason of other prohibitions to marry than Gods Law admitteth As in Kindred or Affinity between Cosen Germans and so to the fourth and fifth Degree which else were lawful and be not prohibited by Gods Law Again that freedom in them was given by Gods Law To remedy these two mischiefs All marriages consummate with bodily knowledge between lawful persons and all persons are declared to be lawful to marry which be not prohibited by Gods Law are made lawful by Authority of Parliament notwithstanding any Prae-contract c. But this part of the Clause to make good marriages notwithstanding pre-contracts is repeal'd 2 E. 6. c. 23. 1 El. c. 1. The other Clause remains which declares all persons lawful to marry who are not prohibited by Gods Law but is of no use to remedy the second mischief For if the Pope shall expound what persons of Consanguinity or Affinity are prohibited by Gods Law to marry he will expound Gods Law as the Canons and Popes formerly did That by the Word of God no man is to uncover the nakedness of the Kindred of his Flesh and therefore marriage is prohibited as farr as there are names of Kindred and memory which is the reason of the Old Canon Law to prohibit to the Seventh Degree for further they had not names of Kindred And if it would have remedied the Inconvenience to say in the Act That all marriages were lawful not prohibited by Gods Law and leave the Pope then to resolve what was prohibited by Gods Law it was to no purpose to have added more words to the Act but to have ended ther and the inconvenience of prohibiting marriages for Consanguinity or Affinity when God did not prohibit had still remain'd But the Act goes on And that no Prohibition or Reservation Gods Law except should impeach any marriage for Consanguinity or Affinity for so it must be understood without the Levitical Degrees for that was the second thing specially to be provided for as the Act saith Not that no marriage should be impeached without the Levitical Degrees which the Act intended not at all nor was it the thing to be provided for but not to be impeached for Kindred or Affinity without the Levitical Degrees as in Cosen Germans and so forth For who will say That by those words no marriage shall be impeached without the Levitical Degrees the Act intended that no marriage for natural Impotency for plurality of Husbands or Wives for Adultery and the like should not be impeached though it were out of the Levitical Degrees For the Act had no aspect upon such marriages but to hinder impeaching marriages for Consanguinity or Affinity without the Levitical Degrees which was the second thing by the Act to be at that time diligently provided for Therefore those words Gods Law except must referr to such other marriages as by Gods Law might be impeach'd and not to any for Consanguinity or Affinity for had not those words been the generality of the Expression No marriage shall be impeach'd without the Levitical Degrees had excluded the impeaching marriages for plurality of Wives or Husbands at a time for Impotency and for Adultery as Sir Edward Coke observes at the end of his Comment upon this Statute in his Second Institutes But if those words No marriage shall be impeach'd Gods Law except shall be understood That no marriage should be impeach'd not prohibited by the Scripture viz. Gods Law Then 1. There was no use of naming the Levitical Degrees at all 2. The Pope would have interpreted the Scripture which belong'd to him to have prohibited all marriages between Kindred as anciently and then the end of the Act had been frustrate 3. Wherein was the Kings Iurisdiction and Regal Power righted if prohibiting of marriage for Consanguinity or Affinity were to be proceeded in as formerly But all marriages without the Levitical Degrees being made lawful because the Secular Iudges by the Act of 28 H. 8. c. 7. had certain Conizance of them both expresly and in Consequence they were no more of Ecclesiastical Conizance than Contracts concerning Land or Lay Chattels were and therefore the questioning of them to be prohibited as the other This was to complain of the Pope as a wrong doer against the Law of God viz. Holy Scripture and diligently to provide remedy for it according to the Scripture whereof the wrong doer was the only decisive and infallible Interpreter as the Church then believed which is redressing a wrong by the Iudgment of the wrong doer Anciently before any Act of Parliament alter'd the Law the lawfulness or unlawfulness of marriages and which were incestuous which not were only of Ecclesiastical Conuzance and the Temporal Courts medled not to ratifie or prohibit any marriage The Statute de Circumspecte agatis 13 E. 1. Circumspecte agatis de Negotiis tangentibus Episcopum Norwic ejus Clerum non puniendo eos si placitum tenuerint in Curia Christianitatis de his quae mere sunt spiritualia viz. de Correctionibus quas faciant pro mortali peccato viz. pro fornicatione adulterio hujusmodi Mag. Chart. Cok. f. 488. upon that Statute Sir Edward Coke in his Comment upon this Statute and those words viz. pro fornicatione adulterio hujusmodi which by the express words of the Statute are said to be mere Spiritualia saith and truly That the word hujusmodi must be understood of offences of like nature with Fornication and Adultery as for solicitation of a womans Chastity which is less than Fornication or Adultery and for Incest which is greater So as the Conuzance of Incest was meerly Spiritual and concern'd not the lay Law at all originally 2. There was no time
brevi de Ad quod damnum And when the King can licence without any Writ of Ad quod damnum he may if he will licence whatever the Retorn of the Writ be Though it be said in the Case of Monopolies That in the Kings Grant it is always a Condition expressed or implyed Quod patria plus solito non oneretur but that seems but gratis dictum So if the King will ex speciali gratia licence a Mortmain Dyer 9 10 El. f. 269. a. the Chancellor need not issue any Ad quod damnum for the King without words of Non obstante is sufficiently appris'd by asking his licence to do a thing which at Common Law might be done without it that now it cannot be done without it And that is all the use of a Non obstante But whether in such Cases licences limited to certain quantities of the Commodities to be imported be good as some collect from that Case as it is reported which appears not by the Iudgment nor in what Cases licences may be general or ought to be limited is not now properly before us 1. If Exportation Importation of a Commodity or the exercise of a Trade be prohibited generally by Parliament and no cause expressed of the Prohibition a licence may be granted to one or more without limitation to Export or Import or to exercise the Trade For by such general Restraint the end of the Law is conceived to be no more than to limit the over-numerous Exporters Importers or Traders in that kind by putting them to the difficulty of procuring licences and not otherwise and therefore such general licences shall not be accounted Monopolies 2. In such Cases the Law implies the King may licence as well as if the prohibitory Law had been that no such Importation Exportation or Trading should be without the King 's express licence in which Case the licence requires no limitation to a certain quantity 3. It is apparent That if the exercise of a Trade be generally prohibited the King's Licence must be without any Limitation to him that hath it to exercise his Trade as before it was prohibited else it is no licence at all 4. Where the King may dispense generally he is not bound to it but may limit his Dispensation if he think fit 5. If to avoid a Monopoly his Dispensation upon all prohibitory Laws generally must by Law be limited his limited Dispensation may be for greater quantities than were Imported or Exported before the Restraint because the quantity in the Dispensation is left indefinite and may be any quantity certain and consequently the end of the Restraint equally frustrated and the Monopoly as effectual as if the Licence had been general though it be limited 6. If a Commodity be prohibited to be Exported or Imported because too great quantities of it is carried out or brought in the Licences ought to be limited to answer the end of the Act. 7. If Importation of a Commodity be prohibited to maintain the Native Artificers of that Commodity in the Kingdome with livelyhood and so of Exportation no Licence either with stint or limitation or without it seems good by way of Merchandise for both of them may equally frustrate the end of the Act in the support of the Native Artificers for the former reason but such a Licence may be good to Import for a mans private use though in the Case of Monopolies it is said Such a Licence without any Limitation is a Monopoly which is as much perhaps by implication as to say that such a Licence with a Limitation is no Monopoly quod non credo As to the second Question Admitting King James might have dispens'd with particular persons for selling Wine by Retail as the constant course hath been since the Statute of 7 E. 6. Whether he could dispense with a Corporation or with this Corporation of Vintners and their Successors as he hath done having no possible knowledge of the persons themselves or of their number to whom he granted his Dispensation which is the Reason insisted on why his Grant is not good As to that 1. First That the nature of the offence is such as may be dispens'd with seems clear in reason of Law and by constant practice of licencing particular persons 2. Where the King can dispense with particular persons he is not confined to number or place but may licence as many and in such places as he thinks fit An Act of Parliament which generally prohibits a thing upon penalty which is popular or only given to the King may be inconvenient to divers particular persons in respect of person place time c. For this cause the Law hath given power to the King to dispense with particular persons But that Case touches not upon any inconvenience from the largeness of the Kings dispensation in respect of persons place or time which the Law leaves indefinite to the pleasure of the King as the remedy of inconveniences to persons and places by the penal Laws some of which may be very inconvenient to many particular persons and to many trading Towns others but to few persons or places and the remedy by Dispensation accordingly must sometimes be to great numbers of persons and places and sometimes to fewer If the wisdome of the Parliament hath made an Act to restrain pro bono publico the Importation of Forreign Manufactures that the Subjects of the Realm may apply themselves to the making of the said Manufactures for their support and livelyhood to grant to one or more the Importation of such Manufacture without any limitation non obstante the said Act is a Monopoly and void 3. It is admitted a Corporation is capable of a Dispensation as where the King hath an Inheritance in the thing concerning which the Dispensation is so it was express'd and therefore he may dispense with a Corporation of Merchants or with a Town Corporate not to pay Custome for some Commodity as he may with particular persons This seems to end the Question For if the offence in its nature may be dispens'd with and a Corporation be capable of a Dispensation the King 's not knowing the persons or numbers which is the pretended reason will not avoid the Dispensation in the present Case of the Vintners For by the same reason dispensations to Corporations and their Successors would be void in all Cases as well as in this for their persons and numbers must be equally unknown to the King in every Case as in the present Case That a dispensation may be granted to a Body Corporate or Aggregate as well as to private persons Suarez de Legibus which Mr. Attorney cited in this Case and is in truth a most learned Work is very express Suarez de Legibus l. 6. c. 12. f. 416. Dispensatio autem per se primo versari potest circa personam privatam quia solum est particularis exceptio à Communi Lege potest etiam ferri circa
Wine for that Objection reaches to Dispensations with single Persons as well as Corporations 2. The reason why the King cannot dispense in the Cases of Answ 2 buying Offices and Simoniacal Presentations is because the persons were made incapable to hold them and a person incapable is as a dead person and no person at all as to that wherein he is incapable For persons entred in Religion and dead in Law were not to all purposes dead but to such wherein they were incapable to take or give 3. A Member of the House of Commons is by 7 Jac. persona Answ 3 inhabilis and not to be permitted to enter the House before the Oath taken A particular Action is given by 2 H. 4. for such Suit in the Admiralty and such Licence gives the Admiralty a Iurisdiction against Law 4 5 P. M. Dyer 159. Domingo Belatta's Case A third Objection was That this general Dispensation answers Obj. 3 not the end and intention of the Act of 7 E. 6. but seems to frustrate and null that Law wholly And though the King can dispense with penal Laws yet not in such manner as to annihilate and make them void If this Objection held good in fact it is a material one Answ 1 but the Act of 7 E. 6. intended not that no Wine should be sold nor that it should be with great restraint sold but not so loosly as every man might sell it And since it is admitted that the Act of 7 E. 6. restrains not the King's power to licence selling Wine which perhaps was more a Question than this in hand it is clear the King may licence as if the Act had absolutely prohibited selling Wine and left it to the King to licence as he thought fit not abrogating the Law And if so The end of the Act being only that every man should not Answ 2 sell Wine that would as they might when the Act was made and not to restrain convenient numbers to sell for the Kingdoms use The King could not better answer the end of the Act than to restrain the sellers to Freemen of London To the Corporation of Vintners men bred up in the Trade Answ 3 and serving Apprentiships in it And that such should be licenc'd without restraint is most agreeable to the Laws of the Kingdom which permits not persons who had served Seven years to have a way of livelyhood to be hindred from exercising their Trades in any Town or part of the Kingdom Taylors of Ipswich C. Report 11. as was resolved in the Taylors of Ipswich Case in the Eleventh Report And therefore the King had well complyed with the ends of the Law had he licenced such to sell in any part of the Kingdom which he did not but confined them to Towns Obj. 4 It hath been said to the Case of Licences to Corporations for purchasing in Mortmain That the Laws against Mortmain are not penal because they may be dispens'd with without a Non obstante and so cannot penal Laws be Answ 1 It is durus sermo that those Laws are not penal which give the forfeiture of the Land 2. By the Statute of 1 H. 4. c. 6. and 4 H. 4. c. 4. the King is restrained in some Cases from granting as he might at the Common Law Therefore without a Non obstante of those Laws it cannot appear that the King would have granted it if he had been appris'd of those restraining Laws Therefore a Non obstante in such Case is requisite But when a man might by the Common Law purchase without licence as in the Case of Mortmain before the prohibiting Statutes or might Export or Import a prohibited Commodity before restraint by Statute a Licence ex specialia gratia is sufficient without a Non obstante For by petitioning for a Licence the King is sufficiently informed the Law permits not the thing without a Licence which is all the use of a Non obstante This enough appears by the Case in Dyer 269. where a Licence ex speciali gratia is good without issuing any Ad quod damnum in the Case of Mortmain 3. The Writ of Ad quod damnum in that Case which regularly issues informs the King better than a Non obstante would do Obj. 5 Next it hath been said in the Case of Mortmain the King dispenseth only with his own Right and concludes not the mean Lords It is true for the King in no case can dispense but with his own Right and not with anothers Answer hath been offered to the President of Waterford by Obj. 6 which the King dispens'd with the Offence of not bringing the Staple Merchandise from Ireland to Calais being so penal which was an Offence by 10 H. 6. c. and 14 H. 6. c. to the universal hurt of the Kingdom and therefore much greater than selling of Wine contrary to the Statute of 7 E. 6. c. but that was as hath been said Because those Merchants were to pay Custome to the King which was his Inheritance and with which he could dispense Answ This put together sounds thus The Merchants of Waterford were to pay Customes to the King for their Staple Merchandise for which he might dispense if he would but never did for any thing appears The Merchants of Waterford were upon penalties to bring their Staple Merchandise to Calais with which the King could not dispense had no Customes been due from them yet he did dispense with them for that which he could not viz. bringing their Goods to Calais because he did not dispense with them for that which he could viz. their Customes there is no Inference nor Coherence in this Answer But it also appears by the Statute 27 E. 3. c. 11. of the Staple for the reason therein given that the Merchants of Ireland were to pay their Customes in Ireland and to bring their Cockets of their payments there to the Staple lest otherwise they might be doubly charg'd Therefore the Customes which were paid in Ireland before the Goods brought to the Staple was no cause for dispensing with the Corporation of Waterford for not bringing their Merchandise to the Staple according to the penal Laws for that purpose The Licence of Edward the Third pleaded by the men of Waterford was perhaps after the Statute of 27 E. 3. when they were not to pay their Customes at the Staple but however the Licences by them pleaded 1 H. 7. by Henry the Sixth and Edward the Fourth were long after they were to pay their Customes in Ireland and not at the Staple I must say as my Brother Atkins observed before That in this Case the Plaintiffs Council argue against the Kings Prerogative for the extent of his Prerogative is the extent of his Power and the extent of his Power is to do what he hath will to do according to that ut summae potestatis Regis est posse quantum velit sic magnitudinis est velle quantum potest if therefore the King have a will
to the King to license as he thought fit 355 2. The intent of the Act being That every man should not sell Wine that would his Majesty could not better answer the ends of the Act than to restrain the sellers to Freemen of London to the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it ibid. 13 El. c. 12 Not reading the Articles 1. Immediately upon not reading the Articles the Incumbent is by this Statute deprived ipso facto 132 2. Upon such Deprivation the Patron may present Ante 14. and his Clerk ought to be admitted and instituted but if he do not no Lapse incurrs until after Six months after notice of such Deprivation given to the Patron 132 3. Where the Incumbent subscribes the Articles upon his Admission and Institution that makes him perfect Incumbent pro tempore 133 4. But if he hath a Benefice and afterwards accepts another and doth not subscribe nor read the Articles then he never was Incumbent of the second and consequently never accepted a second Benefice to disable him from holding the first 132 133 134 1. That all Leases by Spiritual persons of Tythe c. 13 Eliz. cap. 10. Concerning Leases to be made by Ecclesiastical persons parcel of their Spiritual Promotions other than for One and twenty years or three Lives reserving the accustomed yearly Rent shall be void 2. This Statute intended that Leases in some sense might be made of Tithes for One and twenty years or three Lives and an ancient Rent Reserved but of a bare Tythe only a Rent could not be reserved for neither Distress nor Assise can be of such a Rent 203 204 3. Therefore a Lease of Tythe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intent of the Statute 204 7 Jac. cap. 5.21 Jac. cap. 12. For Officers to be sued in the proper County 1. The question upon these Acts was Whether an Officer or any in their assistance that shall do any thing by colour of but not concerning their Office and be therefore impleaded shall have the benefit of these Acts. 2. Or if they are impleaded for any thing done by pretence of their Offices and which is not strictly done by reason of their Office but is a mis-seazante Whether they may have the like benefit 3. Without this Act the Action ought to be laid where the Fact was done and the Act is but to compel the doing of that where an Officer is concerned that otherwise Fieri debuit 114 4. The Statute intends like benefit to all the Defendants where the Fact is not proved to be done where the Action is laid as if the Plaintiff became Non-suit or suffered a Discontinuance viz. that they should have double costs 117 12 Car. 2. cap. 4. For granting Tonnage and Poundage to the King 1. Those Wines which are to pay this Duty according to the Act must be Wines brought into Port as Merchandise by his Majesties Subjects or Strangers 165 2. But Wines which are by their kind to pay Duty if they shall be brought into Ports or Places of this Kingdom neither by his Majesties Subjects nor Aliens they are not chargeable with this Duty ibid. 3. If they are not brought into the Ports and Places as Merchandize viz. for Sale they are not chargeable with the Duty 165 170 4. Wines coming into this Kingdom as Wreck are neither brought into this Kingdom by his Majesties Subjects nor Strangers but by the Wind and Sea 166 5. Wreck'd Goods are not brought into this Kingdom for Merchandise viz. for Sale but are as all other the Native Goods of the Kingdom for sale or other use at the pleasure of the owner ibid. 6. All Goods chargeable with the Duties of this Act must be proprieted by a natural born Merchant or Merchant Alien and accordingly the greater and lesser Duty is to be paid 166 168 7. All Goods subject to this Duty may be forfeited by the disobedience and mis-behaviour of the Merchant-proprietor or those entrusted by him 167 1. The intent of this Statute is to priviledge the Father against common Right 12 Car. 2 cap. 24. To enable the Father to devise the Guardianship of his Son to appoint the Guardian of his Heir and the time of his Wardship under One and twenty 179 2. Such a special Guardian cannot transfer the custody by Deed or Will to any other 179 3. He hath no different Estate from a Guardian in Soccage but for the time the of Wardship 179 4. The Father cannot by this Act give the custody to a Papist 180 5. If the Father doth not appoint for how long time under One and twenty years his Son shall be in Ward it is void for Uncertainty 185 6. The substance of the Statute and sense thereof is That whereas all Tenures are now Soccage and the Law appoints a Gardian till Fourteen yet the Father may nominate the Gardian to his Heir and for any time until his Age of One and twenty and such Gardian shall have like remedy for the Ward as Gardian in Soccage at the Common Law 183 Supersedeas 1. If a priviledged person as an Attorney c. or his Menial Servant is sued in any Jurisdiction forreign to his priviledge he may have a Supersedeas 155 Surplusage 1. Surplusage in a special Verdict 78 Suspension 1. A Suspension of Rent is when either the Rent or Land are so conveyed not absolutely and finally but for a certain time after which the Rent will be again revived 199 2. A Rent may be suspended by Unity for a time and afterwards restored 39 Tayl See Title Warranty 1. SEE an Exposition upon the the Statute de Donis 370 371 372 c. 2. What shall be a good Estate Tayl by Implication in a Devise 262 3. A. having Issue Thomas and Mary deviseth to Thomas and his Heirs for ever and for want of Heirs of Thomas to Mary and her Heirs This is an Estate Tayl in Thomas 269 270 4. A Copyholder in Fee surrenders to the use of F. his Son and J. the Son of F. and of the longest liver of them and for want of Issue of J. lawfully begotten the Remainder to M. here it being by Deed J. had only an Estate for Life but had it been by Will it had been an Estate Tayl by Implication 261 5. The Warranty of the Tenant in Tayl descending upon the Donor or his Heirs is no barr in a Formedon in the Reverter brought by them although it be a Collateral Warranty 364 365 6. The lineal Warranty of Tenant in Tayl shall not bind the Right of the Estate Tayl by the Statute de Donis neither with or without Assets descending 365 Tenures See Title Estates  Testament See Devise 1. A Custody as a Gardianship in Soccage is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms 182 Title 1. When you would
recover any thing from me it is not sufficient for you to destroy my Title but you must prove your own to be better than mine 58 60 2. In a Quare Impedit if the Defendant will leave the general Issue and controvert the Plaintiffs Title he must do it by his own Title 58 3. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 4. Priority of possession is a good Title against him who hath no Title at all 299 5. No man can Traverse an Office except he can make himself a good Title 64 Trade 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades in any Town or part of the Kingdom 356 Traverse 1. No person shall Traverse an Office unless he can make himself a good Title 64 2. When in a Quare Impedit the Defendant Traverseth any part of the Plaintiffs Count it ought to be such part as is inconsistent with his Title and being found against the Plaintiff destroys his Title 8 9 10 3. Where the presentation and not the seisin of the Advowson is to be traversed 9 10 11 12 4. Where the Presentation and not the Appendancy is traversable 10 11 15 5. Where the Seisin in Gross or Appendancy is Traversable 12 13 6. The Appendancy is well Traversed when it is all the Plaintiffs Title to present and inconsistent with the Defendants 13 15 7. Where either the Appendancy or Presentation may be Traversed 15 8. Where neither the Seisin in Gross nor Appendancy shall be Traversed but only the Vacancy 16 9. Where the King may take a Traverse upon a Traverse which regularly a common person cannot do but where the first Traverse tendred by the Defendant is not material to the Action brought 62 10. Where the King may refuse to maintain his own Title which is Traversed by the Defendant and take a Traverse to the Title made by the Defendant 62 64 Trespass 1. By the ancient Law it was adjudged in Parliament no man ought to be condemned in a Trespass de praecepto or auxilio if no man were convicted of the Fact done 115 116 2. Action of Trespass against Officers within the Statute as Constables c. and their Assistants must be laid in the proper County 111 112 113 114 115 116 117 Tryal 1. Actions upon Bond or Deed made in Wales Ireland Normandy c. where to be brought 413 2. How Dominions Leagues and Truces are to be tryed 288 3. An Issue arising out of the Jurisdiction of the Courts of England although it arise within the Dominions of England out of the Realm shall not be tryed in England 404 4. If a Signiory in Wales that is not part of the Principality be to be tryed it must be tryed by the Common Law but if Land within the Signiory is to be tryed it must be tryed within the Mannor there 407 5. A person naturalized in Ireland commits Treason beyond the Seas where no local Allegiance is due to the King how and where he shall be tryed 291 292 Tythes 1. Though Tythes pass by Deed only yet where a Rectory and the Tythes de D. are granted if there is not Livery neither the Rectory nor Tythes will pass because they were intended to be granted together 197 2. There can be no primary and immediate Occupancy of Tythes 191 194 3. A Rent cannot be reserved out of a bare Tythe only to make the Lease good within the 13 Eliz. cap. 10. because neither a Distress nor Assise can be brought thereof 204 Verdict See Evidence Issue 1. THE Jury may find a Deed or a Will the Contents thereof being proved by witnesses 77 2. But if they will collect the Contents of the Deed and by the same Verdict find the Deed in haec Verba the Court is not to adjudge upon their Collection but the Deed it self ibid. 3. A Deed or Will must not be found in part because the Court cannot but adjudge upon the whole matter and not upon part only 84 4. The legal Verdict of the Jury is finding for the Plaintiff or the Defendant and what they answer if asked concerning some particular Fact is no part of their Verdict 150 5. In a general Verdict finding the point in Issue by way of Argument although never so concluding is not good 75 187 6. In a Special Verdict the Case in Fact must be found clear to a common intent without Equivocation 75 78 87 7. The Issue was Whether a Copyhold was grantable to three for the lives of two The Jury find that it is grantable for Three Lives this was argumentative only and therefore a void Verdict 87 8. Where a man by Lease reciting a former Lease to have been made doth Demise for Forty years after the Expiration of that Lease paying the same Rent as is mentioned in the recited Lease and only the Lease for Forty years and not the recited Lease is found in the Verdict This Verdict is a void Verdict and findeth neither the one or other Lease 74 75 76 81 82 Vintners See Title Statute 21. 1. The King could not better answer the end of the Act of 7 E. 6. than to restrain the Sellers of Wine to Freemen of London 2. To the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it 355 3. And that such should be licensed without restraint is most agreeable to the Law of the Kingdom which permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades 356 Voucher Vouchee 1. No man shall Vouch who is not privy to the Estate that is who hath not the same Estate as well as the Land to which the warranty was annexed 384 2. When a man will be warranted by Voucher he must make it appear how the warranty extends to him 385 Vse See Title Statutes 19. 1. The Statute brings the new Uses raised out of a feigned possession and for no time in the Conizee to the real possession and for all times in the Conizors which operates according to their Intents to change their Estates but not possessions 42 2. By the Statue of 27 H. 8. the Use and Possession come instantly together 50 3. The principal use of the Statute of Uses is to introduce a general form of Conveyance by which the Conizors of the Fine may execute their purposes at pleasure 50 4. An old Use may be revoked and a new Use raised at the same time 42 5. Uses declared by Indenture made a year after the Recovery 51 6. If a Fine be levied of the Reversion of Land or of a Rent to Uses the Cestuy que use may Distrain without Attornment 50 51 7. A Rent may arise out of the Estate of Cestuy que use upon a Recovery which was to arise out of the Recoverers Estate 52 Vsurpation 1. A void