Reversion to his own right Heirs after which Michael dyed leaving Issue Robert his Son and Heir by a first Venter and the said Ralph by Jane his second wife after the death of Michael Robert entred and from Robert by divers Mesne Conveyances a Title was deduced to the Heir of the Plaintiff Ralph had Issue Robert the Defendant And in this special Verdict the question was If any Vse did arise to Ralph by this Indenture 23 Jan ' 21 Jac ' Hales Rainsford and Wyld against the Opinion of Twisden Michael Mitford took an Estate for life by implication and consequence and so had an Estate Tail Hales 1 said it were clear if an Estate for life had been limited to Michael and to the Heirs males of the body of Michael to be begotten on the body of his second wife that had been an Estate Tail 2 Which way soever it be the Estate is lodged in Michael during his life 3 There is a great difference between Estates to be conveyeyed by the rules of the Common Law and Estates conveyed by way of Vse for he may mould the Vse in himself in what estate he will These things being premised he said This Estate being turned by operation of Law into an Estate in Michael is as strong as if he had limited an Estate to himself for life 2 A Limitation to the Heirs of his body is in effect a Limitation to the Vse of himself for his Heirs are included in himself 3 It is perfectly according to the intention of the party which was that his eldest Son should not take but that the Issue of the second wife should take His intent appears to be 1 Object that it should take effect as a future use When a man limits a Vse to commence in futuro Respons and there is such a descendible quality left in him that his Heirs may take in the mean time there it shall operate solely by way of future Vse as if a man Covenant to stand seized to the use of J. S. after the expiration of 40 years or after the death of J. D. there no present alteration of the Estate is made but it is only a future use because the Father or the Ancestor had such an Interest left in him which might descend to his Heir viz. during the years or during the life of J. D. But when no Estate may by reason of the Limitation descend to the Heir until the Contingency happen there the Estate of the Covenantor is moulded to an Estate for life This would be to create an Estate by implication 2 Object We are not here to create an Estate Respons but only to qualifie an Estate which was in the Ancestor before That the old Fee-simple shall be left in him 3 Object Yet the Covenantor had qualified this Estate Respons and converted it into an Estate Tail viz. part of the old Estate That the intention of the parties appears that it should operate by way of future use 4 Object for that of other Lands he covenanted to stand seised to the use of himself and his Heirs of his body It is not the intention of the party that shall comptroll the operation of Law Respons and to the case 1 Inst 22. though it be objected that it was not necessary at the Law to raise an Estate for life by implication yet my Lord Coke hath taken notice what he had said in the case of Parnell and Fenn Roll Rep. 240. if a man make a Feoffment to the use of the Heirs of his body that is an Estate for life in the Feoffor and in Englefields case as it is reported in Moore 303. it is agreed that if a man Covenant to stand seised to an use to commence after his death that the Covenantor thereby is become seised for life As to the second point Twisden Rainsford and Wyld held that no future use would arise to Ralph because he is not heir at Common Law and none can purchase by the name of heir unless he be heir at Common Law But Hales was against them in this point and he held that it Ralph could not take by descent yet he might well take by purchase 1 Because before the St ' de Donis a limitation might be made to this heir and so he was a special heir at Common Law 2 It is apparent that he had taken notice that he had an heir at the Common Law Litt. Sect. 35. 1 Inst 22. So his intent is evident that the heir at the Common Law should not take But on the first point Iudgment was given for the Defendant Term. Mich. 25 Car. II. in Communi Banco Anonymus IF a man be lyable to pay a yearly sum as Treasurer to a Church or the like to a Sub-treasurer or any other and dies the money being in arrear an Action of Assumpsit cannot be maintained against his Executors for these arrears For although according to the resolution in Slade's case 4 Report which Vaughan Chief Iustice said was a strange resolution an Assumpsit or an Action of Debt is maintainable upon a Contract at the parties Election yet where there is no Contract nor any personal privity as in this case there is not an Assumpsit will not lye And in an Action of Debt for these Arrears the Plaintiff must aver that there is so much money in the Treasury as he demands and in this case of an Action against Executors that there was so much at the time of the Testators death c. for the money is due from him as Treasurer and not to be paid out of his own Estate As in an Action against the Kings Receiver the Plaintiff must set forth that he has so much money of the Kings in his Coffers Magdalen Colledge Case INdebitat ' Assumpsit against the President and Scholars of Magdalen Colledge in Oxford for thréescore pounds due for Butter and Cheese sold to the Colledge The Chancellor of the Vniversity demanded Conisance by virtue of Charters of Priviledges granted to the Vniversity by the Kings Progenitors and confirm'd by Act of Parliament whereby amongst other things power is given them to hold plea in personal Actions wherein Scholars or other priviledged persons are concerned and concludes with an express demand of Conisance in this particular cause Baldw. Their priviledge extends not to this case for a Corporation is Defendant and their Charters mention priviledged persons only Their Charters are in derogation of the Common Law and must be taken strictly They make this demand upon Charters confirm'd by Act of Parliament and they have a Charter granted by King Henry 8. which is confirm'd by an Act in the Queens time but the Charter of 11 Car. 1. which is the only Charter that mentions Corporations is not confirm'd by any Act of Parliament and consequently is not material as to this demand For a demand of Conisance is stricti Juris But admitting it material the Kings Patent
pleasure of the Lords no doubt that would have been an illegal Commitment against Magna Charta and the Petition of Right There the Commitment had been expresly illegal and it may be this Commitment is no less For if it had been expresly shewn and he be remanded he is committed by this Court who are to answer for his Imprisonment But secondly The duration of the Imprisonment during the pleasure of the King and of the House is illegal and uncertain for since it ought to determine in two Courts it can have no certain period A Commitment until he shall be discharged by the Courts of Kings-Bench and Common-Pleas is illegal for the Prisoner cannot apply himself in such manner as to obtain a discharge If a man be committed till further Order he is bailable presently for that imports till he shall be delivered by due course of Law and if this Commitment have not that sense it is illegal for the pleasure of the King is that which shall be determined according to Law in his Courts as where the Statute of Westm ' 1. cap. 15. declares that he is not replevisable who is taken by command of the King it ought to extend to an extrajudicial command not in his Courts of Iustice to which all matters of Iudicature are delegated and distributed 2 Inst 186 187. Wallop to the same purpose he cited Bushells case Vaughan's Rep. 137. that the general Retorn for high Contempts was not sufficient and the Court that made the Commitment in this case makes no difference for otherwise one may be imprisoned by the House of Peers unjustly for a matter relievable here and yet shall be out of all relief by such a Retorn for upon a supposition that this Court ought not to meddle where the person is committed by the Peers then any person at any time and for any cause is to be subject to perpetual Imprisonment at the pleasure of the Lords But the Law is otherwise for the House of Lords is the supream Court yet their Iurisdiction is limited by the Common and Statute Law and their excesses are examinable in this Court for there is great difference betwéen the errors and excesses of a Court betwéen an erroneous proceéding and a proceeding without Iurisdiction which is void and a meer nullity 4 H. 7. 18. In the Parliament the King would have one Attaint of Treason and lose his Lands and the Lords assented but nothing was said of the Commons wherefore all the Iustices held that it was no Act and he was restored to his Land and without doubt in the same case if the party had been imprisoned the Iustices must have made the like resolution that he ought to have been discharged It is a Sollecism that a man shall be imprisoned by a limited Iurisdiction and it shall not be examinable whether the cause were within their Iurisdiction or no. If the Lords without the Commons should grant a Tax and one that refused to pay it should be imprisoned the Tax is void but by a general Commitment the party shall be remediless So if the Lords shall award a Capias for Treason or Felony By these instances it appears that their Iurisdiction was restrained by the Common Law and it is likewise restrained by divers Acts of Parliament 1 H. 4. cap. 14. No Appeals shall be made or any way pursued in Parliament And when a Statute is made a power is implicitely given to this Court by the fundamental constitution which makes the Iudges Expositors of Acts of Parliament And peradventure if all this case appeared upon the Retorn this might be a case in which they were restrained by the Statute 4 H. 8. cap. 8. That all Suits Accusements Condemnations Punishments Corrections c. at any time from henceforth to be put or had upon any Member for any Bill speaking or reasoning of any matters concerning the Parliament to be communed or treated of shall be utterly void and of none effect Now it doth not appear but this is a correction or punishment imposed upon the Earl contrary to the Statute There is no question made now of the power of the Lords but it is only urged that it is necessary for them to declare by virtue of what power they proceed otherwise the Liberty of every Englishman shall be subject to the Lords whereof they may deprive any of them against an Act of Parliament but no usage can justifie such a proceeding Ellismeres case of the Post-nati 19. The Duke of Suffolk was impeached by the Commons of High Treason and Misdemeanors the Lords were in doubt whether they would proceed on such general Impeachment to imprison the Duke And the advice of the Iudges being demanded and their resolutions given in the negative the Lords were satisfied This case is mentioned with design to shew the respect given to the Iudges and that the Iudges have determined the highest matters in Parliament At a conference between the Lords and Commons 3 Aprilis Car. 1. concerning the Rights and Priviledges of the Subject It was declared and agreed that no Freeman ought to be restrained or committed by command of the King or Privy-Council or any other in which the House of Lords are included unless some cause of the Commitment Restraint or Deteynor be set forth for which by Law he ought to be committed c. Now if the King who is the Head of the Parliament or his Privy Council which is the Court of State ought therefore to proceed in a legal manner this solemn resolution ought to end all Debates of this matter It is true 1 Roll 129. in Russells case Coke is of Opinion that the Privy-Council may commit without shewing cause but in his more mature age he was of another Opinion And accordingly the Law is declared in the Petition of Right and no inconvenience will ensue to the Lords by making their Warrants more certain Smith argued to the same purpose and said That a Iudge cannot make a Iudgment unless the Fact appears to him on a Habeas Corpus the Iudge can only take notice of the Fact retorned It is lawful for any Subject that finds himself agrieved by any Sentence or Iudgment to Petition the King in an humble manner for Redress And where the Subject is restrained of his liberty the proper place for him to apply himself to is this Court which hath the supreme power as to this purpose over all other Courts and an Habeas Corpus issuing here the King ought to have an accompt of his Subjects Roll tit Habeas Corp. 69. Wetherlies case And also the Commitment was by the Lords yet if it be illegal this Court is obliged to discharge the Prisoner as well as if he had been illegally imprisoned by any other Court The House of Peers is an high Court but the Kings-Bench hath ever been entrusted with the Liberty of the Subject and if it were otherwise in case of Imprisonment by the Peers the power of the King were
also for that they sued the Plaintiff in another Court knowing that he was an Attorney of the Common-Pleas and priviledged there Per tot ' Cur ' there is no cause of Action For put the case as strong as you will suppose a man be retained as an Attorney to sue for a debt which he knows to be released and that himself were a witness to the Release yet the Court held that the Action would not lye for that what he does is only as Servant to another and in the way of his Calling and Profession And for suing an Attorney in an inferiour Court that they said was no cause of Action for who knows whether he will insist upon his priviledge or not and if he does he may plead it and have it allowed Fits al. versus Freestone IN an Action grounded upon a promise in Law payment before the Action brought is allowed to be given in Evidence upon non Assumpsit But where the Action is grounded upon a special promise there payment or any other legal discharge must be pleaded Bringloe versus Morrice IN Trespass for immoderately riding the Plaintiffs Mare the Defendant pleaded that the Plaintiff lent to him the said Mare licentiam dedit eidem aequitare upon the said Mare and that by virtue of this Licence the Defendant and his Servant alternatim had rid upon the Mare The Plaintiff demurs Serj. Skipwith pro Quer ' The Licence is personal and incommunicable as 12 H. 7. 25. 13 H. 7. 13. the Dutchess of Norfolk's case 18 Ed. 4. 14. Serj. Nudigate contra This Licence is given by the party and not created by Law wherefore no Trespass lyeth 8 Rep. 146 147. per Cur ' the Licence is annexed to the person and cannot be communicated to another for this riding is matter of pleasure North took a difference where a certain time is limited for the Loan of the Horse and where not In the first case the party to whom the Horse is lent hath an interest in the Horse during that time and in that case his Servant may ride but in the other case not A difference was taken betwixt hiring a Horse to go to York and borrowing a Horse in the first place the party may set his Servant up in the second not Term. Pasch 28 Car. II. in Communi Banco Anonymus A Man upon marriage Covenants with his Wives relations to let her make a Will of such and such Goods she made a Will accordingly by her husbands consent and dyed After her death her Will being brought to the Prerogative Court to be proved a Prohibition was prayed by the Husband upon this suggestion that the Testatrix was foemina viro cooperta and so disabled by the Law to make a Will Cur ' Let a Prohibition go Nisi causa c. North. When a question ariseth concerning the Iurisdiction of the Spiritual Court as whether they ought to have the Probate of such a Will whether such a disposition of a personal Estate be a Will or not whether such a Will ought to be proved before a peculiar or before the Ordinary whether by the Archbishop of one Province or another or both and what shall be bona notabilia in these and the like cases the Common Law retains the Iurisdiction of determining there is no question but that here is a good surmise for a Prohibition to wit that the woman was a person disabled by the Law to make a Will the Husband may by Covenant depart with his right and suffer his Wife to make a Will but whether he hath done so here or not shall be determined by the Law we will not leave it to their decision it is too great an invasion upon the right of the Husband In this case the Spiritual Court has no Iurisdiction at all they have the Probate of Wills but a Feme-covert cannot make a Will If she disposeth of any thing by her Husbands consent the property of what she so disposeth passeth from him to her Legatee and it is the gift of the husband If the Goods were given into anothers hands in trust for the wife still her Will is but a Declaration of the trust and not a Will properly so called But of things in Action and things that a Feme-Covert hath as Executrix she may make a Will by her Husbands consent and such a Will being properly a Will in Law ought to be proved in the Spiritual Court. In the case in question a Prohibition was granted against the Hambrough Company THe Plaintiff brought an Action of Debt in London against the Hambrough-Company who not appearing upon Summons and a Nihil being returned against them an Attachment was granted to attach Debts owing to the Company in the hands of 14 several persons by Certiorari the cause was removed into this Court and whether a Procedendo should be granted or not was the question Serjeant Goodfellow Baldwin and Barrell argued that a debt owing to a Corporation is not attachable Serjeant Maynard Scroggs contra Cur ' We are not Iudges of the Customs of London nor do we take upon us to determine whether a debt owing to a Corporation be within the Custom of forrein Attachment or not This we judge and agree in that it is not unreasonable that a Corporation's debts should be attached If we had judged the Custom unreasonable we could and would have retained the cause For we can over-rule a Custom though it be one of the Customs of London that are confirmed by Act of Parliament if it be against natural reason But because in this Custom we find no such thing we will return the cause Let them proceed according to the Custom at their peril If there be no such Custom they that are aggrieved may take their remedy at Law We do not dread the consequences of it It does but tend to the advancement of Iustice and accordingly a Procedendo was granted per North Chief Justice Wyndham Ellis Atkyns aberat Anonymus PEr Cur ' if a man is indicted upon the Statute of Recusancy Conformity is a good plea but not if an Action of Debt be brought Parten Baseden's Case PArten brought an Action of Debt in this Court against the Testator of Baseden the now Defendant aâ—d had Iudgment After whose death there was a devastavit returned against the Defendant Baseden his Executor he appeared to it and pleaded and a special Verdict was found to this effect viz. that the Defendant Baseden was made Executor by the Will and dwelt in the same house in which the Testator lived and died and that before Probate of the Will he possest himself of the Goods of the Testator prized them inventoried them and sold part of them and paid a Debt and converted the value of the residue to his own use that afterwards before the Ordinary he refused and that upon his refusal administration was committed to the Widow of the deceased And the question was whether or no the
take notice that he is a Bankrupt any Execution may be stopped at that rate by alledging that there is a Commission of Bankrupts out against the Plaintiff If he be a Bankrupt you must take out a special Scire facias and try the matter whether he be a Bankrupt or not Which Jones said they would do and the Court granted Twisden If a Mariner or Ship-Carpenter run away he loses his wages due which Hales granted Henry L. Peterborough vers John L. Mordant A Trial at Bar upon an Issue out of the Chancery whether Henry Lord Peterborough had only an Estate for Life or was seized in Fee-tail The Lord Peterborough's Counsel alledged that there was a settlement made by his Father 9 Car. 1. whereby he had an Estate in Tail which he never understood till within these three years but he had claimed hitherto under a Settlement made 16 Car. 1. And to prove a Settlement made 9 Car. 1. he produced a Witness who said that he being to purchase an Estate from my Lord the Father one Mr. Nicholls who was then of Counsel to my Lord gave him a Copy of such a Deed to shew what title my Lord had But being asked whether he did see the very Deed and compare it with that Copy he answered in the negative whereupon the Court would not allow his Testimony to be a sufficient Evidence of the Deed and so the Verdict was for my Lord Mordant Cole Forth A Trial at Bar directed out of Chancery upon this Issue whether Wast or no Wast Hales By protestation I try this cause remembring the Statute of 4 Henr. 4. And the Statute was read whereby it is Enacted That no Iudgment given in any of the Kings Courts should be called in question till it were reverst by Writ of Error or Attaint He said this cause had been tried in London and in a Writ of Error in Parliament the Iudgment affirmed Now they go into the Chancery and we must try the cause over again and the same point A Lease was made by Hilliard to Green in the year 1651. afterwards he deviseth the Reversion to Cole and Forth gets an under-Lease from Green of the premisses being a Brew-house Forth pulls it down and builds the ground into Tenements Hales The question is whether this be Wast or no and if it be Wast at Law it is so in Equity To pull down a House is Wast but if the Tenant build it up again before an Action brought he may plead that specially Twisden I think the Books are pro and con whether the building of a new House be Wast or not Hales If you pull down a Malt-mill and build a Corn-mill that is Wast Then the Counsel urged that it could not be repaired without pulling it down Twisden That should have been pleaded specially Hales I hope the Chancery will not Repeal an Act of Parliament Wast in the House is Wast in the Curtelage and Wast in the Hall is Wast in the whole House So the Iury gave a Verdict for the Plaintiff and gave him 120 l. damages Term. Mich. 25 Car. II. 1673. in B. R. AN Action of Debt was brought upon a Bond in an inferiour Court the Defendant cognovit actionem petit quod inquiratur per patriam de debito This pleading came in question in the Kings Bench upon a Writ of Error but was maintain'd by the Custom of the place where c. Hales said it was a good Custom for perhaps the Defendant has paid all the Debt but 10 l. and this course prevents a Suit in Chancery And it were well if it were established by Act of Parliament at the Common Law Wild. That Custom is at Bristow Randall versus Jenkins 24 Car. 2. Rot. 311. REplevin The Defendant made Conusance as Bayliff to William Jenkins for a Rent-charge granted out of Gavel-kind Lands to a man and his Heirs The question was whether this Rent should go to the Heir at Common Law or should be partible amongst all the Sons Hardres It shall go to the eldest Son as Heir at Law for I conceive it is by reason of a Custom time out of mind used that Lands in Kent are partible amongst the Males Lamb. Perambulat of Kent 543. Now this being a thing newly created it wants length of time to make it descendible by Custom 9 H. 7. 24. A feoffment in Fee is made of Gavel-kind Lands upon Condition the Condition shall go to the Heirs at Common Law and not according to the descent of the Land Co. Litt. 376. If a warranty be annex'd to such Lands it shall descend only upon the eldest Son Now this Rent-charge being a thing contrary to common right and de novo created is not apportionable Litt. Sect. 222. 224. it is not a part of the Land for if a man levy a Fine of the Land it will not extinguish his Rent unless by agreément betwixt the parties 4 Edw. 3. 32. Bro. tit Customs 58. if there be a Custom in a particular place concerning Dower it will not extend to a Rent-charge Fitz. Dower 58. Co. Litt. 12. Fitz. Avowry 207. 5 Edw. 4. 7. there is no occasion in this case to make the Rent descendible to all for the Land remains partible amongst the Males according to the Custom And why a Rent should go so to the prejudice of the Heir I know not 14 H. 88. it is said that a Rent is a different and distinct thing from the Land Then the language of the Law speaks for general Heirs who shall not be disinherited by construction The grand Objection is whether the Rent shall not follow the nature of the Land 27 H. 8. 4. Fitzherb said he knew four Authorities that it should Fitz. Avowry 150. As for his first case I say that Rent amongst Parceners is of another nature than this for that is distreynable of Common right As for the second I say the rule of it holds only in cases of Proceedings and Trials which is not applicable to his Custom His third case is that if two Coparceners make a feoffment rendring Rent and one dies the Rent shall not survive To this I find no answer given Litt. Sect. 585. is further objected where it is said that if Land be deviseable by Custom a Rent out of such Lands may be devised by the same Custom but Authorities clash in this point He cited farther these books viz. Lamb. Peramb of Kent and 14 H. 8. 7 8. 21 H. 6. 11. Noy Randall Roberts case 51. Den. cont I conceive this Rent shall descend to all the Brothers for it is of the quality of the Land and part of the Land it is contained in the bowels of the Land and is of the same nature with it 22 Ass 78. which I take to be a direct Authority as well as an instance Co. Lit. 132. ibid 111. In some Boroughs a man might have devised his Land by Custom and in those places he might have devised a Rent
receive the bodies of James Earl of Salisbury Anthony Earl of Shaftsbury and Philip Lord Wharton Members of this House and keep them in safe custody within the said Tower during his Majesties pleasure and the pleasure of this House for their high Contempt committed against this House And this shall be a sufficient Warrant on that behalf To the Constable c. John Browne Cler ' Parl ' The Earl of Shaftsbury's Counsel prayed that the Retorn might be Filed and it was so And Friday following appointed for the debating of the sufficiency of the Retorn and in the mean time directions were given to his Counsel to attend the Iudges and the Attorny-General with their Exceptions to the Retorn and my Lord was remanded till that day And it was said that though the Retorn was Field the Court could remand or commit him to the Marshal at their Election And on Friday the Earl was brought into Court again and his Counsel argued the insufficiency of the Retorn Williams said That this cause was of great consequence in regard the King was touched in his Prerogative The Subject in his Liberty and this Court in its Iurisdiction The cause of his Commitment which is retorned is not sufficient for the general allegation of high Contempts is too uncertain for the Court cannot judge of the Contempt if it doth not appear in what act it is Secondly It is not shewed where the Contempt was committed and in favour of Liverty it shall be intended they were committed out of the House of Peers Thirdly The time is uncertain so that peradventure it was before the last Act of general Pardon 1 Roll 192 193. and 219. Russells case Fourthly It doth not appear whether this Commitment were on a Conviction or an Accusation only It cannot be denied but that the Retorn of such Commitment by any other Court would be too general and uncertain Moore 839. Astwick was bailed on a Retorn Quod commissus fuit per mandatum Ni. Bacon Mil. Domini Custodis magni Sigilli Angliae virtute cujusdam Contempt ' in Curia Cancellariae fact ' and in that book it appears that divers other persons were bailed on such general Retorns and the cases have been lately affirmed in Bushells case repeated by the Lord Chief Iustice Vaughan where it is expresly said that on such Commitment and Retorns being too general and uncertain the Court cannot believe in an implicite manner that in truth the Commitment was for causes particular and sufficient Vaughans Rep. 14. accord 2 Inst 52 53 55. and 1 Roll 218. And the Commitment of the Iurors was for acquitting Pen and Mead contra plenam manifestam Evidentiam and it was resolved to be too general for the Evidence ought to appear as certain to the Iudge of the Retorn as it appeared before the Iudge authorized to Commit Russells case 137. Now this Commitment being by the House of Peers will make no difference for in all cases where a matter comes in Iudgment before this Court let the question be of what nature it will the Court is obliged to declare the Law and that without distinction whether the question began in Parliament or no. In the case of Sir George Binion in C. B. there was a long debate whether an Original might be Filed against a Member of Parliament during the time of priviledge and it was urged that it being during the Sessions of Parliament the determination of the question did belong to the Parliament But it was resolved an Original might be Filed and Bridgman then being Chief Iustice said That the Court was obliged to declare the Law in all cases that come in Iudgment before them Hill 24 E. 4. Rot. 4. 7. 10. in Scacc ' in Debt by Rivers versus Cousin The Defendant pleads he was a Servant to a Member of Parliament and ideo capi seu arrest ' non debet and the Plaintiff prays Iudgment and quia videtur Baronibus quod tale habetur privilegium quod magnates c. et eorum familiares capi seu arrestari non debent Sed nullum habetur privilegium quod non debent implacitari Ideo respondeat oustr ' So in Treymiards case a question of priviledge was determined in this Court Dyer 60. In the 14 E. 3. in the case of Sir John and Sir Geoffrey Staunton which was cited in the case of the Earl of Clarendon and is entred in the Lords Iournal an Action of Waste depended between them in the Common-Pleas and the Court was divided and the Record was certified into the House of Parliament and they gave direction that the Iudgment should be entred for the Plaintiff Afterwards in a Writ of Error brought in this Court that Iudgment was reversed notwithstanding the Objection That it was given by Order of the House of Lords for the Court was obliged to proceed according to the Law in a matter which was before them in point of Iudgment The construction of all Acts of Parliament is given to the Courts at Westminster And accordingly they have adjudged of the Validity of Acts of Parliament They have searched the Rolls of Parliament Hob. 109. Lord Hudsons case They have determined whether the Iournals be a Record Hob. 110. When a point comes before them in Iudgment they are not foreclosed by any Act of the Lords If it appears that an Act of Parliament was made by the King and Lords without the Commons that is Felo de se and the Courts of Westminster do adjudge it void 4 H. 7. 18. Hob. 111. and accordingly they ought to do If this Retorn contains in it that which is fatal to it self it must stand or fall thereby It hath been a question often resolved in this Court when a Writ of Error in Parliament shall be a Supersedeas And this Court hath determined what shall be said to be a Session of Parliament 1 Roll 29. and if the Law were otherwise there would be a failour of Iustice If the Parliament were Dissolved there can be no question but the Prisoner should be discharged on a Habeas Corpas and yet then the Court must examine the cause of his Commitment and by consequence a matter Parliamentary And the Court may now have cognisance of the matter as clearly as when the Parliament is Dissolved The party would be without remedy for his Liberty if he could not find it here for it is not sufficient for him to procure the Lords to determine their pleasure for his Imprisonment for before his enlargement he must obtain the pleasure of the King to be determined and that ought to be in this Court and therefore the Prisoner ought first to resort hither Let us suppose for it doth not appear on the Retorn and the Court ought not to enquire of any matter out of it that a supposed contempt was a thing done out of the House it would be hard for this Court to remand him Suppose he were committed to a Forreign prison during the
cannot deprive us of the benefit of the Common Law and in the Vice-Chancellors Court they proceed by the Civil Law If you allow this demand there will be a failer of Justice for the Defendants being a Corporation cannot be arrested they can make no stipulation the Vice-Chancellors Court cannot issue Distringas's against there Lands nor can they be excommunicated Presidents we find of Corporations suing there as Plaintiffs in which case the afore-mentioned inconvenience does not ensue but none of Actions brought against Corporations Maynard contra Servants to Colledges and Officers of Corporations have been allowed the priviledge of the Vniversity which they could not have in their own right and if in their Masters right a fortiori their Masters shall enjoy it The word persona in the demand will include a Corporation well enough Vaughan Chief Justice Perhaps the words atque confirmat ' c. in the demand of Conisance are not material for the priviledges of the Vniversity are grounded on their Patents which are good in Law whether confirm'd by Parliament or not The word persona does include Corporations 2 Inst 536. per Coke upon the Statute of 31 Eliz. cap. 7. of Cottages and Inmates A demand of Conisance is not in derogation of the Common Law for the King may by Law grant tenere placita though it may fall out to be in derogation of Westminster-Hall Nor will there be a failer of Justice for when a Corporation is Defendant they make them give Bond and put in Stipulators that they will satisfie the Iudgment and if they do not perform the Condition of their Bond they commit their Bail They have enjoyed these priviledges some hundreds of years ago The rest of the Iudges agreed that the Vniversity ought to have Conisance But Atkyns objected against the form of the demand that the word persona privilegiata cannot comprehend a Corporation in a demand of Conisance howsoever the sense may carry it in an Act of Parliament Ellis Wyndham If neither Schollars nor priviledged persons had been mentioned but an express demand made of Conisance in this particular cause it had then been sufficient and then a fault if it be one in Surplusage and a matter that comes in by way of Preface shall not hurt Atkyns It is not a Preface they lay it as the foundation and ground of their claim The demand was allowed as to matter and form Rogers Danvers DEbt against S. Danvers and D. Danvers Executors of G. Danvers upon a Bond of 100 l. entred into by the Testator The Defendants pleaded that G. Danvers the Testator had acknowledged a Recognisance in the nature of a Statute Staple of 1200 l. to J. S. and that they have no assets ultra c. The Plaintiff replied that D. Danvers one of the Defendants was bound together with the Testator in that Statute to which the Defendants demur Baldwin pro Defendente If this plea were not good we might be doubly charged It is true one of us acknowledged the Statute likewise but in this Action we are sued as Executors And this Statute of 1200 l. was joynt and several so that the Conisee may at his Election either sue the surviving Conisor or the Executors of him that is dead so that the Testators Goods that are in our hands are lyable to this Statute It runs concesserunt se utrumque eorum if it were joynt the charge would survive and then it were against us It is common for Executors upon pleinment administer pleaded to give in Evidence payment of Bonds in which themselves were bound with the Testator and sometimes such persons are made Executors for their security The Opinion of the Court was against the Plaintiff whereupon he prayed leave to discontinue and had it Amie Andrews ASsumpsit The Plaintiff declares that whereas the Father of the Defendant was endebted to him in 20 l. for Malt sold and promised to pay it that the Defendant in consideration that the Plaintiff would bring two Witnesses before a Iustice of Peace who upon their Oaths should depose that the Defendants Father was so endebted to the Plaintiff and promised payment assumed and promised to pay the money then avers that he did bring two Witnesses c. who did swear c. The Defendant pleaded non Assumpsit which being found against him he moved by Sergeant Baldwin in Arrest of Iudgment that the consideration was not lawful because a Iustice of Peace not having power to administer an Oath in this case it is an extrajudicial Oath and consequently unlawful And Vaughan was of Opinion that every Oath not legally administred and taken is within the Statute against prophane swearing And he said it would be of dangerous consequence to countenance these extrajudicial Oaths for that it would tend to the overthrowing of Legal proofs Wyndham Atkins thought it was not a prophane Oath nor within the Statute of King James because it tended to the determining of a controversie And accordingly the Plaintiff had Iudgment Horton Wilson A Prohibition was prayed to stay a Suit in the Spiritual Court commenced by a Proctor for his Fees Vaughan Wyndham No Court can better judge of the Fees that have been due and usual there then themselves Most of their Fees are appointed by constitutions Provincial and they prove them by them A Proctor lately libell'd in the Spiritual Court for his Fees and amongst other things demanded a groat for every Instrument that had been read in the cause the Client pretended that he ought to have but 4 d. for all They gave Sentence for the Defendant the Plaintiff appealed and then a Prohibition was prayed in the Court of Kings Bench. The Opinion of the Court was that the Libell for his Fees was most proper for the Spiritual Court but that because the Plaintiff there demanded a customary Fee that it ought to be determin'd by Law whether such a Fee were customary or no and accordingly they granted a Prohibition in that case It is like the case of a modus for Tythes for whatever ariseth out of the custom of the Kingdom is properly determinable at Common Law But in this case they were of Opinion that the Spiritual Court ought not to be prohibited and therefore granted a Prohibition quoad some other particulars in the Libell which were of temporal cognisance but not as to the suit for Fees Wyndham said if there had been an actual Contract upon the Retainer the Plaintiff ought to have sued at Law Atkyns thought a Prohibition ought to go for the whole Fées he said had no relation to the Iurisdiction of the Spiritual Court nor to the cause in which the Proctor was retain'd No Suit ought to be suffered in the Spiritual Court when the Plaintiff has a remedy at Law as here he might in an Action upon the case for the Retainer is an implied Contract A difference about the grant of the Office of Register in a Bishops Court shall be