Inst 125. though the Statutes of Hen. VIII impower Commissions for trial of Treasons Committed beyond the Seas yet this Court doth and may still take Conusance of such Causes 4 Inst 124. Its Sentences are only reversable by and upon Appeal to the King no Writ of Error or false Judgment lies upon any of them which shews the greatness of the Court and the difference of its Jurisdiction from other Courts which may be some of thereasons why no Prohibition was ever granted to it and why the Parliament of Rich. II. gave the Remedy of a Privy Seal wherefore it was prayed that the Judgment should be Reversed On the other side it was argued by the Council in behalf of the Plaintiff in the Original Action that this Judgment ought to be affirmed and it was after this manner there seem three Queries in the Case 1. If any Prohibition lies to that Court 2. If any Cause here for a Prohibition and 3. If there be any such Court as that before the Earl Marshal but another doubt was raised whether any of these Questions could be such upon this plea which is concluded to the Jurisdiction for that seems to make only one doubt whether the Court of Exchequer could hold Plea of an Action for proceeding contrary to a Prohibition already granted but this was waved and then it was argued 1. That a Prohibition doth lie to this Court of Chivalry in case it exceeds the Jurisdiction proper to it and it was agreed that the Office of Constable is Ancient and by Cambden is held to have been in Ure in this Kingdom in the Saxon's time though the Office of Marshal is but of a puisne date but however Great and Noble the Office is however large and Extensive the Jurisdiction is yet 't is but limitted and Coke in 4 Inst 123. says that 't is declared so by the Statute of Rich. II. where 't is said that they incroached in great prejudice of the King's Courts and to the great grievance and oppression of his people and that their proper Business is to have conusance of Contracts and Deeds of Arms and of War out of the Realm which cannot be determined or discussed by the Common-Law which other Constables have heretofore duly and reasonably used in their time now by this Act 't is plain what the Jurisdiction is Contracts and Deeds of Arms and War out of the Realm are the subject matter of it and by Coke 't is called curia militaris or the Fountain of Marshal Law which shews it a Court that hath its boundaries a Court that may incroach nay which hath incroach'd in diverse instances belonging to the Common-Law And that 't is a Court that ought to meddle with nothing that may be Determined in Westminster-Hall then there must be some way of restraining this excess and these incroachments and if the Statute of Rich. II. had not been made it must be agreed that a Prohibition would have lain for else there had been no remedy which is absurd to affirm 'T is no Objection that Prohibitions are only grantable to Inferiour Courts and that this is one of the greatest Courts in the Realm for if a Court Marshal intermeddle with a Common-Law matter ea ratione it becomes inferior and may be controwled There needs no contest about the Superiority of Courts in this matter 't is the same here as among private Persons he that offends becomes inferior and subject to the Censure of his equal by offending though that Court should be reckoned so noble and great as hath been represented yet 't is only so while it keeps within its Jurisdiction Prohibitions are grantable to almost all sort of Courts which differ from the Common-Law in their proceeding to Courts Christian to the Admiralty nay to the Delegates and even to the Steward and Marshal upon the Statute of Articuli super Chartas Cap. 3. That they shall not hold Plea of Freehold or of Trespass Fits ' N.B. 241 242. is an express Writ of Prohibition though the Statute gave no such Writ but only did restrain the Jurisdiction of the Court which in truth is the Case in Question antecedent to the Statute pleaded No Argument can be raised from the subject matter of the Jurisdiction of this Court that 't is different from the Common-Law for so is the Admiralty and the Prerogative Courts nor is it any Objection that upon any Grievance in this Court the Appeal must be to the King for that holds in the other Courts with equal reason Nay Prohibitions lie from Westminster-Hall to hinder proceeding in Causes which the Courts that grant such Prohibitions cannot hold Plea of as to the Ecclesiastical Court which grants probate of a Will made within a Mannor to the Lord whereof such probate belongs 5 Rep. 73. to the Marches of Wales if hold Plea of what belongs to Court Christian 2 Roll's Abridg. 313. are several Cases to this purpose there were also Cited 1 Roll's Rep. 42. 2 Roll's Abridg. 317. Sid. 189. 1 Brownl 143 144. and Herne 543. 't was further urged that there neither was nor could be any reason assigned why a Prohibition should not be grantable to the Court of Chancery when by English Bill it meddles with the Common-Law in other manner than its Ancient and proper Jurisdiction doth allow and several Authorities were Cited to countenance that Assertion Then was considered the reason of Prohibitions in general that they were to preserve the right of the King's Crown and Courts and the ease and quiet of the Subject that 't was the Wisdom and Policy of the Law to suppose both best preserved when every thing runs in its right Channel according to the Original Jurisdiction of every Court that by the same reason one Court might be allowed to incroach another might which could produce nothing but confusion and disorder in the Administration of Justice that in all other Writs of Prohibition the suggestion is and with Truth in prejudicium corone Regis Gravamen partis and both these are declared to be the consequent of this Courts excess or incroachment of Jurisdiction even by their own Statutes and when the reason is the same the remedy ought to be so But it hath been pretended That the Statute appoints a Privy Seal for to supersede c. and therefore no Prohibition to this it was answered That this Act doth not take away the force of the 8 Rich. II. mentio ned in 4 Inst 125. which restrains the Constable and Marshal from medling with any Plea which concerns the Common Law and if it had a limitted Jurisdiction by the Common-Law or by that Statute the subsequent Statute which gave a further Remedy for to restrain them did not take away that which they had before and every Body must agree that where an Act of Parliament restrains a Jurisdiction such Act warrants a Prohibition in case that restraint be broken or exceeded 't is so in case of a limited Power at
it hath been time out of Mind But here 's a new Constitution and the Rule holds so in Commissions of Oyer and Terminer if the direction be so as is the Case in Plowden 384. the Earl of Leicester's Case If a Mayor and three Aldermen have Conusance of Pleas what a Mayor and two does is null and void And if there be no direction in particular for the number the Law requires the majority So that here was no Councel because but five of them present The Councel have not the power but the Governour with the Advice and Assent of the Councel and so ought their pleading to have been according to their Case That if a Man justifies as a Judge to excuse him from an Action he must set forth his Authority and the Cause must appear to be within his Conusance and so are multitudes of Cases 3 Cro. 130. 2 Leon. pl. 43. and 1 Cro. 153 557 579 593. 12 Rep. 23 25. Mod. Rep. 119. But taking it as a Councel neither Person nor Thing are within its Jurisdiction for if their Doctrine be true that by being Governour he is so absolute as to be subject only to the King then what Sir John Witham did being while and as Deputy Governour which is the true Governour to all purposes in absentia of the other is not examinable by a Successor But admitting for the present that by the Law one Magistrate may be punishable before his Successor for Miscarriages which were committed colore Officii yet here are no such Miscarriages sufficiently alledged to be charged on him 1. There 's no pretence of an Oath nor Circumstances shewing a reasonable Cause of Suspicion one of which ought to have been 2. In pleading no Allegation is sufficient if it be so general as the Party opponent can't in reason be supposed capable of making an Answer to it and that is the true Cause why our Law requires Certainty He did male arbitrarie execute the Office to the Oppression of the King's Subjects No Man living can defend himself on so general a Charge as this is for if Issue had been taken thereon all the Acts of his Government had been examinable which the Law never allows Then the Particulars are as general 1. That he did not take the usual Oath and it doth not appear what Oath or if any was requirable of a Deputy Governour nor who was to administer it so that non constat whether 't was his Fault or the Governours besides that 's no cause of Imprisonment for any thing which appears in the Plea 2. Assuming illegally the Title of Lieutanant Governour that is so trivial as it needs no Answer for Deputy Governour and Lieutenant Governour are all one locum tenens is a Deputy è contra 3. Altering of Orders at his Chamber ad libitum which were made in Court not said that there was any such Court or what Orders or where made non tantum without etiam or verum etiam is not a sufficient positive Allegation not said that he was guilty but only charged and not said how charged whether with or without Oath in writing or by parol nor said to be in any such manner as that the Councel ought or might receive it tho' Oath be not necessary to be mentioned in the Commitment yet it ought to be alledged in pleading because 't is necessary to warrant the Commitment as was held in the Lord Yarmouth's Case in B.R. It could not be to secure his answering the same for not so expressed and 't is not said that Sureties were demanded or denied or that he had notice of the Charge and surely this was bailable As to the Query If conusable here 't was argued That they had not pleaded to the Jur ' nor any Matter to oust the Court of its Jur ' If they intended by this Plea to have done that they should have given Jur ' to some other Court in some other place but this is not done for if an Injury 't is relievable somewhere in the King's Dominions and whether it be so or not is examinable somewhere Now here is a Wrong complain'd of as done by one English-man to another English-man and a Jur ' attacht in the King's Bench both of Cause and Person by the Bill filed and his Defence to it besides Jur ' could not be examined in the Exchequer Chamber because both the Statute and the Writ of Error expresly provide against it and. this Writ of Error is founded upon that Affirmance and therefore questionable whether that could be insisted on here But supposing it might 't was argued that the Action lies for that 't is a transitory Action and follows the Person wheresoever he comes under the power of the Common Law Process and that a Man may as well be sued in England for a Trespass done beyond Sea as in Barbadoes or the like place as for a Debt arising there by Specialty or other Contract that no Body but Prynne ever denied it and he did so only in case of Bonds dated there That many Actions have been maintained and tried here for Facts done in the Indies notwithstanding special Justifications to them and the Trials have been where the Actions were laid There was quoted Dowdale's Case 6 Rep. 47 48. and 7 Rep. 27. and if otherwise there would be a failure of Justice in the King's Dominions 32 Hen. 6.25 vide Jackson and Crispe's Case Sid. 462. 2 Keeble 391 397. 'T was then argued That whatsoever question might be made about the Trial of the Issue if one had been joyned yet now Demurrer being to the Plea if that Plea be naught then the Plaintiff is to have Judgment upon his Declaration and that is all right It was further said That the Justification of such a tort or wrong ought to be according to the Common Law of England for that Barbadoes is under the same Law as England and if 't were not upon his pleading it must be intended to be so and tho' they should be intended different yet the Defendant in the Action was obliged to the same Rules of Pleading for tho' the Matter may justifie him for an Act done there which would not justifie him for the same Act done here yet he must shew that he hath pursued the Rules of Law in that place or in case of no positive Laws the Rules of Natural Equity for either the Common Law or new instituted Laws or natural Equity must be the Rule in those places 'T was agreed That according to Calvin's Case 7 Rep. 17. upon the Conquest of an Infidel Country all the old Laws are abrogated ex instanti and the King imposes what he pleases and in case of the Conquest of a Christian Country he may change them at pleasure and appoint such as he thinks fit tho' Coke quotes no Authority for it yet 't was agreed that this might be consonant to reason But 't was denied that Barbadoes was a Conquest 't was
Visitor not appearing upon Summons refusing to be examined was an Offence and contrary to what the Statutes require He is to inspect the state of the Colledge and each Member's particular behaviour and now when the Visitor comes to make such an Inquisition and the Head or the Members withdraw themselves and will not appear to be examined if this be not a good Cause of Deprivation nothing can be for that nothing else can ever be inquired into As for that Statute which refers to the Causes for which a Rector may be deprived it doth not relate to a Deprivation in a Visitation but shews the manner how the Colledge is to proceed if he be guilty of such Offences they may complain at any time to the Visitor if he wasts the Revenues or behave himself scandalously and upon request will not resign and they may Article against him out of a Visitation but when he comes to execute his Power in his quinquennial Visitation he is not confined to proceed only upon the Information of the Fellows but is to inquire into all the Affairs of the Colledge and may proceed to deprivation as he sees Cause Now Contumacy is a causa of a Forfeiture of his Office which is subject to the power of the Visitor by the original Rules of the Foundation and to evade or contumaciously to refuse or deny a Submission to that Power is an Offence against the Duty of his Place and consequently a just Cause of Deprivation so that upon the whole Matter 't was inferred and urged that the Bishop hath a Visitatorial Power vested in him to deprive the Rector without consent of the four Senior Fellows And 2. that the Justice of the Sentence is not examinable in Westminster-hall And 3. that if it were and the Cause necessary to be shewn here was a good one an affronting the very Power of Visiting and fetting up for Independency contrary to the Will of the Founder and therefore it was prayed that the Judgment should be reversed On the other side 't was argued by the Counsel with the Judgment That this Sentence was void that 't was a meer Nullity that this proceeding had no Authority to warrant it and that it being done without Authority 't is as if done by a meer Stranger and whether it be such an Act or not is examinable at Law for that the Power of a Visitor must be considered as a meer Authority or a Trust and it is one or rather both and then either way 't is examinable for every Authority or Trust hath or ought to have some Foundation to warrant it and if that Foundation which warrants it hath limited any Rules or Directions by which it is to be executed then those Directions ought to be pursued and if they are not 't is no Execution of the Authority given or Trust reposed and if not 't is a void Act a meer Nullity and consequently 't is that of which every Man may take notice and advantage Then 't was said That it must be agreed that of a void thing all Persons may take advantage and contest it in a Collateral Action and that altho' it have the form and semblance of a Judicial Proceeding and for this was cited the Case of the Marshalsea's 10 Rep. 76. as a full Authority the Resolution was That when a Court hath no Jurisdiction of a Cause there all the proceeding is coram non judice and Actions lye against any Person pretending to do an Act by colour of such Precept or Process without any regard to its being a Precept or Process and therefore the Rule qui jussu judicis aliquid fecerit non videtur dolo malo fecisse quia parere necesse est will not hold where there is no judex for 't is not of necessity to obey him who is not Judge of the Cause and therefore the Rule on the other side is true judicium a non suo judice datum nullius est momenti and so was it held in the Case of Bowser and Collins 22 Edw. 4.33 per Pigot and 19 Edw. 4.8 And therefore if the Court of Common Bench held Plea of an Appeal of Felony 't is all void but it must be owned that the meer erroneous procedure of a Court which hath a General Jurisdiction of the Subject Matter is not examinable in a Collateral Action whether upon true Grounds or not and yet if it be a limited Jurisdiction and those limits are not observed even that is coram non judice and holds with respect to Courts held by Authority of Law which are much stronger then the Cases of Power created or given by a private Person A Sheriff is bound by Law to hold his turn within a Month after Michaelmas and he holds it after the Month and takes a Presentment at that time if that be removed into the King's Bench the Party shall not answer it but be discharged because the Presentment was void coram non judice for that the Sheriff at that time had no Authority and yet in that Case his Authority and Jurisdiction extended to the Person and Thing The same Law for a Leet unless Custom warrants the contrary and then that Custom must be pursued The Commissioners of Sewers have a limited Authority and if the number of Persons or other Requisites mentioned in their Commission be not pursued what they do which exceeds it is void and yet they have a kind of Legislative Authority so is it in Sir Henry Mildmay's Case 2 Cro. 336. and there they had an Authority both of Thing and Person but did not observe the Rules prescribed in the Gift of that Authority according to the 23 Hen. 8. cap. 5. and no reason could or can be given for that Resolution but that it was a particular limited Authority And then to apply this to the present Case the Sentence in question can no more aggrieve the Defendant then an Order pronounced or made by a non Judex if it be not agreeable to the Power given by the Statutes and this appears further from Davis's Rep. 46. where the same Distinction is allowed Nay in some Cases the Award of a wrong Process is void as if by a Steward of a Mannor Court that a Capias should issue where the same doth not lye but only an Attachment Turville and Tipper's Case Latch 223. A Court of Pypowders hath Jurisdiction of an Action of the Case yet if it holds Plea of Case for Slander 't is all void tho' the words were spoken within the Boundaries of the Fair because the Jurisdiction is limited so that if the Thing the Time the Person or the Process be not regarded according to the Authority given 't is all void and an Advantage may be taken of it by any Body where the Plaintiff Claims or makes his Demand by colour of such Act. 'T was further argued That the Reason given in that Case of Latch is because the Custom which gave him his Authority gave him
person As to the Objection from Appleford's Case Sid. 71. there that Writ was fully answered and they could not Examine into the truth and falsity of that Answer but must leave the party to his Action and it doth not thence follow That in an Action there 's no remedy But the strongest Objection is that in pleading a Deprivation you need not shew the Cause and it must be taken sor just and good as Moore 781. Jones 393. Moore 228. 2 Roll's Abridg. 219. 9 Edw. 4.25 that need only shew by whom All these stand upon the same foundation they were by Authority Ecclesiastical and must stand till Repealed and even those Cases of the High Commission Court they were by the course of the Ecclesiastical Law which was saved to them by the Proviso in 1 Eliz. and therefore shall be intended so till the contrary appear and even there 't was debito modo privatus which implies all due requisites but here the whole is disclosed upon a special Verdict 't is not found here that he was duly deprived but that he was deprived after such a manner which if it appears to have been without Authority must be null As to Ley's Opinion in Davis 47. that a Sentence of Deprivation in case of a Donative by an Ordinary was effectual in Law till Reversed that 's not Law for 't was all coram non judice Bro. Praemunire 21. Nat. Br. 42. the Ordinary cannot visit a Benefice Donative Then they Object That this is an Elemosinary interest and the Rector took it under those terms of subjection to such a Visitor but that is the Question what those terms are and the consequences of such an Opinion may be dangerous to the Universities those Nurseries of Learning and good Manners 't is to make them too precarious and dependent upon will And as to the pretence that the Land was the Founders and he might dispose of it at pleasure it was answered that before the Gift the Lands and the Profits and the Ownership were all subject to the Common-Law and the Owner could not give such a Power as is pretended no more than he could oblige all differences about his Estate to be finally determined by a particular person and his Heirs or Successors no Absolute Power can be fixed in this Nation by Custom but rather then the same shall be allowed the Custom shall be void 1 Inst 14. Davis 32. 2 Roll's Abridg. 265. Copyholds were Anciently at mere will and pleasure but the Lord is now obliged to and by certain Rules by our Law the Power of Parents over Children is qualified and restrained 't is no Argument to say that the Visitor comes in loco or vice fundatoris for the Alienation and the Statutes did oblige even himself and though perhaps if no Statutes had been made his Visitatorial Power had been much larger yet since 't is limitted to once in five Years and his Acts to be with others consent 't is as much as if he had given the Colledge a priviledge of exemption by Words Express from any Visitation at all other times and in all other manners than those which are mentioned then was Cited the Case of Terry and Huntington in Scaccar ' Trin. 20 Car. II. in Hardres's Rep. 480. before Sir Matthew Hale Trover for Goods seized by Warrant of the Commissioners of Excise the Query was when they adjudged low Wines to be strong Wines perfectly made upon 12 Car. II. cap. 23. whether it might be drawn in Question again by an Action in Westminster-Hall and held it might though they were Judges and though the Statute gave an Appeal and the reasons given there seem to reach this Case because they had a stinted limitted Jurisdiction and that implies a Negative viz. that they shall not proceed at all in any other Cases and that special Jurisdictions might be and frequently were circumscribed 1. with respect to place as a Leet or a Corporation Court 2. with respect to persons as in the Case of the Marshalsea 3. with respect to the subject matter of their Jurisdiction And if Judgment be given in another place or upon other persons or about other matters that all was void and coram non judice and though 't was objected that strong Wines were within their Jurisdiction and that 't was only a mistake in their Judgment yet it appearing upon the special Verdict that they were low Wines the Action was held maintainable this is so plain it needs no Application Then it was argued that this Sentence was void 1. because there was no Authority to visit at this time there having been a Visitation by the Commissary within five Years before that no words in the Statute make him a Visitor generally but only secund ' stat ' i.e. upon request or without request a quinquennio in quinquenium Semel now here 's no request found then the Act of Dr. Masters as Commissary is an exercise of the Visitor's Office Colmer's Appeal was to the Bishop as Visitor Semel implies a negation of having it more frequent according to Grammar it signifies once and not often er or once for all If Semel comes alone without any other Particle then 't is but once and if with another as ne Semel 't is not once or never and the liceat Semel can have no other Construction it can't mean once at the least as was argued below especially as opposed to request and no Argument can be drawn from the necessity of frequent Visitations for that Evils are not to be presumed and over inferior Members there 's a Power in the Rector and four Seniors now Dr. Masters was not requested by the Colledge nay they protest against it in some Degree i. e. so far as relates to Colmer's restitution the Oath of a Scholar being against Appeals and the Oaths and the Contents of them are to be deemed part of their Constitution But supposing that Business might be examined as a thing proper for Consideration when an inquiry is made into the State of the College and the admission continuance and removal of the Members is certainly one Article of such inquiry yet that must be done in Visitation and as Visitor for there 's no other Power found in the serdict but that 2. Admitting that no Action of Dr. Masters to be Visitation yet this Sentence is void because it held above three days and the Statutes say after three days it shall be taken pro terminat ' dissolut ' On the 16. of June he comes with intention to visit doth an Act proper to his Office and Business examines the Summoner about the Citation if he had come and only examined and made no Decree it had been a Visitation and either 't is a quinquennial one of it self or it is a Commencement of one and either one way or other it makes the Deprivation void 't is afterwards entred as a Visitatorial Act Eundem actum pro parte hujusmodi negotii Visitationis
command them in Ireland to do Execution there St. John vers Cummin Yelv. 118 119. 4 Inst 72. If Writ be abated in C. B. and Error brought in B. R. and the Judgment be reversed shall proceed in B. R. and 1 Rolls 774. to the same effect Green vers Cole 2 Saund. 256. The Judges Commissioners gave the new Judgment 'T is true in Dyer 343. the opinion was that he was only restored to his Action and then Writs of Error were not so frequent The Judgment may be erroneous for the Defendant and yet no reason to give a Judgment for the Plaintiff as in Slocomb's Case 1 Cro. 442. the Court gave a new Judgment for the Defendant therefore it properly belongs to the Court which doth examine the Error to give the new Judgment the Record is removed as Fitzh Nat. Brev. 18 19. on false Judgment in ancient Demesne v. 38 Hen. 6.30 and Griffin's Case in Error on a quod ei deforceat in 2 Saunders 29 30. new Judgment given here In the Case of Robinson and Wolley in 3 Keeble 821. Ejectment Special Verdict Judgment reversed in the Exchequer Chamber and they could never get Judgment here the Court of Exchequer Chamber not having given it and in the principal Case after several Motions in the Court of King's Bench the Remittitur not being entred there a Motion was made in Parliament upon this Matter and a new Judgment was added to the Reversal that the Plaintiff should recover c. Dr. William Oldis Plaintiff Versus Charles Donmille Defendant WRit of Error to Reverse a Judgment in the Court of Exchequer affirmed upon a Writ of Error before the Lord Chancellor c. The Case upon the Record was thus Donmille declares in the Exchequer in placito transgr ' contempt ' c. for a Prosecution contra regiam prohibit ' and sets forth Magna Charta that nullus liber homo c. that the Plaintiff is a Freeman of this Kingdom and ought to enjoy the free Customs thereof c. that the Defendant not being ignorant of the Premisses but designing to vex and aggrieve the Plaintiff did in Curia militari Henrici Ducis Norfolk ' coram ipso Henrico Com' Mareschal ' Exhibit certain Articles against the Plaintiff c. that Sir Henry St. George Clarencieux King at Arms was and is King at Arms for the Southern Eastern and Western Parts of the Kingdom viz. from the River of Trent versus Austrum and that the Conusance Correction and Disposition of Arms and Coats of Arms and ordering of Funeral Pomps time out of mind did belong to him within that Province and that the Plaintiff having notice thereof did without any Licence in that behalf had and obtained paint and cause to be painted Arms and Escutcheons and caused them to be fixed to Herses that he provided and lent Velvet Palls for Funerals that he painted divers Arms for one Berkstead who had no right to their use at the Funeral and did lend a Pall for that Funeral and paint Arms for Elizabeth Godfrey and marshalled the Funeral and the like for Sprignall and that he had publickly hanging out at his Balcony Escutcheons painted and Coaches and Herses and other Publick Processions of Funerals to entice People to come to his House and Shop for Arms c. That the Defendant compelled the Plaintiff to appear and answer the Premisses c. The Defendant in propria persona sua venit dicit That the Court of the Constable and Marshal of England is an ancient Court time out of mind and accustomed to be held before the Constable of England and the Earl Marshal of England for the time being or before the Constable only when the Office of Earl Marshal is vacant or before the Earl Marshal only when the Office of Constable is vacant which Court hath time out of mind had Conusance of all Pleas and Causes concerning Arms Escutcheons Genealogies and Funerals within this Realm and that no other Person hath ever intermeddled in those Pleas or Affairs nor had or claimed Jurisdiction thereof and that the Suit complained of by the Plaintiff was prosecuted in the said ancient Court of and for Causes concerning Arms Escutcheons and Funerals That by the 13 Rich. 2. 't was enacted that if any Person should complain of any Plea begun before the Constable and Marshal which might be tried by the Common Law he should have a Privy Seal without difficulty to be directed to the Constable and Marshal to Supersede that Plea till discussed by the King's Counsel if it belongs to that Court or to the Common Law prout per Statut ' ill ' apparet and that the said Court time out of mind hath been tant ' honoris celsitudinis that it was never prohibited from holding any Pleas in the same Court aliter vel alio modo quam juxta formam Statut ' praed ' Et hoc parat ' est verificare unde non intendit quod Curia hic placitum praed ' ulterius cognoscere velit aut debeat c. The Plaintiff demurs and the Defendant joyns From the Exchequer Court this was adjourned propter difficultatem into the Exchequer Chamber and afterwards by advice of the Judges there the Court gave Judgment for the Plaintiff which was affirmed by the Chancellor and Treasurer c. And now it was argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was erroneous and fit to be reversed And first to maintain the Court as set forth 't was insisted on 1. That when there was a Constable and Marshal the Marshal had equal Power of Judicature with the Constable as each Judge hath in other Courts 2. That the Constable had in that Court power of Judicature alone when there was no Marshal And 3. That the Marshal had the like when there was no Constable That they had both equal power of Judicature appeared by all their Proceedings by their Libels or Bills in the Case of John Keightley Esq against Stephen Scroop The Libel is In the Name of God Amen Before you my Lords the Constable and Marshal of England in your Court of Chivalry and prays that the said Stephen by their Sentence definitive may be punisht 1 pars Pat. 2 Hen. 4. m. 7. And the same Stephen libelled against Keightley to the thrice Honourable Lords the Constable and Marshal of England So the Libels were directed to both and both sate judicially The same appears by the Sentence or Judgment given in that Court Bulmer libelled against Bertram Vsau coram Constabulario Mareschallo qui duellum inter partes allocaverunt assignaverunt locum tempus Rot. Vascor ' 9 H. 4. m. 14. It doth likewise appear to be so by the Appeals from their Judgments to the King they are both sent to to return the Rolls of their Judgments Rot. Claus 20 Edw. 1. m. 4. In the Appeal brought by Sir Robert Grovesnor against Richard Scroop 't is upon
the Common Law but much more so upon a Statute Besides the latter Statute which gives a Privy Seal doth not Repeal or alter the Law then in being 't is an Affirmative Law and that seldom or never works any change or alteration in what was before any otherwise then by Addition or Confirmation and in truth this is only a further remedy and is far from declaring a Prohibition not to lie the meaning might be to give a Privy Seal immediately even in vacation time the preamble complains so much of the Grievances that it cannot be supposed to Design any thing in favour of them or to prevent the restraint Suppose between the 8 and the 15 Rich. II. an excess of Jurisdiction had been usurped as in this Case will any Man say that a Prohibition would not then have lain and if it would can any Man say that the Statute pleaded doth take it away or Prohibit such Writ of Prohibition And the 11 Hen. IV. 24. ordains that all the Statutes concerning the Court of Constable and Marshal shall be duly observed and if so the 8 Rich. II. as well as the 15 Rich. II. are within that ordinance and if so a Prohibition lies as well as a Privy Seal and both are little enough to keep that Court within its due bounds and limits 2. It was argued That the proceeding upon these Articles was an intermedling with a subject matter properly determinable at Common-Law here 's no contract or deed of Arms no Mis-behaviour in War nothing of that nature which their own Statute says belongs to them Rushworth's II. Vol. 1054. he frequented the Court for four years together he observed no Cases there but for Words and one or two as Delaware's Case about abusing an Honourable Family by assuming to be a branch thereof here 's no such thing but express Articles for exercising of a lawful Trade 't is not causa armorum it doth neither concern Warlike matters nor Honour a Funeral Ceremony can never be within their Power this is a plain Accusation for a wrong to one of their Officers the Articles charge that Sir Henry S. George by his Office within his Province hath the ordering of these matters and the party hath medled therein without his License he says 't is lawful and the exercise of a lawful employment they say 't is otherwise because it belongs to another Man's Office then 't was admitted by the Council for the present to be so that Sir Henry was an Officer by Letters Patents under the Great Seal of England which by the way makes the Office and rights of it to be of Common-Law Conusance and the Patent is set forth at large in Prinne on 4 Inst 64 65. and that the King at Arms hath such a right yet if any Man intermeddles or incroaches upon that Office 't is not a breach of the rules of Honour and not relating to Arms but a plain injury at Common-Law and an Action lies for it as it doth for the disturbance of any other Office or Franchise In 4 Inst 126. 't is said that they do upon request Marshal Funerals but supposing they alone ought to do it then an Action lies This is merely a question whether the Letters Patents do carry such a sole priviledge suppose nul tiel record be Pleaded to them when Pleaded or Inrolled and without producing them suppose non concessit Pleaded to them when produced how shall these issues be tried Suppose they awarded a satisfaction to be made to Sir H. S. by the gift of a Summ of Money and he should afterwards bring an Action at Law for the same Cause will the proceeding in the Court of the Earl Marshal be a barr the Fact alledged in these Articles comes within none of those particulars supposed to be belonging to this Court in 1 Inst 391. It matters not whether these were publick Funerals as was questioned in Parker's Case Sid. 352. and in 2 Keble 316.322 but the Query here is if this be a point of Honour or whether it be not about the right of an Office and if it be the latter they have no Power to determine it The Heralds are Officers attendant upon that Court but it doth not follow that that Court can judge of the nature or extent validity or operation of their Letters Patents no more than the Court Christian can try the right or Freehold of a Chancellors or Registers Office The Earl Marshal cannot License the doing this in prejudice of the Heralds or acquit the party if does it for he still stands liable at Law the Herald hath a Freehold in it and may bring his Action notwithstanding Then 3. 'T was argued that admitting that no Prohibition did lie to the Court of Honour or that there was no cause for such Prohibition yet it ought to be granted to this pretended Court which is not within their Statute The true Court is before Constable and Marshal it is a Court by Prescription and cannot be altered but by Act of Parliament All our Books which describe the Court mention it to be before both 4 Inst 125. Crompt Jurisdiction 82. 1 Inst 74. Stamford 65. The Constable is the Chief and so are the Old Books and 37 Hen. 6.20 expresly before the Constable and Marshal The Statutes which mention the Court do all take notice of it as held before both the 8 Rich. 2. and that which they Plead do describe it so and the 1 Hen. 4. Cap. 14. the 13 Hen. 4.4.5 all Attainders are Pleaded to be before both Cambden who was an Herald in his Commentary de Etymologio antiquitate officio Comitis Mareschalli Angliae fol. 87. 't is published at the end of his Latin Epistles which are in 4to Printed for Chiswell 1691. he endeavours to advance the Office of Earl Marshal and searches for the Etymology and after all makes him but an Harbinger and tells us when the Title Mareschallus Angliae was first used and how it hath been enjoyed and by whom and of what Families and afterwards 91. lessens his Character much and derives the Office of Marshal of England from that of Marshal of the Houshold which he describes to disadvantage the same is likewise in Fleta lib. 2. cap. 5. But this is observable which Cambden says that the greatest increase of the Authority of this Office hath been since there were no Constables for the Kings since that time have referred many things to them which in former times were proper for the Constable neither had the Marshal any precedency in respect of his place until King Hen. 8. Anno 31. by Parliament Assigned him place next to the Lord Constable and before the Lord Admiral all which shews that the Earl Marshal never had that Authority time out of mind to hold this Court before himself alone as is pretended during the vacancy of the Office of Constable In November 1640. 't was Voted by the House of Commons upon a report from a Committee of some
good for them and that they had the like Power of Appeals Writs of Error and Impeachments c. and that the Cognizance of such Appeals in England would produce great inconveniencies by making poor people to attend here whereas they might with less trouble and expence have Justice at home that this did agree with the reasons of that Ancient Statute 4 Inst 356. that persons having Estates in Ireland should Reside in that Kingdom else half of their Estates should go to maintain the Forts there That this practice of receiving Appeals here would be vexatious to the people of that place and that no Court could have Jurisdiction but by grant or prescription and that there could be no pretence for either in this place Then was it ordered in these or the like Words Whereas a Petition and Appeal was offered to the House the Day of last from the Society of the Governour and Assistants London of the New Plantation in Ulster in the Kingdom of Ireland against a Judgment given by the Lords Spiritual and Temporal of Ireland in Parliament there Assembled on the day of last upon the Petition and Appeal of William Lord Bishop of Derry against the Decree or Orders made in the said Cause in the Court of Chancery there Whereupon a Committee was appointed to consider of the proper method of Appealing from Decrees made in the Court of Chancery in Ireland and that pursuant to the Orders of the said Committee and a Letter sent to the Lords Justices of Ireland by Order of this House several precedents have been transmitted to this House by the said Lord Justices Copies whereof were ordered to be delivered to either side After hearing Counsel upon the Petition of the said Society of London presented to this House praying that they might be heard as to the Jurisdiction of the House of Lords in Ireland in receiving and judging Appeals from the Chancery there as also Counsel for the Bishop of Derry after due Consideration of the Precedents and of what was offered by Counsel thereupon It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament Assembled That the said Appeal of the Bishop of Derry to the House of Lords in Ireland from the Decree or Orders of the Court of Chancery there made in the Cause wherein the said Bishop of Derry was Plaintiff and the said Society of the Governour and Assistants London of the New Plantation in Ulster in Ireland were Defendants was coram non judice and that all the proceedings thereupon are null and void and that the Court of Chancery in Ireland ought to proceed in the said Cause as if no such Appeal had been made to the House of Lords there and if either of the said Parties do find themselves Agrieved by the said Decree or Orders of the Chancery of Ireland they are at liberty to pursue their proper Remedy by way of Appeal to this House Sir Caesar Wood alias Cranmer versus Duke of Southampton APpeal from a Decree in Chancery the Case was thus Sir Henry Wood the Appellant's Unkle makes a Settlement in Consideration of a Marriage to be had between his Daughter Mary and the Duke c. to the uses following i.e. in Trust to Receive and Pay out of the Profits 450 l. a Year to the Lady Chester for the Education and Maintenance of his Daughter till twelve years of Age then 550 l. a year till Marriage or Seventeen years of Age which should first happen and in Trust to pay the Residue of the Profits to the Duke after Marriage he first giving Security to the said Trustees to provide Portions and Maintenance for the Daughters of the Marriage equal to the Sum he should receive and in case there should be none then the same Money to remain to the Respondent and if the said Mary should die before Marriage or Age of Seventeen years to such Uses as Sir H. W. should appoint And if Mary after Sir Henry's death die under Sixteen the Respondent then unmarried to any other Woman or after and before Seventeen the Respondent then living and unmarried or if before Seventeen she should marry any other or if she should refuse the Respondent then 20000 l. out of the Profits to the Duke But if the said Marriage shall take effect after Mary's Age of Sixteen years and she shall have Issue Male by the Respondent then for the better Settlement of the Premisses upon the Issue Male and a more ample Provision and Maintenance for the Respondent and his Wife and the longest Liver of them in Trust for the said Duke and Mary for and during their Lives and the Life of the longer liver of them and after their Deaths to the first Son c. in Tail Male and for default of Issue Male to the Daughters And for default of such Issue in Trust for such Persons only as Sir Henry should appoint and in default thereof to the right Heirs of Sir Henry Sir Henry W. at the same time makes his Will tho' dated after the Settlement reciting that he had settled the Premisses upon the Duke and Mary for their Lives and the Life of the Longer liver of them c. and confirms it and in Case the said Martiage should not take effect according to the Limitations of the Settlement or if the said Respondent should die without Issue by Mary or if he have Issue by her and that Issue die without Issue then the Remainder to Mary for Life and afterwards to her first Son and after several mediate Remainders then to the Appellant for Life c. and after to Thomas Webb c. Sir Henry Wood dies the Marriage between Mary and the Duke afterwards takes effect upon her arrival to years of Consent and they lived in that state till she was near Seventeen years of Age and then she dies without Issue The Court of Chancery decreed the Profits of the Estate to the Duke for Life It was argued for the Appellant That here was a precedent Copulative Condition that if the Marriage take effect after Sixteen and there be Issue then to the Duke and neither of these being in the Case the Decree is not consistent with the positive words of the Settlement for that the Duke was to have it upon no other terms That by this Settlement the Duke was thus provided for 1. If the Marriage did not take effect by Mary's refusal or taking another Husband the Duke was to have 20000 l. 2. If the Marriage did take effect and Issue was had then the Duke was to have an Estate for Life but not otherwise that the words are plain and certain that there must not only be a Marriage but Issue Male between them that tho' it should be agreed to be a good Marriage within the intention of the Settlement she living till after Sixteen years of Age yet when a Condition Copulative consisting of several Branches as this doth is made precedent to any Use or
Demurrers to Declarations Pleas Replications quod Narr ' vel placit ' pred' Materia in eodem content ' minus sufficient ' in Lege existunt ad quam vel quod the party necesse non habet nec per Legem terrae Tenetur aliquo modo respondere i. e. 't is good for nothing 't is insufficient the Court in their Judgments upon the insufficiency of the Plea do always say quia minus sufficien ' existit Then it was argued That it is a good Plea to all intents and purposes from the nature of the thing and the impossibility of making it more particular and certain 2. From the sufficiency of it to all intents and purposes of Tryal 3. From the Precedents and those of Antiquity which warrant this form of pleading 4. From the mischiefs and inconveniencies which must follow and ensue if a greater particularity were required 1. From the nature of the thing and the impossibility of making it more particular and certain if the Bishop were bound to set down in particular and at large every point of Learning wherein this poor wretch was and is deficient 't would be a Pleading like to a justification of an Action done by a private Person and not like to the Pleading of the Act of a Judge which this is 't would be so large as to render it impossible for to joyn an Issue thereupon and then they would have demurred with a Cause because multiplex duplex incertum perplex ' and the rest of our usual Adjectives upon those occasions the Assignment of several and many particulars would have been double and good cause of Exception because one particular might be found true and another not and the Assignment of one particular would have been adjudged insufficient for then they would have said that Learning is of a Complex nature and if a Man should fail in answering any one particular tho' common Question yet he might be qualified in general And therefore the Assignment of one defect tho' never so gross shall not make a Clerk minime capax and therefore no good Plea For if a particular be Assigned that would not prove a general Defect of knowledge according to the words of the Law which is the only thing that could make him incapable ad habend ' beneficium cum Curia Animar ' and therefore the Bishop as a Judge returns him in literatura insufficiens ea de causa minime capax and the special instances would have been Evidences upon a new Tryal or Examination before the Arch-Bishop Now this cause of refusal distinguishes the case from all others that they can insist upon all other inabilities of a Clerk depend upon one single point as Bastardy Villenage Outlawry Excommunication Lay-man Under-age or Ecclesiastical Infancy So all Crimes must have their foundation from a particular Act as Adultery Perjury Simony c. In these it shall not be enough to Plead that he was inhabilis generally or criminosus generally ideo inhabilis because no body can be criminosus but he that hath done some particular Crime and that is to have a several Tryal according to its respective nature if it be an Ecclesiastical Offence then there is a particular method of Tryal if a Temporal then another and so says Coke 2 Inst 632. and therefore a particularity is required there but here 't is all tryable by the same way viz. a new Examination before the Arch-Bishop Here the matter it self admits of no greater certainty for that 't is a general deficiency of Learning only which can make an incapacity of discharging the Pastoral Office it is a matter that must appear by a variety of Questions and cannot be proved by any one single instance whatsoever This is the true reason and difference why in several Cases general Pleading hath been denied and why in this Case it hath been always used and never excepted against Then it was argued That this Plea was sufficient to all the intents and purposes of Tryal and Determination By our Law that Plea is sufficiently certain which may be Tryed without inveigling either Court or Jury that is it must be intelligible and plain and this surely is plain enough the Ordinary had a Power to refuse him for want of Learning sufficient to enable him to discharge his Pastoral Office he Pleads that he was Minus sufficien ' in Literatura this is to be tried by the Certificate of the Arch-Bishop or the Guardian of the Spiritualities during a vacancy and that is evident by 39 Edw. 3.1 2. 40 Edw. 3.25 and from Speccot's Case 5 Rep. 7. There never was an Objection made to the uncertainty of any Plea if the Matter could be fairly reduced to an Issue for a Trial now here the Court might certainly have written to the Archbishop to have known utrum this Creature were minus sufficiens in Literatura ea Ratione inhabilis and the actus Curiae of the Bishop would have been Evidence before his Grace and he might have certified that he was or that he was not sufficiently Learned No say they the Court must not write to the Archbishop to know that till it be said in what Points of Learning he was defective and if these shall be thought material Parts of Learning for a Rector then they must write to know if Hodder had them or not but if they think them not material for the Qualifications of a Pastor they must not write at all This is the true English of the Argument But it was argued That the Temporal Court is only to judge that the Cause of Refusal if true was a sufficient Cause and the Books are that a general default of Learning is a good Cause and this the Archbishop is to try And this is certain enough for to make an Issue or Question proper for that Trial. Besides A greater Latitude and Generality hath of late been allowed in pleading of Proceedings in Courts and before Judges then formerly In ancient days if a Man pleaded a Judgment in a Court in Westminster-hall they set forth the whole then they came to allow of a taliter fuit processum and an Abridgment of the Proceedings then came a Recuperavit only And this was because that all Proceedings in the Superiour Courts were to be presumed regular till the contrary were shewn But this was denied a long while to Inferiour Courts because these were tied to stricter forms and therefore were still forced to set forth the whole then they allowed a taliter fuit processum for them provided still they were Courts of Record But now they allow it in pleading of a Justification upon a Recovery in an Hundred Court because the whole must be given in Evidence so that such a formal Nicety in Pleading is not generally required now as was formerly Besides In Matters triable by the Spiritual Law there is always less particularity required in Pleading then in others triable in Courts Temporal as in Bastardy Divorce
whom of right it doth belong to grant that Office whensoever it shall be void It was then further insisted on and proved That there are in the nature of Clerks three considerable Officers of the Court of King's Bench The first and chiefest is the Clerk of the Crown called sometimes Coronator Attornat ' Domini Regis c. his Business is to draw all Indictments Informations c. in Pleas of the Crown This Officer being the chief Clerk in Court is always made by Patent under the Great Seal The second Officer is this the Prothonotary or chief Clerk for inrolling Pleas between Party and Party in Civil Matters He and his Under-Clerks do inroll all Declarations Pleadings c. in Civil Causes especially where the Proceedings are by Bill This Clerk files in his Office all Bills Declarations c. and all the Writs of this Court in Civil Matters are made by him and his Under-Clerks and tested by the Chief Justice And he hath the custody of all Returns of Elegits Executions Scire Facias's and the filing of all Villes every of which are in the Eye and Judgment of the Law in the hands of the Chief Justice whose Clerk this Officer is The third is the Custos Brevium who keeps all the Rolls and Records of Judgments in this Court which are also said to be in the custody of the Chief Justice And this Office when void is in his Gift and Disposal It was further shewn on the behalf of the Defendants That in the Statute of Edw. 6. against the Sale of Offices there is a Salvo to the two Chief Justices and Judges of Assize to dispose of the Offices in their disposition as they used formerly And ever since that Statute these two Offices of chief Clerk to inroll the Pleas c. and the Custos Brevium have without controul been disposed by the Chief Justice of the Court of King's Bench. And it is also observed That in the Grant of this Office to Mr. Bridgman the Plaintiff it is recited that Henly and Wightwick were debito modo admitted to this Office and yet they never had any Grant from the Crown nor any other Grant except that from the Chief Justice before mentioned Then to prove the Defendant's Title to the Office the Grant of the now Chief Justice to them for their Lives was produced and read and proved that they were admitted and sworn To answer all this Evidence there was produced the Copy of an Act of Parliament which was made in 15 Edw. 3. to this effect It is consented that if any of the Offices aforesaid which are other great Offices mentioned in the Act or the Controller or chief Clerk in the Common Bench or King's Bench by Death or other Case be ousted of their Office the King with the consent of the great Men c. shall put another fit person in such Office From whence the Plaintiff's Counsel would have inferred That the King had a right to grant this Office and that this Act was declaratory of such his Right and that all the Grants from the Chief Justices ever since that Act were but Usurpations on the Crown and that no Usage of granting it by the Chief Justices could prevail against the King's Right To this it was replied That the Act was repealed as did appear by the Record it self as well as by their own Copy produced And for a further Answer 't was said That the Office in question was not the Office mentioned in that Act for that Act mentions the chief Clerk of the King's Bench which is the Clerk of the Crown and so called in the 2 H. 4. the Statute against Extortion and he is in reality the chief Clerk in that Court and hath precedency of this Officer both in Court and elsewhere And that this Officer is not called chief Clerk in the King's Bench altho' he is the chief for inrolling of Pleas Civil in that Court And the constant Usage explains the meaning of that Act. And that the Officer called chief Clerk was meant to be the Clerk of the Crown for that that Office hath been always granted by Letters Patents according to that Act And the Office in question was never enjoyed one day by virtue of a Grant from the Crown The Defendants did further insist That it was a Scandalous Imputation upon all those chief Justices who were Persons of Probity and Virtue and had clear Reputations to surmise that they imposed and usurped upon the Crown as they must all have done if the right of granting this Place be in the King And Sir Robert Heath that was the King's Attorney took a Grant of the Office in question from the Chief Justice and upon his Admittance the right of the Chief Justice to grant it is affirmed upon Record Then all this Evidence on both sides being given and the same being strong on the Defendants behalf the Court proposed to the Plaintiff's Counsel to be Nonsuit which they would not but prayed the Court to direct the Jury some of them saying that they would take another Course And then the Court did briefly sum up the same and particularly the Evidence of the Act 15 Edw. 3. and what was urged from it by the Plaintiff and the Answers made thereto and left the Matter to the Jury upon the whole The Jury withdrew and after some time gave a Verdict for the Defendants Upon this Verdict the Counsel for the Plaintiff prayed leave to bring in a Bill of Exceptions and produced in Court and tendred to the three Judges to be sealed a Parchment Writing in form of such a Bill in which after a Recital of the Declaration and Issue in the Cause 't is alledged That the Plaintiff's Counsel produced in Evidence the Grant of the Office to the Plaintiff and that they shewed to the Court and Jury that the Office is of the Grant of the Crown And that to make out the Right of King Charles the Second to grant this Office to the Plaintiff they gave in Evidence the 15 Edw. 3. which in the Bill is set out at large and is in Substance as is before set forth And 't is further alledged in the Bill That the Justices refused to allow admit and receive the Allegations and Matters given in Evidence as sufficient to prove the Plaintiff's Title to this Office by reason whereof the Jury found That the Defendant did not disseize the Plaintiff and prays that the Justices would put their Seals to it according to the Statute of Westminster 2. cap. 31. The Justices upon reading this Bill did refuse to Seal it 1. Because 't is asserted therein That the Plaintiff's Counsel did show that this Office was of the Gift and Grant of the King whensoever it should be void whereas there was no such Evidence to show any such Right in the King offered or pretended to besides the Patent in question and the Act of Edw. 3. 2. That the Judges refused to allow admit and
Denbigh and Montgomery leaving three Daughters and Coheirs Mary Penelope and Susan Susan married Sidney Godolphin one of the present Appellants In July 1674. Mary and Penelope in consideration of 4000 l. paid to the said Mary by Richard Carew Esq and in consideration of a Marriage to be had and which was afterwards had between Penelope and the said Richard Carew by Lease and Release convey all those their two Parts of the said Lands in Denbigh Salop and Montgomery to Trustees and their Heirs to the use of Richard Carew for Life then to Penelope for Life for her Jointure then to the said Trustees and their Heirs during the Lives of Richard and Penelope to preserve contingent Remainders then to the first and other Sons of Richard and Penelope in Tail-Male successively And in default of Issue-Male to the Daughters of Richard and Penelope in Tail And in default of such Issue as to one Moiety of the said two Parts to the first and other Sons of the said Penelope by any other Husband in Tail the Remainder of all and singular the Premisses to the said Richard Carew and his Heirs for ever subject to this Proviso That if it should happen that no Issue of the said Richard upon the Body of the said Penelope should be living at the decease of the Survivor of them and the Heirs of the said Penelope should within Twelve Months after the decease of the Survivor of the said Richard and Penelope dying without Issue as aforesaid pay to the Heirs or Assigns of the said Richard Carew the Sum of 4000 l. that then the Remainder in Fee-simple so limited to the said Richard Carew and his Heirs should cease and that then and from thenceforth the Premisses should remain to the use of the right Heirs of the said Penelope for ever After this Mary intermarried with the Appellant Sir Evan Lloyd and a Partition was made of the Premisses and the same had been enjoyed accordingly ever since and Mr. Carew and his Lady levied a Fine to Mr. Godolphin and his Lady of his part who did thereupon by their Deed dated 23 Sept. 1676. covenant to levy a Fine of Mr. Carew's two Parts to such uses as he and his Lady should limit and appoint but have not yet levied the said Fine Richard Carew and Penelope his Wife to avoid all Controversies that might happen whereby the Estate of the said Richard Carew or his Heirs might be question'd or incumbred by the Heirs of Penelope and to the End to extinguish and destroy and barr all such Estate Right Title Equitable or other Interest as the said Penelope then had or her Issue and Heirs might have or claim to the same by any Power Settlement or Condition on payment of 4000 l. or otherwise to the Heirs of Richard Carew by the Heirs of the said Penelope and for the settling of the same on the said Richard Carew and his Heirs did in Michaelmas Term 1681. levy a Fine of the Share and Part allotted to them and by Deed of 10 Decemb. 1681. declare that the said Fine should be to the use of the said Richard for Life Remainder to Penelope for Life the Remainder to the said Richard Carew his Heirs and Assigns for ever And do further declare That the Fine agreed to be levied by the Appellants Sidney Godolphin and Susan his Wife by their Deed dated the 23 Sept. 1676. should be to the same uses and then direct the Trustees by the first Settlement to convey to those uses Penelope died without Issue in 1690. Richard Carew made his Will in Aug. 1691. and devised the said Lands to Sir John Carew Baronet his Brother subject to pay all his Debts and Legacies and made Sir John Carew his Executor In Decemb. 1691. Richard Carew died without Issue and Sir John Carew entred and was seized and possessed of the Premisses and paid 4855 l. for the Debts of Richard Carew Sir John Carew died and the Respondent Sir Richard Carew an Infant is his Son Heir and Executor The Appellants Mary and Susan claiming the Lands as Heirs to Penelope by virtue of the said Proviso in the first Settlement upon payment of the 4000 l. exhibited their Bill in Chancery to compel the Trustees to convey the Estate to them upon such payment Upon hearing of this Cause on Bill and Answer the Court ordered a State of the Case to be drawn which was as above and afterwards the Court assisted by the Chief Justice of the Common Pleas and Mr. Justice Rooksby seeing no Cause to relieve the Plaintiffs dismissed their Bill And now it was argued on behalf of the Appellants That such Dismission ought to be set aside and amongst other things it was insisted on in favour of the Appeal that this Proviso was not void that it was within the reason of the Contingent Limitations allowed by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk and there were quoted several Paragraphs in the Argument made by the said Lord Chancellor as that future Interests springing Trusts or Trusts Executory Remainders that are to emerge or arise upon Contingency are quite out of the Rules and Reasons of Perpetuities nay out of the Reason upon which the Policy of the Law is founded in those Cases especially if they be not of remote or long Consideration but such as by a natural and easie Interpretation will speedily wear out and so things come to the right Channel again That tho' there can be no Remainders limited after a Fee-simple yet there may be a Contingent Fee-simple arise out of the first Fee that the ultimum quod sit or the utmost Limitation of a Fee upon a Fee is not yet plainly determined that tho' it be impossible to limit a Remainder of a Fee upon a Fee yet 't is not impossible to limit a Contingent Fee upon a Fee that no Conveyance is ever to be set aside in Chancery where it can be supported by a reasonable Construction especially where 't is a Family Settlement Then these Paragraphs were applied and further urged That there could not in reason be any difference between a Contingency to happen during Life or Lives or within one year afterwards that the true reason of such Opinions which allowed them if happening within the time of the Parties lives or upon their deceases was because no Inconvenience could be apprehended thereby and the same Reason will hold to one year afterwards and the true Rule is to fix Limits and Boundaries to such Limitations when so made as that they prove Inconvenient and not otherwise That this Limitation upon this Contingency happening was the considerate Intention of the Family the Circumstances whereof required Consideration and this Settlement was the Result of it and made by good Advice That the Fine could not barr the Benefit of this Proviso for that the same never was nor ever could be in Penelope who levied the Fine As to the Pretence That if the
it Then as to the other Matter of the Damages which should have been inquired of upon the Demurrer 't was said That they were released upon Record and 't is plain that the Jury have found nothing upon that because the Conclusion of the Verdict doth shew that they inquired and found Damages only as to the concessit or assignavit they assess Damages for nothing else for if the Deed did pass the term then they find for the Plaintiff and assess Damages and if the term did not pass they find the Defendant Not guilty c. the Damages cannot therefore be for both for if they had found any for the Matter demurred upon it must have been with a si Contingat here 't is not so And tho' the Special Fact found had been against the Plaintiff it might have been for him upon the Demurrer and consequently the conditional finding of the Damages here can never be as to that Then it was further said That this might be supplied by an Inquest of Office in case it had not been released and there was cited Cheyney's Case Mich. 10 Jac. 1. 10 Rep. 118 119. Writ de Valore maritagij Issue on the Tenure and Verdict for the Plaintiff and no Value found of the Marriage and held ill because they say an Attaint lyes upon it that being the Point of the Writ and there the Rule is taken generally that where an Attaint lyes upon the finding the omission of finding such Matter cannot be supplied by a new Writ of Inquiry because such Writ of Inquiry would prevent the Party of the Benefit of his Attaint Then the Book says further That the Rule is that the Court ex Officio ought to inquire of such thing upon which no Attaint lyes and there the omission of its being found in the Verdict may be supplyed by a Writ of Inquiry of Damages as in the case of a Quare Impedit Poyner's Case Dyer 135. Issue found for the Plaintiff but the Jury per negligence were not charged to inquire of the four Points Plenarty ex cujus Presentatione si Tempus Semestre and the yearly Value of the Church there a Writ of Inquiry lyes de novo because upon them no Attaint lyes as is the 11 Hen. 4.80 because as to them 't is only an Inquest of Office and the Book says further That all the Cases to the contrary of that Rule have passed sub silentio without due Advisement and were against the Rule of Law So in the Case of Detinue the omission of the Value in the finding is fatal because an Attaint lyes upon a false Verdict in that particular So that by the Case cited it may be only an Inquest of Office as to part which is the present Case In that Case of a Quare Impedit in Dyer is cited a President for it in the Old Book of Entries 110. which is a false Folio for 't is in 93. b. and there is the very Entry of the Writ setting forth a Recuperavit presentation ' virtute Breais de Nisi prius Et quia nescitur utrum Ecclesia plena c. And as the Case is in Dyer the Plaintiff did there as the Plaintiff doth here release his Damages and had a Writ to the Bishop Now in Heydon's Case 11 Rep. 6. 't is held that no Attaint lyes upon an Inquest of Office and therefore 't is that if in a Trespass against divers Defendants some plead to Issue and one suffers Judgment to go by Default the Damages found on the Issue shall be chargeable upon all and the Inquiry of Damages on the Judgment by Default shall stay because no Attaint lyes upon that 'T is there also said that attaint lyes only on a Verdict on the mise of the Parties In Trespass three Issues Non culp ' to one part Prescription for a Common to another part and the Cattle raptim momorderunt in going to take Common to another c. The Jury find one for the Plaintiff and another for the Defendant and inquire not of the third Issue at all the Plaintiff relinquishing his Damages on the third Issue prays Judgment on the Verdict for the first and held that this prevented all Error Mich. 13 Car. 1. B. R. Brown and Stephens adjudged 1 Rolls Abridg 786. Then as to the Case of Vastuman and Row 11 Car. 1. B. R. in 2 Rolls Abridg. 722. Trespass for an Assault Battery and taking Corn Special Plea to the Battery and Demurrer thereupon and Non culp ' to the taking the Corn the Jury find no Damages upon the Demurrer said there That when Judgment is for the Plaintiff on the Demurrer the Damages for it cannot be assessed on a Writ of Inquiry but a Venire Facias de novo for the whole 'T was now argued that that was expresly against the Rule in Cheyney's Case and that in the Case in Rolls 't is put with the addition of a dubitatur But if that be Law there needs no Writ of Inquiry in this Case because the Damages as to that part are released and for this there is the express Case of Bentham 11 Rep. 56. In Annuity the Parties descended to Issue found for the Plaintiff as to the Arrearages but no Damages and Costs 't was held an imperfect Verdict and that it could not be supplyed by Writ of Inquiry of Damages yet the Plaintiff releasing the Damages and Costs had Judgment for him and a Writ of Error was brought and the Insufficiency of the Verdict was assigned for Error but the Judgment was affirmed because the Plaintiff had released it Dyer 369 370. Ejection ' custod ' terre hered ' and ill because intire Damages and for the beres no Ejectment lyes yet the Damages being released he had Judgment for the Land And 't was said to be there held That insufficient finding of Damages and finding of none are all one If a Release of that which is ill found will help where such thing released is directly in Issue much more it should do so where the thing released is but obliquely inquired of and was not put in Issue to the Jury and then 't was repeated what was said before that the Special Conclusion helps and prevents the General Intendment which otherwise would be had as to the Damages being intire and therefore 't was insisted that this made no Error but the Judgment in the Kings Bench stood good notwithstanding this Exception Then the Counfel for the Defendant did likewise wave this as not being the Cause of the Reversal in the Exchequer Chamber Wherefore it was argued for the Plaintiff That this Assignment or Grant found in the Verdict is void and passed nothing for that either it passed the whole Term or no part of it and that immediately that this must be agreed Then 't was said that it could not pass the whole for so to do was contrary to the Intention of all the Parties to the good will of the Grantor and even to the hopes of