power lawfully not to abate it and us'd that last lawful power and not the first and wrong'd none in using it To this may be added That the Iudgment upon a simple Contract is the Act of the Court and compulsory to the Executor and he hath then no Election but must obey the Iudgment In conclusion though it were agreed That in the Action of Debt brought by Allington upon a simple Contract Iudgment ought not to have been given against the Defendant being Administrator but the Writ should have abated because the Administrator was not chargeable And though the Iudgment given were erroneous and for that cause reversible yet standing in force unrevers'd It is a good Barr to the Plaintiffs Action But lest this should countenance Iudges abating the Writ ex officio in such Actions brought or Plaintiffs to bring Error upon Iudgments given in such Actions I conceive the Law is clear That Iudges ought not ex officio to abate such Writ nor otherwise than when the Executor or Administrator Defendant in such Action demurrs and demands Judgment of the Writ and that Iudgment given against such Defendants not demurring to the Writ is not Erroneous unless for other cause If it be urg'd further That though a Iudgment obtain'd upon a simple Contract be a barr to an Action of Debt brought after upon an Obligation or to an Action of the Case upon an Assumpsit to pay mony as the present Case is Yet it should not barr if the Action upon which it was obtain'd were commenc'd pending a former Action upon an Obligation or upon an Assumpsit for mony in which the Intestate could not have waged his Law The answer is as before such Iudgment barrs until revers'd if admitted to be reversible as it is not But the Law is setled That wheresoever an Action of Debt upon Bond or Contract is brought against a man he may lawfully confess the Action and give way to a Judgment if there be no fraud in the Case although he have perfect notice of such former Suit depending nor is there any restraint or limit of time for confessing an Action brought upon a simple Contract more than upon a Bond. And to satisfie any Debt upon Obligation 5 H. 7. f. 27. b. Moore Scarleâ— Case f. 678. Crook 38 El. f. 462. Green Wilcocks Case before a Iudgment so obtain'd is a Devastavit in the Executor or Administrator and so it is to satisfie any latter Judgment if there be not assets to satisfie the first also So are the express Books to those points of 5 H. 7. per Curiam and Scarles his Case in Moore and Green and Wilcock's Case in Crook Eliz. Yet in 25 Eliz. when an Action of Debt for 100 l. was brought against an Executor in C. B. and pending that Debt was brought against him in B. R. for 100 l. which latter he confess'd and the Iudgment there had pleaded in Barr to the first Action And upon Question if the Plea were good Fenner and Walmesley held it good but Anderson Mead Wyndham and Periam argued to the contrary and that he ought to have pleaded the first Action pending to the second Action brought The Arguments of both sides you may see in Moore f. 173. Moore 25 El. f. 173. where it is left a Quere the Iudges doubting the Case but since the Law is taken That the Iudgment is a good barr to the first Action It will be still objected That if the Law be that Executors or Administrators may pay debts upon simple Contracts of the deceas'd to which they are not bound and thereby prevent the payment of a debt to which they are bound It is repugnant to Reason and consequently cannot be Law for that is in effect at the same time to be bound and not bound to pay For he who may not pay being bound is not bound at all For clearing this we must know Though Executors or Administrators are not compell'd by the Common Law to answer Actions of Debt for simple Contracts yet the Law of the Land obligeth payment of them For 1. Vpon committing Administration Oath is taken to administer the Estate of the dead duely which cannot be without paying his debts 2. Oath is taken to make true accompt of the Administration to the Ordinary and of what remains after all Debts Funeral Charges and just Expences of every sort deducted 3. This appears also by the Statute of 31 E. 3. c. 11. That Administrators are to administer and dispend for the Soul of the Dead and to answer to other to whom the dead persons were holden and bound which they cannot better do than by paying their debts And as this was the ancient Law and practise before in the Spiritual Court so by the new Act in 22 and 23 of the King for the better settling of Intestates Estates It is enacted accordingly that upon the Administrators accompt deductions be made of all sorts of debts This appears to be the ancient Law by the Great Charter c. 18. and long before by Glanvill in Henry the Second's time and Bracton in Henry the Third's time 4. And by Fitz-herbert in the Writ de rationabili parte bonorum the debts are to be deducted before division to the wife and children And upon the Executors accompt all the Testators debts are to be allow'd before payment of Legacies which were unjust if the payment of them were not due as appears by Doctor and Student Executors be bound to pay Debts before Legacies by the Law of Reason and by the Law of God for Reason wills that they should do first that is best for the Testator that is to pay debts which he was bound to pay before Legacies which he was not bound to give 2. It is better for the Testator his Debts should be paid Doct. Stud. l. 2. c. 11. for not payment of which his Soul shall suffer pain but none for not performing his Legacy The Ordinary upon the accompt L. 2. c. 10. f. 158 in all the Cases before rehears'd will regard much what is best for the Testator And I conceive the Ordinary may inforce the payment of Debts upon Contracts as well as Legacies or Marriage mony and no Prohibition lyes An Executor or Administrator may retain for his own satisfaction a Debt by single Contract due from the Testator or Intestate which he could not do unless the payment were lawful If at the Common Law the Executors payments of Debts upon simple Contracts were not just Why have the Iudges in all Ages given Judgment for the Plaintiffs unless the Defendant either Demurrs in the Commencement of the Plea or avoids the Debt by special matter pleaded and put in issue but he shall never in such case either Arrest the Iudgement or bring Error after Iudgment for that Cause And so it is agreed for Law in Read and Norwoods Case in Plowden where the Iudges had view of numerous Iudgments in that kind as there appears
But if he after the structure acquire or purchase a Water-course to it and grant it with the Appurtenances the Water-course passes because the Mill cannot be used without it So it is for the Mill-damm or Bank or the like So if he acquire an inlargement or bettering of his Water-course that additional water shall pass as pertaining how lately soever acquired So if a man grants his Saddle with all things thereto belonging Stirrops Girths and the like pass So if a man will grant his Viol the Strings and Bow will pass And the Pool was belonging and appertaining to the Water-work in this last sense as pertaining to the nature of the thing granted without which it could not be us'd for the Iury find Quod Stagnum praedictum fuit necessarium pro structura Anglicè Water-work praedict quodque eadem structura sine eodem Stagno operare non potuit And where a thing is so pertaining to the nature of the thing granted it is belonging and pertaining immediately as soon as the thing is erected and it is annexed to it And note the Iury do not find that aqua Stagni praedict but the Stagnum it self was necessary for the Water-work Nor do they find that the Water-work could not operare sine aqua Stagni but sine Stagno praedict And thereby they find that the Water and Soyl which Stagnum signifies was necessary for the work and it could not work without it Pasch 19 Car. II. Henry Stiles Plaintiff Richard Coxe Baronet Richard Coxe Esquire John Cromwell Thomas Merrett and Charles Davies Defendants In an Action of Trespass of Assault Battery and False Imprisonment 1. THE Plaintiff declares That the Defendants the last day of December in the Seventeenth year of the King in the Parish of St. Mary Bow in the Ward of Cheap in London assaulted wounded and kept him in Prison by the space of two days next following to his Damage of One hundred pounds 2. The Defendants plead They are not Culpable of the Trespass Assault Battery c. aforesaid 3. The Iury find Richard Coxe Esquire and Charles Davies not Culpable accordingly 4. And as to the rest of the Defendants they find specially That before the suppos'd Trespass that is the Eight and twentieth day of September in the Seventeenth year of the King one Richard Baughes Esquire one of the Iustices of the Peace of the County of Gloucester issued his Warrant under his Hand and Seal to the Constable and Tithingmen of Dumbleton in the said County to apprehend and bring before him the Plaintiff Henry Stiles and others to answer to such matters of Misdemeanour as on his Majesties behalf should be objected against them by Sir Richard Coxe Baronet then high Sheriff of the said County They find the Warrant in haec verba 5. That the said Warrant was afterwards and before the Trespass delivered to one Samuel Williams Constable of Dumbleton to be executed and that upon the said last day of December mentioned in the Declaration being Sunday immediately before Divine Service the Plaintiff sitting in a Seat of the said Church of Dumbleton by order of Richard Dasney Esquire his Master who claimed right to the said Seat the said Plaintiff being no Parishioner there nor dwelling in the said Parish the said Samuel being then Constable arrested the said Plaintiff 6. That the said Plaintiff at first resisted and refused to obey the said Warrant and after obey'd it That the said Samuel the Constable required the said Defendant Thomas Merret to assist him to convey him before a Iustice of the Peace But the said Samuel Thomas Merret and John Cromwell convey'd him to the House of the said Samuel in Dumbleton 7. Et tunc the aforesaid Richard Coxe Miles sent for the said Samuel at the House of the said Samuel in Dumbleton aforesaid Et praecepit eidem Samueli to lay the Plaintiff in the Stocks and thereupon the said Samuel John and Thomas convey'd the Plaintiff fromwards the way to the said Richard Baughes Iustice of the Peace and about Eleven of the Clock of the same day in the morning put the Plaintiff in the Stocks 8. They find the Act of 21 Jac. particularly cap. 12. And the Recital therein of the Act of 7 Jac. cap. 5. being an Act intitled An Act for easie pleading against troublesome and contentious Suits against Justices of the Peace Mayors Constables c. 9. And find particularly That it was Enacted by the said Parliament Quod si aliqua Actio Billa c. 10. But whether upon the whole matter by them found the said Sir Richard Coxe Baronet John and Thomas are Culpable they know not Et petunt advisamentum Curiae in Praemissis 11. And if upon the whole matter so found the Court shall think quod actio praedicta possit commensari in London Then they find the said Richard Coxe Baronet John and Thomas Culpable of the Trespass and assess damages to One hundred Marks and Costs to Three and fifty shillings and four pence 12. But if the said Court be of Opinion That the aforesaid Action could only be laid in the County of Gloucester then they find the said Richard Coxe Baronet John and Thomas not Culpable The words of the Act of 21 Jac. cap. 12. and which are particularly found by the Iury are 1. That if any Action Bill Plaint or Suit upon the Case Trespass Beating or False Imprisonment shall be brought against any Justice of the Peace Mayor or Bayliff of City or Town Corporate Headborough Portreeve Constable Tithingman c. or any of them or any other which in their Aid or Assistance or by their Commandment shall do any thing touching or concerning his or their Office or Offices for or concerning any matter cause or thing by them or any of them done by virtue or reason of their or any of their Office or Offices That the said Action Bill Plaint or Suit shall be laid within the County where the Trespass or Fact shall be done and committed and not elsewhere 2. And that it shall be lawful to every person and persons aforesaid to plead the general Issue and to give the special matter in evidence As by the Act of 7 Jac. cap. 5. 3. That if upon the Tryal of any such Action Bill Plaint or Suit the Plaintiff therein shall not prove to the Jury Trespass Beating Imprisonment or other Fact or cause of Action Bill Plaint c. was or were had made or committed within the County wherein such Action Bill Plaint or Suit shall be laid That then the Jury shall find the Defendant or Defendants in every such Action Bill Plaint or Suit Not guilty without having any regard or respect to any Evidence given by the Plaintiff touching the Trespass or other cause of the Action Bill Plaint or Suit c. 4. If Verdict shall pass with the Defendant or Defendants or if the Plaintiff therein become Non-suit or suffer any discontinuance thereof the Defendant or Defendants shall have such
double Costs and other Advantages as by the Act of 7 Jac. cap. 5. is provided The first Question upon this Special Verdict is Whether if any Officer in the Act mentioned or any in his assistance shall do things by colour of their Office not touching or concerning their said Office and shall be therefore impleaded Or if they or any of them shall be impleaded for or concerning any matter cause or thing by them or any of them done by pretence of their Offices and which is not strictly done by virtue or reason of their Office but is a misfeasance in Law shall have the benefit of this Act of having the matter tryed in the County where the Fact was done and not elsewhere If so 1. They shall not have the Tryal for any matter touching their Offices in the County where the Fact was done unless the Plaintiff please to lay it there and if he so pleas'd it might have been laid there before the Act of 21. which was purposely made to compel the laying of the Action where the Fact was done 2. By such Exposition of the Act the Action shall never be laid where the Fact was done for if it may be laid elsewhere at all if it be found upon the Tryal That the Officers question'd did not according to their Office there will be no cause to lay the Action in the proper County for the Iury where the Action is laid will find for the Plaintiff for the Misfeazance and if it be found the Defendants have pursued their Office wherever the Action is laid the Iury will find for the Defendants and then no cause to lay an Action in the County where the Fact was done So Quacunque via data the Act will be useless 3. If it can be laid in another County without hearing Evidence it cannot be known whether the Officer hath misdone or not How then can the Iury as the Act directs find the Defendants Not guilty without regard or respect to the Plaintiffs Evidence for then the Iury must regard the Evidence to find whether the Officer hath mis-done and not regard the Evidence at all to find the Officers Not guilty as the Act doth order Nor is there any inconvenience because by the Intention of Law whether the Officers have done justifiably or not without this Act of 21. the Action ought to be laid where the Fact was done and the Act is but to compel the doing of that where an Officer is concerned that otherwise fieri debuit though factum valet not being done The second Question is Whether upon the special points referred to the Court by the Iury they have found all the Defendants or any of them and whom Not guilty It hath been admitted at the Barr That the Defendants excepting Sir Richard Coxe cannot be found culpable by this Act of 21. and it being a Trespass that some may be guilty and not others which is true But the Question is not Whether some of the Defendants might have been found guilty and others not but whether as this Verdict is all or none must be Culpable 1. The Iury referr to the Court Si actio praedicta potuit commensari in London then they find all the Defendants culpable And if actio praedicta potuit commensari tantummodo in the County of Gloucester then they find all the Defendants by name Not Culpable So as the matter is Whether this individual Action brought joyntly against all the Defendants might be laid in London For that is the Actio praedicta not whether an Action might be laid in London for the Trespass against any of these Defendants and in that first sense Actio praedicta could not be in London for it could not be there laid as to some of the Defendants 2. Secondly they referr to the Court Whether Actio praedicta which is this Action jointly brought against all the Defendants could only be laid in the County of Gloucester and if so they find for the Defendants to which the Court must answer That this Action so jointly brought could only be laid according to Law ad omnem Juris effectum in the County of Gloucester 3. Thirdly if the Court should be of Opinion That the Action was well laid as to Sir Richard Coxe but not the rest the Iury find not him Guilty and not the rest for they find all equally Guilty or equally not Guilty 4. Fourthly That which differs his Case from the rest is That he was not assistant or aiding to the Constable for he bad that is praecepit or commanded the Constable to put the Plaintiff in Cippis But as to that the ancient Law was both adjudg'd in Parliament and allowed That it was contra consuetudinem Regni that a man should be condemn'd in a Trespass De praecepto or auxilio if no man were convicted of the Fact done It was the Case in Parliament of Bogo de Clare 18 E. 1. John Wallis Clerk entred his House and brought Letters of Citation from the Arch-bishop of Canterbury Some of the Family of Bogo made Wallis eat the said Process and Wax thereto affixed Et imprisonaverunt male tractaverunt For which and the Contempt to the King he brought his Action against Bogo who pleaded That he named no persons in certain nor alledg'd that the Fact was done by his command and demanded Iudgment thereupon and was discharged Notwithstanding by the Kings pleasure for so enormous a Trespass done in Contempt of the Church for the Contempt done within the Verge and in time of Parliament and for the bad Example Bogo was commanded to answer the King of the Trespass done in his House Et per Manupastos Familiares suos and a day given him to produce before the King and his Council those of his Family which was accordingly done but they who were said to have done the Fact were fled Et super hoc idem Bogo perit Judicium si de Praecepto missione vel assensu si sibi imponeretur ad sectam Domini Regis respondere debeat antequam factores principales aliquo modo de facto illo convincantur Whereupon Iudgment was given Et quia per consuetudinem legem Angliae Nullus de praecepto vi auxilio aut missione respondere debeat antequam factores aliquo modo convincantur Consideratum est quod praedictus Bogo ad praesens eat inde sinedie praedictus Jo. le Wallis sequatur versus factores principales prout sibi viderit expediri si voluerit six persons manuceperunt praedictum Bogonem ad habendum ipsum coram Domino Rege ad respondendum ipsi Domino Regi ad voluntatem suam cum praedicti factores de facto illo fuerint convicti si Dominus Rex versus eum inde loqui voluerit A Iudgment in Parliament at the Kings Suit That it was against the Custome and Law of the Kingdom to convict a man de praecepto auxilio aut missione in a Trespass before some who
put shorter than as it hath been open'd to be upon the Record It being a history of several Presentations to the Vicaridge of Burton Basset and of several suppos'd Titles so to present in the persons who presented The Questions therefore in this Case do arise from the causes of the Plaintiffs demurring to the Defendants Plea which as hath been insisted on are two 1. The first is That in a Quare Impedit Plaintiff and Defendant are both Actors and either of them as their right happens to fall out may have a Writ to the Bishop to admit his Clerk That therefore either of them must make out a sufficient Title For it will be unreasonable That a man should have a Writ to the Ordinary to admit his Clerk who hath made no Title appear to the Court why it should be granted him That the Law is clear the Plaintiff in a Quare Impedit must in his Count alledg a Presentation in himself or those from whom he claims and that therefore the Defendant should likewise so do But in this Case the Defendant in his Plea hath alledged no Presentation in any from whom he claims or in himself 2. The second cause of Demurrer insisted on is That the Defendant hath by his Plea traversed the appendency alledged in the Plaintiffs Count of the third part of the Advowson of the Vicaridge of Burton Basset to the third part of the Mannor and third part of the Rectory of Burton Basset whereas he ought to have travers'd the Presentation alledged by the Plaintiff in the Lord Wootton by whom the Plaintiff claims and not the appendency And divers Authorities have been pretended that so is the Law 1. As to the first cause of Demurrer It is true that in a Quare Impedit both Plaintiff and Defendant may be Actors and either have a Writ to the Bishop as the right falls out to be But it is not true that both are always Actors in a Quare Impedit For if the Defendant hath presented his Clerk and he be admitted instituted and inducted before the Quare Impedit brought the Defendant hath then no cause to have a Writ to the Bishop for the doing of that which is already done and consequently in such Case the Defendant is no Actor but a bare Defendant When a man hath presented and his Clerk is instituted and inducted he is at the end of his work and hath no more to do than to keep what he hath gotten for thereby he hath a full possession which is Title sufficient if there be not a better But the Plaintiff who is to recover that which he hath not must shew a good Title before he can recover or he shall never avoid the Defendants possession by shewing no Title or an insufficient which is the same with none It can be neither Law nor Common Reason for the Plaintiff to tell the Defendant you have no good Title and thence to conclude therefore I have The Plaintiff must recover if at all by his own strength and not by the Defendants weakness as is well urg'd and clear'd in Digbies and Fitzherberts Case in the Lord Hobart The Defendant hath alledged in his Plea a Title pro forma and that he hath presented by reason thereof and that his Clerk is instituted and inducted which is sufficient for the present and future time if no better Title be oppos'd to it without alledging any other Presentation in himself or any from whom he claims But if the Defendant were out of possession as the Plaintiff is he must then make out a good Title as the Plaintiff now must or else the Defendant should never have a Writ to the Bishop to admit his Clerk and in such Case only it holde true That the Defendant is Actor as well as the Plaintiff And in such Case he is to alledg a Seisin of the Advowson as the Plaintiff must in himself or those from whom he claims which can never be done without alledging a former Presentation that being the only actual Seisin of an Advowson for the cause why he should present to the present vacancy So as the not alledging a former Presentation will be no objection to the Defendants Title besides the Plaintiff hath alledg'd a Presentation both in his Ancessor Sir Thomas Temple of Reignalds and in himself of Manfell for him but I make no account of that for if the Defendant will take advantage of a Title admitted him by the Plaintiff he must take it as the Plaintiff gives it which in this Case the Defendant doth not For the Plaintiff by his Count makes the Defendants Ancestor and himself seis'd in their Demesne as of Fee of 2 Parts of 3 of the Mannor of Burton Basset and of a third part of the Advowson of the Vicaridge of Burton Basset as appendant to the said 2 Parts But the Defendant by his Plea saith he was seised in Fee of 2 Parts of 3 of the said Mannor and of the intire Advowson of the Vicaridge as appendant to the same 2 parts and so presented which is another Title than that admitted by the Plaintiff 2. For the 2 cause of Demurrer which is a point of more difficulty I take it for Law and shall accordingly prove it That when the Defendant traverseth any part of the Plaintiffs Count or Declaration in a Quare Impedit it ought to be such part as is both inconsistent with the Defendants Title and being found against the Plaintiff doth absolutely destroy his Title for if it doth not so however inconsistent it be with the Defendants Title the Traverse is not well taken To prove this I shall make use of 2 Cases urg'd at the Bar for the Plaintiff but rightly understood are fully against him The first is 10 H. 7. f. 27. 10 H. 7. f. 27. in a Quare Impedit the Plaintiff declared that he presented such a one his Clerk who was admitted instituted and inducted and after the Church became void and he ought to present the Defendant pleaded his Ancestor was seis'd of a Mannor to which the Advowson was appendant and presented and that the Mannor descended to him and that the Church being void he presented and traversed absque hoc that the Advowson is in gross It was adjudged that the Defendant ought to have traversed the Presentation and not the Seisin of the Advowson in gross Whence it was inferr'd that in the present Case the Presentation alledg'd ought by like reason to have been traversed and not the appendency for traversing the appendency in this Case differs not from traversing the Seisin in gross in that Case But the reason of that Iudgment when rightly understood is very clear 1. The Plaintiff in the Quare Impedit as the Case appears in the book did not declare that he was seis'd of the Advowson in gross and presented though perhaps if the Original Declaration did appear it might be he did so declare but declares that he presented and his Clerk was
said William Paul dyed at Oxford That after his death the Defendant was elected Bishop of Oxford and after and before the Writ purchased viz. the 27. of November 1665. Gilbert now Archbishop of Canterbury and Primate of all England by his Letters of Dispensation according to the said Act and directed to the said Walter the Defendant now Bishop under his Seal then elect and upon the Bishops petition of the means of his Bishoprick Graciously dispensed with him together with his Bishoprick the Rectory of Whitney in the Diocess and County of Oxford which he then enjoyed and the Rectory of Chymer aforesaid which he by the Kings favour hoped shortly to have to receive hold retain and possess in Commendam as long as he lived and continued Bishop of Oxford with or without Institution and Induction or other solemnity Canonical and to take and receive the profits to his own use without Residence Quantum in eodem Archiepiscopo fuit jura regni paterentur The Letters of Dispensation not to be effectual without the Kings Confirmation That the King after the 28 of Novemb. 17. of his Reign under the great Seal to the said Church so void by Cession presented the Defendant then as aforesaid Bishop Elect and after that is the 28. of Novemb. 17. Car. 2. the King by his Letters Patents under the great Seal dated the same day and year and duly inrolled in the Chancery according to 25 H. 8. did confirm the Letters of Dispensation and that the said Bishop might enjoy all things contained in them according to the form and effect thereof with clauses of non obstante aliquo Statuto or other matter Then averrs that the cause of Dispensation was not contrary to the word of God and that the Pope in H. 8. time did use to grant the like Dispensations to the Kings Subjects which he is ready to averr c. The Plaintiff replys That true it is William Paul Praedict was elected Bishop of Oxford being Incumbent of Chymer but that after his election and before his creation he 2 Decemb. 1663. obtained Letters of the Archbishop under his seal of Faculties for causes therein mentioned of Dispensation to hold the Church of Brightwell and the Rectory of Chymer both which he then lawfully had and to retain the same with his Bishoprick after his consecration c. durant vita sua natural Incumbentiâ suâ in Episcopatu praedict quamdiu eidem Episcopatui praeesset The King 9. Decemb. 15. of his reign confirmed the Letters Patents under the great Seal with non obstante according to the Ordinary form 30. Decemb. 15. Car. 2. was created Bishop Vpon this Replication the Defendant demurs and the Plaintiff joyns in Demurrer Note the Defendant doth not shew to whom he was presented He doth not say that he enter'd by vertue of the Presentation of the King in Chymer In discussing the Case as it appears upon this Record I take it granted 1. If a person Incumbent of one or more Benefices with Cure be consecrated Bishop all his benefices are ipso facto void 2. Vpon such voidance the King and not the Patron is to present to the benefices so void by Cession 3. That any Dispensation after the Consecration comes too late to prevent the Voidance 4. That the Pope could formerly and the Arch-bishop now can sufficiently dispense for a Plurality by 25 H. 8. I shall therefore first make one general Question upon the Case as it appears Whither William Paul Rector of Chymer and elected Bishop of Oxford and before his Consecration dispensed with by the Archbishop to retain his said Rectory with the Bishoprick and having the said Letters of Dispensation confirmed by the King and inroll'd Modo forma prout by the Record did not by virtue of the said Dispensation and Confirmation prevent the voidance of his said Rectory by Cession upon his Consecration For if he did the Rectory became not void until his death and by his death the Plaintiff being Patron hath right to present To determine the General Question I shall make these Questions as arising out of it 1. Whether any Dispensation as this Case is be effectual to prevent an avoidance after Consecration 2. Whether the Archbishop hath power with the King's Confirmation to grant such a Dispensation 3. Whether this Dispensation in particular be sufficient to prevent a voidance of Chymer after Consecration of the late William Paul 1. This Case differs from the Bishop of Ossory's Case in Sir J. Davies's Reports who had a faculty accipere in Commendam with odd power and executed it by collating himself into a Living void by Lapse 2. It varies from the Case of Colt and Glover in the Lord Hobarts Reports and the Dispensation there to the Bishop elect of Lichfield and Coventry which was to retain one Benefice which he had and propria authoritate capere apprendere as many as he could under a certain value The defects of that Dispensation are numerous and excellently handled by the Lord Hobart in that Case of Colt and Glover But in our Case there is no affinity with the defects of those Dispensations but is barely to retain what legally was had before Obj. 1 Per Thyrning The Bp. of St. Davids Case 11 H. 4. f. 37. b. 38. a. Rolls f. 358. ob 1. 11 H. 4. f. 60. B. per Hill An Incumbent of a Church with cure being consecrated Bishop his Living was void by the Law of the Land therefore the Pope could not prevent the voidance after consecration for then the Pope could change the Law of the Land and if the Pope could not the Archbishop cannot The better opinion of that Book 11 H. 4. is contrary and Answ 1 so agreed to be in the Irish Case of Commendams and Rolls his opinion is grounded only upon 11 H. 4. If an Incumbent with cure take another Benefice with cure the first is void by the Law of the Land and the Patron hath right to present therefore the Pope could not grant a Dispensation nor the Arch-bishop now can to hold a Plurality for that were to alter the Law of the Land and to prejudice the Patron But the Law was and is otherwise therefore that reason concludes not in the case of a Bishop A second reason in that case of 11 H. 4. is that such a Dispensation Obj. 2 cannot prevent the avoidance 11 H. 4. f. 59. bi per Skreen because there is no use of it until Consecration for before the Incumbent retains his Living without any Dispensation and when consecrated his Benefices are void and then it is too late to dispense as is agreed This reason is as effectual against a Dispensation for a Plurality Answ 2 for before a man takes a second Living there can be no use of it and after by this reason it comes too late for the Patron hath right to present It was in that great Case endeavoured to avoid the pressure of
Avowry is in liew of an Action and thereto privity is requisite for the same cause he cannot have an Action of Waste nor many other Actions there mentioned and the Authorities cited and so is Littleton himself expresly Litt. Sect. 580. Section 580. Where a man by grant to himself or by descent from his Ancestor hath a Rent-charge and might once lawfully distrain and Avow for such Rent if Arrear by due Attornment made to him or his Ancestor he may still do so whenever the Rent is behind unless by Law that power be some way lost 1. That power may be lost by extinguishment of the Rent by a perpetual union of the tenancy to the rent or rent to the tenancy or in other manner the Grantee having no Heir 2. It may be lost for a time by Suspension as by such union for a time and after restored again 3. It may be lost by a Grant of the Rent upon Condition 7 H. 6.3 Br. Extinguishment p. 17. and upon performance or breach of the Condition restored again but the power of distraining is not in this Case lost by any of these ways 4. It may be principally lost by a sufficient granting over and transferring the Rent to another which way comes nearest to the Case in question And therefore I shall agree the Case so much insisted on which is said to be agreed per Curiam Andrew Ognell's Case 4. Rep. f. 49. in Andrew Ognell's Case in the fourth Rep. That if a man be seized of a Rent-service or Rent-charge in Fee and grant it over by his Deed to another and his Heirs and the Tenant Attorn such Grantor is without remedy for the Rent arrear before his Grant for distrain he cannot and other remedy he hath not because all privity between him and the Tenant is destroyed by the Attornment to the Grantee and he hath no more right than any Stranger to come upon the Land after such transferring over of the Rent I shall likewise agree another Case That if such Grantee should regrant the same Rent back to the Grantor either in fee in tail or for life and the Tenant Attorn as he must to this regrant yet the first Grantor shall never be enabled to distrain for Arrears due to him before he granted over the Rent for now the privity between him and the Tenant begins but from the Attornment to the regrant the former being absolutely destroyed and the Tenant no more distrainable for the ancient Arrears than he was upon the creation of the Rent for Arrears incurred before till first attorn'd If the Case in question prove to be the same in effect with either of these Cases then the reason of Law for these Cases must sway and determine the Case in question And I conceive that there is no likeness or parity between the Case in question and either of those Cases either for the fact of the Cases or the reason of Law I shall therefore begin with comparing this Case with the first of those Cases 1. In the first of those Cases he that is seis'd of the Rent-charge doth intend to transferr his Estate in the Rent to the Grantee and it is accordingly actually transferr'd by the Tenants Attornment to the Grant 2. The Grantee by his Grant and Attornment to it becomes actually seis'd of the Rent and may enjoy the benefit of it by perception of the Rent 3. His Wife becomes dowable of it 4. It is subject to Statutes Recognizances and Debts enter'd into by the Grantee or due from him to the King 5. It is possible to descend to his Heir 6. It may be Arrear and he hath a possibility to distrain and avow for it 1. But in the Case in question the Conizors of the Fine did never intend to transfer their Estate in the Rent to the Conizee nor that any Attornment be made to him What a man intends to pass to another he intends to be without it himself at least for some time which is not in this Case 2. The Conizee never becomes actually seiz'd of the Rent and not only doth not but never can enjoy the perception of it for there is no moment of time wherein the Conizors themselves are not actually in seisin of it and consequently may distrain if it be in Arrear and the Conizee can never have actually seisin or possibility to have Attornment or distrain his seisin being but a meer fiction and an invented form of Conveyance only 3. The Conizee's Wife is never dowable of it 4. It is not subject to any Statutes Recognizances or Debts of the Conizee 5. It is never possible to descend to his Heir for it instantly vests in the Conizors 6. It can never be Arrear to the Conizee nor hath he ever a possibility to distrain for it To this purpose what is agreed in the Lord Cromwell's Case L. Cromwell's Case 2. Rep. f. 77. 2. Rep. is applicable Then it is to be consider'd what seisin Perkins had who was the Conizee of a Fine in that Case and he had but a Seisin for an instant and only to this purpose to make a Render for his Wife shall not be endowed nor the Land subject to his Statutes or Recognizances f. 77. Therefore that first Case cited out of the Report of Andrew Ognell's Case which I admit to be good Law hath no resemblance with the present Case in any circumstance or consequent but had the Fine been to a third persons use the consequents had been the same as in the Case cited out of Ognell's Case not as to the Conizee but as to that third person to whom the rent was intended To conclude then this first part 1. That whereof the Conizors were alwaies actually and separately seiz'd the same was never by them transferr'd to the seisin of another But of this Rent the Conizors were alwaies in actual seisin for there was no moment of time wherein they were not seis'd therefore this Rent was never transferr'd to the seisin of another nor could any other for any moment of time have a separated seisin thereof for what was mine at all times could be anothers at no time 2. It is an impossibility in Law that two men severally shall have several Rights and Fee-simples in possession in one and the same Land Dyer 28 H. 8. f. 12. a. p. 51. simul semel per Fitz-herbert in the Argument of Bokenhams Case and the same impossibility is so to have of a Rent Nor hath this relation to the learning of Instants in Digbie's Case Coke 1. Rep. and Fitz-williams in the sixth Report That an old Use may be revoked and a new rais'd in the same time and an old possession ended and a new begun this is usual in all transmutation of Estates and things also For in nature a new form introduc'd doth in the same moment destroy the old according to that Generatio unius est corruptio alterius but a separate possession can never be
And if such Debts were not justly to be so demanded and paid it had been against the Iudges Oath to pass such Iudgments for the Defendant is not bound to Demurr but leaves the Iustice of the Plaintiffs demand to the Court. In Decimo H. 6. Cotsmore 10 H. 6. f. 24. b. 25. a. who gave the Rule in the Case in question hath these words The Law will not charge Executors with a duty due by a simple Contract made by the Testator Then if such Action be brought against Executors upon a simple Contract made by the Testator and they will not take advantage at the beginning of the Pleas in abatement of the Writ but plead other matter which is found against them they never shall have advantage to shew that before Judgment that is in Arrest of Judgment and that I have known adjudg'd in this place once before this time Here is not only his own Opinion but a Iudgment by him cited in that Court formerly in the point I shall add another Case to this purpose A man brought a Writ of Debt against another 15 E. 4. f. 29. 2. and counted that he sold certain Goods to his Testator for the Sum in demand Littleton caus'd the Attorney of the Plaintiff as printed but should be Defendant to be demanded and so he was and Littleton demanded of him Si'l voyl avoyder son Suite not his own but his who counted against him que dit que voyl and after Littleton said to the Attorney of the Plaintiff The Court awards that you take nothing by the Writ for know that a man shall never have an Action against Executors where the Testator might have wag'd his Law in his life time quod nota It was not proper to ask the Plaintiffs Attorney Whether he would avoid his Clyents Suit and an unlikely answer of his to say Yes but a rational demand to the Defendants Attorney Whether he would avoid his Suit who counted against him and probably he should answer Yes and after Littleton said to the Attorney of the Plaintiff the Court awards you take nothing by your Writ If he had been the person to whom the question was first asked and who immediately before had answer'd Yes the Book had not been that after Littleton said to the Attorney of the Plaintiff but that Littleton said to him who was the same he discours'd with The Print thus rectified this Case agrees with the Law deliver'd by Cotsmore An Executor is sued and declared against in Court for so was the Course then upon a simple Contract of his Testators the Iudge asks his Attorney Whether he had a mind to avoid the Suit who answer'd Yes If the Iudge had thought fit he might have avoided the Suit without making any question but knowing it was not consonant to Law to avoid a Suit upon a simple Contract unless the Executor himself desired it He therefore asked him the Question and finding he did desire it the Iudge presently told the Plaintiffs Attorney He could take nothing by the Writ Else you see the Consequence of this Iudgment That the Iudges ex officio should prevent any Iudgment for the Plaintiff in Debt brought upon a simple Contract against an Executor whether the Executor would or not against former and subsequent usage Brook in Abridging this Case and not reflecting upon it rightly abridges it that Littleton demanded the Plaintiffs Attorney If he would avow his Suit whereas the word is clearly avoid not avow and to what purpose should he ask that Question for sure it was avow'd as much as could be when counted upon at the instant in Court Then Brook makes a Note Br. Executor pl. 80. Nota cest Judgment ex officio And this Note of Brooks mis-led the Lord Anderson once to the same mistake if the Report be right but the like hath not been before or since Rob. Hughson's Case Gouldsboroughs Rep. 30 Eliz. f. 106. 107. An Action was brought against an Administrator upon a Contract of the Intestates who pleaded fully administred and found against him Anderson said that ex officio the Court was to stay Iudgment and did so because the Administrator was not chargeable upon a simple Contract But since that Case of Hughson one Germayne brought an action of Debt against Rolls as Executor of Norwood for Fees as an Attorney in the Common Bench and for soliciting in the Queens Bench Germayne versus Rolls 37 38 El. Cro. 425. pl. 24. and for mony expended about a Fine for Alienation Rolls pleaded Ne unque Executor which was found against him and Judgment given Vpon which Rolls brought a Writ of Error and the Error assign'd was That the Action lay not against an Executor because the Testator could have waged his Law But it was resolv'd That for Attorney's Fees the Testator could not wage his Law but for the rest he might and that the Executor might have demurr'd at first but pleading a Plea found against him it was said he was Concluded some difference of Opinion was But agreed That the Executor confessing the Action or pleading nil debet in such Case and that found against him he hath no remedy And Popham remembred Hughson's Case in the Common Pleas and would see the Roll for he doubted that both in that Case and this of Germayne the Executor had not confessed the Debt in effect But after it was moved again and all the Judges Hill 38 Eliz. Cro. 459. pl. 4. but Gawdy were of Opinion that the Judgment was well given as to that Cause but it was revers'd for a Cause not formerly mov'd which was That an Action of Debt would not have layn against the Testator himself for part of the mony in demand and recovered that is for the mony for soliciting which was not a certain Debt but to be recovered by Action on the Case Some Cases in the Old Books may seem to colour this Opinion That the Judges ex officio in an Action of Debt brought against an Executor or Administrator for a simple Contract of the Testators or Intestate ought to abate the Writ 25 E. 3. f. 40. The first is 25 E. 3. f. 40. where an Action was brought against an Executor upon a Tally struck by the Testator The Iudges said Nil Capiat per breve if he have no better specialty 12 H. 4. f. 23. The like Case is 12 H. 4. f. 23. where a like Action was brought against the Executor or Administrator upon a Tally of the Testators and there it appears the Defendants Council would have demurr'd and the Cause is mentioned That the writing of the Tally might be washed out by water and a new put in the place and the Notches chang'd and the Iudgment was Nil capiat per breve This being the same Case with the former the reason of the Iudgment was the same of grounding an Action upon a Specialty not good in Law Besides it appears in the latter
Case the Executor opposed the Action by offering to demurr and for any thing appearing he did so in the first 41 E. 3. f. 13. The other Case is 41 E. 3. f. 13. where an Action upon the Testators simple Contract was brought against an Executor and the Executor of a Co-executor to him the Writ was abated for that Reason and said withal There was no Specialty shewed but the first reason abating the Writ necessarily it no waies appears the Iudges would ex officio have abated the Action for the last Cause if the Executor desired it not So as when the Executor or Administrator hath once pleaded to an Action of Debt upon a single Contract he is equally bound up for the event as in any Action wherein the Testator or Intestate could not have waged Law It is therefore an ill Consequence for the Plaintiff to say I have brought an Action upon a simple Contract wherein the Intestate could not have waged his Law Therefore I must be paid before another Creditor by simple Contract bringing an Action wherein the Intestate might wage his Law for it is in the Administrators power by omitting to abate the Writ at first to make the Debt demanded by Action in which the Intestate might have waged his Law to be as necessarily and coercively paid as the other Debt demanded by Action wherein he could not wage his Law And if the Executor believes the Debt by simple Contract demanded by Action of Debt to be a just Debt it is against honesty conscience and the duty of his Office to demurr whereby to delay or prevent the payment of it Besides though since that illegal Resolution of Slade's Case grounded upon Reasons not fit for a Declamation much less for a Decision of Law The natural and genuine Action of Debt upon a simple Contract be turned into an Action of the Case wherein a man is deprived of waging his Law It is an absurd Opinion to think that therefore Debt demanded by it ought to have precedency for payment of a Debt due by simple Contract but quite the contrary For Actions of the Case are all Actiones injuriarum contra pacem and it is not a Debt certain in reason of Law that can be recovered by those Actions but damage for the injury ensuing upon the breach of promise which cannot be known until a Iury ascertain what the damage is Therefore a man did never wage his Law for a demand incertain for he could not make Oath of paying that which he knew not what it was as consisting in damage Now although the Iury give in damages regularly the money promised to be paid yet that changeth not the reason of the Law nor the form for still it is recovered by way of damage and not as a Debt is recovered Which shew the Action much inferiour and ignobler than the Action of Debt which by the Register is an Action of property and no reason a damage uncertain in its own nature should be paid before a certain Debt by simple Contract which were the first Debts and will probably be the last of the World for Contracts by writing were much later and there are many Nations yet where Letters are unknown and perhaps ever will be And that which is so commonly now received That every Contract executory implies a promise is a false Gloss thereby to turn Actions of Debt into Actions on the Case For Contracts of Debt are reciprocal Grants A man may sell his black Horse for present mony at a day to come and the Buyer may the Day being come seize the Horse for he hath property then in him which is the reason in the Register that Actions in the Debet and also in the Detinet are Actions of Property but no man hath property by a breach of promise but must be repair'd in damages The last Exception was That a Recognizance in the nature of a Statute Staple of 2000 l. in the Chancery is pleaded in Barr. And it is not said That it was per scriptum Obligatorium or seal'd as the Statute of 23 H. 8. requires nor that it was secundum formam Statuti Cr. 10 Car. 1. f. 362. Goldsmiths Case versus Sydnor And Goldsmith and Sydnors Case was urg'd to be adjudg'd in the point which Case is so adjudg'd by the Major part of the Court. But in that Case it is pleaded that Sydnor before the Chief Justice of the Common Pleas concessit se teneri Ed. Hobert in 400 l. to be paid at Pentecost next ensuing si defecerit c. voluit concessit per idem scriptum quod incurreret super se haeredes Executores poena in Statuto Stapulae So as it appears The Recognizance was taken before the Chief Justice of the Common Pleas and that the Conuzor was to incurr the penalty of the Statute Staple and therefore a Recognizance in the nature of a Statute Staple was there intended to be pleaded but it was not pleaded that it was taken secundum formam Statuti in general nor specially per scriptum Obligatorium under Seal as it ought to be But here it is not pleaded That the Conuzor was to incurr the penalty of the Statute Staple nor that it was taken before any person authorized to take a Recognizance in the nature of a Statute Staple by the Statute of 23 H. 8. c. 6. for the Chancellor is not so authorized But that it was a bare Recognizance entred into in the Court of Chancery which all Courts of Westminster have power to take and that it remains there inroll'd And that the said Sum of Two thousand pounds should for default of payment be levied of the Conuzors Lands Goods and Chattels and Execution of such Recognizances are to be made by Elegit of the Lands as well as Goods And it appears by the Statute of Acton Burnell 13 E. 1. which is the Law for the Statute Merchant That such Recognizances for Debt were before the Statute Merchants taken by the Chancellor the Chief Justices and Judges Itinerant but the Execution of them not the same as of the Statute Merchant nor are they hindered by that Statute from being as before expresly And in 4 Mariae upon a great search of Presidents Br. Recognizance p. 20. Hill 4 Mar. It was resolv'd That every Iudge may take a Recognizance in any part of England both in Term and out of Term. The like Resolution was in the Lord Hobart's time Hob. f. 195. Hall Wingfields Case So as the Recognizance here pleaded is not a Recognizance in the nature of a Statute Staple nor so pleaded but a Recognizance entred into in the Court of Chancery as Recognizances are entred into in the Court of Common Pleas or Kings Bench and as they were entred before Recognizances by Statute Merchant or Staple But Such Recognizances are to be satisfied before Debts by simple Contracts and before Debts by Obligations also Rolls Executors f. 925.
That Hugh Ivy Clerk the Tenth of May 22 Car. 2. at Wringlington demis'd to the said William One Messuage Twenty Acres of Land Twenty Acres of Meadow Twenty Acres of Pasture with the Appurtenances in Wringlington And also the Rectory and Parish Church of Wringlington Habendum to the said William and his Assigns from the Fifth day of May aforesaid for the term of Five years next ensuing By virtue whereof he entred into the said Tenements and Rectory and was possess'd until the Defendant the said Tenth day of May in the said year entred upon him and Ejected him to his Damage of Forty pounds The Defendant by words of course pleads he is not Culpable and Issue is joyn'd and the Verdict was taken by Default of the Defendant and the Jury find specially Upon the Special Verdict the Case appears to be this John Higden the Defendant was lawfully presented admitted instituted and inducted into the Rectory of Wringlington in the County of Somerset and Dioces of Bath and Wells in February 1664. being a Benefice with Cure of Souls and of clear yearly value of Fifty pounds per Annum and in the King's Books of no more than Five pounds yearly and that the Premisses demis'd were time out of mind and yet are parcel of the said Rectory That the said John Higden being lawful Incumbent of the said Church and Rectory of Wringlington the One and thirtieth of March 1669. was lawfully presented admitted instituted and inducted into the Rectory of Elme in the said County and Dioces being a Benefice with Cure of Souls also of clear yearly value ultra reprisas of Forty pounds per Annum and of the value of Ten pounds per Annum in the King's Books and subscribed the Articles of Religion according to the Act of the Thirteenth of the Queen 13 El. cap. 12. and was lawful Incumbent of the said Rectory of Elme but after did not read the Articles of Religion within two Months after his Induction in the Church of Elme according to the Act of 13 Eliz. Primo Maii 1669. Hugh Ivy Lessor of the Plaintiff was lawfully presented admitted instituted and inducted into the Rectory of Wringlington as suppos'd void and performed all things requisite for a lawful Incumbent of the said Rectory to perform both by subscribing and reading the Articles of Religion according to the Statute of 13 Eliz. And that he entred into the said Rectory and Premisses and made the Lease to the Plaintiff as in the Declaration That the said Higden the Defendant did enter upon the Plaintiff the said Tenth of May 1669. as by Declaration The Questions spoken to at the Barr in this Case have been two 1. Whether the Rectory of Wringlington being a Benefice with Cure and of clear yearly value of Fifty pounds and but of Five pounds in the King's Books shall be estimated according to Fifty pounds per Annum to make an Avoidance within the Statute of 21 H. 8. by the Incumbents accepting another Benefice with Cure But that is no Question within this Case for be it of value or under value the Case will be the same 2. Whether not reading the Articles according to the Statute of 13 Eliz. within two Months after induction into the Church of Elme shall exclude Higden not only from the Rectory of Elme but from the Rectory of Wringlington which is no point of this Case For whether he read or not read the Articles in the Church of Elme he is excluded from any right to the Church of Wringlington For this Case depends not at all upon any Interpretation of the Statute of 21 H. 8. of Pluralities but the Case is singly this Higden being actual and lawful Incumbent of Wringlington a Benefice with Cure be it under the value of Eight pounds yearly or of the value or more accepts another Benefice with Cure the Rectory of Elme and is admitted instituted and inducted lawfully to it be it of the value of Eight pounds or more or under The Patron of Wringlington within one month after admission institution and induction of Higden the Incumbent of Wringlington to the Rectory of Elme presents Hugh Ivy the Plaintiffs Lessor to Wringlington who is admitted instituted and inducted thereto the same day and after as by the Declaration enters and makes a Lease to the Plaintiff who is Ejected by the Defendant Higden The Doubt made by the Iury is if Higdens Entry be lawful It hath been resolv'd in Holland's Case and likewise in Digby's Case in the Fourth Report and often before since the Council of Lateran Anno Dom. 1215. Under Pope Innocent 3. Digby's Case Vid. Bon. C. pur Pluralities Anderson 1. part f. 200. b.p. 236 Vid. Moore 's Rep. a large Case to the same effect viz. Holland Digby's Case That if a man have a Benefice with Cure whatever the value be and is admitted and instituted into another Benefice with Cure of what value soever having no qualification or dispensation the first Benefice is ipso facto so void that the Patron may present another to it if he will But if the Patron will not present then if under the value no lapse shall incurr until deprivation of the first Benefice and notice but if of the value of Eight pounds or above the Patron at his peril must present within Six months by 21 H. 8. As to the Second Question Whether the Defendants not reading the Articles in the Church of Elme within two months after his induction there have excluded him not only from being Incumbent of Elme but also from Wringlington The Answer is First His not reading the Articles in the Church of Elme according to the Statute of 13. is neither any cause of nor doth contribute to his not being still Incumbent of Wringlington though as his Case is he hath no right to the Rectory of Wringlington since the admission institution and induction of Hugh Ivy the Plaintiffs Lessor into it as hath already appear'd Secondly As for the Rectory of Elme although it doth not appear that the Patron of Elme hath presented as he might have done or perhaps hath any other Clerk or that any other is admitted and instituted into that Church yet Mr. Higden can be no Incumbent there nor can sue for Tithes nor any other Duty because by not reading the Articles he stands depriv'd ipso facto For clearing this certain Clauses of the Act of 13 Eliz. are to be open'd The first is Every person after the end of this Session of Parliament to be admitted to a Benefice with Cure except that within two Months after his induction he publickly read the said Articles in the same Church whereof he shall have Cure in the time of Common-prayer there with Declaration of his unfeigned assent thereto c. shall be upon every such Default ipso facto immediately depriv'd There follows relative to this Clause Provided always That no Title to conferr or present by lapse shall accrue upon any deprivation
the matter proceeded upon in such Courts might as well be prosecuted in the Common Bench But if a priviledg'd person in Banco were sued in the Ecclesiastical Courts or before the High Commission or Constable and Marshal for things whereof the Common Pleas had no Conuzance they could not Supersede that proceeding by Priviledge And this was the ancient reason and course of Priviledge 1. Another way of Priviledge by reason of Suit depending in A Superiour Court is when a person impleading or impleaded as in the Common Bench is after arrested in a Civil Action or Plaint in London or elsewhere and by Habeas Corpus is brought to the Common Pleas and the Arrest and Cause retorn'd if it appear to the Court That the Arrest in London was after the party ought to have had the Priviledge of the Common Pleas he shall have his Priviledg allow'd and be discharg'd of his Arrest and the party left to prosecute his cause of Action in London in the Common Pleas if he will 2. If the cause of the Imprisonment retorn'd be a lawful cause but which cannot be prosecuted in the Common Pleas as Felony Treason or some cause wherein the High Commission Admiralty or other Court had power to imprison lawfully then the party imprison'd which did implead or was impleaded in the Common Bench before such imprisonment shall not be allow'd Priviledge but ought to be remanded 3. The third way is when a man is brought by Habeas Corpus to the Court and upon retorn of it it appears to the Court That he was against Law imprison'd and detain'd though there be no cause of Priviledge for him in this Court he shall never be by the Act of the Court remanded to his unlawful imprisonment for then the Court should do an act of Injustice in imprisoning him de novo against Law whereas the great Charter is Quod nullus liber homo imprisonetur nisi per legem terrae This is the present case and this was the case upon all the Presidents produc'd and many more that might be produc'd where upon Habeas Corpus many have been discharg'd and bail'd though there was no cause of Priviledge in the Case This appears plainly by many old Books if the Reason of them be rightly taken For insufficient causes are as no causes retorn'd and to send a man back to Prison for no cause retorn'd seems unworthy of a Court. 9 H. 6. 54. 58. Br. n. 5. 14 H. 7. f. 6. n. 19. 9 E. 4. 47. n. 24. 12 H. 4. f. 21. n. 11. Br. If a man be impleaded by Writ in the Common Pleas and is after arrested in London upon a Plaint there upon a Habeas Corpus he shall have Priviledge in the Common Pleas if the Writ upon which he is impleaded bear date before the Arrest in London and be retorn'd although the Plaintiff in the Common Pleas be Nonsuit essoin'd or will not appear and consequently the Case of Priviledge at an end before the Corpus cum causa retorn'd but if the first Writ be not retorn'd there is no Record in Court that there is such a Defendant The like where a man brought Debt in Banco and after for the same Debt arrested the Defendant in London and became Nonsuit in Banco yet the Defendant upon a Habeas Corpus had his Priviledge because he had cause of Priviledge at the time of the Arrest 14 H. 7. 6. Br. Priviledge n. 19. The like Case 9 E. 4. where a man appear'd in Banco by a Cepi Corpus and found Mainprise and had a day to appear in Court and before his day was arrested in London and brought a Corpus cum causa in Banco Regis at which day the Plaintiff became Nonsuit yet he was discharg'd from the Serjeant at London because his Arrest there was after his Arrest in Banco and consequently unlawful 9 E. 4. f. 47. Br. Priviledge 24. and a man cannot be imprison'd at the same time lawfully in two Courts Coke Mag. Chart. f. 53 55. The Court of Kings Bench cannot pretend to the only discharging of Prisoners upon Habeas Corpus unless in case of Priviledge for the Chancery may do it without question And the same Book is That the Common Pleas or Exchequer may do it if upon Retorn of the Habeas Corpus it appear the Imprisonment is against Law An Habeas Corpus may be had out of the Kings Bench or Chancery though there be no Priviledge Mic. C. 2. Coke f. 55. c. or in the Court of Common Pleas or Exchequer for any Officer or priviledg'd Person there upon which Writ the Gaoler must Retorn by whom he was committed and the cause of his Imprisonment and if it appeareth that his Imprisonment be just and lawful he shall be remanded to the former Gaoler but if it shall appear to the Court that he was imprisoned against the Law of the Land they ought by force of this Statute to deliver him if it be doubtful and under consideration he may be bayl'd The Kings Bench may bayl if they please in all cases but the Common Bench must remand if the cause of the Imprisonment retorn'd be just The Writ de homine replegiando is as well retornable in the Common Pleas as in the Kings Bench. All Prohibitions for incroaching Iurisdiction Issue as well out of the Common Pleas as Kings Bench. Quashing the Order of Commitment upon a Certiorari which the Kings Bench may do but not the Common Pleas is not material in this Case 1. The Prisoner is to be discharg'd or remanded barely upon the Retorn and nothing else whether in the Kings Bench or Common Pleas. 2. Should the Kings Bench have the Order of Commitment certified and quash'd before the Retorn of the Habeas Corpus or after what will it avail the Prisoners they cannot plead Nul tiel Record in the one case or the other 3. In all the Presidents shew'd in the Common Pleas or in any that can be shew'd in the King's Bench upon discharging the Prisoner by Habeas Corpus nothing can be shew'd of quashing the Orders or Decrees of that Court that made the wrong Commitment Glanvill's C. Moore f. 836. 4. It is manifest where the Kings Bench hath upon Habeas Corpus discharg'd a Prisoner committed by the Chancery the person hath been again re-committed for the same Cause by the Chancery and re-deliver'd by the Kings Bench but no quashing of the Chancery Order for Commitment ever heard of 5. In such Cases of re-commitment the party hath other and proper remedy besides a new Habeas Corpus of which I shall not speak now 6. It is known That if a man recover in Assise and after in a Re-disseisin if the first Iudgment be revers'd in the Assise the Iudgment in the Re-disseisin is also revers'd So if a man recover in Waste and Damages given for which Debt is brought especially if the first Iudgment be revers'd before Execution it destroys the Process
this difference holds in offences by penal Laws 22 Car. 2. c. 8. So a Mayor or Bayliff of a Town or other Toll-taker who is penally bound to provide true Market measures and doth not cannot be pardon'd by the King because the fault still continues but the punishment inflicted the King may pardon But by a Law all these offences may be pardon'd So it is generally true that malum per se cannot be dispensed with but thence to inferr as many do that every malum which the King cannot dispense with is malum per se is not true Nor is there in that Case any sufficient designation of what is malum per se and why to prevent error in disquisition concerning it though some instances thereof mala per se be very right I shall therefore endeavour to in stance in several kinds of mala per se which cannot be dispens'd with and in some mala prohibita by Acts of Parliament and otherwise which the King also cannot dispense with and to give the reason why he cannot in both thereby to make the conclusion I drive at less confused which is to differ penal Laws dispensable from those which are not Murther Adultery Stealing Incest Sacriledge Extortion Perjury Trespass and many other of the like kind all men will agree to be mala per se and indispensable All which are prohibited and by Statutes Nor is it much to say those are also prohibited by the Common Law and therefore cannot be dispens'd with if that were the reason nothing prohibited at the Common Law could be dispens'd with which is not so 2. Where the Suit is only the Kings for breach of a Law which is not to the particular damage of any third person the King may dispense but where the Suit is only the Kings but for the benefit and safety of a third person and the King is intitled to the Suit by the prosecution and complaint of such third person the King cannot release discharge or dispense with the Suit but by consent and agreement of the party concern'd As where upon complaint of any person a man hath entred into Recognizance to keep the Peace against such person the King cannot discharge such Recognizance before it be forfeited but the party whose safety is concerned may though the King only can sue the Recognizance Some more such Cases may be As the Laws of Nusances are pro bono publico so are all general penal Laws and if a Nusance cannot be dispens'd with for that reason it follows no penal Law for the same reason can be dispens'd with Therefore the reason is because the parties particularly damaged by a Nusance have their Actions on the Case for their damage whereof the King cannot deprive them by his dispensation And by the same reason other penal Laws the breach of which are to mens particular damage cannot be dispens'd with 3. Nusances and Ills prohibited by penal Acts of Parliament are of the same nature as to the publique 4 E. 4. f. 31. 22 E. 4. f. 22. 3 H. 7. f. 1. Br. Leet n. 2. 19 25 26 30. although as the Law is now received the mala or nocumenta prohibited by Acts of Parliament are not presentable in Leets or the Sheriffs Torn as Nusances at Common Law are of which some questionless cannot be dispens'd with As obstructing the High way diverting a Water-course breaking down a Bridge breaking the Assise of Bread and Ale for as to these the parties particularly damaged by them have their Actions which the King cannot discharge 4. Other ancient Nusances are by which no man hath a particular damage or action for it as if a man buy provision coming to the Market by the way which is a Nusance by forestalling the Market and sells it not in the Market forestall'd no Action lies for a particular damage to any man more than to every man but the King may punish it So if a may buy Corn growing in the field contrary to the Statute of 5 E. 6. c. 14. he is an Ingrosser So selling Corn in the Sheaf is against the Common Law by Robert Hadham's Case Cok. f. 197. c. 89. Hill 25 E. 3. coram Rege cited in Coke's Pleas of the Crown and punishable by the King but no particular person can have an Action for such ingrossing more than every man yet these are Nusances by the Common Law but so made by prohibiting Laws beyond memory As by a Law of King Athelstans Ne quis extra oppidum quid emat Sax. Laws f. 49. c. 12. Will. the firsts Laws f. 171. c. 60 61. Cok. Pleas Coron 197. forestalling was prohibited And by several Laws of William the First Ne venditio emptio fiat nisi coram testibus in civitatibus Item nullum mercatum vel forum sit nec fieri permittatur nisi in civitatibus regni nostri And no way differ from publique evils now prohibited by Parliament and may by it be permitted for the Statute of 15 Car. 2. c. 5. 15 Car. 2 c. 5. gives leave to ingross without forestalling when Corn exceeds not certain Rates Nor see I any reason why the King may not dispense with those Nusances by which no man hath right to a particular action as well as he may with any other offence against a penal Law by which no third person hath cause of Action Whence it follows That if an Act of Parliament call an offence a Nusance from which no particular damage can arise to a particular person to have his Action the King may dispense with such a nominal Nusance as with an offence against a penal Law for which a man can have no Action for his particular damage 5. The Register hath no Writ of Ad quod damnum upon any Licence to be granted but for alienation of Capite Land or in Mortmain or for diverting or obstructing a Water-course or High-way in which Cases the Writ is directed to the certain Sheriff or Escheator of the County where the Land-way or Water-course lye but for Licences for other things as Exportation or Importation of prohibited Commodities a Writ of Ad quod Damnum cannot be directed to any certain Sheriff or other Officer to enquire Nor is it enough to make a thing malum per se because prohibited at Common Law But the reason is The word Murther ex vi termini in the Language it is us'd in signifies unlawful killing a man The word Adultery unlawful Copulation Stealing unlawful taking from another Perjury unlawful swearing and Trespass ex vi termini an unlawful imprisonment or unlawful entry or the like upon anothers House or Lands and so do the other mala instanced If these mala might be dispens'd with in regard a dispensation as I said makes the thing to be done lawful to him who is dispens'd with it follows that the dispensation would make unlawful killing which the word Murther imports vi termini to be lawful unlawful
and Merioneth The residue of the said Lordships Marchers were thereby framed and divided into five particular Counties erected and created by the Act namely the County of 1 Monmouth 2 of Breenock 3 of Montgomery 4 of Radnor 5 of Denbigh The respective Lordships Marchers annexed to the respective English Counties of Salop Hereford and Glocester are now to all intents under the Jurisdiction of the Courts at Westminster in like manner as the Counties to which they were annexed formerly were and yet are So is one of the new erected Counties framed out of the said Lordships Marchers namely the County of Monmouth which by the said Act is to all purposes under the Jurisdiction of the Kings Courts at Westminster as any English Country is All the Lordships Marchers annexed to the ancient Shires of Wales are now since the Statute under the same Jurisdiction for Administration of Justice as those ancient Shires were before the Statute of the 27. and yet are so as the Lordships Marchers annexed to those ancient Shires of Wales are now such parts of them as the Lordships Marchers annexed to the English Shires are parts of them And the four new Shires in Wales excluding Monmouth shire are by the said Act under the same Administration of Justice by the King's Justices to that purpose there Commissioned as the other ancient Shires of Wales formerly were and are and consequently wholly out of the Jurisdiction of the King's Courts at Westminster And the reason appears in the Statute forasmuch as the Counties or Shires of Brecnock Radnor Montgomery and Denbigh be far distant from the City of London and the Inhabitants of the said Shires not of substance to travel out of their Counties to have the Administration of Justice It is therefore enacted that there shall be respective Chanceries and Exchequers in these Counties and that the Sheriffs of those Counties shall make their Accompts before the Chamberlain and Barons there appointed And that Justice shall be used and ministred in the said new Shires according to the Laws and Statutes of England by such Justiciar or Justicers as shall be thereto appointed by the King and after such form and fashion as Justice is used and ministred to the King's Subjects within the three Shires of North-wales which is according to the ancient Administration of Justice by the Statute of Wales 12 E. 1. So as since this Statute the Courts of Westminster have less Jurisdiction in Wales than before for before they had some in all their Lordships Marchers which were in no County as by this Act and since they being all reduced into Counties either of England or Wales their Jurisdiction is absolute over such of them as are annexed to English Counties but none over the rest And accordingly it hath been still practised since the Statute for before Lordships Marchers and Quare Impedits of Churches within them were impleadable in the Kings Courts by Originals out of the Chancery directed to the adjoyning Sheriffs and the Issue tryed in the Counties adjoyning But since no such Original hath issued for real Actions nor any such Tryal been And what hath been in personal Actions of that kind began upon mistake because they found some Originals issued into some part of Wales and knew not the true reason of it that it was by Act of Parliament they then concluded Originals might issue for any cause arising into any part of Wales and the Tryals to be in the adjacent Counties of England generally And though that practise hath been deserted since the Statute of 27 H. 8. as to real Actions because the subject matter of the Lordships Marchers was taken away which in some sense was lawful as is opened before the Statute yet they have retained it still in personal Actions which was never lawful nor found in any Case anciently practised as real Actions were as appears in the Case of Stradling and Morgan in the Commentaries yet that was upon a quo minus out of the Exchequer which I do not see how it can change the Law If Judgments be obtained in the King's Courts against persons Obj. 1 inhabiting in Wales and that Process of Execution cannot be awarded thither the Judgments will be ineffectual The same may be said of Judgments obtained against a Frenchman Answ 1 Scotch man or Dutch-man whose usual Residence Lands and Goods are in those Territories he that sues ought to foresee what benefit he shall have by it and must not expect it but where the Courts have Jurisdiction The same may be said of Judgments obtained here against Irish-men Garnsey or Jersey Inhabitants or formerly against those of Calais Gascoign Guyen which were equally and some are still of the Dominions of England as Wales is subject to the Parliament of England but not under the Jurisdiction of the Courts at Westminster though subject to Mandatory Writs of the King Obj. 2 That of Judgments obtained in the King's Courts Execution is had in Franchises and also in Counties Palatine where the King 's Writ runneth not and by the same reason ought to be had in Wales though the King's Writ runneth not there Answ 1 Franchises inferiour are deriv'd out of Counties by the King's Grant where the King's Writ did run and so were Counties Palatine part of the Realm anciently where the Subjects of the Realm had right to have Execution of the Lands and Goods of those against whom they recovered in the King's Courts whereof they are no more to be deprived than of their Actions by the King's Grant for he may make what Counties he pleases Counties Palatine but in Dominions out of the Realm the Subject had no such Right in the other they have it because they had it at Common Law but in others not because they had it not at Common Law When the Question is of the Jurisdiction in a Dominion or Territory belonging to England the way to determine it is by examining the Law in Dominions the same in Specie with that concerning which the Question is and not to examine the Law in Franchises or Dominions of another kind Therefore to determine what Jurisdiction the King's Courts have in Wales ought to be by examining their Jurisdiction in Ireland the Islands of Garnsey Jersey Calais Gascoign Guyen in former times some part of Scotland and the Western Islands and many others might be named which are Dominions in Specie the same with Wales and belonging to England where the King 's Writ runneth not and not this power in Franchises within the Realm part of English Counties before they were Franchises and continuing so after or in entire Counties Palatine which sometimes were under the Jurisdiction of the King's Courts and in which the Subjects had a right of their Tryals upon Pleas pleaded and of Execution and which cannot be taken from them where the King 's Writ runneth not The Cases are full in this point in 19 H. 6. f. 12. 32 H. 6. f. 25. and many
more Books Obj. 3 That by the Statute of 9 E. 3. Pleas of Releases or Deeds dated in Franchises within the Realm shall be tryed where the Action is brought Answ Wales is no Franchise or if it were not within the Realm for the questions concerning a Deed pleaded bearing date there but of Original Process for Causes arising and Tryals of them in the next County adjoyning and not in the County where the Action of a Deed dated in a Franchise of the Realm which do toto coelo differ and concerning Executions and Judgments here to be made in another Dominion The same may be said concerning the Statute of 12 E. 2. when Witnesses to Deeds in Forreign Franchises are to be summoned with the Iury and the Tryal notwithstanding their absence to proceed when the Writ is brought Obj. 4 Presidents of Process issued to the Sheriffs of Wales without a Judicial decision upon Argument are of no moment Many things may be done several ways as Bonds though they have regularly one common form yet they may be in other forms as well Presidents are useful to decide questions but in such Cases as these which depend upon Fundamental Principles from which Demonstrations may be drawn millions of Presidents are to no purpose Besides it is known that Officers grant such Process to one Sheriff or County as they use to another nor is it in them to distinguish between the power of the Court over a Sheriff in Wales from a Sheriff in England especially when they find some Writs of Execution going which are warranted by Acts of Parliament which they know not though they do know Process of Execution in fact runs thither as Capias utlagatum Extents upon Statute which are by Acts of Parliament And that other Mandatory Writs issue thither as well at Common Law as by a particular Clause concerning the Chancellor in the Act of 34 H. 8. c. 26. By the Register upon a Judgment had in the Common Pleas against a Clerk Regist f. 43. B Brevium Judicialium who was after made Archbishop of Dublin in Ireland upon a Fieri Facias issued to execute the Judgment to the Sheriff of Middlesex and his Retorn that he had no Lands or Goods in his Bayliwick but was Archbishop in Ireland upon a Testatum of it in the Common Pleas that he had Lands and Goods in Ireland a Fieri Facias issued in the King's name Justiciario suo Hiberniae to make Execution but it appears not whether this Writ issued from the Common Pleas or especially by the King's Direction out of the Chancery which possibly may be as a special Mandatory Writ of the Kings locum tenens there which varies in stile at the Kings pleasure anciently Justiciario suo Hiberniae at other times Locum tenenti nostro at other times Deputat or Capitaneo generali nostro which stiles are not regularly known to the Officers of the Courts at Westminster And perhaps by special Writs to the chief Officer and the King Execution may be made of Judgments given at Westminster in any of his Dominions which would be enquired of FINIS An Exact and Perfect TABLE TO THE REPORTS and ARGUMENTS OF Sir JOHN VAVGHAN Lord Chief Justice of the Court of Common Pleas. Abatement of Writs See Writs 1. WHere a Writ is brought against an Executor in Debt upon a simple Contract he may abate it 94 2. Judges ought not Ex officio to abate Writs but it must come before them by Demurrer 95 Act of the Party 1. Every act a man is naturally enabled to do is in it self equally good as any other act he is so enabled to do 333 Actions and Actions upon the Case 1. Actions upon the Case are more inferior and ignobler than Actions of Debt 101 2. Actions of the Case are all Actiones Injuriarum contra Pacem and it is not a Debt certain but damages for the breach of the promise that must be recovered in it 101 3. Wheresoever the Debt grew due yet the Debtor is indebted to the Creditor in any place where he is as long as the Debt is unpaid 92 4. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 5. If you will recover any thing against any man it is not enough for you to destroy his Title but you must prove your own better than his 60 6. In life liberty and estate every man who hath not forfeited them hath a property and a right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and punish the wrong-doer 337 7. There are several penal Laws by transgressing of which the Subject can have no particular damage and therefore no particular Action 341 8. All Actions brought against Officers within the Statute of the One and twentieth of K. James must be laid in the proper County 115 116 117 9. Case and not Debt lies for a Solicitor for Soliciting Fees 99 Ad quod dampnum 1. When the King can license without a Writ of Ad quod dampnum he may license if he will whatever the Return of the Writ be 341 345 2. Where the Writ of Ad quod dampnum informs the King better then a Non obstante 356 3. Though there be a Return upon an Ad quod dampnum that it is not ad dampnum yet there must be the Kings license afterwards 341 Administration and Administrator 1. How they are to administer the Intestates Estate 96 2 An Administrator hath a private office of trust he cannot assign nor leave it to his Executor 182 3. An Administrator must take an Oath to make a true accompt 96 4. An Action will not lye against them upon a Tally because it is no good Specialty 100 5. In an Action of Debt upon Bond or Contract brought against him he may confess Judgment if there is no fraud although he hath notice of a former Suit depending 95 100 6. If an Administrator durante minore Aetate brings an Action he must averr the Administrator or Executor to be under the Age of Seventeen years 93 7. The manner of pleading Plene administravit praeter ultra 154 Advowson See Quare Impedit 1. The rights of an Advowson 7 2. Where the Plaintiff and Defendant must alledge Seisin in an Advowson by a former Presentation 8 Agent and Patient 1. In a Quare Impedit both Plaintiff and Defendant are Actors and may have a Writ to the Bishop 6 7 58 Age See Infant Alien 1. The time of the birth is of the Essence of a Subject born for he cannot be a Subject unless at the time of his birth he was under the Kings Liegeance 286 287 2. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament 274 282 3. He that is priviledged by the Law of England to inherit must be a Subject of the Kings 268 in loco 278 286 4. He must be more
than a local Subject ibid. 286 5. He must be otherwise a Subject than any Grant or Letters Patents can make him ibid. 6. The Natives of Jersey Garnsey Ireland and the English Plantations c. are not Aliens 268 in loco 278 279 7. Those which are born in the Kings Forreign Plantations are born his Natural Subjects and shall inherit in England 279 8. A Natural Subject is correlative to a Natural Prince and a man cannot have two natural Soveraigns no more than two Fathers or two Mothers 280 273 in loco 283 9. The several ways by which men born out of England may inherit in England 281 10. An Antenatus in Scotland shall not inherit without an Act of Parliament because he is an Alien 274 in loco 284 287 11. Who are the Antenati Postnati and the difference between them 273 in loco 283 12. An Act of Parliament in Ireland shall never Naturalize an Alien to England to make him inheritable there 274 in loco 284 13. No Tenure by Homage c. in any of the Kings Dominions acquired by Conquest or by Grant or Letters Patents can make a man inheritable in England 279 14. No Laws made in any Dominion acquired by Conquest or new Plantation by the Kings Governor or people there by virtue of the Kings Letters Patents can make an Alien inheritable in England 279 15. One Naturalized in Scotland since the Union cannot inherit in England 268 in loco 278 279 280 285 16. A man born a Subject to one that is King of another Country and who afterwards comes to be King of England is an Alien and shall not inherit in England ibid. 285 286 17. An act of Law making a man as if he had been born a Subject shall not work the same effect as his being born a Subject which is an effect of Law 280 18. An Alien hath issue a Son and afterwards is Denizen'd and he afterwards hath another Son here the youngest Son shall inherit 285 Allegiance 1. All Allegiance and Subjection are acts and obligations of Law the subjection begins with the birth of the Subject at which time the Kings protection of him likewise begins 279 Appendant 1. Whatsoever is appendant to the Land goes to the Occupier thereof naturally 190 2. An Advowson may be appendant to a Mannor 12 Apprentice 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred from the exercise of their Trades in any Town or part of the Kingdom 356 Arch-bishop See Ordinary Dispensation 1. The Arch-bishop may dispense for a Plurality 20 Assets 1. The manner of pleading Assets ultra 104 Assignee and Assignment 1. Offices or acts of personal Trust cannot be assigned for that Trust which any man may have is not personal 180 181 2. An Occupant becomes an Assignee in Law to the first Lessee 204 3. If a man Covenants against himself his Executors Administrators and Assigns yet if his Assigns do a tortious act it is no breach of the Covenant because he may have remedy by Action for the tort 118 to 128 Assise 1. An Assise will not lye for a Rent issuing out of Tythes barely 204 Attaint See Title Statutes 3 11. 1. An Attaint lies only in Civil not Criminal Causes 145 146 2. Jurors are not finable for a false Verdict an Attaint only lies against them 145 Attorney 1. An Attorney cannot bring Debt for Soliciting but Case only 99 2. The Defendant cannot wage his Law for Attorneys Fees ibid. Attornment 1. By the Common Law an Attornment was requisite to entitle the Lord the Reversioner the Grantee of a Remainder or of a Rent by Deed or Fine to distrain for Rent in arrear 39 2. By a Grant and Attornment the Grantee becomes actually seised of the Rent 40 3. Attornment and power to distrain follows the possession and not the use 43 4. An Attornment cannot be for a time 27 5. An Attornment of the Tenant doth not disclaim but affirm his possession For it is the act of the Tenant by reason of his being in possession 193 6. A mans Estate in a Rent-charge may be enlarged diminished or altered and no new attornment or privity requisite to such alteration 44 7. Attornment is requisite to the Grant of an Estate for life but to a Confirmation to enlarge an Estate it is not 44 45 46 8. A Rent-charge is granted to Commence Seven years after the death of the Grantor Remainder in Fee Attornment must be made in the life time of the Grantor 46 9. If a Fine is levied of the Reversion of Land or of a Rent to uses the Cestuy que use may distrain without Attornment 50 51 10. Where a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain without Attornment 51 11. Where a man is seised of a Rent-charge and grants it over to which the Tenant attorns and he afterwards retakes that Estate here must be a new Attornment for the former privity is wholly destroyed 44 12. Where an Attornment shall be good to a contingent use 52 Bargain and Sale See Intollment 1. WHere a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain for the Rent without Attornment 51 Baron and Feme 1. The man after the marriage hath the deduction of the woman ad Domum Thalamum and all the civil power over her and not she over him 306 2. The Interdicts of carnal knowledg in the Levitical Law were directed to the men not to the women who are interdicted but by a consequent for the woman being interdicted to the man the man must also be interdicted to the woman for a man cannot marry a woman and she not marry him 305 Bishop See Ordinary Archbishop 1. What Bishops were originally 22 2. A Parson is chosen Bishop his Benefices are all void and the King shall present 19 20 3. It is not at all inconsistent for a Bishop to be an Incumbent 22 4. A Bishop may be an Incumbent after Consecration 24 5. How many Benefices a Bishop may retain by a Dispensation 25 6. No Canon Ecclesiastical can be made and executed without the Kings Royal assent 329 7. Bishops in Wales were originally of the foundation of the Prince of Wales 411 Canons Ecclesiastical See Title Ecclesiastical Court 1. WHat Canons are good and binding and what not 327 328 Capias ad Satisfaciendum See Execution Certiorari 1. A Certior lies out of the Chancery to Ireland to certifie an Act of Parliament but it doth not lye to Scotland 287 2. A Certiorari doth not lye to Wales to certifie a Record to the Courts at Westminster to the intent that Execution may issue out here upon it 398 Certificate 1. There are many things whereof the Kings Courts sometimes ought to be certified which cannot be certified by Certiorari 288 Chancery 1. The Chancery may grant a Habeas Corpus and discharge a Prisoner thereupon as well