The late Lord Chief Justice NORTH'S ARGUMENT In the CASE Between Sir WILLIAM SOAMES SHERIFF of SVFFOLK And Sir SAM BARNADISTON Bar. Adjudged in the COURT of Exchequer Chamber UPON A WRIT of ERROR CONTAINING The REASONS of that JUDGMENT LONDON Printed and are to be sold by Randal Taylor 1689. The late Lord Chief Justice North's Argument c. SIR Samuel Barnardiston brings an Action upon the Case in B. R. against Sir William Soame late Sheriff of Suffolk setting forth that a Writ issued for the chusing of a Knight for that County to serve in this Parliament instead of Sir Henry North deceased that at the next County Court the Freeholders proceeded to Election and although the Plaintiff was duly chosen per majorem numerum gentium tunc resident infra dict Comitat. quorum tunc quilibet expendere potuit 40 s. libri ten'ti ultra per annum infra Comitat. illud ac licet praedictus Willielmus praemissa satis sciens postea brevem praed in Cur. Cancellar returnavit simul cum quadam Indentura inter ipsum Vicecomitem praedict Electores ipsius Samuelis de praedicta Electione ipsius Samuelis fact secund Exigentiam brevis praedict praedictus tamen Willielmus ad tunc Vicecomes Officii sui debitum minime ponderans sed machinans maliriose intendens ipsum Samuelem in hac parte minus rite praegravare ac eundem Samuelem de fiducia officio unius Mil. Comitat. praedict in dict Parliamento exercend omnino frustrare deprivare Et praedict Samuelem ad diversas magnas grandes pecuniarum summas expend causare contra debitum officii sui praed falso malitiose scienter deceptive ad tunc in ead Cancellar apud Westmonast praedict retornavit una cum Indentura praedict quandam aliam Indenturam eidem brevi similiter annex specificant ' illam fore fact inter prefat Willielmum c. ex una parte diversas alias personas dict Comitat. in Indentura illa specificat continent quod dictae al. personae ut major pars totius Comitat. praedict in praedicto pleno Comitat. elegerunt quend Lionellum Talmash Bar. alias dict Lionell Dom. Huntingtowr in Regno Scotiae in loco praedicti Henrici North un Mil. Com. Suffolk praedict pro Parliamento praedicto adveniend eidem Parliamento pro Com. il Vbi revera praedictus Lionellus non fuit electus per majorem partem prout per ult Indent falso supponitur Ratione cujus quidem falsi retorn de praedicta al. Indent c. idem Samuel in Domum inferiorem pro Comitat. hujus Regni Angliae c. assemblat admitti non potuit quousque idem Samuel per petitionem suam Comitat. dicti Parliamenti pro remedio congruo exhibit post diversas ingentes denar summas in circa manifestationem verificationem dictae Electionis coram dict Comitat. expendit diversos labores in ea parte sustent postea scil c. per Comitat. in Domum Comitat. praedict admissus fuit electio ipsius Samuelis per Comitat declarat fuit fore bond unde deteriat est damnum habet ad Valenc ' 3000 l. There is a Verdict given for the Plaintiff and Damages found to the value of 800 l. and Judgment thereupon and a Writ of Error is brought to reverse that Judgment I have but little time left me to say what I have to offer it being very late and yet I must desire leave to produce these Reasons I have in maintenance of my Opinion I will be careful to detain you no longer then will be necessary And therefore I will not trouble you to State the Case again nor will I speak of any Exceptions that have been made to the Declaration for I love not the Niceties of the Law in Cases where they do prevail and in this Case I have only considered the foundations of the Action which if I had found well established upon Reason or the Grounds of Law I would have Examined what has been Objected to the Forms of the Declaration which must have brought great weight to have overturn'd those Proceedings But as to the point of the Action upon the most serious Consideration I could have of it and weighing what hath been before now and also at this time said in Support of it I am of Opinion that the Judgment ought to be reversed for that no such Action as this at Bar does lye by the Common Law. Because this is a Cause of considerable value great Damages being recovered because it is a Judgment of great Authority being upon a Cause tried at the King's Bench Bar and given upon deliberation there because it is a Case of extraordinary nature and of great import each Party pretending benefit to the Parliament by it because it is an Action primae impressionis that never was before adjudged the report of which will be listned after I have taken pains to collect and set down the Reasons that I must go upon in determining this Case That as the Judgment had the Countenance of some deliberation in the Court where it was given so the Reversal being with greater deliberation may appear grounded upon Reasons that ought to prevail I can say with my Brother Wyndham that I love rather to affirm Judgments than to reverse them but I can attribute nothing of Authority to the Judgment though it were given in a Superior Court and upon deliberation I must judge upon it as if the Case came to be Originally judged by me The Argument to support a Judgment from the Authority of its self is Exceptio ejusdem rei cujus petitur dissolutio which must not be admitted in Case of Writs of Error We are instructed to Examine and Correct the Errors of that Court and for that purpose we are made Superior to it We must proceed according to our own Knowledge and Discretion else we do not perform the Trust reposed in us I must needs say this is a Cause that imports it more than any Cause I have known come before us for it is a Cause primae impressionis and the Question is whether by this Judgment a change of the Common Law be introduced It is the principal use of Writs of Error and Appeals to hinder the change of the Law and therefore Writs of Error in our Law and Appeals in the Civil Law do carry Judgments and Decrees to be Examined by Superior Courts until they come to the highest who are intrusted that they will not change the Law. Therefore do Writs of Error lie from Ireland which is a Subordinate Kingdom to England by whose Laws it is Governed that they might not be able to change the Law by their Judgments and not so much for the particular right of the Party For otherwise it would be very easie for Judges by Construction and Interpretation to change even a Written Law and it would be most easie for the Judges of the Common Laws of
this a Question that refers to Judgment They Object again that the Sheriff may give an Oath concerning all the Qualifications and he is to look no further I Answer the Statute hath given the Sheriff power to give an Oath in assistance of him but the Statute doth not say that whosoever takes that Oath shall have a Voice Neither does the Stat. 23 Hen. 6. say that the Sheriff shall not be charged with a false Retorn that pursues that way So that although he may use those means for his Direction yet he must consider his own Safety not to make a false Retorn If a Man upon taking such Oath give a special Answer or it should be known to the Sheriff that he swears false the Sheriff must determine according to his own Judgment and not by what is sworn It may be hence concluded that the Sheriff as to the declaring the Majority is a Judge And if so my next Assertion is That there is the same Reason he should be free from Action as any Judge in Westminster-hall or any other Judge Does it not import the Publick that the Sheriff should deal Uprightly and Impartially Ought he not to have Courage and for that end should not the Laws provide him Security Consider his Disadvantages What a Noise and Croud accompany such Elections What Importunity Nay what Violence there is upon him from the contesting Parties We may say no other Judge has more need of Courage and Resolution to manage himself and determine uprightly than he No other Judge determines in a Case of greater Consequence to the Publick or Difficulty than he Expose him to such Actions and in most Elections he must have trouble for commonly each Party is confident of his Strength and his Conduct and his Friends that let the Sheriff return never so uprightly the Party that is rejected will revenge it by a Suit especially if he may Sue at Common Law to have boundless Damages without running any hazard himself but of the loss of his Costs If we Judges that find our selves secure from Actions should not be tender of others that are in the same Circumstances it may be well said Wo unto you for you impose heavy Burthens upon others that will not bear the least of them your selves My second Reason is because it is alieni fori either to examine the right of Election or behaviour of the Sheriff both which are incident and indeed the only Considerations that can guide in the Tryal of such Causes if they be allowed It is admitted that the Parliament is the only proper Judicature to determine the right of Election and to censure the behaviour of the Sheriff How can the Common Law try a Cause that cannot determine of those things without which the Cause cannot be tryed No Action upon the Case will lye for breach of a Trust because the determination of the Principal thing the Trust does not belong to the Common Law but to the Court of Chancery certainly the Reason of the Case at Bar is stronger as the Parliament ought to have more Reverence than the Court of Chancery They Object that it may be tryed after the Parliament hath decided the Election for then that which the Common Law could not try is determined and the Parliament cannot give the Party the Costs he is put unto Then I perceive they would have the determination of the Parliament binding to the Sheriff in the Action which it cannot be for that it is between other Parties to which the Sheriff is not called It is against the course of Law that any Judgment Decree or Proceeding betwixt other Parties should bind the Interest of or any way conclude a Third Person No more ought it to do here It may be easie for Parties combining to represent a Case so to the Parliament that the Right of Election may appear either way as the Parties please Is is fit that the Sheriff who is not admitted to controvert such Determination should be concluded by it in an Action brought against him to make him pay the Reckoning Did the Parliament believe when they determined this Election that they passed Sentence against the Sheriff upon which he must pay 800 l. Sure if they had imagined so they would nay in Justice they ought to have heard his Defence before they determine it And yet that was the measure of this Case the Sheriff was not heard in Parliament indeed he was not blamed there and yet upon the Tryal which concerned him so deeply he was not allowed to defend himself by shewing any Majority or Equality of Voices the Parliament having determined the Election I do not by these Reflections tax the Law of injustice or the Course of Parliament of inconveniency I am an Admirer of the Methods of both it is from the Excellency of them I conclude this proceeding in this new-fangled Action being absurd unjust and unreasonable cannot be Legal To answer the other Branch of this Objection I say it does not follow that because the Parliament cannot give Costs therefore this new devised Action must lye to help the Party to them For then such an Action might lye in all Cases where there is a Wrong to be remedied by course of Law and no Costs are given for it At the Common Law no Costs were given in any Case and many Cases remain at this day where the Statutes have given no Costs as in a Prohibition Scire facias and Quare impedit and divers other Cases and yet no Action will lye to recover those Costs And why should it lye in the Case at Bar In this Case the Parliament have already had it under their Consideration in the Statute 23 Hen. 6. and have appointed what shall be paid by the Sheriff that offends sc 100 l. to the King and Imprisonment The Parliament have Stated what shall be paid for Compensation and what for Punishment and would have provided for Costs it they had thought fit My third Reason is because a double Retorn is a lawfull Means for the Sheriff to perform his Duty in doubtfull Cases If this be so then all Aggravations of falso malitiose scienter will not make the thing Actionable for whatever a Man may do for his Safety cannot be the Ground of an Action There is sometimes Dam ' absque injuria though the thing be done on purpose to bring a loss upon another without any design of benefit to himself As if a New house be erected contiguous to my Ground I may build any thing on purpose to blind the Lights of the New house and no Action will accrue though the Malice were never so great much less will an Action lye where a Man acts for his own Safety If a Jury will find a Special Verdict If a Judge will advise and take time to consider If a Bishop will delay a Patron and impannel a Jury to Enquire of the Right of Patronage you cannot bring an Action for these Delays though you
practice hath been hitherto to receive double Retorns which therefore in some Cases must be Lawfull and in this very Case the double Retorn was accepted and the Sheriff no way punished for it which he ought to have been if he had been blameable If double Retorns are accepted by the Parliament they are allowed and we must say they are Lawfull which is the ground of my third Reason for which I hold this Action not maintainable My Fourth Reason is that there is no legal Damage occasioned by the Sheriff The Damages laid in the Declaration are First Being kept from Sitting in the House Secondly The Pains and Charges he was put unto to get into the House First That of his being kept from Sitting in the House is as much every Man's Damage in the whole County nay in the whole Kingdom and any Man else might as well have an Action for it as the Member chosen To sit in Parliament is a Service in the Member for the benefit of the King and Kingdom and not for the particular profit of the Member It is a Rule in Law that no particular Man may bring an Action for a Nusance to the King's High-way because all Men in England might as well have Actions which would be infinite and therefore such an Offence is punishable only by Indictment except there be a special Loss occasioned by that Nusance For the same Reason the exclusion of a Member from the House being as much Damage to all Men in England as to himself he nor any Man else in England can have an Action for it but is punishable upon the publick Score and no otherwise For this Reason was the Stat. 23 H. 6. wisely considered By that Statute the Action is not given to the Party for his particular Damage but the Action given is a popular Action only the Party grieved hath a preference for Six months but if he do not Sue for that time every Man else is at Liberty to recover the same Sum. The other point of Damage is the Pains and Charges he was put unto and that is not occasioned by the Sheriff but by the deliberation of the House Why should the Sheriff pay for that It may be if the Parliament had sent for the Sheriff the first day and blamed the double Retorn he would have ventured to determine the matter speedily and there should have been no cause of Complaint for delay But the Parliament saw so much Cause of doubt that they think it not fit to put the Sheriff to determine but resolve to examine the matter and give him directions that may guide him in amending his Retorn thereupon they give day to the Parties on both sides and finding the matter of long Examination and Difficult they deliberate upon it It seems very unreasonable the Sheriff should be made pay for this which he did not occasion but was a course taken by the Parliament for their own Satisfaction who found no fault in the Sheriff for putting them to all that trouble Suppose Sir Samuel Barnardiston had been retorned alone and the Lord Huntingtowr had petitioned against that Retorn there had been the same Charge to have defended the Retorn So it was the contest of the opposite Party that occasioned the Charge the deliberation of the Parliament that occasioned the Delay but neither of them can be imputed to the Sheriff I cannot difference this Case from the Case of bringing an Action against a Jury for malitiously and knowingly and on purpose to put the Party to Charges finding a matter Specially whereby great Delay and great Expences were before the Party could obtain Judgment and yet I think no Man will affirm that an Action will lye in that Case In this Case the Damages are found entire So that if both parts sc the not Sitting in the House and the Pains and Charges are not Actionable causes of Damage it will be intended the Jury gave for both and so the Judgment is for that Cause erronious I suppose the Wages of Parliament will not be mentioned for Damage for in most places they are only Imaginary being not demanded but if there were to be any Consideration of them it will not alter this Case for upon this Retorn they are due as from the first day and so no Damage can be pretended upon that score My Fifth Reason is drawn from the Stat. 23 H. 6. which has been so often mentioned that Statute is a great Evidence to me that no Action lay by the Common Law against a Sheriff for a false Retorn of a Writ of Election to the Parliament and this Evidence is much strengthened by the Observation that hath been made that never any Action was brought otherwise than upon that Statute I must admit that if an Action lay by the Common Law this Statute doth not take it away for there are no negative Words in the Statute but it is not likely that the Parliament would have made that Law if there had been any Remedy for the Party before The Statute observes that some Laws had been made before for preventing false Retorns but there was not convenient Remedy provided for the Party grieved and therefore gives him an Action for 100 l. If the Courts of Justice had by the Common Laws Jurisdiction to examine Misdemeanors concerning the Retorns of Sheriffs to the Parliament what needed the Parliament to be so elaborate to provide Law after Law to give them Power therein and at last to give the Party grieved an Action can any Man imagaine but that the Parliament took the Law to be that the Party was without Remedy I know preambles of Acts of Parliament are not always Gospel but it becomes us I am sure to have respect to them and not to impute any falsity or failing to them especially where constant usage speaks for them It has been Objected that in these times it was reckoned a Damage to be Retorned to serve in Parliament which is the reason that no Man then did bring his Action against the Sheriff for Retorning another in his stead This cannot be true for the Statute calls him the Party grieved and is carefull to provide convenient Remedy for him and we see by the many Statutes about those Times that it was a mischief very frequent and there wanted not occasion for those Actions which doth extreamly strengthen the Argument of the Non user of this pretended Common Law. An Action upon the Case where it may be brought is a Plaister that fits it self for all Times and for all Sores and if such an Action might then have been brought there was no need for the Parliament to provide a convenient Remedy By Littletons Rule often mentioned by my Brothers we may conclude this Action will not lye for if such an Action had lain it would have been brought before this Time. In the Case of Buckley against Rice Thomas in Plowdens Commentaries 118. which appears to have been elaborately Argued at Bar and