Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	bring_v	great_a	king_n	3,018	5	3.5536	3	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A42316	The late Lord Chief Justice North's argument in the case between Sir William Soames, sheriff of Svffolk and Sir Sam. Barnardiston, Bar. adjudged in the court of exchequer-chambers upon a writ of error containing the reasons of that judgement.	Guilford, Francis North, Baron, 1637-1685.	1689 (1689)	Wing G2214; ESTC R14444	24,927	36

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

Bench if this Common Law had been thought upon they might have prevented the Question Whether the Sheriffs of Wales were bound by the Statute of 23 H. 6. It seems plain to me that the Makers of the 23 H. 6. were ignorant of this Common Law and yet as my Brother Thurland Observes the Judges in those Times usually assisted in the Pening of the Laws The Judges and Councel in the time of Buckleyes Case were ignorant of this Common Law else it would have been mentioned in the Argument of that Case This Common Law was never revealed that I find untill a Time that there were divers other new lights I mean those Times when Nevill brought an Action for a false Retorn against Stroud during the late troubles but in these Times it could never obtain Judgment I have heard that the Court of Common Pleas sent the Record to the Parliament as a Case too difficult for the Courts of Common Law to determine This Statute of 23 H. 6. is not only Evidence that no such Action lay at the Common Law but in my Opinion is not consistent with any Remedy at the Common Law unless it be allowed that the Party shall be doubly punished If the Party grieved has brought his Action upon the Statute and recovered it was admitted by the Councel that no Action can be brought at the Common Law nor e contra can he recover by the Statute after he has recovered by the Common Law because Nemo bis punitur pro eodem delicto So far it stands well but suppose the Party grieved has let slip his Time for Three Months and then a third Person brings a popular Action and recovers 100 l. upon the Statute there is nothing can bar the Party grieved from his Action at the Common Law for his sitting still will not conclude him No Statute of Limittations extending to this Case and if it be so then the Party must besides his Fine and Imprisonment be doubly punished by this Statute which was made as the Letter of it imports because there wanted convenient Remedy And now I am Discoursing of this Statute I must observe the great Wisdom of the course of Parliament in these Cases which hath in great measure prevented the bringing of Actions against the Sheriffs even upon this Statute Where the Sheriff mistakes the Person in his Retorn he incurs the Penalty of 23 H. 6. though it be without any Malice and it may happen that where there are 21 Electors of one side and 20 of the other and the Sheriff Retorns him that hath 21 and the Parliament by adjudging an incapacity in two of the 21 may determine that he that had the 20 voices was duly chosen In such Case the Sheriff has made a false Retorn within the Penalty of the Statute 23 H. 6. and no Evidence shall be given against the Determination of the Parliament This were a very hard Case for the Sheriff and if he were liable to such Mischief many a past Sheriff might be awakened that takes himself to be Secure But the Course of Parliament prevents this as it is Reason for immediately upon their Determination they send for the Sheriff and cause him to amend his Retorn and thence forward the amended Retorn is the Sheriffs Retorn and there is no Record that can warrant any Action to be brought for a false Retorn As when the Marshal of the Kings-Bench or Warden of the Fleet have made an improvident Retorn omitting some Causes wherewith the Prisoner stood charged in their Custody whereby they become liable to Action they frequently move the Court to amend the Retorn and when the Retorn is amended all is set Right for there is no avering against a Record In like manner when the Sheriff hath amended his Retorn he is secure from any Action upon that occasion By this means there has of late years been no Recovery upon the Statute because all Persons chose rather to compel the Sheriff to amend his Retorn that they might be admitted to sit in the House then to take their Remedy upon the Statute and no Man can recover upon the Statute first and afterwards have the Retorn amended for I have been told that by the course of Parliament unless the Petition be lodged some few Days after the Retorn it cannot be received afterwards so that a Man cannot upon that Statute have Remedy at Law and also in Parliament which seems to be wisely provided to prevent any contrariety of Determinations This Statute of 23 H. 6. furnished those that argued for this occasion with one Argument which doth now vanish they said that all the inconveniencies that could be Objected to this Action were the same upon the Statute 23 H. 6. sc that upon that Statute the right of Election must be examined upon a Tryal where there might be contrariety of Determinations for it appears by what I have said that there can be no contrariety of Determinations And there are other Inconveniences in this Remedy by the Common Law which are not in the Remedy given by the Statute for by the Statute the Sum to be recovered is limitted the Informer has a time prefixed So that there are bounds set which cannot be exceeded But the Remedy by the Common Law is without limittation of time which is considerable for all Sheriffs that ever made any Retorn otherwise then the Parliament determined will be liable during their whole lives to them that will call them to Account for it I say this Case is without limittation of Time without measure of Damages or any Rules contained in a written Law it depends upon a general Notion of Remedy which may be enlarged by constructions as it is now introduced without President To finish my Observations upon this Statute I say it is great Wisdom in the Parliament to call the Sheriff to amend the Return and so prevent any Remedy against him upon the Statute of 23 H. 6. For I do not see that the Rules of Law concerning Elections are so manifestly clear and known that it is sit that the Sheriff should upon all Returns that are corrected by the Parliament pay the reckoning of the contest I have a Sixth Reason against this Action which is because the Sheriff is not admitted to take security to save him harmless in such Cases I take this reason to be instar omnium and there needs no other in the Case It were the most unreasonable and grievous thing in the World that the Sheriff should be bound to act without any deliberation and not be allowed to take any security and yet be liable to an Action which way soever he take there is no course can avoid it but this of a double Return as I have before shewn It has not been said by any that argued the other way that the Sheriff may take security and I suppose will not be said for that will be a dangerous course for Parliaments for then the most litigious man