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
the Intestate owing by him at the time of his death The Plaintiff taking by protestation that nothing alledg'd by the Defendant was true Demurrs upon the Plea The Causes offer'd to maintain the Demurrer are these 1. That one of the Iudgments pleaded in Barr obtain'd by William Allington in the Court of London before the Mayor c. against the Defendant for 2670 l. 17 s. 7 d. due to the said Allington by the Intestate Everard was not duly obtained and is insufficient to Barr the Plaintiff 2. That the Defendants special Plea in Barr appearing in any part of it to be false and insufficient the Plaintiff ought to have Iudgment for his whole debt 1. For the first Cause it was urg'd as an Exception to the Defendants Plea That by the Plea it appears that time out of mind a Court hath been held in the City of London before the Mayor and Aldermen of all personal Actions arising and growing within the said City And that the Intestate was at the time of his death indebted to the said Allington at London within the Parish and Ward of St. Mary Bow and Cheapside But it is not alledg'd That the said debt did arise and grow due in London within the said Parish and Ward for wheresoever the debt did arise and grow due yet the debtor is indebted to the creditor in any place where he is as long as the debt is unpaid And therefore to say The Intestate was indebted to Allington in the said Sum apud London c. affirms not that the debt did arise and grow due at London and if not the Court had no Iurisdiction of the Cause The effect of the Defendants Barr is only to shew That such a Judgment was obtain'd in such a Court against him and not to set forth the whole Record of obtaining it for it were vast Expence of time and mony so to do as often as occasion is to mention a Record and referrs to the Record prout per Recordum plenius liquet where the Plaintiff may take advantage of any defect therein But if that were necessary it is well set forth for his Plea is Et praedictus Willielmus Allington tunc ibidem in eadem Curia secundum consuetudinem Civitatis praedictae affirmabat contra praedictum Rolandum Dee ut Administratorem c. quandam billam originalem de placito debiti c. And the Custome being to hold Plea of personal Actions arising within the City if he affirmed a Bill of Debt according to the Custome It must be of a debt arising and growing due within the City 2. A second Exception was That it is not set forth for what the debt was whereby the Court may judge whether it were payable or not by the Administrator To this it was answer'd That the course in London is for the Plaintiff to declare that the Debtor being indebted to him at such a time and place Concessit solvere such a Sum to him at such a time for they enter not there at large as at Westminster all the pleading and the City Customes have been often confirmed by Parliament and if Exception be taken to the Jurisdiction it must come from the Defendant However that will not avoid the Iudgment and is but Error 3. A third Exception was It is not set forth that the Intestate was indebted to Allington in his own right But it must be intended if he were indebted to him by Law that it was in his own right 4. A fourth Exception was That the Defendant pleads Iudgment was given for the Plaintiff quod recuperaret debitum praedictum where the Iudgment should be quod recuperet It is not the Defendants concern to recite the words of the Iudgment as it was given by the Court but the effect of it relating to the Defendant and so it is more proper to say Iudgment was given quod recuperaret The Court say ideo consideratum est per Curiam but he who relates what they did saith ideo consideratum fuit per Curiam But my Book is quod recuperet 5. A fifth Exception was That the Plea sets forth the Action was brought against the Defendant Dee in London as Administrator of the Intestate omitting durante minori aetate Caroli Everard filii That will not avoid the Iudgment Rolls Good Pincents Case Tit. Executors f. 910. 14 Car. 1. B.R. Piggots Case 5 Rep. though the Minor were of Age sufficient to administer himself nor is it of prejudice to any as was resolved in the Case of one Pincent But if an Administrator durante minori aetate brings an Action he must averr the Administrator or Executor to be under the Age of Seventeen years 6. Sixthly it was urg'd as resolv'd in Turners Case Turners Case 8. Rep. f. 132. That the Recital of Allingtons Declaration in London not mentioning the Debt to be per scriptum obligatorium it shall not be intended to be so And it was urg'd as resolv'd in that Case of Turner also That it being a Debt but by simple Contract the Administrator was not chargeable with it That is a Resolution in Turners Case supernumerary and not necessary to support the Iudgment given and consequently no Iudicial Resolution for the Iudgment given in Turners Case was well given because the Iudgments given before the Mayor of Cicester pleaded in barr of the Plaintiffs Action were resolv'd to be coram non Judice because it appear'd not that the Mayor of Cicester had any Iurisdiction to hold Plea by Patent or Prescription But admitting that an Executor or Administrator according to that Resolution is not chargeable if by chargeable be meant compellable at the Common Law in an Action of Debt brought upon a simple Contract of the Testator or Intestate to pay such Debt what would it avail the Plaintiff in that Case or can in this Case unless the Resolution had been That though the Iurisdiction of the Court of Cicester had been well set forth yet a Iudgment there obtain'd against the Executor upon a simple Contract of the Testators had been no Barr in an Action of Debt brought upon an Obligation of the Testators But there is no such Resolution there for a Iudgment obtain'd upon such a simple Contract is as much a Iudgment when had as any other upon Obligations and the Books and use are clear That Judgments must be satisfied before Debts due by Obligation It is true it is a Waste of the Goods of the Dead in the Executor to pay voluntarily a Debt by simple Contract before a Debt by Obligation whereof he had notice and not otherwise in that Case But no man ever thought it a Devastavit in the Executor to satisfie a Iudgment obtain'd upon a simple Contract before a Debt due by Obligation Yet I shall agree the Executor by the Common Law might have prevented this Iudgment by abating the Plaintiffs Writ at first which he had power lawfully to do but he had equal
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
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
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
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
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
ipso facto but after six Months after notice of such deprivation given by the Ordinary to the Patron By these Clauses immediately upon not reading the Articles according to the Statute the Incumbent is depriv'd ipso facto And the Patron may presently upon such Deprivation present if he will and his Clerk ought to be admitted and instituted but if he do not no lapse incurrs until after six months after notice of the Deprivation given to the Patron by the Ordinary who is to supply the Cure until the Patron present Another Clause of the Statute is No person shall hereafter be admitted to any Benefice with Cure except he then be of the Age of Three and twenty years at the least and a Deacon and shall first have subscribed the said Articles in the presence of the Ordinary c. And relative to this Clause there is a third That all Admissions to Benefices Institutions and Inductions of any person contrary to any provision of this Act shall be utterly void in Law as if they never were Now though the Church of Wringlington became void immediately of what value soever it were by admission and institution of the Defendant into the Church of Elme by the ancient Canon Law receiv'd in this Kingdom which is the Law of the Kingdom in such Cases if the Patron pleas'd to present And for that the Patron accordingly did within a month after the Defendants Admission and Institution into the Rectory of Elme present his Clerk Hugh Ivy to the Church of Wringlington who was thereto Admitted Instituted and Inducted within that time which was a month before the Defendant was depriv'd for not reading the Articles in the Church of Elme Whereby any Interest the Defendant had to Wringlington was wholly avoided as the Case is Yet if the Church of Wringlington had been under value and the Patron had not presented to it his Clerk before Higden's Deprivation of the Church of Elme he might not have still continued Parson of Wringlington as if never Admitted Instituted or Inducted to the Rectory of Elme But if he had not subscribed the Articles before the Ordinary upon his Admission and Institution to the Rectory of Elme he had never been Incumbent of Elme and consequently never accepted a second Benefice to disable him of holding the first And so it is resolv'd in the last Case of the Lord Dyer 23 of the Queen where a man having a Living with Cure under value accepted another under value also having no Qualification or Dispensation and was Admitted Instituted and Inducted into the Second but never subscribed the Articles before the Ordinary as the Statute of 13. requires Vpon question whether the first Living vacavit per mortem of him or not the Court resolv'd That the first Living became vacant by his death and not by accepting the second because he was never Incumbent of the second for not subscribing the Articles before the Ordinary whereby his Admission Institution and Induction into the second Living became void as if they had never been This Case was urg'd at the Barr for the Defendant as if his not reading the Articles within two months after his Induction into Elme had still as in the Lord Dyers Case left him Incumbent of the first Living But that was mistaken for not subscribing the Articles made that he never was Incumbent of the second Living and consequently then there was no cause to lose the first But the Defendant having subscribed the Articles upon his Admission and Institution was perfect Incumbent pro tempore of the second Living and thereby lost the first and afterwards lost the second for not reading the Articles within two months after his Induction so as he was compleat Incumbent by Admission Institution and Induction of the second Living full two months before he lost it It was upon this Clause of the Statute smartly urg'd by my Brother Baldwyn That if the Statute makes the Defendants Admission Institution and Induction to the second Living void as if they had never been For what reason doth he not still retain his first The Answer is as before 1. That his not retaining the first is no effect nor consequent of his losing the second But the first was lost because he accepted a second and the right Patron thereupon presented to the first so as he lost the first whilst he was and for being lawful Incumbent of the second And therefore could be no effect nor consequent at all proceeding from his loss of the second by not reading the Articles after more than if he had lost the second by Deprivation for Heresie or other cause 2. The Clause of 13. is not That all Admissions Institutions and Inductions to Benefices where any person is depriv'd by virtue of that Act shall be void as if they never were for so should the Clause have been to warrant the Objection made at the Barr. But the Clause is That all Admissions Institutions and Inductions made contrary to any provision of the Act shall be void as if they never were But Higden's Admission Institution and Induction to the Church of Elme was not contrary to any provision of the Act but every way legal but had he not subscribed the Articles before the Ordinary then his Admission Institution and Induction had been contrary to the provision of the Act and so void as if they never were The Chief Justice delivered the Opinion of the Court and Judgment was given for the Plaintiff Bushell's Case THE King 's Writ of Habeas Corpus Dat. 9 die Novembris 22 Car. 2. issued out of this Court directed to the then Sheriffs of London to have the Body of Edward Bushell by them detained in Prison together with the day and cause of his Caption and Detention on Friday then next following before this Court to do and receive as the Court should consider as also to have then the said Writ in Court Of which Writ Patient Ward and Dannet Foorth then Sheriffs of London made the Retorn following annex'd to the said Writ That at the Kings Court of a Session of Oyer and Terminer held for the City of London at Justice Hall in the Old Baily London in the Parish of St. Sepulchres in Farringdon Ward without London on Wednesday 31 die August 22 Car. 2. before Sir Samuel Sterling then Mayor of London and divers other his Majesties Justices by virtue of his Majesties Letters Patents under the Great Seal of England to them any four or more of them directed to enquire hear and determine according to the tenor of the said Letters Patents the Offences therein specified And amongst others the Offences of unlawful Congregating and Assemblies within the limits appointed by the said Commission within the said City as well within Liberties as without Edward Bushel the Prisoner at the Barr was committed to the Goal of Newgate to be there safely kept under the Custody of John Smith Knight and James Edwards then Sheriffs of the said City
by virtue of a certain Order then and there made by the said Court of Sessions as followeth Ordinatum est per Curiam hic quod Finis 40 Marcarum separatim ponatur super Edwardum Bushell and other Eleven persons particularly named and upon every of them being the Twelve Jurors then and there sworn and charg'd to try several Issues then and there joyn'd between our Lord the King and William Penn and William Meade for certain Trespasses Contempts unlawful Assemblies and Tumults made and perpetrated by the said Penn and Mead together with divers other unknown persons to the number of Three hundred unlawfully and tumultuously assembled in Grace-Church-street in London to the disturbance of the Peace whereof the said Penn and Mead were then Indicted before the said Justices Upon which Indictment the said Penn and Mead pleaded they were Not guilty For that they the said Jurors then and there the said William Penn and William Mead of the said Trespasses Contempts unlawful Assemblies and Tumults Contra legem hujus Regni Angliae contra plenam manifestam evidentiam contra directionem Curiae in materia legis hic de super praemissis eisdem Juratoribus versus praefatos Will. Penn Will. Mead in Curia hic aperte datam declaratam de praemissis iis impositis in Indictamento praedicto acquietaverunt in contemptum Domini Regis nunc legumque suarum ad magnum impedimentum obstructionem Justitiae necnon ad malum exemplum omnium aliorum Juratorum in consimili casu delinquentium Ac super inde modo ulterius ordinatum est per Curiam hic quod praefatus Ed. Bushell capiatur committatur Gaolae dicti Domini Regis de Newgate ibidem remansurus quousque solvat dicto Domino Regi 40 Marcas pro fine suo praedicto vel deliberatus fuerit per debitum legis Cursum Ac eodem Edwardo Bushell ad tunc ibidem capto commisso existente ad dictam Gaolam de Newgate sub custodia praefat Johannis Smith Jacobi Edwards adtunc Vic. Civitatis Lond. praedict in eorum Custodia in Gaola praedict existente remanente virtute ordinis praedict iidem Johannes Smith Jacobus Edwards postea in eorum exitu ab officio Vic. Civitatis Lond. praedict scilicet 28 die Septembris Anno 22. supra dicto eundem Edwardum Bushell in dicta Gaola dicti Domini Regis adtunc existentem deliberaverunt nobis praefatis nunc Vicecomitibus Civitatis praedict in eadem Gaola salvo custodiendum secundum Tenorem effectum ordinis praedictae Et quia praedictus Edwardus nondum solvit dicto Domino Regi praedictum finem 40 Marcarum nos iidem nunc Vicecomites Corpus ejusdem Edwardi in Gaola praedicta hucusque detinuimus haec est causa captionis detentionis praefati Edwardi cujus quidem Corpus coram praefatis Justitiariis paratum habemus The Writ of Habeas Corpus is now the most usual Remedy by which a man is restored again to his Liberty if he have been against Law deprived of it Therefore the Writ commands the Day and the cause of the Caption and Detaining of the Prisoner to be certified upon the Retorn which if not done the Court cannot possibly judge whether the cause of the Commitment and Detainer be according to Law or against it Therefore the cause of the Imprisonment ought by the Retorn to appear as specifically and certainly to the Iudges of the Retorn as it did appear to the Court or Person authorized to commit else the Retorn is insufficient and the consequence must be That either the Prisoner because the cause retorn'd of his Imprisonment is too general must be discharg'd when as if the cause had been more particularly retorn'd he ought to have been remanded or else he must be remanded when if the cause had been particularly retorn'd he ought to have been discharg'd Both which are Inconveniences not agreeing with the dignity of the Law There is a specious Exception to this Rule but doth not materially vary it as shall appear In the present Case it is retorn'd That the Prisoner being a Jury-man among others charg'd at the Sessions Court of the Old Baily to try the Issue between the King and Penn and Mead upon an Indictment for assembling unlawfully and tumultuously did contra plenam manifestam evidentiam openly given in Court acquit the Prisoners indicted in contempt of the King c. The Court hath no knowledge by this retorn whether the Evidence given were full and manifest or doubtful lame and dark or indeed Evidence at all material to the Issue because it is not retorn'd what Evidence in particular and as it was deliver'd was given For it is not possible to judge of that rightly which is not expos'd to a mans Iudgment But here the Evidence given to the Iury is not exposed at all to this Court but the Iudgment of the Court of Sessions upon that Evidence is only expos'd to us who tell us it was full and manifest But our Iudgment ought to be grounded upon our own inferences and understandings and not upon theirs It was said by a Learned Judge If the Jury might be fined for finding against manifest Evidence the retorn was good though it did not express what the Evidence particularly was whereby the Court might Judge of it because retorning all the Evidence would be too long A strange Reason For if the Law allow me remedy for wrong Imprisonment and that must be by judging whether the cause of it were good or not to say the cause is too long to be made known is to say the Law gives a remedy which it will not let me have or I must be wrongfully imprison'd still because it is too long to know that I ought to be freed What is necessary to an end the Law allows is never too long Non sunt longa quibus nihil est quod demere possis is as true as any Axiom in Euclid Besides one manifest Evidence retorn'd had suffic'd without retorning all the Evidence But the other Judges were not of his mind If the retorn had been That the Jurors were committed by an Order of the Court of Sessions because they did minus juste acquit the persons indicted Or because they did contra legem acquit the persons indicted Or because they did contra Sacramentum suum acquit them The Iudges cannot upon the present more judge of the legal cause of their commitment than they could if any of these causes as general as they are had been retorn'd for the cause of their commitment And the same Argument may be exactly made to justifie any of these retorns had they been made as to justifie the present retorn they being equally as legal equally as certain and equally as far from possessing the Court with the truth of the cause and in what condition should all men be for the just Liberty of their persons if such causes should
be admitted sufficient causes to remand persons to prison To those Objections made by the Prisoners Council against the Retorn as too general 1. It hath been said That Institutum est quod non inquiratur de discretione Judicis 2. That the Court of Sessions in London is not to be look'd on as an inferiour Court having all the Judges Commissioners that the Court having heard the Evidence it must be credited that the Evidence given to the Iury of the Fact was clear and not to be doubted As for any such Institution pretended I know no such nor believe any such as it was applyed to the present cause but taking it in another and in the true sense I admit it for truth that is when the King hath constituted any man a Iudge under him his ability parts fitness for his place are not to be reflected on censured defamed or vilified by any other person being allowed and stampt with the Kings Approbation to whom only it belongs to judge of the fitness of his Ministers And such scandalous Assertions or Inquiries upon the Judges of both Benches is forbidden by the Statute of Scandalum Magnatum 2 R. 2. c. 5. Nor must we upon supposition only 2 R. 2. c. 5. either admit Judges deficient in their Office for so they should never do any thing right nor on the other side must we admit them unerring in their places for so they should never do any thing wrong And in that sense the saying concerns not the present Case But if any man thinks that a person concern'd in Interest by the Iudgment Action or Authority exercis'd upon his person or fortunes by a Judge must submit in all or any of these to the implyed discretion and unerringness of his Judge without seeking such redress as the Law allows him it is a perswasion against common Reason the received Law and usage both of this Kingdome and almost all others If a Court Inferiour or Superiour hath given a false or erroneous Iudgment is any thing more frequent than to reverse such Iudgments by Writs of False Judgment of Error or Appeals according to the course of the Kingdome If they have given corrupt and dishonest Iudgments they have in all Ages been complained of to the King in the Starr-Chamber or to the Parliament Andrew Horne in his Mirror of Justices Hornes Mirror f. 296. mentions many Judges punisht by King Alfred before the Conquest for corrupt Iudgments and their particular Names and Offences which could not be had but from the Records of those times Our Stories mention many punisht in the time of Edward the First our Parliament Rolls of Edward the Third's time of Richard the Second's Time for the pernicious Resolutions given at Nottingham Castle afford Examples of this kind In latter times the Parliament Journals of 18 and 21 Jac. the Iudgment of the Ship-mony in the time of Charles the First question'd and the particular Judges impeacht These Instances are obvious and therefore I but mention them In cases of retorns too general upon Writs of Habeas Corpus of many I could urge I will instance in two only One Astwick brought by Habeas Corpus to the Kings Bench 9 El. Moore f. 837. was retorn'd to be committed per Mandatum Nicholai Bacon Militis domini Custodis magni Sigilli Angliae virtute cujusdam Contemptus in Curia Cancellar facti and was presently bail'd 13 Jac. Moore f. 839. One Apsley Prisoner in the Fleet upon a Habeas Corpus was retorn'd to be committed per considerationem Curiae Cancellar pro contemptu eidem Curiae illato and upon this retorn set at liberty In both these Cases no inquiry was made or consideration had whether the Contempts were to the Law Court or equitable Court of Chancery either was alike to the Judges lest any man should think a difference might arise thence The reason of discharging the Prisoners upon those retorns was the generality of them being for Contempts to the Court but no particular of the Contempt exprest whereby the Kings Bench could judge whether it were a cause for commitment or not And was it not as supposeable and as much to be credited That the Lord Keeper and Court of Chancery did well understand what was a Contempt deserving commitment as it is now to be credited that the Court of Sessions did understand perfectly what was full and manifest Evidence against the persons indicted at the Sessions and therefore it needed not to be reveal'd to us upon the retorn Hence it is apparent That the Commitment and Retorn pursuing it being in it self too general and uncertain we ought not implicitly to think the Commitment was re vera for cause particular and sufficient enough because it was the Act of the Court of Sessions And as to the other part That the Court of Sessions in London is not to be resembled to other inferiour Courts of Oyer and Terminer because all the Judges are commission'd here which is true but few are there at the same time and as I have heard when this Tryal was none of them were present However persons of great quality are in the Commissions of Oyer and Terminer through the Shires of the Kingdom and always some of the Judges nor doth one Commission of Oyer and Terminer differ in its Essence Nature and Power from another if they be general Commissions but all differ in the Accidents of the Commissioners which makes no alteration in their actings in the eye of Law Another fault in the retorn is That the Jurors are not said to have acquitted the persons indicted against full and manifest Evidence corruptly and knowing the said Evidence to be full and manifest against the persons indicted for how manifest soever the Evidence was if it were not manifest to them and that they believ'd it such it was not a finable fault nor deserving imprisonment upon which difference the Law of punishing Jurors for false Verdicts principally depends A passage in Bracton is remarkable to this purpose concerning Attainting Inquests Committit Jurator perjurium propter falsum Sacramentum Bracton l. 4. c. 4. f. 288. b. ut si ex certa scientia aliter Juraverit quam res in veritate se habuerit si autem Sacramentum fatuum fuerit licet falsum tamen non committit perjurium licet re vera res aliter se habeat quam juraverat quia jurat secundum conscientiam eo quod non vadit contra mentem Sunt quidam qui verum dicunt mentiendo sed se pejerant quia contra mentem vadunt The same words and upon the same occasion Fleta l. 5. c. 22 f. 336. n. 9. are in effect in Fleta Committit enim Jurator perjurium quandoque propter falsum Sacramentum ut si ex certa scientia aliter juraverit quam res in veritate se habuerit secus enim propter factum quamvis falsum and lest any should think that these passages are to be
them in Civil Tryals And how the Iury should in any other manner according to the course of Tryals us'd find against the direction of the Court in matter of Law is really not conceptible True it is if it fall out upon some special Tryal that the Iury being ready to give their Verdict and before it is given the Iudge shall ask whether they find such a particular thing propounded by him or whether they find the matter of Fact to be as such a Witness or Witnesses have depos'd and the Iury answer they find the matter of Fact to be so if then the Iudge shall declare The matter of Fact being by you so found to be the Law is for the Plaintiff and you are to find accordingly for him If notwithstanding they find for the Defendant this may be thought a finding in matter of Law against the direction of the Court for in that case the Iury first declare the Fact as it is found by themselves to which Fact the Iudge declares how the Law is consequent And this is ordinary when the Iury find unexpectedly for the Plaintiff or Defendant the Iudge will ask How do you find such a Fact in particular and upon their answer he will say then it is for the Defendant though they found for the Plaintiff or è contrario and thereupon they rectifie their Verdict And in these Cases the Iury and not the Iudge resolve and find what the Fact is Therefore alwaies in discreet and lawful assistance of the Iury the Iudge his direction is Hypothetical and upon supposition and not positive and upon coercion viz. If you find the Fact thus leaving it to them what to find then you are to find for the Plaintiff but if you find the Fact thus then it is for the Defendant But in the Case propounded by me where it is possible in that special manner the Iury may find against the Direction of the Court in matter of Law it will not follow they are therefore finable for if an Attaint will lye upon the Verdict so given by them they ought not to be fined and imprisoned by the Judge for that Verdict for all the Iudges have agreed upon a full conference at Serjeants Inn in this case And it was formerly so agreed by the then Judges in a Case where Justice Hide had fined a Jury at Oxford for finding against their Evidence in a Civil Cause That a Jury is not finable for going against their Evidence where an Attaint lies for if an Attaint be brought upon that Verdict it may be affirmed and found upon the Attaint a true Verdict and the same Verdict cannot be a false Verdict and therefore the Jury fined for it as such by the Judge and yet no false Verdict because affirmed upon the Attaint Another Reason that the Jury may not be fined in such case is because until a Jury have consummated their Verdict which is not done until they find for the Plaintiff or Defendant and that also be entred of Record they have time still of deliberation and whatsoever they have answered the Judge upon an interlocutory Question or Discourse they may lawfully vary from it if they find cause and are not thereby concluded Whence it follows upon this last Reason That upon Tryals wherein no Attaint lies as well as upon such where it doth no case can be invented wherein it can be maintained that a Jury can find in matter of Law nakedly against the direction of the Judge And the Judges were as before all of Opinion That the Retorn in this latter part of it is also insufficient as in the former and so wholly insufficient But that this Question may not hereafter revive if possible It is evident by several Resolutions of all the Judges That where an Attaint lies the Judge cannot fine the Jury for going against their Evidence or Direction of the Court without other Misdemeanour For in such case finding against or following the direction of the Court barely will not barr an Attaint but in some case the Judge being demanded by and declaring to the Jury what is the Law though he declares it erroneously Ingersalls C. Cr. 35 El. f. 309. n. 18. and they find accordingly this may excuse the Jury from the Forfeitures for though their Verdict be false yet it is not corrupt but the Iudgment is to be revers'd however upon the Attaint for a man loseth not his right by the Judges mistake in the Law Therefore if an Attaint lies for a false Verdict upon Indictment not Capital as this is either by the Common or Statute Law by those Resolutions the Court would not fine the Jury in this case for going against Evidence because an Attaint lay But admitting an Attaint did not lye as I think the Law clear it did not for there is no Case in all the Law of such an Attaint nor Opinion but that of Thirnings 10 H. 4. Attaint 60. 64. for which there is no warrant in Law though there be other specious Authority against it toucht by none that argued this Case The Question then will be Whether before the several Acts of Parliament which granted Attaints and are enumerated in their order in the Register Reg. f. 122. a. the Judge by the Common Law in all Cases might have fined the Jury finding against their Evidence and direction of the Court where no Attaint did lye or could so do yet if the Statutes which gave the Attaints were repeal'd If he could not in Civil Causes before Attaints granted in them he could not in Criminal Causes upon Indictment wherein I have admitted Attaint lies not for the fault in both was the same viz. finding against Evidence and Direction of the Court and by the Common Law the Reason being the same in both the Law is the same That the Court could not Fine a Jury at the Common Law where Attaint did not lye for where it did is agreed he could not I think to be the clearest position that ever I consider'd either for Authority or Reason of Law After Attaints were granted by Statutes generally As by Westminster the First c. 38. in Pleas Real and by 34 E. 3. c. 7. in Pleas Personal and where they did lye at Common Law which was only in Writs of Assise The Examples are frequent in our Books of punishing Jurors by Attaint But no Case can be offer'd either before Attaints granted in general or after That ever a Jury was punish't by Fin◠and Imprisonment by the Judge for not finding according to their Evidence and his Directtion until Popham's time nor is there clear proof that he ever fined them for that Reason separated from other Misdemeanor If Juries might be fined in such Case before Attaints granted why not since for no Statute hath taken that power from the Judge But since Attaints granted the Judges resolved they cannot Fine where the Attaint lies therefore they could not Fine before Sure this latter Age did
not first discover that the Verdicts of Juries were many times not according to the Judges opinion and liking But the Reasons are I conceive most clear That the Judge could not nor can Fine and Imprison the Jury in such Cases Without a Fact agreed it is as impossible for a Judge or any other to know the Law relating to that Fact or direct concerning it as to know an Accident that hath no Subject Hence it follows That the Judge can never direct what the Law is in any matter controverted without first knowing the Fact and then it follows That without his previous knowledge of the Fact the Jury cannot go against his Direction in Law for he could not direct But the Judge quà Judge cannot know the Fact possibly but from the Evidence which the Jury have but as will appear he can never know what Evidence the Jury have and consequently he cannot know the matter of Fact nor punish the Jury for going against their Evidence when he cannot know what their Evidence is It is true if the Jury were to have no other Evidence for the Fact but what is depos'd in Court the Judge might know their Evidence and the Fact from it equally as they and so direct what the Law were in the Case though even then the Judge and Jury might honestly differ in the result from the Evidence as well as two Judges may which often happens But the Evidence which the Jury have of the Fact is much other than that For 1. Being return'd of the Vicinage whence the cause of Action ariseth the Law supposeth them thence to have sufficient knowledge to try the matter in Issue and so they must though no Evidence were given on either side in Court but to this Evidence the Judge is a stranger 2. They may have Evidence from their own personal knowledge by which they may be assur'd and sometimes are that what is depos'd in Court is absolutely false but to this the Judge is a stranger and he knows no more of the Fact than he hath learn'd in Court and perhaps by false Depositions and consequently knows nothing 3 The Jury may know the Witnesses to be stigmatiz'd and infamous which may be unknown to the parties and consequently to the Court. 4. In many Cases the Jury are to have View necessarily in many by consent for their better information to this Evidence likewise the Judge is a stranger 5. If they do follow his direction they may be attainted and the Iudgment revers'd for doing that which if they had not done they should have been fined and imprisoned by the Judge which is unreasonable 6. If they do not follow his direction and be therefore fined yet they may be attainted and so doubly punisht by distinct Iudicatures for the same offence which the Common Law admits not Chevin and Paramours Case 3 El. Dyer 201. a. n. 63. A Fine revers'd in Banco Regis for Infancy per inspectionem per testimonium del 4. fide dignorum After upon Examination of divers Witnesses in Chancery the suppos'd Infant was prov'd to be of Age tempore finis levati which Testimonies were exemplified and given in Evidence after in Communi Banco in a Writ of Entry in the quibus there brought And though it was the Opinion of the Court That those Testimonies were of no force against the Iudgment in the Kings Bench The Progress in this Writ of Right till Judgment for Paramour the Defendant is at large 13 El. Dyer f. 301. n. 40. yet the Jury found with the Testimony in Chancery against direction of the Court upon a point in Law and their Verdict after affirmed in an Attaint brought and after a Writ of Right was brought and battle joyn'd 7. To what end is the Jury to be retorn'd out of the Vicinage whence the cause of Action ariseth To what end must Hundredors be of the Jury whom the Law supposeth to have nearer knowledge of the Fact than those of the Vicinage in general To what end are they challeng'd so scrupulously to the Array and Pole To what end must they have such a certain Free-hold and be probi legales homines and not of affinity with the parties concern'd To what end must they have in many Cases the view for their exacter information chiefly To what end must they undergo the heavy punishment of the villanous Iudgment if after all this they implicitly must give a Verdict by the dictates and authority of another man under pain of Fines and Imprisonment when sworn to do it according to the best of their own knowledge A man cannot see by anothers Eye nor hear by anothers Ear no more can a man conclude or inferr the thing to be resolv'd by anothers Vnderstanding or Reasoning and though the Verdict be right the Jury give yet they being not assur'd it is so from their own Vnderstanding are forsworn at least in foro conscientiae 9. It is absurd a Jury should be fined by the Judge for going against their Evidence when he who fineth knows not what it is as where a Jury find without Evidence in Court of either side so if the Iury find 14 H. 7. f. 29. per Vavasor in Camer Scace without contradiction Hob. f. 227. upon their own knowledge as the course is if the Defendant plead Solvit ad diem to a Bond prov'd and offers no proof The Jury is directed to find for the Plaintiff unless they know payment was made of their own knowledge according to the Plea And it is as absurd to fine a Jury for finding against their Evidence when the Judge knows but part of it for the better and greater part of the Evidence may be wholly unknown to him and this may happen in most Cases and often doth as in Graves and Shorts Case Error of a Iudgment in the Common Bench Graves vers Short 40 El. Cro. f. 616. the Error assign'd was The Issue being whether a Feoffment were made and the Jurors being gone together to conferr of their Verdict one of them shew'd to the rest an Escrow pro petentibus not given in Evidence by the parties per quod they found for the Demandant upon Demurrer adjudg'd no Error for it appears not to be given him by any of the parties or any for them it must be intended he had it as a piece of Evidence about him before and shew'd it to inform himself and his Fellows and as he might declare it as a witness that he knew it to be true They resolv'd If that might have avoided the Verdict which they agreed it could not yet it ought to have been done by Examination and not by Error That Decantatum in our Books Ad quaestionem facti non respondent Judices ad quaestionem legis non respondent Juratores literally taken is true For if it be demanded What is the Fact the Judge cannot answer it if it be asked What is the Law in the Case the Jury
cannot answer it Therefore the parties agree the Fact by their pleading upon Demurrer and ask the Iudgment of the Court for the Law In Special Verdicts the Jury Inform the naked Fact and the Court deliver the Law and so is it in Demurrers upon Evidence in Arrest of Judgments upon Challenges and often upon the Judges Opinion of the Evidence given in Court the Plaintiff becomes Nonsuit when if the matter had been left to the Jury they might well have found for the Plaintiff But upon all general Issues as upon not Culpable pleaded in Trespass Nil debet in Debt Nul tort Nul disseisin in Assize Ne disturba pas in Quare Impedit and the like though it be matter of Law whether the Defendant be a Trespassor a Debtor Disseisor or Disturber in the particular Cases in Issue yet the Jury find not as in a Special Verdict the Fact of every Case by it self leaving the Law to the Court but find for the Plaintiff or Defendant upon the Issue to be tryed wherein they resolve both Law and Fact complicately and not the Fact by it self so as though they answer not singly to the Question what is the Law yet they determine the Law in all matters where Issue is joyn'd and tryed in the principal Case but where the Verdict is Special Hob. f. 227. To this purpose the Lord Hobart in Needler's Case against the Bishop of Winchester is very apposite Legally it will be very hard to quit a Jury that finds against the Law either Common Law or several Statute Law whereof all men were to take knowledge and whereupon Verdict is to be given whether any Evidence be given to them or not As if a Feoffment or Devise were made to one imperpetuum and the Jury should find cross either an Estate for Life or in Fee-simple against the Law they should be subject to an Attaint though no man informed them what the Law was in that Case The legal Verdict of the Jury to be recorded is finding for the Plaintiff or Defendant what they answer if asked to questions concerning some particular Fact is not of their Verdict essentially nor are they bound to agree in such particulars if they all agree to find their Issue for the Plaintiff or Defendant they may differ in the motives wherefore as well as Judges in giving Iudgment for the Plaintiff or Defendant may differ in the Reasons wherefore they give that Iudgment which is very ordinary I conclude with the Statute of 26 H. 8. c. 4. That if any Jurors in Wales do acquit any Felon Murderer or Accessary or give an untrue Verdict against the King upon the Tryal of any Traverse Recognizance or Forfeiture contrary to good and pregnant Evidence ministred to them by persons sworn before the Kings Justiciar That then such Jurors should be bound to appear before the Council of the Marches there to abide such Fine or Ransome for their Offence as that Court should think fit If Jurors might have been fined before by the Law for going against their evidence in matters criminal there had been no cause for making this Statute against Jurors for so doing in Wales only Objections out of the Ancient and Modern Books 1. A Juror kept his Fellows a day and night 8 Ass pl. 35. without any reason or assenting and therefore awarded to the Fleet. This Book rightly understood is Law That he staid his Fellows a day and a night without any reason or assenting may be understood That he would not in that time intend the Verdict at all more than if he had been absent from his Fellows but wilfully not find for either side In this sense it was a Misdemeanor against his Oath For his Oath was truly to try the Issue which he could never do that resolv'd not to conferr with his Fellows And in this sense it is the same with the Case 34 E. 3. where Twelve being sworn and put together to treat of their Verdict 34 E. 3. Bra. Title Jurors n. 46. one secretly withdrew himself and went away for which he was justly fined and imprison'd and it differs not to withdraw from a mans duty by departing from his Fellows and to withdraw from it though he stay in the same Room and so is that Book to he understood But if a man differ in Iudgment from his Fellows for a day and a night though his dissent may not be as reasonable as the Opinion of the rest that agree yet if his Iudgment be not satisfied one disagreeing can be no more criminal than four or five disagreeing with the rest 2. A Juror would not agree with his Fellows for two dayes 41 Ass p. 11. and being demanded by the Judges If he would agree said He would first die in Prison whereupon he was committed and the Verdict of the Eleven taken but upon better advice the Verdict of the Eleven was quasht and the Juror discharg'd without Fine and the Justices said the way was to carry them in Carts until they agreed and not by fining them and as the Judges err'd in taking the Verdict of Eleven so they did in imprisoning the Twelfth and this Case makes strongly that the Juror was not to be fined who disagreed in Iudgment only Much of the Office of Jurors in order to their Verdict is ministerial as not withdrawing from their Fellows after they are sworn not withdrawing after challenge and being tryed in before they take their Oath 36 H. 6. f. 27. Br. Jurors 18. not receiving from either side Evidence after their Oath not given in Court not eating and drinking before their Verdict refusing to give a Verdict and the like wherein if they transgress they are finable but the Verdict it self when given is not an Act ministerial but judicial and according to the best of their judgment for which they are not finable nor to be punisht but by Attaint 3. The Case of 7 R. 2. Title Coronae Fitz. 108. was cited where upon acquittal of a Common Thief the Judge said The Jury ought to be bound to his good behaviour during his life But saith the Book quere per quel ley but that was only gratis dictum by the Judge for no such thing was done as binding them Hob. f. 114. 4. Bradshaw and Salmons Case was urg'd where a Jury had given excessive Damages upon a Tryal in an Action of Covenant and the Court of Star-Chamber gave Damages to the Complainant almost as high as the Jury had given upon the Tryal But the Jury who gave the Damages were not question'd Though saith the Book they might have been because they receiv'd Briefs from the Plaintiff for whom they gave Damages which was a Misdemeanor but the express Book is That the Jury could not be punisht by Information for the excessive Damages but only by Attaint therefore not for their false Verdict without other Misdemeanor which answers some other Cases alledg'd Nor can any man shew
though it was said That a Jury was ever punisht upon an Information either in Law or in the Star-Chamber where the charge was only for finding against their Evidence or giving an untrue Verdict unless Imbracery Subordination or the like were joyn'd 5. It was said A Perjury in facie Curiae is punishable by the Judge and such is it if Jurors go against their Evidence perhaps a Witness may be punisht for Perjury in facie Curiae which I will not maintain to be Law But a Jury can never be so punisht because the evidence in Court is not binding evidence to a Jury as hath been shew'd 6. Some Records were cited of Fines pro Concelamento no doubt it is an Article inquirable in every Oyer and Terminer and one Jury may find it upon another 7. Braynes Case was urg'd 42 El. Cr. 778. but the Jurors were there fined for a manifest Combination to delude the Court by agreeing upon two Verdicts and concealing the latter if the Court would be satisfied with the former 8. Wharton's Case reported by two Reporters Yelverton saith That the Judges whereof Popham was one and a Privy Counsellor were very angry and fined the Jury for their Verdict and finding against direction In those Reports that pass under the Name of Noy's the same Case is reported with this That the Judges conceiv'd the Jury had been unlawfully dealt with to give that Verdict which if true the fining was lawful and the Case therein reported short by Yelverton 9. Wagstaff's Case in the Kings Bench lately was the same with the present Case but by the Record it is reasonable to think the Jurors committed some fault besides going against their Evidence for they were unequally fined But however All the Judges having upon this Retorn resolv'd That finding against the Evidence in Court or Direction of the Court barely is no sufficient Cause to fine the Jury answers all these Cases if not answered before 10. There remains Southwell's Case reported by Leonard Lannoys C. Moore 730. some Cases out of the Court of Wards in Lannoy's Case reported by Serjeant Moore f. 730. where Jurors were sent to the Fleet or threatned to be sent for not finding Offices according to direction of the Court. 1. An Inquest of Office is not subject to an Attaint 2. It neither determines any mans right nor doth any party put any Tryal upon them 3. They are only to find naked matter of fact 3 H. 7. f. 10. b. 2 H. 4. f. 5. a. as the Books are of 3 H. 7. f. 10. b. and 2 H. 4. f. 5. a. but principally an Office for the King is in many Cases as necessary as an Entry for a common person without which he can never come by or try his right nor can the King without an Office know whether he hath right to a Ward a Morimain or the like and as it is an injury to hinder a man from his Entry whereby his right may be tryed so it is not to find an Office for the King whereby his right may be tryed which concludes no man but enables the King to a Tryal of his right and in truth is only a finding of matter of fact and no more Therefore perhaps it may be an Offence as of a Witness refusing his Testimony not to find an Office for the King when clear proof is made of the matter of Fact but if proof be not made at all or be altogether doubtful or that the matter be matter of Law the Inquest may find an Ignoramus which a Jury upon a Tryal can never do But of this I shall say no more it concerning not the Case in question Presidents That the Court of Common Pleas upon Habeas Corpus hath discharg'd Persons imprison'd by other Courts upon the insufficiency of the Retorn only and not for Priviledge 5 Jac. Sir Anthony Ropers Case 12 Rep. Sir William Chanseys C. and Edward Thicknes C. 12 Rep. 8 Jac. Sir Anthony Roper committed by the High Commission Court discharg'd absolutely in the Common Pleas as unlawfully committed and detain'd without any mention of Priviledge George Milton imprisoned for Contempt scandalous Words of the Court and convicted of Drunkenness the Causes resolv'd insufficient and therefore dimittitur à Prisona and the Goaler discharg'd of him but he gave Bayl to attend the pleasure of the Court. 4 Car. 1. Elizabeth Ash committed by the High Commission pro lenocinio in like manner discharg'd the Cause being insufficient to detain her in Prison or to hinder her from the priviledge of that Court but no other mention of Priviledge put in Bayl. 7 Jac. Richard Hayes for refusing to do Penance as injoyn'd committed by the High Commission the Cause judg'd insufficient to commit but gave Bayl as before he demanded a Habeas Corpus by reason of Priviledge But it is to be observ'd That Priviledge lies only where a man is Officer of the Court or hath a prior suit in the Common Pleas depending and is elsewhere arrested to answer and molested that he cannot prosecute his Suit he is then priviledged justly and without wrong because his Prosecutor elsewhere might have sued if he pleas'd in the Common Pleas. All Priviledge is either for Officers Clerks or Attorneys of the Court not to be sued elsewhere or for persons impleading or impleaded having priority of Suit in the Common Pleas arrested or fued in other Iurisdictions or for the Menial Servants of such Officers These Priviledges are not detrimental to any because whoever hath occasion to sue an Officer or any other having priority of Suit as before is not restrained to sue them in the Common Pleas but is restrained from suing elsewhere And this is the true Priviledge of the Court. And the way of enjoying this Priviledge was by Writs of Priviledge to Supersede the proceeding of other Courts against such who had the Priviledge of the Common Pleas as is yet ordinary in the Cases of Attorneys Officers and Clerks And in such Writs the cause of Priviledge is mentioned 21 H. 6. f. 20. 22 H. 6. f. 38. 34 H. 6. f. 15. and as to their Menial Servants if not true may be Travers'd As 22 H. 6. 38. Debt was brought against Baron and Feme and a Supersedeas out of the Chancery Vide Dyer 12 El. f. 287. pl. 48. Vid. the Supersed for Clerks of the Court and for Attorneys anciently and their great difference Reg. Jud. f. 84. a. But now Attorneys are inroll'd as well as Officers was cast for the Baron as Menial Servant to an Officer of Chancery whereupon the Plaintiff said it was contain'd in the Writ that the Husband was Menial Servant to R. J. del Chancery whereas he was not his Menial Servant and thereupon Issue was taken But Quere of the Officers appearing of Record in the Court may be Travers'd Hence it follows Though proceeding in other Courts against a person priviledged in Banco might be Superseded yet it was when
been breach'd is no Judicial Opinion nor more than a gratis dictum But an Opinion though Erroneous concluding to the Iudgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer Yet if a Court give Judgment judicially another Court is not bound to give like Judgment unless it think that Judgment first given was according to Law For any Court may err else Errors in Judgment would not be admitted nor a Reversal of them Therefore if a Judge conceives a Judgment given in another Court to be erroneous he being sworn to judge according to Law that is in his own conscience ought not to give the like Judgment for that were to wrong every man having a like cause because another was wrong'd before much less to follow extra-judicial Opinions unless he believes those Opinions are right The other Case is in Coke 5 Car. Salvin versus Clerk in Ejectment upon a special Verdict Alexander Sidenham Tenant in tayl to him and the Heirs males of his body the Reversion to John his eldest Brother made a Lease for three Lives warranted by the Statute of 32 H. 8. c. 28. with warranty And after 16 Eliz. levies a Fine with warranty and proclamations to Taylor and dies without Issue male leaving Issue Elizabeth his Daughter Mother to the Plaintiffs Lessor In 18 Eliz. the Lease for Lives expir'd In 30 Eliz. John the elder Brother died without Issue the said Elizabeth being his Neece and Heir The Defendant entred claiming by a Lease from Taylor and Points entred upon him as Heir to Elizabeth A question was mov'd upon a suppos'd Case and not in fact within the Case Whether if the Fine had not been with proclamation as it was and no Non-claim had been in the Case as there was this warranty should make a discontinuance in Fee and barr Elizabeth it not descending upon John after Alexanders death but upon Elizabeth who is now also John's Heir or determined by Alexander's death The Judges were of opinion as the Reporter saith That the warranty did barr Elizabeth and consequently her Heir because the Reversion was discontinued by the Estate for Lives and a new Fee thereby gain'd and the Reversion displac'd thereby and the warranty was annex'd to that new Fee But this Case is all false and mis-reported 1. For that it saith the Lease for Lives was a discontinuance of the Reversion thereby a new Fee gain'd to Tenant in tayl which he passed away by the Fine with warranty which could not be for in the Case it appears the Lease was warranted by the Stat. of 32 H. 8 and then it could make no discontinuance nor no new Fee of a Reversion could be gain'd 40 Eliz. Keen Copes C. 602. pl. 13. and then no Estate to which the warranty was annex'd and so was it resolv'd 40 El. Keen Copes Case 2. That Opinion was extra-judicial it being concerning a point not in the Case but suppos'd 3. That Case was resolv'd upon the point of Non-claim and not upon this of the warranty which was not a point in the Case 4. Some of the Judges therefore spoke not to that point as appears in the Case As to the second Question Admitting the warranty of Tenant in tayl doth bind the Donor and his Heirs yet in regard the Defendant Tenant in possession cannot derive the warranty to her self from the Feoffees as Assignee or otherwise Whether she may rebutt the Demandants or not by her possession only is the question and I conceive she may not as this Case is I shall begin with those Authorities that make and are most press'd against me which is the Authority of Sir Edward Coke in Lincoln Colledge Case in the third Report and from thence brought over to his Littleton f. 385. a. His words in Lincoln Colledge Case f. 63. a. are He which hath the possession of the Land shall rebutt the Demandant himself without shewing how he came to the possession of it for it sufficeth him to defend his possession and barr the Demandant and the Demandant cannot recover the Land against his own warranty And there he cites several Cases as making good this his Assertion In the same place he saith it is adjudg'd 38 E. 3. f. 26. That an Assignee shall rebutt by force of a warranty made to one and his Heirs only This Doctrine is transferred to his Littleton in these words If the warranty be made to a man and his heirs without this word Assignes yet the Assignee or any Tenant of the Land may rebutt And albeit no man shall vouch or have a Warrantia Chartae either as party Heir or Assignee but in privity of Estate yet any one that is in of another Estate be it by disseisin abatement intrusion usurpation or otherwise shall rebutt by force of the warranty as a thing annex'd to the Land which sometimes was doubted in our Books when as in the Cases aforesaid he that rebutteth claimeth under and not above the warranty I shall clearly agree no man shall vouch or have a warrantia Chartae who is not in in privity of Estate that is who hath not the same Estate as well as the same Land to which the warranty was annexed And the reason is evident because the Tenant must recover if the Land be not defended to him by the warranter such Estate as was first warranted and no other unless a Fee be granted with warranty only for the life of the Grantee or Grantor in which Case the Grantee upon voucher recovers a Fee though the warranty were but for life I shall likewise agree the Law to be as Sir Edward Coke saith in both places if his meaning be that the Tenant in possession when he is impleaded may rebutt the Demandant without shewing how he came to the possession which he then hath when impleaded be it by dissism abatement intrusion or any other tortious way And for the reason given in Lincoln Colledge Case That it sufficeth that the Tenant defend his possession But if his meaning be that the Tenant in possession need not shew that the warranty ever extended to him or that he hath any right to it then I must deny his Doctrine in Lincoln Colledge Case or in Littleton which is but the former there repeated to be Law For as it is not reasonable a man should recover that Land which he hath once warranted to me from me what title soever I have in it at the time when he impleads me So on the other side it is against reason I should warrant Land to one who never had any right in my warranty And the same reason is if a man will be warranted by Rebutter he should make it appear how the warranty extends to him as if he will be warranted by Voucher for the difference is no other than that in the case of Voucher a stranger impleads him in
Courts upon the insufficiency of the Return only and not for priviledge 154 5. Where a man is brought by Habeas Corpus and upon the Return it appears that he was imprisoned illegally though there is no cause of priviledge for him in the Court yet he shall not be remanded to his unlawful Imprisonment 156 6. The Kings Bench may bayl if they please in all Cases but the Common Bench must remand if the cause of the imprisonment returned is just 157 Heir 1. Children shall inherit their Ancestors without limitation in the right ascending Line and are not inherited by them 244 2. In the collateral Lines of Uncle and Nephew the Uncle as well inherits the Nephew as the Nephew the Uncle ibid. 3. The Heir shall never be disinherited by an Estate given by Implication in a Will if such Implication be only constructive and possible but nor a necessary Implication viz. such an Implication that the Devisee must have the thing devised or none else can have it 262 263 268 4. He that is priviledged by the Law of England to inherit there must be a Subject of the Kings 268 5. The four several ways that a man born out of England may inherit in England 281 6. How long the Heir shall continue in Ward upon the Devise of his Father and a full Exposition of the Statute of 12 Car. 2. 178 7. The Heir of the Conizee of a Fine only shall take nothing by Discent 41 Husband and Wife See Baron Feme  Imprisonment See Title Habeas Corpus  Incest 1. INcest was formerly of Spiritual Conuzance 212 2. The primitive Christian Church could punish incestuous marriages no other way than only by forbidding them communion with them 313 3. The Judges have now full conuzance of what Marriages are incestuous and what not 207 209 210 4. Among the Hebrews there was no Divorce for Incest but the Marriage was void and the Incest punished as in persons unmarried ibid. Incumbent 1. One Incumbent may sue a Writ of Spoliation against the other where the Patrons right comes in question 24 2. If an Incumbent with Cure take another Benefice with Cure the first is void and the Patron may present 21 3. A Bishop may be an Incumbent after Consecration 24 4. The Kings Confirmation of the Commendam transfers no right into the Incumbent 26 5. Where the Incumbent doth not read the Articles according to the Statute he stands ipso facto deprived 131 132 6. And if he had not subscribed the Articles he had been never Incumbent 133 Infant 1. Where the Gardianship of an Infant is devised since the Statute of 12 Car. 2. what passes thereby together with a full Exposition of that Statute from 177 to 186 2. He is capable at Seventeen years of Age of taking Administration in his own name 93 Institution and Induction 1. By Induction into the Rectory the Parson is seised of all the possessions belonging to his Rectory 198 2. Institution and Induction is a good Title until a better appears 7 8 3. Where after Institution and Induction the party inducted may bring his Ejectment and shall not be put to his Quare Impedit 129 130 131 Iointenants 1. There can be no Jointenants in Occupancy 189 2. They may release or confirm to each other and thereupon those priviledges which did belong to both shall pass to one of them 45 Ireland See Alien Error 1. Ireland is a conquer'd Kingdom and appears so by the express words of an Act of Parliament there 292 2. Though Ireland hath its own Parliament yet it is not absolute sui Juris ibid. 3. What things the Parliament of Ireland cannot do ibid. 4. When Ireland received the Laws of England 293 298 5. What Laws made in the Parliament of England are binding in Ireland 293 Issue 1. No Issue can be joyned of matter in Law 143 Iudges of Iustices 1. Where the Law is known and clear although it is unequitable and inconvenient yet Judges must adjudge it as it is 37 285 2. But where it is doubtful and not clear there they must Interpret it to be as is most consonant to equity 38 3. Defects in the Law can only be remedied in Parliament 38 285 4. Judges must judge according as the Law is not as it ought to be but if inconveniences necessarily follow out of the Law the Parliament only can cure them 285 5. An Opinion given in Court if not necessary to the Judgment given upon Record is no Judicial Opinion no more than a gratis dictum 382 6. But an Opinion though erroneous concluding to the Judgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer 382 7. When the King hath constituted any man a Judge his Ability Parts and Fitness for the place are not to be reflected upon or censured by any other person being allowed by the King who only is to judge of the fitness of his Ministers 138 8. We must not upon supposition only admit Judges deficient in their Office for so they should never do right Nor on the other side must we admit them unerring in their places for so they should never do any thing wrong 139 9. Judges have in all Ages been complained of and punished for giving dishonest and corrupt judgments 139 10. A Judge cannot Fine and Imprison a Jury for giving a Verdict contrary to his Directions 146 147 148 149 11. Judges ought not to abate Writs ex officio 95 97 12. The Judges direction to the Jury ought to be upon Supposition and not Positive viz. if you find the Fact thus then it is for the Plaintiff if you find it thus then for the Defendant 144 13. The Judge can never direct what the Law is in any controverted matter until he first knows the Fact 147 Iudgment See Error 1. A Judgment is the Act of the Court and compulsory to the Defendant 94 95 2. Where the Plaintiff makes it appear to the Court that the Defendants Title is not good but doth not set forth a good Title for himself the Court shall never give Judgment for him 60 3. An ill Declaration will not avoid the Judgment it only makes it erroneous 93 94 4. An erroneous Judgment is a good barr for an Executor in an Action brought against him 94 5. A Judgment given in England ought not to be executed in Wales 398 6. In a Quare Impedit where the Bishop disclaims and the Parson loseth by Default there shall go a Writ to the Bishop Non obstante Reclamatione to remove the Incumbent but with a Cessat Executio until the Plea is determined between the Plaintiff and Patron 6 Iurisdiction See Courts Prohibition 1. When the Question is of a Jurisdiction in a Dominion belonging to England how to be determined 418 2. Where ever a Debt grows due yet the Debtor is indebted to the Creditor
in any place where he is as long as the Debt is unsatisfied 92 3. It is the Defendant not the Plaintiff must take Exceptions to the Jurisdiction of the Court 93 4. Where the appearance of the Tenant upon the Summons shall not affirm the Jurisdiction of the Court 405 5. The Temporal Courts may prohibit the Spiritual Courts in Cases of incestuous Marriages and Marriages within or without the Levitical Degrees 207 Iurors See Verdict Attaint 1. Jurors must be returned out of the Vicinage where the cause of Action ariseth 148 2. What is the legal Verdict of the Jury 150 3. No evidence can be given to a Jury of what is Law 143 4. The Verdict of the Jury cannot change the Reason of the Law 101 5. The Jury and not the Judge resolve and find what the Fact is 144 6. A Jury-man swears to what he can infer and conclude from the Testimony of Witnesses by the act and force of his Understanding to be the Fact inquired after 142 7. The Jury may have Evidence from their own personal knowledge 147 8. Although a Jury find contrary to their Evidence yet they are not finable an Attaint only lies against them 144 145 147 148 149 9. Neither are they fineable where an Attaint doth not lye 145 10. A Juror kept his Fellows a day and night without any reason for assenting and therefore sent to the Fleet 151 11. A Jury was never punisht upon an Information either in Law or the Star Chamber for finding an untrue Verdict unless Imbracery Subornation or the like were joyned 152 12. Where the Judges conceive the Jury have been unlawfully dealt withal to give their Verdict they are finable 153 13. The Jury can never find Ignoramus upon a Tryal 154 King See Grants of the King Prerogative 1. No Canon Ecclesiastical can be made without the Kings license and assent 329 2. The King will not take away another mans Right against his Will 14 3. The King cannot pardon an Offence done to a particular person 333 4. Where the Suit is only the Kings for the breach of a penal Law and which is not to the damage of a third person the King may dispense 334 336 5. But where the Suit is the Kings only for the benefit of a third person and the King is entituled by the prosecution and complaint of such third person the King cannot release or dispense with such Suit without the Agreement of such party concerned 334 336 356 6. If a Title appear for the King the Court Ex officio ought to give Judgment for him though no party 299 7. Where the Offence wrongs none but the King he may dispense with it 344 8. What things the King may pardon but not dispense with 333 334 336 c. 9. Offences against penal Laws not to be dispensed with 333 334 342 c. 10. Where the King may dispense generally he is not bound to it but may limit his Dispensation if he think fit 346 11. Where the King can dispense with particular persons he is not confined to number or place but may license as many and in such places as he thinks fit 347 12. If the Kings Grant is not void in its Creation it remains good after his death against his Successor 332 13. Where the exercise of a Trade is generally prohibited the Kings license must be without any limitation to him that hath it to exercise his Trade as before it was prohibited otherwise it is no license 346 14. The Kings Confirmation of a Commendam transfers no Right to the Incumbent 26 15. Where in a Quare Impedit brought by the King his Title appears to be but a bare Suggestion he cannot forsake his own Title and endeavour to destroy the Defendants 61 16. Where the King presents by Lapse and hath then other good Title to present yet it is void 14 17. Those under the Kings power as King of England in another Princes Dominions are under his Laws 282 18. The Natives of any of the Kings Forreign Plantations are his Majesties Natural Subjects and shall inherit in England 268 in loco 278 279 Kings Bench See Courts 1. 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 likewise do it 157 2. Upon the Return of Habeas Corpus the Kings Bench may if they please bayl the prisoner but the Common Pleas must remand him if the cause of the imprisonment returned is just 157 3. The Kings Bench may quash the Order of Commitment upon a Certiorari 157 4. May grant Prohibitions for encroaching Jurisdiction ibid. Lapse 1. PResentation by Lapse makes no severance of the Advowson 14 2. Where a man accepts a second Benefice with Cure without a Dispensation or Qualification the first Benefice is void and the Patron may present but if he doth not present then if it is under value no Lapse shall incur until there is a Deprivation and Notice But if it is above value then the Patron must present within six months 131 132 Law See Construction of Law 1. When a Law is given to any people it is necessary that it be conceived and published in words which may be understood for without that it cannot be obeyed and the Law which cannot be obeyed is no Law 305 2. The meaning of the words in any Law are to be known either from their use and signification according to common acceptation before the Law made or from some Law or Institution declaring their signification 305 3. A Law which a man cannot obey nor act according to is void and no Law 337 4. To do a thing which no Law can make lawful is malum in se 337 5. Where the Law is known and clear though it be unequitable and inconvenient yet Judges must determine as it is without regarding the unequitableness or inconveniences 37 6. Where the Law is doubtful and not clear the Judges ought to interpret it as is most consonant to equity 38 7. Defects in the Law can be remedied only in Parliament 38 116 132 8. Whatever is declared by Act of Parliament to be against Gods Law must be so admitted to be by us because it is so declared by an Act of Parliament 327 9. A Law not published is no more obligative then a Law only concealed in the mind of the Law-giver is obligative 228 236 10. A lawful Canon is the Law of the Kingdom as well as an Act of Parliament and whatever is the Law of the Kingdom is as much the Law as any thing else that is so 21 132 327 11. It is irrational to suppose men ignorant of those Laws for the breach of which they are to be punisht 208 12. Every thing in one sense is taken for Common Law if it be Law when it appears not to be by Act of Parliament 163 13. It is never prudent to change a Law which cannot be bettered in the Subject