Inst 125. though the Statutes of Hen. VIII impower Commissions for trial of Treasons Committed beyond the Seas yet this Court doth and may still take Conusance of such Causes 4 Inst 124. Its Sentences are only reversable by and upon Appeal to the King no Writ of Error or false Judgment lies upon any of them which shews the greatness of the Court and the difference of its Jurisdiction from other Courts which may be some of thereasons why no Prohibition was ever granted to it and why the Parliament of Rich. II. gave the Remedy of a Privy Seal wherefore it was prayed that the Judgment should be Reversed On the other side it was argued by the Council in behalf of the Plaintiff in the Original Action that this Judgment ought to be affirmed and it was after this manner there seem three Queries in the Case 1. If any Prohibition lies to that Court 2. If any Cause here for a Prohibition and 3. If there be any such Court as that before the Earl Marshal but another doubt was raised whether any of these Questions could be such upon this plea which is concluded to the Jurisdiction for that seems to make only one doubt whether the Court of Exchequer could hold Plea of an Action for proceeding contrary to a Prohibition already granted but this was waved and then it was argued 1. That a Prohibition doth lie to this Court of Chivalry in case it exceeds the Jurisdiction proper to it and it was agreed that the Office of Constable is Ancient and by Cambden is held to have been in Ure in this Kingdom in the Saxon's time though the Office of Marshal is but of a puisne date but however Great and Noble the Office is however large and Extensive the Jurisdiction is yet 't is but limitted and Coke in 4 Inst 123. says that 't is declared so by the Statute of Rich. II. where 't is said that they incroached in great prejudice of the King's Courts and to the great grievance and oppression of his people and that their proper Business is to have conusance of Contracts and Deeds of Arms and of War out of the Realm which cannot be determined or discussed by the Common-Law which other Constables have heretofore duly and reasonably used in their time now by this Act 't is plain what the Jurisdiction is Contracts and Deeds of Arms and War out of the Realm are the subject matter of it and by Coke 't is called curia militaris or the Fountain of Marshal Law which shews it a Court that hath its boundaries a Court that may incroach nay which hath incroach'd in diverse instances belonging to the Common-Law And that 't is a Court that ought to meddle with nothing that may be Determined in Westminster-Hall then there must be some way of restraining this excess and these incroachments and if the Statute of Rich. II. had not been made it must be agreed that a Prohibition would have lain for else there had been no remedy which is absurd to affirm 'T is no Objection that Prohibitions are only grantable to Inferiour Courts and that this is one of the greatest Courts in the Realm for if a Court Marshal intermeddle with a Common-Law matter ea ratione it becomes inferior and may be controwled There needs no contest about the Superiority of Courts in this matter 't is the same here as among private Persons he that offends becomes inferior and subject to the Censure of his equal by offending though that Court should be reckoned so noble and great as hath been represented yet 't is only so while it keeps within its Jurisdiction Prohibitions are grantable to almost all sort of Courts which differ from the Common-Law in their proceeding to Courts Christian to the Admiralty nay to the Delegates and even to the Steward and Marshal upon the Statute of Articuli super Chartas Cap. 3. That they shall not hold Plea of Freehold or of Trespass Fits ' N.B. 241 242. is an express Writ of Prohibition though the Statute gave no such Writ but only did restrain the Jurisdiction of the Court which in truth is the Case in Question antecedent to the Statute pleaded No Argument can be raised from the subject matter of the Jurisdiction of this Court that 't is different from the Common-Law for so is the Admiralty and the Prerogative Courts nor is it any Objection that upon any Grievance in this Court the Appeal must be to the King for that holds in the other Courts with equal reason Nay Prohibitions lie from Westminster-Hall to hinder proceeding in Causes which the Courts that grant such Prohibitions cannot hold Plea of as to the Ecclesiastical Court which grants probate of a Will made within a Mannor to the Lord whereof such probate belongs 5 Rep. 73. to the Marches of Wales if hold Plea of what belongs to Court Christian 2 Roll's Abridg. 313. are several Cases to this purpose there were also Cited 1 Roll's Rep. 42. 2 Roll's Abridg. 317. Sid. 189. 1 Brownl 143 144. and Herne 543. 't was further urged that there neither was nor could be any reason assigned why a Prohibition should not be grantable to the Court of Chancery when by English Bill it meddles with the Common-Law in other manner than its Ancient and proper Jurisdiction doth allow and several Authorities were Cited to countenance that Assertion Then was considered the reason of Prohibitions in general that they were to preserve the right of the King's Crown and Courts and the ease and quiet of the Subject that 't was the Wisdom and Policy of the Law to suppose both best preserved when every thing runs in its right Channel according to the Original Jurisdiction of every Court that by the same reason one Court might be allowed to incroach another might which could produce nothing but confusion and disorder in the Administration of Justice that in all other Writs of Prohibition the suggestion is and with Truth in prejudicium corone Regis Gravamen partis and both these are declared to be the consequent of this Courts excess or incroachment of Jurisdiction even by their own Statutes and when the reason is the same the remedy ought to be so But it hath been pretended That the Statute appoints a Privy Seal for to supersede c. and therefore no Prohibition to this it was answered That this Act doth not take away the force of the 8 Rich. II. mentio ned in 4 Inst 125. which restrains the Constable and Marshal from medling with any Plea which concerns the Common Law and if it had a limitted Jurisdiction by the Common-Law or by that Statute the subsequent Statute which gave a further Remedy for to restrain them did not take away that which they had before and every Body must agree that where an Act of Parliament restrains a Jurisdiction such Act warrants a Prohibition in case that restraint be broken or exceeded 't is so in case of a limited Power at
the Common Law but much more so upon a Statute Besides the latter Statute which gives a Privy Seal doth not Repeal or alter the Law then in being 't is an Affirmative Law and that seldom or never works any change or alteration in what was before any otherwise then by Addition or Confirmation and in truth this is only a further remedy and is far from declaring a Prohibition not to lie the meaning might be to give a Privy Seal immediately even in vacation time the preamble complains so much of the Grievances that it cannot be supposed to Design any thing in favour of them or to prevent the restraint Suppose between the 8 and the 15 Rich. II. an excess of Jurisdiction had been usurped as in this Case will any Man say that a Prohibition would not then have lain and if it would can any Man say that the Statute pleaded doth take it away or Prohibit such Writ of Prohibition And the 11 Hen. IV. 24. ordains that all the Statutes concerning the Court of Constable and Marshal shall be duly observed and if so the 8 Rich. II. as well as the 15 Rich. II. are within that ordinance and if so a Prohibition lies as well as a Privy Seal and both are little enough to keep that Court within its due bounds and limits 2. It was argued That the proceeding upon these Articles was an intermedling with a subject matter properly determinable at Common-Law here 's no contract or deed of Arms no Mis-behaviour in War nothing of that nature which their own Statute says belongs to them Rushworth's II. Vol. 1054. he frequented the Court for four years together he observed no Cases there but for Words and one or two as Delaware's Case about abusing an Honourable Family by assuming to be a branch thereof here 's no such thing but express Articles for exercising of a lawful Trade 't is not causa armorum it doth neither concern Warlike matters nor Honour a Funeral Ceremony can never be within their Power this is a plain Accusation for a wrong to one of their Officers the Articles charge that Sir Henry S. George by his Office within his Province hath the ordering of these matters and the party hath medled therein without his License he says 't is lawful and the exercise of a lawful employment they say 't is otherwise because it belongs to another Man's Office then 't was admitted by the Council for the present to be so that Sir Henry was an Officer by Letters Patents under the Great Seal of England which by the way makes the Office and rights of it to be of Common-Law Conusance and the Patent is set forth at large in Prinne on 4 Inst 64 65. and that the King at Arms hath such a right yet if any Man intermeddles or incroaches upon that Office 't is not a breach of the rules of Honour and not relating to Arms but a plain injury at Common-Law and an Action lies for it as it doth for the disturbance of any other Office or Franchise In 4 Inst 126. 't is said that they do upon request Marshal Funerals but supposing they alone ought to do it then an Action lies This is merely a question whether the Letters Patents do carry such a sole priviledge suppose nul tiel record be Pleaded to them when Pleaded or Inrolled and without producing them suppose non concessit Pleaded to them when produced how shall these issues be tried Suppose they awarded a satisfaction to be made to Sir H. S. by the gift of a Summ of Money and he should afterwards bring an Action at Law for the same Cause will the proceeding in the Court of the Earl Marshal be a barr the Fact alledged in these Articles comes within none of those particulars supposed to be belonging to this Court in 1 Inst 391. It matters not whether these were publick Funerals as was questioned in Parker's Case Sid. 352. and in 2 Keble 316.322 but the Query here is if this be a point of Honour or whether it be not about the right of an Office and if it be the latter they have no Power to determine it The Heralds are Officers attendant upon that Court but it doth not follow that that Court can judge of the nature or extent validity or operation of their Letters Patents no more than the Court Christian can try the right or Freehold of a Chancellors or Registers Office The Earl Marshal cannot License the doing this in prejudice of the Heralds or acquit the party if does it for he still stands liable at Law the Herald hath a Freehold in it and may bring his Action notwithstanding Then 3. 'T was argued that admitting that no Prohibition did lie to the Court of Honour or that there was no cause for such Prohibition yet it ought to be granted to this pretended Court which is not within their Statute The true Court is before Constable and Marshal it is a Court by Prescription and cannot be altered but by Act of Parliament All our Books which describe the Court mention it to be before both 4 Inst 125. Crompt Jurisdiction 82. 1 Inst 74. Stamford 65. The Constable is the Chief and so are the Old Books and 37 Hen. 6.20 expresly before the Constable and Marshal The Statutes which mention the Court do all take notice of it as held before both the 8 Rich. 2. and that which they Plead do describe it so and the 1 Hen. 4. Cap. 14. the 13 Hen. 4.4.5 all Attainders are Pleaded to be before both Cambden who was an Herald in his Commentary de Etymologio antiquitate officio Comitis Mareschalli Angliae fol. 87. 't is published at the end of his Latin Epistles which are in 4to Printed for Chiswell 1691. he endeavours to advance the Office of Earl Marshal and searches for the Etymology and after all makes him but an Harbinger and tells us when the Title Mareschallus Angliae was first used and how it hath been enjoyed and by whom and of what Families and afterwards 91. lessens his Character much and derives the Office of Marshal of England from that of Marshal of the Houshold which he describes to disadvantage the same is likewise in Fleta lib. 2. cap. 5. But this is observable which Cambden says that the greatest increase of the Authority of this Office hath been since there were no Constables for the Kings since that time have referred many things to them which in former times were proper for the Constable neither had the Marshal any precedency in respect of his place until King Hen. 8. Anno 31. by Parliament Assigned him place next to the Lord Constable and before the Lord Admiral all which shews that the Earl Marshal never had that Authority time out of mind to hold this Court before himself alone as is pretended during the vacancy of the Office of Constable In November 1640. 't was Voted by the House of Commons upon a report from a Committee of some
Court. If such Bill be tendred and the Exceptions in it are truly stated then the Judges ought to set their Seal in testimony that such Exceptions were taken at the Trial But if the Bill contain Matters false or untruly stated or Matters wherein they were not over-ruled then they are not obliged to affix the Seal for that would be to command them to attest a falsity a Bill is not to draw the whole Matter into Examination again 't is only for a single point and the truth of it can never be doubted after the Bill is sealed for the adverse Party is concluded from averring the contrary or supplying an Omission in it This Bill was without Foundation the Plaintiff was not over-ruled in any one Point of Law 'T is true the Counsel desired the Opinion of the Court after all the Defendant's Evidence had been heard concerning their Record and the Judges did declare that they thought it did not extend to the Office in question but to the Clerk of the Crown who is the chief Clerk in Court and hath precedency and the Grant of that Office by the King both before and since that supposed Act proves that to be meant and not the Office in question which hath always been granted by the Chief Justice and this was afterwards left to the Jury Here was no cause for a Bill of Exceptions the Judges at the Counsels desire gave their Opinion upon the thing but did not over-rule them for that the Act being repealed could make no Point of Law but only be Evidence for the Jury to consider Besides this Act tho' repealed is inserted in the Bill as an Act in force And if an Act be set out and no repeal appears it must be understood to be in force and if the Bill had been sealed it must have been taken as in force and the Defendants could not here upon the Writ of Error have shewn the repeal which was in the 17 Edw. 3. and appeared so upon the Evidence from whence 't was inferred That this Bill was too artificial If any point of Law had arisen upon the whole Evidence and a particular point there was none the whole ought to have been inserted in the Bill or at least all that which concerned that Matter If this should be allowed 't would be in the power of any Counsel to destroy any Verdict as in case of a Title by Descent from Father to Son and a Will of the Father had been produced and proved at the Trial and a Bill had been sealed only shewing the Seisin and Descent the Son must prevail tho' he had no Title This is enough to shew that the Judges are not obliged nay are obliged not to Seal this Bill Then it was argued That the present Complaint is beneath the Honour and besides the Jurisdiction of the House of Peers that this was a Complaint of a Default in the Judges which cannot be tried in this place that MagnaCharta was made for them as well as for others that if they offend against any Rule of the Common Law or particular Statute whether in their Personal behaviour or as Judges they are triable only by their Peers that Peers are only such qui pari conditione lege vivunt that the Crown and Constitution of England had so far exalted their Lordships in their State and Condition that 't is beneath them to judge or try Commoners that all Powers and Priviledges in this Kingdom even the highest are circumscrib'd by the Law and have their limits That this is a Complaint of a great Crime in the Judges a Breach of their Oaths and with the insinuation of Partiality to one of themselves which if true incurs loss of their Offices and Forfeiture of their Estates by Fine and of their Liberty by Imprisonment and all this to the King besides Damages to the Party grieved and therefore it concerns them to have the benefit of the Law That this comes not regularly into the House 't is not any matter of Advice to the King nor of Priviledge nor of Contempt to this Court because the Matter complained of was before any Judgment below or any Jurisdiction could be attached here by pretence of the Writ of Error 'T is brought hither by way of Complaint for a supposed Miscarriage in Westminster-hall in a private Cause between Bridgman and Holt two Commoners It presumes the Lords to be proper Judges in the first Instance for the hearing and punishing of all Offences committed by the Judges and that in a Summary way upon a Petition and without that due Process of Law which is established under our Government Either this Refusal is punishable or not If not the Petition ought to be rejected If it be 't is either by the Common Law or by Act of Parliament but neither do warrant this Practise of Petitioning and the old Law is that which past Ages have approved and that by which Justice is to be administred and whatsoever is done by way of Judgment in a different manner than the Law allows is against that Law The proceeding in this manner is against the Consent of the Respondents for they have Pleaded to the Jurisdiction of this House as to this matter c. and therefore it differs from all Cases where the Parties concerned have Answered the Complaint and thereby submitted the same to an Examination and this will prevent the force of many presidents which may be Cited on this occasion Some Persons perhaps have from a confidence of Success or from a slavish Fear or private Policy forborn to Question the Power of their Superiors but the Judges must betray their Reputation and their Knowledge of the Laws if they should own a Jurisdiction which former times and their Predecessors were unacquainted with 'T is necessary to answer the pretence of a failure of Justice in case this method be Rejected and therefore it must be observed That our Law knows nothing of extraordinary means to redress a Mischief but that upon a defect of ordinary ones recourse is to be had to the Legislature and to that only either to explain and correct in reference to things past or to provide remedies for the future But here is a common easie means of relief if there had been occasion By the Statute of Westminster 2 cap. 31. In case the Judge refuses then a Writ to Command him which is to issue out of Chancery quod apponat sigillum suum and then a Writ to own or deny his Seal By 2 Inst 426. the party grieved by the denial may have a Writ upon the Statute Commanding the same to be done juxta formam Statuti Reg. 182. Fitch Natura brevium 21. and 11 Hen. 4.51 62 63. there 's the form of the Writ set out at large It recites a surmise of an Exception taken and over-ruled and it follows vobis precipimus quod si ita est tunc sigilla vestra apponatis Si ita 't is conditional if the Bill
had of Liberty of Speech not to make every thing a Cause of Action and to justifie this on the same side were quoted multitude of Cases too many to deserve a remembrance It was argued on the other side That these words toucht the Person in the most tender point viz. his Loyalty That it carried Scandal in it self not to be zealously affected to the Government which protects the whole that it was equivalent in Common Understanding to the calling him Traytor or Rebel That this was much more than affirming one not to be a good Man that disaffected implyed somewhat positive it 's meaning was that the Party hath an aversion a fixed settled Enmity to the Government that this was spoken of an Officer of great Trust that 't was a Reflection upon him with regard to his Office for Loyalty is as necessary as Justice in such a Post that to slander him in the one ought to be as actionable as to slander him in the other which is allowed it will because of the Reference to the Office in the nature of the words without any Special Damage that to deny these words to be actionable would tend to encourage Breaches of the Peace by provoking Challenges c. for that if Men cannot relieve themselves by Law they will be tempted to do it of themselves in other methods and that these words were a Reflection on the Government which employed Men thus disaffected and abundance of the Common Cases upon this Subject were quoted to shew what words would bear an Action in respect of Officers and Allegiance And then 't was argued strenuously that this was a Special Damage viz. to lose the Prince's Favour which every Man ought to covet and to lose a Place of Honour and Command both which the Jury have Found It was replyed on the behalf of the Plaintiff in the Writ of Error That as to the Reflection on the Government it might perhaps warrant an Information or Indictment but not an Action That as to Challenges there were vast variety of words which are reckoned provocative in the highest degree As the giving the Lie calling a Man a Coward and the like and yet will bear no Action And at last upon Debate the Judgment was Reversed John Duvall and Elizabeth his Wife Appellants Versus William Terrey of London Merchant Respondent THE Appeal was to be relieved against a Decree in Chancery The Case was That the Appellant Elizabeth had entred into a Bond of 140 l. Penalty conditioned for the payment of 72 l. on the Twentieth of April 1676. and by reason of several Promises and Delays of Payment and insisting upon Priviledge and other like Occasions it was not put in Suit till lately and then the Respondents were Arrested And upon a Declaration the Appellants pleaded Payment at the Day And after Issue joyned and notice of Trial upon some discovery of a Defect in the Evidence to prove the Bond Motion was made in the King's Bench to alter the Plea which denied a Bill was preferred in Chancery on suggestion that Elizabeth had never Executed it or that 't was obtained by Fraud and that there was no Consideration for the same and the Respondent preferred a Bill praying a Discovery if such Bond c. Upon Examination of Witnesses and after publication passed the Cause was heard and upon the hearing 't was ordered That the Appellants should not be relieved save against the Penalty of the Bond and that it be referred to one of the Masters to compute the Principal-money and Interest due thereon and to tax for the Respondent his Costs both at Law and in that Court and that what should be found due for the Principal Interest and Costs be paid by the Appellants at such Time and Place as the Master should appoint who computed the Principal and Interest at 154 l. and the Costs at 67 l. and to be paid the Twentieth of October following Upon the hearing of this Appeal there were two Queries made 1. Whether there being some difference in and about the proof of the Bond the Court ought to have made a Decree without directing a Trial at Law upon the validity of the Bond But 't was held That the Bond not being denied in pleading upon the Issue at Law the Chancery had done right and could not well have directed any other Issue than what the Parties themselves had joyned in at Law and tho' 't was pretended that the Attorney haâ— pleaded thus without direction the Court did not much regard that pretence because of the proper Remedy which the Law gives against such an Attorney if the pretence were true and therefore they did not much consider that Another Query was Whether the Court of Equity could justly award more than the Penalty and objected that the Order being to save against the Penalty no more ought to have been decreed But 't was said That notwithstanding that when the same was referred to a Master to tax Principal and Interest the Order bound the Party to pay both tho' it amounted to more than the Penalty and the meaning of the first part was only to relieve against the Penalty in case the Principal and Interest came to less than the Penal Sum especially the same coming to be heard upon cross Bills and as this Case was circumstanced after such delay and such pleading in the Court of King's Bench And as to Costs held no cause for an Appeal in this Case nor in truth was it ever known to be a Cause if the Merits were against the party Appellant And so the Decree was affirmed in the whole William Dolphin and Katharine his Wife Appellants Versus Francis Haynes Respondent APpeal to be relieved against a Decree in Chancery made by the Master of the Rolls Nov. 10. 1696. The Case was thus That one Paris Slaughter of London being Guardian to Katharine the Appellant during her Infancy he placed her with his Kinsman Chambers Slaughter near Worcester and sometimes boarded her in that place for her Education and the Respondent and the said P.S. being Correspondents Paris Slaughter ordered the Respondent to pay the said Chambers what Sums should be called for upon the account of Katharine In pursuance whereof several Sums were paid upon her account and the same were allowed again to the Respondent by P. S. The Appellant Katharine having just attained her Age she came to the Respondent and desired more Money as by the Order of P. S. and accordingly two several Sums were paid her and Receipts taken from her as by the Order of P. S. The Appellant Katharine did afterwards come to an account with P. S. which was fairly stated in Writing and they executed General Releases each to the other But the said two Sums not being entred in the Books of P. S. were not accounted for by the Appellant Katharine and the Respondent not having received any Allowance from P. S. in his Life time nor having as he thought any
the Name of his Kinsman Thomas Arnold the Sum of 40 s. all to be paid out of his Personal Estate and then proceeds in these words Being determined to settle for the future after the death of me and my Wife the Mannor of Furthoe with all the Lands Woods and Appurtetenances to charitable Vses I devise my Mannor of Furthoe with the Appurtenances unto Sir Lionel Jenkins Kt. William Dyer Matthew Johnson and Thomas Bedford and to their Heirs and Assigns for ever upon trust that they or their Assigns after the death of him and his Wife should pay and deliver yearly for ever several particular Sums to Charitable Vses therein mentioned All the Particulars amounting in the whole to 120 l. per Annum and charged nothing further on the said Mannor but the Expences of the Trustees in the Execution of the said Trust The said Arnold soon affter died the Wife is also since dead Sir Lionel Jenkyns and William Dyer also dead In Trinity 1692. the Attorney General prefers a Bill against the Appellant as Heir at Law to settle and establish the said Charities and to enforce the Trustees to act or to transfer their trust Estate To which they answer and the Heir by his Answer claimed as Heir at Law the Surplus of the Charity Estate over and above what would satisfie the yearly Payments expressed in the Will and the Charges of executing the said Trust upon a Reference to a Master to ascertain the Court of the yearly value of the Mannor he reports it worth 240 l. per Annum and worth the same at the time of making the Will And on hearing the Cause the Court declared That all the Profits of the Premisses ought by the purport and intention of the Will to be applied to the Charities therein mentioned and that the Appellant Arnold the Heir at Law is totally excluded from the Surplus with direction how the Surplus should go in augmentation of some of the Charities nevertheless in case the Appellant should Seal and Execute to the Trustees a Release and Conveyance of the Premisses according to the Decree then he to have his Costs out of the Sale of Timber and that the Trustees be indempnified And it was argued on behalf of the Appellant That this Decree was not equitable Some Questions were made about the distribution of the Surplus amongst only some of the Charities and about the value but a Surplus was agreed to be in the Case and 't was chiefly insisted upon that the Surplus ought to go and be to and for the use of the Heir at Law for that the Estate is not increased by any subsequent or accidental Improvement and so not like the Case of Thetford School but here at the time of making the said Will was and now is of a good value beyond the Sums given and was so known to be by the Testator and the particular Charities given by the Testator are particularly and expresly named and limited and do amount only to so much as is less than the value of the Land and thS urplus is not disposed of and consequently ought to be the Heirs For as at the Common Law in a Will what is not given away must descend whether you speak of Land or the interest in it so in Equity whatsoever Trust or part of a Trust is not declared and expressed the same shall be for the benefit of the Representative of the Testator either Heir or Executor as the Case may happen Then these Bequests or Devises being particular and express they do and will controul and expound nay restrain and qualifie the meaning of general precedent words That Expression of his being determined to settle his Mannor to charitable Uses will be qualified by the Particulars afterwards as is Nokes's Case in 4 Rep. and many others in the Books Besides 't is not accompanied with any term of Universality that excludes the Construction contended for and if it had been so largely expressed those general words of his designing to settle the whole may be intended only as a Security that the particular Charities may be certainly answered And by such Construction all the words of the Will may be satisfied and then the Trustees may convey the Premisses to the Heir at Law and take Security for the same saving and reserving all the said Charities devised with all reasonable Charges and Deductions without prejudice to the Will of the Testator or to the said Estate which must nevertheless be liable to answer and make good the same so that there can be no Damage done to any of the Parties or Interests concerned by this Construction nay it is the adding a further Security for their payment Now it is plain he designed the Sums given to the particular Uses and no more for that they are all so particular and express and it is pursuant to the Rules of Law and Equity in all doubtful Cases to adjudge in favour of the Heir at Law and not to extend the general words of a Will to enlarge a Charity beyond the intent expressed especially against a near Relation and Heir as this is viz. his Brother's Son Besides the Testator was bred a Civilian and as such knew how fully to express himself if he had intended the Overplus to go in increase of the Charity Or if he had intended them more then is mentioned he would have declared himself in such manner as should exclude all doubt On the other side it was argued That the Testator's intent plainly appeared by his Will to dispose all his Estate wholly to charitable Uses and that the words of the Will were sufficient to carry the whole Estate to that purpose and that it did not appear by his Will that 't was his intent to give his Heir at Law any thing out of his Real Estate that his determination to settle his Mannor with the Appurtenances was to settle the whole that what is not disposed of in Particulars is to be directed by the Court of Chancery that that Court hath done right in directing it in augmentation of the Charities mentioned because the Testator's intent was most in favour of those which are so mentioned That if the Query were askt What shall be done with the Surplus if any The Answer is natural viz. I am determined to settle the Mannor that is the whole on Charitable Uses That the Testator by his Will expressed some Care for his Sister and for John Boncher his Nephew and other his near Relations but neither by any Expression or Implication pointeth at any provision designed for his Heir at Law but for the Excluding him of all Pretences hath bequeathed him 40 s. and no more that the other is to contradict his plain Intent 't is to make a new Will for him contrary to the determination which he saith he had made And accordingly the Decree was affirmed Sir Richard Dutton Plaintiff Versus Richard Howell Richard Grey and Robert Chaplain Executors of Sir John
Witham deceased WRit of Error on a Judgment given in B. R. for Sir John Witham and Sir Richard Dutton and the Award of Execution thereof upon Scire Fac ' brought by the Defendants as Executors of Sir John Witham and affirmed in the Exchequer Chamber in Trespass and False Imprisonment The Case on the Record was thus The Plaintiff William did declare versus Dutton for that he with Sir Robert Davis Baronet Sir Timothy Thornhill Henry Walrond Thomas Walrond and Samuel Rayner did 14 Octob. 36 Car. 2. at L. in Par ' Ward ' c. assault beat and wound the Plaintiff and imprisoned him and his Goods then found did take and seize and the Plaintiff in Prison and the Goods and Chattels from the Plaintiff did detain and keep for three Months next following by which the Plaintiff lost the Profit he might have made of his Goods and was put to Charges c. Contra pac ' ad damp ' 13000 l. The Defendant pleads Not Guilty as to the Venir ' vi armis and all the Assault Imprisonment and Deteiner in Prison before the Sixth of November and after the Twentieth of December in the same Year and as to the beating and wounding and taking seizing and detaining his Goods and thereupon Issue is joyned and as to the assault taking and imprisoning the Plaintiff the Sixth of November and detaining him from thence until in and upon the Twentieth of December The Defendant doth justifie for that long before viz. the 28th of Octob. 32 Car. 2. by his Letters Patents shewn to the Court did constitute and appoint the Defendant his Captain General and Chief Governour in and upon the Islands of Barbadoes and c. and the rest of the Islands lying c. and thereby commanded him to do and execute all things that belonged to that Government and the Trust in him reposed according to the several powers and directions granted to the Defendant by the Letters Patents and Instructions with them given or by such other powers or instructions as at any time should be granted or appointed the Defendant under the King's Sign Manual and according to the reasonable Laws as then were or after should be made by the Defendant with advice and consent of the Councel and Assembly of the respective Islands appoints twelve Men by name viz. Sir P. L. H. D. H. W. S. N. T. W. J. Witham the Plaintiff J. P. J. S. R. H. E. S. T. W. and H. B. to be of the King's Counsel of the Island during the pleasure of the King to be assistant to the Defendant with their Counsel in the management of the Things and Concerns of the Government of the said Island in relation to the King's Service and good of his Subjects there and gives power to the Defendant after he himself had taken the Oath of Office to administer to every Member of the Councel and Deputy Governour the Oaths of Allegiance and Supremacy and the Oath of Office with further power to the Governour by advice and consent of Counsel to summon and hold a General Assembly of the Freeholders and Planters there and to make Laws Statutes and Ordinances for the good Government of the Island and to be as near and consonant as convenlently may to the Laws and Statutes of England which Laws were to be transmitted to be allowed by the King here with power also by advice and consent of Counsel to erect and establish such and so many Courts of Judicature as he shall think fit for hearing and determining all Causes as well Criminal as Civil according to Law and Equity and to appoint Judges Justices of Peace Sheriffs and other necessary Officers for administring of Justice and putting the Laws in execution provided Copies of such Establishments be transmitted to the King to be allowed and with further power to the Governour to constitute and appoint Deputy Governours in the respective Islands and Plantations which then were or should be under his Command to all and every which respective Governours the King by these Letters Patents gave power and authority to do and execute what should be commanded them by the Governour according to the power granted to him by this Commission And the Governor's Authority to continue during the good will and pleasure of the King The Defendant further pleads That after the making of the Letters Patents and before the time of the Assault and Imprisonment viz. 1 Mart. 33 Car. 2. he arrived at Barbadoes and by virtue of the Letters Patents aforementioned he took upon him and exercised the Government of that and the other Islands and continued to do so till the first of May 35 Car. 2. when he had license to return to England That he before his departure by virtue of the said Letters Patents by a certain Commission under his Hand and Seal did constitute the Plaintiff in his absence to be his Deputy Governour in the said Islands of Barbadoes to do and execute the Powers and Authorities granted to the Defendant by the said Letters Patents That the first of August following the Defendant arrived at London in England that the fourth of May 35 Car. 2. after the Defendants departure the Plaintiff took upon himself the Administration of the Government of the Island of Barbadoes that the Plaintiff not regarding the Trust reposed in him by the Defendant nor the Honour of that Supreme Place and Office did unlawfully and arbitrarily execute that Government and Office to the Oppression of the King's Subjects viz. apud Lond ' praed ' in Par ' Ward ' praed ' That after the Return of the Defendant to the Barbadoes viz. 6 Nov. 35 Car. 2. at a Councel holden for the Island of Barbadoes at St. Michael's Town before the Defendant H. W. J. P. E. S. T. W. F. B. which five are of the twelve named Councel in the Letters Patents and Sir Timothy Thornhill and Robert Dawes Counsel for the Island aforesaid the Plaintiff then and there was charged that he in the absence of the Defendant misbehaved himself in the Administration of the Government of the said Island Non tantum in not taking the usual Oath of Office and not observing the Act of Navigation And by his illegal assuming the Title of Lieutenant Governour and altering and changing Orders and Decrees made in Chancery of the said Island according to his own will and pleasure at his own Chamber and altering the Sense and Substance of them from what was ordered in Court by and with the consent of the Councel upon which it was then and there ordered in Councel by the Defendant and Councel that the Plaintiff Sir John Witham should be committed to c. until he should be discharged by due Course of Law by virtue of which Order the Plaintiff the said sixth of Nov. was taken and detained until the 20th of Dec. upon which day he was brought to the Court of the General Sessions of Oyer and Terminer and then by
and he may Expel and as it is 8 Assis ' 29 30. he may deprive the only Query is if he were Visitor at this time for it hath been and must be agreed on all hands that Quatenus Visitor he might deprive if he be a Visitor as Ordinary there lieth an Appeal from his deprivation but if as Patron there 's none and then that deprivation whether right or not must stand As to the Objection that 't is not the Sentence of a Court and therefore not Conclusive 't is not material whether it be a Court or not but the Query is if he had jurisdiction and conusance of the Person and thing and if he had then his sentence holds and where the Founder hath not thought fit to direct an Appeal no appeal lies nay not to the Common-Law Courts the Founder having put all under the Judgment of the Visitor it must continue so He might have ordered it that the Rector should continue only during the pleasure of the Visitor but now he hath left it to his wisdom according to the Statutes He is a Judge not only in particular by appointment but as he is Constituted a Visitor in general then in pleading of a Sentence of deprivation there is no necessity of shewing the cause the cause is not traversable even in a Visitation so is Rastal 1.11 Hen. 7.27 7 Rep. Kenne's Case 9 Edw. 4.24 Suppose this Rectory had been a sole Corporation and not part of a Corporation aggregate as it is Consisting of Rector and Scholars and Dr. Bury had brought an assize and this deprivation had been pleaded it had been good to have said that the Visitor certis de Causis ipsum adinde moventibus had deprived him every thing that is traversable must be expressed with certainty but the cause need not be so in this Case Now 't is strange that pleading a Sentence without a Cause should be good and the finding of a Sentence in like manner in a special verdict should not be good If in Pleading it be not traversable 't is the strongest Argument that the Cause is not to be inquired into the having no Appeal doth not lessen the validity of the Sentence it doth only shew the Rector's place not to be so certain and durable as in other cases they are where Appeals are allowed The Case of Caudrys in the High Commission Court is as strong a Sentence of deprivation no Appeals and the Sentence found and no cause shewn yet held good 't is no Answer to say that that was by the Ecclesiastical Law how is it the Ecclesiastical Law that a Man shall be concluded by one Sentence without Appeal no it was because 't was by a Court that had Jur ' and the Sentence was not the weaker or the cause of it more inquirable because there 's no Appeal 'T was by the Ecclesiastical Constitution that the Commissioners had that Power but that was established by the Law of the Land and so is the Visitatorial Power the one Authority is as much derived from the Law as the other Bird and Smith's Case in Moore 's Rep. deprivation for not conforming to the Canons held good in like manner As to the Case of Coueney in Dyer 209. and that in Bagges's Case 11 Rep. 99. they are the same as to this matter though in Two Books an assize because no Appeal he quotes Books for it but upon a perusal they will not warrant the distinction for the party is as much concluded in the one Case as in the other 't is reasonable to suspect that Case not to be Law because that is impracticable which it is brought to prove The Head of a College cannot maintain an Assize for his Office of Headship He hath not such an Estate as will maintain that writ therefore to give that instance against us is hard the Rector hath no such sole Sezin the whole body of the College have an interest therein He hath no Title to the Money in his own Right till by consent they are distributed and after such distribution 't is not the Rector's Money but Dr. Bury's He is the only visible head of the Body in deed but has no single right In Appleford's Case the like Argument was drawn from this Case for a Mandamus and insisted that he might have an assize but said by the Lord Hales that that was impossible and in truth there 's no difference between this Case and that of a Mandamus there was a return that he was removed pro crimine enormi and Appealed to the Bishop of Winton who confirmed the amotion and the particular cause was not at all returned and held good because there was a local Visitor who had given a Sentence and all parties were concluded by it the same being done by the Power of that Government which the Founder had thought sit to put them under Now 't was argued from hence That this was an express Case If the Cause of the Deprivation be examinable in the Courts of Common Law why not upon a Mandamus as well as in an Ejectment The Lord Hales in that Case of Appleford took it for clear Law That the Sentence was as binding as a Judgment in an Assize He is made a Judge and his Person particularly designed by the Founder but he hath his Authority from the Law and since the Founder hath trusted the Matter to his Discretion 't is not to be suspected that he hath done or will do otherwise than right Then in the next place 't was argued That there doth not appear any Injustice in the Sentence and consequently it ought to be presumed Just Credence is to be given to a Person that exerciseth Judicial Power if he keep within his Jurisdiction The Law hath respect not only to Courts of Record and Judicial Proceedings in them but even to all other Proceedings where the Person that gives his Judgment or Sentence hath a Judicial Authority and here 's no Fault found in the Sentence the Jury have not so much as found the Matter and Ground of it to be untrue in Fact or insufficient in Law Then 't was urg'd That the Cause of Deprivation here was just it being for Contumacy If the Bishop had power to visit in June as he had and was hindred by their shutting the Doors whereupon he went away without doing any thing and came again in July when he held his Visitation and they behaved themselves Contumaciously and refused to submit to his Authority this was contra officii sui debitum 't is reasonable that both Head and Members should submit to the Visitor Contumacy is a good Cause of Deprivation and upon good reason because it hinders an Inquiry into all other Causes 'T was held so in Bird and Smith's Case and in Allen and Nash's Case quia fuit refractarius Now tho' Contumacy be not one of the Causes mentioned in the Statutes yet 't was certainly contrary to their Duty turning their Backs upon the
Visitor not appearing upon Summons refusing to be examined was an Offence and contrary to what the Statutes require He is to inspect the state of the Colledge and each Member's particular behaviour and now when the Visitor comes to make such an Inquisition and the Head or the Members withdraw themselves and will not appear to be examined if this be not a good Cause of Deprivation nothing can be for that nothing else can ever be inquired into As for that Statute which refers to the Causes for which a Rector may be deprived it doth not relate to a Deprivation in a Visitation but shews the manner how the Colledge is to proceed if he be guilty of such Offences they may complain at any time to the Visitor if he wasts the Revenues or behave himself scandalously and upon request will not resign and they may Article against him out of a Visitation but when he comes to execute his Power in his quinquennial Visitation he is not confined to proceed only upon the Information of the Fellows but is to inquire into all the Affairs of the Colledge and may proceed to deprivation as he sees Cause Now Contumacy is a causa of a Forfeiture of his Office which is subject to the power of the Visitor by the original Rules of the Foundation and to evade or contumaciously to refuse or deny a Submission to that Power is an Offence against the Duty of his Place and consequently a just Cause of Deprivation so that upon the whole Matter 't was inferred and urged that the Bishop hath a Visitatorial Power vested in him to deprive the Rector without consent of the four Senior Fellows And 2. that the Justice of the Sentence is not examinable in Westminster-hall And 3. that if it were and the Cause necessary to be shewn here was a good one an affronting the very Power of Visiting and fetting up for Independency contrary to the Will of the Founder and therefore it was prayed that the Judgment should be reversed On the other side 't was argued by the Counsel with the Judgment That this Sentence was void that 't was a meer Nullity that this proceeding had no Authority to warrant it and that it being done without Authority 't is as if done by a meer Stranger and whether it be such an Act or not is examinable at Law for that the Power of a Visitor must be considered as a meer Authority or a Trust and it is one or rather both and then either way 't is examinable for every Authority or Trust hath or ought to have some Foundation to warrant it and if that Foundation which warrants it hath limited any Rules or Directions by which it is to be executed then those Directions ought to be pursued and if they are not 't is no Execution of the Authority given or Trust reposed and if not 't is a void Act a meer Nullity and consequently 't is that of which every Man may take notice and advantage Then 't was said That it must be agreed that of a void thing all Persons may take advantage and contest it in a Collateral Action and that altho' it have the form and semblance of a Judicial Proceeding and for this was cited the Case of the Marshalsea's 10 Rep. 76. as a full Authority the Resolution was That when a Court hath no Jurisdiction of a Cause there all the proceeding is coram non judice and Actions lye against any Person pretending to do an Act by colour of such Precept or Process without any regard to its being a Precept or Process and therefore the Rule qui jussu judicis aliquid fecerit non videtur dolo malo fecisse quia parere necesse est will not hold where there is no judex for 't is not of necessity to obey him who is not Judge of the Cause and therefore the Rule on the other side is true judicium a non suo judice datum nullius est momenti and so was it held in the Case of Bowser and Collins 22 Edw. 4.33 per Pigot and 19 Edw. 4.8 And therefore if the Court of Common Bench held Plea of an Appeal of Felony 't is all void but it must be owned that the meer erroneous procedure of a Court which hath a General Jurisdiction of the Subject Matter is not examinable in a Collateral Action whether upon true Grounds or not and yet if it be a limited Jurisdiction and those limits are not observed even that is coram non judice and holds with respect to Courts held by Authority of Law which are much stronger then the Cases of Power created or given by a private Person A Sheriff is bound by Law to hold his turn within a Month after Michaelmas and he holds it after the Month and takes a Presentment at that time if that be removed into the King's Bench the Party shall not answer it but be discharged because the Presentment was void coram non judice for that the Sheriff at that time had no Authority and yet in that Case his Authority and Jurisdiction extended to the Person and Thing The same Law for a Leet unless Custom warrants the contrary and then that Custom must be pursued The Commissioners of Sewers have a limited Authority and if the number of Persons or other Requisites mentioned in their Commission be not pursued what they do which exceeds it is void and yet they have a kind of Legislative Authority so is it in Sir Henry Mildmay's Case 2 Cro. 336. and there they had an Authority both of Thing and Person but did not observe the Rules prescribed in the Gift of that Authority according to the 23 Hen. 8. cap. 5. and no reason could or can be given for that Resolution but that it was a particular limited Authority And then to apply this to the present Case the Sentence in question can no more aggrieve the Defendant then an Order pronounced or made by a non Judex if it be not agreeable to the Power given by the Statutes and this appears further from Davis's Rep. 46. where the same Distinction is allowed Nay in some Cases the Award of a wrong Process is void as if by a Steward of a Mannor Court that a Capias should issue where the same doth not lye but only an Attachment Turville and Tipper's Case Latch 223. A Court of Pypowders hath Jurisdiction of an Action of the Case yet if it holds Plea of Case for Slander 't is all void tho' the words were spoken within the Boundaries of the Fair because the Jurisdiction is limited so that if the Thing the Time the Person or the Process be not regarded according to the Authority given 't is all void and an Advantage may be taken of it by any Body where the Plaintiff Claims or makes his Demand by colour of such Act. 'T was further argued That the Reason given in that Case of Latch is because the Custom which gave him his Authority gave him
command them in Ireland to do Execution there St. John vers Cummin Yelv. 118 119. 4 Inst 72. If Writ be abated in C. B. and Error brought in B. R. and the Judgment be reversed shall proceed in B. R. and 1 Rolls 774. to the same effect Green vers Cole 2 Saund. 256. The Judges Commissioners gave the new Judgment 'T is true in Dyer 343. the opinion was that he was only restored to his Action and then Writs of Error were not so frequent The Judgment may be erroneous for the Defendant and yet no reason to give a Judgment for the Plaintiff as in Slocomb's Case 1 Cro. 442. the Court gave a new Judgment for the Defendant therefore it properly belongs to the Court which doth examine the Error to give the new Judgment the Record is removed as Fitzh Nat. Brev. 18 19. on false Judgment in ancient Demesne v. 38 Hen. 6.30 and Griffin's Case in Error on a quod ei deforceat in 2 Saunders 29 30. new Judgment given here In the Case of Robinson and Wolley in 3 Keeble 821. Ejectment Special Verdict Judgment reversed in the Exchequer Chamber and they could never get Judgment here the Court of Exchequer Chamber not having given it and in the principal Case after several Motions in the Court of King's Bench the Remittitur not being entred there a Motion was made in Parliament upon this Matter and a new Judgment was added to the Reversal that the Plaintiff should recover c. Dr. William Oldis Plaintiff Versus Charles Donmille Defendant WRit of Error to Reverse a Judgment in the Court of Exchequer affirmed upon a Writ of Error before the Lord Chancellor c. The Case upon the Record was thus Donmille declares in the Exchequer in placito transgr ' contempt ' c. for a Prosecution contra regiam prohibit ' and sets forth Magna Charta that nullus liber homo c. that the Plaintiff is a Freeman of this Kingdom and ought to enjoy the free Customs thereof c. that the Defendant not being ignorant of the Premisses but designing to vex and aggrieve the Plaintiff did in Curia militari Henrici Ducis Norfolk ' coram ipso Henrico Com' Mareschal ' Exhibit certain Articles against the Plaintiff c. that Sir Henry St. George Clarencieux King at Arms was and is King at Arms for the Southern Eastern and Western Parts of the Kingdom viz. from the River of Trent versus Austrum and that the Conusance Correction and Disposition of Arms and Coats of Arms and ordering of Funeral Pomps time out of mind did belong to him within that Province and that the Plaintiff having notice thereof did without any Licence in that behalf had and obtained paint and cause to be painted Arms and Escutcheons and caused them to be fixed to Herses that he provided and lent Velvet Palls for Funerals that he painted divers Arms for one Berkstead who had no right to their use at the Funeral and did lend a Pall for that Funeral and paint Arms for Elizabeth Godfrey and marshalled the Funeral and the like for Sprignall and that he had publickly hanging out at his Balcony Escutcheons painted and Coaches and Herses and other Publick Processions of Funerals to entice People to come to his House and Shop for Arms c. That the Defendant compelled the Plaintiff to appear and answer the Premisses c. The Defendant in propria persona sua venit dicit That the Court of the Constable and Marshal of England is an ancient Court time out of mind and accustomed to be held before the Constable of England and the Earl Marshal of England for the time being or before the Constable only when the Office of Earl Marshal is vacant or before the Earl Marshal only when the Office of Constable is vacant which Court hath time out of mind had Conusance of all Pleas and Causes concerning Arms Escutcheons Genealogies and Funerals within this Realm and that no other Person hath ever intermeddled in those Pleas or Affairs nor had or claimed Jurisdiction thereof and that the Suit complained of by the Plaintiff was prosecuted in the said ancient Court of and for Causes concerning Arms Escutcheons and Funerals That by the 13 Rich. 2. 't was enacted that if any Person should complain of any Plea begun before the Constable and Marshal which might be tried by the Common Law he should have a Privy Seal without difficulty to be directed to the Constable and Marshal to Supersede that Plea till discussed by the King's Counsel if it belongs to that Court or to the Common Law prout per Statut ' ill ' apparet and that the said Court time out of mind hath been tant ' honoris celsitudinis that it was never prohibited from holding any Pleas in the same Court aliter vel alio modo quam juxta formam Statut ' praed ' Et hoc parat ' est verificare unde non intendit quod Curia hic placitum praed ' ulterius cognoscere velit aut debeat c. The Plaintiff demurs and the Defendant joyns From the Exchequer Court this was adjourned propter difficultatem into the Exchequer Chamber and afterwards by advice of the Judges there the Court gave Judgment for the Plaintiff which was affirmed by the Chancellor and Treasurer c. And now it was argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was erroneous and fit to be reversed And first to maintain the Court as set forth 't was insisted on 1. That when there was a Constable and Marshal the Marshal had equal Power of Judicature with the Constable as each Judge hath in other Courts 2. That the Constable had in that Court power of Judicature alone when there was no Marshal And 3. That the Marshal had the like when there was no Constable That they had both equal power of Judicature appeared by all their Proceedings by their Libels or Bills in the Case of John Keightley Esq against Stephen Scroop The Libel is In the Name of God Amen Before you my Lords the Constable and Marshal of England in your Court of Chivalry and prays that the said Stephen by their Sentence definitive may be punisht 1 pars Pat. 2 Hen. 4. m. 7. And the same Stephen libelled against Keightley to the thrice Honourable Lords the Constable and Marshal of England So the Libels were directed to both and both sate judicially The same appears by the Sentence or Judgment given in that Court Bulmer libelled against Bertram Vsau coram Constabulario Mareschallo qui duellum inter partes allocaverunt assignaverunt locum tempus Rot. Vascor ' 9 H. 4. m. 14. It doth likewise appear to be so by the Appeals from their Judgments to the King they are both sent to to return the Rolls of their Judgments Rot. Claus 20 Edw. 1. m. 4. In the Appeal brought by Sir Robert Grovesnor against Richard Scroop 't is upon
the Sentence given by the Constable and Marshal in the Suit before them concerning a Coat of Arms Rot. Claus 12 Rich. 2. m. 4. Appeal by Bond vers Singleton 't is in a Cause of Arms in our Court before our Constable and Marshal wherein Sentence was given by them 1 pars Pat. 17 Rich. 2. m. 12. Thus it appears by a Commission for the Execution of the Office of Constable of England Committimus vobis officium hujusmodi Constabularii ad querelam Thome Moor in hac parte una cum Edmundo de Mortimore Mareschallo Anglie audiendum secunda pars Patent ' 48 Edw. 3. m. 20. in dorso As also by a Claim at the Coronation of H. 5. before Beauchamp Earl of Warwick then Lord Steward John Mowbray Earl Marshal Son to the then Duke of Norfolk claimed under a Grant in 20th of Rich. 2. of the Office of Earl Marshal of England to hold Court with the Constable and to hold Pleas before them and Copies of these Precedents were said to have been ready in Court Further to prove the joynt Authority were cited several of our Old Books 48 Edw. 3. fol. 3. in a Case of Debt upon an Indenture by which P. was retained by the Defendant with two Squires of Arms for the War in France Belknapp said of such Matter this Court cannot have conusance but 't is triable before the Constable and Marshal In the Case of Pountney and Bourney 13 Hen. 4.4 the Court of King's Bench call it the Court of the Constable and Marshal And in 37 Hen. 6.3 upon another occasion Prisot said this Matter belongs to the Constable and Marshal And Coke 4 Inst 123. says that they are both Judges of the Court and that the Constable sometimes gave Sentence is no Argument that the Marshal was no Judge with him it only proves him the Chief who in most Courts doth usually give the Rule Nor is the Earl Marshal's receiving Writs from the Constable to execute his Commands any Argument that he sits there only as a Ministerial Officer and not as a Judge for he may be both as in many Corporations Mayors are Judges of the Court and yet have the Custody of their Goals too and so have the Sheriffs of London their Compters tho' they strictly are Judges of their several Courts 2. During the Vacancy of the Earl Marshal's Office the Constable alone had the Judicature as in 11 Hen. 7. on Holy-rood-day the Earl of Darby being then Constable of England sate and gave Judgment alone in a Cause between Sir Thomas Ashton and Sir Piers Leigh upon a Coat of Arms but this needs no Proof since 't is contended on the other side that the Court doth belong only to the Constable 3. 'T was argued that the Earl Marshal hath set alone and given Judgment and to prove that it was said this Court was held when there was no Constable before Thomas Howard Duke of Norfolk Lord High Treasurer and Earl Marshal of England who Died 16 Hen. VIII and next after him before Charles Brandon Duke of Suffolk then Earl Marshal who Died 37 Hen. VIII after him the Court was held and Sentences given by Thomas Howard Duke of Norfolk who Died in 1512. and after him in the 30 Eliz. the Earl of Essex sat as Earl Marshal and heard and determined Causes judicially and the chief Judge sat then as Assistant with him in Court and then after the Death of the Earl of Essex it was in Commission to my Lord Treasurer Burleigh and others and then the great Oase of Sir F. Mitchell was heard and determined at which several Judges assisted and the Sentence of degradation was executed upon him 26. April 1621. and then was Cited the Case of Pool and Redhead 12 Jac. 1.1 Roll's Rep. 87. where 't was held that the proper remedy for Fees of Knighthood was to sue to the Earl Marshal and Coke says in the same Case the Common-Law does not give remedy for precedency but it belongs to the Earl Marshal And since that in Parker's Case which was 20 Car. II. Syd 353. the Earl Marshal was agreed to have the absolute determination of matters of Honour in the Court of Chivalry as much as the Chancellor hath in matters of Equity And the Error on the other side was occasioned by not distinguishing between the Ancient Jurisdiction of this great Court at the Common-Law and the Jurisdiction given to the Constable and Marshal under those names by Statute for the latter cannot be executed by one alone and that distinction answers the Authority in 1 Inst 74. which grounded the mistake that there is no Court of Chivalry because there 's no Constable whereas the reason why in Sir Francis Drake's Case the not constituting of a Constable silenced the Appeal was from the 1 Hen. IV. Cap. 14. which orders all Appeals of Murder committed beyond Sea to be before the Constable and Marshal by name But the Ancient Jurisdiction of this Court by prescription wherein both the Constable and Marshal were Judges severally or together and which each of them did and could hold alone remains still as much in the Earl Marshal alone as it ever was in him and the Constable Then it was argued that no Prohibition lay to this Court because none had ever been granted and yet greater occasions then now can be pretended by reason of the large Jurisdiction which this Court did in Ancient time exercise many Petitions were frequently preferred in Parliament Complaining of the Incroachments of this Court in Edw. I. Edw. III. Rich. II. Hen. IV. and Hen. VIth's time as appears in 4 Inst. 125. 2 Hen. IV. num 79. and 99. 1 Roll's Abridg. 527. and yet no Prohibition granted or moved for which according to Littleton's Text is a very strong Argument that it doth not lie The Statute of 13 Rich. II. 2. is an Argument against it because after several Complaints of the Incroachments of this Court another remedy is given which had been needless if this had been legal nay it shews the Opinion of the Parliament that there was no other way of relief and soon after the making of this Statute in the same Reign two Privy Seals were sued upon it in the Case of Poultney and Bourney 13 Hen. IV. 4. 5. Besides this might be grounded on the Antiquity and greatness of this Court for as to the subject matter of it 't is by Prescription a Court for determining matters of Honour to preserve the distinction of degrees and quality of which no other Courts have Jurisdiction and the right and property in Honours and Arms is as necessary to be preserved in a Civil Government as that in Lands or Goods Then 't was urged that this Court hath Jurisdiction even of Capital Offences its extent is large 't is throughout the Realm even in Counties Palatine even beyond the Seas its manner of proceeding is different in a Summary way by Petition its trial of Fact may be by Duel as is 4
of the greatest Members of the House Selden Hollis Maynard Palmer Hide c. that the Earl Marshal can make no Court without the Constable and that the Earl Marshal's Court is a grievance Rushworth 2 Vol. 1056. Nalson's 1 Vol. 778. Spelman in his Glossary verbo Mareschallus seems to say 't was officium primo Servile and that he was a meer Servant to the Constable and gives much such another account of it as Cambden doth and pag. 403. is an Abstract or rather Transcript of all that is in the Red Book in the Exchequer about the nature of this Office and there 't is said that if the King be in War then the Constable and Marshal shall hold Pleas and the Marshal shall have the Amerciaments and Forefeitures of all those who do break the Commandments of the Constable and Marshal and then it was further alledged by the Councel for the Defendant in the Writ of Error that they knew of no Statute Record or Ancient Book of Law or History that ever mentioned the Earl Marshal alone as having Power to hold a Court by himself So that taking it as a Court held before an incompetent Judge a Prohibition ought to go and the Party ought not to be put to his Action after he has undergone imprisonment and paid his Fine since it hath the semblance of a Court and pretends to act as such and if it be a Court before the Earl Marshal alone in case it exceeds the Jurisdiction proper to it a Prohibition lies either by force of the Common-Law which states the boundaries and limits of that Jurisdiction or by force of the Statute of 8 Rich. 2. which is not repealed by the subsequent Law in that Reign and if such Prohibition do lie in any Case that here was cause for it the subject matter of the Articles being only a wrong if any to a private Officer who had his proper remedy at the Common-Law and therefore it was prayed that the Judgment should be affirmed and it was affirmed Smith Vx ' Versus Dean and Chapter of Paul 's London and Lewis Rugle APpeal from a Decree of Dismission made by the Lord Jeffreys the Bill was to compel the Dean and Chapter as Lord of the Mannor to receive a Petition in nature of a Writ of false Judgment for Reversing a common recovery suffered in the Mannor Court in 1652. whereby a Remainder in Tail under which the Plaintiff claimed was barred suggesting several Errors in the proceeding therein And that the said Lord might be commanded to examine the same and do Right thereupon To this Bill the Defendant Rugle demurred and the Dean and Chapter by Answer insisted That 't was the first Attempt of this kind and of dangerous consequence and therefore conceived it not fit to proceed on the said Petition unless compelled thereto by course of Law That Rugle being the Person concerned in interest to contest the sufficiency of the Common-recovery they hoped the Court would hear his defence and determine therein before any Judgment were given against them and that they were only Lords of the Mannor and ready to Obey c. and prayed that their rights might be preserved This demurrer was heard and ordered to stand And now it was insisted on by the Council with the Appellant that this was the only Remedy which they had that no Writ of Error or false Judgment lies for Reversing of a recovery or Judgment obtained in a Copyhold Court that the only method was a Bill or Petition to the Lord in nature of a Writ of false Judgment which of common right he ought to receive and to cause Errors and defects in such recovery or Judgment to be examined and for this were Cited Moore 68. Owen 63. Fits N. B. 12. 1 Inst 60. 4 Rep. 30. is such a Record mentioned to have been seen by Fenner where the Lord upon Petition to him had for certain Errors in the proceedings Reversed such Judgment given in his own Court 1 Roll's Abridg. 600. Kitchin 80. 1 Roll's Abridg. 539. Lanc. 98. Edward's Case Hill 8. Jac. 1. by all which it appears that this is an allowed and the only remedy Then it was argued That in all Cases where any Party having a Right to any Freehold Estate is barred by Judgment Recovery or Fine such Party of common Right may have a Writ of Error if the same be in a Court of Record and a Writ of false Judgment if in a Court Baron or County Court and reverse such Judgment Recovery or Fine for Error or Defect and there can be no reason assigned why a Copyholder especially considering the great quantity of Land of that Tenure in England should be without remedy when a false Judgment is given and the rather for that in Real Actions as this was the Proceedings in the Lord's Courts are according to those in Westminster-hall and now tho' a Common Recovery be a Common Assurance yet it was never pretended that a Writ of Error to Reverse it was refused upon that pretence and if the Lord of a Mannor deny to do his Duty the Chancery hath such a Superiour Jurisdiction as to enjoyn him thereto 'T is the Business of Equity to see that Right be done to all Suitors in Copyhold Courts Fitsh Abridg. Subpena 21. 2 Cro. 368. 2 Bulstr. 336. 1 Rolls Abridg. 373. If an Erroneous Judgment be given in such Court of a common Person 's in an Action in the Nature of a Formedon a Bill may be in Chancery in nature of a false Judgment to Reverse it and Lanc. 38. Tanfield says that he was of Counsel in the Case of Patteshall and that it was so decreed which is much more then what is here contended for and tho' Common Recoveries are favoured and have been supported by several Acts of Parliament yet no Parliament ever thought fit to deprive the Parties bound by such Recoveries of the benefit of a Writ of Error On the other side 't was urged in defence of the Dismission That the Person who suffered this Recovery had a power over the Estate that she might both by Law and Conscience upon a Recovery dispose of it as she should think fit that she hath suffered a Recovery and that it was suffered according to the custom of the Mannor tho' not according to the form of those suffered in Westminster-hall That the suffering of Recoveries in any Court and the Methods of proceeding in them are rather notional then real things and in the Common Law Courts they are taken notice of not as Adversary Suits but as Common Assurances so that even there few Mistakes are deemed so great but what are remedied by the Statute of Jeofailes or will be amended by the Assistance of the Court And if it be so in the Courts at Westminster where the Proceedings are more solemn and the Judges are Persons of Learning and Sagacity how much rather ought this to stand which was suffered in 1652. during the Times of
good for them and that they had the like Power of Appeals Writs of Error and Impeachments c. and that the Cognizance of such Appeals in England would produce great inconveniencies by making poor people to attend here whereas they might with less trouble and expence have Justice at home that this did agree with the reasons of that Ancient Statute 4 Inst 356. that persons having Estates in Ireland should Reside in that Kingdom else half of their Estates should go to maintain the Forts there That this practice of receiving Appeals here would be vexatious to the people of that place and that no Court could have Jurisdiction but by grant or prescription and that there could be no pretence for either in this place Then was it ordered in these or the like Words Whereas a Petition and Appeal was offered to the House the Day of last from the Society of the Governour and Assistants London of the New Plantation in Ulster in the Kingdom of Ireland against a Judgment given by the Lords Spiritual and Temporal of Ireland in Parliament there Assembled on the day of last upon the Petition and Appeal of William Lord Bishop of Derry against the Decree or Orders made in the said Cause in the Court of Chancery there Whereupon a Committee was appointed to consider of the proper method of Appealing from Decrees made in the Court of Chancery in Ireland and that pursuant to the Orders of the said Committee and a Letter sent to the Lords Justices of Ireland by Order of this House several precedents have been transmitted to this House by the said Lord Justices Copies whereof were ordered to be delivered to either side After hearing Counsel upon the Petition of the said Society of London presented to this House praying that they might be heard as to the Jurisdiction of the House of Lords in Ireland in receiving and judging Appeals from the Chancery there as also Counsel for the Bishop of Derry after due Consideration of the Precedents and of what was offered by Counsel thereupon It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament Assembled That the said Appeal of the Bishop of Derry to the House of Lords in Ireland from the Decree or Orders of the Court of Chancery there made in the Cause wherein the said Bishop of Derry was Plaintiff and the said Society of the Governour and Assistants London of the New Plantation in Ulster in Ireland were Defendants was coram non judice and that all the proceedings thereupon are null and void and that the Court of Chancery in Ireland ought to proceed in the said Cause as if no such Appeal had been made to the House of Lords there and if either of the said Parties do find themselves Agrieved by the said Decree or Orders of the Chancery of Ireland they are at liberty to pursue their proper Remedy by way of Appeal to this House Sir Caesar Wood alias Cranmer versus Duke of Southampton APpeal from a Decree in Chancery the Case was thus Sir Henry Wood the Appellant's Unkle makes a Settlement in Consideration of a Marriage to be had between his Daughter Mary and the Duke c. to the uses following i.e. in Trust to Receive and Pay out of the Profits 450 l. a Year to the Lady Chester for the Education and Maintenance of his Daughter till twelve years of Age then 550 l. a year till Marriage or Seventeen years of Age which should first happen and in Trust to pay the Residue of the Profits to the Duke after Marriage he first giving Security to the said Trustees to provide Portions and Maintenance for the Daughters of the Marriage equal to the Sum he should receive and in case there should be none then the same Money to remain to the Respondent and if the said Mary should die before Marriage or Age of Seventeen years to such Uses as Sir H. W. should appoint And if Mary after Sir Henry's death die under Sixteen the Respondent then unmarried to any other Woman or after and before Seventeen the Respondent then living and unmarried or if before Seventeen she should marry any other or if she should refuse the Respondent then 20000 l. out of the Profits to the Duke But if the said Marriage shall take effect after Mary's Age of Sixteen years and she shall have Issue Male by the Respondent then for the better Settlement of the Premisses upon the Issue Male and a more ample Provision and Maintenance for the Respondent and his Wife and the longest Liver of them in Trust for the said Duke and Mary for and during their Lives and the Life of the longer liver of them and after their Deaths to the first Son c. in Tail Male and for default of Issue Male to the Daughters And for default of such Issue in Trust for such Persons only as Sir Henry should appoint and in default thereof to the right Heirs of Sir Henry Sir Henry W. at the same time makes his Will tho' dated after the Settlement reciting that he had settled the Premisses upon the Duke and Mary for their Lives and the Life of the Longer liver of them c. and confirms it and in Case the said Martiage should not take effect according to the Limitations of the Settlement or if the said Respondent should die without Issue by Mary or if he have Issue by her and that Issue die without Issue then the Remainder to Mary for Life and afterwards to her first Son and after several mediate Remainders then to the Appellant for Life c. and after to Thomas Webb c. Sir Henry Wood dies the Marriage between Mary and the Duke afterwards takes effect upon her arrival to years of Consent and they lived in that state till she was near Seventeen years of Age and then she dies without Issue The Court of Chancery decreed the Profits of the Estate to the Duke for Life It was argued for the Appellant That here was a precedent Copulative Condition that if the Marriage take effect after Sixteen and there be Issue then to the Duke and neither of these being in the Case the Decree is not consistent with the positive words of the Settlement for that the Duke was to have it upon no other terms That by this Settlement the Duke was thus provided for 1. If the Marriage did not take effect by Mary's refusal or taking another Husband the Duke was to have 20000 l. 2. If the Marriage did take effect and Issue was had then the Duke was to have an Estate for Life but not otherwise that the words are plain and certain that there must not only be a Marriage but Issue Male between them that tho' it should be agreed to be a good Marriage within the intention of the Settlement she living till after Sixteen years of Age yet when a Condition Copulative consisting of several Branches as this doth is made precedent to any Use or
Ordinary thought him able to take Orders and Preach in his Diocess therefore another must deem him able and sufficiently Learned tho' he knows the contrary to accept a Benefice in his Diocess 't is Absurd that upon a Presentation he is to be Examined but not refused tho' found inhabilis and this because he was in Orders and he could not be Presented unless in Orders and yet tho' in Orders if he be Presented he must be Examined but to what purpose passeth all understanding if his Priesthood or Orders presumes him to be qualified 'T is likewise to suppose Learning and Ability to be an inseparable quality That an ordinary Scholar can never become less so By the Old Law the Bishop had two Months time to Examine 2 Roll's Abr. 354. by Hob. 317. He hath a convenient time and by Can. 1 Jac. 1 cap. 95. the two Months is reduced to 28 Days And the Ordinary both in Conscience and by the Obligations which his very Order doth import is obliged to Judge for himself as well as to Examine the contrary is repugnant to his Office of a Judge to be forced or compelled to institute every Presentee fit or unfit Besides the Ordinary pro Tempore hath the particular care of all the Diocess and during a vacancy is to take care of supplying every particular Cure within his District then when he admits and institutes the very form of Words is Accipe curam meam tuam which renders it more Absurd that nolens volens he must transfer his Cure to a Man not able in his Judgment to execute it 'T is against the Rule of Law for that the Words of it are express articuli Cleri cap. 13. and this Cooke declares to be Affirmative of the Common-Law Item petitur quod personae Ecclesiast ' quas Dominus Rex ad beneficia presentet Ecclesiastica si Episcopus eas non Admittat ut puta propter defectum Scientiae vel aliam causam rationabilem non Subeant examinationem Laicar ' personar ' in casibus antedictis prout his temporibus attentetur de facto contra Canonitas sanctiones sed adeant Judicem Ecclesiasticum ad quem de jure pertinet pro Remedio prout justum fuerit consequendo respons ' de Idonietate persone presentate ad beneficium Ecclesiasticum pertinet Examinatio ad Judicem Ecclesiasticum ita est hactenus usitatum fiat in futurum Here is Idoneitas persone praesentate and the words of the Writ are quod permittat praesentare Idoneam personam And if the Presentee were not a fit person no such Writ can be maintained Then my Lord Coke in his Comment upon that Statute in 2 Inst 631 632. saith that there may be diverse Exceptions to Persons presented as Bastardy Villenage Outlawry Excommunication Laity Under age or Criminal and Lewd in his Conversation or inability to discharge his Pastoral duty as if he be Unlearned and the Examination of the Ability and Sufficiency of the Person presented belongs to the Bishop who is the Ecclesiastical Judge and not a Minister and may and ought to refuse the Person presented if he be not Idonea persona And if the cause of refusal be default of Learning Heresie or the like belonging to the knowledge of the Ecclesiastical Law then he must give notice to the Patron so that default of Learning is by him who was no great friend to the Jurisdiction of Court Christian agreed to be Subject to the Ecclesiastical inquiry and then in Pleading he must show the cause of refusal and the Party may deny the same and then the Court shall write to the Metropolitan or to the Guardian of the Spiritualities sede vacante to certifie if the cause be thus and his Certificate is conclusive if the Presentee be Dead it shall be tried by a Jury 15 Hen. 7.7 the Bishop is declared to be a Judge and not a Minister in this case of Examining a Man's Ability he is a Judge in this case as he is in case of a Resignation for an Ordinary may refuse it and without his acceptance 't is no Resignation and must be so Pleaded Noy 147. Bro. tit Bar. 81. 2. Cro. 197. and so agreed even in the Case of Leach and Thompson in Reg. 53. is a Consultation upon this very surmise that inability ad Retinend ' beneficium propter Crimina belongs to Court Christian and that the Ordinary is Judge thereof which is much stronger than our case because there was a Freehold vested by induction But this hath been agreed by that Court from whose Judgment the present Appeal is that a refusal may be upon insufficiency appearing upon an Examination upon a new Presentation and constant practise proves it The greater if any doubt is upon the Plea if good it says that he was Examined and upon Examination was found incapable The Exception taken to it is that it doth not set forth the particular parts of Learning in which he is deficient that the Temporal Court may Judge if it were a sufficient cause of refusal which is to change and turn it ad aliud examen that Learning is requisite for a Presentee to be Benefic'd they would not have the Ordinary to determine what Qualifications a person ought to have in order to take a Benefice but the Judges in Westminster-Hall They can have no colour for this pretence but that the Ordinary may have refused when competently Learned in their Opinions and they cannot say that the Law hath settled any Rules or measures of Learning requisite Some say Latin is not requisite since the Liturgy is now in English and therefore they would Judge of it others say the less Learning the better Preacher if can Read and Pray and Preach and be indued with Spiritual Gifts and so is their Replication others say that the Ordinary's Judgment must be submitted to the Judge's Opinion of the proportion of Knowledge necessary then they have a Popular pretence that this will give the Bishops too great a Power of refusal and so restrain Patrons from their privilege of Presenting and thereby make themselves Collators But there 's no danger of that because there must be notice and a convenient time for another Presentation and the danger of this restraint is as much the other way for then the Temporal Courts are to do it and it s much at one to the Patron which is to declare the inability the Ordinary or the Temporal Courts On both sides it must be agreed that default of Literature is a good and just cause of refusal the Question is who shall judge of it it is said minus Sufficiens in Literatura ca ratione inhabilis i.e. it being indefinite in omni Literatura necessaria But they Cavil at the Word minus sufficiens as if that agreed him somewhat Learned and forget that 't is said ac perinde incapax And minus sufficiens is in Lawyer 's Latin totally insufficient and so 't is used in all
Demurrers to Declarations Pleas Replications quod Narr ' vel placit ' pred' Materia in eodem content ' minus sufficient ' in Lege existunt ad quam vel quod the party necesse non habet nec per Legem terrae Tenetur aliquo modo respondere i. e. 't is good for nothing 't is insufficient the Court in their Judgments upon the insufficiency of the Plea do always say quia minus sufficien ' existit Then it was argued That it is a good Plea to all intents and purposes from the nature of the thing and the impossibility of making it more particular and certain 2. From the sufficiency of it to all intents and purposes of Tryal 3. From the Precedents and those of Antiquity which warrant this form of pleading 4. From the mischiefs and inconveniencies which must follow and ensue if a greater particularity were required 1. From the nature of the thing and the impossibility of making it more particular and certain if the Bishop were bound to set down in particular and at large every point of Learning wherein this poor wretch was and is deficient 't would be a Pleading like to a justification of an Action done by a private Person and not like to the Pleading of the Act of a Judge which this is 't would be so large as to render it impossible for to joyn an Issue thereupon and then they would have demurred with a Cause because multiplex duplex incertum perplex ' and the rest of our usual Adjectives upon those occasions the Assignment of several and many particulars would have been double and good cause of Exception because one particular might be found true and another not and the Assignment of one particular would have been adjudged insufficient for then they would have said that Learning is of a Complex nature and if a Man should fail in answering any one particular tho' common Question yet he might be qualified in general And therefore the Assignment of one defect tho' never so gross shall not make a Clerk minime capax and therefore no good Plea For if a particular be Assigned that would not prove a general Defect of knowledge according to the words of the Law which is the only thing that could make him incapable ad habend ' beneficium cum Curia Animar ' and therefore the Bishop as a Judge returns him in literatura insufficiens ea de causa minime capax and the special instances would have been Evidences upon a new Tryal or Examination before the Arch-Bishop Now this cause of refusal distinguishes the case from all others that they can insist upon all other inabilities of a Clerk depend upon one single point as Bastardy Villenage Outlawry Excommunication Lay-man Under-age or Ecclesiastical Infancy So all Crimes must have their foundation from a particular Act as Adultery Perjury Simony c. In these it shall not be enough to Plead that he was inhabilis generally or criminosus generally ideo inhabilis because no body can be criminosus but he that hath done some particular Crime and that is to have a several Tryal according to its respective nature if it be an Ecclesiastical Offence then there is a particular method of Tryal if a Temporal then another and so says Coke 2 Inst 632. and therefore a particularity is required there but here 't is all tryable by the same way viz. a new Examination before the Arch-Bishop Here the matter it self admits of no greater certainty for that 't is a general deficiency of Learning only which can make an incapacity of discharging the Pastoral Office it is a matter that must appear by a variety of Questions and cannot be proved by any one single instance whatsoever This is the true reason and difference why in several Cases general Pleading hath been denied and why in this Case it hath been always used and never excepted against Then it was argued That this Plea was sufficient to all the intents and purposes of Tryal and Determination By our Law that Plea is sufficiently certain which may be Tryed without inveigling either Court or Jury that is it must be intelligible and plain and this surely is plain enough the Ordinary had a Power to refuse him for want of Learning sufficient to enable him to discharge his Pastoral Office he Pleads that he was Minus sufficien ' in Literatura this is to be tried by the Certificate of the Arch-Bishop or the Guardian of the Spiritualities during a vacancy and that is evident by 39 Edw. 3.1 2. 40 Edw. 3.25 and from Speccot's Case 5 Rep. 7. There never was an Objection made to the uncertainty of any Plea if the Matter could be fairly reduced to an Issue for a Trial now here the Court might certainly have written to the Archbishop to have known utrum this Creature were minus sufficiens in Literatura ea Ratione inhabilis and the actus Curiae of the Bishop would have been Evidence before his Grace and he might have certified that he was or that he was not sufficiently Learned No say they the Court must not write to the Archbishop to know that till it be said in what Points of Learning he was defective and if these shall be thought material Parts of Learning for a Rector then they must write to know if Hodder had them or not but if they think them not material for the Qualifications of a Pastor they must not write at all This is the true English of the Argument But it was argued That the Temporal Court is only to judge that the Cause of Refusal if true was a sufficient Cause and the Books are that a general default of Learning is a good Cause and this the Archbishop is to try And this is certain enough for to make an Issue or Question proper for that Trial. Besides A greater Latitude and Generality hath of late been allowed in pleading of Proceedings in Courts and before Judges then formerly In ancient days if a Man pleaded a Judgment in a Court in Westminster-hall they set forth the whole then they came to allow of a taliter fuit processum and an Abridgment of the Proceedings then came a Recuperavit only And this was because that all Proceedings in the Superiour Courts were to be presumed regular till the contrary were shewn But this was denied a long while to Inferiour Courts because these were tied to stricter forms and therefore were still forced to set forth the whole then they allowed a taliter fuit processum for them provided still they were Courts of Record But now they allow it in pleading of a Justification upon a Recovery in an Hundred Court because the whole must be given in Evidence so that such a formal Nicety in Pleading is not generally required now as was formerly Besides In Matters triable by the Spiritual Law there is always less particularity required in Pleading then in others triable in Courts Temporal as in Bastardy Divorce
to hold a Curacy of Souls and this is the Reason all their Cases go upon and the Reason insisted upon below i. e. in effect that they must try it not the Archbishop The same Pretence is applicable to any other defect and 't will in Consequence confound Jurisdictions 't will make an Enlargement of the Temporal and Diminution of the Ecclesiastical Jurisdictions tho' both are founded upon the same English Laws and of equal Age and Authority Nor is it any Answer which they have alledged against this That the Judgment at Law is not that this Hodder shall have Institution but that a Writ shall go to the Metropolitan to require him to admit a fit Person upon Mr. Hele's Presentation and that if Mr. Hodder be presented the Archbishop may refuse him as insufficient and so the Archbishop is still Judge of the Sufficiency This looks plausible but they omit or forget the Consequence that if this Judgment stand then if the Archbishop refuse the Temporal Courts must Judge upon another Writ Whether the Cause of Refusal were in a point of Learning which they think requisite for he must not plead a general Defect of Learning but mention Particulars that they may judge of them this is to subject even his Grace the Metropolitan to their Opinion in an Affair within his own Jurisdiction and Conusance It is at last to enforce the Episcopal Judges to contradict their own Opinions and to admit Persons which they think not sufficiently Learned tho' the first Judgment doth not directly place in Hodder yet the next will if the Archbishop prove of the same mind Now this is apparently the Consequence from the pretended Reason of the Judgment for them and it is in effect to deny the old Law that a defect of Learning is a sufficient Cause of Refusal and that the Ordinary is Judge of that Defect and not the Temporal Court And then as to the Cases objected Dyer 254. the Bishop of Norwich's Case in a Quare Impedit which is likewise in 2 Rolls Abridg 355 where the Bishop pleads that the Presentee was a common haunter of Taverns and other Places and Games unlawful ob quod diversa alia Crimina consimilia praed ' the Presentee fuit Criminosus sic inhabilis non idonea persona and this was held an ill Plea But the Grounds and Reasons of that Judgment were not for the generality of the Plea but because the defects specially declared before were not sufficient to make the Presentee sic Criminosus as being not Mala in se but prohibita by particular Laws under certain Penalties Nay the Argument they would make from the general word Criminosus will not hold in the Case in question but is clearly distinguishable from it because one single Act one Crime specially set forth would disable the Man but in this case Ignorance that works a Disability must not be of any one particular thing whatsoever but a general defect of Knowledge And another Reason against their Inference from these and the like Cases is this they belong to a different Examen and upon that they require as was said before a different pleading The great Case and the only one that can be pretended to come near this is Speccot's Case mentioned in every contemporary Report of that Age as a new Case and a new one it is and the Reasons of it are differently reported in divers Books and in truth the Reasons of the Judgment do not warrant it nor make it applicable to the Case at Bar. The Authority of it is questionable for they agree Schism or Heresie which the Judges there take to be all one a Cause of Refusal and others said they did not know what was Schismaticus inveteratus but they did not consider that the Archbishop might tho' they did not but perhaps the Ordinary may judge that to be Schism which is not and therefore the Temporal Courts are to judge what is Schism and in the enforcing of this Case below they said the Ordinary is Judge only of Matters of Fact not if the Fact be Schism which is somewhat strange The Reports of that Case are 5 Rep. 57. 1 Anderson 189 190. Gold 36 and 52. and 3 Leon. 198 199 and 300. in that Case the Bishop pleaded that the Presentee was Schismaticus inveteratus ideo non habilis upon the validity of this Plea there were divers Arguments Two of the Judges says my Lord Anderson were for the Plaintiff and two for the Defendant and for the Decision of the Matter the Opinion of the other was asked and by the greater Opinion Judgment was given pro quer Then were repeated my Lord Anderson's words fol. 189. the Instances that were urged were says he Criminosus Perjurus but they are Matters triable both by Law Spiritual and Temporal and the Coment or how is necessary to be shewn to determine the Trial but Schismaticus in the principal Cause shall be tried only by the Spiritual Court and not by the Temporal as that of an Heretick may be generally pleaded And divers Cases were put to prove General Pleas and Issues triable at Common Law and yet says he Judged pro Quer ' This is my Lord Anderson's Opinion of that Case and whether the Ancient Authorities vouched in that Case do warrant that Judgment must be submitted Besides by our Law 't is not any one Opinion tho' judicially delivered that can make or alter the Law nay it doth not oblige any further than the reason of it is considerable and agrees with the constitution and the Rules of Law my Lord Vaughan always declared in favour of Reason and Authority and that in Honour of our Law for the contrary is to say 't is founded upon no Reason then 't was urged that this Judgment was when the Courts below were in struggle with the Ecclesiastical and the then High Commission Courts Erected by 1 Eliz. had given some provocation which with frequent Prohibitions gave occasions to the Disputes between the Bishops and the Judges in the beginning of the Reign of K. Jac. 1. But admitting the Case to be Law the same is easily distinguishable from this and founded upon different Reasons which cannot govern or influence this 'T was urged first in that Case there was some possibility for the Bishop to have set out the Heresie certainly and particularly for all Heresie must be founded upon some particular Tenet that is Repugnant to the common received and Orthodox Doctrine Now in this Case say they the Heresie ought to be Assigned that the party may Traverse it and purge himself and the Arch-Bishop not to be inveighled and obliged to run over all the species of Heresie which say they may be almost impossible but may have only one particular Opinion to Examine whether the Presentee did obstinately maintain it for if the Temporal Court had been of Opinion that such Tenet in particular was not Heresie tho' the Ordinary thought it so
of making a new Presentation And in all pleadings of this sort the notice is generally alledged to be the same day or within a day or two at the most That certainly it ought to be with convenient notice But then it was urged That the six Months ought not to be from the Death of the last Incumbent if there be a person Criminal presented which the Patron doth or may know as well as the Bishop there the six Months must be from the Death but if it be upon a refusal for a Cause which lies only in the Bishop's knowledge then it must be only from the notice and that notice ought to be personal but if the Months incur from the Death the notice should be in conveient time and what that is the Court must Judge Then it was urged from Speccot's Case That this Plea is too general and uncertain that a Temporal right being concerned the Bishop ought to have set forth more particularly and distinctly the cause of his Refusal 8 Rep. 68. the certain cause of a Divorse must be shewn 11 Hen. 7. 27. 2 Leon. 169. The Ordinary is a Judge only of the matter of Fact if true not if this matter pretended be a cause of Refusal he ought to alledge that so particularly as to manifest it to the Court in which the Suit depends That 't is a legal cause of Refusal He is not a Judge whether Hodder's insufficiency in any one point of Learning be a good cause of Refusal for if it should be so the Temporal Right of Patronage would be very precarious The Court ought to have enough before them whereon to Judge of the Cause as well as that on Issue may be joyned and tried here 't is only said that he is less sufficient not that he is altogether illiterate this will put it in the Power of the Ordinary to refuse for want of knowledge in any Learning as he thinks fit as Mathematicks or Anatomy without which a Man may be well Qualified to be the Rector of a Benefice and the consequence of such Opinion will be much to the prejudice of Lay Patrons that certainty in Pleading ought to be encouraged for the prevention of the exercise of Arbitrary discretionary Power that the Wisdom of the Common-Law is to reduce things to single Questions that the Determination upon them may be plain and certain and known and the reasons of such Determinations may appear which cannot well be done if general Allegations or Pleadings be countenanced for which and other Reasons urged by the Counsel who argued with the Judgment 't was prayed that the Judgment might be affirmed It was replied on behalf of the Plaintiff in the Writ of Error that the Books were very plain that the six Months were to incur from the Death of the Incumbent and then if there were not notice in convenient and due time in order to enable the Patron to present again that this ought to come on the other side That to require Learning in Presentees to Benefices would promote the Honour of the Church nay of the Nation in general That every Man who knew this Presentee and his Ignorance even as to the Latin Tongue must acknowledge that the Reverend Prelate who refused him had done worthily and becoming the Character of his Order Family and Person and therefore 't was prayed that the Judgment should be Reversed and it was Reversed Robert Davis versus Dr. John Speed WRIT of Error on a Judgment in Ejectment in the King 's Bench for certain Lands in Hamp-Shire the Declaration was upon the Demise of Francis Cockey The Verdict finds that William Horne and Ann his Wise were seized of the Lands in Question in their Demesne as of Fee in Right of the Wife that they made and executed a Deed Covenanting to Levy a Fine thereof to the use of the Heirs of the said William Horne lawfully begotten and to be begotten on the Body of the said Ann his Wife and for default of such Issue then to the use of the right Heirs of the said William Horne for ever and a Fine was Levied accordingly to these uses that William and Ann were seized prout Lex postulat that they had Issue William Horne their Son who Died without Issue in the Life of William and Ann that she Died and William the Father and Husband Survived her that then he Died without Issue that the lessor of the Plaintiff is Sister and Heir of the said William Horne that after his Death she entred and was seized prout Lex postulat that Elizabeth Joanna and others were Co-heirs of the said Ann that their Estate and Interest came by mean conveyances to the Defendant Speed That he was seized prout Lex postulat that the Lessor of the Plaintiff entered and Ousted the said Speed and made the Demise in the Declaration and that the Plaintiff entered and was Possessed till the Defendant entered upon him and Ousted him And if it shall appear to the Court that the Desenant's entry was lawful they find the Defendant not Guilty and if c. upon this special Verdict Judgment was given in B. R. for the Defendant And now it was Argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was Erroneous and ought to be Reversed for that these Lands belonged to the Heirs of the Husband by force of this Deed and Fine that this was in the Case of an Use which was to be construed as much according to the intent of the Parties as a will That if by any construction that intent could be fulfilled it ought That the intent of the parties here was plain to give this Estate to the Husband and his Heirs that uses are to be governed by Equity and that therefore the meaning of the persons concerned was to be pursued That the Woman intended to take nothing her self nor to reserve any thing but to part with the whole That here was an use by implication in the Husband tho' none could result back to the Husband because he had none before but that in this case as in that of a Will an use might by implication very well be raised to the Husband and then this might be good by way of Remainder after the Death of the Husband or create an Estate Tail in him by coupling the use implied to him for Life with that to the Heirs of his Body and that if it were not so then that it was good as a springing contingent use to the Heirs of the Body of the Husband c. and that in the mean time till that Contingency happened the same was to the use of the Wife and her Heirs And that this Construction contradicted no Rule of Law That it was no more than was allowed in case of a Will by way of Executory Devise according to Pell and Brown's Case in 2 Cro. that the Estate should remain in the Wife and her Heirs during the Life of the Husband
whom of right it doth belong to grant that Office whensoever it shall be void It was then further insisted on and proved That there are in the nature of Clerks three considerable Officers of the Court of King's Bench The first and chiefest is the Clerk of the Crown called sometimes Coronator Attornat ' Domini Regis c. his Business is to draw all Indictments Informations c. in Pleas of the Crown This Officer being the chief Clerk in Court is always made by Patent under the Great Seal The second Officer is this the Prothonotary or chief Clerk for inrolling Pleas between Party and Party in Civil Matters He and his Under-Clerks do inroll all Declarations Pleadings c. in Civil Causes especially where the Proceedings are by Bill This Clerk files in his Office all Bills Declarations c. and all the Writs of this Court in Civil Matters are made by him and his Under-Clerks and tested by the Chief Justice And he hath the custody of all Returns of Elegits Executions Scire Facias's and the filing of all Villes every of which are in the Eye and Judgment of the Law in the hands of the Chief Justice whose Clerk this Officer is The third is the Custos Brevium who keeps all the Rolls and Records of Judgments in this Court which are also said to be in the custody of the Chief Justice And this Office when void is in his Gift and Disposal It was further shewn on the behalf of the Defendants That in the Statute of Edw. 6. against the Sale of Offices there is a Salvo to the two Chief Justices and Judges of Assize to dispose of the Offices in their disposition as they used formerly And ever since that Statute these two Offices of chief Clerk to inroll the Pleas c. and the Custos Brevium have without controul been disposed by the Chief Justice of the Court of King's Bench. And it is also observed That in the Grant of this Office to Mr. Bridgman the Plaintiff it is recited that Henly and Wightwick were debito modo admitted to this Office and yet they never had any Grant from the Crown nor any other Grant except that from the Chief Justice before mentioned Then to prove the Defendant's Title to the Office the Grant of the now Chief Justice to them for their Lives was produced and read and proved that they were admitted and sworn To answer all this Evidence there was produced the Copy of an Act of Parliament which was made in 15 Edw. 3. to this effect It is consented that if any of the Offices aforesaid which are other great Offices mentioned in the Act or the Controller or chief Clerk in the Common Bench or King's Bench by Death or other Case be ousted of their Office the King with the consent of the great Men c. shall put another fit person in such Office From whence the Plaintiff's Counsel would have inferred That the King had a right to grant this Office and that this Act was declaratory of such his Right and that all the Grants from the Chief Justices ever since that Act were but Usurpations on the Crown and that no Usage of granting it by the Chief Justices could prevail against the King's Right To this it was replied That the Act was repealed as did appear by the Record it self as well as by their own Copy produced And for a further Answer 't was said That the Office in question was not the Office mentioned in that Act for that Act mentions the chief Clerk of the King's Bench which is the Clerk of the Crown and so called in the 2 H. 4. the Statute against Extortion and he is in reality the chief Clerk in that Court and hath precedency of this Officer both in Court and elsewhere And that this Officer is not called chief Clerk in the King's Bench altho' he is the chief for inrolling of Pleas Civil in that Court And the constant Usage explains the meaning of that Act. And that the Officer called chief Clerk was meant to be the Clerk of the Crown for that that Office hath been always granted by Letters Patents according to that Act And the Office in question was never enjoyed one day by virtue of a Grant from the Crown The Defendants did further insist That it was a Scandalous Imputation upon all those chief Justices who were Persons of Probity and Virtue and had clear Reputations to surmise that they imposed and usurped upon the Crown as they must all have done if the right of granting this Place be in the King And Sir Robert Heath that was the King's Attorney took a Grant of the Office in question from the Chief Justice and upon his Admittance the right of the Chief Justice to grant it is affirmed upon Record Then all this Evidence on both sides being given and the same being strong on the Defendants behalf the Court proposed to the Plaintiff's Counsel to be Nonsuit which they would not but prayed the Court to direct the Jury some of them saying that they would take another Course And then the Court did briefly sum up the same and particularly the Evidence of the Act 15 Edw. 3. and what was urged from it by the Plaintiff and the Answers made thereto and left the Matter to the Jury upon the whole The Jury withdrew and after some time gave a Verdict for the Defendants Upon this Verdict the Counsel for the Plaintiff prayed leave to bring in a Bill of Exceptions and produced in Court and tendred to the three Judges to be sealed a Parchment Writing in form of such a Bill in which after a Recital of the Declaration and Issue in the Cause 't is alledged That the Plaintiff's Counsel produced in Evidence the Grant of the Office to the Plaintiff and that they shewed to the Court and Jury that the Office is of the Grant of the Crown And that to make out the Right of King Charles the Second to grant this Office to the Plaintiff they gave in Evidence the 15 Edw. 3. which in the Bill is set out at large and is in Substance as is before set forth And 't is further alledged in the Bill That the Justices refused to allow admit and receive the Allegations and Matters given in Evidence as sufficient to prove the Plaintiff's Title to this Office by reason whereof the Jury found That the Defendant did not disseize the Plaintiff and prays that the Justices would put their Seals to it according to the Statute of Westminster 2. cap. 31. The Justices upon reading this Bill did refuse to Seal it 1. Because 't is asserted therein That the Plaintiff's Counsel did show that this Office was of the Gift and Grant of the King whensoever it should be void whereas there was no such Evidence to show any such Right in the King offered or pretended to besides the Patent in question and the Act of Edw. 3. 2. That the Judges refused to allow admit and
Denbigh and Montgomery leaving three Daughters and Coheirs Mary Penelope and Susan Susan married Sidney Godolphin one of the present Appellants In July 1674. Mary and Penelope in consideration of 4000 l. paid to the said Mary by Richard Carew Esq and in consideration of a Marriage to be had and which was afterwards had between Penelope and the said Richard Carew by Lease and Release convey all those their two Parts of the said Lands in Denbigh Salop and Montgomery to Trustees and their Heirs to the use of Richard Carew for Life then to Penelope for Life for her Jointure then to the said Trustees and their Heirs during the Lives of Richard and Penelope to preserve contingent Remainders then to the first and other Sons of Richard and Penelope in Tail-Male successively And in default of Issue-Male to the Daughters of Richard and Penelope in Tail And in default of such Issue as to one Moiety of the said two Parts to the first and other Sons of the said Penelope by any other Husband in Tail the Remainder of all and singular the Premisses to the said Richard Carew and his Heirs for ever subject to this Proviso That if it should happen that no Issue of the said Richard upon the Body of the said Penelope should be living at the decease of the Survivor of them and the Heirs of the said Penelope should within Twelve Months after the decease of the Survivor of the said Richard and Penelope dying without Issue as aforesaid pay to the Heirs or Assigns of the said Richard Carew the Sum of 4000 l. that then the Remainder in Fee-simple so limited to the said Richard Carew and his Heirs should cease and that then and from thenceforth the Premisses should remain to the use of the right Heirs of the said Penelope for ever After this Mary intermarried with the Appellant Sir Evan Lloyd and a Partition was made of the Premisses and the same had been enjoyed accordingly ever since and Mr. Carew and his Lady levied a Fine to Mr. Godolphin and his Lady of his part who did thereupon by their Deed dated 23 Sept. 1676. covenant to levy a Fine of Mr. Carew's two Parts to such uses as he and his Lady should limit and appoint but have not yet levied the said Fine Richard Carew and Penelope his Wife to avoid all Controversies that might happen whereby the Estate of the said Richard Carew or his Heirs might be question'd or incumbred by the Heirs of Penelope and to the End to extinguish and destroy and barr all such Estate Right Title Equitable or other Interest as the said Penelope then had or her Issue and Heirs might have or claim to the same by any Power Settlement or Condition on payment of 4000 l. or otherwise to the Heirs of Richard Carew by the Heirs of the said Penelope and for the settling of the same on the said Richard Carew and his Heirs did in Michaelmas Term 1681. levy a Fine of the Share and Part allotted to them and by Deed of 10 Decemb. 1681. declare that the said Fine should be to the use of the said Richard for Life Remainder to Penelope for Life the Remainder to the said Richard Carew his Heirs and Assigns for ever And do further declare That the Fine agreed to be levied by the Appellants Sidney Godolphin and Susan his Wife by their Deed dated the 23 Sept. 1676. should be to the same uses and then direct the Trustees by the first Settlement to convey to those uses Penelope died without Issue in 1690. Richard Carew made his Will in Aug. 1691. and devised the said Lands to Sir John Carew Baronet his Brother subject to pay all his Debts and Legacies and made Sir John Carew his Executor In Decemb. 1691. Richard Carew died without Issue and Sir John Carew entred and was seized and possessed of the Premisses and paid 4855 l. for the Debts of Richard Carew Sir John Carew died and the Respondent Sir Richard Carew an Infant is his Son Heir and Executor The Appellants Mary and Susan claiming the Lands as Heirs to Penelope by virtue of the said Proviso in the first Settlement upon payment of the 4000 l. exhibited their Bill in Chancery to compel the Trustees to convey the Estate to them upon such payment Upon hearing of this Cause on Bill and Answer the Court ordered a State of the Case to be drawn which was as above and afterwards the Court assisted by the Chief Justice of the Common Pleas and Mr. Justice Rooksby seeing no Cause to relieve the Plaintiffs dismissed their Bill And now it was argued on behalf of the Appellants That such Dismission ought to be set aside and amongst other things it was insisted on in favour of the Appeal that this Proviso was not void that it was within the reason of the Contingent Limitations allowed by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk and there were quoted several Paragraphs in the Argument made by the said Lord Chancellor as that future Interests springing Trusts or Trusts Executory Remainders that are to emerge or arise upon Contingency are quite out of the Rules and Reasons of Perpetuities nay out of the Reason upon which the Policy of the Law is founded in those Cases especially if they be not of remote or long Consideration but such as by a natural and easie Interpretation will speedily wear out and so things come to the right Channel again That tho' there can be no Remainders limited after a Fee-simple yet there may be a Contingent Fee-simple arise out of the first Fee that the ultimum quod sit or the utmost Limitation of a Fee upon a Fee is not yet plainly determined that tho' it be impossible to limit a Remainder of a Fee upon a Fee yet 't is not impossible to limit a Contingent Fee upon a Fee that no Conveyance is ever to be set aside in Chancery where it can be supported by a reasonable Construction especially where 't is a Family Settlement Then these Paragraphs were applied and further urged That there could not in reason be any difference between a Contingency to happen during Life or Lives or within one year afterwards that the true reason of such Opinions which allowed them if happening within the time of the Parties lives or upon their deceases was because no Inconvenience could be apprehended thereby and the same Reason will hold to one year afterwards and the true Rule is to fix Limits and Boundaries to such Limitations when so made as that they prove Inconvenient and not otherwise That this Limitation upon this Contingency happening was the considerate Intention of the Family the Circumstances whereof required Consideration and this Settlement was the Result of it and made by good Advice That the Fine could not barr the Benefit of this Proviso for that the same never was nor ever could be in Penelope who levied the Fine As to the Pretence That if the
the Respondents Davenport and Townsend and their Heirs to the use of him and his Heirs till his then intended Marriage should take effect And after such Marriage had then as to part in trust for his intended Wife and her Heirs and Assigns for ever And as to the rest in trust to permit the said Earl to receive the Profits during his Life and after his decease to sell the same for the best price and out of the Money raised by Sale to defray the Funeral Expences and pay his Debts and deliver the surplus as he should by his last Will and Testament in writing attested by three Witnesses or by another Deed in writing so attested appoint and for want thereof to the Executors and Administrators of the Earl with a Proviso That the said Earl by his last will and Testament or any other Deed in writing to be thereafter by him made and executed and attested as aforesaid might alter change determine or make void all or any the Trusts aforesaid and for want of such after to be made will or deed then in trust for the said Earl Edward his Heirs and Assigns for ever Earl Edward died without Issue of his Body and without Marriage The Appellant exhibited a Bill to have the said Deeds of Lease and Release set aside and to have the Will executed The Respondents as Heirs insist upon the Deeds as a Revocation and their Heirship was thus Theophilus Earl had Issue Edward Katharine Arabella and Margaret Edward died in the Life time of Theophilus leaving Issue Edward late Earl of Lincoln Katharine by Sir George Booth had Issue the Respondent Veer Booth Arabella by Robert Roll had Issue Samuel Roll and Margaret married Hugh Buscowen and had Issue the Respondent Bridget Fortescue And the Court assisted with the two Chief Justices and Mr. Justice Powel saw no Cause to relieve the Appellant And now it was argued with the Appeal That the Dismission was Erroneous there being Cause for Relief for that the Marriage never did take effect nor any serious Overture or Treaty was made by the said Earl on that behalf so as the said Earl did continue and at the time of his death was seized of the same Estate in the Premisses he had at the time of making and publishing the Will that if at Law the Deeds of Lease and Release were in strictness a revocation of the Will yet in Equity they ought not to be construed a Revocation of the said Will so often and so solemnly and deliberately made and published and upon so good a Consideration as the support of the Honour that the said Will was the Result of the Earls continued Intentions throughout his Life and the Deeds were only the effect of some sudden Fancy or Passion and even by those Deeds no benefit was designed to the Respondents for the disposition of the Surplus of what should be raised by the Sale was to be to his Executor Sir F. C. the Appellants Father and that did evidence a continued Kindness to him who never had offended him and no regard to the Respondents who tho' they were his Heirs general were related only at a distance and scarcely known by him and very well provided for by great Portions raised out of the Estate for their Mothers Then 't was argued that this Estate was meerly an equitable one and consequently Equity only ought to govern the disposition of it here 's no express Revocation pretended that a Mortgage in Fee is no Revocation for in Equity it doth not make the Estate anothers Here is a Noble Peer who is to sit in the Seat or Place of his Ancestors and therefore no Presumption Intendment or forced Implication ought to be against him or his Interest that this was designed to take effect in case the Marriage was had and not otherwise that here was no intention to revoke but upon the Contingency of his Marriage And there was cited Zouch and Barker's Case 1625. in the Lord Coventry's time Chancery Rep. and the Lord Boucher's Case in Edward the Sixth's time the Case was said to be in Dyer left as a Query and in 1 Rolls Abridg. And for these and many other Reasons and Authorities urged 't was prayed that the Dismission should be Reversed and the Appellant Relieved On the other side 't was insisted That tho' this was not an express Revocation by the use of words declaring it to be such yet 't was a true legal and effectual Revocation that these Deeds of Lease and Release did alter the Estate that here 't was for payment of Debts as well as in consideration of the intended Marriage that here was a manifest change of his Intention that both Will and Deed were voluntary and inconsistent and therefore the latter must stand that here were no Children or Creditors claiming under the Will that tho' the Subject Matter were an equitable Interest yet Equity ought to follow the Rules of Law that the Law made this a good Revocation and Equity ought to judge it the same way unless Fraud were proved to be used in the procuring of the Execution of these Deeds that the reason why a Mortgage even in Fee is not a Revocation is because a Mortgage doth carry upon the face of it a Defeasance 't is not reckoned an Inheritance to the Heir of the Mortgage but shall be Personal Estate and Assets to pay the Mortgagee's Debts This Deed was revocable by an after Will which shews the Party to have no regard for any former Will nor is there any reference to the Will then in being If a Marriage had happened 't would be agreed to have been a Revocation and if so when was the Will revoked by what Act by the Deed or by the Marriage That it was said that it certainly would have been revoked by the Deed and consequently ought to be construed a Revocation tho' no Marriage did ensue Revocations are the same in Equity as at Law and so was it held in the Case of the Earls of Bathe and Mountague The Statute of Frauds never was thought to extend to such Revocations as these Tho' Earl Edward's Intentions were once to support the Honour with the Estate yet it was always in his power to alter it The Lease and Release passed the Equity of Redemption and consequently 't is the same now between the Appellant and Respondents as if there had been no Mortgage in the Case 'T was further urged That a Will is but an imperfect Conveyance inchoate only and ambulatory as the Books term it till the death of the Party and another Will may revoke it and with greater reason may a Deed which alters the Estate and shews a change of the Intention of the Person who was Owner of it There 's no need of a Consideration to warrant the Revocation of a Will there needs no reason to be given for it 't is only the Mind of the Party which both makes and revokes the Will A Will is
reason to continue the exemption afterwards as there could be to allow it during the Interval when they do not draw the Plough And for these and other Reasons urged 't was prayed That the Decree for Tythe quoad such Cattle as ever had been used with the Plough should be reversed On the other side it was urged That the said Decree is agreeable to the Law and supported by many Resolutions in the Court of Exchequer that there was a Reason for Tythe in this Case because these Cattle tho' formerly used to the Plough they ceased now to belong to it and consequently Tythes became due that there 's a Difference in the nature of the thing for when they feed in order to labour the Parson hath a Tenth of the Benefit produced thereby but when they are fatted only for Sale 't is otherwise That this was a settled and allowed Difference in the Exchequer That while the Oxen are working no Tithe shall be paid for their feeding because there is Tithes of other things arising by the Labour of such Cattle but when they do no Work and are turned off to be fatted and are graz'd there Tithes shall be paid for the Herbage which they eat they being no way beneficial to the Parson in any other Tithes And many Cases in scacc ' were cited to warrant this Distinction and 't was said That none could be alledged to the contrary wherefore 't was prayed That the Decree might be affirmed and it was affirmed Magdalen Foubert Widow Grandmother and Administratrix of Katherine Frances Lorin de Granmare Appellant Versus Charles de Cresseron Administrator with the Will annexed of Katherine Granmare Respondent APpeal from a Decree in Chancery the Case was thus Peter Lorin Son of the Appellant and Katherine de Mandoville came to an Agreement to marry and that the longest Liver should take all whether Issue or not A publick Notary took and entred that Agreement in his Book and both Peter and Katherine subscribed the same so entred and then being written fair they signed it again and the now Appellant and other Relations subscribed it They Intermarried Peter was kill'd in Flanders and left Katherine with Child afterwards she being near her time thought fit to make her Will which she wrote with her own hand in French in these Words Quoy que je sois presentement en perfaite santé de corps et d'esprit cependant ne sçachant de quelle maniére il plaira à Dieu de disposer de moy dans ma couche Je trove à propos de marquer jcy més dernieres volontés En cas qu'il luy plaise de me retirer de ce monde si c'est sa volonté de donner dés jours à mon enfant Je luy laisse generalement tout ce qui peut m'appartenir supplie trés humblement Madame Foubert ma soeur Lorin et Mr ' le Bas d'en prendre soin J'espere que Mr. Foubert le Major à la consideration de feu son paure Pere luy rendront lés services dont il aura besoin que Dieu ne l'abandonnera point Je l'en supplie de toute mon ame comme aussi de benir toute la famille fait a Londres ce 16th de Novembre 1693. par moy Catherine de Granmare After which the said Katherine annexed a Codicil to her Will in these words viz. En cas qu'il plaise à Dieu de retirer mon Enfant aussy bien que moy Je donne à Madamoiselle le Bas ma bague de Diamans mon Ecritoire garnie d'argent une boëte de rubants neufs Je donne a Madamoselle Peireaus mon habit brun doublé couleur de paille et mon habit Jaune une demie douzanie de més Chemises Je donne au fils à Jacob dix livres sterlings pour le mettre en Métier à son pere ce qui se trovera dés habits de mon Mary Je donne a Catharine Williams ma filleule dix livres sterlings pour la mettre en mètier Tout le reste de ce qui m'appartient tant en Meubles que Linge Vaissell d'argent Argent Monnoye qui m'est dù Je le laisse à ma soeur Lorin a mess ' de Cresseron pour etre egallement partagé entre eux J'excepte seulement le portrait de mon Cher Mary ma bague Turquoise que Je donne à ma soeur Lorin la prie de garder l'une l'autre tant qu'elle vivra Je donne aussy a Monsieur Cresseron ma montre d'Or que le souhaite qu'il garde et porte pour l'amour de moy fait à Londres ce 16th Novembre par moy Catherine Granmare Then she was deliver'd of a Daughter and a few Hours after died and the Daughter did survive her near two Years and then died And after her Mother's Death there being no Executor named Administration of the Estate of the Testatrix was committed during the Minority of the Child with the Will annexed but the Appellant possest her self of the Estate being about 600 l. Value Then after the Child's Death the Appellant as next of Kin took Administration to the Child and also to Mrs. Granmare The Respondent exhibited his Bill claiming a Moiety of the Residuum by force of the Codicil the Appellant by Answer insisted upon the Invalidity of the Agreement between Peter and Katherine but that being waived the Question arose upon the words of the Will and particularly these donner des jours and 't was insisted That nothing was designed to the Respondent but only in case the Child were still-born or should die in her lying in whereupon the Court ordered the Cause to be continued in the Paper and that both sides should take time to procure the Opinion of French Men born and acquainted with the Laws of France and the Cause coming on again to be heard before the Lord Chancellour and upon reading of several Opinions of French Gentlemen bred to the Laws of that Country the Court declared That the Respondent was well intituled to his Moiety of the Residue after the particular Legacies Debts Funerals and other Allowances deducted and decreed the same accordingly It was argued on the behalf of the Appellant That this Decree was erroneous that the proper Signification of those words was no more than to give Life that it was so translated at Doctors Commons That that Translation does agree with the Opinion of several of the most learned Divines amongst the French Refugees here That 't is so interpreted in the Famous Dictionary of the French Academy dedicated to that King where the Words are as follows viz. lés jours au pluriel signifie la vie That Days in the plural signifie Life without any Determination of time That there are few Frenchmen of any Understanding but will acknowledge That by lés jours d'une personne the
yet then they would have over-ruled the Plea and not have wrote to the Arch-Bishop at all This is the sole cause of that Judgment and then the consequence will be as was observed before But their own reason fails in this Case for here the sufficiency of Learning is Traversable for as hath been shewn it hath often been Traversed and as to the ea Ratione inhabilis no Objection can be to that for the old Authorities Cited do warrant nay require it and all Pleas of Special non est fact ' as by breaking of a Seal and the like are in the same manner Then besides the very words of the Law of Articuli Cleri are very much worthy of consideration it impowers the Bishop to refuse a Clerk propter defectum scientiae alias Causas rationabiles now all these Causes of Refusal mentioned in their cases comes under the causas Rationabiles and causa vaga in certa estnon Rationabilis now want of Learning is not included by intendment but by express words and therefore need not otherwise be set forth take it for granted that as they would have it the Temporal Judges are to Judge what is a reasonable cause of Refusal yet they are not to Judge if defect of Learning be a cause or not for in that the Statute is positive then if said to be deficient in Learning ea ratione inhabilis they had nothing to Judge upon they were only to write to the Arch-Bishop to know if the Fact were true if he were deficient and therefore it need not be set forth any otherwise then as the Statute expresses it tho' in that case they say there are divers sorts of Schisms and Heresies in Doctrines on which the Bishop might warrant his Refusal yet 't is not so much as once pretended there are any Opinions delivered in those cases that deficiency of Learning is subject to the same Rules of Pleading Then the Plea is in the Negative as was shewed before which is more than enough to make a good difference and Negatives in a Bar are always allowed to be more general because most favoured and especially here where the matter and person to which the words are applied do sufficiently restrain and determine the seeming uncertainty of it Nothing can be pretended to reduce this to a greater certainty but the Canons or the Statute of 13 Eliz. cap. 12. or other Laws of the same nature 1 Canons of King Jac. 1. made in 1602. and they were made pursuant to Canons made 1562. by which no Man was to be admitted nisi rationem fidei juxta Articulos Religionis in Synodo Episcoporum Cleri Anno 1562. approbatos Latine reddere eandem Scripturae testimonio Corroborare possit Can. 3 4. Conditiones in ordinandis requisit ' this is merely a Negative injunction on the Bishop never to confer Orders upon any Man that cannot do this it is not mandatory upon him to ordain every Man that can do this nor does it any way lessen or diminish the Authority or Judgment of the Ordinary in Examination of the fitness and Learning requisite So is the Statute of 13 Eliz. the same induces an incapacity on those that shall not subscribe the Articles but it leaves all things else to the Ecclesiastical Law neither the Canon nor the Statute are Derogatory from the Old Ecclesiastical Law they both leave it in Statu quo to the Ecclesiastical Judges no Man will pretend that these are a Repeal of the Statute of Articuli Cleri so that the Law remained as it did with more Latitude indeed to the Bishop but not with more favour to the Clerk They objected that here was not convenient notice to the Patron and the usual pleading of it is the same day But surely that 's well enough and so was it held by all the Judges that favoured their side in this case and 't is apparent that he had above four Months time to have presented another besides the Judges declared below that if not a convenient time it ought to have come on their side but they admit notice by their Replication and insist upon his Orders as an Estoppel to say that he was Illiterate They pretend That he is still under the Bishop's Jurisdiction and that he may deprive him for the same Cause if sufficient after Institution but that 's a great mistake for there may be a cause of Refusal which is not of Deprivation for he may become Learned that was not so and besides the Rule is false after induction they would then be discoursing about Freehold c. a Man may be refused because non compos but he cannot be deprived for that Cause though the Bishop may provide a Curate c. As to the pretence of six Months notice from the time of the Refusal 't was never insisted on at the Bar in C. B. or B. R. and the Judge who doubted did only say he was not fully satisfied with the current Opinion of the Books his doubt arose upon this That the cause of Refusal was not within the Partron's knowledge Suppose the Man had not Episcopal Orders but pretended to them and the Patron knew nothing of the matter should this Presentation prevent lapse and the rest were all of another Opinion and the Books are full to this effect for the Patron ought to present a Man qualified otherwise 't is as no Presentation and then lapse in course Suppose he had presented a mere laicus 't is as none suppose he had presented a Woman as idonea persona 't is as none and these instances may seem Trivial but our Books do mention them 2 Roll's Abridg. 364. Kelway 49.59 34 Hen. 7.21 14 Hen. 7.21 and Dyer 227. and Sir Symon Degges Parson's Gounsellor Upon the whole the Question is whether a Court of Law shall Repeal the Statute of Articuli Cleri whether the Plea shall be adjudged ill which is in the very words of that Statute when the same Fact was never pleaded otherwise nay when it hath been pleaded thus often times and never excepted against till now Wherefore it was prayed that the Judgment might be Reversed On the other side 't was argued That the Bishop's Plea below was too general and the Plaintiffs Replication good that his being Ordained a Priest and a Licensed Preacher is enough that this is an Answer to the Allegation of the Minus Literatus his being a Priest is a kind of a supersedeas to his Examination that there was no Learning requisite to his having a Cure of Souls which was not Antecedently necessary to his receiving of Orders That he ought not to be admitted into Orders unless he be assured of or named to some Curacy all which supposes the Qualifications Requisite for a Benefice with Cure of Souls then 't was urged that here was not notice sufficient for 't is not till many days after the Refusal for this might have put Hele the Patron beyond the possibility