Honour is Surrendred and a new Honour granted the former is either extinguished or not before the other takes effect if not then the Party hath both together against the will of the Donor and perhaps the new Honour may be of that Name and Place and those Persons may be concerned in it that will not permit it to be effected and if it be in the power of the Ancestor for the advantage of his Posterity by the Surrender of one Honour to take a greater it may be also in his power to do it for his prejudice As to the Objection That by the same Reason an Honour may be extinguished it may also be Transferred he answered That there was a great disparity betwixt them for as to Alienations of Honours there 's a great reason they should be disallowed for they all flow from the Prince and therefore 't is not fit they should be conferred on any but by the Prince tho' the King 's of England have granted power to a General to give the Honour of Knighthood c. in the Field for the Reward and Incouragement of Valour yet this granting of Nobility is a Prerogative peculiar to the King's Person alone no Man else can ennoble another Time was indeed when the Earls of Chester having Counties Palatine by virtue of their Jura Regalia did create Barons yet they never sate in Parliament as Peers because Peerage being a thing of so high a nature cannot be given by any but a Soveraign and is given as a Trust and Obligation so that common Reason saith they are not transferrable It is said in our Law that where Offices are granted to a Man in Fee See Jones 122 123. he may grant it over yet in some Cases they are so near to the Crown that they cannot be transferred but must descend with the Blood upon the same Reason no Man can ever transfer an Honour for the near Relation which it hath to the Crown but in case of Extinguishment that Relation and Trust ceaseth and so they are different Cases Then lastly as to the great Objection of the Judgment of the House of Lords in Roger Stafford's Case Anno 1640. he answered That notwithstanding that Case their Lordships had given him leave to argue it and therefore they intended not that should be any Impediment 2. That is no Judgment for they being a Court of Judicature do as other Judges judge of the Matter before them only Then the Question was Whether an Honour could descend to the half Blood They refetred it to the Judges who were of Opinion that it should Thereupon ariseth another Question Whether a Man might Convey or Transfer his Honour to another 'T was resolved he might not This drew another Question whereupon they resolved that a Lord could not Surrender his Dignity the Original Cause was about a Descent to the half Blood the Resolution is he cannot Surrender how then can they pretend that to be a Judgment when the Question in point of Judgment was not before them Suppose it had been resolved and it 's a wonder it had not all that time that a Lord could not forfeit and that had been a third step to have made it a perfect Business for considering the times it had been a most convenient Resolution But besides all that the King's Counsel were never heard in the point and the rejecting the Opinions of Learned Men shows it was no Resolution of the whole House tho' entred upon the Journal and therefore he prayed Judgment against the Petitioner The Earl of Shaftsbury spoke in the House for the Petitioner The stress of the Argument for the King in this Case is founded upon these two Assertions 1 That Honours are taken to be within the Statute de Donis c. and the general Rules of that Statute 2. And then secondly That Honours are to be governed as other Inheritances by the Rule of the Common Law As for the first it hath not been proved for the Resolution in Nevil's Case 2 Jac. was Extrajudicial and no Judgment of any Cause before them and in such Cases the Judges do not hold themselves to be upon Oath and if there be two or more of another Opinion they do not refuse to sign the Resolution of the major part and so it goes under the denomination of all the Judges but if it were a Judgment of them altogether they could neither alter nor make new the Law neither could they make that intended within the Statute de Donis c. which was not in being till many Ages after Beauchamp in Richard the Second's time being the first Honour that was entailed by Patent 2. The second Assertion is contrary to the Opinion of the most Learned Men the Honour and Dignity of the House the constant practise of Westminster-hall and the direct Evidence of the thing it self Justice Berkley a very learned Judge declared his Opinion Febr. 6. 1640. as appears by the Records of this House That Honours descend from the first that was seized of them contrary to the Rules of other Inheritances and that Honours are not governed by the Rules of the Common Law Justice Dodderidge in Jones 207. is of opinion That Honours are Personal Dignities which are affixed to the Blood the Lords never yet suffered their Honours to be tried at any Court at Law or any other where save before themselves tho' their other Inheritances are tried there as well as other Mens So possessio fratris holds of Lands but not of a Dignity which is not disposed of as other Inheritances nor will it be guided by the strict Rules of Law The Lord Coke is of Opinion in Bedford's Case That an Honour could not be taken away but by Act of Parliament therefore it will be allowed that the concurrence of all Parties concerned may extinguish this as well as other Inheritances but the Concurrence of all can't be without Act of Parliament for the whole Kingdom have an Interest in the Peerage of every Lord It is a dangerous Doctrine to say our Judicature and Legislature is our own only The House of Lords is the next thing to the Crown tho' that be far above them yet those that reach at that must take them out of the way first they were voted useless and dangerous before the Crown was laid aside and as in Descent of the Crown the whole Kingdom hath such an Interest in it as the King cannot Surrender or alien it so in a proportionable degree tho' far less the King and Kingdom have an Interest in their Lordships and Dignities and Titles It is true they may be forfeited but it doth not follow that they may be extinguished by Surrender There be two Reasons for the Forfeiture 1. There is a Condition in Law that they shall be true and loyal to the Government 2. Honours are inherent in the Blood and when that is corrupted that which is inherent is taken away but in case of a Surrender these Reasons do
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
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
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
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
it hath been time out of Mind But here 's a new Constitution and the Rule holds so in Commissions of Oyer and Terminer if the direction be so as is the Case in Plowden 384. the Earl of Leicester's Case If a Mayor and three Aldermen have Conusance of Pleas what a Mayor and two does is null and void And if there be no direction in particular for the number the Law requires the majority So that here was no Councel because but five of them present The Councel have not the power but the Governour with the Advice and Assent of the Councel and so ought their pleading to have been according to their Case That if a Man justifies as a Judge to excuse him from an Action he must set forth his Authority and the Cause must appear to be within his Conusance and so are multitudes of Cases 3 Cro. 130. 2 Leon. pl. 43. and 1 Cro. 153 557 579 593. 12 Rep. 23 25. Mod. Rep. 119. But taking it as a Councel neither Person nor Thing are within its Jurisdiction for if their Doctrine be true that by being Governour he is so absolute as to be subject only to the King then what Sir John Witham did being while and as Deputy Governour which is the true Governour to all purposes in absentia of the other is not examinable by a Successor But admitting for the present that by the Law one Magistrate may be punishable before his Successor for Miscarriages which were committed colore Officii yet here are no such Miscarriages sufficiently alledged to be charged on him 1. There 's no pretence of an Oath nor Circumstances shewing a reasonable Cause of Suspicion one of which ought to have been 2. In pleading no Allegation is sufficient if it be so general as the Party opponent can't in reason be supposed capable of making an Answer to it and that is the true Cause why our Law requires Certainty He did male arbitrarie execute the Office to the Oppression of the King's Subjects No Man living can defend himself on so general a Charge as this is for if Issue had been taken thereon all the Acts of his Government had been examinable which the Law never allows Then the Particulars are as general 1. That he did not take the usual Oath and it doth not appear what Oath or if any was requirable of a Deputy Governour nor who was to administer it so that non constat whether 't was his Fault or the Governours besides that 's no cause of Imprisonment for any thing which appears in the Plea 2. Assuming illegally the Title of Lieutanant Governour that is so trivial as it needs no Answer for Deputy Governour and Lieutenant Governour are all one locum tenens is a Deputy è contra 3. Altering of Orders at his Chamber ad libitum which were made in Court not said that there was any such Court or what Orders or where made non tantum without etiam or verum etiam is not a sufficient positive Allegation not said that he was guilty but only charged and not said how charged whether with or without Oath in writing or by parol nor said to be in any such manner as that the Councel ought or might receive it tho' Oath be not necessary to be mentioned in the Commitment yet it ought to be alledged in pleading because 't is necessary to warrant the Commitment as was held in the Lord Yarmouth's Case in B.R. It could not be to secure his answering the same for not so expressed and 't is not said that Sureties were demanded or denied or that he had notice of the Charge and surely this was bailable As to the Query If conusable here 't was argued That they had not pleaded to the Jur ' nor any Matter to oust the Court of its Jur ' If they intended by this Plea to have done that they should have given Jur ' to some other Court in some other place but this is not done for if an Injury 't is relievable somewhere in the King's Dominions and whether it be so or not is examinable somewhere Now here is a Wrong complain'd of as done by one English-man to another English-man and a Jur ' attacht in the King's Bench both of Cause and Person by the Bill filed and his Defence to it besides Jur ' could not be examined in the Exchequer Chamber because both the Statute and the Writ of Error expresly provide against it and. this Writ of Error is founded upon that Affirmance and therefore questionable whether that could be insisted on here But supposing it might 't was argued that the Action lies for that 't is a transitory Action and follows the Person wheresoever he comes under the power of the Common Law Process and that a Man may as well be sued in England for a Trespass done beyond Sea as in Barbadoes or the like place as for a Debt arising there by Specialty or other Contract that no Body but Prynne ever denied it and he did so only in case of Bonds dated there That many Actions have been maintained and tried here for Facts done in the Indies notwithstanding special Justifications to them and the Trials have been where the Actions were laid There was quoted Dowdale's Case 6 Rep. 47 48. and 7 Rep. 27. and if otherwise there would be a failure of Justice in the King's Dominions 32 Hen. 6.25 vide Jackson and Crispe's Case Sid. 462. 2 Keeble 391 397. 'T was then argued That whatsoever question might be made about the Trial of the Issue if one had been joyned yet now Demurrer being to the Plea if that Plea be naught then the Plaintiff is to have Judgment upon his Declaration and that is all right It was further said That the Justification of such a tort or wrong ought to be according to the Common Law of England for that Barbadoes is under the same Law as England and if 't were not upon his pleading it must be intended to be so and tho' they should be intended different yet the Defendant in the Action was obliged to the same Rules of Pleading for tho' the Matter may justifie him for an Act done there which would not justifie him for the same Act done here yet he must shew that he hath pursued the Rules of Law in that place or in case of no positive Laws the Rules of Natural Equity for either the Common Law or new instituted Laws or natural Equity must be the Rule in those places 'T was agreed That according to Calvin's Case 7 Rep. 17. upon the Conquest of an Infidel Country all the old Laws are abrogated ex instanti and the King imposes what he pleases and in case of the Conquest of a Christian Country he may change them at pleasure and appoint such as he thinks fit tho' Coke quotes no Authority for it yet 't was agreed that this might be consonant to reason But 't was denied that Barbadoes was a Conquest 't was
haberi decrevit and then he adjourns 't is no Argument to say that he was hindred for he might have proceeded in absentia and if the 16th of June be tacked to it 't is longer than the time There needed no formal adjournment for that he is Authorized to proceed in a Summary way 't is no such absurdity to call that a Visitation which was in some sort hindred since notwithstanding the obstruction some Acts were done and more might have been by adjourning to another place 3. Here was no such cause as could warrant a Deprivation it was not one of the causes mentioned in the Statutes which are not directions merely but they are the constituent Qualifications of the Power and Contumacy is none of the causes nay here is no Contumacy at all The Offence of the Suspended Fellows was only a mistake in their Opinions and the Doctors was no more and 't is not a Contumacy for refusing to answer to or for any Crime within the Statutes for there was none of the Crimes mentioned in the Statutes laid to the charge of the Rector if the Crime charged had incurred Deprivation perhaps a Contumacy might be Evidence of a Guilt of that Crime and so deserve the same Censure but Contumacy in not consenting to a Visitation can never be such especially when the consenting to a Visitation is not required under pain of Deprivation 4. Admitting the Visitor legally in the Exercise of his Office that here was cause of Censure that the Cause or Crime was deserving of that Punishment which was inflicted that Deprivation was a congruous Penalty for such an Offence yet t was argued That this Sentence was void for that the Visitor alone was in this Case minus competens judex because his Authority was particularly designed to be exercised with the consent of others which was wanting in this Case This was the same as if it had required the concurrence of some other Persons Extra Colleg ' then that such a concurrence was necessary appears from the words of the Statute his meaning seems plain upon the whole to require it A greater tenderness is all along shewn to the Rector then to the Scholars 't is sine quorum consensu irrita erit hujusmodi Expulsio vacua ipso facto and the Sentence it self shews it necessary because it affirms it self to be made with such consent and it cannot be thought that the Rector should be deprivable without their consent when the meanest Scholar could not Then here 's no such consent for 't is not of the four Seniors but of the four Seniors not Suspended now this doth not fulfil the Command of the Statute for the Suspension doth not make them to be no Fellows a Suspended Fellow is a Fellow though Suspended a Suspension makes no vacancy the taking off of the Suspension by Sentence or by Effluxion of time doth make them capable of acting still without the aid of any new Election and they are in upon their old choice and have all the priviledges of Seniority and Precedency as before If they ceased to be Fellows by the Suspension then they ought to undergo the Annum probationis again and to take the Oaths again In case of Benefices or Offices Religious or Civil Ecclesiastical or Temporal 't is so a Suspension in this Case is only a disabling them from taking the Profits during the time it continues And 't is no Argument to say That their Concurrence was not necessary for that they had withdrawn themselves and were guilty of Contumacy for that a Man guilty of Contumacy might be present if withdrawn from the Chapel he might be in the Colledge or in the University and 't is not found that they were absent and then their Consent not being had the Sentence was void and null and consequently no Title found for the Lessor of the Plaintiff in the Action below It was replied in behalf of the Plaintiff much to the same effect as 't was argued before and great weight laid upon the Contumacy which hindred the observance of the Statutes that by allowing such a Behaviour in a Colledge no Will of the Founder could be fulfilled no Visitation could ever be had and all the Statutes would be repealed or made void at once that tho' this Crime was not mentioned 't was as great or greater than any of the rest that here was an Authority and well executed and upon a just Cause and in a regular manner as far as the Rector's own Misbehaviour did not prevent it and therefore they prayed that the Judgment might be reversed And upon Debate the same was reversed accordingly Note That in this Case there was one Doubt conceived before and another after this hearing The first was If a Writ of Error lay in Parliament immediately upon a Judgment in the King's Bench without first resorting to the Exchequer Chamber but upon perusing the Statute which erects that Court for Examination of Errors it appeared plainly that that Act only gives the Election to the Party aggrieved to go thither that it did not take away the old Common Law method of Relief in Parliament and so hath the Practise been but upon Judgments in the Exchequer Court the Writ of Error must first be brought before the Lord Chancellor and cannot come per saltum into Parliament because the Statute in that case expresly ordains That Errors in the Court of Exchequer shall be examined there and so held in the Case of the Earl of Macclesfield and Grosvenor The other Doubt was raised by a Motion in B. R. for the Court to give a new Judgment upon the Reversal above and insisted on that it ought so to be as was done in the Case of Faldo and Ridge Yelv. 74. entred Trin. 2 Jac. 1. Rot. 267. Trespass and Special Plea and Judgment in B. R. for the Defendant and upon Writ of Error in the Exchequer Chamber the Judgment was Reversed and upon the Record returned into the King's Bench they gave Judgment that the Plaintiff should recover contrary to the first Judgment for otherwise they said the Law would prove defective and a Precedent was shewn in Winchcomb's Case 38 Eliz. where the same Course was taken and the like Rule was made Mich. 1 W. Mar. upon the Reversal of the Judgment inter Claxton vers Swift which is entred Mich 2 Jac. 2. B. R. Rot. 645. the like between Sarsfield vers Witherley 'T was argued on the other side That the Court which reverses the Judgment ought to give the new Judgment such as ought to have been given at first that in the Exchequer Chamber it may be otherwise because they have only power to affirm or reverse for yet in the Case of King and Seutin the Exchequer Chamber gave a new Judgment tho' they cannot inquire of Damages and that is a kind of Execution which must be in B.R. In Omulkery's Case 1 Cro. 512. and 2 Cro. 534. the Court here sends a Mandatory Writ to
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
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
8 Rep. 171. York and Athen's Case Lane's Rep. 20. Hob. 115. 2 Rolls Abridg. 158. Stevenson's Case 1 Cro. 389 390. 'T was argued that nothing could be inferred from Tanfield's Opinion in 2 Rolls Abridg. 159. which is also in Lane's Rep. 65. for there the Debt was not a Debt to the King till after the Death of the Testator but here is a Forfeiture to the King before the Elegit sued and admitting that the King hath only the pernancy of the Profits yet while he hath so no other Person can intermeddle for the King is intituled to all the Profits even to a Presentment to a Church which was void before the Outlawry as is Beverly's Case 1 Leon. 63. 2 Rolls Abridg. 807. and Oland's Case 5 Rep. 116. And Process of Outlawry is to be favoured and encouraged as 't is a Means for the recovery of just Debts and the effects of them by Forfeiture to the King ought to be favoured as a Prerogative wherewith the King is intrusted to that purpose 'T is a Penalty or Judgment upon him to be put Extra Legem because he contemns the Law and will not obey it so that as to him 't is the greatest Justice in the World that he should not enjoy any benefit of his Estate by virtue of the Law during the time that he despises it And as to Baden 't was his own default that he did not extend sooner he trusted the Party longer then he should and for that he may thank himself Wherefore upon the whole 't was prayed that the Judgment should be affirmed and it was affirmed Hall al' Executors of Tho. Thynne Versus Jane Potter Administratrix of George Potter APpeal from a Decree of Dismission in the Court of Chancery The Case was thus That Thomas Thynne Esq having intentions to make his Addresses to the Lady Ogle gave a Bond of 1000 l. Penalty to the Respondents Husband to pay 500 l. in Ten days after his Marriage with the Lady Ogle the Respondent assisted in promoting the said Marriage which afterwards took effect soon after the said Thynne was barbarously murdered and about six years after Mr. Potter brought an Action upon this Bond against the Appellants as Executors of Mr. Thynne and proving the Marriage recovered a Verdict for the 1000 l. Thereupon the Appellants preferred their Bill in Chancery to be relieved against this Bond as given upon an unlawful Consideration the Defendants by their Answer acknowledge the Promotion of that Marriage to be the Reason of giving the Bond. Upon hearing the Cause at the Rolls the Court decreed the Bond to be delivered up and Satisfaction to be acknowledged upon the Judgment The Respondent petitioned the Lord Keeper for a re-hearing and the same being re-heard accordingly his Lordship was pleased to Reverse that Decree and ordered the Respondents to pay Principal Interest and Costs or else the Bill to stand dismist with Costs And it was argued on behalf of the Appellants That this Bond ought in equity to be set aside for that even at the Common Law Bonds founded upon unlawful Considerations appearing in the condition were void that in many Instances Bonds and Contracts that are good at Law and cannot be avoided there are cancelled in Equity That such Bonds to Match-makers and Procurers of Marriage are of dangerous Consequence and tend to the betraying and oftentimes to the ruin of Persons of Quality and Fortune And if the use of such Securities and Contracts be allowed and countenanced the same may prove the occasion of many unhappy Marriages to the prejudice and discomfort of the best of Families that the Consideration of such Bonds and Securities have always been discountenanced and Relief in Equity given against them even so long since as the Lord Coventry's time and long before and particularly in the Case of Arundel and Trevilian betweeen whom the Fourth of February 11 Car. 1. was an Order made in these or the like words Vpon the hearing and debating of the Matter this present day in the presence of the Counsel Learned on both sides for and touching the Bond or Bill of 100 l. against which the Plaintiff by his Bill prayeth relief It appeared that the said Bill was originally entred into by the Plaintiff unto the Defendant for the payment of 100 l. formerly promised unto the said Defendant by the Plaintiff for the effecting of a Marriage between the Plaintiff and Elizabeth his now Wife which the said Defendant procured accordingly as his Counsel alledged But this Court utterly disliking the Consideration whereupon the said Bill was given the same being of dangerous consequence in precedent upon reading three several Precedents wherein this Court hath relieved others in like Cases against Bonds of that nature thought not fit to give any countenance unto Specialties entred into upon such Contracts It is therefore ordered and decreed That the said Defendant shall bring the said Bill into this Court to be delivered up to the Plaintiff to be cancelled Then 't was further urged That the Appellants had once a Decree at the Rolls to be relieved against the Bond in question upon consideration of the said Precedent in the time of the said Lord Coventry and others and of the Mischiefs and Inconveniences likely to arise by such Practises which increase in the present Age more then in the Times when Relief was given against such Bonds and therefore 't was pray'd that the Decree might be Reversed On the other side it was urged That the Consideration of this Bond was lawful that the assisting and promoting of a Marriage at the Parties request was a good Consideration at Law in all Times to maintain a Promise for payment of Money That this Bond was voluntary and the Party who was Obligor was of Age and sound Memory that here was no Fraud or Deceit in procuring it that Chancery was not to Relieve against Voluntary Acts that here was a great Fortune to be acquired to the Appellant's Testator by the Match that here was Assistance given that the Persons were both of great Quality and Estate and no Imposition or Deceit on either side in the Marriage That it might be proper to Relieve against such Securities where ill Consequences did ensue yet here being none and the thing lawful and the Bond good at Law the same ought to stand that here are no Children Purchasers or Creditors to be defeated that there are Assets sufficient to pay all and consequently there can be no Injustice in allowing this Bond to remain in force that it was the Expectation of the Respondent without which she would not have given her Service in this Matter and that it was the full meaning of the Appellant's Testator to pay this Money in case the Marriage took effect that there was a vast difference between supporting and vacating a Contract in Chancery that tho' Equity perhaps would not assist and help a Security upon such a Consideration if it were defective at Law
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
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
tried by a Jury And the Petition is wholly of a new Nature and without any Example or Precedent being to compel Judges who are by the Law of the Land to act according to their own judgments without any Constraint or Compulsion whatsoever and trenches upon all Mens Rights and Liberties tending manifestly to destroy all Trials by Jury And it is further manifest That this Complaint is utterly improper for your Lordships Examination for that your Lordships cannot apply the proper and only Remedy which the Law hath given the Party in this Case which is by awarding Damages to the Party injured if any Injury be done for these are only to be assessed by a Jury And they these Respondents are so far from apprehending they have done any wrong to the Petitioners in this Matter that they humbly offer with your Lordships leave to wave any Priviledge they have as Assistants to this Honourable House and appear gratis to any Suit that shall be brought against them in Westminster-hall touching the Matter complained of in the Petition And they further with all humility offer to your Lordships Consideration That as they are Judges they are under the Solemn Obligation of an Oath to do Justice without respect of Persons and are to be supposed to have acted in this Matter with and under a due regard to that Sacred Obligation and therefore to impose any thing contrary upon them may endanger the breaking of it which they humbly believe your Lordships will be tender of And they further humbly shew to your Lordships That by a Statute made in the 25th of Edw. 3. cap. 4. it is enacted That from thenceforth none shall be taken by Petition or Suggestion to the King or his Councel unless by Indictment or Presentment of good and lawful People of the Neighbourhood or by Process by Writ Original at Common Law and that none shall be put out of his Franchise or Freehold but by the Course of the Common Law And by another Statute in the 28th of Edw. 3. cap. 3. it is expresly provided that no Man shall be put out of his Lands and Tenements nor imprisoned or disinherited but by due Process of Law And by another Statute made in the 42 Edw. 3. cap. 3. it is enacted That no Man shall be put to answer without Presentment before Justices or Matter of Record on due Process and Original Writ according to the old Law of the Land And the Respondents further say That inasmuch as the Petition is a Complaint in the nature of an Original Cause for a supposed Breach of an Act of Parliament which Breach if any be is only examinable and triable by the Course of the Common Law and cannot be so in any other manner and is in the Example of it dangerous to the Rights and Liberties of all Men and tends to the Subversion of all Trials by Juries these Respondents conceive themselves bound in Duty with regard to their Offices and in Conscience to the Oaths they have taken to crave the benefit of defending themselves touching the Matter complained of in the Petition by the due and known Course of the Common Law and to rely upon the aforesaid Statutes and the Common Right they have of Free-born People of England in Bar of the Petitioners any further proceeding upon the said Petition and humbly pray to be dismissed from the same Then it was after Debate ordered That Counsel be heard at the Bar of the House on the said Petition And afterwards upon the Day appointed for the hearing of Counsel it was insisted on in the behalf of the Petitioners That here was a Right and a Right proved and no ways to come at it but this that if a Bill of Exceptions be tendred and refused this House can command them to do it that this proceeding of the Judges is to stifle the Matter of Law the Writ upon the Statute must be returnable here and cannot be otherwise that this follows the Judgment into Parliament that this House is to judge of every thing belonging to that Judgment that if this cannot be done there will be a failure of Justice that there have been Writs of Error upon Judgments with the Bill of Exceptions annexed that Damages to be recovered in an Action gives no Reparation for the Office that the Action must be brought before the Judges and so it must be a Dance in a Circle that as to the Judges Oaths the Justices of Peace are upon their Oaths and yet they may be committed that this is not fit for a Jury to try Whether the Judges have done well or ill in refusing to Seal this Bill of Exceptions This Refusal is the way to keep the Law within the Bounds or Walls of Westminster-hall and effectually to prevent its ever coming hither that this was not a Complaint of the Judges that as yet they would not accuse them of a Crime they only said fac hoc vive that the Court of King's Bench below doth the same thing to the Judges in Ireland they command others and ought to be commanded that they themselves send Mandatory Writs as the Cases are in Yelvert ' Cro. Car. That the Lords had directed the Judges in many things and so they did in Jeffrey Stanton's Case that by Command under the Privy Seal things have been done which otherwise would not and my Lord Shaftsbury was remanded to the Tower upon the Authority of that Case 15 Edw. 3. the Statute says that the Peers shall Examine for by great Men are meant the Peers Then were urged certain Cases where the Lords had commanded the Chancery to proceed speedily and to give Judgment c. Earl of Radnor's Case Englefield and Englefield and other like Cases were quoted and from thence they argued the Power of the Lords to command the Judges to do the thing desired 'T was argued on the other side against the Petition to this effect That this was a Cause of great consequence in respect of the Persons concerned as also of the Subject Matter it being the Complaint of a Noble Peeress against three of the Judges before whom she was lately a Suitor and concerning the Jurisdiction of this House That this Petition was the most artificial which could be contrived to hinder the Justice of the Law and to procure a Determination in prejudice of Two hundred thirty five years enjoyment that it is designed to get a Cause to be heard and adjudged on a Writ of Error by the Evidence onone side only or rather by that which was no Evidence at all if the Copy produced at the Trial was true for now upon the return of what they desire nothing of the Defendants Evidence would or could appear When a Bill of Exceptions is formed upon the Statute it ought to be upon some point of Law either in admitting or denying of Evidence or a Challenge or some Matter of Law arising upon Fact not denied in which either Party is over-ruled by the
upon grievous pain sometimes before the King himself sometimes before the King's Council sometimes to the Parliament to answer thereof anew to the grievance of the Parties and in Subversion of the Common-Law of the Land 't is Enacted that after Judgment the Parties shall be in Peace until the Judgment be undone by Attaint or Error this is agreed and amplified 3 Bulst 47.115 Here is mention even of the Parliaments Summoning persons to Answer in Subversion of the Laws There are other Statutes not Printed as 4 Edw. 3. numb 6. Cotton's Abridg. 7. and the same in 2 Inst 50. The Lords gave Judgment of Death without Indictment upon some who were not their Peers and agreed in full Parliament that they should be discharged of so doing for the future and that it should not be drawn in President that the like should not be done on any but their Peers 't is a Declaration of the Lords nay 't is an Act of Parliament and penned in the same manner as 29 Edw. 1. Statute del Estoppel at a Parliament agreed 33 Edw. 1. by common accord and 9 Edw. 2. the King in Parliament by Advice of his Council and these are held to be Statutes This was not only an acquittal from the trouble but a clear denial of the Power as appears by the words before that they had assumed upon themselves and the words subsequent that the like should not be done again The Complaint was because it was intermedling with Commoners after that manner Suppose this House should make an Order upon this matter which is a Law business and not of Equity no Execution can be made of it but Commitment There is the 15 Edw. 3. now insisted on Printed in the Old Statute Book but omitted in this 't is in Cotton 28.33 and 't is thus the Commons complained of breaches of Magna Charta c. and pray remedy with this Conclusion That every Man may stand to the Law according to his Condition and the Lords pray that Magna Charta may be observed and further that if any of what Condition soever should break it he should be adjudged by the Peers of the Realm in Parliament the next Parliament and so from Parliament to Parliament and it was Enacted accordingly This was Specious the same being only for the breakers of Magna Charta but in 17 Edw. 3. that whole Parliament i. e. all the Acts of it are Repealed which Repeal seems designed for the Petitioners for it Repeals the supposed Laws which make both their Title and this Jurisdiction which they would support 'T is observable what is said in the Repeal that the Act was contrary to the King's Oath in prejudice of his Crown and Royalty and against the Ancient Law And such is this for here 's no use of the King 's Writ no Address to or Command by the King for this Proceeding nor any mention of his name in the Petition By 1 Hen. 4. cap. 14. Appeals in Parliament for Offences are declared against as contrary to Reason and the Constitution this is such This is not incident to the Power of Hearing and Determining upon the Writ of Error because as was said before it belongs properly to the Chancery to Issue a Writ Commanding it to be done Si ita est as is Suggested By 12 Rep. 63. the King himself cannot take any Cause out of the Court where it depends and give Judgment on it himself And this House can make no Order upon this Petition that will be a Record as in Hob. 110. The Petition is in the name of a Person not party to the Record which seems very new for 't is by a Stranger in the eye of the Law to the Cause and consequently ought not to be joyned in any legal proceeding if this be such This is not incident to the Jurisdiction of the Error no more than Amendment of an Error in the Court from whence the Record comes or the filing of a Baile a Declaration or a Warrant of Attorney or the Sueing out another Process in Defect of one lost or the like These things are never Examinable in the Superior Court for in these Collateral things the other are intrusted Here 's no Hardship upon the Petitioner for he might have been Non-suite or have given this Repeal'd Act in Evidence at first and then have demurr'd on the Defendant's Evidence or might have Sued a Writ on the Statute of Westminster 2. But suppose this House should Examine this matter and find the Petition to be groundless will such Determination prevent the Judges from being troubled by Sueing of the Writ afterwards Suppose it E contra that this House should punish the Judges and commit them and award Damages or make other Order in favour of the Petitioners would such Order bar or stop the legal process afterwards can any Order made here be used below as a Recovery or Acquittal as an Auterfoits Convict or Auterfoits Acquitte If there be any thing in it 't is a breach of a Statute Law for which they are punishable at the King's Suit will the proceeding here save them from the trouble of answering to an Indictment or Information for the same thing Then since a Writ lies to Command them to Seal this Bill and since an Act of Parliament directs it if it were a true one perhaps it may be Questionable if they do not break their Oaths in case they Sign it in Obedience to any other direction If they did it in Obedience to the Royal Word Signet or Privy Seal of the King their Master 't would be a breach of their Oath Then as to presidents of the Exercise of such a Jurisdiction none come near this And abundance of particular Cases were put and answered but the considerable one was Jeffery Stanton's Case 14 Edw. 3.31 Cot. 30. The Case is odd 't is in Fits Abridgment tit voucher 119. there is a Writ directory to the Judges to proceed to Judgment or to bring the Record before the Parliament that they might receive an Averment c. To this Case it was Answered That the same was long before most of the Statutes aforementioned and in full Parliament and in that Case Stone would not agree to it but adhered to the Law according to his Opinion 't is true Shard in the absence of Stone gave Judgment according to that Advice but a Writ of Error was afterwards brought in the King 's Bench and the Judgment was Reversed 15 Edw. 3. B. R. even contrary to the Advice of Parliament to the other Judges As to the other Cases of Property Examined here either the Parties submitted to Answer or they were at the Suit or Complaint of the Commons or by Consent of the King and Commons but none of them carry any resemblance to this where the Judges insist upon it that there is another and a proper Remedy All the Cases in Ryley's Placita Parliamentaria are either Ordinances of Parliament or directions to follow
the Earl of Pembroke's Case in Littleton's Rep. 181. and in Jones 215 223. the Court went upon the Reason that the Jury found him to be the same Person Latch 161. there they would intend him an Esq at the time of the Commission and a Knight at the time of the Return and it was for Necessity-sake for to prevent the avoiding of so many Trials as had been upon that Commission Lord Ewre's Case 2 Cro. 240. there 't was held well enough because sufficiently described so in a Grant if it cannot be intended otherwise than to the same Person there 't is well enough but here they can never be the same In Case of an Earl or Bishop there 't is understood who is meant by the Description there can be but one of that Title but here the Plea saith That he was not a Knight at the time and Sir Thomas Ormond was attainted by the Name of Thomas Ormond Esq and ill for that Reason 2 Rolls Abr. 43.198 Dyer 150.1 Leon. 159.160 the highest and lowest Dignity are universal and the same in every Kingdom 7 Rep. 16.20 Edw. 4.6 can any body say upon this Grant That the King intended to pass this Advowson to a Man that then was only an Esq Selden 682. the Addition of Esq is drowned and merged in that of Knight and Selden was a very competent and good Judge of this Matter Then 't was said that the only way to salve this which had not been urged for the Plaintiff was that he might be reputed a Knight and a Name of Reputation will be sufficient to take by and to this it was answered That he who is reputed a Knight and is none cannot take by that Name And besides if he could it should have been pleaded by a per Nomen in case of a Bastard the Reputative Name must be shewn to make the Grant good the Degree of Knight was formerly of Esteem in the Law as upon a Writ of Right if the Mise be joyned and if a Peer be Party to any Issue at Law triable by Jury c. As to the Objection that a Grant to one by a Name of Dignity which he really had not viz. The Eldest Son of a Duke as a Marquess and that a Grant to him by that Name is good 't was answered That there was a real Reputation he takes place after all real Marquesses as a Marquess by the Rules of Heraldry There 's a ground for it from the Precedency given him by the common Use and Custom of the Realm and they are named so now-a-days in Deeds but anciently Conveyancers were more Cautinos and named them Esquires commonly called Marquesses and even now careful Men call them eldest Sons of such Dukes c. If a Reputation would have done it the pleading should have been with a Cognit ' et Reputat ' per Nomen It is the name which intitles the Grantees to take and otherwise they have no pretence to claim by such Letters Patents no more than John or Thomas Theckston and if the Person hath any other Name of Reputation that ought to be shewn wherefore it was hoped That this was cause enough to affirm the Judgment Then it was argued That this Grant was void as a Grant of an Advowson appendant when upon the Record it appeared to be an Advowson in gross that the Defendant had admitted it an Advowson in gross in Queen Elizabeth that he hath not only admitted but confess'd it in almost direct terms by saying Bene Verum est that Car. 1. became and was seized in manner as in the Declaration this is a full Confession That the Queen was seized in gross 't was said to come to that King by Descent and so there is no room left for Presumption or Intendment that it was by any wrongful or other Seisin Then 't was urged That nothing passed to the Earl of Warwick because not appendant but in gross and for this was cited Moor 45. Hob. 322 323. and other Books so that it doth not appear that the King did intend to pass this Advowson for in the Grant to the Earl of Warwick there 's no Grant of it by any express Name which its probable would have been had the same been intended now to suppose it appendant is to suppose against the Record against both the Averment in the Count and the Confession in the Plea 't is in general Words una cum Advocationibus c. nor does it pass by the Letters Patents of Car. 1. because it did not pass to the Earl by those of Queen Eliz. this Grant is ushered in after all the Recitals and those suppose the Advowson to have passed by the first Igitur wherefore it must be upon Consideration of what is before alledged this is at least an illative Word and cannot begin an independent Substantive Clause of it self so is Vlterius 2 Browt 132. If this Granting Part should be taken to be Substantive and to have no Reference to what is precedent all those Recitals would be vain and insignificant and the King might as well have begun with the Words of the Grant The King's Grants are to be taken according to his Intentions and those are to be expounded by the Recitals then were quoted many Cases as 5 Rep. 93. Hob. 120.203 Hutt 7.2 Rolls Abr. 189.11 Rep. 93. and it was said That here are many false Recitals Sir Will Theckston claims that must be intended a lawful Claim whereas he could not lawfully challenge any Right to this Advowson That the King presented Wilson by lapse The King was deceived in thinking that this passed to the Earl The Agreement between Dr. Wickham and Sir William Theckston was only to deceive the King Here 's no notice taken of the Advowsons being in gross The Quality and Nature of the Advowson is totally concealed from the King the Words notwithstanding any Defect helps only want of Form Here was a plain Artifice in the Matter in Queen Elizabeth's Grant it was Advowsons in General c. but when Car. 1. is to confirm that Grant 't is of that Church by Name all the intermediate Recitals between that of the first Grant and the words of this new Grant are dependent on that first The King's Intention That Theckston should have it is not absolutely but secund ' Thenorem Intentionem of the former Patent the King meant only to restore to him his old Right which he had by that Patent notwithstanding the Presentations 10 Rep. 110. all Facts recited in the King's Grant shall be intended to be of the Suggestion of the Patentee If there be several Considerations and one false and the King deceived thereby it shall viciate the Grant 3 Leon. 249. Voers Case cited in Legates Case Fits Tit. Grant 58. 3 Leon. 119. If the Granting Words had stood alone the Case had been more doubtful but here they are all coupled In all the King's Grants there must be some Considerations for his Favour and abundance
of Cases were quoted concerning the King's Grants Misrecitals false Recitals and Deceit c. Then it was strenuously insisted upon That the Recitals and the Granting Clause must be consider'd and judged of together that the contrary Opinion is to make the Granting Part to be without any Consideration 't is to have a Conclusion without Premisses an igitur without a Cause That eadem servitia can never be intended new ones That secundum tenorem must referr to the Appendant Advowson and therefore the Advowson in gross here declared upon and pleaded to can never pass by this Grant and upon the whole it was prayed That the Judgment might be affirmed It was replied on behalf of the Plaintiff in Error That as to the Variance in the Title of Knight no Answer had been given to the reasonable Distinction between the Case of Grants and that of Writs and Indictments that here was no Proof or Appearance of a Diversity of Persons That as to the Grant it self secund ' tenorem could mean only a Reference to the Interest or Estate granted by them not to the thing or the Nature of it That such Words signified only as fully and largely they had no express Relation to the Quality of the Advowson whether in gross or appendant That by such Niceties any or most Patents might be avoided That Grants of Honours as well as of Interests if questioned must be under the same Rule and the Considerations upon which they are grounded may be subject to Inquiry if true or false c. That the Patent of it self without Reference to the pleading was good That the Judgment desired was to condemn a Patent as void because another Patent recited in it was so which perhaps was not fully recited and if it were was not in Judgment before the Court and the substance of what was urged before was in short repeated and prayed That the Judgment might be revers'd and it was accordingly revers'd and Mr. Pierse Scroope being dead presented Francis Pemberton his Clerk who was admitted instituted and inducted c. FINIS THE NAMES OF THE Principal Cases 1. DOminus Rex Viscount Purbeck Page 1 2. Duvall versus Price Page 12 3. John Duvall and Elizabeth his Wife versus William Terry of London Merchant Page 15 4. William Dolphin and Katharine his Wife versus Francis Haynes Page 17 5. Dormer Sheppard al' versus Joseph Wright al' Page 18 6. Whitfield Ux ' al' versus Paylor Ux ' al' Page 20 7. Thomas Arnold versus Mr. Attorney General and Matthew Johnson Esq Thomas Bedford Gent. Page 22 8. Sir Richard Dutton versus Richard Howell Richard Grey and Robert Chaplyn Executors of Sir John Witham decased Page 24 9. Philips versus Bury Page 35 10. Dr. William Oldis versus Charles Donmille Page 58 11. Smith Ux ' versus Dean and Chapter of St. Paul's London and Lewis Ruggle Page 67 12. The Countess of Radnor versus Vandebendy al' Page 69 13. Dominus Rex versus Baden Page 72 14. Hall al' Executors of Thomas Thynne versus Jane Potter Administratrix of George Potter Page 76 15. The Society of the Governour and Assistants of the New Plantation of Vlster in the Kingdom of Ireland versus William Lord Bishop of Derry Page 78 16. Sir Caesar Wood aliàs Cranmer versus Duke of South-hampton Page 83 17. Sir Caesar Wood aliàs Cranmer versus Thomas Webb Page 87 18. Jonathan Lord Bishop of Exeter al' versus Sampson Hele. Page 88 19. Robert Davis versus Dr. John Speed Page 104 20. Wats al' versus Crooke Page 108 21. Lee Warner versus William North. Page 110 22. Briggs versus Clark ibid. 23. William Bridgman al' versus Rowland Holt al' Page 111 24. Dominus Rex versus Walcort Page 127 25. Sir Evan Lloyd Bar. and Dame Mary his Wife and Sidney Godolphin and Susan his Wife versus Richard Carew Bar. an Infant the Son and Heir of Sir John Carew Bar. deceased Page 137 26. Sir William Morley Knight of the Bathe versus Peter Jones Page 140 27. Sir Edward Hungerford and John Hill Executors and Devisees of Sir William Basset versus Edward Nosworthy Page 146 28. Sir Simon Leach al' versus John Thompson Lessee of Charles Leach Page 150 29. Henry Earl of Lincoln versus Samuel Roll al' Page 154 30. John Fox Gen ' versus Simon Harcourt Esq Page 158 31. Henry Lord Bishop of London and Dr. Birch versus Attorney General pro Domino Rege Page 164 32. Dominus Rex versus Reginald Tucker Page 186 33. Joseph Eastmond Executor of Hester Eastmond and Samuel Neyle versus Edwyn Sands Clerk Page 192 34. Magdalen Foubert versus Charles de Cresseron Page 194 35. Philip Jermin and Sarah his Wife versus Mary Orchard Page 199 36. Bennet Swayne versus William Fawkner and John Lane Executors of B. M. Page 207 37. Dominus Rex versus Episcop ' Cestr ' and Richard Pierse Page 212