Witham deceased WRit of Error on a Judgment given in B. R. for Sir John Witham and Sir Richard Dutton and the Award of Execution thereof upon Scire Fac ' brought by the Defendants as Executors of Sir John Witham and affirmed in the Exchequer Chamber in Trespass and False Imprisonment The Case on the Record was thus The Plaintiff William did declare versus Dutton for that he with Sir Robert Davis Baronet Sir Timothy Thornhill Henry Walrond Thomas Walrond and Samuel Rayner did 14 Octob. 36 Car. 2. at L. in Par ' Ward ' c. assault beat and wound the Plaintiff and imprisoned him and his Goods then found did take and seize and the Plaintiff in Prison and the Goods and Chattels from the Plaintiff did detain and keep for three Months next following by which the Plaintiff lost the Profit he might have made of his Goods and was put to Charges c. Contra pac ' ad damp ' 13000 l. The Defendant pleads Not Guilty as to the Venir ' vi armis and all the Assault Imprisonment and Deteiner in Prison before the Sixth of November and after the Twentieth of December in the same Year and as to the beating and wounding and taking seizing and detaining his Goods and thereupon Issue is joyned and as to the assault taking and imprisoning the Plaintiff the Sixth of November and detaining him from thence until in and upon the Twentieth of December The Defendant doth justifie for that long before viz. the 28th of Octob. 32 Car. 2. by his Letters Patents shewn to the Court did constitute and appoint the Defendant his Captain General and Chief Governour in and upon the Islands of Barbadoes and c. and the rest of the Islands lying c. and thereby commanded him to do and execute all things that belonged to that Government and the Trust in him reposed according to the several powers and directions granted to the Defendant by the Letters Patents and Instructions with them given or by such other powers or instructions as at any time should be granted or appointed the Defendant under the King's Sign Manual and according to the reasonable Laws as then were or after should be made by the Defendant with advice and consent of the Councel and Assembly of the respective Islands appoints twelve Men by name viz. Sir P. L. H. D. H. W. S. N. T. W. J. Witham the Plaintiff J. P. J. S. R. H. E. S. T. W. and H. B. to be of the King's Counsel of the Island during the pleasure of the King to be assistant to the Defendant with their Counsel in the management of the Things and Concerns of the Government of the said Island in relation to the King's Service and good of his Subjects there and gives power to the Defendant after he himself had taken the Oath of Office to administer to every Member of the Councel and Deputy Governour the Oaths of Allegiance and Supremacy and the Oath of Office with further power to the Governour by advice and consent of Counsel to summon and hold a General Assembly of the Freeholders and Planters there and to make Laws Statutes and Ordinances for the good Government of the Island and to be as near and consonant as convenlently may to the Laws and Statutes of England which Laws were to be transmitted to be allowed by the King here with power also by advice and consent of Counsel to erect and establish such and so many Courts of Judicature as he shall think fit for hearing and determining all Causes as well Criminal as Civil according to Law and Equity and to appoint Judges Justices of Peace Sheriffs and other necessary Officers for administring of Justice and putting the Laws in execution provided Copies of such Establishments be transmitted to the King to be allowed and with further power to the Governour to constitute and appoint Deputy Governours in the respective Islands and Plantations which then were or should be under his Command to all and every which respective Governours the King by these Letters Patents gave power and authority to do and execute what should be commanded them by the Governour according to the power granted to him by this Commission And the Governor's Authority to continue during the good will and pleasure of the King The Defendant further pleads That after the making of the Letters Patents and before the time of the Assault and Imprisonment viz. 1 Mart. 33 Car. 2. he arrived at Barbadoes and by virtue of the Letters Patents aforementioned he took upon him and exercised the Government of that and the other Islands and continued to do so till the first of May 35 Car. 2. when he had license to return to England That he before his departure by virtue of the said Letters Patents by a certain Commission under his Hand and Seal did constitute the Plaintiff in his absence to be his Deputy Governour in the said Islands of Barbadoes to do and execute the Powers and Authorities granted to the Defendant by the said Letters Patents That the first of August following the Defendant arrived at London in England that the fourth of May 35 Car. 2. after the Defendants departure the Plaintiff took upon himself the Administration of the Government of the Island of Barbadoes that the Plaintiff not regarding the Trust reposed in him by the Defendant nor the Honour of that Supreme Place and Office did unlawfully and arbitrarily execute that Government and Office to the Oppression of the King's Subjects viz. apud Lond ' praed ' in Par ' Ward ' praed ' That after the Return of the Defendant to the Barbadoes viz. 6 Nov. 35 Car. 2. at a Councel holden for the Island of Barbadoes at St. Michael's Town before the Defendant H. W. J. P. E. S. T. W. F. B. which five are of the twelve named Councel in the Letters Patents and Sir Timothy Thornhill and Robert Dawes Counsel for the Island aforesaid the Plaintiff then and there was charged that he in the absence of the Defendant misbehaved himself in the Administration of the Government of the said Island Non tantum in not taking the usual Oath of Office and not observing the Act of Navigation And by his illegal assuming the Title of Lieutenant Governour and altering and changing Orders and Decrees made in Chancery of the said Island according to his own will and pleasure at his own Chamber and altering the Sense and Substance of them from what was ordered in Court by and with the consent of the Councel upon which it was then and there ordered in Councel by the Defendant and Councel that the Plaintiff Sir John Witham should be committed to c. until he should be discharged by due Course of Law by virtue of which Order the Plaintiff the said sixth of Nov. was taken and detained until the 20th of Dec. upon which day he was brought to the Court of the General Sessions of Oyer and Terminer and then by
Court. If such Bill be tendred and the Exceptions in it are truly stated then the Judges ought to set their Seal in testimony that such Exceptions were taken at the Trial But if the Bill contain Matters false or untruly stated or Matters wherein they were not over-ruled then they are not obliged to affix the Seal for that would be to command them to attest a falsity a Bill is not to draw the whole Matter into Examination again 't is only for a single point and the truth of it can never be doubted after the Bill is sealed for the adverse Party is concluded from averring the contrary or supplying an Omission in it This Bill was without Foundation the Plaintiff was not over-ruled in any one Point of Law 'T is true the Counsel desired the Opinion of the Court after all the Defendant's Evidence had been heard concerning their Record and the Judges did declare that they thought it did not extend to the Office in question but to the Clerk of the Crown who is the chief Clerk in Court and hath precedency and the Grant of that Office by the King both before and since that supposed Act proves that to be meant and not the Office in question which hath always been granted by the Chief Justice and this was afterwards left to the Jury Here was no cause for a Bill of Exceptions the Judges at the Counsels desire gave their Opinion upon the thing but did not over-rule them for that the Act being repealed could make no Point of Law but only be Evidence for the Jury to consider Besides this Act tho' repealed is inserted in the Bill as an Act in force And if an Act be set out and no repeal appears it must be understood to be in force and if the Bill had been sealed it must have been taken as in force and the Defendants could not here upon the Writ of Error have shewn the repeal which was in the 17 Edw. 3. and appeared so upon the Evidence from whence 't was inferred That this Bill was too artificial If any point of Law had arisen upon the whole Evidence and a particular point there was none the whole ought to have been inserted in the Bill or at least all that which concerned that Matter If this should be allowed 't would be in the power of any Counsel to destroy any Verdict as in case of a Title by Descent from Father to Son and a Will of the Father had been produced and proved at the Trial and a Bill had been sealed only shewing the Seisin and Descent the Son must prevail tho' he had no Title This is enough to shew that the Judges are not obliged nay are obliged not to Seal this Bill Then it was argued That the present Complaint is beneath the Honour and besides the Jurisdiction of the House of Peers that this was a Complaint of a Default in the Judges which cannot be tried in this place that MagnaCharta was made for them as well as for others that if they offend against any Rule of the Common Law or particular Statute whether in their Personal behaviour or as Judges they are triable only by their Peers that Peers are only such qui pari conditione lege vivunt that the Crown and Constitution of England had so far exalted their Lordships in their State and Condition that 't is beneath them to judge or try Commoners that all Powers and Priviledges in this Kingdom even the highest are circumscrib'd by the Law and have their limits That this is a Complaint of a great Crime in the Judges a Breach of their Oaths and with the insinuation of Partiality to one of themselves which if true incurs loss of their Offices and Forfeiture of their Estates by Fine and of their Liberty by Imprisonment and all this to the King besides Damages to the Party grieved and therefore it concerns them to have the benefit of the Law That this comes not regularly into the House 't is not any matter of Advice to the King nor of Priviledge nor of Contempt to this Court because the Matter complained of was before any Judgment below or any Jurisdiction could be attached here by pretence of the Writ of Error 'T is brought hither by way of Complaint for a supposed Miscarriage in Westminster-hall in a private Cause between Bridgman and Holt two Commoners It presumes the Lords to be proper Judges in the first Instance for the hearing and punishing of all Offences committed by the Judges and that in a Summary way upon a Petition and without that due Process of Law which is established under our Government Either this Refusal is punishable or not If not the Petition ought to be rejected If it be 't is either by the Common Law or by Act of Parliament but neither do warrant this Practise of Petitioning and the old Law is that which past Ages have approved and that by which Justice is to be administred and whatsoever is done by way of Judgment in a different manner than the Law allows is against that Law The proceeding in this manner is against the Consent of the Respondents for they have Pleaded to the Jurisdiction of this House as to this matter c. and therefore it differs from all Cases where the Parties concerned have Answered the Complaint and thereby submitted the same to an Examination and this will prevent the force of many presidents which may be Cited on this occasion Some Persons perhaps have from a confidence of Success or from a slavish Fear or private Policy forborn to Question the Power of their Superiors but the Judges must betray their Reputation and their Knowledge of the Laws if they should own a Jurisdiction which former times and their Predecessors were unacquainted with 'T is necessary to answer the pretence of a failure of Justice in case this method be Rejected and therefore it must be observed That our Law knows nothing of extraordinary means to redress a Mischief but that upon a defect of ordinary ones recourse is to be had to the Legislature and to that only either to explain and correct in reference to things past or to provide remedies for the future But here is a common easie means of relief if there had been occasion By the Statute of Westminster 2 cap. 31. In case the Judge refuses then a Writ to Command him which is to issue out of Chancery quod apponat sigillum suum and then a Writ to own or deny his Seal By 2 Inst 426. the party grieved by the denial may have a Writ upon the Statute Commanding the same to be done juxta formam Statuti Reg. 182. Fitch Natura brevium 21. and 11 Hen. 4.51 62 63. there 's the form of the Writ set out at large It recites a surmise of an Exception taken and over-ruled and it follows vobis precipimus quod si ita est tunc sigilla vestra apponatis Si ita 't is conditional if the Bill
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
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
the Name of his Kinsman Thomas Arnold the Sum of 40 s. all to be paid out of his Personal Estate and then proceeds in these words Being determined to settle for the future after the death of me and my Wife the Mannor of Furthoe with all the Lands Woods and Appurtetenances to charitable Vses I devise my Mannor of Furthoe with the Appurtenances unto Sir Lionel Jenkins Kt. William Dyer Matthew Johnson and Thomas Bedford and to their Heirs and Assigns for ever upon trust that they or their Assigns after the death of him and his Wife should pay and deliver yearly for ever several particular Sums to Charitable Vses therein mentioned All the Particulars amounting in the whole to 120 l. per Annum and charged nothing further on the said Mannor but the Expences of the Trustees in the Execution of the said Trust The said Arnold soon affter died the Wife is also since dead Sir Lionel Jenkyns and William Dyer also dead In Trinity 1692. the Attorney General prefers a Bill against the Appellant as Heir at Law to settle and establish the said Charities and to enforce the Trustees to act or to transfer their trust Estate To which they answer and the Heir by his Answer claimed as Heir at Law the Surplus of the Charity Estate over and above what would satisfie the yearly Payments expressed in the Will and the Charges of executing the said Trust upon a Reference to a Master to ascertain the Court of the yearly value of the Mannor he reports it worth 240 l. per Annum and worth the same at the time of making the Will And on hearing the Cause the Court declared That all the Profits of the Premisses ought by the purport and intention of the Will to be applied to the Charities therein mentioned and that the Appellant Arnold the Heir at Law is totally excluded from the Surplus with direction how the Surplus should go in augmentation of some of the Charities nevertheless in case the Appellant should Seal and Execute to the Trustees a Release and Conveyance of the Premisses according to the Decree then he to have his Costs out of the Sale of Timber and that the Trustees be indempnified And it was argued on behalf of the Appellant That this Decree was not equitable Some Questions were made about the distribution of the Surplus amongst only some of the Charities and about the value but a Surplus was agreed to be in the Case and 't was chiefly insisted upon that the Surplus ought to go and be to and for the use of the Heir at Law for that the Estate is not increased by any subsequent or accidental Improvement and so not like the Case of Thetford School but here at the time of making the said Will was and now is of a good value beyond the Sums given and was so known to be by the Testator and the particular Charities given by the Testator are particularly and expresly named and limited and do amount only to so much as is less than the value of the Land and thS urplus is not disposed of and consequently ought to be the Heirs For as at the Common Law in a Will what is not given away must descend whether you speak of Land or the interest in it so in Equity whatsoever Trust or part of a Trust is not declared and expressed the same shall be for the benefit of the Representative of the Testator either Heir or Executor as the Case may happen Then these Bequests or Devises being particular and express they do and will controul and expound nay restrain and qualifie the meaning of general precedent words That Expression of his being determined to settle his Mannor to charitable Uses will be qualified by the Particulars afterwards as is Nokes's Case in 4 Rep. and many others in the Books Besides 't is not accompanied with any term of Universality that excludes the Construction contended for and if it had been so largely expressed those general words of his designing to settle the whole may be intended only as a Security that the particular Charities may be certainly answered And by such Construction all the words of the Will may be satisfied and then the Trustees may convey the Premisses to the Heir at Law and take Security for the same saving and reserving all the said Charities devised with all reasonable Charges and Deductions without prejudice to the Will of the Testator or to the said Estate which must nevertheless be liable to answer and make good the same so that there can be no Damage done to any of the Parties or Interests concerned by this Construction nay it is the adding a further Security for their payment Now it is plain he designed the Sums given to the particular Uses and no more for that they are all so particular and express and it is pursuant to the Rules of Law and Equity in all doubtful Cases to adjudge in favour of the Heir at Law and not to extend the general words of a Will to enlarge a Charity beyond the intent expressed especially against a near Relation and Heir as this is viz. his Brother's Son Besides the Testator was bred a Civilian and as such knew how fully to express himself if he had intended the Overplus to go in increase of the Charity Or if he had intended them more then is mentioned he would have declared himself in such manner as should exclude all doubt On the other side it was argued That the Testator's intent plainly appeared by his Will to dispose all his Estate wholly to charitable Uses and that the words of the Will were sufficient to carry the whole Estate to that purpose and that it did not appear by his Will that 't was his intent to give his Heir at Law any thing out of his Real Estate that his determination to settle his Mannor with the Appurtenances was to settle the whole that what is not disposed of in Particulars is to be directed by the Court of Chancery that that Court hath done right in directing it in augmentation of the Charities mentioned because the Testator's intent was most in favour of those which are so mentioned That if the Query were askt What shall be done with the Surplus if any The Answer is natural viz. I am determined to settle the Mannor that is the whole on Charitable Uses That the Testator by his Will expressed some Care for his Sister and for John Boncher his Nephew and other his near Relations but neither by any Expression or Implication pointeth at any provision designed for his Heir at Law but for the Excluding him of all Pretences hath bequeathed him 40 s. and no more that the other is to contradict his plain Intent 't is to make a new Will for him contrary to the determination which he saith he had made And accordingly the Decree was affirmed Sir Richard Dutton Plaintiff Versus Richard Howell Richard Grey and Robert Chaplain Executors of Sir John
of a Scholar and it is impossible to relate to the Rector for then he must consent to his own Deprivation for his particular Consent is mentioned and required and that is not to be expected And in this case the Consent of the Senior Fellows without that of the Rector is not sufficient But then the subsequent words are That if the Rector be deprived by the Bishop's Commissary with the Consent of the Senior Fellows he may appeal to the Bishop 'T is true the Rector hath that liberty if the Commissary do deprive him but there are no words that do abridge the Bishop's own Power The Commissary's Power is restrained by those words To have the Consent c. but the Bishop's own Power hath no such qualification It is objected That 't is unreasonable to imagine a greater Power in the Visitor over the Rector then over the Scholars But the Question is not What was fit and reasonable for the Founder to have done but to consider upon perusal of the Statutes what he hath done Suppose he doth give such an absolute Authority 't is what he had over the thing granted he might have reserved to himself a Power of Revocation or what other Power he thought fit and by the same reason he might give the like to a Visitor of his appointment and having done so it must be supposed that he had some Reasons for so doing The Rector hath a Priviledge not to be deprived without the benefit of Appeal if 't were by the Commissary The Scholars have no Appeal He might think fit to trust the Rector with his Visitor the Bishop as supposing more care would be taken by him of the Head of the Colledge then of Inferiour Members But the Query is not What Reason induced the Founder to make those Appointments He was Master of his own Charity and might qualifie it as he pleased and he hath given it under this qualification That the Bishop is made Visitor and might deprive the Rector as he hath done according to the Statutes and Constitutions of this Colledge Then 2. the sufficiency of the Cause of this Deprivation is never to be called in question nor any Inquiry to be made in Westminster-hall into the Reasons or Causes of such Deprivation if the Sentence be given by him that is the proper Visitor created so by the Founder or by the Law 'T was urged That there are in Law two sorts of Corporations aggregate consisting of many Persons such as are for Publick Government and such as are for Private Charity Those that are for Publick Government of a City Town Mystery or the like being of Publick Concern are to be governed according to the Laws of the Land and to be regulated and reformed by the Justice of Westminster-hall of these there are no private Founders and consequently no particular Visitors There are no Patrons of these they only subsist by virtue of the King's Letters Patents or Custom and Usage which supposes Letters Patents and are supported and ruled by the Methods of Law Therefore if a Corporation be made for the Publick Government of a Town or City and there is no Provision in the Charter how the Succession shall be the Law supplies the Defect of that Constitution and says it shall be by Election as Mayor Aldermen and Common-Council-men and the like and so is 1 Rolls Abridg. 513. But private and particular Corporations for Charity Founded and Endowed by private persons are subject to the particular Government of those who Erect them therefore if there be no visitor appointed in all such cases of Elemosmary Corporations the Law doth appoint the Founder and his Heirs to be Visitors They are Patrons and not to be guided by the common known Laws and Rules of the Kingdom but such Corporations are as to their own Affairs to be governed by the particular Laws and constitutions assigned them by the Founder Though some have said that the Common-Law doth not appoint any Visitation or Visitor at all yet 't is plain that it doth in defect of a particular appointment it makes the Founder Visitor and it is not at his pleasure whether there shall be a Visitor or not but if he is silent during his Life-time the right will descend to his Heirs and so is Yelv. 2 Cro. where it is admitted on all hands that the Founder is Patron and as Patron is Visitor if no particular Visitor be assigned 8. Edw. 7 8. 8 Assis ' 29.9 Hen. 6.33 1 Inst 96. so that Patronage and Visitation are necessary consequents one upon another for this Visitatorial Power was not introduced by any Canons or Constitutions Ecclesiastical it is an appointment of the Law it ariseth from the property which the Founder had in the Lands assigned to support the Charity And as he is the Author of the Charity the Law gives him and his Heirs a Visitatorial Power i.e. an Authority to inspect their Actions and regulate their Behaviour as he pleaseth For it is not fit that the Members who are indowed and that have the Charity bestowed upon them should be left to themselves but they ought to pursue the intent and designs of him that bestowed it upon them Where the Poor are not incorporated i.e. they who are to have the Charity but Trustees are appointed there is no Visitatorial Power because the interest of the Revenue is not vested in them but when they who are to enjoy the benefit of the Gift are incorporated there to prevent all perverting of the Charity there the Law doth not establish a Visitatorial Power and it being a Creature of the Founders 't is reasonable that he and his Heirs should have that Power unless it were devolved elsewhere 'T was further argued that in our Old Books deprived by Patron and deprived by Visitor are all one for this Authority to visit is a benefit that naturally springs out of the Foundation and it was in his power if he pleased to transfer it to another and where he hath done so the other will have the same right and Authority as the Founder had There 's no manner of difference between an Hospital and a College except only in degree An Hospital is for those that are poor and mean or Sick c. a College is for another sort of persons and to another intent the former is to maintain and support them this is to Educate them in Learning that have not otherwise wherewithal to do it But still it is much within the same reason of that of an Hospital and if in an Hospital the Master and Poor are incorporated 't is a College having a common Seal to act by though it bears not that name because it is of an inferiour degree and in both cases there must be a Visitor as both are Elemosinary A Visitor being then of necessity created by the Law as 8 Edw. 3.69 70. Every Hospital is visitable if lay by the Patron if Spiritual by the Ordinary he is to Judge
and he may Expel and as it is 8 Assis ' 29 30. he may deprive the only Query is if he were Visitor at this time for it hath been and must be agreed on all hands that Quatenus Visitor he might deprive if he be a Visitor as Ordinary there lieth an Appeal from his deprivation but if as Patron there 's none and then that deprivation whether right or not must stand As to the Objection that 't is not the Sentence of a Court and therefore not Conclusive 't is not material whether it be a Court or not but the Query is if he had jurisdiction and conusance of the Person and thing and if he had then his sentence holds and where the Founder hath not thought fit to direct an Appeal no appeal lies nay not to the Common-Law Courts the Founder having put all under the Judgment of the Visitor it must continue so He might have ordered it that the Rector should continue only during the pleasure of the Visitor but now he hath left it to his wisdom according to the Statutes He is a Judge not only in particular by appointment but as he is Constituted a Visitor in general then in pleading of a Sentence of deprivation there is no necessity of shewing the cause the cause is not traversable even in a Visitation so is Rastal 1.11 Hen. 7.27 7 Rep. Kenne's Case 9 Edw. 4.24 Suppose this Rectory had been a sole Corporation and not part of a Corporation aggregate as it is Consisting of Rector and Scholars and Dr. Bury had brought an assize and this deprivation had been pleaded it had been good to have said that the Visitor certis de Causis ipsum adinde moventibus had deprived him every thing that is traversable must be expressed with certainty but the cause need not be so in this Case Now 't is strange that pleading a Sentence without a Cause should be good and the finding of a Sentence in like manner in a special verdict should not be good If in Pleading it be not traversable 't is the strongest Argument that the Cause is not to be inquired into the having no Appeal doth not lessen the validity of the Sentence it doth only shew the Rector's place not to be so certain and durable as in other cases they are where Appeals are allowed The Case of Caudrys in the High Commission Court is as strong a Sentence of deprivation no Appeals and the Sentence found and no cause shewn yet held good 't is no Answer to say that that was by the Ecclesiastical Law how is it the Ecclesiastical Law that a Man shall be concluded by one Sentence without Appeal no it was because 't was by a Court that had Jur ' and the Sentence was not the weaker or the cause of it more inquirable because there 's no Appeal 'T was by the Ecclesiastical Constitution that the Commissioners had that Power but that was established by the Law of the Land and so is the Visitatorial Power the one Authority is as much derived from the Law as the other Bird and Smith's Case in Moore 's Rep. deprivation for not conforming to the Canons held good in like manner As to the Case of Coueney in Dyer 209. and that in Bagges's Case 11 Rep. 99. they are the same as to this matter though in Two Books an assize because no Appeal he quotes Books for it but upon a perusal they will not warrant the distinction for the party is as much concluded in the one Case as in the other 't is reasonable to suspect that Case not to be Law because that is impracticable which it is brought to prove The Head of a College cannot maintain an Assize for his Office of Headship He hath not such an Estate as will maintain that writ therefore to give that instance against us is hard the Rector hath no such sole Sezin the whole body of the College have an interest therein He hath no Title to the Money in his own Right till by consent they are distributed and after such distribution 't is not the Rector's Money but Dr. Bury's He is the only visible head of the Body in deed but has no single right In Appleford's Case the like Argument was drawn from this Case for a Mandamus and insisted that he might have an assize but said by the Lord Hales that that was impossible and in truth there 's no difference between this Case and that of a Mandamus there was a return that he was removed pro crimine enormi and Appealed to the Bishop of Winton who confirmed the amotion and the particular cause was not at all returned and held good because there was a local Visitor who had given a Sentence and all parties were concluded by it the same being done by the Power of that Government which the Founder had thought sit to put them under Now 't was argued from hence That this was an express Case If the Cause of the Deprivation be examinable in the Courts of Common Law why not upon a Mandamus as well as in an Ejectment The Lord Hales in that Case of Appleford took it for clear Law That the Sentence was as binding as a Judgment in an Assize He is made a Judge and his Person particularly designed by the Founder but he hath his Authority from the Law and since the Founder hath trusted the Matter to his Discretion 't is not to be suspected that he hath done or will do otherwise than right Then in the next place 't was argued That there doth not appear any Injustice in the Sentence and consequently it ought to be presumed Just Credence is to be given to a Person that exerciseth Judicial Power if he keep within his Jurisdiction The Law hath respect not only to Courts of Record and Judicial Proceedings in them but even to all other Proceedings where the Person that gives his Judgment or Sentence hath a Judicial Authority and here 's no Fault found in the Sentence the Jury have not so much as found the Matter and Ground of it to be untrue in Fact or insufficient in Law Then 't was urg'd That the Cause of Deprivation here was just it being for Contumacy If the Bishop had power to visit in June as he had and was hindred by their shutting the Doors whereupon he went away without doing any thing and came again in July when he held his Visitation and they behaved themselves Contumaciously and refused to submit to his Authority this was contra officii sui debitum 't is reasonable that both Head and Members should submit to the Visitor Contumacy is a good Cause of Deprivation and upon good reason because it hinders an Inquiry into all other Causes 'T was held so in Bird and Smith's Case and in Allen and Nash's Case quia fuit refractarius Now tho' Contumacy be not one of the Causes mentioned in the Statutes yet 't was certainly contrary to their Duty turning their Backs upon the
Visitor not appearing upon Summons refusing to be examined was an Offence and contrary to what the Statutes require He is to inspect the state of the Colledge and each Member's particular behaviour and now when the Visitor comes to make such an Inquisition and the Head or the Members withdraw themselves and will not appear to be examined if this be not a good Cause of Deprivation nothing can be for that nothing else can ever be inquired into As for that Statute which refers to the Causes for which a Rector may be deprived it doth not relate to a Deprivation in a Visitation but shews the manner how the Colledge is to proceed if he be guilty of such Offences they may complain at any time to the Visitor if he wasts the Revenues or behave himself scandalously and upon request will not resign and they may Article against him out of a Visitation but when he comes to execute his Power in his quinquennial Visitation he is not confined to proceed only upon the Information of the Fellows but is to inquire into all the Affairs of the Colledge and may proceed to deprivation as he sees Cause Now Contumacy is a causa of a Forfeiture of his Office which is subject to the power of the Visitor by the original Rules of the Foundation and to evade or contumaciously to refuse or deny a Submission to that Power is an Offence against the Duty of his Place and consequently a just Cause of Deprivation so that upon the whole Matter 't was inferred and urged that the Bishop hath a Visitatorial Power vested in him to deprive the Rector without consent of the four Senior Fellows And 2. that the Justice of the Sentence is not examinable in Westminster-hall And 3. that if it were and the Cause necessary to be shewn here was a good one an affronting the very Power of Visiting and fetting up for Independency contrary to the Will of the Founder and therefore it was prayed that the Judgment should be reversed On the other side 't was argued by the Counsel with the Judgment That this Sentence was void that 't was a meer Nullity that this proceeding had no Authority to warrant it and that it being done without Authority 't is as if done by a meer Stranger and whether it be such an Act or not is examinable at Law for that the Power of a Visitor must be considered as a meer Authority or a Trust and it is one or rather both and then either way 't is examinable for every Authority or Trust hath or ought to have some Foundation to warrant it and if that Foundation which warrants it hath limited any Rules or Directions by which it is to be executed then those Directions ought to be pursued and if they are not 't is no Execution of the Authority given or Trust reposed and if not 't is a void Act a meer Nullity and consequently 't is that of which every Man may take notice and advantage Then 't was said That it must be agreed that of a void thing all Persons may take advantage and contest it in a Collateral Action and that altho' it have the form and semblance of a Judicial Proceeding and for this was cited the Case of the Marshalsea's 10 Rep. 76. as a full Authority the Resolution was That when a Court hath no Jurisdiction of a Cause there all the proceeding is coram non judice and Actions lye against any Person pretending to do an Act by colour of such Precept or Process without any regard to its being a Precept or Process and therefore the Rule qui jussu judicis aliquid fecerit non videtur dolo malo fecisse quia parere necesse est will not hold where there is no judex for 't is not of necessity to obey him who is not Judge of the Cause and therefore the Rule on the other side is true judicium a non suo judice datum nullius est momenti and so was it held in the Case of Bowser and Collins 22 Edw. 4.33 per Pigot and 19 Edw. 4.8 And therefore if the Court of Common Bench held Plea of an Appeal of Felony 't is all void but it must be owned that the meer erroneous procedure of a Court which hath a General Jurisdiction of the Subject Matter is not examinable in a Collateral Action whether upon true Grounds or not and yet if it be a limited Jurisdiction and those limits are not observed even that is coram non judice and holds with respect to Courts held by Authority of Law which are much stronger then the Cases of Power created or given by a private Person A Sheriff is bound by Law to hold his turn within a Month after Michaelmas and he holds it after the Month and takes a Presentment at that time if that be removed into the King's Bench the Party shall not answer it but be discharged because the Presentment was void coram non judice for that the Sheriff at that time had no Authority and yet in that Case his Authority and Jurisdiction extended to the Person and Thing The same Law for a Leet unless Custom warrants the contrary and then that Custom must be pursued The Commissioners of Sewers have a limited Authority and if the number of Persons or other Requisites mentioned in their Commission be not pursued what they do which exceeds it is void and yet they have a kind of Legislative Authority so is it in Sir Henry Mildmay's Case 2 Cro. 336. and there they had an Authority both of Thing and Person but did not observe the Rules prescribed in the Gift of that Authority according to the 23 Hen. 8. cap. 5. and no reason could or can be given for that Resolution but that it was a particular limited Authority And then to apply this to the present Case the Sentence in question can no more aggrieve the Defendant then an Order pronounced or made by a non Judex if it be not agreeable to the Power given by the Statutes and this appears further from Davis's Rep. 46. where the same Distinction is allowed Nay in some Cases the Award of a wrong Process is void as if by a Steward of a Mannor Court that a Capias should issue where the same doth not lye but only an Attachment Turville and Tipper's Case Latch 223. A Court of Pypowders hath Jurisdiction of an Action of the Case yet if it holds Plea of Case for Slander 't is all void tho' the words were spoken within the Boundaries of the Fair because the Jurisdiction is limited so that if the Thing the Time the Person or the Process be not regarded according to the Authority given 't is all void and an Advantage may be taken of it by any Body where the Plaintiff Claims or makes his Demand by colour of such Act. 'T was further argued That the Reason given in that Case of Latch is because the Custom which gave him his Authority gave him
command them in Ireland to do Execution there St. John vers Cummin Yelv. 118 119. 4 Inst 72. If Writ be abated in C. B. and Error brought in B. R. and the Judgment be reversed shall proceed in B. R. and 1 Rolls 774. to the same effect Green vers Cole 2 Saund. 256. The Judges Commissioners gave the new Judgment 'T is true in Dyer 343. the opinion was that he was only restored to his Action and then Writs of Error were not so frequent The Judgment may be erroneous for the Defendant and yet no reason to give a Judgment for the Plaintiff as in Slocomb's Case 1 Cro. 442. the Court gave a new Judgment for the Defendant therefore it properly belongs to the Court which doth examine the Error to give the new Judgment the Record is removed as Fitzh Nat. Brev. 18 19. on false Judgment in ancient Demesne v. 38 Hen. 6.30 and Griffin's Case in Error on a quod ei deforceat in 2 Saunders 29 30. new Judgment given here In the Case of Robinson and Wolley in 3 Keeble 821. Ejectment Special Verdict Judgment reversed in the Exchequer Chamber and they could never get Judgment here the Court of Exchequer Chamber not having given it and in the principal Case after several Motions in the Court of King's Bench the Remittitur not being entred there a Motion was made in Parliament upon this Matter and a new Judgment was added to the Reversal that the Plaintiff should recover c. Dr. William Oldis Plaintiff Versus Charles Donmille Defendant WRit of Error to Reverse a Judgment in the Court of Exchequer affirmed upon a Writ of Error before the Lord Chancellor c. The Case upon the Record was thus Donmille declares in the Exchequer in placito transgr ' contempt ' c. for a Prosecution contra regiam prohibit ' and sets forth Magna Charta that nullus liber homo c. that the Plaintiff is a Freeman of this Kingdom and ought to enjoy the free Customs thereof c. that the Defendant not being ignorant of the Premisses but designing to vex and aggrieve the Plaintiff did in Curia militari Henrici Ducis Norfolk ' coram ipso Henrico Com' Mareschal ' Exhibit certain Articles against the Plaintiff c. that Sir Henry St. George Clarencieux King at Arms was and is King at Arms for the Southern Eastern and Western Parts of the Kingdom viz. from the River of Trent versus Austrum and that the Conusance Correction and Disposition of Arms and Coats of Arms and ordering of Funeral Pomps time out of mind did belong to him within that Province and that the Plaintiff having notice thereof did without any Licence in that behalf had and obtained paint and cause to be painted Arms and Escutcheons and caused them to be fixed to Herses that he provided and lent Velvet Palls for Funerals that he painted divers Arms for one Berkstead who had no right to their use at the Funeral and did lend a Pall for that Funeral and paint Arms for Elizabeth Godfrey and marshalled the Funeral and the like for Sprignall and that he had publickly hanging out at his Balcony Escutcheons painted and Coaches and Herses and other Publick Processions of Funerals to entice People to come to his House and Shop for Arms c. That the Defendant compelled the Plaintiff to appear and answer the Premisses c. The Defendant in propria persona sua venit dicit That the Court of the Constable and Marshal of England is an ancient Court time out of mind and accustomed to be held before the Constable of England and the Earl Marshal of England for the time being or before the Constable only when the Office of Earl Marshal is vacant or before the Earl Marshal only when the Office of Constable is vacant which Court hath time out of mind had Conusance of all Pleas and Causes concerning Arms Escutcheons Genealogies and Funerals within this Realm and that no other Person hath ever intermeddled in those Pleas or Affairs nor had or claimed Jurisdiction thereof and that the Suit complained of by the Plaintiff was prosecuted in the said ancient Court of and for Causes concerning Arms Escutcheons and Funerals That by the 13 Rich. 2. 't was enacted that if any Person should complain of any Plea begun before the Constable and Marshal which might be tried by the Common Law he should have a Privy Seal without difficulty to be directed to the Constable and Marshal to Supersede that Plea till discussed by the King's Counsel if it belongs to that Court or to the Common Law prout per Statut ' ill ' apparet and that the said Court time out of mind hath been tant ' honoris celsitudinis that it was never prohibited from holding any Pleas in the same Court aliter vel alio modo quam juxta formam Statut ' praed ' Et hoc parat ' est verificare unde non intendit quod Curia hic placitum praed ' ulterius cognoscere velit aut debeat c. The Plaintiff demurs and the Defendant joyns From the Exchequer Court this was adjourned propter difficultatem into the Exchequer Chamber and afterwards by advice of the Judges there the Court gave Judgment for the Plaintiff which was affirmed by the Chancellor and Treasurer c. And now it was argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was erroneous and fit to be reversed And first to maintain the Court as set forth 't was insisted on 1. That when there was a Constable and Marshal the Marshal had equal Power of Judicature with the Constable as each Judge hath in other Courts 2. That the Constable had in that Court power of Judicature alone when there was no Marshal And 3. That the Marshal had the like when there was no Constable That they had both equal power of Judicature appeared by all their Proceedings by their Libels or Bills in the Case of John Keightley Esq against Stephen Scroop The Libel is In the Name of God Amen Before you my Lords the Constable and Marshal of England in your Court of Chivalry and prays that the said Stephen by their Sentence definitive may be punisht 1 pars Pat. 2 Hen. 4. m. 7. And the same Stephen libelled against Keightley to the thrice Honourable Lords the Constable and Marshal of England So the Libels were directed to both and both sate judicially The same appears by the Sentence or Judgment given in that Court Bulmer libelled against Bertram Vsau coram Constabulario Mareschallo qui duellum inter partes allocaverunt assignaverunt locum tempus Rot. Vascor ' 9 H. 4. m. 14. It doth likewise appear to be so by the Appeals from their Judgments to the King they are both sent to to return the Rolls of their Judgments Rot. Claus 20 Edw. 1. m. 4. In the Appeal brought by Sir Robert Grovesnor against Richard Scroop 't is upon
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-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
Disorder and most Proceedings informal and in the English Tongue in such a mean Court where are few Precedents to guide them where the Parties themselves are not empowered to draw up their own Proceedings as here above but the whole is left to the Steward who is a Stranger to the Person concerned and therefore 't is hard and unreasonable that Mens Purchases should be prejudiced by the Ignorance Unskilfulness or Dishonesty of a Steward or his Clerks that there is scarce one Customary Recovery in England which is exactly agreeable to the Rules of the Common Law that the questioning of this may in consequence endanger multitudes of Titles which have been honestly purchased especially since there can be no aid from the Statutes of Jeofailes for they do not extend to Courts Baron 'T was further urged That there was no Precedent to enforce Lords of Mannors to do as this Bill desired that the Lords of Mannors are the ultimate Judges of the Regularity or Errours in such Proceedings that there 's no Equity in the Prayer of this Plaintiff that if the Lord had received such Petition and were about to proceed to the Reversal of such Recovery Equity ought then to interpose and quiet the Possession under those Recoveries That Chancery ought rather to supply a Defect in a Common Conveyance if any shall happen and decree the Execution of what each Party meant and intended by it much rather than to assist the annulling of a Solemn Agreement executed according to Usage tho' not strictly conformable to the Rules of Law For which Reasons it was prayed that that Appeal might be dismissed and the Dismission below confirmed and ' was accordingly adjudged so The Countess of Radnor versus Vandebendy al. APpeal from a Decree of Dismission in Chancery the Case was to this effect The Earl of Warwick upon Marriage of his Son settles part of his Estate upon his Lady for a Jointure and after failure of Issue Male limits a Term for 99 years to Trustees to be disposed of by the Earl either by Deed or Will And for want of such Appointment then in trust for the next in Remainder and then limited the whole Estate in such manner as that a third part of a Moiety thereof came to the Lord Bodmyn the Appellants late Husband in Tail general with the Reversion in Fee to the Earl and his Heirs The Son died without Issue the Earl by his Will appoints the Lands to his Countess for so many years of the Term as she should live and to her Executors for one year after her Death and charges the Term with several Annuities some of which remain in being The Respondent's Father purchased part of these Lands from the Lord Bodmyn after his Marriage and had the Term assigned to him The Lord Bodmyn dyes the Appellant brings her Writ of Dower in C. B. the Respondent pleads the Term for 99 years and she Exhibits her Bill praying that she may after the discharge of the Earls Incumbrances have the benefit of the Trust as to a third of the Profits of this Term and upon hearing the Cause the Lord Chancellor saw no cause to give Relief but dismissed her Bill There were many Particulars in the Case and many Proceedings before both in Law and Equity but this was the whole Case as to the general Question Whether a Tenant in Dower shall have the benefit of the Trust of a Term which is ordered to attend the Inheritance against a Purchaser after the Marriage The Lord Chancellor Jeffryes had been of opinion with the Appellant but the Cause coming to be heard again a Dismission was decreed and now it was argued against the Decree on behalf of the Appellant that Equity did entitle her to the Thirds of this Term that a Tenant by the Curtesie is intitled to it and br the same reason a Tenant in Dower that the Term created by the Settlement was to attend all the Estates limited by that Settlement and in Trust for such Persons as should claim under it which the Appellant doth as well as the Respondents that it was in consequence to attend all the particular Estates carved or derived from the others the Term was never in its creation designed for this purpose to prevent or protect against Dower that in the Case of Snell and Clay the Tenant in Dower had it in Chancery against the Heir at Law and that this was the same Case a Purchaser with notice of that Incumbrance of Dower the Vendor being then married this was an Estate of which the Husband was full Owner and received the whole Profits that in proportion 't is as much a Trust for her for her Thirds during Life as it is a Trust for the Respondents for the Inheritance she claims under her Husband who had the benefit of the whole Trust If there be a Mortgage by an Ancecestor upon the whole Eqinty will permit her to redeem paying her proportion according to the value of her Thirds for Life and the same reason holds in this Case and there 's no Precedent in Equity to the contrary And many Precedents in favour of Tenant in Dower were cited and much Reason well urged from parallel Cases to entitle the Lady to her proportion of the Trust of this Term. On the other side 'T was said that Dower is an Interest or Right at the Common Law only that no Title can be maintained to have Dower but where the Common Law gives it and that is only to have the Thirds of that which the Husband was seized of and if a Term were in being no Feme was ever let in but after the determination of that Term that this is the first pretence set up for a Dower in Equity the Right is only to the Thirds of the Rent reserved upon any Term and 't is a new thing to affirm that there shall be one sort of Dower at Law and another in Chancery that 't is and always hath been the common received Opinion of Westminster-hall and of all Conveyancers that a Term or Statute prevents Dower that if a Purchaser can procure it the same becomes his Defence that this is what the Wisdom of our Forefathers thought fit to use and tho' some Mens reasoning may render it in appearance as absurd yet the consequence of an alteration will be much more dangerous than the continuance of the old Rules that tho' this Lady's Case be unfortunate yet the multitude of Purchasors who have bought upon full consideration and have been advised and still conceive themselves safe under this Law will be more unfortunate if the Law be broken Then ' was argued That there could be no Equity in this Case for it must be not only from the Party Appellant but also against the Respondent and that 't is not because he bought the whole Her Portion her Quality and her being a Wife create no Equity as to the Purchaser 't would perhaps be prevalent against an Heir but
without the assent of the Dominion Superiour And 2. Judgments or Decrees might be there made or given to the disadvantage or of lessening that Superiority which cannot be reasonable or to make the Superiority to be only in the King not in the Crown of England as King Jac. 1. would have had it and consulted Selden upon the point Now though the Writ of Error be only mentioned yet the same reason holds to both and the true cause why we have not so many Ancient precedents of Equity Cases as of Law ones is for that in Ancient time the Equity Courts were not so high meddled with few matters and in a Summary way but since their Authority is so advanced and their Jurisdiction so enlarged that most questions of property are become determinable there and almost every suit begins or ends with them to the entire subversion of the Old Common-Law It is and must now be reasonable to have the Examination of their final Sentences in the Parliament of England as well as of the other Suppose non-residence in Ireland should be pretended a Forfeiture of the Estate to the next remainder Man or to the King Can it be safe for to intrust them with a conclusive Opinion in this matter When Calais was in our hands Writs of Error lay thither 21 Hen. 7. fol. 3. As to the pretence that the orders of this House cannot be executed there 't is very vain for if the King's Bench Command their Judgments to be executed there this House may order theirs and in like manner as they do to the Chancery here In 15 Rich. 2. numb 17. in the Abbot of St. Osithe's Case the Lords here made an Order and charged the Lord Chancellor that he see it performed and this hath been constant practice It hath been imagined That the Jurisdiction of this House in matters of this kind is dated from the 21 Jac. 1. as to the proceedings in Chancery but that is not now to be disputed for the Commons in Parliament Assembled did agree it to be the Right of this House in the Case of Skinner and the East-India Company and in the Book about it supposed to be written by that Noble Lord the Lord Hollis 105. 't is said that where the King 's Sovereigntydoth not reach the Jurisdiction of this House cannot the contrary is implied that where the King of England's Sovereignty doth extend the Jurisdiction of this House doth so too and no Man will affirm That Ireland is out of or beyond the limits of the Sovereignty of the English Crown And as to the exercise of this Judicature by the Lords here nothing can be stronger for it then the 1 Hen. 4. numb 79. So 't is in the Record though in Cotton's Abridg 't is 80. the Commons declare that all Judgments Appertain to the King and Lords and not to them Skinner's Case 199 200. 4 Inst 349 353 354. It was further argued That Protection commands a due Subjection and that these people who insisted upon this independency had forgot the English Treasure and Bloud which had been spent for their preservation That they are part of England and subject to its Laws appears from the common Case of an incumbency here being made void by acceptance of a Bishoprick in that Colony Besides that in Ancient time the Arch-Bishop of Canterbury was Primate of Ireland and had the Confirmation and Consecration of Bishops there Cambden's Britt pag. 735. and 765. 4 Inst 360. then 't was urged that the Question now was whether it were a Dominion inferiour or equal to and independant upon the Realm of England That the constant practice had been for the Lords here to examine the Decrees in their Court of Chancery that the refusing of this Appeal would shake all those Cases thus determined that every Appeal-here from their Equity Sentences which have been very many was an Argument against the Order of their Lords and for the receiving of this Appeal here That this thing hath been acknowledged even by the Rebels there for in Sir John Temple's History of the first Progress of the Irish Rebellion written 1641. pag. 141. amongst the several propositions made by the Irish then in a general Rebellion these two are mentioned 1. That by several Acts of Parliament to be respectively passed in England and Ireland it should be declared that the Parliament of Ireland had no subordination to the Parliament of England but should have supreme Jurisdiction in that Kingdom as Absolute as the Parliament of England here hath 2. That the Act of 10 Hen. 7. called Poyning's Act and all other Acts expounding or explaining that Law should be Repealed both which with their other dangerous propositions were justly rejected however it shews their Opinion that at that time the Law was or was taken and deemed to be against them in this point and there is as much reason for keeping the final Judicature here as there is for maintaining the Superiority and Obligatory Power over them in the legislature 'T was farther urged That the with holding the Irish Lords from having the like Jurisdiction in their Parliament as the Lords in England have in Judging upon Appeals and Writs of Error was absolutely necessary for the preserving of the Possessions of the English in Ireland for those of that Country must be suppos'd to incline to their own interest and cannot be suppos'd so much inclined to love and affect the English amongst them And that this Power of Judging here is Co-eval with the very Constitution of the Government 'T was further urged That their Precedents returned did or concern the point in Question except the two or three Cases in 1661 and 1662. and two Appeals lately in 1695. that their Case of the Prior of Lauthony in 8 Hen. 6. Prynnes Animadversions 313 314 was against them the Prior having removed a Judgment in the King 's Bench in Ireland into the Parliament there which affirmed it did bring a Writ of Error in the King 's Bench in England and they refused to meddle with it the reason was because the Writ of Error before the Lords there did not lie and that it ought to have come hither immediately and all the rest of their Quotations in their Printed Case either prove nothing at all or too much for they are against the allowance of Writs of Error in the King 's Bench in England and against the Legislature of England's being able to oblige the people of Ireland both which have been approved by constant practice and therefore it was prayed that the Appeal here might be allowed and the Order of the Irish Lords might be vacated On the other side it was argued from 1 Inst 141. Prynne's Animadversions 286. and 4 Inst 12. that their Parliaments had the same Authority there in respect of making Laws for that Country as the Parliaments have for England that they have ever since 10 Hen. 7. Re-enacted there such subsequent Acts of England as they thought
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
Deposition Literature Profession and the like It 's enough if so much be alledged that they may write to know whether the Fact be so or no and upon a Return thereof that 't is so they can give Judgment Now if his Grace my Lord Archbishop in this Case upon Examination had returned that this Presentee was in Literatura minus sufficiens as undoubtedly he would and so the Plaintiff thought otherwise he would have joyned Issue and so ea occasione inhabilis then unquestionably Judgment must have been for the Plaintiff in Error for default of Learning is a good cause of Refusal and must be agreed to be so The Rule laid down by my Lord Anderson 3 Leon. 200. is That in Matters triable by our Law all things issuable ought to be specially alledged in order to have a convenient Trial but in Matters Spiritual the Law is otherwise because there 's no peril in the Trial and therefore if certain enough to ground a Certificate it 's sufficient My Lord Hob. 296. in Slade and Drake's Case saith That in pleading a Divorce you must shew before whom it was 11 Hen. 7.27 but you need not shew all the Proceedings as you should of a Recovery at Common Law and the Reason why you must shew before whom is only that it may be known who is to try and certifie it In Burdell's Case 18 Edw. 4.29 30. 't is clear that in all Spiritual Acts triable by the Spiritual Law it is necessary to plead no more than what may give the Court ground to write to the proper Ecclesiastical Officer and to judge by his Certificate Now here is ground enough in this Case for the Archbishop to examine this ignorant Person for so he must be taken to be for so he is found by one Ordinary and he refuses to be examined by the Archbishop he is pleaded not to have Learning enough to capacitate him for a Cure of Souls and that by one whom the Law hath constituted his Judge 'T is true this is traversable and triable by the Archbishop but all those Instances of his Insufficiency that were taken in the Bishops Court would be Evidences of the same before the Archbishop proceeding in an Ecclesiastical manner tho' not so proper tho' not possible to be set forth in the Temporal Court this is not a General Return of a Person inhabilis which might occasion an Enquiry into all sort of Disabilities but a Special Plea of inhabilis quia insufficienter Literatus and therefore no further Enquiry is necessary then into the Learning of the Party as Capacitates him for a Rector It was in the third place argued from the Presidents of Pleading in this Case and other Cases of Pleading upon like Occasions and those both Ancient and Modern 40 Edw. 3.25 In a Quare Impedit as this is the Bishop pleads as here That he Examined the Clerk presented and found upon Examination que il ne fuit sufficiens Letter'd and thereupon alledges Notice to the Patron per lapsum temporis he justifies his own Presentation Upon this there 's no dispute but that thus far it was well pleaded but the only doubt was whether the words and so disabled should be added to the Issue and they were ordered to be part of the Issue in that Case and so they ought to be in this Case and so they are ea ratione inhabilis this Case is exactly parallel to that in question and upon this Plea there was Issue joyned and the Trial was directed to be by the Guardian of the Spiritualities vacante Sede Cantuariensi nothing can be offered against this only that 't is Ancient and the Law is changed but by what Authority is hard to know there is no Act of the Legislature to alter it much hath been done to help against Niceties in Pleading nothing to require more And Bro. Quare Impedit 168. they were compelled to joyn Issue able or not able in that respect 39 Edw. 3.1 2. The Earl of Arundel versus the Bishop of Chester says the Book tho' it appears plainly to be a mis-print from the name of the Church and the Trial per pais and the Antiquity of the Bishoprick it self it must be the same that in the Abridgments is called the Earl of Arundel versus the Bishop of Exeter the Bishop pleads as here That he examined the Clerk presented and found him persona inhabilis to have a Benefice in the Church and Issue is joyned upon that which is stronger then ours and a Trial by Jury is directed out of the County of Cornwall because the Clerk was dead Here are two Cases in which all the different Trials are taken that can be had by the Guardian where the Presentee was living and by Jury when dead because he could not be examined And in both these Cases Issue is taken upon this Plea and that in great Cases and after long Debate And according to the Lord Coke in this Reign the Law was pure and uncorrupt and flourished Then were urged Modern Precedents Mich. 15 16 Eliz. Rot. 1941. Molineux versus Archiepiscopar ' Ebor ' in a Quare Impedit in which the Plea of the Archbishop is the same in totidem verbis as here Persona in Literatura minus sufficiens seu habilis ad habend ' praed ' Ecclesiam and there is no Exception taken to the Plea but only Issue joyned upon notice or no notice before the Lord Chief Justice Dyer Another Precedent there is Hill 6 Eliz. Rot. 646. Bodenham versus Episcopor ' Hereford ' there is the same Plea in Bar as here That the Person presented was Persona in Literatura minus sufficiens seu habilis ad habend ' aliquod Beneficium Sanctae Ecclesiae and then avers notice to the Patron and no Exception taken to the Plea but Issue upon notice Pasch 6 Eliz. Rot. 714. Paschall versus Episcop ' Lond ' Quare Impedit the Ordinary pleads an Examination de habilitate honestate doctrina ejus pro eo quod idem Episcopus invenit praed ' Christopherum fore criminosum de non sana Doctrina ideo recusavit and notice and even to that general Plea there 's no Demurrer but Issue upon notice 'T is no Answer that here was no Solemn Judgment upon this very Point for it doth rather inforce the Authority of the Precedents it argues that the Law was taken to be so clear for the validity of this Plea that no Lawyer would venture upon a Demurrer but rather would trust to a Jury upon the Evidence of notice it argues it so constant a Course and Method of Pleading in these Cases that none was so hardy as to dispute it 38 Edw. 3.2 Perjurius was alledged by the Bishop in the Presentee and held to be well enough but nothing of manner time and place nor any Conviction of it mentioned and yet this was admitted a good Plea 2 Rolls Abridg. Presentment 356. and so says Rolls it
shall be tho' in a Suit between the Ordinary himself and another Dyer 293. 't is cited Bro. Quare Impedit 170. Justice Rhodes 3 Leon. 100. vouched a Case in 30 Edw. 1. out of a Manuscript of the Lord Catlins wherein upon a Quare non Admisit the Defendant pleaded that the Presentee was Schismaticus Adulter and the Court commanded that he should hold to one or other of them for which he said Adulter from hence 't is manifest that the Court did not dislike the Plea for the generality but the doubleness And then it was said That after all these Presidents on this side and many others which might be Cited of the like generality in other cases 't will be difficult to shew one single Instance or Case in which this matter of general defect of Learning was ever pleaded otherwise or any one Judgment against any Bishop whatever upon such a Plea for tho' in some Cases which they say are parallel and similar tho' in truth they are not as Criminosus and Schismaticus hath been adjudged too general yet this Plea of Minima in Literatura sufficiens ac ea ratione incapax as it has always been used without alteration of words so has it never yet been excepted against and in these Presidents of Edw. 3. before cited hath been thought good and Issue joyned thereupon This was the ancient form of Pleading and as all those ancient Pleas were founded upon Reason being such as the Subject Matter is capable of In the Case of a Coroner it 's a good Cause to remove him quia fuit minime idoneus ad exequendum officium istud and no charge of any particular insufficiency assigned Fitzh Nat. Brev. 163. and there is no question but that 't would be a good Cause and sufficiently certain in a Scire Facias to repeal vacate or cancel Letters Patents for an Office in the Law to say in Legibus hujus Regnt Angliae minus sufficient ' instructus without assigning any particular Case or Statute that a Man blundered at or was ignorant in Suppose an Office in the Law to which the King or a private Person hath the Nomination and the Court refuses to admit a Man so named and an Action brought for that Refusal c. would it not be a good Plea to say the Party was minus sufficiens in Scientia Legum ea Ratione inhabilis and particular Instances are Evidences This is in the Negative like a non fuit dampnificatus and there you never need to shew how unless 't were a particular Incumbrance at the time of the Contract otherwise 't is always a good Plea In Non Compos 't is never shewn in particular wherein or what Feats of Frenzy Non compos implies that he had a general Defect disabling him at that time to do an Act obligatory and valid and that resembles this for you need not shew wherein but the Particulars are Evidence The Reason of the thing proves the Convenience and Solidity of the distinction between Pleading a Negative and Affirmative For instance in this Case the Negative pleaded implies an entire denial of sufficient Learning to qualifie him for a Cure of Souls and that justifies the Ordinary and our Law Books are full of this Distinction Mode and other Circumstances of Quality Time and Place are requisite in Affirmative Pleas none of which are necessary in Negatives There might be cited infinite numbers of Cases to that purpose as Mauser's Case 2 Rep. 4. Broughton's Case 5 Rep. 24. Aston and Hill 3 Cro. 253. Hutchinson versus Lowson 3 Cro. 393. Wild and Dowse Latch 159. And as the Foundation of all those is the 40 Edw. 3.30 which is the ground of all these and many more subsequent Authorities to the like effect But besides there 's one modern Case 't is Church versus Brunswick Sid. 334. Bond to pay from time to time a Moiety of all such Moneys as from time to time he should receive and payment of a Moiety generally without shewing the particulars in certain was held a good Plea and the reason of that Judgment maintains the Rule now contended for which was because 't is of what he should receive from time to time otherwise if those words had been omitted because in that Case there would be a stuffing of the Rolls with a multiplicity of Particulars and the same Reason holds in the Case at Bar. Then 't is considerable and deserving of a Thought That if Learning be requisite to an Office Temporal for a Slander in which an Action lies there these very words would bear an Action As to say of a Judge or the like the very words here mentioned with reference to his Office 't would be deemed Scandalous and Actionable Now our Law will not allow uncertain doubtful and ambiguous words to be so Even in Affirmatives our Law allows of general Pleading where Particulars would be many As in Bond for performance of Covenants upon an Apprentices Indenture for finding him Meat Drink Washing Lodging and other Necessaries held that invenit Meat Drink Washing Lodging alias res nocessarias is a good Plea tho' intirely uncertain what or how much and the Reason is not only because 't is in the words of the Covenant for that Reason doth not always hold for many times you must shew how and are forced to vary from the words of the Covenant in the Breach as in case of quiet Enjoyment Breach must alledge how and by whom and under what Title the Man was disturbed but there 's another Reason because the Particulars would be many Cryps versus Sir Henry Baynton 3 Bulstrode 31. Case sur assumpsit That J. S. being a Friend of the Defendants and coming to the Plaintiffs House he fell sick the Defendant in consideration that the Plaintiff would provide for him such Necessaries as he should want he would bene fideliter solvere proinde The Plaintiff shews that he lay there two Months that the Plaintiff provided him Necessaries amounting in value to c. and held good without shewing the Particulars to avoid a multiplicity of Reckonings so 't is for a Surgeons or Apothecary's Cure Another Rule in Pleading there is That a Certainty or a Generality in Pleading shall be required according to the nature of the Subject Matter pleaded In pleading of Breach of a Statute Law it 's enough to use the Negative of the words of such Statute as it is in Case of a Covenant and by the same reason in this Case where a Statute says the Bishop may refuse propter defectum Scientiae it 's enough to say in Literatura minus sufficiens especially when 't is added ac perinde inhabilis Then were urged the Mischiefs and Inconveniences which must ensue and follow upon the Construction which they would make that this Plea is uncertain for their Reason only can be as was said before that the Court may judge if it be such a Deficiency of Learning as disables
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
Denbigh and Montgomery leaving three Daughters and Coheirs Mary Penelope and Susan Susan married Sidney Godolphin one of the present Appellants In July 1674. Mary and Penelope in consideration of 4000 l. paid to the said Mary by Richard Carew Esq and in consideration of a Marriage to be had and which was afterwards had between Penelope and the said Richard Carew by Lease and Release convey all those their two Parts of the said Lands in Denbigh Salop and Montgomery to Trustees and their Heirs to the use of Richard Carew for Life then to Penelope for Life for her Jointure then to the said Trustees and their Heirs during the Lives of Richard and Penelope to preserve contingent Remainders then to the first and other Sons of Richard and Penelope in Tail-Male successively And in default of Issue-Male to the Daughters of Richard and Penelope in Tail And in default of such Issue as to one Moiety of the said two Parts to the first and other Sons of the said Penelope by any other Husband in Tail the Remainder of all and singular the Premisses to the said Richard Carew and his Heirs for ever subject to this Proviso That if it should happen that no Issue of the said Richard upon the Body of the said Penelope should be living at the decease of the Survivor of them and the Heirs of the said Penelope should within Twelve Months after the decease of the Survivor of the said Richard and Penelope dying without Issue as aforesaid pay to the Heirs or Assigns of the said Richard Carew the Sum of 4000 l. that then the Remainder in Fee-simple so limited to the said Richard Carew and his Heirs should cease and that then and from thenceforth the Premisses should remain to the use of the right Heirs of the said Penelope for ever After this Mary intermarried with the Appellant Sir Evan Lloyd and a Partition was made of the Premisses and the same had been enjoyed accordingly ever since and Mr. Carew and his Lady levied a Fine to Mr. Godolphin and his Lady of his part who did thereupon by their Deed dated 23 Sept. 1676. covenant to levy a Fine of Mr. Carew's two Parts to such uses as he and his Lady should limit and appoint but have not yet levied the said Fine Richard Carew and Penelope his Wife to avoid all Controversies that might happen whereby the Estate of the said Richard Carew or his Heirs might be question'd or incumbred by the Heirs of Penelope and to the End to extinguish and destroy and barr all such Estate Right Title Equitable or other Interest as the said Penelope then had or her Issue and Heirs might have or claim to the same by any Power Settlement or Condition on payment of 4000 l. or otherwise to the Heirs of Richard Carew by the Heirs of the said Penelope and for the settling of the same on the said Richard Carew and his Heirs did in Michaelmas Term 1681. levy a Fine of the Share and Part allotted to them and by Deed of 10 Decemb. 1681. declare that the said Fine should be to the use of the said Richard for Life Remainder to Penelope for Life the Remainder to the said Richard Carew his Heirs and Assigns for ever And do further declare That the Fine agreed to be levied by the Appellants Sidney Godolphin and Susan his Wife by their Deed dated the 23 Sept. 1676. should be to the same uses and then direct the Trustees by the first Settlement to convey to those uses Penelope died without Issue in 1690. Richard Carew made his Will in Aug. 1691. and devised the said Lands to Sir John Carew Baronet his Brother subject to pay all his Debts and Legacies and made Sir John Carew his Executor In Decemb. 1691. Richard Carew died without Issue and Sir John Carew entred and was seized and possessed of the Premisses and paid 4855 l. for the Debts of Richard Carew Sir John Carew died and the Respondent Sir Richard Carew an Infant is his Son Heir and Executor The Appellants Mary and Susan claiming the Lands as Heirs to Penelope by virtue of the said Proviso in the first Settlement upon payment of the 4000 l. exhibited their Bill in Chancery to compel the Trustees to convey the Estate to them upon such payment Upon hearing of this Cause on Bill and Answer the Court ordered a State of the Case to be drawn which was as above and afterwards the Court assisted by the Chief Justice of the Common Pleas and Mr. Justice Rooksby seeing no Cause to relieve the Plaintiffs dismissed their Bill And now it was argued on behalf of the Appellants That such Dismission ought to be set aside and amongst other things it was insisted on in favour of the Appeal that this Proviso was not void that it was within the reason of the Contingent Limitations allowed by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk and there were quoted several Paragraphs in the Argument made by the said Lord Chancellor as that future Interests springing Trusts or Trusts Executory Remainders that are to emerge or arise upon Contingency are quite out of the Rules and Reasons of Perpetuities nay out of the Reason upon which the Policy of the Law is founded in those Cases especially if they be not of remote or long Consideration but such as by a natural and easie Interpretation will speedily wear out and so things come to the right Channel again That tho' there can be no Remainders limited after a Fee-simple yet there may be a Contingent Fee-simple arise out of the first Fee that the ultimum quod sit or the utmost Limitation of a Fee upon a Fee is not yet plainly determined that tho' it be impossible to limit a Remainder of a Fee upon a Fee yet 't is not impossible to limit a Contingent Fee upon a Fee that no Conveyance is ever to be set aside in Chancery where it can be supported by a reasonable Construction especially where 't is a Family Settlement Then these Paragraphs were applied and further urged That there could not in reason be any difference between a Contingency to happen during Life or Lives or within one year afterwards that the true reason of such Opinions which allowed them if happening within the time of the Parties lives or upon their deceases was because no Inconvenience could be apprehended thereby and the same Reason will hold to one year afterwards and the true Rule is to fix Limits and Boundaries to such Limitations when so made as that they prove Inconvenient and not otherwise That this Limitation upon this Contingency happening was the considerate Intention of the Family the Circumstances whereof required Consideration and this Settlement was the Result of it and made by good Advice That the Fine could not barr the Benefit of this Proviso for that the same never was nor ever could be in Penelope who levied the Fine As to the Pretence That if the
Appellants were relieved Richard Carew who married Penelope would have no Portion with her 'T was answered That that could not alter the Case the Agreement and Intention of the Parties being the most considerable Matter and besides Richard enjoyed the Estate during his Life without impeachment of Waste And as to the Debts 't was answered That those were no Ingredients in the Question however there would be 4000 l. paid towards it and the Personal Estate was more than enough to pay the residue For which and other Reasons 't was prayed that the Dismission might be Reversed On the other side it was insisted on with the Decree 1. That the Limitation by the Settlement in July 1674. to the Heirs of Penelope upon payment of 4000 l. by them to the Heirs of Richard Carew within Twelve Months after the death of Richard and Penelope without Issue at the time of the decease of the Survivor of them is a void Limitation the Fee-simple being before limited to Richard and his Heirs and so not capable of a further Limitation unless upon a Contingency to happen in the Life of one or more Persons in being at the time of the Settlement which is the furthest that the Judges have ever yet gone in allowing these Contingent Limitations upon a Fee and which were the Bounds set to these Limitations by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk that tho' there were such Expressions as had been read on the other side yet the Bounds set by him to these Limitations were only dependent upon Life or Lives in being and never as yet went any further And if they should be Extended and allowed to be good upon Contingencies to happen within Twelve Months after the Death of one or more Persons they may be as well allowed upon Contingencies to happen within a Thousand years by which all the Mischiefs that are the necessary Consequents of Perpetuities which have been so industriously avoided in all Ages will be let in and the Owner of a Fee-simple thus clogged would be no more capable of providing for the Necessities and Accidents of his Family then a bare Tenant for Life 2. If this Limitation were good 't was urged That the Estate limited to the Heirs of Penelope was virtually in her and her Heirs must claim by Descent from her and not as Purchasors and by Consequence this Estate is effectually barred by the Fine of Penelope the design of limiting this Power to the Heirs not being to exclude the Ancestor but because the Power could not in its nature be executed until after the decease of the Ancestor it being to take effect upon a Contingency that could not happen till after that time and this Bill and Appeal was not only to have the said Richard Carew who married Penelope to have not one Farthing Portion with his Wife but to make the now Respondent Sir Richard Carew to lose the 4855 l. which his Father Sir John Carew paid as charged on the Lands in question For which Reasons and many others well urged about the Mischief and Danger of Perpetuities and their Increase of late years to the intangling and ruine of many Families it was prayed that the Decree of Dismission might be affirmed but the same was Reversed Sir William Morley Knight of the Bath Plaintiff Versus Peter Jones Defendant WRit of Error to Reverse a Judgment in B.R. in Ejectment upon the Demise of Bellingham upon a Special Verdict which finds That Anne Bowyer Spinster was seized in Fee of the Mannor of Frencham that the said Anne and Edward Morley Esq and Sir William and J. Wells ante tempus quo c. viz. 22 July 1664. did make and as their Deed deliver a certain Indenture with their Seals sealed whereby the said Anne demises the Mannor aforesaid to Sir William and Wells and their Executors for one Month from the Day next before the Day of the Date that Sir W. and Wells entred and were possessed that they the 23d of July in the said Year sealed and as their Deed delivered another Indenture with their Seals sealed whereby the said Anne reciting a Marriage intended between Anne and Edward and that Edward had agreed to settle a Jointure out of his Lands to the value of 300 l. per Annum and that the said Anne had agreed in case the Marriage took effect and a Jointure were made as aforesaid to settle the said Mannor on him and his Heirs and to particular Trusts after-mentioned until the same be performed She the said Anne in consideration of the Marriage and in performance of the Agreement on her part Bargains Releases and Confirms to Sir W. and Wells their Heirs the said Mannor and all her Right c. and the Reversion c. in Trust for the said Anne and her Heirs until the Marriage take effect and assurance of a Jointure be made as aforesaid and after such Marriage and Assurance of such value as aforesaid then to the use of Edward and his Heirs c. Then the 1st of August 1664. a Marriage was had then the 29th of Jan. 1665. a Deed is Executed between the said Edward and Anne of the first part and Young and Truster as Trustees on the other part reciting that a Fine is already acknowledged and agreed to be levied in due Form of Law next Hillary Term between the said Young and Truster Plaintiffs and the said Edward and Anne his Wife of the said Mannor of Frencham and thereby declared that the said Fine should be to the use of Edward and his Heirs Two days after the Execution of that Deed and before the Fine levied viz. 31 Jan. 1665. another Writing indented was made and executed under Seal between the said Edward of the one part and the said Anne of the other part whereby they both in Consideration of the said Marriage and other good Causes did Covenant Consent and Agree to revoke all former Grants Bargains Contracts Writings Covenants and Obligations made or done between them or any other for them until the said Edward had performed the Agreements in the said Marriage Settlement on his part both in Law and Equity and that in default thereof it might be lawful for the said Anne and her Heirs to enter into the said Mannor and Land conveyed by the said Settlement without the lett of the said Edward and his Heirs Afterwards the Fine was levied Octabis Purificationis which was the 9th of February in that Term And afterwards by Indenture between the said Edward Morley of the one part and one Henry Doble of the other part dated 9 July 1666. the said Edward in consideration of 600 l. Mortgages the said Mannor to Doble and his Heirs Then the Money not being paid by Edward Morley to Doble Doble did 2 June 1676. in consideration of 600 l. with Interest paid by Sir William Morley conveys the said Mannor to one Thomas Young that Edward Morley did never convey the Lands agreed
the Respondents Davenport and Townsend and their Heirs to the use of him and his Heirs till his then intended Marriage should take effect And after such Marriage had then as to part in trust for his intended Wife and her Heirs and Assigns for ever And as to the rest in trust to permit the said Earl to receive the Profits during his Life and after his decease to sell the same for the best price and out of the Money raised by Sale to defray the Funeral Expences and pay his Debts and deliver the surplus as he should by his last Will and Testament in writing attested by three Witnesses or by another Deed in writing so attested appoint and for want thereof to the Executors and Administrators of the Earl with a Proviso That the said Earl by his last will and Testament or any other Deed in writing to be thereafter by him made and executed and attested as aforesaid might alter change determine or make void all or any the Trusts aforesaid and for want of such after to be made will or deed then in trust for the said Earl Edward his Heirs and Assigns for ever Earl Edward died without Issue of his Body and without Marriage The Appellant exhibited a Bill to have the said Deeds of Lease and Release set aside and to have the Will executed The Respondents as Heirs insist upon the Deeds as a Revocation and their Heirship was thus Theophilus Earl had Issue Edward Katharine Arabella and Margaret Edward died in the Life time of Theophilus leaving Issue Edward late Earl of Lincoln Katharine by Sir George Booth had Issue the Respondent Veer Booth Arabella by Robert Roll had Issue Samuel Roll and Margaret married Hugh Buscowen and had Issue the Respondent Bridget Fortescue And the Court assisted with the two Chief Justices and Mr. Justice Powel saw no Cause to relieve the Appellant And now it was argued with the Appeal That the Dismission was Erroneous there being Cause for Relief for that the Marriage never did take effect nor any serious Overture or Treaty was made by the said Earl on that behalf so as the said Earl did continue and at the time of his death was seized of the same Estate in the Premisses he had at the time of making and publishing the Will that if at Law the Deeds of Lease and Release were in strictness a revocation of the Will yet in Equity they ought not to be construed a Revocation of the said Will so often and so solemnly and deliberately made and published and upon so good a Consideration as the support of the Honour that the said Will was the Result of the Earls continued Intentions throughout his Life and the Deeds were only the effect of some sudden Fancy or Passion and even by those Deeds no benefit was designed to the Respondents for the disposition of the Surplus of what should be raised by the Sale was to be to his Executor Sir F. C. the Appellants Father and that did evidence a continued Kindness to him who never had offended him and no regard to the Respondents who tho' they were his Heirs general were related only at a distance and scarcely known by him and very well provided for by great Portions raised out of the Estate for their Mothers Then 't was argued that this Estate was meerly an equitable one and consequently Equity only ought to govern the disposition of it here 's no express Revocation pretended that a Mortgage in Fee is no Revocation for in Equity it doth not make the Estate anothers Here is a Noble Peer who is to sit in the Seat or Place of his Ancestors and therefore no Presumption Intendment or forced Implication ought to be against him or his Interest that this was designed to take effect in case the Marriage was had and not otherwise that here was no intention to revoke but upon the Contingency of his Marriage And there was cited Zouch and Barker's Case 1625. in the Lord Coventry's time Chancery Rep. and the Lord Boucher's Case in Edward the Sixth's time the Case was said to be in Dyer left as a Query and in 1 Rolls Abridg. And for these and many other Reasons and Authorities urged 't was prayed that the Dismission should be Reversed and the Appellant Relieved On the other side 't was insisted That tho' this was not an express Revocation by the use of words declaring it to be such yet 't was a true legal and effectual Revocation that these Deeds of Lease and Release did alter the Estate that here 't was for payment of Debts as well as in consideration of the intended Marriage that here was a manifest change of his Intention that both Will and Deed were voluntary and inconsistent and therefore the latter must stand that here were no Children or Creditors claiming under the Will that tho' the Subject Matter were an equitable Interest yet Equity ought to follow the Rules of Law that the Law made this a good Revocation and Equity ought to judge it the same way unless Fraud were proved to be used in the procuring of the Execution of these Deeds that the reason why a Mortgage even in Fee is not a Revocation is because a Mortgage doth carry upon the face of it a Defeasance 't is not reckoned an Inheritance to the Heir of the Mortgage but shall be Personal Estate and Assets to pay the Mortgagee's Debts This Deed was revocable by an after Will which shews the Party to have no regard for any former Will nor is there any reference to the Will then in being If a Marriage had happened 't would be agreed to have been a Revocation and if so when was the Will revoked by what Act by the Deed or by the Marriage That it was said that it certainly would have been revoked by the Deed and consequently ought to be construed a Revocation tho' no Marriage did ensue Revocations are the same in Equity as at Law and so was it held in the Case of the Earls of Bathe and Mountague The Statute of Frauds never was thought to extend to such Revocations as these Tho' Earl Edward's Intentions were once to support the Honour with the Estate yet it was always in his power to alter it The Lease and Release passed the Equity of Redemption and consequently 't is the same now between the Appellant and Respondents as if there had been no Mortgage in the Case 'T was further urged That a Will is but an imperfect Conveyance inchoate only and ambulatory as the Books term it till the death of the Party and another Will may revoke it and with greater reason may a Deed which alters the Estate and shews a change of the Intention of the Person who was Owner of it There 's no need of a Consideration to warrant the Revocation of a Will there needs no reason to be given for it 't is only the Mind of the Party which both makes and revokes the Will A Will is
reason to continue the exemption afterwards as there could be to allow it during the Interval when they do not draw the Plough And for these and other Reasons urged 't was prayed That the Decree for Tythe quoad such Cattle as ever had been used with the Plough should be reversed On the other side it was urged That the said Decree is agreeable to the Law and supported by many Resolutions in the Court of Exchequer that there was a Reason for Tythe in this Case because these Cattle tho' formerly used to the Plough they ceased now to belong to it and consequently Tythes became due that there 's a Difference in the nature of the thing for when they feed in order to labour the Parson hath a Tenth of the Benefit produced thereby but when they are fatted only for Sale 't is otherwise That this was a settled and allowed Difference in the Exchequer That while the Oxen are working no Tithe shall be paid for their feeding because there is Tithes of other things arising by the Labour of such Cattle but when they do no Work and are turned off to be fatted and are graz'd there Tithes shall be paid for the Herbage which they eat they being no way beneficial to the Parson in any other Tithes And many Cases in scacc ' were cited to warrant this Distinction and 't was said That none could be alledged to the contrary wherefore 't was prayed That the Decree might be affirmed and it was affirmed Magdalen Foubert Widow Grandmother and Administratrix of Katherine Frances Lorin de Granmare Appellant Versus Charles de Cresseron Administrator with the Will annexed of Katherine Granmare Respondent APpeal from a Decree in Chancery the Case was thus Peter Lorin Son of the Appellant and Katherine de Mandoville came to an Agreement to marry and that the longest Liver should take all whether Issue or not A publick Notary took and entred that Agreement in his Book and both Peter and Katherine subscribed the same so entred and then being written fair they signed it again and the now Appellant and other Relations subscribed it They Intermarried Peter was kill'd in Flanders and left Katherine with Child afterwards she being near her time thought fit to make her Will which she wrote with her own hand in French in these Words Quoy que je sois presentement en perfaite santé de corps et d'esprit cependant ne sçachant de quelle maniére il plaira à Dieu de disposer de moy dans ma couche Je trove à propos de marquer jcy més dernieres volontés En cas qu'il luy plaise de me retirer de ce monde si c'est sa volonté de donner dés jours à mon enfant Je luy laisse generalement tout ce qui peut m'appartenir supplie trés humblement Madame Foubert ma soeur Lorin et Mr ' le Bas d'en prendre soin J'espere que Mr. Foubert le Major à la consideration de feu son paure Pere luy rendront lés services dont il aura besoin que Dieu ne l'abandonnera point Je l'en supplie de toute mon ame comme aussi de benir toute la famille fait a Londres ce 16th de Novembre 1693. par moy Catherine de Granmare After which the said Katherine annexed a Codicil to her Will in these words viz. En cas qu'il plaise à Dieu de retirer mon Enfant aussy bien que moy Je donne à Madamoiselle le Bas ma bague de Diamans mon Ecritoire garnie d'argent une boëte de rubants neufs Je donne a Madamoselle Peireaus mon habit brun doublé couleur de paille et mon habit Jaune une demie douzanie de més Chemises Je donne au fils à Jacob dix livres sterlings pour le mettre en Métier à son pere ce qui se trovera dés habits de mon Mary Je donne a Catharine Williams ma filleule dix livres sterlings pour la mettre en mètier Tout le reste de ce qui m'appartient tant en Meubles que Linge Vaissell d'argent Argent Monnoye qui m'est dù Je le laisse à ma soeur Lorin a mess ' de Cresseron pour etre egallement partagé entre eux J'excepte seulement le portrait de mon Cher Mary ma bague Turquoise que Je donne à ma soeur Lorin la prie de garder l'une l'autre tant qu'elle vivra Je donne aussy a Monsieur Cresseron ma montre d'Or que le souhaite qu'il garde et porte pour l'amour de moy fait à Londres ce 16th Novembre par moy Catherine Granmare Then she was deliver'd of a Daughter and a few Hours after died and the Daughter did survive her near two Years and then died And after her Mother's Death there being no Executor named Administration of the Estate of the Testatrix was committed during the Minority of the Child with the Will annexed but the Appellant possest her self of the Estate being about 600 l. Value Then after the Child's Death the Appellant as next of Kin took Administration to the Child and also to Mrs. Granmare The Respondent exhibited his Bill claiming a Moiety of the Residuum by force of the Codicil the Appellant by Answer insisted upon the Invalidity of the Agreement between Peter and Katherine but that being waived the Question arose upon the words of the Will and particularly these donner des jours and 't was insisted That nothing was designed to the Respondent but only in case the Child were still-born or should die in her lying in whereupon the Court ordered the Cause to be continued in the Paper and that both sides should take time to procure the Opinion of French Men born and acquainted with the Laws of France and the Cause coming on again to be heard before the Lord Chancellour and upon reading of several Opinions of French Gentlemen bred to the Laws of that Country the Court declared That the Respondent was well intituled to his Moiety of the Residue after the particular Legacies Debts Funerals and other Allowances deducted and decreed the same accordingly It was argued on the behalf of the Appellant That this Decree was erroneous that the proper Signification of those words was no more than to give Life that it was so translated at Doctors Commons That that Translation does agree with the Opinion of several of the most learned Divines amongst the French Refugees here That 't is so interpreted in the Famous Dictionary of the French Academy dedicated to that King where the Words are as follows viz. lés jours au pluriel signifie la vie That Days in the plural signifie Life without any Determination of time That there are few Frenchmen of any Understanding but will acknowledge That by lés jours d'une personne the
the Plaintiffs Title or Charge This is no more then if they had traversed the Grant which they could not do In the Case of a common Person suppose the Defendant's Title not full yet if he traverses the Plaintiffs that 's enough Form requires an Inducement to a Traverse but the latter is only material for the Plaintiff to answer to for nothing can be traversed but what is material now why should it not have been a good answer to their Declaration to have said that Car. 2. presented by Lapse absque hoc that Car. 1. died seized for by this the Seisin or Presentation of Car. 2. had been avoided and there 's nothing else material in the Declaration for the Seisin of Queen Elizabeth and Jac. 1. are not to the purpose and if answered by the Defendant it must have been against him there had been a good Title for the King without it then supposing it necessary to shew how it came out of Car. 1. the Attorney General can only take Issue on the Traverse of his dying seized for that denies the whole Title that is material to be answered to Now whatsoever shews that the Plaintiff hath no right to the thing in demand is a good Plea let who will have the true right The true Title upon this Declaration is that Car. 1. presented and thereby became seized and died seized and the denying him to dye seized is a denial of this Title for if K. Car. 2. did present by Lapse and K. Car. 1. did not die seized 't is with the Defendant no Man is bound to answer that which if he do 't will still be against him but if a Man makes such an answer as if true the present Plaintiff hath no Title 't is enough Then if it be true that no Right descended from Car. 1. to Car. 2. and that Car. 2. presented only by Lapse what Right can his present Majesty have and all this is confessed by the Demurrer if well pleaded and 't is no Objection to say that the dying seized ought not to be traversed but only the Presentation for that is a mistake in case of Land 't is good and an Advowson is an Inheritance descendible in like manner and Mr. Attorney thinks it a good Traverse for he all along in his Declaration alledges a dying feized from Queen Elizabeth downward and there are several Presidents thus Winch's Ent. 661 662. and Winch. 912 686 692. and Buckler and Symonds Winch. 911 912. is of an Advowson in gross and in the same Book 35 59 are thus A man may die seized of an Advowson as well as of Land and if he doth not dye seized it doth not descend and the Seisin in gross is not to be traversed as is 1 Anderson 269. and Hob. 102. ' Then 't was said that the true Reason and Nature of a material good Traverse is well explained in Vaughan's first Case of Tufton and Sir Rich. Temple and 1 Saund. 21 22. and it is this especially in a Quare Impedit If any thing in the Count be travers'd it must be such Part as if true is inconsistent with the Defendants Title and if false or found against the Plaintiff doth absolutely destroy his Title nay if the Traverse leaves no Title in the Plaintiff then 't is good whatsoever comes of the Defendants Then the Difficulty is If the King by his Prerogative may waive his own Title which is traversed and insist upon the Deficiency of that which the Defendant alledges and in the Case of the King and the Bishop of Worcester and Jervis in Vaughan 53. there 't is said That the King ought to maintain his own and not to question the Defendants he cannot desert that which he hath alledged for himself and fall upon the Defendants Title and Reason warrants such Rule for tho' the King hath no Damages in a Quare Impedit notwithstanding his laying it ad dampnum Hob. 23 yet the Suit supposes an Hindrance and Damage to the King and if the Right be not his he hath no Cause to complain of the Defendant tho' another hath Every Man is to recover by his own Strength and not by the Weakness of the Defendants Pretensions and if the Law be thus then how can Mr. Attorney-General take Advantage of this upon Demurrer after Oyer for now upon Oyer 't is as they say become Part of the Defendants Plea and consequently it must be part of the Inducement and if so he ought in that Case to have taken Issue upon the Traverse which denied his Master's Title Wherefore upon the whole Matter it was prayed That the Judgment should be reversed On the other side 't was argued for the King That this Judgment ought to stand and as to the last point 't was said That taking it for granted the King could not traverse any Point of the Defendants Plea yet certainly he might demurr upon the whole in case it were insufficient That now Oyer was craved and had the Deed did become part of the Defendants Plea and must be taken as such That tho' there had been no need of a Profert yet when 't is produced 't is such as he hath pleaded and upon the whole the Court is to judge there being a Demurrer That as the Case stood the King might take advantage of both the Exceptions That the Declaration of it self was good and if the Plea be naught the King ought to have Judgment for him That every Plea is to be taken most strongly against the Party that pleads it That here the Defendant had admitted K. Car. 1. well seized that he ought to shew it out of him otherwise the Plea was ill that every Traverse must have an Inducement That if upon the whole Plea it did not appear that King Car. 1. parted with this Advowson 't is naught That if by the Parties own shewing it was manifest to the Court That the King continued seized and what he doth further shew no ways contradicts it he could not traverse the dying seized and therefore a Demurrer was most proper and consequently upon this Demurrer they were let in to affirm that nothing passed from the King by these Letters Patents of Car. 1. Then it was argued That this Grant was void because it was to a Person then Esq that Tunc Armigero can have Reference only to the time of the Letters Patents that a Man cannot be a Knight and an Esq at the same time that Knight is part of his Name and the Title of Esq is drowned in that of Knight that the old Books are thus 7 Hen. 4.7 14 Hen. 6.15 21 Edw. 4.72 2 Inst. 594. 666. Hutt 41. Bro. Tit. nosme 33. 1 Cro. 372. That 't is true if a Deed of Feoffment be made to a Man by a wrong Name and Livery be thereupon had 't is good but all the Books make a difference between that Case and where it is by Deed where the Operation is altogether by Deed Then was cited