because of a mistryal for taking away divers parcels of Ribbin from him The Defendants pleaded by way of Iustification the Custom of London against Hawkers viz. to take away wares from any that sold them up and down the Streets The Plaintiff replyed that there was no such custom and issue was taken upon it thereupon the custom was certifyed by the mouth of the Recorder a tryal upon it in London a verdict for the Defendants The Plaintiff moved in arrest of Iudgement that it was a mis-tryal because it was before them that were interesâ—ed in the cause and therefore desired there might be another tryal Roll Iustice said it is against natural equity for one to be Iudge in his own cause Tryal although the other party admit it to be so and therefore it is a mistryall though it were at the request of the Plaintiff because it is against natural reason 8 E. 3. f. 69. 5 Ed. 3.8 9 H. 7. f. 21. Hil. 38 Eliz. in the Exchequer The prayer of the Plaintiff cannot help the tryal for the consent of both partyes cannot change the Law much lesse the prayer of one of the partyes Hales of Councel with the Defendants argued that it was not a mis-tryall and said this concerns them in point of privilege of the City and not meerly in point of interest before whom the Iudgement was gievn 2ly The consent of the party hath barred him of the advantage which otherwise he might have had But Roll Iustice answered here is point of interest as well as point of privilege for part of the goods taken come to the benefit of the City and therefore they ought not to be their own Iudges for this is against natural reason and so it is a mistryal But it doth not appear here whether the Maior and Aldermen be another Corporation or not and distinct from the Corporation alleged which certified this custom by the mouth of the Recorder and this is the sole doubt in the Case The Court ordered that there should be a new tryal except cause shewn to the contrary Q. whether there shall be a Repleader or a new venire VVhite and his wife against Harwood and his wife Mich. 24 Car. Banc. Reg. WHite and his wife brought an Action upon the Case for standerous words Whether a writ abated by death of one of the defendants Abatement against Harwood and his wife the Defendant dyes the Feme takes another Husband pending the sute It was moved that the writ was abated The Court inclined that because the Defendant had by her mariage changed her name therefore the Writ was abated but took time to advise Slade Mich. 24 Car. Banc. Reg. THe Court was moved for Iudgement formerly stayed upon a certificate made by Baron Atkins For Iudgement stayed upon a Iudges certificat that the verdict passed against his opinon Bacon Iustice said Iudgements have been arrested in the Common pleas upon such certificates Hales of Councell with the Defendant prayed that this Iudgement might be arrested and that there might be a new tryal for that it hath been done heretofore in like cases But Roll Iustice held it ought not to be stayed Attaint 9 though it have been done in the Common pleas for it was too Arbitrary for them to do it and you may have your attaint against the Iury and there is no other remedy in Law for you but it were good to advise the party to suffer a new tryal for better satisfaction And let the Defendant take four dayes from hence to speak in arrest of Iudgement if the postea be brought in if not then four dayes from the time it shall be brought in Andrews against Baily Mich. 24 Car. Banc. Reg. VPon a tryal at the Bar between Andrews and Baily Denisation by Letters parents do enable to purchase not to inherit lands Denization Inheritance upon an ejectment lease touching Sir Iohn Prowds title to Lands It was said that a man cannot be a subject to two several Princes And that denisation by letters patents do enable the party to purchase Lands but not to inherit the Lands of his Ancestor as Heir at Law But as a purchasor he may enjoy lands of his Ancestor Dunch against Smith and others Mich. 24 Car. Banc. Reg. Hil. 23 Car. rot 37. DUnch brought an Action of Debt as an Executor for arrerages of a rent charge due to the Testator Demurrer to a Declaration in Debt against Smith and others the occupyers of the Land The Defendants demur to the Declaration and for cause shew that it doth not set forth what estate the Defendants have in the lands charged with the rent and so it appears not that they are to pay the rent Hales of Councell with the plaintiff answered that it is not necessary for the Plaintiff to set it forth for he is a stranger to the Estate cannot know what Estate it is Roll Iustice said It doth not appear by the Declaration whether the Defendants claim under him that granted the rent or no. But move it again Saturday next Postea Smith against Hale Mich. 24 Car. Banc. Reg. SMith brought an Action of Debt against Hale for rent Demurrer to privilege of Parliament The Defendant pleaded that he is Tenant and Servant to the Lord Moone a Lord of the Parliament and prayes his Writ of Privilege may be allowed The Plaintiff demurs It was argued by Barton of the middle Temple that the plea was ill for the very matter of it for the privilege is against the Common Law and also against the Statute Law and for proof cited 1 E. 1. f. 26. 2 E. 3. f. 3. 2 Ed. 6. C. 8. Roll Iustice answered Privilege you ought not to argue generally against the Privilege of Parliament for you know that every Court hath its privilege as this Court also hath therefore apply your self particularly to this question Admittance whether a Writ of privilege belongs to a Parliament man so far as to protect his Lands and Estate and I conceive he is so priviledged And you have admitted his privilege by your own Demurrer But we will advise Wright Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to perform Articles Plaintiff after a verdict for him moves for a new tryal The Defendant pleaded Covenants performed The Plaintiff had a verdict and after verdict and before Iudgement he moved for a new tryal because it appeared that there was no issue joyned the Plaintiff moved it for his own expedition for he feared if he should enter Iudgement that the Defendant would bring a Writ of Error The Court answered that there was a perfect issue joyned but the pleading is not good and it was your own fault to joyn issue upon such a pleading when you might have demurred Tryall Yet let the Defendant shew cause why he should not consent to a new tryal and a Repleader Mich. 24 Car. Banc.
Action of debt Hogg and Vaughan HOgg brings an Action of the Case against Vaughan for these words spoken of him Arrest of Judgement in an action upon the Case viz. Thou art a perjured Priest and hath a verdict It was moved in Arrest of Iudgement that the words were not actionable for they signified no more than that he was forsworn But the Court held that they must be meant that he was guilty of perjury for which he might be endicted and therefore were actionable Mich. 21 Car. I. Assumes and promiseth to B. that if B. will pay 50 l. to C. his son Action upon the case upon a promise who was maried to D. the Daughter of I. at such a time that he will pay 100 l. to D. his Daughter at such a time B. pays the 50 l. to C. at the time appointed I. fails in payment of the 100 l. according as was agréed B. dies intestate and E. administers and brings an Action upon the Case against I. upon this promise made to B. the Testator and adjudged that the Action did well lie by the Administrator though he should receive no benefit if he did recover Dickenson and Preston Mich. 22 Car. Banc. reg Ter. Pasc 22 Car. rot 251. A Writ of Error was brought by Preston Error to reverse a Judgement in York to reverse a Iudgement against him at York and assigns for Error that the Venire was de Balliva sua whereas it ought to have been de corpore Comitatus and it cannot appear by the Venire to what place the Balywick extends and the Balywick of the City may extend further than the City and upon this the Court adjudged the Venire naught More against Savage 22 Car. Banc. reg MOre Widow brings an appeal against Savage for the death of her Husband Savage appears and demurs to the original writ Demurrer upon an appeal and shews for cause that in one part of the writ instead of the word tunâ— it was tuc which made the Writ incertain To this the Council of the other part answered That it ought to be amended by the Statute of 14 E. 3. and that the Writ ought not for so small a fault to be abated But to this it was replyed that the Statute was only for the amendment of mean process and not of original Writs for original writs were not amendable because the party might purchase a new writ if a former were naught In justification of the writ it was further urged that the word tunc in the writ was a méer formal word and not of the substance of the writ and that the writ would be good enough without it and therefore though it were mistaken it was not so material as that the writ should be thereby abated But the Court answered that an original writ if it be defective in form is abatable if it be not amendable by Statute and conceived that here it being in an appeal where life is in question the writ is not amendable though it be defective but in form neither by the Common Law nor by any Statute Law nor can the party purchase a new writ adjournatur but afterwards viz. 9. Feb. 22 Car. the writ was quashed for the cause aforesaid and because it did not appear that the feme who brought the appeal was wife to the party slain at the time when he was slain It was thereupon moved that the Defendant might be arraigned upon the Count though the writ was abated but the Court held he could not because the Count was founded on the writ which was abated and these books were cited 4 H. 6.14 and 18 E. 3.35 upon view of presidents he was afterwards discharged Luskins and Carver 22 Car. Banc. reg THe Case was this Anne Carver made her last will and testament Prohibition to the Praeâ—ogative Court and a Mandamus and makes Luskins her Executor having bona notabilia in divers Diocesses Luskins proves the will in an inferiour Diocess and not in the Prerogative Court as he ought to have done a stranger sues for Letters of Administration in the Prerogative Court Luskins desires to prove the will there and that he may administer the Court refuseth to admit him to administer the goods except he will put in security to the Court to pay all the Legacies but if he shall refuse will grant Letters of administration to the stranger Mandamus Luskins moves in this Court for a writ of a Mandamus to compell the Prerogative Court to grant him the administration according to the will The Court ruled the other party to shew cause the next day why they should not grant such a writ and were of clear opinion they might do it and to prove it the Countesse of Barkshires case Hill 20 Iac. and the case of St. Burien in Cornwall was cited and the same Term the writ was granted accordingly Fortescue and Brograve 22 Car. Banc. Reg. Tâ—e Plaintiff brings an action for breach of Covenant upon a Deed An action upon a breach of Covenant by deed The Defendant pleads a parol agreement afterwards in discharge of the former Covenant but the Court held the plea not good and took these differences Plea That a parol agreement before a breach of it may be discharged by parol and so pleaded after a breach it cannot be pleaded in discharge without satisfaction also pleaded Concord but a discharge may be pleaded by Deed be the Covenant by Parol or by Deed after a breach and without satisfaction Broome and Evering Hill 22 Car. Banc. Reg. Hill 21 Car. rot 354. A Iudgement was given against the Testator of the Defendant Error to reverse a judgement given in a Scire facias to revive a judgement in debt in an action of Debt for rent and this judgement was revived by a scire facias against the Executor and a verdict thereupon and a judgement was given against him in the Common pleas upon this a writ of Error was brought in the Kings Bench to reverse this judgement and the error assigned was that the tryal was insufficient because the Venire sacias was not good and is not helped by the Statute of Ieofails and to prove this Baynams case in the 5th Report was cited But Hales answered that the Venire facias being awarded before it ought was to be accompted as if no Venire had been awarded and said it was like to a dedimus to take a fine before the writ of Covenant issued forth to levy the fine and so concluded that it was helped by the Statute of Jeofails But the Court took a difference ☞ where in truth there was no Venire facias at all and where there is an ill Venire facis as it is here for thought it be as bad as may be yet being it is a Venire facias it is not helped by the Statute of Ieofails Erâ—or Jâ—oâ— ils but if there had been none the Statute had made
to the Sheriff for his appearance and therefore it was prayed that the party arrested might be discharged and that the bond given to the Sherif might be delivered up Roll the chief Iustice answered Endict the Bailies that made the Arrest or bring your Action against them if you please Discharge for we will not discharge the party arrested Bois against Cranfield Mich. 1650. Banc. sup rot Q. BOis as Executor to another brought an Action of Debt upon divers Obligations made to his Testator Debt upon divers Obligations by an Execution The Defendant pleaded that he did pay a lesser sum than is expressed in the Obligations to the Testator during his life and that he did accept there of in full satisfaction of the said Obligations To this plea the Plaintif demurred Roll Chief Iustice upon opening the matter said that the question here is whether the payment or the acceptance of the money paid in satisfaction be to be traversed And he held it was indifferent to traverse either of them Traverse but he said it was more proper to joyn issue upon the payment but the Court would advise It was then also said that if one pay money in satisfaction of an Obligation and the party to whom it is paid saith that he will receive it for another cause Satisfaction payment yet if he receive it it shall be judged to be paid in satisfaction of the Obligation for he must receive it upon such terms as the other will pay it Brian against Stone Mich. 1650. Banc. sup STone moves the Court for an Attachment against Brian and others For an Attachment for that he was arrested by a Latitat out of this Court in the County of Wilts and thence carried into the Town of Malborow and there arrested by a Serjeant of that Town by a writ out of that Corporation and the Plaintif procéeds there against him upon that writ and not upon the latitat by which he was first arrested which is a contempt to this Court. Attachment Habeas Corpus cum causa The Court ruled the party should have an Attachment nisi c. and also should have a Habeas Corpus cum causa Mich. 1650. Banc. sup THe Recorder of London moved for the Inhabitants of Bishopsgate against one Withringes For the setting a moderate fine upon one that submitted to a fine who for refusing to serve upon the Ward mote Enquest was indicted for his refusal in London and convicted and fined 20 l. the Defendant being committed for not paying his fine removed himself hither by a Habeas Corpus but now hath submitted himself to a fine it was therefore prayed he may be moderately fined here The Court thereupon fined him 20 l. Beal against VVyman Mich. 1650. Banc. sup Trin. 1649. rot 849. VPon these words of a will Question upon words of a Will viz. I give and bequeath one half of my lands to my wife after her death I give all my lands to the heirs males of any of my Sons or next of Kin Latch made these questions in the Case 1. Whether there were a good estate created by these words of the will 2ly Whether the estate were destroyed by the fine levied of the lands For the 1. he held that the heirs males of any of his Sons are words certain enough to create an estate for it is all one as if he had said to the heirs males of all his sons if they have heirs males or to those who have heirs males and the words or to the next of Kin are also certain enough being joyned with the precedent words and shall be meant to the next of Kin and their heirs males if his sons have no heirs males For in a Win if there be words to express the meaning of the Testator it is sufficient enough though the words be not apt And he cited 21 Rich. 2. Devise 27. and 8 Rep. 46 and said that the case in 30 Ass pl. 47. is the same with this in terminis And here is no contingent remainder but only a contingent devise there is no necessity for a particular estate to support it for it ariseth out of the estate of the Devisor yet if there were néed of a particular estate here to support the remainder here is a particular estate in the wife who by implication of the will doth take all the land during her life as it is 13 H. 7.29 H. 8. Br. Devise 48. Trin. 3 Ed. 6. Bendloes Plow Com. 521. Whelpdales case Pasch 25 Eliz Com. Ban. To the 2 point he spake not holding it not material Hales of Councel on the other side held that the wife had not an estate for life in all the land by implication of the will but only an estate for life in a moyety of the land and so there is no particular estate to support the contingent remainder which he held was in this case that it is not a contingent Devise as Latch urged for the remainder here depends by way of remainder and not as a contingent Devise And he held the Devise it self to be void admitting all the precedent matter alleged to be true 1. Because the devise is uncertain for the intent of the deviser doth not appear for it appears not what heir male shall have the land whether the heir male of his son or the heir male of his next of Kin for the words are disjunctive 41 42 Eliz. Com. Banc. in the Case of Tayler Sawyer land devised to a Mans Issue was adjudged a void devise for the incertainty of it And he held that the intent was that the heir male of his son should inherit before the heir male of the next of Kin otherwise the further off of Kin should have the land before the nearer of Kin. And he said that Hill 2. Car. Rot. 1288. Com. Banc. in Hunt and Fishers case the case at the Bar was adjudged in point Roll chief Iustice said That the intention of the Testator here is coeca sicca Intention and senceless and cannot be known Will. and we ought not to frame a sence upon the words of a Will where we cannot find out the Testators meaning Ierman Iustice held that the devise was not void but that the words are to be interpreted as they may stand with Law and as the words will bear Nicholas Iustice prima facie that the devise is void but yet it is questionable Ask Justice to the same intent Roll chief Iustice said that there is too much way usually given to ambiguous devises But let it be argued again the next Term. Parker against Cook Mich. 1650. Banc. sup Hill 23 Car. rot 660. THe Action was an Action of Trespass quare Clausum fregit Upon a Demurrer the question was whether a Copyhold were forfeited or not The Defendant pleaded a special plea of justification viz. That the Plaintif was a Copyholder to his Manor and that for
is a Iudgement well given Plea and it is too late to assign it for Error But the Court advised Postea Kerman against Iohnson Trin. 1651. Banc. sup Trin. 1649. rot 153. KErman brought an Action of Trespass and Ejectment against Johnson Special verdict in Trespass and Ejectment and upon a special Verdict found the Case was this A man devised to I. S. his whole estate paying his debts and Legacies and dies possessed of Goods and Chattels to the value of five pounds only and dyed also seised in fee of divers lands and was indebted forty pounds at the time of his death The question was whether the lands passed by the Devise Barry of Councel with the Plaintif argued that the lands did pass because that wills ought to receive a favourable construction And 2ly The intent of the Testator is to be considered who by the words all his estate did mean to comprehend as well his land as his goods and chattels for there is no restraint of the words here 7 Ed. 3.10 The word estate is a word of large extent and extends as well to the real as personal estate if it were in Case of grant much more in the case of a Will And there is another word used here to explain the Testators meaning to be to devise his lands as well as his goods and that is the word All which comprehends all manner of estates without exception Next if the land should not pass his debts and Legacies cannot be paid according to the express intent of the Testator and the intent of the party ought to be satisfied although the words be not proper because it is in a will though it might be other wise in a grant And whereas it is objected that the Iuries finding of the value of the debts and Legacies is to no purpose because the will cannot be helped by the averment of the Iury. I answer that averments if they stand with the will may be received to make the Testators intent to appear But besides this is not an averment only but a true stating of the Case to the intent to find out the Testators meaning 3ly The devisee of the land is not made Executor but Trustee or Devisee this is since the Statute of Devises 32 H. 8. The 2. question is what estate the Devisee hath in the lands I conceive he hath Fee simple because he hath all the Estate which must be the largest and that is Fee-simple Hob. rep pl. 280. The word whole goes both to the quantity and quality of an estate also And here the consideration that he is to pay all his Debts and Legacies is a good consideration to pass the fee-simple of his lands and though there may be a surplusage after the Debts and Legacies paid this hinders nothing for it is his intent that the Devisee shall have that surplusage and so he prayed Iudgement for the Plaintif Twisden for the Defendant argued that either nothing passeth by the Will or if any thing then only an estate for life passeth He agreed that improper words may sometimes pais things yet sometimes proper words will not passe things viz. if the intent of the party appear to be contrary 24 Eliz in the Earl of Northumberlands case A Devise of all his Iewels did not pass his Collar of Esses and his Iewels annexed to his Parliament Robes and the words here are not that he deviseth all his estate in his lands but his whole estate generally and if the words here should pass the lands yet the fee simple passeth not but only an estate for life in the lands which do pass nor do the words paying his Debts and Legacies cause the Fee-simple to pass for here is no likelyhood of any loss to the Executor for the words are not that he shall pay all his Debts and Legacies and if he be an Executor as the contrary appears not he shall not be charged with more than the personal estate will discharge The words do amount to a Condition and it is not found that there are any Debts or Legacies paid and so it is not performed and the heir may well enter into the lands in question for the Condition broken 2ly The Verdict doth not find how the lands are held whether in Socage or by Knights service and so it appears not whether they can be devised or no and they shall not be intended to be Socage lands Dyer f. 207. Hill 32 El. rot 2. and Pell and Browns case 3ly It is not found that the Testator dyed seised of the lands as it ought to have been and he prayed Iudgement for the Defendant Special Verdict Roll. chief Iustice to the second Exception to the Verdict answered that in a Special verdict it is not necessary to find whether lands be held in Sorage or by Knights Service and he said that the words in the Will do goe to the nature and extent of the estate as Barry urged and he doubted how the verdict shall supply the Will if it be defective for that is only to make the intent of the Will certain Adjourned to be argued again Postea Marshal against Ledsham Trin. 1651. Banc. sup MArshal as Administrator brings an Action of Debt for rent Arrest of Judgement in Debt and upon a Verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and takes exception that the Plaintif had not shewn by whom the Letters of Administration were granted unto him as he ought to do but only says that the Administration debito more commissa fuit But it was answered that it is too late to move this Exception after a Verdict for the Iury have now found that the Administration was duly granted and the Letters of Administration were produced in Court and therefore not necessary to shew who granted them Declaration and it was said that in a Declaration it is not necessary to shew by whom Letters of Administration are granted or to say they were granted by him Cui pertinuit or per loci illius Ordinarium But in a Plea in Bar it is otherwise for this is not the cause of the Action Plea and effect of the sute but to shew they have been in the Spiritual Court Judicium nisi pro quaerente was afterwards given Antea Giles against Timberley Trin. 1651. Banc. sup Mich. 1650. rot 176. AN Ejectione firmae vi et armis was brought in the Common Pleas Error to reverse a judgement in an Ejectione firmae and a judgement given for the Plaintif upon a nihil dicit and in a writ of Error brought in this Court to reverse the judgement the Error assigned was in the judgement which was entred thus Ideo consideratum est quod recuperet and the word Capiatur was omitted which ought not to be because the Action is a Trespass vi et armis Roll chief Iustice said It is an ill course they use in the Common Pleas to enter
wilfull murther he could not pardon because it is against the Law of God and he cited 12 H. 8. f. 5. Brudenell By the Law delivered to Noah Gen. ver 6. shedding of blood was made unpardonable and that is a perpetual Law Stat. 13. R. 2. C. 1. The King may delegate administration of Iustice to his Ministers but not dispensation of mercy By the Statute of 13 R. 2. c. 1. The King was admonished not to pardon murther so generally as he used but enacted That if in his pardons he did not expresse the word Murther the pardon should not be good and the word Murther is not expressed in this pardon and therefore it is not good nor to be allowed 3 Instit 236. 8 H. 6. 20. 9 H. 6. 8. Kel 9 Nor doth the King in this pardon recite the Endictment it self for then it may be it might have altered the Case but only recites the fact generally and though the words in the pardon be general and seem to include murther yet they cannot make the pardon good because it wants the express word it self viz. Murther and although the Charter be not void yet it cannot be allowed for want of that word nor can the general non obstante in the pardon dispence with the Statute of 13 R. 2. for all non obstantes are good only where the King takes notice of the Law wherewith he dispenseth And as to the Statute of 13 R. 2. First By it the just power of the King is made certain and ought to be strictly pursued 2ly That Statute was made of grace and as a boone to the people in which they have a special interest and is not to be abridged 3ly It was made for the more free administration of Iustice with which the King may not dispence Hob. f. 214. Here Lyliars case 11 Rep. f. 88. And although the party here be prosecuted at the sute of the King yet the prosecution is for the benefit of the people and therefore the King cannot pardon him 3 Inst f. 337 and so he prayed the pardon might not be allowed Hales appointed by the Iudges to argue ad informandum conscientiam as Windham also was argued for Rickaby that the pardon was to be allowed for the question now is not whether the pardon be to be granted or no. And 2ly he held that here is a good non obstanâ—e in the pardon to dispence with the Statute and he argued that murther at the Common Law was pardonable by other words as well as by the word murther viz. by the word Felony and by the word Death of a man for murther is but Felony in a high degrée and majus et minus non variant speâ—iem 4. rep Holfords case and the Statute of 13 R. 2. makes this cleer and that Statute is dispensed with by the non obstante For that Statute was not made to disable the King from pardoning murther but to direct and enform the King and with that the King may dispence by a non obstante 16 R. 3. Tit. graunts 34. 5 Iac. in this Court Bakers case And here is a dispensation by the Statute of R. 2. that this may be said a pardon at the Common Law for it appears by the words of the pardon that the King intended thereby to break through the Statute and to pardon the party what ever his offence was for although the non obstante do not expess the word murther yet it is good for there are equivalent words to murther in the pardon for the non obstante to dispence withall As if the King grants a pardon notwithstanding the Statute of Rich. 2. It is necessary to be referred to that clause in the Statute which is to be dispensed withall and so is it here for there is no other end for the King to dispence with the Statute of R. 2. C. 13. but for this clause and besides here is a special non obstante and not a general and for authorityes he cited Stamford 101. pleas of the Crown 236. and for presidents 31 Eliz. 4 Iac. 5 Iac. 6. Iac. and many others and said that he found none against them Roll chief Iustice Were it not for the presidents I hold there would be but little question in the case but some of these questions have been debated in some times although we cannot question the King for granting such pardons yet it is questionable whether he may grant them by the Law of God but the King may do it in some cases Pardon but here is a Statute that sayes he shall not do it if he do not take notice of the fact in his pardon by the name of murther and here is no such expression but the words are general if the King pardon malum â—se with an non obstante it is not good But let us see Presidents and we will advise till the next Term. The next Term Roll chief Iustice in the behalf of himself and the other Iudges delivered the opinion of the Court in this case to this effect We are all of one opinion and my brothers have desired me to deliver the reasons of thâ—irs and my opinion First I will open the Record which in effect is this Rickaby was endicted at Durham for murther and the endictment was removed into this Court by a certiorari and Rickaby brought hither by a habeas corpus and being demanded what he could say for himself why he should not be adjudged to die he pleaded the pardon of the late King which pardons the death of Curtine in very general words but the pardon doth not expresse the word murther and in his plea he mentions not the Statute of 10 Ed. 3 by a non obstante and this is set forth for confirmation of his plea and the Statute of 13 R. 2. is alleged with a non obstante The case in brief is Rickaby and others endicted for killing George Curtine and brought bither pleads his pardon as is before expressed The question is whether the pardon is to be allowed or not This case hath been well argued and the like case with this was never called into question or argued before this and therefore if we shall not allow this pardon now we have better reason to move us to it than others have had to do the contrary and therefore we shall send him into the Country to receive Iustice there for his offence for we are all of one opinion that the pardon is not to be allowed and that for these reasons the question here is not whether the King will pardon murther but Cook saith the King will not pardon it if he know it to be murther but the first question is whether the King can pardon murder without a non obstante 2ly Whether he can do it with a special non obstante 3ly Whether he can pardon it by this non obstante in this Charter of pardon 4ly Whether Rickaby hath pleaded this non obstante so that he may