parcel of it for in the one Case the Visne shall be of the Manor in the other not Vide 9. Eliz. Dyer ar But it was said That in this Case the Modus did extend only to things in Stangrave and therefore the Visne should be of Stangrave only Nichols Justice said That although the Parish be a Town and of one name yet the Visne shall be from the Parish to which the Court agreed And in the principall Case the Pleading was That the Manor was in Parochia and the Modus alledged to be in Parochia and the Prohibition de Parochia and therefore the Venire facias ought to be de Parochia and not de Manerio or de Villâ—â— Cook cited 4. E. 4. and 23. E. 4. that in Trespass de Parochia is a good addition for it shall not be intended that there are two Towns in one Parish And it was said by the Court in this Case That before the Statute of 2. E. 6. all Prohibitions to the Spirituall Court were quia secutus est de Laico feodo for when a man had a Modus dicimandi the Corn and other things were lay things Then it was moved by a Serjeant at Bar That at the Assizes where the tryall of the Modus decimandi was one of the principal Panel did appear only upon the Venire facias and the question was If in such Case a tales might be awarded de circumstantibus And it was holden by the Court that such tales might be well awarded and 10. Eliz. Dyer vouched to prove the same It was also said by the Court That at the common Law if not in appeal the tales might be of odd number as quinque tales or novem tales but now since the Statute of 35. H. 8. the tales may be even or odd as pleaseth the party But it was adjudged in this Case That in no Case where a triall is at the Bar shall any Tales de circumstantibus be awarded And so are all the Presidents Mich. 11. Jacobi in the Common Pleas. 292 LEIGHTON against GREEN and GARRET THomas Leighton an Administrator durante minori 〈◊〉 of J. S. did libell in the Court of Admiralty against the Defendants and shewed in the Libel That there were Covenants made betwixt them by a Charter party they being Owners of the Ship called the Mary and John of Lynn that the Defendants should victuall the said Ship for a Voyage into Denmark and that the Ship should be staunch and without leak And shewed in his Libel that the Ship being upon the Seas did spring a leak by reason of which the Plaintiff did lose a great part of the Freight of the said Ship consisting in divers Commodities viz. Coney skins The Defendant pleaded That the Covenants were made infra Portum de Lynn And further pleaded That the Plaintiffe had before that time brought an Action of Covenants against the same Defendant upon the same Deed in which Action the Plaintiffe was Non-suit and it was adjudged That it was a good Plea in Bar and thereupon a Prohibition was awarded to the Court of Admiralty Cook Chief Justice in this Case said That charter party est charta partita and is all one in the Civil Law as an Indenture is in the Common Law And in this Case it was adjudged That the Triall should be there where the contract was made and so was it adjudged in Constantine and Gynns Case Where the Originall Act was in England and the subsequent matter upon the Sea the Tryall shall be where the Originall Act is done And so it was agreed in this Case that the Tryal should be Mich. 11. Jacobi in the Star-Chamber 293 MILLER against REIGNOLDS and BASSET SIr Henry Mountagu the Kings Serjeant did informe the Lords in the Star-Chamber How that the Defendants had conspired and practised Malitiosè to draw the Plaintiffs life in question being a man of One thousand Pounds per annum and otherwise very rich The Case was shortly thus Basset the Defendant was Tenant unto the Plaintiffe of a house in R. in Kent rendring a Rent the rent was behind and the Plaintiff demanded his Rent of him the Defendant told him That he was not able to satisfie him the Rent but he promised to give unto the Plaintiffe all his Goods in satisfaction of the Rent or so many of them as should countervaile the Rent and it was agreed betwixt the Plaintiff and the Defendant Basset that the Goods should be apprised by two men which was done accordingly and the Plaintiff came to the Defendants house at the time the said Goods were apprised but it was deposed and proved did not go out of the room where the apprisement was made at the time he was in the said house which was the 10 of May 7. Jacobi ar Afterwards the Defendants Reignolds being an Atturny at Law and Basset did conspire to accuse the Plaintiffe because that when he came to the Defendant Bassets house at the time of the apprising of the said Goods that the Plaintiffe went up into an upper Chamber in the said house and broke up a Chest and out of the same took a Gold Ring 10. s. in Money and the Defendant Bassets Lease of his house and thereupon brought the Plaintiff before divers Justices of the Peace who upon Examination of the matter found no ground of suspicion against the Plaintiff and therefore they did not bind him over to the Sessions to answer the same Accusation After this the Defendants made severall motions to the Plaintiff that he would give unto them 300l. and so he should be acquitted and there should be no proceeding against him and because the Plaintiffe refused so to do they told him that divers Courtiers had begged his Estate of the King and that the same was granted unto them when as in truth there was not any thing moved to any Courtier of any such matter but all this was said in a shew only to the end they might get great sums ef mony from him And in that matter they layed the scandall upon S. Rob. Car then Viscount Rochester that he was made privy to it who then was the Kings Maj. great Favorite And when all this could not prevail to gain any Composition from the Plaintiff the Defendants did prefer a Bill of Indictment at the Assizes in Kent against the Plaintiff and there upon Evidence given unto the Grand Jury they found an Ignoramus upon the Bill and divers other plots and divises were contrived by the Defendants all to the end the Plaintiff might lose his life his estate And this matter came to Sentence before the Lords and the Bill proved in every point and circumstance as well by the confession of the Defendants themselves as by divers writings depositions of witnesses and letters read and shewed in open Court and it was said by the whole Court of Lords in this case that this was a very great offence and an offence in Capite and that if such
the case which implyed their opinions to be for the Universitie And 21. H. 7. was vouched That the Patronage was only matter of favour and was not a thing valuable And in this case Cook chief Justice said That Apertus haereticus melius est quam fictus Catholicus Mich. 11. Jacobi in the Common Pleas. 310 BOND and GREEN's Case AN Action of Debt was brought against an Administrator the Defendant shewed how that there were divers Judgments had against him in 〈◊〉 Aâ—d â—â—so that there was another Debt due by the Testator which was assigned over unto the Kings Majesty and so pleaded That he had fully Administred Barker Serjeant took Exception to the pleading because it was not therein shewed that the King did assent to the Assignment and also because it was not shewed that the Assignment was enrolled The Court said nothing to the Exceptions But whereas he Defendant as Administrator did alledge a Retayner in his own hands for a debt due to himselfe The opinion of the whole Court was that the same was good and that an Administrator might retayne to satisfie a debt due to himselfe But it was agreed by the Court That an Excecutor of his own wrong should not Retayne to satisfie his own debt See to this purpose C. 5. part Coulters Case Mich. 11. Jacobi in the Common Pleas. 311 STROWBRIDG and ARCHERS Case IN An Action of debt upon a Bond the Defendant was Outlawed And the Writ of Exigent was viz. Ita quod habeas corpus ejus hîc c. whereas it ought to be coram Justiciariis nostris apud Westminster And for that defect the utlagary was reversed and it was said that it was as much as if no Exigent had been awarded at all And upon the Reversall of the utlagary a Supersedeas was awarded and the party restored to his goods which were taken in Execution upon the Capias utlagatum It was also resolved in this Case That if the Sheriffe upon a Writ of Execution served doth deliver the mony or goods which are taken in Execution to the Plaintiffs Atturney it is as well as if he had delivered the same to the Plaintiff himself for the Receipt by his Atturney is in Law his own Receipt But if the Sheriff taketh goods in Execution if he keep them and do not deliver them to the paâ—â— at whose suit they are taken in Execution the party may have a new Execution as it was in the principal Case because the other was not an Execution with Satisfaction Mich. 11. Jacobi in the Common Pleas. 312 CHAVVNER and BOVVES Case BOwes sold three Licences to sell Wine unto Chawner who Covenanted to give him ten pounds for them and Bowes Covenanted that the other should enjoy the Licences It was moved in this Case whether the one might have an Action of Covenant against the other in such Case And the opinion of Warburton and Nichols Justices was That if a Man Covenant to pay ten pound at a day certain That an action of Debt lyeth for the money and not an action of Covenant Barker Serjeant said he might have the one or the other But in the principall Case the said Justices delivered no opinion 313 Note That this Day Cooke Chief Justice of the Common Pleas was removed to the Kings Bench and made Lord Chief Justice of England And Sir Henry Hobart who was the Kings Aturney generall was the day following made Lord Chief Justice of the Court of Common Pleas. Sir Francis Bakon Knight who before was the Kings Solicitor was made Atturney Generall And Mr Henry Yelverton of Grays-Inn was made the Kings Solicitor and this was in October Term. Mich. 11 Jacobi 1613. Mich. 11. Jacobi In the Common Pleas. 314 THis Case was put by Mountague the Kings Serjeant unto the Lord Chief Justice Hobart when he took his place of Lord Chief Justice in the Common Pleas viz. Tenant in tail the Remainder in taile the Remainder in Fee Tenant in tail is attainted of Treason Offence is found The King by his Letters Patents granteth the lands to A who bargaineth and selleth the land by Deed unto B. B. suffers a common Recovery in which the Tenant in tail is vouched and afterwards thâ— Deed is enrolled And the question was Whether it was a good Bar of the Remainder And the Lord Chief Justice Hobart was of opinion That it was no barre of the Remainder because before enrollment nothing passed but only by way of conclusion And the Bargainee was no Lawfull Tenant to the Precipe Mich. 11. Jacobi in the Common Pleas. 315 WHEELER's Case IT was moved for a Prohibition upon the Statute of 5. E. 6. for working upon Holy days and the Case was That a man was presented in the spirituall Court for working viz. carriage of Hay upon the feast day of Saint John the Baptist when the Minister preached and read divine service and it was holden by the whole Court of Common Pleas That the same was out of the Statute by the words of the Act it self because it was for necessity And the Book of 19 H. 6. was vouched That the Church hath authority to appoint Holy days and therefore if such days be broken in not keeping of them Holy that the Church may punish the breakers therof But yet the Court said That this day viz. the Feast day of Sr John the Baptist was a Holy day by Act of Parliament and therefore it doth belong unto the Judges of the Law whether the same be broken by doing of such work upon that day or not And a Prohibition was awarded Mich. 11 Jacobi in the Common Pleas. 316 REARSBY and CUFFER's Case IT was moved for a Prohibition to the Court of Requests because that a man sued there by English Bill for money which he had layd out for an Enfant within age for his Meat drink necessary apparel and set forth by his Bill that the Enfant being within age did promise him to pay the same And a Prohibition was awarded because as it was said he might have an action of Debt at the common Law upon the contract for the same because they were things for his necessary livelihood and maintenance And it was agreed by the Court That if an Infant be bounden in an Obligation for things necessary within age the same is not good but voidable Quaere for a difference is commonly taken When the Assumpsit is made within age and when he comes to full age For if he make a promise when he cometh of full age or enters into an Obligation for necessaries which he had when he was within age the Law is now taken to be that the same shall binde him But see 44. Eliz. Randals Case adjudged That an Obligation with a penaltie for money borrowed within age is absolutely void Mich. 11. Jacobi in the Common Pleas. 317 SMITH's Case SMith one of the Officers of the Court of Admiralty was committed by the Court of Common Pleas to the prison of
is in the wife but the cause thereof is because it was once coupled with a possession C. 7. part Nevils Case There was a question whether an Earldom might be entailed and forfeited for Treason which is a thing which he hath not in possession nor use but is inherent in the blood And there resolved that the same cannot be forfeited as to be transferred to the King but it is forfeited by way of discharge and exoneration 12 Eliz. Dyer the Bishop of Durhams Case There if it had not been for the saving the Regal Jurisdiction of the Bishop had been given to the King by the Statute of 26 H. 8. This Statute of 26 H. 8. was made for the dread of the Traitor For the times past saw how dangerous Traitors were who did not regard their lives so as their lands might discend to their issue It was then desperate for the King Prince and Subject For the time to come it was worse The Law doth not presume that a man would commit so horrid an act as Treason so it was cited by Mr. Crook who cited the case That the King cannot grant the goods and lands of one when he shall be attainted of Treason because the Law doth not presume that he will commit Treason If the Law will not presume it wherefore then were the Statutes made against it If the Land be forfeited by the Statute of 26 H. 8. much stronger is it by the Statute of 31 H. 8. But then admit there were a Remitter in the Case yet by the Office found the same is defeated Without Office the Right is in the King Com. 486. c. 5. part 52 where it is said There are two manner of Offices the one which vests the estate and possession of the Land c. in the King where he had but a Right as in the case of Attaindor the Right is in the King by the Act of Parliament and relates by the Office Com. 488. That an Office doth relate 38 E. 3. 31. The King shall have the mean profits The Office found was found in 33 Eliz. and the same is to put the King in by the force of the Attaindor which was 29 H. 8. and so the same devests the Remitter Tenant in tail levieth a Fine and disseiseth the Conusee and dyeth the issue is remitted then proclamations pass now the Fine doth devest the Remitter C. 1. part 47 Tenant in tail suffereth a common Recovery and dyeth before Execution the issue entreth and then Execution is sued the Estate tail is devested by the Execution and so here in our Case it is by the Office C. 7. part 8. Tenant in tail maketh a Lease and dyeth his wife priviment ensient without issue the Donor entreth the Lease is avoided afterwards a Son is born the Lease is revived Com. 488. Tenant in capite makes a Lease for life rendring rent and for non-payment a re-entry and dyeth the rent is behind the heir entreth for non-payment of the rent and afterwards Office is found of the dying seised and that the land is hoâ—den in capite and that the heir was within age In the case the Entry for the Condition broken was revived and the Estate for life revived 3 E. 4. 25. A Disseisor is attainted of Felony the Land is holden of the Crown the Disseisee entreth into the Land and afterwards Office is found that the Disseisor was seised the Remitter is taken out of the Disseisee which is a stronger case then our Case for there was a right of Entire and in our Case it is but a right of Action which is not so strong against the King And for these Causes he concluded That the Judgment given in the Court of Pleas ought to be reversed And so prayed Judgment for the Lord of Sheffield Plaintiffe in the Writ of Error This great Case came afterwards to be argued by all the Judges of England And upon the Argument of the Case the Court was divided in opinions as many having argued for the Defendant Ratcliffe as for the Plaintiffe But then one new Judge being made viz. Sir Henry Yelverton who was before the Kings Sollicitor his opinion and argument swayed the even ballance before and made the opinion the greater for his side which he argued for which was for the Plaintiffe the Lord Sheffield And thereupon Judgment was afterwards given That the Judgment given in the Court of Pleas should be reversed and was reversed accordingly And the Earl Lord Sheffield now Earl of Mulgrave holdeth the said Castle and Mannor of Mulgrave at this day according to the said Judgment Note I have not set here the Arguments of the Judges because they contained nothing almost but what was before in this Case said by the Councel who argued the Case at the Bar. Pasch 21 Jacobi in the Kings Bench. 418. IT was the opinion of Ley Chief Justice Chamberlain and Dodderidge Justices That a Defendants Answer in an English Court is a good Evidence to be given to a Jury against the defendant himself but it is no good Evidence against other parties If an Action be brought against two and at the Assises the Plaintiffe proceeds only against one of them in that case he against whom the Plaintiffe did surcease his suit may be allowed a Witnesse in the Cause And the Judges said That if the Defendants Answer be read to the Jury it is not binding to the Jury and it may be read to them by assent of the parties And it was further said by the Court That if the party cannot find a Witnesse then he is as it were dead unto him And his Deposition in an English Court in a Cause betwixt the same parties Plaintiffe and Defendant may be allowed to be read to the Jury so as the party make oath that he did his endeavour to find his Witnesse but that he could not see him nor hear of him Pasch 21 Iacobi in the Kings Bench. 419. THe Husband a wife seised of Lands in the right of the wife levied a Fine unto the use of themselves for their lives and afterwards to the use of the heirs of the wife Proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make Leases for 21 years or 3 lives The wife being Covert made a Lease for 21 years And it was adjudged a good Lease against the husband although it was made when she was a Feme Covert and although it was made by her alone by reason of the Proviso Pasch 21 Jacobi in the Common-Pleas 420. NOte that Hobart Chief Justice said That it was adjudged Mich. 15 Jacobi in the Common-Pleas That in an Action of Debt brought upon a Contract the Defendant cannot wage his Law for part and confesse the Action for the other part And it was also said That so it was adjudged in Tart's Case upon a Shop-book And vide 24 H. 8. Br. Contract 35. A Contract cannot be divided
man and his heirs such Seat and he and his heirs have used to repair the said Seat If another will libell against him in the Spirituall Court for the same Seat he shall have a Prohibition And he said That he had seen a Judgement in 6. E. 6. That if Executors lay a Grave Stone upon the Testator in the Church or set up his Coat-armour in the Church If the Parson or Vicar doth remove them or carry them away that they or the heir may have their Action upon the Case against the Parson or Vicar Note in the principall no Prohibition for the reasons before Trinit 10. Jacobi in the Common Pleas. 287 The Archbishop of York Sedgwick's Case THe Archbishop of York and Doctor Ingram brought and exhibited a Bill in the Exchequer at York upon an Obligation of seven hundred pound and declared in their Bill in the nature of an Action of Debt brought at the common Law which matter being shewed unto the Court of Common Pleas by Sedgwick the Defendant there A Prohibition was awarded to the Archbishop and to the said Court at York And Cook chief Justice gave the reasons wherefore the Court granted the Prohibition 1. He said because the matter was meerly determinable at the common Law and therefore ought to be proceeded in according to the course of the common Law 2. Although the King hath granted to the Lord President and the Councel of York to hold pleas of all personall Actions yet he said they cannot alter the form of the proceedings For as 6. H. 7. 5. is The King by his Grant cannot make that inquirable in a Leet which was not inquirable there by the Law nor a Leet to be of other nature then it was at the common Law And in 11. H. 4. it is holden That the Pope nor any other person can change the common Law without a Parliament And Cook vouched a Record in 8. H. 4. That the King granted to both the Universities that they should hold plea of all Causes arising within the Universities according to the course of the Civil Law and all the Judges of England were then of opinion That that grant was not good because the King could not by his Grant alter the Law of the Land with which case agrees 37. H. 6. 26. 2. E. 4. 16. and 7. H. 7. But at this day by a speciall Act of Parliament made 13. Eliz. not printed The Universities have now power to proceed and judge according to the Civil Law 3. He said That the Oath of Judges is viz. You shall do and procure the profit of the King and his Crown in all things wherein you may reasonably effect and do the same And he said That upon every Judgement upon debt of forty pound the King was to have ten shillings paid to the Hamper and if the debt were more then more But he said by this manner of proceeding by English Bill the King should lose his Fine 4. He said That if it was against the Statute of Magna Charta viz. Nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum vel per legem terrae And the Law of the Land is That matters of fact shall be tried by verdict of twelve men but by their proceedings by English Bill the partie should be examined upon his oath And it is a Rule in Law That Nemo tenetur seipsum prodere And also he said That upon their Judgement there no Writ of Error lyeth so as the Subject should by such means be deprived of his Birth-right 5. It was said by all the Justices with which the Justices of the King's Bench did agree That such proceedings were illegall And the Lord Chancellor of England would have cast such a Bill out of the Court of Chancery And they advised the Court of York so to do and a Prohibition was awarded accordingly Trinit 10. Jacobi in the Common Pleas. 288 Doctor HUTCHINSON's Case DOctor Hutchinson libelled in the Spirituall Court against one of his Parishioners for Tithes The Defendant there shewed that the Doctor came to the Parsonage by Symony and Corruption And upon suggestion thereof made in the Common Pleas prayed a Prohibition Doctor Hutchinson alledged that he had his pardon and pleaded the same in the Spirituall Court And notwithstanding that the Court granted a Prohibition because the Pardon doth not make the Church to be plena but maketh the offence onely dispunishable But in such case If the King doth present his presentee shall have the Tithes Trinit 10. Jacobi in the Common Pleas. 289 NOte by Cook Chief Justice that these words viz. Thou wouldest have taken my purse from me on the high way are not actionable But Thou hast taken my money and I will carry thee before a Justice lay felony to thy charge are actionable Mich. 11. Jacobi in the Common Pleas. 290 HATCH and CAPEL's Case IN an Action upon the Case upon an Assumpsit brought against the Defendant The Plaintiffe declared How that one Hallingworth who was the Defendants Husband was indebted unto the Plaintiffe eight pound ten shillings for beer and that he died and that after his death the Plaintiff demanded the said mony of the Defendant his wife and she in consideration that he would serve her withbeer promised that she would pay unto the said Plaintiff eight pound ten shillings and for the rest of the beer at such a day certain And the Plaintiffe did averr That he did sell and deliver to her Beer and gave her day for the payment of the other money as also for the Beer delivered unto her and that at the day she did not pay the Money Cook and all the other Justices agreed That the Action would well lie and that it was a good Assumpsit and a good consideration for they said That the forbearance of the money is a good consideration of it selfe and they said That in every Assumpsit he who makes the promise ought to have benefit thereby and the other is to sustain some losse And judgement was given for the Plaintiff Mich. 11. Jacobi in the Common Pleas. 291 NORTON and LYSTERS Case IN the Case of a Prohibition the Case was this Queen Elizabeth was seised of the Manor of Nammington which did extend into four Parishes viz. Stangrave and three other And the Plaintiff shewed That he was seised of three Closes in Stangrave and prescribed That the said Queen and all those whose Estate he hath in the said Closes had a Modus decimandi for the said three Closes and for all the Demeanes of the said Manor in Stangrave And whether the Venire facias should be de parochia de Stangrave or of the Manor was the question And it was resolved by the whole Court That the Visne should be of the Parish of Stangrave and not of the Manor And the Difference was taken when one claimes any thing which goes unto the whole Manor and when only to
expressly that he recover treble damages yet because it did amount to so much if the words of the sentence be joyned together It was directed that a special Prohibition in which the Statute and the whole matter is to be mentioned be awarded And in this case it was agreed by the whole Court That the Statute of 2 â— 6. for substraction of Tythes meerly doth not give any damages but if the Tythe be first set forth and then they are substracted there because the Parson had once an interest in them he shall recover treble damages And the principal Case was resembled by Warburton Justice to the case of Waste that if the Jury give damages 20l l there the Court shall treble the damages and make the same 60l and so it was done in the principal case Hill 11 Iacobi in the Common-Pleas 342. GIPPE's Case A Man Libelled for Tythes in the Spiritual Court the Defendant alleadged a Modus Decimandi and thereupon had a Prohibition and afterwards the Plaintiffe in the Prohibition did not prove his suggestion within six months and therefore the Court granted a Consultation because the Law hath appointed a certain time within which time the suggestion is to be proved Otherwise the Parson should be delayed and prejudiced in his Tythes and so it was adjudged in Parson Bugs case Mich. 8. Jacobi in this Court Hill 11 Jacobi in the Kings Bench. 343. CROSSE and STANHOP's Case AN action of false Imprisonment was brought against the Defendant and two other Justices of Peace of the County of York The Defendants justified the Imprisonment by reason of the Statute of 1 M. cap. That it should not be lawful for any maliciously and contumeliously to molest or disquiet any person or persons which are Preachers or after should be Preachers And the Plaintiffe demurred upon the Plea in Bar generally and two Exceptions were taken to the Pleading 1. Because the words of the Statute were misrecited for the words of the Statute are in the disjunctive maliciously or contumeliously And the opinion of the Court was that when the precedent subsequent words disjunctive are all of one sense that the word Or is all one with the copulative but where they are of divers natures as by word or deed it is otherwise The second Exception was That where the words were by the greater part of the Justices the Recital was by the better part of the Justices But notwithstanding these Exceptions it was adjudged against the Plaintiffe Pasch 12 Iacobi in the Kings Bench. 344. CARTWRIGHT's Case CArtwright prayed a Prohibition and the Case was this A. lying sick upon his bed made his Will and afterwards said unto his Executors named in the Will I will that B shall have twenty pounds more if you can spare it And the Executor answered and said Yes forsooth but no Codicil was made of the same Legacie And a Bill was preferred in the Spiritual Court for the Legacie whereupon the Executor prayed a Prohibition And it was holden by this Court that although this Court hath not power to hold plea of the thing Libelled for there in the Spiritual Court yet it hath power to limit the Jurisdictions of other Courts and if they abuse their authority to grant a Prohibition Vid. 2 H. 4. 10. But it was doubted whether the Spiritual Court as this case is might give remedy to the person for the Legacie For the same not being annexed to the Will by a Codicil it was but fidei commissum and so the doubt was Whether the Spiritual Court might hold plea of it For if they cannot hold plea of it then in this case a Prohibition may be lawfully granted although that this Court have not power nor jurisdiction of the thing it self The Court would be advised of it and therefore it was adjourned Pasch 12 Iacobi in the Kings Bench. 345. Sir CHRISTOPHER HEYDON's Case GOdsall Shepard Smith brought an Assise of Novel disseisin against Sir Christopher Heydon which was tryed at the Assises in Norfolk before Sir Tho. Fleming Lord Chief Justice of England and Justice Dodderidge which was found for the Plaintiffs and Judgment was given for them in the Court of Common-Pleas And thereupon Sir Christopher Heydon brought a Writ of Error in the Kings Bench and assigned for Error That whereas the Judgment was given upon his own Confession the Judgment was entred That the Plaintiffs did recover per visum Recognitorum Assise predict And after argument in the Kings-Bench it was adjudged by the whole Court that the Judgment given in the Common-Pleas should be affirmed notwithstanding the Error assigned And now to reverse the Judgment given in the Kings Bench he brought another Writ of Error in Parliament Cook Chief Justice said That the Clarks of the Chancery ought not to make a Writ of Error to the Parliament unlesse they have the Kings licence so to do And it was agreed by the whole Court that a Writ of Error lieth in Parliament upon the Transcript of the Record without bringing of the Record it self in Parliament For the Parliament is holden at the Kings pleasure and may be dissolved before the Errors be discussed and so the Record it self cannot be brought here again because the Parliament which is a higher Court was once possessed of it 8 H. 5. Error 88. The same Law in Error upon a Judgment given in Ireland 5 E. 2. Error 89. where only the Transcript of the Judgment is removed For if the Record it self should be brought into England it might be that before it came hither it shall be drowned in the sea and it is dangerous to commit a Record to the mercy of the winds and sea And Error lieth to reverse a Fine upon the Tenor of the Record and it is not necessary to bring the Fine it self because there is not any Chirographer in this Court to examine it At another day the same Term George Crook and Noy took five Exceptions to the said Writ of Error the first was Because the Writ doth recite the Judgment to be in Assis capt coram Tho. Fleming Capital Justiciar ad Placita Johannem Dodderidge milit unum Justic ad Placit coram nobis tent And the Exception was because that this latter addition was not to them both Dodderidge Justice held that the same was no good Exception to abate the Writ of Error because the omission is only in the addition of Honour which is surplusage and the Person is certain and his power appears to take the Assise and that Exception is not in point of jurisdiction but of denoting of the person and therefore is like the Case in 19 Eliz. Dyer 356. which is a stronger Case and 6 E. 6. Dyer 77. Haughton and Cook contr But Crook Justice did agree with Dodderidge that the addition of the same was but surplusage and that the Writ had been well enough without it Cook Chief Justice held the contrary For then he varieth from their
Contracts made upon the Sea by them or their Factors And for the Antiquity of the Court v. t' E. 1. sitz t' Annuity 7 R. 2. t' trespas in Statham And so long as there hath been any Commerce and Traffique by this Kingdom so long there hath been a Court of Admiralty 3. He said The Court of Admiralty is no Court of Record in which a Writ of Error lieth 37 H. 6. acc ' 4. He considered the place And that he said was of things super altum mare only as appeareth by the Stat. of 13 R. 2. And he said That all the Ports and Havens within England are infra corpus Comitatus and vouched 23 H. 6. 30 H. 6. Hollands Case who was Earl of Exeter and Admiral of England who because he held plea in the Court of Admiralty of a thing done infra Portam de Hull damages were recovered against him of 2000l And he said That if the Court and Civil Law be allowed then he said the Customs of that Court ought to be allowed and he said That the Custome of the Civil Law is That in no case the Surety is chargeable when the Principal is sufficient And he agreed with the Doctors That the word Haeredes ought to be in the Stipulation because those beyond the Seas did not take any cognisance of the word Executors Also he said That they may take the body in Execution which are for the most part the Masters of the ships and Merchants who are transeuntes and therefore if they could not arrest their bodies they might perhaps many times lose the benefit of their suits But he said that in no case they might take forth Execution upon Lands And he said That if a Contract be made in Paris in France it shall be tryed either by the Common Law or by the Law of France and if it be tryed here then those of France shall write to the Justices of England and shall certifie the same unto them And he said That in Sir Robert Dudley's Case it was allowed for good Law where a Fine was levied and acknowledged in Orleance in France which was certified and allowed for good by the Common Law here in England But he said That the Civil Law could not determine of the Fine And to conclude he said That no Custome can be good which is against an Act of Parliament The principal Case was adjourned Mich. 13 Jacobi in the Kings Bench. 360. The MAIOR of YORK'S Case IN an Action of False Imprisonment brought It was holden by the whole Court 1. That no man can claim to hold a Court of Equity viz of Chancery by Prescription because every Prescription is against Common Right and a Chancery-Court is founded upon Common Right and is by the Common Law 2. It was holden per Curiam That the King by his Charter cannot grant to another any of the Customs of London But the like Liberties Franchises and Customs as London holdeth or useth the King by his Letters Patents may grant Quaere because the Customs in London are confirmed by Act of Parliament Mich. 13 Jacobi in the Kings Bench. 361. LAMBERT and SLINGBY'S Case A Man brought an Action of Debt as Administrator and took the Defendants body in Execution The Sheriffe suffered him to escape And afterwards a Will was found by which Will the said Administrator is nominated Executor The Question now was Whether he might maintain an Action against the Sheriffe for the Escape as Executor when he was but Administrator at the time and it was the opinion of the Court that the action of Debt against the Sheriff upon the Escape would lie and that the same Debt should be assets in the Executors hands And it was holden cleer That the Executor of an Executor might have Debt upon the Escape for that he is Executor to the first Testator and therefore à fortiori the Action in the principal Case would lie Mich. 13 Iacobi in the Common-Pleas 362. IT was holden by the Court That if a man present by Usurpation to my Advowson within six moneths I may have a Quare Impedit But after the six moneths past if the Church become void I cannot present but am put to my Writ of Right of Advowson And that if a man usurpeth upon the King he is put to his Quare Impedit within the six moneths And it was holden That a double Usurpation upon the King doth put him to his Writ of Right v. 22 24 E. 3 acâ— Pasch 13 Iacobi in the Kings Bench. 363. OWEN alias COLLIN'S Case JOhn Owen alias Collins of Godstow in the County of Oxford was indicted and arraigned of High-Treason for speaking these traiterous English words at Sandwich in the County of Kent viz. If the King be excommunicate by the Pope it is lawfull for every man to kill him and it is no murder For as it is lawfull to put to death a man that is condemned by a Temporal Judge so it is lawfull to kill the King if he be excommunicate by the Pope For that is the execution of the Law and this of the Popes supreme sentence The Pope being the greater includes the King being the lesser To which words he pleaded Not guilty And the Evidence to the Jury was the Major of Sandwich a Parson of the same Town and the Servant of the Town-Clark And this was the sum of the Evidence That the said Owen coming from S. Lucar in Spain spake the said words to divers persons who told them to the Major whereupon the said Major had conference with Owen and then he spake the like words unto the Major and thereupon the Major tendred unto him the Oath of Allegiance which he refused to take and he put his hand to awriting containing the said words as his opinion and further said That if he had twenty hands he would put them all to it The Exception which Owen took unto the Evidence given against him was That he did not speak of the King of England But the same was said to be a simple Exception For before he spake the words to the Major the Major asked him if he were an Englishman or not To which he answered that he was and then after he spake the said words to the Major which must necessarily have reference to the speeches which were before betwixt him and the Major And Cook Chief Justice said That if he had not spoken of the King of England but of the King generally yet it had included the King of England The matter of his Indictment of Treason was not grounded upon the Statute of Supremacie but upon the Common-Law of which the Statute of 25 â— 3. is but an Explâ—nation which was his intent to compass the death of the King And he said That notwithstanding that the words as to this purpose were but conditional viz. If he were Excommunicate yet he said it was High-Treason For proof of which two Cases were cited The Duke of Buckingham in