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
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
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
And if Rent be due and payable unto me by my Lessee for years the same may be taken for the Kings Debt and the special matter shall be a good barr in an Avowry for the Rent 38. E. 3. 28. A Prior Alien was indebted to the King for his Farm Rent And being sued for the same he shewed That there was a Parson who held a certain portion of Tythes from him which were part of the Possessions of the same Priory which he kept in his hands so as he could not pay the King his Farm-Rent unlesse he might have those Tythes which were in the Parsons hands Wherefore a Writ was awarded against the Parson to appear in the Exchequer and to shew cause why he should not pay the same to the King for the satisfying of the Kings Rent And there Skipwith Justice said That for any thing which toucheth the King and may turn to his advantage to hasten the Kings business that the Exchequer had jurisdiction of it were it a thing Spiritual or Temporal V. 44 E. 3. 43 44. the like Case but there it is of a Pension And the Case of 38 Ass 20. was the Case for Tythes See also 12 E. 3. Swalds Case to the same purpose If two Coparceners be in ward to the King upon a suggestion that one of them is indebted to the King the staying of his Livery shall be for his moytie untill the King be satisfied his debt but the other sister shall have Livery of the other moytie which belongs unto her Fitz. N. 5. 263. a. Mich 19 E. 3. and Hill 20. E. 3. which was one and the same Case The Kings Debtor brought a Quo minus in the Exchequer against his Debtor the Defendant appeared And the Plaintiffe afterwards would have been Nonsuit but the Court would not suffer him so to be And it was there said That a Release by the Kings Debtor unto his Debtor would not discharge the Kings Debtor as to that Debt In a Quo minus in the Exchequer upon a Debt upon a simple Contract the Defendant cannot wage his Law because the King is to have a benefit by the suit although the King be no party to the suit C. 4. par 95. The fourth Prerogative which the King hath is That the King shall have an Accompt against Executors because the Law there maketh a privity it being found by matter of Record that the Testator was indebted to the King which Record cannot be denied But in the Case of a common person an Accompt will not lie against Executors for want of privity The Accompt which the King brings is ad computandum ad Dominum Regem c. without setting forth how the party came liable to accompt But a common person in his accompt brought ought to shew how that the party was Receiver Bailiff c. If a man doth entermeddle with the Kings Treasure the King pretending a title to it he shall be chargeable for the same to the King C. 11. part 89. the Earl of Devonshire's case The Master of the Ordnance pretending that the old broken and unserviceable Ordnance belonged unto him by reason of his Office procured a Privy-seal c. and afterwards disposed of them to his own use and dyed And his Executor was forced to accompt for them Sir Walter Mildmay's Case Mich. 37. 38 Eliz. Rot. 312. in the Exchequer Sir Walter Mildmay was Chancellor of the Exchequer and suggested unto the Lord Treasurer of England That his Office was of great attendance and desired the Lord Treasurer that he would be pleased to allow unto him 100l. for his dyet and 40l. per annum for his attendance which the Lord Treasurer did grant unto him and he enjoyed it accordingly and afterwards dyed and his Executors were forced to accompt for it and to pay back the mony for all the time that their Testator received it C. 11. part 90 91. there is cited That Sir William Cavendish was Treasurer of the Chamber of King H. 8. E. 6. and Queen Mary and that he was indebted to K. E. 6. and to Q. Mary and that being so indebted he purchased divers lands and afterwards aliened them and took back an estate therein to himself and his wife and afterwards dyed without rendring any Accompt the Terre-Tenants of the land were charged to answer to Q. Elizabeth for the monies to which they pleaded the Queens special Pardon and it was in conclusion said That the Pardon was a matter of grace ex gratia but in Law the Terre-Tenants were chargeable to the said Queen for the monies v. Com. 321. 5 Eliz. Dyer 244 245. in the Exchequer Mich. 24. E. 3. Rot. 11. ex parte Rememb Regis Thomas Farel Collector of the Fifteenths and Tenths being seised of lands in Fee and being possessed of divers goods and chattels at the time when he entred into the said Office being then indebted to the King did alien them all and afterwards dyed without heir or Executor And a Writ went out unto the Sheriffe to enquire what lands and tenements goods and chattels he had at the time he entred into the said Office and Processe issued forth against the Terre-Tenants and the Possessors of his goods and chattels ad computand pro collectione predict ad respondendum satisfaciendum inde Domino Regi V. Dyer 160 50 Ass 5. A notable Case to this purpose Mich. 30. E. 3. rot 6. William Porter Mint-Master did covenant with the King by Indenture enrolled That for all the Bullion which should be delivered ad Cambium Regis pro Moneta faciend that mony should be delivered for it within eight dayes which Covenant he had broken and therefore the King paid the Subject for the Bullion And afterwards because John Walweyen and Richard Piccard duxerunt praesentaverant dict William Porter in officium illud tanquam sufficientem and that they offered to be Sureties for him but were not accepted of which they did confesse Ideo consideratum est quod predict Walweyen Piccard onerentur erga Dominum Regem And they afterwards were charged to satisfie the King for all the monies which the King had paid for the said Porter And although that none of the Kings treasure came to their hands nor they had not any benefit as appeared by any matter in the Case yet because they were the means and causers that the King sustained damage and losse they were adjudged to be chargeable to the King C. 11. par 93. this Case is there cited Upon these Cases vouched by me I make divers Observations 1. I observe That from Age to Age what care the Judges had for the Advancing and the recovering of the Kings Debts because Thesaurus Regis est vinculum Pacis Bellorum nervus And it is the slowing fountain of all bounty unto the Subject 2. I observe That the King hath a Prerogative for the Recovery of Debts due unto him 3. I observe That although the Debt due to the King be
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
King And as to the second Point they held the Law to be cleer That after that he hath retained as many as by the Law he may retaine and they are sub Signo and Sigillo testified to bee his Chaplains and by reason thereof have qualification to have two Benefices and have two Benefices by vertue thereof although that afterwards they are removed for displeasure or otherwise out of service yet during their lives their Master cannot take other Chaplains which may by this Statute be qualified for so every Baron might have infinite of Chaplains which might be qualified which was not the meaning of the Statute and of that opinion is the Lord Dyer in his Reports And as to the third Point they held That although he were removed from the Domesticall Service of the Family yet hee did remaine Chaplain at large and so a Chaplain within the Statute And further the Opinion of the Court was in this Case That if the party qualified to die the Queen or other Master mentioned in the Statute might qualifie another againe Quod nota The Case was entred Pasch 28. Eliz. Rot. 1130. Scot. Mich. 28 29. Eliz. in the King 's Bench. 48. ONE made a Deed in this forme Noverinit c. that I have demised and to Farme letten all my Lands in D. to I. S. and his Wife and to the Heirs of their two Bodies for thirteen years And it was moved That it was an Estate in taile and 5. E. 3. and 4. H. 4. were vouched But Clenche Justice who was only present in Court was of Opinion That it is but a Lease for years although it was put that Livery was made secundùm formam chartae and his said That if one make a Lease for forty years to another and his Heirs and makes Livery that it is but a Lease for years and he said It is no Livery but rather a giving of Possession But he would have it moved again when the other Justices came Mich. 28 29. Eliz. in the King 's Bench. 49 AN Action upon the Case was brought against an Inn-keeper upon the Custome of England for the safe keeping of the things and Goods of their Guests and he brought his Action in another County then where the Inn was and it was said by Clench Justice That if it be an Action upon the Case upon a Contract or for words and the like transitory things that it may be brought in any County but in this Case he said It ought to be brought where the Inn is Mich. 28 29. Eliz. in the King 's Bench. 50. ONE charged two men as Receivers The Question was Whether one of them might plead Ne unque son Receiver and it was moved That he could not but ought to say Nâ— unque son Receiver absque hoc that he and his Companion were Receivers Clenchè and Suit Justices held That it was well without Traverse and Vide 10. E. 4. 8. Where an Account was brought against one supposing the receipt of Two hundred Marks by the hands of I. P. and R. C. The Defendant as to One hundred Marks pleaded That he received it by the hands of I. P. tantùm without that that he received it by the hands of I. P. and R. C. And as to the other One hundred Marks he received them from the hands of R. C. only without that that he received I. P. and R. C. And there it was doubted Whether it be good or not But in the end of the Case by Fitz. Accompt 14. If an Account be brought against two and one saith He was sole his Receiver and hath accounted before such an Auditor if the Plaintiffe answer unto his Bar he shall abate his Writ because the Receipt is supposed to be a joint Receipt And it is not like unto a Praecipe quod reddat against two Mich. 28 29. Eliz. in the King 's Bench. 51. AN Action upon the Case was brought against one for that he said to another I will give thee Ten Pound to kill such a one and the Question was Whether the Action would lie It was said by Sir Thomas Coâ—kaine that such a Lady had given poyson to such a one to kill her Child within her that the words were not Actionable Also one said That another had put Gun-Powder in the Window of a house to fire such a house and the house was not fired adjudged that the words were not Actionable The Case was betwixt Ramsey of Buckinghamshire and another who said That he lay in wait to have killed him it was found for the Plaintiffe and he had Forty Pound Damages given him But of the Principall Case the Court would advise Mich. 28 29. Eliz. in the Kings Bench. 52 IT was holden by the Court That the Habeas corpus shall be alwayes directed to him who hath the custody of the Body Therefore whereas in the case of one Wickham it was directed to the Maior Bailiffs and Burgesses Exception was taken unto it because the pleas were holden before the Maior Bailiff and Steward but the Exception was dissallowed But otherwise it is in a Writ of Error for that shall be directed to those before whom the Judgment was given In London the Habeas corpus shall be directed Majori Vicecomit London because they have the custodie and not to the whole Corporation But I conceive that the course is that the Writ is directed Majori Aldermannis Vicecomitibus c. Mich. 28 29 Eliz. In the Common Pleas. 53 MARSH and PALFORD's Case OWen moved this Case That one had an upper chamber in Fee and another had the neather or lower part of the same house in Fee and he who had the upper chamber pulled it down and he which had the lower room would not suffer him to build it up again But the opinion of the Justices was that he might build it up again if he did it within convenient time And there it was said that it had been a Question Whether a man might have a Free-hold in an upper chamber Mich. 28 29 Eliz. in the Kings Bench. 54. A Question was moved to the Court Whether Tithe should be paid of Heath Turf and Broom And the opinion of Suit Justice was That if they have paid tithe Wool Milk Calves c. for their cattell which have gone upon the Land that they should not pay tithe of them But some doubted of it and conceived That they ought to say that they have used to pay those Tithes for all other Tithes otherwise they should pay tithe for Heath Turf Broom c. Mich. 28 29. Eliz. in the Kings Bench. 55. TWo Parsons were of two severall Parishes and the one claimed certain Tithes within the Parish of the other and said That he and all his Predecessors Parsons of such a Church scil of D. had used to have the Tithes of such Lands within the Parish of S. and that was pleaded in the Spiritual Court and the Court was moved for to grant
Commission which is their authority but if it had been left out in their Commission then the Writ had been good enough And he said that when a man meddles with a thing which is but surplusage which he needed not to do he must recite the same substantially otherwise his plea will be vitious C. 4 par Palmers case And when he maketh Tho. Fleming Capit. Justic ad Placita indefinitely he varieth from the truth for the stile is Tho. Fleming Capit. Justic ad Placita coram Rege tent Haughton Justice acc ' and he said that in every Writ of Error which is to remove a Record three things ought to be expressed 1. Mention is to be made before what person it was taken as the book is in 28 H. 6. 11. 2. It is to mention betwixt whom it was 9 H. 6. 4. 3. The manner of the caption is to be mentioned whether by Writ or without Writ 2 R. 3. 2 3. and this Writ faileth in the first of them therefore he concluded that the VVrit should abate Cook Chief Justice was of the same opinion and agreed that Misnosmer and variance are not to be favoured if they be not substantial and essential quae dant esse rebus and he said that the variance in this case is of such nature For in many Records yet extant and in the time of King H. 3. it is to be found that the Chief Justice of England did sit and give Judgment in the Common-Pleas and in the Exchequer and so then Capital Justic ad Placita is too general because he might sit and give Judgment in any of the said Courts The second Exception was because that the VVrit saith Assisa capta c. and doth not say per breve nor sine breve nor doth say secundum legem consuetudinem c. For in 43 Eliz. in the Case betwixt Cromwell and Andrews it was adjudged not good to say That such an Action came into the Common-Pleas out of the Country and doth not shew that it came by adjournment or by Certlorari or Mittimus To which it was answered by Damport Councellor for the Plaintiff that it is a strong intendment that the Assise was taken per breve and therefore it needed not to be expressed because it is a general and not a special Assise Crook Justice The Exception is good for it is so general that it cannot be intended which Assise it was For put case there were two Assises betwixt the same parties it cannot be known which Assise is intended And of the same opinion was Haughton Justice Dodderidge contrary and he said Notwithstanding the Exception the Record ought to be removed by the Writ For the Judges Conscience may be well satisfied which Record is to be removed And here the Record which is to be removed is so precisely shewed that no body can doubt of it which ought to be certified And there are Records removed by Writs of Error which are more dubious then this is v. 19 Eliz. Dyer 356. 20 E. 3. But in this case the Writ is much enforced by the words Sommon Capt. For in every Assise there are four Commands to the Sheriffe 1. Facere tenementum esse in pace to quiet the possession 2. Facere recognitionem or Recognit videre tentam 3. Summoneas 4. Ponas eos per vadios c. For which cause of necessity it must be meant an Assise per Breve The third Exception was because in the Writ it was not shewed who was Plaintiffe and who Defendant Dodderidge It is generally to be agreed That the Writ of Error ought to agree with the Record which Rule is taken in 3 H. 6. 26. C. 3. par the Marquess of Wincbesters Case But yet every Variance doth not abate this VVrit For if the variance be only in matter of circumstance as it is in this Case the VVrit shall not abate vid. 9 H. 6. 4. 4 5 Phil. Ma. Dyer 164. 2 Eliz. Dyer 173. 180. 28 H. 6. 11. 12. The fourth Exception was because it doth not shew the place of the Caption of this Assise but sayes generall in Com. Norfolk Haughton held that rather to be examinable in the Parliament then here The last Exception was because the VVrit is directed to Cook Chief Justice that he certifie the Record sub sigillo suo whereas it was said the Record it self was to come in Parliament and there a Transcript thereof is to be made and the Record to be remanded V. 22 E. 3. 23 Eliz. Dyer 357. 1 H. 7. 29. against the Book of Entries 302. To which it was answered That it is at the pleasure of the Parliament to have either the one or the other 22 E. 3. 3. 8 H. 5. Error 88. To which Cook agreed And note that upon this VVrit of Error a Supersedeas was fraudulently procured and a VVrit of Attachment issued forth against Bacon who procured it And the Supersedeas was disallowed because that another Supersedeas was granted in the first VVrit of Error And a man can have but one Supersedeas But the Question in this Case was Admitting that the VVrit of Error be good and not abateable If the same be a Supersedeas in it self And the Court doubted of that point For Cook Chief Justice said That he had viewed 26 or 27 VVrits of Error which were brought in Parliament where the first Judgment was disaffirmed and but one where the Judgment was affirmed and that is in 23 Eliz. Dyer 357. the Record of which cannot be found Et quod in praxi est inusitatum in jure est suspectum The Books where Error was brought in Parliament are 2 E. 3. 34 40 in the old print 22 E. 3. 3. 42 Ass pl. 22. 9 H. 5. 23. 1 H. 7. 29. 23 Eliz. Dyer 375. And it should be mischievous for delay for a Parliament is only to be summoned at the Kings pleasure Haughton Dodderidge and Crook held cleerly That this VVrit of Error was a Supersedeas in it self and that upon the Book of 8 E. 2. Error 88. 1 H. 7. 19. where it is said That the Justices did proceed to Execution after the Judgment affirmed in Parliament and therefore ex consequente sequitur not before And therefore the VVrit of Error is a Supersedeas that they cannot proceed But there is no President of it in the Register but a Scire facias fo 70. And the Court held That if a Supersedeas be once granted and determined in default of the party himself that he shall never have another Supersedeas but otherwise if it fail by not coming of the Justices Also Cook Chief Justice held That by this VVrit of Error in Parliament Sir Christopher Heydon could not have the effect of his suit because it is to reverse a Judgment coram Rege and so the Judgment given in the Common-Pleas stands firm and Sir Christopher Heydon is put to a new VVrit of Error in this Court for the Judgment
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
but in Francis Bigot which may be regained in due time Dyer 340. there was Scintilla juris as here in our Case 19 H. 8. 7. Where Tenant in tail maketh a Feoffment and the Feoffee levieth a fine and five years pass there it is said that the Issue in tail shall have five years after the death of Tenant in tail who made the Feoffment and the reason is because he is the first to whom the right doth discend This Case was objected against me yet I answer that Tenant in tail in that Case hath right but he cannot claim it by reason of his own Feoffment he cannot say he hath right but another may say he hath right In our Case Francis Bigot cannot say he hath a Right in him but another may say he hath a Right It is like where Tenant in Fee taketh a Lease for years by Deed Indented of his own Lands He during the years cannot say that he hath Fee yet all other may say that he hath the Fee C. 4. part 127. The King shall avoid the Feoffment for the benefit of a Lunatique which Feoffment the Lunatique had made and shall not the King avoid a Feoffment which a Lunatique hath made for his own benefit viz for the benefit of the King himself I conceive that he shall Secondly Admit the right be in the person viz. in Francis Bigot yet they object that it is a right of Action and so not forfeited If this right be in the person at the time of the Attainder it shall be forfeited if it be not in his person but in Nubibus yet it shall be forfeited Tenant in tail makes a Feoffment unto the use of himself and his wife in tail if the old right of entail rest or not in his person it is forfeited to the King 34 Eliz. this very Point was then adjudged Where Tenant in tail before the Statute of 27 H. 8. of Uses made a Feoffment unto the use of himself and his wife in tail It was resolved upon mature deliberation by all the Judges of England that the old Estate tail was in such case forfeited for Treason Set this Judgment aside yet it rests upon the Statute of 26 H. 8. A general Act for forfeiture for Treason and the particular Act of 31 H. 8. which was made for the particular Attaindor of Francis Bigot I will argue argue only upon the Statute 26 H. 8. which hath three clauses First to take away Sanctuary Secondly to provide that no Treason be committed and the Offender punished The third which clause I am to deal with which giveth the forfeiture of Lands of Inheritance c These three clauses do depend upon the Preamble It was high time to make this Statute For when H. 8. excluded the Pope he was to stand upon his guard And that year of 26 H. 8. there were five several Insurrections against the King therefore it was great wisdom to bridle such persons King Ed. 6. and Queen Mary repealed divers Statutes for Treason and Felony yet left this Statute of 26 H. 8. to stand in force Anno 5 E. 6. cap. 5. this Statute of 26 H. 8. somewhat too strict was in part repealed viz. That the Church lands should not be forfeited for the Treason of the Parson This third branch doth insist upon a Purview aâ—d a Saving and both agree with the Preamble The Purview is ample Every Offender and Offenders of any manner of High Treason shall forfeit and lose c. I observe these two words in the Statute shall Forfeit those things which are forfeitable and Lose those things which are not forfeitable But it shall be lost that the heir of the Offender shall not find it shall Forfeit and lâ—se to the King his heirs and successors for ever so it is a perpetual forfeiture shall forfeit all his Lands which includes Use Estate and Right by any right title or means So you have Estate Right Title and Use Here Francis Bigot shal forfeit the Castle and Mannor of Mulgrave unto the King his heirs and Successors and he must forfeit the Land Right Title and Use otherwise it cannot be to the King for ever and what is saved to strangers all shall be saved and what will you not save to the Offender and his heirs all his Lands Right c. as was saved to strangers It was objected that it was not an Act of Assurance but an Act of Forfeiture which is not so strong as an Act of Assurance I do not doubt of the difference but how much will that difference make to this Case doth the Statute goe by way of Escheat it doth not but in case of Petty Treason Land shall Escheat but when the Statute of 25 E. 3. speaketh of High Treason the words of the said Statute are Shall forfeit the Escheat to the King But is the Right devided from the King Truely no the word Forfeit take it in nomine or in natura is as strong a word as any word of Assurance Alienare in the Statute of West 2. cap. 1. Non habeant illi potestatem alienandi so non habent illi potestatem forisfaciendi is in the nature of a Gift Com. 260. Forfeiture is a gift in Law Et fortior est dispositio legis quam hominis and so as strong as any assurance of the partie If a Statute give the Land to the King then there needeth not any Office 27 H. 8. Br. Office Com. 486. The Right vests before Office It was objected that the statute of 26 H 8. doth not extend to a right of Action but to a right of Entrie The purpose of this Act of 26 H. 8. is not to attaint any particular person as the Statute of 31 H. 8. was made for the particular Attaindor of Francis Bigot 5 E. 4. 7. Cestuy que use at the Common Law did not forfeit for Felony or Treason but by this Act of 26. H. 8. Cestuy que use shall forfeit both Use and Lands out of the hands of the Feoffees 4 E. 3. 47. 4 Ass 4. The husband seised in the right of his wife at the Common Law for Treason shall not forfeit but the profits of the lands of his wife during his life and not the Freehold it self but by this Act of 26 H. 8. the Freehold it self is forfeited 18 Eliz. in the Common Pleas Wyats Case C. 10. Lib. Entries 300. And if the Statute of 26 H. 8. had had no saving all had been forfeited from the wife 7 H. 4. 32. there it is no forfeiture yet by this Statute it is a forfeiture A right of Action shall not Escheat 44 E 3. 44 Entre Cong 38 C. 3 part the Marquess of Winchesters Case and Bowtiâ—s Case and C 7. part Inglefieldâ—s Case A right of Action per se shall not be forfeited by the Rules of the Common Law nor by any Statute can a right of Action be transferred to another but by the Common Law a right of Action may