Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	action_n	bring_v	writ_n	4,819	5	9.3820	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A50735	The speech of Sir Audley Mervyn, knight, His Majesties prime Serjeant at Law, and speaker of the House of Commons in Ireland delivered to His Grace James Duke of Ormond, Lord Lieutenant of Ireland, the 13 day of February, 1662, in the Presence-chamber in the castle of Dublin : containing the sum of affairs in Ireland, but more especially, the interest of adventurers and souldiers.	Mervyn, Audley, Sir, d. 1675.	1662 (1662)	Wing M1893; ESTC R904	35,291	43

the Fire in the pan but dies of the shot in the Body And since the Law praesupposeth every man of full age to know his title what shall this be accounted but a stratagem and those fortifications are hardly tenable when one standing upon the lines of defence may be short per derriere is certainly the Center of the Law and therefore it sayes Oportet ut res certa ducatur in judicium Bra. b. 2. 5 Co. 3.21 certa esse debet intentio narratio Unhappy was that Declaration in trespass quare clausum suum fregit pisces suos cepit which was judged vicious for not shewing the number or nature of the Fishes when Lands Tenements and Hereditaments that in the providence of the Law are more worthy then two Fishes that are sold for a farthing may be demanded and recovered under all the incertainties and disguises that may be But the readiest way to make Sampson to grinde is first to put out his eyes Propos 9. That where any person or persons have put in his or their Claim before the former or present Commissioners and after put in another Claim of a different Title the best Title for the King shall be taken Sir It is usual for Merchants to put off an old stuff under a new name and here is new stuff put off under an old name This by the Commissioners is called a Retraxit and if they please to make good the word as the Law understands it no exception will be taken for a Retraxit is 21 c. 4.38 8 H. 6.8 when the Plaintiff or Demandant comes in proper person into the Court where the Plea is and saith that he will not proceed any further in the same now this will be a bar to the Action for ever Qui semel actionem renunciaverit amplius repetere non potest but this Retraxit is much like the Retraxit of a Ram or Goat that retires to make his assault with a doubled strength Truly Sir We know not upon what clause in the Act this proceeding is warranted The proceedings before the former Commissioners are allowed true it is that some Commissions that issued from them for valuation of Lands in order to reprisal are suspended until a new valuation issue by the present Commissioners and then the best return for the Kings Service is to be made use of if it be objected those Cl●ims were put in upon the Declaration and Instructions which by the Act possibly may be altered It is easily answered either the Act hath given them a new title or it hath not if it ha●h given them a new title then they are in by the Act and not by any former title if it hath given them none then their old title is that they must rely on But admit an election be the Law is clear Noy 29. and so resolved that there is no election against the King Propos 10. That no Claimant claiming by Innocency shall be allowed to make any other Claim in case he shall be adjudged Nocent Sir We must crave your patience to consider this Case And first the Act of Settlement omitting other divisions divides the Irish into Innocents and Nocents and there is but one subject matter upon which both these distinctions have their prospects scilicet the recovery of their Estates I shall grant that election of Actions belongs to every Subject as his Birth-right Dep. 20.21 57. but likewise it must be granted that where he hath made his election prosecuted it and determined it he cannot have recourse to renew his election being not suspected but extinguished I speak this with this salvo that a person that by particular clause in an Act hath an Estate granted unto him he must take finally and sub modo as the Act appoints Br remitter 49. and hath no election to claim upon any former or other right The body of the Act is but consonant herein to the body of the Law that delights finem imponere litibus and hate●h all circuit of action If a man by his Deed granteth a Rent-charge and the Rent is arrear it is in the Grantees election to bring a Writ of Annuity or distrein Littl. Sect. 219. but he cannot make his election but once for if he recover in a Writ of Annuity he shall never after distrein or if he doth distrein and avow in a Court of R●cord he shall never after bring a Writ of Annuity because an Avowry in a Court of Record being in the nature of an Action is a determination of his election before a Judgment given à fortiori after Judgment given If a Wife be endowed ex assensu patris and the Husband dyeth the Wife hath election either to have her Dower at Common Law Dower 158. or ex assensu patris but if she bring a Writ of Dower at Common Law and Count albeit she recover not yet shall she claim her Dower ex assensu patris So if the Grantee bring an Assize or the Rent and makes his Plaint he shall never after bring a Writ of Annuity Nay when an Election is given to several persons 10 E. 4.17 1 Institut 145. there the first Election made by any of the parties shall stand A man by his own wrong may lose his Election as if a Feoffment be made of two Acres the one for Life and the other in Fee if the Feoffee maketh a Feoffment of both the Feoffor may enter into which of then he pleaseth because the Feoffee hath lost his Election 2 Co. 36.37 It is well known that where many times in one case the Law doth give a man several remedies that by the folly of his Election he may bar himself for ever 1 I●stit 27. a. b. 279. a. It s at the Election of the Issue in tail to enter or to allow himself out of possession and bring his Formedon it s at my election if one receives my Rent if I will charge him with a Disseizin and allow my self out of possession and bring an Assize or have an Action against him 1 Cro. 220. but I shall be bound up by that election to the advantages or disadvantages that accordingly attend it So it is in the Claimants election to claim by Innocency or Nocency but after Judgment given he shall be concluded Propos 11. That any person claiming as an innocent shall after proof of the title proceed to prove himself to have been faithful and loyal unto and never to have actod against his Royal Majesty or his Father before the Defendant shall urge any Crimination and that for defect of such proof of innocency the Claimant shall be adjudged Nocent The very letter of the Act rules this point page 17. of the Act. viz. That all innocent Papists being such as shall prove themselves to have been faithfull and loyal unto and never acted against our Royal Father or Our self c. The Evasion that this relates onely to innocent Papists of Convaught

will not hold except by some Philosophical Rule we may ascribe a particular malignity to the Climat of that Province it is also agreeable to the rule of Law Actori iucumbit onus Probandi they are the Plaintiffs and have Estates granted to them upon condition that they prove themselves innocent There is an Objection the Solution whereof will aboudantly clear this point The Objection is Stabilitur praesumptio donec probatur in contrarium and therefore every of them shall by Judgment of Law be presumed innocent I will grant this to be regularly true but Distinguenda sunttempora when the whole Kingdom is under the serenity and calm of peace and his Majesties Writs have their free course every man shall be presumed to be a loyal Subject for what appearance is there to the contrary But if a part of the Kingdom shall rise up in arms against their Soveraign and assume a contradistinct Government and in defence thereof maintain a War and which is worse a cessation with detention of his Majesties Forts and the inheritance of his Subjects Nisi this latter being an act of Judgement and deliberation and this by Oath of Association and by the strictest rules of confederacy Who is it that without the violation of charity and reason can Judge all or any of them innocent till by distinct and authentique proof they have separated that guilt from themselves which for so many years unto blood they espoused Upon this construction be pleased to heare the words of the Act for that is the Touch-stone of pure or adulterate Expositions viz. Whereas an unnatural Infurraction did breake forth against your Majestie 's Royal Father of over Blessed numory his Crown and Dignity in this your Majestics Kingdom of Ireland upon the 23 of October in the year of our Lord God 1641. and manifest it self by the murthers and destruction of many Thousands of your said Majestics good and Loyal Subjects which afterwards umversally spreading and diffusing it self over the whole Kingdom feetled into and became a formed and almost Nationall Rebellion c. The case being thus truly stated it is easy to discern both from the nature of proof being in the affirmative and the advantage that they are to receive by it That they must putify themselves according to the purification of the Law before they can be admitted to offer in the Temples of Justice And therefore the case will be much like as where a bargainer shall endeavour to avoid the bargain by reason of the non-enrollment within six months he must make manifest proof thereof or else it will be presumed that it was enrolled within the six months 4. Co 20. Sir if an innocent person will endeavour to avoid my present Estate upon surmise that he was not guilty of the Rebellion being a Roman confoederate Catholick under which Title the War was maintained he must prove his Innocency or else it shall be presumed he was one of them A. and B. Tenants in common of a Mannor A. purchaseth a Franktenement mixt with the demesne Lands which were not certainly known B. brings a Writ de Partitione facienda of the Mannor only It was held by the Justices That A. must prove the bounds of the Frank-tenement putchased For the Jury shall be discharged if in conscience they make Partition de tanto quanto praesumitur dignoscitur per praesumptiones verisim lia Dyer 266. So Sir the Irish Claimant coming under that violent Presumption of Nocency if he will not prove the bounds of his actings and conversation during that War the Jury if there were one or the Court as it is at present are discharged if they judg him nocent if upon proof allowed unto him he cannot clear himself of that presumption I say that violent presumption because the Act casts it upon him and Fortior est dispositio legis quam hominis Nay that Act to which he himself is a party so that every Irish Claimant that appears in the Court the Law supposeth him to plead thus I confess the Rebellion in Ireland was universally spread and became almost National yet whosoever is innocent amongst us and so can prove himself to be must have his Estate without a previous reprisal and not otherwise I am an innocent Pray Sir admitting that the King by no grant or engagement had dispos'd of this persons Estate would you not judge that Court very complemental that upon such allegation would judg him his Estate without any proof There is little of my Lord Hobart's zeal and indignation in that Court Besides Sir if this were an Imposition it is no other then what the natural Olive is subjected unto Those Officers that ever faithfully served his Majesty called the 49 men and then why should the wild Olive repine Before they can be admitted to state their Arrears they must prove in what Regiment Company Troop they served with a continuando during their service And nothing is more practicable In the Barony of Evishoan there are above two thousand Irish can bring hundreds of Protestants to witness their civil demeanor through the whole course of the distemper in this Kingdom Propos 12. That every Claimant doth summon the Owner or Defendant of the Land or upon Affidavit made that he or his dwelling cannot be found the Tenant and Attorney of the Defendant and after such summons notice be given of the day of hearing the said Cause by posting the name of the Claimant and List of Lands in the Court 30 days before the hearing in Leinster and 40 days in any of the other Provinces and that the Commissioners be desired to publish the Lists promised A true Regulation in this particular of Summons and Process of the Court is of great importance errors in this are like faults in our first decoction not to be remedied Notwithstanding the long experience and curious observations of the settled Courts of Justice in 21 Eliz. c. 3. which with us was Enacted 10 Car. c. 12. we were forced to have recourse to a Statute for the avoiding of secret Summons in real Actions Courts of Equity adhere close to their Process in Courts of Law they are fitted according to the Nature of the Actions to which they relate And it is apparant if this Point be not ascertained in a different way then as now it is used many persons will be as some already have been decreed out of their Estates unheard notwithstanding their greatest vigilancy to defend them Propos 13. That the Commissioners observe to proceed in the tryall of Claims of Innocents onely in the respective Counties according to the Priority heretofore published by themselves And where any such person claims in severall Counties that such person be not heard till the last County come to be adjudged according to the forementioned order of Priority wherein he is concerned That there be a Priority of Counties and that Priority positively to be observed is of absolute necessity It were very hard