command them in Ireland to do Execution there St. John vers Cummin Yelv. 118 119. 4 Inst 72. If Writ be abated in C. B. and Error brought in B. R. and the Judgment be reversed shall proceed in B. R. and 1 Rolls 774. to the same effect Green vers Cole 2 Saund. 256. The Judges Commissioners gave the new Judgment 'T is true in Dyer 343. the opinion was that he was only restored to his Action and then Writs of Error were not so frequent The Judgment may be erroneous for the Defendant and yet no reason to give a Judgment for the Plaintiff as in Slocomb's Case 1 Cro. 442. the Court gave a new Judgment for the Defendant therefore it properly belongs to the Court which doth examine the Error to give the new Judgment the Record is removed as Fitzh Nat. Brev. 18 19. on false Judgment in ancient Demesne v. 38 Hen. 6.30 and Griffin's Case in Error on a quod ei deforceat in 2 Saunders 29 30. new Judgment given here In the Case of Robinson and Wolley in 3 Keeble 821. Ejectment Special Verdict Judgment reversed in the Exchequer Chamber and they could never get Judgment here the Court of Exchequer Chamber not having given it and in the principal Case after several Motions in the Court of King's Bench the Remittitur not being entred there a Motion was made in Parliament upon this Matter and a new Judgment was added to the Reversal that the Plaintiff should recover c. Dr. William Oldis Plaintiff Versus Charles Donmille Defendant WRit of Error to Reverse a Judgment in the Court of Exchequer affirmed upon a Writ of Error before the Lord Chancellor c. The Case upon the Record was thus Donmille declares in the Exchequer in placito transgr ' contempt ' c. for a Prosecution contra regiam prohibit ' and sets forth Magna Charta that nullus liber homo c. that the Plaintiff is a Freeman of this Kingdom and ought to enjoy the free Customs thereof c. that the Defendant not being ignorant of the Premisses but designing to vex and aggrieve the Plaintiff did in Curia militari Henrici Ducis Norfolk ' coram ipso Henrico Com' Mareschal ' Exhibit certain Articles against the Plaintiff c. that Sir Henry St. George Clarencieux King at Arms was and is King at Arms for the Southern Eastern and Western Parts of the Kingdom viz. from the River of Trent versus Austrum and that the Conusance Correction and Disposition of Arms and Coats of Arms and ordering of Funeral Pomps time out of mind did belong to him within that Province and that the Plaintiff having notice thereof did without any Licence in that behalf had and obtained paint and cause to be painted Arms and Escutcheons and caused them to be fixed to Herses that he provided and lent Velvet Palls for Funerals that he painted divers Arms for one Berkstead who had no right to their use at the Funeral and did lend a Pall for that Funeral and paint Arms for Elizabeth Godfrey and marshalled the Funeral and the like for Sprignall and that he had publickly hanging out at his Balcony Escutcheons painted and Coaches and Herses and other Publick Processions of Funerals to entice People to come to his House and Shop for Arms c. That the Defendant compelled the Plaintiff to appear and answer the Premisses c. The Defendant in propria persona sua venit dicit That the Court of the Constable and Marshal of England is an ancient Court time out of mind and accustomed to be held before the Constable of England and the Earl Marshal of England for the time being or before the Constable only when the Office of Earl Marshal is vacant or before the Earl Marshal only when the Office of Constable is vacant which Court hath time out of mind had Conusance of all Pleas and Causes concerning Arms Escutcheons Genealogies and Funerals within this Realm and that no other Person hath ever intermeddled in those Pleas or Affairs nor had or claimed Jurisdiction thereof and that the Suit complained of by the Plaintiff was prosecuted in the said ancient Court of and for Causes concerning Arms Escutcheons and Funerals That by the 13 Rich. 2. 't was enacted that if any Person should complain of any Plea begun before the Constable and Marshal which might be tried by the Common Law he should have a Privy Seal without difficulty to be directed to the Constable and Marshal to Supersede that Plea till discussed by the King's Counsel if it belongs to that Court or to the Common Law prout per Statut ' ill ' apparet and that the said Court time out of mind hath been tant ' honoris celsitudinis that it was never prohibited from holding any Pleas in the same Court aliter vel alio modo quam juxta formam Statut ' praed ' Et hoc parat ' est verificare unde non intendit quod Curia hic placitum praed ' ulterius cognoscere velit aut debeat c. The Plaintiff demurs and the Defendant joyns From the Exchequer Court this was adjourned propter difficultatem into the Exchequer Chamber and afterwards by advice of the Judges there the Court gave Judgment for the Plaintiff which was affirmed by the Chancellor and Treasurer c. And now it was argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was erroneous and fit to be reversed And first to maintain the Court as set forth 't was insisted on 1. That when there was a Constable and Marshal the Marshal had equal Power of Judicature with the Constable as each Judge hath in other Courts 2. That the Constable had in that Court power of Judicature alone when there was no Marshal And 3. That the Marshal had the like when there was no Constable That they had both equal power of Judicature appeared by all their Proceedings by their Libels or Bills in the Case of John Keightley Esq against Stephen Scroop The Libel is In the Name of God Amen Before you my Lords the Constable and Marshal of England in your Court of Chivalry and prays that the said Stephen by their Sentence definitive may be punisht 1 pars Pat. 2 Hen. 4. m. 7. And the same Stephen libelled against Keightley to the thrice Honourable Lords the Constable and Marshal of England So the Libels were directed to both and both sate judicially The same appears by the Sentence or Judgment given in that Court Bulmer libelled against Bertram Vsau coram Constabulario Mareschallo qui duellum inter partes allocaverunt assignaverunt locum tempus Rot. Vascor ' 9 H. 4. m. 14. It doth likewise appear to be so by the Appeals from their Judgments to the King they are both sent to to return the Rolls of their Judgments Rot. Claus 20 Edw. 1. m. 4. In the Appeal brought by Sir Robert Grovesnor against Richard Scroop 't is upon
only the signification of a Man's purpose how his Estate shall go after his death and tho' it be solemnly made in writing signed published and attested yet if he do any intermediate Act whereby it must be necessarily inferred that such Purpose and Intention of his did not continue the Consequent must be that what was done before as to such Will is totally defeated and unless it be set up anew by a Republication 't is as no Will. The Case of Mountague and Jeffryes 1 Rolls Abridg. 615. and Moore 429. proves this If a Conveyance at Law shews an Intent different from the Will as to Lands 't will be a Revocation tho' such Conveyance be not perfect to all purposes Hodgkinson versus Wood Cro. Car. 23. 'T is a Revocation tho' the Owner should be in again as of his old Reversion The Case of Lestrange and Temple 14 Car. 2. reported in Sid. 90. 1 Keble 357. is stronger but this is stronger yet because 't is not to the old use but limited in a different manner 't is a qualified Fee and to be determined upon the qualifications taking effect and so cannot be the old Estate and if it were yet 't is a Revocation and there 's no Circumstance in the Case that can direct a Court of Equity to differ from the Law and therefore it was prayed that the Decree of Dismission might be affirmed and it was affirmed John Fox Gen ' Plaintiff Versus Simon Harcourt Arm ' Defendant WRit of Error on a Judgment in B. R. The Case was upon a Special Verdict in an Action of the Case upon an Indebitus Assumpsit for Moneys received to the Plaintiff's use brought there by Harcourt versus Fox which Verdict finds the 37 Hen. 8. cap. 1. intituled a Bill for Custos Rotulorum and Clerkship of the Peace Then they find that 1 Will. Mar. intituled An Act for enabling Lords Commissioners for the Great Seal to execute the Office of Lord Chancellor or Lord Keeper and several Clauses therein concerning this Matter Then they find that John Earl of Clare was by Letters Patents dated the 9th day of July Anno 1 Will. Mar. according to the 37 Hen. 8. made Custos Rotulorum for the County of Middlesex and set forth the Letters Patents in haec verba Then they find that the Office of Clerk of the Peace for this County being void the Earl of Clare by writing under his Hand and Seal dated 19 July Anno primo did nominate appoint and constitute the Plaintiff Mr. Harcourt to be Clerk of the Peace for Middlesex for so long time only as he should well demean himself therein and the Instrument was found in haec verba Then they find him to be a Person resident in the County capable and sufficient to have and execute the Office that he took upon him the execution of the said Office and before he did so he at the Quarter Sessions for the said County in open Sessions took the Oath required by the late Act of this King and the Oath of Clerk of the Peace and did do and perform all things necessary to make him a compleat Officer and that during all the time he did execute the sald Office he demeaned himself well Then 't is found That on the fifth of February Anno tertio the said Earl of Clare was in due manner removed from being Custos and William Earl of Bedford by Letters Patents dated the sixth of February was made Custos according to the 37 Hen. 8. and those Letters Patents are also found in haec verba Then they find an Appointment in Writing dated the fifteenth of February by the said Earl of the said Fox to be Clerk of the Peace for the said County to hold the said Office for and during the time the Earl should enjoy and exercise the said Office of Custos so as he well demean himself therein They likewise find Fox to be a Person capable c. and that he took the Oath and did the other things requisite to qualifie himself for the said Office that he did thereupon enter on the Execution of the said Office and during the time that he executed it he well demeaned himself therein and did take the Fees belonging to the said Office which they found to be to the value of five shillings Sed utrum c. Et si c. Et si c. Upon this Judgment was given for the Plaintiff below And it was now argued for the Plaintiff in the Writ of Error That this Judgment ought to be Reversed And first it was said that whatsoever the Common Law was as to ancient Offices could be no Rule in this Matter Many and most of those were for Life but my Lord Coke says That the Office of Chancellor of England could not be granted to any one for Life because it was never so granted the like of Treasurer So that Custom and nothing else can govern in those Offices But here can be no pretence of its being a Common Law Office for the Common Law knew no such thing as Justics of the Peace to whom they say he is a Clerk That the first Statute which makes Justices hath no mention of Clerk but 't was meerly an Incident some Person of necessity was to officiate in that kind And where he is called the Justices Clerk it can only be that he was one appointed by them to make and write their Records for them and 't is probable that in ancient time he that was their Clerk was Custos Rotulorum and intrusted with the keeping of the Records then it coming to be an honorary thing to be Custos he that was the most eminent for Quality amongst them was appointed to that Trust and then he appointed his Clerk under him For there 's no ancient Statute or Law that empowered the Chancellor to make a Custos but he making out the Commission of the Peace might very well name one of them to be Keeper of the Records and to have the first place amongst them And such Person might very well appoint his Deputy or Servant who in time came to be Clerk of the Peace We have no certain but this is the most probable Account of the thing Then the Statute of 37 Hen. 8. recites That the Chancellor had much perverted the Institution by assuming to make Custos's for Life and so the Clerks of the Peace were for Life likewise The end of that Act was not only to remove ignorant Persons for the Common Law it self would turn any such out of Office if he be not able to perform the Duty of it but the Grants for Life were the great Grievance and therefore to remedy that Mischief the Custos must be appointed by Bill signed with the King 's own hand and at his pleasure removeable and the Clerk of the Peace to be appointed by the Custos and to continue only during the time of the others continuing to be Custos This tho' not
Court recommitted which is the same Assault Taking and Imprisonment and Traverses absque hoc that he was guilty of the Assaulting Taking or Imprisoning him within the time last mentioned at London or elsewhere then in the Isle of Barbadees or otherwise or in other manner then as before The Plaintiff demurred and the Defendant joyn'd in Demurrer and Judgment was given for the Plaintiff and a Venire awarded tam ad triand ' exitum quam ad inquirend ' de dampnis c. and the Issue was found pro quaerent ' and 6 d. Damages and on the Demurrer 500 l. Damages and Judgment for Damages and Costs amounting in the whole to 590 l. The Plaintiff Sir J. Witham dying Trin. 2 Wil. Mar. the Judgment was revived by Scire Facias brought by Howel Gray and Chaplain Executors of Sir J. W. quoad omnia bona catalla sua except one Debt due by Bond from Henry Wakefield And at the Return of the Scire Fac ' the Defendant appears and demurs to the Scire Facias and there is an Award of Execution and thereupon a Writ of Error is brought in the Exchequer Chamber and the Judgment was affirmed Then a Writ of Error is brought in Parliament and the General Error assigned And here it was argued on the behalf of the Plaintiff in the Writ of Error that this Action did not lye against him because it was brought against him for that which he did as a Judge and so it appeared on the Record according to 12 Rep. 25. that the Rule seems the same for one sort of Judge as well as for another that this Person was lawfully made a Governour and so had all the Powers of a Governour that this was a Commitment only till he found Security tho' not so Expressed that this is not counsable here in Westminster-hall that he was only censurable by the King that the Charge is sufficient in that Sir J. W. had not taken the Oaths that male arbitrarie executus fuit is Charge enough to warrant a Commitment that this was a Charge before a Councel of State and there need not be all the Matters precisely alledged to justifie their Acts and by the same reason Actions may lye against the Privy Counsellors here and enforce them to set forth every particular which would be of dangerous Consequence the Plea might have been much shorter as only that he was committed by a Counsel of State and the addition of the other Matters shall not hurt and that the Charge was upon Oath shall be intended no Presumption shall be that the Supream Magistracy there did irregularly 't is a power incident to every Council of State to be able to commit This action cannot lye because the Fact is not triable here the Laws there may be different from ours Besides no Action lies unlefs 't were a malicious Commitment as well as causeless and that no Man will pretend that an Action can lye against the chief Governour or Lieutenant of Ireland or Scotland and by the same reason it ought not in this Case he had a power to make Judges and therefore he was more than a Judge and they have confessed all this Matter by the Demurrer The Statute of Car. 1. which restrains the power of our Councel of State supposes that they could Commit that in case of Crimes there they are punishable in that place and in Sir Ellis Ashburnham's Case there was a Remanding to be tried there and if so it can't be examinable here and if not this Action will not lye And further that what was done here was done in a Court for so is a Councel of State to receive Complaints against State Delinquents and to direct their Trials in proper Courts afterwards that there was never such an Action as this maintain'd and if it should it would be impossible for a Governour to defend himself First For that all the Records and Evidences are there 2. The Laws there differ from what they are here and Governments would be very weak and the Persons intrusted with them very uneasie if they are subject to be charged with Actions here for what they do in those Countries and therefore 't was prayed that the Judgment should be reversed On the other side 't was argued for the Plaintiff in the Original Action That this Action did lye and the Judgment on 't was legal That supposing the Fact done in England the Plea of such Authority so executed at Plymouth or Portsmouth or the like had been ill for that Liberty of Person by our Law is so sacred that every Restraint of it must be justified by some lawful Authority and that Authority must be expresly pursued That here was no Authority to commit for that must be either as a Court of Record or as Justices of Peace Constable or other Officer constituted for that purpose that the Letters Patents are the only Justification insisted on and that gives none 't is true the power of Committing is incident to the Office of a Court here 's only the Government of the Place committed to Sir Richard Dutton with a power to erect Courts and appoint Officers but none to himself He in Person is only authorized to manage and order the Affairs and the Law of England takes no notice of such an Officer or his Authority and therefore a Court of Law can take notice of it no further or otherwise then as it doth appear in pleading The Councel is not constituted a Court they are by the Letters Patents only to advise and assist the Governour and the Governour hath no power to commit or punish but to form and establish Courts to do so which imports the direct contrary that he had no such power The Ends of appointing the Councel as mentioned in the Letters Patents are quite different viz. to aid the Regent by their Advice not to act as of themselves and if neither the Governour of himself nor the Councel of it self had such a power neither can both together have it A Court of Justice is not to be intended unless the same be specially shewn Excepting the Case of the common known general Courts of Justice in Westminster-hall which are immemorial if any thing be justified by the Authority of other Courts the same must be precisely alledged and how their Commencement was either by Custom or Letters Patents Here it appears by the Plea it self that they had Justices of Oyer and Terminer appointed It doth not appear that he or the Councel were Judges of things of this kind Besides when a Councel is constituted as here was Twelve by Name that must be the Majority as is the Dean and Chapter of Femes Case Davis's Rep. 47. and that 's Seven at least which are not in this Case There must be a Majority unless the Erection did allow of a less Number The practise of the Courts of Westminster-hall do not contradict this for there 't is a Court whether more or less and so
Inst 125. though the Statutes of Hen. VIII impower Commissions for trial of Treasons Committed beyond the Seas yet this Court doth and may still take Conusance of such Causes 4 Inst 124. Its Sentences are only reversable by and upon Appeal to the King no Writ of Error or false Judgment lies upon any of them which shews the greatness of the Court and the difference of its Jurisdiction from other Courts which may be some of thereasons why no Prohibition was ever granted to it and why the Parliament of Rich. II. gave the Remedy of a Privy Seal wherefore it was prayed that the Judgment should be Reversed On the other side it was argued by the Council in behalf of the Plaintiff in the Original Action that this Judgment ought to be affirmed and it was after this manner there seem three Queries in the Case 1. If any Prohibition lies to that Court 2. If any Cause here for a Prohibition and 3. If there be any such Court as that before the Earl Marshal but another doubt was raised whether any of these Questions could be such upon this plea which is concluded to the Jurisdiction for that seems to make only one doubt whether the Court of Exchequer could hold Plea of an Action for proceeding contrary to a Prohibition already granted but this was waved and then it was argued 1. That a Prohibition doth lie to this Court of Chivalry in case it exceeds the Jurisdiction proper to it and it was agreed that the Office of Constable is Ancient and by Cambden is held to have been in Ure in this Kingdom in the Saxon's time though the Office of Marshal is but of a puisne date but however Great and Noble the Office is however large and Extensive the Jurisdiction is yet 't is but limitted and Coke in 4 Inst 123. says that 't is declared so by the Statute of Rich. II. where 't is said that they incroached in great prejudice of the King's Courts and to the great grievance and oppression of his people and that their proper Business is to have conusance of Contracts and Deeds of Arms and of War out of the Realm which cannot be determined or discussed by the Common-Law which other Constables have heretofore duly and reasonably used in their time now by this Act 't is plain what the Jurisdiction is Contracts and Deeds of Arms and War out of the Realm are the subject matter of it and by Coke 't is called curia militaris or the Fountain of Marshal Law which shews it a Court that hath its boundaries a Court that may incroach nay which hath incroach'd in diverse instances belonging to the Common-Law And that 't is a Court that ought to meddle with nothing that may be Determined in Westminster-Hall then there must be some way of restraining this excess and these incroachments and if the Statute of Rich. II. had not been made it must be agreed that a Prohibition would have lain for else there had been no remedy which is absurd to affirm 'T is no Objection that Prohibitions are only grantable to Inferiour Courts and that this is one of the greatest Courts in the Realm for if a Court Marshal intermeddle with a Common-Law matter ea ratione it becomes inferior and may be controwled There needs no contest about the Superiority of Courts in this matter 't is the same here as among private Persons he that offends becomes inferior and subject to the Censure of his equal by offending though that Court should be reckoned so noble and great as hath been represented yet 't is only so while it keeps within its Jurisdiction Prohibitions are grantable to almost all sort of Courts which differ from the Common-Law in their proceeding to Courts Christian to the Admiralty nay to the Delegates and even to the Steward and Marshal upon the Statute of Articuli super Chartas Cap. 3. That they shall not hold Plea of Freehold or of Trespass Fits ' N.B. 241 242. is an express Writ of Prohibition though the Statute gave no such Writ but only did restrain the Jurisdiction of the Court which in truth is the Case in Question antecedent to the Statute pleaded No Argument can be raised from the subject matter of the Jurisdiction of this Court that 't is different from the Common-Law for so is the Admiralty and the Prerogative Courts nor is it any Objection that upon any Grievance in this Court the Appeal must be to the King for that holds in the other Courts with equal reason Nay Prohibitions lie from Westminster-Hall to hinder proceeding in Causes which the Courts that grant such Prohibitions cannot hold Plea of as to the Ecclesiastical Court which grants probate of a Will made within a Mannor to the Lord whereof such probate belongs 5 Rep. 73. to the Marches of Wales if hold Plea of what belongs to Court Christian 2 Roll's Abridg. 313. are several Cases to this purpose there were also Cited 1 Roll's Rep. 42. 2 Roll's Abridg. 317. Sid. 189. 1 Brownl 143 144. and Herne 543. 't was further urged that there neither was nor could be any reason assigned why a Prohibition should not be grantable to the Court of Chancery when by English Bill it meddles with the Common-Law in other manner than its Ancient and proper Jurisdiction doth allow and several Authorities were Cited to countenance that Assertion Then was considered the reason of Prohibitions in general that they were to preserve the right of the King's Crown and Courts and the ease and quiet of the Subject that 't was the Wisdom and Policy of the Law to suppose both best preserved when every thing runs in its right Channel according to the Original Jurisdiction of every Court that by the same reason one Court might be allowed to incroach another might which could produce nothing but confusion and disorder in the Administration of Justice that in all other Writs of Prohibition the suggestion is and with Truth in prejudicium corone Regis Gravamen partis and both these are declared to be the consequent of this Courts excess or incroachment of Jurisdiction even by their own Statutes and when the reason is the same the remedy ought to be so But it hath been pretended That the Statute appoints a Privy Seal for to supersede c. and therefore no Prohibition to this it was answered That this Act doth not take away the force of the 8 Rich. II. mentio ned in 4 Inst 125. which restrains the Constable and Marshal from medling with any Plea which concerns the Common Law and if it had a limitted Jurisdiction by the Common-Law or by that Statute the subsequent Statute which gave a further Remedy for to restrain them did not take away that which they had before and every Body must agree that where an Act of Parliament restrains a Jurisdiction such Act warrants a Prohibition in case that restraint be broken or exceeded 't is so in case of a limited Power at
meerly upon his Suit If the Person had been taken upon this Capias he had been the Plaintiff's prisoner and if he Escapes the Plaintiff had an Action for it Yelv. 19. and the supposed Forfeiture is only for his Interest 3 Cro. 909. And by this practise the King's Prerogative is to assist one Subject to deceive another By the Law a Judgment is preferrable to a Bond and binds the Land which a Bond doth not till Judgment upon it now here the first is to be postponed by reason of the King 's supposed Prerogative which is only a Right in the King for the use of the Party to have the Profits 2 Rolls Abridg. 808. vide Stamford 57. 1 Inst 30. Hardres 101 176. 1 Inst 202. Latch 43. That the Elegit hath Relation to the Judgment and so becomes Prior to the King's Title like the Relation of a Bargain and Sale to an Inrolment and as a strong Argument for it the words in the Writ of Elegit were repeated and enforced quo die Jud ' reddit ' fuit which shewed a relation to that day and consequently did affect the Lands at a time when the King had no Interest in it On the other side it was argued with the Judgment That this was the common Practise of the Court of Exchequer in this Case that the Course of a Court is the Law of that Court and to be taken notice of by all other Courts that 't is time out of mind and consequently of equal duration with the Common Law and always deemed to be parcel thereof that the Records and Experience of the ancient Clerks were both concurring to prove it the common Usage in the Exchequer that when Lands are seized into the K's hands by virtue of an Outlawry and Inquisition it was never known that the King's hands were removed by force of an Elegit sued afterwards tho' upon a Judgment precedent that it hath been their constant practise to continue the pernancy of the Profits in the King notwithstanding such Elegit that 't would be of dangerous Consequence to alter the same by a new Opinion that 't is not so very material whether this practise be more reasonable then another but whether it be certain and known for if it be so 't is much better to have it continued then changed because of the Confusion which must follow by shaking the Rights and Possessions enjoyed under the former Practise That 't is not in many Cases so considerable what the Rule is as that it be fixed and understood and therefore no reason to alter it or at least not without the use of the Legislature for by the same colour that some Judges of Parts and Segacity shall think fit to swerve from their Predecessors others of less capacity may pretend to do the same and so nothing but uncertainty would ensue But besides this is not meerly a Course of the Court 't is also agreeable to the Rule and Reason of the Laws Baden hath no interest in the Land 'till he sues his Elegit whereas the King's Title to the Land was compleat by the Outlawry and Inquisition which was prior to the Elegit and a Judgment of it self doth not affect the Land till Election made a Judgment at Law is only an Award of the Court ascertaining of the Debt and declaring that the Plaintiff shall recover In it self it doth no more assect the Land then a Bond 't is true when the Suit is ended by a Judgment the Party may resort to an Elegit for his Execution if he thinks fit and can find any thing subject thereto At the Common Law before the Statute of Westminst 2. cap. 18. a Subject upon his Judgment for Debt or Damages could not have Execution by taking away the Possession of his Adversary's Land because that would hinder the Man's following of Husbandry and Tillage which then was reckoned beneficial to the Publick So is 2 Inst 394. and Sir William Herbert's Case 3 Rep. 11 12. nothing but a Levari or Fieri facias then by the Statute sit in Electione illius and Coke in his Comment on those words saith After the suing of an Elegit he can't have a Capias So that by him the suing out of the Writ is the determining of his Election 2 Inst. 395. Foster and Jackson's Case Hob. 57. Even the Elegit it self doth not when sued out immediately touch the Lands for if that the Chattels be sufficient to pay the Debt and it so appears to the Sheriff that thereby he may satisfie the Plaintiffs Demand then he ought not to extend the Land and this appears by the frame of the Writ as 't is in the Register 299. 2 Inst 395. which shews that no Title can be acquired to the Land till the same be Extended The Elegit cannot by Law have relation to the Time of the Judgment so as to avoid the King's Title for relation is only a Fiction and Fiction shall never bind or prejudice the King in his Right much less in his Prerogative and no Case can be shewn where a Relation shall conclude the King nor is it any Objection That this is a Prerogative for the Benefit of a Subject for in truth all the Prerogatives are for the Advantage and Good of the People or else they ought not to be allowed by the Law Besides Practise and Reason there 's express Authority in our Books for it as the Case of Masters versus Sir Herbert Whitfield 1657. Hardres 106. And if there were no Book for it the Practise is enough for the printing of a Case doth not alter or change the nature of it 't is as much Authority if it be not published as when it is so Masters recovered a Judgment against Sir Herbert Whitfield and after the Judgment Sir Herbert was outlawed at another Man's Suit and his Lands seized into the Protector 's hands and afterwards Masters took out an Elegit and the whole Court was of Opinion that the Lands being seized into the Protector 's hands before the Elegit was sued out there could not be an amoveas manus awarded altho' the Judgment was prior to the Outlawry this is the same with the Case at Bar and tho' it may be surmised That this was an Opinion vented in Evil Times yet 't is well known that excepting their Criminal Proceedings in those Times the Law flourished and the Judges were Men of Learning as Mr. Justice Twisden hath often affirmed upon the Bench. 'T was further urged That Prerogative was to be favoured that 't was a part of the Law 2 Inst 296. especially when 't was used as in this Case to help an honest Man to his Debt that confessing of Judgments was oftner practised by Fraud to cover Mens Estates then Outlawries were to defeat just Judgments That if this Judgment was just and honest 't was his own default not to sue an Elegit immediately Then were cited many Cases to prove the King's Prerogative as Fleetwood's Case
behalf of the Appellants That the half Blood ought to have but a half share That in the Case of Inheritances the whole Blood was preferred and that tho' such Rule could not govern intirely in this Case yet it shewed which ought to have the preference that the true Reason of Distribution was this The Law was to give in like manner as he might reasonably be supposed willing to have given his Estate in case he had made a Will and had not been surprised by a sudden Death that every Man was supposed to favour his next of Kin that the Statute of Distributions did the same thing and then that the whole Blood was nearer of Kin because did partake of both the Stocks from whence he came that the Relation or Kindred in this Case intirely came from the Parents that this was not an Alliance by his own Contract as Marriage or the like that the Inclination was supposed to arise to them from the Natural Love he bore to the Common Ancestors that such Inclination could never be supposed equal where the Party was only of the half Blood And much to this effect and many Arguments drawn from the Civil Law were urged in favour of the Appellant and several Presidents cited where it had been judged since the Statute for the half Blood to have but a half share by Sir Richard Lloyd On the other side it was argued That the half Blood is as near a Kin to the Intestate as the whole Blood and ought to have an equal Share of the Personal Estate with the whole Blood that the Party must be presumed equally inclined to each Parent that the Brother of the half Blood was as much a Brother as one of the whole that the whole Blood was preferrable in Descents but that was only upon account of a Maxim in the Law whereas here they are equally of Kin the whole Blood is no more a Brother than the half in the same Relation there can be no difference or degree it might as well be pretended to have a difference allowed upon the account of Seniority that Opinions and Practise had been with the Decrees that this hath been taken to be the Law in Westminster-hall Before the Statute 't was held that a Sister of the half Blood is in equal degree with the whole Brown versus Wood Allen's Rep. 36. and so cited in Smith's Case Mod. Rep. 209. So in the Case of Milborne and Milborne 30 March 1671. before the Lord Keeper Bridgman W. M. had by Will devised all his Lands in Trust to pay every Brother and Sister he had living 40 l. per Annum each and he had several Brothers and Sisters both of the half and whole Blood the Brothers of the whole Blood did oppose the payment of the 40 l. per Annum to those of the half Blood but 't was adjudged and decreed that they are equally entituled to the 40 l. per Annum a piece and enjoyed accordingly Farmer versus Lane and Nash in Chancery 26 Octob. 1677. declared and adjudged by the Lord Chancellor Nottingham That the half Blood are in equal degree of Kindred with the whole Blood and ought to have an equal Share of the Personal Estate The like was in the Case of Stapleton and the Lord Merion against the Lord Sherrard and his Lady in Chancery by Judge Windham 13 June 1683. the Case was thus Robert Stapleton had a Sister of the whole Blood and a Brother and Sister of the half Blood and died Intestate Administration was granted to his Wife the Lady Sherrard who claimed a Moiety of the Personal Estate by the Custom of the Province of York and a quarter of the other Moiety by force of the Act for Distribution of Intestates Estates and adjudged that the Wife should have only one Moiety and the other Moiety to be divided equally between the Brothers and Sisters both of the whole and half Blood This Cause was Reheard the Seventh of May 1685. by the Lord Guilford upon the Certificate of his Grace the Lord Archbishop to whom it was referred to certifie the Custom of the Province of York who certified that the Wife shall have only a Moiety and the other Moiety shall be divided amongst the next of Kindred and adjudged that the half Blood shall have an equal Share with the whole and so the former Decree was confirmed The same was adjudged by Mr. Justice Charlton June 30. 1685. in the Case of Pullen and his Wife against Serjeant in the Court of Chancery The like was amongst other things declar'd and decreed by the Lord Jessryes Febr. 19. 1686. in the Case of the late Lord Winchelsea against Noraliff and Wentworth upon which Hearing were present and assisting the then Lord Chief Baron Atkyns and Mr. Justice Lutwich and so was it Nov. 20. 1689. between Stephens and Throgmorton in Chancery It hath likewise been held so in the Ecclesiastical Court and accordingly adjudged by Sir Richard Raynes upon Solemn Argument by the most eminent Counsel both of the Civil and Common Law in the Case of James Storey Febr. 26. 1685. and in the Case of George Hawles by the same Judge upon June 1. 1687. Then it was urged That the Statute of Jac. 2. for reviving and continuance of several Acts of Parliament therein mentioned proves this for 't is enacted That if after the Death of the Father any of his Children shall die intestate without Wife or Children in the life time of the Mother every Brother and Sister and the Representatives of them shall have an equal share and that a Brother of the half Blood is a Brother to the Intestate as well as a Brother of the whole Blood and therefore ought to have a share and an equal share with the rest And upon consideration of all those Presidents and there being no Practise against it except that of Sir Richard Lloyd's it was prayed that the Decree might be confirmed and it was confirmed Lee Warner Versus William North. APpeal from a Decree of the Lord Chancellor which over-ruled the Exceptions taken by the Appellant to a Decree made by Commissioners for Charitable Uses concerning a Gift by Bishop Warner's Will and the same was received and the Parties ordered to answer And each side being heard by their Counsel the Decree was affirmed Vide the Statutes concerning Charitable Uses and the Delegates and query how they differ And whether an Appeal doth not lye upon a Sentence by Delegates as well as on a Decree of Chancery upon a Decree of Commissioners for Charitable Uses Briggs versus Clarke WRit of Error on a Judgment in B. R. affirmed in the Exchequer Chamber upon a Verdict in Debt for the Escape of one Cook and none appearing for the Plaintiff in the Writ of Error the Judgment was affirmed with the increase of Forty pounds in Costs Vide the Case of Ellison and Warner Mich. 18 Car. 2. B. R. 2 Keeble 91. Whether a Writ of Error lyes in Parliament
be affirmed and it was affirmed Sir Edward Hungerford and John Hill Executors and Devisees of Sir William Basset deceased Plaintiffs versus Edward Nosworthy Defendant WRit of Error to Reverse a Judgment in B. R. upon a Special Verdict in Ejectment by Hitchins the Lessee of Nosworthy against Sir William Basset Defendant for the Mannor of Lanrock and other Lands in Cornwall wherein upon Not Guilty pleaded and a Trial at Bar the Jury find That Sir Henry Killegrew was seized in Fee of the Lands in question and on the 12th of November 1644. made his Will in writing which follows in these words I Henry Killegrew c. and so they set forth the Will whereby Sir Henry Killegrew devised the Premisses to Mrs. Jane Berkley his near Kinswoman for Life with Remainder over to Henry Killegrew alias Hill Sir Henry's Natural Son in Tail and makes Mrs. Berkley sole Executrix They further find that after the making of that Testament and before the time when c. viz. about the Feast of St. Michael in the Year 1645. Condidit fecit aliud Testamentum in scriptis sed quid fuit content ' in eodem ult ' mentionat ' Testamento vel quale fuit purportum sive effectus inde juratoribus praed ' non constat And that Sir Henry on the 29th of September 1646. died seized of the said Lands that Mrs. Jane Barkley Devisee of the said Will in 1644. by Lease and Release conveyed to Mr. Nosworthy's Father and that the Father died in 1684. that Mr. Nosworthy is Son and Heir to him that Sir William Basset is Cosin and Heir to Sir Henry viz. Son and Heir of Elizabeth Basset Daughter and Heir of Sir Joseph Killegrew elder Brother of Sir Henry the Testator that Nosworthy the Lessor of the Plaintiff entred and made the Lease in the Declaration c. But upon the whole Matter whether the Said Testament made in writing 1645. was a Revocation in Law of the said Devise of the said Lands to Mrs. Berkley they are ignorant and pray the Judgment of the Court Et si And upon this Judgment was given for the Plaintiff in the Ejectment And now it was argued That the Judgment was Erroneous that this last Will could not be taken to be a duplicate of the former but must be deemed a Revocation that no Will is good but the last that every Will is revokable till death that the making of another doth import a Revocation of all former ones tho' it be not so expresly declared in writing for it must be the last or nothing that this Conveyance by Will was anciently a Priviledge by the Civil Law for People in Extremis who had not the time or assistance necessary to make a formal Alienation and chiefly intended for Military Men who were always supposed to be under those Circumstances and therefore the Ceremonies and number of Witnesses required of others were dispensed with as to Soldiers but now the Rules for Military Testaments as they are called are allowed in most Cases that as to Lands by our Law was a Priviledge only given to some Boroughs and Places within the Kingdom and particular Custom gave the liberty of disposing Lands or Houses by Will and that by nuncupative Will or Parol without writing so is Bracton lib. 4. fol. 272. Fleta lib. 5. cap. 5. Potest legari catallum tam hereditas quam perquisitum per Barones London Burgenses Oxon 1 Inst 111. that then came the Statute of Hen. 8. and impowers a Devise by a Man's last Will and Testament in writing but still 't is by his last Will. And so is Littleton sect 168. If divers Wills the latter shall stand and the others are void 1 Inst 112. In truth 't is plain Law the first Grant and the last Testament In Swinb 1 part sect 5. p. 14. no Man can die with two Wills but he may with divers Codicils and the latter doth not hinder the former so long as they be not contrary Another difference there is between Wills and Codicils If two Testaments be found and it can't be known which is first or last both are void but the latter countermands the first tho' there be a Clause in the first that it shall not be revoked and tho' an Oath were taken not to revoke because the Law is so that the very making of a latter doth revoke the former So is Liuwood's Provincial ' de Testamentis Justice Dodderidge's Office of Executor published by Wentworth 29. A verbal Will revokes a former written Will Forse and Hembling 4 Rep. 60 61. Plowd 541. Perkins sect 178 179. and sect 478. The 2 Hen. 5.8 is full to this purpose There 's an Action by an Executor against two Executors and they plead a Testament whereby they are made Executors and the Plaintiff replys that he afterwards made another and himself Executor and held that by the second the first became void Now the meaning of these Books cannot be that a Will expresly revoking is the only Will that can make a Revocation nor is it that a Contrariety or Repugnance between the one and the other is necessary to make a Revocation for tho' there be no new Will made yet a Revocation may be by word of Mouth as 2 Cro. 49.115 1 Cro. 51.3 Cro. 781. nay a void Bequest shall revoke a Will so shall a Deed that hath no effect as Feoffment without livery a Devise to J.S. or to a Corporation when there is no such will do it so that 't is not the Contradiction between the disposal which revokes for that which is no disposition at all will do it wherefore the meaning of the Authors cited is somewhat else and it can only be this That there is somewhat particular in a Will to that Instrument of Conveyance more than to any other that even the making of a new Will is a sufficient Revocation the words are plain by the making a new Will the former are all destroyed for there can be but one last And when a Man makes and declares a new Will that new Will must be presumed to contain his whole Mind concerning the disposition of his Estate declaring his Will imports thus much and excludes all other When a Man would alter part of his Will there 's a proper Instrument for it called a Codicil which is known in the Law as well as that of a Will here 's nothing found of a reference to the former to judge it otherwise would confound the use of Wills and Codicils and the difference between them 'T is true that a Man may make partial Wills of several parts of his Estate and all may stand together but then they must be declared to be Wills concerning particular things and they are but several pieces of the same Will tho' written in different Papers but then in pleading one of them you must not generally say he made ult ' voluntatem but ultimam voluntat ' of such a thing but here 't
is aliud testamentum i.e. a general Testament The 2 Rich. 3. fol. 3. is directly thus The Defendant pleads one Will the Plaintiff replies another and exception taken because he did not traverse the former but held needless to do so quia per ult ' testamentum ut placitatur generaliter primum testamentum revocatur in omnibus and it cannot be pretended that this might be the same Will written over again for if so it could not be aliud it would be the same these are not quibbles upon words for can it be said that this is a Devise by the last Will of Sir H. when there 's another Nor is it an Objection that the Contents do not appear for the Will belongs not to the Heir to keep and consequently not to shew in pleading he is not bound to a profert 't is enough that there was a subsequent Will And as the latter may confirm or be consistent with the former so it may not be so and the consistency is not to be presumed especially against an Heir at Law and in possession In the Case of Coward and Marshal 3 Cro. 721. the Substance of both are declared and thereby they appeared to be consistent and consequently no Revocation here Eadem mens sic testandi the same intent of disposing his Estate the same way can never be thought to continue for then there had been no occasion of making another Will If this be not a Revocation 't is an act void and to no purpose which is never to be intended Then 't was insisted on That the bare act of making and publishing another Will is a Revocation and the finding of the Contents unknown is void If this be not a Will 't is a Codicil and that is contrary to the finding of the Jury for the Verdict mentions a second Substantive independent Will without reference to the former which second Will is a Revocation and therefore 't was prayed that the Judgment should be reversed It was argued on the other side in behalf of Mr. Nosworthy That this was no Revocation that here had been a great stir about nothing for that nothing appeared against his Title that a Man may make a Will of several things at several times and they both shall stand that a deliberate Will being made the Contents whereof are known shall never be revoked by that which is not known nothing can be judged upon that which doth not appear and consequently it can never be judged to be a Revocation Here 's another Will and nothing is given by it nothing is found to be given by this subsequent Will The form of entring the ancient Judgments was Quibus visis lectis auditis per Curiam plene intellectis now what is here read to make a Revocation 2 Rich. 3. fol. 3. is with the Judgment for there 't is replied that he made another Executor there are the Contents pleaded sufficient to maintain his Count and answer the Defendant's Bar the Book is per hoc quod alius Executor nominatur Then was cited 1 Cro. 51. the Reason given is quia in dubiis non presumitur pro testamento and here being a good Will at the most the other is doubtful 1 Cro. 114 115. Several Wills of several things may be made And the same Book 595. 10 Car. 1. which Refolution Serjeant Maynard in arguing this Case below said that he heard in that Court of Kings Bench 'T is the Subject Matter of the Wills and the Repugnancy which makes the Revocation In this very Case in the Exchequer upon an English Bill 't was held by Hale to be no Revocation 't is in Hardres 375. Coke upon Littleton which hath been quoted Comments upon these words several Devises and if there be no Devise in the second there can be no sense or meaning in it and consequently unless some meaning appear it can never be an Evidence of a change of his Mind as it might be a Revocation so it might be otherwise and he that will have it to be a Revocation must prove it to be such No Man can affirm that every Will must necessarily be a Revocation of a former for the second Will might be of another thing as Goods or of another parcel of Land or in confirmation of the former If in these and many other like Cases a latter Will is no Revocation of a former how can it possibly with justice be concluded that a latter Will without Contents Purport or Effect shall be a Revocation of a former And tho' the Jury have in this Case believed the Witnesses and found that another Will was made it may be of dangerous Consequence to encourage and construe this a Revocation without knowing the Contents for no Will can be secure against the swearing of a new Will if there be no necessity of shewing it or proving what it was For which and other Reasons it was prayed that the Judgment might be affirmed and it was affirmed Sir Simon Leach al' Plaintiffs Versus J. Thomson Lessee of Charles Leach Defendant WRit of Error to Reverse a Judgment given in B. R. upon a Special Verdict on a Trial at Bar in Ejectment brought by Thomson on the Demise of Charles Leach the Special Verdict finds that Nicholas Leach was seized of the Lands in question in his Demesne as of Fee and being so seized 9 Nov. 19 Car. 2. he makes his last Will and thereby devises the Premisses to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to Simon Leach his Brother for his Life and after his Decease to the first Son of the Body of the said Simon lawfully to be begotten and the Heirs Males of the Body of such first Son lawfully to be begotten and for default of such Issue to the second c. and so on to the eighth Sons of all and every other Sons c. and for default of such Issue to Sir Simon Leach his Kinsman Son and Heir of Simon Leach of Cadley in Com' Devon ' Esq deceased and the Heirs Males of his Body and for default of such Issue to the right Heirs of him the said Nicholas for ever Then they find That the Lands in the Declaration and those in the Will are the same that afterwards viz. 10 Apr. 20 Car. 2. Nicholas died seized without Issue of his Body that after his Death the said Simon his Brother and Heir Entred and was seized in his Demesne ut de libero tenemento for term of his Life Remainder to the first Son of the Body of the said Simon the Brother and the Heirs of the Body of such first Son lawfully to be begotten and for default of such to the second c. Remainder to Sir Simon in Tail Remainder to the said Simon the Brother and his Heirs belonging That Simon Leach the Brother being so seized afterwards viz. 20 Aug. 20 Car. 2. took to Wife Anne the Daughter of Vnton Crook that
Exception to all Grants for Lives but Credit ought to be given to the Honour Wisdom and Judgment of former as well as present Officers in respect of such Nominations 'till some Misbehaviour shews the Choice to have been ill and when that appears the Persons are removable and then the Inconvenience is likewise removed Here the Jury have found the Plaintiff in the Action below to be able and sufficient and well qualified for the Office and to have done his Duty in the Office while he had it Wherefore it was prayed that the Judgment might be affirmed and it was affirmed Henry Lord Bishop of London and Peter Birch D.D. Plaintiffs versus Attorney General pro Domino Rege Regina WRit of Error to Reverse a Judgment given in B. R. in a Quare Impedit The Case upon Record was thus The Declaration sets forth the Act of Parliament which Erects and Constitutes the Parish of St. James's within the Liberty of Westminster out of the Parish of St. Martyns c. prout that by force and virtue of that Act the said Parish was made and the District therein named became a Parish and Dr. Tennison Rector of the same that he was afterwards Rite et Canonice consecratus Episcopus Lincoln ' and that thereby the said Church became void and thereupon it belonged to the King and Queen to present a fit Person ratione Prerogative sue Regie Corone sue Angl ' annex ' and that the Defendants hindred c The Defendants crave Oyer of the Writ and it is general Vic' Com' Midd ' salut ' precipe Henric ' Episcopo Lond ' Petro Birch Sacre Theologie Professor ' quod juste et sine Dilatione permittant nos prefentare idoueam personam ad c. que vacat et ad nostram spectat dâ—mationem Et unde pred' Episcopus et Petrus nos injuste c. And then they pray Judgment of the Writ and Declaration because that between the Writ and Declaration there is a material variance iâ— hoc viz. quod ubi per Breve pred' pred' Dom ' Rex et Regine â—â—â—itulant se ad Donationem pred' c. pleno Jure tamen per Narr ' pred' iidem Dominus Rex et Domina Regina intitulant se ad c. Sec â—â—â—tione Prerogative sue Regie Corone sue Anglie annex ' unde pro variatione pred' inter Breâ—e et Narr ' pred' they pray Judgment of the Writ and Declaration aforesaid and that the said Writ may be quash'd c. The Attorney General Demurs and the Defendants Joyn and there 's Judgment to answer over Then the Bishop Demurs generally and Mr. Attorney Joyns and Dr. Birch pleads that he is Incumbent and then sets forth the Statute of Hen. 8. concerning Dispensations and that after Dr. Tennison was elected Bishop the Archbishop granted to him a Commendam Retinere with power to take and enjoy the Profits to his own use by the space of seven Months That this Commendam was confirmed under the Great Seal according to the Statute and the said Dr. Tennison did enjoy the same accordingly c. Mr. Attorney Demurs and Dr. Birch joyns in Demurrer and Judgment was given for the King c. And now it was argued in the first place That the Plea in Abatement was good and if so all that followed was Erroneous And to make that Plea good it was said that there is a variance between the Writ and Declaration that they are founded upon several Rights that upon arguing the Merits of the Cause it must be owned to be so on the other side That no Argument can be urged to maintain the Declaration in general but the Jure Prerogative and consequently it must be different from the Title or Interest pleno Jure They have said below that tho' the King's Interest is bound by Statutes yet his Prerogative is not This Distinction of the Rights must be allowed or else the main Judgment is not justifiable and that there is such a Distinction appears in Gaudy and the Archbishop of Canterbury's Case in Hob. 302. by the Presentation there recited which was drawn by the King's Counsel 't is ad nostram Presentation ' pertinet sive ex pleno Jure sive ratione Prerogative By Bracton 415. If the Writ be founded on one Right and the Declaration on another the Writ must be abated as in Case of Executors and Corporations In some Cases it must be agreed That the Writ may be General and the Count Special but none of those Cases will reach to this where several Rights are pretended 'T is no Objection to say That there is no Writ in the Register for this for that 's rather an Argument against their Prerogative Besides this Prerogative was never allowed till Dyer's time and in the old Books 't is denied where the King was not Patron In the Register 30. is a Writ Special quod permittant nos presentare idoneam personam ad Ecclesiam de c. que vacat et ad nostram spectat Donationem ratione Archiepiscopatus Cant ' nuper vacantis in manu existentis And another Sine titulo ut de jure and that is General ad nostram spectat Donationem Another Writ is there Ratione custodie terre et heredis upon a Tenure in capite And another Ratione foris facture unius et ratione custodie terre et heredis alterius per servitium Another Writ pro Domino Rege et aliis conjunctim Register 32. is another such by reason of the Vacancy of the Archbishoprick 'T is not an Answer That the Writ of Waste is General and the Count Special because that is not en auter droit Then it was said that it is true That where another Writ cannot be had a General Writ and Special Count are allowable but here a Special Writ might have been sued And there were cited the 1 Inst. 26 53 54 235 344 3 Cro. 185 829. And as to the Queen and the Archbishop of York's Case 3 Cro. 340. that doth not come up to this Case for tho' the Writ were General and the Count in Right of the Dutchy of Lancaster yet both were as Patron pleno jure and the Count did only shew how the Plaintiff came to be Patron but here they were several Rights as dictinct as a Claim by a Man singly and a Claim as Executor or in jure Vxoris In Answer to this were cited the Presidents in Mich. 31 Hen. 6. Rot. 65. Pasch 9 Eliz. Rot. 1408. or 1410. Hill 13 Car. 1. Rot. 486. Trin. 31 Car. 2. Dominus Rex versus Episcop ' de Worcester Writ General and Count Special Rastal 528 530. Then it was argued upon the Merits of the Cause as it was appearing upon the Declaration and Plea and Demurrer and therein three Queries were made as had been by the King's Counsel below 1. If the King hath any Prerogative to present upon an Avoidance by Promotion where neither himself nor the Bishop was Patron but
it Then as to the other Matter of the Damages which should have been inquired of upon the Demurrer 't was said That they were released upon Record and 't is plain that the Jury have found nothing upon that because the Conclusion of the Verdict doth shew that they inquired and found Damages only as to the concessit or assignavit they assess Damages for nothing else for if the Deed did pass the term then they find for the Plaintiff and assess Damages and if the term did not pass they find the Defendant Not guilty c. the Damages cannot therefore be for both for if they had found any for the Matter demurred upon it must have been with a si Contingat here 't is not so And tho' the Special Fact found had been against the Plaintiff it might have been for him upon the Demurrer and consequently the conditional finding of the Damages here can never be as to that Then it was further said That this might be supplied by an Inquest of Office in case it had not been released and there was cited Cheyney's Case Mich. 10 Jac. 1. 10 Rep. 118 119. Writ de Valore maritagij Issue on the Tenure and Verdict for the Plaintiff and no Value found of the Marriage and held ill because they say an Attaint lyes upon it that being the Point of the Writ and there the Rule is taken generally that where an Attaint lyes upon the finding the omission of finding such Matter cannot be supplied by a new Writ of Inquiry because such Writ of Inquiry would prevent the Party of the Benefit of his Attaint Then the Book says further That the Rule is that the Court ex Officio ought to inquire of such thing upon which no Attaint lyes and there the omission of its being found in the Verdict may be supplyed by a Writ of Inquiry of Damages as in the case of a Quare Impedit Poyner's Case Dyer 135. Issue found for the Plaintiff but the Jury per negligence were not charged to inquire of the four Points Plenarty ex cujus Presentatione si Tempus Semestre and the yearly Value of the Church there a Writ of Inquiry lyes de novo because upon them no Attaint lyes as is the 11 Hen. 4.80 because as to them 't is only an Inquest of Office and the Book says further That all the Cases to the contrary of that Rule have passed sub silentio without due Advisement and were against the Rule of Law So in the Case of Detinue the omission of the Value in the finding is fatal because an Attaint lyes upon a false Verdict in that particular So that by the Case cited it may be only an Inquest of Office as to part which is the present Case In that Case of a Quare Impedit in Dyer is cited a President for it in the Old Book of Entries 110. which is a false Folio for 't is in 93. b. and there is the very Entry of the Writ setting forth a Recuperavit presentation ' virtute Breais de Nisi prius Et quia nescitur utrum Ecclesia plena c. And as the Case is in Dyer the Plaintiff did there as the Plaintiff doth here release his Damages and had a Writ to the Bishop Now in Heydon's Case 11 Rep. 6. 't is held that no Attaint lyes upon an Inquest of Office and therefore 't is that if in a Trespass against divers Defendants some plead to Issue and one suffers Judgment to go by Default the Damages found on the Issue shall be chargeable upon all and the Inquiry of Damages on the Judgment by Default shall stay because no Attaint lyes upon that 'T is there also said that attaint lyes only on a Verdict on the mise of the Parties In Trespass three Issues Non culp ' to one part Prescription for a Common to another part and the Cattle raptim momorderunt in going to take Common to another c. The Jury find one for the Plaintiff and another for the Defendant and inquire not of the third Issue at all the Plaintiff relinquishing his Damages on the third Issue prays Judgment on the Verdict for the first and held that this prevented all Error Mich. 13 Car. 1. B. R. Brown and Stephens adjudged 1 Rolls Abridg 786. Then as to the Case of Vastuman and Row 11 Car. 1. B. R. in 2 Rolls Abridg. 722. Trespass for an Assault Battery and taking Corn Special Plea to the Battery and Demurrer thereupon and Non culp ' to the taking the Corn the Jury find no Damages upon the Demurrer said there That when Judgment is for the Plaintiff on the Demurrer the Damages for it cannot be assessed on a Writ of Inquiry but a Venire Facias de novo for the whole 'T was now argued that that was expresly against the Rule in Cheyney's Case and that in the Case in Rolls 't is put with the addition of a dubitatur But if that be Law there needs no Writ of Inquiry in this Case because the Damages as to that part are released and for this there is the express Case of Bentham 11 Rep. 56. In Annuity the Parties descended to Issue found for the Plaintiff as to the Arrearages but no Damages and Costs 't was held an imperfect Verdict and that it could not be supplyed by Writ of Inquiry of Damages yet the Plaintiff releasing the Damages and Costs had Judgment for him and a Writ of Error was brought and the Insufficiency of the Verdict was assigned for Error but the Judgment was affirmed because the Plaintiff had released it Dyer 369 370. Ejection ' custod ' terre hered ' and ill because intire Damages and for the beres no Ejectment lyes yet the Damages being released he had Judgment for the Land And 't was said to be there held That insufficient finding of Damages and finding of none are all one If a Release of that which is ill found will help where such thing released is directly in Issue much more it should do so where the thing released is but obliquely inquired of and was not put in Issue to the Jury and then 't was repeated what was said before that the Special Conclusion helps and prevents the General Intendment which otherwise would be had as to the Damages being intire and therefore 't was insisted that this made no Error but the Judgment in the Kings Bench stood good notwithstanding this Exception Then the Counfel for the Defendant did likewise wave this as not being the Cause of the Reversal in the Exchequer Chamber Wherefore it was argued for the Plaintiff That this Assignment or Grant found in the Verdict is void and passed nothing for that either it passed the whole Term or no part of it and that immediately that this must be agreed Then 't was said that it could not pass the whole for so to do was contrary to the Intention of all the Parties to the good will of the Grantor and even to the hopes of
had of Liberty of Speech not to make every thing a Cause of Action and to justifie this on the same side were quoted multitude of Cases too many to deserve a remembrance It was argued on the other side That these words toucht the Person in the most tender point viz. his Loyalty That it carried Scandal in it self not to be zealously affected to the Government which protects the whole that it was equivalent in Common Understanding to the calling him Traytor or Rebel That this was much more than affirming one not to be a good Man that disaffected implyed somewhat positive it 's meaning was that the Party hath an aversion a fixed settled Enmity to the Government that this was spoken of an Officer of great Trust that 't was a Reflection upon him with regard to his Office for Loyalty is as necessary as Justice in such a Post that to slander him in the one ought to be as actionable as to slander him in the other which is allowed it will because of the Reference to the Office in the nature of the words without any Special Damage that to deny these words to be actionable would tend to encourage Breaches of the Peace by provoking Challenges c. for that if Men cannot relieve themselves by Law they will be tempted to do it of themselves in other methods and that these words were a Reflection on the Government which employed Men thus disaffected and abundance of the Common Cases upon this Subject were quoted to shew what words would bear an Action in respect of Officers and Allegiance And then 't was argued strenuously that this was a Special Damage viz. to lose the Prince's Favour which every Man ought to covet and to lose a Place of Honour and Command both which the Jury have Found It was replyed on the behalf of the Plaintiff in the Writ of Error That as to the Reflection on the Government it might perhaps warrant an Information or Indictment but not an Action That as to Challenges there were vast variety of words which are reckoned provocative in the highest degree As the giving the Lie calling a Man a Coward and the like and yet will bear no Action And at last upon Debate the Judgment was Reversed John Duvall and Elizabeth his Wife Appellants Versus William Terrey of London Merchant Respondent THE Appeal was to be relieved against a Decree in Chancery The Case was That the Appellant Elizabeth had entred into a Bond of 140 l. Penalty conditioned for the payment of 72 l. on the Twentieth of April 1676. and by reason of several Promises and Delays of Payment and insisting upon Priviledge and other like Occasions it was not put in Suit till lately and then the Respondents were Arrested And upon a Declaration the Appellants pleaded Payment at the Day And after Issue joyned and notice of Trial upon some discovery of a Defect in the Evidence to prove the Bond Motion was made in the King's Bench to alter the Plea which denied a Bill was preferred in Chancery on suggestion that Elizabeth had never Executed it or that 't was obtained by Fraud and that there was no Consideration for the same and the Respondent preferred a Bill praying a Discovery if such Bond c. Upon Examination of Witnesses and after publication passed the Cause was heard and upon the hearing 't was ordered That the Appellants should not be relieved save against the Penalty of the Bond and that it be referred to one of the Masters to compute the Principal-money and Interest due thereon and to tax for the Respondent his Costs both at Law and in that Court and that what should be found due for the Principal Interest and Costs be paid by the Appellants at such Time and Place as the Master should appoint who computed the Principal and Interest at 154 l. and the Costs at 67 l. and to be paid the Twentieth of October following Upon the hearing of this Appeal there were two Queries made 1. Whether there being some difference in and about the proof of the Bond the Court ought to have made a Decree without directing a Trial at Law upon the validity of the Bond But 't was held That the Bond not being denied in pleading upon the Issue at Law the Chancery had done right and could not well have directed any other Issue than what the Parties themselves had joyned in at Law and tho' 't was pretended that the Attorney haâ— pleaded thus without direction the Court did not much regard that pretence because of the proper Remedy which the Law gives against such an Attorney if the pretence were true and therefore they did not much consider that Another Query was Whether the Court of Equity could justly award more than the Penalty and objected that the Order being to save against the Penalty no more ought to have been decreed But 't was said That notwithstanding that when the same was referred to a Master to tax Principal and Interest the Order bound the Party to pay both tho' it amounted to more than the Penalty and the meaning of the first part was only to relieve against the Penalty in case the Principal and Interest came to less than the Penal Sum especially the same coming to be heard upon cross Bills and as this Case was circumstanced after such delay and such pleading in the Court of King's Bench And as to Costs held no cause for an Appeal in this Case nor in truth was it ever known to be a Cause if the Merits were against the party Appellant And so the Decree was affirmed in the whole William Dolphin and Katharine his Wife Appellants Versus Francis Haynes Respondent APpeal to be relieved against a Decree in Chancery made by the Master of the Rolls Nov. 10. 1696. The Case was thus That one Paris Slaughter of London being Guardian to Katharine the Appellant during her Infancy he placed her with his Kinsman Chambers Slaughter near Worcester and sometimes boarded her in that place for her Education and the Respondent and the said P.S. being Correspondents Paris Slaughter ordered the Respondent to pay the said Chambers what Sums should be called for upon the account of Katharine In pursuance whereof several Sums were paid upon her account and the same were allowed again to the Respondent by P. S. The Appellant Katharine having just attained her Age she came to the Respondent and desired more Money as by the Order of P. S. and accordingly two several Sums were paid her and Receipts taken from her as by the Order of P. S. The Appellant Katharine did afterwards come to an account with P. S. which was fairly stated in Writing and they executed General Releases each to the other But the said two Sums not being entred in the Books of P. S. were not accounted for by the Appellant Katharine and the Respondent not having received any Allowance from P. S. in his Life time nor having as he thought any
to be the same i.e. in general the Common Law to govern in both places from the difference assigned between Ireland and Scotland it lies not to Scotland because a distinct Kingdom and governed by distinct Laws and it lies to Ireland because ruled by the same and consequently if a Writ of Error lies on the final Judgment there it 's a good Argument that the same Law prevails there These Plantations are parcel of the Realm as Counties Palatine are Their Rights and Interests are every day determined in Chancery here only that for necessity and encouragement of Trade and Commerce they make Plantation-Lands as Assets in certain Cases to pay Debts in all other things they make Rules for them according to the common Course of English Equity The distance or the contiguity of the thing makes no alteration in the Case And then 't was said as at first That this then was the same case as if the Imprisonment had been in England or on Shipboard as to the Rules of Justification that if there were another Law which could justifie it the same ought to have been certainly pleaded As to the Instructions those do not appear and therefore are not to be considered in the Case and they should have been set forth and no extraordinary Power is to be presumed unless shewn for every Man in pleading is thought to make the best of his own Case and consequently that if 't would have made for him the same would have been shewn and because they are not shewn they must be thought directive of a Government according to the Laws of England since 't is to a Subject of this Realm to govern other Subjects of this Realm living upon a part of this Realm and from the King thereof who must be supposed to approve those Laws which make him King and by which he reigns Then 't was argued Suppose this Governour had borrowed Money of a Man in the Island and then had returned to England and an Action had been brought for it and he had pretended to ustifie the receipt of it as Governour he must have shewn his Power the Law and how he observed that Law the like for Goods the same reason for Torts and Wrongs done vi armis Now the Court below could consider no other Power or Law to justifie this act but the Common Law of England and that will not do it for the Reasons given and if it be justifiable by any other it must be pleaded and what he hath pleaded is not pursued c. As to the Commitment by a Council of State what it means is hardly known in the Law of England and that Authority which commits by our Law ought to be certain and the Cause expressed as all the Arguments upon the Writ of Habeas Corpus in old time do shew but here 's no Councel and 't is not said so much as that he was debito modo onerat ' And as to the Demurr ' that confesses no more then what is well pleaded And as to Consequences there 's more danger to the Liberty of the Subject by allowing such a Behaviour then can be to the Government by allowing the Action to lye And therefore 't was prayed that the Judgment might be affirmed It was replyed on behalf of the Plaintiff in the Writ of Error That notwithstanding all that had been said the Laws there were different tho' the Foundation of them was the Common Law that they would not enter into that Question What sort of Title at first gave Right to these Lands but that this was a Commitment by a Councel of State And as to the Objection of too general Pleadings in male arbitrarie exercendo c. tho' the inducement of the Plea was so There were other Matters more particularly pleaded the altering the Decrees in his Chamber which was sufficient And as to the Objection That 't is not alledged in the Pleadings that the Charge in Councel against Wytham was upon Oath they answered That 't is not effential tho' prudent to have the Charge upon Oath before Commitment Matters may be otherwise apparent And as to the Objection That the Warrant of the Councel for the Commitment was not shewn they said that it lay not in their power because 't was delivered to the Provost Marshal as his Authority for the Capture and Detention of him and therefore did belong to him to keep And that the Councel tho' they were not a Court yet they had Jurisdiction to hear the Complaint and send him to another Court that could try the Crime and tho' it did not appear that the King gave any Authority to the Governour and Councel to commit yet 't is incident to their Authority as being a Councel of State the Councel here in England commit no otherwise and where the Commitment is not authorized by Law the King's Patent gives no power for it But the Government must be very weak where the Councel of State cannot commit a Delinquent so as to be forth-coming to another Court that can punish his Delinquency And therefore prayed that the Judgment should be reversed and the same was accordingly reversed Philips versus Bury WRit of Error to reverse a Judgment given for the Defendant in the Court of King's Bench where the Case upon the Record was thus Ejectione firme on the Demise of Painter as Rector and the Scholars of Exeter Colledge in Oxon for the Rector's House The Defendant pleads specially That the House in question is the Freehold of the Rector and Scholars of the Colledge but he says That he the said Dr. Bury was then Rector of that Colledge and that in right of the Rector and Scholars he did enter into the Messuage in question and did Eject the Plaintiff and so holds him out absque hoc That Painter the Lessor of the Plaintiff was at the time of making the Lease in the Declaration Rector of that Colledge hoc paratus est verificare c. The Plaintiff replys That the Messuage belongs to the Rector an Scholars but that Painter the Lessor was Rector at the time of the Lease hoc petit quod inquiratur per Patriam c. and thereon Issue is joyned and a Special Verdict The Jury find that Exeter Colledge is and was one Body Politick and Corporate by the Name of Rector and Scholars Collegij Exon ' infra Vniversitat ' Oxon ' that by the Foundation of the Colledge there were Laws and Statutes by which they were to be governed and that the Bishop of Exeter for the time being and no other at the time of founding the Colledge was constituted by virtue of the Statute concerning that Matter hereafter mentioned ordinary Visitor of the same Colledge secundum tenorem effectum statut ' eam rem concernent ' That the Bishop of Exeter who now is is Visitor according to that Statute Then they find the Statute for the Election of a Rector prout c. Then they find
person As to the Objection from Appleford's Case Sid. 71. there that Writ was fully answered and they could not Examine into the truth and falsity of that Answer but must leave the party to his Action and it doth not thence follow That in an Action there 's no remedy But the strongest Objection is that in pleading a Deprivation you need not shew the Cause and it must be taken sor just and good as Moore 781. Jones 393. Moore 228. 2 Roll's Abridg. 219. 9 Edw. 4.25 that need only shew by whom All these stand upon the same foundation they were by Authority Ecclesiastical and must stand till Repealed and even those Cases of the High Commission Court they were by the course of the Ecclesiastical Law which was saved to them by the Proviso in 1 Eliz. and therefore shall be intended so till the contrary appear and even there 't was debito modo privatus which implies all due requisites but here the whole is disclosed upon a special Verdict 't is not found here that he was duly deprived but that he was deprived after such a manner which if it appears to have been without Authority must be null As to Ley's Opinion in Davis 47. that a Sentence of Deprivation in case of a Donative by an Ordinary was effectual in Law till Reversed that 's not Law for 't was all coram non judice Bro. Praemunire 21. Nat. Br. 42. the Ordinary cannot visit a Benefice Donative Then they Object That this is an Elemosinary interest and the Rector took it under those terms of subjection to such a Visitor but that is the Question what those terms are and the consequences of such an Opinion may be dangerous to the Universities those Nurseries of Learning and good Manners 't is to make them too precarious and dependent upon will And as to the pretence that the Land was the Founders and he might dispose of it at pleasure it was answered that before the Gift the Lands and the Profits and the Ownership were all subject to the Common-Law and the Owner could not give such a Power as is pretended no more than he could oblige all differences about his Estate to be finally determined by a particular person and his Heirs or Successors no Absolute Power can be fixed in this Nation by Custom but rather then the same shall be allowed the Custom shall be void 1 Inst 14. Davis 32. 2 Roll's Abridg. 265. Copyholds were Anciently at mere will and pleasure but the Lord is now obliged to and by certain Rules by our Law the Power of Parents over Children is qualified and restrained 't is no Argument to say that the Visitor comes in loco or vice fundatoris for the Alienation and the Statutes did oblige even himself and though perhaps if no Statutes had been made his Visitatorial Power had been much larger yet since 't is limitted to once in five Years and his Acts to be with others consent 't is as much as if he had given the Colledge a priviledge of exemption by Words Express from any Visitation at all other times and in all other manners than those which are mentioned then was Cited the Case of Terry and Huntington in Scaccar ' Trin. 20 Car. II. in Hardres's Rep. 480. before Sir Matthew Hale Trover for Goods seized by Warrant of the Commissioners of Excise the Query was when they adjudged low Wines to be strong Wines perfectly made upon 12 Car. II. cap. 23. whether it might be drawn in Question again by an Action in Westminster-Hall and held it might though they were Judges and though the Statute gave an Appeal and the reasons given there seem to reach this Case because they had a stinted limitted Jurisdiction and that implies a Negative viz. that they shall not proceed at all in any other Cases and that special Jurisdictions might be and frequently were circumscribed 1. with respect to place as a Leet or a Corporation Court 2. with respect to persons as in the Case of the Marshalsea 3. with respect to the subject matter of their Jurisdiction And if Judgment be given in another place or upon other persons or about other matters that all was void and coram non judice and though 't was objected that strong Wines were within their Jurisdiction and that 't was only a mistake in their Judgment yet it appearing upon the special Verdict that they were low Wines the Action was held maintainable this is so plain it needs no Application Then it was argued that this Sentence was void 1. because there was no Authority to visit at this time there having been a Visitation by the Commissary within five Years before that no words in the Statute make him a Visitor generally but only secund ' stat ' i.e. upon request or without request a quinquennio in quinquenium Semel now here 's no request found then the Act of Dr. Masters as Commissary is an exercise of the Visitor's Office Colmer's Appeal was to the Bishop as Visitor Semel implies a negation of having it more frequent according to Grammar it signifies once and not often er or once for all If Semel comes alone without any other Particle then 't is but once and if with another as ne Semel 't is not once or never and the liceat Semel can have no other Construction it can't mean once at the least as was argued below especially as opposed to request and no Argument can be drawn from the necessity of frequent Visitations for that Evils are not to be presumed and over inferior Members there 's a Power in the Rector and four Seniors now Dr. Masters was not requested by the Colledge nay they protest against it in some Degree i. e. so far as relates to Colmer's restitution the Oath of a Scholar being against Appeals and the Oaths and the Contents of them are to be deemed part of their Constitution But supposing that Business might be examined as a thing proper for Consideration when an inquiry is made into the State of the College and the admission continuance and removal of the Members is certainly one Article of such inquiry yet that must be done in Visitation and as Visitor for there 's no other Power found in the serdict but that 2. Admitting that no Action of Dr. Masters to be Visitation yet this Sentence is void because it held above three days and the Statutes say after three days it shall be taken pro terminat ' dissolut ' On the 16. of June he comes with intention to visit doth an Act proper to his Office and Business examines the Summoner about the Citation if he had come and only examined and made no Decree it had been a Visitation and either 't is a quinquennial one of it self or it is a Commencement of one and either one way or other it makes the Deprivation void 't is afterwards entred as a Visitatorial Act Eundem actum pro parte hujusmodi negotii Visitationis
of the greatest Members of the House Selden Hollis Maynard Palmer Hide c. that the Earl Marshal can make no Court without the Constable and that the Earl Marshal's Court is a grievance Rushworth 2 Vol. 1056. Nalson's 1 Vol. 778. Spelman in his Glossary verbo Mareschallus seems to say 't was officium primo Servile and that he was a meer Servant to the Constable and gives much such another account of it as Cambden doth and pag. 403. is an Abstract or rather Transcript of all that is in the Red Book in the Exchequer about the nature of this Office and there 't is said that if the King be in War then the Constable and Marshal shall hold Pleas and the Marshal shall have the Amerciaments and Forefeitures of all those who do break the Commandments of the Constable and Marshal and then it was further alledged by the Councel for the Defendant in the Writ of Error that they knew of no Statute Record or Ancient Book of Law or History that ever mentioned the Earl Marshal alone as having Power to hold a Court by himself So that taking it as a Court held before an incompetent Judge a Prohibition ought to go and the Party ought not to be put to his Action after he has undergone imprisonment and paid his Fine since it hath the semblance of a Court and pretends to act as such and if it be a Court before the Earl Marshal alone in case it exceeds the Jurisdiction proper to it a Prohibition lies either by force of the Common-Law which states the boundaries and limits of that Jurisdiction or by force of the Statute of 8 Rich. 2. which is not repealed by the subsequent Law in that Reign and if such Prohibition do lie in any Case that here was cause for it the subject matter of the Articles being only a wrong if any to a private Officer who had his proper remedy at the Common-Law and therefore it was prayed that the Judgment should be affirmed and it was affirmed Smith Vx ' Versus Dean and Chapter of Paul 's London and Lewis Rugle APpeal from a Decree of Dismission made by the Lord Jeffreys the Bill was to compel the Dean and Chapter as Lord of the Mannor to receive a Petition in nature of a Writ of false Judgment for Reversing a common recovery suffered in the Mannor Court in 1652. whereby a Remainder in Tail under which the Plaintiff claimed was barred suggesting several Errors in the proceeding therein And that the said Lord might be commanded to examine the same and do Right thereupon To this Bill the Defendant Rugle demurred and the Dean and Chapter by Answer insisted That 't was the first Attempt of this kind and of dangerous consequence and therefore conceived it not fit to proceed on the said Petition unless compelled thereto by course of Law That Rugle being the Person concerned in interest to contest the sufficiency of the Common-recovery they hoped the Court would hear his defence and determine therein before any Judgment were given against them and that they were only Lords of the Mannor and ready to Obey c. and prayed that their rights might be preserved This demurrer was heard and ordered to stand And now it was insisted on by the Council with the Appellant that this was the only Remedy which they had that no Writ of Error or false Judgment lies for Reversing of a recovery or Judgment obtained in a Copyhold Court that the only method was a Bill or Petition to the Lord in nature of a Writ of false Judgment which of common right he ought to receive and to cause Errors and defects in such recovery or Judgment to be examined and for this were Cited Moore 68. Owen 63. Fits N. B. 12. 1 Inst 60. 4 Rep. 30. is such a Record mentioned to have been seen by Fenner where the Lord upon Petition to him had for certain Errors in the proceedings Reversed such Judgment given in his own Court 1 Roll's Abridg. 600. Kitchin 80. 1 Roll's Abridg. 539. Lanc. 98. Edward's Case Hill 8. Jac. 1. by all which it appears that this is an allowed and the only remedy Then it was argued That in all Cases where any Party having a Right to any Freehold Estate is barred by Judgment Recovery or Fine such Party of common Right may have a Writ of Error if the same be in a Court of Record and a Writ of false Judgment if in a Court Baron or County Court and reverse such Judgment Recovery or Fine for Error or Defect and there can be no reason assigned why a Copyholder especially considering the great quantity of Land of that Tenure in England should be without remedy when a false Judgment is given and the rather for that in Real Actions as this was the Proceedings in the Lord's Courts are according to those in Westminster-hall and now tho' a Common Recovery be a Common Assurance yet it was never pretended that a Writ of Error to Reverse it was refused upon that pretence and if the Lord of a Mannor deny to do his Duty the Chancery hath such a Superiour Jurisdiction as to enjoyn him thereto 'T is the Business of Equity to see that Right be done to all Suitors in Copyhold Courts Fitsh Abridg. Subpena 21. 2 Cro. 368. 2 Bulstr. 336. 1 Rolls Abridg. 373. If an Erroneous Judgment be given in such Court of a common Person 's in an Action in the Nature of a Formedon a Bill may be in Chancery in nature of a false Judgment to Reverse it and Lanc. 38. Tanfield says that he was of Counsel in the Case of Patteshall and that it was so decreed which is much more then what is here contended for and tho' Common Recoveries are favoured and have been supported by several Acts of Parliament yet no Parliament ever thought fit to deprive the Parties bound by such Recoveries of the benefit of a Writ of Error On the other side 't was urged in defence of the Dismission That the Person who suffered this Recovery had a power over the Estate that she might both by Law and Conscience upon a Recovery dispose of it as she should think fit that she hath suffered a Recovery and that it was suffered according to the custom of the Mannor tho' not according to the form of those suffered in Westminster-hall That the suffering of Recoveries in any Court and the Methods of proceeding in them are rather notional then real things and in the Common Law Courts they are taken notice of not as Adversary Suits but as Common Assurances so that even there few Mistakes are deemed so great but what are remedied by the Statute of Jeofailes or will be amended by the Assistance of the Court And if it be so in the Courts at Westminster where the Proceedings are more solemn and the Judges are Persons of Learning and Sagacity how much rather ought this to stand which was suffered in 1652. during the Times of
of making a new Presentation And in all pleadings of this sort the notice is generally alledged to be the same day or within a day or two at the most That certainly it ought to be with convenient notice But then it was urged That the six Months ought not to be from the Death of the last Incumbent if there be a person Criminal presented which the Patron doth or may know as well as the Bishop there the six Months must be from the Death but if it be upon a refusal for a Cause which lies only in the Bishop's knowledge then it must be only from the notice and that notice ought to be personal but if the Months incur from the Death the notice should be in conveient time and what that is the Court must Judge Then it was urged from Speccot's Case That this Plea is too general and uncertain that a Temporal right being concerned the Bishop ought to have set forth more particularly and distinctly the cause of his Refusal 8 Rep. 68. the certain cause of a Divorse must be shewn 11 Hen. 7. 27. 2 Leon. 169. The Ordinary is a Judge only of the matter of Fact if true not if this matter pretended be a cause of Refusal he ought to alledge that so particularly as to manifest it to the Court in which the Suit depends That 't is a legal cause of Refusal He is not a Judge whether Hodder's insufficiency in any one point of Learning be a good cause of Refusal for if it should be so the Temporal Right of Patronage would be very precarious The Court ought to have enough before them whereon to Judge of the Cause as well as that on Issue may be joyned and tried here 't is only said that he is less sufficient not that he is altogether illiterate this will put it in the Power of the Ordinary to refuse for want of knowledge in any Learning as he thinks fit as Mathematicks or Anatomy without which a Man may be well Qualified to be the Rector of a Benefice and the consequence of such Opinion will be much to the prejudice of Lay Patrons that certainty in Pleading ought to be encouraged for the prevention of the exercise of Arbitrary discretionary Power that the Wisdom of the Common-Law is to reduce things to single Questions that the Determination upon them may be plain and certain and known and the reasons of such Determinations may appear which cannot well be done if general Allegations or Pleadings be countenanced for which and other Reasons urged by the Counsel who argued with the Judgment 't was prayed that the Judgment might be affirmed It was replied on behalf of the Plaintiff in the Writ of Error that the Books were very plain that the six Months were to incur from the Death of the Incumbent and then if there were not notice in convenient and due time in order to enable the Patron to present again that this ought to come on the other side That to require Learning in Presentees to Benefices would promote the Honour of the Church nay of the Nation in general That every Man who knew this Presentee and his Ignorance even as to the Latin Tongue must acknowledge that the Reverend Prelate who refused him had done worthily and becoming the Character of his Order Family and Person and therefore 't was prayed that the Judgment should be Reversed and it was Reversed Robert Davis versus Dr. John Speed WRIT of Error on a Judgment in Ejectment in the King 's Bench for certain Lands in Hamp-Shire the Declaration was upon the Demise of Francis Cockey The Verdict finds that William Horne and Ann his Wise were seized of the Lands in Question in their Demesne as of Fee in Right of the Wife that they made and executed a Deed Covenanting to Levy a Fine thereof to the use of the Heirs of the said William Horne lawfully begotten and to be begotten on the Body of the said Ann his Wife and for default of such Issue then to the use of the right Heirs of the said William Horne for ever and a Fine was Levied accordingly to these uses that William and Ann were seized prout Lex postulat that they had Issue William Horne their Son who Died without Issue in the Life of William and Ann that she Died and William the Father and Husband Survived her that then he Died without Issue that the lessor of the Plaintiff is Sister and Heir of the said William Horne that after his Death she entred and was seized prout Lex postulat that Elizabeth Joanna and others were Co-heirs of the said Ann that their Estate and Interest came by mean conveyances to the Defendant Speed That he was seized prout Lex postulat that the Lessor of the Plaintiff entered and Ousted the said Speed and made the Demise in the Declaration and that the Plaintiff entered and was Possessed till the Defendant entered upon him and Ousted him And if it shall appear to the Court that the Desenant's entry was lawful they find the Defendant not Guilty and if c. upon this special Verdict Judgment was given in B. R. for the Defendant And now it was Argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was Erroneous and ought to be Reversed for that these Lands belonged to the Heirs of the Husband by force of this Deed and Fine that this was in the Case of an Use which was to be construed as much according to the intent of the Parties as a will That if by any construction that intent could be fulfilled it ought That the intent of the parties here was plain to give this Estate to the Husband and his Heirs that uses are to be governed by Equity and that therefore the meaning of the persons concerned was to be pursued That the Woman intended to take nothing her self nor to reserve any thing but to part with the whole That here was an use by implication in the Husband tho' none could result back to the Husband because he had none before but that in this case as in that of a Will an use might by implication very well be raised to the Husband and then this might be good by way of Remainder after the Death of the Husband or create an Estate Tail in him by coupling the use implied to him for Life with that to the Heirs of his Body and that if it were not so then that it was good as a springing contingent use to the Heirs of the Body of the Husband c. and that in the mean time till that Contingency happened the same was to the use of the Wife and her Heirs And that this Construction contradicted no Rule of Law That it was no more than was allowed in case of a Will by way of Executory Devise according to Pell and Brown's Case in 2 Cro. that the Estate should remain in the Wife and her Heirs during the Life of the Husband
Appellants were relieved Richard Carew who married Penelope would have no Portion with her 'T was answered That that could not alter the Case the Agreement and Intention of the Parties being the most considerable Matter and besides Richard enjoyed the Estate during his Life without impeachment of Waste And as to the Debts 't was answered That those were no Ingredients in the Question however there would be 4000 l. paid towards it and the Personal Estate was more than enough to pay the residue For which and other Reasons 't was prayed that the Dismission might be Reversed On the other side it was insisted on with the Decree 1. That the Limitation by the Settlement in July 1674. to the Heirs of Penelope upon payment of 4000 l. by them to the Heirs of Richard Carew within Twelve Months after the death of Richard and Penelope without Issue at the time of the decease of the Survivor of them is a void Limitation the Fee-simple being before limited to Richard and his Heirs and so not capable of a further Limitation unless upon a Contingency to happen in the Life of one or more Persons in being at the time of the Settlement which is the furthest that the Judges have ever yet gone in allowing these Contingent Limitations upon a Fee and which were the Bounds set to these Limitations by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk that tho' there were such Expressions as had been read on the other side yet the Bounds set by him to these Limitations were only dependent upon Life or Lives in being and never as yet went any further And if they should be Extended and allowed to be good upon Contingencies to happen within Twelve Months after the Death of one or more Persons they may be as well allowed upon Contingencies to happen within a Thousand years by which all the Mischiefs that are the necessary Consequents of Perpetuities which have been so industriously avoided in all Ages will be let in and the Owner of a Fee-simple thus clogged would be no more capable of providing for the Necessities and Accidents of his Family then a bare Tenant for Life 2. If this Limitation were good 't was urged That the Estate limited to the Heirs of Penelope was virtually in her and her Heirs must claim by Descent from her and not as Purchasors and by Consequence this Estate is effectually barred by the Fine of Penelope the design of limiting this Power to the Heirs not being to exclude the Ancestor but because the Power could not in its nature be executed until after the decease of the Ancestor it being to take effect upon a Contingency that could not happen till after that time and this Bill and Appeal was not only to have the said Richard Carew who married Penelope to have not one Farthing Portion with his Wife but to make the now Respondent Sir Richard Carew to lose the 4855 l. which his Father Sir John Carew paid as charged on the Lands in question For which Reasons and many others well urged about the Mischief and Danger of Perpetuities and their Increase of late years to the intangling and ruine of many Families it was prayed that the Decree of Dismission might be affirmed but the same was Reversed Sir William Morley Knight of the Bath Plaintiff Versus Peter Jones Defendant WRit of Error to Reverse a Judgment in B.R. in Ejectment upon the Demise of Bellingham upon a Special Verdict which finds That Anne Bowyer Spinster was seized in Fee of the Mannor of Frencham that the said Anne and Edward Morley Esq and Sir William and J. Wells ante tempus quo c. viz. 22 July 1664. did make and as their Deed deliver a certain Indenture with their Seals sealed whereby the said Anne demises the Mannor aforesaid to Sir William and Wells and their Executors for one Month from the Day next before the Day of the Date that Sir W. and Wells entred and were possessed that they the 23d of July in the said Year sealed and as their Deed delivered another Indenture with their Seals sealed whereby the said Anne reciting a Marriage intended between Anne and Edward and that Edward had agreed to settle a Jointure out of his Lands to the value of 300 l. per Annum and that the said Anne had agreed in case the Marriage took effect and a Jointure were made as aforesaid to settle the said Mannor on him and his Heirs and to particular Trusts after-mentioned until the same be performed She the said Anne in consideration of the Marriage and in performance of the Agreement on her part Bargains Releases and Confirms to Sir W. and Wells their Heirs the said Mannor and all her Right c. and the Reversion c. in Trust for the said Anne and her Heirs until the Marriage take effect and assurance of a Jointure be made as aforesaid and after such Marriage and Assurance of such value as aforesaid then to the use of Edward and his Heirs c. Then the 1st of August 1664. a Marriage was had then the 29th of Jan. 1665. a Deed is Executed between the said Edward and Anne of the first part and Young and Truster as Trustees on the other part reciting that a Fine is already acknowledged and agreed to be levied in due Form of Law next Hillary Term between the said Young and Truster Plaintiffs and the said Edward and Anne his Wife of the said Mannor of Frencham and thereby declared that the said Fine should be to the use of Edward and his Heirs Two days after the Execution of that Deed and before the Fine levied viz. 31 Jan. 1665. another Writing indented was made and executed under Seal between the said Edward of the one part and the said Anne of the other part whereby they both in Consideration of the said Marriage and other good Causes did Covenant Consent and Agree to revoke all former Grants Bargains Contracts Writings Covenants and Obligations made or done between them or any other for them until the said Edward had performed the Agreements in the said Marriage Settlement on his part both in Law and Equity and that in default thereof it might be lawful for the said Anne and her Heirs to enter into the said Mannor and Land conveyed by the said Settlement without the lett of the said Edward and his Heirs Afterwards the Fine was levied Octabis Purificationis which was the 9th of February in that Term And afterwards by Indenture between the said Edward Morley of the one part and one Henry Doble of the other part dated 9 July 1666. the said Edward in consideration of 600 l. Mortgages the said Mannor to Doble and his Heirs Then the Money not being paid by Edward Morley to Doble Doble did 2 June 1676. in consideration of 600 l. with Interest paid by Sir William Morley conveys the said Mannor to one Thomas Young that Edward Morley did never convey the Lands agreed
specially That if Parol Evidence or a naked Averment should be admitted then they find to such Uses But here 't is like finding the Badges of Fraud without finding the Fraud it self or a Demand and Denial without finding a Conversion upon neither of which can the Court judge the Thing to be a Fraud or a Conversion And for these and other like Reasons it was prayed that the Judgment might be reversed It was argued on the other side with the Judgment That this Fine thus levied was not to the use of the Husband but of the Wife and her Heirs that the Fine is not to the Uses in the Deed of the 29th but controuled by that of the 31st 'T was agreed that if there be a Deed to levy a Fine and in pursuance thereof a Fine is levied to the Person of the Lands and at the time no Proof shall be allowed that the Fine was to any other Use but if it be in case of a subsequent Deed then Averment may be against it but by the making of a precedent Deed all Parties are estopped to contradict it unless there be another Deed of equal Nature to controul that Where the Deed is punctually observed there 's no liberty to aver the contrary but where 't is not pursued the Averment is consistent Where it doth vary yet if nothing doth appear to the contrary there the fine shall be construed to be to the Uses of the Deed by construction of Law a Wife is bound by the Husband's Declaration and if the Fine be in pursuance of the Husband's Deed 't is as binding to her as if she were a Party An Infant cannot avoid a Fine where there was a Deed agreeable but by reversing it Then 't was argued That here was such a Variance as did allow of such Averment that 't is true the Deed of 29. had been a good Declaration of the Uses of this Fine notwithstanding the Variance if the Writing of 31. had not been made but there being a Variance that is admissible that this Fine now found differs as much from that in the Deed as if it had been levied at a time after that levying it before makes it not the same The Woman perhaps here did agree to levy a Fine at this distance of time that she might in the mean while have a competent Provision out of her Husband's Estate for her Joynture then when she levies this Fine at a different time she doth not do it in pursuance of the first Deed. Then 1 Rep. 76 99. 3 Bulstr 231. 2 Rolls Abridg 251. 2 Cro. 646. 2 Rolls Abridg. 799. Savil 124. 1 Leon. 210. 3 Cro. 210. 1 And. 240. were quoted and either answered or applied to this Point of Variance Then 't was said That there was a difference between a Fine that varies from a precedent Deed and a Fine that is followed with a subsequent Deed or Declaration of Uses If there be a subsequent Declaration the Heir at Law cannot aver that 't was to the use of the Conusor and his Heirs or to any other use then what is in the Deed the Party himself or his Heirs cannot aver it but they are estopped by this Deed tho' subsequent however a Stranger is at liberty to make such Averment But if a Deed be precedent and the Fine varies and is not the same there none are estopped neither the Party himself his Heir nor a Stranger because the Fine stands alone without any Deed referring to it and declaring the uses of it ' Then 't was urged That this second Deed was sufficient to declare the uses of this Fine If the use arise upon or by transmutation of the Possession as by Fine or Feoffment 't is sufficient without any Deed the use arises only upon the Parties Declaration or Appointment If without a transmutation of Possession there must be some Agreement binding the Party upon some Consideration for the use being founded in Equity the Chancery would never relieve where there was no transmutation of Possession or Agreement upon Consideration and if in Consideration of Blood it must be by Deed because the Consideration is not binding without it Moore 's Rep. Callow and Callow If this Writing of 31. had expresly declared that it should enure to the Husband and his Heirs upon such a Contingency this had been a good original Declaration of the use and would have altered the Estate because of the transmutation of the Possession and as 't is now penned 't is a good Writing sufficient to declare the uses of the Fine any sort of Agreement whereby the Parties intent appears is sufficient an use is an equitable thing and if it appears to have been intended that is enough 2 Leon. 14. Brent's Case any Agreement between the Party that hath the Estate and him who is to have it may raise an use in this Case a Bargain and Sale of the Lands carries the use tho' no mention of it 8 Rep. Fox's Case Crossing and Scudamore In this Case there was an Agreement betwixt Husband and Wife that he should have the Lands if he made a Jointure A Bargain and Sale tho' not inrolled a Charter of Feoffment without Livery shall raise the use of a Fine levied between the same Parties therefore this Writing is a good Appointment But suppose it were not so of it self 't is sufficient to controul that of the 29th for 't is agreed thereby that all Deeds shall be revoked which shews plainly that the Fine was not to be to the uses mentioned in that Deed especially when it varies from it A Parol Declaration of the Mind of the Party will be enough to controul and hinder the raising of an use by the Deed and Fine where different and if so then the use here is to the Wife and her Heirs Then supposing the Variance frivolous and immaterial this Writing of the Husband and Wife is a good appointment the Trustees or Conusees of the Fine need not to be Parties to the appointing or declaring of the uses The Indenture precedent is but directory and if there be another direction under Seal before the Fine it must over-rule the first Writing of it self seems enough 2 Cro. 29. 3 Cro. 571. But suppose an Indorsment on the Indenture revoking one use before the Fine be levied would not that controul it This is rather like a last Will and the last before the Fine must stand A Covenant to stand seized must have all the necessary Parts of a Deed so as to have been obligatory in Chancery before the Statute but a meer Declaration of uses need not be so formal The use declared by the 29th was always revocable till the Fine was levied and this is sufficient both to revoke the last Declaration and to declare new uses this amounts at least to a Deed-Poll and therefore sufficient Then were cited Moore 22 512. Latch 139. and many other Authorities And upon the whole 't was prayed that the Judgment should