power lawfully not to abate it and us'd that last lawful power and not the first and wrong'd none in using it To this may be added That the Iudgment upon a simple Contract is the Act of the Court and compulsory to the Executor and he hath then no Election but must obey the Iudgment In conclusion though it were agreed That in the Action of Debt brought by Allington upon a simple Contract Iudgment ought not to have been given against the Defendant being Administrator but the Writ should have abated because the Administrator was not chargeable And though the Iudgment given were erroneous and for that cause reversible yet standing in force unrevers'd It is a good Barr to the Plaintiffs Action But lest this should countenance Iudges abating the Writ ex officio in such Actions brought or Plaintiffs to bring Error upon Iudgments given in such Actions I conceive the Law is clear That Iudges ought not ex officio to abate such Writ nor otherwise than when the Executor or Administrator Defendant in such Action demurrs and demands Judgment of the Writ and that Iudgment given against such Defendants not demurring to the Writ is not Erroneous unless for other cause If it be urg'd further That though a Iudgment obtain'd upon a simple Contract be a barr to an Action of Debt brought after upon an Obligation or to an Action of the Case upon an Assumpsit to pay mony as the present Case is Yet it should not barr if the Action upon which it was obtain'd were commenc'd pending a former Action upon an Obligation or upon an Assumpsit for mony in which the Intestate could not have waged his Law The answer is as before such Iudgment barrs until revers'd if admitted to be reversible as it is not But the Law is setled That wheresoever an Action of Debt upon Bond or Contract is brought against a man he may lawfully confess the Action and give way to a Judgment if there be no fraud in the Case although he have perfect notice of such former Suit depending nor is there any restraint or limit of time for confessing an Action brought upon a simple Contract more than upon a Bond. And to satisfie any Debt upon Obligation 5 H. 7. f. 27. b. Moore Scarleâ— Case f. 678. Crook 38 El. f. 462. Green Wilcocks Case before a Iudgment so obtain'd is a Devastavit in the Executor or Administrator and so it is to satisfie any latter Judgment if there be not assets to satisfie the first also So are the express Books to those points of 5 H. 7. per Curiam and Scarles his Case in Moore and Green and Wilcock's Case in Crook Eliz. Yet in 25 Eliz. when an Action of Debt for 100 l. was brought against an Executor in C. B. and pending that Debt was brought against him in B. R. for 100 l. which latter he confess'd and the Iudgment there had pleaded in Barr to the first Action And upon Question if the Plea were good Fenner and Walmesley held it good but Anderson Mead Wyndham and Periam argued to the contrary and that he ought to have pleaded the first Action pending to the second Action brought The Arguments of both sides you may see in Moore f. 173. Moore 25 El. f. 173. where it is left a Quere the Iudges doubting the Case but since the Law is taken That the Iudgment is a good barr to the first Action It will be still objected That if the Law be that Executors or Administrators may pay debts upon simple Contracts of the deceas'd to which they are not bound and thereby prevent the payment of a debt to which they are bound It is repugnant to Reason and consequently cannot be Law for that is in effect at the same time to be bound and not bound to pay For he who may not pay being bound is not bound at all For clearing this we must know Though Executors or Administrators are not compell'd by the Common Law to answer Actions of Debt for simple Contracts yet the Law of the Land obligeth payment of them For 1. Vpon committing Administration Oath is taken to administer the Estate of the dead duely which cannot be without paying his debts 2. Oath is taken to make true accompt of the Administration to the Ordinary and of what remains after all Debts Funeral Charges and just Expences of every sort deducted 3. This appears also by the Statute of 31 E. 3. c. 11. That Administrators are to administer and dispend for the Soul of the Dead and to answer to other to whom the dead persons were holden and bound which they cannot better do than by paying their debts And as this was the ancient Law and practise before in the Spiritual Court so by the new Act in 22 and 23 of the King for the better settling of Intestates Estates It is enacted accordingly that upon the Administrators accompt deductions be made of all sorts of debts This appears to be the ancient Law by the Great Charter c. 18. and long before by Glanvill in Henry the Second's time and Bracton in Henry the Third's time 4. And by Fitz-herbert in the Writ de rationabili parte bonorum the debts are to be deducted before division to the wife and children And upon the Executors accompt all the Testators debts are to be allow'd before payment of Legacies which were unjust if the payment of them were not due as appears by Doctor and Student Executors be bound to pay Debts before Legacies by the Law of Reason and by the Law of God for Reason wills that they should do first that is best for the Testator that is to pay debts which he was bound to pay before Legacies which he was not bound to give 2. It is better for the Testator his Debts should be paid Doct. Stud. l. 2. c. 11. for not payment of which his Soul shall suffer pain but none for not performing his Legacy The Ordinary upon the accompt L. 2. c. 10. f. 158 in all the Cases before rehears'd will regard much what is best for the Testator And I conceive the Ordinary may inforce the payment of Debts upon Contracts as well as Legacies or Marriage mony and no Prohibition lyes An Executor or Administrator may retain for his own satisfaction a Debt by single Contract due from the Testator or Intestate which he could not do unless the payment were lawful If at the Common Law the Executors payments of Debts upon simple Contracts were not just Why have the Iudges in all Ages given Judgment for the Plaintiffs unless the Defendant either Demurrs in the Commencement of the Plea or avoids the Debt by special matter pleaded and put in issue but he shall never in such case either Arrest the Iudgement or bring Error after Iudgment for that Cause And so it is agreed for Law in Read and Norwoods Case in Plowden where the Iudges had view of numerous Iudgments in that kind as there appears
the Kings license must be without any limitation to him that hath it to exercise his Trade as before it was prohibited otherwise it is no license 346 17. Where the King may dispense generally he is not bound to it but may limit his Dispensation 346 18. Where the King can dispense with particular persons he is not confined to number or place but may license as many and in such places as he thinks fit 347 19. A Corporation is capable of a Dispensation 347 348 20. A Dispensation to a person to keep an Office which person is not capable of such Office is void 355 21. Where a license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Distress 1. A privity is necessary by the common Law between the Distrainer and Distrained 39 2. Attornment and power to Distrain follows the possession and not the Use 43 3. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost 39 4. Where Rent is arrear and afterwards the Rent is granted over in Fee and an Attornment thereunto here the Grantor hath lost his arrears and cannot Distrain 40 5. If a Fine is levied of the Reversion of Land or of Rent to Uses the Cestuy que use may Distrain without attornment 50 51 Dominion 1. Dominions belonging to the Crown of England cannot be separated from it but by Act of Parliament made in England 300 2. What are Dominions belonging to the Realm of England though not in the Territorial Dominions of England ibid. 3. By what Title the Crown of England held Gascoign Guyen and Calais 401 Dower 1. The wife of a Conizee of a Fine shall not be thereof endowed because it is but a fictitious Seisin 41 2. The wife is dowable of a Rent in Fee 40 Droit d'Advowson 1. Where the Writ lies and for whom 11 16 2. In a Droit d'Advowson the King may alledge Seisin without alledging any time 56 Ecclesiastical Court See Archbishop Prohibition THe Secular Judges are most conuzant of Acts of Parliament 213 2. The Temporal Judges have conuzance of what marriages are within the Levitical Degrees and what not and what are incestuous 207 3. The Clergy of this Kingdom shall not enact or execute any Canon Constitution or Ordinance Provincial unless they have the Kings license 329 Elegit 1. It lies upon a Recognizance taken in any of the Courts at Westminster or before any Judge out of Term 102 Error See Presidents Iudgment 1. An erroneous Judgment is a good Judgment to all intents whatsoever until reversed 94 2. If an inferiour or superiour Court gives an erroneous Judgment it is reversible by Writ of Error 139 3. Where the matter concerns the Jurisdiction of the Court a Writ of Error lies no where but in Parliament 396 4. A Writ of Error lies to reverse a Judgment in any Dominion belonging to England 290 402 5. A Writ of Error lay to reverse a Judgment in Calais 402 6. It lies to reverse a Judgment in Ireland 290 291 298 402 Escheat 1. Where the Heir at Law dies without heir the Land escheats and the Lord's Title will precede any future Devise 270 Esplees 1. The profits of a Mine is no Esplees for the Land but only the Esplees for the Mine it self 255 2. So likewise for a Wood the profits of it is no Esplees but only for the Land only upon which the Wood grows ibid. Estates See Grant 1. The Law doth not in Conveyances of Estates admit Estates to pass by Implication as being a way of passing Estates not agreeable to the plainness required by Law in the transferring of Estates 261 262 c. 2. But in Devises they are admitted with due restrictions 261 262 263 c. 3. What Executory Devises and contingent Remainders are good and what not 272 273 4. When a new Estate is granted the privity to the old Estate is destroyed 43 5. The Estate may be changed and yet the possession not changed but remain as formerly 42 6. An Estate in a Rent-charge may may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 7. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 8. His wife shall not be endowed neither shall his heir inherit 41 Estoppel or Conclusion 1. A Demise by Indenture of a Term habendum from the expiration of another term therein recited when really there is no such term in esse is no Estoppel to the Lessor or Lessee but the Lessee may presently enter and the Lessor grant the Reversion 82 Evidence 1. No evidence can be given to a Jury of what is Law 143 2. A witness may be admitted to prove the Contents of a Deed or Will 77 3. The Jury may go upon evidence from their own personal knowledge 147 Execution See Elegit 1. Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment 398 2. What Execution shall be sued out upon a Recognizance acknowledged in any of the Courts at Westminster or before a Judge 103 3. What Execution shall be sued out upon a Statute 102 4. Upon a Recovery in England an Execution doth not lye into Wales 397 398 5. Perhaps by special Writs to the chief Officer of the King Execution may be made of Judgments given at Westminster in any of his Dominions 420 Executor See Title Statute 10 20. 1. How they are to administer the Testators estate 96 2. An Executor may refuse but cannot assign over his Executorship 182 3. It is no Devastavit in an Executor to satisfie a Judgment obtained upon a simple Covenant before a debt due by Obligation 94 95 97 4. Where an Action of Debt upon Bond or Judgment is brought against him he may confess the Action if there be no fraud in the Case although he hath notice of a former Suit 95 100 5. The Executor may plead an erroneous Judgment in Barr 94 97 6. A Recognizance in Chancery must be paid before Debts upon simple Contracts and Debts by Bond 103 7. It is a Devastavit in an Executor to pay voluntarily a Debt by simple Contract before a Debt by Bond whereof he had notice and not otherwise 94 95 8. It is a Devastavit to satisfie a later Judgment if there are not Assets left to satisfie a former Judgment 95 9. An Action will not lye against Executors upon a Tally because it is no good Specialty 100 10. The pleading of Plene administravit praeter plene administravit ultra and in what Cases it may be pleaded and how 104 Exposition of Words Quam diu 32 Dum ibid. Dummodo ibid. Usually letten 33 34 At any time 34 Or more 35 More or less ibid. Gurges
in Indentura praedict mentionat shall be as is contended an absolute and positive finding of a former Demise made to whose expiration the Indenture 1 Mariae referrs it must be either the demise 29 H. 8. or that of 1 E. 6. for no other are mentioned in the Indenture 1 Mar. and it can be but a finding of one of them for the words à fine prioris dimissionis in Indentur praedict mentionat cannot possibly extend to both Be it then understood the Demise 1 E. 6. for in that the Mannor is clearly named the Consequence must be That the Deed of 1 Mar. which is an intire lease as well of the Mannor as of the Vicaridge Parsonage and of other things under several Rents for Ninety years commencing as to the Mannor from the Expiration of the suppos'd Demise 1 E. 6. shall be a good lease for Ninety years thence forwards because that recited Demise is also suppos'd to be positively found by the Jury by those words of their Verdict But as to the Vicaridge Parsonage and other things and the Rents thereupon reserv'd which are demis'd by the Indenture of 1 Mar. for Ninety years to commence from the Expiration of the other recited Demise suppos'd in 29 H. 8. the lease of 1 Mar. must commence immediately from the Date because the Jury have not found that recited Demise positively but only as recited and therefore not found it to be a real Demise and consequently the lease of 1 Mariae as to those particulars referring the term to commence from the Expiration of a term granted 29 H. 8. not in esse because not found must begin from 1. Mar. which doubtless the Jury never intended But now for Authority I will resume the Case formerly cited of 3 E. 6. in the Lord Brook If A. makes a Lease to B. Habendum for Forty years from the expiration of a former Lease made of the Premises to J. N. and this be found occasionally by special Verdict as our Case is but the Jury in no other manner find any Lease to be made to J. N. then as mentioned in the Lease to B. By the Resolution of that Book the Lease to B for Forty years shall begin presently And who will say in this Case That because the Jury find a Lease made to B. for Forty years Habendum from the Expiration of a former Lease made to J. N. that therefore they find a Lease made formerly to J. N. when in truth J. N. had no such Lease for they only find what the Habendum in the Lease to B. is which makes a false mention of a former Lease to J. N. but had no Evidence to find a Lease which was not Exactly parallel to this is our present Case the Jury find the Bishop of Oxford by a Lease dated the Fourteenth of October 1 Mariae demised to Groker the Mannor of Hooknorton Habendum to him and his Assigns for Ninety years from the Expiration of a former Demise mentioned in the said Indenture of Lease 1 Mariae But do not affirm or find explicitly or implicitly any former demise made when they only find summarily the Habendum of the Lease 1 Mariae which mentions such a former Demise Cr. 10 Car. 1. f. 397. Another Case I shall make use of is the Case of Miller and Jones versus Manwaring in an Ejectment brought in Chester upon the Demise of Sir Randolph Crew The Jury in a Special Verdict found That John Earl of Oxford and Elizabeth his Wife were seis'd in Fee in Right of Elizabeth of the Mannor of Blacon whereof the Land in question was parcel and had Issue John the said John Earl of Oxford by Indenture dated the Tenth of February 27 H. 8. demis'd the Mannor to Anne Seaton for Four and Thirty years Elizabeth died 29 H. 8. And the said Earl of Oxford died March 31. H. 8. Afterwards John the Son then Earl of Oxford the Thirtieth of July 35 H. 8. by Indenture reciting the Demise to Anne Seaton to be dated the Tenth of February 28 H. 8. demis'd the said Mannor to Robert Rochester Habendum after the End Surrender or Forfeiture of the said Lease to Anne Seaton for Thirty years It was adjudged first in Chester and after upon Error brought in the Kings Bench It was resolv'd by all the Iudges who affirmed unanimously the first Iudgment That the Lease to Rochester began presently at the time of the Sealing for several Reasons 1. Which is directly to our purpose because there was no such Lease made to Anne Seaton having such beginning and ending as was recited in Rochester's lease 2. Because the lease made by John first Earl of Oxford was determined by his death Three years before Rochester's lease and consequently no lease in esse when the lease was made to Rochester which Reasons are in effect the same viz. That a lease made to commence from the end of any lease suppos'd to be in esse which indeed is not the lease shall commence presently From this Case these Conclusions are with clearness deducible 1. That if a lease be found specially by a Jury in which one or more other leases are recited the finding of such lease is not a finding of any the recited leases Therefore the finding of the lease made to Rochester was not a finding of the lease therein recited to be made to Anne Seaton in any respect 2. The second thing clearly deducible out of this Case is That although the Jury by their Special Verdict did find that John the Son Earl of Oxford did by his Indenture demise to Rochester for Thirty years the Mannor of Blacon Habendum from the End Surrender or Forfeiture of a former lease thereof made to Anne Seaton dated the Tenth of February 28 H. 8. yet this was not a finding of any such lease made to Anne Seaton but only a finding of the Habendum as it was in the lease made to Rochester which mentioned such a lease to be made to Anne Seaton So in our present Case the Jury finding that the Bishop of Oxford 1 Mariae did demise the Mannor of Hooknorton to John Croker Habendum for Ninety years from the Expiration of a former Demise mentioned in the Indenture of 1 Mar. is not a finding of any such former Demise to be made but a finding that in the Indenture 1 Mariae it is suggested there was such a former Demise and no more And if any man shall object That in Rochester's Case the Reason why no such lease is found to be made to Anne Seaton in 28 H. 8. to be because it is found that the lease made to Anne Seaton was in 27 H. 8. that is not to the purpose because the Jury might find and truly that a lease was made to her Dated the Tenth of February 27 H. 8. but that was no hindrance but that another lease was made to her in 28 H. 8. as is mentioned in Rochester's lease which had been a Surrender in Law
of that made in 27 H. 8. Therefore it is manifest That the sole Reason why no such lease was admitted to be in 28 H. 8. is no other than because the Jury find no such to have been made but find a suggestion of it only in Rochester's lease And it is the same exactly in our present Case The third thing deducible from the Case is That a Demise by Indenture for a term Habendum from the Expiration of another recited or mentioned term therein 35 H. 6. 34 Br. Tit. Faits p. 4. 12 H. 4. 23 Br. Faits 21. which is not or not found to be which is the same thing is no Estoppel or Conclusion to the Lessee or Lessor but that the Lessee may enter immediately and the Lessor demise or grant in Reversion after such immediate lease There is another Case resolv'd at the same time between the same Persons and concerning the same Land and published in the same Report and specially found by the same Jury Edward Earl of Oxford Son of John the Son of John Earl of Oxford by Indenture between him and Geoffry Morley Dated the Fourteenth of July 15 Elizabethae reciting That John his Father by Indenture the Thirtieth of July 35 H. 8. had demised to Robert Rochester the said Farm or Mannor of Blacon Habendum for Thirty years from the end or determination of the lease made to Anne Seaton the Tenth of February 27 H. 8. which is a false recital for the lease to Rochester was to commence from the end or determination of a lease made to Anne Seaton that is recited to be made the Tenth of February 28 H. 8. and that afterwards the said John Earl of Oxford had granted by Indenture Dated the Six and twentieth of March 35 H. 8. reciting the lease to Anne Seaton the Tenth of February 27 H. 8. to Hamlett Freer the Reversion of the said Mannor of Blacon Habendum the said Mannor and Premisses from such time as the same shall revert or come to the possession of the said Earl or his Heirs by Surrender Forfeiture or otherwise for Sixty years for so is the Case put in one part of the Report but in another part of it it seems to be That the Demise to Freer was when it should revert after the Expiration Surrender or Forfeiture omitting the words or otherwise of the Lease made to Anne Seaton which will nothing vary the Case The said Edward Earl of Oxford 〈…〉 demised the said Mannor or Farm of Blacon to the said Geoffry Morley Habendum from the end of the said Leases for Fifty years The Question was Whether any of these leases made either to Hamlett Freer or Morley be good or were in esse at the time of the lease made by Sir Randolph Crew to the Plaintiff Sir Randolph Crew claiming the Inheritance from the Earl of Oxford and Sir William Norris the Leases from Freer and Morley and under him the Defendant And Iudgment was given in Chester for the Plaintiff And upon a Writ of Error of this Iudgment brought in the Kings Bench wherein the Error assign'd was The giving of Iudgment for the Plaintiff After several Arguments at Barr and at the Bench Seriatim by the Iustices it was unanimously agreed The Iudgment in Chester for the Plaintiff should be affirmed And that neither the Lease to Freer nor that to Morley was good to avoid the Plaintiffs Title As for the lease to Freer it being a grant of a Reversion nominally and by Agreement of Parties there being no Reversion because no lease at the time of the Grant was in esse either of Seatons or Rochesters upon a point of Rasure in Rochester's Demise found in the Case and for that Land in possession could not pass by the name of a Reversion though by the name of Land a Reversion may pass for he who will grant Land in possession cannot be thought not to grant the same if only in Reversion L. Chandoes Case 6. Rep. according to the doctrine of Throgmorton's Case in the Commentaries And for that Morley's lease was to commence after the lease granted to Rochester which was to commence after that granted to Seaton the Tenth of February 27 H. 8. whereas no such lease was granted to Rochester but a lease to commence after one granted to Seaton in 28 H. 8. It was resolv'd None of those leases were in esse and that Morley's lease commenced therefore presently The words of the Resolution are these as to Morley's Lease It was Resolv'd that Morley's Lease was not in esse for that misrecites the former Leases and so hath the same Rule as the former where it recites Leases and there be none such Therefore it shall begin from the Date which being in the Fifteenth of the Queen for Fifty years ended 1623. which was before the Lease made to the Plaintiff for these Reasons Judgment was affirmed The same Conclusions are deducible from this lease to Morley as from the former to Rochester and therefore I will not repeat them But here are two Judgments in the very point of our Case and affirmed in a Writ of Error unanimously in the Kings Bench. And where it is thought material that the Jury have found a half years Rent to have been behind at Michaelmas 1643. and thence inferr'd the Jury have found the leases by which that Rent was ascertain'd namely the leases of 29 H. 8. and 1 E. 6. Surely if a lease be for a term of years to commence from the end of a former term and for such Rent as is reserv'd upon such former Demise that never was as no term can commence from the end of another which never was so no Rent can be behind which cannot appear but by a Demise which was never made that is which is never found to be made Add further That if the Iury had found the Leases of 29 H. 8. and 1 E. 6. to have been made as is mentioned in the lease of 1 Mar. that had not been a sufficient finding of them For a Deed is not found at all nor a last Will when only the Jury find but part of the Deed or Will for the Court cannot Iudge but upon the whole and not upon part It it be found in Assise the Defendant was Tenant and disseis'd the Plaintiff nisi verba contenta in ultima voluntate W. M. give a lawful Estate from W. M. to R. M. and find the words contain'd in the Will but not the Will at large the Court cannot judge upon this Verdict 38. 39 El. B.R. West and Mounsons C. Rolls 696. Tit. Tryal whose Office it is to judge upon the whole Will which is not found 38 39 El. B. R. West and Mounsons Case Rolls 696. Title Tryal So for the same reason finding but part of a recited Deed and not the whole is as if no part were found and it appears by the Deed of 1 Mariae that both Deeds of 29 H. 8. and 1 E. 6. are
And if such Debts were not justly to be so demanded and paid it had been against the Iudges Oath to pass such Iudgments for the Defendant is not bound to Demurr but leaves the Iustice of the Plaintiffs demand to the Court. In Decimo H. 6. Cotsmore 10 H. 6. f. 24. b. 25. a. who gave the Rule in the Case in question hath these words The Law will not charge Executors with a duty due by a simple Contract made by the Testator Then if such Action be brought against Executors upon a simple Contract made by the Testator and they will not take advantage at the beginning of the Pleas in abatement of the Writ but plead other matter which is found against them they never shall have advantage to shew that before Judgment that is in Arrest of Judgment and that I have known adjudg'd in this place once before this time Here is not only his own Opinion but a Iudgment by him cited in that Court formerly in the point I shall add another Case to this purpose A man brought a Writ of Debt against another 15 E. 4. f. 29. 2. and counted that he sold certain Goods to his Testator for the Sum in demand Littleton caus'd the Attorney of the Plaintiff as printed but should be Defendant to be demanded and so he was and Littleton demanded of him Si'l voyl avoyder son Suite not his own but his who counted against him que dit que voyl and after Littleton said to the Attorney of the Plaintiff The Court awards that you take nothing by the Writ for know that a man shall never have an Action against Executors where the Testator might have wag'd his Law in his life time quod nota It was not proper to ask the Plaintiffs Attorney Whether he would avoid his Clyents Suit and an unlikely answer of his to say Yes but a rational demand to the Defendants Attorney Whether he would avoid his Suit who counted against him and probably he should answer Yes and after Littleton said to the Attorney of the Plaintiff the Court awards you take nothing by your Writ If he had been the person to whom the question was first asked and who immediately before had answer'd Yes the Book had not been that after Littleton said to the Attorney of the Plaintiff but that Littleton said to him who was the same he discours'd with The Print thus rectified this Case agrees with the Law deliver'd by Cotsmore An Executor is sued and declared against in Court for so was the Course then upon a simple Contract of his Testators the Iudge asks his Attorney Whether he had a mind to avoid the Suit who answer'd Yes If the Iudge had thought fit he might have avoided the Suit without making any question but knowing it was not consonant to Law to avoid a Suit upon a simple Contract unless the Executor himself desired it He therefore asked him the Question and finding he did desire it the Iudge presently told the Plaintiffs Attorney He could take nothing by the Writ Else you see the Consequence of this Iudgment That the Iudges ex officio should prevent any Iudgment for the Plaintiff in Debt brought upon a simple Contract against an Executor whether the Executor would or not against former and subsequent usage Brook in Abridging this Case and not reflecting upon it rightly abridges it that Littleton demanded the Plaintiffs Attorney If he would avow his Suit whereas the word is clearly avoid not avow and to what purpose should he ask that Question for sure it was avow'd as much as could be when counted upon at the instant in Court Then Brook makes a Note Br. Executor pl. 80. Nota cest Judgment ex officio And this Note of Brooks mis-led the Lord Anderson once to the same mistake if the Report be right but the like hath not been before or since Rob. Hughson's Case Gouldsboroughs Rep. 30 Eliz. f. 106. 107. An Action was brought against an Administrator upon a Contract of the Intestates who pleaded fully administred and found against him Anderson said that ex officio the Court was to stay Iudgment and did so because the Administrator was not chargeable upon a simple Contract But since that Case of Hughson one Germayne brought an action of Debt against Rolls as Executor of Norwood for Fees as an Attorney in the Common Bench and for soliciting in the Queens Bench Germayne versus Rolls 37 38 El. Cro. 425. pl. 24. and for mony expended about a Fine for Alienation Rolls pleaded Ne unque Executor which was found against him and Judgment given Vpon which Rolls brought a Writ of Error and the Error assign'd was That the Action lay not against an Executor because the Testator could have waged his Law But it was resolv'd That for Attorney's Fees the Testator could not wage his Law but for the rest he might and that the Executor might have demurr'd at first but pleading a Plea found against him it was said he was Concluded some difference of Opinion was But agreed That the Executor confessing the Action or pleading nil debet in such Case and that found against him he hath no remedy And Popham remembred Hughson's Case in the Common Pleas and would see the Roll for he doubted that both in that Case and this of Germayne the Executor had not confessed the Debt in effect But after it was moved again and all the Judges Hill 38 Eliz. Cro. 459. pl. 4. but Gawdy were of Opinion that the Judgment was well given as to that Cause but it was revers'd for a Cause not formerly mov'd which was That an Action of Debt would not have layn against the Testator himself for part of the mony in demand and recovered that is for the mony for soliciting which was not a certain Debt but to be recovered by Action on the Case Some Cases in the Old Books may seem to colour this Opinion That the Judges ex officio in an Action of Debt brought against an Executor or Administrator for a simple Contract of the Testators or Intestate ought to abate the Writ 25 E. 3. f. 40. The first is 25 E. 3. f. 40. where an Action was brought against an Executor upon a Tally struck by the Testator The Iudges said Nil Capiat per breve if he have no better specialty 12 H. 4. f. 23. The like Case is 12 H. 4. f. 23. where a like Action was brought against the Executor or Administrator upon a Tally of the Testators and there it appears the Defendants Council would have demurr'd and the Cause is mentioned That the writing of the Tally might be washed out by water and a new put in the place and the Notches chang'd and the Iudgment was Nil capiat per breve This being the same Case with the former the reason of the Iudgment was the same of grounding an Action upon a Specialty not good in Law Besides it appears in the latter
be admitted sufficient causes to remand persons to prison To those Objections made by the Prisoners Council against the Retorn as too general 1. It hath been said That Institutum est quod non inquiratur de discretione Judicis 2. That the Court of Sessions in London is not to be look'd on as an inferiour Court having all the Judges Commissioners that the Court having heard the Evidence it must be credited that the Evidence given to the Iury of the Fact was clear and not to be doubted As for any such Institution pretended I know no such nor believe any such as it was applyed to the present cause but taking it in another and in the true sense I admit it for truth that is when the King hath constituted any man a Iudge under him his ability parts fitness for his place are not to be reflected on censured defamed or vilified by any other person being allowed and stampt with the Kings Approbation to whom only it belongs to judge of the fitness of his Ministers And such scandalous Assertions or Inquiries upon the Judges of both Benches is forbidden by the Statute of Scandalum Magnatum 2 R. 2. c. 5. Nor must we upon supposition only 2 R. 2. c. 5. either admit Judges deficient in their Office for so they should never do any thing right nor on the other side must we admit them unerring in their places for so they should never do any thing wrong And in that sense the saying concerns not the present Case But if any man thinks that a person concern'd in Interest by the Iudgment Action or Authority exercis'd upon his person or fortunes by a Judge must submit in all or any of these to the implyed discretion and unerringness of his Judge without seeking such redress as the Law allows him it is a perswasion against common Reason the received Law and usage both of this Kingdome and almost all others If a Court Inferiour or Superiour hath given a false or erroneous Iudgment is any thing more frequent than to reverse such Iudgments by Writs of False Judgment of Error or Appeals according to the course of the Kingdome If they have given corrupt and dishonest Iudgments they have in all Ages been complained of to the King in the Starr-Chamber or to the Parliament Andrew Horne in his Mirror of Justices Hornes Mirror f. 296. mentions many Judges punisht by King Alfred before the Conquest for corrupt Iudgments and their particular Names and Offences which could not be had but from the Records of those times Our Stories mention many punisht in the time of Edward the First our Parliament Rolls of Edward the Third's time of Richard the Second's Time for the pernicious Resolutions given at Nottingham Castle afford Examples of this kind In latter times the Parliament Journals of 18 and 21 Jac. the Iudgment of the Ship-mony in the time of Charles the First question'd and the particular Judges impeacht These Instances are obvious and therefore I but mention them In cases of retorns too general upon Writs of Habeas Corpus of many I could urge I will instance in two only One Astwick brought by Habeas Corpus to the Kings Bench 9 El. Moore f. 837. was retorn'd to be committed per Mandatum Nicholai Bacon Militis domini Custodis magni Sigilli Angliae virtute cujusdam Contemptus in Curia Cancellar facti and was presently bail'd 13 Jac. Moore f. 839. One Apsley Prisoner in the Fleet upon a Habeas Corpus was retorn'd to be committed per considerationem Curiae Cancellar pro contemptu eidem Curiae illato and upon this retorn set at liberty In both these Cases no inquiry was made or consideration had whether the Contempts were to the Law Court or equitable Court of Chancery either was alike to the Judges lest any man should think a difference might arise thence The reason of discharging the Prisoners upon those retorns was the generality of them being for Contempts to the Court but no particular of the Contempt exprest whereby the Kings Bench could judge whether it were a cause for commitment or not And was it not as supposeable and as much to be credited That the Lord Keeper and Court of Chancery did well understand what was a Contempt deserving commitment as it is now to be credited that the Court of Sessions did understand perfectly what was full and manifest Evidence against the persons indicted at the Sessions and therefore it needed not to be reveal'd to us upon the retorn Hence it is apparent That the Commitment and Retorn pursuing it being in it self too general and uncertain we ought not implicitly to think the Commitment was re vera for cause particular and sufficient enough because it was the Act of the Court of Sessions And as to the other part That the Court of Sessions in London is not to be resembled to other inferiour Courts of Oyer and Terminer because all the Judges are commission'd here which is true but few are there at the same time and as I have heard when this Tryal was none of them were present However persons of great quality are in the Commissions of Oyer and Terminer through the Shires of the Kingdom and always some of the Judges nor doth one Commission of Oyer and Terminer differ in its Essence Nature and Power from another if they be general Commissions but all differ in the Accidents of the Commissioners which makes no alteration in their actings in the eye of Law Another fault in the retorn is That the Jurors are not said to have acquitted the persons indicted against full and manifest Evidence corruptly and knowing the said Evidence to be full and manifest against the persons indicted for how manifest soever the Evidence was if it were not manifest to them and that they believ'd it such it was not a finable fault nor deserving imprisonment upon which difference the Law of punishing Jurors for false Verdicts principally depends A passage in Bracton is remarkable to this purpose concerning Attainting Inquests Committit Jurator perjurium propter falsum Sacramentum Bracton l. 4. c. 4. f. 288. b. ut si ex certa scientia aliter Juraverit quam res in veritate se habuerit si autem Sacramentum fatuum fuerit licet falsum tamen non committit perjurium licet re vera res aliter se habeat quam juraverat quia jurat secundum conscientiam eo quod non vadit contra mentem Sunt quidam qui verum dicunt mentiendo sed se pejerant quia contra mentem vadunt The same words and upon the same occasion Fleta l. 5. c. 22 f. 336. n. 9. are in effect in Fleta Committit enim Jurator perjurium quandoque propter falsum Sacramentum ut si ex certa scientia aliter juraverit quam res in veritate se habuerit secus enim propter factum quamvis falsum and lest any should think that these passages are to be
not first discover that the Verdicts of Juries were many times not according to the Judges opinion and liking But the Reasons are I conceive most clear That the Judge could not nor can Fine and Imprison the Jury in such Cases Without a Fact agreed it is as impossible for a Judge or any other to know the Law relating to that Fact or direct concerning it as to know an Accident that hath no Subject Hence it follows That the Judge can never direct what the Law is in any matter controverted without first knowing the Fact and then it follows That without his previous knowledge of the Fact the Jury cannot go against his Direction in Law for he could not direct But the Judge quà Judge cannot know the Fact possibly but from the Evidence which the Jury have but as will appear he can never know what Evidence the Jury have and consequently he cannot know the matter of Fact nor punish the Jury for going against their Evidence when he cannot know what their Evidence is It is true if the Jury were to have no other Evidence for the Fact but what is depos'd in Court the Judge might know their Evidence and the Fact from it equally as they and so direct what the Law were in the Case though even then the Judge and Jury might honestly differ in the result from the Evidence as well as two Judges may which often happens But the Evidence which the Jury have of the Fact is much other than that For 1. Being return'd of the Vicinage whence the cause of Action ariseth the Law supposeth them thence to have sufficient knowledge to try the matter in Issue and so they must though no Evidence were given on either side in Court but to this Evidence the Judge is a stranger 2. They may have Evidence from their own personal knowledge by which they may be assur'd and sometimes are that what is depos'd in Court is absolutely false but to this the Judge is a stranger and he knows no more of the Fact than he hath learn'd in Court and perhaps by false Depositions and consequently knows nothing 3 The Jury may know the Witnesses to be stigmatiz'd and infamous which may be unknown to the parties and consequently to the Court. 4. In many Cases the Jury are to have View necessarily in many by consent for their better information to this Evidence likewise the Judge is a stranger 5. If they do follow his direction they may be attainted and the Iudgment revers'd for doing that which if they had not done they should have been fined and imprisoned by the Judge which is unreasonable 6. If they do not follow his direction and be therefore fined yet they may be attainted and so doubly punisht by distinct Iudicatures for the same offence which the Common Law admits not Chevin and Paramours Case 3 El. Dyer 201. a. n. 63. A Fine revers'd in Banco Regis for Infancy per inspectionem per testimonium del 4. fide dignorum After upon Examination of divers Witnesses in Chancery the suppos'd Infant was prov'd to be of Age tempore finis levati which Testimonies were exemplified and given in Evidence after in Communi Banco in a Writ of Entry in the quibus there brought And though it was the Opinion of the Court That those Testimonies were of no force against the Iudgment in the Kings Bench The Progress in this Writ of Right till Judgment for Paramour the Defendant is at large 13 El. Dyer f. 301. n. 40. yet the Jury found with the Testimony in Chancery against direction of the Court upon a point in Law and their Verdict after affirmed in an Attaint brought and after a Writ of Right was brought and battle joyn'd 7. To what end is the Jury to be retorn'd out of the Vicinage whence the cause of Action ariseth To what end must Hundredors be of the Jury whom the Law supposeth to have nearer knowledge of the Fact than those of the Vicinage in general To what end are they challeng'd so scrupulously to the Array and Pole To what end must they have such a certain Free-hold and be probi legales homines and not of affinity with the parties concern'd To what end must they have in many Cases the view for their exacter information chiefly To what end must they undergo the heavy punishment of the villanous Iudgment if after all this they implicitly must give a Verdict by the dictates and authority of another man under pain of Fines and Imprisonment when sworn to do it according to the best of their own knowledge A man cannot see by anothers Eye nor hear by anothers Ear no more can a man conclude or inferr the thing to be resolv'd by anothers Vnderstanding or Reasoning and though the Verdict be right the Jury give yet they being not assur'd it is so from their own Vnderstanding are forsworn at least in foro conscientiae 9. It is absurd a Jury should be fined by the Judge for going against their Evidence when he who fineth knows not what it is as where a Jury find without Evidence in Court of either side so if the Iury find 14 H. 7. f. 29. per Vavasor in Camer Scace without contradiction Hob. f. 227. upon their own knowledge as the course is if the Defendant plead Solvit ad diem to a Bond prov'd and offers no proof The Jury is directed to find for the Plaintiff unless they know payment was made of their own knowledge according to the Plea And it is as absurd to fine a Jury for finding against their Evidence when the Judge knows but part of it for the better and greater part of the Evidence may be wholly unknown to him and this may happen in most Cases and often doth as in Graves and Shorts Case Error of a Iudgment in the Common Bench Graves vers Short 40 El. Cro. f. 616. the Error assign'd was The Issue being whether a Feoffment were made and the Jurors being gone together to conferr of their Verdict one of them shew'd to the rest an Escrow pro petentibus not given in Evidence by the parties per quod they found for the Demandant upon Demurrer adjudg'd no Error for it appears not to be given him by any of the parties or any for them it must be intended he had it as a piece of Evidence about him before and shew'd it to inform himself and his Fellows and as he might declare it as a witness that he knew it to be true They resolv'd If that might have avoided the Verdict which they agreed it could not yet it ought to have been done by Examination and not by Error That Decantatum in our Books Ad quaestionem facti non respondent Judices ad quaestionem legis non respondent Juratores literally taken is true For if it be demanded What is the Fact the Judge cannot answer it if it be asked What is the Law in the Case the Jury
the matter proceeded upon in such Courts might as well be prosecuted in the Common Bench But if a priviledg'd person in Banco were sued in the Ecclesiastical Courts or before the High Commission or Constable and Marshal for things whereof the Common Pleas had no Conuzance they could not Supersede that proceeding by Priviledge And this was the ancient reason and course of Priviledge 1. Another way of Priviledge by reason of Suit depending in A Superiour Court is when a person impleading or impleaded as in the Common Bench is after arrested in a Civil Action or Plaint in London or elsewhere and by Habeas Corpus is brought to the Common Pleas and the Arrest and Cause retorn'd if it appear to the Court That the Arrest in London was after the party ought to have had the Priviledge of the Common Pleas he shall have his Priviledg allow'd and be discharg'd of his Arrest and the party left to prosecute his cause of Action in London in the Common Pleas if he will 2. If the cause of the Imprisonment retorn'd be a lawful cause but which cannot be prosecuted in the Common Pleas as Felony Treason or some cause wherein the High Commission Admiralty or other Court had power to imprison lawfully then the party imprison'd which did implead or was impleaded in the Common Bench before such imprisonment shall not be allow'd Priviledge but ought to be remanded 3. The third way is when a man is brought by Habeas Corpus to the Court and upon retorn of it it appears to the Court That he was against Law imprison'd and detain'd though there be no cause of Priviledge for him in this Court he shall never be by the Act of the Court remanded to his unlawful imprisonment for then the Court should do an act of Injustice in imprisoning him de novo against Law whereas the great Charter is Quod nullus liber homo imprisonetur nisi per legem terrae This is the present case and this was the case upon all the Presidents produc'd and many more that might be produc'd where upon Habeas Corpus many have been discharg'd and bail'd though there was no cause of Priviledge in the Case This appears plainly by many old Books if the Reason of them be rightly taken For insufficient causes are as no causes retorn'd and to send a man back to Prison for no cause retorn'd seems unworthy of a Court. 9 H. 6. 54. 58. Br. n. 5. 14 H. 7. f. 6. n. 19. 9 E. 4. 47. n. 24. 12 H. 4. f. 21. n. 11. Br. If a man be impleaded by Writ in the Common Pleas and is after arrested in London upon a Plaint there upon a Habeas Corpus he shall have Priviledge in the Common Pleas if the Writ upon which he is impleaded bear date before the Arrest in London and be retorn'd although the Plaintiff in the Common Pleas be Nonsuit essoin'd or will not appear and consequently the Case of Priviledge at an end before the Corpus cum causa retorn'd but if the first Writ be not retorn'd there is no Record in Court that there is such a Defendant The like where a man brought Debt in Banco and after for the same Debt arrested the Defendant in London and became Nonsuit in Banco yet the Defendant upon a Habeas Corpus had his Priviledge because he had cause of Priviledge at the time of the Arrest 14 H. 7. 6. Br. Priviledge n. 19. The like Case 9 E. 4. where a man appear'd in Banco by a Cepi Corpus and found Mainprise and had a day to appear in Court and before his day was arrested in London and brought a Corpus cum causa in Banco Regis at which day the Plaintiff became Nonsuit yet he was discharg'd from the Serjeant at London because his Arrest there was after his Arrest in Banco and consequently unlawful 9 E. 4. f. 47. Br. Priviledge 24. and a man cannot be imprison'd at the same time lawfully in two Courts Coke Mag. Chart. f. 53 55. The Court of Kings Bench cannot pretend to the only discharging of Prisoners upon Habeas Corpus unless in case of Priviledge for the Chancery may do it without question And the same Book is That the Common Pleas or Exchequer may do it if upon Retorn of the Habeas Corpus it appear the Imprisonment is against Law An Habeas Corpus may be had out of the Kings Bench or Chancery though there be no Priviledge Mic. C. 2. Coke f. 55. c. or in the Court of Common Pleas or Exchequer for any Officer or priviledg'd Person there upon which Writ the Gaoler must Retorn by whom he was committed and the cause of his Imprisonment and if it appeareth that his Imprisonment be just and lawful he shall be remanded to the former Gaoler but if it shall appear to the Court that he was imprisoned against the Law of the Land they ought by force of this Statute to deliver him if it be doubtful and under consideration he may be bayl'd The Kings Bench may bayl if they please in all cases but the Common Bench must remand if the cause of the Imprisonment retorn'd be just The Writ de homine replegiando is as well retornable in the Common Pleas as in the Kings Bench. All Prohibitions for incroaching Iurisdiction Issue as well out of the Common Pleas as Kings Bench. Quashing the Order of Commitment upon a Certiorari which the Kings Bench may do but not the Common Pleas is not material in this Case 1. The Prisoner is to be discharg'd or remanded barely upon the Retorn and nothing else whether in the Kings Bench or Common Pleas. 2. Should the Kings Bench have the Order of Commitment certified and quash'd before the Retorn of the Habeas Corpus or after what will it avail the Prisoners they cannot plead Nul tiel Record in the one case or the other 3. In all the Presidents shew'd in the Common Pleas or in any that can be shew'd in the King's Bench upon discharging the Prisoner by Habeas Corpus nothing can be shew'd of quashing the Orders or Decrees of that Court that made the wrong Commitment Glanvill's C. Moore f. 836. 4. It is manifest where the Kings Bench hath upon Habeas Corpus discharg'd a Prisoner committed by the Chancery the person hath been again re-committed for the same Cause by the Chancery and re-deliver'd by the Kings Bench but no quashing of the Chancery Order for Commitment ever heard of 5. In such Cases of re-commitment the party hath other and proper remedy besides a new Habeas Corpus of which I shall not speak now 6. It is known That if a man recover in Assise and after in a Re-disseisin if the first Iudgment be revers'd in the Assise the Iudgment in the Re-disseisin is also revers'd So if a man recover in Waste and Damages given for which Debt is brought especially if the first Iudgment be revers'd before Execution it destroys the Process
for the Damages in Debt though by several Originals But it may be said That in a Writ of Error in this kind the foundation is destroy'd and no such Record is left Drury's Case 8. Rep. But as to that in Drury's Case 8. Rep. an Outlawry issued and Process of Capias upon the Outlawry the Sheriff retorn'd Non est inventus and the same day the party came into Court and demanded Oyer of the Exigent which was the Warrant of the Outlawry and shew'd the Exigent to be altogether uncertain and insufficient and consequently the Outlawry depending upon it to be null And the Court gave Iudgment accordingly though the Record of the Outlawry were never revers'd by Error which differs not from this Case where the Order of Commitment is Iudicially declar'd illegal though not quasht or revers'd by Error and consequently whatever depends upon it as the Fine and Commitment doth and the Outlawry in the former Case was more the Kings Interest than the Fine in this The Chief Justice deliver'd the Opinion of the Court and accordingly the Prisoners were discharg'd Hill 23 24 Car. II. B. C. Rot. 615. Edmund Sheppard Junior Plaintiff In Trespass Suff. ss against George Gosnold William Booth William Haygard and Henry Heringold Defendants THE Plaintiff declares for the forcible taking and carrying away at Gyppin in the said County the Eight and twentieth of January 22 Car. 2. Five and twenty hundred and Three quarters of a hundred of Wax of the said Edmunds there found and keeping and detaining the same under Arrest until the Plaintiff had paid Forty nine shillings to them the said Defendants for the delivery thereof to his Damage of 40 l. The Defendants plead Not Culpable and put themselves upon the Country c. The Jury find a Special Verdict 1. That before the Caption Arrest and Detention of the said Goods and at the time of the same Edmund Sheppard the younger was and is Lord of the Mannor of Bawdsey in the said County and thereof seis'd in his Demesne as of Fee and that he and all those whose Estate he hath and had at the time of the Trespass suppos'd in the said Mannor with the Appurtenances time out of mind had and accustomed to have all Goods and Chattels wreck'd upon the high Sea cast on shore upon the said Mannor as appertaining to the said Mannor 2. They further say The said Goods were shipped in Forraign parts as Merchandise and not intended to be imported into England but to be carried into other Forraign parts 3. That the said Goods were wreck'd upon the high Sea and by the Sea-shoar as wreck'd Goods cast upon the Shoar of the said Mannor within the same Mannor and thereby the said Edmund seis'd as wreck belonging to him as Lord of the said Mannor They further find That at the Parliament begun at Westminster the Five and Twentieth of April the Twelfth of the King and continued to the Nine and Twentieth of December following there was granted to the King a Subsidy call'd Poundage Of all Goods and Merchandises of every Merchant natural born Subject Denizen and Alien to be exported out of the Kingdom of England or any the Dominions thereto belonging or imported into the same by way of Merchandise of the value of Twenty shillings according to the particular Rates and Values of such Goods and Merchandises as they are respectively rated and valued in the Book of Rates intitled The Rates of Merchandise after in the said Act mentioned and referr'd to to One shilling c. Then they say That by the Book of Rates Wax inward or imported every hundred weight containing One hundred and twelve pounds is rated to Forty shillings and hard Wax the pound Three shillings four pence They find at the time of the Seisure of the Goods That the Defendants were the King's Officers duly appointed to collect the Subsidy of Poundage by the said Act granted and that for the Duty of Poundage not paid at the said time they seis'd and arrested the said Goods until the Plaintiff had paid them the said Fine of Forty nine shillings But whether the Goods and Chattels aforesaid so as aforesaid wreck'd be chargeable with the said duty of Poundage or not they know not And if not They find the Defendants Culpable and Assess Damages to the Plaintiff to Nine and forty shillings ultra misas custagia And if the said Goods be chargeable with the said Duty they find the Defendants not Culpable It is clear Dyer 31 H. 8. 43. b. n. 22. That formerly in the times of Henry the Eighth Queen Mary and Queen Elizabeth it was suppos'd that some Customes were due by the Common Law wherein the King had an Inheritance for certain Merchandise to be transported out of the Realm and that such Customes were not originally due by any Act of Parliament so is the Book 31 H. 8. It was the Opinion likewise of all the Justices in the Chequer Chamber when Edward the Sixth had granted to a Merchant Alien That he might Transport or Import all sorts of Merchandise not exceeding in the value of the Customes and Subsidies thereof Fifty pounds paying only to the King his Heirs and Successors pro Custumis Subsidiis oneribus quibuscunque of such Marchandises so much and no more as any English Merchant was to pay That this Patent remained good for the old Customes Dyer 1 Mar. f. 92. a. n. 17. wherein the King had an Inheritance by his Prerogative but was void by the Kings death as to Goods customable for his life only by the Statute of Tunnage c. So upon a Question rais'd upon occasion of a new Imposition laid by Queen Mary upon Clothes Dyer 1 Eliz. f. 165. a. b. n. 57 the Judges being consuited about it 1 Eliz. The Book is Nota That English Merchants do not pay at Common Law any Custome for any Wares or Merchandises whatever but Three that is Woolls Woolfells and Leather that is to say pro quolibet sacco lanae continent 26 pierres chescun pierr 14 pound un demy marke and for Three hundred Woolfells half a Mark and for a Last of Leather Thirteen shillings four pence and that was equal to Strangers and English Merchants This was in those several Reigns the Opinion of all the Iudges of the times whence we may learn how fallible even the Opinion of all the Judges is when the matter to be sesolved must be clear'd by Searchers not common and depends not upon Cases vulgarily known by Readers of the Year Books For since these Opinions it is known those Customes called the Old or Antiqua Custumae were granted to King Edward the First in the Third year of his Reign by Parliament as a new thing and was no Duty belonging to the Crown by the Common Law But the Act of Parliament it self by which this custome was granted is no where extant now but undeniable Evidence of it appears For King Edward
Liegeance and Obedience of the King of England are Aliens born in respect of the time of their birth The time of his birth is chiefly to be considered for he cannot be a Subject born of one Kingdom that was born under the Liegeance of a King of another Kingdom albeit afterwards one Kingdom descend to the King of the other Therefore Ramsey being not under the Liegeance of the King of England at the time of his birth must still continue an Alien though he were naturalized in Ireland Notwithstanding all this it may be urg'd A person naturalized in England is the same as if he had been born in England and a person naturalized in Ireland is the same as if he had been born in Ireland But a person born in Ireland is the same as if he had been Obj. 1 born or naturalized in England Therefore a person naturalized in Ireland is the same as if he had been born or naturalized in England This seems subtile and concluding Answ For Answer I say That the same Syllogism may be made of a person naturalized in Scotland after the Vnion viz. A person naturalized in England is the same with a person born in England and a person naturalized in Scotland after the Vnion is the same with a person born in Scotland after the Vnion But a person born in Scotland after the Union is the same with a person born or naturalized in England Therefore a person naturalized in Scotland after the Union is the same with a person born or naturalized in England Yet it is agreed That a person naturalized in Scotland since the Union is no other than an Alien in England Therefore the same Conclusion should be made of one naturalized in Ireland To differ these two Cases it may be said That the naturalizing Obj. 2 of a person in Scotland can never appear to England because we cannot write to Scotland to certifie the Act of Naturalizing as we may to Ireland out of the Chancery and as was done in the present Case in question as by the Record appears This is a difference but not to the purpose and then it is the same as no difference For I will ask by way of Supposition Admit an Act of Parliament were made in England for clearing all Questions of this kind That all persons inheritable in any Dominion whatsoever whereof the King of England was King whether naturalized or Subjects born should be no Aliens in England it were then evident by the Law That a naturalized Subject of Scotland were no Alien in England yet the same Question would then remain as now doth How he should appear to be naturalized because the Chancery could not write to Scotland as it can to Ireland to certifie the Act of Naturalizing Answ 1 The fallacy of the Syllogism consists in this It is true that a person naturalized in Ireland is the same with a person born in Ireland that is by the Law of Ireland But when you assume That a person born in Ireland is the same with a person born or naturalized in England that is not by the Law of Ireland but by the Law of England And then the Syllogism will have four terms in it and conclude nothing Answ 2.3 But to answer the difference taken there are many things whereof the Kings Courts sometimes ought to be certified which cannot be certified by Certiorari or any other ordinary Writ 42 E. 3. f. 2. b. An Act of Parliament of Scotland may be evidence as a Sentence of Divorce or Deprivation and Forraign Laws for raising or abasing Mony or Customes upon accompt between Merchants but not as Records In the Case of the Lord Beaumond 42 E. 3. a Question grew Whether one born in Ross in Scotland were within the Kings Liegeance because part of Scotland then was and part not in his Liegeance the Court knew not how to proceed until Thorpe gave this Rule That doubtless the King had a Roll what parts of Scotland were in his Liegeance what not upon the Treaty or Conclusion made that therefore they must address themselves to the King to have that certified The like may now happen of Virginia Surenam or other places part of which are in the Kings Liegeance part not So the King hath or may have Rolls of all naturalized Subjects and upon petition to him where the occasions require it may cause the matter in his name to be certified The like may happen upon emergent Questions upon Leagues or Treaties to which there is no common access but by the Kings permission For illustration a feign'd Case is as good as a Case in fact Suppose a Law in Ireland 5 El. c. 4. f. 957 like that of 5. of the Queen That no man should set up Shop in Dublin unless he had serv'd as an Apprentice to the Trade for Seven years and suppose a Law in England That whosoever had served Seven years as an Apprentice in Dublin might set up Shop in London If by a particular Act of Parliament in Ireland J. S. be enabled to set up Shop in Dublin as if he had serv'd an Apprentiship for Seven years by this fiction he is enabled in Ireland to set up but not in London unless he have really served for Seven years as the Law in England requires Considerations That an Act of Parliament of Ireland should so operate as to effect a thing which could not by the Laws of England be done without an Act of Parliament in England regularly seems so strange that it is suppos'd an Act of Parliament of England did first impower the doing of it though it be not extant by an Act of Parliament The Argument then is 1. A man is naturalized in Ireland and thereby no Alien in England which could not lawfully be done without an Act of Parliament in England to impower the doing it Which in effect is to say a thing was done which could not lawfully be done without an Act of Parliament to warrant it Ergo it being done there was an Act of Parliament to warrant it 2. This Supposition seems rather true because other things relating to Ireland and admitted to be Law could not be but by Act of Parliament in England yet no such Act is extant that is that a Writ of Error lies in the Kings Bench to reverse a Judgment given in the Kings Bench in Ireland 3. That this must be by Act of Parliament not by Common Lew because such a Writ did not lye in Wales or Calais at Common Law to reverse an Error there Still the Argument is no better then before Some things are of known Law through many successions of Ages which could not commence without an Act of Parliament which is not extant Therefore a thing wholly new not warranted by any Testimony of former time because it cannot be lawful without an Act of Parliament must be suppos'd without other proof to be lawful by an Act of Parliament If the lawfulness of any
thing be in question suppose the Laws of Ireland were made the Laws of England by Act of Parliament here only Two were material to this Question 1. That a Postnatus of a Forraign Dominion of the Kings should be no Alien the Law is so in Ireland 2. That persons naturalized in England are naturalized for all the Dominions belonging to England if the Law were so in Ireland it follows not That one naturalized there must be naturalized in England thereby for England is not a Dominion belonging to Ireland but è contrario Fitz. Assise pla 382.18 E. 2 A Writ of Error lies to reverse a Iudgment in any Dominions belonging to England Breve Domini Regis non currit in Wallia is not to be intended of a Writ of Error but of such Writs as related to Tryals by Juries those never did run in Forraign Dominions that most commonly were governed by different Laws Error of a Judgment in Assize of Gower's Land in B. R. 18 E. 2. 21. H. 7. f. 31. b. A Writ of Non molestando issued out of the Chancery to the Mayor of Calais retornable in the Kings Bench and by the whole Court agreed That there are divers Presidents of Writs of Error to reverse Iudgments given in Calais though it was Objected They were governed by the Civil Law 7. Rep. f. 20. a. Calvins Case And Sir Edward Coke cites a Case of a Writ directed to the Mayor of Burdeaux a Town in Gascoigny and takes the difference between Mandatory Writs which issued to all the Dominions and Writs of ordinary remedy relating to Tryals in the Kingdom 7 Rep. Calvins Case f. 18. a. And speaking of Ireland among other things he saith That albeit no Reservation were in King John's Charter yet by Judgment of Law a Writ of Error did lye in the Kings Bench of England of an Erroneous Judgment in the Kings Bench in Ireland A Writ of Error lies not therefore to reverse a Iudgment in Ireland by Special Act of Parliament for it lies at Common Law to reverse Iudgments in any Inferior Dominions and if it did not Inferior and Provincial Governments as Ireland is might make what Laws they pleas'd for Iudgments are Laws when not to be revers'd Pla. Parl. 21 E. 1. f. 152 157. Magdulph appeal'd from the Court and Iudgment of the King of Scots before King Edward the First Ut Superiori Domino Scotiae And by the Case in 2 R. 3. f. 12. all the Iudges there agree 2 R. 3. f. 12. assembled in the Exchequer Chamber That a Writ of Error lay to reverse Iudgments in Ireland and that Ireland was subject as Calais Gascoigne and Guyen who were therefore subject as Ireland And therefore a Writ of Error would there lye as in Ireland Another Objection subtile enough is That if naturalizing Obj. 3 in Ireland which makes a man as born there shall not make him likewise as born that is no Alien in England That then naturalizing in England should not make a man no Alien in Ireland especially without naming Ireland and the same may be said That one denizen'd in England should not be so in Ireland Answ The Inference is not right in form nor true The Answer is The people of England now do and always did consist of Native Persons Naturaliz'd Persons and Denizen'd Persons and no people of what consistence soever they be can be Aliens to that they have conquer'd by Arms or otherwise subjected to themselves for it is a contradiction to be a stranger to that which is a mans own and against common reason and publique practise Therefore neither Natives or Persons Naturaliz'd or denizen'd of England or their Successors can ever be Aliens in Ireland which they conquer'd and subjected And though this is De Jure Belli Gentium observe what is said and truly by Sir Edward Coke in Calvin's Case in pursuance of other things said concerning Ireland In the Conquest of a Christian Kingdom 7. Rep. Calvins C. f. 18. a. as well those that served in Warr at the Conquest as those that remain'd at home for the Safety and Peace of their Country and other the Kings Subjects as well Antenati as Postnati are capable of Lands in the Kingdom or Country conquer'd and may maintain any real Action and have the like Priviledges there as they may have in England Another Objection hath been That if a person naturaliz'd in Obj. 4 Ireland and so the Kings natural Subject shall be an Alien here then if such person commit Treason beyond the Seas where no local Liegeance is to the King he cannot be tryed here for Treason contra ligeantiae suae debitum 26 H. 8. c. 13. 33 H. 8. c. 23. 35 H. 8. c. 2. Treason by an Irish man in Ireland or elsewhere may be tryed in England by those Statutes 33 El. Andersons Rep. f. 262. b. Orurks Case Calvins Case f. 23. a. by the Statute of 26 H. 8. or 35 H. 8. or any other Statute to that purpose 1. To that I answer That his Tryal must be as it would have been before those Laws made or as if those stood now repeal'd 2. His Tryal shall be in such case as the Tryal of a person naturalized in Scotland after the Union who is the Kings Subject but an Alien in England Ireland Though Ireland have its own Parliament yet is it not absolute sui juris for if it were England had no power over it and it were as free after Conquest and Subjection by England as before That it is a conquer'd Kingdom is not doubted but admitted in Calvin's Case several times And by an Act of Parliament of Ireland Stat. Hib. 11 12. 13 Jac. c. 5. appears in express words Whereas in former times after the Conquest of this Realm by his Majesties most Royal Progenitors Kings of England c. What things the Parliament of Ireland cannot do 1. It cannot Alien it self or any part of it self from being under the Dominion of England nor change its Subjection 2. It cannot make it self not subject to the Laws of and subordinate to the Parliament of England 3. It cannot change the Law of having Judgments there given revers'd for Error in England and others might be named 4. It cannot dispose the Crown of Ireland to the King of Englands second Son or any other but to the King of England Laws made in the Parliament of England binding Ireland A Law concerning the Homage of Parceners 14 H. 3. called Statutum Hiberniae A Statute at Nottingham 17 E. 1. called Ordinatio pro Statu Hiberniae Laws for Ireland made by E. 3. Pat. Rol. 5 E. 3. pars 1. m. 29. pla Parl. f. 586 per advisamentum Concilii nostri in ultimo Parliamento nostro apud Westm tento An Act that no Arch-bishop Bishop or Prior should be chosen 4 H. 5. c. 6. who were Irish nor come to Parliaments with Irish Attendants The late Acts
eas in omnibus sequantur In cujus c. T. R. apud Wadestocks ix die Septembris Out of the Close Rolls of King Henry the Third his Time Clause 1 H. 3. dorso 14. The Kings thanks to G. de Mariscis Justice of Ireland The King signifies that himself and other his Lieges of Ireland should enjoy the Liberties which he had granted to his Lieges of England and that he will grant and confirm the same to them Clause 3. H. 3. m. 8. part 2. The King writes singly to Nicholas Son of Leonard Steward of Meth and to Nicholas de Verdenz and to Walter Purcell Steward of Lagenia and to Thomas the son of Adam and to the King of Connage and to Richard de Burgh and to J. Saint John Treasurer and to the other Barons of the Exchequer of Dublin That they be intendant and answerable to H. Lord Arch-bishop of Dublin as to the Lord the King's Keeper and Bailiff of the Kingdome of Ireland as the King had writ concerning the same matter to G. de Mariscis Justice of Ireland Clause 5. H. 3. m. 14. The King writes to his Justice of Ireland That whereas there is but a single Justice itinerant in Ireland which is said to be dissonant from the more approved custome in England for Reasons there specified two more Justices should be associated to him the one a Knight the other a Clerk and to make their Circuits together according to the Custome of the Kingdom of England Witness c. The Close Roll. 5 H. 3. m. 6. Dorso The King makes a Recital That though he had covenanted with Geoffrey de Mariscis That all Fines and other Profits of Ireland should be paid unto the Treasure and to other Bailiffs of the Kings Exchequer of Dublin yet he receiv'd all in his own Chamber and therefore is removed by the King from his Office Whereupon the King by advise of his Council of England establisheth that H. Arch-bishop of Ireland be Keeper of that Land till further order And writes to Thomas the son of Anthony to be answerable and intendant to him After the same manner it is written to sundry Irish Kings and Nobles there specially nominated Clause 7. H. 3. m. 9. The King writes to the Arch-bishop of Dublin his Justice of Ireland to reverse a Judgment there given in a Case concerning Lands in Dalkera between Geoffrey de Mariscis and Eve his wife Plaintiffs and Reignald Talbott Tenant By the Record of the same Plea returned into England the Judgment is reversed upon these two Errors The first because upon Reignald's shewing the Charter of King John the King's Father concerning the same Land in regard thereof desiring peace it was denyed him The second Because the Seisin was adjudged to the said Geoffrey and Eve because Reynald calling us to warranty had us not to warranty at the day set him by the Court which was a thing impossible for either Geoffrey or the Court themselves to do our Court not being above us to summon us or compel us against our will Therefore the King writes to the Justice of Ireland to re-seise Reynald because he was disseised by Erroneous Judgment Clause 28. H. 3. m. 7. The King writes to M. Donenald King of Tirchonill to aid him against the King of Scots Witness c. The like Letters to other Kings and Nobles of Ireland Clause 40. E. 3. m. 12. Dorso The King takes notice of an illegal proceeding to Judgment in Ireland Ordered to send the Record and Process into England It was objected by one of my Brothers That Ireland received not the Laws of England by Act of Parliament of England but at the Common Law by King John's Charter If his meaning be that the Fact was so I agree it but if he mean they could not receive them by Act of Parliament of England as my Brother Maynard did conjecturally inferr for his purpose then I deny my Brothers Assertion for doubtless they might have received them by Act of Parliament And I must clear my Brother Maynard from any mention of an Union as was discoursed of England and Ireland Nor was it at all to his purpose If any Union other than that of a Provincial Government under England had been Ireland had made no Laws more than Wales but England had made them for Ireland as it doth for Wales As for the Judgment Obj. One of my Brothers made a Question Whether George Ramsey the younger Brother inheriting John Earl of Holdernes before the naturalization of Nicholas Whether Nicholas as elder Brother being naturalized should have it from him Doubtless he should if his Naturalizing were good He saith the Plaintiff cannot have Iudgment because a third person by this Verdict hath the Title Answ If a Title appear for the King the Court ex Officio ought to give Iudgment for him though no party But if a man have a prior Possession and another enters upon him without Title I conceive the priority of Possession is a good Title against such an Entry equally when a Title appears for a third that is no party as if no Title appear'd for a third But who is this third party For any thing appears in the Verdict George Ramsey died before the Earl 2. It appears not that his Son John or the Defendant his Grand-child were born within the Kings Liegeance Patient appears to be born at Kingston and so the Daughters of Robert by the Verdict The Acts of Ireland except all Land whereof Office was found before the Act to entitle the King but that is in Ireland for the Act extends not to England If Nicholas have Title it is by the Law of England as a consequent of Naturalization So it may be for the Act of 7 Jac. cap. 2. he that is Naturalized in England since the Act must receive the Sacrament but if no Alien by consequent then he must no more receive the Sacrament than a Postnatus of Scotland Obj. Ireland is a distinct Kingdom from England and therefore cannot make any Law Obligative to England Answ That is no adequate Reason for by that Reason England being a distinct Kingdom should make no Law to bind Ireland which is not so England can naturalize if it please nominally a person in Ireland and not in England But he recover'd by saying That Ireland was subordinate to England and therefore could not make a Law Obligatory to England True for every Law is coactive and it is a contradiction that the Inferior which is civilly the lesser power should compel the Superior which is greater power Secondly He said England and Ireland were two distinct Kingdoms and no otherwise united than because they had one Soveraign Had this been said of Scotland and England it had been right for they are both absolute Kingdoms and each of them Sui Juris But Ireland far otherwise For it is a Dominion belonging to the Crown of England and follows that it cannot be separate from it but by
whole Record but to say That in such a Court such a Judgment was obtained 92 10. In pleading of a Judgment it may be as well pleaded quod recuperaret as recuperet 93 11. An erroneous Judgment is a good barr until reversed by Error 94 12. How a Recognizance or Statute ought to be pleaded 102 13. Every Defendant in a Quare Impedit may plead Ne disturba pas 58 14. The pleading of a Seisin in gross Appendancy and Presentation in a Quare Impedit 15 15. The Tenant shall never be received to Counter-plead but he must make to himself by his plea a Title to the Land and so avoid the plaintiffs Title alledged by a Traverse 58 16. A Commoner prescribes for Common for Cattel levant and couchant antiquo Messuagio which is not good because Cattel cannot to a common intent be levant upon a Messuage only 152 153 17. See the form of pleading a Custome to have solam separalem pasturam for the Tenant against the Lord 252 253 18. The pleading of per nomen in a Grant and how it shall be taken 174 175 Pluralities See Title Statute 14 22. 1. If a man have a Benefice with Cure whatever the value is and is admitted and instituted into another Benefice with Cure having no Qualification or Dispensation the first Benefice is void and the Patron may present 131 Pope 1. The Pope could not change the Law of the Land 20 2. He could formerly grant a Dispensation for a plurality 20 23 24 3. He did formerly grant Faculties Dispensations for Pluralities Unions Appropriations Commendams c. 23 Prerogative See King 1. By the Common Law all Wrecks did belong to the King 164 2. The extent of the Kings Prerogative is the extent of his power and the extent of his power is to do what he hath a will to do according to that Ut summae potestatis Regis est posse quantum velit sic magnitudinis est velle quantum potest 357 3. The King may take Issue and afterwards Demurr or first Demurr and afterwards take Issue Or he may vary his Declaration but all this must be done in one Term 65 4. He may choose whether he will maintain the Office or traverse the Title of the party and so take traverse upon traverse 62 64 Prebend and Prebendary 1. What a Prebendary or Rectory is in the eye of the Law 197 2. A Prebend or Church-man cannot make a Lease of their Possessions in the right of the Church without Deed 197 Prescription See Modus Decimandi Custome 1. What Prescriptions for Commons are good and what not 257 2. How Copyholders shall prescribe for Common 254 3. The Tenant a Commoner prescribes against his Lord to have Solam separalem pasturam this is a void prescription 354 355 356 4. Inhabitants not Corporate cannot prescribe in a Common 254 5. One Commoner may prescribe to have Solam separalem pasturam against another Commoner 255 Presentation See Advowson Ordinary Parson Quare Impedit 1. In a Quare Impedit the Plaintiff must alledge a presentation in himself or in those under whom he claims 7 8 57 2. So likewise must the Defendant ibid. 8 3. What a bare presentation is 11 4. A void presentation makes no usurpation 14 5. When the presentation shall make an usurpation ibid. 6. Where the King presents by Lapse without Title and yet hath other good Title the presentation is void ibid. 7. Where a Parson is chosen a Bishop his Benefices are all void and the King shall present 19 20 21 8. Where a Benefice becomes void by accepting another without a Dispensation the Patron is bound to present without notice and where not 131 Presidents 1. An extrajudicial Opinion given in or out of Court is no good president 382 2. Presidents without a Judicial decision upon Argument are of no moment 419 3. An Opinion given in Court if not necessary to the Judgment given of Record is no Judicial Opinion nor more than a gratis dictum 382 4. But an Opinion though erroneous to the Judgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer 382 5. Presidents of Fact which pass sub silentio in the Court of Kings Bench or Common Pleas are not to be regarded 399 6. New presidents are not considerable 169 7. Presidents are useful to decide Questions but in Cases which depend upon fundamental principles from which demonstrations may be drawn millions of Presidents are to no purpose 419 8. Long usage is a just medium to expound an Act of Parliament 169 Privity See Estate 1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and Distrained 39 2. Such privity is created by Attornment ibid. 3. Where a new Estate is gained the privity of the old Estate is lost 43 4. Where it is not lost between Grantor and Grantee of a Rent after a Fine levied by the Grantee to his own use ibid. 5. Where an Estate in a Rent may be altered and no new Attornment or privity requisite 144 Priviledge 1. Priviledge lies only where a man is an Officer of the Court or hath a prior Suit depending in the Common Pleas and is elsewhere molested that he cannot attend it 154 2. All Officers Clerks Attorneys of the Common Pleas and their Menial Servants shall have their Writ of Priviledge 155 Process 1. No Process shall issue from hence into Wales but only Process of Outlawry and Extent 396 397 2. A Fieri Facias Capias ad satisfaciendum or other Judicial Process shall not go from hence thither 397 3. Process in Wales differ from Process in England 400 Prohibition See Title Marriage 1. Prohibitions for encroaching Jurisdiction are as well grantable in the Common Pleas as Kings Bench 157 209 2. A man was sued in the Spiritual Court for having married with his Fathers brothers wife and a Prohibition was granted 206 207 c. 3. The Judges have full conizance of Marriages within or without the Levitical Degrees 207 220 4. They have conizance of what Marriages are incestuous and what not and may prohibit the Spiritual Court from questioning of them ibid. 5. How the suggestion upon the Statute of 32 H. 8. concerning Marriages must be drawn to bring the matter in question 247 Proof See Witnesses Evidence 1. A witness shall be admitted to prove the Contents of a Deed or Will 77 Property 1. In Life Liberty and Estate every man who hath not forfeited them hath a property and right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and to punish the wrong-doer 337 2. To violate mens properties is never lawful but a malum in se 338 3. But to alter or transfer mens properties is no malum in se ibid. Proviso 1. A power is granted to make Leases of Lands
8. before he is consecrated Bishop remains Rector as before after Consecration â—8 H. 6. f. 19. Br. Spoliation pl. 4. 1. Where the Pope licenses one who is created a Bishop to retain his ancient Benefice and the Patron presents another the elder Incumbent sues a Spoliation in the Spiritual Court it well lyes for both claim by the same Patron Quae supradicta omnes concesserunt saith the Book Fitz. N. B. Tit. Spoliation f. 36. b. 2. The Writ of Spoliation lyes properly by one Incumbent against another Incumbent where the right of the Patron comes not in debate As if a person be created Bishop and hath a Dispensation to hold his Rectory and after the Patron presents another Incumbent who is instituted and inducted the Bishop shall have against that Incumbent a Spoliation this proves the Bishop to continue Incumbent after his Consecration and to hold his Rectory by his former presentation Dy. 6. El. f. 228. b. pl. 48. 6 7 El. f. 233. A. p. 12. John Packhurst Rector of Cleve in Gloucestershire had a Dispensation to hold it notwithstanding he were advanc'd to any Bishoprick in the Realm for three years from the Feast of St. Michael 1560. to the same Feast 1563. he was after consecrated Bishop of Norwich and within the three years resign'd the Queen presented _____ one her Chaplain supposing she had title by Cession of the Bishop Sir H. Sydney the Patron brought a Quare Impedit and the Church was found to be void by Resignation of the Bishop of Norwich and recover'd and had Judgment 1. This case proves the Bishop of Norwich Incumbent as formerly notwithstanding his Consecration else the Living had not voided by his Resignation 2. The Dispensation was only for three years yet he was as intire Incumbent and might resign during those three years as if he had not been Bishop 3. It proves the Dispensation may be for a time only to hold his former Benefice ad modum concedentis which clears the last Question that in such a Commendam retinere the Dispensation is good though it be but for as long as he is Bishop of that See and then determines An Incumbent made Bishop and retaining by Dispensation may have which none but a perfect Incumbent can have a Writ of Spoliation Juris Utrum Vi Laica Removenda Annuity for him or Annuity brought against him In the Bishop of Ossory's case they which argued against him conclude out of all this difference results viz. That a Faculty granted to one which is not Incumbent to take a void Benefice is void and a Faculty to one which is Incumbent of a Benefice to retain the same is good The other side for the Bishop concluded the Capere in Commendam good where the Patron was not prejudic'd as in Lapse and consequently the Retinere to be good consented to by him who was to present upon voidance The Commendam Retinere may be for years or any time Colt and Glovers Case Hobart f. 156. the difference is manifest if their nature and reason be observed The difference between Retinere and Capere is no less than between holding that which is already my own and taking that which is anothers I am already benefic'd by Presentation c. in ordinary form I would take a Bishoprick which would void the Benefice therefore I obtain a Dispensation to continue holding my Benefice for three years I remain Parson of the same benefice of no less estate than I had before and when the three years are past the benefice voids as it would have done at the first if there had been no Dispensation And again Hob. f. 158. a Bishop by Dispensation may retain as many Benefices as he had lawfully before but take none of new if he had his number before c. William Bradbridge being Bishop of Exeter Cok. lib. Intr. f. 475. Heales Case Rolls 344. b. pl. 2. obtain'd Letters of Dispensation from the Arch-bishop with the Queens Confirmation to receive any two Benefices with or without cure and retain them with his Bishoprick within his Diocess quamdiu Episcopatui praedict praeesset after he was presented to the Rectory of Newton ferris and dyed and the Patron presented Simonaically and after six Months the Bishop presented as by Lapse and a Quare Impedit brought against him where the avoidance of the Church per mortem of the Bishop of Exeter is admitted though it be taken by protestation in that case that the Church non vacavit per mortem Note the Bishop of Exeter was presented to the Arch-bishop and instituted and inducted If after the death of the last Bishop who held this Church by Dispensation the King may present as the case is the next succeeding Bishop to hold it by Dispensation he may so present the third and so toties quoties there shall be a Bishop of Oxford and for the same reason viz. the small Incomes of the Bishoprick So shall the Patron for ever loose his Presentation omitting nothing to be done nor committing any thing not to be done but doing his duty in presenting a fit person and who deserved to be made Bishop Objections Tr. 9. E. 3. pl. 6 18 E. 3. f. 21. Fitz. N. Br. f. 34. Letter F. The most specious Objection is made upon the Books of ℈ E. 3. 18 E. 3. and the Abbot of Thorneys case there cited That if the King recover in a Quare Impedit and after confirms the Incumbents estate yet after the Incumbents death the King shall present and therefore in this case Answ 1 When the King hath recover'd in a Quare Impedit he hath right to present uncontrolably by the Record and may at his pleasure sue forth Execution and in the mean time permit the Incumbent to continue in the Benefice at his pleasure but here it is denied that the King hath any right to present Answ 2 The Kings permission or grant that the Incumbent should not be troubled during his life cannot be pleaded by the Patron in barr of the Kings right to present by vertue of his Iudgment for the Kings permisson was nothing to the Patron and the King ought to have Execution of his Iudgment when he demands it against him Answ 3 Justice Thyrning also gives the Reason of those Books The Cause 11 H. 4. f. 76. b per Thyrning 45 E. 3. f. 19. saith he is although the King confirms the Incumbents estate yet he had not his estate or possession by the King but by his Patrons presentment and by the Kings confirmation his right was neither executed nor extinct Answ 4 The Kings confirmation in the present case is not of the nature of his confirmation in the case of 9 E. 3. for he doth not here as there he did intend to transfer any right of his into the Incumbent by continuing his possession But his confirmation here is only formal and to compleat the dispensation of the Arch-bishop which
the Intestate owing by him at the time of his death The Plaintiff taking by protestation that nothing alledg'd by the Defendant was true Demurrs upon the Plea The Causes offer'd to maintain the Demurrer are these 1. That one of the Iudgments pleaded in Barr obtain'd by William Allington in the Court of London before the Mayor c. against the Defendant for 2670 l. 17 s. 7 d. due to the said Allington by the Intestate Everard was not duly obtained and is insufficient to Barr the Plaintiff 2. That the Defendants special Plea in Barr appearing in any part of it to be false and insufficient the Plaintiff ought to have Iudgment for his whole debt 1. For the first Cause it was urg'd as an Exception to the Defendants Plea That by the Plea it appears that time out of mind a Court hath been held in the City of London before the Mayor and Aldermen of all personal Actions arising and growing within the said City And that the Intestate was at the time of his death indebted to the said Allington at London within the Parish and Ward of St. Mary Bow and Cheapside But it is not alledg'd That the said debt did arise and grow due in London within the said Parish and Ward for wheresoever the debt did arise and grow due yet the debtor is indebted to the creditor in any place where he is as long as the debt is unpaid And therefore to say The Intestate was indebted to Allington in the said Sum apud London c. affirms not that the debt did arise and grow due at London and if not the Court had no Iurisdiction of the Cause The effect of the Defendants Barr is only to shew That such a Judgment was obtain'd in such a Court against him and not to set forth the whole Record of obtaining it for it were vast Expence of time and mony so to do as often as occasion is to mention a Record and referrs to the Record prout per Recordum plenius liquet where the Plaintiff may take advantage of any defect therein But if that were necessary it is well set forth for his Plea is Et praedictus Willielmus Allington tunc ibidem in eadem Curia secundum consuetudinem Civitatis praedictae affirmabat contra praedictum Rolandum Dee ut Administratorem c. quandam billam originalem de placito debiti c. And the Custome being to hold Plea of personal Actions arising within the City if he affirmed a Bill of Debt according to the Custome It must be of a debt arising and growing due within the City 2. A second Exception was That it is not set forth for what the debt was whereby the Court may judge whether it were payable or not by the Administrator To this it was answer'd That the course in London is for the Plaintiff to declare that the Debtor being indebted to him at such a time and place Concessit solvere such a Sum to him at such a time for they enter not there at large as at Westminster all the pleading and the City Customes have been often confirmed by Parliament and if Exception be taken to the Jurisdiction it must come from the Defendant However that will not avoid the Iudgment and is but Error 3. A third Exception was It is not set forth that the Intestate was indebted to Allington in his own right But it must be intended if he were indebted to him by Law that it was in his own right 4. A fourth Exception was That the Defendant pleads Iudgment was given for the Plaintiff quod recuperaret debitum praedictum where the Iudgment should be quod recuperet It is not the Defendants concern to recite the words of the Iudgment as it was given by the Court but the effect of it relating to the Defendant and so it is more proper to say Iudgment was given quod recuperaret The Court say ideo consideratum est per Curiam but he who relates what they did saith ideo consideratum fuit per Curiam But my Book is quod recuperet 5. A fifth Exception was That the Plea sets forth the Action was brought against the Defendant Dee in London as Administrator of the Intestate omitting durante minori aetate Caroli Everard filii That will not avoid the Iudgment Rolls Good Pincents Case Tit. Executors f. 910. 14 Car. 1. B.R. Piggots Case 5 Rep. though the Minor were of Age sufficient to administer himself nor is it of prejudice to any as was resolved in the Case of one Pincent But if an Administrator durante minori aetate brings an Action he must averr the Administrator or Executor to be under the Age of Seventeen years 6. Sixthly it was urg'd as resolv'd in Turners Case Turners Case 8. Rep. f. 132. That the Recital of Allingtons Declaration in London not mentioning the Debt to be per scriptum obligatorium it shall not be intended to be so And it was urg'd as resolv'd in that Case of Turner also That it being a Debt but by simple Contract the Administrator was not chargeable with it That is a Resolution in Turners Case supernumerary and not necessary to support the Iudgment given and consequently no Iudicial Resolution for the Iudgment given in Turners Case was well given because the Iudgments given before the Mayor of Cicester pleaded in barr of the Plaintiffs Action were resolv'd to be coram non Judice because it appear'd not that the Mayor of Cicester had any Iurisdiction to hold Plea by Patent or Prescription But admitting that an Executor or Administrator according to that Resolution is not chargeable if by chargeable be meant compellable at the Common Law in an Action of Debt brought upon a simple Contract of the Testator or Intestate to pay such Debt what would it avail the Plaintiff in that Case or can in this Case unless the Resolution had been That though the Iurisdiction of the Court of Cicester had been well set forth yet a Iudgment there obtain'd against the Executor upon a simple Contract of the Testators had been no Barr in an Action of Debt brought upon an Obligation of the Testators But there is no such Resolution there for a Iudgment obtain'd upon such a simple Contract is as much a Iudgment when had as any other upon Obligations and the Books and use are clear That Judgments must be satisfied before Debts due by Obligation It is true it is a Waste of the Goods of the Dead in the Executor to pay voluntarily a Debt by simple Contract before a Debt by Obligation whereof he had notice and not otherwise in that Case But no man ever thought it a Devastavit in the Executor to satisfie a Iudgment obtain'd upon a simple Contract before a Debt due by Obligation Yet I shall agree the Executor by the Common Law might have prevented this Iudgment by abating the Plaintiffs Writ at first which he had power lawfully to do but he had equal
double Costs and other Advantages as by the Act of 7 Jac. cap. 5. is provided The first Question upon this Special Verdict is Whether if any Officer in the Act mentioned or any in his assistance shall do things by colour of their Office not touching or concerning their said Office and shall be therefore impleaded Or if they or any of them shall be impleaded for or concerning any matter cause or thing by them or any of them done by pretence of their Offices and which is not strictly done by virtue or reason of their Office but is a misfeasance in Law shall have the benefit of this Act of having the matter tryed in the County where the Fact was done and not elsewhere If so 1. They shall not have the Tryal for any matter touching their Offices in the County where the Fact was done unless the Plaintiff please to lay it there and if he so pleas'd it might have been laid there before the Act of 21. which was purposely made to compel the laying of the Action where the Fact was done 2. By such Exposition of the Act the Action shall never be laid where the Fact was done for if it may be laid elsewhere at all if it be found upon the Tryal That the Officers question'd did not according to their Office there will be no cause to lay the Action in the proper County for the Iury where the Action is laid will find for the Plaintiff for the Misfeazance and if it be found the Defendants have pursued their Office wherever the Action is laid the Iury will find for the Defendants and then no cause to lay an Action in the County where the Fact was done So Quacunque via data the Act will be useless 3. If it can be laid in another County without hearing Evidence it cannot be known whether the Officer hath misdone or not How then can the Iury as the Act directs find the Defendants Not guilty without regard or respect to the Plaintiffs Evidence for then the Iury must regard the Evidence to find whether the Officer hath mis-done and not regard the Evidence at all to find the Officers Not guilty as the Act doth order Nor is there any inconvenience because by the Intention of Law whether the Officers have done justifiably or not without this Act of 21. the Action ought to be laid where the Fact was done and the Act is but to compel the doing of that where an Officer is concerned that otherwise fieri debuit though factum valet not being done The second Question is Whether upon the special points referred to the Court by the Iury they have found all the Defendants or any of them and whom Not guilty It hath been admitted at the Barr That the Defendants excepting Sir Richard Coxe cannot be found culpable by this Act of 21. and it being a Trespass that some may be guilty and not others which is true But the Question is not Whether some of the Defendants might have been found guilty and others not but whether as this Verdict is all or none must be Culpable 1. The Iury referr to the Court Si actio praedicta potuit commensari in London then they find all the Defendants culpable And if actio praedicta potuit commensari tantummodo in the County of Gloucester then they find all the Defendants by name Not Culpable So as the matter is Whether this individual Action brought joyntly against all the Defendants might be laid in London For that is the Actio praedicta not whether an Action might be laid in London for the Trespass against any of these Defendants and in that first sense Actio praedicta could not be in London for it could not be there laid as to some of the Defendants 2. Secondly they referr to the Court Whether Actio praedicta which is this Action jointly brought against all the Defendants could only be laid in the County of Gloucester and if so they find for the Defendants to which the Court must answer That this Action so jointly brought could only be laid according to Law ad omnem Juris effectum in the County of Gloucester 3. Thirdly if the Court should be of Opinion That the Action was well laid as to Sir Richard Coxe but not the rest the Iury find not him Guilty and not the rest for they find all equally Guilty or equally not Guilty 4. Fourthly That which differs his Case from the rest is That he was not assistant or aiding to the Constable for he bad that is praecepit or commanded the Constable to put the Plaintiff in Cippis But as to that the ancient Law was both adjudg'd in Parliament and allowed That it was contra consuetudinem Regni that a man should be condemn'd in a Trespass De praecepto or auxilio if no man were convicted of the Fact done It was the Case in Parliament of Bogo de Clare 18 E. 1. John Wallis Clerk entred his House and brought Letters of Citation from the Arch-bishop of Canterbury Some of the Family of Bogo made Wallis eat the said Process and Wax thereto affixed Et imprisonaverunt male tractaverunt For which and the Contempt to the King he brought his Action against Bogo who pleaded That he named no persons in certain nor alledg'd that the Fact was done by his command and demanded Iudgment thereupon and was discharged Notwithstanding by the Kings pleasure for so enormous a Trespass done in Contempt of the Church for the Contempt done within the Verge and in time of Parliament and for the bad Example Bogo was commanded to answer the King of the Trespass done in his House Et per Manupastos Familiares suos and a day given him to produce before the King and his Council those of his Family which was accordingly done but they who were said to have done the Fact were fled Et super hoc idem Bogo perit Judicium si de Praecepto missione vel assensu si sibi imponeretur ad sectam Domini Regis respondere debeat antequam factores principales aliquo modo de facto illo convincantur Whereupon Iudgment was given Et quia per consuetudinem legem Angliae Nullus de praecepto vi auxilio aut missione respondere debeat antequam factores aliquo modo convincantur Consideratum est quod praedictus Bogo ad praesens eat inde sinedie praedictus Jo. le Wallis sequatur versus factores principales prout sibi viderit expediri si voluerit six persons manuceperunt praedictum Bogonem ad habendum ipsum coram Domino Rege ad respondendum ipsi Domino Regi ad voluntatem suam cum praedicti factores de facto illo fuerint convicti si Dominus Rex versus eum inde loqui voluerit A Iudgment in Parliament at the Kings Suit That it was against the Custome and Law of the Kingdom to convict a man de praecepto auxilio aut missione in a Trespass before some who
meaning can be given to his Covenant Accordingly the new Authorities run grounded upon that sound and ancient Reason of Law That the Lessor shall not be charg'd with an Action upon his express Covenant for enjoyment of the term against all men where the Lessee hath his proper Remedy against the wrong doer Against this Truth there is one Book that hath or may be pretended which I will cite in the first place because the Answer to it may be more perspicuous from the Authority I shall after deliver to redargue that Case Dyer 15 16 Eliz. 328. a. pl. 8. It is the Case of Mountford and Catesby in the Lord Dyer Catesby in consideration of a Sum of mony and a Horse made a Lease to Mountford for term of years Et super se assumpsit quod the Plaintiff Mountford pacifice quiete haberet gauderet the Land demis'd durante termino sine evictione interruptione alicujus personae after Catesby's Father entred upon him and so interrupted him whereupon Mountford brought his Action upon this Assumpsit and Catesby pleaded he did not assume and found against him It was moved in Arrest of Judgment for the Defendant That the entry might be wrongful for which the Plaintiff had his Remedy but disallowed and Iudgment affirmed for the Plaintiff because saith the Book it is an express presumption and assumption that the Plaintiff should not be interrupted And this Case is not expresly denied to be Law in Essex and Tisdales Case in the Lord Hobart as being an express Assumption Though the Lord Dyers Case be an Action of the Case upon an Assumpsit and out Case an Action of Covenant yet in the nature of the Obligation there seems no difference but in the form of the Action For to assume that a man shall enjoy his term quietly without interruption and to covenant he shall so enjoy it seems the same undertaking But if the reason of Law differ in an Assumpsit from what it is in a Covenant as seems implyed in Tisdales Case then this Case of the Lord Dyer makes nothing against the Case in question which is upon a Covenant not an Assumpsit Hob. f. 34 35. 1. Elias Tisdale brought an Action of Covenant against Sir William Essex and declared That Sir William convenit promisit agreavit ad cum praedict Elia quod ipse idem Elias haberet occuparet gauderet certain Lands for Seven years into which he entred and that one Elsing had Ejected him and kept him out ever since Resolv'd because no Title is laid in Elsing he shall be taken to enter wrongfully and the Lessee hath his Remedy against him Therefore adjudg'd for the Defendant Essex Here is a Covenant for enjoying during the term the same with enjoying without interruption for if the enjoyment be interrupted he doth not enjoy during the term the same with enjoying without any interruption the same with enjoying without interruption of any person which is the Lord Dyers Case but here adjudg'd the interruption must be legal or an Action of Covenant will not lye because there is remedy against the Interrupter So is there in the Lord Dyer's Case And a Rule of that Book is That the Law shall never judge that a man Covenants against the wrongful acts of strangers unless the words of the Covenant be full and express to that purpose which they are not in our present Case because the Law defends against wrong Brocking brought an Action upon an Assumpsit against one Cham and declared Brocking versus Cham Cr. 15 Jac. f. 4. 5. p. 10. That the Defendant assumed the Plaintiff should enjoy certain Lands according to his Lease without the lett interruption or incumbrance of any person and shews in Fact That this Land was extended for Debt due to the King by process out of the Exchequer and so incumbred After Verdict for the Plaintiff it was moved in Arrest of Iudgment That no good breach was assigned because he did not shew that the Incumbrance was a lawful Incumbrance for else he might have his Remedy elsewhere and Iudgment was given for the Defendant This Case was upon an Assumpsit as the Lord Dyers was and by as ample words for the Land was to be enjoyed without any lett which is equivalent to the words of quiete pacifice in the Lord Dyers Case which is a Case in terminis adjudged contrary to that in the Lord Dyer and upon the same reason of Law in an Assumpsit as if it had been a Covenant viz. because the Plaintiff had his Remedy against the wrong doer Chauntfloure brought an Action of Covenant against one Pristly and Doctor Waterhouse as Executors of John Mountfitchett Cr. 45 El. f. 914. pl. 4. and declared That the Testator had sold him Nine and twenty Tuns of Copras and agreed That if the Testator faild of payment of a certain Sum of mony upon a day certain That the Plaintiff might quietly have and enjoy the said Copras that the money was not paid at the day and that he could not have and enjoy the said Nine and twenty Tuns of Copras Iudgment was given by Nihil dicit against the Defendants and upon a Writ of Enquiry of Damages 260 l. Damages given Vpon motion in Arrest of Iudgment It was resolved by the whole Court That the breach of Covenant was not well assign'd because no lawful disturbance was alledg'd and if he were illegally hindred or disturbed of having the Copras which he had bought he had sufficient remedy against the wrong doers Dod was bound in an Obligation to Hammond conditioned that Hammond and his Heirs might enjoy certain Copyhold Lands surrendred to him The Defendant pleaded the Surrender and that the Plaintiff entred and might have enjoyed the Lands To which the Plaintiff replyed That after his Entry one Gay entred upon him and outed him It was adjudg'd the Replication was naught because he did not shew that he was evicted out of the Land by lawful Title for else he had his Remedy against the wrong doer This was in an Action of Debt upon a Bond condition'd for quiet enjoyment So as neither upon Covenant upon Assumpsit or Bond condition'd for quiet enjoying unless the breach be assign'd for a lawful Entry or Eviction and upon the same reason of Law because the lessee may have his Remedy against the wrong doers an Action of Covenant cannot be maintain'd Cok. 4 Rep. Nokes's Case To these may be added a Resolution in Nokes his Case in the fourth Report where a man was bound by Covenant in Law That his Lessee should enjoy his term and gave Bond for performance of Covenants in an Action of Debt brought upon the Bond the breach was assign'd in that a stranger had recover'd the Land leas'd in an Ejectione firmae and had Execution though this Eviction were by course of law yet for that an elder and sufficient Title was not alledg'd upon which the Recovery was had
it was no breach of the Covenant Inconveniencies if the Law should be otherwise 1. A mans Covenant without necessary words to make it such is strain'd to be unreasonable and therefore improbable to be so intended for it is unreasonable a man should Covenant against the tortious acts of strangers impossible for him to prevent or probably to attempt preventing 2. The Covenantor who is innocent shall be charg'd when the Lessee hath his natural Remedy against the wrong doer And the Covenantor made to defend a man from that from which the Law defends every man that is from wrong 3. A man shall have double Remedy for the same injury against the Covenantor and also against the wrong doer 4. A way is open'd to damage a third person that is the Covenantor by undiscoverable practise between the Lessee and a stranger for there is no difficulty for the Lessee secretly to procure a stranger to make a tortious Entry that he may therefore charge the Covenantor with an Action Application of the Reason of Law to the Case in Question 1. When a man Covenants his Lessee shall enjoy his term against all men he doth neither expresly covenant for his enjoyment against tortious Acts nor doth the Law so interpret his Covenant So here when the Lessor Covenants the Lessee shall enjoy against his Assigns he doth not covenant expresly against their tortious acts nor ought the Law to interpret that he doth more than in the other Case 2. It is as unreasonable he should Covenant against the tortious Entries of his Assigns as against the tortious Entries of all other strangers For he hath no prospect who of his Assigns may wrongfully Eject his Lessee more than what other stranger may do it nor any power to prevent the tort of the one more than of the other as being equally unknown to him Nor is there any sensible difference to be found where a man Covenants his Lessee shall enjoy quietly against all the Johns and all the Thomasses in the world than where against all men for though the one Covenant be narrower than the other yet the Covenantor can no more prevent the wrongs may be done by the Johns and Thomasses than he can the wrongs may be done by any man Nor can the Covenantee fear more a wrong to be done by them than by any other person not so named 3. If the Assignee of the Lessor enters tortiously upon the Lessee he hath his proper and natural Remedy equally against him as against any other stranger that so doth 4. If the Lessee may charge the Covenantor with an Action in this Case for his Assignees tortious Entry then he may be doubly satisfied for the same Damage viz. by the Covenantor upon his Covenant and by the Assignee for his Trespass which the Law permits not but in rare Cases and upon special Reasons 5. The Lessee may as well combine with some remote Assignee of the Lessors to make a wrongful Entry to the end to charge the Covenantor therewith upon his Covenant as with any other stranger 6. Lastly by the very words of this Covenant the Lessor cannot be charg'd with breach of Covenant for the tortious Entry or Interruption of his Assignee The words are That the Lessee should lawfully legitime haberet teneret gauderet tenere gaudere potuisset the Premisses without the Lett Interruption c. of the Defendant his Executors Administrators and Assigns If the Lessor were to be charg'd with the tortious Acts of his Assigns there needed no more if those words would do it than to say That the Lessee should have hold and enjoy the Lands demis'd without interruption of the Lessor his Executors Administrators and the word lawfully was useless and sensless in the Covenant also But when it is said That he should and might lawfully have hold and enjoy it against the Lessor his Executors Administrators and Assigns What other meaning can be given the words than that he might according to Law enjoy it and that the Lessor his Executors Administrators or Assigns should not have power lawfully to hinder him For a man then is said to enjoy a thing lawfully when no man lawfully can hinder his enjoying it So as by all the Authorities cited by all the Reasons of Law anciently and modernly and by the particular words of the Covenant in question the Defendant cannot be charg'd with breach of his Covenant for the tortious Entry of his Assignee upon the Plaintiff A Replevin brought and the beasts retorn'd Elongata whereupon there was a Capias in Withernam and Nine Oxen taken the Plaintiff in the Replevin gave the Sheriff's Bailiff a Bond of Ten pounds to save him harmless for those Oxen the Defendant in the Replevin whose Beasts they were brought a Detinue against the Bailiff and thereupon he sued his Bond for his Damage in being distrain'd in the Detinue this appearing to the Court and Judgment demanded in the Action of Debt Brintsley said Quides vous que il doit Defender encounter touts le Mond non ferra ne encounter null Action aut quel vous poies aver droiturel defence sans luy per la ley per que avises vous and so was the general Opinion but it was not adjudg'd The Difference between this Covenant and a general Covenant against all men 1. It is said this is not a general Covenant to enjoy against all men wherein the Law is clear but rather a Covenant against particular men 2. That there is Authority That if a man Covenant for quiet Enjoyment against a particular person that Covenant shall extend to the tortious as well as legal Entries of such particular person The Covenant in question is no particular Covenant though it be not the most general no more is a Covenant to enjoy against all of the names of Thomas and John or against all men now living or against all claiming under the Covenantor yet no man conceives it more rational to charge the Covenantor for tortious Entries done by such than for the tortious Entries of men of any other name And it is as uncertain to the Covenanâ—or and Covenantee who are Assignees or what Assignee of the Lessor will make a tortious Entry as what other man will do it But not so of a particular person who is in the Covenantors prospect to prevent and the Covenantees to fear 1. In a Covenant for Enjoyment against all men a man Covenants for enjoyment against himself Executors Administrators and Assigns for they are a part of all men but not against their tortious Entries more than against all other mens tortious Entries If a man Covenant for enjoyment against his Executors Administrators and Assigns and all others it is not a different Covenant from that of enjoyment against all men for a mans Executors Administrators and Assigns and all others are all men So if a man Covenants for enjoyment against A. B. and C. and all others it is the same as to
them in Civil Tryals And how the Iury should in any other manner according to the course of Tryals us'd find against the direction of the Court in matter of Law is really not conceptible True it is if it fall out upon some special Tryal that the Iury being ready to give their Verdict and before it is given the Iudge shall ask whether they find such a particular thing propounded by him or whether they find the matter of Fact to be as such a Witness or Witnesses have depos'd and the Iury answer they find the matter of Fact to be so if then the Iudge shall declare The matter of Fact being by you so found to be the Law is for the Plaintiff and you are to find accordingly for him If notwithstanding they find for the Defendant this may be thought a finding in matter of Law against the direction of the Court for in that case the Iury first declare the Fact as it is found by themselves to which Fact the Iudge declares how the Law is consequent And this is ordinary when the Iury find unexpectedly for the Plaintiff or Defendant the Iudge will ask How do you find such a Fact in particular and upon their answer he will say then it is for the Defendant though they found for the Plaintiff or è contrario and thereupon they rectifie their Verdict And in these Cases the Iury and not the Iudge resolve and find what the Fact is Therefore alwaies in discreet and lawful assistance of the Iury the Iudge his direction is Hypothetical and upon supposition and not positive and upon coercion viz. If you find the Fact thus leaving it to them what to find then you are to find for the Plaintiff but if you find the Fact thus then it is for the Defendant But in the Case propounded by me where it is possible in that special manner the Iury may find against the Direction of the Court in matter of Law it will not follow they are therefore finable for if an Attaint will lye upon the Verdict so given by them they ought not to be fined and imprisoned by the Judge for that Verdict for all the Iudges have agreed upon a full conference at Serjeants Inn in this case And it was formerly so agreed by the then Judges in a Case where Justice Hide had fined a Jury at Oxford for finding against their Evidence in a Civil Cause That a Jury is not finable for going against their Evidence where an Attaint lies for if an Attaint be brought upon that Verdict it may be affirmed and found upon the Attaint a true Verdict and the same Verdict cannot be a false Verdict and therefore the Jury fined for it as such by the Judge and yet no false Verdict because affirmed upon the Attaint Another Reason that the Jury may not be fined in such case is because until a Jury have consummated their Verdict which is not done until they find for the Plaintiff or Defendant and that also be entred of Record they have time still of deliberation and whatsoever they have answered the Judge upon an interlocutory Question or Discourse they may lawfully vary from it if they find cause and are not thereby concluded Whence it follows upon this last Reason That upon Tryals wherein no Attaint lies as well as upon such where it doth no case can be invented wherein it can be maintained that a Jury can find in matter of Law nakedly against the direction of the Judge And the Judges were as before all of Opinion That the Retorn in this latter part of it is also insufficient as in the former and so wholly insufficient But that this Question may not hereafter revive if possible It is evident by several Resolutions of all the Judges That where an Attaint lies the Judge cannot fine the Jury for going against their Evidence or Direction of the Court without other Misdemeanour For in such case finding against or following the direction of the Court barely will not barr an Attaint but in some case the Judge being demanded by and declaring to the Jury what is the Law though he declares it erroneously Ingersalls C. Cr. 35 El. f. 309. n. 18. and they find accordingly this may excuse the Jury from the Forfeitures for though their Verdict be false yet it is not corrupt but the Iudgment is to be revers'd however upon the Attaint for a man loseth not his right by the Judges mistake in the Law Therefore if an Attaint lies for a false Verdict upon Indictment not Capital as this is either by the Common or Statute Law by those Resolutions the Court would not fine the Jury in this case for going against Evidence because an Attaint lay But admitting an Attaint did not lye as I think the Law clear it did not for there is no Case in all the Law of such an Attaint nor Opinion but that of Thirnings 10 H. 4. Attaint 60. 64. for which there is no warrant in Law though there be other specious Authority against it toucht by none that argued this Case The Question then will be Whether before the several Acts of Parliament which granted Attaints and are enumerated in their order in the Register Reg. f. 122. a. the Judge by the Common Law in all Cases might have fined the Jury finding against their Evidence and direction of the Court where no Attaint did lye or could so do yet if the Statutes which gave the Attaints were repeal'd If he could not in Civil Causes before Attaints granted in them he could not in Criminal Causes upon Indictment wherein I have admitted Attaint lies not for the fault in both was the same viz. finding against Evidence and Direction of the Court and by the Common Law the Reason being the same in both the Law is the same That the Court could not Fine a Jury at the Common Law where Attaint did not lye for where it did is agreed he could not I think to be the clearest position that ever I consider'd either for Authority or Reason of Law After Attaints were granted by Statutes generally As by Westminster the First c. 38. in Pleas Real and by 34 E. 3. c. 7. in Pleas Personal and where they did lye at Common Law which was only in Writs of Assise The Examples are frequent in our Books of punishing Jurors by Attaint But no Case can be offer'd either before Attaints granted in general or after That ever a Jury was punish't by Fin◠and Imprisonment by the Judge for not finding according to their Evidence and his Directtion until Popham's time nor is there clear proof that he ever fined them for that Reason separated from other Misdemeanor If Juries might be fined in such Case before Attaints granted why not since for no Statute hath taken that power from the Judge But since Attaints granted the Judges resolved they cannot Fine where the Attaint lies therefore they could not Fine before Sure this latter Age did
then Vous saves bien que de ley cestuy que demand per Formedon in Reverter ne serra barr per le garranty cestuy à que les Tenements fuerunt done in tayl sil ne eyt per descent tout soit il heire à luy le quel Roy ad per descent ou non ne poiomus enquire And on this Case Sir Edward Coke makes an Observation That the King was not bound by a Collateral warranty for the Reversion of an Estate in tayl no more is any other Donor by that Case So as Sir William Herle's Iudgment who was then Chief Justice of the Common Pleas in three several years and several Cases was directly contrary to what Finchden 41 E. 3. said it was upon Report Besides the contrary of what my Brother Ellis urg'd from this Case may be thus inferr'd out of it This Case admits that the Statute restrains the warranty of the Donee from barring some Donor viz. a Donor stranger in blood as was said for it restrains Alienation without warranty against all Donors but the Statute did not restrain the Donees warranty from barring such a Donor for his warranty could never descend upon a stranger and the Statute did not restrain a thing which could not be Therefore ex concesso the Statute restrained the Donees warranty from barring the Donor of blood to the Donee 7 E. 3. 34. p. 44. 5. The fifth Objection was a Case 7 E. 3. that Tenant in tayl made a Feoffment in Fee and died issuless and the Feoffee rebutted the Donor by the warranty This Case rightly understood is not to the purpose for the Donor was not rebutted by the warranty of Tenant in tayl which is the present question but by the Donors own warranty The Case was That A. gave Land to W. and E. his wife Habendum praedictis W. E. haeredibus inter se legitime procreatis and warranted those Tenements to the said W. E. haeredibus eorum seu assignatis The Heir in tayl made a Feoffment in Fee and died leaving no Issue inheritable and the Donor was rebutted in his Formedon in Reverter by his own warranty having warranted to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee And it was adjudg'd against the Donor after in the same year as appears 46 E. 3. f. 4. b. and there admitted good Law 46 E. 3. f. 4. b. But Sir Edward Coke denies this Case to be Law now saying That the warranty determined with the Estate tayl to which it was first annexed and doubtless it did so as to Voucher but whether as to Rebutter of the Donor the party rebutting having the Land though another Estate in it and deriving the warranty to himself as Assignee is not clear 6. A sixt Objection was made from a Case 27 E. 3. f. 83. of a Formedon in Reverter brought 27 E. 3. f. 83. pl. 42. and the Deed of Tenant in tayl Ancestor to the Demandant shewed forth but the Book mentions no warranty but it is like it was a Deed with warranty and the Plaintiff durst not demurr but traversed the Deed as any would avoid demurring upon the validity of an Ancestor's Deed when he was secure there was no such Deed of the Ancestor 7. 4 E. 3. f. 56. pl. 58. The last Objection was a Case 4 E. 3. f. 56. p. 58. where Tenant in tayl made a Feoffment with warranty and the warranty descended upon him in the Remainder in tayl which barr'd him which is a Case agreed as before For the Statute of Westminster the second provides not at all for hâ—m in Remainder but as to him Tenant in tayls warranty is left as at Common Law In 4 E. 3. a Formedon in the Descender was brought by the Issue in tayl and the Release of his elder Brother 4 E. 3. f. 28. pl. 57. with warranty was pleaded by the Tenant Stoner who gave the Rule in the Case Le statute restraynes le power del Issue in tayl to alien in prejudice of him in the Reversion by express words and à Fortiori the power of the Issue in tayl is restrain'd to alien in prejudice of the Issue in tayl Whereupon the Tenant was rul'd to answer and pleaded Assets descended Here it was admitted 10 E. 3. f. 14 pl. 53. the Issue in tayl could not alien with warranty in prejudice of the Reversioner And in 10 E. 3. soon after a Formedon in Reverter being brought and the warranty of Tenant in tayl pleaded in barr Scot alledg'd the restraint of the Statute as well for the Reversioner as for those claiming by descent in tayl The same Stoner demanding if the Ancestor's Deed was acknowledg'd and answered it was His Rule was That the Iudgment must be the same for the Reversioner as for the Issue in these words Ore est tout sur un Judgment which can have no other meaning considering Scot's words immediately before that the Law was the same for the Reversioner as for the Issue in tayl and Stoner's Opinion in the Case before to the same effect 4 E. 3. Objections from Modern Reports Moore f. 96. pl. 239. In Moore 's Reports this Case is A man seis'd of Land having Issue two Sons devis'd it to his youngest Son in tayl and the eldest Son died leaving Issue a Son the youngest aliened in Fee with warranty and died without Issue the Son of the eldest being within age If this Collateral warranty shall bind the Son within age without Assets notwithstanding the Statute of Westminster the second was the question And the Opinions of Plowden Bromley Solicitor Manwood and Lovelace Serjeants and of the Lord Dyer and Catlin Chief Iustice were clear That it is a Collateral warranty and without Assets did barr notwithstanding his Nonage for that his Entry was taken away And this was the Case of one Evans 12 13 of the Queen as it was reported to me This Opinion makes against me I confess but give it this Answer 1. This Case is not reported by Sir Francis Moore but reported to him non constat in what manner nor by whom 2. It was no Judicial Opinion for Plowden Bromley Solicitor two Serjeants Manwood and Lovelace are named for it as well as Dyer and Catlin who were then Chief Iustices of the several Courts which proves the Opinion not only extra-judicial but not given in any Court 3. The motive of their Opinion was because the warranty was Collateral which is no true reason of the binding or not of any warranty 4. An extra-judicial Opinion given in or out of Court is no more than the Prolatum or saying of him who gives it nor can be taken for his Opinion unless every thing spoken at pleasure must pass as the speakers Opinion 5. An Opinion given in Court if not necessary to the Judgment given of Record but that it might have been as well given if no such or a contrary Opinion had
Ne Exeat Regnum de Leproso amovendo de Apostata Capiendo ad quod damnum and Writs to call persons thence as hath been done before they had Burgesses to the Parliament of England And Writs of Error into all Dominions belonging to England lye upon the ultimate Iudgments there given into the Kings Courts of England to reverse Judgments or affirm which is the only Writ which concerns Right and Property between the Subjects that lies The Reasons are First for that without such Writ the Law appointed or permitted to such inferiour Dominion might be insensibly changed within it self without the assent of the Dominion Superiour Secondly Judgments might be then given to the disadvantage or lessening of the Superiority which cannot be reasonable or to make the Superiority to be only of the King not of the Crown of England as King James once would have it in the Case of Ireland ex relatione J. Selden mihi whom King James consulted in this Question The practice hath always been accordingly as is familiarly known by reversal or affirmance of Judgments given in the Kings Bench in Ireland in the Kings Bench here which is enough alone to prove the Law to be so to other subordinate Dominions 21 H. 7. f. 3. And it is as clear That Writs of Error did lye in the Kings Bench to reverse Judgments in Calais and the reason is alike per Curiam for which were divers Presidents This being the state of Wales when it first became an Accession to the Dominion of England under E. 1. and when it was far from the Jurisdiction of the Courts of Justice in England as before it was added to the Dominion of the Crown of England And as other Dominions added to it were 7 H. 4. f. 14. it was questioned only Whether a Protection quia moratur in obsequio nostro in Wallia were good because saith the Book it is within the Realm of England it may be as in the Case of Bastardy the Husband being infra quatuor maria which doubtless was the Isle of Brittain so the Primacy of Bishops in Scotland and Wales was that of England Qu. about this but that gives no Jurisdiction to the Courts There were two ways by which alteration might be wrought The first by Act of Parliament in England making Laws to change either the Laws or Jurisdictions of Wales or both The second by Alterations made in the Laws formerly by him established by E. 1. himself and perhaps by his Successors Kings of England without Parliament by a Clause contained in the Close of that Statute or Ordinance called Statutum Walliae in these words Et ideo vobis Mandamus quod premissa de caetero in omnibus observetis ita tantum quod quotiescunque quandocunque ubicunque nobis placuerit possimus predicta Statuta eorum partes singulas declarare interpretari addere sive diminuere pro nostrae libito voluntatis prout securitati nostrae terrae nostrae predictae viderimus expediri This seems to extend but to the person of E. 1. and not to his Successors and however no such change was made by Him or his Successors But the first remarkable Alteration made seems to have been by Act of Parliament and probably in the time of E. 1. who reigned long after the Statute of Wales but the Act it self is no where extant that I could learn But great Evidence that such there was which in some measure gave a Jurisdiction to the Kings Courts of England in Wales not generally but over the Lordships Marchers there This appears clearly by a Case Fitz. Ass 18 E. 2. pl. 382. not much noted nor cited by any that I know to this purpose being out of the printed Year-Books but printed by Fitz-herbert out of the Reports he had of E. 2. as he had of E. 1. and H. 3. all which we want wholly though some Copies are extant of E. 2. which Case is the only light that I know to clear the Question in hand An Assise of Novel Disseisin was brought against C. de libero tenemento in Gowre and the Writ was directed to the Sheriff of Glocester and the Plaint was made of two Commots which is mis-printed Commons and comprehends all Gouers-land now part of the County of Glamorgan by 27 H. 8. but was not so then the Assise past against the Tenant before the Iustice assigned to take Assises in the Marches of Wales The Tenant brought his Writ of Error and Assignes for Error 1. That the Writ was directed to the Sheriff of Glocester and the Land put in view was in Wales 2 That the Land was out of the Power and Bayliwick of the Sheriff of Glocester 3 That the Assise ought to be taken in the County where the Land lies and that Goures-land was in no County 4 That the Writ was de libero tenemento in villa sive Hamletto de Gouerse and Gouer was no Village or Hamlet but an entire Country consisting of two Commots To these Errors assigned Scroope then Chief Justice made Answer 1. That Gower is a great Barony in the Marches of Wales and That every Barony of the Marches hath a Chancellor and its own Writs whereby one Tenant wronged by another may be righted But when the Lord is outed of his intire Barony he can have no remedy by his own Writ for he is outed of all his Jurisdiction And it is repugnant to demand Iustice of him whose Iurisdiction is questioned that is to give it ut mihi videtur That therefore it was ordained by Parliament when the Baron or Marcher is outed of his Barony in the Marches of Wales he ought to go to the King for Remedy and have a Writ in the Kings Chancery directed to the Sheriff of the next English County and the Sheriff of Glocester served the Writ as being the next English Sheriff This being the most material the other Errors were also answered and the Judgment was affirmed From this Case we may learn and from no other as I believe at least with so much clearness That the Summons of Inhabitants in Wales and the tryal of an Issue there arising should be by the Sheriff of and in the next adjoyning English County was first ordained by Parliament though the Act be not extant now nor is it conceived how it should be otherwise it being an empty Opinion that it was by the Common Law as is touched in several Books who knew the practice but were strangers to the reasons of it For if the Law had been that an Issue arising out of the Jurisdiction of the Courts of England should be tryed in that County of England next to the place where the Issue did arise not only any Issue arising in any the Dominions of England out of the Realm might be tryed in England by that rule but any Issue arising in any Forreign parts as France Holland Scotland or elsewhere that were not of the Dominions of England might pari
more Books Obj. 3 That by the Statute of 9 E. 3. Pleas of Releases or Deeds dated in Franchises within the Realm shall be tryed where the Action is brought Answ Wales is no Franchise or if it were not within the Realm for the questions concerning a Deed pleaded bearing date there but of Original Process for Causes arising and Tryals of them in the next County adjoyning and not in the County where the Action of a Deed dated in a Franchise of the Realm which do toto coelo differ and concerning Executions and Judgments here to be made in another Dominion The same may be said concerning the Statute of 12 E. 2. when Witnesses to Deeds in Forreign Franchises are to be summoned with the Iury and the Tryal notwithstanding their absence to proceed when the Writ is brought Obj. 4 Presidents of Process issued to the Sheriffs of Wales without a Judicial decision upon Argument are of no moment Many things may be done several ways as Bonds though they have regularly one common form yet they may be in other forms as well Presidents are useful to decide questions but in such Cases as these which depend upon Fundamental Principles from which Demonstrations may be drawn millions of Presidents are to no purpose Besides it is known that Officers grant such Process to one Sheriff or County as they use to another nor is it in them to distinguish between the power of the Court over a Sheriff in Wales from a Sheriff in England especially when they find some Writs of Execution going which are warranted by Acts of Parliament which they know not though they do know Process of Execution in fact runs thither as Capias utlagatum Extents upon Statute which are by Acts of Parliament And that other Mandatory Writs issue thither as well at Common Law as by a particular Clause concerning the Chancellor in the Act of 34 H. 8. c. 26. By the Register upon a Judgment had in the Common Pleas against a Clerk Regist f. 43. B Brevium Judicialium who was after made Archbishop of Dublin in Ireland upon a Fieri Facias issued to execute the Judgment to the Sheriff of Middlesex and his Retorn that he had no Lands or Goods in his Bayliwick but was Archbishop in Ireland upon a Testatum of it in the Common Pleas that he had Lands and Goods in Ireland a Fieri Facias issued in the King's name Justiciario suo Hiberniae to make Execution but it appears not whether this Writ issued from the Common Pleas or especially by the King's Direction out of the Chancery which possibly may be as a special Mandatory Writ of the Kings locum tenens there which varies in stile at the Kings pleasure anciently Justiciario suo Hiberniae at other times Locum tenenti nostro at other times Deputat or Capitaneo generali nostro which stiles are not regularly known to the Officers of the Courts at Westminster And perhaps by special Writs to the chief Officer and the King Execution may be made of Judgments given at Westminster in any of his Dominions which would be enquired of FINIS An Exact and Perfect TABLE TO THE REPORTS and ARGUMENTS OF Sir JOHN VAVGHAN Lord Chief Justice of the Court of Common Pleas. Abatement of Writs See Writs 1. WHere a Writ is brought against an Executor in Debt upon a simple Contract he may abate it 94 2. Judges ought not Ex officio to abate Writs but it must come before them by Demurrer 95 Act of the Party 1. Every act a man is naturally enabled to do is in it self equally good as any other act he is so enabled to do 333 Actions and Actions upon the Case 1. Actions upon the Case are more inferior and ignobler than Actions of Debt 101 2. Actions of the Case are all Actiones Injuriarum contra Pacem and it is not a Debt certain but damages for the breach of the promise that must be recovered in it 101 3. Wheresoever the Debt grew due yet the Debtor is indebted to the Creditor in any place where he is as long as the Debt is unpaid 92 4. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 5. If you will recover any thing against any man it is not enough for you to destroy his Title but you must prove your own better than his 60 6. In life liberty and estate every man who hath not forfeited them hath a property and a right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and punish the wrong-doer 337 7. There are several penal Laws by transgressing of which the Subject can have no particular damage and therefore no particular Action 341 8. All Actions brought against Officers within the Statute of the One and twentieth of K. James must be laid in the proper County 115 116 117 9. Case and not Debt lies for a Solicitor for Soliciting Fees 99 Ad quod dampnum 1. When the King can license without a Writ of Ad quod dampnum he may license if he will whatever the Return of the Writ be 341 345 2. Where the Writ of Ad quod dampnum informs the King better then a Non obstante 356 3. Though there be a Return upon an Ad quod dampnum that it is not ad dampnum yet there must be the Kings license afterwards 341 Administration and Administrator 1. How they are to administer the Intestates Estate 96 2 An Administrator hath a private office of trust he cannot assign nor leave it to his Executor 182 3. An Administrator must take an Oath to make a true accompt 96 4. An Action will not lye against them upon a Tally because it is no good Specialty 100 5. In an Action of Debt upon Bond or Contract brought against him he may confess Judgment if there is no fraud although he hath notice of a former Suit depending 95 100 6. If an Administrator durante minore Aetate brings an Action he must averr the Administrator or Executor to be under the Age of Seventeen years 93 7. The manner of pleading Plene administravit praeter ultra 154 Advowson See Quare Impedit 1. The rights of an Advowson 7 2. Where the Plaintiff and Defendant must alledge Seisin in an Advowson by a former Presentation 8 Agent and Patient 1. In a Quare Impedit both Plaintiff and Defendant are Actors and may have a Writ to the Bishop 6 7 58 Age See Infant Alien 1. The time of the birth is of the Essence of a Subject born for he cannot be a Subject unless at the time of his birth he was under the Kings Liegeance 286 287 2. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament 274 282 3. He that is priviledged by the Law of England to inherit must be a Subject of the Kings 268 in loco 278 286 4. He must be more
Courts upon the insufficiency of the Return only and not for priviledge 154 5. Where a man is brought by Habeas Corpus and upon the Return it appears that he was imprisoned illegally though there is no cause of priviledge for him in the Court yet he shall not be remanded to his unlawful Imprisonment 156 6. The Kings Bench may bayl if they please in all Cases but the Common Bench must remand if the cause of the imprisonment returned is just 157 Heir 1. Children shall inherit their Ancestors without limitation in the right ascending Line and are not inherited by them 244 2. In the collateral Lines of Uncle and Nephew the Uncle as well inherits the Nephew as the Nephew the Uncle ibid. 3. The Heir shall never be disinherited by an Estate given by Implication in a Will if such Implication be only constructive and possible but nor a necessary Implication viz. such an Implication that the Devisee must have the thing devised or none else can have it 262 263 268 4. He that is priviledged by the Law of England to inherit there must be a Subject of the Kings 268 5. The four several ways that a man born out of England may inherit in England 281 6. How long the Heir shall continue in Ward upon the Devise of his Father and a full Exposition of the Statute of 12 Car. 2. 178 7. The Heir of the Conizee of a Fine only shall take nothing by Discent 41 Husband and Wife See Baron Feme  Imprisonment See Title Habeas Corpus  Incest 1. INcest was formerly of Spiritual Conuzance 212 2. The primitive Christian Church could punish incestuous marriages no other way than only by forbidding them communion with them 313 3. The Judges have now full conuzance of what Marriages are incestuous and what not 207 209 210 4. Among the Hebrews there was no Divorce for Incest but the Marriage was void and the Incest punished as in persons unmarried ibid. Incumbent 1. One Incumbent may sue a Writ of Spoliation against the other where the Patrons right comes in question 24 2. If an Incumbent with Cure take another Benefice with Cure the first is void and the Patron may present 21 3. A Bishop may be an Incumbent after Consecration 24 4. The Kings Confirmation of the Commendam transfers no right into the Incumbent 26 5. Where the Incumbent doth not read the Articles according to the Statute he stands ipso facto deprived 131 132 6. And if he had not subscribed the Articles he had been never Incumbent 133 Infant 1. Where the Gardianship of an Infant is devised since the Statute of 12 Car. 2. what passes thereby together with a full Exposition of that Statute from 177 to 186 2. He is capable at Seventeen years of Age of taking Administration in his own name 93 Institution and Induction 1. By Induction into the Rectory the Parson is seised of all the possessions belonging to his Rectory 198 2. Institution and Induction is a good Title until a better appears 7 8 3. Where after Institution and Induction the party inducted may bring his Ejectment and shall not be put to his Quare Impedit 129 130 131 Iointenants 1. There can be no Jointenants in Occupancy 189 2. They may release or confirm to each other and thereupon those priviledges which did belong to both shall pass to one of them 45 Ireland See Alien Error 1. Ireland is a conquer'd Kingdom and appears so by the express words of an Act of Parliament there 292 2. Though Ireland hath its own Parliament yet it is not absolute sui Juris ibid. 3. What things the Parliament of Ireland cannot do ibid. 4. When Ireland received the Laws of England 293 298 5. What Laws made in the Parliament of England are binding in Ireland 293 Issue 1. No Issue can be joyned of matter in Law 143 Iudges of Iustices 1. Where the Law is known and clear although it is unequitable and inconvenient yet Judges must adjudge it as it is 37 285 2. But where it is doubtful and not clear there they must Interpret it to be as is most consonant to equity 38 3. Defects in the Law can only be remedied in Parliament 38 285 4. Judges must judge according as the Law is not as it ought to be but if inconveniences necessarily follow out of the Law the Parliament only can cure them 285 5. An Opinion given in Court if not necessary to the Judgment given upon Record is no Judicial Opinion no more than a gratis dictum 382 6. But an Opinion though erroneous concluding to the Judgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer 382 7. When the King hath constituted any man a Judge his Ability Parts and Fitness for the place are not to be reflected upon or censured by any other person being allowed by the King who only is to judge of the fitness of his Ministers 138 8. We must not upon supposition only admit Judges deficient in their Office for so they should never do right Nor on the other side must we admit them unerring in their places for so they should never do any thing wrong 139 9. Judges have in all Ages been complained of and punished for giving dishonest and corrupt judgments 139 10. A Judge cannot Fine and Imprison a Jury for giving a Verdict contrary to his Directions 146 147 148 149 11. Judges ought not to abate Writs ex officio 95 97 12. The Judges direction to the Jury ought to be upon Supposition and not Positive viz. if you find the Fact thus then it is for the Plaintiff if you find it thus then for the Defendant 144 13. The Judge can never direct what the Law is in any controverted matter until he first knows the Fact 147 Iudgment See Error 1. A Judgment is the Act of the Court and compulsory to the Defendant 94 95 2. Where the Plaintiff makes it appear to the Court that the Defendants Title is not good but doth not set forth a good Title for himself the Court shall never give Judgment for him 60 3. An ill Declaration will not avoid the Judgment it only makes it erroneous 93 94 4. An erroneous Judgment is a good barr for an Executor in an Action brought against him 94 5. A Judgment given in England ought not to be executed in Wales 398 6. In a Quare Impedit where the Bishop disclaims and the Parson loseth by Default there shall go a Writ to the Bishop Non obstante Reclamatione to remove the Incumbent but with a Cessat Executio until the Plea is determined between the Plaintiff and Patron 6 Iurisdiction See Courts Prohibition 1. When the Question is of a Jurisdiction in a Dominion belonging to England how to be determined 418 2. Where ever a Debt grows due yet the Debtor is indebted to the Creditor
usually letten Lands which have been twice letten are within this proviso 33 2. Of Lands which have at any time before been usually letten that which was not in Lease at the time of the proviso nor twenty years before is out of the power 34 Possession 1. He that is out of possession if he brings his Action must make a good Title 8 2. Where one man would recover any thing from another it is not sufficient to destroy the Title of him in possession but you must prove your own to be better than his 58 60 3. When a man hath gotten the possession of Land that was void of a Proprietor the Law casts the Freehold upon him to make a sufficient Tenant to the Precipe 191 4. Prior possession is a good Title against him who hath no Title at all 299 5. A separate possession of one and the same Land can never be in two persons at one and the same time 42 47 6. By a Fine the Estate may be changed although the possession is not changed 42 43 7. The Conuzee of a Rent granted by Fine to Uses cannot have any actual Seisin nor be in possession since the 27 H. 8. 49 Quare Impedit 1. WHere in a Quare Impedit the Plaintiff and Defendant are both actors 6 7 8 58 2. The Plaintiff in his Count must alledge a presentation in himself or in those from whom he claims 7 8 17 57 3. So likewise must the Defendant because they are both Actors 7 8 57 60 4. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 60 5. Where the King or a common person in a Quare Impedit sets forth a Title which is no more than a bare Suggestion he shall not then forsake his own and endeavour to destroy the Defendants Title 61 6. In all Quare Impedits the Defendants may traverse the presentation alledged by the Plaintiff if the matter of Fact will bear it 16 17 7. But the Defendant must not deny the presentation alledged where there was a presentation 17 8. Where the Presentation and not the Seisin in gross of the Advowson or Appendancy is traversable 10 11 12 13 9. When the Seisin in gross or appendancy is traversable 12 10. An Incumbent is elected Bishop and before Consecration he obtains a Dispensation in Commendam Retinere he is afterwards consecrated and dyes the Patron shall present and not the King 18 19 20 21 22 23 24 25 26 27 11. If a man who hath a Benefice with Cure accepts of another without Dispensation or Qualification the first Benefice is void and the Patron may present and his Clerk who is admitted instituted and inducted may bring his Action of Trespass or Ejectment 129 130 131 12. All Quare Impedits for disturbance to Churches within the Lordships Marchers of Wales shall be brought in England in the next adjoyning County 409 410 13. Judgment with a Cessat Executio upon the Bishops Disclaimer 6 14. Where the Parson Patron and Ordinary are sued in a Quare Impedit and the Ordinary disclaims and the Parson looseth by default the Plaintiff shall have Judgment to recover his presentation and a Writ to the Bishop to remove him with a Cessat Executio until the plea is determined between the Plaintiff and Patron ibid. Rebutter See Title Warranty 1. WWO may Rebut 384 2. The difference between a Rebutter and Voucher 385 386 387 3. Whether the Tenant in possession may Rebut without shewing how he came to the possession 385 4. Whether a Rebutter may be when the warranty is determined 387 5. How many several sorts of persons may Rebut and how those that come in ex institutione dispositione legis may Rebut 390 391 392 Recital 1. The Recital of one Lease in another is not a sufficient proof that there was such a Lease as is recited 74 75 Recognizance See Title Statutes 8. 1. The Chancery and all the Courts at Westminster had before the Statute of Acton Burnel and still have power to take Recognizances 102 2. So likewise may every Judge take a Recognizance in any part of England as well out of Term as in Term 103 3. Where a Recognizance taken before the Chief Justice of the Common Pleas is in the nature of a Statute Staple 102 4. Execution upon such Recognizances are not as upon Statutes but by Elegit ibid. Record 1. How a Record is to be pleaded 92 Recovery and Common Recovery See Title Statutes 13. See Voucher Warranty 1. Where a Recovery against its nature shall be a Forfeiture because it is taken as a common Conveyance 51 2. A Rent may arise out of the Estate of Cestuy que use upon a Recovery which was to have risen out of the Estate of the Recoverer 51 Release 1. Joyntenants may release and confirm to each other 45 Remainder See Title Warranty 1. A Remainder must depend upon some particular Estate and be created at the same time with the particular Estate 269 2. A Remainder cannot depend upon an absolute Fee simple 269 367 3. If Land is devised to A. and his Heirs as long as B. hath Heirs of his body the Remainder over this is good in a Devise not as a Remainder but as an Executory Devise 270 4. A Remainder in Fee upon a Lease for years 46 5. The Statute de Donis restrains not the warranty of Tenant in Tayl from barring him in the Remainder in Tayl by his warranty descending upon him 367 377 Rent 1. By the Common Law there ought to be an Attornment to enable the Distrainor to make a good Avowry upon a Distress for Rent 39 2. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost ibid. 3. An Estate in a Rent-charge may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 4. The power to distrain may be lost by a perpetual Union Suspension pro tempore Dying without Heir Granting of it upon Condition and by a granting over 39 5. The several things that a Rent is subject to 40 6. Rent is granted pur auter vie the Grantee dies the Rent is thereby determined 200 201 7. Where Rent is arrear and afterwards it is granted over in Fee and an Attornment thereupon here the Grantor hath lost his arrears and cannot afterwards distrain 40 8. A Rent may arise out of the Estate of Cestuy que use upon a Recovery 52 9. There can be no Occupancy of a Rent 200 Reversion See Title Warranty 1. By the grant of a Reversion Lands in possession will not pass but by the grant of Lands a Reversion will pass 83 2. If Tenant for life alien with warranty which descends upon the Reversioner such alienation with warranty is not restrained by the Statute de Donis 370 3. An alienation with warranty which shall hinder the Land from reverting to the Donor or his
no such Case in 38 E. 3. f. 26. but the Case intended is 38 E. 3. f. 21. and he quotes the folio truly in his Littleton But the Case is not That an Assignee may rebutt or have benefit of a warranty made to a man and his Heirs only but that a warranty being made to a man his Heirs and Assigns the Assignee of the Heir or the Assignee of the Assignee though neither be Assignee of the first Grantee of the warranty shall have like benefit of the warranty as if he were Assignee of the first Grantee which hath been often resolv'd in the old Books To the same purpose he cites a Case out of 7 E. 3. f. 34. 46 E. 3. f. 4. which doth but remember that of 7. as adjudg'd That the Assignee of Tenant in tayl might rebutt the Donor whence he infers as before that the Tenant in possession might rebutt without any right to the warranty But the Inference holds not from that Case The Case of 7 E. 3. was That Land was given in tayl and the Donor warranted the Land generally to the Donee his Heirs and Assigns the Donee made a Feoffment in Fee and died without Issue and the Donor impleading the Feoffee was rebutted because he had warranted the Land to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee of the Donee and therefore rebutted not because he had a bare possession But this Judgment of 7 E. 3. Sir Edward Coke denies and perhaps justly to be Law now because the Estate tayl being determin'd to which the warranty was first annex'd the whole warranty determin'd with it But however the Case no way proves what it is alledg'd for in Lincoln Colledge Case That a man may rebutt without ever shewing the warranty extended to him for the Feoffee did in that Case shew it So in the Case 45 E. 3. f. 18. the Feme who rebutted shew'd she was Grantee of the warranty To this may be added That what is delivered as before in Lincoln Colledge Case is neither conducing to the Judgment given in that Case nor is it any Opinion of the Judges but is Sir Edward Coke's single Opinion emergently given as appears most clearly in the Case To conclude When the Feoffees were seis'd to the use of William Vescy for his life and after to the use of the Defendant his wife for her life and after to the use of the right Heirs of William Vescy And when by Operation of the Statute of 27 H. 8. the possession is brought to these uses the warranty made by William Vescy to the Feoffees and their Heirs is wholly destroy'd For if before the Statute the Feoffees had executed an Estate to William for life the Remainder to his wife for life the Remainder to his right Heirs The warranty had been extinguish'd by such Execution of Estate and releas'd in Law for it could be in none but in William and his Heirs who could not warrant to himself or themselves By Littleton Sect. 743. for his Heirs in such Case take not by Purchase but Limitation because the Freehold was in him with a Remainder over to his right Heirs and so hath as great an Estate in the Land as the Feoffees had and then the warranty is gone by Littleton Litt. Sect. 744. And now the Statute executes the possession in the same manner and the warranty is in none for the time present or future but extinct If the warranty had been to the Feoffees their Heirs and Assigns it might have been more colourably question'd Whether the mean Remainder were not an Assignee of the Feoffees and so to have benefit of the warranty but the warranty being to the Feoffees and their Heirs only no Estate remaining in them no Assignee can pretend to the warranty 2. William Vescy could by no possibility ever warrant this Estate to the Defendant during his life and where the warranty cannot possibly attach the Ancestor it shall never attach the Heir as by Littleton's Case If a man deviseth Lands in Fee to another with warranty for him and his Heirs his Heirs shall not be bound to the warranty because himself could never be And though in that Case the Estate to be warranted commenc'd after the death of the Warranter and here the Remainder to the wife is in being before his death yet the reason differs not for himself could no more warrant this by any possibility than that and his Heir might as equally warrant the Estate devis'd as this Next Justice Jones in Spirt and Bences Case cites a Case 7 Eliz. the same with this Resolution resolved in the Common Pleas That the mediate Remainder could not be warranted In this Case if the Feoffees before the Statute had either voluntarily or by coercion of the Chancery after the death of the first Cestuy que use for life executed the Estate of the mean Remainder such person in Remainder could have no benefit of the warranty being but an Assignee of the Feoffees because the warranty was only to them and their Heirs No more can the person in Remainder here whose Estate is executed by the Statute be warranted more than if such Estate had been executed by the Common Law There are another sort of persons who may rebutt and perhaps vouch who are neither Heirs nor formally Assignees to the Garrantee but have the Estate warranted dispositione instituto Legis which I conceive not to differ materially whether they have such Estate warranted by the Common Law or by Act of Parliament The first of this kind I shall name Ass p. 9. 35 is Tenant by the Courtesie who as was adjudg'd 35 Ass might rebutt the warranty made to his wives Ancestor yet was neither Heir nor formal Assignee to any to whom the warranty was granted nothing is said in the Book concerning his vouching but certainly the wives Heir may be receiv'd to defend his estate if impleaded by a stranger who may vouch according to the warranty or may rebutt as the Case of 45 E. 3. f. 18. is But this difference is observable also where such a Tenant rebutts it appears what claim he makes to the warranty and so the Inconveniences avoided which follow a Rebutter made upon no other reason than because he who rebutts is in possession of the Land warranted A second Tenant of this kind is the Lord of a Villain 22 Ass p. 37. and therefore the Case is 22 Ass That Tenant in Dower made a Lease for life to a Villain which in truth was a forfeiture for making a greater Estate of Freehold than she had power to make and bound her and her Heirs to warranty the Lord of the Villain entred upon the Land in her life time and before the warranty attach'd the Heir who had right to enter for the forfeiture the Mother died and the Heir entred upon the L. of the Villain who re-entred and the Heir brought an Assise The L. of the Villain
pleaded the warranty and that the Heir if a stranger had impleaded him was bound to warrant the Estate and therefore demanded Judgment if the Heir himself should implead him 1. It is there agreed if the warranty had attach'd the Heir before the Lords entry the Heir had been bound but quaere 2. By that Book it seems the Lord impleaded by a Stranger might have vouch'd the Heir if the warranty had attach'd him before the Lords entry But in this Case it appears the Lord was no formal Assignee of the Villains for this warranty must be as to an Assignee for the Estate warranted was but for life and the Lords Estate was only by order of the Law A third Case of this nature is Where the Ancestor granted Lands to a Bastard with warranty but how far the warranty extended as to the Heirs or Heirs and Assigns of the Bastard appears not in the Case the Bastard died without Issue and consequently without Heir the L. by Escheat entred upon whom the Heir entred the warranty of his Ancestor having not attach'd him before the Bastards death for it seems this was in a Case where the Heir might have entred in his Ancestors life time so avoided his warranty as in the former case of the L. of a Villain by the Book the warranty having not attach'd him during the Bastards life the Lord by Escheat could have no benefit of it but if it had attach'd him he might ut videtur In this Case if the warranty were to the Bastard and his Heirs only it determined he dying without Issue and then there could be no Rebutter or Voucher by the Lord by Escheat if the warranty had attach'd the Heir but if it were to him his Heirs and Assigns then the Lord whose title is by the Act and Disposition of the Law and not as Assignee in the per had notwithstanding the benefit of this warranty quod nota These Cases are mentioned in Lincoln Colledge Case and in Spirt and Bences Case in Cr. 1. and in both places admitted for Law Nor seems this very unreasonable That the warranty being an incident to the Estate warranted should accompany it where the Law dispos'd the Estate and Land warranted to all intents 2. In many Cases the Law disposing the Estate if the warranty attended it not the disposition made by the Law were in vain for without the warranty the Estate may be necessarily avoided Such persons who come to the Estate dispositione Legis are not properly in in the post but they modally have the Estate by consent both of the Warranter and Garrantee because they have it by the Act of Law Statute or Common to whose dispose every man is as much consenting and more solemnly than he is to his own private Deed. And after this way if the two last Cases be Law the Cestuy que use having his Estate by operation and appointment of the Statute of Uses of 27 H. 8. may have the benefit of the warranty attending the Estate though he be no formal Assignee or Heir to the Feoffees to use Many other Estates are of this kind as Tenant in Dower if endowed of all the Land warranted An Occupant Tenants by the Statute of 6 R. 2. c. 6. where the Feme consents to the Ravisher Tenant by 4 5 P. M. because the ward consented to her taking away without the Guardians consent Lands warranted which after become forfeited to the King or other Lords c. Quaere in the Cases of 22 Ass p. 37. 29 Ass p. 34. Whether notwithstanding the warranty had descended upon the Heir while the Lands were in the possession of the Villain in the first Case and of the Bastard in the second Case before any entry made by either Lord the Lands could have rebutted or vouched by reason of those warranties being in truth strangers to the warranty and not able to derive it to themselves any way But if after the warranty descended upon the Villain or Bastard the Villain or Bastard had been impleaded by the Heir and had pleaded the warranty against the Heir and had Judgment thereupon by way of Rebutter then the Lords might have pleaded this Judgment as conclusive and making the Villains Title or Bastard good against the Heir and the Heir should never have recover'd against the Lords And this seems the meaning of the Book 22 Ass p. 37. if well consider'd Though in Spirt and Bences Case no such difference is observ'd Caetera desiderantur The Court was in this Case divided viz. The Chief Justice and Justice Archer for the Demandant and Justice Wylde and Justice Atkins for the Tenant CONCERNING PROCESS Out of the COURTS at WESTMINSTER INTO WALES Of late times and how anciently Memorandum These Notes following were all wrote with the proper hand of the Chief Justice Sir John Vaughan and intended to be methodised by him in order to be delivered in Court A Man taken upon a Latitat in England 10 Jac. Bolstrode part 2. f. 54 55. Hall and Rotherams Case puts in two Welch men for his Bayl Judgment passing against him it was a Question Whether after a Capias ad Satisfaciendum issued against the Principal who was not to be found Process might issue into Wales which must be by Scire Facias first against the Bayl whereupon Mann the Secondary of the Kings Bench informed the Court that it had been so done in like Cases many times But the Court was likewise informed that Brownloe Chief Pronotary of the Common Pleas affirmed they did not then use to send such Process into Wales but only Process of Outlawry But Mann affirming that their Course was otherwise in the Kings Bench the Court awarded Process into Wales against the Bayl and said If the parties were grieved they might bring their Writ of Error 1. This Award of the Kings Bench hath no other Foundation to justifie it than Mann 's the Secondaries Information That the like had been often done which was his own doing possibly and never fell under the Consideration of the Court. 2. The Court weighed it no more than to say The parties grieved might have a Writ of Error which by the way must be into the Parliament for it concerned the Jurisdiction of the Court which the Act of 27 Eliz. for Errors in the Exchequer Chamber excepts and upon that ground any injustice might be done because the party wronged may have a Writ of Error 3. Brownloe the Chief Pronotary of the Common Pleas and a most knowing man affirm'd no such Process issued thence into Wales and but only Process of Outlawry So as this awarding of Process into Wales upon the usage of that Court affirmed by Mann is counter'd by the contrary usage of the Common Pleas affirmed by Brownloe Therefore that Book and Authority is of no moment to justifie the issuing of a Scire facias into Wales 11 Jac. Bolstrode part 2. f. 156 157. Bedo v. Piper The next Case