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
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
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
14 Jac. B.R. Robson and Francis Case which avoids the Exception Now as to the Second Question Admitting the Iudgment in London as pleaded be no sufficient barr of the Plaintiffs Action or if it be that the Recognizance as pleaded is no sufficient barr For if those will barr there is no further Question If then Iudgment ought to be for the Plaintiff upon the Defendants Plea to the whole matter And I conceive it ought not I shall agree That if the Defendant plead several Judgments against the Intestate or himself as Administrator and Statutes entred into by the Intestate and concludes his Plea That he hath not nor at any time had assets in his hand of the Intestates Estate praeterquam bona cattalla sufficient to satisfie those Judgments and Statutes and averrs they are unsatisfied and which assets are chargeable with the said Judgments and Statutes that this is a good Plea in barr of the Plaintiffs Action and so it is admitted to be in Meriel Treshams Case Meriel Treshams Case 9. Rep. and the Plaintiff must reply That he hath assets ultra what will satisfie those Judgments and Statutes as is there agreed But if the Plaintiff reply That any one of those Judgments was satisfied by the Intestate in his life time saying nothing to any of the rest And the Defendant demurr upon this Replication the Plaintiff must have Iudgment for the Plea was false and the falshood detrimental to the Plaintiff and beneficial to the Defendant for having pleaded he had no more assets than would satisfie those Iudgments one of them being satisfied before he hath confessed there is more assets than will satisfie the other Iudgments by as much as the Iudgment already satisfied amounts unto which would turn to his gain and the Plaintiffs loss if his demurrer were good Turners Case 8. Rep. But to plead That he hath not bona cattalla praeterquam bona quae non attingunt to satisfie the said Judgments and Statutes is not good for the incertainty for if the Judgments and Statutes amount to 500 l. 20 l. are bona quae non attingunt to satisfie them so is 40 l. so is 100 l. so is 200 l. and every Sum less than will satisfie so as by such Plea there is no certain Issue for the Iury to enquire nor no certain Sum confess'd towards the payment of any Debt as is well resolv'd in Turners Case So if a man pleads he hath not assets ultra what will satisfie those Iudgments the Plea is bad for the same reason for 20 l. is not assets ultra that will satisfie them nor 40. nor 100. nor 200. nor doth that manner of pleading confess he hath assets enough to satisfie As to say I have not in my pocket above 40 l. is not to say I have in my pocket 40 l. But in this Case the Defendant hath pleaded payment of several Bonds Bills and Judgments and pleads one Recognizance of 2000 l. and one Judgment of 7000 l. wholly unsatisfied and concludes his Plea with plene administravit And that he had not die impetrationis brevis nec unquam postea aliqua bona seu cattalla of the Intestates in manibus suis administranda praeterquam bona catalla ad valentiam separalium denariorum summarum per ipsum sic ut praesertur solutarum in discharge of the said several Judgments Bonds and Bills Et praeterquam alia bona catalla ad valentiam decem solidorum quae executioni recognitionis praedict judicii praedict per praefat Car. Cornwallis recuperat onerabilia existunt Now upon this Plea if Allington's Iudgment of 2670 l. or the Statute of 2000 l. or both be avoided yet the Plaintiff hath no right to be paid until the Iudgment of 7000 l. be so satisfied and that some assets remain after the satisfaction of it in the Administrators hands for before the Plaintiff hath no wrong nor the Administrator doth none nor hath any benefit by not satisfying the Plaintiff That spungy Reason that the Defendants Plea is all intire and therefore if any part be false as either in that of Allington's Iudgment or the Recognizance the Plea is bad is not sense for if the falshood be neither hurtful to the Plaintiff nor beneficial to the Defendant why should the Plaintiff have what he ought not or the Defendant pay what he ought not Suppose the Defendant pleaded a Iudgment obtain'd against the Intestate or himself and that the Intestate or himself were married at the time of the Iudgment obtain'd which in truth was false for that the one or the other was unmarried at that time his Plea being otherwise good Should this falsness cause the Plaintiff to recover surely no for the falsness is not material nor any way hurtful to the Plaintiff Besides the usual pleading as appears both by Turners and Treshams Case is that the Plaintiff must avoid all payments pleaded in barr until some assets appear in the Administrators hands remaining and then he is to have Iudgment Much noise hath been about this Case and without Reason as I suppose though there were no precedent Iudgment in the point but there is a Judgment per Curiam An Action of Debt was brought against Executors 9 E. 4. f. 12. b. who pleaded a former Recovery against them of 200 l. and Execution issued and pleaded likewise another Recovery against them of 100 l. and travers'd that they had no assets but to satisfie that Execution of 200 l. the Plea was adjudged good by the Court and that the Plaintiff must reply They had assets in their hands ultra the said 200 l. and ultra the said 100 l. for before the 100 l. were also satisfied the Plaintiff was not intitled to his Debt as the Book is Hill 18 19 Car. II. C. B. Thomas Price is Plaintiff against Richard Braham Elizabeth White Elianor Wakeman and Richard Hill Defendants In an Action of Trespass and Ejectment THE Plaintiff declares That one Henry Alderidge the First of November 18 Car. 2. at the Parish of St. Margarets Westminster demis'd to the Plaintiff and his Assigns an Acre of Land with the Appurtenances in the Parish of St. Margarets aforesaid Habendum from the Thirtieth of October then last past for the term of Five years next ensuing by virtue whereof he entred and was possessed untill the Defendants afterwards the same day entred upon him and did Eject him to his damage of 20 l. To this the Defendants pleaded That they are not Culpable Special Verdict is found By which it is found That the Defendants are not Culpable of Entry and Ejectment in the said Acre excepting a piece thereof containing One hundred and Eighty Foot thereof in length and Eight and twenty Foot in breadth And as to that piece they find that the same time out of mind was a Pool until within Twenty years last past during which Twenty years it became fill'd with Mudd They find That before
in time is 11 Jac. in Debt upon a Bond the Action was laid in the County of Hereford upon Nil debet pleaded the Plaintiff had Judgment and Execution and a Writ to the Sheriff of the County of Radnor to levy Execution who did not but made his Retorn That breve Domini Regis non currit there Qu. How an Action of Debt could be laid in Hereford which must be by Original unless the party were in Custodia Mariscal and declared upon a Bond in the County of Hereford Coke the Chief Justice said before the Statute of 27 H. 8. c. 26. which annexed Wales and England doubt might have been in that Case but since the Statute 27 H. 8. it was clear and grounded himself upon a Case in 13 E. 3. of which more anon In this Case the Court did agree That the Writ of Execution did well go into Wales and amerced the Sheriff 10 l. for his had Retorn In this Case Dodridge agreed with Coke and said If the Law should be otherwise all the Executions in England would be defeated This was a Resolution upon some Debate among the Judges of the Court but upon no Argument at Barr for any thing appearing Per Doderidge If Debt be brought against one in London 16 Jac. B.R. Croke 484. and after the Defendant removes and inhabits in Wales a Capias ad satisfaciendum may be awarded against him into Wales or into any County Palatine and this was his Opinion exactly in the former Case But as the course of the Common Pleas was alledged to be contrary to what Mann said was used in the King Bench in the Case of Hall Rotheram 10 Jac. before cited so It was in the same year 11 Jac. wherein the Kings Bench resolved That Execution did well issue to the Sheriff of the County of Radnor of a Recovery in Debt in the Kings Bench and fin'd the Sheriff for his Retorn that breve Domini Regis non currit in Wallia Resolved otherwise in the Common Pleas 11 Jac. Godbolt f. 214. and that by the whole Court That a Fieri facias Capias ad Satisfaciendum or other Judicial Process did not run into Wales but that a Capias utlagatum did go into Wales and as Brownloe Pronotary then said that an Extent hath gone into Wales And it is undoubtedly true as to the Capias utlagatum and Extent but as to all other Judicial Process into Wales upon Judgments obtained here between party and party hitherto there is nothing to turn the Scale The Judgment of the Court of Common Pleas being directly contrary to that of the Kings Bench in the same age and time Vpon occasion of a Procedendo moved for to the Council of the Marches who had made a Decree Bendloes Rep. 2 Car. 1. Term. Mich. f. 192. Beatons Case That some persons living in the English Counties where they at least exercised Jurisdiction should pay monies recovered against him at a great Sessions in Wales he having neither Lands or Goods nor inhabiting in Wales having obtained a Prohibition to the Council of the Marches the Court of the Kings Bench was against the Procedendo No time is mentioned when this Resolution cited by Jones was so as i◠probably preceded the Resolutions of the Judges in Crooke And Justice Jones cited a Case where Judgment was given in the great Sessions of Cardigan against a Citizen of London who then inhabited there and after removed his Goods and Person thence that upon great deliberation it was resolved A Certiorari should issue out of the Chancery to remove the Record out of Wales and that then it should be sent by Mittimus into the Kings Bench and so Execution should be awarded in England of the Judgment had in Wales If this were so for which there is no other Authority but that Justice Jones cited such a Case not mentioning the time I agree it would seem strange that a Judgment obtained in Wales should by Law be executed in England and that a Judgment obtained in England could not be executed in Wales Cr. 2 Car. 1. f. 346. But in the same year in Easter Term before at an Assembly of all the Iustices and Barons it was resolved where Judgment was given in Debt at the great Sessions in Wales against a Defendant inhabiting there and the Defendant dying intestate one who inhabited in London taking Administration This Case is in the point for a Scire facias to have Lands in Wales must be against the Heir inhabiting in England but having Lands in Wales that Execution could not be in Wales because the Administrator inhabited not there nor a Certiorari granted out of the Chancery to remove the Record that so by Mittimus it might be sent to the Kings Bench or Common Pleas to take forth a Scire facias upon it to have Lands out of Wales or Goods in the Administrators hands liable to it there This was the Resolution of all the Justices and Barons for these Reasons First by this way all Judgments given in London or other inferior Jurisdictions would be removed and executed at large which would be of great inconvenience to make Lands or Goods liable to Execution in other manner than they were at the time of the Judgment given which was but within the Jurisdiction Secondly It would extend the Execution of Judgments given in private and limited Jurisdictions as amply as of Iudgment given at the Kings Courts at Westminster By this Resolution a Judgment given in Wales shall not be executed in England out of their Jurisdiction of Wales and à pari a Judgment given in England ought not to be executed in Wales which is out of the Jurisdiction of the English Courts more than a Judgment given in the Kings Bench or Common Pleas ought to be executed in Ireland or the Islands which are out of their Jurisdiction equally and upon the same grounds for any thing deducible from these Cases which was never pretended that it could be done And by that Case of Coke 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 Nor is it material to say the Judgments then given are of no effect no more than to say Judgments given in the Kings Courts are of no effect against an Irish-man Dutch-man or Scotch-man that hath no Lands or Goods in England liable to Execution by that Judgment For the Plaintiff commencing his Suit ought to be conuzant what benefit he might have from it Nor are Presidents of Fact which pass sub silentio in the Court of Kings Bench or Common Pleas in such Cases to be regarded For Processes issue out of the Offices regularly to the Sheriffs of the County whereupon the Testator the Person Goods or Lands are said to be without distinction of places within or without the Jurisdiction
put shorter than as it hath been open'd to be upon the Record It being a history of several Presentations to the Vicaridge of Burton Basset and of several suppos'd Titles so to present in the persons who presented The Questions therefore in this Case do arise from the causes of the Plaintiffs demurring to the Defendants Plea which as hath been insisted on are two 1. The first is That in a Quare Impedit Plaintiff and Defendant are both Actors and either of them as their right happens to fall out may have a Writ to the Bishop to admit his Clerk That therefore either of them must make out a sufficient Title For it will be unreasonable That a man should have a Writ to the Ordinary to admit his Clerk who hath made no Title appear to the Court why it should be granted him That the Law is clear the Plaintiff in a Quare Impedit must in his Count alledg a Presentation in himself or those from whom he claims and that therefore the Defendant should likewise so do But in this Case the Defendant in his Plea hath alledged no Presentation in any from whom he claims or in himself 2. The second cause of Demurrer insisted on is That the Defendant hath by his Plea traversed the appendency alledged in the Plaintiffs Count of the third part of the Advowson of the Vicaridge of Burton Basset to the third part of the Mannor and third part of the Rectory of Burton Basset whereas he ought to have travers'd the Presentation alledged by the Plaintiff in the Lord Wootton by whom the Plaintiff claims and not the appendency And divers Authorities have been pretended that so is the Law 1. As to the first cause of Demurrer It is true that in a Quare Impedit both Plaintiff and Defendant may be Actors and either have a Writ to the Bishop as the right falls out to be But it is not true that both are always Actors in a Quare Impedit For if the Defendant hath presented his Clerk and he be admitted instituted and inducted before the Quare Impedit brought the Defendant hath then no cause to have a Writ to the Bishop for the doing of that which is already done and consequently in such Case the Defendant is no Actor but a bare Defendant When a man hath presented and his Clerk is instituted and inducted he is at the end of his work and hath no more to do than to keep what he hath gotten for thereby he hath a full possession which is Title sufficient if there be not a better But the Plaintiff who is to recover that which he hath not must shew a good Title before he can recover or he shall never avoid the Defendants possession by shewing no Title or an insufficient which is the same with none It can be neither Law nor Common Reason for the Plaintiff to tell the Defendant you have no good Title and thence to conclude therefore I have The Plaintiff must recover if at all by his own strength and not by the Defendants weakness as is well urg'd and clear'd in Digbies and Fitzherberts Case in the Lord Hobart The Defendant hath alledged in his Plea a Title pro forma and that he hath presented by reason thereof and that his Clerk is instituted and inducted which is sufficient for the present and future time if no better Title be oppos'd to it without alledging any other Presentation in himself or any from whom he claims But if the Defendant were out of possession as the Plaintiff is he must then make out a good Title as the Plaintiff now must or else the Defendant should never have a Writ to the Bishop to admit his Clerk and in such Case only it holde true That the Defendant is Actor as well as the Plaintiff And in such Case he is to alledg a Seisin of the Advowson as the Plaintiff must in himself or those from whom he claims which can never be done without alledging a former Presentation that being the only actual Seisin of an Advowson for the cause why he should present to the present vacancy So as the not alledging a former Presentation will be no objection to the Defendants Title besides the Plaintiff hath alledg'd a Presentation both in his Ancessor Sir Thomas Temple of Reignalds and in himself of Manfell for him but I make no account of that for if the Defendant will take advantage of a Title admitted him by the Plaintiff he must take it as the Plaintiff gives it which in this Case the Defendant doth not For the Plaintiff by his Count makes the Defendants Ancestor and himself seis'd in their Demesne as of Fee of 2 Parts of 3 of the Mannor of Burton Basset and of a third part of the Advowson of the Vicaridge of Burton Basset as appendant to the said 2 Parts But the Defendant by his Plea saith he was seised in Fee of 2 Parts of 3 of the said Mannor and of the intire Advowson of the Vicaridge as appendant to the same 2 parts and so presented which is another Title than that admitted by the Plaintiff 2. For the 2 cause of Demurrer which is a point of more difficulty I take it for Law and shall accordingly prove it That when the Defendant traverseth any part of the Plaintiffs Count or Declaration in a Quare Impedit it ought to be such part as is both inconsistent with the Defendants Title and being found against the Plaintiff doth absolutely destroy his Title for if it doth not so however inconsistent it be with the Defendants Title the Traverse is not well taken To prove this I shall make use of 2 Cases urg'd at the Bar for the Plaintiff but rightly understood are fully against him The first is 10 H. 7. f. 27. 10 H. 7. f. 27. in a Quare Impedit the Plaintiff declared that he presented such a one his Clerk who was admitted instituted and inducted and after the Church became void and he ought to present the Defendant pleaded his Ancestor was seis'd of a Mannor to which the Advowson was appendant and presented and that the Mannor descended to him and that the Church being void he presented and traversed absque hoc that the Advowson is in gross It was adjudged that the Defendant ought to have traversed the Presentation and not the Seisin of the Advowson in gross Whence it was inferr'd that in the present Case the Presentation alledg'd ought by like reason to have been traversed and not the appendency for traversing the appendency in this Case differs not from traversing the Seisin in gross in that Case But the reason of that Iudgment when rightly understood is very clear 1. The Plaintiff in the Quare Impedit as the Case appears in the book did not declare that he was seis'd of the Advowson in gross and presented though perhaps if the Original Declaration did appear it might be he did so declare but declares that he presented and his Clerk was
the Plaintiff entitle himself to an Advowson as appendant to a Mannor and sheweth a presentment as appendant for so are the words and the Defendant shews another Presentment without that that the Advowson is appendant this Traverse is good for if it be not appendant as the Plaintiff declares it is sufficient to destroy his Declaration and so there both are traversable but otherwise as the Case is here viz. the principal Case first cited I conceive the meaning clearly to be that in the principal case the Seisin in gross of the Advowson alledged in the Declaration was not traversable but the presentation which might be by Vsurpation and made a good Title though the Plaintiff were not seised in gross of the Advowson But if the Plaintiff declare the Advowson to be appendant to a Mannor and withal sets forth in his Declaration the Letters of Presentation to the Church as appendant there the Defendant may traverse either the appendency or the Presentation for though the Advowson were appendant yet if the Plaintiff presented not he had no Title Whence I infer that if the Plaintiff had only counted a Seisin of the Mannor to which the Advowson was appendant without shewing the presentment to be to the Church by vertue of the appendency the traverse of the appendency had not been good but it must have been of the Presentation which might have been by Usurpation notwithstanding the alledging barely of the appendency as is resolved before in the point in the Lord Buckhursts Case in Anderson and in the principal Case of 10 H. 7. But when the Count is of the appendency of the Advowson and also of the Presentation to it as appendant there there could be no Usurpation according to the Resolutions in Sir Henry Gaudies Case in the Lord Hobart before cited and in Greens Case in the 6th Report of the Lord Cook And the not observing of this difference made the Reporter at the end of thâ— L. Buckhursts Case deny this latter part of the Case in 0 H. 7. because it was clearly against the reason of the principal Case in 10 H. 7. and against the Resolution of the L. Buckhursts Case if the words of shewing the presentment to have been as appendant had been omitted in the Case But those words make the latter Case in 10 H. 7. exactly to agree with the Judgments both in Sir Henry Gaudies Case in Hob. and Greens Case in the 6th Rep. 15 H. 6. Fitzh Quare Imped num 77. To the 4 first Cases may be added the Case of 15. H. 6. where the Plaintiff counts in a Quare Impedit that his Ancestor was seised of a Mannor to which the Advowson is appendant and presented and dyed and that the Mannor descended to the Plaintiff and the Church became void whereby he ought to present the Defendant pleads that long after the Presentation alledged by the Plaintiff the Defendant was seised of the Advowson in Fee and presented such a one and after the Church became void and he presented the present Incumbent and this Plea was allowed a good plea by the Court without answering to the appendency alledged by the Plaintiff which was in effect avoided by the Defendants Presentation after And in this Case the Plaintiff was without remedy unless he could traverse the Presentation alledged by the Defendant otherwise than by his Writ of Droit d'Advowson Crook 2. Car. f. 61. Sir Greg. Fenner vers Nicholson Pasfield As also the Case in Crook If the Plaintiff make Title to present as being seised of an Advowson in gross or as appendant and the Defendant make Title as presented by reason of a Simoniacal presentation made by the Plaintiff and thereby a Devolution to present to the King under whom the Defendant claims because the Defendant doth admit the Advowson to be in gross or appendant in the plaintiff and that neither of them is inconsistent with the Title made by the Defendant he shall not traverse the Seisin in gross nor the appendency but because somewhat else is necessary to give the plaintiff right to present that is the vacancy of the Church either by death or resignation or deprivation which the plaintiff must alledg and which are inconsistent with the Defendants Title who claims not by vacancy by death resignation or deprivation but by the Simony therefore he shall traverse the vacancy alledged either by death resignation or deprivation as the Case falls out without one of which the plaintiff makes no Title and if the present vacancy be by either of them the Defendant hath no Title Now to apply these Cases to the question before us whether the Defendant should have traversed the Presentation of the Lord Wootton alledg'd by the plaintiff or the appendency which he hath done to the third Part of the Mannor and third Part of the Rectory of Burton Basset It seems clear That in all Cases of Quare Impedits the Defendant may safely traverse the Presentation alledged in the Plaintiffs Count if the matter of fact will admit him so to do for the Plaintiff hath no Title without alledging a Presentation in himself his Ancestor or those from whom he claims the Advowson but the Defendant must not traverse that is deny the Presentation alledged when there was a Presentation for then the issue must be found against him The Lord Wootton therefore having presented by what right soever it was there was no traversing his Presentation But by what right soever the Lord Wootton presented the Plaintiff hath no right to present unless the Lord Woottons Presentation were by the appendency to the third part of the mannor for he deriving no title to the Advowson as in gross nor any other way but as belonging to the third part of the Mannor which he derives from the Lord Wootton Therefore nothing is traversable by the Defendant but the appendency which if found against the Plaintiff he hath no colour of Title Pasc 19. Car. 2. Rot. 484. C. B. Henry Edes Plaintiff in a Quare Impedit against Walter Bishop of Oxford THat he was and is seised of the Advowson of the Church of Chymer in gross in Fee and thereto presented Will. Paul his Clerk who was instituted and inducted accordingly That after the Church becoming void and so remaining by the death of the said William Paul and it belongs to him to present he is hindred by the Defendant The said Bishop by Protestation saying the Church did not become void by death of the said William Paul pleads that the said Church was full of the said Paul The said W. Paul was created Bishop of Oxford whereby the said Church became void and the right of presentation devolv'd to the King by Prerogative 25 H. 8. c. 21. Then pleads the clause of the Act of 25 H. 8. which impowrs the Archbishop of Canterbury to give faculties and dispensations as the Pope did at large That after and before the Writ purchased Decimo of the King the
is not sufficient by the Rule of the Act of 25. unless confirmed by the King It was otherwise in the Popes case before the Act. There are many Presidents in Mr. Noy's Book where in like Obj. 2 case the King after the death of a Bishop holding in Commendam after his translation to another See and after his resignation hath presented All those Presidents are since the Twentieth of the Queen which Answ 1 cannot alter the Law 2. Who knows in the cases of death whether those Presentations were not by consent of the Patrons and doubtless there are Presidents wherein the Patrons did present else this Question had been earlier But Judicandum est legibus non exemplis Vpon Translation of a Bishop holding a Commendam in the Answ 2 Retinere as long as he continued Bishop there the King ought to present for the Dispensation is determined upon his remove and then is as if it had not been and a Dispensation gives no property to the Living nor takes away any But where property is given to the Living as by Presentation Institution and Induction or by Grant as in Appropriations Hob. Colts and Glovers Case and sometimes otherwise by the King such presenting or granting for a year or six is to grant it during life As an Atturnment cannot be for a time nor a Confirmation nor a Denization or Naturalization and the like but such Acts are perfect Manwarings Case 21 Jac. Crook f. 691. as they may be notwithstanding Restriction to time as is agreed well in Manwaring's Case I shall say nothing of the case of Resignation as not being in the present Question Judgment was given by the Opinion of the whole Court That the Avoidance was by Death not by Cession Hill 19 20 Car. II. C. B. Rot. 1785. Baruck Tustian Tristram Plaintiff Anne Roper Vicountess Baltinglass Vidua Defendant in a Plea of Trespass and Ejectment THe Plaintiff declares That the Defendant vi Armis entred into 20 Messuages 1000 Acres of Land 200 Acres of Meadow and 500 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick Westbury and Looffield and into the Rectory of Thornbury which Thomas Gower Kt. and Baronet and George Hilliard to the said Baruck demis'd the First of Octob. 19 Car. 2. Habendum from the Feast of St. Michael the Arch-angel last past for the term of Five years next ensuing into which he the said Baruck the same day entred and was ousted and ejected by the Defendant ad damnum 40 l. To this the Defendant pleads Not Guilty And the Jury have found specially That the Defendant is not guilty in all those Tenements besides 5 Messuages 400 Acres of Land 50 Acres of Meadow 100 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick and Westbury and in the Rectory of Thornbury and besides in one Messuage 100 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture cum pertinentiis in Looffield And as to the Trespass and Ejectment aforesaid in the said five Messuages c. and in the Rectory of Thornbury the Iury say upon their Oath that before the said Trespass and Ejectment suppos'd 22 Junii 12 Jac. Sir Arthur Throgmorton Kt. was seis'd in Fee of the aforesaid Rectory and Tenements last mentioned and of the said Premisses in Looffield and so seis'd A certain Indenture Tripartite was made 22 Junii 12 Jac. between him the said Sir Arthur of the first part Edward Lord Wootton Augustine Nicholls Kt. Francis Harvey Esq and Rowly Ward Esq of the second part and Sir Peter Temple and Anne Throgmorton Daughter of the said Sir Arthur of the third part To this effect That the said Sir Arthur Throgmorton did covenant and promise with the said Lord Wootton and Sir Augustine Nicholls in consideration of Marriage to be had between the said Sir Peter Temple and the said Anne and other the considerations mentioned in the said Indenture by Fine or Fines before the Feast of St. Michael the Arch-angel next ensuing or other good Conveyance to be levied by him and the said Dame Anne his wife to the said Lord Wootton c. The scite and precinct of the Priory of Looffield the Rectory of Thornbury and divers Mannors Lands and Tenements in the said Indenture mentioned several yearly Rents therein mentioned and all other his Lands in the Counties of Northampton Buckingham and Oxford at any time belonging to the said Priory to convey and assure To the use of himself for life without Impeachment of Waste Then to the use of Dame Anne his Wife Then to the use of the said Sir Peter Temple and the said Anne his Wife during their natural lives and the longer Liver of them and after both their Deceases To the use of the first Son of the Body of Anne by the said Sir Peter begotten and of the Heirs Males of the Body of the said first Son so to the sixth Son Then to the use of all other Sons in succession in like manner of the Body of Anne begotten by the said Sir Peter And for default of such Heirs To the use of all the Issues Female of the Body of the said Anne by the said Sir Peter begotten and the Heirs of the Bodies of the said Issues Female For default thereof To the first Son of the said Anne by any other Husband and his Heirs Males and so to the tenth In like manner to the Issues Female of the Body of Anne with divers Remainders over A Proviso That it be lawful for Sir Arthur at all times during his life to lett set and demise all or any the said Premisses aforesaid which at any time heretofore have been usually letten or demised to any person or persons for and during the term of One and twenty years or under in possession and not in Reversion or for or during any other number of years determinable upon one two or three Lives in Possession and not in Reversion reserving the Rents therefore now yielded or paid or more to be yearly due and payable during such Lease and Leases unto such person and persons unto whom the said Premises so to be demised shall come and be by virtue of these Presents if no such demise had been made so long as the same Lessees their Executors and Assigns shall duly pay the Rents and perform their Conditions according to the true meaning of their Indentures of Lease and commit no waste of and in the things to them demised The like Proviso verbatim for Sir Peter Temple and Anne his Wife to make like Leases during their Lives and the Life of the longer liver of them after the death of Sir Arthur and Dame Anne his Wife That a Fine was accordingly levied c. to the uses aforesaid They find that all the Messuages Lands Tenements and Rectory in the Declaration mentioned are compris'd in the said Indenture Tripartite They find the death of Sir Arthur Throgmorton and Anne his Wife 2. Septemb.
to that Issue but may take another This dis-affirms the former Case when the Information is by an Informer the King must maintain his Information Note the close of this Case Ut supra per Attornatum Regis alios legis peritos I shall give the Case here mentioned in this ut supra which will I think determine the Question and clearly establish the Law according to the Difference taken That Case is likewise in Br. and cited to be as in 34 H. 8. whereof there is no Year-book neither some four years before the last Case I mentioned It is thus Br. Prerogative p. 116. 34 H. 8. Nota by Whorhood Attornatum Regis alios When an Information is put into the Chequer upon a penal Statute and the Defendant makes a Barr and Traverseth that there the King cannot wave such Issue tender'd and Traverse the former matter of the Plea as he can upon Traverse of an Office and the like when the King is sole party and intitled by matter of Record for upon the Information there is no Office found before and also a Subject is party with the King for a moiety Quod nota bene Here it is most apparent That upon an Information when the King hath no Title by matter of Record as he hath upon Office found the King cannot waive the Issue tender'd upon the first Traverse though the Information be in his own name which disaffirms the second Case in that point And for the Supernumerary reason That the King is not the sole party in the Information it is but frivolous and without weight but the stress is where the King is sole party and intitled by matter of Record I shall add another Authority out of Stamford Praerogative If the King be once seis'd his Highness shall retain against all others who have not Title nothwithstanding it be found also that the King had no Title but that the other had possession before him 37 Ass pl. 11. as appeareth in 37. Ass p. 35. which is pl. 11. where it was found That neither the King nor the party had Title and yet adjudg'd that the King should retain for the Office that finds the King to have a Right or Title to enter Stamford Praerogative f. 62. b. makes ever the King a good Title though the Office be false c. and therefore no man shall Traverse the Office unless he make himself a Title and if he cannot prove his Title to be true although he be able to prove his Traverse to be true yet this Traverse will not serve him Stamford Prerogative f. 64. b. It is to be noted That the King hath a Prerogative which a Common Person hath not for his Highness may choose whether he will maintain the Office or Traverse the Title of the party and so take Traverse upon Traverse If the King take Issue upon a Traverse to an Office he cannot in another Term change his Issue by Traversing the Defendants Title for then he might do it infinitely But the King may take Issue and after Demurr 13 E. 4. expresly and several other Books 28 H. 6. f. 2. a. or first Demurr and after take Issue or he may vary his Declaration for in these Cases as to the Right all things remain and are as they were at first but this ought to be done in the same Term otherwise the King might change without limit and tye the Defendant to perpetual Attendance Judgment pro Defendente Hill 21 22. Car. II. C. B. Rot. 606. Thomas Rowe Plaintiff and Robert Huntington Defendant in a Plea of Trespass and Ejectment THE Plaintiff declares That Thomas Wise 1. April 21 Car. 2. at Hooknorton in the County of Oxford by his Indenture produc'd dated the said day and year demis'd to the said Thomas Rowe the Mannor of Hooknorton with the Appurtenances 4 Messuages 100 Acres of Land 50 Acres of Meadow 400 Acres of Pasture and 50 Acres of Wood with the Appurtenances in Hooknorton aforesaid As also the Rectory and Vicaridge of Hooknorton and the Tithes of Grain Hay and Wool renewing in Hooknorton aforesaid To have and to hold the Premisses from the Feast of the Annunciation of the Virgin then last past to the end and term of Seven years then next ensuing That by virtue thereof the said Thomas Rowe the Plaintiff into the said Mannor and Tenements enter'd and of the said Rectory Vicaridge and Tithes was possessed That the said Robert Huntington the Defendant the said First of April with Force and Arms into the said Mannor Rectory Vicaridge and Tithes entred and him Ejected against the Peace to his great damage and whereby he is endamaged 100 l. The Defendant Huntington pleads not Culpable And thereupon Issue is Ioyn'd The Jury give a Special Verdict That as to the Trespass and Ejectment in the said Mannor and Tenements and in the said Rectory Vicaridge and Tithes aforesaid excepting 200 Acres of Pasture parcel of the said Mannor of Hooknorton That the Defendant Huntington is not Culpable And as to the said 200 Acres they say that long before the said Trespass and Ejectment That is the 14th day of October 1. Mar. one Robert then Bishop of Oxford was seis'd in his Demesne as of Fee in Right of his Bishoprick of the said Mannor whereof the said 200 Acres are parcel and so seis'd the said 14th of October 1 Mariae at Hooknorton aforesaid by his Indenture of Demise seal'd with his Episcopal Seal Dated the said day and year and shew'd in Evidence to the Jury made between the said Bishop of the one part and John Croker of Hooknorton Esq of the other part for Considerations in the said Indenture of Demise mentioned had demis'd and to farm lett to the said Croker Among other things the said Mannor with the Appurtenances whereof the said 200 Acres are parcel To have and to hold to the said Croker and his Assigns from the end and expiration prioris Dimissionis in eadem Indentur Mentionat for and during the term of Ninety years then next following The tenor of which Indenture of Demise follows in haec verba This Indenture made the Fourteenth day of October 1 Mariae c. Between the said Bishop and the said John Croker c witnesseth That where the said Bishop by the name of the Reverend Father in God Robert King Abbot of Tame and Commendatory of the late Monastery of Oseney in the County of Oxford and the Covent of the same by their Deed Indented Dated 6. April 29 Hen. 8. with the Consent of their whole Chapter Have demis'd and to farm lett All that their Mansion or Farm of Hooknorton with the Appurtenances in the said County and all the Mansion and Farm Demesne Lands Meadows Leasowes and Pastures with all Commodities and Profits to the said Mannor belonging or appertaining and the customary works of all the Tenants not granted nor remitted before the Date of the Deed And the Parsonage of Hooknorton and
the Issue was not found Hill 10 Car. 1. B. R. Wilkinson and Meriams Case Rolls 700. 701. Tit. Tryal If a Jury find that J.S. was seis'd in Fee of Land and posses'd of certain Leases for years of other Land made his Will in writing and thereby devis'd his Leases to J.D. and after devis'd to his Executors the residue of his Estate Mortgages Goods c. his Debts being paid and funeral Expences discharg'd It being referred by the Jury to the Court Whether by this devise the Executor hath an Estate in Fee or not This is no perfect special Verdict because the Jury find not the Debts paid and the Funeral Expences discharg'd which is a Condition precedent to the Executors having an Estate in Fee and without finding which the Court cannot resolve the matter to them referr'd by the Jury Therefore a Venire facias de novo was awarded Judgment was given for the Defendant Trin. 22. Car. II. C. B. Rot. 461. Richard Edgcomb Knight of the Bath Executor of Pierce Edgcomb Esquire his Father is Plaintiff Rowland d ee Administrator of Charles Everard Esquire during the Minority of Charles Everard Son of the Intestate Defendant In an Action of the Case upon an Assumpsit THE Plaintiff declares That the Intestate the Thirteenth of July 1664. at London in the Parish of St. Mary Bow in the Ward of Cheap in consideration that the said Pierce Edgcomb would at his request lend him 500 l. promis'd the said Pierce to repay it within Seven daies after demand with Interest after the rate of 4 l. per Centum That thereupon the said Pierce Edgcomb after at the time and place aforesaid did lend the said Intestate 500 l. That the said Pierce the Testator afterwards the Fourteenth of July 17 Car. 2. at the place aforesaid required the Intestate to pay the said 500 l. with Interest after the rate aforesaid both which amounted to the Sum of 520 l. He lays further That the said Intestate was indebted to Pierce the Testator the Fourteenth day of July 1664. in the Sum of 500 l. for mony before that time to him lent by the said Pierce And in Consideration thereof the said Fourteenth of July 1664. in the said Parish and Ward promis'd to pay when requir'd But that neither the Intestate in his life time nor the Defendant to whom the Administration of his Goods were committed during the Minority of Charles Everard Son of the said Intestate at London in the Parish and Ward aforesaid did pay the said Sums nor either of them amounting to 1020 l. to the said Pierce Edgcomb in his life time nor to the said Richard the Plaintiff after his death Though required by the Intestate afterwards in his life time that is upon the First of August 17 Car. 2. And the said Defendant after the death of the Intestate viz. the Tenth day of March 18 Car. 2. and often after at the said Parish and Ward by the Testator Pierce were requir'd And the said Defendant after the death of the Testator the First day of January 21 Car. 2. was required at the place aforesaid by the Plaintiff to pay the said mony which he did not and still refuses to his damage of 800 l. The Defendant pleads payment after the Plaintiffs Writ purchas'd of several great debts due by Bond and Bills obligatory from the Intestate to several persons at his death in number One and thirty That the Intestate the Two and twentieth of December 16 Car. 2. became bound in a Recognizance in the Chancery to Sir Harbottle Grimstone Baronet Master of the Rolls and to Sir Nathaniel Hobart one of the Masters of the Chancery in 2000 l. And that the said 2000 l. is still due and unpaid and the said Recognizance in its full force unsatisfied or discharg'd He pleads the City of London is an ancient City and that within it time out of mind hath been held a Court of Record of the Kings c. before the Mayor and Aldermen of the said City in Camera Guild-hall ejusdem Civitatis of all personal Actions arising and growing within the said City That the Intestate at the time of his death was indebted apud London praedict in the Parish and Ward praedict to one William Allington in 2670 l. 17 s. 7 d. And who after the purchase of the Plaintiffs Writ the Tenth of March the Eighteenth of the King came to the said Court before Sir Thomas Bludworth then Mayor and the Aldermen in the said Chamber according to the Custome of the said City held us'd and approv'd Et praedictus Willielmus Allington tunc ibidem in eadem Curia secundum consuetudinem praedictae Civitatis affirmabat contra praedictum Rolandum Dee ut Administratorem c. quandam Billam originalem de placito debiti super demand Mille sexcentarum septuaginta librarum decem septem solidorum septem denariorum legalis monetae c. And that it was so proceeded according to the Custome of the said City that the said William Allington had Judgment to recover against the Defendant the said Debt and 85 l. 16 s. for damages c. And that after the Defendant in full satisfaction of the said Judgment paid to the said William Allington the Sum of 2670 l. and 17 s. Then pleads about Four and twenty Recoveries and Judgments thereupon in the Kings Bench in Pleas of Debt without Specialties all satisfied but one of 7000 l. and more due to one Cornwallis Then pleads Plene administravit all the Goods of the Intestate at the time of his death to be administred and that he had not die Impetrationis brevis Originalis praedicti nec unquam postea aliqua bona seu cattalla predict Car. Everard tempore mortis suae in manibus suis administrand praeterquam bona cattalla ad valentiam separalium denariorum summarum per ipsum sic ut praefertur solutarum in exonerationem separalium Judiciorum scriptorum obligatori orum billarum obligatoriarum predict Ac praeter alia bona cattalla ad valentiam decem solidorum quae executioni Recognitionis praedict ac Judicii praedicti per praefatum Carolum Cornwallis versus ipsum ut praefertur recuperat onerabilia onerata existunt Et quod ipse Rolandus modo non habet aliqua bona seu cattalla quae fuerunt praedict Caroli tempore mortis suae administrand praeter praedicta bona catalla ad valentiam praedictorum decem solidorum quae executioni recognitionis praedict ac Judicii praedict per praefatum Carolum Cornwallis recuperat sic ut praefertur onerata onerabilia existunt Et hoc paratus est c. Et petit Judicium Then Averrs the debts so as aforesaid by him paid to be bonâ fide paid pro veris justis debitis owing and unpaid by the Intestate at the time of his death And that the several Iudgments aforesaid against him recover'd were for true and just debts of
did the principal Trespass were convicted And the reason of that Law is very pressing for else a man may be found Culpable of aiding or precepting a Trespass to be done when the doers of the Trespass are acquitted and not Culpable which is to be Culpable of aiding the doing of a thing never done which is impossible It will be said The Law in that Case is since alter'd and otherwise practis'd But who could alter a Law affirm'd by Judgment in Parliament to be the Custome and Law of the Kingdome without an Act of Parliament to alter it which was not or at least an Error in another Parliament if that might be which is not so clear For this is not like a Judgment given in one Court and after contraried in another or in the Chequer Chamber Any Law of the Kingdom might as well be alter'd without Act of Parliament as this 5. However letting that pass but as the Law is now taken no man can be guilty of aid or assistance to a Trespass not done and which is the same whereof the Actors are acquitted But in this Case They that put the Plaintiff in the Stocks are found not Guilty and another Defendant found Guilty for bidding him be put in the Stocks 6. Another reason is That Coxe cannot be Culpable of a Trespass which cannot or must not be proved which is the same But by the Statute no regard or respect is to be had of the Evidence proving the Trespass if the Fact be not proved to be done where the Action is laid Therefore there can be no Evidence against Coxe for Evidence not to be regarded and not at all is the same 7. If the other Defendants cannot by the Statute be found Culpable because they were aiding and assisting the Constable though in an undue execution of his Office no more can Coxe For aid or assistance may be by direction or precept as well as by corporal strength And therefore if they be free for assisting to put the Plaintiff in the Stocks forcibly Coxe is free for advising and bidding him be put there directively 8. Lastly the Statute intends like benefit to the Defendants when the Fact is not proved to be done where the Action is laid as if the Plaintiff became Nonsuit or suffer'd a discontinuance But in case of Nonsuit or Discontinuance all the Defendants were to have their double Costs both by 7 and 21 Jac. for a Nonsuit or Discontinuance cannot be against some of the Defendants for the Nonsuit and Discontinuance are of the entire action Therefore here all the Defendants shall have double Costs And if the Iury had not meant the Defendants equally free or equally faulty they would have added in their Verdict That if upon the whole matter found the Court should think that Actio praedicta would lye in London against some of the Defendants and not others then they found such against whom it might be laid in London Culpable and the rest not Culpable The Record is Et praedictus Richardus Coxe Miles Except accersivit the Constable whereas there is no praedictus Richardus Coxe Miles but Baronettus and there is another praedictus Richardus Coxe Armâ—ger which makes the Verdict incertain in this point Quaerens nil Capiat c. Pasch 21 Car. II. in Banc. William Hayes Plaintiff and Charles Bickerstaff Defendant In Arrest of Judgment CHarles Bickerstaff being possessed of a long term of years in certain Woodlands and Copces in Cobham in the County of Kent Demis'd Sett and to Farm lett the same for Six years parcel of his term to the Plaintiff under a Rent and other Reservations and Covenanted The Plaintiff keeping and performing the Agreements of his part to be kept and performed Quod praedictus Willielmus Hayes legitime haberet teneret gauderet habere tenere gaudere potuisset praedicta dimissa praemissa juxta conventionem praeantea in per Indenturam praedict dimiss absque aliquo impedimento perturbatione evictione vel interruptione quibuscunque de vel per dictum Carolum Bickerstaff Executores Administratores vel Assignatos suos aut aliquem eorum prout per Indenturam praedictam plenius apparet That by virtue of the said Demise he entred and was posses'd and that after the Defendant being possess'd for a longer term granted the Reversion to Charles Duke of Lenox to whom the Plaintiff atturn'd and that afterwards the said Duke and others by his command entred upon the Plaintiff although he observ'd all Agreements of his part and carried away many Loads of Faggots and Wood and kept and still keeps him out of Possession to his Damage of Eight hundred pounds And brings his Action for breach of the Covenant aforesaid The Defendant pleads Enjoyment according to the Demise and Traverseth the Grant of the Reversion to the Duke Modo Forma All Covenants between a Lessor and his Lessee are either Covenants in Law or Express Covenants By Covenant in Law the Lessee is to enjoy his Lease against the lawful Entry Eviction or Interruption of any man but not against tortious Entries Evictions or Interruptions and the reason of Law is solid and clear because against tortious acts the Lessee hath proper Remedy against the wrong doers So are the express Books of 22 H. 6. 22 H. 6. f. 52. b. 32 H. 6. f. 32 b. N. Br. â—45 b. Letter L. where a man leas'd by Deed-poll without express Covenant and 32 H. 6. where the Lease was by Deed Indented If the Lessor seaseth the term by Deed-poll Nat. Br. and outeth the Lessee he shall have a Writ of Covenant upon that Deed-poll although he hath no Indenture of it But if a stranger who hath no right outs the Lessee then he shall not have a Writ of Covenant against the Lessor because he hath remedy by Action against the stranger but if a stranger enter by elder Title then he shall have a Writ of Covenant for he hath no other Remedy This shews the Law gives not Remedy to the Lessee upon the Covenant when he hath a proper and natural Remedy against another who doth the wrong By the same Reason if the Lessee be by express Covenant to enjoy his term or enjoy it against all men which is the same he shall not have an Action of Covenant against the Lessor unless he be legally outed or evicted For if he be outed tortiously by any stranger he hath his Remedy So is the express Book of 26 H. 6. f. 3. b. where it is agreed That the warranty of a Lease for years is but an Action of Covenant which extends not to tortious Entries for the former Reason Yet I agree If the Lessor expresly Covenants that the Lessee shall hold and enjoy his term without the Entry or Interruption of any whether such Entry or Interruption be lawful or tortious There the Lessor shall be charg'd by an Action of Covenant for the tortious Entry of a stranger because no other
cannot answer it Therefore the parties agree the Fact by their pleading upon Demurrer and ask the Iudgment of the Court for the Law In Special Verdicts the Jury Inform the naked Fact and the Court deliver the Law and so is it in Demurrers upon Evidence in Arrest of Judgments upon Challenges and often upon the Judges Opinion of the Evidence given in Court the Plaintiff becomes Nonsuit when if the matter had been left to the Jury they might well have found for the Plaintiff But upon all general Issues as upon not Culpable pleaded in Trespass Nil debet in Debt Nul tort Nul disseisin in Assize Ne disturba pas in Quare Impedit and the like though it be matter of Law whether the Defendant be a Trespassor a Debtor Disseisor or Disturber in the particular Cases in Issue yet the Jury find not as in a Special Verdict the Fact of every Case by it self leaving the Law to the Court but find for the Plaintiff or Defendant upon the Issue to be tryed wherein they resolve both Law and Fact complicately and not the Fact by it self so as though they answer not singly to the Question what is the Law yet they determine the Law in all matters where Issue is joyn'd and tryed in the principal Case but where the Verdict is Special Hob. f. 227. To this purpose the Lord Hobart in Needler's Case against the Bishop of Winchester is very apposite Legally it will be very hard to quit a Jury that finds against the Law either Common Law or several Statute Law whereof all men were to take knowledge and whereupon Verdict is to be given whether any Evidence be given to them or not As if a Feoffment or Devise were made to one imperpetuum and the Jury should find cross either an Estate for Life or in Fee-simple against the Law they should be subject to an Attaint though no man informed them what the Law was in that Case The legal Verdict of the Jury to be recorded is finding for the Plaintiff or Defendant what they answer if asked to questions concerning some particular Fact is not of their Verdict essentially nor are they bound to agree in such particulars if they all agree to find their Issue for the Plaintiff or Defendant they may differ in the motives wherefore as well as Judges in giving Iudgment for the Plaintiff or Defendant may differ in the Reasons wherefore they give that Iudgment which is very ordinary I conclude with the Statute of 26 H. 8. c. 4. That if any Jurors in Wales do acquit any Felon Murderer or Accessary or give an untrue Verdict against the King upon the Tryal of any Traverse Recognizance or Forfeiture contrary to good and pregnant Evidence ministred to them by persons sworn before the Kings Justiciar That then such Jurors should be bound to appear before the Council of the Marches there to abide such Fine or Ransome for their Offence as that Court should think fit If Jurors might have been fined before by the Law for going against their evidence in matters criminal there had been no cause for making this Statute against Jurors for so doing in Wales only Objections out of the Ancient and Modern Books 1. A Juror kept his Fellows a day and night 8 Ass pl. 35. without any reason or assenting and therefore awarded to the Fleet. This Book rightly understood is Law That he staid his Fellows a day and a night without any reason or assenting may be understood That he would not in that time intend the Verdict at all more than if he had been absent from his Fellows but wilfully not find for either side In this sense it was a Misdemeanor against his Oath For his Oath was truly to try the Issue which he could never do that resolv'd not to conferr with his Fellows And in this sense it is the same with the Case 34 E. 3. where Twelve being sworn and put together to treat of their Verdict 34 E. 3. Bra. Title Jurors n. 46. one secretly withdrew himself and went away for which he was justly fined and imprison'd and it differs not to withdraw from a mans duty by departing from his Fellows and to withdraw from it though he stay in the same Room and so is that Book to he understood But if a man differ in Iudgment from his Fellows for a day and a night though his dissent may not be as reasonable as the Opinion of the rest that agree yet if his Iudgment be not satisfied one disagreeing can be no more criminal than four or five disagreeing with the rest 2. A Juror would not agree with his Fellows for two dayes 41 Ass p. 11. and being demanded by the Judges If he would agree said He would first die in Prison whereupon he was committed and the Verdict of the Eleven taken but upon better advice the Verdict of the Eleven was quasht and the Juror discharg'd without Fine and the Justices said the way was to carry them in Carts until they agreed and not by fining them and as the Judges err'd in taking the Verdict of Eleven so they did in imprisoning the Twelfth and this Case makes strongly that the Juror was not to be fined who disagreed in Iudgment only Much of the Office of Jurors in order to their Verdict is ministerial as not withdrawing from their Fellows after they are sworn not withdrawing after challenge and being tryed in before they take their Oath 36 H. 6. f. 27. Br. Jurors 18. not receiving from either side Evidence after their Oath not given in Court not eating and drinking before their Verdict refusing to give a Verdict and the like wherein if they transgress they are finable but the Verdict it self when given is not an Act ministerial but judicial and according to the best of their judgment for which they are not finable nor to be punisht but by Attaint 3. The Case of 7 R. 2. Title Coronae Fitz. 108. was cited where upon acquittal of a Common Thief the Judge said The Jury ought to be bound to his good behaviour during his life But saith the Book quere per quel ley but that was only gratis dictum by the Judge for no such thing was done as binding them Hob. f. 114. 4. Bradshaw and Salmons Case was urg'd where a Jury had given excessive Damages upon a Tryal in an Action of Covenant and the Court of Star-Chamber gave Damages to the Complainant almost as high as the Jury had given upon the Tryal But the Jury who gave the Damages were not question'd Though saith the Book they might have been because they receiv'd Briefs from the Plaintiff for whom they gave Damages which was a Misdemeanor but the express Book is That the Jury could not be punisht by Information for the excessive Damages but only by Attaint therefore not for their false Verdict without other Misdemeanor which answers some other Cases alledg'd Nor can any man shew
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
because the Libel was That the marriage was Incestuous Next a Consultation might be granted unless cause were shew'd for it was no otherwise Because the Suggestion was not That the marriage was out of the Levitical Degrees but that the persons married were extra leges Leviticales which was as if they had said They were not under the Jewish Common-wealth And then a Consultation might be granted upon this Prohibition as upon that of Mann's Case because the Plaintiff did not averr the marriage to be extra gradus Leviticus and ground his Prohibition thereupon As those two Prohibitions were for marrying the Wives Sisters daughter that is the Wives Neece by the Sister So there is a Case in the Lord Hobbard Hobbard f. 181. a. Keppington where one Keppington married his Wives Sisters daughter was questioned for Incest by the High Commissioners and sentenced and entred into Bond to abstain from her Company but was not divorced and therefore the Wife recover'd a Wives Widows Estate in a Copy-hold notwithstanding the Sentence but no Prohibition was in the Case The same Case is in the Reports which pass for Mr. Noye's f. 29. but mistaken for there in place of his Wives sister it is Fathers sister Hill 21. Car. II. This Case was by the King's Command adjourn'd for the Opinion of all the Judges of England Trin. 22. Car. II. The Chief Justice delivered their Opinions and accordingly Judgment was given That a Prohibition ought to go to the Spiritual Court for the Plaintiff Mich. 20 Car. II. C. B. Sir Henry North Plaintiff William Coe Defendant SIR Henry North hath brought an Action of Trespass Quare clausum fregit against William Coe in a Close upon the new Assignment called Westrow-hills containing Fifty Acres a Close called the Heyland containing One hundred Acres and another called the Delf and Brink containing One hundred and fifty Acres in Milden-hall The Defendant pleads That the said places are part of the Mannor of Milden-hall whereof the Plaintiff was seis'd tempore transgressionis suppositae and that he was then and yet is seis'd of an ancient Messuage with the Appurtenances in Milden-hall being one of the free Tenements of the said Mannor and held of the said Mannor by Rents and other Services in his demesne as of Fee That there are divers freehold Tenements time out of mind in the said Mannor held by several Rents and Services parcel of the said Mannor and that there were and are infra candem Villam divers customary Tenements parcel of the said Mannor grantable Ad voluntatem Domini by Copy That all the Tenants of the free Tenements time out of mind habuerunt usi fuerunt and all the Tenants of the Customary Tenements Per consuetudinem ejusdem Manerii in eodem Manerio à toto tempore supradict usitat approbat habuerunt habere consueverunt solam separalem Pasturam praedict Clausi vocat Westrow-hills cum pertinen for all their Cattel Hogs Sheep and Northern Steers except levant and couchant upon their respective Messuages and Tenements every year for all times of the year except from the Feast of St. Edmond to the Five and twentieth of March next following as belonging and pertaining to their several Tenements And likewise had and used to have solam separalem Pasturam praedict Clausi vocat Westrow-hills from the Feast of St. Edmund every year to the Five and twentieth of March for feeding of all their Cattel Hogs Sheep and Northern Steers except levant and couchant c. Excepted that the Tenants of the Demesne of the Mannor every year from the said Feast to the Five and twentieth of March by custome of the said Mannor depastured their Sheep there That at the time of the Trespass the Defendant put in his own Cattel levant and couchant upon his said Messuage Prout ei bene licuit and averreth not that none of his said Cattel were Porci Oves or Juvenci called Northern Steers but Petit Judicium The like Plea he makes for the Closes called the Haylands Delf and Brink but that the free Tenants as before and customary Tenants had solam separalem Pasturam pro omnibus averiis Porcis Ovibus Juvencis called Northern Steers excepted for all times of the year And that he put in Averia sua levantia cubantia super tenementum praedictum prout ei bene licuit Petit Judicium Cum hoc quod verificare vult quod nullus bovium praedict ipsius Willielmi suerunt Juvenci vocat Northern Steers Whereas no mention is of putting in Oxen but Averia sua in general and no averment that no Sheep were put in The Plaintiff demurs upon this Plea Exceptions to the Pleading The Defendant saith he was seis'd de uno antiquo Messuagio being one of the freehold Tenements of the said Mannor and that there are divers freehold Tenements within the said Mannor and that omnes Tenentes of the said Tenements have had solam separalem pasturam for all their Cattel levant and couchant except Porcis Ovibus and Juvencis called Northern Steers in the place called Westrow-hills and that he put his Cattel levant and couchant prout ei bene licuit 1. That he was seis'd de uno antiquo Messuagio and of no Land is not proper for Cattel cannot be levant in common intention upon a Messuage only 2. He saith he put in his Cattel levant and couchant but avers not as he ought That none of them were Porci Oves or Northern Steers for Porci there is a Rule of Court 3. He pleads in like manner as to the Hayland Delf and Brink That he put in his Cattel and avers that non Bovium praedict were Northern Steers when as there is no mention of putting in Oxen but Averia generally and no averment that there were no Sheep 4. The Plea doth not set forth the Custome of the Mannor but implicity that the Free-hold and customary Tenants have had and enjoy'd per consuetudinem Manerii solam separalem pasturam for all their Cattel which is a double Plea both of the custome of the Mannor and of the claim by reason of the custome which ought to be several and the Court should judge and not the Jury whether the claim be according to the custome alledg'd The custome may be different from the claim per consuetudinem Manerii if particularly alledg'd Lastly the matter in difference is not before the Court formally by this way of pleading for the matter in question must be Whether the Lord of the Mannor be excluded from pasturing with the Tenants in the place in question or from approving the Common If the Defendant had distrained Damage feasant and the Plaintiff brought his Action and the Defendant avow'd propter solam separalem pasturam the Lords right to depasture had come properly in question and by natural pleading Or if the Lord upon the Tenants plea had taken no notice of sola separalis pastura but had
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
recovered in Damages 101 Debt 1. Debts by simple contracts were the first Debts that ever were and are more noble than Actions on the Case upon which only damages are recoverable 101 2. Actions in the debet detinet are actions of property which is not in an action on the Case ibid. 3. Actions upon Bond or Deed made in Wales Ireland Normandy c. where to be tryed 413 4. 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 unsatisfied 92 5. It lies not for a Solicitor for his soliciting Fees but for an Attorney it well lies and there shall be no ley Gager in it 99 Declaration See Pleading 1. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 60 2. When the Plaintiff makes it appear to the Court that the Defendants Title is not good yet if the Plaintiff do not make out a good Title for himself he shall never have Judgment 60 3. The form of a Declaration in London according to their custome 93 4. The King may vary his Declaration but it must be done the first Term 65 5. In a Quare Impedit the Plaintiff must in his Declaration alledge a presentation in himself or those from whom he claims 7 57 Demand See Request 1. A Demand of Rent is not requisite upon a Limitation because Non-payment avoids it 32 2. But where there is a condition there must be a demand before entry ibid. 3. Where there are several Rents the demands must be several 72 4. If more Rent is demanded than is payable the demand is void ibid. Devastavit See Executors  Devise Devisor Devisee 1. The Law doth not in Conveyances of Estates admit Estates to pass by Implication regularly but in Devises they are allowed with due restrictions 261 262 c. 2. If an Estate given by Implication in a Will be to the disinheriting of the Heir at Law it is not good if such Implication be only constructive and possible but not a necessary Implication 262 263 267 268 3. The necessary Implication is that the Devisee must have the thing Devised or none else can have it 262 263 4. A. deviseth his Goods to his wife and after her decease his Son and Heir shall have the House where they are this is a good Devise of the House to the wife by Implication because the Heir at Law is excluded by it and then no person can claim it but the wife by Implication of the Devise 263 264. 5. A. having issue Thomas and Mary devises to Thomas and his Heirs for ever and for want of Heirs of Thomas to Mary and her Heirs This is an Estate tayl in Thomas 269 270 6. My will is if it happen my Son George Mary and Katherine my Daughters to dye without issue of their bodies lawfully begotten then all the Freehold Lands I am now seized of shall remain and be to my Nephew A. B. The construction and meaning of these words quid operatur by them 260 261 262 263 264 c. 7. If Land is devised to H. and his heirs as long as B. hath heirs of his body the remainder over such latter Devise will be good not as a Remainder but as an Executory Devise 270 8. My son shall have my Land to him and his heirs so long as any heirs of the body of A. shall be living and for want of such heirs I devise it to B. here B. shall take by future and Executory Devise 270 9. A Devise to the son and heir in Fee being no other than what the Law gave him is void 271 10. A Devise that if the son and heir pay not all the Legacies then the Land shall go to the Legatories upon default of payment this shall vest in the Legatories by Executory Devise 271 11. A. had issue W. T. and R. and devises to T. and his heirs for ever and if T. died without issue living W. that then R. should have the Land this is a good Fee in T. and R had a good Estate in possibility by Executory Devise upon the dying of T. without issue 272 12. An Executory Devise cannot be upon an Estate tayl 273 13. I bequeath my son Thomas to my Brother R to be his Tutor during his minority here the Land follows the custody and the Trust is not assignable over to any person 178 179 c. 14. A Devise of the Land during the minority of the Son and for his maintenance and education until he come of age is no devising of the Guardianship 184 Discent 1. Children inherit their Ancestors Estates without limit 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 244 3. In the case of Aliens nothing interrupts the common course of Discents but Defectus Nationis 268 Disclaimer 1. In a Quare Impedit upon the Bishops Disclaimer there is a Judgment with a Cessat Executio quousque c. Dismes See Tythes  Disseisor 1. A Disseisor Tenant in possession may Rebut the Demandant without shewing how he came to the possession which he then hath but he must shew how the warranty extended to him 385 386 Dispensation See Title Statutes 14. 1. The Pope could formerly and the Arch-bishop now can dispense for a plurality 20 23 2. How many Benefices a Bishop may retain by Dispensation 25 3. A Dispensation for years and good 24 4. A Dispensation after the Consecration of a Bishop comes too late to prevent the Voidance 20 5. If a man hath a Benefice with cure and accepts another without a Dispensation or Qualification the first becomes void and the Patron may present 131 132 6. No Dispensation can be had for marrying within the Levitical Degrees 214 216 239 7. A Dispensation obtained doth jus dare and makes the thing prohibited lawful to be done by him who hath it 333 336 8. Freedom from punishment is a consequent of a Dispensation but not its effect 333 9. What penal Laws the King may dispense with and what not 334 335 336 c. 10. Where the Suit is only the Kings for the breach of a penal Law and which is not to the damage of a third person the King may dispense 334 336 339 340 11. Where the Offence wrongs none but the King he may dispense with it 344 12. Where the Suit is the Kings only for the benefit of a third person there he cannot dispense 334 336 339 340 13. Offences not to be dispensed with 342 14. A Dispensation to make lawful the taking from a man any thing which he may lawfully defend from being taken or lawfully punish it if it is taken must be void 341 15. Dispensations void against Acts of Parliament for maintaining Native Artificers 344 16. Where the exercise of a Trade is generally prohibited
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
one Richard Manfell his Clerk who upon his Presentation obtain'd the said Vicaridge and was in actual possession thereof and so being in possession a Statute was made the 25th of April 12. of the King for confirmation and establishing of Ministers in their Ecclesiastick Possessions ordained by any Ecclesiastick Persons before the 25th of December then last past And that the said Richard Manfell by vertue of the said Statute was real and lawful Incumbent and Vicar of the said Vicaridge That the said Lord Wootton and Mary his Wife being seised of the said third part of the said Mannor and Rectory aforesaid for their lives with remainder as aforesaid the said Lord Wootton so seised dyed at Burton Basset aforesaid That the said Mary survived him and was thereof sole seised for term of her life by Survivorship And being thereof so seised with Remainder as aforesaid The said Margaret married the said John Tufton and after the 8th day of August 22. Car. 1. By a writing under her hand and seal produc'd in Court by the said John Tufton dated the same day and year appointed that the said Fine leavyed as aforesaid in the 4th year of the King should be and the Conusees therein named should stand seised of the said third part to the use of the said Margaret and of the said John Tufton for term of his life as by the said writing more fully appears By vertue of the said Fine and Statute of uses the remainder of the said third part after the death of the said Mary belong'd to the said John Tufton and Margaret for term of the said Johns life with remainder as aforesaid That the said Mary being seised of the said third Part with remainder over as aforesaid the said Margaret at Burton Basset aforesaid dyed without issue of her body and the said John Tufton surviv'd her That the said Mary afterwards at Burton Basset aforesaid dyed seised of such her Estate after whose death the said third part remain'd to the said John Tufton who was thereof seised for term of his life with remainder over to the Heirs of the Lord Wootton That the said Tufton being so seised in a Statute made at Westminster begun the 8th day of May in the 13th year of his reign and there continued until the 19th of May in the 14th year of his reign It was among other things enacted That Parsons Vicars and other Churchmen being Incumbents of any Ecclesiastical Living should subscribe the Declaration or Recognition set forth in the said Act in manner as by the said Act is recited which is set forth at large in the Pleading upon pain of forfeiting the said Parsonage Vicaridge or other Ecclesiastical Living and to be ipso facto deprived of the same And the said John Tufton in fact saith that the said Richard Mansell was in possession of the said Vicaridge of Burton Basset and did not as by the Act was required subscribe the said Declaration whereby he stood ipso facto deprived and the said Vicaridge became void That such vacancy of the said Vicaridge is the third vacancy thereof after the aforesaid Presentation of the said Lord Wootton and therefore it belongs to the said John Tufton to present a fit Person to the same and that the said Bishop Richard Temple and Chamberlayne do hinder him so to do to his damage of fifty Pounds The said Bishop and Richard Temple plead in Bar. And first the said Bishop That he claims nothing but as Ordinary Then the said Richard Temple saith the said Tufton ought not to have his Action against him and taking by Protestation that the said Tufton was not seis'd in his Demesn as of Freehold for Term of his life of the third part of the said Mannor of Burton Basset and of the third part of the said Rectory of Burton Basset aforesaid for Plea saith That he the said Richard Temple was and yet is seised of the said two parts of the said Mannor and of the Advowson of the Vicaridge of Burton Basset aforesaid as appertaining to the said two parts of the said Mannor in his Demesne as of Fee and right in the time of the King that now is That being so seised the said Vicaridge became void by the said Deprivation of the said Richard Manfell by reason whereof he the said Richard Temple being seised of the said Advowson as aforesaid presented to the said Vicaridge the said Chamberlain as was lawful for him then traverseth absque hoc That one third Part of the Advowson of the said Vicaridge namely to present a fit person to the same Vicaridge every third turn of the said Vicaridge doth appertain to the said one third part of the said Mannor and to the said one third part of the Rectory Impropriate of Burton Basset as the said John Tufton hath alledg'd which he is ready to aver and demands Judgment And the said Chamberlaine the Clerk taking by Protestation that he doth not know any the matters in the Declaration to be true and taking also by Protestation that before the said Vicaridge became void by the Deprivation of the said Richard Manfell and at the time it was so void the said Richard Temple was and yet is seised of the said two parts of the said Mannor and of the Advowson of the Vicaridge of the said Church of Burton Basset as appertaining to the said two parts of the said Mannor in his Demesne as of Fee and right And for Plea saith That he the said Chamberlain is Vicar of the said Vicaridge by the Presentation of the said Richard Temple and was thereto admitted instituted and inducted Then traverseth absque hoc That the said Thomas Lord Wootton after the death of the said John Reignalds so as aforesaid presented to the said Vicaridge being void in his turn the said John Cragg as the said Tufton hath alledg'd and demands Judgment As to the Bishops Plea his excuse is admitted and the Plaintiff hath Iudgment with a cessat executio against him and a Writ to admit idoneam personam to the Vicaridge non obstante reclamatione To the Defendant Temples Plea the Plaintiff demurs and the Defendant Temple joyns in Demurrer To the Plea of Chamberlain the Incumbent the Plaintiff replys That the said Thomas Lord Wootton after the death of the said John Reignalds Incumbent as aforesaid presented to the said Vicaridge then vacant in his turn as aforesaid the said John Cragg as the Plaintiff hath formerly alleag'd Et de hoc petit quod inquiratur per patriam To which the Defendant Chamberlain doth not rejoyn any thing nor joyns in issue and therefore the Plaintiff hath Judgment to recover his Presentation as against him and a Writ to the Bishop non obstante reclamatione and to remove the Defendant Chamberlain from the Vicaridge notwithstanding his Admission Institution and Induction but with a cessat executio until the Plea be determined between the Plaintiff and the Defendant Temple THIS CASE in fact cannot be
admitted instituted and inducted and the Church becoming void it belong'd to him to present again For which reason be alledging no Seisin in gross of the Advowson but only his Presentation and that his Clerk was received the Defendant formally ought to have traversed the Presentation which was alledg'd and not the Seisin in gross of the Advowson which was not alledged But the Case is the same whether he did or did not alledg in his Declaration that he was seis'd of the Advowson in gross and presented For still the Plaintiffs Presentation was to be traversed by the Defendant and not his being seis'd in gross though it were true that the Defendant making Title by the appendency of the Advowson to his Mannor the Plaintiffs Seisin in gross was absolutely inconsistent with the appendency and therefore speciously to be traversed by the Defendant But that traverse left a Title in the Plaintiff not destroyed and therefore was not good For whether the Plaintiff were seised or not of the Advowson in gross he presenting in the vacancy and his Clerk being admitted instituted and inducted he thereby gained a good Title by Vsurpation to present when the Church became next void And that is the true reason in that Case why the presentation which made the Plaintiffs immediate Title to present again was to be traversed and not his Seisin in gross of the Advowson which was not material when his Vsurpation gave him a Title though he were not seis'd in gross before his Vsurpation Ander 1 Part f. 296. p. 276. The next Case I shall use is as good authority out of the new Books as the other was out of the old It is the Lord Buckhursts Case reported in the first part of the L. Anderson The L. Buckhurst brought a Quare Impedit against the Bishop of Chichester and T. Bickley for disturbing him to present to the Vicaridge of Westfield and declared that the Advowson of the Vicaridge appertain'd to the Rectory of Westfield whereof he was seised in Fee and presented Maurice Sackvil his Clerk who was thereto admitted instituted and inducted that the Vicaridge was a Vicaridge with Cure of the annual value of 8 l. And that the said Sackvil accepted another Benefice with Cure by reason whereof and of the Statute of 21 H. 8. the Vicaridge became void and he presented and was disturbed by the Defendants The Bishop pleaded that before the Writ purchased one Richard Bishop of Chichester his Predecessor was seised of the Advowson of the said Vicaridge in Fee as in gross and collated to the said Vicaridge being void one Maurice Berkley who was inducted thereto and the said Richard dying the present Bishop was made Bishop and became seised of the Advowson and the Church became void by the said Sackvil's taking another Benefice with Cure and he collated the said Bickley the other Defendant and traversed absque hoc that the Advowson of the said Vicaridge pertained to the Rectory of Westfield modo forma as the Plaintiff alledg'd And Bickley the other Defendant pleaded the same Plea Vpon these Pleas it was demurred because the traverse to the Appendency was not good as was alledged and after much Argument and many Cases cited where the Appendency was traversable The Court resolved the appendency was not traversable in the Case nor was it material whether the Advowson were appendant or in gross as the book is express so as nothing could be traversable in the Case then but the Lord Buckhursts Presentation which after the Induction of his Clerk though it were by Vsurpation made him a good Title to present when the Vicaridge became next void Whence it follows that if the Defendant could not traverse the L. Buckhursts Presentation of Sackvil which was his immediate Title the Defendant was remediless but by a Writ of Droit d'Advowson And in the resolution of this Case of the L. Buckhust the Case of 10 H. 7. before cited was principally relyed on as warranting the Iudgment which it fully doth it being adjudged for the same reason there that the Seisin in Fee of the Advowson in gross was not traversable but the Presentation was as it was adjudged in this Case that the appendency was not traversable by the Defendant but the Presentation And by the way I observe Hobart Digbies Case f. 102. that in the Report of the Lord Buckhurst's Case it is admitted that the Plaintiff in the Case of 10 H. 7. did count that he was seised of the Advowson in gross and presented whereas I noted the Original Case in the Book is that he counted only upon his Presentation and probably it was so for the reasons given in Digbies Case by the Lord Hobart that a bare Presentment is only militant when so alledged by the Plaintiff and may be in such a Case as may prove the Defendant to have right of presenting at the present avoidance if no right be alledged by the Plaintiff why he should present Whence I collect that in both these cases of 10 H. 7. and this of the L. Buckhursts though there were a manifest inconsistency in the first Case between the Plaintiffs Count that he was seised of the Advowson in gross and presented and the Defendants Title that he was seised of a Mannor to which the Advowson was appendant for it was impossible it should be appendant for the Defendant and in gross for the Plaintiff And in the L. Buckhursts Case who counted that he was seised of the Rectory of Westfield to which the Advowson of the Vicaridge belong'd and the Defendant made Title that he was seised of the Advowson in gross which Titles were directly inconsistent yet neither the Seisin in gross in the first Case nor the appendency in the last Case were traversable but the Presentation of the Plaintiffs in both which made their immediate Titles to present at the next avoidance whether there were a Seisin in gross or an appendency or not when they first presented As in these 2 Cases the true reason of the Law appears why the Seisin in gross of the Advowson nor the appendency of the Advowson alledged by the Plaintiffs were not traversable but only the Presentation Hob. Digbies Case f. 103. By these Cases the Lord Hobarts scruple in Digbies Case is satisfied where he thinks that if a man hath gained a Title by Vsurpation at the next avoidance he must not declare that he was seised in Fee formerly of the Advowson and presented but must declare specially of the true Patrons former Presentation and then the Church becoming void that himself presented lest otherwise he declaring that he was seised of the Advowson in Fee the Defendant should trice him by traversing his Seisin which was false when in truth he had a right to present by Vsurpation for by these Cases it is clear that the Seisin in gross nor appendenâ—y are traversable though alledged by the Plaintiff when he hath gained a Title by Usurpation but the Presentation
f. 33. Letter H. if he cannot alledge a Presentation in himself or in his Ancestor or in another person through whom he claims the Advowson and that in his Count unless it be in a special Case Then puts that special Case As if a man at this day by the Kings Licence makes a Parochial Church or other Chantry which shall be presentable if he be disturbed to present to it he shall have a Quare Impedit without alledging any presentment in any person and shall Count upon the special Matter And the Law in this is the same in Case of the King with a Common Person by all the Books and Presidents in the Books of Entry To this add the Lord Hobarts Judgment which is alwaies accurate for the true reason of the Law Know that though it be true that a Presentation may make a Fee without more as a Presentation by Vsurpation doth that you never have a Declaration in a Quare Impedit L. Hobart Digby's Case f. 101. that the Plaintiff did present the last Incumbent without more but you declare that the Plaintiff was seis'd in Fee and presented or else lay the Fee-simple in some other and then bring down the Advowson to the Plaintiff either in Fee or some other estate The reason is That the Presentment alone is militant and indifferent and may be in such a Title as may prove that this new Avoidance is the Defendants and therefore you must lay the Case so as by the Title you make the Presentation past joyn'd to your Title shall prove that this Presentation is likewise yours as well as the last Whence it follows That to Count of an Estate and Seisin without a Presentation or of a Presentation without an Estate are equally vicious and naught be it in the Case of the King or of a Common Person and was never in Example or President 2. A second necessary Premise is this and is both natural and manifest When you will recover any thing from me it is not enough for you to destroy my Title but you must prove your own better than mine For it is not rational to conclude you have no right to this and therefore I have for without a better right melior est conditio possident is regularly Hobar 1. f. 162. Colt Glovers Case ad sinem paginae 3. Every Defendant may plead in a Quare Impedit the General Issue which is ne disturba pas because that Plea doth but defend the wrong wherewith he stands charg'd and leaves the Plaintiffs Title not only uncontroverted but in effect confess'd and the Plaintiff may upon that Plea presently pray a Writ to the Bishop or at his choice maintain the Disturbance for damages Hob. Digby versus Fitzherbert f. 103. 104. But if a man will leave the General Issue and controvert the Plaintiffs Title he must then enable himself by some Title of his own to do it but yet that is not the principal part of his Plea but a formal Inducement only And therefore there is no sense if you will quarrel my possession and I to avoid your Title effectually do induce that with a Title of my own that you shall fly upon my Title and forsake your own for you must recover by your own strength and not by my weakness The Lord Hobart goes further in giving the reason of this course of Pleading in Colt and Glovers Case in the place before cited of this form of pleading in Law there is one reason common to other Actions wherein Title is contain'd to the Land in question specially which is that the Tenant shall never be receiv'd to Counter-plead but he must make to himself by his Plea a Title to the Land and so avoid the Plaintiffs Title alledg'd by Traverse or confessing and avoiding But in the Quare Impedit there is a further reason of it for therein both Plaintiff and Defendant are Actors one against another and therefore the Defendant may have a Writ to the Bishop as well as the Plaintiff which he cannot have without a Title appearing to the Court And so are the Presidents Rastal L. Intratio f. 484. a.b. when a Quare Impedit is brought against the Patron for disturbance of his Clerk not being in possession The Case in brief and the Question upon it Vpon the Record as it hath been open'd and the pleading therein between the King and the Patron upon which all the Question ariseth first I shall not make the Question to be Whether there may be a Traverse taken upon a Traverse though that Question be in truth in the Case for that is a Question rather upon terms of Art than a Questio Forensis and rising upon the naked fact of a Case depending in Iudgment I shall therefore make the Question upon this Case such as nakedly it is without involving it in any difficulty of terms The King brings a Quare Impedit and declares That Queen Elizabeth was seis'd of the Advowson of the Church of Norfield in gross as of Fee and presented and derives the Advowson to himself and the Church became void by the death of the Queens Presentee and he is disturbed to present by the Defendant Jervis The Defendant saith That before the Queen presented R. Jervis his Ancestor was seis'd in Fee of the Mannor of Norfield to which the Advowson of this Church is appendant that it became void by the death of one Squire and continued so for two years and that the Queen then presented White her Clerk by lapse That the Mannor and Advowson descended from Richard to Thomas Jervis from Thomas to Sir Thomas Jervis who granted the next avoidance to one Phineas White who presented upon the death of James White one Timothy White who was instituted and inducted and then derives the Mannor and Advowson to himself and that the Church becoming void upon the death of the said Timothy he presented the other Defendant Hunckley and Traverseth the Queens Seisin of the Advowson in gross The Law in Case of a Common Person If a Common Person brings a Quare Impedit and counts his Title to present and that he is disturbed The Defendant to counter-plead the Plaintiffs Title makes as he must a Title to himself to present and confesses and avoids or Traverseth the Plaintiffs Title 1. The Plaintiff shall never desert his own Title and by falling upon and controverting the weakness only of the Defendants Title ever recover or obtain a Writ to the Bishop though the Defendants Title do not appear to the Court to be sufficient for the unanswerable Reasons given by the Lord Hobart in the first place 2. If you will recover any thing from another man it is not enough for you to destroy his Title but you must prove your own better than his 3. There is no sense if you will quarrel my Possession or Right and I to avoid your Title effectually either by Traversing it which is denying or confessing and avoiding
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
Case the Executor opposed the Action by offering to demurr and for any thing appearing he did so in the first 41 E. 3. f. 13. The other Case is 41 E. 3. f. 13. where an Action upon the Testators simple Contract was brought against an Executor and the Executor of a Co-executor to him the Writ was abated for that Reason and said withal There was no Specialty shewed but the first reason abating the Writ necessarily it no waies appears the Iudges would ex officio have abated the Action for the last Cause if the Executor desired it not So as when the Executor or Administrator hath once pleaded to an Action of Debt upon a single Contract he is equally bound up for the event as in any Action wherein the Testator or Intestate could not have waged Law It is therefore an ill Consequence for the Plaintiff to say I have brought an Action upon a simple Contract wherein the Intestate could not have waged his Law Therefore I must be paid before another Creditor by simple Contract bringing an Action wherein the Intestate might wage his Law for it is in the Administrators power by omitting to abate the Writ at first to make the Debt demanded by Action in which the Intestate might have waged his Law to be as necessarily and coercively paid as the other Debt demanded by Action wherein he could not wage his Law And if the Executor believes the Debt by simple Contract demanded by Action of Debt to be a just Debt it is against honesty conscience and the duty of his Office to demurr whereby to delay or prevent the payment of it Besides though since that illegal Resolution of Slade's Case grounded upon Reasons not fit for a Declamation much less for a Decision of Law The natural and genuine Action of Debt upon a simple Contract be turned into an Action of the Case wherein a man is deprived of waging his Law It is an absurd Opinion to think that therefore Debt demanded by it ought to have precedency for payment of a Debt due by simple Contract but quite the contrary For Actions of the Case are all Actiones injuriarum contra pacem and it is not a Debt certain in reason of Law that can be recovered by those Actions but damage for the injury ensuing upon the breach of promise which cannot be known until a Iury ascertain what the damage is Therefore a man did never wage his Law for a demand incertain for he could not make Oath of paying that which he knew not what it was as consisting in damage Now although the Iury give in damages regularly the money promised to be paid yet that changeth not the reason of the Law nor the form for still it is recovered by way of damage and not as a Debt is recovered Which shew the Action much inferiour and ignobler than the Action of Debt which by the Register is an Action of property and no reason a damage uncertain in its own nature should be paid before a certain Debt by simple Contract which were the first Debts and will probably be the last of the World for Contracts by writing were much later and there are many Nations yet where Letters are unknown and perhaps ever will be And that which is so commonly now received That every Contract executory implies a promise is a false Gloss thereby to turn Actions of Debt into Actions on the Case For Contracts of Debt are reciprocal Grants A man may sell his black Horse for present mony at a day to come and the Buyer may the Day being come seize the Horse for he hath property then in him which is the reason in the Register that Actions in the Debet and also in the Detinet are Actions of Property but no man hath property by a breach of promise but must be repair'd in damages The last Exception was That a Recognizance in the nature of a Statute Staple of 2000 l. in the Chancery is pleaded in Barr. And it is not said That it was per scriptum Obligatorium or seal'd as the Statute of 23 H. 8. requires nor that it was secundum formam Statuti Cr. 10 Car. 1. f. 362. Goldsmiths Case versus Sydnor And Goldsmith and Sydnors Case was urg'd to be adjudg'd in the point which Case is so adjudg'd by the Major part of the Court. But in that Case it is pleaded that Sydnor before the Chief Justice of the Common Pleas concessit se teneri Ed. Hobert in 400 l. to be paid at Pentecost next ensuing si defecerit c. voluit concessit per idem scriptum quod incurreret super se haeredes Executores poena in Statuto Stapulae So as it appears The Recognizance was taken before the Chief Justice of the Common Pleas and that the Conuzor was to incurr the penalty of the Statute Staple and therefore a Recognizance in the nature of a Statute Staple was there intended to be pleaded but it was not pleaded that it was taken secundum formam Statuti in general nor specially per scriptum Obligatorium under Seal as it ought to be But here it is not pleaded That the Conuzor was to incurr the penalty of the Statute Staple nor that it was taken before any person authorized to take a Recognizance in the nature of a Statute Staple by the Statute of 23 H. 8. c. 6. for the Chancellor is not so authorized But that it was a bare Recognizance entred into in the Court of Chancery which all Courts of Westminster have power to take and that it remains there inroll'd And that the said Sum of Two thousand pounds should for default of payment be levied of the Conuzors Lands Goods and Chattels and Execution of such Recognizances are to be made by Elegit of the Lands as well as Goods And it appears by the Statute of Acton Burnell 13 E. 1. which is the Law for the Statute Merchant That such Recognizances for Debt were before the Statute Merchants taken by the Chancellor the Chief Justices and Judges Itinerant but the Execution of them not the same as of the Statute Merchant nor are they hindered by that Statute from being as before expresly And in 4 Mariae upon a great search of Presidents Br. Recognizance p. 20. Hill 4 Mar. It was resolv'd That every Iudge may take a Recognizance in any part of England both in Term and out of Term. The like Resolution was in the Lord Hobart's time Hob. f. 195. Hall Wingfields Case So as the Recognizance here pleaded is not a Recognizance in the nature of a Statute Staple nor so pleaded but a Recognizance entred into in the Court of Chancery as Recognizances are entred into in the Court of Common Pleas or Kings Bench and as they were entred before Recognizances by Statute Merchant or Staple But Such Recognizances are to be satisfied before Debts by simple Contracts and before Debts by Obligations also Rolls Executors f. 925.
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
ipso facto but after six Months after notice of such deprivation given by the Ordinary to the Patron By these Clauses immediately upon not reading the Articles according to the Statute the Incumbent is depriv'd ipso facto And the Patron may presently upon such Deprivation present if he will and his Clerk ought to be admitted and instituted but if he do not no lapse incurrs until after six months after notice of the Deprivation given to the Patron by the Ordinary who is to supply the Cure until the Patron present Another Clause of the Statute is No person shall hereafter be admitted to any Benefice with Cure except he then be of the Age of Three and twenty years at the least and a Deacon and shall first have subscribed the said Articles in the presence of the Ordinary c. And relative to this Clause there is a third That all Admissions to Benefices Institutions and Inductions of any person contrary to any provision of this Act shall be utterly void in Law as if they never were Now though the Church of Wringlington became void immediately of what value soever it were by admission and institution of the Defendant into the Church of Elme by the ancient Canon Law receiv'd in this Kingdom which is the Law of the Kingdom in such Cases if the Patron pleas'd to present And for that the Patron accordingly did within a month after the Defendants Admission and Institution into the Rectory of Elme present his Clerk Hugh Ivy to the Church of Wringlington who was thereto Admitted Instituted and Inducted within that time which was a month before the Defendant was depriv'd for not reading the Articles in the Church of Elme Whereby any Interest the Defendant had to Wringlington was wholly avoided as the Case is Yet if the Church of Wringlington had been under value and the Patron had not presented to it his Clerk before Higden's Deprivation of the Church of Elme he might not have still continued Parson of Wringlington as if never Admitted Instituted or Inducted to the Rectory of Elme But if he had not subscribed the Articles before the Ordinary upon his Admission and Institution to the Rectory of Elme he had never been Incumbent of Elme and consequently never accepted a second Benefice to disable him of holding the first And so it is resolv'd in the last Case of the Lord Dyer 23 of the Queen where a man having a Living with Cure under value accepted another under value also having no Qualification or Dispensation and was Admitted Instituted and Inducted into the Second but never subscribed the Articles before the Ordinary as the Statute of 13. requires Vpon question whether the first Living vacavit per mortem of him or not the Court resolv'd That the first Living became vacant by his death and not by accepting the second because he was never Incumbent of the second for not subscribing the Articles before the Ordinary whereby his Admission Institution and Induction into the second Living became void as if they had never been This Case was urg'd at the Barr for the Defendant as if his not reading the Articles within two months after his Induction into Elme had still as in the Lord Dyers Case left him Incumbent of the first Living But that was mistaken for not subscribing the Articles made that he never was Incumbent of the second Living and consequently then there was no cause to lose the first But the Defendant having subscribed the Articles upon his Admission and Institution was perfect Incumbent pro tempore of the second Living and thereby lost the first and afterwards lost the second for not reading the Articles within two months after his Induction so as he was compleat Incumbent by Admission Institution and Induction of the second Living full two months before he lost it It was upon this Clause of the Statute smartly urg'd by my Brother Baldwyn That if the Statute makes the Defendants Admission Institution and Induction to the second Living void as if they had never been For what reason doth he not still retain his first The Answer is as before 1. That his not retaining the first is no effect nor consequent of his losing the second But the first was lost because he accepted a second and the right Patron thereupon presented to the first so as he lost the first whilst he was and for being lawful Incumbent of the second And therefore could be no effect nor consequent at all proceeding from his loss of the second by not reading the Articles after more than if he had lost the second by Deprivation for Heresie or other cause 2. The Clause of 13. is not That all Admissions Institutions and Inductions to Benefices where any person is depriv'd by virtue of that Act shall be void as if they never were for so should the Clause have been to warrant the Objection made at the Barr. But the Clause is That all Admissions Institutions and Inductions made contrary to any provision of the Act shall be void as if they never were But Higden's Admission Institution and Induction to the Church of Elme was not contrary to any provision of the Act but every way legal but had he not subscribed the Articles before the Ordinary then his Admission Institution and Induction had been contrary to the provision of the Act and so void as if they never were The Chief Justice delivered the Opinion of the Court and Judgment was given for the Plaintiff Bushell's Case THE King 's Writ of Habeas Corpus Dat. 9 die Novembris 22 Car. 2. issued out of this Court directed to the then Sheriffs of London to have the Body of Edward Bushell by them detained in Prison together with the day and cause of his Caption and Detention on Friday then next following before this Court to do and receive as the Court should consider as also to have then the said Writ in Court Of which Writ Patient Ward and Dannet Foorth then Sheriffs of London made the Retorn following annex'd to the said Writ That at the Kings Court of a Session of Oyer and Terminer held for the City of London at Justice Hall in the Old Baily London in the Parish of St. Sepulchres in Farringdon Ward without London on Wednesday 31 die August 22 Car. 2. before Sir Samuel Sterling then Mayor of London and divers other his Majesties Justices by virtue of his Majesties Letters Patents under the Great Seal of England to them any four or more of them directed to enquire hear and determine according to the tenor of the said Letters Patents the Offences therein specified And amongst others the Offences of unlawful Congregating and Assemblies within the limits appointed by the said Commission within the said City as well within Liberties as without Edward Bushel the Prisoner at the Barr was committed to the Goal of Newgate to be there safely kept under the Custody of John Smith Knight and James Edwards then Sheriffs of the said City
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
England or into parts not of the Dominion of England nor follows it because Goods were intended to be sold that is as Merchandise in a place where good market was for them that they were intended to be sold at any other place where no profit could be made or not so much or where such Goods were perhaps prohibited Commodities therefore the words of the Act brought as Merchandise must mean that the Goods are for Merchandise at the place they are brought unto And Goods brought or imported any where as Merchandise or by way of Merchandise that is to be sold must necessarily have an Owner to set and receive the price for which they are sold unless a man will say That Goods can sell themselves and set and receive their own prises But wreck Goods imported or brought any where have no Owner to sell or prize them at the time of their importation and therefore are not brought by way of or as Merchandise to England or any where else Secondly Though in a loose sense inanimate things are said to bring things as in certain Seasons Rain to bring Grass in other Seasons some Winds to bring Snow and Frost some Storms to bring certain Fowl and Fish upon the Coasts Yet when the bringing in or importing or bringing out and exporting hath reference to Acts of Deliberation and Purpose as of Goods for sale which must be done by a rational Agent or when the thing brought requires a rational bringer or importer as be it a Message an Answer an Accompt or the like No man will say That things to be imported or brought by such deliberative Agents who must have purpose in what they do can be intended to be imported or brought by casual and insensible Agents but by Persons and Mediums and Instruments proper for the actions of reasonable Agents Therefore we say not That Goods drown'd or lost in passing a Ferry a great River an arm of the Sea are exported though carried to Sea but Goods exported are such as are convey'd to Sea in Ships or other Naval Carriage of mans Artifice and by like reason Goods imported must not be Goods imported by the Wind Water or such inanimate means but in Ships Vessels and other Conveyances used by reasonable Agents as Merchants Mariners Sailors c. whence I conclude That Goods or Merchandise imported within the meaning of the Act can only be such as are imported with deliberation and by reasonable Agents not casually and without reason and therefore wreck'd Goods are no Goods imported within the intention of the Act and consequently not to answer the Kings Duties for Goods as Goods cannot offend forfeit unlade pay Duties or the like but men whose Goods they are And wreck'd Goods have not Owners to do these Offices when the Act requires they should be done Therefore the Act intended not to charge the Duty upon such Goods Judgment for the Plaintiff The Chief Justice delivered the Opinion of the Court. Hill 23 24 Car. II. C. B. Rot. 695. Richard Crowley Plaintiff In a Replevin against Thomas Swindles William Whitehouse Roger Walton Defendants THE Plaintiff declares That the Defendants the Thirtieth of December 22 Car. 2. at Kings Norton in a place there called Hurley field took his Beasts four Cows and four Heifers and detain'd them to his damage of Forty pounds The Defendants defend the Force And as Bailiffs of Mary Ashenhurst Widow justifie the Caption and that the place contains and did contain when the Caption is suppos'd Twenty Acres of Land in Kings Norton aforesaid That long before the Caption one Thomas Greaves Esquire was seis'd of One hundred Acres of Land and of One hundred Acres of Pasture in Kings Norton aforesaid in the said County of Worcester whereof the Locus in quo is and at the time of the Caption and time out of mind was parcel in his demesne as of Fee containing Twenty Acres That he long before the Caption that is 18 die Decemb. 16 Car. 1. at Kings Norton aforesaid by his Indenture in writing under his Seal which the Defendants produce dated the said day and year in consideration of former Service done by Edmond Ashenhurst to him the said Thomas did grant by his said Writing to the said Edmond and Mary his Wife one yearly Rent of Twenty pounds issuing out of the said Twenty Acres with the Appurtenances by the name of all his Lands and Hereditaments scituate in Kings Norton aforesaid Habendum the said Rent to the said Edmond and Mary and their Assigns after the decease of one Anne Greaves and Thomas Greaves Vncle to the Grantor or either of them which first should happen during the lives of Edmond and Mary and the longer liver of them at the Feasts of the Annunciation of the blessed Virgin Mary and St. Michael the Arch angel by equal portions The first payment to begin at such of the said Feasts as should first happen next after the decease of the said Anne Greaves and Thomas the Vncle or either of them That if the Rent were behind in part or in all it should be lawful for the Grantees and the Survivor of them to enter into all and singular the Lands in King's Norton of the Grantor and to distrain and detain until payment By vertue whereof the said Edmond and Mary became seis'd of the said Rent in their Demesne as of Free hold during their Lives as aforesaid The Defendants say further in Fact That after that is to say the last day of February in the Two and twentieth year of the now King the said Anne Greaves and Thomas the Vncle and Edmond the Husband died at King's Norton That for Twenty pounds of the said Rent for one whole year ending at the Feast of Saint Michael the Arch-Angel in the Two and twentieth year of the King unpaid to the said Mary the Defendants justifie the Caption as in Lands subject to the said Mary's Distress as her Bailiffs And averr her to be living at King's Norton aforesaid The Plaintiff demands Oyer of the Writing Indented by which it appears That the said Annuity was granted to Edmond and Mary and their Assigns in manner set forth by the Defendants in their Conuzance But with this variance in the Deed And if the aforesaid yearly Rents of Ten pounds and of Twenty pounds shall be unpaid at any the daies aforesaid in part or in all That it shall be lawful for the said Edmond and Mary at any time during the joynt natural Lives of the said Anne Greaves and Thomas Greaves the Uncle if the said Edmond and Mary or either of them should so long live and as often as the said Rents of Twenty pounds or any parcel should be behind to enter into all the said Thomas Greaves the Grantors Lands in King's Norton aforesaid and to Distrain Vpon Oyer of which Indenture the Plaintiff demurrs upon the Conuzance Two Exceptions have been taken to this Conuzance made by the Defendants The first for that
arrear and impounded them And Traverseth the Conversion and taking in other manner Vpon Demurrer to this Plea all the Court held the Plea to be bad and gave Iudgment for the Plaintiff 1. Because the Rent was determined by the death of the Grantee because no Occupant could be of it 2. Because the Feme was no Assignee by her taking of Administration 3. None can make title to a Rent to have it against the terr Tenant unless he be party to the Deed or make sufficient title under it Moore 664. p. 907. Salter vers Boteler The same Case is in Moore reported to be so adjudg'd because the Rent was determined by the death of the Grantee and Popham said That if a Rent be granted pur auter vie the Remainder over to another and the Grantee dies living Cestuy que vie the Remainder shall commence forthwith because the Rent for life determined by the death of the Grantee which last Case is good Law For the particular Estate in the Rent must determine when none could have it and when the particular Estate was determined the Remainder took place And as the Law is of a Rent so must it be of any thing which lies in Grant as a several Tithe doth whereof there can be no Occupant when it is granted pur auter vie and the Grantee dies in the life of Cestuy que vie 20 H. 6. f. 7 8. This is further cleared by a Case in 20 H. 6. A man purchas'd of an Abbot certain Land in Fee-farm rendring to the Abbot and his Successors Twenty pounds yearly Rent If all the Monks dye this Rent determined because there is none that can have it It lies not in Tenure and therefore cannot Escheat and though new Monks may be made it must be by a new Creation wholly In vacancy of a Parson or Vicar the Ordinary ex officio shall cite to pay the Tithes Fitz. N. Br. Consultation Lett. G. This Case agrees exactly with the Grant of a Rent or other thing which lies in Grant pur auter vie the Grantee dying the Rent determines though it were a good Grant and enjoyed at first yet when after none can have it it is determined So was the Rent to the Abbot and his Successors a good Rent and well enjoyed But when after all the Covent died so as none could have the Rent for the Body Politique was destroyed the Rent determined absolutely By this I hold it clear That if a man demise Land to another and his Heirs habendum pur auter vie or grant a Rent to a man and his Heirs pur auter vie though the Heir shall have this Land or Rent after the Grantees death yet he hath it not as a special Occupant as the common expression is for if so such Heir were an Occupant which he is not for a special Occupant must be an Occupant but he takes it as Heir not of a Fee but of a descendible Freehold and not by way of limitation as a Purchase to the Heir but by descent though some Opinions are that the Heir takes it by special limitation as when an Estate for life is made the Remainder to the right Heirs of J. S. the Heir takes it by special limitation if there be an Heir when the particular Estate ends But I see not how when Land or Rent is granted to a man and his Heirs pur auter vie the Heir should take by special limitation after the Grantees death when the whole Estate was so in the first Grantee that he might assign it to whom he pleas'd and so he who was intended to take by special limitation after the Grantees death should take nothing at all But to inherit as Heir a descendible Freehold when the Father or other Ancestor had not dispos'd it agrees with the ancient Law as appears by Bracton which obiter in Argument is denied in Walsinghams Case Si autem fiat donatio sic Bract. l. 2. de acquirendo rerum dominico c. 9. Ad vitam donatoris donatorio haeredibus suis si donatorius praemoriatur haeredes ei succedent tenendum ad vitam donatoris per Assisam mortis Antecessoris recuperabunt qui obiit ut de feodo Here it is evident That Land granted to a man and his Heirs for the life of the Grantor the Grantee dying in the life of the Grantor the Heirs of the Grantee were to succeed him and should recover by a Writ of Mordancester in case of Abatement which infallibly proves the Heir takes by descent who died seis'd as of a Fee but not died seis'd in Fee 1. Hence I conclude That if a man dye seis'd pur auter vie of a Rent a Tithe an Advowson in gross Common in gross or other thing whereof there can be no Occupancy either directly or by consequence as adjuncts of something else by the death of the Grantee in all these Cases the Grant is determined and the Interest stands as before any Grant made 2. If any man dye seis'd of Land pur auter vie as also of many of these things in gross pur auter vie by distinct Grant from the Land The Occupant of the Land shall have none of these things but they are in the same state and the Grants determine as if the Grantee had died seis'd of nothing whereof there could be any occupancy But I must remember you that in this last part of my Discourse where I said That if a Rent a Tithe a Common or Advowson in gross or the like lying in Grant were granted pur auter vie and the Grantee died living Cestuy que vie that these Grants were determin'd my meaning was and is where such Rent Tithe or other things are singly granted and not where they are granted together with Land or any other thing out of which Rent may issue with Reservation of a Rent out of the whole For although a Rent cannot issue out of things which lye in Grant as not distrainable in their nature yet being granted together with Land with reservation of a Rent though the Rent issue properly and only out of the Land and not out of those things lying in Grant as appears by Littleton yet those are part of the Consideration for payment of the Rent Cok. Litt. f. 142. a. 144. a. as well as the Land is In such case when the Rent remains still payable by the Occupant it is unreasonable that the Grant should determine as to the Tithe or as to any other thing lying in Grant which passed with the Land as part of the Consideration for which the Rent was payable and remain to the Lessor as before they were granted for so the Lessor gives a Consideration for paying a Rent which he enjoys and hath notwithstanding the Consideration given back again And this is the present Case being stript and singled from such things as intricate it That Doctor Mallory Prebend of the Prebendary of Woolney consisting of Glebe-land
a House Barns and Tithe of Woolney and thereof seis'd in the right of his Prebendary makes a Lease to Astly of the Prebend una cum the Glebe House Barn and Tithe for Three Lives rendring the accustomed and ancient Rent of Five pounds Twelve shillings Astly demiseth to Taverner the House Glebe and Barn for a year reserving Twenty shillings and dies the Cestuy que vies living As I concluded before Taverner is Occupant of the House Barn and Glebe-land and consequently lyable to pay the whole Rent being Five pounds twelve shillings yearly though the Land House and Barn be found of the yearly value of Twenty shillings only but because the Rent cannot issue out of Tithes or things that lye in Grant it issues only out of the House Barn and Land which may be distrain'd on 2. If Taverner being Occupant of the Land shall not have the Tithes which remain'd in Astly according to his Lease for three Lives at the time of his death and whereof by their nature there can be no direct Occupancy It follows that the Lease made by Doctor Mallory is determin'd as to the Tithe for no other can have them yet continues in force as to the Land and House and all the Rent reserv'd which seems strange the Land and Tithe being granted by the same Demise for three Lives which still continue yet the Lease to be determined as to part 3. Though the Rent issue not out of the Tithe yet the Tithe was as well a Consideration for the payment of the Rent as the Land and Houses were and it seems unreasonable that the Lessor Doctor Mallory should by act in Law have back the greatest Consideration granted for payment of the Rent which is the Tithe and yet have the Rent wholly out of the Land by act in Law too which cannot yield it 4. Though Doctor Mallory could not have reserv'd a Rent out of the Tithe only to bind his Successor upon a Lease for Lives more than out of a Fair though it were as the ancient Rent and had been usually answered for the Fair as is resolv'd in Jewel Bishop of Sarum's Case Jewell's Case 5 Rep. Yet in this Case where the Tithe together with Land out of which Rent could issue was demis'd for the accustomed Rent the Successor could never avoid the Lease either in the whole or as to the Tithe only 13 Eliz. c. 10. This seems clear by the Statute of 13 Eliz. cap. 10. which saith All Leases made by any Spiritual or Ecclesiastical persons having any Lands Tenements Tithes or Hereditaments parcel of the Possessions of any Spiritual Promotion other than for One and twenty years or three Lives whereupon the accustomed yearly Rent or more shall be reserv'd shall be void Cokes Litt. f. 142. a. f. 144. a. Whence it is apparent this Statute intended that Leases in some sense might be made of Tithes for One and twenty years or Three Lives and an ancient Rent reserv'd but of a bare Tithe only a Rent could not be reserv'd according to Jewell's Case for neither Distress nor Assise can be of such Rent though an Assise may be de Portione Decimarum as is clear by the Lord Dyer 7 E. 6. and the difference rightly stated Therefore a Lease of Tithe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intention of the Statute or Tithe could in no sense be demis'd 5. Taverner the Lessee being Occupant here by his possession becomes subject to the payment of the Rent to Waste to Forfeiture Conditions and all things that Astly the Lessee or his Assignee if he had made any had been subject to Also Coke's Litt. 41. He must claim by a que Estate from Astly he must averr the Life of Cestuy que vie so as he becomes to all intents an Assignee in Law of the first Lessee 6. Without question the Occupant being chargeable with the Rent shall by Equity have the Tithe which was the principal Consideration for payment of the Rent when no man can have the benefit of the Tithe but the Lessor Doctor Mallory who gave it as a Consideration for the Rent which he must still have Therefore I conceive the Reason of Law here ought necessarily to follow the Reason of Equity and that the Occupant shall have the Tithe not as being immediate Occupant of the Tithe whereof no occupancy can be but when by his possession of the Land he becomes Occupant and the Law casts the Freehold upon him he likewise thereby becomes an Assignee in Law of Astly's Lease and Interest and consequently of the Tithe An ancient Rent reserv'd within the Statute of 1. or 13. of the Queen upon a Lease of One and twenty years or Three Lives is by express intention of that Statute a Rent for publique use and maintenance of Hospitality by Church-men as is resolv'd in Elsemere's Case Elsmers C. 5. Rep. the 5. Rep. and therefore if the Lessee provide not an Assignee to answer the Rent to the Successors of the Lessor for the ends of that Law the Law will do it for him and none fitter to be so than the Occupant in case of a Lease pur auter vie as this is And if the Occupant being Assignee hath pass'd all his Estate and Interest to the Plaintiff hath good cause of Action for the Tithe converted by the Defendant Pasch 22 Car. II. Judgment for the Defendant Three Justices against the Chief Justice Trin. 20 Car. II. C. B. Rot. 2043. Harrison versus Doctor Burwell In a Prohibition for his Marriage with Jane the Relict of Bartholomew Abbot his Great Uncle The Questions are Quest 1 WHether the marriage of Thomas Harrison the Plaintiff with Jane his now wife being the Relict of Bartholomew Abbot his great Vncle that is his Grand-fathers Brother by the Mothers side be a lawful marriage within the Act of 32 H. 8. cap. 38 Quest 2 Admitting it to be a lawful marriage within the meaning of that Act Whether the Kings Temporal Courts are properly Judges of it because the unlawfulness or lawfulness of it by that Act doth depend upon its being a marriage within or without the Levitical Degrees For if within those Degrees it is not a lawful marriage by that Act. And the right knowledge of marriages within or without those Degrees must arise from the right knowledge ot the Scriptures of the Old Testament specially the Interpretation of which hath been and regularly is of Ecclesiastick Conizance and not of Lay or Temporal Conizance in regard of the Language wherein it was writ and the receiv'd Interpretations concerning it in all succession of time Quest 3 Admitting the Kings Temporal Courts have by that Act of 32. or any other special Conizance of the Levitical Degrees and of marriages within them And though this be no marriage within the Levitical Degrees it being articled in general to be an Incestuous marriage
not the Land devis'd to him when the son and the two daughters dye without Issue of their respective bodies by way of Remainder which cannot be but by way of Executory devise which well may be 5. That by such Executory devise no perpetuity is consequent to it or if it were such a perpetuity is no way repugnant or contrary to Law To manifest the difference taken between an implication in a Will that is necessary and implication that is only possible the first Case I shall cite is that known Case 13 H. 7. which I shall exactly put as it is in the Book at large 13 H. 7. f. 17. Br. Devise pl. 52. A man devis'd his Goods to his wife and that after the decease of his wife his son and heir shall have the House where his Goods are The son shall not have the House during the wives life for though it be not expresly devis'd to the wife yet his intent appears the son shall not have it during her life and therefore it is a good devise to the wife for life by implication and the Devisors intent Quod omnes Justitiarii concesserunt Here I observe 1. That this was a devise of the House to the wife by necessary implication for it appears by the Will that the Testators son and heir was not to have it until after the death of the wife and then it must either be devis'd to the wife for life by necessary implication or none was to have it during the wives life which could not be 2. I observe upon this Case That though the Goods were by particular devise given to the wife and expresly that was no hindrance to the wives having the House devis'd to her also by her husband by implication necessary which I the rather note because men of great name have conceiv'd That where the devisee takes any thing by express devise of the Testator such devisee shall not have any other thing by that Will devis'd only by implication Which difference if it were according to Law it makes clearly against the Plaintiff because his Lessor being one of the Daughters of the Testator had devis'd to her expresly for a Portion and therefore she should not have any Estate in the Land by the same Will by a Devise by Implication as is pretended But the truth is that is a vain difference that hath been taken by many as I shall anon evince and therefore I shall not insist upon any Aid from it to my conclusion 3. I note that this Devise being before the Statute of 32 H. 8. of Wills the House devis'd must be conceiv'd devisable by Custome at the Common Law Before I proceed further I must take notice that Brook in abridging the Case of 13 H. 7. in the same numero saith Devise Br. n. 52. It was agreed tempore H. 8. per omnes That if a man will that J. S. shall have his Land in Dale after the death of his wife the wife shall have the House for her life by his apparent intent I note first That this Case is imperfectly put in Brook for it mentions a devise of the Land in Dale to J. S. after the death of his wife and then concludes that the wife shall have the House for her life by his apparent intent whereas no mention is made of a House but of the Land in Dale in the devise And this Case seems to be only a memory of another Case Br. Devise 29 H. 8. n. 48. not abridg'd by Brook out of any other Year-book but reported in his Abridgment in the Title Devise as a Case happened in 29 H. 8. which is That if a man will that J. S. shall have his Land after the death of his wife and dies the wife of the Devisor shall have those Lands for term of her life by those words ratione intentionis voluntatis Which Cases being in truth but one and the same Case seem to go further than the Case of 13 H. 7. for there as I observ'd before the wife was to take by necessary implication because the Heir was excluded expresly by the Will during the life of the wife But by this Case in Br. Title Devise n. 48. 52. there is no excluding of the Heir and yet it is said the wife shall have the Land during her life by implication which is no necessary implication as in the Case of 13 H. 7. but only a possible implication and seems to cross that difference I have taken before But this Case of Br. hath many times been denied to be Law and several Iudgments have been given against it I shall give you some of them to justifie the difference I have taken exactly as I shall press the Cases Trinity 3 E. 6. A man seis'd of a Mannor part in Demesne 3 E. 6. Moore Rep. f. 7. n. 24. and part in Services devis'd all the demesne Lands expresly to his wife during her life and devis'd to her also all the Services and chief Rents for Fifteen years and then devis'd the whole Mannor to a stranger after the death of his wife It was resolved by all the Justices That the last devise should not take effect for any part of the Mannor but after the wives death but yet the wife should not have the whole Mannor by implication during her life but should have only the demesnes for her life and the Rent and Services for Fifteen years and that after the Fifteen years ended the Heir should have the Rents and Services as long as the wife liv'd Here being no necessary Implication that the wife should have all the Mannor during her life with an exclusion of the Heir she had no more than was explicity given her by the Will viz. the Demesnes for life and the Rents and Services for Fifteen years but after the Fifteen years the Heir had the Rents and Services for it could be no more at most but a possible Implication that the wife should have the whole Mannor during her life But with a small variance of this Case if the demesnes had been devis'd to the wife for life and the Services and Rents for Fifteen years and the whole Mannor after the wives life to J. S. and that after the wives life and the life of J. S. his Heir should have had the Demesnes and Services and Rents in that Case it had been exactly the same with the Case of 13 H. 7. because the Devisors intent had been then apparent that the Son was not to have the Mannor or any part until the wife and stranger were both dead and as it was adjudg'd the stranger had nothing in the Mannor until the wifes death therefore in that case by necessary implication the wife must have had both Demesnes and Services during her life notwithstanding the explicit devise to her of the Rents and Services for Fifteen years otherwise none should have had the Rents and Services after the Fifteen years
The first is Haynsworths and Prettyes Case Where a man seis'd of Land in Soccage having Issue two Sons and a Daughter devis'd to his youngest Son and Daughter Twenty pounds apiece to be paid by his eldest Son and devis'd his Lands to his eldest Son and his Heirs upon Condition if he paid not those Legacies that his Land should be to his second Son and Daughter and their Heirs The eldest Son fail'd of payment After Argument upon a Special Verdict It was resolv'd by the Court clearly That the second Son and Daughter should have the Land 1. For that the devise to his Son and his Heir in Fee Hill 41. El. Cr. 833. a. being no other then what the Law gave him was void 2. That it was a future devise to the second Son and Daughter upon the contingent of the eldest Sons default of payment 3. That it was no more in effect than if he had devis'd That if his eldest Son did not pay all Legacies that his land should be to the Legatories and there was no doubt in that Case but the land in default of payment should vest in them Which Case in the reason of law differs not from the present Case where the land is devis'd by devise future and executory to the Nephew upon a contingent to happen by the Testators Son and Daughters having no issue 18 Jac. Pell Browns C. Cro. f. 590. The second Case is that of Pell and Brown the Father being seis'd of certain land having Issue William his eldest Son Thomas and Richard Brown devis'd the land to Thomas and his Heirs for ever and if Thomas died without Issue living William then William should have the lands to him his Heirs and Assigns 1. This was adjudg'd an Estate in Fee-simple in Thomas 2. That William by way of Executory devise had an Estate in Fee-simple in possibility if Thomas died without Issue before him And it being once clear That the Estate of Thomas was a Fee-simple determinable upon a contingent and not an Estate tayl and so in the present case it being clear'd that George the Testators Son had the land descended to him in Fee from the Testator and took no Estate tayl expresly or by implication from the Will it will not be material whether the Contingent which shall determine that Fee-simple proceeds from the person which hath such determinable Fee or from another or partly from him and partly from another as in Haynsworth's Case the Son determined his Fee-simple by not paying the Legacies in Pell and Brown's Case Thomas his Fee-simple determined by his dying without Issue living William the Fee-simple vested in George the Son by descent determines when he and his two Sisters dye without Issue and upon such determination in every of these Cases the future and executory devise must take effect But the great Objection is That if this should be an executory devise to the Nephew upon the contingent of George the Son and both his Sisters dying without Issue It will be dangerous to introduce a new way of perpetuity for if a man have several Children and shall permit his Estate to descend or by his Will devise it to his Heir so as he may therein have an unquestionable Fee-simple which is the same with permitting it to descend he may then devise it futurely when all his Children shall dye without Issue of their bodies to J. S. and his Heirs as long as A. B. and C. strangers shall have any Heirs of their bodies living and then to a third person by like future devise For if he should devise it futurely to J. S. and his Heirs as long as J. S. had any Heirs of his body it were a clear Estate tayl in J. S. upon which no future devise could be but it would be a Remainder to be docked This Objection was in some measure made by Doderidge in Pell and Browns Case and the Iudges said there was no danger Vid. Stiles Rep. Gay Gaps Case 258 275. because the Estate in Fee of Thomas did not determine by his dying without Heir of his body generally but by dying without Issue living William for if the land had been given to Thomas and his Heirs for ever and if he died without Heirs of his body then to William and his Heirs Thomas his Estate had been judg'd an Estate tayl with the Remainder to William and not a Fee upon which no future or executory devise can be So was it adjudg'd in Foy and Hinds Case 22 Jac. Cr. f. 695. 6. and anciently 37 Ass p. 18. 5. H. 5. f. 6. and to be within the reason of Mildmay and Corbets Case of Perpetuities But in Pell and Browns Case the Iudges said it was more dangerous to destroy future devises than to admit of such Perpetuities as could follow from them any way by determinable Fee-simples which is true for a Fee simple determinable upon a contingent is a Fee-simple to all intents but not so durable as absolute Fee-simples And all Fee-simples are unequally durable for one will escheat sooner than another by the failer of Heirs An Estate of Fee-simple will determine in a Bastard with his life if he want Issue An Estate to a man and his Heirs as long as John Stiles hath any Heir which is no absolute Fee-simple is doubtless as durable as the Estate in Fee which John Stiles hath to him and his Heirs which is an absolute Fee-simple Nor do I know any Law simply against a Perpetuity but against Intails of Perpetuity for every Fee-simple is a perpetuity but in the accident of Alienation and Alienation is an incident to a Fee-simple determinable upon a contingent as to any more absolute or more perdurable Fee-simple The Chief Justice Justice Archer and Justice Wylde for the Defendant Justice Tyrrell for the Plaintiff Judgment for the Defendant Hill 21 22 Car. II. C. B. Craw versus Ramsey Philip Craw is Plaintiff and John Ramsey Defendant In an Action of Trespass and Ejectment THE Plaintiff declares That Lionel Tolmach Baronet and Humphrey Weld Esquire January the Twentieth the Sixteenth of the King demis'd to the Plaintiff the Mannor of Kingston with the appurtenances in the County of Surrey one Messuage two Barns one Dove-house two Gardens eighty Acres of Land and ten Acres of Meadow with the appurtenances in Kingston aforesaid and other places and also the Rectory of Kingston aforesaid To have and to hold to the said Philip and his Assignes from the Feast of the Nativity last past for five years next ensuing By virtue whereof he entred into the Premisses and was possessed until the Defendant the said Twentieth of January in the Sixteenth year of the King entred upon him and Ejected him with force to his Damage of Forty pounds To this the Defendant pleads he is not Culpable Vpon a Special Verdict it appear'd That Robert Ramsey Alien Antenatus had Issue 1. Robert 2. Nicholas 3. John 4. George Antenatos
Mothers But if a fiction could make a natural Subject he hath two natural Princes one where he was born and the other where naturalized 3. If one naturalized in Ireland should in law make him naturally born there then one naturalized in Scotland after the Vnion should make him naturally born there consequently inheritable in England which is not contended 4. A naturalized person in a Dominion belonging to England is both the King 's Subject when he is King of England and inheritable in that his Dominion when naturaliz'd So the Antenati of Scotland are the King of England's Subjects when he is King of England and inheritable in that Dominion of his yet cannot inherit in England and being his Subjects before doth not make them less his Subjects when King of England Or if it did Nicholas Ramsey before he was naturalized in Ireland and became there a Subject to the King of England was a Subject in Scotland of the Kings There are four ways by which men born out of England may inherit in England besides by the Statute of Edward the Third De Natis ultra Mare 1. If they be born in any Dominion of the Kings when he is actually King of England 2. If they be made inheritable by Act of Parliament in England as by naturalization there 3. If they be born Subjects to a Prince holding his Kingdom or Territories as Homager and Liegeman to the King of England Calvins Case f. 21. b. during the time of his being Homager So the Welch were inheritable in England before 12 Ed. 1. though Subjects to the Princes of Wales who were Homagers to the King of England So were the Scotch in Edward the First 's time during the King of Scotlands Homage to him and to other Kings of England as long as it continued And that is the reason of the Case in 14. of Eliz. in the Lord Dyer Dyer 14 Eliz. f. 304. pl. 51. where a Scotch-man being arraign'd for a Rape of a Girl under Seven years of Age and praying his Tryal per medietatem Linguae because he was a Scot born it was denied him by the Opinion of the Iudges of both Benches for that among other reasons a Scot was never accounted an Alien here but rather a Subject So are the words of the Book But they did not consider that the Homage was determined then as it was consider'd after in Calvin's Case when only the Postnati of Scotland were admitted inheritable in England Vpon the same ground one Magdulph Subject to the King of Scots appeal'd from his Iudgment to Edward the First Pl. Parl. 21 E. 1. f. 152. 157. ut Superiori Domino Scotiae But this is to be understood where such Prince is Homager Subjectionis and not only Infeodationis for another King may hold of the King of England an Island or other Territory by Tenure and not be his Subject 4. If the King of England enter with his Army hostilly the Territories of another Prince and any be born within the places possessed by the Kings Army and consequently within his Protection such person is a Subject born to the King of England if from Parents Subjects and not Hostile 5 Eliz. Dyer f. 224. pl. 29. So was it resolved by the Iustices 5 Eliz. That one born in Tourney in France and conquered by Henry the Eighth being a Bastard between persons that were of the King's liegeance was enabled to purchase and implead within the Realm and was the same as if a French-man and French-woman should come into England and have a Son born there The like law if he had been born of French Parents in Tourney for it was part of the Dominions belonging to England pro tempore as Calice was Those under the King's Power as King of England in another Prince his Dominions are under his Laws Fleta l. 2. c. 3. 14 E. 1. King Edward the First being at Paris 14 E. 1. one Ingelram de Nogent stole silver Dishes in the King's House there and after dispute about his Tryal with the King of France and his Council he was convicted before the Steward of the King of England's House and executed though the Felony was done in France in Aliero Regno Fleta l. 2. c. 3. 12 E. 1. So Edmund de Murdak brought an Appeal in Gascoigne coram Seneschallo Hospitii Regis Angliae against one William de Lesnes of Robbery done to him 12 E. 1. infra metas Hospitii Regis infra quas invenit ipsum And the Defendant non potuit appellum illud per exceptionem alterius Regni declinare 1. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament which is Common Experience But Ramsey was an Alien to England being Antenatus of Scotland and therefore cannot inherit here but by Act of Parliament If it be said there is an Exception to that viz. unless he be naturalized in Ireland that Exception must be well prov'd not suppos'd For the Question being Whether one naturalized in Ireland do thereby become as a Native of England must not be resolv'd by saying That he doth become as a Native of England otherwise it is prov'd only by begging the Question 2. The being no Alien in England belongs not to any made the King of Englands Subject by Act of Law when he is King of England but to such as are born so Natural legitimation respecteth actual Obedience to the Soveraign at the time of the birth Calvins Case f. 27. for the Antenati remain Aliens because they were born when there were several Kings of the several Kingdoms not because they are not by act of law afterwards become Subjects to the King of England by the Union of the Crowns But he that is naturaliz'd in Scotland or Ireland is not a Subject born to the King of England but made by a subsequent Act in law 3. And chiefly the manner of subjection of a Stranger naturaliz'd in Scotland or Ireland doth exactly agree with that of the Antenatus and not of the Postnatus For 1. The Antenatus was another Prince his Subject before he was the King of Englands 2. The Antenatus might have been an Enemy to England by a war between the several Kings before the Vnion So a Stranger naturalized in Scotland or Ireland was the natural Subject of some other Prince necessarily before he was naturaliz'd and then might have been an Enemy to the King of England by a war between his natural Soveraign and the King of England before he was naturalized But the Postnatus was never subject to any before he was the King of Englands nor ever in possibility of being an enemy to England both which are the properties of subjection in the native English Subject and is the reason why the Postnatus in England is as the Natives of England No fiction of Law can make a man a Natural Subject that is not for a Natural Subject and a Natural Prince are
Relatives and if an Act of Naturalization should thereby make a man a natural Subject the same Subject would have two natural Soveraigns one when he was born the other when naturalized which he can never have more then two Natural Fathers or two Natural Mothers except the Soveraigns be subordinate the Inferior holding his Kingdome as Liege Homager from the Superiour And perhaps in the Case of Severing the Kingdoms Calvins Case 27. as Sir Edward Coke saith Nor can an Act of Parliament in one place take away the natural subjection due to another Prince for want of power And the Law of England being That an Antenatus shall not inherit because an Alien without an Act of Parliament making him none The fiction of an Act in another Kingdom to which England never consented shall not alter the law here because he is made in Ireland as if born there If there were an Act of Parliament in England That persons naturalized in Ireland or Scotland should be no Aliens in England no man thinks that thereby Scotland or Ireland could naturalize a man in terminis in England But a man naturalized there would by consequent be naturalized in England because the law of England did warrant that consequent But to say That a man naturalized in Ireland is not directly naturalized in England but by consequent when the question is Whether one naturalized in Ireland be thereby naturalized in England is to beg for a proof that which is the question Therefore it must be first proved That there is a Law of England to warrant that consequent Inconveniences The Law of England is That no Alien can be naturalized but by Act of Parliament with the assent of the whole Nation 1. Now if this naturalization in Ireland should be effectual for England then a whole Nation should become Natives in England without Act of Parliament of what Country Religion or Manners soever they be by an Act of Ireland 2. If the Parliament of England should refuse to naturalize a number of men or Nation as dangerous or incommodious to the Kingdom yet they might be naturalized whether the Houses of Parliament would or not by an Act of Ireland 3. By this invention the King may naturalize in England without an Act of Parliament as well as he may Denizen for if the Parliament of Ireland enact That the King by Letters Patents shall naturalize in Ireland then they so naturalized in Ireland by Patent will be naturalized in England by consequent so they may enact the Deputy or Council of Ireland to naturalize 4. If an Alien hath Issue an Alien Son and the Father be denizen'd in England and after hath a Son born in England the Law hath been taken That the youngest Son shall inherit the Fathers Land Co. Litr. f. 8. a. Doct Stud. l. 1. Cr. 17 Jac. f. 539. Godfrey Dixons C. So is Sir Edward Coke Litr. f. 8. a. and other Books yet if the elder be naturaliz'd in Ireland the Estate which the youngest hath by the Law of England will be plucked from him Having thus opened the Inconveniences consequent to this Irish Naturalization the next is That Judges must judge according as the Law is not as it ought to be But then the Premisses must be clear out of the established Law and the Conclusion well deduc'd before great Inconveniences be admitted for Law But if Inconveniences necessarily follow out of the Law only the Parliament can cure them 1. I shall begin with the admitted Doctrine of Calvin's Case By that Case He that is born a Subject of the King of England in another Dominion than England is no Alien in England So the Scots born when the King of Scots was King of England are no Aliens those born before in Scotland are Therefore Nicholas Ramsey who is not born the Kings Subject of Ireland must be an Alien in England whose Law by the Rule of that Case makes only Subjects born and not made of another Dominion not to be Aliens in England 2. It is agreed to my hand That an Alien naturalized at this day in Scotland remains an Alien in England notwithstanding 3. By the Doctrine of Calvin's Case a natural born Subject to the Kings person of a Forraign Dominion is not priviledg'd in England from being an Alien else the Antenati of Scotland were priviledg'd for they are natural born Subjects to the Kings person as well as the Postnati 4. It stands not with the Resolution of that Case That the natural born Subjects of the Dominions belonging to the Crown of England qua such should be no Aliens in England which was the principal matter to have been discuss'd but was not in Calvin's Case and chiefly concerns the point in question The Case relied on to justifie the Iudgment in Calvins Case are several Authorities That the King of England's Subjects formerly were never accounted Aliens in England though they were all out of the Realm of England and many within the Realm of France But all these are admitted in that Case as most of them were Dominions belonging to the Crown of England and if so Of Normandy Brittain Aquitain Anjou Gascoigne Guien Calais Jersey and Gernsey Isle of Man Berwick and other Parts of Scotland Ireland Tourney c. What Inference could be made for the Resolution of Calvin's Case That because the Kings natural Subjects of Dominions belonging to the Crown of England as these did were no Aliens in England Therefore that Subjects of a Dominion not belonging to the Crown as the Postnati of Scotland are should be no Aliens in England Non sequitur Therefore it is for other reason then because natural Subjects of Dominions belonging to the Crown of England they were no Aliens by the meaning of that Resolution And the Adequate Reason being found out why they are not Aliens will determine the point in question 1. It was not because they were natural Subjects to him that was King of England for then the Antenati of Scotland would be no Aliens they being natural Subjects to him that is King of England as well as the Postnati 2. It was not because they were natural Subjects of Dominions belonging to the Crown of England for then the Postnati would be Aliens in England for they are not Subjects of a Dominion belonging to the Crown of England 3. It remains then the Reason can be no other but because they were born under the same Liegeance with the Subjects of England which is the direct reason of that Resolution in Calvins Case Calvins Case f. 18. b. a. The words are The time of the birth is of the essence of a Subject born for he cannot be a Subject to the King of England that is to be no Alien unless at the time of his birth he was under the Liegeance and Obedience of the King that is of England And that is the reason that Antenati in Scotland for that at the time of their birth they were not under the
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
retail or in gross to their best advantage in their houses or elsewhere Non obstante the Statute of 7 E. 6. They find the Act of 12 Car. 2. c. 25. and the confirmation of it concerning the giving Licences to retail Wine and the Proviso therein prout Provided also That this Act or any thing therein contained shall not extend or be prejudicial to the Master Wardens Freemen and Commonalty of the Mystery of Vintners of the City of London or to any other City or Town Corporate but that they may use and enjoy such Liberties and Priviledges as heretofore they have lawfully used and enjoyed They find That the Master Wardens Freemen and Commonalty of the Mystery of Vintners in the City of London was an ancient Corporation of the said City of London at the time of the Act of 12 Car. 2. and incorporated by the Name of Master Wardens Freemen and Commonalty of the Mystery of Vintners of the City of London They find That the Defendant three years before and during all the time in the Information used the Trade of retailing of Wine and kept a Tavern in the Parish of Stepney in the County of Middlesex was an Inhabitant there and that the Defendants house in which the said Wine was sold is within two miles of the City of London They find That the Defendant within the time in the Information mentioned did sell Ten pints of Sack as in the Information mentioned to be drunk and spent in his said dwelling house being a Tavern in the said Parish of Stepney They find That at the time of the sale of the said Wine and three years before the Defendant was a natural born Subject of the King and a Freeman of the City of London of the said Company of Vintners Si pro quer quoad 50 l. pro quer Si pro Def. pro Def. 1 s. Vpon this Special Verdict three Questions have been raised 1. Whether the Patent of 9 Jac. was not void in its Creation 2. Admitting it was not void in its Creation Whether it became void by the death of King James 3. If it were a good Patent in the Creation nor was void by the death of King James Whether the Proviso in the Act of 12 Car. 2. Saving all the Right of the Master Wardens Freemen and Commonalty of Vintners in the City of London hath preserved all that Right which they had by the Patent of 9 Jac. against the Act of 12 Car. 2 1. I conceive That if the Patent 9 Jac. were not void in the Creation it remained good after the death of King James 2. If it were not void in the Creation nor by the death of King James all Right that the Master Wardens Freemen and Commonalty of Vintners had by it is still preserved by the Proviso in the Act of 12 Car. 2. but if the Patent of 9 Jac. was void in its Creation or by the death of King James then the Proviso in the Act of 12 Car. 2. aids them not at all So as now it is only insisted on That the Patent of 9 Jac. was void in its Creation for two Reasons 1. For that the Law of 7 E. 6. was such a Law pro bono publico as the King could not dispence against it more than with some other penal Laws pro bono publico 2. If he could to particular persons he could not to the Corporation of Vintners and their Successors whose number or persons the King could never know and that it stood not with the trust reposed in him by the Law to dispense so generally without any prospect of number or persons The Books have been plentifully urg'd at the Barr and by my Brothers who argued before me therefore I shall not Actum agere to repeat them But I observed not that any steddy Rule hath been drawn from the Cases cited to guid a mans Judgment where the King may or may not dispence in penal Laws excepting that old Rule taken from the Case of 11 H. 7. 11 H. 7. f. 11 12. That with Malum prohibitum by Stat. the King may dispence but not with Malum per se But I think that Rule hath more confounded mens Iudgments on that subject than rectified them Yet I conceive that Case and the Instances given in it rightly understood to be the best key afforded by our Books to open this dark Learning as it seems to me of Dispensations to which therefore I shall only or principally apply my self Before I enter upon it I must previously assent That 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 And so all the Schoolmen agree That Actus qua actus non est malus Rom. 4.15 And that mens acts are good or bad only as they are precepted or prohibited by a Law according to that Truth Where there is no law there is no transgression Whence it follows That every Malum is in truth a Malum prohibitum by some Law In the next place I mean by the word Dispensation when I use it another thing than some of my Brothers defined it to be namely That it was Liberatio à poena or as others That it is provida relaxatio Juris which is defining an ignotum per ignotius but liberare à poena is the proper effect of a pardon not of a dispensation For a dispensation obtained doth jus dare and makes the thing prohibited lawful to be done by him who hath it upon which depends the true reason of many Cases which admit not of dispensation but a pardon frees from the punishment due for a thing unlawfully done Yet freedom from punishment is a consequent of a dispensation though not its effect But so it is also a consequent of repealing the Law and a consequent of an exception at the making of the Law of some particular person or persons from being bound by the Law I come now to the Case it self of 11 H. 7. wherein I agree That with Malum prohibitum by Stat. indefinitely understood the King may dispense But I deny that the King can dispense with every Malum prohibitum by Statute though prohibited by Statute only 1. The King may pardon Nusances that are transient and not continuing as a Nusance in the High-way which still continues and is not ended until removed cannot be pardon'd So of a Water-course diverted or a Bridge broken down Cok. Pla. Coron f. 237. they cannot be pardon'd so as to acquit the Nusance-maker for committing them but the fine or punishment impos'd for the doing may be pardon'd But breaking the Assise of Bread and Ale forestalling the Markets ingrossing regrating or the like which continue not but which are over assoon as done until done de novo again may be pardon'd like other offences So as the Offender shall not be impleaded for them otherwise than by persons who have receiv'd particular damage which the King cannot remit
brevi de Ad quod damnum And when the King can licence without any Writ of Ad quod damnum he may if he will licence whatever the Retorn of the Writ be Though it be said in the Case of Monopolies That in the Kings Grant it is always a Condition expressed or implyed Quod patria plus solito non oneretur but that seems but gratis dictum So if the King will ex speciali gratia licence a Mortmain Dyer 9 10 El. f. 269. a. the Chancellor need not issue any Ad quod damnum for the King without words of Non obstante is sufficiently appris'd by asking his licence to do a thing which at Common Law might be done without it that now it cannot be done without it And that is all the use of a Non obstante But whether in such Cases licences limited to certain quantities of the Commodities to be imported be good as some collect from that Case as it is reported which appears not by the Iudgment nor in what Cases licences may be general or ought to be limited is not now properly before us 1. If Exportation Importation of a Commodity or the exercise of a Trade be prohibited generally by Parliament and no cause expressed of the Prohibition a licence may be granted to one or more without limitation to Export or Import or to exercise the Trade For by such general Restraint the end of the Law is conceived to be no more than to limit the over-numerous Exporters Importers or Traders in that kind by putting them to the difficulty of procuring licences and not otherwise and therefore such general licences shall not be accounted Monopolies 2. In such Cases the Law implies the King may licence as well as if the prohibitory Law had been that no such Importation Exportation or Trading should be without the King 's express licence in which Case the licence requires no limitation to a certain quantity 3. It is apparent That if the exercise of a Trade be generally prohibited the King's Licence must be without any Limitation to him that hath it to exercise his Trade as before it was prohibited else it is no licence at all 4. Where the King may dispense generally he is not bound to it but may limit his Dispensation if he think fit 5. If to avoid a Monopoly his Dispensation upon all prohibitory Laws generally must by Law be limited his limited Dispensation may be for greater quantities than were Imported or Exported before the Restraint because the quantity in the Dispensation is left indefinite and may be any quantity certain and consequently the end of the Restraint equally frustrated and the Monopoly as effectual as if the Licence had been general though it be limited 6. If a Commodity be prohibited to be Exported or Imported because too great quantities of it is carried out or brought in the Licences ought to be limited to answer the end of the Act. 7. If Importation of a Commodity be prohibited to maintain the Native Artificers of that Commodity in the Kingdome with livelyhood and so of Exportation no Licence either with stint or limitation or without it seems good by way of Merchandise for both of them may equally frustrate the end of the Act in the support of the Native Artificers for the former reason but such a Licence may be good to Import for a mans private use though in the Case of Monopolies it is said Such a Licence without any Limitation is a Monopoly which is as much perhaps by implication as to say that such a Licence with a Limitation is no Monopoly quod non credo As to the second Question Admitting King James might have dispens'd with particular persons for selling Wine by Retail as the constant course hath been since the Statute of 7 E. 6. Whether he could dispense with a Corporation or with this Corporation of Vintners and their Successors as he hath done having no possible knowledge of the persons themselves or of their number to whom he granted his Dispensation which is the Reason insisted on why his Grant is not good As to that 1. First That the nature of the offence is such as may be dispens'd with seems clear in reason of Law and by constant practice of licencing particular persons 2. Where the King can dispense with particular persons he is not confined to number or place but may licence as many and in such places as he thinks fit An Act of Parliament which generally prohibits a thing upon penalty which is popular or only given to the King may be inconvenient to divers particular persons in respect of person place time c. For this cause the Law hath given power to the King to dispense with particular persons But that Case touches not upon any inconvenience from the largeness of the Kings dispensation in respect of persons place or time which the Law leaves indefinite to the pleasure of the King as the remedy of inconveniences to persons and places by the penal Laws some of which may be very inconvenient to many particular persons and to many trading Towns others but to few persons or places and the remedy by Dispensation accordingly must sometimes be to great numbers of persons and places and sometimes to fewer If the wisdome of the Parliament hath made an Act to restrain pro bono publico the Importation of Forreign Manufactures that the Subjects of the Realm may apply themselves to the making of the said Manufactures for their support and livelyhood to grant to one or more the Importation of such Manufacture without any limitation non obstante the said Act is a Monopoly and void 3. It is admitted a Corporation is capable of a Dispensation as where the King hath an Inheritance in the thing concerning which the Dispensation is so it was express'd and therefore he may dispense with a Corporation of Merchants or with a Town Corporate not to pay Custome for some Commodity as he may with particular persons This seems to end the Question For if the offence in its nature may be dispens'd with and a Corporation be capable of a Dispensation the King 's not knowing the persons or numbers which is the pretended reason will not avoid the Dispensation in the present Case of the Vintners For by the same reason dispensations to Corporations and their Successors would be void in all Cases as well as in this for their persons and numbers must be equally unknown to the King in every Case as in the present Case That a dispensation may be granted to a Body Corporate or Aggregate as well as to private persons Suarez de Legibus which Mr. Attorney cited in this Case and is in truth a most learned Work is very express Suarez de Legibus l. 6. c. 12. f. 416. Dispensatio autem per se primo versari potest circa personam privatam quia solum est particularis exceptio à Communi Lege potest etiam ferri circa
convert part of their Wood-land into Arable 35 H. 8. c. 17. contrary to the Statute of 35 H. 8. and contrary also to the Common Law I have a Note of a Charter of King John to an Abbot and his Covent by which they had Licence Nemora sua pertinentia Domui suae redigere in culturam 5. A Licence to erect some Cottages upon their Waste or other Lands 31 El. c. 7. contrary to the Statute of 31 Eliz. c. 7. 6. A Licence to erect a Fair or Market 7. A Licence to an Abbot and his Covent Pl. Com. Grendons C. to appropriate a Rectory In all these Cases the King hath no knowledge of the persons themselves or of their number to whom he grants his Licence or Dispensation Therefore that can be no reason to avoid the Charter of the Corporation of Vintners A Dispensation or Licence properly passeth no Interest nor alters or transfers Property in any thing but only makes an Action lawful which without it had been unlawful As a Licence to go beyond the Seas to hunt in a mans Park to come into his House are only Actions which without Licence had been unlawful But a Licence to hunt in a mans Park and carry away the Deer kill'd to his own use to cut down a Tree in a mans Ground and to carry it away the next day after to his own use are Licences as to the Acts of Hunting and cutting down the Tree but as to the carrying away of the Deer kill'd and Tree cut down they are Grants So to licence a man to eat my meat or to fire the wood in my Chimney to warm him by as to the actions of eating fireing my wood and warming him they are Licences but it is consequent necessarily to those Actions that my Property be destroyed in the meat eaten and in the wood burnt so as in some Cases by consequent and not directly and as its effect a Dispensation or Licence may destroy and alter Property Trin. 2. Jac. To the Presidents of Wright versus Horton alios Of Norris versus Mason Trin. 2 Jac. Both which were the same Cases with the present upon the Letters Patents of Queen Elizabeth the Ninth of her Reign to the Vintners of London Of Young versus Wright Mich. 12 Car. 2. No Answer hath been given but that which is none viz. That the two first Judgments were without Argument which is not essential to a Judgment and Judgments are frequently given when the Cause is conceiv'd clear as it seems these were conceiv'd if there were no Argument which is but a Non liquet The Answer to the last President is That the Judgment upon the Roll is torn off That some of the Judges are living who gave the Judgment and many more who know it to have been given Other Presidents of Licences to Corporations 6 H. 8. 1. A Special Licence to the Fraternity of Corvisors London to exercise their Callings notwithstanding a penal Statute to the contrary 1 R. 3. 1 E. 6. 4. Inhabitantibus in Com. Norf. Civitat Norwic. authoritat barganizare pro Lanis non obstante Statuto 37 H. 8. 2 E. 6. 3. Mercatoribus de Venice Licenc Special emere in aliquo Com. hujus regni Angl. 500 Saccas Lanarum ac illas operare sic operat in partes exteras transmarinas carriare absque impedimento non obstante Statut. 4 H. 7. 7 E. 6. 6. Mercatoribus transeuntibus Licenc asportare pecun contra formam Statuti 1 E. 6. 7. Johanni Gale Mil. Licenc pro omnibus suis servis sagittare in vibrell non obstante Act. Parliament Cons Tho. Com. South 2 R. 3. 1. A Proclamation dispensing with a penal Statute touching Cloth-making 1 R. 3. 9 Eliz. 3. Henr Campion al. Brasiator de Lond. Westm licenc retinere alienos in servitiis suis 27 H. 8. 2. Major Civitat Heref. Licenc perquirere terram ad Annuum valorem 40 Marcarum non obstante Statuto 36 Eliz. 3. Ballivis c. de Yarmouth magna Licenc transportare 40000 quarter frument gran infra 10 Ann. 26 Eliz. 7. President c. Mercatorum Hispaniae Portugal infra Civitat Cestr Licenc transportare 10000 Dickers of Leather per 12 Ann. 1 M. 2. Mercatoribus de le Stillyard Licence for three years to Export any manner of Woollen Cloth at 6 l. and under unrowed unbarbed and unshorn without forfeiture 1 M. 11. Mercatoribus periclitan a Licence to transport all manner of Woollen Cloth non obstante Stat. Roberto Heming alios Licence to sell Faggots within London and Westminster non obstante Stat. 2 Jac. 22. A Licence to the Gun-makers of London to transport Guns 4 Eliz. 2. A Licence to the Mayor c. of Bristoll that they may lade and unlade their Ships c. of their Goods and lay the same on Land and from Land to transport them Non obstante Statut. 6 Eliz. 11. Mercatoribus Periclitan Licence to transport their Merchandises in strange Ships Non obstante Statut. 5 Car. 1. Mercatoribus de le East-Indies Licence to transport 10000 l. in English Gold Objections against the Patent 9 Jac. Obj. 1 That by this Patent every Freeman of London and of the Corporation of Vintners which freedom the City and Corporation gives to whom they please is dispens'd with So in effect the City of London and Corporation of Vintners give Dispensation to sell Wine The Case of penal Laws Seventh Rep. Answ 1. which by Law none but the King can grant as is resolved in the Seventh Report The King Incorporates a Town by name of Mayor and Burgesses with power to the Burgesses annually to choose a New Mayor Brook Commission n. 5. and grants that every Mayor at the end of his Majoralty shall be a Justice of the Peace in that Corporation It is no Inference because the Burgesses elect the Mayors that therefore they make Justices of Peace for they are made so by the King 's Great Seal and not by them The Case is in Brook Title Commission N. 5. Nor is that Case of penal Laws so generally true perhaps if not understood where the King governs in person and not by his Lieutenant as in Ireland or by Governours as in the Plantations of the Western Islands The City of London grants Dispensations in this Case no more than the Burgesses make Justices of the Peace in the other Obj. 2 Another Objection made is That the King cannot dispense with a man to buy an Office contrary to the penal Statute of 5 E. 6. nor with one Simoniacally presented to hold the Living nor with any of the House of Commons not to take the Oath of Allegiance according to the Statute 7 Jac. c. 6. nor to Sue in the Admiralty for a Contract on the Land contrary to the Statute 2 H. 4. First It is against the known practise since the Statute of Answ 1 7 E. 6. That the King cannot dispense for selling of
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
case of Rebutter the Warranter himself impleads him and in a Voucher he must make his title appear to be warranted Ergo in a Rebutter But he needs not have like Estate in the Land upon a Rebutter as upon Voucher which is for the reason given of recovering in value And the only reason why the person who is to warrant impleading the Tenant of the Land shall not recover but be rebutted by the warranty is because if he should recover the Land the Tenant who is intitled to the warranty must recover in value from him again and therefore to avoid Circuit of Action he shall not recover but be rebutted and barr'd as is most reasonable I shall therefore first make it appear by all ancient Authorities That the Tenant in possession shall not rebutt the Demandant by the warranty without he first make it appear that the warranty did extend to him as Heir or Assignee To prove this are full in the point Hill 8 E. 3. f. 10. tit garranty pl. 48. New Edit f. 283. b. num 28 The Book of 8 E. 3. f. 10. of the Old Edition Hillary Term tit Garranty pl. 48. where upon a great Debate it was rul'd That the Tenant must shew how he was entitled to the warranty and how it extended to him and accordingly did so before his Plea was admitted by way of Rebutter 10. E. 3. f. 42. b. New Edit f. 391. b. num 42 Another Book full in the point is 10 E. 3. f. 42. b. of the Old Edition where in like manner the Tenant was forc'd to shew how the warranty extended to him upon Debate and it is remarkable in that Case That his shewing the Deed of warranty to him whose Assignee he was and the Deed of Assignment to himself was not enough but he was compell'd to plead orally as the manner then was That William who had the warranty assign'd to him by his Deed there shew'd forth and the reason given that the Deed of Assignment could not speak and make his Plea and was but Evidence of the truth of his Plea But in that very Case when it was replyed That he was not Tenant by the Assignment of William but by disseisin of the Plaintiff it was not permitted without traversing the Assignment of William For if he were once intitled to the warranty what Estate soever he had when impleaded he might rebutt though he could not vouch Which Case proves fully both my Positions That a man cannot rebutt without shewing how the warranty extends to him 2. That so doing he may whatever Seisin he hath at that time be it by Disseisin or Abatement c. or otherwise 22 Ass pl. 88. A third Case is when the Tenant being impleaded pleaded the warranty of the Demandants Father to one A. and bound him and his Heirs to warrant to A. his Heirs and Assigns and that he was Assignee of A. and demanded Judgment In that Case because he did not plead that he was Assignee of A. by Deed the Plea was disallow'd which since hath been thought not necessary but à fortiori if he had pleaded no Assignment at all from A. by Deed or without Deed to intitle him to the warranty his Plea had been necessarily disallowed My next Assertion is That the Tenant in possession setting forth how the warranty extends to him needs not set forth by what Estate or Title he is in possession To this I shall cite three Books full in the point 6 E. 3. f. 7. old Edit new Edit 6 E. 3. f. 187 Num. 16. 10 F. 3. f. 42. cited before old Book 45 E. 3. But in all these Cases it is to be noted That the Tenant rebutting though he was in possession of another Estate than that to which the warranty was annex'd yet constantly shew'd how the warranty was deriv'd to him which Sir Edward Coke observ'd not either in Lincoln Colledge Case or his Littleton but cites in Lincoln Colledge Case the Case of 45 E. 3. 45 E. 3. f. 18. and some others I shall mention after to shew a man may rebutt being in of another Estate than that which was warranted which is true but not without intitling himself to the warranty That the Law of rebutting stands upon the difference I have taken besides the Authorities urg'd will be evident for these Reasons As a warranty may be created so may it be determin'd or extinguish'd various ways 1. It may be releas'd as Littleton himself is Sect. 748. 2. It may be defeasanc'd as Sir Edward Coke upon that Sect. 748. 3. It may be lost by Attainder Sect. 745. 4. It may be extinguish'd by Re-feoffment of the warranter or his Heirs by the Garrantee or his Heir In all these Cases if the warranty be destroy'd it cannot be rebutted for there cannot be an accident to a thing which is not and rebutting is an accident incident to a warranty And therefore if the warranty have no being there can be no rebutter Why then admit A. warrants Land to B. and his Assigns during the life of B. after B. releases this warranty to A. and then Assigns to C. C. is impleaded by A. and pleads generally that A. warranted to B. for his life and that B. is still living if C. could rebutt A. by this manner of pleading without shewing when B. assigned to him so to derive the benefit of the warranty to himself A. could never have benefit of the Release of the warranty because it could not appear whether the warranty were releas'd before or after the assignment if before then the warranty is gone and cannot be rebutted but if after it may So if A. binds him and his Heirs to warrant to B. his Heirs and Assigns B. dyes his Heir releases the warranty and dies and then the Heir of the Heir assigns The Tenant is impleaded by A. If he may rebutt by his bare possession without shewing how the warranty extended to him A. can have no benefit of his Release before any assignment was made for the Demandant cannot be suppos'd to know the time of the assignment and consequently cannot know how to plead the Release until the time of the assignment appear which is most consonant in reason with the Authorities before urg'd Another reason is That constantly in elder times when the Tenant pleaded a warranty to rebutt he concluded his Plea that if he were impleaded by a stranger the Demandant was to warrant him which could not be without shewing how the warranty extended to him for he was not to warrant him if impleaded by a stranger because he had possession of the Land only Sir Edward Coke in Lincoln Colledge Case cites the Book of 38 E. 3. f. 26. as adjudg'd to prove that the bare possession of the Land is sufficient for the Tenant to rebutt for that the Assignee may rebutt a warranty made only to a man and his Heirs If that were so it were to his purpose but there is
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
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
and Merioneth The residue of the said Lordships Marchers were thereby framed and divided into five particular Counties erected and created by the Act namely the County of 1 Monmouth 2 of Breenock 3 of Montgomery 4 of Radnor 5 of Denbigh The respective Lordships Marchers annexed to the respective English Counties of Salop Hereford and Glocester are now to all intents under the Jurisdiction of the Courts at Westminster in like manner as the Counties to which they were annexed formerly were and yet are So is one of the new erected Counties framed out of the said Lordships Marchers namely the County of Monmouth which by the said Act is to all purposes under the Jurisdiction of the Kings Courts at Westminster as any English Country is All the Lordships Marchers annexed to the ancient Shires of Wales are now since the Statute under the same Jurisdiction for Administration of Justice as those ancient Shires were before the Statute of the 27. and yet are so as the Lordships Marchers annexed to those ancient Shires of Wales are now such parts of them as the Lordships Marchers annexed to the English Shires are parts of them And the four new Shires in Wales excluding Monmouth shire are by the said Act under the same Administration of Justice by the King's Justices to that purpose there Commissioned as the other ancient Shires of Wales formerly were and are and consequently wholly out of the Jurisdiction of the King's Courts at Westminster And the reason appears in the Statute forasmuch as the Counties or Shires of Brecnock Radnor Montgomery and Denbigh be far distant from the City of London and the Inhabitants of the said Shires not of substance to travel out of their Counties to have the Administration of Justice It is therefore enacted that there shall be respective Chanceries and Exchequers in these Counties and that the Sheriffs of those Counties shall make their Accompts before the Chamberlain and Barons there appointed And that Justice shall be used and ministred in the said new Shires according to the Laws and Statutes of England by such Justiciar or Justicers as shall be thereto appointed by the King and after such form and fashion as Justice is used and ministred to the King's Subjects within the three Shires of North-wales which is according to the ancient Administration of Justice by the Statute of Wales 12 E. 1. So as since this Statute the Courts of Westminster have less Jurisdiction in Wales than before for before they had some in all their Lordships Marchers which were in no County as by this Act and since they being all reduced into Counties either of England or Wales their Jurisdiction is absolute over such of them as are annexed to English Counties but none over the rest And accordingly it hath been still practised since the Statute for before Lordships Marchers and Quare Impedits of Churches within them were impleadable in the Kings Courts by Originals out of the Chancery directed to the adjoyning Sheriffs and the Issue tryed in the Counties adjoyning But since no such Original hath issued for real Actions nor any such Tryal been And what hath been in personal Actions of that kind began upon mistake because they found some Originals issued into some part of Wales and knew not the true reason of it that it was by Act of Parliament they then concluded Originals might issue for any cause arising into any part of Wales and the Tryals to be in the adjacent Counties of England generally And though that practise hath been deserted since the Statute of 27 H. 8. as to real Actions because the subject matter of the Lordships Marchers was taken away which in some sense was lawful as is opened before the Statute yet they have retained it still in personal Actions which was never lawful nor found in any Case anciently practised as real Actions were as appears in the Case of Stradling and Morgan in the Commentaries yet that was upon a quo minus out of the Exchequer which I do not see how it can change the Law If Judgments be obtained in the King's Courts against persons Obj. 1 inhabiting in Wales and that Process of Execution cannot be awarded thither the Judgments will be ineffectual The same may be said of Judgments obtained against a Frenchman Answ 1 Scotch man or Dutch-man whose usual Residence Lands and Goods are in those Territories he that sues ought to foresee what benefit he shall have by it and must not expect it but where the Courts have Jurisdiction The same may be said of Judgments obtained here against Irish-men Garnsey or Jersey Inhabitants or formerly against those of Calais Gascoign Guyen which were equally and some are still of the Dominions of England as Wales is subject to the Parliament of England but not under the Jurisdiction of the Courts at Westminster though subject to Mandatory Writs of the King Obj. 2 That of Judgments obtained in the King's Courts Execution is had in Franchises and also in Counties Palatine where the King 's Writ runneth not and by the same reason ought to be had in Wales though the King's Writ runneth not there Answ 1 Franchises inferiour are deriv'd out of Counties by the King's Grant where the King's Writ did run and so were Counties Palatine part of the Realm anciently where the Subjects of the Realm had right to have Execution of the Lands and Goods of those against whom they recovered in the King's Courts whereof they are no more to be deprived than of their Actions by the King's Grant for he may make what Counties he pleases Counties Palatine but in Dominions out of the Realm the Subject had no such Right in the other they have it because they had it at Common Law but in others not because they had it not at Common Law When the Question is of the Jurisdiction in a Dominion or Territory belonging to England the way to determine it is by examining the Law in Dominions the same in Specie with that concerning which the Question is and not to examine the Law in Franchises or Dominions of another kind Therefore to determine what Jurisdiction the King's Courts have in Wales ought to be by examining their Jurisdiction in Ireland the Islands of Garnsey Jersey Calais Gascoign Guyen in former times some part of Scotland and the Western Islands and many others might be named which are Dominions in Specie the same with Wales and belonging to England where the King 's Writ runneth not and not this power in Franchises within the Realm part of English Counties before they were Franchises and continuing so after or in entire Counties Palatine which sometimes were under the Jurisdiction of the King's Courts and in which the Subjects had a right of their Tryals upon Pleas pleaded and of Execution and which cannot be taken from them where the King 's Writ runneth not The Cases are full in this point in 19 H. 6. f. 12. 32 H. 6. f. 25. and many
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
license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Nusance 1. Publique Nusances are not Mala in se but Mala politica introducta 358 2. The King may pardon a transient Nusance 333 3. An Action will not lye for a Nusance for which no man hath a particular damage 335 341 4. If a man have a particular damage by a foundrous way he is generally without remedy because it ought to be repaired by some Township or Vill against whom an Action will not lye but an Indictment only 340 Oath 1. Upon granting of Administration the Administrator is to take an Oath duly to administer the Estate of the deceased 96 Occupant and Occupancy 1. What Natural Occupancy is 188 2. What Civil Occupancy is 189 3. An Occupant shall enjoy whatsoever is belonging to that which he occupies 196 4. No Occupancy begins with the Freehold but begins by possessing the Land and the Law casts the Freehold upon him 195 5. A Claim without actual possession cannot make a man a Natural Occupant 188 6. There can be no Occupancy of any thing wherein another hath a Right 188 189 7. Two cannot have severally possession of the same thing at one time 189 192 8. Of what things there may be an Occupancy and of what not 190 194 198 9. A man cannot be an Occupant but of a void possession or of a possession which he himself hath 192 10. What it is that makes an Occupant 191 11. Tenant for years or at will may be an Occupant 192 12. An Occupant becomes an Assignee in Law to the first Lessee 204 13. The Occupant is lyable to pay the Rent 202 203 14. He hath power to pass over his interest 205 15. If a man die seised pur auter vie of a Rent Tythe c. or other thing whereof there can be no Occupancy either directly or by consequence as adjuncts of something else by the death of the Grantee In all these cases the Grant is determined as if there never had been any 201 202 16. But when those things are granted in the same Deed together with other things of which there may be an Occupancy then they shall be subject to the Occupancy 202 Office before Escheators See Inquisition 1. Principally an Office for the King is as necessary as an Entry for a common person 153 2. It neither determines any mans Right neither doth any party put any Tryal upon them 153 3. An Inquest of Office is not subject to an Attaint they are only to find naked matter of Fact 153 4. Where an Office is found if the Defendant hath no Title then the King hath one by his Office 62 5. No person shall Traverse the Office unless he makes to himself a good Title 64 Office and Officer See Title Statutes 24. 1. All Offices of Trust must be personally occupied unless granted to be occupied by a Deputy 181 2. Offices of personal Trust cannot be assigned for the Trust is not personal which any man may have 180 3. An Office of Trust and Confidence cannot be granted for years 181 4. All Actions brought against the Officers mentioned in 21 Jacobi must be laid in the proper County and if the Plaintiff is Non-suited or Discontinue or a Verdict against him they shall have their double costs 111 112 113 114 115 116 117 Ordinary See Administration Arch-bishop Lapse 1. The Ordinary may enforce the Executors to pay Debts upon Contracts as well as Legacies or Marriage mony 97 2. Where the Ordinary is to supply the Cure until the Patron present 132 3. Where the Ordinary disclaims in a Quare Impedit there is a Judgment with a Cessat Executio quousque c. 6 Pardon See Dispensation King 1. A Pardon frees a man from the punishment due for a thing unlawfully done 333 2. What Offences committed against Statutes the King may pardon and what he cannot 333 334 335 c. 3. The King may pardon a transient Nusance but a continued Nusance cannot be pardoned so as to acquit the Nusance-maker for committing them but the fine or punishment imposed for the doing thereof may be pardoned 333 4. Forestalling the Market Ingrossing or the like which continue not but are over as soon as done until done de novo again may be pardoned like other Offences so as the persons shall not be impleaded otherwise than by the persons who have received particular damage which the King cannot remit ibid. Parliament See Statute  Parson and Patron 1. A Parson is chosen Bishop his Benefices are all void and thereupon the King shall present 19 20 21 2. Where a Benefice becomes void by accepting another without a Dispensation the Patron is bound to present without Notice and where not 131 3. Where the Parson doth not read the Articles according to the Statute he stands deprived ipso facto ibid. 4. Where the Parson doth not subscribe the Articles there he is not Incumbent although he keeps in possession 133 5. A Church-man cannot make a Lease of the possessions of his Church without Deed 197 Perpetuity 1. Every Fee-simple is a perpetuity but in the accident of Alienation and alienation is an incident to a Fee determinable upon a Contingent 273 2. There is no Law simply against perpetuities but against an Entail of perpetuities ibid. Pleading See Traverse 1. If the Falshood in the Defendants plea is neither hurtful to the Plaintiff nor beneficial to the Defendant there it shall not hurt the Defendant 104 2. Where the Defendant pleads a false plea which falshood is detrimental to the Plaintiff and beneficial to the Defendant as by pleading several Judgments and concluding that he hath not Assets ultra there the Plaintiff may Reply That one of the Judgments are satisfied which Replication shall be fatal to the Defendant 103 3. But to plead That he hath not bona catalla praeterquam bona quae non sufficient to satisfie the Judgments is void for the Uncertainty for no Sum being mentioned no good Issue can be taken upon it 104 4. So likewise to say That he hath not Assets ultra what will satisfie c. is void for Uncertainty ibid. 5. But it is good pleading to say That he hath not Assets praeterquam bona catalla ad Valentiam separal denar per ipsum in satisfactione separal indic solut And also besides Assets to the value of Ten shillings which are liable to satisfie the Statutes ibid. 6. It is a good plea for an Executor to plead several Judgment c. and conclude quod non habet nec ad aliquod tempus habuit any Assets of the Testators praeterquam bona catalla sufficient to satisfie those Judgments c. 103 7. To this the Plaintiff must Reply Assets ultra or that any one of the Judgments are satisfied ibid. 8. The pleading of a special plene Administravit 91 9. In pleading of a Judgment it is not necessary to set forth the
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
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