haberi decrevit and then he adjourns 't is no Argument to say that he was hindred for he might have proceeded in absentia and if the 16th of June be tacked to it 't is longer than the time There needed no formal adjournment for that he is Authorized to proceed in a Summary way 't is no such absurdity to call that a Visitation which was in some sort hindred since notwithstanding the obstruction some Acts were done and more might have been by adjourning to another place 3. Here was no such cause as could warrant a Deprivation it was not one of the causes mentioned in the Statutes which are not directions merely but they are the constituent Qualifications of the Power and Contumacy is none of the causes nay here is no Contumacy at all The Offence of the Suspended Fellows was only a mistake in their Opinions and the Doctors was no more and 't is not a Contumacy for refusing to answer to or for any Crime within the Statutes for there was none of the Crimes mentioned in the Statutes laid to the charge of the Rector if the Crime charged had incurred Deprivation perhaps a Contumacy might be Evidence of a Guilt of that Crime and so deserve the same Censure but Contumacy in not consenting to a Visitation can never be such especially when the consenting to a Visitation is not required under pain of Deprivation 4. Admitting the Visitor legally in the Exercise of his Office that here was cause of Censure that the Cause or Crime was deserving of that Punishment which was inflicted that Deprivation was a congruous Penalty for such an Offence yet t was argued That this Sentence was void for that the Visitor alone was in this Case minus competens judex because his Authority was particularly designed to be exercised with the consent of others which was wanting in this Case This was the same as if it had required the concurrence of some other Persons Extra Colleg ' then that such a concurrence was necessary appears from the words of the Statute his meaning seems plain upon the whole to require it A greater tenderness is all along shewn to the Rector then to the Scholars 't is sine quorum consensu irrita erit hujusmodi Expulsio vacua ipso facto and the Sentence it self shews it necessary because it affirms it self to be made with such consent and it cannot be thought that the Rector should be deprivable without their consent when the meanest Scholar could not Then here 's no such consent for 't is not of the four Seniors but of the four Seniors not Suspended now this doth not fulfil the Command of the Statute for the Suspension doth not make them to be no Fellows a Suspended Fellow is a Fellow though Suspended a Suspension makes no vacancy the taking off of the Suspension by Sentence or by Effluxion of time doth make them capable of acting still without the aid of any new Election and they are in upon their old choice and have all the priviledges of Seniority and Precedency as before If they ceased to be Fellows by the Suspension then they ought to undergo the Annum probationis again and to take the Oaths again In case of Benefices or Offices Religious or Civil Ecclesiastical or Temporal 't is so a Suspension in this Case is only a disabling them from taking the Profits during the time it continues And 't is no Argument to say That their Concurrence was not necessary for that they had withdrawn themselves and were guilty of Contumacy for that a Man guilty of Contumacy might be present if withdrawn from the Chapel he might be in the Colledge or in the University and 't is not found that they were absent and then their Consent not being had the Sentence was void and null and consequently no Title found for the Lessor of the Plaintiff in the Action below It was replied in behalf of the Plaintiff much to the same effect as 't was argued before and great weight laid upon the Contumacy which hindred the observance of the Statutes that by allowing such a Behaviour in a Colledge no Will of the Founder could be fulfilled no Visitation could ever be had and all the Statutes would be repealed or made void at once that tho' this Crime was not mentioned 't was as great or greater than any of the rest that here was an Authority and well executed and upon a just Cause and in a regular manner as far as the Rector's own Misbehaviour did not prevent it and therefore they prayed that the Judgment might be reversed And upon Debate the same was reversed accordingly Note That in this Case there was one Doubt conceived before and another after this hearing The first was If a Writ of Error lay in Parliament immediately upon a Judgment in the King's Bench without first resorting to the Exchequer Chamber but upon perusing the Statute which erects that Court for Examination of Errors it appeared plainly that that Act only gives the Election to the Party aggrieved to go thither that it did not take away the old Common Law method of Relief in Parliament and so hath the Practise been but upon Judgments in the Exchequer Court the Writ of Error must first be brought before the Lord Chancellor and cannot come per saltum into Parliament because the Statute in that case expresly ordains That Errors in the Court of Exchequer shall be examined there and so held in the Case of the Earl of Macclesfield and Grosvenor The other Doubt was raised by a Motion in B. R. for the Court to give a new Judgment upon the Reversal above and insisted on that it ought so to be as was done in the Case of Faldo and Ridge Yelv. 74. entred Trin. 2 Jac. 1. Rot. 267. Trespass and Special Plea and Judgment in B. R. for the Defendant and upon Writ of Error in the Exchequer Chamber the Judgment was Reversed and upon the Record returned into the King's Bench they gave Judgment that the Plaintiff should recover contrary to the first Judgment for otherwise they said the Law would prove defective and a Precedent was shewn in Winchcomb's Case 38 Eliz. where the same Course was taken and the like Rule was made Mich. 1 W. Mar. upon the Reversal of the Judgment inter Claxton vers Swift which is entred Mich 2 Jac. 2. B. R. Rot. 645. the like between Sarsfield vers Witherley 'T was argued on the other side That the Court which reverses the Judgment ought to give the new Judgment such as ought to have been given at first that in the Exchequer Chamber it may be otherwise because they have only power to affirm or reverse for yet in the Case of King and Seutin the Exchequer Chamber gave a new Judgment tho' they cannot inquire of Damages and that is a kind of Execution which must be in B.R. In Omulkery's Case 1 Cro. 512. and 2 Cro. 534. the Court here sends a Mandatory Writ to
of the greatest Members of the House Selden Hollis Maynard Palmer Hide c. that the Earl Marshal can make no Court without the Constable and that the Earl Marshal's Court is a grievance Rushworth 2 Vol. 1056. Nalson's 1 Vol. 778. Spelman in his Glossary verbo Mareschallus seems to say 't was officium primo Servile and that he was a meer Servant to the Constable and gives much such another account of it as Cambden doth and pag. 403. is an Abstract or rather Transcript of all that is in the Red Book in the Exchequer about the nature of this Office and there 't is said that if the King be in War then the Constable and Marshal shall hold Pleas and the Marshal shall have the Amerciaments and Forefeitures of all those who do break the Commandments of the Constable and Marshal and then it was further alledged by the Councel for the Defendant in the Writ of Error that they knew of no Statute Record or Ancient Book of Law or History that ever mentioned the Earl Marshal alone as having Power to hold a Court by himself So that taking it as a Court held before an incompetent Judge a Prohibition ought to go and the Party ought not to be put to his Action after he has undergone imprisonment and paid his Fine since it hath the semblance of a Court and pretends to act as such and if it be a Court before the Earl Marshal alone in case it exceeds the Jurisdiction proper to it a Prohibition lies either by force of the Common-Law which states the boundaries and limits of that Jurisdiction or by force of the Statute of 8 Rich. 2. which is not repealed by the subsequent Law in that Reign and if such Prohibition do lie in any Case that here was cause for it the subject matter of the Articles being only a wrong if any to a private Officer who had his proper remedy at the Common-Law and therefore it was prayed that the Judgment should be affirmed and it was affirmed Smith Vx ' Versus Dean and Chapter of Paul 's London and Lewis Rugle APpeal from a Decree of Dismission made by the Lord Jeffreys the Bill was to compel the Dean and Chapter as Lord of the Mannor to receive a Petition in nature of a Writ of false Judgment for Reversing a common recovery suffered in the Mannor Court in 1652. whereby a Remainder in Tail under which the Plaintiff claimed was barred suggesting several Errors in the proceeding therein And that the said Lord might be commanded to examine the same and do Right thereupon To this Bill the Defendant Rugle demurred and the Dean and Chapter by Answer insisted That 't was the first Attempt of this kind and of dangerous consequence and therefore conceived it not fit to proceed on the said Petition unless compelled thereto by course of Law That Rugle being the Person concerned in interest to contest the sufficiency of the Common-recovery they hoped the Court would hear his defence and determine therein before any Judgment were given against them and that they were only Lords of the Mannor and ready to Obey c. and prayed that their rights might be preserved This demurrer was heard and ordered to stand And now it was insisted on by the Council with the Appellant that this was the only Remedy which they had that no Writ of Error or false Judgment lies for Reversing of a recovery or Judgment obtained in a Copyhold Court that the only method was a Bill or Petition to the Lord in nature of a Writ of false Judgment which of common right he ought to receive and to cause Errors and defects in such recovery or Judgment to be examined and for this were Cited Moore 68. Owen 63. Fits N. B. 12. 1 Inst 60. 4 Rep. 30. is such a Record mentioned to have been seen by Fenner where the Lord upon Petition to him had for certain Errors in the proceedings Reversed such Judgment given in his own Court 1 Roll's Abridg. 600. Kitchin 80. 1 Roll's Abridg. 539. Lanc. 98. Edward's Case Hill 8. Jac. 1. by all which it appears that this is an allowed and the only remedy Then it was argued That in all Cases where any Party having a Right to any Freehold Estate is barred by Judgment Recovery or Fine such Party of common Right may have a Writ of Error if the same be in a Court of Record and a Writ of false Judgment if in a Court Baron or County Court and reverse such Judgment Recovery or Fine for Error or Defect and there can be no reason assigned why a Copyholder especially considering the great quantity of Land of that Tenure in England should be without remedy when a false Judgment is given and the rather for that in Real Actions as this was the Proceedings in the Lord's Courts are according to those in Westminster-hall and now tho' a Common Recovery be a Common Assurance yet it was never pretended that a Writ of Error to Reverse it was refused upon that pretence and if the Lord of a Mannor deny to do his Duty the Chancery hath such a Superiour Jurisdiction as to enjoyn him thereto 'T is the Business of Equity to see that Right be done to all Suitors in Copyhold Courts Fitsh Abridg. Subpena 21. 2 Cro. 368. 2 Bulstr. 336. 1 Rolls Abridg. 373. If an Erroneous Judgment be given in such Court of a common Person 's in an Action in the Nature of a Formedon a Bill may be in Chancery in nature of a false Judgment to Reverse it and Lanc. 38. Tanfield says that he was of Counsel in the Case of Patteshall and that it was so decreed which is much more then what is here contended for and tho' Common Recoveries are favoured and have been supported by several Acts of Parliament yet no Parliament ever thought fit to deprive the Parties bound by such Recoveries of the benefit of a Writ of Error On the other side 't was urged in defence of the Dismission That the Person who suffered this Recovery had a power over the Estate that she might both by Law and Conscience upon a Recovery dispose of it as she should think fit that she hath suffered a Recovery and that it was suffered according to the custom of the Mannor tho' not according to the form of those suffered in Westminster-hall That the suffering of Recoveries in any Court and the Methods of proceeding in them are rather notional then real things and in the Common Law Courts they are taken notice of not as Adversary Suits but as Common Assurances so that even there few Mistakes are deemed so great but what are remedied by the Statute of Jeofailes or will be amended by the Assistance of the Court And if it be so in the Courts at Westminster where the Proceedings are more solemn and the Judges are Persons of Learning and Sagacity how much rather ought this to stand which was suffered in 1652. during the Times of
it Then as to the other Matter of the Damages which should have been inquired of upon the Demurrer 't was said That they were released upon Record and 't is plain that the Jury have found nothing upon that because the Conclusion of the Verdict doth shew that they inquired and found Damages only as to the concessit or assignavit they assess Damages for nothing else for if the Deed did pass the term then they find for the Plaintiff and assess Damages and if the term did not pass they find the Defendant Not guilty c. the Damages cannot therefore be for both for if they had found any for the Matter demurred upon it must have been with a si Contingat here 't is not so And tho' the Special Fact found had been against the Plaintiff it might have been for him upon the Demurrer and consequently the conditional finding of the Damages here can never be as to that Then it was further said That this might be supplied by an Inquest of Office in case it had not been released and there was cited Cheyney's Case Mich. 10 Jac. 1. 10 Rep. 118 119. Writ de Valore maritagij Issue on the Tenure and Verdict for the Plaintiff and no Value found of the Marriage and held ill because they say an Attaint lyes upon it that being the Point of the Writ and there the Rule is taken generally that where an Attaint lyes upon the finding the omission of finding such Matter cannot be supplied by a new Writ of Inquiry because such Writ of Inquiry would prevent the Party of the Benefit of his Attaint Then the Book says further That the Rule is that the Court ex Officio ought to inquire of such thing upon which no Attaint lyes and there the omission of its being found in the Verdict may be supplyed by a Writ of Inquiry of Damages as in the case of a Quare Impedit Poyner's Case Dyer 135. Issue found for the Plaintiff but the Jury per negligence were not charged to inquire of the four Points Plenarty ex cujus Presentatione si Tempus Semestre and the yearly Value of the Church there a Writ of Inquiry lyes de novo because upon them no Attaint lyes as is the 11 Hen. 4.80 because as to them 't is only an Inquest of Office and the Book says further That all the Cases to the contrary of that Rule have passed sub silentio without due Advisement and were against the Rule of Law So in the Case of Detinue the omission of the Value in the finding is fatal because an Attaint lyes upon a false Verdict in that particular So that by the Case cited it may be only an Inquest of Office as to part which is the present Case In that Case of a Quare Impedit in Dyer is cited a President for it in the Old Book of Entries 110. which is a false Folio for 't is in 93. b. and there is the very Entry of the Writ setting forth a Recuperavit presentation ' virtute Breais de Nisi prius Et quia nescitur utrum Ecclesia plena c. And as the Case is in Dyer the Plaintiff did there as the Plaintiff doth here release his Damages and had a Writ to the Bishop Now in Heydon's Case 11 Rep. 6. 't is held that no Attaint lyes upon an Inquest of Office and therefore 't is that if in a Trespass against divers Defendants some plead to Issue and one suffers Judgment to go by Default the Damages found on the Issue shall be chargeable upon all and the Inquiry of Damages on the Judgment by Default shall stay because no Attaint lyes upon that 'T is there also said that attaint lyes only on a Verdict on the mise of the Parties In Trespass three Issues Non culp ' to one part Prescription for a Common to another part and the Cattle raptim momorderunt in going to take Common to another c. The Jury find one for the Plaintiff and another for the Defendant and inquire not of the third Issue at all the Plaintiff relinquishing his Damages on the third Issue prays Judgment on the Verdict for the first and held that this prevented all Error Mich. 13 Car. 1. B. R. Brown and Stephens adjudged 1 Rolls Abridg 786. Then as to the Case of Vastuman and Row 11 Car. 1. B. R. in 2 Rolls Abridg. 722. Trespass for an Assault Battery and taking Corn Special Plea to the Battery and Demurrer thereupon and Non culp ' to the taking the Corn the Jury find no Damages upon the Demurrer said there That when Judgment is for the Plaintiff on the Demurrer the Damages for it cannot be assessed on a Writ of Inquiry but a Venire Facias de novo for the whole 'T was now argued that that was expresly against the Rule in Cheyney's Case and that in the Case in Rolls 't is put with the addition of a dubitatur But if that be Law there needs no Writ of Inquiry in this Case because the Damages as to that part are released and for this there is the express Case of Bentham 11 Rep. 56. In Annuity the Parties descended to Issue found for the Plaintiff as to the Arrearages but no Damages and Costs 't was held an imperfect Verdict and that it could not be supplyed by Writ of Inquiry of Damages yet the Plaintiff releasing the Damages and Costs had Judgment for him and a Writ of Error was brought and the Insufficiency of the Verdict was assigned for Error but the Judgment was affirmed because the Plaintiff had released it Dyer 369 370. Ejection ' custod ' terre hered ' and ill because intire Damages and for the beres no Ejectment lyes yet the Damages being released he had Judgment for the Land And 't was said to be there held That insufficient finding of Damages and finding of none are all one If a Release of that which is ill found will help where such thing released is directly in Issue much more it should do so where the thing released is but obliquely inquired of and was not put in Issue to the Jury and then 't was repeated what was said before that the Special Conclusion helps and prevents the General Intendment which otherwise would be had as to the Damages being intire and therefore 't was insisted that this made no Error but the Judgment in the Kings Bench stood good notwithstanding this Exception Then the Counfel for the Defendant did likewise wave this as not being the Cause of the Reversal in the Exchequer Chamber Wherefore it was argued for the Plaintiff That this Assignment or Grant found in the Verdict is void and passed nothing for that either it passed the whole Term or no part of it and that immediately that this must be agreed Then 't was said that it could not pass the whole for so to do was contrary to the Intention of all the Parties to the good will of the Grantor and even to the hopes of
command them in Ireland to do Execution there St. John vers Cummin Yelv. 118 119. 4 Inst 72. If Writ be abated in C. B. and Error brought in B. R. and the Judgment be reversed shall proceed in B. R. and 1 Rolls 774. to the same effect Green vers Cole 2 Saund. 256. The Judges Commissioners gave the new Judgment 'T is true in Dyer 343. the opinion was that he was only restored to his Action and then Writs of Error were not so frequent The Judgment may be erroneous for the Defendant and yet no reason to give a Judgment for the Plaintiff as in Slocomb's Case 1 Cro. 442. the Court gave a new Judgment for the Defendant therefore it properly belongs to the Court which doth examine the Error to give the new Judgment the Record is removed as Fitzh Nat. Brev. 18 19. on false Judgment in ancient Demesne v. 38 Hen. 6.30 and Griffin's Case in Error on a quod ei deforceat in 2 Saunders 29 30. new Judgment given here In the Case of Robinson and Wolley in 3 Keeble 821. Ejectment Special Verdict Judgment reversed in the Exchequer Chamber and they could never get Judgment here the Court of Exchequer Chamber not having given it and in the principal Case after several Motions in the Court of King's Bench the Remittitur not being entred there a Motion was made in Parliament upon this Matter and a new Judgment was added to the Reversal that the Plaintiff should recover c. Dr. William Oldis Plaintiff Versus Charles Donmille Defendant WRit of Error to Reverse a Judgment in the Court of Exchequer affirmed upon a Writ of Error before the Lord Chancellor c. The Case upon the Record was thus Donmille declares in the Exchequer in placito transgr ' contempt ' c. for a Prosecution contra regiam prohibit ' and sets forth Magna Charta that nullus liber homo c. that the Plaintiff is a Freeman of this Kingdom and ought to enjoy the free Customs thereof c. that the Defendant not being ignorant of the Premisses but designing to vex and aggrieve the Plaintiff did in Curia militari Henrici Ducis Norfolk ' coram ipso Henrico Com' Mareschal ' Exhibit certain Articles against the Plaintiff c. that Sir Henry St. George Clarencieux King at Arms was and is King at Arms for the Southern Eastern and Western Parts of the Kingdom viz. from the River of Trent versus Austrum and that the Conusance Correction and Disposition of Arms and Coats of Arms and ordering of Funeral Pomps time out of mind did belong to him within that Province and that the Plaintiff having notice thereof did without any Licence in that behalf had and obtained paint and cause to be painted Arms and Escutcheons and caused them to be fixed to Herses that he provided and lent Velvet Palls for Funerals that he painted divers Arms for one Berkstead who had no right to their use at the Funeral and did lend a Pall for that Funeral and paint Arms for Elizabeth Godfrey and marshalled the Funeral and the like for Sprignall and that he had publickly hanging out at his Balcony Escutcheons painted and Coaches and Herses and other Publick Processions of Funerals to entice People to come to his House and Shop for Arms c. That the Defendant compelled the Plaintiff to appear and answer the Premisses c. The Defendant in propria persona sua venit dicit That the Court of the Constable and Marshal of England is an ancient Court time out of mind and accustomed to be held before the Constable of England and the Earl Marshal of England for the time being or before the Constable only when the Office of Earl Marshal is vacant or before the Earl Marshal only when the Office of Constable is vacant which Court hath time out of mind had Conusance of all Pleas and Causes concerning Arms Escutcheons Genealogies and Funerals within this Realm and that no other Person hath ever intermeddled in those Pleas or Affairs nor had or claimed Jurisdiction thereof and that the Suit complained of by the Plaintiff was prosecuted in the said ancient Court of and for Causes concerning Arms Escutcheons and Funerals That by the 13 Rich. 2. 't was enacted that if any Person should complain of any Plea begun before the Constable and Marshal which might be tried by the Common Law he should have a Privy Seal without difficulty to be directed to the Constable and Marshal to Supersede that Plea till discussed by the King's Counsel if it belongs to that Court or to the Common Law prout per Statut ' ill ' apparet and that the said Court time out of mind hath been tant ' honoris celsitudinis that it was never prohibited from holding any Pleas in the same Court aliter vel alio modo quam juxta formam Statut ' praed ' Et hoc parat ' est verificare unde non intendit quod Curia hic placitum praed ' ulterius cognoscere velit aut debeat c. The Plaintiff demurs and the Defendant joyns From the Exchequer Court this was adjourned propter difficultatem into the Exchequer Chamber and afterwards by advice of the Judges there the Court gave Judgment for the Plaintiff which was affirmed by the Chancellor and Treasurer c. And now it was argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was erroneous and fit to be reversed And first to maintain the Court as set forth 't was insisted on 1. That when there was a Constable and Marshal the Marshal had equal Power of Judicature with the Constable as each Judge hath in other Courts 2. That the Constable had in that Court power of Judicature alone when there was no Marshal And 3. That the Marshal had the like when there was no Constable That they had both equal power of Judicature appeared by all their Proceedings by their Libels or Bills in the Case of John Keightley Esq against Stephen Scroop The Libel is In the Name of God Amen Before you my Lords the Constable and Marshal of England in your Court of Chivalry and prays that the said Stephen by their Sentence definitive may be punisht 1 pars Pat. 2 Hen. 4. m. 7. And the same Stephen libelled against Keightley to the thrice Honourable Lords the Constable and Marshal of England So the Libels were directed to both and both sate judicially The same appears by the Sentence or Judgment given in that Court Bulmer libelled against Bertram Vsau coram Constabulario Mareschallo qui duellum inter partes allocaverunt assignaverunt locum tempus Rot. Vascor ' 9 H. 4. m. 14. It doth likewise appear to be so by the Appeals from their Judgments to the King they are both sent to to return the Rolls of their Judgments Rot. Claus 20 Edw. 1. m. 4. In the Appeal brought by Sir Robert Grovesnor against Richard Scroop 't is upon
Inst 125. though the Statutes of Hen. VIII impower Commissions for trial of Treasons Committed beyond the Seas yet this Court doth and may still take Conusance of such Causes 4 Inst 124. Its Sentences are only reversable by and upon Appeal to the King no Writ of Error or false Judgment lies upon any of them which shews the greatness of the Court and the difference of its Jurisdiction from other Courts which may be some of thereasons why no Prohibition was ever granted to it and why the Parliament of Rich. II. gave the Remedy of a Privy Seal wherefore it was prayed that the Judgment should be Reversed On the other side it was argued by the Council in behalf of the Plaintiff in the Original Action that this Judgment ought to be affirmed and it was after this manner there seem three Queries in the Case 1. If any Prohibition lies to that Court 2. If any Cause here for a Prohibition and 3. If there be any such Court as that before the Earl Marshal but another doubt was raised whether any of these Questions could be such upon this plea which is concluded to the Jurisdiction for that seems to make only one doubt whether the Court of Exchequer could hold Plea of an Action for proceeding contrary to a Prohibition already granted but this was waved and then it was argued 1. That a Prohibition doth lie to this Court of Chivalry in case it exceeds the Jurisdiction proper to it and it was agreed that the Office of Constable is Ancient and by Cambden is held to have been in Ure in this Kingdom in the Saxon's time though the Office of Marshal is but of a puisne date but however Great and Noble the Office is however large and Extensive the Jurisdiction is yet 't is but limitted and Coke in 4 Inst 123. says that 't is declared so by the Statute of Rich. II. where 't is said that they incroached in great prejudice of the King's Courts and to the great grievance and oppression of his people and that their proper Business is to have conusance of Contracts and Deeds of Arms and of War out of the Realm which cannot be determined or discussed by the Common-Law which other Constables have heretofore duly and reasonably used in their time now by this Act 't is plain what the Jurisdiction is Contracts and Deeds of Arms and War out of the Realm are the subject matter of it and by Coke 't is called curia militaris or the Fountain of Marshal Law which shews it a Court that hath its boundaries a Court that may incroach nay which hath incroach'd in diverse instances belonging to the Common-Law And that 't is a Court that ought to meddle with nothing that may be Determined in Westminster-Hall then there must be some way of restraining this excess and these incroachments and if the Statute of Rich. II. had not been made it must be agreed that a Prohibition would have lain for else there had been no remedy which is absurd to affirm 'T is no Objection that Prohibitions are only grantable to Inferiour Courts and that this is one of the greatest Courts in the Realm for if a Court Marshal intermeddle with a Common-Law matter ea ratione it becomes inferior and may be controwled There needs no contest about the Superiority of Courts in this matter 't is the same here as among private Persons he that offends becomes inferior and subject to the Censure of his equal by offending though that Court should be reckoned so noble and great as hath been represented yet 't is only so while it keeps within its Jurisdiction Prohibitions are grantable to almost all sort of Courts which differ from the Common-Law in their proceeding to Courts Christian to the Admiralty nay to the Delegates and even to the Steward and Marshal upon the Statute of Articuli super Chartas Cap. 3. That they shall not hold Plea of Freehold or of Trespass Fits ' N.B. 241 242. is an express Writ of Prohibition though the Statute gave no such Writ but only did restrain the Jurisdiction of the Court which in truth is the Case in Question antecedent to the Statute pleaded No Argument can be raised from the subject matter of the Jurisdiction of this Court that 't is different from the Common-Law for so is the Admiralty and the Prerogative Courts nor is it any Objection that upon any Grievance in this Court the Appeal must be to the King for that holds in the other Courts with equal reason Nay Prohibitions lie from Westminster-Hall to hinder proceeding in Causes which the Courts that grant such Prohibitions cannot hold Plea of as to the Ecclesiastical Court which grants probate of a Will made within a Mannor to the Lord whereof such probate belongs 5 Rep. 73. to the Marches of Wales if hold Plea of what belongs to Court Christian 2 Roll's Abridg. 313. are several Cases to this purpose there were also Cited 1 Roll's Rep. 42. 2 Roll's Abridg. 317. Sid. 189. 1 Brownl 143 144. and Herne 543. 't was further urged that there neither was nor could be any reason assigned why a Prohibition should not be grantable to the Court of Chancery when by English Bill it meddles with the Common-Law in other manner than its Ancient and proper Jurisdiction doth allow and several Authorities were Cited to countenance that Assertion Then was considered the reason of Prohibitions in general that they were to preserve the right of the King's Crown and Courts and the ease and quiet of the Subject that 't was the Wisdom and Policy of the Law to suppose both best preserved when every thing runs in its right Channel according to the Original Jurisdiction of every Court that by the same reason one Court might be allowed to incroach another might which could produce nothing but confusion and disorder in the Administration of Justice that in all other Writs of Prohibition the suggestion is and with Truth in prejudicium corone Regis Gravamen partis and both these are declared to be the consequent of this Courts excess or incroachment of Jurisdiction even by their own Statutes and when the reason is the same the remedy ought to be so But it hath been pretended That the Statute appoints a Privy Seal for to supersede c. and therefore no Prohibition to this it was answered That this Act doth not take away the force of the 8 Rich. II. mentio ned in 4 Inst 125. which restrains the Constable and Marshal from medling with any Plea which concerns the Common Law and if it had a limitted Jurisdiction by the Common-Law or by that Statute the subsequent Statute which gave a further Remedy for to restrain them did not take away that which they had before and every Body must agree that where an Act of Parliament restrains a Jurisdiction such Act warrants a Prohibition in case that restraint be broken or exceeded 't is so in case of a limited Power at
8 Rep. 171. York and Athen's Case Lane's Rep. 20. Hob. 115. 2 Rolls Abridg. 158. Stevenson's Case 1 Cro. 389 390. 'T was argued that nothing could be inferred from Tanfield's Opinion in 2 Rolls Abridg. 159. which is also in Lane's Rep. 65. for there the Debt was not a Debt to the King till after the Death of the Testator but here is a Forfeiture to the King before the Elegit sued and admitting that the King hath only the pernancy of the Profits yet while he hath so no other Person can intermeddle for the King is intituled to all the Profits even to a Presentment to a Church which was void before the Outlawry as is Beverly's Case 1 Leon. 63. 2 Rolls Abridg. 807. and Oland's Case 5 Rep. 116. And Process of Outlawry is to be favoured and encouraged as 't is a Means for the recovery of just Debts and the effects of them by Forfeiture to the King ought to be favoured as a Prerogative wherewith the King is intrusted to that purpose 'T is a Penalty or Judgment upon him to be put Extra Legem because he contemns the Law and will not obey it so that as to him 't is the greatest Justice in the World that he should not enjoy any benefit of his Estate by virtue of the Law during the time that he despises it And as to Baden 't was his own default that he did not extend sooner he trusted the Party longer then he should and for that he may thank himself Wherefore upon the whole 't was prayed that the Judgment should be affirmed and it was affirmed Hall al' Executors of Tho. Thynne Versus Jane Potter Administratrix of George Potter APpeal from a Decree of Dismission in the Court of Chancery The Case was thus That Thomas Thynne Esq having intentions to make his Addresses to the Lady Ogle gave a Bond of 1000 l. Penalty to the Respondents Husband to pay 500 l. in Ten days after his Marriage with the Lady Ogle the Respondent assisted in promoting the said Marriage which afterwards took effect soon after the said Thynne was barbarously murdered and about six years after Mr. Potter brought an Action upon this Bond against the Appellants as Executors of Mr. Thynne and proving the Marriage recovered a Verdict for the 1000 l. Thereupon the Appellants preferred their Bill in Chancery to be relieved against this Bond as given upon an unlawful Consideration the Defendants by their Answer acknowledge the Promotion of that Marriage to be the Reason of giving the Bond. Upon hearing the Cause at the Rolls the Court decreed the Bond to be delivered up and Satisfaction to be acknowledged upon the Judgment The Respondent petitioned the Lord Keeper for a re-hearing and the same being re-heard accordingly his Lordship was pleased to Reverse that Decree and ordered the Respondents to pay Principal Interest and Costs or else the Bill to stand dismist with Costs And it was argued on behalf of the Appellants That this Bond ought in equity to be set aside for that even at the Common Law Bonds founded upon unlawful Considerations appearing in the condition were void that in many Instances Bonds and Contracts that are good at Law and cannot be avoided there are cancelled in Equity That such Bonds to Match-makers and Procurers of Marriage are of dangerous Consequence and tend to the betraying and oftentimes to the ruin of Persons of Quality and Fortune And if the use of such Securities and Contracts be allowed and countenanced the same may prove the occasion of many unhappy Marriages to the prejudice and discomfort of the best of Families that the Consideration of such Bonds and Securities have always been discountenanced and Relief in Equity given against them even so long since as the Lord Coventry's time and long before and particularly in the Case of Arundel and Trevilian betweeen whom the Fourth of February 11 Car. 1. was an Order made in these or the like words Vpon the hearing and debating of the Matter this present day in the presence of the Counsel Learned on both sides for and touching the Bond or Bill of 100 l. against which the Plaintiff by his Bill prayeth relief It appeared that the said Bill was originally entred into by the Plaintiff unto the Defendant for the payment of 100 l. formerly promised unto the said Defendant by the Plaintiff for the effecting of a Marriage between the Plaintiff and Elizabeth his now Wife which the said Defendant procured accordingly as his Counsel alledged But this Court utterly disliking the Consideration whereupon the said Bill was given the same being of dangerous consequence in precedent upon reading three several Precedents wherein this Court hath relieved others in like Cases against Bonds of that nature thought not fit to give any countenance unto Specialties entred into upon such Contracts It is therefore ordered and decreed That the said Defendant shall bring the said Bill into this Court to be delivered up to the Plaintiff to be cancelled Then 't was further urged That the Appellants had once a Decree at the Rolls to be relieved against the Bond in question upon consideration of the said Precedent in the time of the said Lord Coventry and others and of the Mischiefs and Inconveniences likely to arise by such Practises which increase in the present Age more then in the Times when Relief was given against such Bonds and therefore 't was pray'd that the Decree might be Reversed On the other side it was urged That the Consideration of this Bond was lawful that the assisting and promoting of a Marriage at the Parties request was a good Consideration at Law in all Times to maintain a Promise for payment of Money That this Bond was voluntary and the Party who was Obligor was of Age and sound Memory that here was no Fraud or Deceit in procuring it that Chancery was not to Relieve against Voluntary Acts that here was a great Fortune to be acquired to the Appellant's Testator by the Match that here was Assistance given that the Persons were both of great Quality and Estate and no Imposition or Deceit on either side in the Marriage That it might be proper to Relieve against such Securities where ill Consequences did ensue yet here being none and the thing lawful and the Bond good at Law the same ought to stand that here are no Children Purchasers or Creditors to be defeated that there are Assets sufficient to pay all and consequently there can be no Injustice in allowing this Bond to remain in force that it was the Expectation of the Respondent without which she would not have given her Service in this Matter and that it was the full meaning of the Appellant's Testator to pay this Money in case the Marriage took effect that there was a vast difference between supporting and vacating a Contract in Chancery that tho' Equity perhaps would not assist and help a Security upon such a Consideration if it were defective at Law
yet then they would have over-ruled the Plea and not have wrote to the Arch-Bishop at all This is the sole cause of that Judgment and then the consequence will be as was observed before But their own reason fails in this Case for here the sufficiency of Learning is Traversable for as hath been shewn it hath often been Traversed and as to the ea Ratione inhabilis no Objection can be to that for the old Authorities Cited do warrant nay require it and all Pleas of Special non est fact ' as by breaking of a Seal and the like are in the same manner Then besides the very words of the Law of Articuli Cleri are very much worthy of consideration it impowers the Bishop to refuse a Clerk propter defectum scientiae alias Causas rationabiles now all these Causes of Refusal mentioned in their cases comes under the causas Rationabiles and causa vaga in certa estnon Rationabilis now want of Learning is not included by intendment but by express words and therefore need not otherwise be set forth take it for granted that as they would have it the Temporal Judges are to Judge what is a reasonable cause of Refusal yet they are not to Judge if defect of Learning be a cause or not for in that the Statute is positive then if said to be deficient in Learning ea ratione inhabilis they had nothing to Judge upon they were only to write to the Arch-Bishop to know if the Fact were true if he were deficient and therefore it need not be set forth any otherwise then as the Statute expresses it tho' in that case they say there are divers sorts of Schisms and Heresies in Doctrines on which the Bishop might warrant his Refusal yet 't is not so much as once pretended there are any Opinions delivered in those cases that deficiency of Learning is subject to the same Rules of Pleading Then the Plea is in the Negative as was shewed before which is more than enough to make a good difference and Negatives in a Bar are always allowed to be more general because most favoured and especially here where the matter and person to which the words are applied do sufficiently restrain and determine the seeming uncertainty of it Nothing can be pretended to reduce this to a greater certainty but the Canons or the Statute of 13 Eliz. cap. 12. or other Laws of the same nature 1 Canons of King Jac. 1. made in 1602. and they were made pursuant to Canons made 1562. by which no Man was to be admitted nisi rationem fidei juxta Articulos Religionis in Synodo Episcoporum Cleri Anno 1562. approbatos Latine reddere eandem Scripturae testimonio Corroborare possit Can. 3 4. Conditiones in ordinandis requisit ' this is merely a Negative injunction on the Bishop never to confer Orders upon any Man that cannot do this it is not mandatory upon him to ordain every Man that can do this nor does it any way lessen or diminish the Authority or Judgment of the Ordinary in Examination of the fitness and Learning requisite So is the Statute of 13 Eliz. the same induces an incapacity on those that shall not subscribe the Articles but it leaves all things else to the Ecclesiastical Law neither the Canon nor the Statute are Derogatory from the Old Ecclesiastical Law they both leave it in Statu quo to the Ecclesiastical Judges no Man will pretend that these are a Repeal of the Statute of Articuli Cleri so that the Law remained as it did with more Latitude indeed to the Bishop but not with more favour to the Clerk They objected that here was not convenient notice to the Patron and the usual pleading of it is the same day But surely that 's well enough and so was it held by all the Judges that favoured their side in this case and 't is apparent that he had above four Months time to have presented another besides the Judges declared below that if not a convenient time it ought to have come on their side but they admit notice by their Replication and insist upon his Orders as an Estoppel to say that he was Illiterate They pretend That he is still under the Bishop's Jurisdiction and that he may deprive him for the same Cause if sufficient after Institution but that 's a great mistake for there may be a cause of Refusal which is not of Deprivation for he may become Learned that was not so and besides the Rule is false after induction they would then be discoursing about Freehold c. a Man may be refused because non compos but he cannot be deprived for that Cause though the Bishop may provide a Curate c. As to the pretence of six Months notice from the time of the Refusal 't was never insisted on at the Bar in C. B. or B. R. and the Judge who doubted did only say he was not fully satisfied with the current Opinion of the Books his doubt arose upon this That the cause of Refusal was not within the Partron's knowledge Suppose the Man had not Episcopal Orders but pretended to them and the Patron knew nothing of the matter should this Presentation prevent lapse and the rest were all of another Opinion and the Books are full to this effect for the Patron ought to present a Man qualified otherwise 't is as no Presentation and then lapse in course Suppose he had presented a mere laicus 't is as none suppose he had presented a Woman as idonea persona 't is as none and these instances may seem Trivial but our Books do mention them 2 Roll's Abridg. 364. Kelway 49.59 34 Hen. 7.21 14 Hen. 7.21 and Dyer 227. and Sir Symon Degges Parson's Gounsellor Upon the whole the Question is whether a Court of Law shall Repeal the Statute of Articuli Cleri whether the Plea shall be adjudged ill which is in the very words of that Statute when the same Fact was never pleaded otherwise nay when it hath been pleaded thus often times and never excepted against till now Wherefore it was prayed that the Judgment might be Reversed On the other side 't was argued That the Bishop's Plea below was too general and the Plaintiffs Replication good that his being Ordained a Priest and a Licensed Preacher is enough that this is an Answer to the Allegation of the Minus Literatus his being a Priest is a kind of a supersedeas to his Examination that there was no Learning requisite to his having a Cure of Souls which was not Antecedently necessary to his receiving of Orders That he ought not to be admitted into Orders unless he be assured of or named to some Curacy all which supposes the Qualifications Requisite for a Benefice with Cure of Souls then 't was urged that here was not notice sufficient for 't is not till many days after the Refusal for this might have put Hele the Patron beyond the possibility
of making a new Presentation And in all pleadings of this sort the notice is generally alledged to be the same day or within a day or two at the most That certainly it ought to be with convenient notice But then it was urged That the six Months ought not to be from the Death of the last Incumbent if there be a person Criminal presented which the Patron doth or may know as well as the Bishop there the six Months must be from the Death but if it be upon a refusal for a Cause which lies only in the Bishop's knowledge then it must be only from the notice and that notice ought to be personal but if the Months incur from the Death the notice should be in conveient time and what that is the Court must Judge Then it was urged from Speccot's Case That this Plea is too general and uncertain that a Temporal right being concerned the Bishop ought to have set forth more particularly and distinctly the cause of his Refusal 8 Rep. 68. the certain cause of a Divorse must be shewn 11 Hen. 7. 27. 2 Leon. 169. The Ordinary is a Judge only of the matter of Fact if true not if this matter pretended be a cause of Refusal he ought to alledge that so particularly as to manifest it to the Court in which the Suit depends That 't is a legal cause of Refusal He is not a Judge whether Hodder's insufficiency in any one point of Learning be a good cause of Refusal for if it should be so the Temporal Right of Patronage would be very precarious The Court ought to have enough before them whereon to Judge of the Cause as well as that on Issue may be joyned and tried here 't is only said that he is less sufficient not that he is altogether illiterate this will put it in the Power of the Ordinary to refuse for want of knowledge in any Learning as he thinks fit as Mathematicks or Anatomy without which a Man may be well Qualified to be the Rector of a Benefice and the consequence of such Opinion will be much to the prejudice of Lay Patrons that certainty in Pleading ought to be encouraged for the prevention of the exercise of Arbitrary discretionary Power that the Wisdom of the Common-Law is to reduce things to single Questions that the Determination upon them may be plain and certain and known and the reasons of such Determinations may appear which cannot well be done if general Allegations or Pleadings be countenanced for which and other Reasons urged by the Counsel who argued with the Judgment 't was prayed that the Judgment might be affirmed It was replied on behalf of the Plaintiff in the Writ of Error that the Books were very plain that the six Months were to incur from the Death of the Incumbent and then if there were not notice in convenient and due time in order to enable the Patron to present again that this ought to come on the other side That to require Learning in Presentees to Benefices would promote the Honour of the Church nay of the Nation in general That every Man who knew this Presentee and his Ignorance even as to the Latin Tongue must acknowledge that the Reverend Prelate who refused him had done worthily and becoming the Character of his Order Family and Person and therefore 't was prayed that the Judgment should be Reversed and it was Reversed Robert Davis versus Dr. John Speed WRIT of Error on a Judgment in Ejectment in the King 's Bench for certain Lands in Hamp-Shire the Declaration was upon the Demise of Francis Cockey The Verdict finds that William Horne and Ann his Wise were seized of the Lands in Question in their Demesne as of Fee in Right of the Wife that they made and executed a Deed Covenanting to Levy a Fine thereof to the use of the Heirs of the said William Horne lawfully begotten and to be begotten on the Body of the said Ann his Wife and for default of such Issue then to the use of the right Heirs of the said William Horne for ever and a Fine was Levied accordingly to these uses that William and Ann were seized prout Lex postulat that they had Issue William Horne their Son who Died without Issue in the Life of William and Ann that she Died and William the Father and Husband Survived her that then he Died without Issue that the lessor of the Plaintiff is Sister and Heir of the said William Horne that after his Death she entred and was seized prout Lex postulat that Elizabeth Joanna and others were Co-heirs of the said Ann that their Estate and Interest came by mean conveyances to the Defendant Speed That he was seized prout Lex postulat that the Lessor of the Plaintiff entered and Ousted the said Speed and made the Demise in the Declaration and that the Plaintiff entered and was Possessed till the Defendant entered upon him and Ousted him And if it shall appear to the Court that the Desenant's entry was lawful they find the Defendant not Guilty and if c. upon this special Verdict Judgment was given in B. R. for the Defendant And now it was Argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was Erroneous and ought to be Reversed for that these Lands belonged to the Heirs of the Husband by force of this Deed and Fine that this was in the Case of an Use which was to be construed as much according to the intent of the Parties as a will That if by any construction that intent could be fulfilled it ought That the intent of the parties here was plain to give this Estate to the Husband and his Heirs that uses are to be governed by Equity and that therefore the meaning of the persons concerned was to be pursued That the Woman intended to take nothing her self nor to reserve any thing but to part with the whole That here was an use by implication in the Husband tho' none could result back to the Husband because he had none before but that in this case as in that of a Will an use might by implication very well be raised to the Husband and then this might be good by way of Remainder after the Death of the Husband or create an Estate Tail in him by coupling the use implied to him for Life with that to the Heirs of his Body and that if it were not so then that it was good as a springing contingent use to the Heirs of the Body of the Husband c. and that in the mean time till that Contingency happened the same was to the use of the Wife and her Heirs And that this Construction contradicted no Rule of Law That it was no more than was allowed in case of a Will by way of Executory Devise according to Pell and Brown's Case in 2 Cro. that the Estate should remain in the Wife and her Heirs during the Life of the Husband
be affirmed and it was affirmed Sir Edward Hungerford and John Hill Executors and Devisees of Sir William Basset deceased Plaintiffs versus Edward Nosworthy Defendant WRit of Error to Reverse a Judgment in B. R. upon a Special Verdict in Ejectment by Hitchins the Lessee of Nosworthy against Sir William Basset Defendant for the Mannor of Lanrock and other Lands in Cornwall wherein upon Not Guilty pleaded and a Trial at Bar the Jury find That Sir Henry Killegrew was seized in Fee of the Lands in question and on the 12th of November 1644. made his Will in writing which follows in these words I Henry Killegrew c. and so they set forth the Will whereby Sir Henry Killegrew devised the Premisses to Mrs. Jane Berkley his near Kinswoman for Life with Remainder over to Henry Killegrew alias Hill Sir Henry's Natural Son in Tail and makes Mrs. Berkley sole Executrix They further find that after the making of that Testament and before the time when c. viz. about the Feast of St. Michael in the Year 1645. Condidit fecit aliud Testamentum in scriptis sed quid fuit content ' in eodem ult ' mentionat ' Testamento vel quale fuit purportum sive effectus inde juratoribus praed ' non constat And that Sir Henry on the 29th of September 1646. died seized of the said Lands that Mrs. Jane Barkley Devisee of the said Will in 1644. by Lease and Release conveyed to Mr. Nosworthy's Father and that the Father died in 1684. that Mr. Nosworthy is Son and Heir to him that Sir William Basset is Cosin and Heir to Sir Henry viz. Son and Heir of Elizabeth Basset Daughter and Heir of Sir Joseph Killegrew elder Brother of Sir Henry the Testator that Nosworthy the Lessor of the Plaintiff entred and made the Lease in the Declaration c. But upon the whole Matter whether the Said Testament made in writing 1645. was a Revocation in Law of the said Devise of the said Lands to Mrs. Berkley they are ignorant and pray the Judgment of the Court Et si And upon this Judgment was given for the Plaintiff in the Ejectment And now it was argued That the Judgment was Erroneous that this last Will could not be taken to be a duplicate of the former but must be deemed a Revocation that no Will is good but the last that every Will is revokable till death that the making of another doth import a Revocation of all former ones tho' it be not so expresly declared in writing for it must be the last or nothing that this Conveyance by Will was anciently a Priviledge by the Civil Law for People in Extremis who had not the time or assistance necessary to make a formal Alienation and chiefly intended for Military Men who were always supposed to be under those Circumstances and therefore the Ceremonies and number of Witnesses required of others were dispensed with as to Soldiers but now the Rules for Military Testaments as they are called are allowed in most Cases that as to Lands by our Law was a Priviledge only given to some Boroughs and Places within the Kingdom and particular Custom gave the liberty of disposing Lands or Houses by Will and that by nuncupative Will or Parol without writing so is Bracton lib. 4. fol. 272. Fleta lib. 5. cap. 5. Potest legari catallum tam hereditas quam perquisitum per Barones London Burgenses Oxon 1 Inst 111. that then came the Statute of Hen. 8. and impowers a Devise by a Man's last Will and Testament in writing but still 't is by his last Will. And so is Littleton sect 168. If divers Wills the latter shall stand and the others are void 1 Inst 112. In truth 't is plain Law the first Grant and the last Testament In Swinb 1 part sect 5. p. 14. no Man can die with two Wills but he may with divers Codicils and the latter doth not hinder the former so long as they be not contrary Another difference there is between Wills and Codicils If two Testaments be found and it can't be known which is first or last both are void but the latter countermands the first tho' there be a Clause in the first that it shall not be revoked and tho' an Oath were taken not to revoke because the Law is so that the very making of a latter doth revoke the former So is Liuwood's Provincial ' de Testamentis Justice Dodderidge's Office of Executor published by Wentworth 29. A verbal Will revokes a former written Will Forse and Hembling 4 Rep. 60 61. Plowd 541. Perkins sect 178 179. and sect 478. The 2 Hen. 5.8 is full to this purpose There 's an Action by an Executor against two Executors and they plead a Testament whereby they are made Executors and the Plaintiff replys that he afterwards made another and himself Executor and held that by the second the first became void Now the meaning of these Books cannot be that a Will expresly revoking is the only Will that can make a Revocation nor is it that a Contrariety or Repugnance between the one and the other is necessary to make a Revocation for tho' there be no new Will made yet a Revocation may be by word of Mouth as 2 Cro. 49.115 1 Cro. 51.3 Cro. 781. nay a void Bequest shall revoke a Will so shall a Deed that hath no effect as Feoffment without livery a Devise to J.S. or to a Corporation when there is no such will do it so that 't is not the Contradiction between the disposal which revokes for that which is no disposition at all will do it wherefore the meaning of the Authors cited is somewhat else and it can only be this That there is somewhat particular in a Will to that Instrument of Conveyance more than to any other that even the making of a new Will is a sufficient Revocation the words are plain by the making a new Will the former are all destroyed for there can be but one last And when a Man makes and declares a new Will that new Will must be presumed to contain his whole Mind concerning the disposition of his Estate declaring his Will imports thus much and excludes all other When a Man would alter part of his Will there 's a proper Instrument for it called a Codicil which is known in the Law as well as that of a Will here 's nothing found of a reference to the former to judge it otherwise would confound the use of Wills and Codicils and the difference between them 'T is true that a Man may make partial Wills of several parts of his Estate and all may stand together but then they must be declared to be Wills concerning particular things and they are but several pieces of the same Will tho' written in different Papers but then in pleading one of them you must not generally say he made ult ' voluntatem but ultimam voluntat ' of such a thing but here 't
is aliud testamentum i.e. a general Testament The 2 Rich. 3. fol. 3. is directly thus The Defendant pleads one Will the Plaintiff replies another and exception taken because he did not traverse the former but held needless to do so quia per ult ' testamentum ut placitatur generaliter primum testamentum revocatur in omnibus and it cannot be pretended that this might be the same Will written over again for if so it could not be aliud it would be the same these are not quibbles upon words for can it be said that this is a Devise by the last Will of Sir H. when there 's another Nor is it an Objection that the Contents do not appear for the Will belongs not to the Heir to keep and consequently not to shew in pleading he is not bound to a profert 't is enough that there was a subsequent Will And as the latter may confirm or be consistent with the former so it may not be so and the consistency is not to be presumed especially against an Heir at Law and in possession In the Case of Coward and Marshal 3 Cro. 721. the Substance of both are declared and thereby they appeared to be consistent and consequently no Revocation here Eadem mens sic testandi the same intent of disposing his Estate the same way can never be thought to continue for then there had been no occasion of making another Will If this be not a Revocation 't is an act void and to no purpose which is never to be intended Then 't was insisted on That the bare act of making and publishing another Will is a Revocation and the finding of the Contents unknown is void If this be not a Will 't is a Codicil and that is contrary to the finding of the Jury for the Verdict mentions a second Substantive independent Will without reference to the former which second Will is a Revocation and therefore 't was prayed that the Judgment should be reversed It was argued on the other side in behalf of Mr. Nosworthy That this was no Revocation that here had been a great stir about nothing for that nothing appeared against his Title that a Man may make a Will of several things at several times and they both shall stand that a deliberate Will being made the Contents whereof are known shall never be revoked by that which is not known nothing can be judged upon that which doth not appear and consequently it can never be judged to be a Revocation Here 's another Will and nothing is given by it nothing is found to be given by this subsequent Will The form of entring the ancient Judgments was Quibus visis lectis auditis per Curiam plene intellectis now what is here read to make a Revocation 2 Rich. 3. fol. 3. is with the Judgment for there 't is replied that he made another Executor there are the Contents pleaded sufficient to maintain his Count and answer the Defendant's Bar the Book is per hoc quod alius Executor nominatur Then was cited 1 Cro. 51. the Reason given is quia in dubiis non presumitur pro testamento and here being a good Will at the most the other is doubtful 1 Cro. 114 115. Several Wills of several things may be made And the same Book 595. 10 Car. 1. which Refolution Serjeant Maynard in arguing this Case below said that he heard in that Court of Kings Bench 'T is the Subject Matter of the Wills and the Repugnancy which makes the Revocation In this very Case in the Exchequer upon an English Bill 't was held by Hale to be no Revocation 't is in Hardres 375. Coke upon Littleton which hath been quoted Comments upon these words several Devises and if there be no Devise in the second there can be no sense or meaning in it and consequently unless some meaning appear it can never be an Evidence of a change of his Mind as it might be a Revocation so it might be otherwise and he that will have it to be a Revocation must prove it to be such No Man can affirm that every Will must necessarily be a Revocation of a former for the second Will might be of another thing as Goods or of another parcel of Land or in confirmation of the former If in these and many other like Cases a latter Will is no Revocation of a former how can it possibly with justice be concluded that a latter Will without Contents Purport or Effect shall be a Revocation of a former And tho' the Jury have in this Case believed the Witnesses and found that another Will was made it may be of dangerous Consequence to encourage and construe this a Revocation without knowing the Contents for no Will can be secure against the swearing of a new Will if there be no necessity of shewing it or proving what it was For which and other Reasons it was prayed that the Judgment might be affirmed and it was affirmed Sir Simon Leach al' Plaintiffs Versus J. Thomson Lessee of Charles Leach Defendant WRit of Error to Reverse a Judgment given in B. R. upon a Special Verdict on a Trial at Bar in Ejectment brought by Thomson on the Demise of Charles Leach the Special Verdict finds that Nicholas Leach was seized of the Lands in question in his Demesne as of Fee and being so seized 9 Nov. 19 Car. 2. he makes his last Will and thereby devises the Premisses to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to Simon Leach his Brother for his Life and after his Decease to the first Son of the Body of the said Simon lawfully to be begotten and the Heirs Males of the Body of such first Son lawfully to be begotten and for default of such Issue to the second c. and so on to the eighth Sons of all and every other Sons c. and for default of such Issue to Sir Simon Leach his Kinsman Son and Heir of Simon Leach of Cadley in Com' Devon ' Esq deceased and the Heirs Males of his Body and for default of such Issue to the right Heirs of him the said Nicholas for ever Then they find That the Lands in the Declaration and those in the Will are the same that afterwards viz. 10 Apr. 20 Car. 2. Nicholas died seized without Issue of his Body that after his Death the said Simon his Brother and Heir Entred and was seized in his Demesne ut de libero tenemento for term of his Life Remainder to the first Son of the Body of the said Simon the Brother and the Heirs of the Body of such first Son lawfully to be begotten and for default of such to the second c. Remainder to Sir Simon in Tail Remainder to the said Simon the Brother and his Heirs belonging That Simon Leach the Brother being so seized afterwards viz. 20 Aug. 20 Car. 2. took to Wife Anne the Daughter of Vnton Crook that
All their Arguments will hold as well to a Month Week or Days surviving of the Mother as to this of two Years and therefore it must be thus construed to be her Intent that the Devises over should take effect if the Child should not live to an Age of Maturity and Power of Disposition And as to the pretence of the Child's starving in the mean time there neither is nor can be any weight in that for the Interest and Produce of the whole during all that time must remain and be to and for the benefit of the Child Wherefore upon the whole Matter 't was prayed that the Decree should be affirmed and it was affirmed Philip Jermin and Sarah Vxor ejus ' Plaintiffs Versus Mary Orchard Widow Defendant WRit of Error to Reverse a Judgment of Reversal given in the Exchequer Chamber upon a Judgment given in the Kings Bench for the Plaintiffs in an Action of Trespass for the mean Profits after a Recovery in Ejectment and Possession had thereupon The Case was this upon Record The Plaintiffs declare that the Defendant 1 Sept. 1672. their Close c. vi armis c. did break and upon the Possession of the Plaintiff did enter and the Plaintiffs from their Possession did expel and remove and them so being removed and expelled for a long time viz. from the said 1 Sept. 1672. to the time of exhibiting the Bill viz. 6 May 1685. did hold out from the same by which they lost the Prosits thereof c. Et al' Enormia c. The Defendant by Plea takes Issue as to the Force and Issue thereon and as to part of the Trespass pleads the Statute of Limitations and as to the residue of the Trespass pleads that Sir William Portman made a Lease to one Trowbridge for 1000 years and by mesne Assignments derives a Title down to Thomas Nicholas and that he in his Life time by Indenture assigned to the Defendant The Plaintiffs Reply and as to the first part of the Plea viz. of the Statute of Limitations they demur and as to the other part of the Plea they tender a Traverse and deny that Thomas Nicholas did assign the Premisses to the Defendant The Defendant joyns in Demurrer as to the first part of the Plea viz. the Statute of Limitations And as to the other part she takes Issue upon the Traverse which Issue is joyned and a Venire awarded tam ad triand ' the two Issues quam ad inquirend ' de dampnis upon the Demurrer The Jury find that Thomas Nicholas was possessed in manner as the Defendant in her Plea hath alledged and that he did make Seal and as his Deed deliver the Indenture in the Plea mentioned which said Indenture follows in these words and so set forth the whole in which after a Recital of the Lease and a Deducement of the Title down are these words viz. The said Thomas as well for and in consideration of the natural Love and Affection which he beareth to the Defendant his Grand child as for other good Causes and Considerations hath granted assigned and set over and by these Presents doth grant assign and set over unto the said Mary her Executors Administrators and Assigns all the said Cottage Barn and Lands and all and singular other the Premisses herein before recited or mentioned with the Appurtenances to the same belonging or appertaining together with the said recited Lease and all Writings and Evidences touching the Premisses to have and to hold the said Cottage Barn and Premisses and every part thereof with the Appurtenances unto the said Defendant Mary her Executors Administrators and Assigns from and immediately after the Death and Decease of the said Thomas Nicholas party to these presents and Mary his Wife unto the end of the term and for and during all the rest and residne of the said term of 1000 Years which shall be therein to come and unexpired by and under the yearly Rents Covenants c. expressed in the said Original Indenture of Lease Then the Jury leave it to the Court whether the Deed of Assignment be good in Law or not and conclude specially if the Assignment be not good in Law then they find for the Plaintiffs and Assess Damages 50 l. and 40 s. Costs and thereupon c. And now it was argued for the Plaintiff and it was said in the first place That this Case was extraordinary that tho' the Majority of the Judges in Westminster-hall were of Opinion with the Plaintiffs yet they were forced to sue this Writ they had the four Judges of the King 's Bench and the then Mr. Justice Powell and the then Baron Powell concurring with the King 's Bench and the chief Baron Atkins being absent the other Five in the Exchequer-Chamber reversed the Judgment it having been resolved upon the Stat. of Eliz. which erects that Jurisdiction That the Concurrence of six are not necessary to reverse but only that six must be present to make a Court so that here were six to five for the Plaintiff and yet he hath lost it Then it was argued That there had been two Things insisted on below one was the finding of Damages generally and the other was as to the Validity of the Assignment and as to the finding it was said That the Matter of the Force is meer Form and if there had been no non prosequi the same could not make an Error That in C. B. and B. R. the Issue upon the vi armis c. is seldom or never taken notice of no Entry is made of it upon the postea at all unless a wounding or some such other special Matter were mixt with it in the same Issue That 't is held in the Case of Law and King 1 Saund ' 81. If nothing be answered to the vi armis in a special Plea 't is well upon a general Demurrer and the 7 Hen. 6. 13. and 1 Hen. 7.19 are plain That if the Party have the special Matter which he pleads found for him the vi armis shall not be inquired of So if the Defendant have Judgment against him upon Demurrer to the special Matter pleaded by him the vi armis shall never be tried tho' Issue were joyned upon it but the Party shall be fined upon the Capiatur c. without any Inquiry So is the King and Hopper 2 Cro. 599. in a Scire Facias on a Recognizance for the good Behaviour special Matter pleaded held That the Jury need not inquire about the vi armis if such Special Matter be found for the Defendant much more is it so in case it be found for the Plaintiff for there the Act which is found imports it c. and it shall be intended to be vi armis c. and the Book of Hen. 6. is full in it no need of any Inquiry in such Case And in this Point both the Courts having concurred the Counsel for the Defendant did not contest
of Cases were quoted concerning the King's Grants Misrecitals false Recitals and Deceit c. Then it was strenuously insisted upon That the Recitals and the Granting Clause must be consider'd and judged of together that the contrary Opinion is to make the Granting Part to be without any Consideration 't is to have a Conclusion without Premisses an igitur without a Cause That eadem servitia can never be intended new ones That secundum tenorem must referr to the Appendant Advowson and therefore the Advowson in gross here declared upon and pleaded to can never pass by this Grant and upon the whole it was prayed That the Judgment might be affirmed It was replied on behalf of the Plaintiff in Error That as to the Variance in the Title of Knight no Answer had been given to the reasonable Distinction between the Case of Grants and that of Writs and Indictments that here was no Proof or Appearance of a Diversity of Persons That as to the Grant it self secund ' tenorem could mean only a Reference to the Interest or Estate granted by them not to the thing or the Nature of it That such Words signified only as fully and largely they had no express Relation to the Quality of the Advowson whether in gross or appendant That by such Niceties any or most Patents might be avoided That Grants of Honours as well as of Interests if questioned must be under the same Rule and the Considerations upon which they are grounded may be subject to Inquiry if true or false c. That the Patent of it self without Reference to the pleading was good That the Judgment desired was to condemn a Patent as void because another Patent recited in it was so which perhaps was not fully recited and if it were was not in Judgment before the Court and the substance of what was urged before was in short repeated and prayed That the Judgment might be revers'd and it was accordingly revers'd and Mr. Pierse Scroope being dead presented Francis Pemberton his Clerk who was admitted instituted and inducted c. FINIS THE NAMES OF THE Principal Cases 1. DOminus Rex Viscount Purbeck Page 1 2. Duvall versus Price Page 12 3. John Duvall and Elizabeth his Wife versus William Terry of London Merchant Page 15 4. William Dolphin and Katharine his Wife versus Francis Haynes Page 17 5. Dormer Sheppard al' versus Joseph Wright al' Page 18 6. Whitfield Ux ' al' versus Paylor Ux ' al' Page 20 7. Thomas Arnold versus Mr. Attorney General and Matthew Johnson Esq Thomas Bedford Gent. Page 22 8. Sir Richard Dutton versus Richard Howell Richard Grey and Robert Chaplyn Executors of Sir John Witham decased Page 24 9. Philips versus Bury Page 35 10. Dr. William Oldis versus Charles Donmille Page 58 11. Smith Ux ' versus Dean and Chapter of St. Paul's London and Lewis Ruggle Page 67 12. The Countess of Radnor versus Vandebendy al' Page 69 13. Dominus Rex versus Baden Page 72 14. Hall al' Executors of Thomas Thynne versus Jane Potter Administratrix of George Potter Page 76 15. The Society of the Governour and Assistants of the New Plantation of Vlster in the Kingdom of Ireland versus William Lord Bishop of Derry Page 78 16. Sir Caesar Wood aliàs Cranmer versus Duke of South-hampton Page 83 17. Sir Caesar Wood aliàs Cranmer versus Thomas Webb Page 87 18. Jonathan Lord Bishop of Exeter al' versus Sampson Hele. Page 88 19. Robert Davis versus Dr. John Speed Page 104 20. Wats al' versus Crooke Page 108 21. Lee Warner versus William North. Page 110 22. Briggs versus Clark ibid. 23. William Bridgman al' versus Rowland Holt al' Page 111 24. Dominus Rex versus Walcort Page 127 25. Sir Evan Lloyd Bar. and Dame Mary his Wife and Sidney Godolphin and Susan his Wife versus Richard Carew Bar. an Infant the Son and Heir of Sir John Carew Bar. deceased Page 137 26. Sir William Morley Knight of the Bathe versus Peter Jones Page 140 27. Sir Edward Hungerford and John Hill Executors and Devisees of Sir William Basset versus Edward Nosworthy Page 146 28. Sir Simon Leach al' versus John Thompson Lessee of Charles Leach Page 150 29. Henry Earl of Lincoln versus Samuel Roll al' Page 154 30. John Fox Gen ' versus Simon Harcourt Esq Page 158 31. Henry Lord Bishop of London and Dr. Birch versus Attorney General pro Domino Rege Page 164 32. Dominus Rex versus Reginald Tucker Page 186 33. Joseph Eastmond Executor of Hester Eastmond and Samuel Neyle versus Edwyn Sands Clerk Page 192 34. Magdalen Foubert versus Charles de Cresseron Page 194 35. Philip Jermin and Sarah his Wife versus Mary Orchard Page 199 36. Bennet Swayne versus William Fawkner and John Lane Executors of B. M. Page 207 37. Dominus Rex versus Episcop ' Cestr ' and Richard Pierse Page 212
Honour is Surrendred and a new Honour granted the former is either extinguished or not before the other takes effect if not then the Party hath both together against the will of the Donor and perhaps the new Honour may be of that Name and Place and those Persons may be concerned in it that will not permit it to be effected and if it be in the power of the Ancestor for the advantage of his Posterity by the Surrender of one Honour to take a greater it may be also in his power to do it for his prejudice As to the Objection That by the same Reason an Honour may be extinguished it may also be Transferred he answered That there was a great disparity betwixt them for as to Alienations of Honours there 's a great reason they should be disallowed for they all flow from the Prince and therefore 't is not fit they should be conferred on any but by the Prince tho' the King 's of England have granted power to a General to give the Honour of Knighthood c. in the Field for the Reward and Incouragement of Valour yet this granting of Nobility is a Prerogative peculiar to the King's Person alone no Man else can ennoble another Time was indeed when the Earls of Chester having Counties Palatine by virtue of their Jura Regalia did create Barons yet they never sate in Parliament as Peers because Peerage being a thing of so high a nature cannot be given by any but a Soveraign and is given as a Trust and Obligation so that common Reason saith they are not transferrable It is said in our Law that where Offices are granted to a Man in Fee See Jones 122 123. he may grant it over yet in some Cases they are so near to the Crown that they cannot be transferred but must descend with the Blood upon the same Reason no Man can ever transfer an Honour for the near Relation which it hath to the Crown but in case of Extinguishment that Relation and Trust ceaseth and so they are different Cases Then lastly as to the great Objection of the Judgment of the House of Lords in Roger Stafford's Case Anno 1640. he answered That notwithstanding that Case their Lordships had given him leave to argue it and therefore they intended not that should be any Impediment 2. That is no Judgment for they being a Court of Judicature do as other Judges judge of the Matter before them only Then the Question was Whether an Honour could descend to the half Blood They refetred it to the Judges who were of Opinion that it should Thereupon ariseth another Question Whether a Man might Convey or Transfer his Honour to another 'T was resolved he might not This drew another Question whereupon they resolved that a Lord could not Surrender his Dignity the Original Cause was about a Descent to the half Blood the Resolution is he cannot Surrender how then can they pretend that to be a Judgment when the Question in point of Judgment was not before them Suppose it had been resolved and it 's a wonder it had not all that time that a Lord could not forfeit and that had been a third step to have made it a perfect Business for considering the times it had been a most convenient Resolution But besides all that the King's Counsel were never heard in the point and the rejecting the Opinions of Learned Men shows it was no Resolution of the whole House tho' entred upon the Journal and therefore he prayed Judgment against the Petitioner The Earl of Shaftsbury spoke in the House for the Petitioner The stress of the Argument for the King in this Case is founded upon these two Assertions 1 That Honours are taken to be within the Statute de Donis c. and the general Rules of that Statute 2. And then secondly That Honours are to be governed as other Inheritances by the Rule of the Common Law As for the first it hath not been proved for the Resolution in Nevil's Case 2 Jac. was Extrajudicial and no Judgment of any Cause before them and in such Cases the Judges do not hold themselves to be upon Oath and if there be two or more of another Opinion they do not refuse to sign the Resolution of the major part and so it goes under the denomination of all the Judges but if it were a Judgment of them altogether they could neither alter nor make new the Law neither could they make that intended within the Statute de Donis c. which was not in being till many Ages after Beauchamp in Richard the Second's time being the first Honour that was entailed by Patent 2. The second Assertion is contrary to the Opinion of the most Learned Men the Honour and Dignity of the House the constant practise of Westminster-hall and the direct Evidence of the thing it self Justice Berkley a very learned Judge declared his Opinion Febr. 6. 1640. as appears by the Records of this House That Honours descend from the first that was seized of them contrary to the Rules of other Inheritances and that Honours are not governed by the Rules of the Common Law Justice Dodderidge in Jones 207. is of opinion That Honours are Personal Dignities which are affixed to the Blood the Lords never yet suffered their Honours to be tried at any Court at Law or any other where save before themselves tho' their other Inheritances are tried there as well as other Mens So possessio fratris holds of Lands but not of a Dignity which is not disposed of as other Inheritances nor will it be guided by the strict Rules of Law The Lord Coke is of Opinion in Bedford's Case That an Honour could not be taken away but by Act of Parliament therefore it will be allowed that the concurrence of all Parties concerned may extinguish this as well as other Inheritances but the Concurrence of all can't be without Act of Parliament for the whole Kingdom have an Interest in the Peerage of every Lord It is a dangerous Doctrine to say our Judicature and Legislature is our own only The House of Lords is the next thing to the Crown tho' that be far above them yet those that reach at that must take them out of the way first they were voted useless and dangerous before the Crown was laid aside and as in Descent of the Crown the whole Kingdom hath such an Interest in it as the King cannot Surrender or alien it so in a proportionable degree tho' far less the King and Kingdom have an Interest in their Lordships and Dignities and Titles It is true they may be forfeited but it doth not follow that they may be extinguished by Surrender There be two Reasons for the Forfeiture 1. There is a Condition in Law that they shall be true and loyal to the Government 2. Honours are inherent in the Blood and when that is corrupted that which is inherent is taken away but in case of a Surrender these Reasons do
in danger of a severe Prosecution as an Enemy to the King c. ad damp ' mill ' librar ' quo minus He can satisfie the King and Queen the Debts he owes them Et inde producit sect ' c. pleg ' c. The Defendant pleads Non cul Jury find pro quaerent ' and assess Damages 200 l. and Judgment accordingly posteaque scil 6 Julij Anno 5. iidem Dominus Rex Domina Regina Mand ' hic Breve de Errore Corrigend ' sub Magno Sigillo Anglie Thes Baron ' de Scaccar ' suo direct ' in haec verba directed Thes Baronibus suis de Scaccar ' suo quia in recordo processu c. Error ' intervenit manifestus ad grave damp ' c. sicut ex querela sua accepimus ac cum in 31 Edw. 3. inter cetera concordat ' stabilit ' fuit quod in omnibus casibus Regem aut al' personas tangent ' ubi quis queritur de Errore facto in Scaccario Cancellar ' Thes Venire fac ' coram eis in aliquam Cameram Consilij juxta Scaccar ' record ' process ' hujusmodi extra dict' Scacc ' assumptis sibi justic ' al' peritis tal ' qual ' sibi videbitur fore assumend ' vocari fac ' coram eis Barones de Scaccar ' praed ' ad audiend ' Informationes suas causas judicior ' suor ' super hoc negotium hujusmodi debite facer ' Examinari Et si quis Error ' invent ' fuer ' illum corrigend ' rotulos Emendari ac postea eos in dictum Scaccar ' ad Execution ' inde faciend ' remitti fac ' sicut pertinet prout in eodem Statuto plen ' Continent ' Nos igitur volentes errorem si quis fuit ' juxta formam Statuti praed ' corrigi partibus praed ' plenam c. Vobis mandamus quod si judicium inde reddit ' sit hinc record ' process ' praed ' cum omnibus ea tangentibus coram Domino Custod ' Magni Sigilli Anglia vobis praefat ' Thes in Camera Consilij juxta Scaccar ' praed ' vocat ' le Councel Chamber die Martis viz. 31 Octobris prox ' futur ' Venire fac ' ut idem Dominus Custos Magni Sigilli Angliae vos praefat ' Thesaur ' Visis Examinatis c. ulterius in hac parte de Concilio Justiciar ' al' peritor ' hujusmodi Fieri fac ' quod de jure secund ' formam Statut ' praed ' fuit faciend ' Test ' nobis ipsis apud W. c. Ad quem diem Martis viz. 31 die Octobris coram Johanne Somers Mil ' Domino Custode Magni Sigilli Angliae nullo Thesaur ' adtnuc Existent ' hic scil ' in Camera Consilij apud Westm ' praed ' venit ' praed ' Johannes Duvall per S. A. Attorn ' suum Et praed ' Thesaur ' Barones record ' process ' praed ' cum omnibus ea tangentibus tunc hic Venire faciunt Et super hoc the said J. Duvall assigns the General Error and the said Price pleads In nullo est Erratum and after several Curia advisare's and days given super hoc visis intellectis omnibus singulis praemissis per praefat ' Dominum Custodem Magni Sigilli praed ' nullo Thesaur ' adtunc Existent ' maturaque deliberatione inde habita assumptis sibi J. Holt Mil ' Capital ' Justiciar ' c. G. Treby Mil ' c. Vocatisque coram eo Baronibus de Scaccar ' praed ' auditisque rationibus Baronum praed ' Visum est praefat ' Custodi Magni Sigilli praed ' nullo Thesaur ' adtunc Existent ' de Concilio Justiciar ' praed ' quod in record ' aut processu praed ' vel redditione jud ' praed ' in nullo est Erratum Ideo consideratum est per praed ' Custodem Magni Sigilli Anglie nullo Thesaur ' adtunc Existent ' quod judicium praed ' in omnibus affirmatur c. Upon the General Error assigned here in the Judgment and Affirmance aforesaid the single Query was If these words He is disaffected to the Government be actionable And it was argued by the Counsel for the Plaintiff in the Writ of Error that they were not because they are general and uncertain do not import any particular Crime which exposes to any particular Penalty and they carry no Reference to his Office and tho' he be alledged to be a Justice of the Peace yet there 's no Colloquium laid concerning his Office To make words actionable they must either tend to the Scandal and Discredit of the Party or such if true as must bring Damage to the Party of whom they are spoken otherwise without special Damage laid and proved there 's no reason for the Jury to give Damages because he suffers none In ancient time these Actions were rare the Year-Books are little acquainted with them and tho' latter Ages have countenanced them yet it hath been under certain Rules and Limitations as that they ought to be particular and clear for if they are so general as to be ambiguous no Action is warrantable upon them and therefore they must be of a single and known Sense and such against which no other Intendment can reasonably be admitted Slander raised by Argument or Implication or Inference only is not enough to maintain an Action And tho' the Causa dicendi be not inquirable now after a Jury hath found them spoken as laid viz. maliciously yet if the words themselves do not imply Malice and Damage the use of those Adverbs which are commonly mention'd in such Declarations will not alter the Case for Men are to be answerable only for their own words and not for words expounded or described in another manner than the Speaker intended Here the word disaffected is none of the plainest nor is the word Government much plainer the first is only a Negative and to say He is not affected to the Government goes only to a want of Zeal or an indifference of Temper and doth not carry in it any treasonable Intent or Purpose much less any Act done And as to the pretended Special Damage in the loss of his Prince's Favour or incurring his Displeasure that is such an Allegation as should not have been made 't is neither mannerly nor justifiable in the Plaintiff to affirm such a thing upon Record And as to the loss of his Office that can be no Damage the same being no Place of Profit but meerly of burden and trouble 'T was further urged That if these words were allowed to be actionable Tory Whig or Jacobite or any other common rude uncertain Terms in Discourse might pretend to it according to the respective Turn of Times and consequently no Body would know what Discourse is allowable As ill Tongues were to be corrected so care is to be
Court recommitted which is the same Assault Taking and Imprisonment and Traverses absque hoc that he was guilty of the Assaulting Taking or Imprisoning him within the time last mentioned at London or elsewhere then in the Isle of Barbadees or otherwise or in other manner then as before The Plaintiff demurred and the Defendant joyn'd in Demurrer and Judgment was given for the Plaintiff and a Venire awarded tam ad triand ' exitum quam ad inquirend ' de dampnis c. and the Issue was found pro quaerent ' and 6 d. Damages and on the Demurrer 500 l. Damages and Judgment for Damages and Costs amounting in the whole to 590 l. The Plaintiff Sir J. Witham dying Trin. 2 Wil. Mar. the Judgment was revived by Scire Facias brought by Howel Gray and Chaplain Executors of Sir J. W. quoad omnia bona catalla sua except one Debt due by Bond from Henry Wakefield And at the Return of the Scire Fac ' the Defendant appears and demurs to the Scire Facias and there is an Award of Execution and thereupon a Writ of Error is brought in the Exchequer Chamber and the Judgment was affirmed Then a Writ of Error is brought in Parliament and the General Error assigned And here it was argued on the behalf of the Plaintiff in the Writ of Error that this Action did not lye against him because it was brought against him for that which he did as a Judge and so it appeared on the Record according to 12 Rep. 25. that the Rule seems the same for one sort of Judge as well as for another that this Person was lawfully made a Governour and so had all the Powers of a Governour that this was a Commitment only till he found Security tho' not so Expressed that this is not counsable here in Westminster-hall that he was only censurable by the King that the Charge is sufficient in that Sir J. W. had not taken the Oaths that male arbitrarie executus fuit is Charge enough to warrant a Commitment that this was a Charge before a Councel of State and there need not be all the Matters precisely alledged to justifie their Acts and by the same reason Actions may lye against the Privy Counsellors here and enforce them to set forth every particular which would be of dangerous Consequence the Plea might have been much shorter as only that he was committed by a Counsel of State and the addition of the other Matters shall not hurt and that the Charge was upon Oath shall be intended no Presumption shall be that the Supream Magistracy there did irregularly 't is a power incident to every Council of State to be able to commit This action cannot lye because the Fact is not triable here the Laws there may be different from ours Besides no Action lies unlefs 't were a malicious Commitment as well as causeless and that no Man will pretend that an Action can lye against the chief Governour or Lieutenant of Ireland or Scotland and by the same reason it ought not in this Case he had a power to make Judges and therefore he was more than a Judge and they have confessed all this Matter by the Demurrer The Statute of Car. 1. which restrains the power of our Councel of State supposes that they could Commit that in case of Crimes there they are punishable in that place and in Sir Ellis Ashburnham's Case there was a Remanding to be tried there and if so it can't be examinable here and if not this Action will not lye And further that what was done here was done in a Court for so is a Councel of State to receive Complaints against State Delinquents and to direct their Trials in proper Courts afterwards that there was never such an Action as this maintain'd and if it should it would be impossible for a Governour to defend himself First For that all the Records and Evidences are there 2. The Laws there differ from what they are here and Governments would be very weak and the Persons intrusted with them very uneasie if they are subject to be charged with Actions here for what they do in those Countries and therefore 't was prayed that the Judgment should be reversed On the other side 't was argued for the Plaintiff in the Original Action That this Action did lye and the Judgment on 't was legal That supposing the Fact done in England the Plea of such Authority so executed at Plymouth or Portsmouth or the like had been ill for that Liberty of Person by our Law is so sacred that every Restraint of it must be justified by some lawful Authority and that Authority must be expresly pursued That here was no Authority to commit for that must be either as a Court of Record or as Justices of Peace Constable or other Officer constituted for that purpose that the Letters Patents are the only Justification insisted on and that gives none 't is true the power of Committing is incident to the Office of a Court here 's only the Government of the Place committed to Sir Richard Dutton with a power to erect Courts and appoint Officers but none to himself He in Person is only authorized to manage and order the Affairs and the Law of England takes no notice of such an Officer or his Authority and therefore a Court of Law can take notice of it no further or otherwise then as it doth appear in pleading The Councel is not constituted a Court they are by the Letters Patents only to advise and assist the Governour and the Governour hath no power to commit or punish but to form and establish Courts to do so which imports the direct contrary that he had no such power The Ends of appointing the Councel as mentioned in the Letters Patents are quite different viz. to aid the Regent by their Advice not to act as of themselves and if neither the Governour of himself nor the Councel of it self had such a power neither can both together have it A Court of Justice is not to be intended unless the same be specially shewn Excepting the Case of the common known general Courts of Justice in Westminster-hall which are immemorial if any thing be justified by the Authority of other Courts the same must be precisely alledged and how their Commencement was either by Custom or Letters Patents Here it appears by the Plea it self that they had Justices of Oyer and Terminer appointed It doth not appear that he or the Councel were Judges of things of this kind Besides when a Councel is constituted as here was Twelve by Name that must be the Majority as is the Dean and Chapter of Femes Case Davis's Rep. 47. and that 's Seven at least which are not in this Case There must be a Majority unless the Erection did allow of a less Number The practise of the Courts of Westminster-hall do not contradict this for there 't is a Court whether more or less and so
to be the same i.e. in general the Common Law to govern in both places from the difference assigned between Ireland and Scotland it lies not to Scotland because a distinct Kingdom and governed by distinct Laws and it lies to Ireland because ruled by the same and consequently if a Writ of Error lies on the final Judgment there it 's a good Argument that the same Law prevails there These Plantations are parcel of the Realm as Counties Palatine are Their Rights and Interests are every day determined in Chancery here only that for necessity and encouragement of Trade and Commerce they make Plantation-Lands as Assets in certain Cases to pay Debts in all other things they make Rules for them according to the common Course of English Equity The distance or the contiguity of the thing makes no alteration in the Case And then 't was said as at first That this then was the same case as if the Imprisonment had been in England or on Shipboard as to the Rules of Justification that if there were another Law which could justifie it the same ought to have been certainly pleaded As to the Instructions those do not appear and therefore are not to be considered in the Case and they should have been set forth and no extraordinary Power is to be presumed unless shewn for every Man in pleading is thought to make the best of his own Case and consequently that if 't would have made for him the same would have been shewn and because they are not shewn they must be thought directive of a Government according to the Laws of England since 't is to a Subject of this Realm to govern other Subjects of this Realm living upon a part of this Realm and from the King thereof who must be supposed to approve those Laws which make him King and by which he reigns Then 't was argued Suppose this Governour had borrowed Money of a Man in the Island and then had returned to England and an Action had been brought for it and he had pretended to ustifie the receipt of it as Governour he must have shewn his Power the Law and how he observed that Law the like for Goods the same reason for Torts and Wrongs done vi armis Now the Court below could consider no other Power or Law to justifie this act but the Common Law of England and that will not do it for the Reasons given and if it be justifiable by any other it must be pleaded and what he hath pleaded is not pursued c. As to the Commitment by a Council of State what it means is hardly known in the Law of England and that Authority which commits by our Law ought to be certain and the Cause expressed as all the Arguments upon the Writ of Habeas Corpus in old time do shew but here 's no Councel and 't is not said so much as that he was debito modo onerat ' And as to the Demurr ' that confesses no more then what is well pleaded And as to Consequences there 's more danger to the Liberty of the Subject by allowing such a Behaviour then can be to the Government by allowing the Action to lye And therefore 't was prayed that the Judgment might be affirmed It was replyed on behalf of the Plaintiff in the Writ of Error That notwithstanding all that had been said the Laws there were different tho' the Foundation of them was the Common Law that they would not enter into that Question What sort of Title at first gave Right to these Lands but that this was a Commitment by a Councel of State And as to the Objection of too general Pleadings in male arbitrarie exercendo c. tho' the inducement of the Plea was so There were other Matters more particularly pleaded the altering the Decrees in his Chamber which was sufficient And as to the Objection That 't is not alledged in the Pleadings that the Charge in Councel against Wytham was upon Oath they answered That 't is not effential tho' prudent to have the Charge upon Oath before Commitment Matters may be otherwise apparent And as to the Objection That the Warrant of the Councel for the Commitment was not shewn they said that it lay not in their power because 't was delivered to the Provost Marshal as his Authority for the Capture and Detention of him and therefore did belong to him to keep And that the Councel tho' they were not a Court yet they had Jurisdiction to hear the Complaint and send him to another Court that could try the Crime and tho' it did not appear that the King gave any Authority to the Governour and Councel to commit yet 't is incident to their Authority as being a Councel of State the Councel here in England commit no otherwise and where the Commitment is not authorized by Law the King's Patent gives no power for it But the Government must be very weak where the Councel of State cannot commit a Delinquent so as to be forth-coming to another Court that can punish his Delinquency And therefore prayed that the Judgment should be reversed and the same was accordingly reversed Philips versus Bury WRit of Error to reverse a Judgment given for the Defendant in the Court of King's Bench where the Case upon the Record was thus Ejectione firme on the Demise of Painter as Rector and the Scholars of Exeter Colledge in Oxon for the Rector's House The Defendant pleads specially That the House in question is the Freehold of the Rector and Scholars of the Colledge but he says That he the said Dr. Bury was then Rector of that Colledge and that in right of the Rector and Scholars he did enter into the Messuage in question and did Eject the Plaintiff and so holds him out absque hoc That Painter the Lessor of the Plaintiff was at the time of making the Lease in the Declaration Rector of that Colledge hoc paratus est verificare c. The Plaintiff replys That the Messuage belongs to the Rector an Scholars but that Painter the Lessor was Rector at the time of the Lease hoc petit quod inquiratur per Patriam c. and thereon Issue is joyned and a Special Verdict The Jury find that Exeter Colledge is and was one Body Politick and Corporate by the Name of Rector and Scholars Collegij Exon ' infra Vniversitat ' Oxon ' that by the Foundation of the Colledge there were Laws and Statutes by which they were to be governed and that the Bishop of Exeter for the time being and no other at the time of founding the Colledge was constituted by virtue of the Statute concerning that Matter hereafter mentioned ordinary Visitor of the same Colledge secundum tenorem effectum statut ' eam rem concernent ' That the Bishop of Exeter who now is is Visitor according to that Statute Then they find the Statute for the Election of a Rector prout c. Then they find
Suspended were Seniors to the Consenting Scholars Then they find that after this Sentence Painter was elected into the Rectorship Concurrentibus omnibus requisitis si praedict ' Officium Rectoris eo tempore fuit vacans and that Dr. Bury 1 June Anno Jac. 2. semper postea usque sententiam praedict ' si sententia in contrar ' non valeat semper postea fuit adhuc est verus legitimus Rector Collegij praedict ' That William Painter as Rector and the Scholars of the said Colledge did make the Demise in the Declaration and thereon the Plaintiff entred and Dr. Bury enters on him and holds and yet doth hold him out modo forma prout in nar ' c. sed utrum super totam materiam praedict ' locus Rectoris per privation ' praedictam praed ' Arthuri legitime vacavit nec ne the Jury are ignorant si per inde locus praedict ' legitime vacavit tunc pro quaerent ' si non tunc pro Defendent ' It was argued on the behalf of the Plaintiff in the Writ of Error That this Judgment was illegal and the general Question was Whether this Sentence of Deprivation thus given by the Visitor against Dr. Bury did make the Rectorship void as to him and so consequently gave a Title to the Lessor of the Plaintiff But upon this Record the Questions were two 1. Whether or no by the Constitution of this Colledge the Bishop had a Power in this Case to give a Sentence 2. Supposing that he had such a Power Whether the Justice of that Sentence were examinable in Westminster-hall upon that Action And 1. 't was argued That the Bishop had such a Power to give a Sentence and it was agreed that he could make his Visitation but once in five Years unless he be called by the Request of the Colledge and if he comes uncalled within the five Years his Visitation would be void But yet the Visitation of the 24th of July was a good Visitation and consequently the Sentence upon it is good that there was no colour to make Dr. Masters's coming in March to examine Colmer's Appeal upon the Visitor's Commission to be a Visitation and that because it was a Commission upon a particular Complaint made by a single expelled Fellow for a particular Wrong and Injury supposed to be done to him and not a general Authority to exercise the Visitatorial Power which is to inquire into all Abuses c. Colmer complains that he was expelled without just Cause and seeks to the Visitor for redress they having expelled him for an Offence of which he thought himself innocent and the Visitor sends his Commissary to examine this particular matter Then 't was urged That tho' a Visitor be restrained by the Constitutions of the Colledge from visiting ex officio but once in five Years yet as a Visitor he had a constant standing Authority at all times to hear the Complaints and redress the Grievances of the particular Members and that is part of the proper Office of a Visitor to determine particular Differences between the Members and thus is Littleton's Text sect 136. that complaint may be made to the Ordinary or Visitor praying him that he will lay some Correction and Punishment for the same and that such Default be no more made c. And the Ordinary or Visitor of right ought to do this c. and so was it held in Appleford's Case in the Court of King's Bench who was expelled upon a like occasion as Colmer was he appealed to the Bishop of Winton who was Visitor and he confirmed the Expulsion and held to be good upon the Appeal for the hearing of Appeals is a standing fixed constant Jurisdiction Visiting is one Act or Exercise of his Power in which he is limited as to time but redressing of Grievances is another and his proper Office and Business at all times 'T is the Case of all the Bishops of England they can visit by Law but once in three years but their Courts are always open to hear Complaints and Determine Appeals so that here tho' but one Visitation can be in five years without request yet the Power and Authority to hear and examine any difference between the Members and to relieve against any particular Injury that 's continual and not limited Then 't was argued That tho' what was done upon the 16th of June was with an Intention to Visit yet being denied to enter the Chappel where the Visitation was appointed to be held it was none and his Calling over the Names was only to know who hindred the Visiting and his making an Act of it afterwards or administring an Oath at the time can never be called one tho' it hath been below said to be a tacking that of June to that of July but that cannot be for then it continued much longer than was intended nay much longer then it can by the Statutes of the Colledge for that is to cease in three days It turns rather the other way having been hindred in June he makes an Act of it in July in order to call them to an account for it as for a Conturnacy and to bring them to Judgment at his Visitation 'T was no more then taking an Affidavit of the Service of a Citation The appointment of a Visitation in the Hall was occasioned by the Obstruction met with at the Chappel and 't would be a very strange Construction that when he designed a Visitation and was hindred that the Hinderance and his Inquiry about it should be called a Visitation and a former Contumacy in opposing an intended Visitation should prevent their being subject to an actual true one Then 't was argued That there was no necessity that there should be the Consent of the four Senior Fellows to the Deprivation of the Rector and by one of the Counsel 't was owned that if such Consent had been necessary the Sentence had been a Nullity But as this Statute is framed 't was argued that the Bishop might deprive tho' they did not concur for these Reasons 1. By the Statutes the Bishop for the time being is made the ordinary Visitor of Exeter Colledge and that where any one is Visitor of a Colledge he hath full and ample Authority to Deprive or Amove any Member of the Colledge quatenus Visitor 2. There is an express Power given to the Bishop to proceed to the Deprivation of the Rector or the Expulsion of a Scholar and this in his Visitation And 3. The qualifying words do not restrain it to be with the Consent of the four Fellows the word is Deprivatio as to the Rector and Expulsio as to the Scholar tho' they are synonymous as to real Sense yet by this Statute they are differently applied Then it says If the Bishop do proceed c. that only relates to the Case of a Scholar because the word there used is Expulsio which is never applied but to the amotion
and he may Expel and as it is 8 Assis ' 29 30. he may deprive the only Query is if he were Visitor at this time for it hath been and must be agreed on all hands that Quatenus Visitor he might deprive if he be a Visitor as Ordinary there lieth an Appeal from his deprivation but if as Patron there 's none and then that deprivation whether right or not must stand As to the Objection that 't is not the Sentence of a Court and therefore not Conclusive 't is not material whether it be a Court or not but the Query is if he had jurisdiction and conusance of the Person and thing and if he had then his sentence holds and where the Founder hath not thought fit to direct an Appeal no appeal lies nay not to the Common-Law Courts the Founder having put all under the Judgment of the Visitor it must continue so He might have ordered it that the Rector should continue only during the pleasure of the Visitor but now he hath left it to his wisdom according to the Statutes He is a Judge not only in particular by appointment but as he is Constituted a Visitor in general then in pleading of a Sentence of deprivation there is no necessity of shewing the cause the cause is not traversable even in a Visitation so is Rastal 1.11 Hen. 7.27 7 Rep. Kenne's Case 9 Edw. 4.24 Suppose this Rectory had been a sole Corporation and not part of a Corporation aggregate as it is Consisting of Rector and Scholars and Dr. Bury had brought an assize and this deprivation had been pleaded it had been good to have said that the Visitor certis de Causis ipsum adinde moventibus had deprived him every thing that is traversable must be expressed with certainty but the cause need not be so in this Case Now 't is strange that pleading a Sentence without a Cause should be good and the finding of a Sentence in like manner in a special verdict should not be good If in Pleading it be not traversable 't is the strongest Argument that the Cause is not to be inquired into the having no Appeal doth not lessen the validity of the Sentence it doth only shew the Rector's place not to be so certain and durable as in other cases they are where Appeals are allowed The Case of Caudrys in the High Commission Court is as strong a Sentence of deprivation no Appeals and the Sentence found and no cause shewn yet held good 't is no Answer to say that that was by the Ecclesiastical Law how is it the Ecclesiastical Law that a Man shall be concluded by one Sentence without Appeal no it was because 't was by a Court that had Jur ' and the Sentence was not the weaker or the cause of it more inquirable because there 's no Appeal 'T was by the Ecclesiastical Constitution that the Commissioners had that Power but that was established by the Law of the Land and so is the Visitatorial Power the one Authority is as much derived from the Law as the other Bird and Smith's Case in Moore 's Rep. deprivation for not conforming to the Canons held good in like manner As to the Case of Coueney in Dyer 209. and that in Bagges's Case 11 Rep. 99. they are the same as to this matter though in Two Books an assize because no Appeal he quotes Books for it but upon a perusal they will not warrant the distinction for the party is as much concluded in the one Case as in the other 't is reasonable to suspect that Case not to be Law because that is impracticable which it is brought to prove The Head of a College cannot maintain an Assize for his Office of Headship He hath not such an Estate as will maintain that writ therefore to give that instance against us is hard the Rector hath no such sole Sezin the whole body of the College have an interest therein He hath no Title to the Money in his own Right till by consent they are distributed and after such distribution 't is not the Rector's Money but Dr. Bury's He is the only visible head of the Body in deed but has no single right In Appleford's Case the like Argument was drawn from this Case for a Mandamus and insisted that he might have an assize but said by the Lord Hales that that was impossible and in truth there 's no difference between this Case and that of a Mandamus there was a return that he was removed pro crimine enormi and Appealed to the Bishop of Winton who confirmed the amotion and the particular cause was not at all returned and held good because there was a local Visitor who had given a Sentence and all parties were concluded by it the same being done by the Power of that Government which the Founder had thought sit to put them under Now 't was argued from hence That this was an express Case If the Cause of the Deprivation be examinable in the Courts of Common Law why not upon a Mandamus as well as in an Ejectment The Lord Hales in that Case of Appleford took it for clear Law That the Sentence was as binding as a Judgment in an Assize He is made a Judge and his Person particularly designed by the Founder but he hath his Authority from the Law and since the Founder hath trusted the Matter to his Discretion 't is not to be suspected that he hath done or will do otherwise than right Then in the next place 't was argued That there doth not appear any Injustice in the Sentence and consequently it ought to be presumed Just Credence is to be given to a Person that exerciseth Judicial Power if he keep within his Jurisdiction The Law hath respect not only to Courts of Record and Judicial Proceedings in them but even to all other Proceedings where the Person that gives his Judgment or Sentence hath a Judicial Authority and here 's no Fault found in the Sentence the Jury have not so much as found the Matter and Ground of it to be untrue in Fact or insufficient in Law Then 't was urg'd That the Cause of Deprivation here was just it being for Contumacy If the Bishop had power to visit in June as he had and was hindred by their shutting the Doors whereupon he went away without doing any thing and came again in July when he held his Visitation and they behaved themselves Contumaciously and refused to submit to his Authority this was contra officii sui debitum 't is reasonable that both Head and Members should submit to the Visitor Contumacy is a good Cause of Deprivation and upon good reason because it hinders an Inquiry into all other Causes 'T was held so in Bird and Smith's Case and in Allen and Nash's Case quia fuit refractarius Now tho' Contumacy be not one of the Causes mentioned in the Statutes yet 't was certainly contrary to their Duty turning their Backs upon the
Visitor not appearing upon Summons refusing to be examined was an Offence and contrary to what the Statutes require He is to inspect the state of the Colledge and each Member's particular behaviour and now when the Visitor comes to make such an Inquisition and the Head or the Members withdraw themselves and will not appear to be examined if this be not a good Cause of Deprivation nothing can be for that nothing else can ever be inquired into As for that Statute which refers to the Causes for which a Rector may be deprived it doth not relate to a Deprivation in a Visitation but shews the manner how the Colledge is to proceed if he be guilty of such Offences they may complain at any time to the Visitor if he wasts the Revenues or behave himself scandalously and upon request will not resign and they may Article against him out of a Visitation but when he comes to execute his Power in his quinquennial Visitation he is not confined to proceed only upon the Information of the Fellows but is to inquire into all the Affairs of the Colledge and may proceed to deprivation as he sees Cause Now Contumacy is a causa of a Forfeiture of his Office which is subject to the power of the Visitor by the original Rules of the Foundation and to evade or contumaciously to refuse or deny a Submission to that Power is an Offence against the Duty of his Place and consequently a just Cause of Deprivation so that upon the whole Matter 't was inferred and urged that the Bishop hath a Visitatorial Power vested in him to deprive the Rector without consent of the four Senior Fellows And 2. that the Justice of the Sentence is not examinable in Westminster-hall And 3. that if it were and the Cause necessary to be shewn here was a good one an affronting the very Power of Visiting and fetting up for Independency contrary to the Will of the Founder and therefore it was prayed that the Judgment should be reversed On the other side 't was argued by the Counsel with the Judgment That this Sentence was void that 't was a meer Nullity that this proceeding had no Authority to warrant it and that it being done without Authority 't is as if done by a meer Stranger and whether it be such an Act or not is examinable at Law for that the Power of a Visitor must be considered as a meer Authority or a Trust and it is one or rather both and then either way 't is examinable for every Authority or Trust hath or ought to have some Foundation to warrant it and if that Foundation which warrants it hath limited any Rules or Directions by which it is to be executed then those Directions ought to be pursued and if they are not 't is no Execution of the Authority given or Trust reposed and if not 't is a void Act a meer Nullity and consequently 't is that of which every Man may take notice and advantage Then 't was said That it must be agreed that of a void thing all Persons may take advantage and contest it in a Collateral Action and that altho' it have the form and semblance of a Judicial Proceeding and for this was cited the Case of the Marshalsea's 10 Rep. 76. as a full Authority the Resolution was That when a Court hath no Jurisdiction of a Cause there all the proceeding is coram non judice and Actions lye against any Person pretending to do an Act by colour of such Precept or Process without any regard to its being a Precept or Process and therefore the Rule qui jussu judicis aliquid fecerit non videtur dolo malo fecisse quia parere necesse est will not hold where there is no judex for 't is not of necessity to obey him who is not Judge of the Cause and therefore the Rule on the other side is true judicium a non suo judice datum nullius est momenti and so was it held in the Case of Bowser and Collins 22 Edw. 4.33 per Pigot and 19 Edw. 4.8 And therefore if the Court of Common Bench held Plea of an Appeal of Felony 't is all void but it must be owned that the meer erroneous procedure of a Court which hath a General Jurisdiction of the Subject Matter is not examinable in a Collateral Action whether upon true Grounds or not and yet if it be a limited Jurisdiction and those limits are not observed even that is coram non judice and holds with respect to Courts held by Authority of Law which are much stronger then the Cases of Power created or given by a private Person A Sheriff is bound by Law to hold his turn within a Month after Michaelmas and he holds it after the Month and takes a Presentment at that time if that be removed into the King's Bench the Party shall not answer it but be discharged because the Presentment was void coram non judice for that the Sheriff at that time had no Authority and yet in that Case his Authority and Jurisdiction extended to the Person and Thing The same Law for a Leet unless Custom warrants the contrary and then that Custom must be pursued The Commissioners of Sewers have a limited Authority and if the number of Persons or other Requisites mentioned in their Commission be not pursued what they do which exceeds it is void and yet they have a kind of Legislative Authority so is it in Sir Henry Mildmay's Case 2 Cro. 336. and there they had an Authority both of Thing and Person but did not observe the Rules prescribed in the Gift of that Authority according to the 23 Hen. 8. cap. 5. and no reason could or can be given for that Resolution but that it was a particular limited Authority And then to apply this to the present Case the Sentence in question can no more aggrieve the Defendant then an Order pronounced or made by a non Judex if it be not agreeable to the Power given by the Statutes and this appears further from Davis's Rep. 46. where the same Distinction is allowed Nay in some Cases the Award of a wrong Process is void as if by a Steward of a Mannor Court that a Capias should issue where the same doth not lye but only an Attachment Turville and Tipper's Case Latch 223. A Court of Pypowders hath Jurisdiction of an Action of the Case yet if it holds Plea of Case for Slander 't is all void tho' the words were spoken within the Boundaries of the Fair because the Jurisdiction is limited so that if the Thing the Time the Person or the Process be not regarded according to the Authority given 't is all void and an Advantage may be taken of it by any Body where the Plaintiff Claims or makes his Demand by colour of such Act. 'T was further argued That the Reason given in that Case of Latch is because the Custom which gave him his Authority gave him
the Sentence given by the Constable and Marshal in the Suit before them concerning a Coat of Arms Rot. Claus 12 Rich. 2. m. 4. Appeal by Bond vers Singleton 't is in a Cause of Arms in our Court before our Constable and Marshal wherein Sentence was given by them 1 pars Pat. 17 Rich. 2. m. 12. Thus it appears by a Commission for the Execution of the Office of Constable of England Committimus vobis officium hujusmodi Constabularii ad querelam Thome Moor in hac parte una cum Edmundo de Mortimore Mareschallo Anglie audiendum secunda pars Patent ' 48 Edw. 3. m. 20. in dorso As also by a Claim at the Coronation of H. 5. before Beauchamp Earl of Warwick then Lord Steward John Mowbray Earl Marshal Son to the then Duke of Norfolk claimed under a Grant in 20th of Rich. 2. of the Office of Earl Marshal of England to hold Court with the Constable and to hold Pleas before them and Copies of these Precedents were said to have been ready in Court Further to prove the joynt Authority were cited several of our Old Books 48 Edw. 3. fol. 3. in a Case of Debt upon an Indenture by which P. was retained by the Defendant with two Squires of Arms for the War in France Belknapp said of such Matter this Court cannot have conusance but 't is triable before the Constable and Marshal In the Case of Pountney and Bourney 13 Hen. 4.4 the Court of King's Bench call it the Court of the Constable and Marshal And in 37 Hen. 6.3 upon another occasion Prisot said this Matter belongs to the Constable and Marshal And Coke 4 Inst 123. says that they are both Judges of the Court and that the Constable sometimes gave Sentence is no Argument that the Marshal was no Judge with him it only proves him the Chief who in most Courts doth usually give the Rule Nor is the Earl Marshal's receiving Writs from the Constable to execute his Commands any Argument that he sits there only as a Ministerial Officer and not as a Judge for he may be both as in many Corporations Mayors are Judges of the Court and yet have the Custody of their Goals too and so have the Sheriffs of London their Compters tho' they strictly are Judges of their several Courts 2. During the Vacancy of the Earl Marshal's Office the Constable alone had the Judicature as in 11 Hen. 7. on Holy-rood-day the Earl of Darby being then Constable of England sate and gave Judgment alone in a Cause between Sir Thomas Ashton and Sir Piers Leigh upon a Coat of Arms but this needs no Proof since 't is contended on the other side that the Court doth belong only to the Constable 3. 'T was argued that the Earl Marshal hath set alone and given Judgment and to prove that it was said this Court was held when there was no Constable before Thomas Howard Duke of Norfolk Lord High Treasurer and Earl Marshal of England who Died 16 Hen. VIII and next after him before Charles Brandon Duke of Suffolk then Earl Marshal who Died 37 Hen. VIII after him the Court was held and Sentences given by Thomas Howard Duke of Norfolk who Died in 1512. and after him in the 30 Eliz. the Earl of Essex sat as Earl Marshal and heard and determined Causes judicially and the chief Judge sat then as Assistant with him in Court and then after the Death of the Earl of Essex it was in Commission to my Lord Treasurer Burleigh and others and then the great Oase of Sir F. Mitchell was heard and determined at which several Judges assisted and the Sentence of degradation was executed upon him 26. April 1621. and then was Cited the Case of Pool and Redhead 12 Jac. 1.1 Roll's Rep. 87. where 't was held that the proper remedy for Fees of Knighthood was to sue to the Earl Marshal and Coke says in the same Case the Common-Law does not give remedy for precedency but it belongs to the Earl Marshal And since that in Parker's Case which was 20 Car. II. Syd 353. the Earl Marshal was agreed to have the absolute determination of matters of Honour in the Court of Chivalry as much as the Chancellor hath in matters of Equity And the Error on the other side was occasioned by not distinguishing between the Ancient Jurisdiction of this great Court at the Common-Law and the Jurisdiction given to the Constable and Marshal under those names by Statute for the latter cannot be executed by one alone and that distinction answers the Authority in 1 Inst 74. which grounded the mistake that there is no Court of Chivalry because there 's no Constable whereas the reason why in Sir Francis Drake's Case the not constituting of a Constable silenced the Appeal was from the 1 Hen. IV. Cap. 14. which orders all Appeals of Murder committed beyond Sea to be before the Constable and Marshal by name But the Ancient Jurisdiction of this Court by prescription wherein both the Constable and Marshal were Judges severally or together and which each of them did and could hold alone remains still as much in the Earl Marshal alone as it ever was in him and the Constable Then it was argued that no Prohibition lay to this Court because none had ever been granted and yet greater occasions then now can be pretended by reason of the large Jurisdiction which this Court did in Ancient time exercise many Petitions were frequently preferred in Parliament Complaining of the Incroachments of this Court in Edw. I. Edw. III. Rich. II. Hen. IV. and Hen. VIth's time as appears in 4 Inst. 125. 2 Hen. IV. num 79. and 99. 1 Roll's Abridg. 527. and yet no Prohibition granted or moved for which according to Littleton's Text is a very strong Argument that it doth not lie The Statute of 13 Rich. II. 2. is an Argument against it because after several Complaints of the Incroachments of this Court another remedy is given which had been needless if this had been legal nay it shews the Opinion of the Parliament that there was no other way of relief and soon after the making of this Statute in the same Reign two Privy Seals were sued upon it in the Case of Poultney and Bourney 13 Hen. IV. 4. 5. Besides this might be grounded on the Antiquity and greatness of this Court for as to the subject matter of it 't is by Prescription a Court for determining matters of Honour to preserve the distinction of degrees and quality of which no other Courts have Jurisdiction and the right and property in Honours and Arms is as necessary to be preserved in a Civil Government as that in Lands or Goods Then 't was urged that this Court hath Jurisdiction even of Capital Offences its extent is large 't is throughout the Realm even in Counties Palatine even beyond the Seas its manner of proceeding is different in a Summary way by Petition its trial of Fact may be by Duel as is 4
not against him here 's no Fraud or ill Practise c. Then if the nature of the thing be considered the Demand is of a Right not arising by Agreement of Parties but by Operation of Law if the former Chancery might perhaps construe and enlarge it so as to fulfil the utmost Intention but here her title is the Marriage the Seisin and Death of the Husband And there never was a time when if her Lord had died she could have had immediate Dower for even the Term had been pleadable by an Heir of Law to a Writ of Dower Now what doth give her an Equity against the Respondent Her Claim is by from and under her Husband as having a Right to a Proportion of what he had that is a Right by the Law where is the Equity that should improve or mend this Right Perhaps it must be agreed That if the Husband had just before Marriage made a long Lease on purpose to prevent Dower and the Woman expecting the Priviledges which the Common Law gives to Women married had surviv'd him Equity might have interposed and yet even this was practised by a Reverend Judge of Equity Mr. Serjeant Maynard who made such Lease to his Man Bradford the day before his last Marriage but here is no such Action 't was an old Term created by the old Earl of Warwick As to the Case of the Mortgages The Feme intituled to Dower is let in because the Person who is the Mortgagee hath no Interest but to have his Money and Equity is to execute all these Agreements but never where there is a Purchaser or where the Interest of the Mortgage is assigned to the Heire Between her self and the Mortgagee she comes in place of her Husband and the Husband could redeem and so may the Wife but against a Purchaser she has no more Equity then her Husband had and that is none at all If she hath a Legal Title antecedent to the Purchasers as Marriage and Seisin where there 's no Term standing out that shall prevail and Equity shall not help the Purchaser against her so where the Purchaser hath a Legal Title as by a Term precedent Equity cannot relieve her And whereas it was objected That there was no Case adjudged in Chancery against the Appellants pretence the Answer is plain The Common Law is against it and if no Precedent in Equity the Common Law ought to stand 'T is nothing but Precedent that Consecrates half the Decrees in Equity And no Man will say that ever any Woman was endowed in Equity of a Trust Estate If a Man hath a Term for Ten thousand years and be entirely and properly owner of it tho' the same be equal in value to a Feesimple for the Reversion after it is worth little or nothing yet no Dower can be claimed in Equity nay If the Husband be seized together with another Person and not sole seized yet no Dower even in Chancery can be claimed against the Survivor So that Equity doth not exceed the Rules of Law in advancing the Right of Dower 'T is true unless Fraud be in the Case according to the Case of Nash and Preston in Cro. Car. 190 191. Relief in Equity shall not be given against a Legal Title to Dower yet 't is as true that where the Law doth not give Dower Equity will not unless there be Fraud and Covin used to prevent it and then common Reason enjoyns a Court of Conscience to Relieve If any Allowance had been in the Purchase upon Consideration of the Title to Dower the same would have been a very material Argument but in this Case there was none And therefore 't was prayed that the Dismission might be affirmed and it was so Dominus Rex versus Baden WRit of Error to Reverse a Judgment given in the Court of Exchequer and affirmed upon a Writ of Error in the Councel Chamber before the Chancellor with the Assistance of the two Chief Justices The Case upon the Record was only this One Allen outlaws one Clerk in Debt on a Bond in Mich. 1690. on the Seventh of Jan. 1690. by virtue of a Special Capias utlagatum and inquisition thereupon seizes Clerk's Lands into their Majesties hand In Hillary Term following the Outlawry and Inquisition are certified into the Exchequer and Allen obtains a Lease under a Rent In Mich. 1692. Baden comes and pleads that in Mich. 4 Jac. 2. he recovered a Judgment against Clerk for 1080 l. that in Trinity Term 1691. he took out an Elegit and had a Moiety of the Lands extended and therefore prays that an amoveas manus may be awarded Mr. Attorney replies That the Lands were seized by virtue of the Outlawry and Inquisition long before the Elegit was sued and therefore c. Baden demurs and Judgment for the King It was argued on behalf of the Plaintiff in the Writ of Error that this Judgment was Erroneous for that there 's a vast difference between an Outlawry in a Civil and one in a Criminal Process That in a Civil Action 't is only a Civil Process for the benefit of the Party and 5 Edw. 3. cap. 12. the King cannot pardon an Outlawry at the Suit of a private Person that 't is only to help one Subject to his Debt from another that the King hath no Advantage by it and so no need of a Preference by reason of the Prerogative that at Common Law no Man could be outlawed that now it is purely given for the sake of the Plaintiff that the common Practise is to make a Lease or grant a privy Seal to the Party That by this Outlawry the King hath no Interest in the Land he cannot cut down the Trees 9 H. 6.20 that he cannot Plow or Sow but only collect and receive the Profits which arise out of the Land Bro. tit Outlawry 36. tit Patents 3. that the King hath not the possession of the Land which shews it not to be a Forfeiture to the King but it remains the Parties still in respect of Ownership he may make a Feoffment 21 Hen. 7.7 2 Inst 675. Hob. 122. by the Judgment the Lands were bound tho' the Title was not compleat till the Elegit was sued out a monstrans de droit or Petition did lye and now the same Matter may be pleaded 'T was further argued That great Mischief must follow if an Outlawry upon Civil Process may defeat a Judgment that Judgments with release of Errors are taken and used as common Securities that this is most plainly a device to avoid them that this can be no Security if an Elegit may not be sued but prevented by the Party himself for here it is his own default not to avoid this Outlawry by Appearance that no act of the Debtor could alter the Security and there 's no reason why his neglect should that this Contest is between Baden and Allen and not between Baden and the King Allen's Suit was but just begun and this is
meerly upon his Suit If the Person had been taken upon this Capias he had been the Plaintiff's prisoner and if he Escapes the Plaintiff had an Action for it Yelv. 19. and the supposed Forfeiture is only for his Interest 3 Cro. 909. And by this practise the King's Prerogative is to assist one Subject to deceive another By the Law a Judgment is preferrable to a Bond and binds the Land which a Bond doth not till Judgment upon it now here the first is to be postponed by reason of the King 's supposed Prerogative which is only a Right in the King for the use of the Party to have the Profits 2 Rolls Abridg. 808. vide Stamford 57. 1 Inst 30. Hardres 101 176. 1 Inst 202. Latch 43. That the Elegit hath Relation to the Judgment and so becomes Prior to the King's Title like the Relation of a Bargain and Sale to an Inrolment and as a strong Argument for it the words in the Writ of Elegit were repeated and enforced quo die Jud ' reddit ' fuit which shewed a relation to that day and consequently did affect the Lands at a time when the King had no Interest in it On the other side it was argued with the Judgment That this was the common Practise of the Court of Exchequer in this Case that the Course of a Court is the Law of that Court and to be taken notice of by all other Courts that 't is time out of mind and consequently of equal duration with the Common Law and always deemed to be parcel thereof that the Records and Experience of the ancient Clerks were both concurring to prove it the common Usage in the Exchequer that when Lands are seized into the K's hands by virtue of an Outlawry and Inquisition it was never known that the King's hands were removed by force of an Elegit sued afterwards tho' upon a Judgment precedent that it hath been their constant practise to continue the pernancy of the Profits in the King notwithstanding such Elegit that 't would be of dangerous Consequence to alter the same by a new Opinion that 't is not so very material whether this practise be more reasonable then another but whether it be certain and known for if it be so 't is much better to have it continued then changed because of the Confusion which must follow by shaking the Rights and Possessions enjoyed under the former Practise That 't is not in many Cases so considerable what the Rule is as that it be fixed and understood and therefore no reason to alter it or at least not without the use of the Legislature for by the same colour that some Judges of Parts and Segacity shall think fit to swerve from their Predecessors others of less capacity may pretend to do the same and so nothing but uncertainty would ensue But besides this is not meerly a Course of the Court 't is also agreeable to the Rule and Reason of the Laws Baden hath no interest in the Land 'till he sues his Elegit whereas the King's Title to the Land was compleat by the Outlawry and Inquisition which was prior to the Elegit and a Judgment of it self doth not affect the Land till Election made a Judgment at Law is only an Award of the Court ascertaining of the Debt and declaring that the Plaintiff shall recover In it self it doth no more assect the Land then a Bond 't is true when the Suit is ended by a Judgment the Party may resort to an Elegit for his Execution if he thinks fit and can find any thing subject thereto At the Common Law before the Statute of Westminst 2. cap. 18. a Subject upon his Judgment for Debt or Damages could not have Execution by taking away the Possession of his Adversary's Land because that would hinder the Man's following of Husbandry and Tillage which then was reckoned beneficial to the Publick So is 2 Inst 394. and Sir William Herbert's Case 3 Rep. 11 12. nothing but a Levari or Fieri facias then by the Statute sit in Electione illius and Coke in his Comment on those words saith After the suing of an Elegit he can't have a Capias So that by him the suing out of the Writ is the determining of his Election 2 Inst. 395. Foster and Jackson's Case Hob. 57. Even the Elegit it self doth not when sued out immediately touch the Lands for if that the Chattels be sufficient to pay the Debt and it so appears to the Sheriff that thereby he may satisfie the Plaintiffs Demand then he ought not to extend the Land and this appears by the frame of the Writ as 't is in the Register 299. 2 Inst 395. which shews that no Title can be acquired to the Land till the same be Extended The Elegit cannot by Law have relation to the Time of the Judgment so as to avoid the King's Title for relation is only a Fiction and Fiction shall never bind or prejudice the King in his Right much less in his Prerogative and no Case can be shewn where a Relation shall conclude the King nor is it any Objection That this is a Prerogative for the Benefit of a Subject for in truth all the Prerogatives are for the Advantage and Good of the People or else they ought not to be allowed by the Law Besides Practise and Reason there 's express Authority in our Books for it as the Case of Masters versus Sir Herbert Whitfield 1657. Hardres 106. And if there were no Book for it the Practise is enough for the printing of a Case doth not alter or change the nature of it 't is as much Authority if it be not published as when it is so Masters recovered a Judgment against Sir Herbert Whitfield and after the Judgment Sir Herbert was outlawed at another Man's Suit and his Lands seized into the Protector 's hands and afterwards Masters took out an Elegit and the whole Court was of Opinion that the Lands being seized into the Protector 's hands before the Elegit was sued out there could not be an amoveas manus awarded altho' the Judgment was prior to the Outlawry this is the same with the Case at Bar and tho' it may be surmised That this was an Opinion vented in Evil Times yet 't is well known that excepting their Criminal Proceedings in those Times the Law flourished and the Judges were Men of Learning as Mr. Justice Twisden hath often affirmed upon the Bench. 'T was further urged That Prerogative was to be favoured that 't was a part of the Law 2 Inst 296. especially when 't was used as in this Case to help an honest Man to his Debt that confessing of Judgments was oftner practised by Fraud to cover Mens Estates then Outlawries were to defeat just Judgments That if this Judgment was just and honest 't was his own default not to sue an Elegit immediately Then were cited many Cases to prove the King's Prerogative as Fleetwood's Case
Deposition Literature Profession and the like It 's enough if so much be alledged that they may write to know whether the Fact be so or no and upon a Return thereof that 't is so they can give Judgment Now if his Grace my Lord Archbishop in this Case upon Examination had returned that this Presentee was in Literatura minus sufficiens as undoubtedly he would and so the Plaintiff thought otherwise he would have joyned Issue and so ea occasione inhabilis then unquestionably Judgment must have been for the Plaintiff in Error for default of Learning is a good cause of Refusal and must be agreed to be so The Rule laid down by my Lord Anderson 3 Leon. 200. is That in Matters triable by our Law all things issuable ought to be specially alledged in order to have a convenient Trial but in Matters Spiritual the Law is otherwise because there 's no peril in the Trial and therefore if certain enough to ground a Certificate it 's sufficient My Lord Hob. 296. in Slade and Drake's Case saith That in pleading a Divorce you must shew before whom it was 11 Hen. 7.27 but you need not shew all the Proceedings as you should of a Recovery at Common Law and the Reason why you must shew before whom is only that it may be known who is to try and certifie it In Burdell's Case 18 Edw. 4.29 30. 't is clear that in all Spiritual Acts triable by the Spiritual Law it is necessary to plead no more than what may give the Court ground to write to the proper Ecclesiastical Officer and to judge by his Certificate Now here is ground enough in this Case for the Archbishop to examine this ignorant Person for so he must be taken to be for so he is found by one Ordinary and he refuses to be examined by the Archbishop he is pleaded not to have Learning enough to capacitate him for a Cure of Souls and that by one whom the Law hath constituted his Judge 'T is true this is traversable and triable by the Archbishop but all those Instances of his Insufficiency that were taken in the Bishops Court would be Evidences of the same before the Archbishop proceeding in an Ecclesiastical manner tho' not so proper tho' not possible to be set forth in the Temporal Court this is not a General Return of a Person inhabilis which might occasion an Enquiry into all sort of Disabilities but a Special Plea of inhabilis quia insufficienter Literatus and therefore no further Enquiry is necessary then into the Learning of the Party as Capacitates him for a Rector It was in the third place argued from the Presidents of Pleading in this Case and other Cases of Pleading upon like Occasions and those both Ancient and Modern 40 Edw. 3.25 In a Quare Impedit as this is the Bishop pleads as here That he Examined the Clerk presented and found upon Examination que il ne fuit sufficiens Letter'd and thereupon alledges Notice to the Patron per lapsum temporis he justifies his own Presentation Upon this there 's no dispute but that thus far it was well pleaded but the only doubt was whether the words and so disabled should be added to the Issue and they were ordered to be part of the Issue in that Case and so they ought to be in this Case and so they are ea ratione inhabilis this Case is exactly parallel to that in question and upon this Plea there was Issue joyned and the Trial was directed to be by the Guardian of the Spiritualities vacante Sede Cantuariensi nothing can be offered against this only that 't is Ancient and the Law is changed but by what Authority is hard to know there is no Act of the Legislature to alter it much hath been done to help against Niceties in Pleading nothing to require more And Bro. Quare Impedit 168. they were compelled to joyn Issue able or not able in that respect 39 Edw. 3.1 2. The Earl of Arundel versus the Bishop of Chester says the Book tho' it appears plainly to be a mis-print from the name of the Church and the Trial per pais and the Antiquity of the Bishoprick it self it must be the same that in the Abridgments is called the Earl of Arundel versus the Bishop of Exeter the Bishop pleads as here That he examined the Clerk presented and found him persona inhabilis to have a Benefice in the Church and Issue is joyned upon that which is stronger then ours and a Trial by Jury is directed out of the County of Cornwall because the Clerk was dead Here are two Cases in which all the different Trials are taken that can be had by the Guardian where the Presentee was living and by Jury when dead because he could not be examined And in both these Cases Issue is taken upon this Plea and that in great Cases and after long Debate And according to the Lord Coke in this Reign the Law was pure and uncorrupt and flourished Then were urged Modern Precedents Mich. 15 16 Eliz. Rot. 1941. Molineux versus Archiepiscopar ' Ebor ' in a Quare Impedit in which the Plea of the Archbishop is the same in totidem verbis as here Persona in Literatura minus sufficiens seu habilis ad habend ' praed ' Ecclesiam and there is no Exception taken to the Plea but only Issue joyned upon notice or no notice before the Lord Chief Justice Dyer Another Precedent there is Hill 6 Eliz. Rot. 646. Bodenham versus Episcopor ' Hereford ' there is the same Plea in Bar as here That the Person presented was Persona in Literatura minus sufficiens seu habilis ad habend ' aliquod Beneficium Sanctae Ecclesiae and then avers notice to the Patron and no Exception taken to the Plea but Issue upon notice Pasch 6 Eliz. Rot. 714. Paschall versus Episcop ' Lond ' Quare Impedit the Ordinary pleads an Examination de habilitate honestate doctrina ejus pro eo quod idem Episcopus invenit praed ' Christopherum fore criminosum de non sana Doctrina ideo recusavit and notice and even to that general Plea there 's no Demurrer but Issue upon notice 'T is no Answer that here was no Solemn Judgment upon this very Point for it doth rather inforce the Authority of the Precedents it argues that the Law was taken to be so clear for the validity of this Plea that no Lawyer would venture upon a Demurrer but rather would trust to a Jury upon the Evidence of notice it argues it so constant a Course and Method of Pleading in these Cases that none was so hardy as to dispute it 38 Edw. 3.2 Perjurius was alledged by the Bishop in the Presentee and held to be well enough but nothing of manner time and place nor any Conviction of it mentioned and yet this was admitted a good Plea 2 Rolls Abridg. Presentment 356. and so says Rolls it
behalf of the Appellants That the half Blood ought to have but a half share That in the Case of Inheritances the whole Blood was preferred and that tho' such Rule could not govern intirely in this Case yet it shewed which ought to have the preference that the true Reason of Distribution was this The Law was to give in like manner as he might reasonably be supposed willing to have given his Estate in case he had made a Will and had not been surprised by a sudden Death that every Man was supposed to favour his next of Kin that the Statute of Distributions did the same thing and then that the whole Blood was nearer of Kin because did partake of both the Stocks from whence he came that the Relation or Kindred in this Case intirely came from the Parents that this was not an Alliance by his own Contract as Marriage or the like that the Inclination was supposed to arise to them from the Natural Love he bore to the Common Ancestors that such Inclination could never be supposed equal where the Party was only of the half Blood And much to this effect and many Arguments drawn from the Civil Law were urged in favour of the Appellant and several Presidents cited where it had been judged since the Statute for the half Blood to have but a half share by Sir Richard Lloyd On the other side it was argued That the half Blood is as near a Kin to the Intestate as the whole Blood and ought to have an equal Share of the Personal Estate with the whole Blood that the Party must be presumed equally inclined to each Parent that the Brother of the half Blood was as much a Brother as one of the whole that the whole Blood was preferrable in Descents but that was only upon account of a Maxim in the Law whereas here they are equally of Kin the whole Blood is no more a Brother than the half in the same Relation there can be no difference or degree it might as well be pretended to have a difference allowed upon the account of Seniority that Opinions and Practise had been with the Decrees that this hath been taken to be the Law in Westminster-hall Before the Statute 't was held that a Sister of the half Blood is in equal degree with the whole Brown versus Wood Allen's Rep. 36. and so cited in Smith's Case Mod. Rep. 209. So in the Case of Milborne and Milborne 30 March 1671. before the Lord Keeper Bridgman W. M. had by Will devised all his Lands in Trust to pay every Brother and Sister he had living 40 l. per Annum each and he had several Brothers and Sisters both of the half and whole Blood the Brothers of the whole Blood did oppose the payment of the 40 l. per Annum to those of the half Blood but 't was adjudged and decreed that they are equally entituled to the 40 l. per Annum a piece and enjoyed accordingly Farmer versus Lane and Nash in Chancery 26 Octob. 1677. declared and adjudged by the Lord Chancellor Nottingham That the half Blood are in equal degree of Kindred with the whole Blood and ought to have an equal Share of the Personal Estate The like was in the Case of Stapleton and the Lord Merion against the Lord Sherrard and his Lady in Chancery by Judge Windham 13 June 1683. the Case was thus Robert Stapleton had a Sister of the whole Blood and a Brother and Sister of the half Blood and died Intestate Administration was granted to his Wife the Lady Sherrard who claimed a Moiety of the Personal Estate by the Custom of the Province of York and a quarter of the other Moiety by force of the Act for Distribution of Intestates Estates and adjudged that the Wife should have only one Moiety and the other Moiety to be divided equally between the Brothers and Sisters both of the whole and half Blood This Cause was Reheard the Seventh of May 1685. by the Lord Guilford upon the Certificate of his Grace the Lord Archbishop to whom it was referred to certifie the Custom of the Province of York who certified that the Wife shall have only a Moiety and the other Moiety shall be divided amongst the next of Kindred and adjudged that the half Blood shall have an equal Share with the whole and so the former Decree was confirmed The same was adjudged by Mr. Justice Charlton June 30. 1685. in the Case of Pullen and his Wife against Serjeant in the Court of Chancery The like was amongst other things declar'd and decreed by the Lord Jessryes Febr. 19. 1686. in the Case of the late Lord Winchelsea against Noraliff and Wentworth upon which Hearing were present and assisting the then Lord Chief Baron Atkyns and Mr. Justice Lutwich and so was it Nov. 20. 1689. between Stephens and Throgmorton in Chancery It hath likewise been held so in the Ecclesiastical Court and accordingly adjudged by Sir Richard Raynes upon Solemn Argument by the most eminent Counsel both of the Civil and Common Law in the Case of James Storey Febr. 26. 1685. and in the Case of George Hawles by the same Judge upon June 1. 1687. Then it was urged That the Statute of Jac. 2. for reviving and continuance of several Acts of Parliament therein mentioned proves this for 't is enacted That if after the Death of the Father any of his Children shall die intestate without Wife or Children in the life time of the Mother every Brother and Sister and the Representatives of them shall have an equal share and that a Brother of the half Blood is a Brother to the Intestate as well as a Brother of the whole Blood and therefore ought to have a share and an equal share with the rest And upon consideration of all those Presidents and there being no Practise against it except that of Sir Richard Lloyd's it was prayed that the Decree might be confirmed and it was confirmed Lee Warner Versus William North. APpeal from a Decree of the Lord Chancellor which over-ruled the Exceptions taken by the Appellant to a Decree made by Commissioners for Charitable Uses concerning a Gift by Bishop Warner's Will and the same was received and the Parties ordered to answer And each side being heard by their Counsel the Decree was affirmed Vide the Statutes concerning Charitable Uses and the Delegates and query how they differ And whether an Appeal doth not lye upon a Sentence by Delegates as well as on a Decree of Chancery upon a Decree of Commissioners for Charitable Uses Briggs versus Clarke WRit of Error on a Judgment in B. R. affirmed in the Exchequer Chamber upon a Verdict in Debt for the Escape of one Cook and none appearing for the Plaintiff in the Writ of Error the Judgment was affirmed with the increase of Forty pounds in Costs Vide the Case of Ellison and Warner Mich. 18 Car. 2. B. R. 2 Keeble 91. Whether a Writ of Error lyes in Parliament
upon grievous pain sometimes before the King himself sometimes before the King's Council sometimes to the Parliament to answer thereof anew to the grievance of the Parties and in Subversion of the Common-Law of the Land 't is Enacted that after Judgment the Parties shall be in Peace until the Judgment be undone by Attaint or Error this is agreed and amplified 3 Bulst 47.115 Here is mention even of the Parliaments Summoning persons to Answer in Subversion of the Laws There are other Statutes not Printed as 4 Edw. 3. numb 6. Cotton's Abridg. 7. and the same in 2 Inst 50. The Lords gave Judgment of Death without Indictment upon some who were not their Peers and agreed in full Parliament that they should be discharged of so doing for the future and that it should not be drawn in President that the like should not be done on any but their Peers 't is a Declaration of the Lords nay 't is an Act of Parliament and penned in the same manner as 29 Edw. 1. Statute del Estoppel at a Parliament agreed 33 Edw. 1. by common accord and 9 Edw. 2. the King in Parliament by Advice of his Council and these are held to be Statutes This was not only an acquittal from the trouble but a clear denial of the Power as appears by the words before that they had assumed upon themselves and the words subsequent that the like should not be done again The Complaint was because it was intermedling with Commoners after that manner Suppose this House should make an Order upon this matter which is a Law business and not of Equity no Execution can be made of it but Commitment There is the 15 Edw. 3. now insisted on Printed in the Old Statute Book but omitted in this 't is in Cotton 28.33 and 't is thus the Commons complained of breaches of Magna Charta c. and pray remedy with this Conclusion That every Man may stand to the Law according to his Condition and the Lords pray that Magna Charta may be observed and further that if any of what Condition soever should break it he should be adjudged by the Peers of the Realm in Parliament the next Parliament and so from Parliament to Parliament and it was Enacted accordingly This was Specious the same being only for the breakers of Magna Charta but in 17 Edw. 3. that whole Parliament i. e. all the Acts of it are Repealed which Repeal seems designed for the Petitioners for it Repeals the supposed Laws which make both their Title and this Jurisdiction which they would support 'T is observable what is said in the Repeal that the Act was contrary to the King's Oath in prejudice of his Crown and Royalty and against the Ancient Law And such is this for here 's no use of the King 's Writ no Address to or Command by the King for this Proceeding nor any mention of his name in the Petition By 1 Hen. 4. cap. 14. Appeals in Parliament for Offences are declared against as contrary to Reason and the Constitution this is such This is not incident to the Power of Hearing and Determining upon the Writ of Error because as was said before it belongs properly to the Chancery to Issue a Writ Commanding it to be done Si ita est as is Suggested By 12 Rep. 63. the King himself cannot take any Cause out of the Court where it depends and give Judgment on it himself And this House can make no Order upon this Petition that will be a Record as in Hob. 110. The Petition is in the name of a Person not party to the Record which seems very new for 't is by a Stranger in the eye of the Law to the Cause and consequently ought not to be joyned in any legal proceeding if this be such This is not incident to the Jurisdiction of the Error no more than Amendment of an Error in the Court from whence the Record comes or the filing of a Baile a Declaration or a Warrant of Attorney or the Sueing out another Process in Defect of one lost or the like These things are never Examinable in the Superior Court for in these Collateral things the other are intrusted Here 's no Hardship upon the Petitioner for he might have been Non-suite or have given this Repeal'd Act in Evidence at first and then have demurr'd on the Defendant's Evidence or might have Sued a Writ on the Statute of Westminster 2. But suppose this House should Examine this matter and find the Petition to be groundless will such Determination prevent the Judges from being troubled by Sueing of the Writ afterwards Suppose it E contra that this House should punish the Judges and commit them and award Damages or make other Order in favour of the Petitioners would such Order bar or stop the legal process afterwards can any Order made here be used below as a Recovery or Acquittal as an Auterfoits Convict or Auterfoits Acquitte If there be any thing in it 't is a breach of a Statute Law for which they are punishable at the King's Suit will the proceeding here save them from the trouble of answering to an Indictment or Information for the same thing Then since a Writ lies to Command them to Seal this Bill and since an Act of Parliament directs it if it were a true one perhaps it may be Questionable if they do not break their Oaths in case they Sign it in Obedience to any other direction If they did it in Obedience to the Royal Word Signet or Privy Seal of the King their Master 't would be a breach of their Oath Then as to presidents of the Exercise of such a Jurisdiction none come near this And abundance of particular Cases were put and answered but the considerable one was Jeffery Stanton's Case 14 Edw. 3.31 Cot. 30. The Case is odd 't is in Fits Abridgment tit voucher 119. there is a Writ directory to the Judges to proceed to Judgment or to bring the Record before the Parliament that they might receive an Averment c. To this Case it was Answered That the same was long before most of the Statutes aforementioned and in full Parliament and in that Case Stone would not agree to it but adhered to the Law according to his Opinion 't is true Shard in the absence of Stone gave Judgment according to that Advice but a Writ of Error was afterwards brought in the King 's Bench and the Judgment was Reversed 15 Edw. 3. B. R. even contrary to the Advice of Parliament to the other Judges As to the other Cases of Property Examined here either the Parties submitted to Answer or they were at the Suit or Complaint of the Commons or by Consent of the King and Commons but none of them carry any resemblance to this where the Judges insist upon it that there is another and a proper Remedy All the Cases in Ryley's Placita Parliamentaria are either Ordinances of Parliament or directions to follow
afterwards the 20 Aug. 25 Car. 2. he being so seized did Make Seal and as his Deed deliver a certain Writing purporting a Surrender of the said Lands to the said Sir Simon Leach which Writing was prout c. Then they find that the said Simon Leach the Brother non fuit compes mentis sue tempore confectionis sigillationis deliberationis scripti illius c. That afterwards viz. 10 Nov. 25 Car. 2. the said Simon the Brother had Issue of his Body on the Body of the said Anne his Wife Charles Leach that the said Simon died and Charles Leach the Lessor of the Plaintiff is eldest Son and Heir of the said Simon c. Et si videbitur Cur ' quod c. Upon this Verdict there was Judgment for the Plaintiff And now it was argued That the said Judgment was Erroneous and said that in the Case there were two Queries 1. If this were a good Surrender there being no Acceptance or Agreement by Sir Simon before the Birth of the first Son Charles But this was not insisted on before and therefore waived here the same having been adjudged by the Lords to be a good Surrender even to an Infant without Acceptance in another Action between the same Parties which you may see reported in 2 Ventris 198 208. Then it was argued on the second Query That the Lessor of the Plaintiff in the Ejectment being a Remainder Man in Tail cannot take any Advantage of his Father's Lunacy That in this Case he could claim no Title as Heir at Law to his Father or Uncle because of the intermediate Remainder to the Defendant in Tail so that quoad this Estate he is as a meer Stranger and not as Heir and tho' he were able to avoid it by Writ or the like yet it being once good the particular Estate of Simon the Father of Charles was determined before the Contingent Remainder to the first Son could take place and consequently it can never after revive Then the Question is Whether this Surrender by a Non compos being an act done by himself and not by Attorney be void or only voidable There 's no express Case that a Surrender by one who is Non compos to him in Remainder is void Perhaps 't will be said as it hath been That the Acts of a Madman are meer Nullities by all Laws in the World But to this 't is an Answer That the Laws of England have made good and honest Provisions for them so as to avoid their Acts for the Benefit of the Party of the King and of the Heir But it was repeated that this was a Contingent Remainder and if it could not vest when the particular Estate did determine whether by Death or Surrender it never could vest at all for a future Right to defeat the Surrender as Heir cannot support such a Contingency a present right of Entry would but if no such present right the Remainder is gone for ever and here was no such in Charles If Tenant for Life make a Feoffment with condition of Re-entry the Contingent Remainder shall never arise again tho' the Condition be broken and a Re-entry were made So is the Case of Purefoy versus Rogers 2 Saund. 380. Wigg versus Villers 2 Rolls Abridg. 796. and then Charles cannot avoid this Deed for the avoiding of a Deed is to take somewhat out of the way in order to the revesting of somewhat but here was nothing to work upon for if the Surrender were good for a Moment the particular Estate for Life was once gone and consequently for ever and this must hold unless the Act were totally void Then 't was argued That during the Life of the Party 't was only voidable for the King by Office no Man can Stultifie himself and so is the great Resolution in Beverly's Case 4 Rep. and 1 Inst 247. and Whittingham's Case 8 Rep. and if it be not void as to himself it cannot be void as to others And tho' Fitzh in his N. B. says that he himself may have a dum non fuit compos that is not agreeable to the received Law for Beverly's Case was never shaken till now and Fitzh supposes it only voidable by saying that Writ doth lye There is also a Reason for this Rule of Law that a Man shall not disable himself by pretence of Distraction because if the Pretence were true he had no memory and consequently could not know or remember that he did such an Act and therefore 't is as it were impossible for him to be able to say that he was so distracted when he did it 't is for him to say what 't is not possible for him to know But they would compare this to the Case of an Infant yet even there all his Acts are not void his Bond is only avoidable he cannot plead that 't is not his Deed 'T is true that Acts apparently to his prejudice cannot be good as 1 Cro. 502. Suppose a Non compos Signs Seals and Delivers such a Deed and after recovers his Senses and agrees to it would not this be a good Surrender from the first Perkins sect 23. 1 Inst 2. and if it can be made good by a subsequent Agreement 't was not totally void and if not totally void 't is with the Plaintiff in Error The Law besides is very tender in case of Freeholds to make Conveyances void by bare Averments and this would be of dangerous Consequence if when there was no Inquisition or Commission of Lunacy during Life that thirty or forty years after a Conveyance it should be in the power of a Stranger to say that the Vendor was mad 't will make Purchasors unsafe Acts solemnly done ought to have a solemn Avoidance The 1 Hen. 5. cap. 5. Fine to be void 't is void as a Bar but yet it makes a Discontinuance and must be solemnly avoided Lincoln Colledge Case 3 Rep. Stroud and Marshal 3 Cro. 398. Dett sur Oblig ' The Defendant pleads that at the time he was of non sane memory and on demurrer adjudged no Plea and the Opinion of Fitzh held not to be Law And 3 Cro. 622. 50 Assis 2. Fitzh Issue 53. a Release by a Non compos which is much the same with a Surrender only one works upwards and the other downwards and after Recovery the Party agrees to it the same is binding 39 Hen. 6.42 and 49 Edw. 3.13 Then was mentioned the Provision of the Law in these Cases besides the Care of the Court of Chancery which protects the weak and unwary by Rules of Equity There 's a Writ de Ideota Inquirend ' and the express direction of the Writ is to enquire quas terras alienavit which shews that 't is not void The Statute of Prerogativa Regis is express Authority for it the Reason given is that such Persons Lands should not be aliened to their hurt or the King 's It must be agreed that before Office found the King cannot avoid
only the signification of a Man's purpose how his Estate shall go after his death and tho' it be solemnly made in writing signed published and attested yet if he do any intermediate Act whereby it must be necessarily inferred that such Purpose and Intention of his did not continue the Consequent must be that what was done before as to such Will is totally defeated and unless it be set up anew by a Republication 't is as no Will. The Case of Mountague and Jeffryes 1 Rolls Abridg. 615. and Moore 429. proves this If a Conveyance at Law shews an Intent different from the Will as to Lands 't will be a Revocation tho' such Conveyance be not perfect to all purposes Hodgkinson versus Wood Cro. Car. 23. 'T is a Revocation tho' the Owner should be in again as of his old Reversion The Case of Lestrange and Temple 14 Car. 2. reported in Sid. 90. 1 Keble 357. is stronger but this is stronger yet because 't is not to the old use but limited in a different manner 't is a qualified Fee and to be determined upon the qualifications taking effect and so cannot be the old Estate and if it were yet 't is a Revocation and there 's no Circumstance in the Case that can direct a Court of Equity to differ from the Law and therefore it was prayed that the Decree of Dismission might be affirmed and it was affirmed John Fox Gen ' Plaintiff Versus Simon Harcourt Arm ' Defendant WRit of Error on a Judgment in B. R. The Case was upon a Special Verdict in an Action of the Case upon an Indebitus Assumpsit for Moneys received to the Plaintiff's use brought there by Harcourt versus Fox which Verdict finds the 37 Hen. 8. cap. 1. intituled a Bill for Custos Rotulorum and Clerkship of the Peace Then they find that 1 Will. Mar. intituled An Act for enabling Lords Commissioners for the Great Seal to execute the Office of Lord Chancellor or Lord Keeper and several Clauses therein concerning this Matter Then they find that John Earl of Clare was by Letters Patents dated the 9th day of July Anno 1 Will. Mar. according to the 37 Hen. 8. made Custos Rotulorum for the County of Middlesex and set forth the Letters Patents in haec verba Then they find that the Office of Clerk of the Peace for this County being void the Earl of Clare by writing under his Hand and Seal dated 19 July Anno primo did nominate appoint and constitute the Plaintiff Mr. Harcourt to be Clerk of the Peace for Middlesex for so long time only as he should well demean himself therein and the Instrument was found in haec verba Then they find him to be a Person resident in the County capable and sufficient to have and execute the Office that he took upon him the execution of the said Office and before he did so he at the Quarter Sessions for the said County in open Sessions took the Oath required by the late Act of this King and the Oath of Clerk of the Peace and did do and perform all things necessary to make him a compleat Officer and that during all the time he did execute the sald Office he demeaned himself well Then 't is found That on the fifth of February Anno tertio the said Earl of Clare was in due manner removed from being Custos and William Earl of Bedford by Letters Patents dated the sixth of February was made Custos according to the 37 Hen. 8. and those Letters Patents are also found in haec verba Then they find an Appointment in Writing dated the fifteenth of February by the said Earl of the said Fox to be Clerk of the Peace for the said County to hold the said Office for and during the time the Earl should enjoy and exercise the said Office of Custos so as he well demean himself therein They likewise find Fox to be a Person capable c. and that he took the Oath and did the other things requisite to qualifie himself for the said Office that he did thereupon enter on the Execution of the said Office and during the time that he executed it he well demeaned himself therein and did take the Fees belonging to the said Office which they found to be to the value of five shillings Sed utrum c. Et si c. Et si c. Upon this Judgment was given for the Plaintiff below And it was now argued for the Plaintiff in the Writ of Error That this Judgment ought to be Reversed And first it was said that whatsoever the Common Law was as to ancient Offices could be no Rule in this Matter Many and most of those were for Life but my Lord Coke says That the Office of Chancellor of England could not be granted to any one for Life because it was never so granted the like of Treasurer So that Custom and nothing else can govern in those Offices But here can be no pretence of its being a Common Law Office for the Common Law knew no such thing as Justics of the Peace to whom they say he is a Clerk That the first Statute which makes Justices hath no mention of Clerk but 't was meerly an Incident some Person of necessity was to officiate in that kind And where he is called the Justices Clerk it can only be that he was one appointed by them to make and write their Records for them and 't is probable that in ancient time he that was their Clerk was Custos Rotulorum and intrusted with the keeping of the Records then it coming to be an honorary thing to be Custos he that was the most eminent for Quality amongst them was appointed to that Trust and then he appointed his Clerk under him For there 's no ancient Statute or Law that empowered the Chancellor to make a Custos but he making out the Commission of the Peace might very well name one of them to be Keeper of the Records and to have the first place amongst them And such Person might very well appoint his Deputy or Servant who in time came to be Clerk of the Peace We have no certain but this is the most probable Account of the thing Then the Statute of 37 Hen. 8. recites That the Chancellor had much perverted the Institution by assuming to make Custos's for Life and so the Clerks of the Peace were for Life likewise The end of that Act was not only to remove ignorant Persons for the Common Law it self would turn any such out of Office if he be not able to perform the Duty of it but the Grants for Life were the great Grievance and therefore to remedy that Mischief the Custos must be appointed by Bill signed with the King 's own hand and at his pleasure removeable and the Clerk of the Peace to be appointed by the Custos and to continue only during the time of the others continuing to be Custos This tho' not
Exception to all Grants for Lives but Credit ought to be given to the Honour Wisdom and Judgment of former as well as present Officers in respect of such Nominations 'till some Misbehaviour shews the Choice to have been ill and when that appears the Persons are removable and then the Inconvenience is likewise removed Here the Jury have found the Plaintiff in the Action below to be able and sufficient and well qualified for the Office and to have done his Duty in the Office while he had it Wherefore it was prayed that the Judgment might be affirmed and it was affirmed Henry Lord Bishop of London and Peter Birch D.D. Plaintiffs versus Attorney General pro Domino Rege Regina WRit of Error to Reverse a Judgment given in B. R. in a Quare Impedit The Case upon Record was thus The Declaration sets forth the Act of Parliament which Erects and Constitutes the Parish of St. James's within the Liberty of Westminster out of the Parish of St. Martyns c. prout that by force and virtue of that Act the said Parish was made and the District therein named became a Parish and Dr. Tennison Rector of the same that he was afterwards Rite et Canonice consecratus Episcopus Lincoln ' and that thereby the said Church became void and thereupon it belonged to the King and Queen to present a fit Person ratione Prerogative sue Regie Corone sue Angl ' annex ' and that the Defendants hindred c The Defendants crave Oyer of the Writ and it is general Vic' Com' Midd ' salut ' precipe Henric ' Episcopo Lond ' Petro Birch Sacre Theologie Professor ' quod juste et sine Dilatione permittant nos prefentare idoueam personam ad c. que vacat et ad nostram spectat dâ—mationem Et unde pred' Episcopus et Petrus nos injuste c. And then they pray Judgment of the Writ and Declaration because that between the Writ and Declaration there is a material variance iâ— hoc viz. quod ubi per Breve pred' pred' Dom ' Rex et Regine â—â—â—itulant se ad Donationem pred' c. pleno Jure tamen per Narr ' pred' iidem Dominus Rex et Domina Regina intitulant se ad c. Sec â—â—â—tione Prerogative sue Regie Corone sue Anglie annex ' unde pro variatione pred' inter Breâ—e et Narr ' pred' they pray Judgment of the Writ and Declaration aforesaid and that the said Writ may be quash'd c. The Attorney General Demurs and the Defendants Joyn and there 's Judgment to answer over Then the Bishop Demurs generally and Mr. Attorney Joyns and Dr. Birch pleads that he is Incumbent and then sets forth the Statute of Hen. 8. concerning Dispensations and that after Dr. Tennison was elected Bishop the Archbishop granted to him a Commendam Retinere with power to take and enjoy the Profits to his own use by the space of seven Months That this Commendam was confirmed under the Great Seal according to the Statute and the said Dr. Tennison did enjoy the same accordingly c. Mr. Attorney Demurs and Dr. Birch joyns in Demurrer and Judgment was given for the King c. And now it was argued in the first place That the Plea in Abatement was good and if so all that followed was Erroneous And to make that Plea good it was said that there is a variance between the Writ and Declaration that they are founded upon several Rights that upon arguing the Merits of the Cause it must be owned to be so on the other side That no Argument can be urged to maintain the Declaration in general but the Jure Prerogative and consequently it must be different from the Title or Interest pleno Jure They have said below that tho' the King's Interest is bound by Statutes yet his Prerogative is not This Distinction of the Rights must be allowed or else the main Judgment is not justifiable and that there is such a Distinction appears in Gaudy and the Archbishop of Canterbury's Case in Hob. 302. by the Presentation there recited which was drawn by the King's Counsel 't is ad nostram Presentation ' pertinet sive ex pleno Jure sive ratione Prerogative By Bracton 415. If the Writ be founded on one Right and the Declaration on another the Writ must be abated as in Case of Executors and Corporations In some Cases it must be agreed That the Writ may be General and the Count Special but none of those Cases will reach to this where several Rights are pretended 'T is no Objection to say That there is no Writ in the Register for this for that 's rather an Argument against their Prerogative Besides this Prerogative was never allowed till Dyer's time and in the old Books 't is denied where the King was not Patron In the Register 30. is a Writ Special quod permittant nos presentare idoneam personam ad Ecclesiam de c. que vacat et ad nostram spectat Donationem ratione Archiepiscopatus Cant ' nuper vacantis in manu existentis And another Sine titulo ut de jure and that is General ad nostram spectat Donationem Another Writ is there Ratione custodie terre et heredis upon a Tenure in capite And another Ratione foris facture unius et ratione custodie terre et heredis alterius per servitium Another Writ pro Domino Rege et aliis conjunctim Register 32. is another such by reason of the Vacancy of the Archbishoprick 'T is not an Answer That the Writ of Waste is General and the Count Special because that is not en auter droit Then it was said that it is true That where another Writ cannot be had a General Writ and Special Count are allowable but here a Special Writ might have been sued And there were cited the 1 Inst. 26 53 54 235 344 3 Cro. 185 829. And as to the Queen and the Archbishop of York's Case 3 Cro. 340. that doth not come up to this Case for tho' the Writ were General and the Count in Right of the Dutchy of Lancaster yet both were as Patron pleno jure and the Count did only shew how the Plaintiff came to be Patron but here they were several Rights as dictinct as a Claim by a Man singly and a Claim as Executor or in jure Vxoris In Answer to this were cited the Presidents in Mich. 31 Hen. 6. Rot. 65. Pasch 9 Eliz. Rot. 1408. or 1410. Hill 13 Car. 1. Rot. 486. Trin. 31 Car. 2. Dominus Rex versus Episcop ' de Worcester Writ General and Count Special Rastal 528 530. Then it was argued upon the Merits of the Cause as it was appearing upon the Declaration and Plea and Demurrer and therein three Queries were made as had been by the King's Counsel below 1. If the King hath any Prerogative to present upon an Avoidance by Promotion where neither himself nor the Bishop was Patron but
the Earl of Pembroke's Case in Littleton's Rep. 181. and in Jones 215 223. the Court went upon the Reason that the Jury found him to be the same Person Latch 161. there they would intend him an Esq at the time of the Commission and a Knight at the time of the Return and it was for Necessity-sake for to prevent the avoiding of so many Trials as had been upon that Commission Lord Ewre's Case 2 Cro. 240. there 't was held well enough because sufficiently described so in a Grant if it cannot be intended otherwise than to the same Person there 't is well enough but here they can never be the same In Case of an Earl or Bishop there 't is understood who is meant by the Description there can be but one of that Title but here the Plea saith That he was not a Knight at the time and Sir Thomas Ormond was attainted by the Name of Thomas Ormond Esq and ill for that Reason 2 Rolls Abr. 43.198 Dyer 150.1 Leon. 159.160 the highest and lowest Dignity are universal and the same in every Kingdom 7 Rep. 16.20 Edw. 4.6 can any body say upon this Grant That the King intended to pass this Advowson to a Man that then was only an Esq Selden 682. the Addition of Esq is drowned and merged in that of Knight and Selden was a very competent and good Judge of this Matter Then 't was said that the only way to salve this which had not been urged for the Plaintiff was that he might be reputed a Knight and a Name of Reputation will be sufficient to take by and to this it was answered That he who is reputed a Knight and is none cannot take by that Name And besides if he could it should have been pleaded by a per Nomen in case of a Bastard the Reputative Name must be shewn to make the Grant good the Degree of Knight was formerly of Esteem in the Law as upon a Writ of Right if the Mise be joyned and if a Peer be Party to any Issue at Law triable by Jury c. As to the Objection that a Grant to one by a Name of Dignity which he really had not viz. The Eldest Son of a Duke as a Marquess and that a Grant to him by that Name is good 't was answered That there was a real Reputation he takes place after all real Marquesses as a Marquess by the Rules of Heraldry There 's a ground for it from the Precedency given him by the common Use and Custom of the Realm and they are named so now-a-days in Deeds but anciently Conveyancers were more Cautinos and named them Esquires commonly called Marquesses and even now careful Men call them eldest Sons of such Dukes c. If a Reputation would have done it the pleading should have been with a Cognit ' et Reputat ' per Nomen It is the name which intitles the Grantees to take and otherwise they have no pretence to claim by such Letters Patents no more than John or Thomas Theckston and if the Person hath any other Name of Reputation that ought to be shewn wherefore it was hoped That this was cause enough to affirm the Judgment Then it was argued That this Grant was void as a Grant of an Advowson appendant when upon the Record it appeared to be an Advowson in gross that the Defendant had admitted it an Advowson in gross in Queen Elizabeth that he hath not only admitted but confess'd it in almost direct terms by saying Bene Verum est that Car. 1. became and was seized in manner as in the Declaration this is a full Confession That the Queen was seized in gross 't was said to come to that King by Descent and so there is no room left for Presumption or Intendment that it was by any wrongful or other Seisin Then 't was urged That nothing passed to the Earl of Warwick because not appendant but in gross and for this was cited Moor 45. Hob. 322 323. and other Books so that it doth not appear that the King did intend to pass this Advowson for in the Grant to the Earl of Warwick there 's no Grant of it by any express Name which its probable would have been had the same been intended now to suppose it appendant is to suppose against the Record against both the Averment in the Count and the Confession in the Plea 't is in general Words una cum Advocationibus c. nor does it pass by the Letters Patents of Car. 1. because it did not pass to the Earl by those of Queen Eliz. this Grant is ushered in after all the Recitals and those suppose the Advowson to have passed by the first Igitur wherefore it must be upon Consideration of what is before alledged this is at least an illative Word and cannot begin an independent Substantive Clause of it self so is Vlterius 2 Browt 132. If this Granting Part should be taken to be Substantive and to have no Reference to what is precedent all those Recitals would be vain and insignificant and the King might as well have begun with the Words of the Grant The King's Grants are to be taken according to his Intentions and those are to be expounded by the Recitals then were quoted many Cases as 5 Rep. 93. Hob. 120.203 Hutt 7.2 Rolls Abr. 189.11 Rep. 93. and it was said That here are many false Recitals Sir Will Theckston claims that must be intended a lawful Claim whereas he could not lawfully challenge any Right to this Advowson That the King presented Wilson by lapse The King was deceived in thinking that this passed to the Earl The Agreement between Dr. Wickham and Sir William Theckston was only to deceive the King Here 's no notice taken of the Advowsons being in gross The Quality and Nature of the Advowson is totally concealed from the King the Words notwithstanding any Defect helps only want of Form Here was a plain Artifice in the Matter in Queen Elizabeth's Grant it was Advowsons in General c. but when Car. 1. is to confirm that Grant 't is of that Church by Name all the intermediate Recitals between that of the first Grant and the words of this new Grant are dependent on that first The King's Intention That Theckston should have it is not absolutely but secund ' Thenorem Intentionem of the former Patent the King meant only to restore to him his old Right which he had by that Patent notwithstanding the Presentations 10 Rep. 110. all Facts recited in the King's Grant shall be intended to be of the Suggestion of the Patentee If there be several Considerations and one false and the King deceived thereby it shall viciate the Grant 3 Leon. 249. Voers Case cited in Legates Case Fits Tit. Grant 58. 3 Leon. 119. If the Granting Words had stood alone the Case had been more doubtful but here they are all coupled In all the King's Grants there must be some Considerations for his Favour and abundance
specially That if Parol Evidence or a naked Averment should be admitted then they find to such Uses But here 't is like finding the Badges of Fraud without finding the Fraud it self or a Demand and Denial without finding a Conversion upon neither of which can the Court judge the Thing to be a Fraud or a Conversion And for these and other like Reasons it was prayed that the Judgment might be reversed It was argued on the other side with the Judgment That this Fine thus levied was not to the use of the Husband but of the Wife and her Heirs that the Fine is not to the Uses in the Deed of the 29th but controuled by that of the 31st 'T was agreed that if there be a Deed to levy a Fine and in pursuance thereof a Fine is levied to the Person of the Lands and at the time no Proof shall be allowed that the Fine was to any other Use but if it be in case of a subsequent Deed then Averment may be against it but by the making of a precedent Deed all Parties are estopped to contradict it unless there be another Deed of equal Nature to controul that Where the Deed is punctually observed there 's no liberty to aver the contrary but where 't is not pursued the Averment is consistent Where it doth vary yet if nothing doth appear to the contrary there the fine shall be construed to be to the Uses of the Deed by construction of Law a Wife is bound by the Husband's Declaration and if the Fine be in pursuance of the Husband's Deed 't is as binding to her as if she were a Party An Infant cannot avoid a Fine where there was a Deed agreeable but by reversing it Then 't was argued That here was such a Variance as did allow of such Averment that 't is true the Deed of 29. had been a good Declaration of the Uses of this Fine notwithstanding the Variance if the Writing of 31. had not been made but there being a Variance that is admissible that this Fine now found differs as much from that in the Deed as if it had been levied at a time after that levying it before makes it not the same The Woman perhaps here did agree to levy a Fine at this distance of time that she might in the mean while have a competent Provision out of her Husband's Estate for her Joynture then when she levies this Fine at a different time she doth not do it in pursuance of the first Deed. Then 1 Rep. 76 99. 3 Bulstr 231. 2 Rolls Abridg 251. 2 Cro. 646. 2 Rolls Abridg. 799. Savil 124. 1 Leon. 210. 3 Cro. 210. 1 And. 240. were quoted and either answered or applied to this Point of Variance Then 't was said That there was a difference between a Fine that varies from a precedent Deed and a Fine that is followed with a subsequent Deed or Declaration of Uses If there be a subsequent Declaration the Heir at Law cannot aver that 't was to the use of the Conusor and his Heirs or to any other use then what is in the Deed the Party himself or his Heirs cannot aver it but they are estopped by this Deed tho' subsequent however a Stranger is at liberty to make such Averment But if a Deed be precedent and the Fine varies and is not the same there none are estopped neither the Party himself his Heir nor a Stranger because the Fine stands alone without any Deed referring to it and declaring the uses of it ' Then 't was urged That this second Deed was sufficient to declare the uses of this Fine If the use arise upon or by transmutation of the Possession as by Fine or Feoffment 't is sufficient without any Deed the use arises only upon the Parties Declaration or Appointment If without a transmutation of Possession there must be some Agreement binding the Party upon some Consideration for the use being founded in Equity the Chancery would never relieve where there was no transmutation of Possession or Agreement upon Consideration and if in Consideration of Blood it must be by Deed because the Consideration is not binding without it Moore 's Rep. Callow and Callow If this Writing of 31. had expresly declared that it should enure to the Husband and his Heirs upon such a Contingency this had been a good original Declaration of the use and would have altered the Estate because of the transmutation of the Possession and as 't is now penned 't is a good Writing sufficient to declare the uses of the Fine any sort of Agreement whereby the Parties intent appears is sufficient an use is an equitable thing and if it appears to have been intended that is enough 2 Leon. 14. Brent's Case any Agreement between the Party that hath the Estate and him who is to have it may raise an use in this Case a Bargain and Sale of the Lands carries the use tho' no mention of it 8 Rep. Fox's Case Crossing and Scudamore In this Case there was an Agreement betwixt Husband and Wife that he should have the Lands if he made a Jointure A Bargain and Sale tho' not inrolled a Charter of Feoffment without Livery shall raise the use of a Fine levied between the same Parties therefore this Writing is a good Appointment But suppose it were not so of it self 't is sufficient to controul that of the 29th for 't is agreed thereby that all Deeds shall be revoked which shews plainly that the Fine was not to be to the uses mentioned in that Deed especially when it varies from it A Parol Declaration of the Mind of the Party will be enough to controul and hinder the raising of an use by the Deed and Fine where different and if so then the use here is to the Wife and her Heirs Then supposing the Variance frivolous and immaterial this Writing of the Husband and Wife is a good appointment the Trustees or Conusees of the Fine need not to be Parties to the appointing or declaring of the uses The Indenture precedent is but directory and if there be another direction under Seal before the Fine it must over-rule the first Writing of it self seems enough 2 Cro. 29. 3 Cro. 571. But suppose an Indorsment on the Indenture revoking one use before the Fine be levied would not that controul it This is rather like a last Will and the last before the Fine must stand A Covenant to stand seized must have all the necessary Parts of a Deed so as to have been obligatory in Chancery before the Statute but a meer Declaration of uses need not be so formal The use declared by the 29th was always revocable till the Fine was levied and this is sufficient both to revoke the last Declaration and to declare new uses this amounts at least to a Deed-Poll and therefore sufficient Then were cited Moore 22 512. Latch 139. and many other Authorities And upon the whole 't was prayed that the Judgment should