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
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
only the signification of a Man's purpose how his Estate shall go after his death and tho' it be solemnly made in writing signed published and attested yet if he do any intermediate Act whereby it must be necessarily inferred that such Purpose and Intention of his did not continue the Consequent must be that what was done before as to such Will is totally defeated and unless it be set up anew by a Republication 't is as no Will. The Case of Mountague and Jeffryes 1 Rolls Abridg. 615. and Moore 429. proves this If a Conveyance at Law shews an Intent different from the Will as to Lands 't will be a Revocation tho' such Conveyance be not perfect to all purposes Hodgkinson versus Wood Cro. Car. 23. 'T is a Revocation tho' the Owner should be in again as of his old Reversion The Case of Lestrange and Temple 14 Car. 2. reported in Sid. 90. 1 Keble 357. is stronger but this is stronger yet because 't is not to the old use but limited in a different manner 't is a qualified Fee and to be determined upon the qualifications taking effect and so cannot be the old Estate and if it were yet 't is a Revocation and there 's no Circumstance in the Case that can direct a Court of Equity to differ from the Law and therefore it was prayed that the Decree of Dismission might be affirmed and it was affirmed John Fox Gen ' Plaintiff Versus Simon Harcourt Arm ' Defendant WRit of Error on a Judgment in B. R. The Case was upon a Special Verdict in an Action of the Case upon an Indebitus Assumpsit for Moneys received to the Plaintiff's use brought there by Harcourt versus Fox which Verdict finds the 37 Hen. 8. cap. 1. intituled a Bill for Custos Rotulorum and Clerkship of the Peace Then they find that 1 Will. Mar. intituled An Act for enabling Lords Commissioners for the Great Seal to execute the Office of Lord Chancellor or Lord Keeper and several Clauses therein concerning this Matter Then they find that John Earl of Clare was by Letters Patents dated the 9th day of July Anno 1 Will. Mar. according to the 37 Hen. 8. made Custos Rotulorum for the County of Middlesex and set forth the Letters Patents in haec verba Then they find that the Office of Clerk of the Peace for this County being void the Earl of Clare by writing under his Hand and Seal dated 19 July Anno primo did nominate appoint and constitute the Plaintiff Mr. Harcourt to be Clerk of the Peace for Middlesex for so long time only as he should well demean himself therein and the Instrument was found in haec verba Then they find him to be a Person resident in the County capable and sufficient to have and execute the Office that he took upon him the execution of the said Office and before he did so he at the Quarter Sessions for the said County in open Sessions took the Oath required by the late Act of this King and the Oath of Clerk of the Peace and did do and perform all things necessary to make him a compleat Officer and that during all the time he did execute the sald Office he demeaned himself well Then 't is found That on the fifth of February Anno tertio the said Earl of Clare was in due manner removed from being Custos and William Earl of Bedford by Letters Patents dated the sixth of February was made Custos according to the 37 Hen. 8. and those Letters Patents are also found in haec verba Then they find an Appointment in Writing dated the fifteenth of February by the said Earl of the said Fox to be Clerk of the Peace for the said County to hold the said Office for and during the time the Earl should enjoy and exercise the said Office of Custos so as he well demean himself therein They likewise find Fox to be a Person capable c. and that he took the Oath and did the other things requisite to qualifie himself for the said Office that he did thereupon enter on the Execution of the said Office and during the time that he executed it he well demeaned himself therein and did take the Fees belonging to the said Office which they found to be to the value of five shillings Sed utrum c. Et si c. Et si c. Upon this Judgment was given for the Plaintiff below And it was now argued for the Plaintiff in the Writ of Error That this Judgment ought to be Reversed And first it was said that whatsoever the Common Law was as to ancient Offices could be no Rule in this Matter Many and most of those were for Life but my Lord Coke says That the Office of Chancellor of England could not be granted to any one for Life because it was never so granted the like of Treasurer So that Custom and nothing else can govern in those Offices But here can be no pretence of its being a Common Law Office for the Common Law knew no such thing as Justics of the Peace to whom they say he is a Clerk That the first Statute which makes Justices hath no mention of Clerk but 't was meerly an Incident some Person of necessity was to officiate in that kind And where he is called the Justices Clerk it can only be that he was one appointed by them to make and write their Records for them and 't is probable that in ancient time he that was their Clerk was Custos Rotulorum and intrusted with the keeping of the Records then it coming to be an honorary thing to be Custos he that was the most eminent for Quality amongst them was appointed to that Trust and then he appointed his Clerk under him For there 's no ancient Statute or Law that empowered the Chancellor to make a Custos but he making out the Commission of the Peace might very well name one of them to be Keeper of the Records and to have the first place amongst them And such Person might very well appoint his Deputy or Servant who in time came to be Clerk of the Peace We have no certain but this is the most probable Account of the thing Then the Statute of 37 Hen. 8. recites That the Chancellor had much perverted the Institution by assuming to make Custos's for Life and so the Clerks of the Peace were for Life likewise The end of that Act was not only to remove ignorant Persons for the Common Law it self would turn any such out of Office if he be not able to perform the Duty of it but the Grants for Life were the great Grievance and therefore to remedy that Mischief the Custos must be appointed by Bill signed with the King 's own hand and at his pleasure removeable and the Clerk of the Peace to be appointed by the Custos and to continue only during the time of the others continuing to be Custos This tho' not
Court recommitted which is the same Assault Taking and Imprisonment and Traverses absque hoc that he was guilty of the Assaulting Taking or Imprisoning him within the time last mentioned at London or elsewhere then in the Isle of Barbadees or otherwise or in other manner then as before The Plaintiff demurred and the Defendant joyn'd in Demurrer and Judgment was given for the Plaintiff and a Venire awarded tam ad triand ' exitum quam ad inquirend ' de dampnis c. and the Issue was found pro quaerent ' and 6 d. Damages and on the Demurrer 500 l. Damages and Judgment for Damages and Costs amounting in the whole to 590 l. The Plaintiff Sir J. Witham dying Trin. 2 Wil. Mar. the Judgment was revived by Scire Facias brought by Howel Gray and Chaplain Executors of Sir J. W. quoad omnia bona catalla sua except one Debt due by Bond from Henry Wakefield And at the Return of the Scire Fac ' the Defendant appears and demurs to the Scire Facias and there is an Award of Execution and thereupon a Writ of Error is brought in the Exchequer Chamber and the Judgment was affirmed Then a Writ of Error is brought in Parliament and the General Error assigned And here it was argued on the behalf of the Plaintiff in the Writ of Error that this Action did not lye against him because it was brought against him for that which he did as a Judge and so it appeared on the Record according to 12 Rep. 25. that the Rule seems the same for one sort of Judge as well as for another that this Person was lawfully made a Governour and so had all the Powers of a Governour that this was a Commitment only till he found Security tho' not so Expressed that this is not counsable here in Westminster-hall that he was only censurable by the King that the Charge is sufficient in that Sir J. W. had not taken the Oaths that male arbitrarie executus fuit is Charge enough to warrant a Commitment that this was a Charge before a Councel of State and there need not be all the Matters precisely alledged to justifie their Acts and by the same reason Actions may lye against the Privy Counsellors here and enforce them to set forth every particular which would be of dangerous Consequence the Plea might have been much shorter as only that he was committed by a Counsel of State and the addition of the other Matters shall not hurt and that the Charge was upon Oath shall be intended no Presumption shall be that the Supream Magistracy there did irregularly 't is a power incident to every Council of State to be able to commit This action cannot lye because the Fact is not triable here the Laws there may be different from ours Besides no Action lies unlefs 't were a malicious Commitment as well as causeless and that no Man will pretend that an Action can lye against the chief Governour or Lieutenant of Ireland or Scotland and by the same reason it ought not in this Case he had a power to make Judges and therefore he was more than a Judge and they have confessed all this Matter by the Demurrer The Statute of Car. 1. which restrains the power of our Councel of State supposes that they could Commit that in case of Crimes there they are punishable in that place and in Sir Ellis Ashburnham's Case there was a Remanding to be tried there and if so it can't be examinable here and if not this Action will not lye And further that what was done here was done in a Court for so is a Councel of State to receive Complaints against State Delinquents and to direct their Trials in proper Courts afterwards that there was never such an Action as this maintain'd and if it should it would be impossible for a Governour to defend himself First For that all the Records and Evidences are there 2. The Laws there differ from what they are here and Governments would be very weak and the Persons intrusted with them very uneasie if they are subject to be charged with Actions here for what they do in those Countries and therefore 't was prayed that the Judgment should be reversed On the other side 't was argued for the Plaintiff in the Original Action That this Action did lye and the Judgment on 't was legal That supposing the Fact done in England the Plea of such Authority so executed at Plymouth or Portsmouth or the like had been ill for that Liberty of Person by our Law is so sacred that every Restraint of it must be justified by some lawful Authority and that Authority must be expresly pursued That here was no Authority to commit for that must be either as a Court of Record or as Justices of Peace Constable or other Officer constituted for that purpose that the Letters Patents are the only Justification insisted on and that gives none 't is true the power of Committing is incident to the Office of a Court here 's only the Government of the Place committed to Sir Richard Dutton with a power to erect Courts and appoint Officers but none to himself He in Person is only authorized to manage and order the Affairs and the Law of England takes no notice of such an Officer or his Authority and therefore a Court of Law can take notice of it no further or otherwise then as it doth appear in pleading The Councel is not constituted a Court they are by the Letters Patents only to advise and assist the Governour and the Governour hath no power to commit or punish but to form and establish Courts to do so which imports the direct contrary that he had no such power The Ends of appointing the Councel as mentioned in the Letters Patents are quite different viz. to aid the Regent by their Advice not to act as of themselves and if neither the Governour of himself nor the Councel of it self had such a power neither can both together have it A Court of Justice is not to be intended unless the same be specially shewn Excepting the Case of the common known general Courts of Justice in Westminster-hall which are immemorial if any thing be justified by the Authority of other Courts the same must be precisely alledged and how their Commencement was either by Custom or Letters Patents Here it appears by the Plea it self that they had Justices of Oyer and Terminer appointed It doth not appear that he or the Councel were Judges of things of this kind Besides when a Councel is constituted as here was Twelve by Name that must be the Majority as is the Dean and Chapter of Femes Case Davis's Rep. 47. and that 's Seven at least which are not in this Case There must be a Majority unless the Erection did allow of a less Number The practise of the Courts of Westminster-hall do not contradict this for there 't is a Court whether more or less and so
person As to the Objection from Appleford's Case Sid. 71. there that Writ was fully answered and they could not Examine into the truth and falsity of that Answer but must leave the party to his Action and it doth not thence follow That in an Action there 's no remedy But the strongest Objection is that in pleading a Deprivation you need not shew the Cause and it must be taken sor just and good as Moore 781. Jones 393. Moore 228. 2 Roll's Abridg. 219. 9 Edw. 4.25 that need only shew by whom All these stand upon the same foundation they were by Authority Ecclesiastical and must stand till Repealed and even those Cases of the High Commission Court they were by the course of the Ecclesiastical Law which was saved to them by the Proviso in 1 Eliz. and therefore shall be intended so till the contrary appear and even there 't was debito modo privatus which implies all due requisites but here the whole is disclosed upon a special Verdict 't is not found here that he was duly deprived but that he was deprived after such a manner which if it appears to have been without Authority must be null As to Ley's Opinion in Davis 47. that a Sentence of Deprivation in case of a Donative by an Ordinary was effectual in Law till Reversed that 's not Law for 't was all coram non judice Bro. Praemunire 21. Nat. Br. 42. the Ordinary cannot visit a Benefice Donative Then they Object That this is an Elemosinary interest and the Rector took it under those terms of subjection to such a Visitor but that is the Question what those terms are and the consequences of such an Opinion may be dangerous to the Universities those Nurseries of Learning and good Manners 't is to make them too precarious and dependent upon will And as to the pretence that the Land was the Founders and he might dispose of it at pleasure it was answered that before the Gift the Lands and the Profits and the Ownership were all subject to the Common-Law and the Owner could not give such a Power as is pretended no more than he could oblige all differences about his Estate to be finally determined by a particular person and his Heirs or Successors no Absolute Power can be fixed in this Nation by Custom but rather then the same shall be allowed the Custom shall be void 1 Inst 14. Davis 32. 2 Roll's Abridg. 265. Copyholds were Anciently at mere will and pleasure but the Lord is now obliged to and by certain Rules by our Law the Power of Parents over Children is qualified and restrained 't is no Argument to say that the Visitor comes in loco or vice fundatoris for the Alienation and the Statutes did oblige even himself and though perhaps if no Statutes had been made his Visitatorial Power had been much larger yet since 't is limitted to once in five Years and his Acts to be with others consent 't is as much as if he had given the Colledge a priviledge of exemption by Words Express from any Visitation at all other times and in all other manners than those which are mentioned then was Cited the Case of Terry and Huntington in Scaccar ' Trin. 20 Car. II. in Hardres's Rep. 480. before Sir Matthew Hale Trover for Goods seized by Warrant of the Commissioners of Excise the Query was when they adjudged low Wines to be strong Wines perfectly made upon 12 Car. II. cap. 23. whether it might be drawn in Question again by an Action in Westminster-Hall and held it might though they were Judges and though the Statute gave an Appeal and the reasons given there seem to reach this Case because they had a stinted limitted Jurisdiction and that implies a Negative viz. that they shall not proceed at all in any other Cases and that special Jurisdictions might be and frequently were circumscribed 1. with respect to place as a Leet or a Corporation Court 2. with respect to persons as in the Case of the Marshalsea 3. with respect to the subject matter of their Jurisdiction And if Judgment be given in another place or upon other persons or about other matters that all was void and coram non judice and though 't was objected that strong Wines were within their Jurisdiction and that 't was only a mistake in their Judgment yet it appearing upon the special Verdict that they were low Wines the Action was held maintainable this is so plain it needs no Application Then it was argued that this Sentence was void 1. because there was no Authority to visit at this time there having been a Visitation by the Commissary within five Years before that no words in the Statute make him a Visitor generally but only secund ' stat ' i.e. upon request or without request a quinquennio in quinquenium Semel now here 's no request found then the Act of Dr. Masters as Commissary is an exercise of the Visitor's Office Colmer's Appeal was to the Bishop as Visitor Semel implies a negation of having it more frequent according to Grammar it signifies once and not often er or once for all If Semel comes alone without any other Particle then 't is but once and if with another as ne Semel 't is not once or never and the liceat Semel can have no other Construction it can't mean once at the least as was argued below especially as opposed to request and no Argument can be drawn from the necessity of frequent Visitations for that Evils are not to be presumed and over inferior Members there 's a Power in the Rector and four Seniors now Dr. Masters was not requested by the Colledge nay they protest against it in some Degree i. e. so far as relates to Colmer's restitution the Oath of a Scholar being against Appeals and the Oaths and the Contents of them are to be deemed part of their Constitution But supposing that Business might be examined as a thing proper for Consideration when an inquiry is made into the State of the College and the admission continuance and removal of the Members is certainly one Article of such inquiry yet that must be done in Visitation and as Visitor for there 's no other Power found in the serdict but that 2. Admitting that no Action of Dr. Masters to be Visitation yet this Sentence is void because it held above three days and the Statutes say after three days it shall be taken pro terminat ' dissolut ' On the 16. of June he comes with intention to visit doth an Act proper to his Office and Business examines the Summoner about the Citation if he had come and only examined and made no Decree it had been a Visitation and either 't is a quinquennial one of it self or it is a Commencement of one and either one way or other it makes the Deprivation void 't is afterwards entred as a Visitatorial Act Eundem actum pro parte hujusmodi negotii Visitationis
meerly upon his Suit If the Person had been taken upon this Capias he had been the Plaintiff's prisoner and if he Escapes the Plaintiff had an Action for it Yelv. 19. and the supposed Forfeiture is only for his Interest 3 Cro. 909. And by this practise the King's Prerogative is to assist one Subject to deceive another By the Law a Judgment is preferrable to a Bond and binds the Land which a Bond doth not till Judgment upon it now here the first is to be postponed by reason of the King 's supposed Prerogative which is only a Right in the King for the use of the Party to have the Profits 2 Rolls Abridg. 808. vide Stamford 57. 1 Inst 30. Hardres 101 176. 1 Inst 202. Latch 43. That the Elegit hath Relation to the Judgment and so becomes Prior to the King's Title like the Relation of a Bargain and Sale to an Inrolment and as a strong Argument for it the words in the Writ of Elegit were repeated and enforced quo die Jud ' reddit ' fuit which shewed a relation to that day and consequently did affect the Lands at a time when the King had no Interest in it On the other side it was argued with the Judgment That this was the common Practise of the Court of Exchequer in this Case that the Course of a Court is the Law of that Court and to be taken notice of by all other Courts that 't is time out of mind and consequently of equal duration with the Common Law and always deemed to be parcel thereof that the Records and Experience of the ancient Clerks were both concurring to prove it the common Usage in the Exchequer that when Lands are seized into the K's hands by virtue of an Outlawry and Inquisition it was never known that the King's hands were removed by force of an Elegit sued afterwards tho' upon a Judgment precedent that it hath been their constant practise to continue the pernancy of the Profits in the King notwithstanding such Elegit that 't would be of dangerous Consequence to alter the same by a new Opinion that 't is not so very material whether this practise be more reasonable then another but whether it be certain and known for if it be so 't is much better to have it continued then changed because of the Confusion which must follow by shaking the Rights and Possessions enjoyed under the former Practise That 't is not in many Cases so considerable what the Rule is as that it be fixed and understood and therefore no reason to alter it or at least not without the use of the Legislature for by the same colour that some Judges of Parts and Segacity shall think fit to swerve from their Predecessors others of less capacity may pretend to do the same and so nothing but uncertainty would ensue But besides this is not meerly a Course of the Court 't is also agreeable to the Rule and Reason of the Laws Baden hath no interest in the Land 'till he sues his Elegit whereas the King's Title to the Land was compleat by the Outlawry and Inquisition which was prior to the Elegit and a Judgment of it self doth not affect the Land till Election made a Judgment at Law is only an Award of the Court ascertaining of the Debt and declaring that the Plaintiff shall recover In it self it doth no more assect the Land then a Bond 't is true when the Suit is ended by a Judgment the Party may resort to an Elegit for his Execution if he thinks fit and can find any thing subject thereto At the Common Law before the Statute of Westminst 2. cap. 18. a Subject upon his Judgment for Debt or Damages could not have Execution by taking away the Possession of his Adversary's Land because that would hinder the Man's following of Husbandry and Tillage which then was reckoned beneficial to the Publick So is 2 Inst 394. and Sir William Herbert's Case 3 Rep. 11 12. nothing but a Levari or Fieri facias then by the Statute sit in Electione illius and Coke in his Comment on those words saith After the suing of an Elegit he can't have a Capias So that by him the suing out of the Writ is the determining of his Election 2 Inst. 395. Foster and Jackson's Case Hob. 57. Even the Elegit it self doth not when sued out immediately touch the Lands for if that the Chattels be sufficient to pay the Debt and it so appears to the Sheriff that thereby he may satisfie the Plaintiffs Demand then he ought not to extend the Land and this appears by the frame of the Writ as 't is in the Register 299. 2 Inst 395. which shews that no Title can be acquired to the Land till the same be Extended The Elegit cannot by Law have relation to the Time of the Judgment so as to avoid the King's Title for relation is only a Fiction and Fiction shall never bind or prejudice the King in his Right much less in his Prerogative and no Case can be shewn where a Relation shall conclude the King nor is it any Objection That this is a Prerogative for the Benefit of a Subject for in truth all the Prerogatives are for the Advantage and Good of the People or else they ought not to be allowed by the Law Besides Practise and Reason there 's express Authority in our Books for it as the Case of Masters versus Sir Herbert Whitfield 1657. Hardres 106. And if there were no Book for it the Practise is enough for the printing of a Case doth not alter or change the nature of it 't is as much Authority if it be not published as when it is so Masters recovered a Judgment against Sir Herbert Whitfield and after the Judgment Sir Herbert was outlawed at another Man's Suit and his Lands seized into the Protector 's hands and afterwards Masters took out an Elegit and the whole Court was of Opinion that the Lands being seized into the Protector 's hands before the Elegit was sued out there could not be an amoveas manus awarded altho' the Judgment was prior to the Outlawry this is the same with the Case at Bar and tho' it may be surmised That this was an Opinion vented in Evil Times yet 't is well known that excepting their Criminal Proceedings in those Times the Law flourished and the Judges were Men of Learning as Mr. Justice Twisden hath often affirmed upon the Bench. 'T was further urged That Prerogative was to be favoured that 't was a part of the Law 2 Inst 296. especially when 't was used as in this Case to help an honest Man to his Debt that confessing of Judgments was oftner practised by Fraud to cover Mens Estates then Outlawries were to defeat just Judgments That if this Judgment was just and honest 't was his own default not to sue an Elegit immediately Then were cited many Cases to prove the King's Prerogative as Fleetwood's Case
behalf of the Appellants That the half Blood ought to have but a half share That in the Case of Inheritances the whole Blood was preferred and that tho' such Rule could not govern intirely in this Case yet it shewed which ought to have the preference that the true Reason of Distribution was this The Law was to give in like manner as he might reasonably be supposed willing to have given his Estate in case he had made a Will and had not been surprised by a sudden Death that every Man was supposed to favour his next of Kin that the Statute of Distributions did the same thing and then that the whole Blood was nearer of Kin because did partake of both the Stocks from whence he came that the Relation or Kindred in this Case intirely came from the Parents that this was not an Alliance by his own Contract as Marriage or the like that the Inclination was supposed to arise to them from the Natural Love he bore to the Common Ancestors that such Inclination could never be supposed equal where the Party was only of the half Blood And much to this effect and many Arguments drawn from the Civil Law were urged in favour of the Appellant and several Presidents cited where it had been judged since the Statute for the half Blood to have but a half share by Sir Richard Lloyd On the other side it was argued That the half Blood is as near a Kin to the Intestate as the whole Blood and ought to have an equal Share of the Personal Estate with the whole Blood that the Party must be presumed equally inclined to each Parent that the Brother of the half Blood was as much a Brother as one of the whole that the whole Blood was preferrable in Descents but that was only upon account of a Maxim in the Law whereas here they are equally of Kin the whole Blood is no more a Brother than the half in the same Relation there can be no difference or degree it might as well be pretended to have a difference allowed upon the account of Seniority that Opinions and Practise had been with the Decrees that this hath been taken to be the Law in Westminster-hall Before the Statute 't was held that a Sister of the half Blood is in equal degree with the whole Brown versus Wood Allen's Rep. 36. and so cited in Smith's Case Mod. Rep. 209. So in the Case of Milborne and Milborne 30 March 1671. before the Lord Keeper Bridgman W. M. had by Will devised all his Lands in Trust to pay every Brother and Sister he had living 40 l. per Annum each and he had several Brothers and Sisters both of the half and whole Blood the Brothers of the whole Blood did oppose the payment of the 40 l. per Annum to those of the half Blood but 't was adjudged and decreed that they are equally entituled to the 40 l. per Annum a piece and enjoyed accordingly Farmer versus Lane and Nash in Chancery 26 Octob. 1677. declared and adjudged by the Lord Chancellor Nottingham That the half Blood are in equal degree of Kindred with the whole Blood and ought to have an equal Share of the Personal Estate The like was in the Case of Stapleton and the Lord Merion against the Lord Sherrard and his Lady in Chancery by Judge Windham 13 June 1683. the Case was thus Robert Stapleton had a Sister of the whole Blood and a Brother and Sister of the half Blood and died Intestate Administration was granted to his Wife the Lady Sherrard who claimed a Moiety of the Personal Estate by the Custom of the Province of York and a quarter of the other Moiety by force of the Act for Distribution of Intestates Estates and adjudged that the Wife should have only one Moiety and the other Moiety to be divided equally between the Brothers and Sisters both of the whole and half Blood This Cause was Reheard the Seventh of May 1685. by the Lord Guilford upon the Certificate of his Grace the Lord Archbishop to whom it was referred to certifie the Custom of the Province of York who certified that the Wife shall have only a Moiety and the other Moiety shall be divided amongst the next of Kindred and adjudged that the half Blood shall have an equal Share with the whole and so the former Decree was confirmed The same was adjudged by Mr. Justice Charlton June 30. 1685. in the Case of Pullen and his Wife against Serjeant in the Court of Chancery The like was amongst other things declar'd and decreed by the Lord Jessryes Febr. 19. 1686. in the Case of the late Lord Winchelsea against Noraliff and Wentworth upon which Hearing were present and assisting the then Lord Chief Baron Atkyns and Mr. Justice Lutwich and so was it Nov. 20. 1689. between Stephens and Throgmorton in Chancery It hath likewise been held so in the Ecclesiastical Court and accordingly adjudged by Sir Richard Raynes upon Solemn Argument by the most eminent Counsel both of the Civil and Common Law in the Case of James Storey Febr. 26. 1685. and in the Case of George Hawles by the same Judge upon June 1. 1687. Then it was urged That the Statute of Jac. 2. for reviving and continuance of several Acts of Parliament therein mentioned proves this for 't is enacted That if after the Death of the Father any of his Children shall die intestate without Wife or Children in the life time of the Mother every Brother and Sister and the Representatives of them shall have an equal share and that a Brother of the half Blood is a Brother to the Intestate as well as a Brother of the whole Blood and therefore ought to have a share and an equal share with the rest And upon consideration of all those Presidents and there being no Practise against it except that of Sir Richard Lloyd's it was prayed that the Decree might be confirmed and it was confirmed Lee Warner Versus William North. APpeal from a Decree of the Lord Chancellor which over-ruled the Exceptions taken by the Appellant to a Decree made by Commissioners for Charitable Uses concerning a Gift by Bishop Warner's Will and the same was received and the Parties ordered to answer And each side being heard by their Counsel the Decree was affirmed Vide the Statutes concerning Charitable Uses and the Delegates and query how they differ And whether an Appeal doth not lye upon a Sentence by Delegates as well as on a Decree of Chancery upon a Decree of Commissioners for Charitable Uses Briggs versus Clarke WRit of Error on a Judgment in B. R. affirmed in the Exchequer Chamber upon a Verdict in Debt for the Escape of one Cook and none appearing for the Plaintiff in the Writ of Error the Judgment was affirmed with the increase of Forty pounds in Costs Vide the Case of Ellison and Warner Mich. 18 Car. 2. B. R. 2 Keeble 91. Whether a Writ of Error lyes in Parliament
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
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
CASES IN PARLIAMENT Resolved and Adjudged UPON Petitions and Writs of Error Quicquid sum Ego quamvis Infra Lucili censum ingeniumque tamen me Cum Magnis vixisse invita fatebitur usque Invida Horat. LONDON Printed for A. and J. Churchill at the Black Swan in Pater-noster-Row MDCXCVIII TO THE READER NO Collection of Cases adjudged in Parliament having been yet published a Preface seems necessary to bespeak the Reception of that which is now presented to the World To commend or excuse the Collector will not perhaps be a method to introduce it most to advantage what may be spoken in favour of his diligence or capacity will be censured vain and if any excuse be offered for his inability to have done it better some will be ready to take him at his word and think the Performance comes from a careless or unskilful Hand Whatever the Author is there needs no Apology to be made for the nature or design of the Work it self for the Subject Matter will be useful and entertaining to all Ranks of English Men to whom Books are so that is to all such as understand and love Literature Here is our Municipal Law and the reason of it Equity and the Law of Nations interspersed here is the manner of arguing and the language of the Bar briefly toucht here are the Forms of Proceedings sometimes mentioned but then again those Forms are superseded by the Original and Eternal Rules of Justice By the Debates and Arguments here reported you may be acquainted in some measure with the Rights of the Peers and their incapacity to alien such their Rights with the nature of Slander and some Rules concerning it the Course of Equity in respect of Penalties and Costs The Law of Average in the Case of Partial Losses at Sea the Circumstances upon which Relief may be had in Equity against hard or unreasonable Agreements the Construction of Wills to charitable Uses where the Estate intended is greater in value then the particular Bequests amounts unto the Power of a Council of State to commit with variety of Matter concerning Pleading and the Plantations belonging to England and the Priviledges and Birthrights of the English Subject by the Common Law and how far that Law extends The nature of Colledges Hospitals and other Elemosynary Foundations and the Authority and Power of Visitors and the Methods of their Proceedings the Court of Chivalry or Honour the extent and boundaries of its Jurisdiction before whom held and when and in what Cases a Prohibition lyes to it the power of Lords of Copyhold Mannors to refuse Petitions for the Reversal of Recoveries in their Courts and the Judgment of Equity upon such occasions the right of Dower and the efficacy of a Term attending the Inheritance to prevent its enjoyment and the opinion of Equity thereupon The Preference of an Outlawry upon mesne Process to a Judgment not extended and the practise and reason of the practise of the Court of Exchequer in that case the Consideration which a Court of Equity ought to have of Bonds Bills or Promises made or given upon Condition or Consideration of promoting and procuring Matches The dependency which Ireland hath upon England and her subordination to it and the Authority of the House of Peers in This over the Proceedings in the Chancery of That Kingdom the opinion of Equity upon Conditional Limitations and what will be a Performance of such Conditions and to whom the Profits shall go during the intermediate time c. The qualification requisite in a Presentee to a Benefice and the power of the Ordinary to refuse for defect of Knowledge and how that defect is to be tried the Construction of Law upon a Deed leading the Uses of a Fine of the Wives Land to the Heirs of the Husband's Body the Husband dying afterwards before the Wife the right of the half Blood in the distribution of an Intestates Estate and unto what Share the right of nominating to the Office of chief Clerk for inrolling of Pleas in B.R. and to whom it belongs the nature of a Bill of Exceptions and the Proceedings thereupon and in what Cases the same may be refused and if any Authority in the Lords over the Judges in case of such refusal The Punishment of Treason by the English Laws and the Form of Judgments in that case the nature of contingent Limitations after a Fee and if they may be allowed upon Contingencies to happen at any time after the decease of Persons then in being the manner of declaring the Uses of a Fine and by what Deed or Writing the nature of Wills and of the revocations of them and if a Will whereof the Contents are unknown may revoke a former the efficacy of the acts of one that is Non compos mentis and if and how far void what Deeds altering the Estate of a Testator shall revoke a solemn Will The nature of the Office of a Clerk of the Peace and by whom grantable and for what Interest and how removeable the Prerogative of Presenting to Benefices made void by Promotion and if such Prerogative be served or fulfilled by a Commendam and whether it can operate upon a new created Parish or Rectory the formal reason and essence of Treason and wherein it consists and what is necessary to be alledged in Indictments for that Offence the right of Tythes for Herbage or Agistment of Cattle grazed and fed for Sale tho' formerly used to the Plough The Exposition of a Will of a Native of France and by what measures a Judgment ought to be made of the meaning of Phrases used by such Persons in that Language upon such an occasion the Construction of the word Share in a Will concerning the New-River Water the force or validity of a Grant or Assignment of Land in which the Grantor had a very long term to hold from and after the Grantor's decease the Title of Knight if and how part of the Name and what Allegations in a Count in a Quare Impedit are not needful to be answered to and what may be traversed and what Grants of the Crown shall be good notwithstanding some and what Misrecitals These and many other Particulars worthy of most Mens notice are here debated and it may reasonably be supposed that none will be Enemies to the Design and Publication but those who mislike the small Remainders we have left us of the Aristocratical part of our Government the Gentlemen who do so must be unacquainted with the Grecian and Roman Story as well as with our own or else have read it but superficially for even the most perfect of the Grecian Common-wealths were somewhat Aristocratical That which may be called such is Sparta which tho' it had some Laws we cannot account for yet during several Centuries it maintained its own Liberty and assisted its Neighbours to preserve theirs And notwithstanding some Men may think the contrary Democracy was not the only Favourite Model of the
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
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
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
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
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
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
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
Ordinary thought him able to take Orders and Preach in his Diocess therefore another must deem him able and sufficiently Learned tho' he knows the contrary to accept a Benefice in his Diocess 't is Absurd that upon a Presentation he is to be Examined but not refused tho' found inhabilis and this because he was in Orders and he could not be Presented unless in Orders and yet tho' in Orders if he be Presented he must be Examined but to what purpose passeth all understanding if his Priesthood or Orders presumes him to be qualified 'T is likewise to suppose Learning and Ability to be an inseparable quality That an ordinary Scholar can never become less so By the Old Law the Bishop had two Months time to Examine 2 Roll's Abr. 354. by Hob. 317. He hath a convenient time and by Can. 1 Jac. 1 cap. 95. the two Months is reduced to 28 Days And the Ordinary both in Conscience and by the Obligations which his very Order doth import is obliged to Judge for himself as well as to Examine the contrary is repugnant to his Office of a Judge to be forced or compelled to institute every Presentee fit or unfit Besides the Ordinary pro Tempore hath the particular care of all the Diocess and during a vacancy is to take care of supplying every particular Cure within his District then when he admits and institutes the very form of Words is Accipe curam meam tuam which renders it more Absurd that nolens volens he must transfer his Cure to a Man not able in his Judgment to execute it 'T is against the Rule of Law for that the Words of it are express articuli Cleri cap. 13. and this Cooke declares to be Affirmative of the Common-Law Item petitur quod personae Ecclesiast ' quas Dominus Rex ad beneficia presentet Ecclesiastica si Episcopus eas non Admittat ut puta propter defectum Scientiae vel aliam causam rationabilem non Subeant examinationem Laicar ' personar ' in casibus antedictis prout his temporibus attentetur de facto contra Canonitas sanctiones sed adeant Judicem Ecclesiasticum ad quem de jure pertinet pro Remedio prout justum fuerit consequendo respons ' de Idonietate persone presentate ad beneficium Ecclesiasticum pertinet Examinatio ad Judicem Ecclesiasticum ita est hactenus usitatum fiat in futurum Here is Idoneitas persone praesentate and the words of the Writ are quod permittat praesentare Idoneam personam And if the Presentee were not a fit person no such Writ can be maintained Then my Lord Coke in his Comment upon that Statute in 2 Inst 631 632. saith that there may be diverse Exceptions to Persons presented as Bastardy Villenage Outlawry Excommunication Laity Under age or Criminal and Lewd in his Conversation or inability to discharge his Pastoral duty as if he be Unlearned and the Examination of the Ability and Sufficiency of the Person presented belongs to the Bishop who is the Ecclesiastical Judge and not a Minister and may and ought to refuse the Person presented if he be not Idonea persona And if the cause of refusal be default of Learning Heresie or the like belonging to the knowledge of the Ecclesiastical Law then he must give notice to the Patron so that default of Learning is by him who was no great friend to the Jurisdiction of Court Christian agreed to be Subject to the Ecclesiastical inquiry and then in Pleading he must show the cause of refusal and the Party may deny the same and then the Court shall write to the Metropolitan or to the Guardian of the Spiritualities sede vacante to certifie if the cause be thus and his Certificate is conclusive if the Presentee be Dead it shall be tried by a Jury 15 Hen. 7.7 the Bishop is declared to be a Judge and not a Minister in this case of Examining a Man's Ability he is a Judge in this case as he is in case of a Resignation for an Ordinary may refuse it and without his acceptance 't is no Resignation and must be so Pleaded Noy 147. Bro. tit Bar. 81. 2. Cro. 197. and so agreed even in the Case of Leach and Thompson in Reg. 53. is a Consultation upon this very surmise that inability ad Retinend ' beneficium propter Crimina belongs to Court Christian and that the Ordinary is Judge thereof which is much stronger than our case because there was a Freehold vested by induction But this hath been agreed by that Court from whose Judgment the present Appeal is that a refusal may be upon insufficiency appearing upon an Examination upon a new Presentation and constant practise proves it The greater if any doubt is upon the Plea if good it says that he was Examined and upon Examination was found incapable The Exception taken to it is that it doth not set forth the particular parts of Learning in which he is deficient that the Temporal Court may Judge if it were a sufficient cause of refusal which is to change and turn it ad aliud examen that Learning is requisite for a Presentee to be Benefic'd they would not have the Ordinary to determine what Qualifications a person ought to have in order to take a Benefice but the Judges in Westminster-Hall They can have no colour for this pretence but that the Ordinary may have refused when competently Learned in their Opinions and they cannot say that the Law hath settled any Rules or measures of Learning requisite Some say Latin is not requisite since the Liturgy is now in English and therefore they would Judge of it others say the less Learning the better Preacher if can Read and Pray and Preach and be indued with Spiritual Gifts and so is their Replication others say that the Ordinary's Judgment must be submitted to the Judge's Opinion of the proportion of Knowledge necessary then they have a Popular pretence that this will give the Bishops too great a Power of refusal and so restrain Patrons from their privilege of Presenting and thereby make themselves Collators But there 's no danger of that because there must be notice and a convenient time for another Presentation and the danger of this restraint is as much the other way for then the Temporal Courts are to do it and it s much at one to the Patron which is to declare the inability the Ordinary or the Temporal Courts On both sides it must be agreed that default of Literature is a good and just cause of refusal the Question is who shall judge of it it is said minus Sufficiens in Literatura ca ratione inhabilis i.e. it being indefinite in omni Literatura necessaria But they Cavil at the Word minus sufficiens as if that agreed him somewhat Learned and forget that 't is said ac perinde incapax And minus sufficiens is in Lawyer 's Latin totally insufficient and so 't is used in all
Demurrers to Declarations Pleas Replications quod Narr ' vel placit ' pred' Materia in eodem content ' minus sufficient ' in Lege existunt ad quam vel quod the party necesse non habet nec per Legem terrae Tenetur aliquo modo respondere i. e. 't is good for nothing 't is insufficient the Court in their Judgments upon the insufficiency of the Plea do always say quia minus sufficien ' existit Then it was argued That it is a good Plea to all intents and purposes from the nature of the thing and the impossibility of making it more particular and certain 2. From the sufficiency of it to all intents and purposes of Tryal 3. From the Precedents and those of Antiquity which warrant this form of pleading 4. From the mischiefs and inconveniencies which must follow and ensue if a greater particularity were required 1. From the nature of the thing and the impossibility of making it more particular and certain if the Bishop were bound to set down in particular and at large every point of Learning wherein this poor wretch was and is deficient 't would be a Pleading like to a justification of an Action done by a private Person and not like to the Pleading of the Act of a Judge which this is 't would be so large as to render it impossible for to joyn an Issue thereupon and then they would have demurred with a Cause because multiplex duplex incertum perplex ' and the rest of our usual Adjectives upon those occasions the Assignment of several and many particulars would have been double and good cause of Exception because one particular might be found true and another not and the Assignment of one particular would have been adjudged insufficient for then they would have said that Learning is of a Complex nature and if a Man should fail in answering any one particular tho' common Question yet he might be qualified in general And therefore the Assignment of one defect tho' never so gross shall not make a Clerk minime capax and therefore no good Plea For if a particular be Assigned that would not prove a general Defect of knowledge according to the words of the Law which is the only thing that could make him incapable ad habend ' beneficium cum Curia Animar ' and therefore the Bishop as a Judge returns him in literatura insufficiens ea de causa minime capax and the special instances would have been Evidences upon a new Tryal or Examination before the Arch-Bishop Now this cause of refusal distinguishes the case from all others that they can insist upon all other inabilities of a Clerk depend upon one single point as Bastardy Villenage Outlawry Excommunication Lay-man Under-age or Ecclesiastical Infancy So all Crimes must have their foundation from a particular Act as Adultery Perjury Simony c. In these it shall not be enough to Plead that he was inhabilis generally or criminosus generally ideo inhabilis because no body can be criminosus but he that hath done some particular Crime and that is to have a several Tryal according to its respective nature if it be an Ecclesiastical Offence then there is a particular method of Tryal if a Temporal then another and so says Coke 2 Inst 632. and therefore a particularity is required there but here 't is all tryable by the same way viz. a new Examination before the Arch-Bishop Here the matter it self admits of no greater certainty for that 't is a general deficiency of Learning only which can make an incapacity of discharging the Pastoral Office it is a matter that must appear by a variety of Questions and cannot be proved by any one single instance whatsoever This is the true reason and difference why in several Cases general Pleading hath been denied and why in this Case it hath been always used and never excepted against Then it was argued That this Plea was sufficient to all the intents and purposes of Tryal and Determination By our Law that Plea is sufficiently certain which may be Tryed without inveigling either Court or Jury that is it must be intelligible and plain and this surely is plain enough the Ordinary had a Power to refuse him for want of Learning sufficient to enable him to discharge his Pastoral Office he Pleads that he was Minus sufficien ' in Literatura this is to be tried by the Certificate of the Arch-Bishop or the Guardian of the Spiritualities during a vacancy and that is evident by 39 Edw. 3.1 2. 40 Edw. 3.25 and from Speccot's Case 5 Rep. 7. There never was an Objection made to the uncertainty of any Plea if the Matter could be fairly reduced to an Issue for a Trial now here the Court might certainly have written to the Archbishop to have known utrum this Creature were minus sufficiens in Literatura ea Ratione inhabilis and the actus Curiae of the Bishop would have been Evidence before his Grace and he might have certified that he was or that he was not sufficiently Learned No say they the Court must not write to the Archbishop to know that till it be said in what Points of Learning he was defective and if these shall be thought material Parts of Learning for a Rector then they must write to know if Hodder had them or not but if they think them not material for the Qualifications of a Pastor they must not write at all This is the true English of the Argument But it was argued That the Temporal Court is only to judge that the Cause of Refusal if true was a sufficient Cause and the Books are that a general default of Learning is a good Cause and this the Archbishop is to try And this is certain enough for to make an Issue or Question proper for that Trial. Besides A greater Latitude and Generality hath of late been allowed in pleading of Proceedings in Courts and before Judges then formerly In ancient days if a Man pleaded a Judgment in a Court in Westminster-hall they set forth the whole then they came to allow of a taliter fuit processum and an Abridgment of the Proceedings then came a Recuperavit only And this was because that all Proceedings in the Superiour Courts were to be presumed regular till the contrary were shewn But this was denied a long while to Inferiour Courts because these were tied to stricter forms and therefore were still forced to set forth the whole then they allowed a taliter fuit processum for them provided still they were Courts of Record But now they allow it in pleading of a Justification upon a Recovery in an Hundred Court because the whole must be given in Evidence so that such a formal Nicety in Pleading is not generally required now as was formerly Besides In Matters triable by the Spiritual Law there is always less particularity required in Pleading then in others triable in Courts Temporal as in Bastardy Divorce
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
whom of right it doth belong to grant that Office whensoever it shall be void It was then further insisted on and proved That there are in the nature of Clerks three considerable Officers of the Court of King's Bench The first and chiefest is the Clerk of the Crown called sometimes Coronator Attornat ' Domini Regis c. his Business is to draw all Indictments Informations c. in Pleas of the Crown This Officer being the chief Clerk in Court is always made by Patent under the Great Seal The second Officer is this the Prothonotary or chief Clerk for inrolling Pleas between Party and Party in Civil Matters He and his Under-Clerks do inroll all Declarations Pleadings c. in Civil Causes especially where the Proceedings are by Bill This Clerk files in his Office all Bills Declarations c. and all the Writs of this Court in Civil Matters are made by him and his Under-Clerks and tested by the Chief Justice And he hath the custody of all Returns of Elegits Executions Scire Facias's and the filing of all Villes every of which are in the Eye and Judgment of the Law in the hands of the Chief Justice whose Clerk this Officer is The third is the Custos Brevium who keeps all the Rolls and Records of Judgments in this Court which are also said to be in the custody of the Chief Justice And this Office when void is in his Gift and Disposal It was further shewn on the behalf of the Defendants That in the Statute of Edw. 6. against the Sale of Offices there is a Salvo to the two Chief Justices and Judges of Assize to dispose of the Offices in their disposition as they used formerly And ever since that Statute these two Offices of chief Clerk to inroll the Pleas c. and the Custos Brevium have without controul been disposed by the Chief Justice of the Court of King's Bench. And it is also observed That in the Grant of this Office to Mr. Bridgman the Plaintiff it is recited that Henly and Wightwick were debito modo admitted to this Office and yet they never had any Grant from the Crown nor any other Grant except that from the Chief Justice before mentioned Then to prove the Defendant's Title to the Office the Grant of the now Chief Justice to them for their Lives was produced and read and proved that they were admitted and sworn To answer all this Evidence there was produced the Copy of an Act of Parliament which was made in 15 Edw. 3. to this effect It is consented that if any of the Offices aforesaid which are other great Offices mentioned in the Act or the Controller or chief Clerk in the Common Bench or King's Bench by Death or other Case be ousted of their Office the King with the consent of the great Men c. shall put another fit person in such Office From whence the Plaintiff's Counsel would have inferred That the King had a right to grant this Office and that this Act was declaratory of such his Right and that all the Grants from the Chief Justices ever since that Act were but Usurpations on the Crown and that no Usage of granting it by the Chief Justices could prevail against the King's Right To this it was replied That the Act was repealed as did appear by the Record it self as well as by their own Copy produced And for a further Answer 't was said That the Office in question was not the Office mentioned in that Act for that Act mentions the chief Clerk of the King's Bench which is the Clerk of the Crown and so called in the 2 H. 4. the Statute against Extortion and he is in reality the chief Clerk in that Court and hath precedency of this Officer both in Court and elsewhere And that this Officer is not called chief Clerk in the King's Bench altho' he is the chief for inrolling of Pleas Civil in that Court And the constant Usage explains the meaning of that Act. And that the Officer called chief Clerk was meant to be the Clerk of the Crown for that that Office hath been always granted by Letters Patents according to that Act And the Office in question was never enjoyed one day by virtue of a Grant from the Crown The Defendants did further insist That it was a Scandalous Imputation upon all those chief Justices who were Persons of Probity and Virtue and had clear Reputations to surmise that they imposed and usurped upon the Crown as they must all have done if the right of granting this Place be in the King And Sir Robert Heath that was the King's Attorney took a Grant of the Office in question from the Chief Justice and upon his Admittance the right of the Chief Justice to grant it is affirmed upon Record Then all this Evidence on both sides being given and the same being strong on the Defendants behalf the Court proposed to the Plaintiff's Counsel to be Nonsuit which they would not but prayed the Court to direct the Jury some of them saying that they would take another Course And then the Court did briefly sum up the same and particularly the Evidence of the Act 15 Edw. 3. and what was urged from it by the Plaintiff and the Answers made thereto and left the Matter to the Jury upon the whole The Jury withdrew and after some time gave a Verdict for the Defendants Upon this Verdict the Counsel for the Plaintiff prayed leave to bring in a Bill of Exceptions and produced in Court and tendred to the three Judges to be sealed a Parchment Writing in form of such a Bill in which after a Recital of the Declaration and Issue in the Cause 't is alledged That the Plaintiff's Counsel produced in Evidence the Grant of the Office to the Plaintiff and that they shewed to the Court and Jury that the Office is of the Grant of the Crown And that to make out the Right of King Charles the Second to grant this Office to the Plaintiff they gave in Evidence the 15 Edw. 3. which in the Bill is set out at large and is in Substance as is before set forth And 't is further alledged in the Bill That the Justices refused to allow admit and receive the Allegations and Matters given in Evidence as sufficient to prove the Plaintiff's Title to this Office by reason whereof the Jury found That the Defendant did not disseize the Plaintiff and prays that the Justices would put their Seals to it according to the Statute of Westminster 2. cap. 31. The Justices upon reading this Bill did refuse to Seal it 1. Because 't is asserted therein That the Plaintiff's Counsel did show that this Office was of the Gift and Grant of the King whensoever it should be void whereas there was no such Evidence to show any such Right in the King offered or pretended to besides the Patent in question and the Act of Edw. 3. 2. That the Judges refused to allow admit and
receive the Allegations and Matters given in Evidence for the Plaintiff as sufficient to maintain his Title whereas they were given in Evidence and considered and if it be meant as a sufficient Evidence to controul and over-rule all other that doth not belong to the Court in Trials to determine unless referred to them upon demurrer to Evidence but is the proper business of the Jury and if the Party be aggrieved the Remedy is an Attaint Nor can it be pretended that the Defendants Evidence was admitted to over-rule the Record produced because no Objection was made to the Defendants Evidence at the Trial and the same was all given before the Record of 15 Ed. 3. was produced and consequently the Jury must consider the force of it for Evidence on both sides being given by the Law of England the Decision of the Right belongs to the Jury and the Act of Edw. 3. being repealed 't is no Matter of Law but the most which could be made of it was that it was Evidence which must be left to the Jury together with the Defendants Evidence But no Bill of Exception will lye in such a Case by the Statute when the Evidence given is admitted as Evidence and left to a Jury and where no Opposition was made to the Defendants Evidence as here in this Case and therefore in this Case a Bill of Exception could not be warrantable because the Plaintiff's Evidence was not refused or over-ruled nor was the Defendant's Evidence fit to be rejected or so much as opposed by the Plaintiff And as to the Allegations made by the Counsel and not proved those never could be an Exception And for these and other Reasons the Judges refused to Seal their Bill Upon this a Writ of Error is brought and a Petition was exhibited to the Lords Spiritual and Temporal in Parliament assembled in the Name of the Lady Isabella Dutchess of Grafton and William Bridgman her Trustee showing that King Charles the Second granted the Office in question to W. B. for the Lives of Henry Earl of Arlington Henry Duke of Grafton and of the Petitioner the Lady Isabella in Trust for the Duke his Executors and Administrators to commence after the Death of Sir Robert Henly that upon the death of Sir Robert Henly the Petitioner by virtue of the said Grant was well intituled to the said Office but was interrupted in receiving the Profits by Rowland Holt Esq Brother to the Lord Chief Justice Holt and by Edward Coleman Gent. who pretended to be admitted thereto by some Grant from the Chief Justice that thereupon an Assize was brought for the said Office which came to Trial and the Petitioners Counsel insisted upon an Act of Parliament proving the King to have the Right of granting the said Office which the Judges would not admit to be sufficient to prove the King's Right to grant the same That the Petitioners Counsel did thereupon pray the benefit of a Bill therein to be allowed and sealed by the Judges according to Law And the Petitioner's Counsel relying upon the said Act of Parliament as sufficient proof of the King 's Right duly tendred a Bill of Exceptions before Judgment in the Assize which the Judges upon the Trial said they would Seal yet when tendred to them in Court before Judgment would not Seal the same Thereupon Judgment was entred against the Petitioners Title in the Assize by default of the Judges not allowing and sealing the said Bill according to the Duty of their Office by Law whereby they are hindred from making the Matter of the said Bill part of the Record of the said Judgment now brought and depending before your Lordships upon a Writ of Error in Parliament for reversing the said Judgment in the Assize and so are precluded from having the full benefit of the Law by the said Writ of Error to examine reverse and annul the said Judgment Wherefore the Petitioners prayed that their Lordships would be pleased to order the said Judges or some of them to Seal the said Bill of Exceptions to the end the said Case might as by Law it ought come intirely before their Lordships for Judgment c. Upon reading this Petition 't was ordered that the Lord Chief Justice and the rest of the Judges of the Court of King's Bench should have Copies of the Petition and put in their Answer thereunto in Writing on ..... next At the Day appointed there was deliver'd an Answer in these or the like words The Answer of William Dolben William Gregory and Giles Eyre Knights three of their Majesties Justices assigned to hold Pleas in their Court of King's Bench at Westminster to the Petition of the most noble Isabella Dutchess of Grafton and William Bridgman exhibited by them to your Lordships THese Respondents by Protestation not owning or allowing any of the Matters of the Petition to be true as they are therein alledged and saving to themselves the benefit of all the several Statutes herein after mentioned and all the Right they have as Members of the Body of the Commons of England to defend themselves upon any Trial that may be brought against them for any thing done contrary to their Duty as Judges according to the due Course of the Common Law which Right they hold themselves obliged to insist upon in answer to the said Petition think themselves bound to shew and offer to your Lordships consideration That the Petition is a Complaint against them for refusing to Seal a pretended Bill of Exceptions contrary to a Statute in that behalf as the Petition pretends without setting forth the tenour of the said Statute or what that pretended Bill was whereas that Statute is the Statute of Westminster 2. cap. 31. and doth enact That if any impleaded before any Justices doth offer an Exception and pray the Justices to allow the same and they refuse so to do the Party offering the Exception is thereby to write it and pray the Justices to Seal it which they or one of them are thereby enjoyned to do So that if the pretended Bill was duly tendred to these Respondents and was such as they were bound to Seal these Respondents are answerable only for it by the Course of the Common Law in an Action to be brought on that Statute which ought to be tried by a Jury of Twelve honest and lawful Men of England by the Course of the Common Law and not in any other manner And the Respondents further shew and humbly offer to your Lordships consideration That the Petition is a Complaint in the nature of an Original Suit charging those Respondents with a Crime of a very high Nature in acting contrary to the Duty of their Office and so altogether improper for your Lordships Examination or Consideration not being any more triable by your Lordships then every Information or Action for breach of any Statute Law is all which Matters are by the Common Law and Justice of the Land of Common Right to be
Court. If such Bill be tendred and the Exceptions in it are truly stated then the Judges ought to set their Seal in testimony that such Exceptions were taken at the Trial But if the Bill contain Matters false or untruly stated or Matters wherein they were not over-ruled then they are not obliged to affix the Seal for that would be to command them to attest a falsity a Bill is not to draw the whole Matter into Examination again 't is only for a single point and the truth of it can never be doubted after the Bill is sealed for the adverse Party is concluded from averring the contrary or supplying an Omission in it This Bill was without Foundation the Plaintiff was not over-ruled in any one Point of Law 'T is true the Counsel desired the Opinion of the Court after all the Defendant's Evidence had been heard concerning their Record and the Judges did declare that they thought it did not extend to the Office in question but to the Clerk of the Crown who is the chief Clerk in Court and hath precedency and the Grant of that Office by the King both before and since that supposed Act proves that to be meant and not the Office in question which hath always been granted by the Chief Justice and this was afterwards left to the Jury Here was no cause for a Bill of Exceptions the Judges at the Counsels desire gave their Opinion upon the thing but did not over-rule them for that the Act being repealed could make no Point of Law but only be Evidence for the Jury to consider Besides this Act tho' repealed is inserted in the Bill as an Act in force And if an Act be set out and no repeal appears it must be understood to be in force and if the Bill had been sealed it must have been taken as in force and the Defendants could not here upon the Writ of Error have shewn the repeal which was in the 17 Edw. 3. and appeared so upon the Evidence from whence 't was inferred That this Bill was too artificial If any point of Law had arisen upon the whole Evidence and a particular point there was none the whole ought to have been inserted in the Bill or at least all that which concerned that Matter If this should be allowed 't would be in the power of any Counsel to destroy any Verdict as in case of a Title by Descent from Father to Son and a Will of the Father had been produced and proved at the Trial and a Bill had been sealed only shewing the Seisin and Descent the Son must prevail tho' he had no Title This is enough to shew that the Judges are not obliged nay are obliged not to Seal this Bill Then it was argued That the present Complaint is beneath the Honour and besides the Jurisdiction of the House of Peers that this was a Complaint of a Default in the Judges which cannot be tried in this place that MagnaCharta was made for them as well as for others that if they offend against any Rule of the Common Law or particular Statute whether in their Personal behaviour or as Judges they are triable only by their Peers that Peers are only such qui pari conditione lege vivunt that the Crown and Constitution of England had so far exalted their Lordships in their State and Condition that 't is beneath them to judge or try Commoners that all Powers and Priviledges in this Kingdom even the highest are circumscrib'd by the Law and have their limits That this is a Complaint of a great Crime in the Judges a Breach of their Oaths and with the insinuation of Partiality to one of themselves which if true incurs loss of their Offices and Forfeiture of their Estates by Fine and of their Liberty by Imprisonment and all this to the King besides Damages to the Party grieved and therefore it concerns them to have the benefit of the Law That this comes not regularly into the House 't is not any matter of Advice to the King nor of Priviledge nor of Contempt to this Court because the Matter complained of was before any Judgment below or any Jurisdiction could be attached here by pretence of the Writ of Error 'T is brought hither by way of Complaint for a supposed Miscarriage in Westminster-hall in a private Cause between Bridgman and Holt two Commoners It presumes the Lords to be proper Judges in the first Instance for the hearing and punishing of all Offences committed by the Judges and that in a Summary way upon a Petition and without that due Process of Law which is established under our Government Either this Refusal is punishable or not If not the Petition ought to be rejected If it be 't is either by the Common Law or by Act of Parliament but neither do warrant this Practise of Petitioning and the old Law is that which past Ages have approved and that by which Justice is to be administred and whatsoever is done by way of Judgment in a different manner than the Law allows is against that Law The proceeding in this manner is against the Consent of the Respondents for they have Pleaded to the Jurisdiction of this House as to this matter c. and therefore it differs from all Cases where the Parties concerned have Answered the Complaint and thereby submitted the same to an Examination and this will prevent the force of many presidents which may be Cited on this occasion Some Persons perhaps have from a confidence of Success or from a slavish Fear or private Policy forborn to Question the Power of their Superiors but the Judges must betray their Reputation and their Knowledge of the Laws if they should own a Jurisdiction which former times and their Predecessors were unacquainted with 'T is necessary to answer the pretence of a failure of Justice in case this method be Rejected and therefore it must be observed That our Law knows nothing of extraordinary means to redress a Mischief but that upon a defect of ordinary ones recourse is to be had to the Legislature and to that only either to explain and correct in reference to things past or to provide remedies for the future But here is a common easie means of relief if there had been occasion By the Statute of Westminster 2 cap. 31. In case the Judge refuses then a Writ to Command him which is to issue out of Chancery quod apponat sigillum suum and then a Writ to own or deny his Seal By 2 Inst 426. the party grieved by the denial may have a Writ upon the Statute Commanding the same to be done juxta formam Statuti Reg. 182. Fitch Natura brevium 21. and 11 Hen. 4.51 62 63. there 's the form of the Writ set out at large It recites a surmise of an Exception taken and over-ruled and it follows vobis precipimus quod si ita est tunc sigilla vestra apponatis Si ita 't is conditional if the Bill
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
cum aggravatione pene corporalis somewhat more than Death Then this being a Common Law Punishment and not prescribed by any Statute the knowledge of it must be fetcht from our Law-Books and from Presidents for the General Practise of the Realm is the Common Law 't is describ'd with an ipso vivente in Smith's Republica Anglic. p. 28. lat Edit pag. 245. Stamf. 182. en son view which is tantamount and Stamford wrote 2 Eliz. In Coke's 3 Inst 210. 't is ipsoque vivente comburentur Pulton de Pace Regni 224. and many other Books were cited to the same effect And 't was affirmed that there was no Book which recited the Judgment at large but had this Particular in it Several Books do in short put it That for Treason the Party shall be Drawn and Hanged and Quartered but those are only Hints of the Chief Parts not Recitals of the Judgment it self In the English Book of Judgments printed 1655. pag. 292. 't is mentioned particularly as the Kings Bench have adjudged it should be The Duke of Buckingham's was so 13 Hen. 8. Stow's Chronicle 513. shews that he was the Person Then 't was said they have been thus in every Age without interruption 'till 26 Car. 2. Humfrey Stafford's Case 1 H. 7.24 which was per consensum omnium Justiciariorum tho' quoted on the other side as shortly stated in the Year-Book yet on the Roll which hath been seen and perused 't is with an ipso vivente Plowden 387. and Rastal's Entries 645. the same Case is thus Coke's Ent. 699. is so likewise John Littleton in 43 Eliz. Coke's Ent. 422 423 and 366. is so In the Lord Stafford's Case 33 Car. 2. by the Direction of this House and with the Advice of all the Judges was the Judgment so given by the Earl of Nottingham then Lord High Steward In the Lord Preston's Case 't is so which was drawn by Advice of the then Attorney and Sollicitor the present Keeper and Chief Justice of the Common Pleas. As to the Objection That vivens prosternatur doth imply it and that 's enough It was answered That ipso vivente comburentur implies both but not e contra and all the Presidents shew the latter to be requisite And as to the Case of David Prince of Wales mentioned in Fleta there 's only a Relation of what was the Execution not of what was the Judgment And Coke 2 Inst 195. says That the Judgment was in Parliament and therefore the same can be no President to this purpose and any one that runs over Cotton's Records will find the Judgments in Parliament to be different as the Nature of the Case required No Argument can be drawn from the Acts of the Legislature to govern Judiciary Proceedings however John Hall's Case 1 Hen. 4. Cott. 401. is as now contended for Before the 1 Hen. 7. there were some Erroneous Attainders and the 29 Eliz. takes notice of them as so errneous The Judgments against Benson and Sir Andrew Helsey cited below are plainly erroneous they dispose of the Quarters which they ought not but leave the same to the King's pleasure Sir Andrew's President is a monstrous arbitrary Command by Writ to Commissioners of Oyer and Terminer ordering them to Examine him and to give Judgment in manner as in the Writ is directed that therefore is not to be justified and 't was before 25 Edw. 3. Henry Ropers 21 Rich. 2. doth dispose of the Quarters and hath other Errors in it and so have William Bathurst's and Henry South's which were in 3 Hen. 4. But from that time to 26 Car. 2. there 's none which do omit it The four Presidents at the Old Baily were against Popish Priests and what private politick Reasons or Commands might occasion the omission is unknown and Hampden was not Executed but his Judgment was upon a Confession and his Life saved the reason of which is also unknown So that there have been none Executed upon such Erroneous Judgments And that there are no more Presidents with the Omission is a good Argument that those many which have this Particular in them are good and legal the constant Current having been this way proves the same to be the Common Law And this is the most severe part of the Punishment to have his Bowels cut out while alive and therefore not to be omitted As to the Earl of Essex's Case in Moore and Owen's Case in Roll's Rep. the first is only a Report of the Case and the last a descant upon the Judgment but neither do pretend to recite the whole Judgment Then to pretend that this Judgment cannot be Executed is to arraign the Wisdom and Knowledge of all the Judges and Kings Counsel in all Reigns And Tradition saith that Harrison one of the Regicides did mount himself and give the Executioner a Box on the Ear after his Body was opened c. Then 't was argued That if it be a necessary part of the Judgment and be omitted it is a fatal Error and doth undoubtedly in all Cases give a good reason for the Reversal of such Judgment as in the Common Case of Debt where dampna are omitted in the Judgment tho' for the Advantage of the Defendant as is Beecher's Case and Yelv. 107. Besides if this be legal then all those Attainders in which this Particular is inserted must be illegal for 't is impossible that both the Judgments should be right for either those are more severe than they should be or this is more remiss To say that 't is discretionary is to give the Judges a power which they themselves have disclaimed and to Reverse this Reversal is to tell the Court of Kings Bench that they are not obliged to follow the General Practise of their Predecessors that they are obliged to no form in their Judgment for Treason that nothing but Death and being Drawn to it are essential and according to that Doctrine a Woman might receive the Judgment of Quartering and a Man might be Burnt and both according to Law But the Constitution of this Kingdom hath prescribed and fixed Rules and Forms which the Executive Power is obliged and bound to follow that as nothing can be made or construed to be an Offence at the Pleasure of the Court so no Judgment can be given for any known Offence at Pleasure But the Law either Statute or Common hath established what is an Offence and what is its Punishment and there is nothing of Arbitrary Power allowed in respect of either Wherefore upon the whole it was prayed that the Reversal might be affirmed and it was affirmed accordingly Sir Evan Lloyd Baronet and Dame Mary his Wife and Sidney Godolphin Esq and Susan his Wife Appellants Versus Sir Richard Carew Baronet an Infant the Son and Heir of Sir John Carew Baronet deceased Respondent APpeal from a Decree of Dismission in Chancery The Case was thus Rice Tannott died seized in Fee of several Lands in the several Counties of Salop
Appellants were relieved Richard Carew who married Penelope would have no Portion with her 'T was answered That that could not alter the Case the Agreement and Intention of the Parties being the most considerable Matter and besides Richard enjoyed the Estate during his Life without impeachment of Waste And as to the Debts 't was answered That those were no Ingredients in the Question however there would be 4000 l. paid towards it and the Personal Estate was more than enough to pay the residue For which and other Reasons 't was prayed that the Dismission might be Reversed On the other side it was insisted on with the Decree 1. That the Limitation by the Settlement in July 1674. to the Heirs of Penelope upon payment of 4000 l. by them to the Heirs of Richard Carew within Twelve Months after the death of Richard and Penelope without Issue at the time of the decease of the Survivor of them is a void Limitation the Fee-simple being before limited to Richard and his Heirs and so not capable of a further Limitation unless upon a Contingency to happen in the Life of one or more Persons in being at the time of the Settlement which is the furthest that the Judges have ever yet gone in allowing these Contingent Limitations upon a Fee and which were the Bounds set to these Limitations by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk that tho' there were such Expressions as had been read on the other side yet the Bounds set by him to these Limitations were only dependent upon Life or Lives in being and never as yet went any further And if they should be Extended and allowed to be good upon Contingencies to happen within Twelve Months after the Death of one or more Persons they may be as well allowed upon Contingencies to happen within a Thousand years by which all the Mischiefs that are the necessary Consequents of Perpetuities which have been so industriously avoided in all Ages will be let in and the Owner of a Fee-simple thus clogged would be no more capable of providing for the Necessities and Accidents of his Family then a bare Tenant for Life 2. If this Limitation were good 't was urged That the Estate limited to the Heirs of Penelope was virtually in her and her Heirs must claim by Descent from her and not as Purchasors and by Consequence this Estate is effectually barred by the Fine of Penelope the design of limiting this Power to the Heirs not being to exclude the Ancestor but because the Power could not in its nature be executed until after the decease of the Ancestor it being to take effect upon a Contingency that could not happen till after that time and this Bill and Appeal was not only to have the said Richard Carew who married Penelope to have not one Farthing Portion with his Wife but to make the now Respondent Sir Richard Carew to lose the 4855 l. which his Father Sir John Carew paid as charged on the Lands in question For which Reasons and many others well urged about the Mischief and Danger of Perpetuities and their Increase of late years to the intangling and ruine of many Families it was prayed that the Decree of Dismission might be affirmed but the same was Reversed Sir William Morley Knight of the Bath Plaintiff Versus Peter Jones Defendant WRit of Error to Reverse a Judgment in B.R. in Ejectment upon the Demise of Bellingham upon a Special Verdict which finds That Anne Bowyer Spinster was seized in Fee of the Mannor of Frencham that the said Anne and Edward Morley Esq and Sir William and J. Wells ante tempus quo c. viz. 22 July 1664. did make and as their Deed deliver a certain Indenture with their Seals sealed whereby the said Anne demises the Mannor aforesaid to Sir William and Wells and their Executors for one Month from the Day next before the Day of the Date that Sir W. and Wells entred and were possessed that they the 23d of July in the said Year sealed and as their Deed delivered another Indenture with their Seals sealed whereby the said Anne reciting a Marriage intended between Anne and Edward and that Edward had agreed to settle a Jointure out of his Lands to the value of 300 l. per Annum and that the said Anne had agreed in case the Marriage took effect and a Jointure were made as aforesaid to settle the said Mannor on him and his Heirs and to particular Trusts after-mentioned until the same be performed She the said Anne in consideration of the Marriage and in performance of the Agreement on her part Bargains Releases and Confirms to Sir W. and Wells their Heirs the said Mannor and all her Right c. and the Reversion c. in Trust for the said Anne and her Heirs until the Marriage take effect and assurance of a Jointure be made as aforesaid and after such Marriage and Assurance of such value as aforesaid then to the use of Edward and his Heirs c. Then the 1st of August 1664. a Marriage was had then the 29th of Jan. 1665. a Deed is Executed between the said Edward and Anne of the first part and Young and Truster as Trustees on the other part reciting that a Fine is already acknowledged and agreed to be levied in due Form of Law next Hillary Term between the said Young and Truster Plaintiffs and the said Edward and Anne his Wife of the said Mannor of Frencham and thereby declared that the said Fine should be to the use of Edward and his Heirs Two days after the Execution of that Deed and before the Fine levied viz. 31 Jan. 1665. another Writing indented was made and executed under Seal between the said Edward of the one part and the said Anne of the other part whereby they both in Consideration of the said Marriage and other good Causes did Covenant Consent and Agree to revoke all former Grants Bargains Contracts Writings Covenants and Obligations made or done between them or any other for them until the said Edward had performed the Agreements in the said Marriage Settlement on his part both in Law and Equity and that in default thereof it might be lawful for the said Anne and her Heirs to enter into the said Mannor and Land conveyed by the said Settlement without the lett of the said Edward and his Heirs Afterwards the Fine was levied Octabis Purificationis which was the 9th of February in that Term And afterwards by Indenture between the said Edward Morley of the one part and one Henry Doble of the other part dated 9 July 1666. the said Edward in consideration of 600 l. Mortgages the said Mannor to Doble and his Heirs Then the Money not being paid by Edward Morley to Doble Doble did 2 June 1676. in consideration of 600 l. with Interest paid by Sir William Morley conveys the said Mannor to one Thomas Young that Edward Morley did never convey the Lands agreed
specially That if Parol Evidence or a naked Averment should be admitted then they find to such Uses But here 't is like finding the Badges of Fraud without finding the Fraud it self or a Demand and Denial without finding a Conversion upon neither of which can the Court judge the Thing to be a Fraud or a Conversion And for these and other like Reasons it was prayed that the Judgment might be reversed It was argued on the other side with the Judgment That this Fine thus levied was not to the use of the Husband but of the Wife and her Heirs that the Fine is not to the Uses in the Deed of the 29th but controuled by that of the 31st 'T was agreed that if there be a Deed to levy a Fine and in pursuance thereof a Fine is levied to the Person of the Lands and at the time no Proof shall be allowed that the Fine was to any other Use but if it be in case of a subsequent Deed then Averment may be against it but by the making of a precedent Deed all Parties are estopped to contradict it unless there be another Deed of equal Nature to controul that Where the Deed is punctually observed there 's no liberty to aver the contrary but where 't is not pursued the Averment is consistent Where it doth vary yet if nothing doth appear to the contrary there the fine shall be construed to be to the Uses of the Deed by construction of Law a Wife is bound by the Husband's Declaration and if the Fine be in pursuance of the Husband's Deed 't is as binding to her as if she were a Party An Infant cannot avoid a Fine where there was a Deed agreeable but by reversing it Then 't was argued That here was such a Variance as did allow of such Averment that 't is true the Deed of 29. had been a good Declaration of the Uses of this Fine notwithstanding the Variance if the Writing of 31. had not been made but there being a Variance that is admissible that this Fine now found differs as much from that in the Deed as if it had been levied at a time after that levying it before makes it not the same The Woman perhaps here did agree to levy a Fine at this distance of time that she might in the mean while have a competent Provision out of her Husband's Estate for her Joynture then when she levies this Fine at a different time she doth not do it in pursuance of the first Deed. Then 1 Rep. 76 99. 3 Bulstr 231. 2 Rolls Abridg 251. 2 Cro. 646. 2 Rolls Abridg. 799. Savil 124. 1 Leon. 210. 3 Cro. 210. 1 And. 240. were quoted and either answered or applied to this Point of Variance Then 't was said That there was a difference between a Fine that varies from a precedent Deed and a Fine that is followed with a subsequent Deed or Declaration of Uses If there be a subsequent Declaration the Heir at Law cannot aver that 't was to the use of the Conusor and his Heirs or to any other use then what is in the Deed the Party himself or his Heirs cannot aver it but they are estopped by this Deed tho' subsequent however a Stranger is at liberty to make such Averment But if a Deed be precedent and the Fine varies and is not the same there none are estopped neither the Party himself his Heir nor a Stranger because the Fine stands alone without any Deed referring to it and declaring the uses of it ' Then 't was urged That this second Deed was sufficient to declare the uses of this Fine If the use arise upon or by transmutation of the Possession as by Fine or Feoffment 't is sufficient without any Deed the use arises only upon the Parties Declaration or Appointment If without a transmutation of Possession there must be some Agreement binding the Party upon some Consideration for the use being founded in Equity the Chancery would never relieve where there was no transmutation of Possession or Agreement upon Consideration and if in Consideration of Blood it must be by Deed because the Consideration is not binding without it Moore 's Rep. Callow and Callow If this Writing of 31. had expresly declared that it should enure to the Husband and his Heirs upon such a Contingency this had been a good original Declaration of the use and would have altered the Estate because of the transmutation of the Possession and as 't is now penned 't is a good Writing sufficient to declare the uses of the Fine any sort of Agreement whereby the Parties intent appears is sufficient an use is an equitable thing and if it appears to have been intended that is enough 2 Leon. 14. Brent's Case any Agreement between the Party that hath the Estate and him who is to have it may raise an use in this Case a Bargain and Sale of the Lands carries the use tho' no mention of it 8 Rep. Fox's Case Crossing and Scudamore In this Case there was an Agreement betwixt Husband and Wife that he should have the Lands if he made a Jointure A Bargain and Sale tho' not inrolled a Charter of Feoffment without Livery shall raise the use of a Fine levied between the same Parties therefore this Writing is a good Appointment But suppose it were not so of it self 't is sufficient to controul that of the 29th for 't is agreed thereby that all Deeds shall be revoked which shews plainly that the Fine was not to be to the uses mentioned in that Deed especially when it varies from it A Parol Declaration of the Mind of the Party will be enough to controul and hinder the raising of an use by the Deed and Fine where different and if so then the use here is to the Wife and her Heirs Then supposing the Variance frivolous and immaterial this Writing of the Husband and Wife is a good appointment the Trustees or Conusees of the Fine need not to be Parties to the appointing or declaring of the uses The Indenture precedent is but directory and if there be another direction under Seal before the Fine it must over-rule the first Writing of it self seems enough 2 Cro. 29. 3 Cro. 571. But suppose an Indorsment on the Indenture revoking one use before the Fine be levied would not that controul it This is rather like a last Will and the last before the Fine must stand A Covenant to stand seized must have all the necessary Parts of a Deed so as to have been obligatory in Chancery before the Statute but a meer Declaration of uses need not be so formal The use declared by the 29th was always revocable till the Fine was levied and this is sufficient both to revoke the last Declaration and to declare new uses this amounts at least to a Deed-Poll and therefore sufficient Then were cited Moore 22 512. Latch 139. and many other Authorities And upon the whole 't was prayed that the Judgment should
doth were not these Benefices void if the Parties were advanced to Bishopricks and upon such promotions did not the King present undoubtedly he did Then 't was argued That 't was never the Intent of this Act to oust the King of this Prerogative the first Intent was to make a Parish and establish a Rectory that was the true design Suppose the Act had only vested the Advowson in my Lord of London and had not mentioned the Lord Jermyn would not this Prerogative have been consistent with the Right of Patronage As to the pretence that the Bishop is to present first that is only to make a Partition 't is an Explanation That they should not have it in common but by turns The holding of Dr. Tennison was reckoned as one turn and the Bishop was to have the next besides every Act of Parliament is to be construed according to the Subject Matter and not further than the Act designs and intends 't is plain from the Nature of the thing That nothing was designed but to settle the Rectory and establish the manner of Presentation according to the Agreement of the parties General Words shall not oust the King of his Prerogative since he is not named 3 Cor. 542. Moor 540.7 Rep. 32. Plowd 240. Hob. 146. Here are no Words which do import any Intention to restrain the King of that Right with respect to this as he hath with respect to other Rectories The King's Prerogative doth not interfere with their being two Parishes this Prerogative must operate upon all presentative Livings so soon as they are made so This can never be pretended to be partly presentative and partly donative for Dr. Tennison was in by Act of Parliament as one presented Then it being a Cession of a presentative Rectory whether old or new 't is the King's Right to present Vernon's Case 4 Rep. 4. Plowd 127. The Dr. came in not by Donation but was rather placed in by Parliament which implies in it the Consent and all the necessary Acts of the Patron and Ordinary Suppose the King should grant away his own Advowson during a Plenarty and afterwards such a Cession should happen by promotion surely that would not deprive the King of his prerogative and by the same Reason it ought not in this Case Wherefore upon the whole Matter it was prayed That the Judgment should be affirmed and it was affirmed accordingly Dominus Rex Versus Reginald Tucker WRit of Error to reverse a Judgment given in B. R. for Reversal of a Judgment against T. before Commissioners of Oyer and Terminer upon an Indictment for High Treason The Record is to the Effect following Ad Gen ' Session ' de Oyer et Terminer tent ' pro Com' Somerset apud Civitat ' Wellen ' in dict Com' Somerset corum Francisco Wythens mil ' un ' c. Richardo Heath un ' c. Georgio Strode mil ' un ' Servient ' c. et aliis Sociis suis Justiciariis dicti Domini Regis per Liter as Patentes ipsius Dom ' Regis sub magno sigillo Anglie confect eisdem Francisco Wythens Richardo Heath Georgio Strode et aliis aliquibus tribus vel pluribus eorum direct ' quorum alter ' eorum praefat ' F. W. vel Richardum Heath Dictus Dominus Rex unum esse voluit ad inquirend ' per Sacramentum proborum et legalium Hominum Com' praed ' ac aliis viis modis et mediis c. assignat ' per Sacrament ' Francisci Warre Baronett ' c. proborum et legalium hominum Com' Somerset praed ' adtunc et ibid impannellat ' jurat ' et onerat ' ad inquirend ' pro Domino Rege pro Corpore Com' praed ' presentat ' existit quod Reginald Tucker nuper de Long Sutton in Com' praed ' Gen ' et Thomas Place nuper de Eddington in Com' praed ' Yeoman timorem Dei in cordibus suis non habentes nec debitum ligeantie sue ponderantes sed Instigatione diabolica mot ' et seduct ' dilection ' ac veram et debit ' obedientiam quas veri et Fideles subditi Domini Jacobi secundi nuper Regis Anglie c. erga ipsum Dominum Regem gererent et de jure gerere tenentur subtrahent ' et machinant ' et totis viribus suis intendent ' pacem et Communem tranquilitatem c. proditoris compassaverint imaginat ' fuer ' et intendebant dictum Dominum Regem supremum et naturalem Dominum suum ad mortem adducere et contra dictum Dominum Regem supremum verum naturalem et indubitatum Dominum suum prodotorie levaverunt guerram c. contra pacem dicti Domini Regis nunc Coron ' et Dignitat ' suas ac contra formam Statut ' in hujusmodi casu edit ' et provis ' Et statim de premissis in Indictament ' praed ' specificat ' superius eis imposit ' per cur ' hic allocut ' qualiter se vellent inde acquietari iidem Reginald Tucker et Thomas Place separatim dicunt c. The Judgment is per cur ' hic quod praed ' Reginald Tucker et Thomas Place ducantur eteorum uterque ducatur usque ad Gaolam dicti Domini Regis Com' praed ' unde venerunt et abinde usque ad locum Executionis trahantur et uterque eorum trahatur et super furcas ibidem per collum suspendantur et viventes ad terram prosternantur et uterque eorum prosternatur et interiora sua extra ventres eorum et utriusque eorum capiantur ipsisque viventibus ibidem comburantur et quod capita eorum et utriusque eorum amputentur quodque corpora eorum et utriusque eorum in quatuor partes dividantur et quod capita et quarteria illa ponantur ubi Dominus Rex ea assignare voluit c. And now it was argued on the behalf of the King That this Reversal was not justifiable that the Exceptions taken below were many and as to the Pretence that secreta membra amputentur was omitted the same was not allowed as Error below by reason of the many Precedents which in the Entries did omit it That tho' the Practice be common to pronounce it yet few or no ancient Records do mention it that in 3 Inst. 210. where the Judgment is taken notice of this is not part In Plowd 387. 't is omitted that Interiora includes it In Bro coron ' 128. 't is not inserted That this was never entred as part of the Judgment till 12 Car. 2. Then as to the separatim allocut ' upon the Arraignment that was likewise over-rul'd below for it must be intended a several Demand or Question And the same is implied in this Entry as much as if it had been express'd and the Precedents are both ways But the main and only Exception for which the Court revers'd the Judgment was That in the Indictment 't is not said to be a Fact done
Days of one whether they be many or few in number must be understood the Life c. That the Testatrix here could mean no other by Days but Life when she said That in case it pleased God to take her out of this World if it was his Will to give Days to give Life to her Child she left it all that belonged to her knowing well That if the Child was born alive it must be maintain'd from that Moment out of what was so left it that it appeared from the Preamble of the Codicil viz. In case it shall please God to take away my Child as well as my self then c. That the Testatrix never intended the Estate to go over unless the Child died as well as her self in her lying in Then it was argued from the Nature of the particular Legacies they were of such a sort as that they must be given without Sense or Reason had she not supposed her Child's Death as well as her own in her lying in for otherwise those new Ribbons must become old which were intended as a Present to a young Gentlewoman Clothes lockt up in a Trunk would have been of no use to Persons then in Distress and the poor Orphan had gone too far in Years to learn a Trade Then other Things are given as Tokens to be kept and worn by them for her sake as long as they lived Now what Reason can be assigned for this if she did not mean and suppose a Death in her lying in From whence it was inferred That the Intention of the Testatrix was to give all she had to her Child in case she survived her and if it did not survive her but was taken away as well as her self in her lying in then her Intention was to give that same All which she had given to her Child to other People as specified in the Will and unless this were the Intention the Child must have starved or lived upon Charity not having the Property of what was left it and the Condition precedent according to the Respondents Exposition excludes the Child till its Years of Discretion wherefore 't was prayed that the Decree might be reversed On the other side it was argued with the Decree that the same was just that no Objection could arise from the Nature of the other Legacies or of this as being reasonable or unreasonable for that 't is the Natural Right and Priviledge of every Person to dispose of that which they have at their pleasure to do what they will with their own a Priviledge so certain that tho' 't is used many times to ill purposes yet the Law cannot interpose nor restrain the Proprietor no not to preserve him and his Family from ruine as daily Experience shews That it is agreeable to Law and Justice and to true Piety to see that the Will of the Dead be performed and tho' the Law have ascertained how Estates shall go when there is no Will yet when there is a Will that disposes of it otherwise then the Law would do the Courts below will compel a Performance of such a Disposition as the Will directs Then 't was said That the Intention of the Testatrix in favour of the Respondent is both Charitable and Prudent He was her nearest Relation in England and considering a great part of what she left was once her Husbands she honourably gave as much to his as to her own Relations making her Husband's Sister and the Respondent Charles residuary Legatees to share equally and so is the Decree And to Reverse this Decree and permit the Appellant to go away with the whole as she must if the Decree be reversed doth directly destroy all the Prudent and Charitable Intentions of the Testatrix and carries the Estate where she never designed it viz. to the Appellant Then 't was argued That the Court of Chancery had done well in taking the Opinion of Persons skilled and knowing in the Matter in question that the Gentlemen of the Long-Robe of that Country now here in London did all give their Opinions that according to their Construction of these words in a Will it was an arrival to Years of Maturity or Age enabling to dispose that unless the Child had lived to such an Age as that she had been capable to give the same away her Representative in this Case could not be intituled to it Then ' was said That words are to be interpreted according to the Sense and Acceptation of those which use them That the Testatrix was a Native of France and therefore this method of Inquiring into her Meaning was just and reasonable That the Courts at Law have frequently consulted Merchants about the signification of Mercantile Terms and Trinity House about Marine Phrases so in like manner Grammarians Criticks Chymists and Artificers have been in the Court of Kings Bench consulted according to the Nature of the Thing in question upon words belonging to and used in their respective Professions That in case of words disposing of an Estate in a Foreign Language by the Will of a Foreigner the Judgment of Divines or Grammarians could be no proper Direction to the Court of Chancery but the Means of Information must be from those who were acquainted with the Rules of Interpretation in Case of Wills amongst those People That the Opinion of those Gentlemen was sufficient to justifie the Decree But then it was further argued That here the Meaning of the Testatrix could not be such as the Appellant would pretend i.e. that she meant to give her Estate to the Respondent and others only in case the Child she then went with should be still born or if born alive should dye with the Mother in her lying in for these Reasons First For that she was so far from apprehending that the Child would either be still born or if born alive would dye as soon as her self or in her lying in that she expected 't would live and as she hoped to full Age for she takes particular Care of its Education and earnestly recommends the same to the now Appellant and others prays God to bless it and not forsake it and hoped that all the Relations on the Father's side would for the Father's sake do it all the Services it should stand in need of Then taking it that the Testatrix did expect the Child to out-live her as unquestionably she did if her meaning had been such as the Appellant hath put upon her words the way to have it sure fixt to the Child and then to the Appellant had been to have made no Will at all because if the Child survived the Mother but a day or an hour or never so little the Law had vested the whole first in the Child in its own Right and upon the Child's decease in the Appellant as Administratrix to the Child Suppose the Child had outlived the Mother for a Month or the like what Interpretation could have been put upon this Will
the Plaintiffs Title or Charge This is no more then if they had traversed the Grant which they could not do In the Case of a common Person suppose the Defendant's Title not full yet if he traverses the Plaintiffs that 's enough Form requires an Inducement to a Traverse but the latter is only material for the Plaintiff to answer to for nothing can be traversed but what is material now why should it not have been a good answer to their Declaration to have said that Car. 2. presented by Lapse absque hoc that Car. 1. died seized for by this the Seisin or Presentation of Car. 2. had been avoided and there 's nothing else material in the Declaration for the Seisin of Queen Elizabeth and Jac. 1. are not to the purpose and if answered by the Defendant it must have been against him there had been a good Title for the King without it then supposing it necessary to shew how it came out of Car. 1. the Attorney General can only take Issue on the Traverse of his dying seized for that denies the whole Title that is material to be answered to Now whatsoever shews that the Plaintiff hath no right to the thing in demand is a good Plea let who will have the true right The true Title upon this Declaration is that Car. 1. presented and thereby became seized and died seized and the denying him to dye seized is a denial of this Title for if K. Car. 2. did present by Lapse and K. Car. 1. did not die seized 't is with the Defendant no Man is bound to answer that which if he do 't will still be against him but if a Man makes such an answer as if true the present Plaintiff hath no Title 't is enough Then if it be true that no Right descended from Car. 1. to Car. 2. and that Car. 2. presented only by Lapse what Right can his present Majesty have and all this is confessed by the Demurrer if well pleaded and 't is no Objection to say that the dying seized ought not to be traversed but only the Presentation for that is a mistake in case of Land 't is good and an Advowson is an Inheritance descendible in like manner and Mr. Attorney thinks it a good Traverse for he all along in his Declaration alledges a dying feized from Queen Elizabeth downward and there are several Presidents thus Winch's Ent. 661 662. and Winch. 912 686 692. and Buckler and Symonds Winch. 911 912. is of an Advowson in gross and in the same Book 35 59 are thus A man may die seized of an Advowson as well as of Land and if he doth not dye seized it doth not descend and the Seisin in gross is not to be traversed as is 1 Anderson 269. and Hob. 102. ' Then 't was said that the true Reason and Nature of a material good Traverse is well explained in Vaughan's first Case of Tufton and Sir Rich. Temple and 1 Saund. 21 22. and it is this especially in a Quare Impedit If any thing in the Count be travers'd it must be such Part as if true is inconsistent with the Defendants Title and if false or found against the Plaintiff doth absolutely destroy his Title nay if the Traverse leaves no Title in the Plaintiff then 't is good whatsoever comes of the Defendants Then the Difficulty is If the King by his Prerogative may waive his own Title which is traversed and insist upon the Deficiency of that which the Defendant alledges and in the Case of the King and the Bishop of Worcester and Jervis in Vaughan 53. there 't is said That the King ought to maintain his own and not to question the Defendants he cannot desert that which he hath alledged for himself and fall upon the Defendants Title and Reason warrants such Rule for tho' the King hath no Damages in a Quare Impedit notwithstanding his laying it ad dampnum Hob. 23 yet the Suit supposes an Hindrance and Damage to the King and if the Right be not his he hath no Cause to complain of the Defendant tho' another hath Every Man is to recover by his own Strength and not by the Weakness of the Defendants Pretensions and if the Law be thus then how can Mr. Attorney-General take Advantage of this upon Demurrer after Oyer for now upon Oyer 't is as they say become Part of the Defendants Plea and consequently it must be part of the Inducement and if so he ought in that Case to have taken Issue upon the Traverse which denied his Master's Title Wherefore upon the whole Matter it was prayed That the Judgment should be reversed On the other side 't was argued for the King That this Judgment ought to stand and as to the last point 't was said That taking it for granted the King could not traverse any Point of the Defendants Plea yet certainly he might demurr upon the whole in case it were insufficient That now Oyer was craved and had the Deed did become part of the Defendants Plea and must be taken as such That tho' there had been no need of a Profert yet when 't is produced 't is such as he hath pleaded and upon the whole the Court is to judge there being a Demurrer That as the Case stood the King might take advantage of both the Exceptions That the Declaration of it self was good and if the Plea be naught the King ought to have Judgment for him That every Plea is to be taken most strongly against the Party that pleads it That here the Defendant had admitted K. Car. 1. well seized that he ought to shew it out of him otherwise the Plea was ill that every Traverse must have an Inducement That if upon the whole Plea it did not appear that King Car. 1. parted with this Advowson 't is naught That if by the Parties own shewing it was manifest to the Court That the King continued seized and what he doth further shew no ways contradicts it he could not traverse the dying seized and therefore a Demurrer was most proper and consequently upon this Demurrer they were let in to affirm that nothing passed from the King by these Letters Patents of Car. 1. Then it was argued That this Grant was void because it was to a Person then Esq that Tunc Armigero can have Reference only to the time of the Letters Patents that a Man cannot be a Knight and an Esq at the same time that Knight is part of his Name and the Title of Esq is drowned in that of Knight that the old Books are thus 7 Hen. 4.7 14 Hen. 6.15 21 Edw. 4.72 2 Inst. 594. 666. Hutt 41. Bro. Tit. nosme 33. 1 Cro. 372. That 't is true if a Deed of Feoffment be made to a Man by a wrong Name and Livery be thereupon had 't is good but all the Books make a difference between that Case and where it is by Deed where the Operation is altogether by Deed Then was cited
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
Witham deceased WRit of Error on a Judgment given in B. R. for Sir John Witham and Sir Richard Dutton and the Award of Execution thereof upon Scire Fac ' brought by the Defendants as Executors of Sir John Witham and affirmed in the Exchequer Chamber in Trespass and False Imprisonment The Case on the Record was thus The Plaintiff William did declare versus Dutton for that he with Sir Robert Davis Baronet Sir Timothy Thornhill Henry Walrond Thomas Walrond and Samuel Rayner did 14 Octob. 36 Car. 2. at L. in Par ' Ward ' c. assault beat and wound the Plaintiff and imprisoned him and his Goods then found did take and seize and the Plaintiff in Prison and the Goods and Chattels from the Plaintiff did detain and keep for three Months next following by which the Plaintiff lost the Profit he might have made of his Goods and was put to Charges c. Contra pac ' ad damp ' 13000 l. The Defendant pleads Not Guilty as to the Venir ' vi armis and all the Assault Imprisonment and Deteiner in Prison before the Sixth of November and after the Twentieth of December in the same Year and as to the beating and wounding and taking seizing and detaining his Goods and thereupon Issue is joyned and as to the assault taking and imprisoning the Plaintiff the Sixth of November and detaining him from thence until in and upon the Twentieth of December The Defendant doth justifie for that long before viz. the 28th of Octob. 32 Car. 2. by his Letters Patents shewn to the Court did constitute and appoint the Defendant his Captain General and Chief Governour in and upon the Islands of Barbadoes and c. and the rest of the Islands lying c. and thereby commanded him to do and execute all things that belonged to that Government and the Trust in him reposed according to the several powers and directions granted to the Defendant by the Letters Patents and Instructions with them given or by such other powers or instructions as at any time should be granted or appointed the Defendant under the King's Sign Manual and according to the reasonable Laws as then were or after should be made by the Defendant with advice and consent of the Councel and Assembly of the respective Islands appoints twelve Men by name viz. Sir P. L. H. D. H. W. S. N. T. W. J. Witham the Plaintiff J. P. J. S. R. H. E. S. T. W. and H. B. to be of the King's Counsel of the Island during the pleasure of the King to be assistant to the Defendant with their Counsel in the management of the Things and Concerns of the Government of the said Island in relation to the King's Service and good of his Subjects there and gives power to the Defendant after he himself had taken the Oath of Office to administer to every Member of the Councel and Deputy Governour the Oaths of Allegiance and Supremacy and the Oath of Office with further power to the Governour by advice and consent of Counsel to summon and hold a General Assembly of the Freeholders and Planters there and to make Laws Statutes and Ordinances for the good Government of the Island and to be as near and consonant as convenlently may to the Laws and Statutes of England which Laws were to be transmitted to be allowed by the King here with power also by advice and consent of Counsel to erect and establish such and so many Courts of Judicature as he shall think fit for hearing and determining all Causes as well Criminal as Civil according to Law and Equity and to appoint Judges Justices of Peace Sheriffs and other necessary Officers for administring of Justice and putting the Laws in execution provided Copies of such Establishments be transmitted to the King to be allowed and with further power to the Governour to constitute and appoint Deputy Governours in the respective Islands and Plantations which then were or should be under his Command to all and every which respective Governours the King by these Letters Patents gave power and authority to do and execute what should be commanded them by the Governour according to the power granted to him by this Commission And the Governor's Authority to continue during the good will and pleasure of the King The Defendant further pleads That after the making of the Letters Patents and before the time of the Assault and Imprisonment viz. 1 Mart. 33 Car. 2. he arrived at Barbadoes and by virtue of the Letters Patents aforementioned he took upon him and exercised the Government of that and the other Islands and continued to do so till the first of May 35 Car. 2. when he had license to return to England That he before his departure by virtue of the said Letters Patents by a certain Commission under his Hand and Seal did constitute the Plaintiff in his absence to be his Deputy Governour in the said Islands of Barbadoes to do and execute the Powers and Authorities granted to the Defendant by the said Letters Patents That the first of August following the Defendant arrived at London in England that the fourth of May 35 Car. 2. after the Defendants departure the Plaintiff took upon himself the Administration of the Government of the Island of Barbadoes that the Plaintiff not regarding the Trust reposed in him by the Defendant nor the Honour of that Supreme Place and Office did unlawfully and arbitrarily execute that Government and Office to the Oppression of the King's Subjects viz. apud Lond ' praed ' in Par ' Ward ' praed ' That after the Return of the Defendant to the Barbadoes viz. 6 Nov. 35 Car. 2. at a Councel holden for the Island of Barbadoes at St. Michael's Town before the Defendant H. W. J. P. E. S. T. W. F. B. which five are of the twelve named Councel in the Letters Patents and Sir Timothy Thornhill and Robert Dawes Counsel for the Island aforesaid the Plaintiff then and there was charged that he in the absence of the Defendant misbehaved himself in the Administration of the Government of the said Island Non tantum in not taking the usual Oath of Office and not observing the Act of Navigation And by his illegal assuming the Title of Lieutenant Governour and altering and changing Orders and Decrees made in Chancery of the said Island according to his own will and pleasure at his own Chamber and altering the Sense and Substance of them from what was ordered in Court by and with the consent of the Councel upon which it was then and there ordered in Councel by the Defendant and Councel that the Plaintiff Sir John Witham should be committed to c. until he should be discharged by due Course of Law by virtue of which Order the Plaintiff the said sixth of Nov. was taken and detained until the 20th of Dec. upon which day he was brought to the Court of the General Sessions of Oyer and Terminer and then by
to hold a Curacy of Souls and this is the Reason all their Cases go upon and the Reason insisted upon below i. e. in effect that they must try it not the Archbishop The same Pretence is applicable to any other defect and 't will in Consequence confound Jurisdictions 't will make an Enlargement of the Temporal and Diminution of the Ecclesiastical Jurisdictions tho' both are founded upon the same English Laws and of equal Age and Authority Nor is it any Answer which they have alledged against this That the Judgment at Law is not that this Hodder shall have Institution but that a Writ shall go to the Metropolitan to require him to admit a fit Person upon Mr. Hele's Presentation and that if Mr. Hodder be presented the Archbishop may refuse him as insufficient and so the Archbishop is still Judge of the Sufficiency This looks plausible but they omit or forget the Consequence that if this Judgment stand then if the Archbishop refuse the Temporal Courts must Judge upon another Writ Whether the Cause of Refusal were in a point of Learning which they think requisite for he must not plead a general Defect of Learning but mention Particulars that they may judge of them this is to subject even his Grace the Metropolitan to their Opinion in an Affair within his own Jurisdiction and Conusance It is at last to enforce the Episcopal Judges to contradict their own Opinions and to admit Persons which they think not sufficiently Learned tho' the first Judgment doth not directly place in Hodder yet the next will if the Archbishop prove of the same mind Now this is apparently the Consequence from the pretended Reason of the Judgment for them and it is in effect to deny the old Law that a defect of Learning is a sufficient Cause of Refusal and that the Ordinary is Judge of that Defect and not the Temporal Court And then as to the Cases objected Dyer 254. the Bishop of Norwich's Case in a Quare Impedit which is likewise in 2 Rolls Abridg 355 where the Bishop pleads that the Presentee was a common haunter of Taverns and other Places and Games unlawful ob quod diversa alia Crimina consimilia praed ' the Presentee fuit Criminosus sic inhabilis non idonea persona and this was held an ill Plea But the Grounds and Reasons of that Judgment were not for the generality of the Plea but because the defects specially declared before were not sufficient to make the Presentee sic Criminosus as being not Mala in se but prohibita by particular Laws under certain Penalties Nay the Argument they would make from the general word Criminosus will not hold in the Case in question but is clearly distinguishable from it because one single Act one Crime specially set forth would disable the Man but in this case Ignorance that works a Disability must not be of any one particular thing whatsoever but a general defect of Knowledge And another Reason against their Inference from these and the like Cases is this they belong to a different Examen and upon that they require as was said before a different pleading The great Case and the only one that can be pretended to come near this is Speccot's Case mentioned in every contemporary Report of that Age as a new Case and a new one it is and the Reasons of it are differently reported in divers Books and in truth the Reasons of the Judgment do not warrant it nor make it applicable to the Case at Bar. The Authority of it is questionable for they agree Schism or Heresie which the Judges there take to be all one a Cause of Refusal and others said they did not know what was Schismaticus inveteratus but they did not consider that the Archbishop might tho' they did not but perhaps the Ordinary may judge that to be Schism which is not and therefore the Temporal Courts are to judge what is Schism and in the enforcing of this Case below they said the Ordinary is Judge only of Matters of Fact not if the Fact be Schism which is somewhat strange The Reports of that Case are 5 Rep. 57. 1 Anderson 189 190. Gold 36 and 52. and 3 Leon. 198 199 and 300. in that Case the Bishop pleaded that the Presentee was Schismaticus inveteratus ideo non habilis upon the validity of this Plea there were divers Arguments Two of the Judges says my Lord Anderson were for the Plaintiff and two for the Defendant and for the Decision of the Matter the Opinion of the other was asked and by the greater Opinion Judgment was given pro quer Then were repeated my Lord Anderson's words fol. 189. the Instances that were urged were says he Criminosus Perjurus but they are Matters triable both by Law Spiritual and Temporal and the Coment or how is necessary to be shewn to determine the Trial but Schismaticus in the principal Cause shall be tried only by the Spiritual Court and not by the Temporal as that of an Heretick may be generally pleaded And divers Cases were put to prove General Pleas and Issues triable at Common Law and yet says he Judged pro Quer ' This is my Lord Anderson's Opinion of that Case and whether the Ancient Authorities vouched in that Case do warrant that Judgment must be submitted Besides by our Law 't is not any one Opinion tho' judicially delivered that can make or alter the Law nay it doth not oblige any further than the reason of it is considerable and agrees with the constitution and the Rules of Law my Lord Vaughan always declared in favour of Reason and Authority and that in Honour of our Law for the contrary is to say 't is founded upon no Reason then 't was urged that this Judgment was when the Courts below were in struggle with the Ecclesiastical and the then High Commission Courts Erected by 1 Eliz. had given some provocation which with frequent Prohibitions gave occasions to the Disputes between the Bishops and the Judges in the beginning of the Reign of K. Jac. 1. But admitting the Case to be Law the same is easily distinguishable from this and founded upon different Reasons which cannot govern or influence this 'T was urged first in that Case there was some possibility for the Bishop to have set out the Heresie certainly and particularly for all Heresie must be founded upon some particular Tenet that is Repugnant to the common received and Orthodox Doctrine Now in this Case say they the Heresie ought to be Assigned that the party may Traverse it and purge himself and the Arch-Bishop not to be inveighled and obliged to run over all the species of Heresie which say they may be almost impossible but may have only one particular Opinion to Examine whether the Presentee did obstinately maintain it for if the Temporal Court had been of Opinion that such Tenet in particular was not Heresie tho' the Ordinary thought it so
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
be true and duly tendered then this Writ and if it be returned quod non ita est then an Action for a false return and thereupon the surmise will be tried and if found to be so Damages and upon such a Recovery a peremptory Writ Commanding the same that the Law is thus seems plain tho' no precedent can be shewn of such a Writ 't is only for this Reason because no Judge did ever refuse to Seal a Bill of Exceptions and none was ever refused because none was ever tendred like to this so artificial and groundless But that such Actions lie upon this Statute were Cited Regist 174. Nat. Br. 10. and they are called Attachments and Damages shall be to the Party and a Fine to the King so it is in all Cases of Statute Laws which do either prohibit or Command the doing of a thing for the advantage of any person such person if injured by a disobedience to that Law is intitled to an Action tho' the Statute doth not in express words give one 2 Inst 55.74.118.131 and the same holds in judicial proceedings the Case of the Marshalseas 10 Rep. 75. 4 Edw. 4.37 and the same Reason warrants the Action for a Scandal ' Magnat ' But perhaps 't will be said that tho' an Action lies for a disobedience to this Writ yet the Writ not being returnable no Action lies for a false return and consequently no peremptory Writ and by consequence there 's no adequate remedy in case of an unjust Refusal but to this it may be answered That the Writ being Conditional 't is a good Answer to it that the Fact was not as is surmised and that return will justifie the Refusal And certainly such return may be made and if not when the first Writ is proved to be true in all its Suggestions by Judgment in an Action for not obeying it the same Reason will warrant a peremptory Writ But whether this be thus or not it only argues an imperfection in the Law proper for the notice of the Legislature and will not justifie the method of proceeding now attempted here in this place It hath been Objected That such Proceedings are not like to be successful because Judges still are to try those matters but these are Reflections not Arguments and our Constitution is founded on a Notion that parity of Condition is the best Qualification of a trier and here must be a Jury to try the Fact and they are subject to an Attaint if their Verdict contradict the Evidence And no direction of a Judge can excuse them for if it be a point of Law they are not oblig'd to find a special Verdict but may find a general one upon their own peril of an Attaint Then Either this is designed as a Criminal proceeding against the Judges in order to Punishment or as a Civil proceeding for to gain Damages to the Party or else neither one nor the other but to have an Order Commanding the thing to be done which if refused then to have them compelled by Imprisonment quousque c. neither of the first are pretended and the last is not a Warrantble method when the Law hath prescribed a Writ in Chancery and that 's not prosecuted Here cannot be tried the particular requisites to ground such an Order as they desire as whether the Evidence or Exception as stated was offered at the Trial or if offered whether 't was over-ruled nor whether the matter offered were believed for if not believed it makes no Evidence and so can raise no point in Law There can be no Jury impanelled to try this nor can an Issue be directed hence for the trial of it By this means the Judges lose the benefit of that legal Trial by a Jury of their Peers which is their fence and protection against Power Art or Surprize the best for indifference and discovery of Truth The Institution of the Law is cautions and wise in its provision for both Challenges are admitted below 't is derogatory to the Honour of this Court to suppose it necessary here but to have it in Westminster-Hall is however reckoned a Commoner's priviledge and Birth-right there the Law is determined by one and the Fact is ascertained by another here both are in the same hands Not that any Jealousie can be supposed of mischief by it in this House but the practice of it now may give president to future Reigns and Ages in which there may be danger of a partiality Below there are by the Law appointed and provided particular Terms and days for doing Justice and they are certain the distances between them are known according to the nature of the Suit which capacitates the parties concerned their Agents and Witnesses to be ready and there can be no surprize It must not be presumed That this House may err but if any Error be possible 't is impossible for the Judges to be relieved for these Reasons in respect of the Court for no Address can be made in such case but to the same persons who did the wrong which is always with some prejudice or disadvantage because the party Erring is to Judge if he himself hath Erred Then the Proceedings here being in English and Summary it cannot well be made appear what was the proof in the first instance no Record being kept thereof Then suppose Evidence be allowed which is none the person against whom the same is given is remediless these Evils may happen in the repeating of this practise in the next Reign tho' they cannot in the present Then this method is not only against the general tenor and frame of the Common-Law but against divers Acts of Parliament and Declarations of this House Magna Charta 9 Hen. 3. cap. 29. is express per judicium parium vel per legem terre now the latter only refers to such cases which are not Triable per jud ' par ' besides to make it the lex terre there must be Ancient and continual usage 22 Edw. 3. numb 30. shews that no new practice can make a Law By 25 Ed. 3. cap. 4. 't is Enacted That no Man shall be taken by Petition or Suggestion to the King or to his Counsel without Presentment or by process or Writ Original at Common-Law and that none shall be put out of his Franchise or Freehold but by due course of Law before used here the one explains the other by Writ or due course of Law are taken for the same thing and both used in contradistinction to Petition the 28 Ed. 3. cap. 3. is the same Then the 42 Edw. 3. cap. 3. 't is by due process and Original Writ according to the Old Law of the Land the 1 Rich. 2. numb 87. Cott. 162. no Suit to be determined before the Lords or before the Counsel but before the Justices only But the 4 Hen. 4. cap. 23. is fuller it recites That in Pleas as well real as personal in the King's Courts the parties be made to come
there could be no colour for a Doubt By 1 Inst 42. 'T is an Estate for Life determinable upon Misbehaviour for during good Behaviour is during Life 't is so long as he doth behave himself well i.e. If he behaves himself well in it so long as he lives he is to have it so long as he lives during Life and during good Demeanour are therefore synonymous Phrases the same thing when used with relation to Offices the Condition annexed if observed continues it during Life the contrary determines it This is the Rule and Law in case of Offices in general and must hold in this for this is an Office 2 Hen. 7.1 He is called Att ' Domini Regis 'T is capable of being enjoyed for Life and consequently of being granted so especially when an Act of Parliament declares it shall be so There 's nothing in the nature of the Employment that hinders it and there can be no doubt but that a Statute may impower a Custos in possession who hath only an Estate at will to name a Clerk to hold during Life or good Behaviour The Justices are at pleasure Suppose then the Act had said That they should name him in this manner he must have continued tho' they had died or had been removed the Case is the same here he is as much intrusted with the Acts of the Justices as with the Records belonging to the keeping of the Custos Then there 's nothing in the Act that savours of an Intention to make him dependent on the Custos's Office The Custos is to name him but the Justices have the controul over him he is an Officer to the Sessions and the Justices only can remove him The Limitation of the Interest of the Custos in his Office and that of the Clerk are different and that shews that the duration of the one was not to depend on the other Besides the Custos is to name not when he shall be made Custos as it would have been worded if the intention advanced on the other side had been true but whensoever it shall be void It doth not say Every new Custos shall or that every Custos shall name but generally when 't is void he shall c. Then as to the Objection That this new Act is consistent with the 37 Hen. 8. and therefore that is still in force 'T was answered That by the former Act he was intirely placed under the Custos who had power to displace him upon Miscarriage the Sessions then could not do it tho' a Court and a Court of Record they might suspend him but could not deprive him of his Office even for ill Demeanour This was that Act. Now the present Law abridges the power of the Custos he must name a Resident before he might appoint any able Person the Person was then removable by the Custos now only by the Justices Care is taken that nothing is to be given for the Office and now he may make a Deputy without the approbation of the Custos Here 's plainly a different Jurisdiction over him and a different Estate vested in him this express Limitation of the Interest to him is an Exclusion of the former Estate as dependant upon that of the Custos And besides this is a Substantive distinct enacting Clause of it self and no ways relating to the Statute of Hen. 8. Why was this Limitation penned differently from that unless to give another sort of Interest As to the Cases of new Laws which repeal former 't was said That the Rule was certain that whatsoever Statute is introductive of a new Law tho' penned in the affirmative is a Repeal of the former as implying a negative i. e. the latter ought to be observed if it concerns the same Matter The Statute of Edw. 6. controuled the Statute of Hen. 8. One directed the Keeper to name the other the King and both are in the affirmative yet the latter must be observed And if this be a new Estate as it hath been adjudged below then the Party ought to enjoy it And for this was cited 1 Sid. 55. Plowd 113. and other Books Then 't was said That the Clerk of the Peace named by the Justices in default of the Custos would have an Estate for Life and by the same reason it ought to be so here Tho' the Custos be to be named according to the Statute of Hen. 8. yet he is not to execute his Power of Custos according to that Act but is tied to a Resident hath not the Approbation of a Deputy and cannot remove By the Statute of Hen. 8. the Clerk had but an Estate at the will of the King the Custos having no other This is so long as he doth well in his Office these are different and when the Custos hath named him he is in by the Statute If what they on the other side contend for had been intended there was no need of these words of Limitation at all and the words in like manner as by the former act had fulfilled the intention if such had been As to the word only that would make no Alteration in the Case of any other Office Suppose an Office granted to a Man quamdiu tantum or solummodo se bene gesserit would that give less then an Estate for Life The word only was added not to abridge the Estate of the Clerk but rather to restrain the Power of the Custos that he should have Authority only to limit it during good Behaviour and not for a less Interest or Estate The Custos is confined that he shall not grant it for Years or at Pleasure Besides only is but just so long and no longer or so long as and 't is the same thing with the word as without it Dummodo sola vixerit is during all her Widowhood Suppose a power to make Leases to hold only for and during the term of 21 Years the same would be good for the whole Term. Then 't is no Objection That the Estate of the Clerk is greater than his is who names him for that may be by Custom as in the Offices in Westminster-hall Hobart 153. and the Clerks of Assize where usage fixes the Estate And the like in Case of Power to make Leases upon Family Settlements to Uses where Tenant for Life grants larger Interests then his own 'T is true the Powers and Estates raised by them issue out of the Inheritance but the Tenant for Life only names them as the Custos doth here tho' the Statute gives the Interest As to the Inconvenience That dependent Offices should continue against the will of their Superiours that can be no Objection since there are few great Officers in the Realm but have many Substitutes and Inferiours under them which were named by their Predecessors and are not removable almost every Bishop in England is under these Circumstances with respect to the Register of his own Court who notes and records his Acts c. This is an
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